© 1998 – Joyce B. David, Attorney at Law
People exposed to the Criminal Justice System for the first time often feel like they’re in a foreign country with strange rules, procedures and language. This handbook is geared to the state system in New York, but many of the general principles apply to other jurisdictions as well. It’s based on over 20 years of experience “in the trenches”. It’s a realistic, not a philosophical look at the system.
This handbook has general information and shows how cases make their way through the system. Most of the legal terms used are explained in the text or are self-explanatory. This handbook does not deal with specific cases or crimes. Some information is too technical or complicated for this book. If you have general questions, you may call me at (718) 426-0444.
The Criminal Justice System, just like the rest of life, is not always fair. It doesn’t mean we give up, it means we try harder.
CHOOSING A CRIMINAL LAWYER
If you can afford a private lawyer, you should hire a criminal lawyer. You wouldn’t go to an eye doctor for a problem with your elbow. Don’t hire a lawyer who approaches you in the courthouse. Lawyers are not supposed to solicit clients that way.
Find out how much criminal experience a lawyer has before hiring her. The more serious the charges against you, the more experienced a lawyer you need.
It helps if your lawyer practices where your case is pending. S/he’ll know the judges and D.A.’s (District Attorney – prosecutes the case against you) and will have a better idea of what you can expect in your case.
You also have an advantage if the judges and D.A.’s know and respect your lawyer. They’re more likely to listen to your lawyer if she has a good reputation.
It’s important to trust your lawyer. Her job is to defend you and protect you from the system, whether you’re innocent or guilty. If you committed the crime or participated in some way and don’t feel comfortable telling your lawyer, you should get a different lawyer.
You’re not helping yourself if you think your lawyer will do a better job if s/he thinks you’re innocent. It’s not a good lawyer/client relationship if you don’t trust your lawyer enough to be truthful. Your lawyer can’t advise you effectively if you keep things from her. Everything you tell your lawyer is confidential, even if you eventually hire a different lawyer. The lawyer’s obligation is to her client, no matter who is paying the fee.
Ask your lawyer to explain what’s happening with your case. Don’t think your questions are stupid just because you don’t understand the system. It’s a complicated system – that’s why you need a lawyer’s help.
Just because your lawyer isn’t in touch with you all the time, doesn’t mean s/he isn’t working on your case. There will be times when your lawyer may have to give priority to someone else’s case. This is most likely to happen when s/he’s doing a trial. Trial is the most important and difficult part of a case. It demands the most attention and concentration.
Don’t be upset if your lawyer can’t appear on your case when s/he’s on trial with another defendant. It doesn’t mean your case isn’t important, just that at this time, another client’s case needs priority. You’ll appreciate this when your case goes to trial. You wouldn’t want your lawyer distracted by less pressing matters when you face your moment of truth.
Lawyers’ fees vary depending on the amount of experience they have and the nature of the case. It’s best to have a clear understanding about the fee before any work is done, so your lawyer can concentrate on your case and not your bill. Your lawyer’s fee will usually not include any other expenses. You usually have to pay separately for a private investigator, expert witnesses (if necessary), transcripts, etc. Appeals, civil work and re-trials are also usually extra. Criminal lawyers usually require most or all of their fee up front. This should all be clearly spelled out in the retainer agreement you sign when you retain the lawyer.
Ironically, innocent people often have to pay higher fees. Because they’re less likely to plead guilty, their cases usually require more work, to prepare for and take through trial. You shouldn’t be looking for bargains when your freedom and reputation are at stake.
Many people accused of crimes can’t afford to hire a private lawyer and are assigned a lawyer. You can’t choose your assigned lawyer. Lawyers who work for the Legal Aid Society or other “defender organizations” are like Public Defenders. In New York, there are also panels of private lawyers who accept assignments of criminal cases from the court and are paid by the state to represent indigent defendants (called 18b lawyers).
If two or more defendants are charged with committing a crime together, Legal Aid may only represent one defendant, the others get 18-b. You may get 18-b if Legal Aid represents a witness against you. If you are facing the death penalty, you will have a lawyer assigned to your case who has been deemed qualified to handle death penalty cases. If you have a federal case, you will be assigned a Federal Defender from the Legal Aid Society, or a CJA (Criminal Justice Act) lawyer (like 18-b).
WHY YOU NEED A LAWYER
The sooner you get a lawyer involved in your case, the better. There are important decisions to be made and rights to be protected, early in a case. If you hear that the police are looking for you, call a lawyer before responding to them. S/he can find out what the police want – if they want to question you as a witness or a suspect. If you’re a suspect, s/he can tell the police that s/he doesn’t want you questioned. If they talk to you after that, they can’t use your statements against you, unless they can prove that you blurted out a confession without being asked any questions.
If you’re accused of drunk driving, try to call a lawyer before you submit to a breathalyzer test. If you refuse to submit to the test you may lose your driver’s license, but if you submit to the test and are found legally intoxicated, there may be more serious consequences. If you’re arrested, call a lawyer or someone you can count on to help get you one. Be careful what you say on the phone – the police may overhear what you say.
SILENCE IS GOLDEN
The police are good at getting confessions. It’s the easiest way for them to wrap up a case. If they trick you into confessing by telling you things will go easier for you or that a co-defendant has implicated you, this may be considered good police work, and a judge may allow the D.A. to use your statements against you. It’s harder to defend you if you’ve made a confession or admission. Telling the police you were at the scene of the crime but didn’t do anything is an admission to an element of the crime. Your silence can’t be used against you.
If you’re arrested, you can tell the police your name, address, date of birth, etc. (pedigree information), but don’t answer questions about the crime or where you were when it happened. Tell the police that you do not wish to answer questions without speaking to a lawyer first. Don’t answer questions or make statements about your case to the police or the D.A. Don’t sign any statements. Don’t let yourself be video-taped. Tell the police you want a lawyer whether they read you your rights or not. Don’t think you can outsmart the police or that they’ll release you if you talk to them.
The police want to make a case against someone they suspect committed a crime. They’re not your friends unless you’re the victim. They may mislead you if they want you to talk to them, and you may find yourself under arrest based on your own statements.
If the police stop you on the street (before you get a lawyer), they may be able to use what you say against you even if they don’t read you your rights (right to remain silent; anything you say can be used against you; right to have a lawyer during questioning; if you can’t afford a lawyer one will be provided for you). Don’t answer questions about a crime without a lawyer. If they tell you that you don’t need a lawyer if you didn’t do anything wrong, don’t fall for it.
If you’re in jail, be careful what you say to other inmates. They may try to work out their own problem with the law by becoming a witness against you. Be careful about discussing your case with a co-defendant. You never know when s/he might decide to take a plea and/or cooperate with the government against you. This often happens in big Federal cases. Don’t talk to the press.
DON’T WAIVE YOUR RIGHTS
Don’t consent to a search of your home, your car or your person. Don’t consent to being put in a line-up or show-up. This doesn’t mean you should physically resist, just that you should object and tell the police you want a lawyer.
Don’t resist arrest or become verbally abusive to the police or you might find yourself charged with additional crimes, and possibly injured in the arrest process. (If you’re the victim of police brutality, try to have pictures taken of your injuries. If you want to sue the city, you must file a Notice of Claim within 90 days of the incident).
If the police are going to put you in a line-up, ask to have a lawyer there. S/he can determine if they have the right to do so, and if they don’t, s/he can protect you.
If they have the right to put you in the line-up, your lawyer can monitor the procedure to make sure it’s done fairly and that the police don’t do anything improper, like suggesting in some way that the witness pick you out.
If the people placed in the line-up with you don’t resemble you, s/he can ask the police to find better fillers. If they won’t find better fillers, s/he can note differences in appearance between you and the fillers to help later when the D.A. tries to use the line-up identification against you. The police usually take a black & white Polaroid picture of the line-up that doesn’t clearly show the differences between you and the fillers. If you don’t have a lawyer at the line-up, this photo and the police testimony will often be the only evidence a judge will have, to decide if the line-up was fair.
A lawyer is very helpful at this stage. S/he can help you choose the best place to sit and number to hold to minimize your chance of being picked. If you’re not picked out of the line-up, your case may be over before it begins, and you’ll save a lot of hassle and money.
Identification cases are hard to defend. Even though identification testimony is the least accurate, it’s the most believed by jurors.
ACTING IN CONCERT
If you’re accused of committing a crime with other defendants, you can be charged with everything your co-defendants are charged with. Even if your participation was minor, like being the look-out, or driving the get-away car, you can be charged with the more serious crime(s) committed by your accomplice(s).
If you’re arrested for “felony-murder” (where a non-participant is killed during the commission of certain felonies), and you tell the police that you “were just the look-out, but didn’t shoot anyone”, you may have just confessed to felony-murder.
Certain crimes are considered more serious and result in greater penalties just because they’re committed by more than one defendant.
If the police are looking to arrest you, your lawyer can arrange for you to surrender. It’s a good idea to surrender (if the police intend to arrest you), because it will show the court that you’re a responsible person, worthy of being released on your own recognizance (ROR’d), or on low bail, when you appear before a judge for arraignment. It may also be helpful at plea or trial to show your cooperation.
Bail is money that’s posted to ensure that you will return for your court appearances. By surrendering you show that you’re likely to return to court without having high bail set. Your lawyer can tell the judge that you knew the police were looking for you, had the chance to run, but didn’t. Surrendering won’t guarantee low bail, but it gives you a better shot.
THINGS YOUR LAWYER MAY NEED TO KNOW
There are things your lawyer needs to know, to defend you. Below is a list of some information s/he may need:
1) Whether you have any witnesses. These include alibi witnesses; character witnesses & eyewitnesses;
2) The names, addresses and phone numbers of your witnesses, so s/he can get their statements, and advise them of the disadvantage to you if they speak to the D.A.;
3) Where and when you were arrested and the circumstances surrounding your arrest;
4) Whether you were shown to any witnesses by the police and the specifics of that identification procedure;
5) Whether the police found anything on you relating to the crime;
6) Whether the police had an arrest warrant or a search warrant;
7) Whether you know the witnesses against you and if they have any motive to lie;
8) Whether you made any statements to the police or the D.A. If so – Were you read your rights? Was any force used against you? Do you have any injuries?
9) Whether you’re on probation or parole;
10) Whether you have problems that may affect your case, like mental or physical problems, or problems with drugs or alcohol. These problems may help your defense;
11) Your immigration status. If you’re not a citizen, a criminal conviction may create problems with immigration.
A police officer can arrest you, without a warrant, if s/he sees you committing a crime or if s/he has “probable cause” to believe you committed a crime. All it takes is one person making a criminal complaint against you, without any corroboration, to give the police “probable cause” to arrest you. They’ll arrest you even if you tell them you’re innocent. They hear that from almost every defendant, even the guilty ones, so they leave it for the courts to decide.
Clients sometimes think that there is no evidence against them, but testimony is evidence. Your own statement to the police is evidence. At trial, the testimony of one witness may be enough to convict you, if the jury believes that witness beyond a reasonable doubt. The police can charge you with possession of a gun or drugs, even if they don’t find anything on you, if a witness claims s/he saw you with a gun or drugs. Circumstantial evidence is also admissible against you.
The police should have an arrest warrant if they’re arresting you at home, or a search warrant to search your home, but there are exceptions to every rule. If the police say they have a warrant, ask to look at it.
When you’re arrested, you’ll be processed by the police (booked) before being brought to court for arraignment. The amount of time between arrest and arraignment should be less than 24 hours.
After some preliminaries in the precinct, which usually include being searched, fingerprinted, photographed, and in some cases, an identification procedure (line-up or show-up), you’ll be taken to Central Booking to be processed further. If the police take any property from you, ask for a receipt (sometimes called a voucher). You will need this later to help get your property back.
There are sometimes delays in the booking process. Your fingerprints are sent to Albany to get your criminal record and to check if you have any warrants. Sometimes the computers aren’t working and this delays getting your criminal record. If it’s your first arrest, the process often takes longer. If you refuse to be fingerprinted, you can be held until you agree.
CRIMINAL JUSTICE AGENCY INTERVIEW
After you’re booked, you’ll be interviewed by the N.Y.C. Criminal Justice Agency bout your residence, employment, criminal record, etc. (not about the facts of your case). They prepare a report (often called an ROR sheet) making a recommendation to help the judge presiding at the arraignment decide what bail to set for you. It’s important to answer their questions accurately. They will contact a friend or family member (depending on the name you give them as a contact person) to verify your information. If you give them incorrect information, it hurts your chance of getting low bail, because they’ll note the fact that your information was inconsistent with the verifier’s, and it will look like you’re trying to hide something from the court.
If you give a phony name when you’re arrested, the D.A. may use it against you later to ask a judge to set high bail because you tried to hide your identity or to impeach your credibility if you testify at trial.
WHAT ELSE HAPPENS BEFORE ARRAIGNMENT
While you’re being booked and interviewed by the Criminal Justice Agency, the D.A.’s office will be drawing up a formal complaint against you. This is usually done by their Early Case Assessment Bureau (E.C.A.B.). They interview the arresting officer and/or the witnesses/victims, and decide what you’ll be charged with. They may charge you with different crimes than the police did.
All of the above must be done before you are brought to court for arraignment. There are sometimes delays in being brought to court. The system may be backed up if a lot of people have been arrested before you who are also waiting for arraignment. Sometimes the delay is more than 24 hours. People often get upset at this delay, but there’s really nothing you can do about it. Your lawyer can find out where you are in the system and let your family know approximately when you’ll be arraigned. In certain boroughs, private lawyers are given preference once you’re produced in court, and this can speed things up.
CRIMINAL COURT ARRAIGNMENT
At the arraignment, your lawyer will interview you, tell you the charges against you, advise you of your rights and ask the judge to release you on your own recognizance (ROR) or set low bail. If you can’t afford a private lawyer, a lawyer will be assigned to you.
Your lawyer may “waive formal arraignment”, so the charges against you won’t be read aloud in open court. Your lawyer and the D.A. may discuss your case with the judge. Your lawyer can get some valuable information from the D.A. at this “bench conference”. There may be some discussion about a plea-bargain. Certain cases are disposed of at the arraignment. Your lawyer will discuss the offer with you and advise you if s/he thinks it would be a good idea to accept it. Sometimes felony charges are reduced to misdemeanors at the arraignment.
If the charges are serious felonies, they probably won’t be disposed of at the arraignment. The D.A. may give notice that s/he intends to present your case to a Grand Jury. Your lawyer may give reciprocal notice, that you wish to testify in the Grand Jury on your own behalf. The Grand Jury will be discussed later in this book.
The witnesses against you do not have to come to the arraignment or appear in court unless they’re required to testify (in the Grand Jury, at a hearing or at trial).
The judge at the arraignment determines your bail. You may be released on your own recognizance (ROR’d), have bail set, or be remanded without bail. Remand is likely if you’re charged with murder, or with a serious felony and have another pending felony.
It helps to have friends and family at the arraignment. Bail may be lower if your lawyer can show the judge you have strong community ties, as evidenced by the people who come to court for you. Have your people bring money with them for bail. The lawyer can often estimate the amount of bail the judge will set, depending on the nature of the case, your criminal record, your community ties, and which judge is presiding in arraignments. If your people have money with them at the arraignment and the judge intends to set bail that’s a little more than they have, your lawyer can tell the judge the amount of money your people have with them, and the judge might set the bail at that amount, so you can be bailed out from court. It’s easier to post bail at arraignment. Once you’re removed from the court building, bail must be posted at the jail you’re in or at other designated places, and the process takes longer.
The first bail set is the most important. It’s hard to get bail reduced unless you can show there’s been a change in circumstances since the first bail was set. Bail can be posted by a bail-bond or in cash. When bail is set, there’s usually a bond amount and a cash alternative. To get a bail-bond, your people have to see a bail-bondsman. He requires at least 5% of the bond in cash, and collateral for the rest, like a house or bank book.
WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT
If you can’t make bail, your case is adjourned to 6 days from the date of your arrest. If you’re in jail, the D.A. has 6 days (on a felony) from the date of arrest to have witnesses give sworn testimony supporting the charges against you, either at a preliminary hearing (rare) or before a Grand Jury which then votes an indictment. On the “adjourn date” after Criminal Court arraignment, if the D.A. has not complied with the law, you should be released (ROR’d). But if the D.A. can show good cause for not getting an indictment or holding a preliminary hearing within the 6 days, s/he can get an extension. Most felonies are presented to a Grand Jury within 6 days of arrest, to prevent the defendant’s release.
It’s rare to get a preliminary hearing in New York City because at a preliminary hearing the defense lawyer can cross-examine the witnesses. D.A.’s would rather not expose their witnesses to cross-examination at this early stage and they avoid this by going to the Grand Jury instead. Grand Jury proceedings are secret and defense lawyers can only be present when/if their own client testifies.
A Grand Jury is 16-23 people who hear evidence presented by the D.A. and decide if there’s enough to transfer your case to the Supreme Court as a felony. 12 grand jurors can vote an “indictment”, or they can return the case to Criminal Court as a misdemeanor if they think there is not enough evidence for felony charges but is enough for misdemeanor charges (“Prosecutor’s Information”).
The Grand Jury is an “arm” of the D.A.’s office. The D.A. can easily get an indictment because the Grand Jury usually only hears one side. There’s no judge to rule on the admissibility of evidence or defense lawyer to cross-examine the witnesses, and they usually don’t hear from the defense.
If you’ve been arrested, your lawyer will be notified if the D.A. intends to present your case to a Grand Jury. If your lawyer advises you to testify in the Grand Jury, and/or present witnesses, s/he must notify the D.A. before the Grand Jury presentation is completed.
You have a right to testify in the Grand Jury, but your lawyer must get permission to present other witnesses. If you testify, your lawyer can be there with you, but s/he can’t ask questions or make objections. S/he can’t be there when your witnesses testify. If things go well for you, the Grand Jury will not vote an indictment (No True Bill), and your case will be over, saving you a lot of hassle and money. This is another reason to get a lawyer working on your case as soon as possible.
An indictment is a formal accusation listing the felony charges against you in the Supreme Court. The difference between an indictment and a complaint is that an indictment is based on sworn testimony. An indictment is not evidence of guilt.
If you’re indicted, your case is transferred to the Supreme Court. If you’re out of jail, you and your lawyer may be notified by mail, when to come to Supreme Court to be arraigned on the indictment. If you’re in jail, you’ll be brought to Supreme Court for arraignment and your lawyer will be notified to appear.
Occasionally cases are presented to a Grand Jury before anyone is arrested. If the Grand Jury indicts, this is called a “silent indictment”. The same procedure may be followed if you were arrested for a felony and had your case dismissed by a judge in the Criminal Court. The D.A. still has the right to present felony charges to a Grand Jury within six months of your arrest. There’s no time limitation if you’re accused of homicide.
In “silent indictment” cases, you won’t be notified that your case is being presented to a Grand Jury and you may not have the chance to testify or present defense witnesses. You’ll still be able to present your defense at trial. If you’re indicted this way, an arrest warrant is usually issued and you’re brought to Supreme Court for arraignment on the indictment, by-passing the Criminal Court.
SUPREME COURT ARRAIGNMENT
Supreme Court arraignment is like the Criminal Court arraignment on the initial complaint. You’re advised of the charges against you and there’s a decision on bail. If you’re out of jail and have been coming to court when you were supposed to, and if you appear for arraignment when notified, your bail status will probably remain the same.
Your lawyer gets a copy of the indictment from the D.A. S/he’ll waive the public reading of the charges against you and enter a plea of not guilty for you. S/he may also get a “voluntary disclosure form” (V.D.F.), and police reports at this time from the D.A. The V.D.F. has information your lawyer needs to prepare your case.
WHAT CAN HAPPEN TO YOUR CASE
Almost all criminal cases (felonies, misdemeanors and violations) start in the Criminal Court. Cases that start as felonies and are reduced to misdemeanors and cases that start as misdemeanors or violations, stay in the Criminal Court. Cases that are going to remain felonies must be transferred to the Supreme Court. To do this, the D.A. must present evidence to a Grand Jury, and get an indictment.
There are only a number of things that can happen to a criminal case: It can be dismissed or A.C.D.’d (adjourned in contemplation of dismissal – explained later), by the D.A. or a judge (rare); you can plead guilty; or the case can go to trial (where you’re either acquitted or convicted). Under special circumstances your lawyer may get your case dismissed in the interest of justice pursuant to a Clayton motion.
If you get a dismissal; A.C.D.; acquittal after trial; or plead guilty to a violation, your case may be sealed; your fingerprints may be destroyed and your arrest photos returned to your lawyer. Unfortunately these will just be souvenirs because the police usually keep a copy of your photo in their files and your fingerprints are kept in the criminal justice computers. Potential employers generally won’t have access to your fingerprint record or information about your case, but if you’re rearrested, it may show up.
If you’re convicted after trial or plead guilty, in addition to facing possible jail time, you may be subject to fines, forfeitures and civil suits. If you’re not a citizen, you may also be subject to deportation. If you’re convicted of a felony, you may also lose some of your civil rights. Your lawyer may be able to get a Certificate of Relief from Civil Disabilities that may mitigate the effect of a felony conviction.
Serious crimes are called felonies. The most serious are “A” felonies, the least serious are “E” felonies. New York now has the death penalty for certain homicides. Certain felonies carry mandatory jail sentences, if you plead guilty or are found guilty after trial (conviction). This means you can’t get probation. These are usually cases involving drugs or the use of a gun or violence -“armed felony offenses” and “violent felony offenses” (A.F.O.’s and V.F.O.’s).
If you’re accused of a felony and have one or more prior felony convictions, jail sentences are mandatory and longer. Generally, one prior felony conviction makes you a “predicate felon”. More than one prior felony conviction makes you a “persistent felony offender” (three-time loser), and you face a lot more jail time if convicted.
If you’re on probation or parole, a conviction after trial or plea of guilty to a new crime (misdemeanor or felony) can violate your probation or parole (V.O.P.) and you’ll probably get extra jail time.
MISDEMEANORS & VIOLATIONS
Less serious crimes are called misdemeanors. Offenses that are less serious than misdemeanors are called violations and are not considered crimes.
If you’re arrested for a misdemeanor, violation, or certain low grade felonies, the police can, under certain circumstances, give you a “desk appearance ticket” (D.A.T.), which is like a summons. Instead of going through the booking process and being held in jail until you’re brought before a judge for arraignment, you’re released from custody and given a date to appear in court to be arraigned.
Penalties for misdemeanors and violations are not as serious as for felonies. You may be able to get an A.C.D. (adjournment in contemplation of dismissal). This means your case is adjourned for six months (you don’t have to return to court), and, if you don’t get into trouble within that time, your case is dismissed and sealed, as if you were never arrested. This is more likely if it’s your first arrest.
JUVENILE OFFENDERS/FAMILY COURT
Juveniles are treated as adults in the Supreme Court for certain crimes, but most juvenile’s cases are handled in Family Court. Family Court is usually crowded. You may have to wait all day for your case to be called.
If a juvenile is not released to her/his parents after being arraigned, s/he may be held at Spofford (in the Bronx) until the “fact finding hearing”, which is the equivalent of a trial in Family Court. There are no jury trials in Family Court. Many procedures and dispositional rules are different for juveniles.
If you’re out of jail while your case is pending, you must appear in court on every court date, unless your lawyer has arranged for you to be excused. It’s your responsibility to know your court date and part. Unless you’re told otherwise, be in court at 9:30 A.M.
If you get to court on time and don’t see your lawyer, check to see if your name is on the court calendar to make sure you’re in the right part on the right date. If it’s the right part and date and your lawyer isn’t there, s/he probably had to cover another case first. If you leave the courtroom to call your lawyer, tell one of the court officers, so they won’t call your case and issue a bench warrant for you while you’re not there.
The only time you should wait for a letter from the court, before appearing, is if your felony case has been transferred to the Supreme Court and you’ve been told to wait for notification of the Supreme Court arraignment date.
BENCH WARRANTS & BAIL FORFEITURES
If you’re late, or don’t show up, the judge may issue a bench warrant. You can be arrested on that warrant. If you’re out on bail, your bail money can be forfeited. A bench warrant will stay on your record and come back to haunt you later, even if you clear it up. It will give a judge an excuse to set higher bail on you in the future.
Bail jumping is also a separate crime you can be charged with if you’re out on a bench warrant for more that 30 days. It’s almost impossible to defend that charge and may give the D.A. extra leverage in dealing with your current case.
If you can’t come to court because you’re sick, or you’ve been rearrested, it’s your responsibility to contact your lawyer. If you have an assigned lawyer, that’s no excuse for not calling to let her know you can’t come to court. You should have your lawyer’s card with her name and phone number. Don’t assume your lawyer or the court will know if you’ve been rearrested.
If you have a good excuse why you can’t come to court, and your lawyer knows about it before going to court, s/he can tell the judge and ask her not to issue a bench warrant. Otherwise, the judge will issue a bench warrant and a bail forfeiture, creating a problem for you and for the person who posted your bail.
GETTING BACK BAIL MONEY
If you make all your court appearances, the bail money should be returned to the depositor several weeks after your case is over, whether you win or lose. This is supposed to be automatic, but it’s a good idea to make sure the clerk puts in a “refund request” for the return of the bail money when the case is over.
If the depositor has moved since putting up the bail money, s/he’ll have to go to the Department of Finance, at 1 Centre St. in Manhattan, with proof of identification and her/his bail receipt, to get the bail check.
If the bail was forfeited because you missed a court date, it’s difficult for the depositor to get it back. Even if you’re represented by an assigned lawyer, the person who posted your bail (depositor, or surety) may have to pay a private lawyer to do a “bail remission motion” to try to get back her/his money.
The procedure varies in each county, as does the amount of cash bail that will be returned. A “bail remission motion” must be done within a year of the bail forfeiture – that’s the “statute of limitations” on these motions. The defendant must have returned to court before this motion can be made. If you have a bail bond instead of cash bail, you must contact the bail-bondsman if there’s a forfeiture.
The bail depositor should not wait until your case is over before arranging for a “bail remission motion”. If s/he waits beyond a year from the date of forfeiture, it may be too late to get any money back, because of the statute of limitations.
If you “bench warrant”, have your lawyer check your bail status when you return. If you return within 45 days of the forfeiture, there’s an easier procedure for reinstating bail.
WHAT TAKES SO LONG
Criminal cases can take a long time to finish. This depends on the seriousness of the charges and whether you’re going to take a plea or go to trial. There are “speedy trial rules” governing the amount of time the D.A. has to be ready for trial. Technically s/he must be ready for trial within six months of your arrest, (90 days for misdemeanors), but there are certain time periods that are excluded from the six months (or 90 days). Cases can take six to 12 months, or longer, to go to trial, and speedy trial rules do not apply to homicide cases.
Some of the reasons for delays include: Crowded court calendars; busy D.A.’s and defense lawyers; and delays in getting documents from the D.A. or police, that your lawyer needs in order to prepare for trial.
Each case requires different preparation. There are certain procedures that must be followed. Your lawyer can explain this more fully as it relates to your case. The wait is frustrating, but there’s little that can be done to speed things up. Delay is usually helpful to the defendant. Trial preference is given to jailed defendants. It’s upsetting having criminal charges hanging over your head. Lawyers who are sensitive to their clients’ feelings often act as psychologists and social workers as well as lawyers. Maybe that’s why we’re also called counselors.
After arraignment, your case will be adjourned. If it’s a felony, trial preparation usually begins after you’ve been arraigned on the indictment. If it’s a misdemeanor, trial preparation begins after the Criminal Court arraignment.
In the Supreme Court, your case goes from arraignment to a “trial part” where it usually remains through trial. The first time the case is in the trial part there will be a conference – the D.A., the judge and your lawyer discuss your case to see if it can be disposed of without a trial. There will probably be a plea offer. If the plea is refused, the case is adjourned for your lawyer to make “motions”. Plea-bargaining will be discussed later in the book.
One of the biggest delays in the system is due to trial preparation. It’s better to have the delay than go to trial without adequate preparation, even if you’re in jail. Your lawyer will prepare an Omnibus motion which is a formal written request for certain information the D.A. has about your case (discovery), and requests that certain evidence be suppressed on the grounds it was obtained in violation of your rights. There are also certain “dismissal” motions that are included, where appropriate. There will usually be hearings on the suppression motions. These pre-trial hearings will be discussed later in the book.
Another thing your lawyer must do to prepare your case for trial is to investigate. If you can afford it, the services of a private investigator are essential to your lawyer as early in the case as possible, so s/he can locate and speak to witnesses while their memories are fresh. Sometimes an investigation can’t start until the D.A. responds to your lawyer’s motions and gives her police reports. The D.A. often keeps information from the defense as long as possible. Police reports may be turned over with names and addresses of witnesses deleted, to protect them. Judges often don’t make the D.A. disclose that information until trial. We call this “trial by ambush”.
It’s a bad idea for you or your loved ones to do your own investigating. Sometimes witnesses have Orders of Protection against you, and if you talk to them, you could be charged with “witness tampering” and be put back in jail. If the complainant tells you s/he wants to drop charges, have her/him contact your lawyer before contacting the D.A., so s/he can get a statement from the complainant before the D.A. can talk her/him out of dropping the charges.
Your case will be adjourned, usually about three weeks at a time, until it’s ready for trial or you take a plea. Because of the delays, some defendants take pleas just to avoid having to come back to court so many times. This happens more often in Criminal Court on misdemeanor cases.
TO PLEAD OR NOT TO PLEAD
Many people think plea-bargaining is a dirty word, but it is nothing more than negotiating a disposition of a case. Sometimes a plea-bargain is appropriate. Whether you take a plea or go to trial is an important decision that your lawyer should not make for you, but her opinion is important. Once your lawyer knows enough about the evidence against you, s/he can evaluate the chances of winning your trial. S/he will balance your odds of winning, against the amount of time you could get if you lose trial, and the sentence being offered in the plea-bargain. Once you plead guilty, you usually can’t get your plea back if you change your mind later, so make sure it’s what you want to do.
The decision is difficult, especially if you’re innocent and the evidence against you looks strong. There are provisions in the law for a person to plead guilty without admitting guilt. This is called a SERRANO or ALFORD plea (named after the cases that allow this kind of plea). Most judges don’t like SERRANO/ALFORD pleas.
It’s hard to admit guilt if you’re innocent, but some defendants do it because their chances of winning are so slim they’d rather take the sure thing (usually probation or low jail time) than risk a long jail sentence after losing trial. If you go to trial and lose, you usually get more time than that offered in the plea-bargain. It’s like getting extra punishment for putting the state through the trouble and expense of the trial. No matter how experienced or skillful your lawyer is, there’s no guarantee of winning a trial, so some defendants take pleas to avoid the uncertainty of trial. Defendants who are in jail awaiting trial are more likely to take pleas than defendants who are out of jail.
Trial is an uphill battle for the defense. The D.A. has better resources, like detective investigators (D.I.s) and the police, to investigate and get witnesses to cooperate. Even if your lawyer has spoken to your witnesses, it’s hard to get them to cooperate – most people don’t want to get involved.
The D.A. also has public opinion on her side. Even though the law says that you’re presumed to be innocent, and that the burden of proving your guilt is on the D.A., jurors do not always understand or follow the law. Unfortunately, nowadays, especially is New York City, jurors are exposed to crime on the streets, either personally or through the media, and tend to presume you’re guilty and expect the defense to prove your innocence, especially if you’re minority or poor. Sorry to paint such a grim picture, but that’s where things are at, and this book discusses realities, not ideals.
There are several types of hearings, called pre-trial hearings, or suppression hearings, that may occur before a trial jury is selected. Not every case has pre-trial hearings. It depends on the evidence against you. These hearings are named after landmark cases. After the hearing, the judge decides whether or not to let the D.A. use certain evidence against you at trial. If the evidence in question is the only evidence against you, your case may be dismissed if you win the hearing.
A HUNTLEY hearing is to suppress statements allegedly made by you to a law enforcement officer (including police, D.A., or their agent), on the grounds that you weren’t advised of your constitutional right to remain silent or were forced to make the statement, either by threats or brutality. Clients sometimes think that if the police didn’t “read them their rights” their case can be dismissed. But the consequence of not having been read your rights is that if you made a confession, you may be able to get it suppressed. It’s unlikely that the police will admit that they failed to read you your rights, or that they threatened or beat you. At the HUNTLEY hearing they’ll probably testify that they read you your (MIRANDA) rights, and deny that they used any force. The judge usually believes the police when their version of what happened differs from the defendants’.
A DUNAWAY hearing is also a hearing to suppress statements, on the grounds that the police did not have probable cause (any legal reason) to arrest you.
A WADE hearing is to suppress identification on the grounds that the pre-trial identification procedure was suggestive, and that the witness(es) would not have otherwise been able to identify you.
A MAPP hearing is to suppress physical evidence seized from you (usually a weapon, drugs, or the proceeds of a crime), on the grounds that the police had no legal right to stop or search you, your car or your home, or that they found the evidence by violating your constitutional rights.
A SANDOVAL hearing is to prohibit the D.A. from using your criminal record to impeach your credibility on cross-examination, if you testify at trial. When a witness testifies at trial, opposing counsel can use the witness’ criminal record on cross-examination to show that the witness isn’t worthy of belief. If the witness is the defendant, the court must balance her/his constitutional right to testify against the D.A.’s right to this cross-examination technique. The problem is that jurors believe that if you’ve committed crimes in the past, you probably committed this one too, and that’s not one of the factors a jury is supposed to consider as evidence. The defense attorney tries to limit this through the SANDOVAL hearing. If you don’t testify at trial, the D.A. can’t introduce your criminal record, except under specific conditions that are too technical to discuss here.
After pretrial hearings are finished, the trial begins. At trial a judge or jury listens to evidence and decides if you are guilty or not.
You’re entitled to a jury trial in all felony cases, and in many misdemeanor cases. Even if you’re entitled to a jury trial, you may waive that right and be tried by a judge. This decision depends on the specifics of your case and which judge is in the trial part.
You must dress appropriately when you’re on trial. Dress like you would for a church function, not like you would for a date. You want to look neat, but not flashy. Don’t wear a lot of gold jewelry, especially if you’re charged with a drug offense. Tone down your hair style, if necessary. You need to look as main-stream as possible. You want to create the right impression on the judge or jury.
If you’re out of jail and don’t appear for trial, in addition to getting a bench warrant and forfeiting your bail, your case may be tried without you. Most judges warn defendants of that possibility (Parker warnings). If you’ve been warned, and don’t appear, you can be tried, convicted and sentenced in your absence. The likelihood of conviction increases if you’re not present at your trial. When the police pick you up on the bench warrant, you’ll be sent to jail to serve your sentence. You may also, practically speaking, waive your right to appeal, if you abscond.
If you’re having a jury trial, the first part is to select the jury. This is called voir dire. Prospective jurors are brought to the courtroom from the Central Jury Panel. The judge explains some general principles of law to them. From that panel, 12 or more at a time, (six if it’s a misdemeanor trial), are called into the jury box to be questioned by the judge, the D.A., and the defense attorney.
The purpose of the voir dire is to give the D.A. and defense attorney a chance to find out whether the prospective jurors can be fair. Your lawyer can also use the process to educate the prospective jurors about your case.
After each round, the attorneys usually leave the courtroom with the judge and court reporter (who records the proceedings), and challenge the jurors they don’t want. It’s more a process of elimination than one of selection. Each side has a specific number of peremptory challenges depending on the criminal charges. Peremptory challenges are those that do not require the attorney to give a reason for the challenge. If either side can show that a potential juror can’t be fair, that juror can be challenged for cause. Challenges for cause are unlimited.
A felony trial jury consists of 12 jurors and usually two alternates. If a juror can’t continue to serve (because of illness or the like), an alternate is substituted.
After the jury is selected, the judge usually explains their duties and the order of the trial. S/he also warns them not to discuss the case with anyone until it’s over.
The D.A. then makes an opening statement. This tells the jury what s/he intends to prove to them during the trial. S/he usually describes this as a table of contents. The defense attorney may then make an opening statement, but is not required to, because the defense is not obligated to prove anything during the trial. Whether or not your lawyer makes an opening statement is a matter of strategy that s/he will decide based on the nature of your defense.
After opening statements, the D.A. presents evidence. Evidence is testimony from witnesses, and exhibits (weapons, contraband, documents, etc.).
When a witness testifies for the D.A., s/he questions her/him first. This is direct examination. When the defense attorney questions that witness, it’s cross-examination.
When the D.A. finishes presenting her case, your lawyer may present a defense case, but is not required to, because the defense doesn’t have to prove anything. The jury is supposed to decide, based on what the D.A. presents, if they’re convinced of your guilt “beyond a reasonable doubt”.
A major decision is whether you’ll testify at trial. Even though the jury is told not to hold it against you if you don’t testify, they often do hold it against you. The decision is harder if the D.A. will be able to cross-examine you about your criminal record.
After the defense rests, the D.A. may present evidence to rebut something the defense has raised in its case. If this happens, the defense may present evidence to rebut that. When both sides finish presenting their evidence, they rest. The defense “sums up” first and the D.A. “sums up” last (because s/he has the burden of proof). Summations are the lawyers’ comments about the evidence to show why the jury should reach a certain verdict.
After summations, the judge explains the law to the jury and sends them out to deliberate until they reach a verdict. They can’t discuss the case with anyone who is not on the jury. A verdict must be unanimous. If the jurors can’t reach a verdict by the end of the day, they’re often sequestered for the night (sent to a hotel together). If they indicate that they cannot reach a unanimous verdict no matter how long they deliberate, (that they’re deadlocked), the judge may declare a mistrial based on the hung jury. If that happens, you may be tried again. If you’re acquitted (found not guilty), you can’t be charged or tried again for the same case.
If you’re convicted after trial or take a plea, the case is adjourned for the probation department to prepare a report to aid the judge in sentencing. It’s important to make a good impression on the person who interviews you, because her recommendation carries a lot of weight. Even if your sentence was negotiated by plea-bargain, if the probation report is bad the judge may decide not to keep her promise to you and may give you the option of taking more jail time or withdrawing your plea.
Your probation report is also attached to your file and taken into consideration when you become eligible for parole. If you’re eligible for “youthful offender” treatment, the probation report is sometimes the deciding factor.
If you took a plea and are out of jail awaiting sentence and don’t keep your appointment for the probation interview, or get convicted of another crime, or don’t appear in court on the sentence date, the judge can give you a harsher sentence, without giving you the option of withdrawing your plea. If you’ve been in jail awaiting trial, you’ll get credit for the time you’ve been in, toward your sentence.
When the Department of Probation prepares its report, they usually contact the D.A. for input, but not the defense attorney. If you’re convicted after trial, your lawyer may prepare a “pre-sentence report” to balance things out.
If you were under 19 when you committed the crime, and you’re convicted (plead guilty or are found guilty after trial), the judge might treat you as a “youthful offender” (Y.O.) – the conviction is vacated and the case sealed.
You’re entitled to “youthful offender” treatment on your first misdemeanor conviction. It’s discretionary for certain first time felony convictions.
“Youthful offender” doesn’t mean you won’t be punished for the crime (with jail or probation), but the punishment is often less severe and you won’t have a criminal record. This is meant to give a young person a chance to straighten out without the stigma of a criminal record.
If you received Y.O. on a prior felony case, it’s as if you were not convicted of that felony. If you’re charged with another felony you will not be considered a “predicate felon”.
If you got Y.O. on a prior case, it won’t save you from extra jail time for violation of the probation or parole from that case, if you’re convicted of something else after that.
If you’re convicted after trial, your lawyer must file a “notice of appeal” for you within 30 days of the sentence date to insure your right to appeal.
If you’re indigent, a lawyer will be assigned to do your appeal. Appeals take a long time to be heard. Part of the delay, especially if you’re indigent, is the length of time it takes the appeals lawyer to get the minutes of the trial. Assigned lawyers usually handle a lot of cases, so it usually takes longer for them to get to your case. It sometimes takes years for an appeal to be heard. If you can afford to pay privately for the appeal and the minutes of the trial you can speed up the process. Sometimes you can get bail pending appeal, but most defendants wait in jail until their appeals are heard.
Generally speaking, the D.A.’s office can seek forfeiture of the instrumentality or proceeds of certain crimes. They can even attach this property before you’re convicted if they can show that you’ll probably be convicted.
The Police Department can also seek similar forfeitures. If you’re arrested for a drug related offense and the police take your vehicle or cash they think is related to the drug case, you’ll have a hard time getting it back. You start the process by making a demand for the return of the property to the police property clerk’s office. You may need a certificate of disposition, indicating what happened to your case; a release from the D.A.’s office, indicating that they do not need the property for evidence; the voucher you received from the police when they took the property; and two pieces of ID. Even if your criminal case is resolved in your favor, you may have to sue in Civil Court to get your property back. You can forget about getting it back if you’re convicted.
In Federal cases, forfeiture has been a frequent tool of the government. They will take your car, boat, airplane and/or real estate if they can. The State courts have just begun to use this powerful tool against defendants.
GETTING YOUR PROPERTY BACK
If the police take property from you when you’re arrested, they will indicate on the voucher whether they took it for evidence, for safekeeping, or for forfeiture.
If they have taken it for safekeeping, it’s not hard to get it back when you’re released from custody. If you will probably remain in custody for a long time, you can arrange for someone else to get the property for you. S/he will need proof that you’re incarcerated, a notarized letter authorizing her/him to act on your behalf, a picture ID, and the receipt for the property.
It’s best to call the property clerk’s office before going there to make sure you have all the correct documents. If the property was held for evidence, you will also need a release from the D.A.’s office indicating that they do not need the property as evidence.
Federal cases are generally more complicated than State cases. They’re usually better prepared and involve more serious charges. They’re more likely to include numerous defendants in one case. The Federal government has powerful resources so there are often wiretaps, audio-tapes and video-tapes to deal with. There are different rules of evidence and stricter sentences which are governed by the Federal Sentencing Guidelines.
Since Federal cases are usually very strong and involve more serious charges, it’s harder to get out on bail on a Federal case. It’s usually up to the defense to prepare a “bail package” to present to the Court and prosecutor for approval. If a bail package is offered, there’s often a “source hearing” ordered to make sure the cash and/or property being offered is clean (no drug money involved).
The prosecutor in a Federal case is called the United States Attorney. Instead of dealing with the police, you’re dealing with FBI agents, DEA agents, IRS agents, Secret Service agents, etc. If you can’t afford a private lawyer for a Federal case, you will be assigned a lawyer from the Federal Defender’s office (a branch of the Legal Aid Society), or a CJA Attorney (like 18-b).
If your lawyer is ordered to be ready for trial on a certain date on a Federal case, s/he must give that case priority. A Federal judge will not delay a trial because your lawyer has pending cases in State court. Federal Court is the big time. Make sure your lawyer is thoroughly familiar with Federal practice before retaining her on a Federal case. Fees for Federal criminal cases are generally higher than for State criminal cases.