Q and A with a Premiere California Attorney
Our attorneys often get asked the same questions by current and prospective clients. Unfortunately, most are unfamiliar with the way the criminal justice system works. We at Second Chances Law Group believe that educating the public is key – not only in preventing injustice, but also in educating generations to come regarding their rights. For this reason, our attorneys have compiled a list of some of the most frequently asked questions regarding criminal defense.
At What Point Should I Consider Hiring an Attorney?
There is no “right” time to consider hiring an attorney, but a good rule of thumb is that it is never too early. Some clients retain an attorney before they are even investigated for a crime. It is critical to retain an attorney as early as possible, because a good criminal defense attorney will handle all correspondence with the investigating agency, as well as the district attorney and the court. In addition, investigating agencies are more likely to play by the rules when they know that the suspect has retained an attorney. This will prevent the police from obtaining evidence or statements unlawfully. It is often the case that the suspect retains the attorney after he has already given a statement or after evidence is obtained by the police. Although a good criminal defense attorney will move to have that statement or evidence excluded, it is best to prevent this scenario altogether. The short answer is that you should retain an attorney as soon as you believe you may need one. Waiting to see if charges are filed wastes valuable time, and hinders your lawyer from making contact with the district attorney to persuade them not to file the case at all.
What Are My Rights When I am Being Arrested?
If you find yourself being arrested, it is always a good idea to be cooperative. However, you are not required to answer any questions once you are in custody. Questioning during custody is known as custodial interrogation. You have the right to have an attorney present during custodial interrogation, and you also have the right to simply remain quiet. “In custody” does not necessarily mean in handcuffs. Custody simply means that a reasonable person would not feel free to leave. This could be as a result of a showing of authority, by authoritative words, or even the tone of the officer’s voice. The court typically looks at the totality of the circumstances when deciding if the defendant was in custody during interrogation. In most instances, it is a good idea to invoke both your right to remain silent and your right to counsel immediately.
Can You Get Me Off Parole or Probation?
One area of law in which Second Chances Law Group specializes is post-conviction relief. Post-conviction relief occurs when the client has already been convicted (either by plea or at trial), and has already been sentenced. We often have clients who come to us asking if it is possible to have probation or parole terminated. Parole and probation restrictions can significantly affect the client’s life. Most often we see that travel restrictions are the most hindering. The good news is that there are legal routes which allow our attorneys to persuade the court to end both parole and probation early.
First, probation can be terminated early by showing the court that the client has been compliant, paid restitution, and abided by all sentencing conditions. The motion will also contain arguments regarding why the client should be removed early. For example, difficulty supporting your family or finding gainful employment may be one factor. Other factors include the need to travel to see family. Even if the court denies the motion to terminate probation early, a good attorney will discuss alternative options. For example, filing a motion to modify the probation conditions. Our firm has seen much success with this type of motion.
Having your parole terminated is much different. In order to terminate parole early, your attorney is required to file a habeas corpus petition, which essentially argues that the client is rehabilitated, and that parole is no longer warranted. Although this type of motion typically requires that the client still be imprisoned, parole conditions are so restrictive, that the court views parole as constructive custody – thereby allowing review of habeas corpus petitions for the purpose of ending parole early.
My Last Attorney Really Messed Up – Do I still have Options for Relief?
Many people do not realize until it is too late that they hired the wrong attorney for their particular needs. In addition, it is not uncommon for criminal defendants to complain about the public defender in their original case. Public defenders tend to have a heavy caseload, making it difficult to provide the type of time and attention a client gets from hiring a private attorney. Although the effects may be devastating, incompetent counsel does not ruin your chances for relief. In fact, many post-conviction relief motions include arguments to effectively unwind previous counsel’s mistakes. When a client does not receive competent counsel, a showing that counsel fell below the reasonable standard of legal competence can get the client a new trial. In addition, because so many criminal defendants end up taking a plea deal, a showing that counsel (or the court) failed to advise the defendant of the consequences of his plea may also unwind any damage done in the original case – including overturning the plea.
The Police Officer Didn’t Read Me My Rights, Wasn’t He Supposed To?
A lot of people think that officers are required to read them their rights when they are arrested. However, police are only required to read you your rights if you are under custodial interrogation (discussed above). This makes sense if you look at the language of the rights. The purpose of Miranda rights is to protect a suspect from making incriminating statements, and actually has nothing to do with being handcuffed or arrested.
What are the Pros and Cons of Taking a Plea?
The pros and cons of taking a plea deal will differ in each case. It will mostly turn on how much evidence the district attorney has against the defendant. The defendant and the attorney should discuss at length the likelihood for conviction at trial. In some cases, the district attorney will offer a good deal, and the defendant will not have to go through a lengthy, stressful trial. In addition, plea deals typically offer a reduced sentence or dismissal of one or more charges. It is absolutely imperative to retain an experienced criminal defense attorney before accepting a plea deal.