Criminal Defense - FAQs
What is a criminal charge and what types of charges are there?
A criminal charge is any charge which involves some penalty, usually the possibility of jail or other restrictions on your liberty. These charges are distinguished from what are often called violations or civil violations which do not involve jail time, and instead usually involve only a fine and sometimes a loss of license or other privilege. A civil violation would include many traffic violations such as speeding, and can include possessing a useable amount of marijuana or having an open container of alcohol. It depends upon the State and the type of charge. Once the conduct is determine to be criminal conduct it will either be a felony, which is serious (a greater risk of jail time or other sancton), or a misdemeanor, which is usually less serious. In New Hampshire there are two types of misdemeanors, Class A which can involve jail, and Class B which will not. In Maine both Class D and E misdemeanors can involve jail time.
What if I am charged with a felony?
A felony charge is serious. After you receive your summons from the police, Maine law requires you to be indicted by a grand jury. This involves the State presenting the basic facts before a grand jury and the grand jury determining that there is probable cause to believe you committed the crime for which the State wants to charge you. Once you are indicted you are arraigned in Superior Court and will need an attorney to defend you. Jail time and probation are likely if you are convicted of a felony, so it is critical to have an attorney defend you. If the State will not dismiss the charge, you would want it reduced to a misdemeanor. If you are convicted of a felony you will suffer a number of consequences, including the possible loss of the right to vote and to possess or use a weapon such as a gun. Most job applications require you to state a felony conviction and many places do background checks for such convictions.
What if I am charged with a misdemeanor?
A misdemeanor is less serious than a felony, but it can involve jail time and probation It usually only involves a fine and sometimes suspension of driving privileges. In more serious misdemeanors there can be some jail time, or a suspended sentence with probation and conditions of probation such as counseling. Misdemeanors are crimes and can affect your ability to obtain or keep certain professional licenses, to get jobs or get into college or into the military. Also, if you are convicted of a crime involving domestic violence you will not be able to possess a weapon such as a gun. Because a misdemeanor is a crime, and it carries serious consequences, you should hire an attorney to review the evidence against you and try to obtain the best result for you. We can do that, either through a trial or negotiation to get the charge reduced, or conditionally dismissed based upon you meeting certain conditions (often known as a filing or a deferred disposition).
What are the consequences of a conviction for a crime (called collateral consequences) that happen after the criminal conviction, but are not imposed by the Judge at sentencing?
We have discussed some of the consequences of a criminal conviction in the previous two paragraphs. There are too many collateral consequences to list here but some of the consequences of a conviction are: increased insurance rates, loss or denial of a job, loss or denial of certain governmental benefits, difficulty traveling to other countries, being certified a habitual offender and not being able to obtain a license to operate a motor vehicle, and difficulty getting into college. One very significant consequence is the threat of deportation. If you are not a U.S. citizen and you are convicted of a felony, or a certain type of misdemeanors, then you will likely be deported to your country of origin. Having an attorney who is aware of the potential collateral consequences is extremely important. For example, let's say you were convicted of criminal speed. One year later, because you forgot to pay the fine associated with the criminal speeding conviction, your license was suspended and you were stopped by the police and found guilty of Operating After Suspension. If you have one more criminal driving conviction, within the five year period, you will be labeled a Habitual Offender by the State and lose you right to operate a motor vehicle for five years.
How do I defend myself against charges, especially if the evidence seems to be stacked against me?
We can defend you against these charges and over the years we have successfully defended (through motions to suppress, trial, or negotiation with the State) thousands of criminal cases, both felonies and misdemeanors, and civil matters in the States of Maine and New Hampshire. First, you do not have to present any evidence, but the State needs to prove beyond a reasonable doubt that you committed the crime the State has charged. You have the right to cross examine any witnesses against you, and present any evidence on your behalf. You have a right to obtain all evidence the State has against you, as well as any evidence the State has which may be useful in your defense. This includes not only the police report and witness statements, but other information the State may be able to obtain (such as an alleged victim's hospital records). Usually such information is best obtained through an attorney. Most cases involve three types of evidence the State has against you which are:
1. Your own statements or actions, including a confession by you that you committed the crime and video or audio recordings;
2. Test results;
3. Eyewitness accounts who claim they saw you committing a crime, or doing an act, together with other evidence that would lead to the conclusion you committed criminal activity.
Your own statements or actions, including a confession.
Your own statements are the best evidence for the State to convict you of a crime. If you have either admitted to a crime, or made statements that tend to prove you committed a crime, the State has a much easier time in obtaining a conviction. Thus, you need to be prepared to defend this. The State may have a recording or videotape of you, either with or without your knowledge. The most common defense to your own statements is a Motion to Suppress on one of two grounds:
A. Your statement was not voluntary;
B. Your statement was taken in violation of your Miranda rights.
A. Any statement you make must be voluntary, and this focuses primarily on the conduct of the police. If the police made certain promises or threats, these can be the kind which take away your free will and render a statement involuntary. A statement that "you'll never have custody of your children again unless you tell me what happened" or "what you tell me is between you and me only" would be examples of the kind of coercion making a statement involuntary. If there are threats or intimidation, this also can make a statement involuntary. Your condition and state of mind, such as your mental state, education, and whether you were under the influence of any substance at the time you spoke to the police, are also important. However, the voluntariness of a confession is based primarily on the conduct of the police and how you were treated by them and looks to the fundamental fairness of the police officer's behavior. If a statement is involuntary then it will likely not be allowed to be used against you at a trial.
B. "You have the right to remain silent and anything you say can be used against you. You have the right to an attorney and if you cannot afford one an attorney will be appointed to represent you. Do you understand these rights?" This is a Miranda warning and everyone is familiar with it. Most people, however, do not understand when the police are required to give you such a warning. The police need to give you such a warning when you are being 1) Interrogated (questioned by the police) and 2) Are in police custody (which is custody to the extent associated with an arrest). Thus, when a police officer pulls you over in a car, no Miranda waning is needed even when he asks you questions. Once the police officer arrests you, or has enough evidence to believe you have committed a crime or detains you to the extent associated with an arrest, then he is required to give you a Miranda warning. Interrogation is usually not the legal issue, rather it is whether you were in custody. Custody depends upon on many factors, such as where the interrogation took place, whether you were told you were free to leave, how the officer conducted the interrogation, your mental and physical condition during the interrogation, and whether the police officer had knowledge that you committed a crime. If you confess to a crime when you should have been read your Miranda rights, your confession cannot be used against you at your trial.
You must file a Motion to Suppress in order to suppress your statements as involuntary or in violation of your Miranda rights. You need an experiences criminal attorney to do this and we know how to protect and assert your rights.
Test results.
Some of the most common tests in criminal cases are breath tests. These are discussed at length in the OUI/DWI section. Test results also include testing drugs or other items to determine that they are what they appear to be. Fingerprints are another type of test result. The most famous test is a DNA test in which blood, semen, skin, or other parts of your body are tested to see if they match those left at the crime scene. When these kinds of tests are used, you need to hire an expert on your behalf (the State has its own chemists, biologists and other experts to use against you) to evaluate the tests and the results. As discussed in more detail in the OUI/DWI section, test results are only as good as the procedures used for gathering the evidence to test and the condition and validity of the testing equipment. We can help you evaluate any test results being used against you.
Eyewitness testimony
This kind of testimony from persons falls into several different categories:
A. Police Officers-In an OUI/DWI usually the central witness against you is a police officer. This is the case in many other traffic stops. The police officer's credibility is harder to challenge since the officer is usually seen as a disinterested witnesses who is just doing their job. However, a police officer can make mistakes in his or her observations and some are prone to exaggerate what happened in order to get a conviction against you. This is where a lawyer is vital to examining the officer and testing what he did or saw and whether it is believable or not.
B. Eyewitnesses who you don't know and who don't know you- These are people who observe you and seemingly have no reason to make up facts against you. Thus, these witnesses are also seen as credible and with no reason to lie about you. These witnesses, unlike police officers, are not trained in observation, reporting observations, detective work and testifying. They are more susceptible to making mistakes in some situations where they did actually not see or hear something, but have stated otherwise. Like all human beings they are fallible, and are most fallible when something happens quickly and/or under stress. It is critical to have an attorney who can cross examine a witness on what he or she heard or observed.
C. Eyewitnesses who know you or you know them-These witnesses are the most typical witnesses used against you. People who allegedly committed the crime with you, were involved with, or were once friends. These people can often have the most evidence against you, and the most reason and motivation to lie about you and what you did or said. Many times a "victim" of a crime has a reason to get back at you, or obtain an advantage against you, by making an accusation that you did something you did not do. Other "victims" are embarrassed and allege that you did something wrong to cover up what they actually did. This kind of evidence requires a skilled and experiences criminal lawyer. We can cross-examine a witness and call into question what that witness saw or heard and whether that witness should be believed or not.
In challenging any of the eyewitness testimony, especially what is contained in B and C, a private investigator may be important to your defense. This is in addition to the cost of your attorney. The State has no shortage of its own investigators to prove its case against you, so part of you defense may include the use of a defense investigator (we have great investigators we can retain on your behalf) to uncover evidence in your defense.
What rights do I have against illegal search and seizure?
You have a constitutional right to be free from unreasonable searches and seizures. If the government searches you or your home or property, or seizes you, your rights may have been violated. The best process for the police to use is to obtain a warrant to search you or your property, or obtain a warrant for your arrest. This allows an independent judicial officer to review an affidavit and determine whether a warrant to search your property or arrest you should be granted. If a search was done based upon a warrant it is more difficult to challenge, but you can challenge the validity of the warrant in very specific situations, such as if improper statements were relied upon in securing the warrant.
Most searches and seizures are based upon probable cause without a warrant. In the search of a home, for example, probable cause alone is not enough and the police need exigent circumstances as well to enter the home (such as the danger of harm to a person or destruction of evidence). Without this the police cannot enter your home without a warrant. The police also need probable cause to arrest you. If the police violate your constitutional right to be free from unreasonable search and seizure, any evidence obtained as a result of the illegal search and seizure can be suppressed at the criminal trial against you. You need to file a Motion to Suppress when the police has violated your rights. We know what to look for and can help protect your rights.
