Criminal Defense Training
For Pro Bono Attorneys
John Benson, Director of Criminal Defense
Marissa Claxon, Staff Attorney
Shannon Murphy, Attorney Fellow
ARREST & DETENTION
• Most criminal cases are initiated by arrest
– Some misdemeanor cases may be initiated by
summons (letter in mail)
• After arrest, detained at police station
– Investigation: crime and person
• If charged:
– Misdemeanor cases: often receives bond at police
station
– Felony cases: transferred to Central Bond Court
Criminal Defense Training
BOND
• Central Bond Court: 773-869-5849
– 2650 S. California Ave, Room 100
– 11:45 am (11:00 am on weekends)
• 725 ILCS 5/110-5: Determining the amount of
bail and conditions of release
TIP: Pre-trial Services report
Criminal Defense Training
BOND
• 725 ILCS 5/110-6: Bond increases and
denial of bail
– (a) verified
– (a) new facts
– (c) reasonable notice
TIP: courtroom idiosyncrasies
Criminal Defense Training
FORMAL CHARGING
•
725 ILCS 5/111-1: Method of prosecution
1. Complaint
2. Information
3. Indictment
Criminal Defense Training
FORMAL CHARGING
• 725 ILCS 5/109-3.1: Timeframe
– 30 days from custody
– 60 days from arrest (on bond)
TIP: Not practically enforceable
Criminal Defense Training
FORMAL CHARGING
•
725 ILCS 5/111-3: Form of Charge
1. Examine charging document
2. Read statutes
Criminal Defense Training
FORMAL CHARGING
•
725 ILCS 5/111-5: Formal Defects
1. Examine charging document
2. Read statutes
TIP: Complaint law is highly specific. It is
based on notice and jeopardy.
Criminal Defense Training
PRELIMINARY HEARING
•
725 ILCS 5/109-3: preliminary examination
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(a) probable cause
(b) hearing
(c) witnesses called
(d) motion to suppress*
TIPS:
1. Ask open-ended questions
2. Ask foundational questions
3. File written trial demand
Criminal Defense Training
PRELIMINARY HEARING
• Must order and pay for transcript
– 26th Street: 773.674.6065
– Branch Courts: 312.603.8404
• 725 ILCS 5/111-2(a): Waiver
– Diversion Programs
– Plea
Criminal Defense Training
PRELIMINARY HEARING
• 725 ILCS 5/112-4 (b)
• WARNING: after a finding of no probable
cause, prosecutors may seek to indict
TIP: Consider early plea negotiation
Criminal Defense Training
GRAND JURY
• 725 ILCS 5/112-6: Secrecy of proceedings
• 725 ILCS 5/112-7: Transcript
Criminal Defense Training
FINDING OF PROBABLE CAUSE
• 21 days after a finding of probable cause,
the case continued for assignment
- Chief Judge’s courtroom
- 2650 S. California Ave, Room 101
TIP: No wiggle room
Criminal Defense Training
INDICTMENT
• Generally, defense learns of indictment in
preliminary hearing courtroom
• Case continued for assignment
TIP: wiggle room
Criminal Defense Training
ASSIGNMENT
• Chief Judge – Room 101
• Call beings at 9:00 am sharp
• Case immediately assigned to courtroom
in building OR given date for assignment
in Bridgeview or Skokie
TIP: Can call clerk day before to determine
where case is assigned (773-869-3157)
Criminal Defense Training
ARRAIGNMENT
• 725 ILCS 5/113-1: Procedure at
arraignment
– File Appearance and Motion for Discovery
• Arraignment “magic words”:
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Seek leave to file appearance
Waive formal reading
Enter a plea of not guilty
Request a by agreement status date
Criminal Defense Training
DISCOVERY
• Supreme Court Rules 411 – 415
• Initiation (Rule 411): starts at arraignment
• Felony: tendered at court
• Misdemeanor: sent in mail (business card)
Criminal Defense Training
DISCOVERY
• Non-exhaustive list of basic discovery from state:
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Incident Report
General Offense Report
Arrest Report
Supplemental Report
Detective Supplemental Report
General Progress Report
Detective Close-Out Report
Rule 412: Disclosure to the accused – State must provide defense
with written answer (Read entire rule)
Criminal Defense Training
DISCOVERY
• Important rules for obtaining additional
discovery:
– Rule 412(f) flow of information and (g) other
governmental personnel: Burden on state
– Rule 412(h): Discretionary disclosure: Judge
can order (catch-all)
Criminal Defense Training
DISCOVERY
• Defense must file a written answer (Felony)
• Rule 413: Disclosure to prosecution
– Answer Must Include:
• Affirmative defenses – insanity, self-defense, intoxication
(voluntary or involuntary)
• Alibi – place
• Witnesses and written statements of witnesses
• Known Convictions of witnesses
• Physical Evidence and Scientific Reports
Criminal Defense Training
DISCOVERY
• Rule 415: Regulation of Discovery
– (a) Investigations Not to be Impeded
– (b) Continuing Duty to Disclose:
If new information is learned, must notify
Criminal Defense Training
SUBPOENAS
• Returnable to court on next court date
• No fees
• Compulsory process – 6th Amendment
Criminal Defense Training
SUBPOENAS
• POLICE:
– 3510 S. Michigan Avenue, 60653
– Records: Keeper of Records
– Appearance: Police Officer (star number)
• 72 hours notice for appearance
– Delivery rules change, call subpoena unit
• CPD subpoena unit 312-745-5603
Criminal Defense Training
SUBPOENAS
• EVIDENCE TECHNICIAN PHOTOS:
– E.T. referenced in police reports
– Subpoena: Keeper of Records, Graphic Arts
Department, 3510 S. Michigan Ave 60653
TIP: subpoena on your own
Criminal Defense Training
SUPBOENAS
• 911 CALLS AND EVENT QUERIES:
- 911 call: court order to preserve within 30
days of call, followed by subpoena
- Event query: subpoena sufficient, no time limit
- Keeper of Records, Office of Emergency
Management and Communications, 1411 W.
Madison, 60607
• OEMC subpoena unit 312-743-1829
TIP: Slow to respond
Criminal Defense Training
SUBPOENAS
• HOSPITAL:
– Call to determine method
– Need to attach HIPAA release from client or
court order
TIP: write “photocopies will suffice in lieu
of personal appearance”
Criminal Defense Training
SUBPOENAS
• AMBULANCE OR PARAMEDIC
REPORT:
– Referenced in police reports
– Keeper of Records, Chicago Fire Department,
10 W. 35th St. Room 1350, 60616
– Need release (CFD form preferable)
TIP: Watch for if client taken to hospital
Criminal Defense Training
CONTINUANCES
• 725 ILCS 5/114-4(a): “The defendant or
the State may move for a continuance. If
the motion is made more than 30 days
after arraignment the court shall require
that it be in writing and supported by
affidavit.”
TIP: Be aware of the statute
Criminal Defense Training
CONTINUANCES
• Generally speaking made orally (not in writing)
– Types:
• By agreement
• Motion state (Defendant may or may not demand trial)
• Motion defendant
• Order of Court
• File written Motion for Continuance if case is set for trial
and need to take off trial call
– Motion should include reasons for continuance
– May want to advance case to re-set for trial
Criminal Defense Training
DEMAND FOR TRIAL
• 725 ILCS 5/103-5: Speedy Trial
– File written trial demand
– 120 days if in custody
– 160 days if out of custody
TIP: By agreement dates toll the statute
Criminal Defense Training
PRE-TRIAL MOTIONS
• Substitution of Judge: 725 ILCS 5/114-5
– File written motion, must allege prejudice
– Must file within 10 days of being placed on
the judge’s trial call
– Name one judge as of right
– If charged with Class X felony, name two
– If multiple defendants, each defendant can
name one judge as of right
Criminal Defense Training
PRE-TRIAL MOTIONS
• Motion to Suppress Confession: 725
ILCS 5/114-11
• Motion to Suppress Evidence Illegally
Seized: 725 ILCS 5/114-12
Criminal Defense Training
PLEA NEGOTIATIONS
• Prosecutors are authorized to bring,
reduce and dismiss charges
– Defense attorney has an ethical obligation to
tender all offers to client
• Drug cases: offer typically at arraignment
• Other cases: Prosecutor usually has to
contact complaining witness first
Criminal Defense Training
RULE 402 CONFERENCE
• Supreme Court Rule 402: the judge can join in
the plea negotiations upon agreement of the
parties
– Client must consent and cannot request a new judge
after a conference
– Conference may be held at bench or in chambers
– Prosecutor will disclose information regarding the
allegations and client’s criminal history
– Defense attorney should be prepared to present
evidence in mitigation
– Judge will determine sentence upon plea
Criminal Defense Training
PLEA
• Read Supreme Court Rule 402
• Admonish client of rights and consequences:
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Right to plead guilty or not guilty
Right to trial (jury or bench)
Right to testify or remain silent
Right to call and cross-examine witnesses
Sentencing range
Immigration consequences (Padilla v. Kentucky)
Other possible consequences (?)
Criminal Defense Training
PLEA
• Written Waivers: Client must sign waivers
when pleading guilty
– Waive Jury Trial (Felony & Misdemeanor)
– Waive Pre-Sentence Investigation (Felony
Only) 725 ILCS 5/5-3-1
TIP: Generally located on bench, ask clerk
Criminal Defense Training
TRIAL
• File written answer to discovery (Felony)
– Usually filed on court date when trial date is
scheduled
• Subpoena defense witnesses
Criminal Defense Training
TRIAL
• Client has three fundamental rights:
– To plead Guilty or Not Guilty
– To have a Bench Trial or Jury Trial
• For bench, must waive right to jury trial in writing
– To Testify or Remain Silent
• Defense attorney may advise client but
client must make ultimate decision
Criminal Defense Training
SENTENCING
• Pre-Sentence Investigation 725 ILCS 5/5-3-1
• Sentencing hearing 725 ILCS 5/5-4-1
• Factors in aggravation/mitigation 730 ILCS 5/55-3.1
• See handout
• See Illinois Sentencing and Disposition Guide
by Gino L. DiVito
Criminal Defense Training
DISPOSITIONS
•
Dismissals
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SOL (stricken off with leave to reinstate)
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Prosecutor may seek to reinstate case within 160 days
Client will get letter in mail with new court date
Nolle Prosequi: case cannot be reinstated
Diversion Programs: dismissal upon completion
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•
Theft school – first time misdemeanor retail theft; requires
attending class on a Saturday morning and paying a fee
Drug school – for class 4 or lower with no prior drug
offenses; requires attending classes and paying a fee
Prosecutor has paperwork; judge must sign
Criminal Defense Training
DISPOSITIONS
• Supervision: if client completes successfully,
not a conviction (most misdemeanors eligible)
• Convictions:
– Probation
– Conditional Discharge
– Incarceration
• Note: prosecutor may request additional
conditions, such as SWAP or community service
Criminal Defense Training
POST-TRIAL MOTIONS
• Motion for New Trial: 725 ILCS 5/116-1
– Must file written motion
• Only issues raised are preserved on appeal
– Must file within 30 days
• Motion to Reconsider Sentence
– Must file written motion
Criminal Defense Training
NOTICE OF APPEAL
• Must file within 30 days
• File in clerk’s office or in trial courtroom
– Form is in clerk’s office
• Court can appoint Office of the State Appellate
Defender
• WARNING: As soon as you file a Notice of Appeal, you
divest the trial court of jurisdiction; therefore, you cannot
file a Notice of Appeal and then other post-trial motions
Criminal Defense Training