Criminal Law In A Nutshell

Criminal law is that realm of law where the government seeks to punish an individual for an act violating public law. To constitute a crime, the act in question must be specifically prohibited in writing and accompanied by a specific punishment. You have the right to live your life free from the interference of the government unless you violate a public law.

Law enforcement officers have the right to investigate a possible crime. Thus law enforcement officers may temporarily stop an individual for the purpose of requiring the person to justify their presence and activity in the location and to identify themselves. The stop may be accompanied by a "pat down" search for weapons. Anything more is an intrusion into your personal rights established by the constitution.

If the police stop you, for whatever reason, you only have to answer preliminary questions concerning your identification, such as name, address and present activity (taking a walk). You do not have to answer any questions about “whether you are aware of any crimes?” or “where you are going?” etc…. If the police ask such questions then you are the “subject of a criminal investigation” and you should refuse to answer any further questions until you talk with your legal counsel. In over 70% (percent) of the cases, a Defendant regrets their comments to law enforcement personal. Learn to politely exercise your right to remain silent when questioned by police.

Historically, the general public is naive regarding communications with the police. There are only two reasons for the police to ask you questions, one is to get your statement as a witness, another is to elicit comments from you because you are the “subject of a criminal investigation.” Our forefathers knew how over-reaching the police could react and gave Americans a constitutional right to remain silent when confronted by authority. The right to remain silent until you have talked with your attorney is a time honored right defended by many Americans over the centuries. The rule was made for one specific situation — when the police confront a citizen. Why people don’t exercise their right to remain silent may be due to a lack of education.

It is important to understand that the police cannot arrest without “probable cause” a crime was committed. If the police have “probable cause” they will arrest you whether you answer questions or not. The police will always ask questions in the hope you will provide the “probable cause” for arrest.

Think of your “right to remain silent”, until you have talked with your attorney, as a monopoly get out-of-jail-free card. You would not think twice about using your get out-of-jail-free card when appropriate, why hesitate exercising your constitutional right when appropriate. You do not need to be rude when exercising your rights; you can politely say “you prefer to talk with your attorney before answering additional questions.” Do not be surprised if the law enforcement officer becomes rude. He/she may take your refusal to answer questions as a challenge to their authority and may still arrest you, but the case will be dismissed if there is no “probable cause”, so don’t provide “probable cause” by opening your mouth. Silence is not “probable cause” for arrest. Silence cannot be used against you in court, so learn to practice your constitutional right to remain silent.

Often times, the police will lie or use a ruse explaining that your help is needed to prove your innocence or get to the truth of the matter. Do not fall for such comments and politely continue your refusal to talk if you feel it is in your best interest. Refusing to assist the police is like using your get out-of-jail-free card; do not hesitate to use it. The police do not have to read anybody his/her "rights" unless that officer wants to get a statement or confession from a suspect. If the officer is collecting information he/she does not have to read you your rights. However, if the officer wants to ask you some questions other than your name and address, he must advise you that you don’t have to answer his questions and anything you say can be used against you in a court of law. It is amazing how many people will answer a police officer’s questions in an attempt to cooperate, only to later realize their own words became the “probable cause” used by the police to arrest.

All arrests start with a confrontation with the police. The confrontation may be verbal or physical. Whatever type of confrontation, don’t react with anger. If confronted verbally be polite and answer only preliminary identification questions. If they threaten arrest for not answering all their questions, let them arrest you. Cops better have evidence of your crime before arrest or the charge will be dismissed and you may seek civil damages from the arresting officer and his employer. Do not be afraid to exercise your rights or sue City Hall when appropriate, the ultimate result is a more professional police department.

When you are arrested you will be handcuffed, placed in a police vehicle and transported to booking. Many police hide recorders in their vehicles; so remember to remain silent while in the vehicle. If you are arrested, the general recommendation is too politely, but firmly, say, "I want to speak to an attorney. I do not want to answer any questions until I speak to an attorney." Repeat this to everyone who asks you any questions. Remember, the police will always try to persuade you to talk; a common ruse used is simply to engage you in conversation. So be prepared to repeat your request to talk with an attorney.

You will be taken to jail and processed into the system. This procedure is called “booking” and records the defendant's name, address, telephone number, crime charged, fingerprints and other relevant information. The booking procedure may take several hours. After the “booking” procedure you are placed in a cell until you meet the conditions of bail/bond. Most crimes have an established bail amount. Example – for the crime of simple battery bail will be between $500 and $2,500. If you post a cash bond it will be returned to you at the conclusion of your case. If you are unable to post bail, a bondsman will guarantee the bond for a charge of 10% of the bail amount. Additionally, someone may have to post collateral for the remaining 90% of the bail amount.

Generally, crimes are classified as a felony or a misdemeanor. A felony is any offense punishable in the state penitentiary for a period of more than one (1) year. A misdemeanor is any offense below the grade of felony and is not punishable in the state penitentiary system, but may be punishable by county jail time of less than a year. It is important to remember that many charges are later reduced from their original arrest classification.

Your first opportunity to see a Judge will be the initial appearance within 24 hours to determine if bail is appropriate. Your first opportunity to see the Judge who may eventually sentence you, is at “Arraignment”. The defendant must appear at the arraignment hearing. If you fail to appear at arraignment a capias (warrant) will be issued for your arrest. If the defendant has an attorney he/she need not attend the arraignment hearing for the attorney will answer the charges on your behalf. At the arraignment hearing the defendant is given a written accusation of the charges, outlining the facts and his/her involvement in the crime. The defendant enters a plea of guilty or not guilty to the charges. Under no circumstances should you plead guilty to the charges at the arraignment hearing unless advised by an attorney. By pleading not guilty to the charges at the arraignment hearing you give yourself time to discover all of the evidence against you and prepare a defense. If all else fails you can always plead guilty later, so avoid pleading guilty at the arraignment hearing.

The period of time between the arraignment hearing and the trial is called the discovery period. The length of time varies depending on the number of continuances granted by the court. As a matter of common courtesy your attorney will generally be given one continuance of the trial period. There is a time limit on how long the government has to conclude your case; therefore, the court is reluctant to numerous continuances. Additional continuances will only be granted for good cause. The discovery period is used to acquire all the evidence the government is going to use against you at trial or before the court. Once the evidence is analyzed you will be in a better position to prepare your defense and answer questions intelligently instead of responding emotionally to questions during arrest.

Because of the number of cases going through the judicial system, the prosecutors are generally amiable enough to work out a “plea”. A plea is analogous to a mediated agreement between the government and the defendant. Each party gives up something to reach a compromise and dispose of the case. Example – the defendant agrees to the reduced charge of assault in return for the government dismissing the charge of battery. As a general rule, more than 80% of all criminal cases are resolved by plea negotiations. Plea negotiations are carried on through the discovery period and continue up through the trial period. As a practical matter, the majority of pleas are concluded shortly before trial. If a plea is not negotiated then the defendant will stand trial before a jury.

A jury trial is intense and the results are subject to many factors including the charges, the attorneys’ experience, the judge, the evidence and the jury makeup. Many of the factors are randomly chosen, which increases the unpredictability of results. However, in all the uncertainty there are certain guiding principles to be followed in all trials, which can greatly increase your odds of success. Example – you, your attorney and witnesses should constantly practice being nice in court. If you are nice the jury will like you. If the jury likes you they will look for a way not to hurt you. In close cases, nice people seem to get the benefit of the doubt. You would be surprised how many people forget this basic observation.

You should immediately write a detailed chronological statement of facts to be reviewed by your attorney so he can coordinate supporting witnesses. You must have all your witnesses working from the same page. Knowing the correct set of facts helps prevent witnesses being confused in their answers, thereby, increasing their credibility. On any given day, hundreds of witnesses are confused in trial by attorneys who know the witness is unsure of his answers. It is not in your best interest for your witnesses to be confused.

After you enter a plea or found guilty at trial you will be sentenced by the judge. For you this is the moment of truth – and you better be prepared. At the sentence hearing, the court will listen to any mitigating or compounding facts to reduce or enhance the sentence. A mitigating factor can be your prior payment of restitution. A compounding factor can be your prior criminal record. Inevitably, the court is going to ask if you have anything to say on your behalf. I would suggest you be prepared or defer to your attorney.

After you have been sentenced, you have the right to appeal the trial court’s decision to a higher court, the appellate court. The appellate court is a different court with different judges who hold the responsibility of review over the trial court’s decision. It is important to remember you have only 30 days to appeal a trial court’s decision or sentence. After 30 days you forever loose your right to appeal. The cases you read in law books are all appellate cases. If you really want a good understanding of your case, how it will be viewed by the court and what to expect for the final result review the case law. The case law is where your attorney looks for answers. From any library or on the Internet, you can access thousands of cases similar in charges to your case. After reviewing a hundred cases you will observe that the judge’s sentence to a substantial portion of the cases are similar. It is this sentence received by the majority of cases you can expect in your case unless your criminal history is bad or you classify as a career criminal.

This outline gives a summary of criminal law in Florida. There are many factors that would affect the timing and approach to criminal law proceedings. There are alternative ways to resolve your defense. It is recommended you immediately consult with an attorney if arrested. For specific information directed to your situation please contact this office at your convenience.