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Being Proactive

This is a large part of what we do for our clients. We tell them how to relate to the DA, to the judge, or even their probation or parole officers. Some things we can focus on include common mitigation strategies, how to preserve evidence, and how to deal with their public defender. In this legal DIY section, we’ll discuss:

  • Stages of a case
  • What to expect with the DA
  • Understanding charges
  • How to get police reports and discovery
  • DUI tips/tricks (coming soon)
  • Domestic violence considerations (coming soon)
  • Common mitigation strategies
  • How to preserve evidence
  • Dealing with a Public Defender

Stages of a Case

Often what we get questions about initially is what to expect in court. That answer usually depends on what type of case it is, whether it’s a petty offense, misdemeanor, felony, municipal offense, etc. They all have different terminology. What you can expect in each case is some sort of initial arraignment or first appearance at that first court date. During this first appearance, you are literally going to be told these are your rights.

Do you wish to go forward and speak with the district attorney? Do you want a lawyer? Do you need a court appointed lawyer? Would you like to just plead guilty or plead not guilty?

One thing to remember is you are never obligated to plead not guilty or guilty at the first appearance. Some judges may ask the district attorney to move the case along and they may ask a pro se defendant to enter a not guilty plea if they’re not ready to resolve the case that very day, but you’re generally not required to set for a trial on the very first day in court because of our current judicial makeup. It’s encouraged that you actually negotiate with the other party prior to deciding we can’t agree on anything. We need to go to trial in the criminal justice system. After that initial arraignment and your initial choice, you can still assert your right to an attorney at a later date.

So, if you want to speak with the district attorney pro se originally, and then later after hearing their offer realized that it sucks and you want to speak to an attorney to help you, you can absolutely do that at any later date as well. You have a constitutional right to have an attorney represent you at any stage of proceedings after the initial appearance and the advisement of your rights. You’re most likely going to come back to court for another date. Some jurisdictions call this a disposition date or a disposition. Other jurisdictions call this a pretrial conference. In any event, this is a date for you to perhaps provide mitigation, present some of your own evidence to the district attorney, or take a plea deal in open court.

In many cases, we anticipate multiple pretrial conferences before a case proceeds to hearing because negotiations can be lengthy on all misdemeanors and felonies. Things are complicated because at the arraignment date, you often will have a mandatory protection order entered as well to have multiple court dates with an MPO in effect can impact your ability to go to work and to even go home. It’s common in domestic violence cases that several court dates need to go by before a judge will lift a no-contact order on the mandatory protection order. This period known as the cooling-off period can be short or quite long, depending on the facts of the case, the history of the parties involved, and the perceived risk to the victim or the public at-large by the judge. In cases where there are multiple pretrials and a mandatory protection order, you can ask to address the protection order at any court date, but you’ll need to give advanced notice to the prosecutions that they can also reach out to the alleged victim. Likewise, you can ask to address bond at any court date. So, if you are in custody, you can be repeatedly asking for reduction in bond. For more on how to afford bond, check out our other section about Bond. In addition, if you want more information about mandatory protection orders, please check the section of Mandatory Protection Orders (coming soon).

After the initial negotiations have stalled, there is an extra felony court date that’s early on in the case. Typically, if someone is in custody on a major felony, they are entitled to what’s known as a preliminary hearing (or PH). That PH must be held within 35 days if the client is in custody, and it comes quickly after the initial arraignment. Some district attorneys require defendants to waive PH in order to continue negotiating on an acceptable deal to you. But if the parties cannot agree on any sort of plea deal, at least initially a preliminary hearing is a good way to move the case forward. In that hearing a judge will hear testimony mostly from an officer or two, rarely from a victim, and they will determine at that hearing whether probable cause existed at the time of the arrest. Probable cause is of very low barrier to meet. And this is just an initial determination that there was a probable case. It’s similar to a pre-arrest hearing or review of affidavits to establish probable cause for an arrest warrant or a search warrant.

After a PH, the matter can be dismissed for lack of probable cause. Certain charges may have to be dropped for lack of probable cause or the case in its entirety can be bound over to District Court here in Colorado for continued negotiations. The matter is going to have to either plead or set for trial. Trial dates are typically within the first six months in Colorado. After you plead not guilty, Colorado has a six months speedy trial deadline in our statutes. What that means is the court must set a jury trial date within a specific month period after the entry of a not guilty plea. Typically, trials do not go forward within the first six months on the first setting. Often, it’s possible to have to come back multiple times for trial dates before trial actually happens.

Some jurisdictions will set multiple cases on the same date for trial, and they’ll take the oldest case first with the most pressing speedy trial deadline. You may be second or third up in your given jurisdiction and may be required to have a different judge hear your case. But prior to trial, there’s usually also a Motions Hearing deadline and then Motions Hearing date. At the Motions Hearing date, the motions hearing officers and occasionally, but rarely victims will testify about constitutional issues. So typically, as a defense attorney, we’re filing multiple issues, multiple constitutional motions on your behalf, challenging these like the fourth amendment basis for the stop lack of veranda, voluntariness of statements, or fifth amendment violations in general, skilled motions. Practice is an art form that is not really taught in law school, and something only a really seasoned attorney can be good at. It is not recommended that you litigate your own motions pro se on a serious misdemeanor and felony cases, but for small municipal or petty offense cases, it is not uncommon for someone to proceed pro se after the motions hearing. Again, the judges, the determination of whether the case will proceed. If there are multiple constitutional violations or evidence is stricken as unconstitutionally obtained, it can affect the viability of the case as a whole. Here at Colorado Lawyer Team, we have won multiple Motions Hearings, and even dismissal of cases outright at motions.

Trial & Sentencing

A trial occurs usually to a jury for all misdemeanor and felony cases. Automatically some municipal cases require you to pay a jury fee before you are entitled to have a jury hear your case. Some petty offenses are likewise limited if you do not request a jury upfront. You should be prepared with all of your exhibits and all of your witnesses in-person and ready to go. That means you will have needed to talk with all of your witnesses before they take the stand. It is not recommended that you handle a trial for yourself on anything other than a traffic matter, simply because of the disastrous consequences if you lose.

Every trial requires similar jury instructions that can be found online, but some jury instructions need to be carefully crafted by you or your defense team to include your theory of defense. In addition, some defenses require you to give notice in advance to the prosecution of the intent to provide that defense at trial. Specifically, alibi defenses have deadlines associated with them before you’ll be able to present an alibi at trial. This means you have to let the prosecution know in advance of trial that there is an alibi witness so that they have an opportunity to investigate and or interview such a witness. Trials can vary in time from half-day trial to multiple day trials. For most traffic and municipal cases, you should anticipate an entire day away from work to handle these cases. Additionally, you may end up going to a trial setting or a trial readiness conference several times before the case is actually going to proceed to trial.

Sentencing occurs either as a result of a plea deal or as a result of a guilty verdict at trial. You may be found guilty of some or all of the charges against you, but in order to go to a sentencing, you have to have at least been convicted of one count in the case against you. Obviously, if you are not convicted, you are not guilty of a single count. You can plead Nolo Contendere, which is like “no contest” in some cases but only with the DA’s approval. If you are not convicted of anything, you’re considered innocent and you’ve been fully acquitted. At that point, you’ll want to review our section on Sealing Your Record (coming soon).

Or it can be set over for the court to obtain different evaluations or documents, which may be helpful for sentencing. You do generally not have the ability to present character witnesses during trial. And for most smaller cases, character witnesses will not be heard from at sentencing either, but that does not mean that you shouldn’t prepare a sentencing packet. Typical sentencing packets can include things like reference letters, employment verification, community service you’ve completed in advance, other classes you’ve also done, or even going so far as to get releases from therapists or medical records providers in order to document some of the mitigation previously provided to the district attorney. In smaller misdemeanor and traffic cases, it’s very likely that probation will be assessed with or without jail as a condition. In any event, misdemeanors cannot have more than 60 days of jail and probation assessed at the same time. However, if you violate probation, the entire sentencing range is available to the judge for mandatory sentencing guidelines. In addition, if you are sentenced according to a plea deal, you often waive your right to challenge any sentence, unless it’s an open sentence by virtue of signing the plea, because it’s a stipulation, it’s a contract with the defense attorney. You know what you’re going to get upfront. If it’s an open sentence as a result of a plea or an open sentence of service, a guilty verdict at trial, generally speaking, the judge can do whatever the judge wants at which point it is imperative that you have a good sentencing argument available to you as well. Not only is an apology necessary in most of these cases, but the courts often want to understand why you would have gone to trial or why you didn’t choose to go to trial. In addition, you should be prepared to address the court with an apology for both the court’s time, as well as the victim. If it’s a victim’s case, you will not be allowed to speak to a victim at any time during the proceedings, and you should direct all of your comments at all times to the court.

Lastly, sometimes it’s impossible for courts go to immediate sentencing because the statutes for sentencing require specific evaluations prior to entering a sentence. For example, DUI requires an alcohol evaluation on any second or subsequent offense prior to sentencing. That means sentencing normally gets set out about 60 days and you are remanded nominated. You are ordered to go to probation to set up an alcoholic evaluation pending sentencing. You may also be ordered to do things like community service or start your alcohol classes in advance of formal sentencing. In any case, if you have done pre-sentencing mitigation efforts, judges will always take those into account. It’s a common question from folks that we sent for community service about whether they have to go through the alternate sentencing department to be able to do their community service before being sentenced. No, you do not. And yes, you should still do it. And in decades of doing this kind of work, we have never seen a judge not give you credit off of your ultimate sentence for the community service you do in advance.

What to Expect With the District Attorney

Negotiating with the district attorney is often a difficult thing to do depending on the jurisdiction. Some DA’s do not even have the ability to change a standard offer, especially on traffic and low-level misdemeanor crimes. There are even mandatory sentences required by statute. Having an experienced attorney or someone you can just ask, “Is this a reasonable offer?” under these circumstances goes a long way to putting your mind at ease when it comes time to take a deal or not. We can also provide information about standard offers in most jurisdictions throughout Colorado and suggestions on how to mitigate those offers.

Most of the time when you go to court for the very first time you were going to be presented either with the video or written or verbal advisement of the rights that you have in court. That includes things like the right to go to trial, the right to have an attorney represent you, the right to remain silent, and the right to confront witnesses against you or present witnesses on your own behalf. It’s called a Rule 11 or a Rule 5 Advisement. And those are the rights that you would give up if you plead guilty. Ultimately at a later date after that initial advisement, you can request more time to get an attorney. You can request more time to think about an offer, or you can set the case for trial. You are not required in most counties to do a not guilty plea or a guilty plea that very first day, but some municipal jurisdictions will automatically enter a not guilty plea.

Even when you’re asking for more time to talk to an attorney, all that means is that the deadline starts running for the trial to be heard. Ultimately you may end up needing to waive speedy trial in order to get your goals accomplished and get yourself some more time, whether that’s coming in a couple of times to continue the case, because you’re trying to get funds for an attorney, or because you need to talk with your boss where you need to resolve this major project before you can possibly look at going into custody, whatever the case may be. You usually have at least a handful of Pretrial Conference dates or Dispo dates as they are commonly known. What you should never do during these Dispo meetings is talk to the district attorney about the facts of your case. They present an offer to you either at the first one or the second hearing. And generally speaking, if you don’t have an attorney representing you, you can have them write it down for you on a note or email it to you so that you can then go over it with your boss, your family, or an attorney on a DIY package, like one of ours. But what you should never do is actually talk about the case from your perspective. Let me just tell you “what happened” is not a phrase that should come out of your mouth. What you say to the district attorney in negotiations should not be used against you in court, but it often is. What’s more district attorneys are now regularly conducting these conferences in the courtroom, which means half the time they are audio recorded and any admissions may be caught on tape.

That’s why it’s often common for defense attorneys to speak with their clients outside of the room and go speak with the district attorney on your behalf without you present. But if you’re representing yourself, one of the big things that we can do is tell you how we would approach the problem and then give you suggestions on how you can handle it yourself.

Understanding the Charges

Often, people don’t even realize what they’re being charged with. One of the first things we do is look at the complaint and information or summons or ticket that is giving the charge that you are being alleged to have committed. We then go out and define that crime. We then provide you with detailed information about what the district attorney or prosecutor would have to prove if you were to go to trial as well as what it actually means to say beyond a reasonable doubt. It’s not beyond all doubt felonies and misdemeanors and petty offenses carry with them, not just different elements of the offense, but also different sentencing ranges that would ease.

Typically, these include the department of corrections. Time misdemeanors typically include County jail time. Petty offenses usually don’t include any sort of jail time whatsoever, but hefty fines. It’s a misnomer in Colorado for a victim to be able to press or drop the charges. The only people who can press charges were dropped charges are the district attorneys, city prosecutors, or whoever’s charged with prosecuting the offense for information on the presumptive sentencing ranges. See our substantive clause sections on the types of crime that we cover here, and certainly link to practice areas.

How To Get Police Reports & Discovery

Half of the battle is understanding what to do in a criminal case. Even a low-level offense is understanding where to go and who to talk to and who controls what information. Typically, the district attorney city prosecutor, or police department may have police reports pertaining to your case.

If you have an animal case, animal control may or may not maintain their separate records under a different department than the police as well. Code Enforcement Rule 16 governs County and district court evidentiary procedures, and the district attorney is required to gather and provide all evidence to be used against you. Failure to do so may mean that items are not allowed to be presented into evidence and rarely your case could be significantly pled down for failure to disclose key evidence in a timely manner at the city or municipal level, you will often see discovery spread across a number of different agencies. And the municipal rules of discovery do not require the seam due diligence by the prosecutor’s office to provide all the evidence upfront and in advance.

We generally need to have investigators provide more information in municipal cases because of this fact what’s more electronic discovery is commonplace in County court and District court matters. So, all misdemeanor felonies and petty offenses at the County level generally include electronic discovery from the district attorney’s office. Unfortunately, most city offices have not caught up with them. Many city prosecutor’s office still requires us to go in-person to obtain copies and to pay in advance for all such copies. Some cities also will not accept payment by any other needs, besides check or money order. Also, many such cities also require you to make an appointment in advance before you will be able to pick up discussions. Lastly, you should be prepared to get discovery both on CD, DVD, junk drive, or thumb drive, and in hard copy, you should be prepared to bring your own disks to avoid some of the fees associated with using the district attorney or city prosecutor’s materials. In any case, we’ll usually give you the number and location for a prosecutor’s office handling your case, where you should request discovery and copies of police reports. Police reports alone may not be enough. You should also request all the media in the case. This includes things like photographs, badge camera, and nine 11, or dispatch recording. As seasoned attorneys, we often have checklists that we look for in every single case to make sure that we have all of the evidence available to us. If we don’t have all the evidence available to us, we can certainly advise you about possible motions to file in your defense based on things like destruction of evidence or Rule 16 and Brady violations.

Common Mitigation Strategies

Mitigation possibilities are never-ending. Usually, we choose about three to five action items to help our clients get started with a mitigation. For example, with our traffic cases, we regularly advise a driving class for DUIs. We regularly require them to do their upfront sentencing requirements because those are set by statute. Those are also the same requirements that are necessary in many cases, to get your license back after a DMV revocation hearing. In domestic violence cases, it’s typical that we will get our clients into some sort of counseling, but usually as an individual and not as a couple. Couples counseling is only allowed in situations where the offender has already plead. And district attorneys will look down on a joint counseling session for that reason. In addition, we’ll often do things like theft classes, or make recommendations about where you can do community service. You can even do community service online or socially distanced during COVID.

How To Preserve Your Evidence

Evidence can be destroyed by the prosecution, but most likely what ends up happening is evidence is simply erased, lost, or written over. A prime example of this is someone who only has pictures on their phone, not backed up in the cloud, and not emailed to themselves. The problems with being able to access data on phones are plentiful even for law enforcement with an adequate search warrant, and it can be even harder for a defense investigator without the resources of the FBI to access materials on cell phones themselves. Cloud-based services are a great way of backing up the data that’s on your phone, your email, or on your camera. Social media platforms themselves have built in ways to have videos or messages disappear. Snapchat is a prime example of this, but Instagram likewise has videos that time out. And if you don’t post something to your feed, but only to your story, it changes how long that can be available.

Once that evidence is gone, typically it is entirely gone and unable to be retrieved even by the defense with adequate permission or by law enforcement with a search warrant. Phone records can likewise be difficult depending on your provider. A lot of what we recommend our clients do when they first come to us is start thinking about the types of evidence they will need to prove their case. We have entire questionnaires built around helping you gather the evidence necessary to either defend or prosecute a lawsuit.

Dealing With The Public Defender

A good rule of thumb to remember with the public defenders is that there are many, many cases that the public defenders work on, on a daily basis. Unfortunately, they’re also often in court all day long. Sometimes, the best time to reach your public defender is first thing in the morning before docket hearings. So, between 8:00 AM and 8:30 AM. Other options are our calling in the afternoon, between 4:30 PM and 5:00 PM. Of course, the best that is to always get your public defenders email address and ask them when they prefer a phone call from you or schedule a time to actually speak with them.

The biggest complaint we see is that public defenders are unresponsive. That may not be necessarily true, but could stem from the fact that they are overworked and underpaid. We are here to help you communicate effectively with your public defender, whether that is sending them the mitigation you’ve done in your case, see our Mitigation Section, or by giving them information about your loved one who’s in custody and working on numerous classes in order to get out of custody. Public defenders need that type of communication. And just because they may not be able to respond to you doesn’t mean you should stop contacting them and helping them build their case file.