WHAT HAPPENS IN COURT

CRIMINAL PROCEDURE

Most people are only familiar with criminal cases through television and movies. However, those depictions of events in criminal cases - from arrest, to interrogation, and through trial - are not true to real-life criminal procedure. Following are general descriptions of some phases of a criminal prosecution. 

INITIAL APPEARANCE

This is the first hearing in any criminal case, whether misdemeanor or felony. The purpose of this hearing is to ensure that the accused knows what he is charged with, what the maximum possible penalties under the law are, and that he has the right to have an attorney. This is also the hearing where bail is set by the court. This is also the first opportunity to challenge the criminal complaint, or charging document, for a lack of evidence, and asking that the case be dismissed.

BAIL / BOND

The purpose of bail is to ensure that the accused will appear in court for all hearings and follow court orders. This can an amount of money that must be posted in full (not 10% or through a bail bondsman, like in other states) to secure the accused's release, or a signature bond, which is a promise to pay an amount of money if the accused fails to appear in court. Lastly there is also a personal recognizance bond, where one is released without even a promise of money if bond is violated. For most cases that are less serious in nature, signature bonds and personal recognizance bonds are ordered unless the accused has an aggravated prior record. In violent felony cases or cases where the accused has an aggravated prior criminal record, cash bond can be ordered and is supposed to be set in an amount not more than necessary to ensure appearance at future hearings. 

Judges can also order conditions of bond for the purpose of protecting the community or preventing the intimidation of witnesses. These are typically reasonably related to the offense charged, for example, no possession of illegal drugs in a drug case, no contact with the alleged victim in a battery case, etc. 

Lawyers can request that the court change the bond to a lower cash amount or to change a condition of the bond; those decision are made at a bail motion hearing. Generally, if the accused appears in court and has no new law violations, the money will be returned to the person who posted it at the conclusion of the case. However, any fines and court costs will typically be taken from those funds and the balance returned. 

PRELIMINARY HEARING

In felony cases, the accused has the right to a preliminary hearing where the state must provide evidence to satisfy the court that the accused probably committed a felony offense, also known as probable cause. The purpose is for the court to determine whether there is sufficient evidence for the prosecution to move forward, resulting in bindover (the case continuing), dismissal, or reduction of charges.

The accused can choose to have a hearing where the state will present witness testimony to attempt to establish probable cause, and the accused through their lawyer has the opportunity to cross-examine testimony that witness(es) offered. Often times, good lawyers are able to ask questions that elicit new evidence or information that can become the basis for trial strategy or fighting the case. This is not the same as a trial because the state has a lower burden of proof (probable cause vs. proof beyond a reasonable doubt), and hearsay is admissible in a preliminary hearing. Alternatively, the accused can waive or give up the preliminary hearing, agreeing that the case can move forward and without giving up his right to a jury trial later. 

SCHEDULING CONFERENCE / PRETRIAL / STATUS

Depending on what Wisconsin county a case is in, these are all names for a court hearing where an accused or their lawyer can talk to the district attorney, appear before the judge, and tell the court what direction the case is headed in - either for resolution or trial. Often times, there are several of these hearings between the initial appearance and the disposition. Good lawyers use these hearings to accomplish a number of things, including investigation updates with the prosecutor, continued negotiation, letting the judge know that their client is doing well on bail, or floating trial balloons. 

MOTION HEARINGS

These are hearings where either side - prosecution/state or defense - is requesting an order from the court. That request to the court, or motion, can deal with a variety of issues, from bail modifications to illegal police actions such as an unconstitutional search or seizure, to what evidence can be admitted against an accused at trial. Motion hearings can be evidentiary, where witnesses testify in front of the judge on the issue at hand, or non-evidentiary, where the lawyers argue about these issues. Judges can issue orders at the motion hearing, or a written decision at a later date. 

FINAL PRETRIAL

When a case is scheduled for trial, a final pretrial is always scheduled so that the parties can raise any legal challenges or issues that may arise during trial, such as preventing certain evidence from being introduced at trial or deciding the number of prior criminal convictions that a witness has. This is also typically the last opportunity to resolve the case without having a trial. 

TRIAL

If the parties cannot agree on how to resolve the case through plea agreement, or if a dismissal is not obtained through other means before trial (like a motion to suppress evidence), then there is a trial. Trials are generally for the purpose of resolving factual disputes, meaning the state says that something happened and the accused says no it did not or you cannot prove it. A trial can be had to a judge or a jury of 12 citizens from the community who have to agree 100% that the accused is either guilty or not guilty. Experience is everything at a trial. They are never easy, but lawyers who have been there before are generally a lot more comfortable in the courtroom during contested jury trials, which can last days or weeks. 

SENTENCING

If someone is found guilty of a crime, either after a trial or through a plea agreement, there is a hearing in front of the judge for the purpose of deciding what sentence should be imposed. Generally, the three options available to the judge are incarceration in the form of county jail (less than one year) or state prison (more than one year), fines, or probation. Sentencing is one of the most common hearings in criminal law, and often the most overlooked. The opportunities for creative advocacy and getting an accused person to a place where they can put a criminal case behind them are limitless.