Often times, clients and/or their family members come to me having no idea how the criminal justice system works. They are in a new situation and have many fears because the unknown is scary. Television and movies have formed many opinions and beliefs about the way things happen when someone is charged with a crime. Unfortunately, many of these ideas or just for show and not realistic. I do all I can to inform my clients and their family members regarding the process they are going to go through when entering the criminal justice system in Louisiana. I have written this article as a basic guide on some of the main principles and procedures that most defendants face. This is not a complete guide to every part of the system. If you have a charge, seek an attorney for advice.
Every case begins differently. However, all arrests must be based on the existence of probable cause. Probable cause to believe the suspect committed a crime may develop as a result of the officer witnessing the criminal conduct. It may also develop as a result of the officer speaking to witnesses of criminal conduct. To establish probable cause, officers must engage in investigations to establish and identify facts and circumstances that would lead one to reasonably conclude that the suspect committed a crime. An investigation can for last hours and it can last for years.
At the conclusion of an investigation, if the officer believes that he has enough to establish probable cause, he will fill out an affidavit of probable cause. He will then present the affidavit to the judge with an accompanying warrant. The warrant may be an arrest warrant and/or search warrant. This gives the officer the authority to make an arrest and/or search an area. If the suspect cannot be found of the officer after due diligence, the arrest warrant can remain active forever. In this case, the suspect will have to turn himself in to make the arrest warrant go away.
Not all cases begin with arrest. Some cases begin with the issuing of a summons, which is only applicable for misdemeanors. However, the officer may also arrest suspects on many misdemeanors. Sometimes, the misdemeanor will include notice of the court date. Other times, a court date will be sent to the defendant. A misdemeanor summons is different than a traffic ticket because it requires the presence in court.
The very first court date in a criminal prosecution is called the arraignment. If the defendant is received a summons, the arraignment date is the date on the summons. At the arraignment, the defendant is informed of the formal charges against him. These charges may differ from the charges he was arrested or for which he received a summons. The reason that the charges may be different is that before the arraignment date the prosecutor has reviewed the arrest/summons and has filed charges accordingly. After the defendant is informed of the charges in court, he must enter a plea of not guilty, guilty, nolo contendere, not guilty by reason of insanity. Commonly, a not guilty plea is entered at this stage of the process.
A criminal case may involve a single or multiple court dates in which the defense attorney may argue motions relevant to the case. Motions that may be relevant could include motions for discovery, Bill of particulars, motion to suppress, motion to compel, motion for bond reduction, preliminary hearing, motion to quash, and motion to dismiss. Not every case will require these motions. Some cases will require other motions. This is the phase of the criminal court process where the defense is learning about the facts which could become evidence in the trial against the defendant.
In many jurisdictions, judges will hold pretrial conferences. These are conferences between the judge, the prosecutor, and the defense attorney. These conferences may be held in open court or in the judge’s chambers. This is a very important stage of the trial process because this is when negotiation becomes important.
Trial is what is commonly seen in television and in movies. In Louisiana, a defendant with felony charges may be tried by a judge or jury. However, the defendant has a right only to a judge trial for misdemeanors. Trial is where the prosecutor presents facts and circumstances to the trier of fact in an attempt to establish beyond a reasonable doubt that the defendant committed the crime for which he is been accused. The burden of proof is solely on the prosecutor. In jury trials, the jury determines whether the defendant is guilty or not guilty. The judge trial, only the judge determines whether the defendant is guilty or not guilty.
After conviction, which may include being found guilty at trial or pleading guilty, the judge will then sentence the defendant. The judge may sentence the defendant immediately or request a pretrial sentence investigation turned learn more about the defendant prior to sentencing. The sentence will be based on many factors. Factors may include a type of charge for which the defendant was convicted, the facts involved in the crime, the background of the defendant, and many other various factors.
If you or someone you know is charged with a crime in Louisiana, CONTACT our Louisiana criminal defense attorney.