The criminal process begins when law enforcement suspects you are engaged in criminal activity or have committed a crime. Police officers and detectives investigate crimes that are reported to their departments usually via 911 emergency calls. Except for traffic and driving under the influence (DUI) cases, the majority of crimes [murder, manslaughter, shootings, stabbings, fights, hit & runs, thefts, drug possession & sales, violent crimes, domestic crimes, assault & battery, rape, child molest, sex crimes, animal cruelty] are not committed in the officer’s presence.
In addition, police officers can detain you if they have reasonable suspicion based upon articulable [specific] facts that you are committing a crime in their presence. A prime example is a vehicle traffic stop by an officer to issue a citation for speeding or to determine if the driver is driving under the influence of alcohol or drugs (DUI) due to some observed violation of the vehicle code. A person is not free to leave when being detained by law enforcement but the detention must be no longer than necessary to handle the reason for the stop, i.e. to issue a citation. Remember, a “consensual encounter” is different than a detention and you are free to walk away from an officer or leave the area if the police contact is only a consensual encounter.
If you are under investigation by law enforcement for a crime that was reported you do not have to participate or cooperate in their investigation. Neither do your family or friends. Law enforcement investigation techniques can include audio and video surveillance, pretext calls, wiretaps, under cover operations and good old fashioned interviews to obtain statements, admissions and or confessions. An officer or detective may call you on the phone, show up at your home or work, or meet you in a public place to talk to you. They will ask you to provide a statement or to just give your “side of the story”-DON’T TALK and invoke your rights!
Politely tell the detective or officer that you are invoking your right to remain silent and your right to have an attorney present under the 5th and 6th Amendments. Also, please see my link to the “Invocation of Rights” form that you can print, sign and hand to any and all law enforcement personnel who contact you during a criminal investigation. Again, DON’T TALK or give a statement to law enforcement even if they tell you that “you are not a suspect”, “we won’t arrest you” or “we will let you go home today!” Law enforcement officers can lie, fabricate and or use “ruses” to get you to volunteer information or make a damaging statement. For example, how do you explain that we found your finger prints inside the burglarized home? When your prints were never found!
You will be arrested and most likely searched if “probable cause” exists that you have committed a crime. Your vehicle and the immediate area can also be searched incident to this arrest. Once arrested the officer will handcuff you and put you in the back of his patrol unit to transport you to the local police station. On the way to the station or at the station the officer will read you your “Miranda Rights” or “Miranda Warnings”:
- You have the right to remain silent;
- Anything you say can and will used against you in a court of law;
- You have the right to an attorney; and
- If you cannot afford an attorney, one will be appointed to represent you.
The officer will then ask you if you understand these rights to which you should respond “yes.” Then the officer will ask you something similar to, “with these rights in mind will you talk to us?” Your answer will be “NO,” not without my lawyer. Miranda Rights or “warnings” are not always given and are only required to be read to the arrestee if the arresting officer is going to ask you questions while you are in custody [custodial interrogation]. Accordingly, the rights do not protect you if you volunteer information or blurt out any statements that are not in response to a question.
Depending on the charge you will either be issued a citation on your promise to appear in court or booked into county jail where you will stay unless you bail out. The bail amount will be set according to the local bail schedule and will remain at that amount until your first court appearance, the arraignment. [See my BAIL page for information on bail.] Immediately consult with and hire a private criminal defense attorney if you bail out of jail so an investigation and case preparation can be completed before the arraignment. If you are not immediately arrested by the detective or officer, then you may receive a “notify letter” from the prosecutor’s office stating that charges have been filed against you and that you must appear in court on a specific date and time for arraignment. A bench warrant will be issued for your arrest if you fail to appear on or before the court date.
An arraignment occurs within a few days if you are in custody or usually within 30 days if you bail out and are not in custody. The arraignment is a “critical stage” of the criminal process. As such, you are entitled to have a public defender appointed to represent you if you can not retain [hire] your own private criminal defense lawyer. At the arraignment you will be notified of the charges filed against you in a formal misdemeanor or felony complaint. Much of the time, the charges filed by the prosecuting agency are different than the charges you were arrested and or booked into jail on. If you retain a private criminal defense lawyer and your case is filed as a misdemeanor, then he or she can appear for you without you being present at the arraignment. However, your appearance is mandatory if a felony complaint is filed or on certain misdemeanor charges, i.e. domestic violence, spousal abuse.
Your criminal defense attorney will do most of the talking at the arraignment. He or she will inform the judge that their Law Firm has been retained making a general appearance and that you have been advised of your Constitutional Rights. Your lawyer will enter not guilty pleas to the charges and deny any and all special allegations on your behalf. A readiness conference date and a preliminary hearing [felony cases] date will be set. Bail issues will be briefly argued if needed to lower your bail. The judge will consider whether you’re a “flight risk” [ties to the community] and or a “public safety” concern [criminal history/record]. He will then decide to keep bail as set, lower the bail amount or release you on your own recognizance. However, the prosecutor can also request the judge to increase your bail amount at the arraignment. A formal bail review hearing can be scheduled within two days after the arraignment if the judge’s decision is not favorable.
Prior to the readiness conference date, your criminal defense lawyer will provide you with all the police reports and evidence [discovery] the prosecution has in their possession and should meet with you to organize a strategic game plan for the hearing. If your criminal lawyer or public defender does not provide you with a copy of the discovery or meet with you prior to the first readiness conference, then you should hire another lawyer!
At the readiness conference, your attorney will negotiate with the prosecutor to dismiss the case or reduce the charges [charge bargaining] and negotiate with the judge to lower the sentence [sentence bargaining]. Simply, the readiness conference is a plea bargaining hearing where both sides, the defense and prosecution, argue with each other and the judge to reach a favorable plea bargain or disposition. Your case will not proceed to a preliminary hearing if it settles at the readiness conference. It’s not uncommon to have more than one readiness conference before going to a preliminary hearing.
On felony cases, a preliminary hearing will take place if the case does not settle at a readiness conference. A judge, after hearing testimony from police officers, witnesses and or alleged victims, will decide whether enough evidence was presented to hold you to answer on the charges in the complaint. Your criminal defense attorney will have the opportunity to cross examine the prosecutor’s witnesses and put on any witnesses to establish an affirmative defense, negate an element of a charge or to attack the credibility of a prosecution witness. The burden on the prosecution at this hearing is not to prove the charges beyond a reasonable doubt as in a jury trial but to show the judge the strong suspicion in the guilt of the accused [you] in the crimes charged- a probable cause standard. At the conclusion of the preliminary hearing your attorney may argue that the evidence presented by the prosecutor was insufficient to show that a crime was committed and or that you had something to do with it. You and your lawyer for tactical reasons may decide to waive your right to a preliminary hearing and not have one.
POST PRELIM ARRAIGNMENT & PRETRIAL CONFERENCE
The prosecutor will file a felony Information containing the charges the judge held you to answer [bound over] on at the preliminary hearing. This post preliminary hearing arraignment is now usually done immediately after the preliminary hearing where the prosecutor will ask the judge to deem the felony complaint an “information” on the charges the judge found probable cause. Your criminal defense lawyer will “arraign” you on the charges similarly to the first court appearance entering pleas of not guilty on all counts and denials of all special allegations. Future dates will be set for readiness conferences, motion cutoff and trial. From this date up to trial, your defense lawyer will discuss your case and continue to negotiate on your behalf with the prosecutors and judges at pretrial conferences in an effort to resolve your case. This may include a less serious charge, an agreement on a lesser punishment and or dismissing some of the charges in the information. Each case is different and has its own strengths, weaknesses and tactical strategies to negotiate.
Eventually, a trial will commence if your case does not settle. In misdemeanor cases you have a speedy trial right to be brought to trial in either 30 or 45 days if you do not waive time for trial. Similarly, in felony cases you have a speedy trial right to go to trial within 60days of your second arraignment. At trial, a jury pool of community members will be empanelled of which the prosecutor and your criminal defense lawyer will do their best to select twelve impartial jurors through the Voir Dire process. The trial can last from one day to numerous months depending on the charges and consists of pre trial motions, opening statements, witness & expert testimony, evidence introduction, cross-examination and closing arguments. The prosecution has the burden to prove to all twelve jurors unanimously that you are guilty beyond a reasonable doubt as to each charge.
The jury will find you not guilty if the prosecution fails to meet this high evidentiary burden. As a criminal defendant, you have the presumption of innocence and do not have to prove you are not guilty! A mistrial is declared by the judge if the jury is deadlocked and can not reach a unanimous decision. Your case is then usually dismissed or settled for a much lesser charge and or sentence. Unfortunately, the prosecution has the option of retrying the case when a mistrial is declared and the judge won’t dismiss it!
If you plead guilty to a charge or the jury convicted you of a charge, then you will be sentenced. On misdemeanor cases sentencing usually occurs at the time your criminal defense lawyer settles your case. The judge will place you on informal court probation and impose various terms and conditions depending on the crime which now includes draconian fines! For example, DUI fines are now over $2,000.00. On felony cases, a sentencing hearing is set out about 30 days, or more if you waive time, so the probation department can prepare a sentencing report and recommendation to the judge. At the hearing, unless it was a stipulated disposition, your lawyer will argue for the lowest punishment and most likely, the prosecution will argue for the maximum punishment. The judge will either put you on formal probation with the probation department and may impose up to one year in local jail or sentence you to state prison. Other sentencing alternatives include residential drug programs, counseling programs, work furlough and release programs and community service. Sentencing conditions are in the wide discretion of the judge and will not be disturbed on appeal unless they are not reasonably related to the crime.
A motion to withdraw your guilty plea and motion for new trial can be filed by your criminal defense lawyer to set aside the conviction. Many times, defendants are not adequately informed by their inexperienced lawyers before accepting a guilty plea and or are not adequately advised of the sentencing consequences. For example, by not advising a client that the DMV will suspend or revoke their driving privilege for one year based upon their court conviction. Collateral consequences that may be imposed by a judge can include registration as a sex offender, gang member and narcotic user.
Likewise, a new trial motion requests the judge to set aside the conviction and set a new trial based upon errors that occurred during trial including improper admission or exclusion of evidence or misconduct on the prosecutor. In addition, your defense attorney can file a Notice of Appeal to appeal your conviction to a higher court [Appellate] on many basis including denial of due process of law; trial judge made legal evidentiary errors during trial or gave improper jury instructions to the jury, and or sentencing errors, just to name a few.
MODIFICATIONS, REDUCTIONS AND EXPUNGEMENTS
Your criminal defense lawyer may also request the judge to modify your terms and conditions of probation. Usually, if you have complied with probation for a length of time and you can no longer fulfill a condition of probation due to changed circumstances your lawyer may convince the judge to either modify the term or terminate it entirely as a condition of probation. Also, if you complete probation your attorney can file a motion to request the judge to reduce your felony conviction to a misdemeanor, if applicable, and then “expunge” the conviction off your record. An expungement dismisses the charges and can be extremely beneficial for those seeking employment!
If you are sentenced to prison and are conditionally released, you will be under the authority of the Department of Corrections on parole under the supervision of a parole officer. Parole terms vary from 4 years up to life depending on the crime you were convicted. Parole terms can also be modified or deleted if they are not reasonably or related to the crime.
Each and every jurisdiction has a slightly different criminal process depending on many factors and whether your case is filed as misdemeanor or felony. Please contact my firm and talk with a knowledgeable criminal defense attorney who is familiar with the particular jurisdiction of your case and who is committed to excellence in aggressively protecting your interests and constitutional rights.