Criminal Procedure

A criminal case usually begins with an incident that attracts the attention of the police. The police investigate the incident. Often, they talk to witnesses and look for clues from which they might piece together what happened. Once the police believe they know what happened, they then decide what crimes they think were committed. They also decide who it is that they think committed those crimes. Armed with their conclusions about what happened and who did it, the police move on to the next step in a criminal case: the arrest.

The arrest is pretty straightforward. Typically, the police officer handcuffs and searches the person being arrested, puts him in a police car, drives him to the jail, and delivers him over to the sheriff’s deputies. The deputies then put him in a holding area, called “admissions,” where he is booked in, fingerprinted, photographed, and stripped of his property. He is kept there, usually for up to 2 or 3 days, in a not-terribly-comfortable holding tank, eating not-terribly-tasty food, and making do without the benefit of a shower or clean clothes. He gets to leave there when he either makes bail or is moved to a cell block, sometimes called a “pod,” where he is housed with the long-term inmates, called “population.”

In many cases, the first court appearance happens during this time while the arrested person, called the “defendant,” is being held in admissions. This appropriately-titled “First Appearance” hearing, often takes place in a courtroom at the jail within a day or two after the defendant is booked in. At the First Appearance, those defendants who haven’t yet made bail are brought before a magistrate judge. The magistrate gives information to each defendant about the crimes with which she is charged and the rights she has in defending against those charges. The magistrate also sets the date and time for the defendant’s next court appearance.

That next court appearance is called the “Preliminary” or “Commitment” hearing. It usually happens within a couple of weeks or so after the First Appearance, and, like the First Appearance, it is often held in a courtroom at the jail. At the Preliminary Hearing, the State’s attorney, called the “prosecutor,” presents evidence to a magistrate. Usually, that evidence consists of the testimony of one of the investigating police officers. The prosecutor asks the officer questions, and the officer answers them; thereafter, the defendant’s attorney questions the officer and, in some cases, calls defense witnesses to the stand to give more evidence. After hearing the evidence, the magistrate decides whether there is probable cause to believe that (1) a crime was committed and that (2) the defendant is the person who committed that crime. If the magistrate finds that there is not probable cause, he will dismiss. However, if he finds that there is probable cause, he will issue an order binding the case over – to the State Court if the case involves only misdemeanors, or, if it involves at least one felony, to the Superior Court.

The most important effect of the bind-over order is that it allows the State to keep the defendant locked-up until the case is disposed of, whether by plea, trial, dismissal, or otherwise. The defendant’s hope of avoiding such indefinite pre-trial confinement is bail. Bail is basically collateral, that is, a stake that a person offers up as a guarantee that the defendant will go to court when she is supposed to. The person who offers that stake is called the “bondsman,” and he could be a professional bail bondsman who puts up the defendant’s bail for a fee via a so-called  “surety bond,” or he could simply be someone who knows the defendant and who is, himself, willing and able to post the bail. He might post it with cash equal to the amount of the bail, called a “cash bond,” or he might post it with the equity in real estate that is here in Georgia, called a “property bond.” Either way, so long as the defendant goes to court when he is supposed to, nothing will happen to the stake – it will be returned to the bondsman.