Criminal Court Procedures

Your Initial Appearance – Arraignment

In Georgia your first court appearance will happen within 48 hours of your arrest, or 72 hours if there was an arrest warrant. Your arraignment is the first time you go before a judge or magistrate. It is then that the judge will tell you what you are being charged with and inform you of some of your rights.

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If there was no arrest warrant the judge will review the circumstances of the arrest and make sure that there was probable cause to: 1) determine that a crime was being or had been committed and, 2) that you were the person who committed it.

At this informal stage, you, as the defendant, are not allowed to present evidence. However, you are entitled to have an attorney present. Sometimes, in the cases of intoxication or unruliness, the first appearance will be done in your absence.

At this initial appearance the judge will also tell you that if you are charged with a felony, you have a right to a commitment hearing (sometimes called a preliminary hearing). If you decide to not have a commitment hearing, or have been charged with a misdemeanor (but want to plead “not guilty”), the judge can set your bail and set a trial date.If you are charged with capital murder you cannot waive your right to a commitment hearing.

Bail

When a judge allows your release, he sets bail as a way to ensure you will return for further court proceedings. If a judge thinks the charges are too serious for you to be out on the streets or if she thinks you may not return, bail can be denied. If a judge thinks you may not return for further court proceedings, she may refer to you as a “flight risk”. However, quite often a bond will be set.

Many times the judge will allow you to be released by posting 10% of the bond, called a “cash assurity” bond. When this is not the case, the full amount of the bond can be posted with cash, property, or by using the services of a bail bondsman.

If you are released on bond and fail to show up for future court dates, you will not only lose the money, or property you put up, but you will also be charged with “failure to appear” and a warrant will be issued. Bail is not an option in all felony criminal cases.

Commitment Hearing

If you choose to have a commitment (or preliminary) hearing it may happen the same day as your first appearance, or it may have to be scheduled some day in the future. Typically, if you are having a commitment hearing it is because you plan to plea “not guilty” to the charges you face.

The commitment hearing is similar to a trial, only on a smaller scale, and it is not used to determine guilt or innocence. This commitment hearing forces the prosecutor (often referred to as “the State”) to show the judge there is enough probable cause to send the case to trial.

At this stage of the pre-trial process you (and your attorney) will be allowed to present evidence. If it is determined that there is not enough evidence for the case to go to trial, the charges may be dropped or the case dismissed. But if the judge decides there is enough evidence he will set a trial date.

If you are charged with a misdemeanor, you have no right to a commitment hearing.

Getting Ready for Trial

During this period the trial may be postponed or continued many times. Continuances may be filed by either the prosecution or the defense when they have a legitimate reason to change the trial date.

There can be many reasons for a continuance. One or more of the parties may have a scheduling conflict on the set date. Either side may need more time to gather evidence and prepare for trial. Continuances can be frustrating and add several months to the trial process. They can work for you, however, in ensuring you and your attorney can be completely prepared for your trial.

Prior to trial, a jury must be selected. In a process called voire dire the prosecution and defense attorneys go through a large pool of potential jurors to determine who will sit in the jury box at your trial.

Plea Bargaining

Plea bargaining can happen at nearly any stage in the criminal trial process. A plea bargain is where the prosecution lowers the charge in exchange for a guilty plea. The plea bargain is a sort of negotiation between the prosecution and the defense. The prosecution may realize that they do not have quite enough evidence to make the trial an easy one. By offering you a “plea deal” they can ensure your conviction, without having to go to trial.

Plea bargaining can work in your benefit if you and your attorney come to the realization that the prosecution may have a good case against you. If you think that a jury or judge may find you guilty anyways, it can make more sense to plead guilty to a lesser charge thereby avoiding the heavier sentence that goes with the more serious charge.

Nolo Contendere (no contest pleas)

In the State of Georgia you can enter a plea of nolo contendere for misdemeanor or felony charges, with the consent of the judge. A plea of nolo contendere (also known as no contest) is not seen as an admission of guilt and can’t be used against you as an admission of guilt.

However, it is important to note that if you enter a nolo contendere, you can be sentenced similar to a guilty plea.

Trial

The trial date has arrived and both the prosecution and defense are ready to argue their cases. The prosecution needs to prove to the jury that you are guilty “beyond a reasonable doubt”. The defense the, only has to give the jury a reason to “doubt” your guilt. The stages of a trial go in a specific order:

1. Opening Statements
2. Presentation of Evidence
3. Closing Arguments
4. Judge’s Instructions to the Jury
5. Jury Deliberations
6. Verdict

The trial begins with opening statements from the prosecution. These opening statements are kind of an introduction to the trial. At this time the prosecuting attorney will tell the jury what they intend to prove and describe how they will show the defendant’s guilt.

Once the prosecution is done, the defense can also share opening statements with the jury. The defense attorney, should they choose to make opening statements, will tell the jury how they intend to dispute the charges. Sometimes your defense attorney will decide not to make opening statements and the trial will move to the presentation of evidence.

The presentation of evidence is the meat of the trial. This is where both sides argue their case. The prosecution tries to prove “beyond a reasonable doubt” that you are guilty. The defense works on your behalf to show the jury that you are innocent of the charges.

Evidence is shown and witnesses may testify both for the prosecution and in your defense. Both sides take turns until all of the evidence is presented.  Before the jury makes its decision both parties can give closing statements, to summarize the case for the jury.

Before the members of the jury leave to make a decision, the judge will remind them of their duty and any rules they must follow. Jury deliberations can take minutes or days.

Once the jury has reached a decision, however, they return to the court to make their decision known. The judge, after hearing the jury’s decision will enter the verdict, be it guilty or not guilty. If you are found guilty, the judge will either immediately move to sentencing procedures, or set a later date for your sentencing.