FREQUENTLY ASKED QUESTIONS ABOUT CRIMINAL LAW

POLICE QUESTIONING

Q. Am I required to answer questions by a police officer?

A. You should always give your name, address and phone number and any information about your identity, but you are not required to answer anything else. Often, a few polite answers may end the matter, but when the questions become focused and the answers may incriminate you, you should stop answering and demand access to a lawyer. (See further information about your Miranda rights below).

Q. I just got arrested for a DUI, what next?

A. Do not make any statements while in custody. Courts have ruled that laws imposing penalties for refusing a blood or breath test are constitutional.

Hire an attorney you trust and let your attorney know about any issues that might be relevant, including conditions that influenced the arrest. If you were driving with anyone, let your attorney know whom you were with.

Q. What really happens if the police fail to read me my rights?

A. Many people believe that if they are arrested and not "read their rights," they can escape punishment. Not true. But if the police fail to read a suspect his or her rights, they can't use anything the suspect says as evidence against the suspect at trial.

Q. When is the Miranda Warning required?

A. It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect's answers as evidence at trial.

If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.

PRE-ARREST QUESTIONING

Q. Do I have to respond to police questions if I have not been arrested?

A. People are often surprised to learn that if a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the familiar "Miranda warning" that advises people of their constitutional right to not answer questions and to have an attorney present if they do decide to talk to police officers.

A police officer generally cannot arrest a person simply for failure to respond to questions. The Fifth Amendment to the U.S. Constitution guarantees the "right of silence." This means that unless a police officer has "probable cause" to make an arrest or a "reasonable suspicion" to conduct a "stop and frisk," a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.

Q. Must I consent to a search of my car or my house when the police do not have a warrant?

A. No, and I would advise you not to. The police frighten people into consenting to searches when they have no such right. Never consent to a search unless there is a warrant.

Q. Am I entitled to a phone call when I am arrested?

A. Yes, but if you are intoxicated, on alcohol or drugs, the police are not required to allow you a call until you sober up. Likewise, if you are the subject of an investigation and a call from you to someone else might cause evidence to be destroyed or hidden, they are not required to allow you to make the call. You will eventually be allowed to call, but maybe not as quickly as you like.

Q. What are my Rights?

A. Since its inception, the United States has been unique in its concern for fairness and justice in the legal process. Every single citizen and legal resident of the U.S. is guaranteed certain rights under the Constitution. Even those accused, charged, or convicted of a criminal offense still retain legal rights. In the event that these rights are violated at any point in the proceedings from the arrest to the trial, the outcome of a criminal case can, and usually will, change often in favor of the defendant.

If you or someone you know has been charged with a crime, it is vital to consult with a trusted criminal attorney who has extensive experience protecting defendants' rights. Please contact Joe Ingram today for a FREE case evaluation to ensure that your legal rights are protected.

Your Important Rights

Individuals who have been accused or charged with a crime have various legal rights, five of which are extremely important and should always be invoked. They include:

• Defendants Right to an Attorney: Every defendant has the right to obtain legal counsel. If an individual cannot afford an attorney, the court must appoint one at no cost. A defendant can also choose to represent him/herself in court, which is NOT recommended.

• Defendants Right to a Jury Trial: All individuals charged with crimes have the right to a fair, public, and speedy trial. Furthermore, they are presumed innocent unless proven guilty beyond a reasonable doubt by 12 impartial jurors.

• Defendants Right Against Self-Incrimination: A defendant has the legal right to remain silent to prevent self-incrimination. Defendants are also legally eligible to testify on their own behalf.

• Defendants Right to Confront Witnesses: An individual has the right to question and cross-examine every witness that testifies against him/her in trial.

• Defendants Right to Produce Evidence: A defendant may present his/her evidence to the court or file a motion requesting a subpoena to call forth all witnesses and evidence that could favorably determine the outcome of the case, at no cost.

PROCESS OF A CRIMINAL CASE

ARREST

The criminal justice process typically begins when a police officer places a person under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.

BOOKING AND BAIL

After a criminal suspect is arrested, the next steps in the case are the processing of the person into police custody ("booking"), and a determination of his or her eligibility for release from custody in exchange for the posting of a set amount of money ("bail").

Q. How do I make bond?

A. In Alabama you can make bond in three ways:

• You can deposit with the sheriff the exact amount of your bond in cash. This money will be refunded when the case is over.
• You can hire a bondsman. They usually charge from 10 to 15% of the face amount of the bond. This money is not refundable.
• You can post real estate (your house) valued at equal the face amount of the bond and in some counties twice the amount of the bond with the sheriff. This will constitute a lien on your property until the case is over, when the lien will be removed. In some counties they will not allow a defendant to post his own property. He must get friends or family members to do so for him.

ARRAIGNMENT

After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom-based proceedings takes place is the Arraignment

Q. What is an arraignment?

A. An arraignment is the process by which the defendant is read specific charges against him. It is the first step in the criminal process after arrest. It is a brief hearing. All arraignments are conducted after the suspect is arrested and booked by law enforcement. An arraignment takes place only after the prosecuting attorney decides to file charges.

Q. What will happen at the arraignment and what must I do?

A. At the arraignment you will appear before a judge. You may appear alone, or you may bring legal counsel. An arraignment is the time where the judge will ask if the person appearing is the person identified in the charges. In addition, the judge will ask whether you will plead not guilty.

During a typical arraignment, a person charged with a crime is called before a criminal court judge, who:

Reads the criminal charge(s) against the person (now called the "defendant");

Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;

Asks the defendant how he or she answers, or "pleads to", the criminal charges -- "guilty," "not guilty," or "no contest";

Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and

Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

PLEA BARGAINS

Q. What is a plea bargain?

A. The vast majority of criminal cases are resolved through a "plea bargain", usually well before the case reaches trial. In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are generally encouraged by the court system, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.

PRELIMINARY HEARING

Q. What is a preliminary hearing and why are they held?

A. Usually held soon after arraignment, a preliminary hearing is best described as a "trial before the trial" at which the judge decides, not whether the defendant is "guilty" or "not guilty," but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

PRE-TRIAL MOTIONS

Q. What are pre-trial motions?

A. After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

TRIAL

Q. What is a Trial?

A. In a criminal trial, a jury examines the evidence to decide whether, "beyond a reasonable doubt," the defendant committed the crime in question. A trial is the government's opportunity to argue its case, in the hope of obtaining a "guilty" verdict and a conviction of the defendant. A trial also represents the defense's chance to refute the government's evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.

SENTENCING

Q. How is my sentence determined?

A. After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of punishment may be imposed on a convicted criminal defendant, including:

Fines;

Incarceration in jail (shorter-term);

Incarceration in prison (longer-term);

Probation;

A suspended sentence, which takes effect if conditions such as probation are violated;

Payment of restitution to the crime victim;

Community service; and

Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a "pre-sentence report").

The sentencing judge will also consider punishments and sentencing ranges identified in applicable criminal statutes, as well as a number of case-specific factors, including:

The defendant's criminal history, or lack thereof;

The nature of the crime, the manner in which it was committed, and the impact on victims, i.e. whether injuries resulted;

The defendant's personal, economic, and social circumstances; and

Regret or remorse expressed by the defendant.

CRIMINAL APPEALS

Q. May I appeal my case?

A. An individual who has been convicted of a crime may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

The Appeal Process: "Briefs" and the "Record"

In an appeal, the defendant (now called the "appellant") argues that, based on key legal mistakes which affected the jury's decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

In considering an appeal, the court reviewing the case looks only at the "record" of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter's transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

In reaching a decision on the appeal, the higher court ("appellate court") looks to this record and to the written "briefs" filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government's position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

ARRESTED? WHAT NEXT?

When investigating your case, my office will direct any outside investigators to use state of the art databases and equipment to uncover critical information and evidence to defend our clients. Some of the techniques commonly used in criminal defense cases include:

Crime Scene Investigations

• Photographs/Videos
• Sketches, Diagrams and Measurements
• Witness Interviews
• Follow Up and Development of Leads
• Police Interviews
• Fire/Rescue Ambulance Interviews
• Victim Interviews
• Secondary Forensic Evidence Testing
• Witness/Suspect Location
• Polygraph Examinations and Interpretations
• Background Investigations of Involved Parties
• Confidential Informants and Sources

Pre-File Investigations

• Polygraph Examinations and Interpretations
• Police Investigations
• Psychological Experts
• Photographs of Location and Victims
• Locating Other Wrongly Accused Individuals
• Computer/Internet Experts
• Confidential Informants and Sources
• Public Record Searches

The investigators use all appropriate means to obtain the evidence or statements needed to get the results you deserve!

FIGHT YOUR CASE BEFORE IT GOES TO COURT

My office knows the importance of fighting a criminal complaint before charges are filed and the case goes to court.

If a Pre-File Investigation Client is contacted by a law enforcement agency, however, charges have not actually been filed.

1. Goals of a Pre-File Investigation:
   • Prevent filing.
   • Reduce Charges; ie, felony to a misdemeanor.
   • Divert allegations into an informal resolution.
   • Ease clients' concerns about the case.
   • Keep clients apprised of legal rights.
   • Assist with surrender and avoid arrest
2. Ways to prevent charges from being filed:
   • Bolster clients credibility
     1. Private polygraph if the results are favorable, then they will be shared.
     2. Reference letters from community leaders, religious leaders, teachers, friends, etc.
   • Attack complaint credibility of the victim
     1. Use other witnesses to question the reputation and truth of the victim.
     2. Unsubstantiated allegations against others made by the victim.

If you or someone you know has been charged with a crime, it is vital to consult with a trusted criminal attorney who has extensive experience protecting defendants' rights. Please contact Joe Ingram today for a FREE case evaluation to ensure that your legal rights are protected