Criminal Brochure

It is also constitutionally guaranteed that if you request an opportunity to discuss the matter with a lawyer that the police are obliged to cease and desist in questioning you until that lawyer is present. It is important to remember that the persons who have arrested you are not your friends. Police officers have absolutely no authority to make promises regarding dismissal or reduction of charges for any cooperation. If any such offer is made, get it in writing before making any statement whatsoever.

If you are under arrest you should also not speak to anyone with whom you are placed in a cell.

Sometimes those persons are agents of the police who are seeking special treatment themselves by relaying information you may to them. There is no cell mate privilege, so anything you say is admissible in court as a possible statement against your interest.

Your Right to Bail

Bail is the security given by someone who is arrested to assure his or her appearance before the proper court whenever required.

Every person arrested has a right to bail unless you are charged with the capital offense of first degree murder.

There are three basic types of bail:

1. Commercial bonds purchased through a bail bond agency.

2. Case bonds posted with the court directly.

3. Personal surety bonds, which are the promises of persons, including yourself, who will promise that either they or their property will be held responsible for you not appearing in court.

The judge before whom your case will be heard or any duty court judge assigned to set bail has the authority to set the amount of bail and the type of bail needed in any particular case.

In considering the amount of bail a court will use the following factors:

1. The seriousness of the offense for which you are charged.

2. The weight of the evidence against you.

3. Your previous arrest and conviction record, if any.

4. Your ability to make bail.

5. Your willingness to participate in a drug testing program.

6. The absence of drugs in your system at the time of your arrest.

7. Whether you are already on bond or probation for another offense.

8. Anything else which would affect the probability of your appearance.

We do not recommend purchasing a commercial bond unless it is absolutely necessary. A commercial bondsman will require a percentage of the total bond to be paid as a premium and that amount will be non-refundable.

You should wait to secure the services of an attorney who can request that the court consider reducing the bond amount first if you intend on buying a commercial bond.

If the bail is too significant an amount for you to post, your attorney can ask the court for reduction bail by filing a motion on your behalf. An attorney can also provide the court with the proper documentation so that you, your family, of others, can save money by posting personal security instead of spending what money you may have on a commercial bond insurance policy.

Arraignment

The first formal procedural step in the prosecution of the case for which you will have a court appearance is the arraignment. An arraignment is simply a court proceeding where you are officially informed of what the exact charges will be against you. You will be offered an opportunity to plead guilty, not guilty, no contest, or not guilty by reason of insanity.

A guilty plea will end the matter at that point and you will proceed to sentencing. A no contest plea has to be accepted by the court. It is essentially the same as a guilty plea where you only admit that the facts are true and that it is in your best interest to accept the charge while still maintaining your innocence. The difference between the two is simple. A guilty plea can be used against you in a civil suit for damages while a no contest plea cannot. However, a no contest plea can be used under the habitual offender statute to enhance any penalty you may receive if arrested again.

A plea of not guilty by reason of insanity will result in the court appointing a sanity commission to examine you to determining if you are competent enough to assist your lawyer in preparing your defense. If the commission finds that you are insane then the court will sentence you to the state or federal psychiatric hospital to be released only when you can prove that you will not be a danger to yourself or others.

We suggest that you always plead not guilty if possible. The reasons for this are many, but the most important reason is that it will give your attorney time to determine exactly what evidence, if any, the government may have against you. Also, it will allow some investigation as to any defense you may have and allow some time to negotiate with the government for a plea bargain, if that is in your best interest and you are willing to accept a lesser charge.

Pretrial Motions

After the arraignment date and if you plead not guilty, your attorney will have the opportunity to file pretrial motions to force the state to disclose any evidence, the names and addresses of witnesses, the initial offense report, and the state’s theory of the case.

In addition, special motions, such as motions to suppress any evidence or confessions, motions to limit evidence which may be presented at trial and to examine any test results which the police may have used in order to charge you with the crime. These also will test whether there was any proper and probable cause for them to stop, detain, or arrest you on these charges and whether their activities were conducted according to your constitutional rights to be free from unreasonable searches or seizures or confession methods.

These motions not only help you find out what the case may be against you, but it also allows your attorney to examine part of the state’s case to determine how strong their witnesses’ testimonies may be and to lock the witnesses into a fixed story which they will not be able to change or adjust at trial. They also allow your attorney to test the accuracy of any scientific tests of evidence which may be used against you.

The Plea Bargain

In many cases, this is no bargain at all. After pretrial motions (and sometimes even before) and at some point prior to commencement of a trial, you may be offered the opportunity to plead guilty to a lesser charge.

In most cases, the prosecutor and your attorney will have met and discussed the possibility of a plea. There can be no deal struck without your express permission.

You should know and understand the charges that they are offering to allow you to plead to and the possible penalties.

You should know what the ramifications of your plea may mean in the future for you.

There are many things that should be considered, such as probation, drug treatment, promises of not prosecuting on other charges, fines, etc.

If there is a jail term involved, you should know whether the provisions of parole, probation, good time, or other early release dates may be applicable to you. Also, your attorney should be able to calculate your possible release dates for good behavior.

Finally, a plea bargain usually involves a plea of some kind. In Louisiana, you can plead guilty, no contest, or you may enter a best interest plea.

A guilty plea is of course an outright admission that you did the crime and intended to do so.

A no contest plea is an admission that the facts as stated in the charges can be proved.

You can plead to a charge and still retain the right to seek judicial review of the proceedings, etc. This is called a best interest plea. It usually occurs when there is some legal issue which may be important enough to appeal but which would not affect the outcome of a trial.

Of course, if no plea is entered then the matter will be set for trial. If it is a felony, it will be a trial by jury. If a misdemeanor, the judge will be the Trier of Fact. You can, at some point, always wave a jury trial and choose to be tried by the court if it is a felony.

The Trial

The trial is usually the times when you are finally able to present your case in court. It is also the most frightening part of the process, usually because it is the stage of proceedings where your fate will be decided.

A trial is divided into several parts:

1. Picking the Jury

    First, a jury is selected in a process called voir dire. It is an examination of potential jurors by your attorney for bias or preconceived notions. You should be as attentive to the answers to questions as your lawyer will be. In addition, you should also assess each particular juror for your own personal feeling about them. Insist on having some input into this process with your lawyer. After all, you are the one on trial.

2. Opening Statements

    Once the jury is selected, each side is allowed to make an opening argument. Your defense attorney is also allowed to wait until the close of the state’s case to make an opening statement, although most are usually done in the beginning.

3. Taking of Testimony

    Once opening statements are completed, the taking of testimony begins. When the state has completed the presentation of all of its evidence and witnesses, you and your attorney will be able to present your own witness and testimony.

If you have a prior conviction on you record, it will be unlikely that your attorney will let you tell your side of the story. There are many reasons why you should not testify other than this. You and your lawyer should discuss your testimony at length before you ever take the stand.

4. Closing Arguments

    At the end of you presentation of evidence both parties will have the opportunity to make a closing argument, except that the state will be allowed an additional argument called rebuttal. There can be no response to the state’s rebuttal.

Once rebuttal and closing arguments are complete, the judge will give the jury the legal presumptions and the definition of the crime you are charged with and tell them that they must be convinced beyond reasonable doubt that you are guilty before they can convict you.

Please remember that the trial is never over for you until the verdict has been rendered. The jury is always assessing you from the time you walk into court until the time they have made a formal decision. Therefore, for your purposes, you are on trial at each and every moment until the end.

The Verdict

The decision of the jury will be read out loud in the courtroom. Hopefully it will be in your favor.

If not, you have the right to poll the jury. That is, you can make each juror state in open court what his vote was on your case.

Once the jury has been polled the judge will set a date for sentencing.

You have a right to a three day delay in sentencing.

In addition, the judge will, in all likelihood, request a pre-sentence report so that he can have some general background on you and the facts of the case. If you wish the judge to consider any mitigating factors you should call them to your lawyer’s attention as soon as possible.