Cooper Legal Services Dwayne E. Cooper, Atty at Law

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Common Questions

1. What do I do if I am arrested?

2. What will happen at my initial hearing?

3. What are my bail options?

4. After the initial hearing, what happens next?

5. Going to trial...

6. What is the role of the prosecutor in a criminal trial?

7. What is the role of my attorney in a criminal trial?

8. What is the role of the judge in a criminal trial?

9. What is the role of the jury in a criminal trial?

10. What is the sentencing hearing?

11. What is the goal of criminal sanctions?

12. Criminal Appeals

13. Now that I'm on probation...

14. I'm a victim of a crime. What are my rights?

15. Traffic Offense... Should I fight it?

16. The DUI/DWI case

17. I have an alcohol problem. Where do I go to for help?

18. I have a drug problem. Where do I go to for help?

19. I have an anger-control problem. Where do I go to for help?

20. Get professional help

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"Criminal Law Guide"

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1. What do I do if I am arrested?

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.

3. What are my bail options?

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 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.

     

Disclaimer to Reader:: The above is not legal advice and you should not rely on it. Everything on this web page is general information only. Nothing on this web page establishes an attorney-client relationship. If you have a legal question or problem, please consult an attorney.

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