Smuda & Ramirez, P.C.

When Legal Ability and Experience Count, A Firm You Can Trust

Criminal Defense

Smuda & Ramirez, P.C. undertakes aggressive and zealous defense of its clients accused of crimes in Missouri. We handle everything from traffic tickets to misdemeanor cases to felony cases in the municipal, circuit and federal courts.

  
Overview of a criminal case: Every criminal case is different. How it is handled will depend greatly on the facts, the nature of the offense, and the needs and desires of the client.


What follows is a general overview of the typical criminal case: 


Investigation: Law enforcement officials may investigate an alleged crime immediately after it happens or during an ongoing case. Usually, investigation will consist of interviews with witnesses and alleged victims and possibly an interview with the suspect.  Persons suspected of crimes are not required to discuss those matters, or any others, with law enforcement. Every citizen of the United States has the right to remain silent and/or to have an attorney present during questioning. As officers are usually trying to make a case against the suspect they are interviewing, suspects can rarely say anything to help themselves. Many criminal defense attorneys will recommend strongly against speaking to any agent of the government prior to obtaining the advice of counsel.


Investigation may also consist of forensic testing for fingerprints, hair or fiber evidence, DNA testing or handwriting analyses. Every drug case will almost certainly require laboratory analysis to determine whether illegal drugs are present in seized evidence. Often, an investigation includes a search of a person or his property. The law on search and seizure in the U.S. is too complex to discuss here in detail. Searches require a warrant issued by a detached and neutral judge after application by law enforcement officers who are able to demonstrate that there is probable cause to believe the fruits or instrumentalities of a crime will be found in the place to be searched. However, there are several notable exceptions to the requirement of a warrant:  (1) cars are movable, so they may be searched when an officer has probable cause that there is contraband or evidence of a crime inside; (2) an individual and his surroundings may be searched when arrested, so that officers can determine that there are no weapons or contraband within the person's reach; (3) when the evidence is likely to be destroyed or to dissipate absent an immediate search, officers may search; and (4) when an individual gives the officer consent to do a search, he waives his constitutional rights. Many criminal defense attorneys will strongly recommend against ever consenting to a search.  


Arrest: If a law enforcement officer sees a crime committed, the officer may immediately arrest the person the officer believes is responsible. Otherwise, the officer will conduct an investigation to try to develop probable cause. Probable cause is that amount of evidence that would lead a reasonable person to believe that a suspect has committed a crime. If the officer has probable cause to believe that a suspect committed a crime, an arrest may be made. Sometimes, the officer will conduct an investigation and simply turn the information over to the prosecuting authority in the jurisdiction. The prosecutor may then file a case and ask a judge to issue an arrest warrant which allows an officer to arrest a person. Once arrested, the suspect is brought before a judge to be arraigned. 


Arraignment and bond: If a bond has been set for the charge, a suspect may either post cash sufficient to cover the bond or have a bondsman post the bond for them.  A bondsman will charge for the bonding services. If the suspect posts the suspect's own cash bond, the suspect can get the money back once the case is resolved, less any fines and court costs which may be assessed. After posting bond, the suspect will be given a court date. If the suspect cannot post bond, the suspect will see the judge within a day or two. When a person is brought before a judge and informed of the charge, the person is being "arraigned". In misdemeanor cases, the defendant may be asked to enter a plea of not guilty or guilty. If the defendant is still in custody, the judge may be asked to lower the bond amount which can be posted and to release the defendant.  As the purpose of bond is to insure that a defendant will return to court, a judge will usually consider whether the defendant has contacts with the community, is likely to flee, poses a danger to himself or others, and whether the defendant has ever failed to appear in the past. If a defendant who is out on bond fails to appear for court, the bond will be forfeited and a new warrant for the defendant's arrest will be issued. 


Discovery: An attorney may be retained by the defendant or may be appointed by the court, if a defendant is indigent. An attorney's first duty is usually to obtain discovery. Discovery is all of the information that the prosecutor and police have that is relevant to the case. Police reports should be ordered immediately. A defense attorney will also want to request videotapes, audio tapes of 911 calls, dispatch calls and interviews, photographs, diagrams, laboratory reports regarding breath, blood, DNA and forensic evidence, logbooks, field notes and witness statements, among other discoverable items. Prosecutors must generally provide this information. If they refuse, a defense attorney can file a motion to compel their production. A defense attorney will also want to conduct a separate investigation. This may include visiting a crime scene, interviewing witnesses, or performing tests.  Sometimes, defendants will hire experts to review the evidence and give an opinion. Once discovery has been completed, the defense attorney and the defendant can discuss the evidence and assess the case.

 
PRELIMINARY HEARING: If the prosecutor has not taken a case to the grand jury, a defendant charged with a felony is entitled to a preliminary hearing. At such a hearing, the prosecutor must put on evidence sufficient to demonstrate that there is probable cause that a felony has been committed and that the defendant is the person who committed the crime. This is an opportunity for the defense attorney to evaluate the government's witnesses and to obtain more information about the case. If the judge finds probable cause, the defendant is bound over for trial and asked to enter a plea of not guilty or guilty. The same thing happens if the grand jury returns a "true bill". 


Motions: Sometimes after reviewing the evidence obtained through the discovery process, a defense attorney may file motions to limit the introduction of evidence at a trial or to have a case dismissed altogether. Many times these motions will be made in an effort to suppress evidence obtained through a potentially illegal search or seizure. If the evidence is thrown out, the case may be dismissed. The defense attorney may also file motions to prevent the introduction of evidence which may be irrelevant or so prejudicial as to prevent a fair trial. 

 
Plea bargaining: All trials carry the risk of conviction.  Thus, after a review of the evidence, the defense attorney and the defendant may determine that a negotiated settlement of the case should be considered. Sometimes, a prosecutor will agree to reduce the charges or to make a favorable recommendation regarding sentencing. If an offer is made that provides enough incentive for the defendant to waive the right to a trial, a plea bargain may be entered into between the parties to resolve the case. Before a judge can accept a plea of guilty from a criminal defendant, the judge must determine that the plea is freely and voluntarily given and that the defendant understands the rights that are being waived. Thus, a judge will inquire as to whether the defendant understands that by pleading guilty, the defendant is waiving a trial, waiving the right to confront and cross-examine witnesses, waiving the presumption of innocence, and waiving the right to most appeals. The judge will also want to know whether any threats or promises (other than the plea bargain) have been made in order to get the defendant to plead guilty. Before accepting a guilty plea, the judge must be satisfied that the plea is voluntary and knowing, and that there are facts to support the plea. The judge will then sentence the defendant.  A judge is never a party to the negotiations and is not bound by them. Most times, a judge will consider the negotiations and defer to them. However, a judge may sentence the defendant within the minimum and maximum ranges allowed by law, despite the plea bargain. 


Trial: All persons accused of crimes other than traffic violations are entitled to a trial by a jury. However, cases in municipal court may first be tried to a municipal court judge and then appealed to district court where a jury may be requested. In many misdemeanor and traffic cases, a defendant's case may be tried to judge only for a decision as to guilt or innocence. Nearly all felonies will be tried to a jury. If a jury is requested, a panel will be selected and then pared down by the attorneys and judge to only those who are ostensibly fair and impartial. The jury will then hear the evidence and decide guilt or innocence.  The government has the burden of presenting evidence and proving beyond a reasonable doubt that a defendant is guilty of the crime charged. A defense attorney may cross-examine the government's witnesses to advance the defendant's defense. After the government has presented all of its evidence, the defendant is given an opportunity to present evidence. A defendant is never required to testify at trial. Whether to do so is a decision for the defendant to make with the help of the defense attorney. If the defendant does testify, the government may cross-examine. If a jury finds that the government has not proven its case beyond a reasonable doubt, it should return a verdict of not guilty. If a jury cannot decide, a hung jury may be declared and the case retried. If the jury finds the defendant guilty, the judge imposes the sentence. 


Sentencing: At sentencing, both the government and defense attorney may make arguments and/or put on evidence concerning the appropriate sentence for the defendant. The defendant may move for probation to avoid serving any time in jail. In Missouri, felony sentences are predetermined mostly by the Missouri Sentencing Guidelines and judges must sentence a defendant within those guidelines.  The sentence on a crime governed by the Sentencing Guidelines will be determined by the severity level of the crime and the criminal history of the defendant. Depending on a defendant's criminal history, probation may be automatically granted. If placed on probation, a defendant must report to a probation officer and comply with all sentencing requirements. People on probation usually must refrain from drinking alcohol, obtain substance abuse and mental health evaluations and comply with the terms thereof, obey all laws, and sometimes must perform community service and pay fines. If a person violates one of the conditions of probation, a jail sentence may be imposed. 

 

Appeal: If a defendant has a trial and is found guilty, there may be an appeal. Usually, one appeals some decision of the trial court made during the course of litigation. If the trial court made a mistake, the conviction may be overturned. If the appellate court finds that no mistakes were made, the conviction will stand and the original sentence carried out.

 
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