Criminal Law

STEP 1
The Arrest

When the police arrest someone (the defendant), they take him or her to jail.
Then, 1 of 3 things happens:

• The defendant is released if the prosecutor (usually the district attorney or the city attorney) decides not to file charges; or
• The defendant posts bail (also called a “bond”) or is released based on a promise to appear in court at a later date for arraignment. If either of these happen, the district attorney or police tell the defendant when to come to court for arraignment; or
• The defendant stays in jail. Law enforcement officers transport the defendant to the court for arraignment.

STEP 2
How a Case Starts

• Usually, the police cite or arrest someone and write a report. This report summarizes the events leading up to the arrest or citation and provides witnesses’ names and other relevant information. Defendants generally do NOT have a right to get a copy of the arrest report, but their lawyers do. The reason for this is to protect the identity of witnesses. This is another reason why it is important that a defendant charged with a misdemeanor or felony have a lawyer to represent him or her.
• The prosecutor then decides whether to file charges and, if so, what charges to file. The prosecutor decides whether to charge the crime as a felony or a misdemeanor. The prosecutor can file charges on all of the crimes for which the police arrested the defendant or can decide to file fewer charges or more charges than were included in the arrest report.
• Because defendants have a right to a speedy trial, the prosecutor must generally file charges within 48 hours of the arrest when the defendant is in custody (in jail). Weekends, court holidays, and mandatory court closure days do not count against the 48 hours. Also, the deadline for arraignment depends on what time of the day you were arrested, so talk to a lawyer to find out exactly when the prosecutor’s deadline to file charges is.

STEP 3
The Arraignment

The arraignment is the first time the defendant appears in court.

At the arraignment, the judge tells the defendant:

• What the charges are,
• What his or her constitutional rights are, and
• That if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge.

The defendant may then respond to the charges by entering a plea. Common pleas include guilty, not guilty, or no contest (also known as “nolo contendere”).

After the defendant enters a plea (responds to the charges), the judge will:

• Release the defendant on his or her “own recognizance” (which means the defendant promises to return to court on a specified date), OR
• Set bail and send the defendant back to the jail until the bail is posted, OR
• Refuse to set bail and send the defendant back to jail.

STEP 4
After the Arraignment

In misdemeanor cases, if the defendant enters a not guilty plea, after the arraignment and before the trial:

• The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer.
• Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
• The defendant can change his or her plea to guilty or no contest.
• The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.

In felony cases, after the arraignment, if the case does not settle or get dismissed the judge holds a preliminary hearing. At this hearing, the judge will decide if there is enough evidence that the defendant committed the crime to make the defendant have to appear for a trial. If the judge decides that there is enough evidence, the prosecutor will file a document called “the Information.” Then, the defendant will be arraigned, a second time, on the Information. At that time, the defendant will enter a plea and proceed to trial. Before the trial:

• The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer.
• Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
• The defendant can change his or her plea to guilty or no contest.
• The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.

STEP 5
Trial

Defendants in criminal cases (other than infractions) have the right to have a jury of their peers decide their guilt or innocence. Therefore, before trial, defendants need to decide whether to have a jury trial (where the jury decides if the defendant is guilty or not) or a court trial (where the judge decides). Usually, defendants choose to have a jury trial because they want a jury of their peers to hear the evidence and decide their guilt. But sometimes there may be circumstances where a defense attorney will recommend a court trial without a jury.
Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. This means that it is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. The defendant has the right to remain silent and that silence cannot be used against him or her.

STEP 6
Setting a Trial Date

For a jury trial for a misdemeanor case: The law says how soon a defendant charged with a misdemeanor must be brought to trial. (See section 1382 of the Penal Code).

If the defendant is in custody at the arraignment, the trial must start within 30 days of arraignment or plea, whichever is later.

If the defendant is not in custody at the arraignment, the trial must start within 45 days of arraignment or plea, whichever is later.

The defendant can “waive” (give up) the right to a speedy trial. This means the defendant agrees to have the trial after the required deadline (also known as “waiving time”). But even if the defendant waives time, the law says the trial must start within 10 days after the trial date is set. It is very important for defendants to get advice from an attorney before they waive time.

For a jury trial for a felony case:: The law says how soon a defendant charged with a felony must be brought to trial. (See section 1382 of the Penal Code.)

The prosecutor must file the Information within 15 days of the date the defendant was “held to answer” at the preliminary hearing.

The trial must start within 60 days of the arraignment on the Information.

The defendant can “waive” (give up) the right to a speedy trial. This means he or she agrees to have the trial after the 60-day period (also known as “waiving time”). It is very important for defendants to get advice from an attorney before they “waive time.”

STEP 7
What Happens at Trial

• Before the trial starts, the lawyers choose a jury. The process for choosing a jury is called “voir dire.” During this process the attorneys on both sides ask questions of the potential jurors to make sure the jurors will be fair and impartial.
• Before the lawyers present evidence and witnesses, both sides have the right to give an opening statement about the case.
• During the trial, lawyers present evidence through witnesses who testify about what they saw or know.
• After all the evidence is presented, the lawyers give their closing arguments.
• Finally, the jury decides if the defendant is guilty or not guilty. The jury must find the defendant guilty beyond a reasonable doubt.

STEP 8
The Verdict

If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. The defendant can never be tried again for the same crime. This is called “double jeopardy.” A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal. If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

If the defendant is found guilty, the defendant will be sentenced.

STEP 9
After the Trial — The Appeal Process

If you are found guilty after a trial, you have the right to an appeal process. There are many reasons for an appeal of a criminal case, but appeals are also very difficult, so talk to a lawyer to make sure you know what is best for you.

There are also important deadlines that apply to appeals. If you miss the deadline, your appeal will most likely be dismissed.

• For misdemeanor cases, you must file a Notice of Appeal (Misdemeanor) (Form CR-132) within 30 days of the date of the judgment or order.
• For felony cases, you must file a Notice of Appeal — Felony (Defendant) (Form CR-120) within 60 days of the date of the judgment or order.

Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does.

You can only appeal if:

• You say there was not enough evidence in your trial to justify the verdict or judgment; and/or
• You say there were mistakes of law during or before the trial that hurt your case.