Because many of you will be contacting me about a felony charge that has been placed against you, I have included the following information. Most of you are not familiar with the court system or how a case proceeds through it, so it should address some of your initial questions and concerns, and offer a basic explanation of some important constitutional and statutory rights that you have. Below are the steps in felony prosecutions.
Warrant, Arrest and Preliminary Hearing
If you were arrested on a warrant (as opposed to an indictment), or were arrested without a warrant and the police officer then obtained a warrant, you have the right to a preliminary hearing in a district court before your trial in circuit court.
A. At the preliminary hearing, the Commonwealth’s Attorney will present the testimony of one or more witnesses. With this testimony, the Commonwealth’s Attorney will attempt to establish “probable cause” that you committed the offense with which you are charged.
B. The Commonwealth’s Attorney does not have to prove that you are guilty beyond a reasonable doubt at the preliminary hearing.
C. Although you are entitled to present evidence at the preliminary hearing, for reasons that I will explain to you in person, it usually is not a good idea to do so.
D. If the district court determines that the Commonwealth’s Attorney has presented sufficient evidence to establish probable cause, he will “certify” the charge against you to the circuit court for trial. The judge does so because a district judge does not have the authority to decide whether you are guilty or not guilty of a felony.
E. If the judge does not believe that the Commonwealth’s Attorney has presented sufficient evidence to establish probable cause, he will dismiss the charge against you. However, if the charge is dismissed, it does not mean that you cannot be tried for the same offense at a later time. This is because the preliminary hearing is not a trial, and your constitutional right not to be tried twice for the same offense does not apply.
F. If the charge is dismissed at the preliminary hearing, the Commonwealth’s Attorney may elect to present the charge to a grand jury (see further information below about grand juries) in an effort to obtain an indictment. An indictment, much like a warrant, is a document that charges you with a crime. If you are indicted by a grand jury after the charge was dismissed at the preliminary hearing, you will again be arrested, processed, and possibly incarcerated. Should this happen, you need to contact my office immediately.
G. The testimony at the preliminary hearing will not be recorded unless you instruct me to hire a court reporter. However, if you eventually have a trial in circuit court, it is very helpful in many cases to have a transcript of the testimony at the preliminary hearing available at trial. This is because witnesses sometimes change their testimony and a transcript of what each witness said at the preliminary hearing would enable me to impeach or discredit that person’s trial testimony. I will be happy to discuss whether you should have a court reporter at your preliminary hearing and the associated costs.
If the charge against you is certified to the circuit court, it will be presented to a grand jury before your trial.
A. A grand jury (which is a small group of reputable citizens from the county or city where the charge is pending), much like the judge in the district court, hears the evidence against you and determines if there is probable cause to believe that you committed the crime with which you are charged.
B. If the grand jury determines that there is probable cause to believe that you committed the crime, it will return an indictment. The indictment is the formal charge on which you are tried. An indictment must be returned against you before you can be placed on trial.
C. Neither you, nor I, have the right to be present when the grand jury considers the evidence against you. Nor do you have the right to present evidence to the grand jury. Usually, the only witness that appears before the grand jury is the police investigator.
D. If the grand jury does not find probable cause to believe that you committed the crime with which you are charged, it will not indict you and the charge will be dismissed. However, 1) this rarely happens, and 2) the Commonwealth’s Attorney is permitted to present the charge to another grand jury at a later date in an effort to obtain an indictment.
The Direct Indictment Process
Even if the police believe that you committed a crime and intend to charge you, they do not have to obtain a warrant for your arrest.
A. The Commonwealth’s Attorney may instruct the police that he will present the charge against you directly to a grand jury. In this situation, just as it is described above, a grand jury considers the evidence against you and decides whether to indict you or not.
B. If you are indicted, you will then be arrested and processed.
C. In this situation, you bypass the district court and are not entitled to a preliminary hearing. Instead, the charge against you goes straight to trial, usually within a few months after your arrest.
Circuit Court Trials
You are presumed to be innocent. This presumption applies throughout your prosecution and you cannot be convicted unless and until the Commonwealth’s Attorney proves your guilt beyond a reasonable doubt.
A. You have the right to plead not guilty and the right to a trial by jury. If you have a jury trial, the jury hears the evidence and decides whether you are guilty or not guilty. If a jury finds you guilty, it then gets to see your criminal history before it fixes your punishment within the range provided by law.
B. You also have a right to waive, or give up, your right to a jury trial, in which case the judge would hear the evidence and decide if you are guilty or not guilty. However, the Commonwealth’s Attorney also has the right to a jury trial. Therefore, if the Commonwealth’s Attorney elects to have a jury trial, your case will be tried by a jury, even if you wish to be tried by the judge.
C. You also have the right to plead guilty, in which case you give up your right to a jury trial, your right to confront your accusers, and your right to remain silent. You will be found guilty and sentenced by the judge after he reviews a background report or the plea agreement that you enter into with the Commonwealth’s Attorney and the state’s sentencing guidelines, which recommend a range of punishment to the court based on the nature of the crime and several other factors.
D. You also have the right to plead nolo contendere, or no contest, which plea, for all practical purposes, will be treated like a guilty plea.
If you plead not guilty, but are found guilty, whether by a jury or by the judge, you have the right to appeal your conviction. In that event, I will discuss your options with you in detail.