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Misdemeanor: The Process from Arraignment
to Appeal
Arraignment
The defendant may plead guilty, not guilty or
no contest. If the defendant pleads guilty or
no contest, he may expect to be sentenced. Very
few cases are dismissed at arraignment.
At an arraignment, it is possible for the prosecution
to waive or eliminate the possibility of jail
time for the defendant. If there is no possibility
of jail time, the defendant may not be entitled
to a court appointed attorney. In addition, the
defendant may not be entitled to a trial by jury.
In that case, the judge would be the trier of
the facts as well as the law. The defendant would
most likely be tried by the judge.
Once the arraignment is completed, the defendant
prepares for trial and sets a pre-trial date.
At pre-trial, the prosecution may make an offer
to the defendant to plea to a lesser charge or
to the charged offense without suffering the maximum
penalties (plea bargain).
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-Trial Conference
This involves a meeting between the prosecution
and the defense. Topics discussed include plea
bargain opportunities, strengths and weaknesses
of the prosecution's case, pretrial motions and
intangible factors of the case, such as the defendant's
character and past history.
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.
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 defense attorney loves to
hear - "Not Guilty." The next best two
in line are "case dismissed."
Sentencing
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. In addition,
in some jurisdictions the court may ask for a
report from the probation department prior to
sentencing the defendant.
7 things to consider regarding sentencing:
| 1. |
The judge almost
always determines punishment. |
| 2. |
The judge may be required
to follow specific sentencing guidelines.
|
| 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. |
Appeals
After a defendant has been found guilty by way
of trial, the defense attorney may request a higher
court to review specifically identified flaws
in procedure with the possibility of changing
the lower court's decision. It is important to
recognize that the appeals process may only begin
after the defendant has received the final verdict.
An appeal occurs after the court has rendered
its decision. The goal of an appeal is to have
a higher court review and change the decision
of the lower court, or send the case back to re-trial.
There are two key types of appeals. One attempts
to overturn the court's decision. The second attempts
to overturn the courts sentencing decision.
The defendant should ask his defense attorney
to thoroughly review a transcript of the entire
trial prior to preparing an appeal. In an appeal,
no new witnesses and no new evidence will be available.
Each party prepares briefs that the judges review
prior to rendering a decision.
Once the trial has been completed, the facts
have been decided. They can't be changed by an
appellate court. The appeals process reviews defects
in procedure of the trial. If the defense attorney
can identify substantial improper procedural issues,
he may be able to win the appeal. These defects
in procedure may include any of the following:
- The judges instructions
to the jury were improper
- The prosecution made improper comments to
the jury
- Jury tampering
- Improper introduction of evidence
- etc.. |
The timeline of the appeals process varies from
state-to-state. Some post conviction tactics to
get relief for the defendant include:
Motion for Acquittal
Motion For New Trial
Motion For New Sentencing
Appeal To Appellate Court
Appeal To State Supreme Court
Appeal To U.S. Supreme Court
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Expungement Process The
expungement process differs from state-to-state.
Expungement is a legal term for sealing the criminal
record. By having a criminal conviction expunged,
the conviction will be deemed not to have occurred.
However, in some cases, even an expunged record
is still open for law enforcement purposes. In
addition, applicants campaigning for public office
or applying for a federal job are required to
make their conviction public even if it were expunged.
6 Facts about Expungements:
| 1. |
Even when a conviction
has been expunged it can still be used against
the defendant's sentence if the defendant
is again convicted of a crime. |
| 2. |
Not all convictions are eligible
for expungement. Laws differ state-by-state.
|
| 3. |
In many states defendants can
not expunge felony convictions or sex offenses.
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| 4. |
Convictions usually cannot
be expunged until one year has passed and
the defendant has completed serving the sentence
or when the probation period has expired.
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| 5. |
Expungements usually may not
occur if the defendant faces new charges. |
| 6. |
The federal law does not recognize
state court expungement orders. |
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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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