Questions Criminal Defense
Lawyers Are Frequently Asked
is a search warrant?
is needed to obtain a search warrant?
conduct a search, must the police always have a warrant?
4) If a
police officer or agent says you are being investigated and that officials
want to talk with you at the police station or their office so as to
eliminate you as a suspect, what should you do?
5) If a
police officer or federal agent arrests you and wants you to give a
statement, what should you do?
you are ordered to go to the court or police station for “booking,” what
does this mean?
does bail work?
is an Arraignment?
prosecutes white collar crimes?
10) What determines
whether a prosecutor will pursue a case?
11) What are the
federal guidelines on sentencing?
12) What is
13) What is a plea
1) What is a search
search warrant is an Order signed by a judge that permits the police or
government agents to enter property to look for items specified in the
warrant. The warrant is based upon probable cause of criminal
activity. The place to be searched & the items to be seized must be
described with particularity. In general, authorities
must obtain search warrants before conducting a search of private property.
Searches conducted without warrants are usually presumed to be
'unreasonable' and may be challenged in court.
2) What is needed to
obtain a search warrant?
authorities must convince a judge there is probable cause for a
search based upon the likelihood a crime has taken place or that items
connected with a crime will probably be found on the
property. Information corroborating a search usually comes from
observations of the police –or, other governmental authority– or, from a
3) To conduct a
search, must the police always have a warrant?
There are situations in which
the police or authorities do not need to have a search warrant, such as:
- Search after or incident to an arrest
- Searches based upon public
- Searches to prevent
destruction of evidence
- Searches based upon hot
If a police officer or agent says you are being investigated & that
they want to talk with you at the police station or their office to
eliminate you as a suspect, what should you do?
should immediately contact an experienced criminal defense lawyer. Police
or federal authorities are not required by law to tell you the truth
during an investigation.
may say they have evidence against you they do not have. The intent
may be to arrest you, trap you into making statements, or, divulge
information that could incriminate you. Your attorney can inquire to
find out about the investigation & advise you on how to protect
yourself. Many people assume that because they are innocent there
will be no adverse consequences. However, innocent people do get
arrested & some convicted of crimes they did not commit.
5) If a police
officer or federal agent arrests you and wants you to give a statement,
what should you do?
might think it better to explain your innocence; however, what you
should do is ask to speak to a lawyer.
you make in your favor may be left out of the report. Other
statements may be taken out of context, twisted or embellished and
presented to show you committed a crime. The authorities may threaten
you, play on your sympathies, try to make you feel guilty & use any
number of tactics to get you to say what they want to hear.
you say you want to speak to a lawyer, the authorities no
longer have the right to question you.
6) If you are ordered
to go to the court or a police station for “booking,” what does this mean?
means you will be photographed and fingerprinted and your information
entered into one or more criminal justice system databases.
Generally, you will go into a holding cell after booking until you appear
in court and/or bond is arranged.
7) How does bail
is a pledge posted for your release from jail & is generally money or
property given as an assurance you will appear in court as required.
bail amount set is based upon the circumstances, including the seriousness
of the alleged crime, a defendant's ties to the community & past
history, if any, with the criminal justice system. You may pay the
bail amount yourself, pay a bail bondsman a fixed percentage of the amount
of bail, or, have a family or friend post bail for you. If you, a
friend or family member posts bond, once your case is over, the cash is
returned or bond on property (a lien on property posted as collateral) is
bailbondsman is an agent for a commercial surety – that is, an
insurance company. The percentage paid to a bondsman is a 'premium'
(10% in state court matters & 15% in federal cases), for the cost of
the insurance & the bondsman's fee. It is not returned at the end
of the case.
bondsman will generally also seek collateral to further secure his
8) What is an
Arraignment is a court hearing where a defendant appears before the Court
to be informed of his rights & the nature of the formal charges filed
against him. At that time, the Defendnat is also called upon to plead
guilty or not guilty. Most defendants plead not guilty at the
9) Who prosecutes
white collar crime cases?
collar crimes are prosecuted by both state
& federal prosecutors.
white collar cases involve lengthy investigations often conducted in
more than one state, or, federal district. Sometimes such
investigations involve foreign law enforcement agencies as well. For
these reasons most white collar cases are investigated & prosecuted by
the federal government.
agencies such as the IRS, FBI, DEA, Department of Homeland Security (both
Customs & Immigration), Secret Service, or, the Bureau of Alcohol,
Tobacco, Firearms & Explosives investigate these kinds of cases.
is handled by attorneys from the Department of Justice or the local United
States Attorney's Office.
What determines whether a prosecutor will pursue a case?
A prosecutor will usually pursue
a case based upon the following:
- Legal soundness of the
case; i.e. no obvious defects such as violations of constitutional
rights or destruction of vital evidence;
- Substantial evidence for
- Evaluation of whether trial
is appropriate or awhether an alternative disposition is appropriate.
What are the federal guidelines on sentencing?
United States Sentencing Guidelines were established in 1987 &
were mandatory until 2005 when the Supreme Court determined the Guidelines
are advisory only. That means judges do not have to
adhere to the guidelines; but, they must still consult and consider them.
What is restitution?
is monetary compensation given to a victim for costs and/or losses they
suffer as the result of the crime.
The federal Monetary Victims’ Restitution Act of 1996 provides for restitution
for losses to victims who suffer directly from a crime for which a
defendant is convicted. Restitution is ordered at the time of
What is a plea bargain?
plea bargain is an agreement arrived at between the defense and the
prosecution to avoid trial based upon a guilty plea –or, sometimes a
no contest plea– generally to to a lesser charge, with less serious
are not required to accept a plea bargain. If you refuse such
an offer, the prosecutor may withdraw the offer. An experienced
criminal defense attorney can help you evaluate a plea offer versus
the prospects of trying the case.
foregoing are some very, very basic questions criminal defense
practitioners are often asked. This list is just a beginning, to be
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