California Legal Manual: Demystifying the Legal System
Getting Out of Jail
There are several procedures for getting out of jail while a case is in process. If you are in possession of more than one ounce of marijuana, the police decide whether to give you a citation and release you, or to arrest you and let the judge decide the validity of your medical marijuana claim. Once arrested, the judge will decide whether to offer you bail, bond, or release you on your own recognizance (OR).
Citation: Citing out is a type of release from custody in which you sign a citation, which is a promise to appear in court. It is usually a form that looks like a traffic ticket. Never sign a piece of paper that is an admission of guilt. Read the form closely and make sure you know what you are signing.
Bail: Bail is money you pay to the court, to be forfeited if you don't appear at scheduled hearings. A bail bondsman can put up the money for you, but you have to give the bondsman a percentage of the total bail, which the bondsman keeps as payment. Often, there is a pre-set bail for misdemeanors and lesser felonies that you can pay at the jail without waiting to go before a judge.
Bond: A bond is like bail except that you put up collateral instead of paying money. Collateral is something of value, like a car, a house, or property.
OR: Release on your own recognizance (OR, ROR or PR) is simply your promise to come to court for scheduled hearings without having to put up bond or pay bail. Usually you will only be released on your own recognizance if you can prove that: (1) you are not a danger to the community; and (2) you are not a flight risk or unlikely to return for court appearances.
You are likely to be kept in jail if you:
- Have an outstanding warrant for another charge
- Are already out on OR, bond or bail for another charge
- Are currently on probation or parole
- Have failed to appear for court dates in the past
- Have immigration problems
You can prove you're not a flight risk by organizing documents for your first court appearance that show the judge you have long-term ties to the community and are therefore unlikely to skip town. Assemble as many of the following documents as possible. You need the originals, plus a copy to give the court:
- Lease, rent receipts, utility bills, phone bills (both current bills and old ones to show the time you've been at this residence)
- Employment contract, pay stubs, records of volunteer work
- School ID, school records
- Proof of membership in community organizations or churches
- General character reference letters from landlords, roommates, employers, teachers, clergy
- List of character references with phone numbers
- Letters on doctor's stationery about any medical conditions or appointments that necessitate your release
It would be very difficult for your friends to assemble such materials while you are sitting in jail. It makes more sense for you to put together this packet in advance and keep it in a safe and accessible place. If you are arrested, your friends can bring these papers to your lawyer so that you will have this material in court.
Going To Court
When do I go to court for the first time?
If you are in custody, the authorities are legally supposed to bring you to court within two business days or "as soon as reasonably possible." If you are not being held in jail, your first court date may be anywhere from one week to a month after arrest. Court dates should be written on the citation or release forms.
What happens at the first court appearance?
The first hearing generally involves the appointment of counsel. You indicate who's going to represent you: yourself, a private attorney, or a court-appointed lawyer. Also at the first hearing, you find out the charges against you, and respond by making a demurrer, or entering a plea. This part is called the arraignment. If you've been in jail up until court, the first hearing usually focuses on release issues: bail, bond or release on your own recognizance (OR). This part is called a bail hearing. Even if you're not released the first time, the subject can be brought up at later hearings. The appointment of counsel, arraignment, and bail hearing can sometimes be separate appearances. Many people choose to waive the right to a speedy trial at this time, called "waiving time." This is mainly done to have the most amount of time to plan your defense and build public support.
What are the choices when it's time to enter a plea?
Pleas generally fall into two categories: guilty and not guilty. Normally, people only plead guilty if they've negotiated a plea bargain. If you do not reach or want a plea bargain plead "not guilty" and go to trial.
What happens if I don't show up for a court hearing?
If you miss a scheduled hearing, the judge will usually issue a bench warrant. If an individual with an outstanding bench warrant gets into any kind of trouble, like a traffic violation, s/he is subject to arrest. Judges usually accept extreme excuses for missing a hearing, like funerals or medical emergencies. Conflicts with school or work schedules are not acceptable excuses.
When does the trial happen?
When you do not waive time, trial usually occurs a month or two after arraignment. When time is waived, trial might not begin for many months. In both cases, trials are often preceded by hearings at which written and/or oral "motions" are made and heard.
What goes on at trial?
At trial, you can testify if you want to. You can also put on eye (and ear) witnesses, and possibly witnesses to testify about your good character. In addition, you have the right to cross-examine the witnesses against you, who will probably be law enforcement officers. You also get to make opening and closing arguments.
The judge may try to forbid you from talking about anything political, and even disallow mention of medical marijuana, on the grounds that it would be irrelevant. Lawyers may be able to get around the judge's prohibitions, but there's considerable precedent (published results of earlier trials) supporting the notion that judges can forbid discussion of political matters at trial.
Your lawyer will handle witnesses, make opening and closing arguments, and file motions. All you do is testify. Sometimes, people represent themselves (called pro per or pro se). In these situations, it's useful to have an attorney as advisory counsel or co-counsel, to help with technical legal matters.
You don't necessarily get a jury trial. The alternative is a bench trial, or trial by judge in which the judge hears the evidence and reaches a verdict. The judge will also decide what will be allowed as testimony and evidence. In state court, you must be charged with at least a misdemeanor to get a jury trial. In federal court, you must be charged with an offense that carries a maximum sentence of greater than six months to get a jury trial. This requirement rules out all infractions and most misdemeanors.
The trial ends with the verdict: guilty, not guilty, or a hung jury. If found not guilty, celebrate. If there is a hung jury (the jury couldn't agree on the verdict), then the prosecutor gets to decide whether to retry you or dismiss the case. Prosecutors often give up or offer a really good deal at this point. If you're found guilty, then the judge sentences you. The judge can either sentence you immediately after the verdict or set a separate hearing for sentencing. You may be qualified to appeal this sentence or the original case ruling, so consult with an attorney.
What happens at sentencing?
You can pack the courthouse. You get to make a speech, because you have the right to allocution. This sentencing statement is normally a chance to ask for mercy and explain mitigating factors, but activists often use it as a chance to discuss political matters, especially if they didn't get to speak their minds at trial.
Return of Property
In nearly every case where a patient or caregiver is cited or arrested for medical marijuana, law enforcement will seize the medicine and often other property they feel is connected with the alleged offense. If this happens and you are found not guilty or have your charges dismissed or dropped, you can petition the court for the return of your property. The police typically do not return property without a court order. This requires a patient to file a motion for return of property. ASA has an ongoing return of property campaign and has information on its website to help you file a motion. See Return of Property
If you are certain that the property has been destroyed or is damaged beyond use, you may want to sue the city or county responsible for the property's damage or destruction. In this instance, you would be filing a civil suit. This process can often take years to complete. In order to qualify for filing a civil suit, you must first file a claim form with the appropriate government entity no later than 6 months after the seizure. Once the claim is denied, you then have six months from that date to file the actual civil suit. It may be helpful to have the claim form and, later, the civil suit complaint drafted by an attorney, but that is not necessary.
Court Support and Organizing During Trials
Medical cannabis patients are being arrested, facing trial, and going to jail nationwide. As advocates, it is our job to highlight these injustices in the courts.
What is court support?
Court support is a group of tactics used to support a patient or provider while s/he is going through the legal system. Listed below are some examples of tools that can be used for court support. You may want to use some or all of them depending on the situation. Remember the health and safety of the defendant must ALWAYS be your first priority.
- Get all the facts straight: Before you contact the press, make sure you have a clear account of what has happened. Get contact numbers for the defendant and anyone s/he would like to speak on his/her behalf: his/her attorney, family members, local officials, doctors etc.
- Contact local media about case: Either immediately following the raid or a week before a hearing, send a press advisory to local press outlets.
- Press Release: Before a court date, send a press release at least 24 hours in advance.
- Backgrounder: Medical cannabis trials can be very confusing. It is a good idea to have a one-page handout to give to the press that explains the specifics of the case and information about state law and about the state-federal conflict.
- Press Conferences: Press conferences should only be between 10-30 minutes long. Having a MC can help keep things moving. Make sure everyone knows the speakers' order, only have a press conference when there is something NEW to say, make sure someone helps the press set up and get all the interviews they need, and don't forget signs and visuals!
In the courtroom:
Fill the courtroom with supporters...
- Be respectful. It is often hard to sit and watch injustices unfold in front of you, but interruptions in the courtroom can cause a judge to take his anger out on the defendant.
- Dress for court. Dress like it is YOU that is on the stand, since your appearance reflects on the defendant.
TIP: No need to draw attention to yourself, just all stand up and leave with the defendant.
Outside the courtroom:
- Protests and rallies: Get creative! Street theater, easy-to-read signs, marches, pickets, and large puppets can deliver a complex message to the public and to the press.
CAUTION: Be aware of laws concerning Jury tampering. Do not hand out information about the defendant once jury selection begins or during the trial.
Going through the legal system can be financially and emotionally draining. To build a strong, vibrant movement, we must make sure we do not let anyone slip through the cracks. Sometimes people need an ear, sometimes a ride to court, or childcare for their children. Don't be afraid to reach out and ask what they need. It is important to only commit to what is viable for you.
When should you use court support?
Court support should be used anytime a medical cannabis patient or caregiver is arrested. A defendant or even your community may decide that a specific case may be too cloudy for the local political landscape, and media may do more harm than good. If this is the case, you can still do everything else but contact the media (protests, presence in the court, emotional support etc.).
Why do court support?
- Organizing opportunity: Court cases create a crisis in a community and court support can give quiet supporters an opportunity to become active supporters.
- Community Awareness: Court cases create an opportunity to educate your community, local media, and legislators about the injustices surrounding medical cannabis.
- Bring the issue home: Court cases provide the opportunity to localize and put human faces on the medical cannabis issue.
- The fate of the defendant: Simply, judges and prosecutors are less likely to screw people in public.
How do you find cases to support?
- Keep an eye in the paper for local medical cannabis busts
- Stay in touch with people in the medical cannabis community
Disclaimer: Medical marijuana law in California is continually evolving and medical marijuana remains illegal under federal law. If something in this August 2009 manual appears out of date or inaccurate, please consult with an attorney or contact ASA at 510-251-1856 or 1-888-929-4367.