STATE AND FEDERAL COURT CRIMINAL PROCEDURE

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If you have been arrested for any felony or misdemeanor crime in Pennsylvania, or if you are being investigated for a crime, contact Warner Mariani, LLC, as soon as possible for a free consultation. We Can Help You!

Everyone who is under criminal investigation or is accused of a crime in the United States has legal rights. Those rights include the right to know the charge, face your accusers, and cross examine witnesses. If the police ask to search your house, car, or person, they cannot do so without probable cause or reasonable suspicion, a search warrant, or your consent.

You have the right to an attorney and the right to remain silent. It is strongly suggested that you exercise this right! For someone to be convicted of a crime, the State has to prove its case beyond any reasonable doubt.

My job as your defense attorney is to make sure that the government respects all your rights, and meets their high standard of proof. After over 15 years of experience, Warner Mariani has become quite familiar with the criminal justice system, and can sometimes obtain a victory where a less experienced or well-trained lawyer might not.

Selecting the right criminal defense attorney can mean the difference between suffering the most severe consequences the criminal justice system has to offer, and freedom.

When you or your loved one's freedom is on the line there is no substitute for a skilled attorney who knows the system and can successfully guide you through it. We can start protecting your interests right away with the utmost confidence and confidentiality.

The feeling of helplessness and confusion you are experiencing can be alleviated once you have a professional advocate on your side, who has helped hundreds of people just like you through the worst of legal difficulties.

Every client who retains our services is important and we will zealously fight to defend their interests.

All consultations, whether over the phone, e-mail or in-person are completely confidential and protected by the attorney-client privilege and attorney duty of confidentiality, even if you do not retain Warner Mariani, LLC. We will consult with you, free-of-charge, for up to twenty-minutes over the phone and provide you with a quote for services. If your matter is highly sensitive due to current law enforcement investigations, then you will be advised to come into the office for an in-person consultation.

During a consultation, you will learn about your legal rights, and the possible legal strategies that will protect you. We will give you a road-map of what the future might hold for your case. We will also give you a picture of how we would best defend you.

Warner Mariani, LLC, provides quality and competent trial and appeal representation for the following crimes:

Criminal Law (Federal & State Court Representation):

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  • Theft
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  • White Collar Crimes
  • Wire Fraud
  • Other alleged violations of State or Federal Law

STATE COURT PROCEDURE:

In Pennsylvania there are sixty-seven (67) counties. Each county has their own government. Relevant to criminal procedure and someone charged with a crime is that each county also has what is called the "minor judiciary", also known as a magistrate or district justices.

They were known at one time as justices of the peace. Each county also has a Court of Common Pleas who has jurisdiction or responsibility over crimes that are alleged to be committed in the county where the Court is located. The chief law enforcement officer of each of the sixty-seven (67) counties is an elected official know as a District Attorney. It is the district attorney's responsibility to prosecute criminal activity in the minor judiciary and in the Court of Common Pleas of the county where he is located.

The following process describes how a prosecution usually proceeds through the court system in Pennsylvania after a crime is allegedly committed:

1. The Police Investigate

After being notified that a crime may have been committed the police investigate. This investigation may include:

  • Interviewing the victim if one exists;
  • Interviewing witnesses and/or suspects;
  • Collecting physical evidence;
  • Visiting, viewing, photographing and/or measuring the crime scene;
  • Identifying suspects through photo arrays or line-ups, etc.

This stage lays the ground work stage for the steps that later follow. It is the police investigation that often times comes under attack at a trial of a criminal defendant by an experienced criminal defense attorney. It is this stage that determines who the police arrest and what crimes they charge as being committed. The police's choices as to what crimes are charged also will come under attack later in the criminal justice process.

2. The Police File a Complaint

Police start the criminal process by filing a complaint with the district justice or by making a warrantless arrest followed by the filing of a police complaint. It is at this stage that the suspect becomes the defendant. The complaint filed by the police is to identify the defendant, list the crimes charged, and contain a brief factual summary upon which the charges are based usually known as an affidavit of probable cause.

3. A Private Complaint May Be Filed

The police may decline to file a criminal complant against a suspect. In Pennsylvania, an individual is permitted to file what is known as a private criminal complaint.

The office of the District Attorney of the county where the crime is alleged to have been committed must first "approve" the private complaint. If and when the private complaint is approved, the defendant is usually notified of the charges via registered mail. At the time the defendant is notified via mail of the charges filed, he or she is also notified of a time and place for a preliminary hearing to be held before a magistrate. If the defendant fails to appear for the preliminary hearing, a warrant will be issued for their arrest.

4. A Summons or Arrest Warrant is Issued

The police may decline to file a criminal complant against a suspect. In Pennsylvania, an individual is permitted to file what is known as a private criminal complaint.

The office of the District Attorney of the county where the crime is alleged to have been committed must first "approve" the private complaint. If and when the private complaint is approved, the defendant is usually notified of the charges via registered mail. At the time the defendant is notified via mail of the charges filed, he or she is also notified of a time and place for a preliminary hearing to be held before a magistrate. If the defendant fails to appear for the preliminary hearing, a warrant will be issued for their arrest.

5. A Preliminary Araigment is Held

Whether or not an arrest warrant was issued by the magistrate, or if the criminal proceedings were started by a warrantless arrest, the defendant must appear before the district justice for a preliminary arrangement. The defendant at this time is provided with a copy of the complaint and advised of his or her rights. The time of the defendant's preliminary hearing is scheduled usually not less then three days but not more than ten days from the date of the preliminary arraignment.

At this time, the defendant's bond is also set by the district justice. A bond is the amount of money a defendant must post to permit the defendant to be released from jail pending trial. The purpose of the amount of the bond is not to punish a defendant or to hold them in jail, but to secure his or her presence at future court proceedings. A bond is usually set based on a defendant's prior record, if any, and the seriousness of the charges; for example, whether the charges are felonies or misdemeanors.

At times, the bond is set in too high for the defendant and he or she cannot afford to pay that amount. If that is the case, the defendant has the right to ask for a bond reduction at his or her preliminary hearing. If that request is denied or the amount of the bond is not reduced sufficiently, then a bail reduction hearing in the Court of Common Pleas can be scheduled. A bail reduction hearing in the Court of Common Pleas can also scheduled prior to the time set for a preliminary hearing.

6. A Preliminary Hearing is Held

A preliminary hearing is held for a defendant before a district justice. At the time of the preliminary hearing, the Commonwealth, by law, is required to present a prima facie case or, in other words, present evidence that a crime has been committed and that the defendant is probably the perpetrator of that crime.

A preliminary hearing is a vital part of the criminal justice process in Pennsylvania. It is the first time that a defendant, through his or her lawyer, has the opportunity to confront his or her accuser or accusers. It is also the first time that the defendant gets to see presented in a court of law the evidence that the government may have of his or her guilt and challenge it. It is also the last time prior to trial in most case that the defendant has the opportunity to confront the witnesses and challenge the evidence. A preliminary hearing is also a time when the attorney for the defendant can negotiate with the prosecution and the police for the reduction of charges or the withdrawal of some or all of the charges.

Needless to say, it is important to have a lawyer with you at the preliminary hearing to secure your rights. The preliminary hearing is a critical stage of the process. If a prima facie case is not presented, some or all of the charges will be dismissed and the defendant discharged. If sufficient evidence is presented, the case will be held for court and the charges moved to the Court of Common Pleas.

7. An Information is Filed By The District Attorney

After holding a case for court, the district justice will send notice to the county clerk of courts who in turn will notify the district attorney of he charges. The district attorney's office will then file a formal charging document, called an information, with the clerk of courts. The information will specify in particular counts the offenses charged against the defendant. At this stage, the district attorney may exercise discretion and terminate the prosecution by declining to file an information or by adding or deleting charges.

8. The Defendant has a Formal Arraignmentt

The next proceeding is the formal arraignment, which may or may not occur before a judge of the Court of Common Pleas. In Allegheny County, where Pittsburgh is located, neither the judge nor the district attorney is present. The defendant is provided with a copy of the information and advised of his or her rights, including his rights to file various pretrial pleadings within a specified period of time. All pretrial motions, including requests for a bill of particulars and discovery, and motions for continuance, severance or joinder, suppression, etc., should be filed within thirty (30) days after the formal arraignment has occurred.

9. A Pretrial Conference Is Held

Generally, at a pretrial conference, the defendant, his lawyer, and an assistant district attorney will appear before the assigned judge or his or her staff and the scheduling of the case will occur. All other pretrial matters, or the scheduling of pre-trial matters, should also be resolved at the pretrial conference. The defendant may elect at this time to plead guilty, or to proceed to a jury or non-jury trial.

Prior to trial, the defendant, through counsel, may file pre-trial motions challenging the sufficiency of the evidence or raising issues such as whether the police illegally searched property or illegally seized evidence.

This is done in what is called an Omnibus Pre-Trial Motion that is required by rule to be filed within thirty (30) days of the formal arraignment. These issues are resolved prior to trial, and if a defendant's lawyer raises and argues issues successfully, then evidence may be suppressed or charges dismissed. If that occurs, no trial is held and the defendant is discharged.

10. A Trial Is Held or a Plea Is Entered

A defendant who is pleading not guilty has a right either to a non jury trial before only a judge or a jury trial before twelve citizens. Obviously, it is vital to have competent representation at this stage to advise a defendant how to proceed: whether by way of a jury trial, non jury trial, or by entering a plea of guilty.

At a trial, the case for the Commonwealth is presented by an assistant or deputy district attorney who must establish the defendant's guilt beyond a reasonable doubt.

The defendant is under no obligation to present evidence or testimony, but may do so if he wishes. If tried by a jury, the jury must return a unanimous verdict; if tried non-jury, the judge must return the verdict. If a defendant is found not guilty, he will be immediately discharge

If found guilty, the defendant may be sentenced immediately or sentencing may be deferred pending a pre-sentence investigation into the defendant's background.

If sentencing is deferred, the defendant is subsequently returned to court and sentenced; at any sentencing hearing, an assistant district attorney will appear and present the Commonwealth's position. If the defendant was on bond prior to trial and is found guilty or pleads guilty, bond may be revoked at this time and the defendant lodged in the county jail pending sentencing.

If a case proceeds by way of a jury trial, the steps are as follows:

  • the defendant fills out a form indicating that he or she wishes to waive his right to a jury trial;
  • the judge questions the defendant to find out whether the waiver of the right to a jury trial is done knowingly, intelligently, and voluntarily by the defendant after the defendant has had ample opportunity to consult with an attorney;
  • after having the option to have a brief opening statement, the prosecutor calls his witnesses, after which the defense may cross-examine the witnesses;
  • prior to the opening of the prosecutions case, the defense attorney also has the option to make a statement;
  • the prosecutor rests, or closes the Commonwealth's case;
  • the defense may call witnesses, if it wants, and the prosecutor may cross-examine the defense witnesses;
  • the defense rests;
  • the prosecutor may present "rebuttal" witnesses/evidence to challenge evidence presented by the defendant during his phase of the trial;
  • the prosecutor rests;
  • the defense presents a closing argument to the judge;
  • the prosecutor presents a closing argument to the judge;
  • the judge returns a verdict.

A defendant may choose to waive his right to a trial and enter a plea of guilty, which admits his guilt of the crimes charged. Often times this is done after negotiations between the prosecution and the defense attorney. If, after a defendant elects to plead guilty, a plea hearing will be conducted at which time it will be determined whether the defendant is knowingly and voluntarily entering a plea of guilty to the charges against him. If and when the judge accepts the plea, the defendant may be sentenced immediately or sentencing may be deferred pending a pre-sentence investigation into the defendant's background. If sentencing is deferred, the defendant is subsequently returned to court and sentenced.

11. A Sentencing Hearing Is Held

In Pennsylvania the sentencing for a crime can be the most confusing part of the criminal process. Most often, sentences are at the judge's discretion; however, in Pennsylvania there are a number of mandatory minimum sentences that must be imposed if a defendant is convicted of a specified crime.
At the time of sentencing, the judge will consider the information in the pre-sentence report before determining the sentence. The parties may correct factual errors in the pre-sentence report and offer additional evidence relevant to the judge's sentencing decision. The judge will also consult the "sentencing guidelines" (established by the Pennsylvania Commission on Sentencing as a reference for framing an appropriate sentence throughout the state, considering factors of the crime and the defendant's criminal background) to determine the minimum jail/prison sentence. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.

12. An Appeal Is An Option

Once sentenced, and whether he or she proceeded by non jury, jury, or guilty plea, the defendant has a choice of seeking review in the trial court or through an appeal to an intermediate appellate court called the Superior Court of Pennsylvania. If review is first sought in the trial court and denied, the defendant may then appeal to the Superior Court. If the defendant's appeal to the Superior Court is unsuccessful, the defendant has a discretionary appeal to the Supreme Court of Pennsylvania.

FEDERAL COURT PRIMER:

1. Initial Appearance

Once arrested and processed at a federal detention facility or the local county jail, the next thing that happens is that the defendant will be transported to the local federal courthouse -- usually within 24 hours, unless he or she is arrested on a Friday or weekend -- to appear before a federal magistrate judge. Prior to being taken to Court the defendant will most likely receive a visit from a pre-trial services officer. This individual will ask the defendant basic questions like name, address, ties to the community, finances (what is owned, how much money the defendant has in the bank, etc.) and criminal history.
The officer will prepare a pre-trial services report which will recite the information the defendant provided. It will also include the defendant prior record or "rap sheet", if one exists. Finally, it will include a recommendation to the judge for bond. The purpose of the initial appearance is to advise a defendant of the charges filed, the arraignment date, to determine if the defendant will hire an attorney, or if one needs to be appointed, and to determine bond.

At this point the defendant will find out several things. Along with finding out the charges, the defedant will find out if he or she has been charged as a result of a complaint or indictment. Third, the defendant will find out if they will be given a bond, and, if so, how much in bond will be. Depending on the type of case and the defendant's personal particulars, the Government may ask for pre-trial detention (PTD). If the defendant has already hired an attorney and the attorney is ready to proceed, and if the Government is likewise ready to go forward, then a bond hearing or PTD hearing may occur at this time.
However, if a defendant has not hired an attorney, or the Government asks for a three (3) day delay that they are entitled to under the law to prepare for the PTD hearing, a bond hearing will be scheduled for a later date.

2. The Bond or Pretrial Detention Hearing

This hearing will not occur if the defendant received a bond at the initial appearance hearing and was able to post it, or right before the hearing the defense attorney and government were able to agree to a bond that the defendant will be able to post.
The other possibility is that for tactical reasons, the defense attorney has agreed to pre-trial detention. Otherwise, the defendant will have a hearing to either (1) reduce the bond received at the initial appearance or fight the government from getting a pre-trial detention order from the magistrate judge. In either case, the main issue is whether or not the defndant is a danger to the community or a risk of flight.

In most cases the government must show the presence of either of the two (2) above mentioned factors. However, in some cases (for example, most drug cases) these factors are presumed to exist and it is up to defense counsel to overcome these presumptions. After the hearing, the judge will decide whether to reduce bond or grant a bond, depending on the type of hearing. This decision can be appealed by either party to the district judge who will either affirm or overrule the magistrate judge.

3. The Arraignment

At this point, the defendant has either hired an attorney or the Court has appointed one. The arraignment is for the purpose of reading the indictment to the defendant and then to enter a plea of not guilt, and request a trial by jury. The defendant will also be informed as to who the trial judge will be. If defense counsel is experienced, this will give him or her an idea of what the defense is up against. Judges are not all the same. Some are fairer than others.

4.The Discovery Process

This is probably the longest stage. Between the arraignment and trial (or change of plea) the defense attorney will start receiving from the government discovery. Basically, this is all the documents, reports, tapes, videotapes, etc. that the defendant is entitled to receive and review before the trial. The attorney will review this information with the defebdant. What the defense will not get in discovery is a list of witnesses or the opportunity to take a deposition of these witnesses (unlike some State criminal cases and all civil cases, for example). Discovery will often provide the information needed to support one or more defenses. It can also serve to convince the defense that a plea might be in their best interests.

5.Pre-Trial Motions

Depending on the facts of the case and/or the legal principles that apply, defense counsel may draft certain pre-trial motions which might also require a hearing. The most common pre-trial motion is the Motion to Suppress. This is a motion asking that judge to throw out or suppress certain evidence because it was obtained as a result of an illegal search. (It is not a motion to dismiss the case -- although if the evidence is suppressed it might lead to the case being dismissed.) Usually a hearing on a motion to suppress is held. After the hearing the judge issue its final ruling on whether to grant or deny your motion or motions. Examples of other motions that may be filed are Bills of Particular, Motions to Dismiss, Motions to Compel Discovery, etc.

6.Plea Negotiation

After discussions with defense counsel, and review of discovery, it may now appear certain that going to trial might be a losing proposition. Almost 95% of all federal cases are disposed by way of plea. Of the remaining cases that go to trial, more than 80% result in guilty verdicts. Defense cunsel may now, with your consent, speak with the government about reaching an agreement. Keep in mind that these types of discussions might occur throughout any of these steps. There are cases that are resolved even before an arrest takes place. In other instances, plea negotiations may begin right before the trial is set to start. It all depends on the particular circumstances of the case and the parties involved.

Defense counsel should have by now explained to the defendant the specific application of the federal sentencing guidelines. Basically, there are several options available to any defendant. The first option is to go to trial. If the defendant wins, he walks. If he loses, however, then the defendant will not be able to avail themselves of some of the benefits of the guidelines.
The second option is to work out a plea agreement with the government. This plea might include an agreement as to some of the guideline enhancements or reductions. Defense counsel should carefully review the plea agreement, and negotiate with the government any changes the defendant feels are absolutely necessary. Once there is a final agreement, all of the parties will sign the plea agreement.

7.Change of Plea

If a plea agreement has been reached between the parties, the next step is the change of plea hearing. The basic purpose of this hearing is for the defendant to change his plea from not guilty to guilty.

However, before the Court accepts the change of plea, he or she will ask a litany of questions the purpose of which is to make sure the defendant understands exactly what they are doing. The Court will want to make sure that the defendant is not mentally ill, under the influence of drugs or alcohol, and that the defendant has not been threatened or coerced into pleading guilty.

The defendant must understand all of his or her rights before they are allowed to give up the constitutional right to trial. Also, the judge will be informed of any plea agreements must approve the plea and the agreement between the defense and prosecution. At the conclusion of the hearing, the Judge, if the plea is accepted, will find the defendant guilty and order a presentence report.

8.Trial

If a plea agreement has been reached between the parties, the next step is the change of plea hearing. The basic purpose of this hearing is for the defendant to change his plea from not guilty to guilty.

IHowever, before the Court accepts the change of plea, he or she will ask a litany of questions the purpose of which is to make sure the defendant understands exactly what they are doing. The Court will want to make sure that the defendant is not mentally ill, under the influence of drugs or alcohol, and that the defendant has not been threatened or coerced into pleading guilty.
The defendant must understand all of his or her rights before they are allowed to give up the constitutional right to trial. Also, the judge will be informed of any plea agreements must approve the plea and the agreement between the defense and prosecution. At the conclusion of the hearing, the Judge, if the plea is accepted, will find the defendant guilty and order a presentence report.

If a case proceeds by way of a non jury trial, the steps are as follows:

  • after twelve acceptable jurors are selected, the judge administers an oath to the jury and reads basic instructions about the trial process, etc.;
  • the prosecutor gives an opening statement to outline his case and evidence to the jury;
  • the defense may, though he or she is not required to, give a similar opening statement, or wait until later in the trial;
  • the prosecutor calls his witnesses, after which the defense may cross-examine the witnesses;
  • the prosecutor rests, or closes the Commonwealth's case;
  • the defense may call witnesses, if it wants, and the prosecutor may cross-examine the defense witnesses;
  • the defendant is under no obligation to present evidence or witness, and
  • the defendant is not required to testify;
  • the defense rests;
  • the prosecutor may present "rebuttal" witnesses/evidence to challenge evidence presented by the defendant during his or her phase of the trial;
  • the prosecutor rests;
  • the defense attorney presents a closing argument to the jury;
  • the prosecution presents a closing argument to the jury;
  • the judge gives the jury detailed legal instructions about the charged crimes, the deliberation process, etc.;
  • the jury deliberates and returns a verdict;
  • if the jury is deadlocked and cannot return a verdict, the judge declares a mistrial and the district attorney has the option to re-try the defendant.

9.The Presentence Investigation

Upon a plea or a conviction at trial the judge orders a presentence investigation. At that point a probation officer is randomly assigned to conduct the investigation. The presentence investigtor will then obtain a copy of the main pleadings in the case including the indictment and the plea agreement (if there is one). He or she will then run a "rap sheet" to find out about any prior convictions. Next, he or she will schedule an interview with the defendant either at their office or at the jail depending on whether or not the defendant is out on bond. Defense counsel has the right to be present.

The probation officer will ask the defendant during this interview about: (1) identifying information such as name, alias, address, date of birth, social security number, etc.; (2) family history such as the names, ages, and occupations of family as well as a general account of the defendant's personal history; (3) employment history; (4) physical and mental condition as well as any history of substance abuse; and (5) financial condition including a complete listing of assets and liabilities. The officer will also ask about criminal history.

10.Sentencing

By now the defense will have a rough idea of the sentence to be received. The hearing begins by the judge asking if the defendant has reviewed the presentence report.

The judge then asks the attorneys if they have any objections or modifications to the report. The Court will then consider the objections and modifications requested by either party. In some cases the Court may hold an evidentiary hearing. After the Court has considered all of these matters, the defendant will be asked to stand, and asked whether there is anything the defendant wishes to say. Thereafter, the Court will impose the sentence.

11.Post-Sentecing Procedures

After sentencing, there are only several options left. First, is an appeal of the conviction and sentence. It is important to note that an appeal is not a second bite at the apple or a re-trial.

Rather, it is an opportunity to ask an appellate court to review the trial court's decisions before, during and after trial. If the appellate court finds that the trial judge's decision or decisions were incorrect and that the decision or decisions were not harmless, then they will order a new trial. On rare occasions the appellate court may also find that there was simply insufficient evidence for a reasonable jury to have convicted the defendant.