The
Criminal Defense Process Part 3 – Arresting a Defendant
Hello, my name is Brandan Davies. I am a criminal
defense lawyer based out of Overland Park, Kansas with the law firm of Copley
Roth & Davies. In this video, I am going to be talking to you a little bit
about an arrest. Now an arrest can occur in a couple of different ways. One of
the most common ways is for an officer to witness a crime, establish or develop
probable cause that a crime has been committed and that the person committed
it, and then take a person into custody. Now a police officer can do this and
they can hold you up to 48 hours before you are charged with a crime. Another
way that an arrest can occur can be execution on an arrest warrant. This is
whenever a prosecutor has obtained some evidence from the police during a
police investigation, they have made the decision to charge someone with a
crime, the prosecutor has went through the process of obtaining an arrest
warrant from the judge, and then the arrest warrant has been issued to the
sheriff or a law enforcement officer to go out and arrest a person based on
that warrant. Now in both of these instances, a person will be taken into
custody and then shortly thereafter, will be brought in front of a judge to
establish bond or a bond amount. For more information on the criminal defense
process, please watch our next video on bonding and how that works.
The
Criminal Defense Process Part 4 – Establishing a Bond
Hello, my name is Brandan Davies. I am a criminal
defense lawyer with the law firm Copley, Roth & Davies based out of
Overland Park, Kansas. In this series of videos, I am walking you through, from
start to finish, a criminal defense case. In this video, I am going to be
talking about bond. Now, after an allegation that a crime has been committed,
after the district attorney’s office has charged someone with a crime, and after
that person has been arrested, we get to bond. What bond is, is it is
essentially a promise that a person will come back to court. And in some cases,
your promise may not be as good as your word so the judge will establish an
amount of money or some sort of other condition that will ensure that you come
back to court. Now, when bond takes place at the beginning of a case, a judge
is going to consider a lot of different things when they set an amount for
bond. They are going to look at your criminal history. They are going to look
at the severity level of the crime in which you are charged with. They are
going to look at your past crimes and if you failed to appear at court on those
crimes. They are going to look at the likelihood that you return to court on
this case and then they are going to look at the safety of the community. The
judge is going to weigh all of these factors and then they are going to
establish an amount of money, or bond, that you would have to pay or secure
with the court for you to be released, pending your upcoming case. Now, there
are lots of other things that a judge can do as well. It is not limited to just
an amount of money. The judge can set other conditions. The judge can put you
on house arrest. The judge can make you have a remote breath unit if they think
you have an alcohol or drug problem they want to monitor. They can put you on
GPS tracking. They can put you with pretrial services. There are hosts of
different things that a judge can make you do while on bond to secure that you
are going to come back to court or address some sort of problem that the judge
thinks you have. Now, a bond amount or bond conditions will vary widely
depending on you and your case. And at some point, you will get a chance to
argue those conditions or argue for a bond if one has not been established, or
a bond that has been established that is too high for you to make. This is when
your criminal defense lawyer comes in. For more information on bond, and how
bond works, and when you will be able to talk about adjusting your bond for a
motion to modify your bond, please watch our next video on first appearances.
The
Criminal Defense Process Part 5 – What Happens at your First Appearance?
In this video, I am going to be talking about first
appearance. Now, first appearance is your initial court date. This will be the
first time getting your chance to be in front of a judge about your case. First
appearances, a lot of people think is a time when you are going to get to argue
your case and you are going to get to talk or address the allegations against
you. That is simply not true. First appearance is mainly a housekeeping type
appearance. It is going to have a couple of minor things that can be talked
about that will impact your case. The primary one is modifications to bond. At
your first appearance, the judge has to do a few procedural things like read
you your charges and make sure that you understand what you are charged with,
talk to you about if you have a lawyer or if you have the funds to hire a
lawyer, and things like that. The main thing that is going to happen at your
first appearance is that you are going to be able to talk or make a motion to
modify any bond that has been set for you. Now, when you originally get
arrested, at the start of the case, the judge will make a bond for you. Usually
that is an amount of money that you will post with the court so that you can
get out of jail. If that bond amount is too high, or there is some sort of
other condition on the bond, at your first appearance is going to be your best
time to try to get those bond conditions modified or the amount lowered. After
you make your motion for bond, the judge will make a determination right then
and there whether he or she wants to allow your bond to be modified. One of the
last things that a judge will do at your first appearance date is talk with
your lawyer and the state’s lawyer about what they want to set your case for,
and what will happen at your next court date, whether it will be a meaningful
hearing like a preliminary examination, or whether it will be just a
scheduling. For more information about how the criminal defense process works, please
watch our next video about initial discovery.
The
Criminal Defense Process Part 6 – Discovery from the State in a Criminal Case
In this video, we are going to be talking about discovery,
or initial discovery in the criminal defense process. now, initial discovery
takes place after you have been charged with a crime, after you have hired your
lawyer, and after your first appearance. In this process, your lawyer will file
what they call a motion for discovery and inspection with the court, and they
will give a copy of that to the district attorney’s office. Once you have filed
that motion for discovery and inspection, the state will begin to produce
evidence. They will produce any evidence that they have against you and give
that over to your lawyer. Now it is not only evidence that shows that you committed
the crime, they also have to produce evidence that shows you did not commit the
crime. Anything that they have under their control that tends to prove that you
did not commit the crime, or helps your case, they have to give you that as
well. Now, how this happens as a practical matter, is after your lawyer has
filed the motion for discovery and inspection, they will get some documents;
usually a police report, a complaint, an affidavit, the first things that are
available to the district attorney’s office. Then, your lawyer will look
through that then, almost invariably, they will elude in those reports to some
other discoverable material. Then your lawyer will communicate with the
district attorney’s office and try to obtain that discoverable material. If
there is some sort of discovery dispute, then your lawyer may file a motion to
compel, and bring it in front of the court for the court’s determination on
whether you are entitled to whatever your lawyer thinks that you are entitled
to as far as discovery purposes. Now once you obtain this discovery, this is
part of your lawyer’s job to look through it and see not only if there are
other things that are discoverable, but is there any evidence that the police
illegally obtained and how can your lawyer suppress that evidence? Also, once
your lawyer has filed the motion for discovery and inspection, the state is
under a continuing obligation to supplement or give to your lawyer any other
evidence that comes in. Initial discovery is a very important process because
it helps frame your case from the outside so that your lawyer can get a good
idea of what he is working with. For more information on the criminal defense
process, please watch our next video on preliminary examinations.
The
Criminal Defense Process Part 7 – What is Preliminary Examination?
In this video, we are going to be talking about a
preliminary examination, or it is commonly known as the preliminary hearing, in
the context of a felony criminal defense case. Now the preliminary hearing is
what most people consider, other than the first bond appearance, their first
appearance the real first meaningful hearing in their case. This is where they
are going to hear evidence against them, they are going to get an idea of kind
of how their case is going out aside from what is just on paper. Now, what the
preliminary hearing is, is it is basically a mini trial. It is a time in which
the state has to meet a low burden in front of a judge for a threshold of
evidence to show a judge a couple of things: one, that a crime has been
committed and two, the defendant is the one who committed the crime. Now they
do not have to show a high burden of proof like beyond a reasonable doubt like
they would at trial, they only have to show that probably cause exists, so it
is a low burden. Most people are bound over on preliminary examinations. Now
what bound over is, is a term that lawyers use that just allows the case to go
forward. In other words, the judge says “I believe that probable cause exists
that a crime has been committed and that the defendant committed the crime.
Just a low burden of proof has been established and I am going to allow the
case to continue.” Now, just because a person is bound over after a preliminary
hearing does not mean that they have lost their case, it does not mean that
they are going to jail, it does not mean anything like that, it just means that
the judge has allowed their case to go forward. Now, many people will say that
since it is such a low burden of proof at the preliminary examination, “Why do
I want to do it?” Well, for your criminal defense lawyer, the preliminary
examination is invaluable. Your criminal defense lawyer gets a chance to
cross-examine the witnesses, gets the chance to view the witnesses, they have
to show up to court so your lawyer gets some insight on their willingness to
cooperate with the police or state in this case, and the lawyer gets an insight
to see how they perform on the witness stand. It can be a good time for your
lawyer to ask them questions and flush out the answers so that they understand
the case better. It can be used as a very good tool for discovery. For more
information on the next step in the criminal defense process for filing motions,
please watch our next video.
The
Criminal Defense Process Part 8 – Filing Motions in a Criminal Case
In this video, I am going to be talking about filing
motions or motion practice in the context of a felony criminal defense case. Now,
motions can be filed in many different times during the progress of a case. The
reason we put it here after the preliminary hearing examination is this is a
time when a lot of motions start being filed in a case. So, what you are doing
when you file a motion is you are requesting the court to make an opinion on
something. It may be as simple as getting a bond modified so you can file a
motion to modify a bond. You are getting in front of a judge, the judge is
getting to read or hear your thoughts on a specific subject, and then the state
gets a chance to respond to your thoughts or give some of their own thoughts,
and then a judge makes a determination on what they want to do, whether it is
wholesale adopt what you think is right, wholesale adopt what the state thinks
is right, or come to some sort of middle ground. Now, after a preliminary
examination, after your lawyer has gotten a large amount of the discovery that
will be produced in the case, has had a chance to hear the witnesses in the
case and get some of their testimony on record, this is when your lawyer a lot
of times will begin to file motions. There is a multitude of motions that can
be filed and this video would be 20 minutes long if we want to do all of them.
But I am just going to go over a couple of ones. A very common one would be a
motion to suppress. Now, once your lawyer looks through the discovery in your
case and he sees maybe a search that was done illegally, or a confession that
was obtained illegally, and that evidence or the fruits of that search or a
confession obtained because of illegal questioning or something like that, can
dramatically impact your case. It can hurt your case. So, obviously if those
things are not in front of the judge, if that evidence is not presented at trial,
then your case gets a lot better. So, your lawyer will file a motion to
suppress. They will say, something along the lines of, “Judge, I have
discovered in the discovery that this, (whatever this is, whether it is a
confession or physical evidence), was obtained illegally, here is the reason it
was obtained illegally, and I believe that the court should exclude that
evidence at trial.” And then the state gets a chance to respond to that motion
to suppress. They will almost invariably disagree and say “No, I do not think
that evidence was obtained illegally and therefore it should come in.” Then the
judge gets to read both motions and decide. Sometimes they will even have
argument on motions, in which your lawyer will go to court and present oral
argument to the judge, in which the judge can then determine who is right and
who is wrong. Another type of motion, which may not have as dramatic of an
impact as a motion to suppress, but like a motion in limine. A motion in limine
is just a motion that is filed before a trial that tends to do a very similar
thing as a motion to suppress. It is saying, to a judge, “This evidence should
not be presented in trial. Maybe it was not obtained illegally but it is going
to be used for an improper purpose” or something along those lines. Now those
are just a couple of different motions. There are literally dozens and dozens
of motions that your lawyer can file based on evidence, based on specific facts
of your case, and how your case was processed. For more information on the criminal
defense process and the next step, or doing discovery on your own, please watch
our next video.
The
Criminal Defense Process Part 9 – Defense Discovery
In this video, I am going to be talking about doing
your own discovery, or defense discovery, in the context of a criminal defense
case. Now, just like in almost every situation you deal with, you do not want
to rely on just one avenue for getting all of your information. You want to do
your own investigation. Now, in a criminal defense case, this is vital because
you do not want to rely on just the police or just the people who are trying to
charge you with a crime or convict you of a crime to produce all of the
evidence in your case. What you want to do is do some discovery on your own.
Now, it is common for a criminal defense lawyer to go out and visit the scene
of an alleged crime. At that time, they can take pictures, or have a private
investigator take pictures. These will be useful when they are trying to lay
out the case or draw out a diagram or make some sort of demonstration to the
jury. The next thing that you will want to do in a criminal case is you will
also want to hire a private investigator. That private investigator can be
invaluable. They can go out, they can interview witnesses, they can interview
witnesses that the police did not interview. If there is a crucial witness in a
case that is against you, that private investigator can do a background search
on them, they can try to find evidence your criminal defense lawyer can use to
impeach that witness. Also, as part of the discovery process on your side, you
can interview experts. If you have an expert that would be relevant to your
case that can help explain a complicated, scientific issue to a jury, you might
want to consult with that expert or even retain that expert to come into court
to explain these types of things. I cannot stress enough that whenever, on any
criminal defense case, the defendant’s discovery is going to be vital to having
a successful outcome in a criminal defense matter. For more information on
criminal defense, and topics like these, please view our website, www.copleyroth.com
for more information.
