CRIMINAL DEFENSE AND WHAT YOU SHOULD OR SHOULD NOT DO
Being accused of a crime is a frightening thing. Being found guilty of a crime can result in jail time and/or a range of lesser punishments. It is important that everyone know their rights and what they should or should not do if arrested or charged with a crime.
A person can be accused of a crime in a number of ways. A person can be arrested, summonsed to court for a show cause hearing, summonsed to court for arraignment on a complaint or summonsed to court for arraignment on an indictment.
If a police officer witnesses a crime, he or she can usually arrest the person or persons the officer saw commit the crime. If a police officer receives information that the officer believes constitutes a crime and also identifies the person that supposedly did it, he can still make an arrest if (1) the information received adds up to what is called probable cause and (2) it is an emergency. If there is no emergency, the police officer must go to court and convince the court to issue an arrest warrant. The police officer can then use that warrant to arrest the accused person. Except in rare cases, an arrest results in the court issuing a criminal complaint, which is the official start of most criminal cases.
Resistance is Futile
What should you do if you are arrested? First and foremost, do not resist! Under proper circumstances the law gives the police the power to arrest on the spot. Part of that arrest power is the right to use reasonable force to make an arrest. If you run, they can chase you down. If you push, they can push back, tackle you and cuff you. If you take a swing they can pepper spray, club and/or taze you. If you use a weapon they can kill you!
Also, don’t be jerk. Do not make the job of the arresting officer(s) any more difficult. Arrestees that do what they are told and treat the police in a civil manner get better treatment from the police. If you mouth off or otherwise make things difficult they will find ways to make your arrest even less fun than it already is. Keep your mouth shut except to provide identifying information. Don’t even provide identifying information beyond your name if it will get you in trouble. You have the right to remain silent.
Where’s My #@%! Lawyer?
You also have the right to a talk to a lawyer before answering any questions. If the police start to ask you questions, politely ask to see a lawyer. If you cannot afford to hire a lawyer, the state must provide one for you. As you might expect, the police hate this sort of thing. Don’t worry about that. Continue to be polite and otherwise cooperative. They have no choice but to honor your request. They may hint that skipping the lawyer may result in lesser charges or earlier release or that asking for a lawyer means you are guilty. None of that matters. Do not ever give up your right to a lawyer.
As a practical matter, the police themselves will not usually get you a lawyer. They will, either take you to court, and have the court get you a lawyer, or they will call a bail commissioner or clerk-magistrate to set bail or release you until the next court session for arraignment.
The Real Serious Stuff.
If you are arrested for a very serious crime or the police, because of who you are, really want to get you, they just might arrange for a lawyer to come see you in the lockup. Listen to lawyer very carefully, honestly answer the lawyer’s questions (everything you tell your lawyer is confidential) and do whatever the lawyer tells you to do. If this situation is a big deal, be prepared to be stuck in lockup for a while.
SUMMONSES TO COURT
Summonses to court are used in four ways in criminal cases. One of those, a summons to a witness to appear at trial and testify, is not related to this discussion. We are talking about being charged with a crime, not about being a witness. If a person is going to be charged with a crime, and they are not arrested, they will be summonsed to court.
If the police or a private citizen goes to District Court and asks the court to issue a criminal complaint against someone, that court has a choice. If the information presented constitutes the elements of one or more crimes and the person accused is clearly identified, the court can go “straight to complaint” by issuing a criminal complaint and a summons commanding the person accused (the defendant) to appear at court for an arraignment. If the court has doubts about the quality or quantity of the information presented, the court can instead issue a summons to the accused person for a show cause hearing. Show cause hearings are most common where a private citizen alone is asking the court to issue a criminal complaint.
Both the accuser and potential defendant must attend the show cause hearing. Show cause hearings are usually conducted by a clerk-magistrate or an assistant clerk-magistrate. Show cause hearings are usually conducted informally. The accuser tells his or her story and the potential defendant can, if he or she wishes, respond.
The standard of proof at a show cause hearing is probable cause. Probable cause is a pretty low threshold. In other words, the accuser can make a showing of probable cause so long as his or her story, if believed, constitutes all the elements of one or more crimes and clearly identifies the potential defendant. If the clerk-magistrate or assistant clerk-magistrate believes that probable cause has been satisfied, he or she will issue a criminal complaint and a new summons that tells the defendant when to return to court for arraignment.
Lastly, in cases of more serious crimes, a person can be summonsed to Superior Court if the grand jury issues an indictment. A grand jury indictment is much like a District Court criminal complaint. However, instead of a clerk-magistrate issuing a criminal complaint directly or after a show cause hearing, indictments are issued, or handed up, by what is called a grand jury. A grand jury is group of 23 ordinary citizens that are brought together, by yet another kind of summons, for the purpose of listening to evidence presented by the district attorney and deciding if that evidence meets the probable cause standard of proof. If probable cause is satisfied the grand jury produces an indictment. That indictment is given to the Superior Court. The Superior Court then issues a summons to the defendant for arraignment.
What should you do at a show cause hearing. First, prepare for it. If there are witnesses or documents that can prove the accuser is lying, mistaken or that somebody else did it, bring them to the show cause hearing. You and your witnesses should dress in clean, neat conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings. Bling sends the wrong message.
Listen carefully to the instructions as to how the hearing will be conducted and follow those instructions. Don’t let your emotions get the better of you. Don’t react to the accusations, snide remarks and sarcasm of the other side. Concentrate on making a clear presentation to the clerk-magistrate, if you plan to say anything at all. If the plan is to just listen, just sit quietly. Remember, the standard of proof at a show cause hearing is very low. Chances are that a criminal complaint will be issued. Don’t get upset if that happens. This is still the very beginning of the case. There will be plenty of chances to go on the offensive as the case goes forward.
You have no right to a court appointed lawyer at a show cause hearing. If you can, hire a lawyer to help you prepare for and go with you to the show cause hearing.
Regardless of how, by arrest or summons, a defendant is brought to court the first time, that first appearance at court will usually be for arraignment. Arraignment has four purposes. One, inform the defendant of the charges against him or her. Two, set bail. Three, schedule the next court date. Four, find out if the defendant will be given a court appointed lawyer, will be hiring his or her own lawyer or will be going forward without a lawyer.
When the case is called, by the clerk stating loudly: Commonwealth versus (name of defendant), the defendant walks forward to near the clerk’s bench (desk). The clerk will then read the charges, thereby officially informing the defendant of the charges on the record. The record is simply the audio recording and/or court reporter record made of all court proceedings. The reading of the charges is usually waived if the defendant already has a lawyer with him or her at the time of arraignment.
The judge will then tell the defendant about some of the legal rights the defendant has and will usually automatically enter not guilty pleas on all the charges. The judge will then ask the prosecutor, usually an assistant district attorney (
If bail is not an issue, the judge will ask the defendant if he or she has, or will be hiring, his or her own lawyer or if he or she wants a court appointed lawyer or if he or she will be going forward without a lawyer. Do not go forward without a lawyer unless the judge is also offering to dismiss the charges right then on payment of court costs. That kind of offer by the judge, which is sometimes made on minor charges to defendants with little or no previous criminal record, is usually a good deal and worth taking. If you have any doubts, ask for a lawyer.
If you cannot afford a lawyer, tell the judge you want a court appointed lawyer. If you qualify, your case will probably be assigned to a lawyer in the court room right then. If you intend to hire a lawyer, but that lawyer is not there with you, tell the judge you need time to hire a lawyer. The judge will then set a further court date about two weeks later to give you time to hire a lawyer.
If your lawyer is there with you or you are given a court appointed lawyer, further court dates, often called pre-trial conferences, pre-trial hearings or status conference, will be set. You will then be given a date slip with the next court date. You can then leave.
If there is a bail hearing, and you are ordered to pay money to the court to guaranty that you will show up for the next court date (called posting bail), you will not be able to leave until that money is posted. In fact, you will be sent to the county jail and kept there until the bail is posted or your case is finished! If you post bail, show up every time you are supposed to show up and stay out of trouble, you will get the bail money back when the case is finished. If the judge decides you do not have to post bail, you will be released in exchange for your promise to return when told and further court dates will be scheduled. This promise to return is called your recognizance. You can then leave.
At some point during all these events at arraignment, you or your lawyer will be given some documents by the assistant district attorney. These documents contain important information about the case against you. If your lawyer is not there at arraignment, make sure you give these documents to your lawyer as soon as possible.
The Do’s and Don’ts
How should you handle arraignment? Be five minutes early. If you are going to be late, call the court and tell them before the time you were supposed to arrive. Dress in clean, conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings. Bling sends the wrong message.
No attitude! Even if you are completely innocent and this whole thing is an outrageous travesty of justice, in court you are humble, quiet and polite. If you speak to the judge, end every sentence with the phrase your honor. Treat everyone, especially all court personnel, with respect and courtesy. Do not talk to, glance at, smile at, frown at or in any way acknowledge the existence of anyone on the other side of your case or remotely connected to the other side of your case. They will try to get you in trouble if they can. Do not talk to anyone in the court room while you are waiting for your case to be called. Do not read a newspaper, magazine, book or anything else. The only exception is that you can read the papers given to you in court by your lawyer, the
If you have a lawyer, do everything your lawyer tells you to do. If at all possible, hold questions for the end. You and your lawyer cannot talk in the court room while court is in session. If you and your lawyer step into the hall to talk, you may miss the call of your case and have to wait to the end.
Once the arraignment is over, you and your lawyer will be involved in information gathering and decisions. While what your lawyer has to say is always very important, you have to make all the big decisions. You decide whether or not to testify at trial. You decide whether to take a plea bargain offered by the prosecution or whether offer a plea directly to the court. You should discuss these important decisions in detail with your lawyer and consider carefully you lawyer’s recommendations. However, it is your life. Once your case is over, your lawyer just moves on to the next one. You are the person that must live with the consequences of your decisions, including the decisions you make in the conduct of your case.
The Thrill of Discovery
Lawyers refer to the information that is passed back and forth between the prosecution and defense in the pre-trial phase of a case as discovery. Without getting into the fine details, the law requires the prosecution to turn all the information they have about the case, especially information that might help the defense, over to the defense. This required disclosure includes witness information, documents, photographs, objects, test results and reports. The law also requires the defense to turn over to the prosecution all witness information and all the documents, photographs, objects, test results and reports that might be used in evidence at trial.
If there are any disputes about this information exchange, the case may end up back in court to get orders from the judge about the information in dispute. However, in most cases, the so called discovery phase goes smoothly.
One Day You Are In (evidence) and the Next You Are Out
Perhaps the most important thing that happens between arraignment and a plea bargain or trial or dismissal is a motion to suppress evidence. By way of background, in order to get a conviction, a finding of guilty at trial, the prosecution must convince a judge or a jury that the defendant guilty by presenting evidence (witness testimony, documents, objects, etc.) in court at a trial. If any of that information was obtained by the prosecution, or anyone working for the prosecution, illegally then that information cannot be admitted in evidence at trial. As you have probably guessed, if the evidence that gets knocked out is critical to the prosecution’s case, the case could be dismissed.
Information is obtained illegally when it is obtained using methods that violate constitutional rights or other important laws. One example is if the police continue to question a suspect under arrest after he or she has asked to talk to lawyer. Any information obtained by continued police questioning after that request for a lawyer will probably be kept out of evidence, or suppressed, at trial.
Because the question of what information will or will not be allowed to be presented at trial is so important, it is often decided long before trial by a separate hearing on what is called a motion to suppress evidence. In every criminal case, lawyers look very carefully at the information that has been gathered by the prosecution and how that information was obtained. If there is even a chance that evidence was gathered illegally, your lawyer should write up a motion (request) to suppress evidence and file it with the court.
The court will hold a hearing, a kind of a mini-trial, on the motion to suppress evidence and decide whether that evidence is in or out. Even if a motion to suppress evidence is on the weak side, just filing it can result in negotiation of a better plea bargain.
To Plea or Not To Plea
The most important decision in any criminal case is whether to go to trial or do a plea bargain. As the name suggests, a plea bargain is a deal made between the prosecution and the defense in which the defendant agrees to change his or her plea, on one or more criminal charges, from not guilty to guilty, in exchange for an agreement by the prosecution to recommend to the judge a lesser punishment than would be asked for after a trial resulting in a conviction. The idea is for the defendant to get a “discount” on the punishment, or sentence, in exchange for not making the prosecution and the court do all the work that a full trial requires.
The reality of most criminal cases is that the police are not fools. Unless a police officer has an axe to grind or makes a serious mistake in an investigation, the police do not waste their time pursuing cases against innocent people. That is just a waste of time, effort and money. Consequently, most criminal cases end up being resolved by plea bargains. Getting a good plea bargain for a client is one the most important things a lawyer can do for a client.
The best plea bargains are obtained by lawyers who know the law, know the judges, have a good working relationship with the prosecution and have significant trial experience. Because a plea bargain is a negotiation without hard and fast rules, it is important that your lawyer know, and tell you about, just what is or is not possible. If the case against you is strong, you have a significant criminal record and the victim is out for blood, you are not going to get as good a deal on the same charges as someone where the prosecution’s case is full of holes, the defendant is a first offender and the victim is not pushing it. Asking for the impossible may force you to trial. If the judge perceives that you, and your lawyer, have wasted everyone’s time with a needless trial, it will be reflected in your sentence.
Trials are conducted in accordance with complex and detailed rules of procedure and evidence. Your lawyer’s primary function is to conduct your trial according to the rules in such a way as to maximize your chances for a not guilty verdict on all charges. If there is a conviction, your lawyer will make sure the judge hears everything about you and the situation that could possibly help in getting the judge to impose a lower sentence.
The Order of Battle
If you have decided to have a jury trial, the kind of trial where a jury of six or twelve people decide if you are guilty or not guilty, the first thing that happens is picking the people that will be on that jury. A larger group of people, called the jury pool, will be brought into the court room. You and everyone else involved in your case will be introduced to the jury pool, the names of all the possible witnesses will be stated aloud and the judge will as the jury pool some questions. If any of the people in the jury pool know, you, the lawyers, the witnesses or answer the judge’s questions in certain ways, each of those persons will be asked to speak to the judge and the lawyers, or you if you have no lawyer, at the side bar. The side bar is just one side or other of the judge’s bench (desk) where the judge and lawyers go to discuss legal issues out the hearing of the witnesses and jury pool members.
When a potential juror goes up to the side bar, the discussion is about whether that person can be an objective juror. If that potential juror knows any of the people or witnesses involved in the case, he or she will probably be excused and removed from the jury pool for your case.
Once the jury pool has been narrowed down by these side bar discussions, those people that are left will be randomly picked to be one the jury in your case. You and your lawyer can ask the judge to remove any juror that you think, based upon facts about that juror, cannot be objective. If the judge agrees, the judge will remove that person from the jury. You and your lawyer can also remove a certain number of jurors without giving any reason, so long as the reason is not racial or other discrimination.
Once the jury has been picked, the judge will usually tell the jury a little about the case, how the trial will be conducted and what they are expected to do. The prosecutor, usually and assistant district attorney, will give an opening statement. The defense lawyer, or you if you have not lawyer, then gives an opening statement. After that, the witnesses testify and evidence is introduced. The prosecution goes first.
After the evidence phase of the trial is done, the defense lawyer, or you if you have no lawyer, gives a closing argument. The prosecutor then gives a closing argument. The judge then instructs the jury on the law that applies to the case and sends the jury to the deliberation room to decide the case.
The Jury is Watching
How should you behave during the trial? Try to remain calm. You are going to be nervous. This is normal and everyone there, including the jurors, expects you to be nervous. The best basic rule is to simply listen to the witnesses and take notes. This focus of your attention will help you be less nervous. You should also write down any comments you want to make to or questions you want to ask your lawyer. If you are constantly leaning over to say things to your lawyer, he or she will have a hard time listening to the testimony. It is critical that your lawyer pay close attention to the testimony and other evidence presented during the trial. Now and then, slide your written questions and comments over to your lawyer. He or she will look at them and may act upon them at that time. If not, talk to your lawyer during a break in the action about your concerns. Remember, the rules governing the conduct of a trial are complex. That is why you have a lawyer. If the lawyer does not do what you think should be done, there is a good chance what you are asking is not allowed by the rules. Your lawyer will explain this to you during breaks or at the end of the trial.
People on the jury listen to the testimony, look at documents introduced into evidence and watch everybody in the court room. As for other court appearances, dress in clean, conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings. Bling sends the wrong message. Do not comment out loud on what is being said. Do not roll your eyes, sigh, laugh or do anything else that distracts the jury and everyone else from hearing the evidence. Such behavior is considered immature and will make a bad impression on the judge and the jury.
Put Brain in Gear Before Starting Mouth
If you are going to testify there are some basic rules to follow. Listen very carefully to each question. Think about the answer before you start talking. Give enough information to answer the question and stop. If the lawyer asking the questions wants more information about that topic, they will ask another question. If you hear the word objection, stop and wait for the judge to tell you that it is ok to answer the question or for the lawyer to ask you a different question.
Take your time. Lawyers will often try to hurry witnesses in hope of causing a mistake. Don’t get angry. Some lawyers will try to use sarcasm and other methods to get you angry. Don’t fall for it. It is just an act. Just continue to answer the questions as best you can.
I don’t know is a perfectly acceptable answer. No one has a perfect memory. Another lawyer tactic is to ask questions to which you probably do not know the answers. The purpose of this tactic is to get you nervous and get you guessing. Never guess. Estimates are ok so long as they are estimates, not guesses.
The Moment of Truth
When the jury has told the court officer that they have reached unanimous verdicts on each of the charges, everyone is brought back into the court room and the verdicts are announced. In
Based upon information about you and the case, your lawyer will try to convince the judge to impose the lightest sentence possible. Nowadays, many crimes have minimum sentences built into the law. The judge cannot go below those minimums. Also, if you have already gone to jail in the past, this new conviction is likely to send you back to jail.
The likelihood of jail or other punishments depends on many factors including the seriousness of the charges, the facts and circumstances of the crime that came to light at the trial and the criminal record, of lack of the same, of the defendant. One of a lawyer’s most important jobs is to gather the right information, present that information to the judge and argue for the lightest sentence available under the circumstances.
The information herein is a brief discussion in general terms of some of the more important concepts related to criminal defense. Outcomes in court in individual cases are dependent on the facts of each case, the strength of the evidence, the proper presentation of that evidence and the often changing state of the law. Those who use this information as a substitute for representation by an experienced attorney well versed in this area of law do so at their own risk.
Advertising. In accordance with rules established by the Supreme Judicial Court of Massachusetts. This web site must be labeled "advertising." It is designed to provide general information for clients and friends of the firm and should not be construed as legal advice, or legal opinion on any specific facts or circumstances. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.