Criminal Law

Q. What are my rights, if I'm arrested?
A. Most of your rights emanate from the New York State Constitution and the Bill of Rights - the first ten amendments to the Federal Constitution - and the courts' interpretation of those rights. Initially, before the police can interrogate you, you are entitled to receive a "Miranda warning," that you have the right to remain silent, that anything you say may be used against you in a court of law, and that you have the right to an attorney, and if you cannot afford one the state will appoint one, free of charge. You also have a Fourth Amendment right against "unreasonable searches and seizures." What that means, basically, is that the police must have a search warrant before any search can be conducted unless it is part and parcel of an arrest. If the matter proceeds to trial, under the Sixth Amendment you have a right to be tried by a jury, and a right to confront all witnesses who may testify against you. You also have a Fifth Amendment right against self-incrimination. The Fifth Amendment guarantees your right to remain silent, and you cannot be forced to take the witness stand to testify if it would tend to incriminate yourself. Finally, you are presumed to be innocent until proven guilty "beyond a reasonable doubt." The arrested defendant should be guided accordingly, but, above all, should make immediate contact with a lawyer before making any statements or taking any independent action in order to avoid a waiver or any constitutionally guaranteed rights.

Q. How does a Grand Jury operate?
A. The Grand Jury consists of not less that 16 nor more than 23 individuals who sit to hear and examine evidence of criminal conduct. After it has heard the evidence, it may return an indictment, direct the prosecutor to file an "information" (charging a non-felony), or refuse to return a "true bill" (dismiss the charges). You are not entitled to have an attorney in the Grand Jury room, but may leave during the questioning to consult with your attorney. Subject to some very important exceptions, any witness testifying in a Grand Jury proceeding automatically receives immunity from prosecution.

Q. When a judge sets bail, what standards are used?
A. The judge will consider your character, reputation, financial resources, family ties, length of residence in the community, criminal record, your previous history of responding to court appearances, and several other factors, but the bottom line determination is the probability of your returning to court rather than fleeing the jurisdiction.

Q. What's the difference between a felony and a misdemeanor?
A. That depends upon the punishment provided by the statute covering the particular crime. If, for example, the statute provides for imprisonment in excess of one year, the crime for which that punishment is prescribed is considered a felony. A misdemeanor is a crime for which a sentence to a term of imprisonment in excess of one year cannot be imposed.

Q. What's the single most important "right" for me to know about if I'm arrested?
A. That you are entitled to be represented by a lawyer at every stage of the proceeding. Call us immediately.

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