If you or a loved one has been arrested and/or charged with a crime, it is time to contact a dedicated criminal defense attorney. Dealing with a criminal case can be confusing and intimidating. While some cases resolve quickly, others can stretch on for years. Although the process varies from case to case, the following is a basic “timeline” of what you can expect during a typical criminal case.
To make an arrest, police officers must have probable cause. Police officers commonly find probable cause to arrest in two situations. The first occurs when an arrest warrant is issued, and the second, when officers witness someone commit a crime. A person does not have to be in handcuffs to be considered under arrest. A person is legally under arrest the moment they no longer feel free to leave the presence of police officers. At this point in time, ask the police if you are free to leave. If the officer says no, you are considered to be in custody and under arrest. Police custody, triggers an individual’s Miranda rights. The police must inform the individual of their Miranda rights if the police intend to ask any questions. Miranda rights include the right to an attorney and the right to remain silent. You must clearly and politely inform the officer that you do not wish to speak with them without your attorney present. Generally, the police can hold someone for questioning until enough evidence if gather to charge the individual with a crime. This can last up to 48 hours. If there is enough evidence gathered to charge someone with the crime, this individual will be taken to bond court.
Cook County Central Bond Court starts at 12:00 PM, 7 days a week. Suburban districts bond court usually begins at 9:00 AM. The defendant usually spends about 30 seconds in front of the judge. During this brief hearing, the defense attorney must quickly and efficiently inform the judge of mitigating circumstances which can lower the defendant’s bond. Depending on the defendant’s background and the seriousness of the crime, the judge will set a bond amount he or she feels will ensure the defendant’s appearance in court. There are three types of bond available to judges in Illinois. If it is the defendant’s first arrest and a non-violent crime, the judge will often give an “I bond.” Under an “I bond”, defendant does not have to post cash to be released while the case is pending. However, under an “I bond”, if the defendant fails to appear for the next court date, a warrant will be issued for his or her arrest. If the crime is more serious or if the defendant has prior arrests, the judge will likely set a “D” or a “C bond.” If the judge orders a “D” bond, 10% of the bond amount must be paid for the defendant to bond out (example: a $1,000 “D bond” would require $100 to post defendant’s bond). A “cash bond” requires the full amount of the bond be posted in order for defendant to bond out. For information on bonding someone out of Cook County, visit the Sheriff’s website: http://www.cookcountysheriff.com/. Once the defendant’s case is resolved, the bond money is returned, as long as the defendant appeared in court. The bond will either be returned to the person who originally posted it, or it can be used to pay the criminal defense attorney. However, for “D bonds”, Cook County keeps 10%. Thus, if $1,000 was posted, only $900 would be returned.
If the defendant is arrested for a felony offense, either a grand jury indictment or a preliminary hearing is required to formally charge the defendant for the crime. Once charged, either by information or indictment, the defendant will be given a future court date. On that date, the defendant will be assigned a judge for arraignment.
A preliminary hearing occurs when the prosecution shows the judge that a crime was likely committed and the defendant was probably the one that committed the crime. During the preliminary hearing, sometimes referred to as a probable cause hearing, the judge generally hears only the testimony of the arresting officer. The purpose is to determine if there is enough evidence to proceed with prosecuting the defendant. The purpose of the preliminary/probable cause hearing is not to determine the defendant’s innocence or guilt. Unlike a trial, hearsay is admissible during a preliminary hearing. If the judge finds probable cause, the defendant is then charged with the crime by “an information.”
Unlike preliminary hearings, grand jury proceedings are held in secret with no judge present. Defendants and their attorneys are also not permitted to attend grand jury proceedings. Instead of the judge (like in a preliminary hearing) the jurors determine if there is probable cause that a crime was committed and that the defendant committed that crime. After hearing the prosecutor’s evidence, the grand jury votes on whether the State has presented enough evidence to formally charge the defendant. When an individual is “indicted,” it means the defendant is charged by a grand jury.
In Cook County, the arraignment is usually the defendant’s first day in front of their assigned judge for the pendency of the case. During the arraignment, the judge advises the defendant of the charges against him or her, as well as the potential penalties associated with the charges. At this time, the defense attorney enters a plea of “not guilty” on the defendant’s behalf and files a motion for discovery.
Upon filing a motion for discovery, prosecutors must provide the criminal defense attorney with copies of any and all police reports, statements from alleged victims and witnesses, and any physical evidence that they intend to use against the defendant. Depending on the complexity of the crime and the type of evidence, discovery can take months to complete. In some cases, prosecutors must order scientific evidence, such as DNA evidence or lab reports. Once discovery is complete, the defense attorney can review the State’s evidence and discuss with the client whether or not the defendant should take the case to trial. Depending on the evidence and the strength of the prosecution’s case, the best solution is a plea agreement between the defense attorney and the prosecutor. Pleas vary greatly from case to case, and depend on several factors, including the seriousness of the crime and the strength of the prosecution’s evidence.
If the defendant decides he or she does not wish to plead guilty, the defense attorney will file necessary pretrial motions. Pre-trial motions address the evidence that may be presented at trial, including motions to dismiss illegal evidence. Also at this stage of the case, the defendant must decide whether he or she wants a bench or a jury trial. During a bench trial, only the judge hears the evidence and the judge determines whether the defendant is guilty or not guilty. This differs from a jury trial where twelve (12) citizens of Cook County are selected by both the prosecutors and criminal defense attorney. If the defendant desires a jury trial, the jury decides the outcome. In either case, the criminal defense attorney must understand how to present the defendant’s case and persuade a judge or jury that the defendant is not guilty. At trial, both sides take turns presenting evidence and questioning witnesses. At this stage, it is the state’s attorney’s burden to prove the defendant is guilty beyond a reasonable doubt. This is an enormous burden. A defendant does not have to prove their innocence. If the defendant is found not guilty, the case is over and can likely be expunged from the defendant’s record. However if found guilty, the judge will either sentence the defendant immediately after the trial, or set a date for sentencing.
If the defendant is found guilty of a crime at trial or after a plea, the judge then imposes a sentence. In some cases, a sentence is a period of supervision and a fine. In other cases, the sentence may require a period of incarceration. Depending on the crime, judges may also sentence a defendant to probation, treatment class, community service and/or pay restitution to victims. The defense attorney can prepare a pre-sentencing report and argue for a sentence lower than the sentence recommended by the prosecutor. When a defendant is found guilty of a misdemeanor, sentencing usually occurs immediately. However, for serious felonies, sentencing is typically continued to allow both the defense attorney and the prosecutor time to prepare their arguments. The defense attorney examines all factors a judge may consider in lowering a defendant’s sentence including, but not limited to: the defendant’s background, age, work history, seriousness of the crime and the effect the crime had on victims.
If there was a legal error that caused the defendant to be convicted and/or wrongly sentenced, the defendant has the right to appeal. Successful appeals are very rare and can take years as well as substantial financial resources to pursue.
Some cases are eligible for expungement/sealing as long as the defendant was found not guilty or the case was dismissed. Also, a charge may be eligible for expungement if the defendant received supervision or a certain type of probation. Whether or not an arrest or charge can be expunged or sealed depends on several factors, including but not limited to: defendant’s background, the type of crime, and sentence imposed.