AN OVERVIEW OF THE CRIMINAL JUSTICE PROCESS
There are three kinds of criminal violations:
Infractions are minor violations of state and city laws. These cases involve such offenses as minor traffic violations, disturbing the peace, and loitering. Infractions are generally punishable only by fine.
Misdemeanors are criminal offenses such as driving under the influence of drugs or alcohol, prostitution, spousal abuse, and minor assault and batteries. In these cases, offenders may be fined or sent to county jail for up to one year.
Felonies are cases that involve more serious crimes such as robbery, kidnapping and murder. Felony cases carry more severe penalties that can include sentences to state prison.
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, however, you still could be detained or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a recent burglary site. Storekeepers also can detain you if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.
1. Authority To Arrest
All law enforcement officers (such as police officers, county sheriff officers, investigators in a district attorney’s or attorney general’s office, and highway patrol officers) can arrest you whether they are on or off duty. In most cases, a probation or parole officer also can arrest you.You can be arrested without a warrant, if there is probable cause to believe you committed a crime. A peace officer does not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit a misdemeanor or infraction, they may ask you to sign a citation or notice instead of taking you into custody. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.
2. Citizen’s Arrests
Any person, including a private security guard, can make a citizen’s arrest if he or she sees a misdemeanor being attempted or committed. He or she also can make a legal arrest for a felony as long as it actually was committed, and he or she has good reason to believe you did it. He or she must take you to a police officer or judge who is required by law to take you into custody.
3. Arrest Warrants
Generally an arrest warrant is required before you can be taken into custody from within your home. However, you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property. An arrest warrant must be signed by a magistrate or judge, who must have good reason to believe that you committed a crime.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you——even if the officer does not have a copy of the warrant.
Before entering your home, a law enforcement officer usually will knock, identify him or herself and tell you that you’re going to be arrested. If you refuse to open the door——or if there’s another good reason——the officer can break in through a door or window. If the police have an arrest warrant, you should be allowed to see it.
If they don’t have the warrant with them, you should be allowed to see it as soon as is practical.
When arrested, the police may search the area within your reach, even without a search warrant. If you are arrested outdoors, they may not search your home or car. Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony, in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
B. SEARCHES AND SEIZURES
An officer can make a search with either your consent or a search warrant or an authorized exception to a search warrant. You have a right, however, to see the warrant before the search begins. You do not have to consent to a search, so don’t. You should make your statements very clear that you do not consent to a search.
1. Warrantless Searches
a) Body Searches
If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods, and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.
b) Home Searches.
In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms——and even other parts of the same room——are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which is in plain sight.
c) Car Searches
Your car and trunk can be searched without your consent or a warrant if an officer has probable cause to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason——such as a broken taillight——they can take any illegal goods in plain sight.
If you, your home or your car is searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.2. Warrant Searches
If officers arrive at your home with a search warrant, you must allow them inside to search your home. A search warrant is a legal document signed by a judge giving officers permission to search a designated area for specific items. You should ask to see the warrant. It will tell you where the officers will search. Some warrants allow for a search of the home, car, garage, etc. If you are served with a search warrant, you should contact your attorney immediately. However, you should not try to prevent or interfere with the search. If the officers view any illegal items during their search (even if the items are not what is listed on the warrant), they may seize the items.3. Seizing Non-Testimonial Evidence
Once arrested, you may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver’s license will be suspended and the refusal will be used against you in court.
If you are taken into custody, you will be “booked”. This means your arrest has been written into official police records, and you have been fingerprinted and photographed. Once you have been “booked,” you have a right to make and complete three telephone calls that are free within the local dialing area.
D. BAIL AND RELEASE FROM CUSTODY
If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest may then be considered a detention and not be recorded as an arrest.
If the police have reason to believe that you committed the crime, you can be released from jail on bail. The amount of bail——money or other security deposited with the court to insure that you will appear——is set by a schedule in each county. Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody.
Generally, the amount of bail is set according to a written schedule based on your charges. When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear (even for traffic tickets), any previous criminal record and your connections to the community, as well as the probability that you’ll appear in court.
Instead of paying bail, you might be released on your own recognizance or “O.R.” (or “”supervised O.R.””). This means that you do not have to pay bail because the judge believes that you will show up for your court appearances without bail. If you are released on supervised O.R., the judge can put conditions on your release, such as mandatory attendance of AA meetings. Failure to comply with the court’s requirements can be reason for the judge to revoke your bail and put you in custody.
Bail is most often posted by a bail bondsman who will post bail upon payment to him or her of ten (10) percent of the bail amount. For example, on $20,000 bail, you would need $2,000 for the bail bondsman. Sometimes you will need collateral for the remainder. A defendant will not get the ten percent deposit back. For specific requirements, contact a local bail bondsman. You can also post the entire amount of your bail with cash or a cashier’s check at the courthouse. If you do this, you will get the bail returned, unless bail if forfeited for failure to appear. You can also use property as collateral when the property is worth three times the bail amount. This option requires appraisals and paperwork and therefore, it takes a lot longer to get out of custody.
E. WHO FILES CHARGES
Police reports alleging illegal acts are given to the District Attorney, City Attorney, or City Prosecutor who decides what charges to file. When a defendant is charged with a felony, the District Attorney files charges. For Los Angeles Police Department arrests, if the District Attorney determines that a felony filing is not appropriate, the charges may be referred to the Los Angeles City Attorney, who prosecutes misdemeanors within the City of Los Angeles. The Los Angeles Police Department may take a case allegedly involving a misdemeanor directly to the City Attorney for possible filing of charges.
It is important to note that the District Attorney, City Attorney, or City Prosecutor file the formal charges against a defendant, NOT the police department.
The charges which appear on the police booking forms, bail forms, and citations, are the charges which the police department is recommending be filed. However, only a prosecutor can actually file charges. Therefore, it is not uncommon to see that the charges change when you go to court.
It is also not uncommon for a person to be arrested on misdemeanor charges, then released, only to appear in court and discover that no charges have been filed. Occasionally, this is because the charges have been rejected by the prosecution. More often, however, the decision as to what the District Attorney wants to file has been delayed.
Because the prosecutor, not police, file the actual charges, it may be helpful for your attorney to meet with the prosecutor before charges are filed to try and convince them that lessor charges are warranted.
F. YOUR CONSTITUTIONAL RIGHTS
You have certain rights if you are arrested. In a criminal case, the stages that occur before trial, and during trial, are designed to safeguard the constitutional rights of the accused, who is innocent until proven guilty.
The Constitution guarantees all suspects the following rights, among others:
2. “Miranda” Rights
A suspect must be given a “Miranda warning” soon after he or she is in custody — alerting the suspect to the right to remain silent and to talk to a lawyer or have a lawyer present during police questioning.
Before the law enforcement officer questions you, he or she should tell you that:
These are your “Miranda” rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. However, this does not necessarily mean that your case will be dismissed.
This does not apply if you volunteer information without being questioned by the police. You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, the questioning must stop as soon as you say so or as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different. Your request for an attorney must be specific. It may not be sufficient for you to state that you “think you need a lawyer”. You should state that you want to speak to an attorney and do not want to answer anymore questions. You should make this statement often to as many officers as you can until the questioning stops.
G. THE ATTORNEY’S ROLE
1. Hiring A Lawyer
If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on the bail process.
2. The Public Defender’s Office
The U.S. Constitution guarantees everyone charged with a crime the right to legal counsel. A public defender, or other attorney, will be appointed for you if you cannot afford to hire an attorney on your own. Public defenders are experienced trial attorneys who specialize in criminal law. They are unrelated to prosecutors or the police.
Public defenders typically carry an extremely high caseload. Also, you must qualify for the public defender by having little or no resources. If the court discovers that you have resources available, you can be retroactively charged for the public defender’s services.
II. COURT PROCEEDINGS
Acting on behalf of the people of California, the District Attorney, City Attorney, or City Prosecutor in each county brings criminal charges against individuals and corporations who are alleged to have committed crimes in their jurisdiction. If you are charged with a crime and are unable to understand English, you have a right to an interpreter throughout the proceedings.
A. ATTENDING COURT
Every defendant charged with a felony must be present at every court hearing. If a person charged with a felony fails to show up for a court appearance, including pretrial, a warrant will be issued, bail/bond will be forfeited, and he or she can be taken into custody.
If a defendant is charged with a misdemeanor, his or her attorney may not need him or her to appear at every court hearing. Be sure to check with your attorney before your court appearance. When in doubt, always appear at the scheduled court date.
When you arrive in court, you must check in with the Bailiff, or other court personnel. Most courts require that you be in the courtroom by 8:30 a.m. A few courts, such as Riverside, have courts which start at 7:30 a.m, while other courts open at 9:00. Always check to be sure what time your case will be scheduled. If you are late to a court appearance, a warrant may be issued for your arrest and your bail/bond may be forfeited.
While defendants are ordered to be in one court at 8:30 a.m., your attorney may be assigned to a number of courts that day. Attorneys will call the court to let them know what time they will be in that courtroom. This is a common occurrence as numerous cases are heard everyday. You should be aware that although your case is set for 8:30, it may take several hours to have your case heard.
Your first court appearance is typically your arraignment. You have a right to be arraigned without unnecessary delay——usually within two court days——after being arrested, excluding weekends and holidays. At the arraignment, you will appear before a judge who will tell you the charges against you. An attorney may be appointed for you if you can’t afford one, and the bail can be raised or lowered depending on the circumstances of the case.
You can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead “nolo contendere,” meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case unless the charge can be punished as a felony.
C. PRELIMINARY HEARING
If you are charged with a felony, you have the right to a preliminary hearing within ten (10) days of arraignment. During the preliminary hearing, the District Attorney’s office must present evidence showing a reasonable suspicion that a felony was committed and that you did it. The judge must be convinced that there is sufficient evidence to bring you to trial. This is a very low standard. The defense may cross-examen the government’s witness but is very limited in the evidence it may present. This hearing is heard by a judge not a jury.
The primary purpose of the preliminary hearing is to weed out charges that are obviously groundless. At a preliminary hearing, the prosecution may use police officers to present the statements of victims and witnesses to demonstrate to the judge that there is enough evidence to justify sending the case to a court for trial. The vast majority of defendants are “held to answer” after the preliminary hearing, meaning that there is enough evidence to proceed with the case.
If you are “held to answer,” your case then moves to a trial court where you are once again arraigned; however, this time a trial date is set. Generally speaking, the trial has to occur within 60 days from the date of this new arraignment, although felony cases frequently require more time so that the defense can conduct a complete, independent investigation, interview witnesses, consult with expert witnesses, and sift through all evidence presented by the District Attorney.
If you are charged with a misdemeanor, you will not have a preliminary hearing. After your misdemeanor arraignment, you will either proceed to pretrials or a trial.
D. PRETRIAL HEARINGS
After your arraignment, your case may be set for a number of pretrial hearings or “pretrials.” Pretrials are an opportunity for your attorney to meet with the District Attorney in court and discuss your case.
The defense attorney may also make various motions in order to get the case dismissed on legal grounds, such as a motion to get certain evidence thrown out of court because the police acted improperly when seizing this evidence, or a motion to dismiss because the evidence presented at the preliminary hearing was not strong enough to warrant a trial. The defense might also make motions to force the District Attorney or the police to disclose other pieces of evidence which could prove that the client is not guilty of the charge.
The number of pretrial needed can significantly increase the length of your case. Sometimes several pretrials are needed, adding months onto your case.
E. PLEA BARGAINING
1. Guilty or “no contest” Please
While the case is ongoing, the defendant may decide he or she does not want to go to trial but wants to settle the matter. Just as often, a District Attorney might offer the defendant a case settlement, referred to as a “plea bargain,” to plead guilty to a less serious charge or agree to ask for reduced incarceration time at sentencing. Settlement may occur at any time, from the first court appearance at the initial arraignment up to, and even during, trial. Under the terms of the plea bargain, a defendant pleads “no contest” or “guilty” and gives up the right to a trial. This is done with the understanding that a sentence will be agreed to by the defendant, the defense lawyer, and the district attorney. The judge may approve such agreements only after close questioning, to make sure that the defendant’s plea is voluntary, with full appreciation of its consequences.
2. Diversion / Deferred Entry of Judgment
Another kind of “settlement” can be possible in certain felony cases involving non-violent drug offenses. Individuals who have been charged with first-time drug offenses, as well as certain defendants who suffer from the disease of drug addiction may be eligible to attend classes or other rehabilitation programs. If they successfully complete all required programs, they can have their case dismissed in a process which is known as “Deferred Entry of Judgment” — commonly referred to as DEJ or drug diversion. Still other defendants who commit non-violent drug possession offenses may be eligible for sentencing according to the Proposition 36, which generally favors long-term drug treatment as an alternative to incarceration. DEJ is available only upon a plea of “guilty,” whereas Proposition 36 sentencing is available upon conviction — whether a defendant pleaded guilty or was found guilty after a trial. It is very important to discus these options with your attorney so that you can be assessed for suitability for treatment.
1. Jury Trials
When a case does proceed to trial, however, defendants typically choose a jury trial as opposed to a “court trial,” in which a judge hears the evidence and determines a defendant’s guilt or innocence.
In the vast majority of cases, a jury consists of twelve persons. In order for the jury to reach a verdict, all twelve jurors must agree. In other words, the verdict must be unanimous. At trial, the prosecution must try to prove the client’s guilt beyond a reasonable doubt. All 12 jurors must agree in order to either convict or acquit. If the jury cannot agree, a “mistrial” will be declared by the court, and the case may be tried again before a different jury, it may be dismissed, or a case settlement may be agreed by the prosecution and the defense.
The jury selection process begins after the jury commissioner sends a randomly selected group of jurors to a courtroom. From that group, judges question prospective jurors in a process known as “voir dire” to determine if the jurors can be fair and unbiased to both sides. The attorneys then select a panel of jurors to serve on a particular case. The jurors are sworn into service and the trial begins with opening statements. For detailed information on jury duty, visit the Cal Courts jury duty section.
a) Opening statements
Opening statements offer attorneys a chance to tell jurors the issues surrounding the case and what they believe the evidence will show. Opening statements, however, are not evidence. Jurors must be careful not to let any facts presented in the opening statements become evidence in their minds.
In all cases, the prosecutor bears the burden of proof beyond a reasonable doubt on all elements of the crimes charged. The evidentiary phase of the trial starts with the prosecutor’s presentation of evidence in his or her case-in-chief. After the prosecutor is finished or “rests,” the defendant may, if he or she chooses, put on evidence. Because of the presumption of innocence, however, the defendant has no obligation to put on any evidence or to testify; the prosecutor alone bears the burden of proving the defendant guilty of the crimes charged. After the defendant rests, the prosecution may put on evidence to refute the defendant’s case as part of the prosecutor’s “rebuttal case.” Evidence includes, among other things, witness testimony; documents such as letters, records, wills; and physical objects such as guns or illegal drugs.
Judges may take “judicial notice” of such things as the meaning of words and phrases or geographical divisions –– this, too, is considered evidence.
c) Instructions on the law
Following either the close of evidence or the attorneys’ closing arguments, the judge instructs the jury on the law. The jury must accept the judge’s instructions and apply that law to whatever facts they find to be true.
d) Closing Arguments
During closing arguments, attorneys sum up their case, telling the jury what they believe the evidence has shown and why it favors their side. These arguments, like all statements of counsel, are not evidence.
e) Jury Deliberations
Every juror must participate in the deliberation process. The purpose of these deliberations is to have an open, honest discussion in which many points of view are considered. Using calm, unbiased reasoning, the panel attempts to reach a unanimous agreement as to what kind of verdict is supported by the evidence.
f) Determining Guilt
In criminal cases, judges and jurors may only convict a defendant if they believe he or she is guilty “beyond a reasonable doubt.” The law defines reasonable doubt as “not a mere possible doubt, because everything relating to human affairs, is open to some possible or imaginary doubt. It is that state of the case, which, after comparing and considering all the evidence, the jurors cannot say they feel an abiding conviction of the truth of the charge.” If all 12 members of the jury cannot agree –– in other words, be unanimous –– then there is no verdict. If the judge determines that the jury is hopelessly deadlocked, or “hung,” then he or she will declare a mistrial.
After a defendant is found guilty or enters a guilty plea, he or she must be sentenced by the court. The sentence is the punishment which the defendant will receive. Before imposing the sentence, the judge may need to know more about the defendant, such as any previous record, the defendant’s family and job situations, and chances for rehabilitation. To obtain this information, the judge may call on the probation officer to investigate the defendant and report back.
Under California law, criminal penalties are set by the Legislature. For most felony offenses, the judge is presented with a range of three possible sentences, such as two years, three years or four years in prison. However in some instances, the particular crime may have a mandatory sentence that leaves the judge with no sentencing options.
Judges may consider the following in sentencing: any minimum or maximum time of incarceration imposed by the statute; the severity of the crime; the defendant’s prior record; harm to the victim; whether the crime was planned or sophisticated; whether there was anything such as drugs or mental illness that made the defendant act out of character.
The judge is expected to sentence defendants with the following factors in mind: punishing the defendant; encouraging the defendant to lead a law-abiding life; deterring others from committing crimes; protecting society; and achieving uniformity in sentencing. Additional factors include restitution to victims; the time to be spent in jail or prison; or special conditions of probation, particularly in cases involving alcohol, drugs, domestic violence or guns.
H. POST SENTENCING
At sentencing, a defendant may be ordered to do several things, serve jail/prison time, be on formal/informal probation, attend domestic violence, alcohol, drug, or anger management classes, pay fines, do community service, etc. The court will give you a date to enroll in programs and pay fines. A defendant must be sure he understands all the terms and conditions of his plea. You must be sure to sign up for the required classes, etc. Your attorney cannot do this for you. If you fail to follow the court’s order, you can be placed in jail.
Most retainer agreements (agreement with your attorney) only cover your case until you are sentenced. Most attorney’s will not represent defendant’s in post sentencing matters. If you have any questions about the terms of your sentence contact your attorney.
A minor who is charged with committing a crime comes within the jurisdiction of the juvenile delinquency court. Juvenile court is different from adult court. A juvenile does not have the right to bail or a trial by jury. After a child is arrested, he or she may be released to a parent and cited into court at some future date — or transported to a juvenile hall. At the first court appearance, the court will usually order the probation department to prepare a report which details the child’s history at home and at school and will help determine whether court intervention in the child’s life is necessary.
Because a juvenile does not have the right to a jury, a judge hears the case and determines if the allegations are true. If the charges are admitted or found true, there is a “disposition hearing” where the judge decides what must be done to rehabilitate the minor. The judge could order the child to be returned home on probation, sent to a group home, sent to a county-run juvenile camp, or in extreme cases, sent to the California Youth Authority (CYA). In all juvenile cases, the courts try to consider the unique needs of the child and find ways to turn his or her life around — before it is too late.
If the offense with which the minor is charged is serious, the District Attorney might seek an order to have the minor treated as an adult. Recent changes in the law make it much easier for the District Attorney to prosecute a minor in adult court.
There are special programs available to deal with mental health issues and specialized educational needs in juvenile cases. These programs are provided through various state and county agencies and can be accessed by parents themselves or with the help of private advocates. Always alert your lawyer to any problems the minor has with drugs, school or mental health so that our office can begin the referral process at the earliest possible time. Also, any records which relate to these problems should be shown to the lawyer. If the Juvenile Court is not made aware of the problems, the source of a behavioral problem might go undiscovered and untreated, and the child may not receive the full benefit of the resources available to the Court.
J. ARREST AND CONVICTION RECORDS AND EXPUNGEMENT
Local police departments and the state Department of Justice keep arrest records. According to law, they cannot show such records to anyone except law enforcement officers, and may only show records of your convictions to certain licensing agencies which have a right by state law to investigate your criminal background. An arrest record includes when and why you were arrested, whether the charges against you were dropped, whether you were convicted of the charges and the subsequent sentence imposed. Both pleading guilty (or no contest) and being found guilty after a trial count as convictions.
If you are convicted of a crime, are placed on probation and successfully complete the probation, you may be able to have the conviction set aside and the case dismissed. This may be helpful for employment background checks after the probation is completed.
It is important to note that even if you have your conviction set aside and dismissed, you will still have a felony record for some purposes, such as possession of firearms.
If you are convicted of certain felonies and you successfully complete probation, you may ask that the felony be reduced to a misdemeanor. If your case is reduced to a misdemeanor, then certain rights may be restored. You must contact the probation officer, or an attorney, to help clean up your record and answer specific questions.
K. FINAL NOTE- ALWAYS TELL YOUR LAWYER
Attorneys are not mind readers and often only get limited information from the police and District Attorney. Therefore, if you are charged with a crime, there are some things you MUST tell your lawyer:
Immigration consequences of a conviction can be far worse than the criminal penalties. Certain crimes can result in the deportation, removal, permanent ineligibility for lawful immigration status, extended periods of immigration detention, and exclusion from the United States. With proper planning, however, counsel may be able to obtain a disposition that avoids serious immigration consequences. However, you must inform your attorney of your status.
2) Probation or Parole
A new criminal case can have serious consequences if a defendant is on probation or parole. You must inform your attorney of your probation/parole status in order to avoid some of these consequences.