After the Arrest - What Happens Next
The questions everyone wants to have answered after they have been arrested and charged is what will happen next and how long will it take. The answers are below. But one thing I want to say upfront is for you not to worry since that only make things worse. You will get through this and survive quite nicely-that's a promise.
Freedom-a very valuable thing and sometimes costly
Most people arrested for misdemeanors are "cited out" by the police - meaning they are released with a promise to appear in court on a later date. On serious misdemeanors, priors, and felonies, freedom is usually obtained by posting bail with a bondsman. The bondsman puts up his bond for the bail amount and you pay him 7-10% of the bail amount.
There are strategies to avoid using a bondsman if you are in custody. You can call the bail commissioner by phone from the jail (in LA County the phone no. is 213 351 8373) and request that the commissioner release you OR (own recognizance/promise to appear). You can also sit in jail and make an OR motion at the first court hearing which should be held within two court days of the arrest. Most people want to see the light of day now so bail bondsmen phones ring off the hook.
The most important thing to remember is time is your friend. In general, the longer your case is drawn out, the better your chances. Here's the reasoning: First, the process can take many months to complete. Even though you want this ordeal to be over and off your plate yesterday, this doesn't usually benefit a criminal defendant.
Guess what--judges and prosecutors fight defense attorneys every day about continuances. Why? Because judges (many of whom are former prosecutors) and DAs know that the longer the case lingers, the better the chance that important witnesses and evidence will be lost or compromised. You want time to pass and they don't. That's a fact of life and any skilled criminal defense attorney knows about the basic push and pull of criminal defense practice. There are exceptions (where you know a crucial witness has disappeared) but they are few and far between.
While the case is pending, you are able to say on an employment application that you have not been convicted of the charged crime.
Now that you know that your case will most likely not be over in a few days or even a few weeks, here is what you can expect:
Appearing in court
The law says that in most misdemeanors your appearance is excused if you are represented by a lawyer. On the other hand, you will be required to appear if charged with a felony (unless your lawyer can spare you an appearance by filing a PC 977(b) document --requires good cause). If you have the option of not appearing in court, take it. Besides the time involved, travel, lines, metal detectors, it's just not a pleasant place. You have a judge with the power (if he chooses to use that power) to order an armed bailiff to put you behind bars. Stay away from court if you have that option.
Timing - Just a few days after your arrest if in custody or a month or two down the line if cited out or on bail.
The arraignment can be postponed--it doesn't have to happen on the scheduled day. I routinely "continue" the arraignment in almost every case. The arraignment is a proceeding where the judge simply wants to know what you, the defendant, wants to do with your case and if you will be represented. When I appear at an arraignment, the judge often asks, "What's your pleasure, counsel?" My "pleasure" is that the case be dismissed but that generally won't happen at the arraignment where no witnesses are present--just the judge, you (unless you are excused), your attorney and the prosecutor.
If you appear at the arraignment without counsel, the court will continue the arraignment for a few weeks to give you time to obtain a lawyer if that's your desire.
Prosecutors often extend "offers" to the defense attorney at the arraignment. These "offers" usually are not great since the attorney has not yet had time to carefully review the arrest report, hear from the client about it, investigate or do legal research. Once defense attorneys have been able to accomplish these tasks, they can make "offers" of their own. If the case is not resolved at the arraignment (they usually aren't), a plea of not guilty is entered and future dates are set.
Felonies: early stages
The case is often set for what is known as an EDP (early disposition program) hearing within 30 days. A report is t hen prepared with a recommendation as to sentencing. If the client continues to be in custody, additional bail motions can be made during the life of the case. I'll make them early and often. If the case is not resolved, a preliminary hearing ("prelim") date will be set. This is a key hearing because it permits the defense to "get a peek" and to preview the type of case the DA will likely present if the case goes all the way to trial. A prelim is not a trial. The judge hears the DA's case and decides if there is "probable cause" to send the case to a trial court for further proceedings.
Prelim dates can be continued, plea bargaining can be attempted, motions filed, discovery is often undertaken and witnesses can be "sized up." Prelims are key junctures in the felony process.
Misdemeanors: early stages
"Pretrials" are set about 30 days after the arraignment. Cases are often resolved at a pretrial. This is a hearing where the parties can share their views of the case, discuss strengths and weaknesses, feel out the other side, talk to the judge and possibly resolve the case or determine that more time is needed to prepare motions, perform research, or conduct other preparation and investigation. In most misdemeanors, clients can skip this hearing as well. Pretrials can be set again and again, with good cause. Remember, judges want to move the case along toward resolution, one way or the other. You, on the other hand, want to turn over all reasonable stones that might give you an advantage. This takes time and if your attorney is skilled, he will be able to obtain that needed time.
Most cases are resolved without trial and a pretrial can be an excellent hearing for that purpose. In many cases, resolutions can be more to the client's benefit if police officer witnesses are not present to pressure the prosecutor. I like to keep such witnesses away from court whenever I can for that very reason.
Every case stands on its own individual merits and every client has his or her own special interests and concerns. I always ask my client what they want to accomplish in the case and what are their goals. These are important for me to keep in mind and clients often have different goals even when charged with similar offenses.
Felonies and Misdemeanors-later stages
In cases where pretrials are exhausted without case resolution, the case will head toward trial. Note that defendants do have the right to a speedy trial but, as previously stated, speedy trials generally only favor the DA unless the client is in custody for obvious reasons. And, even if the case is set for trial, there is always the chance to "settle" a case before trial. Judges like to avoid trials and so do many DAs. Dealing with a jury panel usually presents problems for all involved and some judges lean very hard on DAs and defense attorneys to "settle" cases. One thing to keep in mind: if the defendant is found guilty after trial, the judge is not bound by the "offer" that was on the table before trial. This is decision time and a skilled lawyer will help you make the best decision.
I assist my clients in making decisions in their cases. My clients often turn to me and ask me to make their decisions for them. I will if that is their request, but always with their informed and knowing consent. Sometimes decisions are difficult to make and they require time to weigh the pros and cons. I strive to give my clients (and their loved ones) more than sufficient time to wrestle with these issues.
If the case does go to trial, we will devote all our energies to aggressively defend you and come out on top. Unfortunately, there are no guarantees when dealing with juries since the process is layered with uncertainty and risk. A defendant should appreciate the risks involved before opting for trial.