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Criminal Defense FAQs
Is Hiring a Criminal Defense Lawyer Really Worth It?+
Hiring a criminal defense attorney is worth it because most ordinary people don’t know the process very well; their greatest struggle is with just not knowing what to do. The judge and the prosecutor are not there to represent them, as the defendant; they have no one to actually look out for their interests and no one to answer their questions, they go into the case not knowing.
One of the greatest benefits to hiring a criminal defense attorney is that they know the process. They know whether or not the plea is a good one. They can answer most of your questions, and they will minimize the stress levels a defendant will experience.
Why Do judges Think Defending Yourself in a Criminal Case is a Horrible Idea?+
If I had to put myself in a judge’s shoes and determine the worst part of a pro per, which is a defendant who defends themselves, it would have to be that they don’t know any of the rules and they don’t know the proper way to ask the court to do something. Often, the court can’t do anything because they’re supposed to be in the middle, unbiased, and if you don’t ask them to do what you need them to do and you can’t provide them with the proof and a worthy explanation for your request they may not be able to grant it.
For example, suppose a lot of medical stuff has happened, and the defendant needs more time to prepare their case. That defendant doesn’t know what proof they need to give to the court, or how to ask for what they need, but if they don’t do that, they won’t get the continuance they need.
There have been times when a client has taken as much as six months to prepare and needs to go back to court to get a few months more. But the court can’t do that if the prosecutor is objecting, and they don’t know how to ask the right way, or provide the proof they need in order to get the time.
When people represent themselves, their requests are often denied because they don’t know the rules of evidence, and the court can’t just admit stuff for you if you don’t follow the rules.
Public Defender, Private Lawyer or Self-Representation, Which is Best?+
Honestly, I wouldn’t recommend you defend yourself because you don’t know what you’re doing. It’s the same reason I wouldn’t recommend fixing tour roof yourself or filling your own cavity; do-it-yourself is rarely the best idea, especially when it comes to criminal law, since the case can have a lasting impact on your career obviously public defender over representing yourself.
Between a public defender and a private attorney, that comparison gets a bit complicated, because there are really good public defenders who will do a really good job, and there are lousy private attorneys, as well. You don’t really know, so you have to do your research.
Generally speaking, the main difference between a public defender and a private attorney is that the private attorney’s business relies on making you happy, because an unhappy client won’t refer others or give them good reviews, and that directly impacts their business and their reputation.
On the other hand, public defenders often don’t know when their clients are unhappy and they often have so many cases, they may not even remember who you are later, and you are unlikely to remember who they are, either. Since word-of-mouth is very important to the legal profession, private counsel might be a better choice.
Another important difference is that you will always have direct access to a private attorney, while you may not have access to your public defender too often, so if you have questions or concerns, you may not get the answers and information you want or need until your next court date.
I once had a client who came to me after dealing with a public defender who had made him wait almost seven hours without even seeing them. He then tried to email the public defender the very next day just to find out what the plea was so that we could determine if it was a good idea for him to hire private counsel or stick with a public defender. We couldn’t get hold of the public defender, and received no response for more than a week.
The Cops Didn’t Read Me My Miranda Rights. Can you Have My Case Dismissed?+
It depends on the type of evidence you want to suppress, since Miranda suppresses statements only. If you are not told that what you say can and will be used against you, then what you say can’t be used against you. Now, there’s a doctrine called fruit of the poisonous tree, which would suppress any tangible evidence that was obtained because of the violation of Miranda, so whether the case can be dismissed depends on a lot of things. I’ve seen people’s Miranda rights violated and the case wasn’t dismissed; it largely depends on what type of evidence was obtained from the violation of your rights.
Are Miranda Rights Even Viable For Criminal Cases in 2015?+
Obviously they’re important. The police are supposed to read the alleged suspect their rights, and they do that quite often. Of course, they don’t have to read Miranda rights if they don’t plan to ask incriminating questions.
People are only entitled to be read their Miranda rights if they are in custody and the officers want to ask incriminating questions or if the adversarial process has begun, meaning there’s an investigation. If they show up at someone’s house and want to ask questions, there’s already been an investigation or a complaint and they’re looking for evidence to perhaps indict them, so Miranda would be relevant at that time, whether or not someone has been handcuffed.
If someone is not Mirandized, whether or not the case is affected depends on the facts, the interview with the officer and what type of evidence is available to prove the client’s rights were violated and they were affected in a negative way. It’s not an automatic dismissal. In fact, for the most part, even if Miranda rights are violated, the chances of a case being dismissed are still pretty slim.
How Do You Get An Acquittal or a Dismissal On A Criminal Case?+
A not guilty plea would obviously be delivered before either a bench or a jury trial. A case dismissal can happen either before trial or after what’s called a Rule 20 motion, which happens right after the State has presented its case. That’s a directed verdict from the court where basically the judge is saying, “Look, the prosecutor put on their case and there wasn’t enough evidence to convict you here.” Then the defense doesn’t have to present a case.
For me, I’d rather have a case dismissed prior to trial, because it’s preferable to not have to go to trial. Statistically speaking, defendants don’t fare well at trial; the state wins most of them. Therefore, getting a dismissal before trial is usually better.
Sometimes, a dismissal isn’t a good thing, however. Sometimes, prosecutors use case dismissals to buy themselves more time; they’ll simply dismiss the case and re-file. That confuses many defendants, who often think the dismissal means their case is done, which it isn’t.
A dismissal should happen for a valid reason. For example, I just had a case dismissed yesterday. I walked into a pretrial conference, obtained the police report and noticed that the stop was unconstitutional and spoke to the prosecutor, who is going to dismiss the case. That’s a legitimate dismissal because it’s based on the facts and legal issues in this case.
On the other hand, a couple of months ago a client’s blood wasn’t in, and the case was dismissed. The client was really excited, but I had to explain to her that it was going to be re-filed.
How Do You Deal With A Warrantless Search?+
When it comes to warrantless searches, DUI and criminal cases are different. In DUI cases, if they don’t have a warrant, there’s often implied consent, and if you refuse to consent to a breath or blood test, you’ll lose your license for a year and they’ll just get a search warrant anyway.
In criminal cases, never consent to a warrantless search; make them get a warrant. Don’t let them in your house, and don’t let them search your car. They may sound polite, but they know you don’t know any better, so they will just ask you to let them search. With respect to anything criminal, never ever consent to a search without a warrant, ever.
What’s the Difference Between a Misdemeanor and a Felony?+
Misdemeanors are generally less severe than felonies. And in Arizona – Arizona has a number based system that describes the severity of the crime alleged. So misdemeanors are divided into class 1, 2, and 3 misdemeanors, and they have different ranges for the penalties. So for example, class 1 misdemeanor has a maximum of six months jail whereas a class 3 misdemeanor has a maximum of 30 days jail. Felonies are more serious than misdemeanors and they are also classified by this number based system. So they’re divided into class 1, class 2, class 3, class 4, class 5, class 6 felony. Class 6 felony being known as least serious; class 1 felony being the most serious, ensuring the most consequences – sentencing wise.
What do People do Unintentionally to Hurt Their Case?+
A lot of people can see cooperation with the police as meaning they have to tell them everything. You don’t need to always need to tell the police everything that they ask. Sometimes you can ask to speak to an attorney or to say, ‘I don’t feel comfortable answering that question’. A lot of people think that cooperation means answering every single question the police officer asks of them, and that’s not necessarily true. Or doing everything that the police officer asks of them. Such as in a DUI case, you don’t necessarily need to do the field sobriety test – you can say no to doing that. Just, I always say to be polite and be cooperative but you also need to be mindful of what you’re telling the police and what you’re doing.
If I Get a Call From a Police Officer or a Detective, What Should I do?+
The first thing I tell people is if you’re anticipating getting a call from a police officer or a detective, try to hire counsel before that time so that everything can go through them. So that the police or the detective’s aren’t directly going to that person involved, instead they have to actually speak to the attorney, or the attorney has to be present when they are speaking to the person. If they are to not have that option, and are going to speak with the police officer or detective, I would always say be mindful of what is said – don’t reveal too much information. Say that you’d like to look into hiring counsel, and that once you do, you would like counsel to be present for any discussions.
What Does it Mean to be Indicted?+
For stage of a criminal process – it has several stages. So you can be arrested, booked, then there can be a complaint, and then there’s an indictment. And an indictment only occurs after a grand jury has met. A grand jury is generally a group of people who have been summoned to appear to a grand juror, at grand juror’s for three days a week, for two to three times a month. They roughly hear thirty different stories or cases a day which are presented by a prosecutor, and then they get to decide whether to issue a true bill. So once a true bill has been signed, it determines that a probable cause exists, and an indictment will be issued. So the indictment can either be served in person or by certified mail. So if you’ve moved, the summons will be returned to the court and a warrant will be issued for your arrest. Eventually you’ll either be picked up by an officer who show up at your new address, or more likely you’d be stopped several years down the road for, say a minor traffic violation, and then be taken to jail.
How Does Bail Work, and How is Bail Set?+
Bond can be accomplished by the officer telling you what you’re bond amount is according to a bonding schedule. Or it could involve going in front of the judge, and generally when you go in front of the judge: you can make an argument, you can have an attorney present that can argue what you’re bond amount should be, and then the judge can set your bond’s amount.
What is the Advantage of Hiring an Attorney Versus a Court-Appointed Attorney?+
Court-appointed attorneys generally have a large case load. So when they’re given a day, depending on what stage your case is at – if it’s at the initial stages and you’re going through the initial process at court – on any given day, the court-appointed attorney can have 8-10 cases. Once it’s up in the trial group, those attorneys have anywhere from 20 to 50 cases – which is a heavy case load to pay special attention to your case. When you hire a private attorney, you’re generally getting very private attention for your case. The case loads aren’t as high so we’re able to concentrate on doing the more in-depth case analysis, interviewing officers, seeing whatever experts are needed – there’s just more time in which to focus on a case that court-appointed attorneys don’t necessarily get.
What are the Alternative Punishments to jail?+
So diversion is something that the State can offer in lieu of jail or having someone do jail. or even prosecuting a case. That’s where the state will agree to suspend prosecution for a set period of time, to allow a person to attend an appropriate counseling program. And after that if they meet all those requirements of that program, then the charges can be dismissed. Also the prosecutor can decide in lieu of jail that the person should just do probation in a case. If they’re just assigned probation – and no jail – then all they would have to comport with is the requirements of probation. Other ways to avoid jail are home detention programs which are sometimes offered in misdemeanor cases, or house arrest.
How Does Probation Work? And What Happens if I Were to Violate Probation?+
Well probation is usually the following: you’re not allowed to drive; you’re not allowed to consume alcohol – and this also in regards to a DUI – you have to pay off fines and fees; you need to do certain counseling. There’s two different types of probation: there’s supervised probation or unsupervised probation with compliance monitoring. If it’s supervised probation, you’ll have to check in with a probation officer. That officer might come to your house, have a surprise visit; they may have you do a breath test; or just even knock on the door and tell the person to blow into a device; they can do a search of your home. So that is what probation would do. You can always qualify for early release from probation if you’re doing well. And in most cases of felonies, people can be released from their terms after serving half of their time. If you violate probation, then what can happen is – again, if you don’t comply with all the terms of your specific probation, or you violate – such as drinking alcohol, possessing firearm, committing a new crime, failing a urinalysis test or failing to appear when required – you’re probation officer can file a petition to revoke probation. So the probation officer can issue an immediate warrant for a defendant’s arrest. The defendant will be arrested and held non-bondable until a probation violation proceeding is finalized.
If My Miranda Rights Were Not Read to Me, Does That Mean My Case Will be Dismissed? If Not, How do Miranda Rights Actually Work?+
A lot of people believe that they can beat their case if the officer doesn’t read them their Miranda rights – this actually isn’t true. The only time an officer has to read a person their Miranda rights is when a person has been placed under arrest and the officer is about to question the person about a crime. So for example, if you’re placed under arrest and you’re confessing to having contraband; you do not need to be read your rights unless they want to question you about an unrelated crime. They don’t have to tell you about the right to refuse searches. So if you consent – an oral consent is valid. So again, Miranda rights have to be read to you if you’re under arrest and then if they’re questioning you about something and those questions are likely to elicit a response.
What Happens if I Were to Violate Probation?+
So if a defendant’s been sentenced and they’re now on probation and not in custody, he or she is expected to comply with all the terms of probation. So those terms could include drinking alcohol, not possessing a firearm, not committing a new crime, failing your analysis test or failing to appear when required. If someone does not meet these terms, the probation officer can then file what’s called a petition to revoke probation. And in addition, the probation officer can issue an immediate warrant for that person’s arrest. That person could then be arrested and held non-bondable until the probation violation proceeding is finalized.