"Criminal Law
Guide"
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here to check out my recommended books at the Criminal Law Bookstore!
The first move should be obvious... Stop, think, and
call a good lawyer as soon as possible.
When you are arrested...the State of Indiana is
accusing you of committing a crime...something which is
punishable...something that might put your liberty at stake and take
you away from your family, friends and loved ones.
Treat the matter seriously. This is not the time to
joke around or play know-it-all.
Now, generally, most law enforcement personnel are
some of the nicest people you might ever want to meet. However, one of
the main functions of their job is to elicit information from you.
They may befriend you. They may lie to you. They might trick you. They
might even threaten you.
What you need to know is that, generally, they are not
eliciting this information for your benefit. Law enforcement
personnel work for the State of Indiana and that officer is probably
looking for information that will help their case AGAINST you.
Every thing you do and every word you say may be used
against you. That's why I usually tell most people to "say
nothing", "answer no questions", "give no
consents" and to "not participate in any investigative
procedures until I arrive."
If you are asked to appear in a lineup or be shown for
identification... refuse politely and advise the officer that you want
to wait until your attorney is present. However, do not resist
physically and do not try to cover your face.
One of the things you should be doing is observing
everything that has been going on so you can relate this to your
lawyer when he arrives. Observe all the circumstances that led up to
the arrest and observe everything after the arrest. Make notes
and keep them to yourself!
2.
What will happen at my initial hearing?
Usually, the prosecutor has already filed formal charges before the
intial hearing. However, if he/she hasn't, they are generally required
to file formal charges before this hearing.
The Court will look at what the defendant is charged with and will
explain the charges against the defendant and the rights that the
defendant has in the case.
Some of the things the court will explain are:
1. The maximum possible sentence and any mandatory minimum required
by law.
2. Your right to a trial
3. Your right to a trial by jury
4. Your right to remain silent
5. Your right to have the presence of an attorney.
6. Your right to appointed counsel if you are indigent.
The Court will then inquire as to the Defendant's plea.
The Court will usually then set a bench trial or jury trial date
and an omnibus date that controls the date for filing of motions.
The last thing the Court will usually do is set the amount and
terms of the defendant's bail.
The Court has quite a bit of flexibility when it comes
to setting bail. Many counties have guidelines they use when setting
the amount of bail. These guideline usually take into consideration
the severity of the charge and the risk of flight from prosecution.
If the appearance of the Defendant is reasonably
assured, it is possible to be released on personal recognizance.
However, most people will have to post a 10% cash deposit bond, a
surety bond or a bond secured by real estate.
Of course, the Court can impose restrictions or
requirements on the defendant when setting bail.
It is interesting to note that Article 1 Section 17 of
the Indiana Constitution gives each person the right to bail unless
the offense involves murder or treason. However, the Court often
sets the amount of bail so high that it actually denies a person their
freedom while awaiting trial!
4.
After the initial hearing, what happens next?
This is the time where your attorney will prepare your
case toward your ultimate goals. Generally, that means preparing your
case for trial.
A good attorney will identify the possible legal
issues in your case and do the necessary research on those issues.
Motions will probably be filed with the Court on your
behalf. Additionally, your lawyer will investigate your case by
talking with potential witnesses and looking at the possible evidence
in your case.
Discovery will usually be exchanged with the
prosecutor along with proposed witness and exhibit lists.
The defense attorney and the prosecutor will talk
about the strengths and weaknesses of their cases and the
possibilities of settling the case.
5.
Going to trial...
Most criminal cases do not go to trial. Some are
plea-bargained out to lesser charges or a lesser sentence and some
cases are dropped completely.
A good defense lawyer will always prepare each case
for trial.
Once at trial, the case will proceed as follows:
The prosecutor will begin with an opening statement.
The defense will follow with their opening statement.
The prosecutor will then proceed with their case by
calling witnesses to testify. Witnesses will be placed under oath and
are questioned by the prosecutor attorney who called the witness. The
defense attorney will have an option to cross-examine the prosecutor's
witnesses if they so desire. Exhibits may also be presented as
evidence in the case.
At the finish of the prosecutor's case, the defense
will have the opportunity to put on their case. Since the prosecutor
has the burden of proving each element of their case beyond a
reasonable doubt, sometimes it is not necessary for the defense to
present their case or call certain witnesses.
6.
What is the role of the prosecutor in a criminal trial?
The prosecutor represents the State of Indiana against the
Defendant.
The prosecutor has an ethical duty to refrain from prosecuting a
charge that the prosecutor knows is not supported by probable cause.
Additionally, the prosecutor may not discourage defense witnesses from
testifying and the prosecutor will be held to any agreements they make
with the defendant or any witnesses.
Furthermore, the prosecutor has the duty to see that the Defendant
is accorded procedural justice and that guilt is decided upon the
basis of sufficient evidence.
The prosecutor must make timely disclosure of all evidence or
information known to the prosecutor that tends to negate the guilt of
the accused or mitigates the offense. This means that the prosecutor
must not suppress or omit material evidence and must takes steps to
preserve useful evidence for the Defendant.
7.
What is the role of my attorney in a criminal trial?
The defense attorney must diligently and zealously
represent the client's best interests at trial.
Although the defense attorney must abide by the
client's objectives, the defense attorney is responsible for the
technical and tactical issues at the trial.
One of the defense attorney's main duties is to help
ensure that the Defendant gets a fair trial. The defense attorney does
this by functioning as a watchdog on behalf of his client by helping
educate the judge as to potential inadmissible evidence and other
legal issues and by making sure that the prosecutor doesn't overstep
their bounds when presenting their case or objecting to the client's
defense.
Interestingly enough...few people realize that, while
most everything the Defendant tells his attorney is protected by the
attorney-client confidentiality privilege, the defense attorney may
not knowingly offer false information into evidence.
8.
What is the role of the judge in a criminal trial?
The judge is a public officer who is charged with the control of
the legal proceedings in the court.
The judge will determine whether certain evidence is admissible or
not. Furthermore, the judge will rule on preliminary matters and
discovery issues that the parties have.
Before a jury decides a case, the judge will instruct the jury as
to how the law guides them in the particular case.
9.
What is the role of the jury in a criminal trial?
Jurors take an oath to honestly, justly and
impartially hear a case.
Jurors have a duty to keep an open mind and must not
form or express an opinion until they have heard all the evidence, the
arguments of counsel, and the final instruction as to the law from the
Court.
Jurors are the exclusive judges of the evidence, the
credibility of the witnesses and the weight to be given to the
testimony. In weighing the testimony to determine what or who is to be
believed, the jury should use their own knowledge, experience and
common sense to guide them.
10.
What is the sentencing hearing?
After a guilty plea or verdict, a sentencing hearing
is generally held so the judge can hear evidence as to what the
defendant's sentence should be.
In felony cases, a pre-sentence report must be
prepared and the defendant must receive a copy of the contents of the
report before the hearing.
Generally, the judge must sentence the defendant to
the presumptive sentence set by statute unless there are mitigating or
aggravating circumstances in the case.
Generally, a sentence may run consecutively (one after
the other) if all the crimes arose out of 1 transaction and the
offenses aren't identical.
Generally, a sentence should run concurrently (at the
same time) if there were no aggravating circumstances in the case.
However, a consecutive sentence is required is the defendant was still
on probation, parole or imprisoned for another crime.
11.
What is the goal of criminal sanctions?
Article 1 Section 18 of the Indiana Constitution says
the aim of criminal sanctions is to reform the criminal offender.
12.
Criminal Appeals
Article 7 Section 6 of the Indiana Constitution says
that all defendants have the right to one appeal of their criminal
conviction.
Generally, the conviction will be sustained (upheld)
if there is sufficient evidence for a reasonable jury to conclude that
the defendant was guilty beyond a reasonable doubt.
13.
Now that I'm on probation...
Probation is a sentence imposed for the commission of
a crime where...instead of being incarcerated...the convicted criminal
offender is released into the community under the supervision of a
probation officer under certain terms and conditions.
Probation may be revoked if a defendant violates the
terms and conditions of their probation.
The petition to revoke requires that the State prove
that the conditions were violated by a preponderance of the evidence
at a hearing before a judge. This is a much lesser standard than the
"beyond a reasonable doubt" standard that the State had at
trial.
Probation violations are very common and the potential
consequence is very serious. If probation is revoked, it is
possible for the defendant to be sentenced to the original sentence!
14.
I'm a victim of a crime. What are my rights?
Victims of crime do have rights!
Indiana law allows a victim to address the court in
writing or in person concerning their opinion of any plea agreement
between the prosecutor defendant.
Furthermore, a victim may submit a written or an oral
victim impact statement (including a summary of financial, emotional,
and physical harm, and if restitution is desired, the basis and amount
of restitution) to the court at the time of sentencing on how they
have been affected by the crime.
At sentencing, the court may order the defendant to
make restitution to a victim, a victim's estate, or the family of the
victim who is deceased, for medical expenses and lost earnings (only
to the date of sentencing), property damages and funeral
expenses. Restitution orders are not discharged by the
completion of probation or a sentence.
Such an order does not bar a civil action for other
damages suffered by a victim and is a judgment lien in the same manner
as action for other damages suffered by a victim and is judgment lien
in the same manner as a civil judgment lien. A victim suffering
losses as a result of a crime may bring a civil action an offender for
damages. For certain property crimes (arson, criminal mischief,
burglary, trespass, theft, conversion, forgery, fraud, or check
deception) or the crimes of confinement or violation of a custody
order, or criminal gang crimes, a victim may bring an action for three
times the actual damages. A victim suffering losses as a result
of harm to their person to their property as a result of an
international act of a child under 18 may bring a civil action against
the custodial parent for actual damages not exceeding $5,000. If a
child is a member of criminal gang, and the parent encourages or
benefits from the child's gang involvement, the parent may be liable
for actual or treble damages.
Victims of violent crime may be eligible to receive no
less than $100 nor more than $10,000 for reasonable medical expenses,
funeral expenses, counseling expenses, lost wages and emergency
shelter expenses (up to 30 days) for a victim to avoid contact with
the offender, and child care (not to exceed $1000). An emergency award
of up to $500 is possible.
Victims of sex crimes, including child molesting and
incest are entitled to have their emergency room expenses paid from
the Violent Crime Compensation Board and are entitled to many services
from certain licensed medical service providers free of charge.
The cost of examinations performed to gather evidence
for prosecution are to be paid by the appropriate government agency.
Evidence of a victim's past sexual conduct is
generally not admissible in the presence of a jury.
Unless the victim otherwise notifies the Indiana
Department of Correction in writing that they wish not to be notified,
a victim of prosecution witness must be notified of a defendant's
release from the Indiana Department of Correction.
15.
Traffic Offense... Should I fight it?
If you receive a traffic citation, you usually have
the option of either paying the fine by mailing in the designated fee
or appearing in traffic court to contest the ticket.
Whether you should fight the ticket depends on many
things, including whether the potential penalty is serious and whether
you have a valid defense to the ticket. Look at the facts of your case
objectively. Do you have valid reason for violating a traffic law or
just an excuse?
There are several ways a traffic ticket can be
dismissed. Some of the more common reasons for dismissal include:
State's failure to make a prima facie case; State isn't ready to
present its case at the time of your court appearance; Lack of
jurisdiction; and Mistaken identification.
Contact your attorney regarding the traffic matter and
he/she should be able to help you decide whether you should fight it.
16.
The DUI/DWI case
The time when courts were likely to let a drunk driver
off with a fairly light penalty is gone. Today, a drunk-driving charge
can bring heavy fines and prison sentences.
In Indiana, there are two common charges that are
often brought in drunk-driving cases.
1. "Operating a vehicle while intoxicated" (I.C.
9-30-5-2). This offense is a Class A misdemeanor. The maximum sentence
is one year in prison and a fine of $5,000. The minimum sentence is no
time in prison, no probation and no fine.
2. "Operating a vehicle w/BAC of at least .10% " (I.C.
9-30-5-1(A)) This offense is a Class C misdemeanor. The maximum
sentence is no more than 60 days and a fine of $500. The minimum
sentence is no time in prison, no probation and no fine.
Furthermore, a lesser-included offense of "Public
Intoxication" (I.C. 7.1-5-1-3) is often charged. This offense is
a Class B misdemeanor. The maximum sentence is 180 days in prison and
a fine of $1,000. The minimum sentence is no time in prison, no
probation and no fine.
If a defendant has a previous drunk-driving conviction, the State
will usually charge the defendant with a "Previous Conviction
DWI" (I.C. 9-30-5-3). This offense is a Class D felony. The
maximum sentence is (3) three years in prison. The minimum sentence is
(6) months in prison. The presumptive sentence is 1 ½ years in
prison.
If you have been charged with an alcohol related driving offense,
there are several consequences of those charges of which you should be
aware. These consequences may include: (as of 12/31/98)
(1) Your driving privileges of license will be suspended at least
90 days. However, if you do not have a prior conviction for Operating
a Vehicle While Intoxicated and did not refuse a chemical test for
intoxication, it is possible to receive probationary driving
privileges in lieu of a complete suspension.;
(2) If you have a prior conviction for Operating a Vehicle While
Intoxicated and that conviction was within five years of this offense,
you must at a minimum be sentenced to five days in jail or be ordered
to perform ten days of community service.;
(3) If you are pleading guilty to a Felony or an A Misdemeanor
involving alcohol or drugs, this conviction may be used to find you a
Habitual Offender which could subject you to additional penalties in
the future;
(4) Notice of your conviction will be sent to the Bureau of Motor
Vehicles and will count toward your being an Habitual Traffic
Violator.
For many reasons, the DUI/DWI case is one of the more complicated
areas of criminal law. If you are charged with DUI/DWI, do yourself a
favor and call a good attorney as soon as possible.
17.
I have an alcohol problem. Where do I go to for help?
Obviously, alcohol can cause problems. Those problems
may be automobile accidents, DUI charges, increased insurance
premiums, health problems, employment problems, strained relationships
with loved ones and failed marriages...
And it's easy to think that treatment is only
necessary for those folks who hang out on street corners drinking from
brown paper bags, or do not hold jobs, or shake uncontrollably in the
morning until they drink.
However, problems related to alcohol are found in all
age groups from the very young to the senior citizen, and in all
social and economic levels in our society. There are alcoholics who
are policemen, clergymen, university professors, doctors, lawyers, and
even judges.
Furthermore, it does not matter what you drink, or how
often you drink, or what time of the day you start drinking. What does
matter is what happens when you do drink...
If alcohol is a factor in some of the problems you
have been having in your life, you may need help. Here is a list of
resources you can contact:
Alcoholics Anonymous (AA)
- worldwide fellowship of sober alcoholics whose recovery is based on
the 12 step program. No dues or fees. 212-870-3400
Al-Anon/Alateen -
helps families and frends of alcoholics. No dues or fees.
1-800-356-9996 (general information); 1-800-344-2666 (meeting
information)
Mother's Against Drunk
Driving - call for your local chapter and order their
free materials and CD-ROM on underage drinking. 1-800-438-6233
In addition to these resources, I often recommend
private counseling or an in-patient alcohol treatment program that can
be done at your local hospital.
18.
I have a drug problem. Where do I go to for help?
Marijuana
National Household Survey on Drug Abuse (NHSDA) found
that Marijuana remains the most commonly used illicit drug in the
United States.
According to data from the 1996 NHSDA, more than 68.6
million
Americans (32 percent) 12 years of age and older have tried marijuana
at least once in their lifetimes, and almost 18.4 million (8.6
percent) had used marijuana in the past year.
Unfortunately, approximately 2.5 million people start
using marijuana each year.
Marijuana is often known as pot, weed, dope, grass, hashish,
hashish oil, Mary Jane and ganja: they all come from the cannabis
sativa plant. Marijuana contains THC (tetrahydrocannabinol), which
is a chemical substance that changes the way you feel, think and act.
Contrary to popular misconception, the health hazards of marijuana
are numerous and extremely severe. Some effects of the
drug will occur within minutes if smoked...within 30 minutes if eaten.
Many people know that marijuana use makes users feel a
"high" or altered state of mind leaving them more relaxed,
more clumsy, more talkative, more distant from their immediate
environment, more nervous, caring less about what they say or do and
less likely to remember, reddens the eyes and increases one's
appetite.
But many people don't know the other common side afffects of
marijuana use that makes it such a deadly drug.
Here are a few additional side affects:
1. Brain - deterioration of learning, memory, sensory
experiences, emotions, motivations, reasoning and learned
behaviors. This deterioration is more likely to result in
learning and social behavior problems such as deviant behavior,
delinquent behavior, anger, aggression, greater rebelliousness, poorer
relationships with parents, more associations with delinquent and
drug-using friends, difficulty sustaining attention, registering,
processing, and using information and memory, and learning
impairment. Marijuana seriously reduces one's ability to
do basic tasks such as speaking, driving a car, reading or
reactng intelligently to crisis or emergency situations.
Personality or anxiety disorders worsen with marijuana
use. Marijuana can cause serious hallucinations which
cause you to see or hear things that don't exist. Emotional problems
can suddenly seem overwhelming. The symptoms of repressed or
controlled mental illness can violently resurface. Some users report a
sudden fear of death.
2. Lungs - The amount of tar inhaled by marijuana
smokers and the level of carbon monoxide absorbed are three to five
times greater than among tobacco smokers. Coughing, chest colds,
bronchitis, abnormal functioning of lung tissue and respiratory
problems are more possible. Besides cancer, marijuana causes
bronchitis, emphysema and harms the body's immune system.
3. Heart - Everyone knows that high blood pressure
kills. A recent study found that the heart rate of subjects
smoking marijuana alone "while sitting down" increased 29
beats per minute! When marijuana was first smoked and then followed
with cocaine, the heart rate increased by 49 beats per minute and the
increased rate persisted for a long time. Those people who do
something physically stressful immediately after smoking marijuana or
cocaine/crack are likely to overload their cardiovascular system and
cause long-term damage.
* Special note on the effects of marijuana on
pregnant women - Pregnant women who use marijuana will pass the
marijuana in their breast milk to the baby! Marijuana use during
pregnancy interferes with the baby's proper nutrition and immune
system. Additionally, babies born to mothers who used marijuana
during pregnancy are often smaller (and more likely to develop health
problems) than those born to mothers who do not use the drug.
Use of marijuana by a mother during the first month of breast-feeding
can impair the infant's motor development (control of muscle
movement).
Marijuana use leads to the use of other drugs! While not as
addictive as other street drugs, marijuana use often leads to cocaine
or heroin use.
Long-term studies of high school students and their
patterns of drug use show that very few young people use other illegal
drugs without first trying marijuana. For example, the risk of
using cocaine is 104 times greater for those who have tried marijuana
than for those who have never tried it. Using marijuana puts
children and teens in contact with people who are users and sellers of
other drugs so there is more of a risk that a marijuana user will be
exposed to and urged to try more drugs.
Cocaine/Crack
According to the Household Drug Survey, somewhere
between 3 and 8 million people used cocaine in the past year.
Crack," the chunk or "rock" form of
cocaine is a true problem drug that has caused a surge in drug abuse
problems and violence. Crack is sold in small, inexpensive
dosage units that are smoked and the experience is available to anyone
with $10 and access to a dealer.
The health problems of cocaine and crack are
numerous. Studies have shown severe effects to the lungs, heart
and brain.
Common health problems are dilated pupils,
restlessness, irritability, anxiety, ulcers in the mucous membrane of
the nose, and increased temperature, heart rate and high blood
pressure.
Less frequent, but more severe health problems include
heart failure, aggressive paranoid behavior, depression, acute
respiratory problems, seizures, collapse of the nasal septum, lung
trauma, respiratory failure, stroke, cerebral hemorrhage and sudden
death syndrome. Interestingly enough, there is no way to
determine who is prone to sudden death and, to date, there is no
specific antidote for cocaine overdose...
If drugs are a factor in some of the problems you have
been having in your life, you may need help. Here is a list of
resources you can contact:
Narcotics Anonymous
- 12 step program for recovering addicts. No dues or
fees. 818-773-9999
Parent's Resource
Institute for Drug Education, Inc. (PRIDE) - order the
"Parent Resource kit" at 1-800-677-7433.
"Growing up Drug Free" - excellent free
brochure by the U.S. Dept of Education - 1-800-624-0100
"Kids say don't smoke" free brochure -
1-800-722-7202
In addition to these resources, I often recommend
private counseling or an in-patient drug treatment program that can be
done at your local hospital.
19.
I have an anger-control problem. Where do I go to for help?
Actually, there is nothing wrong with the emotion of
anger, itself. Anger is often a reaction to hurt, loss and fear and
the emotion of anger can be useful or harmful...depending on how you
choose to react/behave to the anger-provoking situation!
There are many resources out there that can help you
learn to trust yourself and have compassion and forgiveness of others!
If anger is a factor in some of the problems you have
been having in your life, you may need help. Here is a list of
resources you can contact:
Self Growth - a search
for "anger" on this website provides many good articles on the
subject. Without a doubt, the best resource out there!
Angries
Out - outstanding online source of information!
Anger Online - another
very good resource. Check out their recommended books!
Emotions Anonymous
- 12 step Christian program. Excellent webpage. Last time I checked,
there were weekly meetings that were held in Indianapolis.
Emotional Health
Anonymous - similar 12 step program.
Controlling the
Volcano Within - good resources
Cuss Control Academy -
excellent webpage trying to help people reduce profanity, vulgarity and
offensive slang.
American
Psychological Assn - Controlling anger page
Why are you angry -
a place to vent your anger...
In addition to these resources, I often recommend
private counseling or an in-patient anger-control treatment program.
20.
Get professional help
The biggest mistake one can make is to attempt to go
thru the criminal process unrepresented.
The prosecutor may seem like the nicest guy in the
world. However, the prosecutor does not have your interest at heart.
The prosecutor represents the State of Indiana and will try to get the
best results for the State.
The most important thing you can do is to secure
counsel as early on in the process as possible.
 Please send mail to dwayne@cooperlegalservices.com
with any questions or comments that you might have about this web
site.
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