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Criminal Investigation and Prosecution Procedure

The following is a condensed version of the procedural steps in a criminal investigation and prosecution. However, there are numerous exceptions depending upon the type of criminal case. At any time during a criminal prosecution a defendant may plead guilty which allows the case to move directly to the sentencing phase, thereby bypassing the trial phase. The following example encompasses a routine criminal case from start to finish.

1. Crime (felony or misdemeanor) committed

2. Police investigation i.e. eyewitness interviews; evidence collection; execution of search warrants or wiretaps; etc.

3. Arrest of perpetrator based upon reasonable cause to believe that he is the one who committed the crime. Defendant transported to police station for booking procedure where he is searched, photographed, fingerprinted.

4. Defendant transported to court for arraignment before a neutral magistrate (judge) who will furnish the defendant with a copy of the police officer’s accusatory instrument (formal written criminal charges), explain his constitutional rights, and set bail in an appropriate amount to insure the presence of the defendant in court for all future appearances. If appropriate, the court will issue a protective order in favor of the victim. The court will then adjourn the case for the appearance of a defense attorney.

If the defendant is charged with a felony crime, then he is afforded a preliminary hearing before a local criminal court judge whereby the prosecution must present witnesses to establish reasonable cause to believe that the defendant committed the crime. At the hearing, which must be conducted approximately six days after the defendant’s arrest, the defendant can offer evidence in his own behalf and cross-examine the prosecution witnesses. If the court rules that there is sufficient evidence, then the defendant will be bound over for action by the Chemung County Grand Jury. The grand jury is composed of 23 citizens who hear felony cases two days a month. They will decide whether there is legal sufficient credible evidence to determine whether it is more reasonable than not that the defendant committed a crime. The grand jury will then vote an indictment, which is presented to a county court judge who will set a date for arraignment. At arraignment the defendant will be advised of his constitutional rights, the charges against him, and the amount of bail he must post to remain at liberty.

5. Defense attorney will submit motion papers requesting to review certain evidence held by the police; i.e. statements made by the defendant, photographs of the crime, lab reports, audio tapes, video tapes, scientific reports, and medical reports. Defense attorney may make several motions to dismiss the case due to some technical error or may move to suppress different types of evidence so that they may not be used by the prosecution at trial to convict the defendant; i.e. statements made by the defendant to police, evidence seized form the person or home of the defendant, eye-witness identification procedures and criminal history of the defendant.

6. Pre-trial conference—The judge, prosecutor and defense attorney will meet in private to discuss issues surrounding the case, trial dates, need for any pre-trial hearings involving the defendant’s motion to suppress as recited above, and plea offers; i.e. if the defendant pleads guilty what sentence the court would impose.

7. Pre-trial suppression hearings are held after sufficient written motions have been made by the defendant attacking the constitutionality of, statements made by the defendant to police, property seized from the defendant, and/or improper police identification procedures. At the hearing the prosecution must present evidence proving the constitutionality of the police procedures. Defendant has a right to cross-examine police witnesses and present witnesses in his own behalf. Following the hearing, the trial court will make a ruling either granting suppression of the above evidence or denying the defendant’s motion to suppress.

8. Trial—jury selection, opening statements, prosecution’s direct case consisting of testimonial evidence and physical evidence (i.e.; blood, finger prints, DNA, gun, etc.), defendant’s direct case, summations, judge charges jury on the applicable law, jury deliberates and renders a verdict (i.e.; guilty or not guilty). If the 12 jurors cannot unanimously agree as to a verdict the court will declare a mistrial and the case will have to be tried all over again in front of a new jury.

9. If the defendant has been found guilty, the court will then set a date for sentencing. The probation department will do a background investigation of the defendant’s family, employment record, military record, and substance abuse record. The probation department will also contact the victim to report how the defendant’s actions have affected the victim’s life.

110. On date of sentencing the court will entertain recommendations from the victim, the prosecutor, defense attorney, and defendant. Then and only then will the trial judge pronounce sentence.

111. The defendant must file a notice of motion appealing his conviction within 30 days after the date of his sentence. At some future date he will request a copy of the record (trial transcripts) so that he can file an appeal and legal brief claiming that he did not receive a fair trial. The prosecution will file a brief in opposition and the case will be schedule for oral argument before a five-judge panel of the Third Department Appellate Division of the New York State Supreme Court, located in Albany, New York. If the conviction is upheld, then the defendant can appeal to the highest court in New York State, the Court of Appeals. If his conviction is upheld he can then appeal to the Federal Court system for review.