[by Scott Ciment, Esq]
Take a breath and read on. You’re going to have to make some decisions, and you need to think carefully about how to handle this terrible situation. As an attorney, I recommend that you learn as much as you can about the criminal court process, so when you appear in
court, you can help your lawyer fight for you.
First things first: Have you been charged with a crime? Following your arrest, the police can only hold you for 48 hours without charging you (though if the 48th hour falls on a weekend or a holiday, they get to hold you to the next court day). I have represented many people who got arrested, even for serious felonies, and then were released on their own recognizance because the police did not get the file to the District Attorney in time.
If the police release you without charging you with a crime, you will likely receive a letter in the mail within a few weeks telling you you’ve been charged and must appear on a certain date at a certain courthouse. That’s the date for your arraignment, and it makes sense to hire an attorney to represent you at that stage. The court will not give you a copy of the police report or other information if you show up without an attorney. However, your lawyer will get a copy and, after removing certain information as required by law (such as witness addresses and phone numbers), can make a copy for you.
At the arraignment, your attorney enters a not guilty plea or, in some cases for strategic purposes, asks for a continuance to enter the not guilty plea later. The court then normally
sets a “pre-trial” or “pre-preliminary hearing” date for the attorney and the prosecutor to discuss evidence issues, or settlement, or to schedule your preliminary hearing. In my
experience, the time between the arraignment and the preliminary hearing is crucial to the defense of a crime because oftentimes, the prosecutors aren’t actively working on the case. In fact, each time you come to court, you are likely to see a different prosecutor speaking on behalf of “the People” against you.
Now is the time to build your defense. A private investigator can talk to witnesses who gave statements to the police, or even find witnesses no one knows about yet. Photographs can be taken of the “crime scene”, to determine whether they contradict what witnesses claim they saw. Subpoenas can be made to obtain records that might provide an alibi, or an explanation for conduct that otherwise seems criminal. All these things can help set up a defense at the preliminary hearing or, more likely, for the trial that will follow.
The Preliminary Hearing
The purpose of a preliminary hearing is to ensure that unsubstantiated complaints and weak cases get weeded out before trial. Unfortunately, that doesn’t happen very often. The
laws protecting defendants at preliminary hearings have been eroded by judicial decisions, legislation and ballot propositions. In the past, witnesses of a purported crime would have to testify about what they saw; now, police officers can testify about what the witnesses told them they saw.
Yes, it is hearsay; and yes, it is allowed at preliminary hearings.
In order for a judge to rule against you at a preliminary hearing (which means that you are “held to answer” for trial) they merely need to find that some evidence exists that tends to
show that a crime was committed and that you are the one who committed it. This is a very, very low standard of proof. Compare that to the standard of proof at trial, where the prosecution must show that you are guilty beyond a reasonable doubt. Your expectations for winning outright at a preliminary hearing must be lowered.
Instead, success at the preliminary hearing is often measured by how well it sets up your defense at trial. At the preliminary hearing, even though eyewitnesses do not normally testify, their accounts of the incident are put on the record by the cop who heard them.
That at least can lock down the story and help you prepare to show that they are mistaken or lying. A skillful lawyer knows how to balance the two objectives of having some counts dismissed, and locking witnesses into their version of the events so they can’t wiggle out of them later.
After the preliminary hearing, get ready for trial. If your case survives to this point without a settlement, then the chances of a trial are pretty good. Don’t hesitate to call your
lawyer to discuss how he or she intends to defend you. Lots of decisions are about to be made by you and your attorney, and clear communication is essential. Are you going to testify? Are character witnesses going to be called? Is there anything in your past that might be used to impugn your character that needs to be addressed? These are just a few of the questions that need to be answered as you prepare for trial.
Your liberty is at stake. No matter whether you are innocent or guilty, you have to mount a strong defense to the charges. In the back of most jurors’ minds, no matter how many
times a jury is told that the burden of proof is on the prosecution to prove your guilt, is, “He wouldn’t be here if he didn’t do something wrong.” A good lawyer, a sound strategy and smart decisions are what you need to overcome and win your case.
(c) 2005-2011 Scott Ciment
Scott Ciment, Esq. is a criminal defense lawyer and a partner at Black & Ciment, LLP in Newport Beach, California. He can be reached at (949) 757-0999.
The specific information in Mr. Ciment’s article applies to California law, but will be similar or identical in other states.
This article is for informational purposes only and may not be accurate or apply in every situation. Please consult with an experienced criminal attorney regarding your case.