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CRIMINAL PROCEDURE
- THE ARREST PROCESS
- BAILS & BONDS
- PAROLE
- PROBATION & INTERMEDIARY SANCTIONS
- EXPUNGEMENT
To someone facing criminal charges, the judicial process can seem frightening and overwhelming. We help our clients navigate through criminal justice system by explaining the charges against them and informing them about what they can expect at each stage of the process, such as:
- Arraignment - After you are charged with a crime, 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.
- Discovery - After your arraignment, your attorney may file a motion seeking a court order requiring the prosecutor 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.
- Preliminary Hearing - The preliminary hearing is the stage at which your attorney can require the prosecutor to provide a preview of the evidence that he or she intends to use against you. During this hearing, your attorney may seek to cross examine the government's witnesses in order to determine any initial weakness in the prosecutor's case.
- Plea Bargaining - Sometimes, the best and most realistic outcome is a plea bargain. Plea bargaining involves pleading guilty to a lesser charge in exchange for the prosecutor dropping a more serious charge.
- Pre-Trial Motions - When a case does not plead out, the process moves to trial. Before the trial, your criminal defense lawyer may make pre-trial motions to the court to attempt to exclude evidence.
- The Trial - It is important to choose a criminal defense attorney who has experience trying cases, so that 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.
- Sentencing - Sometimes, despite an attorney's best efforts, charges can result in a conviction. However, your attorney can aggressively argue for a reduced or lesser sentence, if applicable, which may include a shorter jail term, a shorter probation, loss of fewer privileges such as driving, and a smaller fine.
- Appeals - 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.
- Expungement - Finally, if you are found not guilty, you should have your arrest records expunged, which process erases your criminal arrest as if it never happened.
This is only a brief introduction to the legal process. We will assess and explain the strengths and weaknesses of your case and give you a realistic perspective on the possible outcomes. We then fight aggressively to help you achieve the best possible outcome.
A. THE ARREST PROCESS
When someone is arrested, the police must follow certain legal procedures. An arrest occurs when police take you into custody and 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. These rights are designed to protect your right against self-incrimination under the Fifth Amendment to the U.S. Constitution. There are five different rights, commonly known as the "Miranda Warnings:"
1. You have the right to remain silent and to refuse to answer questions.
2. Anything that you do say may be used against you in a court of law.
3. You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
5. If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
These Miranda warnings must only be read when an individual is in police custody and is under interrogation. 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-blown 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.
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), and will fingerprint and photograph you. You may also be asked to participate in a line-up, give a handwriting sample or do similar things. 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.
After you have been 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. If you are placed in custody, you have the right to promptly appear in court to hear the charges filed against you and to enter a plea. This usually means that the prosecutor must decide within seventy-two (72) 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 additional evidence is obtained.
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. 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 a judge if he or she feels that it is being made voluntarily and intelligently.
If you are placed in jail, you may be released prior to your trial if you post bail. Bail is money that you pay to the court 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 appear, the court keeps the money and can issue a warrant for your arrest.
B. BAILS & BONDS
If you are arrested for a crime, the judge will usually set what is called "bail." The Eighth Amendment to the U.S. Constitution states that bail cannot be excessive. Bail is sometimes set immediately after you are booked for a crime. For more serious crimes, bail may not be set until your arraignment, which is the court date where the charges are read against you and you enter your plea. Bail is the amount of money that you are required to pay in order to be able to leave jail during the period between your arraignment and the trial. In some cases the judge may deny bail, meaning that you will have to stay in jail to await your criminal trial. For example, individuals who commit particularly reprehensible crimes, or who are considered to be a high flight risk, may be denied bail. In most situations, you are not required to pay the full bail amount, but are instead allowed to post a portion of it, known as a "bond." The bond is your promise that you will show up for all required court appearances. There are many different ways in which bond can be posted. In other situations, you may be allowed to be "released on your own recognizance." This means that the payment of bail is waived on the condition that you appear in court when required.
C. PAROLE
After you have been arrested, if you are found guilty of a crime, you may have to serve time in prison or another facility. Your sentence may be reduced if you are released on parole, or you may be placed on parole after serving your full sentence. Parole may not be available for more serious crimes or in the case of repeat offenders. Parole is essentially a conditional release from prison. In some cases, a prisoner may be released on parole only when he or she has served his or her full sentence. In other situations, a prisoner's sentence may be cut short, and he or she may receive an early release on parole. Parole allows a prisoner, or parolee, to leave prison and re-enter the community, subject to certain limitations and rules. Parolees who break any of the terms of parole can be sent back to prison for the remainder of their sentence or face additional punishment.
Any number of factors will be considered by the parole board in determining whether a prisoner should be released on parole. These factors may include the prisoner's age, mental status, education and training, employment opportunities and remorse for having committed the offense. The parole board will also consider the prisoner's behavior and attitude while in prison, participation in prison-education and prison-therapy programs, and the severity of the crime that was committed.
The conditions of parole that may be imposed are controlled by state law and also by the circumstances of the particular case. A parolee might be required to remain in a specific geographical area, or he or she might be required to obtain a job, receive treatment or submit to counseling or periodic drug testing. Parolees are, almost without exception, prohibited from owning firearms. In all cases, a parolee will be required to meet with a parole officer. Usually, these meetings will be on a pre-determined schedule. The frequency of meetings with a parole officer depends upon the type of crime that was committed and the risk the parolee poses to the general health and safety of the community.
D. PROBATION & INTERMEDIATE SANCTIONS
Parole should not be confused with probation, which is a totally separate concept. Parole occurs when a prisoner is released from prison after having served either a portion or all of a sentence. Probation is an alternative to initial incarceration. Offenders who receive probation as a sentence will be able to remain members of their community, as long as they follow rules set by the court. These rules may require them to seek counseling or treatment, submit to drug testing, participate in community education programs or perform community service. They will also be required to attend regular meetings with their parole officer. If they break any of these rules, their probation can be revoked, and they can be sent to prison.
E. EXPUNGEMENT
Expungement is the removal of court and police records from public inspection. If your criminal records are expunged, then someone searching the court files cannot find a record of your criminal case. Expungement involves the elimination or sealing of a criminal record after the expiration of a certain period of time or when an arrest is unlawful or does not result in a conviction. If you were arrested but never convicted of a crime, you may not have a criminal record, but you do have an arrest record, which can be eligible for expungement.
There are numerous reasons why a person may want to expunge criminal records. For example, when looking for employment, housing or a professional license, an individual who has his or her criminal record sealed or destroyed can, in some cases, legally assert that he or she has no criminal history. If a criminal record has been expunged, a background search by an employer, educational institution or a government agency of a person's public records will not reveal a conviction or arrest.
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