Criminal Defense: A Practical Guide
You, a loved one or a friend has been accused of a crime. Perhaps you are frightened of the consequences. Perhaps you are angry that somebody had the nerve to accuse you of a crime. You call up an attorney and want to hear something, anything that may put your mind at ease. You may know some of the facts involved, so you tell the attorney, hoping he or she will tell you it will all go away.
But the overwhelming majority of the time, this is only the beginning of a process, a defense, that will take time to develop. I say that not to agitate you any further. But as any competent criminal defense attorney knows, what you know or may think you know, is only part of the story. A competent criminal defense attorney needs to obtain discovery, that is police reports, witness statements and review all the evidence, physical and otherwise, BEFORE he or she can give you any advice worth anything. Any initial advice you receive over the phone is not worthless, but it is just preliminary. An competent criminal defense attorney needs time, and any initial advice is subject to change over time, as the attorney learns more about the case.
That being said, there are a few things to keep in mind during the initial phase of an investigation or having been accused of a crime.
The Fifth Amendment of the United States Constitution, and the New Jersey Constitution, affords you the Right to remain silent. That means, you cannot be forced to be a witness against yourself. If you invoke the Right to remain silent, the police must stop questioning you, and afford you the right to speak with an attorney. But, like most Rights, it can be waived, and there are circumstances under which the Right does not apply.
Before we get into the basics, ALWAYS invoke your Right to remain silent and DO NOT MAKE ANY STATEMENTS TO THE POLICE. When you are the target of an investigation or accusation, the police are not your friend. They have a job to do. They are attempting to gather evidence to prove, or sometimes disprove, facts that constitute a crime. By making any statement, you start out with a distinct disadvantage. You do not know what the police know. You do not know what evidence they have gathered. You do not know what statements, and from whom, they have obtained. By saying anything, you will only serve to help them, thru testimony, prove facts. Anything you say in your defense can be disregarded as self-serving. Therefore, do not make any statements, until you have spoken to an attorney and reviewed the police reports and evidence with an attorney. Only then, can you and your attorney decide if a statement will help or hurt you.
Many people think, when they hear statement, it only counts after they have been given Miranda warnings. I cannot tell you how many times I have heard a client say “and I wasn’t given my Miranda Rights”. Miranda only applies to a “custodial interrogation”, that means, before police can question you, and before the statements can be admitted in court, you must be in “custody” and the police must be conducting an “interrogation”. But what does that really mean?
If a police officer walks up to you, and you blurt out “I am guilty officer, I stole this sandwich from the Wawa”. You are not in custody. You are not under arrest, and you are free to walk away rather than make any statement. You are also not being interrogated. The police officer is not asking questions designed to elicit an incriminating response. So, spontaneous statements to police without a Miranda warning are admissible in court. No Miranda warnings are required.
Continuing with the stolen sandwich, let us say the police officer walks up to you and says “hey, did you steal that sandwich from the Wawa.” That is an interrogation. It is a question designed to get you to say something incriminating, to admit you stole that sandwich. However, Miranda warning are still not required because you are not in custody. You are not under arrest. While it may not “feel” like it, after all a police officer is asking you a question, you are free to ignore the question and walk away.
What if, seeing you with the sandwich, the police officer arrests you. You have all seen on television the ritual of reading Miranda warnings upon arrest. But instead, the police officer just places you in the back of the police car, and asks you nothing. On the way to the police station, you say “You know, that sandwich was not for me, I was stealing it for a guy named Victor.” Here we have custody, since you are under arrest, but we do not have an interrogation. No questions or statements were made by the police to elicit an incriminating response. Your statement is admissible in court.
More importantly, unbeknownst to you, the police were investigating you and Victor for conspiracy. Again, you do not know all the facts available to the police. You may have thought, by mentioning Victor and deflecting some guilt, you were helping your case. But instead, you just made a statement, admissible in court, which serves to prove that you and Victor may be involved in a conspiracy.
The whole “stolen sandwich” example may sound trivial, but the point is, nothing good can come from making a statement to the police. After you have reviewed all the evidence, in consultation with your attorney, if a statement can be made to help you resolve your case, it can be made at that later time.
An important point regarding statements: remember the police can lie to you, but you cannot lie to them.
Assuming you have been Mirandized and foolishly decide to make a statement. The police can say to you “we don’t need you to make a statement, the evidence we have on you is overwhelming. In fact, we have Victor in the next room, and he says stealing the sandwich was all your idea. You were found with the sandwich, we have you dead to right.” Now, truth be told, all the police have is you in possession of the sandwich. They have no other evidence and Victor is nowhere to be found. If you take the bait, and say something incriminating, the fact the police lied about the evidence and Victor being in the next room does not prevent your statement from being admissible in court.
But what if you say “Listen here, you guys are worried about sandwiches when Victor is a major drug dealer. You should be investigating that.” Now assuming Victor is not a major drug dealer and you are lying to distract the police, you could be charged with obstruction of justice. You have the right to remain silent, you do not have the right to lie to impede or mislead an investigation.
Again, for those of you who think they can out-smart the police, no statements. The police have everything to gain, and nothing to lose by taking a statement or by you running your mouth. You have everything to lose, and nothing to gain. That being said, if you are arrested, police can ask you basic questions without Miranda warnings, but not about any particular crime. In other words, police can ask your name, age, address, occupation, marital status, etc., but not about any crime of which you may have been accused.
With regards to the Right to remain silent, you are in total control. If you assert your Right and refuse to make any statements, the police must stop questioning you. The police must afford you the right to speak with an attorney. If they do not, any statements you make as part of a custodial interrogation will not be admissible in court. With regards to your Rights against search and seizure, you have much less control.
The Fourth Amendment to the United States Constitution, and New Jersey law, prohibit the police from conducting unreasonable searches and seizures. Few areas of criminal law and procedure are more complex than the law surrounding search and seizure. But this is an area of the law where you may have police contact before you get the chance to speak with an attorney. Here are some basic guidelines if you find yourself confronted by police wanting to conduct a search.
If police have a reasonable, articulable suspicion you have a weapon, police may conduct a brief, “pat down” search of your person to see if you are armed and dangerous. Reasonable, articulable suspicion is not probable cause. All police need is some type of indication that they can express that you may be armed. This is a limited search. Police have the right to pat down your outer wear to see if they feel something hard that can be classified as a weapon. If they feel something, they can seize it. If not, the search ends. These cases are fact sensitive so you need to consult with a competent criminal defense attorney if you were subjected to a “pat down” search, and the police discovered evidence.
Just as police can approach you and ask a question, police can request your permission to conduct a search. This is known as a “consent search”. If the consent is voluntary and not based upon any coercion or duress, police need no level of suspicion or probable cause whatsoever in order to ask for a consent search. There is no “Miranda Warning” for obtaining consent for waiving your Fourth Amendment Right against search and seizure. All the police have to do is ask nicely, and as long as you voluntarily say yes, they may conduct a search for anything and everything they want.
DO NOT CONSENT TO A SEARCH. Much like the warning against making a statement, you do not know what evidence the police may have gathered. You do not know what statements the police may have obtained. You do not know, even if you think you do, exactly what the police are looking for. Why would you risk consenting to a search when the police may not even have probable cause to obtain a warrant.
Speaking of warrants, both the United States and New Jersey Constitutions require that police obtain a warrant, in most cases, before executing an unreasonable search or seizure. I say most cases because there are exceptions to the warrant requirement. We already covered one such case. If you consent to a search, police do not need to go obtain a warrant before conducting a search. We also discussed another example in terms of a “pat down” search. If police reasonably believe you are armed and dangerous, they do not need to risk their lives obtaining a warrant before they conduct a limited “pat down” search. Other examples include exigent circumstances, plain view, search incident to arrest, and search and seizure of a motor vehicle. Exceptions to the warrant requirement are very fact sensitive, so you need to discuss the particulars of the search with a competent criminal defense attorney.
In order to obtain a warrant, police must appear before a Judge and articulate facts which constitute “probable cause”. Probable cause requires reliable and sufficient facts to believe that a crime has been committed or is being committed and that the search or seizure will provide evidence of that crime, or in the case of an arrest, that the person seized is the individual who committed that crime. Think of probable cause as a “more likely than not” scenario. Police do not require absolute proof of a crime. In fact, that may be what the search is designed to obtain. But police must articulate facts to a Judge that convinces that Judge that it is likely a crime took place, this is the individual who likely committed the crime, and the search will more than likely result in the seizure of evidence.
To convince a Judge, the warrant must “particularly” describe what the police are looking for and what needs to be seized. The police cannot just go to a Judge and say “we think so and so is a bad guy so we want to search his or her house”. That is not probable cause of anything. The police need to describe the crime, identify the individual with supporting facts, and explain to the Judge exactly what the police are looking for in conducting a search or seizure.
So let us say that the police go to a Judge and provide enough evidence that an individual named “John” is engaged in bank fraud. The police advise that Judge that their investigation shows John bank fraud business from his home computer, and they obtain a warrant to enter John’s house and seize his home computer. We have a warrant that is “particularized”. It identifies the crime, bank fraud, it identifies the individual John, and it identifies what is to be seized.
But let us assume while executing that warrant, police see on the dinning room table a kilo of cocaine. Are the police allowed to arrest John for the cocaine? It was not particularized in the warrant. Of course, they can because one of the exceptions to the warrant requirement is “Plain View”. Anything the police discover in plain view, as long as the police are lawfully located at a place they are authorized to be, can be seized without a warrant and provide a basis for an arrest. This is one of the exceptions I mentioned above to the warrant requirement.
But let us say the police enter John’s home, secure the computer, and then decide “hey, while we are here, let us search John’s whole house for whatever we can find”. In doing so, they find a kilo of cocaine in a basement closet, located in an old suitcase, behind a bunch of old clothes and rubbish. Would this be a valid search? Probably not. Unless they can articulate some connection between the more comprehensive search and the computer which has already been secured, the seizure of the cocaine is outside the particularized scope of the warrant. Remember, the police are only lawfully inside the house because of the warrant. So to exceed the permission granted by the warrant violates John’s Fourth Amendment Rights and the evidence cannot be used against him in court.
John is arrested and his computer provides police with all the evidence they need to convict him of bank fraud. The court suppresses the cocaine found in the suitcase because that was an unlawful search. But upon arresting John, they conduct a search of his person and find cocaine in his pocket. The search of his person is lawful because he is under arrest and the police must inventory everything John has on him. So while the cocaine in the suitcase is suppressed, the cocaine found on John’s person is admissible in court as a search incident to a lawful arrest, another exception to the warrant requirement.
Here again, the facts are critical to any analysis. A competent criminal defense attorney can examine the facts, weigh police conduct, and evaluate the scope of the warrant and if any exceptions apply.
Police have completed their investigation, believe they have probable cause to arrest you, have secured an arrest warrant, and you are under arrest. Most importantly, do not resist or obstruct the police. I do not have to tell you about all the times a person is arrested on a minor charge and shot or killed for resisting. Additionally, it will result in more charges being filed against you. Finally, it will make your case more difficult to manage. If I have a chance of convincing the prosecutor to dismiss the charges against you, it goes out the window if you resisted or obstructed. Here again, nothing to gain, and everything to lose, including your life.
Police have two ways to charge you with a crime or offense. The first is on a summons. If police charge you on a summons, after processing, you will be released and given a court date to appear in court. If you are charged on a warrant, in years gone by, after you are processed, the police would call a Judge who would set a bail. No more.
In 2017 New Jersey enacted bail reform which shifted New Jersey from a system that relied on bail to a risk-based system which relies on setting conditions and monitoring release, or detention. The Probation Department does a “public safety assessment” and “recommends” if an individual should be released with conditions (such as monitoring or house arrest), or if the individual should be detained pending trial. The State can also override the recommendation and file a motion for detention. The final decision is up to a Judge at a detention hearing. If a defendant is detained, he or she must be indicted within 90 days, and trial withing 180 days, or the person may be released from detention. There are, of course, ways to extend the time.
One problem is defendants must have a detention hearing within 48 hours. Meaning, even if you are charged with the most minor offense, and it is placed on a warrant, you are going to sit in jail for up to 48 hours. I recently had a bright young teacher who was falsely charged with simple assault sit in jail the entire weekend, waiting for a hearing, before being released. While the new system may have resulted in less people sitting needlessly in jail, it does impose some hardships on some people who would have been instantly released on a minor bail or ROR.
The next formality is that of indictment. The Constitution requires that before any case proceed to trial, the State must present facts to a Grand Jury and obtain an indictment. This is normally, with very few exceptions, a one-sided presentation of facts to a Grand Jury, and after that, the State requests an indictment. An overwhelming majority of the time, the Grand Jury returns an indictment. This is because the State explains to the Grand Jury that an indictment is just a formal accusation based upon the fact presented to them, and the defendant will have the opportunity to mount a defense at trial.
Prior to indictment, the State will invite you to a “PDC” hearing, or “Pre-Indictment Conference”. After the State provides your attorney with “discovery”, which may or may not be complete and does not usually allow the viewing of any evidence, the State will offer it’s “best plea deal”. There is the opportunity for some negotiating, and your attorney may recommend a plea. In the alternative, there is a program known as “Pre-Trail Intervention” which allow you to do a year probation with certain conditions after which the charges will be dismissed. This is only normally available for Third and Fourth Degree offenses where the defendant has no prior criminal record, and has had no prior diversionary programs such as a conditional discharge. Either way, your attorney will be in the best position to guider you and lay out for you the benefits and consequences.
Many criminal defense attorney websites list various charges and the elements the State must prove in order to obtain a conviction. That information is readily available on the web (Google it). Regardless of the specific charge, what you must remember is the State must prove each and every element of the crime beyond a reasonable doubt. You are not required to prove your innocence. The burden of proof is always on the State and never shifts, except in the case of some affirmative defenses.
For example, theft is generally defined as the “unlawful taking of the property of another”. The State must first prove beyond a reasonable doubt that “you” took the property, and not someone else. Second, the State must prove beyond a reasonable doubt that the taking was “unlawful”. In other words, you were not involved with a lawful repossessing the property, for example. Finally, the State must prove beyond a reasonable doubt that it was the property “of another”. In other words, the State must prove ownership of the property. The more complex the crime, the more complex and numerous the elements. You, on the other hand, can sit there like a potted plant. You do not have to prove anything.
Now, there are certain defenses that require you to provide proof. For example, if you were to claim the right of self-defense, you would be required to provide proof you acted in self-defense. You cannot just claim it and be successful with the defense. Or, if you claim you are not guilty by reason of insanity, you need to provide medical/psychiatric proof that you could not or did not understand the nature of your actions at the time of the crime and could not differentiate between right and wrong. Again, you cannot just claim it and be successful. Other than that, except for certain affirmative defenses, you need not provide proof of your innocence.
But what does “proof beyond a reasonable doubt” mean? It is not proof beyond any doubt whatsoever, so what is reasonable? Well, there is no real way to define it. Each juror must weight their doubts and decide if they are reasonable or fantastic. For example, if there was some evidence that someone else did the crime, would it be reasonable for a juror to conclude that this defendant is not guilty even though the State is accusing this person. Of course. But if there was no evidence that anyone else could have committed the crime, would it be reasonable to conclude maybe aliens did it. Of course not.
If we were to quantify it, there are three burdens of proof. Proof by a preponderance of the evidence is proof which tends to prove something by more than 50 percent. In other words, when we look at the facts, the proofs provided tends to support one side by more than 50 percent than the other. The second burden of proof is clear and convincing evidence. This burden of proof would be supported by 75 percent of the evidence. Finally, proof beyond a reasonable doubt would need to be supported by 95 percent of the evidence. Now, a Judge would never allow such a simplistic percentage-based analysis of the burden of proof. It is more nuanced than a simple mathematical definition. But it helps in understanding that beyond a reasonable doubt requires the maximum amount of proof with the least amount of doubt.
After your attorney has had the chance to review discovery and conduct any investigation he or she feels is appropriate, the attorney may discuss with you the filing of a motion. A motion is a formal request to the Court for a ruling on some issue. Maybe your attorney feels the presentation to the Grand Jury was improper, he or she may ask to dismiss the indictment. Or, maybe your attorney believes there was a problem with a search as we discussed earlier, he or she may move to suppress evidence. Motions can be an effective tool in your defense. A word of caution. The State hates motions, not because you may win, but because it forces them to do extra work. Many prosecutors will take the position once you file a motion, all negotiations to resolve your case are over. Another word of caution. Judges hate frivolous motions. It makes them do extra work for no good reason when their docket is overburdened. Be guided by your attorney as to motion practice. Ignore internet legal research and what your second cousin, once removed, Darryl thinks of your case.
Like it or not, you have exhausted all other means to resolve your case, and we have to fight it out. Mark my word, this is going to be a fight. But fighting does not mean we are going to be rude to the Judge. Fighting does not mean we are going to be disrespectful to the State. We gain nothing and lose everything with those childish tactics. In fact, the opposite. We are going to kill everyone with professionalism, kindness and tact. By the end of this case, we want everyone singing our praise. We want the jury to love us. Now, that does not mean we will not be forceful in our defense and presentation. We will drill down every point in our favor and cross-examine witnesses with vigor but respectfully. Forget what you see on television, all that obnoxious fighting makes for good television, but has little use in the real world. If the jury does not like us, we are dead before we start. They will look for ways to convict. This is as much a popularity contest as any. A good impression goes a long way.
Speaking of the jury, jury selection is one of the most important and difficult aspects of the trial. Cases can be made or broken on jury selection. Yet, it is most difficult because who really knows what is in the heart of a juror? Sure, we have the opportunity to pose questions to jurors, and we can remove some jurors for cause, and some for without cause. But the State also has the opportunity to strike jurors. While you may like a particular juror, the State may remove that person, and vice versa. Remember something else, most jurors do not want to be on a jury. Not only do you have to predict what is in a juror’s heart and mind, you need to consider jury apathy. Nevertheless, a competent criminal defense attorney can guide you through this process and pick the best jury for your case.
After the jury is seated, we have opening statements. Opening statements are easy for the State and a little more difficult for the defense. In fact, some defense attorneys skip opening statements, you can waive them. In my opinion, this is a big mistake. Opening statements are an opportunity to introduce yourself and your client to the jury. It is the first opportunity to get a “feel” from the jurors. Who is paying attention when you speak? Who is making eye contact? Who seems receptive to your presentation? Who is smiling at me or the client?
Now, I say is easy for the State because they know exactly what evidence they intend to present, the order of presentation, which witnesses they intend to call, etc. All they need to do is outline their presentation and sit down. The defense needs to assume what the State is going to present, counter or at lease comment on that presentation, and lay out an alternative theory of the case. It is important not to promise something in an opening statement that you cannot deliver. Jurors are going to be looking, throughout the trial, to see if you “make good” on the thing you said in opening. So, while you may want to lay out the theory of your case, you want to keep your presentation somewhat flexible to see what develops at trial
After opening, the state goes first, presents their case, and along the way the defense can cross-examine the State’s witnesses. The State will present evidence, and the defense can cross-examine the State’s witnesses about the evidence. Cases can be won or lost on cross-examination. But while cross-examination is extremely important, sometimes an attorney may opt not to cross-examine a witness. The witness may not have harmed your case, and even supported, the defense theory of the case. In those rare instances, cross-examination may hurt more than help. A competent criminal defense attorney can guide you through the process and explain his or her tactics as the case is presented.
After the State has concluded it case and rests, most defense attorney make a motion to dismiss, arguing that the State failed to meet its burden of proof and as a matter of law the case must be dismissed. This motion is usually not successful, with the court wanted the jury to make that determination rather than replace its judgement with that of the jury. Nevertheless, I have had Judges dismiss specific counts or charges from the indictment. The court may determine that the State did not present evidence on a specific charge. With no evidence before the jury on a charge, the court should dismiss the charge so as not to waste the jury’s time. The motion does have value if you make specific arguments about the proofs that have been presented, and the lack of testimony or evidence as to a specific charge.
After the State has rested, it is time for the defense to decide, should it mount any further defense. The State’s case could have fallen apart during trial and/or the cross-examination may have been so effective, you do not want to chance putting on witnesses and presenting evidence that would allow the State to recover. No one knows what fact, testimony or evidence will convince a juror one way or the other. If the State’s case is damaged by its own presentation, you might want to let it die. Presenting a defense may only allow jurors to rethink the case and come to a different conclusion.
This bring us to the “big question”: whether I am going to allow you to testify. I should not use the word “allow” because a defendant has a right to testify in his or her own defense, and there is the very rare occasion where I have approved of my client testifying. Putting aside that testifying allows the State to cross-examine you on any prior criminal history, testifying in your own defense is generally a very stupid idea. Remember I said we do not know what fact, evidence or testimony will convince a juror. Testify and allow one juror (or more) to conclude you are lying (even if you are not), and we lose the case. That one juror will spend his or her entire time in the jury room trying to convince the rest you are lying. It is not worth the risk. A competent criminal defense attorney can guide you if this is the rare occasion.
Compared to opening statements, closing statements are straightforward for the defense: attack, attack, attack the State’s case. Point out weaknesses. Point out inconsistencies. Question the credibility of the State’s witnesses. Point out contradictions. Question the evidence. Anything you can do to destroy the State’s case must be deployed in your closing argument. Meanwhile, bolster your theory of the case. Point out facts which support your version of events. Bolster your witnesses, if any. This is you last chance. Make an impression!
Unfortunately, notwithstanding our best efforts, you have been found guilty. Believe it or not, there is such a thing as losing the case, but winning the sentencing. A competent criminal defense attorney may be able to convince the State on a recommended sentence. Being professional and respectful may reap rewards now, but I assure you, acting any other way throughout the trial, would have negative consequences at this point.
The sentence you receive is up to the Judge. In sentencing you, the Judge must consider Aggravating factors and Mitigating factors (Want to know more, Google it). A competent criminal defense attorney may convince the Judge to give you a lesser sentence than that which is being recommended by the State.
Although this is a most unfortunate place to be, it is not time to stop working. The right sentence may allow you to minimize the impact of the conviction on your life, while allowing you to start recovering from this circumstance.