Criminal Process
Ricky W. Morris, Jr., P.C.
Attorneys at Law
78 Atlanta Street - McDonough, Georgia 30253
Office 770.898.9995 - Fax 770.692.0262
We are pleased that you have selected our firm to represent you in your pending legal matter. The following information is provided to help our clients understand the criminal trial process and help to ease the anxiety and apprehension sometimes experienced in the midst of the process in Georgia.
DEFINITIONS OF LEGAL TERMS
Appeal: To seek a higher court review of a decision of a lower court.
Appeal Bond: Security that an appellate court may require from an appellant in a civil case as a condition of staying an execution of judgment. A supersedeas bond is an appellant's bond required to stay execution of a judgment pending an appeal.
Arraignment: A proceeding held in the early stages of a criminal case after the filing of an indictment or information. The purpose of an arraignment is to allow a person accused of a crime to hear the charges in court and to enter a plea. In Iowa, a defendant may file a written arraignment in lieu of a court proceeding.
Bail: Security, such as cash or a bond, required to release a person being held in jail on criminal charges. The purpose of bail is to secure the presence of the individual in court at a future time to answer to the charges. A person who posts bail forfeits it if the defendant fails to appear in court as directed.
Bond: In a criminal action, an obligation, sometimes referred to as a bail bond, assumed by a surety on behalf of a criminal defendant to ensure the appearance of the defendant in court at a future date.
Brief: A written document that sets out the legal contentions of a party, including a recitation of important facts, a statement of the issues presented for review, and legal authority supporting a party's legal contentions. A brief is required on appeal.
Burden of Proof: A party's burden to establish a disputed assertion or charge. The term can mean either the burden of producing certain evidence (the most common usage) or the burden of persuading a judge or jury of a certain proposition.
Closing Argument: A summary of evidence presented to the jury at trial by the attorneys.
Code: A systematic compilation of laws. For example, the Georgia Code is a compilation of all laws approved by the Georgia Legislature and the governor.
Concurrent Sentences: Multiple sentences imposed on a single defendant to be served over the same time.
Contempt of Court: An act that shows disrespect for the court's authority. Contempt usually involves willful disobedience of a court order. A finding of willful disobedience requires evidence of conduct that is intentional and deliberate. Contempt is punishable by a fine, imprisonment, or other sanctions. Often, sanctions are used to compel someone into obeying a court order.
Continuance: To continue a matter, hearing, or trial to another time.
Conviction: A legal finding or determination that a person is guilty of a crime.
Criminal case: A case initiated and prosecuted by the government to enforce criminal laws.
Cross Examination: Questioning of a witness by opposing counsel.
Decree: A judicial decision or order. The word is typically used in reference to decisions and orders issued in dissolution, probate, and other types of cases heard in courts of equity.
Defendant: A person sued in a civil lawsuit or accused in a criminal proceeding.
Docket: A summary, list or index of court cases and the proceedings or events in each case. The court docket is maintained by the clerk of court.
Double Jeopardy: When a person is prosecuted or sentenced twice for the same crime. The Fifth Amendment prohibits double jeopardy.
Due Process: A term that means the conduct of legal proceedings in a manner that protects and enforces the rights of individuals, including notice to all parties and the right to a fair hearing before an impartial decision-maker.
Extradition: When one state or country surrenders to another jurisdiction a person accused of a crime or convicted of an offense.
Evidence: Any demonstration of a fact that tends to prove or disprove the existence of an alleged fact. Evidence can take many forms such as a statement of a witness, an object, etc., that bears on or establishes a point in question. Admissible evidence refers to evidence that is relevant to a case and is of the character of evidence eligible to be received into the record. Rules of evidence designed to ensure reliability and fairness govern the admissibility of evidence in court.
Felony : A crime considered to be of a grave nature and subject to severe penalties. For example, in most jurisdictions felonies include murder, kidnapping, manslaughter, burglary, robbery, and other grievous crimes.
Grand Jury: A group of citizens whose duty it is to inquire into a crime to determine if a criminal indictment against a person is warranted. In Georgia, a grand jury shall meet at the direction of the court, upon the request of a majority of grand jurors, or at the request of the county attorney. Typically, the county attorney is allowed to appear before a grand jury for the purpose of presenting information and examining witnesses. Grand jury proceedings are closed to the public.
Habeas corpus: Latin for "you have the body." A petition to bring a person before a court or a judge, most frequently used to ensure that a person's imprisonment, detention, or commitment is legal.
Hearsay: Testimony of a witness relating an out-of-court statement of someone else. Such evidence is generally inadmissible under the rules of evidence because the person who actually made the statement is not under oath and not subject to cross examination.
Indictment: A formal accusation of a crime issued by a grand jury, charging that a person has committed an indictable offense. An indictment is a plain, concise and definite statement of the offense charged.
Jurisdiction: The extent of the authority and power of a court to preside over a case and interpret and apply the law.
Jury: A number of people, selected according to law, and sworn to inquire of certain matters of fact and declare the truth upon evidence presented to them.
Jury Instructions: The judge's written directions to a jury concerning the laws pertinent to the case under consideration. A set of jury instructions is given to the jury just prior to its deliberations.
Misdemeanor: Offenses considered less grievous than felonies. There are three classes of misdemeanors: simple, serious, and aggravated. In Georgia, a simple misdemeanor is punishable by a fine not to exceed $500 and imprisonment not to exceed 30 days. The penalty for a serious misdemeanor is a fine in an amount between $250 and $1500 and imprisonment up to one year. An aggravated misdemeanor is punishable by a fine between $500 and $5000 and imprisonment not to exceed two years with some exceptions.
Motion: An application to the court requesting a specific ruling in a pending case. Usually, a motion concerns an issue with the court's discretion.
Notice of Appeal: A filing required to appeal a ruling made by a lower court. In Georgia, the notice of appeal is filed with the clerk of district court in the county where decision being appealed from is entered, a copy must be served on the other parties, and the clerk of district court sends a copy to the clerk of the supreme court.
Oath: A pledge to speak the truth.
Objection: A statement by an attorney opposing specific testimony or admission of evidence.
Opening Argument: A procedure at the start of a trial in which the attorney for each party summarizes the basis of the case.
Ordinance: A law passed by a city, town or county legislative body, usually matters that the state government allows to be regulated by local government.
Overrule: The court's denial of a motion or objection.
Perjury: The act of lying while under oath.
Pleading: A written statement setting out a cause of action or a defense of a legal case.
Preliminary Hearing: A court hearing that occurs in the initial stages of a criminal prosecution. In Georgia, the preliminary hearing takes place soon after an arrest and initial appearance. A defendant is entitled to a preliminary hearing unless the defendant has been indicted by a grand jury or a trial information, or has waived the hearing. The purpose of the preliminary hearing is to determine if there is probable cause to believe the defendant committed a crime.
Probable Cause: In criminal law, probable cause is a constitutionally prescribed standard of proof: a requirement of a reasonable ground to suspect that a person is committing or has committed a crime, or there is a fair probability that evidence of a crime would be found in a certain location that is the subject of a search warrant.
Probation: A criminal sentence in which a person convicted of a crime is released by the court subject to certain conditions imposed by the court and supervision by a probation officer. Conditions of probation may include payment of restitution, fines, and court costs, community service, substance abuse treatment, regular drug testing, payment of child support obligation, travel restrictions, and other requirements intended to promote rehabilitation of a defendant.
Prosecute: To initiate and carry out a legal action, usually associated with carrying out a criminal case.
Prosecutor: A government attorney who initiates and maintains a criminal action on behalf of the people against a person accused of a crime. In Iowa, a county attorney, city attorney, and the attorney general are prosecutors.
Public Defender: A lawyer employed by the government to represent a person accused of a serious crime and who cannot afford to hire a lawyer.
Restitution: An equitable remedy under which a person is restored to his or her original position prior to loss or injury. Restitution is commonly used to describe full or partial compensation owed by a criminal to a victim of a crime as part of a criminal sentence.
Sentence: Judgment formally pronounced by a judge upon defendant after the defendant's conviction in the criminal prosecution.
Statute: A law adopted by the legislature.
Statute of Limitations: A law that sets a time limit for bringing a lawsuit in a case.
Stipulation: A written agreement by opposing parties in a case as to any manner pertaining to court proceedings or trial. Stipulations serve to simplify and expedite proceedings when parties agree on certain facts or procedures.
Subpoena: A written legal notice compelling a person to appear in court to testify as a witness. Subpoena duces tecum is a notice to compel a person to appear and bring specified documents, records, or items.
Suppress: To prevent something from being seen, heard, or said. To suppress evidence is to keep evidence being offered by a party from being used in a trial. Typically, a court will suppress evidence if it is irrelevant or was obtained illegally.
Sustain: The court's acceptance of a motion or objection.
Testimony: Spoken evidence given by a witness, under oath, as distinguished by evidence derived by writings and other sources.
Transcripts: A copy of the record of a trial, hearing or other proceeding as prepared by a court reporter.
Venue: The proper place for a lawsuit or place where a court has jurisdiction. A court may change venue under certain circumstances.
Verdict: The formal decision or finding made by a jury on the factual issues of a case and accepted by the court.
Voire Dire: An inquiry of prospective jurors, by the attorneys and by the judge, to determine if such jurors are fit for jury duty in a given case.
Warrant: A writ or order authorizing an officer to make an arrest, conduct a search, or to perform some other designated act.
Witness: One who testifies to what he or she has seen, heard, or otherwise observed or testifies to his or her opinion based on a hypothetical statement.
Writ: An order issued from a court requiring the performance of a specified act, or giving authority and commission to having it done.
Ricky W. Morris, Jr., P.C.
Attorney at Law
78 Atlanta Street, Suite 101 McDonough, Georgia 30253
Office 770.898.9995 , Fax 770.957.8846
THE CRIMINAL TRIAL PROCESS
Felony & Misdemeanor Charge
The following is a brief overview of the procedures involved in the criminal justice system. Of course, every case is unique and may have special considerations.
The criminal process typically begins with a stop or an arrest. It could end at any point up to the time of sentencing, depending on the facts and circumstances of any particular case. You have certain rights at every stage of the criminal process. The following is a brief explanation of each step from a stop through sentencing.
Stop
You may be stopped for questioning by the police. A stop is not the same as an arrest. A stop occurs when a police officer detains you to ask you questions, but does not move you to a different location. A police officer should not stop you unless he has a reasonable belief that you have violated the law. Even though you are not under arrest at this point, you do not have to answer any questions that the police officer asks you. The police may also ask to search you or your vehicle. The police officer cannot search your car without your consent unless he has "probable cause". "Probable cause" is a legal determination that you won't be able to challenge until later. Because of this, you may want to tell the police officer that you do not consent to a search of your vehicle. The police officer may perform a search anyway, but if it is later determined that there was not probable cause, at least you won't have consented to the search. The police officer could decide at this point that there is no reason to arrest you and your involvement in the criminal process could end here.
Arrest
An arrest is made when the police officially take a person into custody. When you are placed under arrest, the police must inform you of your constitutional rights. This includes your right to remain silent and your right to obtain the advice of an attorney. When you are arrested you should be given an opportunity to contact a lawyer or anyone else you want to let know what has happened to you. You are not limited to a single call. Once you are arrested there is a limited amount of time before you must either be charged with a crime or released. If you have been held for an unreasonable amount of time without being charged, your attorney can ask a judge to order your release.
After you are arrested and charged with a crime you will be booked. You will be finger printed. Your name and the crime that you have been charged with will be entered into the official police record. Your personal belongings will be taken from you for safe keeping while you are in custody. They will be inventoried and you will be asked to sign the inventory. Depending on the charge and the circumstances of your case, you may be released and ordered to appear for your hearing in court. You may be released on your own recognizance or you may have to put up a certain amount of bail to secure your release.
Miranda rights are a constitutional guarantee that any person who is arrested and questioned as a suspect in a crime be informed that he or she has the right to remain silent. Miranda rights also ensure that the suspect is told that whatever he or she says can be used in court as evidence and that that the suspect has the right to speak to an attorney. Further, if the suspect cannot afford to hire an attorney, the court will assign one to the case at no charge. Miranda rights must be read to a person in police custody prior to an interrogation in a statement known as the Miranda Warning.
Warrant
Usually, for the accused to be arrested, the Magistrate Court must first issue a warrant. This can be done by an officer or by a civilian.
Bail or Bond
After the arrest, the accused is offered an opportunity to make bail or bond. By paying the specified amount of money, the accused is allowed to be free from jail to await further legal proceedings. The justification for bail or bond is to assure the accused appears in court and it further serves to maintain the presumption of innocence for the accused.
There are certain crimes that require bail or bond to be set by the Superior Court Judge. Those crimes include: Murder, Rape, Armed Robbery, Hijacking, Certain Drug Offenses, Aggravated Child Molestation, Aggravated Sexual Battery, Treason, Aggravated Sodomy, and Aggravated Stalking. Also Kidnapping, Arson, Aggravated Assault, and Burglary if previously convicted of or on bail for any of these crimes.
The Superior Court Judge hears the petition brought before him or her for setting a bond. He then rules on the motion and either sets or denies bond.
Preliminary Hearing
A preliminary hearing is usually held within two weeks after the arrest of the accused. It is usually held in the Magistrate Court. At this hearing, evidence is presented to the presiding judge, who decides if the evidence presented to him or her is sufficient to proceed in Superior Court. This is sometimes referred to as binding the case over for grand jury presentation.
Grand Jury
The purpose of grand jury presentation is to hear testimony and facts from the officer and/or victim involved in the case. The grand jury is closed to the public. Only those subpoenaed to testify are allowed to participate. The Defendant and counsel are not entitled to attend grand jury hearings nor present evidence.
After hearing the presentation, the grand jury votes on the case. If they determine the defendant should be formally charged, they "indict" the case. If they determine the defendant should not be formally charged due to insufficient evidence, they "no bill" the case.
Arraignment
After the grand jury has indicted a case, the accused will appear before a Superior Court Judge and either plead "guilty" or "not guilty". If the defendant pleads guilty, the judge will probably sentence him or her on that day. If he or she pleads not guilty, the case will be put on a trial calendar unless the defendant changes his or her plea.
Plea Agreements
Sometimes, the prosecutor (for felonies) or solicitors (for misdemeanors) will offer an agreement whereby they will offer the defendant a less-harsh sentence if they will agree to plead guilty instead of going to trial. When a defendant agrees to a guilty plea for a less-harsh sentence, the defendant has waived their right to a jury trial.
Trial
The purpose of a jury trial is to lay before the selected jury the evidence in a case and the law that applies. A jury considers the evidence presented to them by the prosecuting attorney and the defense attorney who represents the defendant. Witnesses are subpoenaed to testify in court, which is a legal notification issued by the Clerk of Superior Court. At the conclusion of opening statements, evidence, closing statements, and the jury charge, the jury deliberates until they reach a verdict. If a verdict is reached, they return the verdict in open court which will be either "guilty" or "not guilty". If the jury cannot reach a unanimous verdict, a mistrial is declared.
Sentencing
The judge imposes sentence usually immediately following the trial. Sometimes a pre-sentencing hearing is held for the judge to consider. The defendant could receive prison time and/or probated sentence. If the defendant receives probation, he or she will be assigned a probation officer to whom he or she will be required to report and keep informed of his or her current residence, place of employment, and any trips out of town.