Broward County Criminal Defense Attorney explains the Criminal Court Process…by Neil C. Kerch
Being arrested is often a very traumatic and difficult experience. It is a stressful event that can have a lasting impact on your life. This post explain the steps you will go though if you are arrested and charged with a crime in Florida.
FIRST APPEARANCE
Once you are arrested, you will appear for a First Appearance if you have not already posted bond. Florida law requires that all persons arrested will appear before a judge within 24 hours of your arrest. The judge will then advise you of the charge(s) for which you have been arrested. The judge will then decide if the police had a sufficient legal basis to arrest you. This is also referred to as a probable cause determination. You should not make statements about your case at this hearing. The judge will ask if you wish to be represented by an attorney and, if so, whether you intend to hire private counsel. The judge will then decide if pretrial release (bail) is appropriate in your case, and if so, how much.
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BAIL / BOND
The purpose of bail is to insure your presence at your scheduled court appearances. You have a right to bail, unless you are charged with a capital crime (i.e. carries a penalty of either life imprisonment or death) or you are facing a violation of probation. Under the Florida Rules of Criminal Procedure non-monetary conditions of release are specifically preferred; however it is the general practice for a judge to require that a bond be posted. In setting bail, the judge must be convinced that you will be in court when notified to be there. You may be asked several questions, such as how long you have lived in the area, whether you have family living in the area, whether you are working, whether you have been allowed out on bail before and appeared in court when required, and whether you have a criminal record. If the court finds your charge is not a serious crime, or that you will appear in court when required, or that you have a responsible person in the community who will guarantee your appearance in court, the judge has the option of releasing you without bail. This is called release on your own recognizance (ROR). If the Judge imposes bail in an amount you cannot afford, I can file a motion to reduce your bail. However, you do not have a right to multiple bond hearings unless there are significant changes in circumstances, so it is important that we provide a strong showing of your ties to the community and your willingness to appear at all scheduled court dates during the first bond hearing.
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FILING FORMAL CHARGES
Just because you have been arrested does not mean that you will actually be charged with a crime. After being arrested, the State Attorney reviews the Law Enforcement Officer’s narrative of the alleged incident that led to your arrest. Many times the State Attorney’s Office finds that the facts as described by the Law Enforcement Officer do not rise to the level of a crime, or they find that the offense charges by the Law Enforcement Officer are excessive and the State Attorney’s Office files lesser charges. This is a crucial time, because many times I can intervene with the State Attorney’s Office and persuade them that either formal charges are not necessary, or that a lesser charge would be more appropriate. The worst thing that could happen would be if the State Attorney’s Office filed the most severe charges possible for your facts. That puts us at a disadvantage in future negotiations.
It is important to note that the State Attorney’s office has the sole discretion to decide whether to file formal charges against you. Even if witnesses do not want to testify against you or they want to stop the case, the State Attorney may still press forward on the charges. The law of the State of Florida gives the State Attorney this type of discretion and they can subpoena these witnesses to come to court even if they should indicate that they do not want to. Nevertheless, the prosecutor must file formal charges within 180 days of your arrest. Otherwise, the State Attorney is forbidden from pursuing charges against you after the expiration of that period. This rule is intertwined with your right to a speedy trial as guaranteed by the United States Constitution.
Additionally, if you are in jail and cannot afford bail, the prosecutor has 30 days from the date you are arrested to file formal charges against you. If formal charges are not filed within 30 days, the court, on the 33rd day and with notice to the State of Florida, must order you automatically released on your own recognizance, unless the State files formal charges by that date. The State may petition the court for an extension of time to file formal charges if they can show good cause for doing so. The extension can be for no more than 40 days from the date of your arrest.
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ARRAIGNMENT
After your first appearance, if formal charges are filed, an arraignment will be scheduled. The arraignment is not a trial and not a time when evidence can be presented. At most arraignments your charges are read to you and you will be required to enter a plea at this time. If you have retained my services prior to this court date, I will enter a plea of not guilty on your behalf and waive your appearance. However, it is important, but not necessary, that you have retained my services before this time. If you have not retained an attorney you should a plea of not guilty and advise the judge that you are looking for an attorney. Your case will then be given a pretrial and trial date.
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DISCOVERY
After the filing of the charging document, a defendant may elect to participate in the discovery process provided by the Florida Rules of Criminal Procedure, including the taking of discovery depositions, by filing with the court and serving on the prosecuting attorney a “Notice of Discovery” which shall bind both the prosecution and defendant to all discovery procedures contained in the rules.
Upon demand to the prosecutor, the prosecutor shall within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defense a list of all witnesses that may have information relating to the case, all copies of written reports, and shall list items of evidence. The Defense is permitted to inspect, copy, test, and photograph the material within the state’s possession or control.
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COURT APPEARNCES
While he case is in the Discovery phase, the court will set periodic court dates to determine how the case is proceeding. You must appear in court for all your court hearings, unless advised differently by your attorney. Often a waiver of court appearance can be filed which would allow you to not appear in court for many of the hearings. If you do not show, or you have not filed a waiver of appearance, the judge may issue a warrant for your arrest and your right to a speedy trial may be lost. Your bond may also be revoked.
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TRIAL
If you enter a plea of not guilty at arraignment, you will have a trial unless the charges are dismissed or you change your plea prior to trial. In a jury trial, a judge presides over the courtroom proceedings, and six or more citizens from the community are chosen to hear the evidence presented against you. These citizens determine whether a crime has been committed and whether you are criminally responsible for that crime.
You and your attorney must decide whether you want a jury trial or a non-jury trial. The State Attorney must also agree to a non-jury trial. In a non-jury trial, only the judge decides whether a crime has been committed, and whether you are criminally responsible for that crime; in a non-jury trial there is no jury. A jury is used for most trials.
The trial consists of selecting a jury, which is the process called voice dire. n jury selection a panel of between twenty to thirty people is brought into the court room. Of this group of people, six people will be selected to sit as jurors in your trial. Each side is allowed to fully question the jury panel, for the purpose of revealing bias or prejudice. The state questions the panel first and the defense follows. Once questioning is complete, both sides are allowed some time to privately review their notes on the juror’s answers to questions, and determine who to exercise their strikes on. Once both sides have stated they accept six jurors, plus one or two alternates, the panel is sworn and the remaining jurors are excused.
After the jury is selected, each side is given an opportunity to tell the jury what they believe the evidence will show. The opening statement is not supposed to an argument, but rather an uninterrupted story of what the trial will show, through the evidence and testimony. Since the State has the burden of proving the charges, they address the jury first, and the defense follows. An opening statement can be anywhere from 5 minutes to an hour.
At the conclusion of opening statements the State begins to present its evidence. Evidence is primarily introduced through the calling of witnesses to testify. The State may call its witnesses in any order they determine. They may call all or just some of the people they have listed on the witness list.
Once their witness is on the stand, the state conducts a direct examination of the witness, meaning they ask non-leading questions that prompt the witness to tell their individual part of the overall story.
At the conclusion of the State’s direct examination, the defense can cross-examine the witness. Cross-examination is defendant’s opportunity to bring out all the counterpoints that the State did not bring out on direct examination, such bias, mistake, lack of knowledge, etc. Depending on the testimony the witness has given, the Defense may ask many questions, or in some cases, no questions. Determining what to ask on cross examination is a strategic decision that is planned long in advance.
Once the State has called all the witnesses it believes necessary to prove the legal elements of the crimes charged, they will rest their case. At this time, a recess is taken, and the Court allows the Defense to make a Motion for Judgment of Acquittal (JOA). A JOA asks the Court to find that the State has failed to make a sufficient showing to allow the specific charge to go to the jury. This motion is rarely granted, so the making of it is largely a formality, but it’s like the lottery, you can’t win if you don’t play.
We are not required to call witnesses, and the Court tells the jury this at several points in the trial. Many times our theory of the case is sufficiently brought out through cross examination, so we do not need to call witnesses in our case. However, when we do call witnesses on our behalf, including you, the same rules that applied to the State’s witness will apply to our witnesses. We examine our witnesses with non-leading questions, and the State then cross-examines our witnesses in an effort to bring out bias, mistake, lack of knowledge, etc. We may call all or just some of our witnesses, depending on how the testimony is coming out. We do not want to put on redundant witness, because where there is redundancy, there is always conflict of some sort.
The goal is to tell your story fully in a coherent, interesting, streamlined and credible manner, all the while minimizing the potential for conflict between our witnesses. A defendant has the absolute right to testify or remain silent and the Court will instruct the jury of this several times during the course of the case. The decision as to how to best defend your case is complex and should be discussed in detail prior to trial. Nevertheless, it is often a strategic decision that is made by the lawyer and client, as the trial unfolds. Some judges find a moment when the jury is out of the room, when it becomes appropriate, and ask the Client on the record what your decision is, and whether you agree with it. Generally one should not make a decision until the close of the State’s case.
Once the Defendant has rested, the State is permitted to put on witnesses to rebut a specific point about which the Defendant’s witness has testified. The same rules apply to them as all other witnesses. These witnesses must be on the witness list, so there are no surprises.
After all the evidence is presented, each side makes its closing arguments to the jury. Each side is allowed equal time for closing argument. Closing argument should pull all the evidence and testimony together, and explain to the jury why the charges are proved or not proved. The parties can use any evidence or exhibits that were used in the course of the trial, as well as special exhibits designed to highlight our key points. This can take as long as an hour, or as little as 15 minutes in short cases.
At the conclusion of closing arguments, the judge then tells the jury the laws and rules to be applied during the jury’s deliberation. The jury then goes into a jury room to talk about the case until they reach a unanimous verdict of either guilty or not guilty. Depending on the severity of the charges you face, a jury can also find you guilty of a lesser crime. If the jury is unable to reach a unanimous verdict, then a mistrial is announced and the case will be reset for trial at a later date.
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SENTENCING
If the jury finds you not guilty, then a sentencing hearing does not occur. You are free to leave and the court no longer has jurisdiction over you. However, a sentencing hearing will be held if you enter a plea or are found guilty by a jury. At the hearing you will have an opportunity to speak with the judge. The judge will also give your lawyer and any other interested persons a chance to speak on your behalf. After hearing from all of the parties and witnesses, the judge will impose a legal sentence that he feels is appropriate based on the facts and circumstances surrounding the case.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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