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Have You Been Arrested!?

"Don't Blow"

Going to Court

Rules on Court Appearance

The criminal justice system can be very confusing and scary.  While you have the right to represent yourself in court, the advice of a lawyer is invaluable.  While you may not feel you have the money to hire a lawyer, you may not be able to afford not to have a lawyer.  If you cannot afford a lawyer and are charged with an offense which caries possible jail or prison time, you are entitled to a court-appointed lawyer at state expense.

Q: What is a Crime?

A: Crimes are generally classified as felonies or misdemeanors.  Generally, felonies are punished by a sentence of one year or more in prison.  Misdemeanors are generally punished by one year or less in a county jail.  Probation is also a possibility.  Under probation, a person would not serve any time in jail or in prison.

Q: When should I retain an attorney?

A: You may retain an attorney at any time, regardless of how far along your case may have progressed.  It is most often best to retain an attorney when you first learn that there may be an investigation.

Q: What is a Criminal Proceeding?

A: The following definitions are provided to explain the criminal justices process:

     a. Arrest and Booking: This is when a police officer takes you into custody and takes you to jail.  The process of actually putting you in jail is called booking.

      b. Initial Appearance (Commonly referred to as "Arraignment"): If you are charged with a felony, this will be the first time you will go before a judge.  Your legal rights will be described for you, and a bond will be set for you which you must arrange to pay before you may be released from jail.  In some cases, this bond may be an Own-Recognizance Bond ("O.R. Bond") which requires no payment of money to a bondsman.  You also will be told the next time you are to appear in court.  If you are charged with a misdemeanor, this initial hearing is called an arraignment.

      c. Preliminary Hearing Conference: This hearing may also be called a pre-preliminary hearing or an announcement docket.  Generally, these hearings are a time for the prosecutor to make a plea bargain offer to you and your attorney.  If you decide to accept the offer, you would waive or give up your our right to a preliminary hearing and set your case for a date for you to plead guilty.  If you do not accept the plea offer, you will have your case set for a preliminary hearing.  

        d. Preliminary Hearing: A preliminary hearing is a court hearing where witness testify and the judge decides whether there is enough evidence against you to order you to have a trial.  If the court believes there is enough evidence to believe a crime was committed the crime (often, this is called probable cause"), the court will "bind you over" for trial.  If the court does not believe there is enough evidence, the case is dismissed. 

         e. Jury Call Docket: This is a hearing where you and your lawyer meet with the judge and the assistant district attorney to announce that you want a trial or to plead guilty.

          f. Plea or Disposition Docket: At this hearing you will appear with your attorney and plead guilty or "no contest" to a judge.  At this hearing the court will announce your punishment based on your plea bargain agreement with the District Attorney's Office.  If the judge thinks the punishment is not harsh enough, you will be allowed to withdraw your plea of guilty and have a trial.

          g. Blind Plea: If you do not have a plea bargain agreement with the District Attorney's Office, you may still plead guilty.  This type of plea is often called a "blind plea." In this situation, you do not know the punishment the judge will give you and you are throwing yourself on the mercy of the court.  If you do not like the punishment the court decides is appropriate for you, you do not have the right to have your case set for trial. 

          h. Jury Trial: This is a hearing where a jury decided whether you are guilty of the crime with which you have been charged. 

           i. Non-Jury or Bench Trial: This is a hearing where the judge you are guilty of the crime with which you have been charged.

          j. Deferred Sentence: You are not convicted of a crime until you are found guilty and punished for the crime.  With a deferred sentence, the judge finds you guilty of the crime but postpones, delays or defers sentencing until a later date (from one day to five years).  If you do everything the court orders you to do, the court will dismiss your case and the charge will not appear on your record.  You may be ordered to pay all court costs and fees, see a probation officer, go  to treatment and to make sire you do not break the law again. 

         k. Suspended Sentence: You are convicted of a crime, but are on probation for all or part of the sentence; it is suspended so you do not have to go to prison for that amount of time, as long as you satisfy the conditions of probation.  The probation may be "supervised" or "unsupervised."  If it is supervised, you must regularly report to a probation officer,  If it is "unsupervised," you simply must obey the ruled of probation and not break the law.

          l. Bench Warrant: A bench warrant is an order by the court to have you arrested because you failed to appear in court when the court told you to appear.

The Constitution of the United States guarantees you certain rights.  The following are some of the more basic rights, but it is not a complete list;  you have many other rights under our constitution:

           a. Right to Remain Silent: When the police arrest you, you have the right to remain silent.   You may talk to the police you about the crime they arrested you for, but you do not have to.  If you do not start talking to the police, you may stop talking at any time during the interview or interrogation and ask for a lawyer before talking further.  At that point the law enforcement officer must ask no more questions.  Anything you say or write to the police can will be used against you in court.  You may also ask to have your lawyer with you when the police are asking you questions.  If you cannot afford to hire a lawyer, the court may appoint a lawyer to represent you in the court believes you do not have enough money to hire one.

             b. Right to be Represented by a Lawyer: You have the right to have a lawyer.  If you cannot afford to hire a lawyer, you can submit the appropriate application, called either "Form 13.3" or "Pauper's Affidavit," which asks the judge to appoint a lawyer to represent you.  One good reason to be represented by a lawyer is to make sire your rights have not been violated.  Another reason is to ensure that you get all the evidence you need to defend yourself; many time a lawyer knows the kind of evidence that is best suited for a good defense.  It is extremely risky to defend yourself in a criminal proceeding without a lawyer.

              c. Right to Confront the Witness Against You: You have the right for your lawyer to ask questions of every witness against you if you go to trial. 

               d. Right not to be Stopped and Searched Without a Good Reason: Law enforcement officers have to have a good reason before they decide to arrest you or search you or your property.  This is called "probable cause."  In some cases the officer must first get a judge to issue a search warrant.  In other cases, such as routine traffic stops for traffic violations, there must be some good reason why officers suspect you may be committing a crime  before they may search without getting a warrant.  You may lawfully refuse a request for consent to search.  However, if an officer asks you simply to identify yourself or show ID, you must comply.

Bail is initially set according to a bail schedule published by the Court in each county or by a judge after your arrest.  Sometimes defendants will receive an "own recognizance (O.R)" release and will not have t post bail.  Bail reduction motions can first be made at the arraignment.  There are also other (but limited) opportunities to bring a motion to reduce bail.  Bail is made with cash or a bond.  A bond requires a 10% fee to a bondsman plus collateral.  The 10% is the bondman's fee and will not be refunded.  Cash bail is returned, less a small administrative fee, when the case is over.  We often can help you find a bondsman who will will work diligently to arrange bail, (often including payment on their fee,) with eased collateral requirements.

Arrest must be based on probable cause.  While there is no simple test to define probable cause, the police must rely on what they believe to be good information. 

Certain constitutional protections apply to a person charged with a crime.  There are also certain procedures that are roughly the same from jurisdiction to jurisdiction.  The following is a brief description of what happens when a person is charged with a crime.  A person may be charged with a crime before they are arrested.  If this happens, a judge will issue a warrant for the person's arrest.  A police officer will attempt to locate the person who is the subject of the warrant .  If the person is located by the police and arrested, the police must give the person a copy of the warrant that states the charge for which they at being arrested.  The police do not necessarily need to have a copy of the warrant with them at the time of the arrest, but they should provide a copy to the arrested person within a reasonable amount of time afterward.  After a person is arrested, they will be "booked" at the police department.  This entails taking fingerprints and completing other procedural requirements.  The person will then be help in police custody pending a court hearing.  This hearing will usually take place within 48 hours. 

When a person is taken into police custody, they have the right to speak with an attorney.  The person should have at least a brief opportunity to meet with their attorney before their initial court hearing.  At the court hearing the judge will read the charges against the person, who is called the defendant.  If a person was arrested without an arrest warrant, this may be the first time that they are told the charges against them.  The judge will try to make sure that the defendant understands the charges.  The judge will then ask the defendant to enter a plea.  A defendant can enter a plea of "not guilty," of "no contest", or of "guilty."

Even if a defendant is guilty, they can enter a plea of not guilty, if they think that there is not enough evidence to prove their guilt.  In any case, a plea of not guilty will lead to a trial where the government will have to prove, beyond a reasonable doubt, that the defendant is guilty of the crime that they are charged with. 

A jury will have to decide, based  on the evidence presented by both sides, whether the defendant is to be found guilty or not guilty.  In some cases, a defendant may waive their right to a jury trial, and the judge will be the one to decide if they are guilty or not guilty based on the evidence that is presented.  The defendant should consult with their attorney about whether or not they should waive their right to a jury trial.

If the results of the trial is that the defendant is found not guilty of the crimes charged, they will be released from custody.  If the results of the trial is that the defendant is found guilty or if there is nor trial because the defendant entered a plea of no contest or of guilty, then there will be a sentencing hearing. 

There may be evaluations of the defendant that are performed prior to the sentencing hearing.  For example, if the crime is DWI, the defendant may be evaluated to determine if they have a substance abuse problem.  The court will also make a pre-sentencing report, which is basically an investigating into any prior criminal history of the defendant.  This information helps the judge determine an appropriate sentence.

At the sentencing hearing, there may be an opportunity for individuals to speak to the court about what factors they feel the court should take into account in determining a sentence.  These individuals can include the victim of the crime, the victim's family, the defendant, the defendant's family, and any other interested party. 

The judge will consider all of the evidence presented into account any sentencing requirements.  The judge will then enter a sentence for the defendant.  If the crime was relatively minor, and the defendant has been in custody during the whole court process, they may have already served the jail time that is imposed by the judge.  If the crime is more serious, the defendant may face even more jail time.  A criminal sentence may involve more that serving time in jail as well.  The defendant may be ordered to pay fines, to give restitution to the victim, to undergo treatment for substance abuse or mental problems, to perform community service, or many other things. 

Anyone who is charged with a crime should hire an attorney with experience in criminal defense to represent them.  This is the best way to make sure that their rights are protected, and that they obtain the best possible outcome.