Greg Hill & Associates Home
Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
What Rights Does a Defendant Have in a Misdemeanor?
Before the judge takes the bench in a misdemeanor courtroom, the bailiff will often play a video tape of a judge explaining the rights every defendant has in a misdemeanor case.
For someone who has never been in a criminal court, it is easy to feel overwhelmed by what is stated in the video, usually by a judge dressed in a black robe, who explains certain things with a casualness that belies the profoundly serious rights being discussed.
The Gist of this Article: The most important right, we believe, one has in a misdemeanor is the right to an attorney, as an experienced criminal defense attorney can ensure defendant knows what rights apply and can explain the best way to exercise such rights.
This article is meant to summarize such a video and reduce to writing what is said so that one can comprehend more, appreciate what is said on a deeper level and feel more comfortable in court.
The first right that one is usually advised of is the right to have an attorney at every stage of the proceedings. This means if you want to hire a private attorney (like Greg Hill & Associates), you can ask the judge to continue the arraignment to another date a few weeks later to give you time to do so.
Torrance CourthouseIf you cannot afford counsel of your choice, i.e., a private attorney, you can request that the judge appoint you a public defender from the public defender’s office. The judge will determine if you qualify for the services of the public defender based on your income and assets from a form you will need to submit and sign. If you do make a certain level of money, the judge can order you to pay for the services of a public defender, but only to the extent you can pay such costs. You have a right to a hearing on your ability to pay such fees.
You also have the right to represent yourself, but it is almost always unwise to do so. For example, the judge will not help you defend yourself. The judge will warn you that the prosecutor is a trained prosecutor who will have a significant advantage in skill, training, education, experience and ability. The judge may ask you questions to be sure you are aware of the dangers and disadvantages of representing yourself. If you chose to talk to the prosecutor in order to resolve your case, you thereby give up your right to an attorney.
You have the right to reasonable bail. In some instances, you will be released on your own recognizance with a promise to appear in court whenever ordered. A failure to appear is a misdemeanor and a judge may issue a warrant for your arrest.
You have the right to know the charges against you and have the complaint read to you. You also have the right to reasonable time, not less than one day, to answer the charges, meaning to plea not guilty, guilty, no contest (subject to court approval), former judgment once in jeopardy or not guilty by reason of insanity. If you plead guilty or no contest, you have the right to be sentenced not less than six hours and not more than five days after your plea, unless you agree to be sentenced immediately or at a later time.
You have the right to know the maximum sentence that can be imposed with a conviction. For most misdemeanors, the maximum jail term is six months and a $1,000 fine, plus penalties and assessments. For some misdemeanors, the maximum jail time is one year and a higher fine. The judge usually has discretion to sentence you to less than the highest fine or the maximum time in jail and instead place you on probation.
If you are active-duty military or a veteran of the United States military, you should tell the judge this and a public defender will then brief you on certain programs available only to active-duty military or military veterans with a service-related disability. Our office is very experienced in representing veterans.
If you are not a citizen of the United States, you should consult with an attorney prior to making any decisions and upon request to the judge, the judge should continue your arraignment to allow you time to consult with an immigration attorney and / or knowledgeable criminal defense attorney about your case.
If you answer not guilty to the charges, you have the right to have your trial within 30 days if you are in custody or 45 days if you are not in custody, unless you waive and give up that right. If you waive and give up this right, you still have the right to trial within ten days of a reasonable trial date. However, the judge can determine there is good cause to go beyond these time periods and continue the trial date. The judge will also dismiss all charges against you if trial does not start on or before the date set above and there is no good cause to continue the trial date.
Lastly, the video will usually advise the viewer that one has the right to a jury trial in a misdemeanor case. However, you may give up that right and have a court trial, wherein the judge will hear all the evidence and reach a verdict. During trial, you have the right to: 1) have an attorney present; 2) the right to confront and cross-examine witnesses; 3) the right to subpoena witnesses to appear in court and compel them to testify; 4) the right to testify at your trial (but if you opt to testify, the prosecutor can cross-examine you); and 5) the right to remain silent and not have your silence used against you.
For more information about a misdemeanor in general and certain basic rights every defendant has in a misdemeanor, please click on the following articles:
