Criminal Defense Questions
I’m being investigated for a crime. What should I do?
The first stage of the criminal process is the investigation. In many cases, the police do not witness crimes first-hand, and make arrests and a charging decision only after a lengthy investigation. This time is usually your best chance to forestall prosecution. If you suspect or are aware that you are being investigated for a crime, you should contact an attorney as soon as possible to discuss a strategy that could prevent charges being filed and your subsequent arrest.
I’ve been arrested. What happens next?
To someone who is new to the system, the criminal process can be incredibly confusing. Do not let the system overwhelm you. Make sure you understand what is happening, and make sure your criminal defense attorney keeps you informed. The basic elements of the court process include:
1. Charges and Bail
When the police believe they have enough evidence, they make an arrest, go through their booking process, and the prosecutor makes a charging decision. Understand that you have certain constitutional rights at all times that must be protected. These include:
- The right to have an attorney
- The right to remain silent
- The right to a presumption of innocence
- The right to trial
Make sure you protect these rights at the earliest possible stage in the process.
If you have been arrested, you will likely have the opportunity to make bail by posting money or a bond as a surety for your future appearance in court. It is very important that before you, your family or friends post any money or bond, you contact an attorney to discuss your options.
After you are charged with a serious crime such as white collar crime, drug offense, DUI-manslaughter, sex offense, or the like, you will be required to go before a judge for your arraignment. The arraignment is the first formal court appearance and is where you will be advised of the charges and the potential penalties associated with the charges. During this proceeding, you should enter a plea of "not guilty" and request some time to consult with an attorney.
After your arraignment, your attorney will file a motion seeking a judge to enter a court order requiring the government to provide your attorney with copies of any and all police reports, statements from any alleged victims and witnesses, and any physical evidence that the government intends to use against you. In the event that the government fails or refuses to provide such evidence, your attorney will be required to file a motion to compel the government to produce certain items to which you are entitled.
4. Preliminary Hearing
The preliminary hearing is the stage at which your attorney can require the government to provide a preview of the evidence that it intends to use against you. During this hearing your attorney may seek to cross-examine the governments witnesses in order to determine any initial weakness in the government's case. This is an important hearing, and a crucial time to be aggressive and tactical.
5 Plea Bargaining
Sometimes, the best outcome is a plea bargain. Plea bargaining involves pleading guilty to a charge in exchange for the prosecutor dropping a more serious charge. There are situations when a trial is the best option but sometimes, the most realistic thing to do is plea bargain.
6. Pre-Trial Motion
When a case does not plead out, the process moves to trial. Before the trial happens, an aggressive criminal defense lawyer makes several pre-trial motions to the court to attempt to exclude evidence.
7. The Trial
The trial is the stage in the process everyone knows about. It is important to choose an attorney who has experience trying cases, so he or she can make the right tactical moves before the trial. At trial, that experience is even more important. Your attorney must understand how to present your case and persuade a jury. This is the essence of what a good criminal defense attorney does.
8. Sentencing / Consequences
Sometimes, despite an attorney's best efforts, charges can result in convictions. Your attorney's job is not done, however. Your attorney can argue for a sentence that is substantially lower than that for which the prosecution is asking. This can include a shorter jail term, a shorter probation, loss of fewer privileges such as driving, and a smaller fine.
Even after trial and sentencing, your attorney's job may not be done. If you lose at trial, you have the right to appeal. Appeals are not routinely successful. When they are successful, however, you may be entitled to a new trial, or you may be set free.
Finally, when all of your appeals are exhausted, and you have been released, you can think about getting your conviction expunged. There are specific and narrow grounds for expungement, and you should speak to your attorney to see if you qualify.