This section deals with criminal cases in general. There is a separate section below dealing with driving under the influence cases.
A crime is some conduct which the law both prohibits and punishes. In order for something to be a crime, there must first be a law which prohibits some particular conduct, and the law will also describe the penalty if that conduct is done. Some of the more common criminal offenses are driving under the influence (DUI), driving on a suspended license, hit and run, theft, drugs, or domestic violence. The definition of a crime has elements, or parts, which must all occur in order for the conduct to be a crime. The definitions of some crimes are very technical, so you need to see if the prosecution can prove all of the elements of the crime you are charged with. If you commit only 98% of a crime, you have not committed that crime.
They really are out to get you
If you have been arrested, you should know that a criminal case is an adversarial process. This means the police and prosecution are trying to convict you, while you are fighting not to be convicted. If you are facing criminal charges, you want someone who will be looking out for you. It is a good idea to consult with an attorney, particularly when you can receive a consultation for free. An attorney cannot disclose what you tell him in confidence, even if you do not retain the attorney.
Is it a Felony or Misdemeanor?
A felony is a crime for which prison is a possibility. A misdemeanor is a crime which might carry a jail sentence, but not prison. Some crimes can be charged as a felony or as a misdemeanor. The police make an arrest, but it is the District Attorney who decides what the actual charges will be. This means you may not know for sure what you are dealing with until the case is filed in court. A probation violation hearing is a part of a criminal case, in which the court is trying to impose a greater sentence for some violation of the terms of probation.
Bail and Own Recognizance
The person arrested can either be released on his promise to come to court, or he might be held in custody until he goes to court. If the person is held in custody, he will generally be allowed to post bail in order to get out of jail. Most bail companies charge about 10% of the bail amount as their fee for writing a bail bond. With bail set at $50,000.00, it would cost about $5,000.00 to purchase a bail bond. The court has the power to reduce bail or even allow someone to be released without posting bail. If you are taken to court in custody, you will want to ask the court for a bail reduction or a release on your own recognizance when you first go to court. Once you purchase a bail bond, the fee is non-refundable, even if charges are not filed. If the case is weak, or if there are significant issues in your defense, an attorney might be able to prevent the filing of charges by discussing the case with the District Attorney before the case is filed. This might save you thousands of dollars compared to purchasing a bail bond.
The First Appearance
The first appearance in court is called the arraignment, where the court tells you what you are charged with. The first appearance is not the trial, so don't worry about having your defense ready on short notice. However, the arraignment is an important step, and if you are interested in having an attorney, it is a good idea to let the attorney handle the case from the beginning. Certain issues may be waived if not handled properly at the arraignment, and the attorney will want to have a hand in the scheduling of future dates. You will want to make arrangements ahead of time in order to ensure the availability of your attorney, and so that your attorney will be up to speed when he first goes to court.
You have the right to have a speedy trial. This means the court must set the trial within a certain time frame, unless you waive, or give up, the right to a speedy trial. The actual time frame will depend on whether the charge is a felony or a misdemeanor, and whether you were in custody at the time of the arraignment. You don't want to insist on a speedy trial if you are not ready yourself. If you are being held in custody, there is much more urgency in preparing the case promptly, so that you do not stay in jail unnecessarily.
Preserve Helpful Evidence
Immediately after an arrest, you should consider what might help your defense and try to preserve any helpful evidence before it is lost. Witness names, photographs of the scene, photographs of vehicles, and photographs of your own injuries can prove to be helpful, and these can be lost forever if not obtained promptly. Sales receipts, credit card charges and cell phone records can help to show where you were, or at what time something happened. Even a surveillance video can prove helpful, and often these are only saved for a certain amount of time. You should also save all documents connected with your arrest, including a temporary driver license, the notice to come to court, and the receipt for property. Because alcohol metabolizes fairly quickly, testing for alcohol after you have been released would have to be done immediately if it is to have any value. But if you have been arrested on a charge of being under the influence of a drug, it is recommended that you arrange to have your blood or urine tested by your own lab as soon as possible after you have been released. Having your own test done within say, 48 hours of the arrest may prove to be helpful on a drug charge. And if it doesn't help, you don't have to use it. However, you are more protected if the test is done at the direction of your attorney, because an attorney's investigation is privileged, which assures that the prosecution will not find out about it unless you choose to disclose it.
You should not discuss the incident. You might not know the significance of the facts you are discussing, so you might not realize the damage you can do. Even if you deny committing the crime, you might be admitting some fact or element of the crime that can still help the prosecution. Even an alibi can do serious damage to your defense if it has holes in it. There is downside but no upside, so why do it. There will be a time and a place for your defense. Sometimes the police may want to talk with you to conduct further investigation before charges are filed. This is a very delicate situation, and it is a good idea to consult with an attorney first.
Can They Prove it?
Two important concepts in criminal law are that the prosecution has the burden of proof, and the defendant has the right to remain silent. This means the prosecution has to bring sufficient evidence into court to convince all 12 jurors, beyond a reasonable doubt, that you are guilty, and they cannot call you to the stand to ask if you are guilty! Even when the defendant knows he is guilty, the prosecution might not have enough evidence. So, it is important to review the prosecution's case to see if the prosecution has enough evidence to get a conviction. The arrest report is a summary of the case and it is usually available at the time of the first court appearance. However, the arrest report cannot be used as evidence! Even if the arrest report suggests the prosecution may have a case, we still want to check on the availability of the officers, civilian witnesses, and the evidence, particularly if the case is very old. Remember, the prosecution would have to bring the evidence and witnesses into court. You wouldn't want to plead guilty if you didn't have to, right? If the prosecution can't prove the case, then you don't have to plead guilty.
Can They Use the Evidence?
The next question is whether the prosecution will be allowed to use its evidence. The prosecution can be prevented from using evidence if it was obtained illegally. This can happen through an unreasonable search or through improper questioning. If the evidence is suppressed, or thrown out, then the prosecution cannot use it. The suppressed evidence can include not only the original evidence that was obtained illegally, but also the "fruits" of that evidence, which means any additional evidence which was uncovered as a result of the first illegally seized evidence. Even the observations of an officer can be suppressed if the officer had to illegally detain you in order to make those observations. A motion to suppress the evidence is a pre-trial motion, which means you get to see if the prosecution can use its evidence before you decide if you want to go all the way to trial. Suppressing the prosecution's critical evidence can end the case without a trial. In a drunk driving case, the entire case would be thrown out if the initial detention of the vehicle was improper, because all of the evidence comes from the initial detention of the vehicle.
We must consider whether we can develop any affirmative evidence that will contradict or neutralize the prosecution's evidence. The strength of your defense and the weakness of the prosecution's case will be factors in our ability to have the charges dropped, to negotiate a disposition, or in your willingness to go to trial, but not all cases go to trial. A trial is one option, while a negotiated disposition is another option. If the evidence is admissible and if the case cannot be dismissed, it is the defendant's decision whether to proceed to trial or to accept some negotiated disposition, commonly called a plea bargain. An offer from the prosecution is usually a function of the strength or weakness of the prosecution's case, the strength of your defense, the seriousness of the offense, and your record. Generally, the sentence gets worse as the facts of the case become more aggravated or as the defendant's record is more serious. However, many dispositions are negotiable, so there is still work to be done even if you do not plan to go to trial. An attorney can explore some sentencing options that might be acceptable to the court. Your goal might be to put off the sentence until a certain date, to avoid jail time, to be allowed to check out of jail and go to work, or to reach a disposition that does not require you to travel back to this area.
In drug cases, there may be an option of doing a drug education program instead of being sentenced for a conviction. This may be worth exploring, since some drug charges carry some rather high jail time if you are convicted and sentenced. In cases involving property damage or theft, there may be a possibility of a civil compromise, which means the victim is satisfied and wishes to have the case dropped. But the prosecutor or judge makes the final decision on whether to drop a case, not the victim. Often in cases of domestic violence, the prosecution will continue even if the victim wants to see the case dropped. In juvenile cases, the court might agree to put off the entire case while the juvenile is subject to certain conditions, similar to probation. If the conditions are met, the case may be dismissed without a conviction.
The "Side Effects"
In addition to the proposed sentence, you will want to be aware of the "side effects" of a conviction before you plead guilty. Certain convictions are "priorable", which means each new conviction becomes more serious. Driving under the influence, driving on a suspended license, and crimes falling within the three strikes law are examples of convictions that will make each new case more serious. A felony conviction and certain misdemeanors will prohibit you from possessing a firearm and certain other weapons. Some professional licenses can be jeopardized by certain convictions. Many sex offenses require registration as a sex offender, and some crimes involving drugs or dishonesty might disqualify you from obtaining a security clearance, or might disqualify you from getting a particular job. A private person cannot legally obtain your actual criminal record, but companies that offer background checks try to reconstruct your criminal record by indexing all of the court records under your name. Court records are public information. So, even when the rest of the disposition is the same, the charge you are convicted of can make a difference. If you have a particular goal, you should discuss it with an attorney to see if that can be accomplished.
Do You Want a Trial?
The decision to go to trial is not made lightly. A trial takes more time, costs more, and it exposes you to a potentially worse outcome than you might have had with a plea bargain. Your decision to go to trial may consider many factors, including the strength of the prosecution's case, the strength of your defense, and the best offer that can be obtained without a trial. On the other hand, some charges are so serious that there is just no room to negotiate. When there is nothing acceptable to both you and the prosecution, a trial may be your only option. When you are innocent and cannot accept the stigma of being guilty of anything, a trial may be your only option. When you go to trial, you must go all the way to win. You must pull out all the stops. Frankly, the jury wants to see a battle. They want to see a well presented and hard fought case. We must locate and line up all favorable evidence and all favorable witnesses. We may want to make diagrams or have photographs enlarged. We must consider whether any expert witnesses can help you present a better case for the jury. Other than the defendant's own testimony, the law requires that the defense must disclose its witnesses and evidence to the prosecution ahead of time. This underscores the need for a well planned defense strategy leading up to the trial. A jury trial is also part theater, in the sense that we are making a presentation which will sway the jury. If you are going to pull out all the stops and go to trial, you should have an experienced trial attorney on your side.
Who Can Represent Me?
You do have the right to represent yourself, but you will be held to the same standards as an attorney, which means that you have to know what you are doing. Even attorneys seek legal counsel if they are charged with a crime. If you cannot afford an attorney, the court can appoint a public defender to help you. However, you have to come to court to get a public defender, and the public defender is not "free." The court can order you to pay back the cost of the public defender at the end of the case. In a misdemeanor case, the defendant does not have to come to court when he is represented by an attorney. Not having to come to court can be an advantage for you