If you have been arrested, we recommend telling the cops that you want to speak with an attorney and do not wish to be questioned. It is essential to tell officers to speak with your lawyer, and then remain silent.
Every arrest is different, but the process usually follows these steps:
An individual may be arrested with or without a warrant. Arresting someone can be a frightening experience. However, it is critical to remember that you do have rights throughout the process.
In most misdemeanor cases such as DUI, a bond will be set immediately, and once you are booked in, you will be able to bond out with property or a bondsman by paying a percentage of the total bond (usually 10-15%).
In felony cases, you must appear in front of a magistrate judge where the charges will be read, your rights will be pronounced (including the right to an attorney) and the court will consider a bond. If the court denies your bond, you must file a Motion for Bond in either Magistrate Court or in Superior Court where the judge will hear evidence from the State and the Defense during a formal hearing.
If you are still in jail and you or your attorney requests a preliminary hearing, you will appear in front of a Magistrate Court for the court to hear evidence from the prosecution as to why you were arrested and charged. You do have a right to cross-examine the officer and you do have the right to testify on your own behalf during this hearing. At the conclusion of the evidence, the court will determine if there is "probable cause" to continue to hold you on the warrant and if so, will bind the case over for a Grand Jury presentation for indictment.
NOTE: I never advise my clients to testify on their own behalf during this proceeding. This proceeding is typically a fact-finding mission on behalf of the defense, and the rules of evidence do not apply. 99% of the time, the court will find cause to hold you on the warrant, and it is used to get a jump start on the investigation into your case.
Next is an indictment by Grand Jury or an Accusation filed by the prosecutor.
An indictment is a formal charge or accusation of committing a crime. In Georgia, grand jury indictments are reserved for more serious offenses and offenses that are required to go in front of a Grand Jury due to the defendant remaining in custody. Grand Jury proceedings are "secret," and except for a few exceptions, the defendant nor the defense attorney are allowed to be part of the proceedings. The grand jury decides whether there is substantial proof to file a criminal case against the defendant and if so, they will return a "True Bill" of Indictment. If they do not find enough evidence they will return a "No Bill" of Indictment.
In some cases, the prosecutor must simply file an Accusation without a Grand Jury presentation. Both an Accusation and True Bill of Indictment formally charge the crimes for which you must answer to and defend against and both will place your case of the court's docket for a future trial.
"Arraignment" refers to the formal start of a criminal court hearing. This is also referred to as an initial appearance or initial hearing. In Georgia, the expression "arraignment" refers to a hearing during which the prosecutor reads the allegations brought against the defendant in the accusation or indictment.
The defense attorney enters a plea of guilty or not guilty on behalf of the defendant. The court may enter a scheduling order at an arraignment giving the defendant a deadline to file motions and a date for calendar call and/or trial. It usually occurs in felony cases months after arrest. If no scheduling orders are entered, the default rule is that all motions must be filed within ten days of arraignment.
In most cases and counties that we practice in, the court will grant additional time to file motions once the state prosecutor supplies you or your attorney with the evidence that the prosecutor intends to use against you. A motion must be filed to receive this information.
It is vital to hire a Georgia Criminal Defense Lawyer as soon after your arrest as possible but certainly prior to arraignment.
Jury Trial: Under the Seventh Amendment to the United States Constitution, citizens have a right to ask for a jury trial. A jury trial occurs when a jury of one's peers decides on the guilt or innocence of the accused. The state or prosecutor has the burden at any trial to prove the guilt of an accused beyond a reasonable doubt which is the highest legal standard of proof in the land.Schedule a Consultation
A jury is typically comprised of 12 jurors and an alternate in felony cases and 6 jurors and an alternate in misdemeanor cases. The selection of a jury is call Voir Dire and requires the skill and attention of a trained trial attorney by the asking of questions to potential jurors to try and weed out the jurors who might be likely to convict you due to their own personal experiences and beliefs.
Bench Trial: A bench trial occurs when a judge hears and determines a case and the judge's decision alone is final. This may only occur in a criminal case where the defendant waives his right to a Jury Trial and the state does not object. Bench trials are typically utilized by defense attorneys in cases that rely heavier on the law than the facts of the case. This is an issue that you must see a Georgia Criminal Attorney about.
Appeals after a convictions: A request for a new trial may be submitted by the defendant within thirty days following conviction and sentencing. Failure to file this motion in a timely manner could waive any right to appeal.