CRIMINAL DEFENSE INFORMATION
When Can a Person be Arrested?
A police officer is allowed to arrest a person if the officer has grounds to reasonably believe the person is committing or has committed a crime. If the crime occurred in the past, usually the police officer is required to obtain a warrant for that person’s arrest. Police obtain arrest warrants after they have investigated a case and developed “probable cause” to show that an offense has been committed.
Once the case has been investigated, the police officer then appears before a judge, and the judge questions the officer under oath about his investigation. If it appears to the judge that an offense has been committed, the judge will issue a warrant for the suspect’s arrest. The court also will set a bond upon the warrant at that time. The bond specifies the amount of money a person will be required to post, once arrested, in order to secure his or her pretrial release.
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When do the Police Need a Search Warrant?
The Fourth Amendment to the Constitution of the United States guards against unreasonable government searches and seizures of peoples’ “persons, houses, papers and effects.” Generally, if the police want to enter and search a person’s home, business, or vehicle, the police will not be allowed to do so without that person’s consent or without first obtaining a search warrant.
All search warrants must be supported by a showing of probable cause that an offense has been or is being committed, and are limited in scope to allow for the search and seizure of evidence of a crime. Courts enforce the protections of the Fourth Amendment by applying the exclusionary rule. The exclusionary rule provides that if the police violate a person’s Fourth Amendment rights, the prosecution will not be allowed to use the evidence that was gathered in violation of those rights in that person’s criminal trial.
If a person believes his or her Fourth Amendment rights were violated, that person must affirmatively raise that issue during the defense of their case in court. If this issue is not raised in the trial court, and later the person is convicted of the crime, this issue is deemed waived and may not be raised on appeal.
The specific method in which a criminal defense attorney will challenge an illegal search and seizure is by filing a “Motion to Suppress Evidence.” The court then will hold a pretrial hearing to determine whether the search and seizure was legal. If the court finds that either the search or seizure was illegal, the State will be barred from using the evidence that was seized.
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What are Miranda Rights?
Miranda Rights include the following: the right to remain silent, the right to be informed that anything a person says will be used against them in a court of law, the right to an attorney, and the right to be informed that if a person cannot afford an attorney, one will be appointed.
The police are required to inform a person who is in custody of his or her Miranda rights before they question the person about the commission of a crime. If the police fail to provide a suspect their Miranda rights, any oral or written statements made by the person will be deemed to have been made involuntarily. As a result, the prosecution will not be allowed to use the statements against the person during their criminal trial.
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What Happens at a Bond Hearing?
If a person has been arrested for a serious offense, or has been taken into custody on an arrest warrant and is unable to post bond at the police station, the person is delivered to the county jail and brought before a judge. When the person appears in court, the judge will conduct a bond hearing. If no bond has previously been set, the court will hear the factual allegations from the prosecutor, and will consider the seriousness of the charges, the criminal history of the defendant, and other relevant issues.
The court then will set a bond on the case. If a cash bond, or “D-bond,” is set, as opposed to a “recognizance bond” or an “I-Bond,” the person will be required to post 10% of the bond amount to secure his or her pretrial release. If a bond has previously been set on an arrest warrant, the court may review the bond at that time. An attorney should appear at the defendant’s bond hearing if at all possible to advocate for an appropriate bond on the case.
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What is a Preliminary Hearing?
In a felony case, an initial determination must be made whether there is probable cause that a person committed a crime. This determination is made by the court during a “preliminary hearing.” Generally, at a preliminary hearing a police officer will testify about the alleged facts. The defendant usually will not testify at this hearing. If the judge finds that there is probable cause to believe that a person committed a crime, the case will be allowed to continue on to the trial court. Conversely, if the judge makes a finding of “no probable cause,” typically the prosecution will end there.
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What is an Indictment?
An indictment is another manner in which a probable cause finding can be made. Indictments are returned by the Grand Jury in felony cases. The prosecution has the discretion to decide which cases will proceed to a preliminary hearing, and which cases will be brought before the Grand Jury to seek indictments.
If the Grand Jury returns an indictment in a case, the indictment has the same function and effect of a probable cause determination made by a judge at a preliminary hearing. The difference between the Grand Jury proceedings and a preliminary hearing is that neither the defendant nor his attorney has a right to be present at the Grand Jury proceedings.
Whether a case goes to preliminary hearing or the Grand Jury, however, a transcript of the testimony given in either situation can be obtained by the defense.
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What Happens at the Arraignment?
At the arraignment phase of a case, the judge tells the defendant the names of the formal charges that have been filed. The judge also advises the defendant as to the maximum possible penalties for those charges. The court then will accept the defendant’s initial plea: guilty or not guilty. Almost invariably, a not guilty plea as to each and every charge is entered at the arraignment. Entering a not guilty plea at the arraignment entitles the defendant to the discovery materials, and provides the defendant and his or her attorney more time to investigate the case.
“Discovery” consists of any documents, witness lists, materials, photographs, video or audio tape, reports, and other evidence either side intends to use at trial. At the arraignment, typically the court will order the prosecution to deliver discovery to the defense within 7 days, and will order the defense to turn over its own discovery within 14 days. Usually, both sides also will be required to file any pretrial motions, such as motions to dismiss and motions to suppress, within 21 days.
The court then will set a “pretrial” and a separate “trial” date on the case. Cases that are not resolved on pretrial dates proceed to trial, where a judge or jury determines guilt or innocence.
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What is Plea Bargaining?
There is a reason why most criminal cases are resolved by plea bargaining: certainty. Plea bargaining can be a fantastically complicated process, one that considers a wide variety of factors, possibilities, and contingencies in each case.
Since every case is different, defense attorneys and prosecutors must approach the plea bargaining process in each case with a fresh perspective. The major factors that are considered in this process include: the seriousness of the charges, strengths and weaknesses in the State’s case, and the defendant’s criminal history. The other factors that may be appropriately considered are nearly infinite.
What is plea bargaining? It is a method by which the prosecution and defense endeavor to resolve a criminal case without going to trial and in a manner that both sides can accept.
Prosecutors are motivated to plea bargain cases for many reasons. One such reason is that prosecutors have notoriously large caseloads. Trials consume a lot of prosecutorial effort and time. If a prosecutor is determined to resolve every case by going to trial, that prosecutor probably could not do so in two lifetimes. Plea bargaining, to the contrary, allows prosecutors to be efficient and move cases in order to deal with the never-ending stream of new cases to come.
Defense attorneys plea bargain for other reasons. Probably the most significant of these is to control the potential damages in a case in a way that best protects their clients. If the State has a strong case, and if the possible penalties are harsh, a good defense attorney may be able to plea bargain the case for a result that allows his or her client to emerge comparatively unscathed. It is not uncommon for a judge to impose a sentence after a trial has been lost that is two or three times as severe as the plea offer made on the case.
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What Happens at a Trial?
If a criminal case cannot be resolved by plea bargaining, or has not been dismissed or thrown out by the judge, the case will proceed to trial. What happens at trial is simple. It is where the State is required actually to prove the charges beyond a reasonable doubt. Even after a person is charged with a crime, that person is presumed innocent until proven guilty beyond a reasonable doubt. The burden of proof is always on the prosecution and never shifts to the defense. This means that the defense cannot be forced to present evidence and can choose, if it desires, to present no evidence at all. Nor can the defendant be forced to testify.
Every witness who testifies at trial is subject to cross-examination. This means that the defense attorney has an opportunity to question every witness called by the State, and vice versa. Frequently the testimony of an apparently credible State witness can be attacked and damaged by a well-planned cross. Once all the testimony has concluded and the evidence has been admitted, it becomes time for the judge or jury to decide the case.
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What is a Sentencing Hearing?
If a person has been found guilty at trial, the judge determines what the sentence will be. In determining the sentence, the judge is allowed to impose a penalty up to the maximum allowed under the law. At the sentencing hearing, the court will consider the recommendations of the parties. The prosecution will be allowed to argue for a particular sentence as will the defense.
In deciding the sentence, the court will consider many of the same factors that would have been scrutinized in a previous effort to plea bargain the case: the seriousness of the charges, the strengths and weaknesses of the evidence presented at trial, and the defendant’s criminal history. At the sentencing hearing, it is imperative that the defense attorney portrays his or her client in the most positive way possible.
Contact This Office
If you are charged with a criminal offense, contact this office toll free at
1-877-360-1880 for a free initial office consultation to discuss your case.
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