Friday, April 20, 2012

Answers to the 10 Most Common Questions in Criminal Cases

1. Who can I talk to about my case?
You should only talk to your lawyer about the charges against you. Almost anyone else that you talk to could be subpoenaed to testify against you and tell what you told them. Your lawyer cannot tell anyone what you tell him.

One of the biggest mistakes you can make is talking to people at the jail about your case. The other inmates might decide to see if they can make a deal to be in jail for less time in exchange for testifying against you.

The telephone calls at the jail are all recorded, so you can't even speak to your family about your case over the phone because those conversations could be used against you.

It is hard to do, but don't talk to anyone but your lawyer about the charges against you. Blame your lawyer. If someone asks you about your case, just say, "My lawyer doesn't want me to talk to anyone about the case until it is all over. I wish I could."

2. What should I tell my lawyer?
Your lawyer is on your side and can't tell anyone what you tell him. Your lawyer needs all the information he can get to defend you. Some people think that a lawyer won't fight as hard for his clients if he knows they are guilty. That is not true. Your lawyer's job is to make sure that you don't get convicted unless the prosecutor can prove the case. To defend you, your lawyer needs all the information.

3. How do I get my bail reduced?
When you get charged with a crime, you can be (1) released on you own recognizance, (2) allowed to pay bail, or (3) held in jail until trial. The judge considers the severity of the crime you are accused of, the likelihood that you will come back to court if released, and the danger you present to the community if you are allowed to be released.

In Salt Lake County, there is a program called Pretrial Services that monitors people while waiting for trial. Usually, if you are approved to be supervised by Pretrial Services, you won't have to pay bail.

If the judge allows bail, it will be either cash only, or bondable. If your bail is bondable, you can use a bail bondsman. They usually charge 10% of the amount the court requires. So if your bond were set at $10,000 bondable, you could pay a bail bondsman $1,000 and they would be responsible for the rest.

Your lawyer can argue to the judge that bail should not be required or that it should be reduced by presenting evidence that you are not a flight risk and not a danger to the community.

4. Do I want a preliminary hearing?
In Utah, criminal defendants have the right to a preliminary hearing in all felony cases and in all cases where they are charged with a Class A Misdemeanor. At the preliminary hearing, the judge has to find probable cause that a crime was committed and that you committed it. Probable cause is a very low standard, so if the prosecutor has any evidence, the judge will probably find that there is probable cause.

If the judge finds probable cause, the judge binds the case over for trial.

However, even if the case gets bound over for trial, preliminary hearing is very helpful because it gives you and your lawyer a preview of the prosecution's case. Your lawyer usually gets to cross-examine some of the key prosecution witnesses. So, if a case is going to trial, preliminary hearing can be a valuable tool in learning more about the weaknesses and strengths of the case against you.

5. Should I testify at my preliminary hearing?
At preliminary hearing, the judge is only interested in whether there is any evidence to support the charges against you. The judge is not deciding if you are innocent or guilty or even if you are likely to be convicted. Because of that, the judge has to view all of the evidence from the prosecution's perspective.

There is usually no point to testifying at your preliminary hearing and it can be very dangerous. If you agree to testify, you can be cross-examined by the prosecutor and you might say something that will hurt you at trial. Even the best evidence on the defense's side probably won't help you at preliminary hearing, so it is probably better to wait until trial to testify or present much evidence.

6. Can the victim drop the charges against me?
No. The victim can ask the prosecutor to drop the charges, but the prosecutor can go forward with the case even if the victim does not want to.

The prosecutor can also force people to testify by subpoenaing them. That includes the victim. In some cases, the victim or witness can refuse to testify by claiming a privilege like spousal privilege, but in most cases, the prosecutor can ask the judge to jail a witness who refuses to testify or who gives false testimony.

7. Should I go to trial?
You always have the right to go to trial. If you are innocent and the prosecutor cannot prove the case against you, you should definitely go to trial. Some people think that the prosecutor must have a great case if he filed the case against you. That is not always true. When I was a prosecutor, I was forced to prosecute cases with very thin evidence. So your lawyer needs to do a thorough investigation and decide whether there is enough evidence to convict you.

In cases where there is strong evidence against you, you might need to decide between taking a plea bargain or going to trial. Our firm's philosophy is that if the prosecution isn't offering a good deal, we should go to trial even if our chances are small. You don't have any chance of winning if you plead guilty.

However, in many cases, the prosecution has good evidence and offers a fair deal to resolve the case without trial. In the end, your lawyer can't decide whether to take a deal or go to trial, but he can give you advice. Every case is different. If the deal is good enough and the evidence against you is strong, you might want to consider taking a plea bargain.

8. How do I get the best deal?
I frequently get asked by my clients, "Are you a bulldog? Do you fight for your clients?" My answer is, "Yes, I fight. But I fight smart."

Your lawyer has to be able to negotiate with prosecutors or you are going to get a bad deal. Your lawyer needs to be able to understand the prosecutor's concerns about the case and have the creativity to address those concerns while protecting your interests. Otherwise, you might end up going to trial with a bulldog lawyer and a mountain of evidence against you. If that happens, you might not be happy with the result.

Throughout the State, different offices have different policies on making offers and different schedules for when they make the best offer. You need a lawyer who knows the local procedure and can use it to help you.

You also need to provide your lawyer with a detailed picture of your health, employment, family, and school history so that your lawyer can present you to the prosecutor as a person and not as a faceless police report.

9. How long will I be in jail or prison if I lose?
If you get sentenced to a jail term, you will be given a specific sentence. The maximum jail term for a Class A Misdemeanor is 365 days, a Class B Misdemeanor has a maximum of 180 days, and the maximum for a Class C Misdemeanor is 90 days. You can't go to jail on an infraction-level offense.

For prison terms, Utah uses an indeterminate sentencing system. That means that you will be given a range of years you could serve. For Third Degree Felonies, the range is 0-5 years. For Second Degree Felonies, it is 1-15 years. And for First Degree Felonies, the range is usually 5 years to life in prison.

If you get sentenced to prison on a felony, the judge will tell you the range of years you could serve. Then, after you have been at the prison for at least the minimum time required, you will have a review hearing with the Parole Board. They will decide when you are released from the prison.

10. What should I do if my lawyer isn’t doing a good job?
You should not settle for low-quality legal representation. At this time in your life, you need the best. If you don't believe that your lawyer is doing a good job, you should schedule a time to speak to him or her and see if you can resolve the problem. If that doesn't work, you should get a new lawyer.

2 comments:

Scott Griffin said...

I learned the hard way with talking to people other than my lawyer about my case. I was working with a lawyer from http://axiomattorney.com/ and he advised me not to talk to anyone about my case until after the court date was over. I didn't listen and paid a price for it. But I highly suggest to just keep things to yourself and talk to your lawyer but nobody else.

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