The first phase of the criminal justice process in Georgia is the investigation. During this phase, the police or other law enforcement agency is investigating and building their case against you. Typically they are interviewing witnesses, gathering physical evidence, such as fingerprints, and then submitting that evidence to the Georgia Bureau of Investigations for testing. They may ask to interview you (DON’T DO IT). They can obtain and execute search warrants of your home, your vehicle, your office, your cell phone, and even of your person (such as taking a DNA sample).
Once the police have concluded their investigation, they will have determined who they believe was involved in the crime. The investigator will take the findings of his investigation, present them to a neutral Judge, and ask the Judge to sign and issue an arrest warrant. Once the investigator has an arrest warrant signed by a Judge, he or she can then locate the suspect and arrest them. Just because a person has been arrested does not mean there is enough evidence to convict them at trial. The standards of proof for an arrest and a conviction are very different. It requires a much greater standard of proof, guilt beyond a reasonable doubt, than it does for an arrest warrant to issue. Once you’ve been arrested, you’ll go in front of a Judge within 48 hours for a probable cause determination and for a bond hearing (if one wasn’t set on the bond). Hopefully, at this point, you’ll be able to bond out. If not, then your next court date will be for a Probable Cause Hearing and a Motion for Bond or Motion to Reduce Bond, whichever applies. For an experienced Atlanta Criminal Defense Lawyer, an arrest is merely the start of the fight, not the end.
Once the State has completed its investigation, the law enforcement agency turns over its investigative file to the District Attorney's office. The district attorney’s office will then review the file and prepare it to present to the Grand Jury. The district attorney will present evidence in the form of testimony to the grand jurors. It’s the grand juror’s job to determine, based upon the evidence they hear, whether probable cause exists. If they determine probable cause exists, then the defendant is charged with the crimes he is alleged to have committed, and the case is “bound over” to the superior court, where it is assigned a superior court Judge. Grand Jury proceedings are not what you would call fair, nor are they the type of courtroom proceedings you’re used to seeing on TV. They are one-sided as only the District Attorney is allowed to present evidence. Neither you nor your lawyer are allowed to be present during the proceedings. They are secret, and it is only in extremely rare cases that you’ll ever know what evidence was presented to the Grand Jury. Once the Grand Jury hears the evidence and decides to move forward on the charge, they issue a “true bill” of indictment (as opposed to a “no bill” of indictment which is the situation where the grand jury does NOT feel there is enough evidence to go forward). At this time, the foreperson of the grand jury signs and dates the indictment, and it is filed with the clerk of court for that day in open court.
Sometime after indictment, depending on what circuit your case is in, you’ll receive a notice of arraignment from the clerk’s office. Arraignment is your first court date after a case has been indicted. The purpose of arraignment is for you to “answer the charge” by entering into a plea of not guilty or guilty. Technically speaking, it is possible at that point for you to plead guilty to all charges in the indictment and then be sentenced by the Judge. Realistically, this almost never happens. Normally, you’ll plead not guilty and demand a jury trial. Usually, you will actually waive formal arraignment, which is a process where you stand in front of the Judge, and he reads your charges to you out loud in open court. Instead, you’ll waive formal arraignment in exchange for a copy of the indictment and a witness list, and then you and your attorney will review the documents together. The reason almost everyone pleads not guilty at arraignment is because they want to receive the ‘discovery,’ which is a general term we use to describe all the evidence the State possesses, and have an opportunity to review the evidence, conduct your own investigation, file any all necessary pretrial motions, and prepare for trial.
Discovery is the term used in Georgia to describe all the evidence in a case. For example, discovery that the State will provide you will typically include all police reports, supplemental police reports, investigative reports, warrants, Georgia Bureau of Investigations reports for any testing that was done, witness statements both recorded and written, cell phone dumps or computer extractions, expert reports, documents that were subpoenaed, and any other evidence the State either has in their control or plans to present at trial. Note the distinction; if the State has something that is helpful to your case, they must turn it over to you. This is typically the first time your attorney has had a chance to review all the State’s evidence and get an idea of what type of case the State has against you. At that point, you and your lawyer can discuss and decide how to move forward. Oftentimes, when we receive discovery, we can tell something is missing, which requires us to request additional materials from the State. This is also the phase in which your lawyer will conduct his or her own investigation and begin interviewing witnesses who may be helpful to your case.
Once you and your attorney have had an opportunity to review the discovery and conduct your own investigation, your lawyer will, depending on the case, file pretrial motions. These can include demurrers to challenge the indictment, motions to suppress searches, seizures, identification, and statements made. These motions are designed to show the court that the State either did something wrong or did it in such a way as to violate your Constitutional rights. The Judge will set a hearing, and witnesses will have to come to court to give evidence in the form of testimony, and the lawyers will argue their respective sides to the Court. Then the Court will issue a ruling, either denying the motion or granting the motion. If the Court grants the motion, then whatever you were arguing to keep out of the trial will be kept out of the trial. Sometimes these motions hearings can be dispositive. For example, suppose the Judge rules that a search of a person which resulted in the investigating officer finding a controlled substance is was unconstitutional and suppresses the evidence. In that case, the State will be unable to prove that person was in possession of the controlled substance because a jury will not hear that evidence. Sometimes we do motions as a means of investigation. Filing a motion that requires the State to bring in a witness pretrial allows us to cross-examine that witness and learn a little more about the case. It also allows us to lock that witness into sworn testimony that we may be able to use to our advantage later in the case.
This is the final phase of the criminal process. As a criminal defendant, you are guaranteed the right to a jury trial by the United States Constitution. You have the ability to waive that right and ask for a bench trial where instead of 12 jurors (who are supposed to represent a cross-section of your community) hear the evidence in the case. Only the Judge hears the evidence, and only the Judge determines whether or not the State met their burden of proof. If the Judge finds the State did carry their burden of proving your guilt beyond a reasonable doubt, then you would be adjudicated guilty. If he finds the State did not, then you would be acquitted. In Georgia, the State has to consent to a bench trial. All that being said, it is extremely rare that we would recommend to our client that he or she do a bench trial. We much prefer trying cases in front of juries. A jury trial is where you and the State choose 12 jurors from a larger pool of potential jurors to hear the evidence in your case. During this process, you have the right to strike a limited number of potential jurors, as does the State, in order to find the best jury to hear your case. Once the jury has been sworn, the State will proceed to present evidence through testimony and the admission of exhibits (such as photographs, records, or recordings) in order to persuade the jury to find you guilty beyond a reasonable doubt. Once the State rests, you then have the opportunity to present your evidence, including calling your own witness and testifying on your own behalf if you so choose. At the close of evidence, both sides make their closing arguments, the Judge charges the jury with the law, and then the jury retires to deliberate. In order to convict you, they have to reach a unanimous verdict where all 12 jurors agree the State proved their case beyond a reasonable doubt. To acquit you, all 12 jurors have to agree that the State failed to prove their case beyond a reasonable doubt. If some jurors think the State proved their case and others think the State didn’t prove their case, then that’s a hung jury or a mistrial, and we do it all over again.