Why does hiring the right lawyer matter so much? Aren’t all lawyers the same?

Hiring the right lawyer is the single most important decision you can make if you’ve been arrested or if you think your rights have been deprived. Here is an example that illustrates this. Having car trouble is something many of us have gone through. Suppose you are driving on a highway and your car starts shaking uncontrollably. Concerned, you take your car to a mechanic that was recommended to you by a friend of a friend. The mechanic then spends an hour looking at your car while you wait anxiously. He then comes to you and tells you the transmission needs to be fixed and it will cost you $2,000. You then decide to take the car to another mechanic for a second opinion, and the second mechanic tells you it’s just a bad spark plug, which he can replace for $100. This second mechanic was almost recommended to you by someone you know. Whom do you trust? What if the first mechanic is right and if you don’t replace the transmission, your car could break down at any moment. What if the second mechanic was just trying to get a quick $100 from you with no real effort? What if the second mechanic was right and the first one was just trying to rip you off?

Hiring a lawyer involves the same issues. The bottom line is that you are in an emotionally and financially vulnerable situation and you need help. The trouble is you don’t necessarily know that the people who have the knowledge to help you are out to truly help you or whether they just want to take your money as you go down. However, the stakes when you are accused of a crime are considerably higher that when you’re dealing with a car. Here, your life, your future, and your liberty literally hang in the balance. The decision you make is critical.

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If the police want to talk to me about a crime they think I committed, should I talk to them?

If the police have placed you under arrest for a crime they think you committed, there is very little you can say that will change their minds. The reason you are under arrest is because they already believe they have probable cause that you committed this crime. Moreover, they are going to presume that you are lying to get out of trouble because you don’t want to be under arrest anymore.

In these circumstances, the police may want to talk to you, but it is not to hear your side of the story or to figure out what happened. They think they already know what happened. The reason they want to talk to you is because they want to build a stronger case against you. A stronger case almost always includes a statement made by the defendant. Although the police are going to try to get you to confess to the crime, they don’t necessarily need a confession to use your statements against you. All they need is a “locked in” statement about what happened. Then, if they can prove that some part or all of your statement is not true, then the judge and jury will be presented with hard evidence that you lied about what happened. They may then ignore the actual evidence in the case and presume you are guilty because they think you lied about what happened.

Just to be clear, I am not advocating that you not talk to the police. I am merely saying that you have an absolute right to a lawyer and you should exercise that right by consulting with someone about how to best proceed before speaking to the police. Don’t be ashamed to exercise your rights.

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But I am innocent of that crime and I have nothing to hide. What’s the harm in me talking to them?

As mentioned above, the police don’t need an actual confession for you to proverbially dig your grave if they can just disprove some of your statement. For example, suppose you tell the police you have an alibi during the time the crime was committed but you mistakenly forgot that the alibi was on another day or was a few hours earlier than you initially though. In these circumstances, the police will not only think you’re lying, but they’ll use your ‘lies’ against you.

When you are placed under arrest, whether you are innocent or not, you don’t know the evidence the police have. You are therefore at a tactical disadvantage in any conversations you have with the police. The best thing you can do is to ask for a lawyer. If you are innocent, the truth will come out and the best way for it to come out is for your lawyer help you get it out.

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If the police want to search my home, do I have to let them or can I say no?

The Fourth Amendment to the U.S. Constitution gives all citizens the right to be secure in their homes from unreasonable searches and seizures. This means that you do not need to let the police search your home. However, if the police have a lawfully obtained search warrant that was signed by a Judge and your home is listed in the warrant, then you may not prevent the police from searching your home. So if the police want to search or home, ask them if they have a warrant. Unless they do, you don’t need to let them in.

The police arrested me and now the DA’s Office is prosecuting me for a crime based on the word of one person alone. How can that happen?

Television shows and movies have clouded what the term “evidence” means. Evidence is anything that either proves or disproves a certain fact. Although evidence can come in the form of fingerprints, DNA, or surveillance footage, the overwhelming amount of evidence used in the legal system is eyewitness accounts about what happened. So in this regard, the nature of evidence is relatively unchanged in the hundreds of years that our legal system has existed. Moreover, after all the evidence is presented at trial, judges routinely instruct juries that evidence comes in many forms and it is the quality of the evidence that matters and not the quantity. Many people consider scientific evidence, like fingerprints and DNA, to be compelling because it is perceived to be unbiased. However, eyewitness testimony can be compelling as well. It entirely depends on the case and who the witnesses are. A criminal conviction can legally be sustained, however, by the testimony of one person alone if the jury finds beyond a reasonable doubt that this person is credible and accurate in her testimony. It is for these reasons that the issue as to how strong a case is and how to proceed should be discussed with an attorney in person.

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The police arrested me for a crime they are saying I committed against a family member, but the family member wants to “drop the charges.” Doesn’t that mean the case is over?

When you are charged with a crime. The caption in the case reads “The People of the State of New York versus John Doe” or “The United States of America versus John Doe.” It does not read “Victim of the crime versus John Doe.” Therefore the person who wants to “drop the charges” has no legal right to do so. It is completely within the discretion of the government on how to proceed against you and whether to proceed. The victim of the case is not a party to the litigation. The government looks at the victim as a witness. When a crime is committed, it is committed against the state. Moreover, when people accuse others of a crime and then recant, the District Attorney’s Office becomes suspicious and they look at whether the defendant is tampering with their witnesses. This can lead to additional charges and significant jail time.

The best thing to do in these situations is to continue to follow all court orders, refrain from all contact from this person until the proceedings are over and contact is allowed, and to contact an attorney who can advocate on your behalf on how to get the charges dismissed.

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If I get pulled over for drinking and driving and the police ask me to take chemical tests to determine whether I am intoxicated, do I need to take the tests?

When the state gave you a license to drive a car, you agreed that you would submit to chemical analysis whenever asked by the police. You also agreed that if you fail to do so, your license would be suspended. So if the police ask you to submit to a breath test and you refuse, your license is likely going to be suspended. With that said, the issue of whether you should submit to the chemical tests is one you should discuss with an attorney before you submit to the tests. You have a qualified right to an attorney if you ask for one before your submission to the tests. So simply ask the police to speak to an attorney before you submit to any tests prior to doing so.

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I missed my last court date, what should I do?

You should contact your attorney and go to court immediately. If you missed your last court date, the judge likely issued a warrant for your arrest. That means the police are actively looking to arrest you and bring you to court. Once you are brought to court, the judge will likely increase your bail or remand you to jail. If you voluntarily return to court, however, the chances are smaller that the judge will increase bail than if the police physically bring you back. Your lawyer may be able to help you in explaining to the judge why you missed your court date. The best way to think about it is to realize that you are going to go back to court. The only question is whether it will be in handcuffs or not.

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What does mandatory minimum mean?

A mandatory minimum prison sentence is a prison sentence that a judge must sentence you to if you are convicted of a designated crime. Historically, the issue of what is an appropriate sentence was capped by either a statute or the commonlaw, but judges were granted enormous discretion in sentencing. They basically sentenced you to what they thought was appropriate. That changed during the “war on crime.” People became fed up with what they perceived as “criminals getting free rides” so politicians enacted laws that removed that discretion away from the judges. An example of a mandatory minimum is the sentence for Robbery in the First Degree. In New York, if you’ve never been convicted a crime in the past and you were just convicted of Robbery in the First Degree, the judge must impose a sentence of at least five years incarceration. So the mandatory minimum for Robbery in the First Degree is five years prison. The judge is not allowed to look at mitigating circumstances about you or the crime and sentence you to less than five years.

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What are the federal sentencing guidelines?

The federal sentencing guidelines were enacted in 1984 in response to people believing that sentences imposed by federal judges were becoming too arbitrary. The guidelines were an effort to clarify how much time a person was expected to serve given what they were convicted of and what their criminal record was at the time of the crime. Functionally, the guidelines are an enormous chart in which the vertical access has 43 distinct categories and the horizontal access has six distinct categories. The 43 categories are the level of crime that was committed with the seriousness of the crime increasing along with the number. For example, First Degree Murder is a considered a 43. The six horizontal categories correspond to the criminal record of the person at the time the crime was committed. The higher the number on the horizontal access, the more significant the record the person has. Once you determine what level the crime number should be and what the record number should, you look on the chart and see what the appropriate prison term range should be. The terms are given in months. For example, a 10-year prison sentence is a sentence of 120 months. In 1995, the Supreme Court found in United States versus Booker that the guidelines were only advisory and the judges are allowed to deviate from them. However, judges routinely still use these guidelines to find what the appropriate sentencing range should be.

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I got arrested and was charged with possessing a dimebag of marijuana in my pocket. I thought marijuana was decriminalized in New York. Why do I have a case I need to fight?

Less than 25 grams of marijuana are decriminalized as long as you don’t smoke it in public or hold it to public view. If you do either of those two things, then you are committing a B misdemeanor, which is punishable by up to 90 days in jail. However, just because marijuana has been decriminalized, does not mean you can’t get arrested for possessing it. Police routinely arrest people for possessing marijuana even if it is not open to public view and the District Attorney’s Offices routinely charge people. Moreover, if you are convicted of this marijuana “violation,” it stays on your record for three years. So not much has really changed with regard to marijuana other than the fact that New York doesn’t call this possession a “crime.” There is still a stigma attached with being caught with marijuana and you should actively fight the charges even if you are only accused of this “violation.”

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I was arrested for committing a crime, but I am innocent. Do I even need a lawyer? Won’t the truth prevail?

Sadly, the answer to this question is the truth won’t necessarily prevail. The legal justice system in the United States is “adversarial.” An adversarial system means that each side to a legal dispute is expected to bring forth their own witnesses and then argue their case before a judge or jury. The judge or jury then makes determinations as to whom to believe. This is very different than an “inquisitorial” system in which the judges conduct their own investigation and then make their rulings. The adversarial model is considered to be far superior for getting at the truth.

The problem though is that as a matter of law, none of the lawyers or judges were themselves there when the crime was alleged to have been committed. In fact, if a judge or lawyer was there, then that person is a witness in the case and is excluded from being involved in any other capacity. So if you were placed under arrest, the prosecutor, the defense attorney, and the judge were not there. Therefore, they don’t really know what happened. The only thing they can do is listen to the people that were there, test the evidence, make credibility findings, make an educated guess as to what actually happened, and then argue accordingly.

If you’re accused of a crime and you’re innocent, then that means you are being falsely accused. This, in turn, means someone is accusing you falsely. Whether that person is deliberately setting you up for something you didn’t do or they are simply mistaken, they told the police what happened and the police believed them to the extent that they placed you under arrest. The version of events told to the police is going to go unchecked unless you check it. And in our legal system, the only way for you to do that is to hire an attorney who can help you in addressing these accusations by bringing to light why the accusation is false. The truth will come out, but only with the help a good lawyer.

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If I’m convicted of a crime in New York City, will anyone know that I have a criminal record?

Yes. A criminal record almost always lasts forever. It is not hard for an employer or someone else to determine whether you have been convicted of a crime. The social stigmas associated with having a criminal record speak for themselves. In addition, a criminal record carries with it numerous collateral consequences. These consequences include losing the right to vote, losing out on employment opportunities, and a criminal conviction may even lead to deportation. An arrest, however, is evidence of nothing. Our society recognizes that a person can be arrested by mistake. And simply because a person was placed under arrest, it does not mean the person is guilty of the crime. Employers are even precluded from asking employees if they’ve ever been arrested. And an arrest does not remain on anyone’s record unless the person is subsequently convicted. Therefore, you should hire an attorney to help you ensure that you are not convicted of a crime.

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The DA’s Office is offering me an opportunity to plead guilty to a crime and they’re willing to give me a sentence as low as time already served. It doesn’t get any better than that does it?

This is related to the previous question. As previously mentioned, having a criminal record has serious consequences. In fact, when a person is charged with a low-level misdemeanor like shoplifting, the battle between prosecutors and defense attorneys has nothing to do with what the actual sentence will be because the sentences are often so small. The reason this is true is because the ramifications of giving someone a criminal conviction are significantly higher than any nominal sentence that he may receive. Just to be clear, what I mean by nominal sentence is something like two days of community service, etc. So if you don’t have a criminal record, picking one up even if the sentence is “time served” is probably not a good bargain.

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What does plea bargain mean?

A plea bargain is a negotiated plea between the DA’s Office and the defendant in which the defendant agrees to plead guilty to a lesser crime than the one the person is accused of committing. Like all negotiations, both sides are giving something up here. The defendant is giving up his right to fight the charges, to have his lawyer confront witness against him, and to force the government to prove his guilt. In fact, the defendant is even going to admit that he committed a crime in open court. The DA’s Office is giving up the insistence that the defendant be sentenced to as much jail time as the crime he is charged with asks for. For example, if a defendant is charged with Burglary in the First Degree, the minimum sentence is five years incarceration. The maximum sentence is 25 years incarceration. If the defendant elects to go to trial and if he is convicted, he will receive a sentence somewhere between that range. If he elects to plead guilty to Burglary in the First Degree, his sentence is the same as if he was convicted at trial. However, if his lawyer calls the prosecutor and says something like, “…my client intends to fight the charges tooth and nail at trial. However, if you give him the opportunity to plead guilty to Burglary in the Second Degree with a promised sentence of 3 ½ years, he will take it.” If the prosecutor agrees to do that, then they just plea-bargained the case and it is resolved.

Most cases plea-bargain these days. So when you hire a defense attorney, you need to ensure that this person is capable of getting a good deal if the evidence against you is overwhelming.

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What does bail actually mean?

Bail is the temporary release of an accused person who is awaiting trial on condition that he return to court when his case is heard. Bail is often granted on a condition that a sum of money or property be lodged to guarantee the person’s appearance. If the person fails to appear, the money or property is forfeited. People accused of a crime in the United States are presumed innocent unless and until they are convicted after trial or they plead guilty. It is therefore inconsistent with the presumption of innocence for a person to have to await trial in jail. A person who is presumed innocent may actually be guilty though. And in situations in which it is only a matter of time until the person is found guilty, the guilty person may want to run away rather than be convicted. Bail is a method of ensuring that the person makes his court appearances, while keeping with the tradition of the presumption of innocence.

Practically speaking, how bail is set largely depends on who the person is, what his criminal record is, what his community ties are, how strong the case against him is, and how serious the case is. If it is a low-level crime in which the incentive to flee is small, the court is likely to release the person without requiring any money or property. In a case as serious as murder, the court is likely to remand the defendant to jail pending trial because the incentive to flee is great. In New York, the issue of bail solely revolves around ensuring the return of the defendant to court and the issue as to whether the defendant is violent is irrelevant in determining whether bail should be set. However, under the federal system, “preventive detention” arguments are allowed if a defendant is awaiting trial and he is considered to be a danger to society.

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I am being charged with possessing a loaded firearm in New York, but I am from another state and my firearm is licensed in that state. Why am I being charged with this crime?

New York has among the most severe and uncompromising gun laws in the United States. If you possess a loaded firearm in public, you are guilty of a class C violent felony. The sentence is a minimum of 3½ years prison and a maximum of 15 years. The judge has no discretion in sentencing you to less time. What’s more, New York does not acknowledge valid permits from other states. So legally speaking, a valid permit from another state is worthless in New York. However, a good lawyer can use the fact that you have a lawful permit as a mitigating factor in resolving your case equitably.

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If I get pulled over by the police and they want to search my car, do I have to let them?

The U.S. Supreme Court has found that there is a diminished expectation of privacy in a person’s car. That means that there are situations in which the police may search the car without a warrant and without consent. One common situation occurs when the police pull you over and they have “reasonable suspicion” that you committed a crime. Under those circumstances, the officer is permitted to search the “grabbable area” near where the driver’s seat is for his own protection. For the police to search the trunk they need “probable cause” to believe a crime has been committed. Probable cause is a higher standard than reasonable suspicion. The take away point here is that when you are involved in an encounter with a police officer and you are in your car there are a few things you need to keep in mind.

  • 1) Traffic interactions are very common for police officers, but they are also nerve-racking for them. Simply put, they are very vulnerable because they may not see your hands or what you’re doing. Police are highly trained in these situations. What may seem like a routine traffic stop to you, may seem like a life or death situation for them. Think about, when a cop pulls you over because your taillight is broken, he doesn’t know if you’re a soccer mom on your way home or if you’re an escape felon wanted for murder. Therefore, you should do everything you can to make the officer feel at ease. He will appreciate it when talking to you. Things you can do to calm the tense situation include the following: Turn the car off and put the keys on the dashboard; turn on all the lights in the car; keep both hands on the steering wheel at all times; and if you need to do something like get your wallet, announce your intentions and do it slowly. If you do these small things, the police are more likely to treat you less like a suspect and more like a person who is conscientious.

  • 2) If the police ask you to search your car, politely decline. If they say something like, “…if you don’t let us search your car, we are going to just get a warrant,” still decline. You don’t need to let them search your car unless they have a valid search warrant. And if they want to get one, let them put the work in.

  • 3) Comply with all their instructions, but calmly reassert that you are not consenting to them searching your car. If they ask you to step out of the car, do so slowly and calmly.

  • 4) Even if they find contraband in the car, your attorney can litigate the issue as to whether they had the legal right to search the car and the evidence may be suppressed. That is why you must remain calm.

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I was given a “Desk Appearance Ticket.” How is that different than being arrested and do I still need a lawyer?

I have a detailed section on this in the DAT part of the website, which you can access here. The take away point though, is that if you were given a DAT, you were arrested and you do need a lawyer. The only difference between a DAT and being put through the system is that when the police give you a DAT, they think you are going to make it to court for your arraignment, whereas as if they don’t have that confidence, they’ll take you to the arraignment themselves. But that is the only difference. The charges are just as serious and you could end up in jail in the same way you could if you were sent through the system. So it is absolutely critical that you hire an attorney as soon as possible to discuss the charges.

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What does false arrest mean?

False arrest means the police did not have the legal right to restrain you. Ordinarily, a legal standard called “probable cause” is used to determine whether the police have the right to place you under arrest. “Probable cause” simply means there is objective evidence that leads the police to believe that it is more likely than not that the arrestee committed a crime. This standard is very low and it falls considerably lower than the legal standard of “proof beyond a reasonable doubt” which must be used to find a person guilty of crime. A false arrest occurs when the police arrest a person when there was not enough evidence to satisfy this “probable cause” standard.

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What does excessive force mean?

The police are legally allowed to use a certain amount of force when effecting an arrest. However, the amount of force they use must be reasonably necessary under the specific circumstances. Excessive force occurs when the police exceed the necessary amount of force necessary to effectuate the arrest. For example, if the police are arresting a person for a crime they believe the person committed and the person fights them off, punches them, and then pulls out a knife, it may be reasonable for a police officer pepper spray the individual or to otherwise attempt to incapacitate him. However, if the police are arresting a peaceful protestor and they decide to pepper spray the protestor because the individual officer doesn’t like the politics of the protestor, then the force used may be considered excessive.

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Will I prevail if I sue for my rights being deprived?

It depends. For you to prevail, you need to prove by a standard of proof called “preponderance of the evidence” that the police did not have probable cause to arrest you. The standard for probable cause is very low. The police merely need to think it is more likely than not that you committed a crime. It doesn’t necessarily matter whether you actually committed the crime or whether you are actually convicted of that crime. As long as the police have met the standard of “probable cause,” then they had the right to arrest you and you won’t win in court. The biggest difficulty in winning a civil rights lawsuit occurs when the arrestee is arrested based on allegations made by another person. This is true because there is a legal doctrine that gives the police automatic “probable cause” to make an arrest whenever a known civilian informant tells them an individual committed a particular crime. The reason for that is because civilians are presumed to be reliable as long as they are known by the police. So if I tell the police that you punched me in the face, they have the legal right to arrest you as long as they believe me. It doesn’t ultimately matter whether I fabricated the claim as far as your potential lawsuit against the police is concerned.

However, people are routinely arrested without probable cause and even if the police did have probable cause to make an arrest, they still don’t have the right to exceed the amount of force that is reasonably necessary to effect that arrest. So contact a lawyer immediately if you think you have been arrested falsely or if you think the police used excessive force. You and your lawyer can discuss your options.

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How much time do I have to file a civil rights lawsuit after the incident initially occurred?

The statute of limitations for filing a civil rights lawsuit depends on where the lawsuit is filed and under what legal theory. The typical mechanism for filing a civil rights lawsuit is to file is under 42 U.S.C. § 1983. Under 1983, the statute of limitations is three years from the incident.

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