FAQs For Criminal Law

While the lawyers of Flader & Hirji, LLP make these answers to Frequently Asked Questions (FAQs) available to you, please note that laws change frequently, which could change the answers to these FAQs. There is no substitute to getting a consultation with an attorney to discuss your specific matter.

** Extremely Important Rule **

F&H A. 1. There are ten basic phases in a criminal trial. These are as follows:

Phase one is the investigation phase during which police officers or their investigators will gather information from you, your family, your neighbors, your friends, your employers, and other persons you know. If you believe that you are in any way the target or potential target of their investigation, you should immediately hire an attorney. This is the most dangerous time period of the criminal process as the police do not have to give you the Miranda warning about your right to remain silent and to have an attorney present until they reach a point when they are going to arrest you. Therefore, you are not protected by the Miranda rights at this time and you may believe that if you give your explanation to the police, you will not be prosecuted. If you believe that you are the target, do not be misled into believing that things will be better for you if you cooperate without hiring a lawyer. You should definitely not speak to anyone without first hiring a lawyer and then following that lawyer’s advice.

Phase two is where the police arrest and book the suspect. At that time, the police are required to give the accused his or her Miranda rights, which include the right to an attorney and the right to remain silent. This does not mean that they will indeed actually give you the warning. If they do give you the warning, and you waive your right to be silent and continue to speak to them, anything said by you can and will be used against you in a court of law. You should carefully heed those warnings, immediately hire a lawyer and not say a word without the lawyer present. Many times you will be told by the police, after they read you your rights, that things may turn out better for you if you cooperate and answer their questions. That is rarely the truth. You are much better off not saying a single word until you have hired a lawyer and are following that lawyer’s advice. This is also the time when you will need to hire a bail bondsman to obtain the bail bond necessary to get you out of jail, assuming that you are provided bail by the court for the charges filed against you. Your lawyer can help you obtain a bail bond and seek to have your bail reduced.

Phase three is the arraignment where the charges against you are read in court and you have the option of pleading “guilty” or “not guilty” to those charges. This is usually the time period during which the prosecution may offer a plea bargain to you in order to expedite the matter.

Phase four is discovery where all parties will continue to investigate the matter and to obtain more evidence in favor of their side of the case. Additional witnesses will be interviewed by both sides. It is important for your attorney to engage private investigators. Typical discovery includes extensive review of police reports, medical records, probation reports, photographs, diagrams, recordings of witness statements, viewing of physical evidence, and expert analysis such as DNA tests and criminology reports.

Phase five is the preliminary hearing (only applicable to felonies) where the judge decides whether the police have sufficient probable cause to hold you to answer to the charges. The prosecution will call the witnesses necessary to meet that burden of proof. You or your lawyer will have the right to cross-examine the witnesses called by the prosecution. This is also the phase of the proceedings where your attorney can file motions to suppress evidence that was not legally obtained by the police.

Phase six is the pre-trial motion practice where your lawyer will file the motions necessary to protect your rights during the trial.

Phase seven is the actual trial where a jury is selected by the prosecutors and your defense counsel and jury instructions are agreed upon, and the trial commences. Once both sides have rested the case, the jury deliberates and provides its decision on the case. The decision of the jury may be accepted, modified or disregarded by the judge, depending on whether the judge believes that the evidence supports the jury’s decision.

Phase eight is the post-trial motions including a motion for new trial, etc. Hopefully, you will not need to file such a motion as it would presume that the jury found you guilty of some or all of the charges.

Phase nine is the sentencing phase. A probation report is normally generated which usually includes a recommendation to the judge on the appropriate sentence. This recommendation is not binding on the court but is considered important. It is also important for your attorney to work closely with the persons preparing the probation report and with the court in obtaining for you the lowest possible sentence for the crimes you have been convicted of.

Phase ten is the post conviction phase where appeals can be filed, pardons obtained, records expunged, etc. An attorney who cares about his or her clients knows never to give up and to continue to fight to protect the client’s rights in all venues of the criminal process.

Q2. WHAT CRIMES ARE FELONIES?