The Criminal Justice system is extremely complex and must be understood by anyone who is charged with a crime or whose family member or friend is charged with a crime. Sometimes the process can move extremely fast, so it is important to have some basic understanding of the process.
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Initial Contact with Law Enforcement
Stop or Investigation
If the police see a misdemeanor or a felony committed in their presence, they can arrest a person on the spot. If the crime is a misdemeanor that is not committed in the presence of a police officer, a citizen must report the crime. Before the police stop or investigate a person, the police must have a reasonable belief that a crime was committed. Before an arrest can be made, there must be probable cause that a crime was committed and that the accused is the person guilty.
If the police believe that evidence is needed to further the investigation, a search warrant, which is an order by a judge that authorizes the police to search for and seize evidence, must be obtained. The search warrant must be based upon probable cause, which means that there are facts to support the assumption that evidence is present where the search warrant seeks to search. A search warrant is not needed if there are exigent circumstances, which means that there is an emergency to search the place.
People have the constitutional right to remain silent until consultation with an attorney, and all suspects should make sure this right is protected. Even casual conversation, or disguised whispering, or handwritten notes can incriminate a person and justify an arrest and conviction. Police often set suspects up by placing them in a police car together or in an interrogation room alone and audio record and videotape the conversations and use it against them.
All telephone calls and visits to the jail are recorded.
If a person consents to give up any of their rights, the request will be granted by the police. If a person gives up (consents or waives the right) to a search by the police, the search is legal. If a person gives up (consents or waives the right) to be questioned by the police when they have a right to remain silent (Miranda rights), the questioning will be legal.
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Once the police arrest a person and have them at the police station, he or she will either (1) be released or (2) be charged with a crime and be required to post bail. The amount of bail is based upon the crime charged and the county’s Bail Schedule which lists the amount of bail for each charge. A police officer may file a declaration requesting that the bail be increased above the schedule.
If charges are filed, a complaint or indictment will be presented at the first court appearance and that document lists the charges filed. The charges may be exactly the same as the charges that the person was arrested for or they may change the charges, depending on the development of the evidence. The police arrest people for charges and then they file a police report with the District Attorney. The District Attorney reads the police report and files charges in court based upon the police report. The charges filed by the District Attorney may change, but they will be based upon the police report.
Once the person has an attorney, he or she will usually enter a plea of not guilty, guilty or no contest. At the beginning of the case, the plea is almost always not guilty. This gives the attorney time to evaluate the charges, obtain missing police reports, and conduct investigation.
At this early stage, the attorney may request a motion for the reduction of the bail. At a bail hearing, the judge assumes that the charges in the case are true. The reduction in the bail may be based upon an analysis of the police report, the defendant’s prior record or lack of record, employment, schooling, ties to the community, and character letters.
Pretrial or Plea
A pre-trial conference is usually a meeting between the attorneys and the judge to try to reach a resolution or plea bargain in the case.
Sometimes there are several pre-trial conferences because either side may bring additional information to try to make the resolution go a particular way.
The main purpose of the pre-trial conference is to negotiate a positive resolution of the case by showing weakness in the case and/or favorable qualities of the client.
A preliminary hearing is one of the most important hearings before trial. A preliminary hearing is a hearing before a judge where, for the first time, evidence is presented to show (1) that a crime was committed and (2) that the accused is the person who likely committed the crime. This is not a trial where the evidence must prove guilt beyond a reasonable doubt. The judge must make a finding that there is some rational ground for assuming the possibility that an offense has been committed and that the accused is guilty of the crime. If the court makes such a finding at the preliminary hearing, the case is bounded over for trial.
The defense must challenge the evidence at a preliminary hearing. This is done by thorough cross examination of witnesses for the prosecution, challenging what they claimed they saw, heard, smelled or witnessed in any way.
If the prosecution fails to present enough evidence, charges or enhancements can be dismissed. A good attorney will fight at a preliminary hearing which sends a signal to the prosecution that there will be a fight at trial.
A trial is the most important part of the criminal justice system. It determines guilt or innocence either by judge or jury. Almost all criminal trials are jury trials because the prosecution must convince 12 people of guilt beyond a reasonable doubt instead of allowing a single judge to make that decision.
A trial is war and is a life changing event to the defendant. If the defendant looses in a case where he or she is charged with a felony, the defendant can go to prison.
A defendant can only be convicted if the evidence of the charge is proven beyond a reasonable doubt. One important jury instruction explains that reasonable doubt means that if there are 2 reasonable interpretations of the evidence in the case, and one interpretation points to the defendant’s innocence and the other interpretation points to his guilt, the jury must accept the interpretation of the evidence that says that the defendant is innocent. The reason is that the defendant must receive the benefit of the doubt. Jurors should want to find a person innocent because the law presumes that everyone is innocent. A person should only be found guilty when that is the only reasonable interpretation of the evidence.
The Judge will determine the length and type of punishment for any person convicted of a crime based upon the law and/or the judge’s discretion. It is common for the defense attorney, district attorney, and judge to agree to a resolution of a case. If there is an agreement, the case can be resolved that day or be continued to another day to carry out that resolution.
The maximum punishment for a misdemeanor case is one year in the county jail and a fine.
A conviction for a felony means that a person can be sentenced to state prison. If a defendant is convicted of a felony and not sentenced to prison, he or she may serve time in the county jail for up to one year and placed on probation.
If a person is convicted of a felony and sentenced to prison, the statue relating to the crime will list the sentencing range, usually with 3 options. For example, robbery carries 2, 3, or 5 years in prison. The judge must choose the mid-term of 3 years unless there are either mitigating or aggravating circumstances, which would cause the imposition of a the higher or lower sentence. Similarly, a felony conviction of domestic violence carries either up to one year in the county jail or a prison sentence of 2, 3, or 4 years. If the defendant is sentenced to the county jail, the sentence can be from no time in jail up to one year in the county jail. If the defendant is sentenced to prison, the term will be the mid-term of 3 years unless there are mitigating or aggravating circumstances.
The Three Strikes Law applies to defendants because of certain prior convictions. A defendant with a prior “serious” or “violent” felony has a “Strike.” Strikes even apply to juveniles if the juvenile was 16 years or older at the time that the crime was committed. A defendant may receive more than one Strike in a single case if he or she is convicted of more than one serious or violent felonies in that case. Strikes do not disappear with time. No matter how old a Strike is, it can be used against a defendant.
If a person is convicted of a felony and has one Strike, the amount of prison time he faces is doubled. Thus, if a person has a Strike and is convicted of a new domestic violence charge which carries a maximum prison sentence of 4 years, the defendant now faces 8 years because of the Strike.
If a defendant has 2 prior Strikes and has a new felony of any kind, he can be sentenced to 25 years to life. The new felony does not have to be a serious or violent felony. There are ways to fight against the 25 years to life sentence, but the law does allow the sentence.