Criminal Defense

• In a criminal case, the government must prove the defendant’s guilt “beyond a reasonable doubt.” In a civil case, the plaintiff must prove his or her case by a “preponderance of the evidence” (more than 50 percent). This means that a party to a civil case can win if he or she is able to convince the judge or jury that his or her side of the case is slightly more convincing than the other side’s.
•  In criminal cases where the charge is a misdemeanor or felony, if the defendant cannot afford a lawyer, the court will appoint one without cost to the defendant. In civil cases, if a party cannot afford a lawyer, they have to represent themselves. There is no right to a court-appointed lawyer in an infraction case.
• In criminal cases, defendants almost always have the right to a trial by jury, except in infraction cases. In civil matters, there are many types of cases where there is no right to a trial by jury.

Here are 3 types of criminal cases:

• Infractions

An infraction is a minor violation. Many traffic violations are infractions. The punishment for infractions is usually a fine, and if the defendant pays the fine, there is no jail time. 

•  Misdemeanors

A misdemeanor is a crime with a maximum punishment of:

o   Either 6 months or 1 year in a county jail, and/or
o   A $1,000 fine (for most misdemeanors).

Examples of misdemeanors are:

o    Petty theft
o    Vandalism
o    Driving with a suspended license
o    Drunk driving (also known as “DUI” or “driving under the influence”)

• Felonies

A felony is the most serious kind of crime. If found guilty, the defendant can be sent to jail or prison for a year or more, or even receive the death penalty for very serious crimes. Defendants convicted of felonies are usually sent to state prison for sentences of 16 months or more. 

Examples of felonies are:

o   Robbery
o   Murder
o   Rape
o   Possession of illegal drugs (called “controlled substances”) for sale

In any misdemeanor or felony criminal case (and any infraction where you have been arrested and NOT released on your written notice to appear, on your own recognizance, or after a deposit of bail), you should have a lawyer. You have the right to represent yourself in criminal court in California. BUT because the consequences of a criminal conviction can be so serious and you can end up in jail or prison, it is best if you have a lawyer represent you.

If you cannot afford your own lawyer, the court will appoint a lawyer for you, often a public defender. Make sure you tell the judge at your arraignment that you cannot afford a lawyer. You may have to fill out a financial affidavit, which is a form where you explain your financial situation under oath and show the court you cannot afford a lawyer. You should call me to assist you in determining whether you can afford your own lawyer. 

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.

How a Criminal Case Starts

1. 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.

2. 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.

3. 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.

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”).

• Not Guilty means the defendant says he or she did not commit the crime. Sometimes, defendants enter a plea of not guilty as a strategic decision during plea bargaining or because they want to go to trial and force the prosecution to prove its case beyond a reasonable doubt.

• Guilty means the defendant admits he or she committed the crime. The judge finds the defendant guilty and enters a conviction in the court record.

• No Contest means the defendant does not contest (disagree with) the charge. This plea has the same effect as a guilty plea, except the conviction generally cannot be used against the defendant in a civil lawsuit.

If the defendant is in custody at the time of arraignment, 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.

“Bail” is money or property that a defendant puts up as a promise to return for future court dates. When setting the amount of bail, the judge takes into account the seriousness of the crime, whether the defendant is a risk to the community, and whether he or she is a “flight risk” and likely to run away.

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.

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.

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. 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. 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.”

• 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.

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.