DO I NEED A CRIMINAL DEFENSE LAWYER?
This is the first and most important question. And the best way to answer this question may be to rely on instinct: if your gut feeling is that you should talk to a criminal defense lawyer, you probably are right – seek advice.
The main reasons prompting the need for a criminal defense lawyer are:
- You have been charged in court with a crime. This may occur following an arrest or through a summons to appear in court and answer a criminal complaint or indictment. All people have an absolute constitutional right to the assistance of a lawyer in a criminal court case.
- You have been arrested. If arrested for a potential criminal charge, a referral for criminal charge(s) may be made to the District Attorney in the county of the alleged law violation, or to the prosecutor for the federal district of the alleged violation. If an in-custody interrogation follows the arrest, the person being questioned has an absolute constitutional right to remain silent and to have a lawyer present during the questioning.
- You are being investigated for a crime. Law enforcement officers and prosecutors often contact people directly to answer questions about their alleged involvement in a crime.
Generally, the sooner a criminal defense lawyer is brought into a criminal case or investigation, the better potential results for the client. Do not take a wait-and-see approach to a criminal situation. Do not seek answers to questions about your rights and legal status from police officers and prosecutors who do not have a legal duty to act in a suspect’s best interest.
WHAT IS A MIRANDA WARNING?
Police generally read these rights to individuals about to be questioned in custody. “You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning.”
The Miranda rule was developed to protect the individual’s Fifth Amendment right against self-incrimination. The Miranda warning ensures that people in custody realize they do not have to talk to the police and that they have the right to the presence of an attorney. If the Miranda warning is not given before questioning, or if police continue to question a suspect after he or she indicates in any manner a desire to consult with an attorney before speaking, statements by the suspect generally are inadmissible at trial—they cannot be used against the suspect.
MUST A POLICE OFFICER ALWAYS ADVISE A PERSON OF THEIR MIRANDA RIGHTS BEFORE ASKING A QUESTION?
No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.
IF I AM IN CUSTODY, HOW DO I ASSERT MY RIGHT TO REMAIN SILENT?
A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect`s 5th Amendment rights. Anything that the suspect says after the violation is generally inadmissible as evidence in court.
WHAT IS A SEARCH WARRANT?
A search warrant is a written order issued by a judge that authorizes police officers to conduct a search of a specific location and seize any evidence. Under the Fourth Amendment searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Before a search warrant may be issued, there must be a showing of probable cause.
WHAT IS PROBABLE CAUSE?
There is not a bright-line rule establishing precisely what is and what is not probable case. Probable cause is defined as facts sufficient to support a reasonable belief that criminal activity is probably taking place or knowledge of circumstances indicating a fair probability that evidence of crime will be found. It requires more than a mere “hunch,” but less than proof beyond a reasonable doubt.
IF A POLICE OFFICER KNOCKS ON MY DOOR AND ASKS TO SEARCH MY HOME, DO I HAVE TO LET THE OFFICER IN?
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence. Police are permitted to search your home without a warrant if there are sufficiently exigent circumstances. These include the police have reason to believe that someone’s life is in danger, a suspect is about to escape or someone might destroy the evidence (flush illegal drugs down the toilet). In cases such as these when there is no time for the police to get a warrant, they may search your home without permission.
IF I AM ARRESTED, CAN THE OFFICER SEARCH ME?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person. Under this exception to the search warrant requirement, an arresting officer may search only the person arrested and the area within which that person might gain possession of a weapon or might destroy or hide evidence
CAN AN OFFICER USE FORCE TO ARREST ME?
They are not permitted to use excessive force or brutality when arresting you. If you resist arrest or act violently, however, the police are allowed to use reasonable force to make the arrest or keep you from injuring yourself. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.
ARE YOU UNDER INVESTIGATION?
You should refuse to answer any questions when questioned by law enforcement officials in any potential criminal matter. It is natural to believe that you can convince someone of your innocence or talk yourself out of the situation. In most cases, however, speaking directly with police will significantly impair your ability to present the best possible defense. In short, do not speak to anyone about criminal allegations for which you could be a target.
HAVE YOU BEEN ARRESTED?
If you are arrested, remember that you have the right to remain silent and the right to an attorney. Everything you say WILL be used against you. Police will often promise better or special treatment if you will cooperate and speak freely. But you must understand: police have no legal authority to make agreements that bind prosecutors. Therefore, they cannot make things better for you after charges are filed. An investigator may also suggest that an innocent person has nothing to hide and therefore does not need a lawyer. Don’t fall for that one, either. You have the right to remain silent—innocent or guilty. Again, do not speak to law enforcement authorities without a criminal defense lawyer present.
FREQUENTLY ASKED QUESTIONS
WHAT PREPARATIONS ARE NEEDED FOR MY INITIAL CONSULTATION? WHAT SHOULD I BRING WITH ME?
Your first meeting is a chance for your attorney to get to know you and your situation, and for you to get to know your attorney. It is also the time to get some advice on any immediate issues, and discuss long term strategies. You can prepare by writing down any questions you might have, compiling any documentation you feel is pertinent to your legal situation, and creating notes that include a chronology and summary of the events that have led to the legal matter involved.
If you have been presented with an Agreement to sign, consult with an attorney right away. You need to make sure that you are not waiving important rights.
HOW CAN I MAKE MY TIME WITH MY ATTORNEY COST EFFECTIVE?
Attorney’s fees in most cases are handled on an hourly basis. You can save money by saving your legal counsel time. A few ways you can make your divorce more cost effective include:
- Begin with the best. Changing attorneys is costly, do your homework ahead of time and start with legal counsel who will meet your needs.
- Be prepared and organized for your meetings. Make extra copies of any needed documents, keep them organized and properly labeled.
- Communicate effectively. Consolidate all of your questions and information into one email or phone call.
- Inform yourself. Take the time on your own to learn about divorce in Virginia.
- While this should never be used as a substitute for the advice of experienced counsel, this education empowers you and can help frame your discussions with your attorney.
When you work with McClenney Law Group, you will be working with an experienced legal professional who knows the law and educates its clients. The firm defends your rights and protects your future!