1 What can I expect facing criminal charges? Being charged with a crime can be one of the hardest things you will ever have to deal with. The American Criminal Justice system is not designed to be stress free. Instead, it is a long process, frustrating, and it is a system built upon guilty pleas. We will likely always have a backlog of cases, and if prosecutors offices had to actually take every case they filed to trial, the system would implode. Because they do not have the time or resources available to try every case, in many cases, they will offer plea offers to convince you to give up your Constitutional Rights and plead guilty to a crime. In many cases, this can be appropriate, but unfortunately some innocent people plead guilty out of frustration just to be done with everything. Obviously this is a mistake with long lasting consequences. No matter where you are in the process, the purpose of this guide is to answer any questions you might have about the court procedures you face. What to expect on your first court date No matter how you are notified of your first court date, it can be a daunting prospect for someone who has never had to experience the criminal justice system. You could have a loved one in custody, or maybe you received a ticket or a summons in the mail. Regardless, you need to understand that not a lot is going to happen at that first court date. I have spoken to people before who have an understandable fear that they will be going to trial when they first show up. What you need to know before your first court date is that this is a long process, and you need to temper your expectations on day one. The first court date is typically when you finally get a copy of the evidence against you and receive an offer from the government. The evidence is what makes this first court date important. Between the time you were arrested or cited, and the first court date, the prosecutor looks at the evidence against you and decides how to proceed. Unfortunately, you do not get the evidence until you go to court and are arraigned. Being arraigned essentially means that you show up to court and enter a not guilty plea. It does not matter if you believe you are guilty or not, you will enter a not guilty plea on your first court date. We start and stop every case with what does the evidence show, so you cannot really know if the government has the evidence against you until you can have your evidence evaluated by an experienced criminal defense attorney. Your first court date will involve waiting in the courtroom for a long time until your case is called, then receiving your evidence and getting a continuance. If you are in custody, sometimes you can get relief for your bail so you can get out of custody, but there are no guarantees. If you do not have an attorney for your first court date, I have never seen a Judge turn down a request for a continuance to another day in order for you to talk with an attorney. Now if you repeatedly ask for continuances, eventually the Judge will deny the request, but never on the first appearance. Typically, if you have an attorney with you at your first court date, your case will be one of the first called, and you will be in and out much faster than everyone else. Should I hire an attorney? The perfect answer to any legal question is it depends. I believe everyone should at least consult with an attorney. If you qualify financially, you can rely upon the services of a public defender. In California, every County handles public defenders a little differently. For example, Santa Barbara County has full time public defenders who act as a government agency. San Luis Obispo County contracts out the service to a law firm who sends public defenders to the court room on a contract basis. Though the systems are different, the public defenders you see in the court room are good people who know the law. I worked as a public defender for many years, and during my time I had clients ask a lot of
2 demeaning questions like whether they needed to hire a real attorney, or even compliment me by saying they believed I was good enough to be a private attorney. The reality is public defenders are like any group of people, some are fantastic, some I wouldn t trust with a parking ticket, and many are in between those two extremes. You need to make the decision whether you entrust your future with the attorney you are assigned as your public defender. I will tell you with confidence though that not every private attorney is going to be an upgrade. One of the biggest problems lawyers face is that no one really teaches you how to be a great lawyer. You have to find the right mentors to teach you and help you grow. I had seven wonderful mentors, and I still seek out opportunities to learn. If your private attorney is doing things wrong, just because they have been making the same mistakes for twenty years does not make them a good attorney. So regardless if you have a public defender or a private attorney, finding an attorney you can trust is one of the most important decisions you will make. I have always believed that a lawyer is only as good as his or her reputation. Because of this, referrals are often the best way to find an attorney you can trust. Short of a referral from a satisfied customer, you need to learn as much about your attorney as you can. What is there experience and how did they get it? Do they take the time to answer all of your questions? Do they treat you like a person or like just another case? Do they have a strategy for your case? Are they pushing a guilty plea from day one? I know if I mistreat even one client, I can say goodbye to my reputation, and rightfully so. These are all important considerations when determining who to entrust your legal future with. Enduring the Grind What I mean by the grind is the endurance required in repeatedly showing up for long court appearances. It is frustrating, it is inconvenient, and it can wear you down. You will likely not resolve your case at your first court date, and you should also not want to. It is exceptionally rare that you will show up to your court date and have your case dismissed. That is the best possible outcome, and most dismissals need to be earned through hard work. I have seen people plead guilty just to get out of jail or to get out of coming to court every month. I always advocate taking the short term pain to secure your legal future. I am thinking of one client in particular right now who was accused of domestic violence. The evidence was not there in his case, and in fact I believe he was innocent. He pled guilty against my advice out of frustration with the system. He was tired of coming to court and had reconciled with his girlfriend. Three months later, they got into a verbal argument and she called the police. Now he was back in court with a domestic violence conviction on his record. What that meant is now his offer was much worse because he had a history of domestic violence. He could not realistically testify at trial because as soon as he did, the jury would learn about his prior conviction. He set himself up for failure. I know court can be frustrating and stressful, but taking the quick way out will never have good consequences in the future. The reason I say you should not resolve your case at your first appearance is you really need to think through your actions and not make a snap decision. I encourage my clients to really think it over, and to talk it over with family members as well because your decision will affect everyone around you. Endure the short term grind to ensure you make the right decision in the long term. Should I talk to the police? The short answer is no, never talk to the police without first talking with an experienced attorney. We have all seen Law and Order, and so we have all heard out Miranda rights. If you haven t, you have the right to remain silent, everything you say can and will be used against you. You have the right to an
3 attorney, if you cannot afford an attorney, one will be appointed for you. You typically hear this speech by the Detectives on Law and Order as they are arresting a suspect. Take everything you have seen on TV and throw it right out the window. The police do not read you your rights as they are arresting you, they read you your rights as they are questioning you. However, there is a catch, they only have to read you your rights if you are in custody. What that means is when a police officer first arrives on the scene, before he or she arrests you, they may be asking you questions. For most of us, when a police officer is questioning us we do not feel like we can just walk away. However, in court that officer will testify that you were free to leave at any time, meaning Miranda does not apply so you do not need your rights read to you. If you are ever being questioned by the police, politely and respectfully ask if you are free to leave, and if so walk away to call a lawyer. If you are not free to leave, ask for an attorney and do not talk until you do. One common police trick will be to invite a suspect to the police station to have a talk. Many times, they have already decided you are not leaving the station at the end of that conversation, but they avoid reading you your rights by saying you were there voluntarily and were free to leave at any time. If you are ever invited to come to the police station to make a statement, call an attorney instead. You may be asking yourself what the harm is in talking. First of all you need to know that the police are not only allowed to lie to you, they are trained to do so. Of course, if you lie that will be held against you. That is not a level playing field. Secondly, make no mistake that your words will be taken out of context. I tried a murder case years ago where the police interrogated a witness for twelve hours, but only recorded the ten minutes that was favorable to the government, the rest they wanted us to take their word that nothing bad happened. Third, are you willing to bet that under pressure you will say everything perfectly? Do you have that much experience speaking to strangers where every word could potentially send you to jail? Do yourself a favor and say nothing. Do not ask the police if you need an attorney, ask for an attorney, and once you do never reengage with the police. If you do, they are allowed to interrogate you without reading you your rights or providing you with an attorney. For the sake of your future, do not under any circumstance make any statement whatsoever to the police. All the government has is hearsay I cannot count the number of times I have heard complaints from clients that the government only has hearsay against them. Let s talk about what hearsay is, because it is likely a term you hear on TV or in the movies, but they never explain it. Hearsay is an out of court statement asserted for the truth of the matter asserted. Let s break that down in plain English. The first part is that it is an out of court statement. If a police officer or victim made a statement, but they come into the court room to testify, that is not an out of court statement. Their testimony is evidence that the jury can and will consider. If you made a statement, whether to a friend or the police, your statement is specifically excluded as hearsay. What that means is a police officer or friend can come in to court and talk about things you said in the past, and that is evidence the jury can and will consider. Now let s talk about the other half of that definition, for truth of the matter asserted. Did you know there are lots of exceptions to the hearsay rule? For example, if a witness is describing something startling as it happened, that statement could come into evidence even if the witness is not present. That is only one of the exceptions, trust me there are a lot more and I cannot list them all here without a) boring you, and b) making this guide entirely too long. What you need to know as a general rule about the evidence against you is that it can be made up entirely of a victim or police officer testifying, and it could be enough to convict you. Every case is different, and you should consult with an attorney about what the evidence in your case shows.
4 Should I go to trial? The decision to go to trial is one that only you can make. Understand that going to trial is a high risk, high reward choice. The other thing to consider is going to trial is expensive. The government is going to offer you a plea deal in exchange for giving up your Constitutional Rights to a trial. However, if you reject that offer and go to trial, they will not cut you any breaks at sentencing. They are out for blood at that point. The reason is that going to trial takes a lot of time, money, energy, and resources. The way they see it, you had your chance and now you have to accept the consequences of losing. On the other hand, there are lots of reasons to go to trial. If you are innocent, you should fight for your rights. If the government is not giving you a fair plea offer, maybe you need to go to trial and fight for a better deal at sentencing. Maybe there was no offer and you have no choice but to go to trial, I have certainly seen that before but it typically happened in really bad cases. Trial is an all or nothing prospect, and you need to consider the benefits of taking a known quantity in a plea agreement vs. facing the maximum punishments in your case. It is never an easy decision. Secondly, trial is expensive. If you hire a private attorney, going to trial will cost a lot more money than a guilty plea. No attorney can guarantee you a result, and anyone who tries is both a fool and a liar. Before you pay a lot of money to an attorney, you need to be certain you have placed your faith in the right attorney. Secondly you need to know that despite how much money you pay someone, you can still lose, and you need to be prepared for that. What will happen at trial? When trial finally arrives, there is a certain procedure that is followed in every case. Again, take everything you have seen on TV and throw it out the window. You are not going to see that dramatic moment where a witness breaks down crying to confess they set you up or confess to the crime themselves. Lawyers know the answer to every question before they ask them. Only twice in ten years have I asked a question I didn t know the answer two, and both times I had to take that leap of faith I was scared to death. We like predictability and control so we leave nothing to chance. You need to discuss with your attorney early on what the trial strategy will be. Your attorney should patiently answer all of your questions so you can understand what he or she is doing and why. The first step is going to be motions. Motions are important because they shape the way the evidence comes into trial. For example, you can limit a prosecutor s case with a successful motion, or you can entirely keep a piece of evidence from being presented at trial. Putting the other side at a disadvantage before you even begin the trial goes a long way towards getting a successful outcome. After motions, you need to seat a jury. This is one of the reasons going to trial is so risky, you are placing your fate in the hands of strangers. Jury selection is important because it helps to weed out people who may be biased against you. I have had jurors kicked off a panel because they were racist, or they already had their minds made up, or they weren t taking to process seriously. An experienced attorney can accomplish a lot in jury selection, but we are not mind readers. I have spoken to jurors after trials and learned information that they were clearly holding back. I have encountered racism, bias against homosexuals, bias against people with mental problems, and bias against people charged with a crime. Speaking with jurors has only reinforced my opinion that placing your fate in the hands of strangers can be a very risky thing to do. Because juries are made up of people, juries do not always get it right, contrary to popular opinion. An experienced trial attorney will do a lot more than search for any bias against you in jury selection, we will also do everything we can to inject our theme and theory early on, to get everyone speaking our language, and to start telling our story as soon as we can. That is hard to
5 do in jury selection, but in some cases we get away with it, and I will tell you I have absolutely won cases in jury selection, it is incredibly important. Once a jury is selected, it is time for opening statements. I know a lot of attorneys who believe opening statements are a waste of time, but I could not disagree more. The reason opening statements are so unpopular is because so many of them are boring. You are not allowed to argue in an opening statement, but there is no rule against being persuasive. The standard opening statement talks about the witnesses who will testify and the evidence the jury will hear. A lot of times they are dry and emotionless. An effective opening statement tells a compelling story. Storytelling is incredibly effective and it is important to win over jurors from that very first impression. Anyone who doubts the importance of storytelling should take a look at how much money is made by Hollywood telling us stories. You can tell a story without arguing that will hook a jury in using persuasive storytelling techniques that frankly are not taught in law school. I can say without a doubt that I have won trials with my opening statement, because jurors have told me so. After the opening statement, we present evidence. The State goes first because they have the burden of proof. They call witnesses into the courtroom to present evidence. Witnesses testify and introduce physical evidence. After the government is through with each witness, the defense attorney has a chance to cross examine each witness. After the cross examination, the government has a chance to rebut any facts that came out on cross examination. After the government is through with all of their witnesses, the defense has the opportunity to present a case. The defense has no burden whatsoever, and sometimes there are no defense witnesses. You have the decision about whether you want to testify or remain silent. If you testify, you will be treated like any other witness. If you remain silent, the jury will be instructed not to hold the fact that you did not testify against you. Remaining silent is your Constitutional Right, and no one is allowed to point out that you did not testify or argue that it shows you are guilty. If the defense presents evidence, the government is allowed to present additional witnesses to rebut anything the defense said. When all the evidence is in, we move to closing argument. This is the part of the trial where the attorneys are finally allowed to argue, and it is where most attorneys focus most of their attention. This is our last opportunity to make an impact before the jury decides your fate. Novice attorneys prepare incredibly long arguments because they believe the jury is hanging on every word they say. Since the advent of television, we have been conditioned as a culture to have an attention span of six to seven minutes before a commercial break. After seven minutes, our minds start to wander. After twenty five minutes, few of us have the ability to hang on every word. An effective closing argument is focused on the key points, not spraying every point possible like a shotgun. Your attorney should be building those key points throughout the trial, which is why it is so important to know and understand your attorney s strategy beforehand, so you agree in the direction your case is going. Waiting on a jury deliberation is one of the hardest things you will ever do. Waiting patiently while strangers are deciding your fate is one of the most stressful experiences you will ever have. Ideally, at the end of the trial you will get to hear the two best words in the English language, not guilty. If you do, you get to go home and live your life. If not, your case will proceed to sentencing. In California, if you are convicted of a crime, you will be sentenced by a Judge soon after the trial. If you are convicted of a misdemeanor the Judge will sentence you within five days. If you are convicted of a felony, then you must be sentenced within twenty days. The reason for the delay is to allow the
6 Department of Probation a chance to make a recommendation based upon the crime committed, your history, your mental health, your educational background, and your ability to be rehabilitated. The rules of evidence are much more loosely applied at a sentencing hearing, which is a double edged sword. It allows the government a lot of leeway in presenting evidence to support a tough sentence, but it also allows your attorney the opportunity to present mitigating evidence. You should always approach every trial preparing for the worst but hoping for the best. This means you should be developing mitigating evidence from the very beginning so you are prepared and not frantically trying to get ready for a sentencing hearing. Throughout the process, something I believe that always gets lost is the impact of your behavior during the process. If you are patient, polite and respectful throughout the process, that can only have a positive impact on the prosecutor as he or she is deciding what plea offer to make, or what sentence recommendation to make. The Judge will notice your behavior compared to those around you who will be visibly annoyed in court and disrespectful. Every time you speak to the Judge, stand up and address him or her as your honor. Doing this little things can sometimes have a huge impact. There is always hope Regardless of what you are facing, I firmly believe there is always hope. I have represented a lot of people who have done frankly horrific things, but I have never met someone I was ready to give up on. Regardless of the outcome, there is a path forward in life for everyone. You can always find your way to contribute to society and the people around you and to live a full and rewarding life. If you are feeling hopeless in the process, talk to your attorney about it so you do not have to face the court system alone. Regardless of who you are, what you are accused of, or who you choose to represent you, I wish you the best of luck and hope you are able to hear the two best words in the English language, not guilty.