COMMON QUESTIONS
FREQUENTLY ASKED QUESTIONS
- What Happens After A Conviction?
- What Is An Appeal?
- What Happens At An Arraignment?
- What Is Bail?
- What Happens At A Bail Hearing?
- What Happens If I Am Arrested?
- Can They Use Force To Arrest Me?
- Will I Fingerprinted or Have to Be In a Line-Up?
- If I Am Arrested, Should I Hire An Attorney?
- What Is A Miranda Warning?
- If I Am Not Under Arrest, Do I Have To Answer a Police Officer's Questions?
- Must A Police Officer Always Advise A Person Of Their Miranda Rights Before Asking A Question?
- If I Am In Custody, How Do I Assert My Right To Remain Silent?
- What Is The Fourth Amendment?
- Does The Fourth Amendment Protect All Searches?
- Can I Waive My Miranda Rights?
- But The Police Officer Said That If I Talked, He Would Help Me Out?
- Can I Answer Not Guilty Even If I Am Guilty?
- What Is A Plea Bargain?
- What Will Happen At A Preliminary Hearing?
- Can I Be Arrested For Questioning?
- What Is A Search Warrant?
- What Is Probable Cause?
- If A Police Officer Knocks On My Door And Asks To Search My Home, Do I Have To Let The Officer In?
- What If I Agree To The Search?
- What Is The Plain View Doctrine?
- If I Am Arrested, Can The Officer Search Me?
- What Is The Sentencing Hearing?
What Happens After A Conviction?
In most cases, after either a plea of guilty or a finding of guilt after trial, the following options may be available:
- Motion for new trial OR Motion to withdraw guilty plea.
These two motions must be addressed on a case-by-case basis, but both motions attempt to set aside the conviction. - Appeal
Again, the facts of each case must be examined to determine if one can bring an appeal and, if so, whether it would it have merit. - Modification of sentence
It is possible in some cases to come back before the sentencing judge and ask for modifications on some of the terms and conditions of probation. - Expungement
In some cases, after a person has successfully completed the terms and conditions of probation, it may be possible to appear before the court and have the conviction expunged or removed from your record.
What Is An Appeal?
A defendant who is found guilty of some or all charges is entitled to an appeal to at least one level of appellate court. There are several levels of courts to appeal to; an example would be appealing to the circuit court of appeals first and then up to the next level. This can potentially continue on until it reached the Supreme Court of the United States . An appeal is a formal request that a higher court review the decisions or actions of a lower court. The defendant that is found guilty in the lower court usually makes an appeal. Some grounds for an appeal may include insufficient evidence, violation of rights or possible mistakes made by the judge or even how the jury handled the case.
What Happens At An Arraignment?
You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set.
If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.
Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling
If misdemeanor charges are not dropped, a trial will be held later in county court of law. If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.
What Is Bail?
Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.
What Happens At A Bail Hearing?
The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results. A judge holds an official arraignment later.
There are four possible results from the bail hearing:
- Recognizance - This is the defendant's written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required.
- Unsecured Bond - This release pending court appearance is based on the defendant's written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
- Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
- Ineligible for Bail - The defendant is denied a release pending court appearance.
The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.
What Happens If I Am Arrested?
If you are arrested for breaking a criminal law, the case is taken before a magistrate who may issue a warrant if necessary and set bond for appearance in court. If the defendant cannot post the bond he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with, told their constitutional rights, and of the possible penalties. The defendant will enter a plea of guilty or not guilty, bond may be reviewed, and a date for the next hearing will be scheduled.
Can They Use Force To Arrest Me?
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.
Will I Fingerprinted Or Have To Be In A Line-Up?
If you are arrested, the police have the right to take your fingerprints and photographs. You may also be required to participate in a line-up, to provide a sample of your handwriting, to speak phrases associated with the offense or to have samples of your hair taken. You may insist that an attorney be present.
If I Am Arrested, Should I Hire An Attorney?
You may be entitled to a Court Appointed Attorney at Public expense if you qualify as an indigent person. An indigent person is one who cannot hire an attorney without causing substantial hardship to himself/herself or dependent family. If you have been charged with a crime, you may complete an Affidavit of Indigence and Request for Court Appointed Counsel at your first court appearance. If you qualify, an attorney will be appointed for you. If you are convicted of a crime, the court may require you to repay some or all of the cost of your defense if it determines you are able.
What Is A Miranda Warning?
A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answer any questions.
If I Am Not Under Arrest, Do I Have To Answer A Police Officer`S Questions?
No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual.
Must A Police Officer Always Advise A Person Of Their Miranda Rights Before Asking A Question?
No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.
If I Am In Custody, How Do I Assert My Right To Remain Silent?
A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect`s 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court.
What Is The Fourth Amendment?
The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states, The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
Does The Fourth Amendment Protect All Searches?
No. Before a court will even entertain the possibility that the search in question was unreasonable, the person being searched must have had a legitimate expectation of privacy. To determine whether the defendant had a legitimate expectation of privacy the courts will look at the following factors: (1) did the person subjectively or actually expect some degree of privacy, and (2) is the person's expectation objectively reasonable, that is, one that society is willing to recognize?
Can I Waive My Miranda Rights?
Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court.
But The Police Officer Said That If I Talked, He Would Help Me Out.
This is something police officers always say. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge.
Can I Answer Not Guilty Even If I Am Guilty?
You are innocent until you are proven guilty. Your lawyer may think that the evidence against you is not enough to prove that you are guilty. You may have a better chance if you have a trial. You have a trial only if you plead not guilty.
What Is A Plea Bargain?
Settling a criminal case is usually called a plea bargain. It means that the prosecution and the defense come to an agreement to resolve the case. The case can be settled at several points during the process, from before it is charged all the way to trials doorstep. Usually, however, the best bargain can be obtained earlier rather than later in the process. But usually doesn't mean always. And in many cases it is a question that should be analyzed immediately so that good opportunities to settlement aren't given up because of pride or inattention.
What Will Happen At A Preliminary Hearing?
Every person who is charged by warrant is entitled to a preliminary hearing. If a person remains in jail, he or she is entitled to a preliminary hearing usually within 10 days of arrest. If a person is released from jail on bond, he or she is entitled to a preliminary hearing usually within 30 days of arrest.
A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes.
If the judge makes a finding of probable cause after hearing the evidence, the charge is sent to the grand jury. If the judge does not find that it appears that an offense has been committed or that the accused is likely the person who committed an offense, the accused is discharged and the charge is dismissed. If the accused is discharged and the charge dismissed after a preliminary hearing, the prosecutor may still present evidence to the grand jury to see if they will find probable cause.
Can I Be Arrested For Questioning?
No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. It is not advisable to speak with the police until you have first spoken with your attorney. You should ask for a lawyer or independent witness to be present during questioning.
What Is A Search Warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.
What Is Probable Cause?
This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn't probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officers hunch, with nothing more, will not satisfy the requirements.
If A Police Officer Knocks On My Door And Asks To Search My Home, Do I Have To Let The Officer In?
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence.
What If I Agree To The Search?
If you voluntarily consent to a search of your home, automobile, or person, than the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court.
What Is The Plain View Doctrine?
Police officers do not need a warrant to seize contraband that is in plain view if
If I Am Arrested, Can The Officer Search Me?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.
What Is The Sentencing Hearing?
Except for minor offenses, such as infractions a sentencing hearing is held where the final sentence or penalty is determined. The law gives the judge a great deal of leeway in determining what the sentence may be. The character of and circumstances surrounding the defendant can be as important as the severity of the crime in determining what sentence will be imposed.
The sentence is imposed after the jury or judge has provided the judgment. At the sentencing hearing, both the prosecution and the defense are given the opportunity to present evidence and testimony to recommend an appropriate sentence. The judge is free to ignore these recommendations, even if the prosecutor and defense lawyer have agreed to a sentence as a part of a plea agreement.