What To Do If You Are Arrested
- This is important information to know after you've been arrested.
- This is a general introduction to the criminal justice system.
- It does not offer legal advice.
- Its purpose is to provide a basic explanation of court terms and describe how a criminal case progresses through the legal system.
If you can make a bond (money to secure your release), then you will be released from jail, but only if you have no other holds. A hold is a detainer placed on you by another governmental agency which requires you be held pending clearance of the hold.
Example: If you had unpaid traffic tickets you could be held in jail until they were paid or you served them out with jail time.
If you cannot make a bond or do not qualify for pretrial release, then you will remain in jail while your case is pending.
If you are free on bond
In many courts if you have been able to make a bond, then you will be expected to hire an attorney to represent you. However, in some courts if you can prove that you are indigent (unable to afford to hire an attorney), then you may request that the court provide you with a court-appointed lawyer. The court itself must pay for the services of the court-appointed lawyer. The cost of this representation may be passed onto you at a later time, in the form of court fees. A court-appointed lawyer may be either a private lawyer who takes court appointments or may be a public defender.
If you are in jail
If you are in jail (incarcerated and unable to make a bond), you may hire your own attorney or if you are indigent the court will automatically appoint an attorney to represent you. If you are unable to make a bond and are indigent, the court will appoint your lawyer within 24 hours of incarceration. You will be contacted by the lawyer but may not actually meet with the lawyer until the police file a case against you. This may take up to 72 hours.
If you are not a U.S. Citizen
If you are arrested and you are not a U.S. Citizen, in most cases the INS (Immigration and Naturalization Service) will place a hold on you. This hold will keep you in jail, whether or not you are able to make a bond. The way in which your criminal case is handled will directly affect your resident status. This should be one of the main issues you discuss with your attorney. If at all possible, you should seek the advice of an attorney who specializes in immigration issues.
The first appearance setting
If on bond the person accused must appear in court. It will be determined at this setting if the defendant must hire an attorney or if they qualify for a court appointed lawyer.
If in jail, the person will be brought to court for their appearance. If the defendant qualifies and cannot afford to hire an attorney, one will be appointed at this time.
These conferences allow both the defense lawyer and the assistant district attorney an opportunity to discuss the case and determine if the case will be dismissed, plea bargained (a plea bargain is a resolution of the case where both the State and the defendant agree to a certain punishment without involving either a judge or jury) or set for a jury or bench trial. (A bench trial is a trial to a judge without a jury).
Generally, a case may be set for a pre-trial conference 2 to 3 times. A person on bond may be required to appear in court every time the case is set on the court's docket, regardless of the hearing and regardless of whether that person's attorney must also appear. If the person is in jail he or she will be automatically brought to the court for hearings.
If a defendant chooses not to have a jury or bench trial, then the case is set for a plea. A person who pleads to the charge may accept either the plea bargain offered by the State, or he may enter an open plea. (An open plea means that the defendant has rejected the plea bargain and asks the judge to set punishment).
Every person charged with a criminal offense has an absolute right to plead not guilty to the charge and have a trial by jury or a trial before a judge (bench trial). In either case, the State, through a County Attorney, must prove a person guilty of the offense charged beyond a reasonable doubt. In a misdemeanor trial, there are 6 jurors who hear the evidence presented in the trial. At the felony level, there are 12 jurors. There are three possible phases to each jury trial. They are: voir dire (jury selection phase); guilt/innocence phase (the time during the trial when evidence is presented); and, if the person is determined to be guilty, the punishment phase.
A jury's decision with regard to guilt or innocence must be unanimous (this means that all six or 12 people must reach the same conclusion as to the guilt or innocence of the person on trial). If the jury does not reach a unanimous verdict the judge may declare a mistrial (also known as a "hung jury") and the case may be retried.
A defendant who has been found guilty of an offense may choose whether the jury or the judge will set his or her punishment.
In a bench trial, the judge determines the guilt or innocence of the defendant and sets the punishment.
Depending on a number of factors, a person may be eligible to have a jail sentence suspended. (Suspended means that they are not sent to jail but are released and supervised by the Department of Correction).