FAQs: Simplifying the Criminal Justice Process
If you’ve been arrested for a criminal offense, you likely have many questions about the process, about what you can expect and what effect this will have on the rest of your life. An experienced lawyer can walk you through the process, giving you the information you need when you are dealing with police or prosecutors.
I am attorney Shannon D. Sexton; I represent people accused of crimes throughout Kenton County, Campbell County and Boone County. I have compiled answers to typical questions my clients ask; if you have further questions or want to discuss the facts of your case, online or at 859-431-9999.
Could I get jail time for this charge?
If you have been charged with a crime, make no mistake, you could go to jail. Almost everyone charged with a criminal offense faces the possibility of incarceration.
The risk of incarceration increases based upon the severity of the criminal charge. However, a good defense and a good attorney can often result in avoiding incarceration.
How can they charge me with this crime with so little evidence?
While the government has to prove you guilty beyond a reasonable doubt at trial, the government only needs probable cause to arrest and charge you with a crime. Further, in the Commonwealth of Kentucky, the prosecution often has a right to try your case to a jury. So, just because the case against you may appear weak does not mean that you will not have to fight for your liberty.
The officer did not read my Miranda Warnings to me, does this impact my arrest?
Miranda Warnings are primarily applicable to the admissibility of one’s statements made to the police after being placed into custody. So, if you have been arrested but you have made no statements, then the officer failing to read you your Miranda Warnings has no evidentiary impact on your case. In other words, an officer failing to read you your rights does not mean that the arrest is illegal.
Do I have to consent to a police officer’s request to search my person or property?
No, you do not have to consent to a police officer’s request to search your person or property. The Constitution is designed to protect our personal liberties. The government can only invade those liberties through certain constitutional exceptions. If a police officer asks for your permission or consent to search your person, your vehicle, your house, or any other property, you should respectfully decline to consent.
The consent search is one of the most common ways police officers avoid your constitutional protections. People often don’t realize they have the right to simply say no to a police officer’s request. If you are subject to contact with law enforcement, you should respectfully decline an officer’s request for consent to search and request to speak to an attorney.
Remember, however, that you do not have the right to physically stop the officers from searching even if you think they are doing so in violation of your rights. Touching an officer will only result in additional criminal charges. Your power is to verbally exercise your constitutional rights. Please review my dos and don’ts for people who are criminal suspects.
But what if the officers threaten to bring a drug-dog to sniff the car and I am afraid the dog will alert on my vehicle or property, should I consent then?
You should always refuse the police officer’s request to search your property. Many times this threat to bring-out the drug dog is a bluff. Even if it is not a bluff, there is no guarantee the dog will alert. Even if the dog alerts, you are still exercising your constitutional rights which may enable your attorney to protect you in the future. Do not consent to a search.
Should I answer the police officer’s questions?
No. If you are having contact with a law enforcement official, it is very likely that you are the subject of a criminal investigation. You are required by law to accurately provide your name and identifiers. In other words, it is a crime to lie about who you are, but that is all you have to say.
I advise my clients to act as if they are a prisoner of war. Give the police officers your accurate information, and then repeat after every question that you want to talk to an attorney. That does not mean you are entitled to see an attorney immediately, however, it is an established manner to exercise your constitutional right to remain silent. Further, because asking for an attorney is your constitutional right, this act can never be used against you in a future case.
Talking to the police when you are the subject of an investigation is almost never a good idea. Remember, officers are trained to get you to talk so they can get information they can use against you. Even if you think you are helping yourself by explaining things to the officer, you are most likely hurting your case. So, when a police officer asks you questions, give them your correct name and ask to talk to an attorney. Repeat this process every time the officer asks you a question.
But what if the police officer says they will go easier on me if I talk to them?
You should still refuse to talk to the police and you should still persist in asking to talk to an attorney. The police are trained to trick you, and the law allows them to do so. When you are the subject of an investigation you need to understand that the police officer is not your friend. You should understand that most likely it is the officer’s job to take you to jail. By talking to the police you only increase the likelihood that the prosecution will have a stronger case against you.
You should never attempt to explain your situation to a police officer without first consulting with an attorney. If you have already done this, however, you are in good company. Most people do not realize the full extent of their rights, and most people talk to the police and consent to searches. A good attorney can still help you.
Can I be charged for another person’s conduct?
Yes. In the Commonwealth of Kentucky, the most common legal terms of art describing this concept are Complicity and Facilitation. The most famous example is that the get-away-driver is just as responsible as the armed-robber in a bank robbery case. These concepts often result in everyone in groups of people being charged for the same alleged criminal conduct.
Where does my case begin?
Everyone charged with criminal activity in the Commonwealth of Kentucky first goes to District Court. District Court has jurisdiction over misdemeanors and violations. However, felonies also begin at the District Court level before being bound over to the Grand Jury.
What happens with my case after District Court?
After your case is bound over to the Grand Jury, this time-frame is normally described as awaiting indictment. Your case is assigned to the Commonwealth’s Attorney in the jurisdiction of the crime. The Commonwealth’s Attorney is the elected official who then normally assigns your case to one of his assistants, who hold the positions of Assistant Commonwealth’s Attorneys, more simply known as felony prosecutors.
The assigned Assistant Commonwealth’s Attorney then reviews your case and decides what charges to seek to the Grand Jury for indictment. This is why you may go months without a future court date. Although you are not going to court at this time, your case is being investigated by the prosecution. It is at this time that you may have the opportunity, if you have an attorney, to approach the prosecution and convince them that the case against you is weak and you should not be charged at all or perhaps charged with a lesser offense. If you do not have an attorney, you lose this invaluable opportunity to fight your case.
Should I get an attorney?
I would never walk into Court without an attorney. Remember, anything you say can and will be used against you. Your attorney is your shield and your defender. Your attorney can speak for you without providing any evidence against you. In addition, your chances of successfully making defense arguments or finding mistakes in your case are much greater if you have an attorney assisting you. If you are charged with a crime, an attorney is your best opportunity to avoid or reduce potential penalties and imprisonment.