Frequently Asked Questions

What happens after a conviction?
In most cases, after either a plea of guilty or a finding of guilt after trial, the following options may be available

• Motion for new trial OR Motion to withdraw guilty plea These two motions must be addressed on a case-by-case basis, but both motions attempt to set aside the conviction.
  
  
• Appeal
  Again, the facts of each case must be examined to determine if one can bring an appeal and, if so, whether it would it have merit.
  
  
• Modification of sentence
  It is possible in some cases to come back before the sentencing judge and ask for modifications on some of the terms and conditions of probation.
  
  
• Expungement
  In some cases, after a person has successfully completed the terms and conditions of probation, it may be possible to appear before the court and have the conviction expunged or removed from your record.

What is an appeal?
A defendant who is found guilty of some or all charges is entitled to an appeal to at least one level of appellate court. There are several levels of courts to appeal to; an example would be appealing to the circuit court of appeals first and then up to the next level. This can potentially continue on until it reached the Supreme Court of the United States. An appeal is a formal request that a higher court review the decisions or actions of a lower court. The defendant that is found guilty in the lower court usually makes an appeal. Some grounds for an appeal may include insufficient evidence, violation of rights or possible mistakes made by the judge or even how the jury handled the case.

What happens at an arraignment?
You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set.

If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.

Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.

If misdemeanor charges are not dropped, a trial will be held later in county court of law. If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.

What is bail?
Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.

What happens at a bail hearing?
The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results. A judge holds an official arraignment later.

There are four possible results from the bail hearing:

• Recognizance - This is the defendant's written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required.
  
  
• Unsecured Bond - This release pending court appearance is based on the defendant's written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
  
  
• Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
  
  
• Ineligible for Bail - The defendant is denied a release pending court appearance.

The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.

What are the basic elements of a crime?
No one definition of crime applies to all situations, a simplistic working definition of crime may consider three elements that occur in most crimes:

• Mental State (mens rea)
• Physical State (a component of actus reus)
• Social Harm (a component of actus reus)

Am I entitled to a jury trial?
You have a right to a jury trial, but you must ask for it. If you do not ask for a jury, only the judge will be at your trial. The jury decides if you are guilty or not guilty. Your lawyer should help you make this very important decision.

What is a Miranda warning?
A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answer any questions.

If I am not under arrest, do I have to answer a police officer`s questions?
No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual.

EXAMPLE: Tommy is walking down the street and approached by Officer Doright. Officer Doright begins to question Tommy about a bank robbery that happened a few days ago. The conversation looks like this:

Officer Doright: Hey, excuse me, I would like to ask you a few questions.
Tommy: um, ok, what is this about?

Officer Doright: I'm investigating a robbery that happened a few days ago, I thought you might be able to give me some information.

Tommy: I just got back in town today from Europe, I really don't think that I can help.

Officer Doright You just got back, that's interesting, you fit the description of the robber that the bank teller provided.

Tommy: Excuse me Officer, am I under arrest? Officer Doright: Umm, well no, but if you have something to say, I promise to help you out.

Tommy: No thanks Officer, you have a nice day. Tommy then continues with his walk home from the airport.

Must a police officer always advise a person of their Miranda rights before asking a question?
No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.

For example: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have seen the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary's statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to.

If I am in custody, how do I assert my right to remain silent?
A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect's 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court.

Can I waive my Miranda rights?
Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court.

But the police officer said that if I talked, he would help me out.
This is something police officers always say. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge.

Can I answer not guilty even if I am guilty?
You are innocent until you are proven guilty. Your lawyer may think that the evidence against you is not enough to prove that you are guilty. You may have a better chance if you have a trial. You have a trial only if you plead not guilty.

What is a plea bargain?
Settling a criminal case is usually called a plea bargain. It means that the prosecution and the defense come to an agreement to resolve the case. The case can be settled at several points during the process, from before it is charged all the way to trial's doorstep. Usually, however, the best bargain can be obtained earlier rather than later in the process. But usually doesn't mean always. And in many cases it is a question that should be analyzed immediately so that good opportunities to settlement aren't given up because of pride or inattention.

Can I be arrested for questioning?
No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. It is not advisable to speak with the police until you have first spoken with your attorney. You should ask for a lawyer or independent witness to be present during questioning.