Criminal Defense Trial Structure and Notable Aspects

A criminal trial follows a structured process designed to ensure fairness and uphold legal rights. It typically begins with jury selection, moves through opening statements, presentation of evidence, witness testimony, and cross-examination, and concludes with closing arguments and a verdict. Throughout the trial, attorneys and judges address key questions about evidence, credibility, and whether the prosecution has proven guilt beyond a reasonable doubt.

Search Warrants: What They Are and When They’re Necessary

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time.

How Police Obtain Search Warrants

Police must show a judge they have “probable cause” that a crime is happening or evidence will be found at a location. They usually submit sworn affidavits detailing their observations or information from citizens or informants. If the judge agrees, a warrant is issued. The suspect isn’t present when the warrant is granted, but can later challenge its validity before trial.

What Police Can Search for and Seize Under a Warrant

Police can only search the areas and seize the items listed in a warrant. For example, they can’t search a house if the warrant specifies the backyard, or look for weapons, if weapons aren't listed. However, if officers find other illegal items during the search, they can seize them. If the warrant names a specific person, only that person can be searched—unless police have separate probable cause for others present. With just reasonable suspicion, officers may question an onlooker and frisk for weapons for safety, but not conduct a full search.

When Police Can Search Without a Warrant

Most searches happen without warrants because courts allow exceptions where a search is reasonable or the Fourth Amendment doesn’t apply.

Consent Searches: If someone with control of the property voluntarily agrees, the search is valid—even if they weren’t told they could refuse. Consent obtained through coercion or trickery is invalid. Authority matters: roommates can’t consent to each other’s private areas, landlords and hotel operators can’t consent for tenants or guests, but employers can consent to workplace areas. If police reasonably believe someone has authority, consent usually stands.

Plain View Doctrine: Officers can seize evidence in plain view if they’re lawfully present—such as spotting drugs through a car window or marijuana from the air.

Searches After Arrest: Police can search a suspect and nearby areas without a warrant to find weapons or prevent evidence destruction. They may also do a “protective sweep” for hidden accomplices, checking places like closets or under beds. Any contraband found in plain view during a lawful sweep can be seized.

Warrantless searches are allowed in emergency situation when delay risks safety or evidence loss, such as:

• Checking an injured driver and finding drugs
• Entering after hearing someone yell to destroy evidence
• Responding to screams inside a home
• Chasing a suspect into their house

In emergencies, protecting people and preserving evidence outweighs the warrant requirement.

Allowing Police to Make a Warranted Search

A warrant isn’t always required, and officers may have legal grounds you don’t know about. If an officer says they’re entering without a warrant, don’t resist—doing so could lead to injury or an “obstruction” charge. Instead, step aside, let them proceed, and later let the court decide if the entry was lawful. Make it clear you do not consent to the search.

Searches for Cars and Their Occupants

Police can search a car without a warrant if it’s lawfully stopped and they have probable cause it contains contraband or evidence. This includes all compartments and containers that might hold the items. A traffic stop alone doesn’t justify a search, but officers can order drivers and passengers out for safety. They may also frisk occupants for weapons if they reasonably suspect criminal activity and feel a safety risk.

The Right to Own a Gun Under Heller

In District of Columbia v. Heller (2008), the U.S. Supreme Court affirmed an individual’s right to own a gun for personal use, including keeping a loaded handgun at home for self-defense. However, the ruling allows certain restrictions and leaves open questions about which gun control laws remain constitutional.

What Heller Says

The Amendment states: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

For decades, many argued this right applied only to militia service. The Court rejected that view. In an opinion by Justice Scalia, it ruled the Second Amendment protects an individual’s right to own firearms for lawful purposes, such as self-defense at home.

Bottom line: You have a constitutional right to possess a firearm, even outside militia service—but the scope of that right is still unsettled.

How Heller Affects Gun Control Laws

How far District of Columbia v. Heller (2008) will reshape gun control remains unclear. The case struck down D.C.’s strict handgun ban but didn’t address less severe restrictions elsewhere. While affirming an individual right to own firearms, the Court allowed significant limits, including:

• Who can own guns: Felons and the mentally ill are excluded.
• Where guns can be carried: “Sensitive places” like schools and government buildings remain off-limits.
• Sales restrictions: Conditions on commercial firearm sales are permitted.
• Types of guns: Dangerous or unusual weapons, such as sawed-off shotguns, are not protected. The ruling didn’t clarify assault or semi-automatic weapons.

New Challenges to Gun Control Laws

The Supreme Court’s Heller ruling sparked immediate lawsuits against gun control laws in cities like Chicago and San Francisco, with more expected nationwide. Gun rights groups, including the NRA, celebrated the decision, but its long-term impact is uncertain. Future court rulings will determine whether this marks a broad rollback of gun restrictions or remains largely symbolic.

Bail: Getting Out of Jail After an Arrest

After an arrest, most people want out fast—and that usually means posting bail. Bail is money or its equivalent paid to the court to guarantee the defendant will appear when required. If the defendant skips court without a valid excuse, the court keeps the bail and issues an arrest warrant.

How Bail is Set

Judges set bail, but most jails use standard bail schedules for quick release without waiting for a hearing. A signature bond—where you promise to appear and accept a judgment if you don’t—requires a judge at a bond hearing. For serious crimes or flight risk, judges may still require cash bail.

The Eighth Amendment bans excessive bail, meaning it can’t punish or raise revenue. Bail should only ensure the defendant returns to court, though amounts often reflect crime severity. In practice, judges sometimes set very high bail in serious cases (drug sales, rape, homicide) to keep suspects jailed—a practice called “preventive detention,” which courts have upheld.

If bail is too high, defendants can request a reduction at a bail hearing or during their initial court appearance.

Paying Bail

A bail bond is a guarantee purchased for a nonrefundable fee (usually 10% of the bail). This system uses bail bondsmen—though not in Wisconsin. While bonds seem cheaper upfront, paying full bail is refundable (minus a small fee), whereas the bond premium isn’t. Bonds may also require collateral, which can be seized if the defendant fails to appear.

Bail can be:

• Cash or check for the full amount
• Property equal to the bail amount
• Release on recognizance (ROR)—a promise to appear without payment
• Bail Bonds
  

Getting Out of Jail Free

Sometimes people are released “on their own recognizance,” or “O.R.” A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail. These are not that common due to Wisconsin’s well used Signature Bond system.

Signature Bonds in Wisconsin

Most defendants in Wisconsin are released on a signature bond, which is simply a signed promise to return to court. If they fail to appear, the court can enter a judgment for the bond amount.

Judges typically grant signature bonds to defendants with strong community ties, such as:

• Family living locally
• Long-term residence in the area
• Steady employment
• Minimal or old criminal history
• A record of appearing for past charges