Criminal Proceedings - pg. 3

(Based on Maricopa County, Arizona)


If you are a witness at a trial, you will probably be subpoenaed several weeks in advance of the trial. However, criminal trials usually do not take place on the first trial setting, due to ongoing discovery, plea negotiations, and date conflicts of the attorneys and judge. If a trial is continued, it is usually for a 30 day period. Always call the number on the subpoena the day before you are to appear to avoid appearing in court unnecessarily.

All defendants have a constitutional right to a trial, which can be before a jury or judge. Juries are made up of either 8 or 12 people as well as one or more alternates, who are selected by lot immediately prior to deliberations. Alternates are used if a juror is unable to complete the trial. A defendant may waive a jury trial and have his case tried by a judge.

All defendants also have a constitutional right to confront their accuser. All witnesses who are available may be subpoenaed to court to testify. The subpoena may come from either the State or the defendant. If you are subpoenaed, you must appear in court. If you fail to appear, a warrant may be issued for your arrest, and the court may hold you in contempt.

The defendant has a right to be present throughout the trial.

Although the law allows the testimony of a child victim to be taken via closed circuit television or videotape, there are certain requirements that must be met; these make this option unlikely in most cases. The prosecutor must make this decision based on the individual case.

A jury trial proceeds as follows:

The jury commissioner will send a panel of potential jurors to the courtroom. Potential jurors are questioned by the court about their employment, prior jury experience, knowledge of the case, possible conflicts, or other relevant issues. This is known as voir dire. The attorneys may submit to the judge specific questions they want asked which help determine the juror's appropriateness to hear this particular type of case (e.g., to determine if a juror has been a victim of sexual abuse or knows someone who has been accused); the judge decides which questions are appropriate to ask the jury panel. When voir dire is finished, the panel is excused for a period of time while the attorneys exercise their "strikes" of the jury panel, cutting down the number to 8 or 12 plus the alternates. This final group will hear the trial.

Sometime prior to trial (either before jury selection or after jury selection but prior to opening statements), the judge will hear various pretrial motions. Pretrial motions, which may be filed by either party, address such issues as the admissibility of evidence and the volunteering of the defendant's statement (the judge must find that the defendant's statement to law enforcement was voluntary in order for it to be admissible).

After the motions are heard, both attorneys may give an opening statement, which is an outline of what they believe the evidence will be. The State then presents its case through the testimony of witnesses (direct examination) and the admission of physical evidence. After the prosecutor has questioned each witness, the defense attorney may question the witness (cross-examination).

After the cross-examination, the prosecutor may again question the witness (redirect examination).

When the State has questioned all its witnesses and admitted all its evidence, the State rests. The defense may then present a case, proceeding in the same manner as described above, except the direct examination is done by the defense attorney and the cross examination by the prosecutor. If the defense does put on witnesses, the State may call rebuttal witnesses after the defense has rested its case.

After all testimony has been received, the State presents its closing argument, followed by the defense closing argument. Because the State carries the burden of proving the case beyond a reasonable doubt, the prosecutor gets a final rebuttal argument in front of the jury. After the closing arguments, the judge will read the jury instructions (law the jury must follow in deciding the case) which have been agreed upon out of the presence of the jury. The alternates are then chosen and excused, and the jury retires to deliberate in private until a verdict has been reached.

The jury may find the defendant guilty, not guilty or be unable to come to a verdict. Verdicts of guilty or not guilty must be unanimous. Each count must be decided independently, so a defendant may be found guilty of some counts, not guilty of others and still others may result in a hung jury because the jury was unable to come to a unanimous verdict. If the defendant is found guilty, the judge sets a date for sentencing. If found not guilty, the charges are dismissed and the defendant is released from custody or conditions of release. If there is a hung jury, the judge will set a date to retry the case in approximately 60 days.

Probation Presentence Report

A defendant who pleads guilty or is convicted at trial of a felony offense usually has a presentence report prepared by the probation department. The presentence probation officer does a background study of the defendant and contacts interested parties, including the victim, in order to make a recommendation to the court concerning the sentence. The report is in writing and is submitted to the judge prior to sentencing. This allows a victim and other interested parties to let the court know of their wishes regarding sentencing.


After a defendant has been convicted of a crime, the judge will impose a sentence on him or her. Arizona law sets guidelines (minimum and maximum prison sentences, eligibility for probation) which the judge uses in determining an appropriate sentence. The judge takes mitigating and aggravating circumstances into consideration in determining the sentence. Depending on the crime, a defendant may have the sentence suspended and be placed on probation; probation does allow the imposition of jail time (up to one year) as a term and condition of probation. Other terms and conditions, including limiting access to the victim and participating in therapy or drug treatment, may also be imposed. If the defendant violates any of the imposed conditions, the court may find, after a hearing, that the defendant has violated his probation and revoke it, in which case the defendant is sentenced to prison. Restitution and/or fines also may be imposed as a term of probation. The defendant may also be sentenced to prison, in which case the defendant is sent to the Department of Corrections.

NOTE: Every jurisdiction handles criminal cases somewhat differently. For example, the prosecutor may be known as a county or district attorney, a Grand Jury may or may not be used, the child may have to testify at a preliminary hearing. The following is an explanation of the Maricopa County, Arizona system as of 1994 and should be generally accurate, although minor variations may exist between courts and police jurisdictions. CASAs are encouraged to learn how the system in their jurisdiction functions to assist them in working effectively with criminal justice agencies.

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