Stages Of A Criminal Prosecution
Investigatory Stage: The Arrest, Booking, Bail, and Referral to Prosecution
A criminal investigation commonly begins when a police officer, on the basis of her own observations and/or those of the informant, comes to believe that criminal activity may be afoot or has already taken place. If at this stage a suspect is identified to the police, the police will attempt to apprehend that suspect and make an arrest. According to the Fourth Amendment to the United States Constitution, the police may not constitutionally arrest a person unless they have probable cause to believe that he or she has committed a crime. Probable cause for an arrest exists when there are sufficient facts, evidence, or observations that would make a reasonable person believe that the suspect has committed the crime in question. An oral complaint to a police officer by a victim of, or witness to, a crime can be enough to support a finding of probable cause.
Even if there is insufficient evidence of probable cause, the police may stop and briefly detain a person. For this brief detention, the police must have at least a reasonable suspicion that a crime has been, is being, or is about to be committed. This reasonable suspicion must be based upon specific and articulable facts. Normally, the police can make an arrest for any felony reported to them or committed in their presence. Generally, by statute, the police cannot arrest for misdemeanors or infractions not committed in their presence (with the exception of violations of domestic violence restraining orders, domestic violence offenses, possession of a dangerous or deadly weapon within an airport, assault and battery upon a firefighter or paramedic, some driving under the influence offenses, and jail escapes). Instead, the victim or a witness to the crime may herself arrest the suspect and immediately turn the suspect over to the police, who handle transport and booking.
Once arrested, a suspect is transported to the police station, where he or she is searched and booked. Booking is where the suspect is fingerprinted and photographed. Booking is also where a police report concerning the essential facts of the crime is prepared.
After a suspect is booked, one of two things can happen: 1) the case is referred to the prosecutor for filing or 2) the suspect is released and no charges are filed because the watch sergeant, watch commander, or other law enforcement supervisor decided that there is not enough evidence to refer the case for prosecution.
BAIL: Your get out of jail card!
Bail is a process through which an arrested criminal suspect deposits or pledges to a court a set amount of money to obtain release from police custody. As a condition of release, the suspect promises to appear in court for all scheduled criminal proceedings -- including arraignment, preliminary hearing, pre-trial motions, and the trial itself. If the suspect fails to appear in court as scheduled, he or she will be subject to immediate arrest, and any bail amount paid will be forfeited. If a case is referred for prosecution, an amount of presumptive bail is set. This amount is listed in the county-wide bail schedule for the offense charged.
After you are arrested and booked, you can obtain your release from police custody by paying the presumptive bail amount in cash or by acquiring a bail bond whereby the bonding company promises to pay the bail amount to the court if you fail to appear. If the offense for which you were arrested is a misdemeanor and you can positively identify yourself, the police may "cite you out"—i.e., release you without bail upon your written promise to appear at court for arraignment.
Referral for Prosecution
After booking, the case is referred to the prosecutor for the filing of charges. The prosecutor reviews the police report and determines which offense(s) the defendant committed.
The prosecutor may refuse to file charges if, after reviewing the police report or talking to the arresting officers, she determines that there is insufficient evidence of a crime. If so, then the defendant is released. Otherwise, the prosecutor prepares and files with the appropriate court a criminal complaint accusing the defendant with the commission of one or more crimes. The complaint is then assigned a case number and a date for arraignment is set.
Adjudicatory Stage: Arraignment to Trial
Phase 1: Arraignment, Your First Court Appearance
An arraignment is the process by which the accused is brought before a court to hear and answer criminal charges made against him or her. Whether you are in or out of police custody, your personal and timely presence is required at an arraignment.
Six things occur at an arraignment:
You are advised of your constitution rights
Counsel is appointed
The charges are read to you and a copy of the complaint is provided to you and/or your counsel
You are invited to enter a plea to the charges
The court determines your bail amount. This amount may be different from the presumptive bail amount initially set when your case was referred for prosecution. As explained below, you are entitled to have a separate bail review hearing within three days of the arraignment.
A date for your next court appearance is set. As discussed later, this next date may be a preliminary hearing if at least one of the charges is a felony or a pretrial hearing if the charge[s] is a misdemeanor.
Phase 2: Bail Review/OR
The second phase in the adjudicatory stage is bail review. The accused is entitled to bail review within three days of the arraignment. At bail review, the judge confirms or reduces the amount of bail set at arraignment.
You need not post bail if the court releases you on your own recognizance. In that case, you simply submit to the court a written promise that you will appear at your next court hearing. This phenomenon, known as the "O.R. (Own Recognizance) Release," is granted to a defendant who is neither a danger to the community nor a flight risk. In granting O.R. Release, a judge also considers the seriousness of the offense with which the defendant is charged, any prior failures to appear (even for traffic tickets), any previous criminal records, and the defendant's connections to the community. If the judge denies you O.R. Release, your attorney should request a lower bail amount.
Phase 3: Disposition Conference
The third phase in the adjudicatory stage is the Disposition Conference or what some courts call a settlement conference. Set right before the preliminary hearing, the disposition conference is a good opportunity to resolve the case through a plea bargain. At the disposition conference, your attorney can obtain from the prosecutor and law enforcement all necessary information—i.e., discovery—for your defense. This material includes a copy of the complaint, the police report, any statements made to the police by the defendant, and any scientific reports (such as breath alcohol test results in a DUI case).
Phase 4: Preliminary Hearing
The fourth phase in the adjudicatory stage is the preliminary hearing, a relatively informal hearing held without a jury and before a magistrate (a judge or a commissioner sitting as a judge pro-term). If the defendant is charged with a felony, he or she is entitled to a preliminary hearing before a judicial officer within 10 court days of arraignment. (Persons charged with only misdemeanors are not entitled to a preliminary hearing.) Usually, it is in your best interest to set this date as far out as possible to allow your attorney time to attempt to settle your case or to adequately prepare a defense.
The purpose of the preliminary hearing is to weed out weak or unmeritorious charges. In accordance with this purpose, the prosecutor must demonstrate probable cause that the defendant committed the crime in question. This evidentiary standard is relatively easy to meet, and is far less than the "beyond a reasonable doubt" evidentiary standard used at trial. The defendant therefore may be held to answer upon evidence that would be insufficient to sustain a conviction at trial.
The number one goal for your attorney at the preliminary hearing is to get the charges dismissed. This goal, however, is rarely accomplished due to the fact that the prosecutor only has to make the required showing of probable cause. The number two goal for your attorney at the preliminary hearing is to test the strengths of the prosecution's case. The number thee goal for your attorney at the preliminary hearing is to weaken the prosecution's case by exposing the inconsistencies in the story and evidence put forth by the prosecutor. The fourth goal is to set up your defenses to the case.
If the prosecutor makes the required evidentiary showing at the preliminary hearing, the defendant is said to be "held to answer." That is, he or she must stand trial on the charges. (This is sometimes referred to as being "bound over" for trial.) Occasionally, the magistrate is not satisfied that the prosecutor has met the required evidentiary standard. In that case, the magistrate dismisses some or all of the charges. The magistrate may also reduce a felony charge to a misdemeanor charge if the offense at hand is a wobbler. An example of such an offense is unlawful possession of methamphetamine, a violation of Health and Safety Code section 11377(a). If, after hearing the evidence at the felony preliminary hearing, the magistrate decides that the amount of methamphetamine is quite small and that the defendant had no other criminal record, the magistrate might choose to reduce the charge to a misdemeanor. If so, the case proceeds along the misdemeanor track.
If all charges are dismissed at the preliminary hearing, the defendant is discharged and, if in custody, immediately released. If only some charges are dismissed, the defendant is "held to answer" on the remaining charges. The prosecutor may, however, immediately re-file the dismissed charges, in which case the defendant is rearrested and a new preliminary hearing is held within 10 court days. If the charges are again dismissed by the judicial officer, the defendant is again discharged. In that case, the prosecutor may not, barring a few exceptions, re-file the charges a third time.
Phase Five: Arraignment in Trial Court and Pretrial Conference
When the defendant is held to answer to a felony charge, the case is transferred to the trial division. There, the prosecutor files a new document called an "Information" which contains the offenses the defendant is accused of committing. The defendant must be arraigned on the Information within 15 days of being held to answer. This fifth step in the pretrial phase is the second arraignment or the arraignment on the information.
At the arraignment on the information, all of the procedures that occurred at the initial trial arraignment occur again. The defendant again enters a plea, and if the plea is "not guilty," the case is set for pretrial hearings and trial. Again, the prosecutor may offer the defendant a "deal" to resolve the case without a trial. If the defendant accepts the deal, then a guilty plea is taken, and the matter is put over for two to four weeks to obtain a sentencing report from the county Probation Department. If the defendant refuses the deal, trial must commence within 60 days of the arraignment on the information, unless the defendant requests or agrees to a longer gap.
The arraignment on the information is usually followed by a pretrial conference. There, your attorney will have the opportunity to continue discussions with the District Attorney in an attempt to reach a plea bargain, if that is what you and the attorney are seeking. Possible favorable dispositions may include the following: A plea bargain that would strike a prior conviction; a plea bargain that would strike a prior serious felony; a plea bargain that would reduce the charge from a felony to a misdemeanor; a plea bargain that would reduce the charge from a serious or "strike" offense to a simple felony.
If the case is not resolved at the pretrial hearing, the court may set additional pretrial hearings. Eventually, a final pretrial hearing, called a readiness conference, is set.
Phase Six: Pretrial Readiness Conference
A readiness conference, sometimes called a settlement conference, is set out thirty to forty-five days past the second arraignment. At this conference, the parties make a final attempt to resolve the case by a plea bargain and/or discuss any issues pertaining to readiness for trial.
Phase Seven: Pretrial Motion Hearings
The seventh phase in the adjudicatory stage is the pretrial motion hearings. Typical motions in a criminal case include the following:
Penal Code § 995 Motion to Dismiss
A 995 Motion to Dismiss will be filed by your attorney if she believes there was insufficient evidence at the preliminary hearing from which the judge could make a finding of probable cause. If the motion is granted, then the Information or part of it is dismissed.
Penal Code § 1538 Motion to Suppress
A Motion to Suppress is filed when your attorney believes that there are grounds to suppress either physical items taken from you or statements made by you.
Motion to Release Information
In certain types of felony cases, most notably sex abuse and child molestation cases, the victim's psychological and/or medical records may be relevant. A motion will be filed by your attorney to disclose that information.
Motion to Sever
In various circumstances, your attorney may wish to have your case separated from that of a co-defendant or have one or more of your charges tried separately from the other.
Phase Eight: Trial
The eighth and final phase in the adjudicatory stage is the jury trial. If you have been charged with a criminal offense, you have a constitutional right to a trial by jury whereby a panel of 12 jurors and 2 alternatives examines the evidence to decide whether, "beyond a reasonable doubt," you have committed the crime in question. You also have the right to a "bench trial" in which the judge, not the jury, decides a verdict on your case.
Defendants must be brought to trial within a specified time period. For felony cases, trial must begin within 60 days of arraignment on the information, unless the defendant consents to a later date. For misdemeanors, trial must begin within 30 days of arraignment on the complaint if defendant is in custody at arraignment, and 45 days from the arraignment if defendant is out of custody at arraignment. Defendant can consent to a later date.
There are five procedural stages to a jury trial: 1) jury voir dire (questioning and selection) 2) opening statements, 3) presentation of evidence (divided into People's case, defense case, and People's rebuttal), 4) closing arguments, and 5) verdict and sentencing.
Jury Voire-Dire (Questioning and Selection)
Jury Selection, also called "Voir Dire," is the first event of the trial. Citizens of the county in which the trial is held are summoned to court to serve as jurors. Those summoned do not include convicted felons, persons already serving as trial grand jurors, and subjects of conservatorships. Names of eligible jurors are obtained from property tax rolls, licensed driver rolls, and registered voter rolls.
On the date set for jury trial, the judge will hold a pre-voir dire conference with the lawyes. At this conference, each side will present a brief outline of its theories of the case and identify all witnesses. Then, the parties proceed to jury selection.
Jury selection begins with the judge directing the clerk to summon a panel of prospective jurors to the courtroom. In a typical criminal case, a panel consists of 30 to 35 individuals from whom a jury will be selected to try the case. Seated at the gallery, the panel members are welcomed by the judge and administered an oath to truthfully answer all questions regarding their qualifications to serve as jurors in the case. The clerk then selects from the panel 18 individuals to comprise the first group of prospective jurors. These individuals are seated in the jury box.
The judge begins the voire dire examination with a short statement about the case to inform the prospective jurors of what the case is about and to identify the parties and their lawyers. Next, the judge orally examines each prospective juror to determine whether she has any personal bias in the case or knows of any reason why she cannot render an impartial verdict. Based on the juror's responses, the judge can excuse her. The judge then allows the attorneys to similarly examine each prospective juror.
After the judge and the attorneys have examined all of the prospective jurors, the judge invites the attorneys to the side bar, outside the hearing of the prospective jurors. There, the attorneys offer any challenges "for cause" as to the prospective jurors. A challenge "for cause" seeks to exclude a prospective juror on the basis that she has a bias against the defendant, has a bias for or against law enforcement officers, or has pre-judged the case. If the challenge "for cause" is granted, the prospective juror is thanked by the judge and excused. There is no limit to the number of challenges for cause which either party can make.
Once challenges for cause are handled, the attorneys return to open court to exercise peremptory challenges. A peremptory challenge can be used to exclude a juror for any non-discriminatory reason. In most criminal cases, each side has 10 peremptory challenges. In death penalty and life imprisonment cases, each side has 20 peremptory challenges. Multiple defendants have 10 peremptory challenges jointly and five peremptory challenges individually.
Voire dire culminates in a panel of 12 jurors who are then sworn in by the clerk. The judge and attorneys also select one to four alternate jurors who will sit through the trial but who will not participate in deliberations unless one of the 12 regular jurors is excused from the panel. The trial now moves on to opening statements.
The opening statements are a brief "road map" for the jury and judge about what each side expects the evidence to prove. No witnesses testify at this stage, and no physical evidence is presented.
Because the government has the "burden of proof" as to the defendant's guilt, the prosecutor's opening statement is given first. In this statement, the prosecutor presents the facts of the case from the government's perspective and walks the jury through what the government will prove—what the defendant did, how, and why. The defense may wait until the conclusion of the government's main case before making its opening statement. In this statement, defense attorney gives the jury the defense's interpretation of the facts, sets the stage for rebutting key government evidence, and presents any legal defenses to the crime[s] charged.
Presentation of Evidence
Evidence is "admitted" into the trial, or made available to the jury, through witness testimony and/or introduction of exhibits. The prosecutor begins his "case-in-chief" by calling percipient and expert witnesses to testify. Percipient witnesses are witnesses who saw, heard, or experienced something that is relevant to the defendant's guilt or innocence. A classic percipient witness is a crime victim or eyewitness. Expert witnesses are qualified by specialized training or education to testify to matters also relevant to defendant's guilt or innocence but not within the common knowledge of the layperson. The prosecutor performs "direct" examination of the expert or percipient witness, and then the defense is allowed "cross" examination of that witness. The prosecutor can then reexamine the witness as long as the questions asked are limited to the scope of cross examination. This back and forth process of examination continues until both sides excuse the witness.
During its "case-in-chief," the prosecutor may also introduce exhibits. An exhibit is any item that serves as circumstantial or direct evidence of defendant's guilt. An exhibit can be a forged check, a gun used in the commission of the crime at issue, or lab results showing the presence of drugs in defendant's body.
After the prosecutor has completed his "case-in-chief," the prosecution rests. At this point, the defendant may make a Motion for a Judgment of Acquittal, also called a Penal Code section 1118 Motion. In this motion, the defendant argues that the evidence presented by the prosecution is insufficient to warrant a conviction as to one or more counts. If the Motion for Judgment of Acquittal is granted, the charges against the defendant are dismissed. If said motion is denied, the defense phase of the case begins.
It is important to remember that the burden of proving the defendant's guilt beyond a reasonable doubt always rests on the prosecution. However, the defense may choose to present evidence in rebuttal of the prosecution's case-in-chief. The defendant may also waive his constitutional right to remain silent and testify on his own behalf. If the defense presents evidence in favor of the defendant's innocence, the prosecution may offer rebuttal evidence. The prosecutor may not, however, fill in gaps in the case-in-chief under the guise of rebuttal evidence.
After each side has presented its case, the attorneys give closing arguments. Because the prosecutor has the burden of proving the defendant's guilt beyond a reasonable doubt, she has the luxury of arguing both first and last. After the prosecutor's closing argument, the defense will make its own closing, and then the prosecutor has an opportunity to rebut.
A skilled defense attorney will use the closing argument to cast doubt on every possible aspect of the prosecution's case and to address any questions the prosecutor poses to the jury. In doing so, the defense attorney will remind jurors of their responsibility to deliver a not guilty verdict if the prosecutor has not proven every element of the case beyond a reasonable doubt. The defense attorney will next walk the jury through holes in the prosecution's case and the alternative explanations presented by the defense. She will then ask the jury to render a just and fair verdict of Not Guilty.
Verdict and Sentencing
Once Closing Arguments have been completed, the judge will read "jury instructions" to the jury. The jury instructions include the legal definition of the crime, the "beyond a reasonable doubt" standard of proof, and the fact that the burden of proof is on the prosecutor exclusively. The jury is also reminded that it must decide the case only on the basis of evidence presented at trial.
After the jury has received their instructions, they are dismissed to the jury room to deliberate on their verdict. If they are able to reach a unanimous verdict, they will be brought back into the courtroom to disclose the verdict in open court. If the jury renders a guilty verdict on some or all of the charges, the defense is allowed to "poll" the jury, that is, defense attorney may ask each juror individually if in fact he or she voted for the announced verdict.
If the jury cannot reach a unanimous verdict on some or all of the charges, the jury is said to be deadlocked or hung. In such a case, the judge may inquire of each juror whether any further deliberations or additional instructions would be helpful. The judge may even allow the attorneys to reopen closing arguments as to the charges upon which the jurors cannot agree. If after further deliberations the jury still cannot unanimously agree upon a verdict, the judge will declare a mistrial and discharge the jury. The judge then may set the case for a new trial or dismiss the charges altogether.
For a convicted defendant in a non-death penalty trial, the next phase is sentencing. For a convicted defendant in a death penalty trial, the next phase is the penalty phase of the trial. This is where the prosecution presents evidence as to why the defendant is deserving of the death penalty. The defense in response presents mitigating evidence as to why the defendant should not be sentenced to death. The jury then decides if the sentence should be death or life imprisonment without the possibility of parole.