Category: Court Process

Court Process | NoCuffs

Certificates of Rehabilitation and Pardon

Many people convicted of felonies in California fear that their criminal records will follow them all of their lives, creating hurdles to employment, housing, education, and other opportunities. However, there are several post-conviction relief options that may be available, including a certificate of rehabilitation and pardon. The experienced post-conviction relief lawyers of The Kavinoky Law Firm will evaluate each case to determine whether a California certificate of rehabilitation and pardon may be obtainable.

Certificates of rehabilitation are first sought from the trial court and are the first step in the pardon process. If a certificate is issued, the trial court will recommend that the governor grant a pardon. The governor has the discretion to grant or deny a pardon, unless the individual has multiple felony convictions. In that case, the pardon will require additional approval from the state Supreme Court.

Certificates of rehabilitation are what they sound like— a formal finding that a person is rehabilitated and should be relieved of the burdens of a prior felony conviction. The process of obtaining a certificate of rehabilitation and/or pardon is lengthy and must be done with the assistance of an experienced criminal defense attorney.

Prior convictions can have impact many aspects of life. Most post-conviction relief is limited and provides only partial relief to cleansing a criminal record. Expungement for example, has several key limitations and will neither restore gun possession rights nor alleviate registration as a sex offender under Penal Code 290. Only a pardon can address these consequences.

A governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following a conviction. California Penal Code section 4852.05 states, “During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.”

In general, pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least 10 years and has not engaged in further criminal activity. While the receipt of a certificate of rehabilitation is persuasive in evaluating a pardon application, it is but one of many factors in the governor’s decision to grant the pardon. The 10-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

A certificate of rehabilitation and pardon can truly transform the life of an individual convicted of a felony in California. To learn more about California certificates of rehabilitation and pardons and other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.

Plea negotiations

Plea negotiations or plea bargains describe the phase where most California cases involving marijuana are resolved. Plea negotiations typically begin as early as the arraignment phase of the criminal court process and can last up until (and, in some cases, even during) one’s trial. In order to obtain the most favorable plea bargain possible, it is vital that the accused hires a California criminal defense lawyer who specializes in marijuana cases and who knows how to critically analyze the flaws in the prosecution’s case.

Plea negotiations help create a path by which both parties can reach a compromise with respect to the charges. While engaging in plea negotiations, both sides generally consider the seriousness of the charged offense, the strengths and weaknesses in the case and the most likely verdict in the event that the case goes to trial. In a typical plea bargain, the accused agrees to plead guilty or “no contest” to at least one charge (usually a lesser or reduced charge than the one he or she was originally charged with) in exchange for a lighter sentence than he or she would receive if convicted by a judge or jury following a trial. For example, a possession for sale charge may be plea bargained down to a simple possession charge, enabling the accused to participate in a drug treatment program instead of being sentenced to jail or prison. Although this is the most common scenario, there are a wide variety of others that parties agree to when participating in plea negotiations, including, but not limited to, a dismissal of some or all of the remaining charges, having a felony reduced to a misdemeanor and providing information about another crime, such as the name of one who manufactures marijuana or the location where another is cultivating marijuana. Because of the overwhelming number of cases that pass through the criminal court system and due to the overcrowding that takes place in jails, the courts generally encourage these types of deals.

Prosecutors don’t have the authority to “force” a judge to accept a plea bargain, although judges typically don’t interfere with deals to which both parties have agreed. Once the prosecutor has recommended the bargain to the judge, the judge’s primary concern will be making sure that the bargain was legally entered into. In order for a plea negotiation to be legally binding, three elements must be satisfied: that the defendant knowingly waived his or her right to a trial, that he or she did so voluntarily and that there is a factual basis to support the charges to which the accused will be pleading guilty or no contest. Assuming that these components have been met, the judge will likely “accept” the plea bargain and take the defendant’s plea “on the record” and in open court.

Plea negotiations are truly an art, where only the savvy will prevail. In order to successfully negotiate a California marijuana-related offense, the defense attorney must be familiar with every element of the charged offense, have a thorough understanding of the actual and potential evidence that may come into play, knowledge of all “lesser included” and related offenses and know how sentencing guidelines regulate those offenses. The outstanding criminal attorneys at The Kavinoky Law Firm have mastered these areas and, as a result, have an excellent success record when it comes to negotiating their clients’ cases. They keep current with all of the issues that are relevant to California laws regarding marijuana so that they are always able to recognize the weaknesses in the government’s case. For the most trusted legal advice and to be represented by an unsurpassed advocate, contact The Kavinoky Law Firm today for a free consultation.

Certificates of Rehabilitation and Pardon In California

Many people convicted of felonies in California fear that their criminal records will follow them all of their lives, creating hurdles to employment, housing, education, and other opportunities. However, there are several post-conviction relief options that may be available, including a certificate of rehabilitation and pardon. The experienced post-conviction relief lawyers of The Kavinoky Law Firm will evaluate each case to determine whether a California certificate of rehabilitation and pardon may be obtainable.

Certificates of rehabilitation are first sought from the trial court and are the first step in the pardon process. If a certificate is issued, the trial court will recommend that the governor grant a pardon. The governor has the discretion to grant or deny a pardon, unless the individual has multiple felony convictions. In that case, the pardon will require additional approval from the state Supreme Court.

Certificates of rehabilitation are what they sound like— a formal finding that a person is rehabilitated and should be relieved of the burdens of a prior felony conviction. The process of obtaining a certificate of rehabilitation and/or pardon is lengthy and must be done with the assistance of an experienced criminal defense attorney.

Prior convictions can have impact many aspects of life. Most post-conviction relief is limited and provides only partial relief to cleansing a criminal record. Expungement for example, has several key limitations and will neither restore gun possession rights nor alleviate registration as a sex offender under Penal Code 290. Only a pardon can address these consequences.

A governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following a conviction. California Penal Code section 4852.05 states, “During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.”

In general, pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least 10 years and has not engaged in further criminal activity. While the receipt of a certificate of rehabilitation is persuasive in evaluating a pardon application, it is but one of many factors in the governor’s decision to grant the pardon. The 10-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

A certificate of rehabilitation and pardon can truly transform the life of an individual convicted of a felony in California. To learn more about California certificates of rehabilitation and pardons and other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.

A Pitchess motion

A Pitchess motion is a type of pre-trial motion that may be raised by a defendant who suspects that the arresting officer has engaged in previous misconduct which may be relevant to his or her defense. This motion seeks personal information contained in the officer’s personnel file, including any complaints about racial bias, false arrest, the planting of evidence or any other criminal conduct. Because the rules that regulate when and how this information may be disclosed are technical and complex, it is critical that an individual accused of a marijuana-related offense in this state hires an experienced criminal defense lawyer who understands how to effectively write and argue a Pitchess motion.

Pitchess motions are designed to allow an individual who believes that an officer involved in his or her arrest or subsequent criminal investigation engaged in any type of misconduct the opportunity to investigate that claim and use any discovered, relevant information to aid in his or her defense. However, this information is not freely available, as the legislature and courts both agree that officers have a compelling interest in maintaining the privacy of their personal information as well. As a result, a judge hearing a Pitchess motion must decide which party has a more compelling claim based on the facts before him or her.

Pitchess hearings basically involve two steps – the defense establishing “good cause” for the requested information and the judge reviewing the officer’s records if that burden is met. Every Pitchess request will not result in a review of an officer’s file. The defense must first present specific facts that support their position. This burden is relatively low, as the defense must only show that the alleged misconduct “could have” taken place, not that it necessarily did. The purpose for this step is to determine exactly what type of records are being sought. One of the issues that a judge will consider when reviewing a Pitchess motion is scope. A defendant seeking access to everything in an officer’s package will not likely move a judge. An officer’s personnel packet contains all records that are maintained by the employing law enforcement agency, including Human Resources records, psychological and medical information, citizen complaints and internal affairs investigations. If a defendant specifically alleges that the officer planted evidence (either in the form of marijuana or paraphernalia, for example), a motion seeking evidence of similar complaints would more likely produce the desired information than a motion seeking everything in the file. Even if everything were requested and, assuming the defense’s burden was met, the judge would determine which information would be relevant to the complaint and would only provide the information that he or she deemed relevant. Citizen complaints that the officer used excessive force, for example, would typically be ruled irrelevant and therefore not be disclosed.

The second step in the process assumes that the first step was successful and involves the judge’s review of the officer’s file to determine if there is any information that is relevant to the defendant’s complaint and, if so, whether it is legally permissible to disclose it.

Because the rules that regulate Pitchess motions and hearings are so specific, prevailing in one requires the skill and experience of a seasoned criminal attorney. The unsurpassed lawyers at The Kavinoky Law Firm understand how to effectively raise and argue a Pitchess motion so that the requested information will likely be revealed. They have mastered all of the laws that relate to California marijuana defense, which include all of the different issues and motions that may be raised prior to and up through their client’s trial. For more information from an exceptional firm, contact them today for a free consultation.

Sentencing

Sentencing refers to the punishment that a judge imposes upon a defendant who has either plead guilty to a charge or who was convicted following a judge or jury trial. For California cases that involve marijuana-related charges, sentences may include probation, jail or prison time, fines, electronic monitoring (also known as house arrest) and a variety of diversionary drug treatment programs. In order to have obtain the least restrictive sentence, it is critical that an individual accused of a marijuana-related offense in this state hires an experienced California criminal defense lawyer who specializes in this area of the law and who therefore knows all of the different sentencing options available for each type of offense and the most compelling arguments to persuade a judge to impose those requested.

Penalties for the most commonly prosecuted marijuana-related offenses are listed under the “penalties” section of the main outline and may typically be found within each offense’s primary article as well. This article serves to briefly describe the alternative sentences that are only applicable to certain offenses, including a Proposition 36 sentence, diversion, drug court, sober living, drug rehabilitation and the electronic monitoring program.

Proposition 36, also known as The Substance Abuse and Crime Prevention Act, is a law that permits many first and second time marijuana offenders to participate in drug treatment as an alternative to serving time in jail or prison. Up to one year of treatment may be ordered, followed by an additional six months of follow-up care. It should be noted that this type of sentencing is available for a simple possession of marijuana charge and is not applicable to crimes involving the sale, production or manufacturing of the drug.

Diversion is a bit different, in that it requires an individual to enter a guilty plea before he or she may receive this alternative sentencing option. It is another form of drug treatment – a series of drug education classes – which the defendant must successfully complete in order to eventually withdraw the plea and have the charges against him or her dismissed.

Drug courts exclusively handle cases involving those who have drug problems. Individuals charged with eligible marijuana-related offenses who participate in drug court will receive extensive supervision and treatment that will lessen as one successfully moves through the program. If completed, one’s charges may ultimately be dismissed.

Sober living is another alternative sentencing option that allows an individual to receive credit towards his or her jail and/or fine. Those who reside in a sober living environment are permitted to work and otherwise leave the residence during the day, returning at night to participate in treatment and classes.

Rehabilitation services may be offered to those who are charged with certain marijuana-related crimes. Drug rehab requires an individual to live in an authorized center, which may even be covered by one’s health insurance.

Electronic monitoring (also known as “house arrest”) allows an individual to avoid jail or prison by being restricted in one’s own home. Certain non-violent drug offenders may be given this option, whereby they will be fitted with an ankle-bracelet that electronically keeps track of their whereabouts. Depending on the circumstances, an individual may be permitted to work, do laundry, shop for groceries, do other personal errands and attend court and other court-ordered programs, if pre-approved by the probation department.

There are many eligibility requirements, advantages and disadvantages that are associated with each of these alternative sentencing options, which is why it is imperative that an individual charged with a marijuana offense immediately contacts a skilled California criminal attorney who can explain the differences between these programs. The outstanding attorneys at The Kavinoky Law Firm are well versed when it comes to alternative sentencing for their clients charged with marijuana offenses. They know the arguments that are the most effective at convincing judges and prosecutors to allow their clients to participate in these alternative sentencing options and are dedicated to favorably resolving all cases. To learn more about alternative sentencing, contact these exceptional lawyers today for a free consultation.

Marijuana penalties

California Marijuana Laws – penalties

The penalties facing an individual accused of an illegal marijuana-related activity in California vary, depending on a variety of circumstances that only a skilled California drug crime defense attorney will be prepared to successfully defend against.

The unauthorized possession of marijuana for personal use will typically be filed as a misdemeanor. Possessing “concentrated cannabis” could result in a misdemeanor, punishable by up to one year in jail and a maximum $500 fine or in a felony, punishable by imprisonment in the state prison. Possessing more than one ounce of marijuana (other than concentrated cannabis) is a misdemeanor, punishable by up to six months in jail and the same maximum fine. An individual possessing not more than one ounce of marijuana faces a misdemeanor, punishable by a maximum $100 fine. However, if an individual possessed not more than one ounce upon school grounds, he or she faces a misdemeanor, punishable by up to 10 days in jail and a maximum $500 fine. A savvy criminal attorney knows to request a drug treatment program as an alternative sentencing option to jail or prison.

Cultivating and possessing marijuana for sale are both felony offenses, punishable by 16 months or two or three years in the state prison. In addition to this prison sentence, a possession for sale charge also carries a maximum $20,000 fine. An individual accused of either of these offenses will generally be ineligible for drug diversion unless his or her criminal defense lawyer can convince the court to reduce the charge to one of simple possession.

Transporting, importing, selling, furnishing, administering or giving away marijuana (or simply offering to do any of these activities) is a felony, punishable by two, three or four years in prison and a fine of up to $20,000.

Participating in any marijuana-related activities with a minor subjects the accused to a felony, punishable by three to nine years in the state prison (for a first offense) and could result in a lifetime sentence for an individual who has been convicted three or more times of such an offense. A maximum $20,000 fine also faces the accused, even if the offense is only his or her first.

California considers manufacturing marijuana one of the most serious felonies and punishes an individual convicted of this offense with three, five or seven years in prison. It even punishes an individual who only offered to manufacture the drug with three, four or five years in prison. In addition, an individual who is convicted of this offense (who has prior felony violations for a variety of drug-related offenses) faces a full, separate and consecutive three-year prison term for each prior violation, even if the prior conviction didn’t result in a prison sentence.

Anyone convicted of selling or furnishing a substance falsely represented to be marijuana, possessing marijuana, transporting marijuana, involving a minor in a marijuana-related offense or of operating or maintaining a place where unlawful activities relating to marijuana take place will be ineligible to receive a probationary or suspended sentence if he or she has been previously convicted of most other drug offenses.

Anyone convicted of a marijuana-related offense will additionally be charged fees that range from $50 to $150 for laboratory analysis and drug programs. It should be noted that these fees will be assessed per offense. In addition, anyone who receives probation for one of these offenses will also be required to complete a drug education or treatment program, and failure to do so will result in an aggravated sentence upon a subsequent drug conviction. Depending on the circumstances of the alleged offense, a judge also has the discretion to order the accused to participate in additional counseling or education programs, such as parenting or anger management.

California Marijuana and Drug Defense Lawyer

The key to avoiding these harsh penalties lies in hiring an experienced attorney. The outstanding lawyers at The Kavinoky Law Firm specialize in California drug crime defense and excel in obtaining favorable deals for their clients. To learn more, contact them today for a free consultation and for unsurpassed representation.

Preliminary hearings

Preliminary hearings

Preliminary hearings are one part of the criminal court process that individuals accused of felony marijuana-related charges, in California, will face. The preliminary hearing is one of the most critical phases in all of the proceedings, as charges can be dismissed by the judge at this stage if he or she doesn’t believe that there is enough evidence to prove the defendant’s guilt in a trial. As a result, it is vital that an individual accused of a felony charge involving marijuana in this state contacts an experienced California criminal defense lawyer who specializes in this area of the law and who therefore knows the most compelling arguments to present during a preliminary hearing.

Preliminary hearings are usually held following a defendant’s arraignment if a subsequent plea bargain did not resolve the case. Considered a mini-trial, it is a chance for the defense to see what type of evidence the prosecutor will ultimately use during the trial (assuming that the case goes that far) and a chance to have the charges dismissed entirely if that evidence isn’t deemed sufficient by the judge. “Probable cause” is the standard that the judge uses to make that decision, which basically means that the judge considers whether the prosecutor has presented enough evidence to convince a reasonable jury that the accused is guilty of the charged offense. Those charged with misdemeanor offenses in this state will not participate in this phase of the proceedings.

Preliminary hearings are typically conducted like a one-sided trial. Both sides may “argue” their point-of-view, but it is the prosecutor who puts on his or her case. He or she will usually call witnesses to testify and may introduce physical evidence (if there is any) to further convince the judge that the case should go to trial. Depending on what has been presented, the defense attorney may cross-examine the prosecution’s witnesses, challenge any other evidence that the prosecution offers or may simply try to convince the judge that the government’s case isn’t strong enough to meet the probable cause standard and that, as a result, the charges against his or her client must be dismissed.

Evidence in a marijuana-related preliminary hearing may include, but is by no means limited to, testimony from the arresting officer, from the officer who seized any marijuana or related paraphernalia, from a witness who observed (for example) a marijuana sale or land where the drug was being cultivated, or from a party to a transaction involving marijuana who may have been granted immunity in exchange for his or her testimony against the accused. Physical evidence may include, but again, is not limited to, paraphernalia, photos of the drug in its confiscated form, photos depicting the scene of a manufacturing facility or chemical test results if the charge was for driving under the influence of marijuana.

The exceptional California criminal attorneys at The Kavinoky Law Firm have mastered the art of critically analyzing a police report to recognize the flaws that can be used against the prosecution during a preliminary hearing. Their skilled advocates know what types of arguments are most likely to convince a judge that the evidence presented by the government fails to meet the required burden of proof and, more importantly, know how to convey those arguments in an articulate and persuasive manner. For the most trusted legal advice and for unsurpassed representation during every phase of one’s criminal proceedings, contact The Kavinoky Law Firm today for a free consultation.

California Immigration Consequences Of Criminal Cases

A California criminal conviction is a serious matter for anyone, but can be especially devastating for legal or undocumented immigrants. You can be deported or have your visa or green card revoked if you are convicted of a crime. Because the consequences of a California criminal conviction are especially severe for immigrants, it’s critical to have a top defense lawyer on your side ensuring that your rights are protected. The skilled California defense lawyers of The Kavinoky California Immigration Lawyers have the advanced knowledge needed to protect your rights and your freedom if you’re facing any type of criminal charge.

The best way to avoid any type of immigration action as a result of a California criminal charge is to prevent a criminal conviction in the first place. The top California defense lawyers of The Kavinoky Law Firm can thoroughly analyze your criminal case to determine the most promising defense strategy, and take aggressive action to strengthen your defense.

Not every criminal conviction will result in deportation or revocation of a visa or green card, so if you’re facing immigration issues, it’s critical for your California defense lawyer to thoroughly research the charges you face and your options to determine the best course of action.
In some cases, a skillfully negotiated plea bargain is the best option in a California criminal case where immigration issues exist. If the case as charged would result in deportation if you’re convicted, it may be possible for your California defense lawyer to negotiate a plea bargain that allows you to plead guilty to a lesser charge that doesn’t carry immigration consequences.

If you have already pleaded guilty to a California criminal charge and learned that it will lead to your deportation, it may be possible to withdraw your guilty plea based on the argument that you did not understand the consequences of your guilty plea. If you are allowed to withdraw your guilty plea, your California criminal case will start over again, and you’ll have to defend yourself against the charges you face.

Since 9/11, immigration policy in the United States has become progressively harsher. More crimes are falling into the category of deportable offenses, and deportation hearings are taking place regularly. Given the current national security climate, it is crucial to hire an attorney who can stand up for you and illustrate that you are not the person or the type of person that should suffer deportation. It takes experience and specialized knowledge to deal with immigration consequences of criminal convictions.

The consequences of a criminal conviction can be extremely harsh for immigrants, but the top California Immigration Lawyers of The Kavinoky Law Firm can help. Our experienced defense attorneys are ready to thoroughly analyze your case to determine the best course of action and fight for your rights. Contact a knowledgeable California defense attorney today at 1-800-NO-CUFFS for a free consultation.

Motion to Suppress Evidence

Motion to Suppress Evidence

A motion to suppress evidence is based upon the idea that evidence has been illegally obtained as the product of a search or seizure that violates the Constitution. The court decides this issue after a hearing in which the defense attorney cross-examines the officers involved in the case, and presents legal argument about why the evidence should be suppressed. If this motion is successful, the case may be dismissed entirely.

There are different laws that govern whether or not a search is illegal, depending upon what is searched and who does the searching. For example, the law recognizes a greater expectation of privacy in a person’s house, than they do in a person’s car. This is because cars are more exposed to the public because of their many windows, and because of their mobility. An experienced California DUI criminal defense attorney will be able to spot these issues, analyze them properly, and make a forceful argument on your behalf in court.

A criminal defense lawyer can make a Motion to Suppress and return property or any tangible or intangible thing obtained as a result of an unlawful search or seizure. A suppression motion does not keep out statements obtained in violation of the Constitution, nor litigate the legality of identification procedures and police lineups, for these do not specifically relate to the search or seizure. However, physical evidence seized as the result of a statement obtained in violation of the Fifth Amendment may be suppressed through a suppression motion.

Evidence that has been previously suppressed cannot be used to revoke probation. If the prosecutor is able to proceed to trial notwithstanding the fact that evidence has been suppressed, the illegally-seized evidence can be sued to impeach the defendant if he or she testifies. Illegally-seized evidence which has been suppressed should certainly not be introduced against the defendant at a sentencing hearing.

Because the Motion to Suppress Evidence is so powerful, and can result in the entire case being dismissed, it is important that every criminal case be scrutinized by a criminal defense lawyer who is well-versed in search and seizure law. An experienced criminal defense attorney will be able to determine whether a Motion to Suppress Evidence is a worthwhile undertaking.

It is possible for the government to seize the fruits of the drug trade in what is called a forfeiture action. This can include cars, homes, cash, and any other asset. A skilled criminal defense attorney can work to protect assets from forfeiture.

If you or someone you care about has been charged with a crime, it may be possible to suppress the evidence to be used against them. By so doing, the prosecution may be unable to proceed, and the charges dismissed. Please contact our law firm for a free consultation to determine whether a suppression motion may help in your case. The Kavinoky Law Firm is dedicated to criminal defense. One hundred percent of our practice is criminal defense work. It would be our pleasure to consult with you regarding your case at no cost or obligation.

Criminal Process

Criminal Process

A criminal defense lawyer who practices in California must be keenly aware of the process by which a case goes from arrest to conclusion. All criminal defense attorneys are not created equal. Some lawyers dabble in criminal defense, and these lawyers will attempt to handle virtually any case that comes through the door. The Kavinoky Law Firm is dedicated to the defense of criminal cases. That is all we do. If you have been accused of a crime and need a criminal defense lawyer whose concentration is not diverted into other areas, we invite you to contact us for a free consultation.

The process by which a criminal case will proceed to conclusion will depend upon whether it is a misdemeanor or a felony. The difference between a misdemeanor and a felony is that a misdemeanor can be punished by up to one year in county jail, or maximum fine of $1000, or both. The punishment available in a felony case may be probation with county jail time; however, in a felony case, punishment may include term in state prison or years or decades, or even the death penalty in certain types of murder cases. It is the range of punishment available which determines whether a case is considered a felony or a misdemeanor.

Misdemeanor criminal cases begin when a criminal complaint is filed. The prosecutor, whether a city attorney or a district attorney, will file a complaint upon their review of various police reports that are written by the arresting agency. The first court appearance is the arraignment, and this is where the accused is formally put on notice of the charges against him or her, and provided with copies of the various reports which purportedly support the charges.

Following the arraignment, there is what is loosely referred to as the pre-trial phase. During this phase, the criminal defense attorney should be filing a variety of motions to aggressively defend his or her client. These motions may include Discovery Motions, where additional reports or evidence is sought from the prosecutor or members of the prosecution team, including law enforcement. Other types of motions include Motions to Suppress Evidence, where evidence has been illegally seized or is the fruit of an illegal search. It is also common to file a Pitchess Motion, where the criminal defense lawyer is seeking the contents of the arresting officer’s private personnel records to determine whether others have made complaints for dishonesty, excessive force, or bias.

At the end of the pre-trial phase, the case will either be dismissed, settled pursuant to a plea bargain, or set for trial.

Trial in a misdemeanor case is no different than any other criminal trial. It begins with jury selection, and proceeds to opening statements, examination and cross-examination of the prosecution’s witnesses, presentation of the defense case (if any), closing arguments, and jury deliberation. In order to be convicted of a misdemeanor, all twelve jurors must agree that the accused is guilty beyond a reasonable doubt. If even one juror votes that he or she has a reasonable doubt in the integrity of the prosecution’s case, a “hung jury” will result. A “hung jury” results in a mistrial, and the possible dismissal of criminal charges.

Felony cases proceed a little differently. In a felony criminal case, a complaint is filed and the defendant is arraigned, just as in a misdemeanor case. However, following the arraignment, the accused in a felony case is entitled to a Preliminary Hearing. A Preliminary Hearing is a “mini-trial” which is held in front of a judge, not a jury. The judge in the Preliminary Hearing determines whether there is enough evidence to allow the case to proceed to trial. The Preliminary Hearing is a safety net to ensure that those accused do not languish in custody awaiting trial on cases with insufficient evidence to support that. It is a critically important aspect of the case for both the defendant and the criminal defense attorney, as it provides an opportunity for cross-examination of witnesses prior to trial that is not afforded in misdemeanor cases.

Following the Preliminary Hearing, if the defendant is held to answer for trial, a series of pre-trial conferences and motions are scheduled, and then the case will proceed to trial if not settled. Just as described above with respect to a misdemeanor trial, in a felony trial the prosecutor has the burden to prove his or her case beyond a reasonable doubt, to the exclusion of every reasonable doubt, or else the defendant is entitled to a judgment of not guilty.

If you, or someone you care about, has been charged with a crime, it is vitally important that you consult with a criminal defense lawyer who is aware of the criminal process, and who can zealously represent your interest. Darren Kavinoky is a criminal defense lawyer whose practice is entirely devoted to criminal defense cases. Please feel free to contact The Kavinoky Law Firm for a free consultation at no obligation to you.