Felony: The Process from Arraignment to Appeal
The arraignment in a felony trial follows the same process as in a misdemeanor trial. Bail and identity are established, charges are ascertained and the attorney of record is confirmed. An arraignment is a virtual formality prior to trial. Very few cases are dismissed at arraignment.
6 things that must be done after arraignment:
- The defense attorney must vigorously defend his client's interest. Click on my results page to see how we get things done.
- 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 legal process.
- 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 witnesses.
This involves a meeting between prosecution and defense. Topics discussed in most states include plea bargain opportunities, strengths and weaknesses of the prosecutions case, and intangible factors of the case, such as the defendant's character and past history.
Preliminary Hearing ("Mini-Trial")
At the preliminary hearing the judge determines whether sufficient evidence exists to send the case to the upper court for trial. The judge reviews:
- Whether there is probable cause to believe a crime was committed, and
- Whether there is probable cause to believe the person in front of the court is the one who committed the crime.
Rarely does a judge overturn the prosecution and dismiss the case. In fact, the prosecution or judge can add additional charges to the case at this hearing. The length of a preliminary hearing varies by state. It may last three hours. It may last three questions.
The defense attorney can use the preliminary hearing as a strategy session. The standard of proof is lower during the preliminary hearing than the trial. The preliminary hearing is utilized by the judge to ensure there is sufficient evidence to review the case. The preliminary hearing assesses reasonable doubt and the facts of the case.
8 things to expect at the preliminary hearing:
- Preliminary hearings are shorter than trials.
- The preliminary hearing is not a finding of fact.
- The goal of a preliminary hearing is to screen the prosecution's case.
- The prosecution is only required to show "probable cause" at the preliminary hearing.
- The preliminary hearing will be conducted in front of a judge. No jury will present.
- Although the defendant may be held to answer for trial, that does not the defendant is guilty.
- Neither the prosecution or defense will present their whole cases; they want to save their case strategies for the trial.
- Cross examination of police officers or witnesses will occur.
Superior Court Arraignment The defendant is arraigned and pleads guilty, not guilty or no contest. At the arraignment, the identity of the defendant is confirmed, bail is established, charges are ascertained and an attorney of record is confirmed.
The pre-trial conference is a formal setting where plea bargaining occurs. The prosecution may offer alternative sentencing. The charge may be changed to a lesser charge. The number of felony counts may be dropped. A lesser punishment for the same charge may be agreed upon.
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.
Expectations at the pre-trial conference:
- The defense presents a legal case on behalf of the defendant.
- Further discovery takes place.
- Factual and legal evidence is established.
- Debate over sufficient evidence occurs.
- Review on whether the facts are sufficient occurs.
- Strengths and weaknesses of witnesses are examined.
- Issues with the evidence are submitted.
- Motions may be made and heard.
Sample motions the defense attorney can file and argue at a pre-trial conference:
- To Suppress evidence based on a Violation of the Defendant's Constitutional Rights
- To Dismiss the information and complaint
- To Compel discovery
- To Sever counts
- To Dismiss for Lack of a Speedy trial
- To Modify or reduce bail
- Bill of particulars
- To Reduce charges
- To Change Venue
- To Strike a prior conviction
- To Preserve evidence
- To examine a police file
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 defense
- 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 defense
- The prosecution, defense and judge decide on specific instructions to the jury
- The judge instructs the jury on rules
- The jury deliberates
- The jury submits their verdict
Acquittal/Not Guilty Verdict
The two words every criminal defense attorney loves to hear - "Not Guilty." The next best two in line are "case dismissed."
Sentencing is a court hearing where the judge determines punishment. 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.
A defendant may be sentenced to Probation instead of prison/jail. However, he/she may be ordered to do some local custody time as a term of his or her probation. If a person violates his/her probation, he/she may be incarcerated. Formal probation is when an individual is supervised by a probation officer. Informal or summary probation is unsupervised.
If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the low term, mid term, and high term. Lawyers argue about the proper term based on the facts of the particular case. The final word is within the judge's broad discretion.
Sentencing modifications occur when part of a person's sentence becomes inapplicable to their case. For example: Suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to "modify" the man's sentence.
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 sentence.
- 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.
Circumstances That Can Adversely Affect Sentencing:
- Previous Criminal Record.
A defendant's past record is a large consideration when determining an alternative or lesser sentence within the lower end of the sentencing guidelines. A previous record can also affect the level of security of the facility that the defendant will be sent to as a result of sentencing. Most correctional facilities use a point system unfavorable to repeat offenders costing them time deducted from their sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of penitentiaries.
Most states carry statutes which call for stiffer penalties if a defendant's crime involves the use of a dangerous or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. Enhancements generally increase the sentencing penalties. In some states, enhancements are not a separate charge and are considered part of the primary offense such as armed robbery.
Some alternatives to jail that might be negotiated are:
- Detox Programs
- Electronic Home Monitoring
- Residential Treatment Centers
- Weekend Work Programs
- Community Service
Collateral Consequences of a Conviction
In addition to any sentence imposed by the court, a conviction can have a number of independent consequences. On felony cases, these consequences can include, but are not limited to:
- Loss of the right to vote.
- Loss of the right to possess a firearm of any kind.
- Loss of the right to associate with known criminals.
- Registration as a sex offender.
- Increased penalties for future criminal convictions.
- Registration as a narcotics offender.
A conditional release from prison entitles a person receiving it to serve the remainder of his/her term outside of prison, but technically the person will still be under the Department of Corrections. Typical conditions of parole can include:
- Periodic meetings with parole officers.
- Foregoing the possession of weapons and not associating with known criminals.
- Staying away from designated areas
- Drug testing
To find out more information about these topics, please call us direct at 323-467-6400.