Author’s Note:  The article below  is a chapter or excerpt from the book “Law, Lawyers and Your Case:  A Dollars and Sense Examination”  (2003, Graduate Group*).  Please also be sure to read the very important and limiting disclaimer at the end of this article.  David Dixon Lentz,  Author.  It is being republished here because much, if not most, of it remains valid and true today.  This article/blog appearing in www.reasonandbalance.com is subject to  Copyright 2021 and 2003.  David Dixon Lentz.  All Rights Reserved. .

[In an earlier blog on courts we describe what a “Court of Record” and a “Lower Court” is.   However, if you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts.  The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.]

The author, David D. Lentz, is an attorney who practices law in Richmond, Virginia.  You can find out more about him at http://www.davidlentzlaw.com. [* Unfortunately, the Graduate Group has since gone out of business and therefore ceased publication]]

[This article is only for very generalized informational purposes and is not intended to provide and does not provide particularized legal advice to anyone in a particular case.  In part, this is because this article may not cite current law in all jurisdictions.  All readers must consult a licensed lawyer in his/her jurisdiction in order to obtain proper legal guidance.]

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Chapter 6:  Criminal Procedure.

 

A comprehensive review of all of the rules relating to criminal procedure is beyond the scope of this book.  The purpose of this chapter is to briefly touch upon the more typical issues that a client may face during the course of a criminal case.  It is designed for clients who find themselves charged with crimes and more serious traffic infractions.  More particularly, what follows is a general description of the steps that are taken by the courts from the time of arrest to the date of trial.  Issues relating to the trial itself are more fully described in the chapter that discusses trial and testifying.  In other words, this chapter deals mostly with pretrial matters.  This chapter does, however, discuss sentencing if a person is convicted of a crime.  The reader is also encouraged to read the section concerning the financial concerns of lawyers and court-appointed attorneys (which is found in the chapter that discusses legal fee agreements) in order to further his understanding of the financial dynamics that affect the way a criminal case will be handled.  Naturally, the Lower Courts and the Courts of Record that are mentioned below were previously discussed in the chapter dealing with the courts.

 

Pretrial Motions:  Improperly Obtained Evidence.

 

Evidence that is seized or taken by the police in violation of certain principles set forth in the United States Constitution can be excluded from evidence.  Thus, the prosecution cannot use improperly obtained evidence to convict a defendant if an objection is made by the defense to its introduction in a timely fashion.  These rules (which are known as “exclusionary rules”) generally apply regardless of the type of evidence that was improperly obtained by the police.  Thus, they apply to improperly seized weapons, drugs, documents, statements, confessions and all other improperly obtained evidence. This does not, however, mean that the prosecution cannot obtain a conviction if it has other legally obtained evidence that is sufficient to prove guilt beyond a reasonable doubt.  It is only the improperly seized evidence that is excluded from the judge’s or the jury’s consideration.

 

In addition to the United States Constitution, other laws, such as the constitutions and the statutes of the various state and federal governments, may also afford procedural protections to a criminal defendant.  For example, in drunk driving and certain drug-related cases, state law may require that the police follow certain procedures in order for blood-alcohol and other test results to be admissible into evidence.  If these procedures are not followed then the test results cannot be considered by the court and many times the exclusion of this evidence will result in the dismissal of the case.  This again assumes that the prosecution does not have other sufficient evidence to prove guilt.

 

Lawyers bring these types of issues to the court’s attention during pretrial motions.  Usually these motions are called motions to suppress evidence or simply “motions to suppress”.  These motions are normally heard before the trial begins.  Holding a hearing on these motions prior to trial is particularly important in cases that are to be tried before a jury.  This is so that there is less chance that prejudicial error or a mistrial will occur during the trial itself.

 

In any event, it is extremely important that the client remember to bring any information that is relevant to any search, seizure or confession during the arrest process to the attorney’s attention as soon as possible so that he has time to file a suppression motion in a timely manner.  If the attorney does not make a suppression motion in a timely manner, the defendant may be deemed to have “waived” the right to have this important evidence excluded from consideration by the court.  In other words, if the lawyer does not make a suppression motion in a timely fashion then the court can consider the evidence in question even though it was improperly obtained.

 

The Right to Remain Silent.

 

Under the Constitution of the United States and the constitutions of most states,

a person who is suspected or accused of a crime or a traffic infraction cannot be compelled by the police to make any statements about the case.  In other words, a person who is suspected or accused of a crime or a traffic infraction is not required to answer the questions of a police officer.  If that person is arrested, then under the well-known ruling in Miranda v. Arizona, 384 U.S. 436 (1966), the accused must be informed by the police of:  His right to remain silent; that anything he says can be used against him in court; that he has a right to have an attorney; and, that he has the right to have an attorney appointed to represent him if he cannot afford one.  These are known as a defendant’s “Miranda rights”.  Thus, if the accused has been arrested for Miranda purposes, any statements made by the accused to the police in response to police questioning before being given his Miranda rights cannot be used as evidence against him at trial.

 

The Miranda exclusionary rule has been weakened over time.  For example, if at trial, the defendant forgoes his right not to testify and testifies in a manner that is inconsistent with what he told the police officers when he was arrested then, in most states, the statement given to police officers when he was arrested, even if taken in violation of his Miranda rights, can be used to “impeach” his credibility as a witness.  New York v. Harris, 401 U.S. 222 (1971). (“Impeachment” is further explained in the section of this chapter that discusses why criminal defendants elect not to testify.)

 

It is very important to note, however, that any statements made by the accused, before he has been “arrested” for Miranda purposes, are admissible, assuming that they were otherwise voluntarily made.  In other words, Miranda warnings do not have to be given by the police if the defendant has not been arrested for Miranda purposes.  Nor do they have to be given if the police ask no questions.  It is only when an arrest occurs (as arrest is defined in Miranda and subsequent cases) and the police begin asking questions that the duty is placed upon the police to give Miranda warnings.  Thus, if voluntary statements are made by the defendant before a Miranda arrest is made, or before the police begin asking him questions, such statements are admissible even though no Miranda warnings were given to the defendant by the police when those statements were made.  If, however, the defendant is arrested (under the rules of Miranda) and questioned, and if he is not given his Miranda rights, then any statements made by the defendant after the arrest would be inadmissible.  Naturally, any statements voluntarily, knowingly and intelligently made by the defendant after he has been arrested and given his Miranda rights are admissible.  In this regard, clients are most likely to preserve their privilege against self-incrimination and to not have their statements used against them if they either express a desire to remain silent (and then, in fact, remain silent) and/or request that they be allowed to consult with a lawyer (and then, in fact, remain silent).

 

Interestingly, an arrest for Miranda purposes may not take place at the same point in time as when the defendant is arrested under state law (such as when the police officer announces to the defendant that he is “under arrest”).  This is an important point because the moment of arrest for Miranda purposes places the immediate duty on police officers to inform the accused of his Miranda rights if they intend to do any questioning.  This is true regardless of whether the defendant has been technically arrested under state law.  Generally, a person is deemed to have been arrested for Miranda purposes if his freedom of movement has been limited by the police.  Clients should assume, however, that many courts, interpret the point of arrest for Miranda purposes as being later in the investigation-arrest process and, in fact, closer to the actual arrest for state law purposes.  This, in effect, permits the prosecution to introduce more of the defendant’s statements as having been voluntarily made during the police investigation stage (but before a Miranda arrest has been made) when no Miranda warnings are required.  Thus, in a large number of cases, criminal defendants convict themselves by making voluntary statements and confessions to the police during the pre-arrest investigation process when no Miranda warnings are required.

 

Voluntary Statements.

 

Regardless of whether a defendant has been accused of a crime or whether he has been arrested or given his Miranda rights, any confession that he makes must be voluntary in order for it to be admissible.  Naturally, any confessions made as the result of physical brutality by the police or as a result of outrageous conditions of confinement would be deemed to be involuntary and therefore inadmissible.  See Brown v. Mississippi, 297 U.S. 278 (1936) and Brooks v. Florida, 389 U.S. 413 (1967).   Absent a significant amount of police misconduct, however, trial courts often find confessions to have been voluntarily made, notwithstanding the fact that a certain amount of psychological pressure may have been exerted by the police in order to get the defendant to talk.

 

War Story:  A detective called John by telephone.  The detective asked John to come to the police station for questioning about “a few matters”.  John went to the station not knowing the purpose of the visit.  When John arrived, the detective made it clear that he just wanted to talk to John and that he was not under arrest.  The detective then told John that an eighteen year-old female had alleged that John had, without her consent, penetrated her vaginal area with his finger while they were watching television on a sofa late one evening.

 

The girl in question was the younger sister of John’s “girlfriend”.  Apparently, John’s girlfriend had gone to bed, leaving John and the alleged victim in the living room to watch a movie.  The alleged victim claimed that she had been drinking and was semi-conscious when the incident occurred.

 

During their conversation at the police station, which was videotaped, the detective said to John:

 

“You don’t look like a bad guy to me.  I had a case like this once before.  That guy wouldn’t talk to me.  We ended up having to charge him with rape.  The poor guy ended up going on trial.  He faced life in prison.  He went through a lot of pain and misery with lawyers and the courts before we were able to work out a deal where he just admitted to a simple sexual assault misdemeanor.  But, if he had just talked to me in the first place we could have avoided charging him with rape and things would have been a lot easier on him.   Instead, he didn’t talk to me, so we had to charge him with rape.  All you’ve got to do is tell me the truth.  If you tell me the truth, I promise that I’ll let you go home today.  But if you don’t tell me the truth, well then …(the detective then briefly paused so as to convey a sense of the gravity of the situation)…that’s up to you.”

 

At that point, John admitted to putting his finger in the alleged victim’s vagina.  He made this admission despite the fact that the detective never said what he would do if John didn’t “tell him the truth”.  Once John made his admission, however, all questioning quickly ended and the detective told John to go home and that he (the detective) would “be in touch”.

 

John was later arrested for “animate object sexual penetration”, a crime that carried a potential sentence of anywhere from 5 years to life in prison.

 

John protested to his defense lawyer that the girl had consensually engaged in heavy foreplay with him.  He said that the alleged victim was lying about the fact that he forced himself upon her.  John further said that she was lying because she wanted to save face with her older sister, who had recently broken up with him.  When asked why he didn’t tell the detective this, John simply said, “…he never asked me.”

 

Later, at a suppression hearing, the defense contended that Miranda warnings should have been given prior to John’s admission because the clear implication of the detective’s statements was that unless John confessed, he would be put in jail that day.  Therefore, the defense argued that John had been arrested for Miranda purposes and that this was true notwithstanding the fact that the detective had not formally arrested him under state law.  The trial court, however, rejected the contention that a Miranda arrest had occurred and thus held that no Miranda warnings were required under the circumstances.

 

Moreover, and just as importantly, the trial judge ruled that John’s statement was knowingly and intelligently given and was therefore voluntary.  In this regard, the trial court disagreed with the contention of the defense that the police had employed trickery and psychological pressure to extract the confession and that the confession was therefore involuntary.  Compare Spano v. New York, 360 U.S. 315 (1959) and Lynumm v. Illinois, 372 U.S. 528 (1963).  Consequently, John’s admission was ruled to be admissible evidence.

 

The significance of the war story is that the police are, as a practical matter, often allowed to apply some psychological pressure and tricks in order to extract confessions and statements from defendants.  In addition, the prosecution will attempt to move the point of arrest for Miranda purposes back so that no arrest will be deemed to have been made for Miranda purposes.  This, in turn, means that no Miranda warnings have to be given to the defendant and that it is more likely that any statements made by the defendant will be admissible. Therefore, until such time as the appellate courts further elaborate on this subject, clients should assume that some police pressure and trickery in obtaining statements from defendants is, as a practical matter, permissible.

 

The Right Not to be Subjected to Unreasonable Searches and Seizures.

 

The Fourth Amendment of the United States Constitution prohibits the government from conducting unreasonable searches and seizures.  This amendment covers arrests as well.  While some arrests require arrest warrants and others do not, all arrests must be based upon probable cause.   Probable cause exists when there is sufficiently reasonable and trustworthy information that would lead a reasonable person to believe that a suspect had committed or was committing an offense.  Beck v. Ohio, 379 U.S. 89 (1964).  Arrest warrants are most likely to be required where a person is arrested at his home.  Arrest warrants are not required if an offense is committed in an officer’s presence.   In any event, evidence seized pursuant to an unlawful arrest by the police can, in many instances, be excluded from consideration at trial if the appropriate motion to suppress is made by the defense in a timely manner.

 

Generally, the police are not allowed to make a search of the accused, his dwelling, his car or any of his personal effects without a search warrant that is based upon probable cause.  In this context, probable cause is present if there are sufficient facts and circumstances as would lead a reasonable person to conclude that evidence of a crime would be found on the suspect or at the premises being searched. Carroll v. United States, 267 U.S. 132 (1925).

 

There are, however, numerous exceptions to the search warrant requirement.  In fact, the exceptions often seem to swallow up the rule so as to permit many warrantless searches.  A detailed discussion of all of the exceptions is beyond the scope of this book.  However, most of these exceptions are based upon some notion of the reasonableness of the search under the circumstances.  Whether a warrantless search is reasonable often hinges on the balancing of the suspect’s reasonable expectation of privacy versus the danger posed to the officer or to the public by the circumstances or the likelihood that evidence will be lost if an immediate search is not permitted without a warrant.  For example, searches of a suspect’s person or areas within the suspect’s immediate reach or control made at the time of a lawful arrest are generally permitted without a search warrant.  Many times, this includes the passenger and glove compartment of a car being driven by the defendant. (Such warrantless searches of the passenger compartment of the car are less likely to be permissible if the stop was for a mere traffic infraction and there is no manifest evidence that the defendant has committed any other violation of the criminal law.)   In addition, items that an officer sees in “plain view” from where he is legally standing are also subject to seizure without a warrant.  Moreover, searches made while in “hot pursuit” of a fleeing suspect are also permitted without a search warrant.   Similarly, no warrant is required if contraband is in an “open field” in which the defendant has no expectation of privacy.  Police inventory searches of the defendant conducted at the jailhouse or at the police station are also usually permitted without a warrant.

 

There are numerous other exceptions to the requirement that a search warrant be obtained before any search can take place.  One exception in particular, however, is worth mentioning.  A search warrant is never required if the accused or the suspect consents to the search.  Any evidence that is obtained by the police as the result of a search to which the suspect has consented will be admissible and, as such, can be used against him at trial.

 

In this regard, in order for the consent to be valid and thus render the search permissible, the consent must be voluntarily and intelligently given.  However, a suspect cannot generally argue that his consent was not voluntary because he was scared or frightened due to the mere presence of the police officer.  That is, of course, unless he has a reasonable fear based upon some tangible threat by the police that he will be harmed if he does not consent to the search.  In this regard, the extent to which a defendant can validly consent to a search in response to a promise of leniency by the police is, as a practical matter, a murky area.  The police frequently make promises of leniency, and although there may be cases indicating to the contrary, clients should assume that a consent to a search given in response to a promise of leniency does not usually make his consent involuntary so as to render it invalid for legal purposes.  Moreover, a defendant cannot normally successfully challenge a search by saying that he did not know that he had a right to withhold his consent to a search.  Schneckloth v. Bustamonte,  412 U.S. 218 (1973).

 

In addition, the police are also usually allowed to conduct a search if any owner (or a person who reasonably appears to the police to be the legal occupant) of the place searched gives consent to the search.  Again, this is true even if the person giving the consent to the search is not the defendant.  Illinois v. Rodriguez, 110 S. Ct. 2793 (1990).

 

War Story:  A policeman stopped Paul on the interstate for speeding at 2:30 a.m. Paul was driving Keith’s car.  Keith was sleeping in a sitting position in the back seat.

The policeman looked at Paul’s drivers license and noticed that both Paul and Keith wore dreadlocks.  The policeman did not, however, beforehand match the vehicle’s registration to any particular owner and did not realize that Keith was the owner of the vehicle.  In any event, during the course of his initial questioning, the policeman told Paul that it would “…make things a lot easier on everybody…” if he would allow him to search the vehicle.  Paul responded by saying, “go ahead” and then got out of the car.

 

In searching the vehicle, the policeman awakened Keith, who was sitting on a bag of marijuana.  Paul was then charged with speeding and Keith was charged with possession of marijuana.

 

Keith went to Al, an attorney.  Keith told Al that Paul had already paid his speeding ticket and that Paul wanted to testify on Keith’s behalf.  Keith said that Paul didn’t know that he could have refused to have given consent to the search and that the officer made him feel like he was required to consent to the search.  Al researched this issue, however, and learned that the police do not have to advise a person of their right to refuse to consent to a warrantless search.  Nevertheless, Al decided to file a motion to suppress the marijuana bag on the basis that Paul had no authority to consent to the search of Keith’s car and that the consent was not voluntarily and intelligently given.

 

At the hearing on the motion to suppress the marijuana, the defense argued that Paul had no authority to consent to the search of Keith’s vehicle.  The prosecution, on the other hand, argued that Paul “reasonably appeared” to the policeman to have had authority to consent to the search because he was the driver of the vehicle.  The defense countered by arguing that the policeman should have checked the registration to determine the identity of vehicle’s owner before requesting permission to search.

 

The trial court, however, ruled that the marijuana bag was admissible because Paul appeared to the officer to have had authority to give the consent to the search and that the search was therefore reasonable.  The court also held that the police officer’s request to search was not coercive and that Paul’s consent was voluntarily and intelligently given.  Thus, the marijuana was deemed to be admissible.

 

Investigative “Stop and Frisk” Pat Downs.

 

Police officers are often allowed to detain a person for questioning if they have observed unusual conduct that leads to a reasonable suspicion that criminal activity may be afoot.  Terry v. Ohio, 392 U.S. 1 (1968).  These “stops” do not require full probable cause.  There must, however, be specific and articulable facts to justify the police officers’ suspicion.  If the officers have reasonable suspicion, they may stop a person for questioning and “frisk” that person if they have a reasonable suspicion that he may have weapons.  A frisk is a limited pat down of a person’s outer clothing for weapons.  If the pat down reveals something that feels like a weapon the police officer is allowed to reach into the inner clothing and seize it.

Observations Regarding Searches and Self-Incrimination.

 

An in-depth discussion of the rules relating to Miranda rights, searches and seizures and other constitutional rights is beyond the scope of this book.  Suffice it to say that the police have a duty to investigate and apprehend those who have committed crimes.  The police, however, encounter many difficulties and dangers in the process of doing this.  They often have to try to obtain evidence and information from people who are hostile or unwilling to cooperate.  As a consequence, the police are sometimes forced to employ tactics that arguably test the limits of the restrictions imposed on them by the Constitution.  In the vast majority of situations they stay within permissible Constitutional boundaries.  Sometimes, however, they do not.  In any event, the police, for better or worse, will often use the threat or suggestion of serious criminal charges, of prolonged incarceration and other means in an attempt to get suspects to either make statements or in order to get them to consent to searches.  Often they will hold out the prospect of extra leniency in return for cooperation.  Other tactics are also used in order to extract “voluntary” statements and consents to searches.   Persons accused or suspected of crimes under such circumstances are under a significant degree of inherent pressure to cooperate with the police.  Clients should assume, however, that the courts will not hold that this type of police pressure amounts to coercion that in any way affects the voluntariness of either an incriminating statement or a consent to a search.  Perhaps this is because a very large number of convictions are made possible only because defendants have either consented to police searches or because they have made voluntary statements that ultimately prove to be against their interests.

 

The rights that persons accused or suspected of crimes have are substantial.  The Constitution of the United States was ratified by the states after serious debate as to its necessity and desirability.  Many people from the time of the Revolutionary War forward have given their lives for these principles.  The framers of the Constitution were very mindful of and feared the potential abuses of power that were possible under any system of government, even a democratically elected one.  The Bill of Rights was adopted to prevent governmental infringement on certain specified rights.  Some of these rights, particularly the right to be free from unreasonable searches and seizures and the right not to be compelled to incriminate oneself, were deemed essential to preventing abuses by those in power.  Moreover, some of these rights were deemed to be fundamental to the right to a fair trial.  As a consequence there is no disgrace in the insistence that these rights be respected.

 

In an age of increasing terrorism and the danger that it poses to the safety of the general public, however, there will no doubt be some desire on the part of the general public that it be protected and that the government be given more authority to stop both crime and terrorism.  In granting the government the authority to do this, however, it is imperative that the general public, the government and the judicial system maintain some sense of balance between the interests of the public to be protected by adequate law enforcement on the one hand and the rights of individuals to be free from overly aggressive police tactics and to a fair trial on the other.  As has been stated by the United States Supreme Court:

 

“We have learned the lesson of history… that a system of criminal

law enforcement which comes to depend on the “confession” will,

in the long run, be less reliable and more subject to abuses than a

system which depends on extrinsic evidence independently secured

through skillful investigation.”

 

The Court then quoted Wigmore on Evidence (3d ed. 1940), page 309 in stating:

 

“[A]ny system of administration which permits the prosecution to trust

habitually  to compulsory self-disclosure as a source of proof must itself

suffer morally thereby.  The inclination develops to rely mainly upon such

evidence, and to be satisfied with an incomplete investigation of other sources

…. The simple and peaceful process of questioning breeds a readiness

to resort to bullying and to physical force and torture…Thus the legitimate

use grows into the unjust abuse; ultimately, the innocent are jeopardized by

the encroachments of a bad system.”

 

Escobedo v. Illinois, 378 U. S. 478 at 488 (1964).

 

This is not to say that the police and government authorities should not be respected.  Everyone owes them a great deal of gratitude and respect.  The point here is that, in many instances, clients in criminal cases do not sufficiently take advantage of the presumption of innocence, their right not to incriminate themselves and their right to be free from unlawful and unreasonable searches and seizures.  In short, it is never unlawful to remain silent and to refuse to answer questions.  Moreover, no one has to consent to a search of their person, their property or their effects regardless of the circumstances.  Having said this, however, withholding consent to a search is, emphatically, not the same as physically resisting or hindering an officer who has indicated that he is going to conduct a search.  No one is permitted to physically stop or hinder the police if they begin a search even if the suspect has objected and the police are acting in violation of a suspect’s constitutional rights.  (Anyone who physically resists a police search may be subject to a separate criminal charge of resisting arrest or obstructing justice.)  Under these circumstances, the only action that is permissible is for the suspect to express a verbal objection to the search and then to allow the police to conduct the search under protest.  It is then for the trial judge, at a later date, to determine whether the search was lawful, and if not, whether any evidence seized should be excluded.

 

Before leaving this subject, it is important to note that the ability of the police to take blood or breath samples or to subject the accused to certain medical procedures in order to obtain evidence is beyond the scope of this book.  It is worth noting, however, that in many states a person accused of driving under the influence of alcohol is required to give blood or breath samples to the police as condition of maintaining his driver’s license.  If the accused does not do so, he subjects himself to the possible sanction of being charged with the separate offense of failing to submit to a blood or breath test.  A conviction of this offense, in turn, often involves penalties that are equally or more severe than a conviction for driving under the influence of alcohol.  In other words, as a practical matter a defendant is legally forced to consent to this type of “search” for evidence.  Of course, under such circumstances, the suspect can verbally object to the blood or breath test (so as to preserve his right to question the conduct of the police at a suppression hearing) but he still must nevertheless cooperate and take the test.

 

After the Arrest.

 

Generally, immediately after a person has been arrested he is taken before a magistrate to determine if there is sufficient probable cause to charge him with a crime.  (Usually, this is done if the person was arrested without an arrest warrant having been previously issued.   There is usually no need to bring the accused before a magistrate if an arrest warrant was issued prior to the arrest.)  Assuming that the magistrate does find such probable cause the accused is then charged with a crime, usually through the issuance of an arrest warrant.  A determination is then made by the magistrate as to whether the accused should be held, released on his own recognizance or released on bond.  For some less serious offenses, typically those that do not carry the possibility of any jail time, police officers have the ability to charge the person with the commission of an offense by issuing a summons that assigns a court date.  The person is then released (without being taken in front of a magistrate) with the instruction on the summons to appear in court on the assigned date.  An example of this process is a simple speeding ticket.

 

The Accused’s First Court Appearance.

 

A person who is charged with a crime and placed in “lock-up” or detained is normally brought into court (usually a Lower Court) for the first time for several purposes, including: (1.) To have the court read to the defendant the charges that have been made against him (this is called an “arraignment”); (2.) to notify the defendant of his right to an attorney, if such a right exists with respect to the charge in question; (3.) in misdemeanor cases, to set a trial date or, in felony cases, to set a preliminary hearing date; and  (4.) in some instances, to determine whether the defendant should be held in confinement (namely jail or detention) or released, and if so, upon what terms. (This, of course, is usually known as a bond hearing.)   Normally, this first hearing occurs very early in the process, often the next regular business day that the court is in session following the arrest.  Typically, the accused does not have a lawyer present at this hearing because he hasn’t had time to get in touch with one.  Nevertheless, anyone accused of a crime, who wants a lawyer and who can afford one, can have one present at this hearing.

 

As noted, at the first hearing, a person accused of a crime or a traffic offense that carries the possibility of a jail or imprisonment sentence is informed of his right to be represented by an attorney.  If, under applicable law, he is entitled to be represented by an attorney, then he is asked if he can afford one.  States and the federal government have various standards to determine whether a person has sufficient income or assets to hire his own lawyer.  If the accused does not have sufficient income or assets to hire his own lawyer and if the offense carries a potential period of incarceration in jail or in the penitentiary, then the person is entitled to an attorney.  If the accused is found to be an indigent, then the court normally appoints a court-appointed attorney or a public defender to represent him.

 

Persons who can afford an attorney but do not do so, or who, for whatever reason, decide that they do not want an attorney, are normally required to sign a “waiver” of their right to an attorney when they appear before a judge for the first time.  If they sign this waiver, however, this does not mean that the accused cannot hire his own attorney.  He may, however, have waived his right to counsel if he does not, in fact, hire one before the actual trial.  In any event, any accused, regardless of whether he is indigent or able to afford an attorney, has a right to represent himself in court.  In serious cases, however, such as those where the accused is charged with murder, rape, drug distribution or other cases where long periods of incarceration are possible, courts will sometimes, as a matter of policy, appoint an attorney to “assist” an accused, even if the accused does not want an attorney.  The courts do this to reduce the likelihood of a mistrial or a successful appeal.  This also makes a fair and orderly trial far more likely.

 

If the accused is entitled to an attorney and is not found to be indigent, the court will then give the accused another court date in order to permit the accused time to find and hire his own lawyer.  The accused must then appear on the next assigned court date with his lawyer present.  Alternatively, some jurisdictions permit the accused to appear at the next court date with a letter of representation signed by the lawyer indicating the dates that the lawyer is available for trial or for a preliminary hearing.

 

Bond Hearings.

 

A bond is a promise to pay the court a certain amount of money if the accused does not appear at trial.  Usually, a bond is guaranteed by a third party such as a commercial bail bondsman.  The bondsman then charges the accused a fee for guaranteeing the bond, which may also be secured by the defendant’s property or the property of a close relative.  (Thus, if the defendant does not appear at trial, the defendant will be indebted to the bail bondsman and/or the court and will probably have his own property or that of a relative seized in order to pay the bond.)  Sometimes, however, a bail bondsman or a third party surety is not required and a defendant can be released upon his own promise to appear.  Courts who do not require a third-party surety or bondsmen, will often require the accused to promise to appear at trial under a monetary penalty if he fails to do so.  This is called release upon a personal recognizance or a personal recognizance bond.

 

The issue of whether bond should be granted is determined by many factors, the most important of which are the risk that the defendant will avoid trial by fleeing and the danger posed to both the defendant and to the community by pretrial release.  The period of time that the accused has lived in a community, his family, job and other ties to the community, the level of any violence involved in the offense and whether or not he has a prior record weigh heavily in determining these risks and dangers.  These factors also significantly affect the amount of any bond that will be required if bond is granted.  Naturally, in some cases, a bond of sufficient monetary size secured by the collateral or property of the defendant or a close relative can diminish the possibility that the defendant will flee.  Sometimes, however, considerations relating to the risk to the community and the risk of flight cannot be sufficiently offset by a bond in any amount.  Under such circumstances the accused will be held without bond pending trial. (In this regard, the federal courts have virtually done away with the concept of a bond.  Persons charged with federal offenses are usually either released with certain conditions that are designed to assure their appearance at trial or they are or held without bond regardless of the circumstances.)   In any event, if bond is granted but the accused cannot find a surety or pay the amount necessary to get a bond then he will be held in jail or detention pending trial.

 

Pretrial Motions.

 

Motions that the accused may make prior to trial include:  Motions to suppress evidence that was improperly seized by the police; motions to suppress confessions that were improperly obtained by the police; motions for psychiatric examinations to determine competency to stand trial or to determine the sanity of the defendant; motions to consolidate or sever cases involving more than one defendant; motions to require the police to inform the defendant of exculpatory evidence (namely evidence that tends to show that the defendant is not guilty); motions to reveal the identity of police informants and motions to change venue (or the location of the case).  There are, of course, other possible pretrial motions that can be made.

 

Pretrial motions can be extremely important in criminal cases.  It is during this phase of the criminal process that defense strategy often takes shape.  Even more importantly, the results of some of these motions can determine the ultimate outcome of a case, particularly if the prosecutor intends to heavily rely upon evidence that the defense contends was improperly obtained by the police.  In this regard, a significant portion of all prosecution cases rely entirely upon incriminating admissions made by the defendant or evidence that was seized in a warrantless search.  If the defense can suppress this evidence with a pretrial motion then there may be no evidence upon which a conviction can be obtained unless, of course, there is other independent admissible evidence that proves guilt beyond a reasonable doubt.

 

Misdemeanor Cases.

 

The maximum period of confinement for a misdemeanor offense is usually one year in a local jail.  Naturally, sentences of less than one year can be, and often are, imposed in misdemeanor cases.  Normally, longer sentencing that requires that time be served in a state or a federal penitentiary is reserved for defendants who have been convicted of felonies.  For some less serious misdemeanors the accused may only be ordered to pay a monetary fine.  Many times, however, the defendant can be both fined and imprisoned.

 

Normally, misdemeanor cases are tried within a relatively short period of time in the Lower Courts — often within 60 days after arrest.  In most misdemeanor cases, all pretrial motions are heard on the date scheduled for full trial.  Usually jury trials are not conducted in misdemeanor cases tried in a state Lower Court.  A judge normally tries the case. (Many times, however, the defendant does have the right to a jury trial even in misdemeanor cases, especially if he faces possible jail time.  Often, he can remove, or if he loses, he can appeal the case to a Court of Record for a trial or a trial de novo before a jury.  Clients desiring jury trials in misdemeanor cases that are to be tried in the Lower Courts should consult with their lawyers.)

 

If the defendant is found guilty in a misdemeanor case, the sentencing is normally done on the same day as the trial on the merits.  Thus, any client facing possible incarceration must come to court prepared, if the worst happens, to be sent to jail and/or to pay any court ordered fine on the day of trial.  (Some courts do, however, grant short extensions for the payment of fines, but clients shouldn’t always assume that such extensions will be granted.)

 

Some states have statutes permitting courts to delay or continue determinations of guilt until after the evidence is heard at trial.  These statutes often permit first-time offenders to plead “nolo contendere” or “no contest” and to undergo treatment programs (usually for minor drug infractions or very minor assault cases).  If the defendant successfully completes the applicable court-sponsored program, the defendant is then called back to court at a later date and the case is dismissed.  Defendants in these cases often avoid having a conviction become part of their criminal record.  In addition, courts are often given somewhat similar options in cases where the defendant is accused of driving while intoxicated and the defendant has no significant prior record.  Under these statutes, the convicted defendant is allowed to retain his driver’s license on a “restricted” basis.  This means that the convicted defendant will have limited driving privileges to and from work, school and other necessary places.  In order to be allowed to keep a restricted license, however, the convicted defendant must normally successfully complete an alcohol safety action program.  If he does not do so, his license will be fully suspended and he could go to jail.  In any event, regardless of whether he completes the program, the conviction normally becomes part of his criminal and/or traffic record.

 

Felony Cases.

 

Typically, in felony cases, the Lower Court conducts the preliminary hearing.  A preliminary hearing is not a trial and no final determination of guilt is made.  The defendant does not enter a guilty or not guilty plea at the preliminary hearing.  At the preliminary hearing, the Lower Court merely determines whether there is sufficient “probable cause” for the case to be “certified” and sent to a grand jury for indictment and then on to a later trial in a Court of Record.  Less evidence is necessary to establish probable cause at a preliminary hearing than to prove guilt beyond a reasonable doubt at full trial.  Therefore, in many instances, it is not too difficult for the prosecution to get a case certified by the Lower Court to the grand jury even though there may be some question about the defendant’s guilt.

 

If the Lower Court determines that there is probable cause, it certifies the case.  Certification normally means that the case is taken to the grand jury of the Court of Record who again determines whether there is probable cause.  Neither the defendant nor his lawyer normally have a right to be present at the grand jury’s proceedings.  On occasion, even if the Lower Court does not find probable cause and thus refuses to certify the case to the grand jury, the prosecution can still “directly” indict an accused by taking its case directly to the grand jury.  Therefore, surprisingly, it is possible for the defendant to win at the preliminary hearing in the Lower Court and nevertheless still have charges re-filed before the grand jury.  This does not constitute double jeopardy.  Therefore, defendants cannot always afford to breath too easily even if they win at preliminary hearing.  For reasons set forth in this and in the preceding paragraphs, defense lawyers do not, in some instances, attempt to obtain a dismissal at preliminary hearing.  Instead, in many cases, at preliminary hearing, defense lawyers elect to ask questions to the prosecution’s witnesses for the sole purpose of learning more about the prosecution’s case and to prepare for the ultimate trial in the Court of Record.  A defense lawyer can do this without putting on any evidence that would disclose what his ultimate defense strategy will be at trial.

 

If the grand jury finds probable cause then the case may be tried in a Court of Record.  Generally, it is only the Court of Record that has jurisdiction to conduct the actual trial of a felony case.  In other words, only a Court of Record can determine the actual guilt or innocence of the accused in a felony case.  In order to obtain a conviction at trial, the prosecution must prove that the defendant is guilty beyond a reasonable doubt.  This is true regardless of whether the case is tried by a judge or by a jury.

 

Trial By Jury.

 

Clients accused of a felony have a right to a trial by jury.  Naturally, these cases are tried in the Courts of Record.  Defendants are also typically entitled to a jury trial in misdemeanor cases in which they face a possible period of confinement in jail.  Whether misdemeanor defendants must be given this right to a jury trial in a Lower Court (where jury trials are typically not conducted) or whether they must wait to appeal their cases to a Court of Record in order to have the right to a jury is a subject that is beyond the scope of this book.

 

In most states and in the federal courts, jury verdicts in criminal cases must be unanimous. (Some states do, however, permit non-unanimous verdicts.)  In other words, in those courts requiring unanimous verdicts, each juror must agree with the verdict.  They must all agree to convict or “acquit”.   If they cannot reach a unanimous verdict then the jury is “hung” and a mistrial must be declared.  If a mistrial is declared, the case can be retried (but before a different jury) if the prosecution elects to do so.

 

In many states the jury only determines the guilt or innocence of the accused.  The judge then determines the sentence to be imposed.  In other states, however, the jury can also determine or recommend the sentence that will be imposed on the defendant after another sentencing hearing is conducted.

 

In many jurisdictions, both the defendant and the prosecution have the right to request a trial by jury.  Thus, in these jurisdictions, the prosecution has the right to request a jury trial regardless of whether the defendant wants one or not.  Some people may find it odd that the prosecution would ever want a jury trial because a jury trial usually requires the prosecution to convince every member of the jury (instead of a single judge) of the defendant’s guilt.  Moreover, such trials take longer and are costlier.   Prosecutors, however, are sometimes motivated to request jury trials because of the perceived likelihood of harsher sentencing.  This is because jurors, in many instances, have no ability to “suspend” any part of a sentence that they impose.  In addition, jurors may not have access to sentencing guidelines that, after taking into account suspended time, may be more lenient than the literal language of the applicable sentencing statute.  Consequently, prosecutors often use the threat of a jury trial as a negotiating tactic to get defendants to plea bargain or cooperate.  In addition, prosecutors sometimes request jury trials because they give prosecutors an opportunity to show the public that they are tough on crime.  This can be a particularly important consideration if the prosecutor is elected by the general public.

 

The Possibility of Trial by Ambush:  Less Discovery.

 

Generally, formal pretrial discovery is much more limited in criminal cases than it is in civil cases. (Recall from the chapter that discusses civil procedure that discovery is a formal fact-finding and investigative process that is conducted prior to trial that allows both parties to learn more about the case.) Thus the defense, in particular, has fewer formal tools to learn all of the facts known by the prosecution about the case prior to trial than a defendant or a plaintiff has in a civil case.  This is true even in felony cases tried in a Court of Record.  Naturally, both the prosecution and the defense in a criminal case can subpoena documents held by third parties prior to trial.  They can also subpoena witnesses to testify at trial.  Nevertheless, interrogatories, depositions, requests for admissions and requests for production of documents, which are available in civil cases, are not generally available to either the criminal defendant or the prosecution in a criminal case.  Thus, for example, a defense attorney cannot formally take the deposition of a prosecution witness prior to trial to determine what he’s going to say.  Nor can the defense attorney learn, through formal discovery, of any knowledge that a prosecution witness has about either the identity of other witnesses or the existence of other admissible evidence (that is unknown to the defendant) that may be valuable at trial.  This does not mean, of course, that the defense attorney cannot attempt to informally contact either the prosecutor or the prosecution’s witnesses prior to trial to learn about these things. (In fact, they often do.)  The difference between formal discovery and informal investigation is, of course, that anything learned from an informal discussion with a witness is not learned under oath and is subject to the prosecution witness’s right to refuse to talk to the defense attorney prior to trial.  Witnesses in civil cases, on the other hand, cannot generally refuse to be deposed.

 

Having said this, defendants in criminal cases have a right to request and obtain any exculpatory evidence that the prosecution has.  This would include any evidence that tends to show that the defendant is not guilty.  In many states, the defendant can also request the disclosure of any confessions made and the results of certain ballistic, blood, autopsy and other tests performed by the prosecution.  In some states, however, the disclosure of this information by the prosecution is conditioned upon the defendant also providing the prosecution with certain information regarding any alibi defense that the defendant may have and/or any documents, examinations or tests that the defendant intends to use at trial. (Alibi evidence is evidence that the defendant puts on to show that the defendant could not have committed the crime with which he is charged because he was somewhere else at the time of the incident.)  Nevertheless, this type of discovery is far more limited than that which is typically permitted in a civil case.  Also, much of this discovery does not take place unless the defendant initiates it.  If the defendant does not initiate discovery, the government has virtually no right of discovery.  Defendants therefore, as a trial tactic, sometimes choose not to file any discovery requests.

 

Consequently, a major difference between a criminal trial and a civil trial is that a criminal trial is much more likely to be a “trial by ambush” because neither the prosecutor nor the defense have as many pretrial discovery tools to learn about the other side’s case.  This is an extremely important point for criminal clients to remember.  The criminal defense lawyer is dependent to a large degree on what his client tells him about the prosecution’s side of the case.  If the prosecution withholds information from the defense lawyer there is, in many instances, fewer ways for the defense to learn about it until it’s too late.  Thus, despite the high stakes involved, the possibility of surprise at trial is greater in a criminal case than it is in a civil case.  This makes the importance of having a criminal client inform his attorney of everything he knows about the prosecution’s side of the case extremely important so that the lawyer can adequately prepare for it.  There is nothing worse than having a previously unknown fact introduced into evidence that the defense cannot explain or rebut because the defense has not had adequate time to subpoena the necessary witnesses or documents.  The prejudicial effect of negative surprise testimony on the client can be overwhelming, not only in terms of a finding of guilt, but also at sentencing.

 

The Right to a Speedy Trial.

 

The lack of formal discovery in criminal cases is one reason why it is possible to bring a criminal case to trial in a fairly short period of time.  A more important reason, however, is that a defendant in a criminal case has a constitutional right to a speedy trial.  This right, however, attaches only after a person has been arrested or accused of a crime.  Thus, the right to a speedy trial has nothing to do with any criminal statute of limitations.  What constitutes an unreasonable delay for speedy trial purposes is dependent on many factors, the most important of which are the conduct of the prosecution in causing the delay, the conduct of the defense in causing the delay, any other factors relating to the reason for the delay in bringing the matter to trial and any prejudice suffered by the defendant as a result of the delay.  See  Barker v. Wingo, 407 U. S. 514  (1972) and Dillingham v. United States, 423 U. S. 64  (1975).  As a practical matter, state and federal statutes are usually the most important determinants of what constitutes a speedy trial.   Often they set forth specific time limits within which an accused must be brought to trial after he has been arrested or accused of a crime.  If the defendant’s right to a speedy trial is violated, the usual remedy is dismissal of the charges.

 

The Importance of the Defendant’s Prior Criminal Record.

 

Generally, the prior criminal record of the defendant is not admissible to show that the defendant is guilty of the crime for which he is being tried.  There are, however, several situations where the defendant’s prior criminal record can make its way into evidence; even during the guilt or innocence stage of the proceedings.  A detailed discussion of this topic is beyond the scope of this book   Suffice it to say, however, that a defendant’s prior criminal record (or at least the fact that he has one) is most likely to be admissible either for impeachment or for substantive purposes where the defendant takes the witness stand, where someone testifies that the defendant is of good character or where the defendant is charged with a crime that, by statute, makes a second or subsequent offense a more serious offense (that is, a felony instead of a misdemeanor).  For example, if a person is charged under a statute that makes a third assault and battery a felony instead of a misdemeanor, his prior record of assault and battery convictions would be admissible during the trial of his guilt or innocence for a third offense.  Moreover, a criminal defendant who foregoes his Fifth Amendment rights and chooses to testify at the guilt or innocence stage of the proceedings can be questioned, for purposes of impeaching his credibility, about whether he has a prior felony or misdemeanor record involving crimes of moral turpitude.  In any event, this is one reason why defense attorneys are somewhat hesitant to put criminal defendants who have prior records on the witness stand.

 

In any event, once the court finds the defendant to be guilty of the crimes for which he is accused, the defendant’s complete criminal record is always a highly significant factor in determining the sentence that the court will impose.  In fact, many times it is the most important factor.  Thus, the defendant’s prior criminal record is always admissible during the sentencing phase of any criminal case.

 

A Defendant’s Right Not To Testify.

 

In a criminal case, the prosecution cannot force the defendant to take the witness stand.  The defendant does not have to testify.  This right is guaranteed to the defendant under the Fifth Amendment to the United States Constitution and the constitutions of the various states.  Moreover, at trial, the prosecution cannot comment upon the fact that the defendant is unwilling to testify.  The prosecution cannot argue that the failure of the defendant to testify implies that he has something to hide or that he is guilty.  In fact, in jury cases, the jury is instructed that they can draw no inferences of guilt based upon the fact that the defendant did not testify.

 

If the defendant elects to testify however, he must do so truthfully.  Thus, and although it rarely happens, if it is later determined that he did not truthfully testify then the defendant faces the possibility of being convicted not only of the original charges but also of perjury for testifying falsely.

 

Why Many Defendants Do Not Testify.

 

As noted above, if a defendant takes the witness stand, it is far more likely that the fact that he has a prior criminal record will come to light during the trial.  In addition, if a defendant elects to take the witness stand then any confessions and admissions taken by the police in violation of the defendant’s Miranda rights, may be used for purposes of impeaching him.  Impeachment evidence is technically not the same as substantive evidence of guilt or innocence.  Impeachment evidence is only supposed to be considered by the judge or the jury for purposes of determining whether a witness is testifying truthfully and not for purposes of determining whether the defendant is guilty.  Substantive evidence, on the other hand, can be considered by the judge or the jury in determining the guilt or innocence of the accused.  Thus, if a defendant chooses to testify, an improperly obtained admission or confession obtained by the police prior to trial is only supposed to be considered by the judge or the jury for purposes of determining whether the defendant is a truthful witness and whether his in-court testimony should be believed.  It is not supposed to be considered for purposes of determining whether his admission or confession is true.  Many times, however, juries have a difficult time understanding the difference between impeachment evidence and substantive evidence.  Therefore, any prior admission or confession by the defendant can have an obvious adverse effect on the jury even if only used for impeachment purposes.

 

Moreover, while all conversations that the lawyer and his client have had in private are subject to the attorney-client privilege, the attorney-client privilege does have its limitations.  One of those limitations is that the lawyer is not allowed, under legal ethical principles, to knowingly allow his client to lie or to commit perjury while on the witness stand.  If a client does so, the lawyer has certain obligations that may include withdrawing from the case or disclosing the possibility of the perjury to the court.  This is a very sensitive and gray area and lawyers strongly hesitate to withdraw or to inform courts of the possible perjury of their clients, but these rules do exist.  In short, however, a lawyer cannot purposefully and knowingly allow his client to testify falsely.

 

The foregoing is not to say, however, that all defendants who choose not to testify do so because they would commit perjury if they did testify.  The risk of perjury, however, is only one possible factor that may inhibit the choice to testify.   The same can be said for the possibility of impeachment and the admissibility of the fact that the accused has a prior criminal record.   Some defendants who choose not to testify do not have prior criminal records.  Moreover, some defendants who choose not to testify have not made admissions or confessions to the police.  In fact, it is quite possible that a defendant will choose not to testify for reasons having nothing to do with any of these considerations.   Some people just don’t make good witnesses.  Other defendants may run the risk of alienating the jury merely because of some personality trait.  Still others, for a variety of reasons, may think that the prosecution’s evidence is insufficient and that there is simply nothing to be gained by taking the witness stand.  Nevertheless, the rules relating to the admissibility of an accused’s prior record, the possibility of impeachment and/or the risk of perjury often force defense attorneys to advise their clients not to testify in criminal trials.

 

One of the most significant consequences of the choice not to have the defendant testify is that the defense is then often forced into a strategy of trying to shoot holes in the prosecution’s case instead of introducing credible evidence of its own to support its defense theories.  This is especially true when there are no other witnesses who can support the defendant’s version of the facts.  If the choice not to have the defendant testify is made the defense must often rely on the police officer to tell the absolute unbiased truth during trial because there are no other witnesses who will testify.  In these situations, a potential problem is that police officers often issue hundreds of citations and summonses each year.  Like anyone else, they can become confused as to what happened during a particular incident.  Their memories may become hazy.  This could be beneficial from the defendant’s perspective but, more often than not, it’s detrimental to the defendant’s case.  Part of the reason for this is that police officers, many times know, by virtue of their training, what the facts “should have been” in order to obtain a conviction.  There is a natural tendency then to testify accordingly.  This is particularly likely to occur if the police officer subjectively feels that the defendant is guilty.  This is not because the typical police officer is not well intended.  It’s more likely because, like all people, police officers have a tendency to interpret events in a manner that is consistent with their own (that is, the prosecution’s) interests.  Like most people they want to do their job and do it well.  A potential problem, however, can arise when a defendant has been wrongfully accused of a crime but elects not testify because he has a prior criminal record.  In these situations the possibility exists that the police officer may not correctly recall the situation.  In such an event, there is no one to rebut what the policemen says except the defendant who fears that his prior record will hurt his chances of obtaining an acquittal if he elects to testify.  Moreover, even if the defendant elects to testify, he knows that if it comes down to the policeman’s word versus his own, in the vast majority of instances, the policeman will be the one who is believed.  In short, it is often difficult for criminal defendants who have prior records to testify regardless of whether they are guilty or innocent.

 

Sentencing in Misdemeanor Cases.

 

If the defendant is found guilty, a sentence must be imposed.  In many jurisdictions there are no sentencing guidelines for misdemeanor offenses.  As such, any leniency that the court shows in imposing a sentence is discretionary.  Consequently, judges can theoretically impose the maximum jail sentence (normally one year) and the maximum fine in any case where state law does not require otherwise.  This is true even for first time offenders in misdemeanor cases.  Naturally, if state law requires that the judge impose a minimum sentence then he must follow the law.   Minimum sentencing is being increasingly required, for example, for repeat offenders in traffic cases where the driver was under the influence of drugs or alcohol.

 

In any event, courts do not typically impose the maximum sentence in a misdemeanor case unless the facts are particularly egregious.  Moreover, courts normally impose little or no actual jail time for first time offenders unless the offense involves a significant amount of violence or the defendant’s conduct poses a significant risk to the community or himself.  (In fact, as noted above, many times a court will permit a first-time offender to attend a court-sponsored program and will dismiss his case upon successful completion of the program.)

 

Courts do, however, have a tendency to give convicted defendants substantial “suspended” jail time even for first-time offenders.  For example, a judge may sentence a person to 90 days in jail with 88 days suspended.  Such a person would be required to spend 2 days in jail.  He would not, however have to serve the 88 days of suspended time in jail unless, in the future, he commits another crime, violates the law or he fails to fulfill the terms of his probation.  By giving defendants a lot of suspended jail time, courts attempt to deter convicted defendants from committing future offenses.  (See the section below regarding probation violations and the possibility that a convicted defendant may have to ultimately serve any suspended jail time if he commits a future criminal offense or a future probation violation.)

 

Naturally, a person who already has a prior criminal record at the time of his conviction is more likely to be given more actual jail time to serve.  The same can be said if the crime involves a significant degree of violence or if the facts show that the defendant is a significant threat to the community.

 

Many people convicted of misdemeanors can request work release.  Granting a work release request is within the discretion of the court.  It is normally only granted to those who have a pre-existing job and who represent no risk of flight or any danger to the community.  Under work release, the defendant is released from jail during the day so that he can keep his job.  At the completion of work each day, the defendant must then promptly return to jail.  Home-incarceration with electronic monitoring is also a possibility for many less dangerous offenders.

 

Sentencing in Felony Cases.

 

In some states, it is the judge that imposes the sentence.  This is true even if the case was tried before a jury.  In other states, the jury does the sentencing in cases that were tried before a jury.  In states where the jury does the sentencing it is not unusual, except in extremely serious cases, for the sentencing hearing to be conducted before the jury on the same day as the trial to determine guilt or innocence.

 

Naturally, any sentence imposed by the court must be within the requirements set forth by the statute applicable to the particular crime committed.  The sentencing provisions of statutes normally specify a range of sentences from which the court must choose.  For example, assume that a state’s law subjects a defendant convicted of grand larceny to a term of imprisonment of anywhere between 5 and 20 years.  Under these circumstances, the judge or the jury must decide where within this range it will sentence the defendant.

 

If the defendant is found guilty in a felony case tried without a jury, the typical procedure calls for the court to set a separate date, after the trial date, for the imposition of sentence.  This is to give the probation office time to prepare a presentence report if one is requested by the defendant.  In preparing the report, the probation office conducts a relatively thorough social history of the defendant.  The probation office also reviews the defendant’s prior criminal record and summarizes the facts of the case in which the defendant was convicted.  During this process, the probation office will also normally interview the defendant and his family.  The presentence report may also contain a computation and analysis of any sentencing guidelines that are applicable to the case.  In addition, it may recommend that a particular sentence be imposed.  Both the prosecution and defense can, of course, introduce evidence concerning any inaccuracies in the report at the sentencing hearing.  If the presentence report does contain a recommended sentence the judge can accept or reject the recommendation.  Judges, however, usually accept the sentencing recommendation made by the probation office in the presentence report.

 

Sentencing guidelines have become an increasingly important part of sentencing in criminal cases in many states and in the federal courts.  Many state and federal courts have adopted sentencing guidelines in an attempt to make sentencing uniform and to reduce the likelihood that any sentence will be influenced by race, sex and other less relevant and discriminatory factors.

 

Sentencing guidelines, if they apply, normally involve a numeric computation based on points.  These points are calculated using various pieces of information concerning the defendant, the crimes for which he was convicted and his prior criminal record.  Defendants receiving more points are given harsher sentences than those receiving fewer points.  Naturally, a high number of points are assigned to crimes involving weapons, force, death, injury, drug distribution and aggravated sexual acts.  Points are also assigned on this basis for all crimes for which the defendant has been convicted in the past.  After all of the points have been added, the guidelines will generally recommend a more narrow range of suggested periods of incarceration than is provided by the statute under which the defendant was originally convicted.  (The guidelines must, however, specify a sentence within the range mandated by the statute and they may or may not take into account any “suspended” period of incarceration in doing this.)   Often, the guidelines will also have a “mid-point” recommendation as to what the specific average sentence should be.

 

For example, and again, in a grand larceny case, state statutory law may permit the court to sentence the defendant to anywhere between 5 years and 20 years in prison.  Traditionally, a judge could suspend all or any portion of any jail time that it ordered, whether that be 5, 6, 10 or 20 years.  By contrast, the mid-point of the sentencing guidelines may specifically provide that the defendant be sentenced to 10 years in prison with 7 years suspended.  This would mean that the defendant would only serve 3 years in prison.  Normally, the courts are only permitted to deviate from any applicable sentencing guidelines for good cause or for other compelling reasons that they must state on the record.   Some courts, however, have mandatory sentencing guidelines that must be followed and/or adjusted only for reasons that are specified in the guidelines; otherwise a convicted defendant can appeal his sentence for failure to follow the guidelines.

 

An interesting aspect of the sentencing guidelines in some jurisdictions is that a convicted defendant is given credit if he cooperates with the police.  In other words, if he cooperates he theoretically gets fewer points and will serve less time in prison.  This can be particularly important in any type of conspiracy case or whether there are several co-defendants, particularly in drug-related cases.  A significant amount of pressure is brought to bear on defendants in these jurisdictions, to plead guilty, cooperate and to provide evidence against co-defendants, particularly if the defendant is facing a significant amount of minimum jail time.

 

It is very important for criminal defendants to understand that in those states where the jury sentences the defendant, the jury does not know, before it renders a verdict of guilt or acquittal, what the applicable sentencing ranges are.  The jury first deliberates on the guilt or the innocence of the accused and, only if it convicts the defendant, does it learn, for the first time (during the sentencing phase of the proceedings), what the required sentencing ranges are.  Therefore, the jury has no idea what sentence it will be required to impose on the defendant when it votes to convict him.  Thus, it is very possible for a jury to vote for a conviction only to later find (when it’s too late) that they must, at a minimum, sentence a defendant to a certain number of years of imprisonment.  In this situation, the jury has to sentence the defendant to the minimum number of years even if they would prefer a lesser sentence.

 

Moreover, a jury does not usually have access to or know about any applicable sentencing guidelines even in states that use sentencing guidelines.  This fact can also work to the disadvantage of the accused in a jury case, especially if the jurors have no power to suspend any portion of a sentence under state law and state law requires a jury to sentence a convicted defendant to a minimum period of confinement.  Under these circumstances, a convicted defendant is at a disadvantage unless state procedure permits the judge to modify any sentence imposed by the jury.  In other words, jury sentencing can be quite severe.  Again, this is because juries are typically instructed by the court that they are required by law to sentence the accused to a prison term within the range provided by statute.  For example, the jury may receive an instruction that they must sentence a person convicted of grand larceny to a period of incarceration of anywhere between 5 and 20 years.  Thus, the jury in this situation has no choice but to sentence the defendant to an actual (that is, an actual “time served”) prison term of at least 5 years.  This would be true even if they would prefer a lesser sentence and the applicable sentencing guidelines provided that the defendant should be sentenced to 7 years in jail with all but one year suspended.

 

By contrast, if the judge alone hears the case, he could (unlike the jury) refer to the sentencing guidelines and would normally sentence the convicted defendant to serve 7 years; but then he would suspend 6 years of that sentence.  Therefore, unless state procedure permits the court to modify the jury sentence or unless it gives the jury the right to suspend a certain portion of the period of incarceration, persons convicted of a crime by a jury can often receive more severe sentences than persons sentenced by a judge who normally has the power to suspend all or any portion of a sentence.  Moreover, sometimes judges are not inclined to significantly alter or amend sentences imposed by juries, even if they have the power to do so.

 

The possible periods of incarceration for various crimes under applicable statutory law can be quite lengthy.   Prior to the introduction of sentencing guidelines, when judges did the sentencing they often had wider discretion to pick and choose sentences including any suspended time that they wished to impose.   From the defendant’s perspective, there were advantages to such a system.  After all, judges having heard many cases, arguably have or had a good feel for what penalties have been imposed on other criminals under similar circumstances.   In other words, judges often know who the real “bad apples” are and thus are arguably better able to distinguish between the ones who can be rehabilitated and those who are likely to be back in prison in the future than a system that relies on preset rules that contain little or no allowance for factual or character nuances that are applicable to a particular case.  Presumably these advantages would still hold true in any jurisdiction where sentencing guidelines have not been adopted.  Unfortunately, disparities in sentencing arose, sometimes for improper reasons such as the race of the defendant.  In any event, in any court where sentencing guidelines do apply and where the guidelines impose what might to be considered to be a severe and mandatory penalty (for example, in the federal courts) a defendant may find himself facing a more extended period of incarceration than he might expect.  Under such circumstances, the judge will have little discretion in showing the defendant any leniency in sentencing beyond what is permitted in the guidelines.

 

It should be noted that, unlike misdemeanor cases, if a person is sentenced to a period of incarceration for a felony, that person is more likely to be placed in a state correctional facility, such as the penitentiary, to serve his time instead of in a local jail.  Naturally, as part of any sentence, a court can impose a monetary fine on the defendant and it can usually order that the defendant pay restitution to the victim if, for example, any money has been stolen or if property has been damaged.

 

Rehabilitation.

 

An increasingly important part of sentencing relates to the concept of rehabilitation.  This is true in both felony and misdemeanor cases.  Many courts have the power to require that defendants attend and successfully complete a variety of programs as a condition of their probation.  Family violence programs, drug programs, alcohol-related programs, parenting and a whole variety of other programs are available.  In addition to the foregoing, there are also work-release type programs, weekend incarceration, house-arrest (with electronic monitoring), boot camp and diversion programs that the court can order in imposing sentence.  Eligibility for these programs depends on a variety of factors, including the seriousness of the offense, the danger that the defendant poses to the community, the desirability of maintaining employment opportunities for the defendant and whether the facility or program has room for the convicted defendant.

 

Actual Time Served.

 

Naturally, the amount of time that any defendant actually serves in prison can depend upon such factors as whether the state or jurisdiction in question has a parole system and whether state law or local practice gives an inmate extra credit for days actually served in prison.  For example, a particular state may give an inmate one additional day of credit for every day actually served in prison.   Thus, a convicted defendant who is sentenced to serve 90 days may be released after actually serving only 45 days in such a system.  (Other states, of course, may give a convicted defendant less credit and require him to actually serve more of his sentence.)  Sometimes, the time actually served may depend on good behavior, whether the defendant has been rehabilitated and the danger posed to the community by allowing early release.  Many jurisdictions also permit convicted defendants to file a formal motion with the court for a sentence reduction after the case is over.

 

Probation Violations.

 

A significant portion of any court’s caseload includes cases involving probation violations.  Many convicted defendants fail to fully understand that they must comply with the terms of their probation or they may be required to serve the remainder of their sentence.  Probation violations often include failure to complete any court-ordered program (such as anger management, driving school or alcohol or drug treatment programs), failure to maintain contact with the probation officer, failure to report for random drug testing, failure to file probation reports, committing other crimes and “failing to keep the peace and be of good behavior”.

 

For example, a person released from the penitentiary for a robbery conviction, who was originally sentenced to serve three years with seven years suspended for that conviction, may be required to serve the remaining seven years if at some time during his post-release probation period he is arrested and then convicted of possession of marijuana.  This would be done at a “show cause” hearing conducted after the conclusion of the marijuana case.  This show cause hearing would be conducted before the court that originally convicted him of the robbery.  Thus the robber in this situation would not only be sentenced for his new marijuana conviction, but he also faces the possibility of serving the remaining seven years of his suspended prison time for the original robbery.

 

Observations and Suggestions.

 

Clients who are charged with a criminal offense, must be keenly aware of several facts:

 

(1.)  The prosecution has access to vast resources to help it prepare its case.

 

(2.)  Many of the prosecution’s witnesses, namely policeman, detectives and forensics experts, are, for all intents and purposes, expert or professional witnesses.  Moreover, they probably have testified many times before in front of the same judge that will hear the case.  In other words, the prosecution is not only well-financed but it is also a well-trained team whose members are doing what they do for a living.

 

(3.)  As will be discussed in the chapter dealing with fee agreements, in most cases lawyers representing criminal defendants face significant financial challenges.  They certainly do not have the financial resources that the state does.  Largely, for this reason, most criminal defense lawyers do not have “in-house” private investigators.  Unless the lawyer has been provided with the funds by his client to hire a private investigator (which is highly unusual), the lawyer, in most cases, will do little independent investigation of the facts of the case other than perhaps speak to any witnesses that he is aware of.  In other words, the lawyer, in preparing a defense strategy will usually rely heavily on what he has heard from his client and on anything that the prosecutor and the police have told him.  Therefore, unless the lawyer has been provided with accurate information by his client he may be unexpectedly forced to alter his defense strategy at the last minute when he has not had adequate time to effectively do so.  In any event, it is imperative that the client inform the lawyer not only of the facts that are favorable to his case but also of the facts that are unfavorable to his case at the earliest possible moment.  This includes the identity of both the favorable and unfavorable witnesses and the existence of all other photographs, statements, tangible evidence and tests taken.

 

(4.)  In the real world, many, if not most, criminal defendants are represented by court-appointed lawyers or public defenders.  The economic realities of the fee schedules that determine the way these lawyers are paid dictate that they handle a multitude of cases.  (Again, this is discussed in further detail in the chapter dealing with fee agreements.)  Many times, these lawyers have very hectic schedules because they may often have several different hearings or trials on any given day.  Their time is precious.

 

(5.)  In addition, because of scheduling conflicts, lawyers cannot come to the jail to visit the client anytime the client wants.  Moreover, incarcerated clients often have a limited ability to provide their lawyers with informational updates.  Consequently, clients who are in jail must make every visit with the lawyer count in terms of exchanging accurate and complete information about the case.  Thus, criminal defendants who are allowed outside telephone calls by their jailers should consider using the telephone to advise their lawyers of facts about which their lawyers are unaware.  Clients awaiting trial in jail should also be encouraged to have friends or relatives, who they trust, stay in contact with their lawyers to keep them advised of any new developments.  These people can be invaluable “go-betweens”. (One potentially dangerous aspect of “go-betweens”, however, is that information given to these “go-betweens” may not be subject to attorney-client privilege and these people could, at least in theory, be called upon by the prosecution to disclose what otherwise might be privileged attorney-client information.)

 

(6.)  Many criminal laws are drafted to protect society by attempting to deter crime through the imposition of very significant punishment.  These laws are often broadly drafted by the various state legislatures and the Congress to reach a multitude of situations so that society is given maximum protection against crime by criminalizing undesirable activities and by discouraging the early release of criminals.  Thus, lawmakers have enacted many laws that seek to deter crime by prescribing significant maximum penalties.  Moreover, in an effort to get tough on crime lawmakers have often resorted to establishing mandatory minimum sentences and penalties.  Even these minimum penalties can be very significant.  To add to this, sentencing guidelines, often either inhibit or deter judges from imposing more lenient sentences in, what some may argue are, appropriate cases.  As a consequence, many times certain activities, though universally recognized as wrongful, become far more serious offenses than ordinary people might otherwise think.  In this regard, the police and the prosecution will often charge a person who has allegedly committed a wrongful act with all of the possible offenses that they’ve allegedly committed, including the highest and most significant ones.  This is often true even in situations where the accused’s activities are not, from a common sense perspective, as serious as the most serious charge would imply.  To add to this, criminal sentences often run consecutively and not concurrently.  (In other words, if a defendant is convicted of multiple offenses all of the sentences can be added together to make the total sentence to be served longer than might be expected.)  Moreover, and as noted, juries (if they do the sentencing) are usually not aware of the potential sentences that they must impose if they find guilt until after they’ve already convicted the defendant (that is, when they hear evidence at the sentencing phase of the case when it’s too late and they can’t reverse their conviction vote).  These factors and others (some of which have been mentioned in this chapter) mean that the defense attorney and the accused often find themselves faced with some very unpleasant choices that often make it highly risky to take a case to trial because of the severity of the potential sentences that the accused faces.  Unfortunately, this can be true even in cases where defendant has arguable defenses that would vindicate him.  Under these circumstances defendants can find themselves plea bargaining (to a lesser crime) when it is questionable whether they should plead guilty to any crime at all.  After all, even if the lesser crime carries little or no jail time, the defendant will still have a criminal record if he elects to plea bargain to it.  In other words, there is a significant risk that some defendants will plea bargain even though they think (and sometimes reasonably so) that they are innocent because the downside risks of trying their cases are sometimes too great.  Thus, the accused must often rely on the good faith of the prosecution in making the basic decisions regarding whether to prosecute the case, to charge the highest offense and/or to charge all possible offenses, and, if those decision are made, to at least offer a reasonable plea bargain.  In any event, criminal defendants who refuse to take plea bargains offered by the prosecution and who insist on having a judge or a jury determine their guilt or innocence will often have to be very brave and willing to assume significant sentencing risks if they are convicted.

 

The foregoing is not to say that the system was designed with anything other than the best of intentions.  The American criminal justice system is probably the fairest in the world.  Nevertheless, criminal litigation is not, as a practical matter, always conducted on a level playing field.  Despite the existence of certain constitutional protections and the presumption of innocence, monetary and certain practical and procedural considerations give the prosecution the advantage in many cases.

 

Criminal and Traffic Records; Obtain Them.

 

Contrary to popular belief, lawyers do not automatically have access to everyone’s prior criminal record early in the case.  While it is true that the prosecution will normally provide defense attorneys with a copy of the defendant’s prior record, in many situations, especially in misdemeanor cases, this is not done until the day of trial.  Even in felony cases, the prosecution may not provide the defense attorney with a copy of the defendant’s prior record until it has obtained one.  This may be at a bond hearing, at a preliminary hearing or later.  The point is, many times a defense lawyer will walk into court not really knowing what his client’s record is.  Moreover, a lawyer does not have access to the prior records of either the prosecution’s or the defense’s witnesses.   This can be very important for impeachment purposes.

 

What makes this situation difficult for the defense attorney is that having knowledge of a defendant’s prior record is crucial to his defense strategy.  First, the defendant’s prior criminal record is highly relevant to the attorney’s determination of whether the defendant should waive his Fifth Amendment rights and testify.   If the defendant does testify, he faces the possibility that fact that he has a prior criminal record may be admitted into evidence.  In addition, the prior record also has a significant impact on the potential sentence that the defendant faces.  In this regard, in situations where sentencing guidelines are applicable, it is impossible to do the appropriate calculations without the defendant’s prior record.  Thus, the defense lawyer has no way of determining what a good or a bad “deal” is for plea bargaining purposes without first knowing the defendant’s prior record.  The cumulative effect of all of this is that the criminal record has significant impact on the lawyer’s ability to reach a plea bargain with the prosecution on terms that he thinks are favorable.  Therefore, the client’s prior record significantly affects the overall advice that the lawyer gives to the client.  Simply put, a criminal defense lawyer cannot give his client good advice if he doesn’t have accurate information regarding the client’s criminal record.

 

Consequently, clients who are in a position to do so should immediately obtain a copy of their prior criminal record.  They should then provide it to their attorney at the earliest possible date.  This is true regardless of whether the client thinks he is innocent or guilty.  Clients can normally obtain a copy of their prior record from the state police upon payment of a fee.  Unfortunately, not all clients, particularly those who are detained in jail pending trial, are in a position to obtain a copy of their records.  What makes matters worse for many of these defendants is that these types of defendants usually have the most serious and complex prior records.  Moreover, most of these defendants come from disadvantaged socio-economic backgrounds and they often don’t know what their prior records are.

 

What has been said above for criminal records also applies in traffic cases.  A person charged with a traffic offense should go to his state’s department of motor vehicles and obtain a copy of his traffic record prior to trial and provide it to his lawyer.

 

The Day of Trial:  Show Up Early.

 

Clients are well advised to appear at court on the date of trial well in advance of the starting time for the case.  This is so the lawyer can again go over the case and get last minute feedback from the client.  Many times, especially in traffic and lesser misdemeanor cases, defense lawyers do much of their plea bargaining with the prosecution on the actual morning of trial.  Therefore, the client needs to be at court early to participate in any negotiation process and to approve, before the trial begins, any plea bargain.

 

Also, in many cases, the lawyers do not know what the opposing witnesses or the police officer look like.  Clients are, therefore, the only ones who know whether everyone that the prosecution and the defense needs to have testify have actually shown up for trial.  In this regard, occasionally a lawyer will enter into a plea bargain under which the client pleads guilty to some offense, only to later find out that key prosecution witnesses have failed to appear.  In these situations, it may have been possible for the lawyer to have obtained a total dismissal.  Therefore, clients should assist their lawyers by identifying the witnesses who have appeared for trial.  Moreover, if the client can point out the relevant independent witnesses to the lawyer prior to trial, the defense lawyer may have a great opportunity to question them to learn more about their expected testimony.  This also allows the lawyer a better chance to determine whether those witnesses will be credible and make a good impression on the court.

 

Assume that Continuances Will Not Be Granted; Have Witnesses and Documents Ready.

 

Courts generally handle very heavy caseloads.  Judges do not like their dockets crowded with old cases.  In addition, courts do not like to inconvenience prosecution witnesses, defense witnesses or jurors with multiple court appearances.  For this reason, judges do not like to change or delay a trial date once it has been set.  Consequently, unless a defendant is entitled to a certain number of discretionary continuance by statute, continuances are not as easily obtained as is commonly assumed.

 

Therefore, given that continuances may not be granted and that defendants get only one trial, clients must act on the assumption that their cases will be tried on the date scheduled.  They therefore must move quickly to help their lawyers prepare the case.  To the extent that clients do not act in this fashion, they are much more likely to suffer undesirable results.

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DISCLAIMER

The article above is an excerpt from the book “Law, Lawyers and Your Case: A Dollars and Sense Examination.” (LLYC)  Published by the Graduate Group in 2003.   The publisher is now out of business and the book is now out of print.

The article above is to provide the reader with only a very general legal framework or reference point—a mere “starting point” to permit the reader to engage in further analysis.  It is not the “final word” so to speak and is not designed to give anyone legal advice.  As such, the foregoing article MAY NOT be relied upon by anyone to resolve his/her/its legal matter. Readers must consult their own lawyer and/or take responsibility for doing their own independent legal research/representation beyond merely reviewing this article.

 

Please keep in mind that laws do change over time and that laws differ amongst the various states, territories, nations and locations. So the rules and laws stated herein may not apply to the reader.

Any similarities in names, descriptions or accounts of persons, entities or events is purely accidental and all person/characters, entities and events herein are fictional and not intended to depict or describe any actual person, event or circumstance.

 

Despite the passing of many years most of this book is still relevant today.  It is still helps very useful in terms of explaining the how legal problems get handled, the attorney-client relationship, trial and testifying and very importantly the general manner in which the legal system and the courts operate. Important concepts like discovery, summary judgment and a host of other terms are explained and defined.  Civil, criminal, family law, personal injury and a host of other types of cases are discussed in remarkable detail.

If you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts.  The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.

Dollar amounts for costs, expenses, attorney’s fees, damages etc etc are probably very different because this book was published in 2003 and costs and dollar figures can vary widely depending on the location of the legal matter.   This naturally would also include changes and new jurisdictional dollar limits for most cases before any given court.

There have been extensive changes to the Bankruptcy Code since LLYC was first published.  As such, any references to bankruptcy rules, laws and/or legal requirements could be out of date and/or incorrect.

Since the LLYC was written there have been changes in the way third party costs and expenses (such as for experts and court reporters etc) may be funded and/or paid for—often making it somewhat easier for the client and his/her lawyer to carry a plaintiff’s personal injury/product’s liability case.

If a client has been damaged or lost money because of the ethical violations of his/her lawyer (for example, if the lawyer has stolen or misappropriated funds from the client or the client’s escrow account) many state bar associations have established separate trust funds to reimburse clients for the wrongs of their lawyers.

With regard to “property law” matters, this book has been written largely from the perspective of someone living in a state with English “common law” origins (which is most of the United States).  However, folks who live in “community property” or “civil law” jurisdictions my have different rules regarding discussions pertaining to divorce property settlements, real estate law, inheritance and/or other property law matters.