Your client’s son has just been arrested and he is being carted off to jail. Your client is scared to death for his kid and is calling you for guidance. What are you going to do?
When you do not practice criminal law, the call from the client or friend who has just been arrested or received a summons can be daunting. In many cases, the average attorney has not seen a criminal case since law school. If you have been fortunate to have at least started your career in a prosecutor or defender’s office, you may have some fond memories of how to deal with those initial phone calls. But for the rest of us, receiving that call by stressed-out family members or clients as their loved one is being handcuffed and taken away in the middle of the night can be very stressful.
If you get that call, grab a pen and try to obtain as much of the following information as possible:
- Name of person facing investigation or charges
- The person’s date of birth
- The date of the offense
- The investigating agency/jurisdiction of the investigation: try to obtain the police report number. If the police are on the scene, try to speak with an officer.
- Determine if the matter being investigated is a misdemeanor or felony
- If you client is under arrest, determine what jail he is in or heading to. If already in jail, obtain the person’s booking number and, if available, the bond
- Determine the next court date (within 24 hours of arrest for the initial appearance)
- Ask your client about witnesses or evidence that might need to be immediately preserved (such as photographing injuries he may have received, or pictures of a crime scene)
With the information noted above, you will be able to contact the appropriate law enforcement agency, prosecutor, court or jail. You may be able to locate and speak with your client at the jail. You may be able to speak with the arresting officer or the assigned detective. You may be in a position to begin negotiating release conditions with the prosecutor or quickly provide information to the court to derail the basis for the arrest and detention. The more quickly you can intercede, the more likely you can prevent your client from making unfortunate statements to law enforcement, other inmates, etc… In higher profile matters, you can even step in and counsel your client and his family before reporters start to contact them.
With this basic information, you can understand the general situation and counsel your client. But in many cases, they want more information about the process of the criminal courts.
Basic Criminal Process:
In Arizona there are two basic types of criminal offenses: misdemeanors and felonies. In the most general terms, a misdemeanor is any criminal offense in which no prison is possible, but jail is possible. A felony is any criminal offense in which prison is possible.
Jail is controlled by the county and may allow for work release or work furlough. Generally, a jail sentence may not exceed one year (for a felony) or six months (for a misdemeanor). Probation is possible and may or may not be supervised. Prison is controlled by the state of Arizona. No work release or furlough is possible.
Initial Appearance (IA) and Setting Release Conditions:
Within 24 hours of being arrested, the defendant must be brought before the court for an initial appearance. The basic function of the IA is to be advised of the reasons for the arrest, to set the conditions of release, and to set the next court date. This is also the first chance you have at appearing on behalf of you client and arguing for release conditions. This is not a forum to argue the merits of the case.
The court can release the defendant solely upon their promise to appear at your future court appearances. This is a true release on one’s own recognizance (O.R.). The court can require release to a 3rd party. In most cases involving a 3rd party, it will be pretrial services. The court can order the release to be conditional on drug testing and/or electronic monitoring. The court could also decide to impose a bond. Depending on the court’s requirements, the bond may be limited to cash or property. If using a bonding company, the bondsman will normally charge a fee of 10% of the bond plus collateral equal to the total bond. Some matters are non-bondable.
The Next Court Date:
In felony matters, the prosecutor must be prepared to establish sufficient evidence exists to believe the person charged actually committed the offense. If your client is in custody, the prosecutor may elect to show sufficient evidence in one of two methods:
First, they may take the matter through a preliminary hearing. At the preliminary hearing, a judge will determine if the state has sufficient evidence that the defendant committed the crime charge.
Alternatively, the prosecutor may elect to proceed with a grand jury. If proceeding by this method, the prosecutor presents the evidence before at least 9 people. If those grand jurors decide the state has sufficient evidence.
Each of these mechanisms require different methods of presenting a defense. How you elect to present your case and client before a judge at the hearing or before the grand jury will depend on your investigation into the case and your experience in dealing with the crimes charged. If there is a finding in either proceeding that sufficient evidence exists, the case will be set (also known as “bound over”) for an arraignment.
This is the court appearance in which a plea of not guilty is entered and a pretrial or trial date is set. In most misdemeanor cases, counsel can appear on behalf of the client. Rule 14.1, Arizona Rules of Criminal Procedure. However, if charged with a felony, the defendant must appear at all court appearances unless a special waiver is filed and accepted by the court.
Diversion or Deferred Prosecution:
In some cases you may be eligible for “diversion.” If provided diversion, the prosecutor will allow you to enter a counseling program and no charges will be filed. No plea agreement is entered. Most prosecuting agencies no longer offer this option. If offered deferred prosecution, the defendant must enter a guilty plea in most cases, then complete the counseling. If counseling is successfully completed, the charges will normally be dismissed. However, if the defendant does not successfully complete the counseling, the terms of punishment set forth in the plea agreement will be imposed and a conviction formally entered. The important part of either diversion or deferred prosecution is that there is no formal conviction and therefore, no criminal record. (There is still an arrest, and in most cases, a prosecution history available on public databases)
The court may or may not set these conferences. At the conferences, the attorneys will exchange or share information and/or discovery and advise the court regarding the status of the case and trial preparation. If there is a plea bargain, this is normally the proceeding in which you will enter into the change of plea before the court.
Normally used only in felony cases, it is a conference set before a non- trial judge in the hopes of mediating a plea agreement. In the old days, mediation was a realistic possibility. Now, it is more an educational process for the defendant and his family. I have found that small differences in the party’s positions may be resolved in this setting.
In our justice system, you are always entitled to a trial in which the government must prove your guilt beyond a reasonable doubt. In most cases you will be entitled to a jury trial. The number of jurors will depend on the type of charges and your criminal history.
If you change your plea or are convicted after trial, the court will normally delay sentencing for approximately 30 days for a felony. The court will normally proceed to an immediate sentencing if you are convicted of a misdemeanor.
Criminal law has become very specialized. The prosecutors and courts have developed their own processes for moving cases through their respective system. If it has been awhile since you have practiced in this arena, you may recognize the terms above. But, I guarantee the process has become more distant and harder to negotiate. You can no longer just knock on a prosecutor’s door or pick up a phone and obtain instant results.
If you have never worked criminal law, then please be very careful. Criminal defense always begins with a strong foundation. Mistakes made in the early stages can certainly limit or prevent defenses or arguments later on. Making the correct arguments the proper way and in the proper forum at the outset, may urge the state to reconsider its position to prosecute or allow for a favorable plea.