Notice–Nature Of Proceedings
1. After a petition for termination of parental rights has been filed, notice of that fact and of the time and place of the hearing shall be provided, in accordance with the Utah Rules of Civil Procedure, to the parents, the guardian, the person or agency having legal custody of the child, and to any person acting in loco parentis to the child.
2. That statement may be contained in the summons originally issued in the proceeding or in a separate summons subsequently issued. The summons shall contain a statement to the effect that the rights of the parent or parents are proposed to be permanently terminated in the proceedings. A verbatim record of the proceedings shall be taken and the parties shall be advised of their right to counsel. A hearing shall be held specifically on the question of termination of parental rights no sooner than 10 days after service of summons is complete.
3. The court shall in all cases require the petitioner to establish the facts by clear and convincing evidence, and shall give full and careful consideration to all of the evidence presented with regard to the constitutional rights and claims of the parent and, if a parent is found, by reason of his conduct or condition, to be unfit or incompetent based upon any of the grounds for termination described in this part, the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered. The proceedings are civil in nature and are governed by the Utah Rules of Civil Procedure.
The many legal procedures associated with modern criminal trials have developed over centuries. States and the federal government follow a largely uniform set of procedures. Assuming that the criminal trial is carried out to completion, those procedures tend to include the following:
Judge or jury trial: The defense often has the right to decide whether a case will be tried to a judge or jury, but in some jurisdictions, both the prosecution and the defense have the right to demand a jury trial.
Jury selection: If the trial will be held before a jury, the defense and prosecution select the jury through a question-and-answer process called “voir dire.” In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys, as well as questions that the judge comes up with on his or her own.
Evidence issues: The defense and prosecution request that the court, in advance of trial, admit or exclude certain evidence. These requests are called motions “in limine.”
Opening statements: The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. Because neither side wants to look foolish to the jury, the attorneys are careful to promise only what they think they can deliver. In some cases, the defense attorney reserves opening statement until the beginning of the defense case. The lawyer may even choose not to give an opening statement, perhaps to emphasize to the jury that it’s the prosecution’s burden to do the convincing.
The following are the basic court procedures set up in every county, although each jurisdiction have small differences in when and how they conduct the process for felony charges:
Arraignment is the first time you will go to court on your case. At the arraignment. The Judge will tell you what charges have been filed against you by the District Attorney. The Judge will ask you if you can afford a lawyer. If you have a private attorney who is hired before your arraignment, you are in somewhat more of an advantageous position. Your attorney can interview you before you go to court and find out whether it is advisable for you to make a bail motion. In some cases, the alleged victim or witnesses can be brought to court to talk to the Judge or District Attorney. A private attorney on the job immediately can begin to interview witnesses and to start to work on your case while events and memories are fresh. Another thing that a private attorney can do for you at arraignment is to do his best to avoid publicity for your case. Rather than have you judged in the media, it is better to have you out of sight, out of mind. I do my best to avoid media coverage or mitigate the damage.
The Discovery Process
Preparation of your case consists of two aspects. One aspect is to know everything possible about the prosecution’s case. The other is to gather every possible witness and every possible piece of evidence that will support the defense. This should be the goal from the very first day. The process of getting information from the D.A. is called “discovery.” This process begins immediately when I am retained on a case. The discovery process initially is an informal procedure where I ask for all the information on the case, including police reports, statements, supplemental reports, dispatch recordings, recordings of conversations, video that may be available, prior convictions of witnesses, information on confidential informants, exculpatory information, and any other information that may be relevant to the case. There is an ongoing obligation of the District Attorney’s office to provide this information. If there is reason to believe they are withholding information, then a Motion to Compel discovery is warranted and the judge will make a decision on what information has to be turned over.
The preliminary hearing is held to see if there is enough evidence that a felony was committed and the person charged committed it. It is a screening process. Its purpose is to weed out groundless charges and to provide the court to hear enough evidence to reduce some charges to misdemeanors rather than felonies before they go to the trial process. The rules of evidence are relaxed at the preliminary hearing. Police officers are allowed to testify to hearsay. That means, all a police officer has to do is speak with someone, be it a witness, another cop, an expert, and with few limitations, the police can then come to court and testify as to what the other person said. This can limit the Judge’s ability to evaluate the credibility of witnesses when considering reducing or eliminating charges. In order to survive the preliminary hearing stage, the D.A. only has to show that a reasonable person would have a strong suspicion that the crime was committed. This standard of proof is the most minimal that any judge in a criminal case has to decide. A defendant has a right to have his hearing within ten court days of his arraignment. If this rule is violated, the court is required to release the defendant. The court must then have the hearing within sixty calendar days from the date of the arraignment.
Arraignment On The Information
After a preliminary hearing is conducted, the D.A. is obligated to file an additional charging document called “information.” This is the document that lists the charges you will be facing at trial. The D.A. is obligated to file this document within fifteen days of your preliminary hearing. You have a right to a jury trial within sixty days after the arraignment on this information.
You can expect several motions will be made through the course of your case. They can be made before, during and after the preliminary hearing.
There is no part of the criminal justice system that is more exciting than a trial. It may also be the last place where a defendant has a chance to be treated fairly. It is important that you be prepared for the undertaking and this takes significant effort, time and skill by your lawyer. He should include you in the process and make sure you know what is happening, why, and when.
In Limine Motions
These are motions made at the beginning of the trial, and outside the presence of the jury. Sometimes they are done in a trial court’s chambers, but a defendant has a right for them to be public, to be present, and to meaningfully participate. They usually concern what evidence will be allowed, or not allowed into the trial. In many cases the prosecutor will be seeking to introduce evidence of crimes not associated, or connected to the current case. This should be vigorously opposed by your attorney. Your attorney should be seeking to limit the evidence as much as possible and create an environment of fairness. If in custody, there should be no indication within the courtroom that you are housed at the jail. There should be no appearance by the bailiffs that you are somehow a danger that they need to protect against. All of this happens before a jury panel is brought into the courtroom to begin selection.
The judge usually orders a panel of forty to sixty jurors. Jurors are called by a random process. Judges will allow a written questionnaire to be given to the jurors in complex or serious cases so that the court and the lawyers will have more information about the jurors. The judge will explain to the panel what the case is about, how long it is expected to last, and introduce the people who will be involved. A judge usually begins by discussing hardships, such as illness, disability, serious loss of income, etc. People can be excused for these reasons. Twelve to eighteen jurors are now called to sit in the jury box. “Voir dire” comes from French and means “to speak the truth.” This refers to the process of jury selection during which jurors are sworn to tell the truth about their qualifications to serve on a jury and then asked questions about themselves that are designed to give both sides information about the prospective jurors. The process is designed to bring out any prejudices that they may have that would affect your case. After the jurors seated in the box have been asked questions, the attorneys are given an opportunity to challenge “for cause.” A “for cause” challenge means that the attorney thinks the juror cannot be fair and impartial in the case and should be removed. The reasons for the challenge will come from the statements made during voir dire. There is no limit to the challenges for cause. After challenges for cause, the attorneys are given “peremptory challenges.” These are challenges left up to the discretion of the attorneys. Each side is given ten challenges in a felony case, and twenty if the case carries a possible life term in prison. The jury selection process is always challenging. The person who is on trial should certainly be an important part of this process. You should be watching, looking and listening to the jurors to see what you can pick up in the jury’s body language, answers to questions, attitudes and values. You need to find out if you like the prospective juror and if the prospective juror likes you and could be fair. After a jury of twelve members plus alternates is selected, the trial moves to opening statements.
The opening statement is the attorneys’ opportunity to tell the jury what the witnesses will say and what evidence will be introduced. This is the time when the theme of the defense of the case should be stated in the strongest and plainest terms. Your lawyer needs to get up there and tell your story with conviction and passion from the beginning.
The Prosecutor’s Case And Confrontation
After the opening statements the prosecution presents its case. They go first because they have the burden of proof, and you are presumed innocent. The most important and skillful role of the defense attorney during the presentation of the prosecutor’s case is to be alert and make needed objections to questions and evidence. Appellate courts have strict rules that if some objections are not made, they are deemed waived. Your attorney must be vigilant. After witnesses testify for the prosecutor, your attorney will cross examine them. Cross examination reveals truth. It is a subtle art. Cross examination depends very much on the circumstances and facts of each case, and each individual witness. Cross examination is the time when thorough preparation and investigation pay off. It is the time to bring out previous statements that differ from trial testimony. It is the time to bring out biases, prejudices, and prior occasions of untruthfulness. Your lawyer should spend all the time necessary before trial to prepare careful cross examination of each witness who appears against you. This is called “confrontation” and it is your right.
The Defense Case
After the prosecution rests the defense has an opportunity to present witnesses and evidence. It is not required. You have the right to say nothing and argue that the prosecution has not met its burden. The most important decision at this time is to determine whether you should testify.
After the defense case has been presented the prosecution has an opportunity to call rebuttal witnesses. They often try to have a particularly nasty and damaging witness for rebuttal.
After both sides have presented their cases, the attorneys will give final arguments. Since the prosecution has the burden of proof, they get to argue twice. The prosecutor opens, then your lawyer argues, then the prosecutor responds to your lawyer’s argument. Your lawyer needs to have the basic outline of the final argument done before ever entering the courtroom. He needs to collect ideas for final argument from the time the case begins. Every case has surprises and this need to be incorporated into the final argument.
Instructing The Jury
The judge instructs the jury either before or after final argument. Instructions are statements of the law that the jury must follow when deciding the case. Judges will sometimes refuse to give instructions presented by the defense. These become issues on appeal. They should be researched and presented even if there doesn’t appear to be much immediate chance of success in getting the judge to read them to the jury.
Termination Of Parental Rights Lawyer
When you need legal help with parental rights termination in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506