PA Criminal Law Process
Criminal Law Procedure:
Preliminary Arraignment: Preliminary arraignment is the first step in the criminal process after arrest. You will be brought before the Magisterial District Judge (MDJ) in person, or by video. The judge will give you a copy of the criminal complaint filed by police and advise you of your right to secure counsel. The judge will also collect biographical data from you, such as your address, how long you have lived at that address, your occupation and date of birth. The judge will use this information to set your bail. Your initial bail will be set at the preliminary arraignment. Once bail is set the judge will advise you of your preliminary hearing date. You will have an opportunity to argue for lower bail at the preliminary hearing. If you have not already been fingerprinted and booked, the judge will order you to submit to fingerprinting by police.
Preliminary Hearing: The preliminary hearing or "prelim" as lawyers sometimes refer to it is the first adversarial hearing in the criminal process and maybe the most important hearing in your case. Your hearing will be in district court before a district judge. The purpose of the preliminary hearing is to protect citizens from unlawful arrest and detention. At the hearing, the Commonwealth must prove that a crime was committed and you are probably the one who committed that crime. We lawyers call this burden "prima facia” evidence. The Commonwealth must simply prove a prima facia case. The prelim is not your trial or guilty plea. A district judge cannot accept a guilty plea on felony or misdemeanor cases at the prelim. The prosecution need not prove its case beyond a reasonable doubt at this stage. The burden of proof is very low for the prosecution. No defenses are allowed, evidence cannot be suppressed and the judge will have to accept the Commonwealth’s witness’s testimony as true even if they are lying. You will be faced with the choice of waiving your right to a preliminary hearing or having a hearing and forcing the prosecution to present evidence and call witnesses. If a hearing is held and the Commonwealth presents evidence regarding each material element of the charges, the district judge will hold your case for court and assign you an arraignment date. If the prosecution fails to meet its burden, the judge can dismiss some or all of the charges. It is important to have an attorney at the hearing because charges can be dismissed after a having the hearing or charges can be dropped in exchange for a waiver of the hearing.
Arraignment: Arraignment is the presentment of the formal charges against a defendant. An arraignment usually occurs approximately a month after your preliminary hearing. At some point after the prelim, the District Attorney's Office or prosecutor's office will type up an “information sheet” detailing the crimes that the defendant is charged with. The information sheet is also known in other jurisdictions as the "indictment." At the arraignment, the prosecutor will give you this information sheet and will read your charges aloud if a formal arraignment is required. The arraignment judge or arraignment master will enter a plea of not guilty on your behalf. Arraignment can be waived by your attorney so that a court appearance is not required. Your attorney will simply have you fill out a "waiver of arraignment" form.
Pre-Trial Conference: This stage of the proceedings represents your first appearance in the Court of Common Pleas. The Court of Common Pleas is what I like to call "the big courthouse" or the courthouse in your county seat. Each county has local rules and slightly different procedures for disposing of cases. For instance, in Delaware County we call the first appearance the "pre-trial conference." In Chester County the first appearance is called the "call of the list" and the second appearance is your trial date. In most counties, at this stage of the proceeding you can either plead guilty, schedule the case for trial or request a continuance if you have cause.
Guilty Plea: A guilty plea is an admission by the defendant that he or she committed the crimes alleged by the Commonwealth. There are several types of guilty pleas:
- Negotiated plea - a negotiated plea has several names: it is known as a "plea agreement," a "plea deal," or a "plea bargain." In a negotiated plea, an agreement on sentence is reached between the defense and the prosecution. Note that the judge does not have to accept a plea agreement. If the judge does not like the plea deal, he has the ability to refuse it and force you to trial or negotiate another plea deal with the district attorney's office. From my experience, most of the time, a common pleas judge will accept the plea deal. It is rare that he will force a case to trial or force further negotiations unless there is a heinous crime involved. The advantageous thing about a negotiated plea is the fact that there is no uncertainty. In other words, you know what your sentence is going into the plea. The judge does not determine sentence.
- Open plea - an open plea is when the defense and the prosecution agree on what charges the defendant will be pleading guilty to, but the judge will decide the sentence. After the open plea, at sentencing, the prosecution will tell the judge what they think the sentence should be and why. The prosecutor may also call witnesses such as the victim or read victim impact statements, (i.e.- letters from the victim(s) to support their proposed sentence. Likewise, the defense will have an opportunity to respond, the defense attorney will have an opportunity to argue for a particular sentence and state his or her reasons that support that proposed sentence. The defense will also have an opportunity to call character witnesses and present evidence. The defendant will have an opportunity to speak before the court if he or she wishes.
- Nolo Contendere Plea - In Pennsylvania, like other jurisdictions, pleas of nolo contendere are permitted if the district attorney's office and the judge are in agreement. Nolo contendere is latin for "I do not wish to contend." When you plead nolo or "no contest" you are simply saying, "the prosecution has enough evidence, but I am not saying I am guilty to the charge." A plea of nolo contendere has the same effect as a guilty plea. The punishment is no different. There is not much benefit to reap from pleading "no contest." The only benefit is that it says "nolo contendere" versus "guilty" on your rap sheet or background check.
If you decide to plead guilty, during your plea, the judge will read a colloquy to ensure that you understand what you are doing by pleading guilty. This colloquy will inform you of your rights including your right to a jury trial and your right to file pre-trial motions. By pleading guilty you will give up those rights. Assuming you are competent and not under the influence of any drugs or alcohol, the judge will accept your plea and either proceed to sentencing or give you another date to be sentenced.
Trial: If you decide to plead NOT guilty, the case will be scheduled for trial. In a criminal trial, the Commonwealth or prosecution must present evidence and prove its case against you beyond a reasonable doubt. With the exception of some DUI offenses, defendants have a jury trial right in felony or misdemeanor cases. You will be able to pick a jury of twelve of your peers. Jury selection is an involved process where each side selects jurors. Jury selection usually takes a half day depending on the seriousness of the case. The prosecution and the defense will be able to strike or "get rid of" jurors that they do not feel will be fair or impartial or do not like. Each side gets the same number of strikes or “preemptory challenges.” However, any juror may be stricken for cause if that juror cannot be fair or impartial in the trial. After jury selection is over, the case will proceed to trial. Trial will proceed in the following manner:
- Opening Statements: each side will present to the jury what it expects the facts of the case will be. Basically, each party will tell its side of the story.
- Prosecution’s Case in Chief – the Commonwealth will call witnesses and present evidence to the jury. The defense may cross-examine the prosecution’s witnesses.
- Defense’s Case – the defense may call witnesses and present evidence on its behalf. The Commonwealth may cross-examine defense witnesses.
- Closing Arguments – each side will argue the case to the jury and try to persuade the jury. In closing arguments the parties will argue the law and the facts to the jury.
- Jury Instructions – the judge will read to the law to the jury. The jury takes an oath to follow this law.
- Jury Deliberations – the jury will go back to a room and decide what the verdict will be as to each count on the information. The verdict can be guilty or not guilty as to each count on the information.
- Verdict – The jury foreman will read the verdict aloud in open court.
In lieu of a jury trial you may decide to proceed to a bench trial where the judge alone will decide your guilt or innocence. However, the Commonwealth must be agreeable because it also has a right to a jury trial.
Sentencing: This is the phase where the judge hands down your punishment which can consist of jail, probation, community service and fines. The prosecution and defense may present evidence and call witnesses at sentencing. You may make a statement before the court imposes sentence but you are not required to do so. The judge will listen to both parties then render a decision. If you are being sentenced in accordance with a negotiated plea between the prosecution and defense, the judge will likely follow this agreement but does NOT have to do so.
Pennsylvania Criminal Law Definitions
The following are terms or phrases commonly used by Pennsylvania lawyers and judges that may create some confusion to the non-lawyer.
ARD – ARD stands for Accelerated Rehabilitative Disposition Program. ARD is pre-trial diversionary program designed to give low level offenders the opportunity to have their charges dismissed. After the defendant completes the ARD program and has the charges dismissed, the defendant can then hire an attorney to have the charges expunged off of their criminal record. In order to complete ARD, the offender typically must complete a period of probation, a number of hours of community service, pay court costs and fines, pay the ARD program fee and the monthly supervisory fee to the adult probation department. Admission into the program is discretionary with the District Attorney’s Office.
Assistant District Attorney – an Assistant District Attorney is a prosecutor that assists the District Attorney of the county. Every county in Pennsylvania has a District Attorney's Office which is headed by the District Attorney. The District Attorney has assistant prosecutors called Assistant District Attorneys.
Bail - some form of collateral posted to a court in exchange for freedom from incarceration on the promise that the defendant will show up to court. Forms of collateral can be money, property or a bail bond of a licenses bail bondsman.
Bench trial – the judge renders the verdict in lieu of a jury. The judge is the finder of fact and law in the case.
Commonwealth – refers to the government or prosecution in a criminal case.
Discovery – refers to the evidence provided by the District Attorney’s Office to the defense attorney prior to trial. It is mandatory that the DA’s office provide the defense discovery if it intends to introduce the evidence at trial. A discovery packet usually includes police reports, photographs, video, audio tapes, confessions expert reports, lab reports, witness statements, and any other evidence favorable to the accused.
District Attorney – the elected official that is the head prosecutor and chief law enforcement official of the county.
District Court – this is the lower Court in Pennsylvania. A Magisterial District Judge presides in this Court. Magisterial District Judge’s are not required to be attorneys and many times are not. The Court has jurisdiction in hear summary offenses, arraign defendants, set bail and preside over preliminary hearings and civil cases up to $8000.00.
Information - a formal charging document filed with the Court which specifies the particular crimes the defendant is charged with and the dates on which they occurred.
Open Plea – where the defendant pleads guilty to the charges and lets the judge decide the sentence. There is no sentence agreed upon between the Commonwealth and the defense.
Plea Agreement – a plea of guilty in exchange for a specific sentence or penalty promised by the District Attorney’s Office. For example, if a defendant is facing a 2 year mandatory sentence on drug charges, the Commonwealth could offer the defendant a sentence of 1 year incarceration in exchange for the defendant giving up his right to trial and pleading guilty. The judge does not have to follow the plea agreement. If the judge does not follow the agreement, the defendant may withdraw his guilty plea and proceed to trial.
Prima Facia Case - at the preliminary hearing the Commonwealth must prove that a crime has been committed and that the accused is probably the person that committed the crime. The way I like to explain this to my clients at the preliminary hearing is that the Commonwealth must have evidence as to each element of the crime. This evidence does not have to be good evidence or even truthful evidence.
Probation – a period of time in which a defendant is supervised by the Adult Probation Department of that particular county. The defendant will have to follow certain rules of probation such as drug testing, periodic reporting, remaining arrest free, restrictions on travel, etc.
Pre-Sentence Investigation Report - the Department of Probation prepares a report to aid the Court in sentencing. It will summarize the crime, the individual's prior criminal and personal background and a statement from the victim(s).
Summary Offense – a criminal offense with a maximum sentence of a $300 fine and 90 days incarceration. It is a less serious offense than a felony or misdemeanor.