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Path of Felony Case in New York

This is a brief walk through of some of the highlights of a New York felony criminal case from arrest through trial. This was prepared by New York City Criminal Defense Lawyer Don Murray.
by

Don Murray

on 4 July 2013

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Transcript of Path of Felony Case in New York

GRAND JURY REALITY CHECK #1
The Grand Jury is required to indict an accused when they believe that it is
possible
that the accused committed a crime.
Arraignment on Indictment
When an accused is indicted he must be arraigned on the indictment. This is when he gets copy of the indictment and can know the charges that he will face at trial.
Grand Jury
Grand Jury decides whether to file
Indictment
against someone.
ARREST!
First Appearance (Arraignment)
About 24 hours in custody
Judge decides whether or not to set bail
NOT a trial (no witnesses, no evidence taken)
Extremely limited purpose
Total time in front of judge will be about 5 minutes, tops.
Indictment
Think of an indictment as a written permission slip from the Grand Jury for the Prosecutor to take someone to trial.
WHOA! That's not a typo. This is a big difference from
beyond a reasonable doubt
, which is the standard of proof at a jury trial.
Grand Jury Reality Check #2
The Grand Jury is a
SECRET
proceeding.
That means that neither the accused nor his lawyer is allowed to be present for the testimony of witnesses or even to know who the witnesses are.
That means that as an accused, you have no idea how strong (or how weak) the Government's case is against you, and that if you testify, you could well supply the Government with more and even better information than they actually have.
Grand Jury Conclusion
Most people accused of crimes do not choose to testify in front of the Grand Jury.
The judge will usually set up a
motion schedule
to give the defense lawyer a chance to prepare written pretrial motions.
"Motion schedules" are usually long, giving the defense up to 45 days to file motions, and then time for the Prosecutors to respond and then time for the judge to make a decision.
Pretrial Hearings
Three Basic Flavors (issues)
PHYSICAL EVIDENCE
Hearing is meant to decide whether the police acted properly in the way in which they came into possession of physical evidence that the Government wants to use at trial. (Example: Police find an illegal gun in someone's car. The GUN would be the subject of the hearing.)
Why did the police officer open the glove compartment of the car?
Why did the police officer frisk the person?
Why did the police officer pull over the vehicle in the first place?
Common Issues...
Why did the police enter the defendant's bedroom?
Statements
This hearing is meant to decide whether statements made by the accused were obtained according to the law. Example: The accused claims that he was illegally coerced into making a statement.
Common Issues
Did the police officer who took the confession read the accused his rights?
Was the accused "in custody" when he made the statement?
Was the accused being interrogated when he made the statement or were the statements "spontaneous"?
Identifications
ARREST TO TRIAL ON A FELONY IN NEW YORK
ACCUSED CAN TESTIFY TO GRAND JURY
Finally! You have your chance. You can finally set things straight and tell everyone what you have been dying to tell them. It'll be GREAT, right?

Um...well, maybe not. You see, there is a catch...
TRIAL!
When Do I Get Discovery?
This is America, right? Land where the defendants have all the rights, remember? Charged with a crime, you have to get all the police reports right away and be informed about all the witnesses against you right away, right?
Negotiations
As the case makes its way toward trial, negotiations may take place at any time. Your case will proceed toward trial along this path until you reach the trial or work the case out with a negotiated settlement, or plea. Of course you may decide not to negotiate if you want your day in court.
WRONG!

WRONG! If you want discovery, sue your neighbor for denting your garbage cans, because the only meaningful discovery that happens in New York happens in civil cases where money is at stake.
$$$$$$$
FREEDOM is at stake? Who Cares? Show me the
$$
DISCOVERY BY TRIAL
People accused of crimes in New York generally are left with the discovery method known in the business as "discovery by trial".

When you go to trial in a criminal case in New York, your lawyer may very well:
be given most of the critical police reports just as jury selection begins
have never been able to speak to some or even all the witnesses against you, so that the first time he speaks to these witnesses is just a few seconds after they finish testifying for the Government
Civil lawyers fighting important battles over $$$ would faint at the very idea of conducting trials under such circumstances. Go figure.
Welcome to America!
Investigations
As the case progresses, you may need to hire a private investigator to help with the case. The Government has an entire army of investigators (police officers and detectives) working for them. It is usually a good idea to have one of your own.
Why Does it Take So Long?
I know. You want to shout your defense from the rooftops and you want this nightmare to be over yesterday. You want your lawyer to explain to the judge why your case should be dismissed right away. The problem is that the only place to really argue about facts is at a TRIAL, and trial is the LAST thing that happens, after a whole bunch of other stuff that is also happening to thousands of other cases just like yours.
Arrest is this way
Trial is this way
Property
Statements
Identification
Common Issues
What did the fillers in the lineup look like?
What did the police officer say when he showed the witness the mug shots?
Government has about six months to get an indictment, so cases can linger in this Grand Jury stage for months.
Grand Jury Good News and Bad News
Good News:
The Grand Jury has the power to dismiss cases.
Bad News:
The Grand Jury almost never dismisses cases.
The math looks like this:

(Very low burden of proof) + (inability to know anything about Government's case) = LOW CHANCE OF SUCCESS.
"Motions" usually means requests for pretrial hearings...
It's all about PRIVACY!
Think Due Process
This is where the famous "Miranda Rights" come into play.
This hearing is meant to decide whether or not some identification procedure (like a LINEUP or a SHOWUP) was conducted legally. Example: The defendant claims he was put in a lineup with five people who were all a foot taller and 100 pounds heavier than him.
What was the initial description given by the victim?
Think Fairness
Pretrial Hearings - What's at Stake?
If the defense wins a pretrial hearing, the subject of the hearing is usually deemed inadmissible at trial.

For example, if a gun were found illegally, the Government wouldn't be allowed to use the gun at trial. If a statement were obtained illegally, the Government wouldn't be allowed to use the statement at trial, with some exceptions.
Contrary to what is popularly believed, it is extremely, extremely rare that the defense wins these hearings.
There's always a catch.
Another catch.
READY FOR TRIAL
The Great Miranda HOAX
Popular Idea: The police must read Miranda warnings or "the case gets dismissed".
The truth: No case has EVER been dismissed because a police officer didn't read Miranda warnings. Ever. Ever. Ever.
Fun Fact about Miranda: When the United States Supreme Court decided the case, it was NOT dismissed. They sent the case back to Arizona so that Mr. Miranda could be tried again (only without his statement). Arizona DID try him again, he was convicted again, and Mr. Miranda went to prison for a long time.
More Fun with Miranda
If a court DOES find that Miranda warnings were not read, and the statement is disallowed at trial, that only applies to the GOVT's case. If the defendant testifies, and says something different than what was in his "unMirandized" statement, the GOVT gets to bring up the statement. This will be enough usually to make sure that the defendant won't testify.


Q (from prosecutor to Detective): Did you read the defendant his Miranda warnings?

A: Yes
GAME, SET, and MATCH!
How Hard is it for the Government to Satisfy Miranda?
But Wait, there's more...
BAIL
If the judge sets bail, someone will need to give the Government the amount of that bail to hold until the case is over. The good news is that if the accused makes all appearances, whoever posted the bail will get his money back. The bad news is that if the accused fails to return to court, the person who posted the bail loses all his money.
Sometimes, a "bail bond" amount is set. A bail bond is bail money that is put up by a special kind of insurance company called a bail bond agency. The good news is that a bail bond agency will post bond for you for less than full amount of the bond. The bad news is that the bail bond agency is a business and they will charge you a fee for their service.
Bail is more likely to be set if:
You are charged with a more serious type of offense
You have a criminal history
You have failed to return to court on previous cases
You don't have substantial "ties to the community"
Bail is NOT as likely to be set if:
You are charged with less serious offense (like a misdemeanor)
You have no criminal history
You have made all appearances on previous criminal cases
You are employed
You live in the community (not visiting from Arizona)
BAIL BOND
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