Understanding the Criminal Process

This is an introduction to the criminal process for victims and their families and will describe the relevant victim rights along the way. Throughout the entire criminal process, victims have the right (under California Constitution, Article I, Section 28(b)) to be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, and to be reasonably protected from the defendant and persons acting on behalf of the defendant.

 

Before Charges Are Filed

  • At the crime scene:
    • A suspect may be arrested at a crime scene.
    • A suspect may not be arrested at the crime scene or may have fled the scene of the crime prior to the police arriving
  • After the crime is committed:
  • Police may apprehend a person at a place other than the scene of the crime
  • Suspects may not be arrested prior to charges being filed
  • Just because the police arrest someone does not mean that the person will go to jail; the police can arrest someone and keep them for a reasonable amount of time. If the police lack sufficient evidence, the suspect must be released.
  •  Victims may request to have Police reports amended to include information that may have been mistakenly left out of the report.
  • Police send all relevant reports to the District Attorney’s office to determine whether or not charges are going to be filed.
  • Victims have a right to be informed of and to reasonably confer with the prosecuting agency regarding the arrest of the defendant (if known by the prosecutor).
  • Beyond the police station:

 

From Charges to Court

  • After reviewing the police report, the District Attorney may charge the suspect with a crime(s); however, not every report filed by the police leads to a criminal charge.
    • Victims have a right to be informed and to reasonably confer with the prosecuting agency regarding the charges filed.
    • Not all people charged are in police custody; the District Attorney can charge someone and compel them to come to court for a hearing.
  • If a suspect is arrested, they are held in jail until the Initial Hearing/Arraignment (where they may be released).
  • Victims have a right to be informed of and to reasonably confer with the prosecuting agency regarding the arrest of the defendant (if known by the prosecutor).

 

Initial Hearing/Arraignment

  • The Initial Hearing/Arraignment must occur within 48 hours of a suspect’s arrest and is the suspect’s first appearance in court before the judge, where the suspect is informed of the charges against him by the District Attorney.
  • Victims have a right to be informed of all public proceedings at which the defendant and the prosecutor are entitled to be present, and to be present at all such proceedings.
  • A suspect/Defendant may be appointed an attorney, or given time to find their own attorney.
  • Victims have a right to prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law
  • Victims have a right to refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents
  • The defendant may enter a plea:
  • Victims have a right to be heard at any proceeding involving a plea, or any proceeding in which a right of the victim is at issue
  • If the defendant enters a “Guilty” or “No Contest” plea, then the defendant is convicted (found guilty) and court proceeds directly to sentencing
    • The defendant may be sentenced at this Initial Hearing or may be sentenced at a later date (no later than 6 days from the time of conviction)
    • If the defendant is to be sentenced at a later date, and the defendant is in custody, the court will either release the defendant or hold the defendant in custody until sentencing
    • Victims have a right to be heard at any proceeding involving a plea, or any proceeding in which a right of the victim is at issue
  • If the defendant enters a “Not-Guilty” plea, then the proceeds to trial
  • If the defendant is in custody, the court will either release the defendant or hold him/her in custody until the trial date
  • Victims have a right to be heard at any proceeding involving a post-arrest release decision, or any proceeding in which a right of the victim is at issue
  • (1) Be released on own recognizance (“OR”) = allowed to be out of custody without supervision.
    • Victims have a right to be heard at any proceeding involving a post-arrest release decision, or any proceeding in which a right of the victim is at issue.
  • (2) Have bail set (which could lead to a Bail Hearing) = defendant is held in custody unless defendant can pay amount set for bail; if defendant pays the amount set, then they are released from custody subject to certain conditions.
  • Victims have the right to have the safety of the victim and the victim’s family considered in fixing the amount of bail.
  • Victims have the right to be reasonably protected from the defendant and persons acting on behalf of the defendant.
  • (3) Be in custody = defendant remains in or is taken into police custody (held at the county jail).
  • Prior to trial, the defendant may:
  • The judge may order protective orders for the victim(s).

 

 

Pre-Trial

  • Victims have a right to be informed of and to reasonably confer with the prosecuting agency before any pretrial disposition of the case
  • Preliminary Hearing = a hearing prior to trial where the judge reviews the evidence against the defendant to ensure that there is sufficient “probable cause” to go through with a trial.
  • Pre-Trial Hearing = a hearing usually set a week before trial in order to confirm that both the defense and prosecution are ready to proceed to trial.

 

Trial

  • Victims have a right to a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceeding
  • Types of trial:
    • Bench = trial before a judge without a jury.
    • Jury = trial before a judge with a jury of one’s peers.
      (Suspects may choose to waive their right to a trial by jury)
  • Aspects of a jury trial:
  • Jury Selection: where the defense and prosecution pick the jury (in a Jury trial).
  • Opening Statements: statements by both the defense and prosecution before evidence is presented.
  • Presentation of Evidence/Testimony: both the defense and prosecution have the option to present evidence and question witnesses at trial.
    • Victims have a right to the prompt return of property when no longer needed as evidence.
    • Victims have a right to prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.
    • Victims have a right to refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
  • Closing Argument: statements by both the defense and prosecution after all evidence is presented.
  • Jury Deliberations: when the jury steps out of the court room to discuss whether the defendant is guilty or not.
  • Verdict: when the jury, or the judge in a bench trial, announces to the court whether or not the defendant is guilty.
  • Sentencing: where the judge imposes the sentence of the defendant (this can lead to a Sentencing Hearing)
  • Victims have a right to be heard at any proceeding involving a sentencing

 

Sentencing

  • Presentencing Report may be provided by the Probation Department; providing probation’s opinion on what the sentence should be for the defendant.
    • Victims have a right to provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.
    • Victims have a right to receive the pre-sentence report when available to the defendant, except for those portions made confidential by law.
  • The convicted person has a right to not be sentenced sooner than 6 hours or later than 6 days after the verdict is presented; most defendants ask to be sentenced right away
  • Victims have a right to be heard at any proceeding involving sentencing or any proceeding in which a right of the victim is at issue
  • Fine
  • Jail/Prison
  • Probation
    • Victims have a right to be notified of and participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified  of the parole or other release of the offender.
  • Alternative Sentencing: requiring the convicted person to do something other than the above mentioned sentences.
  • Death (only in capital cases i.e., murder)
  • Restitution is money paid to the victim from the defendant
  • All persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.
  • Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.
  • Restitution amounts set at sentencing allow for faster collection by the victim, if no amount is set the victim must return to court to get an amount determined by the court.
  • All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.
  • Amounts ordered may be determined after sentencing has occurred if the amount was uncertain at the time of the trial.
  • Types of Sentences (can include a combination of the following):
  • Restitution:
  • Victims have a right to be reasonably protected from the defendant and persons acting on behalf of the defendant.
  • Protective Orders can be ordered at sentencing as well

 

Post-Sentencing

  • Victims have a right to be informed of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.
  • New Trial/Appeal: the convicted person may protest to the process or ruling provided by the trial court; this means the case continues.
  • Notice of Release from Custody
    • Victims have a right to be informed of the scheduled release date of the defendant, and the release of or the escape by the defendant from custody
    • Victims have a right to be free from intimidation, harassment, and abuse, and to be reasonably protected from the defendant and the persons acting on behalf of the defendant
    • Victims have a right to be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified of the parole or other release of the offender
    • Protective Orders are court orders that protect the victim from contact with the suspect, defendant or convicted person

Resources:

  • County Victim/Witness Assistance Advocates can explain the criminal process to victims and help them by providing services to them and/or sitting with them in the court room; please call 1-800-VICTIMS to get the phone number of your local Victim/Witness Assistance organization.
  • All the victim’s rights underlined above are rights in California Constitution, Article I, Section 28(b) for victims of crime. You can learn more about Marsy’s Law at http://www.cdcr.ca.gov/Victim_Services/Marsys_Law.html, or by calling 1-800-VICTIMS.
  • National Center for Victims of Crime
    Provides victims with referrals to attorneys for civil lawsuits
    202-467-8700