|
CAUTION!
This
site is no longer actively maintained.
It remains on-line as a historical exhibit about immigration, and as
a record of creative research and service by University
of Tennessee
law students. The issues dealt with here are still fascinating and timely,
but viewers should use caution. Any specific legal information contained on
this site should not be relied upon, because it may have changed in the
intervening years. For
additional information about this site and the decision to leave it on the
web, visit the home page: http://web.utk.edu/~tnlatina/
~Criminal Law~
For web links and
contacts on this issue, see our general links & contacts pages.
Frequently
asked Criminal Law questions:
 What is bail?
What happens when I am arrested?
How do I get a deal? How do I plea bargain?
Do I need an attorney?
What are my rights?
What is a public defender?
What is a jury?
What is a search warrant?
What happens in a traffic stop?
What if I was drinking and driving?
What are Miranda Warnings?
What
is bail?
Bail is the mechanism by which the accused may be released from jail
pending the disposition of his/her case. There are several forms of bail:
- cash
bond: a judge sets a dollar amount and the accused must pay the full
amount. If the accused appears in court as scheduled, he/she gets all
the money back
- surety
bond: This is the "traditional" form of bail. In most cases,
a bonding company signs a promissory note to the court for the full
bail amount and then charges the accused a percentage of that amount
as a fee. This fee is non-refundable, and it is usually around 10% of
the total bond. If the accused fails to appear as scheduled, the court
can order the bonding company to pay the full amount to the court.
This bonding company then has broad powers to recapture the accused.
- release
on recognizance: The court may release the accused on his/her personal
promise to appear in court as required.
- conditional
release: In addition to the aforementioned types of bail, other
conditions may be placed on the accuseds
release. A common form of this is known as "stay-away
orders," whereby the accused is ordered to stay away from the
victim.
What
happens when I am arrested?
Unless you are issued a citation, you will be taken to jail to be
booked. This is an administrative procedure whereby personal information is
gathered ffrom the accused. Then the accused will
be placed in detention. An initial appearance will usually take place
within 48 hours. At this appearance the magistrate shall inform the accused
of his/her charges, the appointment of counsel if necessary, to schedule
future proceedings, and to make release decisions in the form of a bond
hearing. At this bond hearing, the court may hear proof from both with
regard to the accused’s risk of flight and
harm to society. The judge must then set the bond and the accused will
either "bond out" or continue the stay in detention.
In any case, there will be a "preliminary hearing" at which
time the judge must make a determination of whether there is probable cause
to send the case to the Grand Jury. This resembles a bench trial with both
sides putting on proof. If the magistrate finds probablew
cause that an offense has been committed, the accused will be "bound
over" to the Grand Jury. Essentially, this means that the accused’s case will be presented at the next
session of the local Grand Jury so that a determination of whether to
indict the accused may be made. At the Grand Jury, the prosecutors
presents his/her proof and the grand jurors vote on whether to indict. If
they do not indict, the case is dismissed. If, however, they do indict,
then the case moves forward.
The next step of the process is called the arraignment. At this proceeding,
the court will read the indictment to the accused and ask how he/she pleads
to the charge(s). If the accused enters a plea of guilty, the case comes to
an end and the accused will be sentenced by the judge. If the plea is not
guilty, the case will proceed to a jury trial.
How do
I get a deal? How do I plea bargain?
Ordinarily referred to as plea bargaining, the accused’s
attorney will have informal discussions with the prosecutor about the
strengths and weaknesses of the case and they try to work out an agreeable
settlement. This settlement can take place at any point in the process
outlined above, and the result will bring the case to an end.
Do I
need an attorney?
In most cases, yes. The United States Constitution provides that
everyone accused of crimes has the right to counsel. Likewise, however,
everyone has the right to represent themselves, known as pro se. In most
all cases, being represented by counsel is encouraged. For minor offenses,
such as traffic violations and public intoxication, however, an attorney is
not always necessary.
What
are my rights?
- Right not to testify
against yourself
- Right to a jury
trial
- Right to attend
trial
- Right to
confrontation
- Right to counsel
- Right to
cross-examination of witnesses
- Right to have
process (subpoena power)
- Right to public
trial
- Right to testify
What
is a public defender?
A public defender is an attorney paid for by the state of Tennessee
to represent the indigent. There are specific limitations on who qualifie to be indigent. If you are not found to be
indigent, a small fee may be charged for the services.
What
is a jury?
A jury is a small group of citizens, chosen at random, who are asked to
gather together and hear the case against an accused and to make a
determination of guilt or innocence. These jurors are unbiased members of
the community.
What
is a search warrant?
A search warrant is the instrumentrequired,
under most circumstances, in order for your house to be searched. An
officer must submit an affidavit to a neutral and detached magistrate that
sets out the facts justifying the warrant. Once approved by the a magistrate, the search warrant gives law
enforcement the right to search the property included in the warrant.
What
happens in a traffic stop?
A traffic stop occurs when an officer, believing that criminal activity
has been committed, pulls over or stops a motor vehicle. Once stopped, the
officer usually will approach the driver and ask to see his/her drivers license. The officer then will take the DL and
contact the dispatch center to run a license check on that individual. If
the DL is valid, then the officer will explain the reasons for stopping the
vehicle. If it is not valid, the officer will arrest the driver for driving
on a suspended/revoked DL. Once arrested, the officer has the right to
search the accused’s person and vehicle. If
the driver is not arrested, the officer may or may not have the right to
search the vehicle. If the officer has probable cause, not mere suspicion,
that there are dangerous weapons or illegal contraband in the vehicle, then
the officer has the right to search the vehicle. Without probable cause,
the officer has no right. In many of these cases, however, the officer will
ask the driver for permission to search the vehicle. If the driver allows
the officer to search, he/she has just waived their right to privacy and
the search will be allowed. It is simply best to refuse to consent to a
search when asked by an officer. It is important to remember that you
cannot physically keep them from searching your vehicle.
What
if I was drinking and driving?
The officer will ask the driver to perform certain field sobriety tests.
You do not have to consent to them. Also, the officer may ask you to take a
breathalyzer test or BAC. Likewise, you may refuse. However, refusal of
these tests can result in the loss of your DL for a period of 1 year if
convicted. If you have been drinking, refuse these tests.
What
are Miranda Warnings?
These involve the right not to testify against ones self. These warnings
provide procedural safeguards to secure the suspect’s privilege
against compulsory self incrimination. There are 4 main parts:
- you have a right to
remain silent; if you chose to give up that right, anything you say
can and will be used against you int he
court of law; you have the right to an attorney and to have him
present at every stage; and if you cannot afford a lawyer, one will be
appointed for you.
|
