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Complaint or An Information
Plea Bargain
Presentence Investigation
Presumption of Innocence
Affirmative Defense
Jury Nullification
"Harmless Error"

What is a Complaint? An Information?
A complaint is the piece of paper that starts a criminal case. It typically lists the charges against a person and the facts that form the basis of those charges. Depending on whether felony or misdemeanors are charged, the case will proceed on one of two tracks. In misdemeanor cases, the complaint remains the document that embodies the charges against the person. In felony cases, following a preliminary hearing, the state will file a formal document called an Information outlining the (usually the same) charges which the defendant will be facing.

What is Bail?
Bail means "monetary conditions of release." Any person arrested for a criminal offense is eligible for bail under conditions designed to make sure the person appears for court, the community is protected from serious bodily harm, and witnesses aren't intimidated. Bail is set at (or after) the initial appearance.

The judge can set one of two kinds of monetary bail, a cash bond or a signature (recognizance) bond. A cash bond requires the person to post an actual amount of cash before release. A signature bond requires the person to sign a bond promising to pay a certain amount if he violates his release, but releases the person without him paying the cash up front.

In addition to money, the court can set such other conditions as the judge thinks are necessary to protect the public and prevent further offenses. Commonly, defendants are ordered not to drink alcohol or be in bars. Other conditions tend to match the type of crime. A criminal charge relating to children might result in bail conditions that the person stay away from children. An offense involving the use of a motor vehicle might result in an order the defendant not drive.

What is a Plea Bargain?
Plea bargaining is the process by which criminal cases are settled. Typically, a prosecutor will make an offer to let the defendant plead guilty (or no contest) to either fewer charges than were originally filed, lesser charges than were first filed, or all the charges but with a recommended sentence that is more favorable than what the judge might be expected to give. On the defendant's side of this bargain, he has only one thing of value his right to go to trial, which is a right to force the prosecutor to prove the case in court with a jury, a time intensive process. If the two sides reach an agreement, it is presented to a judge in a guilty plea proceeding, the right to trial is given up, and the case is set for sentencing.

Plea bargains often get a bad rap, especially around election season. But the reality is without plea bargains, every criminal case filed would have to go to trial, instead of the 98% or so that plead. If this happened, the courts would grind to a halt, prosecutors would have to stop charging new crimes, cases would be dismissed on speedy trial violations, and your taxes would go through the roof to pay for all those extra judges and court staff to accommodate the case load. It's important to remember that when a person is first charged, only one side of the story is known, and as the other side emerges, it becomes clear that it would be fair and just for the case to be resolved for less than the original charges.

What is a Presentence Investigation?
A PSI is a report prepared by a probation officer about a person convicted of a felony. The investigator inquires into the defendant's criminal history, work history, childhood, mental condition, drug and alcohol use and abuse, and relationships. The report will also contain comments from the crime victim and other interested parties. It will calculate the cost of the crime. It will contain the defendant's version of events and statement about the crime. It will comment on what kind of treatment the defendant might benefit from. Finally, it will make a recommendation as to what the sentence should be: probation, prison or a fine.

What is the Presumption of Innocence?
The presumption of innocence is a legal principal that until a person is actually proved guilty, with real evidence, they must be considered innocent. It doesn't matter that the police arrested them and have said they did the crime. It does not matter that a prosecutor filed charges against them accusing them of a crime. The law continues to find them innocent until they are tried and convicted by a jury beyond a reasonable doubt.

What is an Affirmative Defense?
An affirmative defense is a special kind of defense to criminal charges. In most defenses, the defense is aimed at showing that the prosecution did not prove his case. For example, the alibi defense says "I couldn't have committed the crime because I was somewhere else." An affirmative defense, on the other hand, usually admits that the facts of the crime occurred and that the defendant did them, but asserts that the defendant should not be convicted anyway. For example, in a self-defense case, the defendant might say "Yes, I killed him, but he pointed a gun at me."

In some affirmative defenses, the defendant has the burden of proving the facts relating to the defense. So to take advantage of the "I thought she was 18" defense, the defendant bears the burden of establishing the evidence that led him to believe she was of age. Once the defendant raises that evidence to a sufficient degree, the state then must prove beyond a reasonable doubt that the defense did not exist.

What is Jury Nullification?
Even if the prosecution produces all the evidence necessary to convict and the judge tells the jury it should find the defendant guilty, the jury can still find a person not guilty, just cuz. The jury has the right to decide the case however it pleases for any reason, no reason or the wrong reason, and no one in the system can challenge it.

Truly, what happens in the jury room, stays in the jury room.

You will never hear anyone in court argue that the jury should behave this way. It is improper to do so, and really it is important for jurors to follow their duties and the instructions given to them and try to achieve as fair a result as possible. A system that openly operated on the random whim of the 12 people picked to be the jury that day would certainly be unfair.

What is Jeopardy?
No, Alec Trebeck won't be at your trial. Jeopardy is an old fashioned legal concept harkening back to the middle ages when a criminal trial was more of a true trial, a physical test you know, like when they tied someone up and threw them in the lake. If they sank, they were innocent. The rule developed over time that if you could survive that, it would sure be unfair to put you in jeopardy for the same thing again. Thus the rise of the Anglo-American concept that a person "shall not be put twice in jeopardy for the same crime."

The rule against double jeopardy comes down to this. Once jeopardy attaches, the state only has one chance to get its conviction. If the jury acquits, the prosecution can't do it again. If the prosecutor commits misconduct causing a mistrial, the defendant cannot be tried again. The only exceptions are if the mistrial is caused by the defendant or the jury is "hung." In the hung jury example, the defendant can be retried because no verdict was reached. (i.e., the witch neither sank to the bottom nor floated to the top.)

In Wisconsin, jeopardy attaches:

  • In a trial to the court without a jury when a witness is sworn;
  • In a jury trial when the selection of the jury has been completed and the jury sworn;
  • When a person enters a guilty plea and that plea is accepted by the court.
What is a "Motion"?
A "motion" is a written request for the court to issue an order. Seems simple enough. All motions have to have a caption with the case number and parties. Finally, motions must state the "relief sought" and give particular reasons why the request should be granted. Generally, that means that the motion should be requesting a legally recognized "relief" and should tell the court the facts and the legal cases and statutes that talk about facts similar to the ones presented.

Here are some more common motions filed in criminal cases:

  • objections to how the case came to be brought in court
  • insufficiency of the complaint, information or indictment
  • invalidity of the statute on which the prosecution is based
  • use of illegal means to secure evidence
  • admissibility of any statement of the defendant
  • whether Miranda warnings were adequately given
  • whether statements were voluntarily made
  • suppress evidence
  • suppress identification
  • preclude prejudicial evidence
  • for discovery
  • preclude prior convictions
What is "Harmless Error"?
With all the many rules, statutes, cases and customs governing a criminal case, mistakes get made. Maybe the DA was wrong not to disclose some piece of evidence, or the judge should have sustained that objection at trial, or the Complaint should have contained a more specific date. In criminal cases, with a person's liberty on the line, defense attorneys worry a lot about these kinds of errors, and we often argue that the error should lead to a conviction being overturned. Unfortunately, the higher courts often disagree. The rule, typically, is that if an error did not fundamentally affect a person's constitutional rights or contribute significantly to a guilty verdict, it is considered "harmless." When a court calls an error harmless, what it means is "Yes, that was a mistake, but we're going to let it go." The only errors that are not harmless are ones where the defendant can show he was prejudiced by the mistake.