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ACCUSED AND ARRESTED:
HOW TO DEAL WITH THE CRIMINAL JUSTICE LEGAL SYSTEM

The Ten Most Frequently Asked Questions

If you've just been arrested, you need to read this article. This article talks very plainly about the legal system and is designed to serve as first aid. It can help prevent unnecessary time in jail or prison, can save you lots of money, and can prevent untold hours of fear and worry by you and your family.

How is this possible? There are some basic facts you need to know about the criminal justice legal system and how it operates to survive in it and to work successfully with your lawyer. It's really simple: if you understand the criminal justice system and can work effectively with your lawyer, you can probably get a much better result in your case. And you can avoid the unnecessary costs in time, money, and worry that come along with misunderstandings.

This article is designed to answer the TEN most frequently asked questions about the criminal justice legal system in Columbia County, New York, and environs, and to provide information about how you can most effectively work with your lawyer. Obviously, because every case is unique, and because you need to consult with your lawyer to make important strategic decisions, this article should be used only for general reference.

1. Who can I talk to about my case while I'm in jail?

   No one except your lawyer. You have an absolute right to remain silent, and you ought to use that right. Do not talk about your case to anyone, including other inmates, corrections officers, policemen, visitors, your spouse, or family members. Nothing you say to these people at this point can do anything to help get you out of jail or to assist you to be found not guilty. And frequently, conversations with other inmates end up being testified about at trial. In these circumstances, the safest, wisest thing is this: do not talk about your case with anyone except your lawyer.

   Also, do not try to negotiate with policemen or corrections officers while you are under arrest or in jail. The police are not in a position after you're arrested to be of assistance in your case. The only one who can really assist you, once you've been arrested, is your lawyer. If there need to be negotiations with law enforcement authorities, let your lawyer be the only one to handle that.

2. What if I need medical treatment while I'm in jail?

   On admission to the jail, it is extremely important that you accurately tell the corrections department your medical condition. They can't treat you if you don't explain what your condition is. Medical treatment needs that arise after admission should also be brought to the attention of corrections officers immediately. If you are going to need medical treatment because of drug and/or alcohol withdrawal, for your own safety, you need to let corrections officers know this. Getting treatment is NOT going to hurt your case.

3. How do I get my bail reduced?

   Immediately after your arrest, you are brought before a judge. The judge at that time has to consider how to assure that you will appear for trial on the charge. The judge has three categories to choose from: release on your own recognizance, bail, or commitment to the custody of the sheriff (remand without bail). If the judge believes, based on a number of factors, that you'll show up for trial, you may be released on your own recognizance. If the judge believes that your posting money or a bond will assure your appearance for trial, bail can be set. If the judge believes that no amount of bail will guarantee your showing up for trial, you can be remanded with no bail.

   The initial bail decision will be influenced by information you give about yourself, your family, your employment, your prior criminal history, and other factors, and by recommendations made by the prosecution based on their information. In some places, you will be asked for this information by Probation Officers, Pretrial Release Officers, and others. In other places, you will not be interviewed. Regardless, you should provide information in response to questions from these people who are going to make a bail recommendation AND you should NOT talk about the charges against you.

   If you're in jail with no bail or the bail is one that you cannot make, you always have the right to ask the Court to release you on recognizance or to lower your bail. To decide whether a bail reduction application should be made, it's important for you first to determine how much money and/or property you actually have to post as bail or how large a bail bond you can purchase. If, for example, your bail is now $25,000 cash or bail bond, and you think you can convince a court to reduce your bail to $15,000, but you can't make that reduced bail, seeking a reduction of your bail will probably not result in your release and might be a waste of time.

   It's really important that you discuss with your lawyer whether it makes sense for you to seek a bail reduction. The specifics of your case will determine whether you'll eventually make bail or whether no bail reduction application should be pursued.

4. Do I want a preliminary hearing?

   If you were arrested on a felony complaint and are in jail on that charge because you have no bail or because you have not yet made bail, you have a right to a preliminary hearing. You don't have a right to a preliminary hearing if you are out on bail, were released on recognizance, are already indicted, or a parole revocation warrant has been filed against you.

   The purpose of a preliminary hearing is to determine if there is enough evidence to hold you for action by the grand jury. This doesn't require proof beyond a reasonable doubt. Rather, proof that "there is reasonable cause to believe that the defendant committed a felony" is enough.

   In a preliminary hearing, the prosecution presents evidence and witnesses to show the judge that there is reasonable cause to believe that you committed a felony. If the prosecution's proof shows this, the court orders that your remain confined and that the case go to the grand jury. If the prosecution's proof fails to show this, the judge orders your release. Your lawyer has the right to cross-examine all the witnesses in the preliminary hearing.

   The preliminary hearing can be a valuable opportunity to learn about the case against you, to hear some witnesses against you, and to have witnesses against you commit themselves under oath to their testimony. Later, at trial, you'll be able to use this testimony to cross-examine these witnesses. And the hearing might be an opportunity to expose that there is no real case against you.

   If you are not furnished a timely preliminary hearing, a court can direct that you be released.

   Guess what! If you have a preliminary hearing, the prosecution will almost definitely offer you a worse plea bargain than without a preliminary hearing. And even if you win the preliminary hearing and are released, or you're denied a timely preliminary hearing and are released, the prosecution can put the case in the grand jury anyway and seek to have you indicted.

   It's really important that you discuss with your lawyer whether you want to have a preliminary hearing or whether you want to waive a preliminary hearing. The specifics of your case will determine which of these approaches makes the most tactical sense.

5. Do I want to testify in the grand jury?

   If you are arrested on a felony complaint or are held for action by the grand jury, you have the right to testify before the Grand Jury. If you're confined following your arrest, you are required to receive notice of this right. If you're not confined, you can testify if you properly request the opportunity to do so.

   To exercise your right to testify in the Grand Jury, you must first sign a waiver of immunity. This means that whatever testimony you give in the Grand Jury may later be used against you at trial. The main drawbacks to testifying in the Grand Jury are that you tell the prosecution what your defense is by telling your version of what happened, by testifying under oath you are then locked into that version of the events, and by testifying you subject yourself to cross-examination by prosecutors and to questioning by grand jurors. In addition, although your attorney can be present to advise you in the grand jury, your lawyer can't question you. The main reason for testifying in the Grand Jury is that if you have a rock solid defense-- for example, you can prove you were somewhere else when the crime was committed-- the Grand Jury may decide not to vote an indictment against you. That will end the case and set you free. Unfortunately, because Grand Juries find it extremely easy to indict, and do so in virtually every case, it usually makes no sense for you to testify in the Grand Jury if your testimony is simply that you didn't do the crime, or to provide your own version of the event at this stage.

   It's really important that you discuss with your lawyer whether you want to testify in the grand jury. The specifics of your case will determine what approach makes the most tactical sense.

6. How do I decide whether to go to trial?

   For your legal representation to be the most effective, you and your lawyer must determine as early as possible in your case whether the prosecution can prove that you committed the crime. There are three possibilities in this area:

   1. If you committed a crime and the prosecution can prove your guilt, your lawyer needs to recognize these facts and needs to negotiate a plea agreement in your behalf. If the prosecution can prove your guilt, it makes absolutely no sense to take the case to trial. You will certainly be found guilty, and you will receive a harsher sentence than if you pleaded guilty.

   2. If the prosecution cannot prove your guilt, whether or not you committed a crime, your lawyer needs to recognize these facts and can take the case to trial.

   3. The biggest, most common problem arises when you and your lawyer don't know whether the prosecution can prove its case. In this case, it is essential that you explain to your lawyer the exact, complete truth about what occurred. Of course, whatever you tell your lawyer is entirely confidential: your lawyer can't tell it to anybody else and won't.

   Telling your lawyer the truth will begin to make it possible for your lawyer to figure out whether the prosecution can prove your guilt at trial. Unfortunately, if you don't tell your lawyer the exact, complete truth, your lawyer has no idea about whether to make a deal or to prepare for trial. Uncertainty about whether you're pleading or going to trial, especially if that uncertainty lasts for a long time, may result in a larger sentence for you: if you figure out after a lot of procedure happens in your case that you will be convicted at trial, and you then decide to make a deal, you may have missed the best plea bargain for your case. In fact, you may end up serving additional time because you didn't take an early, best offer.

   Remember this: the decision on whether to go to trial belongs to you. Not your lawyer. Your lawyer's role is to provide information and help you decide this important question.

7. How can I get the best plea bargain?

   Your lawyer has to know how plea agreements in a particular county are handled to get you the best offer. If your lawyer has not practiced in the county where you are charged, or hasn't made good plea agreements in that county, your lawyer may not know how to get the best deal for you and may end up holding out for an offer that will not arrive. This may cost you unnecessary time in jail or prison.

   In some counties, the best deal comes shortly after arrest at the very beginning of the case. The prosecution makes an offer based on what it then knows about the case and the desire to end the case without expending resources. In counties that operate this way, rejection of the initial offer means that the next offer will certainly be for more time, and that every additional step the case takes-- preliminary hearing, indictment, discovery, motions, decision on the motions, hearings, jury selection-- will increase the offer, if you're charged with a felony, in 4 or 6 month increments.

   In some counties, the best deal comes from negotiations with the judge and not the prosecutor. In these counties, the judge in the arraignment part will offer the best deal for a swift conclusion of the case. This deal will sometimes be offered despite the prosecution's objections to it. Whether or not it will be offered again at a later date depends on the trial judge's philosophy.

   In a some counties, the best deal comes only on the eve of trial. In these counties, despite what has occurred before in terms of plea bargaining, the trial judge will offer a deal to clear the trial calendar.

   Obviously, the way to handle each of these three possibilities is different. And mistaking one for another can be disastrous.

   The point is that your lawyer should know how plea bargaining is handled in the county where you are charged, and you should make sure, before you attempt to negotiate or turn down any offer, that you understand what the pattern of plea bargaining is in the county. Misjudgments about whether a better offer is coming in the future can cost you additional incarceration.

8. What do I do about plea bargaining if I'm eligible for shock incarceration?

   If you're eligible for shock incarceration, and if the prosecution can prove the case against you, the best thing is IMMEDIATELY to take the first plea bargain offer you receive that is for a shock eligible sentence. Plead guilty at the earliest opportunity, ask for the earliest sentencing date, and get classified in prison and into a shock program as quickly as you can. Once you've done the six month's in a shock program, you can be paroled.

   Put simply, if you're going to shock, all the jail time and prison time you put in before you get into the shock program is wasted. For example, if you spend 10 months in jail trying to negotiate your sentence down from 2 1/3 to 7 years to 1 1/3 to 4 years before you accept a shock eligible sentence, your negotiating time of ten months, and the reduced sentence, if you get it, do not get you to the street faster than pleading to the higher sentence and speeding through shock to the streets. The only difference between the two sentences will occur if you don't get into shock, if you don't finish shock successfully, or if later on, you face parole revocation. If your goal is to get through your incarceration as quickly as possible, these considerations don't really matter.

9. How can I help my lawyer prepare for trial?

   If your case is going to trial, you've already decided that the prosecution cannot prove that you are guilty. What your lawyer needs from you now, if the case is to be successfully tried, is the complete, exact truth about what you know about the case, and your complete cooperation and assistance in locating people who can be witnesses in your behalf and in figuring out who other witnesses might be.

   This means that if you know the witnesses, you might call them and arrange for them to talk with your lawyer. This also means that you will assist your lawyer in figuring out how best and most efficiently to use investigators, experts and other people who are going to be preparing the defense case for trial.

   The key here is to make yourself available to your lawyer and to streamline the process of gathering information as much as possible. Every wild goose chase undertaken by investigators and others, every time the defense flounders trying to locate a witness wastes precious resources that could be used elsewhere by you.

10. What do I do if I'm unhappy with my lawyer?

    It's extremely important if you are unhappy with your lawyer, that you telephone or write your lawyer to arrange a discussion about whatever the issues are. In most instances, unhappiness with your lawyer can be easily cleared up in a frank discussion in which all of the issues are communicated and discussed.

    Because disagreements between lawyer and client almost never result in a benefit to the client, if the disagreement can't be quickly cleared up, you have the option of hiring another lawyer, or if your lawyer is appointed, you can request that your lawyer assist you in getting another lawyer.

    The matter can also be brought to the attention of the Court or to the Committee on Professional Conduct, but if your goal is to have a successful defense, getting into a skirmish with your appointed counsel is quite unlikely to produce a favorable result. It's a mistake to think, if your case is going badly, that a fight with appointed counsel somehow will make your situation better on appeal. Frankly speaking, it won't. If you just can't resolve the matter by talking with your lawyer, you may have to bring it to the Court's attention. Before you do that, know that the Court will absolutely require you to explain the specific reasons for your dissatisfaction.

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