Timeline & Overview of a Typical Criminal Case
This overview is meant to provide you with a broad understanding of what to expect in your Utah criminal defense case. The timeline for criminal cases differs widely depending on many different factors, but this graph below (which correlates with the subjects in bold on this page) should give you a general idea of what to expect.
A criminal case begins when there is evidence that a crime has been committed (CLICK HERE to learn the difference between felony crimes and misdemeanor crimes). Evidence of a crime is usually in the form of a citizen’s statement, or physical evidence.
Citizen’s statements can take the form of a victim’s statement, a 911 call, an eyewitness statement, or someone calling in a tip. Physical evidence usually consists of the discovery of drugs, weapons, stolen property, recordings, DNA, fake IDs, or anything else that can be linked to the commission of a crime. Click HERE to see an example of a victim’s statement, HERE for an eyewitness statement, HERE for a 911 call, or HERE to see what an evidence log containing physical evidence looks like.
After a police agency has some kind of evidence that a crime has been committed they will initiate an investigation. Typically there are four steps to a pre-arrest investigation. The police agency will (1) determine that a crime was actually committed; (2) determine who committed the crime; (3) collect evidence sufficient to make an arrest of the person they believe committed the crime; and (4) locate the offender and make an arrest.
To accomplish the pre-arrest investigation, law enforcement officers may do any or all of the following:
- Interview victims, witnesses, and suspects.
- Examine the crime scene and surrounding areas for evidence such as weapons, clothing, video footage, or DNA.
- Check records such as sign in or sign out sheets, computer files, or work logs.
- Search homes, cars, storage units, etc. for evidence such as stolen property, documents, or weapons.
- Surveillance of the suspect.
- Use undercover agents to gain information.
- Talk with friends, family, neighbors, or other acquaintances.
If a person is arrested at the scene of the crime, there is no need for a pre-arrest investigation.
CLICK HERE to learn more about what laws and constitutional rights protect defendants from certain police investigations.
Before any arrest can be made, a police officer must have probable cause. Probable cause exists when the police can point to some evidence that suggests a certain suspect probably committed the crime in question. A police officer does not usually need a warrant to make an arrest. If a warrant is needed to make an arrest, the police officer must present evidence to a judge who will then decide whether or not the evidence is sufficient to issue an arrest warrant. If the judge finds that the evidence is not sufficient to meet the “probable cause” standard, then the warrant will not be issued.
CLICK HERE to read more about when a police officer can make an arrest, and whether or not an arrest warrant is needed.
After the arrest, a police officer will take the individual to a police facility where the arresting officer can search the arrested person for evidence related to the crime. For example, if the arrest is drug related, the officer will search the person looking for drugs. That person will then be booked. Being booked usually means that the arrested person is photographed, fingerprinted, and his/her name, the time of arrival, and the offense for which the person was arrested, are all written in a log. A police officer may attempt to get a statement from the arrested individual at this time.
Once booked, the arrested person is usually allowed one telephone call. After the phone call, a more thorough search of the arrested person and the person’s belongings will take place. The arrested person will then either be placed in jail, or, for lesser crimes, the person may be released.
Police agencies across the country have established their own policies for what works best for their officers and in their facilities. Therefore, the steps outlined above may differ slightly between police agencies.
In addition to the search of the defendant’s person and his/her belongings upon arrest, the arresting police agency may place the defendant in a lineup (CLICK HERE for an example), have a witness view the defendant, or take a photo of the defendant to show to other potential witnesses. The police may also obtain handwriting samples, DNA, hair, etc. that can be compared to evidence found in other investigative efforts. Now that the defendant is in custody, questioning is much easier. Questioning officers have a duty to inform a defendant in custody of his/her Miranda rights. CLICK HERE to read more about Miranda rights.
The post arrest investigation will continue on throughout the case, perhaps consisting of the state talking with witnesses, obtaining search warrants, gathering documents, etc.
Normally the accused will contact an attorney for the first time after they know they are being investigated for a crime, or after they have been arrested. As soon as the accused contacts an attorney, their attorney will begin the defense investigation. The defense will contact witnesses, subpoena evidence, and gather information useful for the defense in both presenting their version of the facts and defending against the prosecution’s accusations.
Official Charge & Filing the Complaint
An initial criminal charge may be made by the arresting officer, but the prosecutor ultimately decides what a defendant should be charged with. A prosecutor has several options as he proceeds.
The prosecutor may move forward with exactly the same charges for which the police arrested the defendant, the prosecutor may add additional charges, or the prosecutor may waive some charges and move forward on others. A prosecutor may also decide to elevate an initial charge—for example, a 2nd degree felony to a 1st degree felony. The prosecutor then files a complaint, sometimes called a “charging document” or an “information,” with the court (see an example of a complaint here). A complaint is simply a document that details the crime the state has charged a person with.
Occasionally prosecutors, after reviewing all of the evidence, decide not to go ahead with any charge. In this scenario, no complaint will be filed, and the suspect will be released from police custody without ever having to go to trial.
First Appearance in Court & Misdemeanor Arraignment
The defendant’s first appearance in court is usually a very brief hearing in which a judge will inform the defendant of the official charge (e.g. possession of stolen property) and tell the defendant of his/her legal rights. If the defendant is accused of a misdemeanor, arraignment will take place during this first appearance. An arraignment is a formal reading of the criminal charges, by the judge, in the presence of the defendant. After the formal reading, the defendant enters a plea (e.g. guilty, not guilty). If the defendant is accused of a felony, the arraignment will take place after the preliminary hearing (see “Felony Arraignment” below).
The defendant will have no opportunity at this first appearance to present evidence or share his/her version of the facts. However, if desired, a defendant can present an affidavit (a sworn statement), usually through his/her attorney, which states the defendant’s side of the story.
During this first appearance, the court will also determine if the defendant is eligible for a public defender (a free attorney employed by the state). Eligibility for a public defender depends on the financial situation of the defendant.
Bail & Bail Bonds
After being booked, defendants are sometimes released from custody on their own recognizance. This means that the individual promises to appear in court at a later date. In other instances, defendants are held in custody and the court sets a bail amount. The bail amount is what has to be paid/guaranteed in order for the defendant to be released out of custody. There are several types of bonds that can be obtained by a defendant who does not have access to the cash necessary for bail:
- Property Bond. The accused, or someone acting on his/her behalf, puts up a piece of land or a house equal to the bail amount set by the court. If the defendant fails to appear for his/her court hearings, the state can take the land or house to recover the bail amount.
- Surety Bond. A third party agrees to be responsible for the bail amount for the defendant. This is usually done by a bail bondsman. Typically, a bail bondsman will immediately collect a percentage (10% – 15%) of the total bail amount, and will make a guarantee to the court that the defendant will appear on his/her scheduled court dates. If the defendant does not appear, the bail bondsman must pay the defendant’s total bail amount. Since the bail bondsman is taking a risk that the defendant may flee and the bondsman will be stuck paying the bail amount, bondsman often require that assets be produced that equal the face value of the bail amount. Here is an example of how this works: Court sets bail at $5,000. Bail bondsman collects a $500 non-refundable fee, and requires that some asset (a car, for example) is produced that is worth $5,000. If the defendant does not show up to court, the bail bondsman pays the court $5,000 and then takes permanent possession of the car also worth $5,000. If the defendant appears at all necessary court dates, then the car is returned to its owner.
- Cash Bond. Sometimes the court will set bail as a “cash only” bond. This simply means that the court will not accept anything besides cash for release of the defendant.
When a defendant has posted bail, the court sometimes imposes restrictions upon the defendant such as a requirement for home detention, drug testing, mandatory check-in calls to the police, relinquishing passports, etc.
The purpose of a preliminary hearing is to force the state to present evidence showing that it has probable cause to believe the defendant committed the crime he/she is charged with. This means that the prosecutor has to show the judge that it is more likely than not that the defendant committed the crime. This is a very low standard and fairly easy for any prosecutor to meet, especially considering the “beyond a reasonable doubt” standard that must be met at trial. Think of it this way, to meet the “probable cause” standard a prosecutor must show that there is a 51% chance the defendant committed the crime. To meet the “beyond a reasonable doubt” standard a prosecutor must show there is about a 95% chance the defendant committed the crime.
If the state succeeds in showing it has probable cause that the defendant committed the crime, the case will go forward. If the state does not succeed, the case will be dismissed and the defendant must be released.
A prosecutor will almost always ask the defense attorney if the defendant will waive the preliminary hearing. Here are a few things each defendant should consider when deciding whether to waive a preliminary hearing:
Three Reasons to Have the Preliminary Hearing:
First, a preliminary hearing sometimes provides the defendant and defense attorney with a sense of the prosecution’s ideas, legal theories, and strategies that he will use later on in trial. Knowing this information can help you prepare.
Second, the defendant and defense attorney will hear witness’ testimony at the preliminary hearing and have the opportunity to cross examine those witnesses. This can be an opportunity for the defense to gather useful information and get an idea of what the witnesses might say at trial and how comfortable the witness is on the stand. Chances are, the same witnesses that testify at the preliminary hearing will also testify at trial. Knowing how they reacted to questioning the first time around can be helpful when preparing to examine them on the witness stand the second time around.
Third, with the information learned during a preliminary hearing an attorney may decide to take action and file certain motions with the court. For example, if at the preliminary hearing a witness testifies as to the defendant’s prior criminal record, the defense attorney can anticipate that the prosecution intends to use defendant’s prior criminal record as evidence at trial, and can therefore petition the court to preclude that criminal record from coming in as evidence.
Three Reasons NOT to Have the Preliminary Hearing:
First, waiving a preliminary hearing can create “good will” with the prosecutor. Prosecutors typically don’t like to have preliminary hearings because they require a fair amount of work to prepare for. When a defendant waives a preliminary hearing, he is lightening the prosecutor’s work load and showing a sign of good faith. Prosecutors often appreciate this and may be more likely down the road to cut you a slightly better deal because you cut them a deal.
Second, waiving a preliminary hearing can be a bargaining chip for the defendant, e.g. “I will agree to waive the preliminary hearing if the prosecutor reduces my charges from a second degree felony to a third degree felony.”
Third, sometimes preliminary hearings are a waste of time for everyone. Sometimes the defendant and his attorney already know what evidence the prosecution is going to put on to establish probable cause and the prosecutor is not budging on any plea deals. In this case, it may be more productive for the defense attorney to spend his/her time on something more pressing and crucial to your defense.
Utah does not typically have grand jury proceedings. However, when a grand jury is called it takes the place of a preliminary hearing. A grand jury is a private hearing (rather than the public, preliminary hearing) where the prosecutor presents evidence to a jury and the jury decides whether to file an indictment or to dismiss the case. An indictment is a formal accusation that a defendant has committed a crime. The defense attorney is not allowed to be present during a grand jury proceeding.
Felony Arraignment and Entering a Plea
After the preliminary hearing, a judge will typically set a date for the defendant to come back for arraignment. This is where the defendant is brought before the court, informed of the charges against him, and asked to enter a plea.
In Utah, there are six kinds of possible pleas: (1) Not Guilty; (2) Guilty; (3) No Contest; (4) Not Guilty by Reason of Insanity; (5) Guilty with a mental illness at the time of the offense; and (6) An alternative plea of not guilty or not guilty by reason of insanity.
At this stage, a defendant typically pleads not guilty because either, (1) the defendant’s intention is to go to trial, or (2) the defendant is willing to change his ‘not guilty’ plea to a ‘guilty’ plea after the prosecutor offers a deal. It’s a painless process to change a ‘not guilty’ plea to a ‘guilty’ plea, but there are several complications in changing a ‘guilty’ plea to a ‘not guilty’ plea.
After a defendant as entered his/her plea, the judge will usually set a trial date for a few months down the road.
Hearings, Appearances in Court, and Pre-Trial Motions
After the defendant’s preliminary hearing and indictment, there will be several times the defendant comes back to court before finally going to trial. These appearances in court may be for the purpose of updating the judge concerning the progress of the case, alerting the judge to certain issues, negotiating with the prosecutor, or the hearing of a “motion.” A “motion” is a request, by the prosecutor or the defendant, for the court to take certain action on an issue.
Below are a few examples of motions that can be filed with the court.
- Motion to Suppress. A motion to suppress seeks an order from the court to withhold certain evidence from being used at trial, and is usually filed when the defendant feels the police violated his constitutional rights in order to obtain evidence. For example, a defendant may petition the court to withhold evidence of his confession, a 911 call, the presence of drugs at the crime scene, or items seized in a search. CLICK HERE to see an example of a motion to suppress.
- Motion in Limine. While the line between a motion to suppress and a motion in limine is quite blurry, generally, a motion in limine is a motion to exclude certain evidence from being brought into trial because the evidence violates the “Utah Rules of Evidence.” This is different than a motion to suppress because a motion to suppress deals with evidence that may not violate the Utah Rules of Evidence, but may violate the defendant’s constitutional rights. A motion in limine may seek to exclude things such as evidence of the defendant’s prior criminal record, certain evidence that is irrelevant to the crime, medical records, defendant’s financial records, a witness statement, or evidence that may cause the jury to have unfair prejudice towards the defendant.
- Motion to Compel Discovery. The term “discovery” refers to the act uncovering of evidence. Both the defendant and the prosecutor are entitled to see certain evidence that is being held by the other. A motion to compel discovery occurs when one of the parties is not allowing the other to see certain evidence they are entitled to see. For example, the defendant may request a copy of a video recording taken from a police dash cam during defendant’s arrest. If the prosecutor does not provide that video to the defendant, a defendant may file a motion to compel the discovery. If the judge grants the motion, the prosecutor must provide the defendant with the video.
- Any other Motions. A motion can be filed for just about any purpose that the defense or prosecutor can think up and put down on paper. For example, the defense may file a motion to have an independent agency test any DNA in evidence, have the jury visit the scene of a crime, motion to restrict the publicity of a case, motion to withdraw a guilty plea, motion to reduce bond, motion to weigh contraband, etc.
After the defense decides to file a motion, they will schedule a hearing and subpoena witnesses to come to that hearing. At the hearing, both the prosecution and the defense will put on evidence in an attempt to persuade the judge to rule on the motion in their favor. A judge will typically make a decision to grant or deny the motion at the conclusion of the hearing, but occasionally a judge may not rule on the motion for few days.
If there is no plea agreement, then a trial will ensue. Criminal cases are usually presented to a jury. In a Utah criminal case, the jury will decide if the defendant is guilty or not guilty. A jury trial has the following aspects:
- Jury Selection. The Sixth Amendment of the U.S. Constitution grants a criminal defendant the right to be tried by a jury of their peers. Sometimes a jury consists of twelve jurors, sometimes nine, but in a Utah felony case a jury can never have fewer than eight jurors. Each member of the jury is selected from the people living within the jurisdiction of the court that tries the case (e.g. Weber county residents will sit on the jury in a Weber county courthouse). Usually, several dozen people are called to the courthouse for one case—this is called a “jury pool.” Not all of the people in this jury pool will actually be on the jury. Instead, the defense and the prosecution will pick which jurors serve on the jury. Both the defense and the prosecution usually have some kind of idea as to which type of person will be most beneficial for their case. The judge then permits the defense and the prosecution to ask questions to the jurors. Based on a juror’s answers to these questions, the defense or the prosecution may choose to “strike” that juror. The defense and prosecution can usually “strike,” or get rid of, four or five jurors each. For example, if the prosecution asks the jurors, “do any of you have a problem believing police officers,” and one of the jurors says “yes,” it is likely the prosecution will “strike” that juror from the pool and he/she will be sent home. The prosecutor may do this because he intends to have a police officer testify during the trial and wants jurors who are going to believe the police officer’s testimony.
- Opening Statements. After a jury is selected, the attorney on each side will present an overview of their version of the case to the jury, and forecast what they believe the evidence will show.
- State/Prosecution’s Case in Chief. After opening statements, the prosecutor/state will present all of its evidence in an attempt to convince the jury that the defendant is guilty beyond a reasonable doubt. It’s important to note that every crime has certain “elements” that the prosecutor must prove in order for the defendant to be found guilty. For more information on this, visit our “How do I Win My Case” page. A prosecutor will attempt to show the defendant’s guilt through the use of witness testimony, victim testimony, documents, video recordings, audio recordings, records—or in short, all the “evidence.” While the plaintiff is presenting their case in chief, the defense will have the opportunity to cross examine witnesses (ask questions to the state’s witnesses in court), object (e.g. object to the plaintiff showing a certain document to the jury), and make motions.
- Defense’s Case in Chief. After the state has presented its case in chief, the defense will now put on all if its evidence in order to convince the jury that the defendant is not guilty. There are several common defenses used in a Utah criminal defense case, such as: self defense, alibi, insanity, entrapment, duress, and defense of habitation. The same rights afforded to the defense during the state’s case in chief are now afforded to the state during the defense’s case in chief (e.g. to cross examine witnesses and object).
- Closing Arguments. These arguments are calculated to point out to the jury in very plain terms why the specific evidence presented should lead the jury to conclude one way or the other.
- Jury Instructions. After closing arguments the judge will instruct the jury as to the law that should be applied. This law, along with other jury instructions, is put into a packet and given to the jury for reference. The jury’s charge is to think about all of the evidence presented to them, apply that evidence to the law, and decide if the defendant is guilty or not guilty.
- Jury Deliberations & Verdict. After the jury has been instructed, they are removed from the courtroom to discuss the case and come to a conclusion as to whether or not the defendant is guilty or not guilty. In a Utah criminal case, a jury’s decision must be unanimous. Once the jury has reached a verdict, they will be brought into the court room and the judge will read the verdict. If all of the jurors cannot agree on a verdict, then the jury is a “hung jury,” and there will be a new trial in front of a different jury.
- Guilty Verdict. If the defendant is found guilty, and the defendant is out on bail or was never taken into custody, the defendant will probably be taken into custody at that time. The defendant will return to court at a later day for sentencing (see sentencing hearing below).
- Not Guilty Verdict. If the defendant is found not guilty and the defendant was previously in custody, the defendant will likely need to go back to a holding facility or jail and be processed before release. If the defendant was not in custody, he/she will not need to be processed.
If a defendant chooses to waive their right to jury trial, the defendant will have a bench trial. In a bench trial, the defense and prosecution put on evidence before a judge, not a jury. At the conclusion of the trial, the judge will make a finding of guilty or not guilty.
After a defendant has been found guilty, his/her sentence is decided by the judge. Typically a government agency (in Utah, Adult Probation and Parole, or AP&P) will prepare a pre-sentence report based on several factors, including the defendant’s prior convictions, probation and parole history, personal history, friends, education, gang affiliation, and employment history. AP&P will generally make a suggestion as to what they believe the sentence should be, but the judge may deviate from this suggestion.
The judge has three basic types of sentences available:
- Financial sanctions. The judge can impose fines and restitution orders on the offender.
- Release. The judge may release the offender into the community with or without restrictions. Restrictions the judge may impose on the offender might be probation or house arrest.
- Incarceration. The judge may sentence the offender to time in jail or prison.
Both the defense and the prosecution will have the opportunity to persuade the judge towards one outcome or another. In some cases, witnesses may be called. For example, the prosecution often has a victim speak to the judge about the harm the defendant has caused him/her and the victim frequently will ask the judge to impose a more severe sentence. Or, the defense has one of the defendant’s children, or a sick grandmother the defendant takes care of, speak to the court concerning the hardship it would cause on him/her if the defendant was to be incarcerated.
In Utah, the convicted defendant is allowed to appeal his/her conviction and/or the sentence. In most cases, the convicted must file a notice of appeal within 30 days from the time of judgment. If a defendant is found not guilty by a jury, the prosecution may not appeal because this violates the “double jeopardy” rule. Grounds for appeal may be, among other things, ineffective assistance of legal counsel, improper admission of evidence, false arrest, jury misconduct, prosecutorial misconduct, or improper exclusion of evidence.
The reversal rate in felony cases in the United States is between 5 – 10%. This statistic also includes those cases that were only partially reversed.