Articles Posted in Pre-Trial Proceedings

The 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.

The 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.

A very common question I get from clients with criminal cases is whether they have to appear for every Court date. Earlier today I received a phone call from a prospective client who is facing a Possession of Stolen Motor Vehicle (PSMV) case in DuPage County. He informed me that he failed to appear for his last court date and the Judge issued a warrant for his arrest with a bond of $30,000. The prospective client asked if I could file a Motion in DuPage County to have the warrant vacated without him having to show up. He also wanted to know whether he would ever have to show up to court if he hired me. Apparently, the prospective client was recently hired for a new job and his employer is not allowing him to take any days off.

The short answer to the question of whether the client has to appear for every court date is yes. Unless excused by the Court, if you are facing criminal charges, you must appear for each and every court date. Just because you have hired your own lawyer does not mean that you do not need to show up for your Court dates. If a warrant for your arrest is issued by a Judge, it is not enough for your lawyer to appear in court on your behalf. In order for the case to continue, the warrant must be executed. This means that you must turn yourself in and appear in Court before a Judge. If you post the Bond, you will be released and given a Court date for your case. If you do not post the Bond, you will be held in custody in County Jail and given a court date for your case to continue.

When you are released on Bond, certain conditions are attached to your Bond. Just because the judge does not specifically tell you about them does not relieve you of your obligation to follow all of the conditions of your Bond. The conditions of your Bond will be spelled out in the paperwork that you are given when you are released from Court or the County Jail following the posting of a Bond. In most cases, the conditions of your Bond will be set forth on one sheet of paper. That piece of paper, which is commonly called a Bond Slip, will contain your name, the amount of your bond, and information regarding your court date, time, and Court location. In addition, your bond slip will have several paragraphs that are pre-printed on the form which will set forth conditions that apply to your release on Bond. If you look closely at your Bond Slip, you will see that you are required to appear for each and every Court date. A further condition of your Bond is that you cannot leave the jurisdiction without approval from the Court. This means that you cannot leave Illinois without approval of the Court. Another condition that applies to every criminal case is that you cannot commit any criminal offenses while you are out on Bond.

Today we are going to talk about hearsay. The legal term, “hearsay,” is one of the most misunderstood legal terms in the law. Last weekend I had a client in my office that I was preparing to testify for a trial that was coming up. I asked the client a couple of questions and the client said that the Court would not allow me to ask that question because it was hearsay. I found myself explaining the term to the client and realize that most people do not really understand the legal meaning and implications of the term “hearsay.” So let me explain what hearsay is and how it could impact your criminal case.

Definition of Hearsay

The definition of hearsay law students are given in law school is as follows: An out-of-court statement being offered for the truth of the matter asserted. As a general rule, hearsay evidence is inadmissible in court. Like most other things in the law, there are exceptions to this rule. So unless there’s an exception, hearsay is inadmissible. If a statement is hearsay, it does not matter if the statement is oral or written. The reason behind not allowing hearsay evidence at trial is to prevent out-of-court, secondhand unreliable statements, to be used in court given their unreliability. In addition to the inherent unreliability of hearsay evidence, it is unfair to the party against whom this statement is being used because the party is unable to cross-examine and challenge the out-of-court statement that is being used against them.

I frequently meet clients who are expecting to be arrested in the near future. This past weekend, I met with a client who was questioned by their employer about some money that was missing. The client admitted to me that they had stolen some checks that have been written to their employer. The client informed me that their employer told them that they had notified the police and the client came to my office asking what they should do when they are arrested. This is a pretty common scenario in my practice. I frequently meet with clients who know that they are in trouble and that the day is coming that they will be arrested and be charged with a crime. Here’s what I told this client, and other clients, who want to know what will happen.

It is important to know that you are under no legal obligation to cooperate with the police when they want to question you about a potential crime that you may have committed. The Fifth Amendment to the United States Constitution gives you the right to not incriminate yourself. This means that you have the right to remain silent and not answer any questions that the police ask you about any crime that you may have committed. Probably the most common mistake that clients make when the police arrest them or question them about a possible crime is that clients think that they can talk themselves out of getting arrested and being charged with a crime. If you did nothing, then I suppose it makes sense to talk to the police. But if you know that you did something wrong and committed a crime, there is no logical explanation for talking to the police. If you know that you committed a crime and you are talking to the police, you will either tell them the truth, or you will lie to them. In either case, talking to the police when you know that you are guilty of a crime is not a smart move. Even if you believe you did nothing wrong, talking to the police and answering their questions is probably not a smart move either. You have no idea what information the police have. They may have incorrect information and by answering their questions, you may be giving their incorrect information more credibility than it deserves. The point of this paragraph is to advise you that if the police start asking you questions about a possible crime, you should immediately demand that they get you a lawyer.

Another common misunderstanding is that the police have to “read you your rights” once you are arrested. The only time the police have to “read you your rights” is when you are being questioned by the police and are you in the custody of the police and are not free to leave. A common example of this scenario is when you are placed under arrest and are taken down to the police station and the police put you in an interrogation room and start questioning you about a crime. In order for the police to be able to use any statements you make in that custodial interrogation, the police have to “read you your rights.” This means that the police have to inform you that you have the right to remain silent and that anything you say can and will be used against you in a Court of law. They also have to advise you that you have the right to a lawyer and that if you cannot afford a lawyer, one will be provided for you for free. Once you make a knowing and intelligent waiver of those rights, the police can question you and any statements you make during the course of the questioning can be used against you in Court. But there is no requirement that the police have to read you your rights once you are arrested.

The title to this article comes from one of the most common questions I get asked by clients who call me to discuss their case. When I ask them what their question is, I’m frequently asked whether the client should have a lawyer for their case.

Many clients do not know the answer to that question because they don’t understand what the implications of a criminal case can be. Sometimes people don’t understand that what they are charged with is a crime. Yesterday I received a phone call from a client who was pulled over by a State Trooper and charged with driving 33 miles per hour over the posted speed limit. The client did not understand that what he was charged with was not a simple speeding ticket. In Illinois, if you are pulled over and charged with speeding 26 to 34 miles an hour over the posted speed limit, you will be charged with a Class B Misdemeanor. What he was being charged with is not a simple speeding ticket but an actual crime. A conviction for driving 26 to 34 miles an hour over the speed limit carries a possible jail sentence of up to six months in jail and a maximum fine of $1,500. If you are charged with driving 35 miles an hour and over the posted speed limit, you will be charged with a Class A Misdemeanor. A Class A Misdemeanor for driving 35 miles an hour over the posted speed limit carries a possible jail sentence of up to one-year in County Jail and a maximum fine of $2,500. Clients who call me with cases like this are frequently surprised to find out that they are charged with an actual crime and not a mere speeding ticket.

Last week I spoke to another client who was charged with a Retail Theft. The client wanted to know whether contacting the store and paying for the items that were shoplifted would mean that the Retail Theft case would be dismissed. I explained to the client that paying the store for the value of the items that were stolen would not cause the criminal Retail Theft case to just go away. The criminal case involves the Prosecutor’s Office. Any decision made about whether the case will be dropped or dismissed is made by the Prosecutor’s and not the store owners or the store security.