Criminal Process


Understand Your Rights

Being arrested and charged with a crime can leave you feeling confused, scared, and concerned about your future.

However, it is important to realize that United States citizens facing criminal charges maintain a series of rights that protect them. Understanding the criminal process and your rights can help you and your loved ones make the best decisions through each stage of a sometimes-lengthy process.  As a defendant, you need to make informed choices that impact your freedom and future.

Though the complexity and duration of each individual case varies upon the specific facts and circumstances involved, every criminal prosecution in the Commonwealth of Pennsylvania will generally involve the following:

In many cases, an arrest – with or without a warrant – or the filing of a criminal complaint will initiate the criminal proceedings in a court case. In cases involving misdemeanor offenses, the police may initiate a criminal proceeding against a person by serving a complaint and summons via mail rather than a formal arrest. The summons will direct the individual to appear for a preliminary hearing at a specific time and place.

During an arrest, a member of law enforcement takes the accused into custody. Once in custody, the individual is typically processed or “booked.” At that point, information about the individual and the reason for the arrest is recorded. Please be aware and consider that everything said to the police by an arrestee will be considered a statement and can be used against them by the Commonwealth to secure a conviction. Palissery Law Offices strongly recommends the arrestee to remain silent and request an attorney.

Process may also include fingerprinting, a mug shot, a body search, and the confiscation of personal items. If the arrest is a result of minor charges, the accused may be released and summoned to return to court at a later date. In other cases, the individual will be held until preliminary arraignment after which they may be released on bail.

For an arrest to be considered legal, one of the following must take place:

  • The arresting officer personally observes the suspect committing a crime.
  • An officer has probable cause to make an arrest
  • A warrant for the arrest has been issued.

The United States and Pennsylvania Constitutions provide individuals with a series of protective rights that must be afforded by all law enforcement personnel. These rights include protections against unlawful searches and seizures, the right against self-incrimination , the right to an attorney, due process of law, and other important rights. For instance, if an arrest results in an interrogation, whether on-spot or at a police station, the arresting officer is required to read the accused their Miranda rights.

If an individual is charged with a crime, the next step is a preliminary arraignment. The preliminary arraignment takes place in front of a magisterial district judge and typically happens shortly after an arrest — usually within a few hours or sometimes after being held overnight. At this time, the judge will provide the accused with information regarding the charges filed, their right to counsel, and the criminal complaint and probable cause that lead to the arrest. The judge must also set bail and provide a preliminary hearing date.

A preliminary hearing must be scheduled to take place within three to ten days after an arrest unless it is postponed or continued. During the preliminary hearing, the judge determines whether there is a sufficient amount of evidence to hold the case for a trial in the Court of Common Pleas. A preliminary hearing does not result in a “guilty” or “not guilty” verdict.

A preliminary hearing acts as a screening process to filter out the cases with no evidence from the cases with enough evidence to let a jury render a verdict. If the judge determines that there is not enough evidence or probable cause to proceed, then the case is dismissed. Otherwise, the criminal process will continue. At the conclusion of the hearing, the court may dismiss one or more of the charges. In addition, the attorneys at Palissery Law Offices, may be able to negotiate an arrangement where the Commonwealth agrees to withdraw one or more of the charges filed without the need for a hearing.

A dispositional hearing or pre-trial conference is a formal activity that takes place two to three months before the actual trial. During the conference and/or hearing, the prosecution, defendant, defense attorney, and the court discuss the case status, evidentiary issues, discuss any pre-trial motions, and the intended method of case disposition – jury trial or guilty plea.  This is also a time when parties can discuss and accept guilty plea agreements, enter a plea, or maintain a “not guilty” plea and move forward with trial.

Defendants reserve the right to plead guilty and forego the criminal trial. In some cases, a guilty plea is a result of a plea agreement or plea bargain. In certain cases, the defense attorney and prosecution agree to a recommended sentence, which must be approved by a judge. Oftentimes, a guilty plea may be the better option given the quality and strength of the Commonwealth’s case against the defendant and a guilty plea will result in a reduced penalty than following a guilty verdict at trial.

Defendants can also plead guilty in the absence of a plea agreement, which may occur when the prosecution and the defense cannot reach an agreement. In doing so, the defendant forgoes the criminal trial and must appear before a judge for sentencing.

The trial phase is a time when the judge and/or jury listen to both the defense and the prosecution as they make their opening and closing arguments, present evidence, and call upon witnesses. Under the criminal justice system, a defendant does not have the obligation to prove their innocence nor present any evidence in his or her defense. The Commonwealth has the entire burden of proof to establish each of the charges contained in the criminal information.

Furthermore, the evidence presented by the Commonwealth must rise to the level of proof beyond a reasonable doubt, which is the highest standard or level of proof in the justice system.

There are two primary trial types: a bench trial and a jury trial. In a bench trial, the judge is solely tasked with hearing, analyzing, and reaching a verdict based on the evidence provided.

In a jury trial, jurors, who are selected by defense and prosecution attorneys, are responsible for the verdict. At the close of the trial, the court will instruct the jury on how to evaluate the case and the 12 jurors will discuss the evidence behind closed doors until arriving at a unanimous verdict. Every member of the jury must agree on a verdict of guilty or not guilty for each charge.

If a defendant is convicted of a crime, whether it be the result of a plea agreement or trial, the next step is sentencing. During the sentencing hearing, the judge will either agree to the negotiated or recommended sentence by the parties or impose a sentence the court feels is appropriate. In PA, the court is guided by suggested sentencing ranges for each individual charge at issue. These sentencing ranges or guidelines are based upon the severity of the current offense or crime and the criminal history of the defendant. Additionally, the court will consider various other circumstances and evidence in order to impose a fair sentence. This may include the defendant’s personal circumstances, testimony, and acceptance of responsibility.

After sentencing, a convicted individual maintains the right to file post-sentence motions. To do so, the individual must file the proper paperwork within a designated time-frame, typically ten days after sentencing. The convicted can file post-sentence motions as an effort to challenge the validity of a guilty plea, request for a new trial, challenge the evidence presented during the trial (judgment of acquittal), claim that the verdict was made in error (arrest of judgment), or to request a modified sentence.

If the court denies a post-sentence motion, or if the convicted individual wishes to have any appellate issues reviewed by a higher court, an appeal to that Court may be filed. Under PA law, the defendant must file an appeal within thirty days of sentencing unless post-sentence motions are outstanding, in which case any appeal must be filed within 30 days of the resolution of the post-sentence motion. Several grounds may exist for appeal, especially if defendant was found guilty after trial. Appellate rights are limited in the case of a guilty plea. It is important to have an attorney who knows the appellate process representing you at this very crucial point.

Probation and parole both allow the convicted to serve all or part of their sentence outside of incarceration. Probation takes place before or in place of time served in prison. Parole, on the other hand, takes place when an individual has been released from prison early. In both cases, the individual must adhere to the specific rules and guidelines as set forth by the courts. This may include curfews, required rehabilitation programs, fines and restitution, systematic or random drug testing, and geographical restrictions. Failure to comply with the terms of probation or parole can result in further incarceration.

This information outlines the general criminal process, but many factors can alter the sequence of events. If you or a loved one has been arrested and charged with a crime in Luzerne County, Pennsylvania, you must understand your rights and prepare for each stage of the criminal process.

Palissery Law Office’s Criminal Defense Lawyers can help you navigate the court system and provide the legal counsel you need to ensure a fair trial. Contact us today so that we can help you navigate the criminal process and work towards a favorable outcome.