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Home >Legal/Professional >Legal Issues>Path Through the Criminal Justice System

Path Through the Criminal Justice System

Path Through the Criminal Justice System

Each state, the District of Columbia and the federal courts have different laws which define their crimes. Although the justice systems are similar, there is differing terminology used in each. For example, a prosecutor in one jurisdiction (area) may be called a district attorney, while in another, a state's attorney or Country attorney. Thus, the information contained in this web page is, of necessity, general in nature.

You are encouraged to contact the local victim assistance program in the jurisdiction where the offense occurred. If there is no program available, the law enforcement agency or the prosecuting attorney handling the case should be able to provide information.

Parents Of Murdered Children® is a national organization with chapters and contact people in most states. If you need further information or assistance, please contact: The National Organization of Parents Of Murdered Children, 4960 Ridge Avenue, Suite # 2, Cincinnati, Ohio 45209, 1-888-818-7662 or at natlpomc@pomc.org.

in America, we have an adversary system of justice. A suspect is considered innocent until proven guilty. We demand a fair process for everyone. This process involves several steps with "checks and balances" to reduce the possibility of an error which would convict an innocent person. Following an arrest and prior to trial, there will be several hearings and motions heard by the court. The purpose of each is to review the facts of the offense and test the reliability of the evidence, while protecting the legal rights of all involved.

After a warrant is issued and a suspect is arrested or otherwise charged, the case officially enters the criminal justice system. Because we value our life and liberty, we have created a judicial system to decide fairly who should be punished and to assure the individual rights of the accused. The purpose is to insure that government does not mistakenly use its immense power when it decides guilt and when it punishes.

Ordinarily, the first appearance a suspect makes before the court after an arrest is at arraignment. This is to advise the suspect of the nature of the charges against him, to assure legal representation for the suspect and to set bail. Most people who are thought to have committed a crime are arrested to insure they will appear at trial. When a defendant can assure he will appear at all pre-trial hearings and trial if released, he is entitled to reasonable bail or conditions of release. Most state constitutions guarantee a defendant the right to bail except for certain capital crimes.

Bail may be offered in the form of cash or other property. If a defendant posts bail and then fails to appear for any scheduled hearing, the cash or property may be forfeited to the state or federal government. Then an arrest warrant is issued.

The case may be considered by a grand jury. This process may occur before or after an arrest is made and bail is set. The grand jury determines the charges to be pursued. These charges may differ from the initial arrest. The grand jury is a panel of citizens who hear and review the state's evidence against the accused person in a closed hearing. The defendant MAY appear before a grand jury. The purpose is to determine if there is sufficient evidence for a trial. If so, the grand jury will issue an indictment. Police officers and witnesses appear by subpoena (court order). The testimony is secret and usually does not become public record.

There may be several pre-trial and other hearings before the actual trial. One of these may be a suppression hearing in which the defense challenges part or all the state's evidence. The purpose is to insure that all evidence was gathered properly and within legal limits. Usually the only testimony in a suppression hearing is by law enforcement personnel.

Another hearing which frequently occurs is a competency hearing. This usually follows a psychiatric examination of the defendant. It involves medical testimony to determine if the defendant is mentally competent to understand the nature of the charges and to assist the defense attorney in preparing for trial.

There could also be a motion for discovery. This means the prosecution and defense will share information of physical evidence and witnesses. Unlike television courtroom dramas, real trials usually do not have surprise witnesses.

Following all the pre-trial hearings, the case is ready for trial. However, a defendant may elect to enter a plea of guilty to a charge which means there is no trial and no presentation of evidence or testimony of witnesses. A brief statement of facts is read for the court record by the prosecutor as-well-as a summary of any consideration offered for the plea. Generally, a defendant may plead guilty or no contest. A no contest plea means the defendant does not challenge the factual allegations. He/she may not be willing to admit guilt or may want to preserve some issue for appeal. After a no contest plea, the judge must determine guilt. The judge then makes a finding.

The defendant may choose to go to trial. A trial may be before a judge or before a jury. In some states it is before a three-judge panel. When a trial is held, evidence and testimony is presented by the prosecution. The defense can present testimony and evidence on behalf of the defendant. The defendant is never required to testify but may do so if he or she so chooses. After all evidence is presented, the judge or jury deliberates until a decision is reached. A jury's decision must usually be unanimous. If a jury cannot reach a decision, it may be declared "hung" and a new trial may be scheduled before a different jury.

Every state has rules regarding the time which a defendant must be brought to trial. The survivor should be aware that this process may take as long as six to nine months. Many delays in the prosecution process are beyond control of the prosecutor or the court. For instance, any pleas or motions requiring mental evaluations concerning sanity at the time of the offense or competency to stand trial, typically take months to complete. Talk to your prosecutor about the length of time your case may take.

The people most directly involved in moving a case through the justice system are the police officer, prosecutor, defense attorney, judge, and probation and parole departments. Each has different roles and different responsibilities which are explained in the following links, along with other criminal justice matters.

 

Police

When a homicide occurs, usually the first person to respond is a law enforcement officer charged with the responsibility of investigating the offense. As a result of the investigation, a determination must be made whether or not a crime has occurred.

The officer in charge will gather physical evidence, question witnesses, photograph or video the scene and collect as much information as possible concerning the victim. If a suspect is identified and probable cause suggests that the suspect committed the offense, criminal charges will be initiated. The law enforcement agency will sign a complaint or an affidavit which causes a warrant to be issued for the suspect.

In many homicides, the victim's body is moved from the location where the offense occurred. This makes the law enforcement agency's investigation much more difficult. If you are questioned by police, it is important that you be as honest and open as possible about the victim. Withholding background information may hinder the investigation.

Many homicides are committed by family members so you may be questioned either as a suspect or to eliminate you as a suspect. The police officers must remain objective in their investigation and look at all possibilities. It is also necessary for them to withhold some information about an active investigation from the public and the survivors.

In some cases, a suspect is identified but there is not enough physical evidence to file a complaint. In other cases, a suspect is not immediately identified. Usually there is no statute of limitations on homicide and these cases will remain "open" indefinitely. Never lose hope as it is not unusual for a homicide to be solved long after the offense occurs. It is unlikely the police will remain in constant contact with you but you may contact them on a regular basis.

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Medical Examiner

As required by law, the death of your loved one must be reported to the medical examiner or coroner of the jurisdiction where the deceased is pronounced dead or where the body is found. This may not be where the offense occurred. Often it is the medical examiner who determines the death was not of natural causes and will cause an autopsy to be performed. The purpose of the autopsy is to determine the cause of death and to independently document any trauma suffered by the victim.

By law, the medical examiner is authorized to order an autopsy without obtaining a signed consent by the next of kin. In most jurisdictions, an attempt will be made to contact the family and advise them of the need for an autopsy.

Once a death has been reported to the medical examiner, the remains of the deceased are under the control of the jurisdiction of that medical examiner or coroner. The body will be transported to the medical examiner's office. Then you should choose a funeral home. After the funeral home has been selected, they will work directly with the medical examiner and the body will be released to them.

Most medical examiners or coroners will allow you to view the body during normal working hours. This may be something that is allowed, especially if the family was not able to be located immediately after the death and has not had an opportunity to say good-bye.

Personal effects may have to be held by the investigating agency as evidence. The police agency or prosecutor handling the case will decide what can be released to you.

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Prosecutor

The prosecutor is an attorney who is the legal representative of the government for a certain designated area. This means that in a criminal case, the prosecutor represents the interests of the people of a community against an individual who has been charged with a crime. The prosecutor's role generally begins after an offense has been investigated and charges have been filed. The prosecutor will be in charge of the case through all pre-trial hearings, the trial and the appellate process. As the case moves through the system, a different prosecutor may be assigned. Cases can be reassigned because special expertise is needed or for a variety of other reasons.

If there is a trial, it is the prosecutor's responsibility to prove the defendant committed the offense "beyond a reasonable doubt." This is generally done through the testimony of witnesses and the presentation of physical evidence. A large number of cases do not go to trial but result in a plea. In deciding whether or not to accept a plea, a prosecutor considers the strength of the evidence, the ability of the witnesses and the stamina of the survivors as well as the possible sentence.

Most prosecutors will discuss the terms of pleas with survivors. Most states and the Federal government now have Victim's Bill of Rights which grants a victim the "right" to confer with the attorney for the government. However, even if a survivor of a homicide victim is consulted, the ultimate decision to accept a plea is made by the prosecutor in consideration of the best interests of society as opposed to the individual interests of the survivor.

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Defense Attorney

The constitution guarantees that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished. A person accused of a crime who cannot afford a lawyer is entitled under the constitution to have counsel provided at trial and for appeal.

A criminal defense attorney's legal and ethical duties in representing a criminal defendant are clear. The lawyer must zealously advocate whatever is in the best interests of the client, not the prosecutor, judge, society or survivors.

State and Federal Courts have established rules of evidence, rules of procedure and principles of constitutional law. The defense attorney's primary duty is to make sure these rules are followed by the prosecution and the court. The defense attorney is not charged with proving the suspect "not guilty" but rather assuring the legal rights of the accused are not violated.

As a survivor, it is to your benefit to have a competent and thorough defense attorney representing the defendant. There will be less chance of judicial or trial error, overturn of the conviction on the appellate level, convicting the wrong person, and less chance of imposing an improper punishment.

It is possible a defense attorney would want to speak with you before the trial. If you are contacted by the defense attorney, it is advisable to speak with the prosecutor before providing any information to him/her.

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Judge

The judge has many functions in the criminal justice system. First, he must be an impartial decision maker. A judge cannot take sides in a criminal case but must treat both the defendant and the government fairly and impartially. The practical effect is the judge cannot have any personal contact with members of the victim's family while the case is pending.

A judge decides what evidence can be admitted against the defendant. Case law, rules of evidence and rules of procedure, which are different in every state, determine what can be considered by the judge or jury.

If a case is tried before a judge, the judge makes the decision of guilt or innocence. If a case is tried before a jury, the jury decides guilt or innocence. After the trial, the judge usually determines an appropriate sentence for the defendant. In all capital cases, a jury makes a sentencing recommendation. In some states, the jury's recommendation is binding on the judge, in other states the judge has the final decision on sentence of death. Although judges have some discretion in sentencing, most states like the United States Congress have sentencing statutes and/or guidelines.

Judges must also manage the flow of the case by setting deadlines and forcing the prosecution and defense to meet these deadlines. All survivors want the case to be resolved as soon as possible so they can go on with their lives. However, families must be prepared for the possibility that the case will be continued for a number of reasons.

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Jury

A jury is a panel of citizens selected from the community in a random manner. Prior to being seated in a criminal case, the potential jurors are questioned in a procedure called "voir dire." The purpose of questioning is to obtain people who are fair and impartial. For example, it would be inappropriate for a jury member to have special knowledge of the offense, to know or be related to any party in the case.

A jury is a "trier of fact" and has the responsibility of deciding guilt or innocence. They are only permitted to hear the facts of the offense before them and may not be given any additional information of the character of the defendant or the victim.

It is important for a survivor to understand that sitting in a trial you cannot attempt to influence the jury in any way. There will probably be evidence presented and testimony given that is very painful to hear. If you react in any way, this could be considered grounds for a mistrial. A jury may feel sympathy for survivors and an outward display of emotion could effect their ability to remain fair and impartial.

Also, be careful about conversations in hallways, elevators, restrooms or restaurants near the courthouse. Jurors could be present and overhear.

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Presentence Investigation (PSI)

A presentence investigation (PSI) is a social study of the offender. It includes prior criminal history, educational and employment background, drug/alcohol involvement and mental health treatment. The report includes a brief statement of facts of the case and an investigating law enforcement statement regarding the offender's behavior and cooperation at arrest.

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Victim Impact Statement

In addition to the presentation report, 48 states, the District of Columbia and the Federal Court System have laws allowing completion of a victim impact statement. This is the principle means for a survivor to communicate with the court and describe how they were affected by the crime.

The victim impact statement is usually completed at the same time as the presentence investigation. It addresses the physical, mental and emotional injury suffered by the survivor. In some jurisdictions, a form is provided to the survivor while other jurisdictions will complete a statement by a personal interview.

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Sentencing/Restitution

Sentencing is usually the last action of the trial court. Following conviction of an offender, the presiding judge imposes some sanction or punishment. All states, the District of Columbia and the Federal Court System have statute laws governing sentencing. A judge has some discretion but the minimum and maximum length of sentence is set in the criminal code of each jurisdiction.

The sentencing hearing is usually fairly short. The defense may make a statement on behalf of the offender, noting mitigating factors which could be considered in lessening the penalty. The prosecutor may also make a statement giving the position of the state. The offender is also permitted to make a statement on his or her own behalf. Many states allow the victim or survivor to speak at the sentencing hearing in addition to any written statement presented.

Sentences may be a few days in a county jail or as severe as a death penalty. At the time of sentencing, offenders are given credit for any time served prior to trial. A jail sentence may be suspended and the offender placed on probation. Probation is a definite period of time.It allows the offender to remain in the community under supervision with some restrictions.

At the time of sentencing, whether or not probation is granted, the offender may be ordered to pay reparation or restitution. Although these terms are frequently interchanged, reparation usually refers to burial expenses. Restitution refers to out-of-pocket expenses sustained by the victim/survivor as the result of property loss or damage and medical expenses. This information will be conveyed to the court (judge) in a presentence investigation or the victim impact statement. It is important to specify losses when completing this report. If reparation or restitution is ordered by the court, it is usually collected from the offender by the probation department or the clerk of courts. However, restitution payments can also be collected while an inmate is in prison. Payments are often made on a weekly or monthly basis and can extend over a period of probation. The payments are forwarded to the designated family representative.

In many instances, homicide offenders are not eligible for probation. Ask your prosecutor about the potential penalties.

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Appeal and Post Conviction Process

Virtually all convicted offenders have the right to request an appeal. This means the entire case, from investigation through sentencing, can be reviewed by a higher court or appellate court. The defense submits a written brief noting the areas where an error may have occurred. The prosecution is given an opportunity to respond. These documents, along with a transcript or video of the trial, are submitted to the appellate court for review. There also may be an oral argument before the court, although no new evidence or testimony may be presented.

The appellate court may either affirm the conviction or overturn the trial court decision. If the conviction is overturned, the case may be retried.

After review by an appellate court, the case may be taken to the state supreme court and later the U.S. Supreme Court. Cases involving a death penalty are automatically reviewed by an appellate court and usually the state supreme court. The case may be subject to several additional levels of review which is called "post conviction relief."

If you have questions about the appellate procedure in your state or wish to attend an oral argument, contact the prosecutor's office or the local victim assistance program.

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Parole

Parole should not be considered an award of clemency or a reduction of sentence. The granting of parole allows a person to serve the remainder of their sentence in the community under supervision and subject to various rules and conditions imposed by the parole board. With the exception of those individuals sentenced under a death penalty statute, most offenders are considered for parole at some point. Rather than releasing inmates from prison without controls, parole provides the gradual re-integration of the offender in the community.

Most parole boards function as independent and autonomous structures of the executive branch of government. Parole eligibility is usually established by statute with some discretion to the parole board. The scheduling of a parole hearing does not necessarily lead to the release of an offender. The parole board will consider the seriousness of the offense for which the individual has been convicted, the offender's past arrest record and adjustment while in the institution. Parole boards also consider the victim impact statement.

A notification system in parole departments allows notification to victims and survivors of all scheduled hearings. It is usually incumbent upon the survivor to tell the parole board you wish information concerning the offender. Shortly after sentencing, send a short, written note to the parole authority telling them you wish to be notified of hearings. If you change addresses, send your new address. The only way a parole department can notify you is if you keep them advised of your address. After receiving notification of a hearing, you may respond in writing, stating your feelings, appear in person before the parole board, or take no action. Offenders are usually paroled to the state and county of their residence. It is not necessarily the state and county where the offense occurred or where you live.

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Your Role as a Witness

If you have been a witness to the offense or have knowledge relevant to the prosecution or defense, you may be required to testify at the trial.

If you are needed to testify, you will receive a subpoena. Your role as a witness may be crucial in assuring prosecution. Upon receipt of a subpoena, you should report to the designated place at the proper time. In major cases, the prosecutor will have interviewed you before trial to determine the facts as you know them. The defense attorney may also want to speak with you. It is best to speak with the prosecutor before you have any conversation with the defense attorney.

If you receive a subpoena, you will not be permitted in the courtroom during the trial. All witnesses must be separated from the courtroom proceedings and are not permitted to discuss the case or testimony among themselves.

If you testify, be direct. Answer each question specifically. Do not anticipate questions, rather wait until they are asked. Answer only what you know to the best of your memory. If you do not remember, say so. Do not guess.

Many cases generate a great deal of publicity. You are not required at any time to speak with the press. In some cases, it is better if you do not make a public statement as it may affect the trial.

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Civil Aspects

After the criminal trial and conviction of the offender, there often remains a fundamental question: Could the death have been prevented? There may be civil recourse which can assist in answering this question.

The circumstances of the offense - the when, where, who and why - of each particular case, dictates what, if any, avenue of compensation may be available to you. For example: if the victim was a guest at a motel/hotel, a student in a college dormitory, a patient in a hospital or a passenger on public transportation, there may be a legal duty imposed on those owning and/or operating the motel, college, etc., to protect the persons in their charge from criminal attacks. If indeed a duty to protect against the criminal conduct of others can be established in a particular case, there must be evidence or proof there was failure to provide the required protection which directly resulted in the victim's death.

You must remember that the laws, whether statutory (enacted by Congress or a state legislature), or case law (developed and established through written decisions of judges over the years), can and do vary from state to state. Consequently, the result under the same facts in one state may differ dramatically from that in another.

All states have time limits which a lawsuit for personal injuries or death may be filed. The effect of these limitations is if a lawsuit is not filed in the appropriate court of law within the required time period, the claim will be forever barred regardless of the merits of the case. Although a civil case is normally determined after the criminal action, it is imperative to have an experienced, competent attorney specializing in personal injury law review the facts of your case as soon as possible.

Compensatory damages which may be recovered as the result of negligent or intentional conduct of another will vary greatly from state to state. Damages may range from financial loss incurred such as medical bills, burial expenses, etc., to damages for intangible items such as mental anguish, grief, loss of companionship, etc.

In addition to compensatory damages, punitive damages may be recovered under limited circumstances. Punitive damages are assessed against the criminal or responsible party as punishment for their conduct. The fact that a criminal has been punished through the criminal justice system does not prohibit an award of punitive damages. The financial condition of the criminal or wrongdoer is directly relevant to the amount of punitive damages that may be awarded.

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Crime Victims Compensation

Crime victims compensation programs in all states except Maine provide financial assistance to victims and survivors of victims of criminal violence. Payments are made for medical expenses, including expenses for mental health counseling and care, lost wages attributable to a physical injury and funeral expenses attributable to a death resulting from a compensable crime. Other compensable expenses are included such as eyeglasses or other corrective lenses, dental services and devices and prosthetic devices. Each state establishes it's own procedures for making a crime victim compensation application, procedures to be used in processing applications, approval authority and the dollar limits for awards to victims.

For additional information regarding the Federal crime victims compensation program, please contact your respective State VOCA administrator.

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Victim Assistance Programs

There are over 6,000 programs providing a wide variety of services to help crime victims and/or survivors of homicide victims throughout the United States. They include rape crisis centers, domestic violence shelters, victim/witness assistance units, child abuse treatment programs and others. Programs are located in law enforcement agencies, prosecutor's offices, churches, independent community-based groups, hospitals, mental health associations and social service agencies. They provide crisis intervention, counseling, emotional support, emergency assistance, court notification, case information and an array of other services. Programs to address the needs of survivors are developing in each state. Many of these programs receive partial support from the Crime Victims Fund which was authorized when the Victims of Crime Act of 1984 (VOCA), as amended, was enacted.

For additional information regarding this Federal Assistance program, please contact your respective VOCA Administrator.

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Legal Rights of Survivors

It may appear the court system is set up to favor the accused. However, victims and survivors do have rights. Almost all states and the Federal Court System have enacted statutes addressing the rights of victims. Several states have constitutional amendments which complement and strengthen the statutory law.

Most importantly, victims have the right to be treated with dignity and respect. As a survivor of a homicide victim, you are sometimes perceived by the justice system to be a secondary victim. You may need to remind everyone with whom you have contact you are a primary victim.

You have the right to be notified of all pre-trial and trial actions. If you are not a witness, you have the right to attend any or all of these hearings. If you are a witness or are otherwise needed to testify, you may not always be allowed to sit in the courtroom during some of these hearings.

Expect court personnel to be sensitive to your needs and if they are not, remind them this is very difficult for you and your family. If there is a victim advocacy program in your court system, contact them. If there is no program available contact the prosecutor's office and find out who is handling your case. Ask for an appointment with the prosecutor and go with a written list of any and all questions.

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