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Criminal Defense

Davis Law represents criminal defendants at all stages of the criminal justice process.  Please review the below information to better understand these criminal justice stages and to better understand a criminal defendant's basic rights.  Please note that the below information is not a complete list of proceedings, but rather a basic overview.  If you have questions or concerns regarding a specific case, please contact Davis Law at 404.901.2500 and 770.922.8500, or send us a message from our website - Contact Davis Law.

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Pre-Trial Proceedings

INITIAL APPEARANCE

After being arrested and booked into jail, the person accused of a crime is brought before a Magistrate Judge for an Initial Appearance.  The Initial Appearance allows the person (hereinafter known as "defendant") to be made aware of their pending charges and for the Judge to set bail, provided the alleged charges are not capital crimes which require bail to be set by a Superior Court.  An Initial Appearance must occur within 72 hours if there was a warrant for the arrest, but only 48 hours is allowed when an arrest is made warrantless.

PRELIMINARY HEARING (Probable Cause Hearing)

The preliminary hearing is usually held in magistrate court and is used to determine the following:

  1. Whether or not there is probable cause to show a crime has been committed and whether the defendant was the one who committed the crime.
  2. Whether the charges brought against the defendant reflect the crime that has been committed.
  3. Whether the crime is considered a misdemeanor or a felony.

During the preliminary hearing, both sides introduce evidence.  The burden is on the prosecution (State of Georgia) is to show probable cause, which is law standard of proof.

ARRAIGNMENT

An arraignment serves to give notice to the defendant of their charges and give them the opportunity to enter a plea.  During the arraignment, the defendant is read their charges in open court and must state whether they are guilty or not guilty.  If a defendant does not enter a plea, the district attorney is obligated to enter a plea of "not guilty."  In many cases, except capital felonies, the defendant can enter a plea of nolo contendere, instead of guilty or not guilty, but a nolo contendere can be denied at the discretion of the presiding Judge.

MOTIONS PRACTICE

Unless provided an extension by the presiding Judge, various pre-trial motions must be filed with the Court and served upon the State within ten (10) days of arraignment.  The most common pre-trial motions are suppression motions.  These motions can be used to exclude statements or evidence in the position and knowledge of the State.

PLEA BARGAINING and NEGOTIATIONS

In some situations, a case can be settled without going to trial.  In plea bargaining, the defendant can either plead guilty to a lesser charge, and thus receive a less serious sentencing, or the defendant can plead guilty to the initial charges and, in turn, receive a recommended sentence.  Under circumstances of negotiated plea, the defendant and State present an agreed upon joint sentencing recommendation to the Judge.  Under circumstances of a non-negotiated plea, the defendant and State are presenting opposing sentencing recommendations to the Judge.  The Judge has sentencing discretion; however, under circumstances of a negotiated plea the defendant can withdraw their guilty plea if the Judge does not accept the joint sentencing recommendation.  While under circumstances of a non-negotiated plea, the defendant may not withdraw his guilty plea if the Judge does not accept the defendant's sentencing recommendation.

Trial Proceedings

MOTIONS PRACTICE

Immediately prior to trial, the defendant and/or State of Georgia may file Motions In Limine to exclude various types of evidence each party anticipates being introduced during trial.  This evidence may include hearsay, admissions, confessions, expert opinion, and / or character evidence.

JURY SELECTION

Before a trial begins a jury must be selected.  During the jury selection process, the attorneys for both sides ask the potential jurors questions to determine if they can be fair and impartial.  If an attorney believes a potential jury member may be prejudiced they can strike them from the jury.  This is known as a strike for cause and an attorney can strike for cause an unlimited number of times.   Attorneys are also allowed a limited number of peremptory strikes.  In these cases, an attorney can eliminate any potential juror who could be detrimental to their case.  A juror can never be stricken based on their race or sex.

TRIAL

After the jury is selected, the trial begins.  A trial consists of opening statements, presentation of the case, and closing statements.  The opening statement allows each attorney to address the charges against the defendant.  The attorneys will then outline what they will try to prove during the trial.

The main part of the trial is the presentation of each side's case.  During this process the prosecutor must show, beyond a reasonable doubt, that the defendant is guilty.  The prosecution presents its evidence first, giving the defense the opportunity to refute the evidence brought against them.

After all the evidence has been presented, each attorney will give their closing statements.  During the closing statements, each attorney attempts to convince the jury their case has more merit than the other.  Only what was presented during the trial can be used in the closing statements.

Post-Trial Proceedings

SENTENCING HEARING

Before the sentencing hearing, presentence investigations are conducted.  During these investigations, information about the defendant's background is compiled to assist the judge in determining the sentence.  This information can include past criminal records, employment, and education.  During the sentencing hearing, both attorney's will make presentations highlighting the defendant's good and bad qualities.  Once the hearing is over, the judge will then issue a sentence to the defendant.

PROBATION REVOCATION HEARINGS

If the conditions of probation are violated, that person could have their probation revoked or modified.  In order to determine if probation has been violated a probation revocation hearing might be held.  The standard of proof at a revocation hearing is preponderance of the evidence.  If a defendant is found to have violated their probation, the judge can revoke some or all of their probation, depending on what conditions of probation have been violated.  Most probation sentences have both General Conditions and Specific Conditions of probation.

SENTENCE MODIFICATION

In criminal cases, a defendant's sentence can be modified after a trial is over, or even after the defendant is in jail.  However, sentence modifications are only available in certain circumstances.  The following are some instances in which a sentence can be modified:

  1. An error was made in the sentence and needs to be corrected
  2. The defendant has assisted in another criminal case by cooperating with prosecutors to provide information or testimony
  3. Other factors such as, the offender's age, terminal illness, or changes in state sentencing guidelines.

A defendant may request a sentence modification at any time during their sentence.  A motion will need to filed and reviewed by the Judge.  The defendant must show new factors that would justify having the motion reviewed.

HABEAS CORPUS

Habeas Corpus is a Court order that allows for a prisoner to be brought before the Court to determine if the prisoner is being held unlawfully. When a habeas corpus petition is filed, the prisoner must prove that the Court made a legal or factual error during the trial.  A Writ of Habeas Corpus must be submitted within a year for misdemeanors and within four years for a felony.

Please note that the above information is not a complete list of proceedings, but rather a basic overview.  If you have questions or concerns regarding a specific case, please contact Davis Law at 404.901.2500 and 770.922.8500, or send us a message from our website - Contact Davis Law.