The Legal Process
- The Complaint Is Filed
- Suspect Arrested
- Bail is Set
- Case Goes to Grand Jury
- Court Date Set
- Subpoenas Issued
- Trial Begins
- Judgment and Sentencing
Arrest and Pre-Trial
How is an arrest made?
Normally, before an arrest can be made, a complaint must be filed charging a specific person with violation of a criminal law. A complaint is a sworn document made by someone who knows the facts of the crime by either direct knowledge or through investigation. Once this is done, the peace officer can then obtain an arrest warrant. A warrant of arrest is an order signed by a judge, authorizing a peace officer to arrest a person accused of committing a crime.
What happens to the accused?
Soon after the arrest, the accused (now called the defendant) is taken before a judge who explains the charges contained in the complaint. The judge is required to set an amount of bail and advise the defendant of his rights. The sole legal purpose of bail is to guarantee the defendant's appearance in court for later proceedings. It is allowed in virtually all cases, including felonies.
In setting the amount of bail, the judge is required to consider not only the seriousness of the offense, but also the defendant's ability to raise the necessary money. If the defendant cannot post the bail, he remains in custody and is normally transferred to the county jail to await further action in the case. Bail may not be set so high to punish a defendant by keeping him in jail pending his trial.
How does my case get to your office for prosecution?
The local law enforcement agency investigating your case will present it to our office upon completion of their investigation. We will "screen" the case to determine if there is sufficient evidence to prove that an offense was committed and that the person accused actually committed the crime. After a case is accepted by our office, the arrest is made and bail is set, the case is presented to the Grand Jury for indictment.
What does a Grand Jury Do?
Texas law requires action by the grand jury before a felony case can be filed in district court. If the grand jury believes that there is sufficient evidence to prove that a person has committed a felony) it votes to issue a "true bill") or indictment. At least nine grand jurors must vote in favor of an indictment, or the case is "no-billed" or terminated. The prosecutor assists the grand jury; but, the actual deliberations on cases are secret. Only the grand jurors are present when voting is in progress.
What is a Pre-Trial Hearing?
After the criminal case has been filed, the case will be scheduled for a pre-trial setting. At this hearing, the defense attorney usually advises the judge whether the defendant wants a trial or will plead guilty. If a trial is desired, the defense will notify the judge if a jury is required. Certain motions concerning legal issues may also be heard at this time. If your presence is required, you will be notified in advance. To keep you informed of the progress of the case, you will be notified of any court setting; however, you will not always be required to appear.
When The Case Goes To Trial
The prosecutor presents the case for the State, attempting to prove beyond a reasonable doubt that the defendant committed the crimes charged. The defendant may present his or her side of the case or no case at all. The jury (if there is one) or the judge must decide whether the State's case has been proven by legally-competent evidence.
Judgment, Sentencing and Appeal
If the defendant is found guilty, a second phase of the trial begins at which time the punishment is set within the range authorized by law. The defendant may choose whether he wants his punishment set by the judge or a jury. Many judges rely on the probation department to prepare sentencing investigation and recommendations.
Following a conviction, the defendant has a right to appeal to higher court for review on points of error in procedure or application of the law at the trial. At this stage of the process, there is generally little victim or witness involvement.
Why Cases May Not Go To Trial
- If the prosecutor determines that there is not sufficient evidence to obtain a conviction, he may file a motion asking to dismiss the case; this is only done after a thorough investigation and normally after police have exhausted all avenues for obtaining additional evidence. The judge will grant the motion to dismiss if he is satisfied that the case cannot be proven at trial.
- A defendant may choose to plead guilty and may not want a trial. In this case, the judge would impose a sentence immediately or at a separate hearing.
- The prosecution and the defense may decide to negotiate a plea in the case. The negotiated plea is basically an agreement between the attorney representing the State and the defendant and his attorney. It acknowledges that the State will recommend a specific punishment if the defendant will enter a guilty plea. There are advantages to both the State and the defendant in reaching such an agreement. The agreement is not binding upon the judge, who may impose any punishment within the range authorized by law.
- Our goal in negotiating a plea is to achieve a sentence similar to what a jury would likely do under the circumstances. If you have any questions regarding this process, contact the prosecutor handling your case.
The Role Of The Witness
Should I talk to an Investigator or Defense Attorney about the case?
The defense attorney or his investigator is performing a legal duty by investigating the case. If the defendant is indigent, the attorney and investigator may be appointed by the court; however, they are not working for the judge. You are free to discuss or refuse to discuss the case with the defense attorney or anyone employed by the defense. We are available and willing to assist you should you decide to discuss the case with the defense. Require anyone who claims to be investigating the case to show identification. If you have any concerns, feel free to call our office before you discuss the case with anyone.
How are witnesses called for trial?
Witnesses receive a subpoena which tells them when and where to appear, and what if anything, to bring with them. Occasionally witnesses feel offended by being "ordered" to appear in court. The law provides that we cannot have a case postponed, despite the illness or incapacitation of a witness, unless that witness has been served a subpoena. Therefore, subpoenas are actually issued to protect our case.
Our office will attempt to notify witnesses well in advance of the subpoena being issued.
After receiving a subpoena, please check with our office before going to court. This may prevent an unnecessary trip in case of a last minute change in the trial schedule.
What do I do at the Trial?
Our office will usually schedule a conference with witnesses prior to their court appearance to discuss the trial procedure. When you are called to testify, you will he questioned by the prosecutor and then "cross-examined" by the defense attorney. During cross-examination, you may feel that your motives for testifying are under attack, but the process is not meant to demean you. The defense attorney is charged by law with representing his client to the best of his ability and this can involve close scrutiny of your testimony. When preparing to appear in court, please remember;
- The truth of your testimony, the manner in which you give it and your appearance on the stand will all be considered by the jury or judge deciding the case.
- Your manner of dress may have an impact on jurors who hear your testimony. Therefore, dress neatly and conservatively when appearing in court.
- You should not feel intimidated by the defense attorney's cross-examination, but remember that your only obligation is to tell the truth,
Can I be compensated for being a witness?
As a general rule, no. If the witness is from outside the state or the county in which the trial is held, travel expenses and a per diem may be allowed.
When can I have my property back?
Property which has been stolen can often be returned to the owner prior to the trial. Sometimes this cannot be done --particularly if the property is currency or when it directly identifies the accused (e.g., by fingerprints).
To determine if the property can be returned to you prior to the trial, contact the police agency that investigated the case. They will furnish our office with documentation of ownership and the necessary affidavits to obtain a court order to restore the property to you. If your property must be held until trial, and/or received into court as evidence, it can usually be restored when the trial is over.