RIGHTS OF THOSE ACCUSED OF A CRIME
1. Right to an Attorney -
You have a constitutional right to an attorney to defend you in a
criminal proceeding. The court will appoint an attorney for you at
no charge if you cannot afford to hire one. At the end of the case,
you may be asked to pay all or part of the cost for the court-
appointed attorney, depending upon your ability to reimburse such
2. Right to a Speedy and Public Jury Trial -
In California if you are charged with a crime carrying the possibility
of jail, you have the right to a speedy, public jury trial. At the trial,
you are presumed innocent, and cannot be convicted unless all 12
jurors are convinced of your guilt beyond a reasonable doubt. Your
attorney gets to participate in an extensive interview of the
potential jurors and pick the twelve who seem the fairest for you. It
is vital that your attorney select a jury of twelve people who will be
open-minded, intelligent and fair in hearing your particular charge.
Jury selection is a skill in itself and the right jury brings the right
3. Right to Confront Witnesses -
As a defendant on trial, you have the right to confront and cross-
examine every witness who the district attorney uses to give
evidence against you. The witness cannot simply write a statement
and have it read in court by someone else. Your attorney can cross-
examine the witness and show he or she is lying or is biased against
4. Right Against Self- Incrimination -
You have the right, at your own trial, to not testify. It is part of your
constitutional right to remain silent and not incriminate yourself. It
is up to you whether to testify at your own trial or not. The jury is
not allowed to consider the fact that you have decided not to testify,
and if the district attorney even mentions to the jury your decision
not to testify, your case must be tried all over again. Your attorney
is responsible for seeing that all of these rights are protected during
trial. If the judge or the district attorney tries to violate them, your
attorney must be strong enough and smart enough to put a stop to it.
5. Right to Produce Evidence-
You also have the right to present evidence and to have the court
issue a subpoena to bring into court all witnesses and evidence
favorable to you in your defense at trial. The strength of your
defense is often based in how well your attorney has investigated
your case and what witnesses he or she has found for your side of
the story. A top-notch investigator is necessary to gather evidence
for your defense and to interview both the district attorney's
witnesses and your witnesses in preparation for trial. Finally, a good
source of "expert" witnesses is necessary in order to explain
complex scientific or accounting principles to the jury. A good
expert will show how the district attorney's scientists are wrong and
how your interpretation of the evidence is accurate.
THE CRIMINAL PROCESS
1. Commission of the Crime
There are two types of crimes, felonies and misdemeanors.
A felony is a crime that may be punishable by one year or more in
State Prison. Felony cases begin in lower courts and then can be
transferred over to Superior Court if the judge determines that
probable cause exists that the defendant being accused has
committed the crime in question. A misdemeanor is a crime punishable by up to a year in county jail.
2. Retaining an Attorney
A defendant may retain a criminal defense attorney at any stage of
the case, whether it is during the investigation or the night before
any court date.
Criminal defendants have the right to an attorney and will be
appointed one (the Public Defender) if they cannot afford one.
However, criminal defendants may be responsible for paying the
costs of their court-appointed lawyer if it is later determined that
they had enough money to pay for an attorney.
Although you can retain our criminal defense attorney at any time,
it is in your best interest to hire us as early in your criminal case as
possible - even before charges are filed, as we may be able to impact
3. Pre-Arrest Investigations
The pre-arrest investigation stage of the process is the best time to
hire a criminal defense attorney to take control and defend the case.
Pre-arrest investigations are done after the defendant has been
contacted by a law enforcement agency but before charges have
been filed. At this point in the process, the defendant has not been
During this stage, the criminal defense attorneys at the PHILLIPS
LAW OFFICE can attempt to do the following:
* Prevent filing of charges.
* Reduce charges.
* Assist with surrender and avoid arrest.
* Divert allegations into an informal resolution.
To make a felony arrest, police must have either a warrant or
probable cause, which may be understood as a "good reason" to
arrest. For a misdemeanor, the police can only make an arrest for
crimes that occurred in the presence of the arresting officer or with
Although police are not required to read Miranda Warnings to
everyone that is arrested, failure to do so may be grounds to
suppress certain statements or confessions.
All felony defendants and most misdemeanor defendants will be
required to go to the police station for booking. When a suspect is
booked the following occurs:
* The suspect is taken to the law enforcement station.
* The suspect is asked a series of routine questions.
* The suspect is lawfully searched.
* The suspect is fingerprinted and photographed.
6. Post-Arrest Investigations
Post-arrest investigations are done after the arrest, but before
charges have been filed by the prosecutor. It is not required that the
arresting agency release the police report before the defendant goes
to court. However, sometimes our criminal defense attorneys can
talk the police into releasing the report.
7. Decision to Charge
The police do not file charges. They only make recommendations to
the prosecuting attorney if charges should be filed. After reviewing
the police reports, it is up to the DA to decide if to file charges and
what charges to file. Sometimes if our criminal defense attorneys
become involved in the case early enough, we can stop charges from
being filed or have less serious charges filed. If you are the subject
of a criminal investigation, it is always a good idea to discuss the
situation with a criminal defense attorney.
8. Filing the Complaint
The prosecuting attorney files a document called a complaint with
the court. The complaint describes the charges that are being filed
against the defendant.
9. Arraignment/First Appearance
In California,the police are permitted to hold a suspect for up to 48
hours (not counting weekends) after the arrest before seeing a judge
at an initial appearance. The suspect is entitled to see a criminal
defense attorney immediately if requested.
At the initial appearance, the defendant will be read his/her rights
and the charges against him/her. Bail is set during the initial
appearance. Bail is an "insurance policy" that the defendant will
appear before the court again. The amount of bail is determined by
the seriousness of the offense and by the Judge, usually using a "bail
schedule". Bail can be $0 if the defendant is released "on their own
recognizance " (O.R.), but it can be increased if the Judge feels that
the defendant will not appear in court again. If the DA does not file
charges within the 48 hours from an arrest, the suspect must be
released on their OR.
Having an attorney at this early stage can have a huge impact if bail
is set or how much it is set for.
During a later proceeding in front of the court, the defendant’s
criminal defense attorney can bring a motion to reduce bail. The
judge decides whether to reduce bail and will consider the
defendant's risk of flight and danger to the public.
Discovery is given to the defendant’s criminal defense attorney after
arraignment. Discovery includes, but is not limited to: police
reports, medical records, probation reports, photographs,
diagrams, and viewing of physical evidence.
Discovery in criminal cases must be reciprocal, which means that
the prosecution must provide the defendant’s criminal defense
attorneys with the evidence they are using in the case. Neither the
prosecution nor the defense may "hide" evidence and later
introduce it during the trial.
10. Pretrial Conference
After the arraignment, the court will schedule several pretrial
conferences. The purpose of these hearings to is monitor the
progress of the case.
11. Preliminary Hearing
Preliminary hearings only occur in felony offenses. In California, a
preliminary hearing is necessary for the Judge to determine whether
or not there is sufficient evidence or probable cause to support the
charges against a defendant and transfer the case over to Superior
Court for trial.
12. Filing of the Information
After the preliminary hearing, the prosecuting attorney will file a
document, called an information, with the Superior Court which
notifies that the State is "charging" the defendant with a particular
13. Arraignment on the Complaint or Indictment
During the arraignment, the defendant is taken before the Superior
Court and informed of the charges. At that time, the defendant will
answer to the charges by pleading not guilty, guilty or no contest. At
the Superior Court arraignment, the amount of bail may be
reviewed, which may be increased or decreased at the court's
14. Pre-Trial Conference
At the pre-trial conference, the criminal defense attorneys negotiate
with the prosecuting attorneys in order to obtain the best possible
plea for their client.
The agreement might include:
* The prosecution charges the defendant with a lesser charge
* The prosecution agrees to a lesser punishment for the same charge
* The number of counts may be dropped
* Alternative sentencing
Criminal defense attorneys may also file pre-trial motions, which
may assist in dismissing charges or changing the prosecution's
position. Some common pre-trial motions are:
* Motion to Suppress Evidence
* Motion to Dismiss the Information
* Motion for a Speedy Trial
* Motion to Sever Counts
* Motion to Compel Discovery
If the case does not settle, it proceeds to trial. During a jury trial and
after the jury is selected, both the criminal defense attorneys and
the prosecuting attorneys complete the following process:
* Opening statements
* Direct examinations of their witnesses
* Cross examinations of the opposing witnesses
* Closing arguments
During the deliberation of the case, the jury decides the guilt or
innocence of the defendant, but the judge will determine the
appropriate sentence if the defendant is found guilty. Upon a guilty
verdict, a motion for New Trial might be filed with the court.
Sentencing is a court hearing where the judge determines
punishment. There is often great flexibility at this stage of the
A defendant may be sentenced to probation instead of prison.
However, he/she may be ordered to do some local custody time as a
term of his/her probation. If a defendant violates the probation,
he/she may be incarcerated in prison.
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. These prison terms are called low term,
mid term, and high term. Criminal defense attorneys argue about
the proper prison term based on the facts of the particular case. The
final word is within the judge's broad discretion.
Some alternatives to jail that our criminal defense attorneys might
* Detox Programs
* Electronic Home Monitoring
* Residential Treatment Centers
* Weekend Work Programs
* Community Service
17. Additional Consequences
In addition to any sentence imposed by the court, a conviction can
have a number of independent consequences. This is why it is
important to discuss the case with a criminal defense attorney
before entering a plea or accepting a plea bargain.
On felony cases, these consequences can include, but are not limited
* 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.
If convicted, a defendant may appeal to a higher court. The purpose
of an appeal is to ensure that the trial court did not make any legal
errors throughout the trial process. Appeals may result in the
reversal of a defendant's trial court conviction.
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