Arrested? What Next?

When investigating your case, we direct outside investigators to use state of the art databases and equipment to uncover critical information and evidence to defend our clients. Some of the techniques commonly used in criminal defense cases include:

Crime Scene Investigations

• Photographs/Videos
  
• Sketches, Diagrams and Measurements
  
• Witness Interviews
  
• Follow Up and Development of Leads
  
• Police Interviews
  
• Fire/Rescue Ambulance Interviews
  
• Victim Interviews
  
• Secondary Forensic Evidence Testing
  
• Witness/Suspect Location
  
• Polygraph Examinations and Interpretations
  
• Background Investigations of Involved Parties
  
• Confidential Informants and Sources

Pre-File Investigations

• Polygraph Examinations and Interpretations
  
• Police Investigations
  
• Psychological Experts
  
• Photographs of Location and Victims
  
• Locating Other Wrongly Accused Individuals
  
• Computer/Internet Experts
  
• Confidential Informants and Sources
  
• Public Record Searches

1. Prevent filing.
2. Reduce Charges; ie, felony to a misdemeanor.
3. Divert allegations into an informal resolution.
4. Ease clients' concerns about the case.
5. Keep clients apprised of legal rights.
6. Assist with surrender and avoid arrest

C. Ways to prevent charges from being filed

1. Bolster client's credibility
   1. Private polygraph - if the results are favorable, then they will be shared.
   2. Reference letters from community leaders, religious leaders, teachers, friends, etc.
2. Attack complaint credibility of the victim
   1. Use other witnesses to question the reputation and truth of the victim.
   2. Unsubstantiated allegations against others made by the victim.

• Process of a Criminal Case
• What is an Arraignment
  
• What Happens to the Defendant at the Arraignment
• Differences Between Misdemeanors and Felonies
  
• Misdemeanor: The Arraignment To Appeals Process
  
• Felony: The Arraignment to Appeals Process
  
• Plea Bargaining
  
• Understanding Bail
  
• Legal Terms and Meanings

To begin with, you do have the right to an attorney (legal representation), whether the attorney is an appointed public defender or you hire an aggressive and experienced attorney/firm such as Adult Legal Services to represent you. It's your choice. Be aware that the law contains a seemingly infinite number of loopholes. The right to a fair and speedy trial and the right to be provided a specific statement of the charges are two other very important rights of a defendant.

Your constitutional rights include:

• Right to a Lawyer
  
• Right to Cross Examine and Confront Witnesses
  
• Right to Testify on One's Own Behalf
  
• Right to Remain Silent
  
• Right to Speedy Trial
  
• Right to Use Courts Subpoena Power to Compel Witnesses to Testify
  
• Right to a Jury Trial (in Most Cases)
  
• Presumption of Innocence

What is an Arraignment
An arraignment is where the defendant is read specific charges against him. It is the first step in the criminal process. All arraignments are conducted after the suspect is arrested and booked by law enforcement.

What Happens to the Defendant at the Arraignment?
The arraignment is the time where the judge will ask if the person appearing is the person identified in the charges. In addition, the judge will ask whether the defendant will plead not guilty. It is highly unusual that a defendant would plead guilty at the arraignment.
At an arraignment:

1. The defendant will be provided with written charges.
2. The defendant will be asked to state his identity.
3. The defendant is entitled to counsel.
4. If charged with a misdemeanor, the defendant is required to reply to the written charges with a plea of either guilty, not guilty, or no contest. If charged with a felony, the defendant may or may not be required to reply with a plea at the initial arraignment.
5. In a misdemeanor case, the judge will set the defendant's tentative appearance schedule. In a felony case, the judge will set the defendant's tentative preliminary hearing.
6. Bail is set. The defendant has a right to argue for a bail reduction.
7. The discovery process begins. Discovery at the arraignment usually consists of a police report and a complaint. Some states do not provide discovery until after the preliminary hearing or indictment.
8. If the defendant pleads guilty at the arraignment, the judge may sentence the defendant at that time.

Differences Between Misdemeanors and Felonies
Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trials are held in the state's lower court, sometimes referred to as Municipal Court.

A felony crime is punishable by one year or more in 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.

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. Once the preliminary hearing is completed, a trial date is established.

It is recommended that the defendant obtain 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.

Misdemeanor: The Arraignment To Appeals Process

Arraignment
The defendant may plead guilty, not guilty or no contest. If the defendant pleads guilty or no contest, he or she can expect to be sentenced. Very few cases are dismissed at arraignment. Once the arraignment is completed, the defendant prepares for trial in Municipal Court.
Pre-Trial Conference
This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, pretrial motions and other factors in the case, such as the defendant's character and prior criminal history.
Municipal Court Trial
Each state has different rules for trials in Municipal Court. Some states provide the right to choose between a trial by judge or jury. Others do not allow the defendant a jury trial in misdemeanor cases.
Sentencing
The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or heavier 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 sentencing the defendant.
Appeals
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to review specifically identified errors 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, and been sentenced. Once the trial has been completed, the facts have been decided. They cannot be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper procedural issues, he may be able to win the appeal. Note that the timeline of the appeals process varies from state-to-state.

Some post conviction tactics to get relief for the defendant include:

Felony: The Arraignment to Appeals Process

Arraignment
The arraignment in a felony is identical to that in a misdemeanor case. Bail and identity are established, charges are ascertained and the attorney of record is confirmed. Very few cases are dismissed at arraignment.
Pre-Preliminary Hearing
This involves a meeting between prosecution and defense. Topics discussed in most states include plea bargain opportunities, strengths and weaknesses of the prosecutions case, and other factors, such as the defendant's character and past history.
Preliminary Hearing
At the preliminary hearing the judge determines whether sufficient evidence exists to send the case to the upper court for trial. The judge: 1) Decides whether there is probable cause to believe a crime was committed; 2) Decides whether there is probable cause to believe the defendant committed the crime.
Superior Court Arraignment
The defendant is arraigned and pleads guilty, not guilty or no contest. At the arraignment, the identity of the defendant is confirmed, bail is established, charges are ascertained and an attorney of record is confirmed.
Pre-Trial Conference
The pre-trial conference is a formal setting where plea bargaining occurs. The prosecution may offer alternative sentencing. The charge may be changed to a lesser charge. The number of felony counts may be dropped. A lesser punishment for the same charge may be agreed upon.
Trial
A jury trial is the fact finding phase of the case. It is the in-court examination and resolution of a criminal case. At the trial a decision will be reached as to the innocence or guilt of the defendant. Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. The trial begins with the prosecution's opening statement. The defense attorney may also present an opening statement at this time. The prosecution presents his case to support the charges and then rests. The defense presents his case to refute the charges and then rests. Closing arguments by both the prosecution and defense conclude the presentation part of the trial. The jury then deliberates innocence and guilt.

In a trial, expect the following to occur:
1. Jury selection
2. Opening statements presented by the prosecution and the defense
3. The prosecution presents their case
4. The defense cross examines prosecution witnesses
5. The defense presents their case
6. The prosecution cross examines the defense witnesses
7. Closing arguments are presented by both the prosecution and the defense
8. The prosecution, defense attorney and judge decide on specific instructions to the jury
9. The judge instructs the jury on rules
10. The jury deliberates
11. The jury submits their verdict

Sentencing
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.

At sentencing:
1. The judge almost always determines punishment.
2. The judge may be required to follow specific sentencing guidelines.
3. The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
4. Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
5. A previous criminal record, use of a dangerous weapon, and the type of conviction may persuade the judge to provide a harsher sentence.
6. Judges almost always give repeat offenders harsher sentences.

Circumstances that Can Adversely Affect Sentencing:
Most states carry statutes which call for harsher penalties if a defendant's crime involves the use of a dangerous or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. These enhancements generally increase the sentencing penalties.

Appeals
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to reverse the lower court's decision. The appellate process is primarily limited to correcting flaws in procedure and not to change a trial courts finding of fact. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict. The timeline of the appeals process varies from State-to-State. However, time limits do exist. In death penalty cases, the appeals process is automatic.

Plea Bargaining
95% of all cases end in a plea-bargain. Plea-bargaining is an excellent way to avoid a potential harsh conviction in favor of an agreed upon lighter conviction.

The prosecutor has the burden of proof. The defendant is innocent until proven guilty. During the trial, the prosecutor must present a case that convinces the judge or jury beyond a reasonable doubt that the defendant is guilty.

The charges filed against the defendant at arraignment may be different from those originally filed by the arresting police officers.

It is critical that the attorney and defendant manage the details. Cases are won and lost in the details.
In many cases it is advisable to hire an investigator to design and implement a sound strategy to put the details on the defendant's side.

The appeals process works differently state-by-state. However, in most states, an appeal goes from the Criminal Court to the State Court Of Appeals to the State Supreme Court.

The defendant must manage his attorney. The defendant must make sure he understands what the attorney is doing, and why he is doing it, before it is done. The defendant can't wait until after the attorney presents the defense to inquire as to the course of action.

Understanding Bail
Bail is a method to get the defendant released during the trial proceedings. 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:
1. Is the defendant a danger to the community?
2. What is the likelihood the defendant will flee?

Bail release options include:
1. Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.

2. Release On Own Recognizance. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.

3. Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.

4. Property Bond. The court records a lien on the property of the defendant to secure the bail amount.

What if I don't like my public defender?
A request for a new public defender is rarely granted. The defendant's rights are limited to the appointment of an attorney and not to the attorney of their choice. The defendant must prove to the court that representation is sub-standard, even incompetent. That may be done through claiming personality conflicts, or differences in communication, ethics, strategy, or through a potential bias.
What if I think the judge or prosecutor is biased?
The defense attorney may ask the judge to recuse himself (withdraw from the case) or he may file a motion with the court. In some states it is the automatic right of the defendant to recuse a judge on the basis the defendant believes the judge to be biased.