Criminal Procedure

The following is a description of typical court proceedings in a criminal case.  Although most of the information is applicable to both California and Nevada, there are some differences for Nevada and those are listed at the bottom of this page.

Arraignment

The arraignment is the official beginning of a criminal case.  That is where the criminal complaint is filed by the District Attorney’s Office.  The charges may be the same or different than the charges a person was arrested for and booked on.  The Judge will begin an arraignment by reading the criminal complaint and informing the Defendant of the charges against them and stating the statutory and Constitutional Rights that person has.  Both of those readings may be waived.

At the arraignment a Defendant is expected to enter a plea (either guilty, no contest, or not guilty).  Most people plead not guilty at arraignment.  If a person pleads guilty or no contest, then there is nothing left to contest and the case will be set for a sentencing hearing if the Defendant is not immediately sentenced.  After a not guilty plea the Judge will set the case for some type of further proceeding.  Normally that is some type of pre-trial status hearing.  A Defendant must decide at arraignment if they want to exercise their right to a speedy trial (or preliminary hearing) or if they want to let the hearing be scheduled at the convenience of all parties.

Bail Review Hearing

When a Defendant is in custody they may request the Court review their bail.  Typically, the Defendant is asking the Court to lower the bail amount or release them on their own recognizance (OR).  An OR release means that Court feels satisfied that the Defendant will return to Court and no bail assurance is necessary.  OR or bail can have conditions set by the Judge.  Those conditions can include no alcohol or drugs, no contact with victims, stay away from certain places, attendance to counseling, drug testing, and/or GPS monitoring.

Pre-trial Conferences / Status Conference

In misdemeanor cases or felony cases that are passed a preliminary hearing, the Court will have periodic hearings to monitor the status of the case.  The Judge will want to know the status of the case including details of any potential plea bargain resolutions.  Issues like discovery, witness availability and any extraordinary matters might be discussed as well.  If there is a resolution to the case, the Defendant may change his or her plea to enter into a plea bargain.  There is no limit on the amount of pre-trial hearings that can take place.  Normally, most courts will want to check on the case at least once per month, but that frequency can be adjusted based on the status of the case.

Preliminary Hearing

The preliminary hearing is the first chance to evaluate the State’s evidence in a felony case.  Any case brought to court by a criminal complaint must go through a preliminary hearing.  At the hearing the State must show that there is sufficient evidence to move forward to a felony trial and that there is probable cause to believe the Defendant is in fact the person that committed the crime.  Although this hearing is meant to filter cases where there is not enough evidence for a felony trial, the State does not need to prove its case beyond a reasonable doubt.  The state must prove the two elements by showing evidence that would rise to the level of probable cause.  If the Defendant is held to answer after the preliminary hearing, then the State can proceed in taking the case to a felony trial.

A Defendant has a right to a speedy preliminary hearing.  In California that means the Defendant may have the hearing within 10 court days and within 60 calendar days of the arraignment.  In Nevada the Defendant has the right to have the hearing within 15 court days of the arraignment.  Waiving the speedy preliminary hearing right is not giving up the right to the hearing, just to have it within a certain time.  A Defendant may withdraw the waiver and ask for a hearing within a reasonable time from the date of withdrawal.  Generally, Defendants that are out of custody waive the speedy preliminary hearing right to enable the attorneys to work up the case completely.  Defendants in custody, who cannot bail, want to exercise their rights to have speedy hearings.

Arraignment on the Information

After a preliminary hearing, the case is procedurally in a different court (although often physically the court is the same) and the State brings a new charging document called an Information.  The Information will contain all the charges that the Court approved at the preliminary hearing.  The primary purpose of the hearing is to schedule the trial date and any other hearing dates that must be scheduled.  In California, a Defendant has a right to have a trial within 60 days of the arraignment on the information.
Occasionally, the State will bypass filing a criminal complaint by taking a case to the grand jury.  If the grand jury issues an indictment , then the case is brought straight to arraignment at the Superior Court and the Defendant does not have a preliminary hearing.

Motion Hearings

A Defendant may file many different motions in their own defense during any state of the proceedings.  Tactically, it makes sense to file some motions prior to a preliminary hearing and some afterwards.  Motions filed before the preliminary hearing may be heard at the same time as the preliminary hearing for judicial efficiency, but that is not always the case.  Below are a few common motions that are filed by Defendants:

Search / seizure

One of the most common motions filed in the criminal courts are search and seizure motions.  A Defendant may challenge the legal authority of the State to conduct a search of a person, home, vehicle or other place.  This motion is based on the Fourth Amendment to the United States Constitution which bans the Government from conducting unreasonable searches and seizures.  That means that the police must be acting with a warrant or must justify their action with a warrant exception or probable cause.  There is also a procedure to challenge the issuing of a warrant.

Miranda

Another common motion filed by a Defendant is a motion to exclude a statement because it was made without Miranda warnings or it was otherwise involuntary.  If the Court finds there was an issue with the statement, then the court will not allow the prosecution to use the statement as evidence in court.

Dismissal

A Defendant may bring a motion asking the court to dismiss the case based on the facts.  Essentially, the Defendant is asking the Court to evaluate the facts and the law and determine whether or not a crime has even been committed.  Motions to dismiss in medical marijuana cases based on the compassionate use act defense (also called Mower motions) are very common in cases involving medical marijuana.

Readiness and Settlement Conference

Prior to a trial, the court will order the parties to confer one last time in an attempt to settle the case.  The hearing is also a last chance to deal with any pre-trial issues or issues that may come up at trial.

In Limine Motions

In Limine motions are motions concerning the trial.  Generally one side will want a ruling on the admissibility of certain evidence.  Things like jury instructions and procedural trial matters can be decided with in Limine motions.  These are heard outside of the presence of the jury with only the lawyers and parties in the courtroom.

Trial

Jury Trial

A jury trial is a trial before a group of your peers.   Most states require twelve impartial members of the community to be impaneled for the case to be heard.  Voir dire is the process of jury selection where each side gets to question prospective jurors and exercise challenges.  In a jury trial, the jury is tasked with deciding factual issues and the Judge decides the legal issues.  At the end of the trial, the Judge will instruct the jury on how to apply the law to the facts before they deliberate on what facts were proved during the trial.

Bench Trial

A bench trial (also know as a Court Trial) is where there is no jury.  The Judge sits as the decider of both legal and factual issues.  After the conclusion of the case, the Judge will consider all the evidence to determine if the facts show that the State has met its burden to prove the defendant guilty or not.
Whether the trial involves a jury or not, the State is required to prove the defendant guilty beyond a reasonable doubt.

Probation & Parole Violation Allegations

When a person is accused of a probation or parole violation, they will have many of the same hearings described above.  Normally, the state will file a petition to revoke probation.  The issues are decided before a Judge and there are no juries in violation proceedings.  If the Court does find the Defendant in violation, the Court must decide whether to reinstate the person on parole or probation (often with some consequences) or revoke parole or probation and sentence the Defendant to prison.

Nevada

Justice vs. District Court

Just as California used to separate the courts into municipal and superior courts, the Courts in Nevada are divided into Justice and District Courts.  The Justice courts are the lower level courts where all misdemeanor matters are handled.  The Justice courts also handle all felony matters through the preliminary hearing.  The felony case will proceed to District Court only if the Justice Court Judge rules there is enough evidence at the preliminary hearing for the case to proceed.

Bench Trials for Misdemeanors

The law in the state of Nevada only guarantees jury trials for felony matters.  All misdemeanor cases are handled through a bench trial.  That means the Judge makes the factual determinations at the end of the trial and then decides based on those facts whether or not the State has met its burden of proof.

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