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Overview of the Criminal Process

Overview of the Criminal Process

Overview of the Criminal Process

By Jim Crawford

The Investigation Begins

Criminal investigations and charges originate in several ways in Maryland. One of the most common ways is when a citizen files a complaint directly with a police officer. For example, if two individuals are out at a bar and get into an altercation, the police are called and one of the individuals may wish to charge the other one with assault.

The same common theme revolves around domestic assaults, where you have a husband and wife or other family members get into some sort of argument at the home, and someone calls the police. The police arrive at the house and because someone actually called them, they usually have probable cause to enter the house to see if there was any disturbances or if everyone is okay.

That’s called exigent circumstances. The police will then interview both people and make a determination as to whether or not criminal charges will be filed. If the police decline to charge then it is up to the individuals to charge via a commissioner.

Many times police decline to charge for any “on-scene” scenario and they will simply advise the individual or individuals to go to the commissioner at the local district court.

Police & Commissioners

Commissioners are judicial officers appointed to act as individuals who may initiate criminal charges and/or issue declarations such as protective orders and/or peace orders.

If an individual declines to press charges against another, that does not mean the police will not make an arrest and charge the individual. Many times in a domestic situation, two people call the police, and the police come to investigate. After the anger subsides, the person making the allegations does not want the other arrested, but the police often still do so. They do so on the theory that if a crime has been committed, it’s their duty to arrest and file a criminal charge.

The law indicates that if a police officer sees a misdemeanor or felony occurring in front of them, they are obligated absolutely to arrest and begin the criminal process. If a police officer has reasonable suspicion and/or probable cause that a misdemeanor or felony had occurred in the past, then they also have an obligation to file criminal charges.

Usually past felonies are reserved for other types of police officers such as detectives and other investigators.

Another method of charging is simply where an individual wishes to file criminal charges against another and they do so by going to the commissioner’s office. As stated above, the commissioner is a judicial officer that will make a determination as to whether or not probable cause exists for that charge to be filed.

A good example is if an aggrieved victim goes to a commissioner and claims that an aggressor and potential defendant committed a crime against her, that commissioner then must make an assessment by law to determine if in fact, based upon the circumstance presented that a crime may have occurred.

In essence, a commissioner is looking at the facts, assessing the person’s credibility and determining whether or not the elements of the crime have been met. If so, that commissioner may issue a summons, or a warrant on a charging document.

The procedure is that an individual will go to a commissioner’s office and actually write out a statement of facts. The commissioner will make her determination based on those written facts. Those written facts become evidence to be used later by a criminal defendant’s attorney because they represent what has alleged to have occurred.

I often tell people that in the United States it is very easy for anyone to go to a commissioner and/or the police and make up an allegation. It really isn’t the commissioner or the police officer’s duty to make absolutely sure that the charges are true or false. They are not there to judge as to whether or not the crime actually occurred. They are there to push it into the criminal judicial system for that allegation to be carried through the legal process.

Many times people are very angry and say to me, “how the hell could this happen and how could someone simply make up something about me and obtain criminal charges?” I tell them it is very easy for someone to make up facts and to try to procure a criminal charge. However, as the process continues, it is very difficult for an individual to simply make something up because there are many ways to prove the thing alleged didn’t occur.

Grand Jury

The most common method of charging an individual with a crime is through a police officer and/or a commissioner. However, another very common method is through the use of a grand jury. A grand jury consists of 24 individuals who will sit in a jury room in the circuit court of the counties in Maryland or Federal court and make a determination as to whether or not a crime may have occurred.

The grand jury room is sanctum from the standpoint that a defendant is usually not involved or allowed to be in the grand jury room, and it consists almost entirely of being run by the state’s attorney’s office. The state’s attorney’s office will present evidence to the grand jury, usually via the detective or police officer that has knowledge of the crime and most of the time the grand jury will indict.

Everyone has heard of the slang term, “Anyone can indict a ham sandwich.” Well, that saying is very true from the standpoint that the only evidence presented is by the state or federal prosecutor and usually grand juries will go along with what is being presented. After the grand jury indicts, the process proceeds normally.

A Criminal Information Charge

A less common form of a charging document is something called the “criminal information form”. This is a situation where the state’s attorney’s office decides to file criminal charges directly against the defendant. Usually this occurs by following criminal charges in the circuit court as opposed to the lower district court.

This is a tool that state’s attorneys use to get around various defense strategies such as a hearing at the preliminary hearing stage which we will discuss later.

The thing to remember is that almost all criminal charges start in the district court. So, when a police officer or individual charges someone with a crime, the charges are facilitated through the district court system. The state of Maryland district court system has a computer program that is “tied together” throughout the state. Each county in the state of Maryland has at least one district court. Some counties such as Baltimore County have three different locations for district court. It basically depends upon the size of the county and the funding allocated.

Preliminary Hearing

Even a homicide charge or very serious rape charge starts in the district court. If a defendant is charged with a felony, then the Defendant has an absolute right to a preliminary hearing. A preliminary hearing is a process where a district court judge will listen to evidence presented by the state’s attorney’s office to make a determination as to whether or not there is enough evidence for the case to continue to the circuit court. In other words, the judge must determine whether or not the allegations could have occurred.

The theory goes as follows, suppose you lived in a small town somewhere in Maryland. Suppose you grew up in a situation where the local sheriff really didn’t like your family or had some problem with you individually. The preliminary hearing is designed to prevent police abuse and state authority carelessness. If there is probable charge or even a scintilla of evidence that a case or an incident could not have occurred then the district court judge at the preliminary hearing should dismiss the charges.

You may be asking yourself, what is the real purpose of a preliminary hearing and does it do any good? The answer is unequivocally yes. I will give you an example. I had a case in western Maryland a few years ago where a defendant was charged with very serious drug distribution charges. In fact, the amount of drugs involved was worth hundreds of thousands of dollars.

The state declined to indict and we actually had a full preliminary hearing. Remember, at the preliminary hearing, the state’s attorney’s office must present evidence, but the defendant cannot present evidence nor testify. Her attorney can in fact cross examine the witnesses presented by the state to make a determination whether or not there is probable cause that a crime was committed or had occurred.

In this particular situation the state presented a senior police officer who had investigated the charge. The officer testified that they had recovered very large amount of narcotics in the individual’s home. They spent a considerable amount of time talking about how it was discovered and also what the end result was. Finally, the state was obligated to present the fact that the alleged narcotics were actually a controlled dangerous substance prohibited by the state of Maryland. In other words, they had to show lab results that in fact the drugs were illegal.

After a lengthy cross examination of trying to make headway about how and where this occurred, I asked a few simple questions about the type of drugs. I analyzed the lab result of the drugs that were seized and I noticed that on the lab results it stated that all the narcotics recovered were heroine. The officer testified that the drugs recovered were in fact cocaine. Now, remember the defendant was charged with distribution of a large amount of controlled dangerous substance. Based upon the fact that this officer made a miss-statement and categorized the testimony differently from the lab result equated to a complete dismissal of the felony charges.

That example is rather simple, but there are many other examples. Here’s another example. I handle many domestic violence cases and quite often the state will charge the defendant with the first degree assault as well as second degree assault.

When an individual is charged with multiple counts in district court and some of them are felonies, only those felonies are subjected to the preliminary hearing review. The difference between first degree assault and second degree assault in the state of Maryland is something very important. To simplify it, for the state to prove the existence of first degree assault, the state must show that it was a very serious assault. Usually a weapon is involved or some sort of choking which puts the victim close to a paralysis or death.

Second degree assault in Maryland is simply an unlawful touching and can be serious but usually is on the less serious side.

The defendant was charged with first degree assault and after cross examining the police officer it was shown that there were in fact no serious possible ramifications of death even though some strangulation occurred. Based upon that, the felony first degree assault charge was dismissed.

If in fact a defendant is charged with multiple accounts in the district court and some are misdemeanor but some are felonies, after the preliminary hearing, if the felonies are dismissed the case will stay in district court. If there is probable cause shown in a preliminary hearing, then, the case will be moved to the circuit court including misdemeanors. A very common theme and strategy of the state’s attorney’s office is for them to simply indict the individual prior to the preliminary hearing. The state’s attorney’s office will do that many times if in fact they believe the defendant may have a chance or opportunity to get rid of the felonies. That puts the state in a situation where they have more leverage at the circuit court because the felonies are still alive and are in the circuit court.

This is another reason why we see quite often the state’s attorney’s office simply filing a “criminal information” directly to the circuit court to give them more leverage. A defendant needs to determine whether or not his case or her case has a chance for staying in the district court and if it does not, and it proceeds in the circuit court, what type of strategy can be used.

Your lawyer should have an in depth understanding of each charge and elements there too. Your lawyer should also have a very good understanding of what most judges will do on a particular situation as well as the propensity of the state’s attorneys.

More about Grand Juries

Grand juries have always been the basis of fascination for TV shows and stories as to how individuals are charged with crimes. We’ve all heard of the saying that, “Anyone can indict a ham sandwich.” Although that is true, it’s a little bit more complicated than that. There are two basic types of juries in our criminal justice system. A petit jury which is the type of jury you see in a court room where there are 6-12 individuals who vote on criminal and civil causes. A grand jury is completely different. It is a mechanism and tool used by the state’s attorney’s office or the Department of Justice to charge individuals.

The federal system has a grand jury as well as the state system. Both consist of up to 24 people and in order for an indictment or a criminal charge to be brought forth, depending upon the jurisdiction usually is two-thirds or three-quarters of the grand jury.

To really understand what a grand jury does, we have to look inside the mind of a prosecuting attorney. While many indictments are strictly routine -- that is people are charged on a routine basis every week -- many are high profile cases. There are many circumstances where a prosecutor may not want to actually file a charge or charges themselves but will lay it in the lap of a grand jury to make that determination. It’s usually because of a political decision or a high profile scenario.

Grand juries are highly secretive. If you are selected to be a juror in a grand jury you must keep everything that occurs within the room a secret. Defense attorneys and their clients are generally not allowed in the grand jury room

The secrecy is really designed to allow people to freely speak their mind (testify) and for prosecutors to build cases. Sometimes it takes weeks or months to build a case. Others occur in minutes. Grand jurors are appointed to the grand jury for a day or in some circumstances for a lengthy period of time. In the latter case it’s usually because the prosecuting agency is building a case against a defendant or defendants and it takes time to gather evidence and present what they have found. They usually do that via subpoenas or testimony.

There are strict state and federal laws about trying to pierce the grand jury veil. In other words it is illegal for attorneys as well as citizens to try and uncover that veil or to disclose information presented.

Typically, what happens is the prosecuting attorney presents evidence to that grand jury. The evidence usually consists of a police officer or individual who has information regarding the alleged crime. There is no hearsay rules and it is very relaxed unlike a regular court of law. The prosecuting attorney will ask the witness or witnesses questions and information will be presented to the grand jury. Witness testimony as well as other evidence may be presented.

At the conclusion of the prosecutor's case, the grand jury will vote on whether or not to return an indictment. All in all, an indictment is simply a raising of the hands and voting on whether or not to prosecute. If the grand jury decides to prosecute then an indictment is signed, sealed and delivered to the clerk’s office of the court and is ready for delivery and presentment.

In an earlier blog post I talked about the reason why individuals have the right to a preliminary hearing when you are charged with a felony. That is, the right to have an individual judicial officer review the facts and make a determination that there’s no hanky-panky going on with the prosecutor’s office or the police. To simply ensure that the government has enough evidence to go forward.

The same is true with the grand jury. The legal theory is that in our jurisprudence system a grand jury is an independent body that can review the facts as applied to law and make sure that the government is not playing hanky panky regarding any decision to prosecute. That is another reason why some prosecuting attorneys like to have grand juries present an indictment because it takes it out of their hands as far as anyone blaming them for being over-zealous and charging a defendant. They simply say that it was up to the grand jury and they decided to indict.

Suffice to say that simply because a grand jury returns an indictment does not mean it’s legally sound. There are many circumstances where a prosecuting attorney will present evidence to a grand jury and the grand jury returns an indictment based upon evidence that is less than convincing. In rare circumstance I have filed a motion to ask the court to allow the grand jury proceedings to be recorded so that the transcript could be completed. This is done because what we want to find out is whether or not the prosecuting attorney presented evidence properly to the grand jury so they were not misled or told something that cannot be proven. If they did so, then that is the basis for a defective indictment and dismissal.

If in fact it can be shown that evidence was presented that is not true, then the defendant may not only have a motion to dismiss the indictment based but also to use the misleading evidence to impugn the government’s case. In any high profile case it is normal and a standard motus operendi that the grand jury be recorded if in fact the defense is are aware that they are meeting ahead of time.

Mechanically, if a person is indicted they will not have the right to a preliminary hearing and district court proceedings are not involved. From a jurisdiction standpoint, the circuit court of the county which the crime was committed immediately has proper jurisdiction and the case will proceed in the circuit court forthwith.

Many times the defendant will have already been charged in the district court when an indictment is handed down and jurisdiction is immediately removed from the district court to the circuit court.

What Occurs After a Summons or Warrant is Issued and How Does the Bail Process Work?

Many times a criminal defendant is not even aware that she has been charged in a matter. Often, the first time she becomes aware that there is a problem is when she is arrested by police or she receives a summons in the mail indicating that she has a trial date.

A commissioner is usually the determinative factor as to whether or not a summons or warrant will be issued. When a complainant arrives at the commissioner’s office they will describe to them the severity of the circumstances. There are certain types of cases that almost always require a warrant. Obviously a murder or homicide, a felony sex matter, child pornography or anything similar. When the warrant is issued, the warrant is given to the local police department and the “warrant squads” will attempt to service the defendant. Sometimes they will come in the middle of the night, other times they will make routine stops at the house in order to lock the person up. I always advise people if they receive a call from a detective or police indicating there is a warrant or they need to come down to the station, please be aware that it could be a warrant. You need to have your attorney contact them immediately to determine what the status is and how it can be handled.

If it is discovered there is a warrant it is usually more advantageous to have your lawyer schedule a time to turn yourself in with the arresting officer or detective. That way, you can have all your ducks in order as far as bail and timing of your ability to get out of jail.

A warrant is a declaration order from the state directing a police officer to arrest and take an individual into custody. They are then taken to the charging center such as “central booking”. Being arrested is a scary proposition to a lot of people. Mny people who find out they have a warrant contact my office only to reveal they are scared to death. What they really want to know is whether or not everything is going to be okay. Unfortunately in that situation, the mechanical process of the arrest and booking must occur. Most people find it more comforting to know they have a lawyer in their corner, and I know people appreciate it when I set up a time for them to turn themselves in so that we can time the arrest and the booking process in a reasonable manner.

Typically what I will do is speak to the arresting officer and/or the detective and make a deal where the person will turn themselves in at a particular time. I usually do it early in the morning so that we can try to get them out hours later. It’s important that you understand the process booking in a scenario with a warrant. Many times we can get someone turned in, booked and out within several hours. It simply depends upon the jurisdiction.

If in fact it is a summons issued then obviously you don’t need to worry about being locked up. The commissioner has deemed that it is an offense not worthy of issuing an warrant and the court issues you a summons demanding you to show up in the district court to face charges. Simply because it is a summons doesn’t make the case less serious but generally that is the thought process. It is extremely important to have a lawyer during this period because they can assist you in navigating the process. Simply put, after you are put in handcuffs you are taken to the booking department. You may sit there for a short period of time or maybe a long period of time depending upon how busy things are at the station. Once you are routinely booked which includes fingerprinting and photograph, then other information is obtained from you. In Maryland, each defendant has the right to be seen by a commissioner for a bail review within 24 hours. Generally that occurs in many times very shortly after the arrest. Sometimes if you are in Baltimore City Central Booking it can go into a second day or more.

A commissioner is someone who can gather information from you, assess the charges and determine whether or not bail is appropriate. The commissioner can deny bail, issue a surety bond (which means that an insurance company is involved in posting the bail), issue a high or low bail and/or a cash bail. Commissioners in some cases can allow property to be posted in lieu of bail. Interestingly enough, up until a couple years ago the so called mini-hearing in front of a commissioner was usually done with just the commissioner and the defendant. It was deemed of little consequence. However, I believe as well as many other lawyers that step can be very important in the process as far as whether or not bail is given. Recently, lawyers have been allowed to attend these little mini hearings with the commissioner. I think it’s helpful in many circumstances.

However, because these hearings may occur at all times in the day or night it’s very difficult for a private lawyer to attend. The public defenders office allows lawyers to attend these hearings and get paid through the state so that an individual at least has someone they can ask questions to about the process.

If the commissioner sets a bail, the defendant may post bail immediately and walk out of the detention center. That is why it is so important to have the bondsman, or the bail bond agency ready to proceed before you are locked up. If the commissioner sets a reasonable bail and you have a bondsman available, the bondsman will usually do the legwork and go and post bail. They get paid a fee for doing so. Generally the fee is 10% of the bail but I have seen a wide range of costs over the years. Generally, the bondsman’s cost of insurance is about 4% and anything they make over that is profit.

If all goes well, then the defendant should be out after a few hours. However, there are many circumstances where the Commissioner will deny bail or set a very high bail. The defendant has the legal ability to wait to see a district court judge, either later that day or the next day. They will not be released until that occurs unless they post bail with the amount set by the commissioner. At this point in time caution is merited because if you take a change on getting a better deal with a judge and you strike out, then you may be stuck for quite a while. Your playing with fire if you don’t know the ropes and the jurisdiction. It takes a very experienced attorney to know what the chances are for a defendant to receive a bail from a district court judge if in fact a bail was denied by a commissioner or a bail was set very high. Many times individuals want to take a chance and try to get the bail reduced because the commissioner set it high. Sometimes that is a mistake because they then find themselves in a scenario where the district court judge will deny bail. At that point in time, all bets are off as far as the commissioner’s recommendation and the judge has denied bail therefore the defendant will not be getting out.

If the defendant is charged with a felony and has been denied bail, she has the right to a preliminary hearing if requested within 10 days. Generally, a defendant is stuck in jail until a later time unless she can convince the district court judge at the preliminary hearing to issue a bail. This is rare because judges are there that day for the preliminary hearing and not a bail review. However, a good lawyer will try to craft a scenario where that can occur if prior bail has been denied. A lawyer can also request that an additional “bail review” or a “habeas corpus” be heard.

Many times attempts to get the defendant out of jail prior to trial are simply fruitless because of the nature of the charges. The facts of the case and the defendants background such as prior criminal history as well as the nature of the crime alleged will make that determination. Flight risk, public protection and a determination if the defendant will show up are what the judge is pondering. Technically under the constitution a defendant is deserving of a bail release but not always.

From my experience over the years, working with criminal defendants one of the most difficult things to determine is the bail scenario. It has to be recognized that the Maryland bail industry still has very strong connections to the Maryland General Assembly. Remember, these bondsmen get paid for their services. The legislature allows the bonds to remain high in many circumstances which in my opinion sometimes are unreasonable. However, quite honestly I have seen many counties in Maryland where they are now lower than they have ever been, in complete contradiction to other counties where they are set high.

It’s very wise for you to have an attorney who knows what she is doing in theses circumstance. I’ve seen many situations where clients opt to have a judge make a determination on the bail when they could have gotten out as a high bail with the commissioner. Sometimes there is a ignorance as to deciding to get out with the commissioner’s bail and that uneducated decision puts the defendant in a situation where they end up sitting in jail for weeks or months at a time. It’s better to have an experienced attorney make that decision.

On the flip side of the coin there is no “ bail” on the federal level. In federal court judges make a determination as to whether or not to release the individual into the community or to have them monitored through home detention. Money bail is usually not applicable. As with the state, pretrial services will make a determination and make a recommendation to the judge as to whether or not the individual should be released. On a federal level the standard is much higher because they are talking about releasing the defendant into the community or on home detention.

On the state level, home detention and community detention is possible, but must be carved out in rare circumstances. Usually it’s simply being released on bail.

Many people have accused the bail processes of being antiquated. I agree on many levels. The primary purpose of bail is to ensure that the defendant will show up in court at a later time. The other factors to consider are the dangerousness of the defendant of the community, the harm to the community and the defendant’s past record, as well as the facts of the stated case.

Many judges will err on the side of caution when it is a very serious case and hold the defendant without bail or to a very high standard of bail. That is why it’s very important to have a lawyer with you at the bail review process so she can carve out exceptions as to what’s being alleged. A particular note of curiosity is that the judges and commissioners are required to assume that the facts alleged are correct in the case. It’s not a question of guilt or innocence, it’s simply a question of whether or not they should be released on pre-trial bail.

What is an Arraignment on a State and Federal Level?

On a state level, an arraignment is pretty simple. The defendant is required to come to court in front of the judge and the judge usually advises in detail the defendant’s of her constitutional rights. Sometimes they will advise them on procedural matters. The charges are usually read in detail in open court against the defendant and advised to have an attorney enter their appearance. They are advised they could lose certain rights if they do not do so immediately.

Many courts will allow or will require the defendant to actually enter a plea of not guilty, guilty, or no contest, “nolo contendere”. The latter is very similar to a “not guilty” plea.

On the state level by the time a defendant gets to the circuit court for arraignment, the bail and release have already been addressed by commissioner and a judge right after the arrest. However, there are times when the defendant is still in jail and the defendant has been indicted and is standing before the judge at the circuit court for the first time entering a plea. Many wise attorneys will use that opportunity for a bail review if in fact the court allows them to do so.

If the defendant is still incarcerated and the judge allows the defense attorney to present a bail review, the judge must make a determination of the following items.

Whether the defendant is a danger to the community, the defendant’s criminal record,

the defendant’s ties to the community (how long has he lived in the community and whether he has family nearby), whether the defendant is employed in the community and for how long, and whether the defendant has any history of failure to appear in court (FTA).

If the judge decides that a bail is proper, then she will determine whether or not the defendant is released on her own recognizance (ROR). That means generally just released with the promise that you will report for trial and not commit any other crimes prior to thereto.

Judges and commissioners usually release defendants on ROR if it is a minor case. As stated above a judge may issue a bond or bail. If a judge requires the defendant to post a bond or bail, the defendant must post money with the court in order to be released pending completion of the case. The court can require cash bond or a surety bond as stated. If the bond is “cash only” the defendant must post that amount with the court. Once the case is complete the money is funded less any fees the court may have. Usually there’s very little or no fees regarding same.

If the court allows a surety bond, a bondsman or bail company deposits a percentage of the bond with the court via a “promise to pay bond” with a contract that the bailsman will pay the balance of the bond if the defendant does not appear in court and cannot be located. That is called a surety bond. The defendant has to then pay the bondsman a portion of the bond for their services. A court can also issue other conditions requiring a defendant to do certain things to protect the community.

For example, they may require them to have no contact with witnesses, not use of drugs or alcohol, no association with any other defendants involved with the case, not to commit any new crimes or have any new arrest, to not associate with known criminals, to not possess any firearms, not travel outside the county or the state. If the court determines that the defendant violates any of these conditions, the court may rescind the ROR or bond and hold the defendant in jail pending trial.

I have recommended to judges on many occasions that if in fact the court is reluctant to release a defendant on ROR or a regular bail, then they should be able to carve out some sort of supervised release such as home detention. The court can place the defendant in a supervised release program or on pre-trial supervision which is similar to probation. The defendant may have to report to a probation or other supervising officer in order to comply with the terms and conditions while they are released prior to trial.

In most jurisdictions, the defendant must appear for arraignment. However there are some jurisdictions such as Baltimore County Circuit Court or Arundel County Circuit Court where if a criminal defense lawyer enters their appearance then the arraignment is waived. The reason for that is if an attorney represents that they are entering on behalf of the defendant, it is deemed that the defendant is being advised properly of the law and charges. The prosecuting attorney then will forward any charging documents as well as related evidence to the attorney.

There are many other counties in the state such as Howard County, Carroll County and Baltimore City and Harford County among others where the defendant must appear in order to enter into a conversation with the court and the state’s attorney’s office regarding the nature and potential for trial in the case.

I find that many times in these jurisdictions, the arraignment can be very helpful because you can get a head start as to what the state’s attorney is looking for in the case as well as an actual recommendation or plea offer. Many times the plea offer is just a starting a point and I usually do not recommend a defendant taking same, however it gives us an idea as to where the state is.

In many jurisdictions, an arraignment is looked upon as a proforma mechanical requirement. In fact many state’s attorneys send clerks or other individuals to work with the court and defendant regarding the arraignment. The most important function of the court is to advise the defendant of how important it is to get an attorney in that situation. Even if it’s a public defender because they will then get enough information about doing the same.

On the federal level, arraignments can be used for many things. Sometimes they are very similar to the state arraignment except that the court will determine whether or not to hold the defendant. The “community release option” is always the first intent of the federal courts for the defendant. However there are times when individuals are dangerous to the community or pose a serious threat that they are held without release. Sometimes at the federal level subsequent arraignments occur to further address particular issues in a case.

After the Arraignment

What happens after the arraignment? If the defendant is released or already released, then the case proceeds as normal. Sometimes trial dates and motion dates are picked at the arraignment. Many times a trial judge wants to know if there are any motions that are likely to occur so they can set those in.

My state of practice procedure is that after an arraignment I usually file sometime called “(Omnibus motions”. Please see addendum B. These are “use it or loose it” motions.

I formulate my motions to reflect all the possibilities that may be raised for a defendant in the district or circuit court down the road. If you look at the motion attached to this book in the appendix, you will see that I’ve covered just about every possible motion that needs to be raised. The general thought process is that if it is not raised properly then you lose your right to do so. Later on in the case.

Despite the fact we file these motions, not all of these issues are litigated. In fact, many times the facts of the case do not even bring itself to be related to these type of motions or need for same. However, motions such as discovery requests, grand jury transfer request, motions to dismiss, 4th amendment suppression issues, speedy trial motions and others could be very instrumental in the defense of helping your client.

So, suppose the defendant is arraigned and they obtain a trial date. What happens next? Typically it depends on the jurisdiction. Currently there are only a couple counties in Maryland that use an online electronic filing system, however most of the counties are now using email and other electronic techniques as far as getting discovery to defendants attorneys. Between the time of the arraignment and the trial date there is usually a period where your lawyer should be conducting an investigation, obtaining statements from witnesses, obtaining information from police agencies as well as the state’s attorney and sometimes negotiating with the state’s attorneys office. It is not a time for idle hands. It is something that must be pushed earnestly so that the defendant can benefit from everything that is discovered.

Generally, state’s attorney’s offices must provide any information to the defense that is exculpatory in nature. That is, anything that can help their case. Nothing can be held back. The state must in fact provide every scintilla of evidence that pens to this this category. One of the main differences between the state and federal courts is that discovery is handled differently. In federal court a contractual agreement and understanding must be signed. On a state level, most discovery evidence is automatic and must be provided to the defendant.

The Defendant’s friend, the 4th Amendment

As a law student I will never forget how amazed and fascinated I was when I read the words of the 4th Amendment of the United States Constitution. That amendment is such a tenacious statement by the founders that strikes right at the heart of fighting back at the government.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particular described in a place to be searched, and the persons or things to be seized.”

If you think about it, those words hit the government right between the eyes. It’s amazing that our founders had the depth and for knowledge to understand that governments, police departments and other agencies tend to want to control the populace for their own purposes. The main methods they use to orchestrate that desire is searching and seizing items of citizens to be used against them.

Whenever I discuss the 4th amendment with a client it usually revolves around a “search” by the police. There are many situations where the 4th amendment does not apply because the government is not involved. Our bill of rights applies against the government. Whe law enforcement is involved citizens have a “expectation of privacy” afforded by the 4th Amendment. I explain to my clients that the 4th amendment is really broken down into two main provisions. First it limits and regulates the seizure of a “person” and second, it limits and regulates seizer of property.

Let’s talk about seizure of a “person” in our society. Obviously, seizure means an arrest or detention. There have been many supreme court cases and other state cases that talk about and define what a seizure actually means and in what circumstances it is applicable.

Generally, two elements must be present to constitute a seizure of a person. First, there must be some showing that the police prevented a person from leaving or going about their free will. Was the individual put in handcuffs? Were weapons used to prevent the individual from leaving the immediate area? Was there forceful or aggressive language by the police? Was there physical contact by the police or any kind of indication of authority? All these scenarios and control issues play a part as to whether the police prevented a person from leaving and thereby rendered them Arrested”, “stopped” or “seized”.

This issue has been litigated many times over the years. Various situations yield various results. I’ve often argued to courts that people react differently to police and authority. Police and investigators are experts at using that authority to try to obtain what they want. A person who has never had contact with the police in a any serious situation where they are being accused of a crime or even suspected of doing wrong doing, react differently and tend to want to cooperate. Usually because they are scared and intimidated. And believe me, police utilize these fear factors to get the result they want! The issue in these circumstances is whether or the not the individual had the ability to leave.

Piggybacking on the improper seizer issue of a person is the continued detention and questioning issue without giving Miranda rights. Miranda v. Arizona was a Supreme court case heard in 1966 that basically requires any police personal to advise a defendant who is being questioned about certain basic fundamental rights.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Circumstantially, I see many situations where a police officers may intimidated an individual and get them to discuss or talk about a situation where they really don’t exert authority as far as requiring them to stay and not leave the area. In other words the police place the game of arguing they never arrested nor detained the defendant and therefore Miranda was not required, I have argued successfully over the years that the mere presence of a police officer requesting an individual a certain act or discuss a certain subject could be influential and could be a situation where a reasonable search occurs. The officer says, “No I didn’t detain. It was a conversation where the Defendant was free to leave anytime”. But the reality is through body language, looks, physical presence and other techniques a Defendant may feel intimidated and therefore I believe Miranda should apply!

I will give you an example of a case I had a long time ago. I used to handle a tremendous amount of traffic stops where police officers in Maryland were pulling drivers over off the roadway and instead of simply approaching the driver and asking for a license and registration, the police officers would play games. They would approach the driver and ask for the license and registration but then start to engage them in discussion about general unimportant issues.

As they engaged in the conversation or discussion, they would be looking very carefully at the driver and also the contents of the vehicle. They would make very close observation. That unto itself is okay and is what a good police officer should do, however, these officers were drawing out the conversation and the detention and stop of the vehicle for quite a long period of time.

They would then also start to ask questions of the driver such as “where have you been”, “where are you going”, and “what is your agenda for the night”? They would even engage in conversation with the individual about their personal life. Many police officers have great instincts and use them very effectively. They would then push the conversations further by asking “do you have any drugs in the car or contraband”? The driver who was merely pulled over for a simple speeding ticket finds herself answering questions that are clearly outside the scope of the stop. The inevitable question by police then happens. “ Can we search your car’? Some officers will say or insinuate that they can hold you here until we call a dog sniffing unit. Wow! So now via a simple traffic stop they have corned you into allowing them to search the vehicle! In court guess what the police officer argues? Well judge she gave full voluntary consent to search the vehicle without coercin. Bull!

I argued to the court successfully on many occasions that that is an unreasonable detention and unreasonable seizure. Most of the individuals will not simply tell an office something like, “Hey officer, shut up I don’t have time to talk to you. Go run my tags and information and get it back to me as quickly as possible.” That is because people are polite but also because of the police intimidation factor. Many times police would continue to engage that driver and would find out that there are drugs in the vehicle or some other place or some other kind of criminal activity had occurred where they would normally have no probable cause or reasonable suspicion that a crime had occurred or was afoot.

This clearly is an “extension” of a reasonable traffic stop. A police officer’s duty is to simply stop the vehicle, gather liscense index information and mechanically run the tags and issue a citation. If during the course of a reasonable period of time that it takes an officer to do that, they notice that some other crime such a misdemeanor or a felony has occurred or is occurring, they absolutely have reasonable suspicion or even probable cause in some circumstances to continue the investigation.

The point is that in these situations police officers have adopted and warped into trying to use techniques to get around the 4th amendment. It is very important your lawyer understands the basic elements of the case law regarding the 4th amendment to make applicable arguments for you.

The second element regarding seizure of a person is that the defendant must actually submit to authority or the police officer. In other words an officer who tries to assert authority involved in a search is not a violation of the 4th amendment if in fact the party does not succumb. For example, if you are walking down the street and a police officer yells over to you to stop but you run away the 4th amendment, a seizure has not occurred for 4th amendment purposes.

One of the most powerful provisions of 4th amendment is the request for a warrant. Generally, thinking globally I always advise other lawyers and my clients that the best way to think about the 4th amendment is that the government must in fact have a warrant for an arrest or a search and seizure unless certain exceptions apply. Obviously there are quite a few exceptions.

For example, if probable cause is present when a police officer has a reasonable belief that a suspect has committed a crime or is guilty of a past felony prior to the arrest then the officer has the ability to arrest without a warrant. The same is relevant as far as arresting an individual to prevent their escape or to preserve evidence that a crime occurred.

There are a lot of exceptions as stated but one of the most relevant and commonly used circumstances police use to get around the 4th amendment is something called “exigent circumstances”.

An example of exigent circumstance is where an emergency occurs and a police officer has no choice but to either save property or life. It’s usually an emergency and the courts have said that is a clear exception to any warrant requirement. To make the circumstance exigent, probable cause must be applicable and the courts have said that “reasonable” grounds must exist as well.

There have been so many cases arguing different circumstances as to whether or not a particular set of facts are applicable to the 4th amendment, that there literally are thousands of precedents. One of the common grounds I always use in my 4th amendment arguments is the reasonableness factor. The courts have consistently said that searches and seizures under the 4th amendment must be “reasonable”. No excessive force has been used and reasonableness is the ultimate measure of the constitutionality of the 4th amendment.

I ask myself is the seizure reasonable? Is it reasonable from the government standpoint or the defendant’s standpoint? In this situation the courts should try to balance the degree of intrusion into an individual’s right for privacy, but also the need of the government to provide general public interest and any special needs police and various agencies may have in a given circumstance. The totality of the circumstances need to be looked at in each situation.

Whenever I look at a criminal case to analyze the facts, I always start with the 4th amendment. This is true whether it’s a DWI stop or whether or not it’s a drug investigation or any other type of serious criminal matter. This in my opinion is the ultimate battlegrounds between the government and individual liberties. A good defense attorney will strike back and argue vehemently against any state or federal government search if there is an unreasonable portion to the search. It is extremely important that defense lawyers hold that ground and are the individuals who prevent the government from crossing that line.

If you think about it, there really is no one else in our society that can do that! Obviously a defendant who has not completed law school and has not practiced law really does not understand the nuances of these cases. Literally, there are thousands of cases to understand and really try to get a grip on how the 4th amendment works and whether or not it’s applicable. I always START and END my cases on the presumption that the police have violated the 4th amendment. So many cases I have handled have turned on the fact that I have been able to suppress 4th amendment violations by the state and the government.

I think the ultimate penalty in any constitutional argument is the exclusionary law. The Supreme Court has said that if in fact the government violates the 4th amendment in any provision that the exclusionary rule applies. That rule is simply that if any evidence is obtained illegally, it cannot be used to prosecute the defendant. I say wow! The founders were brilliant in equalizing the playing field and with that ultimate penalty to the government. Truly it backs up the belief in a free society that we would rather 100 guilty people go free than 1 innocent person be convicted improperly by excessive prosecution of the government.

You may ask yourself, okay how does this apply to me and my situation or in a common criminal case? I have to tell you that out of the thousands of cases I’ve handled, I would say approximately 75% of those cases involve some analysis of the 4th amendment. An ordinary traffic spot where there is seizure of drugs or some other contraband always involves an exclusionary rule analysis. A home search warrant or any other intrusion by the government to obtain and grab evidence from a defendant to prosecute them also always pertains to the 4th amendment.

To successfully enforce the exclusionary rule, there are motions that must be filed immediately. They are called “use or lose it” motions and if the court is not made aware by your defense lawyer of her intent to suppress evidence, many times that argument could be waived. This is not applicable as such under the Maryland rules in the district court, but it does apply in the circuit courts and most definitely applies in the federal district court. The government must be put on notice that you are making that suppression argument.

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