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Criminal Law and Criminal Defense Frequently Asked Questions


What happens if I am arrested?

If you are arrested for breaking a criminal law, the case is taken before a magistrate who may issue a warrant if necessary and set bond for appearance in court. If the defendant cannot post the bond he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with, told his constitutional rights and of the possible penalties. The defendant will enter a plea of guilty or not guilty, bond may be reviewed, and a date for the next hearing will be scheduled.

Can they use force to arrest me?

A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.

Am I entitled to a jury trial?

You have a right to a jury trial, but you must ask for it. If you do not ask for a jury, only the judge will be at your trial. The jury decides if you are guilty or not guilty. Your lawyer should help you make this very important decision.

What is a Miranda warning?

A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answering any questions.

Must a police officer always advise a person of their Miranda rights before asking a question?

No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.

For example: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have been the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary’s statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to.

If I am in custody, how do I assert my right to remain silent?

A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect’s 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court.

But the police officer said that if I talked, he would help me out.

This is something police officers always say. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge.

Can I be arrested for questioning?

No. Police can request that you accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offense. It is not advisable to speak with the police until you have first spoken with your attorney. You should ask for a lawyer or independent witness to be present during questioning.

If you have a criminal problem, you are facing a very difficult opponent in the government. Do not try to take them on by yourself. Contact The Law Office of David E. Swanson today for a free consultation and to make sure that your rights are protected! Call us toll free at 866-632-0290 or email us using the contact form in the left column.