Victims’ Rights and Criminal Procedure

This pamphlet is provided to you by the Vermillion County Prosecutors Office. The criminal justice system is very often confusing and frustrating for the victims of a crime. The Information in this pamphlet is to inform you of your rights; to educate you as to the process which occurs when a person is charged with a crime; to answer some frequently asked questions about the criminal justice experience; and to provide you sources of additional information.

 

_{This brochure was paid for by Grant Funds awarded by the Indiana Criminal Justice Institute and made possible by Award No. 2003-VA-GX-0029 awarded by the Office of Justice Programs}

Victims‘ Rights Pursuant to Indiana Code 35-40-5-1 1.    A victim has the right to be treated with fairness dignity, and respect throughout the criminal justice process. 2.    A victim has the right to be informed, upon request, when a person who is accused of committing or convicted of committing a crime perpetrated directly against the victim, is released from custody or has escaped. This includes release or escape from mental health facilities. 3.    A victim has the right to have the victim’s safety considered in determining the release from custody of a person accused of committing a crime against the victim. 4.    A victim has the right to information, upon request, about the disposition of the criminal case involving the victim or the conviction, sentence, and release of a person accused of committing a crime against the victim. 5.    A victim has the right to be heard at any proceeding involving sentence or post-conviction release decision. A victim’s right to be heard may be exercised, at the victim’s discretion, through an oral or written statement, or submission of a statement through audio tape or videotape. 6.    A victim has the right to make a written or oral statement for use in preparation of the Pre­-sentence Report. The victim also has the right to read pre-sentence reports relating to the crime committed against the victim in order that the victim may respond to the Pre-sentence Report. 7.    A victim has the right to pursue an order of restitution and other civil remedies against the person convicted of a crime against the victim. 8.    A victim has the right to be informed of the victim’s constitutional and statutory rights. 9.    A victim has the right to confer with a representative of the prosecuting attorney’s office after a crime allegedly committed against the victim has been charged; before the trial of a crime allegedly committed against the victim; and before any disposition of a criminal case involving the victim. This right applies in the following situations: (1.) The alleged felony was directly committed against the victim; (2.) The alleged felony or misdemeanor was an offense against the person which includes the crimes of Battery, Domestic Battery, Aggravated Battery, Battery by Bodily Waste, Criminal Recklessness, Intimidation, Harassment, Invasion of Privacy, or Pointing a Firearm, and the alleged felony or misdemeanor was committed against the victim by a person who is or was a spouse of the victim; is or was living as if a spouse of the victim; or has a child in common with the victim. For other misdemeanors, a victim must file a request for notice which includes a current telephone number and address. These rights do not include the authority to direct the prosecution of a criminal case involving the victim.

OVERVIEW OF INDIANA CRIMINAL PROCEDURE FOR THE NON-LAWYER Information/Indictment All prosecutions in Indiana begin by the Prosecuting Attorney filing an Information or Grand Jury Indictment with the court. The vast majority of cases are filed by Information. The Information “informs” the Defendant of the crimes it is alleged that he/she committed. The Prosecuting Attorney serves as the lawyer representing the State of Indiana. Along with the Information, the Prosecuting Attorney files a Probable Cause Affidavit with the court. In order for the defendant to be held on the charges, the Judge must find that there is “probable cause” to believe that the defendant committed the specific crimes charge. If so, the Judge may issue an Arrest Warrant. If the defendant has already been arrested before the Information is filed, the Judge must make a finding of “probable cause” in order for the defendant to be held in jail to await trial or the posting of bail. Initial Hearing An Initial Hearing, called an arraignment in other states, is the defendant’s first appearance in court. Following his arrest, the defendant must be taken “promptly” before a Judge for an Initial Nearing. This usually means within 48 hours of arrest. If the defendant has posted bail, an Initial Hearing is set usually within 7 days. At the Initial Hearing, the defendant is given a copy of the charging Information, advised of his rights, and appointed a Public Defender if he is indigent. A Public Defender is a lawyer, paid by the court, who represents the defendant in the case. In addition, the court also sets a Pretrial Conference date. Bail Bail allows a person in jail awaiting trial to be released, and to remain free until his case comes to trial. Only a Judge has the power to set bail. The amount of bail usually reflects the seriousness of the crime. If evidence is presented that the defendant poses a risk to another person or to the community, bail maybe set in a higher amount. A defendant has the right to have bail in all cases, unless he is charged with Murder. A Judge may release the defendant on his own Recognizance; that is, merely upon his promise to reappear without posting any bail. Ordinarily, a defendant is released on recognizance only in minor misdemeanor cases. A Judge may also attach reasonable restrictions and conditions to the defendant’s release. For example, the Judge may enter a NO CONTACT order, forbidding the defendant from having any contact whatsoever with another person, usually the victim of the crime. A violation of any of these restrictions or conditions may result in revocation of bail, causing the defendant to be held in jail until trial. Pretrial Conference A pretrial conference is a meeting between the attorneys for each side before trial to discuss pretrial motions and to determine whether the case can be settled with a plea agreement. The pretrial conference date is set at the Initial Hearing. If the State and the Defendant are unable to reach a Plea Agreement, then the case will he set for either a Bench Trial or a Jury Trial. Plea Agreements A plea agreement is an agreement between the State of Indiana (Prosecuting Attorney) and the defendant, requiring the defendant to enter a guilty plea to the charged crime or to a lesser included crime, in exchange for a specific sentence and/or the dismissal of other counts by the state. If a plea agreement is entered, there is no trial. Ninety-nine (99%) of all criminal cases are concluded with a plea agreement. When a plea agreement is reached between the State and the defendant, it must be in writing and filed with the court. The judge then makes the final decision on whether to accept or reject the plea agreement. If accepted. The judge must sentence the defendant in accordance with the terms of the agreement. The judge may not accept the guilty plea, then sentence the defendant to a different term than provided in agreement. If rejected by the judge, the case is set for trial. Defendant’s Rights At any trial, the defendant has the right to be represented by competent counsel, provided at no expense to him if he is indigent, with the power to compel the production of witnesses and evidence, and to present and cross examine witnesses. At any trial, the defendant cannot he compelled to be a witness. At any trial, the defendant is presumed innocent, and the burden is on the State of Indiana (prosecuting attorney) to prove his guilt of the charged crimes, “beyond a reasonable doubt”. Bench Trial & Jury Trial A defendant has the right to a trial by jury in Indiana when charged with any crime. However, if the defendant, the prosecutor, and the judge agree, a jury trial may he waived and a bench trial held. A bench trial is a trial to the judge without a jury. The same rights apply, but it is the judge who decides the guilt or innocence of the defendant. A jury consists of 12 persons when the defendant is charged with Murder or a Class A, B, or C Felony. In other lesser cases, the jury consists of 6 persons. In either ease, the defendant is presumed innocent, and the burden is on the State of Indiana to prove his guilt of the charged crimes “beyond a reasonable doubt.’’ All verdicts must be unanimous. Sentencing If a plea agreement is reached, the case is set for sentencing and if the plea agreement is accepted, then the defendant is sentenced in accordance with its terms. If the defendant is found guilty a trial, the case is set for sentencing, usually within 20-30 days following the verdict. This time allows the court’s probation department to prepare a presentence investigation report, which includes information regarding the background and history of the defendant, as well as a statement of the impact of the crime upon the victim. The judge then uses this information, along with the evidence presented at trial, to fix an appropriate sentence within the limits imposed by statute. In Indiana, the defendant is sentenced to a fixed determinate term of imprisonment. As long as the defendant does not violate any rules of the Indiana Department of Corrections, the defendant is released on parole after serving 1/2  of his sentence. In addition to incarceration, the judge has many other sentencing options available. The judge may suspend the sentence and place the defendant on Probation with conditions; the defendant maybe placed under ”house arrest” or required to wear a monitor as part of the home incarceration program; the defendant may be required to complete a counseling program, or to perform community service, or required to pay a fine or restitution to the victim. These sentencing options may be combined.