San Diego Criminal Lawyer Explains Common Criminal Law Phrases

A criminal courtroom can be a scary place, but understanding the legal terminology and the meaning of the various proceedings and procedures can make the experience much less daunting.  A good attorney can help you to fully understand what is taking place in court and how each step factors into working for the best outcome in your case.  This article will discuss some of the legal terminology you may hear in court, but is in no way a substitute for a consultation and certainly not for representation in your San Diego criminal case.

ARREST:  Simply put, a person is arrested when handcuffed and brought to a police station for booking on suspicion of having committed a crime.  Some people will be released after arrest without being booked into county jail.  It is also possible to post bail after arrest and get a future court date.  A person who has been arrested has the right to remain silent and the right to have an attorney present during any questioning.

PROBABLE CAUSE:  Probable cause is a standard of proof that is required to justify arrests, warrants, searches, and more.  This makes probable cause a very important, and often disputed standard.  Probable means more likely than not, but this standard is not truly an objective one, treated differently by police, judges, prosecutors and defense attorneys.  If a judge determines that there was not probable cause for an arrest or for a search, it may lead to suppression of evidence or a dismissal of the case altogether.

SEARCH:  A search is an intrusion on a person's privacy, usually in the course of investigation for a criminal offense.  A traffic stop, a "pat down," and observation of items in plain sight do not rise to the level of search.  In order to justify a search, an officer needs (a) consent, (b) a warrant, (c) probable cause, or (d) exigent circumstances.  Search and seizure law is complex and very fact-specific.  A search leading to discovery of evidence of a crime can be challenged on Fourth Amendment grounds and can lead to suppression of evidence.

MIRANDA RIGHTS:  An arrested person (a person in custody) has a right to be free from unreasonable interrogation.  The rule that the courts use to protect an arrested person's rights is to require the police to read the arrested person their rights upon arrest and prior to any questioning.  These rights include a right to remain silent and a right to an attorney.  A person who is advised and continues to make statements without requesting an attorney will be deemed to have made the statements voluntarily.  If the police fail to read someone their rights, the remedy is only exclusion of statements made during custodial interrogation prior to the warnings being read.  This is a common misconception in criminal law.  Many people believe that the police's failure to read Miranda rights would lead to a dismissal or suppression of all statements.  In reality, statements made pre-arrest or spontaneously are not suppressed because of a failure to read Miranda rights.  If you were arrested and not read your rights, discuss the implications this could have on your defense with your attorney.

PRELIMINARY HEARING ("PRELIM"):  In felony cases filed by criminal complaint, the case will have a preliminary hearing before proceeding to trial.  If the government can show that there is good cause to hold the defendant to answer to the charges, the defendant will be arraigned for trial.  If the government does not meet its low burden, the case will be dismissed.  Cases can be dismissed at preliminary hearing if the witnesses are unavailable, witnesses are unable to identify defendant, testimony is inconsistent with the charges, police obtained evidence in violation of defendant's Fourth Amendment rights, and more.  Additionally, some charges might be dismissed and others not.  The preliminary hearing is a very important stage, giving the defense a preview of the government's case and witnesses, an opportunity to lock witnesses into sworn testimony, and opportunities to get charges dismissed and/or evidence suppress.

JURY TRIAL:  Defendants charged with misdemeanor and felony offenses are entitled to a trial by jury.  Trial will begin with jury selection and pretrial motions (usually concerning admissibility/relevance of evidence) and jury selection.  After a jury is selected and sworn in, the prosecutor and the defense attorney will have an opportunity to address the jury with an opening statement.  Next, the government will present its evidence by calling witnesses.  The defense will cross examine government witnesses and object to presentation of certain evidence or certain questions.  After the government concludes with its case, the defense may call witnesses to rebut the governments witnesses or

BENCH TRIAL:  A bench trial is a trial where the judge will serve the jury's role as the trier of fact.  This means that there will not be any jury selection.  The judge will make determinations of fact as well as law.  Bench trials are uncommon as both sides must waive their right to a jury, and usually one or both sides would prefer to have a jury decide the case.

FELONY:  Felony charges are the most serious category of charges and are punishable by more than a year in custody.  Most felonies are punishable by up to three years or more, with crimes involving violence and other aggravating factors can be punishable by more time in prison.  Some felony charges include grand theft, drug sales, aggravated assault, extortion, murder, felony dui, rape, child molestation and more.

MISDEMEANOR:  Misdemeanor charges are the less serious criminal charges, punishable usually by either up to six months or 364 days in jail.  Misdemeanor cases are very similar to felony charges in most ways, except for the possible punishment and that misdemeanors do not have a preliminary hearing.  Some common misdemeanor charges include: DUI, domestic violence, drug possession, driving on a suspended license and more.

INFRACTION:  Infractions are non-criminal and a great outcome in misdemeanor cases.  Many traffic violations, possession of small amounts of marijuana and pedestrian offenses like jaywalking are infractions and are punishable only by a fine.  No jail, no probation.  Infractions do not get jury trials.

MOTION:  When a party "moves" to have the court do something (e.g. suppress evidence, dismiss the case, continue the case, etc.), a motion is made by that party's attorney.  Most motions are made in writing, but motions may be made orally as well.

EVIDENCE:  Evidence is a broad term that can apply to anything that tends to prove or disprove something central to a case.  This can include documents, photographs, video, physical evidence, eyewitness testimony, character evidence, and more.  Evidence must be more probative than prejudicial or it may be excluded.  The rules of evidence are complex, but designed to protect the integrity of court proceedings.

HEARSAY:  Hearsay is a term commonly misunderstood by the general public.  Hearsay is an out of court statement, offered in court, to prove the truth of the matter asserted.  For example, the prosecutor cannot call one witness at trial and have that person testify to what another witness said.  Statements made by a party (usually the defendant) are called admissions and may be admitted.  There are many exceptions to the hearsay rule.  Additionally, statements that are being admitted to impeach a witness or show motive or effect on the listener are not being offered "for the truth of the matter asserted" and may therefore be admitted.  This is a complex area of law and specific statements need to be considered for whether they are hearsay or fall within an exception.

  Most criminal (and civil) cases do not proceed to trial.  Instead, most cases end in a plea bargain, where the parties will agree on a disposition, including the charges the defendant will plead to and the punishment to be imposed.  Since a person who loses at trial may be sentenced more harshly, a plea bargain is usually the less risky alternative.  If a plea can be crafted to allow the defendant to keep their job, not be deported, not do jail time, avoid a felony, etc., it may be in the defendant's best interest to enter into a plea bargain.  If the government is not willing to be accommodating during plea negotiations, then the case may proceed to motion hearings, a preliminary hearing and/or trial.  Discuss your main goals and concerns with your attorney and see if you can work out a favorable plea deal.

NO CONTEST:  A "No Contest" (or Nolo Contendere) plea is treated the same as a guilty plea for the purpose of criminal proceedings.  The benefit to a No Contest plea is that the no contest plea cannot be used against the defendant in civil proceedings.  In San Diego, the DA typically will want a "guilty" plea, but if a no contest plea can be beneficial, it might be something worth considering and discussing with your attorney.

PRETRIAL CONFERENCE:  In San Diego, often called a "Status Conference" it is an opportunity for both parties (the defense and the prosecution) to exchange discovery, discuss settlement and if needed to set the case for preliminary hearing, motions and trial.

  Like a pretrial conference, this is an opportunity, early on in the process to settle the case and exchange discovery.

INVESTIGATING OFFICER ("I/O"):  In felony cases, there is usually a designated detective who investigates the case and helps the prosecutor with the case.  This person will usually look for additional evidence and question witnesses.

PROBATION SENTENCE:  In both misdemeanor and felony cases, a person may be sentenced to probation.  In felony cases, a probation sentence means that the defendant will not be sentenced to prison unless they violate probation.

  California felony offenses have a triad of possible punishments (16 months, 2 years or 3 years is the most common).  If the court grants probation, it can elect a term (usually the high term) to suspend (hold over the defendant's head) to motivate the defendant to comply with probation and stay out of trouble.  A person charged with a new offenses or probation violation with a "joint suspension" will have a harder time staying out of prison.

"FOURTH WAIVER":  A common probation term in San Diego probation cases, both felony and misdemeanor.  While most citizens have a right, under the Fourth Amendment, to be free from unreasonable search and seizure, the judge may impose as a condition of probation that the defendant waive this right.  This means that the person will have to submit to a search of their home, vehicle or person whenever requested by probation or any law enforcement officer.

ARRAIGNMENT: The arraignment is almost always the first court date in a criminal case.  The prosecution presents and files the charging document (known as a criminal "complaint").  The defendant is made aware of the charges and enters a plea.  At this stage, the plea will usually be "Not Guilty" and the case will then be set for its next court date.  Additionally, defense counsel will receive the police reports and other evidence that the government has received from the law enforcement agency that investigated the alleged crime.

OWN RECOGNIZANCE RELEASE ("O.R."): While bail is frequently required for a defendant to remain out of custody during the course of a criminal case, the court may also grant a defendant what is known as an "Own Recognizance" or "O.R." release.  This permits the defendant to remain out of custody without having to pay money to the court or a bail bondsman.  Bail is supposed to be to secure a defendant's availability in court.  If the defense can show that the defendant is not a "flight risk" or a danger to the community, then bail may be lowered or an O.R. may be granted.

DISCOVERY:  Discovery is the process by which parties to litigation exchange information and evidence before trial.  In a criminal case, the government must disclose all of its evidence to the defense, and the defense must disclose most of its evidence to the prosecution.  At arraignment, the government will typically give the defense attorney all police reports, lab results and other paperwork relating to the case.  If the defense believes the prosecution or law enforcement agency has in its possession additional evidence, then a "Discovery request" is made.  If the government fails to comply with the discovery request, defense counsel can file a formal motion to compel discovery, and even seek a dismissal of the case or exclusion of evidence on the grounds that the government has failed to comply with the discovery process..

INVESTIGATION:  Investigation is the gathering of evidence.  Both sides will have an opportunity to conduct their own investigation.  Typically the police and DA's office will assign investigators.  The public defender has investigators on its payroll, while most private defense attorneys work with private investigators for this service.  It is important to gather all possible real and testimonial evidence, including identifying possible witnesses, preserving and gathering any video or surveillance footage, etc.

This article provides a brief overview of some of the terms you might encounter in a criminal case, but are in no way a substitution for a real consultation with a criminal defense attorney.  If you or a loved one has been arrested or charged with a crime in San Diego, contact us now for a FREE CONSULTATION. 

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego DUI Lawyer
T: 619-930-9515
By Nicholas Loncar        


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