Court ProceduresThe Initial Appearance
The defendant will have an initial appearance on the first day the courts
are in session after his arrest. Some defendants, instead of being arrested,
are issued a summons to appear in court on a specific date. During this
initial appearance, the defendant is formally charged with a crime or crimes.
You are not required to attend this hearing.
If the defendant has a lawyer, this person (referred to as the defense attorney) will be in court to represent the defendant. If the defendant cannot afford to hire an attorney, the court (judge) will appoint one for him.
Bail will be set on the charge(s). The bail is the amount of money or property the defendant will have to turn over to the court in order to ensure that he will appear at all required court proceedings. In Dane County, almost all defendants will be released on bail. The DA may request certain bail conditions, such as that the defendant have no further contact with you.
The Defense Attorney
The defendant will be represented by an attorney.
There may be occasions when you and your family will be contacted by a representative of the defendant -- either his attorneys or an investigator. You are not required to talk with any person representing the defendant; anything you say to these people can be used against you in court. If you aren't sure what to do, call the District Attorney Victim/Witness Specialist, or the Rape Crisis Center Legal Advocate.
The Preliminary Hearing
In a felony case, the preliminary hearing is held within ten days of the
defendant's initial appearance if the defendant is in custody, or usually
within 45 days if the defendant is released on bail. The purpose of the
preliminary hearing is to establish "probable cause" to believe
that a felony was committed and the defendant probably committed it. The
defendant will be present; spectators may also be present.
You will be asked to testify about the assault at the preliminary hearing. Before testifying, you should meet with the DA to discuss your case, including what questions you may be asked, although the DA cannot tell you how to answer.
At the hearing, you will be questioned by both the DA and the defense attorney. Take your time answering, and don't worry if you can't remember every detail. It's better to say you don't know or don't remember than to try to guess at an answer.
If the judge decides that "probable cause" has been established by the end of the hearing, the defendant will be "bound over" for further proceedings in Circuit Court. If the judge decides that "probable cause" has not been established, the judge will dismiss the charge(s).
In some cases, the defendant chooses to waive his right to a preliminary hearing. If this happens, no testimony is heard and the case is automatically "bound over" for further proceedings.
The Arraignment
The arraignment is a hearing at which the defendant enters a "plea"
on the charge(s). He can plead "not guilty", "guilty",
or "not guilty by reason of mental disease or defect". No testimony
is taken at an arraignment and victims are not required to be present.
Note: In a misdemeanor case, the initial appearance and the arraignment
are combined into one hearing, which the victim is not required to attend.
Misdemeanors do not have preliminary hearings.
Pre-Trial Conferences
Pre-trial conferences are formally scheduled meetings between the defendant,
defense attorney, and DA to discuss the resolution of a case. Possible resolutions
are: the defendant deciding to plead guilty to the charge(s); the defendant
continuing to plead not guilty -- ultimately resulting in the case going
to trail.
At any point after the preliminary hearing, the defense attorney and the DA may work out a plea bargain.
If the DA is considering a plea bargain, s/he should tell you about it, and you should let the DA know how you feel about it. Plea bargaining can be to your advantage, particularly if your case will be very difficult to prove, or if you really don't want to testify in court. Plea negotiations include discussions of the willingness of the defendant to plead guilty, the charge(s) the defendant will plead guilty to, and recommendation for sentencing.
Pre-Trial Motions
Both the DA and the defense attorney can bring legal motions either to allow
certain evidence to be introduced or to keep specific evidence from being
presented at the trial. This evidence may include such things as statements
made by the defendants, articles found during a search of the suspect, his
vehicle or residence, additional charges or prior convictions of the defendants,
etc.
Pre-trial motions are presented to the judge during separate hearings. You may choose to attend any motions hearing in your case; in some cases, you may be needed to testify at a motions hearing -- if so, the DA will notify you in advance.
The Trial
Both the defense attorney and the DA can ask to have the trial date postponed
in order to prepare further motions or because a set date is inconvenient.
Trial dates may be set and then postponed more than once, and without prior
notice, and this may be very frustrating to you. In Dane County, most cases
are resolved within a year, although some cases may take as long as two
years. Cases in which the defendant pleads guilty are usually resolved more
quickly than cases which go to trial.
It is helpful for you to meet with the DA again before the trial, so that you understand what will happen and what is expected of you at the trial. During the trial, you and all other witnesses will be required to testify in open court. Both the DA and the defense attorney will ask you questions, and you will be expected to give a complete, detailed account of the assault. The defense attorney's questions are generally designed to attack the credibility of a victim or witness and may be difficult for you to undergo. Either attorney may object to questions s/he considers legally improper. The judge will rule on any objection and determine whether the witness should answer.
The results of your medical examination, laboratory analysis, and the testimony of other witnesses may also be presented at the trial. The DA has the burden of proving the charge(s) against the defendant "beyond a reasonable doubt". The defendant is not required to present any defense and is not required to testify.
At the end of the trial, the judge or a 12-person jury (if it was a jury trial) pronounces the verdict. In a criminal case, the jury verdict must be unanimous. If the defendant is found guilty, the judge may sentence the defendant immediately or may order a pre-sentence investigation before sentencing the defendant at a later date.
The Pre-Sentence Investigation
A pre-sentence investigation is an investigation of the defendant's background,
previous convictions, and psychological history, conducted by a probation
and parole agent from the Division of the Department of Correction who prepares
and submits a written report to the judge. The pre-sentence report must
include a section entitled "Victim Impact". You will be given
an opportunity to discuss with the agent the physical, psychological, and
economic effects on your life, and your feelings and opinions regarding
sentencing. The agent will include this information in her/his report to
the court so that the judge may consider it when deciding on an appropriate
sentence.
The Sentencing
The trial judge is responsible for sentencing the defendant. You may attend
this hearing if you wish. The judge has a number of alternatives concerning
sentencing, including a term of incarceration in prison or jail, or a term
of probation under the supervision of a Probation and Parole Agent. The
judge may set conditions of probation which may include psychiatric treatment,
drug and alcohol treatment, no contact with children, etc.
If sentenced to prison, the defendant can be considered for parole after
serving one-fourth of his sentence. With good behavior, the defendant is
automatically released after serving no more than two-thirds of his sentence.
A defendant is under parole supervision for any unserved portion of his
sentence.
The Appeal
Once the case is completed, a convicted person has the right to appeal his
conviction or sentence. The State, as represented by the District Attorney
does not have the right to appeal a finding of not guilty, or appeal the
sentence.
