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Criminal Defense FAQs

  1. What is the flow of a criminal trial?
  2. What is an accomplice and conspirator?
  3. When do the police need an arrest warrant?
  4. If I am arrested, do the police need to read me my rights?
  5. What will a judge do if the police do not read me my rights?
  6. How do I assert my right to make no statement?
  7. How aggressive can the police be when questioning me?
  8. Can an arrestee be forced to give bodily samples for DNA and blood testing?
  9. Can the police pull me over at a roadblock for questioning?


1. Anatomy of a Criminal Trial

Most Criminal Trials follow a uniform set of procedures. The many rituals associated with modern trials have developed over centuries. America's common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. Assuming that the trial is carried out to completion, those procedures are as follows:

Decision by Judge or Jury. The defense generally decides whether a case will be tried to a judge or a jury, but in some jurisdictions both the prosecution and the defense have the right to demand a jury trial.

Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called "voir dire." In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own.

Evidence issues. The defense and prosecution request the court, in advance of trial, to admit or exclude certain evidence. These requests are called motions "in limine."

Opening statements. The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. Because neither side wants to look foolish to the jury, the attorneys are careful to promise only what they think they can deliver. In some cases, the defense attorney reserves opening argument until the beginning of the defense case.

Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor.

Cross-examination. The defense may cross-examine the prosecution witnesses.

Redirect. The prosecution may re-examine its witnesses.

Prosecution rests. The prosecution finishes presenting its case.

Motion to dismiss (optional). The defense may move to dismiss the charges if it thinks that the prosecution has failed to produce enough evidence -- even if the jury believes it -- to support a guilty verdict.

Denial of motion to dismiss. Almost always, the judge denies the defense motion to dismiss.

Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses.

Cross-examination. The prosecutor cross-examines the defense witnesses.

Redirect. The defense re-examines the defense witnesses.

Defense rests. The defense finishes presenting its case.

Prosecution rebuttal. The prosecutor offers evidence to refute the defense case.

Settling on jury instructions. The prosecution and defense get together with the judge and craft a final set of instructions that the judge will give the jury.

Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it and explaining why the jury should render a guilty verdict.

Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it and explaining why the jury should render a not guilty verdict -- or at least a guilty verdict on a lesser charge.

Prosecution rebuttal. The prosecution has the last word, if it chooses to do so, and again argues that the jury has credible evidence that supports a finding of guilty.

Jury instructions. The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges "preinstruct" juries, reciting instructions before closing argument or even at the outset of trial.)

Jury deliberations. The jury deliberates and tries to reach a verdict. Most states require unanimous agreement, but Oregon and Louisiana allow convictions with only 10 of 12 votes.

Post-trial motions. If the jury produces a guilty verdict, the defense often makes post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.

Denial of post-trial motions. Almost always, the judge denies the defense post-trial motions.
Sentencing. Assuming a conviction (a verdict of "guilty"), the judge either sentences the defendant on the spot or sets sentencing for another day.
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2. Accomplices, Accessories, Aiders, and Abettors

Anyone who intentionally participates in a crime may be held responsible for it.

Often people participate in crimes in different ways and to different degrees. For instance, in a bank robbery, one person may enter the bank and conduct the holdup, while another person is waiting in the getaway car and a third person is positioned at a different location as a spotter.

Principals and Accomplices

As a general rule, the law refers to the main actor in a crime as the principal and to assisting persons as accomplices. Technically, an accomplice is one who intentionally helps another to commit a crime.

Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice's pre-crime assistance makes him or her just as guilty as the person who does the deed itself. For example, assume that Lars Senny breaks into a warehouse and steals property belonging to the warehouse owner. Hal Perr would be Lars' accomplice and just as guilty as Lars if Hal takes any of the following steps to assist Lars to commit the theft:

  • Hal works in the warehouse, and drugs the warehouse nightwatchman before leaving work on the day of the theft.
  • Hal cuts the wires to the burglar alarm (or cuts a hole in the fence) so that Lars can enter the warehouse without being detected.
  • Hal is a designer of warehouses, and meets with Lars a week before the theft to review warehouse layouts and exit routes.
  • Hal rents a U-Haul and parks it outside the warehouse on the night of the robbery.
  • Knowing what Lars has in mind, Hal agrees to babysit for Lars' infant child while Lars goes to the warehouse.

To prove that a defendant is an accomplice, the government must prove that the he or she intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to help the crime succeed.

Accomplices, Accessories, Aiders and Abettors, and Principals

If John Keats had been a lawyer instead of the author of the poem, "Ode on a Grecian Urn," he might have written, "How can one be an accomplice? Let me count the ways." To distinguish the criminal culpability of one from another, the common law developed specialized terms for the various ways in which one could be an accomplice. For instance, a "principal in the first degree" was the person who actually carried out a crime. A "principal in the second degree" (an "aider and abettor") was a helper who was present at a crime scene but in a passive role, such as acting as a "lookout." An "accessory before the fact" was a helper who was not present at the crime scene. While some state laws retain the common law terminology, few states make any distinction between the criminal liability of crime perpetrators and their accomplices. All can be punished equally, whether they actually perpetrate a crime or only help bring it about.

Accessory After the Fact

An accessory after the fact is someone who, knowing that a felon has finished committing a crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states, accessories after the fact face far less punishment than accomplices or principals.

Conspirators

Conspirators are two or more people who agree to commit a crime. (The distinction between accomplices and conspirators is that the former are "helpers," while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them commits an "overt act." An "overt act" is an activity that in some way moves a conspiracy into motion.

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3. When do the police need a warrant to make an arrest?

As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a non-serious offense -- such as a simple assault -- and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.

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4. If I'm arrested, do the police have to "read me my rights"?

No. However, if they start questioning you but haven't read you your rights, they can't use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:

  • You have the right to remain silent.
  • If you do say anything, what you say can be used against you in a court of law.
  • You have the right to consult with a lawyer and have that lawyer present during any questioning.
  • If you cannot afford a lawyer, one will be appointed for you if you so desire.
  • If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.

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5. Will a judge dismiss my case if I was questioned without a Miranda warning?

No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.

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6. What's the best way to assert my right to remain silent if I am being questioned by the police?

If you're taken into custody by the police, you don't have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:

  • I want to talk to an attorney.
  • I won't say anything until I talk to an attorney.
  • I don't have anything to say.
  • I don't want to talk to you anymore.
  • I claim my Miranda rights.

If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point -- and any evidence gleaned from that conversation -- will not be admissible at your trial.

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7. How heavy-handed can the police get when asking questions?

Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights, and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.

Defendants often claim that police officers coerced them into talking. And it's just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.

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8. Can a person who is charged with a crime be forced to give bodily samples?

Yes. You might think that being forced to give bodily samples -- such as blood, hair, or fingernail clippings -- is a violation of the U.S. Constitution's protection against self-incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.

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9. I was pulled over at a roadblock and asked to wait and answer a police officer's questions. Is this legal?

Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and minimize any inconvenience to you and the other drivers. The police can't single out your car at a roadblock unless they have good reason to believe that you've broken the law.

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