4 Criminal Defense Questions

Were you recently arrested and have questions? Check out these 4 criminal defense questions for guidance, then call our office in Phoenix to get started.

1. What is a criminal preliminary hearing?

4 Criminal Defense QuestionsA preliminary hearing, in the courts of Arizona and in the federal courts and in most jurisdictions across the country, is what we call a probable cause hearing, in other words. It’s an abbreviated hearing. It’s almost like a mini-trial where the prosecutor presents evidence to the court to prove to the court that they have probable cause to proceed on the charges. Again, this is different from the trial itself. At a preliminary hearing, the prosecutor is not under the burden of proving all of the elements of the crime beyond a reasonable doubt as they will be in the trial; this is just a probable cause hearing to determine if this prosecutor, the state or the United States attorney, whoever it is, has enough evidence to proceed on the charges that have been filed against you.

At a preliminary hearing, there are witnesses that are called. The defense attorney gets to cross examine the witnesses. This is not in front of a jury. It’s in front of a judge, and the judge will make a determination or a finding that there is probable cause to believe that a crime was committed and that the person that’s being charged with the crime, the defendant, was likely the one that committed the crime and that the prosecutor can go forward with the trial to prove his case. Or, the judge will hold a finding that there is not enough evidence to prove that a crime was committed and this particular defendant was the one who committed it. A probable cause hearing is a mini-trial. It’s a very abbreviated thing.

Here in Maricopa County particularly we don’t see a whole lot of preliminary hearings because here in Arizona, they prefer to go to the grand journey. A lot of drug cases will get preliminary hearings, and so it’s something that you should be prepared for. You need to talk with your lawyer about these issues way in advance because if you can get a favorable probable cause finding, then that case gets chucked out early on and you don’t have to endure the rigors of going through a complete criminal trial. You want to talk to your lawyer. Get a good lawyer if you have a preliminary hearing scheduled so that they can prepare for that because that is an opportunity to get rid of the charges. Call our office. Call a competent lawyer. We’d be more than willing to talk to you about this preliminary hearing that you have set.

2. What happens at the criminal arraignment?

There are several steps that happen in the process of a criminal case proceeding through the court system, and they’re broadly the same whether it’s in federal court or whether it’s in state court, tribal court or one of the municipal justice courts here in the state of Arizona. All that is after you are charged with charges, of course, which happens through a grand jury indictment or through a direct complaint form, as we say, that’s filed with the court.

The next step in the process is either an initial appearance or an arraignment. According to the rules of criminal procedure here in Arizona, that must be done within 48 hours of a warrantless arrest. Within 48 hours, there has to be some type of initial appearance or arraignment. This is the first time you come before the judge. They let you know what you’re being charged with. At that point, you get to enter a plea of guilty or not guilty. Generally, at that time – and again, it depends. It can work different ways depending on how you were arrested, if you’re in custody, if you’re not in custody.

There are some factors that play into it, but virtually, you get to enter your plea of guilty or not guilty. Sometimes there’s an initial plea offer, an early plea, that the prosecutor will offer you, and if none of those things are successful, if the initial plea is not one that you’re going to take virtually you’re apprised of your charges. They set release conditions on you— whether you’re going to be released to your own recognizance or you’re going to be released to pretrial services on an ankle monitor or if you’re going to be remanded into custody and held until you pay a bond, be it a cash bond or some type of bail, or if you’re on one of those – get charged with something that’s not bailable as a matter of right. Then you would sit in custody and be transferred to one of the jails if you’re not already in custody. A number of things can happen, but largely, you’re advised of your charges, you enter your plea, and then there’s other court date that are set out after that.

Get your lawyer involved early. If you know you’re going to go with private counsel, get them involved early because there are things that they can do to make sure that you have the best possible outcome as relates to your criminal matter. Call a lawyer early. Call our office. We want to get in on it early so we can get the best possible outcome for you.

3. What if the prosecution is withholding evidence?

We get a number of questions here in our office in Phoenix from our criminal clients particularly about the possibility of prosecutors withholding evidence or not turning the evidence over to them or to their public defender or to their current counsel. Plainly put, that’s a violation of one’s constitutional rights. Back in 1963, there was a case called Brady vs. Maryland, and in that case Justice William Orville Douglas wrote the opinion for the court saying that suppression by the prosecution of evidence favorable to an accused person upon request violates due process where the evidence is either material to guilt or to innocence or to punishment, irrespective of whether the information was held in good faith or bad faith.

To that point, if the prosecution has evidence, and it’s material to your guilt or to your punishment, they have an obligation under the due process clause of the constitution to turn that evidence over to you. We get a number of calls from defendants and from their family members that feel like the state hasn’t – or the federal government if it’s a federal case – turned over all of the evidence. Some of that evidence may be exculpatory, and so it’s important that you get all of the evidence in your hands so that an adequate defense can be presented to you.

A knowledgeable attorney will request everything. They’ll first send a preservation letter to whoever has the evidence telling them don’t destroy this evidence because it could get – it could lean into your innocence. They’ll also request everything from the police department, notes between the officers, handwritten notes, all of the police reports, text messages, social media posts. There are a myriad of things that could be requested and that should be requested that may be what we call Brady materials that could be exculpatory to you, and you have a right to this information under the constitution.

If you’re interested in this area because of a family member or for yourself, I urge you to give our office a call. We can help you with that matter whether your case is in federal court or state court or one of the municipal courts. Give us a call. We’ll go over this with you. These are things that should’ve been gone over with your attorney. If you’re self-represented, please call an attorney. Don’t let the opportunity pass you by because there will come a point in the case where if you don’t have the material, you can’t use it, and so we urge you to give our office a call. A knowledgeable attorney will be able to help you with getting this evidence that is exculpatory to you.

4. What can I do to get a better plea deal or lesser sentence?

One thing that’s always required regarding criminal cases, and that every attorney is literally duty bound to do so, is to really make an accurate and an honest assessment, have a genuine conversation with a defendant regarding the exposure of the case and what the potential outcomes could be. There will be plea deals in most cases that will be offered by the state, by the prosecution, the government, whether you’re at the federal level, the state level, tribal, municipal level. There’ll be plea deals that’ll be offered, or at some point, it could be that the case has been tried or the person has pled guilt on some charge, and then you have to go before the judge for sentencing.

What can you do to get a better plea deal, or what can you do to get the lesser sentence? These are what we call in the legal field either mitigations as it relates to sentences or deviations as it relates to plea offers that are given by a prosecutor, again, mitigations or deviations Let’s talk about deviations briefly first. Deviation is a request that’s sent to a prosecutor to request that the state deviate from a suggested plea or an offered plea or oftentimes to deviate from charges that have been filed against a potential defendant. We submit a deviation request to that prosecutor saying hey, we think based on what we see with the evidence and about this particular person that you’re charging that maybe you shouldn’t be that harsh. Maybe you should deviate, and we’re asking that you consider this.

On the other hand, if you get to a sentencing with a judge and you’ve already been convicted either because of trial or you’ve pled guilty to something, then you want to submit evidence to the judge asking the judge to mitigate the sentence. Again, like in Arizona, there’s a presumptive sentence, and you can request the judge mitigate the sentence or ask for the minimum sentence. You want to submit evidence, facts, testimonial evidence from family members, letters and whatnot so that the sentence is mitigated and not aggravated where they add more time to it.

What we do with our clients is we sit down and we have a huge packet of information that we fill out with them. We call it a mitigation deviation questionnaire. Cooperate with the attorney. We gather information about your family history, your educational history, your work history, any gang affiliation in the past, drug usage or alcohol usage, your love, your social relationships, your children, your mental health history, your medical history, how you did in high school, what are your future plans, etc.

We pile all of this stuff together, we give this information in a comprehensive manner to the judge or the prosecutor, and we request that they either deviate from those charges or lessen that plea. If we’re at a sentencing hearing we say to the judge, “Your honor, we know what the prosecutor’s recommending, but we think that the sentence should be mitigated and a lesser sentence should be given.” It’s important that you and your family cooperate with your attorney. Be very vocal about it, and be very honest about it, so that these sentences could be potentially mitigated or a deviation from the requested plea offer. Talk with you attorney. Call our office. We’ll go through the process with you so we’ll see if we can get the best possible outcome for you, for your family.


Have you or a loved one been involved in a criminal defense case and have questions? After reading these 4 criminal defense questions, contact experienced Phoenix Criminal Defense Attorneys at Smith & Green today for a legal consultation.

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