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Criminal Defense FAQs

What Are The Top Misconceptions People Have About Being Arrested?

When people are arrested I often hear people say that they were not read their Miranda rights and therefore their case should be thrown out. I try and explain to potential clients that many times Miranda rights are not required to be read and explain the nuances of Miranda law. I assure them that we will thoroughly investigate whether there was a Miranda rights violation and if so, we will use it to our advantage. Another misconception people have about the criminal justice process is that only people who are guilty of committing crimes are arrested. This is not true.

When someone is arrested for a crime they are presumed innocent until, if ever, a court or jury determines they are guilty. Many people are arrested for crimes when they are factually and legally innocent. An arrest is not an indication of guilt. Often times when someone is arrested for a crime they think their life is over and they are a bad person. I try to explain to potential clients that just because you've been arrested it does not mean you are a bad person, or that one's life is over. Depending on the circumstance, many times people make poor decisions at a time when they're vulnerable. I assure them we will do everything in our power to lessen the effect the arrest has on them and their lives.

How Do People Unintentionally Incriminate Themselves In A Criminal Case?

People incriminate themselves many ways both before and after they've been arrested. The most common way peopled incriminate themselves is by talking to police or any type of law-enforcement officer after they've been arrested or are the subject of a criminal investigation. Usually, when one is being investigated for a crime there is a natural compulsion to want to tell their side or talk to the police officer to explain what happened. This often times can be very incriminating. Even if a police officer does not inform someone of their right to remain silent, you should always speak to an attorney before talking to the police. You should always let the police know you want to talk to an attorney.

Even if you are entirely innocent it's a better practice to not offer information to the police. This is because information can be mis-interpreted and twisted and used against you. The more serious a case is the more pressure police are under to solve a crime and once they've identified a suspect they concentrate all of their resources on that person. Another way people incriminate themselves is by trusting a friend of family with confidential information. Often time's telephone calls are recorded (especially if calling from a jail) and witnesses are pressured to turn evidence against a suspect. As a matter of practice, you should only discuss your case with your attorney.

How And When Do Miranda Rights Come Into Play In A Criminal Case?

When do one's Miranda rights have to been given is probably one of the most mis-understood concepts of the criminal justice process. Clients often say to me that their case should be thrown out because the police didn't read them their Miranda rights. I explain to clients police aren't always required to recite Miranda rights especially if they do not ask them any questions. The general rule is Miranda rights are required when one is in determined to be in custody and are subject to interrogation by the police. Custody and interrogation are legal concepts and there are many legal interpretations of when one is determined to be in custody or not. It's ALWAYS good not talk to police about your case and to make a clear request to make contact with a qualified criminal defense attorney.

How Much Does Having Good Character And Clean Prior Record Impact A Criminal Case?

Having a steady job, family support and community ties weighs heavily on the outcome of one's case. For example, if you are arrested and appear before the judge to determine whether bail should be set or the amount of bail, your job, family and ties to the community will have an effect on whether bail is set and the amount of bail that will be required. Additionally, if you are convicted of a crime, the same factors will be considered when the judge contemplates an appropriate sentence for you. It's always a plus to have a steady job, support of family, strong community ties and generally be a “good” person.

What Is The Difference Between A Misdemeanor Or A Felony?

Generally, a misdemeanor is a less serious crime than a felony. The penalties differ from state to state for misdemeanors and felonies however, a misdemeanor sentence is usually less severe than a felony sentence. A felony conviction has more collateral consequences than a misdemeanor such as loss of voting and possessing firearms rights.

How Does The Process Of Bail Work?

Once you've been arrested you'll see a judge for your initial or first appearance. If you're already released on bail, the judge can leave the bail as currently set or change it. Typically, you won't have to pay all of the bail, should one be set, and have the option of going through a bail bonding company to post the bail for a fee.

What If Someone Feels That They Are Guilty In A Criminal Case?

If you feel you are guilty or believe you are guilty you should ALWAYS consult your attorney before throwing yourself at the mercy of the court. Although you may feel as if you're guilty, there may be something in your case that would provide for a lesser charge or penalty, or even a dismissal. Once your attorney has thoroughly reviewed your case, he or she will be in a position to negotiate a better result in exchange for your admission of guilty. Moreover, you and your attorney need to thoroughly analyze and determine the collateral consequences such admission of guilty will have on not only your case but your life in general. There could be employment and other consequences that may have a long lasting effect on your life from blindly throwing yourself at the mercy of the court.

Should I Hire An Attorney Even If I Plan On Pleading Guilty?

Yes, you should always have an attorney review your case to determine what the consequences are to pleading guilty. Remember, it's the government's case. This means the government has the obligation of proving you are guilty beyond a reasonable doubt. Even if you ultimately plan on pleading guilty you want to make sure you get something in return for making their case easy. Always contact a qualified criminal defense attorney before pleading guilty to anything.

Do Most Criminal Cases Settle Or Do They Go To Trial?

Most criminal cases are resolved without having a trial. You and your attorney will explore the strengths and weaknesses of the government's case, the potential consequences and penalties if convicted at trial as opposed to entering a settlement. Thereafter, you and your attorney will decide what the best course of action is. The ultimate decision of whether to have a trial or not is up to you, the client.

How Does A Prior Arrest Or Conviction Impact A Criminal Case?

A prior arrest, without a conviction, most times will have minimal impact on the case. However, the more one has on their criminal record the greater impact it will have. This can manifest in more than one way. For example, police may not give you the benefit of the doubt if you have a criminal history. Charges can be enhanced if there is a criminal history and prosecutors may be less inclined to resolve cases more favorably for you if you have a criminal history. Lastly and importantly, penalties can and most likely will be more severe if you have a criminal history.

Are There Any Alternative Programs Available To Criminal Offenders?

Yes, there are many alternatives to jail such as fines, probations, deferred judgments and diversion programs. Each of these outcomes is case specific and depends on your age, history, and severity of the crime. It's always important to contact a competent attorney to determine the appropriate course of action.

What Should Someone Look For When Hiring A Criminal Defense Attorney?

There are many competent criminal defense attorneys. You want to hire an attorney who has experience and knows when to push a case to trial or whether to negotiate for a settlement. Also, it's important to engage an attorney who you feel comfortable talking to and who is non-judgmental and will work hard for you.

What Sets Your Firm Apart In Handling Criminal Cases?

We, at The Smith Law Firm have over 14 years' experience in criminal law and over 25 years' experience working in the criminal justice system. Because we used to be prosecutors, we know how they think and how they examine cases. We won't take your case unless we feel we can obtain a result that you are comfortable with an in your best interest.

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