WHY IS MY CRIMINAL CASE TAKING SO LONG?

WHY IS MY CRIMINAL CASE TAKING SO LONG?

Lauren E. Ruff, J.D.

You’ve been arrested for a crime. You likely had a bond that you had to pay, and maybe even had a hearing with a judge very briefly. Now what happens? How long will it take?

I. BASIC OUTLINE OF A CRIMINAL CASE

In order to understand what is coming in the future of your criminal defense case, and the time it takes to resolve your case, you need to understand the procedure of a case. This article focuses on felonies, as they are the longest cases, though the procedure is very similar for misdemeanors.

Not all arrests require an arrest warrant and not all arrest warrants include a bond amount. Although a bond amount can already be set, prior to your arrest, it often is not set until after you are arrested. Defendants are entitled to a prompt hearing after arrest. Ark. R. Crim. Proc., R. 8.1 (2022). This is often called a “Rule 8.1 Hearing.” This rule specifically states, “An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” Id. This means that within one to three days of your arrest, absent an emergency or a judicially observed holiday, you will see a judge.

At this time, or any time after, a Defendant can apply for a public defender to represent them. Ark. R. Crim. Proc., R. 8.2 (2022). Certain conditions apply for the appointment of a public defender.

The Rule 8.1 Hearing is the usually the first appearance of the Defendant. At this hearing a judicial officer will do the following: (1) notify the Defendant of the nature of the charges against them or, if charge are actually filed, then of the actual charges filed, (2) inform the Defendant of their right to have counsel, (3) inform the Defendant that they are not required to say anything and that anything they say can be used against them, and (4) and inform the Defendant that they have a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so. Ark. R. Crim. Proc., R. 8.3 (2022).

The pretrial release of the Defendant can be considered at this hearing. Id. Also, the Court will, if they are not able to dismiss the case, make a determination by an informal and non-adversarial hearing if there is probable cause to detain the Defendant pending further hearing. Id.

The Defendant, if charges are not immediately dismissed at the 8.1 Hearing, will be set for an Arraignment. Arraignment is held after formal charges are filed. For this reason, a Defendant may have to appear repeatedly in front of the Court awaiting charges to be filed. In Arkansas, there is a time limit for filing charges that is only assessed for Defendants who remain in jail. Ark. R. Crim. Proc., R. 8.6 (2022). This time limit does not guarantee that charges must be dropped but instead allows the Defendant to petition to be released pending the filing of charges. Id. The filing of formal charges is typically called an “Information” or an “Indictment.”

At the Defendant’s Arraignment, a Defendant will enter an initial plea. This is what many see on television, where a Defendant stands and tells the judge they are “Not Guilty”. At the Arraignment, the Defendant may waive a formal reading of the charges, but should at least acknowledge that they know what they are charged with, the minimum and maximum penalties for each offense, and their constitutional rights. Occasionally, some Defendants do plead guilty or nolo contendere (no-contest) at an Arraignment, and in order for the Court to accept a guilty or nolo contendere plea, the Court must ensure that the Defendant knows of their right to counsel, the charges against them, the minimum and maximum penalties, their constitutional rights, be aware of immigration consequences if they are not a citizen, and that they are waiving certain constitutional rights. See Ark. R. Civ. Proc., R. 24.2 and Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473 (2010). The Court must also determine that the plea is made voluntarily, without coercion, threat, or duress. Ark. R. Crim. Proc., R. 24.5

Once the Arraignment is completed, the case moves into Discovery. Typically, the Defendant’s attorney will file a “Motion for Discovery” with the Court. This Motion for Discovery is filed pursuant to the Rule of Criminal Procedure and serves to request the prosecution’s evidence. The prosecution will typically also file a Motion for Discovery, seeking the evidence that the Defendant wishes to present at trial.

Discovery consists of things such as witnesses, witness statements, physical evidence, laboratory examination of evidence, medical examination, DNA testing, documents, cellular telephone location information, and recordings. This is not a complete list, and not every item may align with your case.

The Court will often set hearings to check the status of Discovery and to take up any motions concerning the discovery. Per the Arkansas Rules of Criminal Procedure, a case is divided into three stages prior to trial. See Ark. R. Crim. Proc., R. 20.1 (2022). Under these rules the three stages are: (1) an exploratory stage initiated by counsel and conducted without court supervision to implement discovery, (2) am omnibus stage that is supervised by the court and may require court appearances, and (3) a trial planning stage. Id.

Once Discovery is completed and has been reviewed by both the Defendant’s attorney(s) and the prosecutor(s) in a case, a large variety of motions may be made by either party. These motions are typically concerning the exclusion of certain evidence but may also address procedural issues. The outcome of these motions usually affects the progression of a case towards trial.

II. COMMON CAUSES OF DELAYS

Now that the procedure has been outlined, you can see that there can be at least a few hearings in your case. Often, Defendants are frustrated by the number of hearings and callbacks to Court when they don’t understand why they keep getting called back and nothing seems to get done. There are many reasons for this to happen and the most common of those reasons are outlined here.

A. FITNESS TO PROCEED AND CRIMINAL RESPONSIBILITY

Often, after speaking to a Defendant, an attorney may find that the Defendant may not be fit to proceed to trial or may not have had the required mental state to commit the crime(s) they are charged with. The attorney has a duty of reasonable diligence toward their client. See Ark. R. Prof. Cond., R. 1.3 (2022), and Strickland v. Washington, 466 U.S.668, 104 S. Ct. 2052 (1984).

Should the Court order a Fitness to Proceed Examination, the examination is supposed to be done within sixty (60) days unless the Director of the of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services, or their designee, determines that a longer period is necessary for the purpose of examination. A.C.A. §5-2-327(b) (2023). The same is true for a Criminal Responsibility Examination. A.C.A. §5-2-328(a)(3)(A). Also, in both instances, the circuit court must suspend all proceedings. A.C.A. §5-2-327(a)(3)(A) and §5-2-328(a)(1) (2023).

Many things may cause the mandatory period to be extended. Some of these are lack of availability of qualified examiners and backlog from other prior cases in which such orders exist for examination of criminal defendants. Courts are still encountering backlog from the difficulties of the Covid-19 pandemic. This backlog has created many delays for cases.

B. EXAMINATION, EVALUATION, AND LABORATORY TESTING OF EVIDENCE

Most cases involve physical evidence. This can include items such as firearms, substances purported to be drugs, cellular telephones, bank transactions, clothing, and purported injuries. Often, this evidence must be examined by experts and tests must be performed.

The Arkansas State Crime Laboratory hands much of the forensic examination and testing performed on physical evidence within the State of Arkansas. They use specific step-by-step procedures to ensure the integrity of the testing process and accuracy of the test results. Accreditation, Arkansas State Crime Laboratory, Sept. 23, 2023, https://www.dps.arkansas.gov/

crime-info-support/arkansas-state-crime-lab/accreditation/. These processes take time, and the length of time of the individual test depends on what particular test is being performed.

As most of the physical evidence for cases from all of the Arkansas counties goes to the Arkansas State Crime Laboratory, tests may take several months to occur. Kermit B. Channel, II and Cindy Moran, Arkansas State Crime Lab Report – 2022, Sept. 23, 2023, https://www.dps.

arkansas.gov/wp-content/uploads/2022-ASCL-Annual-Report.pdf. Some evidence in 2022 only took an average time of 60 days to test, such as Toxicology, while other evidence had an average time of fifteen (15) months, such as Digital Evidence – Computers. Id.

At times, the Defense may wish to submit their own evidence for testing at private facilities for a second opinion. This will take additional time, depending on the facility used and testing methods. Doing such adds additional time to the timeline of a case.

C. FAILURE TO APPEAR

It is very important that Defendant’s appear for each and every hearing. Failure to appear is a crime and can be up to a Class C felony in the State of Arkansas. A.C.A. §5-54-120 (2022). Failure to appear for a hearing makes it impossible to proceed on certain motions for both the prosecution and the defense because the Defendant is not present in court. If these motions cannot be heard by the Court, the Court’s ruling on them is also delayed until the next appearance of the Defendant or after.

III. SO HOW LONG WILL IT TAKE?

As one can see, there isn’t a definite answer to this question. It depends on what is involved in a Defendant’s individual case. We hope this article allows you to ask your attorney informed questions about case delays so that the attorneys can provide you more detailed and accurate answers. Unfortunately, at times the answer is “We don’t know.” This can be very frustrating for a Defendant. Attorneys do understand this and should try to be informative about delays, such as telling a Defendant what evidence they are waiting to get, or what court delays are occurring, such as closures due to the Covid-19 pandemic.