Initial appearance (07/23/2012)
Defendant is advised of the charges they are facing, and if bond is an option, the amount is set. Holmes was charged with 24 counts of first degree murder, crimes which prevent the setting of a bond unless after an evidentiary hearing, the prosecution fails to prove that the proof is evident or the presumption great that the defendant committed first degree murder, a burden of proof greater than probable cause but less than proof beyond a reasonable doubt.
Preliminary Hearing (scheduled for 11/12/2012)
The defendant is not required to enter a plea during the advisement.
In Colorado, the filing of serious felony charges such as murder and attempted murder entitle the defendant to a Preliminary Hearing, in which the defense gets to challenge whether probable cause exists to "bind over" the case for trial, providing the defense the opportunity to challenge the prosecution's evidence. The burden of proof is on the prosecution to establish probable cause that the defendant committed the crimes, a relatively low standard of proof required to move the trial on to arraignment, the next stage of the case.
The rules of evidence are "relaxed" at preliminary hearings, meaning that hearsay and lack of foundation objections are invalid. Typically, the lead detective simply recites what the various witnesses say happened, and can provide the opinions of experts to the court as well.
The judge has to consider the prosecutions testimony in the light most favorable to the prosecution; witness credibility, affirmative defenses, sanity, and constitutional issues such as Fourth or Fifth Amendment claims, cannot be raised during preliminary hearings.
Arraignment is the step in which the defendant enters a plea of guilty or not guilty, including not guilty by reason of insanity. Generally the defendants always plead "not guilty" in this step regardless of where the case is likely to go. They are permitted to change their plea later if a deal is reached with the prosecution.
Pretrial Conference (TBD)
It is unknown at this point whether the Arapahoe County DA will seek the death penalty. However, the Arraignment will represent the beginning of the 60-day deadline by which that decision must be made. While many believe the current DA would seek the death penalty, she will almost certainly no longer hold the office of DA when the trial begins.
Motions Hearing (if necessary)
A majority of criminal cases will be settled prior to reaching the trial. The pretrial conference or dispositional hearing is one stage when the prosecutor and defendant can reach an agreed-upon guilty plea or pleas, called a plea bargain.
- The Plea Bargain
Prosecutors and defense counsel will pursue negotiations which can include dismissing charges which carry harsher or mandatory punishments in order to acquire a guilty plea to other charges to avoid a trial. In a death-penalty eligible case, this might include guilty pleas to first degree murder, which carry mandatory life sentences without possibility of parole, to avoid execution as a possible post-trial penalty.
It would be pure guesswork at this point to determine what Holmes and his defense might do in this step however a strong case for the prosecution lowers the chances of any significant concessions in terms of charges and the resulting sentence.
Additional pretrial conferences can include requesting court orders from the judge and otherwise preparing for the upcoming trial.
If the defense or prosecution file a request for a court order on constitutional, statutory, or evidentiary issues, this is known as a motion. If the motion cannot be resolved through negotiation, the motion will be addressed in a Motions hearing.
Jury Trial (TBD - if necessary)
The defense or prosecution can introduce evidence or testimony in order to support their side of the argument prior to the judge making a ruling.
All crimes which could result in a sentence to incarceration entitle Colorado defendants to public trials by jury, which in this case, is a jury of 12.
Voir Dire (Jury selection)
A jury is made up of a pool of peers (in this case people who are over 18 years of age and are otherwise eligible to serve on a jury who at the time of trial, live in Arapahoe County). This pool starts much larger than is necessary because the prosecution and defense will whittle down the pool to the requisite number of jurors.
This is a very tricky process in a very public criminal act as seen in this case. The Jurors must be able to hear the case without prejudice and it is the job of the prosecution and defense to ensure that the 12 people finally selected will be able to hear only the evidence and consider just that in order to come to a verdict.
As the name suggests, this is the first statement given by the prosecution and the defense to the jury. The attorneys will preview what they will present during the trial, lay out the facts as their evidence presents it and attempt to sway a jury's initial position heading in to the rest of the trial, although technically speaking, attorneys are not allowed to argue during opening statements, and at least in theory, are restricted to telling jurors what they expect the evidence to show.
Presentation of Evidence
The defense can reserve its Opening Statement until the prosecution has rested its case, but few experienced criminal defense attorneys choose to do that.
The prosecution and defense introduce evidence, call witnesses, and conduct what is called direct examination of their witnesses in order to establish facts, confirm those facts or contradict statements made by the opposing side.
The opposing side can also cross-examine witnesses in order to challenge or impeach the witnesses in order to further their side of the case.
The prosecution and defense are given the opportunity to argue their side of the case one more time. The prosecution goes first and last, with the defense argument given in between.
The closing argument is generally a little more elaborate as the attorneys seek to highlight the evidence which supports the verdict they seek from the jury.
Attorneys often present a theory of what happened and use the evidence to support each step of the process.
The jury is sworn in and then isolated, and in private, will review the evidence, argue interpretations, and hopefully decide on what the final verdict should be.
Deliberations can be a very short process if the case is straightforward, or it can be incredibly long process if there is a mountain of evidence to peruse and the situations are complex.
Any verdict of guilty must be unanimous. If there is disagreement between the jurors, the judge can instruct jurors to continue to strive to reach a verdict. If there is no real hope of reaching a verdict, the judge can declare a jury hung on one or more of the counts, while entering judgment for any counts on which the jurors all unanimously agreed.
Either side can ask the judge to "poll the jury" to confirm with each juror that the verdict announced was indeed their verdict.
A guilty verdict results in a conviction, and the judge will then order a sentence based on the crimes for which the defendant was found guilty. There is generally a maximum and minimum sentence for each crime.
In death penalty cases, the jury determines whether the sentence is life in prison without parole or execution, following a second trial proceeding in which the defense provides evidence of mitigating factors and the prosecution introduces evidence of aggravating circumstances.
The jury receives death penalty instructions, and there is a second set of closing arguments. The jury must be unanimous for death; if after deliberation even one juror opposes the imposition of the death penalty, the sentence is life imprisonment.