If this is your first time being charged with a crime, chances are you may be unfamiliar with criminal court procedure and how it works. Most ask me at some point one of the following:
- How much should I expect to pay an attorney from your firm?
- How long will my case take?
- How many court appearances will I have to make?
- What decisions need to be made?
Criminal procedures are complex. Understanding how the system works will lead to more informed and better outcomes.
We base our fee on a rough estimate of how many hours of work and court appearances will be required between now and the conclusion of the case, so by laying out all the various steps in the criminal process, we hope to demonstrate why we charge what we charge and how much work is involved. In that spirit, what follows is a primer on how the criminal justice system works and the various stages of the process.
If you take advantage of our free consultation and submit all relevant documentation, then we can usually get a good idea of the overall cost. If you’re not ready to meet, then it will make sense for you to familiarize yourself with the criminal trial process.
Arrest or Citation
This is where every case starts, when law enforcement makes a decision based on probable cause that someone has committed a crime. If the alleged crime is a petty misdemeanor with little or no public safety concern, an individual will be given a piece of paper with a “Notice to Appear” which they must sign indicating that they will appear at a court date in the future, which is usually set a month to two months after the date of citation. If the charge is more serious, like a felony, or involves some immediate public safety concern, as in the cases of domestic violence or DUI, then the officer(s) will arrest you and book you into county jail. For DUIs, this means a sobering period for release the following day. For domestic violence cases, this can be until you are arraigned on the charge in a day or two.
The arresting officer will generate a report and forward it to the prosecutor’s office, which in most cases is the District Attorney, for filing of charges. If you’re looking to hire an attorney to defend you, you’ve already gone through this part of the process.
Even before the first court date, a proactive defense attorney can sometimes persuade the DA with evidence, like witness statements, or mitigating facts, like the defendant’s good character, that charges are unnecessary, or that they should be reduced from the charges cited at arrest. This is one of the reasons it makes sense to hire a defense attorney right away, rather than wait until after charges have been filed.
This is the first court appearance for every defendant on their case, and it is where a judge informs you of the charges that have been filed by the District Attorney’s Office. The charges are called a “complaint”. If you are charged with a misdemeanor, you can have an attorney represent you at your arraignment and accept the complaint and initial discovery package (the police reports) on your behalf without you appearing. An attorney appearing for their client on misdemeanors is called a “Penal Code 977 appearance”. On most misdemeanors, you must be arraigned within one year of the date of the incident which gives rise to the charges or you have grounds to dismiss the case for violating your constitutional “speedy trial” or “Serna” rights.
At your arraignment is also where bail hearings happen, and bail can either be reduced or raised, or the defendant may be released on their own recognizance (OR), otherwise known as a promise to appear, at a future date. For more serious cases, whether you are released OR or have bail set lower than the typical schedule for your charged offense, depends on how well your lawyer argues the unique circumstances of your case, and your character, to the judge. In some cases, like those involving fraud or drug sales, a judge may make you prove that the source of your bail funds is clean before you can post bail. Most importantly, at arraignment is where you often receive your first offer from the prosecutor to which you must enter a plea of “Guilty”, “No Contest”, or “Not Guilty”.
What is a plea?
A plea is the defendant’s response to being charged. Guilty pleas and No Contest pleas (also called “Nolo Contendere” pleas) are treated the same by the court, and effectively end the litigation of your case and find you guilty of the charges to which you plead. Assuming the defendant or the defendant’s lawyer and prosecutor have already agreed upon a sentence, the judge will sentence the defendant at the time of the plea. If the sentence involves jail, the defendant may be given time to report, or if they are already in jail, they will be told to serve the remainder of their sentence “forthwith”, meaning now. If you have served any jail while your case was pending, you will be given credit for each day served towards your sentence. In California, credits are calculated at a rate of 2 to 1, so for every two days served, you receive four credits.
A Not Guilty plea tells the arraignment judge to set the case for additional settlement conferences or trial. Entering a Not Guilty plea does not prohibit you from later changing your plea to a Guilty or No Contest plea. A Not Guilty plea may be entered in cases where you have a defense and the case needs to go to trial, but it is also entered in cases where there is simply too much work to be done on a case for it to be clogging up the arraignment court.
What does it mean to “waive time”?
Upon entering a not guilty plea, you or your attorney may be asked about whether you will “waive time”. If you are out of custody on a misdemeanor, you have a speedy trial right that has been defined by statute to be no more than 45 days after you enter your Not Guilty plea. Unless you waive this right to a judge, they must make sure your trial starts by the end of the 45th day from the date of the plea. If you are in custody on a misdemeanor, unless you waive time, the time limit is 30 days. If you are being arraigned on a felony, you have a right to a preliminary hearing within 10 days, and a trial no later than 60 days.
So why might you want to waive time? Police forward their initial investigation to the prosecutor, so they have a bit of a head start on a case, and in order to investigate it thoroughly, a defense attorney may need the time to interview multiple exculpatory witnesses, review video or audio evidence, or hire an expert. In some cases, especially if you are out of custody, it might make sense to schedule a trial within a known work or school break, which you can’t always do if you demand a trial “within time”.
In other cases, pushing the case to trial quickly can provide a strategic advantage. If you initially waive time, you can later “pull the time waiver” or start the clock and set a last day for trial. Pulling the time waiver works based on slightly different time calculations than what was explained above, but has the similar effect of setting a time definite when the trial must commence. Note that along with deciding how to plead and whether to go to trial, the right to a speedy trial is a fundamental right of the defendant, and an attorney may not plead Guilty or waive time without the client’s explicit consent, often on the record.
Fourth Amendment Motion
While there are several different kinds of motions that can be filed between the time someone is arraigned and their trial, the most common motion is known as a “Motion to Suppress Evidence” (or “suppression motion”). This is where your attorney challenges an aspect of the police investigation or search for violating your Fourth Amendment right against unlawful searches and seizures. When a suppression motion is filed, the case is set for a hearing where, usually, the arresting officer testifies about the search and is cross-examined by the defense attorney. Although the burden of proof is on the prosecution to prove that the search was lawful, they only need to prove so by a “preponderance of the evidence”, or just more than 50%.
Unless the defendant can prove that the officer is lying, knowing the particular nuances of Fourth Amendment case law is what will win the day at these hearings. Depending on the timing and egregiousness of the officer’s Fourth Amendment violation, a defense victory at a suppression hearing means all or some of the evidence gathered by the officer will be excluded from any later trial against the defendant. This is known as the “Exclusionary Rule” and it can apply to all evidence that is considered to be tainted by the illegal search (also called “the Fruit of the Poisonous Tree” doctrine). This can often result in outright dismissals, and if not, may tip a great deal of leverage back to the defense to get better deals for their clients.
In addition to suppression motions, there are several other types of motions that can be filed, including motions for access to police personnel records (also called Pitchess motions) to look for incidents of excessive force or bias, speedy trial motions, and even motions to dismiss based on withheld evidence.
In DUI cases, if the cop alleges that you drove with a blood alcohol content (BAC) at or above .08 percent, or they allege that you refused to submit to a chemical test, you will face an administrative hearing where the DMV will attempt to suspend your license for a year (or longer if you have priors). Although these administrative DMV hearings are not part of the criminal case, they can have a significant impact on your life, and the outcome of your criminal case. This is one area where a public defender will not give you the same scope of representation as a private attorney, because they are not tasked with handling DMV hearings. A competent private attorney, on the other hand, will represent you including at your DMV hearings, and can utilize the DMV hearings to establish facts that might be useful for your criminal trial later on.
If your case is a felony, you have the right to a preliminary hearing where the prosecutor has to establish through the testimony of an investigating officer that there is probable cause you committed the alleged offenses, and that a jury should hear the case. If there is insufficient evidence to establish probable cause, your attorney can ask the judge to dismiss your case at the preliminary hearing. Although cases are infrequently dismissed at the preliminary hearing, this is also an opportunity for your attorney to poke holes in the prosecutor’s case and ask the judge to reduce your case from a felony to a misdemeanor. If the DA feels their case is not as strong as they initially thought, they will sometimes dismiss the felony charges following a preliminary hearing rather than go forward on a weakened case.
Between the time you are arraigned and the date of trial, the judge will set one or more court appearances for your attorney to meet with the DA and discuss the possibility of settlement. The vast majority of criminal cases in California resolve this way. Even though these conferences are designed to see if there is a possibility of a plea bargain, they are also a useful opportunity for your attorney to highlight your good character and plant seeds of doubt in the mind of the prosecutor so that the prosecutor considers dismissing.
If negotiations reach a stalemate and the prosecutor feels there is enough evidence to proceed with a trial, the last step is to take the case in front of a jury of twelve persons from the community. Before the trial begins, there are usually additional motions made about what evidence can and cannot be introduced to the jury. Most misdemeanor trials last between a week to two weeks, whereas complex felonies may last several weeks. If you are found Not Guilty your case is done, and you suffer no penalty. If you are found Guilty, there is still the opportunity for your attorney to argue for a fair sentence. If the jury cannot come to a verdict and is deadlocked (also called a “hung jury”), then the case is either dismissed or set for a re-trial. In the case of a deadlocked jury, the prosecutor usually only gets one or two chances to prove their case, so anything other than a conviction will frequently result in a dismissal.
Depending on the case, your sentence can range from community service, fines, probation, drug treatment, county jail or prison time. Having an attorney that knows how to shine the best light on you and your case can make an enormous difference in the kind of sentence you receive. Sometimes the best an attorney can do on a tough case is argue for leniency.
If you lose your trial, you have the right to appeal the verdict based on some error made by the judge, the prosecutor, the jury, or your attorney.
Whether you plead guilty or are found guilty following a trial, once you complete a substantial period of probation and have stayed out of trouble, your attorney can make additional motions. If your case is a felony, your attorney can make a motion to have your conviction reduced to a misdemeanor, and if your case is a misdemeanor or infraction, your attorney can ask the court to have it expunged.
The above-listed stages are a brief overview of how the criminal justice system looks from a birds-eye view. We calculate our fees based on an estimate of how many court appearances are required, how many motions we will need to write, and how much investigation and research is needed to competently defend our clients. All of these factors also depend on the seriousness of the charges.
At each of these steps along the way there is an opportunity to win an argument and increase your odds of a positive outcome. We take pride in the responsibility to represent each of our clients at every stage of the process and vigorously defend their case.