Criminal Process

If you’ve been arrested, chances are you’re deeply concerned and have many questions about the criminal process. Below is an overview of commonly-used legal terms and the criminal process in Montana.

An Arrest is not a conviction. It simply means that the police have probable cause to believe that a crime was committed. Probable cause is a subjective standard, but essentially means that in the view of the police, a law was probably broken or a wrong was done.

Miranda Rights have become a familiar term from television shows, but there are misconceptions. Miranda Rights originated from a US Supreme Court case, Miranda v. Arizona, in which the Supreme Court set forth that the police must tell a suspect his right to remain silent, that anything said can be used against in court and that a suspect has a right to an attorney. These rights must be presented at arrest, prior to interrogation or questioning.

It is a common misconception is that if you are not read your rights, you go free. In reality, Miranda Rights only serve to protect suspects from incriminating themselves after an arrest. In the event you were not read your rights, yet gave a statement or said things to the police that might incriminate you during an interrogation, it may be possible to “suppress” the evidence by motion.

However, it is possible to waive the right to remain silent by either stating as much, signing a waiver, or voluntarily making a statement.

The decision to charge for a crime rests with the government – generally an assistant prosecuting attorney who reviews the case file and determines if there is sufficient reason to file charges. Sometimes charges are filed with no investigation!

Bail – an amount of money or a pledge of property designed to ensure a court appearance – is most likely set by the court, if the suspect is charged with a crime. Sometimes the court will reduce the bail amount at the request of an attorney.

Arraignment is the first appearance before the court in which a plea is entered. The court will then set the next date to allow for an exchange of information between the prosecutor and the lawyer, and possible negotiations.

Discovery is the pre-trial phase in a lawsuit in which each party can request documents and other evidence from other parties and can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production of documents and depositions. Suspects are entitles to receive all information the prosecuting attorney has regarding a case, including information which may be beneficial. The prosecutor may not pick and choose what information to provide.

Plea Bargaining. It is common for the prosecution and defendant to engage in plea bargaining in which a reduction of the charges or some incentive by the prosecution is presented to resolve the case between the parties. Plea bargaining can be useful and can take the risk out of the criminal process because whether a resolution is agreed to is voluntary. A good lawyer begins immediately to position the case for favorable resolution.

By the constitution, suspects are guaranteed a right to a jury trial and the right to confront the accuser, scrutinize their evidence and cross-examine. When this option is chosen, the outcome rests with the jury.

Sentencing – If a guilty plea is entered pursuant to a plea bargain or if found guilty at trial, a judge will sentence you at a hearing where there a statement can be made to the court, if desired, and . At this hearing you will be entitled to make a statement to the court, if desired, and possibly produce evidence and testimony which may convince the court to lessen the punishment. If sentenced pursuant to a plea bargain, the sentence recommended by the prosecutor which has been agreed on is generally accepted by the court, so there is no need to present evidence.

If convicted at trial, there is a legal entitlement to appeal the decision, though the grounds for such an appeal are limited. In other words, if the case is not re-tried, the appellate court looks for error in the application of the law, procedural errors at trial or other errors in the process. If a plea bargain is accepted, the right to an appeal is waived.

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