What Should I Do If I Have Been Arrested?
If you or someone you know has been arrested, you should contact a lawyer immediately. It is very important that a person who is arrested not make any statements to the police or other government officials. If a person who is arrested wants to tell his side of the story, this is not the time to do it. Police are allowed to make all sorts of promises that they do not have to keep. In many cases, when a person speaks to the police or other agency after being arrested they do themselves more harm than good.
When a loved one is arrested, relatives often may feel that he or she must be at fault or must have deserved to be arrested. This certainly may be true. However, the person arrested still needs all the support he can get from his family and friends. Spending time in jail is a horrible, dangerous experience. Finding a person once they have been arrested in New York can be difficult, stressful task. New arrests are theoretically processed within 24 hours, but a person who later turns out to be perfectly innocent can languish in jail long enough to lose her job and put her children in jeopardy. If someone you love is in jail, no matter how you feel about it, you should make sure she has a lawyer she trusts and support her however you can until she is freed.
When someone is arrested, an attorney must appear with that person before the judge. Most courts have attorneys available on call who represent defendants who cannot afford to pay for their own attorney.
What Happens Before the Trial?
Once a defendant is released "on bail" or "on his own recognizance," one or more court dates are set for preliminary hearings, motion practice and trial. Most cases are assigned to a particular prosecutor. A lawyer can assist a defendant in speaking with the prosecutor to work out an agreement known as a plea agreement. In a plea agreement, the defendant agrees to "plead guilty" — i.e. swear on the record that he committed some crime. In return, the prosecution may reduce the charges or agree to a lower sentence. Once a person pleads guilty, it is very difficult to "un-do" or vacate the guilty plea. Therefore, anyone even considering a guilty plea should consult with a lawyer that he or she trusts before going through with the plea.
If no agreement can be worked out, the prosecutor may seek an "indictment" — a formal charge brought in more serious cases — and the lawyer and client may decide to go to trial.
If the defendant chooses not to accept a guilty plea, in most cases his or her lawyer will defend the case in court by filing motions and seeking "discovery" — i.e. information that the prosecutor knows about the case. Motions can request dismissal of the case, exclusion of certain evidence and various other sorts of relief. Discovery in a criminal case is very limited. Usually, the prosecution will hand over only things taken from the defendant and some other documents such as laboratory tests. The most important documents — police reports, witness statements etc. — are generally not handed over until just before trial. However, clients should keep in mind that they have a constitutional right to materially exculpatory evidence in time for its effective use at trial.
What Happens During the Trial of a Criminal Case?
At every serious criminal trial in the United States, the prosecutor must prove to a jury beyond a reasonable doubt that the defendant committed the crime charged. The defendant does not have to prove his or her innocence. The prosecutor typically will call one or more witnesses to testify. In some cases, the witnesses are people close to the defendant who claim that the defendant committed a crime. The defendant has a right to testify or compel others to testify on his behalf. Trials can be completed in one day or can last for many months. In general, crimes that are complicated carry more serious penalties require longer trials.
What Will the Sentence Be If I Lose?
If the defendant is convicted at the trial, the case is set for sentencing. Sentencing in state court is very different from sentencing in federal court. In New York State courts, judges typically have a wide range of sentences they can impose including fines, imprisonment or community service, among other things. In federal courts, judges until this year were required to follow the United States Sentencing Guidelines. However, the Supreme Court ruled on January 12, 2005 that these mandatory guidelines are unconstitutional. The guidelines are therefore now merely advisory, though they still have great influence in federal cases. An accurate understanding of the potential Sentencing Guidelines is essential for defending a case in federal court.
What Can I Do If I Have Already Been Convicted?
Once a defendant is convicted and sentenced, she may appeal either the conviction or the sentence. Appeals are tough to win — but some trials contain errors that can lead to reversal. In order to appeal, you must file a "Notice of Appeal" as soon as your case ends in the lower court — make sure to ask your lawyer about this. Even if a person loses on "direct appeal," he may still pursue his case through "habeas corpus" which is available both in state and federal court. This so-called "post-conviction relief" is even more rarely granted — but it gives a sliver of hope to those who are wrongly convicted and lose on appeal.
Finally, the consequences of a felony or even misdemeanor record can be severe even after the prison sentence is served. A person can be denied employment, deported, or in some states lose the right to vote as a result of a criminal conviction. Some of these disabilities can be avoided in certain circumstances.
What Should I Do Next?
If you are charged with a crime, please email us at info@zmolaw.com for more information on how we might be able to help. Please do not include any details of the crime in your email.
Disclaimer: This website is for informational purposes only; it does not constitutes legal advice and is not a substitute for obtaining advice from a licensed attorney. No attorney-client relationship is created by reviewing this website. Please see our disclaimer and terms of service for more information.
