Criminal Case FAQs
Below you will find a list of criminal defense frequently asked questions (FAQs). This portion of the website was purposefully drafted to make the law simple to understand. Call our firm if you have any additional questions.
What Is an Arrest?
An arrest is the taking, seizing, or detaining the person of another by any act which indicates an intention to take him or her into custody and subject the person arrested to the actual control and will of the person making the arrest.
The term “arrest” may be applied to any case where a person is taken into custody or restrained of his or her full liberty, or where detention of a person in custody is continued for even a short period of time.
The terms “arrest” and “apprehension” have been used interchangeably as being synonymous when employed in connection with the taking of a person into custody.
The term arrest has a technical meaning that is applicable in legal proceedings. It implies that a person is thereby restrained of his or her liberty by some officer or agent of the law, armed with lawful process, authorizing and requiring the arrest to be made.
A seizure of a person, within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution, occurs when the police conduct would communicate to a reasonable person, taking into account all of the circumstances surrounding the encounter, that he or she is not at liberty to ignore the police presence and go about his or her business.
What Are My Miranda Rights?
The prosecution may not use statements stemming from custodial interrogation of an accused in the absence of procedural safeguards to protect the Fifth Amendment privilege against self-incrimination,1 and the decision of the United States Supreme Court in Miranda v. Arizona requires that an accused be given certain warnings before being subject to custodial interrogation. Specifically, an accused must be warned that he or she has the right to remain silent, that anything said can and will be used against him or her in court, that he or she has the right to consult with a lawyer and to have the lawyer with him or her during interrogation, and that if he or she is indigent a lawyer will be appointed to represent him or her.
However, the Miranda advisement need not be given in the exact form described in the Miranda decision, and it is enough that the advisement reasonably conveys to the suspect his or her rights as required by that decision. The purpose of Miranda warnings is to enhance the accused’s ability to exercise his or her Fifth Amendment rights knowingly, intelligently, and voluntarily, and those warnings were developed to protect a defendant’s constitutional right not to make incriminating confessions or admissions to police while in the coercive environment of police custody. Statements made during a custodial interrogation generally must be excluded upon a showing that the defendant was not advised of his or her Miranda rights.
What Is Bail and How Is It Set?
The amount of bail – money or other security deposited with the court to insure that you will appear – is set by a schedule in each county. For some traffic citations, you may be notified that you can forfeit or give up bail instead of appearing in court.
However, if you have any doubt, go to court so that a new warrant is not issued for your arrest for failing to appear. (For traffic citations, a “bail forfeiture” works as a conviction for the violation.)
Bail forfeiture does not apply to misdemeanors and felonies, however, and you must appear in court. If you fail to appear in court, your bail will be lost and a new warrant will be issued for your arrest. Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. You will have an opportunity to request a bail reduction or a bail review hearing when you appear in court.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear (even for traffic tickets), any previous criminal record and your connections to the community, as well as the probability that you will appear in court. Generally, the amount of bail is set according to a written schedule based on your charges.
Instead of paying bail, you might be released on your own recognizance or “O.R.” (or “supervised O.R.”). This means that you do not have to pay bail because the judge believes you will show up for your court appearances without bail.
Adult v. Juvenile Court, What Is the Difference?
it is a common question that has very important consequences. The answer varies depending on what state you are talking about. Generally, juvenile courts refer to those courts that hear cases involving persons under eighteen (18) years of age. This is not a hard rule.
Depending on the facts of the case, it is quite common for persons under 18 to be charged as an adult; this is particularly true in serious or violent cases. The judge makes the decision to try a person as an adult.
Judges hear and handle most juvenile cases (the right to a jury trial only applies to adults). Though not entitled to a jury trial, juvenile’s still enjoy all fundamental rights such as due process. These rights include having a lawyer present, being tried by a fair and neutral court, notice, right to call witnesses, right to remain silent, etc.
In some states, juvenile crimes are not called “crimes;” rather juvenile’s commit delinquent acts. Trials are called adjudication hearings.
6A C.J.S. Arrest § 1
Civil Court v. Criminal Court, What Is the Difference?
There are significant differences between civil and criminal courts. Put simply, civil courts are those courts where private parties litigate cases. Usually in the form of plaintiff versus defendant. Civil cases usually revolve around money or injunctions (make a party do/stop from doing something.)
Criminal courts handle those cases concerning crimes. The government (not a private party) prosecutes all crimes. It does so on behalf of the public.
The most glaring differences between these two courts are: (1) the defendant in a criminal court faces jail time, and (2) the standards of proof are different. In criminal courts, the standard of proof is one of reasonable doubt. This is a very high standard. There is a strong presumption of innocence. In civil courts the likely standard of proof is preponderance of evidence (or in some cases by clear and convincing evidence). In a nutshell, preponderance of evidence means that a party (usually the plaintiff) must prove that a fact more than likely occurred. This is a very low standard. Clear and convincing lies somewhere in between the other two standards.
How Is the Standard of Proof Different in Criminal Court From Civil Court?
The Bill of Rights (first ten amendments) deems criminal allegations quite severe and serious. As such, it is much harder to convict someone of a crime than it would be to find someone liable in a civil court.
In civil courts, the judge or jury will answer whether plaintiff has proven that it was more likely than not that the defendant acted wrongly. This is the preponderance of the evidence standard. In criminal courts, the government must prove the accused’s guilt beyond a reasonable doubt.
What Is the Difference Between a Felony, Misdemeanor, and Infraction?
These three types of wrongs or accusations vary greatly.
The federal government (as well as most states) deem a felony to be criminal wrong that carries a sentence of more than one year. A misdemeanor carries a sentence of one year or less.
What Do I Do When I Appear in Court?
You will need to make an initial appearance. This often referred to as an arraignment. At court, you will enter a plea of guilty or not guilty. Dates will be set for future court appearances. You will be made aware of the charges and whether you will remain in or out of custody. If you have not hired a lawyer or cannot afford one, the court will appoint one for you.
If I Am Still in Custody, Will I Get Released Before Trial?
It depends. The judge will make the determination of whether you are to be released (or remain released). Usually two issues will be discussed to determine whether you will be released pending trial. First, whether you are a danger to the community. Second, whether you are a flight risk.
How Does a Plea Bargain Work and What Is It?
Plea agreements are formal legal documents where the defendant and prosecution agree on the charges and what defendant will plead guilty to. Pleas usually involve a “deal” in which the government will drop charges in order for defendant to plead guilt to others. Sentencing issues are also usually part of the bargain. However, you should realize that the court is never a party to the plea and does not have to accept its turn. Talk to an attorney about everything concerning a possible plea.
Can the Police Hold Me Forever?
For any hold the police usually need to have probable cause that you committed a crime. However, the police may not hold you just because they suspect you have committed a crime. The prosecutor must charge you formally in order for your to be officially held. The police can, however, hold you a short post-arrest and before charges are filed, usually 24-48 hours after arrest.
What Is the Procedure for the Filing of Criminal Charges?
In state court in California, the government will likely file what is called a complaint at the outset of the case. Later, they would be required to file what is called an information. An information is essentially the same as a complaint; it just comes after the preliminary hearing. If your case concerns an infraction you may only be charged via a citation. In federal court, charges are initiated by either a complaint or an indictment.
I Have Heard of a Grand Jury, What Is That?
In roughly half the states, grand juries are used to implement criminal charges against person accused of felonies. This is also true of the entire federal court system. Grand juries are simply a group of ordinary people who gather together to determine whether there is enough evidence to press charges. The proceedings are secret and many of your rights, such as the right to have an attorney present, are extinguished. Since each state is different, you should speak with an attorney about whether your state utilizes grand juries and the specific procedures.
Do I Have to Attend Court if Criminal Charges Have Been Field?
Not always. Generally, you do have to appear on felony charges unless the court gives you permission to no be present. For misdemeanors, your presence is usually not required.
Are There Any Defenses I Should Present in My Criminal Case?
Defenses are an intricate part of the criminal case process. You and your attorney should always look into possible defenses. Put simply, a defense is something that negates an element of the crime. Crimes require a guilty mindset (mens rea) and volitional act (actus reus). An example would be self-defense. If you simply intend to defend yourself, you do not have the guilty mind associated with the crime (like intent to kill).
There are defenses that apply to each criminal law. However, most defenses do not apply in every case. Criminal defense is a very complicated area of the law. It is best to speak with your attorney about whether you have a legitimate defense to the crime charged. Common defenses include things like: entrapment, insanity, incapacity, intoxication, self-defense, and necessity. There are more.
Can a Mental Impairment or Condition Effect My Defense?
In the United States, an incompetent person cannot be tried criminally. That is, the accused must be able to understand the charges so that he or she can take part in their own defense. To determine competency, the judge often orders a physiological examination.
Call or message Nicco Capozzi, a California criminal attorney, if you have any questions.
I Have Heard of Civil Discovery, Is It the Same in a Criminal Case?
“Discovery” is the name provided to the procedures that grant the parties of the case (government and defendant) to exchange information and gather evidence.
Despite what you may have seen on television, there is almost never a “smoking gun.” There are really no surprises either. Each side is entitled to know and examine every piece of evidence that relevant to the case.
Discovery also includes name of witnesses intended to be called at trial along with any reports associated with those witnesses.
In Criminal Cases Are There Things Like Depositions?
Generally, no. Interrogatories are simply written questions parties in a case (usually civil) serve each other. Depositions are basically interviews that allow the parties to ask questions, usually in person. Request for admissions are exactly what the name implies: request by one party, to the other, to admit a certain fact. Request for admissions are never used in criminal cases and depositions only slightly.
Does the Court Have Any Control Over Whether I Plea or Not?
A judge cannot force you to do anything. No one can. If you plead not guilty, the judge must accept that absolutely and proceed accordingly. If pleading guilty, the judge will take steps to ensure you understand your plea, whether you have been forced or promised anything, etc. You must enter a plea knowingly and voluntarily.
What Occurs at a Criminal Trial?
The first thing done is jury selection. Unless, of course, the defendant and government agree on a bench trial (by judge not jury). Once the jury is agreed to (through complex juror selection rules), the jury is “impaneled.” Then the parties conduct opening statements: a process by which the government and defendant are allowed to explain to the jury what the evidence will show at trial. It acts as an introduction to the case. Next, the government presents their case through testimony and/or by admitting physical evidence. The defense can cross-examine any witness the government calls. The defense is not required to put on any defense of its own because the government has the burden to prove the charges beyond a reasonable doubt. If the defense decides to introduce its own evidence, it will do so after the government finishes. The last stage is called closing argument. During closing arguments, the parties take turns argue what the evidence presented at trial means.
In Federal Court How Many Jurors Decide the Case? in California?
In federal criminal court the defense is entitled to twelve jurors. California is the same. But states are not necessarily required to use twelve jurors.
Check with a criminal attorney concerning your state's procedure.
When a Jury Deliberates What Do They Do?
The judge will give the jury the law before it deliberates. Jurors are instructed that they must follow the law as given. Their sole role is to determine the facts. The deliberation process is completely secret. To return a guilty verdict, all the jurors must agree. The same with a not guilty verdict. Anything less is considered a hung jury.
If Convicted, What Are the Procedures for Sentencing?
Sentencing is done by the judge not the jury. After trial, the probation department will usually prepare a report and present sentence recommendations. The parties then argue to the judge (or they may agree) on what the sentence should be. In misdemeanor cases sentencing may be done immediately. In most states, the judges have wide discretion on sentences whether it be a fine, probation or jail term. The criminal code will almost always include the range of possible sentences. For instance a minimum of two years and maximum of six years; within that timescale the judge has wide discretion. In federal court, there is a very complex formula to which judges usually must follow. For instance, in federal court, there may be mandatory sentences where the judge has little or no discretion.
What Are Some Tips on How to Gather Evidence for Criminal Trial?
There are several types of evidence that can used at trial. Often, the strongest evidence is physical evidence such as a weapon, strand of hair, DNA, fingerprints, etc. As such, make an attempt to preserve all evidence you can. Talk to a lawyer about what to do with each piece.
Can Every Type of Evidence Be Used Against Me at Criminal Trial?
The government can usually use almost any type of valid and legal evidence against you. Physical evidence is often the strongest. But testimonial evidence is perhaps the most common. This included testimony from a witness. There are literally hundred and hundreds of rules and entire areas of law that control this issue and whether evidence is admissible. This is why an experienced lawyer is so important.
What Is a Witness and How Are They Used at a Criminal Trial?
All parties in court, both the government and defendant, may present witnesses. A witness can be anyone who has personal knowledge of the facts of a case. There are generally two types. Lay witnesses testify about their personal experience of the facts of the case. They can testify about what they saw or heard. Expert witnesses do not have direct knowledge of the facts (did not see or hear for instance) but can testify according to their opinion based on their expertise.
What Is a Subpoena?
A subpoena is a legal order compelling you to attend court (or produce evidence). Since it is an order enforceable by the court, you should take a subpoena very seriously. If you do not obey the subpoena, you may be held in contempt of court and have to pay a fine or be sent to jail.
Can I Be Made by the Court to Testify Against My Will?
It depends. If you are a witness or the victim of a crime (not the defendant), the court may force you to testify. However, you always have the right to not testify if doing so would violate the Fifth Amendment’s right against self incrimination. You may also hold a privilege that would prevent you from testifying. Or you may have immunity, which would impact your testimony.
If I Am the One Charged, Do I Have to Testify?
Absolutely not. After speaking with your attorney, it will always be your choice about whether you want to testify. No one can force you to do so, not even the court. Not only can you not be forced, the court must instruct the jury that your choice not to testify can not be used against you whatsoever.
If I Am Convicted on Criminal Charges, What Happens if the Law Changes Later?
You may be able to have your conviction overturned. If the law simply changes it will be difficult to get your case thrown out once a conviction is in place. However, if a right possessed by you gets interpreted differently after conviction you may have a decent shot at getting the case thrown out or at the very least have the chance for a new trial.
Do I Need to Hire a Lawyer for My Criminal Appeal?
You do not need to have an attorney but is almost always advisable. Additionally, you may want a different lawyer to handle your appeal than the one who handled it at trial. Appellate law is quite different than trial work. Then again you may want the same attorney as they are most familiar with a case. Like the right to having a lawyer at trial you have the same right on appeal. As such, if you cannot afford one, one will be appointed for you.
I Have Heard of the Writ of Habeas Corpus but What Is It Exactly?
The great writ involves very old (dating back to Magna Carta) and complex areas of law. It literally means “you may have the body.” When a habeas writ is filed you are challenging the but not directly. The writ is civil, not criminal, mechanism by which you claim some right of yours was violated at trial. Usually this takes the form of ineffective assistance of counsel. Writs are hard to battle and complex. Since time is really at issue with writs, you would need to speak to an attorney quickly about the best course of action.