BETWEEN ARREST & ARRAIGNMENT
THE CRITICAL STAGE OF THE PROCEEDINGS
Probably the most important time to have legal representation is immediately after one is arrested. Actually , the best time for representation is before one is arrested but obviously that is not practical ( unless you are aware that you are the subject of a pending investigation ) .
Once one is arrested and in police custody , an attorney can provide and achieve the following essential services and results that , if not provided , can immediately result in the acquisition of additional evidence against you :
1) Notification to the law enforcement agency ( state or federal authorities ) that the person arrested is in fact represented by counsel and should not be questioned without counsel being present ;
2) Notification that counsel wishes to be present at any identification procedure sought to be conducted such as a lineup
3) Ensuring that the person arrested is brought before a judge and arraigned in a timely fashion . Again , an attorney can notify the District Attorney’s Office that the client is represented by counsel and should not be interrogated . In the event that a person has not been arraigned in a timely fashion ( generally within 24 hours from the time of arrest ) , counsel can facilitate the arraignment by filing a Writ of Habeas Corpus in Court ( which will usually prompt and expedite the paperwork involved in setting up the arraignment ) .
The person under arrest (or his family or friends ) who sits back to “wait and see†what happens when he goes to court does so at their own peril . During this critical time period and by the time he or she sees the judge at arraignment , the case against them could get tremendously stronger . This will , unfortunately , impact upon the judge’s decision on whether or not the person should be released with or without bail having to be posted , the amount and type of bail needed to be posted and , most importantly , the leverage counsel has in the subsequent negotiations with the District Attorney’s Office during any plea bargaining discussions ( if that option is desired ) .
BETWEEN ARRAIGNMENT AND THE FIRST COURT APPEARANCE
Here again, the intervention of experienced counsel is extremely important to assess the nature of the evidence against their client and the strength or weakness of the prosecution’s case . Additionally , if not done so already , proactive investigation should be conducted as soon as possible with respect to any available or potential defenses , witnesses , documentation , videos , etc.
Too often, such available evidence and witnesses are lost due to the passage of time . Witnesses’ memories ( especially alibi witnesses ) fade and become less reliable over time .
Prior to the first court appearance after the arraignment , counsel can ascertain which prosecutor has been assigned to the case and request a conference ( telephone or personal ) with such person to discuss the strengths and weaknesses of a case as well as the possibility of an early resolution .
Too often, no such discussions occur prior to the first (or even second) appearance in court after arraignment and unnecessary adjournments ( especially where a client is incarcerated ) occur with additional waivers of 180.80 and speedy trial rights .
Sometimes, it can be a waste of time to engage in extended conferencing of a case if the offer made by the prosecutor is conditioned upon the acceptance of a sentence that is substantially higher than the minimum sentence required by the particular statute or level of crime . In such cases , it might be strategically sounder not to accept any such offer and allow the case to proceed to the Grand Jury and Indictment and Supreme Court where defense counsel can negotiate directly with a Supreme Court Justice ( who is not bound by the prosecutor’s recommendation as to the sentence ) .
Additionally , sometimes counsel can convince a prosecutor in a felony case that , even though the client wishes to fight the case , the case does not merit prosecution on the felony level and should be reduced to the misdemeanor level and referred to the Criminal Court for continued prosecution
THE ARRAIGNMENT
The purpose of the arraignment is to have a judicial officer review the allegations made against the accused , advise him or her of the precise nature of the charges and make a determination as to whether or not a person should be released pending disposition of the case , and if so , under what conditions ( i.e., bail , order of protection , etc. )
Here again, experienced counsel will know what factors are considered by the court in making such a determination , which factors should be highlighted and which ones should be ignored , explained , downgraded or mitigated .
More importantly, an attorney who is involved at this early stage can do some preliminary investigation to ferret out the weaknesses of the prosecution’s case and incorporate these arguments into any bail application .
Another important function that experienced counsel will provide at arraignment is to advise the client that is charged with a felony whether or not to temporarily waive his or her rights to a speedy Grand Jury presentation and speedy trial .
Normally, one arrested for a felony who remains incarcerated after the arraignment has the right to have the case presented to a Grand Jury within six days from his or her arrest . If no Grand Jury presentation and Indictment is voted within such time period , the person is entitled to be released on his or her own recognizance pending future proceedings .
However, some District Attorney Offices ( including Queens County ) have a policy that once an Indictment is voted , there will be no future plea bargaining and there will be no offers to anything less than the top count of the Indictment ( which often carries substantially increased or mandatory jail time upon conviction ) .
Experience counsel will be able to properly advise their client whether or not it is strategically sound to waive 180.80 and speedy trial rights . Many factors enter into such determination such as preserving potential future plea bargaining options , being allowed more time to investigate potential defenses to and weaknesses in the prosecution’s case and / or to negotiate a favorable disposition , whether or not their client can post bail if not ordered to be released at arraignment , etc. The point is that this important decision needs to be considered and made at the time of the arraignment
THE GRAND JURY
The stated purpose of the Grand Jury is to have a neutral body of jurors hear and review the evidence submitted to it to see if it is enough to warrant an Indictment and allow the prosecutor to go to trial with felony charges .
The Grand Jury proceedings are generally one-sided in favor of the prosecution . Their witnesses will normally testify without being confronted with cross-examination while defense witnesses are often subject to cross-examination with a confrontational tone and by a prosecutor bent on having the Grand Jurors disbelieve them . Despite this , in certain cases , it is sometimes a good strategy to have a client ( or defense witnesses) testify in the Grand Jury .
Here again , experienced counsel will weigh and balance many different factors in making any recommendation to the client who contemplates putting forth a defense to the charges in the Grand Jury . Many times , it is strategically better not to have the client testify in the Grand Jury and preserve the right to put forth a stronger defense at the ultimate trial . At such point ( the trial) , counsel will have had a better opportunity ( through investigation , discovery and pre-trial proceedings ) to ascertain the strength and nuances in the prosecution’s case and be better prepared to address the allegations on a more even turf where prosecution witnesses are subject to cross-examination and the prosecutor has the burden of proof beyond a reasonable doubt .
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