Criminal Procedure Pt 2: Nebraska Felony Case Progression

As mentioned in the previous post discussing criminal cases in Nebraska; one of the biggest differences between the Nebraska criminal process for felonies when compared to the process for misdemeanors, is which court you are prosecuted in. In Douglas County, NE, all cases typically begin in county court. Felonies, however, are transferred to district court for further prosecution and, if necessary, trial; whereas a misdemeanor offense, such as a first or second offense Driving Under the Influence (DUI), will stay in county court for all phases of the case. 
 

Arraignment/Bond Setting—similar to a misdemeanor case, when you are facing felony criminal charges, the first court hearing you have will be an advisement of your rights, as well as a hearing to set bond. As mentioned above, in Nebraska, your case will begin in county court unless the prosecuting attorney files what is called a direct information. This means your case begins in the same place it would were you charged with a misdemeanor crime. During your initial appearance on a felony charge, you can either request a preliminary hearing or waive your right to a preliminary hearing. If you request a preliminary hearing, the judge will set a date for hearing and then take up the matter of your bond. If you waive your right to a preliminary hearing, your case will be “bound over” to the District Court and then the judge will determine your bond. You should always hire a criminal lawyer before appearing in court on a criminal offense; however if you have not had the opportunity to hire an attorney before your first appearance, often times there will be a lawyer appointed by the court there to represent you for that hearing.

Preliminary Hearing—a preliminary hearing is a hearing to establish whether the prosecution has enough evidence to proceed with their case. The burden of proof for a preliminary hearing is much less than that of a criminal trial. The prosecuting lawyer only needs to show “probable cause” for every element of the crime(s) charged. In other words, the prosecutor needs to prove to the court that you, the defendant, “likely” were involved in the criminal conduct alleged in the complaint. If the prosecution meets their burden (wins), then the case is “bound over” (transferred) to the district court. A new judge will be assigned, and the next hearing will take place at the district court level. Often times defendants will waive their right to a preliminary hearing for one reason or another; waiving your right to a preliminary hearing is not an admission of guilt and only waives rights you may have in regard to that specific hearing. If you win your preliminary hearing your case is dismissed by the court; however, the prosecution is allowed to refile the same criminal action, in which case, the entire process starts over. Double Jeopardy does not apply to cases that have not been fully disposed of either at trial or by the defendant entering a form of guilty plea.

Pretrial Hearing—same as a misdemeanor pretrial hearing, at this hearing motions are filed and progression of the case is discussed between all parties. Often times plea agreements are reached and cases are disposed of.

Hearings on Motions—again, for most motions filed by either your attorney or the prosecuting lawyer, there will be an opportunity for a hearing. In criminal cases, probably the most popular motion that is heard by the court is a motion to suppress evidence.

Trial—both sides get to present evidence in support of their side of the case. The prosecution goes first. You are entitled to a trial by jury on all felony cases.

Sentencing—if you plead guilty or no contest, or if you are found guilty at trial, you ultimately will be sentenced by the Court (i.e. judge). Sentencing is when you receive your punishment. Punishment for criminal offenses most often includes: jail, probation, fines, restitution or some combination of all of the above. On felony cases, a pretrial investigation (P.S.I.) will almost always be ordered by the court prior to sentencing. A P.S.I. is an investigation done by the probation office into the facts surrounding the case, as well as the background of the defendant. Ultimately, the probation office will usually make a recommendation on whether they believe the defendant is a good candidate for probation; however the judge is not bound by these recommendations or any other recommendations made to the court.