What exactly is a crime?
A "crime" is defined as any act or omission (of an act) in violation of a public law forbidding or commanding it. Crimes include both felonies (more serious offenses -- like murder or rape) and misdemeanors, which cannot be punished by a term of jail over one year (like most drunk driving cases unless an injury is involved or many prior convictions are involved where a felony might be charged, other misdemeanors include shoplifting, prostitution, or vandalism).
Historically, most crimes have been established by individual state law, with that law varying significantly state to state. In California , the California Penal Code serves as a good starting place for those seeking to gain an understanding of the basic structure of criminal liability.
All statutes describing criminal behavior can be broken down into its various elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or "actus reus " and a mental state, or "mens rea." Prosecutors have to prove each and every element of the crime beyond a reasonable to a unanimous jury of 12 people to gain a conviction.
What is bail and how is it set?
The amount of bail - money or other security deposited with the court to insure that you or your attorney will appear at court appearances - is set by a schedule in each county. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation. However, if you have any doubt and have not contacted an attorney, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not apply to misdemeanors or felonies. Forfeiting bail does not mean that the charges are dropped and usually works as a conviction only for a traffic offense.
Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior failures to appear (even for traffic tickets), any previous record, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. Unlike the assumption of innocence the law presumes you are guilty of the charges for purposes of setting bail or release.
Instead of paying bail, you might, at the judge's discretion, be released on your own recognizance or "O.R." (or supervised O.R.). This means that you do not have to pay bail because the judge believes that you will show up for court appearances without the need for bail. Bail bond's men (and women) usually charge 10% of the total bail for their fee which is nonrefundable (i.e. $10,000.00 bail = $1,000.00 fee).
What should I do if I'm charged with a crime?
If you are charged with or arrested for a crime, you are entitled to certain constitutional rights. You have the right to remain silent, the right to know anything you say can be used against you in court, the right to stop answering questions at any time and the right to an attorney. These rights are commonly referred to as your "Miranda" rights. Your right to an attorney includes all stages of the criminal proceedings and begins at the point you become the "focus" of a police investigation. If you cannot afford an attorney, the court will appoint one without charge, subject to a determination of legal fees at the conclusion of your case if the facts warrant. If you are arrested, you have the right to know the charges against you, the identity of the police officers and witnesses and to make one phone call. This call should be to an attorney, your family or a trusted friend. If you are booked at the police station, you should cooperate only by giving basic factual information (name, address etc) NOT discussing the facts of what happened or "your side of the story".
Before you answer any questions, it is best to talk with your attorney. What you tell your attorney is confidential and can never be told to anyone or used against you in any way. Further, the fact that you decline police questions cannot be used against you in a criminal proceeding. Unless you are charged with a crime punishable by life imprisonment, you have the right to some amount of bail or bond through the court proceedings, although the amount might be quite high and even posting 10% may be unaffordable.
Once I am told my Miranda rights, can I be questioned?
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to voluntarily talk, your answers can be used against you if you testify to something different.
As noted previously, you may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver's license will be suspended and the refusal will be used against you in court to increase your penalties.
Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have a right to make and complete a telephone call that is free within the local dialing area. Call or arrange for an attorney as soon as possible.
What is the difference between being arrested and detained?
If you are arrested, you can be taken into custody, which means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for brief questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. A storekeeper can also detain you if he/she suspects you have stolen something until the police arrive.
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. If a DUI or drug arrest is involved you may need to provide a chemical test or face additional penalties.
Are police the only people who can arrest me?
All law enforcement officers - such as police officers, county sheriff officers, investigators in a district attorney's or an attorney general's offices and highway patrol officers - can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.
They can arrest you - even if they do not have an arrest warrant - if they have probable cause or good reason to believe you committed a felony, such as armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit a misdemeanor or an infraction, instead of taking you into custody, they may ask to sign a citation or notice to appear. Infractions are public offenses even more minor than a misdemeanor, such as a traffic violation (speeding), where the punishment usually is only a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification to show the officer or refuse to sign the citation, however, the officer may take you into custody.
Any person, such as a private security guard or even a citizen, can make a "citizen's arrest" if they see a misdemeanor being attempted or committed. (A misdemeanor is a criminal offense, usually punishable with a fine or short jail maximum of under one-year.) They also can make a legal arrest for a felony as long as it actually was committed and they have good reason to believe you did it. They must take you to a police officer or judge who is required by law to take you into custody or give you a citation to appear in court.
How can I get out of jail?
If you are arrested and taken to jail, certain procedures may be carried out before your release. You will be advised of preliminary charges against you. If you are fingerprinted and photographed within a reasonable time of your arrest, you may be taken before a judge who will inform you of the charges filed against you, your basic rights and the bond requirements to be released from jail.
The amount of bond necessary to secure your release usually depends on the seriousness of the crime, your previous criminal record (convictions) if you have ever missed another court appearance, the time you have lived in (and your family or professional connections to) the area. You can request the bail be lowered in consideration of your ties to the community, lack of financial resources, employment record and any factors in your favor.
It is sometimes easier to get out of jail if you hire an attorney. The attorney can also request your bail be lowered if it appears excessive. However, even without an attorney you may be released upon a personal recognizance bond or on your personal promise to appear in court. If you do not appear for your court date, your bond will be forfeited and a warrant will be issued for your arrest.
When should I see a lawyer? If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers should they contact you again (as they have been known to do) to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on the bail process if necessary.
When should I talk to the police?
The general (and safe) rule is to make no statement and sign nothing for the police. If the police are investigating you, you may or may not be aware of it. At some point, they may ask you to come into the station and give a statement. You may believe this is your chance to tell your side of the story, that's what they want you to believe but this is really not in your best interest. Understand that this is a very dangerous time for anyone charged or under investigation for a serious offense. Instead of talking to the police, hire a good criminal defense attorney. A good attorney can intercede on your behalf and talk to detectives. This is a great way to get valuable information and may result in charges not being filed. Most importantly, doing so will keep you from giving a statement that WILL ultimately be used against you. Remember that the police are not there to clear you of the charges; the police are there to make a case against you. Any statement you make will undoubtedly be used AGAINST you by the District Attorney. Even statements made by you that you believe to be harmless can be, and often are, the strongest piece of evidence against you. For example, the police may not know whether you were even in the area of an alleged crime. If you make a statement to the police saying that you were there but had nothing to do with it, the District Attorney no longer needs to prove your presence at the scene of the crime. You have just done that for them!
> back to top Can the police arrest me without evidence of my guilt?
Only if the police have probable cause to believe you have committed the crime. Once they have probable cause, they can arrest you in a number of ways: (1) They can simply come and arrest you (either taking you to jail or releasing you on a promise to appear citation; (2) If they believe you are not a flight risk, they may submit your case to a District Attorneys office who in turn will send you a letter in the mail asking you to appear for an arraignment; or (3) They may ask a judge to issue an arrest warrant and ask you to voluntarily surrender yourself at the police station for booking (photo and fingerprinting).
The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed a crime. If your name is unknown, "John Doe" can be used on the warrant - along with your description.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door - or if there is another good reason - the officer can break in through a door or window.
If the police have an arrest warrant, you should be allowed to see it. If they don't have the warrant with them, you should be allowed to see it as soon as practical.
The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car unless specifically allowed to do so by the warrant.
Resisting an arrest or detention is a crime in and of itself. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use "reasonable" force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
If you are arrested and are in custody, your arraignment must occur within 48 hours of your arrest; however, if you are arrested on a weekend, you may be held for additional time not to exceed 72 hours.
An officer always may only make a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins.
When can an officer search you, your home or your car without a warrant?
Body Searches: If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.
Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms - and even other parts of the same room - are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, that is in plain sight.
Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason - such as a broken taillight - they can take any illegal goods in plain sight. Most commonly cars are searched to take an inventory of their contents after the driver's arrest.
If you, your home or your car is searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you that does not always mean that your case will be dismissed, but it should weaken the case against you.
When can I be released?
If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime; they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest. If arrested on a misdemeanor DUI the normal range in custody is between 2-8 hours - usually 4, but is highly variable. If you are kept in custody of a lengthy period of time, your attorney may be able to get you credit for the excess time applied against the sentence you eventually receive.
What is an arraignment?
Your arraignment will likely be your first appearance in court whether or not you are in custody. At arraignment, your attorney should receive the police reports on your case and any additional evidence that the District Attorney has in his or her possession. Your attorney should also receive a formal complaint, which officially states the charges that have been filed against you. It is important to note that the charges may be different than those for which you were arrested. Where the police can arrest you for one pair of charges, the District Attorney's office may disagree and file a completely different set of charges if they feel the facts support those charges.
If you are in custody, your attorney should have the opportunity to argue for a bail reduction. However, it is important to note some courts will not hear a bail argument without proper notice and what is commonly referred to as an "OR Report." "OR" stands for "Own Recognizance." The "OR" clerk will interview you to see if you present a risk of not showing up in court. They will ask about your personal background, your job, where you live, your job history, and what family support you have within the community. Because this is a bail hearing, the only inquiry is 1) whether or not you are likely to flee the state or country if released on just your promise to return for all court proceedings in your case; and 2) the seriousness of the case.
After the arraignment, if your case is a misdemeanor, the case is set directly for pretrial conference where an attempt can be made by your attorney to settle the case or to set motions to weaken or dismiss the case. If the case is a felony the case is usually set for pre-preliminary hearing conference or set directly for the preliminary hearing.
What is a "preliminary hearing"?
If you were charged with a felony, one of your next court appearances will most likely be a preliminary hearing. A preliminary hearing must be held within ten days of your arraignment date if you are in custody. In some courts, there may be a conference scheduled prior to the preliminary hearing. This conference is a chance for the District Attorney, your attorney and the judge to discuss possible resolution of your case.
The preliminary hearing is the first real opportunity for your attorney to refute the government's evidence against you. At the preliminary hearing, "hearsay" (out of court statements) are commonly admissible. Therefore, the alleged victim may not take the stand; rather, the police officer that took the report may take the stand and testify for and in place of the victim. At the preliminary hearing, the judge will determine whether or not there is probable (reasonable) cause to believe that a crime has been committed and if so, whether or not the defendant committed that crime. The standard of proof at a preliminary hearing is quite low and it is unusual for the defense to outright win a preliminary hearing. Rather, your attorney will use the preliminary hearing to lock down the testimony of key witnesses and determine inconsistencies in the prosecution's case.
What happens after the "preliminary hearing"?
If the judge determines at the preliminary hearing that there are sufficient facts to believe that you committed the crime, you will be bound over to Superior Court (note that many counties have consolidated their municipal courts into one superior court). Once in Superior Court, you will be arraigned on the Information (felony complaint), which will be filed by the District Attorney's office. Once again, the Information may charge you with crimes different than those charged in the original complaint. The District Attorney may file any charges he or she believes were proven at the preliminary hearing. Thus, additional charges with which you were not charged with can surface at this point.
What is a "pretrial conference"?
After the Superior Court arraignment, your next date in court will likely be the pretrial conference. At the pretrial conference, important motions may be argued. Typical motions in a criminal case include the following:
Motion to Suppress
A motion to suppress is filed when your attorney believes that there are grounds to suppress either physical items taken from you or statements made by you.
Penal Code § 995 Motion to Dismiss
A 995 motion to dismiss will be filed by your attorney if they believe there was insufficient evidence at the preliminary hearing from which the judge could make a finding of probable cause.
Motion to Release Information
In certain types of felony cases, most notably sex abuse and child molestation cases, the victims psychological and/or medical records may be relevant. A motion will be filed by your attorney to disclose that information. It is not automatically disclosed because of its privileged nature.
Motion to Sever
In various circumstances, your attorney may wish to have your case separated from that of a co-defendant or have one or more of your charges tried separately from the others.
At your pretrial conference, your attorney will have the opportunity to continue discussions with the District Attorney in an attempt negotiate a plea bargain, if that is what you and the attorney are seeking. Possible favorable dispositions may include a plea bargain that would: 1) strike a prior conviction; 2) strike a prior serious felony; 3) reduce the charge from a felony to a misdemeanor; or 4) reduce the charge from a serious or "strike" offense to a simple felony, or wobbler offense. A wobbler offense is an offense that has the possibility of "wobbling down" to a misdemeanor. Practically speaking, this means that your attorney can request that the offense be reduced to a misdemeanor either during your probationary period or at the end of your probationary period.
What happens at trial?
If no disposition is reached on your case, it will be set for trial. The court has 60 days from the date of your arraignment in which to bring you to trial if you are in custody. The form your trial takes will depend entirely upon the particular circumstances of your case. A prepared attorney will develop an overall theme to your case and call witnesses and introduce evidence, which supports your innocence.
Before trial commences, you and your attorney will have the opportunity to select a jury. This is commonly called voir dire. If you are charged with a felony offense, your attorney will have the opportunity to dismiss ten potential jurors simply because you do not believe they will be favorable to your defense. If you are tried for an offense for which you could get life, your attorney will have the opportunity to dismiss 20 potential jurors.
After the jury is seated, your attorney will argue whatever motions are required in order to give you a fair trial. After those motions are heard, the trial will commence. The prosecution will give an opening statement. Your attorney can give an opening statement either at that time or reserve opening statement until after the prosecutions case is over.
After the opening statement, the prosecution will present its evidence in the form of police officers and other civilian witnesses. Your attorney will have the opportunity to cross-examine each of those witnesses. Once the prosecution rests the case, your attorney will put on your case, calling any helpful witnesses to the stand. These witnesses can include percipient witnesses who watched or viewed the event, as well as character witnesses who can testify as to your good character. After your attorney finishes his or her case, the prosecution has an opportunity to put on rebuttal evidence.
Once all the evidence is closed, the prosecutor and your attorney will give a closing argument to the jury. Your attorney will focus on reasonable doubt and the facts of your case. The jury will then retire to reach its decision. In California , the jury must reach a unanimous decision. If they are deadlocked and cannot reach a unanimous decision, a mistrial will be declared by the judge. In the event of a mistrial, the prosecution has the option to retry the case or dismiss or plea bargain a settlement.
Who maintains arrest records and what do they include?
Local police departments and the State Department of Justice keep arrest records. According to law, they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies, which have a right by state law to investigate your criminal background. However in reality many people, including private investigators, have access to your criminal record.
The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial equally count as convictions.
If you are convicted of committing a misdemeanor, placed on probation and stay out of trouble for the period of that probation, you may be able to have the conviction removed from your record for such purposes as employment background checks after probation is successfully completed. If you are convicted of certain felonies and you successfully complete probation, you maybe able to have the felony reduced to a misdemeanor on your record. The misdemeanor may then be cleared as noted above.
The content of this website is for informational purposes only and is not to be relied upon as legal advice. Viewing this website does not create an attorney-client relationship with P. David Wool. Legal representation will only be established upon receipt of a legal services agreement and full compliance with its terms. The information contained on this website is based on current California state law only and can change over time. Laws vary from state to state. Do not rely upon the content of this website as legal advice. Contact a lawyer at once if you have a legal matter.
