The following is a brief description of the process followed to prosecute a person accused of committing a felony offense. If the offense is a misdemeanor or if the person accused is a juvenile, the steps involved in prosecuting the offender are different. Please refer to the Misdemeanor Procedures for information on how a case would proceed in a Justice or Magistrate Court.
When you are the victim or a witness to a crime, you should immediately call 9-1-1 or the law enforcement agency (Police, Sheriff or Department of Public Safety) which has jurisdiction for the area where the crime occurred. The best thing you can do is to call the law enforcement agency immediately; the longer you wait, the harder it will be to catch the criminal.
In most cases, an initial investigation of a crime is conducted by a patrol officer who travels to the crime scene or the location of the victim, shortly after the crime is reported. The patrol officer will interview the victim(s) and any witness(es) and will begin an initial report listing the circumstances of the crime. In addition, an officer may take photographs or collect evidence during an inspection of the scene. In certain felony cases, a Deputy County Attorney may be present at the scene. The patrol officer then completes an incident report which may be channeled to detectives for further investigation.
The investigating officer may or may not decide to arrest the suspect for the felony offense. When a suspect is arrested for a crime, within twenty-four (24) hours after the arrest s/he must be taken before a Judge or commissioner for an Initial Appearance. Many defendants are released at this time on their own recognizance (O.R.) by avowing to the Judge that they will return to court when required. When released on his/her own recognizance, the defendant is not required to post bond because it is believed that a bond is not necessary to assure his/her appearance in court. However, other restrictions might be placed on defendants while released O.R., including limitations on their ability to travel and/or their contact with the victims in the case. Defendants with serious records, those who have committed dangerous felonies or those who have a history of not returning to court as required, are more likely to be held in jail or released only after posting a large bond.
Formal Charging Procedure
When the investigating officer believes that a suspect has been identified and there is sufficient evidence that a crime has been committed, the report is forwarded to the County Attorney’s Office for review. The Deputy County Attorney reviewing the case may request additional investigation to complete the case. If the prosecutor believes that the report provides sufficient evidence to indicate that the alleged offender has committed a crime, and if in his/her judgment the case has a reasonable likelihood of conviction at trial, the prosecutor will file a criminal complaint or seek an indictment from the Grand Jury.
Preliminary Hearing/ Grand Jury
Once the decision has been made to file felony charges, a hearing is scheduled to determine whether or not there is sufficient evidence (probable cause) to justify allowing the case to proceed. Probable cause is determined either by a Justice of the Peace at a Preliminary Hearing or by a Grand Jury. A Grand Jury is a group of citizens (usually 9-16 people) selected for the sole purpose of making these probable cause determinations. In both proceedings, victim(s) or witness(es) may be called to testify. Sometimes charges against the defendant are dismissed because the Justice of the Peace or Grand Jury determines that there is insufficient evidence to support that charge. However, if additional evidence comes to light at a later date, it is possible for charges to be re-presented. If the Judge or Grand Jury does find probable cause exists to support the charge, a Judge will then either issue a warrant authorizing the arrest of the suspect or a summons requiring the suspect to appear in court on a specific day.
The first appearance of the defendant in Superior Court is called an Arraignment. The Arraignment serves several purposes. First, the defendant is informed for the first time of the exact nature of the charge(s) against him/her. The defendant is also advised that s/he has a right to an attorney and if s/he cannot afford an attorney, one will be provided at public expense. The Court will likely set or perhaps modify the release conditions for the defendant. In most cases, the defendant will be released on his/her own recognizance, often times with restrictions placed on his/her ability to travel or contact with the victim. The defendant is asked to enter a plea to the charges against him/her: “guilty” or “not guilty.” Normally, a plea of “not guilty” is entered and another hearing is set within four to six weeks of the Arraignment. If the defendant enters a plea of “guilty” at the Arraignment, a sentencing date is set. The defendant may be sentenced not less than fifteen days nor more than thirty days after the guilty plea, unless the defendant agrees to an earlier or later sentencing date.
After the arraignment and before a trial, there are many activities performed in preparation for trial. Pursuant to the Arizona Rules of Criminal Procedure, both the prosecution and defense must disclose information to the other party. This process, called Discovery, includes providing the defense attorney with a copy of the police report and any other written information. The rules of discovery also allow attorneys to interview prospective witnesses in the case. In Arizona, the defense has the right to interview all of the State's witnesses prior to trial. If you are a victim of a crime, however, you have the right to refuse to submit to a pretrial interview, deposition or other discovery request by the defendant, the defendant's attorney or other person acting on behalf of the defendant. If anyone approaches you about the case, you should insist that he/she identify him/herself as representing either the prosecution or the defense. You may call your victim advocate to determine your rights before setting up any interview.
In addition to discovery, there may be several court hearings that are scheduled before the trial. At the court hearings, motions may be heard from either the prosecutor or the defense attorney, or other matters of concern to the attorneys or the court may be addressed. Defendants are entitled to a speedy trial. If the defendant remains in custody, a trial date must be set within one hundred fifty (150) days of the Arraignment. Defendants released from custody on bail or on their own recognizance must receive a trial date within one hundred eighty (180) days of the Arraignment. The trial may occur later than these time frames if the defendant is willing to waive his/her right to a speedy trial.
Competency of the Defendant
If a defense attorney thinks that a defendant may not be competent to stand trial because the defendant cannot assist in his/her own defense, the defense attorney may request that the court order a psychiatric evaluation of the defendant (commonly called a "Rule 11 evaluation"). The defendant will submit to a psychiatric evaluation conducted by one or two doctors appointed by the court. Typically the Rule 11 process takes at least one month but may take longer. A hearing is then scheduled for the Judge to decide if the defendant is or is not competent to stand trial. After hearing testimony and/or reviewing the reports of the doctors, the Judge makes a determination about the competency of the defendant. If the Judge determines that the defendant is competent, the case proceeds through the criminal justice process. If the defendant is found to be incompetent, the Judge will order a second evaluation to determine if the defendant needs mental health treatment. A Judge may order that the defendant undergo mental health treatment until s/he becomes competent. If a Judge determines that the defendant is incompetent and will not become competent in the near future, the State may decide to dismiss the charges and the defendant will then be released from custody. Even if the defendant has been determined to be competent, the defendant is still allowed to raise an insanity defense at trial.
Before trial, the Deputy County Attorney prosecuting the case may discuss the possibility of a negotiated case settlement with the defense attorney. The defense attorney may seek an agreement enabling the defendant to plead guilty to the original charge(s) or to some lesser charge(s), a dismissal of certain charges, a commitment from the Deputy County Attorney not to file additional charges, or an agreement to recommend a particular sentence. The Deputy County Attorney will make diligent efforts to confer with the victim concerning any plea agreement. If an agreement is reached, the attorneys and the defendant appear before a Judge for a change of plea hearing. If you are a victim, you have the right to be present and to make a statement expressing your opinion about the plea agreement. The Judge may consider your opinion when deciding whether or not to accept the plea agreement. Upon the acceptance of the plea agreement the Judge will enter a finding of guilt against the defendant and set the case for a sentencing hearing.
If a plea agreement is not reached, the case may go to trial. All parties to the case, including prosecution witnesses and defense witnesses, will be subpoenaed to testify before a Judge, or a Judge and a jury. Witnesses are excluded from the courtroom until they are finished testifying. The reason for this rule is to ensure that a witness is not influenced by the testimony of another witness. If you are a victim, you have the right to be present throughout the entire trial.
Once the jury is selected and sworn, the prosecution and the defense make opening statements to the jury to explain the case. The Deputy County Attorney then presents the case against the defendant. It is the responsibility of the State to prove “beyond a reasonable doubt” that a crime was committed and the defendant is guilty of committing that crime. To meet this burden of proof, the Deputy County Attorney presents evidence and calls witnesses to testify. Witnesses are required to testify under oath and may be cross-examined by the defense attorney. After the prosecutor presents the case against the defendant, the defense has an opportunity to present its evidence. On advice of counsel, the defendant may or may not testify on his/her behalf. As in the case with the prosecution witnesses, defense witnesses are subject to cross-examination by the prosecutor. Following the defense's case, rebuttal witnesses may be called by the prosecutor to discredit statements and facts presented by the defense. At the end of the trial, attorneys for the prosecution and defense make their final arguments to the Judge or the jury, and the Judge instructs the jury in matters of law as applied to the case.
A jury is required by law to reach a unanimous verdict. If the jury returns a verdict of “not guilty,” it means that, in the jury’s opinion, the State failed to prove the case beyond a reasonable doubt and the defendant is released. If this occurs, the State cannot appeal the jury's verdict and the matter cannot be retried. If the jury returns a verdict of “guilty,” the Judge sets a sentencing date. A jury that is unable to reach agreement on a verdict is declared “hung” by the Judge. In the event of a hung jury, the State may then request that the case be retried within sixty (60) days.
If the defendant pleads guilty, or if the defendant is found guilty at trial, the Judge will set a date for the defendant to be sentenced. In felony cases, sentencing will generally be held within thirty (30) days. In the meantime, the court will request a Pre-Sentence Report on the defendant from the Gila County Probation Department. The Pre-sentence Report will discuss the defendant's life and any other crimes s/he may have committed, and will contain a recommendation for a specific sentence. The Probation Officer will contact the victim(s) as part of the investigation. The victim may also submit a written statement to the Judge through the Probation Officer or Victims’ Services Department, or may address the Judge in person at time of sentencing. The victim’s statement may contain a request for restitution (payment of monetary losses suffered by the victim). Arizona law requires the Judge to order the defendant to pay restitution if the victim has suffered a monetary loss directly related to the crime. However, restitution is not available to compensate for pain and suffering in criminal cases. In some situations, when either the Deputy County Attorney or the defense attorney has strong feelings about the recommended sentence, testimony especially relevant to the sentence may be heard at a special sentencing hearing.
Probation, Prison, Parole or Community Supervision
If the defendant is placed on probation, s/he will be under many restrictions of conduct and travel. Any inappropriate action by a defendant placed on probation, including unauthorized contact with victims, should be reported to the Gila County Probation Office. A defendant who violates his/her probation might have the probationary term revoked and will be subject to additional sanctions, including in some cases, a prison sentence. If the sentencing Judge orders a defendant to serve a prison sentence, the majority of defendants must serve at least 85% of the sentence imposed. At the time of sentence, the Judge will also order the defendant to serve a term of community supervision following the prison term. The term of community supervision will be equal to 15% of the total prison term. During the time the offender is being supervised in the community, the offender will report to a parole officer and must abide by certain restrictions on his/her activities. If the offender violates the terms of community supervision, s/he may be ordered by the Judge to serve the remainder of the term of community supervision in prison. If you are a victim, you have the right to be notified of a parole hearing by the Arizona Board of Executive Clemency, and you have the right to be heard at any parole hearing. You also have the right to be informed by the Arizona Department of Corrections, on request, when the inmate is released from prison. The Arizona Department of Corrections will notify you if the inmate escapes, even if you did not request this notification.
After a defendant has been convicted of a crime, s/he has the right to appeal his/her conviction and/or sentence. An appeal is a formal request from the defendant and/or the defendant's attorney asking for an appellate court to review the case to determine if all of the defendant’s rights were observed and that the procedures and laws were followed. Depending on the type of appeal, either the Gila County Attorney’s Office or the Arizona Attorney General’s Office will handle the appeal on behalf of the State. In some cases, oral arguments of the attorneys are heard by the court, but the testimony of victims and witnesses is not allowed.