A Series of Lessons for Facebook Attorneys Lesson 1 – The Start of a Criminal Case

Criminal cases garner a huge amount of publicity and social media opinion. Trial by Facebook is a favorite past time of many. However it would seem that most people do not fully understand how the process works. I am going to walk you through the start of a criminal case.

John Doe gets charged with 1st Degree Robbery and arrested. John is entitled to an attorney to represent him, however most of the time the client appears for the initial arraignment without an attorney. The associate circuit judge is going to enter a not guilty plea, as John has the right to counsel. Not to mention in Missouri the initial appearance is with the Associate Circuit Judge who cannot take a guilty plea on a felony on a first appearance. At this stage a bond is set for John’s release or in very violent cases bond is set at NO BOND. That means John is staying in jail until a bond reduction can be addressed.

Usually shortly after this arraignment an attorney enters their appearance for the client. It could be a private attorney or a public defender. At this stage of a case, all the attorney knows is what the client has told them and what is in the short Probable Cause Affidavit prepared to get an arrest warrant. The affidavit contains minimal information, and is in no way a full recap of the evidence in the case. The attorney who just entered is flying mostly blind and waiting on additional information – the actual evidence from the State.

Some of you may find this shocking, but the client’s version of events and the affidavit do not usually match. In fact, it is rare that the client and the police agree on the facts that resulted in arrest. The attorney meets with the client and gets their story, but only reads the affidavit provided by the officer. That means there is very little information that backed up by actual evidence in the beginning. The attorney does not receive the evidence from the State for some time, and begins the defense based on what little information that has been provided by the client.

At the early stages the attorney is likely filing motions for bond reduction to allow the client to be released, and preparing for the preliminary hearing. The preliminary hearing is not about guilt or innocence. The hearing is solely to determine if a felony likely occurred and that your client is the one who committed the felony. There is very little discovery provided prior to this hearing, and the defense attorney is still working from limited information. No one outside the prosecutor’s office has all the evidence or testimony of witnesses at this stage. The case is not ready for trial by jury or Facebook.

Let’s be clear, each Defendant has a right to an attorney and is supposed to be considered innocent, until proven guilty at trial. Trial is still a long way off, as discovery – i.e. the release of actual evidence to the attorney has not happened. However, despite the fact there is little factual information available and the public is not privy to the evidence, people use social media to argue the “merits” of the case. People who have never seen the evidence, were not a witness, do not know any of the parties offer up legal opinions, and determine guilt or innocence based solely on a news story and the tidbits that other social media users post.

Facebook attorneys have already convicted or acquitted a Defendant, and the actual attorney doesn’t even have the evidence to review at this point. The actual attorney is waiting to make any final determinations until all evidence is received and reviewed. That will happen during the discovery process, and we will learn more about that in the next lesson – GETTING DISCOVERY AND REVIEWING EVIDENCE.

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