The Criminal Process

THE ACT

Before anyone accuses you of a crime, there must be some act. But that act can sometimes be confusing. It can also be open to differing interpretations. For example: A person becomes furious at someone else due to some disagreement between them. In a moment of exasperation, he phones the other person and unloads. He shouts violent threats and says things he later regrets. Did he “act”? Some would say no. But under the law of Penal Code §422, the he committed a “Criminal Threat”—if the person on the other end of the phone line felt actual fear and that fear was sustained for some period of time.

Regardless of the legal requirement, there must be some act (either verbal or physical) before you are accused of something that may or may not be a crime.

THE ACCUSATION

The criminal justice process begins the moment the authorities are notified of an alleged illegal act. This can be accomplished by a citizen complaint, a police investigation, or a crime witnessed while in progress. Therefore, the accuser is not always the victim, but there must be some accusation of criminal behavior. For example, in the case of a drug sale, the buyer and seller are willingly committing the act and there is no “technical” victim calling the police about it. But if it’s done in the presence of law enforcement (or if they are aware of it), then the police agency will be the accuser and the case will proceed.

PROBABLE CAUSE

Lawyers define “probable cause” differently, but the general idea is that you may be detained and arrested if there is some set of facts or circumstances that allow an officer — in good faith — to reasonably believe you have committed a crime. The officer has the authority to detain you for further questioning, investigation, or formal arrest. Notice that the language of probable cause does not include “beyond a reasonable doubt”. The reason for this is because the reasonable doubt standard is reserved for convictions and not arrests. Therefore, you can be arrested and charged on evidence that does not rise to the level of a conviction.

RIGHTS AT ARREST

If the officer decides to arrest you, you have certain constitutional rights that are guaranteed to protect you from overreaching by law enforcement or the government. Those rights include the right to remain silent, because anything you say can and will indeed be used against you, and the right to an attorney. These rights are often referred to as your Miranda Rights — designed to protect you from saying something out of fear or panic or naivety because of what’s happening to you. What do you do when you are arrested then? Should you tell the police what’s going on so that you get a chance to fill them in? It’s more likely to be in your interest to be polite and to invoke your right to remain silent and to request to speak to an attorney. Based on such a response, law enforcement is required to refrain from asking you any incriminating questions related to the alleged offense.

BAIL

Depending on what day you are arrested on, you may be held in jail for as little as one day, or up to as many as four. The reason for this is because the Detention Release Officer has determined that you are not fit to be release on your own recognizance (O.R.) and that you have to post bail to be released. Posting bail essentially means you must put up money as a promise that you will appear in court on the date of your arraignment. The more serious the criminal charge, the higher the bail amount will be.

The vast majority of people use a bail bonds company to facilitate bail posting. That means you do not have to post the entire amount of your scheduled bail-only 10% of it. Therefore, if your bail is $100,000, you would give a bail bonds company $10,000 and they will put up the rest of that money and will be held responsible for bringing you to court.

If you were to miss your court date or chose not to come, you would forfeit (or give up) the amount you paid to the bail bonds company and you would be subject to a court issued bench warrant.

ARRAIGNMENT

Your first court date is for your arraignment. This is when the court requires you to enter a plea. With an attorney, you will have full knowledge of your offenses, what type of punishment you are likely to be facing, the circumstances of the arrest (via a police report), and you will have a general idea as to how your case is likely to proceed.

There are certain rights you have on the date of your arraignment as well. First, you may have the right to have a jury trial within 45 days of your arraignment if you are charged with a misdemeanor and you are out of custody. For felonies, you would have the right to have a preliminary hearing within 10 days.

It is considered wise to waive (give up) those statutory rights in order to give your attorney sufficient time to either mount a defense and/or gather evidence on your behalf.

PRE-TRIAL CONFERENCES

Orange County ordinarily conducts “pre-trials” before the jury trial is scheduled. These are days designated as status conferences between your lawyer and the district attorney to either negotiate, schedule the trial, exchange evidence, or argue the merits of the case right there in the courtroom. Most cases settle at the pre-trial stage of a case because both sides (the defense and prosecution) have had enough time to gather documents, evidence, or witnesses to make an appropriate recommendation of how the charges should be resolved.

Pre-trial conferences can be complex depending on the case, and they can take a great deal of time in the courtroom conference rooms. Your case can be negotiated by your lawyer and worked on while you are going about your daily activities.

Many people hold the misconception that they have to go to court every single time there is a date scheduled on the case. That is generally not necessary. However, there are some circumstances where the defendant is indeed required to appear on specific dates for specific reasons.

MOTION HEARINGS

Between your arraignment and your jury trial, there may be some motion hearings scheduled to resolve some legal issues. One such hearing is a “suppression hearing”. If applicable, your lawyer will have filed a motion to suppress evidence obtained in your case for some violation of your privacy. Thus, to obtain evidence that incriminates you in a way that violates your constitutional rights is illegal. The remedy for obtaining that evidence is that it cannot be used against you. In some cases, this results in the total dismissal of the case because of insufficient evidence. Other hearings involve battling legal issues such as the appropriateness of the charges, the inclusion or exclusion of sentence enhancements, and probation violations that are pending at the same time as that of the current case.

JURY TRIAL

Where less than 5% of criminal cases reach this level, it can nevertheless be a very involved experience. Jury trials can be as short as one day or as long as one year. Most criminal jury trials last between 2-5 days depending on the charges. The following explains why trials take so long. Evidentiary Hearing: Before any witness takes the stand or either lawyer argues in front of the jury, there is a preliminary factual determination of legal issues before the judge. This hearing is called a “402″ or an “evidentiary hearing”. The judge must make a decision before the trial begins on whether or not some types of evidence should be included or excluded. The list of issues can be lengthy, but your lawyer will probably invest half to the entire day in this hearing.

Jury Selection: After the evidentiary issues are settled, the lawyers engage in jury selection which is called Voir Dire. This is Latin for “to speak the truth”. At this stage, the judge wishes to know whether or not the potential jurors will be fair to both sides and whether the case they will hear is going to be right for them given their personal life experiences. Once this stage is over, you will be left with 12 jurors who will hear the case with 1 to 3 alternate jurors in case any one of the original 12 is unable to participate in the trial.

Opening Statements: After the jury is selected, both lawyers will give opening statements. The prosecution (the District Attorney) opens with the case against you. After they are finished, the defense has the option to give their opening or to reserve until after the prosecution rests with their witnesses.

Prosecution’s Case: Once the opening statements are completed, the prosecution’s “case in chief” begins with their witnesses. Every witness is first questioned by the prosecutor. Under the 6th Amendment of the United States and California constitutions, the defense has the right to cross examine every witness that the prosecution presents. Usually, every witness of the prosecution will be examined by your attorney.

Defense’s Case: If the prosecution has rested, the defense lawyer either opens with their statements of the case or presents their first witness. Just as before, however, for each witness that your attorney presents, the prosecution may cross-examine them as well.

Closing Arguments: After all the witnesses have been presented and cross-examined, each lawyer argues to the jury what they believe the evidence shows and how the jury should vote on their verdict. For a conviction to result for the prosecution (a “guilty verdict”), all 12 of the jurors must vote guilty against the defendant where the evidence convinced them that he or she is guilty “beyond a reasonable doubt”. For an acquittal to occur (a “not guilty verdict”), all 12 of the jurors must vote not guilty. Anything in between where all 12 jurors cannot agree on a verdict is deemed a “hung jury” and is considered a “mistrial”. Depending on the split of the votes, some judges require a separate hearing to either reschedule the case for a new trial or decide to dismiss the case entirely.

SENTENCING

In the case of a guilty verdict, the court schedules a sentencing date for the defendant to determine the appropriate sentence. This requires that the probation department draft a report that includes the defendant’s personal history, prior criminal history (if any), the circumstances of the case such as the evidence and seriousness of the crime, and makes a final determination as to what would be the right level of punishment. Once the case returns for sentencing, the court allows the prosecution and defense attorneys to argue whether or not either side agrees or disagrees with the probation department recommendation. The court makes the final determination as to either side with the probation department, the prosecution, or the defense.

PROBATION

Most cases end in probation. That means that instead of giving the defendant the absolute highest possible sentence available, the court instead gives the defendant either jail time, community service, or some kind of treatment program. But in the case the defendant violates probation (does something that goes against the courts orders); the court retains the right to impose additional punishment. Probation ordinarily lasts 3 to 5 years. For misdemeanors, probation is called “informal”. That means the defendant does not have to answer to a probation officer. For felonies, probation is called “formal” where the department designates an actual probation officer to the defendant to keep constant contact and review of their behavior.

PROBATION VIOLATION

Once a person is deemed a probationer, the court considers that person as not having the same rights as anyone else. For example, a verbal argument at a parking lot between someone on probation and some other person could escalate to the police being called. Once the police arrive, the person on probation does not have the right to be free from search and seizure. That means that to search another person, police have to have probable cause to search them, otherwise it’s a violation of the person’s right to privacy. But for a probationer, police have the right to search them with or without probable cause.

This is why being on probation is considered a highly vulnerable situation. You may be found in violation of probation whether or not your acts rise to the level of “beyond a reasonable doubt”. Therefore, for a public offense described above, a probationer may receive additional community service, jail time, or court fines for simply getting in to trouble.

EXPUNGEMENT

Once your probation has been completed, or if your lawyer petitions the court to end your probation early, you may consider expunging your record. This means that the court grants your petition to end your probation and/or expunge it, the guilty conviction is withdrawn, and a “not guilty” is put in its place instead. Finally, the case is dismissed. To make an appropriate argument to expunge your conviction, it is recommended you have a defense lawyer file your petition and handle the case.