Arrest, Jail, and Court Process
Arrest, Jail, and Court Process
If a police officer believes you committed a crime (i.e., has probable cause), you’ll be arrested and they can legally search your bags and your person. Under some circumstances, they can even do a strip search.
At any time after the arrest and during custody, the cops may try to get you to talk. Don’t. Only say the magic words, “I am going to remain silent. I want to see a lawyer.” The police are legally supposed to stop questioning you after you say that—but they probably won’t. Just keep saying the magic words if they keep questioning you.
If you say anything to the cops—even, “I need to go to the bathroom”—you “turn off” your rights. If the cops start questioning you again, re-invoke your rights by saying the magic words again. You can repeat them as a mantra if it helps you stay silent about other stuff. Then remain silent. Don’t talk about the specifics of your case with your friends (or anyone else) in jail or over the jail phone.
Citation or Booking
If you are cited, they release you with a paper saying to appear in court on a certain date. If you are booked, they may take your photo and fingerprints. They may take away your stuff and put you in some kind of detention area. They can keep you for 36 hours (not including weekends and holidays) before charging you. If you are arrested on the Friday of a holiday weekend, they can keep you until the following Tuesday afternoon. In some cases, you may be offered to be released on bail before your first appearance.
First Court Appearance
Typically, a first appearance includes these three hearings:
- Arraignment: The prosecutor charges you or provides a complaint. You may enter a plea (guilty or not guilty) at this time, or you may wait until the initial trial appearance. Keep in mind that if you plead guilty, it is impossible to take it back.
- You may wish to challenge whether there is probable cause. You may demand a written complaint. Note: The prosecutor can drop the charges anytime or the judge can dismiss for lack of probable cause. If the charges are dropped, new charges can be brought later.
- Bail Hearing: Your bail is set or you are released on personal recognizance (you don’t pay bail, just promise to make your court appearances). You or your attorney may present reasons why you can safely be released (such as that you won’t flee or be a danger to society). This evidence includes how long you’ve lived here, where you work or go to school, etc. (Note that if you are from out of state or have outstanding warrants, the judge may set a higher bail.)
- Appointment of Counsel: If you can show on paper that you’re low-income, you may get a public defender or other free legal representation. You may also hire an attorney or represent yourself (known as pro se).
If a bail amount is set, you have a few options:
- You can put up the full bail amount if you have it, which would then be returned to you when your case is over, less any fines or restitution if you plead guilty or are convicted at trial.
- If you don’t have the full bail amount, you can make an arrangement with a bail bonds agent, which typically involves paying them 10% of the total bail amount , plus fees, and putting down collateral for the remaining amount of the bail (e.g., the deed to a house). The bail bonds agent then agrees to cover your bail amount for your release, but you do not ever get the money you paid them returned to you.
- You can have your lawyer fight to get your bail reduced at a future hearing.
- You can choose not to bail out. This avoids putting up large amounts of money for your bail or losing money to a bail bonds agent.
Probable Cause vs Charging
Cops determine probable cause to arrest you for a particular violation if they reasonably believe that you committed a crime. But cops only recommend charges to the prosecutor; the prosecutor is the one who decides what you’ll actually be charged with in court. When the prosecutor charges you, what you are charged with may not be consistent with what you were arrested for—or what actually happened. Don’t let the charges scare you. They want to intimidate you into pleading guilty and taking a lousy deal.
At any time after you are arrested, the prosecutor may try to bargain with you by offering you a “plea.” This means you plead guilty to some or all of the charges against you. Remember that if you plead guilty, it is virtually impossible to take it back, so do not rush into accepting a plea. Make sure you understand exactly what you are pleading guilty to and what the consequences are: fines, probation, drug testing, travel restrictions, etc.
Plea bargaining is very tricky and it would be good to have an attorney helping you—but some attorneys (even otherwise good ones) will try to rush you. If in doubt, plead “not guilty;” you can always plead guilty later if desired. Many people have found that if they wait, they’ll get a better offer, or the charges will be dropped. But waiting to plead guilty isn’t enough; you have to put up a vigorous defense in the meantime to show the prosecutor that you are serious about fighting the charges and aren’t going to make their job easy. It is possible that if you don’t take the pleas offered, your case could go all the way to trial, where you can be found not guilty (acquitted) or convicted and get punished much more severely than what you were offered before.
After the first appearance, there can be other hearings, such as initial hearing, omnibus hearing, motion hearings, etc. These hearings may be referred to as pre-trial hearings (even if there won’t be a trial).
After weeks or months of pre-trial hearings, if you don’t plead guilty and they don’t drop charges, you’ll go to trial. The prosecutor will make their case, question witnesses and bring in evidence. Your attorney will do the same for you (or you will, if you’re representing yourself pro se). This process generally takes a few days but could go longer if you’re facing several serious charges. You have the right to a jury trial for misdemeanor or felony cases. It may be more strategic to have a jury trial or a bench (no jury, just the judge) trial, depending on your circumstances.
Trial is a high-stakes game. The overwhelming majority of criminal cases—more than 90%—don’t get that far. This can work for you. The prosecutor’s office has limited resources, and if you make a strong case (in court and in the press), it could overwhelm them. A trial can work against you, as well. It takes a lot of resources to put up a strong defense. This can cost a lot of money if you’re paying for your lawyer. If you have a free lawyer, they may not be able to put up the vigorous defense you want and need. And if you’re found guilty, you’ll very often get a much worse deal than anything they offered you for a plea bargain. That’s the whole point of a plea deal: The prosecutor offers you a lighter punishment to save them the hassle and risk of going to trial. If you turn their plea deals down and go to trial, it pisses them off and makes them work harder, and they’ll try to punish you for it.
The sentencing hearing happens after the plea hearing or the trial. Sentences may include: incarceration, stay of imposition, stay of adjudication, probation, time served reduction, concurrent (or consecutive) sentences, increased penalties, continuance, etc. Even if you’re convicted, there are steps you can take to reduce your punishment or get a new trial, but it becomes much more difficult. Make sure you understand all the steps, risks, and consequences before you make any legal decisions.
Also see: “What to expect in court”