Criminal Law Frequently Asked Questions
Please note that these answers are general in nature, are not intended to address a specific legal question, and do not constitute legal advice.
What should I do after I am arrested? Do not say anything—use the “Silence is Golden” rule. Ask to speak to an attorney and indicate that you will not talk to them until you have spoken to an attorney. Do not discuss your case with anyone, including police, probation/ parole officers, family members and (if in jail) your cellmates, guards, etc. Do not write letters about your case to anyone except your lawyer and his employees. It is a good idea to have a written account of the events leading to your arrest, including names and phone numbers of witnesses (if any) to the events.
What is the attorney-client privilege? How do I know that what I tell a lawyer will remain between us? The attorney-client privilege exists when you speak to a lawyer. This means the lawyer cannot and will not disclose to the State anything you reveal about your case or other related matters without your permission. That sort of privilege does not exist between you and your friends, parents or cellmates, so do not discuss the specifics of your case with them; it might come back to haunt you at trial.
Must I give a statement if arrested? Under the Fifth Amendment of the U.S. Constitution, you are not required to say anything that would be self-incriminating. As a result, again, silence is golden—do not say anything. If you are questioned by police officers, prosecutors, and/or other agents of the State, do not enter into any discussions with such persons. If any of them question you as to the facts of the charges or other possible charges, remember, you have the right to have an attorney present to advise you during questioning and the right to end the interview at any time. Use those rights to your advantage; do not be aggressive or abusive toward the officers but, if you are questioned, tell them that you have representation and will not speak with them before discussing the matter with your attorney. If they continue to ask questions, tell them you wish to end the interview until you have discussed the matter with your attorney.
What if I am told that immediate cooperation will help? If you are arrested, ask to speak to an attorney immediately and terminate the interview. Law enforcement officers are trying to solve a case, not look out for your best interests.
What is the general process in a criminal case?
Misdemeanor. In most cases, you will be charged by an “Information” document. You will appear in court within 4 to 12 weeks after your arrest and be offered a plea bargain. If you refuse the plea bargain, you will be offered a chance to go to trial by jury or by judge.
Felony. After being arrested, evidence is presented to a grand jury which is composed of community members chosen at random. The district attorney’s office will present what he believes to be sufficient evidence to obtain an indictment. Once an indictment is obtained, you will appear in court to enter a plea. An indictment is not an indication of guilt; however, it is a serious allegation which must be dealt with appropriately. Once you appear in court you will be asked to plead guilty or not guilty. Generally, one enters a plea of not guilty and puts the State to its proof. The State will review the case and offer a plea bargain. In most cases, there is some give and take in negotiating a plea bargain. If a plea bargain is accepted, the case will be disposed and you will wind up on probation or in the penitentiary. If you do not accept the plea bargain, the case is set on the trial docket.
What function does an attorney serve? Generally, the attorney uses his experience, knowledge and skill to investigate each case, advise clients appropriately, and represent them during negotiations and trial. For example: a) if you are clearly guilty, the object will be to obtain the best possible plea bargain; b) if you are not guilty, the attorney’s role will be to investigate all evidence and point out to the district attorney’s office why you are not guilty; c) if you are guilty of a lesser crime, the attorney’s role will be to show the district attorney’s office why a lesser sanction should be imposed.
Your attorney will usually not, however, make the decision as to whether to try the case, whether to take the case to a judge or jury, or whether you will testify at trial. Those decisions involve your individual rights and must be made by you. While your attorney will advise you as to what he or she believes would be the best course, those decisions are yours alone to make.
What is probation? If you receive probation in Texas, you are usually placed on community supervision and will be ordered to report weekly or monthly to a probation officer. These meetings will ascertain how well you are doing and give you the opportunity to pay your monthly probation fee of $30 to $40. In addition, the probation officer will ascertain whether you have been arrested for new offenses and if you are meeting the terms and conditions of probation. (The conditions of probation typically include obeying all laws of the State of Texas and the United States.) You may be required to give a urine sample in order to detect whether you have been using illegal drugs or alcohol.
What is a plea bargain? Whether or not you are interested in a plea bargain agreement, you need to know that the State offers plea bargain agreements in most cases and once such an offer is made, your attorney is obligated to tell you the terms of the offer. Just because your attorney communicates a plea bargain offer to you does not mean that he or she advises that you take it—your attorney is merely fulfilling his or her obligation by telling you of the State’s position at that time.
What happens if I plead guilty or I am found guilty? While it is this firm’s usual practice to ask to be relieved from appeal cases for which we have been trial counsel, it is your attorney’s duty to inform you that if you are convicted after trial on your plea of not guilty, or if you plead guilty or nolo contendere (no contest) to a jury, you may have the right to appeal your conviction and sentence. If you plead guilty or nolo contendere to the judge and receive a sentence, you may have the right to appeal any matters raised by written pretrial motions.
Where there is a “plea bargain agreement” (a plea of guilty or nolo contendere made by you to the judge in return for the State’s recommendation of a certain penalty) and the judge follows the agreement, you may only have the ability to appeal by permission of the trial judge. If the judge does not follow the agreement and gives you a higher penalty than the agreement, you may have the ability to appeal the sentence without his permission and you may be entitled to withdraw your plea.