What Can I Expect to Happen with the Criminal Pre-Trial and Trial Process?
Understanding Criminal Pre-Trial and Trial Processes
With the exception of capital crimes, you have a right to a prompt determination of bail or release in Washington State, and excessive bail is prohibited. Bail may be set at arraignment, a bail hearing, or other initial hearing. It may also be set upon issuing a warrant for your arrest.
You could also be released on your own personal recognizance (PR), meaning that no bail is set…you simply promise to come to court when ordered. However, there will often be terms and conditions associated with a PR release. A violation of your terms can land you back in custody. There are also other release programs, such as supervised release by a probation officer or home detention.
The main two considerations the judge looks at when considering bail or release are whether you are a danger to the community and whether you are a flight risk. When looking at whether you are a danger, the judge will consider the crime in which you are currently charged with and your prior criminal history. For flight risk, the judge looks at everything from your ties to the community to whether or not you have a passport. Our goal is, of course, to convince the judge that you are neither a danger nor a flight risk.
If you are arrested in Washington State, court rules demand that you be brought before a judge on the next “judicial day” or within 48 hours. At this appearance, the judge will make a determination as to whether there is probable cause to detain you.
After the arraignment, depending on the type of case you are facing, these hearing are set in order to allow us to do several things such as: (1) discuss your case further with the prosecutor, (2) request additional discovery, (3) present discovery/materials to the prosecutor, (4) engage in plea negotiations, (5) set another hearing for supplementary investigation/negotiations, (6) resolve the case by dismissal or plea, or (7) set a trial date if not other resolution is in sight.
- Dismissal: The best-case scenario, and what we strive for whenever possible, is an outright dismissal of charges before trial. A dismissal can come about as a result of different things, ranging anywhere from the suppression of vital evidence against you to undeniable proof of your innocence. As you can imagine, a complete dismissal before trial is not possible in the majority of cases.
- Guilty Plea: If a dismissal does not occur and a trial is not in your best interest, then a negotiated plea agreement is worked out. The details of the plea are agreed upon with the prosecutor and then submitted to the judge for approval. The judge does not have to accept the plea, but typically does accept it when both parties are in agreement. By virtue of entering a guilty plea, you are waiving several constitutional rights including the right to trial and to confront witnesses. You will be questioned “on the record” to confirm you understand all your rights and all the terms of the guilty plea. Following the plea, sentencing may either happen immediately or at a future date.
- Trial: Lastly, a trial occurs when neither a dismissal or a plea occurs. The trial process is discussed in more detail below.
We became defense attorneys to stand up in front of a jury and fight for our client’s rights. To tell our client’s story and paint a “fact and evidence” based picture for the jury with the goal of leaving only one inevitable and undeniable verdict: Not Guilty. That said, the vast majority of criminal cases never go to trial. The reason for this is due to a number of factors. What it boils down to is the combination of facts, evidence, and negotiation often lead to resolutions that are very favorable when compared to the risk of going to a trial. For instance, a client could be offered a plea deal that involves no time in custody, but if he goes to trial and is found guilty, he could be sentenced to several years in prison. That said, there are definitely some cases where trial is in our client’s best interest and when those situations arise, we are always ready to go.
So what is a trial like? The execution of a trial is highly technical and requires a very skilled attorney to be successful. Despite this, the basic process of a trial itself is fairly straightforward.
Jury selection is also known as “voire dire,” a French term popularly translated as “to see you say.” I cannot stress enough how important this stage of the case is. Many attorneys unfortunately brush off this critical part of a trial and then wind up with a biased jury. Believe it or not, many cases are won and lost at jury selection. Conducting an effective voire dire is hard. We make it look easy.
This is the first chance attorneys get to explain their theory of the case to the jury and outline what they believe the evidence will show. This is another critical stage of a trial. Defense attorneys are given the option to withhold giving an opening statement until after the prosecution’s case in chief. Waiting to give an opening statement would be like me dressing up in a Halloween costume for trial…a huge mistake.
- Direct Examination: The prosecution will call their witnesses and present evidence against you. Leading questions may not be asked in direct examination. Thus, with many witnesses, the majority of questions will simply consist of the prosecutor asking the witness, “And what happened next?” We listen intently to the answers witnesses give, so we can make sure to address whatever comes up in our cross-examination of the witness, and also so we can object if the prosecutor steps outside the bounds with any questions.
- Cross Examination: Now it’s our turn. This is one of our favorite parts about trial. It is an excellent opportunity to truly establish your defense and set up the closing arguments. We know what we need the witness to say, and we know how to get them to say it. While in many ways, cross-examination is an art form, there are also “rules” that must be followed. Unfortunately, many attorneys really don’t know how to perform an effective cross. This is truly dangerous as a poor cross can easily put your entire case in jeopardy.
The defense is NOT required to put on any evidence. In other words, after the prosecution rests, we could simply immediately rest as well without putting on any witnesses or introducing any evidence whatsoever. Sound like a bad idea? It usually is…not because the prosecution has proved their case beyond a reasonable doubt, but because juries typically “expect” to hear from the defense.
After the defense rests its case, the prosecution gets one more bite at the apple by being allowed to offer evidence in rebuttal to the evidence we presented. They can call new witnesses or recall witnesses that have already testified and put them through another direct examination. Fortunately, we also get the opportunity to cross examine any witnesses presented during rebuttal.
While this is the last part of the case, it is what we prepare for first. From the moment we conduct our first free consultation with you, we are thinking about what our closing arguments are going to be. We pride ourselves on giving powerful and persuasive closing arguments. There’s only one problem with this…research indicates that almost all jurors make up their mind about a case BEFORE the closing arguments! Thus, the true value of a closing argument is to summarize the case in a manner that will provide additional ammunition for jurors that are on your side once they get back to the jury deliberation room.
Because the prosecution carries the burden of proof in a case, they are allowed to give both the FIRST closing statement and the LAST closing statement (called a rebuttal argument).
Once the closing arguments are wrapped up and the judge has read the law to the jury, they are excused to the deliberation room, where they will pick a foreperson and begin deliberations. Deliberations can last anywhere from minutes to days. Some attorneys try to predict the outcome based on how long deliberations take, but the truth is there is no real way of knowing what the verdict is until you hear it read.
This is the moment of truth. In Washington, if you are charged with a misdemeanor, you have to put your trust in 6 of your “peers” and if you are charged with a felony, 12 of your “peers.” They all must reach a unanimous verdict to acquit or convict. In other words, if one or more jurors disagrees with the rest of the jurors, then you have what is known as a “hung jury.” When this occurs, most judges will initially tell the jury to keep trying to reach a verdict. If it becomes clear that they will never reach a unanimous verdict, then a mistrial is declared. After a mistrial, the entire trial process starts over again. However, a second trial is not always the end result of a mistrial; for instance, the judge can throw out the case, the prosecutor could decide to dismiss it, or a more favorable plea could be worked out.
When the verdict is Not Guilty, then that’s the end of the story. You walk out of the courtroom a free person with no conviction on your record. And thanks to the Fifth Amendment, Double Jeopardy bars the state from ever prosecuting you again for the same charge.
On the other hand, if the verdict is Guilty, then the next step is a sentencing hearing. This hearing is incredibly important and must be carefully prepared for. If your attorney does what is necessary to prepare for sentencing, the end result could be a significantly more lenient sentence. The individual circumstances of your case determine what approach to take here, and this would be decided close to the time of the hearing.