An Overview of the Criminal Justice Process
The criminal justice process can be overwhelming, and, if you are the defendant, it can be downright frightening. Because each case is different and each defendant is different, the criminal justice process is not a one-size-fits-all proposition. But there are steps that are the same no matter what charges you may face. We’re going to review those now.
Why was I arrested?
A police officer observes what he believes to be a crime. That’s his probable cause to arrest you and initiate the criminal justice process. For example, you’re speeding, and the police pull you over. When they approach your car to check your credentials, they smell marijuana. That’s enough evidence for them to arrest you. Your charges could be drug possession, paraphernalia possession, and/or drug distribution. But the police don’t know the charges yet, because they have not done their investigation. They just have enough probable cause to arrest you.
Or think of this: Police receive an anonymous 911 call. The caller says she hears a noise from the neighboring apartment – yours. Police knock on your door; you open it, and they see your wife standing in the living room, crying and holding her head. They think you’ve slapped her, which is an act of domestic violence. This is all the evidence they need to arrest you and charge you with simple assault.
Regardless of why you are arrested, you are handcuffed, put in the patrol car, and taken to the police station. Once there, you are fingerprinted, and your mug shot is taken. If the charges involve a sex crime, you may also have a DNA swab taken.
Remember your rights
You have specific rights in the criminal justice process, two that you need to especially remember: The right to an attorney and the right to remain silent.
As soon as those handcuffs go on – whether you are on the sidewalk, in your car, or in your house – lawyer up! Tell the police you want a lawyer. Don’t try to tell your side of the story. That never works, and you could give law enforcement more ammunition to use against you. I can’t tell you how many clients have tried to talk their way out of charges, only to find everything they said written into a police report.
So in the initial stage of the criminal justice process, the first thing you should do is not talk to law enforcement – except to emphasize that you want a lawyer. Then get on the phone and call your attorney.
I’ve been arrested. What happens now?
The next step as you move through the criminal justice process is bail. Bail is applied based on different factors. Imagine two defendants – one who has a clean record and one who has been arrested multiple times. The first person, accused of simple assault, which is a misdemeanor in New Jersey, may be released at the police station. This is called “Released on your Own Recognizance” (ROR). This means that he has given his word that he will show up for court.
The second person who has been arrested multiple times will probably be detained. Judges view multiple arrests or repeat offenders as “dangers to society”.
What if I have a record?
The criminal justice process is different for a violent criminal with, say, 20 violent convictions who has been caught for the 21st time. The message to the judge is that this person is not learning his lesson, and there’s a strong likelihood he will not be released. He will be held in jail because he is perceived as a threat to society.
In the criminal justice process, courts look at you, your record, and the type of crime you have committed, and they make an assessment. The case gets more complicated when there are three or four criminal charges or if you are from out of state and are determined to be a flight risk.
What happens at my first court appearance?
A first court appearance will follow in the criminal justice process. This is an administrative function that is similar to your first day of school. Basically, you go before the judge and show that you are present and aware of your charges – just as you would go to class, meet your teachers, and get your schedule on the first day of school.
Will I need an attorney for this appearance?
If you do not have an attorney during your first court appearance, the judge will ask if you intend to hire one and will give you an opportunity to apply for a public defender or court-appointed attorney if you need to.
At this phase of the criminal justice process, the judge will also read off your charges and the consequences of each charge and ask you to enter a plea. “Not guilty” is the plea that should be entered 100 percent of the time. You will not be asked about facts concerning the case. You will appear before the judge, confirm your plan for an attorney, and enter your plea. It’s that simple.
What is an indictment?
The indictment phase of the criminal justice process can get complicated, but I am going to keep this information really simple. In Jersey, for example, there are two categories of criminal offenses: low-level misdemeanors and felonies. Low-level misdemeanors are things like simple assault. Felonies are serious offenses – murder, rape, drug distribution, and gun charges.
Felonies are not called ‘felonies’
In the New Jersey criminal justice system, felonies are called “indictable offenses.” An indictment is a constitutional safeguard, something that has been put into place to protect you in the criminal justice process.
Remember when we discussed that the police officer needed probable cause to arrest you? With the evidence he had, the officer felt that you either had already committed a crime or were about to commit one, so he arrested you. The indictment is the process where the grand jury listens to the evidence that was gathered against you. It’s the grand jury – not the police officer – who makes a determination about probable cause.
That’s the cool thing about this part of the criminal justice process: The whole case was started with a police officer’s probable cause finding, followed by your arrest. Now the grand jury comes in. The grand jury is made up of random people in the community who listen to the evidence. If they find that there is sufficient probable cause and sufficient evidence that maybe you did commit this crime, they sign an indictment. The indictment formalizes the criminal justice process and moves the case toward trial.
What happens in post-indictment?
You’ve had your first court appearance, and you’ve been indicted. Now the criminal court process shifts into “discovery.” At this time, the prosecutor must give your defense attorney the evidence they have against you – all police reports, witness statements, surveillance videos, text messages, emails, pictures, etc.
What does my attorney do with this information?
An excellent defense attorney has not been wasting time. By this point, we have already been doing our own investigation before we receive anything from the prosecutor. Let’s say you were involved in a bar fight. By now, we will have already sent our own defense investigators to the bar. We will have interviewed the bartender, looked for witnesses, and asked for the surveillance video. When we get evidence we intend to use in your defense, such as video showing that you acted in self-defense, we provide that information to the prosecutor. Why do we do all of this? Because 90 percent of criminal cases end in a plea bargain.
So, what is a plea bargain?
A plea bargain is a way to avoid taking a case to trial and risking a guilty verdict. The prosecutor has the burden of proof to prove you guilty beyond a reasonable doubt. They are the ones bringing the case. They made the arrest; they said they had probable cause. So our attitude is, “Okay, prove it.”
We do not have to share our investigation unless we intend to use it. If we have surveillance video that shows you are not the guy, we would use that in a plea negotiation.
What if you can’t show that I am innocent?
Let’s say from our earlier example that the bar did not have a working camera or none of the witnesses remembered you. What if all we have is the prosecutor’s evidence?
This is when we go into plea negotiations. Picture this scenario: The prosecutor says that you were charged with second degree aggravated assault for punching the victim and breaking his jaw. I will reply: “I understand. But the victim was the aggressor, and my client was acting in self-defense. I can show that if we go to trial.”
The prosecutor may agree and offer a lesser charge, maybe a fourth-degree charge. (Remember: In New Jersey, the first degree is worst and carries the most penalties.) I could then agree to talk with you about the plea bargain, provided you do not have to go to county jail or prison. If the prosecutor agrees to take this non-custodial deal, he may still require you to pay restitution, such as the victim’s hospital bill, which would be a reasonable offer.
And that’s how the plea negotiation works in the criminal justice process.
To trial, or not to trial?
Let’s say you have been presented with a lesser charge of fourth-degree felony. While it may be non-custodial, you will still have to pay restitution, and you will have a felony conviction on your record. That means you may not be able to get certain jobs, you cannot get into certain schools, and you may lose the job you have. You will have to wait for years until you get your criminal record expunged.
You can say, “Listen. I was acting in self-defense. I want to testify. I want to take the stand and explain.” The option is yours and we will be behind you 100 percent.
It’s about who has control
With a plea bargain, you have control over your destiny. As in the case we have discussed, that means you know you are not going to prison. But two things can happen in a trial: The jury can listen to all the evidence and acquit you, which means they say you are not guilty and you are home free, or the jury can be persuaded by the prosecutor and find you guilty. If that happens, the judge has no choice but to sentence you to a second-degree felony. Now you are looking at five to 10 years in prison. That’s something you have to think about; it’s a decision you have to make.
What’s a trial tax?
Remember, in the criminal justice process, each case is different, and, actually, each individual charge can be different. If you choose to go to trial, the prosecutor may bring more serious charges against you. This is called a “trial tax.” You will face all the charges that you have been accused of, and you may win on some and lose on others. You may win on all of them, or you may lose on all of them.
There are more options to consider
We’ve given an overview of the criminal justice process, but there are other options that should be considered. In New Jersey, probationary options are available. Instead of pleading guilty or going to trial and possibly being incarcerated, there are diversionary programs.
What is a diversion?
You are on the path of the criminal justice process, and you are either going to plead guilty or go to trial. A diversion lets you get off of that path.
At the superior court level, once you have been indicted, there are a couple of programs available. One is the pretrial intervention (PTI), which is for indictable offenses (felonies). Depending on your charges, you may qualify for probation if you have a clean record and have never had charges in the New Jersey criminal justice system.
Another option for indictable offenses is drug court, a special program for people who are addicted to alcohol, drugs, or both, who commit a crime while under the influence. That means their thinking, their judgment was impaired at the time of the crime. As a society, we have a greater interest in rehabilitating a person than punishing them, so drug court is another way to avoid going to trial or pleading guilty and going to prison.
Diversions for misdemeanors
In New Jersey, misdemeanors are called disorderly persons offenses and are heard in municipal court. Depending on what you are charged with, you may be eligible for a diversionary program or probation.
Drug-related offenses at the misdemeanor level can qualify for a conditional discharge. Non-drug related misdemeanors can qualify for conditional dismissal. Not all misdemeanors are eligible, however. For example, if you are charged for simple assault from a domestic violence situation, you are not eligible for conditional dismissal in the New Jersey criminal justice process.
So, can you get my charges dismissed?
This is the question I am asked by every client who walks through my door. The answer is, yes, it is possible, but it is not easy. Charges get dismissed all the time, but the unique facts of your case are taken into account.
For instance, if we question how a police officer got evidence in a felony drug case, we can file a motion to suppress. If the court agrees with us that your constitutional rights were violated during the criminal justice process, there is a very good chance the drug charges will get dismissed.
Another way to dismiss criminal charges is through the defense attorneys themselves. At the conclusion of our own investigation, we may find evidence that law enforcement and/or the prosecutor did not have. We can show that evidence during plea negotiations. If the evidence exonerates you or shows that it wasn’t you – maybe a case of mistaken identity – the charges may be dismissed.
The entire criminal justice process in a nutshell
That’s it. We have just reviewed the process of the criminal justice system. There’s an arrest … then bail … then your first day of court … then the indictment … then discovery … then plea bargaining … and then, if you so choose, a trial. Or, based on circumstances, you can qualify for diversionary options or could have your charges dismissed completely.
To maneuver through the criminal justice process, it is best to find a local attorney, one you can really get to know. If you have questions for me, call my number, even if you’re in another jurisdiction. I’m here to help