Criminal Defense FAQs

A: Hiring an experienced criminal defense lawyer is not only worth it, but absolutely essential. Many crimes are presumptive. When you’re talking about your freedom, living at home, sleeping in your own bed, eating at your own dining room table and getting up and going to work in the morning versus months or even years in the Department of Corrections, it is absolutely worth it to have an experienced criminal defense lawyer represent you when you face criminal charges. How do you know if you have the right lawyer? You need to meet with lawyers face-to-face, you need to share with those lawyers the facts and circumstances of your case, you need to ask the lawyers if they have ever handled a case involving the same or similar charges to yours and you need to ask the lawyers if they have ever tried a case before a jury involving the same or similar charges to yours.

Some lawyers handle a great number of cases over the course of their career but all they do is capitulate to whatever the prosecutor is willing to offer. Some lawyers have handled a hundred cases and pled all of them out to whatever the prosecutor was willing to offer with virtually no fight. Find a lawyer who has tried cases involving charges you face to a jury, ask them if you may see motions and pleadings that the lawyer has written and filed and argued to the court.

You want to make sure the lawyer is well versed in the case law and in the facts surrounding the type of charge that you face. These are not decisions anyone should make quickly; that’s perhaps the most important piece of advice. People are naturally very nervous and very upset at the beginning of a criminal case when they are first arrested and when they post bond, but they seem to get a significant sense of relief when they hire a lawyer, they feel like they can hand the problem off to an expert and not have to worry about it.

Don’t let the desire for quick or short term sense of relief by handing your problem off to a lawyer get in the way of taking the time to make sure you’re handing your problem off to the right lawyer. Take your time, meet with lawyers at their office, don’t be content to simply interview lawyers over the phone, see where they practice, what their office looks like, see how they present themselves and how they answer your questions, including the terms, terminology and word choice they use. It’s a very important decision, and not one you should make quickly.[/mpaper

A: Certainly, defending yourself is the worst, so we can just take that one off the list right away; you are far better off having a court-appointed lawyer represent you than to try to handle it yourself. The practice of law is far too complex for someone with no legal training or experience to handle the case responsibly. Many public defenders are very good lawyers and if you do not have the resources to hire a private lawyer, you very well may be appointed an excellent lawyer to handle your case – meet with your public defender, ask that they make time to meet with you in person, talk to them about the case.

In some situations and some jurisdictions, the public defenders are simply so overworked that it’s a matter of time and availability, not knowledge and expertise. If that’s the case, you may have to do whatever it takes to hire private counsel who will have the time to spend with you on your case, to get the best outcome possible.

A: Possibly, but probably not, because recitation of rights pursuant to Miranda has nothing to do with the validity of the arrest or the probable cause to make the arrest. People are entitled to recitation of rights pursuant to Miranda only if they are being questioned while in custody, so if you’ve made an incriminating statement while you were in custody at the time, your lawyer may be able to file a motion to prevent the prosecutor from using that statement in court, but other than excluding a statement that you’ve made after arrest, the issue of Miranda has little to do with the legitimacy of the arrest or the probable cause to take you into custody.

A: Make sure you contact several lawyers, make appointments to meet them at their office and hire the right lawyer for your case. There may be many lawyers in town who are absolutely qualified to handle any number of cases, but there may be an element of evidence in your case that a lawyer is unfamiliar with. Make sure they understand the charges you face, that they have handled similar cases in the past, that they have filed pleadings or motions in similar cases, and that you’re working with a lawyer who understands not just general criminal defense, but specific defenses based on the charges you face.

A: In order for police to conduct a search for evidence of crime, they must either have a warrant authorizing the search or valid probable cause to conduct it. In the absence of valid probable cause or a written warrant, officers may not conduct an evidentiary search and prosecutors may not rely on evidence obtained by police without a warrant and without probable cause. These issues are all Fourth Amendment issues, so make sure you talk to a lawyer who has extensive experience researching, drafting and arguing Fourth Amendment motions. Ask that lawyer to produce suppression motions that he has filed and argued in court before; these are complicated issues, you need to be dealing with counsel who understands Fourth Amendment issues and has successfully argued these issues in the past.

A: The time to shut up is as soon as you see flashing lights in the mirror; if you are stopped by police officers, do not agree to make a statement or answer questions, there is absolutely nothing you can say without the assistance of counsel that will do your case any good. The officer is only there to collect evidence and assist the prosecution in securing a conviction, so the time to shut up is before the officer even walks up to you. One-word answers, production of driver’s license identification, yes sir, no sir, is fine, but once the officer starts to quiz you about where you’re coming from, where you’re going, who you’ve been with and what you’re doing, don’t answer any questions – it won’t help.

A: Depending on the charges you face, it is possible to negotiate for a contract of probation instead of serving time in jail; the jail sentence will be suspended pending your successful completion of probation, although, if you violate the terms, restrictions or conditions of probation, the court can revoke the probation and order you to serve the underlying jail sentence. Another option is house arrest; there are some offenses for which the statute allows serving a certain number of days or clock hours on house arrest instead of serving time at the county jail. Other options exist for which a court may remand someone to an inpatient or a residential treatment program; where they can receive treatment, maintain a job and an income as opposed to simply sitting in jail.

A: The time to fight the case is after thorough and exhaustive screening of all of the evidence and the requisite case and statutory law. You need to know which evidence can be suppressed pursuant to the Fourth Amendment, which statements may be properly limited or excluded, and which evidence may not be available to the prosecutor. Often, people will consider just pleading guilty and pleading for mercy without ever analyzing the sufficiency or even the admissibility of the evidence. Once I know what evidence will actually be admitted against my client and I can assess whether or not that evidence is sufficient to support the conviction, only then can I determine as the lawyer whether or not this client should enter a guilty plea pursuant to terms and conditions or whether we should try the case. You simply can’t answer that question without all of the groundwork on file.

A: The first thing would be criminal history; your lawyer has to know whether or not you’ve been arrested, charged with or accused of a crime, whether you’ve ever pled or been found guilty and whether or not you’ve ever participated in diversion or another deferred prosecutor program. A lawyer has to know your criminal history to properly assess the risk you face in any given case and they have to know all of the facts and circumstances of the case; you can’t withhold something you think might disappoint the lawyer, you have to tell them everything. It’s better to know that in the conference room weeks before the next hearing than to discover that fact in open court when there’s absolutely no time to deal with it.

A: A common mistake is thinking you can explain your situation to the officer or talk your way out of the charges or the citation at the scene of the crime or the traffic stop. Don’t make statements, don’t offer explanations, and don’t provide information. Other misconceptions are that people don’t need a lawyer and they can handle the case themselves; always hire a lawyer, never talk to police.

A: The big difference has to do with caseload; many public defenders are very skilled and experienced, but unlike private attorneys, they don’t have control over their caseloads. If the court appoints a client, they accept the appointment and handle the case. So, often you’ll have competent, experienced lawyers who simply have far too many files open at one time to devote the necessary time and attention to any one given file.

A: Ask the lawyer if they have ever handled a case involving the same or similar charges. Ask if they have ever had to file preliminary motions or pleadings with the court addressing various evidentiary issues, if they can provide copies of pleadings they have written and filed, and how many of these cases actually go to trial rather than simply accepting whichever plea offer the prosecutor is willing to make. If you’re facing serious charges, it’s your future; you deserve to know these things, and a good lawyer will gladly answer all of these questions for you.

A: An attorney will want to know all of your criminal history, and they’ll want you to walk them through factually, sequentially everything that happened leading up to the arrest. That’s a very good start.