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The Process of Criminal Prosecution (Part 1 - Arraignment and Pretrial Motions)

Posted by Alex K. Kriksciun | May 31, 2017 | 0 Comments

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Hope the picture grabbed your attention.  Onto the task at hand.

I have been working on this for several weeks now. Last week we covered how criminal prosecutions are initiated. What I have written here seems like the next logical step to me. These posts will track and inform the reader what happens in criminal prosecutions after they have been instituted.   Some of the matter discussed is black-letter procedural law.  I've also tried to spice it up a little with some of my own observations, suggestions, and real-world examples.  

This will be the first in a series of anywhere from 4 to 6 posts (I haven't decided just yet).  The entire piece came in at just under 7,000 words, enough for a fairly lengthy short story. Obviously it needs to be broken up.  

Some of the conversation may seem a bit general or nonspecific. There is a reason for this; Louisiana Code of Criminal Procedure (“LSA-C.Cr.P.”) art. 61 provides that “the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” There are forty-one judicial districts in Louisiana, and thus forty-one district attorneys. They vary widely in whom, when, and how they prosecute, as envisioned by the codal article. I will also show how different DA's offices operate differently by reference to Orleans and Jefferson Parishes. I have represented clients in essentially every parish inside a 50-mile circle centered on New Orleans. The list includes St. Mary, Assumption, Livingston, Tangipahoa, Terrebonne, Lafourche, St. James, St. John the Baptist, St. Tammany, Washington, St. Bernard, Plaquemines, St. Charles, and of course, Jefferson and Orleans. I will refer to Jefferson and Orleans only because the majority of my cases have been in those two parishes.  With all that said, let's get started.

The first step in any criminal prosecution is known as an arraignment. LSA-C.Cr.P. art. 551(A) states that “the arraignment consists of the reading of the indictment to the defendant by the clerk in open court, and the court calling upon the defendant to plead.” In most cases lawyers can waive the reading of the bill of information or indictment, and most (including myself) always do when presented with the opportunity. As per LSA-C.Cr.P. art. 552, there are four possible pleas that can be entered at arraignment; guilty, not guilty, not guilty and not guilty by reason by reason of insanity (called an “NGRI plea” in the business), and nolo contendere (which is basically a guilty plea).

In practice, it is rare to enter anything but a not guilty plea at arraignment. I have never entered an NGRI plea or nolo plea for a client at arraignment. I have changed a not guilty plea to an NGRI plea on several occasions, but I do not personally feel it is appropriate to enter an NGRI plea at arraignment because under most circumstances, I have not been able to spend enough time with the client to really tell if an NGRI plea is warranted.

Only on rare occasions have I entered a guilty plea for a client at arraignment. Usually, this is done after extensive pre-arraignment negotiations with the DA's office. I'll give you an example: Plaquemines Parish case where the client was charged with filing false public records, a felony punishable by 0-5 years at hard labor. The client was a student at LSU, so it was important to avoid a felony conviction. She also wanted to get it taken care of as quickly as possible. I got in touch with two of the ADAs in Plaquemines (which constitutes half of the ADAs in the entire parish) and explained the situation. They were understanding and gracious, as they always are in Plaquemines, and after meeting with the actual district attorney, the office agreed to reduce the charge to criminal mischief, a misdemeanor which the client agreed to plead guilty to. This was all done prior to arraignment. The state filed a bill of information charging the client with filing false records, and I entered a not guilty plea. The state then amended the bill to the misdemeanor criminal mischief charge, which necessitated a re-arraignment. We then entered a guilty plea to the amended charge, waived sentencing delays, and the client was sentenced to the terms that had previously been agreed to (1 month parish prison, deferred in favor of one day of inactive probation).

The situation in the previous paragraph is a rare situation indeed. As I stated, almost all pleas at arraignment are not guilty pleas. LSA-C.Cr.P. art. 521 provides that counsel for the defense has 15 days after arraignment to file pre-trial motions. Broadly speaking, a motion is a request to the judge presiding over the case to make a decision about some aspect of the case. In a motion, a lawyer can request virtually anything.

Different lawyers file different pre-trial motions. The most commonly filed motions are motions to suppress and a motion for a preliminary hearing. Motions to suppress are requests that the trial judge exclude certain pieces of evidence from trial. They come in many different flavors, but the three most common are a motion to suppress evidence, a motion to suppress statements, and a motion to suppress identification.

Next week I will explain each of the pretrial motions listed above in fine detail.

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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