What You Should Know About Criminal Defense Before You Are Arrested

What You Should Know About Criminal Defense Before You Are Arrested

Last updated: June 2009

What Is Involved in the Criminal Law Process that Leads to an Arrest?

A person typically makes a complaint. The complaint is investigated by the police and a complaint is filed. The accused person can then be arrested and taken before a judge for a bond hearing.

What Other Way Might I Be Brought to Court?

In felony cases, a determination must be made by an independent body about whether there is enough evidence to charge you in court, this is called "probable cause." This may be done either by a judge in the form of a preliminary hearing, or by a grand jury.

Must I Be Arrested in Order to Be Brought to Court?

No. In some misdemeanor cases the complaining witness files a police report and a complaint. A summons is sent to you telling you to appear in court. In other misdemeanor cases the police may fingerprint you at the station, release you, and then give you a court date. In municipal ordinance violation cases (non-jailable offenses) the police may just give you a ticket. You may then pay the ticket or go to court. In some misdemeanor cases, the complaining witness files a police report and a complaint. A summons is sent to you telling you to appear in court. In other misdemeanor cases, the police may fingerprint you at the station, release you, and then give you a court date. In municipal ordinance violation cases the police may just give you a ticket. You may then pay the ticket or go to court.

What Offenses Can I Be Arrested For?

You can be arrested for any behavior that is classified as a crime by law. Offenses are classified as a felony, a misdemeanor or a petty crime.

Can the Victim of a Crime Threaten to Call the Police Unless I Pay Restitution?

It depends on the situation. Most employers and merchants simply want restitution for their loss. If the allegation against you is true, then restitution may be a better alternative to an arrest and charge in court. Also, the law allows a merchant in a retail theft case to sue you in court for compensation. Once a case is filed in criminal court, it is a crime to offer witness money for not testifying in court. Also, a victim cannot make a false allegation against you.

Should I Report a Crime That I Committed to the Police? What Happens if I Don't?

The decision whether to report a crime you committed is for you to make. The police are only aware of a crime if it is reported to them or they discover the crime and investigate it.

What Should I Do if the Police Are Looking for Me for Questioning?

The police may question you regarding a crime. You don’t have to answer an officer’s question because you have a right to remain silent. However, the state’s attorney may subpoena you to testify before a grand jury in an attempt to gather evidence. You must respond to a subpoena. However, you have a right to have your attorney at this hearing or have one appointed for you if you can’t afford one.

Again, you do not have to answer any question before the grand jury as you have a constitutional right to remain silent and refuse to answer any question that might incriminate you.

What Should I Do If There Is a Warrant for My Arrest?

A warrant may be issued for your arrest without the police first arresting you. It may be that a summons was sent to you and you did not respond, or that the police investigated you and went to the judge for an arrest warrant. The police may call you to turn yourself in or come to your home looking for you. You can check with the clerk’s office if a case was filed in court. You cannot check for an arrest warrant or criminal case online.

How Long Can I Be Held Without Being Charged With A Crime?

If you are arrested without warrant you must be taken before a judge “without unnecessary delay.” The courts have generally held this to be within 48 hours. If you are held beyond this time, any confession you make may be thrown out of court.

Can I Have an Attorney If I Am Detained at the Police Station?

Yes. You can ask to see an attorney when you are detained.  At some Police stations, a free lawyer will come to the police station to protect your rights. 

Who Decides What Charges Will Be Brought Against Me?

The state’s attorney is the sole person that decides which charges are to be brought and prosecuted. Also, in criminal cases it is the state’s attorney who represents the complaining witness in court.

What Rights Do I Have As an Accused?

You have a right to remain silent. The police have to read you your “Miranda rights” which state that you have a right to an attorney and a right to remain silent.

You also have a right to be free from unfair searches and seizure by the police. The police cannot stop or search you for no reason.

You also have a right not to incriminate yourself in court. The police cannot force you to take a lie detector test. Generally, a polygraph or lie detector test is not admissible in criminal cases. If the police violate these rights, any confession or evidence seized in violation of your rights can be thrown out of court by the judge.

What Punishment Should I Expect?

If depends on what the offense is. A felony is punishable by over a year in prison; a misdemeanor is punishable by a year or less in jail and a petty offense is subject to fine only and carries no jail time.

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