Charges Filed

Charges Filed

Once criminal charges have been filed, the accused person and his or her family must suffer though a long, uncertain and difficult criminal court process. A criminal attorney will assist you through this process. Here are 10 things to consider when hiring a criminal defense lawyer in San Diego.

Length of the Court Process

The criminal court process can take either several months and perhaps several years, depending on the type of case, even though in all cases the accused has speedy trial rights guaranteed under State Statutory and Federal Constitutional Law. For misdemeanor matters, that means a right to go to trial within 45-court days for criminal defendants out of jail, and 30-court days for these defendants in jail. Felony matters must generally proceed to trial within 70-court days of the first court appearance.

 

In most cases, criminal defendants “waive time” and give up their speedy trial rights so that their attorney can have time to properly evaluate the prosecutor’s case, conduct their own investigation, and prepare legal challenges to the evidence. Remember that law enforcement may have spent months or years investigating a case before charges are filed, giving them a possible early advantage over the defense due to their familiarity with the matter. In these cases, it is not a surprising or unusual request to obtain additional time to prepare a defense to the charges.

Here, in San Diego, the length of time it takes to bring a matter to trial varies. A defense attorney needs to be very careful to schedule his or her trials so that the criminal charges can be thoroughly investigated and attacked.  The San Diego judges generally accommodate a flexible schedule, especially through the preliminary hearing phase in a felony case.

 

The criminal court process involves moving your case toward either settlement or toward trial. You cannot be punished unless you plead guilty or a jury finds you guilty, but once there is a conviction there is usually no turning back. The conviction should be considered final. The decision to plead guilty or to go to trial should not then be made lightly, and it can only be made in conjunction with intelligent and informed advice from the attorney. Because this decision is so important, cases often take longer than the statutory time required to take a case to trial. An experienced defense attorney will be the best judge of deciding when your matter should be brought to trial.

Felony Court Process

The first court hearing in the felony criminal court is called the arraignment. This hearing is either scheduled after an arrest, in response to a letter directing the accused to go to court, or after an attorney has agreed to “surrender” the accused.

 

Arraignment

At the arraignment hearing, the defendant is advised of the charges and his or her Constitutional rights, release or bail status may be argued, and the Court will order that a free attorney be appointed if the accused is unable to afford to hire his or her own attorney. The next court dates are set, which may include a bail review hearing, a “readiness conference,” and a preliminary hearing.

 

Cases involving a Grand Jury indictment proceed a little differently at the first hearing. The matter may be scheduled for a bail review hearing, a readiness hearing, a “motions hearing,” and also jury trial. The main difference in the Court process between a case initiated by complaint and that initiated by the Grand Jury is that there is no right to a preliminary hearing after a Grand Jury indictment. The Grand Jury matter may therefore proceed faster toward trial.

Readiness Conference

The readiness and preliminary hearings must be set within 10-court days of the first hearing, unless the defendant gives up this right, as explained above. The readiness hearing is designed for the prosecutor, defense attorney and judge to meet and decide if the case can be settled by a plea bargain, whether a further readiness hearing should be set, or whether the matter should proceed to a preliminary hearing.

By the time of the readiness hearing, the attorney should, at a minimum, have reviewed the “discovery” (police reports, documents, tape recordings, photographs, witness statements, lab reports etc.) with his or her client. The attorney should have visited the “scene,” if there is one. The defendant should be made aware every element of each charge, all defenses that may exist to the charges, the maximum or minimum sentences possible, the direct and indirect consequences of a conviction, and the attorney’s evaluation of the strengths and weaknesses of the prosecution’s case and the defense case, given the information currently available. The attorney should be prepared to demand additional discovery, if necessary, in order to effectively advise the defendant. The attorney should have conducted or be in the process of conducting any investigation important to a clear understanding of the case. If the case does not resolve at a readiness conference, the matter proceeds at a later date to a preliminary hearing.

Preliminary Hearing

After the readiness conferences, the matter proceeds to a separate hearing called a preliminary hearing. The preliminary hearing is a very important stage of the felony criminal court process, as the hearing is designed to screen out groundless or weak charges. The prosecution must present evidence to a judge demonstrating a strong suspicion that the accused is guilty of the charged crimes. At the hearing, the defense is entitled to attack the evidence offered by the prosecution. The defense may also offer evidence and witnesses, and the defendant is entitled to testify at this hearing. At this hearing, the defense is also entitled to challenge the probable cause of any search or seizure of evidence.

 

Plea bargaining can also occur at the preliminary hearing, especially in cases involving multiple defendants.

After the Preliminary Hearing

There are several hearings following the preliminary hearing, involving at a minimum, another arraignment, possibly a bail review, another readiness conference, and then a jury trial. There also may be hearings related to, for example, special issues involving search and seizure of evidence, to uncover past misconduct of police officers, to compel additional discovery, to uncover a confidential informant (a “snitch”), etc. Each case will involve different issues and different possible hearings.

 

In short, however, the entire court process is geared toward moving the matter toward a plea bargain settlement or moving toward a jury trial.

The Jury Trial

The jury trial is the ultimate protection that a criminal defendant has against false charges or charges not supported by the evidence. The collective experience and wisdom of twelve impartial members of the community is gathered to scrutinize the strength of what the prosecution claims is proof of a crime. At the end of the case, the jury will have to consider if there are two or more explanations for the evidence or whether the prosecution has proven the charge beyond a reasonable doubt. Under circumstances where the evidence is subject to two explanations, if both explanations are based in reason, the jury is obligated by law to adopt the explanation favorable to the defense. In other words, the prosecution must eliminate any defense based in reason, even if a much stronger explanation points toward guilt. That is quite a strong protection available for every criminal defendant.

 

A discussion of the government’s burden of proof beyond a reasonable doubt and what is involved in the jury trial process is beyond the scope of a web site. If you require any advice regarding our own jury trial, you cannot get accurate and complete advice on the internet. Do not wait to contact your attorney, as you may not get another chance to prepare your defense. Accurate and complete advice is critical before you undertake your trial.

Misdemeanor Court Process

The prosecution of a misdemeanor matter generally involves the same process as a felony case, except that there is no preliminary hearing and there is no automatic second readiness conference. The defense attorney can excuse his or her client from appearing in court hearings on most misdemeanor cases, providing, of course, that the criminal defendant is completely cooperative with the attorney and responsive to all the attorney’s requests. The San Diego courts are very flexible with scheduling misdemeanor matters.






Domenic

Domenic J. Lombardo (Attorney at Law), graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. He opened his own firm in 1996 where he practices to this day focusing exclusively on defending criminal matters.
About Domenic

Domenic J. Lombardo (Attorney at Law), graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. He opened his own firm in 1996 where he practices to this day focusing exclusively on defending criminal matters.