Criminal Legal Process Common Terms
In today’s blog we look at some of the commonly used terms and parties that are part of the process of a criminals case. Look at is as a practical definition of each item. Many times the parties involved in the criminal process forget that someone that is arrested is experiencing the process for the first time, we will try to simplify and make the system a bit more understandable.
- Prosecutor: The prosecutor is the elected official that runs the Prosecutor’s office. The role the actual prosecutor plays in any given office is largely determined by the size of the office. In some offices the Prosecutor has 150 or more attorneys (known as deputy prosecutors) working for them and the elected Prosecutor serves and administrative or CEO type role in the office. In a smaller office, the elected Prosecutor many times handles and active case load and works in the courts every day. The elected Prosecutor and his/her deputies hold tremendous power. They are the people who decide who to press criminal charges against and what those charges are. They also are the ones who determine what if any plea offers will be made in a case. Lastly if they can’t resolve the case, they are the attorneys who represent the State of Indiana in the trial against the accused.
- Defense Attorney: The role of the defense attorney is a rare job that is guaranteed by the constitution. To make sure that the tremendous power of the prosecutor is exercised with care, the Defense attorney represents the accused to defend them against the charges and to protect them against illegal acts that may have been conducted during the investigation. In short, the Defense attorney is the defender against the government’s use of their authority.
- Public Defender: This attorney plays the same role as the defense attorney described above, except they are provided at no charge to indigent defendants and are paid for by the county government.
- Judge: The Judge is the neutral that oversees the criminal process. The Judge sets the schedule for the case and assures that the parties are working towards a resolution or a trial. In the trial the judge oversees the rules of evidence, instructions to the jury, admission of evidence, rules on objections and maintains the general decorum and order in the courtroom.
- Initial Hearing: When a person is arrested or summonsed in for court to face criminal charges the court will schedule an initial hearing. This initial hearing is to inform the defendant of the charges they are facing, the possible penalties, their constitutional rights and to set future court dates. The court will also address the issue of bond and or release. Lastly, many times the judge will address the issue of whether the defendant intends to hire an attorney or needs the assistance of a public defender.
- Charges: This is simply the name of the crime that is alleged to have been committed. If multiple crimes are alleged they will appear in separate charges also known as counts.
- Omnibus Date: This is a scheduling deadline whereby the defense attorney needs to file certain motions and defenses.
- Pre-trial conference: These are court hearings (sometimes called status conferences) where the judge uses the hearing to check on the status of the case. It is primarily a way for the court to try to determine which of the many cases that are set for trial will really go to trial. Many times, the attorneys also use a pre-trial conference to share discovery and engage in negotiations.
- Discovery: This is exactly what it says it is. The “discovery” period is where the attorneys exchange information about what evidence they intend to use at trial. Additionally, during this time the attorneys can take a deposition of a witness. A deposition is a process whereby a witness is sworn in under the penalties of perjury to tell the truth. The attorneys can then ask the witnesses any questions they like as long as the questions could lead to discovery of admissible evidence.
- Probable Cause Affidavit: This is a document typically prepared by either a police officer or a detective that explains the details of the allegations being made that are used to support the charges that the prosecutor brings. A judge will use this document to ensure there was probable cause for the arrest of a defendant.
- Bench Trial: Also sometimes called a court trial. This is a trial on the charges whereby the judge decides guilt or innocence. In Indiana, a misdemeanor is set for this type of trial automatically and a defendant must request a jury trial if they wish to have one on a misdemeanor.
- Jury Trial: This is the type of trial whereby a jury made up of members of the general community decide the guilt or innocence of the defendant. All felony cases are automatically given a jury trial date. Again, misdemeanor charges require the defendant to request a jury trial. Level 6 felony cases and misdemeanors jury trials require 6 jury members, whereby all other felony cases require 12 jury members. A finding of guilty or not guilty requires all the jurors to agree on the decision.
- Verdict: This is the decision of guilt or innocence after a trial.
- Hung Jury: Sometimes all the jurors can’t agree on a verdict of guilty or not guilty. If this happens it is a “hung jury”. The jury is then discharged and the case is set for a new trial by a different jury.
- Miranda Rights: These are the famous rights you here in the movies. These include your right to remain silent and the right to an attorney. These rights apply any time before the police ask questions of a suspect that is in custody. Failure to properly follow these rights can result in evidence being barred from use in trial.
- Motion: This is any document filed with the court where one of the attorneys are asking the judge to take a specifically requested action.
- Suppression: These are filed by defense attorneys when they think their client’s constitutional rights have been violated during the investigation and are asking the court to prevent use of the evidence if the court finds it was illegally obtained.
- Appeal: This is the process whereby either attorney can file a request to the court of appeals to review the decision made by a judge to make sure it complies with the law.
- Affirmative Defense: This is a defense whereby the defense attorney must file with the court notice of this defense because they bear the burden of establishing that the defense was properly used in the case at hand.
- Probation: This is a court supervision whereby a defendant that is convicted is monitored to assure compliance with rules that the court has required as part of the consequences of the conviction. This can include drug screens, no contact orders, no use of alcohol, GPS monitoring, etc.
- Home Detention: This is a form of incarceration where a defendant is monitored to assure that they are home when they are not at work or some other court approved event.
- Work Release: This form of incarceration requires a defendant live in a secured facility that is ran by the county when they are not working or involved in some other approved activity.
- Jail: This is a secured building where defendants execute a jail sentence if they are convicted and sentenced to jail on a misdemeanor or level 6 felony.
- Prison: These are state owned facilities where defendants that are sentenced to prison live and serve their time.
In conclusion, this list is not all inclusive and is intended to provide basic knowledge about some of the most common terms you will see in the criminal process. If you or a loved one has been charged with a crime in Indiana, you should contact the criminal defense attorneys in Indianapolis at Banks & Brower 24 hours a day at 317-870-0019. We bring a combined experience of more than 25 years to help you defend your case.