Questions About Criminal Procedure In Colorado
The attorneys at Pearson & Paris understand the importance of applying the rules of criminal procedure in a way that benefits the client. It is in the area of criminal procedure that cases are made or fall apart. We do whatever we can to use the rules in our clients’ favor.
The police have the authority to conduct an “investigatory stop” of a person when they have a reasonable suspicion, not a mere hunch, that criminal activity is in progress. The investigatory stop is often the first contact that the police have with the suspect and it almost inevitably leads to the police making an arrest decision.
The police better get this procedural step right. We are always on the look-out for “bad stops.” In many instances, a bad stop can invalidate an investigation, and may lead to the court not allowing the prosecutor to use certain evidence obtained during this initial investigation.
During the investigatory stop, the police will do their best to ask incriminating questions of the suspect. These conversations are often not preceded by reading the “Miranda rights” to the suspect. As long as the suspect is not in custody, there is no need to right anyone their rights, and everything the suspect says can and will be used against him at trial. However, where the suspect is detained, “to a degree normally associated with a formal arrest,” any statements made pursuant to questioning without a reading of the Miranda rights could be suppressed.
We are always on the lookout to spot those Miranda violations.
The police may request to search for incriminating evidence. If the suspect consents, he may not be able to challenge an otherwise clearly unlawful search. Where there is no consent to the search, the police better have “probable cause” to believe that there exists incriminating evidence in the place to be searched.
The law of search and seizure is complex, however, we can explain the law and its application to the case in complete detail.
When the handcuffs come out, the arrest is imminent. Arrest should only occur when the police have “probable cause” to believe that the arrestee has committed a crime. Oftentimes, an arrest is immediately followed by a search.
If the arrest was not supported by probable cause, we will fight to get any evidence obtained after the arrest “thrown out”.
With few exceptions, when there is an arrest, there is a right to bail. There are different types of bonds that can be posted, such as cash, surety, or property. There may even be times when the accused should ask for a “personal recognizance bond,” which is an unsecured bond that allows the accused to simply promise to appear at all court appearances in the case.
The court often imposes various conditions to the bond, such as no consumption of alcohol or staying away from the family residence. Beware that violation of bond conditions is a criminal offense that carries a mandatory minimum period of incarceration. It is critical that no more conditions attach to the bond than are absolutely necessary. It is equally important to fully understand the conditions of the bond. Violation of bond conditions cases give prosecutors incredible leverage in cases that are otherwise weak.
The charging decision
Law enforcement officers can issue the citations (summons and complaint) for all misdemeanors and traffic infractions (civil) and traffic offenses (misdemeanor traffic offenses). However, they can only do so if they have probable cause.
The District Attorneys can file misdemeanor and traffic complaints, as well as felony “Informations.” Occasionally, the district attorney will present a case to the grand jury, who can issue a “no true bill” (no indictment) or who can issue an indictment. Again, these charging documents must be supported by probable cause.
We review each charging document to ensure that it meets the legal requirements of the Criminal Procedure Code. If it does not, we will fight to obtain a dismissal of the case. We also ensure that the criminal filing occurs within the applicable statute of limitations. In those instances where the charges are not brought in a timely matter, we fight for a dismissal.
The preliminary Hearing
In a handful of cases, the defendant is entitled to a preliminary hearing, which is a procedure to test whether the complaint, indictment, or information is indeed supported by probable cause. In general, the accused is entitled to a preliminary hearings when (1) the accused in unable to make bail in any felony matter; (2) for class 1, 2, and 3 felonies, and (3) for offenses that carry a mandatory prison sentence.
The preliminary hearing is our opportunity to cross-examine the prosecutors witnesses in a case. When the evidence does not establish probable cause, we fight for a dismissal.
The arraignment is the hearing when the court formally advises the defendant of the pending charges and when the defendant enters a plea of guilty or not guilty. Most often, the defendant will waive formal advisement and enter a plea of not guilty. Upon the entry of the not guilty plea, the court has 6 months to bring the defendant to trial.
We always check to see whether a defendants rights to a speedy trial are honored. When they are not, we fight for a dismissal of the case.
Most often, the prosecutor will make an offer of settlement in the case. This is no time for “amateur hour.” These negotiations should be conducted by a person skilled in criminal law who can analyze whether the offer should be accepted, further negotiated, or flat out rejected. An offer to plead guilty to a petty offense may be a good offer not considering any facts in the case, however, it may still be the wrong offer for a person who is innocent.
We are skillful not only in carefully negotiating plea agreements, but they are also mindful that any conviction may have collateral consequences for (1) immigration status; (2) employment status; (3) possession and ownership of firearms; (4) driver’s license status; (5) or even licensing status with any of the professions regulated by the Colorado Department for Regulatory Affairs (“DORA”).
The motions hearing
Where cases do not settle, the opportunity arises to shape what evidence can be used at the trial. Perhaps more importantly, this is the time that the defendant can challenge the legality of the stop, the arrest, statements that were made to law enforcement, evidence that was seized, and challenging unconstitutional hearsay. There are many other types of evidentiary challenges that can be made depending on the unique circumstances of each case.
The (jury) trial
In criminal cases there exists a constitutional right to trial by an jury. It is a valuable right, and one that most, if not all, criminal defendants should exercise. Juries, on the whole, favor the defendant. However, jury trials are complicated, lengthy, and demand the presence of an attorney who is fluent with jury trial procedures.
We have conducted close to 100 jury trials and we are extremely knowledgeable about trial advocacy practices. We fight for our clients rights and we fight for acquittals.
The sentencing hearing
In the event the trial results in a conviction, the stakes could not be higher to ensure that the case is properly prepared for sentencing. Every sentencing hearing requires an investigation to identify mitigating factors, voluntary treatment options, letters of reference, etc. Meticulous preparation for the sentencing hearing can mean the difference between probation and jail or prison.
We take special care to gather all the evidence to obtain the most lenient sentence possible.
After sentencing, there are still many procedural tools available to alter the outcome of the trial or modify the sentence. These include the following: (1) direct appeal to an appellate court; (2) correction of an illegal sentence; (3) reduction or modification of an existing sentence; (4) request to set aside the conviction on the basis of constitutional violations that occurred in the case.
We have a lot of experience handling appeals and pursuing post-conviction remedies. We have handled in excess of 50 appeals and our successes in this very specialized area of the law are well documented.
From start to finish, a criminal case is governed by many different procedures. At Pearson & Paris, we know that the exercise of procedural rights may lead to dramatic results, such as suppression of evidence and statements, dismissal of charges, or even dismissal of the case itself. You need experienced counsel, and we are here to help!