Guide to the Criminal Process

The criminal justice system can be very confusing for people who are not familiar with criminal law and procedure. The following guide is made available to provide answers to frequently asked questions about how the criminal justice process works in Spencer County.

The Police and Arrest

Police officers investigate crimes and arrest individuals who are suspected of committing crimes. Most criminal actions begin when someone is taken into police custody.

What is a lawful arrest?

First, a police officer must have reasonable suspicion, based upon articulate facts, to launch an investigation. An officer needs to meet the burden of “probable cause,” in other words having more evidence for than against, to believe that the person being arrested has committed a particular offense.

What happens after someone is arrested?

Once a defendant is taken into custody, he may be searched for officer safety and for jail administrative requirements. Police officers are entitled to seize any contraband or evidence found during this search. Evidence includes the proceeds of the crime, any tools or instruments used to commit the crime, distinctive clothing; any items that may help to connect the defendant with the scene of the crime, including any items that may connect the victim or any witnesses to the scene of the crime.

Evidence is handled according to agency protocol; however, it is generally standard procedure to establish a chain of custody and photograph, catalog, and seal all items of evidentiary value before depositing those items into the arresting agency’s property room.

The defendant is transported to the Spencer County Law Enforcement Center. Juveniles are transported to the Southwest Indiana Regional Youth Village in Vincennes. The jail booking staff will photograph the defendant and any distinguishing features they may have, such as tattoos. Fingerprints are taken and sent to a central repository in Indianapolis. The arresting officer prepares an arrest report, probable cause affidavit, and records any other information that may be required by the prosecutor or law enforcement policy.

For some crimes, the officer has discretion in whether or not to arrest the person or to issue them a summons into court. However, if the defendant does not appear before a court when instructed, a bench warrant will be issued for their arrest.

Are all crimes the same?

In Indiana, there are three categories of violations of Indiana Law: infractions, misdemeanors, and felonies.

An infraction is a violation of state law or statute, but it is not a crime. An infraction is civil in nature, which is the least serious type of offense. There is no term of imprisonment for infractions; however, fines can range from $10,000 for a Class A Infraction to $25 for a Class D Infraction. Minor traffic offenses such as speeding are the most common type of infractions.

A misdemeanor violation is the least serious type of crime. Misdemeanors are punishable by a term of imprisonment of zero to 365 days, and a fine of zero to $5,000. Felonies are the most serious crimes. Effective July 1, 2014, Felonies have been divided into six levels: 1, 2, 3, 4, 5, and 6. The following table shows the range of fines and penalties for the different levels of misdemeanor and felony crimes:

Sentencing Ranges – Offenses Committed on or after July 1, 2014
Class Range Advisory Max. Fine
Murder 45-65 years 55 years $10,000
Level 1 20-40 years 30 years $10,000
Level 2 10-30 years 17.5 years $10,000
Level 3 3-16 years 9 years $10,000
Level 4 2-12 years 6 years $10,000
Level 5 1-6 years 3 years $10,000
Level 6 ½ – 2 ½ years 1 year $10,000
A Misdemeanor 0-1 year Up to 1 year $5,000
B Misdemeanor 0-180 days Up to 180 days $1,000
C Misdemeanor 0-60 days Up to 60 days $500

The advisory amount of imprisonment is a non-binding guideline under the law that provides a starting point for the judge in determining a sentence. However, a judge has the discretion to either subtract days or years to a sentence within the penalty range for that level of offense.

In addition, Indiana law provides for basic felony enhancements under certain circumstances such as when a defendant is a Habitual Offender or a Repeat Sex Offender, or if a firearm is involved in the commission of certain offenses. Indiana law also provides that the death penalty or life imprisonment without parole may apply to certain very serious offenses, such as murder, when specific aggravating circumstances exist.

The Spencer County Prosecuting Attorney’s Office
What is the role of the Prosecutor’s Office?

The Spencer County Prosecuting Attorney’s Office represents the State of Indiana in prosecuting crimes that have occurred within Spencer County. The Prosecutor’s Office has the responsibility and authority to investigate and prosecute crimes that occur within the jurisdiction of Spencer County. However, the investigation of criminal activity is normally the responsibility of police agencies.

What does the Prosecutor’s Office do when someone is arrested?

Police agencies forward their probable cause affidavits for warrantless arrests and police reports to the Prosecutor’s Office so that they can be reviewed by prosecutors. Once charges are approved, the charging information is drafted. The charging information is the formal document that brings charges against an individual. The charging information accompanies the probable cause affidavit and must present the facts providing reasonable cause to believe that the person who is being charged committed the specific offenses.

The police report, probable cause affidavit, and charging information are forwarded to the Prosecutor for final review and approval by him before charges are filed in court. In deciding which charges to file, the Prosecutor must consider the sufficiency of the evidence and the facts surrounding the commission of the crime and the arrest.

The Spencer Circuit Court
What is the function of the Court?

The court is charged with ensuring the fair application of the law. Judges are elected into office every six years. It is the judge’s responsibility to preside over all legal proceedings in court.  The Circuit Court Judge of Spencer County is currently Jon A. Dartt. At the present time there is only one court and one judge that serving Spencer County which does lead to occasional court congestion especially when the court is conducting a jury trial.

The Spencer Circuit Court Judge presides over civil and criminal cases and has exclusive jurisdiction over all probate/estate, trust, and juvenile cases.

Initial Hearings

In Spencer County, the Judge reviews probable cause affidavits within 48 hours of a defendant’s arrest including over the weekend. Bond is automatically set according to a bond schedule adopted by the Court and an initial hearing date is set.

At the initial hearing, the defendant is advised of constitutional rights, informed of the charges pending against him, and bail is reviewed.  A “not guilty” plea is automatically made on the defendant’s behalf at the initial hearing. If the defendant does not have money or means to hire an attorney, the Judge will appoint a public defender. Future court dates will be set at this time. If the defendant is a first-time offender, or if the crime is of a non-violent or less serious nature, the Judge may decide to alter bond or in some instances release the defendant on their own recognizance. However, in most cases bond will continue to be determined by the Court’s bond schedule.

What is Bail and how is it set?

Bail is collateral in the form of cash or bond, which must be posted by the defendant, or the defendant’s agent, for the defendant to be released from custody. If the defendant posts a cash bond, that money will be applied to public defender fees, fines, court costs, state imposed fees, probation user fees and or community corrections user fees.  Any balance remaining is returned to the person who posted the bond upon completion of the case. However, if the offender pays a bail bondsman, that money will be kept by the bondsman as payment.  This collateral is to ensure that the defendant will appear at future court dates. In some cases, if a defendant is already on probation, the defendant bay be held without bond or have bond set according to the bond schedule. In the case of murder, the court may remand the defendant without setting a bond according to Indiana law. The following is the bond schedule that has been adopted by the Spencer Circuit Court:

Bond is determined by the highest level offense for which an offender was arrested

Offense Description Surety Bond 10% Cash Serious Bod. Inj.
Child Molesting, Child Solicitation, Sexual Battery, Sexually Violent Predators under I.C. 35-38-1-7.5  


LEVEL 1, 2 / A Felonies $ 300,000 $30,000
LEVEL 3, 4 / B Felonies $ 200,000 $20,000
All Methamphetamine Related Charges
$ 200,000 $20,000
All Heroin Related Charges
$ 200,000 $ 20,000
Offenders on Felony Probation
$ 200,000 $ 20,000
Level 5 / C Felonies $    40,000 $   4,000 $80,000/$8,000
Offenders on Misdemeanor Probation $    10,000 $   1,000 $20,000/$2,000
Level 6 / D Felonies $      7,500 $       750 $15,000/$1,500
Class A Misdemeanors $      5,000 $       500
Class B Misdemeanors $      4,000 $       400
Class C Misdemeanors $      3,000 $       300

 24-HOUR HOLD: A person arrested on a charge of resisting law enforcement, battery related to domestic or family violence, stalking, invasion of privacy, or strangulation shall not be allowed to post bond under this schedule until 24 hours after book-in. A condition of bond in all such cases shall be that the person is to have no contact with any and all alleged victims of the offense(s).

DETENTION FOR ALCOHOL RELATED OFFENSES: A person arrested and held in custody for an alcohol related offense, shall be detained pending release notwithstanding the posting of bond by the jail pursuant to the table entitled Hours After Initial Reading contained in I.C. 35-33-1-6.

LACK OF IDENTIFICATION: Any person who cannot be positively identified at book-in shall be held without bond until the person is brought before the Court for a hearing to determine bond. This includes, but is not limited to, those individuals who refuse to cooperate in their identification by refusing to be fingerprinted, individuals who possess conflicting identification, and individuals whose identifying information cannot be verified.

BOND AMOUNT ON WARRANT ARREST: Upon issuance of an arrest warrant by the Court, the amount of bail will be stated upon the warrant.

BAIL PROCEDURES: The ten percent (10%) cash deposit shall be subject to the provisions of I.C. 35-33-8-3.2. All cash bonds shall be posted with the Spencer County Sheriff or the Spencer County Clerk only after the person posting the bond has signed the Cash Bond Agreement.

CONDITIONS OF BOND: As conditions of bond or release all persons are subject to the following conditions:

  1. they shall appear in Court at all times required by the Court;
  2. they shall not commit nor be arrested for another criminal offense;
  3. they shall keep their attorney and the Court advised in writing of any change of address within 24 hours of such change; and
  4. they shall comply with any other condition ordered by the Court. In addition, the bond may be used to reimburse the county for the cost of court appointed counsel as well as to pay fines, court costs, and other financial obligations of the defendant. A condition of bond in all cases of battery related to domestic or family violence, stalking, invasion of privacy, or strangulation shall be that the person is to have no contact with any and all alleged victims of the offense(s).
  5. Violation of any bond condition may result in the revocation of bond and the issuance of a re-arrest warrant.
Court Dates

Defendants must be present at all court dates unless they are instructed otherwise by their attorney. Failure to appear may result in a bench warrant for the defendant’s arrest.

Typically, the judge will schedule a pre-trial conference, an omnibus date, and a final pre-trial conference, and a trial date. Historically, the majority of cases are resolved by means of a plea agreement before the case goes to trial. Pre-trial conferences are opportunities for the defense attorney and the prosecutor who is handling the case to discuss issues associated with the case. The omnibus date is the deadline for the state and the defendant to file certain documents relating to the case.

The Trial

What is a trial?

A criminal trial is a formal examination of evidence before a court of law or a jury to determine whether or not a defendant is guilty beyond a reasonable doubt of the criminal charges against him.

How is a jury selected?

A bench trial is a trial heard only by a judge, and the judge has sole discretion over the verdict in the case. A jury trial is a trial where evidence is presented to a jury of one’s peers. For Level 5 felonies and above, twelve jurors are selected and alternates may be chosen. For Level 6 felonies and lesser charges, six jurors are chosen.

The process of jury selection is termed Voir Dire. A pool of potential jurors is notified by the County Clerk’s Office when a trial is scheduled to begin. Potential jurors are called before the court and questioned by both the prosecution and the defense attorney. The goal of jury selection is to choose a fair and impartial jury for that particular case. Both sides have the right to excuse a potential juror for cause if they believe that the juror should not sit in judgment on that particular case. The jurors that are selected are sworn in by the judge and they are given rules that they must abide by as jurors.

After jury selection, how does a trial proceed?

Opening Statements: At the beginning of the trial, the Prosecutor or Deputy Prosecutor assigned to the case makes an opening statement explaining what the State must prove during the trial. The defense attorney may make an opening statement if they wish, but they are not required to do so.

State’s Case: The State’s case is brought by the prosecution and involves the calling of witnesses and the introduction of physical evidence. The prosecution asks questions of each witness. The defense attorney may ask questions on cross-examination. The prosecution may ask clarifying questions on redirect. This process continues until all of the prosecution’s witnesses have testified.

Defense Case: The defense case may involve many witnesses, including the defendant, or they may decide to interview no witnesses. The defendant is not required to present any evidence or to testify at trial. However, if defense witnesses are called, the prosecution may cross-examine them.

Rebuttal: The prosecution may have a rebuttal case, and if this occurs, defense counsel may cross-examine the rebuttal witnesses.

Closing Arguments: The prosecution is the first to deliver closing arguments. Closing arguments typically review the evidence that has been presented in the case, puts arguments for the defendant into perspective, and affirmatively asserts reasons for finding the defendant guilty beyond a reasonable doubt. Next, the defense will deliver a summation that questions the evidence and the credibility of witness testimony in an attempt to convince the jury that there is reasonable doubt to believe that the defendant committed any crime. Lastly, the prosecution ends the trial with a final argument.

Deliberation: The Court instructs the jury on the law and explains any legal concepts that may need clarification. Jury deliberation begins after these instructions are given and may last any length of time. During deliberation the jury may ask to review any evidence presented during the trial or to have instructions or testimony re-read. A jury may find the defendant guilty, not guilty, or be unable to agree. A jury that cannot reach a unanimous verdict is called a hung jury.  When there is a mistrial, as in the case of a hung jury, a defendant may be retried. A not guilty verdict means that the case was not proved beyond a reasonable doubt. A not guilty verdict does not necessarily mean that the defendant is innocent. It simply means that the State did not prove the case beyond a reasonable doubt in the opinion of the jury.


What types of sentences are imposed if a defendant is found guilty?

If a jury delivers a guilty verdict, a sentencing hearing will be scheduled by the judge and a pre-sentence investigation will be conducted by the Probation Department. Sentencing is governed by statutes that indicate those crimes for which imprisonment is mandatory, and the permissible minimums and maximums for each level of crime. To determine a defendant’s punishment, the judge considers the defendant’s criminal history, his or her level of involvement in the crime, their background, and the range of incarceration permitted by law.

A term of probation may be given in addition to or instead of incarceration.  Mandatory counseling or classes as part of probation are often ordered and can provide training, guidance, or assistance to the defendant as part of their rehabilitation.

Supervision by the Community Corrections program may be imposed for some offenses either in combination with or instead of jail/probation time. The court can order the defendant to be on electronic house arrest, to be on a program of daily reporting, or to participate in a drug court program with many rules and conditions that include random drug and alcohol testing.

In addition, a fine or restitution may be imposed as a supplement to any other prescribed punishment if it was part of a plea agreement, or it may be the only sentence imposed.


Criminal Justice Reform

As noted above, a new criminal code passed by the Indiana General Assembly took effect on July 1, 2014. This reformed criminal code created new classes of felonies and new sentencing ranges. The intent of the legislation was to reduce sentences for drug related crimes as well as to reduce and ultimately eliminate non-violent offenders convicted of lower level felonies (Level 6 felonies) being sent to state prisons within the Indiana Department of Corrections. As of January 1, 2016 no offender convicted of a Level 6 offense will be eligible to serve time at the Department of Correction except in cases where the offender has violated probation ordered as part of a Level 6 felony sentence. This will force counties to either house such offenders in local county jails or to place the offenders on community supervision through Community Corrections programs. Prosecutors and others involved in the criminal justice system are closely monitoring the effects of these changes in the law and will no doubt be asking legislators to consider changes to the law as problems and issues arise during implementation of the new criminal code.