Arrest and Pretrial Proceedings
The day you are arrested can be one of the worst days of your life, and on that day, your lawyer may be the best friend you have.
If you are already aware that you are a suspect in a criminal investigation, and if you have already hired an attorney (as we hope you have), your lawyer may be able to learn in advance that you are about to be arrested. Sometimes – not always, but sometimes – your lawyer may be able to arrange for you to turn yourself in at a time that will make the arrest process easier for you, perhaps to avoid being taken away in handcuffs in front of your children or your co-workers. Sometimes, however, even if there has been an investigation and your lawyer has been involved, the police will just show up at your house or your place of employment and arrest you.
Once you are arrested, the police will likely want to interview you. They should read to you the familiar Miranda warning: “You have the right to remain silent. If you give up that right, anything you say may be used against you….” Whether the police give you that warning or not, if they want to interview, you should say, “I wish to remain silent, and I want my attorney.” The police should honor that and stop trying to question you, but if they do not, keep repeating it. “I wish to remain silent, and I want my attorney.” If you don’t have an attorney yet, you can say “I want an attorney,” but if you do have one, you should say “my attorney” or otherwise let the law enforcement officers know that you are already represented by counsel.
After you are arrested, you will have an initial hearing in which the judge reads the charges to you, explains the charges and your rights, determines if you are indigent (and if so, appoints a public defender for you), fixes the amount of bail, and enters a plea of not guilty on your behalf.
If you can post the amount of bail set by the judge, you will be released with some conditions, such as travel restrictions. If not, you will be held in jail until your trial. There are two types of bail, cash and surety bond. A cash bail of $10,000 means you (or someone else on your behalf) must deposit with the court $10,000 in cash that will be forfeited if you do not appear at trial; if you appear, the bail will be returned to you (or to whomever posted it on your behalf) or applied to the costs of your case if you are convicted. Bail of a $10,000 surety bond means that you (or someone on your behalf) can contact a bail bondsman who will post a $10,000 bond, basically a promise to pay the court $10,000 if you fail to appear for trial. The bail bondsman charges a nonrefundable fee, typically 10% of the amount of the bond.
Your lawyer will begin to prepare your defense. Sometimes, and if you can afford it, your lawyer may hire a private investigator on your behalf to search out relevant facts on your behalf, rather than simply relying on information from the police investigation. Your lawyer may also send out demands or subpoenas to the State, including the police, crime labs, etc., or to other people, requiring them to deliver to your lawyer certain documents or physical evidence. Your lawyer may interview people who have information about the case and are willing to cooperate with you. You lawyer may depose other people who have information and are not willing to cooperate with you voluntarily. “Deposing” someone means that your lawyer will send a written demand to the person requiring him or her to appear at a certain place (often your lawyer’s office) to answer questions under oath. The deposition will be recorded so a written transcript of the deposition can be created. A person who receives a notice of deposition cannot ignore simply ignore it. If the person fails to appear, the judge in the case can issue a write of body attachment, telling the sheriff to take the person into custody and deliver him or her to the deposition. All these steps are aimed at determining how strong the State’s case is against you and discovering evidence that you may be able to use in your favor.
At some point, your lawyer and the prosecutor will likely talk about a plea agreement, or an agreement between a defendant and the State in which the defendant agrees to plead guilty, often to only some of the crimes charged or to lesser crimes than the ones that are charged with the State agreeing to dismiss the other charges. Usually, the State makes some sort of promise from the State about the sentence will be imposed. For example, it may be for a specific sentence, probation or community corrections. Other times it may be more open or leave the judge with more latitude in sentencing, such as an agreement that the State will ask the judge for sentence not to exceed certain number of years. Sometimes the only promise the State makes is that it will submit to the court no recommendation for a sentence, leaving the judge to decide what the sentence should be considering the defendant’s evidence or arguments. Regardless of the terms, any plea agreement must be submitted to the judge, who has the discretion to accept it or to reject it.
Sometimes a defendant will plead guilty with no agreement from the State. In that case, the defense and the State present their arguments to the judge and let the judge determine the sentence.
In some situation, the prosecutor will conclude that there is not enough evidence to convict the defendant and simply dismiss the charges.
For some types of charges, your lawyer may talk to the prosecutor about a diversion. A diversion is an agreement between a defendant and the State that the defendant will pay a fee and, perhaps, take other actions such as undergo substance abuse counseling. The State agrees to suspend prosecution of the case, leaving it pending for a certain amount of time, and to dismiss the charge if the defendant has no new charges filed within that time.
Unless the charges are dismissed, either with or without a diversion agreement, or the defendant pleads guilty, either with or without a plea agreement, the case will go to trial.
Harshman Ponist’s criminal defense attorneys understand pretrial proceedings and know how to protect your rights during this crucial part of the process. If you have been arrested or think you are going to be arrested, you may contact one of our criminal defense attorneys by calling (317) 964-6000 or by submitting an inquiry using the “Contact Us” form on this page.