Criminal Defense Training - Illinois Legal Aid · Criminal Defense Training For Pro Bono Attorneys...

Criminal Defense Training For Pro Bono Attorneys

John Benson, Director of Criminal Defense Marissa Claxon, Staff Attorney

Shannon Murphy, Attorney Fellow

ARREST & DETENTION

• Most criminal cases are initiated by arrest – Some misdemeanor cases may be initiated by

summons (letter in mail)

• After arrest, detained at police station – Investigation: crime and person

• If charged: – Misdemeanor cases: often receives bond at police

station

– Felony cases: transferred to Central Bond Court

Criminal Defense Training

BOND

• Central Bond Court: 773-869-5849 – 2650 S. California Ave, Room 100

– 11:45 am (11:00 am on weekends)

• 725 ILCS 5/110-5: Determining the amount of bail and conditions of release

TIP: Pre-trial Services report


BOND

• 725 ILCS 5/110-6: Bond increases and

denial of bail

– (a) verified

– (a) new facts

– (c) reasonable notice

TIP: courtroom idiosyncrasies


FORMAL CHARGING

• 725 ILCS 5/111-1: Method of

prosecution

1. Complaint

2. Information

3. Indictment


FORMAL CHARGING

• 725 ILCS 5/109-3.1: Timeframe

– 30 days from custody

– 60 days from arrest (on bond)

TIP: Not practically enforceable


FORMAL CHARGING

• 725 ILCS 5/111-3: Form of Charge

1. Examine charging document

2. Read statutes


FORMAL CHARGING

• 725 ILCS 5/111-5: Formal Defects

1. Examine charging document

2. Read statutes

TIP: Complaint law is highly specific. It is

based on notice and jeopardy.


PRELIMINARY HEARING

• 725 ILCS 5/109-3: preliminary examination – (a) probable cause

– (b) hearing

– (c) witnesses called

– (d) motion to suppress*

TIPS: 1. Ask open-ended questions

2. Ask foundational questions

3. File written trial demand


PRELIMINARY HEARING

• Must order and pay for transcript

– 26th Street: 773.674.6065

– Branch Courts: 312.603.8404

• 725 ILCS 5/111-2(a): Waiver

– Diversion Programs

– Plea


PRELIMINARY HEARING

• 725 ILCS 5/112-4 (b)

• WARNING: after a finding of no probable

cause, prosecutors may seek to indict

TIP: Consider early plea negotiation


GRAND JURY

• 725 ILCS 5/112-6: Secrecy of proceedings

• 725 ILCS 5/112-7: Transcript


FINDING OF PROBABLE CAUSE

• 21 days after a finding of probable cause,

the case continued for assignment

- Chief Judge’s courtroom

- 2650 S. California Ave, Room 101

TIP: No wiggle room


INDICTMENT

• Generally, defense learns of indictment in

preliminary hearing courtroom

• Case continued for assignment

TIP: wiggle room


ASSIGNMENT

• Chief Judge – Room 101

• Call beings at 9:00 am sharp

• Case immediately assigned to courtroom

in building OR given date for assignment

in Bridgeview or Skokie

TIP: Can call clerk day before to determine

where case is assigned (773-869-3157)


ARRAIGNMENT

• 725 ILCS 5/113-1: Procedure at

arraignment – File Appearance and Motion for Discovery

• Arraignment “magic words”: – Seek leave to file appearance

– Waive formal reading

– Enter a plea of not guilty

– Request a by agreement status date


DISCOVERY

• Supreme Court Rules 411 – 415

• Initiation (Rule 411): starts at arraignment

• Felony: tendered at court

• Misdemeanor: sent in mail (business card)


DISCOVERY

• Non-exhaustive list of basic discovery from state: - Incident Report

- General Offense Report

- Arrest Report

- Supplemental Report

- Detective Supplemental Report

- General Progress Report

- Detective Close-Out Report

Rule 412: Disclosure to the accused – State must provide defense with written answer (Read entire rule)


DISCOVERY

• Important rules for obtaining additional

discovery:

– Rule 412(f) flow of information and (g) other

governmental personnel: Burden on state

– Rule 412(h): Discretionary disclosure: Judge

can order (catch-all)


DISCOVERY

• Defense must file a written answer (Felony)

• Rule 413: Disclosure to prosecution

– Answer Must Include:

• Affirmative defenses – insanity, self-defense, intoxication

(voluntary or involuntary)

• Alibi – place

• Witnesses and written statements of witnesses

• Known Convictions of witnesses

• Physical Evidence and Scientific Reports


DISCOVERY

• Rule 415: Regulation of Discovery

– (a) Investigations Not to be Impeded

– (b) Continuing Duty to Disclose:

If new information is learned, must notify


SUBPOENAS

• Returnable to court on next court date

• No fees

• Compulsory process – 6th Amendment


SUBPOENAS

• POLICE:

– 3510 S. Michigan Avenue, 60653

– Records: Keeper of Records

– Appearance: Police Officer (star number)

• 72 hours notice for appearance

– Delivery rules change, call subpoena unit

• CPD subpoena unit 312-745-5603


SUBPOENAS

• EVIDENCE TECHNICIAN PHOTOS:

– E.T. referenced in police reports

– Subpoena: Keeper of Records, Graphic Arts

Department, 3510 S. Michigan Ave 60653

TIP: subpoena on your own


SUPBOENAS

• 911 CALLS AND EVENT QUERIES:

- 911 call: court order to preserve within 30

days of call, followed by subpoena

- Event query: subpoena sufficient, no time limit

- Keeper of Records, Office of Emergency

Management and Communications, 1411 W.

Madison, 60607 • OEMC subpoena unit 312-743-1829

TIP: Slow to respond


SUBPOENAS

• HOSPITAL:

– Call to determine method

– Need to attach HIPAA release from client or

court order

TIP: write “photocopies will suffice in lieu

of personal appearance”


SUBPOENAS

• AMBULANCE OR PARAMEDIC REPORT:

– Referenced in police reports

– Keeper of Records, Chicago Fire Department, 10 W. 35th St. Room 1350, 60616

– Need release (CFD form preferable)

TIP: Watch for if client taken to hospital


CONTINUANCES

• 725 ILCS 5/114-4(a): “The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.”

TIP: Be aware of the statute


CONTINUANCES

• Generally speaking made orally (not in writing) – Types:

• By agreement

• Motion state (Defendant may or may not demand trial)

• Motion defendant

• Order of Court

• File written Motion for Continuance if case is set for trial and need to take off trial call – Motion should include reasons for continuance

– May want to advance case to re-set for trial


DEMAND FOR TRIAL

• 725 ILCS 5/103-5: Speedy Trial

– File written trial demand

– 120 days if in custody

– 160 days if out of custody

TIP: By agreement dates toll the statute


PRE-TRIAL MOTIONS

• Substitution of Judge: 725 ILCS 5/114-5

– File written motion, must allege prejudice

– Must file within 10 days of being placed on the judge’s trial call

– Name one judge as of right

– If charged with Class X felony, name two

– If multiple defendants, each defendant can name one judge as of right


PRE-TRIAL MOTIONS

• Motion to Suppress Confession: 725

ILCS 5/114-11

• Motion to Suppress Evidence Illegally

Seized: 725 ILCS 5/114-12


PLEA NEGOTIATIONS

• Prosecutors are authorized to bring, reduce and dismiss charges

– Defense attorney has an ethical obligation to tender all offers to client

• Drug cases: offer typically at arraignment

• Other cases: Prosecutor usually has to contact complaining witness first


RULE 402 CONFERENCE

• Supreme Court Rule 402: the judge can join in the plea negotiations upon agreement of the parties – Client must consent and cannot request a new judge

after a conference

– Conference may be held at bench or in chambers

– Prosecutor will disclose information regarding the allegations and client’s criminal history

– Defense attorney should be prepared to present evidence in mitigation

– Judge will determine sentence upon plea


PLEA

• Read Supreme Court Rule 402

• Admonish client of rights and consequences: – Right to plead guilty or not guilty

– Right to trial (jury or bench)

– Right to testify or remain silent

– Right to call and cross-examine witnesses

– Sentencing range

– Immigration consequences (Padilla v. Kentucky)

– Other possible consequences (?)


PLEA

• Written Waivers: Client must sign waivers

when pleading guilty

– Waive Jury Trial (Felony & Misdemeanor)

– Waive Pre-Sentence Investigation (Felony

Only) 725 ILCS 5/5-3-1

TIP: Generally located on bench, ask clerk


TRIAL

• File written answer to discovery (Felony)

– Usually filed on court date when trial date is

scheduled

• Subpoena defense witnesses


TRIAL

• Client has three fundamental rights:

– To plead Guilty or Not Guilty

– To have a Bench Trial or Jury Trial • For bench, must waive right to jury trial in writing

– To Testify or Remain Silent

• Defense attorney may advise client but client must make ultimate decision


SENTENCING

• Pre-Sentence Investigation 725 ILCS 5/5-3-1

• Sentencing hearing 725 ILCS 5/5-4-1

• Factors in aggravation/mitigation 730 ILCS 5/5-

5-3.1

• See handout

• See Illinois Sentencing and Disposition Guide

by Gino L. DiVito


DISPOSITIONS

• Dismissals – SOL (stricken off with leave to reinstate)

• Prosecutor may seek to reinstate case within 160 days

• Client will get letter in mail with new court date

– Nolle Prosequi: case cannot be reinstated

– Diversion Programs: dismissal upon completion • Theft school – first time misdemeanor retail theft; requires

attending class on a Saturday morning and paying a fee

• Drug school – for class 4 or lower with no prior drug offenses; requires attending classes and paying a fee

• Prosecutor has paperwork; judge must sign


DISPOSITIONS

• Supervision: if client completes successfully,

not a conviction (most misdemeanors eligible)

• Convictions:

– Probation

– Conditional Discharge

– Incarceration

• Note: prosecutor may request additional

conditions, such as SWAP or community service


POST-TRIAL MOTIONS

• Motion for New Trial: 725 ILCS 5/116-1

– Must file written motion

• Only issues raised are preserved on appeal

– Must file within 30 days

• Motion to Reconsider Sentence

– Must file written motion


NOTICE OF APPEAL

• Must file within 30 days

• File in clerk’s office or in trial courtroom – Form is in clerk’s office

• Court can appoint Office of the State Appellate Defender

• WARNING: As soon as you file a Notice of Appeal, you

divest the trial court of jurisdiction; therefore, you cannot file a Notice of Appeal and then other post-trial motions


Criminal Defense Training - Illinois Legal Aid · Criminal Defense Training For Pro Bono Attorneys...

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