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Advice from Brian on how to protect your rights!

Q: Do I have to consent to the police requests?

A: In any police encounter, it is important to respect the authority of law enforcement, but it is equally important to protect your constitutional rights. If a law-enforcement officer asks you to provide information or perform an action you should always clarify whether the officer is giving a command or making a request.

Police officers are trained to get citizens to relinquish their rights by disguising requests in words that sound like orders. By doing this they are trying to obtain evidence that can and will be used against you. When dealing with the police it is perfectly appropriate to ask politely if the officer is asking you or ordering you to do something. If you are being asked, not ordered, To provide a statement or perform an action, you should respectfully decline and ask to leave, so that you can discuss the situation with your attorney.

Q: Should I comply with police?

A: It is illegal in nearly all jurisdictions to disobey police commands, even if the police are illegally detaining or arresting you. This rule exists to discourage citizens from engaging in physical confrontations with police officers who carry firearms or deadly weapons. If a police officer commands you to perform an action or moves to place you under arrest, it is important that you comply with those orders. Never argue with or confront the police on the street. As soon as you are able contact your Criminal Defense Attorney to make appropriate legal action against offending officers.

Q: Do the police need consent to support a search?

A: Whether the police ask you to search your home, your vehicle or your person, do not consent. The fourth amendment of the US Constitution prohibits unreasonable searches and seizures and requires that police obtain a warrant before conducting a search. Over time, numerous exceptions to the warrant rule have been approved. Consent is the ultimate warrant exception. If the police have no other legal grounds to conduct a search, they will ask for permission.

To put it another way, if the police ask for your permission to search, it means they probably have no other legal basis to support the search. Just say no! Be polite, but firm, and tell the officer that you do not consent to a search.

Q: Can I prove my innocence to the police?

A: If a police officer is serving an arrest warrant on you, it does not matter if the officer thinks you are innocent or guilty; The warrant gives him cause to arrest you. If the officer initiates the arrest without a warrant he obviously thinks you are guilty or he would not be arresting you. When you are trying to argue your side of the keys to the arresting officer, at best you are wasting your breath. At worst, you are making incriminating statements that will cause problems for you later. What you say to the arresting officer can be held against you in court. The best course of action is to remain silent.

Q: Why am I getting investigated?

A: Police officers are trained to do one thing when investigating a crime: obtain evidence for use in a criminal prosecution. If the police asked to interview you or search your property in relation to an ongoing investigation, they are almost certainly attempting to obtain statements and evidence that can be used to justify your arrest and possible conviction. Law enforcement officers may try to say that they are just trying to understand what happened, but their true goal is to gain facts from you to use against you. Never speak to investigators without your attorney present.

Q: Do the police need to advise me of my rights before arresting me?

A: This is one of the most common misconceptions in criminal law today, that the police are required to advise you of your rights at the time of your arrest. The truth, however, is that the police are only required to advise you of your rights if they plan to interrogate you while you are in custody. Therefore, if the police approach you on the street and question you, then later place you under arrest, the answers you gave prior to being arrested may be admissible in court. Another misconception is that if the police do not advise a suspect of his or her rights immediately, then all charges will be dropped. Again, this is not the case. The remedy for a failure to advise a suspect of his or her rights prior to a custodial interrogation is to exclude the suspect statements from the trial, not to dismiss the charges.

Q: Do I stay silent even when I have the right to remain silent?

A: You have the right to remain silent in the face of questioning by law-enforcement. You may not know, however, that you have to Assert your right to remain silent. So speak up to remain silent.

If you are questioned by the police, do the following:

  • Tell the officers you do not want to talk to them.
  • Ask if you are free to leave.
    • if they answer yes then leave immediately and call an attorney as soon as possible.
    • If they answer no then repeat your choice to remain silent and that you request an attorney.
  • Be quiet! Say nothing until you have consulted with a criminal defense attorney.

Many people are overconfident and think they can explain what occurred when questioned by the police. This never works! If the officer thinks he has enough evidence, you are going to be arrested regardless of whether you answer his questions or not.

Q: Do I turn myself in if I have a warrant?

A: You gain nothing by waiting for the police to come and take you on the warrant. When you turn yourself in, you establish a level of credibility and make a strong argument for a low bail. If, on the other hand, you try to avoid the warrant and wait for the police to come and get you, they will find you and they may also find evidence of criminal activity not related to the warrant.

If a warrant has been issued for your arrest, take the following steps:

  • Consult with an attorney. The attorney can call the police and arrange for you to turn yourself in and except service of the warrant.
  • Line up the funds you will need for bail.
  • Make sure you have nothing on you (i.e. drugs, drug paraphernalia, or weapons) when you do turn yourself in, as this will only create additional problems.
Q: Do I have the right to make a phone call from jail?

A: Criminal defendants often will complain that the police did not honor their right to make a phone call. You do not have a constitutional right to make a phone call immediately after arrest. State laws or administrative rules might require the police, a jail or a holding facility to allow in arrestee to make a call.

Q: What should I say when making my phone call from jail?

A: Whatever you say when you make a phone call from jail just remember that it is always recorded, and the prosecutor will more than likely obtain a copy of all your phone calls. However, during your initial phone call, do not discuss the circumstances leading up to and or surrounding your arrest. Do not try to explain your innocence or how you ended up in jail. Simply state the charges against you and where you are. Ask for help in finding a criminal defense attorney. Provide the information of where you are to the other party on the line as well.

Q: When being interrogated do I then make a deal or argue my case?

A: There is no value in arguing your case with an arresting officer during a police in counter. The same holds true post arrest. After you are arrested, the police may spend some time questioning you. The point of this interrogation is to gather information for the prosecutor to use against you, and maybe even get you to confess. The interrogating officer might offer to drop certain charges or promise to go easy on you or get you a better deal if you just tell them what they want to hear. Don’t believe it. If the police had sufficient evidence against you to go forward with the case and obtain a conviction, they wouldn’t be offering you a deal.

Also the police officer sitting across from you and interrogation room has no real power to cut you any type of deal or drop any of the charges. However the police can make recommendations, the prosecutor is the one that determines whether the government will offer you a plea bargain and what the terms of that bargain will be. So, when a police officer or promises That he will get you a particular deal, you cannot rely on that promise. More importantly do not make a deal sign a confession prior to speaking with an attorney.

Q: If I talk about my case will that hurt my case?

A: The most common mistake made by criminal defendants is talking about their case. The key to avoiding this mistake is simple in theory, but in reality is often easier said than done. Do not discuss your case with anyone other than your Criminal Defense Attorney.

If you are being held in custody, Cellmates will be willing to work with the police and turn over evidence about you to get a better deal for themselves. Conversations on jail telephones are monitored and recorded at all times. So if you say something over the jail telephone, assume that the district attorney will hear about it. Plus, jail staff typically read incoming and outgoing inmate mail.

If you are out on bail, your family members and friends will want to know what happened, and you surely will be tempted to explain why you are not guilty. Resist that temptation. Even seemingly harmless statements to trusted friends and family members can be used against you in ways you do not expect. Just state that your Attorney does not want you to talk about the specifics about your case with anyone. This means that you must resist any social media posts about your case.

It doesn’t matter how unfairly you’ve been treated or how well or poorly your case is going, just keep it to yourself. If you post anything about your case on social media, you may inform the prosecution of something about your case that they may not have previously known, or you may accidentally reveal a violation of your Bail or release conditions.

Q: What if the accuser is on my side, will the charges be dropped?

A: Many people believe that they cannot be prosecuted unless the alleged victim or accuser chooses to “press charges“. This is not true! The prosecution makes the decision as to whether or not alleged criminal acts will be prosecuted. Similarly, alleged victims cannot “drop” the charges. Often times, the prosecutor will listen to the wishes of the alleged victims and their families, but the decision to abandon or move forward with a case lies with the government. Sometimes, prosecution offices have strict “no drop” policies especially regarding specific alleged crimes.

Q: What if I didn’t know that what I did was illegal?

A: Not knowing the law or an action is illegal is not a defense for the charges made against you. The police, prosecutor, or judge don’t care what you know or don’t know about the law. It is understood that all people with a jurisdiction are aware of all laws for that jurisdiction. If you claim ignorance regarding a provision of the law which you are now charged with violating will not allow you to escape criminal liability.

Q: I am innocent, will the case be dismissed?

A: Criminal defendants will often request that their case be dismissed because they are innocent of the charges against them. However, a pretrial motion to dismiss which is a formal request to the court to dismiss the charges must be based on one of the very few, narrowly defined, technical reasons for dismissal. A claim of innocence is not a valid reason for a dismissal motion. If you did not do what you were accused of doing then you must plead “not guilty” to the charges, then request a trial.

Q: I have a good character, can that be used in my case?

A: Character witnesses may be extremely helpful and a bail hearing or in a sentencing hearing, however, They are in most cases not allowed in criminal trials. Other than a few limited exceptions, character witnesses are generally inadmissible in court. The issue at a criminal trial is limited to whether you did a specific action in which you were accused of doing. Evidence that you are a “good person,” or that you were accuser is a “bad person” generally is a relevant.

Q: Can I talk to the judge directly?

A: Speaking with the judge about the facts of your case or writing a letter to the judge is not only frowned upon but also not allowed. You are strictly for bidden to communicate with the judge about a pending case off the record or outside of court. The judge will disregard any letters sent to him or her made by you or your family professing your innocence. In court you could damage your case by not keeping concise and clear communication about your case. In the end let your criminal defense lawyer be your voice in communicating with the judge.

Q: If I take a plea will I have to go to jail?

A: Most criminal cases are resolved through plea deals, and it is likely that, if you are arrested, you’ll be offered a plea deal. Chances are that your best interest will be served by taking this deal. If you take a deal be sure that you understand what you were agreeing to and what you will be required to do. A plea deal is not a get out of jail free card. Majority of the time, plea deals come with stiff financial requirements. Also you may be subject to a curfew and travel restrictions. Sometimes, drug testing may be part of the plea deal. If you think you will have trouble complying with the terms of the agreement, it may be best for you to reject the deal and go to trial. Probation violations are easier to prosecute than the crime that was originally charged and the punishment could be more harsh.

Q: At trial what if I prove my innocence, will the jury decide if I’m not guilty?

A: The jurors in a criminal trial or not obligated to collectively piece the evidence together until they arrive at “the truth” or “solve” the case. The jurors only job is to determine whether the government, as represented by it’s prosecuting attorney, has met its burden of proving you’re guilty beyond a reasonable doubt. You do not have to prove your innocence; the prosecution must prove your guilt. Which means after hearing all evidence the jurors must be truly and steadfastly convinced that you were guilty of the crime charged. This is normally a very heavy burden.

How to deal with the criminal justice system?

Q: Can the police stop entertain me for no reason at all?

A: Officers can stop you only if they have a reasonable Suspicion to believe that a crime may have occurred or is about to occur, and that you may be the perpetrator. They can only detain you briefly, in order to investigate, and they must let you go if they are unable to determine “probable cause“ to arrest you.

Q: What should I do if I’m pulled over by the police?

A: If you are pulled over by the police, remain calm. Sit still and wait for the police officer to approach your vehicle. Then practice the following:

  • And you are asked produce your drivers license, registration and proof of insurance. I have these items prepared and available at all times in preparation for a stop so when you are pulled over you can provide the officer proper documentation when they approach and ask for them. If you are disorganized or don’t know where these items are in the office or do you think you were trying to hide something or, worse, may be looking for a weapon.
  • Answer any “identification“ questions.
  • Do not get out of the car. Only exit the vehicle if the officer tells you to do so.
  • If you are asked for your permission to search just say no!
  • If the officer write you a ticket then sign it. Do not try to fight the ticket with the officer.
Q: Don’t the police need a warrant to search?

A: Generally speaking, yes; the police need a warrant to conduct a search. There are many exceptions to this general rule which is established by the fourth amendment of the Constitution. The police do not need a warrant to conduct research when:

  • Evidence of contraband or criminal activity in plain view.
  • When they make an arrest; this type of search is called and “incident to arrest.“
  • Emergencies when circumstances exist to protect the safety of others.
  • When you consent to a search.
Q: Are police allowed onto my property without my permission?

A: Police are not allowed onto your property without a warrant or your consent, unless there are “Exigent” circumstances.

Q: What should I do if I am arrested?

A: At the time of your arrest, you may feel helpless and utterly without control or the situation. You can regain some control and help yourself in the long run by immediately asserting your constitutional rights to be silent and to speak with an attorney.

The fifth amendment to the U.S. Constitution protects your right to remain silent.

The sixth amendment guarantees your right to an attorney

Silence is not enough to invoke your right to remain silent you must tell the officers that you wish to remain silent, that you will not answer any questions and you want to speak with an attorney.

Once you have made your rights known, stop talking. Your choice to remain silent cannot be used against you in trial but any statements you make can be

Q: My loved one has been arrested… What should I do?

A: When your loved one calls to tell you that he or she has been arrested, follow these best practices:

  • Remain calm.
  • Do not demand for detailed examples or explanation of what happened now is not the time to scold or cast blame. The call is being recorded and anything said can and will be used against you and your loved one.
  • Find out where your loved one is being held.
  • Tell your loved one to not discuss any of the specifics about their case with anyone.
  • Determine if bail has been set and when or where it can be paid.
  • Contact a criminal defense attorney immediately and arrange for that attorney to meet you about your loved one.
Q: What happens after an arrest?

A: When you are arrested, you will be transported to the police station and booked. Cooking is the process of identifying you and recording the arrest. You will be photographed and fingerprinted also an officer ask you a series of questions, including about where you live, where you work and your immigration status.

If you are arrested for a minor offense, the arresting officer may have discretion to set a minimal bail and release you from the police station. In almost all cases, however, after booking, you will be taken to court for an initial appearance before a judge. At this initial court appearance the judge will review the charges to determine whether there is probable cause to hold you. At the initial parents you are entitled to:

  • Notice and an explanation of the charges against you.
  • A copy of the charges.
  • Notice of your legal rights, especially your right to remain silent and your right to counsel.
  • Representation by an attorney.
  • A bail determination.
  • Setting of a preliminary hearing date.

At the conclusion of this hearing, you may be released on bail or detained to await further proceedings. At your next court appearance, you will be formally charged and enter a plea of “guilty“, “no contest“, or “not guilty.” Following your arraignment, your case will proceed to trial, unless the matter is resolved before the trial by means of a plea bargain.

Q: What is bail?

A: “Bail” is the legal term for the conditions upon which a defendant is released from custody. The conditions of your release may include the posting of collateral; the promise to obey court ordered restrictions on your liberty; and the promise to return to court answer for the charges. Depending on your circumstances different types of bail might be available to you:

  • An unsecured bond – You may be released on your own recognizance (OR) or on a bond that requires no case deposit and no collateral other than your signature.
  • A cash bond – For a cash bond, the court requires the deposit of cash as collateral to secure your release.
  • A surety bond – Requires the signature of a third-party, The court also may require the third-party to post collateral to secure your release.
  • A property bond – your home, or the home of a family member or friend, maybe put up as collateral for your release. This allows you and your family to keep your cash for living expenses and legal fees it also makes a strong argument in favor of your release because if you fail to appear for trial you or your family member or friend will lose their house. This gives you a real powerful incentive to return to court.
Q: How is bail determined?

A: Your bail will be set at a hearing, or immediately after your initial appearance before a judge. Your attorney will present the facts in your favor regarding employment history and status, your personal situation, your family’s need for your income and health benefits, and your ties to the community.

If the charges against you are serious then the judge may deny bail and an order to ensure the safety of the community or a particular person. Or the judge could deny your veil by setting an amount which may be unreasonably high. If either of these conditions occur, then you will be returned to jail to await trial.

These are the conditions which may take place if released on bond/bail:

  • Travel restrictions
  • A curfew
  • A ban against using drugs or alcohol, which may be accompanied by testing and monitoring
  • Random consented searches of your person and home
  • Psychiatric evaluation
  • An injunction against contacting witnesses or the victim.
  • Wearing an ankle monitors
Q: What happens if I can’t make bail?

A: If you are unable to make bail you will remain in custody until the next court procedure or trial. If you are unable to post bail, your attorney may be able to file a motion to reduce spell. In addition to having the bill amount reduced, your attorney may also request that you be confined to your home on an electronic monitoring ankle bracelet, or that the court impose some other form of house arrest.

Q: Do the police and prosecutor work together?

A: The police and prosecutors work as a team on most criminal cases. Please investigate the case, and the prosecutors try the case. However, it is the prosecutors job to present the evidence to the jury at trial. Majority of the time, the officers’ testimony is a vital piece of the evidence presented.

Q: How does the prosecutor decide whether they will file charges?

A: The majority of the time prosecutors discretion to file charges yet many factors are considered when making their decision to file formal charges. Some factors may include:

  • Severity of allegation
  • The allegation effect on any victims
  • Any restorative steps that can be taken without formal charges
  • Victims/witnesses are cooperative and wish to proceed
  • Witnesses have credibility issues
  • There is sufficient probable cause
  • The likelihood of obtaining a conviction
  • Whether the perpetrator poses a safety threat to society
  • The perpetrator has previous contacts with the system
  • The cost associated with pursuing charges
  • Creates personnel burden at the prosecutor’s office
Q: Can you get the evidence against me thrown out?

A: Possibly…One of the strongest tools available to the defense is a “motion to suppress” evidence. It is used as a formal request to the judge to prohibit the prosecution from introducing certain evidence at trial, on the grounds that it was illegally obtained by the police, in violation of your constitutional rights.

Q: Why would you do a motion to suppress?

A: “Why” is protected by The Fourth Amendment of the United States Constitution which prohibits the government from conducting unreasonable searches and seizures. Which means that the government cannot search you for your property without evidence also nothing may be seized unless there is probable cause to believe that criminal activity is occurring. furthermore, you cannot be placed under arrest calls. If any evidence was obtained or you were arrested during an unlawful search and seizure, then this can be “suppressed”.

The Fifth Amendment to the United States Constitution gives you the right to remain silent and to have an attorney present during any questioning that may occur. If the government ignored this right which is protected by the Fifth Amendment then any statements you made may also be suppressed.

In nearly every criminal case, there is some piece of evidence that may be subject to a suppression. Based on this fact the “motion to suppress” evidence is one of the strongest tools available to a criminal defense attorney.

Q: How will my criminal defense attorney determine what can be suppressed?

A: Our office has multiple procedures to determine what may be suppressed and a criminal case. We will conduct extensive investigation to evaluate whether the government’s actions were unreasonable, unlawful, or in violation of your constitutional rights. The evidence regarding a criminal case is called discovery. Your criminal defense attorney will request this information from the government as early as you have retained the services of that attorney. Once discovery is received the investigation will begin.

Our staff and attorneys will ask about the circumstances in which the government obtained any evidence in your case. In order to do this efficiently our office procedure is to allow you to review the discovery in it’s entirety and make notes based on the recollection of events which occurred. Remember you are the leading expert in your criminal case and anything that can be determined incorrect, unreasonable or unlawful will only help you and your case.

One of our staff attorneys will review your notes as well as the discovery. Following their review the meeting will be set up between you and the lead attorney in your case. The purpose of this meeting is to give you an update on the approach we are taking, issues your attorney sees, plan of attack, proper next steps and there may be some decisions we are wanting your feedback on.

Q: Who decides whether to allow or suppress the evidence?

A: following your Criminal Defense Attorney‘s filing of the motion to suppress evidence, the court will reach out to your attorney to schedule a hearing to rule on the motion to suppress. During this hearing the court will determine whether the evidence was illegally obtained, and based on the agreement of the court the judge will grant or deny the motion to suppress.

If it is determined the evidence was illegally obtained in your case it is highly likely the judge will grant the motion to suppress and depending on the evidence this may result in the dismissal of all the charges against you. However, if the judge denies the motion to suppress the hearing will still provide your criminal defense attorney the opportunity to cross-examine the government’s witnesses. Cross-examination may reveal unknown facts or result in unexpected admissions by any of the witnesses. This also ties the witnesses to a specific version of the facts.

Q: What happens at a suppression hearing?

A: At a hearing on a motion to suppress, your defense attorney will state the legal and factual grounds for the suppression of evidence and what evidence in particular should be suppressed. The police will usually testify, and the prosecution will elicit testimony showing what the police did and why they did it. Your criminal defense attorney then will have the opportunity to question (cross-examine) the police, to show that the officer’s behavior was unreasonable under the Constitution. You, the defendant, may be called to testify as well, but this is rarely done. More likely than not, you will exercise your right to remain silent, rather than expose yourself to cross-examination by the prosecutor. Both sides may introduce exhibits into evidence. At the conclusion of all the evidence the attorneys will make final arguments to the judge, and the judge then will make a decision on the record.

Q: What are common pleas courts?

A: Every county has a common pleas court consisting of one or more judges. A common pleas court hears cases involving such matters as real estate, personal injury, breach of contract, marital conflicts, probating of estates, guardianship of minors, and business relationships. This court has jurisdiction to hear all criminal felony cases. The common pleas court also has authority to hear appeals from decisions of municipal and county courts as well as state and local administrative agencies. The jurisdiction of municipal, county, and mayors’ courts is regulated by statute, but the common pleas court has countywide jurisdiction. Because this jurisdiction is established by the Ohio Constitution, it cannot be changed without a constitutional amendment.

Q: What is probate court?

A: Each county has a probate court that is part of the common pleas court. The probate court is generally charged with overseeing the administration of estates upon the death of an individual who dies a resident of the state. Probate courts also issue marriage licenses and have jurisdiction over adoptions, name changes, competency hearings, and involuntary civil mental health commitments. Along with county and municipal court judges, a probate judge may perform marriages.

Q: What is a domestic relations court?

A: The domestic relations court, which may be a separate division of the common pleas court, has jurisdiction over all proceedings involving termination of marriages, annulment, legal separation, spousal support, allocation of parental rights and responsibilities (including visitation), and authority over the care and support of children of divorced parents.

Q: What happens in juvenile court?

A.The juvenile court is a common pleas court with jurisdiction to hear only cases involving juveniles (children under 18) alleged to be delinquent, unruly, abused, neglected or dependent. This court also determines issues of paternity, custody, and child support in cases involving children who have been born out of wedlock, or if no action for divorce, dissolution, annulment or legal separation has been filed in the common pleas court domestic relations division.

Q: What are appeals courts?

A: Appeals courts hear and decide all appeals from decisions of Ohio’s trial courts except mayors’ courts as explained above. Appeals courts also have original jurisdiction to hear certain special proceedings, which means such proceedings are filed directly in the appeals court rather than a trial court.

Ohio is divided into 12 appellate districts, with each district having three or more judges. Each case before the court of appeals is heard by a panel of three judges. These courts generally do not hold trials or hear evidence. They decide matters of law based on the record of the trial court, the written arguments called briefs (which are prepared by the attorneys), and the oral arguments before the court. After hearing arguments about the trial court’s decision, the appeals court may either affirm or reverse the trial court, or remand the case to the trial court for further proceedings. Appeals courts issue formal decisions called opinions, which are based upon whether or not prejudicial errors were made at the trial court level.

Q: What is a plea agreement?

A: A plea agreement is a deal that is negotiated between the prosecutor and the defendant. The agreement usually will consist of the Prosecutor offering to recommend a lighter sentence or to drop more serious charges, in exchange for the defendant agreeing to plead guilty and forego a trial. The agreement must be approved by a judge.

Q: If I am offered a plea deal, should I take it?

A: There are many factors to consider before taking a plea deal, also you should always discuss your options with an experienced criminal defense attorney before you make your final decision. By taking a plea bargain you will be pleading guilty and that is the equivalent of a criminal conviction, which can have severe, life-altering consequences. If you have spoken to an experienced defense attorney, just remember that the final decision on whether to accept or reject a plea deal belongs to you.

Here are some of the factors to consider before making your decision:

  • The charges against you.
  • The evidence against you.
  • What will the witnesses say?
  • Can any of the evidence be suppressed?
  • The sentence you may face if convicted?
  • What is the total sentence, on all charges, to which you are exposed?
  • If any charges will be dropped or if any charge calls for a “mandatory minimum” sentence, will the prosecutor agree to not seek the “mandatory” sentence?
  • Whether you are eligible for a program where your criminal record can be sealed?
  • Your personal circumstances which may be impacted by making this decision? (ie. Do you have a family to support? Do you have a criminal record? Do you want to keep the matter private and avoid a public trial?)
  • Are you willing to let a group of strangers decide your fate?
  • How likely is the judge to approve the deal and follow any sentencing recommendations?
  • Potential collateral consequences of a guilty plea? (ie. immigration-related consequences, employment-related consequences, loss of professional licenses, loss of voting privileges, loss of driving privileges, loss of the right to possess firearms, or registration as a sex offender.)
Q: What rights do I give up if I agree to a plea deal?

A: The Constitution of the United States guarantees criminal defendants certain rights. When you agreed to a plea deal, you agreed to give up or “wave” these rights:

  • The right to a public trial, by a jury. If you are charged with a crime that carries a penalty of more than 6 months of imprisonment, you have a sixth amendment right to a public trial, by a jury of your peers. When you agree to a plea deal, in private negotiations with the prosecutor you waive these rights.
  • The right to remain silent. When you are taken into custody, you have the right to remain silent in the face of police questioning. That right extends to a criminal trial, as well. Plea deals, however, is a communicative process; the prosecutor is not going to deal with a defendant who refuses to talk.
  • The right to confront witnesses. The Sixth Amendment’s “confrontation clause” protects your right to confront and challenge the witnesses against you, by cross-examining them under oath, in court. You give up this right when you agree to a plea deal.
  • The right to defend yourself at trial. When you agree to a plea deal, you waive your right to defend yourself against the charges and or subpoena witnesses to testify in your favor.
Q: Can I change my mind about a plea deal?

A: Possibly, but you must act quickly…and you face an uphill battle to convince the judge to agree.

Prior to sentencing: you may petition the judge to allow you to withdraw your guilty pleas until the day of sentencing. However, a defendant must assert that he or she is factually innocent in order to persuade the judge to allow the plea to be withdrawn and set the matter for trial.

After sentencing: You may file a written motion asking the judge to allow you to withdraw your plea. If the motion is denied, then you have limited time to file a formal appeal. Your appeal may be based on any grounds you believe have merit.

It may be easier to withdraw your plea prior to being sentenced, but in both instances it will be a challenge to persuade the judge.

Q: My deal includes probation? How does probation work?

A: Probation is a sentence that is served outside of prison and for a specified period of time, with certain court-imposed conditions on the person sentenced to probation. If you comply with the terms of your probation, then you are allowed to remain out of jail; when you complete all the terms of your probation, then your sentence is concluded and you are released from the criminal justice system.

Q: What are some examples of probation?

A: Some examples of common terms and conditions of probation are:

  • Check in with a probation officer as instructed;
  • Abstain from using illegal or non-prescribed drugs, and do not abuse prescribed drugs;
  • Abstain from alcohol;
  • Attend and complete drug and or alcohol rehabilitation;
  • Submit to random were scheduled drug screens;
  • Submit to random searches;
  • Stay employed or seek employment;
  • Obtain a G.E.D.;
  • Stay away from the victims;
  • Complete community service;
  • Pay mandatory court costs and fines;
  • Pay restitution;
  • Abide by the law (no new violations of the law allowed for the duration of the probation period)

This is not an exhaustive list; other terms and conditions apply, depending on the facts of your case and your personal circumstances.

Q: What happens if I violate probation?

A: if you violate the terms of your probation, you may be placed in custody by your probation officer. You will then have a hearing before the judge who’s sentenced do you previously. The judge may rule that you’re in violation, “revoke” your probation and then sentence you to incarceration or a new period of probation. When and if your probation is revoked, the judge may sentence you to serve the remainder of the maximum sentence allowed by law for the charges in which you were initially placed on probation for. This is different than having your “parole” revoked, where you would only be sentenced to the remainder of your remaining jail sentence, but no more than that. Violating probation has more severe consequences.

Q: Am I guaranteed a trial by jury?

A: Not always. You have a right to a jury trial when you are charged with a crime for which you could be sentenced to more that six months of incarceration if convicted. This right is guaranteed by the Sixth Amendment.

Q: What is the Speedy Trial Rule?

A: You have a right to be brought to trial without undue delay caused by the prosecution. The right to a speedy trial is rooted in the sixth amendment of the United States Constitution. The prosecution has the burden of diligently bringing a defendant to trial. The general rule is that a defendant must be brought to trial within one year from the date they are charged with a crime, yet this could vary among jurisdictions.

If the prosecution fails to bring someone to trial within the time mandated by law, then your criminal defense attorney may file a motion, asking that the charges be dismissed. If a judge finds that the prosecution has caused unreasonable delay, the case may be dismissed “with prejudice,” meaning the prosecution is forever barred from charging you with the same exact crime.

If, however, your criminal defense attorney caused the delay in bringing your case to trial, then that delay will not count toward the computation of time; likewise, delay that is beyond the prosecution’s control will not be charged against the government when deciding if there is a speedy trial violation. Additionally, if you are in pretrial custody and have not been brought to trial within a certain period, your criminal defense attorney may bring a motion requesting that you be released on nominal bail pending your trial.

Q: What does guilty “beyond a reasonable doubt” mean?

A: In order to obtain a conviction in a criminal case, the prosecution must prove that the defendant is guilty “beyond a reasonable doubt.” This is their burden.

“Beyond a reasonable doubt” does not mean beyond all doubt, as that standard is impossibly high. Nor does it mean “more likely than not,” as that standard is too low, given all that is at stake in a criminal case. Practically speaking, “beyond a reasonable doubt” means that, after hearing all the evidence, the jurors are truly and steadfastly convinced that the defendant is guilty of the crimes charged.

Q: Why is there cross-examination in criminal trials?

A: The confrontation clause of the Sixth Amendment to the United States Constitution provides that defendants have the right to confront all witnesses against them. This is done by cross-examination.

Cross-examination is the process by which the opposing attorney asks questions of the witness, with the goal of poking holes in the witness’ version of events, challenging the accuracy of the witness’ memory; undermining the witness’ credibility; and creating reasonable doubt in the minds of the jurors. Both the defense and the prosecution have the opportunity to cross-examine witnesses at trial.

Q: Should I testify?

A: In almost all cases, that answer is, “no,” but the decision to testify or remain silent is yours. However, your criminal defense attorney will give you advice as to whether it may help or hinder your case. Some things they will help you consider are:

  • You have a constitutional right to remain silent. While anything you say can be used against you, your silence cannot be used against you. The prosecutor may not comment on your refusal to testify; jurors may not infer guilt based on your silence.
  • You are presumed innocent, until the government proves you guilty, beyond a reasonable doubt. So you do not have to prove your innocence; the government has to prove your guilt.
  • The jury’s verdict must be unanimous. The prosecution must convince all the jurors of your guilt beyond a reasonable doubt. This is a heavy burden.
  • Cross-examination is not a casual conversation. It is a fight that is not for the weak of heart. If you take the witness stand, the prosecutor will take advantage of every opportunity to undermine your credibility and poke holes in your version of events.

If you decide to testify, your testimony will be the most anticipated and highly scrutinized evidence presented at the trial. If the jurors don’t believe you, you will be convicted. Your case will hinge on your credibility, more so than any other testimony or evidence presented in the case.

Q: What happens if I am found “not guilty”?

A: If you were found not guilty then those charges can no longer be used as a basis to hold you in custody. You are released from the criminal justice system. You are entitled to your bail money; you are no longer under any pretrial supervision; and you cannot be tried again by the same entity/sovereign authority for any crime arising from the same set of circumstances.

Q: What happens if I am found “guilty”?

A: If you are found guilty, the judge may order that your bail be “revoked” and that you be placed in custody pending sentencing. If you are already in custody, the judge may also revoke your bail so that you cannot be released upon raising sufficient funds to make bail. The judge will set a date for sentencing and may order pre-sentence reports and investigations, in order to learn more about you. Alternatively, the judge may immediately proceed to sentencing on the same day you are found guilty, although this usually occurs only after bench trials and in cases involving less serious crimes where incarceration is not likely part of the sentence.

Q: What is a “hung jury”?

A: A “hung jury” is a jury that is unable to come to a unanimous decision with regard to whether a defendant is guilty or not guilty. When this occurs, the judge will declare a “mistrial.” The prosecution then will have to decide whether to try the defendant again.

Q: Do I need a lawyer if I plan to plead guilty?

A: Although you can plead guilty without an attorney, it is not advisable. Given all that is at stake, anyone charged with a crime should seek legal representation immediately, before making any case-related or life-altering decisions.

Q: What should I expect at my first meeting with a criminal defense attorney?

A: At your first meeting with a criminal defense attorney, expect to:

  • Discuss the circumstances of your arrest: What happened? Who was there? What did the police do or say? What did you do or say? Etc.
  • Share everything you know about the circumstances leading to and surrounding your arrest and the charges against you. Withholding information from your attorney or giving misinformation may hurt your defense, as it may blind-side your attorney at a later date and negatively affect your defense strategy. Remember, your attorney has a professional responsibility to keep all your discussions confidential, so don’t hold back.
  • Discuss your concerns, including how a conviction or incarceration may affect you or your family, and what your possible exposure is.
  • Discuss the cost of representation, payment plans, etc
Q: How can a criminal defense attorney help me?

A: The criminal justice system is a complex and powerful entity. An experienced criminal defense attorney will understand the system, knows the rules, and speaks the language of the prosecutor. All of which can help level the playing field. A knowledgeable criminal defense attorney can:

  • Investigate the charges against you. Your criminal defense attorney will visit the scene of the crime scene of the crime; interview witnesses; review official reports and other documents; and examine the physical evidence. Unlike the police investigation, your attorney’s investigation will consider the facts with an eye toward finding holes in the evidence, gaps in proof, inconsistencies, and anything that might give rise to reasonable doubt.
  • Scrutinize the officers’ conduct. Did the officers’ conduct, in connection with your arrest and/or in gathering the evidence against you, violate your constitutional rights? If so, your attorney can bring a motion to have the evidence suppressed.
  • Stand between you and the government. The law and procedures that govern a criminal case are complicated. Unless you have studied and trained in law, it is impossible for you to know all of your rights or when those rights are being violated. Your criminal defense attorney can help you assert your rights and protect you from an overzealous prosecutor.
  • Develop a theory of plan of defense. Did you act in self-defense? Do you have an alibi? Are the charges against you based on the claims of an unreliable eyewitness? Depending on the facts of your case, you’re attorney can help you formulate and present a coherent theory or plan of defense.
  • Represent you at trial. Your attorney will work on your behalf to select a jury and present your defense to the jury.
  • Help you make the big decisions required of a criminal defendant. A knowledgeable criminal defense attorney can offer wise counsel, based on experience, to help you make the many strategic decisions you will have to make as your case travels through the criminal process.
  • Communicate with your family. Your family will be worried about you. Your criminal defense attorney can serve as an intermediary between you and your family and the criminal justice system, helping to ease their anxiety.