Massachusetts, Maryland & Virginia Criminal Justice Judicial Process

Our Massachusetts, Maryland & Virginia criminal defense attorneys are frequently asked questions regarding criminal justice process. We hope that the answers you find herein answer some of your basic questions regarding criminal justice system in Virginia, Maryland & Massachusetts. After you read this, if you wish to talk to our Virginia criminal defense lawyers, Maryland criminal defense lawyers or Massachusetts criminal defense lawyers, please feel free to call us, email us or contact us via our fast on line form. We are here to defend you.

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• In Virginia, we have offices in Northern Virginia, Central Virginia, Hampton Roads/Tidewater area and Western Virginia. The following are our specific office locations in Virginia: Fairfax, Lynchburg, Manassas, Richmond & Virginia Beach.
• In Maryland, we have offices in Rockville & Annapolis.
• In Massachusetts, we have an office in Boston.

The criminal justice system is a complex, confusing and oftentimes harrowing experience - especially for the accused and convicted.

Laws and procedures vary from state to state, plus the federal government has their own set of rules and regulations.

Here are the basics that apply to this overall process:

Crime and Investigation

There are as many ways for law enforcement agents (police, Sheriff's office, federal agents, and so on) to begin the investigative process as there are individual offenses. Shots reported being fired, windows being smashed out in parked cars, domestic disturbances, possible drunk driving being observed, car jacking, theft and robbery ... the list is almost endless. And since municipalities, states and the federal government keep adding to the list of criminal activities - there is never a dearth of incidents to investigate.

Search Warrants

A search warrant is a written order issued by judge or magistrate authorizing the police to conduct a search. This search can be of your person, a location or specific residence. It authorizes the law enforcement official to search for evidence of a crime, and if finding such evidence, seizing it.

Under the Fourth Amendment to the United States Constitution, in order for most warrants to be issued, "probable cause" is necessary.

Probable cause may be based upon direct information, for example an officer's personal observation. It can also be based upon hearsay - so long as the source of the hearsay is reliable, as determined by all of the circumstances.

A search warrant is always required to enter an individual's home, absent extenuating circumstances - known as exigent circumstances. Such exigent circumstances include hot pursuit of a felon, imminent destruction of evidence, preventing a felon's escape, or a real risk of harm to police or others.

Questioning and Interrogation

If stopped by the police or other law enforcement officials investigating a crime, you may be questioned. At this point you are not under arrest. According a recent Supreme Court decision, you are obligated to give the officers your name if asked. They did not address circumstances where giving your name might implicate you in that or another criminal offense - which would violate your Th Amendment rights against self incrimination.

Please take note: As long as you are not being formally arrested, there is no obligation on the part of the police to read you the "Miranda Warning." However, anything you do offer the police in way of explanation can be used against you in a court of law.

If the questioning is routine, your best bet may be just to politely answer the questions as simply as possible. Do not offer any extra information. However, if you think or suspect that you could be involved in a criminal matter, the best advice is: Stay silent! The police may ask you questions, but outside of your name, you have no obligation to answer them.

If the officer does arrest you, then he or she will read you your rights - the Miranda Warning or Miranda Rule.

The three rights are:

• You have the right to remain silent
• You have the right to have an attorney present during questioning
• If you can't afford an attorney, you have right to have one appointed by the state

Once you've been read your rights, you'll be asked if you understand them. You'll be informed that anything you say from that point on can and will be used against you in a court of law. Then you'll be asked if you voluntarily waive those rights.

There's only one consideration here: Except to inform the officers that you understand your rights, say nothing more without an attorney!

No exceptions!

Making an Arrest

There are three basic ways police or law enforcement agents can make an arrest:

• There is probable cause to suspect you have committed or were involved with the crime or criminal activity. This usually requires a search and/or arrest warrant issued by a judge or magistrate.
  
• If the officer sees a crime in progress, they don't need a warrant to arrest the suspect.
  
• If there is sufficient probable cause to believe a person has committed a felony, they may be arrested even if the officer did not actually see the crime taking place. For instance, if a woman Is found raped and beaten in a park, and an officer sees a man near the scene with bloody scratch marks on his face and no plausible explanation, he can arrest the suspect.

To arrest someone in their domicile or home, a warrant is usually required, unless there is sufficient cause to believe the suspect will try and escape beforehand. No warrant is needed to arrest someone in a public place.

If arrested, you must be charged with a crime or released, usually with 24 - 48 hours after the arrest was made. But note, in all practicality, you will be charged with something - even if it's the ubiquitous and often times spurious charge of "resisting arrest."

Filing Criminal Charges

Criminal charges may be filed by police or law enforcement officials either before or after making an arrest. These charges may take the form of a written "complaint," or if from a prosecutor filing written charges, a writ called an "information."

In either case, filing charges allows you (the accused) to be kept in custody awaiting additional proceedings. These are usually arraignment and bail hearings.

In some jurisdictions and in the federal judicial system, a jury of citizens called the "grand jury" are presented with the evidence obtained by the prosecutor to decide if there is probable cause to continue with the judicial process or not. In actuality, this is merely a formality, as in almost every case a grand jury will vote to continue the proceedings. As a former New York State Supreme Court Justice one wryly noted: "A prosecutor can get a grand jury to indict a ham sandwich."

Other jurisdictions use what's called a "preliminary hearing," A judge - and not a jury - considers evidence and decides whether or not that evidence meets the standards of probable cause to bring charges against the individual. As you might have guessed, it's not very often a judge will choose not to indict.

One thing to remember: Being indicted either by jury or judge does not constitute guilt. These are merely accusations. The standard of innocent until proven guilty still applies - at least for now.

Arraignment

After criminal charges are filed against you, you'll make a court appearance known as an "arraignment" usually within 72 hours or sooner after your arrest.

Here you'll be asked to enter a "plea." The four pleas you can make are:

• Guilty: You admit you committed the crime in question.
  
• Not guilty: You state you are innocent of the crime.
  
• No contest: Legally "Nola contendere: I will not contest it " indicating that, while you are not admitting guilt, you do not dispute the charge or charges.
  
• "Standing Mute": You say nothing. The court will then enter a plea of not guilty by default.

During this arraignment process, the court will also set or refuse bail or

Bail/Bond

"Bail" is money or property given as security to ensure that you'll show up for further criminal proceedings.

Bail can be paid in cash, a pledge of property, intangible assets (bankbook accounts, certificates of deposit, letters of credit, and certificates for stocks), and even with credit and debit cards. Or the accused might obtain a bail bond using the services of a bail bondsman.

A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court. In return, they usually charge the defendant 10% of the bail fee as compensation for their services.

If you don't show up for these further proceedings, the bail is forfeited - plus you'll also be guilty of the crime of failure to appear. In most cases bail money is returned at the end of the trial, no matter whether you are found guilty or not guilty of the crime.

If you hire the services of a bail bondsman, be aware the law usually allows them to use the services of bounty hunters should you choose to flee from justice - commonly called jumping bail or skipping bail.

The bounty hunter is paid a portion of the bail the "bail jumper" originally paid through the bondsman. If the fugitive eludes capture, the bondsman, not the bounty hunter, is responsible for the remainder of the bail.

Bounty hunters are also sometimes known as "bail enforcement agents" or "fugitive recovery agents." Unlike police officers, they have no legal protections against injuries to non-fugitives and few legal protections against injuries to their targets.

Denying Bail

A suspect may be denied bail if the judge believes the accused (now called the defendant) may try to flee the country or jurisdiction, or if the judge feels the defendant will fail to appear. Very serious crimes such as murder, kidnapping or aggravated rape will not be granted bail, and others will have attached such a high bail it has the same effect as denying it outright.

Released on ROR

If the offense is a "common or minor crime" (such as trespassing, or in many cases the ubiquitous "resisting arrest" charge ) the defendant will either pay a token amount and be released, or be released without posting bail - which is known as being released in one's own recognizance, or "R.O.R."

Plea Bargaining

A plea agreement or plea bargain, plea deal or copping a plea is an agreement in a criminal case where the prosecutor and defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty or no contest - usually to a lesser offense or one offense out of several - in exchange for some agreement from the prosecutor for a reduced punishment.

While in theory plea bargaining might sound like a equitable way to reduce the case load log jam commonly found in today's courts, in actuality it can also be used as a form of coercion. You might well be innocent, but if the consequences of a conviction mean 20 years behind bars, a reduced sentence of 1 or two starts to sound might good. The prosecutor gets another pelt in his belt, the state doesn't have to go through the expense of a trial, and the defendant gets the short end of the stick. What was that song by Meatloaf... "Two out of three ain't bad"?

In a perfect world, plea bargains wouldn't exist and every defendant would have their day in court, with guilt or innocence determined by an impartial jury and judge, and each side accorded equally competent lawyers. Differences between defense and prosecution funds would not play a role.

The world isn't perfect, jury and judges are often prejudiced, and state prosecutors have almost unlimited resources at their disposal. You as a defendant might find it hard to come up with $5,000 bail money, much less mount a costly and lengthy defense.

Your lawyer will consider many factors in whether or not to recommend a plea bargain. These include:

• The strength of the evidence against you.
• The potential penalties if you lose the case
• If you can afford to pay for expert witnesses, investigations, DNA testing, and a myriad of other tools necessary to prove your innocence.

Discovery

Before trial, you and your attorney have a right to know what evidence and information the prosecutor has against you. Recent revelations notwithstanding about the antics of the Duke rape case prosecutor (now disbarred), information that shows or tends to show the defendant's innocence must always be revealed. This is known as "exculpatory" information.

Trial

If the defendant decides to plead guilty, he or she must do so in open court and with full knowledge that they are giving up their rights by doing so. There have been cases where the party pleading guilty actually did so knowing full well they couldn't have committed the crime in question.

The court, if they suspect a defendant is, for whatever reasons, lying about being the perpetrator of the offense, may require the defendant to recite what's called a factual basis for the plea. Meaning the defendant must testify as to certain facts only the actual guilty party would know.

This requirement also protects a defendant from voluntarily pleading guilty without realizing that their conduct is not actually within the scope of the charges brought against them.

Going to Trial

If you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by:

• Pleading guilty (as mentioned above) or
• Choosing a bench trial (a trial in front of a judge only)

At a bench trial, you are waiving your right to trial by jury and agree to have the facts of your case weighed and decided upon solely by the judge. This is usually requested when the legal issues are complex enough that the defendant believes the jury might not understand all the nuances and implications of the evidence. It may also be the defendant fears the jury would be overly prejudicial due to the nature of the charges or the crime alleged.

Selecting the Jury

Potential jurors may be dismissed "for cause" - meaning that either the prosecutor or defense attorney believes they are incapable of objectively hearing evidence and deciding guilt or innocence by the facts of the case. An avowed racist would not be a good choice as a juror to decide a case where the defendant is one of the classes of people the potential juror hates.

Also to consider is whether the potential juror has pre-existing knowledge of the case (very common in high profile trials), whether they are related to or have any relationship with the defendant and whether or not they are capable of understanding the testimony and the proceeds of the trial.

There's also what called peremptory challenges. Either the prosecutor or defense attorney may dismiss a limited number of potential jurors for any reason or no reason - with the exception being they can't dismiss on basis of race in order to skew the racial composition of the jury.

At trial, evidence is presented to establish guilt. This can be direct witness testimony, where witnesses to the offense are questioned by one or both sides.

Documentary evidence can also be provided, such as deeds, letters, personal logs or diaries, email correspondence, bank statements, credit card bills, frequent buyer cards and other paper or electronic trail items.

Demonstrative evidence< is also used, such as victim or accident scene photographs, weapons used to commit a crime, blood stained clothing and similar articles.

The defendant can of course bring and call to testify his or her own witnesses to defend against the charges, and to confront or cross-examine the witnesses for the prosecution.

After the evidence is submitted, weighed, discussed an finalized, the judge "charges" the jury - gives them instruction on the law. The closing and summary statements are given by the prosecutor and defendant's attorney, and the fate of the defendant then lies in the hands of the chosen jurors.

In very rare circumstances, the prosecution's case is so flimsy, without basis or merit or so riddled with holes and inconsistencies, the court will issue a summary judgment and dismiss the charges out of hand. In these cases - the jury never gets to deliberate. The Duke Rape trial is just such an instance.

The Jury Decides

If the case is not summarily dismissed, the jurors retire into a closed room or venue to deliberate in secrecy. There is no time limit they must adhere to. If it's minutes or a week - that's how long it takes.

Upon reaching a verdict, the finding is read to the defendant in open court.

The jury may find the defendant innocent (acquitted) of the charges brought against them, they may acquit on some charges and pass a judgment of guilty on others (if charged with multiple counts), or they may "hang." A "hung jury" means guilt or innocence could not be determined. This usually results in a mistrial and new legal proceedings. A jury may even convict a defendant of a lesser crime than the charges originally brought.

If found not guilty - then the case is forever closed. The Constitution prohibits double jeopardy - trying someone over and over again for the same offense in order to get a guilty verdict.

If a guilty verdict is returned, the defendant is entitled to an appeal to at least one level of appellate or appeals court. If the case warrants it, an appeal may be made all the way up to the highest levels of appellate courts - usually the State Supreme court or regional appeals courts in the case of federal jurisdictions. Of course, some cases are so important they go all the way to the Supreme Court of the

There are many reasons why a defendant may want to appeal a guilty verdict in a criminal case, including what's called "legal error."

Legal error may include:

• Inadmissible evidence was allowed during the criminal process, including evidence that was obtained in violation of a defendants constitutional rights
  
• Lack of sufficient evidence to support a guilty verdict
  
• Errors by the judge's when instructing the jury in matters regarding the case

Appeals may also be made due to a juror or jurors misconduct, or if newly discovered evidence proves innocence.

Jury Nullification

There is also the little known and less used acquittal by Jury Nullification. In common law, the jury not only has the obligation to convict or acquit on the basis of the facts and beyond a reasonable doubt - they also have the right to judge the law itself. In effect saying: "Yes, the law does prohibit this action, but we the jury nullify that law in this particular case."

Judges have traditionally refused to allow any mention of jury nullification in their courtrooms, and potential jurors are usually screened out if it appears they lean towards applying it to the case at hand. Even sitting jurors have been removed for merely mentioning nullification during their deliberations. Yet jury nullification does exist, evidenced and reaffirmed in 1969 by the United States Court of Appeals:

"We recognize...the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision."

United States Court of Appeals for the District of Maryland: (US vs Moylan, 417 F 2d 1002, 1006 (1969))."

In fact, the only Supreme Court Justice ever impeached was Justice Samuel Chase - for denying a jury's right to judge the law.

Notwithstanding, if a juror doesn't know about nullification, it's probable they won't acquit even if they feel the law is too draconian or unwarranted in the particular situation at hand.

SRIS PC

If you've been charged with a serious crime or misdemeanor - don't fool yourself into thinking you can go it alone. You need the help of experts - and the Massachusetts, Maryland & Virginia criminal attorneys at SRIS PC are those experts.

Our Massachusetts, Maryland & Virginia lawyers are the best in the business, and when it comes to defending you in court, rest assured you'll get the most professional council possible.

Please give us a call to discuss your case. The first consultation is always without cost, and we'll provide you with a totally honest appraisal of your situation.

Here's how to contact us: 888-437-7747