How to Write About the Legal Process

by Jim Riffel

One of the most frequent categories of questions I see on Internet forums for writers is how the legal system really works, usually in a criminal setting. I’ve covered the courts for over a decade, so maybe it’s just something I notice easily. However it works, I think it’s worth providing a basic criminal court system primer to get you started on your manuscript. At some point, you’ll want to check on specifics in your community and state. What follows applies to state courts in San Diego County, in California.

Photo from the set of The Green Mile

Photo from the set of The Green Mile

Most arrested criminals are booked into jail on suspicion of some sort of offense and have a bail amount assigned according to a “bail schedule,” which lists dollar amounts for each type of crime. If the accused can’t make bail, he stays in jail and the District Attorney’s Office has 72 hours on working days to file charges and bring him into court (if you’re arrested on a Friday morning, your weekend is screwed).

Those who make bail are given a date for their initial court appearance.

An arraignment will be the defendant’s first time in court. Most criminals are visited by a public defender in a courthouse holding tank, where they are advised of the charges against them. The charges are not usually read out loud in open court. The defendant will almost always plead “not guilty,” even when caught red-handed, because the public defender won’t know any of the circumstances about the case. The defense lawyer will probably handle 10 or so defendants that day and is generally assigned to the courtroom itself, not a specific defendant. The judge will set a bail amount and schedule future court dates. If the prosecutor wants a high bail set and the defense attorney objects, that is about the only time the circumstances of the alleged crime are discussed openly in court.

About a week later, there will be a readiness conference before a different judge in a different courtroom. Another public defender, the one actually assigned to the accused, will discuss the case with the judge and prosecutor and usually decide amongst themselves whether the previously set dates for future hearings are realistic. Because of issues with evidence, there can be two or three readiness conferences before the next step…

…which in felony cases is a preliminary hearing. The case will be sent out to still another judge, who will oversee a hearing with witnesses and evidence presented that can last anywhere from 20 minutes to a couple of days. At the end, the judge will decide whether the prosecution has enough evidence to justify sending the defendant to trial. The defense will cross-examine witnesses, but generally does not present its own case. In misdemeanors, the prelim is skipped and the case goes straight to trial.

If a trial is ordered, the defendant will be arraigned again, make another guilty/not guilty plea, and receive a trial date. Sometimes that happens the moment the “prelim” ends. Sometimes, it takes place a week or two later before, yes, still another judge.

Usually, before a trial is held, there will be a couple more readiness conferences. Sometimes at this stage they are called status conferences. Defendants will sometimes agree to plea bargains at readiness conferences, even the ones before preliminary hearings.

Trials can be postponed several times. Before they start, a hearing can be held on pre-trial motions, usually over whether certain evidence will be admissable. Jury selection will begin with a pool of 60-80 candidates for major cases, and can take anywhere from an hour to a few days. The trial itself consists of opening statements from the lawyers, the prosecution witnesses and then the defense witnesses. The prosecution can put on rebuttal witnesses and, if it does, the defense can do the same. Rebuttals are rare. Evidence is followed by closing arguments by the lawyers, after which the jurors go into the little room and make a decision. Trials, from the beginning of jury selection to the verdict, can last from half a day to six months or more. Court officials in downtown San Diego think a trial underway as of this writing might last a whole year, setting a local record.

Sentencing can be set 30 days after a defendant is found guilty. Like everything else, sentencing hearings can be postponed a couple of times, often because required reports from the overworked county Probation Department aren’t quite ready. Sentencing doesn’t end everything, of course. Many defendants choose to appeal and sometimes they win.

It should be pointed out that the yelling and shouting you see in the movies or intense questioning of a witness who breaks down and admits being the real killer at the end of the television hour just about never happens. Judges like orderly proceedings, so lawyers who badger witnesses are quickly admonished. Also, more drama occurs away from a jury than before one. The news media often covers preliminary hearings more thoroughly than trials because that’s the first time the evidence is aired publicly, warts and all. Sometimes what appears to be a huge case upon arrest and arraignment turns out to be not so much at prelim–reality bites.


About Tim Kane

Tim Kane is a writer of fiction.
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