Process of a Criminal Case

In general, criminal cases have the following steps. Click on each step to learn more.

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  • How Does a Criminal Case Start?

    1. Usually, the police cite or arrest someone and write a report. This report summarizes the events leading up to the arrest or citation and provides witnesses’ names and other relevant information. Accused persons generally do NOT have a right to get a copy of the arrest report from the law enforcement agency, but their lawyers do get a copy once charges are filed. The reason for this is to protect the identity of witnesses.

    2. The arresting agency forwards their report to the prosecutor. The prosecutor reviews the police report and evidence and decides whether to file charges and, if so, what charges to file. The prosecutor also decides whether to charge the crime as a felony or a misdemeanor. Because the prosecutor is evaluating the evidence to see what charges they can prove beyond a reasonable doubt, they may add, delete, or modify the charges, which is why the charges filed by the prosecutor may be different from the charges for which the defendant was arrested.

    3. If an accused person is taken into custody and not released, they must be seen before a judge within 72 hours (three court days) from the date of their arrest. Weekends, court holidays, and mandatory court closure days do not count against the 72 hours. Also, the deadline for arraignment depends on what time of the day you were arrested. So, if an accused person is arrested Wednesday night before Thanksgiving, they may not go before a judge until the following Wednesday morning, a week later.

  • The Arrest

    If the police suspect someone committed a crime, they can either give them a citation and notice of a future to appear in court, or they can physically arrest them and take them to jail.


    If taken to jail, 1 of 3 things may happen:

    • The accused person posts bail (also called a “bond”) and is given a future date to appear in court; or

    • The accused person is released if the prosecutor lets the Sheriff know they decided not to file charges; or

    • The accused person stays in jail. Law enforcement officers transport the defendant to the court for the first court date, called the arraignment. Public Defenders are always in these courtrooms, so if you don’t have an attorney, one will be there to assist you.

  • The Arraignment: The First Court Hearing

    The arraignment is the first time the accused person appears in court.

    At the arraignment, the accused person will go over the complaint (which has all the charges against the accused person on it) and the judge tells the accused person:

    • What the charges are,
    • What his or her constitutional rights are, and
    • That if he/she/they does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge.

    The accused person may then respond to the charges by entering a plea. Common pleas include guilty, not guilty, or no contest (also known as “nolo contendere”).

    • Not Guilty means the accused person says he/she/they did not commit the crime.

    Often times, defendants enter a plea of not guilty at this early stage because they have not yet reviewed the evidence against them, need to know what legal defenses may exist to the charges, do not know what the full extent of the consequences of a guilty plea would mean, and need more time to collect documents and information in their own defense.

    It is extremely rare for a person to plead guilty to a felony at the arraignment hearing. It can be common for individuals to plead guilty or accept an offer for a misdemeanor at the arraignment hearing.

    • Guilty means the accused person admits he/she/they committed the crime. The judge finds the defendant guilty and enters a conviction in the court record, and the person may be sentenced that same day.

    • No Contest means the defendant does not contest (disagree with) the charge. This plea has the same effect as a guilty plea, except the conviction generally cannot be used against the defendant in a civil lawsuit.

  • After the Arraingment

     In misdemeanor cases, if the defendant enters a not guilty plea, after the arraignment and before the trial:

    • The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer.
    • Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
    • The defendant can change his or her plea to guilty or no contest.
    • The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.


    In felony cases, after the arraignment, if the case does not settle or get dismissed the judge holds a preliminary hearing. At this hearing, the judge will decide if there is enough evidence that the defendant committed the crime to make the defendant have to appear for a trial. If the judge decides that there is enough evidence, the prosecutor will file a document called “the Information.” Then, the defendant will be arraigned, a second time, on the Information. At that time, the defendant will enter a plea and proceed to trial. Before the trial:

    • The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer.
    • Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
    • The defendant can change his or her plea to guilty or no contest.
    • The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.
  • Trial

    Defendants in criminal cases (other than infractions) have the right to have a jury of their peers decide their guilt or innocence. Therefore, before trial, defendants need to decide whether to have a jury trial (where the jury decides if the defendant is guilty or not) or a court trial (where the judge decides). Usually, defendants choose to have a jury trial because they want a jury of their peers to hear the evidence and decide their guilt. But sometimes there may be circumstances where a defense attorney will recommend a court trial without a jury.

    Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. This means that it is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. The defendant has the right to remain silent and that silence cannot be used against him or her.

  • Setting a Trial Date

    For a jury trial for a misdemeanor case: The law says how soon a defendant charged with a misdemeanor must be brought to trial. (See section 1382 of the Penal Code).External link icon

    If the defendant is in custody at the arraignment, the trial must start within 30 days of arraignment or plea, whichever is later.

    If the defendant is not in custody at the arraignment, the trial must start within 45 days of arraignment or plea, whichever is later.
     

    The defendant can “waive” (give up) the right to a speedy trial. This means the defendant agrees to have the trial after the required deadline (also known as “waiving time”). But even if the defendant waives time, the law says the trial must start within 10 days after the trial date is set. It is very important for defendants to get advice from an attorney before they waive time.

    For a jury trial for a felony case: The law says how soon a defendant charged with a felony must be brought to trial. (See section 1382 of the Penal Code.) External link icon

    The prosecutor must file the Information within 15 days of the date the defendant was “held to answer” at the preliminary hearing.

    The trial must start within 60 days of the arraignment on the Information.

    The defendant can “waive” (give up) the right to a speedy trial. This means he or she agrees to have the trial after the 60-day period (also known as “waiving time”). It is very important for defendants to get advice from an attorney before they “waive time.”

  • What Happens at Trial?
    • Before the trial starts, the lawyers choose a jury. The process for choosing a jury is called “voir dire.” During this process the attorneys on both sides ask questions of the potential jurors to make sure the jurors will be fair and impartial.
    • Before the lawyers present evidence and witnesses, both sides have the right to give an opening statement about the case.
    • During the trial, lawyers present evidence through witnesses who testify about what they saw or know.
    • After all the evidence is presented, the lawyers give their closing arguments.
    • Finally, the jury decides if the defendant is guilty or not guilty. The jury must find the defendant guilty beyond a reasonable doubt.
  • The Verdict

    If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. The defendant can never be tried again for the same crime. This is called “double jeopardy.” A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal. If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

    If the defendant is found guilty, the defendant will be sentenced.

  • After the Trial - The Appeal Process

    If you are found guilty after a trial, you have the right to an appeal process. There are many reasons for an appeal of a criminal case, but appeals are also very difficult, so talk to a lawyer to make sure you know what is best for you.

    There are also important deadlines that apply to appeals. If you miss the deadline, your appeal will most likely be dismissed.

    • For misdemeanor cases, you must file a Notice of Appeal (Misdemeanor) (Form CR-132PDF file type icon) within 30 days of the date of the judgment or order.
    • For felony cases, you must file a Notice of Appeal — Felony (Defendant) (Form CR-120PDF file type icon) within 60 days of the date of the judgment or order.

    Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does.
    You can only appeal if:

    1. You say there was not enough evidence in your trial to justify the verdict or judgment; and/or
    2. You say there were mistakes of law during or before the trial that hurt your case.

    If you say there was not enough evidence in your trial to justify the judgment, the appellate court will review the record and decide if there was substantial evidence to support the judgment. If you say mistakes of law were made, the appellate court will hold a hearing to listen to both parties. Then they will decide if there was any irregularity or mistake that prejudiced (hurt) your case.

    In addition to appealing after a trial, there are other situations when you can file an appeal, like appealing the validity of a plea or probation violations. Talk to your lawyer to learn more about your options to appeal.

    • If you are appealing a misdemeanor conviction, you can appeal to the appellate division of the superior court. Read the Information on Appeal Procedures for Misdemeanors (Form CR-131-INFOPDF file type icon) if you want to appeal a guilty conviction in a misdemeanor case.
    • If you are appealing a felony conviction, you can appeal to the Court of Appeal in your appellate district (or the California Supreme Court if it is a death penalty case).
    • If you are appealing an infraction case, read the Information on Appeal Procedures for Infractions (Form CR-141-INFOPDF file type icon).

  • For More Information About All Types of Criminal Cases

    To learn more about the rules in criminal cases, read the California Rules of Court, Title 4.

    You can also look for these court rules in any law library. They are very important. Be sure to read them and follow them exactly. Click to find your public law libraryExternal link icon

FAQ

KNOW YOUR RIGHTS

RIGHT TO REMAIN IN SILENT

RIGHT TO HAVE AN ATTORNEY

 

3 Strikes FAQ

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  • How does the 3-Strikes law work?

    California’s 3-Strikes and You’re Out Law went into effect on March 7, 1994. Its purpose is to dramatically increase punishment for persons convicted of a felony who have previously been convicted of one or more "serious" or "violent" felonies. A "serious" or "violent" felony prior is commonly knows as a "strike" prior.

  • What is a felony?

    A felony is a crime punishable by a state prison (as opposed to county jail) sentence. Felonies run the range from petty theft with a prior and possession of small quantities of drugs through kidnapping, rape, robbery, and murder. Any new felony, regardless of how minor, may be punished under the 3-Strikes law if the defendant has one or more "serious" or "violent" felony priors.

  • What are "serious" or "violent" felonies (strike priors)?

    They are defined in Penal Code sections 667.5(c) and 1192.7(c). They include: residential burglary, robbery, kidnapping, murder, most sex offenses like rape and child molestation, any offense in which a weapon was personally used whether or not anyone was injured, any offense in which great bodily injury was inflicted, arson, crimes involving explosive devices, or attempts to commit any of those offenses.

  • What happens with one "strike" prior?

    A defendant who is convicted of any new felony who has one "strike" prior (known as a second striker) must go to prison (i.e., cannot be sent to a rehab facility or placed on probation) for twice the sentence otherwise prescribed for the new offense. Additionally, he must serve 80% of the sentence imposed whereas non-strike prisoners generally get between on-third and one-half off of the sentence imposed for good behavior and working while in prison.

  • What happens with two or more "strike" priors?

    A defendant with two or more "strike" priors (a third striker) faces a minimum of 25-years-to-life in prison. He earns no time off for good behavior or working. After serving the determinant minimum amount of time (25-years on a 25-to-life sentence) he is then eligible for, but not guaranteed, parole. Whether and when an eligible life prisoner (prisoners serving life-without-parole sentences for murder are never eligible for parole) is paroled is up to the Board of Prison Terms (BPT). The BPT is made up of members appointed by the Governor and tend to be very conservative about paroling eligible life inmates. Since no 3-Strike life prisoner has become eligible for parole and none will until 2019, no one knows how the BPT will deal with 3-Strike inmates.

  • Is 3-Strikes punishment mandatory in all cases?

    In certain circumstance where the sentencing court finds that a second or third strike defendant falls outside the "spirit" of the 3-Strikes Law, the court may, either on motion of the prosecutor or on the court’s own motion, strike or dismiss one or more "strike" priors. This is done pursuant to the power vested in the courts since 1860 to dismiss all or part of an action for good cause and in furtherance of justice. The court must state on the record and include in the court minutes the facts which the court finds justify dismissing the prior. A decision to strike or dismiss a "strike" prior is appealable by the prosecution and reviewable by the Court of Appeal and the Supreme Court. The San Diego Public Defender’s Office is proud to have been the law firm which established this rule of law in the California Supreme Court in the first 3-Strikes case to be decided by the Supreme Court. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

  • Do judges dismiss "strike" priors often?

    Generally, sentencing judges will strike or dismiss a prior only when it is old and the new offense is minor and the defendant has a non-violent history. It is extremely rare if not unheard of for a court to strike or dismiss a prior when the new offense is also serious or violent. Even though the court can strike priors, California’s prisons still receive more drug offenders sentenced as second or third strikers than any other class of crime.

  • What can be done to make the 3-Strikes law more fair?

    Of course, not everyone thinks the 3-Strikes law is unfair. More than 60% of the voters who voted (did you vote?) voted for 3-Strikes. However, a lot of people who voted for 3-Strikes were not aware of what it really means and does. This is not surprising since it is very poorly drafted, very long, and very technical. The campaign literature in support of 3-Strikes talked about putting repeat rapists, robbers, and murderers away for a long time. It didn’t talk about putting petty thieves and drug users away for 25-years-to-life. As a result of the realization by some that 3-Strikes is much harsher than they originally thought and that it costs a whole lot of money ($20+ thousand/year) to keep people in prison, certain members of the California Legislature are starting to rethink 3-Strikes to a certain extent. There have been proposals to limit its application to cases where the new offense is a "serious" or "violent" crime. No legislation has yet passed modifying 3-Strikes. It will be very difficult to modify it also, since it take a 2/3 vote of the Legislature to change 3-Strikes or another initiative measure passed by the voters. If you are interested in what is pending in the California Legislature on this or any other issue, you will find the  State Senate and  State Assembly web sites very interesting, informative, and useful.