Being arrested can be a scary event. Typically, when someone is arrested, they are generally read their Miranda Rights by a law enforcement officer. The Miranda Warning / Rights are essentially a warning to those who are being arrested that they don’t have to say anything.
This warning not only assists in keeping arrestees from incriminating themselves, but it serves to preserve the admissibility in court of anything that they do say. The thing is, this information can be a lot to take in at such a stressful time, and it doesn’t necessarily encompass all of the rights of an individual upon arrest.
Your Rights Granted by the US Constitution
The 8th Amendment of the Constitution
The 8th Amendment grants arrestees the right to bail, and guarantees that the amount should not be excessive. What this means is that once someone has been arrested, an amount will be set by the court that the individual can pay in order to be released from custody pending their trial. It also states that the amount set by the court should be reasonable and not excessive; meaning that the court cannot purposely set bail at such a high level that the defendant will be unable to pay it.
It should be noted however, that while US citizens have the constitutional right to bail, this right can be suspended under certain circumstances. For example, in situations where the court feels that the defendant is a danger to the community or to certain individuals if released, the defendant can be held without bail pending their trial. Situations like this are generally few and far between; the overwhelming majority of cases will usually see bail being granted for defendants.
Your Right to Bail Under the 8th Amendment
Bail is basically a method to get someone accused of a crime out of law enforcement custody until their trial. “Bailing someone out” entails paying a certain amount of money that the court will hold to make sure that the defendant appears before the court at the appointed date and time. When the defendant appears, the bail is refunded (minus any relevant fees) no matter the outcome of the trial.
When setting bail, a judge will take the following two factors into consideration:
- Will the defendant be a danger to the community if released?
- If released, is there a serious risk of flight by the defendant?
As long as the judge doesn’t feel that the community would be in danger or the defendant would fail to show up for court, he or she will set bail for the defendant. When bail is set, it can be expensive, and there are a few things that can be done to attempt to get bail reduced, such as demonstrating that:
- The defendant is not a habitual offender and is not likely to commit the alleged crime again
- The defendant poses no flight risk
- There is zero chance of any danger to the community, should the defendant be released
There are certain things a defendant can do to help ease the court’s mind and get their bail reduced, such as surrendering their passport, having a stable work history, agreeing to wear an electronic tether, and providing character references on the defendant’s behalf. Eventually, a bail reduction hearing will be held and, if all goes well, the defendant’s bail will be reduced.
The 5th Amendment of the US Constitution
The 5th Amendment is most often invoked when a defendant does not want to incriminate themselves on the stand. However, this Amendment grants a number of additional and important rights as well, including: The right to an attorney, the right to testify on your own behalf, the right not to testify, the right to a speedy trial, the right to trial by jury, the right to use the court’s subpoena power to force witnesses to testify, the right of presumed innocence (innocent until proven guilty in a court of law), and the right to cross-examine and confront witnesses.
When council has been obtained, whether it’s through the public defender’s office or through some other means, a defendant can expect their attorney to:
- Act ethically when it comes to defending their client
- Be able to present any and all options to their client as well as their professional opinion(s) on which course of action would be best to take
- The defense attorney will prepare the defense completely, but the defendant must be involved and fully informed throughout the entire process.
- The defense attorney will interview all witnesses
- The defense attorney will compose a defense strategy that will either attempt to prove their client is not guilty, or to minimize the potential punishment.
Misdemeanors and Felonies: Know Your Charges
There are three levels of crimes that someone can be charged with: infractions, misdemeanors and felonies. Infractions are things like speeding or parking violations and usually handled via tickets. The only time someone will end up in court over an infraction will be if they decide to fight it. Misdemeanors, on the other hand, are a bit more serious and the trial usually takes place in the state’s lower court, and can be punishable by up to 1-year in jail. Crimes like shoplifting and DUI are usually misdemeanors.
Felonies are serious crimes like murder, rape, or selling narcotics and are punishable by a year or more in state prison. Felony trials can begin in the lower court, like misdemeanors, but are capable of moving all the way up to the state’s superior court.
When someone is arraigned in court, the process is the same whether they are charged with a misdemeanor or a felony. However, once the arraignment is over, those charged with misdemeanors will have to attend a pretrial in Municipal Court while those charged with felonies will have to attend a pre-pretrial or pretrial hearing.
Regardless of whether one is charged with a misdemeanor or a felony, it is best to obtain legal counsel prior to their arraignment. When a public defender is appointed, they usually have very little time to review the case before the arraignment (and in some cases no time at all) and are therefore not in a position to provide the best defense. The sooner a lawyer is obtained, the more time he or she will have to research the case, meet with the defendant and prepare a defense.
The Court Process
Pretrial Conference
Before a trial, the defense and the prosecution will meet and discuss plea bargains, the case’s strengths and weaknesses on the part of the prosecution, any pretrial motions and other things about the defendant like their past criminal history, personality, etc.
Plea Bargains
Most cases end in plea bargains, which are situations in which the defense agrees to plead guilty to a lesser charge in order to avoid a lengthy trial by the prosecution. One example of a plea bargain would be for a judge to dismiss possession charges against a defendant if he or she agrees to take part in and complete a drug rehabilitation program. Not all judges and prosecutors are open to plea bargaining, and not every charge warrants one. What plea bargains do essentially is allow cases to move quickly through the legal system and increase convictions for the prosecution.
Trial
When no plea bargain is offered or accepted, the case will go to trial. The prosecution will present their evidence, the defense will attempt to refute or discredit it, and a verdict will be reached. If the verdict is innocent, the defendant goes free. If not, the court process will move on to the sentencing phase.
Sentencing
At a sentencing hearing, a judge decides the type and length of sentencing that a defendant will be subjected to. Additionally, witnesses will be allowed to speak to the court and suggest lighter or stiffer sentences, depending on their side in the trial. Lastly, the defendant will usually be allowed to make a statement to the court.
Appeals
When a defendant has been found guilty, they will sometimes have their lawyer appeal the case to a higher court, citing specific flaws in the lower court’s procedure that could result in overturning the decision. It is important to note that an appellate court does not re-try the case, nor do they change any of the facts presented in the preceding trial. What an appellate court does is review any defects in the previous trial, and, if the defense is able to identify substantial issues in the proceedings of the previous trial, a conviction can be overturned.
It isn’t easy to have a conviction overturned on appeal, and seldom are defense attorneys able to successfully identify improper proceedings during a case. However, some of the more common situations in which an appellate court will overturn a conviction are:
- The judge provided improper instructions to the jury
- The prosecutor made improper comments to the jury
- The jury was tampered with
- Evidence was introduced improperly
Expungement
Sometimes, when a person is convicted, the judge will state that a conviction will be expunged after a certain amount of time or if the defendant completes a specific requirement, such as successfully completing a drug rehabilitation program. When a conviction is expunged, it is sealed within the defendant’s criminal record and in most cases is treated as though it never occurred. In some cases though, expunged records can be opened and investigated by law enforcement officers and anyone who runs for office or applies for a government job must state prior convictions, even if they have been expunged.
If you have additional questions regarding your rights as an arrestee, the court process or the bail bond process, please feel free to call us any time. A licensed, professional bail bondsman is available 24/7 and can quickly answer any questions you may have. We can be reached toll-free at 877-422-4591.