The Criminal Proceeding

A proceeding is "criminal" when the defendant is alleged to have violated a criminal statute. There are two basic types of crimes: misdemeanors and felonies. An "infraction," such as most speeding tickets, is not technically a crime, but a civil public offense punishable only by a fine of up to $100 (plus court costs) and no imprisonment. General misdemeanors have a maximum fine of $1,000 and incarceration of not more than six months in the county jail. A felony may be punished by imprisonment in a state correctional facility of more than a year or, in some instances, by death (a "capital crime"). The Idaho Criminal Rules apply to criminal cases. Most of the steps in the process described below apply to felony charges. See Idaho Code § 18-111 for basic definitions.

Pre-Trial
The police investigation: This first stage of the criminal proceeding often involves the investigation of a crime by law enforcement. This may include the issuance of a search warrant by a magistrate judge, and/or interrogation of the defendant by law enforcement, and may include arrest of the defendant.

Filing the complaint: The complaint describes the formal charge against the defendant and is usually signed by a prosecutor or police officer. If the defendant has not already been arrested, the court may order an arrest warrant allowing police to take custody of the person charged, or a summons requiring the person to appear before the court.

The first appearance in the magistrate division: This is the first time the defendant is before a judge regarding the complaint. Don't confuse first appearance with preliminary hearing or arraignment. The defendant is advised of his or her rights and the judge explains the legal procedure that will be followed in the case. At this stage bond will be addressed if the defendant is incarcerated. If the defendant cannot afford an attorney, the court will consider whether to appoint one. A defendant charged with a felony may not enter a plea at this stage of the process, but if this is a misdemeanor case, the first appearance is combined with the arraignment, where the defendant must enter a plea. If this is a felony case, the defendant is entitled to a preliminary hearing, unless the defendant waives this later proceeding, where the prosecutor must show there is probable cause to believe a crime has been committed and the defendant committed it.

Bail bond: Bond may be addressed at any time if the defendant is incarcerated. A bail bond is an obligation signed by the accused, with sureties, to secure his presence in court. If the defendant fails to appear, the bondsman has a period of time to deliver the defendant to the court. If this is not done, the bond is forfeited.

The preliminary (or "probable cause") hearing: At this hearing, the magistrate judge determines if there is probable cause to believe that a felony crime has been committed and that the defendant committed it. If so, the defendant is "bound over," that is, the case is sent to District Court for arraignment and other future proceedings. If the prosecutor fails to make an adequate showing at the preliminary hearing, the magistrate judge may dismiss the case or the charge may be reduced to a less serious offense.

A defendant may request that the preliminary hearing be closed to the public. The court may then exclude the public, but only if the court makes specific findings that: (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent; and (2) reasonable alternatives to closure cannot adequately protect the defendant’s right to a fair trial. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); Cowles Publishing Co. v. Magistrate Court, 118 Idaho 753, 800 P.2d 640 (1990); Idaho Code § 19-811.

The arraignment in a felony case: This proceeding is held before a district judge. The defendant is again advised of his or her rights and the procedures the court will follow, and enters a plea. At this stage, the court may again consider bond. If the defendant pleads not guilty or remains silent, the case will be set for trial. If the defendant pleads guilty, the judge will order a pre-sentence investigation and set a sentencing date.

The grand jury process: This is an alternative to the process described above, which is authorized in Idaho Code §19-1001 and the Idaho Constitution. The grand jury is a panel of citizens called together to hear evidence and decide if criminal charges should be brought by its indictment (rather than the prosecutor's complaint). The grand jury has broad investigative powers to gather evidence, and can call witnesses and compel them to testify. Grand jury proceedings are conducted in secret. If the grand jury returns an indictment, the court issues an arrest warrant or summons for the person indicted, and that person appears before the District Court for arraignment and consideration of bail. See Idaho Criminal Rule 6.5.

Pre-trial motions: During the post-arraignment, pre-trial period, the judge may consider and rule on any number of motions, often involving whether certain evidence may be introduced. The judge may schedule pre-trial hearings to hear attorneys argue the motions. Additionally, a pre-trial conference with the judge and the attorneys for both sides will be held to set the ground rules for the trial.

Plea agreements: Most criminal cases do not go to trial. In criminal actions, the prosecutor and the defendant's attorney may come to an agreement about what the defendant will admit to and what the prosecutor will recommend as a sentence. Some plea agreements are informal agreements between the defendant and prosecutor, which do not bind the judge. In plea agreements made pursuant to Idaho Criminal Rule 11, the judge will then hold a hearing to determine whether to accept the agreement. The judge is not bound by the plea agreement, and if the judge doesn't follow it, the defendant may be allowed to withdraw his plea. See Idaho Criminal Rule 11.

The Trial
Deciding whether to call a jury or hold a court trial before a judge: Generally, unless there is a waiver of the right to a jury trial, a jury will be called. Felony trials are conducted before a twelve-person jury. A six-person jury hears misdemeanors. See Idaho Criminal Rule 23.

Jury selection: This stage begins with voir dire (vwor deer)--when attorneys for both sides question potential jury members under oath. An attorney may challenge a prospective juror for cause (meaning the attorney has found a demonstrable reason why a person should not serve) or use a "peremptory" challenge, in which case the attorney need not state why this person should not be on the jury. Attorneys will have a certain number of peremptory challenges. See Idaho Criminal Rule 24.

Instructions: The judge explains the rules of law that the jury must apply, including the elements of the crimes with which the defendant is charged.

Opening statements: After the jury has been impaneled, each side has the opportunity to make an opening statement in which the attorneys talk to the jury about what they will hear in the case. A defendant's attorney may choose to wait to give an opening statement until it is the defense's turn to present their case.

Prosecution's case: The prosecution calls its witnesses and questions them--this is direct examination--and the defense attorney will cross-examine them. Attorneys are not supposed to "lead" their own witnesses; that is, they may not provide answers to the questions they ask. On cross-examination, however, an attorney is allowed to lead the witness.

Throughout the case, attorneys will make objections to what the other side attempts to do--the form of questioning, or the introduction of certain evidence, for example. The judge may overrule or sustain the objection. “Overrule" means the objection is not correct under the law. "Sustain" means the judge agrees that the objection is correct under the rules of the law.

Defendant's case: The defense attorney may begin with an opening statement if one has not already been given. After both sides have questioned the defendant’s witnesses, the defense rests.

Rebuttal witnesses: At this time, attorneys may call rebuttal witnesses, to explain or contradict testimony that previously has been heard.

The judge instructs the jury: The judge may give the jury additional instructions on the law.

Closing arguments: This is the lawyers' last chance to convince jurors to see the evidence their way.

Jury retires and reaches a verdict: When the jury reaches a verdict, the judge, attorneys and defendant come back into the courtroom to hear it read. Afterward, upon the request of either counsel, the judge may poll the jury; that is, inquire of each juror individually if this is his or her verdict. Verdicts must be unanimous; if the jury cannot reach a unanimous verdict (a "hung jury"), the judge may declare a mistrial and the prosecutor will determine whether to retry the case. If the defendant is acquitted, the defendant is released from the custody of the court. If the defendant is convicted, a new part of the process begins. See Idaho Criminal Rule 31.

Post-Trial/Guilty Plea
If a defendant is convicted at trial, the defense attorney may file certain post-trial motions asking for reconsideration and/or relief despite the decision of the jury. If these are denied, the sentencing process comes into play.

Sentencing hearing: The date for a sentencing hearing is set at the end of the trial--usually from 30 to 60 days after judgment has been rendered by the jury. At the hearing, attorneys for both sides may present evidence, testimony, and oral arguments regarding what would be an appropriate sentence. Pursuant to Idaho Criminal Rule 11, the judge need not impose the sentence recommended in any plea agreement. See Idaho Criminal Rule 11.

The following documents and statements may be considered at the hearing:

Pre-sentence investigation report: This report is based upon the pre-sentence investigator's interviews of the defendant and other individuals who know the defendant. It includes a social history of the defendant including education, employment, family situation, physical and mental health and community ties. The report also describes the defendant's prior criminal record, the defendants' version of the crime, and police and other witnesses' versions. The prosecution and defense typically have access to the pre-sentence investigator’s report, but it is not available to the media or the public. These reports are confidential and will not be released to anyone except those indicated in Idaho Criminal Rule 32 and Idaho Court Administrative Rule 32.

Psychosexual evaluation: The judge may order this evaluation of the defendant if the conviction involves certain sex-related crimes. See Idaho Code § 18-8316 for more information. The evaluation assists the judge in arriving at the most appropriate sentence. It must be performed by a licensed psychiatrist, a licensed master’s or doctoral level mental health professional approved by the court. These evaluations also are confidential. See Idaho Criminal Rule 32.

Defendant speaks ("right of allocution"): The judge must allow the defendant the opportunity to speak on his or her own behalf at sentencing. See Idaho Criminal Rule 33 for more information.

Victim impact statements: Victims of crime are allowed by the 1994 Victim's Rights Amendment to the Idaho Constitution (Article I, Section 22) and by state law to present a victim impact statement at a sentencing hearing. Victims may provide a written or oral statement to the court regarding the impact the crime has had upon them, but they are not to recommend punishment for the crime in a capital case.

Judge pronounces sentence: Most sentences are pronounced at the end of the sentencing hearing; however, judges may release their decisions at a later time.

Possible Sentences:

Fine: A monetary amount based on the relevant statute may be assessed, as well as restitution and court costs.

Withheld Judgment: No judgment of conviction is entered. If the defendant successfully completes the probationary period, complying with the conditions ordered by the judge, the case may be dismissed.

Suspended Sentence: The judge enters a judgment of conviction and imposes a sentence but does not send the defendant to prison for the imposed term. Instead, all or part of the incarceration term is suspended, usually in conjunction with a term of probation.

Probation: The judge enters a judgment of conviction and imposes a sentence but puts the defendant on probation under specified conditions, which may include some jail time. If the defendant violates probation, the defendant may be ordered to serve out the remainder of the probationary period in incarceration as stated in the original sentence.

Retained Jurisdiction ("rider"): In a felony case, the judge may enter a judgment of conviction and impose sentence, but retain jurisdiction over the defendant for up to 180 days. During this retained jurisdiction, the defendant undergoes two weeks of diagnosis in the state prison system, and if determined not to be dangerous to society, will be sent to the North Idaho Correctional Institution at Cottonwood, Idaho, or other facilities in the state. The defendant may undergo rehabilitation programs and psychiatric testing. At the end of the period the judge will determine whether to suspend the rest of the sentence or release jurisdiction (send defendant to prison).

Prison Term: The judge may forego the above options and simply impose a prison term for the defendant. The maximum term for any crime is set by statute. For some crimes, the statutes also set a mandatory minimum sentence that the court must impose. Idaho's Unified Sentence statute (known generally as the "Truth in Sentencing Act") requires that the judge specify a minimum period of confinement, during which the defendant is not eligible for parole. See Idaho Code § 19-2513. The portion of the sentence during which the defendant is not eligible for parole is referred to as the “fixed” or “determinate” portion of the sentence. The rest of the sentence, during which the defendant is eligible for parole, is referred to as the “indeterminate” portion of the sentence. Whether the defendant will serve "concurrent" or "consecutive" sentences becomes an issue if the defendant already is under sentence, or has been found guilty of multiple offenses. If the defendant is sentenced to two or more concurrent sentences, they will run at the same time; the defendant will not serve more than the longest of those. If ordered to serve consecutive sentences, the terms are cumulative; the defendant will not begin to serve the later one until the earlier one has been completed or paroled.

Death Penalty: First-degree murder and first-degree kidnapping are "capital offenses"-- that is, they carry a possible death penalty in Idaho. The jury decides whether the defendant should receive the death penalty. Following a guilty verdict or guilty plea, the court holds a sentencing hearing at which the state and the defendant can present evidence. The jury can impose the death penalty if it finds that: (1) at least one of the ten aggravating circumstances set out in statute is present; and (2) the mitigating circumstances are not so compelling that they make the death penalty unjust. If the jury finds one or more aggravating circumstances, but decides that the mitigating circumstances make the death penalty unjust, the defendant gets a life sentence without parole. If the jury does not find any aggravating circumstances, the judge imposes a life sentence with a fixed term (during which the defendant is not eligible for parole) of at least ten years.

Post Sentencing/Incarceration
Post Conviction Process in the District Court: Following sentencing, the defendant may file a motion for a new trial under Idaho Criminal Rule 34, or to reduce the sentence under Idaho Criminal Rule 35. A motion for a new trial based on newly discovered evidence may be made within two years after the final judgment; a motion based on any other reason generally must be made within 14 days after the imposition of sentence. A motion for a reduced sentence must be filed within 120 days of the entry of the judgment-imposing sentence. A motion to correct an illegal sentence may be made at any time.

Appeals: Decisions in District Court are appealed to the Supreme Court, and except in capital cases, the Supreme Court may assign that case to the Court of Appeals. The Supreme Court may review Court of Appeals decisions, or may decline to grant review. Most often decisions of the Court of Appeals are final. See "The Appellate Process" section of this Guide for more information.

Parole: When sentencing a defendant to prison, the judge must indicate what the minimum and maximum term of confinement will be; the defendant generally is not eligible for parole (a conditional release from prison) until the minimum term has been served. See discussion under "Prison Term" in this Guide. A prisoner eligible for parole may petition the State Commission of Pardons and Parole, which meets at least four times a year to consider inmates' applications. The commission must publish notice of its meetings, and include the names of all persons applying for pardon or parole.

Parole/Probation Violations Procedure: A parolee or probationer may be immediately arrested and detained in the county jail if there is cause to believe that the parolee/probationer has violated the conditions of parole or probation. See Idaho Code § 20-227. For parolees, a parole revocation hearing must be held before one or more members of the commission, or its hearing officer, to determine whether to revoke parole. See Idaho Code § 20-229. If the commission member(s) or hearing officer determines that parole has been violated, the entire commission executes an order of parole revocation. See Idaho Code § 20-229B. Probationers alleged to have violated a condition of probation will be subject to a probation violation hearing in the District Court, at which time the court may revoke probation and order that the defendant serve the sentence that was previously suspended. See Idaho Code § 19-2603 and Idaho Code § 20-222.

Sexual Offender Registration Requirement: Convicted sex offenders, including juveniles, allowed to return to the community must register with the county sheriff's office where they live. This registration applies to sex offenders who have been incarcerated, received a suspended sentence and probation or even a withheld judgment. Failure to register is a felony for an adult offender, with penalties of up to ten years in prison and a fine of $5,000. A juvenile offender is subject to a misdemeanor for failing to register; additionally, the juvenile's parent or guardian is subject to a misdemeanor offense for failure to supervise a child, which carries a fine of up to $1,000. See Idaho Code §§ 18-8302 et seq., Idaho Code §§ 18-8402 et seq. for more information about this process and about accessing sexual offender registration information.