I WAS ARRESTED. NOW WHAT HAPPENS?
Q: I KNOW THAT TELEVISION SHOWS ALWAYS TELL YOU NOT TO TALK TO POLICE, BUT IF I AM ARRESTED FOR A CRIME ISN'T IT BETTER TO TALK TO THE POLICE AND TELL THEM THAT I AM INNOCENT?
A. If you are ever arrested and the police officer wants you to give a statement, the very first thing you should do is ask to speak to a lawyer! Police often make promises that they have no intention of keeping. They will prey on your sympathies, appeal to your conscience, confront, and threaten you to get your statement. They may claim to have fingerprints and other evidence against you that they do not have. Remember, it is legal for cops to lie to you! Don't rely on promises of leniency or fall for the line that it is your "civic duty" to cooperate. It is not! If you are a suspect, the police are not your friends! If they are asking you questions, then you are a suspect. Tell them nothing! Ask for a lawyer and shut up!
Q. THE COPS SAY THAT I AM ACCUSED OF A SERIOUS CRIME. ISN'T IT BETTER TO CONFESS TO WHAT I REALLY DID? IT ISN'T AS BAD AS WHAT THEY ARE GOING TO CHARGE ME WITH.
A. Do not pay attention to cops' threats. It is likely just a ploy to get you to confess. If the police have the evidence to arrest you, they will arrest you, regardless of what you tell them. If they don't have the evidence to arrest you, they won't. It's that simple. Don't make their job easier by opening your mouth. "It" will not go better for you. It will only get worse. Remember, the police are not your friends! Believe them when they say that everything YOU say can and WILL BE USED AGAINST YOU!! They are not looking to find you innocent. They want you to be guilty! They want to close the case quickly and they want to close it with you. Evidence in your favor may be left out of the police report (and conveniently thereafter drift out of the cop's memory), while your other statements may be taken out of context, embellished, and packaged to prove that you committed the crime. Innocent or guilty, it makes no difference. Remember that sage and bitter advice, "It is better to remain silent and be thought a fool than to open your mouth and remove all doubt." Faced with questioning by police I would advise that, "It is better to remain silent and be thought the culprit than to speak and convict yourself!" As a former Deputy District Attorney, I saw as many as one case in ten that could not have been proven had the defendant not convicted himself out of his own mouth! Remember the magic words, "I want to speak to a lawyer." After that the cops cannot ask you any more questions.
Q: THE POLICE SAY THAT I AM BEING INVESTIGATED AND THEY WANT TO TALK WITH ME AT THE POLICE STATION SO THAT THEY CAN "ELIMINATE" ME AS A SUSPECT. IS IT OK TO GO?
A: Often the first notice that you are being investigated for a crime is a police detective's business card left casually in your front door asking you to "please call." Assume the worst. If the detective has focused on you enough to come to your home or business, the call is anything but casual. Call an attorney immediately! Never speak to the police without an attorney--not even over the telephone. Remember, if you are a suspect, you must treat police like vipers--it is not a question of if they will bite you, but when. It is common practice for the police to "invite" a suspect to speak with an investigator at the police station, pointedly tell him or her that they are not under arrest (so as to avoid the need for a Miranda advisement), and all the while intending to arrest the person. If the cops get a statement, so much the better. Let your attorney make inquiries and find out what the cop wants. He or she can speak to the police for you and then advise you what to do afterward to protect yourself. Do not assume that because you are innocent nothing will happen to you. Innocent people are convicted every day--largely due to unscrupulous police tactics. Don't let your sense of morality and justice overcome caution.
Q: I DIDN'T GET YOUR POINT THE FIRST THREE TIMES, AND SPOKE WITH THE POLICE. NOW I'M IN SERIOUS TROUBLE. WHAT DO I DO?
A: First of all, don't blame yourself. You acted no differently from the normally decent average person faced with this situation. If it surprises you that I term "decent" someone who has committed a crime, it shouldn't. We all sometimes act contrary to our moral nature--we all make mistakes. But that doesn't discount a normally moral character. The police know this and will use it against you. More than half of people guilty of a crime confess. Even some innocent people confess under the pressure and confusion of the moment. Many are driven to protest their innocence, sometimes because they actually are innocent, and sometimes because they think that it makes them look innocent. Some talk out of nervousness. Most people have difficulty with brief lapses of silence in a normal conversation. Faced with a critical police officer's open accusation, the need to talk, divert, or defend ourselves is a hundred times greater. Some people think that they are smarter than the police. Many decent people simply have the need to be absolved. (If so, see a priest--this is not the place for confession!) Whatever the reason, most people unfortunately do speak with the police. But do not give up hope. There are many defenses of which the average person is unaware. There are many legal challenges to using a person's confession and other evidence against him or her in court. A good attorney will not only know the law, but will make the effort on your behalf. It is a long way from the police station to the courtroom.
Q: I WAS ARRESTED BUT RELEASED ON A CITATION. WHEN I SHOWED UP FOR COURT THE JUDGE ORDERED ME TO GO TO THE POLICE STATION FOR "BOOKING." ARE THEY GOING TO PUT ME IN JAIL?
A: No. If the police or court intended to arrest you they would already have done so. Some police agencies regularly "cite out" persons arrested even for minor misdemeanors. Your signature at the bottom of a citation is only a promise to appear in court--not an admission to the crime. (If you refuse to sign the citation you will be taken to jail, even on a traffic infraction.) Normally after being arrested a person will be taken to the jail and "booked." That is, you will be fingerprinted, photographed, and otherwise processed into the local jail. Your identifying information and information of your arrest is then entered into the county and state criminal justice databases. Those who are cited out on a misdemeanor have not yet gone through a formal booking procedure and are asked to do so upon the first appearance in court.
Q: HOW DOES BAIL WORK?
A: After being arrested and booked a person is put in a "holding cell" until either released on his or her "own recognizance" pending trial or until the issue of bail is resolved. Bail is to assure a person's attendance in court and for trial. If the offense is relatively minor, you may be released on your own recognizance without bond. Although the police initially determine whether to release you "O.R." or set bail until you appear in front of a judge, you can request a magistrate to consider you early for release on your own recognizance. Although jailers seem to delight in keeping this information secret, the telephone number is often buried among the information that they give you at booking. If it isn't, ask for it. But most importantly, call an attorney. He can help you with bail and help arrange for your release.
Normally bail is set in an amount according to the seriousness and circumstances of the crime. Although a judge may completely deny bail for death penalty eligible crimes, bail is set for most crimes, even first degree murder, the bail for which is currently set at one million dollars. You may pay the entire amount of bail yourself, in which case the entire bond amount will be returned to you upon completion of your case.
However, most people pay a bail bondsman a fixed percentage of the amount of bail (usually 10%) as the bondsman's fee for posting the entire bond amount with the court. You will not get this money back. Upon completion of the case the bondsman gets his entire bond back. If you ever fail to appear in court the bondsman loses the entire bond. The court will issue a warrant for your arrest and the bondsman (as well as the police) will come looking for you.
But remember, bail is just a temporary release from jail. If you are convicted or enter a plea you might be back in jail again soon. Hiring a lawyer with the money, however, might result in a permanent release from jail or it might result in some jail alternative, such as probation or home detention.
Q: I BAILED OUT, NOW WHAT HAPPENS WHEN I GO TO COURT?
A: Whether or not you are released on bond, you must be brought before a magistrate or judge for “arraignment.” The judge will inform you of the charges against you and ask how you plead--guilty or not guilty? If you are in custody you must be arraigned within three (3) court days. If you are released "OR" or on bail it may be longer--even as long as a month or more. At your arraignment, you may be appointed a public defender if you are "indigent" (unemployed or very, very poor). Otherwise you must hire your own attorney to represent you, and may request more time to do so. If you plead guilty the case is over--the same as if a jury convicted you after trial. If you plead not guilty the matter will be set for a pretrial hearing, and if a misdemeanor, set for trial within thirty (30) days if you are in custody, or within forty-five (45) days if you are out on bail OR. However, normally cases are continued beyond these statutory periods, with the defendant's consent, in order to properly investigate the case, obtain full discovery of the evidence, and prepare the case for trial.
Q: WHY WAS MY CASE FOR SHOPLIFTING SET FOR A "PRELIMINARY HEARING?" THAT DIDN'T HAPPEN THE FIRST TIME.
A: Unfortunately, petty theft with a prior is what is called a "wobbler"--an offense that can be filed as a misdemeanor or as a felony at the discretion of the District Attorney. Since the advent of Three Strikes, prosecutors routinely file petty theft with a prior as a felony. If a felony, the case must be set for "preliminary hearing" within ten (10) court days of your arraignment. A preliminary hearing is like a "mini-trial" at which the detective will testify against you. Since, in California, the investigating police officer can testify at a preliminary to the "hearsay" statements of witnesses against you, it is not likely that you and your attorney will have opportunity to "confront and cross-examine" your actual accusers at the preliminary hearing. If the magistrate believes that there is "probable cause" (i.e., a "strong suspicion") that you committed the charged crimes he or she will "hold you to answer" for trial and set a date for your arraignment in superior court. Unless time is waived and for good cause, felony cases in California must be brought to trial within sixty (60) days.
Q: A FRIEND OF MINE IS CHARGED WITH A CRIME AND WAS OFFEREDA "PLEA BARGAIN" BY THE PROSECUTOR. I THOUGHT THAT PLEA BARGAINS WERE ILLEGAL.
A: Despite that the United States has among the largest portion of its citizens imprisoned of any "civilized" nation on earth, certain segments of society continually bemoan that criminals get of too light. Anti-plea bargain laws were passed to ensure that criminals got "everything coming to 'em." But the truth is that the criminal justice system could not function without plea agreements. The courts are already overburdened with only ten to fifteen percent of cases going to trial. A prosecutor may offer you a "plea bargain," in order to avoid a trial. However, you are not required to take it. In a criminal case you basically have two choices at any given time--your attorney can negotiate a plea bargain or you can set your case for trial and let a jury decide. No one can make the prosecutor offer you a better deal. Nor can anyone force you to accept the prosecutor's offer. However, they will frequently threaten to withdraw the offer if you refuse it. In that case trial is your only alternative. A good attorney will help you assess the value of any plea offer against the chances of obtaining a better or worse disposition at trial.
Q: SHOULD I TAKE A PLEA BARGAIN OR GO TO TRIAL? WHY IS COURT SO CONFUSING?
A: Prosecutors and some courts try to intimidate you into making a plea bargain. They try to move through their "calendar" of cases as quickly as possible. If you plead guilty, that is one more case that they do not have to take to trial. Everything happens very quickly and can be very confusing. All too often, defendants do not know what is going on. A good lawyer will discuss with you in advance what to expect before a hearing. During the hearing he will slow things down and explain the process so that you can make a rational decision. A good lawyer should not be afraid to go to trial when it is in your best interests, nor hold back from telling you the blunt truth when the odds are against you. A good lawyer will not only get you the best plea offer possible, but will give you the facts and help you to make the best decision on your case. Sometimes that means going to trial.
Q: WHAT HAPPENS IN A TRIAL? DO I HAVE TO TESTIFY?
A: In a criminal trial the prosecutor generally goes first in jury selection, opening statement, presenting witnesses, and closing argument. They also get rebuttal, which the defense does not. You do not have to testify at trial. You have a 5th Amendment right to not testify. Sometimes this is important. If you have prior convictions and testify, the prosecutor may get to tell the jury about your prior convictions. Many jurors believe that where there is smoke there is fire, and may be more likely to believe that if you committed a crime before you probably committed this crime too. If you do not testify, then the jury may never hear about those prior offenses. In many instances it may be better not to testify if you have a prior criminal record. Even without prior offenses it may be better not to testify and to put the prosecution to their task. Most of the time a defendant hurts his own case by testifying. But each case is unique. Your attorney can help you decide whether to testify or not.
Q: WHAT IF ALL TWELVE JURORS DON'T AGREE AFTER TRIAL?
A: If all twelve (12) members of the jury find you not guilty then you go home a free person right then and there. If all twelve find you guilty then you will be sentenced. If you are convicted, the judge who listened to your trial will decide punishment. Misdemeanors are punishable by a fine (usually up to $1,000 plus penalties and assessments--for a total almost three times the amount of the fine) and up to 6 months or a year in county jail. Felonies are punishable by 16 months or more in state prison, unless probation is granted with up to a year in jail. It all depends on the crime, on the plea agreement worked out by your attorney, and on the court.
Anything short of a unanimous verdict of all twelve jurors is a mistrial and the case must be tried again. However, realistically, if the numbers are substantially in favor of not guilty, say 10 for not guilty and 2 for guilty, the judge may believe that it is unlikely that you will be convicted and dismiss your case in the interests of justice.