Police officers can make an arrest when they have probable cause to believe that the person has committed a crime. Depending on the nature of the crime, police officers may also choose to cite and release the person. If the person poses a danger to the community or is intoxicated, an arrest will usually occur. After arrest, the person will be taken to detention where they will be photographed, fingerprinted and processed.
Pascua Yaqui Tribal law guarantees a hearing within 24 hours of being arrested. If the prosecutor is seeking jail time, a judge will appoint a defense attorney. If the defendant cannot afford an attor-ney, the Tribe will provide one at no cost. The judge will then set conditions of release, which may include setting a bond, requiring supervision by Pretrial Services, prohibiting the use of drugs or al-cohol, prohibiting contact with any victims, and attend all court hearings. The judge will consider the defendant’s criminal history, any history of failing to appear for court, the nature of the crime, and the views of the victim in making this decision. The next step in the process depends on whether the crime is a felony or misdemeanor.
Felonies are more serious crimes and include crimes involving weapons, crimes causing serious injury to victims, sex offenses, and some drug offenses. These crimes have the possibility of more jail time and even after release may affect the defendant’s rights and ability to be employed. Due to the seriousness of these crimes, these cases may take longer to investigate and to prepare for trial.
Misdemeanors are less serious offenses, although they are still against the law. They include liquor violations, littering, some traffic offenses, less serious assaults and disorderly conduct. Only in more serious misdemeanor cases will the prosecutor seek jail time, and even in those cases, the amount of time in jail will not be longer than nine months. When no jail time is being sought, the judge may not appoint an attorney.
All defendants accused of felonies are entitled to a preliminary hearing within 10 days of their initial appearance if they are in custody and within 15 days of their initial appearance if they are in custo-dy. At this hearing, the prosecutor will call witnesses such as the victim, other people who might have witnessed the crime, and a detective. This hearing is only before a judge and does not take as long as a trial. The defendant’s attorney will cross-examine the prosecutor’s witnesses. At the end of the hearing, the judge will decide whether there is probable cause to believe that an offense has been committed and that the defendant committed it.
Probable cause exists when a reasonable person given the evidence would believe that a crime has been committed and that the defendant committed it. If the judge finds probable cause at the preliminary hearing, the case will proceed to arraignment within 10 days.. The judge may review release conditions at the conclusion of the preliminary hearing.
No Probable Cause
If the judge at the preliminary hearing finds no probable cause, the case is dismissed and the de-fendant is released. Charges can be re-filed if new evidence comes forward in the future.
Most cases resolve with a plea agreement. The prosecutor may reduce the possible punish-ment in exchange for the defendant pleading guilty to one or more charges. During the negotiating process, another judge may conduct a settlement conference to see if the two sides can agree. If a defendant pleads guilty, there will be no trial.
All defendants charged with felonies have a right to a jury trial. Some misdemeanors are only eli-gible for a bench trial before a judge. During trial, the prosecutor will call witnesses and pre-sent evidence. The defense attorney may, but does not have to, call witnesses and present evi-dence. Then the prosecutor may present rebuttal evidence. The members of the jury must all agree as to whether the prosecutor has proven that the defendant is guilty beyond a reasona-ble doubt. This means that each member of the jury must be firmly convinced that the defendant is guilty. If the jury finds the defendant not guilty, the defendant is released and charges may nev-er be brought again for the same act. If the jury finds the defendant guilty, the case proceeds to sentencing.
Sentencing is the time for the judge to decide if a defendant who is found guilty at trial or who pleads guilty will go to jail or be placed on probation. If the judge sends a defendant to jail, this is also the time when the judge will decide how long the defendant will spend in jail. Sentencing is decided by the judge, not the jury. The prosecutor, the victim, the defense attorney and the de-fendant will all be given an opportunity to make a recommendation to the judge. On the most serious cases, the judge can send a defendant to jail for up to three years for each crime. If a defendant went to trial, he or she may also have their attorney file an appeal after sentencing if they believe the judge made any mistakes with their case. Once the judge announces the sentence, on-ly in rare cases can it be changed.
If the judge at sentencing decides to place a defendant on probation, he or she will be released from custody and ordered to report to the probation department within two days. Probation may or-der the defendant to have no contact with the victim, commit no crimes, complete community ser-vice, attend school, seek and obtain full time employment, enter into drug or alcohol treatment, at-tend counseling or anger management and pay restitution and fines. The length of probation de-pends on the seriousness of the crime and the needs of the defendant.
Violation of Probation
If a defendant who is placed on probation does not follow the rules set out by the probation of-ficer, they may be violated from probation and sent to jail. The judge will determine at a hearing whether it is more likely than not that the defendant violated probation. Defendants do not have a right to a jury trial for probation violations. If the judge finds that the defendant violated probation, the judge will sentence the defendant to jail. The length of time in jail will depend on the nature of the original crime the defendant committed. At the violation hearing, the prosecutor, the vic-tim, the defense attorney and the defendant may all make a recommendation for the length of time in jail.
Successful Termination of Probation
Defendants who follow all of the rules set out by the probation officer and who do not commit more crimes, will be successfully terminated from probation. Both defendants who successfully com-plete probation and those who serve their time in jail and commit no crimes for several years after being released may ask to have any civil rights that were lost restored and to have their conviction set aside. Those who have made positive changes can have a clean record for getting employ-ment.