|
| |
A crime committed against a
person violates state law (though in certain circumstances it may also violate
federal law), and thus, is a crime against the state. In Missouri, the prosecuting
attorney for the county in which the crime occurred usually handles the case.
The following information pertaining to criminal procedure, while specific to
Missouri, is generally applicable to criminal prosecutions in most states. Differences
may include the applicable time periods for filing notices of appeal or bringing
post-conviction proceedings, and in the type of post-conviction actions available.
In a criminal case, the state has the burden of proving beyond a reasonable doubt
that the defendant committed the alleged crime. Defendants are presumed innocent
and never have the burden of proving their innocence.
- INVESTIGATION
- Law enforcement personnel
are responsible for investigating reports of criminal activity, gathering
evidence upon such reports, making arrests if supported by that evidence,
and presenting the evidence to the prosecuting attorney for consideration
of further action. As a result of a police or sheriff's investigation, the
following outcomes are possible: the law enforcement authority may decide
that a crime has not occurred as defined under state law, they may determine
that there is insufficient evidence to pursue the complaint, or one or more
persons may be arrested and the matter referred to the appropriate prosecutor's
office. Any arrest made prior to the issuance of a warrant requires that the
person be released within 20 hours from the time of arrest unless a warrant
is issued.
- COMPLAINT AND ARREST
- If there is evidence
upon which the police deem constitutes an offense and is sufficient to identify
a suspect, the matter is taken before the prosecuting attorney. As the legal
representative for the State of Missouri in the county in which he was elected,
the Prosecuting or Circuit Attorney must then determine whether and what formal
charges to file. This is what is commonly referred to as "prosecutorial discretion."
- Once a formal charge
has been filed, usually in the form of a complaint, the prosecutor can go
to a judge to obtain an arrest warrant. The court issues the warrant if there
are sufficient facts to show probable cause that a felony has been committed
by the defendant. This arrest warrant will allow local law enforcement officials
to arrest the person named in the warrant on the suspicion that he has committed
the crime set forth in the complaint.
- PRELIMINARY HEARING (not
held for misdemeanor cases)
- Felony cases begin with
a preliminary hearing -- a proceeding in which testimony is taken under oath.
The defendant may waive a preliminary hearing. If the defendant chooses to
proceed with a preliminary hearing, the judge, the defendant, the defendant's
attorney, the prosecutor, and any victims or witnesses subpoenaed will attend.
- At the preliminary hearing,
the prosecutor presents evidence to show the judge that there is reasonable
cause, or reason to believe, a crime was committed and that it was committed
by the defendant.
- The defense attorney
can cross-examine the state's witnesses and produce evidence. If reasonable
cause is established, the judge will order the defendant to be "bound over"
for trial. If the defendant waives the preliminary hearing, the case usually
will be sent directly to circuit court for trial.
- If the judge decides
that reasonable cause has not been established, the court dismisses the case
and the defendant is released. This also may occur if witnesses fail to appear
to testify. In some cases the prosecutor can later file another complaint
against the defendant, based on the same crime.
- At any point during the
prosecution, the prosecutor may decide to voluntarily dismiss the charges.
This is called a "nolle prosequi."
- GRAND JURY
- A grand jury replaces
the preliminary hearing in certain cases as a method by which criminal charges
can be filed. A grand jury is comprised of a panel of private citizens, chosen
in a manner similar to the way in which trial juries are chosen, whose job
is to look into allegations of criminal activity. Not every county in Missouri
has a grand jury.
- The prosecutor presents
evidence to the grand jurors who decide whether a crime was committed and
if the defendant could have committed it. Proceedings are closed to the public,
in order to: 1) prevent the accused from absconding prior to his indictment
and arrest or in tampering with the witnesses against him; 2) prevent disclosure
of derogatory information against an accused who is not indicted; 3) encourage
victims and witnesses to come before the grand jury without fear of retaliation;
and 4) encourage grand jurors to engage in uninhibited investigation and deliberation.
The accused does not have the right to be present unless subpoenaed, and may
not present evidence on his own behalf. The grand jury has the power to issue
a subpoena ad testificandum to compel the testimony of a witness, as well
as a subpoena duces tecum that compels the production of documents and other
tangible evidence. As with a preliminary hearing, the case is either "bound
over" to the circuit court or the defendant is freed.
- BAIL
- A person charged with
a bailable offense may be released pending trial on his personal recognizance
unless the judge determines that such a release would not reasonably assure
the appearance of the person as required. If a preliminary hearing is held
and the defendant is bound over for trial, the issue of bail is addressed
at that time. If there is not a preliminary hearing but instead an indictment
is handed down from a grand jury, bail is addressed at the defendant's arraignment
(see following section). Upon determining that the defendant can be released
with reasonable assurance that he will appear as required, the judge may release
the person on bail by imposing any number of conditions as specified under
state law, (§
544.455, RSMo (1994)).
- Release on bail is not
available for "capital offenses" -- i.e., where the accused is subject to
punishment by death.
- ARRAIGNMENT
- This is the first formal
presentation of charges to the defendant, who must enter a plea. Also, the
judge can raise or lower the defendant's bond, if any. The arraignment is
open to the public.
- After arraignment, an
assistant prosecuting attorney is assigned to the case (in the case of larger
prosecutor offices). In some cases, the same prosecutor will be assigned from
the onset and the case is added to a judge's docket.
- The court sets a trial
date and hearing dates on pretrial motions. The trial date may change because
of requests for continuances in the case or because of other cases on the
trial docket for that day.
- PRETRIAL MATTERS
- Discovery
"Discovery" refers to
the process in which the State and the defense have the opportunity to obtain
various information before trial. The purposes of the discovery rules are
to provide the defendant with sufficient information to make an informed
plea, to encourage thorough trial preparation, to avoid surprise at trial,
to conserve judicial and professional resources, and to expedite case processing.
Under the United States Constitution, the State must disclose to the defense
exculpatory information -- i.e., information that is material to either
the issue of guilt or punishment. The evidence is discoverable whether it
constitutes impeachment evidence or is directly exculpatory, provided that
there is a reasonable probability that the outcome of the trial would have
been different if the evidence had been disclosed.
Missouri state law also requires the disclosure of certain information (Missouri
Supreme Court Rules 25.03 and 25.05), and if certain conditions are met,
additional discovery may be permitted (Missouri Supreme Court Rules 25.04
and 25.06). A defendant may obtain the deposition of any person (Missouri
Supreme Court Rule 25.12). When a child (a person under age seventeen) is
the victim of an offense against the person, a victim of a sexual offense,
or a victim of an offense against the family, the court upon motion of the
prosecuting attorney, may exclude the defendant from any or all deposition
proceedings (§
491.685, RSMo.). Certain matters are expressly not subject to discovery
pursuant to state law (Missouri Supreme Court Rule 25.10). In addition,
the trial court may issue special protective orders upon motion and for
good cause shown (Missouri Supreme Court Rule 25.11).
- Plea Bargaining
"Plea bargaining" is
the process in which the prosecution makes charging and sentencing concessions
in exchange for a plea of guilty. The reasons for not taking a case to trial
are varied, but generally may involve one or more of the following: to avoid
further trauma to the victim -- for example, when the victim is a child
who was sexually assaulted; when the victim, though prepared to testify,
would prefer to put the entire matter behind him or her; in the case that
the evidence is sufficient to support a conviction but other factors, such
as issues of credibility, weigh in favor of accepting a plea; or where the
defendant agrees to cooperate with the State in the prosecution of a co-defendant.
Under Missouri law, the prosecutor may agree to any one of the following:
1) dismissal of other charges; 2) recommending or agreeing not to oppose
the defendant's request for a particular sentence; 3) agreeing that the
particular sentence is the appropriate result; or 4) making a recommendation
for or agreeing on another case disposition. The trial court is not required
to accept a plea agreement, but if the court rejects the agreement, the
defendant must be given the opportunity to withdraw his guilty plea. To
be valid, the guilty plea itself must be entered "knowingly, intelligently,
and voluntarily."
- Continuance
A criminal proceeding
may be continued for what is referred to as "good cause shown."
- TRIAL
- Noncapital
In all criminal cases,
trial may be before a judge or jury, depending upon whether the defendant
waived his right to a jury trial. Except in the case of a first degree murder
trial where the death penalty is sought, all jury-tried cases include a
general voir dire (jury selection procedure) and a guilt-phase. The jury
may recommend a sentence unless the defendant is subject to sentencing solely
by the court.
- Capital
Only in the case of
first degree murder can the state seek the death penalty. First degree murder
requires that the defendant acted with deliberation. (§ 565.020,
RSMo.).
In a capital case jury selection occurs in two phases -- death qualification
and general voir dire. During the death qualification voir dire, both the
state and the defense may question venire men (prospective jurors) about
their views on capital punishment. Both the State and the defense are entitled
to an array of jurors that can consider the full range of punishment, including
life without the possibility of probation or parole and death. A venire
man is subject to a strike for cause when his or her views would substantially
affect the ability to perform his or her duties as a juror. Through general
voir dire, the parties may ask the venire men questions to understand their
background, which aids in the exercise of the peremptory challenges (for
any reason or no reason at all) each party has.
Following voir dire is the guilt phase of the trial. Before presenting evidence,
the prosecutor must make an opening statement, summarizing the evidence.
The defense may make an opening statement after the prosecutors', or may
elect to make their opening statement before presenting its own evidence.
If the jury returns a guilty verdict, only then does the trial enter the
penalty phase. Just as with the guilt phase, the prosecutor first makes
an opening statement, and the defense may do so thereafter or at the beginning
of its case. The State then presents evidence to establish beyond a reasonable
doubt the existence of at least one aggravating circumstance (§
565.032, RSMo.) that renders the defendant death penalty-eligible. The
defense then has the opportunity to produce evidence in mitigation.
- Pre-sentence Investigation
Before sentencing, the
state Board of Probation and Parole may investigate to determine if the
defendant is an appropriate candidate for probation (if eligible) and may
make a recommendation to the judge.
Victims are asked to make victim impact statements describing how the crime
has impacted their lives. The statements will be included in the pre-sentence
investigation report.
- Motion For New Trial
A new trial may be granted
upon "good cause shown" by the defendant. The motion for new trial must
be filed within ten days from the date of conviction unless the trial court
grants a one-time extension of fifteen additional days.
- Sentencing
For each crime, the
statute creating the offense specifies a range of punishment, such as "five
to fifteen years imprisonment."
If the defendant was sentenced by a jury, i.e., the jury recommended a sentence,
the judge cannot increase the punishment specified by that jury but can
reduce it. In some cases where the defendant has prior criminal convictions,
the jury does not consider punishment. Instead, the judge decides the sentence
to be imposed.
The defendant may be jailed, imprisoned, or placed on probation. While the
state Department of Corrections operates and is responsible for offenders
sentenced to a term of imprisonment of one year or more within the state
prison system, a sentence of less than one year generally is served in a
county jail. If a defendant is sentenced to imprisonment, that sentence
will be stated as a specific term of days or years, such as "fifteen years
imprisonment." The court may, however, suspend execution of the sentence
and place the defendant on probation subject to specified conditions. In
addition, and generally only upon a guilty plea, the court may decide not
to sentence the defendant to a term of imprisonment but to suspend imposition
of the sentence and place the offender on probation. The defendant also
may be ordered to make restitution, to pay court courts, and to pay a fine.
Under Missouri law,
§ 558.011, RSMo sets the applicable terms of imprisonment, and
§
560.016, RSMo provides for any applicable fines. A sentence on a felony
conviction includes both a term of incarceration and a conditional release
term, unless the conviction is on a dangerous felony (including arson in
the first degree, assault in the first degree, forcible rape, forcible sodomy,
kidnapping, murder in the second degree, and robbery in the first degree),
or involves the defendant's fourth or subsequent commitment to the Department
of Corrections. The conditional release term refers to the conditional discharge
of the inmate by the Missouri Board of Probation and Parole, subject to
certain conditions. The length of the conditional release term is determined
by the length of the sentence:
- one-third for
terms of 9 years or less
- 3 years for terms
between 9-15 years
- 5 years for terms
of more than 15 years
An inmate may be incarcerated beyond the length of the conditional release
date if certain conditions are met. In addition, the trial court may extend
a sentence in the case of offenders who have pled guilty or been found guilty
of committing one or more felonies, is found to be a dangerous offender
as defined by
§ 558.016.4 RSMo, or is found to be a persistent sexual offender,
having previously been convicted of forcible rape, statutory rape in the
first degree, forcible sodomy, statutory sodomy in the first degree, or
an attempt to commit any of those offenses.
Multiple sentences run concurrently (at the same time) unless the court
specifies that they are to run consecutively (one after the other). But
in the case of multiple offenses including the felony of rape, forcible
rape, sodomy, forcible sodomy, or an attempt to commit any of those offenses,
the sentence(s) on the sexual offense(s) must run consecutive to the other
offense(s).
A defendant will receive credit for the time he or she served in jail or
prison awaiting trial, to the extent that the incarceration was not time
served on a different, unrelated offense.
The victim or family of a deceased victim has the right to give a victim
impact statement prior to sentencing, §
557.041 and to be present and to make a statement at the sentencing
hearing. §
595.209, RSMo
- CHALLENGES TO THE CONVICTION
AND/OR SENTENCE
- Direct Appeal
The State cannot appeal
from a judgment of acquittal. If found guilty, under Missouri law the defendant
must appeal the decision within ten days after the court officially pronounces
the sentence and enters the sentence and judgment. In capital cases, i.e.,
where the death penalty has been imposed, the appeal goes directly to the
Missouri Supreme Court. Otherwise the appeal goes to the Missouri Court
of Appeals, either the Eastern, Western, or Southern District. The Attorney
General for the State of Missouri represents the State in all felony appeals.
Any victim desiring to be apprised of the appellate procedure and case status
must make the request in writing to the Missouri
Attorney General's Office. If the appeal is from a misdemeanor conviction,
the prosecuting attorney for the particular county that the conviction arose
will represent the State. Upon affirmation of the judgment of conviction
and sentence, the defendant can present to the United States Supreme Court
federal constitutional claims in a petition for writ of certiorari (also
referred to as a "cert. petition"), but such review is entirely discretionary.
- Post-conviction Motions
Under Missouri Supreme Court Rules 24.035 and 29.15
Missouri Supreme Court
Rule 24.035 (applicable in the case of a guilty plea) and Missouri Supreme
Court Rule 29.15 (applicable in the case of a guilty verdict following a
jury or bench trial), provide the exclusive remedy for seeking
post-conviction
relief from a judgment of conviction and sentence alleged to violate the
constitution and laws of Missouri, the constitution of the United States,
a sentence in excess of the statutory maximum, or that the sentencing court
was without jurisdiction to impose sentence. If a direct appeal was brought,
the post-conviction motion must be filed within ninety days after the appellate
court issued its mandate; if no appeal was filed, the motion for
post-conviction
relief must be filed within ninety days of delivery to the Department of
Corrections. An appeal from the denial of a post-conviction motion may also
be brought before either the Missouri Supreme Court of the Court of Appeals,
dependent upon whether the case involves a sentence of death or not, and
must be filed within ten days of the judgment becoming final (i.e., forty
days from denial of the motion). A petition for writ of certiorari may also
be filed in the United States Supreme Court following affirmation of the
denial of the post-conviction motion. Again, review is entirely discretionary.
- Other State Court Proceedings
- following are the most common proceedings under Missouri law that are brought
to challenge a conviction or sentence after the affirmation of the judgment
of conviction and denial of post-conviction relief. These proceedings are not
a substitute for the exclusive remedy provided under Rules 24.035 and 29.15
for post-conviction relief.
- Missouri Supreme
Court Rule 91 - State Habeas Corpus
A proceeding which
may be brought by any person restrained of his or her liberty within
the state of Missouri to inquire into the cause of such restraint. The
petition must be filed initially in the circuit court of the county
in which the offender is incarcerated, which is not necessarily the
county from which the conviction was obtained.
- Missouri Supreme
Court Rule 94 - Proceeding in Mandamus
An extraordinary
writ or order issued by a court, which compels the performance of a
ministerial act or mandatory duty where there is a clear legal right
in the party bringing the action and a corresponding duty in the defendant.
- Missouri Supreme
Court Rule 97 - Proceeding in Prohibition
An extraordinary
writ or order issued by a superior court preventing an inferior court
from acting in excess of its jurisdiction.
- Missouri Supreme
Court Rule 87 - Declaratory Judgment
A judicial determination
of a justifiable controversy between the parties which adjudicates the
rights and status of the litigants.
- Federal Habeas Corpus
Proceedings
Under federal law, i.e.,
28 U.S.C. § 2254, a state offender may seek federal habeas corpus relief.
A petition in the federal court must raise the ground that the petitioner
is in custody in violation of the United States Constitution or laws or
treaties of the United States. Where the petition challenges the state conviction
and/or sentence, the named prison custodian and therefore the state, are
represented by the Attorney General for the
State of Missouri. Under 28 U.S.C. § 2244(d), the petition for
writ of habeas corpus generally must be filed with the United States District
Court within one year from when the state conviction became final. Regarding
capital cases, the petition must be filed within 180 days after the conviction
became final, if the state has established certain requirements by law pertaining
to the legal representation of indigent capital offenders in
post-conviction
proceedings. Previously there were no time limitations for which an offender
could bring a habeas petition under 28 U.S.C. § 2254.
Habeas laws adopted
in 1996 also expressly preclude and restrict the filing of multiple petitions
challenging the same conviction and sentence.
A habeas petitioner
is generally not entitled to an evidentiary hearing on his claims for relief.
Where a hearing is granted, the inquiry is upon the allegations of constitutional
violations in relation to the conviction and/or sentence, and the crime
victim does not have a legally recognized right to notice of the hearing
or to address the court.
In the event that the
federal district court were to "grant the writ," the offender is not automatically
released from prison. Generally the court issues an order directing that
the state either begin trial proceedings against the petitioner within a
specified number of days, typically sixty, or discharge the petitioner at
the expiration of that time.
Procedurally, the Assistant
Attorney General representing the State of Missouri, upon the grant of the
writ, can request that the district court reconsider its opinion. Should
the court deny that motion, the State can seek a stay of execution of the
judgment granting the writ, thus in effect suspending the court's order.
An appeal challenging the district court's decision is then taken to the
United States Court of Appeals. In Missouri, such an appeal would be taken
before the Court of Appeals
for the Eighth Circuit.
The Eighth Circuit,
upon receiving the State's notice of appeal, sets a briefing schedule. The
State then has the opportunity to file a brief with the appellate court
presenting the reasons why the district court's decision is erroneous. The
Eighth Circuit may but need not hear oral arguments in the case. A panel
of three judges reviews the appeal.
In the event that the
U.S. Court of Appeals affirms or upholds the decision of the lower court
granting the writ, the State may then request that the panel rehear the
appeal or that the entire court hear the case, but only if counsel has a
reasoned belief that certain standards for requesting such relief are present.
If the State ultimately does not prevail, a petition for writ of certiorari
may be filed in the United States Supreme Court. Review by the Supreme Court
is entirely discretionary.
If the district court
denies the habeas corpus petition, the offender must then obtain the permission
of either the district court or the federal court of appeals to proceed
with appellate review. If granted, the procedure in terms of briefing, argument,
and post-decision motions are the same.
- PAROLE
- Minimum Prison Terms
For offenders who have
previously been convicted of one or more felonies, he or she must serve
a specific percentage of the new sentence; the number of prior convictions
determines the percentage of time that must be served before the inmate
is eligible for parole consideration (§
558.019, RSMo).
Any defendant convicted of committing a dangerous offense as defined in
§
556.061, RSMo (arson in the first degree, assault in the first degree,
forcible rape, forcible sodomy, kidnapping, murder in the second degree,
robbery in the first degree), must serve a minimum of 85% of the sentence
imposed.
In the event that the minimum eligibility date exceeds the conditional release
date, the offender is not entitled to conditional release.
- Parole Hearings
A prisoner will most
likely be eligible for parole consideration before the sentence is completed.
The Missouri Board of Probation and Parole is responsible for deciding when
a Missouri prisoner is eligible for parole, based on various guidelines,
as defined by statute (§
217.690) and regulations, and when that prisoner will actually be released.
The inquiry is upon whether there is a reasonable probability that the offender
can be released without detriment to the community or to himself, and whether
the Board of Probation and Parole believes that the offender is able and
willing to fulfill the obligations of a law-abiding citizen. A victim or
the family of a deceased victim may attend the parole hearings or otherwise
provide information to the Board regarding the crime and request that parole
be denied. A prisoner who has been granted parole will be given a date when
he or she will be released, referred to as the "presumptive release date."
Upon actual release on parole, the offender remains in the legal custody
of the Department of Corrections and is subject to the Board's orders.
Challenges to the Board's decision not to grant parole are generally in
the form of a state petition for writ of habeas corpus or petition for declaratory
relief. Because of the discretion that the Board is afforded by statute,
the inquiry generally is whether the Board complied with applicable procedures.
|
