The Legal Process

The legal process can be bewildering, even frightening, especially to the first-time offender. Orange County criminal defense attorney William Weinberg understands that even though he knows the process like the back of his hand, it is mysterious territory to the lay person. He’s an expert at navigating the ins and outs of the Orange County criminal justice system and he makes an effort to guide his clients through every step of the process with the goal of relieving the inevitable stress it brings.

When a person is arrested in Orange County, he or she may be released after booking or may be required to remain in jail until the first appearance before a judge (arraignment) if he or she cannot make bail according to the Orange County uniform bail schedule. The arrestee may not be allowed bail before the arraignment if the charge is a serious or violent felony or if the arrestee is accused of domestic violence. When a person has been arrested, it is a good idea to promptly contact a criminal defense lawyer serving Orange County.

The first appearance before the court is called an “arraignment.” By law, a felony arraignment must be held within 48 hours of arrest (not including weekends and holidays). There are exceptions to this rule, for example, when someone is arrested but charges aren’t filed, but usually felony arrestees will be facing a judge for the arraignment process soon after their arrest.

At the arraignment, whether on a felony or a misdemeanor, the court must inform the defendant of the charges filed against him or her and advise the defendant of his or her constitutional rights. The defendant will then enter a plea. Everyone is familiar with the pleas of not guilty and guilty, but there is another plea that may be entered: nolo contendere. A plea of nolo contendere informs the court that the defendant will not contest the charge; it is the equivalent of a guilty plea except that the plea cannot be used against the defendant in a civil suit. As a practical matter, almost every defendant pleas “not guilty” at the arraignment stage. The plea is made through the defendant’s attorney. If the charge is a misdemeanor, the court may accept a plea from the defendant’s attorney without the necessity of the defendant’s presence.

Following the plea, the judge will then set bail or may release the defendant on his or her own recognizance. In some cases, the court will remand the defendant to custody without bail if the judge believes the defendant is a flight risk or a danger to society. If bail is ordered and the defendant cannot post the bail, the defendant will not be released from custody until bail is made or the court orders a lower bail following a separate hearing. In Orange County, bail at the arrest stage is set pursuant to the uniform bail schedule but the judge may or may not adhere to the amounts in this schedule at the arraignment—it is up to the judge as to whether to set bail and for how much.

If any one of the charges against a defendant is a felony, the defendant will be afforded a preliminary hearing. This hearing can be waived by the defendant but that is not common and often is not the best choice. The preliminary hearing is like a mini-trial, but it’s not a trial. There is limited testimony and there is no jury. The purpose of the hearing is to allow the judge to hear the initial evidence and decide if there is probable cause for the charge or charges. In other words, the judge is not deciding whether the defendant is guilty or not but only if the prosecutor has a good reason based on the preliminary evidence to charge the defendant with the offense (or offenses). The defendant is represented by a criminal defense attorney during this phase. If the court finds the prosecutor lacks the requisite evidence, the court can dismiss the charge (or charges) at the preliminary hearing.

If the only charge (or charges) is a misdemeanor, there is no preliminary hearing. Misdemeanor offenses go directly to the next step: plea or trial.

The vast majority of cases in California, whether misdemeanor or felony, are disposed of during the plea-bargaining process. Orange County is no different. Plea bargaining is just that: a bargaining process, or more politely put: a negotiation. The prosecutor bargains with the defendant’s criminal defense lawyer for a plea that is usually a less severe offense than the originally charged offense or offenses. Or the bargaining may entail dropping some of the charges and agreeing that the defendant will plead guilty to the remaining charge or charges. The defendant always has the last say as to whether to accept or reject the offer. A plea bargain is considered a contract between the defendant and the prosecution. Once the bargain is reached, it is presented to the judge who will then enter the judgment and sentence the defendant.

Very few cases ever end up before a jury, but a defendant has the constitutional right to a trial before a jury of peers. The types of cases that typically end up before a jury include those where the charges are very serious or where the evidence is very weak. Sometimes a case goes to trial because the defendant insists on a trial and sometimes that can be because he or she is innocent of the charge; it is the defendant’s absolute right to have a trial. However, when a defendant makes that choice and especially if the prosecution has a strong case, the defendant may end up with an outcome worse than if he or she accepted a plea bargain. At trial the defendant has many constitutional rights that are in place to assure he or she will receive a fair trial.

There are many stages of the legal process that can occur between a preliminary hearing and plea bargaining or trial. The most important component is what is called “discovery.” Essentially discovery is where both sides provide any evidence they have concerning the charge or charges to the other. The sharing of this information is required by law and it is the prosecution that will be providing the bulk of the discovery to the defendant. An experienced Orange County criminal defense attorney will carefully sort through and investigate all the discovery provided by the prosecution. If the evidence warrants it, a third-party expert investigation may be suggested by the defense attorney. Discovery is the “meat and potatoes” to developing a criminal defense strategy.

This is just a general overview of the criminal process. Every case is different but most cases will follow the procedure outlined above. William Weinberg has been a criminal defense lawyer in Orange County for almost 25 years and has helped hundreds of clients facing the complex legal process, always with the end goal of obtaining the best possible outcome for each individual case. Call Mr. Weinberg at (949) 474-8008 or contact him at bill@williamweinberg.com. He will consult with you regarding your case without obligation or fee.