Q. Why do I need a criminal defense attorney?
A. Representing yourself without an attorney is called “pro se.” While you have the right to represent yourself in court, it’s highly advisable to seek an attorney’s services instead. Attorneys are trained in the rules of criminal law, criminal procedure, and evidence. Attorneys also know how to research the cases and statutes that impact your case and incorporate that law into the arguments they make before the court. An attorney will also have the oral advocacy skills to speak to a judge and jury on your behalf. It’s also a good idea to have someone advocate for you instead of making your case on your own, as your own emotions can interfere with your ability to adequately defend yourself.
Q. My family member was just arrested, what happens next?
A. If your family member was arrested, he or she will probably be taken to a police station, county jail or other holding facility. Depending on the severity of the crime, there may be an opportunity to “bond out” soon after processing. Some jurisdictions use set amounts for each type of offense while others rely on a complicated algorithm to determine the suspect’s risk of not appearing in court.
If your family member remains in jail, he will be taken to court usually on the next weekday session before a judge. For misdemeanor offenses, this first appearance is called an “arraignment”. If the case is a felony, the first time in court is called an “initial appearance” and bond is usually the only issue.
At misdemeanor arraignment, the defendant will be informed of the charges against him, read the criminal complaint (the paper which charges him with a crime), informed of his Constitutional rights, and asked to enter a plea. Your family member may plead “guilty,” “not guilty,” “no contest” (see below FAQ on pleas). A guilty or no contest plea might proceed directly to sentencing. If he pleads “not guilty,” the case will be set for another hearing (called a pre-trial) or a trial date may be set. The judge will also set a bond amount as well, of which 10% typically must be paid to the court. If your family member is unable to post bond, he or she may remain in jail throughout trial or until the case resolves.
Q. What’s the difference between a hired lawyer and a public defender?
A. The Supreme Court held in Gideon v. Wainwright, 372 U.S. 335 (1963), that the right to counsel for indigent criminal defendants is a fundamental right and counsel must be provided if the accused cannot afford to hire their own. A later Supreme Court case, Argersinger v. Hamlin, 407 U.S. 25 (1972), expanded on this right and required counsel be appointed for any accused defendant facing imprisonment. In response to these decisions, many states and counties established their own public defender offices.
Public defenders hold the same credentials as hired attorneys – they both went to law school, passed the bar exam, and hold law licenses. The work done by public defenders serves a vital purpose in society and is highly commendable. Public defenders often handle many cases at a time, though, and might have limited contact available. Even if you qualify for a public defender, you might want to look into hiring a private attorney if you have the resources. A private attorney can give your matter the personal attention it deserves.
Q. What are my rights when I’m accused of a crime?
A. The Fifth and Sixth Amendments to the Constitution set forth your rights when you’re accused of a crime.
The Fifth Amendment typically applies during the investigatory stage of the criminal process. When you’re accused of a crime you have the right to avoid incriminating yourself. You’re probably familiar with the Miranda warning from watching police procedural shows. The name of this warning comes from the famous Supreme Court case, Miranda v. Arizona, 384 US 436 (1966). Before a law enforcement officer asks you a question that’s designed to get you to answer with an incriminating response, he or she must inform you of your right to stay quiet (or stop talking if you have started), have an attorney present during questioning, and that an attorney will be provided if you cannot afford one. The Miranda rights are required to ensure your Fifth Amendment rights are protected. The Fifth Amendment prohibits compelled self-incrimination.
The Sixth Amendment applies to the trial stage and guarantees a speedy trial, the right to compel witnesses to appear in court (by subpoena), confront witnesses, and have legal counsel.
Q. What is a plea bargain?
A. A plea bargain is a negotiated agreement between the defendant (through his or her attorney) and the prosecutor for a recommended sentence. This is typically much less than the possible maximum time. A plea bargain requires the defendant to enter a guilty plea, although sometimes a no contest plea is allowed.
Beware that this is a “recommendation” to the judge who must ultimately accept it.
Q. Should I take a plea bargain or go to trial?
A. This is never a simple question to answer as it depends on a multitude of factors unique to each client. I strongly believe an attorney should never pressure a client to take a plea bargain. This type of practice reflects badly on lawyers and puts the lawyers interest before the client. An attorney should always be prepared to try every case.
When I counsel a client, I like to go over every piece of evidence and develop a list of favorable and less favorable facts that would come out if the case proceeds to trial. This includes credibility of witnesses, any defenses or alibis, and evidentiary material. From there, we can make an educated decision on whether trying the case is our best course of action.
I always ask my clients what issues are important to them in the resolution of their case. Maybe the problem is a worry over getting sentenced to jail and an offer for time already served will work out. Maybe the client is concerned about losing driving privileges or having a non-expungeable charge. Sometimes these concerns can be worked out with the prosecution and lead to an offer the client wants to accept.
Q. What are the different types of pleas?
A. In court, you may enter a variety of different pleas. These include:
- Guilty: A guilty plea is a complete admission of the truth of the facts in the criminal complaint or indictment and an admission of guilt. When you plead guilty, the court may sentence you immediately or might schedule sentencing for another date.
- Not Guilty: A not guilty plea is a denial that the crime occurred or a denial that you were responsible.
- No Contest: A no contest plea is an admission of the truth of the facts in the criminal complaint, but not an admission of guilt. However, the court will find you guilty and you will still be sentenced. The benefit of pleading no contest might be to prevent civil liability because your plea of guilty could otherwise be used as evidence against you in a lawsuit. I usually advise clients accused of causing an injury or property damage to plead no contest for this reason. Pleading no contest will also preserve a right to appeal.
- Not Guilty by Reason of Insanity (NGRI): An NGRI plea means the facts making up for the crime did occur, but you are not guilty because you could not form the required intent due to a mental disease or defect that prevented you from knowing the different between right or wrong or the consequences of your actions. Pleading NGRI is not a free ticket to an acquittal, however. You may be committed to a mental health facility for up to the maximum sentence for the alleged crime, or even longer.
- Alford Plea: In North Carolina v. Alford, 400 U.S. 25 (1970), the defendant was confronted with immense evidence against him but claimed innocence. If he was convicted, he would face the death penalty. The case went before the Supreme Court where it was decided the defendant could essentially plead guilty to avoid the certain death penalty if he went to trial, and still plead his innocence. An Alford plea is rare and many courts may not accept one.
Q. How much time am I facing on a misdemeanor charge?
A. In Ohio there are five degrees of misdemeanors. They are listed below in order of seriousness along with the maximum sentences:
- First Degree Misdemeanor (M1): 180 days jail, $1000 fine
- Second Degree Misdemeanor (M2): 90 days jail, $750 fine
- Third Degree Misdemeanor (M3): 60 days jail, $500 fine
- Fourth Degree Misdemeanor (M1): 30 days jail, $250 fine
- Minor Misdemeanor (MM): $150 fine
Q. How much time am I facing on a felony charge?
A. Ohio recognizes six degrees of felony offenses.
- Unclassified Felony (UF): For serious crimes, such as aggravated murder – 20 years prison to life or death.
- First Degree Felony (F1): 3 to 11 years prison, $20,000 fine
- Second Degree Felony (F2): 2 to 8 years prison, $15,000 fine
- Third Degree Felony (F3): 9 to 36 months prison or 12 to 60 months prison, $10,000 fine
- Fourth Degree Felony (F4): 6 to 18 months prison, $5,000 fine
- Fifth Degree Felony (F5): 6 to 12 months prison, $2,500 fine
Q. Will I get probation?
A. Each case is entirely dependent on the facts alleged and circumstances of the offense. Your criminal record, if any, will be taken into account when the prosecutor makes an initial plea offer. I present every plea offer to my client and discuss the pros and cons of accepting the offer versus our risks if the case proceeds to trial.
You might be offered probation if the court believes you would benefit from such supervision instead of jail time. Be forewarned that probation can be intensive and by entering into probation, you agree to abide by the terms. Terms of probation can include not testing positive for drugs or alcohol, attending anger management classes, avoiding certain persons or places, or obeying all laws. Breaking the terms of probation can result in a new charge called a probation violation. It is important to discuss the terms of probation with your attorney before agreeing in order to make the best decision.