Criminal Defense Basics

Misdemeanor and felony cases in Wisconsin involve several important stages. Because criminal cases involve constitutional rights and potentially significant penalties, they often require several court hearings and take several months to complete. The defendant must attend every court hearing, unless the judge excuses attendance and authorizes the attorney to appear in the defendant's place.
This article is intended to provide general information about the stages of a criminal case. It cannot be used as a guide to self-representation, and it does not substitute for the advice of a qualified attorney.

-Investigation and arrest

Most crimes are not committed in front of police officers. When they do, police officers have the right to arrest the perpetrator without a warrant.
In most cases, police rely on citizens to report crimes and file complaints. After a person files a complaint about an alleged crime, the police investigate the matter by interviewing witnesses, examining evidence and visiting the crime scene.
Police typically interview the suspect. Many crimes are solved simply by the suspect making incriminating statements. If you are the suspect of a police investigation, you do not need to speak to police. You may decline to give a statement or you may have an attorney present during police questioning. These are your constitutional rights.


-Charging decision

Citizens do not have the power to "press charges" or "drop charges." Only the prosecutors in the District Attorney's Office have that power. Victims of crimes are often consulted throughout the prosecution of a case, but they do not have any power to press or drop charges, either.
After police officers finish investigating an alleged crime, they forward their reports to the District Attorney's Office. Prosecutors review and evaluate the reports to determine if criminal charges should be brought. The prosecutor has broad discretion in deciding whether to charge someone with a crime.
If the prosecutor files charges, the defendant receives a summons to appear in court. In more serious criminal cases, prosecutors may seek an arrest warrant so police can take the defendant in custody.
If you are served with a summons, you must appear in court on the date and time indicated on the summons. Failure to appear in court will result in an arrest warrant.


-Initial appearance

The first court hearing is called an initial appearance. In misdemeanor cases, bail or bond is set and the defendant enters a plea to the charges. Prosecutors are very busy and it is unlikely that the prosecutor will be able to discuss the case or negotiate a settlement before the initial appearance. It is best to enter a "not guilty" plea and consult with an attorney.
In felony cases, the defendant does not enter a plea at the initial appearance. Instead, bail is set and the case is scheduled for a preliminary hearing.

People have a constitutional right to be represented by an attorney. Public defenders are available for those who are considered indigent. If you don't qualify for the public defender but you want an attorney, ask the judge for a continuance of your initial appearance so you can retain an attorney. Most judges will grant only one continuance so it is important that you seek an attorney right away.


-Preliminary hearing

In felony cases, the defendant is entitled to a preliminary hearing. The prosecutor must present evidence that the defendant probably committed a felony. The prosecution does not need to prove the defendant guilty beyond a reasonable doubt at this stage of the case. It is only a preliminary hearing.
If the judge believes, based on the evidence presented, that the defendant probably committed a felony, the case is bound over for trial. Very few cases are dismissed at the preliminary hearing for lack of evidence. The defendant, however, can obtain valuable information about the prosecutor's case and the witnesses involved.


-Arraignment

In felony cases, the defendant enters a plea at the arraignment. In misdemeanor cases, the plea is entered at the initial appearance. It is best to enter a "not guilty" plea at this stage unless the defendant has consulted with an attorney who can give advice about the strength of the prosecutor's case, the potential defenses to the charges, the range of possible penalties, and other matters. You do not commit perjury by pleading "not guilty."


-Pretrial conference

The pretrial conference is usually an informal hearing. Judges expect that the prosecutor and the defendants will have talked about the case, exchanged evidence and explored possible settlement. The pretrial conference is designed to update the Judge on the status of the case and schedule motion hearings and trial.


-Motion hearings

The judge holds hearings to consider motions in a case. Motions may seek dismissal of the charges, suppression of evidence, modification of bail, or any number of other issues. Every case does not require a motion hearing. A qualified attorney will be able to determine whether the case would benefit from a motion hearing.


-Plea hearing

Approximately 95% of all criminal cases result in a plea agreement where a defendant enters a plea of "guilty" or "no contest." The plea agreement is made between the prosecutor and the defendant. The Judge has no power to force the prosecutor to make any type of settlement offer. If the prosecutor's settlement offer is unfair or undesirable, the defendant's recourse is to take the case to trial.
There are many options available in plea agreements. In many cases, the defendant will plead guilty to a crime and receive a criminal record, but there are some situations where the defendant will not have a criminal record. Keeping a conviction "off your record" is not available in every case. Most cases where an offense may stay "off your record" involve first-time offenders, young offenders, special circumstances, or minor offenses.
At the plea hearing, the defendant enters a plea of "guilty" or "no contest" to certain charges. A plea must be knowingly, intelligently and voluntarily made. The police or prosecutor cannot coerce the defendant to enter a plea of "guilty" or "no contest." In misdemeanor cases, the defendant is usually sentenced at the same time as the plea hearing. In most felony cases, the defendant is sentenced at a later date.

-Trial

When settlements are not reached, cases go to trial. Everyone has a constitutional right to a trial before a 12-person jury. To be convicted, the jury must unanimously find the defendant guilty beyond a reasonable doubt. The defendant may waive the right to a jury trial, and instead, have a bench trial where the judge decides guilt or innocence.
At trial, the defendant has a constitutional right to present evidence, use subpoenas to compel the attendance of witnesses, and cross-examine the prosecutor's witnesses. The defendant may testify on his or her behalf, but the defendant has the right to remain silent - no one can force the defendant to testify.
If the defendant is found not guilty, the defendant is acquitted of the charges. Constitutional protections against double jeopardy prohibit the prosecutor from charging the defendant with the same crime. If the defendant is found guilty, he or she is sentenced to a punishment.


-Sentencing

At the sentencing hearing, punishment is imposed. The range of penalties depends on the severity of the charges that the defendant was convicted of. The most common penalties can include jail/prison time, fines, restitution, and driver's license suspension/revocation. Judges can also withhold sentence and impose a term of probation, but if the terms of probation are violated, the defendant must return to court for sentencing.
At the sentencing hearing, the prosecutor and the defendant may present evidence on the appropriate sentence. The judge will consider the needs and character of the defendant, the nature of the offense, and the protection of the public. The judge is free to sentence the defendant anywhere between the minimum and maximum sentences available by law. The judge is not bound by any plea agreements that are made between the prosecutor and the defendant.


-Appeals

The defendant may appeal an adverse decision to the Wisconsin Court of Appeals. Appeals are very complex. Appeals are subject to strict deadlines, and the failure to meet those deadlines may result in the loss of the right to appeal. Also, not all of the Court's decisions are capable of being appealed. If the defendant wants to appeal a decision from the trial court, it is best to promptly consult the advice of an attorney.