Kent Underwood wants you to know
An entire process is triggered when you are charged with a crime. Although you may not personally go through every step, Tacoma criminal attorney Kent Underwood believes you are better able to aid in your own defense once you understand the entire process and the terms used.
The criminal judicial process
Typically, a person is stopped, questioned, read Miranda rights, arrested, arraigned, and held over for trial. In most cases, the earlier in the process a criminal lawyer is engaged, the more positive the outcome. These are the major elements of the criminal process and common terms used to describe them.
- Arraignment hearing – Determines if there is enough evidence to hold the person arrested for trial. If yes, the person is formally charged. If not, charges are dropped and the person is set free.
- Bail hearing – Bail is set or the defendant is released on his/her own recognizance
- Omnibus hearing – Attended by judge, prosecutor, and defense council to determine what evidence seized during the arrest will be admitted during the trial
- Physical evidence – Weapons, fingerprints, fibers, and countless other indications of circumstantial and direct evidence that the defendant committed the crime
- Witnesses – People with information relevant to the actual crime, or the defendant, testifying on behalf of the prosecution or defense
- Expert witnesses – People with credentials in technical areas relevant to the defendant, evidence, or witnesses, testifying on behalf of the prosecution or defense
- Discovery – The sharing of evidence between the prosecution and defense required by law prior to trial; includes lists of possible witnesses, physical evidence, etc.
- Case law – Research into previous cases to determine how the handling of evidence and testimony impacted the outcome
Preparation for the trial
- Defense strategy – The way defense attorneys and clients agree to approach the trial to introduce reasonable doubt in the minds of the jury
- Preparing witnesses – Interviewing witnesses in advance to ensure their testimony at trial is consistent, clear, and predictable
- Pre-Trial Motions – Motions submitted in advance and argued before the judge prior to the trial
- Motion to dismiss – Routinely used to ask the judge to dismiss charges based on the lack of evidence
- Motion in limine – Used to exclude evidence based on rules of law
- Motion to suppress – Designed to keep evidence procured under questionable circumstances from being used against the defendant
- Motion to sever – Used to divide defendants or charges so they are tried separately
- Jury selection – Voir dire (or questioning) of potential jurors; prosecution and defense lawyers each choose jurors thought to be favorable to their side
- Opening statements – Brief presentation of the expected evidence; prosecutor presents the state’s case first; defense has the option of presenting immediately or deferring until opening of the defense case
- Direct examination – The state calls witnesses to ask them questions
- Cross examination – The defense questions the state’s witnesses
- The state rests – The prosecutor is finished presenting the state’s case
- Half-time motion – A motion to dismiss is commonly made at this time; need grounds such as: the state failed to present enough evidence to convict; seldom a successful motion
- The defense has the option of putting on a case of its own or relying on the weakness of the state’s case to bring in a not guilty verdict
- Direct examination – The defense calls witnesses to ask them questions
- Cross examination – The state questions the defense’s witnesses
- The state has option of rebutting evidence that the defense brought in
– State presents closing arguments first, then the defense. The state has an opportunity for rebuttal.
– The judge instructs jury members regarding the law and limits their deliberations to the admitted evidence; jury members are instructed to consider finding the defendant guilty of lesser offenses if they decide the facts warrant that instead of the original charges.
– The jury meets in private to discuss the case and decide on a verdict.
– The defendant may be found not guilty and freed; if guilty, the case is held over for sentencing
Post Trial Motions
– Used to object to the verdict, request the judge to dismiss charges for evidentiary issues or insufficient evidence
Appeal to Appellate or Supreme Court – As a matter of right, those convicted can appeal to either court; conditions must be met; Supreme Court may decide not to hear an appeal
Legal terms and contracts explained
- When one does and does not have to speak to police – Police must be treated with respect. When asked, you must provide identification and reasonable explanations of your whereabouts. You are not required to discuss specific crime-related information or to incriminate yourself.
- When to allow police into your home or car – You are required to allow the police access to your home and car if a search warrant is presented. Read the warrant carefully since it is supposed to state specifically what the search is for and where it may be conducted.
- When the police can come in without permission – If something illegal is in plain view, or the police are pursing a suspect, they may enter your home or car without permission.
- Guilty beyond a reasonable doubt – All jurors must agree the evidence has convinced them completely that the defendant is guilty with no doubt.
- Presumption of innocence – A cornerstone of the American justice system is that all defendants are innocent until proven guilty. This means the responsibility to prove guilt is generally placed on the prosecution. Those accused do not need to prove their innocence, except in cases where affirmative defense is required.
- Right to a speedy trial – This rule of law controls the amount of time allowed before a trial must take place: In theory, speedy means 60 days for in-custody defendants and 90 days for out-of-custody (out on bail) defendants. However, trial dates are routinely extended.
- Trial extensions – There are many reasons why a trial can be extended including witness availability, complexity of investigation and preparation, drug, alcohol, and psychological evaluations, scheduling issues, and courtroom congestion.
- Appellate bond – A bond is posted that allows freedom to the convicted until an appeal is heard; need to have a special circumstances; it is almost never granted.