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.
RETAINING AN ATTORNEY
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.
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"
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
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.
DECISION TO CHARGE
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
FILING THE COMPLAINT
The prosecuting attorney files a document with
the court to show that specific charges are being made against the
ARRAIGNMENT / FIRST APPEARANCE
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
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
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
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
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
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:
Direct examinations of their witnesses.
Cross examinations of the opposing witnesses.
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
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
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
Electronic Home Monitoring
Residential Treatment Centers
Weekend Work Programs
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
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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