It is winter break. All the kids are home from college and the oldest of the group bought some beer. The party got out of control and the music got a bit loud. Now it’s the middle of the night and you, the parents, are getting a call because your teenager has been charged with a criminal offense and needs a ride home from the party. Hopefully, this is only a summary offense. While still not good, it could be worse. But what if it is worse? What if your child was arrested for a fight that he had at a bar or for driving under the influence after leaving the bar and charged with a misdemeanor? Allow this two part article to shed some light on what to expect and how to find the right lawyer for the case.
Before moving to the overview of the criminal process, it is of crucial importance to remember these few things when someone you love has been arrested. 1. Do not give a statement to the police without being represented by an attorney. 2. Do not speak about the case to anyone – especially those involved in the case (i.e. other co-defendants, other parents, complaining witnesses, or officers). 3. Take steps to secure competent counsel as soon as possible. 4. Make sure that you inform your child that they MUST be on their best behavior during the pendency of the criminal proceedings (often, one misstep leads to others – this must be stopped in order to ensure the most beneficial outcome in a case).
Grading of Offenses
In Pennsylvania, there are three main gradings of criminal offenses. Summary offenses are the lowest in severity and include disorderly person offenses and underage drinking crimes, among others. The maximum penalty is 90 days. Summaries, while serious, are akin to traffic tickets. The next are misdemeanor offenses. Some common misdemeanors include driving under the influence, simple assault, theft, retail theft and drug possession crimes. The maximum penalty allowable for the most serious misdemeanor offense in Pennsylvania is 5 years. Finally, and most serious, are felony offenses. Common felony charges include larger thefts, drug distribution offenses, aggravated assault, sex offenses and of course homicides of all degrees. The maximum allowable sentence in the most serious felony would be life and prison or the death penalty.
Some of the most common charges high school and college students are charged with are typically underage drinking and disorderly conduct offenses along with misdemeanor drug possession and driving under the influence. Once someone is charged with any crime, it is important to have an understanding of the process that you will go through. Each of the following sections could easily stretch for chapters (if not volumes) – this is designed to provide an overview.
For summary offenses, it is typical to receive a summons in the mail directing the Defendant (the person charged with the crime) to submit their plea in writing to the Court within 10 days. You should plead not guilty if you would like to contest the charge or if you are hoping to negotiate for a lower disposition.
Once the Court date is scheduled you will receive notice of it in the mail. On your day in Court, it is likely that there will only be a police officer present to prosecute the case on behalf of the Commonwealth. He or she will have the ability to negotiate the case as well. In many summary cases (depending on the circumstances, the Judge and the officer) there are diversionary programs or dispositions that may allow your child to complete community service, alcohol treatment, pay restitution, or some other mix of conditions in order to have the charge withdrawn upon completion. (Again, this is typically reserved for first time offenders and differs across jurisdictions and Judges). If there is an issue of fact or law, a trial may occur. Witnesses will be called and cross examined, evidence will be introduced and the Court will issue a verdict.
In the event that there is a conviction in a summary case, the Defendant has thirty (30) days to appeal the conviction to the Court of Common Pleas. In the event that this happens, the case will be listed for a “de novo” trial (meaning “from the beginning”). At this trial listing, the case will be re-litigated as if it was the first time the case was before the Court. It is common for Assistant District Attorneys to be present to represent the Commonwealth instead of just the police officer. It is typical for negotiations and alternative dispositions at these listings. In the event that no agreement can be reached, a trial will again occur, and the Judge will issue a verdict and impose sentence.
Misdemeanor and Felony Cases
More serious offenses. More serious repercussions. More serious concerns. Once someone has been charged with a misdemeanor or felony the process moving forward is much more involved than that of a summary offense. The following is an overview of the main critical stages in a typical criminal case.
The first major court date will be the preliminary hearing. The preliminary hearing will be scheduled before a Magisterial District Judge. At the hearing, depending on the jurisdiction and the charges that are pending, either an Assistant District Attorney or the arresting police officer (the affiant) will be present to prosecute the case. A hearing will be conducted and Commonwealth witnesses will be called. The defense has the right to conduct a limited cross examination of those witnesses. The Commonwealth has the burden to produce “prima facie” (more likely than not) evidence at this level, NOT beyond a reasonable doubt, like at trial. If the Commonwealth meets its burden, the charges will be bound over for the Court of Common Pleas and the case will be placed on a trial or pre-trial list. Some, all or none of the charges may be held depending on the evidence produced. At this level, there are times where negotiations may lead to some charges being withdrawn or the defendant being offered the opportunity to plead to a lesser offense, like a summary. Bail may also be addressed and set by the District Judge.
The next step is the pre-trial phase. During this time period, discovery will be exchanged. The Commonwealth must provide the evidence in their possession, with the exception of a few things. This will give the defense attorney the chance to analyze the evidence pending against the Defendant and determine what investigation needs to be conducted, what evidence should be collected, what witnesses should be interviewed and what the possible defenses to the charges are. It is also during this time that the defense attorney will typically analyze the case for any pre-trial motions. Some of the most common motions are called “suppression motions,” where the defense attorney alleges that the government (the police and members acting on their behalf) violated one or more constitutional rights of the Defendant. An example would be a motion alleging that the police officer did not have the legal justification to stop the Defendant’s vehicle. The pre-trial phase is also typically the time where the Prosecutor will make a plea offer to the Defendant and negotiations regarding potential agreed upon dispositions will take place. If an agreement is reached, the Defendant will plead guilty and the agreed upon sentence will be presented to the Court for approval. The Defendant may also plead “open” which means he/she accepts accountability for the crime but asks the Judge to impose the sentence instead of agreeing on one with the Commonwealth.
If the case is able to make it past any pre-trial challenges by the defense and/or it is not disposed of through a plea, a trial will be scheduled. There are two ways a trial may be conducted. One is in front of a Judge, only. This is called a “bench” trial and the Judge decides all issues with regard to the presentation of evidence AND makes a determination as to guilt or innocence. The other is a jury trial. During a jury trial, the judge will still decide all issues with regard to the presentation of evidence but the jury will make a determination as to guilt or innocence. A verdict must be unanimous across the jurors. While it is often a strategy decision, whether to move forward with a jury or bench trial, it is a decision that the Defendant must make. During the trial phase, evidence will be presented and the witnesses will be examined and cross-examined. The Commonwealth bears the burden of proving each element of the crimes charged beyond a reasonable doubt. If the Commonwealth does not meet the burden in the fact finder’s opinion, the Defendant should be found not-guilty. If the Defendant is found guilty, a sentencing hearing will be scheduled and both sides will have the ability to put forth evidence and make arguments about what they believe the sentence should be. The Judge will then impose sentence.
What to Take Away about the Pennsylvania Criminal Process
The criminal justice process has numerous phases and intricate procedural rules that must be followed. The above information is only a small fraction of the considerations and steps that are involved in each criminal case. When your child has been arrested for any offense, no matter how serious, you should put great thought into hiring a knowledgeable and skilled attorney before ever stepping foot in a courtroom. Your child’s reputation, criminal record, driver’s license and more may all be at stake.
Finally. As a parent you must understand that your child’s attorney only works for your child – not you. Even if you pay the bill, it is the attorney’s obligation to represent the interests and wants of the client only. The client is NOT who paid, it is who is being represented. In practice what that means is that you, as a parent, may not be involved in decision making or strategy process, and the attorney cannot share with you what he and your child speak about. That would all be covered by attorney client privilege. You should be made aware of and be able to discuss anything that is public record and any general procedural issues. Still, the client, your child, is likely going to be told not to discuss the case with anyone, including you, and the attorney will likely inform you that the case will not be discussed with anyone outside of his or her client.
In the next article I will be providing some factors to consider when hiring an attorney to represent your children. Stay tuned.
The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant. The information provided is for informational purposes only and may not reflect the most current legal developments. These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. It is intended solely for informational purposes.
Mike DiCindio is a criminal defense lawyer who represents individuals accused of crimes throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale.