Upon arrest, a defendant is normally taken through a preliminary hearing according to the provisions of statutory instrument number 725 ILCS 5/110-5. This is a critical step for the defense lawyers because that is when a finding of probable cause is considered. It can be undertaken by either a judge in chambers or the grand jury. The litmus test is the preponderance of evidence. This evidence is adduced through testimony and some limited cross examination by the prosecutor. Defending attorneys sometimes complain that this stage of proceedings is so obviously dominated by the prosecutor that they can literally set the agenda from the word go.
The finding of a probable cause then leads to the arraignment and assignment. The rules and practice in Chicago is to take no more than two weeks after the preliminary hearing or grand jury indictment. The presiding judge first assigns the defendant his trial judge. This is the senior judicial officer that will hear the case right through the determination of innocence/guilt, including the consequent punishment phase. The reason for using one judge are rooted in the need to ensure consistency and fairness. In any case, it is expected that the trial judge will have an intimate knowledge of the case which might become critical when handling matters of appeal.
Advice from Seasoned Attorneys
Based on the experience in the courtrooms so far, it is not uncommon for the defending attorney to advise a client to enter a not guilty/guilty plea or alternatively waive the formal reading of charges. The attorney is also required to make an oral motion for discovery. This is an opportunity for the defending attorneys to carefully assess not only the evidence that the prosecutor has, but also the means through which such evidence was obtained. Both of those elements can be subject to a lot of contestation, which may actually determine the case. It is therefore imperative that the defending attorney is given a copy of the complaint at the arraignment. If the or she can get it earlier, it is all the better for the defendant.
Remember that the attorneys merely speak and act on behalf of the client. If the client is determined to go against the advice that is given by the attorney, then that is his or her right. In the worst case scenario, the attorney will withdraw to avoid professional embarrassment. When the plea is recorded, the judge will set a continuance date. This is the time at which the status is reviewed. It is important to note that misdemeanors do not require an arraignment. However, for felonies, the status review is imperative.
What Happens at the Status Review?
The defendant is required to attend and it is the duty of all court officers (including defense attorneys) to ensure that this happens. The state attorney is required to give the court an update on how the case is progressing as well as issues relating to discovery. It is the right of the defendant to bring any pertinent matters to the court for consideration including application for release under the Bail Statutes. In the most serious cases, the status review will take a very long time. The judge may later consider this as time served when handing down an appropriate sentence. In some cases, the defendant is offered a plea bargain or deferred prosecution depending on the facts of the case.
The court is well aware of the possibilities of abuse of the defendant’s constitutional rights. Therefore, certain time limits have been set for specific processes within the criminal case procedure. For example, defendants cannot be held for 48 hours without being taken to court regardless of whether it is a weekend or holiday day. However, for misdemeanors the arresting officers have a discretion to give the defendant a date to appear rather than keeping them in the cells. If you need help with your arraignment, you need an expert lawyer who will take care of your case. Call David Freidberg, Attorney at Law at 312-560-7100 now.