1. How does the Government initiate charges against me?
You may be investigated for a criminal offense and receive a written citation from the officer who has investigated you. Or, you may be released without a citation, and later receive a summons to appear in the mail for a hearing, which can take place months or years later. For misdemeanor charges, the city/state has one or two years to file charges against you, depending on the severity of the charge. For a felony matter, the state of Washington has even more time to file charges against you, depending on the severity of the charge. This period of time between the alleged crime and the “deadline” to file charges against you is known as the “statute of limitations.” If you are held in custody in Washington, the State has 72 hours to either release you or file charges against you. If charges are not filed against you and you are released, it does not mean the case is over. You may receive a summons to come to court after the government has completed investigation and has decided how to proceed.
2. If charges aren't filed against me for months, doesn't that violate my right to a speedy trial?
Unfortunately, in Washington, the speedy trial rights you possess don't apply until you appear for the “arraignment” in your case. Once that happens, you “technically” have the right to a trial within 90 days if you are out of custody; or 60 days if you are in custody (or if you are in juvenile court). I say “technically” because there are many exceptions and extensions to speedy trial, and it's not as clear cut has it has been in the past.
If there is a very large and unreasonable delay in filing your charge, we can sometimes create an issue even if it is filed within the statute of limitations. But this would require actual proof that you have suffered “prejudice” from the delay in filing your case. This is hard to prove, but it's worth discussing with your lawyer if you think it may apply.
3. Should I talk to a lawyer before charges are filed against me?
It is important to consult an attorney as soon as possible after you are aware that you are being investigated or charged with a crime. Some important work can be done prior to the filing of charges against you. And if charges are filed, some legal objections and challenges must be raised by an attorney at the first appearance or they are “waived” and you can no longer raise these issues at a later time. Having an attorney at every stage of the proceedings means that all your rights are protected.
Also, it's important to have an attorney begin the process of investigation – witnesses' memories fade, and information helpful to your defense may become harder to obtain as time goes on. An attorney can also advise you about taking remedial action quickly, in order to show the Judge and Prosecutor how seriously you take the allegations. For example, I have recommended to clients prior to the filing of their charges that they obtain (confidential) chemical dependency evaluations, install an ignition interlock device on their vehicle, enter counseling, begin community service, or one of many other options that may be helpful to their particular cases.
4. What if I don't like the judge on my case?
In Washington criminal matters, you have the right to object to one judge on your case by filing what's called an “affidavit of prejudice.” You do not need to demonstrate that there was actually a reason to conclude that they would be prejudiced against you specifically. In fact, most affidavits of prejudice are filed for legal and tactical reasons by an attorney. You should consult with an attorney before making a single court appearance in your case, because if you appear before a judge for one hearing and you do not object to the judge hearing your case, you most likely have waived your ability to object to that judge later.
Beyond that one affidavit, you cannot object to any other judges in your case unless you can demonstrate “actual” prejudice. For example, if the judge knows you personally and has a personal grudge against you and you can show this, the judge should recuse him or herself from hearing your case. This demonstration of “actual” prejudice is necessary to remove another judge from hearing your case. Otherwise, you may be stuck with whoever is assigned to hear your matter.
5. What if I don't like the prosecutor on my case?
Sorry, unless you can demonstrate some actual conflict of interest in the prosecutor handling your case, there's not really a chance of having a prosecutor removed from handling your case.
6. What kind of process can I expect once the case is filed?
For a misdemeanor offense in Washington, you will face charges in either district (state) or municipal (city) court. The first hearing you can expect is the arraignment. At that time, a formal “complaint” is filed against you (a document that lists the specific charge(s) against you, and you will usually (on the advice of an attorney) enter a plea of “not guilty.” This does not preclude you from changing your plea at a later time, and it preserves all your rights. If asked, you should not waive your right to a jury or speedy trial at this time. The judge also has the authority to set some “conditions” on your behavior while the case is pending. The judge can order bail/bond, if there is a fear for public safety or some reason to consider you a flight risk. At arraignment, the “speedy clock” starts ticking.
From that hearing, your matter is typically set for some type of pretrial hearing. In Superior Court, it is often called “case setting” – in district court, it can be called a “pretrial conference.” Some courts forego a pretrial hearing and set the matter directly for a “trial call” calendar, which is the step before trial, when your case is confirmed for a trial.
In a felony matter, your case can be initiated in a number of ways. Depending on the nature of the charge and the county in Washington in which your case is charged, you could be required to appear for a bail setting hearing, where the judge determines if there is probable cause to restrict your freedom by imposing conditions of release. Conditions of release may include bail or bond, requirements to remain in the State of Washington, restrictions upon your use of alcohol or drugs, or orders to refrain from contacting victims or witnesses involved in the case. If charges are not filed at this first hearing, the State typically has 72 hours in which they must either charge you with a criminal offense, or you must be released. If you are released, they may file the offense months or years later, after investigation is complete. The time frame for filing is known as the “statute of limitations.”
You have a constitutionally protected right to a jury trial for a criminal offense (unless you are a respondent in juvenile court). The prosecutor also has a right to demand a jury trial, even if you wish the trial to be held before a judge. It's best to consult with an attorney about the best strategy in your particular case regarding the type of trial to request.
Most cases do not proceed to a full trial. Over 90% of cases in Washington settle with some sort of resolution (either a plea, deferred prosecution, diversion, etc.). However, it is in your best interest to hire an attorney who is prepared to proceed to trial if that is in your best interest.