In our last blog, we gave some tips and information on what to expect with a DUI charge. As criminal defense lawyers, we received numerous requests on what to do or expect if one is charged with a criminal offense. In response to these requests, we have included more tips and hints in case you or a loved one is ever arrested. While our criminal law practice is based in Pinellas, these tips are relevant to ALL parts of Florida.
The following is a general description of the criminal justice system and what you can expect in the months to come. This form was created as a guide to assist you. Please remember, every case is factually and legally different from all others. As a result, some of the information on this form may not apply to you and/or your case.
Right now, you probably have many questions. Rest assured, that is very normal. You are not the first person, and certainly won’t be the last, that has general questions about the criminal justice system.
Your criminal defense lawyer been hired to help you. You should help them by understanding and following these basic instructions.
1. You are charged with a crime. This means the police think you are guilty. You may or may not be guilty. Either way, the most important rule to follow at all times is: Never talk to anyone except your defense attorney or your attorney’s staff about your case. Do not explain yourself. Do not say anything to anyone about your situation and/or case. Even if you say something perfectly innocent, there may be a way to use it against you and anyone can be used as a witness against you, even your relatives, friends and cellmates. Don’t even risk taking the chance.
2. If you are innocent. Feel confident it will come out that way. You cannot talk your way out of being charged with a crime so don’t say anything to anybody about the case. Somebody thinks you are guilty and anything you say might complicate the job of establishing your innocence.
3. You may be guilty. Even if you feel you’ve done something wrong, don’t be discouraged. You may be guilty of a less serious offense than the one you were arrested for or are currently charged with. Even if you are proven guilty, your attorney can still help you get the best sentence available – whether probation, a short jail sentence or otherwise.
What you need to do to help yourself
1. Tell your Pinellas criminal defense attorney the whole story. You must be completely honest with your attorney. Our job is to help you and we are not allowed to tell anybody what you have told us except to help you. If you lie to your lawyer, they may take action on your behalf which will be impossible to correct when the truth comes out. If you have already told us something that is not true, do not be afraid to tell us the truth now. We will not be angry at you. We need to know the whole truth so we can represent your best interests without being surprised later on after it’s too late to change our strategy.
2. Behave yourself. Between your arrest and your trial and/or sentencing you must stay out of trouble. The last thing you need is to go to trial with another problem hanging over your head. Do not go and talk to potential witnesses. Do not try to justify yourself to anyone. Your friends don’t need to hear it and people who think you are guilty won’t believe it. The only person you should communicate with about your case is your attorney.
3. If you are in custody/jail. Be aware that telephone calls are monitored by law enforcement. Be aware that your in-coming and outgoing mail may be opened and read. Mail to and from your attorney will not be read if you write “Attorney Client Legal Mail” on the envelope. Be aware that you may have to get prior approval before your family will be allowed to visit you. If you want family members to visit, talk to the jail personnel about getting them on your approved list of visitors and/or telephone numbers you are allowed to call. Be aware that in order to purchase things in the commissary or make long distance telephone calls, you must have money deposited into your account with the jail.
Terms you need to know
1. “Arraignment” The arraignment is really just an administrative hearing where you will be formally charged with a crime and asked to respond by pleading guilty, not guilty or no contest. In almost all situations, criminal attorneys prefer that their clients plead not guilty at the arraignment because the plea can always be changed later depending on what the attorney discovers during his or her investigation.
2. “Arrest” When the police detain a person in any way that makes it clear that they are not free to leave. Before the police can ask you any questions about your involvement in or knowledge of a crime, they must read you your “Miranda warnings” and tell you that you have the right to remain silent and that you have the right to speak with an attorney before you answer any questions.
3. “Bail” Bail is money that is given to the Court to hold while your case is pending to guarantee that you will show up to court when you are required to do so. You are allowed to post bail while your case is pending except in cases of first degree murder and violations of probation. The amount of bail usually depends on the local bail schedule which is based on the seriousness of the crime you are charged with, any prior criminal record you may have and any prior instances in which you may have previously failed to appear in court. The judge may lower the bail amount if your attorney shows that you are unlikely to run (for example, that you have strong ties to the community by way of a steady job, local family, etc.). You may not get all of your bail money back at the end of your case as the courts are frequently using that money to apply to any fines and/or costs associated with your case.
4. “Bail Bond” Money that is given to the court by a “bondsman” to guarantee that you will show up to court when you are supposed to. A bondsman is a person who charges a fee (usually 10% or 15%) for posting the bond. If you do not appear in court when you are supposed to, the bondsman may lose his or her money or property. Usually, the bondsman will look for you and bring you back to court, forcefully if necessary, in order to get their money back.
5. “Charge” A formal accusation of criminal activity. The prosecutor decides on the charges after reviewing police reports, witness statements and any other evidence of wrongdoing. Formal charges are announced at the Arraignment.
6. “Plea” The defendant’s formal answers to criminal charges. There are three options: guilty, not guilty and no contest.
7. “Plea Bargain” A negotiation between your attorney and the prosecutor. The defendant usually pleads guilty to a lesser crime and/or fewer charges in exchange for a guaranteed sentence that is shorter than what you would get if you were convicted at trial.
The process — what happens next?
1. “Arrest” If you were arrested, this means that the police took you into custody and think you are guilty of a crime. Before the police are allowed to ask you any questions about any crime they think you might be involved in or have knowledge of, they are required to read you your “Miranda warnings.”
2. “Reading Your Rights” At some point the police should have told you that: 1) you have a right to remain silent; 2) that anything you say can be used against you; 3) that you have a right to speak with an attorney; and 4) that if you cannot afford an attorney one will be provided for you. It is important for your attorney to know if and when this happened.
3. “Booking” After you are taken into custody the police will take your photograph and fingerprints at the local jail and/or police department.
4. “First Appearance or Advisory Hearing” Usually, within 24 hours of your arrest you will be brought before a judge (either in person or by video). At this hearing, the prosecutor tells the court what you have been arrested for. This is not the time to discuss your case with the judge. Please remember, someone from the prosecutor’s office will be present and will be taking notes and/or ordering the transcript if you make any statements about your case. Usually, the judge you see at your first appearance or advisory hearing is not the judge who will handle your case after that point. Therefore, telling your side of the story to the judge only helps the prosecutor.
5. “Indictment” This usually only applies in capital cases (i.e., first degree murder or felony murder). After your first appearance, where you’ll learn what you were officially arrested for, the prosecutor will show their evidence to a grand jury. This is an entirely one-sided proceeding. Neither you nor your lawyer is allowed to participate. If the grand jury believes there is enough evidence against you, it will issue an indictment. The indictment (silent “c”) is the formal charge or charges against you.
6. “Discovery” After the State files formal charges against you, you have a right to see all the evidence that the prosecutor has including questioning the State’s witnesses. This process may take several months. Towards the end of the discovery period, your lawyer and the prosecutor may begin to negotiate or bargain the charges against you. This is called “plea bargaining.”
7. “Trial” If your lawyer is unable to negotiate a satisfactory plea bargain with the prosecutor, you may elect to have a jury trial. In a jury trial, the prosecutor goes first and tells their whole case to the jury. Witnesses for the prosecution are called to testify and evidence against you is presented in court. After the prosecutor is finished, your lawyer will have an opportunity to tell your side of the story. Your lawyer will get the chance to question each of the prosecutor’s witnesses and each item of evidence presented against you. Your lawyer may use any one of a number of different strategies to defend you during a jury trial. This will all be discussed with you in further detail, at a later date, if your case reaches that point.
8. “Sentencing” If the jury finds you guilty and/or you plea guilty or no contest to any charge(s), it is up to the judge to determine what your ultimate sentence will be. The sentencing can happen at the time you enter a guilty or no contest plea, or it can be set off for a future date where we can present witnesses or evidence on your behalf.
While by no means inclusive, we hope that these last two blog posts gave you a better understanding of the justice system.