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Criminal Defense - An Overview
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| Our criminal justice system can be overwhelming and frightening. The incarceration rate in the United States is much higher than that of other industrialized countries. Prison sentences are getting longer and more frequent. If you face the possibility of being accused of a crime, contact an experienced criminal defense lawyer as early in the process as possible, preferably even before questioning or investigation by the police. A skilled attorney can fight for your legal and constitutional rights. |
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Constitutional Protections for the Criminal Defendant
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| The United States Constitution and its subsequent amendments define the scope of governmental power and reserve certain individual rights to the people. The first 10 amendments, also called the Bill of Rights, contain basic, fundamental rights of individuals on which the government may not impinge. Many of these constitutional rights provide protection to criminal defendants in the criminal justice system. The Fourteenth Amendment extends substantive due process rights beyond just the federal system to criminal defendants in state courts where the vast majority of criminal trials occur. |
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| The basic constitutional rights of the criminal defendant permeate every aspect of the criminal justice process. If you have been accused of a crime, whether federal, state or local, a seasoned criminal defense attorney can explain these rights to you and help you to fight for them at every step of the way. |
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Classifications of Crimes
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| Because the negative behavior regulated by the criminal laws ranges from the significant to the relatively insignificant, crimes are classified into levels or degrees. The classification of a crime reflects its seriousness. The actual classification of a particular offense varies depending on the jurisdiction. If you are questioned about a crime or are accused of or arrested for a crime, you should consult an experienced attorney as early in the process as possible. A criminal defense lawyer can explain the particular crime involved and its possible ramifications. |
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| The Right to Counsel |
| The Sixth Amendment of the U.S. Constitution guarantees the right to an attorney to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges. Those who are indigent and cannot afford an attorney have the right to have one appointed to them for free. Most people, however, do not understand what the right to an attorney means, when this right attaches or who qualifies for a court-appointed lawyer. |
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| If you are accused of a serious crime, it is essential that you retain the services of an experienced criminal defense lawyer to fight for your legal and constitutional rights throughout the criminal justice process. |
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| Finding a Job After a Criminal Conviction |
| If you have been convicted of a crime, you may wonder if you will be able to find employment. Employers are becoming increasingly concerned about knowing whether applicants have criminal records. Part of this concern stems from large jury verdicts that have been rendered against employers for negligently hiring people with criminal histories who subsequently caused harm to others while on the job. Another concern for employers relates to whether they will have to disclose the criminal conviction. For example, if a company is trying to raise capital, it may need to make certain disclosures to a bank. Will the company have to disclose that an employee has a criminal conviction for embezzlement or money laundering? |
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| The laws about which criminal records an employer must or may access, what an employer may ask a potential employee and what the job applicant must reveal vary widely from state to state. If you have a criminal record and seek a job, it is in your best interest to consult with an attorney knowledgeable in criminal law so that you go into the job search fully informed of your rights. |
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| The Arrest Process |
| When someone is arrested by the police, a specific series of events follows. While the suspect is in custody, police must follow specific legal procedures. An arrest occurs when police take you into custody and you are not free to leave. Arrest is a legal term that means you are no longer free to walk away from the arresting officer. |
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| In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona, that individuals who are under arrest for suspicion of having committed a crime have certain rights that must be explained to them before any questioning by law enforcement authorities. These rights are designed to protect your right to be free from self-incrimination under the Fifth Amendment to the United States Constitution. There are five different rights, known as the "Miranda Rights," and they are as follows: |
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| You have the right to remain silent and to refuse to answer questions. |
| Anything you say may be used against you in a court of law. |
| You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. |
| If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. |
| If you decide to answer questions now without an attorney present, you will still have the right to stop answering questions at any time, and refuse to answer any additional questions until you talk to an attorney. |
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| These Miranda rights must only be read when an individual is in police custody and is under interrogation. Therefore, if the police stop you to give you a traffic ticket, and you start explaining to them why you were speeding, you cannot later protest that you were not read your Miranda rights. While the police may have been "interrogating" you in a certain sense, you were not in police custody unless your freedom of action was curtailed to a degree associated with formal arrest; see your state laws for a definition of police conduct that would be associated with formal arrest. |
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| If you are stopped by the police, they may frisk you by performing a "pat-down" of your outer clothing in order to determine if you are concealing a weapon. Later, after your arrest, they may perform a full-body search of your person and immediate surroundings to ensure that you do not have any weapons, stolen items, contraband, or evidence of a crime. If the police take possession of your car, it may be searched as well in what is sometimes called an “inventory search.” |
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| In many jurisdictions, you have the right to make a telephone call, or calls, once you are placed into custody. In some states, you are only allowed to call someone in order to secure a lawyer or to arrange for bail, although you may be able to call a family member or a friend to help you make those arrangements. Generally, you are not entitled to make a telephone call until after you have been “booked” into custody. |
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| The police may take any personal property or money that you have with you and put it in a safe place after performing an inventory. The police will ask you to sign the inventory and, after reviewing it, you should do so, if you agree with the contents of the inventory. Once you are arrested, you will be booked. During the booking procedure, the police will ask you for basic information about yourself (such as your address and birth date). You will also be fingerprinted and photographed. You may also be asked to participate in a line-up or give a handwriting sample. All of this is procedure that the police are permitted to follow. |
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| If you are detained but not booked within a reasonable period of time (usually several hours, or overnight) your attorney may go to a judge to obtain a writ of habeas corpus. A writ of habeas corpus is an order issued by the court instructing the police to bring you before the court so that a judge may decide if you are being lawfully held. Once you are arrested by the police, the information about your case will be provided to the appropriate prosecutor's office. The prosecutor will then review the information before making an independent decision about what charges, if any, should be filed. |
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| The Charging Decision and Initial Appearance |
| If you have been arrested for a felony, a prosecutor may enlist the services of a grand jury to review the available information in order to determine what crimes you should be charged with committing. If you are placed in custody, you have the right to appear in court, hear the charges filed against you, and enter a plea within a reasonable amount of time. This usually means that the prosecutor must decide within seventy-two hours which charges, if any, will be filed against you. A prosecutor is not bound by the initial charging decisions, and may later change the crimes with which you will be charged once more evidence is obtained. |
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| The required time period in which a prosecutor must file an initial charge varies from jurisdiction to jurisdiction. While many state laws require the decision to be made within seventy-two hours, other states, such as California, require that the decision be made within forty-eight hours after a suspect is taken into custody. You will have an appearance in court, called an arraignment, at which point the charges against you will be read to you and you will be asked whether you plead guilty or not guilty to those charges. Some courts permit a third possible type of response to an indictment that called "nolo contendere" or "no contest." Nolo contendere is a response to charges that you will not contest the charges made by the government. The plea of nolo contendere cannot be used in other aspects of a criminal trial as an admission of guilt, but can be used only in this phase as an implied confession of the specific offense charged and an admission of the facts stated in the indictment. A plea of nolo contendere is only accepted by the court if the judge feels that it is a voluntarily and well-informed plea. |
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| Bail |
| If you are placed in jail, you may be able to get out prior to your trial if you "post bail." Bail is a court-determined sum of money that you pay to the court in order to ensure that you will appear in court when told to do so. If you do appear as required, the bail will be refunded to you once the case against you is concluded. If you do not show up or flee the jurisdiction, the court keeps the money and can issue a warrant for your arrest. |
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| Bail may be paid in cash or in a cash equivalent. You may also be allowed, depending upon the circumstances, to post a bond. A bond is a guarantee of payment of the full bail amount should the need arise. In other situations, you may be allowed to be "released on your recognizance." This means that the payment of bail is waived on condition that you appear in court when required. This is generally used in crimes that are minor in nature or in situations in which the judge is of the opinion that you are a trustworthy individual who is unlikely to flee the jurisdiction. |
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| Not every arrested individual is entitled to bail. In particularly heinous crimes, where the defendant is a flight risk, or when the court is concerned that the defendant may harm members of the public, bail may be denied and the defendant will be kept in jail as a "pre-trial detainee." You may also be considered a "pre-trial detainee" if you are unable to post bail for your release. |
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| The judge is responsible for setting your bail. In many jurisdictions, there is a pre-set schedule listing the bail amounts for particular crimes. In other situations, bail may be determined on a case-by-case basis. The Eighth Amendment to the U.S Constitution requires that bail not be excessive. |
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