Anyone confronting the bewildering and, to many,
the intimidating and nerve shattering complexities of the New York State
criminal justice system for the first time in his or her life, will find
Joyce David's handbook outlining the ABC's of the system an invaluable
tool in dealing with them.
A highly-respected attorney with a wealth of
first-hand experience in all aspects of criminal law, Ms. David's
thorough, step-by-step description of what a criminal case is all about,
written in language readily understood by the average layman, unschooled
in legal procedures and terminology, will do much to ease the pain of
that first encounter with the law.
Ms. David, expertly and concisely, spells out
just what he or she may expect at every stage of the case, explaining
just what will happen and why.
As she points out correctly in her own
introduction, those exposed for the first time to the criminal justice
system often feel as though they are in a foreign country, with strange
new rules, procedures and language. WHAT YOU SHOULD KNOW IF YOU'RE
ACCUSED OF A CRIME provides the anxious "tourist" with a
thoroughly professional and knowledgeable guidebook.
* Milton Mollen
Presiding Justice, Appellate Division
Second Judicial Department (1986)
* After Judge Mollen retired from the bench in
1990, he was appointed Deputy Mayor for Criminal Justice for the City of
New York. He was subsequently appointed to head the “MOLLEN
COMMISSION”, which investigated corruption in the New York City
Police Department.
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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) 875-2000.
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.
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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.
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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.
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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.
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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).
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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THE ARREST
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.
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BOOKING
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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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SILENT INDICTMENT
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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