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When A Parent Goes To Jail: A Comprehensive Guide for Counseling Children of Incarcerated Parents

When A Parent Goes To
Jail : A Comprehensive
Guide for Counseling Children
of Incarcerated Parents



The Process is the Punishment: Handling Cases in the Lower Criminal Court

The Process is the
Punishment: Handling
Cases in the Lower
Criminal Court



Child Custody and Domestic Violence: A Call for Safety and Accountability

Child Custody and
Domestic Violence: A
Call for Safety and
Accountability



Divorced from Justice: The Abuse of Women & Children by Divorce Lawyers and Judges

Divorced from Justice:
The Abuse of Women &
Children by Divorce
Lawyers and Judges



Probable Cause: Between the Police Officer and the Magistrate

Probable Cause: Between
the Police Officer and
the Magistrate

Victims and the Court Process



An Overview of the Court Process in Criminal Trials
What to expect from the system...and what the system expects from you

As the victim or witness your role is critical. You have seen, heard, know or experienced something that is important to the investigation of this case. You may be interviewed by law enforcement to identify a perpertrator(s), to help in finding the crime scene; to identify stolen property, etc. Please keep the agency advised where you are living and your telephone number (work and home). The criminal justice process starts with a crime. When a crime is either reported or discovered by law enforcement, here's what happens:

  1. A person may be arrested at the time of the crime. For most cases of misdemeanor level crimes, law enforcement must WITNESS the offense; domestic violence cases being a noteable exception, where law enforcement can arrest even without SEEING the offense, if they are able to establish probable cause through evidence, witness statements, etc. Law enforcement transports the person to the local jail, and the case moves from there. Or....

  2. If law enforcement does NOT witness the incident, or is unable to establish probable cause needed for arrest at that moment, then they investigate and attempt to gather enough evidence to present a sworn complaint to the State Attorney. The State Attorney determines whether there is probable cause to believe that a crime was committed and that the suspect may be the one who committed the crime. The District Attorney (called State's Attorney in some places) may file a document, called an Information with the Clerk of the Court charging the suspect with the criminal offense. If an Information is filed, a judge issues a capias (arrest warrant) which directs law enforcement to arrest the person believed to have committed the crime.

    • Interviewing witnesses and collecting evidence can be a timely process. It never moves as quickly as victims hope it will. Unlike television shows where investigators and DAs are working exclusively on one case, the reality is that most of the time they are juggling many, even dozens, of cases at one time. For cases where the parties in the case know each other, most of the time investigators are extremely reluctant to reveal any details in order to keep the investigation intact.

    • Make sure to get a case number from the responding officer. This will help you to get answers to your questions about the case faster. Once the case it turned over to the DA, then you'll want to talk to the DAs office about the case, instead of law enforcement.

    • Working with a victim advocate from the law enforcement agency and/or the DAs office is the best way to keep tabs on what is happening and points along the way where you'll have a chance to participate in the case. DAs spend a lot of time in court, and you are likely to get extremely frustrated leaving messages and expecting a call back; so work with an advocate who can check on things on your behalf.

Whether made at the time of the crime, or some time later after an investigation/warrant process, the case moves along as follows:

BAIL OR BOND?

Bail or bond is an amount of money or property posted by the defendant for his/her release to ensure the defendant appears in court. The amount of bail is set by the judge at the time the arrest warrant is issued. The Court considers: the nature of offense, evidence, defendant's employment status, mental condition, ties to the community, and convictions before setting bail. In less violent crimes, the defendant may be allowed to post bond and be released immediately, but many states now how mandatory "cooling off" periods for domestic violence offenses, requiring a mandatory hold for some short period of time to allow the offender to cool down and to allow the at-risk family members to make arrangements for their safety.

FIRST APPEARANCE HEARING: (Arraignment)

The defendant is informed of the charges against them, of their right to be represented by a lawyer, and of their right to an adjournment so that they can obtain a lawyer. In more violent crimes or if the defendant cannot post bond, the court holds a "First Appearance" hearing. The Judge decides whether the defendant can be released based on the nature of the offense, evidence, defendants employment status, mental condition, ties to the community, and previous convictions and if so, what conditions are necessary to protect the victim/witness.

Bail may be set when the arrest is made on probable cause by law enforcement. There are times when the defendant is released on his/her own recognizance (signature bond). The Judge can include special conditions ordering the defendant to have "no contact" with the victim and/or witness. The sole purpose of bail is to assure the court that the defendant will return to the next court proceeding. If bail is granted, it is not a reflection on the seriousness of the case.

First appearance hearings are usually the morning following the arrest. During the week they are usually held at the county courthouse. On weekends many hold it at a secondary court facility at the local county jail.

PRELIMINARY (FELONY) HEARING

This hearing is held in the city, town or village court where the crime occurred. The prosecution must establish that there is reasonable cause to believe that the defendant committed the offense charged. After this stage the case is transferred to the Superior Court. The Victim's presence is required.

GRAND JURY HEARING

The Grand Jury is a panel of citizens who listen to witnesses and evidence concerning felony cases. If they find that the defendant is properly charged and the evidence is sufficient, the Grand Jury will vote to indict (charge) the complaint. Otherwise the vote would be to no bill (no charge) the complaint. The defendant and his attorney are not present at this stage. The victim is required to testify.

PRETRIAL MOTIONS

After indictment and prior to trial the defendant may challenge the legality of the evidence against them. Such a challenge may involve the way physical evidence was obtained, or the manner in which the defendant was identified. In some cases, the victim's presence may be required.

TRIAL

The trial is held to determine if the prosecution can show, beyond a reasonable doubt, that the defendant committed the crimes that they is accused of. Decision is made by a jury of 12, or in a non-jury trial, by the judge. The victim will usually be called to testify.

PLEA BARGAIN / NEGOTIATION

At any stage, depending on the quality of the proof, the record and character of the defendant, and the attitude of the victim, a reduced plea to a lesser crime can be consented to with the permission of the court, the District Attorney, and the defendant.

COURT ADVOCATE PROGRAMS

Court Advocates may be available in your jurisdiction to accompany victims to court proceedings. Support can be especially helpful at this time. The Court Advocate can help you deal with feelings that result; from testifying about the crime, or regarding issues of having to see the defendant in the courtroom. They can explain what is involved in each step, and act as a liaison with the prosecutor. These services are free and confidential.

This individual helps you through this sometimes confusing process by:

  • Notifying victims and witnesses of all court dates.

  • Providing information and help with an impact statement explaining to the court the impact the alleged crime has had on their life.

  • Assisting with notification upon the defendant's release.

  • Evaluating needs and offering referrals for counseling and financial assistance.

  • Assisting with restitution documentation.

  • Arranging for a safe waiting area on the day of court proceedings.

  • Consulting with the District Attorney regarding the concerns of the victims and witnesses.




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Last Updated: May 5, 2011