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 FAQ - CRIMINAL LAW
1. Do I really need a lawyer?
Yes, without a doubt. While it is true that in some routine cases a lawyer cannot get a better "deal" than a person representing themselves and pleading guilty can, this is a very dangerous business.
There are many potential legal issues even in the most straightforward misdemeanor criminal case. If there is a problem with evidence, a search and seizure issue, or issues with the calibration of a breath test machine in a DUI, such information will never come forward without the assistance of an experienced criminal attorney.
Of course, in some cases there are no difficulties at all with the Prosecution's case, and the defendant eventually must plead. However, before a plea is entered every possible avenue should be explored as to legal and technical defenses. An experienced criminal lawyer can often work out creative settlements that a person with no legal background, or even an attorney without experience in the criminal field, simply cannot do.
2. I am concerned about going to jail. Are there options?
Yes. Even in the case of a conviction or a plea bargain, a skilled defense attorney tries to obtain alternatives to jail for their clients. Alternatives to jail include:
Electronic Monitoring: Also known as "House Arrest." This involves wearing an ankle bracelet that electronically monitors the whereabouts of the wearer. What most people do not know is that the wearer can usually go to work or to school, but must be home at an appointed time.
Work Release: This involves working at a site determined by the Probation Department. You work during the day, but get to go home at night to sleep.
Work Furlough: This allows you to keep your job and go to work and make a living during the
day. At night, however, you sleep in a dormitory-style facility.
City Jail: Usually costs money, but typically a much more pleasant experience than jail. Also known as "private jail."
Alcohol or Drug Rehabilitation: Sometimes a DUI or drug related arrest is merely the symptom of an underlying addiction issue. For those cases, rehabilitation is a much more attractive option than jail. A skilled criminal defense lawyer will know how to obtain this type of relief for his clients. The defense attorney should stress to the prosecution and the judge that this is a much better solution than jail, and in cases of addiction, a superior alternative.
Sober Living: These are houses, both for men and women, where all of the residents are sober and must maintain sobriety to stay in the house. The structure of each house is different, but residents are usually required to attend a 12-Step meeting daily, participate in house groups, and perform chores. For those people that are multiple offenders and have not responded to past attempts at treatment, this environment may greatly improve the quality of their life. This can often be utilized by skilled criminal defense attorneys to help their client avoid lengthy jail sentences.
Again, only an experienced criminal attorney can make sure that these options are available to you, and can craft resolutions to your matter that maximize the chances of you being placed into one of these alternative programs, rather than jail.
3. What is an arraignment?
An arraignment is the first appearance in Court for a misdemeanor or a felony. At the arraignment the defendant is formally charged, notified of what the charges are, and provided with initial discovery materials which consist of police reports, lab reports, witness statements and the like. At arraignment, the prudent thing to do is to plead "not guilty". There is a common misconception that pleading not guilty at an arraignment may anger the Judge presiding over the case. This is (usually) not true. If charged with any sort of misdemeanor or felony offense, a not guilty plea and consultation with an experienced criminal attorney are absolutely necessary.
4. What can I expect in a misdemeanor case?
Misdemeanors, as well as felonies, begin with the arraignment. Then, depending upon the facts of the case, there can be a number of pre-trial conferences in which a negotiated settlement is attempted, or there may be motions to suppress evidence filed, or discovery motions to force the Prosecutor's office to either dismiss the case or produce additional evidence which may be exculpatory.
The case can then proceed to negotiated resolution or jury trial depending on the facts of the case and the wishes of the defendant. In most cases, the case will not go to trial. Over 90% of criminal cases are resolved without a jury trial, and often this is in the best interest of the defendant.
5. What can I expect in a felony case?
A felony is much more complex than a misdemeanor. There is an initial arraignment, followed by what is called a Preliminary Hearing. A Preliminary Hearing is a mini-trial in which the Prosecution must convince the Judge or Magistrate that sufficient evidence exists to "hold a person to answer" for a felony offense. In today's environment, persons are almost always held to answer in the Court, unless there is a glaring deficiency with the Prosecution's case.
After the Preliminary Hearing, there is another arraignment. Then there are similar steps as mentioned in misdemeanors above, such as pre-trial conferences, motions for discovery or suppression of evidence, trial readiness conferences and then eventually a trial. Again, most felony criminal cases settle without a trial.
6. What can my lawyer do if the charges have already been filed?
First, your lawyer will evaluate the evidence and determine if the government can prove its case against you. Sometimes prosecutors are mistaken about the strength of their evidence and can be persuaded to abandon their case after hearing both sides of the story. Other times, prosecutors can be persuaded to dismiss charges because of changes in the evidence.
If the evidence against you is too strong to obtain a dismissal of charges, your attorney will evaluate whether it is in your best interest to go trial or to obtain a negotiated plea bargain. Only an experienced criminal defense attorney can evaluate your chances for success at trial. If you and your attorney decide to go to trial, your attorney will develop a case to persuade the jury that there is a reasonable doubt as to whether you are guilty of the charges.
7. We use many tools to determine the likelihood of success at trial:
Investigation: While the police gather evidence against you, your attorney will use private investigators to gather evidence to prove your innocence. Proving your innocence may mean learning everything about your accuser. The investigator may discover and interview witnesses. And, may discover evidence which attacks the honesty and credibility of your accuser.
Expert Witnesses: These are used to examine the prosecution's scientific evidence or prepare defense evidence in specialized areas within their scientific fields, such as ballistics, fingerprints, forensics, psychiatry, DNA, and many other fields.
Pre-trial Motions: The right pre-trial motions supported by solid evidence and the law can result in the dismissal of your case, a favorable settlement of the charges, or set the framework for a winning defense.
8. How do I get my loved ones out of jail? Release From Custody (Bail and O.R.)
When you or someone you care about is arrested, we know that one of the first things you want to do is get him out.
In general, when someone is arrested for an infraction or misdemeanor, they may be released with a citation based upon their promise to appear in court on the date scheduled. They are released on their "own recognizance" to appear at all future court dates. If they go to all court appearances, then they never have to worry about bail or being in custody while their case is unresolved. But if they fail to appear in court, a bench warrant will be issued for their arrest and they can be charged with a failure to appear.
Bail is usually more of an issue when it comes to arrests for felonies and "wobblers." (Wobblers are cases that can be charged as either felonies or misdemeanors.) In those cases, while it is possible to be released on their own recognizance, a bail hearing may be required.
Each county has a bail schedule, which lists the bail that applies to each different type of case. It is possible to get that amount lowered, depending upon the type of crime that is charged, and the history of each individual defendant. The court considers such factors as whether the defendant is a danger to the community, and whether or not the defendant is a flight risk.
Bail may be posted directly with the court clerk or law enforcement agency having custody of the defendant, or a bail bondsman may be used. Usually a bail bondsman will require a fee of around 10% of the amount of the bail. The bail bondsman may also require collateral to secure the bond.
A skilled criminal defense attorney can be extremely helpful in getting bail reduced, or helping a defendant to be released on his or her own recognizance.
The information contained in the Chain-Younger Web Site is general in nature and is not intended as a substitute for legal advice. In addition, an
Attorney-Client relationship is not created by viewing this information.
Changes in the law or the specific facts of your case may result in legal
interpretations that are different from those presented. To protect your
legal rights following severe injury or wrongful death resulting from an
accident, it is wise to immediately consult Chain-Younger.
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