Burgfechtel & Parent - Wisconsin Criminal Law

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CRIMINAL LAW 101

When a person violates criminal law, there is always the possibility that he or she can be sent to jail or prison. There are two kinds of criminal offenses: felonies and misdemeanors. In Wisconsin, the main difference between a felony and a misdemeanor is the possible location of imprisonment and the length of time a person can be imprisoned. A person convicted of a felony (a felon) is generally held in prison for the duration of his or her sentence, while a person convicted of a misdemeanor is usually held in jail. There are sentences available for both felonies and misdemeanors that do not include incarceration, such as probationary periods. Felonies carry longer potential sentences (years) then misdemeanors (months or even days).

A criminal case begins with a law enforcement officer making an arrest. The officer arrests a person for an alleged violation of the law. That officer must have a warrant in order to arrest a person. In order to obtain a warrant, the officer must show a judge that there is probable cause to make an arrest. In circumstances where it is not practical for the officer to obtain a warrant, he or she will have to show probable cause for the arrest in court at a later time. Warrantless arrests are presumed to be illegal unless probable cause can be established. Failure on the part of the government to show probable cause usually results in the dismissal of the charges.

Bond becomes the next issue after arrest and booking at a police station. Bond is set for two reasons: 1. to ensure that a person returns to appear in court and 2. to protect the community from potential danger. In misdemeanor cases, a person can usually “bail” (bond) out of the police station within hours. In felony cases, a bond hearing is required by law. Such a hearing usually happens within 24 hours of being charged with a felony offense. If possible, one should have their attorney appear with them at a bond hearing. A prosecutor will present their case for a high bond to a judge. The defense will have an opportunity to argue for a lower bond and to gather important information about the case. Once bond is set, it can be modified by the court later in the case under certain circumstances.

Discovery is the collection of evidence and information relevant to the case that is generally to be shared between the defense and the prosecution prior to trial. Discovery can be an ongoing process throughout the case with both sides conducting investigations. When the prosecutor and defense counsel are ready, they can meet to discuss the evidence in a case in an effort to reach an agreement to settle or “plea bargain” the matter before a trial. If an agreement is reached, the case will come to an end in court where the defendant enters a plea of guilty or no contest to the charges and the agreed upon sentence is imposed by the court. If the parties are unsuccessful in their efforts to reach an agreement, then the case remains a contested matter.

Probable cause is normally the first issue addressed in a contested criminal case. Remember, in order to get a warrant or make a warrantless arrest, a law enforcement officer must demonstrate probable cause to make that arrest. Probable cause consists of the information the officer had at hand before making the arrest that gave him reason to think a person had committed or was committing a crime. An officer has to be able to articulate his reasons to the court for a finding of probable cause. A hunch or suspicion of criminal activity is usually not enough to give an officer probable cause for an arrest. That being said, the officer does not have to have all of the evidence necessary for a conviction prior to arrest. The officer can investigate after an arrest to collect further evidence of a crime(s).

Probable cause for a warrantless arrest is determined in a hearing before a judge. The prosecution makes its case for probable cause and the defense argues aginst such a finding. The defense can also use the hearing to gather more information about the case and evaluate police witnesses. If an officer(s) cannot explain there reasons for an arrest or if there was not enough evidence for probable cause, the case is normally dismissed. If, however, there is a finding of probable cause, the case can proceed to pretrial motions and trial.

It is important to note that a plea bargain can be reached at any time prior to trial and even before the close of the prosecution’s case in a trial.

Pretrial motions are petitions made to the court, usually concerning evidence, before a trial. Defense counsel can ask the court to eliminate evidence from trial for a wide variety of reasons. Hearings are held by the court to determine whether that evidence should be suppressed from trial. If a prosecutor’s entire case rests on a confession that gets suppressed after a pretrial hearing, the case is, essentially over, and the defendant will likely be found Not Guilty. If the defense loses the hearing(s), the case will then proceed to trial.

A trial is held to determine whether a criminal defendant is Guilty or Not Guilty of an offense beyond a reasonable doubt. Opening statements are made by both sides introducing their cases to the judge or jury. The prosecution must present their case. If they do not, the defendant will be found Not Guilty or a motion for summary judgment will be granted and the case will be over in favor the defense. Consequently, the prosecutor presents his case first. He introduces witnesses and other evidence that support his positions and arguments. The defense is then allowed to present its case. The goal of the defense is to establish reasonable doubt in the mind(s) of the judge or jury who is deciding the case. The defense may choose to rest after the prosecution’s case and make arguments or they may introduce witnesses and other evidence necessary to raise reasonable doubt in the minds of the judge or jury. Once the defense rests, both parties make closing arguments. The judge or jury then deliberates and delivers a verdict. If there is a finding of NotGuilty, the defendant goes free and the case is finished. If there is a finding of Guilty, the case is usually set over for a sentencing hearing.

A sentence is what a guilty party receives as punishment from the court as part of a plea bargain or after a finding of Guilty after trial. There are many factors to be considered when the court determines a sentence. A person’s criminal history, education, family, employment, mental state and physical condition are a few of these factors that a court considers before sentencing a criminal defendant. Often, a pre-sentence investigation and report are ordered by the court. The report provides the court with information needed to give a just sentence.

Appeals can be made from a finding of Guilty. Any and all appeals must be filed in a timely manner. A timely notice of appeal must be given to the court as well. A person can appeal from a finding of Guilty for a number of reasons. A person can also appeal from a sentence the defendant feels is unfair or extreme. All issues on appeal must be preserved at the trial level or else they are waived. Issues of ineffective assistance of counsel can be entertained at the appellate level.