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Criminal Procedure

For most people, familiarity with criminal law comes in fragments — from movies, television, and books. But when we become personally involved in the criminal law system, real-life issues come into focus and the need for information and assistance can arise quickly. This overview discusses the basics of criminal procedure:

1. Commission of the Crime

Felony – is a crime punishable by one year or more in State Prison. Felony cases begin in lower courts and then can be bound over to Superior Court if the judge determines that probable cause exists that the defendant being accused has committed the crime in question.

Misdemeanor – is a crime punishable by up to a year in county jail. Misdemeanors are usually handled in lower courts and never go to Superior Court.

2. Retaining a Criminal Defense Attorney

A defendant may retain a criminal defense attorney at any stage of their case, whether it is during the investigation or the night before court dates.

Criminal defendants have the right to an attorney and will be appointed one (Public Defender) if they cannot afford one. However, criminal defendants may be responsible for paying the costs of the Public Defender if it is later determined that they had enough money to pay for a criminal defense attorney.

3. Pre-Arrest Investigations

Pre-arrest investigations are done after the defendant has been contacted by a law enforcement agency, however charges have not been filed yet and the defendant has not been arrested.

This is the best time to hire a criminal defense attorney to take control of the case. During this stage, your attorney can attempt to do the following:

  • Prevent filing of charges.
  • Reduce charges.
  • Assist with surrender and avoid arrest.
  • Divert allegations into an informal resolution.


4. Arrest

Felonies – Police must have PROBABLE CAUSE to make an arrest, which may be conceptualized as a “good reason” to arrest.

Misdemeanors – Arrests can only be made for crimes that occurred while in the presence of the arresting person or with a warrant.

Miranda Warnings – Police do not have to read Miranda Warnings to everyone that is arrested. Failure to read the Miranda Warnings does not make the arrest illegal, but may be grounds to suppress certain statements or confessions.

5. Booking

When a suspect is booked the following occurs:

  • The suspect is taken to the law enforcement station.
  • They are asked a series of routine questions.
  • They are lawfully searched with or without consent.
  • The suspect is fingerprinted and photographed.

All felony defendants and most misdemeanor defendants will be required to go to the station for booking.Getting booking information:

  • Call the jail or prison hotline for booking information.
  • You will need the inmate’s booking number or their date of birth and full name.
  • The jail or prison will release information on the charges, the court date, the arresting agency and the bail amount.


6. Post-Arrest Investigations

Post-arrest investigations are done after the arrest, but before charges have been filed by the prosecutor. It is not required that the arresting agency release the police report before the defendant goes to court. However, sometimes your criminal defense attorney can talk the police into releasing the report. To retain a criminal defense attorney in San Diego, call Pacific Law Center today.

7. Decision to Charge

The following individuals can file charges:

  • County Attorney – The County Attorney files charges against an individual if they believe there is sufficient evidence to convict the suspect.
  • City Attorney – Some cities have a City Attorney’s office that handles most misdemeanor cases and determines if there is sufficient evidence to convict the suspect.
  • In Juvenile cases, the probation department is instrumental in deciding whether or not to charge the defendant.

The following individuals cannot file charges:

  • Police do not file charges. They only make recommendations to the prosecuting attorney if charges should be filed.


8. Filing the Complaint

The prosecuting attorney files a document with the court to show that charges are being filed.

9. Arraignment / First Appearance

The police are permitted to hold a suspect for up to 24 hours after the arrest before seeing a judge or hearing officer at an initial appearance.

At the initial appearance, the defendant will be read his rights and the charges against him. BAIL is set during the initial appearance. Bail is an “insurance policy” that the defendant will appear before the court again. The amount of bail is determined by the seriousness of the offense and by the judge. Bail can be $0 if the person is released “on their own recognizance (O.R.)”, but it can be increased if the judge feels that the defendant will not appear in court again. If the person fails to appear before the court, a warrant will be issued for their arrest.

During a later proceeding in front of the court, the criminal defense attorney can bring a motion to reduce bail. The judge decides whether to reduce bail and will consider the client’s risk of flight and danger to the public. In a felony case, if your attorney is asking for an O.R. release, the court will most likely set the matter over for another hearing and order a pre-trial services report on the defendant. This process usually takes a week.

DISCOVERY is given to the criminal defense attorney after arraignment. Discovery includes, but is not limited to: police reports, medical records, probation reports, photographs, diagrams and viewing of physical evidence.

Discovery in criminal cases must be reciprocal, which means that the prosecution must provide the defense with the evidence they are using in the case. Neither the prosecution nor the defense may “hide” evidence and later introduce it during the trial.

10. Preliminary Hearing

Preliminary hearings only occur in felony offenses. In most states, a preliminary hearing is necessary for the judge to determine whether or not there is sufficient evidence or probable cause to support the charges against a defendant and bind the case over to Superior Court for trial.

11. Filing of the Information or Indictment

If the prosecuting attorney believes there is enough evidence, they will file a document with the Superior Court, which notifies that the State is “charging” the defendant with a particular crime.

12. Arraignment on the Complaint or Indictment

The defendant is taken before the Superior Court and informed of their charges. At that time, the defendant will answer to the charges by pleading not guilty, guilty or no contest. At the Superior Court arraignment, the amount of bail may be reviewed, which may be increased or decreased at the court’s discretion.

13. Pre-Trial Conference

At the pre-trial conference, the criminal defense attorney negotiates with the prosecuting attorney, in order to obtain the best possible “deal” or plea for their client. A “deal” might include:

  • The prosecution charges the defendant with a lesser charge.
  • The prosecution agrees to a lesser punishment for the same charge.
  • The number of counts may be dropped.
  • Alternative sentencing.

Criminal defense attorneys may also file Pre-Trial Motions, which may assist in dismissing charges or changing the prosecution’s position. Some common motions are:

  • Motion to Suppress Evidence
  • Motion to Dismiss the Information
  • Motion for a Speedy Trial
  • Motion to Sever Counts
  • Motion to Compel Discovery

14. Trial

During a jury trial and after the jury is selected, both the criminal defense attorney and the prosecuting attorney complete the following process:

  • Opening statements.
  • Direct examinations of their witnesses.
  • Cross examinations of the opposing witnesses.
  • Closing arguments.

During the deliberation of the case, the jury decides the guilt or innocence of the defendant, but the judge will determine the appropriate sentence if the defendant is found guilty. Upon a guilty verdict, a motion for New Trial might be filed with the court.


15. Sentencing

Sentencing is a court hearing where the judge determines punishment. A defendant may be sentenced to Probation instead of prison. However, he or she may be ordered to do some local custody time as a term of his or her probation. If a person violates their probation, they may be incarcerated. Formal probation is when an individual is supervised by a probation officer. Informal or summary probation is unsupervised. If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the low term, mid term, and high term. Lawyers argue about the proper term based on the facts of the particular case. The final word is within the judge’s broad discretion.

Sentencing modifications occur when part of a person’s sentence becomes inapplicable to their case. For example: Suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to “modify” the man’s sentence. Some alternatives to jail that might be negotiated are:

  • Detoxification Programs
  • Electronic Home Monitoring
  • Residential Treatment Centers

  • Counseling
  • Weekend Work Programs
  • Community Service


16. Collateral Consequences

In addition to any sentence imposed by the court, a conviction can have a number of independent consequences. On felony cases, these consequences can include, but are not limited to:

  • Loss of the right to vote.
  • Loss of the right to possess a firearm of any kind.
  • Loss of the right to associate with known criminals.
  • Registration as a sex offender.
  • Increased penalties for future criminal convictions.
  • Registration as a narcotics offender.


17. Appeals

If convicted, a defendant may file an appeal. The purpose of an appeal is to ensure that the trial court did not make any legal errors throughout the trial process. Appeals may result in the reversal of a person’s trial court conviction.

18. Parole

A conditional release from prison entitles the person receiving it to serve the remainder of the term outside the prison, but technically the person will still be under the Department of Corrections. Typical conditions of parole can include:

  • Periodic meetings with parole officers.
  • Foregoing the possession of weapons and not associating with known criminals.

* DISCLAIMER The criminal process may vary slightly depending on your charge and jurisdiction. Please ask your attorney to thoroughly explain the process.


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