Being charged with a crime is one of the most serious matters any of us can face. Even persons who have gone through the criminal justice system before can find the charges, the various motions and procedures, and the various court appearances to be confusing and sometimes frightening. For a person facing the system for the first time, the situation may at times seem overwhelming. It is important to know what to expect as your case moves forward. The following is a basic overview of some of the steps that can occur in a criminal case in Indiana state courts. Keep in mind that this information is general in nature and may or may not apply to any specific case or situation and should not be construed as legal advice.
When a person is charged with a criminal offense in Indiana, his or her first appearance in court is called an "Initial Hearing". Indiana Code 35-33-7-1 requires that an arrested person be taken "promptly" before a judicial officer in the county where the arrest is made or where the venue for the case is presumed to be. The statute does not define "promptly", but most courts have said that an initial hearing within 48 hours is reasonable, although longer periods (such as over a weekend or a holiday) have been approved as well. For a person who has posted a bond prior to his initial hearing, the statute provides that an initial hearing be scheduled within 20 days of his arrest. It is at the initial hearing that you will be informed of the charge or charges against you and advised of your rights as a defendant.
If you do not have an attorney, the court will generally inquire as to your intention to hire an attorney and will advise you of your right to have an attorney appointed if you cannot afford to hire private counsel. If you express an inability to hire a lawyer, the court will inquire as to your financial status and determine if a public defender should be appointed. If you express an intent to hire a lawyer, the court will generally set a time limit for an attorney to be hired. Keep in mind that even when a public defender is appointed, a defendant can still hire counsel of his or her choosing at a later date if financially able to do so. The court cannot prevent a defendant from hiring counsel of his choosing, although if a case is close to a trial date or other important court date, the court in many cases will not delay the trial or other court dates to allow a new lawyer to prepare.
In most cases, a preliminary plea of not guilty is entered on your behalf at the initial hearing. Some courts will permit a defendant to plead guilty at his or her initial hearing. However, it is not generally advisable to do so, since you may not yet have an attorney to advise you and even if you do, the attorney will not have been able to properly evaluate the case. You may be concerned that entering a "not guilty" plea will be used against you later or make you look somehow dishonest if you should choose later to admit your guilt and plead guilty. This is not the case. Entering a not guilty plea will not affect one's ability to later plead guilty should that become necessary.
It is almost always in your best interest to enter a not guilty plea at the initial hearing and allow time for the charges and the evidence to be evaluated. In many instances, an initial hearing on a misdemeanor charge can be waived if the defendant is not in custody and his attorney has filed a written waiver of the initial hearing. If a waiver is granted the defendant will not have to appear for an initial hearing and additional court dates will be scheduled and the dates provided to you and your attorney.
Once your attorney enters an appearance on your behalf, he or she will request from the prosecutor a list of witnesses, copies of any and all police reports, statements from any alleged victims and witnesses, and any physical evidence that the State intends to use against you. This evidence is known as "Discovery". Indiana law requires that the prosecutor provides in discovery any evidence that the State intends to use against you at trial. The prosecution is also required to turn over any evidence it is aware of which is "exculpatory" or favorable to the defendant. In addition, Indiana law provides that the Defendant's attorney can take a statement from any potential witness in the case, under oath and recorded by a court reporter.
Such a statement is known as a "Deposition", and although not used in every case, it can be a valuable tool for preparing your defense. The defense is also required to provide a witness list and other discovery to the State prior to trial as well.
In addition to reviewing the discovery provided by the State, many cases require that additional evidence be gathered that will assist with the defense of your case. This can include locating and interviewing potential witnesses, taking photographs, gathering potential evidence, and submitting evidence to experts for evaluation and testing.
In some cases, a good defense is not based upon what the State can prove at trial, but instead, is based upon determining what evidence will be admissible at trial. For example, in some cases evidence that was obtained through an illegal search can be suppressed; that is, not allowed to be used in court against you. It may also be to your advantage to have your trial separated from a co-defendant or to ask for a change of venue if circumstances make finding an impartial jury difficult. These matters are addressed through the filing of pre-trial motions. An experienced criminal defense attorney knows when it is appropriate to file pre-trial motions and will fight to ensure that your Constitutional Rights are protected and that you are treated fairly.
In some cases, a defendant's best course of action is to negotiate an agreement to plead guilty to the charge, or to some lesser charge. The circumstances may be such that it is not in your best interest to go to trial. It is important to have an experienced criminal defense lawyer that can explain the case to you and explain your options. An experienced lawyer can also negotiate on your behalf with the prosecutor, putting you in a position to have the best possible outcome.
Although not every case goes to trial, a good criminal defense lawyer should prepare for a trial in every case. Some trials can be presented to the judge to decide. This is called a "bench trial". Others are presented before a jury. This is the part of a criminal case that most of us think about when we think of criminal law. You should have a criminal defense attorney with extensive jury trial experience that is able and ready to defend your case at trial when necessary.
Sometimes, despite an attorney's best efforts, charges can result in convictions. Your attorney's job is not done, however. He or she will aggressively argue for a sentence that can be substantially lower than the sentence the State requests. Your lawyer's efforts can result in a shorter term of incarceration, an alternative to incarceration such as work release or home detention, or even a suspended sentence or probation in some cases.
Even after trial and sentencing, your attorney's job may not be done. If you are convicted after a trial, you have the right to appeal. That is, you may have your case reviewed by a higher court. Successful appeals in criminal cases are not common. When they are successful, however, you may be entitled to a new trial, or you may be set free.
If you or a loved one has been arrested it is important to get an experienced criminal defense lawyer working on your case and fight for you as quickly as possible. Contact the experienced criminal defense law firm of Ross G. Thomas today. There is no charge for initial consultations. The Law Office of Ross G. Thomas provides experienced legal representation to persons charged with serious crimes in state and federal courts throughout Indiana. If you are accused of a crime, you need a lawyer that will stand up for your rights.