What is a 1382 motion?

What is a Serna motion? A “Serna motion” is a motion to dismiss a criminal case because the defendant was denied his / her constitutional right to a speedy trial. A defense counsel brings the motion in open court when the D.A. or court fails to adhere to the timing requirements in Penal Code 1382.

How long after preliminary hearing is trial?

(See section 1382 of the Penal Code.) The prosecutor must file the Information within 15 days of the date the defendant was “held to answer” at the preliminary hearing. The trial must start within 60 days of the arraignment on the Information. The defendant can “waive” (give up) the right to a speedy trial.

What is a vacated preliminary hearing?

A defendant may decide, after consulting with counsel, to waive the preliminary hearing. The preliminary hearing provides a preview of the prosecution’s case, including evidence and potentially witness testimony. … Waiving this hearing allows the case to proceed to trial more quickly (though not immediately).

What is a Serna motion?

A “Serna motion” is a legal motion to dismiss misdemeanor or felony charges because the defendant was denied their constitutional right to a speedy trial, which violates California’s fast and speedy trial law.

What happens if you are not arraigned within 72 hours in California?

If charges are not filed after the 72 hour period following your arrest, you will be released, but the state still reserves the right to file charges later, as long as they file charges within the statute of limitations.

What comes after a preliminary hearing?

After a preliminary hearing, prosecutors and defense attorneys sometimes agree to “submit the case on the record.” When this happens, a judge (not a jury) will review the preliminary hearing transcript to determine the defendant’s guilt.

What’s the difference between a pre preliminary hearing and a preliminary hearing?

At a trial, a jury must find the defendant guilty beyond a reasonable doubt— the highest legal standard recognized by law. Conversely, at a preliminary hearing, the judge only has to have a reasonable suspicion as to the defendant’s guilt to hold him or her to answer for the charges at trial.

What comes first preliminary hearing or arraignment?

An arraignment is usually the first court hearing in a criminal case. At an arraignment hearing, the accused enters a plea (guilty, not guilty or no contest), the issue of bail and release is determined, and a future court date is set – usually for the pretrial or, in a felony case, the preliminary hearing.

Is a preliminary hearing good or bad?

From a strategic standpoint, the Preliminary Hearing is a very important event for the defense. It is typically your attorney’s first opportunity to meet with police and prosecutors to discuss your case and get a better understanding of what the prosecution is thinking in terms of resolving a case.

What happens at the end of a preliminary hearing?

Once the preliminary hearing is over, the case is ready to head to trial. The prosecution can move forward with its case against you. The court will likely get your case on the docket within a few days of your preliminary hearing, although the actual trial date may be several weeks or even months down the road.

What exactly is being determined in preliminary investigation?

A preliminary investigation is an inquiry or proceeding to determine whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial.

Who attends a preliminary hearing?

Other than in exceptional cases, the representatives from both parties must be in attendance at a preliminary hearing. Where the Tribunal need to decide a preliminary issue, witnesses may also need to attend.

How do you win a preliminary hearing?

To “win,” the prosecutor must convince the judge that probable cause exists to show the defendant committed the charged crime(s) and the case should proceed to trial. Careful prosecutors don’t bring cases that might not stand up to the judge’s scrutiny.

What is the standard of proof at a preliminary hearing?

For a preliminary hearing, the judge uses the “probable cause” legal standard, deciding whether the government has produced enough evidence to convince the jury that a crime was committed and that the defendant committed the alleged crime.

Are preliminary hearings private?

Preliminary hearings shall be conducted in private, except that where the hearing involves a determination under rule 53(1)(b) or (c), any part of the hearing relating to such a determination shall be in public (subject to rules 50 and 94) and the Tribunal may direct that the entirety of the hearing be in public.”

What is purpose of preliminary hearing?

The purpose of a preliminary hearing is for a judge to determine if there is probable cause that a criminal offense has occurred and that there is a reasonable suspicion that you have committed it. Preliminary hearings are rarely granted in the state court system.

Why is a preliminary hearing important?

Prelims, as they are often known, provide an important opportunity for an accused person’s attorney to formally review the charges, assess the evidence available, speak with the police, and record testimony from the actual hearing. … The preliminary hearing is not a determination of guilt or innocence.

What happens at a preliminary hearing Employment Tribunal?

Preliminary hearings are most commonly used to allow the Employment Tribunal to identify the issues in the case, and set case management directions to enable the parties to get the case ready for the final hearing.