Criminal Defense Training - Law Firms

Criminal Defense Training For Pro Bono Attorneys

John Benson, Director of Criminal Defense Marissa Claxon, Staff Attorney Shannon Murphy, Attorney Fellow

ARREST & DETENTION • Most criminal cases are initiated by arrest – Some misdemeanor cases may be initiated by summons (letter in mail)

• After arrest, detained at police station – Investigation: crime and person

• If charged: – Misdemeanor cases: often receives bond at police station – Felony cases: transferred to Central Bond Court

Criminal Defense Training

BOND • Central Bond Court: 773-869-5849 – 2650 S. California Ave, Room 100 – 11:45 am (11:00 am on weekends)

• 725 ILCS 5/110-5: Determining the amount of bail and conditions of release TIP: Pre-trial Services report

Criminal Defense Training

BOND • 725 ILCS 5/110-6: Bond increases and denial of bail – (a) verified – (a) new facts – (c) reasonable notice

TIP: courtroom idiosyncrasies Criminal Defense Training

FORMAL CHARGING •

725 ILCS 5/111-1: Method of prosecution 1. Complaint 2. Information 3. Indictment

Criminal Defense Training

FORMAL CHARGING • 725 ILCS 5/109-3.1: Timeframe – 30 days from custody – 60 days from arrest (on bond)

TIP: Not practically enforceable

Criminal Defense Training

FORMAL CHARGING •

725 ILCS 5/111-3: Form of Charge 1. Examine charging document 2. Read statutes

Criminal Defense Training

FORMAL CHARGING •

725 ILCS 5/111-5: Formal Defects 1. Examine charging document 2. Read statutes

TIP: Complaint law is highly specific. It is based on notice and jeopardy.

Criminal Defense Training

PRELIMINARY HEARING •

725 ILCS 5/109-3: preliminary examination – – – –

(a) probable cause (b) hearing (c) witnesses called (d) motion to suppress*

TIPS: 1. Ask open-ended questions 2. Ask foundational questions 3. File written trial demand

Criminal Defense Training

PRELIMINARY HEARING • Must order and pay for transcript – 26th Street: 773.674.6065 – Branch Courts: 312.603.8404

• 725 ILCS 5/111-2(a): Waiver – Diversion Programs – Plea

Criminal Defense Training

PRELIMINARY HEARING • 725 ILCS 5/112-4 (b) • WARNING: after a finding of no probable cause, prosecutors may seek to indict TIP: Consider early plea negotiation

Criminal Defense Training

GRAND JURY • 725 ILCS 5/112-6: Secrecy of proceedings

• 725 ILCS 5/112-7: Transcript

Criminal Defense Training

FINDING OF PROBABLE CAUSE • 21 days after a finding of probable cause, the case continued for assignment - Chief Judge’s courtroom - 2650 S. California Ave, Room 101 TIP: No wiggle room

Criminal Defense Training

INDICTMENT • Generally, defense learns of indictment in preliminary hearing courtroom • Case continued for assignment TIP: wiggle room

Criminal Defense Training

ASSIGNMENT • Chief Judge – Room 101 • Call beings at 9:00 am sharp • Case immediately assigned to courtroom in building OR given date for assignment in Bridgeview or Skokie TIP: Can call clerk day before to determine where case is assigned (773-869-3157)

Criminal Defense Training

ARRAIGNMENT • 725 ILCS 5/113-1: Procedure at arraignment – File Appearance and Motion for Discovery

• Arraignment “magic words”: – – – –

Seek leave to file appearance Waive formal reading Enter a plea of not guilty Request a by agreement status date

Criminal Defense Training

DISCOVERY • Supreme Court Rules 411 – 415 • Initiation (Rule 411): starts at arraignment • Felony: tendered at court • Misdemeanor: sent in mail (business card)

Criminal Defense Training

DISCOVERY • Non-exhaustive list of basic discovery from state: -

Incident Report General Offense Report Arrest Report Supplemental Report Detective Supplemental Report General Progress Report Detective Close-Out Report

Rule 412: Disclosure to the accused – State must provide defense with written answer (Read entire rule)

Criminal Defense Training

DISCOVERY • Important rules for obtaining additional discovery: – Rule 412(f) flow of information and (g) other governmental personnel: Burden on state – Rule 412(h): Discretionary disclosure: Judge can order (catch-all)

Criminal Defense Training

DISCOVERY • Defense must file a written answer (Felony) • Rule 413: Disclosure to prosecution – Answer Must Include: • Affirmative defenses – insanity, self-defense, intoxication (voluntary or involuntary) • Alibi – place • Witnesses and written statements of witnesses • Known Convictions of witnesses • Physical Evidence and Scientific Reports

Criminal Defense Training

DISCOVERY • Rule 415: Regulation of Discovery – (a) Investigations Not to be Impeded – (b) Continuing Duty to Disclose: If new information is learned, must notify

Criminal Defense Training

SUBPOENAS • Returnable to court on next court date • No fees • Compulsory process – 6th Amendment

Criminal Defense Training

SUBPOENAS • POLICE: – 3510 S. Michigan Avenue, 60653 – Records: Keeper of Records – Appearance: Police Officer (star number) • 72 hours notice for appearance

– Delivery rules change, call subpoena unit • CPD subpoena unit 312-745-5603

Criminal Defense Training

SUBPOENAS • EVIDENCE TECHNICIAN PHOTOS: – E.T. referenced in police reports – Subpoena: Keeper of Records, Graphic Arts Department, 3510 S. Michigan Ave 60653

TIP: subpoena on your own

Criminal Defense Training

SUPBOENAS • 911 CALLS AND EVENT QUERIES: - 911 call: court order to preserve within 30 days of call, followed by subpoena - Event query: subpoena sufficient, no time limit - Keeper of Records, Office of Emergency Management and Communications, 1411 W. Madison, 60607 • OEMC subpoena unit 312-743-1829

TIP: Slow to respond

Criminal Defense Training

SUBPOENAS • HOSPITAL: – Call to determine method – Need to attach HIPAA release from client or court order

TIP: write “photocopies will suffice in lieu of personal appearance”

Criminal Defense Training

SUBPOENAS • AMBULANCE OR PARAMEDIC REPORT: – Referenced in police reports – Keeper of Records, Chicago Fire Department, 10 W. 35th St. Room 1350, 60616 – Need release (CFD form preferable)

TIP: Watch for if client taken to hospital

Criminal Defense Training

CONTINUANCES • 725 ILCS 5/114-4(a): “The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.” TIP: Be aware of the statute Criminal Defense Training

CONTINUANCES • Generally speaking made orally (not in writing) – Types: • By agreement • Motion state (Defendant may or may not demand trial) • Motion defendant • Order of Court

• File written Motion for Continuance if case is set for trial and need to take off trial call – Motion should include reasons for continuance – May want to advance case to re-set for trial

Criminal Defense Training

DEMAND FOR TRIAL • 725 ILCS 5/103-5: Speedy Trial – File written trial demand – 120 days if in custody – 160 days if out of custody TIP: By agreement dates toll the statute

Criminal Defense Training

PRE-TRIAL MOTIONS • Substitution of Judge: 725 ILCS 5/114-5 – File written motion, must allege prejudice – Must file within 10 days of being placed on the judge’s trial call – Name one judge as of right – If charged with Class X felony, name two – If multiple defendants, each defendant can name one judge as of right

Criminal Defense Training

PRE-TRIAL MOTIONS • Motion to Suppress Confession: 725 ILCS 5/114-11 • Motion to Suppress Evidence Illegally Seized: 725 ILCS 5/114-12

Criminal Defense Training

PLEA NEGOTIATIONS • Prosecutors are authorized to bring, reduce and dismiss charges – Defense attorney has an ethical obligation to tender all offers to client

• Drug cases: offer typically at arraignment • Other cases: Prosecutor usually has to contact complaining witness first Criminal Defense Training

RULE 402 CONFERENCE • Supreme Court Rule 402: the judge can join in the plea negotiations upon agreement of the parties – Client must consent and cannot request a new judge after a conference – Conference may be held at bench or in chambers – Prosecutor will disclose information regarding the allegations and client’s criminal history – Defense attorney should be prepared to present evidence in mitigation – Judge will determine sentence upon plea

Criminal Defense Training

PLEA • Read Supreme Court Rule 402 • Admonish client of rights and consequences: – – – – – – –

Right to plead guilty or not guilty Right to trial (jury or bench) Right to testify or remain silent Right to call and cross-examine witnesses Sentencing range Immigration consequences (Padilla v. Kentucky) Other possible consequences (?)

Criminal Defense Training

PLEA • Written Waivers: Client must sign waivers when pleading guilty – Waive Jury Trial (Felony & Misdemeanor) – Waive Pre-Sentence Investigation (Felony Only) 725 ILCS 5/5-3-1 TIP: Generally located on bench, ask clerk

Criminal Defense Training

TRIAL • File written answer to discovery (Felony) – Usually filed on court date when trial date is scheduled

• Subpoena defense witnesses

Criminal Defense Training

TRIAL • Client has three fundamental rights: – To plead Guilty or Not Guilty – To have a Bench Trial or Jury Trial • For bench, must waive right to jury trial in writing

– To Testify or Remain Silent

• Defense attorney may advise client but client must make ultimate decision Criminal Defense Training

SENTENCING • Pre-Sentence Investigation 725 ILCS 5/5-3-1 • Sentencing hearing 725 ILCS 5/5-4-1 • Factors in aggravation/mitigation 730 ILCS 5/55-3.1 • See handout • See Illinois Sentencing and Disposition Guide by Gino L. DiVito

Criminal Defense Training

DISPOSITIONS •

Dismissals –

SOL (stricken off with leave to reinstate) • •

– –

Prosecutor may seek to reinstate case within 160 days Client will get letter in mail with new court date

Nolle Prosequi: case cannot be reinstated Diversion Programs: dismissal upon completion • •

•

Theft school – first time misdemeanor retail theft; requires attending class on a Saturday morning and paying a fee Drug school – for class 4 or lower with no prior drug offenses; requires attending classes and paying a fee Prosecutor has paperwork; judge must sign

Criminal Defense Training

DISPOSITIONS • Supervision: if client completes successfully, not a conviction (most misdemeanors eligible) • Convictions: – Probation – Conditional Discharge – Incarceration

• Note: prosecutor may request additional conditions, such as SWAP or community service

Criminal Defense Training

POST-TRIAL MOTIONS • Motion for New Trial: 725 ILCS 5/116-1 – Must file written motion • Only issues raised are preserved on appeal

– Must file within 30 days

• Motion to Reconsider Sentence – Must file written motion

Criminal Defense Training

NOTICE OF APPEAL • Must file within 30 days • File in clerk’s office or in trial courtroom – Form is in clerk’s office

• Court can appoint Office of the State Appellate Defender • WARNING: As soon as you file a Notice of Appeal, you divest the trial court of jurisdiction; therefore, you cannot file a Notice of Appeal and then other post-trial motions

Criminal Defense Training