Whether it is through firsthand experience or through a friend or family member, most Americans will come in contact with the criminal justice system some time in their life. If that contact happens to be in Texas, this is what you can expect.

Part II: Pretrial

Now that you’ve been arrested and (hopefully) bonded out, what happens next? How long until you go to trial? What do you need to do now? There are a lot of things going on between the arraignment and the trial. The details may change a little from county to county, but here is what usually happens:

The first thing that’s going to happen is that your case is going to go to an intake prosecutor, who will look over the police reports and determine whether there is enough evidence to charge you with a crime and what crime to charge. There are two basic levels of crime in most states in the U.S.: misdemeanors and felonies. In Texas, each type of crime is further divided into either Class A, B, or C misdemeanors, or 1st, 2nd, 3rd degree or State-Jail Felonies. These classifications determine the punishment range. For example, let’s say you get arrested for punching your neighbor (let’s call him Ted) in the face because he plays his trombone at 7:00 am on Saturdays. The intake prosecutor would look at the police report and any report by the victim and decide that that was an assault. An assault can be just about any level of crime depending on who the victim was, how bad the he or she was hurt and whether the perpetrator used a weapon. In this case, the prosecutor will see that Ted didn’t suffer any serious injuries, so the prosecutor will charge you with assault causing bodily injury, a Class A misdemeanor with a punishment range of up to a year in jail and/or a fine of up to $4,000. The prosecutor will file a document called an Information with the County Court and your case begins.

Let’s change this scenario: let’s say you and Ted got into a fight while you were showing your kid how to hit a baseball in your front lawn. You ended up hitting Ted in the hand with a baseball bat. In this instance, the intake prosecutor would see that Ted had several broken bones in his hand and a fractured wrist. Now he wants to charge you with Aggravated Assault with a Deadly Weapon, which is a 2nd Degree Felony with a punishment range of between 2 and 20 years in prison and a fine of up to $10,000. This is a much more serious crime, and it triggers a much slower process. When you’re charged with a felony, you have a right to be indicted instead of being charged by Information. An indictment is issued by the Grand Jury, a body of citizens that is selected in a similar way to a normal jury, but their job is very different. A normal jury (a Petit Jury) will sit and hear evidence for one case to determine whether the prosecution has proved their case beyond a reasonable doubt, which is the highest burden of proof the law allows, whereas the Grand Jury hears several cases during their term and they only need to determine if there is Probable Cause to bring the case trial. Probable Cause is a very low burden of proof to surpass. If you are trying to prove beyond a reasonable doubt that a building is on fire, you would need to have a witness or two that could say “I saw the building a few minutes ago, and it’s definitely on fire, I saw flames and everything. Here is a piece of the building I brought with me, note how the piece is currently on fire. This is a good illustration of the current state of the entire building.” On the other hand, making a showing of probable cause that the building is on fire might look something like this: “I saw some smoke or something a few minutes ago. It looked like it was coming from a few blocks away. It may not have been smoke, I don’t know, but someone should probably look into it.”

Grand Jury proceedings are strange animals. The defendant does not need to be notified, which means that you probably won’t know when your case is being presented to the Grand Jury. Even if you did, defendants or even their attorneys are not allowed to be present at the Grand Jury proceedings. So after you broke Ted’s hand with your trusty Louisville Slugger and bond out, you’re going to be going about your usual business, blissfully unaware that the police officer who arrested you is reading his report to a grand jury that are going to charge you with a felony.

You don’t have to sit and wait for an indictment to come down, however. If you hire a lawyer early enough, your lawyer can prepare a Grand Jury Packet. Even though defense attorneys are not allowed to attend a Grand Jury proceeding, they can submit evidence to be presented at the proceedings. Maybe your other neighbor, Jimmy who lives across the street, saw the whole thing and saw Ted threaten you before you hit his hand with your bat. Your lawyer will get Jimmy to sign an affidavit stating what he saw and submit it to the intake prosecutor, who will read the affidavit aloud to the Grand Jury. The hope is that the Grand Jury will believe that you were just defending yourself, and issue a No Bill, which is a document that says the Grand Jury determined that the case lacked probable cause to go to trial. If your case gets No Billed, it is over and you will be released from your bond.

A No Bill is a big win for a defendant. If a case gets No Billed, the defendant is never charged with a crime that will show up on public court records, and the arrest records will be easier to expunge, making it that much easier for the defendant to get back to his or her life before an accusation of criminal activity arose. Unfortunately, it’s also very difficult. Probable Cause is an incredibly low burden to prove, and even though the defendant’s evidence is presented to the Grand Jury, it isn’t presented by the defense attorney, making the whole process as one-sided as it can be. The reality is that if your attorney cannot prove that you definitely didn’t do what you are accused of, you can expect to be indicted.

After an indictment is handed down, your case has started in earnest and the real work begins for your lawyer. I’ll detail that process in my next post.