After Arraignment ( see previous article ” Arraignment, Release on own Recognizance, Bail ) the court sets another court date . Prior to or on this court date, the Defense attorney usually decides whether to make any Discovery demands ( demands for documentation and other information such as any statements made by the defendant, lab results, blood alcohol tests etc that are relevant to defending the case. ) and/or whether to make any pretrial Motions such as Motions to Dismiss the case for some defect in the Accusatory Instruments ( See Arraignment article ) or A Dismissal in the Interests of Justice ( usually if the defendant has no prior record , the charge is relatively minor and the defendant is a long upstanding member of the community or some other compelling reason why the case should be dismissed ) and the attorney will also see whether there are any good defenses to the case, in case defendant and Defense Counsel decide to proceed to trial ( either because they have a good defense or if plea bargain negotiations were not successful. The Defense Attorney will also decide whether to make any Motions for pre trial hearings, such as to exclude certain evidence, for a hearing to determine the issue of whether an “Eyewitness ” of the prosecution is mistaken in the identity of the defendant ( called a “Wade Hearing “– hearings are given names of the defendant in previous cases ), or to determine what prior crimes and/or bad acts of the defendant the prosecutor will be allowed to mention in court to convict the defendant and/or to enhance the sentence of the defendant if he is convicted, and many other pre trial hearings too numerous to mention in this article.
Whether the Defense attorney chooses to make any Motions or not , at some point before or at the next court appearance after arraignment, he will usually enter into plea bargain negotiations with the prosecutor. Plea bargains can be to reduce some charges
( if there is more than one ) and dismiss other charges in satisfaction of pleading guilty to other charge (s) , or to obtain a lesser sentence ( such as lesser jail time, or a ” No Jail Promise “ or lesser fine or probation or community service ) or both reduction of charge(s) and sentence. The process of plea bargaining is not an exact science and requires skill and diplomacy on the part of the Defense Attorney and the ability to deal successfully with different types of personalities of different prosecutors and in different types of cases ( especially ones which the prosecutor and the public feel are particularly heinous ( serious such as Murder or repulsive to humanity such as molestation cases). This art of negotiation generally only comes with experience on the part of Defense Counsel. The subject of plea bargaining has been written about extensively and any further discussion of it is beyond the scope of this article.
If Defense Counsel is successful in negotiating a plea bargain with the prosecutor and the Judge accepts it then whether the plea bargain is written ( usually only for felony cases, not misdemeanors ) the Defense Attorney, the Defendant and the Prosecutor will appear in open court before the Judge and place the guilty plea on the record ( a court reporter is taking it down stenographically or there is an electronic recording ). In order for the guilty plea to be accepted by the court the judge will usually ask questions of the defendant on the record to ascertain certain basic things such as whether the defendant had an opportunity to discuss the plea with his attorney and whether he understood all the ramifications of pleading guilty and that he is satisfied with the representation by his attorney and that he is pleading guilty because he is in fact guilty, and is pleading guilty of his own free will and that no threats or promises have been made to him to coerce him into entering the plea ( other than normal promises of the plea such as a no jail promise or a promise of a certain sentence if he pleads guilty ), that he understands that a plea of guilty has the same effect as a conviction after trial, and that he is giving up the right to go to trial ( and in some cases the right to appeal) and to confront and cross examine witnesses against him and to present evidence and witnesses and defenses on his own behalf.
If the judge accepts the plea, sentencing on Felonies ( and certain misdemeanors ) is required to be adjourned to another court date so that the defendant can go to the Probation Department for an interview and then the Probation Department will prepare a written report with a recommendation to the court as to whether there is any reason why the defendant cannot receive the sentence promised as part of the plea bargain. The report is sent to the court and to Defense Counsel and the Prosecutor. On the sentencing date if the report does not contain anything preventing the Judge from giving the promised sentence the judge will give that sentence. If the report does contain something that means the promised sentence cannot be given the Judge will tell the defendant that and what sentence he would impose knowing the information in the report, and ask the defendant if he still wants to plead guilty. If the defendant does not want to plead guilty because he cannot get the sentence promised in the plea bargain, the judge will allow the defendant to withdraw his guilty plea ( as if he never pleaded guilty ) and allow him to start over and go to trial or enter into a different plea bargain.
If the plea was accepted and if there was jail time to be imposed then sentence is usually imposed immediately on sentencing day ( court officer takes defendant into custody right then and there ). Sometimes, however, execution of sentence can be postponed after sentence is pronounced and the court gives a date for the defendant to surrender himself for sentencing. This is usually done in cases where long prison time is to be imposed and defendant desires to get his affairs in order.
Watch for further articles on Criminal and Civil law in the future.