MILWAUKEE CRIMINAL PROCEDURE

This is the first appearance you make in court after you have been charged with a crime. At this appearance, you will be given notice of what the charges are and what the maximum penalties are. Many people appear without a lawyer and the court advises them of their right to representation.

At an arraignment hearing, you will enter a plea of “guilty” or “not guilty.” You will usually plead “not guilty” and request the opportunity to file motions to challenge the government’s evidence. This hearing is often held at the same time as the Initial Appearance (for misdemeanors) or the Preliminary Hearing (for felonies), though it can also be set for a separate date.

During this process, the government is constitutionally required to disclose to you all of the evidence they intend to use to show you committed a crime. This can include police reports, medical records, chemical testing results, probation reports, photographs, diagrams, recordings of witness statements, and physical evidence. You only have a right to see and get copies of these materials after you send a formal request to the prosecutor to present any and all materials they plan to use at trial. The defense must also provide the prosecution with copies of evidence that their side intends to present at trial. Neither side may hide evidence and/or surprise the other party at trial.

At the preliminary hearing, the judge determines whether or not there is probable cause that a felony has been committed. If probable cause is found, the case is dismissed immediately. If the judge does find probable cause however, a trial date is then set. Cases are rarely dismissed at this stage, but the defense can use the preliminary hearing to find holes in the prosecution’s case and to lock in witness testimony in preparation for the trial. At the preliminary hearing, the District Attorney may add additional charges and may attempt to “remand” the defendant back into custody, even if the defendant is currently out on bail.

Often, defendants feel as though they have no choice but to make a “deal” with the government in return for a reduced sentencing recommendation. Keep in mind, though, that you NEVER have to accept an offered plea bargain. Even if you’ve already entered a guilty plea, you can sometimes make a motion to withdraw the plea before sentencing and defend yourself at trial. In the plea bargaining process, the defendant may be charged with a lesser charge, or a District Attorney may agree to a lesser punishment for the same charge. Sometimes the prosecution may decide to drop some counts or even dismiss the charges completely due to the weakness of their evidence and/or the strength of the defense’s position.

Pre-trial motions are the most important tools available to criminal defense attorneys. Through careful and thorough investigation and preparation, an effective pre-trial motion can force the dismissal of charges or put sufficient pressure on the prosecutor to change his or her position on the resolution of the case.

Some common pre-trial motions include:

• Motion to suppress evidence (for example, arguing an illegal search)
• Motion to reveal the identity of an informant
• Motion to have separate trials on each count if there is more than one
• Motion to have separate trials for co-defendants, if applicable
• Motion to suppress statements (for example, arguing an improper Miranda warning)

<end><2><3>

If you are unable to settle a case favorably through the plea bargaining process or if you are convinced of your innocence and wish to exonerate yourself, then you have a right to a jury trial. All 12 members of the jury in a felony case, or 6 members in a misdemeanor case, must agree unanimously that you are guilty of each and every element of the offense beyond any reasonable doubt. If there is a reasonable doubt about even one element, then they must find you “not guilty.”

A trial can broken down into four main parts:

• Voir Dire: Directly translated, Voir Dire means “To speak the truth.” This is the stage in which a jury is selected. The purpose is to make sure that no juror is biased and that all jurors will give the defendant a fair trial. It’s critical to try and win over the jury during this first phase of the trial, as studies have shown that 80% of jurors make up their minds about guilt based on facts they get during the questioning and what they hear during the opening statements. Juries can be swayed based on the strength or weakness of the actual evidence or by a strong closing, but the first phase of the trial remains the most important.
• Opening Statement: In the opening statement, the defense and the prosecution outline what they intend to prove during the trial. This stage presents an opportunity for the defense attorney to point out holes in the prosecution’s case, thereby planting seeds of doubt in the minds of the jurors.
• Presentation of Evidence: The prosecution begins by presenting the evidence it has to substantiate its case, which is followed by the defense presenting its evidence. The prosecution then has the chance to respond to the defense by rebutting (or attempting to discredit) its evidence. The prosecution is given this opportunity because they have the burden of proving a crime was in fact committed. At this stage, the jury is generally not allowed to ask questions or interrupt proceedings in any other way. There may even be instances in which the jury is not allowed to hear or view certain evidence. The judge decides whether any proposed evidence is relevant and if so, whether it should be presented to the jury or if it would unfairly prejudice the defendant.
• Closing: After all evidence has been presented, both attorneys are able to make a final argument stating their opinion and commenting on the evidence and other aspects of the case. A common misconception is that trials are won or lost through a closing statement. The jury has usually made up its mind before the closing statements have been made; however, if it’s a close call, a strong closing may sway wavering jurors to side with the defense.
• Deliberation: After the closing statements, the jury retires to the jury room, chooses a foreperson to represent them, and then the members deliberate over who they think is telling the truth. The jury can return any verdict they choose, but a “not guilty” verdict can never be appealed. A “not guilty” verdict is required to be given if a single juror has a reasonable doubt about the guilt of the defendant.
  
  

NOTE: If there is no jury, the judge will make all decisions in the case, in what is known as a COURT TRIAL. In this case, the judge alone will determine what evidence is relevant and whether the defendant is guilty beyond any reasonable doubt. The defense and the prosecution present their respective arguments to the judge, just as they would in a jury trial, and the judge may interrupt to ask questions, clarify issues or voice his concerns. At the end of the presentation, usually after some deliberation, the judge will issue a final verdict.

If a defendant is found guilty, the actual punishment will be determined by the judge at the sentencing hearing. The judge is legally required to consider the severity of the offense, the character of the defendant, and the need to protect the public when determining a sentence. In nearly all cases, the judge usually will rely on sentencing guidelines, which offer him or her a range of time a defendant should serve based on the severity of the crime committed.

In felony cases, the probation department prepares a pre-sentence report (PSR) which contains facts about the defendant and makes a recommendation to the judge for an appropriate sentence. Although this recommendation is not binding, it is usually weighed heavily by the court. These reports are almost always unfavorable to the defendant, so it’s a good idea for the defense to respond by preparing their own pre-sentence report that points out the defendant’s good qualities and that recommends a more lenient sentence. This often has a significant impact on the judge’s decision as well.

In their PSR, the defense will often highlight mitigating factors and reasons why the defendant should be sentenced to the lowest possible term. These factors may be family circumstances, health concerns, cooperation with authorities during the investigation, a confession, etc. The defense also uses this opportunity to detail the defendant’s background, including any factors that led to the offense, and examples of positive post-offense adjustment. The quality of the defense’s PSR can mean the difference between receiving probation and prison.

If convicted, a defendant may appeal his or her conviction by filing a Motion for Post-Conviction Relief with the trial judge, or by taking a direct appeal to the Court of Appeals. The conviction will then either be reversed or upheld.

If the conviction is reversed, a new trial will be held unless the prosecutor decides not to proceed. If the conviction is upheld after this new trial, the defendant may try to get the Supreme Court to review the case. There is no automatic right to have your case heard at this level, and the Supreme Court only accepts about 6% of all cases filed.

The Court of Appeals is designed to correct errors made by the trial court, including procedural errors, while the Supreme Court focuses mainly on constitutional issues that will have a broad, state-wide impact. The Supreme Court will not review for errors made during the trial unless the errors rise to a level that fundamentally caused an unfair trial to begin with.