How It Should Work

The Pre-Trial Process

STEP 1: ARREST

▪ Law Enforcement take a suspect into custody.

STEP 2: CHARGES

▪ The Prosecutor determines whether the evidence is sufficient to charge a suspect with a crime.

STEP 3: ARRAIGNMENT

▪ A Defendant enters plea, often “not-guilty.” The judge makes sure attorneys are appointed for defendants without resources. Judges also consider bail amounts and the defendant’s custody status.

STEP 4: DISCOVERY

▪ The Prosecution and Defense exchange evidence, especially reports and information concerning witnesses and statements they have made. The “discovery” process begins way before the trial, but can continue throughout the proceeding as new evidence arises.

STEP 5: PRELIMINARY HEARING

▪ Almost like a “mini-trial” where the judge determines, after presentation of evidence, whether enough probable cause exists to support the defendant going to trial.

STEP 6: PRE-TRIAL MOTIONS

▪ The Judge may be asked to make decisions about disputes between the Prosecution and the defense attorneys regarding possible evidence, or requests for change of trial location. The final pre-trial hearing involves requests by each side to exclude or permit certain evidence from being presented at trial.

**It’s interesting that most criminal defendants agree to plead guilty, or “no-contest” before a trial begins.

Trial

STEP 7: JURY SELECTION

▪ The Prosecution and the defense select jurors. Some jurors may be disqualified if they exhibit potential bias or if they know one of the witnesses. Each side also has a limited number of preemptory challenges to disqualify unwanted jurors without stating a reason. After both sides agree on the jury of 12, and one or two alternates, the jury is sworn in and the trial may begin.

STEP 8: OPENING STATEMENTS

▪ The Prosecution and defense each speak directly to the jury by providing a road map to their case.

STEP 9: PROSECUTION CASE

▪ The Prosecution presents it’s witnesses. Defense not only may cross-examine these witnesses, but it also may object to any steps by the prosecution that it considers prejudicial or improper under the law. The judge may sustain or overrule objections, and allow or ban prosecution evidence.

STEP 10: DEFENSE CASE

▪ The Defense then presents it’s witnesses, subject to prosecution cross-examination. The judge may allow or ban evidence. Because the prosecution has the burden to prove guilt beyond a reasonable doubt, the defense may elect to present no evidence at all. The defendant may testify, or may chose not to testify at this time.

STEP 11: REBUTTAL EVIDENCE

▪ If the defense has called witnesses, the prosecution can call additional witnesses, subject to cross-examination, to respond to the defense case.

STEP 12: CLOSING ARGUMENTS

▪ The Prosecution first argues to the jury that the evidence presented at trial, requires the jury to find the defendant guilty. The Defense will then argue that the prosecution has not proven guilty beyond a reasonable doubt, or argues for a different interpretation of the evidence. After the defense argues, the Prosecution gets a final chance to respond in a rebuttal argument to the jury. Both sides may object to improper statements made during closing arguments.

STEP 13: JURY INSTRUCTIONS

▪ After the closing arguments, the Judge instructs the jury on the law and how it should be applied to facts presented at trial.

STEP 14: JURY DELIBERATIONS

▪ The Jury goes into the deliberation room and considers the case, they may ask to inspect evidence or have portions of trial record repeated. The jury must make a unanimous decision for a guilty or not guilty verdict. If the jury is unable to make a unanimous decision, it is called a “hung jury.”

STEP 15: VERDICT

▪ The Jury announces the charges on which it has reached a unanimous agreement, and those—if any—about which it cannot agree.

STEP 16: SENTENCING

▪ The Judge will impose a sentence, after considering recommendations from the probation officer who reviewed case, victim statements, and statements from the defendant and other interested parties.

Appeal

STEP 17: APPEAL INITIATED

▪ In non-capital cases that end in conviction, the defense has a right to appeal to the 5th District Court of Appeal. New attorneys hired—or appointed for indigent defendants—and the Attorney General takes over for the prosecution. The Lower court prepares transcript that becomes part of the appellate record.

STEP 18: OPENING BRIEFS

▪ The defense outlines allegations of errors during trial, especially on part of prosecutor or judge. The Attorney General replies to defense brief, arguing for verdict to be upheld; defense then files reply to prosecution brief.

STEP 19: ORAL ARGUMENTS

▪ Defense has right, which can be declined, to present oral argument to three-justice panel assigned to case. Because appeal involves only issues in the trial record, no witnesses are called.

STEP 20: DECISION

▪ Three-justice panel issues order upholding, modifying or overturning the conviction. The panel’s accompanying opinion explains its legal findings. Justices will either respond to each allegation of error or rule that lack of proper objections eliminated need for ruling.

STEP 21: COLLATERAL APPEAL

▪ If defense wants to go outside record—either contending new evidence has arisen, or challenging defense attorney’s failure at trial—it does so in a separate habeas corpus filing. Justices may deny collateral appeals without explanation.

STEP 22: FURTHER APPEALS

▪ Defendant may appeal to state Supreme Court, which is not required to accept case. Defense may later turn to federal courts if issues of federal constitutional error are involved.