© 2017 By Law Offices of David P. LiBassi

CRIMINAL LAW - GENERAL INFORMATION

The criminal justice process begins with an alleged crime. A complainant makes an accusation, which is investigated by the police, acting as agents of the government. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the appropriate jurisdiction. If the offense is classified as a felony, the Fifth Amendment of the Constitution of the United States requires that a federal case be referred to a grand jury for an indictment. The Supreme Court has held that the right to a grand jury does not apply to the states. Therefore, each state has its own set of grand jury procedures. Some follow rules that mirror the federal system, but others make use of the indictment optional, and allow the prosecutor to file a complaint or information to formally charge the defendant with the crime. Three states (Connecticut, Pennsylvania, and Washington) and the District of Columbia do not use grand jury indictments.

The interests of the state are represented by a prosecuting attorney, while the interests of the defendant are represented by his defense attorney or by the defendant as pro se, acting as his own attorney. The Sixth Amendment of the Constitution of the United States guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, by an impartial jury of the State and district wherein the crime was committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defense.

While the specific process varies according to the local law, the process culminates with a jury trial (as required by the Sixth Amendment), followed by mandatory or discretionary appeals to higher courts.

In defense, the accused could argue that he had no intent to commit a crime inside the house, that it occurred during the day, or that his entry was lawful. He could also, of course, argue that the incident never happened, or that someone else committed the offense. As the burden of proving the crime occurred and was committed by the defendant rests exclusively on the prosecutor, the defendant might choose to put on no case at all, counting on the prosecution to fail in its efforts to convince the jury, or the judge in a bench (non-jury) trial.

 

  • What are the "Miranda" Rights?

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, anyone in police custody must be told four things before being questioned:

 

  • What if the Police Fail to Advise Me of My Miranda Rights?

 

When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.

 

"SEARCH AND SEIZURE"

The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property -- whether through police stops of citizens on the street, arrests, or searches of homes and businesses. Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers interfere with individuals' Fourth Amendment rights only under limited circumstances, and through specific methods.

 

  • What Does the Fourth Amendment Protect?

 

In the criminal law realm, Fourth Amendment "search and seizure" protections extend to:


A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and

Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.


The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.

 

When Does the Fourth Amendment Apply?

The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:

• An individual is stopped for police questioning while walking down the street.
• An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk.
• An individual is arrested.
• Police officers enter an individual's house to place him or her under arrest.
• Police officers enter an individual's apartment to search for evidence of crime.
• Police officers enter a corporation's place of business to search for evidence of crime.
• Police officers confiscate an individual's vehicle or personal property and place it under police control.

 

The above information derived from Findlaw.com.

To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.

BEEN ARRESTED?

IF YOU'VE BEEN ARRESTED...

Tips on What to Do

  • Do be polite and as courteous as possible to the police.

  • Do ask for the police officer's name and badge number, or read it off of his or her badge. Try to remember it. Try to get a good look at the officer's face so that you can identify him or her later by that method, if necessary.

  • Do, if you are arrested in your car, show the police officer your driver's license and registration information. Note that in other situations where you are not stopped in your car, you cannot be arrested for the sole reason of refusing to provide information, including your name and address, to the police.

  • Do place your hands where the police can see them.

  • Do, if you are taken into custody, demand the right to have an attorney present before speaking to the police.

  • Do ask if you are under arrest. If you are, you have the right to be told why.

  • Do clearly inform the police that you will not speak to them about anything without an attorney being present.

  • Do, as soon as you can, write down everything that happened during the course of your arrest so that you can use that writing to refresh your memory at a later date.

  • Do, if you are physically injured by the police during the course of your arrest, seek medical attention and inform your medical providers of the cause of your injuries. Take photographs of your injuries as soon as possible.

  • Do remember that you do not need to answer ANY question that the police ask of you. If you answer a question which at first seems harmless, be aware that it may come back to haunt you later.

 

Tips on What NOT to Do

 • Don't offer information to the police, no matter what tactics they use.
• Don't assume that the police have a search warrant just because they say that they do. If they say they have a search warrant, ask to see it.
• Don't get into an argument with the police, no matter how hard they may try to bait you into losing your temper.
• Don't initiate physical contact with the police, even if you mean them no harm.
• Don't give them any reason to find you threatening. Do not give them the impression that you are hard to deal with or irritating.
• Don't run away from a police officer if you see one (or more) approaching you. Running away may give the police reason to suspect that you are hiding something from them, even if you are totally innocent.
• Don't interfere with or obstruct the police. If you do, you can face additional criminal charges.
• Don't resist arrest. Even if you think you are innocent, the time to protest comes later. If you resist arrest, you may face additional charges.
• Don't allow the police to listen in on any telephone call that you make to your lawyer once you have been arrested. While the police may listen in on conversations to other individuals, they cannot listen to a conversation with your lawyer because it is protected by the attorney-client privilege.
• Don't speak to the police about anything before your attorney arrives and talks to you first.
• Don't provide the police with any information other than your name and address if you are arrested unless your attorney is present and approves.
• Don't sign anything, no matter what it is, without an attorney being present.
• Don't say anything if your attorney instructs that you remain silent. Let your attorney do the talking for you, no matter how hard it may be to resist the urge to speak.
• Don't agree to participate in a line-up without your attorney being present.
• Don't lie to your attorney, or to the police if you choose to talk to them

 

To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.

STAGES OF A CASE

CRIMINAL LAW PROCESS

Arrest

The criminal justice process typically begins when a police officer places a person under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.

 

Booking and Bail

After arrest, a criminal suspect is usually taken into police custody and "booked," or "processed." During booking, a police officer typically:

 • Takes the criminal suspect's personal information (i.e., name, date of birth, physical characteristics);
• Records information about the suspect's alleged crime;
• Performs a record search of the suspect's criminal background;
• Fingerprints, photographs, and searches the suspect;
• Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect's release; and
• Places the suspect in a police station holding cell or local jail.

Bail is a process through which an arrested criminal suspect is allowed to pay money in exchange for his or her release from police custody, usually after booking. As a condition of release, the suspect promises to appear in court for all scheduled criminal proceedings -- including the arraignment, preliminary hearing, pre-trial motions hearing, and trial.

 

If an arrestee is not allowed to post bail at the police station immediately after booking, a judge may decide later, at a separate hearing or the arraignment, whether to allow release on bail.

 

Arraignment

After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom-based proceedings takes place -- arraignment. During a typical arraignment, a person charged with a crime is called before a criminal court judge, who:

 • Reads the criminal charge(s) against the person (now called the "defendant");
• Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
• Asks the defendant how he or she answers, or "pleads to", the criminal charges -- "guilty," "not guilty," or "no contest";
• Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and
• Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

Also at the preliminary hearing, the prosecutor will give the defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, in a DUI/DWI or drug possession case, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and may be used in the case.

 

Plea Bargain

The vast majority of criminal cases are resolved through a "plea bargain", usually well before the case reaches trial. In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are generally encouraged by the court system, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.

 

Preliminary Hearing

Usually held soon after arraignment, a preliminary hearing is best described as a "trial before the trial" at which the judge decides, not whether the defendant is "guilty" or "not guilty," but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

 

What to Expect at the Preliminary Hearing ?

In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or "prosecutor"), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government's witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor's case is not strong enough, so that the case against the defendant must be dismissed before trial.

 

Pre-Trial Motions

After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

 

Pre-trial motions are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place: What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?

 

Trial

In a criminal trial, a jury examines the evidence to decide whether, "beyond a reasonable doubt," the defendant committed the crime in question. A trial is the government's opportunity to argue its case, in the hope of obtaining a "guilty" verdict and a conviction of the defendant. A trial also represents the defense's chance to refute the government's evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.

 

(Note: Although a trial is the most high-profile phase of the criminal justice process, the vast majority of criminal cases are resolved well before trial -- through guilty or no contest pleas, plea bargains, or dismissal of charges.)

 

A complete criminal trial typically consists of six main phases, each of which is described in more detail below:

 • Choosing a Jury
• Opening Statements
• Witness Testimony and Cross-Examination
• Closing Arguments
• Jury Instruction
• Jury Deliberation and Verdict

 

Sentencing

After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of punishment may be imposed on a convicted criminal defendant, including:

 

Fines:

 • Incarceration in jail (shorter-term);
• Incarceration in prison (longer-term);
• Probation;
• A suspended sentence, which takes effect if conditions such as probation are violated;
• Payment of restitution to the crime victim;
• Community service; and
• Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a "pre-sentence report").

 

The sentencing judge will also consider punishments and sentencing ranges identified in applicable criminal statutes, as well as a number of case-specific factors, including:

 • The defendant's criminal history, or lack thereof;
• The nature of the crime, the manner in which it was committed, and the impact on victims, i.e. whether injuries resulted;
• The defendant's personal, economic, and social circumstances; and
• Regret or remorse expressed by the defendant.

 

Appeals

An individual who has been convicted of a crime may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

 

In an appeal, the defendant (now called the "appellant") argues that, based on key legal mistakes which affected the jury's decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

 

In considering an appeal, the court reviewing the case looks only at the "record" of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter's transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

 

In reaching a decision on the appeal, the higher court ("appellate court") looks to this record and to the written "briefs" filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government's position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

 

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

 

 

The above information was derived from FindLaw.com.

To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.