• Train Stop One – Alleged Crime 
  • When someone is accused of a crime, the police are either there right away, or the police do not get involved until later. 
  • Scenario 1 (Traffic Stop) – Police come right away
    • Defendant James Smith is driving down Cicero Avenue in Chicago and is stopped by an unmarked police car for allegedly running a red light. The Chicago Police approach Defendant James Smith and ask for his license and insurance. When Defendant James Smith does not have those documents on him, the police arrest him for driving without a valid license and insurance. 
  •  Scenario 2 (Bar Fight) – Police get involved later
    • Defendant James Smith is at a bar in Chicago with his friends. When a drunk man bumps into Defendant James Smith and spills his drink, Defendant James Smith asks the other man to just buy him another drink. The other man refuses and Bouncer Bob comes over. Bouncer Bob misunderstands the situation and grabs Defendant James Smith by his arm and shoves Defendant James Smith into a wall. Defendant James Smith punches Bouncer Bob to get Bouncer Bob off him and Defendant James Smith leaves the bar. The police are not called right away, but Bouncer Bob has to go to the hospital to get stiches. 

• Train Stop Two – Crime Investigation
  • Scenario 1(Traffic Stop)  – Police come right away
    • Defendant James Smith has police contact right away for allegedly running a red light. That sees police instantly make contact with Defendant James Smith and begin investigating the traffic stop, but looking for ways to get Defendant James Smith out of his car to search him and his car.
    • This crime investigation when police come right away will have far less people, unless it is an active shooting.
  • Scenario 2 (Bar Fight) – Police get involved later 
    • Defendant James Smith gets a call from Chicago Detective Darrell that Detective Darrell has a complaint from Bouncer Bob that Defendant James Smith punched Bouncer Bob and Bouncer Bob had to get stiches from the punch. Detective Darrell asks Defendant James Smith to come to the police station for an interview.  
    • This crime investigation when police do not get involved until later will have far more people because there will likely be a detective who replaces the first police in the investigation or a detective who follows up on a report given to a police district desk sergeant. Also, there will be other non-police who are part of the investigation, like prosecutors who are helping to shape the investigation or medical personnel who treated someone down when they were brought to the hospital.  

• Train Stop Three – Arrest
  • Scenario 1(Traffic Stop) – Police come right away
    • Defendant James Smith has his license at his house and he cannot open his insurance application on his phone to show proof of insurance. Since those two things are happening at the traffic stop, the police will often arrest someone for driving without a license and valid insurance at the scene. In this scenario, the police arrest Defendant James Smith, which means that they then will pat him down before putting him in the back of their patrol car and check Defendant James Smith’s car. While the car check has nothing to do with the alleged red light violation or not having his license and insurance at that moment, the police will check the car for “inventory” purposes. 
    • Police departments often use private towing companies to tow the car of someone they just arrested. To make sure police departments are not sued down the line for anything damaged during the tow or stolen during the tow, the police will check the car. Now, the police do not really care about Defendant James Smith’s property. The police are using that as an excuse to check for any weapons or drugs.
    • During their “inventory” search, the police find a gun in Defendant James Smith’s glove compartment. Since Defendant Jame Smith only has his FOID card and not his concealed carry card, the police now also arrest Defendant James Smith for unlawful use of a weapon, which is a felony. 
  • Scenario 2 (Bar Fight) – Police get involved later
    • Weeks after Bouncer Bob wrongfully grabbed Defendant James Smith, Detective Darrell has reviewed the footage from the bar and is able to track down Defendant James Smith. Detective Darrell asks Defendant James Smith to come to the police station for an interview because Bouncer Bob filed a police report a week after he needed stiches.
    • Defendant James Smith is not read his rights to remain silent or to have a lawyer present. Detective Darrell asks Defendant James Smith about the event at the bar. Once Defendant James Smith talks to Detective Darrell, Detective Darrell arrests Defendant James Smith for aggravated assault of Bouncer Bob, which is a felony. 

• Train Stop Four – Detention Court Hearing
  • Scenario 1 (Traffic Stop) – Police come right away
    • Illinois no longer has bond. Illinois has detention hearings. That means if you are arrested for an allegation that is a detainable offense (meaning you have to see a judge before law enforcement can release you), then you have to go before a judge to have a hearing on whether or not you will be released from custody during your pending case. 
    • Since a pistol was found in Defendant James Smith’s glove compartment when the police arrested him for not having a driver’s license and insurance, Defendant James Smith must go before a judge to determine if he will be released during his pending case or not. 
  • Scenario 2 (Bar Fight) – Police get involved later 
    • Since the detective arrested Defendant James Smith for an allegation of assault Bouncer Bob when the detective brought Defendant James Smith to the police station for questioning, Defendant James Smith must go before a judge to determine whether or not he will be released during his pending case.
    • It is crucial that you hire the right lawyer at this early stage of a criminal allegation. If you are not released at the initial detention court hearing, it is harder to get released at a later date. While the Pretrial Fairness Act allows for your assigned judge to release you when the initial detention hearing judge did not, it is much harder to be released from custody at a later date. Having a strong presentment of your background and case allegations at the detention hearing is a must because if you are not released during your pending case you will be away from your family, your work, and have a harder time communicating with your lawyer. 

• Train Stop Five – Probable Cause to Proceed with Criminal Charges
  • In order for a criminal allegation to proceed against a criminal defendant, there needs to be a finding of probable cause. A finding of probable cause can come in two ways: a preliminary hearing or a grand jury indictment 
    • Preliminary Hearing – a preliminary hearing is held before a preliminary hearing judge. That judge will hear basic facts of the allegation and determine whether or not there is enough information for the criminal allegation the prosecution is trying to bring forward can continue. At a preliminary hearing, Defendant James Smith has a right to be present and can testify if he chooses to. However, there is very little evidence that is necessary to obtain probable cause, and hearsay can be used. What does that mean for Defendant James Smith? That means that it does not even have to be the arresting officer who testifies at a preliminary hearing for the preliminary hearing judge to find probable cause. 
    • Grand Jury Indictment – Do not be confused by the word jury being in the title grand jury. A grand jury is different than a jury that will hear the ultimate facts and determine if Defendant James Smith is guilty or innocent. A grand jury is still composed of citizens of the county, selected at random. A grand jury will hear minimal evidence and decide if the prosecution has enough information to proceed with their allegation against Defendant James Smith. There is one significant difference in a preliminary hearing versus grand jury indictment, and that is the accused (Defendant James Smith) does not have a right to be present at the grand jury proceeding. That means the prosecution can present one-sided information to the grand jury without any chance for defense lawyers to cross-examine prosecution witnesses or present defense evidence, like there would be at a preliminary hearing. 
  • An accused person (Defendant James Smith) does not get to choose if the prosecution tries to move forward with a case against him by preliminary hearing or grand jury indictment. Generally, depending on the type of crime alleged, you can tell if the prosecution is going to try to move their case forward against you via preliminary hearing or grand jury indictment. In our scenarios for Defendant James Smith, the prosecution would likely proceed with a preliminary hearing if it was prosecuting the firearm found in Defendant James Smith’s car. The prosecution would likely proceed by grand jury indictment for the allegation of assault of Bouncer Bob because the prosecution does not want the defense to know any witnesses they have at this stage or any evidence they have at this stage of the criminal proceeding. That is because a criminal defendant is not entitled to evidence about the case at a preliminary hearing or grand jury indictment phase. 

• Train Stop Six – Formal Charges and Indictment
  • If there is a preliminary hearing that finds probable cause or a grand jury that returns an indictment, then a person knows the alleged crime is being fully prosecuted and certain rights to the defendant kick in. 
  • If there was a preliminary hearing that found probable cause to proceed against the defendant, then you will hear the preliminary hearing judge say something to the effect of, “there is a finding of probable cause and this matter is set for assignment and arraignment on X date, time, and courtroom.” If there are formal charges or an indictment that is returned, then the case will be assigned to a trial judge. Defendant James Smith will receive notice of who that judge is and what the Defendant James Smith’s next court date is. 

• Train Stop Seven – Assignment and Arraignment
  • Assignment 
    • Once a felony accusation moves beyond the probable cause stage, there is a new case number generated and the criminal allegation case is then assigned to a trial judge. 
    • In Illinois State court, once a felony matter has been assigned to a judge, the defendant has ten days to file a substitution of judge. If that substitution of judge is not filed, the judge you are assigned to will be the judge for the existence of the felony case. It is important to know which judge your matter is assigned to. Judges really do work hard and have an inordinate amount of cases they have to preside over. However, judges are people, and certain judges have certain crimes that they despise. Knowing which judge Defendant James Smith is assigned to is a crucial step in his criminal defense. 
  • Arraignment
    • An arraignment is done at your first appearance before the judge you have been assigned to. However, if you substitute the judge you were assigned to, then your case goes back to assignment phase and your arraignment will be done at the next court appearance. 
    • Arraignment may seem minimal to you, but it legally very significant. At arraignment, that is where the official charges will be read against Defendant James Smith, Defendant James Smith enters his plea of either guilty or not guilty, and the judge informs Defendant James Smith that if he flees the jurisdiction or is not present because of his own conduct, the criminal case can still proceed to trial in his absence and he will be sentenced when he is subsequently caught. Defendant James Smith should never run. Law enforcement will find him; Defendant James Smith will not be present at his own trial, so he will obviously be found guilty; and the judge will only sentence Defendant James Smith to a way longer sentence for running.  

• Train Stop Eight – Discovery Process 
  • Discovery is where real defense lawyers can make or break a case. It is crucial that Defendant James Smith is in great communication with his criminal defense lawyers during the discovery process. Anyone accused of a crime has a right to any and all evidence, including witness names and points of contact, that the prosecution or law enforcement has in its possession. Whether or not a piece of evidence is relevant is not up to the prosecution. Anything in the prosecution’s possession must be disclosed to a person who is charged with a crime. 
  • Discovery is called a process because it is not over in one court appearance. Often times the prosecution will have some discovery to give your defense lawyer at the arraignment, but the vast majority of discovery will come in the weeks and possibly months that follow. 
  • Discovery takes so long to complete because it is not like defense lawyer to client communication where defense lawyer can just call his client and ask for documents or points of contact for potential witnesses. Discovery that the prosecution must give you starts with the prosecution sending a subpoena to the police department for any reports, witness statements, bodyworn camera footage, or anything else the police gathered in their investigation or continued investigation. That means that a prosecutor’s subpoena on one case must get sent to the Chicago Police Department Headquarters, which then has the subpoena go to the district where the officers work out of, which then has the subpoena go to the individual officers. Then, those individual officers gather any evidence they have and send it back to the prosecution through that chain’s reversal, which then makes it to the defense lawyer from the prosecutor. A good defense lawyer can speed this process up by listing specific things that the defense lawyer wants in discovery or notifying the prosecutor that something is missing. 

• Train Stop Nine – Motion Practice
  • A motion is either the prosecution or defense asking the judge to do something specific. A motion can be filed by either the prosecution or defense. A motion is literally “moving the judge” to do something. 
  • A motion can be filed at any stage in a criminal proceeding. However, you will typically find motions filed during the discovery process or after discovery is complete. 
  • Examples of motions are: Motions to Compel and Motions to Suppress
    • Motions to Compel – if Defendant James Smith’s defense lawyer finds in a police report stating there was another witness to the alleged assault on Bouncer Bob and that a statement from that witness was taken by police, but was not given to defense in discovery, then the defense lawyer can file a Motion to Compel the police to turn over that missing evidence. The judge will then make a ruling to determine if the police must be compelled to turn over the witness statement. 
    • Motions to Suppress – this is often used when a defendant’s rights were violated. The Motion to Suppress is not about whether or not a crime occurred, rather it is about did a government actor obtain evidence in violation of the law. From our Scenario 1 (Traffic Stop) of Defendant James Smith being pulled over for allegedly not stopping at a stop sign and then police later find a firearm in his car, the Motion to Suppress would not be a trial on whether or not Defendant James Smith had that firearm; the Motion to Suppress is whether or not the police really did believe Defendant James Smith had a traffic violation. That can be proven by dashcam footage, so if the video shows there was no traffic violation, then the judge can suppress the firearm recovered in Defendant James Smith’s car because a government actor obtained the firearm by violating Defendant James Smith’s rights. Similarly, in Scenario 2 (Bar Fight), where Defendant James Smith is accused of assaulting Bouncer Bob, the detective who interviewed Defendant James Smith did not read Defendant James Smith his rights about having an attorney or remaining silent and Defendant James Smith made statements to the detective about the allegations, then the defense lawyer could file a Motion to Suppress Defendant James Smith’s statements to law enforcement.
  • If Defendant James Smith’s lawyers are successful at the Motion to Suppress, it is possible the case can be dismissed because the prosecution is now informed by the judge that the judge will not allow the prosecution to use evidence that was illegally obtained by the police.

• Train Stop Ten – Trial 
  • If Defendant James Smith’s felony allegation is not dismissed during the discovery process or motion practice and there is no agreement to a potential negotiated plea by Defendant James Smith and the prosecution, then the matter will go to trial. 
  • Since Defendant James Smith has a right to a trial, he also has a right to decide if he wants a judge alone trial or a jury trial. That decision on who he wants to hear the facts of his case belongs only to Defendant James Smith, so he must have criminal defense lawyers who can guide him on which route is best for him at trial. 
  • A judge alone trial is often called a bench trial. This is where the judge will be the sole person to determine whether or not the prosecution has proven their case beyond a reasonable doubt against Defendant James Smith. 
  • A jury trial is where twelve members of the public are selected, after a process called voir dire, to hear the facts of the case and determine whether or not the prosecution has proven their case beyond a reasonable doubt against Defendant James Smith. 

• Train Stop Eleven – Sentencing Hearing
  • If Defendant James Smith is found not guilty at his trial, whether it is a judge alone or jury trial, his case is over and he can then expunge his record.
  • If the prosecution does not dismiss its case against Defendant James Smith or no negotiated plea is reached and Defendant James Smith’s felony allegation goes to trial and he is found guilty, Defendant James Smith will then have a sentencing hearing. 
  • A sentencing hearing is not done on the same day as a judge or jury return their decision on guilt or innocence of Defendant James Smith. 
  • A sentencing hearing is labor intensive. At a sentencing hearing, Defendant James Smith’s judge will hear from the prosecution and defense lawyers on what a just sentence should be. While at trial the prosecution can not bring up prior convictions Defendant James Smith may have, unless they are very specific convictions, the prosecution may do that during sentencing. The same goes for the defense lawyers though. While the defense lawyers cannot bring up all the other good things Defendant James Smith has done in his life during the trial, the defense lawyers can bring them up at sentencing. That is because a trial is only determining whether or not the allegation happened and sentencing is judging Defendant James Smith in total. 

• Train Stop Twelve – Appeal 
  • If there is something that Defendant James Smith and his criminal defense lawyers believe the judge made an error in during the trial, then Defendant James Smith may appeal his finding of guilty after trial, whether it was a judge alone or jury trial. 
  • Examples of where Defendant James Smith and his criminal defense lawyers may believe an error was made is the judge allowing the jury to hear from a prosecution witness who talked about a prior conviction of Defendant James Smith that improperly influenced the jury as to whether or not Defendant James Smith committed the current allegation he is charged with. 

       As shown in the Weiss & Villalobos train track theory of criminal defense above, proper criminal defense is a massive process. Having the right criminal defense lawyers is crucial to making sure you are properly represented because facing a felony allegation is nothing to take lightly. You can contact Wiess & Villalobos to discuss your criminal defense matter by clicking here.