FAQs

CLIENTS WHO HAVE BEEN CHARGED IN A FELONY CASE

By: Thomas E. Royals
Revised 3/06/06

This paper is intended to help you and your family understand what will happen when someone is charged or threatened with a criminal charge. Criminal charges can be brought in several different ways.

1. There may be a pre-arrest investigation which could involve law enforcement officers or investigators talking to your friends and acquaintances and attempted questioning of you, a search of your home, car, person, or searches of others. You should never talk to anyone about the facts of your case unless your lawyer is present. This includes friends, relatives and family, as well as law enforcement.

2. After the arrest, if any, (assuming the case has not been presented directly to the grand jury), you may be looking at posting bail. Bail can be posted basically in three ways:

a. Through a bail bondsman which requires a 10% payment;

b. Posting of a cash "first offender's" bond, which requires posting of 10% of the face amount of the bond;

c. Posting of real estate (property) bond, which requires two property owners to sign forms pledging their property to guarantee the court appearance. The properties posted must be worth the face amount of the bond above anything owed on the land or house and land.

In the case of the bail bondsman, you get nothing back. In the case of a cash bond, you get most of it back. In the case of a property bond, the property is released upon successful court appearances and final disposition of the case. You will be charged 2% of the bond money.

These procedures vary from place to place to some degree.

3. You may get a preliminary hearing before indictment of your case. Some lawyers try and get preliminary hearings in all cases. Other attorneys feel that preliminary hearings are not critical in view of modern day rules of discovery. This is something we look at on a case by case basis. The law is unclear at the present time about whether you are always entitled to a preliminary hearing.

4. Plea bargaining: I know you have heard of plea bargaining. However, in some cases a plea bargain may never be discussed.. A plea bargain can be struck at any time both sides agree.

5. Grand Jury: If your case if not otherwise resolved could be presented to the grand jury. The only way you can be charged with a felony and brought to trial (with some exceptions), is by the grand jury. It is necessary for the prosecutor to present your case to the grand jury if he or she wishes to obtain an indictment, except in rare situations which will be explained to you, if necessary. Only the prosecutor and the prosecution witnesses show up at the grand jury. The grand jury indicts almost every case that is presented, unless the prosecutor for some reason does not want it to be indicted. While there is some opportunity for you and your witnesses to appear before the grand jury, this is generally inadvisable and is rarely done.

6. Arraignment: If you are indicted by the grand jury, a warrant is issued for your arrest. Most of the time, the prosecutor or law enforcement will call you, your bail bondsman, or your attorney and let you know that you need to appear for an arraignment. This requires the signing of papers or pleading not guilty before a judge. In some serious cases, such as murder, capital murder, and certain other felony cases, an arraignment must be held in front of a judge. In those instances, you have a right to have someone read the indictment in open court. Bail may also be discussed at this stage.

7. Discovery: After your arraignment, your attorney will ask for a copy of the evidence to be used against you from the prosecuting authorities. This may be done with a motion or simply by a letter or by a court order. You are entitled to read this discovery and to look at all things such as pictures, weapons and evidence that may be used against you.

The discovery, along with the indictment, investigation of the case, and interview of witnesses, view of the scene, legal research, and so forth will give your attorney a good idea of what the prosecuting authorities will be able to prove. Once we know what the prosecutor intends to prove, we are in a much better position to evaluate your case and to be able to seek out witnesses to disprove or verify, as the case may be, the state's position. To intelligently defend a case, you must know the strengths as well as see the weaknesses of the other side. Every case has two sides.

8. Guilty Plea: If your case is settled (by agreeing to a plea), your attorney will prepare you for the guilty plea and sentencing. Cases are never settled without your knowledge, understanding and agreement.

9. Continuances: For many reasons, your trial may be continued one or more times. Continuances usually result from scheduling conflicts of your attorney, witnesses, the prosecutor, or the court. Continuances can occur at the last minute. In some cases, your attorney will request or agree to a continuance because postponement of the case could be in your best interest. Your attorney will discuss this with you. This process may last a long time with intervals of just waiting.

10. Trial: If your case is not settled or dismissed, you will go to trial. You should cooperate with your attorney to be sure that all of your witnesses have been interviewed and subpoenaed. Provide names, addresses and phone numbers of your witnesses early. You should also urge your attorney to talk to all witnesses, if possible, that have been subpoenaed or that may be used by the prosecuting authorities. Sometimes prosecution witnesses will refuse to talk to you or your attorney. However, an attempt should be made to interview all witnesses.

You should read the jury instructions and the law of the case that your attorney has prepared and researched and be familiar with the expected testimony that may be given by both sides. That way, you will be able to have a better grasp of your chances of success at the trial. Also, you will be prepared to help your lawyer make decisions before, during, and after trial.

11. Procedure at Trial: Generally speaking, the judge will question the jurors to determine if they are fair and qualified. Then the prosecutor will question the jurors for the same reason and then your attorney will question the jurors for the same reason. The attorneys may ask the court to dismiss jurors who obviously cannot be fair in the case at hand. The prosecutor and your attorney will be able to dismiss some jurors based on feelings that they will not be good in your case.

The prosecutor will make an opening statement and then the defense attorney will make an opening statement. The prosecutor puts on its case first and the defense attorney gets to cross-examine all of the prosecutor's witnesses. When the prosecutor rests, the defendant will put on his or her witnesses, if any and they are subject to cross-examination by the prosecutor. Experienced defense attorneys tend in many cases to put on fewer rather than more witnesses. The reason is that your witnesses will be cross-examined. Sometimes a very truthful witness can be torn down by a skillful prosecutor on cross examination. Only helpful witnesses who can be strong are used by a good defense lawyer.

12. The defendant as a witness: One of the hardest decisions for a defendant and an attorney to make is whether the defendant should testify. Experienced trial attorneys worry about this decision a lot. Just because the defendant may be telling the truth does not mean the defendant should take the witness stand. Sometimes a very truthful defendant can be made to look like a liar by a skillful cross-examiner. There are other reasons for a defendant not to testify. Some people tend to make good witnesses and others do not. This decision will be made by you, your attorneys, and perhaps family and friends. Because the State has the burden of proving the case beyond a reasonable doubt, the defendant does not have to testify and cannot be forced to do so.

Of course, if you are acquitted, everybody goes home and the matter is over. If you are convicted, you may wish to file an appeal, if there are sufficient errors of law or fact in the record. Contrary to what most people believe, the case is not “re-tried” at the appeal level. The appellate court only looks at the record of the trial and hears written and/or oral arguments on the law and the facts, as seen in the transcript of the trial. No appellate court in a felony case re-hears the evidence and replaces the finding of the jury, if the finding of the jury is otherwise legally and factually sound. The appellate court hardly ever reverses a case because the jury decided the wrong way on disputed facts. Cases that are reversed are usually reversed for mistakes of law, that is, because the judge ruled the wrong way on a question of law or evidence.

13. Who will be working on your case? The lawyer you initially hire will be the person who will oversee and take the lead in your case. However, do not be upset if other lawyers or legal assistants work on your case. For instance, the lawyer who is in charge of your case may ask assistance from other lawyers in the preparation and trial of your case. You can think of it like a doctor who is doing surgery. The doctor may use other doctors, nurses, paramedics, and other personnel to complete the surgery. In our law firm, we are very busy and we sometimes rely on other lawyers, a paralegal or legal advisor, an investigator, or a secretary to help us out with certain matters. This does not mean the lead attorney is not handling your case. He or she will always know what is going on and will appear at all critical hearings. 

14. Are you happy with the lawyer you have chosen? Never believe a lawyer who guarantees or promises you that he or she can accomplish certain results. Criminal defense litigation is very difficult and the outcome can be uncertain. Lawyers who guarantee you that the judge or the prosecutor will do certain things or will do something illegal are not being candid and should be avoided. We will never guarantee you a specific result, but will fight your case with experience and hard work.

15. Contact with the attorney. The best way to deal with your attorney is to make an appointment, write down the things you want to discuss, and discuss those things at the office. 

When you call an attorney at home, that attorney will not have your file on hand, and may not remember all of the facts necessary to discuss your case and answer your questions. We handle many cases at all times, as does any busy and successful lawyer. We ask that clients not call the attorney at home unless it is necessary and there is something we can do to help you at that time. 

Of course, there may be occasions that require calling the attorney at home. We will be happy to talk to you when these problems arise.

If you feel that you are not getting to spend enough time with your attorney, you should call your attorney at the office and express that feeling. In that event, a lengthy meeting will be quickly scheduled. We will spend all the time needed to help you.

16. Others talking to us about your case: We prefer to discuss your case with you only. However, there are occasions when family members with your permission need to talk to us about your case. We would appreciate it if you would designate someone in your family to talk with us and to communicate with other members of the family. We don't always recognize the voices of all of your family members and friends and we do not know whether we are authorized to talk with them. Also, messages get mixed up when we tell the same thing to several people and they start comparing what they think they heard. This is pretty much a waste of our time and could be damaging to your case. 

The criminal justice system, like life, is complicated and has surprises and unexpected events. No lawyer can guess every possible event that may occur and warn you in advance. However, we try diligently to let you know what is going on and what to expect at all times.

Of course, we do not expect this paper will answer all your questions, but it will help if you read it carefully.