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Criminal Case Procedure
This outline is designed to help my clients and potential clients
gain a better understanding of the process involved in a criminal
case. It is only a general outline. A helpful piece
of information to all who are unfamiliar with the court process
is that every stage of the proceedings occurring at and after
arraignment can be continued by the lawyers and may be unsettling
for the accused. It is important to expect what may seem
like needless delays occasionally in order that your attorney
can best represent you and so there are no surprises along the
way. Communication between client and counsel is vital
and will help alleviate unnecessary worry during the pendency
of the case. Let your attorney educate you as to what
is going on so you can help in your own defense.
Types of Crimes
Crimes are classified as felonies and misdemeanors. Infractions
are civil offenses not considered crimes, like traffic violations. A
felony is any crime punishable by prison. A misdemeanor
is a crime punishable with up to a year in jail.
The Role of Attorneys and Judges
The District Attorney’s Office (DA) is responsible for
filing criminal cases. The DA is the prosecutor that represents
the People of the State of California and decides what charges
to file against you, if any, in a formal document known as a
complaint or information. The DA is present at all court
appearances once the case filed until the case is resolved and
makes offers and recommendations to Defense counsel and the Judge
for resolution of cases. In some hearings, the DA will
waive their appearance, typically for infractions, and misdemeanor
arraignments. In North Court, the City of Anaheim has
its own team of prosecutors who are City Attorneys but act functionally
the same as a DA.
The Defense Attorney represents the accused or the Defendant
in a criminal case. We call them clients. In our
office, we go to great lengths to ensure that our clients understand
the nature of the charges against them, their rights, the strength
of evidence in the case, our defenses, strategy, and plan of
attack to help get the best possible outcome. You have
the absolute right to have your attorney present once you are
charged with a crime. We will stand with you at every
court appearance and speak for you. Before charges are
filed, we can do research and investigate the case to potentially
avoid being charged altogether. Don’t hesitate to
call our office for a free consultation to allow us to get started
on defending you immediately.
The Judge (also referred to as “the court”) gets
involved in criminal cases at every court hearing. Once
the case is on the calendar, the attorneys may want to discuss
the case with the Judge “off the record” in the Judge’s
chambers. If a resolution is being discussed, the Judge
has independent discretion to offer a resolution of the case
without the approval of the DA. If the court offer is
accepted, the court must take a plea to all the charges brought
against the Defendant. The court cannot change the specific
crimes charged, only the punishment for pleading to all of them. The
DA is in charge of the complaint and can agree to dismiss charges
and will usually make an offer to resolve the case. In
this instance, the court doesn’t need to be involved in
discussion between the attorneys.
Warrants and Investigation
A warrant is an order from the court permitting law enforcement
to go out and look for people or evidence. These kinds
of warrants are usually requested by law enforcement with the
approval of the DA. A warrant to get someone is an arrest
warrant, a warrant to search a place is a search warrant. Not
to be confused with a bench warrant, which is a warrant issued
by the judge usually for failing to appear at a court hearing. The
result of a warrant being issued is that the person being requested
can be arrested and brought to the local jail. We provide
24 hour release assistance if you are arrested. If you
suspect or get notice that a warrant exists for you, call us
so we can begin getting the warrant recalled so you don’t
get arrested and suffer the inevitable consequences of an unexpected
incarceration.
Arrest
If a crime is observed or investigated by police, or a warrant
is issued and executed, or police are requested by a citizen
to arrest, the criminal case begins to take shape at this stage. An
arrest is an important legal activity, a seizure of your person,
that gives rise to many defenses in a criminal case when it is
not effected properly. If your rights are violated during
or because of an arrest, your defense attorney must know. Once
arrested, the individual can start the process of getting out. This
can occur via posting a bond, or getting released on his own
recognizance (O.R.) with a written promise to appear in court
on the day scheduled for arraignment.
Bail
Bail is a kind of insurance that is designed to ensure the defendant’s
appearance in court at the appointed time. If a bond is
posted for bail, and the defendant fails to show up for court,
the bond is exonerated, and the co-signor is responsible to produce
the defendant, or pay the entire bail amount. Bail agents
use bounty hunters to track down fugitives and return them to
court.
Bail is set by the arresting officer or his supervisor, the
watch commander, jail release officers, or the Judge. In
each county, a bail schedule gives a guideline for bail amounts
depending on the charges that the individual was booked on. To
post bail, one can use cash or a bail bondsman. We have
access 24 hours a day to local bondsmen that are willing to post
your bond as soon as possible to get your loved one out of jail. In
Orange County, we can contact the jail to discuss reducing the
bail amount after booking occurs before the suspect is sent to
court. Once the Judge sets bail, a motion in court must
be made to argue for a reduction in the bail amount. Once
bail is posted and the defendant released, the bond remains in
effect until it is exonerated which occurs when the case is over,
if there are no failures to appear.
Decision to File Charges
After law enforcement arrest the suspect, they write their reports
and send the reports to the District Attorney for a charging
decision. Police will recommend the D.A file certain charges
based on the information obtained by the Police. The D.A.
is the entity solely responsible for filing charges. The
D.A. has independent discretion to bring the recommended charges,
other charges, or none at all. Occasionally, the D.A.
may need to return the file back to the Police to clarify a certain
point that is necessary to the case. There is a common
misconception that citizens or victims can “press charges” or “drop
the charges”. The D.A. is able to take into consideration
whether their interest or lack of interest would affect the case,
but the prosecutor has the ultimate decision and can file charges
even if there is no interest to the specific victim or citizen
because there may be other reasons to prosecute.
Arraignment
Once arrested, if the suspect remains in custody, the law requires
that the individual be charged within 72 hours of the arrest. If
the third day is a weekend or holiday, the rules allow the arraignment
to take place the next business day. In Orange County,
an arraignment occurring for an individual in custody, will occur
in the afternoon, on the afternoon calendar. If no charges
are filed, the individual must be released. The D.A. can
still file the case, however, but the Orange County D.A. tries
very hard to file something if there is some evidence against
the suspect before the 72 hour period elapses.
At the arraignment, the charges are read and the individual
can now be considered a defendant, with the important rights
provided by the State and Federal Constitution and State Law
regarding communication, legal representation, and speedy trial
rights. A preliminary copy of the reports in the D.A.’s
file are also provided to defense counsel at the arraignment. We
recommend that you contact and retain Mr. Grupenhagen well before
the arraignment date to prepare bail reduction arguments, trial
setting issues, and motions that can be prepared for arraignment. At
the arraignment, we want to have you as a client, not just a
defendant.
Pre-trial Conferences and Plea Bargaining
Plea bargaining is merely a device that is designed to allow
discussion among the attorneys and the judge, if necessary prior
to trial. The negotiations and case preparation can help
to narrow the issues that are presented at trial, or provide
a resolution of the case before trial. Pre-trial conferences
are the court hearings in which these discussions take place
and pre-trial motions to exclude evidence can be brought by the
defense. Cases can be resolved at any stage of the proceedings,
even during the middle of trial. Generally, about 3 to
5 percent of cases do not get resolved and a full blown trial
is conducted before a resolution is obtained. Either by
way of conviction or acquittal.
Preliminary Hearing
Only in a felony case is there the added procedure called a
preliminary hearing. At the preliminary hearing, the D.A.
must prove that the crimes were committed and that the Defendant
committed them. The burden required to prove these facts
is low and is not hard to provide at a preliminary hearing. In
fact, the D.A. is encouraged to provide as little evidence as
possible just to get the case past the preliminary hearing. The
law allows for police with specific training and experience to
speak on behalf of every witness that has personal knowledge
of the facts of the case. These witnesses may be necessary
for trial, but not at the preliminary hearing. The prelim
is an important stage of the proceedings, however, because it
allows the defense to test the efficacy of the People’s
case and reveal weaknesses in the case overlooked by the D.A. The
court can and will refuse to allow the case to continue if there
is not enough evidence presented to convince the judge that there
is a reasonable belief or suspicion that the crimes were committed
by the defendant. If the D.A. is successful in convincing
the judge there enough evidence to hold the defendant to answer
to the charges, the case will proceed to an arraignment in Superior
Court. These hearing occur only in Department 5 at the
Central Justice Center. From there, the case can be resolved
or is assigned to a trial court for further proceedings.
Trial
The trial is the readily recognized process where a jury of
12 registered voters from the community listen to the evidence
and decide what happened. If the jury is convinced unanimously
as the guilt or innocence of the defendant, the case will end. If
the jury cannot decide unanimously, the case will revert back
to the pre-trail stage and must be tried again within 60 days
if a resolution cannot be reached. A trial without a jury
is known as a court trial where the judge determines the facts
of the case. A jury trial is not allowed for infraction
offenses, juvenile cases, and some civil actions. Mr.
Grupenhagen is a big proponent of the jury trial right in that
it provides the greatest protection for criminal defendants to
have a fair hearing in front of citizens that aren’t cynical
and jaded by overexposure to the criminal law industry. In
addition, criminal clients enjoy the protection of the highest
burden of proof required in the law, that is unanimous proof
beyond a reasonable doubt!
Sentencing
Once a person is convicted by way of either a plea of guilty,
or no contest, or a verdict by a jury after trial, the case proceeds
to sentencing. This is the time at which the attorneys
provide information to the Judge to help the court decide what
punishment is appropriate in the particular case. The
law allows for the court to consider input from various sources
to help make decision about punishment. Victims, probation,
family, friends, sentencing experts, the D.A., and defense counsel
can be heard at sentencing. In addition, post-trial motions
may be brought at sentencing to send the case back to trial or
to reduce or eliminate charges or “conduct enhancements” against
the defendant.
Appeals and Post Conviction Motions
It’s not over ‘til it’s over, and then it
probably isn’t really over. The criminal law allows
for several legal methods to look back in the past and fix errors
or problems with any of the decisions made by the judges in the
case, or to go back and resurrect the case and bring it back
to the punishment stage, the trial stage or earlier. A
criminal appeal following a conviction must be filed within a
short period of time or the right to appeal is lost. Delay
is fatal to the right to appeal, because an individual convicted
of a crime has less rights that a defendant whose case hasn’t
been resolved yet. Appeals are costly and time-consuming
affairs that require a high level of expertise and are statistically
unsuccessful. Consult with our office if you want to discuss
the possibility of an appeal you may be considering.
Unlike an appeal, post conviction motions are commonly brought
and granted when an experienced criminal attorney is managing
them. Knowledge of local courts and procedure is paramount
in a motion to modify a sentence or a probation term. If
the terms of punishment are unbearable, or impossible to perform,
call our office right away so we can discuss strategies for alternatives
or requests to modify your sentence.
Conclusion
We hope this outline helps you to understand what one can expect
when facing criminal charges and accusations. This outline
applies generically also to federal cases, but there are substantial
differences in state courts and federal courts. Mr. Grupenhagen
is licensed to practice in federal court as well. Thank
you for your attention, please contact us by e-mail if this information
was helpful to you.
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