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Explaining the Criminal Process: A Three-Part Series

The criminal process is a complex, multi-step process designed to find justice while protecting the rights of both the accused and the victims. Over the next few months, Kearns Rotolo Law will present a three-part series explaining the various steps involved in this process. This month in Part 1 we explore the arrest, the charges, and the detention hearing.

The Criminal Process Part 1

The Criminal Process - Part 1: The Arrest; suspect with hands behind his back being handcuffedThe Arrest

An arrest occurs the moment police take a suspect into custody and that suspect is no longer free to leave of their own accord. At this time, the arresting officer is required to read the suspect their Miranda Rights. Those rights include the right to remain silent, that anything you say can and will be used against you in court, the right to an attorney, and to have that attorney present during any questioning.

Under the circumstances, it may be human nature for a suspect to want to explain their side of events. Those facing criminal charges are strongly urged to exercise their right to remain silent because whatever is said can and will be used against them in court.

Exercising the right to have an attorney present either before and/or during questioning is also an important step for any suspect. Those who cannot afford to retain an attorney have the right to have one appointed to them. Once the right to an attorney is exercised, police questioning stops until the attorney is present and made available to the suspect.

Remember, anything discussed with your attorney is protected by client/attorney privilege.

The Charges

Upon arrest, the suspect is informed by police of the charges against him or her. The suspect’s personal information is gathered; they are fingerprinted, photographed, and formally processed. These charges are documented in a document called the complaint.

It should be noted that the charges stated at this time are subject to change as additional evidence is uncovered during the pre-trial investigation.

The First Appearance

After the issuance of the complaint, a first appearance is scheduled. If an individual is charged on a summons complaint, they are released after processing and provided with a first appearance date. If an individual is charged on a warrant complaint, they are transported to the local county jail pending their first appearance. In New Jersey, the first appearance must occur within 48 hours of the arrest for an individual who is charged on a warrant complaint.

At the first appearance, the court reads the defendant his or her rights, confirms whether the defendant has been served with the complaint, ascertains the defendant’s status as to legal representation, and determines whether the suspect will be released with certain conditions or subject to a pre-trial detention hearing in the event the Prosecutor files a motion for pre-trial detention.

The Pre-Trial Detention Hearing

If the Prosecutor files a motion for pre-trial detention, the defendant remains incarcerated pending the hearing, which is scheduled within three business days of the first appearance. A pre-trial detention hearing provides both the prosecutor and the defense attorney the opportunity to argue before the court whether the defendant should be detained (i.e., remain in custody) or released pending trial with certain conditions. New Jersey’s pre-trial release system has transformed into a risk-based system from a monetary resource-based system (formally determined by monetary bail).

At the pre-trial detention hearing, the court weighs several individualized risk factors to determine whether the defendant will be released or detained. Such factors include the nature and circumstances of the charges, the weight of evidence collected to date, the defendant’s criminal history, the defendant’s ties to the community, and the defendant’s history of failing to appear in court, as well as the defendant’s health, character, and other history.

Next month, The Criminal Process, Part 2 will explore The Grand Jury, The Arraignment, and Pretrial Proceedings & Motions.

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