Criminal Defense Attorney Chicago: The Malavia Law Firm

Felony Procedure Summary


Malavia Law Firm Criminal Defense Attorneys

Introduction


This pamphlet should not be used in place of the advice and information you receive from your attorney. Your attorney can also explain the process in greater detail.

Bond Court


At a bond hearing, the only issue decided is the amount of money that you have to post in order to be released from jail while your criminal charges are pending. Innocence or guilt is not addressed at this stage. You cannot present your defense at a bond hearing, and you should not speak carelessly at this proceeding as you may say something that can hurt the outcome of your case.

Your lawyer will interview you in the lockup. During this interview, the lawyer will get a brief personal history to present to the judge during the bond hearing. Information helpful for this purpose includes age, home address, family ties, educational background, employment history, military service, and special medical needs.

During the bond hearing, the prosecutor will inform the judge of the charges and your criminal background. Your lawyer will provide the judge with your brief personal history. Based on this, the judge will set a bond.

If the judge sets an “I bond,” you will be released without having to post any money. If the judge sets a “D bond,” you, or someone on your behalf, must post 10% of the bond amount before you will be released. In some instances, you may be held with “no bond,” in which case no amount of money can secure your release.

A requirement of your bond is that you attend all court dates on your case. The judge can issue a warrant for your arrest if you do not appear on every court date.

You must also abide by any other conditions of bond which the judge imposes. Common conditions include a curfew and orders to stay away from certain persons and/or certain locations. If you violate any of your conditions, your bond may be increased or revoked altogether.

Probable Cause Determinations


Since you are charged with a felony, your case must be reviewed to determine whether there is probable cause to believe that you have committed a crime. This determination may be made by the judge hearing testimony at a preliminary hearing or by the Grand Jury during the indictment process. Once again, actual guilt or innocence is not determined at this stage.

At a preliminary hearing, the State presents evidence before a judge. You and your lawyer are allowed to be present and your lawyer can ask limited questions of the prosecution witnesses. Generally, defendants do not testify at a preliminary hearing. If the judge finds probable cause to hold your case over for trial, your case is transferred for assignment to a felony courtroom. If the judge makes a finding of no probable cause, your case usually ends at that point. Although the State may still seek an indictment after a finding of no probable cause, in most cases this ruling by the judge results in the charges being dismissed.

The indictment process is a secret proceeding in which the State presents evidence about your case before the Grand Jury. If the Grand Jury hands down an indictment, your case is transferred for assignment to a felony courtroom.

The State alone decides whether to proceed by way of preliminary hearing or through the Grand Jury. Our Office cannot influence this choice or prevent the State from proceeding by indictment.

Transcripts of the preliminary hearing and of the Grand Jury process are available to your lawyer. Although they are not provided directly to you, your lawyer may review them with you as part of the preparation for trial.

Trial Preparation


Much of the preparation for trial takes place through a process called “discovery,” which is the exchange of information between the prosecution and the defense before trial. In general, the prosecution has a duty to turn over to the defense, upon request, the details of any offenses charged, the names of witnesses who may testify at trial, other evidence that may support the charges, and any information that may tend to disprove the charges. Similarly, the defense must turn over to the prosecution, upon request, the names of defense witnesses who may testify at trial and the nature of the defense.

The discovery process is controlled by the Illinois Supreme Court Rules. Those rules require that materials obtained through this process remain in the exclusive possession of the attorney. Although photocopies are not provided for you, your lawyer may review these materials with you in preparation for trial.

In preparing for trial, you may provide witness information and collect certain records available to you. Your attorney may interview and subpoena witnesses and may subpoena other records as necessary.

Gathering and organizing the important pieces of information and evidence takes time. This is time spent on your behalf in order to present the strongest defense of your case.

Plea Bargaining


The decision on how to plead, guilty or not guilty, is up to you. If you do not wish to contest the charges against you and wish to plead guilty, inform your attorney of your decision as soon as possible.

Your attorney will talk with the prosecutor about ways to resolve your case and will try to obtain the sentence most favorable to you. Your attorney will then communicate to you any sentence offered by the State. You do not have to accept any sentence offered to you. It should also be noted that any sentence offered to you by the prosecutor is subject to approval by the judge.

From time to time, your attorney may tell you about sentences being offered to you even though you may not have requested these offers. This does not mean that your attorney thinks you are guilty or that you are being encouraged to plead guilty. You have the right to be told about all options available to you, and your attorney has the duty to explain these options to you. Once again, you do not have to accept any sentence offered to you.

Your attorney may ask the judge to directly participate in the plea bargaining process. In a meeting called a “402 Conference,” your attorney, the prosecutor, and the judge will discuss your case. During this conference, the judge will hear many details of the charges against you and will learn about your background. Again, your attorney will try to obtain the best sentence possible. The judge will then tell the attorneys what sentence you would receive if you were to plead guilty. Your attorney will communicate the proposed sentence to you. You may accept it or reject it as you see fit.

If no sentencing agreement can be reached, the plea bargaining process usually ends and your case will proceed to trial.

Trial


Once fully prepared, you are ready for trial. It is at this stage that your innocence or guilt is determined.

There are two types of trial. One type is a bench trial, where the judge alone hears the evidence and decides your innocence or guilt. The second type is a jury trial, where 12 members of the community listen to the evidence. In a jury trial, all 12 jurors must agree that the evidence proves your guilt before you can be found guilty.

You will decide on the type of trial that you want and whether you will testify. Your attorney will advise you, but both decisions are up to you.

After the evidence is presented, each side argues its position as to your involvement in the crime. To be found guilty, the evidence must prove your guilt beyond a reasonable doubt. If it does not, you will be found not guilty and the case is over. If you are found guilty, you will then proceed to the sentencing stage at which time your punishment will be determined.

Sentencing


In felony court, your sentence can range from probation to imprisonment in the penitentiary or even death, depending on the type of crime, your criminal record, and other aggravating factors.

You are entitled to have a pre-sentence report (PSI) prepared and submitted to the judge. The purpose of this report is to give the judge a broader picture of who you are. This report will contain information about your family life, your education, your employment history, any military service, your ties to the community and any special problems you may have or have had such as medical conditions, drug use, or alcoholism.

Besides the PSI, your attorney may present evidence in mitigation, that is, information that shows good things about you. Examples of mitigation include volunteer work in your church or community, pursuing your education, learning a trade, or voluntarily seeking help for drug or alcohol abuse. These are all positive things about you that the judge can take into account in deciding what sentence you should receive.

Appeal


Under Illinois law, you have the right to appeal a conviction. In this process another court, the Appellate Court, reviews your case to see if your judge made any mistakes in applying court rules, in allowing or denying certain types of evidence, in following the precedent set by other cases similar to yours, and in judging the evidence as a whole.

If any such mistakes are found, depending on the type of error and how seriously it affected your case, the Appellate Court may: reverse your conviction outright, or return your case to the trial court for a new trial, or return your case to the trial court so the judge there can correct the error.

If no important mistakes are found, the Appellate Court will uphold your conviction.

Issues raised on appeal are often technical and complex and should be discussed with your attorney before proceeding.

How You Can Help Yourself


  • Dress appropriately for court. Wear business attire, not sports clothing.
  • Inform your lawyer of any witnesses in your case, including their names, addresses, and phone numbers.
  • Do not talk about your case with other people, even if they say they are trying to help you. This means do not speak to the police, the State’s Attorney, any prison guards, the press or your cell mate. If someone tries to talk to you about your case, find out that person’s name and report this to your lawyer immediately.
  • It is important that you be on time for court. Judges sometimes take defendants into custody for being late.
  • There are very few good reasons for missing court and the judge can issue a warrant for your arrest if you are not present. If you do miss court, contact your attorney as soon as possible