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Criminal Defense FAQs

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What are Miranda rights?

Miranda rights are a set of rights that must be given to individuals who are in custody and being interrogating by police or other law enforcement agents. These rights arise under the privilege against self-incrimination that is contained in the Fifth Amendment of the United States Constitution. They are named after the case in which the United States Supreme Court first held that such rights must be given, Miranda v. Arizona, decided in 1966.

Although the rights do not need to be given in any particular order, they are usually given as:

  1. You have the right to remain silent.
  2. Anything you say or do may be used against you in a court of law.
  3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  4. If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  5. If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  6. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

Once these rights are given, the suspect can invoke his or her right to remain silent and does not have to answer any questions. If statements, admissions or confessions are given by a suspect who is in custody and being interrogated without Miranda rights being read to the suspect, any statements, admissions or confessions are inadmissible against the defendant in court.

When do I need to be given my Miranda rights?

Contrary to popular belief, Miranda rights are not required just because a police officer questions an individual.  Three things are required before you are entitled to have Miranda rights given:

  1. The person must be in “custody” as that term has been defined by the courts.
  2. The person must be subjected to “interrogation” as that term has been defined by the courts.
  3. The questioning must be by a police officer or law enforcement officer employed by a governmental agency.

The courts have struggled to define when an individual is in custody and being interrogated for purposes of determining when Miranda rights must be given, and each case is fact-specific.  But generally, a person is considered to be in custody if the person reasonably believes he or she is no longer free to leave the scene or is otherwise restricted from leaving.  Interrogation has been broadly defined as questioning or other conduct (for example, statements that are made to provoke the person to provide a response) that is designed to get an incriminating response.  Finally, Miranda rights are only required if you are being questioned by a police officer, detective or law enforcement agent.  Actions by private citizens (for example, a private security guard working in a store) do not require the reading of Miranda rights.

If all three elements are met, Miranda rights must be given.  If those rights are not given, any statements that the individual makes may not be used against him or her.

When is a search warrant required before a police officer can conduct a search?

The Fourth Amendment of the United States Constitution provides that people are entitled to protection from “unreasonable” searches and seizures, and that no search warrant can be issued unless it is signed under oath, supported by probable cause and specifically describes the place to be searched or the persons and things to be seized.

However, to reflect the realities of how police officers must do their job and to deal with situations that are encountered in the field, where it may not be practical or necessary to obtain a warrant, the courts have created several exceptions to the requirement that a warrant must be obtained before a search and/or seizure can take place. A large body of case law has developed on the issue of what is—and what is not—an “unreasonable” search and seizure under the Fourth Amendment. These exceptions include:

  1. A search done after a lawful arrest—if an individual is lawfully arrested, that person is subject to a full custodial search of their person and the immediate area around him or her.
  2. Plain view—if evidence of a crime or contraband is plainly visible to a police officer from an area that he or she has a right to be, it is subject to seizure without a warrant. A simple example would be drugs or a weapon lying in the front seat of a car if the officer had a valid reason to stop the car, or drug paraphernalia lying on a table in a room in which the officer has a right to be.
  3. Protective pat down—if an officer has reasonable grounds to believe that an individual might be armed, he or she can conduct a limited pat down of the individual’s outer clothing to ensure that the individual is not armed. If the officer feels an object that he or she believes may be a weapon or poses a threat to the officer’s safety, the officer can remove the object.
  4. Search of the interior of an automobile–the automobile exception to the Fourth Amendment warrant requirement provides that an officer with probable cause to believe the evidence of a crime will be found in a vehicle may stop the car and conduct a warrantless search of the entire vehicle and all containers located within the vehicle that may hold the item sought. To fit within the automobile exception, there must be independent probable cause to believe that evidence will be found in the vehicle.
  5. Consent—if the individual gives consent to the officers to search their person or a particular area, a warrant is not required. However, the scope of the search is limited to the scope of consent given. For example, if the individual allows the officers to search one room, but not another, the consent only applies to the room for which permission was given.
  6. There are several other exceptions to the warrant requirement that may apply to other situations, such as searches of individuals who are on probation or parole, administrative searches conducted by government authorities such as the fire or health department and searches conduced in airport for security purposes.

If the court finds that no valid exception to the warrant requirement applies and/or that the police officer did not have the right to conduct the search or seizure, the evidence that is obtained may not be admissible in court. A motion to suppress the evidence must be filed in order to protect the defendant’s rights.

If the alleged victim does not want to prosecute, will my case be dismissed?

The decision whether to prosecute a criminal case, and the decision to continue prosecuting a criminal case, rest solely with the prosecutorial agency (normally the District Attorney or City Attorney, or in a federal case, the U.S. Attorney’s Office). Although the prosecution may take into account the victim’s unwillingness to testify or cooperate, there is no guarantee that your case will be dismissed simply because the victim does not want to press charges.

How does bail work?

When a person is arrested, he or she might be released on his or her  “own recognizance.”  This generally only happens for minor offenses, and means that the individual is released as soon as the booking process and paperwork are completed.

However, in most instances, a bail amount is set based on the seriousness of the offense for which the person has been arrested.  The more serious the offense, the higher the bail amount will be.  Each county follows a bail “schedule” that sets the bail amounts for various crimes.  For the most serious crimes, such as certain types of homicide, there is no bail and the person will remain in custody throughout the case.  Unless and until the set bail amount is posted, the person will remain in custody.  If a decision is made by the prosecutor to pursue a criminal complaint, and you have not yet posted bail, you can ask the judge to reduce your bail at your first court appearance.  However, the judge does not have to grant your request.

Chambers Law Firm works with two bail bond companies, both of which have been in business for more than 40 years.  These companies can be contacted 24 hours a day and can efficiently and quickly handle bail applications.  The bail companies generally require a 10% non-refundable fee before they will post the bond.  If you work through your attorney, the premium can be reduced to 8%, but again, the money is non-refundable.  In some instances, the bond company might also require a cash deposit or collateral (like a temporary lien on your home or other property) from you or someone who is willing to sign the bail bond agreement before the company will agree to post a bond on you behalf.

Essentially, the purpose of bail is to guarantee your appearance at all proceedings in your case.  If you fail to appear and bail is revoked, the bail bond company must pay the amount of the bail.  You and any others who have signed the bail bond agreement will be liable to the bail bond company to pay back the amount of the forfeited bail.  If you make all of your court appearances, the bail bond is exonerated (i.e., released) and the money is returned to the person or entity who posted the bail.

Dan's Den

Just one Man's Opinion

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