Calculate the Risks
Your success at calculating risk will heavily impact the outcome of your criminal case. Psychologists have long believed that the brain’s judgment-control systems develop more slowly than other systems, not maturing until people are older, rather than younger. Yes, the military is very well aware of these findings!
Should you accept a plea by the State? Should you make a counteroffer to the State? Should you try your case before a jury? These are all important questions that should be answered only after the risk has been calculated.
Procedure in Criminal Cases (State)
The process starts with a crime being reported by a citizen or observed by a law enforcement officer. There may be an investigation depending on the seriousness of the incident. The process of collecting evidence to determine the actual events and the individuals involved can continue right up until trial or plea. The accused or the suspect is charged with a crime and possibly taken into custody, depending on the seriousness of the incident. If taken into custody, we call this an “arrest”. Bond will be set. After an arrest, the accused is given a preliminary hearing. The preliminary hearing is very informal and is really nothing more than a first appearance where the defendant is informed of the charges against them, their constitutional rights, and appointed an attorney if they cannot afford one. If the case is a Misdemeanor, then a court date will be set for District Court. If the case is a Felony it may go to Superior Court either after a probable cause hearing in District Court or by an indictment by a grand jury. Most of the time, if a Felony case goes to Superior Court, it will be by indictment. Sometimes, the Felony may be disposed of in District Court by a plea if the Felony is not serious and the person charged does not have a substantial criminal record.
Once in Superior Court, the accused must be arraigned (plead guilty, not guilty or no contest). If pleading not guilty, then a trial date will be set. Most trials in Superior Court are before a jury of 12 citizens who hear the evidence and render a verdict of guilty or not guilty. Sometimes, the jury is not able to agree on a verdict – we call this a hung jury. If convicted, the defendant is sentenced under the “structured sentencing” laws of North Carolina.
Standards Used at Trial
- The Defendant is presumed to be innocent
- The State has the burden of proof
- The State is required to prove the case beyond a reasonable doubt
Normally, in most cases, the State has to come forward with credible evidence in order for a jury to find a defendant guilty of a crime. However, a reasonable doubt can arise from the evidence not being credible or a reasonable doubt can arise from the lack of evidence. Normally, the deficiency of the State’s evidence will show up as a weakness in one of the elements of the crime. For example, the state’s identification witness has given inconsistent statements as to the physical characteristics of the suspect.
Common Issues that can come up at Trial
- A co-defendant may testify against you after receiving a good deal from the State
- If you decide to testify, you will be asked about certain prior convictions on cross-examination
- Any statements you have made to law enforcement about the case are relevant and admissible most of the time.
Frequently Asked Questions
How could the State get a conviction under such strict standards?
The law has devised a way for the State to be helped at proving its case beyond a reasonable doubt. These ways of helping the State are called presumptions or inferences. There are numerous presumptions and inferences created by statue or legal decision. For example: If a person is found in possession of a forged check and is attempting to obtain money for it – there is a presumption that the person forged the check. As the law has evolved, it has created more and more presumptions to aid the government; this is a natural consequence of big government wanting to control all areas of society. Many years ago the average defendant did not take the stand at trial, but today many juries want to hear from the defendant. Part of the reason for the change has been the increase in the presumptions and inferences. Presumptions and inferences can force a Defendant to testify when they would not normally do so. For example, if a person has been found in possession of stolen property soon after the property was stolen, there is a presumption and an inference that the person is the thief – the jury will get an instruction with the presumption in deciding guilt or innocence. If there is a reasonable explanation, it would need to be told to the jury by the Defendant.
The State is also helped by the tremendous resources that it is able to call on at trial. Experts in gathering and processing evidence for analysis (i.e., SBI, FBI, Medical Doctors, etc.), numerous law enforcement officers, and technological ability to use surveillance.
Exceptions to the hearsay rule now have completely consumed the general rule of no hearsay. Now, the question is: “which exception to the hearsay rule can we use to get the statement into evidence.”
Can I be convicted on circumstantial evidence?
This is how most prisoners get to prison. A lot of the people sitting on death row today were convicted by the use of circumstantial evidence.
When should a case be tried before a jury?
The risk of trial needs to be calculated and then weighed against the State’s evidence. In other words, what is the worst that can happen at trial weighed against the credibility of the State’s evidence?
Contact us today for a free initial consultation:
Greg Kornegay Criminal Defense Attorney Wilmington NC
910-763-5757
Toll Free: 866-579-5757
[email protected]
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Gregory Kornegay,
