Do you Know your rights ?
Your 8th Amendment right is the right to bail.
Your 5th Amendment right is the right to council.
- You have the right to testify on one’s own behalf.
- You have the right to remain silent.
- You have the right to a speedy trial.
- You have the right to a jury trial (in most cases).
- You have the right to use courts’ subpoena power to compel witnesses to testify.
- You have the right of presumed innocence.
- You have the right to cross examine and confront witnesses.
Things the defendant should expect from his criminal defense attorney:
- The defense attorney must ethically and actively defend his or her client.
- The defense attorney must present all options to his or her client with recommendations and professional opinions.
- The defense must prepare his or her client completely for each step in the legal process, but also, the defendant must assist his or her attorney. The defendant must make sure he or she understands what the attorney is doing and why he or she is doing it before it is done. The defendant cannot wait until after the attorney presents the defense to inquire as to the course of action.
- The defense attorney must review all possible defense scenarios and evidence and interview all witnesses in support of the client’s case.
- The defense attorney must develop a theme to the defense. The theme is composed of a powerful defense strategy and a course of action to present reasonable doubt or otherwise minimize exposure or punishments.
How to plea bargain a good deal:
Remember: the burden of proof is always on the prosecution or State
- The defense must show responsibility for the crime is minimal.
- The defense must show the impact of the crime elicited little damage.
- The defense must explain mitigating circumstances that led to the crime.
- The defense must establish weaknesses in the prosecution’s case, such as lack of evidence, or lack of witnesses, or factual inconsistencies.
- The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
- The prosecution and defense must mutually desire a reasonable settlement.
- The impact on the defendant’s family or dependents would be a hardship.
Bail is a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:
- Is the defendant a danger to the community?
- What is the likelihood the defendant will flee?
In order to get the bail reduced, the defense attorney should do the following:
- Demonstrate the potential crime is not one that the defendant would do again.
- Demonstrate the defendant is not a danger to the community.
- Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways:
- Character references
- Community support
- Stable employment history
- Memberships in religious or civic organizations
- Surrendering the defendant’s passport
- Agree to electronic monitoring
The court can present several bail release options. These may include:
- Cash Bail. The defendant is responsible for paying the entire amount of the bail to be released and receive this amount back at the completion of all court appearances.
- Release on own recognizance. If the judge is convinced the defendant is not a risk, he or she may release the defendant on his or her own recognizance.
- Surety Bond. The bail agent guarantees to the court that they are responsible if the defendant fails to appear.
- Property Bond. The court records a lien on the property of the defendant to secure the bail amount.
The Difference Between Misdemeanors and Felonies:
The consequences for misdemeanors and felony convictions are entirely different. The defendant must understand which crime he or she has been charged with in order to understand what will happen if convicted.
Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trails are held in the state’s lower court, sometimes referred to as Municipal Court. Examples of misdemeanor crimes include drunken driving, disorderly conduct, and shoplifting.
A felony crime is punishable by one year or more in a state prison or a penitentiary. Felonies begin in the state’s lower court system but may move up to the state Superior Court, or higher court. Examples of felony crimes include murder, rape, and armed robbery.
The misdemeanor and felony arraignment processes are virtually identical to one another with one exception. In the misdemeanor arraignment process, a pre-trial in Municipal Court is the next step following arraignment. In the felony arraignment process, the next step is a pre-preliminary hearing or a preliminary hearing.
It is recommended that the defendant receive legal representation prior to arraignment. A public defender may have little time to review the case before arraignment or may not even be assigned the case until arraignment. Preparation is key to a successful defense. A private attorney can meet with the defendant prior to arraignment, review the case, and provide the defendant with step-by-step options prior to the arraignment process.
The majority of all cases end in a plea bargain. Plea bargaining is an excellent way to avoid a potential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant’s successful completion of a rehabilitation program. Some judges and prosecutors are open to plea bargaining, whereas others are not. Plea bargaining enables the judges to move cases through the legal process quickly and increase convictions for prosecutors.
This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, strengths and weaknesses of the prosecution’s case, pre-trial motions, and intangible factors of the case such as the defendant’s character and past history.
The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court. In addition, in some jurisdictions, the court may ask for a report from the probation department prior to the sentencing of the defendant.
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to review specifically identified flaws in procedure with the possibility of changing the lower court’s decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict.
Once the trial has been completed, the facts have been decided. They can’t be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper issues, he or she may be able to win the appeal. These defects in procedure may include any of the following:
- The judge’s instructions to the jury were improper
- The prosecution made improper comments to the jury
- Jury tampering
- Improper introduction of evidence
The expunge process differs from state to state. Expunge is a legal term for sealing the criminal record. By having a criminal conviction expunged, the conviction will deemed not to have occurred. However, in some cases, even an expunged record is still open for law enforcement purposes. In addition, applicants campaigning for public office or applying for a federal job are required to make their conviction public, even if it was expunged.
Disclaimer for Attorney Resources
This is from excerpts from Miller and Associates (now Imhoff and Associates); criminal defense attorneys (Understanding the Criminal Process from Arraignment to Appeal) booklet. Copyright 2002. All rights reserved.
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