ANATOMY OF A CRIMINAL CASE

Every criminal case begins with an allegation and investigation. The person who makes the allegation, the "victim", will usually file a police report with the local police department. One or more police officers and/or detectives are assigned to investigate the case which will include interviewing witnesses, gathering physical evidence, and any other information they can attain.

If the government thinks there is enough evidence, the prosecutor will file an information, complaint, or indictment with the court. The person who is accused of committing the offense, the "defendant" will then have a warrant issued for his arrest and be arraigned before a magistrate. The defendant will have the formal charges read to him and the judge may either set a bond amount or may refuse to set a bond, depending on the circumstances of the case. The judge may even issue conditions of bond, such as no contact with the victim. The bond is set to ensure the appearance of the defendant in court and should in no way be oppressive.

Once a bond has been set and the defendant has either posted bond and been released or decided they can't afford to make bond, the case gets set on the court's docket. Then the defense attorney will investigate the case, prepare any pre-trial motions, interview witnesses and prepare for trial. Meanwhile, the District Attorney's office is also preparing for trial. The prosecutor and the defense attorney will begin engaging in plea bargain negotiations. The case will either plead or go to trial. There are many factors that need to be considered in deciding whether or not to accept a plea bargain offer and you should consult with your attorney in great detail regarding the implications of your decision.

It is ultimately the defendant's choice whether or not to enter into a plea bargain agreement. If the defendant chooses not to enter into a plea agreement, the case goes to trial and it can be a trial before a judge or jury. In a misdemeanor case, six jurors are selected to hear the case and twelve jurors are selected if it is a felony. If the defendant is found not guilty, the case is finished and the defendant is released and can get the arrest expunged, in other words, completely erased from his record. If the defendant is found guilty, there will be a sentencing hearing to determine the punishment, which varies depending on the offense. In Texas, the defendant can make an election as to punishment and decide whether to allow the judge or the jury that heard the case to sentence him.

There are certain limitations however and in certain circumstances the judge or jury may not be able to sentence the defendant to probation. Every case is different and with the laws constantly changing, it is important to be aware of the implications of your decision. Consult a lawyer you trust to guide you and provide you with information regarding new legislation and the consequences of your decision.

Helen Simotas became licensed to practice law in Texas in 1996 after graduating from St. Mary's University School of Law. Ms. Simotas is also a graduate of Gerry Spence's Trial Lawyers College.
No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.

FIGHTING FOR YOUR FREEDOM

As a criminal defense attorney, one of the most common questions I get is "How can you defend people who you know are guilty." That's the easy part. What's harder is defending someone I know is innocent.

Most clients come to me not because they want me to "get them off" or find a loophole, but because they're afraid. Afraid to go to prison, afraid of the criminal justice system, afraid of going to court. They want me to get them the best deal possible, perhaps a reduced jail sentence, or probation period. It's also my job to make sure the government does theirs. If the arrest was illegal or the search was bad, then the case could and should get dismissed. We all have standards and rules to uphold to, including law enforcement. If we have to play by the rules, so should the government. We all enjoy the freedom of being in the comfort of our own home and knowing that a police officer can't just break down the door and come search our home without a search warrant or probable cause to believe we've committed an offense. These are the freedoms defense attorneys fight for.

Sometimes guilty people are set free, but worse yet, there are too many instances when innocent people are convicted.