The court will read the defendant the charges and ask how s/he pleads (guilty, not guilty, or no contest). There are advantages and disadvantages to any one of these pleas. Discuss them with your Utah criminal defense attorney to ensure your legal rights are protected. Usually a defendant will plead not guilty in order to have time to retain an attorney or, if representing him/herself, to have time to obtain evidence in preparation for trial. The court will not hold this against a defendant because it realizes that the defendant needs to find out his legal rights and to determine the elements of the crimes he is alleged to have committed, as well as time to see the evidence his/her accusers are using. Defendants enter pleas of not-guilty so frequently that the court almost expects it initially to give the defendant enough time to retain an attorney and understand his/her rights.
At this stage of the misdemeanor process, 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 to 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.
If a judge or jury returns a verdict of guilty of any of the charges, or the defendant pleads guilty to any of the charges as a result of a plea bargain, the defendant must face sentencing. Sentencing on more serious misdemeanors and felonies is usually postponed until the defendant can be evaluated by a member of Adult Probation and Parole (AP&P) or other agency authorized to make recommendations to the court as to what punishment would be appropriate for this particular defendant. This recommendation is based on a number of factors, such as the defendant’s criminal history, the underlying offense, whether defendant is amenable to supervised probation, whether defendant has accepted any responsibility for his criminal behavior, whether the defendant minimizes his/her conduct, whether the defendant has a support network of family and/or friends in the area, whether the defendant has stable, verifiable employment, whether the defendant has stable housing in the area, whether there is restitution that needs to be paid thereby justifying keeping defendant employed rather than locked up, and whether the victims are agreeable to probation in lieu of jail/prison time. It is helpful for a defendant facing sentencing to obtain letters of recommendation that show how that person knows the defendant, and in what capacity, and some character traits that are praiseworthy, such as very dependable, has a good attitude, a description of what responsibilities the defendant has had to perform, etc. These letters should be provided to the interviewer at AP&P for a positive influence prior to the recommendation being submitted to the court. A copy is also provided to the defense and prosecuting attorneys. At the sentencing hearing the defense attorney will try to persuade the judge for leniency, while the prosecutor may try to persuade the judge for jail and/or prison time and maximum fines and/or punishment.
Typically the defendant is permitted to address the court if s/he desires to, but this is not required. Most courts will permit a defendant to have one person make statements in his/her behalf, but usually this is limited to the defendant’s attorney. It could also be a family member or friend under some circumstances. If the defendant is sentenced to any jail/prison time, the defendant should expect to be incarcerated immediately. This means that she should not have valuables on her person she is concerned will be confiscated indefinitely by the police/sheriff’s department.
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