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The Stages of a Criminal Case in Georgia

The Stages of a Criminal Case in Georgia

September, 2017

 

            Being charged with a crime can be a frightening and confusing experience.  If you've ever been charged with a crime, or even a minor traffic violation, you’ve probably had to make at least one court appearance.  So… what is an arraignment?  What is a preliminary hearing?  What is a calendar call?  What are your rights at each of these stages?  Unless you work in the legal profession, you may not know what happens at each of these appearances, or what they require of you.  This article explains each of these different types of court appearances, and provides some insight regarding the other stages of a criminal case in Georgia.  It’s our firm’s way of giving you a brief “roadmap” of the criminal process.

 

ARREST/CITATION 

            Before a criminal case even begins, there must be conduct or an incident that leads to the filing of charges.  If you break a law or are alleged to have broken a law, the first stage is that you will either be given a citation (or copy of charges) or arrested, usually depending on the severity of the crime.  The police will file a report summarizing the facts which led them to arrest you or give you the citation.  If you are arrested, you will be read your Miranda rights and taken to jail or to the police station and “booked” or entered into the system.  The police will probably take your photograph and your fingerprints for their records.  Customarily, you will be allowed to make one phone call once you have been processed.  Before you are released you will generally have to make an initial appearance before a judge.

 

INITIAL APPEARANCE 

            Within 48 hours (if you were arrested without a warrant) or 72 hours (if you were arrested with a warrant) of your arrest, you will make your initial appearance.  Initial appearances, also known as first appearances, often take place in a courtroom inside the jail.  At an initial appearance, the magistrate judge will read the charges against you.  The judge will also ask whether you have an attorney and will appoint one if you cannot afford one.  At this point, the judge will make a decision about whether to grant bail and what the amount will be if it's granted.  Keep in mind that the magistrate judge does not have the authority to grant bail in every case.  In Georgia, the following types of charges are not bailable by a magistrate judge and must be heard later on by a superior court judge:

1.      Treason

2.      Murder

3.      Rape

4.      Aggravated Sodomy

5.      Armed Robbery and Home Invasion in the First Degree

6.      Hijacking a Motor Vehicle or Aircraft

7.      Aggravated Child Molestation

8.      Aggravated Sexual Battery

9.      Manufacture or Sale of a Schedule I or Schedule II Controlled Substance (*In Georgia, this includes marijuana)

10.  Aggravated Stalking

11.  Gang Activity

12.  Terrorism

 

          If the judge has authority to set bail in your case, there are four statutory factors he/she will consider in determining whether to set bail and if so, in what amount.  These factors are as follows:

 

1.      You must pose no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

2.      You must pose no significant threat or danger to any person, to the community, or to any property in the community;

3.      You must pose no significant risk of committing any felony pending trial; and

4.      You must pose no significant threat of intimidating witnesses or otherwise obstructing the administration of justice.

 

            Thus, if you've been convicted of a serious violent felony in the past and are charged with another one now, or if you have previously failed to appear in another court, the judge may conclude that you do not qualify for bail, based on the statutory factors outlined above.  However, you may be eligible for reconsideration of bail at a later stage of the criminal process.

 

PRELIMINARY HEARING

 

            A preliminary hearing, also referred to as a committal or probable cause hearing, is a pretrial hearing where a magistrate judge determines whether there is probable cause to believe that the defendant committed the alleged crime.  If the judge determines that it's more likely than not that a crime has been committed, and that you committed it, or were a party to the crime, your case will be bound over to a higher court for further proceedings.  Guilt or innocence is not determined at a preliminary hearing, but charges may be dismissed if probable cause is not established.  Also, defendants who have been released on bail are not entitled to a preliminary hearing in Georgia.

 

GRAND JURY INDICTMENT/ACCUSATION

            When a case is formally charged in Georgia, the accused will be presented with an indictment, an accusation, or an information.  These are names for the formal charging process and the accompanying documentation.  An indictment, or “true bill” is a charging document issued by a grand jury composed of 16-23 citizens of the county where the crime(s) occurred.  Informations and accusations are documents drawn by the prosecutor without the necessity of a grand jury process.  Grand jury proceedings are open only to the prosecutors, their witnesses and the grand jurors.  Defendants and their attorneys cannot attend, except in special cases, such as where law enforcement officers are named as defendants.  Georgia only requires grand jury indictments for capital crimes where the death sentence is a possible outcome.  Accusations and informations are used for lesser crimes.

 

 

ARRAIGNMENT

            An arraignment is where you appear before the trial court, are advised of the charges against you, and are asked to enter your plea to those charges.  You probably already know that you can plead guilty or not guilty.  You may also enter no plea, in which case the court will enter a plea of not guilty for you. After you are arraigned (if you plead not guilty), the court will give you a trial date.  Arraignments are not always mandatory.  In many jurisdictions, you can send a waiver of arraignment (which will include your plea) to the clerk and the prosecutor to save yourself an additional court appearance.

            What you may not know is that there are other options.  One example: you may also tender a plea of nolo contendere (no contest).  This is different from a plea of guilty because, while you are agreeing to accept punishment, you are not admitting guilt.  It is within the judge's discretion whether to accept a nolo plea.  The main benefit of pleading nolo contendere is that the plea cannot be used against you in a subsequent criminal or civil case.  Say you are involved in a car accident and the judge allows you to plead nolo to your traffic citation.  If you are then sued by the other driver, they will not be able to introduce your nolo plea as evidence against you in their personal injury lawsuit. 


DISCOVERY PHASE

            The discovery phase is where the prosecution and defense exchange evidence before trial.  With certain exceptions, such as an attorney’s “work poduct” the prosecution will share with the defense any evidence it intends to use at trial, including witnesses and their statements, tangible evidence (such as weapons, contraband, etc.), scientific evidence (e.g., DNA analysis, fingerprints, ballistics, etc.), police reports, and a copy of the indictment or accusation.  In turn, the defense may have to provide the prosecution with notice of an alibi, if applicable, or intention to assert an insanity defense, and information regarding any witnesses likely to testify at trial.  This information is generally exchanged well before trial, and allows each side to evaluate the strengths and weaknesses of their cases, to engage in plea negotiations and to prepare for trial.

 

MOTION HEARINGS

            Motions are legal documents submitted by an attorney or a defendant to the court.  They can be used to dismiss charges, compel discovery, exclude illegally obtained or prejudicial evidence from trial, reset a court date, apply for or reduce the amount of bail, and a number of other things.  If you or your attorney files motions over the course of your criminal case, you may be given a hearing date where you will be allowed to present your argument in support of those motions.  This hearing is called a motion hearing.  Generally, motion hearings are not mandatory and can be waived if you feel that the submitted motions speak for themselves.  The judge may consider your motions even without a formal motion hearing.

 

PLEA AGREEMENTS 

            The vast majority of criminal cases never go to trial. This is true for a variety of reasons.  Sometimes, prosecutors will be willing to dismiss charges if they believe that the defendant is innocent, or if they have insufficient evidence to obtain a conviction.  However, most of the time the defendant, their attorney, and the prosecutor will engage in “plea bargaining” in an attempt to come to an agreement about the appropriate punishment for the crime(s) committed.  The prosecutor will make an initial offer and the defense attorney will usually make a counteroffer.  When the attorneys reach terms they both find agreeable, the defense attorney will present that offer to the defendant.  If the defendant agrees to a plea, a plea date will be set, the defendant will attend, and the judge will often approve the recommendation.  If the defendant lives out of state and the charges are not serious, a “plea in absentia” may allow the defendant to enter the plea without attending the hearing. Keep in mind, the defendant has the final say in accepting or rejecting a plea recommendation.  The court then decides whether it is willing to adhere to the accepted plea deal.

           

TRIAL 

            The trial is the most complex stage of a criminal case.  There are two types of trials:

1)      Jury Trials – In Georgia, as in most places in the United States, you have the right to a jury trial for all felony and misdemeanor charges.  The right to a trial by jury attaches to any individual charged with a crime for which the maximum sentence is longer than six months.  You must request (demand) a trial by jury in order to receive one.  This is generally done either at arraignment or by written motion.  Georgia is peculiar in that prosecutors also have the right to demand a trial by jury.  If either party demands a jury trial in an appropriate case, it will be granted. 

    There are pros and cons to having a jury trial.  Juries are generally not as familiar with the law as a judge.  Rather, juries often to decide cases based on emotion.  Therefore, if you have clearly broken the law, but have an emotionally compelling reason, a jury trial may be better for you.  In a jury trial, the jury only returns the verdict of guilty or not guilty; the judge will generally determine the sentence after the return of a verdict.

2)      Bench Trials – A trial held without a jury is called a bench trial.  This kind of trial is presided over and ruled on by the judge.  The judge will hear the case and then make a decision as to whether you are guilty or not guilty.  Bench trials are useful if the law is on your side, but you believe a jury may not be.  But familiarity with your judge is a crucial factor in opting to try a case without a jury.  Consult with your attorney about whether it makes sense for you to request a jury trial or a bench trial.

 

            Once it's been decided whether you're going to have a jury trial, you'll be given a court date.  On that day, show up a bit early in appropriate attire.  You don't want to make a bad impression on the judge or jury by wearing a tank top and flip flops, or a tee shirt with marijuana leaves.  Another obvious, but important thing to know is that not all judges are the same.  It's important to know your judge's preferences, their courtroom procedures, and their history.  This is an area where a good, experienced attorney can be extremely helpful.

 

            There are multiple stages of the trial.  If you haven't been around a courtroom, or aren't an avid watcher of Law and Order, you may need a quick summary of those different stages.  Before the trial even begins, you and your attorney will be asked to attend a calendar call, which is a brief appearance in court where attorneys announce whether or not they are ready for trial.  If they are, the judge will likely set a specific date for trial.

 

1. VOIR DIRE – Voir dire is the very first stage of an actual trial.  During voir dire (commonly known as jury selection), the defense attorney and the prosecutor will take turns questioning potential jurors and eliminating or “striking” those they don't want on the trial jury.  There are two different ways to have a potential juror removed from the jury pool.  First, lawyers can challenge as many potential jurors as they want if there is a valid factual or legal reason. This is called a “strike for cause” and is used to eliminate potential jurors who are disqualified for legal reasons (e.g., POST certified police officers), have disabilities that would prevent them from serving (e.g., language or hearing issues), or would not be able to render a fair or impartial verdict.  A common example is a potential juror in a murder case who would refuse to give the death sentence under any circumstance.  The second way to remove a potential juror is called a “peremptory challenge.” Peremptory challenges can be made without cause, but may not be used in a prejudicial fashion, for example to exclude a juror based on race or gender.  There are two important distinctions between juries in State Courts, which handle misdemeanors, and those in Superior Courts, which primarily handle felonies.

 

                                                STATE COURT                                                        SUPERIOR COURT

 

JURY SIZE                                         6                                                                                12

PEREMPTORY                                  3                                                                                  9

CHALLENGES (per side)

 

2. OPENING STATEMENTS – Opening statements are the first opportunity for the prosecutor and defense attorney to outline the evidence they expect to present and to give brief summaries of the case from their perspectives.  The prosecutor generally goes first and the defense follows, although such statements can be waived or reserved.  Many attorneys and court observers believe that opening statements are crucial to the outcome of cases.  Others feel that opening statements are overrated and that the evidence presented at trial is far more important.

3. PRESENTATION OF EVIDENCE – After each attorney gives their opening statement, the prosecution will present its evidence against the defendant.  This can include the examination of witnesses, the introduction of scientific (e.g., ballistic, fingerprint or DNA) evidence, physical evidence (documents, drugs, guns) photographs or videos of the underlying incident, or other things that tend to prove the defendant committed the alleged crime.  The defense has the opportunity to question (cross-examine) any witnesses called by the prosecution and vice versa.  After the prosecution has rested its case, the defendant gets to present his/her own evidence to show that they are not guilty.  The burden of proof is on the prosecution, meaning that the defendant has no obligation to offer any evidence and will be found not guilty unless the prosecutor presents enough evidence to prove beyond a reasonable doubt that the defendant committed the crime(s) in question.

4. CLOSING ARGUMENTS – As with their views as to the importance of opening statements (which are not arguments) lawyers, judges, and court observers differ on the importance of closing arguments.  They are, however, often the most dramatic part of trials.  They typically include summaries of the evidence presented, arguments as to how the jury should interpret that evidence, and pleas that the judge or jury find in favor of the defense or the prosecution.  At their conclusion, the court will instruct juries as to the law, but that neither opening statements nor closing arguments constitutes evidence.

5. DELIBERATION – After closing arguments, the judge will give the jury a set of instructions regarding the relevant law and ask the jury to retire to the deliberation room to decide whether the defendant is guilty.  Their first item of business is to select a foreperson, who will guide deliberations, communicate with the court and ultimately deliver any verdicts to the court.  The deliberation process can take minutes or days, depending on the complexity of the case.  A conviction requires a unanimous vote.  If the jury is unable to reach a unanimous decision, a “hung jury” will result, the case will be declared a mistrial, and can potentially be tried again.

6. SENTENCING – If the defendant is found guilty, the judge will determine and impose the sentence.  The judge can either decide immediately or take additional time do determine what the appropriate sentence is.  In some cases, presentence investigations or reports may be done.  The defense will be allowed to present mitigating evidence in order to convince the judge to impose a more lenient sentence. Similarly, the prosecution will be allowed to present evidence and argument in aggravation (to increase punishment.)  The range of punishments is set by statute and can include jail or prison time, probation, fines, community service, restitution, banishment, a host of other conditions, and – in capital cases – even a death sentence.

 

            We, at Michael Moran & Associates, hope this “roadmap” provides you with a better idea of what your criminal case will involve.  Obviously, there is much more to the defense of a criminal case than we can fit in one article.  This is where our expertise comes in.    

            The skill set and experience to know: which motions to file; when to file them; which jurors to strike (and which ones to keep); how to formulate and effectively present a theory of defense; how your charges may affect your probation or immigration status; what the sentence ranges are for the crimes you're charged with; information about the judge and prosecutor; the extensive rules of evidence; how to effectively question witnesses; and a large  number of other considerations – all are crucial to your case.


If you live in Atlanta, or the surrounding counties, we can provide you quality legal representation for affordable fees.  Our initial consultations are free.  Our attorneys have decades of experience in the field of criminal law and have handled thousands of cases.  Give us a call.  We look forward to the opportunity to assist you.

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