Criminal Defense FAQ
- When is an arrest warrant issued?
- When can I be released after I am arrested??
- What are my rights at the time of my arrest?
- What are Miranda Rights and how does one get them?
- After I am told my rights, can I be questioned?
- What are the implications of a Miranda violation?
- What are my rights while in custody?
- When should I see a criminal defense lawyer?
- Choosing a criminal defense lawyer
- What are some things I should ask my lawyer?
Usually, an arrest warrant is required before you can be taken into custody from within your home. Law enforcement may arrest you in your home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property.
An arrest warrant must be signed by a magistrate or judge, who must have good reason to believe that you committed a crime. Once an arrest warrant is issued, any law enforcement officer in the state can arrest you even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock, identify him or herself and tell you that you’re going to be arrested. If you refuse to open the door, the officer may use force to enter. If the police have an arrest warrant, you should be allowed to see it. If they don’t have the warrant with them, you should be allowed to see it as soon as is practical.
Upon arrest, the police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.
Resisting an arrest or detention is a crime. If you resist arrest, you may be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not be recorded as an arrest.
Upon arrest, every person has certain rights to which they are entitled.
Before a law enforcement officer questions you, he or she informs you of your rights:
You have the right to remain silent.
Anything you say may be used against you.
You have a right to have a lawyer present while you are questioned.
If you cannot afford a lawyer, one will be appointed for you.
These are your 5th Amendment Rights, also known as Miranda rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. Although the court may agree to suppress your statements, this does not necessarily mean that the state will dismiss the case against you. Volunteering information without being questioned is not a Miranda rights violation and such statements made to law enforcement will be used against you at trial.
There is at least one version of Law & Order on television at any given moment during the day. We have all seen Detective Stabler or Lenny recite the now infamous: “You have the right to remain silent. You have the right to an attorney. Anything you say can and will be used against you.” The recitation has become common place within the fantasy frames of television, as well as in the harsh reality of the world we live in today. However, this was not always the case.
In 1966, in Miranda v. Arizona, the Supreme Court of the United States held that “the Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.”
The warning is an absolute prerequisite to interrogation. A person in custody and subjected to interrogation has a right to be informed of his Miranda rights. He must be informed in clear and unequivocal terms that he has the right to remain silent.
Derived from the Due Process rights under the Fifth Amendment of the United States Constitution, California courts have recognized and upheld an individual’s right to remain silent and right to an attorney for more than 40 years. These rules are designed to protect against compulsory self-incrimination.
As citizens, we all hold these rights (as governed by the Constitution) and do not have to do anything special or extra to receive them. The law is on our side. DO NOT be hesitant to exercise your Miranda rights, if you need to.
Police may question you, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, the officers must stop questions you as soon as you say so or as soon as you say that you want a lawyer. If the police continue to question you after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different.
In some cases, you may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver’s license will be suspended and the refusal will be used against you in court.
Once you have been booked (meaning your arrest has been written into official police records, and you have been fingerprinted and photographed), you have a right to make and complete three free telephone calls within the local dialing area. Any additional calls made from jail must be collect calls.
A defense attorney must inform the court and prosecutor of the Miranda violation to have a hearing on the matter. A superior court judge will then review the facts of the case to determine whether the peace officers involved violated any of the Miranda rules. The prosecution may not use incriminating statements stemming from custodial interrogations of the defendant, unless it demonstrates the use of procedural safeguards.
The interrogating officer may be called to testify whether or not prior to any questions, he informed the defendant that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney (either retained or appointed). If it is determined that these rules have not been adhered to, the statements will be suppressed and deemed inadmissible at trial.
A person may, of course, waive his Miranda rights, provided the waiver is made voluntarily, knowingly, and intelligently. The important thing is to know your rights!
If arrested, protect your rights by remembering these points:
- Do not discuss your case with anyone other than your lawyer. Not even your friends, family members, or cellmates. What you say can be used against you.
- Do not call or make any contact with any law enforcement agency, district attorney, or city attorney without first discussing it with your defense attorney.
- Immediately identify and locate any potential witnesses that may have any information that will help your lawyer.
- If contacted by any law enforcement officer, immediately and politely refuse to answer any questions without your lawyer present.
- Never consent to any search or turn over anything to law enforcement without consulting with your lawyer first.
- Everything you tell your lawyer is confidential and cannot be used against you. Be truthful and communicate thoroughly with your lawyer.
Right to an Attorney – Defendants have the right to an attorney throughout legal proceedings. The court will appoint an attorney for the defendant at no charge if he/she cannot afford to hire one. Yet, at the end of the case, a defendant may be asked to pay all or part of the cost for the attorney, if he/she can afford to.
Right to a Jury Trial – Defendants have the right to a speedy, public jury trial. At trial, the defendant is presumed innocent, and cannot be convicted unless 12 impartial jurors have been convinced that the defendant is guilty beyond a reasonable doubt.
Right to Confront Witnesses – Defendants have the right to confront and cross-examine all witnesses testifying against them.
Right Against Self-Incrimination – The defendant has the right to remain silent, to prevent self-incrimination, and the right to testify on their own behalf.
Right to Produce Evidence – The defendant has the right to present evidence and to have the court issue a subpoena to bring into court all witnesses and evidence favorable to them, at no cost to them.
If you are arrested for a crime you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on the bail process.
It is very important to hire a lawyer immediately. Time is not on your side. The sooner your lawyer gets involved on your side the better off you will be regardless of the charges you are facing.
Your lawyer’s personality and demeanor are very important. Look for a confident and tough lawyer that has a good reputation with the prosecutors and judges involved in your case.
There is nothing worse than a lawyer with a bad reputation as being a “dump truck”. A dump truck lawyer is a lawyer that just takes whatever deal they initially get from the prosecutor. Make sure the lawyer you are hiring is not a dump truck.
For those of you who are considering representing yourself (Pro Per), you are making a big mistake. There is an old saying that goes: ‘He who represents himself has a fool for a client’. Don’t make that mistake. Although you have a legal right to, you are seriously putting yourself at a great disadvantage. Because criminal laws change all the time, almost on a daily basis, it is important to consult with a criminal defense lawyer immediately. Certain criminal convictions can have serious consequences on your life. BE AWARE.
Not only should you hire a good lawyer but you should also be a good client. That means you should inform yourself and actively participate in your defense. Ask questions and be honest and straightforward with your lawyer. Remember what you tell your lawyer is privileged. Our firm philosophy is such that we work together as a team with our clients to obtain the best results.
Finding the right attorney is definitely one of the most important life decisions you will ever make. The first thing you must remember when selecting an attorney is that you will definitely need a criminal defense specialist (i.e. attorney) whose primary (if not exclusive) practice is dedicated to defending criminal cases. Do not make the mistake of utilizing someone who represented you in a civil matter. In fact, any reputable attorney will (or at least should) immediately refer you to a criminal defense attorney.
You must hire the most skillful and experienced attorney that you can afford. Trial experience is especially important, whether you are guilty or completely innocent of the charges. Your attorney must be experienced in investigating and preparing motions concerning search and seizure law, motions to dismiss following a preliminary hearing, or reducing a felony to a misdemeanor, etc. Keep in mind, a vast majority of criminal cases do not go to trial, but are instead settled through negotiating. Your attorney must therefore be respected by local judges and prosecutors with whom he or she will be negotiating.
Before you make a final decision to retain a lawyer to defend you, ask him or her to explain a defense strategy and why he or she believes it will be successful. And, again, DO NOT DELAY!!! Time is not on your side (something you should constantly keep at the forefront of your thoughts). The sooner you get an attorney involved in your case, the better off you will be. It does not matter whether you are guilty of all the charges, some of them or if you are completely innocent. You still must find and retain the best lawyer you can afford.
Perhaps the best advice we can offer is that, no matter which attorney you select, or if one is appointed to you, be sure that the attorney clearly understands your case. You should always have your attorney explain exactly what happened to you so that you are sure he or she clearly understands the truth in full. Do not let your attorney prepare a defense based solely on what the prosecutor claimed happened! Do not think that your attorney is going to take care of everything! You absolutely have to play an active role in your defense. You are the one going to jail if you lose, not your attorney.
- What are the charges against me? And what are the consequences if I am found guilty? What are some sentencing alternatives?
- What are some of my potential defenses and how will they apply to the facts of my case? What is the defense strategy? Plea bargain – Motions – Trial
- How many similar cases have you handled and what have been some of the outcomes?
- What kind of evidence will The State present against me and how will you obtain this evidence (Discovery)?
- How much defense investigation will need to be done and at what cost? What can I do to help?
- What is an expert witness and will I need one? How much will it cost?
- What can I do right now to improve the outcome of my situation? Should I enroll in any classes? Should I obtain employment? Should I seek any medical attention?
- What if any evidence can be excluded based on improper police conduct? Do the current search and seizure laws apply to my case?
- How should I act in court, in front of witnesses, with probation officers, and prosecutors?
- What can I discuss with my friends and family members? How should I deal with those issues?