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Attorney Advertising: Website content for informational and educational purposes only and should not be substituted for speaking with an attorney.  All cases are different, and past results do not guarantee future outcomes. All fees must be finalized in writing and may vary based on the circumstances of a case.

CRIMINAL CASES: An Overview


Stuck in the System
Investigation and Grand Jury
Bail
Pretrial Preparation and Motions
Trial
Sentencing
Parole


Contrary to popular belief, less than 3% of cases go to trial. Plea bargains save the government prosecutors, judges, and public defenders a lot of time and money. Consequently, the threat of an effective defense lawyer taking a case all the way to trial can pressure the prosecution or the judge to offer a favorable resolution or to drop the case.

The steep risks of a criminal case should motivate all defendants to understand how a case progresses and how an effective lawyer advances a successful defense. More and more, the government designs ways to brand a person for the rest of his life. Felonies can result in substantial prison time, and an increasing number of misdemeanors can result in a one-year sentence. Once out of prison or jail, a person faces the near-impossibility of finding a job because of a criminal record. A person faces intrusive parole officers. A person loses the right to vote. A person loses the right to own a gun. Often, a person loses connection to friends and family.

If a defendant is convicted of certain offenses, including some misdemeanors, the state can label him a sex offender, which lasts at least twenty years, prevents most employment and housing, and causes substantial public shame because of government websites and fliers.

Because of the uniquely steep penalties involved in a criminal case, a person should consider a personal lawyer. Although the government hires some good lawyers to work as public defenders, there are serious drawbacks to free representation, including the immense caseloads, the random selection of lawyers, and the movement of a case between multiple lawyers in different departments.

Stuck in the System

As cold as it sounds, the criminal justice system is a business. In New York, the system pays tens of thousands of people: police, parole, corrections officers, prosecutors, defense lawyers, judges, clerks, stenographers, security, private investigators, bail bondsmen, bounty hunters, administrators, and politicians. Our system has grown harsher and has developed prosecution-friendly rules, and once you are in the system it is hard to get out. A criminal record makes it difficult to have a life after a conviction, and a slight misstep can result in a parole violation.

The criminal justice system is so overloaded with cases—and jails and prisons are so overcrowded—that most prosecutors and judges view routine cases as an annoyance. The overloaded system requires them to focus on mid-level or high-level felonies. Consequently, most prosecutors or judges jump at an opportunity to dispose of a case in a manner that makes everyone look like they did their jobs.

A good criminal lawyer understands this reality and exploits it. A good lawyer files every reasonable motion, pursues all favorable leads, negotiates persistently, and exploits any procedural mistakes to gain leverage and to convince a prosecutor or judge to drop a case because pursuing it is more trouble than it is worth. Because of limited resources, many prosecutors will avoid a trial at all costs.

In most cases, the prosecutor uses the same strategies to try and force a guilty plea. First, prosecutors tend to overcharge because the threat of substantial prison time scares defendants into grabbing the first plea bargain. Even though a judge eventually may dismiss the trumped-up top charges before the trial, most defendants accept plea bargains too quickly to know! Even prosecutors will end up dropping the most unreasonable charges before the trial, knowing that they cannot prove guilt beyond a reasonable doubt.

A patient defense strategy has other advantages. Key witnesses may not show up to a hearing or a trial. Evidence and paperwork may get lost. Prosecutors may make procedural mistakes, leading to dismissal. In order to make a routine case go away, a prosecutor often will drop the charge and offer an ACD (Adjournment in Contemplation of Dismissal) or will drop a felony down to a misdemeanor.

Investigation and Grand Jury

Law enforcement and prosecutors have total control over an investigation before filing charges. Eventually, a prosecutor must submit felony charges to a Grand Jury, convened in secret, for an indictment. However, a potential defendant can hire a lawyer to try to convince a Grand Jury not to file charges by introducing favorable evidence and witnesses. Having a lawyer to represent you at the beginning of an investigation may influence the Grand Jury to drop some or all of the submitted charges, preventing any further legal action.

Bail

It is important to have a good lawyer right from the start if you are interested in low bail or ROR (Released On Own Recognizance).

After an arrest, the police must bring a suspect before a judge within 24 hours, a process called arraignment. If you do not hire a lawyer, the court will provide a public defender that usually works on a number of new cases during marathon stretches, often seeing a case for the first time moments before the arraignment. After entering a plea, the lawyer will argue for bail. Keep in mind, this is usually the only opportunity to convince the judge to let the accused go home or to allow low bail (a request for a rehearing can take weeks). If the judge imposes high bail or remands, the defendant might be jailed for months before the case gets dismissed or goes to trial.

Bail allows a defendant to go home for a price. A defendant can arrange for a bondsman to pay the bail in exchange for cash, credit, or collateral. However, a defendant only gets bail if the judge permits it, and bail does not help much if the judge sets the price too high. Therefore, the defense lawyer must effectively argue for bail based on the strength of the case and based on proof that the client will not skip town.

Hiring a lawyer before arraignment can increase the chances of low bail.

Pretrial Preparation and Motions

After the arraignment, a lawyer will review the case and will decide what options exist. Most cases—97%—end before trial due to plea bargains or dismissals. A personal lawyer can prepare for a strong plea offer or dismissal by: 1) investigating the weaknesses of the prosecution witnesses, 2) uncovering problems with police searches of a person, property, car, or home, 3) uncovering problems with unfair identifications during line-ups, show-ups or photo spreads, 4) uncovering the problems with Miranda warnings, interrogations, or confessions, and 5) proving that the prosecution has violated the client’s right to a speedy trial.

1) A good lawyer will investigate the prosecution witnesses and figure out their motivations, biases, and mistakes. For example, a good lawyer should find out if a police officer gave inconsistent testimony or if a witness has a reason to lie based on a grudge or personal gain. Also, the lawyer should investigate the past of each prosecution witness, including criminal histories and patterns of behavior (for example, an intoxicated witness cannot provide credible testimony). The lawyer can use these weaknesses to negotiate with the prosecution and the judge to avoid trial. For a defense lawyer to understand the details of a case, he or she must take the time to understand what happened and to talk to the client and the witnesses.

2) Many cases end because the police did not follow the law. The Constitution provides protections from illegal searches and arrests, unfair identification procedures, and improper confessions. The police must have a warrant to search people, property, homes and cars unless the police can prove “probable cause.” Lawyers have argued for decades about what constitutes “probable cause,” and a good lawyer can get a judge to exclude evidence that the police found improperly. If a lawyer effectively argues that the judge should throw out important evidence found during an improper search, the prosecution often will dismiss a case.

3) A judge will throw out an identification if the police influenced the witness. If the police bring a witness to a suspect, show a witness a series of photographs, or present a live-person line up, the police must follow strict rules. Because many cases rely solely on eyewitness identifications, a lawyer can get a case dismissed if the identification gets thrown out.

4) Anyone who watches TV knows that the police provide Miranda warnings after an arrest to inform a suspect that he has the right to remain silent and to speak to a lawyer. In a criminal case, many technicalities surround the Miranda warning process, and a good lawyer can get a confession or an incriminating statement thrown out if he proves that the police did not follow the law. Even after the police give a Miranda warning, they must follow certain rules during the interrogation or the recording of a confession.

5) Believe or not, many cases get dismissed because the prosecution takes too long to go to trial. If the prosecution exceeds the speedy trial limits, the judge must dismiss the charges (except in homicide cases). However, a lawyer must carefully calculate how much time has elapsed since arraignment based on a number of factors. Generally speaking, the prosecution has 60 days to bring smaller misdemeanors to trial and 90 days for Class A and B misdemeanors. For felonies, the prosecution has 6 months, which can be extended based on a number of factors—so you do not want to be remanded during that time period if you can avoid it! Unfortunately, many people plead guilty, regardless of whether they committed a crime, just to escape pretrial lockup.

Trial

The public is most familiar with the trial phase of a case. Although most cases do not reach this point, it is important to review a few key facts about how a trial works.

First of all, the most important strategizing takes place before the trial starts. During the jury selection, which experts have attempted to study for many decades, a good lawyer will help to identify the types of jurors who might sympathize with your case and the types of jurors who might be hostile. Unfortunately, busy lawyers pay little attention to the jury selection, treating it like a lottery, but a well-chosen jury will help to win a case. Additionally, the jury selection process is more important than the opening statement because it is the first contact that the lawyers have with the jury. While it might sound strange, this first impression will influence the jurors’ opinion about the entire case. Psychological studies prove that juries will tend to support the side with the most appealing lawyer.

During the trial, each side presents opening and closing arguments. In between these arguments, the prosecution calls witnesses and tries to establish proof of guilt beyond a reasonable doubt. The defense need not present any evidence or witnesses if the prosecution fails to meet its burden of proof. However, if a case goes to trial, the prosecution usually has enough evidence to convict a defendant. Therefore, the defense will normally call witnesses to attack the key evidence and to present alternative theories about what happened at the time of the alleged crime.

A trial often turns on two key moments: the cross-examination of a police officer or an accuser, and the closing argument. The cross-examination of a police officer or an accuser will cast doubt on the investigation or the believability of the accuser, who often has ulterior motives for bringing charges. The closing argument is the last contact with the jury and the last chance to convince them of the defendant’s version of the facts. Again, psychological studies prove that a jury will sympathize with the side presenting the best closing argument. After all, it is the last contact before they deliberate.

The best trial lawyers understand that a jury responds to a clearly relatable story, an emotional connection to the defendant, and a professional presentation of the case. Many convicted defendants have complained of overworked public defenders meeting with the defendant only moments before a trial and not preparing the defendant for cross-examination.

At the Law Office of Adam Bevelacqua, a defendant will always receive meticulous preparation and rehearsal from a lawyer who understands both the law and the psychology of jury deliberations. Studies show that two lawyers can present the same case to two different juries and receive two different verdicts. In a jury trial, style matters just as much as substance.

Sentencing

In the event of a conviction, the judge will sentence the defendant. In felony cases, this usually happens during a separate hearing where each side argues for harshness or leniency. A good lawyer will have detailed information about the client’s life over the previous decade and will present compelling reasons for leniency. A previous criminal record will influence a judge, but a lawyer can still present specific reasons for why the current charge does not require a prison sentence or why the defendant should have another chance.

For more information, see sentencing chart.

Parole

A parole officer can intrude into a person’s life for many years after a prison sentence. The Departments of Probation and Parole will assign an officer on a random basis, and depending on the luck of the draw, the officer may be either easygoing or hardcore. Some POs make weekly unannounced visits at odd times, search the home or apartment, force the parolee to take a drug test, and restrict travel and employment. With a strict PO, one misstep may result in a violation and even incarceration.

The Law Office of Adam Bevelacqua can defend a client from an unjust PO and work with the department to reassign the client to a fairer officer.  Contact the Law Office of Adam Bevelacqua at (917) 656 - 7076 or bevelacqualaw@gmail.com and speak to a criminal defense lawyer immediately.