Dayton Criminal Defense Lawyer: Criminal Process for Felonies

Arrest or Indictment

In Ohio a felony case can begin in one of two ways. Either the police can arrest a person if they have probable cause to believe that the person has committed a felony. After the arrest, the person must be brought before a Magistrate immediately and given the opportunity to post a bond allowing them to be free while the charge is pending.

The second way a felony case can begin is through what is called an indictment. An indictment is issued by the grand jury. A grand jury sits for a specified term in every county in Ohio. The grand jury hears evidence presented by the prosecutor and decides whether or not there is probable cause to charge someone with a crime. It is important to note that the grand jury is a secret proceeding and controlled completely by the prosecutor. The defense is not allowed to present evidence and the standard to issue an indictment i.e. probable cause is extremely low. The fact that someone is indicted does not mean that they will be convicted of the charge or are even guilty of the charge. It is merely formal notice of the charge.

Once the indictment is issued, a person may be served in one of two ways with it. If a warrant issues on the indictment, the police will come and arrest the individual. Alternatively, the indictment can be served by mail requiring the person to appear in court for what is called an arraignment. Often times an individual will be arrested, have an initial appearance in a lower court and then the matter will be turned over to the grand jury to determine whether the person should be indicted. If you have been arrested, but an indictment has not been issued this is a very important time to secure the services of an attorney. Negotiating a criminal matter through your attorney with the prosecution prior to the issuing of an indictment, can often lead to a successful resolution of the charges before they have even been formally made.

Preliminary Hearing

On certain occasions and within ten days of an arrest the matter may be set for what is called a preliminary hearing. This hearing comes before the indictment and after arrest and is held in the municipal court of the town or city in which the alleged crime occurred. The prosecution must present evidence showing a judge that there is probable cause to continue to hold a person. If the judge finds there is probable cause he can “bind over” the person, having them continue to be held until a grand jury has an opportunity to hear the matter. If you are scheduled for a preliminary hearing this is also the time in which you should secure the services of an attorney. A preliminary hearing is the first opportunity for your attorney to elicit the evidence and information that the prosecution claims to have against you.

Arraignment

After a person is formally charged by an indictment, the first court appearance and initial proceeding is called an arraignment. This is simply the opportunity for the court to assure that the person has been advised of the charges against them and the opportunity is given to the person to enter a not guilty plea to the charges. If a person has not secured the services of an attorney or cannot afford the services of an attorney, they should advise the court at that time that they will either be acquiring an attorney or they need to have a public defender appointed to their case.

Pretrial Hearing, Pretrial Discovery, and Pretrial Litigation

After the arraignment it is time to begin preparing for the defense of the case. Your attorney will engage in what is called discovery requests, demanding that the prosecution turn over all of its evidence along with any statements made by witnesses or by you. If necessary an independent investigation should be conducted. At our office, we have a private investigator available to us at all times to assist in an independent witness interview, collection of physical evidence, or any other investigative process.

In addition to discovery, it is important to begin to lay the strategic foundation for the possibility of going to trial. This is generally done through pretrial motions, which require litigation and court hearings. Most commonly these motions include motions to challenge the evidence against you and its admissibility at trial. These are called “motions to suppress” and they require hearings in which the state must prove that it had legitimate grounds to arrest a person and to collect the evidence against them. Not only are these motions important to pin down the government’s case against you, but if it can be demonstrated that the government did not follow the proper procedures, the case against you can be dismissed. Additionally, if there have been any technical defects in the presentation of charges, your attorney should examine this and request that the court dismiss the charges.

Lastly, during this stage of the proceedings negotiations will occur between the prosecution and your attorney. Your attorney should keep you well informed and meet with you regularly to discuss how those negotiations are proceeding. It is possible to work out what is called a plea bargain or plea agreement, so long as it is beneficial to your interests and provides a greater chance of success than actually going to trial.

Trial

If an agreement cannot be reached then the only option may be to take the case to trial. The decision to go to trial should be carefully weighted with your attorney. Your attorney should advise you fully of the possible consequences, outcome, defenses, and likelihood of success. If ultimately a decision is made that taking the case to trial is the best chance for a positive outcome, your attorney should work with you to carefully prepare for the presentation of the case. This will include things like preparing you for the possibility of testifying, advising you of the witnesses that will testify and explaining to you the approach or defense strategy that will be used. At our office we devote a great deal of time to trial preparation and it is not unusual for us to meet on a daily basis with the client in the days leading up to trial.

The trial procedure starts with selecting a jury. In a felony case that will include twelve people selected from a group of people that live in the county where the case occurred. During the selection process the attorney will be questioning the jury to fully insure that they can be fair and impartial in your case. This process is called “voire dire”.

After jury selection is made opening statements begin. Each side, beginning with the prosecution is allowed to outline what they think the evidence will be. A strong opening statement is important to persuade the jury, before the case even begins, that the defendant is not guilty.

After opening statements, evidence is then presented. First, the prosecution presents its case. After the prosecution’s evidence is presented often a defense attorney will attempt to have the case dismissed, for failure of the prosecution to prove one or more elements of the charges. If that request is denied the defense will then present its evidence. At the close of the defense evidence the prosecution is given an opportunity to present its rebuttal evidence. The prosecution gets to go last, at all times, because the prosecution carries the burden of proving the charges toward a criminal defendant.

At the conclusion of rebuttal each lawyer is given the opportunity for a closing argument. This is the opportunity for the defense attorney to argue directly to the jury, the reasons why they should acquit. The jury is then instructed by the judge on all the laws and then deliberates, ultimately, rendering a verdict.