The Process in a Misdemeanor Case

Published: 07th June 2006
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The Process in a Misdemeanor Case


The arraignment is the defendant's first court hearing after the arrest, booking, and initial bail phases of the criminal process have taken place. This is usually the first opportunity for the defendant to hear the charges pending against him and provides the defendant the opportunity to plead to those charges. A prompt arraignment is related to the Constitutional safeguard of providing a "speedy trial." The arraignment date will be dependant on several factors. The defendant's custodial status is the most important factor.

If the defendant is in custody, arraignment must take place within 48 hours, not including weekends and court holidays after the arrest. If the defendant was arrested without a warrant and has not yet been released, the arraignment is usually combined with a probable cause determination. This determination must be made by a magistrate as soon as reasonably feasible but no later than 48 hours after arrest; weekends and holidays may not be excluded from the 48 hours.

If the defendant is out of custody, then they must be arraigned at least 10 calendar days after arrest unless the defendant consents to earlier date. However, for out of custody defendants arraigned on a misdemeanor complaint, the prosecutor has 25 days after the misdemeanor citation is issued to file a formal complaint. There is no statutory deadline for arraignment. Thus, for most misdemeanor citations issued for DUI cases, the arraignment may be 30-45 days in the future.

What normally happens at an arraignment is that the person charged with a crime is called before a criminal court judge. The judge will follow this basic procedure:

 The judge will read the criminal charge or charges against the person, who is referred to as the "defendant"

 The Judge will ask the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney

 The Judge will ask the defendant to answer, meaning "plead", to the criminal charges. The defendant has three choices: "guilty," "not guilty," or "no contest"

 The Judge will then decide whether to alter the bail amount or to release the defendant on their own recognizance

 The Judge will announce the dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

Pre-Trial Conference

The purpose of a pre-trial conference is to allow the judge, the prosecuting attorney, and the defendant's lawyer to discuss the case, and hopefully reach a settlement. This is the time when the strengths and weaknesses in the case are first brought out and where the prosecutor and defense lawyer will negotiate on a possible settlement. A pre-trial conference is normally set two to three weeks after the arraignment. Where a negotiated settlement can be reached, the defendant will enter a plea, such as guilty or nolo contendere, or the matter will be dismissed. If the defendant still pleads "not guilty," the judge will set a court date for trial.

During this period a number of pre-trial motions are sent between the prosecutor and the defense. Types of pre-trial motions, also called "motions in limine" are discovery motions, suppression motions, and other types of motions, like a Pitchess motion (a motion to reveal the personnel records of law enforcement officers, where there is an allegation of the use of excessive force or racial bias).


A trial may be conducted as a "bench trial" where the judge alone will hear and decide the outcome in the case, or a jury trial, where a person's guilt or innocence is decided by a jury of 12. It is a constitutional right to be judged by a jury of one's peers, although the actual ethnic and gender make-up of the panel may not really be the same as the defendant. A jury is made up of people in a certain geographic area relative to the courthouse. The courthouse where the case is heard is in the same geographic area where the crime was committed.

Depending on what type of crime it is, the length of the trial will vary. The basic structure of the trial is as follows:

 Jury Selection: this process can take several days. Both the prosecutor and defense attorney are given the opportunity to "voir dire" the prospective jurors to determine their fitness for trial. Either side may move to exclude a juror for cause, such as bias, or exclude them based on a limited number of "peremptory" challenges.

 Opening Statement: Where both the prosecutor and defense attorney are allowed to give their "version" of the case to the jury.

 Direct Examination: Where both sides are allowed to call witnesses for their case.

 Cross-Examination: Where the side that didn't call that witness are allowed to question the witness. The major difference between cross and direct examination is that in cross-examination, the lawyer is allowed to ask "leading" questions.

 Closing Argument: Where both the prosecutor and the defense attorney are allowed to "sum up" their respective cases, highlighting the evidence that favors their case. The closing argument will often conclude with the lawyer asking the jury to find for their case.

 Jury Instructions: The judge will advise the jury how to interpret the evidence in the case, based on preset jury instructions, normally prepared "CALJIC" instructions.

 Jury Deliberations: Where the jury is first allowed to discuss the case among themselves, deciding the facts of the case within the framework of the jury instructions.


The judge decides how to sentence the defendant, not the jury. In a misdemeanor case the judge may sentence the defendant to county jail, impose fines, and may or may not impose a term of probation.

If you or someone you care about has been charged with a crime, whether it is a felony offense or a misdemeanor, it is vital that effective legal representation be obtained. Please contact the criminal defense lawyers at The Kavinoky Law Firm for the unparalleled service in any criminal defense case.

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