Facing criminal charges can be scary, particularly the first time you are arrested. For normally law-abiding citizens, a bad decision or moment of inattention can result in an arrest that can change their lives.
Fortunately, fear of the unknown can be addressed by talking to an experienced criminal defense lawyer. Criminal defense lawyers spend their careers working within the criminal justice system and can guide you through the process of addressing criminal charges.
Here are seven things to expect when facing criminal charges:
For the police to make an arrest, they have to observe a crime or have probable cause to believe that you committed a crime. This means that if the police receive a complaint, they cannot just arrest you. Instead, they have to establish probable cause by investigating the crime and finding evidence that points to you.
For example, if a police officer sees you enter a smoke shop, buy cigarettes, and give those cigarettes to a minor, the police officer has observed a crime (depending on your state) and can arrest you. However, if a smoke shop owner calls the police and says that he saw you buying cigarettes for minors, the police must investigate and develop evidence whether it happened the way the shop owner reported it. The police might interview witnesses, review security tapes, and talk to you. If the police uncover evidence of a crime, you can be arrested. Without any evidence, an arrest would be improper and any charges could be thrown out.
When you are facing criminal charges, one of the first defenses a criminal defense lawyer will examine is whether the police had probable cause to arrest you. If the police lacked probable cause, your charges will be dropped.
Moreover, while law enforcement investigates crimes, it must abide by the U.S. Constitution’s protections for criminal targets. For example, law enforcement must also have probable cause to obtain a search warrant. As a result, searches conducted strictly as a fishing expedition without probable cause are improper and any evidence uncovered by them will be thrown out.
Similarly, law enforcement cannot question you without a lawyer present unless you are free to leave the interview or you waive your right to legal representation. If you are detained by police and you ask for a lawyer, the police must stop the interview and allow you to talk to your lawyer.
Arrest and Booking
When you are facing criminal charges, the police may reach a decision to arrest you. An arrest occurs so the police can physically contain you while charges are filed against you. When you are arrested, you will be informed that you are under arrest and the police will inform you of your constitutional rights to remain silent and to have legal representation. The Miranda warning comes from a case in which the U.S. Supreme Court ruled that every person who is under arrest must be warned of their constitutional rights. If this warning is not given, any evidence collected by the police after your arrest can be thrown out of court.
After an arrest, the police can hold you in jail until you see a judge. In many jurisdictions, this means that you will spend at least one night in jail until a judge sets bail. However, in some situations, your lawyer might be able to negotiate a “book and release” in which you are allowed to leave the jail after booking without posting bail.
When you are booked into jail, the jail will collect information about you, like height, weight, and distinguishing features. The jail will also take your photograph, fingerprints, and, in some states, a DNA sample.
In some states, you will be subjected to drug testing to make sure that you are not intoxicated or high before you are placed into a holding cell. Depending on the charges and the wait to see a judge, the holding cell might be the end of your jail experience before bailing out.
However, if you are more than a few days from seeing a judge, you might be transferred into the general population of the jail until your court hearing.
Hiring a Lawyer
It is no myth that you receive at least one phone call when you are arrested. It is also no myth that you should use that phone call to get the ball rolling on hiring a lawyer.
While you could be provided with a public defender if you do not have the means to hire a private attorney, there are advantages to interviewing a few criminal defense lawyers to pick the best one to represent you. A few of the characteristics to look for in a lawyer include:
- Good listener: When you are facing criminal charges, one of the most important parts of your defense is for your lawyer to listen to you and your story. The only way for a lawyer to tell your side of the story is to listen and understand it.
- Dedication to your case: Your lawyer must have the time and interest to handle your case competently. If a lawyer is too busy or is distracted, your lawyer will not be able to advocate effectively.
- Competent: This can be difficult for non-lawyers to judge. However, you can find online lawyer ratings to get a feel for how well a lawyer knows the law. When you need a lawyer with a particular skill set, like a DUI or OVI attorney, you can even talk to past clients.
Arraignment and Bail Hearing
When you are facing criminal charges, the first appearance you will have before a judge will probably be an arraignment and bail hearing. In some states, the arraignment is combined with the bail hearing. The arraignment is where you will be informed of all the charges against you and you will be asked to enter a plea of guilty or not guilty.
At this point in the process, the court will not determine whether you are, in fact, guilty or not guilty. Instead, the court only wants to know whether you plan to challenge the charges or plead guilty. Since this occurs relatively soon after the arrest, you will probably plead not guilty.
This will give you time to meet with your lawyer and plan your strategy. You will also have an opportunity to see the evidence against you, as discussed below. Moreover, your lawyer will have time to negotiate with the prosecution to see if a plea deal is possible or even get the prosecution to drop the charges.
The bail hearing is usually combined with the arraignment and consists of the judge determining whether bail will be granted and, if so, how much bail will be. Bail is intended to give you an incentive to appear at your trial. The theory is that if you have to surrender the property to the court, you will make all your court appearances to get your property back.
Some of the considerations in the bail hearing will be:
- Severity of the charges: Felony charges will usually justify higher bail and misdemeanor charges.
- Danger to the community: If you pose a danger to the community, your bail will be higher or might not be granted. For example, someone charged with murder might be held without bail while someone charged with shoplifting will be entitled to a lower bail.
- Flight risk: If you have a great deal of resources, such as a private jet, you might be considered a flight risk. Conversely, if you have no ties to the community, such as being homeless, you will also be considered a flight risk. If you are a flight risk, your bail will be higher.
The judge might also impose restrictions on your bail and release. For example, the judge might order that your bail be paid in cash if the judge deems you a flight risk. This means that instead of posting a bail bond (explain in greater detail below) you will be required to post cash bail. Another restriction that a judge might impose on your release might be to surrender your passport so you do not leave the country.
The actual process of posting bail is not known by most criminal defendants, including those who have gone through the bail process while facing criminal charges. Most criminal defendants are not able to post cash bail. This means that they need help from a bail bond agent to secure their release from jail while awaiting trial.
Without this assistance, a criminal defendant could wait in jail for months, if not a year or more, for trial. However, with the assistance of a bail bond agent, criminal defendants can secure their release so they can work and take care of family while they are awaiting trial rather than sitting in a jail cell.
If bail cannot be posted as cash, a bail bond can be issued. Bonds are promises. In this case, bail bonds are promises to the court that you will make all your court appearances while you are facing criminal charges. The exchange that occurs is that you pay the bail bond agency’s fee and a bail bondsman promises the judge that you will appear in court. The court then authorizes the jail to release you into the bondsman’s custody so you can go home despite facing criminal charges.
The bail bond company requires you to provide collateral that is sufficient to cover the bail-in case you abscond. For example, if your bail was $5,000, the bail bond company might require you to turn over your car title so they can seize it if you jump bail. For your part, you might have only paid a $500 fee to the bail bond company to provide its assurances to the court, thus saving $4,500.
The bail bond agent will also require you to sign a contract setting out the conditions of your release. This will typically require you to notify the bail bond company of any address changes and check in regularly with your bail bond agent. If you fail to meet these conditions, the bail bond company can protect itself by picking you up and returning you to jail.
However, if you make all your appearances and meet all your obligations under your bail agreement, your bail bond will be vacated and you the bail bond services will return your collateral to you. This will happen even if you are found guilty of the criminal charges you are facing.
Most criminal cases never reach trial. Instead, most criminal charges result in plea bargains where the criminal defendant agrees to plead guilty in exchange for reduced charges or a sentencing recommendation from the prosecution. These plea deals save prosecutors the time and energy to try the case, and reduce the risk to the defendant of a harsh sentence.
If your case does not result in a plea bargain, your case will be tried before a jury. Trials are notoriously unpredictable. However, the process is fairly predictable. the prosecution always presents its case first because it bears the burden of persuasion. The prosecution will examine witnesses and present evidence to the jury. If the prosecution fails to present evidence of your guilt beyond a reasonable doubt, you will be acquitted.
In this respect, you are presumed innocent unless the prosecution proves that you are guilty. However, you are also entitled to present a defense. Your defense can take a few forms:
- Negate the prosecution’s evidence: You can present evidence that tends to disprove the prosecution’s evidence. For example, you can present witnesses that remember events differently than the prosecution’s witnesses.
- Impeach the prosecution’s evidence: You can present evidence that casts doubt on the prosecution’s evidence. For example, your witnesses can testify that the accountant is testifying against you because the accountant could be responsible for the embezzlement for which you are facing criminal charges.
- Present an affirmative defense: You can present evidence of an affirmative defense to the charges, such as self-defense or necessity.
After the cases are presented, the jury renders a verdict. If the verdict is guilty, you will be sentenced by the judge. If the verdict is not guilty, you will be released and any bail bond that you posted, such as a DUI bail bond, will be returned.
Other Legal Issues
People can be confused by criminal liability, which is imposed by the government for violation of criminal laws, and civil liability, which is pursued by damaged parties for failing to uphold a legal duty.
For example, drugs and alcohol is a factor in over 15,000 car accident deaths every year. If a drunk driver causes an accident and injures other drivers, the drunk driver could be facing criminal charges and lawsuits from accident lawyers after it is all over. The lawsuit could land the drunk driver in jail while the lawsuits could result in millions of dollars in damages against the drunk driver and the driver’s insurance company.
While not every person facing criminal charges will also face a lawsuit, it does happen and you should be prepared.
Facing criminal charges is stressful because a conviction could change your life. However, knowing what to expect can help you to take it on. Just keep in mind that hiring a good criminal defense lawyer can be one of the most important moves you can make.