Is The Court Process The Same For Felony and Misdemeanor Charges?
No the court process is different for both misdemeanors and felonies. In a misdemeanor charge, when you are in court and most likely there is going to be a separate trial date for the second or third appearance, depending if your attorney is asking for a trial date. With a felony, you must first go through a bond hearing and then you have to have a finding of probable cause at some point. There are two ways that probable cause is proven by the state and when they do that, then it shifts from one point to another. A full felony judge is whom you will appear in front of when you go into the arraignment stage.
The two ways that they can find probable cause, is to make that jump to a full felony courtroom is they must have the finding of probable cause which can only be through a preliminary hearing. This is basically a police officer going to get up in front of the court and testify on what he heard, it might have been hearsay, and he might not even be the police officer on that case. It could be somebody reading somebody else’s reports and the guy is not even there. A judge can consider everything, but it is a very low burden. I have not seen a preliminary hearing where there was no finding of probable cause, but they do not have preliminary hearings any more nowadays. They tend to indict everything.
If someone is indicted, that means the grand jury has met and it is their choice, not yours. They will use a grand jury because it is much easier for them, grand jury hearings run super-fast. You do not have any defendants there, and you do not have any defense attorneys slowing things down. You can totally lead the witness. When I was a State Attorney for a short period of time, I was running a grand jury and I could do ten indictments in an hour easily. You are Officer Smith, you pulled this person over, you found drugs in his car, tested positive for cocaine, under 10 grams, any questions, no.
The person is indicted and they sign a piece of paper called an indictment. It is a piece of paper formally charging a person. That moves them over into the next felony courtroom. The court systems like doing the procedure this way, because they have no defense attorneys giving them any grief. They do not have to wait for people to show up. They go very fast, they spoon feed the information and most of the time; it is hard to mess up an indictment. All that does is get you over from the bond court to the next full felony court. And you must realize, you start fresh with a new judge and that judge will give you an arraignment, which is a long way of saying that he is going to read you the maximum possible penalties allotted.
So if you are facing a Class II felony, you are looking at three to five years, but if you have a prior then you are looking at least three to maybe fourteen years. If you have two prior Class II felonies, in that situation, then the state can elect to treat the Class II like a Class X, which amounts to six to up to thirty years in prison with no possibility of probation. Those are the things that happen at most arraignments. The judge tells you the absolute worst that can happen to you and then one hundred percent of the time you enter a plea of not guilty on your client’s behalf. You make any requests for any information that they intend to use against your client at trial which is called discovery and the judge will usually order that within so many days.
Then he will give you a date further down the line for trial, which is usually two to three months away from the arraignment here in Lake County, it could be longer in other states. They also give you a pre-trial date, usually a month and a half out. By then you should have all the police reports and spent time talking to all the witnesses. The idea behind that is if you have a case that you need to work out, you should work it out, take pleas and offers, just do not settle. Nobody wants to go to trial anymore. That is great if you are fresh out of law school, but if you have been practicing law for over twenty years no one wants to do another one just to get more experience. Hopefully you do not need it.
The whole idea behind getting the discovery or the police reports is that both sides know that there is no issue of facts. It should be a slam dunk case for the state and you are going to lose. Then you are not going to have a trial. Itis not like a game on TV where you call the mystery witness and they say, “Oh My God! Who is that?” You have to give the witness list to opposing council with all the police reports and anything they intend to use against you months out of the trial. If they do not and try to spring that at you in trial, the judge would never allow it. It is subject to objection and being kept out of the trial completely. That is why they have these rules for discovery.
Anything they intend to use against you like police reports, lab reports, your statement, co-defendant’s statement, anybody’s statement, whatever they have that they want to use against you, they must turn over to you with sufficient time for you to take a look at it, see if you want your own analysis done and investigation. The idea is that everybody knows what everybody has and it is like playing poker. You are not going to play too many hands if you can see the other guy’s hand and you know what he has. Sometimes, you do not have a choice. If they say that you have been charged with a Class II, but we are going to upgrade it to a Class X, because you have two priors and you are facing ten years in prison. You will have to go trial in that case, because you do not have a choice.
That is how a felony usually proceeds. We start with a bond hearing or an indictment to arraignment to pre-trial and then to trial. The time it takes to do all this is different in every state. In Illinois, if you are in custody unless you waive the time period, they have to prosecute you within one hundred and twenty days and if you are out of custody, it will be one hundred and eighty days subject to some very limited exceptions, such as like no fault of either party etc. That is the basic outline of the timeline of a felony case.
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