The previous post described the process when someone is charged with a misdemeanor. Today's post reviews the process for a felony charge. Though the basic outline is the same, some important steps are added since felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.
The felony process:
Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation. In others, police will make an arrest as a result of evidence that comes before them in the field; the incident reports are then submitted to the district attorney's office for filing of a criminal "complaint." In still other cases, the police do not make an arrest but instead submit the investigation to the district attorney's office, which will then request an arrest warrant after filing a complaint.
First Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel and trial by jury. If the defendant is in custody, bail is set.
Preliminary Hearing: This must occur within 10 court days of the first arraignment unless "time is waived" by the defense [see explanation below]. The preliminary hearing requires the judge to determine whether sufficient evidence exists to maintain the criminal charges against the defendant and continue to the trial phase. While the standard used at trial is guilt beyond a reasonable doubt, the standard at the "prelim" is probable cause. The prosecution calls witnesses and presents evidence in an attempt to convince the judge that there is good reason to believe that a crime was committed and that the defendant committed it. The defense attorney may cross-examine the prosecution's witnesses and call her own witnesses and present evidence to challenge the charges. There is no jury at the prelim; the judge makes the final ruling whether the case should move forward as a felony, be recharged as a misdemeanor, or be dismissed altogether.
Waiving time: The defense frequently waives time between the arraignment and the preliminary hearing, meaning that the prelim may be scheduled later than 10 court days after the arraignment. This gives the defense attorney time to conduct an investigation, gather information, and negotiate with the district attorney.
Second Arraignment: After the preliminary hearing the district attorney files what's called an Information. The defendant is again brought before the judge to be arraigned on the Information, to hear the charges, and to enter a plea of guilty or not guilty.
Pre-Trial Conferences and Motions: The defense attorney meets with the prosecutor, and often the judge, to review the case. The district attorney's office is required to share all evidence - called discovery documents - with the defense attorney. Motions - such as to suppress, or keep out, evidence or testimony from the trial - are filed by the defense attorney. Since many cases are settled during the pre-trial phase, an experienced criminal defense attorney is critical to getting the best possible outcome for the defendant.
Trial: Defendants are constitutionally guaranteed a trial by a jury of their peers. California, like all states, has what's called an adversarial criminal justice system. The prosecution, representing the people of California, attempts to prove beyond a reasonable doubt that the defendant is guilty. The defense attorney is the defendant's advocate, ensuring that law enforcement has not violated the defendant's constitutional rights and that all evidence introduced at trial is accurate and relevant. The defense attorney is the defendant's voice to make the best possible argument in favor of acquittal. The jury must presume the defendant innocent unless the evidence convinces them otherwise. A guilty verdict requires that all twelve members of the jury are convinced beyond a reasonable doubt that the defendant committed the crime. Anything less requires a verdict of not guilty.
Sentencing: A verdict of not guilty means the defendant is free to go. A guilty verdict requires the judge to impose a sentence. It is important to note that in almost all cases the jury does not decide the sentence; the jury's duties are completed once they return a verdict. Sentencing comes after the judge has reviewed the facts of the case and the recommendations of the probation department, consulted California state sentencing guidelines, and, in some cases, heard testimony from victims. Judges often have a fair amount of discretion in the sentences they give out. For some crimes, though, sentencing guidelines give judges less leeway. The defense attorney again plays a vital role in advocating for the defendant during the sentencing hearing.
At all stages of this felony process, the criminal defense attorney is crucial to protecting the accused person's rights. Contact the Law Office of Nancy King if you have questions about the issues discussed in this post, or any other issues reviewed in our blog.
For more on presumption of innocence, reasonable doubt, and the role of the defense attorney, click on these links:
