Reference to the process.
In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary.
After you're placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are right to remain silent and the right to have an attorney. After your arrest, you aren't required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.
Under the Miranda Rule, if you are in police custody you must be informed of specific constitutional rights before interrogation begins. Those rights are as follows:
- The right to remain silent
- The right to have an attorney present during questioning
- The right to have an attorney appointed if you are unable to afford one
Important to note is that Miranda rights do not have to be read until you are taken into custody. That means that you can be questioned by the police before being taken into custody, and anything you say at that point can be used against you later in court.
After you're arrested, the police will bring you to the police station for the booking process . You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.
Appointment of an Attorney
In Georgia, if you cannot afford to hire an attorney, and if you are charged with a crime that is punishable by incarceration, an attorney will be appointed to defend you. Usually a public defender will be appointed as your attorney.
Once a public defender has been appointed to defend you, the court generally will not appoint a substitute attorney unless you show that you are not receiving effective assistance. You do not have the right to choose a specific appointed attorney.
Once criminal charges are filed, you'll make a court appearance which is known as an "arraignment." If you are incarcerated, this will usually occur within 72 hours of your arrest.
During your arraignment, you'll be asked to enter a "plea" to the crime you've been charged with. Georgia pleas and corresponding definitions follow:
- Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and the fact that you were the one who committed that crime.
- Not guilty plea: A "not guilty" plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.
- No contest plea: A "no contest" plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.
- "Mute" plea: In Georgia, you may "stand mute" instead of making a plea. The court will then enter a plea of not guilty. By standing mute, you avoid silently admitting to the correctness of the proceedings against you until that point. You are then free to attack all previous proceedings that may have been irregular.
If you plead "guilty" or "no contest," there will not be a trial. You'll then be sentenced.
During the arraignment, the court will also:
- Set bail
- Refuse to set bail; or
- Release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations
"Bail" is money or property put forth as security to ensure that you'll show up for further criminal proceedings.
In Georgia, bail can be paid:
- In cash
- A pledge of property (if permitted in that court)
- A bail bond
A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.
You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime.
This right can be waived by asking for additional time for the preparation of your defense.
Speedy Trial rights in Georgia:
In Georgia, the law requires a defendant to make a speedy trial demand. Once that demand is made, a defendant must be tried within two court terms, as long as juries were empaneled and qualified to try the defendant.
Many prosecutors will consider "plea agreements," although it's not legally required. If you don't reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage.
Usually, if you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by:
- Pleading guilty, or
- Choosing a bench trial (a trial in front of a judge only)
If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury.
If you're found guilty after a trial, you're entitled to an appeals process. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.
In Georgia, generally you must file an appeal within 30 days after the judgment.
There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:
- Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
- Lack of sufficient evidence to support a verdict of guilty
- Mistakes in the judge's instructions to the jury regarding your c