Right to Counsel
The United States and Utah Constitutions guarantee every criminal defendant the right to counsel in criminal proceedings. For those who cannot afford an attorney, the prosecuting government will pay for an attorney if the defendant faces a substantial probability of receiving jail time, even a suspended sentence of jail time.
When a defendant first appears in court, the court will explain the right to counsel and a criminal defendant who believes that he or she is entitled to counsel at government expense should request counsel at that time.
The court will ask the defendant to complete an affidavit of indigency. The person will list income, assets, and liabilities. If the person's income is less than 150% of the poverty guidelines established by the United States government, the person will qualify for counsel. For those who make over 150% of the poverty guidelines, the court will still appoint counsel if the person is otherwise able to show that the person cannot afford to hire an attorney at his or her own expense.
At the first appearance, the defendant will be formally notified of the charges and may be advised of his/her rights by a magistrate. The defendant will be advised of the right to counsel. A date is set for a preliminary hearing (felony cases only), which the defendant may waive. In felony cases, no plea is entered at this stage.
For misdemeanor cases, the defendant is arraigned at their first appearance. See the Arraignment section for more information.
A preliminary hearing only applies in felony and class A misdemeanor cases. The purpose of a preliminary hearing is to determine
- whether probable cause exists to show the crime was committed, and
- whether probable cause exists to show the defendant was the person who committed the crime.
At the hearing, the judge listens to witnesses' testimony and receives evidence. If the judge finds probable cause that the defendant committed the crime, the defendant is bound over for trial. If the judge concludes there is insufficient evidence, the case is dismissed. Charges may be amended at the preliminary hearing.
In misdemeanor cases, this is the stage at which the court advises the defendant of the defendant's rights, including the right to counsel. The defendant will be offered an opportunity to consult with counsel before proceeding further. The court will reschedule the hearing to give the defendant that opportunity.
When the defendant is ready to proceed, either at the initial arraignment, or the rescheduled arraignment in both misdemeanor and felony cases, the judge reads the charges to the defendant, who must enter a plea.
If the plea is "guilty," the court will ensure that the defendant understands the rights the defendant will be waiving. If the court is satisfied the defendant understands the consequences, the court will accept the guilty plea. The court will schedule a date for sentencing.
If the plea is "not guilty," a pretrial conference and trial dates are usually scheduled. A "not guilty" plea preserves all of the defendant's options. There are also two other types of pleas
- No Contest: This has the same procedural effect as a guilty plea, but rather than admitting guilt, the defendant admits that the prosecutor would likely prevail at trial. A judge has discretion to reject this type of plea.
- Alford plea: This plea may be used when the defendant wants the advantage of a plea bargain, but cannot or will not admit guilt. Instead, the defendant pleads to avoid the potential consequences of going to trial, and pleads without admitting guilt. A judge has discretion to reject this type of plea.
Before a trial begins, the prosecution and defense may file any number of motions with the court. A motion is a formal request to a judge to issue an order. These may include motions to suppress the introduction of evidence of a defendant's prior convictions, motions to suppress evidence, or requests for discovery. If a defendant would like to file a motion, it must be done at least 7 days before the trial and must be in writing. All motions should be heard and decided by the judge before a trial can proceed.
At its discretion, the trial court may hold a pretrial conference in which the prosecutor and defense attorney attempt to negotiate settlement of the case. A judge may refuse to approve a proposed settlement. Cases not settled are set for trial.
If a case is set for trial in Justice Court and it involves a domestic violence offense under the Cohabitant Abuse Procedures Act, the defendant or prosecuting attorney can have the case transferred to the District Court. Utah Code 78A-7-106(6) by filing a Notice of Transfer. The form is available under on our Criminal Justice page under Criminal Justice Forms.
In this process, the prosecutor and defense attorney negotiate a mutually satisfactory disposition of the case. The judge does not participate in the plea bargaining process, but must approve the proposed plea agreement. The defendant and the prosecutor must both approve the plea bargain. If all parties accept the plea bargain, and the defendant enters a plea of guilt, the next step is the defendant's sentencing.
Depending on the type of action, a case may be tried before a judge (bench trial) or before a jury with a judge presiding. Whether the case is civil or criminal, or tried by a judge or jury, the procedure is essentially the same.
At the trial's beginning, the clerk calls a panel of prospective jurors. The judge or, in some cases, the lawyers, ask the potential jurors questions about their background and general beliefs to determine any biases or prejudices. This process is called "voir dire."
If any attorney or judge feels that a juror is not qualified for the case, the juror is excused for cause. There is no limit to a party's challenges for cause. Both sides are entitled to a certain number of peremptory challenges, which means they may excuse some prospective jurors without stating any reasons (unless the motives appear to be motivated by race or gender.)
Attorneys for each side make statements to inform the court and jurors of the nature of the case, the evidence they will present, and the facts they expect to prove. The defense may choose to wait to make an opening statement until after the prosecution has rested its case, or may choose not to make one.
Each side makes its case based on testimony from witnesses and physical evidence. The prosecutor/plaintiffs call their witnesses for direct examination to state what they know about the alleged crime or injury. The defense may ask questions of the same witnesses (cross-examination). Then the prosecutors/plaintiffs may re-examine their witnesses (re-direct). Physical evidence, such as documents, pictures and other exhibits, is also introduced.
After the prosecution has rested its case, the defense may call witnesses to give testimony to disprove the prosecutor's/plaintiff's case and to establish the defendant's case. The prosecutor/plaintiff may cross-examine the witnesses. The defense may then re-examine its witnesses.
When the defense has presented all its witnesses, the prosecutor/plaintiff may again call witnesses to rebut any new information introduced by defense witnesses. The judge may allow surrebuttal (a rebuttal to the rebuttal) by the defense.
Before closing arguments, the judge will instruct jurors carefully as to what law they are to follow. In civil cases, the jury must determine that a preponderance of the evidence favors one party. In criminal cases, the defendant must be found guilty beyond a reasonable doubt to be convicted.
After jury instructions are given, both attorneys summarize the evidence and testimony in an effort to persuade the judge or jury to decide the case in favor of their client. The prosecution makes its closing argument first, then the defense, and then the prosecution responds to the defense's closing argument. Either side may waive closing arguments.
After closing arguments, the court orders the jury to retire to the jury room for deliberations.
In criminal cases, a verdict must be unanimous and must be given in open court with the defendant present, unless he chooses not to be.
- For criminal cases there are a limited number of possible verdicts: guilty (of some or all of the charged crimes, or guilty of a lesser crime); not guilty (of some or all of the charged crimes); not guilty by reason of insanity or affirmative defense; guilty and mentally ill.
- For civil cases, two types of verdicts are rendered - general and special. The verdict does not have to be unanimous; at least three-fourths of the jurors must agree to the verdict. In general verdicts, the jury has decided the case either in favor of the defendant or the plaintiff. In special verdicts, a general decision is not announced. Rather, the jury has answered certain factual questions, leaving the "total" decision up to the court.
- In a criminal case, after a verdict of guilty or a plea of guilty, the defendant has the right to be sentenced in no fewer than two nor any more than 45 days following conviction. If the defendant chooses, he or she may waive that time and may be sentenced on the day of conviction or the day of the plea. The defendant may also choose to be sentenced after 45 days if they need more time to prepare for sentencing.
- In a civil case, after the verdict or after the court has decided the facts in a bench trial, a judgment will be rendered. The court will award money damages or injunctive relief.