Overview of Criminal Procedure

Posted on by Townsend Myers

Felony CrimesThe following is a brief chronology of a typical criminal case in New Orleans from arrest to Sentencing. It is provided to give you a basic understanding of what you are facing if you have a pending criminal case. Nothing can substitute for a consultation with a qualified attorney, so if you have charges pending, you can call me immediately at (504) 571-9529, text me at (504) 237-5245, or email me using the “Contact Us” form to the right of this page. I promise your request will be answered immediately.

Arrest

If you are arrested for a crime in Louisiana, in most cases you will need to post a bond to be released from jail pending the resolution of your case. In the case of less serious crimes, the bond amount will be preset based solely on the nature of the crime. In any event, your first goal will be to get out of jail. Click here for more information on the subject of getting out of jail

First Appearance/Bond Hearing

If you are arrested for a felony crime, you will have to appear before a Magistrate judge for a bond hearing, at which time the judge will set a bond based on the nature of the charges, your prior record, and the likelihood that you will return to court for trial.  Louisiana law requires that the bond hearing be held within 48 hours of a defendant’s arrest. The bond set by the court must be paid or the defendant will be required to remain in jail until trial.

Review of Case by District Attorney

After arrest and initial appearance, the District Attorney’s Office reviews all arrests to determine if  formal criminal charges will be filed. If a defendant is in jail, the District Attorney has between 45 and 60 days in most cases to make a “screening” decision. If a defendant is out on bond, the D.A. has as long as four to six years to decide. If the D.A. chooses not to file formal charges, the case is over and the defendant is released (a defendant who has made bond is released from the bond obligation). If charges are filed, the case is sent to the Clerk of Court to be allotted to a trial section of Criminal Court.

Acceptance and Allotment of Charges

Prosecution of most misdemeanors and felonies is done by Bill of Information, a formal document filed by the District Attorney charging a defendant with specific criminal conduct. For more serious felonies, an indictment by a Grand Jury may be required. Once the information or indictment is received by he Clerk of Court, the case is allotted randomly to one of the trial sections of Criminal Court. In Orleans Parish there are 12 trial sections of court. The case is then set on the Court’s docket for arraignment.

Pre-Trial Proceedings

At the arraignment, a defendant typically appears with is or her attorney to enter a formal plea to the charges. In most cases a plea of “not guilty” is entered at arraignment, although it is possible to plead “guilty” at arraignment. An attorney can advise what the best possible plea is in any particular case. At arraignment, an attorney will typically file a variety of pre-trial motions designed to either learn more about the case (discovery motions) or to make legal objections to the prosecution of the case (motions to suppress evidence or statements, etc.) based on potential violations of a defendant’s rights. All pre-trial motions must be heard and disposed of before a case is set for trial.

Plea Bargaining

During the time a criminal case is pending, an attorney may engage in plea bargain negotiations with the District Attorney and the judge. The goal of plea bargain negotiations is to arrive at a plea that is acceptable to the defendant, the District Attorney and the Court. Most often this involves an attempt by a criminal attorney to negotiate a reduction or dismissal of the charges, or a reduction of the potential sentence. It is extremely important to have an attorney who is skilled in advocating for a criminal defendant in plea bargain negotiations as a large majority of criminal cases are resolved in his manner.

Trial

If negotiation of a plea is not advisable, or is otherwise not successful, a case will be set for trial. In Louisiana a criminal defendant has a right to a trial by judge alone for misdemeanors, and by judge or jury (at the defendant’s request) for all felonies. In the case of a judge trial, the judge decides all matters of law and fact, as well as the ultimate issue of guilt or innocence. In a jury trial, the judge decides all matters of law (such as admissibility of evidence, etc.) and the jury decides all matters of fact, including the ultimate issue of guilt or innocence. For minor felonies, juries of 6 persons must reach a unanimous verdict. For major felonies, juries of 12 are sworn, and 10 of the 12 must agree on a verdict.

Sentencing

If a criminal defendant is found guilty either by judge or jury, or pleads guilty pursuant to a plea bargain, the defendant is sentenced by the trial judge. In the case of plea bargains, most sentences are pre-arranged with the District Attorney and the judge prior to the entry of the plea. In the case of a guilty verdict at trial, a defendant is sentenced by the judge within a certain range as provided by the particular Louisiana criminal statute the defendant was convicted under. In these instances, a criminal attorney will need to provide the judge with information and evidence sufficient to request the lighted possible sentence the law allows.

 

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