FAQ’s
- When do I need a lawyer?
Although there are times when problems can be handled by other professionals, some
matters are best handled with the help of a lawyer. Some of these instances include being
arrested for a crime, being served with legal documents related to a legal proceeding,
being involved in a serious accident causing personal injury or property damage, a
change in family status (divorce, birth, adoption, death), and a change in financial status
(bankruptcy or loss of valuable personal property or real estate). The sooner you are able
to get in touch with a lawyer regarding these matters, the more likely it will be that he/she
will be able to help you relieve your legal troubles. - What should I do if I’ve been arrested?
If you’ve been arrested, there are a few things you should do. You should remain silent
until you can get an attorney who is able to advise you of your rights and help you
understand the complexity of the legal system. You should remain calm and cooperative
with the police officers, but contact your attorney before answering any questions. After
contacting your attorney, he/she should be present for any further questioning or testing
by police or prosecutors. - What are alternatives to jail?
Depending on the severity of the case, jail is not always the first option after a conviction.
Alternative sentences can include probation, fines, restitution and/or community service.
It is important that no matter which sentencing is received, the defendant takes the
conviction seriously and completes any and all rulings decided by the court. - What are Miranda Rights?
In the 1966 Supreme Court case, Miranda v. Arizona, the Court ruled that whenever a
person is taken into custody, before being questioned, he/she must be told of the Fifth
Amendment right not to make self-incriminating statements. As a result, anyone who is
in police custody must be read Miranda Rights before being questioned. These include: - You have the right to remain silent.
- Anything you say can and will be used against you in a court of law.
- You have the right to an attorney.
- If you cannot afford an attorney, one will be appointed for you.
You must also acknowledge that you understand each of these statements before you can
legally be questioned. - What is the meaning of attorney-client privilege?
The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers
from testifying about, and from being forced to testify about, their clients’ statements.
Independent of that privilege, lawyers also owe their clients a duty of confidentiality. The
duty of confidentiality prevents lawyers from even informally discussing information
related to their clients’ cases with others. They must keep private almost all information
related to representation of the client, even if that information didn’t come from the
client. - What is bail?
Bail is the amount of money defendants must post to be released from custody until their
trial. Bail is not a fine. It is not supposed to be used as punishment. The purpose of bail is
simply to ensure that defendants will appear for trial and all pretrial hearings for which they
must be present. Bail is returned to defendants when their trial is over, in some states minus a
processing fee.
The judge or magistrate decides the amount of bail by weighing many factors:
– the risk of the defendant fleeing,
– the type of crime alleged,
– the “dangerousness” of defendants, and
– the safety of the community.
Typically, the amount that must be paid prior to the defendant’s release is 10% of the set bail
amount. - How does the jury system work?
It is important to note that not every criminal case will have a jury trial, although the
defendant will always have a right to one. Typically, jury trials are waived in lieu of the
judge deciding the verdict in a criminal case. However, if a criminal case travels through
the stages of a preliminary hearing and a pre-trial, a jury trial will be held. In California, a
jury of twelve must make a unanimous decision to convict the defendant beyond a
reasonable doubt before the defendant is deemed guilty. If the jury finds the defendant
not guilty, he or she will be released from custody and relieved of that particular
charge(s). - How is a criminal case filed?
First, there is an arrest and the police report that follows. The prosecutor then reads the
police report and decides whether or not the arrested should be charged with a crime.
Alternatively, the prosecutor can go to a grand jury and ask them to decide what criminal
charges should be filed (an indictment). Finally, a judge holds a preliminary hearing
where he or she decides whether there is enough evidence to proceed.
Prosecutors generally file criminal charges or not within 3 days, although in some
jurisdictions in as few as 2 days. Because prosecutors must file so quickly, the crime you
are charged with initially may change significantly over time. - What is a search warrant and how is it used?
A search warrant is a warrant issued by the competent authority authorizing a police
officer to search a specified place for evidence even without the occupant’s consent. A
search warrant is generally required to validate a Fourth Amendment search, subject to a
few exceptions.
Exceptions include:
Search incident to lawful arrest: if someone is lawfully arrested, the police may
search her person and any area surrounding the person that is within reach (within
his or her “wingspan”)
Plain View Exception: No warrant is required to seize evidence in plain view if
the police are legitimately in the location from which the evidence can be viewed.
For example, an officer cannot illegally enter a suspect’s back yard and then use
the plain view exception to seize an illegally kept alligator living in the pool. But,
if on the premises to serve a warrant duly issued to search for marijuana plants,
the alligator, if in plain view, can rightly (though by no means easily) be seized.
Consent: If consent is given by a person reasonably believed by an officer to have
authority to give such consent, no warrant is required for a search or seizure. So,
if a suspect’s “significant other” provides police with a key to the suspect’s
apartment, and police reasonably believe that she lives there, the search will not
violate suspect’s Fourth Amendment rights even if she did not live there and even
if she, in fact, lacked authority to consent.
Stop and Frisk: Police may stop a suspect so long as there is a reasonable
suspicion of a criminal act and the officer can articulate facts leading to that
suspicion. The evidence necessary for “reasonable suspicion” here is something
beyond mere suspicion, but is less than the level required for probable cause. If
there is reason to believe that the person may be armed and dangerous, the police
can also frisk the suspect.
Automobile Exception: Because vehicles are obviously highly mobile, a warrant
is not required to search vehicles if police have probable cause to believe the
vehicle contains evidence of a crime, the instrumentalities of crime, contraband,
or the fruits of a crime. Although commonly referred to as the “automobile
exception,” this rule applies to any vehicle, including boats.
Emergency/Hot Pursuit: The rationale here is similar to the automobile exception.
Evidence that can be easily moved, destroyed or otherwise made to disappear
before a warrant can be issued may be seized without a warrant. Furthermore, if a
suspect enters private property while being pursued by officers, no warrant is
required to enter that property in order to continue pursuit, even if the suspect is in
no way connected with the property owner.
14.) What is the difference between an infraction, a misdemeanor and a felony?
Infractions (sometimes called violations) are petty offenses that are typically punishable
by fines, but not jail time. Because infractions cannot result in a jail sentence or even
probation, defendants charged with infractions do not have a right to a jury trial.
Misdemeanors are more serious than infractions. They are usually defined as a crime
which is punishable by up to a year in jail time. Sometimes that jail time is served in a
local county jail instead of a high security prison. Other states define a misdemeanor as a
crime that is not a felony or an infraction. Prosecutors generally have a great degree of
flexibility in deciding what crimes to charge, how to punish them, and what kinds of plea
bargains to negotiate.
Felonies are the most serious types of crimes. They are usually defined by the fact that
they are punishable by prison sentences of greater than one year. Since the punishments
can be so severe, court room procedure must be strictly observed so that the defendants’
rights stay protected. Felonies are usually crimes that are viewed severely by society, and
include crimes such as murder, rape, burglary, kidnapping, or arson. However, felonies
can also be punished in a range of ways so that the punishment matches the severity of
the crime.
15.) What is the difference between an arraignment, a preliminary hearing and a pre-trial?1
During a typical arraignment, a person charged with a crime is called before a criminal
court judge, who:
– Reads the criminal charge(s) against the person (now called the “defendant”);
Asks the defendant if he or she has an attorney, or needs the assistance of a court-
appointed attorney;
– Asks the defendant how he or she answers, or “pleads to”, the criminal charges —
“guilty,” “not guilty,” or “no contest”;
Decides whether to alter the bail amount or to release the defendant on his or her own
recognizance (Note: These matters are usually revisited even if addressed in prior
proceedings); and
– Announces dates of future proceedings in the case, such as the preliminary hearing, pre-
trial motions, and trial.
A preliminary hearing is a hearing in which the judge decides whether or not there is
enough evidence in a case to proceed with a trial. To determine this, the judge will use
the legal standard of “probable cause” to decide if the government has produced enough
evidence to convince a reasonable jury that the defendant committed the crime(s)
charged. The judge will listen to arguments from the prosecutor and the defense attorney
using witnesses and physical evidence to decide if the case should proceed to trial.
After the preliminary hearing and before a criminal case goes to trial, the prosecutor and
the defense team usually appear before a criminal court judge and make pre-trial
motions — arguments that certain evidence should be kept out of the trial, that certain
persons must or cannot testify, or that the case should be dismissed altogether.