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Legal Article - the Process of a Criminal Case

Dimitry Tsimberg, Esq.

The process of a criminal case


Felony - a crime punishable by one year or more in State Prison. Felony cases begin in lower courts and then can be bound over to Superior Court, if the judge determines that probable cause exists that the defendant has committed the crime in question.

Misdemeanor - crime punishable by up to a year in county jail. Misdemeanors are usually handled in lower courts.


A defendant may retain an attorney at any stage of his/her case, whether it is during the investigation or the night before his/her arraignment.

A criminal defendant maintains the right to an attorney and will be appointed one (Public Defender), if they can not afford one. However, criminal defendants may be responsible for paying the costs of the Public Defender, if it is later determined that they had enough money to pay for an attorney.


Pre-arrest investigations are done after the defendant has been contacted by a law enforcement agency, however charges have not been filed yet and the defendant has not been arrested.

This is the best time to hire an attorney to take control and defend the case. During this stage, your attorney can attempt to do the following:

    Prevent filing of charges.
    Reduce charges.
    Assist with surrender and avoid arrest.
    Divert allegations into an informal resolution.


Felonies - Police must have PROBABLE CAUSE to make an arrest, which may be loosely described as a "good reason" to arrest.

Misdemeanors - Arrests can only be made for crimes that occurred while in the presence of the arresting person or with a warrant.

Miranda Warnings - under new cases, the police do not have to read Miranda Warnings to everyone that is arrested. Further, failure to read the Miranda Warnings does not make the arrest illegal, but may provide legal grounds to suppress certain statements or confessions.

BOOKING When a suspect is booked the following occurs:

    The suspect is taken to the law enforcement station.
    The suspect is asked a series of routine questions.
    The suspect is lawfully searched with or without consent.
    The suspect is fingerprinted and photographed.

All felony defendants and most misdemeanor defendants will be required to go to the station for booking.

Getting booking information: Call the jail or prison hotline for booking information. You will need the inmate’s booking number or their date of birth and full name. The jail or prison will release information on the charges, the court date, the arresting agency and the bail amount.


Post-arrest investigations are done after the arrest, but prior to the filing of criminal charges by the prosecutor. It is not required that the arresting agency release the police report before the defendant goes to court. However, sometimes your attorney can talk the police into releasing the report.


The following individuals can file charges:

District Attorney - The District Attorney's Office files charges against an individual, if they believe there is sufficient evidence to convict the suspect.

City Attorney - Some cities have a City Attorney’s Office handling most misdemeanor cases, and they determine if there is sufficient evidence to convict the suspect.

The Probation Department - In Juvenile cases, the probation department is involved in deciding whether or not to charge the defendant.

The Police - do NOT file charges, and only make recommendations to the prosecuting attorney, if charges should be filed.


The prosecuting attorney files a document with the court to show that specific charges are being made against the defendant.


A defendant is almost never arraigned within the first 24 hours of his/her arrest. The police are permitted to hold a suspect for up to 72 hours after the arrest. If you are arrested on the weekend, then you can be held for one more day. For example, if you are taken in on a Thursday before a holiday weekend, you can spend up to four or five days before you see a judge. You can call the booking information line at the jail or the arresting agency to find out your arraignment date.

At the arraignment, the defendant will be read his/her rights and the charges against him/her.

BAIL is set during the arraignment. Bail is an "insurance policy" that the defendant will appear before the court for his/her trial. Generally, the amount of bail is set by the seriousness of the offense. Bail is within the discretion of the Judge. Bail can be $0, if the person is released "on their own recognizance (O.R.)", but it can be increased if the Judge feels that the defendant will not appear in court again. If the person fails to appear before the court, a warrant will be issued for his/her arrest.

During the arraignment or any proceeding in front of the court, the attorney can bring a motion to reduce bail. The judge must then decide whether to reduce bail and will consider the defendant's risk of flight (from the jurisdiction before trial) and the danger posed to the public. In a felony case, if the attorney asks for an O.R. release, the court will most likely set the matter for an O.R. hearing and order an O.R. report on the defendant. This process usually takes a week.

PLEA - At the arraignment, the defendant will also answer to the charges by pleading not guilty, guilty or no contest.

Guilty Plea - means you are admitting guilt on all charges filed against you, and letting the Judge decide what punishment to award (under established guidelines).

No Contest - also known as "nolo contendere," it is exactly the same as a guilty plea, but it cannot be used against you in a civil case (if you get sued by the victim for the crime).

Not Guilty - means you claim that you are not guilty beyond a reasonable doubt (which the prosecution must prove), and you request a trial to determine your guilt. There is no such thing as an "innocent" plea.

At the Superior Court arraignment, the amount of bail is reviewed, which may be increased or decreased at the court's discretion.

Special appearances occur when an attorney appears in court to ask for a continuance because he/she has not yet been retained by the defendant and the attorney has not been able to prepare their defense. Special appearances can only be made at the first appearance/arraignment.

DISCOVERY is given to the defense attorney at the arraignment, Discovery includes, but is not limited to: police reports, medical records, probation reports, photographs, diagrams and viewing of physical evidence.

Discovery in criminal cases must be reciprocal, which means that the prosecution and the defense must provide to each other the evidence they are using in the case. Neither the prosecution nor the defense may "hide" evidence and later introduce it during the trial.


Preliminary hearings only occur in cases involving felony offenses. In most states, a preliminary hearing is necessary for the Judge to determine whether there is sufficient evidence or probable cause to support the charges against a defendant and "bind the case" over for trial. During a preliminary hearing, the District Attorney or the Judge can add additional charges and request that the defendant back into custody even if they are already out on bail.


At the pre-trial conference, the defense attorney plea-bargains with the prosecuting attorney, a process in which the defense attorney negotiates with the prosecution in order to obtain the best possible "deal" or plea for his/her client.

A "deal" might include:

    The prosecution charges the defendant with a lesser charge.
    The prosecution agrees to a lesser punishment for the same charge.
    The number of counts may be dropped. Alternative sentencing.

Defense Attorneys may also file Pre-Trial Motions, which may assist in dismissing charges or changing the prosecution’s position. Some common motions are:

    Motion to Suppress Evidence
    Motion to Dismiss the Information
    Motion for a Speedy Trial
    Motion to Sever Counts
    Motion to Compel Discovery


After a jury has been selected and the trial actually begins, both the defense attorney and the prosecuting attorney complete the following process:

    Opening statements.
    Direct examinations of their witnesses.
    Cross examinations of the opposing witnesses.
    Closing arguments.

During the deliberation of the case, the jury decides the guilt or innocence of the defendant. If the defendant is found guilty of a criminal charge, it is the responsibility of the judge to determine the sentence that will be imposed.

Upon a guilty verdict, a motion for New Trial might be filed with the court.


Sentencing is a court hearing where the judge determines punishment.

A defendant may be sentenced to Probation instead of prison. However, he/she may be ordered to do some local custody time as a term of his or her probation. If a person violates his/her probation, the original charges may be reinstated and he/she may be incarcerated.

Formal probation is when an individual is supervised by a probation officer. Informal or summary probation is unsupervised. If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the low term, mid term, and high term. Lawyers argue about the proper term based on the facts of the particular case. The final word is within the judge’s broad discretion.

Sentencing modifications occur when part of a person's sentence becomes inapplicable to their case. For example, suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to "modify" the man's sentence.

Some alternatives to jail that might be negotiated are:

    Detox Programs
    Electronic Home Monitoring
    Residential Treatment Centers
    Weekend Work Programs
    Community Service


In addition to any sentence imposed by the court, a conviction can have a number of independent consequences. In felony cases, these consequences can be severe and include:

    Loss of the right to vote.
    Loss of the right to possess a firearm of any kind.
    Loss of the right to associate with known criminals.
    Registration as a sex offender.
    Increased penalties ("strikes") for future criminal convictions.
    Registration as a narcotics offender.
    Deportation, if non-citizen


If convicted, a defendant may file an appeal. The purpose of an appeal is to ensure that the trial court did not make any legal errors throughout the trial process. Appeals may result in the reversal of a person's trial court conviction.


A conditional release from prison entitles a person receiving it to serve the remainder of his/her term outside of prison, but technically the person will still be under the Department of Corrections. Typical conditions of parole can include:

    Periodic meetings with parole officers.
    Foregoing the possession of weapons and not associating with known criminals.

Expungement is a process where, in some cases (including felonies or misdemeanors), a person's conviction may be removed from his/her record. An expungement cannot be done if the person has served time in state prison.

This post is for educational and information purposes only. It is not legal advice on any particular case, and merely a general opinion of one California lawyer. You should not rely on it without consulting a competent attorney in your area about your specific case and facts. It is not intended to, and shall not, create an attorney-client relationship. So, be happy you got some free info and use your grey matter!

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