Criminal Defense FAQs in Virginia, Maryland & Massachusetts

Our Massachusetts, Maryland & Virginia criminal defense attorneys are frequently asked questions regarding criminal defense.  We hope that the answers you find herein answer some of your basic questions regarding criminal defense 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.

Contact us for a skilled, effective criminal defense in Virginia, Maryland or Massachusetts. You can either call one of our offices in Virginia, Maryland or Massachusetts or send us an e-mail.

• 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.

What should I look for when I am hiring a criminal defense lawyer?

If you need to hire a criminal defense lawyer either for yourself or a loved one, you should first and foremost look at the criminal defense attorney's qualifications. Then you should talk to the lawyer about his/her criminal defense experience and expertise in defending criminal charges. Also, make sure that you inquire about the attorney's experience in defending the specific criminal matter you have been charged with. There are many attorneys who claim to be criminal defense attorneys, but have a very limited trial experience. Make sure the criminal defense lawyer you hire is a seasoned trial attorney. Lastly, make sure the criminal trial attorney you hire has regularly appeared before the judges of the county or city you have been charged in. Each county or city has its own particular nuances and you do not want a criminal defense attorney who does not know about the particular court.

I really want to talk to someone about my criminal case. Is it okay for me to talk with my friends or family about my criminal charges?

Never talk to anyone other than the criminal defense attorney you hire about your criminal charges. Any verbal or written statements you make may be used against you in court of law. When people get arrested for a crime, they are scared and they want to talk to someone who will listen or sympathize with them about their bad fortune. If you are sitting in jail and waiting to get bond, you may want to talk to someone in the jail about your case. DO NOT DISCUSS YOUR CASE WITH ANYONE. People who may be sitting in the same jail cell as yourself will try to rat you out if they think that giving information to the police will get them a better deal in Court. Lastly, do not talk to the Press at all. Let your criminal defense lawyer decide what if anything should be said to the press.

How does a criminal case start?

Most criminal cases start with the police doing some preliminary investigation as whether there is probable cause to arrest a person who they think has committed a crime. If the police think they have probable cause to charge a person with a crime, then they may issue a summons or a warrant for the person's arrest. Once a warrant for a person's arrest is issued, then the person will be formally charged with a crime and taken in to be booked and brought before a magistrate. The magistrate will then set the bond. The bond may be a personal recognizance bond, cash or corporate surety bond, or no bond and other conditions of bond may also be set by the magistrate. Subsequent to the initial determination of bond by the magistrate, the person charged with a criminal act will appear before a judge. The judge will again advise the person accused of a crime of their right to have an attorney and if they cannot have an attorney, they will be provided with a court appointed attorney who is a member of the private bar or a public defender. Then there will usually be a preliminary hearing to determine if there is sufficient probable cause for the case to go forward. If the judge decides that there is sufficient probable cause for the case to go forward. Then one of the following things may happen: a trial date will be set, motions will be filed to resolve pre trial issues and then the matter will be tried before a jury or before a judge called a bench trial or the criminal charge may be set for a plea and then plead out on certain date and the client will be sentenced shortly thereafter by the judge.

What is the difference between a felony vs. a misdemeanor?

First and foremost, a felony charge is a lot more serious criminal charge than a misdemeanor. Generally, a felony conviction will result in a period of jail time in excess of one year and higher fines. A misdemeanor criminal conviction is still a criminal conviction that will appear on your criminal record. However, a misdemeanor is a lesser criminal offense than a felony since the maximum period of incarceration for a misdemeanor is only up to a year and the fines imposed are much lower than a felony generally.

What happens in a criminal trial?

Criminal trials were created to give a person accused of a crime a fair and impartial adjudication where the government is given an opportunity to prove whether the person accused of a crime is innocent or guilty beyond a reasonable doubt.

Can anyone say anything about me in a criminal trial?

No. In a criminal trial, there are certain rules called the rules of evidence that vary from state to state as to what can be introduced against a person accused of a crime. It is very important to hire a lawyer who is very knowledgeable about the criminal rules of evidence. The reason it is so important to hire an extremely experienced criminal defense attorney who thoroughly understand the criminal rule of evidence and rules of criminal procedure is so that you can ensure that your rights are not abridged in a criminal trial. The rules of evidence are very complex and if your criminal lawyer does not know what can or cannot be used against you in a criminal trial, the prosecution may introduce some very damaging evidence against you that may very prejudicial to you.

Is the criminal justice system really designed to afford me the concept of innocent till proven guilty?

Yes, in great part the criminal justice system is designed to provide you with cloak of innocent till proven guilty. However, that does not mean that the prosecution will not try to tear this cloak at every chance they get. That is why it is so very important to make sure you get the best criminal defense possible.

What does it mean to be found guilty beyond a reasonable doubt?

The best way to answer this question is to quote a jury instruction that best sets out in our opinion, the concept of reasonable doubt in a criminal case:

• The burden is upon the prosecution to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt. You shall not speculate or go outside of the evidence to consider what you think might have taken place, but you are to confine your consideration to the evidence introduced by the prosecution and the defense and unless you believe, upon a consideration of all the evidence before you, that guilt of the defendant has been proved beyond a reasonable doubt as to every material and necessary element of the offense charged against him, then you shall find the defendant not guilty.
• The burden resting upon the prosecution to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt . You must limit your consideration to the evidence introduced, and you are not to go outside the evidence to hunt up doubts, nor must you entertain doubts that are speculative or conjectural. If, upon a consideration of all the evidence, you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you shall find him guilty.

What does it mean to make a guilty plea?

A guilty plea is an admission of having committed the crime you are accused of committing. Once you enter a guilty plea, the government does not have to prove you are guilty.

If I am charged with a crime, it is possible to plea bargain?

Yes, you can try to plea bargain with the government about being convicted of a lesser criminal charge or to try an obtain a plea agreement to a sentence that is lower than the maximum penalty you may receive if you plead guilty straight up to a judge without a plea agreement. However, be advised that even if you get a plea agreement from the government, the judge is not bound to accept the plea agreement in part or its entirety. Once you enter a plea of guilty, the judge can totally ignore the plea agreement and sentence you to anything that is within the range of the criminal charge you are charged with.

Does my criminal defense lawyer decide to make a plea bargain or do I decide to make a plea bargain?

The decision of whether to enter into a plea agreement is ultimately one that only the client can make. The benefit of having an experienced criminal defense lawyer assist you in deciding whether to enter into a plea agreement is that you will be able to draw upon the criminal defense attorney's experience in deciding whether you should accept the plea agreement offered by the government or not. Also, an experienced criminal defense lawyer may be able to negotiate a more favorable plea agreement than an inexperienced criminal defense lawyer because the experienced criminal lawyer will be able to evaluate the strengths and weaknesses of the government's case and also will not be "gun shy" about taking the case to trial if necessary.

What other factors should I consider when I am deciding whether to go to trial vs. entering a plea of guilty to a criminal charge?

A person should not only look at the short term consequences of taking a matter to trial vs. a plea, but also the long term consequences. A criminal conviction may have a very long term impact of your future. A criminal conviction may result in you not being able to get certain jobs, affect your immigration status, and take away certain rights you are entitled to as a citizen.

Some attorneys are claiming that they can guarantee the outcome of my case if I pay their fee. Other attorneys are saying no attorney can guarantee the outcome of my case. Who is correct?

No attorney who is honest and ethical can guarantee the outcome of a criminal charge that is pending against you. The only thing any honest and ethical criminal defense lawyer can guarantee a client is that they will do their absolute best for their client. As a general rule, run away from attorneys who you instinctively do not trust.

Criminal Justice - What To Expect in "The System"

What can you expect after your arrest and you're brought into the criminal justice system?

After your arrest - either for a misdemeanor or felony, you'll be "arraigned." This is where you first appear before a judge and enter a plea of guilty or not guilty to the offense charged.

We'll assume you enter a plea of not-guilty, which almost every defendant does at this early stage. The following steps will happen next at the arraignment:

A date for the next procedural event in your case is set by the judge
Any bail requests that you or the prosecutor make are considered
If you can't afford a lawyer, the judge appoints one for you
You may be asked by the judge to "waive time" -- giving up your right to have the trial or other statutory proceedings occur within specified periods of time.

Do I Need A Lawyer At My Arraignment?

At this early stage most people can handle the arraignment proceeding without a lawyer. However, if you has the resources and can arrange for private representation before your arraignment, it's always better to have a lawyer.
Even if you forego hiring a lawyer at the arraignment, it's best to a retain one as soon as possible after your arrest. The first priority is often getting out of jail, and this means getting an attorney to arrange your release. Your attorney can also provide you with valuable information about what's to come in the days ahead.
If you have been represented by a criminal defense lawyer in the past, that's usually the lawyer to call -- assuming you were satisfied with their services. They'll already be familiar with you as a person, and won't have to start from "square one" in order to get the ball rolling on your possible release and ultimate defense.

Defense Attorneys: Well Worth The Expense

Many people ask how much it'll cost to hire a defense attorney. There are no hard and fast rules. Defense attorneys set their own fees, which vary according to a number of factors:

• The Case Complexity. Felony defense usually costs more than misdemeanors, for the simple fact felonies carry greater penalties and are likely to involve more work for the attorney.
• The Attorney's Experience. Generally, less-experienced attorneys set lower fees than their more-experienced colleagues. It's like everything else in life... you get what you pay for.
• Geography. Yes - where you live does play a role. For instance, in Massachusetts or Virginia, legal representation will be higher than say a similar case in rural Maryland. It's simply more expensive to do business in certain areas - and that has a great impact on the going legal rates.

Rules of Thumb: If you are charged with a misdemeanor, don't be surprised to spend in the neighborhood of $1,000-$5,000 in legal fees. In a felony case, a competent attorney may well run from $5,000-$25,000.

Unless you've had prior dealings with your attorney, or are fortunate to have legal help on retainer, most criminal defense attorneys will want all or a substantial portion of the fee paid up front. Contingency fees, arrangements where the lawyer gets paid only if he wins the case, are not allowed in criminal cases.

Self Representation

Let's be frank: If you can afford it, it's almost always in your best interests to hire an attorney. However, in some situations it may make sense to represent yourself. Obviously, the less severe the crime you're charged with, the safer it is for you to represent yourself. For example, minor traffic offenses can usually be handled without an attorney. Even minor shoplifting charges may handled without hiring a lawyer. But, if you've been charged with violent offenses or a felony, legal representation is practically a must.

Before you make any decisions to represent yourself, at the very least learn what the punishment is likely to be if convicted, both immediately and in the future. A crime may have a relatively minor punishment for a first offense, but a much more severe penalty if repeated. There's also the collateral consequences to take into account, such as insurance rate hikes, loss of professional or driving licenses, or even job related repercussions.

It isn't always the severity of the crime that determines whether someone chooses to represent themselves in criminal proceedings.

• As we discussed, if the likely punishment is minor and fine is less than the cost of an attorney, many people will take their chances and see what happens without an attorney.
• If you've been in the criminal justice system before, and already plan to plead guilty (either because the sentence in your case never varies, or you absolutely believe a lawyer won't be able to mount an effective defense) you may choose to take whatever outcome the court dictates. (Not usually a great idea.)
• If you're already in jail awaiting trial, self representation can gain you special privileges, such as access to the jail's law library.

Some defendants purposely choose not to have an attorney for the sole reason of "gaming the system." Self-represented defendants are not bound by lawyers' ethical codes. A defendant who represents himself can delay proceedings and sometimes wreak havoc on an already overloaded system by repeatedly filing motions. However, this approach is inherently risky. When the clock eventually runs out, you can rest assured the court and the judge won't be very receptive to any arguments you might make on your behalf.

There are those who believe that their prior attorney wasn't competent, and figure they can do just as well on their own. This is often a big mistake.

Then there are defendants who believe all lawyers are part of an overall oppressive criminal justice system, and seek to make a political statement by representing themselves. Usually, these people can be counted on to make a total mess of their defense.

Other Defenses: Entrapment, Insanity, Self Defense, Alibis

Entrapment

In most states, "entrapment" as a defense to a criminal charge is raised when overzealous law enforcement agents induce, encourage or otherwise provoke an otherwise innocent person into committing a crime. The theory behind the entrapment defense is that someone shouldn't be punished when it was the government who instigated the matter in the first place.

A valid entrapment defense has two related pieces:

• Governmental inducement of the crime, and
• Lack of predisposition on the part of the defendant to commit the crime

The defendant has the initial burden of proving the government induced him to commit the crime. Then the burden rests on the government to overcome an entrapment defense by proving beyond a reasonable doubt the defendant was already predisposed to commit the crime.

Entrapment occurs when the criminal design starts with law enforcement officers, who plant the idea to commit the crime in the mind of an innocent person, and then convince him to do the crime so they can prosecute him.

"Predisposition" focuses on whether the defendant was an unwary innocent who, but for the encouragement of the officers, wouldn't have committed the crime in the first place.

The fact that law enforcement agents provide the opportunity or place for the crime doesn't add up to entrapment. Prostitution stings are one example of this. It's only entrapment when the idea for committing the crime is planted in the defendant's mind by law enforcement.

Please be aware, it's exceedingly difficult to prove entrapment. If you plan to use this as a defense, make sure you have an experienced criminal justice attorney on your side. Any law officer who would deliberately entrap a innocent person probably wouldn't hesitate to lie under oath to protect him or her self from possible prosecution or censure.

Insanity and the "McNaghten" Rule

The most popular definition of insanity is the "McNaghten rule," which legally defines insanity as "the inability to distinguish right from wrong."

Some states have amended their laws to include standards of "diminished capacity" or "guilty but mentally ill." The insanity defense is based on the belief that it is inherently unfair to punish people for their criminal acts if they're not mentally responsible for their actions.

There are also some courts allowing defendants to argue that that they understood their behavior was criminal, but were unable to control it. This is sometimes called the "irresistible impulse" defense.

The insanity defense is not used as often as the general population may believe. Judges and juries frequently don't accept it. Plus, a determination of insanity doesn't mean a "get out of jail free" card for the person accused - but rather the defendant is forcibly confined to a mental institution instead.

Incompetent to Stand Trial

"Incompetent to stand trial" refers to a defendant's mindset at time of trial. A person must be mentally able to at least understand the charges and face his or her accusers. A trial usually will not proceed unless and until competency occurs.

Self Defense

The doctrine or defense of "self defense" is what's called an "affirmative defense." The prosecution must disprove self-defense beyond a reasonable doubt.
While the laws to self-defense may vary from state to state, a person is generally justified in using physical force when it's necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by the other person.

This leads us to the question: How much force can you apply in self-defense?

The answer: A degree of force you reasonably believe to be necessary to defend yourself or another person from an illegal use of force on the perpetrator's part.
Deadly Force - Killing the Perpetrator

Can you ever respond to an attack or threat of an attack by using deadly force? Deadly physical force may be used only if you reasonably believe a lesser degree of force is inadequate, and you have a reasonable belief that you or another person is in imminent danger of being killed or of sustaining great bodily injury.

Make My Day Laws

Some states have "make my day" laws allowing a person to use deadly physical force against an intruder they believe has unlawfully entered their home with the intent to commit a crime once inside. These laws assume that citizens have a right to expect absolute safety within their homes, and in case of injury or death these statutes prohibit the perpetrator engaged in the illegal activity (or their families) from coming back and pressing charges against the homeowner.

When Self Defense is No Defense

If you're the one who unlawfully provoked the use of physical force by another person, you can't claim self defense. In other words, if you picked the fight, you can't say you were merely defending yourself - unless you've communicated your withdrawal from the encounter and the other person continues the altercation.
Also, physical force isn't justified where it's the result of an unauthorized combat by agreement. In other words, you can't just beat up on someone in a staged street fight.

Alibi

Unfortunately, this word has negative connotations, probably due to all those crime programs and movies where the obviously guilty suspect says "I got me an alibi!"
In actuality, an alibi is just an explanation or reason why the criminal charges aren't valid - or why you couldn't have been involved in the crime in the first place.
In order to establish an alibi, an individual must be able to provide proof that he or she was not at the scene of the crime. Often testimony from other individuals can be used to establish where the person was, or wasn't. Other records such as videos that are date and time stamped, credit card statements, telephone or work records can help establish the location of an individual at the time the crime was committed.

However - as we've seen with the unfortunate students at Duke University, having even an iron-clad alibi sometimes is not enough to induce the prosecutor to stop continuing the criminal charges. In cases like these - a competent attorney is more than just a good idea - it can well be a absolute necessity. All too often the cards are stacked gainst a defendant - regardless of their actual guilt or innocence.

Sex With A Minor

This has become one of those "hot button" social issues, especially with the popularity of the sensationalist "To Catch a Predator" television exposés.

The age of consent varies from state to state. Even if you could prove you didn't know the victim's actual age, that's no defense if they were under the statutory minimum. The same goes for the defenses of mistake or lack of knowledge. In most states, an adult engaging in sexual intercourse with a person under the lawful age of consent constitutes a violation of law - commonly called "statutory rape." For example:

• In Massachusetts, the age of consent is generally 16, except if a minor 16 or 17 years of age is a virgin (...of chaste life). Then sex is illegal.
• In Virginia, the age of consent is generally 18. A person 18 years old and greater having sex with a 13- or 14-year-old faces a felony charge. A person 18 and older having sex with someone age 15, 16 or 17 faces a misdemeanor.
• In Maryland, the age of consent is 16.

(These are by no means inclusive - each state has their own particular codes and legal standards. If you are at all unsure, consulting with an attorney is your wisest choice.)
Of course, you may have actual defenses to charges of statutory rape or other sexual assault or predator crimes. This is once again an area where consulting with an experienced criminal defense lawyer is absolutely crucial, especially attorneys who've handled sexual assault cases before. The courts and judges won't hesitate to throw the book at you if convicted. And even after your incarceration, you'll still be stigmatized for the rest of your life.

The Ultimate Punishment - Defending Against The Death Penalty

Murder, violent rape, kidnapping - these and other similar crimes may call for the ultimate punishment. The Death Penalty. In these types of crimes, very often the perpetrator leaves behind his or her DNA, either on the victim or at the crime scene.

If you are innocent, DNA is the best way for a defense lawyer to prove it beyond a reasonable doubt.

DNA testing can positively exclude someone as the perpetrator of a crime. But because it's so expensive, and people charged with crime are often poor and dependent on the court-ordered funding for their defense, oftentimes it isn't done.

If you believe you or someone you know has been wrongfully charged with a crime, make sure you ask you lawyer to seek out any possible DNA evidence for testing. If necessary, apply for the court to pay for it.

BUT PLEASE TAKE SPECIAL NOTE! Even though DNA evidence may exonerate you - you are well advised to get that proof BEFORE conviction. Afterwards, it's a long uphill legal battle to introduce or re-introduce new evidence to the courts.