Common Questions - FAQ
In a civil case, one person sues another person for either an amount of money, or for specific performance (you have to do what you promised to do in a contract). In a criminal case, nobody is being sued. Instead, the government is charging a person with committing a crime. So the Government is one party and the person charged with the crime (the defendant) is the other. Victims of crimes are not parties, and they do not decide whether or not to press charges. So if someone call the police claiming they were a victim of an assault or domestic charges, they cannot simply decide to drop the charges. The government may decide to pursue the case even if the victim asks them to drop it.
Felonies are crimes punishable by a fine and a sentence in state prison. Misdemeanors are punishable by a fine and a sentence of a maximum of one year in county jail. Because felonies are more serious than misdemeanors, people charged with felonies are given additional protections.
When the government accuses someone of committing a felony, they must prove that they have enough evidence against this person. In California, this is usually done at a preliminary hearing. At a preliminary hearing, the prosecutor calls witnesses and presents evidence to prove to a judge that there is probably cause that the defendant is guilty of the crime charged. At his hearing, the defendant’s attorney is permitted to cross examine all of the prosecution’s witnesses, and to call his/her own witnesses to present evidence to the contrary. If after hearing all of the evidence, a judge finds that there is probable cause to believe the defendant is guilty of the crime for which he/she is charged, the case is certified and the defendant is arraigned on the charges in superior court.
The government may choose instead to proceed by an indictment instead of a preliminary hearing. Unlike preliminary hearings, indictments are private, and neither the defendant nor his/her attorney is permitted to attend. Instead, the prosecutor presents his/her case to a grand jury, and they decide of there is probable cause to believe the defendant committed the crime for which he/she is charged. Indictments are rarely used in California state cases, but are common in larger, Federal cases.
Regardless of the charges, everyone is innocent until proven guilty. The burden is on the prosecutor to prove that the defendant is guilty beyond a reasonable doubt.
Beyond a reasonable doubt is explained to California Juries as follows: “Reasonable doubt is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge”.
All crimes are written in statutes, and the charges will list the specific statute a person is accused of violating, along with the date of the alleged violation and other relevant information. This information will be given to your attorney at your arraignment.
Sometimes there are conditions that will increase the penalty associated with a crime. These conditions are called enhancements. Examples of enhancements can be if someone is accused of using a firearm, or if they have a prior prison history, or if they commit a DUI with a child in the car.
In order for the police to detain an individual, they must have a reasonable suspicion that he/she has committed a crime. A detention occurs when a reasonable person would not feet free to leave, and submits to that detention (if police tell you not to leave and you run, you have not been detained). If police think you are armed, they may pat you down for weapons.
For police to arrest someone, they must have probable cause to believe that the individual committed a crime. In most situations, to arrest someone for a misdemeanor, the officer must have probable cause to believe the crime was committed in his presence. (Not necessary for felonies).
If the police arrest you without having probable cause, they have violated your rights under the Fourth Amendments of the United States Constitution. The remedy is that the Court must throw out any evidence the police obtain after the illegal arrest (unless there is another legal reason for the evidence to be admissible). Thus, if the police illegally stop and arrest you, search you, and find contraband in your pocket, the contraband may not come in as evidence, and any charges based on that contraband must be dismissed.
You do not have any obligation to cooperate with the police. As a matter of fact, if you are arrested, they will tell you that you do not have to say anything, and that everything you say will be used against you in court. Believe them. You can politely tell the police that you would like to exercise your right to remain silent, and that you would like to speak to a lawyer before making any statements. At that point, they may not question you anymore.
Absolutely not. You have the right to say to the police that you do not consent to a search of your person, your home, or your vehicle. If the police insist on searching anyway, do not physically resist. Simply and clearly assert your right not to be searched. You are much better off letting your lawyer deal with the results of that illegal search in a courtroom than trying to deal with it by yourself with two angry, armed police officers on a dark street.
Your Miranda Rights are the rights that you see read on many TV shows and movies. “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed at no expense to you. Do you understand the rights that I have just read to you? Having these rights in mind, would you like to make a statement?”
The police are required to read you your Miranda Rights before they perform an in custody interrogation. The purpose of these rights is to insure that any statements you make are not coerced, and that you are making them freely and voluntarily. Miranda rights are not required if:
Police question you before you are arrested
You make a statement after being arrested without being questioned (e.g. a spontaneous statement of “I only had 5 beers”).
If the police arrest you and question you without first reading you your Miranda Rights, the questioning is illegal. Any information they get from that questioning must be excluded from any court proceedings. Furthermore, and evidence they get as a direct result from that confession must also be excluded. For example, the police illegally question you and you tell them the murder weapon is under your bed. The police go to your house, look under your bed, and find the murder weapon. In this case, both the weapon and your statement that the weapon was under your bed, may not be used in court.
If the police have a warrant to search your home or car, do not resist. The search warrant has been issued by a judge who has already found probable cause to search. If it can be shown later that the search warrant was illegally issued, the results of the search can be excluded from evidence.
If you are asked to go to the police station for questioning, call a lawyer immediately. Remember, anything you say to the police can and will be used against you in a court of law.
If you are arrested, you will either be cited and released, or you will be kept in custody. If you are kept in custody, bail will be set. For information about bail and ways it can be posted, click here.
Your attorney can make a motion in court to have your bail reduced. The amount of bail is based on the crime charged, the defendant’s criminal history, and his/her ties to the community. The purpose of bail is simply to insure the court that the defendant will not run away, and to protect society if the person is accused of committing a crime that presents a danger to the public.
O.R. means release on your own recognizance. If you are given an O.R. release, your bail is zero, and you simply promise to come to court for your court appearances when you are ordered to do so. For misdemeanor cases, you may have your attorney appear for you in most circumstances.
SPR stands for supervised pretrial release. If you are given SPR, you are released without having to post any bail. However, there are conditions set by the court which you will be required to follow, such as reporting to the SPR program three times per week.
There are many types of sentences other than jail, depending on the facts of a case. These include drug or alcohol programs, home detention, the sheriff’s work alternative program, community service, and many others. For more information about alternative sentencing, call the Law Offices of Scot Candell.
Yes. The police are given a certain amount of discretion, but if the police illegally arrest you or use excessive force during an arrest, you can bring a lawsuit in either State of Federal Court, depending on the facts of the case.
Yes. There is a process call an expungement, which enables you to get certain convictions removed from your record. There are certain conditions that must be met, such as not being on probation for any other offense. Expungements usually apply to misdemeanors, but many felonies can be reduced to misdemeanors and then removed from your records. For more information on expungements, contact the Law Offices of Scot Candell
You’ve decided you need a lawyer. How do you know which lawyer to hire
There are several important things to consider when hiring a lawyer:
- 1. Trust When choosing a lawyer to represent you, the most important thing is that you choose someone you trust. As your case progresses, your lawyer will be evaluating the evidence and giving you advice. As you are not a lawyer, you will be relying on his or her expertise. It is important to remember that your lawyer is not making the decisions. You make all decisions involving your case. You should have the kind of relationship with your lawyer which lets you listen to his/her advice, question it, talk about your concerns, and then make your own decision. The best way to find out if a lawyer is right for you is to meet with him/her in person and talk. Most lawyers will have free initial consultations, so meet with more than one if you can. I’ve listed some suggested topics for initial lawyer consultations. If you don’t feel that your lawyer is working for your best interest, it’s time to get a new lawyer
- 2. Specialization Let’s say you hurt your eye and needed to go to a doctor. When looking for a doctor, the first thing you would do is find a doctor who specializes in eyes. You can go to the best doctor in the world, but if he/she is a foot doctor, they won’t be able to help you. Law is similar to medicine in this way. It is complicated, and it is impossible to master all areas of law. Lawyers specialize in certain areas. While many lawyers can write a will or look over a simple contract, only lawyers that devote a large amount of their practice to criminal defense or personal injury are qualified to handle those cases. Do not go to a lawyer for a criminal case that is a “general practitioner” and has handled a couple of DUIs. They won’t understand the system and you will not get a good result.
- 3. Time Different lawyers run their practices differently. Some take as many clients as they possibly can, charge less, and spend less time on each case. While this might save you money in the short run, this type of lawyer will not be able to achieve the same results as a lawyer that takes fewer cases and spends more time on each case. At the Law Offices of Scot Candell, we limit the number of cases in order to ensure excellent representation for each client.
- 4. Fees Your lawyer should be clear about the fees up front. Some lawyers will charge a flat fee for an entire case, while other lawyers will charge on an hourly basis. At the Law Offices of Scot Candell, we give you the choice of which of these fee options you prefer. At the initial consultation, we will give you a flat fee for all criminal cases based on the estimated number of hours it will take to represent you. In addition, we will give you the option of depositing a retainer fee in our attorney client trust account and hiring our office on an hourly basis. If money is left in the trust account when your case is completed, it will be returned to you within 14 days. If you are unhappy with our services, you can terminate them at any time for any reason, and any unused money will be returned to you within 14 days.
- 5. Experience You can learn about being a lawyer in law school, but the only way to become a good lawyer is through experience. Your lawyer should have many trials under his/her belt. Each case has the potential to go to trial, and you want a lawyer that is not afraid to go to trial if it is in the client’s best interest. An experienced attorney is able to accurately evaluate cases, negotiate the best deals for his/her client, and get the best results if a case goes to trial. The lawyer you choose to handle your case is the most important decision you will make. Interview many lawyers and ask difficult questions. You have a lot riding on your case, so get the best lawyer that you can.
If you are arrested, you may be held in custody. If this happens, a bail amount will normally be set. This means that you are required to post the amount of the bail for you to be released from custody. The purpose of bail is to insure that you return to court for future court appearances. If you pay the bail, are released from custody, and then do not come to future court appearances, you may forfeit your entire bail amount.
Bail: As an example, let’s assume that you are arrested and your bail is set at $50,000. There are several ways you can have bail posted:
Posting Bail Yourself: If a friend of family member is able to post the entire bail, they simply go to the courthouse, post the bail, and you are released. If you come to all of your court appearances and do not violate any other conditions of your release, at the end of your case, the entire amount will be returned. This is the cheapest and easiest way to post bail.
Bail Bonds: If you cannot afford the entire amount of bail, a friend or family member can go to a bail bondsman. You pay the bail bondsman 10% of the bail, and they will post the remaining 90%. In our example, you pay the bail bondsman $5,000, and they pay the rest. The only catch is that at the end of the case, you do not get your $5,000 back. The bail bondsman keeps this as his/her fee. If you are going to use a bail bondsman, contact The Law Offices of Scot Candell. We have relationships with many bail bondsmen and can often obtain a lower rate for our clients.
Property Bond: If you own property, you can post a property bond. This process is complicated, takes several weeks, and should be done with a lawyer. If you need to post a property bond, you can contact The Law Offices of Scot Candell for assistance.
Criminal cases in California are divided into 2 categories: Felonies and Misdemeanors.
Misdemeanors: Misdemeanors are defined as crimes punishable by a maximum of one year in the county jail. Misdemeanors include most DUIs, petty thefts, simple assaults, and many other common crimes.
Arraignment: The first court appearance is an arraignment. This is the time when you are officially informed of the charges against you, and your attorney is given most of the evidence that the prosecutor plans to use against you in your case.
Time waivers: You have the right to a speedy trial. At the arraignment, you can insist that they bring you to trial quickly, or you can choose to waive this right. This decision will depend on the facts of your case, and you should discuss it with your lawyer.
Pre Trial Conference: The next court appearance is usually a pre trial conference. At this point, your lawyer will have become familiar with the fact of your case and the law that applies to those specific facts. At the pre trial conference, you lawyer will typically go into the Judge’s chambers with the Judge and Prosecutor (D.A.) and try to resolve your case. Your lawyer will explain to the D.A. how weak the case is and what a wonderful person you are and why the case should be dismissed. At this point, your case may be dismissed, or the D.A. may make an offer to reduce some charges if you are willing to plea guilty to other charges. At this point, your lawyer will talk to you about the offer and give his/her opinion about whether this is a good offer or not. As you generally will not know if this is a reasonable offer, it is vital to have a lawyer that you trust. If you decide to accept this offer, the case is usually over. If not, it continues towards trial.
Motions: There are many motions that your attorney can make to help your case. They depend on the facts of your case, and there are too many to summarize here. There are generally hearings on these motions, and the time frame depends on the complexity of the motions.
Trial: If your case is still not resolved, it is set for trial. At trial in California cases, a jury of 12 people must unanimously find you guilty beyond a reasonable doubt for you to be convicted of any crime. If 11 people vote guilty and 1 votes not guilty, it is a mistrial. The D.A. then has the choice to try again or to dismiss your case.
Felonies: Felonies are more serious than misdemeanors, and are punishable by a sentence in State Prison. Since they are more serious, defendants are given additional protections.
Felonies begin the same way as misdemeanors, with an arraignment and pre-trial conference. However, in felonies, there is an additional step, called a preliminary hearing.
Preliminary Hearing: Individuals charged with felonies are usually given a preliminary hearing. At the preliminary hearing, the D.A. must prove to a judge that they have enough evidence to continue prosecuting the case. At this hearing, the D.A. will often call police officers and other witness to prove their case. You lawyer gets to cross examine all witnesses produced by the D.A. At the end of the hearing, the judge will decide if enough evidence has been presented for the case to continue. If the judge feels there has not been enough evidence, the case is dismissed. If the judge feels there has been enough evidence, the case is certified to the superior court, and the process begins again. (occasionally, the D.A. will proceed by an indictment. Click here for more information on preliminary hearings and indictments). Click here for more info on prelim hearings and indictments.
If the case is certified to superior court, there is a new arraignment, new pretrial conferences, new motions filed on your behalf, and if the case is not dismissed or an adequate settlement is not reached, the case is set for trial.