Andy Marcantel
On today's episode of Fighting the State, we're going to talk about how a criminal case makes its way through the justice system. Stay tuned. This is attorney Andy Markell and attorney Mark J. Victor. We're the partners at the Attorneys for Freedom Law Firm here today with the next exciting installment in fighting the State. How are you doing today, mark? Hey brother.
Mark J. Victor
I am glad to be back on this series again because of all the things we do being a lawyer as we say it like almost every time we do this stuff, this is what we like the best.
Andy Marcantel
Yes, absolutely. We have a bunch of notes in front of us, but frankly, we could probably do this whole thing without the notes. There's
Mark J. Victor
No question about that. Just
Andy Marcantel
Another day at the office
Mark J. Victor
For us. We could turn this into a five hour video if we wanted to as well. The hard part of these videos is to try to keep it
Andy Marcantel
Short. You and I met before this video and we're like, we have to resist the urge of doing too deep of a dive on each of these subjects. Just so much to be said about each. I
Mark J. Victor
Mean, I've only been doing this 30 plus years, right? There was rabbit holes. You can go down on practically every point that we're making here,
Andy Marcantel
And the best part is it's fun for us to talk about. We enjoy making these videos.
Mark J. Victor
All right, well, so let's see how it goes, man. Where do you want to start?
Andy Marcantel
All right. Well, today we're going to be talking about the procedure of a criminal case through the justice system, which is a big topic and I think it's important to note at the beginning we're going to be giving very much a 30,000 foot view here. You're going to hear us say a lot on this video. Stay tuned because we're going to talk about this part of the case more in depth down the line, but I think we just want to flag each and every step of the case today. That's kind of the point, is just to say, okay, here's what the flow of a criminal case looks
Mark J. Victor
Like. Plus it's important to remember that not just different states use different terminology, but even within the same state, even within the same courthouse, sometimes different judges will refer to the same hearing with different language. That's right. And so again, it's general 30,000 foot view. On the other hand, cases generally flow pretty similarly through the system. Of course, when we say the system, there are different systems. There's state systems and there are federal systems, and then within the state system there are different levels of courts. So we need to go through all of
Andy Marcantel
That. And we also want to point out that our focus today is going to be criminal court because there are different types of law. There's criminal law, that's when the justice system is trying to punish you or find you guilty of a crime, some sort of a formal penalty. And then there's civil law, which is typically a party, a private party suing another private party. There are civil actions that do involve the government. Civil rules have totally different rules. That's a different beast than what we're talking about today. And I guess just to note on that, things tend to move a lot more quickly in the criminal system than they do in the civil system. I
Mark J. Victor
Mean, we do civil at our firm and I've done civil cases. You've been involved in civil cases before. Oh, yeah. But you and I wear criminal defense lawyers. Absolutely. That's what we like doing our bread and butter right there. So that's what we're going to talk about criminal
Andy Marcantel
Law. I know a good place to start, mark. Let's talk about the different types of courts. Do you want to give an overview of the different types of courts that a criminal case might take place in? I think
Mark J. Victor
It's good to think about the criminal justice system really as two different criminal justice systems and really each state, there are two different criminal justice systems. There is the federal criminal justice system. I can hear the founding fathers rolling over in their graves, like what? There's a federal criminal justice system. I don't think they intended that, but that's what we got. We got a big lively packed with lots of cases, federal criminal justice system, and I've been doing cases in the federal criminal justice system for decades. And then each state has its own state criminal justice system. They have different crimes, they have different rules of procedure cases flow somewhat differently. I mean, there's a general course in terms of how a case flows, and the reason for that is because whether a case is in the federal system or the state system, it still needs to comply with the requirements of the United States Constitution. And the big one we're going to be talking about here is due process. You're going to get a fair trial, at least by the US constitutional standards, but it doesn't have to be exactly the same, exactly what due process is and how a case flows through the system. There are differences in terms of small ground level tweaks, but as a general proposition, there are major guidelines that federal cases and state cases need to stay within.
Andy Marcantel
Okay, so there's this big nasty monster called the Federal criminal Justice System, and its job is to enforce the United States Federal Criminal Code and before it can drag you into federal court, it's got to get jurisdiction over you. So this is kind of an interesting thing because the question is asked all the time, who decides whether my case starts in the federal court or starts in a state court and which state court? And it's a question of jurisdiction.
Mark J. Victor
This one issue of federal jurisdiction, we could talk about this for the next few hours. What jurisdiction is, what federal jurisdiction is,
Andy Marcantel
How it's been horrendously hor expanded over the decades since the founding
Mark J. Victor
Disgustingly, so to
Andy Marcantel
Make it pushed beyond the possible imagination of our founding fathers. But
Mark J. Victor
That's a different story. And then also just a small point, because I think people don't understand this and it doesn't come up very often, but it does come up sometimes the idea that you could be tried, convicted and punished in both the federal system and the state system for the same thing. People think, oh, wait a second, double jeopardy. Well, in most cases, the federal government is sovereign and that's how they look at it. But in the case of double jeopardy, we're dealing with two separate sovereigns. And so the federal government can prosecute you for one act and you and the state if they wanted to. It doesn't happen very often. Could also for the very same act say this also violates a state statute and your complaints of double jeopardy are going to fall on deaf ears.
Andy Marcantel
Yes, absolutely. In fact, I remember in a pretty high profile example, never actually came to fruition, but I remember after Kyle Rittenhouse was acquitted on the state level, there were some murmurings about, well, maybe we should take another crack at him on the federal level since he traveled across state lines and the federal court might have jurisdiction. So yeah, your point is true, and it's obviously a disturbing one, but in order to get federal jurisdiction, it has to involve something called interstate commerce.
Mark J. Victor
Well, to be fair, there are some other ways to get federal jurisdiction. It could be a federal issue specifically that arises. It could be an assault against a federal officer, but the vast bulk of the criminal justice system in the federal courts is like you say, Andy going to be hung on the interstate commerce clause, which is an article one section eight of the Constitution. And when we talk about jurisdiction, that's the reason you're talking about crossing state lines, right? Because the idea is that Congress is regulating interstate commerce, but that's sort of an old notion because it can regulate commerce that occurs wholly within a state as well still under this what I call a bastardized version or construction of the interstate commerce clause. So for example, the entire federal drug war hangs on the interstate commerce clause, all of the A TF stuff. These involve firearms that travel in interstate commerce. That's why in a federal case, especially here in Arizona for example, the Ruger, many of the rugers are made in Prescott, Arizona. So if you're involved, if you've got a federal case and it involves a Ruger and it's here in Arizona, you can make an argument that the federal government doesn't have jurisdiction because that firearm never traveled in interstate commerce, to which the government will say, well, there's ammunition involved.
Andy Marcantel
I was going to say there will be a reply. They will find something that traveled in interstate commerce, even if there's a transaction over the internet or even if there's different parts that arrived in Arizona, as you say. So bottom line is in order to get federal jurisdiction, that's something that doesn't involve solely a federal issue, then they need to first prove up jurisdiction, which is this is a case that has to do with interstate commerce basically in some way.
Mark J. Victor
Yeah. Again, we could go off on this subject, but there've been some interesting cases out there for people who are interested in this checkout, wicked versus Filburn in 1942, what happened to Farmer Filburn and the Agricultural Adjustment Act is a really great story of what happened to the Commerce Clause. Then we had the Reiche case more recently, not so recent at the moment, but this is when medical marijuana started getting popular and people in California who had terminal illnesses were growing marijuana in their backyard, using it on their own property, getting charged under federal law. They argued, Hey, no jurisdiction. And the reason is nothing happened. Nothing traveled in interstate commerce and they lost, and the reason they lost was based on wicked versus Filburn. They said, well, okay, what you did doesn't actually travel in interstate commerce, but the cumulative effects of what you do and what everybody else does, and even though it's an illegal product, marijuana can affect the price on the open black market of marijuana. And that affecting of the price in other states is enough of a connection to interstate commerce. Don't believe me. Check out the rice case.
Andy Marcantel
Is it painfully clear at this point that the United States Federal criminal code could criminalize anything it wants and have jurisdiction over the case on the justification of interstate commerce? I mean, it's just been expanded. This interstate commerce clause has been bastardized and used to expand the federal criminal jurisdiction to virtually any crime that it feels like prosecuting. So there you go. We should
Mark J. Victor
Do a whole podcast just on what's happened to the Commerce clause over the
Andy Marcantel
Years. Let's save that for a different
Mark J. Victor
Podcast. Podcast. I know I just as a quick footnote here before we move on, I did have this conversation with the United States attorney once and I said, look, man, is there any crime you can possibly think of that you don't think you have federal jurisdiction over saying, well, DUIs, well, of course cars move in interstate commerce, we could totally do that little petty thefts. While most of those products move across state lines, it's like almost nothing. In fact, it's hard to think of anything that the federal government couldn't if they wanted to make a federal
Andy Marcantel
Crime. I've done this thought experiment and it's virtually impossible when you see, especially the Reich case reasoning there, which is that, oh, okay, even if it wholly happens within a state's borders, if it in any way, shape or form affects something or at least possibly affect something outside of the state, there's an argument for federal criminal jurisdiction.
Mark J. Victor
There's that heart of Atlanta case as well, which is, well, the restaurant is connected to a road and the road is connected to another road and that road truckers traveling interstate commerce and therefore there's federal jurisdiction. I mean, the cases just get crazy.
Andy Marcantel
So this, that's federal jurisdiction. Then there's state jurisdiction, and this is the one oftentimes that we see under state penal codes, and there are different types of state courts. There are felony state courts, courts of general jurisdiction. Then there are courts of limited jurisdiction. So what does that mean? Well, there's certain courts where they can charge you with any state crime, whether it's a felony, whether it's a misdemeanor. Most of the time the civil cases, civil lawsuits happen in this general jurisdiction state court, and then there are courts of limited jurisdiction. What that means is they can't bring major felonies or big serious cases in those types of courts. Typically, this is limited more to misdemeanors, petty offenses, civil traffic violations, smaller level offenses.
Mark J. Victor
So your general jurisdiction courts are generally going to be the superior court. Some states will call them maybe the district court or
Andy Marcantel
County court,
Mark J. Victor
County courthouses, usually that level. That's where they try the murder cases. That's what we mean by general jurisdiction. Their jurisdiction covers the biggest stuff that we have, which is going to be first degree murder. If you're in a death penalty state, it's those kinds of cases go there. That's general jurisdiction. We can handle any kind of case.
Andy Marcantel
To be clear, they can also tack on misdemeanors and often do tack on misdemeanors, on felony cases.
Mark J. Victor
It doesn't mean that they can't handle the cases that the limited jurisdiction courts can, but the limited jurisdiction courts are usually going to be little city courts, smaller level courts, sometimes they're called justice courts. Think of these akin to a small claims type of
Andy Marcantel
Court. Court. Municipal
Mark J. Victor
Courts. Yeah, municipal courts, and usually they're limited to misdemeanors. Sometimes they can do limited things on felonies, maybe issue an arrest warrant, a search warrant, maybe handle a preliminary hearing, something like that. Set release conditions, limited things, but they don't, lots of times you can't enter a plea in a court like that. You have to transfer. So they'll handle sometimes some of the preliminary matters in the more serious cases, felony cases, but they have limits in terms of their jurisdiction, what they can do.
Andy Marcantel
Yeah. Okay. So now that we've kind of explained what the different types of courts are, it's probably a good idea to start at the beginning. How does a case start? And there's a couple of different options that a prosecutor may have when they're about to initiate a criminal prosecution against somebody, and there's really two main routes that a prosecutor can go. They can either simply file a complaint, so a prosecutor, somebody, a lawyer for the state can say, you know what? I think that I can prove that this person committed a crime, and so I'm simply going to file a complaint in the relevant court claiming that that person committed a crime and summoning them to court, and then we're going to have something called an initial appearance. The other possibility is they could take the case to a grand jury, and this is typical for more serious felony crimes.
Andy Marcantel
In fact, there are certain jurisdictions that require certain cases to go to local grand juries, and a grand jury, as we've talked about in previous videos, is just a group of people from the population, much like a jury in a trial is assembled. It's a group of people from that particular community who are presented evidence by usually a prosecutor, maybe through the testimony of the responding officer or detective, and they lay out evidence for the grand jury. And then at the end, if a quorum of the grand jury determines that there has been a felony crime here, then they return something called a true bill, which leads to an indictment. An indictment then gets sent out. Sometimes it will get sent to the defendant saying, here's your court date, you've been indicted, and other times it leads to an arrest warrant. But either one of those things happens and it ends up in something called an arraignment. So once again, you got a complaint that leads to an initial appearance where you got an indictment that leads to an arraignment.
Mark J. Victor
A couple of points here we say case, this is the way the case starts. We've chopped off the beginning part, right? Because there's a whole arrest issue. Usually cases will start there,
Andy Marcantel
And if you want to know more about that, see our last video. That's
Mark J. Victor
Right. So we're skipping right over that part and we're starting with sort of the charging, and there's two different ways as you've explained, that a case gets charged, and I think that the main difference here is when the prosecutor swears out and files that complaint to charge somebody, and again, we're talking about felonies because felonies and misdemeanors are different because felonies are more serious when the prosecutor swears out that complaint and files and all we got so far is the judgment of the prosecutor that a crime's been committed here. Usually the standard in a prosecutor's office is going to be something along the lines of we have a reasonable likelihood of a conviction. That's the reason we're swearing out that complaint and we're filing it. And that's not enough to subject a citizen to the full force of a felony prosecution. A felony prosecution's a big deal.
Mark J. Victor
Maybe you're not an a OR, and so you've got to fork out a whole bunch of money to defend yourself and that can be very stressful and change your life. And so that's why we need a probable cause. Hearing that prosecutor swearing out the complaint, that is an official charge and you are charged when that's filed, but the case doesn't go much further until you get that preliminary hearing when they do the other route and they bring the case to the grand jury, and an indictment is a term of art, it means something. So when you hear that word indictment, that should tell you in your head, this case has gone to a grand jury.
Andy Marcantel
We know that the grand jury was involved, that
Mark J. Victor
Word, right? So when you have an indictment that serves that grand jury hearing serves as your probable cause hearing. So when the case leaves the grand jury and there's an indictment, allegedly a group of your peers has heard evidence and decided, yep, there's probable cause here. So you're not entitled to a probable cause hearing that's different than when the prosecutor swears out the complaint. You are still entitled to the probable cause hearing because there hasn't been a grand jury indictment. That's the purpose of the preliminary hearing. The purpose of that hearing is for the judge. Now the judge will be the neutral decision maker instead of the members of the grand jury. There's no grand jury when the complaint is filed, the complaint gets filed, it doesn't go to a grand jury, instead goes to a preliminary hearing and the judge serves as the neutral decision maker not to determine whether you're guilty or not guilty, but instead to determine is there enough evidence here to let this case go forward. That's the probable cause determination at a preliminary hearing
Andy Marcantel
And a preliminary hearing is very different than a grand jury gathering. Totally, totally different process. In fact, the defendant and their attorney are allowed to be there at a preliminary hearing. We've talked in the past about how the grand jury hearing is a secretive hearing where the prosecutor runs the show. In some jurisdictions, it's even illegal for the prosecutor to tell people when the grand jury is going to be convened and what they're up to. So it's a very secretive process, whereas a preliminary hearing is in front of a judge in open court and you can present evidence to the judge and you can cross examine the witnesses of the state. It's very similar in terms of how the state presents evidence similar to a grand jury and the fact that they're probably going to put a cop up on the stand. The cop's going to testify to the basic facts. And remember here, this is really important for people to understand in both the preliminary hearing after they file a complaint or in a grand jury presentation, they are not the fact finder whether the judge or the grand jury, they are not reaching the question of whether the person is guilty beyond a reasonable doubt. That's supposed to be way up here in terms of the burden of proof. They're going for a much lower standard, which is there at least enough evidence here to convince the fact finder that there's probable cause to proceed.
Mark J. Victor
Yeah, nor are they restricted by the rules of evidence. That's right. So hearsay is admissible. It comes in. So evidence that may not come into a trial does come into a preliminary hearing or the grand jury proceeding, that grand jury proceeding just to sort of fill that thing out a little. It's even more ominous I think, than we left people off there. You don't get notice of it. You don't get to go. There's not even a judge in the room, right? There's the prosecutor, usually a police officer who's the witness who gets to testify to hearsay. I talked to Bob, who spoke to Fred, who said the following things that's admissible at a grand jury hearing. We've
Andy Marcantel
Got no objections, no evidentiary objections that we can do on that. It all comes in. The
Mark J. Victor
Only people in the room are the prosecutor, the witness, which is usually a police officer, right? Not exactly a neutral witness. The members of the grand jury and a court reporter fortunately, and in many states you can get a transcript of what happened there, but there can be very tight time limits in terms of challenging what happened there to say, Hey, wait a second. This wasn't a fair hearing for all kinds of reasons. You didn't present the law properly. Or Hey, you know that self-defense statute that might've applied? You didn't even tell 'em about that or something or something was said that was prejudicial. That doesn't generally exist in the federal court and the federal court. When you've been indicted by a grand jury, you're very unlikely to get that transcript to challenge what happened at the grand jury. And I think that's very unfair, right? It's a secret proceeding. You don't get to go, you don't have notice of it. You have to
Andy Marcantel
Take their word for it that they gave you a fair presentation. That's
Mark J. Victor
Right. As a defendant, and I don't think that's the right rule, and in many states, including Arizona, there are tight time limits as I've said, but you can get that transcript, review it, and then file what we call a motion to remand back to the grand jury. Really not. You can't say I disagree with what the grand jury found. They just got it wrong. You can't say that that's what a trial's for. What you can say is something about the way the case was presented or something away about what was something was said there was unfair, unfair. Maybe
Andy Marcantel
They hid something clear, what we call clearly exculpatory evidence was not shown to the grand jury. In other words, evidence that would make them less likely to indict if they were aware
Mark J. Victor
Of it, right? Or the prosecutor said to the police officer witness, look, tell us about what this jerk did or
Andy Marcantel
Something like that. Presented it in inherently unfair way or something.
Mark J. Victor
Yes, and we've seen stuff like that
Andy Marcantel
Happen many, many times.
Mark J. Victor
In fact, we've had many cases remanded.
Andy Marcantel
That's right. So now time to connect a few dots for the people who have been following this series. Okay, so you just heard us talk about the grand jury presentation and what's presented to them. If you recall back to previous videos we did, we talked about how if we are involved in the case, in the pre-charge stage, there are certain things we can do to make the prosecutor present certain things to the grand jury. So there you have it to kind of draw that line back. And another.to connect for you guys is you remembered us talking in a previous video about release conditions. What is the question of release? That's of course, where are you going to be as the defendant while the case is pending? So to connect this dot, after that indictment has been issued or after they drag you into court with a complaint, there is now that first hearing, that's where the release conditions are going to be determined. All that stuff you heard us talking about in previous videos where we're ramping up for the case and trying to put our client in the best position for release conditions. All of that now comes to a head at that very first initial appearance.
Mark J. Victor
Alright? So most of this has been felony stuff. That's what we like dealing with, but misdemeanor stuff's a little different. Misdemeanors are seen as less serious because they are less serious generally speaking, and different states are different here. About a year is the most amount of time you can get on a misdemeanor. Some states you can do up to over two years in
Andy Marcantel
Of jail,
Mark J. Victor
Of jail time on a misdemeanor. Other states like Arizona, only six months, but misdemeanors are less serious, but because they're less serious, you don't generally have any right to a probable cause hearing, so you're not going to get a preliminary hearing on a misdemeanor and in lots of places the police officer can charge you. This happens on the side of the road oftentimes, right? You get pulled over, you see people playing these games on the side of the road, which in most places people should refuse
Andy Marcantel
By the games on the side of the road. You're referring to the field sobriety tests. Those tests where the sole decision maker on how well you did on them has a direct interest in finding that you failed them. Most of the
Mark J. Victor
Time follow this imaginary line of step-by-step stand on one foot, touch your nose. It could be any kind of game. There's a few that are approved by the National Highway Traffic Safety Administration, but at the end of that, the police officer can give you a piece of paper, then you are now charged with a misdemeanor crime.
Andy Marcantel
Other types of misdemeanors include typical domestic violence stuff without major injuries and traffic related reckless crimes, yeah, things like that, lower level crimes. But this is an important point that you make because felonies are really, really serious to be charged with a felony and risk being convicted of a felony and losing your rights, losing your gun rights, losing your civil rights to vote and participate in the government interfering with your right to travel and being branded as a felon. Not to mention risking prison time is so serious that most jurisdictions in the United States say, we don't trust that decision to charge a felony to a cop, to the person who is arresting you or even a trained detective. We don't trust that person. We want somebody with a law degree that we call a prosecutor who in theory understands what legal burdens are and in theory knows what case is likely to succeed and what isn't and hopefully isn't using the law in order to either promote some sort of a political agenda or use it in a malicious way. If all those things are done ethically, then it should be charged by a prosecutor, not a cop. That's what we say about felony prosecutions
Mark J. Victor
In staying on the train on misdemeanors and felonies and how they differ. Not all misdemeanors are entitled to a jury trial, and so under federal law, there are many different misdemeanors that you don't have to give a jury trial on.
Andy Marcantel
Hold up. Isn't there something called the sixth Amendment that says every criminal case gets a trial?
Mark J. Victor
It says in all criminal cases, but that's not really what they meant. According to the Supreme Court, what they meant was all criminal cases that sort of existed at the time. They said all criminal
Andy Marcantel
Cases, but it doesn't say that. Mark, where's it say that? I remember this aha moment when we learned about the sixth Amendment way back in law school. I remember the light bulb turning on and saying, hold on, so you're telling me that the courts can just reinterpret the plain language of the statute and extrapolate and come up with whole new rules, which of course is the exact basis of the expansion of the federal criminal code under the commerce clause that we were recently bitching about. So yeah, the power of interpretation of judges is pretty wild.
Mark J. Victor
Imagine if they said the same thing about the Fourth Amendment. Well, they only intended to restrict unreasonable searches and seizures to things that could be searched and seized at the time they said that. So cars, no, sorry, you have no computers.
Andy Marcantel
Digital data. The founders didn't mean that kind of stuff or
Mark J. Victor
The Second Amendment. Of course, the anti-gun lobby would love this. This only means arms that existed at the time. They said arms. So you get muskets musk stuff muske like that too. You don't get anything past that. So yeah, it's a hodgepodge of, this is why I say the power to interpret is the real power here, which is why you need the right people on the Supreme
Andy Marcantel
Court Court. Why the Supreme Court are in the running for the most powerful people on the face of planet Earth is because they have that power of interpretation and the final power of interpretation in American
Mark J. Victor
Law. That's why it's not just about what it says, it's about what somebody says it means, right?
Andy Marcantel
It's the person in the black robes interpretation of what it says. Now we are past that initial appearance. We have some release conditions in play. We now are chugging along with a criminal case, and now we are moving on from the beginning of the case to the middle of the case. So the middle of the case consists of a number of hearings. We often call these all kinds of different things, pretrial conferences, pre-trial hearings, case
Mark J. Victor
Management conference
Andy Marcantel
Case management conference
Mark J. Victor
Status, conference
Andy Marcantel
Status conference, different initial pretrial conference, comprehensive pretrial conference. The list goes on and on and on, but they're all basically the same thing, which is intermittent hearings usually spaced about a month apart. Typically though it could be less and it could be more. And the idea here is we're going to use these hearings every now and then to check up on the parties and make sure that everybody is playing by all the rules. Here's some of the types of things we talk about as attorneys at these hearings, most of which are very brief. The judge says, Hey everybody, welcome to court today, prosecutor, did you give the evidence that he requested last week to him? Okay, defense attorney, did you file your notice letting them know what experts you're planning on using? Okay, everybody's playing nice, great. Here's your next court date. We'll see you in 30 days. Yeah,
Mark J. Victor
Really the judge is being the babysitter here. So once you get past the initial stuff, everybody knows we're not ready to try the case yet. Why aren't we ready to try the case? Because we haven't done discovery yet, and that's going to be our next video. We don't know what the case is about. We're not prepared to try the case. So there has to be a period of time as the case progresses, motions get filed and discovery is exchanged, and as that process is occurring, usually the judge is going to say, everybody come back in 30 days. And then the judge, it depends on the parties too, right? Because I've had the experience where the judges on the bench will say, look, I know the parties here. I know the lawyers involved. We don't have to come back every 30 days. You guys give me a shout if you need something. Otherwise here's the trial date in a year or something like that. That could happen as well.
Andy Marcantel
Yeah, the 30 days is not a hard and fast rule by any stretch. There are tons of courts that have a kind of 60 day setting or a 45 day setting. It's really judge's preference and it also has to do with caseload going through that court,
Mark J. Victor
And this can be a good time to maybe quickly resolve some issues. Hey judge, I asked the prosecutor to send over this and that, and the prosecutor said, I don't think we have to send you that. And do you have a thought on that judge? And sometimes the judge will say to the prosecutor, why do you think you don't have to? And they'll resolve it right there. Other times the judge will say, file a motion on discovery. Let me read it. You guys brief it. I want to be familiar with the issue. So that kind of thing happens sometimes. We'll talk about a trial date. How are things progressing? How long do you think the trial is? What the judge really wants to know is, Hey, is this thing going to trial or are you guys going to settle it? And essentially what we're saying, especially at the earlier hearings is we don't
Andy Marcantel
Know. We don't know yet. We
Mark J. Victor
Don't know yet. At some point when you keep showing up month after month after month, the judge is going to start getting a little cranky, Hey, why aren't you guys telling me essentially whether we're going to trial or whether we're going to have a plea in this case? And the discretion that the judge has is to say, okay, I'm just going to set it for trial. It's been long enough you guys have farted around with this case. I'm setting the case for trial.
Andy Marcantel
Yeah, there's a really important point here, and I tell this to clients all the time that the most important things that happen in a criminal case happen outside of the courtroom. That's right, absolutely. With the exception of trial and certain really important evidentiary motions, for example, which we're going to spend a lot of time on, most of the important stuff happens outside of trial. What type of stuff am I talking about? Discovery, which we're going to talk about next video. This is where they're sending us all the evidence in the case and we're doing our due diligence to research everything. Experts. We're getting experts involved in cases, getting experts reports, mitigation. This is a fancy lawyer way to say stuff that shows that our client is a good person in order to present context and things like that. Negotiations, all this stuff leads towards seeing if we can negotiate the case and getting some sort of a better deal. All that stuff typically happens far outside of the courtroom between the lawyers.
Mark J. Victor
Also motions, right? Motions come up. There could be motions for virtually anything, and sometimes you might have an issue that could resolve a case in one direction or another. Say for example, just take a typical drug case where the traffic stop and somehow the police officer gets into the vehicle and there lo and behold, under the seat there's the bag with the offending drugs. Well, if the defense lawyer says, I think that was a bad search, and talks to the prosecutor about it, and the prosecutor says, no, I think it was a good search. That can be the kind of emotion that you want to litigate in court right away because that could resolve the case. The defense attorney might say, well, if the motion loses, nobody else is in the car. And my client maybe didn't follow our and every other competent defense attorney's advice to just shut up, but instead said, oh yeah, they're my drugs.
Mark J. Victor
Something like that. That's a loser case. And so the only thing you got is that motion to suppress. You litigate that and then depending on which direction the judge resolves that, that usually will resolve the case. And also there are steps along the way. Hey, I got the suppression motion. Do you really want me to file the thing? I send a few cases, then we draft it up. We send it over. Hey, we haven't filed it yet, so you don't have to respond to it yet, but take a look at it. Why don't you make us this great deal? We'll go away then. Okay, we drafted it, we filed it, but we asked the judge to put it on hold. You don't have to respond. Why do we care about that? We know how prosecutors are. Sometimes their attitude will be, look, if you make me work on this case, I'm not going to give you a good deal, but if you want to resolve it without me having to put a bunch of time into it, I'll give you a better deal. So we got to be careful about that. Again, as defense attorneys, we don't want to give up any possible advantage we can have on a case.
Andy Marcantel
Yeah, that's a really sad thing. That's a reality, isn't it? In a lot of prosecutors' offices, remember that we've hearkened on this before. The job of the prosecutor is different than a defense attorney. The job of a prosecutor is they have an ethical obligation in addition to just winning the case, trying to win as much as they can. They're supposed to also do justice. And so oftentimes when we bring up one of these constitutional issues and tell the prosecutor, Hey, I'm really concerned that maybe the cops violated my client's fourth or fifth or sixth amendment rights in this case, which if the judge agrees with me will result in a lot of the evidence being thrown out. Well, unfortunately, some prosecutors, not all, but some prosecutors take the tact of, well then go ahead and file it and I'll just yank all plea negotiations and I guess we'll just go to trial and you can see if you can convince the judge of that something like that.
Andy Marcantel
Rather than saying, if in theory a prosecutor was concerned about doing justice, they should be just as concerned. If they thought that there was an arguable colorable claim of a constitutional violation, they should agree with us. They should say, holy cow. Okay, I see why you're concerned that the cops may have violated his rights. Let's litigate that motion. I'll still do my due diligence and advocate for the state. Maybe the prosecutor will say, but let's definitely resolve that, and I'm not going to penalize your client in any way for asserting their constitutional rights. In fact, some prosecutor's offices even have policies saying that if you make 'em do any work on these pretrial motions, then they yank all plea negotiations.
Mark J. Victor
To be fair, we've had some good prosecutors on this
Andy Marcantel
Point. We've had some excellent lawsuits
Mark J. Victor
Who said, you know what? It looks like a legitimate issue to me. Let's litigate it and see which way it goes. I'm interested in doing justice. They're out there. But that's been unfortunately more the exception to the rule. They're
Andy Marcantel
The minority,
Mark J. Victor
At least in my experience, that's been the minority. So there are two pressures really to get the case resolved. Pressure number one, which is I think the real pressure, which is, Hey, everybody's busy. Their cases are piling up. We need to move these cases. The system is overloaded. And so because of that, what they refer to as the courtroom work group, which is the judge, the prosecutor, and usually the public defender because about 90, 92% of all criminal cases, somebody's represented by a public defender, all three of those have one interest in common, which is, let's move this case. We're all busy cases keep getting filed. And so that is, in my opinion, the real driver to move these cases through the system. But that's not what they cite. What they cite is the sacred rule to a speedy trial. They say, ah, the defendant has this right to a speedy trial. We got to get this case moving. It's been a long time. However, I'd be remiss if I didn't point out that on those occasions when the time does look like it's running out, judges generally are loath to dismiss a case with prejudice. They may dismiss it and without prejudice and let the prosecutor file it again and restart the clock or, yeah.
Andy Marcantel
So real quick with prejudice means they cannot file it again. It is gone. The case is dismissed without means they can file it again without prejudice. As long as it's within the statute of limitations, the states can refile or
Mark J. Victor
They'll do something more fancy because the federal constitution has never laid out, here's how many days it takes before your speedy trial has expired. So states have rules, and they're generally pretty squishy. They allow you to find things like extraordinary circumstances. This is extraordinary. We're going to bump the last, final last day for trial to protect the defendant's speedy trial, right? We'll bump that out a couple of months. So anyways, they usually will cite the defendant's right to a speedy trial. I also will point out that the impact of this argument is different, whether the defendant's in custody or out of custody, if the defendant's in custody, then understandably the defendant wants to move that case and get the thing resolved. Because I mean, look, if you wind up not guilty at trial, you're wasting your time right now sitting in custody. But if the defendant's out of custody and they're working and they still want to get the case resolved, but the pressure is not as high to move that case, and so generally that's what puts pressure on the judge to move the case. Those two things.
Andy Marcantel
So in this middle section of the case, as we said, motions are being filed oftentimes, and there might be some additional hearings that are said in this middle part. Some are called oral arguments, some are called evidentiary hearings. But that tells you that this is us showing up to resolve some motion or some issue. An oral argument simply means that we're going to orally argue it to the judge that our side is right, oftentimes with the assistance of pleadings that we have filed. So in other words, written arguments that we have filed to support our positions, whereas an evidentiary hearing, it's kind of like an oral argument. Plus we're letting the court know, Hey judge, we're going to try to convince you of something and we want the court to make preparations. We're going to bring in some evidence to present to you in order to support our position.
Mark J. Victor
So that comes up a lot. There are also motions to designate a case complex that's important because some cases are so big, maybe you've got some huge fraud case. There's hundreds of counts, big
Andy Marcantel
White collar case, big tax cases. We've done
Mark J. Victor
Boxes and boxes and boxes of discovery to go through. You need forensic accountants and this that that's not going to lend itself to the ordinary timelines. So you may go to the judge and say, Hey, judge, this thing is complex and we want a trial date that's two years out or three years out or something like that. So that's the kind of thing that you might start thinking about in the middle of a case. Once you get the discovery, there can be questions about competency. Our client starts talking about the people from the lizard planet are directing his brainwaves and this and that gets us thinking maybe this guy's not competent. I think people sometimes aren't clear in their head about the really two separate questions of competency. Question number one right now, is the defendant competent to stand trial? And that could be a big question, right? Because if the defendant's not competent to stand trial, then you can't try the defendant right now because the defendant can't assist in his or her defense.
Andy Marcantel
Let me pop in and point out a very important distinction that you just made. The question of whether your client was competent or suffering from a mental illness or whatever it may be at the time of the incident. While important is a different question than competency at the time that the case is pending, because what you're talking about, there might be a defense to the actual charge, maybe guilty but insane or an insanity defense or didn't have the mens rea or mental state required for the conviction of the crime. But it's a different question entirely when the case is already rolling through this middle section of concerns being developed about your client's competency. And typically the court will have a whole process for this, and it's usually referred to as a separate court like a mental health or a competency court,
Mark J. Victor
Because judges are generally not well equipped to make fine distinctions between arguments that usually psychologists or psychiatrists who might disagree with each other on the stand. So the question of is the defendant competent to stand trial right now is different than the question of was the person somehow legally insane at the time of the incident, right? Because something may have happened at the time the person was not sane and then they got picked up and now they've been treated and they're on meds and they're perfectly competent now, but a guilty but insane or a not guilty by reason of insanity, which essentially is what you're saying, the person in a different states have different tests here, but a lot of states use the McNaughton test, which is did the defendant understand the nature and quality of the act? They were robbing a bank, but instead they thought they were defending themselves against the empire of people from the lizard planet or something. Okay, that's a not sane at the time of the offense. And that's a defense that you allege and bring at trial.
Andy Marcantel
That's right. And also really important to note here about competency. If we as attorneys develop concerns about a client's competency, this isn't an option for us on whether or not we have to file for a competency assessment if we have legitimate concerns, our client's constitutional right to due process and be treated fairly overrides anything else. And so it's not like we can learn that a client is suffering from horrible problems that might compromise their competency and then just say, I'm going to willfully ignore those and stampede them through the justice system. That would potentially be ineffective assistance of counsel. So it's an ethical obligation that we have if we're concerned about competency. So
Mark J. Victor
As we sort of grind through what we're calling the middle of the case, we work through these motions, we get the discovery done. Usually at some point here, the prosecutor is going to say, Hey, I got a plea for you. And then you get into negotiations, and then we show up at the court and say, judge, we got an answer for you. And in more than 95% of the time, the answer is going to be, judge, we've worked out an agreement. And so you're not entitled to a plea. People think sometimes that you're entitled to a plea offer. There's nothing in the law that says you are entitled to a plea offer, but prosecutors generally make them. They don't do it in every case. If it's a very serious case or a high profile case, and they may want to look really tough, they may not make a plea offer, right? And so that happens on cases,
Andy Marcantel
But that 95% statistic is based upon every jurisdiction in the United States. They're all right about 95%, most of them actually a bit higher than that. But if you average 'em all out, about 95% of cases that are charged in the criminal justice system end with some sort of an agreement between the parties. Now, what does that agreement look like? Maybe it involves some sort of a guilty plea. Maybe it's something like a diversion. We're going to talk more about the types of different deals that can be made between the parties in lieu of trial in a later video.
Mark J. Victor
So basically what happens there is you call the court and say, Hey, judge, we got an agreement. Set it for a different kind of hearing, a change of plea hearing. And these are pretty mechanical, so the judge will get the plea. Sometimes the judge wants the plea in advance so they can study it. Other times you can walk up there and just hand it to them. In federal courts, it's a lot more formal. Usually you're going to have to send that plea to the judge. Sometimes it's not even the district judge that will take that plea fact. Oftentimes, they will assign it to a magistrate judge who will do the task of accepting that plea. That's because it's very mechanical. Judges have a certain script and they follow it pretty clearly. Have you had any alcohol, drugs or medication before this hearing? Can you think clearly? How far have you gone in school? Did your lawyer go over this plea? There's a whole set of questions, the same ones every time. The job really is to determine whether the defendant is competent and read the plea and understands the plea and is willing to waive the rights. Okay? That's the change of plea hearing. We're going to talk about that more. And there are a lot of things to talk about with that. But then once that hearing is complete, you're off to a sentencing. And then that's the end of the case.
Andy Marcantel
And we're going to have a lot to say about sentencing because in between that change of plea hearing and the sentencing, a whole bunch of stuff happens or should happen if you have competent counsel to prep for the sentencing hearing to make sure that you get the best results. So I can't wait to talk about the sentencing, but another possibility is the case is set for trial. This is where we haven't been able to reach an agreement, and our client is asserting their constitutional right to fight the case and go to trial. And so at this point, a trial date is set, maybe a trial date is affirmed. If there's already one on the calendar and we're heading to trial at this point,
Mark J. Victor
Sometimes we call that trial track because we know there are going to be certain types of hearings. We're going to have to resolve jury instructions. There's going to be questions that are going to arise about how many jurors do we need, and just different things that come up in terms of trying a case. And we're on a different track, and we'll talk about that in a future video as well. But that's pretty much how this middle part of the case ends, either A, we got a deal and we're going down that road, or B, we don't have a deal and we're not going to work out a deal. And now we're on the trial track.
Andy Marcantel
So if you're acquitted at trial, that's great news. Nothing further happens. You get to walk out with your attorneys, and we all get to go have lunch together if you're convicted or if you take some sort of a plea that requires a conviction, then it's going to go to a sentencing. And this is kind of the end phase of the case. So we got the beginning, the middle, the end, the end all revolves around this sentencing hearing. And so what is the penalty for the conduct that either you were convicted of or that you pled to? What is the penalty for that conduct going to be? And then there's one more kind of step to finish the chronology here on the procedure of a case, which is post-conviction. What's going to happen? It could be as simple as you're not going to challenge anything further.
Andy Marcantel
You start your sentence. You either start probation or you go to prison if you were convicted of something with prison or you might decide to appeal your conviction. Now, appeal is very different than state and federal post-conviction relief. So you'll hear these things kind of erroneously used interchangeably a lot. I see a lot of misperception in the public about these two different things. But an appeal is when you're convicted and you haven't waived your right to challenge your conviction. And what do I mean by that? Most, if not all plea agreements in most jurisdictions require you to waive your right to an appeal. In other words,
Mark J. Victor
It's a term of the deal.
Andy Marcantel
You say, if you're going to agree to this deal, we don't want to hear from you anymore, defendant. So in this section, you'll see that you're waiving your right to an appeal which is otherwise an important constitutional right. Now, if you're convicted at trial, you haven't waived anything. And so at that point you have a right to an appeal. Of course, we're going to have a whole video on what is an appeal, what's the standard for an appeal? Then there's something else under most state constitutions as well as the federal constitution, something that you have a right to after you've been convicted either at trial or by plea that you cannot waive under any circumstances. And we lawyers typically call this post-conviction relief and post-conviction relief usually is a state specific, maybe statute or something under the criminal procedure that gives you a way by which you can still challenge your conviction even if you waive to right to appeal.
Mark J. Victor
And I'm glad you pointed that out just as an example, because people might be thinking, what do you mean you can't waive it? Well, things like ineffective assistance of counsel. We don't want defense attorneys to make mistakes on cases and then parade their clients in to say, well, you waive your right to argue later on that I screwed up. Right?
Andy Marcantel
Right? Say you have a totally incompetent attorney who tells you that you're going to get something really special with this deal, or maybe even blatantly just gets the terms of the deal wrong, and based on their advice to you, you sign the deal and you waive your right to appeal. The idea with post-conviction relief is we can't hold you to that deal. If you had completely incompetent attorney who gave you the wrong advice, you can still challenge their competence.
Mark J. Victor
So it's a limited, it's what's left over. It's what the courts have said. You can't waive stuff like the law changes in the future. After you pled guilty to something, it's no longer a crime.
Andy Marcantel
Surprise evidence,
Mark J. Victor
New evidence comes up that is new and it's important. And you couldn't have got it before. If you had done everything you tried, you exercised reasonable diligence, and you still couldn't get it. Now, here it is and it changes everything. Something like that comes up that can be really important. Or say for example, there's a new technology, we couldn't test, DNA is really popular. So all these old cases where it was preserved and we still have it and we could test it, we just didn't have the technology at the time. This is where they're coming in on petitions for post-conviction relief.
Andy Marcantel
So everybody can stay tuned and look forward to our very extensive video on appeals and post-conviction relief. But there you have it. There's kind of your basic chronology of the beginning, the middle, and the end of a criminal case. A couple other things that I think are worth noting. What happens if you have two cases simultaneously, which happens a lot. It does sometimes that they'll intentionally, the state will intentionally charge different offenses at the same time, and so there's lots of different options. But typically the smart thing to do is to track those cases along with one another. That's just kind of a slang term. We lawyers use to basically say, make sure that all the cases occur on the same court dates so that we can all go in at the same time. Same court date, same judge. And there's strategic reasons for this too. For example, back in that negotiation phase we were talking about, we might be trying to resolve all of the cases together. We call this a global resolution. We'll spend more time on this in our negotiations video. And you
Mark J. Victor
Got to be very careful because especially if you've got two different cases, two different times, two different courts, and the lawyers aren't coordinating, you can create a prior conviction.
Andy Marcantel
Oops, you just generated a prior, yeah,
Mark J. Victor
Yeah. You generate a prior conviction that now can enhance the sentence on the other case. So you got to be very careful about this stuff, and that's the reason why if you've got two cases going, the lawyers need to be talking to each other, even if they're in different states.
Andy Marcantel
Last thing I'll briefly note is the description that we just gave describes an actively charged criminal case. You're actually facing an active new charge that you were just indicted or the complaint was filed, and then it follows this procedure. This is not describing a probation violation case. That's right. You may have been convicted of something previously and sentenced to probation as part of your punishment, and maybe you're accused of violating probation maybe
Mark J. Victor
With a new crime, which brings a new case. So now you've got a probation violation and a new case, which could be in completely different states, right? You're on probation out of state A, you travel to state B, commit a crime, and State B. State B charges you with a crime state. A finds out about it and says, Hey, you violated probation. Now you've got a probation violation going and a new case. So you got to really work to coordinate this stuff and these get a little tricky sometimes.
Andy Marcantel
There are lots of ways one could be alleged to have violated probation other than just getting a new crime, not abiding by all the terms. Maybe a violated curfew. Maybe you were supposed to drop a urinalysis and you dropped a dirty ua. I mean, there's tons of different,
Mark J. Victor
And especially in the case where there's two crimes, you got to be very careful because if you try the first one and the defendant gets on the stand and make statements, guess what's going to be admissible in the second one? Those statements. So you got to be very careful and coordinate those. And it's just a matter, we've done lots of these. You really got to be flexible because different prosecutors have different attitudes about things and hopefully you can get people on the same page and coordinate so you get the best result for the client.
Andy Marcantel
And just to be clear and allegation of a probation violation is just that. It's an allegation. You're presumed innocent. You have your right to due process, you have a right to a hearing or several hearings on that. You have a right to present evidence to try to demonstrate to the court that you did not violate probation and your attorney has a right to be heard on, even if you violated probation, what the outcome of that probation violation can be. And it can be as lenient as no additional outcome other than simple reinstatement on probation or in a worst case scenario, could involve you getting revoked from probation and put into prison. There's a whole lot of stuff in between as well. So also really important to have a good attorney on your probation violation matter as well as your new crime. Whenever somebody comes in and sits down with me and we're doing a strategy session and they mentioned to me, yeah, Andy, I was on probation at the time this new offense happened. I always explain it to 'em by saying, look, you should treat it as two separate cases. You are coming to me right now asking for me for my help with two separate cases because they're going to be usually in different courts, follow different rules, different standards, there'll be different hearings involved,
Mark J. Victor
Different
Andy Marcantel
Burdens of proof too. Different burdens of proof. And so it's very, very, very important to coordinate and make sure everything happens in a coordinated way. You don't want to generate priors for yourself. You don't want to get a great result on the new active criminal case and then just get screwed on the backend with your probation
Mark J. Victor
Violation. You could try both and be acquitted on the new crime because they can't prove it beyond a reasonable doubt and convicted of the probation violation of doing that very thing because it's a lower standard of proof. So, yeah.
Andy Marcantel
Yeah, absolutely. Okay. Well that was quite a video and I think we didn't keep
Mark J. Victor
It to 10 minutes like we were
Andy Marcantel
Planning. We didn't keep it to 10 minutes, but in our defense, we could have gone way longer than this. Yeah, that's true. I think we did a nice job today of the 30,000 foot view hitting all the major parts of the flow of a case without going too deep into each one, and I'm really looking forward to the upcoming video so we can do a deep dive into each one of these parts. Any final thoughts today, mark?
Mark J. Victor
I just can't imagine how valuable this series would be for somebody who's actually fighting a criminal charge right now, just to sit back and have a good understanding of how a criminal case flows, especially with the other videos that we're doing. I mean, we're putting a lot out here for people who are interested in criminal law and how these cases flow. That's what this series is about.
Andy Marcantel
Absolutely. Alright guys. Thank you very much for tuning in today to our newest episode of Fighting the State. Make sure to go and check out attorneys on retainer us to learn all about our self-defense program and what it can do for you. If you'd like to learn more about our law firm, go to attorneys for freedom.com. Make sure to like this video, subscribe to the channel, and leave us a comment down below. Until next time, this has been Attorney Andy Marcantel and attorney Mark J. Victor. Peace.
YouTube Video Link: https://www.youtube.com/watch?v=Aaqt4nqqJeA
Credit: Attorneys On Retainer