James R. Balmforth: Criminal Defense Lawyer Provo Utah

From the point of arrest through the rest of the criminal justice process, discretion plays a large role in the decision-making process. The arrest is the initial contact between the accuser (the government) and the accused. Most crimes, however, do not end in an arrest. The reasons for this are numerous. Most often, crimes do not take place in the presence of police officers, so police must rely on private citizens to report criminal activity. The more serious the crime, the more likely it is to be reported. In other instances, even when knowledge of the crime does exist, suspects cannot be identified or apprehended. At other times, the prosecutor will make a conscious decision not to pursue a case.

The law governing arrests is regulated through the Fourth Amendment, which prohibits unreasonable searches and seizures. Arrests can be made through the use of a warrant. Warrants may be issued after a person swears out a formal complaint, which claims facts charging another person with a crime. The facts in the complaint are then reviewed by an independent magistrate to determine if there is probable cause to believe that the accused did indeed commit the action. Despite the warrant provision of the Fourth Amendment, 95 percent of all arrests are made without a warrant. The most common form of arrest is a summary arrest in which officers independently make the decision to arrest a suspect based on information they discovered or on information given by another person such as the victim of the crime. Even in summary arrests, due process requires that the standard for arrest must be probable cause that the accused did indeed commit the crime.

Oftentimes, even when police officers are aware of a crime and can identify a suspect, they will still not make an arrest. Each police officer has the discretion to make such decisions. There are four main categories of cases that scholars have identified in which officers are often hesitant to make an arrest: (1) minor offenses, where the officer may believe alternatives to an arrest will create a better deterrent to future violations; (2) cases where the victim will not press charges; (3) situations in which victims were also involved in misconduct and thereby helped to bring on their own misfortunes; and (4) when the criminal behavior is thought to be consistent with that community’s mores.

Initial Appearance

The initial appearance is the first time that a criminal suspect enters the court system. In some jurisdictions, such as Iowa, the initial appearance is referred to as an arraignment. The initial appearance is supposed to be held without delay. Historically, in most states, that has meant within twenty-four hours of arrest. In 1991, however, the Supreme Court ruled that police may hold a person up to forty-eight hours prior to the initial appearance and judicial review of the arrest.

At the initial appearance, if the person was arrested without a warrant, the police must convince the judge or magistrate that there was probable cause for the arrest. In all cases, suspects are brought before a judge or magistrate and informed of the charges against them. Suspects are also informed of their constitutional rights and guarantees. Even if they have already been informed of their right to remain silent and their right to an attorney, the judge will again remind them. If the accused is indigent and wishes to have an attorney appointed by the court, counsel may be appointed at this time.

The judge will also determine if the accused may be released on bail and, if so, what the amount of bail will be. The purpose of bail is to ensure that the defendant will show up for all court appearances rather than fleeing the jurisdiction. Bail is a guarantee in either money or property that the defendant will make all court appearances. If the defendant makes all appearances, bail is returned. If not, it is forfeited. Judges have wide discretion in the setting of bail. In deciding what amount to set as bail, two factors weigh the most heavily: the seriousness of the crime and the prior record of the defendant. A more serious charge usually results in a higher bail being set, as does a more serious prior record. 7 When judges believe that a person will not show up at future judicial proceedings, they will often set such a high bail that the defendant will not be able to raise enough money for a bond. If bail cannot be raised, or is denied, then the defendant will have to await trial in jail. Bail is not a constitutional right in state prosecutions and may be denied altogether. It’s therefore important that you are represented by an experienced Provo Utah criminal defense lawyer.

Decision to Prosecute

After the initial appearance, the prosecutor controls whether there will be further court appearances by deciding whether to file formal charges and prosecute. The decision to charge is a discretionary one that is left up to the prosecutor in the jurisdiction in which the crime was committed. Prosecutors are likely to base their decision on three criteria: evidential, pragmatic, and organizational.

The evidential criteria rank high in the charging decision. When considering evidential criteria prosecutors are likely to ask themselves whether a prosecution will result in a conviction. The higher the chances for conviction, the more likely a prosecution. In cases where the evidence is flimsy and leaves a good chance of acquittal, prosecutors will be wary of charging the individual. Acquittals weaken people’s confidence in the prosecutor and the prosecutor’s office. Acquittals also weaken the position of the prosecutor in plea-bargaining arrangements.

The pragmatic criteria that a prosecutor considers in the decision to charge are often founded on a concern that justice be individualized in each case. To this end, prosecutors will often try to determine whether the individual involved deserves the full severity of the law or to be given some degree of mercy. In making this decision, prosecutors can decide not to file any charges. A prosecutor may look at the personal characteristics of the offender and decide that justice would be better served by filing a misdemeanor charge that would be less stigmatizing than a felony charge, which may harden the individual involved.

In considering organizational criteria, prosecutors focus on the needs of their own office before making the decision to charge an individual with a crime. One of the main concerns of the organizational criteria is to ensure that the prosecutor’s office maintains good working relationships with the police and judges. Prosecutors may be hesitant to bring charges in cases where a particular judge has shown, through sentencing decisions, that he or she does not consider a particular type of criminal activity to be serious. Prosecutors also look at their own workloads when considering organizational criteria in the charging decision. To advance a good working relationship, prosecutors may bring charges in cases that have weak evidence to ensure future cooperation with the police. In a similar manner, prosecutors may refuse to bring charges in some cases to prompt police to do a better job of criminal investigation.

Preliminary Hearing

If the prosecutor does file charges, then in most states the next step in the criminal justice process is the preliminary hearing. Not all states use preliminary hearings. The purpose of the preliminary hearing is to protect defendants from unwarranted prosecution and prolonged incarceration. The preliminary hearing is the first point in the criminal justice process in which our adversarial system of justice is put to the test. At the preliminary hearing, the prosecution must convince a neutral judge through the submission of evidence—which can be challenged by the defense—that there is probable cause to believe that the defendant did indeed commit the crime and should be held over for trial. Probable cause can be shown by proving that there was a crime that was committed and that the defendant was likely to be the perpetrator. If the judge does not believe that probable cause has been shown connecting the defendant to the crime, the defendant will be released and the charges will be dropped. The reality of the situation is that in few felony cases are charges dismissed or reduced to a misdemeanor for lack of probable cause after the preliminary hearing. Despite the low percentage of cases where defendants have charges dropped as a result of preliminary hearings, these hearings can be beneficial to defendants by informing them about the prosecution’s evidence.

Grand Jury

In federal criminal prosecutions all cases must be presented to the grand jury for investigation according to the Fifth Amendment. The Supreme Court has ruled that the Fifth Amendment grand jury requirement is not mandatory in state criminal prosecutions. As a result, and because it is repetitious of the work of the preliminary hearing, only about half of the states use grand juries as a means of criminal indictment. Grand juries are designed to stop individuals from harassing prosecutions when there is no legal basis for the charges that are filed. They are also meant to ensure that there is sufficient evidence for the charges that are filed against an individual accused of a crime. This is because grand juries are made up of citizens who must be convinced that there is probable cause that a suspect committed a crime before the government is allowed to indict.

Grand juries are led by the prosecutor in that jurisdiction. They secretly investigate criminal activity that is brought to their attention for the term of their impanelment. Grand juries can consider evidence that legally would not be admissible at trial. Typically, neither suspects nor their attorneys are allowed to observe the proceedings of the grand jury. Suspects are not allowed to contest the evidence presented by the prosecutor, or to present their own evidence. After examining the evidence, the grand jury takes a vote to determine whether probable cause exists to indict a suspect on the charges presented to it by the prosecutor. If a majority of the jurors vote for indictment, called a true bill, an indictment will be issued listing the formal charges brought against the defendant and if an arrest has not previously been made, one will be made. In reality, it is rare that a no true bill is returned by grand juries, since their investigations are under the firm guidance and control of the prosecutor.

If a grand jury is used and a true bill returned, the indictment serves as the formal charging instrument. In states that do not use grand juries, the prosecutor files a bill of information explaining to the court that probable cause has been found to hold over the defendant on the precise charges against him or her. Whichever system of charging is used, the charging document must include the name of the defendant, a brief description of the crime and the circumstances surrounding its commission, and a listing of the specific statutes that were allegedly violated. The Sixth Amendment requires that defendants be informed of the charges against them, so a copy will be given to the defendants. This is normally done at the arraignment.

Arraignment

The arraignment happens after either the preliminary hearing or the grand jury indictment. It takes place before the judge in the court where the trial will be held. The arraignment has several functions. The first is to inform defendants of the specific charges of which they are accused. A second is to ensure that defendants are apprised of their rights and have an attorney. A third function of the arraignment is to allow defendants to enter a plea. There are a number of pleas that can be entered, all with differing results. Both a plea of guilty and nolo contendere, no contest, will result in no trial being held; the criminal justice process then moves on to the sentencing phase. The nolo contendere plea has the same effect as a guilty plea, but cannot be used as evidence of a criminal conviction should the defendant later be sued in a civil trial. Defendants who plead not guilty or not guilty by reason of insanity will go to trial so the issues of the case may be resolved. The judge will then set a trial date and, if the case is serious, inform defendants of their right to a jury trial if so desired.

Do not plead nolo contendere or guilty without consulting an experienced Provo Utah criminal defense lawyer.