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Published: 2008-03-26

Common Criminal Law Questions



If you have been accused of a serious crime, your chances of success depend not only on the skills of your lawyer, but also on your lawyer's ability to effectively navigate through the criminal justice system. The following is an overview of that system, along with answers to the most frequently asked questions.

Q: Should I talk to the Police?

A: Make no statement and sign nothing!

If the police are investigating you, you may or may not be aware of it. At some point, they may ask you to come into the station and give a statement. You may believe this is your chance to tell your side of the story. Don't! Understand that this is a very dangerous time for anyone charged or under investigation for a serious offense. Instead of talking to the police, hire a good criminal defense attorney. A good attorney can intercede on your behalf and talk to detectives. This is a great way to get valuable information and may result in charges not being filed. Most importantly, doing so will keep you from giving a statement that will ultimately be used against you. Remember, the police are not there to clear you of the charges - the police are there to make a case against you. Any statement you make will undoubtedly be used by the District Attorney at trial. Even statements made by you that you believe to be innocent can be damaging. For example, the police may not know whether you were even in the area of an alleged crime. If you make a statement to the police saying that you were there but had nothing to do with it, the District Attorney no longer needs to prove your presence at the scene of the crime. You have done that for them.

Once again, the most important thing you can do at this stage is retain an attorney. Protect your rights, make no statements and sign nothing.

Q: Can they arrest me without evidence of my guilt?

A: Only if the police have probable cause to believe you have committed the crime. Once they have probable cause, they can arrest you in a number of ways: (1) They can simply arrest you; (2) If they believe you are not a flight risk, they may submit your case to a District Attorney's office who in turn will send you a letter in the mail asking you to appear for an arraignment; or (3) They may ask you to voluntarily surrender yourself at the police station. Under the second and third scenario, your best bet is to hire an attorney immediately. An attorney can help you arrange the voluntary surrender and even make arrangements to have a bail bondsman present so that you will not have to go into custody at all. In addition, they may be able to get you extra time before the surrender. If you receive a notice from the District Attorney, you will need a lawyer because your next appearance will be your arraignment date.

If you are arrested and are in custody, your arraignment must occur within 48 hours of your arrest; however, if you are arrested on a weekend, you may be held for additional time.

Q: What happens at arraignment?

A: Your arraignment will be your first appearance in court whether or not you are in custody. At arraignment, your attorney will receive the police reports on your case and any additional evidence that the District Attorney has in their possession. Your attorney will also receive a formal complaint which states the charges that have been filed against you. It is important to note that the charges may be different than those for which you were arrested. Where the police can arrest you for one pair of charges, the District Attorney's office may disagree and file a completely different set of charges if they feel the facts warrant.

If you are in custody, your attorney will have the opportunity to argue bail. However, it is important to note some courts will not hear a bail argument without what is commonly referred to as an "OR Report." "OR" stands for "Own Recognizance." The "OR" clerk will interview you to see if you present a risk of flight. They will ask about your personal background, your job, where you live, your job history, and what family support you have within the community. Because this is a bail hearing, the only inquiry is 1) whether or not you are likely to flee the state or country if released on just your promise to return for all court proceedings in your case; and 2) the seriousness of the case.

Q: What is a "preliminary hearing"?

A: If you were charged with a felony, your next appearance will most likely be a preliminary hearing. A preliminary hearing must be held within ten days of your arraignment date. In some courts, there may be a conference scheduled prior to the preliminary hearing. This conference is a chance for the District Attorney, your attorney and the judge to discuss possible resolution of your case.

The preliminary hearing is the first real opportunity for your attorney to refute the State's evidence against you. At the preliminary hearing, "hearsay" (out of court statements) is admissible. Therefore, the alleged victim may not take the stand; rather, the police officer who took the report may take the stand and say what that victim would if called to testify. At the preliminary hearing, the judge will determine whether or not there is probable cause to believe that a crime has been committed and if so, whether or not the defendant committed that crime. The standard of proof at a preliminary hearing is quite low and it is unusual to outright win a preliminary hearing. Rather, your attorney will use the preliminary hearing to lock down the testimony of key witnesses and determine inconsistencies in the prosecution's case.

Q: What happens after the arraignment?

A: If the judge determines at the preliminary hearing that there are sufficient facts to believe that you committed the crime, you will be bound over to Superior Court. Once in Superior Court, you will be arraigned on the Information which will be filed by the District Attorney's office. Once again, the Information may charge you with crimes different than those charged in the original complaint. The District Attorney may file any charges they believe were proven at the preliminary hearing. Thus, additional charges with which you were not charged with can surface at this point.

Q: What is a "pretrial conference"?

A: After the Superior Court arraignment, your next date in court will be the pretrial conference. At the pretrial conference, important motions are argued. Typical motions in a criminal case include the following:

  1. Motion to Suppress
  2. A Motion to Suppress is filed when your attorney believes that there are grounds to suppress either physical items taken from you or statements made by you.

  3. Penal Code § 995 Motion to Dismiss
  4. A 995 Motion to Dismiss will be filed by your attorney if they believe there was insufficient evidence at the preliminary hearing from which the judge could make a finding of probable cause.

  5. Motion to Release Information
  6. In certain types of felony cases, most notably sex abuse and child molestation cases, the victims psychological and/or medical records may be relevant. A motion will be filed by your attorney to disclose that information. It is not automatically disclosed because of its privileged nature.

  7. Motion to Sever
  8. In various circumstances, your attorney may wish to have your case separated from that of a co-defendant or have one or more of your charges tried separately from the others.

At your pretrial conference, your attorney will have the opportunity to continue discussions with the District Attorney in an attempt to reach a plea bargain, if that is what you and the attorney are seeking. Possible favorable dispositions may include the following: A plea bargain that would strike a prior conviction; a plea bargain that would strike a prior serious felony; a plea bargain that would reduce the charge from a felony to a misdemeanor; a plea bargain that would reduce the charge from a serious or "strike" offense to a simple felony, or wobbler offense. A wobbler offense is an offense that has the possibility of "wobbling down" to a misdemeanor. Practically speaking, this means that your attorney can request that the offense be reduced to a misdemeanor either during your probationary period or at the end of your probationary period.

Q: What happens at trial?

A: If no disposition is reached on your case, it will be set for trial. The court has 60 days from the date of your arraignment in which to bring you to trial. The form your trial takes will depend entirely upon the particular circumstances of your case. A prepared attorney will develop an overall theme to your case and call witnesses which support your innocence.

Before trial commences, you and your attorney will have the opportunity to select a jury. This is commonly called voir dire. If you are charged with a felony offense, your attorney will have the opportunity to dismiss ten potential jurors simply because you do not believe they will be favorable to your defense. If you are tried for an offense for which you could get life, your attorney will have the opportunity to dismiss 20 potential jurors. After the jury is seated, your attorney will argue whatever motions are required in order to give you a fair trial. After those motions are heard, the trial will commence. The prosecution will give an opening statement. Your attorney can give an opening statement either at that time or reserve opening statement until after the prosecution's case is over. After the opening statement, the prosecution will present its evidence in the form of police officers and other civilian witnesses. Your attorney will have the opportunity to cross examine each of those witnesses. Once the prosecution rests the case, your attorney will put on your case, calling any helpful witnesses to the stand. These witnesses can include percipient witnesses who watched or viewed the event, as well as character witnesses who can testify as to your good character. After your attorney finishes his or her case, the prosecution has an opportunity to put on rebuttal evidence. Once all the evidence is closed, the prosecutor and your attorney will give a closing argument to the jury. Your attorney will focus on reasonable doubt and the facts of your case. The jury will then retire to reach its decision. In California, the jury must reach a unanimous decision. If they are deadlocked and cannot reach a decision, a mistrial will be declared by the judge.