| Chapter
8
Covering
Criminal Courts
By Maurice
Possley
Introduction
While the police reporter usually begins work after the commission
of a crime, the first contact that a courts reporter has with a
criminal case comes after, or simultaneous with, the filing of a charge.
Because the police and court beats frequently overlap, this chapter
will outline the steps leading from a charge to a final appeal
of a criminal case without covering territory explained in Chapter
1, on the crime beat.
Most cases are not resolved by a trial and most will fly under
the media radar. A 2004 U.S. Department of Justice study of felony
cases involving more than one million adults who were convicted
showed that 95 percent of the cases ended with a guilty plea. A
large number of the cases—63 percent—involved either
narcotics or property crimes. Violent crimes made up about 19 percent
of the cases, but murder cases (including manslaughter) made up
not quite one percent of the cases. (http://www.ojp.usdoj.gov/bjs/abstract/fssc02.htm)
There are three different ways that a suspect can be charged with
a crime and become a defendant in a criminal proceeding.
Arrest: A law enforcement agency, whether city
or town police, a county sheriff’s department, state police,
or a federal law enforcement authority such as the FBI, Drug Enforcement
Administration, or Bureau of Alcohol, Tobacco, Firearms and Explosives,
takes someone into custody and places him or her under arrest.
In many state and federal jurisdictions, a prosecutor will review
the evidence and approve or reject the filing of a charge by police.
Grand jury indictment: A grand jury is made up
of citizens who are summoned for duty much like trial jurors. They
serve for varying periods of time ranging from one month to as
long as three years. They meet secretly in a courthouse and are
directed by prosecutors. They can meet as frequently as every day
to once a month or whenever prosecutors wish to bring evidence
or a prospective indictment before them. Grand juries hear testimony
from witnesses, including victims, law enforcement officers, investigators,
and sometimes even prospective defendants, and then vote whether
to return an indictment. A simple majority is all that is needed
to approve an indictment. A grand jury has subpoena power and often
is used as an investigative tool by the prosecution. Grand jurors
take an oath to keep secret what goes on before the grand jury
and prosecutors are bound by court rules to refrain from discussing
grand jury proceedings. Witnesses, however, are free to speak about
their testimony or what occurred during their appearances before
a grand jury. A prospective defendant is referred to as a target
or subject of a grand jury investigation. An indictment is filed
with the clerk of court and is assigned to a judge where future
proceedings then take place. Grand jurors may be appointed by judges
or county commissioners (also known as the “key man system,”)
or from the general jury pool. Most jurisdictions do not allow
the defendant’s attorney or attorneys for the witnesses to
be present with them during grand jury questioning, although several
jurisdictions are considering a change in that policy. Witnesses
are allowed to leave the grand jury while testifying to consult
with their lawyers.
Information: A prosecuting authority, whether
a local district attorney or a local U.S. attorney, may initiate
a criminal case by filing a formal charge with the clerk of the
court. In many states, the majority of criminal cases are brought
by “information” because there is no grand jury function.
In the federal court, authorities are empowered to file a criminal
information when the charge is a misdemeanor. In the case of a
felony, federal prosecutors are permitted to file a criminal information
only when the defendant waives the right to have the evidence considered
by a grand jury.
After a charge has been filed, a defendant has a right to a bond
hearing. If the case has been generated by an arrest, a defendant
typically must be allowed to come before a judge or magistrate
within a proscribed period of time—often 48 hours. At that
hearing, a prosecutor presents a summary of the evidence and requests
a setting of bond. A defense attorney is allowed to make a presentation
regarding the setting of bond, but there is no direct challenging
of the evidence. Whatever must be posted to obtain release pending
disposition of the charges is usually referred to as the bail.
Bonds and bail can take many forms. Some bonds require that 100
percent of the face amount be posted, others require only 10 percent
and still others may require only that a defendant give a signature
to a promise to appear in court. These latter bonds are known as “signature
bonds” or “individual” or “own” recognizance
bonds—and are referred in shorthand as "OR" or "IR" bonds.
After a judge sets the bond, a defendant usually has the right
to what is often called a preliminary hearing, which involves presentation
of evidence before a judge, who rules on whether there is probable
cause to believe that a crime has been committed and that the defendant
committed the crime. This judge is usually not the judge who will
preside over a trial in the case, should one occur.
Probable cause is a lesser burden of proof than the “guilty
beyond a reasonable doubt” that is required at trial. Probable
cause is defined as a reasonable belief that a person has committed
a crime. The test the courts use to determine whether probable
cause existed for purposes of arrest is whether the facts and circumstances
within an officer’s knowledge are sufficient to warrant a
prudent person to believe a suspect has committed a crime.
In many jurisdictions, a defendant is entitled to a preliminary
hearing within a statutory period of time such as 30 days. Frequently,
prosecutors will avoid putting on their evidence at a preliminary
hearing by presenting it in secret to a grand jury shortly after
a bond hearing.
After the return of an indictment or filing of a criminal information,
a defendant is arraigned. This is when the accused is formally
asked to enter a plea to the pending charge(s). Typically, at the
arraignment, unless a defendant has previously reached an agreement
with the prosecution, a plea of not guilty is entered. Defendants
do not plead “innocent,” but plead “not guilty.” Remember
that the legal process is designed to determine guilt or lack of
guilt—technically, it is not a process of determining innocence.
Juries and judges find defendants guilty or not guilty. There is
not a finding of “innocence.” When a defendant pleads
no contest—known formally as “nolo contendere,” a
defendant does not admit to the charge, but does not deny it either
and is willing to accept punishment. A slight variation of this
plea is called an Alford plea (after a case in North Carolina)
in which a defendant does not admit to the criminal act, but acknowledges
that the prosecution has sufficient evidence to prove the charge.
(Note that the Associated Press stylebook requires its reporters
to use the word “innocent, rather than not guilty…to
guard against the word ‘not’ being dropped inadvertently.”)
Most arraignments are not noteworthy because the initial entering
of a plea is a formality—remember that most cases are ultimately
resolved by a guilty plea.
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