Criminal Process

When someone has been harmed by the actions of another, it can rise to criminal conduct if it was done with intent to commit an illegal act or to inflict harm on the victim. However, not every apparent criminal act is prosecuted for a variety of reasons, foremost being a lack of evidence to convict the alleged perpetrator. A prosecutor must weigh whether the evidence at hand is sufficient to convict the accused on all elements of the offense by the standard of beyond a reasonable doubt.

District Attorney’s Role

A prosecutor is presumably obligated to pursue justice and the truth without influence from the victim, media or community. The prosecutor also has a duty to protect victims from undue harm and to protect their rights as well as to hold the guilty accountable. Such decisions are not always so apparent.

There are a number of factors that a prosecutor considers in whether to bring charges:Doubts about the evidence supporting the accused’s guilt;The adequacy of incriminating evidence or whether it is admissible;

Any of these factors alone, or in combination, can be persuasive in whether a prosecutor will decide to bring charges or not.

Defense Attorney’s Role

Retaining an attorney following an arrest and before charges are filed is a sound idea. If you feel that charges are imminent and have not yet been arrested, then promptly meeting with your attorney is equally as important. Your lawyer will need to know as much as possible about your situation, the basis of the potential charges that you face and the evidence supporting them before meeting with the prosecutor handling your case.

In some cases, arrests are made based on faulty identification or the ulterior motives of someone like an estranged spouse or intimate partner. Misunderstandings are not uncommon. Still, going to speak to a prosecutor alone is never a good idea. They may not be willing to speak to you anyway unless you are represented and accompanied by counsel.

If you have an alibi and can prove you were elsewhere at the time of the crime, your attorney can corroborate this and then schedule a meeting with the prosecutor to discuss. You might use this tactic if you can demonstrate that an accuser is mentally unsound or has a motive for alleging you committed some wrongdoing and the evidence is not credible or cannot be corroborated.

For other matters, intervening early and offering to plea to charges being contemplated might be preferable if there is a real possibility the prosecutor could bring additional and more serious charges should you plead not guilty and proceed to further stages in the criminal process. Prosecutors do have limited resources and their goal is to seek convictions if the facts and circumstances warrant it. If you plead out early, the prosecution can report it has a conviction and use its limited resources to focus on other possible perpetrators or crimes.

The penalties for a criminal offense are generally found in the criminal code but the sentence that a judge imposes can vary widely depending on a number of factors. Having a criminal attorney who is intimately familiar with the facts and circumstances of your case, your background, nature of the offense and the court where your case is venued is vital to knowing what you are facing, what defenses are available to you and the steps to obtain a satisfactory resolution.

Many sentences can be enhanced by aggravating factors or lessened by those in mitigation. Aggravating factors include severe physical harm to a victim, having a prior felony conviction, use of a firearm or age of the victim. Mitigating factors include a defendant who was abused as a child or by a spouse, the presence of an emotional disorder, the lack of previous criminal conduct or lack of substantial involvement in the crime, all of which must be timely and adequately presented in court. You may need to introduce certain evidence or even an expert to support your argument for mitigating your culpability that your attorney can locate and prepare for your defense.

In some cases, your attorney can present alternative sentencing options for which you qualify wherein your charges can be dismissed so that you will not have a criminal record if you successfully complete all court-ordered conditions.

In matters where you are accused of a sex crime, a conviction or plea can lead to your registering as a sex offender for life. If you are an immigrant, you face possible deportation if you plead to an offense without fully understanding the consequences. In many of these cases, these consequences can be avoided by a competent and skilled attorney.

As indicated above, pre-trial discovery and preparation is key in most cases. Your attorney or a trained investigator can visit the crime scene, examine the evidence against you and interview prosecution witnesses. It is not unusual for a savvy investigator to obtain a witness statement where the person’s recollection of events is not so clear and reasonable doubt established. Also, the courts have deadlines for presenting motions regarding the introduction or exclusion or certain evidence that must also be presented in a certain form.

Finally, a prosecutor will take your case more seriously if you have a seasoned and established criminal defense attorney representing you. You have more opportunity for a reasonable disposition of your case, including dismissal, a plea to a lesser charge, an alternative sentence or one where jail or prison time is suspended.

Public Defender vs. Private Attorney

Many public defenders are excellent and hard-working attorneys who are respected by the prosecutors and judges with whom they work daily. However, most public defenders have overwhelming caseloads that prevent them from giving their clients the time and attention that private counsel can provide.

Public defenders are under pressure to move or reduce their caseload since they receive new cases on a weekly or even daily basis. Accordingly, their attention is on those matters that have the best opportunity for dismissal or that require increased focus given the nature of the crime, its victim or its notoriety. These cases get the benefit of the limited resources most public defender offices are forced to contend with.

Also, many of these lawyers are freshly out of law school and lack the skills, knowledge and respect of judges or prosecutors that private counsel can usually offer to any defendant.

On the other hand, many private criminal defense attorneys were once public defenders or even prosecutors who have years of experience from handling all types of cases and defendants. They often have the resources lacking in many public defender offices that are needed to adequately defend you. This includes experienced investigators and researchers, experts who can examine blood, alcohol or drug tests, fingerprints and other evidence in a case that may be used to incriminate you.

Private attorneys also have the time to meet with you, answer your questions and concerns and to focus on your case. You also have a choice when it comes to retaining an attorney with whom you are comfortable, is highly experienced and recommended and in whom you place your trust to do the best job possible.

Steps in a Criminal Case

Arraignment

After you’ve been arrested for a crime in this state, your first formal court appearance takes place at your arraignment.

An arraignment is usually the first court hearing in a California criminal case. At an arraignment, the accused generally enters a plea (guilty, not guilty, or no contest), the issue of bail and release is determined, and a future court date is set (usually for the pretrial or, in a felony case, the preliminary hearing)

The arraignment hearing takes place once the prosecuting agency (typically the local District Attorney’s office) has filed formal charges. When the arraignment takes place is strictly regulated according to California law.

Felony

There are actually two arraignment hearings in the lifespan of a California felony case. One occurs at the very start of criminal proceedings. The second happens after the preliminary hearing…if the result of that hearing is to hold the defendant to answer on the charges.

If you committed an offense that requires you to remain in “custody” (that is, in jail), you must be arraigned within 48 hours of your arrest, not including weekends and holidays. This time frame establishes the maximum amount of time the police and prosecutors have to place you before a judge.

If you are being arraigned on a felony complaint that doesn’t require you to remain in custody.that is, you were released following your arrest, or you bailed out, you must be arraigned “without unnecessary delay”, in reality, however, if you’re out of custody, it may be weeks or even months before your arraignment.

Misdemeanor

The 48-hour rule applies to all crimes that require you to remain in custody, regardless of whether they are felonies or misdemeanors. That said, most defendants are released following a misdemeanor arrest.

When this is the case, you will not be arraigned for at least ten days following your arrest.

If you were arrested for a misdemeanor, you are typically permitted to have your attorney appear on your behalf. However, there are some exceptions, the most common of which include California domestic violence charges, alleged violations of a protective order, and certain aggravated offenses involving driving under the influence (DUI), such as Vehicle Code 23153 VC California’s “DUI causing injury” law or Penal Code 191.5(b) PC California’s “vehicular manslaughter while intoxicated law”.

Preliminary Hearing

If you entered a not guilty plea at the arraignment, the court under California Penal Code Section 859b must schedule a preliminary hearing within 10 days of the arraignment although most defendants, through their attorneys, can and will waive this time or the court may do so for good cause.

The preliminary hearing is held before a judge only. There are only two issues that a judge considers at the hearing:

Probable cause is a term of art. To establish probable cause, the evidence must only show that there are enough facts to convince a reasonable person that the crime occurred and that you are the culprit. In California, it is defined as “a state of facts that would lean a man of ordinary care and prudence to believe and consciously entertain an honest and strong suspicion that the person is guilty of a crime.”

You are permitted to waive the preliminary hearing and proceed directly to trial. There are strategic reasons why you or your attorney might consider such a tactic, like:

The most prevalent outcome of a preliminary hearing is that the judge finds probable cause to charge you. If so, then you will be held to answer for the charges and the matter is transferred within the next 15 days to trial court for all further proceedings.

Trial

Jury Selection

Jury selection has been referred to as a science and there are experts that defense lawyers and prosecutors use in assisting them in selecting a jury that is more favorable to their respective positions.

In a misdemeanor or felony matter, you are entitled to a jury trial of 12 people. These individuals are drawn from a pool of persons who reside in the community or jurisdiction where the trial is being held who are at least 18 years of age and eligible to vote.

Opening Statements

Once the jury is selected, the attorneys make their opening statements with the prosecution leading off. The prosecution will state what the case is about and what it plans to prove, what evidence will be introduced and what certain witnesses will testify about. No evidence may be introduced during opening statements and whatever either attorney states is not considered evidence.

The burden of proving you guilty in a criminal case rests solely on the state. It must prove each element of the offense for which you are charged by the standard of beyond a reasonable doubt.

Examining Witnesses

The defense has the opportunity to cross-examine each witness. Your attorney could challenge the victim’s ability to identify the defendant who may have been wearing a mask or point out that her initial description of the defendant did not match certain facial, voice, height and weight characteristics of the defendant. In regards to the weapon, the victim may have given only a generic description such as that it was a handgun but told police that the gun was the one the defendant had at the time of the crime.

In the majority of criminal cases, the defendant does not testify in his or her defense. The main reason is that the defendant has a prior felony conviction that can be used to impeach credibility. Also, many prosecutors are very capable at cross-examining defendants who may have made prior statements that are inconsistent with their testimony on the witness stand.

If the defense does introduce evidence, the prosecution has a right after the defense rests to introduce rebuttal evidence or testimony. This can be a new witness to rebut or contradict whatever a defense witness testified to or other evidence that was not introduced. A witness who testified earlier could provide new testimony that contradicts a defense witness. For instance, the prosecution may introduce a witness to rebut the alibi defense.

Rebuttal evidence is not that common and if introduced, is typically short.

Closing Arguments

After the defense rests and rebuttal evidence, if any, is introduced, the attorneys present their closing arguments. These differ from the opening statements in that the attorneys argue their respective positions, summarizing what the witnesses testified to, what the evidence demonstrated or supported or not and that the burden of proof was either met or not. The state or prosecution is the first to present its arguments.

Verdict

Other than waiting for the trial to begin, jury deliberation is the most agonizing part of the trial process. Attorneys for both sides can often intuit what the verdict will be but in many cases, the lawyers and defendants are not so confident and simply hope that the jury will agree with their arguments and see the facts and evidence as they presented them.

Should the defendant be found guilty, then he or she may be immediately placed in custody though not in all cases. A judge may sentence a defendant the same day or schedule the sentencing for another day while the defendant remains free on bail or bond or in custody.

A jury can also find the defendant guilty of a lesser-included offense. This may be a crime that is included in the offense charged or can be an attempt to commit the offense. For example, a defendant charged with first degree homicide may be found guilty of manslaughter instead.

If the jury votes to acquit the defendant, he or she is immediately released from the court’s authority or jurisdiction and is free to go home.

Sentencing

Sentencing after a guilty verdict may be immediate or left to a later date for a hearing.

If convicted of a felony in some cases, the court can grant a suspended sentence and impose probation in lieu or prison or county jail time. If convicted and probation is not granted, you are subject to California’s Criminal Justice Realignment Act of 2011.

Certain crimes are specified as coming under PC 1170(h). These are non-violent crimes and non-sex offenses. If you are convicted of a felony subject to this code section and probation is denied, you must be sentenced to county jail and not state prison. This is significant in that your offense may be expunged after your sentence is completed. You may also receive a split sentence whereby part of your sentence is served in county jail and the remainder under supervised probation.

For violent crimes that qualify as a strike or sex-related offenses for which you are required to register as a sex offender, or for convictions for which there is an enhancement, you will serve your time in state prison.