Know your rights!
- Your 8th Amendment right is the right to bail.
- Your 5th Amendment right is the right to council.
- You have the right to testify on one’s own behalf.
- You have the right to remain silent.
- You have the right to a speedy trial.
- You have the right to a jury trial (in most cases).
- You have the right to use courts’ subpoena power to compel witnesses to testify.
- You have the right of presumed innocence.
- You have the right to cross examine and confront witnesses.
Things the defendant should expect from his criminal defense attorney:
- The defense attorney must ethically and actively defend his or her client.
- The defense attorney must present all options to his or her client with recommendations and professional opinions.
- The defense must prepare his or her client completely for each step in the legal process, but also, the defendant must assist his or her attorney. The defendant must make sure he or she understands what the attorney is doing and why he or she is doing it before it is done. The defendant cannot wait until after the attorney presents the defense to inquire as to the course of action.
- The defense attorney must review all possible defense scenarios and evidence and interview all witnesses in support of the client’s case.
- The defense attorney must develop a theme to the defense. The theme is composed of a powerful defense strategy and a course of action to present reasonable doubt or otherwise minimize exposure or punishments.
How to plea bargain a good deal:
Remember: the burden of proof is always on the prosecution or State
- The defense must show responsibility for the crime is minimal.
- The defense must show the impact of the crime elicited little damage.
- The defense must explain mitigating circumstances that led to the crime.
- The defense must establish weaknesses in the prosecution’s case, such as lack of evidence, or lack of witnesses, or factual inconsistencies.
- The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
- The prosecution and defense must mutually desire a reasonable settlement.
- The impact on the defendant’s family or dependents would be a hardship.
Bail is a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts :Is the defendant a danger to the community? What is the likelihood the defendant will flee?
In order to get the bail reduced, the defense attorney should do the following:
- Demonstrate the potential crime is not one that the defendant would do again.
- Demonstrate the defendant is not a danger to the community.
- Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways:
- Character references
- Community support
- Stable employment history
- Memberships in religious or civic organizations
- Surrendering the defendant’s passport
- Agree to electronic monitoring
The court can present several bail release options. These may include:
- Cash Bail. The defendant is responsible for paying the entire amount of the bail to be released and receive this amount back at the completion of all court appearances.
- Release on own recognizance. If the judge is convinced the defendant is not a risk, he or she may release the defendant on his or her own recognizance.
- Surety Bond. The bail agent guarantees to the court that they are responsible if the defendant fails to appear.
- Property Bond. The court records a lien on the property of the defendant to secure the bail amount.
The Difference Between Misdemeanors and Felonies:
- The consequences for misdemeanors and felony convictions are entirely different. The defendant must understand which crime he or she has been charged with in order to understand what will happen if convicted.
- Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trails are held in the state’s lower court, sometimes referred to as Municipal Court. Examples of misdemeanor crimes include drunken driving, disorderly conduct, and shoplifting.
- A felony crime is punishable by one year or more in a state prison or a penitentiary. Felonies begin in the state’s lower court system but may move up to the state Superior Court, or higher court. Examples of felony crimes include murder, rape, and armed robbery.
What if you’re stopped by the police?
- What you say to the police is always important.
- What you say can be used against you, and it can give the police an excuse to arrest you, especially if you bad-mouth a police officer.
- You don’t have to answer a police officer’s questions, but you must show your driver’s license and registration when stopped in a car.
- In other situations, you can’t legally be arrested for refusing to identify yourself to a police officer.
- You don’t have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ASK TO SEE IT.
- Do not interfere with, or obstruct the police – you can be arrested for it…
- Under no circumstances should you resist arrest or detention.
- Do not attempt to break free and run away. You may be beaten, restrained or killed.
Disclaimer for Attorney Resources
This is from excerpts from Miller and Associates (now Imhoff and Associates); criminal defense attorneys (Understanding the Criminal Process from Arraignment to Appeal) booklet. Copyright 2002. All rights reserved.
They say: this is not meant to be a substitute for a licensed criminal defense attorney and should not be relied on as such. Any advice presented in this booklet is general advice meant to assist in a broad scope. Individual cases will vary depending on the specific facts and circumstances specific to the case. Information in this is meant to assist in obtaining favorable results but does not guarantee any outcome. Its goal is to provide basic concepts of the criminal procedure. Because laws and procedures change, please consult with an attorney. Laws and procedures can also be interpreted differently from state to state. Any advice presented in this is not guaranteed.
….. Bail Bonds or Associates, its staff nor any of its authors, editors, or consultants shall be liable for any unfavorable outcomes or losses suffered by any reader of this website.