At the initial appearance the court will read the defendant the charges against her, but typically will not ask for a plea; rather, the court will ask whether the defendant is being represented and, if not, will see if the defendant wants to retain private counsel or qualifies for a public defender. If the defendant seeks private counsel and does not qualify for a legal defender, the court may set the matter over for another roll call in order to give the defendant more time to retain an attorney of his choice. The court may also address lowering bail or releasing the defendant on his own recognizance, which is the defendant’s oral promise that he will attend all the hearings. The court typically orders, as a condition of release on defendant’s own recognizance, that the defendant be booked and released at the local jail. This process usually takes from one to two hours and entails getting a photograph taken, fingerprints, and providing current contact information to the jail for tracking purposes. It may also entail making arrangements with pre-trial services and signing a contract whereby the defendant agrees to doing certain things while pre-trial services supervises her/him while s/he is going through the litigation process. Pre-trial services is an agency that monitors a defendant to ensure s/he does not flee the state, makes all his/her court appearances, possibly participates in random urinary analyses during the litigation process, and whatever else the court deems appropriate as a condition in not having to post bail either through the court or a bail bondsman, or having a combination of a release to pretrial services and a reduction in bail.
Defense and prosecuting attorneys meet to exchange evidence and discuss possible plea offers. The defense attorney often obtains from the prosecutor “discovery,” or evidence, that has been previously requested but not yet received. If the discovery is not overly voluminous, the defendant and her attorney will conference over the evidence at the roll call prior to addressing the court in order to advise the court on whether the defendant will exercise his legal right to make the prosecutor put on a preliminary hearing. Many times the prosecutor will make plea offers conditioned on the defendant waiving his right to a preliminary hearing. Sometimes this waiver is in defendant’s best interest; however, other times the defendant should not waive this hearing. Having competent legal counsel to assist a defendant in making this choice is crucial. Waiving a preliminary hearing in many cases is akin to shooting oneself in the foot, as these hearings give defendant an opportunity to thoroughly cross examine accusing witnesses and may reveal motives to lie, inconsistencies in prior testimony, possible alibis, or other testimony that can help a defendant demonstrate her innocence, or establish reasonable doubt (for future proceedings) that the defendant really committed the alleged crimes. If the parties do not reach a resolution at the roll call, the court will ask the defendant whether he wants the prosecutor to put on a preliminary hearing.
At a preliminary hearing, the prosecutor has the burden of proving, by the probable cause standard, each of the elements of the charges brought against the defendant. The probable cause standard is a very low evidentiary standard. Simply put, if the prosecutor can show there is a probability that a crime was committed, and that the defendant was probably the one that committed it, the charges will be “bound over” for trial. Elements of a particular charge vary from one charge to the next. For example, the crime of Sexual Abuse of a Child, a second degree felony, contains the following elements:
If, under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, or an attempt to commit any of these offenses, the actor: (1) touches the anus, buttocks, or genitalia of any child, the breast of a female child, or otherwise takes indecent liberties with a child, or cause a child to take indecent liberties with the actor or another (2) with the intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person regardless of the sex of any participant.
In this scenario, the prosecutor would have to prove the actor touched one of the specified areas and that s/he did so with the intent to either cause substantial emotional or bodily pain OR with the intent to arouse or gratify either the actor or the person she was touching.
The standard of evidence at a preliminary hearing is the probable cause standard, which is a very low standard. In addition, the rules of evidence are also quite relaxed compared to a trial setting. For example, at a preliminary hearing reliable hearsay is generally admissible, whereas at a trial the defendant has a constitutional right to confront all accusers and hearsay is generally inadmissible unless a well-established exception exists.
In drug possession cases, another element the prosecutor must prove by the probable cause standard in order for the charges to survive and be bound over for trial is the quantity of the drug. And, if the prosecutor is adding an enhancement for proximity to a church, parking lot, school, or other qualifying structure, another element is the distance of where the defendant was cited in relation to where the qualifying structure was.
In a drug distribution case, another element the prosecutor must prove at the preliminary hearing by the probable cause standard is whether the defendant had intent to distribute the controlled substance.
In the majority of cases, preliminary hearings result in some or all of the charges being bound over for trial. Notwithstanding, these hearings are extremely beneficial for a defendant since they serve as an informational gathering tool to determine what key witnesses the state is relying on, and what those witnesses will testify to. Many times these witnesses are unavailable due to relocating to another city or state, have lost a recollection of the events in question, or are unwilling to testify in court. If this is happens, many times the case is dismissed. These hearings are also important as they serve to get overly inflated charges reduced to what they should have been filed to begin with. In other words, sometimes the prosecution will inflate the charges or add charges that have little or no merit. The preliminary hearing helps filter out these inflated charges leaving only those that actually have a reasonable amount of evidence to proceed.
In felony cases, the charges that survive the preliminary hearing are read to the defendant and the defendant enters a plea on each of the charges (the standard pleas are “guilty,” “not guilty,” or “no contest”). As discussed above, it is very important to consult with an attorney to ensure that before entering a plea the defendant not only knows what each plea means, but what rights s/he will be giving up by entering a plea. An informed attorney will be able to educate the defendant in the legal ramifications and consequences of each type of plea.
At this stage the prosecuting and defense attorneys meet to discuss the evidence. The prosecutor will attempt to convince the defendant’s attorney that they have a solid case and that the defendant should plead guilty as charged. In exchange for a guilty plea, the prosecutor often times recommends leniency on jail time, or fines, or both. Sometimes it makes sense to plead guilty in exchange for a no-jail recommendation; however, other times taking a guilty plea is clearly NOT in the defendant’s best interest, as the prosecutor’s evidence may be so fraught with problems that should the matter proceed to trial, the prosecutor would not be able to have its case survive the rigorous “Beyond a Reasonable Doubt” standard, which is a very high standard to meet, as discussed more fully below.
On the other hand, at this conference the defense attorney, if effective, will aggressively and skillfully present evidence to the prosecutor that will persuade her/him to dismiss the case or at least amend the charges downwardly.
The attorney may also persuade the prosecutor to recommend no jail or reduced fines. The defense attorney may also propose creative solutions that satisfy the defendant’s objectives as well as meet the prosecutor’s objectives. For example, if a defendant had a job working with small children and was also an avid deer hunter and was recently charged with domestic violence against his wife in the presence of his children, this defendant could face losing his job, and would be prohibited from possessing a rifle so he could not participate in the deer hunt. A skillful defense attorney may offer a resolution such as a plea in abeyance. Under this plea resolution, the defendant pleads guilty to the charge, but the prosecutor agrees to recommend to the court that the plea be held in abeyance for a period of time (usually one year) on the condition that defendant takes a domestic violence class and does an assessment and whatever individual counseling is recommended by the evaluator, which may include couple’s counseling. If the defendant successfully completed the terms of the plea in abeyance, at the end of the twelve month period the defendant would have nothing on his record. He therefore would not lose his job, could continue to possess his rifle, and would not miss out on his deer hunting for the season. The prosecutor is happy because s/he gets a guilty plea which can be entered on the defendant’s record, without a trial, if the defendant violates the terms of the plea in abeyance agreement. The prosecutor also gets the defendant to attend classes so s/he can be hopefully rehabilitated, reducing the chance that the defendant will re-offend. So under this scenario the prosecutor and the defendant are both satisfied with the resolution.
During the pre-trial conference the defense attorney will have an opportunity to discuss with the defendant, in private, any possible plea offers the prosecutor has offered to the defendant. The defense attorney should, at that point, inform the defendant of the offer, advise him/her on whether the offer is a reasonable one under the circumstances, and ask the defendant whether s/he would like accept the offer. If the offer is accepted, the defendant must tell the court that s/he has accepted the offer, and inform the court what the terms of the offer are, must waive his/her rights, as discussed below, and must relay to the court the factual basis for the plea so the court can establish that each of the elements of the crime the defendant is pleading guilty to have been met beyond a reasonable doubt. A defendant’s admission to each of the elements of the alleged crime is usually sufficient to satisfy the “Beyond a Reasonable Doubt” standard.
If at the pre-trial conference the defendant has not obtained all the evidence that s/he has subpoenaed or requested from the prosecutor’s office, the matter may be rescheduled to another pre-trial conference. The court is usually flexible in permitting a defendant the opportunity for extensions of time if the defendant can demonstrate that the evidence is necessary and that s/he has been timely in requesting this evidence from the prosecutor’s office or other entities but has not yet received it.
If the prosecutor and defense attorneys cannot reach a plea resolution at the pretrial conference and they have all the evidence they have requested from either side, the matter is set for trial. A trial is where evidence is gathered and a fact finder makes a ruling on what evidence seems credible and what evidence is not. A fact finder can either be a judge or a jury. A defendant is entitled to a jury whenever jail time is possible, which would include any misdemeanor or felony matter. At trial, witnesses are called and questioned, documents are submitted in the form of exhibits, and opening and closing arguments help persuade the fact finder what really happened. The judge plays an active role in deciding what evidence is appropriate to be presented to the jury. The judge also instructs the jury to apply the facts to the law in determining whether the defendant is guilty or not guilty of the offense charged.
On more serious cases, the court may require a defendant to undergo a pre-sentence investigation report (“PSR”). The PSR is a report prepared by a state agency (usually a county probation office or the Adult Probation and Parole). Typically the court will order the defendant to set up a time to have this interview within twenty four hours of entering his/her plea of guilty. During the interview, the defendant will discuss with the evaluator the underlying charges, the defendant’s criminal history (if any), the defendant’s employment status (including rate of pay, responsibilities, length of employment, etc.), family history, attitude regarding the offense (whether the defendant is accepting responsibility and willingness to make amends and to repay victim and/or society for his/her crime), and whatever else the evaluator thinks is appropriate to inquire about to determine what kind of punishment is appropriate under the circumstances. The evaluator should also consider letters of reference from the defendant such as individuals that can speak of the defendant’s character, work ethic, change of heart/attitude since committing the crime, whether they trust the defendant and why they do, whether the crime was out of the defendant’s character, etc. These letters should be given by the defendant to the evaluator at the evaluation appointment. The defendant’s attorney often has an opportunity to discuss the evaluation interview with the evaluator and provide additional input to the evaluator. The evaluator then prepares the PSR and submits it to the court, the defense attorney, and the prosecutor, at least three business days prior to the scheduled sentencing hearing.
Sentencing is when the court determines what punishment is appropriate for a particular defendant. The court will review a PSR in more serious cases; in misdemeanor cases, however, the court may simply hear arguments from the defense and prosecuting attorneys. The court also accepts in advance letters written on behalf of a defendant. These letters should be sent to the attorney first so the attorney can provide the client feedback prior to submission to the court. At the sentencing hearing and after hearing the attorneys’ arguments, the court will order the defendant to either pay a fine, serve jail, perform community service, take classes relevant to the underlying offense (such as a theft or domestic violence class, etc.), or a combination of any of these. The goal of sentencing is to deter this particular defendant from committing future criminal offenses by punishing the offender, to rehabilitate the defendant so s/he will not be inclined to re-offend, to restore, to the extent possible, the victim to his/her former position, and to deter others from committing the same type of offense.
A defendant has a legal right to be sentenced not less than two (2) days or not more than forty-five (45) days after entering a plea or being found guilty. This is designed to both give the defendant enough time to adequately prepare for sentencing, as well as not have the matter delayed to the point that the defendant cannot get on with his/her life and get closure.
At this stage of the litigation, if a PSR has been prepared, the defense attorney argues why the sentencing recommendation should either be followed, modified, or disregarded altogether. Rarely will the defense attorney ask the court to totally disregard a recommendation; rather, the defense attorney will skillfully ask the court to modify it in the interests of justice in order to provide the best outcome for the victim(s), society, the defendant, as well as the defendant’s family. Likewise, the prosecutor may argue why the sentencing recommendation in the PSR should be followed or not. Many times the prosecutor will argue the PSR is too lenient, and that prison time is appropriate rather than granting the defendant the privilege of probation. In these circumstances, it is imperative to have an effective and aggressive defense attorney that can articulate and persuade a court to grant probation, and to have specific reasons why the court should so rule. Specific reasons sometimes include the adverse effect that prison would have on the victim, the victim’s family, society (tax payers who can pay over $60,000 per year to incarcerate one inmate), the effect that prison may have in disrupting the defendant’s treatments, etc.
The court often accepts pre-negotiated sentencing recommendations that the opposing attorneys have worked out as a condition of a plea bargain. However, the court is not bound by these recommendations and advises the defendant of this when the defendant is entering a plea of guilty. The reason why the court often accepts pre-negotiated sentencing recommendations is that the court realizes that, for the most part, attorneys that can come to such a resolution have done so after seriously deliberating the evidence, the risks of taking the matter to trial, the defendant’s criminal history, the impact that the negotiated plea agreement would have on society and the victims, etc. The court also realizes that attorneys typically have much more time to seriously consider the impact of a plea resolution, including a sentencing recommendation, than the court has when sentencing a defendant-which is usually just a few minutes to hear arguments from both counsel before sentencing.
The court will either permit the defendant or his attorney to make a statement on his/her behalf, and may even permit the defendant to have another additional individual make a statement on his behalf. The defendant should not expect the court to grant this request, however. While the defendant has a right to be heard at sentencing, whether another individual speaks on the defendant’s behalf, besides his/her attorney, is completely within the discretion of the sentencing judge.
The sentencing judge is the same judge that heard the evidence if the matter went to trial, or it is the same judge that the defendant appeared in front of after the preliminary hearing.
The judge will also permit the victim and the victim’s family to speak to the court regarding what they believe is the appropriate sentence for the defendant. Many times these individuals read pre-written statements to the court to enable them to recall all the thoughts, feelings, and emotions that have developed as a result of the crime the defendant has committed. They may favor prison, or they may ask the court for leniency on the defendant and recommend that s/he simply undergo counseling or pay the victim’s back the money that was taken or to pay them back the value of the property taken.
The defendant should not directly contact victims prior to sentencing and, in fact, is often ordered by the court NOT to contact any of the victims. At sentencing, however, the court may permit the defendant to make an apology statement, whether read or conveyed impromptu, to the victim and his/her family. In these cases the defendant is typically asked not to look at the victims and/or their family, but rather to continue to face the court. This is a good opportunity for the defendant to show s/he has accepted responsibility, has thought about how his/her actions have adversely affected the victim, and how s/he is willing to make amends, to repay the victim (if possible), to take counseling, or do whatever the court believes is appropriate to ensure that all affected parties are, to the extent possible, made whole again and restored to their previous life. While this restoring to prior life is a nice idea in theory, no victim will ever be the same again, and those defendants that can recognize this and demonstrate to the court that they have thought deeply about this, will have a much better chance of avoiding prison and/or jail time.
Prison/jail time serves many purposes: it protects society from the perpetrator; it punishes the perpetrator; it helps the perpetrator internalize the wrongfulness of his/her actions by forcing him to think about his crime without the distractions of typical life; it sends a message to society that such behavior is wrong and will be punished.
A defendant will increase his chance of avoiding prison/jail time if she can successfully demonstrate that she taken time to internalize the wrongfulness of his/her actions (such as voluntarily enrolled in a counseling or AA program (in applicable situations)), has been sufficiently punished since being charged (such as loss of employment, divorce resulting from the charges being filed, public scrutiny since the charges were filed, loss of ecclesiastical position, etc.), or does not pose a threat to society in re-offending due to measures the defendant has taken on his/her own.
Once the defendant is sentenced, he must comply with the court’s order immediately. Many times this means the defendant must be taken into custody at that time. Sometimes the defendant’s attorney can persuade the court to not take the defendant into custody until a given time in order for the defendant to make arrangements with his employer and/or family; however, this is the exception to the general rule that the defendant should be prepared for incarceration at the time of sentencing. Even if the defendant is granted the privilege of probation, a term of probation may include, among other things, that s/he be committed to a term of jail in the county jail. However, if no jail is imposed, or after the jail term is served, the defendant is free to live back in his/her residence, so long as she follows the other terms in the sentencing order. These terms often include random UAs, occasional visits from the assigned probation officer to ensure the probationer is not consuming illegal drugs and/or alcohol, or possessing firearms (such as restricted persons and/or felons). Other terms may include to complete counseling or doing community service. The probation may be court supervised, or supervised through an agency such as AP&P (Adult Probation and Parole) or a county probation service such as Salt Lake or Davis County Probation Services. If the defendant is supervised by the court, the defendant typically will not need to regularly report to the court and will only be required to report if the court gets information that the defendant has violated the law or has not submitted documentation to the court within the time ordered. Normally the court will ask for documentation proving that community service, counseling, or therapy has been completed. If the defendant has failed to comply with the terms of probation, the court will serve the defendant with an “Order to Show Cause” requiring the defendant to appear in court and show cause, if s/he has any, why the original sentence should not be imposed and the defendant be sentenced forthwith (immediately). Unless the defendant can successfully persuade the court why probation should not be revoked, he should prepare for jail time for violating his/her probation. Mr. Druyon has successfully persuaded courts throughout the State of Utah to not give his clients jail time but, rather, to give his client’s another chance either by revoking and reinstating the terms of the original probation, or some other creative remedy.