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McGregor & Ernenwein Law Offices

Q
I've Been Charged With a Felony. What Happens Next?

A


In a felony case there are generally 3 phases.


The first phase begins with the arraignment.  An arraignment is when you and your attorney appear in court and are handed a complaint that includes a statement of the charges against you. Along with that complaint is the discovery which are the reports in your case.  At the arraignment we will enter a plea of not guilty and also argue, if necessary, an OR (own recognizance) release or a reduction in bail.  OR stands for release on your own recognizance, in other words, your promise to appear at your next court date without the necessity of the judge ordering a bail amount.  In some instances it may be beneficial to continue this entire arraignment process to a future date.


After the arraignment a date will be set for a preliminary hearing setting.  A preliminary hearing setting date is when your attorney has the opportunity to attempt to resolve the case.  This process is called plea bargaining.  A plea bargain is a compromise or an agreement which results in a settlement of your case.  Some judges will allow several preliminary hearing setting dates for this purpose.  Other judges will only grant 1 or possibly 2 preliminary hearing setting dates.  If, for any reason, your case is not resolved during the preliminary hearing setting date your case will be set for what is called the preliminary hearing.


The preliminary hearing is a probable cause hearing.  You, your attorney, the district attorney and the district attorney’s investigating officer will be present.  The judge will look to the district attorney to present some evidence which will give the judge a strong suspicion that you have committed the offenses that you are accused of by the district attorney.  The district attorney will call their witnesses and they will tell their story.  Your attorney will be able to cross examine those witnesses in order to accomplish certain goals.


The number 1 goal for your attorney at the preliminary hearing would be to get the charges dismissed.  This, however, is very rare due to the fact that the judge only has to have a strong suspicion that you committed each and every element of the crime that you are accused of.  Unlike a jury trial where all 12 jurors would have to believe beyond a reasonable doubt - a much higher standard - that you are guilty, at each and every element, of the crime.  Every once and awhile at a preliminary hearing you can get the charges completely dismissed.


The number 2 goal at the preliminary hearing is to test the strengths of the prosecution’s case.  This is very important because you will learn where their weaknesses are.


The number 3 goal at the preliminary hearing is to weaken the prosecution’s case which can often be accomplished by exposing inconsistencies and inplausibilities in the prosecution’s case. 


The fourth goal would be to set up your defenses to the case.


At the end of the preliminary hearing your attorney will make a motion to dismiss for the insufficiency of the evidence and in many cases argue to the judge why the charges should be dismissed.  Again, it is very rare that a judge will dismiss the charges at the preliminary hearing, however, quite often a count (one of possibly several allegations) will be not proven and therefore dismissed.  At the end of the preliminary hearing the judge will bind the defendant over to the second phase.


At the second phase there will be a second arraignment.  Please recall the original arraignment when you and your attorney were before the court at the beginning of phase 1.  The reason for the 2nd arraignment is due to the fact that the judge has passed the case on to another jurisdiction and at the preliminary hearing, some of the accusations, charges or counts may be dismissed.  The charging document at the first arraignment and the first phase is called a complaint which simply states what you have been accused of.  In phase 2 at the second arraignment the charging document is called an Information.  The Information tells you what you are being accused of.  At the second arraignment you will enter a plea of not guilty.  After your plea of not guilty there will be a series of pre-trial dates.


These pre-trial dates are designed to do very much what the preliminary hearing setting dates did in phase 1 which was to attempt to resolve the case by way of plea bargain, compromise or settlement.  Also in phase 2  legal motions will be prepared and filed.  Motions consist of discovery motions which make sure that the prosecution provides all evidence and documents that they have.  There may be a 1538.5 motion which is a search and seizure motion.  There may a 995 motion which is a motion to let the judge in Phase 2 know that there were some legal missteps by the judge in the preliminary hearing phase and that you should not have been bound over or held over on these particular charges that are now before the judge.


These along with other types of motions can be run during the 2nd phase.  If for some reason you cannot resolve the case in the 2nd phase we move to the 3rd phase which is trial.


A trial is where 12 people from the community are selected to decide guilt or innocence in your case.  Every once and awhile we may waive the jury and let a judge decide the guilt or innocence in your case, this is, however, very rare.  In trial all 12 jurors will have to believe beyond a reasonable doubt, which is a very high legal standard, that you are guilty of each and every act of each and every crime that you are accused of.


There are three possible outcomes for a jury trial:  not guilty which is commonly referred to as an acquittal which exonerates you of any wrong doing in the case that the prosecution brought against you.  The second is a guilty verdict.  Remember, all 12 members of the jury would have to unanimously agree that you are guilty of each and every element of the crime beyond a reasonable doubt.


Third is what is referred to as a mis-trial which is where all 12 jurors cannot agree upon your guilt or innocence.  If the jury finds you guilty then there will be a sentencing which is where the judge determines what punishment is appropriate in your case.  If the jury cannot agree unanimously upon guilt or innocence then the judge will declare a mistrial and the district attorney can start the trial process over as if it had never occurred.

This felony process from beginning to end could take anywhere from several months up to a year depending on the charges.  It is usually to the benefit of the accused to have as much time as possible in order to develop their defense.