Frequently Asked Questions About Criminal Law
Q: Are the police required to read the Miranda warning before speaking to me if I am detained?
A: There is no law requiring police to read a Miranda warning to someone just because they are detained or arrested. However, any statements made as a result of police custodial interrogation will not be admissible in Court if a Miranda warning is not read to a person in custody and a voluntary waiver of these rights is given by the person being interrogated. Generally, being in custody means that a reasonable person would conclude that they were not free to leave. Statements that are volunteered by someone in custody, without an interrogation, can be used against them even if the police did not provide Miranda warnings.
When are search and seizure rules in effect?
Generally the laws applying to search or seizure apply whenever law enforcement conducts a search that invades a citizen’s legitimate expectation of privacy. The expectation of privacy must be objectively reasonable under the circumstances.
Q: What is a search warrant?
A: A search warrant is a document signed by a judge that allows the police to conduct a search in a certain place for certain things. The police must obtain enough probable cause based on their observations or information from a reliable informant in order to have a judge sign a search warrant. The search generally cannot extend beyond the scope of the warrant, in terms of either the locations searched or the items for which the police are searching.
Q: Is a warrant always required before the police can conduct a search?
A: No. There are exceptions that allow for a warrantless search. These may include valid consent by an occupant of the property, evidence that is in plain view that establishes probable cause, or an emergency that requires prompt action, or searches incident to an arrest.
Q: What is the exclusionary rule?
A: Under various federal and state laws, the exclusionary rule provides that evidence obtained through a constitutional or other state law violation cannot be used against a defendant. A related doctrine, known as the fruit of the poisonous tree, states that evidence obtained from unconstitutionally or illegally obtained evidence to be excluded also.
Q: What is a motion to suppress?
A: A motion to suppress is a pre-trial motion where a defendant is asking the judge to exclude evidence from being presented at trial. A motion to suppress is commonly used in cases where the defendant believes an illegal search or seizure resulted in evidence being obtained against them.
Q: Can a defendant be convicted on a confession alone?
A: No, a defendant cannot be convicted based only on a confession. There must be corroborating evidence that also shows the alleged offense was committed.
Q: How long does a criminal case take?
A: There are numerous variables that determine how long a case takes from beginning to end. How busy the court that the case is in, the complexity of the case, the availability of witnesses, is the defendant incarcerated are just a few variables that come into play. Some cases resolve in a short time period and some may go on for a year or even longer.
Q: How many criminal cases go to trial?
A: In reality very few cases actually go to a trial where the defendant is actually in front of a judge or jury contesting the charge. Before trial the charges may be dismissed or dropped. The defense may succeed in a pre-trial motion that negates the prosecution’s case. Very commonly, the two sides will reach a plea agreement in which the defendant pleads guilty or no contest in exchange for a reduced charge or sentence.
Q: Does the prosecution need to prove a motive?
A: Unlike what you may see in the movies and television, a motive is not an essential element of a crime and is not required to be proven. It may help the prosecution prove the matter of intent of the accused but it is not legally required to be proven.
Q: What is the difference between a criminal lawsuit and a civil lawsuit?
A: Criminal and civil lawsuits are different in both objective and in the results.
While a criminal case involves government prosecution of an individual for an act classified as a crime, in a civil suit, individuals or organization bring suit to resolve a dispute or seek damages. In criminal cases, the state acting through a prosecutor must show guilt beyond a reasonable doubt. And the plaintiff In civil cases is required only to show the defendant is liable by a preponderance of the evidence.
If you are convicted of a crime, you may get a jail sentence, may be ordered to pay a fine, or both. However, persons found liable in a civil case may only have to pay money or give up property, but are not sentenced to prison.
Q: What are the steps in a criminal procedure?
- Preliminary Hearing
- Fine, Probation, Jail
Q: What is a booking?
A: A booking is an administrative task in the criminal procedure in which your name, the crime charged, your address, telephone number are recorded. Your photograph will be taken and you will be fingerprinted.
What is an arraignment?
A: An arraignment is the part of criminal procedure in which you, the defendant, appears in court. You are advised of the charges against you, given the police report and accusation dealing with the facts and your involvement in the crime. A police officer, a prosecutor or a grand jury may present the accusation. The final step in an arraignment is entering a plea – guilty, not guilty or nolo contendere, meaning no contest. If you enter a not guilty plea, a trial date is set.
What is bail?
A: At the arraignment, or soon afterwards, you may be detained, meaning placed in jail, until your trial. If you want to get out of jail before your hearing or trial, you are required to post bail. Bail is money paid to the court that is intended to ensure you will show up for your required court appearances. If you appear in court as ordered, the court refunds the bail. The court will keep the bail money, however, if you do not appear at the proper time, and issues a warrant for your arrest.
A local bail schedule lists the amount of bail, according to the seriousness of the criminal offense. If the prosecutor persuades the judge that you are not likely to show up in court, the judge can increase the bail. On the other hand, your defense attorney may convince the judge to reduce the amount of bail if he can shows that you have a family and a steady job and are not likely to flee.
Q: What is a preliminary hearing?
A: When you are changed with a crime, the preliminary hearing is the step in the criminal procedure in which a judge determines whether you should be held for trial. The prosecutor who has brought charges against you will have to present enough evidence to the judge to prove a crime occurred and that you committed the crime.
What happens in a trial?
A: A trial involves opening statements by your defense attorney and the prosecutor. Witnesses are called and questions, and evidence is presents. Your attorney and the prosecutor make closing statements, and the judge then gives the jury instructions. After deliberation, the jury announces its verdict, which may be guilty, guilty of a less serious or related charge or not guilty. Once the verdict is rendered, your attorney may attempt a post trial motion, such as a motion for a new trial.
What is a sentencing?
A: If you have entered a guilty plea to committing a crime or when a jury finds you guilty by trial, a hearing is set and the judge reads his sentence. A sentence may consist of a set time in jail, a fine or both.
What is probation?
A: Probation is the suspension of the jail sentence. Sentencing for a crime may include an order to pay a fine and/or to serve a time in jail. If you are given probation, you are released, and rather serving time in jail, you are returned to the community and for a specified period you will have to abide by conditions set by the court and are under the supervision of a probation officer. If you violate your terms of probation, the probation, the probation is revoked and you can be sent directly to jail.
What is an appeal?
A: When you are convicted of a crime, you may have the right to appeal your sentence, in what is referred to as an appellate proceeding, if you and your attorney believe improper procedure occurred during the trial, for example, or if new evidence surfaces later that may prove your innocence.
As soon as you are charged with a crime or learn you are under investigation, it is vital to retain an attorney at the outset to protect your legal rights throughout the criminal proceedings brought against you. At Bailey & Galyen, there is no charge for an initial consultation with a criminal defense attorney. Call our law firm at 855-410-2088, when you need an experienced criminal defense attorney at your side.