Stages of a Felony Case

A felony criminal case will generally go through the following phases:

  • Investigation – During the investigation phase, the police will investigate a suspected violation of the criminal laws. This may be as simple as responding to a 911 call and interviewing all of the people on scene. It could also be more complex and involve weeks of investigation by multiple people, subpoenas, safe-house interview, and more. Unfortunately, sometimes there is little to no investigation done or mistakes are made and, based on bad information, the police make bad decisions about who to charge with a crime, or they over charge something, or they charge someone for something they did not do. Sometimes it helps to have an attorney as soon as possible in the investigation stage to help make sure that there is someone there to help reduce the amount of mistakes that can be made.
  • Arrest/Filing Criminal Complaint – A police officer may choose to arrest someone for a felony offense and file a criminal complaint with a local municipal, magistrate, or metropolitan court. The criminal complaint will contain a very brief factual description of the events leading to criminal charges, the titles of the crimes someone has been charged with, and statutory references for those crimes. That charging document will put into motion a criminal process that has its own momentum and you may soon find yourself caught up in a labyrinth that it is hard to get out of.
  • First Appearance – If an arrest was made without a warrant, you have a right to appear before a judge within 48 hours after arrest for a probable cause determination (i.e. is there probable cause to believe that a criminal offense was committed by the arrested based on the limited information available to the court at the time, which is usually just a statement by a police officer). At a First Appearance the judge will inform the defendant of the following: (1) the offense charged; (2) the penalty provided by law for the offense charged; (3) the right to bail; (4) the right, if any, to trial by jury; (5) the right, if any, to the assistance of counsel at every stage of the proceedings; (6) the right, if any, to representation by an attorney at state expense; (7) the right to remain silent, and that any statement made by the defendant may be used against the defendant; and (8) the right, if any, to a preliminary examination. By law a preliminary hearing shall be held not later than ten (10) days following the initial appearance if the defendant is in custody and no later than sixty (60) days if he is not in custody.
  • Grand Jury or Preliminary Hearing – Prior to a felony case proceeding at the district court level, there needs to be a grand jury proceeding or a preliminary hearing. Some cases will be presented to a grand jury or for preliminary hearing after an arrest and first appearance, or some may begin with presentment to a grand jury or a preliminary hearing. Both proceedings are aimed at a showing that there is probable cause to believe that the accused committed a criminal offense and that the case should continue at the district court level. What most folks need to understand is that it does not take much in the way of evidence for a case to proceed beyond a grand jury or preliminary hearing. For example, at a grand jury proceeding, the proceedings take place behind closed doors, the rules of evidence don’t really apply, the defendant is not allowed to be present while witnesses testify, and often the indictment is based on bad or incomplete evidence. There is an old saying, “A district attorney can indict a ham sandwich,” meaning just about any district attorney can convince a grand jury that a ham sandwich committed a criminal offense.
  • Arraignment – At the arraignment setting the judge will review the grand jury indictment or other charging document, advise you of the charges against you, the possible penalties for those charges, and ask you to enter a plea (guilty, not guilty, not guilty by reason of mental illness, or no contest). If a plea of not guilty is entered, then your conditions of release pending trial will be set. Conditions of release can include, a simple promise by you to come back to court, requiring a money bond to be posted with the court or through a bonding company, a third-party release to family member on their promise to make sure you show up to court, or a property bond. In deciding conditions of release, the court will consider things like; criminal history, ties to the community, the nature of the pending allegations, and the danger presented to the community by having a defendant out of custody.
  • Discovery – Discovery is the stage where the parties exchange information. Because of the power and resources of the State, the prosecutor has a variety of obligations to provide information to the defendant. Also, under the rules, you may also have a right to interview the witnesses to be called against you.
  • Plea Discussions – At some point during a case, a prosecutor will generally make some form of a plea offer. A plea offer is an offer by the prosecutor to dismiss certain charges, or an agreement to a certain sentence or other outcome in exchange for a plea of guilty or no contest by the defendant. Sometimes a plea agreement is not in your best interests or may not be the right thing to do because you are not guilty of the offenses you have been charged with. Whether to accept a plea offer or not is a very important decision and something that you should discuss with your attorney. It is always your decision whether to accept or reject a plea offer. Your attorney can provide helpful advice, but you are the one who must decide what is right for you.
  • Trial – You have a right to a trial on the charges brought against you. You may have a trial before a judge or you may have a right to a trial before a jury. Whether to go to trial or whether to have a bench or jury trial is one of the most important decisions you will have to make. Again, you will need to consult with your attorney regarding these decisions.
  • Appeal – If your case went to trial or if you reserved an issue for appeal by special plea agreement, you may wish to pursue an appeal. Appeals from the district court go to the New Mexico Court of Appeals and then to the New Mexico Supreme Court. The grounds for appeal and whether to appeal or not, will depend on the circumstances of your case.

The criminal justice system can be an unfriendly place and process. Police and prosecutors make mistakes in charging people and in how they handle cases. Witnesses can be biased or mistaken. Constitutional rights are too often belittled as “legal technicalities.” The presumption of innocence can be forgotten in the rush to move cases through the system.

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