Criminal Defense FAQ
Scott Kimberly has practiced criminal defense for years. Below is a list of some of the more frequently asked questions Scott encounters.
What is a preliminary hearing?
A preliminary hearing is a hearing that occurs in General Sessions Court. At this hearing, the accused does not testify. The government has the burden of proof. The government must establish three things: (1) probable cause that a crime was committed; (2) that the accused probably committed the crime; and (3) that the crime occurred in the county in where the case is being heard.
In the event that there is a chance your case could be a jury trial, it is imperative to engage in a preliminary hearing because the hearing is recorded by the Court. The government’s witnesses are under oath and must testify as to the charges against the accused. Many times, this is the only opportunity that an accused has to “lock” the witnesses into a particular set of facts. An experienced criminal defense attorney is critical at this stage.
What does bound over to the grand jury mean?
Being bound over to the grand jury is accomplished in one of two ways. First, if an accused decides to engage in the above referenced preliminary hearing and the judge finds probable cause, then the General Sessions judge will bind the case over to the grand jury (this just means that the judge found probable cause). Second, an accused can waive his/her right to a preliminary hearing and thus bind his/her case to the grand jury.
What is the grand jury?
The grand jury is where twelve (12) people meet and listen to the government’s version of facts against an accused. At this hearing, neither the accused nor his/her attorney appears in court. The government lays out some portion of their case against an accused and then the grand jurors vote to determine whether there is probable cause. If the grand jury finds probable cause, an indictment, or true bill, will follow.
What happens after a grand jury has returned an indictment?
At this point, an accused has made his formal entry into Circuit Court. There will then be an Arraignment date scheduled.
What are a discussion day and a plea day?
A Discussion day is when the government must make a written offer in an attempt to settle your case. A Plea day is when you enter a plea guilty before the trial court, or your case will be set for trial.
What is a jury trial and what is the burden of proof?
A jury trial is where twelve (12) of one’s peers listen to the proof that is presented by both the government and the accused. At the conclusion of the proof, in order for a jury to return a verdict, the decision must be unanimous. Meaning, all twelve (12) must agree on the verdict. In the event only one (1) does not agree, then that would be a hung jury. As to the burden of proof, the government must show that the accused committed a crime, beyond a reasonable doubt.
What does beyond a reasonable doubt mean?
The legal definition for beyond a reasonable doubt is as follows: reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense. Tennessee Pattern Jury Instruction 2.03.
What is the distinction between a felony and a misdemeanor?
A felony is a criminal offense punishable by one (1) year or more. Felonies range from Class A to Class E, with Class A being the most severe. A misdemeanor is defined as a criminal offense being punishable by eleven (11) months and twenty-nine (29) days or less. Misdemeanors range from a Class A to a Class C.
How does the Constitution and an accused not testifying work together?
A criminal jury trial is distinctively different from any other kind of case. The reason is that the burden of proof is on the government. The government must prove beyond a reasonable doubt each and every element of the alleged crime. An accused need not prove anything. This is according to the Constitution. If the government has not presented evidence sufficient for a jury to be able to conclude beyond a reasonable doubt that an accused has committed a particular crime, then there would be no reason for a criminal defense attorney to put one’s client on the stand.