The federal government and the State of Utah have enacted statutes that regulate the possession, carrying, use, sale, manufacturing, importing and exporting of deadly weapons. Deadly weapons are typically defined as instruments that can be used or are intended to be used to cause death or serious bodily injury. Deadly weapons may include firearms, knives and explosives. Although the Second Amendment to the United States Constitution provides a right to bear arms, the government may, in certain instances, reasonably regulate the possession or use of firearms. Such regulations are usually designed to protect the health, welfare and safety of citizens who might be harmed by the uncontrolled possession and use of deadly weapons.
Some of the same issues that arise in drug possession cases also become relevant in weapons possession cases. For example, one may unlawfully possess a weapon either actually or “constructively.” Just as in the area of drug possession, constructive possession means having both knowledge of the weapon and the intent and ability to exercise dominion and control over it.
Unlawful possession of a weapon may also enhance the charge and penalty if the defendant possesses or uses a weapon during the commission of another offense. For instance, if a defendant commits a sexual assault and uses (or in some cases merely possesses) a deadly weapon while carrying out the offense, then the defendant may be charged with the sexual assault and the weapons offense. The addition of the weapons offense increases the punishment imposed on the defendant and is intended to deter individuals from committing crimes while using or possessing deadly weapons.
If you have been charged with unlawful weapon possession, contact an experienced Midway Utah criminal defense lawyer.
For a defendant, the criminal process usually begins at the time of arrest. An arrest indicates that the police have probable cause to believe that the person being arrested has committed a crime. Probable cause means that the police officer believes there is a “fair probability” that the suspect has engaged in criminal activity. Thus, the officer doesn’t have to be certain that the suspect committed a crime in order to make an arrest. Probable cause may be developed by relying upon witness reports or observations of criminal activity or by conducting extensive police investigations into suspected illegal conduct.
Once arrested, the suspect is advised of his constitutional rights. These rights include the right to remain silent, the right to have an attorney present during questioning and the right to have an attorney appointed if the suspect is unable to afford one. The suspect is then booked, fingerprinted and photographed. As soon as possible after the arrest, the suspect is taken before a judge or magistrate and advised of the charges against him. At this time, the judge or magistrate may also make a determination concerning the pretrial release of the suspect. Depending upon the nature of the crime and the risk of flight, the suspect may either be detained without bail, detained pending the posting of a specific bail amount or released on his own recognizance, which means that the suspect simply promises to return to court for further proceedings in the case.
Indictment And The Grand Jury Process
In some cases, prior to an arrest, a grand jury will be convened to investigate suspected criminal activity. The grand jury is composed of a group of lay citizens who are charged with the responsibility for gathering information and determining whether probable cause exists to issue an indictment or formal charge against anyone. The grand jury has significant investigatory power and can subpoena witnesses and documents on a fairly broad scale as it carries out its functions. Subpoenaed witnesses must appear before the grand jury and bring any subpoenaed documents with them. Additionally, witnesses are not permitted to bring counsel into the grand jury room, although they may leave the room to consult with counsel on specific questions. Failure to comply with a grand jury subpoena may result in sanctions for contempt, which could include a period of incarceration until the witness agrees to comply with the grand jury request. These types of grand jury investigations often result in the issuance of an indictment, which then requires the police to formally arrest the person(s) named in the indictment. Grand jury investigations of this nature are particularly useful for investigating large-scale criminal activity that is often associated with white- collar crime (e.g., securities fraud, tax fraud). Again, because the grand jury has broad subpoena power and can demand testimony and documents, it can use relatively unrestricted investigative techniques that are, for the most part, constitutionally unavailable to law enforcement officers.
The grand jury process may also be used after the arrest of a suspect in some cases. Typically, these grand jury proceedings are initiated and led by the prosecutor who believes that a crime has been committed and presents the government’s evidence against a specific suspect to the grand jury. Because the government’s evidence is presented unchallenged, in all but the weakest cases, the grand jury finds probable cause to issue an indictment against the suspect.
Grand jury proceedings and the identities of the grand jurors are guarded with the utmost secrecy. The secrecy is intended to protect the grand jury in its fact-finding process by ensuring that grand jurors are free from external influences that might affect the impartiality of the decision-making process.
In some cases, in lieu of the grand jury indictment process, the prosecutor may file an information with the court. The information, which is used primarily in less serious cases, is a formal written statement of the charges against the defendant and serves the same purpose as a grand jury indictment. It is important to understand that neither the issuance of an indictment nor the filing of an information means that the defendant is guilty of the crime. These are merely formal statements of the charges that must be proven at trial.
Arraignment And Pretrial Motions
Once the indictment or information has been issued or filed, the defendant is brought before the court to be formally charged with the crime. This proceeding is called the arraignment. During the arraignment, the charges are read in detail to the defendant, who is asked to formally enter a plea to the charges. At the arraignment, the court will also insure that the defendant is represented by counsel and may hear arguments for and against setting or reducing bail for the defendant’s release pending trial.
If the defendant pleads guilty at the arraignment, the court will carefully question the defendant to determine whether the guilty plea is being made knowingly and voluntarily. The court is essentially seeking to ensure that no one has improperly coerced the defendant to enter a guilty plea. The court will also instruct the defendant that by pleading guilty, he or she is waiving the right to a trial and choosing to proceed immediately to the penalty phase of the criminal process. If the court is satisfied that the defendant is voluntarily entering a plea of guilty, a date will be set for sentencing. Defendants who do not choose to plead guilty at the arraignment will have their cases scheduled for trial during the arraignment proceeding.
Once a case is scheduled for trial, both the prosecution and defense begin to plan their strategies. The defense strategy may include challenging the government’s collection of evidence against the defendant on constitutional grounds. To carry out this strategy, the defendant may file motions to suppress evidence, arguing that the evidence was seized in violation of the Fourth Amendment or that incriminating statements were obtained in violation of the Fifth or Sixth Amendment. Depending upon the outcome of these motions to suppress and the nature of the evidence suppressed, the government’s case may not be able to proceed and the case against the defendant may have to be dismissed. For example, if a defendant is charged with narcotics trafficking and the narcotics evidence is successfully suppressed because of an unlawful search of the defendant’s home, the government will not be able to proceed with the case because a crucial and necessary piece of evidence will be excluded from the case.
During the pretrial process, the government and defense have certain obligations with respect to sharing evidence. For example, the government is obligated to share information that tends to show that the defendant might not have committed the crime. Additionally, both sides must give notice of potential witnesses and experts to be called during the trial, and the defendant must provide notice as to whether certain defenses, such as the insanity defense, will be presented during the trial. This pretrial exchange of information is intended to allow both sides to fairly and adequately prepare and present their cases and avoid the disruption and surprise associated with “trial by ambush.”
Trier of Fact: Judge or Jury
The defendant may elect to have his case tried before a judge or a jury. If he chooses to have it tried only by a judge, then the judge hears all of the factual evidence, makes evidentiary rulings during the trial and renders a verdict at the conclusion of the case. If, however, the defendant chooses to have the case tried before a jury, then the jury selection process is the first phase of the criminal trial.
In Utah, potential jurors are selected from voter and license registration lists. From this broad pool, both the defense and prosecution attempt to identify jurors who can listen to the evidence in an unbiased fashion and render a verdict based solely upon the evidence submitted at trial. The process of questioning and selecting jurors is called voir dire. During this process, the defense, the prosecution and occasionally the judge will ask questions of potential jurors in an attempt to expose any biases or preconceived notions that might interfere with their ability to render a fair and impartial verdict. During the voir dire, each side (the defense and prosecution) may request that prospective jurors be excused from the case either for cause (e.g., bias) or, in limited instances, for no reason at all. Requesting that a juror be excused without providing a reason is known as exercising a peremptory challenge. Each side has a limited number of peremptory challenges and may use them to excuse jurors for practically any reason except race and gender.
Once the jurors have been selected, the trial begins with opening statements by the government prosecutor. The defendant comes into the trial with a presumption of innocence, and the government has the burden of proving each of the material elements of the crime beyond a reasonable doubt. During opening statements, the prosecutor usually begins by explaining the government’s theory of the case to the jury. The prosecutor will articulate how the government’s evidence will establish that a crime was committed and that the defendant is the perpetrator of the crime. After the government’s opening statement, the defense presents its opening statement and theory of the case. This is the first opportunity for the defendant to refute the government’s theory of the case and set the stage for alibi or other types of defenses (e.g., self-defense, insanity). During the opening statements, no evidence is introduced, and each side explains its theory of the case in a narrative fashion.
Presentation of Evidence
After the opening statements, the presentation of evidence begins with the government’s case-in-chief. Since the government carries the burden of proof, the prosecutor will begin by introducing evidence on each of the material elements of the offense in an attempt to establish the defendant’s guilt beyond a reasonable doubt. The evidence presented is usually testimonial in nature and is introduced by calling witnesses to the stand. Evidence might also consist of documents, which will be introduced into evidence through witness testimony that verifies the authenticity and accuracy of the documents. Since most crimes are committed in secret with very few direct eyewitnesses, in most cases, the government must build its case piece by piece using circumstantial rather than direct evidence.
Utah criminal law process is complex. If you have been charged with a crime in Utah, contact an experienced Midway Utah criminal defense lawyer.
Midvale Utah Criminal Lawyer Free Consultation
When you need legal help with a criminal case in Midvale Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with Sex Crimes, Drug Crimes, Assault Crimes, DUIs, and more. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
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