Criminal proceedings can be daunting, whether you have been charged with a misdemeanor or a felony offense. You have to make appearances before judges who demand and expect respect and a certain degree of decorum from you and your attorney. There are many rules that must be followed from the presentation and arguing of motions, jury selection, presentation of the case, verdict and sentencing.
The following are the steps found in a criminal matter that proceeds through trial and sentencing.
After an arrest and usually after the arraignment where a not guilty plea has been entered, your defense attorney will have obtained copies of all documentary evidence in the possession of the prosecution that may be used against you. This can include police reports, medical records, lab test results, photographs, recordings and witness statements. The prosecution is also obligated to turn over evidence that is exculpatory, or that which is favorable to you.
Your attorney may seek to exclude incriminating evidence from being heard or considered by the trier-of-fact. A motion to suppress under PC 995 usually pertains to evidence that your attorney feels was unlawfully obtained in violation of the 4th Amendment prohibition against illegal searches and seizures. It can also include asking the court to exclude confessions or other statements you made in violation of your Miranda rights (right to an attorney to have an attorney present when questioned, right to remain silent, etc).
In the current climate of alleged racial bias by police in many instances of police shootings or beatings of African-Americans, your attorney may suspect that your arrest or the seizure of evidence was the result of police misconduct. This can include racial profiling, planting of evidence, excessive force or fabricated testimony. In such cases, your attorney can move to obtain a copy of the suspected police officer’s personnel file for records of past instances or complaints of misconduct. Such evidence can be used to impeach the credibility of the officer.
If there are multiple defendants involved, the state may attempt to have all tried together. However, this can seriously prejudice you if the evidence against other defendants is stronger than that against you since a jury may associate you with it. If so, your attorney may wish to make a motion to sever your case from the others so that you may be tried separately.
On the day of trial, your attorney may want to make motions in limine before the trial judge to exclude certain evidence from being heard. The subject of these motions may include:
- Hearsay statements made by witnesses in their recorded or written statements
- Results of medical or lab tests that were performed in violation of the defendant’s constitutional rights
- Photographs or other evidence that are inflammatory or prejudicial
- Evidence not relevant to the issues
- Testimony or documentary evidence of a prior conviction
- Evidence that otherwise violates the rules of evidence
The prosecutor cannot bring up any evidence that was excluded without first asking the judge. For example, if the defense inadvertently mentions that you have a prior felony conviction, evidence of which was excluded before trial, the prosecutor can request that it be allowed to mention it as well.
If the excluded evidence is mentioned by the state in violation of the court’s ruling, the court will advise the jury to disregard the evidence. If the verdict is against you, your defense lawyer can ask that you be granted a new trial.
Jury selection has been referred to as a science and there are experts that defense lawyers and prosecutors use in assisting them in selecting a jury that is more favorable to their respective positions.
In a misdemeanor or felony matter, you are entitled to a jury trial of 12 people. These individuals are drawn from a pool of persons who reside in the community or jurisdiction where the trial is being held who are at least 18 years of age and eligible to vote.
On the day of trial, jurors are called from the jury room to go to a courtroom where the Judge introduces makes the introductions of the courtroom staff, attorneys and defendant. The judge will usually explain that this is a criminal trial and will mention the crime that was allegedly committed.
Jurors are then called into the box or area where jurors selected to hear the trial will be seated. The judge will first ask if anyone is unable to serve as a juror because of employment, school or family obligations or for any other reason that would cause an undue hardship. A juror who has minimal English language ability or understanding will be excused. Any jurors who are excused are immediately replaced by others sitting in gallery.
Your defense attorney and the prosecutor are each afforded from 6 to 20 peremptory challenges, depending on the severity or nature of the offense. This means that they may use these challenges to remove any jurors in the box without cause or explanation.
Each attorney in turn is allowed to question the jurors as a group or individually in a process called voir dire. This is designed for the attorneys to determine if a juror:
- Has bias toward the state or defendant
- Possesses a preconceived notion of the defendant’s guilt or innocence
- Is physically able to sit through a trial
- Has the mental capacity to understand the judge’s instructions
Bias is the main reason for excusing jurors. Ir can be actual or implied. If jurors say they are biased toward Mexicans or Muslims and cannot put aside such feelings and impartially consider the evidence , then they will be excused. Implied bias is based on the juror’s past experiences, intimate knowledge of the defendant or anyone else involved in the trial or has character traits that would implicitly render the individual unable to be fair and impartial.
An example of a personal experience that may ingrain a person with implied bias is having been a victim of a crime or one that was similar to the one for which the defendant is being tried. Another instance is if a police officer is on trial, and a potential juror who once served on the police force is a potential juror. Either of these individuals may be excused for cause based on implied bias even if they state that they can maintain impartiality. If not, the defense will certainly use its peremptory challenges to excuse these jurors.
In all cases, the attorneys are questioning the jurors regarding their interests, backgrounds, employment and education, worldly experiences and other particular traits so as to choose those who are more disposed toward conviction or empathy towards the defendant.
Jurors cannot be excluded solely on the basis of race, religion, country of origin or ethnicity. If your attorney believed that the prosecution is systematically removing such jurors, a Wheeler Motion may be filed asserting such conduct. If granted, the entire selected jury is dismissed and the jury selection process begins anew.
Once the jury is selected, the attorneys make their opening statements with the prosecution leading off. The prosecution will state what the case is about and what it plans to prove, what evidence will be introduced and what certain witnesses will testify about. No evidence may be introduced during opening statements and whatever either attorney states is not considered evidence.
For instance, the state’s attorney will say that this is a robbery case and that the evidence will show that the defendant used a weapon to take jewelry from the victim against her will. The prosecutor may also state that the jurors will hear testimony from the victim who will identify the defendant and from a police officer who found a weapon on the defendant which the victim identified as being in the hand of the defendant.
The prosecution can also mention that jury will see other evidence that will connect the defendant to the crime such as fingerprints and the jewelry.
The defense has the option of either giving an opening statement after the prosecution has delivered its statement or after the prosecution has presented its case and rested, or it may waive it altogether. Using the above case example, the defense attorney may state that the evidence will demonstrate that the victim was unable to immediately identify the robber, that the description given of the robber did not match the defendant, that the defendant found the gun on the street or that the jewelry was sold to him. The attorney may also say that witnesses will place the defendant somewhere else when the robbery allegedly took place.
The burden of proving you guilty in a criminal case rests solely on the state. It must prove each element of the offense for which you are charged by the standard of beyond a reasonable doubt.
In a robbery prosecution, for example, the state must provide evidence that meets this standard for each of the following elements:
- The defendant took property that belonged to someone else or the victim
- The property taken was on the person of the victim or within the victim’s immediate presence
- It was taken against the victim’s will by the use of force or fear
- The defendant intended to deprive the victim of the property permanently or long enough to deprive the victim of a major portion of its value
Evidence comes in the forms of objects, documents or witness testimony. A prosecutor in the above example may have the victim testify that she can identify the defendant as the person who pointed a gun at her and said he would harm her unless she gave him her jewelry that she was wearing and that was in her purse. She would also testify that she did not consent to giving up her jewelry and that she feared for her life or health unless she did so.
A police officer could state that he stopped the defendant in a car on suspicion of drunk driving, that the defendant matched the description of the robber and that he found a gun in the car as well as the jewelry that was stolen and later identified as belonging to the victim. The gun that was found will also be introduced into evidence to corroborate the victim’s testimony that she was robbed at gunpoint as well as the jewelry that was taken from her.
The defense has the opportunity to cross-examine each witness. Your attorney could challenge the victim’s ability to identify the defendant who may have been wearing a mask or point out that her initial description of the defendant did not match certain facial, voice, height and weight characteristics of the defendant. In regards to the weapon, the victim may have given only a generic description such as that it was a handgun but told police that the gun was the one the defendant had at the time of the crime.
At the close of the prosecution’s case in chief, your defense lawyer could make a motion to dismiss the case by arguing that the state failed to prove its case or some element of the crime and that no reasonable person could conclude otherwise. If it is only a matter of credibility, then it is jury question and the court will likely not grant such a motion.
The defense has the option of introducing evidence or of resting without introducing any evidence or testimony if it believes the state has failed to meet its burden. If so, the case goes to closing arguments.
In most cases, the defense will introduce evidence to challenge the victim’s or other witness’ version of the facts or events. If the defendant has an alibi, then the defense can introduce witnesses who will testify that they saw and talked to the defendant at a different location at the time the robbery was committed. If the defendant was at a movie or shopping, receipts can show the time the defendant was watching the movie or at the grocery store when the crime was taking place.
If the defendant’s height or weight was vastly different from the victim’s description, medical or other evidence can be introduced indicating the defendant’s height and weight at the time the crime was committed. Photographs depicting the defendant’s appearance at the time of the offense that are significantly different than what the victim described may also be of the introduced.
If there are lab or chemical tests, DNA or blood test results, the defense can have experts testify that the results are faulty or defective based on certain external or physical factors.
In the majority of criminal cases, the defendant does not testify in his or her defense. The main reason is that the defendant has a prior felony conviction that can be used to impeach credibility. Also, many prosecutors are very capable at cross-examining defendants who may have made prior statements that are inconsistent with their testimony on the witness stand.
There are certain defenses that, if asserted, must be proved by the defense. This includes self-defense and insanity. These are defenses that do not disprove or attack an element of the crime but provide an excuse or justification.
For self-defense, the defense must show that the defendant used a reasonable amount of force to repel or resist an attack by the supposed victim. In such cases, defendants will have to testify to show that they feared imminent harm by the victim and and only used enough force to subdue the person or had to use lethal force to kill or they risked being killed.
If you use the insanity defense, it must be introduced or pled at the arraignment. Your attorney will have to introduce expert medical and/or psychological or psychiatric evidence to show that at the time you committed the offense, you did not understand the nature of the criminal act or did not understand that what you were doing was morally wrong. The standard of proof is less than the criminal one, or that you must prove insanity by a preponderance of the evidence.
If the defense does introduce evidence, the prosecution has a right after the defense rests to introduce rebuttal evidence or testimony. This can be a new witness to rebut or contradict whatever a defense witness testified to or other evidence that was not introduced. A witness who testified earlier could provide new testimony that contradicts a defense witness. For instance, the prosecution may introduce a witness to rebut the alibi defense.
Rebuttal evidence is not that common and if introduced, is typically short.
After the defense rests and rebuttal evidence, if any, is introduced, the attorneys present their closing arguments. These differ from the opening statements in that the attorneys argue their respective positions, summarizing what the witnesses testified to, what the evidence demonstrated or supported or not and that the burden of proof was either met or not. The state or prosecution is the first to present its arguments.
There are certain points that either attorney may make during the closing arguments:
- Summary of the law or the elements of the case
- Explanation of the standard of proof of beyond a reasonable doubt
- Summary of the evidence
- What reasonable inferences may be drawn from the evidence
- Credibility of the witnesses or other evidence
- Strengths or weaknesses of the prosecution’s case or defenses offered by the defendant
- Asking the jury to follow the law and to convict or find the defendant not guilty
The attorneys may not make inflammatory comments or refer to evidence that was not introduced at the trial.
Other than waiting for the trial to begin, jury deliberation is the most agonizing part of the trial process. Attorneys for both sides can often intuit what the verdict will be but in many cases, the lawyers and defendants are not so confident and simply hope that the jury will agree with their arguments and see the facts and evidence as they presented them.
Before jurors begin their deliberations, the judge will read the jury instructions. The instructions are the framework from which the jury proceeds. They contain the law that must be followed, indicate the elements of the offense, the standard of proof, elements of any affirmative defenses, the defendant’s right to not testify and others. For instance, an instruction may advise the jury to find the defendant guilty if they believe the state’s version of the facts but if it is just as likely that the defendant did not commit the crime, then they must find the defendant not guilty. Also, the jury is instructed that all 12 persons must be unanimous in finding the defendant guilty on any of the counts or charges.
After the instructions are read, the judge will reiterate warnings given to jurors at the beginning and throughout the trial to not discuss the case with anyone else, to not visit the scene of the crime, to refrain from talking to the attorneys or witnesses in the case and to not watch on television or listen on the radio to anything regarding the trial.
The jurors retire to the jury room where they first select a foreperson. This is the individual who leads the discussion, who counts the votes and who submits questions to the judge. Jurors can also ask for a copy of the trial transcript to review testimony from a witness or even to visit the crime scene. If a question is asked, the attorneys are advised and are told to report to the judge’s chamber where the question is read. The attorneys may discuss the question but the judge decides whether to answer it and how.
There are no set rules for how a jury is to deliberate. They are given verdict forms on which the foreperson will indicate the verdict that was reached on each count of the complaint. Other than that, the jurors may discuss the issues in the case in whatever manner they wish.
A bailiff sits outside the juror room and does not allow anyone inside. No newspapers, computers, smartphones, radios or television are permitted. If the deliberations extend to meal times, they are taken out together to a restaurant or food is brought in. If they do not reach a verdict by a certain time such as 5:00 pm, then they may be brought to a hotel to spend the night and then returned the following day. This is done if the judge orders that the jury be sequestered so that outside persons, news or events may not influence the jury’s decision. Otherwise, the jurors may go home and return the following day.
At times, the foreperson will report that they are unable to reach a verdict on any of the charges. Usually, the judge will ask that they attempt to do so and may ask if they are close. If they are not close at all or further deliberations would be fruitless, then the jury is “hung”.
As indicated herein, the foreperson is given one or more verdict forms. For each count, the foreperson indicates guilty or not guilty. If the jury cannot reach a verdict on a count, then none may be indicated.
A guilty verdict must be unanimous. Even one vote that is not consistent with the others can result in a mistrial. When the foreperson indicates to the bailiff that they have reached a verdict, the judge is informed and the attorneys and defendant return to court. The verdict form is given to the judge to review and then usually given to a staff person sitting next to the judge to read. After being read, the attorneys may ask that the jury be polled. Each juror is asked if they voted a certain way. In rare cases, a juror may change a vote or indicate that he or she did not vote for guilt. If so, the jury is asked to deliberate further.
Should the defendant be found guilty, then he or she may be immediately placed in custody though not in all cases. A judge may sentence a defendant the same day or schedule the sentencing for another day while the defendant remains free on bail or bond or in custody.
A jury can also find the defendant guilty of a lesser-included offense. This may be a crime that is included in the offense charged or can be an attempt to commit the offense. For example, a defendant charged with first degree homicide may be found guilty of manslaughter instead.
If the jury votes to acquit the defendant, he or she is immediately released from the court’s authority or jurisdiction and is free to go home.
There are cases where the jury deadlocks. f this occurs, then any of the following may happen:
- A mistrial is declared on those counts or charges and the case re-tried with a different jury
- The prosecution and defense agree on a plea arrangement
- The prosecution elects to not re-try the defendant and the case is dismissed
Following a guilty verdict, the defense attorney may move the court for a new trial based on:
- Errors made by judge relating to the law
- Prosecutorial misconduct
- The judge allowing certain inflammatory or illegally obtained evidence to be heard
- Improper jury instructions
Sentencing after a guilty verdict may be immediate or left to a later date for a hearing.
If convicted of a misdemeanor, you face a maximum county jail sentence of either up to 6 months or no more than one year, depending on the offense. Fines are no more than $1000 but court costs may increase that significantly. \
If the offense was a “wobbler,” or a crime where you could have been charged with either a misdemeanor or felony, then you may be sentenced to state prison or county jail.
At sentencing in felony cases where probation is denied, the judge may sentence you to either the upper, middle or lower prison terms as found in the statute pertaining to the offense. Your defense attorney can present arguments in mitigation by pointing out your redeeming qualities or presenting other mitigating factors such as :
- Your involvement with others in the commission of the offense was minimal or passive
- Lack of prior convictions
- You were pressured or coerced into becoming involved
- You were under financial pressure to help your family
Of course, the prosecution may argue that there were aggravating circumstances involved including:
- The involvement of weapons or drugs
- You have prior convictions
- The victim was seriously injured
- The victim was a minor
- You were on probation or parole
If convicted of a felony in some cases, the court can grant a suspended sentence and impose probation in lieu or prison or county jail time. If convicted and probation is not granted, you are subject to California’s Criminal Justice Realignment Act of 2011.
Certain crimes are specified as coming under PC 1170(h). These are non-violent crimes and non-sex offenses. If you are convicted of a felony subject to this code section and probation is denied, you must be sentenced to county jail and not state prison. This is significant in that your offense may be expunged after your sentence is completed. You may also receive a split sentence whereby part of your sentence is served in county jail and the remainder under supervised probation.
For violent crimes that qualify as a strike or sex-related offenses for which you are required to register as a sex offender, or for convictions for which there is an enhancement, you will serve your time in state prison.