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The Process of Criminal Prosecution (Part 3: Post-Arraignment Procedure)

Posted by Alex K. Kriksciun | Jun 14, 2017 | 0 Comments

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Up next: what happens in a criminal case post-arraignment.

After entering a not guilty plea, the next court date that a defendant might expect is a “discovery hearing.”  The purpose of a discovery hearing is almost always for the state to turn over “discovery” to the defense.  Broadly speaking, “discovery” is the evidence that the state intends to use to try and convict the defendant at trial.  Louisiana criminal discovery rules are contained in LSA-C.Cr.P. arts. 716-729.7.  I could wax eloquent on the scope of discovery for quite a while, but it is largely beyond the scope of this blog post.  It bears mentioning that there are certain pieces of evidence that the state is required to give to the defense if the defense requests them.  These include statements by co-defendants, documents and tangible objects, and confessions.  There are also certain pieces of evidence that the defense must turn over to the state if requested, but the scope of required disclosures by the defense is more limited than that of the state. 

There are other criminal discovery rules that have been formulated by the United States Supreme Court; for example, under the Court's decisions inBrady v. Maryland and Giglio v. United States, the prosecution must turn over to the defendant all exculpatory and impeachment evidence in the government's possession.  Also, different parishes turn over discovery in different ways.  In Jefferson, the district attorney's office offers “open file discovery” at arraignment in most cases.  Open file discovery essentially consists of the DA's entire file except for attorney work product (such as notes and memos on potential trial strategy).  Orleans Parish has a long and very distinguished history of discovery abuses and hiding evidence dating back to the days of Harry Connick, Sr., who served from 1973 to 2003.  The district attorney's office in Orleans still has a policy in place of providing as little discovery as possible to the defense (and then, only in dribs and drabs, which often necessitates multiple discovery hearings and drags out the process).  I believe that the local and national trends are to act in an opposite manner to Orleans Parish.

Discovery hearings are usually brief and nonthreatening for the client.  In many if not most cases, the prosecutor will provide the defense lawyer with the discovery that they are giving to the defense prior to calling the defendant's case.  After calling the defendant's case, the prosecutor announces that he or she has turned certain information over to the defense, and most lawyers (including myself) acknowledge receipt of the discovery.  Then, the parties agree on a new court date (as in Orleans) or are forced upon one by a judge (as is usually the case in Jefferson), the defendant picks up a subpoena for his or her next court date, and the hearing is concluded.  This is not how all discovery hearings operate, however.  Sometimes, the state has no discovery to turn over.  Sometimes, the state wants to put what it is turning over to the defense on the record before actually handing it over.  Sometimes, the defendant fails to appear and a warrant is issued for his or her arrest.  These kinds of situations are why you want to hire a good criminal lawyer in the first place; the experienced lawyer will know how to handle these types of situations and other contingencies that may arise.

The next court date for the defendant is usually a “pretrial hearing.”  Some judges prefer to conduct motion hearings prior to pretrial hearings, but I have found that a majority prefer to either conduct a pretrial hearing first or to conduct a second pretrial hearing after a motion hearing.  I believe that the reason for this is that judges feel that if they can resolve a case at a pretrial hearing or shortly thereafter, they do not have to go through motions, which involve real, actual work that they must do.  Similarly, I believe (but have no proof) that district attorney's offices would rather see if they could resolve cases prior to motions because, again, preparing for motions requires actual legal work.  To be fair, motion hearings are also hard work for defense counsel.  Sometimes it is in the client's best interest to conduct a motion hearing, sometimes it is not.

Pretrial hearings are typically a (usually private) discussion between the judge, the prosecutor, and the defense lawyer to determine if the case can be resolved in a manner that is agreeable to all parties.  Make no mistake, when I say “resolved,” I generally mean resolved by a guilty plea.  That is not true in all cases.  I have had pretrial hearings where the state agreed to dismiss charges outright, where the state offered diversion (essentially where the state dismisses the charge(s) in exchange for the defendant performing some action), and where the state told me that they would not offer anything and would see me at trial.  Often, in Orleans the state will either ask the defense what they are looking for or offer the defendant some sort of a plea agreement.  In Jefferson, it is more common to have a judge suggest what he or she considers to be an appropriate sentence. 

These types of arrangements can sometimes be negotiated beforehand.  It is also very common for defense lawyers to meet with the DA's office to try and argue for a lighter potential sentence in exchange for a guilty plea.  If you do not get the answer you want from the trial assistant district attorney, you head to the chief of trials.  If that doesn't work, you go to the first assistant district attorney.   If that doesn't work, you go to the district attorney.  If that doesn't work, well…….then it might either be a case for trial or a case that gets resolved with the original sentence.  If this occurs, I (and other good criminal lawyers) will keep plugging away if it is in the client's best interest to enter a guilty plea.

As above, there are countless variations on the issue of how the state and the defense arrive at a plea agreement.  Sometimes the potential sentence can be lessened through cooperation.  Sometimes part of the defense's strategy is to “wait out” the state, particularly if the state either does not have or is having trouble locating witnesses.  Sometimes the deal offered changes over time, sometimes it doesn't.  Every case is different and every case has its own peculiarities.  Yet another reason to hire an experienced defense lawyer.

If you need a lawyer post-arraignment or are expected to hire one at this stage of your criminal proceedings, make sure you call the Law Office of Alex Kriksciun today!

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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