Areas of Practice
Los Angeles Criminal Defense - What can I expect at my trial?
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Q: What is the “right to a speedy trial”?
A: A defendant has a constitutional right to a speedy trial. That usually applies to people in custody. It applies to out of custody also but a person has a right to a speedy trial. On a misdemeanor that means they have a right to a trial within 45 days. If it’s a felony they have a right to a preliminary hearing within 10 days and then after if they are held to answer on that charge at a preliminary hearing they have a right to an arraignment in 14 days and then a trial within 60 days after that. These are very specific constitutionally set time periods. Often within the process time is waived which is when people give up their speedy trial rights to resolve the case or give their attorneys more time to conduct interviews or get evidence.
Q: What is the right to a trial by a “jury of my peers”?
A: A jury of your peers are members of your community. It does not entitle you to people who are the same sex, the same race, the same socio-economic status. They are usually provided by the voter roles or by the drivers license roles. It’s 10 people from the community and that is a jury of your peers.
Q: How is the location of my trial determined?
A: The location of your trial is usually determined by where the crime was committed and in what jurisdiction it’s being charged. So, if it’s being charged with the state or county authorities it will be charged within the county you are in and often those are just randomly selected by what court you are closest to and what police station they file at.
Q: Can I have the location of my trial moved?
A: Certain cases can be moved for publicity reasons or because in a small community the crime could be so outrageous that it would be impossible to have a fair trial there. Otherwise, the answer is generally no.
Q: What determines whether I receive a judge or a jury trial?
A: For any offense where the punishment is incarceration, either a misdemeanor or a felony, you’re entitled to a jury trial by 12 people from the community. Usually, almost always, if you’re going to have a trial you would want a jury trial because the prosecution has to get all 12 people to agree and it’s usually much easier for the defense to knock out just one juror and has a 1 in 12 chance than a judge who has seen everything.
Q: How are jurors chosen?
A: Jurors are usually chosen by the voter roles or by the driver’s license roles. They’re just picked from the community, letters are sent out and they are summoned for jury service.
Q: What can I do if I don’t like certain jurors?
A: You and your attorney have a certain amount of what are called peremptory challenges. You can always excuse a juror for cause which means that the juror is actually biased and you’re able to prove through the questions of that juror that they are actually biased. You also have a certain amount of peremptory challenges where you can just remove a juror just because you don’t like the way they look, the way they sit but it can’t be for an illegal reason based on race, religion, sexual orientation, nationality, things like that.
Q: What can I do if I don’t like the judge?
A: Generally, you’re stuck with the judge. At the very first appearance you can make a motion to exclude the judge for actual biased reasons if you believe the judge is biased or the attorney believes the judge is biased you can have the judge removed or disqualified. It’s called “papering” the judge. Although usually it’s not a good idea because just like any other real world all of the judges are all judges in the same building and you’re just going to be sent to the guy down the hall who’s going to be pissed off that he got sent somebody else’s work. Generally not a good idea unless the judge is actually biased.
Q: Can I decide to change my attorney in the midst of a trial?
A: The general answer is no. Does it happen? Yes. There is something called a Masrden Motion which the defendant can raise. The judge clears the court room of all prosecutors and all the public. It’s a closed hearing where the judge has to determine whether the attorney did something wrong or didn’t do something they were supposed to do, an actual conflict arose.
Q: What is the “charge to the jury”?
A: The jury is charged with what we call ____ which means to seek the truth. The jury is charged with finding the verdict. They are ready jury instructions, they are a very specific set of laws and rules which explains the elements of a crime in supposedly common phrases. The jury is what’s called the “finder of fact”. They are to determine fact based on the evidence presented and based on witnesses that testify, whether they believe that testimony. They weigh the evidence and they come out with a verdict.
Q: Can jurors take notes during the trial?
A: Yes. Jurors are allowed and encouraged to take notes. What they are not allowed to do is discuss the case with each other or anyone else during the trial. They’re also not allowed to do any independent research. They’re not allowed to go look at the scene. They’re not allowed to do internet or any book research outside of what the judge charges them to do.
Q: Can jurors ask to see evidence or transcripts?
A: Yes. Jurors are generally allowed to see evidence and they’re not allowed to see transcripts but what they do is they have what’s called a “read back”. So, say there was a particular witness. Let’s say it is a medical expert, a doctor testifying and they want to hear the cross-examination of the doctor. What will happen is the court reporter that’s taken notes will go back into the jury room and will read that portion of the testimony to the jurors but they’re not allowed generally to look at transcripts. They are allowed to review evidence depending on what the evidence is.
Q: Can the judge take over the trial from the jury?
A: In certain instances the judge could take the case away from the jury but would generally find a mistrial. It would be very, very rare for the judge to do that. Sometimes the judge can find that the jury’s verdict is not supported by facts or law and the judge can change the verdict. Also, done in very rare circumstances because the policy of having juries decide is considered so sacred and high.
Q: Will I have the chance to speak in court?
A: It depends. You do have a right to remain silent. You generally would have a right to testify in your own defense if you want to during the trial. Other than that you generally would have to speak through your attorney or the judge would have to give you permission but you do have a right to testifying in your own defense. You can demand to take the stand but your attorney cannot willingly present perjured testimony. So, if your attorney knows you’re going to go up there and lie all he can do is ask you to give is a narrative and cannot ask you specific questions.
Q: Can I demand that a witness take a polygraph test?
A: No. Polygraph tests are generally not admissible. What polygraph tests are…they’re often used as an interrogation technique. So, I’m a police officer. I say to you, witness or defendant, “will you take a polygraph test?”. Your answer to that in and of itself will tell me a lot. If you say “No, I won’t” as a police officer I might say “This person’s lying or has something to hide”. You can’t force somebody to take them. It’s a valuable interrogation technique in and of itself, not for what the polygraph says. Very common myth.
Q: Can I hear what all the witnesses say?
A: You have a constitutional right to hear all of the evidence and witnesses against you and to cross-examine them through your attorney. So, anything that is said in court, the witnesses have to say it on the stand against you.
Q: When can I be held in contempt?
A: You can be held in contempt for…first of all, if you’re a defendant, they can never force you to testify or say anything. You have a right to remain silent. If you’re disruptive, if the judge tells an attorney to be back at a certain time or refrain to do or not do something. It’s rarely used but it’s a tool to keep order in the courtroom.
Q: What is the “burden of proof”?
A: A defendant in a criminal action is entitled to be proven beyond a reasonable doubt that guilt exists. If a reasonable doubt exists, even if guilt is proven, then the defendant is entitled to a verdict of “Not Guilty”.
Q: How does the “burden of proof” differ between criminal and civil trials?
A: The difference between the “burden of proof” in a criminal and a civil trial is substantial. In a criminal trial it is beyond a reasonable doubt which is like 98%. In a civil trial it is usually what they call “preponderance of the evidence” which means more than 50% and another standard used in some civil trials is “clear and convincing” which means exactly 50%. So very, very different burden, very different remedies. Money versus incarceration.
Q: What is a mistrial?
A: If the jury hangs or cannot reach up a verdict the judge declares a mistrial. If there is some other procedural misstep or misconduct within the process the judge can declare a mistrial. It means the trial is aborted and depending on the circumstances it’s either over or they have to do the trial again.
Q: What is an acquittal?
A: An acquittal is when a jury of 12 peers finds you “Not Guilty” then you are acquitted. All 12 have to agree, then an acquittal and all charges are dismissed.
Q: Can I choose to have my defense attorney present his case first?
A: Prosecutor always goes first because they have the burden. The defense doesn’t have to prove anything. Once the prosecution has presented their case the defense may decide that nothing further needs to be said. The prosecutor hasn’t proven his case. You can ask the judge whether there is enough to go to the jury. The judge then decides. Then the defense may or may not present a defense, it usually does. Sometimes that may be the defendant testifying. Often it will be other witnesses.
Q: What does “deliberation” mean?
A: Deliberation is supposed to be a meaningful communication between and among the jurors of the jury instructions which are charged and read by the judge to the jury and the evidence in the case for a determination of the facts for guilt or innocence. There is supposed to be meaningful communication and deliberation among the jurors. So, a juror is not supposed to say “I’ve made up my mind, I’m not going to discuss it.”. They’re supposed to be open-minded until the end of trial and discuss amongst all the jurors the evidence and then the jurors can vote.
Q: What rules do juries have to follow when returning a verdict?
A: Jurors are supposed to follow the law. They’re supposed to apply the evidence to the law, meaningfully deliberate amongst themselves and return a verdict. What they’re not supposed to do is what they call “jury nullification” but it happens. It’s where you feel that this case is so outrageous and even though we believe that this person did it, we’re not going to find him guilty. What they’re also not supposed to do is base a verdict on prejudice or the fact that the person looks guilty. They’re supposed to follow the law. They’re not supposed to do any independent investigation. They’re not supposed to talk to anybody. They’re not supposed to be biased. It’s a very high duty that’s charged to jurors and those jurors take their duties very, very seriously.
Q: What happens if the jury cannot agree on a verdict?
A: If the jurors cannot agree they generally come out in front of the judge and say “We can’t agree.” and then the judge who is really frustrated because they’ve spent a lot of time and effort will say “Look, try to deliberate and try to agree on this” and the judge will say “Is there anything that will help you?”, “Would you like some read back of testimony?”, “Would you like to see some more evidence that could help you agree?”. If the jury goes back and then says they are hopelessly deadlocked, if they cannot agree on a verdict, the judge will generally issue a mistrial. The judge will often pull the jurors to see what the deadlock is. If it’s 6/6 or 7/4 or if there’s just 1 hold out. So, for instance if there’s just 1 hold out for “Not Guilty” and 11 saying “Guilty” the prosecutor will probably retry the case. If it’s the opposite then the prosecutor may not retry the case.
Q: When will the judge declare a mistrial?
A: When he’s determined either that the jury is hopelessly deadlocked or some procedural or ethical violation has occurred and the defendant cannot get a fair trial or just because of circumstances they can’t proceed.