by Allen Gasper , the Senior Partner in the Gasper Law Group, Colorado Springs.
A complaint is levied against the individual and the – now defendant – is either arrested or receives a Summons to appear in Court
The individual is charged with a crime which now constitutes the “arrest charge” prior to the individual’s appearance in Court.
After the initial advisement of the “arrest charges,” the defendant will appear in Court for the Filing of Charges – at which time the defendant is advised of the actual charges filed in the case. This may also be a “bond return date” – meaning the defendant has bonded out of jail and MUST appear in Court at the date and time specified. Failure to appear while on bond may cause the Court to issue a warrant for the defendant’s arrest and a Show Cause Order to the bondsman for forfeiture of the bond.
The matter will be set for either a Disposition Hearing or a Preliminary Hearing. A defendant is entitled to a Preliminary Hearing only under the following conditions: (1) the highest charge in the Complaint and Information is a Felony 1, 2 or 3, or the individual defendant is in custody at the time of the Preliminary Hearing. A Preliminary Hearing may be waived by the defendant. At a Preliminary Hearing, the District Attorney is required to present sufficient evidence for the Judge to determine the existence of Probable Cause supporting the belief that a crime was committed and that the defendant committed the crime. Contrary to public belief, the Court must determine only that there is evidence sufficient to proceed to trial and whether such evidence might support a conviction of the defendant. Because the evidence in this Hearing is viewed in the “light most favorable to the prosecution,” the court does not place a great amount of weight on the credibility of the witnesses. Hearsay, an out of court statement which is offered for the truth of the statement, while usually not allowed in trial is acceptable in a Preliminary Hearing. If the prosecution meets its burden in the Preliminary Hearing, the case will proceed in District Court.
The next step in the process is the “Arraignment,” at which time the defendant will enter a plea – either “guilty or not guilty.” If a plea disposition is reached, the agreement will be taken by the Court and a new date for Sentencing will be set. If no agreement is reached, the Court will set the matter for trial, which includes dates for Motions Hearings, Pre-trial conferences and other dates in order to deal with legal issues and other “procedural” matters prior to trial.
More often than not, issues are presented in the District Attorney Discovery (the DA file which contains police reports, witness statements, laboratory reports, expert reports, official state records, etc) which require the defendant to argue the “validity” of the information to be presented to the jury. For instance, a defendant was questioned by the police, after being taken into custody but prior to the officer reading the defendant his legal rights (Miranda Warning). This type of problem would be fertile ground for the filing of a Suppression Motion, asking the Court to exclude the defendant’s statements based upon the police not following the proper procedure to protect the defendant’s rights. A Motions Hearing is a hearing in which the defendant can present evidence to support his Motion and to request the Judge determine the validity of the legal issues presented.
The defendant has the right to trial, either by Court or Jury. In District Felony cases, the jury consists of twelve (12) persons with the addition of alternates (may be one or more). It is important to note that a verdict must be unanimous, all twelve must agree. Additionally, due to the Right to Speedy Trial, the defendant must be tried with six (6) months from the date of the entry of a plea of not guilty. This Right to Speedy Trial can be waived at any time during the process for good cause shown. In the criminal justice system, the burden of proof is on the Prosecution and that proof must be beyond a reasonable doubt.