By: PETER D. AIKEN
My name is me . I am an attorney with the criminal defense firm Aiken, O'Halloran & Associates in Fort Myers, Florida. Welcome to "Your Rights and the Criminal Justice System." In this Article, I will give you an overview of the criminal justice system and some of your basic rights in the state courts in Lee, Charlotte, and Sarasota Counties. The laws in other states are different, and there are also substantial differences between state and federal prosecutions. Since most prosecutions occur in the state court system, in this article I will address your constitutional protections and your procedural rights in the circuit and county courts of Florida. If your prosecution is either presently in federal court, or likely to be filed there, call us for a more detailed explanation.
YOU DO HAVE RIGHTS
If you have been arrested or are likely to be arrested in the future, there are important facts you need to know about the criminal justice system and your rights. Many people, primarily as a result of watching television programs, have a misconception of the law and function of the criminal justice system. What you see on TV is not reality.
First and most importantly, each criminal case is different. Just like people, each person's background is different, and the individual facts and circumstances of a particular arrest may give rise to unique legal defense. If you have already retained a lawyer, always listen to and follow the advice of that attorney. Also, keep in mind that since everyone's situation is different, actual legal advice can never be given until the facts are fully discussed in confidence.
It has been my observation that the average person really doesn't know his or her legal rights. Television shows often grossly distort and exaggerate reality. Although at the time of an arrest an officer may sometimes read you "rights" from a Miranda card, or a judge or public defender over a video screen may advise a person of some of their rights, it is important to understand that these "rights" usually include only a minimal portion of one's actual rights. It is possible to waive or give up valuable, important legal rights and defenses before, during, and after an arrest. Since most people don't know their legal rights, the sooner representation by competent counsel is obtained, the lesser the likelihood of waiving or giving up valuable legal protections.
In most criminal cases, time really is of the essence. There are many important decisions to make. Since these decisions may change the course of not only the case, but also a person's life, the more information you have, the better advised and the more informed your decision will be.
THE ARREST
Most, but not all, criminal prosecutions begin with an arrest by a law enforcement officer. This can be a county deputy, a city police officer, the highway patrol, or other state, local or federal law enforcement officials. An arrest can be the result of the officer's personal observations, such as in a DUI case, or as a result of a police follow-up to a 911 call. Sometimes, an arrest is the result of an ongoing investigation (for example, a situation involving a bad check or fraudulent use of a credit card). Most of the time, however, the issue of whether or not to make an arrest is an officer's personal decision.
In order to make a lawful arrest, a police officer is supposed to have "probable cause" to believe that the person arrested has committed a crime. This does not mean that the person arrested is guilty, but merely that the officer, at that moment in time, has made a decision that he or she believes an offense has been committed, and that the person being arrested is the person who committed it. There may be other instances when the state attorney's office directly files a charge and causes an arrest warrant to be issued. Once again, this does not mean that the accused person is guilty; it simply means a prosecutor has made a decision to go forward with the prosecution.
The formal charge filed by the prosecutor is called an "Information." The "Information" is the formal charging document signed by the prosecutor. It is on this formal charge that your prosecution goes forward. There are some rare instances, such as in a first-degree murder case, where the formal accusation takes the form of what is known as a grand jury indictment.
When a person is arrested, and prior to being transported to jail, he or she in most instances is searched. Sometimes this search can lead to the discovery of additional evidence and additional charges. For example, if drugs are found in a person's pocket when they are arrested, or if a person is arrested in a vehicle or car and the search of the vehicle discloses additional evidence, it may give rise to additional charges. Often there are valid legal defenses arising from the circumstances surrounding the arrest or the search and seizure of your person or vehicle.
Most people are unaware of the law with respect to search and seizure. A competent attorney, after investigating the facts, may be able to challenge the evidence seized at the time of the arrest. Just because evidence is discovered, or an incriminating statement is made, it does not automatically mean that this evidence is admissible in a court of law. The law of search and seizure is complex. Experienced, competent counsel may find technical flaws or legal technicalities in the state's case that can in some instances result in the evidence being suppressed and excluded from use in court. Before making any decision to plead guilty, a person should thoroughly and privately discuss the unique, factual circumstances of his or her case with competent defense counsel. Never plead guilty without a face to face meeting with an attorney.
THE RIGHT TO AN ATTORNEY
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, an accused person is guaranteed the right to "assistance of counsel." Over the years, the courts have interpreted this Amendment to require the police to specifically advise defendants of this important right. The right to counsel is an incredibly important right. Since the average person is unfamiliar with our legal system, the law, criminal procedure and the rules of evidence, the right to the assistance of counsel is essential to the proper administration of justice. An unrepresented person is at an enormous disadvantage. Imagine yourself playing a game of high stakes poker without knowing the rules. It is our personal opinion that no one should ever attempt to represent himself or herself in a criminal case. Never represent yourself!
Many times, people are not formally advised of the right to counsel until they come to court the next day, or in some instances at their arraignment some weeks after their arrest. In many cases, having the assistance of an experienced lawyer early in the prosecution process can make an enormous difference in the outcome of your case. It can in some instances make a difference in whether or not your case goes forward. It is also important to hire an attorney familiar with the local rules, judges, prosecutors and law enforcement. Just like in fishing, often, a local guide makes the difference between success and failure.
When a police officer makes an arrest, generally it is because the officer has formed an opinion that he or she believes probable cause exists that a specific person has committed a particular crime. The actual decision as to whether or not to go forward with the prosecution, however, is not made by the officer. That decision is made by a prosecutor, often referred to as the DA.
If a defense lawyer is hired immediately following an arrest, in some instances, the attorney may actually convince the prosecutor to drop the charge or to file a lesser charge. On the other hand, if after an arrest, a person simply waits for an arraignment date, a valuable opportunity may be missed to have their defense attorney intervene and raise these critical issues during the case filing decision process. There is a window of opportunity between the date of arrest and the filing of the charge and, in some instances, timely intervention by a good attorney can make an enormous difference.
The right to counsel in a criminal case is so important that if a person is poor, or without funds, and has no way of hiring an attorney, the court will appoint an attorney. Although attorneys must meet minimum requirements to practice law, just like doctors, their qualifications and levels of experience may vary greatly. In the criminal justice system, defendants are generally represented by either private attorneys, public defenders, or, in some rare instances, court appointed attorneys.
Hiring a lawyer in many respects is like going to the doctor of your choice. If you hire your own lawyer, you can select the lawyer you feel is most qualified and experienced. You can interview various attorneys and then pick the one that you want to stand beside you in court. If the court appoints the public defender's office or another court appointed lawyer, you have no input and really no choice in who is representing you. The public defender appointed for you may be highly qualified and experienced, or someone fresh out of law school and recently admitted to the Bar, with little or no courtroom or trial experience.
In order to qualify for a public defender, the court must make inquiry to determine if the accused person is financially unable to hire his or her own attorney. An arrest, for most people, is not a planned event. Most people do not have money set aside to hire a lawyer and, for many people, hiring an attorney is a financial hardship. In some respects, it is similar to many other financial emergencies, such as a medical emergency or a car breakdown, or a hurricane. Just like most other emergencies, many people often have to raise money by contacting friends, relatives, or employers.
For many people, it is necessary to borrow money or charge the attorney's fee on a credit card. Unfortunately, there are, however, some people who simply cannot raise funds from any source. Just as some people have no choice other than to go to a public health clinic, these individuals have no choice other than to use the services of the public defender.
Unfortunately, the public defender's enormous caseload in many instances limits the amount of time that can be devoted to a particular case. Competent private attorneys never take more cases than they can competently and adequately handle. They have a choice. The Public Defender's Office, on the other hand, has no choice. Just as sometimes the jails are overwhelmed and overcrowded, the public defender's case load is also sometimes overwhelmed. Sadly, it has been my observation that often the public defender meets or sees his client for the first and only time in the courtroom or in the hallway minutes before entering a plea of guilty.
Many times, if a person is in jail, he or she may have no face-to-face contact with his or her public defender until after the arraignment date, some three or four weeks after the arrest. Unfortunately, communicating with the public defender by telephone is often made difficult by the public defender's case load and daily court appearances and restrictions on phone usage at the jail.
Choosing the right lawyer may be one of the most important decisions you will ever make. If you have been arrested, you have already made one mistake. Don't make another by hiring a cheap or inexperienced lawyer. Would you want to buy the cheapest parachute or a bargain life jacket?
COURT DATES
First, and most importantly, it is the responsibility of the accused to be in court on his court date. If a person fails to appear when required, it can result in the bail bond being forfeited and a warrant being issued for an arrest. If a person moves or if their address is incorrectly listed on the court notice, it is their responsibility to contact the Clerk of Court with the new address. Staying in touch with your attorney is also very important, because many times the court dates are changed on short notice.
When a person is arrested, they will generally have a "first appearance" before a judge. This generally occurs within 24 hours if they are in custody. Many times this "court appearance" will be by video camera from the jail. At this court appearance, the judge will review the officer's arrest affidavit to determine if there is probable cause to support the arrest. A finding of probable cause does not mean a person is guilty, it simply means that there are sufficient facts for the case to proceed forward. At this first appearance, the judge may also set bond. Many times, a person may not have been allowed to speak with an attorney before this appearance. If a public defender has been appointed, many times the person's first contact with him or her is over the TV screen in the presence of the judge and the prosecutor.
Generally, the next court date is the arraignment. The arraignment usually occurs a few weeks after an arrest. At the arraignment, a person is advised of the formal charge against him or her. The court should send written notice advising the date of the arraignment. On some occasions when a person goes to the arraignment, the prosecutor may request that it be reset for a future date. The prosecutor may not have made a decision as to whether or not to go forward. If a person has an attorney, and if the attorney has filed a written plea of not guilty, it may not be necessary for the defendant to attend the arraignment. It is important to always check with the attorney before going to court for arraignment. Never miss a court date.
At the arraignment, the court will set a trial date. Most judges also set a date for what is referred to as a docket sounding or a pretrial conference and in some instances for what is known as a case management conference. This date is usually some weeks prior to the actual trial date. Many judges do not require the accused to attend the pretrial conference or hearing, but some do. Always check with your attorney to see if your presence is required. Judges' policies are different and it is in your best interest to never, ever miss a court date. Stay in touch with your attorney. You may also be able to confirm your court dates online with the clerk's office, but most importantly, always stay in touch with your attorney. Do not rely on the court dates you see on the clerk's page.
Often, cases are continued for various reasons. It may be that the witnesses are unavailable, or attorneys have not completed trial preparation. If the case is continued at the attorney's request, the defendant is asked to waive speedy trial. In most instances, waiving speedy trial does not hurt your case. Discuss this issue with your attorney. Many times, if the case is going to be disposed of by way of a plea bargain, the court will set what is known as a "plea date." This will be the day you go before the judge to end the case. Always dress respectfully when coming to court. First impressions make an enormous difference. Dressing or acting disrespectfully in court will hurt your case. Do not come in shorts, flops or some skimpy outfit. Dress like you are going for a job interview.
Ultimately, if the case is not resolved by either a dismissal or plea negotiation, a trial date is set. Most judges have a one or two week trial docket. Generally, the case will be set for trial during that one or two week period. Since the judge may have many cases set for trial during that period, it is difficult to predict exactly when each case will be called for trial. When a case is set for trial it is important that you stay in touch with your attorney, since often the court's schedule changes and the case may either be called early or delayed. If a judge does not reach a particular case during the trial period, it may be reset or rolled over to the court's next trial docket. I cannot stress enough that throughout the process it is important that you stay in touch with your attorney. Many attorneys try to return client calls daily. There are rare occasions where attorneys may not be able to get out of court until after business hours. Many attorneys realize that pending criminal charges create anxiety and do their best to promptly return calls.
The key to understanding court dates and the case is communication. Staying in touch with the attorney and the bondsman will help in not missing court, and may help ease your peace of mind.
PLEA NEGOTIATIONS
Although some cases go to trial and some cases are dropped, most cases are resolved by way of a negotiated plea. This is also called plea-bargaining. There are advantages and disadvantages to negotiating. Anytime a case proceeds to trial there is some degree of uncertainty. However strong the defense, there is risk in putting your future in the hands of a jury. If a plea is negotiated, it will dramatically reduce that uncertainty. A negotiated plea may result in a reduced charge, a reduced sentence and reduced exposure to risk. A skillful attorney may be able to negotiate a "withheld adjudication" resulting in no formal felony conviction. Since a felony conviction affects many of our civil rights, a negotiated plea or a withheld adjudication may be a wise choice. A negotiated plea may also result in a reduced sentence including, sometimes, no jail time at all.
In many instances, a negotiated plea involves a period of probation or house arrest. A negotiated plea may also result in reduced fines and restitution, or no fine at all.
It is a very difficult decision whether or not to go to trial or accept a plea bargain. If the case proceeds to trial and the verdict is not guilty, the defendant is found not guilty and set free. If, on the other hand, the case is resolved by way of a plea bargain, the defendant will never know how the jury may have decided the case. Ultimately, it is the defendant, and the defendant alone, who must make the ultimate decision as to whether or not to go to trial or accept a negotiated plea. Although the attorney may give advice, the attorney is not the one who must face the consequences of a verdict or comply with the terms of a plea agreement, which often involves probation.
Most attorneys are experienced negotiators and in many instances can strike a better plea deal than the unrepresented client. Even if the facts point heavily towards guilt, an experienced attorney may be of invaluable assistance in this "negotiation" process.
In some cases, the attorney may uncover facts in the trial preparation process that can dramatically affect plea negotiations. For example, if the police have made a legally questionable arrest or an illegal search, this issue, when properly raised by a skillful attorney, may result in a more favorable plea offer. An attorney's knowledge of the law, skill, and experience, are all factors that can affect plea negotiations. Most experienced criminal attorneys are also experienced negotiators. In my view, it is the attorney's job to assist people who have been charged with a crime in making informed decisions about their future. Although an attorney may recommend a course of action, the decision is always that of the client.
Plea negotiations often result in some form of formal supervision. Sometimes this is in the form of "probation." In some cases it may be "house arrest." There are many times, however, when a client may choose to serve a relatively short jail sentence as opposed to a long period of probation or house arrest. Some people's lifestyle makes them bad candidates for probation. For example, a person addicted to crack cocaine, unless he or she receives treatment, is highly unlikely to successfully complete probation. For most people, probation is mainly an inconvenience, and not a severe restriction on their daily life. Most experienced attorneys attempt to counsel and help people choose which disposition is best but ultimately the decision is always the client's.
Depending on the seriousness of the crime and the strength of the state's case, probation may not be an option. Florida has "sentencing guidelines" that take into account the nature of the offense, a person's prior record, injury and harm to the victim, and other factors. Generally, a computation is made from the guidelines and a sentencing score sheet is prepared. Here, knowledge and experience in dealing with the guidelines is important. For example, convincing the prosecutor to change or reduce the charge may significantly change the guideline sentence. Sometimes, it can mean the difference between jail and probation, it may significantly reduce the length of a sentence, or sometimes, it can mean no jail at all.
If the charge is theft, grand larceny or a property crime, often restitution is an issue. A skilled, experienced attorney often can negotiate the amount of restitution, as well as the terms of payment. Since many times restitution is made a condition of probation, it is important that the amount not only be reasonable, but also payable. An experienced attorney should never negotiate an unrealistic amount that his or her client cannot pay since this may result in a future violation of probation. Since most criminal cases are resolved by negotiation, skill and experience in negotiating are critical. Being a good negotiator, however, is not enough. In the negotiation process, it is important that the prosecutor understand and know that the attorney is also skilled in the area of jury trials. Your defense attorney's reputation, demeanor, trial results, and years of experience are all factors the prosecutor must weigh into this negotiation process. Skilled negotiators negotiate from a position of strength, not weakness. Unless the prosecutor recognizes your attorney as a credible trial threat, an acceptable plea offer may not be extended. Some attorneys have a reputation for avoiding trials and always negotiating. The prosecutor must know your attorney is not afraid of going to trial.
The decision of whether or not to accept a negotiated plea is ultimately the client's alone. In my thirty years of defending criminal cases, I have found it best to never try and convince or force someone to accept a plea bargain. My goal is to help a client make an informed and intelligent decision. In this regard, the attorney's participation in countless trials and observation of hundreds of verdicts may be helpful I the decision-making process.
TRIALS
A trial is a stressful event. The anxiety that comes from uncertainty is enormous. The state has the burden of proving guilt, and must call witnesses and present evidence. The accused does not have to prove his innocence because of the presumption of innocence. It is the prosecutor's burden to prove guilt beyond a reasonable doubt. If a person chooses to go to trial instead of plea-bargaining, in most instances, it will be a jury trial. I some instances, if the parties agree, you may go to trial before a single judge, without a jury.
If it is a jury trial, the verdict must be unanimous. If jurors cannot agree, it is what is known as a hung jury; this rarely happens. Most of the time the defendant's case is simply set for trial again.
A jury trial, even in the simplest of cases, is a complex undertaking. Jury selection is a complicated process where experienced attorneys question jurors in an attempt to find impartial jurors. An attorney's experience, knowledge, and demeanor weigh heavily in this process. A juror's first impression is important and the experienced attorney's ability to articulate and communicate is often critical to success.
Although the law dictates this presumption of innocence, it has been my experience from questioning hundreds, if not thousands, of prospective jurors that many jurors feel that a person must have done something illegal or they would not have been arrested. Jury selection is one of the most important phases of the trial. In my opinion, this is where in many cases are won or in some crimes such as sex offenses carry such a stigma that the selection of an unbiased juror is extremely difficult. Other cases are highly publicized, making it difficult to find impartial jurors.
The Sixth Amendment of the United States Constitution gives the accused what is known as the right of confrontation. This means that the state has to produce and call witnesses, and the attorney can confront them in cross-examination.
Skilled cross-examination is an art form. It is not just asking questions like "what happened next." Through skillful cross-examination, an attorney may entirely discredit a witness's testimony. Skillful cross-examination can also bring out testimony helpful to the defense. Cross-examination may also create conflicts within the testimony of other witnesses and, ultimately, may create that all important reasonable doubt. Skill in cross examination comes from years and years of experience.
At trial, a defendant has the choice of testifying or remaining silent. It is entirely the defendant's choice. No one, including the prosecutor or judge, can make a defendant testify against him or herself. The Fifth Amendment of the United States Constitution guarantees you this important right. If a defendant decides not to testify, the prosecutor is not allowed to even mention it. The court will tell the jury that they are not to consider the failure of the defendant to take the stand as evidence of guilt.
At trial, only admissible evidence may be used by the State. For example, if the police illegally seized evidence from a person, their vehicle or their home, in violation of the Fourth Amendment, it should not be used. If the police illegally obtained a confession, without reading Miranda rights, it cannot be used in court. Many of these evidentiary issues are decided before trial at what is commonly referred to as a "suppression hearing." The Fourth, Fifth and Sixth Amendments, and the court decisions interpreting them, provide many safeguards intended to ensure due process and a fair trial.
The Rules of Evidence and the Rules of Criminal Procedure, and the cases interpreting them are very complex, and the unrepresented defendant has little chance of success.
Once the State presents its evidence, the defense attorney can challenge the sufficiency of the evidence by asking the court for a Judgment of Acquittal. If the state has failed to prove an essential element of the crime, the case may be dismissed. If the court decides that the state has presented a case sufficient for at least the jury's consideration, the case goes forward. At this point, the defense has the right to call witnesses. The defense can subpoena witnesses who will not voluntarily come to court. This is called the right of compulsory process. Witnesses may be called to contradict the state's witnesses or simply to prove some fact critical to the defense. The defense attorney can question the witness and the prosecutor will have an opportunity for cross-examination.
Once all the evidence is presented, in most instances, the defense can again ask the judge for a Judgment of Acquittal. If the judge again permits the case to go forward, then the next step is closing arguments.
It is at this phase that the attorney's experience and ability to effectively argue and communicate is important. The power of persuasion and the ability to pick apart the prosecutor's case are skills seasoned attorneys gain from years of trial experience.
After the closing arguments, the judge instructs the jury on the law that they must follow and the jury then retires to decide the case.
Jury deliberations can take minutes, hours or days. No two cases are the same. If the jury returns a verdict of not guilty, the judge makes a formal finding and the defendant is set free. If the jury returns a verdict of guilt, the court may either immediately impose sentence or order a pre-sentence investigation to learn more about the defendant's background and history before sentencing. After the trial, the attorney can ask the court to reconsider a previous ruling or file an appeal attacking the conviction and the sentence. The process for reconsideration or an appeal is complex and success on appeal is not automatic.
After conviction, a sentence will be imposed. In theory, people are not supposed to be punished for exercising their right to trial. In reality, many courts impose a harsher sentence on those who go to trial and lose. The courts sometimes explain this difference by simply saying that they are imposing a lighter sentence on those who plead and admit guilt because admitting guilt is the first step towards rehabilitation. Regardless of how it is explained, the reality is that contesting your guilt and exercising your right to trial may well result in a longer sentence. This is a factor that must be considered in deciding whether or not to accept a negotiated plea.
The Eighth Amendment is supposed to protect people from cruel and unusual punishment but the simple fact is state prison is a terrible place where sometimes terrible things happen.
Unfortunately, many crimes carry minimum mandatory penalties that are extremely harsh. These crimes do not take into account whether or not it is a person's first offense or the person's background. The courts have routinely upheld these mandatory penalties and, in the foreseeable future; in my opinion the laws will only become harsher.
Discuss thoroughly with your attorney all plea offers, as well as the option of trial. It is critical that you be honest with your attorney. What you tell him is protected under what is known as attorney-client privilege. If you are not honest with your attorney and he prepares a defense based on bad information from you, in the long run, it will only hurt you. It is very important for you to be honest and forthright with your attorney.
I hope that this has been helpful in explaining to you some of your basic fundamental rights. As a criminal defense lawyer, with over thirty years of experience, I can tell you, a good lawyer does make a difference. All defense lawyers are not created equal. There is a difference in skill level, experience, confidence, negotiation skills and in the end…results.
If you want to discuss your case or get a second opinion before making an important decision, call any one of our three offices in Fort Myers or Punta Gorda and ask to speak with me or my partner, Sean O'Halloran. We are bother former prosecutors with over forty years of combined trial experience.
