The Process

The Process – What to Expect Following an Arrest

You can only protect your liberties in this world by protecting the other man’s freedom.”

-Clarence Darrow

Every person and every case is unique, but we have one goal – to protect your freedom and your rights. There are processes in place that must be followed as defined by legal parameters, but there is room for creative thought, strategy, and tactical excellence.  These are the qualities that separate us from other lawyers and that define who we are at The KLF.

At The Kavinoky Law Firm, the steps that come after an arrest are ones we have taken with clients thousands of times, but the process is probably new to you. The process for how a case gets from start to finish will depend on whether the crime charged is a misdemeanor or a felony.  Both begin with an arrest,  but the process becomes very different. Let us walk you through it:

Misdemeanor Cases

Felony Cases

– Arrest

– Arrest

– Options for Release from Custody

– Options for Release from Custody

– Arraignment

– Arraignment

– Pretrial Hearings and Motions

– Preliminary Hearing

– Trial

– Arraignment on the Information

– Pretrial Hearings and Motions

– Trial

When You are Arrested

You can be arrested if law enforcement believes there is probable cause that you have committed a felony. You may be arrested based on evidence gathered by the police with or without a warrant. You may also be arrested for a misdemeanor if you are witnessed in the commission of a crime.

Many times law enforcement officers will want to question a person who has been arrested.  Sadly, we’ve seen many people try to talk their way out of trouble, and who only end up talking themselves into deeper trouble. Your rights are guaranteed by the U.S. Constitution, but they only help you if you choose to exercise them. Those rights are given as a Miranda warning and should be given to you before you are questioned. NOTE: Miranda warnings are only required for “custodial interrogation,” meaning questioning that happens when you are not free to leave or otherwise end the encounter.  There is no requirement to give Miranda warnings to people who are being questioned out of custody.

  • You have the right to remain silent.
  • Anything you say may be used against you.
  • You have a right to have a lawyer present while you are questioned.
  • If you cannot afford a lawyer, one will be appointed for you.

We advise that you contact us as soon as possible for a free consultation. If you give up your rights and understand what this means, you can be questioned without a lawyer present. If you do so and change your mind, the officer must stop asking questions and allow you to be represented by a lawyer.

When you are arrested, you are taken into custody and booked. You will be asked to provide personal identifying information and be fingerprinted and photographed. Your personal effects will be taken and kept safe until you are released. The police will run your name through their database to see if you have a criminal record, or any active warrants for your arrest.

Release From Custody

Some crimes are minor, and those who are arrested will only be held for a short period and then “cited out” or released with nothing more than a promise to appear at a future court date. (This is also called being released “OR” or “own your own recognizance.”)

For those that are not released with just a citation, they will be forced to wait in custody until they are brought to court for their arraignment (which is the first formal court appearance where criminal defendants are formally charged, and advised of the charges against them, and a plea is entered).  The law requires that criminal defendants be arraigned as soon as practicable, which usually means within 48 hours of arrest (excluding weekends and holidays) of your arrest when you are in custody.

It is this 48 hour window that provides an opportunity to post bail. Every criminal violation is listed on a county “bail schedule” that gives a corresponding amount for each criminal offense. There are two ways for someone to make bail: either by posting cash bail (usually that means depositing certified funds, like a cashier’s check, for the total amount of the bail with the jailer), or by using a bail bondsman.  When cash bail is posted, the person who posts it gets all that money back – when the case is over, if the defendant makes all of their court appearances as promised. With a bail bondsman, the bondsman takes the risk because they are putting up that amount on your behalf, which is why they are paid a fee – usually 10% of the bond amount – which is their’s to keep.  You do not get that money back at the end of the case.

There are pros and cons to posting cash bail versus using a bail bondsman. If you are considering which is best in your particular case, we invite you to call us, and we would be happy to provide further insight to help you make the best possible choice.

The Arraignment

The prosecutor will review the written reports generated by law enforcement, and decide what charges are filed against you.  The arraignment is where you are given a copy of those charges in writing, along with the various reports and evidence that support the prosecutor’s filing decision.  It is also the time for the defendant to enter a plea to those charges.

One of the benefits to having a private lawyer is that in most misdemeanor cases, your lawyer can appear on your behalf at the arraignment; if you are out of custody (on bail or after you were released on your own recognizance), you do NOT need to appear. You get to go about your normal life, and your lawyer can handle everything for you.

There are exceptions.  You will be required to attend the court proceedings if you are:

  • in custody, or
  • charged with certain specified misdemeanors that involve protective orders (like domestic violence charges), or
  • charged with a felony,

you will be required to personally appear in court at the arraignment.

The prosecution will provide your lawyer with the evidence the government intends to use against you, which is called the “discovery.”  In addition to turning over evidence they intend to use to show your guilt, the prosecution is required to turn over everything in their possession that is “exculpatory,” meaning that it is either bad for them or good for you.

The arraignment is the proceeding where you (or your lawyer on your behalf) will enter a plea of guilty, not guilty or nolo contendere (no contest), which means you are not contesting the charge. (A “no contest” plea will be treated by the court just like a guilty plea; the only difference is that a no contest plea in a misdemeanor case can’t be used against you in a civil lawsuit. This is NOT something to rush into without consultation with an attorney.)

A plea of “not guilty” will put every aspect of the case at issue, and allow it to proceed forward.  If it is a felony, the next event scheduled is usually the Preliminary Hearing. If it is a misdemeanor, the case proceeds to the Pretrial phase.

The Preliminary Hearing Phase

In a felony case, the next significant event after the arraignment is called the Preliminary Hearing. The Preliminary Hearing is like a “mini-trial” that involves live witness testimony, but it is only in front of a judge, there is no jury.  The judge is there to listen to all of the evidence, and decide whether or not the criminal defendant should be “held to answer,” which means that the case against the defendant is allowed to proceed.

The Preliminary Hearing only happens in felony cases.  People accused of misdemeanor crimes do not have the right to a Preliminary Hearing.

In our view, the Preliminary Hearing is the most significant event in a felony criminal case, outside of a jury trial.  This is because:

  • The parties to a criminal case are NOT allowed to take depositions of witnesses. (A deposition is a formal interview, under oath, where lawyers get to ask questions of a witness.)  The Preliminary Hearing is often the ONLY chance defense lawyers will have to question a witness prior to trial;
  • The judge at a Preliminary Hearing has the discretion to allow the case to go forward as a felony, to reduce the charges from a felony to a misdemeanor, or even to dismiss the case entirely;
  • While the arrest reports give significant clues into the Prosecutor’s theory of the case, the Preliminary Hearing will be a time they will argue the case specifics to the judge, giving a greater level of insight into how the Prosecution views the evidence, and more importantly, what they believe that evidence means.

It is common that when criminal defense lawyers are hired to defend someone in a felony case, the attorney-client fee agreement will provide for representations in phases, the first phase being representation by the attorney through the Preliminary Hearing.  This is actually the most fair and appropriate arrangement for both attorney and client, since:

  • The lawyer will be thoroughly preparing and intimately familiar with the case by the time the Preliminary Hearing happens, so the client should get credit for that on future fee arrangements;
  • While the attorney and client may both have certain ideas what the case will be at the outset, that level of understanding will be significantly improved by going through the Preliminary Hearing process; and
  • It is far more fair to both lawyer and client to discuss post-Preliminary Hearing fees after there is greater insight about the amount of legal work and type of legal work that will be required.  Before the Preliminary Hearing, both attorney and client are forced to do some amount of guessing.

Again, it is important to understand that this entire Preliminary Hearing discussion applies only to felony cases.  Misdemeanor criminal charges do not involve Preliminary Hearings.  Instead, those charged with misdemeanors go directly from the arraignment to the Pretrial phase.

The Pretrial Phase

After the arraignment (in a misdemeanor case) or after the Preliminary Hearing (in a felony case), the criminal defendant will be in the “pretrial” phase.  This is a period of time that can last for several weeks or months, depending upon the type of criminal charges and the issues in the case.

During the pretrial phase, your defense attorney will be filing a variety of “motions” with the court.  (A “motion” is simply a formal request that the judge order something.)  Typical motions in a criminal case include:

  • Discovery Motions, where the defense seeks an order forcing the prosecutor to turn over additional materials that have not yet been provided;
  • Motions to Suppress Evidence, where defense attorneys are asking the judge to suppress, or throw out, any evidence that has been improperly or illegally obtained;
  • Pitchess Motions, which are really a special kind of discovery motion that seek to get into the personnel records of arresting officers to locate potential witnesses who have complained of excessive force, dishonesty, or racial bias by these police officers or sheriff’s deputies.

In a felony case, after the Preliminary Hearing, it is also common to make a Motion to Dismiss under California Penal Code section 995, where the defense argues that the judge presiding over the Preliminary Hearing wrongfully held the defendant to answer to the charges against them.  If other motions were made at the Preliminary Hearing, such as a Motion to Suppress Evidence, the 995 Motion is an opportunity to renew them too.

The intention behind the various motions in the pretrial phase is to either force a dismissal of the charges, or to leverage a better settlement opportunity. If the case is settled, which can happen during any phase, that brings an end to the case.  If not, the defendant in either a felony or a misdemeanor case  has the Constitutional right to a jury trial.

The Criminal Trial

You are legally presumed to be innocent until you are convicted, or plead guilty. The prosecutor has to prove the each and every element of the state’s case beyond a reasonable doubt. The elements are outlined in the Jury Instructions that are read and given in written form to jurors that hear the case.

Defendants in California are entitled to a trial before a jury of their peers, meaning other citizens.  Jury selection is a process where the pool of prospective jurors is questioned by the judge, prosecutor and defense attorney. Each side has the chance to eliminate jurors through  “preemptory challenges” and excuse those with cause who may not be able to be fair.

Once a jury is chosen, the opening statements are giving outlining each side’s case. This is where you get to see your lawyer in action and where their brilliance can shine.

The prosecution and the defense call their witnesses and present their evidence and each is allowed to cross examine the other’s witnesses. A good trial lawyer understands this dance – this fine line that requires finesse – how far to push and when to pull back. What works with one witness and does not work with another.

Lawyer’s careers have been built and have fallen on the closing argument. An eloquent lawyer makes a compelling statement for the innocence of his or her client and reminds the jury that the burden of proof is on the prosecution. A good trial lawyer tells the facts, but in a way that evokes a response from the jury. That’s why closing statements make compelling fodder for TV and film, but this is your life. The jury carries those words into the deliberation. They will also go over the evidence and may come back to the judge with questions. Of course you will be on edge waiting for the verdict and there is no guarantee of a time period for this important process.

You will stand in the courtroom with your lawyer to hear the verdict. Sometimes a jury cannot come to a  unanimous verdict and the judge will have to declare a hung jury. There may be a retrial, but often the prosecution will not refile the charges.  Any outcome other than a guilty verdict is definitely a win for the defense.

You may walk out of the courtroom a free man or woman with your lawyer by your side, but if that does not happen, your lawyer still has several options, including a Motion for a New Trial, Sentencing Memoranda that are tailored to your case, a Notice of Appeal or even a Writ of Habeas Corpus. We want you to have hope. The lawyers of The Kavinoky Law Firm have one mandate – we’ll put all of our resources into your case and work tirelessly to achieve justice for you.


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