Other Criminal Defense FAQs
What is the chronology of the arrest process?
When the police arrest someone, a specific series of events follows. While the suspect is in custody, police must follow specific legal procedures.
An arrest occurs when police take you into custody or is complete the moment you, as the suspect, are no longer free to walk away from the arresting officer.
In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona, that individuals who are under arrest for suspicion of having committed a crime have certain rights that must be explained to them before any questioning may occur. The rights are designed to protect your right to be free from self-incrimination under the Fifth Amendment to the U.S. Constitution. There are five different rights, known as the “Miranda Rights”:
- You have the right to remain silent and to refuse to answer questions.
- Anything you do say may be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
- If you decide to answer questions now without an attorney present, you will still have the right to stop answering questions at any time, and refuse to answer any additional questions until you talk to an attorney.
Note: Miranda rights must only be read when an individual is in police custody and is under interrogation. Therefore, if the police stop you to give you a traffic ticket, and you start explaining to them why you were speeding, you cannot later protest that you were not read your Miranda rights. While the police may have been “interrogating” you in a certain sense, you were not in police custody unless your freedom of action was curtailed to a degree associated with formal arrest; see your state laws for a definition of police conduct that would be associated with formal arrest.
If you are stopped by the police, they may frisk you by performing a “pat-down” of your outer clothing in order to determine if you are concealing a weapon. Later, after your arrest, they may perform a full-body search of your person and immediate surroundings to ensure that you do not have any weapons, stolen items, contraband, or evidence of a crime. If the police take possession of your car, it may be searched as well.
In many jurisdictions, you have the right to make a telephone call, or calls, once you are placed into custody. In some states, you are only allowed to call someone in order to secure a lawyer or to arrange for bail, although you may be able to call a family member or friend to help you make those arrangements. Generally, you are not entitled to make a telephone call until after you have been booked.
The police may take any personal property or money that you have with you and put it in a safe place after performing an inventory. The police will ask you to sign the inventory and, after reviewing it, you should do so, if you agree with the contents of the inventory.
Once you are arrested, you will be booked. During the booking procedure the police will ask you for basic information about yourself (such as your address and birth date). You will also be fingerprinted and photographed. You may also be asked to participate in a line-up or give a handwriting sample.
If you are detained but not booked within a reasonable period of time (usually several hours, or overnight) your attorney may go to a judge and obtain a writ of habeas corpus. A writ of habeas corpus is an order issued by the court instructing the police to bring you before the court so that a judge may decide if you are being lawfully held.
Once you are arrested by the police, the information will be provided to the appropriate prosecutor’s office. The prosecutor will then review the information before making an independent decision as to what charges should be filed.
Note: If you have been arrested for a felony, a prosecutor may enlist the services of a grand jury to review the available information in order to determine with what crimes you should be charged. If you are placed in custody, you have the right to appear in court, hear the charges filed against you, and enter a plea within a reasonable amount of time. This usually means that the prosecutor must decide within seventy-two hours which charges, if any, will be filed. A prosecutor is not bound by the initial charge decision, but may later change the crimes with which you will be charged once more evidence is obtained.
Note: The required time in which a prosecutor must file an initial charge varies from jurisdiction to jurisdiction. While many state laws require the decision to be made within seventy-two hours, other states, such as California, require that the decision be made within forty-eight hours after the suspect is taken into custody. You will have an appearance in court called an arraignment at which point the charges against you will be read and you will be asked whether you plead guilty or not guilty.
Note: A third possible type of response to an indictment is that of “nolo contendere” or “no contest.” Nolo contendere is not strictly a plea, but means that you do not contest the charges made by the government. The plea of nolo contendere cannot be used in other aspects of the criminal trial as an admission of guilt, but can be used only in this phase as an implied confession of the specific offense charged and an admission of the facts stated in the indictment. A plea of nolo contendere is only accepted by the court if the judge feels that it is a voluntarily and well-informed plea. If you are placed in jail, you may be able to get out prior to your trial if you “post bail.”
Bail is a court-determined sum of money that you pay to the court in order to ensure that you will appear in court when told to do so. If you do appear as required, the bail will be refunded to you once the case against you is concluded. If you do not show up or flee the jurisdiction, the court keeps the money and can issue a warrant for your arrest.
Bail may be paid in cash or in cash equivalent. You may also be allowed, depending upon the circumstances, to post a bond. A bond is a guarantee of payment of the full bail amount should the need arise. In other situations, you may be allowed to be “released on one’s own recognizance.” This means that the payment of bail is waived on condition that you appear in court when required. This is generally used in crimes that are minor in nature or where the judge is of the opinion that you are a trustworthy individual who is unlikely to flee the jurisdiction.
Not every arrested individual is entitled to bail. In particularly heinous crimes, where the defendant is a flight risk, or when the court is concerned that the defendant may harm members of the public, bail may be denied and the defendant will be kept in jail as a “pre-trial detainee.” You may also be considered a “pre-trial detainee” if you are unable to post bail for your release.
The judge is responsible for setting your bail. In many jurisdictions, there is a pre-set schedule listing the bail amounts for particular crimes. In other situations, bail may be determined on a case-by-case basis. The Eighth Amendment to the U.S Constitution requires that bail not be excessive.
How will my sentence be decided?
As you can understand, the sentence you get depends greatly on the individual circumstances of your case. Probably the three greatest factors the judge will look at when deciding your sentence are the type of crime you have been charged with, the statutory recommendations or sentencing guidelines for the charge, and your criminal history. Sentencing comes in four general categories: fines, community service, probation and jail or prison time.
After you are found guilty, a judge will first look at the sentencing guidelines or the crime statute itself to determine the recommended sentence. The basic difference between a misdemeanor and a felony lies in the sentencing: A misdemeanor usually carries six months or less of jail time, while a felony will generally carry more than six months of prison time as a recommended sentence. While judges cannot adhere to sentencing guidelines or statutory recommendations without considering other factors, they are often required to provide good reason for a deviation either upward (more severe) or downward (less severe) from the sentencing guidelines.
Nearly every state now has mandatory minimums for certain types of crimes, mostly those involving drugs and/or firearms. In these cases, no matter what the extenuating circumstances may be, a judge has no choice but to sentence a defendant as the law requires. Similarly, there are often mandatory minimum sentences for people who have been convicted of their third felony-level crime. This type of law is generally known as the “three strikes” rule, and rests on the assumption that people who repeatedly commit serious crimes should receive stiffer penalties.
There are mitigating factors that a judge will consider when determining your sentence. Working in your favor may be the fact that you have no history of prior convictions, that you were merely an accessory to a crime, or that no one was (or was likely to have been) injured. Alternatively, judges generally will come down harder on someone who has a list of prior convictions, has used a dangerous weapon during the commission of the crime, or has intended to hurt someone.
Having a good attorney is crucial in any criminal proceeding. He or she will be able to work with the prosecutor and present evidence to a judge in an effort to get you the least severe sentence possible, given your circumstances.
If the police pull me over for a traffic offense, can they search my car and arrest me?
When it comes to cars and their drivers, the police have a quite a bit of latitude in what they can do. It is perfectly legal for them to pull you over for a broken taillight – even if the real reason for making the stop is because the police believe something else is going on. As long as an officer can make a plausible argument to a judge that he believed that you were in violation of some traffic law, he or she can pull you over.
Once the police pull you over, they can search for and seize anything in plain view. This means if you have an open bottle of alcohol lying on the back seat, it is fair game for the police. If police have probable cause to believe you have been involved in criminal activity, including drunk driving, they can arrest you without a warrant. After you’ve been arrested, the police can conduct a full and legal search of your car and any belongings found in your car.
No matter how minor the alleged violation, the police can legally require you and your passengers to get out of the car. While they can’t search your car unless they have probable cause to believe there is criminal activity afoot, officers can do a brief pat down of you or any passenger if they have a only a reasonable suspicion that they might be in danger. Law enforcement can also have a trained dog sniff around your car for contraband without belief that something is wrong, and if the dog finds something, it can be used against you in court.
It is always a good idea to be polite and cooperative in these situations, even if you feel you’re being unfairly treated. If you have been stopped, you must produce a valid driver’s license and, possibly, proof of insurance; failure to do so carries its own penalty. You do not, however, have to answer any questions the police ask you, as you are always protected by your Fifth Amendment right against self-incrimination.
If you feel you have been treated unfairly during a traffic stop, an experienced attorney can help you determine whether the police have acted illegally and, if so, what your remedy might be.
Should I testify at a trial that I acted in self-defense?
Every defendant in a criminal trial has the right to testify or not to testify, and whether or not you take the stand in your own defense is a decision to be made between you and your lawyer. While it may be surprising, experienced attorneys often encourage their clients not to take the stand and testify. Even if you want to tell your side of the story to a judge and jury, it is not always the best way to win your case. Getting on the stand opens you up to intense questioning by the prosecution; depending on your criminal history and your ability to stay cool under pressure, such scrutiny can sometimes hurt your case rather than help it. It’s your lawyer’s job to poke holes in the prosecution’s case against you, and a good attorney can sometimes do this effectively without putting you on the stand.
Often, people on trial are nervous that not testifying in their own defense will make them look guilty, but the judge and jury are legally prohibited from taking a defendant’s choice not to testify into account when deciding his or her guilt. Along those same lines, the prosecution is prohibited from making any reference to the defendant’s choice not to testify during the course of the trial. Many defendants believe that they acted in self-defense and want to testify to that fact in court. To claim self-defense, you first have to admit that you did, in fact, commit the crime you are being accused of. If you have been accused of hitting someone, you have to admit that you did hit him or her, but that you did so in a legally justified manner. For a violent act to be legally justified, you, as the defendant, have to have a reasonable belief that the alleged victim was intending to cause you imminent and serious bodily harm when you committed the crime. Even if you are the first one to strike, you can still argue that you believed your victim had put you in danger of imminent bodily harm.
Another important component to self-defense is proving that you used reasonable force. This means that the amount of force you used must be proportionate to the amount of force the alleged victim used or would have used against you. If you used more force than was necessary to protect yourself, even if you were in fear for your safety, you can still be considered guilty of a crime. Whether or not claiming self-defense is the best strategy for you is something a good lawyer can help you decide.
When do the police have to read me my rights?
Your “rights,” otherwise known as the Miranda warnings, are a list of statements that law enforcement must recite to you before they can conduct a custodial interrogation. The Miranda warnings exist to protect your Fifth Amendment right against self-incrimination. If you understand these rights before you talk to the police, the legal theory goes, anything you say after that will be voluntary. While the exact wording differs between jurisdictions, the warnings are essentially as follows: You have the right to remain silent. You have the right to have an attorney present. If you can’t afford an attorney, you will be provided one by the government. Anything you say can be used against you in court.
Every state requires police to give the warnings in some form after taking a suspect into custody. The goal behind the requirement is to protect the truthfulness of the evidence that will be later used in court. If a person feels pressured or intimidated into talking, it is assumed that they are less likely to tell the truth and more likely to tell the police what they want to hear. Verdicts based on coerced confessions erode the efficacy of the criminal justice system, and the Miranda warnings are intended to protect suspects from their own tendency to succumb to intimidation.
So, do the police have to read you your rights? The question hinges on whether you are in custody or not. The rule of thumb in determining the custody question is whether or not you feel free to leave. In most cases, the answer is pretty easy – if you’ve been arrested, then you are in custody and law enforcement must give you the Miranda warnings. There are some situations, however, that aren’t so simple. For example, what if the police have stopped you on the street but haven’t officially arrested you yet? Or, what if you have consented to the police entering your home for a chat? You may not be in handcuffs or at the police station, but you still may be in custody.
Of course, most people don’t feel free to leave when they’re talking to the police, but in the event that you did say something incriminating before the police gave you the Miranda warnings, a good attorney can help you determine whether you were in custody and whether a judge should disallow your statement to be entered as evidence against you.