Scott Bookstein, PLLC

CASE STAGES

Being well informed means understanding the process. Below are the stages of a criminal case.

ARREST

Securing defense counsel before or immediately after arrest can be critical to a case. Counsel can stop the police from questioning a frightened client. Even statements of innocence can sometimes prove problematic (i.e. using an alibi that later becomes difficult to prove). It is not only the police, some District Attorney's Offices have conduct their own interrogations between the time of arrest and arraignment. The questioning can take place at the precinct or District Attorney's Office by experienced prosecutors and detectives, typically ten to twenty hours after arrest. The accused is tired, hungry, confused and often scared. As a result, law enforcement officials are consistently securing recorded "confessions" and/or "admissions." Since they conduct the interrogation prior to the case being docketed, prosecutors maintain that "the right to counsel" has not yet attached. When hired by family or friends promptly after the arrest, I can stop this interrogation before it ever starts. It is also important to ensure that identification procedures are conducted fairly. Having representation at a line-up can also prove helpful. Often, there is no case without a police-arranged identification. Accordingly, hiring counsel familiar with the issues surrounding identification is another way to afford yourself, a family member or friend with the best legal protection.

ARRAIGNMENT

This is a very important stage of the proceedings where the accused is presented with the alleged facts of the case and the corresponding criminal charges. Legal notices are served (including identifications by complainants and/or witnesses, as well as statements by the accused). Preserving a client’s right to testify before a Grand Jury should be served at this stage of the proceedings. On petit crimes (minor offenses limited to misdemeanors and violations) there is occasional plea bargaining and dispositions. Of course, arraignments are also the time that the Judge makes a bail determination. While the arraignment is not intended to be a preview of a trial, Judges consider not only the severity of the charges, but the strength of the prosecutor's case. Having an experienced trial attorney present to identify and highlight problems with the government's case demonstrates to the Court the likelihood of a favorable outcome, demonstrating incentive for the accused to return to Court to fight the case, and consequently appropriateness of low or no bail.

The Court takes into account numerous factors, including: the seriousness of the charges, strength or weakness of the evidence in the case, criminal history of the accused, employment and/or education history, community ties and unique mitigating or aggravating factors. The Court can release the accused on his/her own recognizance (ROR), set bail in a monetary amount (from one dollar to millions), or remand (which means to “hold” without bail). The quality of legal representation and aggressive advocacy plays a major role in that determination and often makes the difference between walking out of court, or heading to Rikers Island.

PRE-INDICTMENT CONFERENCING

This is another critical stage of the case. In some counties, up to eighty percent (80%) of felonies are disposed of prior to indictment. Accordingly, it is important to have experienced counsel who will be able to: investigate the facts (often with the assistance of a private investigator); assess the legal issues; formulate strategy; adeptly plea bargain when appropriate; and, if warranted, prepare for a Grand Jury.

GRAND JURY PROCEEDINGS

Grand Juries are “investigative bodies” made up of sixteen to twenty-three (16-23) individuals. The burden of proof is "reasonable cause" to believe that the accused committed the offense. There is no Judge present during a Grand Jury presentation. Most defense attorneys have limited experience with Grand Juries as the overwhelming majority of defendants decline to exercise their right to testify at this stage. It is essential that the client works closely with counsel to determine whether or not he/she should offer witnesses or testify in his/her own behalf. Not only is the decision pivotal, but in the event the client chooses to testify, preparation by a former prosecutor who presented hundreds of cases to Grand Juries can be a dramatic advantage. If successful in the Grand Jury, the charges can be dismissed or reduced from felony to misdemeanor charges. If unsuccessful, the case is transferred from Criminal Court (District Court outside NYC) to Supreme Court, Criminal Term (County Court outside NYC).

PRE-TRIAL HEARINGS

While rarely seen on television and not well understood by the general public, these hearings can be the key to a successful defense. The hearings typically address the legality of the police conduct and determine whether or not the prosecution can use certain evidence at trial. It may include physical evidence (i.e. the gun in a weapon possession case), statements (including "admissions" or "confessions"), and identifications (such as line-ups). Preclusion or suppression of this evidence can significantly weaken the prosecution’s case, sometimes even undermining the entire case. Having a sharp attorney, familiar with the legal issues and experienced in cross-examining witnesses can make all the difference.

TRIAL

Most individuals charged with criminal conduct never make it to this stage. For those who have been unable to work out an agreeable resolution, or unable to persuade the prosecution of their innocence, trials are the only other option available. The defense attorney must first counsel his client as to whether or not he/she is better off with a Judge (bench trial) or a (petit) Jury. Familiarity with the Judge and jurisdiction is essential to making this determination. Trials are where the issues of fact are decided and the quality of your trial lawyer can be the difference between a conviction or acquittal. A trial consists of: jury selection, opening statements cross-examination, direct examination and summations. Having a lawyer who has tried cases for the prosecution and defense provides a distinct advantage.

SENTENCING

For those unsuccessful at trial or those who entered pleas, a Judge imposes sentences, that depending on the charges can range to a conditional discharge (promise to stay out of trouble) to a lifetime of incarceration. The defense attorney's job is not over once there has been a conviction or plea. Sentencing advocacy is sometimes just as important as trial skills.

APPEAL

The defense asks a higher Court to reverse the trial Court's decision based on error.