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Felony: The Process from Arraignment
to Appeal
Arraignment
The arraignment in a felony trial follows the
same process as in a misdemeanor trial. Bail and
identity are established, charges are ascertained
and the attorney of record is confirmed. An arraignment
is a virtual formality prior to trial. Very few
cases are dismissed at arraignment.
6 things that must be done after arraignment:
| 1. |
The defense attorney
must vigorously defend his client's interest.
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| 2. |
The defense attorney must present
all options to his client with recommendations
and professional opinions. |
| 3. |
The defense attorney must prepare
his client completely for each step in the
legal process. |
| 4. |
The defense attorney must review
all possible defense scenarios and interview
all witnesses and review evidence in support
of the clients case. |
| 5. |
The defense attorney must develop
a theme to the defense. The theme is composed
of a powerful defense strategy and a course
of action to present reasonable doubt or otherwise
minimize exposure or punishments. |
| 6. |
The defense attorney must gather
all evidence and prepare and identify any
witnesses. |
Pre-Preliminary Hearing
This involves a meeting between prosecution and
defense. Topics discussed in most states include
plea bargain opportunities, strengths and weaknesses
of the prosecutions case, and intangible factors
of the case, such as the defendant's character
and past history.
Preliminary Hearing ("Mini-Trial")
At the preliminary hearing the judge determines
whether sufficient evidence exists to send the
case to the upper court for trial. The judge reviews:
| 1. |
Whether there is
probable cause to believe a crime was committed,
and |
| 2. |
Whether there is probable cause
to believe the person in front of the court
is the one who committed the crime. |
Rarely does a judge overturn the prosecution
and dismiss the case. In fact, the prosecution
or judge can add additional charges to the case
at this hearing. The length of a preliminary hearing
varies by state. It may last three hours. It may
last three questions. The defense attorney can
use the preliminary hearing as a strategy session.
The standard of proof is lower during the preliminary
hearing than the trial. The preliminary hearing
is utilized by the judge to ensure there is sufficient
evidence to review the case. The preliminary hearing
assesses reasonable doubt and the facts of the
case.
8 things to expect at the preliminary
hearing:
| 1. |
Preliminary hearings
are shorter than trials. |
| 2. |
The preliminary hearing is
not a finding of fact. |
| 3. |
The goal of a preliminary hearing
is to screen the prosecution's case. |
| 4. |
The prosecution is only required
to show "probable cause" at the preliminary
hearing. |
| 5. |
The preliminary hearing will
be conducted in front of a judge. No jury
will be present. |
| 6. |
Although the defendant may
be held to answer for trial, that does not
mean the defendant is guilty. |
| 7. |
Neither the prosecution or
defense will present their whole cases; they
want to save their case strategies for the
trial. |
| 8. |
Cross examination of police
officers or witnesses will occur. |
Superior Court Arraignment
The defendant is arraigned and pleads guilty, not
guilty or no contest. At the arraignment, the identity
of the defendant is confirmed, bail is established,
charges are ascertained and an attorney of record
is confirmed.
Pre-Trial Conference
The pre-trial conference is a formal setting
where plea bargaining occurs. The prosecution
may offer alternative sentencing. The charge may
be changed to a lesser charge. The number of felony
counts may be dropped. A lesser punishment for
the same charge may be agreed upon.
The pre-trial conference is used to introduce
evidence, submit motions, identify procedural
issues, exchange witness lists, and plea bargain.
Most cases that do not reach trial are plea-bargained
at the pre-trial conference.
Expectations at the pre-trial conference:
- The defense presents
a legal case on behalf of the defendant.
- Further discovery takes place.
- Factual and legal evidence is established.
- Debate over sufficient evidence occurs.
- Review on whether the facts are sufficient
occurs.
- Strengths and weaknesses of witnesses are
examined.
- Issues with the evidence are submitted.
- Motions may be made and heard. |
Sample motions the defense attorney
can file and argue at a pre-trial conference:
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-To Suppress evidence
based on a Violation of the Defendant's Constitutional
Rights
-To Dismiss the information and complaint
-To Compel discovery
-To Sever counts
-To Dismiss for Lack of a Speedy trial
-To Modify or reduce bail
-Bill of particulars
-To Reduce charges
-To Change Venue
-To Strike a prior conviction
-To Preserve evidence
-To examine a police file |
Trial
Each state has different rules for Trials. To
list all the possible scenarios that could happen
at Trial is to exhaustive a list to be referenced
here. Some states provide the right to choose
between a trial by judge or jury. Others do not
allow the defendant a jury trial in misdemeanor
cases. The number of members on a jury varies
by state. However, in California one has the right
to be tried by a jury of 12 of their peers.
A jury trial is the fact finding phase of the
case. It is the in-court examination and resolution
of a criminal case. At the trial a decision will
be reached as to the innocence or guilt of the
defendant. Unlike a plea-bargained settlement
which completes the case prior to trial, a trial
introduces risk for both the prosecution and defense.
Neither side knows which side will prevail. The
trial begins with the prosecution's opening statement.
The defense attorney may also present an opening
statement at this time or he may reserve his opening
statement until the beginning of his case-in-chief.
The prosecution presents his case to support the
charges and then rests. The defense presents his
case to refute the charges and then rests. Closing
arguments by both the prosecution and defense
conclude the presentation part of the trial. The
jury then deliberates innocence and guilt.
In a trial, expect the following
to occur:
-Jury selection
-Opening statements are presented by both
the prosecution and the
defense
-The prosecution presents their case
-The defendant cross examines
-The defense presents their case
-The prosecution cross examines
-Closing arguments are presented by both the
prosecution and the
defense
-The prosecution, defense and judge decide
on specific instructions to
the jury
-The judge instructs the jury on rules
-The jury deliberates
-The jury submits their verdict
Acquittal/Not Guilty Verdict
The two words every criminal defense attorney
loves to hear - "Not Guilty." The
next best two in line are "case dismissed."
Sentencing
Sentencing is a court hearing where the
judge determines punishment. The judge determines
the length and type of punishment at a sentencing
hearing. Witnesses are generally allowed
to speak, requesting either a lighter or
stiffer sentence. The defendant may make
a statement to the court.
A defendant may be sentenced to Probation
instead of prison/jail. However, he/she
may be ordered to do some local custody
time as a term of his or her probation.
If a person violates his/her probation,
he/she may be incarcerated.
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: the low term, mid term, and high
term. Lawyers argue about the proper term
based on the facts of the particular case.
The final word is within the judge's broad
discretion.
Sentencing modifications occur when part
of a person's sentence becomes inapplicable
to their case. For example: Suppose a man
is convicted of the crime of spousal abuse,
and part of his sentence includes that he
must stay away from his wife. However, if
the man and the wife decide to reconcile,
then it would be appropriate to ask the
court to "modify" the man's sentence.
7 things to consider regarding
sentencing:
| 1. |
The judge
almost always determines punishment.
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| 2. |
The judge may be required
to follow specific sentencing guidelines.
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| 3. |
The eighth amendment
to the U.S. Constitution provides that
punishment may
not be cruel or unusual. |
| 4. |
Factors such as no criminal
history, a good public record, and professional
or
personal responsibilities may persuade
the judge to provide a lighter
sentence. |
| 5. |
A previous criminal record,
use of a dangerous weapon, gang ties,
degree of
injury or financial loss, and the type
of conviction may persuade the judge
to
provide a harsher sentence. |
| 6. |
Judges almost always
give repeat offenders stiffer sentences.
|
| 7. |
If the defendant is
not planning on appealing the case,
this may be an
appropriate time to acknowledge responsibility
in order to convince the judge
to give a more lenient sentence. |
Circumstances That Can Adversely
Affect Sentencing:
(1) Previous Criminal Record.
A defendant's past record is a large consideration
when determining an alternative or lesser
sentence within the lower end of the sentencing
guidelines. A previous record can also affect
the level of security of the facility that
the defendant will be sent to as a result
of sentencing. Most correctional facilities
use a point system unfavorable to repeat
offenders costing them time deducted from
their sentences. On the contrary, first
time offenders are frequently sent to camps
or community centers instead of penitentiaries.
2) Enhancements.
Most states carry statutes which call for
stiffer penalties if a defendant's crime
involves the use of a dangerous or deadly
weapon, serious or permanent bodily injury,
or crimes against youth or the elderly.
Enhancements generally increase the sentencing
penalties. In some states, enhancements
are not a separate charge and are considered
part of the primary offense such as armed
robbery.
Sentencing Alternatives
Some alternatives to jail that might be
negotiated are:
-Detox Programs
-Electronic Home Monitoring
-Residential Treatment Centers
-Counseling
-Weekend Work Programs
-Community Service |
Collateral Consequences of a
Conviction
In addition to any sentence imposed by
the court, a conviction can have a number
of independent consequences. On felony cases,
these consequences can include, but are
not limited to:
-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.
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| Parole
A conditional release from prison entitles
a person receiving it to serve the remainder
of his/her term outside of prison, but technically
the person will still be under the Department
of Corrections. Typical conditions of parole
can include:
-Periodic meetings with parole officers.
-Foregoing the possession of weapons and not associating with known criminals.
-Staying away from designated areas
-Drug testing |
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To find out more information about these topics, please call us direct at
1-800-7700-DUI. |
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The Law Offices of Jeff Voll
Main Office:
3460 Wilshire Blvd., Suite 1209
Los Angeles , CA 90010 |
Law Office of Garrett T. Ogata
3841 W Charleston Blvd. Suite 205
Las Vegas, NV 89102
email: jeffvoll@yahoo.com |
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