Criminal Court Process
The attorneys at Fahrenholtz & Wiens, LLC handle a large number of criminal cases throughout the state of Colorado as well as providing representation in numerous other states. While different courts call their hearings different names, the following is an overview of commonly used names of criminal court proceedings with a brief description of what each means. Click Here for the Civil Court Process.
When a person is pulled over for speeding and cited for going too fast, they are issued a summons. A “summons” is the same as a ticket, which lists the citation(s) and lists a court date for the person to appear in court. A person issued a summons is generally not on bond.
Arrest and Bond
While a person who has been issued a summons has been subjected to a non-custodial arrest, most people equate an arrest with a custodial arrest, where they are placed in handcuffs and taken to jail. Most people arrested and taken to jail are then released on some type of bond, such as a cash or surety bond or a personal recognizance bond. A cash or surety bond is a monetary bond where a defendant can be released by posting the entire amount up front (cash bond), or by hiring a bondsman to post the bond for them, generally for a non-refundable fee. A personal recognizance bond requires the defendant to sign paperwork to come back to court, without posting any money.
After a person has been summonsed or arrested, they have to be in court on a certain day, where they are advised of their charges in the case. This advisement includes the potential penalties if they are convicted of such charges.
Those charged with a Class 1, 2, or 3 felony, those facing a mandatory sentence, and those charged with a felony who are in custody (jail) are entitled to a Preliminary Hearing. A Preliminary Hearing is a “show cause” hearing, where the prosection must convince the court that there is probable cause that the person charged committed the charges filed in the case. This is not a trial, and the burden on the prosecution is much lower. If you waive your right to a Preliminary Hearing for an offer in the case, the offer cannot be withdrawn by the prosecution unless there is a significant change in the case, such as a violation of bond conditions.
This is a hearing where a defendant has the opportunity to enter into a “disposition.” A disposition is a resolution of a case, such as a plea agreement. However, not every defendant attending a Disposition Hearing is ready to enter into a disposition, and therefore many Disposition Hearings are continued, or set for a Motions Hearing or a Trial.
An Arraignment is a term used for a hearing where a defendant is further advised of their charges and potential penalties and given the opportunity to plead guilty/not guilty. Arraignments are usually the first hearings in District Court, which is where felony and juvenile cases are heard.
Pre-Trial Hearing or Pre-Trial Conference
These terms refer to court appearances prior to a trial that are not otherwise Disposition Hearings, Preliminary Hearings, Arraignments or Motions Hearings.
These are hearings where a defendant’s motions are heard and ruled upon by a judge. Most cases that are set for trial will be subject to a Motions Hearing first. Two Motions Hearing examples are:
- Where a defendant files a motion asking a Court or Judge to rule that evidence found in their home cannot be used because the police officers that entered their home did not have a warrant.
- Where a defendant files a motion to prevent statements they made to be used against them because such statements where obtained by police without advising the defendant of their right to remain silent.
Defendants generally have the right to a trial by Judge or Jury, depending on the charge. Some charges only carry the right to a trial by a judge. Those charged with misdemeanors have a right to a trial by jury of six and those charged with felonies have the right to a trial by jury of twelve (in Colorado). A trial gives a defendant the right to have a judge or jury decide their innocence or guilt.
A defendant who pleads guilty or is convicted at trial gets sentenced by a Judge. A Sentencing Hearing is where a defendant and their attorney have an opportunity to present evidence, facts and mitigation to a Judge before being sentenced. The prosecution also gets the same opportunity.