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 FACT SCENARIO
1. Police Investigation
2. Arrest
3. Initial Appearance
4.
Time and location of the hearing
5. County Attorney
6. Filing charges
7. Warrant or summons
8. Preliminary Hearing
9. Grand Jury
10. Arraignment
11. Trial
A jury trial proceeds as follows:
12. Probation presentence report
13. Sentencing
Sample
Criminal - Civil Child Abuse Definitions
FACT SCENARIO
Police officers were called to investigate a report made by a neighbor who heard a
child screaming in a next-door apartment. Upon arrival at the apartment complex, the
officers went to the apartment in question and spoke with the occupants -- the mother
(Beth), her boyfriend (John), and a five-year-old child (Beth's daughter, Alison). During
the investigation, officers questioned John and Beth about bruises that were evident on
Alison's body. Both John and Beth stated that the bruises were the result of an accident.
The police officers continued to investigate this incident and also notified the
Department of Social Services (DSS). The prosecutor, however, eventually decided not to
file charges.
A concurrent DSS investigation revealed serious concerns about John and his attitude
toward Alison, about Beth and her view that physical discipline toward Alison was
appropriate and necessary, and about Alison and her apparent fear of John. Subsequently,
upon a finding of abuse and neglect in the juvenile court, Tom was appointed as a CASA for
Alison and a protective order was issued in the case. The protective order required that
John and Beth abstain from abusive or offensive conduct toward Alison and refrain from any
physical discipline of her whatsoever. In addition, the order required that John and Beth
fully cooperate with DSS and Mental Health, and allow DSS and CASA access to Alison's
home.
Further, John was ordered not to have any contact with Alison unless it be through a
supervised visit conducted by DSS. This order was issued prior to the prosecutor's
decision to not file charges.
John did plan a visit with Alison at DSS. During the supervised visit, John convinced
the supervisor to allow him and Alison to go by themselves to the water fountain for a
drink. John and Alison returned a few moments later.
Several weeks later, Alison arrived at school and was having difficulty sitting in her
chair. She complained of feeling pain and, upon examination of her back, legs, and
buttocks, Alison's teacher discovered numerous welts. When questioned about the welts on
her body, Alison stated that John had moved back into the home and was responsible. The
teacher made a report, which resulted in Alison's being removed from the home and being
placed in foster care. She later told Tom that she had lied about the bruises; they
resulted from her falling down the stairs.
Based on this report, the prosecutor decided to file criminal charges for the both the
prior and recent incidents of physical abuse. John was arrested and held in jail. Although
Tom did not attempt to reach John after he was arrested, John sent Tom a letter stating
that he was not guilty and that he had no knowledge of the marks on Alison's body.
Tom never contacted the prosecutor and was unaware of how the criminal case was
progressing. He also did not know there was a victim advocate assigned to the criminal
case.
EXPLANATION OF NOTES CRIMINAL JUSTICE SYSTEM Ref 1
(based on Maricopa County, Arizona)
1. Police Investigation
When the police have completed the investigation of a possible crime, the officer in
charge of the case submits a police report (paper referral) of the crime to the County
Attorney's office to determine if charges will be filed. Police may either arrest the
suspect prior to submitting the report, or submit the report without arresting the
suspect.
2. Arrest
When a suspect is arrested, he/she is booked into jail. If the suspect has not already
been fingerprinted and photographed in relation to this charge, this is done at the time
of booking.
3. Initial Appearance
This is a hearing held before a magistrate or justice of the peace to do the following:
a. Inform the defendant of the charges and appoint an attorney
If the defendant qualifies as indigent, he will have an attorney appointed for him. In
most cases this will be a public defender, an attorney who works for the county public
defender's office. However, if there are multiple defendants (only one defendant in a case
may be represented by the public defender) or a conflict of interest exists, a private
attorney, under contract to the county, may be appointed to represent the defendant.
b. Set terms and conditions of release
If the defendant is in custody, a bond may be set or he/she may be released on his/her
own recognizance (promise to appear without bond being set) or to a third party. If the
defendant is out of custody, a bond may be set (in which case the defendant may be taken
into custody until the bond has been posted), or he/she may remain out of custody on their
own recognizance or in the custody of a third party.
The defendant may also be placed under certain conditions at this time, such as having
no contact with the alleged victim or witnesses, being ordered not to leave the state, or
to undergo drug testing.
c. Set date for preliminary hearing
Unless an indictment has been issued by the grand jury, the defendant has a right to a
preliminary hearing (to determine if probable cause exists) within a specific period of
time. The initial appearance magistrate will notify the defendant of this date.
4. Time and location of the hearing:
1. If the suspect has been arrested and jailed, the initial appearance must take place
within twenty-four hours of arrest, and this hearing is held in a courtroom at the jail
facility.
2. If the defendant is not in custody and a complaint has been issued, the hearing is
held at the justice court in which the complaint was filed and is presided over by the
justice of the peace for that precinct.
3. If a defendant has been indicted and a summons has been issued, the initial
appearance is held at the time of the arraignment.
5. County Attorney
All police reports in which a suspect has been charged by the police with a felony
offense (a crime for which, if convicted, a person could be sentenced to prison for a year
or more), whether or not the suspect has been arrested, are reviewed by a county attorney.
The attorney must decide to proceed in one of three ways:
1. File charges immediately if the police report is complete;
2. Return the report to the police for further investigation; or
3. Decline prosecution.
Prosecution may be declined for several reasons; the state may not be able to prove
beyond a reasonable doubt that the defendant committed a crime, no crime was actually
committed or the appropriate charge is a misdemeanor (a crime punishable by up to six
months in jail) and should be submitted to the appropriate city prosecutor for review.
If the suspect has been arrested, the reviewing attorney must make a decision within
forty-eight hours of the initial appearance (excluding weekends and holidays) or the
suspect will be released from custody. However, this release does not preclude charges
from being filed at a later time.
6. Filing charges
The reviewing attorney may either file a complaint charging the defendant with a crime
(in which case a preliminary hearing will be held), or take the case to a grand jury who
may issue an indictment.
Both a complaint and an indictment set forth the nature of the crime, the date(s) of
occurrence and the applicable statutes.
7. Warrant or summons
If a suspect is not in custody at the time a complaint or indictment is issued, he or
she may be notified of the next court date by either a warrant or summons. An arrest
warrant notifies law enforcement that the suspect should be arrested when he/she is
located. Warrants may authorize law enforcement to arrest a suspect anywhere in the United
States, or they may be confined to arrests in Arizona alone. If a suspect is arrested out
of state, he or she must be extradited (or waive extradition) in order to be returned to
the state.
A summons is served on the suspect like a subpoena and notifies him or her to appear in
court at the date and time indicated; if the suspect fails to appear, a warrant may be
issued for his or her arrest.
8. Preliminary Hearing
A preliminary hearing is a proceeding to determine if probable cause exists to believe
a crime has been committed and the suspect committed it. This hearing is held before the
justice of the peace of the precinct in which the crime occurred. Less evidence, and
therefore fewer witnesses, is needed than at trial. A victim or witness may be subpoenaed
for the hearing or the prosecutor may rely on a police officer to testify to the victim's
statement, as reliable hearsay is allowable, but in most cases the victim will be asked to
testify. All testimony is recorded by a court reporter. Once the State has presented its
evidence, the Justice of the Peace must either find that probable cause exists or dismiss
the charges for lack of probable cause. If probable cause is found, the defendant may be
allowed to put on an offer of proof to show that probable cause does not exist, but this
usually occurs only if the Justice of the Peace feels the defendant's evidence would rebut
the finding of probable cause.
If probable cause is found, the defendant is bound over (held to answer) to Superior
Court and an arraignment date is set.
The defendant may waive a preliminary hearing, thereby effectively transferring the
case into Superior Court. The defendant may also waive his preliminary hearing and plead
guilty (waiver with a plea) at his arraignment. This plea may be to the charge or to a
lesser offense; the agreement is worked out with a deputy county attorney, the defendant
and counsel.
After the defendant is held to answer, the County Attorney files an information, in the
same basic form as a complaint, which is filed in Superior Court. At this time the case is
given a CR (criminal) number, which is the way the case will be identified in Superior
Court. An indictment is also given a CR number when it is filed.
The preliminary hearing can be a difficult part of the criminal process for a victim or
witness. The defense attorney may use the hearing as a way of "sizing up" the
victim or developing inconsistent statements. A jury is not present, so attorneys may be
more zealous in their questioning of a witness.
9. Grand Jury
A Grand Jury is another type of probable cause hearing, but neither the defendant nor
his attorney is present. It is most often used in cases where the victim has been
physically assaulted by the defendant, complicated cases, cases involving undercover
operations, or cases in which the crimes were committed in several precincts.
Grand Jury proceedings are secret. The Grand Jury is made up of sixteen jurors who are
selected to serve on a panel for approximately three months. Each Grand Jury panel meets
twice a week for an all day session. A Deputy County Attorney presents evidence to the
Grand Jurors through the testimony of witnesses (reliable hearsay is allowed); usually
only the investigating police officer testifies, although sometimes a physician or other
expert may be subpoenaed to testify about a complicated subject matter. The Grand Jury may
request the prosecutor to present further evidence or witnesses, and jurors may question
each witness who testifies. A defendant may request to address the Grand Jury, but the
Grand Jury may refuse to hear from the defendant. After the presentation of evidence, the
Grand Jury deliberates in secret; at least nine members must agree that probable cause
exists to believe a crime has been committed and the defendant committed it. If the Jury
finds probable cause exists, it instructs the prosecutor to prepare an indictment listing
the charges the Grand Jury feels are appropriate.
The Grand Jury may also decide if a summons or warrant should be he issued.
Grand Jury proceedings are brief, as no cross-examination takes place. This proceeding,
since it is secret, allows the State to charge a person with a crime without the person's
knowledge prior to the indictment being issued. It is a crime to divulge the happenings
and decisions of a Grand Jury.
While Grand Jury proceedings are useful, there are drawbacks. If a victim or witness
testifies at the Preliminary Hearing, that testimony may be used at trial if the victim or
witness is unavailable. Yet, if the victim or witness' statement is testified to by the
police officer in the Grand Jury, no sworn testimony will exist to use at trial if the
victim or witness becomes unavailable.
10. Arraignment
This is a brief hearing held in front of a court commissioner at which the Indictment
or Information is read to the defendant and he or she pleads guilty or not guilty. If the
plea is not guilty, the case is assigned to a Judge and a trial date is set. Conditions of
release, including bond, may be reviewed at this time. If the defendant pleads guilty, a
sentencing date is set. Victims and witnesses do not need to be present for an
arraignment.
11. Trial
If you are a witness at a trial, you will probably be subpoenaed several weeks in
advance of trial, but criminal trials usually do not take place on the first trial
setting, due to ongoing discovery, plea negotiations and date conflicts of the attorneys
and judge. If a trial is continued, it is usually for a thirty day period. Always call the
number on the subpoena the day before you are to appear or you may appear in court
unnecessarily.
All defendants have a constitutional right to a trial, which can be before a jury or
judge. Juries are made up of either eight or twelve people as well as one or more
alternates, who are selected out by lot immediately prior to deliberations. Alternates are
used if a juror is unable to complete the trial. A defendant may waive a jury trial and
have his case tried by a judge.
All defendants also have a constitutional right to confront their accuser; therefore,
all witnesses who are available may be subpoenaed to court to testify. The subpoena may
come from either the State or the defendant. If you are subpoenaed, you must appear in
court. If you fail to appear, a warrant may be issued for your arrest, and you may be held
in contempt by the court.
The defendant has a right to be present throughout the trial.
Although the law allows the testimony of a child victim to be taken via closed circuit
television or videotape, there are certain requirements which must be met; these make this
option unlikely in most cases. The prosecutor must make this decision based on the
individual case.
A jury trial proceeds as follows:
The jury commissioner will send a panel of potential jurors to the courtroom. Potential
jurors are questioned by the court about their employment, prior jury experience,
knowledge of the case, possible conflicts, or other relevant issues. This is known as voir
dire. The attorneys may submit to the judge specific questions they want asked which go to
the jurors' appropriateness to hear this particular type of case (e.g., to determine if a
juror has been a victim of sexual abuse or knows someone who has been accused): the judge
decides which questions are appropriate to ask the jury panel. When voir dire is finished,
the panel is excused for a period of time while the attorneys exercise their
"strikes" of the jury panel, cutting down the number to eight or twelve plus the
alternates. This final group will hear the trial.
Sometime prior to trial (either before jury selection or after jury selection but prior
to opening statements), the judge will hear various pretrial motions. Pretrial motions,
which may be filed by either party, address such issues as the admissibility of evidence
and the voluntariness of the defendant's statement (the judge must find that the
defendant's statement to law enforcement was voluntary in order for it to be admissible).
After the motions are heard, both attorneys may give an opening statement, which is an
outline of what they believe the evidence will be. The State then presents its case
through the testimony of witnesses (direct examination) and the admission of physical
evidence. After each witness has been questioned by the prosecutor, the defense attorney
may question the witness(cross-examination).
After the cross-examination, the prosecutor may again question the witness (redirect
examination).
When the State has questioned all its witnesses and admitted all its evidence, the
State rests. The defense may then present a case, proceeding in the same manner as
described above, except the direct examination is done by the defense attorney and the
cross examination by the prosecutor. If the defense does put on witnesses, the State may
call rebuttal witnesses after the defense has rested its case.
After all testimony has been received, the State presents its closing argument, followed
by the defense closing argument. Because the State carries the burden of proving the case
beyond a reasonable doubt, the prosecutor gets a final rebuttal argument in front of the
jury. After the closing arguments, the judge will read the jury instructions (law the jury
must follow in deciding the case) which have been agreed upon out of the presence of the
jury. The alternates are then chosen and excused, and the jury retires to deliberate in
private until a verdict has been reached.
The jury may find the defendant guilty, not guilty or be unable to come to a verdict;
verdicts of guilty or not guilty must be unanimous. Each count must be decided
independently, so a defendant may be found guilty of some counts, not guilty of others and
still others may result in a hung jury because the jury was unable to come to a unanimous
verdict. If the defendant is found guilty, the judge sets a date for sentencing. If he or
she is found not guilty, the charges are dismissed and the defendant is released from
custody or conditions of release. If there is a hung jury, the judge will set a date to
retry the case in approximately sixty days.
12. Probation presentence report
A defendant who pleads guilty or is convicted at trial of a felony offense usually has
a presentence report prepared by the probation department. The presentence probation
officer does a background study of the defendant and contacts interested parties,
including the victim, in order to make a recommendation to the court concerning the
sentence. The report is in writing and is submitted to the judge prior to sentencing. This
allows a victim or other interested parties to let the court know of their wishes
regarding sentencing.
13. Sentencing
After a defendant has been convicted of a crime, the judge will impose a sentence on
him or her. Arizona law sets guidelines (minimum and maximum prison sentences, eligibility
for probation) which the judge uses in determining an appropriate sentence. The judge
takes mitigating and aggravating circumstances into consideration in determining the
sentence. Depending on the crime, a defendant may have his or her sentence suspended and
be placed on probation; probation does allow the imposition of jail time (up to one year)
as a term and condition of probation. Other terms and conditions, including limiting
access to the victim, participating in therapy or drug treatment, may also be imposed. If
the defendant violates any of the imposed conditions, the court may find, after a hearing,
that the defendant has violated his probation and revoke it, in which case the defendant
is sentenced to prison. Restitution and/or fines also may be imposed as a term of
probation.
The defendant may also be sentenced to prison, in which case he or she is sent to the
Department of Corrections.
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*NOTE: Every jurisdiction handles criminal cases in somewhat different
ways: for example, the prosecutor may be known as a county or district attorney, a Grand
Jury may or may not be used, the child may have to testify at a preliminary hearing. The
following is an explanation of the Maricopa County, Arizona system as of 1994 and should
be generally accurate, although minor variations may exist between courts and police
jurisdictions. CASA's are encouraged to learn how the system in their jurisdiction
functions to assist them in working effectively with criminal justice agencies. BACK
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SAMPLE CRIMINAL /CIVIL CHILD ABUSE DEFINITIONS
Arizona Revised Statutes 13-3623 (Criminal Code)
"Abuse" when used in reference to a child, means abuse as
defined in ARS 8-546, subsection A, except for those acts in the definition which are
declared unlawful by another statute of this title...
"Physical Injury" means the impairment of physical condition
and includes but shall not be limited to any skin bruising, pressure sores, bleeding,
failure to thrive, malnutrition/dehydration, burns, fracture of any bone, subdural
hematoma, soft tissue swelling, injury to any internal organ or any physical condition
which imperils health or welfare.
"Serious physical injury" means physical injury which creates a
reasonable risk of death, or which causes serious or permanent disfigurement, or serious
impairment of the function of any bodily organ or limb.
Crime of child abuse:
Under circumstances likely to produce death or serious physical injury, (or under
circumstances other than those likely to produce death or serious physical injury) any
person who causes a child to suffer physical injury, or, having the care or custody of
such child, causes or permits such child to be placed in a situation where its person or
health is endangered is guilty of an offense...
Note: Sexual Offenses are defined independently of child (physical) abuse in most
jurisdictions.
Arizona Revised Statutes 8-4546 (Child Welfare Code)
"Abuse" means the infliction of physical injury, impairment of
bodily function or disfigurement or the infliction of serious emotional damage as
evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and
which emotional damage is diagnosed by a medical doctor or psychologist ... and shall
include inflicting or allowing sexual abuse.... sexual conduct with a minor...sexual
assault...molestation of a child...commercial sexual exploitation of a minor, sexual
exploitation of a minor... or incest.
NOTE: The child welfare code also covers abandonment and neglect in other definitions.
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