Criminal Law Procedure


Generally speaking, the criminal defendant is indicted for the crime, usually by a grand jury. They decide whether there is enough evidence to warrant going through with a prosecution. You may hear on TV that “the grand jury met.” Although there are significant differences between states and the federal government, the basic premise is that the group of citizens is empaneled for a period of time to act as the first gatekeeper of criminal justice. They receive a very one sided presentation of the case from the lawyer employed by the governmental entity prosecuting the case. Practicing as an injury lawyer now, I look back in disgust at the how unbalanced the playing field is in favor of the prosecution. The only thing the defendant has is the presumption of innocence and if there are any priors, then the jury ignores the standard.

The group of citizens then decides if there is enough evidence for them to issue the indictment. If no, that is usually the end of the case. If they decide to go forward, then the defendant is indicted and the prosecuting attorney (a District Attorney in Superior Court in Georgia, a Solicitor in State and most Municipalities, sometimes a City Solicitor) takes the case from there.

From there, cases diverge wildly. Some complex cases involve numerous motions to supress (keep evidence away from the jury) notices of introducing evidence of prior crimes and so forth. Each case is different and I will not be providing an exhaustive treatment of the subject here. Suffice it to say that in most criminal cases in Georgia, there is very limited discovery and no such thing as depositions except in unusual circumstances.

There are three basic outcomes to a criminal trial. Guilty. Not Guilty and a hung jury. If the defendant is guilty in Georgia then the Judge decides the sentence based on the criminal code and their review of any mitigating or exacerbating circumstances.

Many criminal cases then go into appeal status while various alleged mistakes by the Court are argued.

If the defendant is found not guilty, that is generally the end of the matter.

If there is a hung jury, that means that the jury could not unanimously decide the outcome of the case despite repeated requests from the judge. In most cases, the prosecutor will begin the trial process over again and it is just a delay.

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