TIMELINE - CRIMINAL LAW IN GEORGIA

STATE OR FEDERAL?

• All criminal cases in Georgia are prosecuted either in federal court or state court.
• People who are charged with violating a federal law (for example, drug offenses, money laundering, firearm offenses, tax evasion, mail fraud, wire fraud, bank robbery, computer crimes, child pornography) are prosecuted in federal court.
• People who are charged with violating Georgia state law (for example, drug offenses, firearm offenses, theft, murder, arson, rape, child molestation) are prosecuted in state courts. State courts include the Superior Court of the County, the State Court of the County and in less serious cases, the traffic court, or city court.

BEFORE INDICTMENT

• Cases begin either with the police (FBI, DEA, or some other law enforcement agency) making an arrest, or with the prosecutor obtaining an indictment from the grand jury.
• Defendants in both state cases and federal cases will be given a bond hearing. Bond is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bond. Is the defendant a danger to the community? What is the likelihood the defendant will flee? In some cases the defendant may be allowed to post bond, but in others, bond may be denied, or the judge may set bond extremely high, thereby preventing the defendant from making bond.
• Preliminary hearings (sometimes known as committal hearings) are hearings that are held before a magistrate after someone is arrested to determine if there is enough evidence to hold the defendant. These hearings are often conducted at the same time as the bond hearing. If a defendant has been indicted, there is no right to a preliminary hearing, because the grand jury's determination that there is enough evidence to hold the defendant is considered to be an adequate substitute for a judicial decision.
• The time between arrest and indictment is an important time in a criminal case. During this time the defense attorney has the opportunity to persuade prosecutors not to indict the case or to pursue lesser charges or alternative punishments.

AFTER INDICTMENT

• Next the defendant is formally indicted. An indictment is a written statement that formally charges a person with a crime, as drawn up by a prosecutor and found and presented by a grand jury.
• After the defendant has been indicted, he will be arraigned. Arraignment is the procedure during which a defendant is read the charges he or she is facing and formally announces that he or she is Not Guilty.
• The defendant then requests discovery.In discovery, the prosecutor must provide the defendant with information about the defendant's case. The defendant is entitled to receive copies of the arresting officers statements and filed reports and the defendant may review evidence the prosecution might submit at trial.
• The next hearing is usually a pre-trial conference. This involves a meeting between prosecution and defense. Topics discussed include, discovery issues, plea bargain opportunities, strengths and weaknesses of the prosecution's case, pretrial motions and intangible factors of the case, such as the defendant's character and past history.

PRE-TRIAL MOTIONS

• After arraignment, the defense will file motions. There are numerous types of motions. Some motions are simply designed to learn what evidence the prosecutor has. Witness statements, physical evidence, pictures, tape recordings and other evidence that the prosecutor intends to introduce at trial will be produced to the defense prior to trial. Other motions are designed to prevent the prosecutor from introducing certain evidence. For example, evidence obtained through an illegal search, or a confession obtained without Miranda warnings, may be suppressed.
• There are dozens of motions that can be filed in any criminal case, but there are some cases where no motions are appropriate. Each case must be analyzed individually to determine whether motions should be filed.
• In some cases, the court will conduct a hearing on the motions. In certain cases, there will need to be an evidentiary hearing, other times the motion can be argued by the lawyer without evidence.
• After all the motions are heard, the case will be set down for trial.

PLEA NEGOTIATIONS

• Whether a person accused of a crime wants to engage in plea negotiations and whether the person will accept a plea agreement must be analyzed on a case-by-case basis.
• If a plea agreement is reached, the defendant will be required to enter a guilty plea, acknowledging his guilt of some offense (often an offense less serious than the offense charged in the indictment). In state court, the prosecutor and the defendant can agree on an appropriate sentence and the judge will tell the defendant before he accepts the guilty plea whether he will impose that sentence. In federal court, the prosecutor and defendant may discuss an appropriate sentence, but there is almost never a binding agreement and the judge is not required to tell the defendant what his sentence will be prior to accepting the guilty plea. In state court, sentence is normally imposed immediately after the plea is entered. In federal court, the sentence is imposed approximately two months after the guilty plea is entered.
• If the defendant decides that he does not want to enter a guilty plea, then the case will be tried.

TRIAL

• A jury trial is the fact-finding phase of the case. At the trial a decision will be reached as to the innocence or guilt of the defendant. The burden of proving guilt rests at all times on the prosecution.
• Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win.
• At trial, the prosecutor and defense first participate in selecting a jury. Though the procedure is somewhat different in federal and state court, essentially, there will be a panel of potential jurors and both the prosecutor and the defense are permitted to remove some of those potential jurors and the remaining twelve jurors - the jurors that neither side struck - will be the actual jurors in the case.
• Both the defense and the prosecutor are permitted to make opening statements.
• Then the prosecutor calls its witnesses, each of whom may be cross-examined by the defense.
• After the prosecutor finishes calling its witnesses, the defendant calls his witnesses.
• At the conclusion of the presentation of evidence, both parties make closing argument.
• The judge then explains the law to the jury (this is known as "charging the jury").
• The jury then deliberates. All verdicts must be unanimous - either guilty or innocent.

VERDICT

• If the defendant is found not guilty, the case is over and the prosecutor is not permitted to appeal.
• If the defendant is found guilty, then a sentencing hearing occurs where t he judge determines the length and type of punishment.
• Many factors influence a judges decision. The most important factors are the facts of the case at hand. However, other factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence. On the other hand, a previous criminal record, use of a dangerous weapon, and the type of conviction may persuade the judge to provide a harsher sentence.
• The eighth amendment to the U.S. Constitution provides that punishment may not be cruel or unusual.
• Sentencing in federal court is governed by the federal sentencing guidelines. These are an intricate set of rules that dictate what the actual sentence should be. In drug cases, for example, the guidelines require that the court consider the type of drug involved, the quantity of drugs, the use of weapons, the defendant's "role in the offense" (i.e., a leader of an organization, or a low-level participant). In fraud cases, the amount of money that the victim lost is a controlling consideration, but the defendant's role in the offense is also an important factor.
• In state court, the defendant may be sentenced immediately. In federal court, there is a delay of at least sixty days.

APPEAL

• If a person is found guilty, the conviction can be appealed.
• In both federal and state court, the first appeal is back to the trial judge. This is known as a "new trial motion." If that is denied, then the case is appealed to an appellate court.
• In state cases, the conviction is appealed to either the state Court of Appeals or the state Supreme Court. In federal court, the appeal is to the Eleventh Circuit Court of Appeals.
• An appeal is not a re-trial. Once the trial has been completed, the facts have been decided. They can't be changed by an appellate court. An appeal is an effort to convince the judges in the appellate court that there was something unfair about the trial. Appeals often focus on whether certain evidence was properly admitted; whether the defendant was prohibited from introducing evidence in support of his innocence; and whether the judge properly "charged" the jury. In federal court, an appeal often focuses on the length of the sentence.
• If an appeal is unsuccessful, the defendant may choose to file what is known as a habeas corpus petition. This is another form of appeal that is filed in the county where the defendant is being incarcerated. In federal court, the habeas petition is filed in the court where the defendant was convicted. A habeas petition often brings to the court's attention evidence that was not available during the appeal.