Criminal Case Procedure

The police department initiates criminal cases. After investigating an alleged crime, they will send reports to the District Attorney’s Office and make recommendations of what charges to file. Although the information that follows refers to the District Attorney, it is most often an assistant district attorney that actually handles the case, not the elected district attorney. The following information is based upon the procedures used in the Dane County circuit courts.

The district attorney reviews the police reports and determines whether to file charges or not. If a decision is made to file charges, the district attorney will draft a complaint. A complaint sets forth the charge or charges, a statutory citation setting forth the elements of the charge, the maximum potential penalties and factual allegations that the state believes establish probable cause to believe that the defendant committed the charged crime. The first step in case analysis is to determine whether the complaint is sufficient to sustain a charge. If not, the attorney can file a motion to dismiss the criminal complaint.

Copies of a complaint are distributed to the defendant or the defendant’s counsel at the time of the initial appearance. An initial appearance is a hearing typically held before a court commissioner. At the initial appearance, the court will decide whether a cash bond will be imposed or whether the defendant will be released on a signature bond. In either circumstance, the court will order conditions of release. If a cash bond is imposed, the defendant must post that amount of money with the clerk of court in order to remain free while the case is pending. If the court grants a signature bond, the defendant will remain free while the cases pending, provided that the defendant adheres to the conditions of release. Violations of the conditions of bond can result in the court imposing a higher cash bond, forfeiture of the posted cash bond, an order to pay the amount of a signature bond or even revocation of bond and incarceration.

At the initial appearance in a misdemeanor case, the defendant will enter a not guilty plea, or the court will enter a not guilty plea on behalf of the defendant. It is extremely rare that a defendant would enter a guilty or no contest plea at the initial appearance. If the defendant wishes to substitute the judge assigned to the case, that request must be made at the initial appearance in a misdemeanor case.

Different procedures apply in felony cases. At the initial appearance, the judge or court commissioner will still make the same determinations regarding bond, but a not guilty plea is not entered at that time. The court will either schedule a preliminary hearing or a status conference. If the defendant is in custody, a preliminary hearing must be held within 10 days. If a defendant is not in custody, a preliminary hearing must be held within 20 days. In either circumstance, a defendant may waive the time limits for holding a preliminary hearing. At a status conference, the defendant’s attorney will meet briefly with an assistant district attorney. If an agreement is reached to waive the preliminary hearing, a waiver hearing would be held at that time. If there is no agreement to waive the preliminary hearing, a preliminary hearing will be scheduled for a future date.

If a preliminary hearing is held, the state must produce evidence that a crime has been committed, that the defendant probably committed it, and that the crime is a felony. If the state fails to produce sufficient evidence to establish probable cause  that a felony has been committed, the charge could be dismissed or reduced to a misdemeanor. At a preliminary hearing, hearsay testimony is admissible. As a result, the district attorney is not even required to produce a first-hand witness to the alleged crime. The state is allowed to establish probable cause through a police officer that has only read the reports of the officers who investigated the alleged crime.

At a preliminary hearing, a defendant has the right to have his or her attorney cross examine any witnesses called by the state. A defendant has the right to subpoena witnesses and produce evidence at a preliminary hearing. That very rarely occurs because the Court of Appeals has ruled that a trial court judge is only to consider whether the state has produced sufficient evidence to establish probable cause. In other words, there is no point in producing evidence or witnesses at a preliminary hearing. In my opinion, it may well be malpractice to do so. In most cases, there is little to be gained from holding a preliminary hearing. As a result, preliminary hearings are often waived. Waiving a preliminary hearing does not mean that the defendant is giving up the right to have a trial, it is merely agreeing that the state could establish probable cause if a preliminary hearing were to be held.

If probable cause is established either at the conclusion of a preliminary hearing or through a waiver, in the next step the district attorney files an information, the formal charging document in a felony case. The district attorney typically files the information at that time, but is not required by law to do so. By statute, the district attorney has up to 10 days to file an information. After the information is filed, the next step is a hearing called an arraignment. It is at the arraignment that the defendant will enter a not guilty plea or have the judge or court commissioner enter a not guilty plea on the defendant’s behalf. In Dane county, the court will order that motions be filed within 20 days. Many times that time limit is not enforced because that is often insufficient time for the attorney to review the police reports or other evidence turned over to the defense by the state. Additionally, the attorney will often need to hire an investigator to discover evidence favorable to the defense case. Is only after discussing the facts with the client, reviewing the evidence and analyzing the law that the attorney can determine whether legal challenges exist. Such challenges may include whether the police followed proper procedures during the initial investigation, in arresting the defendant, while gathering evidence or when taking a statement from the defendant if a statement was given.

The discovery process continues throughout the case. The district attorney often produces new police reports on the eve of trial. Sometimes a defense investigator may discover last minute information as well.

After the initial discovery review and investigations taken place, the client and the attorney will sit down to discuss how the client wishes to proceed. The attorney will present his analysis of the evidence and how a jury will likely view the evidence. The client must then decide whether to have the attorney seek a negotiated resolution to the case or proceed with trial.