WHAT HAPPENS IN A CRIMINAL CASE?
Nick Thornton, Fremstad Law Firm
Being charged with a crime is a scary and stressful experience, not only for the accused, but also for the person’s family and friends. Criminal defense lawyers, especially very good ones, not only represent clients in court but also try to reduce that fear and stress as much as possible. Knowing that my clients and their families are often scared and unfamiliar with the criminal justice process, my first meetings with a client are usually designed to gather information about the defendant and the case and to address two questions I know my clients are likely to ask: (1) How much trouble am I really in and (2) what happens next? I spend a lot of time addressing these issues because I think it makes the experience much less stressful.
Obviously the first question is incredibly fact-specific, and no general informational post like this can appropriately address that concern. However, as a general matter, it involves a discussion about the nature of the charge, the maximum and minimum penalties, collateral consequences, potential defenses or legal maneuvering, negotiated alternatives, the prosecutor’s recommendation, if known, and the likely outcomes at a motion hearing, trial, or sentencing. When a client understands what could happen and what is likely to happen given a particular situation, it puts the client in a better position to make informed decisions about the case.
In contrast, the second question is not all that fact-specific. The process is supposed to be uniform across the state, although there are some regional differences in procedure. This post outlines the general process set forth in the North Dakota Rules of Criminal Procedure.
A lot happens in the criminal justice system before a case ever gets to the courtroom. First, something has to have happened to involve the system. Specifically, there needs to be a suspected violation of the law. Someone needs to have done something or been suspected of doing something illegal. This could be possessing some form of contraband like drugs, beating someone up, stealing something, or the like. After that, the suspected violation needs to come to law enforcement’s attention. In other words, it needs to be either reported to the police or observed by the police. Without that report or that observation, the criminal justice process never gets started. If law enforcement become aware of a violation, they will investigate it. Sometimes this investigation takes a matter of minutes; sometimes it takes weeks or months. Investigations may include gathering physical evidence from a crime scene, making personal observations, taking photographs, taking witness statements, and searching a person or place for evidence of a crime. Some searches require warrants. Some searches are based on an exception to the search warrant requirement. Based on that investigation, the officers then decide whether there is enough evidence (probable cause) to arrest the person or seek an arrest warrant. In most cases, the police arrest the person without a warrant. The officers also prepare written reports that are then sent to the prosecutor’s office for review. Ultimately, the prosecutor reviews these reports and decides which charges to file. The prosecutor then drafts a charging document called a Complaint or Information, which is then filed with the Court.
The initial appearance is the defendant’s first time in court, and is supposed to happen within 48 hours of arrest. This is a very brief hearing, with most of them less than 5 minutes long. The purpose of the hearing is to inform the defendant of his legal rights, explain the charges, the maximum and minimum penalties, determine whether the person wants and is financially eligible for a lawyer called a public defender, set bail, and schedule further court proceedings. In some counties, the rights are read by way of video to all defendants at one time. In smaller counties, the judge will read the rights at the beginning of each hearing. Either the prosecutor or the judge then reads the charging document to the defendant and makes sure the defendant understands the nature of the charges against them. The court then explains the maximum and minimum penalties, and some collateral consequences. The judge then will discuss the defendant’s right to a public defender if the person financially qualifies for a lawyer at public expense.
The court will address bail and issue a pretrial release order at the initial appearance. The court’s pretrial release order outlines the conditions and posting of money that allows a person to be released from custody before trial. The purpose of bail is to ensure the accused person shows up on court and in some circumstances, to protect the public. Bail can be in the form of personal recognizance (a promise to show up), require the posting of cash with the court, or through the use of a bail bond obtained from a bail bondsman. The prosecutor will usually give a recommendation to the court about what bail should be set at. The prosecutor will also usually outline to the court any history of non-appearances (escapes, bail jumping, failures to appear, etc.) and the defendant’s criminal history. The judge usually lets the defendant respond to the bail recommendation with a recommendation of his own. Then, the judge will set bail based on those recommendations and argument. If the person remains in custody 48 hours after bail has been set, the defendant can request the court review bail in the hopes of the judge lowering the bail required for pretrial release.
In misdemeanor cases, this first appearance is also combined with the arraignment, which involves the court asking the defendant to plead guilty or not guilty to the charges. If the defendant pleads not guilty, the case is scheduled for further proceedings. If the defendant pleads guilty, the court usually holds a sentencing hearing right then and there.
Early on in the case, the defense lawyer will request discovery from the prosecuting attorney. The State is required to give the defense all of the evidence it has regarding the defendant, with a few very narrow exceptions. This process is constitutionally required to ensure the defendant receives a fair trial. Discovery information includes police reports, photographs, witness statements, any statements or admissions made by the defendant, video, audio, DNA evidence, expert reports, the defendant’s criminal history, the criminal history of any witnesses the prosecution intends to call as witnesses, and any information relevant to sentencing or mitigation in the State’s custody or control. Also, any exculpatory evidence that tends to negate guilt of the defendant is required to be disclosed. Essentially, the State has to give the defense everything it has in terms of evidence against the defendant. The right for the State to get discovery from the defense is very limited, but possible in some circumstances.
In a felony case, the defendant has the right to a preliminary hearing. There is no right to a preliminary hearing in a misdemeanor case. A preliminary hearing is a probable cause hearing. It is scheduled usually in the first six weeks of the case. The purpose of this hearing is to root out baseless prosecutions at an early stage. At this hearing, if the defendant chooses to have a contested preliminary hearing, the State must produce sufficient evidence to establish probable cause that a crime was committed and that the defendant likely committed it. Probable cause for this hearing is the same standard as probable cause for to arrest. Since the rules of evidence do not apply at this hearing, the State can rely on hearsay testimony and testimony that would otherwise be inadmissible at trial. Usually, the State will call one witness—usually the arresting police officer—to testify about everything in the case.
The preliminary hearing is often waived, in large part because the state of the law has rendered this hearing virtually worthless in most cases. Waiving the preliminary hearing does not mean the defendant agrees with the charges or that the defendant is guilty. It cannot be used against the defendant at trial. It just moves the case on to the arraignment where the defendant can plead guilty or not guilty. In my cases, I waive preliminary hearings in a significant portion of my felony cases. I choose to have contested preliminary hearings in five situations: (1) if my client is raising a very specific type of alibi defense—I like to call it the S.O.D.D.I. defense (“Some other dude did it!”), and I can prove my client was someplace else at the time of the crime; (2) if I think physical evidence was found illegally, I may choose to have a contested preliminary hearing to lock the officer into his story so I can use it at a later motion hearing; (3) if as a matter of personal preference, I choose to have a contested preliminary hearing; (4) I may choose to have a contested preliminary hearing to use it to obtain discovery or educate the prosecutor on facts he or she may not know of from just reading the report; and (5), if the client insists on a contested hearing. Even when I otherwise would have a contested preliminary hearing, I may also have to balance that with pretrial publicity or with other strategic or tactical decisions.
If the defendant waives the right to a preliminary hearing, the court moves on to the arraignment. If there is a contested hearing and the court finds probable cause, the matter is “bound over for trial,” which means the court moves on to the arraignment. If the court does not find probable cause, the case is dismissed, usually without prejudice (which means it can be recharged if the State learns of additional evidence).
The arraignment is very similar to the initial appearance. In misdemeanor cases, it is combined with the initial appearance. In felony cases, it usually happens right after a defendant waives his right to a preliminary hearing or if there is a contested preliminary hearing and the court binds the defendant over for trial, right after the preliminary hearing. This hearing is very brief, usually lasting only a minute or two. The purpose of the hearing is to ensure the defendant understands his rights, the charges against him, and the applicable maximum and minimum penalties. The one really important difference here, though, is that the judge will ask for the defendant’s plea of guilty or not guilty. If the defendant pleads guilty, the court will go through a plea exchange and a sentencing hearing, usually right then and there. If a not guilty plea is entered, the matter is continued for further proceedings.
Throughout the entire case, the attorneys usually engage in some form of plea negotiations. The lawyers discuss the facts of the case, the facts and outcomes of similar cases, the facts and circumstances surrounding the defendant, the defendant’s family, and the victim, and charging or sentencing alternatives. The prosecutor will usually give the defense an initial plea offer, which can be accepted, rejected, or the defense can counteroffer, proposing a new plea agreement or recommendation. Discussions might go on for months on what the appropriate charge should be and what the appropriate sentence should be. The prosecutor’s goal in plea negotiations is resolving the case short of trial with an appropriate conviction and punishment. The defense attorney’s goal in negotiations is to avoid or mitigate the charges or punishment for the defendant. Sometimes, the lawyers reach an agreement. In that case, the lawyers will schedule a plea hearing to resolve the matter. If there is no agreement reached, the parties have a good idea of where the other side stands in terms of a sentencing recommendation. With that information, the defendant (and defendant alone) gets to choose whether to go to trial or to plead guilty.
Motions may or may not be filed, depending on the facts and circumstances of a particular case. Common motions are motions to suppress evidence if the evidence was obtained in violation of the defendant’s rights. If a motion is filed, the opposing party is given an opportunity to respond to the motion in writing before the court considers the motion. The parties can also request an evidentiary hearing and oral argument on the motion. At an evidentiary hearing, the moving party puts on witnesses to testify about the facts relating to the motion. The opposing side can ask the witnesses questions and present its own witnesses on the motion, if that is appropriate. The judge oversees this hearing, and the rules of evidence apply. At the conclusion of the hearing, the court will ask for oral argument from the lawyers about why a particular motion should be granted or denied. The judge will either take the motion under advisement and issue a written opinion or rule from the bench by granting or denying the motion. Most suppression motions are taken under advisement, and the judge’s written opinion is issued a few weeks later.
The dispositional conference is basically a scheduling conference. Some counties do this in writing or at the preliminary hearing; other counties have a separate dispositional conference hearing. The dispositional conference is usually held 60-90 days after the initial appearance. Here, the defense basically tells the court what to expect for the disposition of the case and asks the court to schedule it accordingly.
There are two basic choices at the dispositional conference, with a few variations. Is the case going to trial or is it going to be resolved by a plea? If the case is going to be tried, the question is then whether the case will be tried as a jury trial or as a bench trial where the judge serves as the jury too. If there is going to be a change of plea, the question is then when will that happen: right there or at a later time. Finally, if the parties are not prepared to move forward, the court may grant a continuance.
In summary, the five specific options for the defendant at a dispositional conference are: (1) jury trial; (2) bench trial; (3) continuance; (4) change of plea now; or (5) change of plea later. Unless the case is disposed of by plea (or dismissal) at the dispositional conference, it is just a scheduling conference to schedule later proceedings.
The court may or may not have a pretrial hearing before the trial. In some counties, a pretrial hearing happens weeks before trial. In other counties, there is a pretrial hearing scheduled the day before or the morning of trial. At the pretrial hearing, the court usually asks the parties to address certain procedural matters like the number of jurors to call for the panel, ask the attorneys to agree to certain foundational matters to shorten the length of trial or narrow the scope of issues to be tried, ask the attorneys to make certain objections, and to discuss jury instructions. The court may also require the parties to pre-mark any exhibits, papers, or documents that will be presented by either party at trial so those items can be referred to by their pre-marked label. Finally, lawyers may argue certain legal issues at pretrial hearings such as the exclusion of certain evidence or testimony. This allows the judge to be aware of legal issues likely to pop up during trial.
Trials in criminal cases are to determine factual guilt or innocence to the charges. Since the accused person is presumed innocent, the State has to prove the defendant is guilty beyond a reasonable doubt by proving each and every element of the criminal offense or offenses charged. The prosecutor presents evidence by way of witnesses testifying in court, along with any documents, photographs, reports, or other physical items (for example, the bloody glove in OJ Simpson’s case). The defendant also gets an opportunity to present evidence if he wants. After all of the evidence is presented, the factfinder decides whether the defendant is guilty or not guilty.
There are two types of trial, a jury trial and a bench trial (also known as a court trial). The big difference between a jury trial and a bench trial is who decides what the facts are. That is, who decides whether a defendant is guilty or not guilty. The right to a jury trial is enshrined in our Constitution. The idea behind it was to share power between the government and the citizens. When it comes to a bench trial, the defendant has to request it and specifically waive the right to a jury trial in writing or in open court, the prosecutor has to consent to a bench trial, and the judge has to agree to hear the matter as a bench trial. In other words, even if the defendant wants a jury trial, the prosecutor and judge must agree before a bench trial is held instead of a jury trial.
In a jury trial, a jury of either 12 persons (in all felony cases and some misdemeanor cases when a jury of 12 is timely demanded) or of 6 persons (in all class B misdemeanor cases and most class A misdemeanor cases) decides what the facts are and if those facts match with the elements of the crime. The judge in a jury trial has a more limited role, just ruling on legal issues and making sure the evidence is presented in the way allowed by law. In a bench trial, on the other hand, the parties are giving the jury’s power to decide the facts to the judge. The judge then effectively serves as both the judge and the jury, deciding what the facts are and what the law is.
The first stage of a jury trial is picking the jury. This process is called voir dire. It is a process of elimination. The court calls in a bunch of potential jurors. The lawyers ask the jurors questions. Based on the potential jurors’ answers, the lawyers try to strike jurors that would be favorable to the opposing party. The idea is that the jurors that are left at the end of the process are the ones who should be most fair to both sides.
After jury selection, the prosecution will give an opening statement. The opening statement is a preview of what evidence the prosecutor expects to present. After the prosecutor’s opening statement, the defense attorney has an opportunity to present an opening statement.
Once the opening statements are out of the way, the State will call its witnesses in what is called the State’s case-in-chief. The purpose of calling witnesses is to ask them questions and have them testify about their answers. Witnesses might also be used to introduce documents, demonstrative evidence, video or audio recordings, photographs, or other evidence allowed to be presented to the jury. After the prosecutor asks all of the questions of a witness, the defense has a right to cross-examine the witness. Cross-examination means the defense lawyer gets to ask questions of the witness to challenge the person’s credibility or observations. Throughout the testimony, the lawyers might argue about objections to certain questions or evidence. This means one lawyer is asking the judge to decide whether some piece of evidence should be allowed to be presented to the factfinder. If an objection is sustained, that means the evidence or testimony cannot be considered, at least in the form in which it was presented. If the objection is overruled, that means the evidence can be considered by the factfinder. After all of the State’s witnesses are called, all of the defense cross-examination has been completed, and the State believes it has proven its case, the State rests its case.
After the State has rested, the defense usually makes a motion for a judgment of acquittal. This motion is asking the court to find the defendant not guilty without letting the jury decide the matter because the State failed to sufficiently prove up its case. This motion is usually denied.
After the motion, the defense has the opportunity to put on evidence. Unlike the State that has to put on evidence, there is no requirement that the defendant call any witnesses or present any evidence. The defendant has an absolute right to testify if he wants to, but he also has the right to remain silent. If the defense calls any witnesses in the defense case-in-chief, the prosecutor has the right to cross-examine the defense witnesses. After the defense has called all of the witnesses, if any, the defense then rests.
If the defense calls any witnesses, the State can reopen its case and call additional witnesses in Rebuttal. A rebuttal is limited to issues raised in the defense case-in-chief. The defense has the right to cross-examine any witness called in rebuttal. After the State has called all of the witnesses it intends to call in rebuttal, the State re-rests. This ends the evidentiary stage of the trial. No new evidence can be presented after that.
After all of the evidence is received, the judge gives the jury instructions on the law. The jury instructions outline the obligations of the jury, the elements of the offense, and information about certain defenses. After jury instructions are read, the lawyers get a chance to present a closing argument. Closing argument is the lawyers’ last chance to convince the jury that the evidence shows the defendant is either guilty or not guilty. The prosecutor goes first, giving the State’s closing argument. The defense then gets an opportunity to explain why the defendant is not guilty. Finally, the State gets to give a rebuttal argument, which responds to the defendant’s closing argument.
Finally, after all of the evidence has been received, the lawyers have made their arguments for and against guilt, and the jury has been instructed on the law, the jury is then sent to deliberate in a jury room. Jury deliberations are secret. The jurors talk about the case and collectively decide whether a defendant is guilty or not guilty. All of the jurors must agree. Once a decision is made, the jury returns a verdict. The verdict is then read in open court. Most of the time, each jury member will be polled, or asked if they agree with the verdict as it was read.
After the verdict is returned and the jury is polled, the judge thanks the jury and excuses them. Now, if the verdict was not guilty, the judge informs the defendant that he is free to go, any bail posted will be released and returned, and the defense attorney will prepare a Judgment of Acquittal. If the verdict was guilty, the judge will either move directly to sentencing or will schedule a sentencing hearing at a later time. If a sentencing hearing is set for a later date, the judge often readdresses bail. In some cases, the defendant will be taken into custody at that time and be held without bail.
A plea hearing is where the defendant has informed the court that he intends to plead guilty. This only happens if the defendant says he wants to plead guilty. If he does not want to plead guilty, the case continues to trial. At a plea hearing, the judge advise the defendant that he has the right to plead not guilty, the right to a jury trial, the right to an attorney, the right to confront and cross-examine witnesses (ask the State’s witnesses questions), the right to remain silent, the right to testify on his own behalf, and the right to force witnesses to appear and testify through the court’s subpoena power, and make sure that the defendant knows he is waiving these rights if he pleads guilty. The court will review the nature of the charge that the defendant is pleading guilty to, explain any maximum and minimum penalties, and explain the court has the authority to order restitution. After explaining these rights, the court will make sure that the plea is freely and voluntarily made, meaning that no one has forced or threatened the defendant or made any promises other than the plea agreement or sentencing recommendations discussed in court. Finally, the court will ask for a factual basis to support the plea, which is usually a short statement of facts given by the prosecutor or defense attorney sufficient to support the plea of guilty. Once the plea is accepted, the case moves on to sentencing.
Sentencing hearings are the punishment phase of a criminal case. They can happen in combination with the entry of a guilty plea or trial, or as a separate, stand-alone hearing at a later date. In most cases, sentencing happens in combination with the plea or trial. Stand-alone hearings are usually scheduled when the court orders a presentence investigation report (“PSI”). A PSI is an investigation conducted by the probation office into the background of the defendant in order to give the judge more information about the case before sentencing. A PSI involves an interview with the defendant about certain demographic information, the defendant’s version of events, information about the defendant’s friends, family, school, work, and educational history. It may also include medical or psychological records, or risk assessments designed to help the judge determine whether the person is likely to commit more crime in the future. A sentencing hearing happens only after there has been an adjudication of guilt, meaning either the jury found a person guilty of an offense or the person pleaded guilty.
At a sentencing hearing, the judge will ask whether there is a plea agreement in place or if there will be sentencing recommendations made to the court. If there is a plea agreement in place, the court will ask for the plea agreement and then decide whether to accept or reject the agreement. If the agreement is accepted, the court will impose the agreed upon sentence. If the agreement is rejected, the defendant is allowed to withdraw his guilty plea and have a trial or to present a different plea agreement to the court at a later time. On the other hand, if there are just open sentencing recommendations, the court is free to impose whatever sentence the judge finds appropriate under the circumstances. The prosecutor will be asked to provide the judge with the prosecutor’s recommendation. Then, the judge will ask for the defense attorney’s recommendation.
In addition to the recommendations from the prosecutor and defense attorney, and perhaps the probation office if a PSI is ordered, the court may receive testimony or a written statement from the victim, called a victim impact statement. The court will also allow the defendant to speak at sentencing. This right is called the right of allocution. Some defendants say nothing, some say they are sorry, and some give a statement about why the crime was committed or why the court should impose a particular sentence. The court is then free to decide whether to impose the prosecutor’s recommendation, the defense attorney’s recommendation, or something else. The judge’s decision might be more or less harsh or severe than what was argued by the attorneys. If the defendant does not like the judge’s decision, there is very little that can be done about it, so long as the sentence is within the minimum and maximum penalties.
After the sentence is pronounced in court, the judge will sign a written judgment or order explaining the terms of the punishment. The punishment might include jail, probation, fines, treatment, or other appropriate conditions.
After a trial, it may be occasionally appropriate to file post-trial motions. These motions are incredibly fact-specific, and are only appropriate under limited circumstances. Common post-trial motions include motions for a judgment of acquittal (this can be brought before or after the jury’s verdict is issued), motions for a new trial, motions to arrest judgment, motions to correct or reduce a sentence, or motions to correct a clerical error in a judgment or order.
After a final judgment or order is entered, a defendant has the right to appeal the case. To start an appeal, a notice of appeal must be filed with the Clerk of the North Dakota Supreme Court within 30 days from the docketing of the judgment or final order. If the notice of appeal is filed after that date, the Supreme Court cannot review the case. An appeal is not a new trial; it is a review of the evidence and matters in the court record presented at the trial court level. No new evidence can be submitted at this stage of the proceedings.
The vast majority of cases are upheld on appeal based on the standard of review. For legal issues, the Supreme Court reviews those decisions without regard to the trial court’s decision. The Supreme Court reviews factual determinations under the clearly erroneous standard, which means the Supreme Court will not change a trial court’s determination unless it was clearly erroneous. For discretionary matters, the Supreme Court reviews the trial court’s decision for abuses of discretion. From the Supreme Court’s perspective, judges rarely abuse their discretion, and factual determinations are rarely clearly erroneous.
At the same time as the notice of appeal, the person appealing, now called the Appellant, must request the transcripts necessary for the Supreme Court to know what happened at the trial court level. A transcript is a written record of what was said in court. Unless an extension of time is granted, the court reporter prepares the transcripts within 50 days of the request for the transcript. After that, the Appellant has 40 days to prepare an Appellant’s Brief, which is a legal document filed with the Court explaining what went wrong at the trial level and why the Supreme Court should rule in the Appellant’s favor. The Appellant is also required to prepare an Appendix, which contains key documents filed with the trial court. Once the Appellant’s Brief and Appendix have been filed and served on the State (now called the Appellee), the State will have 30 days to file its Appellee’s Brief. This brief responds to the issues raised in the Appellant’s Brief, and generally contains arguments why the trial court’s decision should be upheld. After the Appellee’s Brief is filed, the Appellant can choose to file an Appellant’s Reply Brief, which is a shorter brief responding to the arguments raised in the Appellee’s Brief.
After all of the briefing has been done, the Supreme Court will schedule oral arguments, where the lawyers will present their arguments to the Supreme Court and answer any of the Supreme Court Justices’ questions. The Supreme Court never rules from the bench. They issue a written decision at a later time, usually within 40 days if they summarily affirm the trial court’s decision, or 70-90 days if the Supreme Court writes a full opinion. These are not hard and fast timelines: some cases are decided faster or slower than these timelines, depending on the complexity of the case.
After the Supreme Court issues its decision, it will file its Judgment and Mandate, which is a document telling the trial court that its decision is final. If the Supreme Court upholds the trial court’s ruling, the matter is over unless there is an appeal to the United States Supreme Court. If the Supreme Court reverses the trial court’s decision, a copy of the judgment, the Court’s written opinion, and any instructions for the trial court are sent for the trial court to fix whatever was wrong with the original proceeding.
Instead of or as a supplement to a direct appeal, a person can also seek post-conviction relief. Post-conviction relief is an indirect attack on a criminal judgment or final order. As a general matter, post-conviction relief petitions must be filed within 2 years of the judgment or order becoming final.
Post-conviction relief provides a convicted defendant with an opportunity to challenge the conviction for a number of reasons. Those reasons include: (1) the conviction was obtained in violation of the law, (2) that the law was unconstitutional or the conduct alleged to be criminal was constitutionally protected, (3) that the trial court did not have jurisdiction, (4) that the sentence was illegal, (5) that newly discovered evidence requires a new trial, (6) that the law has changed so much that it should apply retroactively to the defendant, or (7) the sentence has expired and the person’s liberty is still being restrained.
The most common reason for filing post-conviction relief petitions is a claim of receiving ineffective assistance of counsel. Ineffective assistance of counsel claims are very difficult to prove. The burden is on the defendant to show that his lawyer’s performance fell below an objective standard of reasonableness and that the lawyer’s defective performance prejudiced him. That means not only does the defendant bear the burden to show his lawyer was incompetent, he has to show that the result would have been different if his lawyer’s performance was reasonable. This is very difficult to do, which is why most ineffective assistance claims fail.
Attorneys at the Fremstad Law Firm have handled thousands of criminal cases from start to finish in the State of North Dakota, from murder to DUI to driving while under suspension cases. If you or a loved one has been charged with a crime or been convicted of a crime and is looking to challenge the conviction, it is absolutely essential that you consider hiring an experienced criminal defense lawyer as soon as possible.
If you have specific legal needs, please call me, Nick Thornton, at 701-478-7620 or send me an email at firstname.lastname@example.org.
© 2020 Fremstad Law