Criminal charges can have serious and long lasting consequences. Dennis Kucera is a former Deputy District Attorney (prosecutor) and has been an experienced trial attorney since 1983. He has handled all sorts of criminal cases, and will put his experience to work to fight for you.
The ins & outs of Crimes
A crime is some conduct which the law both prohibits and punishes. In order for something to be a crime, there must first be a law which prohibits some particular conduct, and the law will also describe the penalty if that conduct is done.
The definition of a crime has elements, or parts, which must all occur in order for the conduct to be a crime. The definitions of some crimes are very technical, so you need to see if the prosecution can prove all of the elements of the crime of which you’re charged. If you commit only 98% of a crime, you have not committed that crime! Some of the more common criminal offenses include:
- Driving under the Influence (DUI)
- Hit & Run
- Theft- shoplifting • Driving on a Suspended License
- Drugs- possession and being under the influence
- Domestic Violence
An Adversarial Process
Criminal cases are adversarial, meaning the police and prosecution are trying to convict you as you fight not to be convicted. If you are facing criminal charges, you want someone who will be looking out for you, making it essential to consult with a criminal law attorney. Dennis Kucera is available to provide a free consultation regarding your criminal matter, even if it is not filed yet. An attorney cannot disclose what you tell him in confidence, even if you do not retain the attorney for your defense.
Felony or Misdemeanor
A felony is a crime for which prison is a possibility. A misdemeanor is a crime that may carry a jail sentence, but not prison. Some crimes can be charged as a felony or as a misdemeanor, depending on the severity of the crime and in the discretion of the District Attorney.
Though the police make the arrest, it is the District Attorney who decides what the actual charges will be, meaning you may not know what you are dealing with until your case is filed in court. A probation violation hearing is a part of a criminal case in which the court is trying to impose a greater sentence for some violation of the terms of probation.
Bail and Own Recognizance
The person arrested can either be released on his promise to come to court, or he might be held in custody until he goes to court. If the person is held in custody, he will generally be allowed to post bail in order to get out of jail. Most bail companies charge about 10% of the bail amount as their fee for writing a bail bond. With bail set at $50,000.00, it would cost about $5,000.00 to purchase a bail bond. I can refer you to a bail bond company that will charge an 8% premium. The court has the power to reduce bail or even allow someone to be released without posting bail. If you are taken to court in custody, you will want to ask the court for a bail reduction or a release on your own recognizance when you first go to court. Once you purchase a bail bond, the fee is nonrefundable, even if charges are not filed. If the case is weak, or if there are significant issues in your defense, an attorney might be able to prevent the filing of charges by discussing the case with the District Attorney before the case is filed. This might save you thousands of dollars compared to purchasing a bail bond.
You should not discuss the incident. At all. With anyone. You might not know the significance of the facts you are discussing, so you might not realize the damage you can do. Even if you deny committing the crime, you might be admitting some fact or element of the crime that can still help the prosecution. Even an alibi can do serious damage to your defense if it has holes in it. There is downside but no upside, so why do it. There will be a time and a place for your defense. Sometimes the police may want to talk with you to conduct further investigation before charges are filed. This is a very delicate situation, and it is a good idea to consult with an attorney first.
Preserve Helpful Evidence
Immediately after an arrest, you should consider what might help your defense and try to preserve any helpful evidence before it is lost. Witness names, photographs of the scene, photographs of vehicles, and photographs of your own injuries can prove to be helpful, and these can be lost forever if not obtained promptly. Sales receipts, credit card charges and cell phone records can help to show where you were, or at what time something happened. Even a surveillance video from a business might show the incident or might prove you were somewhere else, but often these are only saved for a short time. You should also save all documents connected with your arrest, including a temporary driver license, the notice to come to court, and the receipt for property. Because alcohol metabolizes fairly quickly, testing for alcohol after you have been released would have to be done immediately if it is to have any value. But if you have been arrested on a charge of being under the influence of a drug, it is recommended that you arrange to have your blood or urine tested by your own lab as soon as possible after you have been released. Having your own test done within say, 48 hours of the arrest may prove to be helpful on a drug charge. And if it doesn’t help, you don’t have to use it. However, you are more protected if the test is done at the direction of your attorney, because an attorney’s investigation is privileged, which assures that the prosecution will not find out about it unless you choose to disclose it.
The First Appearance
The first appearance in court is called the arraignment, where the court tells you what you are charged with. The first appearance is not the trial, so don’t worry about having your defense ready on short notice. However, the arraignment is an important step, and if you are interested in having an attorney, it is a good idea to let the attorney handle the case from the beginning. Certain issues may be waived if not handled properly at the arraignment, and the attorney will want to have a hand in the scheduling of future dates. You will want to make arrangements ahead of time in order to ensure the availability of your attorney, and so that your attorney will be up to speed when he first goes to court.
You have the right to have a speedy trial. This means the court must set the trial within a certain time frame, unless you waive, or give up, the right to a speedy trial. The actual time frame will depend on whether the charge is a felony or a misdemeanor, and whether you were in custody at the time of the arraignment. You don’t want to insist on a speedy trial if you are not ready yourself. If you are being held in custody, there is much more urgency in preparing the case promptly, so that you do not stay in jail unnecessarily.
But Can They Prove it?
Two important concepts in criminal law are that the prosecution has the burden of proof, and the defendant has the right to remain silent. This means the prosecution has to bring sufficient evidence into court to convince all 12 jurors, beyond a reasonable doubt, that you are guilty, and they cannot call you to the stand to ask if you are guilty! Even when the defendant knows he is guilty, the prosecution might not have enough evidence. So, it is important to review the prosecution’s case to see if the prosecution has enough evidence to get a conviction. The arrest report is a summary of the case and it is usually available at the time of the first court appearance. However, the arrest report cannot be used as evidence! Even if the arrest report suggests the prosecution may have a case, we still want to check on the availability of the officers, civilian witnesses, and the evidence, particularly if the case is very old. Remember, the prosecution would have to bring the evidence and witnesses into court. You wouldn’t want to plead guilty if you didn’t have to, right? If the prosecution can’t prove the case, then you don’t have to plead guilty.
Can They Use the Evidence?
We must consider whether the prosecution will be allowed to use its evidence. The prosecution can be prevented from using evidence if it was obtained illegally. This can happen through an unreasonable search or through improper questioning. If the evidence is suppressed, or thrown out, then the prosecution cannot use it. The suppressed evidence can include not only the original evidence that was obtained illegally, but also the “fruits” of that evidence, which means any additional evidence which was uncovered as a result of the first illegally seized evidence. Even the observations of an officer can be suppressed if the officer had to illegally detain you in order to make those observations. A motion to suppress the evidence is a pre-trial motion, which means you get to see if the prosecution can use its evidence before you decide if you want to go all the way to trial. Suppressing the prosecution’s critical evidence can end the case without a trial. In a drunk driving case, the entire case would be thrown out if the initial detention of the vehicle was improper, because all of the evidence comes from the initial detention of the vehicle.
Eyewitness identification is considered strongly by a jury, yet it is the type of evidence that is the most unreliable. Psychologists have learned that eyewitness identification is often inaccurate due to cultural and bias and the stress of the situation. If your case depends on eyewitness identification by someone who does not know you, the prosecution really has a weak case. Did the police show only one photograph, or several. Even if several photos are shown, if your photo stands out in some respect from the others, that can taint the entire identification process, and can impeach the reliability of any further identifications (due to the taint from the first “suggestive” identification.) We can ask for an in person lineup, where six people are presented for the victim to identify. Your attorney can be present to document the lineup and make sure it is conducted fairly. This is important because sometimes at a lineup the victim may appear indecisive, yet the police may not accurately record this “indecision” when documenting the identification. If the victim cannot pick you out of a lineup, that will be powerful evidence for your defense. You may or may not want to do this. If the victim picks you out of six people, a jury will consider this as bolstering the identification. If you have not yet been identified in a photo or in person lineup, you can either ask for an in person lineup, or you can just allow the victim to identify you in court. This is a tactical decision. If the victim does not know you and only identifies you in court, rather than from a photo show up or a lineup, we have the argument that the victim has picked out the only obvious suspect, which is the person sitting at the counsel table next to the attorney. When eyewitness identification is crucial to the case, we may be able to have you sit in the courtroom, but not at the counsel table, and have someone else seated at the counsel table. In this case, the victim’s failure to identify you will be strong evidence for your defense. Experts in the field of eyewitness identification can explain the shortcomings and weaknesses of such identification for the jury. Attacking an eyewitness identification works best when coupled with a good alibi, which can prove you were somewhere else at the time of the crime. We will want to document the alibi carefully so that it is irrefutable. Sales receipts, people who saw you, surveillance videos and cell phone records (even if you did not make a phone call) may prove you were somewhere else. This type of evidence must be sought promptly after the incident to make sure none of it is lost.
Expert testimony carries a lot of weight with a jury, but it is not infallible. In fact, it is precisely because the jury is swayed by this evidence that we must review and challenge expert testimony to see if there are weaknesses in the expert’s conclusion or the methodology of the testing. Expert witnesses are available for the defense in any field where the prosecution might use an expert witness. Your expert can review the actual evidence and also the work of the prosecution’s expert, to see if the opinion is justified. Where there is physical evidence, such as drugs or a blood sample, we can have the sample split to be tested by your own expert. If the evidence cannot be split, your expert can examine the actual evidence held by the crime lab. Some experts may attempt to go beyond the field in which they are qualified, and try to give an opinion they are not really qualified to give. For example, is a regular police officer qualified to give an opinion as a traffic accident reconstruction expert, or a drug recognition expert? Not without the proper additional training. Yet these opinions may be presented in a trial if they are not properly challenged. There are many gray areas, such as handwriting analysis, which are based not so much on science but on expert opinion and experience. Experts who work for the crime lab are “scientists” in the sense that their opinions are based on science, but they nevertheless are part of the prosecution. Their statements may be technically correct, but it is important to test their opinion and really understand what they are NOT saying. Some experts may go beyond accepted science and attempt to testify about behavior, such as how a fraud is committed, or whether the defendant is in a gang.
The Preliminary Hearing
A preliminary hearing is a screening process in a felony case, to see if the court will spend its time with a full blown trial. In the old days, this was much more critical because the victim had to testify and would be subject to cross-examination. Now, the preliminary hearing can use hearsay, so the victim might not testify or be subject to cross examination. If the victim testifies at the preliminary hearing, it is important to conduct thorough cross examination, because that testimony can be used at trial even if the victim becomes unavailable. If the victim does not testify, the police will just rehash what is in the report. One function of a preliminary hearing is that the judge can decide to reduce certain felony charges to a misdemeanor.
We must consider whether we can develop any affirmative evidence that will contradict or neutralize the prosecution’s evidence. The strength of your defense and the weakness of the prosecution’s case will be factors in our ability to have the charges dropped, to negotiate a disposition, or in your willingness to go to trial, but not all cases go to trial. A trial is one option, while a negotiated disposition is another option. If the evidence is admissible and if the case cannot be dismissed, it is the defendant’s decision whether to proceed to trial or to accept some negotiated disposition, commonly called a plea bargain. An offer from the prosecution is usually a function of the strength or weakness of the prosecution’s case, the strength of your defense, the seriousness of the offense, and your record. Generally, the sentence gets worse as the facts of the case become more aggravated or as the defendant’s record is more serious. However, many dispositions are negotiable, so there is still work to be done even if you do not plan to go to trial. An attorney can explore some sentencing options that might be acceptable to the court. Your goal might be to put off the sentence until a certain date, to avoid jail time, to be allowed to check out of jail and go to work, or to reach a disposition that does not require you to travel back to this area.
The “Side Effects”
In addition to the proposed sentence, you will want to be aware of the “side effects” of a conviction before you plead guilty. Certain convictions are “priorable”, which means each new conviction becomes more serious. Driving under the influence, driving on a suspended license, and crimes falling within the three strikes law are examples of convictions that will make each new case more serious. A conviction for a “strike” will subject you to increased punishment for certain new offenses for the rest of your life. A felony conviction and certain misdemeanors will prohibit you from possessing a firearm and certain other weapons. Some professional licenses can be jeopardized by certain convictions. Many offenses require registration as a offender, arson and drug convictions require registration, and some crimes involving drugs or dishonesty might disqualify you from obtaining a security clearance, or might disqualify you from getting a particular job. A private person cannot legally obtain your actual criminal record, but companies that offer background checks try to reconstruct your criminal record by indexing all of the court records under your name. Court records are public information. Even when the rest of the disposition is the same, the charge you are convicted of can make a difference. If you have a particular goal, you should discuss it with an attorney to see if that can be accomplished.