Your Rights When Arrested

If you have been arrested, you have the following rights:

1. YOU HAVE THE RIGHT TO REMAIN SILENT. Do not resist the police officer. Give him your name and address but you do not have to answer any other questions.  Except for your spouse (with marriage certificate), minister, or psychologist or doctor, I am the only person you can speak to with absolute surety that your conversation will not be repeated.  Even with your spouse, or the other professionals listed above there are significant exceptions to this rule so I advise you to speak with me before speaking to anyone else about these matters.

2. YOU HAVE THE RIGHT TO HAVE A LAWYER.  If you are arrested or rearrested do not take any action without consulting with me no matter how long it takes. But please, don’t call the office in the middle of the night and expect us to be there–leave a message.

3. IF YOU CAN’T AFFORD A LAWYER and you need legal advice, ask for it. An attorney must be provided free of charge if you can’t afford a lawyer.

4. YOU DO NOT HAVE TO CONSENT TO ANY SEARCH OF YOUR BELONGINGS, PERSON, CAR OR PROPERTY. If the officer insists, do not resist, but make it clear that you are not consenting!

Have you been arrested and have charges presented against you? You have all of the above rights, as well as the following important legal protections:

1. YOU HAVE THE RIGHT TO A JURY TRIAL. A jury consists of 12 people (and a few alternates) all of whom have to be convinced that you are guilty BEYOND A REASONABLE DOUBT.  If any one of the jurors remains convinced that the state has not proved its case then a conviction cannot be obtained.  The state may be able to retry you if there is a hung jury.  You also have the right to go before a judge only.  If you are charged with a misdemeanor you must elect to have a jury trial within 21 days of your arraignment day.  If I do not hear from you in writing, I will use my own discretion on whether to elect a jury trial, or not.  Please advise me of your wishes.  All felonies automatically receive a jury trial unless you elect to go before a judge only.  All trials are public and should be held in a speedy fashion.

2. YOU HAVE THE RIGHT TO TESTIFY OR NOT TO TESTIFY. No one, including your lawyer, can force you to testify.  Furthermore, if you choose not to testify the prosecutor cannot comment on your silence at trial and it cannot be held against you.

3. YOU HAVE THE RIGHT TO PRESENT AND CROSS EXAMINE WITNESSES. If you have witnesses you wish to present, you can either have them testify voluntarily or force even reluctant witnesses to testify by means of a subpoena. 

4. THE STATE HAS THE BURDEN OF PROOF. The state has to prove each and every element of each charged offense beyond a reasonable doubt.  You do not have to prove anything.  You do not have to present any witnesses or evidence, although you do have the right to present them if you wish.  (These rights are subject to the rules of relevance and other evidentiary rules).

5. YOU HAVE THE RIGHT TO APPEAL ANY CONVICTION.

THE ABOVE RIGHTS LISTED ARE YOUR MOST IMPORTANT RIGHTS BUT ARE NOT AN EXHAUSTIVE LIST. 

7 Things To Know:    

1. Plea Bargains: Frequently clients will wonder why we are discussing a plea bargain with them when they have hired us to vigorously defend them.  As you may guess, the state of the evidence in any given case is not necessarily clear.  Often the evidence against you is not as clear as the prosecutor would like.  More often the evidence against you is not as weak as we would like.  There is one constant in the criminal defense system – nobody knows the outcome for sure until the judge or jury comes back with a verdict.  Given this uncertainty, and the often dramatic choices face between the possibility of months or years in jail if being sentenced after trial or taking a plea to lesser charges with significantly less time, clients will prefer the certainty of a plea to the unknown danger of sentencing after trial.  It is a common belief amongst all defense attorneys that failing to discuss a plea with the client may constitute malpractice.  Discussing a plea does not necessarily mean that we are recommending the plea. You should, however, consider all of your options before committing blindly to any course of action.  You have the final decision on whether to accept a plea.  No one should push you into this decision.  If after careful consideration, you elect to take the case to trial, we will defend you to the utmost of our ability.

2. Drug Court: Drug court is like very intense probation lasting a year or more.  Meetings are weekly and other intense requirements are often imposed.  This program can be intense and difficult.  The benefit for those who succeed can be a dramatically lower sentence.  The program is not easy to get into and is designed for those who truly wish to free themselves from addiction.  Please discuss this with me if you think you are interested and I have not discussed it with you.

3. Other Rehab Programs: Often clients suffer from addictions to drugs and/or alcohol.  These addictions commonly cause intense personal anguish as well as being a significant contributing factor in criminal activity.  The “system,” judges and prosecutors alike, understand and appreciate a sincere and serious effort to “get straight.” Such activities taken immediately after apprehension can be a significant mitigating factor at sentencing.  Do not expect that you can or will be sentenced to such programs in lieu of jail.

4. Witnesses: The most helpful thing that clients can do is give the attorney the names, addresses, telephone numbers of any potential witnesses.  A brief summary of each potential witness’ testimony is also helpful.

5. The Attorney-Client Relationship: The staff of Steve Smith Trial Lawyers strive to maintain a civil and open relationship with each and every client. It is our goal to promptly return letters and phone calls. We know you have questions and want answers now.  We understand that sometimes a client will have feelings of frustration about the slowness of the legal process. This is not uncommon.  Fears or feelings about legal matters are often magnified due to the stress of the situation.  We are always here to help.

6. Lawyers Are Not Magicians: A lawyer’s role is to ensure the client is treated fairly throughout the legal process, to develop and present options to the client, and, if needed, to vigorously defend the client at trial. Lawyers, however, must perform these tasks in light of the realities of the client’s particular legal situation.  We work hard to ensure our clients the best possible outcome, but of course, we cannot guarantee which way a judge or jury will decide. If you are convicted will do our utmost to minimize the impact on sentencing and lighten the possible punishment as much as possible.

7. Keep Things In Perspective: Being a criminal defendant is a highly stressful experience, especially for those who have never experienced the process.  Your life will eventually go on. However, if you feel that the stress is too much to bear without help, do not hesitate to speak with us and we can discuss the wise use of ministers, priests or mental health professionals.