Misdemeanor: The Process from Arraignment to Appeal
The defendant may plead guilty, not guilty or no contest. If the defendant pleads guilty or no contest, he may expect to be sentenced. Very few cases are dismissed at arraignment.
At an arraignment, it is possible for the prosecution to waive or eliminate the possibility of jail time for the defendant. If there is no possibility of jail time, the defendant may not be entitled to a court appointed attorney. In addition, the defendant may not be entitled to a trial by jury. In that case, the judge would be the trier of the facts as well as the law. The defendant would most likely be tried by the judge.
Once the arraignment is completed, the defendant prepares for trial and sets a pre-trial date. At pre-trial, the prosecution may make an offer to the defendant to plea to a lesser charge or to the charged offense without suffering the maximum penalties (plea bargain).
6 things that must be done after arraignment:
- The defense attorney must vigorously defend his client's interest. Click on my
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- The defense attorney must present all options to his client with
recommendations and professional opinions.
- The defense attorney must prepare his client completely for each step in the
- The defense attorney must review all possible defense scenarios and
interview all witnesses and review evidence in support of the clients case.
- The defense attorney must develop a theme to the defense. The theme is
composed of a powerful defense strategy and a course of action to present
reasonable doubt or otherwise minimize exposure or punishments.
- The defense attorney must gather all evidence and prepare and identify any
This involves a meeting between the prosecution and the defense. Topics discussed include plea bargain opportunities, strengths and weaknesses of the prosecution's case, pretrial motions and intangible factors of the case, such as the defendant's character and past history.
The pre-trial conference is used to introduce evidence, submit motions, identify procedural issues, exchange witness lists, and plea bargain. Most cases that do not reach trial are plea-bargained at the pre-trial conference.
Each state has different rules for Trials. To list all the possible scenarios that could happen at Trial is to exhaustive a list to be referenced here. Some states provide the right to choose between a trial by judge or jury. Others do not allow the defendant a jury trial in misdemeanor cases. The number of members on a jury varies by state. However, in California one has the right to be tried by a jury of 12 of their peers.
A jury trial is the fact finding phase of the case. It is the in-court examination and resolution of a criminal case. At the trial a decision will be reached as to the innocence or guilt of the defendant. Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will prevail. The trial begins with the prosecution's opening statement. The defense attorney may also present an opening statement at this time or he may reserve his opening statement until the beginning of his case-in-chief. The prosecution presents his case to support the charges and then rests. The defense presents his case to refute the charges and then rests. Closing arguments by both the prosecution and defense conclude the presentation part of the trial. The jury then deliberates innocence and guilt.
In a trial, expect the following to occur:
- Jury selection
- Opening statements are presented by both the prosecution and the
- The prosecution presents their case
- The defendant cross examines
- The defense presents their case
- The prosecution cross examines
- Closing arguments are presented by both the prosecution and the
- The prosecution, defense and judge decide on specific instructions to
- The judge instructs the jury on rules
- The jury deliberates
- The jury submits their verdict
Acquittal/Not Guilty Verdict
The two words every defense attorney loves to hear - "Not Guilty." The next best two in line are "case dismissed."
The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court. In addition, in some jurisdictions the court may ask for a report from the probation department prior to sentencing the defendant.
7 things to consider regarding sentencing:
- The judge almost always determines punishment.
- The judge may be required to follow specific sentencing guidelines.
- The eighth amendment to the U.S. Constitution provides that punishment may
not be cruel or unusual.
- Factors such as no criminal history, a good public record, and professional or
personal responsibilities may persuade the judge to provide a lighter
- A previous criminal record, use of a dangerous weapon, gang ties, degree of
injury or financial loss, and the type of conviction may persuade the judge to
provide a harsher sentence.
- Judges almost always give repeat offenders stiffer sentences.
- If the defendant is not planning on appealing the case, this may be an
appropriate time to acknowledge responsibility in order to convince the judge
to give a more lenient sentence.
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to review specifically identified flaws in procedure with the possibility of changing the lower court's decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict.
An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court's decision. The second attempts to overturn the courts sentencing decision.
The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.
Once the trial has been completed, the facts have been decided. They can't be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper procedural issues, he may be able to win the appeal. These defects in procedure may include any of the following:
- The judges instructions to the jury were improper
- The prosecution made improper comments to the jury
- Jury tampering
- Improper introduction of evidence
The timeline of the appeals process varies from state-to-state. Some post conviction tactics to get relief for the defendant include:
- Motion for Acquittal
- Motion For New Trial
- Motion For New Sentencing
- Appeal To Appellate Court
- Appeal To State Supreme Court
- Appeal To U.S. Supreme Court
The expungement process differs from state-to-state. Expungement is a legal term for sealing the criminal record. By having a criminal conviction expunged, the conviction will be deemed not to have occurred. However, in some cases, even an expunged record is still open for law enforcement purposes. In addition, applicants campaigning for public office or applying for a federal job are required to make their conviction public even if it were expunged.
6 Facts about Expungements:
- Even when a conviction has been expunged it can still be used against the
defendant's sentence if the defendant is again convicted of a crime.
- Not all convictions are eligible for expungement. Laws differ state-by-state.
- In many states defendants can not expunge felony convictions or sex
- Convictions usually cannot be expunged until one year has passed and the
defendant has completed serving the sentence or when the probation
period has expired.
- Expungements usually may not occur if the defendant faces new charges.
- The federal law does not recognize state court expungement orders.
To find out more information about these topics, please call us direct at 323-467-6400.
Law Offices of Jeff Voll
3460 Wilshire Blvd #410
Los Angeles, CA 90010