Stages of a California Criminal Case - Misdemeanor & Felony
This article is about the stages of a criminal case under California law. The principles outlined in this article are generally reflected in the criminal law throughout the United States, though terminology and timelines will vary some.
1. ARREST
a. Misdemeanors
In California, a misdemeanor criminal case begins with an arrest. You know they have been arrested when, either, you have been taken into actual custody by the police (i.e., hand-cuffed, booked and held in a cell), or you have been given a citation and a notice to appear in court.
If you have been formally arrested, you will usually appear in court for the first time within two (up to) five days. You will have an opportunity to post bail under a bail schedule pre-set by the courts in the county where you were arrested.
If you have been given a citation and a notice to appear, you will usually be given thirty to sixty days. Failure to appear will result in a bench warrant, and a higher bail. If you are arrested on a bench warrant, you will fight your case from jail.
b. Felonies
In felony cases, there is almost invariably an actual custody arrest of the defendant. You will still have the option of posting bail; bail will be high, probably over $50,000 up to more than $1,000,000, depending on the severity of the charges.
2. ARRAIGNMENT
a. Misdemeanors
When you appear in court for the first time, you are at what is called an "arraignment." At this proceeding, your attorney will probably plead "NOT GUILTY!" on your behalf, set a pre-trial conference, and enter either a demand for a speedy trial or a "general time waiver." Usually, judges set trial dates when people do not "waive time"
In misdemeanor cases, if you appear at arraignment in the custody of the local sheriff, you have the right to a jury trial within thirty days. If you appear from a citation, out of custody, then you have the right to a jury trial within forty-five days. This is California's statutory implementation of your constitutional Sixth Amendment right to a speedy trial. You also have the right to determination of probable cause to arrest you pursuant to Penal Code section 991 (only in custody defendants have this right).
Some motions can be heard at arraignment. You can ask for "own recognizance" release or "O.R." You also have the right to ask for bail or a bail reduction. In certain circumstances your lawyer may want to wait to ask for a reduction in bail by requesting a formal bail hearing where witness are called to testify and evidence is presented to prove you are not dangerous or a flight risk.
You will also have the right to "demurrer" to the complaint (ask your lawyer what this means). Many times, it is advisable request particular items of evidence on the record. Prosecutors and defense attorneys will often exchange "informal discovery requests."
b. Felonies
In felony cases, the speedy trial rules are devised differently. First, you have the right to speedy "preliminary hearing" within ten court days or sixty calendar days. If your hearing is not within ten court days and you did not waive time, your case does not get dismissed. However, if your hearing is not held within sixty calendar days and you did not waive time, then your case will get dismissed.
You have the same rights to the various motions that are normally heard at arraignment in felony cases that you do in misdemeanor cases.
3. PRE-TRIAL (OR PRE-HEARING) CONFERENCE
In misdemeanor cases, you will usually have a pre-trial conference date (which can also double as a discovery compliance) date. At this time, the prosecutor will offer you a deal, and the plea bargain negotiations will begin. Your lawyer may want to set dates for more motions (i.e., motion to suppress).
In felony cases, you will receive your plea bargain offer from the district attorney at a "pre-hearing conference." This is a date set prior to the preliminary hearing where the prosecution pressures the defendant to take a deal by threatening to make the offer worse after the preliminary hearing. It's usually not advisable to take a deal at such an early stage.
4. PRELIMINARY HEARING (Felony Cases Only)
In felony cases, the most important pre-trial hearing is the "preliminary hearing" (otherwise known as "preliminary examination" or simply "PX"). At this hearing, the prosecution calls witnesses and present evidence to prove to the judge that there is enough evidence collected to make it worth while for the court to hold a jury trial.
It's the defense lawyer's job at this hearing to cross-examine each witness thoroughly.
If the judge agrees with the prosecution, he will "hold the defendant to answer" (otherwise known as a "holding order"). This means that the charge will not be dismissed and the defendant will have to come back to court for a second arraignment, called the "arraignment on the felony information."
5a. GRAND JURY
In really important felony cases, the district attorney calls the "Grand Jury" to secret proceedings where witnesses are called and neither the defendant and defense lawyer are present. Grand Jury proceedings are expensive, cumbersome, time-consuming, and are usually reserved for very complicated or sensitive cases. Findings of the grand jury are presumptively valid; yet, there are procedural challenges a defense lawyer can make.
5b. FELONY ARRAIGNMENT
In felony cases only, after the preliminary hearing, the prosecution files a second document called the "felony information." If there has been Grand Jury proceedings the document is called and "indictment."
At the felony arraignment, defense counsel will usually set a date for a motion to dismiss pursuant to Penal Code section 995, sometimes a motion to suppress pursuant to Penal Code section 1538.5, discovery compliance date, there will be a readiness conference date set pertaining to trial, and a trial date will be set.
You will have the right to a speedy trial from this date as well. If the prosecution and the court does not begin your jury trial within sixty calendar days, and you have not entered a "general time waiver" or a "limited time waiver," then your case will have to be dismissed (with some exceptions).
6. PRE-TRIAL MOTIONS
There are a number of pre-trial motions that may be heard prior to the start of jury trial. I mentioned those in previous sections.
7. READINESS OR PRE-TRIAL CONFERENCE
Shortly prior to trial in both misdemeanor and felony cases, when there has been time to investigate prepare cases, there is another more negotiation conference between lawyers and the judge.
If the case has not settled prior to this time, it means that the case is probably headed for a jury trial. The judge will try to encourage settlement of the case with a longer meeting with the lawyers. He or she will mediate actively to convince each side that their chances of winning are not as good as they think. Sometimes judges will tell prosecutors that he or she will not impose a heavy sentence; sometimes he or she tell the defense lawyer that he or she will drop the hammer on his or her client.
8. JURY TRIAL
In both misdemeanor and felony cases, a defendant has the right to a jury trial.
The first stage of a jury trial is the process of in limine motions. These motions set the stage for the trial, where the judge rules on what evidence is going to come in, and what is not. Here both sides are required to disclose all their witnesses and evidence in full.
The second stage is jury selection. Arguably, this is the most important stage of a jury trial, because the people selected for the role can decide between life or death, or freedom and incarceration. All good trial lawyers know that trials are won or lost at this stage.
Once jury selection is over, the prosecution and defense attorney give opening arguments. In some cases, defense counsel will opt to reserve opening statement until the prosecutor's case is over. It's usually a good idea to wait when the prosecutor seems to be hiding something or when defense counsel is having a hard time preparing a defense. One can win some time to find that key piece of evidence or prepare a better defense theory.
As Mark Geragos learned, it's not a good idea to over-promise and under-deliver. He did have a very difficult case to defend. One way he could have helped himself would have been give his opening statement after the prosecutor's were finished. Then he would have been able to tie in all their mistakes into a compelling opening statement.
Defendant is not required to put on a case at all. Many legal commentators agree that Mr. Geragos would have been better off in his defense of Scott Peterson if he would not have presented any defense, rested as soon as the prosecution finished, and began closing arguments about the numerous reasonable doubts. It would have been the kind of bold and risky move that he is known for; except, this one might have worked.
Once both sides are finished closing, the judge reads alout a long set of instructions and the jury begins its deliberations. Sometimes, this can take a long time; sometimes it can take very little time at all.
When the jury reaches its verdict, the foreman of the jury hands the verdict form to the bailiff, the bailiff to the clerk, and the clerk reads out the verdict.
In capital cases, there is another stage, called the "penalty phase." This is where the jury decides whether the defendant will live or die.
9. SENTENCING
If you are found "NOT GUILTY," then you are free to go and you do not reach this stage. If you are found guilty, the judge will set a date for sentencing. At sentencing, usually the judge takes the probation department's recommendation, recommendations from other judges who have seen the case, and makes his own decisions.
Usually, probation is ordered, and often jail or prison time. The judge will either order a surrender date or order that the convicted person be "remanded" (taken) into custody. Sentencing law is very complicated in California, and is beyond the scope of his summary.
CONCLUSION
Sentencing is the last stage of a criminal case. There are many variations on this example, such as, when the defendant has prior convictions and is on probation or parole. Then, the case probably a "violation of probation / parole" case, where defendant's rights are very different, and so are the procedures.
1. ARREST
a. Misdemeanors
In California, a misdemeanor criminal case begins with an arrest. You know they have been arrested when, either, you have been taken into actual custody by the police (i.e., hand-cuffed, booked and held in a cell), or you have been given a citation and a notice to appear in court.
If you have been formally arrested, you will usually appear in court for the first time within two (up to) five days. You will have an opportunity to post bail under a bail schedule pre-set by the courts in the county where you were arrested.
If you have been given a citation and a notice to appear, you will usually be given thirty to sixty days. Failure to appear will result in a bench warrant, and a higher bail. If you are arrested on a bench warrant, you will fight your case from jail.
b. Felonies
In felony cases, there is almost invariably an actual custody arrest of the defendant. You will still have the option of posting bail; bail will be high, probably over $50,000 up to more than $1,000,000, depending on the severity of the charges.
2. ARRAIGNMENT
a. Misdemeanors
When you appear in court for the first time, you are at what is called an "arraignment." At this proceeding, your attorney will probably plead "NOT GUILTY!" on your behalf, set a pre-trial conference, and enter either a demand for a speedy trial or a "general time waiver." Usually, judges set trial dates when people do not "waive time"
In misdemeanor cases, if you appear at arraignment in the custody of the local sheriff, you have the right to a jury trial within thirty days. If you appear from a citation, out of custody, then you have the right to a jury trial within forty-five days. This is California's statutory implementation of your constitutional Sixth Amendment right to a speedy trial. You also have the right to determination of probable cause to arrest you pursuant to Penal Code section 991 (only in custody defendants have this right).
Some motions can be heard at arraignment. You can ask for "own recognizance" release or "O.R." You also have the right to ask for bail or a bail reduction. In certain circumstances your lawyer may want to wait to ask for a reduction in bail by requesting a formal bail hearing where witness are called to testify and evidence is presented to prove you are not dangerous or a flight risk.
You will also have the right to "demurrer" to the complaint (ask your lawyer what this means). Many times, it is advisable request particular items of evidence on the record. Prosecutors and defense attorneys will often exchange "informal discovery requests."
b. Felonies
In felony cases, the speedy trial rules are devised differently. First, you have the right to speedy "preliminary hearing" within ten court days or sixty calendar days. If your hearing is not within ten court days and you did not waive time, your case does not get dismissed. However, if your hearing is not held within sixty calendar days and you did not waive time, then your case will get dismissed.
You have the same rights to the various motions that are normally heard at arraignment in felony cases that you do in misdemeanor cases.
3. PRE-TRIAL (OR PRE-HEARING) CONFERENCE
In misdemeanor cases, you will usually have a pre-trial conference date (which can also double as a discovery compliance) date. At this time, the prosecutor will offer you a deal, and the plea bargain negotiations will begin. Your lawyer may want to set dates for more motions (i.e., motion to suppress).
In felony cases, you will receive your plea bargain offer from the district attorney at a "pre-hearing conference." This is a date set prior to the preliminary hearing where the prosecution pressures the defendant to take a deal by threatening to make the offer worse after the preliminary hearing. It's usually not advisable to take a deal at such an early stage.
4. PRELIMINARY HEARING (Felony Cases Only)
In felony cases, the most important pre-trial hearing is the "preliminary hearing" (otherwise known as "preliminary examination" or simply "PX"). At this hearing, the prosecution calls witnesses and present evidence to prove to the judge that there is enough evidence collected to make it worth while for the court to hold a jury trial.
It's the defense lawyer's job at this hearing to cross-examine each witness thoroughly.
If the judge agrees with the prosecution, he will "hold the defendant to answer" (otherwise known as a "holding order"). This means that the charge will not be dismissed and the defendant will have to come back to court for a second arraignment, called the "arraignment on the felony information."
5a. GRAND JURY
In really important felony cases, the district attorney calls the "Grand Jury" to secret proceedings where witnesses are called and neither the defendant and defense lawyer are present. Grand Jury proceedings are expensive, cumbersome, time-consuming, and are usually reserved for very complicated or sensitive cases. Findings of the grand jury are presumptively valid; yet, there are procedural challenges a defense lawyer can make.
5b. FELONY ARRAIGNMENT
In felony cases only, after the preliminary hearing, the prosecution files a second document called the "felony information." If there has been Grand Jury proceedings the document is called and "indictment."
At the felony arraignment, defense counsel will usually set a date for a motion to dismiss pursuant to Penal Code section 995, sometimes a motion to suppress pursuant to Penal Code section 1538.5, discovery compliance date, there will be a readiness conference date set pertaining to trial, and a trial date will be set.
You will have the right to a speedy trial from this date as well. If the prosecution and the court does not begin your jury trial within sixty calendar days, and you have not entered a "general time waiver" or a "limited time waiver," then your case will have to be dismissed (with some exceptions).
6. PRE-TRIAL MOTIONS
There are a number of pre-trial motions that may be heard prior to the start of jury trial. I mentioned those in previous sections.
7. READINESS OR PRE-TRIAL CONFERENCE
Shortly prior to trial in both misdemeanor and felony cases, when there has been time to investigate prepare cases, there is another more negotiation conference between lawyers and the judge.
If the case has not settled prior to this time, it means that the case is probably headed for a jury trial. The judge will try to encourage settlement of the case with a longer meeting with the lawyers. He or she will mediate actively to convince each side that their chances of winning are not as good as they think. Sometimes judges will tell prosecutors that he or she will not impose a heavy sentence; sometimes he or she tell the defense lawyer that he or she will drop the hammer on his or her client.
8. JURY TRIAL
In both misdemeanor and felony cases, a defendant has the right to a jury trial.
The first stage of a jury trial is the process of in limine motions. These motions set the stage for the trial, where the judge rules on what evidence is going to come in, and what is not. Here both sides are required to disclose all their witnesses and evidence in full.
The second stage is jury selection. Arguably, this is the most important stage of a jury trial, because the people selected for the role can decide between life or death, or freedom and incarceration. All good trial lawyers know that trials are won or lost at this stage.
Once jury selection is over, the prosecution and defense attorney give opening arguments. In some cases, defense counsel will opt to reserve opening statement until the prosecutor's case is over. It's usually a good idea to wait when the prosecutor seems to be hiding something or when defense counsel is having a hard time preparing a defense. One can win some time to find that key piece of evidence or prepare a better defense theory.
As Mark Geragos learned, it's not a good idea to over-promise and under-deliver. He did have a very difficult case to defend. One way he could have helped himself would have been give his opening statement after the prosecutor's were finished. Then he would have been able to tie in all their mistakes into a compelling opening statement.
Defendant is not required to put on a case at all. Many legal commentators agree that Mr. Geragos would have been better off in his defense of Scott Peterson if he would not have presented any defense, rested as soon as the prosecution finished, and began closing arguments about the numerous reasonable doubts. It would have been the kind of bold and risky move that he is known for; except, this one might have worked.
Once both sides are finished closing, the judge reads alout a long set of instructions and the jury begins its deliberations. Sometimes, this can take a long time; sometimes it can take very little time at all.
When the jury reaches its verdict, the foreman of the jury hands the verdict form to the bailiff, the bailiff to the clerk, and the clerk reads out the verdict.
In capital cases, there is another stage, called the "penalty phase." This is where the jury decides whether the defendant will live or die.
9. SENTENCING
If you are found "NOT GUILTY," then you are free to go and you do not reach this stage. If you are found guilty, the judge will set a date for sentencing. At sentencing, usually the judge takes the probation department's recommendation, recommendations from other judges who have seen the case, and makes his own decisions.
Usually, probation is ordered, and often jail or prison time. The judge will either order a surrender date or order that the convicted person be "remanded" (taken) into custody. Sentencing law is very complicated in California, and is beyond the scope of his summary.
CONCLUSION
Sentencing is the last stage of a criminal case. There are many variations on this example, such as, when the defendant has prior convictions and is on probation or parole. Then, the case probably a "violation of probation / parole" case, where defendant's rights are very different, and so are the procedures.