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Criminal Procedure
A "crime" is an offense against the State or the United States. It is also defined as something one does or doesn't do that is in violation of the law. The legislature (See Government) decides what acts or failures to act are crimes. The legislature also sets the penalties for crimes. Crimes are classified as either "felonies," or "misdemeanors." A felony is a crime for which the sentence can be imprisonment for one year or longer. A misdemeanor is a crime for which the sentence is less than one year. There are several types of crimes. Two of the most frequently committed are: crimes against persons and crimes against property. Crimes against persons include: homicide (killing a person), rape, threatening/terrorizing, and assault. Crimes against property include: robbery, burglary, theft and vandalism. The State prosecutes each type of these crimes vigorously. This chapter is about what happens if you are suspected of or prosecuted for a crime. Stops On the street. A police officer may stop you at any time to ask you any questions at all. You do not have to answer the questions. Ask the officer if you may leave. If he says yes, you may walk away. If the officer reasonably believes you are involved in criminal activity, he may stop to you to ask you for identification. This is not an arrest. It is a "stop*." You do not have to answer any questions the police ask you. If English is not your first language, you may tell the officer and ask for an interpreter. If you are suspected of a specific crime, the officer may ask you to produce identification. To conduct a search under these circumstances, the officer must have specific reason to believe you are armed and dangerous. The search must be limited, sometimes called a "frisk" or a "pat-down." If the officer feels something that seems to be a weapon, the officer may search you further. The officer must return to you any lawful object unless you are arrested. In a vehicle. If you are driving and pulled over for a violation, you will have to produce your license, registration and proof of insurance. If you do not have your license, you can be arrested. If you do not have your registration or proof of insurance, you can be issued a ticket. If the police officer has probable cause* to believe the vehicle contains contraband or evidence of a crime, the officer can conduct a search of the vehicle without a warrant*. Arrest You have been arrested* when an officer takes you into custody for the purpose of charging you with a crime. If a reasonable person in your situation believes she is not free to leave, the officer has arrested you even if he has not stated as much. You can be arrested if the officer has either probable cause to arrest or has a warrant. Probable cause to arrest exists when an officer has a reasonable belief that a person is committing or has committed a crime. You may be arrested at any time if an officer has a warrant. A judge will issue a warrant if an officer or complainant has presented facts that would lead a reasonable person to believe the arrestee was committing or had committed a crime. An officer may use as much physical force as is reasonably necessary to make the arrest. For this reason, it is wise not to resist arrest in any way, either by fighting or complaining. If you believe the officer used unreasonable force against you, make sure you remember the officer's name, badge number if possible, and any witness's names. You may have a cause of action* against the officer for damages*. If an officer arrests you without probable cause or without a warrant, the arrest is illegal. A "warrant" is an order from a judge that you be arrested. Under those circumstances any statements you made and evidence seized cannot be used against you at your trial. You have the following rights when you are arrested:
Search and Seizure. The Fourth Amendment to the U.S. Constitution protects you against "unreasonable" searches and seizures of you and your property. This means that a search is not justified unless there is probable cause to believe a crime has been committed and the search is likely to turn up evidence. Ordinarily, a search requires a warrant, which is an order from a judge that someone or some property be searched. There are exceptions to this rule. A warrant is not required if you consent (agree) to the search. It is not required if the search accompanies a stop of your motor vehicle following your arrest. A warrant is also not required in some special circumstances, such as when there is an emergency, when the police are in "hot pursuit" of a subject or when evidence might be destroyed before the officer can get a warrant. Generally, police must knock and announce themselves before they enter your home and must have a warrant. You do not have to open the door to police if they do not have a warrant. If they do have a warrant, be sure to read it carefully. A warrant must specify the areas to be searched and items to be seized. Police can enter your home unannounced if they believe evidence is being destroyed, that they are in danger, or that there is an emergency. At the police station. The police will take you to the police station and "book you," which is the process of opening a file on your arrest. You may be fingerprinted, photographed and searched. Ask for a receipt for any property the police take from you. The police may wish to question, or interrogate, you at the police station. Remember that you do not have to answer questions. If you decide to, you can always change your mind and stop answering. If you tell the police you will no longer answer questions, they must stop interrogating you. If you tell the police you want a lawyer, the police cannot question you at all until a lawyer is present. Remember that if you start conversation with the police after you have stated you want a lawyer, you have waived* (given up) your right to remain silent. The police can then ask you questions without a lawyer present. Do not sign any documents unless you understand exactly what they mean and agree to what is asked of you. You may meet with a "bail commissioner." Bail is the amount of money you will forfeit if you do not appear in court when you must. The bail commissioner will decide what amount of money must be paid for you to get out of jail. The bail commissioner can charge a fee for his service. The fee is usually $40.00. Bail can be paid by anyone. If you cannot "make bail," which means pay the money, you must wait in jail until your first court appearance. It is also possible the bail commissioner will let you leave jail on your "personal recognizance." This is a promise you will return for court. Sometimes, there are also conditions of bail that you must follow once you leave jail, such as staying away from the victim of the crime. Tell the bail commissioner that you need an interpreter if you do not feel completely comfortable with English. It is very important that you understand all the conditions that go along with being released from jail, If you do not follow any of the conditions, you can be put back in jail. All bail commissioners can get interpreters through a telephone interpreter service. It is free. The State will pay for the interpreter. If you have been arrested for a very serious crime, it is possible you will be denied bail. You will then remain in jail until your trial. First Appearance If you do not "make bail" you will be taken before a judge within a reasonable period of time. This is called the "first appearance." The judge will inform you of the charges against you and your right to counsel. If the judge finds there is probable cause you committed the crime for which you have been arrested, your case will go forward. The judge will also review the amount of your bail and decide whether it was correct. The judge can keep it the same, or change it. If you do not feel complete comfortable in English, always tell the Judge, or the Judge's clerk, that you want an interpreter. In the court, you have a right to a free interpreter. If there is no in-person interpreter available who speaks your language at your first appearance, the Judge can get one through telephone interpreter services. The judge will arrange for an in-person interpreter to be at your next hearing. You should not have a friend or family member interpret for you, and you should not be asked to find an interpreter yourself. The Court must provide a qualified interpreter for you, either over the telephone or in-person. If you do "make bail" after arrest or are not arrested but given a summons* to appear in court you will be given paper work with a date for your first court appearance, the "arraignment" (see below). A court-appointed lawyer will be appointed for you only if you cannot afford one and if the charges against you could result in your being sentenced to jail. Under other circumstances you must pay for a lawyer yourself. You have the right to represent yourself (instead of have a lawyer represent you), if you wish. This is called "pro se*." Representing yourself is not a good idea. Criminal law is complicated. Criminal procedure (how court matters are properly handled) is complicated too. Because you have the option of hiring your own lawyer or having a court-appointed one, it is wise to rely on an attorney to represent you. Arraignment. "Arraignment*" is an appearance in court in which you plead "guilty" or "not guilty." Arraignments are held in District Court. (See Government.) During your arraignment the judge will review the charges against you and appoint a lawyer if you cannot afford one. Tell the court and your lawyer if you need an interpreter. Pretrial Matters. During the pretrial period, your lawyer will discuss with you how to handle your defense. Anything you say to your lawyer is confidential, which means your lawyer cannot tell anyone what you say without your permission. Your lawyer will be in contact with the prosecutor. The prosecutor has a duty to tell your lawyer about any evidence that helps your case ("exculpatory evidence*). It is possible the prosecutor will offer a "plea bargain.*" This means that, in exchange for a guilty plea, the prosecutor will recommend a particular sentence to the judge. Do not agree to plead guilty to any crime until you and your lawyer have talked to an experienced immigration lawyer. (See Grreen Cards and Other Immigration Documents.) Trial. If you do not accept a plea bargain, it is likely your case will go to trial. During trial, you have the right to a speedy, fair, public trial. You have a right to a jury trial. You also have a right to the "effective assistance of counsel." This does not mean that if your lawyer loses your case she has been ineffective. Your lawyer is considered effective if she meets professional standards in handling your case. The prosecutor must prove the case against you beyond a reasonable doubt*. You do not have to testify at trial. You have a right to be confronted with witnesses against you, which means they have to appear in court to testify against you. You have a right to cross-examine these witnesses. You also have a right to compel witnesses who can help your case to appear at the trial by subpoena*. At the end of your trial, the jury will deliberate and decide whether you are guilty or not guilty. If the jury decides you are not guilty, you are free. You cannot be tried again for the same crime. If the jury decides you are guilty, you may be taken to jail or, if the crime is not serious, be permitted to post bail to remain out of jail. At a later date, the judge who presided over your trial will decide on a sentence. You can appeal the verdict* if you wish. In the appeals process, the justices of the Supreme Judicial Court will look at your case to see if the trial judge made any mistakes. If the justices decide no mistakes were made, your sentence will remain. If the justices decide mistakes were made that could have changed the outcome of the trial they will usually vacate the conviction and send your case back to the trial court for a new trial. In rare instances the Supreme Judicial Court may dismiss the charges against you. Legal Resources Immigrant Legal Advocacy Project 309 Cumberland Avenue, Suite 201 Portland, Maine 04101 207-780-1593 or 1-800-497-8505 info@ilapmaine.org Services are free or low-fee depending on income Walk-in consultations with an immigration lawyer are available every Friday. Call for hours. Private Immigration Lawyers: See the "Immigration Law" listing under "Lawyers" in the Yellow Pages of the phone book. Maine Association of Criminal Defense Lawyers P.O. Box 434 Freeport, ME 04032 Phone: 207.865.1457 www.mainemacdl.org |
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