1. The Act
When speaking of crimes, there is always something someone had to do or fail to do. Having that said, people sometimes disagree as to what constitutes an “act”. Defense, prosecution, jury, and every day people can disagree on what this means. One example can be the following: A man becomes angry with another man for whatever reason you may think of. In his fit of anger, he calls the other guy and releases a slew of obscenities. Some of what he said could be interpreted as threats–yet they are statements he later regrets. Reasonable minds could disagree that what this man did was act. To some, what this man did was commit a violation of Penal Code Section 422, also known as a “Criminal Threat”. If the other man were to remain in a state of sustained fear for a considerable amount of time, this will have fulfilled a critical element (“ingredient”) in the crime.
Considering that this is an essential piece of the criminal charge puzzle, the evidence that supports or brings doubt to the act should not be underestimated.
Some would say that the “system” gets involved as soon as someone notifies authorities. The accuser, the officer who witnesses the act, or even a large-scale investigation can qualify for this segment of the process. There is no rhyme or reason as to how often the victim themselves make the report or not. Some good samaritans who have the highest of intentions can notify law enforcement to “look into” something just to be on the safe side. Thus, without knowing it, they too can be an accuser. When dealing with drug sale cases, neither the buyer or seller are considered “victims”. Done under surveillance or within the observations of the authorities, the accuser becomes the investigator or officers involved.
3. Probable Cause
Before anyone can be arrested or searched, there must be some set of facts or circumstances that would lead an ordinary person to believe in good faith that a crime has been or is being committed. Probable cause, therefore, is the legal principle that gives police officers the authority to stop you, question you, search you, and even arrest you if their suspicions are validated. Some wonder why the rule does not say that you have to be committing something beyond a reasonable doubt. Almost everyone has heard in some form or manner those legendary American words. But that is the standard that is needed to convict someone of a crime in front of a jury, not to arrest. What this means is that an arrest could occur where probable cause is satisfied. However, once the case proceeds to court, the evidence may not stand up to the “reasonable doubt” standard.
4. Rights at Arrest
While a person is being arrested, the Constitution guarantees rights to the accused so that the government does not have an unfair advantage. The most prominent of those rights during arrest are a person’s Fifth Amendment against self incrimination. Sometimes referred to as the Miranda Rights. Knowing that people can say things out of character, desperation, and pure panic, the United States Courts have established the Miranda Rights warnings to place a person on notice that what they say “CAN AND WILL BE USED AGAINST THEM IN A COURT OF LAW.” Where most people hurt themselves unfortunately, is during this time of their arrest that they say things out of fear. Some blame another person, while others place the blame on themselves so that a family member or loved one will not get in trouble. This becomes evidence. And those statements are sometimes critical to ones case. As a general rule, it is always best to remain polite and composed with police officers when faced with questions that may incriminate the person being questioned. If you are confused or do not want to get in to more trouble than you already are in, it is perfectly acceptable to politely and respectfully decline to answer any more questions without the presence of an attorney. Law enforcement is trained to respect this request as they have been educated on the law of self-incrimination.
If a person is arrested on a given day of the week, say a Friday, that person may not see their first day in court up to as much as 3 days. Detention release officers who work in the jails may not see it as a good idea to release someone based on the level of charge or one’s criminal history. Therefore, that person will have no other choice but to post bail if they want to stay out of jail.
By far, most people utilize the help of a bailbonds person to assist them in getting released. Not everyone has $250,000 dollars to put up as a promise to appear in court. Therefore, they give a bailbondsman 25,000 dollars (or 10% of the bail) and the bailbonds company puts up the remainder 90%.
Failing to come to court after posting bail would forfeit the amount put up. Therefore, it’s a good idea to never miss a court date if you have posted bail.
Your first court date is called the arraignment. On this day, the judge who hears your case wants to know only one thing: do you wish to plead guilty today or not guilty. Some individuals use this day as a reason to explain themselves to the judge or to argue their case. This always turns out bad. Most judges have the patience however to inform the accused that they should direct any questions or inquiries to their attorney.
There are a handful of rights you have on this day. You have the right to a speedy trial. This may mean different things depending on whether or not you are facing a misdemeanor charge or a felony charge.
Most individuals waive (give up) their right to a speedy trial in order to gather evidence, find a lawyer of their own choice, or conduct an investigation of the charges.
Most courts in Southern California, in particular Orange County, conduct what are called “pre-trial conferences”. These are status days where both sides meet and confer to discuss possible resolutions to the case, exchange evidence, argue motions, and to have private “chambers conferences” with the judge overseeing the case in order to move along the progress of the charges. This is where most cases are settled. In many instances, it is the moment where your lawyer begins to use both legal and evidentiary strategies to place their client in the best position possible. Sometimes those efforts go entirely towards finding a reasonable resolution to what can be argued as a “mistake in judgment” on the part of their client. Other times, the attorney’s efforts are focused primarily on fighting the validity of the accusation and charges themselves. All of this is ultimately in preparation for the big show: the jury trial.
Through out the pre-trial portion of the case, there may also be specially scheduled motion hearings. When the defense or the prosecution files a motion with the court, it is most often related to evidence that either needs to be disclosed, suppressed, or given special attention to prior to their being a resolution to the case. For some cases, an effective motion can dismiss the case entirely. In other cases, an effective motion can turn the tide of what was once a weak case into a very strong defense. The list of motions that attorneys can file is very long, so it is beyond the scope of this general criminal process primer.
9. Jury Trial
More than 95% of all criminal cases settle in some form or manner (negotiation, dismissal, charge reduction) without ever going in front of a jury. Most of us grow up watching movies of court scenes where lawyer battle out the case through witness cross-examination and the like. This is by far the fast minority of cases. Once they reach this level however, the workload for the defense lawyer on your case multiplies and the next two to ten days will be stuffed with non-stop strategic preparation for the seven to eight hours a day of litigation. It begins with evidence.
The evidentiary hearing, also known as a “402 hearing” is done outside the presence of the jury to determine which evidence in the case will be left out and which will be included. Some say this is an unfair process since the jury does not hear the entire story. The opinions of the courts and most practitioners is that some information is just not relevant for a jury to hear. Sometimes, the information has nothing to do with the case but has such a damaging or “prejudicial” effect that it would be hard to ignore if ever mentioned. Either way, the judge will have to determine which pieces of the evidence puzzle will be allowed.
10. Jury Selection
: Also known as voir dire, the jury selection process is composed of randomly selected potential jurors that either have time to sit through the trial or not. Many jokes are often made of this part of the criminal justice system. Most people want to find a way to “get out of” having to do it. Some will have the audacity to say some very hurtful and reckless things during this process hoping that someone will kick them out. Curiously, these attempts rarely work. Judges, prosecutors, and defense lawyers have heard almost all the excuses. The truth is however, is that the truth usually is enough. If the case deals with a subject matter that will be very difficult for that person to deal with, all they have to say is that they are not comfortable. Either way, the role of the defense lawyer is to weed out potential jurors that may harbor some kind of a bias against the defendant. Sometimes this is due to race, or the charges, or the fact that there is a criminal trial involving someone is enough to cloud their thinking. Even though this is a natural reaction for most, the challenge is to make sure the jury that will be deciding the case on its merits alone–and not because the juror leans for one side or the other.
Beginning with the prosecution, both sides are allowed to tell the jury what the evidence will show. This is not a time for either side to argue who is right. This is only a time where both sides are allowed to reveal to the jury how they see the evidence and how they believe the evidence will fit into place with the rest of the case.
After opening statements, the prosecution will have the first stab at placing all of their evidence first. This means that all the witnesses and evidence (pictures, videos, graphs, expert testimony) will be placed before the jury to consider whether or not the accusations stick. For every witness however, the defense is allowed to cross-examine them for their veracity to tell the truth, their knowledge or experience in the matter, whether they have a bias or stake in the outcome of the case, and any other issue that is relevant for the jury to consider.
13. Defense’s Case
: The defense then is allowed to put on their own witnesses, including the accused, in order to refute the evidence placed forward by the prosecution. Just as the defense had the right to cross-examine the witnesses of the district attorney, so does the prosecution have the right to cross-examine each and every defense witness. This is also the portion where the defense may introduce their own evidence to support their side of the story.
: sometimes referred to as the climax of a trial, this portion of the case allows both lawyers to argue their case to the fullest extent. Often incorporating stories or examples as a way to convey their points more clearly to jurors, sometimes attorneys will be at their most emotional element. The reason for this is because closing arguments are supposed to be Arguments. As most people understand arguments, one may use raised voices, poignant statements, and every down-right judgments of one piece of evidence versus another. Sometimes lawyers can get carried away with this portion of the trial however, due to the emotional investment they have made into the case, and because it is the last time they may communicate to the jury prior to their decision.
After closing arguments, the jury will deliberate on the evidence. A unanimous verdict (all 12 jurors) is necessary to convict the defendant “beyond a reasonable doubt”. If all the jurors agree that the defendant is “not guilty”, that is an acquittal. If there is any disagreement between all 12 jurors and a verdict cannot be reached, this is considered a hung jury.
If the verdict was a unanimous “guilty” decision, the judge who had conducted the trial will have the final say in what the appropriate punishment will be. The most important facet of this stage is that everything that the defense has presented during the trial will be a factor weighed by the sentencing judge. Thus, every bad and good fact will be considered. This should be the biggest reason to take a case to trial or not to take a case to trial. Where most lawyer make bad decisions is failing to see what evidence will hurt their clients at this portion of the process. If conducted successfully, the sentencing judge will see with the most clearest evidence will assist him or her in giving an appropriate punishment. However, if nothing is presented to the court of the client’s innocence or evidence of mitigation, the judge will have nothing to go on and sentence accordingly.
For serious offenses that involve felonies, the defendant may be sentenced to state prison. These least amount of time a person may be sentenced to prison is 16 months. The most a person may be sentenced is Life without parole. And the most severe form of punishment is the death penalty for the most serious of crimes. All other sentences involved county jail custody (local jail) where the defendant will most likely be incarcerated in the same county as the crime that was committed and charged.
Unless the accused is sent to prison, the most likely sentence will involved some portion of probation. Ordinarily, probation lasts between 1 to 5 years. This is the case for both informal and formal probation. If the case was a misdemeanor, the court will impost informal (or court) probation where no probation officer will be assigned to the defendant. If the trial involved a felony, the court will impose formal probation where there will be a probation officer from the county probation department to oversee and monitor the progress of the accused until the probation period is over. If the defendant were to not fulfill their terms of probation, they will be faced with a probation violation and be called back to court to answer to the violation and face possible further punishment.
One a person becomes a probationer, they are not considered an ordinary citizen in the eyes of the Constitution. Search and seizure usually does not require probable cause from law enforcement. Thus, if a probation officer were to knock on the door of where a probationer lives and there is evidence of some form of illegal activity, they may be arrested on very little suspicion and brought before a judge to answer for why they are not living a law-abiding lifestyle. These violations may range from relatively small offenses (not signing up for a drug class) to a slew of more serious issues (picking up new charges altogether).
The probationer generally has a right to a hearing to determine whether or not a true violation has occurred. The hearing will not be like the jury trial standard of “beyond a reasonable doubt” however. The standard is much lower and does not require as much evidence as that of a jury trial. Therefore, for a probationer to live a law-abiding life during their time on probation requires being extra careful to not risk if the appearance of impropriety.
If the defendant has completed their probation period successfully, the law allows them to petition the court under the Penal Code for what is often referred to as an expungement. What this allows the accused to do is to reverse their guilty plea (or conviction) and enter a “not guilty” plea on the record. Finally, for purposes of the law, the case will be regarded as a dismissal.
A very wide-range misconception exists with regard to expungements however. Some say that the expungement erases or clears their record. Unfortunately, this is not the case. There is nothing that can “erase” or make it look as though a criminal arrest or charge never happened. The benefit to getting an expungement however is that the person by honestly reverse a conviction for living a law abiding life and clear their name. Employers prefer to see a criminal conviction that has been expunged versus one that hasn’t because it shows responsibility for one’s actions.