Full Answer
If the defendant requests an attorney, the court cannot conduct the hearing without ensuring that the defendant has private counsel or appointing an attorney—such as a public defender—to represent the defendant.
At the first court hearing, unrepresented defendants generally can ask the court for more time to find and retain private counsel or, if they can’t afford an attorney, to have one appointed. The Fifth Amendment right to counsel applies during the criminal investigation stage, when a person is “in custody” and being questioned.
In criminal cases, the defendant is also referred to as the accused. In criminal law, a defendant is anyone tried under the court of law as the person who committed the crime. A defendant is usually taken into custody by police via an arrest warrant. With civil lawsuits, defendants usually appear in court after receiving a summons.
The people who most commonly speak at a sentencing hearing are the prosecutors, the defense attorney, the victims, and the defendant. Rule 32 of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak to the court before a sentence is imposed.
BACK TO TOP. I. Impeach: to discredit the truthfulness of a witness. Indictment: a formal written accusation, made by a grand jury after submission by the prosecutor and filed in a court, alleging that a specific person committed a specific crime.
Examination, Direct Examination, Examination-in-chief: The questions which the lawyer asks his own client or witnesses called by him.
jurisdictionjurisdiction - (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. Some issues can be heard in both state and federal courts.
Preliminary hearings serve to protect the defendant from unfounded criminal charges—making sure the prosecutor has sufficient evidence to allow a criminal trial to go forward.
Discovery by interrogatories is a procedure whereby a party or its representative is required to answer in writing, and usually on oath, specific questions prior to the trial, which answers may be tendered against the answering party as evidence in the trial.
SELECTIVE SILENCE. For the purposes of this note post-Miranda “selective silence” refers primarily to a defendant's refusal to answer some, but not all, of a police officer's or investigator's questions during an interrogation in which the defendant initially waived his right to silence.
Types of courts Basic distinctions must be made between criminal and civil courts, between courts of general jurisdiction and those of limited jurisdiction, and between appellate and trial courts. There are also constitutional, federal, and transnational courts.
to be more fully informedA type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certiorari comes from Law Latin and means "to be more fully informed." A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it.
the Supreme CourtOriginal jurisdiction means that the Supreme Court is the first, and only, Court to hear a case.
Who needs to attend? Other than in exceptional cases, the representatives from both parties must be in attendance at a preliminary hearing. Where the Tribunal need to decide a preliminary issue, witnesses may also need to attend.
At hearings, the court relies on written declarations and your arguments. Hearings can determine temporary, agreed, or some procedural matters. The trial is where you give evidence and arguments for the judge to use in making a final decision.
The court may set any criminal case for a pre-trial hearing before it is set for trial. A pre-trial is a meeting with the state's attorney and the defendant and/or his or her attorney to determine the following: Any motions that the defendant or defendant's attorney wants to file.
At the conclusion of a hearing: the judge makes a finding as to, whether or not the defendant violated any terms of his/her probationary sentence. If a defendant did not violate the terms, then nothing happens. The defendant stays on probation and the conditions remain the same as before the hearing.
A probation violation hearing is a legal proceeding in a criminal court case whereby a judge determines whether or not the defendant is in violation of the terms and conditions of probation . This can occur for defendants serving either misdemeanor probation or felony probation.
If a party is found in violation of probation, then the judge may: reinstate the probation on the same terms and conditions, modify the conditions of probation with new, stricter terms, or. revoke the probation and place the person in custody.
Bench warrants get their name because they are issued from the “bench,” which means “ the judge .”. Bench warrants are not the same things as arrest warrants. Arrest warrants are issued because of suspected criminal activity. Bench warrants get issued for such things like: a probation violation,
If a person violates a condition, then: a probation officer (PO) or a police officer can arrest that person, and. bring him/her to a hearing. In addition, a judge may issue a bench warrant for the person’s arrest. Example: Sophia is convicted of shoplifting.
This is awarded in lieu of a jail sentence. The term for this type of probation is typically up to one year unless the crime statute specifies otherwise. 2.
A person may or may not be able to bail out of jail after violating probationary terms. Sometimes the judge will issue a “no bail hold.”. Other times the judge may set bail. Still other times the judge may release the person just on a promise to return to court for the hearing. In most states, bail is allowed if:
This is to protect any confidential information of the defendant, or confidential information between the defendant and his lawyer. 2.
During the hearing, the judge hears arguments from the defendant and the attorney on: why the lawyer should be removed from the case, and. why the lawyer should remain on the case. It is up to the defendant to show that the public defender’s representation has been ineffective or that a conflict is present.
A defendant typically brings the motion because he wants to fire his public defender as his defense counsel for one of the following reasons: inadequate or ineffective assistance of counsel, legal malpractice, or. a conflict between the attorney and defendant.
A Marsden hearing is when the judge rules on the Marsden motion. If he grants the motion, the public defender is removed from the case and the judge will appoint an alternate public defender. If the judge denies the motion, then the public defender remains as the defendant’s lawyer.
if the complaint arises during trial, a new defense lawyer can be appointed or hired, if the complaint arises after trial and relates to a lawyer’s actions during trial, a new trial may be ordered, or. if the complaint arises from a sentencing hearing, the court will dismiss the sentence and resentence the defendant. 5.
If the judge denies such motion, then the public defender remains as the defendant’s lawyer.
address concerns about potential prosecutorial misconduct or jury misconduct. Note that a defendant’s constitutional right to counsel is guaranteed by the Sixth Amendment, which provides for the assistance of counsel for all accused persons. This right is not limited to legal representation at trial.
A plea hearing, which occurs before a judge with all parties present, is the step right before the trial itself. It's the forum for any last-ditch efforts to get the case resolved without the need for a costly and oftentimes burdensome trial.
The district attorney decides if charges should be brought against you, and then the court proceedings begin. If you’ve been charged with a felony, you'll have a preliminary hearing and, if held to answer for the charges, you'll be arraigned.
Some people argue that plea bargaining shouldn't be available because it doesn't allow for justice to run its theoretically impartial course.
For misdemeanors, you'll enter a plea at your initial appearance. There's no right to a preliminary hearing in a misdemeanor case. For felonies -- after your arraignment -- your case may be set for a status conference to discuss the case and see if you can come to a resolution without going to trial. If you strike a deal, you’ll enter your plea ...
The people who most commonly speak at a sentencing hearing are the prosecutors, the defense attorney, the victims, ...
In misdemeanor cases, judges frequently hand down sentences immediately after the defendant pleads guilty or no contest or is found guilty after trial. Where the possibility of significant incarceration exists, however, the judge might not impose a sentence until some days or weeks later in a separately scheduled sentencing hearing.
Rule 32 of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak to the court before a sentence is imposed. As can be expected, the prosecutor's comments will tend to highlight aggravating factors in the crime and past criminal behavior on the part of the defendant.
It used to be that the victim played a minimal role in a criminal prosecution. The victim's only job, if any, was to testify at trial about the circumstances of the offense. Now victims participate more, from the beginning, when they are involved in prosecutors' pretrial investigations, to later, when they give statements in court to the judge during sentencing hearings.
No one, not even defense counsel, may be able to speak as persuasively as the person facing the sentence. Thus, defendants also have a right to speak on their own behalf before the judge imposes the sentence. This is known as the defendant's right of allocution.
A judge has the most prominent of all the roles in a court of law. The judge is either a man or a woman who presides over a court of law. Most judges preside alone but sometimes preside as part of a panel of judges or other legal professionals. A judge typically presides over a physical courtroom facility, but sometimes conducts court via two-way ...
A defendant is any party who is required to answer the complaint of a plaintiff in a civil lawsuit before a court or any party who has been formally charged or accused of violating a criminal statute. In criminal cases, the defendant is also referred to as the accused. In criminal law, a defendant is anyone tried under the court ...
Potential jurors are selected by legal counsel (lawyers and attorneys) from what is known as a jury pool. The pool is created from citizens who are chosen at random in the local jurisdiction. Those chosen jurors listen and observe as the court case is presented by the legal counsel of the plaintiff and the defendant.
A plaintiff, also known as a claimant or complainant, is the legal term used in some jurisdictions for the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue a judgment in favor of the plaintiff and make the appropriate court order (e.g., an order for damages).
A coroner is a public official that is elected by the local government to determine the reasons and circumstances leading to the death of the person in suspicious cases. The coroner’s jury is formed to increase the confidence of the people for the investigation conducted by the coroner. There are other roles in a court of law.
In many states throughout the United States, a judge is addressed verbally as “Your Honor” or “Judge” when presiding over the court. “Judge” may be more commonly used by attorneys and staff, while either may be commonly used by the plaintiff or defendant in the court room. In some situations, you may hear the term “Justice ...
A jury, which is sometimes referred to as a court jury, is a sworn body of people convened to render an impartial verdict (which is basically the finding of fact on a legal-related question) officially submitted to them by a court, or to set a penalty or judgment in a court case.
Because the witnesses are asked to testify by one party or the other, they are often referred to as plaintiff's witnesses, government witnesses, or defense witnesses.
Criminal defendants may be represented by a public defender, a lawyer appointed by the court, or a private attorney hired by the defendant. In a civil case, parties wanting a lawyer to represent them must hire their own lawyer.
The court interpreter's job is to interpret exactly what the witness or defendant says, without commenting on it, even if the interpreter believes the person is lying. If a witness doesn't understand a question, the interpreter may not use his or her own words to explain.
The court reporter sits near the witness stand in the courtroom and records everything that is said during the trial (or introduced into evidence) by typing it on a stenographic machine or by making an electronic sound recording. This becomes the official record of the trial. The court reporter also produces a written transcript of the proceedings if either party appeals the case or requests a transcript. Court reporters don't work only in the courtroom. They also record depositions in attorneys' offices and some conferences in judges' chambers.#N#The great majority of court reporters use a stenotype, a machine that translates keystrokes into symbols that correspond to the spoken word. Some use shorthand and a few use a steno mask, repeating everything that is said in the courtroom into a mask connected to a tape recorder, and transcribing it later. Finally, electronic sound recording uses microphones placed in the courtroom to record proceedings on a multi-track tape, which is monitored by a clerk's office employee (who need not be trained as a court reporter).
The courtroom clerk (sometimes called the courtroom deputy) is usually seated in the courtroom near the judge. The courtroom clerk administers oaths to witnesses and interpreters, takes care of records and exhibits, keeps minutes of proceedings, prepares judgment and verdict forms, and generally helps the judge keep the trial running smoothly. The courtroom deputy is usually employed by the office of the clerk of court.
Rather, the interpreter translates the witness's request for explanation to the attorney (or whoever asked the question), and that person must explain or rephrase what he or she said. The interpreter then translates that explanation or rephrasing for the witness.
The Parties. The people or entities who are directly involved in a lawsuit are called parties. They are plaintiffs (those who are suing in a civil case) or defendants (those being sued in a civil case or accused in criminal cases). The parties may be present at the counsel tables with their lawyers during the trial.
In some states, the respondent's failure to appear allows the judge to grant a permanent order automatically. If the respondent appears and doesn't contest the order, the ex parte order will convert to a permanent order without any testimony. If the respondent appears and objects to the order, there will be a trial.
At the full hearing, you and the respondent present evidence through testimony and any other documents you may have, such as photos, hospital records, and police reports. The respondent can object to the ex parte order. The judge must decide whether to issue a permanent order to replace the temporary ex parte order.
If the judge doesn't believe you need a permanent order, the judge will dismiss the petition and vacate, or cancel, the ex parte order. If you fail to appear at the hearing, the judge will dismiss the order. If the respondent fails to appear, it's likely you will receive a permanent order that is effective for approximately one year.
Some states require a full hearing to occur within 10 days, while others require a full hearing in 14 to 20 days. The purpose of the hearing is to make sure the other party has been given their due process rights. If the judge denies your ex parte application, a hearing may still be held shortly after the denial.
What Happens After the Judge Reviews the Ex Parte Motion? The judge can grant the ex parte motion and issue a temporary order, such as a temporary full custody order or a temporary restraining order. Because the other party was not present, the order is only temporary. Some examples of ex parte orders are orders that:
In emergency situations, an ex parte motion provides an exception to the rules of due process by allowing you to petition the court without having to notify or serve the other parties involved in your case. If the judge grants the ex parte order, the order is only temporary. The judge will hold a full hearing within a short period of time.
In other states, such as California, you must give notice to the other party the day before the emergency hearing or there's a risk of having the request denied. California's requirement of notice is unnecessary, though, if you can prove there's a serious risk of violence if the ex parte order is not granted.
A defendant (i.e., their lawyer) is permitted to confront their accused, cross-examine the witnesses, and make arguments regarding the sufficiency of the evidence and the proper grading of the charges. The district attorney will present evidence to show that this case should go to trial and the charges against the defendant are warranted. ...
The best-case scenario is that the charges against you are dropped or reduced. You also have the opportunity to reduce your bail. Therefore, it makes sense to be aggressive at the preliminary hearing. On the other hand, there’s not much to lose at a preliminary hearing. You’ve already been charged with the crimes.
In McClelland, the Defendant was accused of sexual assaulting a minor. At the preliminary hearing the minor did not testify, but instead the State Trooper who investigated the matter was called as the sole witness at the preliminary hearing.
The Court states, “The primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. ”. Commonwealth ex rel. Maisenhelder v.
The courts in Philadelphia, PA have long recognized that a preliminary hearing or probable cause hearing is an important step in the criminal justice process. In the Philadelphia Court of Common Pleas, there is a long-standing practice of dismissing charges if a witness does not show up at the preliminary hearing.
Its purpose is to ensure that there is probable cause for the arrest and that there is enough evidence for the charge to proceed to trial.
Oftentimes, if the eyewitness does not appear in court, then the Commonwealth lacks a big piece of their evidence, and the case may be dismissed. Previously in Pennsylvania, it has been unclear whether or not a defendant can be held over for court based solely on hearsay evidence.
However, statements obtained in violation of the Fifth or Sixth Amendment are admissible for impeachment purposes. For example, if a defendant’s testimony is inconsistent with prior statements to police, the prior illegally obtained statements are admissible to show the inconsistency and impeach the defendant’s testimony.
In other words, a person has the right to have an attorney present when the person is in custody and is being questioned. For purposes of the Fifth Amendment, the term “in custody” means the person is formally arrested or is otherwise deprived of freedom in a significant way. An “interrogation” refers to express questioning ...
To validly waive the Sixth Amendment right to counsel, the defendant must be informed of the dangers and disadvantages of self-representation—meaning, the judge must determine that the defendant knew of the right to be represented by an attorney and intentionally waived that right.
The right to counsel under the Sixth Amendment means that criminal defendants are entitled to the “effective” assistance of counsel. An attorney’s assistance is considered to be ineffective if: 1 the attorney’s representation was deficient as measured by an objective standard of reasonableness, considering all the circumstances, including professional customs, and 2 it’s reasonably probable that the outcome of the trial was affected by the attorney’s errors or conduct.
The Sixth Amendment Right to Counsel. The Sixth Amendment guarantees the assistance of counsel in criminal proceedings. If a defendant can’t afford to hire an attorney, the court will appoint one at the government’s expense. The Sixth Amendment right to counsel applies when the government’s role shifts from investigating a suspect ...
To invoke the right to counsel, a person must “unambiguously” request the presence of an attorney. The request must be clear enough that a reasonable officer would understand the statement to be a request for an attorney. Once the right to counsel has been invoked, the Fifth Amendment prohibits questioning by the police without counsel present ...
Furthermore, if the accused is released from the custodial interrogation for at least 14 days , police can reinitiate questioning.