criminal procedures

Gourley, Rehkemper & Lindholm PLC - Attorneys At Law

Criminal Procedure Timeline

Arrest: Starts the process. Arrest is defined as "the taking of a person into custody when and in the manner authorized by law, including restraint of the person or the person's submission to custody." Iowa Code section 804.5.

Initial Appearance: The arrested individual must enter a plea of guilty or not guilty. The magistrate or judge then informs the individual of his/her rights and counsel may be appointed if the proper conditions are met. The Initial Appearance must occur without "unnecessary delay" after arrest. "Unnecessary delay" means less than 24 hours.

Preliminary Hearing: Must be held within 10 days of arrest if the individual is still in custody or 20 days after arrest if not in custody. Magistrate or judge determines if there is sufficient probable cause to hold the individual to answer in further proceedings. The question is whether or not there is probable cause to believe the individual arrested committed the offense. Very low burden for State to meet. The Preliminary Hearing may be avoided by the prosecutor if the Trial Information or Indictment is filed prior to the hearing date. Even if the defendant prevails at this hearing, the State may still file a Trial Information or Indictment supported by probable cause. For this reason, unless the defendant is in custody, the Preliminary Hearing is ordinarily waived.

Indictment/Trial Information: The formal charges must be filed by way of a Trial Information or Indictment within 45 days of the defendant's arrest or the charges must be dismissed. Court determines if the evidence contained in the information and attached minutes of testimony, if unexplained, would warrant a conviction by a jury. If the Indictment of Trial Information is filed after the 45 days without a good explanation by the County Attorney, the charge is dismissed with prejudice which means it cannot be filed again.

Arraignment: Court date where the defendant is presented with a copy of the Trial Information and is required to enter a plea of guilty or not guilty to the charges. Defendant also has the right to have the charges read in open court for all to hear. This may and often times is waived. The arraignment may be conducted in writing if the proper procedures are followed.

Defense Motions

Bill of Particulars: Must be filed within 10 days of the arraignment unless good cause is established by the defendant. A request for Bill of Particulars is a request by the Defendant for the State to specify with more particularity the factual basis supporting the charge.

Notice of Deposition: Must be filed within 30 days of the arraignment unless good cause is established by the defendant. Depositions are when the defendant through his/her attorney is permitted to bring the State's witnesses in and ask them questions about what happened. The witnesses answers are recorded by a court reporter and the witness is placed under oath prior to answering questions.

Waiver of Jury Trial: Must be filed within 30 days of the arraignment unless good cause is established by the defendant or at any time with prosecutors consent

Pre-Trial Motions: The following pretrial motions must be filed within 40 days of the Arraignment or they are waived unless good cause is established by the defendant.

• Objections based on defects in the institution of the prosecution
• Defenses and objections based on defects in the indictment or information.
• Motion to Suppress - motion claiming that evidence was illegally obtained and requesting that the evidence be declared in admissible at trial.
• Requests for discovery
• Requests for severance - motion requesting that defendant's trial be held separate from co-defendant's trial.
• Motion for change of venue or change of judge
• Motion in Limine - Motion requesting that the State be precluded from presenting certain evidence or arguments. Must be filed no later than 9 days prior to trial.
• Notice of Defenses: Alibi, Self Defense, Insanity, Diminished Responsibility, Intoxication, Entrapment.
• Hearings on these motions are held at a time scheduled by the court prior to trial. Defendant's presence is required.

Pretrial Conference: The pretrial conference is ordinarily held within about a month after the arraignment date. It is a time for defense counsel and the county attorney to resolve the case by way of plea bargaining prior to jury trial. The defendant's presence is required at this hearing.

Trial: When the State is held to its burden of proving the charge(s) beyond a reasonable doubt.

A defendant must be brought to trial within 90 days from the date of arraignment unless he/she waives that right. Speedy trial is often waived if the defendant is not in custody. Speedy trial may be continued for good cause shown but in any event the defendant must be brought to trial within 1 year from the date of initial arraignment.

Jury Selection: The trial starts with jury selection from a pool of randomly selected individuals from the community. Defense counsel and the prosecutor are each given a turn to question the potential jurors regarding their life experiences, prejudices and biases. Both the defendant and the prosecution may request that a specified juror be struck for cause if the proper legal requirements are met. In any event, each side is provided a specified number of strikes and is required to use each and every one of the strikes until the proper number of jurors are remaining (12 in most cases; 6 in simple misdemeanors).

Opening Statement: The prosecutor goes first followed by defense counsel. This is the time where the parties explain to the jurors what they expect the evidence to be presented at trial will be.

States Case in Chief: State has its witnesses testify regarding their knowledge of events and they are then cross-examined by defense counsel. State is required to present evidence establishing each and every essential element of the offense.

Motion for Judgment of Acquittal: Motion made by defense counsel requesting that the charge(s) be dismissed following the State's case in chief. Defendant must specify each and every specific ground upon which this motion is based. Judge may either grant, overrule or reserve ruling until the close of evidence.

Defendant's Case in Chief: If the defendant elects to put on evidence, he/she is presented the opportunity to do so and defense witnesses are also cross examined by the prosecutor. The defendant is not required to put on any evidence.

Renewal of Motion for Judgment of Acquittal: Defendant renews his/her motion based upon the newly presented evidence. Judge may either grant, overrule or reserve ruling until the close of evidence.

State's Rebuttal: If the defendant put on evidence, the State has an opportunity to present evidence that rebuts the defendant's contentions. If no evidence is offered by the defendant than no rebuttal is available. State is not required to notify the defendant of any potential rebuttal witnesses or evidence.

Renewal of Motion for Judgment of Acquittal: Defendant renews his/her motion at the close of all evidence. Judge may either grant, overrule or reserve ruling until after the jury returns its verdict.

Closing Argument: Defense counsel and prosecutor are provided an opportunity to summarize the evidence and argue the facts and the law to the jury in an effort to convince them to side with them. The prosecutor goes first followed by defense counsel. The prosecutor is then given another opportunity and has the last word.

Verdict: The jury then retires for deliberation and must reach a unanimous decision of either guilty or not guilty. If they are unable to reach a unanimous decision then a mistrial is declared and the case is rescheduled for a retrial with a new jury.

Motion in Arrest of Judgment/New Trial: Must be made within 45 days after plea or verdict but in any event no later than 5 days before sentencing.

Pronouncement of Judgment/Sentencing: They Judge hears and considers evidence and the recommendations of the prosecutor, defense counsel, and the department of corrections by way of a Pre-sentence Investigation Report and provides the defendant and the victim with an opportunity to be heard prior to imposing the sentence the court determines to be appropriate. Sentence may range anywhere from a fine, probation or prison or depending on the offense and circumstances

Notice of Appeal: If the defendant wishes to appeal an adverse ruling to the Iowa Supreme Court, notice of appeal must be filed within 30 days from the date of the imposition of sentence. The Iowa Attorney General's Office must also be served with a copy of the Notice of Appeal.

Reconsideration of Sentence: A defendant may file a motion for reconsideration of sentence requesting that he court reconsider the previously imposed sentence. This motion must be filed within 30 days from the date of sentencing in a misdemeanor of 1 year from the date of sentencing for a felony. Whether or not a sentence is reconsidered is solely within the discretion of the sentencing judge.