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

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

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

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

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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 the assailant and, if recognized; to help in finding the crime scene; 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. There are four basic ways a case can proceed:

1. A person may be arrested at the time of the crime. Law enforcement completes an arrest document stating the charges against the accused. If no arrest is made at the time of the crime, law enforcement investigates.
   
   
2. If appropriate, law enforcement presents 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 have committed the crime. The State Attorney 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, the Judge through the Clerk of the Court may issue a capias or arrest warrant.
   
   
3. Based upon the investigation, an affidavit of probable cause is presented to the Judge by the State Attorney. If probable cause is found, the Judge may issue an arrest warrant. Both the capias and the arrest warrant directs law enforcement to arrest the person believed to have committed the crime.
   
   
4. The accused may be arrested based upon the investigation and indictment returned by the grand jury.
   
   

HOW LONG UNTIL AN ARREST IS MADE?

As a victim you have a right to be notified of an arrest. Each case will proceed differently. The Law Enforcement Agency making the arrest will notify you of the arrest. Interviewing witnesses and the collection of evidence can be a timely process. There is no set time frame. If you would like to find out about your case call your local agency or State Attorney. Make sure to have the case number when you call.

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 or arrest capias 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 72 hour or greater hold 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 him, of his right to be represented by a lawyer, and of his right to an adjournment so that he can obtain a lawyer. In more violent crimes or if the defendant cannot post bond, within hours of the arrest, 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 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 him. 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 he is accused of. Decision is made by a jury of 12, or in a non-jury trial, by the judge. Victim must be present 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 for victims are available to accompany you at all 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 assault, or from 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.