Most frequently asked questions part 1
By Travis Rice
Here are the most frequently asked questions I get and my casual responses
Q. Do I need a lawyer or a public defender?
A. Public Defenders are lawyers, they are simply court appointed. They are not "free" contrary to popular belief. You may have to pay for them after the case is finished. Also, you must qualify for use of the public defender. Your qualification for the public defender can be done in court or in person through affidavit. The qualifications are based on income, deductions, and assets. A private attorney is one that you hire to represent you. If you are charged with a crime that carries any fines, jail time, or restitution, I would hire an attorney or obtain a public defender.
Q. Why are attorney retainers so expensive?
A. When you pay an attorney to represent you, the attorney must put you on his calendar. Once retained the attorney will make himself available to you to be at the hearings and answer questions. Some attorneys charge more than one retainer, others charge a one time flat fee. These retainers often don't cover trial work. The reason why they are so expensive is because the legal field is very complex and often every case requires a large amount of work. Also, because the field is so complex, attorneys must meet certain qualifications, which usually include gaining a bachelors and a juris doctorate from an accredited law school as well as passing the local bar exam. To get these qualifications it requires thousands of dollars which are usually borrowed from banks or the government in the form of student loans. So in order to make those payments, attorneys need to charge larger fees.
Q. Why wont the prosecutor drop the case I'm innocent?
A. Most of the time you have not provided the State with sufficient cause or evidence to drop the case. Even if your innocent, you must prove that your innocent to them. The prosecutor has looked at your case and has made the determination that you violated the law based on what he has in front of him. So unless you present other evidence the prosecutor likely wont drop the case. It is true that you have a right to a jury trial and that the prosecutor has to prove your case beyond a reasonable doubt, but he has no obligation to drop the case before trial if he believes you are still guilty.
Q. Can the judge just dismiss my case?
A. In Idaho a Judge has the ability to dismiss your case. If the case is a misdemeanor it cannot be refiled against your with the same charges. In reality a Judge normally does not dismiss a case unless there is sufficient legal cause. Judge decide issues of law not facts. So if the law says your case should be thrown out then the Judge will be more in favor of dismissing the case. If it is just a question of fact, then the case will more likley go to a jury trial.
Q. How can they charge me for the Felony again after they dismissed it...?
A. In Idaho the charges on a Felony case can be dismissed and then refiled by the prosecutor. Even if the Court throws it out the charges can be brought again until the statute of limitations (if any) have expired. You cannot be tried twice for the same offense, that is called double jeopardy (and unconstitutional), but that doesn't apply to cases that have been dismissed and refiled.
Q. Why didn't the police charge him with a crime?
A. In Idaho police and prosecutors have discretion in which crimes they charge. It is more than likely a proof problem or the officers simply used discretion in charging you with a crime.
Q. What if the witness doesn't show up to court?
A. If the witness is the complaining witness or the victim of the crime, and doesn't show up to court the case can be dismissed because you have a constitutional right to confront the witness's against you. However there are exceptions.
Q. I thought that something comes off your record after a certain amount of time...why is the prosecutor bringing stuff up from my past?
A. Idaho is a "do not forget state" which means that your criminal history can be used against you no matter on how long its been there. Its very common for prosecutors to bring up offenses that have occurred 10 years prior or more. It will effect your plea, your bond, and likely your sentencing. I personally disagree with this use of criminal history.
Q. Where can I see my criminal record or my court dates?
A. Idaho has a system called Icourtportal. You can look up your court dates through the "hearing" or "smart search" features.
Q. Whats a preliminary hearing?
A. A preliminary hearing is a hearing to establish that their is probable cause to charge you with a felony. Its like a mini trial. You can call your witnesses and cross examine the States witnesses. But its important to remember that more than 70% of the cases go forward to the District Court because the State has a lower burden of proof. The State does not have to prove there is no reasonable doubt, they must prove there case on a preponderance basis. Which is much easier for the State to prove. You should consult your attorney before you make the decision to waive or go through with your preliminary hearing. Usually, there is an offer by the state that is presented to the Defendant prior to the hearing.
Q. Why do I have to be on pretrial release?
A. Pretrial release is a privilege. There is no exclusive right to bail. Technically, a person could be held in the county jail until their trial. Judges consider two main things before they let you out of jail. 1. Judges want to make sure that you will show up at the court dates and not run. 2. The judge wants to make sure that your not a further danger to the community. If the judge feels like you can be released, he or she may put certain conditions in place while you are out of jail to ensure those two things. So while although those conditions may seem tedious or intrusive they are less intrusive than jail and favored.
Q. Whats the difference between a civil case and a criminal case?
A. Civil cases are between two individuals. Things like protection orders, lawsuits, and personal injury cases are civil cases. Criminal cases involve breaking a statute which is codified and involves a penalty which can deprive you of your freedom. Some examples are more like murder, battery, DUI's, No Contact Orders, and felony and misdemeanors.
Q. I have a "pretrial conference," coming up....whats that?
A. A pretrial conference is a meeting where you the defense attorney and the prosecutor agree on what should happen in the case. This can include, taking a plea deal, continuing the hearing, or setting the case for trial.
Q. Why cannot you object to the prosecutor saying bad stuff about me?
A. Life's not like television. Objections must be made in conformance with the Idaho Rules of evidence. These rules are very complex and often times are open to interpretation. Objections should occur during trials, but for most hearings they are commonly not used. If you fail to object during trial you loose the right to appeal the issue. So its important to object at trial if it is not appropriate, however sometimes objections during trial backfire, it makes it look like you are hiding something, so its very important to be on the same page prior to trial with your attorney about how and when to object.
Q. Do I get to pick the jury?
A. Yes. You get to pick from the cross section of the community, your attorney should assist you in doing so. The State also has a say in who the jury is...which means they can strike you picks. So its like you both get to pick the jury.
Q. Do I have to blow into the officers breathalyzer?
A. No. The breathalyzer is optional. However, if you refuse an evidentiary test the officer can charge you with a refusal. Officers may also obtain your blood through a search warrant signed by a magistrate.
Q. Should I talk to an officer about what happened?
A. So many people think that officers can help them if they are honest with them. That's false, officers have the ability to release you from arrest but they do not prosecute the crimes. They can only make recommendations to the prosecutor. Officers generally will use what you say against you. I advise that you should never talk with the police until an attorney is present.
Q. Does my case get thrown out for them not reading me my rights?
A. No your case does not automatically get thrown out because an officer forgot to read you your rights. However, if you made any incriminating statements and the officers didn't read you your rights, you can ask the court to suppress the statements. That means they cannot be used in trial against you. But, they may be used in other hearings or if you plead guilty.
I hope this list was helpful. Not exhaustive but I plan on doing multiple Q/A's.
Helpful links
https://travisriceattorneyatlawpllc.business.site/
Photo By: https://www.drdahan.com/confused/ |
Here are the most frequently asked questions I get and my casual responses
Q. Do I need a lawyer or a public defender?
A. Public Defenders are lawyers, they are simply court appointed. They are not "free" contrary to popular belief. You may have to pay for them after the case is finished. Also, you must qualify for use of the public defender. Your qualification for the public defender can be done in court or in person through affidavit. The qualifications are based on income, deductions, and assets. A private attorney is one that you hire to represent you. If you are charged with a crime that carries any fines, jail time, or restitution, I would hire an attorney or obtain a public defender.
Q. Why are attorney retainers so expensive?
A. When you pay an attorney to represent you, the attorney must put you on his calendar. Once retained the attorney will make himself available to you to be at the hearings and answer questions. Some attorneys charge more than one retainer, others charge a one time flat fee. These retainers often don't cover trial work. The reason why they are so expensive is because the legal field is very complex and often every case requires a large amount of work. Also, because the field is so complex, attorneys must meet certain qualifications, which usually include gaining a bachelors and a juris doctorate from an accredited law school as well as passing the local bar exam. To get these qualifications it requires thousands of dollars which are usually borrowed from banks or the government in the form of student loans. So in order to make those payments, attorneys need to charge larger fees.
Q. Why wont the prosecutor drop the case I'm innocent?
A. Most of the time you have not provided the State with sufficient cause or evidence to drop the case. Even if your innocent, you must prove that your innocent to them. The prosecutor has looked at your case and has made the determination that you violated the law based on what he has in front of him. So unless you present other evidence the prosecutor likely wont drop the case. It is true that you have a right to a jury trial and that the prosecutor has to prove your case beyond a reasonable doubt, but he has no obligation to drop the case before trial if he believes you are still guilty.
Q. Can the judge just dismiss my case?
Photo By: https://en.wikipedia.org/wiki/Frank_Caprio_(judge) |
Q. How can they charge me for the Felony again after they dismissed it...?
A. In Idaho the charges on a Felony case can be dismissed and then refiled by the prosecutor. Even if the Court throws it out the charges can be brought again until the statute of limitations (if any) have expired. You cannot be tried twice for the same offense, that is called double jeopardy (and unconstitutional), but that doesn't apply to cases that have been dismissed and refiled.
Q. Why didn't the police charge him with a crime?
A. In Idaho police and prosecutors have discretion in which crimes they charge. It is more than likely a proof problem or the officers simply used discretion in charging you with a crime.
Q. What if the witness doesn't show up to court?
A. If the witness is the complaining witness or the victim of the crime, and doesn't show up to court the case can be dismissed because you have a constitutional right to confront the witness's against you. However there are exceptions.
Q. I thought that something comes off your record after a certain amount of time...why is the prosecutor bringing stuff up from my past?
A. Idaho is a "do not forget state" which means that your criminal history can be used against you no matter on how long its been there. Its very common for prosecutors to bring up offenses that have occurred 10 years prior or more. It will effect your plea, your bond, and likely your sentencing. I personally disagree with this use of criminal history.
Q. Where can I see my criminal record or my court dates?
A. Idaho has a system called Icourtportal. You can look up your court dates through the "hearing" or "smart search" features.
Q. Whats a preliminary hearing?
A. A preliminary hearing is a hearing to establish that their is probable cause to charge you with a felony. Its like a mini trial. You can call your witnesses and cross examine the States witnesses. But its important to remember that more than 70% of the cases go forward to the District Court because the State has a lower burden of proof. The State does not have to prove there is no reasonable doubt, they must prove there case on a preponderance basis. Which is much easier for the State to prove. You should consult your attorney before you make the decision to waive or go through with your preliminary hearing. Usually, there is an offer by the state that is presented to the Defendant prior to the hearing.
Q. Why do I have to be on pretrial release?
A. Pretrial release is a privilege. There is no exclusive right to bail. Technically, a person could be held in the county jail until their trial. Judges consider two main things before they let you out of jail. 1. Judges want to make sure that you will show up at the court dates and not run. 2. The judge wants to make sure that your not a further danger to the community. If the judge feels like you can be released, he or she may put certain conditions in place while you are out of jail to ensure those two things. So while although those conditions may seem tedious or intrusive they are less intrusive than jail and favored.
Q. Whats the difference between a civil case and a criminal case?
A. Civil cases are between two individuals. Things like protection orders, lawsuits, and personal injury cases are civil cases. Criminal cases involve breaking a statute which is codified and involves a penalty which can deprive you of your freedom. Some examples are more like murder, battery, DUI's, No Contact Orders, and felony and misdemeanors.
Q. I have a "pretrial conference," coming up....whats that?
A. A pretrial conference is a meeting where you the defense attorney and the prosecutor agree on what should happen in the case. This can include, taking a plea deal, continuing the hearing, or setting the case for trial.
Q. Why cannot you object to the prosecutor saying bad stuff about me?
A. Life's not like television. Objections must be made in conformance with the Idaho Rules of evidence. These rules are very complex and often times are open to interpretation. Objections should occur during trials, but for most hearings they are commonly not used. If you fail to object during trial you loose the right to appeal the issue. So its important to object at trial if it is not appropriate, however sometimes objections during trial backfire, it makes it look like you are hiding something, so its very important to be on the same page prior to trial with your attorney about how and when to object.
Photo By: State Bar of Wisconsin |
Q. Do I get to pick the jury?
A. Yes. You get to pick from the cross section of the community, your attorney should assist you in doing so. The State also has a say in who the jury is...which means they can strike you picks. So its like you both get to pick the jury.
Q. Do I have to blow into the officers breathalyzer?
A. No. The breathalyzer is optional. However, if you refuse an evidentiary test the officer can charge you with a refusal. Officers may also obtain your blood through a search warrant signed by a magistrate.
Q. Should I talk to an officer about what happened?
A. So many people think that officers can help them if they are honest with them. That's false, officers have the ability to release you from arrest but they do not prosecute the crimes. They can only make recommendations to the prosecutor. Officers generally will use what you say against you. I advise that you should never talk with the police until an attorney is present.
Q. Does my case get thrown out for them not reading me my rights?
A. No your case does not automatically get thrown out because an officer forgot to read you your rights. However, if you made any incriminating statements and the officers didn't read you your rights, you can ask the court to suppress the statements. That means they cannot be used in trial against you. But, they may be used in other hearings or if you plead guilty.
I hope this list was helpful. Not exhaustive but I plan on doing multiple Q/A's.
Helpful links
https://travisriceattorneyatlawpllc.business.site/
Comments
Post a Comment