Felony Case Process: Expert Legal Guidance from DCD Law

After your arraignment, the next court appearance is generally a preliminary hearing setting (commonly referred to as “prelim setting”), and also simultaneously an Early Disposition Program (“EDP”) court hearing.

During this court hearing, the main goal is to try and resolve the case without moving to the preliminary hearing itself. Your attorney, the Deputy District Attorney, and the judge will all discuss the possibility of settling the case. The DA will give an “offer” to settle the case, and in many cases, the judge will also give its own offer as well.

If there is a successful settlement of the case, the agreement will be called a plea bargain.

If the case is not resolved at this phase, then the case will move forward to the next phase–the preliminary hearing.

In every felony case in California, you are entitled to a speedy preliminary hearing before a court within ten (10) court days of the arraignment.

Note: you can waive (aka give up) the right to a speedy preliminary hearing in your case. This is commonly referred to as “waiving time.” If you waive time, you will not lose your right to a preliminary hearing. Instead, the preliminary hearing will take place at some date beyond ten (10) court days (usually a couple of weeks or a month later).

There are a lot of factors at play regarding whether you should waive time. Some of these factors include, but are not limited to:

1. Whether you will remain in custody (because you cannot afford to post bail, or the court set no bail);
2. Your attorney needs time to best prepare for your case; and
3. Your work or life obligations

At some point, the preliminary hearing will take place.

What is the Purpose of a Preliminary Hearing?

Because of the high stakes involved in a felony case, the primary purpose of a preliminary hearing is to weed out weak or unfounded charges against you.

Note, however, that the standard required to be shown at a preliminary hearing is much lower than the very high standard required at trial.

The standard required to be shown at the preliminary hearing is “probable cause.” This means that the DA must show that 1) there is a probable cause that a crime was committed, and 2) that there is probable cause that you were involved in the crime. Probable cause generally means a strong suspicion. This is a low standard, indeed.

In Los Angeles County, the majority of cases get “held to answer,” which basically means that the court finds enough evidence to allow the charges against you to continue. Being held to answer does not automatically mean that you will lose at trial. Far from.

What Happens at the Preliminary Hearing?

At the preliminary hearing, you and your attorney will be seated on the defense side of the courtroom, and the Deputy District Attorney (and likely a detective) will be seated on the prosecution side of the courtroom. A judge will preside over the hearing, but there will be no jury.

The DA gets the first opportunity to call its witnesses, as the DA has the burden of proving to the judge that probable cause exists. Each witness will testify under oath. Every case is unique, but most of the time the witnesses will be police officers and perhaps a few civilian eyewitnesses.

The DA will ask questions of each of its own witnesses in what is referred to as “direct examination.” After the direct examination of each witness is over, your lawyer has the opportunity to “cross-examine” that witness. Likewise, if the defense decides to call its own witnesses and ask the witnesses questions on direct examination, the DA gets a chance to cross-examine each defense witness as well. It goes both ways.

Once the DA has finished its case, it will “rest” and the defense has a chance to call its own witnesses.

Note: The preliminary hearing is a very important opportunity to assess how much evidence the DA has against you. It is also a tremendous time for both you and your lawyer to see and hear firsthand how the witnesses may testify against you, should the case continue to trial. For this reason, the defense rarely calls its own witnesses or presents a full defense. For strategy, the defense may not want to tip off its best defense to the police and prosecution side. This is why in some cases, your lawyer may only cross-examine DA witnesses, but not present witnesses for your side.

If you get held to answer at the preliminary hearing, the next phase is the arraignment on the Information.

Once you have been held to answer after the preliminary hearing, the next court hearing will be held in the trial court, which will handle the case for the remainder of the case. In this trial court, the DA files a new document called the “Information.”

The Information contains the list of charges that you will be tried for in trial. Most of the time, the charges listed in the Felony Complaint are the same charges listed in the Information. However, sometimes an additional charge can be added or a charge dismissed based on what happened at the preliminary hearing.

When you are arraigned on the Information in the trial court, most of the same processes from phase 1 repeat once again.

After this court hearing, the case proceeds to a few final hearings before trial.

After the arraignment on the Information, there will be a few pretrial hearings and ultimately a pretrial readiness conference before trial. Your lawyer, the DA, and the judge will again discuss the prospects of settling the case. If there is no case settlement, then the case will end up going to trial.

If the case proceeds to trial, the pretrial hearings will be opportunities for your lawyer to challenge and try to prevent certain evidence from coming in at trial. There will also be an exchange of the identities of witnesses who will be called for trial.

Further, your lawyer and the DA will likely file “motions,” which are usually written requests for orders from the judge. Successful motions can make or break a case. For example, a successful motion to suppress evidence can severely weaken the prosecution’s case, and provide an incentive for a favorable plea bargain.

At some point, a final pretrial readiness conference will be called, which is a last-ditch effort to resolve the case without a trial. If there is no resolution, the case will proceed to trial.

The last phase in the felony court process is trial. The trial can be either a jury trial or a bench trial (judge only), but a jury trial is a choice for the vast majority of trials. For this reason, I will focus on jury trials.

Your case will have a panel of twelve (12) jurors, and two (2) alternate jurors. Only the twelve (12) jurors will decide the issue of your guilt; the alternates are there in case something happens to one of the twelve (12) jurors.

Unlike the low standard of the preliminary hearing, the standard required to prove your guilt at trial is the highest standard in all the land–proof beyond a reasonable doubt. This is a very high threshold to reach, and the jury can only convict you if they all unanimously (all twelve jurors) find you guilty beyond a reasonable doubt.

The trial phase of the felony case process further breaks down into the following:

1. Jury selection is called voir dire, where a large pool of jurors are questioned until the final twelve (12) jurors and two (2) alternates are selected;
2. Opening statements, where both the prosecutor and defense can each introduce their side of the case to the jurors;
3. Direct and cross-examination of witnesses– the prosecutor gets to start first since it has the burden of proving you guilty beyond a reasonable doubt; both the prosecution and defense can ask questions of their own witnesses on direct examination, and ask questions of the opposing side’s witnesses on cross-examination;
4. Closing argument, where both the prosecutor and defense get to argue why the jury should agree with their side of the case;
5. If a verdict is reached, the jury will deliver its verdict; in some cases, there is a split or hung jury and a verdict cannot be reached;
6. If a verdict is reached by the jury, and you are found guilty, the judge will sentence you.