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Articles Posted in Pre-Trial Proceedings

Criminal Defendants do not get to pick and choose when the police come and place them under arrest. However, sometimes the writing is on the wall and you know what’s coming. Either the police are looking for you or attempting to contact you, or your employer is asking questions and you know that you may be in trouble. Either way, you should reach out to an experienced and knowledgeable criminal defense attorney as soon as possible. There is no down side to talking to a criminal lawyer as soon as you think you may be in trouble so you know what to do when (and if) the time comes.

Sometimes, talking to a criminal lawyer early ends up becoming the most important decision you make. If you talk to the police before talking to a lawyer, you may end up making a mistake that you will not be able to recover from. Talking to an experienced criminal defense attorney early on, will give you some idea of what you are facing and what you should do if the police start asking you questions or want you to come down to the police station. When you are initially contacted by the police when they are conducting an investigation, the police have a tremendous advantage over you. You have no clue what the police are doing, have done, who they have spoken to, what evidence they have, and what their intentions are when coming to talk to you. Talking to a criminal defense lawyer before talking to the police will give you some protection from what’s to come.

Signs That You May Need a Lawyer

prisoner-led-away-300x200Last week I was talking to a client about his case and the circumstances surrounding his arrest. He was explaining what the police did and was convinced that his “rights had been violated”. After he told me that “the police did not read him his rights” after he was arrested, I explained to him that a common misperception is that the police must read you your rights once you are arrested. After I explained this to the client, he asked me what rights he had when he was confronted by the police. This got me thinking about what rights citizens have when they are confronted by the police and how a lack of information about the legal rights that citizens have when the are approached by the police has led to so many criminal defendants making mistakes that should not have to be made. Let me discuss.

Let’s start off with this concept: In America, you are innocent until you are found guilty in Court. If you keep this principle in the front of your mind, then everything else I discuss in this article makes sense. I have been practicing criminal law for over 28 years. The biggest mistake that criminal defendants make is that they talk to the police. When you are approached by a police officer an are asked questions, you are presumed to be innocent. The only way to remove that presumption of innocence is if you go to Court and plead guilty, or are found guilty after a trial. Until, and unless that happens, you are innocent. Just because a police officer is asking you questions does not make you guilty of anything. You are under no obligation to prove your innocence. The state has the burden and the responsibility of proving you guilty beyond a reasonable doubt. You also have the absolute right to demand that the state prove you guilty without using any evidence or statements that you made to the police. That is your right as a US citizen. You have the absolute constitutional right to remain silent when the police are questioning you. Yet, most criminal defendants fail to exercise their most important and fundamental constitutional right. It’s the right to remain silent. You have the absolute constitutional right to not cooperate with the police when you are being questioned by them.

Your right to remain silent is found in the Fifth Amendment to the United States Constitution. The famous case that discusses this constitutional right is commonly known as the Miranda case. Your right to remain silent kicks in as soon as you are subject to a custodial interrogation. This means that you have a right to assert your Fifth Amendment right to remain silent and not incriminate yourself if you are considered to be in custody at the time on the questioning. In custody has been determined to mean that a reasonable person looking at the facts and circumstances would determine that you were not free to leave. In the case I discussed at the very top of this post, the client was not read his Miranda rights after he was arrested. The reason that it did not matter in his case was that he did not make any statements to the police that would be considered incriminating. Not only were there no incriminating statements, but there were no statements made that the prosecutor would have any reason to admit in Court.

Miranda-300x200When most people find themselves facing criminal charges, basic human instincts will kick in and they will want to try to talk themselves out of the predicament that they find themselves in. This usually happens early on in a criminal case when the police question you and want to get your side of the story. You always have the right to talk to the police and to testify at your trial, however, that may not always be the best strategy. In my 28-years of practicing criminal law, I can honestly say that the biggest mistake that most criminal defendants make is talking to the police. Sometimes, defendants continue making the same mistake and insist on testifying at trial. I want to talk about what your rights are when you are on trial and why you should think twice about talking to the police and testifying at trial.

The famous court case that discusses your right to remain silent is Arizona v. Miranda. The Miranda decision is famous because of Hollywood and TV crime shows. Everyone knows that the Miranda case gives you the right to remain silent and refuse to testify in court. But there is a little bit more to Miranda that people should be aware of. The Miranda case deals with the 5th Amendment to the United States Constitution. The Fifth Amendment states that you cannot be forced to be a witness against yourself. This means that you cannot be forced to tell on yourself. The Fifth Amendment in the United States Constitution is known as the Right Against Self Incrimination. The Fifth Amendment’s right to remain silent attaches the moment you are the subject of a custodial interrogation. What is critical in determining whether the Fifth Amendment applies to your case is whether you were in custody or not. Generally, whether you are in custody depends on whether an objective person feels that at the time you were questioned by the police, were you free to leave or not. Generally, if you are being questioned by the police and you were not free to leave, that would be a custodial interrogation which requires that you be advised of your right to remain silent and that you freely and voluntarily waive that right.

Your Fifth Amendment right to remain silent is different when it comes to testifying at trial. You are under no obligation to prove that you are not guilty at trial. The government, or the prosecution, has the burden of proving you guilty of each and every element of what you are being charged with Beyond A Reasonable Doubt. However, since you have the right to testify at your trial, only you can wave, or give up, your right to testify at trial. And since you have the right to wave your right to testify, only you can make the decision about whether you want to testify or not. Since you have the constitutional right to testify, or not, if you decide that you will not testify at trial, your decision to waive your right to testify cannot be used against you by the prosecution, judge, or jury. In other words, if you refuse to testify at your trial, if the prosecutor argues to a judge or jury that your refusal to testify shows that you are guilty, that would be improper and would likely lead to a mistrial for making those statements.

Criminal-DiscoveryI often have to catch myself when I’m talking to my clients about their criminal cases. As lawyers, we sometimes use terminology that while it may be common for us, is foreign to most people who are not involved in the criminal justice system every day like we are. The other day I was talking to a client about the status of their criminal case and I mentioned to the client that I was ‘waiting for Discovery’. I didn’t give the terminology a second thought, assuming that the client knew what I was talking about. However, the client made it very clear that they did not understand what I was saying and I realized that most clients probably feel the same way. I want to take this opportunity to describe what Discovery is and why it sometimes takes a long time time for Discovery to be complete.

If you are facing criminal charges, the US Constitution requires that you have a fair trial. Central to the notion of a fair trial in the criminal law is the requirement that you be provided with all of the evidence the prosecution intends to use in Court to prove you guilty of the criminal charges. In order to have a fair trial, there can be no surprises. Criminal defendants have a right to see all of the evidence the prosecution has. But fairness requires more than you be given the evidence that the prosecution intends to use against you. Fairness requires that you be given ALL of the evidence that is in the states possession. This includes evidence that may tend to show that you are not guilty of the criminal charges.

While the Constitution requires that a criminal defendant be afforded a fair trial, the prosecution is also entitled to be treated fairly. That is why the state has the right to be provided with any evidence that a defendant intends to use at trial. The bottom line is that there should be no surprises in any criminal cases. That is basically what the Discovery process in a criminal case is all about. It’s the part of the case where the parties exchange all of the evidence and then determine whether they want to go to trial, or work out a plea agreement to avoid going to trial. It is usually the most important part of a criminal case.

Juvenile-Criminal-Charges-300x200Children are not considered adults until they reach 18 years of age. But what happens if a child, under the age of 18, commits a crime? Can they be charged and prosecuted as if they were an adult, or will the criminal justice system treat them as a juvenile who will be prosecuted in Juvenile Court?

Why Does It Matter?

Juveniles, that are prosecuted in Juvenile Court, are treated much less harshly than adults who are charged with the same crime in Adult Court. For one thing, it is much less likely that the juvenile will be confined in jail. Incarceration for juveniles is reserved for the most serious cases and the most violent and most chronic juvenile offenders. The main focus of Juvenile Court is to rehabilitate the juveniles. Rehabilitation, is just part of the focus in Adult Criminal Court. Adults are prosecuted and punished in Criminal Court so that the public can be protected, a message can be sent to the public, the defendant can be punished, and the defendant can be rehabilitated. Since rehabilitation is just part of the focus in Adult Criminal Court, it is much more likely that a juvenile will be incarcerated if they are prosecuted in Adult Criminal Court. Since the main focus of Juvenile Court is to rehabilitate juveniles, judges have greater flexibility to craft sentences that are less harsh than the sentences that you usually see in an adult criminal case.

Demand-for-Trial-300x201Clients frequently tell me that they want to get their criminal case done quickly. I am frequently told by clients that I should demand a trial immediately so that the case can be finished as soon as possible. It is important to understand what it means to make a demand for trial in a criminal case and why it may not always be the wisest decision to make. I want to take this opportunity to discuss what it means to demand a trial and explain to my readers what the implications of a demand for trial could be so they can make the best decision about how their criminal case should proceed.

According to the Sixth Amendment to the United States Constitution, every criminal defendant has the constitutional right to a Speedy Trial. The Sixth Amendment protects defendants from waiting too long for a trial. We don’t want Defendants to be held in custody, or to be fighting criminal charges, to wait too long before being found innocent. The remedy for the violation of your Sixth Amendment right to a Speedy Trial is dismissal of your criminal case, with prejudice. This means that your case will be dismissed forever and you can never be charged again for that crime.

The right to a Speedy Trial is also set forth in the Illinois Constitution. However, the United States Constitution, and the Illinois Constitution, do not provide details about how much time you have to be tried in a criminal case. The time limits are set forth in a specific Statute in Illinois which provides the details of how much time the state has to bring you to trial once you make a Speedy Trial Demand. If you have been released from jail, the state has 160-days to bring you to trial from the date that you make a formal written Demand for Trial. If you are in custody, the state has 120-days from the date that you made a formal written Demand for Trial to bring you to trial.

Coronavirus-Court-Closings-300x200The Coronavirus outbreak has had a major impact on our daily lives. The pandemic has had a substantial impact on our Court system and on the multitude of criminal cases that are pending in the area-Courthouses. Each County has taken substantial steps to stem the outbreak of this pandemic by limiting Court operations and taking affirmative steps to limit human contact in the Courthouses in the hopes of slowing down the progression of the virus which is at the heart of this problem. While most of the steps taken by all the Courts are similar, there are minor differences between the various counties in the area. I want to take this opportunity to point out what is happening from County to County, and how this may impact you, and your criminal case.

Circuit Court of Cook County

On March 13, 2020, the Chief Judge of the Circuit Court of Cook County, Timothy Evans, issued a Court Order that became effective on March 17, 2020. Judge Evans’s Order provides that all matters pending in the Circuit Court of Cook County are rescheduled at continued for at least 30 days from the original Court date. All the judges will be available to hear emergency matters. Preliminary Hearings, Bond Hearings, and Arraignments, will proceed as originally scheduled. If the parties reach a plea agreement, Judges will be available to accept the Plea Agreements and resolve cases. Traffic and Misdemeanor cases will be continued to the next key date as long as the next key date is at least 30 days from the original Court date. The Order from Judge Evans provides that the Clerk of the Circuit Court will provide postcard notice of the new Court date to the defendant.

Special-Conditions-of-Bond-300x200I often receive phone calls from clients asking me if they can go back home after they are released from jail or whether they can contact their boyfriend or girlfriend or spouse after being released from jail. I usually tell those clients to come to my office and bring all of the papers that were given to them when they were released from jail. It is very important to keep all of your papers with you if you are arrested and released by the Police so that you may appear for court. You should bring all of your paperwork with you when you are meeting with your lawyer.

Typical Conditions of Bond

If you are arrested and released on Bond, you will be required to comply with certain requirements. In Illinois, the typical conditions that will apply to you if you are released on Bond are as follows:

Search-Warrant-300x200In criminal cases, it is common for the prosecution to seek to admit into evidence things that were seized by the police as a result of the search of a residence. One of the first things that a criminal defense attorney does in a criminal case involving the search of a house is to determine whether the evidence seized by the police can be admitted in court.

If the court is convinced that the search of your home was conducted without a Search Warrant, and that none of the recognized exceptions were present, then the search would be considered unreasonable and all of the evidence seized as a result of the search would not be admissible in Court.

As a general rule, the police are required to obtain a Search Warrant if they want to search your home. If the police obtained a Search Warrant, then the likelihood of convincing a Court that the evidence should not be admissible is very low. But if the police searched your home without a warrant, then your lawyer will have a basis to challenge the admission of the evidence in court.

Arrest-Warrant-300x226The other day I received a phone call from a client who is living in New York. The client told me that about 8 years ago, while they were living in Illinois, they were arrested for a felony drug case. They appeared in Court and eventually plead guilty and received probation. While the client was on probation, they moved to New York and never checked in with probation after leaving Illinois. They were just denied a job when a background search revealed an outstanding warrant for a Probation Violation out of Illinois. The client wanted to know what they could do to clear up the warrant and if they could hire me to take care of the warrant without the client having to come back to Illinois. I frequently receive phone calls from people who have outstanding warrants. As a matter of fact, while I was writing this article, I received a call from a client who found out that an arrest warrant was issued against him last night for a Domestic Battery. The client wanted to know if there was any way that I could make a call or do something to avoid him having to turn himself in and appear in Court. Unfortunately, there’s no easy way to take care of an outstanding arrest warrant. Let me explain.

What Is An Arrest Warrant?

An Arrest Warrant is a Court order signed by a Judge authorizing the police to take you into custody and bring you to Court to answer to criminal charges. In order to obtain an Arrest Warrant, a police officer appears in front of a Judge with an affidavit laying out a sufficient factual basis to establish probable cause, more probably true than not true, that a crime was committed and that you are the one that committed the crime. If the Judge is convinced that there is enough probable cause to justify your arrest, the Judge will issue an Arrest Warrant that will usually have a Bond amount that you can post to be released after you are processed by the police and given a Court date to appear to answer to the charges. If you do not appear for a Court date, the Judge will issue a Bench Warrant ordering the police to bring you to Court if they come in contact with you. If you did not appear in Court for a misdemeanor, the Judge will set a Bond at the time the Bench Warrant is issued. If you fail to appear in Court for a felony, the warrant will usually be a “no-bail warrant,” which will Order the police to bring you to Court as soon as possible after you are taken into custody.