An overview of Law & Justice in the 16^th Judicial District

X. Instituting Criminal Prosecutions

What happens when the District Attorney formally charges a person by Bill of Information or the Grand Jury returns a True Bill indictment formally charging a person with a crime?

Arraignment of the Defendant

Once the defendant is formally charged, he/she is notified to appear in court to determine how he/she will answer to the charges. This process is called the arraignment which consists of the reading of the indictment or bill of information to the defendant in open court and the defendant entering a plea to the charges.

What type of plea may a defendant enter at his arraignment?

There are four kinds of pleas to the indictment or bill of information at the arraginment?

1) Guilty

2) Not Guilty

3) Not Guilty and not guilty by reason on insanity, or

4) Nolo Contendere (no contest)

What happens when a defendant enters a Not Guilty plea at arraignment?

After a defendant pleads not guilty at arraignment, the District Attorney requests the court to set several court dates to handle the following procedures:

1) Trial date

2) Status Conference Date (This conference is designed to allow the attorneys to review different aspects of the case, discuss the evidence, and potential resolution of the case prior to the trial date).

3) Pretrial Motion Date

Pre-Trial Motions may consist of the following:

Motion for Discovery - This allows the defendant to obtain information which the District Attorney possesses for use as evidence in the trial, such as documents, photographs, copies of the defendant's statements and other information to allow a defendant to present a defense.

Motion for Bill of Particulars - This requires the District Attorney to provide specific information about dates, times, places, specific provisions of a statute being used in a case and other information designed to tell the defendant about the exact nature of the charges against him.

Motion to Suppress - This is a motion filed by a defendant which attempts to prevent certain evidence obtained during an investigation from being admitted at trial. Evidence which a defendant would attempt to exclude may include physical evidence linking the defendant to the crime, an identification of defendant by a victim or witness, or a confession by the defendant.

Motion in Limine - This is a motion which may be filed by either the defendant or by the District Attorney and is designed to limit the use of certain evidence at the trial.

Motion for Change of Venue - This motion may be filed by either the defendant or by the District Attorney and is designed to move the location of where the trial is to take place to another parish. A change of Venue shall be granted when the Judge determines that by reason of prejudice existing in the public's mind, undue influence or that for any other reason a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

Note: A change of venue is granted in most instances as a result of the notoriety of the case or because there is to much pre-trial publicity.

Motion to Determine the Defendant's Mental Capacity to Proceed - A defendant's mental capacity to proceed may be raised at any time by the defense, the district attorney, or the court. Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

The court shall order a mental examination of a defendant when it has reasonable grounds to doubt the defendant's mental capacity to proceed.

The proceedings against the defendant are stayed until a sanity commission (Coroner, physician, psychiatrist, psychologist) has examined the defendant and the court, based on the sanity commission report, determines the defendant has the mental capacity to proceed.

Note: This motion is not the same as pleading not guilty by reason of insanity, which addresses the insanity of the defendant at the time of the commission of the offense and requires the defendant to show he was unable to understand the difference between right and wrong at the time he committed the crime.

Motion to Recuse the Judge - This motion may be filed by either the defendant, the District Attorney or on a judge's own motion and is designed to remove a judge from hearing a particular case. The law sets out specific grounds for a recusal, including the general ground that the judge would be unable to conduct a fair and impartial trial.

Motion for a Speedy Trial - This motion may be filed by either the defendant or the District Attorney. This motion requires a case to be tried within a certain time period depending on whether the defendant is being held in custody or is out of jail on bail.

Note: There are other motions which may be filed by both the state and defendant. This list is simply designed to show those motions most frequently filed in criminal cases on a local level.

4) Pretrial Conference Date

At this conference, the District Attorney, defense attorney, the defendant, and the trial judge (The victim may also be present) have a hearing to determine several things.

A. Whether all pretrial motions have been heard and disposed of

B. Are there any matters pending that would prevent the case from going to trial

C. Whether the defendant wishes to enter a plea of guilty in accordance with a plea agreement extended by the District Attorney, discussed between the defendant and his defense attorney, and accepted by the trial court.

5) Plea Date

A defendant may change his plea entered at arraignment from not guilty to guilty prior to the commencement of his trial. Often after the defendant has obtained information provided by the district attorney through the discovery process, had his motions heard by the trial court, and conducted his own investigation through his attorney, he will decide that it is in his best interest to plead guilty rather than go to trial.

At a plea hearing, the judge will discuss with the District Attorney, defense counsel, and the defendant the plea agreement entered into by the parties. This plea agreement process is commonly referred to as plea bargaining.

A plea agreement is simply a contract entered into by the District Attorney and the defendant which involves the defendant's admission of guilt to a crime and the provisions by which he will be sentenced after his plea is accepted by the judge. The judge will accept the defendant's guilty plea only after being satisfied that the defendant understands his constitutional rights, that he is waiving those rights, that he understands the ramifications of waiving those rights, that the defendant further understands the crime for which he is charged and the nature of the plea agreement, and finally that there is a factual basis (evidence) to support the plea of guilty. A judge will accept a plea agreement when satisfied that the interests of justice are served and the plea leads to a fair resolution of the case for the State, the defendant, and the criminal justice system.

Plea agreements are entered into for some of the following reasons.

1. The victim of the crime and the District Attorney after reviewing the case believe it is in the best interest of the victim.

2. The strength or weakness of the evidence in the case warrants a plea.

3. The criminal history of the defendant indicates no prior criminal violations.

4. The criminal history of the defendant indicates he has previously violated the law.

5. The plea agreement provides for the victim of a crime to receive restitution for damages or expenses incurred as a result of the criminal actions of the defendant.

6. The plea agreement allows the victim to testify or tell the judge what type of punishment a defendant deserves and how the crime has impacted the lives of the victim.

7. The plea agreement provides for a punishment which would be imposed even if there was a trial.

• Trial Procedure

What happens when the defendant elects to proceed to trial?

Criminal trials may be either jury trials or judge (bench) trials.

Misdemeanor criminal offenses which can result in punishment in the parish or city jail for less than six (6) months and a fine of less than one thousand dollars ($1,000.00) are always tried before a judge, and defendants are not entitled to a jury trial.

In felony criminal cases, defendants may elect to have a jury trial or a judge trial. There are two categories of felonies: Relative Felonies and Major Felonies.

1. Relative felonies are those crimes which may be punishable by either parish jail or hard labor. In these cases six (6) jurors are selected to hear the criminal charges.

2. Major felonies are those crimes which are necessarily punishable at hard labor. In these cases twelve (12) jurors are selected to hear the criminal charges.

What is the normal order of trial?

In accordance with the Louisiana Code of Criminal Procedure, the normal order of trial shall be as follows.

1. The selection and swearing of the jury.

The process of selecting a jury is known as voir dire. This process allows the judge, the District Attorney and the defense attorney to ask questions of potential jurors for the purpose of determining whether the prospective jurors are able to be fair and impartial as judges of the facts of the particular case being tried. This question and answer part of the process focuses on the ability of the potential jurors to follow the law, their feelings on the type of case being heard, and other information used to pick a fair and impartial jury.

Jurors may be excused from jury duty for cause or peremptorily for reasons under the law. In selecting a twelve (12) person jury, the District Attorney and the defendant each have twelve peremptory challenges they can use during the voir dire process. In selecting a six (6) person jury, each side is allotted six challenges. There are no restrictions on challenges for cause if potential jurors do not meet the legal requirements of being fair and impartial.

2. Reading of the Bill of Information or Indictment.

After the jury is selected, the Clerk of Court reads the Bill of Information or Grand Jury Indictment charging the defendant with a criminal offense.

3. The reading of the defendant's plea at his arraignment.

4. Opening Statements.

Under the law the District Attorney must give an opening statement which shall explain the nature of the charge against the defendant and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.

A defendant is not required to give an opening statement, but may do so if he chooses.

5. Presentation of the Evidence.

The presentation of evidence by the state, and the defendant if he chooses (remember the defendant is not required to present any evidence to prove he is innocent). If the defendant does present evidence then the District Attorney has the opportunity, if he chooses, to present rebuttal evidence to counter that presented by the defense.

6. Closing Arguments.

Once all of the evidence is presented, both the District Attorney and the defendant through his attorney argue before the jury what they believe the evidence at the trial has proven. The District Attorney argues first, followed by the defense attorney, and the District Attorney has an opportunity for rebuttal close because the burden of proof lies with the District Attorney to prove the defendant's guilt beyond all reasonable doubt.

7. Trial Court's Instructions to the Jury.

The trial judge after closing arguments instructs the jury on the law which must be applied to the facts and evidence of that particular case. The instructions include a definition of the fact that the defendant is presumed innocent until such time as the District Attorney proves the defendant's guilt beyond a reasonable doubt. The trial judge also defines the law relating to the crimes with which the defendant is charged.

8. Jury Deliberation.

The deliberations of the jury take place in secret outside the presence of any person other than the jurors, after the judge has completed his instructions.

When a jury consists of twelve (12) persons, a vote of ten (10) out of twelve (12) jurors is required to render a verdict in the case. However, in a capital murder case, a unanimous vote by the twelve (12) person jury is required for a verdict to be returned.

When a jury consists of six (6) jurors, all six (6) jurors must concur to render a verdict in the case.

9. Jury Verdict.

The announcement of the jury's verdict follows their deliberation and is read in open court in the presence of the judge, District Attorney, defendant and defense counsel. Following the announcement of the verdict, the District Attorney or the defendant can request a polling of the jurors to determine how they voted to make sure the correct number of jurors voted for the verdict which has been returned. The polling can take place verbally by asking a juror about his verdict or by written document by each juror.

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