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2 Table of Contents Introduction Arraignment...3 Bonds Readiness Conference....7 Preliminary Hearing Motions... 9 Discovery Suppress Evidence Dismiss Sever In Limine Second Readiness Conference...12 Jury Trial Jury Selection Opening Statements Prosecution s Case Defense s Case Jury Directions Closing Arguments Jury Deliberations Verdict Probation...24 Sentencing About the Author

3 Introduction Everyday, people in San Diego are charged with a misdemeanor or felony and are uneducated about the process they are about to undergo. Am I facing any jail time? What s the difference between a misdemeanor and a felony? Can I get the charges reduced or dismissed? How many times do I need to appear in court? What happens at all of the court dates? These are just a few of the questions we hear at Monder Law all the time. If people knew the answers to those questions in advance, they will be much better off understanding their case and choosing the right attorney for them. The court process for criminals can be quite complicated if this is your first time experiencing the justice system. The first court appearance is called an arraignment, where the foundation for the case begins. Then a preliminary hearing is held for the prosecutor to show the courts that the case should move forward. A second arraignment can occur with the superior court as well. Next, the pretrial hearing takes place. This is where any motions and plea bargains can happen. If nothing is resolved, the case moves to trial. This is where you will ultimately be found innocent, not guilty, or guilty. Throughout this entire process, plea deals, motions, discoveries, sentencing, and probation can all take place. 2

4 After reading this crash course on criminal cases, you should have enough knowledge to understand the process of your case, and be able to choose the best attorney to get the best possible outcome for your unique case. Arraignment Your case has begun! This the very first step in the lengthy process of determining whether or not you are guilty. The arraignment sets up the foundation for the rest of the case. All the administrative tasks that the court is responsible for starts at the arraignment. No arguing or defending will occur at this stage. The following lists the steps to an arraignment: 1. The judge will read the criminal charges against you and your constitutional rights. 2. You will be asked if you have an attorney, or if you need a public attorney. 3. Give your plea to the courts guilty, not guilty or no contest. 4. Set the bail amount. You can also be released at your own recognizance if it applies for your case. 5. Future court dates are set (preliminary hearing, pretrial motions, and trial). These dates are subject to change as your attorney can postpone them to an extent. 3

5 Bonds A bail is the amount of money the court needs to hold in order for you to be set free during your case. If you fail to show up for certain court dates, the court keeps the money. However, if you show up to all your court dates, the money will be given back at the end of your case. Posting bail means paying the amount set by the courts. The amount of money can range from $1000 to $1,000,000 and up. An experienced attorney will have a better chance of successfully requesting the courts to release you at your own recognizance. This means you must argue that you have no flight risk and are not a danger to the public. Again, this all happens at arraignment. If you have a more severe crime or a pending warrant, a hold will be placed. This means that you are unable to post bail. If your case involves illegal immigration, you can still post bail, but you will be transferred into immigration custody where you most likely will be deported. There are multiple ways to post bail. One way is a straight cash bail, where the bail is paid directly from you in full. However, Monder Law constantly sees individuals come to us with high bails that are way over there means. So, bail bonds or a property bond must be used. 4

6 Bail bonds are the most common method of posting bail. A third party bail bondsman will asses the risk involved with your case. Bail bondsman typically charge 10% of your bail. So it costs you $10,000 if you have a $100,000 bond. The bail bondsman will post your bail for you and then collect their money back at the end of your case, netting them the $10,000 that you paid initially. You are not refunded that $10,000. A bail bondsman will also use your house as collateral. So if you miss court, the bondsman has the right to sell your house in order to recover from their loses. The graph below shows why bail bondsman risk assessment is important. As you can see, there is a consistent 6% failure to appear rate for bail bondsman, while personal bonds without a bail bondsman has an almost double chance to fail to appear. Both the bail bondsman and the courts know the statistics and will act accordingly when presented with your case. 5

7 Source: Property bonds are done through the courts. Your property (typically your house) will need to be worth equal to or greater than your bail. This is determined by subtracting any liens on the property from its market value. If you skip your bail, the court will have the right to sell your house to recoup the bail money. If you do not have the money upfront to pay the 10% to a bail bondsman, then a property bond may be right for you. A bail hearing can be used in order to reduce the bail amount. This is done at the arraignment. An experienced attorney will be effective at this. If it fails, a 6

8 formal bail review hearing can be requested to further pursue a reduction in your bail. You can also negotiate with the courts to provide a custom bail plan that meets your financial needs. This can be a combination of any type of bond listed and usually requires an experienced attorney to acheive. Bail can be confusing and intimidating for most people, especially if this is your first criminal case. Monder Law highly recommends contacting an experienced attorney to assess what bail payment method is right for you, and to determine if a reduction in bail is possible. Readiness Conference This is the intermediate step between an arraignment and a preliminary hearing where discoveries and the initial plea deals are given. A discovery is any evidence that the prosecutor wants to use at trial. All evidence must legally be presented. This means that if the prosecutor has any evidence that shows innocence, it must provided. The discovery allows the defendant to be aware of all evidence the prosecutor is using to argue in order to craft the best possible defense. Although a peal deal may be given, it usually isn t that good at first. However, the more evidence that is presented in your favor, the better the deal can get by the time the case reaches the preliminary hearing. 7

9 Now, let s talk about the second major step to a case: the preliminary hearing. Preliminary Hearing The preliminary hearings main function is for the prosecutor to provide probable cause for the courts to move forward with the case. This is usually easy for the prosecutor. However, the defense may also bring in witnesses and force them to commit to any statements made. This can work heavily in your favor because often times the prosecutor offers a much better plea deal when the defense presents their evidence. The defense can also discredit any of the evidence the prosecutor presents, further strengthening your case. This generally happens when witnesses change their stories or have other underlying motives. As a defendant, this can be best case scenario. While it may not be your strongest defense, it can help with the plea deal and if done correctly, may even get the charges dismissed altogether. Don t be too optimistic yet. The prosecutor may have strong evidence to present and the preliminary hearing may in fact work against you. Witnesses could stick to their stories, and additional evidence that was not known at the arraignment time may be provided. The deals 8

10 could get worse and trial can look more and more abysmal. It is the responsibility of your attorney to determine if a plea deal is necessary, or if a trial would yield the best result. A great attorney would anticipate the prosecutor s actions with the evidence on hand to prevent the prosecutor from making any significant advancements at the preliminary hearing. Motions Motions are any requests made to the court, by either the prosecutor or the defendant, to issue an order. An attorney can strategically choose which motions to issue to provide the defendant with the best possible defense. If used correctly, motions can be highly effective. Some of the most common motions are motions for discovery, suppress evidence, suppress statements, dismiss, sever, and In Limine. Discovery This type of motion is more logistical than anything. It requires the prosecutor to turn over all the evidence acquired by law. A discovery motion can prevent the prosecutor from surprising the defense with any evidence not provided at the arraignment. And if the prosecutor provides any additional evidence after the 9

11 motion of discovery is filed, that evidence becomes null and void. In reality, this motion is typically not necessary. The prosecutor usually turns in all of the evidence anyway, so this motion is more of a precaution than it is a defense strategy. Suppress Evidence A motion to suppress evidence is much more interesting than the motion for discovery. This is filed when the defense accuses law enforcement that the evidence they obtained was obtained illegally. Most commonly, this can involve actions during traffic stops, any tests given, and any searches performed. If probable cause cannot be proven and no warrants were given for tests or searches, the evidence involving law enforcement can be suppressed, or null and void. It can get confusing to determine if law enforcement had any probable cause or any search warrants. The law states numerous ways an officer can get probable cause, and warrants can become complex. Consult with an experienced attorney to determine if filing a motion to suppress evidence would be right for you. 10

12 Dismiss This motion acts like an appeal. You are requesting the courts to look at your case with another judge to overrule any rulings or evidence presented. This also applies if the charges against you are not supported by any evidence, and you need another judge to overrule your current judge. An experienced lawyer knows how to use this motion well. It includes speedy trial issues, untimely filings, not enough probable cause, violation in the interest of justice, and too broad of charges amongst many others. If used correctly, the motion is powerful enough to get the case dismissed altogether. Monder Law highly recommends retaining an attorney to take advantage of this motion. Otherwise, this type of defense can be overlooked and not effectively utilized. Sever This motion is more specifically for cases involving multiple defendants. Co defendant cases are often presented with opportunities to throw other defendants under the bus in order to get a reduced sentencing. This is never a good idea. A motion to sever allows a case with co defendants to be split up into multiple cases with one defendant each. This can greatly reduce your 11

13 charges and involvement, and often times results in a better outcome for your case. If your case only has one defendant but multiple charges, a motion to sever can still be issued. This would mean that each of your counts in a charge are tried separately. The potential to reduce charges here are great and is highly recommended by Monder Law if done correctly. Consult an experienced attorney for further details on if this is right for you. In Limine This motion is used in the trial phase. It has the power to exclude any evidence by the prosecutor, and overcome any motions filed by the prosecutor to suppress any defense evidence, Essentially, it acts like a motion to suppress evidence in the trial phase. Usually, both sides of the case will request this motion, so an attorney has to be strategic about how to file these motions. Second Readiness Conference This second intermediate step is the last chance for any motions or plea deals to occur. It essentially is the same as the first readiness conference where any and all evidence is presented. 12

14 The difference is that the evidence must be concrete i.e. transcripts. Only evidence that is confirmed and has enough probable cause may be presented. More and more cases are being settled before trial. The diagram below shows how much significance plea deals have in the justice system (in this case of drugs). A huge amount of defendants choose plea deals over going to trial simply because the deal is too good to pass up in comparison to the potential time they could serve if they went to trial. Source: hrw.org Jury Trial Usually, your case should not have to go to trial. Most cases are settled before then, as the plea deals often make the defendants content. Jail time can be reduced 13

15 to public work service and volunteer hours. Fines can be reduced to a payment plan. Charges can be dropped. These are all attractive settlements. But sometimes a defendant is not satisfied and feels like they have a strong case. If an attorney agrees, going to trial might be right for you. Next, we will go more in depth to look at how a trial works. There are many phases of a jury trial. Here is a breakdown that summarizes these phases: 1. File motions In Limine 2. Selection of Jury 3. Opening Statements 4. Prosecution s Case 5. Defense s Case 6. Jury Instructions 7. Closing Arguments 8. Jury Deliberations 9. Verdict Jury Selection Jury selection is vital to a successful defense. An attorney will ask the jury a series of questions to see which jury members are right for the case, and the jury must answer honestly. This questioning is designed to identify any biases in the jury. As the defendant, however, you want to try and find as many jurors that would sympathize with your case. 14

16 First the judge will ask a series of foundational questions: what s your name? Where do you live? Do you have a spouse and kids? Have you been a victim of a crime? Would anything prevent you from making an impartial and fair decision? All very cookie cutter questions. Then each of the lawyers asks their own questions. There are countless strategies for a defense attorney to select a jury. Attorneys have used computer programs, jury consultants, outside research, or simply ask effective questions to screen jurors. The best methods involve great communication skills and solid preparation to act quickly if a juror gives an unexpected answer. Luckily, you can challenge the prosecutor if you feel they are unfairly screening jurors. This is used when you believe there are biases in the jury that went overlooked, and you are now asking the courts to determine if that bias exists. This method can be effective to trump a prosecution s strategy of choosing jurors. If that does not work well enough, you have the right to dismiss 10 jurors for any reason. So if the prosecution evades your initial challenge, you can use this peremptory challenge in response. The cap of 10 jurors may fluctuate with your specific case. In the picture below, you can see how choosing a jury can directly affect the outcome of the trial. According to 15

17 a study by Duke University, the probability of conviction can fluctuate almost 10% depending on the race of the jury in correlation to the race of the defendant. And that s just race. Many other factors that could gain sympathy from jurors that could significantly sway the outcome of a trial. This is why lawyers spend much of their time asking questions and screening jurors. The jury present is just as important as the defense itself. Source: 16

18 Once the jury is finalized, each of the 12 jurors are sworn in to be impartial and unbiased with their decisions. Another 12 jurors are sworn in and listen to the trial, but only deliberate when one of the original jurors are unable to meet their responsibilities. Opening Statements This is your opportunity to present a first impression to the jury. It is extremely vital that your opening statement is strong, as the rest of the case will be spent deviating the jury from their first impressions of the case. The prosecution starts the opening statements because they have the burden of proof. No actual evidence can be presented yet: the opening statements are designed to provide a foundation and frame of mind for the rest of the trial. After the prosecutor, the defense is allowed to give its opening statement. A skillful attorney can anticipate the prosecutor s opening statement, so your opening statement should be as effective as possible. Again, the opening statement is a just one part of a complete defense. Your lawyer must effectively argue all parts of the trial to get the outcome you want. 17

19 Prosecution s Case The prosecutor s goal is to prove that the defendant is guilty. Therefore, he will call any witnesses to the stand that he feels will help do so. It is more recognizably called the burden of proof. The prosecutor must prove all of the elements in a case. Much like a DUI, if one element of the case cannot be proved, but there is an extremely strong case for the other elements, the defendant can be found not guilty. So, witnesses, experts, and any supplemental evidence (physical, forensics, etc.) all play into proving the defendant s guilt. Some of the strongest of these evidence types is witness statements and testimonies. The prosecutor can ask questions through direct examination and cross examination. Direct examination involves witnesses that the prosecution brings in. It begins the initial questioning of witnesses. The prosecutor asks questions that he or she already knows the answer to, but must ask in a way that does not suggest a certain answer. Certain witness statements may build on each other, so the order of witnesses is important too. It is all part of the prosecution s plan to prove guilt. The case could stop here! A defendant can file a motion to dismiss if, at this point, the prosecution s case is not 18

20 compelling enough for the jury. Most likely, however, the trial will move on to the next series of questions. The next form of prosecution questioning is cross examination. This is where the prosecution asks questions to any witnesses that the defendant brings in. It is meant to undermine any of the defendant s evidence concerning witnesses. It can be highly effective and should be prepared for accordingly. An experienced attorney will anticipate these questions in advance and prepare a series of questions to address what was brought up by the prosecution. Defense s Case Now that the prosecutor has exercised priority in questioning witnesses with its burden of proof, it is time for the defendant to ask questions. It is the same format as the prosecution: direct examination and cross examination. You want to attack the weakest element of the prosecution s case. As stated above, if one element cannot be proven, then you will be found not guilty. So all evidence, including physical evidence, witnesses, experts, character letters, and anything else should be focused towards the weakest element in the prosecution s case. You may even want to testify if it is applicable to your unique case. An experienced attorney will be able to determine that for you. Do not make any 19

21 decisions on your own or represent yourself. Statistically, these cases do not end well for the defendant. The defense should always be proactively listening to the prosecutor's case. Your attorney should know when to make certain objections to witness statements any evidence presented if the evidence is questionable. Objections can be a great way to deem evidence unusable for the case. It is extremely important to listen to faults in the prosecution s case because it can either be objected or attacked when it is your turn to ask questions and present any evidence. This is the majority of an attorney s job: to provide the best possible defense case. The better attorney you hire, the better your chances are at meeting your legal goals. Monder Law highly recommends finding a lawyer with a track record of successful cases. You want to make sure your lawyer is the right one for you. Jury Directions This occurs when the trial is basically finished. All questions have been asked. All witnesses have testified. All evidence has been presented. This is where the jury is educated on the laws associated with the case, as well as how to go about deliberation. For example, if the case involves injury, the jury will learn about injury law, product liability law, an explanation of negligence etc. 20

22 Many jurors may be unfamiliar as to what is the actual law. These directions prevent a jury from deciding their stance based solely on what they believe is just. It must be a decision revolving around the laws in your jurisdiction. The more complex a case become, the more time is spent on jury instructions. For example, a case involving comparative negligence requires an explanation of that, as well as an overview on negligence. It becomes more and more important when there are several laws involved, several charges, multiple defendants, etc. There s not really anything you can do during jury directions other than wait for it to pass. Closing Arguments The burden of proof follows the prosecution to closing arguments. They are allowed to have the final word to the jury. The prosecution will respond to your closing argument and to de credit any conclusions the defense has drawn. Before that, your attorney will be trying to convince the jury that there is reasonable doubt in the case, and not all elements were proven guilty. This is very abridged, as a closing argument can go on for awhile. It is the last chance the defense has at persuading the jury of their side. 21

23 The closing arguments are crucial to a successful defense. Most of its success is based on keeping the jury engaged. The more engaging of a speaker your attorney is, the better chance he has to capture their attention and persuade the jury that the defendant is not guilty. Make sure that your attorney has exceptional public speaking skills, as this is a must have for any great attorney. This can be determined by going to multiple consultations and determining which attorneys kept you most engaged. If they can t keep you engaged at their office, there s no way they can keep a bored jury engaged. Jury Deliberations There is nothing you can do during jury deliberations. It occurs in a back room, out of sight of the courtroom and the parties involved. The jury will decide whether you are guilty or not guilty. The jury can ask questions, with the judge as a messenger, for anything they need to know to make a final decision. Obviously, each party will probably have a different answer to the question that puts their side in the best light. The court knows this, so the judge usually gathers the answers from each side and goes back to the jury with his final response. 22

24 Again, this is the moment of truth. The jury will come back with a verdict, and there is little you can do now to change their minds. It is possible that you have a hung jury where they cannot come to an agreement, allowing you to have another trial in the future. This is good, since you would not be found guilty. Verdict All the preliminary hearings, all the argument preparations, all the plea negotiations, and hours of stressing have come down to this single moment. The verdict is the jury s official statement of guilty, not guilty, innocent, or they cannot decide and it is considered a hung jury. Innocent and not guilty will have the same ultimate outcome: acquitted of all charges. Innocent just means that there is evidence that proves your innocence. Not guilty involves reasonable doubt. Again, the decision must be unanimous. All jurors must agree on the verdict. Otherwise, as stated above, a hung jury occurs and you will have another trial in the future. This is to ensure that the burden of proof has been met, and the defendant is without doubt guilty. If found guilty, you must serve the penalties associated with your case, which is ultimately determined at 23

25 sentencing. Your plea deals may have been less, but going to trial was the risk you took. Fortunately, you may have the option to appeal the decision. Whether or not the courts accept the appeal is up to them, but it will buy you time from being sentenced to any jail time or fines that may be imposed. You will be sentenced within 20 business days of your conviction, so you are not waiting around for years to be sentenced. Probation If probation is possible, you will meet with a probation officer before the sentencing hearing. This is to determine if probation is possible in your case. At this point, it could be best case scenario for you and should not be taken lightly. A lot of little things can be done to maximize your chances at getting a recommendation for probation at your sentencing hearing. You must show that you are taking the probation officer and the meeting seriously. It s important to show remorse and articulate you have no intention of committing a crime again. The last thing a probation officer wants to do is put you on the streets just so you can become a repeat offender. If no remorse is shown, it is likely that you will not get probation because you will be deemed too likely to commit the same crime again. Therefore, it is vital that you are 24

26 extremely remorseful to your probation officer during the whole meeting. This graph shows the likelihood of a convicted felon becoming a repeat offender. You can see that although the numbers are decreasing, the percentages are still staggering. It is the probation officer s job to reduce these numbers as much as possible thus only giving probation to criminals that are unlikely to become repeat offenders. Source: Probation can be negotiated depending on your circumstances. If the crime involves substances, showing you are already in rehab programs proves to the probation officer that you are taking the initiative and are serious about your treatment. If your case involves disorderly conduct, public work service and anger management courses can be perfect to show the 25

27 probation officer that probation would be greatly beneficial. Sentencing So, you have already been convicted and now are awaiting the penalties involving your case. Possible penalties may include fines, jail or prison time, probation, a suspended sentence, any restitution, community service, substance rehabilitation, etc. The sentencing judge may be a different judge from the judge in trial. The job of the sentencing judge is to craft the appropriate sentence based on the severity of the crime, any priors, and what the courts deem as the best sentence to prevent this criminal for committing a crime again. The sentencing judge will also look at the criminal history, the nature of the crime, personal circumstances, economic circumstances, social circumstances, and any genuine remorse shown by the convicted involved. Therefore, at this point, it is extremely important to show ultimate remorse. The methods best for your case can be determined by the experienced attorney you hired. 26

28 About the Author Vik Monder is one of the top trial attorneys in San Diego, specializing in criminal defense and DUI. He graduated from Thomas Jefferson School of Law in San Diego at the top of his class. He has also been featured on Fox, CBS, NBC, and ABC News. Founding Monder Law Group in 2012, Attorney Vik Monder has been voted a Top 100 National Trial Attorney, Top 40 Under 40 Trial Attorney, 2014 Client Satisfaction Award, and a 2015 Rising Star by Super Lawyers. Avvo, Yelp, and Google+ all contain resounding full star reviews, praising Vik Monder for his consistent results in the courts. He wrote this guide to better educate the public on how to handle DUI s and to bring transparency to an otherwise confusing topic. Call for a free consultation to assess how to get the best possible outcome for your case. 27

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