Part One of a Brief Overview on What to Expect When You’ve Been Charged With a Crime in North Dakota and The Key Ways Having a Defense Attorney Can Help.

For some of us, the only “charges” we’ve ever received were in the form of a citation for a non-criminal traffic violation, such as speeding or driving with a broken headlight. While these do not technically constitute criminal charges, they are the extent of many people’s interaction with law enforcement or the court. This is why the thought of being charged with a misdemeanor or even a felony-level criminal offense is enough to make anyone scared.

Trying to understand the criminal procedure and court process that go with criminal charges can be like trying to navigate the Labyrinth. That’s just one reason why having an experienced criminal defense attorney on your side can be a real lifesaver! Literally.

The Process

Now the exact process depends on what level of criminal offense you have been charged with (i.e., a misdemeanor or felony). However, many stages of the procedure are still the same. Generally, the first step of the entire procedure is when an individual is charged with a crime. Depending on how that looks for you, this may already be the first step where you could use an attorney. If you happen to be charged with a crime and law enforcement is seeking to “hold you for an appearance” you will be in custody until you can make an appearance in front of a judge. This is commonly referred to as your initial appearance. In some cases, such as certain misdemeanors, you may be able to post bond and be released from jail on the promise that you will appear in court for your next appearance. For both misdemeanors and felony charges an individual is charged through a charging document such as a citation, information, complaint, and/or an indictment. This informs the individual what they are being charged with.

Initial Appearance

After the charging document is filed, an initial appearance (i.e., first appearance) will be scheduled. At the initial appearance, you will be informed of your rights and the charges against you, and depending on the charges you may be asked how you “plead”. If you have been charged with a Felony offense this will probably be in a courtroom with the judge, the prosecutor sitting at their table, and you sitting at the defense table. Undoubtedly a scene from some people’s nightmares. However, if you have hired an attorney you won’t be alone in the somewhat scary courtroom like those you’ve seen on Law and Order. Rather, your attorney will be there right beside you. All the legal jargon that the judge and prosecutor use will likely be like a second language to an attorney. So while your head is spinning with the legal rights and charges that you felt like they read at a mile a minute, your attorney’s thought process will be logical and sharp. Plus, with an attorney on your side, there is a good chance that he/she has already talked through what was going to happen with you before your initial appearance even started. Lastly, at your initial appearance, the judge will discuss “setting bond”. This is the process where the Judge considers the relevant factors outlined by Rule 46 of the ND Criminal Procedure to determine if you can be released. Usually, the judge will listen to recommendations from both the prosecutor and the defense attorney (or the defendant if he/she doesn’t have an attorney) regarding their position on release. The judge will then set the bond.

If you have been charged with a misdemeanor offense, you may not have to step foot in the courtroom for your initial appearance at all! That is if you have hired an attorney beforehand. Under Rule 43 of the ND Criminal Procedure, if you hire an attorney they are able to advise you of your rights and the maximum penalty associated with what you’ve been charged with (instead of the judge at the initial appearance). As long as the court accepts Rule 43, you may be able to avoid a personal appearance and your attorney may be able to appear on your behalf instead.

Preliminary Hearing

After your initial appearance, you will usually have some time until your next hearing. In felony offenses, your next hearing will be called a Preliminary Hearing. Misdemeanor offenses do not have Preliminary Hearings. While the time after your initial appearance until your next hearing can feel like nothing is really happening with your case. This is usually the time when your attorney is completing the “behind-the-scenes” work. It is likely that at your initial appearance or shortly after, the attorney you hired filed  “initial documents” with the Court. These documents include letting the Court (& prosecutor) know that you’ve hired an attorney; a possible waiver of personal appearance, and maybe most importantly a Rule 16 Discovery Request. This Request is aimed at the prosecutor’s office letting them know the individual charged and his/her attorney request access or copies to all discoverable documents and evidence that the prosecutor’s office has gathered in your case. This step is key! Reviewing all of this will help your attorney have a better understanding of your case. It may also identify some issues that could warrant suppression of unlawfully seized evidence; or even dismissal of your charge(s); or at the very least identify a possible defense for your case moving forward. That’s why it’s so important to have someone who knows what to look for reviewing your discovery.

If you have been charged with a felony-level offense, your next step will be a Preliminary Hearing. This hearing will be on the record, in front of the judge, and your attorney’s first real chance to see the merits of the case against you. If after reviewing your discovery your attorney feels there may be an issue for the prosecutor to establish probable cause, the preliminary hearing is where your attorney will “contest” that. A contested Preliminary Hearing can look in a number of ways; usually, the prosecutor calls witnesses who testify to their involvement in the case and outline their perception of the facts. After each witness finishes answering the prosecutor’s questions, the criminal defense attorney will then be able to cross-examine each of the witnesses. This is where the defense attorney will first be able to see “If they can or cannot handle the truth!” In all seriousness, your attorney’s ability to cross-examine the prosecutor’s witness can be super helpful not only for dispelling probable cause but also for your case if it proceeds to the next steps. At the Preliminary Hearing, the prosecutor only has to establish that there is probable cause that the charged individual committed the charged offense. This is one of the lesser legal burdens to satisfy and vastly easier than proving the case beyond a reasonable doubt.

Motion Hearing

The next possible hearing for your case does not happen in every case and comes down to what your attorney saw or found when reviewing the case’s discovery. If your attorney found a legal issue that would warrant the suppression of unlawfully seized evidence or even the dismissal of your case he/she will file an applicable motion with the court. Along with the motion, your attorney will file a couple of other documents including a brief outlining the law that supports the motion to suppress/dismiss. After the prosecutor is given a chance to respond in a brief of their own the court will schedule a motion hearing. A motion hearing is once again in the courtroom. It is in front of the judge and both parties (the prosecution and defense). Both parties are welcome to call witnesses to testify and then it will end with the legal argument between the prosecutor and the defense attorney. Depending on the complexity of the motion the judge may rule on it “from the bench” as soon as the arguments are over, or the judge may take it under advisement. If the judge grants the defense’s motion, any unlawfully seized evidence will be suppressed (meaning it cannot be used in court) or your case may even be dismissed. Both are very good options!

If your case ends here, congratulations! If not, tune in next week for Part Two regarding more of the process and further ways having a defense attorney on your side can help.

In Conclusion

While all of the legal scenarios mentioned above are great reasons you should hire an attorney for your criminal charge, there are also a number of other times when having an attorney will help you navigate the court process. Some of these benefits include reducing stress for you and your family, keeping you informed of what is happening behind the scenes, or even just having someone to talk to that knows the ins and outs of your case. All of which will hopefully make one of the hardest times in your life a little easier. At SW&L Attorneys our criminal department takes pride in helping you both in and out of the courtroom. For help with criminal matters in North Dakota or Minnesota, please contact Adam Justinger or Dierra D. Diegel at SW&L Attorneys in Fargo at 701-297-2890. For future articles, check out our blog. This article is for informational purposes only and is subject to our disclaimer.