Know Your Rights

Know Your Rights

Know your rights! Your 8th Amendment right is the Right to Bail.  Your 5th Amendment right is the Right to legal Council.

  • You have the right to testify on one’s own behalf.
  • You have the right to remain silent.
  • You have the right to a speedy trial.
  • You have the right to a jury trial (in most cases).
  • You have the right to use courts’ subpoena power to compel witnesses to testify.
  • You have the right of presumed innocence.
  • You have the right to cross examine and confront witnesses.

Things the defendant should expect from and experienced criminal defense attorney:

  • The defense attorney must ethically and actively defend his or her client.
  • The defense attorney must present all options to his or her client with recommendations and professional opinions.
  • The defense must prepare his or her client completely for each step in the legal process, but also, the defendant must assist his or her attorney. The defendant must make sure he or she understands what the attorney is doing and why he or she is doing it before it is done. The defendant cannot wait until after the attorney presents the defense to inquire as to the course of action.
  • The defense attorney must review all possible defense scenarios and evidence and interview all witnesses in support of the client’s case.
  • The defense attorney must develop a theme to the defense. The theme is composed of a powerful defense strategy and a course of action to present reasonable doubt or otherwise minimize exposure or punishments.
  • The defense must show responsibility for the crime is minimal.
  • The defense must show the impact of the crime elicited little damage.
  • The defense must explain mitigating circumstances that led to the crime.
  • The defense must establish weaknesses in the prosecution’s case, such as lack of evidence, or lack of witnesses, or factual inconsistencies.
  • The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
  • The prosecution and defense must mutually desire a reasonable settlement.
  • The impact on the defendant’s family or dependents would be a hardship.

How to plea bargain a good deal:

Remember: the burden of proof is always on the prosecution or State.  Always present yourself respectfully and well-mannered.   

Understanding Bail:

Bail is a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:

  • Is the defendant a danger to the community?
  • What is the likelihood the defendant will flee?
  • Demonstrate the potential crime is not one that the defendant would do again.
  • Demonstrate the defendant is not a danger to the community.
  • Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways:

In order to get the bail reduced, the defense attorney should do the following:

  • Character references
  • Community support
  • Stable employment history
  • Memberships in religious or civic organizations
  • Surrendering the defendant’s passport
  • Agree to electronic monitoring

The court can present several bail release options. These may include:

  • Cash Bail. The defendant is responsible for paying the entire amount of the bail to be released and receive this amount back at the completion of all court appearances.
  • Release on own recognizance. If the judge is convinced the defendant is not a risk, he or she may release the defendant on his or her own recognizance.  YOU MUST BE VERY CAREFUL WHEN THE JAIL PERSONNEL REQUESTS AN INTERVIEW WITH YOU.   FIRST, YOUR LOVED ONE CAN, AND WE RECOMMEND, THAT THEY REFUSE TO MEET WITH ANY JAIL OR COURT EMPLOYEE AND PROTECT ALL OF THEIR RIGHTS TO REMAIN SILENT.  MOST COUNTIES USE THE SAME LAW ENFORCEMENT PERSONNEL OR PROBATION OFFICERS TO INTERVIEW ONCE INMATES ARE BOOKED INTO THE JAIL.   THESE INTERVIEWERS ARE NOT THERE TO HELP YOUR LOVED ONE.  THEY ARE SOLELY THERE TO ASCERTAIN AS MUCH INCRIMINATING INFORMATION AS POSSIBLE.  DON’T FORGET MIRANDA RIGHTS…”ANY THING YOU SAY, CAN AND WILL BE USED AGAINST YOU”  THE THINGS DISCUSSED OR REVEALED IN THIS INTERVIEW CAN BE USED AGAINST YOUR LOVED ONE IN THEIR CASE.  INCLUDING KNOWN ASSOCIATES, FRIENDS, RELATIVES, ASSET SEIZURES, ETC.  YOUR LOVED ONE WILL LOSE ALL CONSTITUTIONAL FREEDOMS IF THEY CHOOSE THIS TYPE OF RELEASE.  THE COURTS WILL INSIST ON ALCOHOL AND DRUG TESTING FOR EVERYONE IN YOUR HOME, CURFEWS, FIREARM REMOVAL OR SURRENDER FROM YOUR HOME.  NO SUCH THING AS A FREE LUNCH FROM THE POLICE.  
  • Surety Bond. The bail agent guarantees to the court that they are responsible if the defendant fails to appear.
  • Property Bond. The court records a lien on the property of the defendant to secure the bail amount.

The Difference Between Misdemeanors and Felonies:

The consequences for misdemeanors and felony convictions are entirely different. The defendant must understand which crime he or she has been charged with in order to understand what will happen if convicted.

Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trails are held in the state’s lower court, sometimes referred to as Municipal Court. Examples of misdemeanor crimes include drunken driving, disorderly conduct, and shoplifting.

A felony crime is punishable by one year or more in a state prison or a penitentiary. Felonies begin in the state’s lower court system but may move up to the state Superior Court, or higher court. Examples of felony crimes include murder, rape, and armed robbery.

The misdemeanor and felony arraignment processes are virtually identical to one another with one exception. In the misdemeanor arraignment process, a pre-trial in Municipal Court is the next step following arraignment. In the felony arraignment process, the next step is a pre-preliminary hearing or a preliminary hearing.

It is recommended that the defendant receive legal representation prior to arraignment. A public defender may have little time to review the case before arraignment or may not even be assigned the case until arraignment. Preparation is key to a successful defense. A private attorney can meet with the defendant prior to arraignment, review the case, and provide the defendant with step-by-step options prior to the arraignment process.

Plea Bargaining

The majority of all cases end in a plea bargain. Plea bargaining is an excellent way to avoid a potiential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant’s successful completion of a rehabilitation program. Some judges and prosecutors are open to plea bargaining, whereas others are not. Plea bargaining enables the judges to move cases through the legal process quickly and increase convictions for prosecutors.

Pre-trial Conference

This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, strengths and weaknesses of the prosecution’s case, pre-trial motions, and intangible factors of the case such as the defendant’s character and past history.

Sentencing

The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court. In addition, in some jurisdictions, the court may ask for a report from the probation department prior to the sentencing of the defendant.

Appeals

After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to review specifically identified flaws in procedure with the possibility of changing the lower court’s decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict.

Once the trial has been completed, the facts have been decided. They can’t be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper issues, he or she may be able to win the appeal. These defects in procedure may include any of the following:

  • The judge’s instructions to the jury were improper
  • The prosecution made improper comments to the jury
  • Jury tampering
  • Improper introduction of evidence

Expungement

The expungement process differs from state to state. Expungement is a legal term for sealing the criminal record. By having a criminal conviction expunged, the conviction will deemed not to have occurred. However, in some cases, even an expunged record is still open for law enforcement purposes. In addition, applicants campaigning for public office or applying for a federal job are required to make their conviction public, even if it was expunged.

Disclaimer for Attorney Resources

This is from excerpts from Miller and Associates (now Imhoff and Associates); criminal defense attorneys (Understanding the Criminal Process from Arraignment to Appeal) booklet. Copyright 2002. All rights reserved.

They say: this is not meant to be a substitute for a licensed criminal defense attorney and should not be relied on as such. Any advice presented in this booklet is general advice meant to assist in a broad scope. Individual cases will vary depending on the specific facts and circumstances specific to the case. Information in this is meant to assist in obtaining favorable results but does not guarantee any outcome. Its goal is to provide basic concepts of the criminal procedure. Because laws and procedures change, please consult with an attorney. Laws and procedures can also be interpreted differently from state to state. Any advice presented in this is not guaranteed nor intended to violate any rules or regulations from the California Department of Insurance.

Amen Bail Bonds or Associates, its staff nor any of its authors, editors, or consultants shall not be liable for any unfavorable outcomes or losses suffered by any reader of this website.

The Legal Truth About Warrants?

Warrants are used in the United States legal system as well as in other countries. Some warrants may expire, while other warrants do not. Therefore, it’s important to know the difference between the various types of warrants to help you understand the U.S. legal system.

Search Warrants
: Search Warrants must be used within a specific time frame or a search warrant will expire. A search warrant is issued by a judge who authorizes law enforcement agencies to search for specific objects, materials or an individual in a specific location at a specified time. For a judge to issue a search warrant, the investigating agencies or law enforcement officers must show probable cause and a valid reason to conduct a search. If a search warrant is not executed within the specified period of time it expires. It is then illegal for any investigator to search a location without first obtaining another warrant from a judge. However, If the police believe that someone’s life is being threatened or endangered and have probable cause they can search a private residence or location without a search warrant.

Can The Police Search me without a Search Warrant?
If the police lawfully arrest you or you are arrested on a previous warrant, they are permitted to search you and the area of your immediate control. This is known as wingspan. An example of this may include searching the glove box of your car or private property where they have apprehended you at the time.

Sneak and Peek Warrant
A sneak and peek warrant is a search warrant authorizing law enforcement to covertly enter a premise without the owner’s or occupant’s permission or knowledge based on the fact they have substantial evidence a crime has been committed. A sneak and peek warrant is usually less intrusive because nothing is physically disturbed or seized during the search. Law enforcement is simply there to gather evidence needed to return at a later date with a traditional search warrant. Sneak and peek warrants work well in illegal drug investigations because they allow investigative teams to search the premises for evidence of chemical and drug paraphernalia.

The Fourth Amendment of the U.S. Constitution guards against unreasonable searches and seizures, and requires any warrant to be judicially sanctioned and supported by probable cause. Under the USA PATRIOT Act signed into law by Congress in 2001, sneak and peek warrants could be used for the first time in U. S. history as standard procedure in investigations. Sneak and peek warrants can apply to any federal crime, including, but not limited to misdemeanors

No Knock Warrant
A no knock warrant may be obtained by law enforcement officers whenever circumstances justify an unannounced entry. No knock warrants authorize officers to legally enter a premise without first knocking or announcing their presence. Reasons to use a no knock warrant include, but are not limited to: the likelihood that evidence of a crime will be destroyed in advance of a known search or for the safety of law enforcement officials by conducting a surprise attack. Federal judges and magistrates can legally issue these warrants after considering all the circumstances. Federal law enforcement officials may apply for such a warrant based on information that such circumstances are present. Even when authorized, a no-knock entry might nonetheless violate the Fourth Amendment if the officers’ have knowledge that the circumstances justifying the warrant no longer exist at the time they execute the search

Criminal Warrants: Criminal warrants are orders signed by a judge to detain a person suspected of committing a specific crime. An arrest warrant is granted when there’s probable cause that a crime has been committed by the person named. Other warrants that may lead to an arrest are alias warrants and bench warrants. Alias warrants are issued when a defendant fails to appear in court after a citation has been issued. An example of this is not showing up on a court date to face a speeding ticket fine. A bench warrant is typically issued after a defendant has been before a judge, but fails to appear for the next scheduled court appearance. Regardless of the reason warrants won’t expire until the matter is resolved and closed by the issuing judge. In other words, arrest warrants don’t just go away after the statute of limitations on the crime has ended. Note: warrants can only be revoked by the issuing judge. The defendant’s attorney has to file a motion to have the warrant removed from your record even if the statute of limitations on the crime itself has passed.

Civil Warrants: Civil Warrants are commonly issued in small claims court cases where civil suits are involved. Civil warrants are issued for a specific jurisdiction, whereas criminal warrants can be valid throughout an entire state. A civil warrant is an order signed by a judge that requires an individual to appear in court for a civil case at a specific location and time. Civil warrants are rarely enforced. So, if an individual fails to appear for the court date he or she automatically loses the case and the other party obtains the favor in the civil judgment. The civil case, along with the civil warrant, is then closed. However, a judge may hold the individual in contempt of court for failure to appear. This is then considered a crime and the judge has the right to issue a criminal warrant for the individual.

 

Traffic Citation Warrants:
Citation Warrants are issued by the police department in regard to traffic infractions. They can be issued for the most serious of traffic offenses down to unpaid parking tickets. Sometimes a person has every intention of paying their tickets, but discovers months later they have failed to do so or contest the ticket for a court hearing. Typically, if you forget to pay a traffic ticket you will receive a second notice in the mail with an increase for late payment. However, failure to comply with the terms of a citation or appear in court for a citation will result in a warrant for your arrest.

Child Support Warrants:

How Does a Child Support Warrant Work? 
If the court finds that a non-custodial parent fails to obey their obligation to pay child support, the spouse or custodial parent can file a complaint against them. In response the court will issue a summons and a court date. A sheriff can serve the summons and papers for the parties involved. If the party that owes child support does not show up for the court hearing then the Judge can issue an arrest warrant for that person.In many states failure to meet your financial obligation can result in the loss or suspension of the person’s license after 30 days. If a non-custodial parent is prosecuted and sent to prison for neglecting their obligations it will show on their criminal record as a federal offense. Delinquent child support payments also show up on credit reports. It’s important to resolve you child support issues to avoid these things from happening.

Federal Warrants:
The U.S. Marshals fulfills nearly 40,000 federal warrants each year and helps state and local agencies to apprehend an estimated 73,000 fugitives annually. A federal warrant is issued when a person is believed to have broken the law or committed a type of offense. The warrant must be issued by a judge or magistrate to be legal.

Federal Rules of the Criminal Process
If probable cause has been established and it’s believed that a criminal offense was committed by the defendant, the judge must issue an arrest warrant to an officer authorized to execute it. The U.S. Marshal Service is usually appointed to execute a warrant to apprehend a criminal. However, if service can more easily be effective by using another law enforcement agency, the U.S. Attorney may appoint or approve an alternate server. The United States Marshals Service is authorized to serve and protect federal jurists, court officers, witnesses, and other persons in the interests of justice where criminal intimidation impedes on the functioning of the judicial process or any other official proceedings.

Properties of Legal Warrants:
1.Contain the defendant’s name. If not known, a name or description by which the defendant can be identified is needed.
2.Describe the offense being charged.
3.Command that the defendant be arrested and brought without unnecessary delay before a magistrate judge. If none is available, a state or local judicial officer is next in authority.
4.Has to be signed by a judge.
5.Summons in the same form as a warrant requiring the defendant to appear before a judge at a specific time and place

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