Bail is a payment made to the court allowing a defendant to be released from custody, and is returned once the case is completed and after the defendant appeared for all court dates. Courts will also accept real estate if its value is twice the set bail amount. Instead of paying the full bail amount directly to the jail, you have the option of using a bail agent. Usually they will charge a nonrefundable fee of 10% of the bail amount set by the court or police. It is important to know that bondsmen often require collateral, like a financial interest in a car or house, in addition to the bail bond, and that even if you attend all scheduled court appointments, the bail agent will keep your 10% fee. If you plan to attend all court dates, posting the total bail amount with the court will save you money in the end, as the court returns the entire bail to you, but if you miss any of your court dates you will lose the entire bail. You should also know in addition to forfeiting the bail, it is a crime not to appear in court after bail has been posted.
Bail may be reset by a judge at your first court appearance. Bail is initially set at the jail, according to a Bail Schedule, which specifies certain amounts of bail depending on the offense. Bail amounts are much higher for felony offenses than misdemeanors. The more serious or violent crimes carry the highest bail. However, judges can deviate from the bails schedule and increase or lower bail, deny your chance to post bail, or release you without posting bail (called Own Recognizance Release or O.R. Release). For example if you have no criminal record, and a job to support your family, a judge might be swayed to lower bail.
The arraignment is often the first court appearance in a criminal case, and must be held “as quickly as possible" following arrest according to the U.S. Supreme Court (Mallory v. U.S.). Arraignments are held quickly after an arrest as a protection for defendants. Police and prosecutors must have valid evidence gathered, and cannot hold you indefinitely while deciding how to proceed in court.
The main points at an Arraignment are as follows:
· The defendant is provided with a written accusation of the charges against him or her,
· The defendant responds to the charges, by pleading guilty, not guilty, or no contest
· The judge decides on any bail issues,
· The judge sets a tentative schedule for upcoming court dates, including the pretrial conference, preliminary hearing, hearing on pretrial motions, and the trial itself.
Shortly after charges have officially been filed, and only in felony cases in California, Preliminary hearings are held. Their purpose is simple: the judge decides whether there is probable cause to hold a trial on the charges against the defendant, or whether the case should be thrown out for lack of evidence. The prosecutor calls witnesses and presents evidence to support their argument that a trial is necessary, and the defense can choose to cross-examine these witnesses and argue a lack of evidence. Often, defense attorneys will not try to prove their client innocent at this hearing, but rather use the preliminary hearing to get more information and find out details of the prosecution evidence.
“Prelims" are a lot like trials, there is no jury, and the prosecution only has to prove that a trial is necessary, not that the defendant is guilty of the accusations. Several outcomes are possible. The judge can rule that the defendant should stand trial for the original charges, he or she can reduce the charges to a less serious offense or, less commonly, the judge can dismiss the case. Dismissals are rare mainly because the prosecutor only has to prove that probable cause exists, that their charges are worth investigating at trial. Also, we mentioned above, defense attorneys are likely to save their strongest arguments for trial, since they know they are unlikely to get the case dismissed at the preliminary hearing.
Always before a trial, and sometimes before a preliminary hearing (only in felony cases, see previous section), the prosecutor, defense attorney and judge meet and discuss a possible plea bargain. In these negotiations, the two sides present their opinions about what would be a fair resolution in the case, taking into account the defendant’s criminal history and the circumstances of the alleged crime. A good defense attorney is likely to create a “mitigation package" which shows the personal situation of the defendant, and attempts to convince the prosecutor that the defendant is a good, normal, everyday person who simply made a mistake.
Generally the mitigation package contains letters from family members or well-regarded community leaders (e.g., politicians, religious leaders, teachers, etc).
To understand how plea bargaining works, it is important to know that the prosecutor has control over which charges are filed against the defendant, and the judge decides the sentence. Often the charges set the range of possible sentences, and it is ultimately up to the judge to decide whether to choose a harsher or more lenient penalty. After negotiating a plea bargain the defense attorney will discuss the proposed disposition with the client. It is completely up to the defendant to accept or reject the plea bargain.
If your case gets all the way to a jury trial, here is what you can expect. First, a jury is selected. Approximately 100 citizens are brought to court. The judge, defense attorney and prosecutor question them in an effort to find 12 fair and impartial jurors. Next, the judge decides whether certain evidence will be allowed during the trial. Once that happens, each side makes an opening statement to the judge and jury. An opening statement is a speech the attorneys give to the jurors telling them about the evidence that will be presented at trial. After opening statements, the prosecution calls witnesses to present its case. The defense has an opportunity to cross-examine the witnesses, and then the prosecution can ask them questions once more. After the prosecutor has presented all of his or her evidence they will “rest" their case.
Once the prosecution has finished presenting their case, the defense may present their case. The defense may call and question witnesses and present evidence. Just like before, the prosecution gets a chance to cross-examine the defense’s witnesses, and the defense can ask follow-up questions before they “rest" their case. The defense may not call witnesses or present evidence if they feel that the prosecutor has not proven their case.
After both sides present their case, the judge, prosecution and defense decide what legal instructions to give the jury, and then each side gives their closing arguments. The closing arguments are the chance for each side to argue that the evidence proves their points. For the prosecutor they will argue that the defendant is guilty, and the defense, will argue that his or her client is not guilty. The judge then explains to the jury how to fulfill its duties, and what laws apply to their decision before all twelve jurors leave the courtroom so that they may deliberate and come to a decision if they can.
As we mentioned in the pre-trial conference section, sentencing is a decision made by the judge, either following a guilty or no contest plea, or a guilty verdict at the end of a jury trial. The charges filed against a defendant can give a range for sentencing, but the judge makes the final decision. So, how does a judge decide the sentence? The circumstances surrounding the crime and arrest, or a defendant’s history often affect a judge’s decision. A repeat offender found guilty of a violent crime is more likely to receive a harsher sentence than a first time offender. Because of this, defense attorneys attempt to show that “mitigating circumstances" should sway the judge to sentence the defendant to a more lenient sentence. For example, they might argue that their client was merely an accessory to a crime or committed it in a carefully non-violent manner while under great personal stress. Also, “aggravating" circumstances, which make the crime seem worse, can lead a judge to add to your sentence. In this regard, violent crimes proven to be gang related or committed with a deadly weapon will hold stricter mandatory sentences automatically.
An appeal is a way to challenge a jury’s verdict at trial. In an appeal, you cannot make new arguments, introduce new evidence or call witnesses. Instead, you challenge the decision made by a jury. Also, names and terms change, as the defendant in the previous trial is now called an appellant. To begin the appeal process, you must file a Notice of Appeal. It can’t be filed until the judgment, an official document stating the jury’s guilty verdict and judge’s denial of any post-trial motions, has been entered, and must be filed very soon after judgment is entered. Upon filing an appeal, you begin a process in the higher level appellate court.
The appellate court will set a schedule stating when appellate brief are due, and when arguments will be heard in court. An appellate brief is a written explanation of how the lower court’s decision violates law, and cannot contain new evidence or introduce new arguments about your innocence. In your brief, your attorney will cite specific instances that were not handled properly by the trial court, and include portions of the transcript, a written record of everything that was said in the original trial. After submitting the brief, the judge may hear oral arguments from both sides, but this is becoming less common. It is more likely that the judge will make their decision based only on the written briefs. In the end, if the appellate judge feels that the jury made a mistake, he or she can overturn the verdict.
Criminal Defense Attorney