Why Do They Keep Passing My Case?


SHORSTEIN, LASNETSKI, & GIHON
answers the question:
"Why do they keep passing my case?"

We often get the question, "Why do they keep passing my case?"  People often think that this is a sign that the prosecutor doesn't have enough evidence, but in reality, it is what is happening between the court dates that are usually more important than what is happening at the court dates.  Most court dates are called, "pretrials."  Pretrials are court dates between the Arraignment and disposition (plea of guilty, plea of no contest or trial).  The purpose of the pretrial is for the judge to get the prosecutor and defense attorney in one room and to make sure that everyone is doing what their supposed to be doing.  The judge wants to move the case along to disposition (either a plea or a trial).

Most of the work done by your attorney is done outside of court and in between the pretrial dates.  And here's why:

1)  Investigation
When your attorney gets involved in the case, law enforcement has usually already completed their investigation, provided all of the evidence to the prosecutor, who has also completed his or her investigation.  Your attorney does not have the benefit of seeing or knowing all of the evidence that the State has until the court case begins and rules of procedure kick in.  The State has to turn over a list of witnesses and disclose any evidence it has.  This often requires the defense attorney to order CDs, take depositions, investigate witnesses, locations, and more, and others investigate the case.  Depending on how serious and complex the allegations, this may not take more than a couple of weeks, or may take many months to more than a year in some homicide or complex conspiracy cases.  

2)  Negotiation
Negotiations take time.  The prosecutor usually wants a more severe sentence than the defense attorney.  Prosecutors are often less willing to agree to a lower sentence at the beginning of a case.  Often, the results of depositions and/or the investigation can help the defense attorney in negotiations.  Prosecutors often will spend more time negotiating, the closer the case is to go to trial.  The reason is that if a case is not ready for trial, the prosecutor has time, but he has other cases that are ready for trial, so he or she will often give the most attention to the oldest cases that are about to go to trial. 

3)  Preparation
You only get one chance at a trial (unless it is overturned on appeal or there is a hung jury).  The more serious the potential consequences, the better prepared and the more time your attorney should spend preparing for trial.  If you are facing a mandatory life sentence, you wouldn't want your attorney spending 10 hours in preparation of the trial. 

4)   The Criminal Justice System Moves Slowly
Because of the sheer number of cases and the fact that older cases and cases where the person is in jail usually take priority over newer cases and cases where the person is out on bond, it will often take time for your attorney to obtain discovery, obtain offers and counteroffers, and to place you in a strategic position to obtain the best possible result.  Your attorney should be able to articulate to you why the case is moving at the pace it is and what the strategy is. 


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