If you or a loved one has been arrested or charged with a crime there are steps and procedures that you can expect to face in the process. This page gives a basic overview of some of the basic aspects of 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.
Often times a criminal case begins when a person is arrested. An arrest is defined in the Indiana Code as "the taking of a person into custody that he may be held to answer for a crime". An arrest can take place when a law enforcement officer has probable cause to believe that a person has committed a felony or when the officer has observed what he or she believes to have been a misdemeanor committed in his or her presence. An arrest can also be made after a court issues an arrest warrant. A person who is arrested has the right to consult with an attorney prior to answering any questions or providing any information to the arresting officer or other law enforcement officials.
Some persons facing arrest may believe that the time of his or her arrest may be an opportunity to explain his or her side of the story or to clear up some perceived misunderstanding or mistaken belief of the arresting officers. In most cases, however, it is usually in an arrested person's best interest not to make a statement until he or she has had an opportunity to consult with an attorney.
Although a law enforcement officer has the power to make an arrest, being arrested does not necessarily mean a person has been charged with a crime. In Indiana, criminal charges are filed by the prosecuting attorney, most often through a document called an Information. The mere fact that a law enforcement officer has informed a suspect that he or she is being arrested for a particular offense does not preclude the prosecutor from filing a different charge that the prosecutor determines is supported by the facts. The prosecutor has wide discretion to determine when probable cause exists to bring charges and to determine what charges to file, if any, in a particular case.
Although not required in Indiana, charges can also be brought through the use of a grand jury. When a grand jury is empaneled the prosecuting attorney presents evidence of an alleged crime or crimes to them and the jury then votes on whether a crime should be charged. A criminal charge issued by a grand jury is called an Indictment.
If formal charges are filed prior to a defendant being arrested, the State can ask the court to issue an arrest warrant for the defendant on the charges, allowing law enforcement officers to locate and arrest the defendant. To issue an arrest warrant the court must make a determination that probable cause for the charge exists. An arrest is not required, however. The State may instead request that a summons be issued, advising the defendant, generally by mail, of the charge and ordering him to appear in court on a specific date.
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. This first appearance is known as an "initial hearing". 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.
Despite this requirement, in most instances, a failure to schedule an initial hearing within the time limit will not result in a dismissal of the charges and would not invalidate a later conviction. It is at the hearing that a defendant will be informed of the charge or charges against him and advised of his rights as a defendant. If he or she does not have an attorney, the court will generally inquire as to his or her intention to hire an attorney and will advise him of his right to have an attorney appointed if he cannot afford to hire private counsel. If the defendant expresses an inability to hire a lawyer, the court will inquire as to his or her financial status and determine if a public defender should be appointed. If the defendant expresses an intent to hire a lawyer, the court will generally set a time limit of 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 close to a trial date or other important court date, the court in many cases will not continue 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 the defendant's behalf. Some courts will permit a defendant to plead guilty as his initial hearing. However, it is not generally advisable to do so, since the defendant may not have an attorney to advise him and even if he does, the attorney will not have been able to evaluate the case. Some defendants may be concerned that entering a "not guilty" plea will be used against them later or make them look somehow dishonest if they should choose later to admit their guilt and plead guilty. This is not the case.
Entering a not guilty plea at an initial hearing will not affect one's ability to later plead guilty should that become necessary. It is almost always in a defendant's 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, has an attorney and his attorney filed a written waiver of the initial hearing.
For all criminal charges except murder, a person arrested in Indiana has a right to bail. In many counties in Indiana, there is a bail schedule, which is used, particularly for less serious charges, to establish the standard amount of bail for a particular charge. In those instances a person arrested can often post bail based on the bond schedule either through the sheriff or the clerk's office before his or her initial hearing has even occurred. In other instances, the court will set the amount of bail at the initial hearing. If a person is arrested while on probation, Indiana law allows the person to be held for up to fifteen (15) days without bail (often referred to as a "15-day hold") to allow time for a probation violation to be considered. Once the 15 days is over the court must set bail on the new case, although if a probation violation is filed, Indiana law allows a person to be held without bail on that violation.
Bail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the safety of another individual or the community. A court will look at several factors in determining bail including the seriousness of the charges and factors which could make the defendant a flight risk such as a lack of ties to the community or prior cases where he or she failed to appear for court. If the court determines that an arrested person is of minimal risk, the court may release him on his "own recognizance", sometimes referred to as being "O.R.ed". This means the person is released on his promise to return as ordered, without requiring him to post a bond.
A bond is essentially something of value that is pledged as collateral against the defendant's return to court as ordered. If the defendant posts bond and later fails to appear, the bond can be forfeited. Indiana courts generally allow bonds to be posted in any of three ways: a cash bond, a surety bond and/or a property bond. A cash bond is just that, an amount of cash submitted to the court in the amount of the bond.
Some courts require that the entire amount be submitted to the court, sometimes referred to as a cash-only bond or full cash bail. The advantage of cash bail is that at the conclusion of the case, regardless of the outcome (assuming that the defendant appeared as ordered), the cash will be returned to the person that posted it. It can also be used to pay court costs and fines at the conclusion of the case should they be levied. Some courts allow a defendant to post a "cash bond" that is equal to a percentage, such as 10%, of the total amount of the bail. The type of bond has the advantage of being returned at the end of the case and being a more reasonable amount of cash to come up with for bail. However, not all courts allow cash bonds to be posted in this way.
A surety bond is one that is posted by a bail bondsman. For a surety bond, the defendant pays a percentage of the total bond (usually 10%) to the bondsman. The bondsman then posts the entire amount with the court for the defendant's release. The advantage of a surety bond is that it allows a defendant to post a bond for a small percentage of the total bond. The disadvantage is that the money paid to the bondsman is his fee and is not returned at the close of the case as is a cash bond. If a person posting a surety bond fails to appear, the bail bondsman is authorized to locate and apprehend the defendant and return him to the court. Not all counties allow surety bonds.
A property bond is one in which the court allows a bond to be secured by the value of real estate owned by the defendant or another person posting the bond on his behalf. A property bond is essentially a lien on the real property which makes it subject to forfeiture if the defendant fails to appear. To post a property bond the poster must be able to establish ownership of the property, as well as the value of the property less encumbrances. Not all courts allow the posting of a property bond.
In addition to a bond, the court can also place other restrictions on the defendant as a condition of pretrial release. These conditions can include periodic reporting to the court or a pretrial release officer, drug testing, or restrictions on travel.
Once the amount of bail has been set, a defendant may ask the court to review the amount of the bail. His or her attorney can file a written motion with the court for a "bond reduction". If the defendant can make a showing of good cause as to why the amount of bail is excessive the court can order the amount of the bail reduced.
This is only a brief overview of what a person can expect when arrested and charged with a criminal offense in Indiana. For an overview of the typical proceedings involved in a criminal case, Click Here.