A criminal case can begin with a simple traffic stop, a telephone call from a neighbor or an investigation by a
business or regulatory agency. However the case begins, once the investigating agency steps in, whether
it is the FBI or the local police, a criminal investigation has begun.
While we like to imagine our justice system is fair and honorable, that is not always the case. Witnesses can and do lie, police can make mistakes or manipulate the evidence and crime labs can contaminate evidence. Informants will manufacture a criminal case against you in order to try and escape responsibility for their own crimes. All of these factors, the good and the bad, go into the law enforcement investigation and are provided to the district attorney or prosecutor.
Once you become aware that an investigation is under way, you should contact an experienced criminal defense attorney immediately. Law enforcement is working to secure your conviction, you need to have someone on your side representing you and protecting your rights.
After a police report is produced by the investigating agency, the prosecutor is responsible for deciding
what criminal charges to file. The prosecutor may file a "complaint" charging misdemeanors or felonies.
Or they can present their case to a grand jury and let them decide what charges should be filed.
A criminal defense attorney may reach out the prosecutor and help them understand the other side of the story by presenting evidence that the police left out. This can result in reduced charges or no charges at all being filed.
Grand juries are sometimes used by prosecutors in order to decide what charges should be filed in felony cases. A grand jury is convened by the prosecution without notice to the individual under investigation. They listen to evidence presented only by the prosecution and decide whether charges should be brought against the individual. The prosecutor meets with the grand jury in secret without the suspect or the suspect's lawyer present. The grand jury then decides whether or not to indict. This procedure is often used when the prosecutor wants to avoid scrutiny of the evidence by experienced criminal defense attorneys and judges.
Jailhouse booking is the process of creating a record of the arrest of an individual. Even individuals that have
the ability to post bail immediately cannot skip the booking process. The process begins by recording the suspect's
name and the alleged crime that led to arrest. Then the process continues with taking a mug shot, placing personal
property and clothing into police custody (unless any of this property is contraband, it is returned after being
released from jail), fingerprinting, checking for warrants, providing information that pertains to incarceration
conditions (i.e. gang affiliations that may require an individual to be placed in one section of a jail as opposed
to another), and sometimes individuals may be required to provide a DNA sample.
Because the booking process can be stressful and drawn out many people being booked have a tendency to start talking to the police about the events under investigation. The booking process is a routine procedure and is not an interrogation, however, statements that are made voluntarily can be used as evidence in court. Therefore, it is highly recommended that people going through the booking process say nothing about their case. It is a good idea to consult with a criminal defense attorney before you go through the booking process.
Posting bail allows an individual to remain free until either their case is resolved. Bail is intended to ensure
that the individual will return to court when they are required to do so. Bail can be in paid in the form of cash,
check, bond, or property. Bail paid in the full amount (cash, check or property) is refunded when the case is over
and all court appearance have been made. On the other hand, a bail bond is 8-10% of the total bail, but it will not
be refunded because it is the fee of the bondsman. Moreover, a bail bond may require some form of collateral that
the bondsman may seize in the event that the suspect fails to appear in court. Judges are responsible for determining
the amount of bail, however most jails have standard bail schedules that are predetermined bail amounts for common
crimes. This allows a person to get out of jail without waiting to appear in front of a judge at a bail hearing
In certain circumstances, the judge may legally deny bail altogether depending on the seriousness of the crime and the likeliness of the defendant to flee the jurisdiction.
If an individual cannot afford the amount specified, they may also be released on their own recognizance,
known as "O.R." release. Release on O.R. requires that the individual agree to appear for future court dates
without posting bond. This request is usually made at the individual's first court appearance.
Certain factors may influence the judge's decision to grant release on O.R. such as, having family members in the community, having an established residency in the community, being employed, having little or no past criminal history, or if the defendant has faced charges in the past and always appeared in court as necessary.
Arraignment is the initial appearance of the defendant in court. It is at arraignment that court advises the
defendant of the charges being faced. An individual generally appears at arraignment with their attorney,
unless they haven't hired one yet. A judge will generally allow some time for an individual to hire an
At the arraignment a series of procedural steps occur usually including taking the individual's plea, determine whether to set bail and set the amount of bail. At arraignment, an individual will almost always plead "Not Guilty." This plea can be changed at a later time if a negotiated disposition is worked out with the prosecution.
The court may also determine whether to release the defendant on OR. If the individual is released on bail or OR the judge may also determine travel restrictions and ban contact with the alleged victim. Finally, the court and the attorneys set dates for further proceedings such as when the prosecution and defense need to report back on plea negotiations or set a preliminary hearing.
Preliminary Hearings are only held in felony cases. In California you have a right to have a preliminary hearing
in 10 court days or 60 calendar days. You can waive one or both if you and your attorney decide that you need more
time to fully prepare your case for preliminary hearing. Because most cases by way of a negotiated plea bargain, a
preliminary hearing is often your best chance to test the prosecution's case and demonstrate the weakness of the
A preliminary hearing is an initial probable cause hearing to determine whether evidence exists for the case to proceed to trial. At the preliminary hearing, the prosecution presents their case to a judge and may offer witness testimony and other evidence. The defense can cross-examine witnesses to determine more about their observations and see how they might act if the case goes to trial. The defense has the option to present their case following the prosecution's presentation, however they are not required and often don't. Following the preliminary hearing the case may go to trial, the charges may be reduced, or the case may be dismissed altogether.
Less than 10% of criminal cases go to trial, as a result more than 90% of convictions are a result of a
plea bargain. A plea bargain is an agreement between an individual and the prosecutor where the defendant
agrees to plead guilty or no contest in exchange for reduced charges and a favorable sentence.
The judge has the ultimate authority when it comes to accepting or rejecting plea deals. They evaluate all of the terms of the agreement and decide whether the punishment is appropriate by also considering the severity of the charges, the defendant's criminal history, and the defendant's character. Some judges will generally accept a plea disposition worked out by the defense attorney and the prosecution. Others will closely scrutinize it and may offer their own suggestions. It is important to know the practices in the local courts in order to properly prepare for pleas and sentencing.
When agreement can't be reached between the defense and prosecution, a criminal trial is held in which either
a jury or a judge determines whether the prosecution has proved their case beyond a reasonable doubt. Most often
defendants choose to have a jury trial because their peers are presented the evidence and decide their guilt.
Under certain circumstances it may be advantageous for the defendant to choose a court trial and this will
normally be grounded on the recommendation of the defense attorney.
If the defendant ultimately chooses a jury trial, then both the prosecution and defense must go through a process of jury selection. The process consists of questioning potential jurors in order to select individuals that are deemed fair and impartial.
Before the trial begins the prosecution and the defense may also request that the court admit or exclude certain evidence and they will try to reconcile any evidence issues they may have. Once the trial begins, the prosecution and the defense will both have the opportunity to give an opening statement to the judge or jury. These statements will outline what they expect to prove throughout the course of the trial. The prosecution will present their case first through witness testimony, and the defense will have a chance to cross examine the witnesses. The defense will present their case after the prosecution through the same processes of witness testimony, then the prosecution will have the chance to cross examine. At the end both sides will give their closing arguments and the jury or judge will decide whether the defendant is guilty or not guilty. The jury must find the individual guilty beyond a reasonable doubt, otherwise they must acquit the individual.
First-time offenders committing low-level offenses may be able to avoid the normal criminal-case process in favor of counseling or some variety of a diversionary program. The programs will typically focus on counseling, treatment, and behavior modification.
The sentence for a crime depends on whether the crime committed was an infraction, misdemeanor, or felony.
Infractions are the least serious offenses and are punishable by fines or possible probation but they cannot result in jail time. It is for this reason that defendants charged with an infraction do not have the right to a trial by jury and do not have the right to an appointed attorney, although they may hire an attorney on their own accord.
Misdemeanors are criminal offenses that can result in up to a year in jail as well as a possible fine, probation, community service, and restitution.
Felonies are the most serious offenses and they can result in time served from one year to life in prison without parole or even the death penalty depending on the severity of the felony offense.
In minor misdemeanor cases where the defendant pleads guilty (or no contest) or is found guilty in trial the judge may give the sentence immediately. The sentence will also be quickly determined in misdemeanor or felony cases where a plea bargain was agreed upon beforehand.
If there is the possibility for significant incarceration (whether it's a misdemeanor or a felony case), the judge will likely not impose a sentence until after a separate sentence hearing. The sentencing hearing may not take place until some days or even weeks after later.
Probation Report: A probation officer will prepare a sentencing report based on statements from the victim and an interview with the defendant. The report will then be approved by the judge. To try and achieve the least offensive sentence defense lawyers may research possible alternatives to prison (such as a treatment center or home detention). They may meet with the probation officer before the defendant to provide them with helpful information, or seek a private presentence report which are often written by retired probation officers. They may also prepare a written statement in mitigation of the crime presenting reasons the defendant should receive a lighter sentence as opposed to a harsher one.
Probation is a program that the criminal justice system uses to keep tabs on defendants rather than implement harsher punishments. If the defendant is sentenced to serve time, it is possible their sentence could be suspended in favor of probation. Sometimes the defendant may be able to bypass any time served in favor of probation alone. Probation may be conditioned upon obeying all laws, abiding by any court orders (e.g. paying a fine or restitution), reporting regularly to a probation officer, reporting any change of employment or change of address, abstaining from excessive use of alcohol or use of illegal drugs, refraining from travel outside of the jurisdiction, and sometimes avoiding certain people or places.
If a defendant is sentenced to serve time in prison, they may eventually become eligible for parole. Parole is a conditional release from prison before the entire sentence has been served. Decisions to grant or revoke parole are made by a parole board. When the parole board is deciding whether or not to grant parole to a prisoner, they take into consideration the severity of the original offense, sentencing recommendations that affect parole, the prisoner's behavior while incarcerated, statements submitted by victims, and a prisoner's chance for successful reintegration into the community. If a prisoner is not granted parole, they may appeal to a court or to a board of appeals within the parole agency.