Hire an Experienced Criminal Defense Attorney
It is advisable to retain/hire an experienced criminal defense attorney as soon as you are arrested or learn that you are under investigation.
A court appointed attorney or Public Defender is an attorney which is paid by the State or Government and appointed by the Court. Although initially free of charge you may later be held liable for the reasonable value of the Public Defender’s services.
What does it Mean to be Arrested?
An arrest occurs when Law Enforcement issues a Notice to Appear or takes an individual into custody. An arrest must be based upon “probable cause.” Probable cause is a reasonable objective belief that the suspect has committed a crime. Probable Cause is viewed from the perspective of a police officer with specialized training and takes into account the factual and practical considerations of everyday life in which reasonable men act.
During the booking process a person who has been arrested will be fingerprinted, asked for basic biographical information, and have a photo or mug shot taken. One is not required and should not provide any information about the offense(s) for which they have been arrested. One has an absolute right to remain silent.
Pre-Trial Release (Bail)
Bail is initially set pursuant to a schedule established by the Chief Judge of the Circuit. Palm Beach County’s Bail schedule:
SEE ADMINISTRATIVE ORDER NO. 4.202-9/08* SCHEDULE OF BONDS AND PROCEDURES RELATING TO PRE-FIRST APPEARANCES RELEASE
A person arrested for D.U.I. must remain in custody for 8 hours before being released on O.R. or bail. O.R. is Release on Own Recognizance. Supervised Release on Own Recognizance (S.O.R.) requires the accused to report to the court staff one time per week, either in person or by phone.
Bail can be posted in cash. If a cash bond is posted the individual posting the bond will have the entire amount returned when the case is concluded provided the accused abides by the conditions of his bond and makes all required court appearances.
Bail can also be posted through a Surety or Bondsman. The Surety or Bondsman actually post the bond through an insurance contract. The Surety or Bondsman requires a premium of 10% (State Court), or 15% (Federal Court) of the total bond as a fee. This fee is not returned and is the cost of the bond.
An attorney can often suggest a Surety or Bondsman and can contact them on the accused’s behalf.
An accused is entitled to one Motion to Reduce Bond. This can be done at 1st Appearance or at another time.
If an accused is unable to post bail they will be brought before a Judge within 24 hours of their arrest. The Judge will determine if there was probable cause for the arrest and will normally consider some form of pre-trial release. Sometimes the Judge may combine S.O.R. reporting requirements with bail.
If the case is in State Court, the State will normally file a charging document known as an “Information”. If the case is in Federal Court the Assistant United States Attorney will take the case before the Grand Jury and seek an “Indictment”. A Grand Jury is made up of at least 18 people. They will make a determination as to whether the Government’s evidence gives rise to probable cause. If probable cause exists, the Grand Jury will issue the Indictment.
A victim has no authority to drop the charges. Only the prosecution can drop the charges. However, a victim’s opinion, request, or desires may influence the prosecutor’s charging decision. It is usually not advisable to have the alleged victim speak with the prosecutor.
Normally the defense attorney will speak with the alleged victim and prosecutor on the accused’s behalf.
Motion to Set or Reduce Bond
After the First Appearance the next court appearance will be a Motion to Reduce Bond, if necessary. In setting bail/bond, the Judge will consider the nature of the charges(seriousness), the strength of the evidence against the Accused, the Accused previous criminal record if any, and Accused’s ties to the community. Bond is based upon ones dangerousness to the community and his willingness to appear at future court hearings.
At the Arraignment the Judge will advise the Accused of the charges that have been brought against him, that he has a right to an attorney and if he can’ t afford an attorney an attorney will be appointed depending upon the accused financial resources. The Court will then ask the Defendant whether he pleads guilty or not guilty. Normally a not guilty plea is entered.
In State Court, an attorney can enter a Waiver of Arraignment, Plea of Not Guilty and Demand for Jury Trial on an Accused’s behalf. This keeps the Accused from having to appear at the Arraignment. This option is not available in Federal Court.
The discovery process varies whether one is in State or Federal Court.
In State Court the attorney can normally obtain
- police reports
- medical records
- probation reports
- reports of State experts
- audio recorded statements and transcripts
- view physical evidence
- take the deposition of State witnesses
In Federal Court Discovery is much more restricted. The Defense can gain access to
- any exculpatory evidence in the possession of the Government
- certain law enforcement reports
- statements of the accused
- summaries of expert witness testimony
- criminal histories
- 404(b) evidence (evidence of prior crimes committed by the Accused)
Pre-trial Motions are important tools for the defense. They may cause the prosecution to drop the charges, change the prosecution’s position, or seriously weaken the prosecutor’s case.
Pre-Trial Motions can include:
- Suppression of Evidence (illegal searches, eye witness identifications, statements/confessions, etc.)
- Speedy Trial
- Sever Counts or Defendants
A plea bargain in State Court is an agreement between the Accused and the Prosecutor. It normally involves the Accused pleading guilty to specific counts(s) in the charging document or to reduced charges with the understanding that a specific sentence or punishment will be received. The Court must approve the Plea Agreement. If the Court does not approve the Plea Agreement the plea of guilty will not be accepted by the Court or if already entered, can be withdrawn.
In federal Court the Accused will agree to plead guilty to specific count(s) in the Indictment. The Assistant United States Attorney will then move to dismiss the remaining counts. There is no agreement as to the sentence the Judge may impose. The accused will not be permitted to withdraw his plea just because he does not like the sentence imposed by the Court. There may also be agreed recommendations as to specific application of sections of the United States Sentencing Guidelines, such as offense level, acceptance of responsibility, role, etc. However, the judge is not bound to follow these recommendations.
The negotiations involved in plea bargaining are handled by the attorney. The attorney’s reputation and trial skill may have an effect on the plea offer.
Trials normally take place before a jury. In State Court most juries consist of 6 persons, except for Capital cases where the law requires a 12 person jury. In Federal Court juries consist of 12 people.
If both the Prosecutor and the Accused agree the case may be tried without a jury. This means the Judge decides if the accused is Guilty or Not Guilty.
If the trial is a jury trial, the trial starts by selecting a jury. This is known as Voir Dire. A jury is selected by asking various questions of the prospective jurors. The Defense Attorney will attempt to determine any biases a juror may have so that that person can be kept off the jury. The Defense Attorney accomplishes this by the use of Challenges for Cause and Peremptory Challenges. Challenges for Cause are those challenges where it can be shown the prospective juror is biased. A Peremptory Challenge can be used to strike a prospective juror from the jury if a Challenge for Cause can not be proven. Unfortunately, there are a limited number of Peremptory Challenges. The number of Peremptory Challenges depends on the classification of the crime charged.
After the jury has been selected, the Prosecution and Defense have the opportunity to make an Opening Statement. The Opening Statement is like a road map of the case. Each side gets to tell the jury what they think the evidence will prove. Since the Prosecution has the burden of proof they always get to go first. After the Prosecution has presented their case the Defense will normally move for a Judgment of Acquittal. This motion test the legal sufficiency of the evidence presented by the Prosecution. If the Motion for Judgment of Acquittal is not successful the defense then has the opportunity to present evidence. Since the Defendant has the right to remain silent, and that right always stays with the Defendant, the Defendant can not be made to testify. Whether the Defendant testifies in a criminal trial is a decision the Defendant must make with the advice of his attorney.
Once both sides have presented their evidence, both the Prosecution and the Defense will have the opportunity to argue their version of the evidence and what was proved or not proven during closing arguments. The Judge will then instruct the jury on the law that must be applied. The jury will then begin its deliberations in secret. When they have reached a decision they will announce the verdict in open court.
If one is found guilty at trial it will be up to the Court to determine an appropriate punishment or sentence. The Court does this with the aid of a Pre-sentence Investigation Report, the Sentencing Guidelines, and information provided by both the Prosecution and Defense. A sentence can include a fine, probation, court cost, jail or prison. Even if a Defendant is found guilty or pleads guilty there is much work for the Defense Attorney to do in preparing for the sentencing hearing.
Being adjudged guilty of a felony will affect ones life well into the future.
The consequences of being adjudged guilty can include:
- loss of right to vote
- loss of right to posses a firearm
- increased penalties for future convictions
- registration as a sexual offender
- loss of job opportunities
A Defendant convicted in a criminal case has an absolute right to appeal. There are strict time deadlines for filing the Notice of Appeal. In State Court one has 30 days. In Federal Court one has 14 days. If the Notice of Appeal is not timely filed there can be no appeal.
Sealing and Expungement
In State Court, if you are not formally convicted, and you have never been convicted of any crime, you have the right to request that your arrest and court proceeding be sealed or expunged. Sealing means the records are still in the files, but that they are sealed and only law enforcement can look at them without first getting the Court’s permission. Expunged means the records are destroyed.