Alaska Court System Self-Help

In general, criminal cases have the following steps:

• arraignment
• bail hearing
• discovery
• preliminary examination
• omnibus hearing
• the trial
• the verdict
• sentencing

Each step is described below.

If the charge is for a misdemeanor crime, the defendant will have an arraignment. If the defendant is in jail, the arraignment will happen within 24 hours of the arrest. If the prosecutor does not file a charging document by the time of arraignment, the judge releases the defendant from jail. The prosecutor can still file charges later. If the defendant was not in jail, the arraignment may be scheduled within a few weeks.

If the charge is for a felony crime, the defendant goes before the court within 24 hours after arrest and it is called a "first appearance." This may also be called a “Rule 5 hearing” or “initial appearance.” At the first appearance, a judge reads the charges and advises the defendant of his or her rights. There will be an arraignment at a later date.

At the arraignment, the judge tells the defendant

• what the charges are, and
• that if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer. Learn more about getting a court-appointed lawyer.

The defendant must enter a plea of guilty, not guilty or no contest.

A plea is the defendant’s response to a criminal charge. There are 3 options for a plea:

If the defendant pleads not guilty at the arraignment, the court will set a further hearing. If the case does not resolve, there will be a trial.

If the defendant pleads guilty or no contest, it depends on the type of crime what happens next.

Misdemeanors

If the defendant charged with a misdemeanor pleads guilty or no contest, the judge will tell the defendant about the penalties for the offense and the rights the defendant gives up with that plea. The judge makes sure that the defendant enters the plea voluntarily and without being under the influence of any substances, and that no one threatened or tricked the defendant into pleading guilty. In misdemeanor cases, the judge usually sentences the defendant immediately after the plea.

Felonies

If the defendant charged with a felony pleads guilty or no contest, the court tells the defendant about the possible penalties, makes sure there is a factual basis for the plea, and decides whether the defendant entered a knowing and voluntary plea. Then, the judge sets a date for sentencing or may sentence at the time of the plea agreement.

If the defendant is in jail at the time of arraignment, after the defendant enters a plea, the judge will:

• release the defendant on his or her "own recognizance" (which means the defendant promises to return to court on a specified date), OR
• set a bail amount and send the defendant back to the jail until the defendant posts the bail, OR
• refuse to set bail and send the defendant back to jail.

The prosecutor can add another charge for failure to appear. The defendant may lose the money they put up for a secured bond if they paid bail to get out of jail. If there was a third-party custodian who was supposed to make sure the person came to court, the judge can hold that person in contempt. The judge can issue a warrant for the defendant’s arrest.

In misdemeanor cases, if the defendant enters a not guilty plea at the arraignment and before the trial:

• The prosecution and the defense exchange information which is called discovery. Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
• The defendant can change his or her plea to guilty or no contest.

The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.

In Anchorage, the case goes to a pre-indictment hearing, grand jury or resolves.

In felony cases in other locations, after the arraignment, if the case does not settle or get dismissed the judge holds a preliminary hearing. At this hearing, the judge will decide if there is enough evidence that the defendant committed the crime to make the defendant have to appear for a trial. If the judge decides that there is enough evidence, the prosecutor will file a document called "the Information" which is similar to a complaint that states the criminal charges. Then, the defendant will be arraigned a second time based on the Information. At that time, the defendant will enter a plea and a trial date will be set. Before the trial:

• The prosecution and the defense exchange information. This is called "discovery."
• Either side can file pretrial motions, including motions to dismiss indictment, to dismiss the case, or to prevent evidence from being used at trial.
• The defendant can change his or her plea to guilty or no contest. The lawyers from both sides may talk about how the case can be resolved without going to trial.

A change of plea is when a defendant decides to change their plea from either not guilty to guilty or no contest in some cases. A defendant can make this decision because:

• the prosecutor may offer a deal to reduce or eliminate jail time;
• the prosecutor may offer a deal to reduce or eliminate some charges;
• the defendant does not feel like he or she will win at trial; or
• the defendant wants the case to end.

Many courts hold a preliminary examination which is a hearing where the judge will make sure that the evidence produced by the prosecutor’s investigation can establish probable cause that:

1. a crime was committed.
2. the defendant committed that crime.

A preliminary examination is conducted similarly to a trial, but there is no jury. The prosecutor presents witnesses and evidence to prove (1) a crime was committed and (2) the defendant committed that crime. The defense lawyer is able to question the witnesses and argue the weaknesses of the prosecutor’s case. After the prosecutor presents the evidence, the judge will make a determination.

If there is probable cause about these two facts, the court will allow the prosecution to move forward. The prosecutor usually meets this standard because it is much lower than the evidence needed to convict the defendant at trial. If the prosecutor does not show probable cause for any crime, the charge is dismissed. The prosecution can bring the same charges again later.

Felony defendants have a right to a grand jury within 10 days if in jail and 20 days if out of jail from the arraignment. (This is called "Rule 5 time" based on the criminal procedure rule that requires these timelines).

The defendant can waive or give up this required Rule 5 deadline for strategic reasons, often to negotiate a plea agreement. If the defendant wants the Rule 5 deadline, the prosecution most often takes the case to grand jury to try to get an indictment before the time runs out.

If the prosecutor decides not to go to the grand jury within the Rule 5 time, this does not mean the case is dismissed forever. The prosecutor can take the case to the grand jury within 120 days under Criminal Rule 45.

The prosecutor must file the Information within 15 days from the of the preliminary examination hearing.

The trial must start within 120 days of the arraignment on the Information, unless the defendant agrees to have the trial later (known as "waiving time"). It is very important for defendants to get advice from an attorney before they "waive time." Even if the defendant does not waive time, there are reasons why the trial may take longer.

Depending on the issues and the law, a defendant may be let out of jail before the trial. The defendant can be released from jail:

• by paying bail or posting a bond; when setting the bail amount, the judge takes into account the seriousness of the crime, whether the defendant is a risk to the community, and whether he or she is a "flight risk" and likely to run away.
• on their own recognizance (OR release) without posting bail or with an unsecured appearance bond, which means the person will come to their court dates on their own;
• by having a third party custodian who is a person who will be with the defendant at all times or those specified in the conditions of release (like when the defendant is not at work) to make sure the defendant goes to court and follows the conditions of release; or
• by having an electronic ankle monitor which tracks the defendant’s location.

The defendant’s attorney can request a bail hearing and argue that the defendant won’t pose a danger to the community or victim (if there is one) if released. The bail hearing usually happens after the arraignment, unless the defendant posted bail at the police station. The defense attorney argues that the defendant can be safely released and the prosecutor either agrees or argues for restrictions. The judge decides whether to release the defendant before trial and what conditions are required.

Sometimes, a judge releases a defendant:

• on their own recognizance ("OR release") without posting bail; or
• if the defendant posts an unsecured appearance bond; or
• if the defendant posts a secured bond, which means leaving money or other property with the court, or getting a bail bondsman to put up the money (usually for a 10% fee). The judge often makes the defendant post a secured bond if the defendant:
  • is accused of a serious felony;
  • might not appear in court; or
  • might hurt the victim, other people or pose danger to the community.
• with conditions such as restrictions on drinking, driving, or contacting the victim. The judge must consider the safety of the victim and the community in any bail release decision. The judge can appoint a third-party custodian, usually a relative or an employer, who must see that the defendant goes to court and follows the conditions of release.

When setting bail, a judge may require a defendant to post:

• an Appearance Bond (this type of bond requires the defendant to appear for all court hearings, including sentencing and post-conviction hearings)
• a Performance Bond (this type of bond requires the defendant to follow all conditions of release set by the court), or
• both types of bonds.

When a judge requires both types of bonds, the judge must set a separate amount for each bond. There are different types of bonds:

• Unsecured Bond: A promise to pay the bond/bail amount if the defendant does not show up in court or follow the conditions of release. The defendant is required to sign the Unsecured Bond form. The defendant does not have to pay money or put up any property to insure payment.
• Cash Bond: A cash bond requires the defendant to deposit cash amounting to either 10% or 100% of the bail amount ordered in the court registry. The defendant promises to pay the full amount of bail if he or she fails to follow the bond conditions. The defendant is required to sign the Cash Bond form.
• Surety Bond: A surety bond requires the defendant and a surety to promise to pay the entire amount of bail if the defendant fails to follow the bond conditions. A surety is someone who promises to pay if the defendant does not pay. Both the defendant and the surety are required to sign the Surety Bond form.
• Bail Bond (sometimes called a Corporate Bond): A bail bond is one issued by a commercial bonding company (bail bondsperson). It has the same effect as a surety bond. The bonding company is the “third person” guaranteeing payment.
• Property Bond: A property bond requires the defendant (if owner) or the owner of the real property to pledge the value of that property to the court as security for full payment of the bond amount if the defendant fails to follow the bond conditions. The defendant and the third-party surety (if there is a third-party surety) must complete and sign page 1 of the Surety Bond form.

If the defendant does not follow the conditions, the judge can raise the bail, change the conditions, or put the defendant in jail.

The prosecutor can file a new charge of violating the conditions of release, or a separate charge of failure to appear if the defendant skips the court date. The defendant may lose a secured bond for failure to appear. The judge can hold a third-party custodian in contempt of court if he or she fails to tell the court about any violations of the conditions of release.

Discovery is the process where the criminal defense attorney and the prosecution exchange evidence before trial. The exchange of evidence is an important part of the criminal investigation and trial preparation. It can involve copies of the arresting officers’ reports, drug or alcohol test results and statements made by prosecution witnesses.

Outside of Anchorage, many courts hold an omnibus hearing after the prosecutor charges a defendant with a felony, shortly before the trial date. The defense and prosecution make motions, which are requests for legal rulings by the judge before trial. The judge decides what evidence to admit, whether to order physical or psychological tests, which witnesses may testify, when the trial will take place, and other questions. Some courts such as Anchorage do not hold omnibus hearings.

Yes. Most criminal cases do not go to trial. Defendants often decide to plead guilty or no contest between the arraignment and the trial. Sometimes the defendant’s lawyer will negotiate with the prosecutor to reach a plea bargain or plea agreement that includes conditions about the arrangement.

In a plea agreement (also called a plea bargain or plea deal), the defendant agrees to give up the right to trial, and pleads guilty or no contest. In return, the prosecutor agrees to dismiss or reduce some charges, or to make or to make specific sentencing recommendations or the sentence may be up to the judge to decide called “open sentencing.” If the defendant decides to plead guilty or no contest, the judge holds a hearing to be sure the defendant:

• understands the right to trial;
• makes his or her decision knowing and voluntarily;
• is giving it up on purpose, and
• understands the conditions of the plea agreement.

Yes, but only in rare cases. Judges can reject an agreement that is too lenient or too severe under the sentencing laws that apply to the charge(s) to which the defendant pled. Judges cannot reject a "charge agreement" where the prosecutor bargains to reduce the charges against the defendant; the judge can only consider the appropriate sentence for the reduced charges. A judge cannot reject a plea agreement just because the judge thinks that the prosecutor could prove a more serious charge.

It varies based on the specifics of each case. Defendants in felony cases often file motions to dismiss their indictments, arguing that the evidence presented to the grand jury would not result in a conviction even if it is all true. Lawyers may need more time on discovering the evidence and may file motions about discovery. Defendants also file motions to suppress (not allow) some or all of the prosecution’s evidence, arguing that the state broke laws in getting its evidence. The judge needs time to decide motions and sometimes can only do so after holding an evidentiary hearing or oral argument. If the judge dismisses charges because of an error that can be corrected, the prosecutor may file the charges again. Some defendants decide that filing a motion to suppress or dismiss is worth some delay because winning the motion could result in dropping the entire case or reaching a favorable plea deal.