Arraignment, Bail/Bond, Preliminary Exam, Pre-Trial, Trial and Sentencing

Before we even get into the different types of criminal offenses, or the courts and the roles they play, we need to understand some basic terms of criminal procedure. The following is an explanation of some of the more common terms used at the various stages of a criminal case. Please note that I explain of the various types of criminal offenses in the following section, entitled “Felonies and Misdemeanors.”

A defendant is a person charged with a crime.  When any kind of misdemeanor or felony charge is made against someone, he or she becomes a defendant.  

An arraignment is the first step in every criminal case, whether it is a misdemeanor or a felony. If you were arrested, you may have already been arraigned before you were let out of jail. In some cases, a person may not be arrested, but given a ticket, instead, or be told that a citation or notice will be sent to them, in the mail. In other situations (often in DUI cases), a person will be released from jail the next morning, sometimes after posting a small bond. Either way, at some point, before a criminal case can formally begin, a person must be arraigned. This simply means that he or she appears before a Judge (or Magistrate) and is told exactly what crime they are being charged with, what the penalties are for that crime, and then told (or given a form containing) their constitutional rights. In some cases, the Court will have a person read and sign this form, called an “Advice of Rights,” which lists all of those rights the lawyer provides to each and every person accused of a crime. These include the right to be presumed innocent, the right to remain silent, the right to a public and speedy trial, and the right to an attorney.

For some people, especially those charged with a felony offense it is the bond part of the arraignment that is most important, because this is when and where that they will learn exactly how much money needs to be put up to get them out of jail. Depending on the seriousness of the crime and the defendant’s prior criminal record, if any, bond can be set at any amount, from what is known as a PR (personal recognizance bond, that doesn’t require any money to be posed) to any amount of money (from $100, $1000, or $10,0000 all the way to $100,000 or more). In extremely serious cases, a Judge can deny Bond altogether. Usually, a Judge will set a bond with 10% provision, meaning that the defendant, his or her family, or any bail bond agency they hire will only have to post 10% of the bond amount.

For example, if bond is set at $10,000, 10%, then only $1000 needs to be posted to get someone out of jail.

A probable cause conference is the first stage in a felony case, and it must take place within 7 days from the date of arraignment. By law, the prosecutor must be ready to present evidence at a preliminary examination, which must be scheduled within 7 days of the probable cause conference, unless it is waived (and it usually is).  This is important stuff, and it can be confusing, so let’s break this down a bit.

The preliminary exam serves two legal purposes. First, if the exam is actually held (as opposed to the far more common practice of waiving it) the prosecutor has to prove that a crime was committed, or a law broken. Second, the prosecutor must prove that there is at least probable cause to believe the defendant, meaning the person charged, is the one who committed that crime. Now in practice, that really means that the prosecutor must convince the Judge that it is likely a crime was committed it, and that there is an honest, at least debatable, question of fact that the defendant committed it. This is what lawyers call a low threshold, or low standard, meaning that the prosecutor doesn’t have to prove much. In fact, after a preliminary exam, unless the Judge is convinced that the case against a defendant is so weak that it practically screams to be dismissed, the case must be “bound over”, or transferred, to the circuit court in the county where it is pending.

A pre-trial occurs in both felony and misdemeanor cases. In a misdemeanor case, the pre-trial comes after the arraignment. Some district courts schedule defendants for what is called an “arraignment/pre-trial.” The pre-trial is generally the meatiest of all court proceedings, because it’s where the defense lawyer and the Prosecutor usually discuss ways to resolve a pending charge. Often, these discussions lead to a plea-bargain, meaning a reduction of the original charge to one less serious. There can be more than one pre-trial hearing in any given case.

In a felony case, the pre-trial is usually held a few weeks after the probable cause conference, and is the first hearing in the circuit court, where felony cases that are “bound over” are ultimately resolved

A trial, while perhaps the most complex of legal proceedings is the easiest to describe. A person who believes him or herself innocent of a charge, or a person who believes or hopes that the prosecutor will not be able to prove him or her guilty beyond a reasonable doubt, can have his or her case decided by trial. There are two kinds of trials: bench trials, meaning a trial heard by a Judge alone, with no jury, and jury trials, which of course mean a trial heard and decided by a jury. The end result of a trial is a verdict, which means a finding, either by the Judge or the jury, of guilty, or not guilty.

Sentencing is really the most important part of their case. It is what happens to the defendant; it is the end-result of a criminal case. It is at this final stage that the Judge hearing a person’s case decides their what will happen to him or her. At the sentencing, a Judge will order a defendant to do certain things, like attend counseling and do alcohol and/or drug testing. In addition, the Judge will order the defendant to NOT do certain things, like consume any alcohol during the period of probation, and not get into any more criminal trouble.

Obviously, for anyone having to stand before a Judge for  sentencing, the most important thing is whether or not the Judge sends them to jail, or prison.

In the real world, most convictions or pleas result in a sentence of probation. Sometimes, a person can be placed on the least restrictive, non-reporting kind of probation, while other probationary sentences require the person to report once a month. Sometimes, probation can involve what is known as a “tether” or house arrest. Although probation can entail many things, it most usually involves no jail, and requires the defendant to simply stay out of trouble.

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