What Services Can an Attorney Provide?
The right to advice and representation by an attorney is fundamental to exercising other rights guaranteed by the U.S. Constitution. A lawyer can use his or her knowledge of criminal law to protect the accused from unfair accusations, convictions and punishments. Some of the important services a lawyer can provide are:
- What are the elements of the crime?
- Does the government have evidence to prove each element beyond a reasonable doubt?
- Is the government’s evidence admissible under the rules of evidence?
- Was the government’s evidence obtained in violation of Constitutional rights?
- Are there witnesses or other evidence which would be favorable to the accused?
- Is there any legal defense, such as self-defense or entrapment?
- Is the prosecuting attorney likely to engage in plea bargaining?
Often the prosecuting attorney will agree to reduce or dismiss charges or recommend a lenient sentence. There are many reasons for this. A defense lawyer presents those reasons to the prosecuting attorney in a convincing manner. Reasons for plea bargaining include:
- Insufficient or questionable evidence
- Mitigating circumstances
- Saving time
- Cooperation of the accused in other cases.
- Pre-Charging Representation
Sometimes the best time to plea bargain is before charges are filed. Only the prosecutor can charge a felony. For misdemeanors, unless the police issue a citation, the prosecuting attorney decides whether to file a charge. Sometimes the prosecuting attorney can be persuaded that a charge should not be filed or that a reduced charge should be filed.
Frequently, persons who are not represented by an attorney make matters worse by making statements to the police in the hope that it will help. It usually does not. An attorney can determine what communications with police, if any, might be in the client’s best interest and then make those communications on behalf of the client.
rials are governed by complicated rules of evidence and rules of procedure. A layperson is unlikely to master these. Equally important, a skilled lawyer employs specialized communication methods and techniques to maximize the persuasive effect of the evidence in the case. These methods and techniques include considerations such as theme, storytelling, visual imagery and emotional impact.
In many cases the law gives judges a great deal of discretion in deciding what punishment to impose. An experienced attorney can use his knowledge to focus on the points and arguments that will effect a judge’s sentencing decision.
Crimes are divided into two major categories: felonies and misdemeanors. Misdemeanors are crimes which have a maximum possible punishment of one year in jail or less. Felonies are crimes which have a maximum possible punishment of more than one year in jail. Fines are allowed for both felonies and misdemeanors. A period of probation is usually imposed for both felonies and misdemeanors.
A criminal conviction, whether misdemeanor or felony, also has other results, called “collateral consequences.” These are not imposed by the sentencing court, but are unfavorable effects which result from the criminal conviction. The collateral consequences vary depending on the type of crime and, sometimes, on individual circumstances. Examples are loss of right to vote, loss of right to possess firearms, denial or revocation of professional or occupational license, deportation or exclusion of non-citizens, and unfavorable employment or school decisions. A criminal record may also prohibit an individual from visiting Canada.
A vital consideration in any criminal case is to determine what the collateral consequences might be and to minimize them if possible. Collateral consequences can be avoided or minimized by securing a reduction, modification or dismissal of charges.
There are three ways a criminal case can begin in court. A police officer can issue and file a citation if the charge is a misdemeanor. A prosecuting attorney can file charges in court. Or a police officer can arrest a person and book him or her into jail.
If an accused is jailed, then he or she must be brought before a judge before the end of the next business day so the judge can set bail or release the accused upon his or her promise to appear. Often an attorney can assist in obtaining release at a bail hearing.
Another type of hearing which needs to be held is an arraignment. At an arraignment the judge formally notifies the accused of the charges and asks for a plea of “not guilty” or “guilty”. If the charge is a misdemeanor in District Court, an attorney can file a written not guilty plea so that the accused does not need to physically appear in court.
Trial is usually scheduled for 60 to 90 days after the arraignment. An accused has a right to be tried within 90 days, or within 60 days if he or she is in jail. If a plea bargain is reached, the trial is canceled and a guilty plea is scheduled. For a misdemeanor in District Court, the trial or plea and sentencing usually are conducted on the same date. For a felony, the sentencing is usually scheduled for a later date.
There are other hearings which may be necessary. Examples are hearings on the lawfulness of a search or arrest, hearings on the admissibility of a confession, discovery hearings to determine whether the government should provide information prior to trial about the evidence (generally the government is required to provide such information, but questions and disputes sometimes arise).