What should I know about the criminal justice process in Georgia?

Contents

• What is the criminal trial process in Georgia?
• What are my rights if I am charged with a crime in Georgia?
• What happens before a criminal trial?
• What happens during a criminal trial?
• What happens after a criminal trial?

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What is the criminal trial process?

If you are arrested for a crime, you are now subject to the criminal justice process. Generally, the criminal justice process includes all proceedings and virtually everything that happens from the time a person is suspected of committing a crime, through the prosecution, until the case is over. Once you are charged with a crime, there are two main parts of the process:

• the preliminary proceedings and

• the trial itself.

 

There are a series of steps that must be followed in each case.

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What are my rights if I am charged with a crime in Georgia?

You have rights when you are charged with a crime in Georgia.

• You have the right to enter a plea of not guilty.

• You have the right to a trial by jury or to a bench trial (trial by judge). You can request a jury trial, even for misdemeanor crimes. 

• You have the right to an attorney throughout all trial proceedings.

• If you cannot afford an attorney, you have the right to ask the court to appoint one at no cost to you.

• You have the right to be presumed innocent throughout the court proceedings unless you are found guilty beyond a reasonable doubt.

• You have the right to present evidence in your own defense.

• You have the right to confront witnesses who testify against you at trial.

• You have the right to remain silent at trial or testify in your own defense. Silence cannot be used against you.

• If you are found guilty at trial, you have the right to appeal. 

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What happens before a criminal trial?

Pretrial proceedings include: 

• Booking. After you are arrested, you will be booked at the police station. Booking means there will be a formal record of your name and a list of the crimes you are accused of committing. Usually, after booking, you will be photographed and fingerprinted. You may be taken to jail and given one phone call. 

 

• Initial appearance. The initial appearance takes place in the magistrate court. This must take place within 72 hours if there was a warrant for the arrest. If there was no warrant, it must happen within 48 hours. At the initial appearance:

  • You will be told about the charges against you,

  • The judge will ask you whether you have an attorney or if you need to have one appointed for you. You have the right to have an attorney at all court appearances.

  • The judge will set bail. Bail is a certain amount of money that must be posted with the court. By posting bail, you can avoid having to wait in jail until your trial. The money is a guarantee that you will appear in court for each required court appearance and for the trial. 

    • In Georgia, you cannot post bond if you are accused of a capital crime (i.e. murder, rape, armed robbery). 

    • In some cases, you may be released without paying anything. This is called being released on recognizance or a signature bond.

 

• Preliminary Hearing. This hearing is usually held in magistrate court. In a preliminary hearing, the court is not concerned with whether or not the defendant is guilty. It simply wants to decide if there is enough evidence to indicate that the accused person should be prosecuted. During the preliminary hearing: 

  • Each side introduces evidence. 

  • The prosecution tries to show probable cause. 

  • The defense tries to show lack of it. 

  • If probable cause is established during the preliminary hearing and the case involves a misdemeanor, it is forwarded to the appropriate court, and a trial date is set.

  • If the case concerns a felony, it is forwarded to the district attorney for presentment (presentation) to the grand jury. Presentment may be waived by the defendant, or it may be waived by statute for less severe crimes.

 

• Indictment. In Georgia, all capital felonies must be presented to a grand jury. Certain cases involving other, less severe felonies like shoplifting, credit card transaction fraud, forgery, and entering an auto, are not presented to a grand jury. In these cases, the district attorney may proceed on an "accusation" by filing a written document with the court that allows the case to go forward. If there is a grand jury, it decides whether to accuse you of the crimes charged. It will either issue a “true bill” of indictment or a “no bill” of indictment.

  • If a true bill is issued, the accused is formally indicted and charged with the crime. 

  • If the grand jury feels there is not enough evidence to charge the defendant, it will issue a "no bill." The defendant will then be released and the charges dropped.

 

• Arraignment. The arraignment is held in either state or superior court. It is a formal hearing in which the judge reads the charges against you. Then you are asked for a plea-either guilty or not guilty.

  • If you plead not guilty, a trial date is set. The accused remains out of jail on bail or is released on recognizance or returned to jail until the trial.

    • A special plea of not guilty by reason of insanity may also be entered. This plea is used most often in capital crimes. If this plea is made, the court will have to hear expert testimony from psychiatrists and psychologists.

  • If you plead guilty, the court will set a date for sentencing. First, though, the judge must make sure:

    • Your plea is reasonable, 

    • You were not forced to make it against your wishes,

    • In all probability, you are guilty as charged, and

    • You were given due process. That means that none of your rights were violated during the criminal justice process.

 

What happens during plea bargaining?

Early in this pretrial process, the prosecutor and defense attorney may meet to decide if the case can be settled without going to trial. These efforts are referred to as plea bargaining. Plea bargaining may begin just after you get a lawyer.

 

In plea bargaining, the defense attorney sometimes suggests that you consider pleading guilty to a less serious charge. At other times, the defense attorney may suggest that you plead guilty to the charge in order to receive a recommended sentence by the prosecutor. A recommended sentence might be a sentence that is lighter or more favorable to you that you might get at trial.

 

This plea negotiation usually happens with the judge's knowledge and permission. Judges reserve the right, however, to make up their own minds about a sentence. A judge does not have to follow the agreement reached by the prosecutor and defense attorney.

 

What are pretrial motions?

Defense attorneys may also make use of a number of pretrial motions, which can be quite important. 

• The defense attorney may make a "motion to suppress evidence," claiming that the evidence was obtained illegally.

• An attorney may make a "motion for a continuance" in order to have more time to prepare the case. 

• If an attorney feels the community may be hostile to the defendant, and therefore the defendant might not receive a fair trial, they may make a "motion for a change of venue." This is a request to change the location of the trial.

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What happens during a criminal trial?

Criminal trials, like civil trials, can be divided into six major parts:

• Jury selection. The first step in the process is choosing the jury. This is called voir dire.

• Opening statements. Each side gets a chance to make a statement about the case. The prosecution goes first and then the defendant. 

• Presentation of case. Each side then presents their case. The prosecution goes first and then the defendant. They may call witnesses, cross-examine witnesses and introduce evidence. There are rules about what kinds of evidence will be admitted at a trial. The basic rules are:

  • Facts that tend to help a trier of fact (the jury) arrive at the truth should be admitted as evidence. 

  • Facts that do not aid the jury in the search for truth should not be admitted.

• Closing statements. In closing arguments, both sides comment directly on the evidence and witnesses. They argue the matters they feel have been proven by the evidence. They cannot talk about anything that was not presented as evidence during the trial.

• Jury deliberation. If there is a jury, the jury meets in private to decide the case. 

• Verdict. The verdict is the outcome of the case. 

  • If the verdict is not guilty, you are freed by the court. You cannot be tried again for that particular crime. 

  • If the verdict is guilty, the judge sentences you or calls for a presentence investigation and report. When the report is ready, the judge sets a date to bring you back to court for sentencing.

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What happens after a criminal trial?

If you are found not guilty, that is the end of the criminal proceedings for you. If you are found guilty after a trial, or if you plead guilty to the crime you will be sentenced. There are generally several steps involved in sentencing in Georgia.

• Presentence investigation and hearing. In Georgia, presentence investigations are conducted by the probation officers of the Georgia Department of Corrections. In the presentence investigation, a probation officer compiles data on the defendant's background. This information includes any previous criminal record, plus facts about employment, education, social contacts, and community ties. The judge uses this information in deciding the sentence. In cases involving physical, psychological, or economic injury to the victim, the probation officer may tell the court what impact the crime had on the victim. During the hearing, the judge also listens to both the defense and prosecution presentations concerning the defendant's good and bad qualities.

• Sentencing. In deciding a sentence, a judge has various options, depending on the your crime and its circumstances. The judge may also be influenced by age and criminal history. A judge's options are:

  • Incarceration. To be incarcerated means to be put into jail or prison. A judge may order a jail or prison term within the limits fixed by law for the particular crime.

  • Probation. The judge may put you on probation instead of sending you to prison. Probation might be a treatment program. On probation, you must follow the conditions laid out by the court. These conditions are either "general" or "special." Special conditions relate to the case itself. For example, in a simple battery or stalking case, a special condition might be no contact with the victim. General conditions of probation are those that are required in every case. They include:

    • not violating any law;

    • avoiding injurious and vicious habits;

    • avoiding persons and places of disreputable or harmful character;

    • reporting to the probation officer as directed;

    • working faithfully at suitable employment; and

    • not moving, not moving outside the jurisdiction of the court, or leaving the state for any period without prior permission of the probation officer.

  • Community service. The judge can require you to do some form of community service in the city or county where you live or were convicted. The service is usually arranged through the probation department, and it can be any service the judge orders.

  • Fines. A fine is a cash payment to the court. For misdemeanors,you usually pay a fine instead of serving a jail or prison sentence. For felonies, such as drug cases, you are often heavily fined in addition to serving a prison term.

  • Restitution. Restitution means paying the victim for damages. Restitution may be made by returning the amount of money or property stolen. In the case of injury, restitution is made by paying the victim for the cost of medical treatment. In the case of damage to property, restitution is made by paying for necessary repairs or replacement of the property.

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Contents

• What should I do if I am charged with a crime?
• What can I do if I am convicted of a crime?

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What should I do if I am charged with a crime?

If you are charged with a crime, you should consult a lawyer immediately. You may have defenses to the charges or be able to reach a plea agreement. An attorney can help you figure out your options and guide you through the criminal justice process.

 

If you cannot afford an attorney, the court must appoint one for you.

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What can I do if I am convicted of a crime?

If you are convicted at trial, you have the right to appeal. Consult an attorney to help you understand your rights.

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