Lets say that you are involved in a fight. When the LAPD arrive at the scene, you inform them that this was more of a pushing contest. Nevertheless, the police determine that you are at fault. You are arrested, booked, and told to appear in court on a certain date. When you do appear in the Los Angeles Superior Court you do not have an attorney, and yet, after the judge reads you the charges, he asks you to enter a plea: “guilty,” “not guilty,” or “no contest.” What do you do?
Before I answer this question let me tell you a little about the criminal process in California. There are two types of offenses. A felony is a crime punishable by a minimum of one year in jail, or $1,000.00 fine, or both. A misdemeanor, which is our example above, is a crime punishable by a maximum of one year in jail, or $1,000.00 fine, or both. In misdemeanor proceedings there are usually four stages: (1) arraignment, (2) pre-trial hearing, (3) trial, and (4) sentencing.
At the arraignment, you are presented with the charges and the evidence against you. You usually enter a plea of “not guilty” and set a date for a pre-trial hearing. At pre-trial you inform the court whether you are ready for trial or whether you require more time to prepare a defense, obtain tangible evidence, or question witnesses. The third and usually the last stage is the trial itself. At trial the prosecutor will attempt to prove that you are guilty beyond a reasonable doubt. If you are found guilty, the court will usually sentence you right away unless you request a continuance of the sentencing date, creating a fourth stage in these proceedings.
Let’s go back to our example. You are in court. The judge tells you to enter a plea and then he’ll allow you to find an attorney. If you ever find yourself in this situation please do yourself two very necessary favors: (1) ask for a continuance and (2) immediately go hire an attorney.
You can probably guess why you would need an attorney. Three years of law school and years of practical experience allow an attorney to determine whether the prosecutor has enough evidence to convict you, or whether your attorney can get an acquittal via trial or a dismissal via a motion to suppress evidence, for example. This is something a lay person will find very difficult to do without the proper training. It all boils down to experience.
An attorney also has an advantage in trying to negotiate a better settlement agreement with the prosecutor, should you decide not to contest the charges. This is so for two reasons. First, the attorney has no personal stake in the case and therefore can make an unbiased and clear assessment of the case, something that rarely happens when you represent yourself. Second, a prosecutor will be more receptive to the requests of an attorney, a colleague, as opposed to your requests if you represent yourself. Therefore, I highly recommend hiring an attorney, even if you will need to spend money. Your investment may just yield you a little bit of freedom.
But why a continuance, you may ask? Why can’t you simply enter a plea of not guilty, as many courts tell you to do, and then go find an attorney? Here’s why:
At the arraignment you have several choices. You can enter a plea of “not guilty,” in which case the prosecutor will have to prove your guilt at trial. You can enter a plea of “guilty,” or “no contest,” in which case you give up your constitutional right to a trial and move on to sentencing right away. Another option open to you is to file a demurrer, a procedural device that challenges the validity of the complaint and may in some cases get you a dismissal.
After you are arrested and booked by the police your file and all of the evidence against you are shipped to the prosecutor who determines whether you have violated one or more criminal statutes. The prosecutor then prepares a complaint against you, which sets out the laws violated and the dates of these violations.
If the complaint is legally defective, a determination that only a trained lawyer can make, you will have the option of demurring to the complaint. If you are right, and the complaint is defective, the prosecutor will either amend the complaint to cure the defect, or dismiss the case if there is no possible way to modify it. Keep in mind, however, that if you enter a plea you automatically give up your right to demur to the complaint.
Recently I had successfully demurred to a criminal complaint against one of my clients. The demurrer was filed prior to the entry of plea. I argued that the defect in the complaint was not something the prosecutor could fix. The judge agreed with me. The complaint was dismissed. Case closed.
My advice therefore is this: if you do not have an attorney at the arraignment, continue this hearing and get one. Do not under any circumstances enter a plea without first obtaining the advice of an attorney.