Frequently Asked Questions on Criminal Defense and Criminal Defense/Immigration
Criminal Defense & Immigration
1. What should I expect from a good criminal defense lawyer?
You should expect that your criminal defense attorney have the knowledge of the law and experience defending the type of charges you are facing as well as experience in the court where the charges were filed, and that he/she is a skilled litigator and negotiator. Not all criminal defense lawyers are experienced in both state and federal courts, so it is important to find out where the attorney has practiced and if he or she has defended similar cases.
At FitzGerald Law Company, we practice criminal defense in the State and Federal courts in Massachusetts, New Hampshire, Rhode Island, Connecticut, and Florida, and have defended a wide variety of criminal charges. We are seasoned litigators and our negotiation skills reflect our vast experience.
In addition, you should expect help with alternative scenario planning, evaluation of your options and risk assessment. This means that the attorney will listen objectively to your situation and that he/she will help you understand the possible scenarios, evaluate the pros and cons of the available legal options, properly assesses the risks involved, and communicate clearly with you as to what will be the best course of action. You should expect that the communication be open and timely, that copies of all records and all the filings produced by the attorney and the government on your case will be provided promptly, and that your calls get returned in a reasonable time frame. Information about the proceedings and possible outcomes must be provided in a timely manner so that you have time to prepare for the outcomes.
You should expect that communications with your attorney will be kept confidential and that your attorney make you comfortable and not judge you when you give him information. Theses communication and case management practices are engrained in FitzGerald Law Company’s internal processes and procedures, so we are proud to be able to provide the highest level of professional service to our clients in a consistent manner.
Finally, you should expect that your attorney will be creative and effective, so that he/she is able to come up with a proper resolution of your case. At FitzGerald Law Company we are known for our creativity and for the development of innovative ways to resolve criminal, immigration and personal injury cases for our clients.
2. What happens after a person is arrested?
Generally a person who has been arrested is brought to the police station where he/she is “booked”. This means the police will take personal, historical and biographical information. The police will use this information to determine if the individual has any warrants or a criminal history in order to evaluate whether or not he/she can be released from custody and whether the payment of a bail/bond is required.
Depending upon the jurisdiction, if the authorities intend to detain an individual, the person may have a right to have their detention reviewed by a judicial official.
Generally, the police will file a criminal complaint in court and the individual will be required to appear before that court. During the arrest procedure, officers may also seize property, records, and/or materials as evidence.
3. Does a person have to speak to the police after they have been arrested?
No, the US constitution, as well as the Federal and State laws, do not require an individual who has been arrested to speak to the authorities, with the exception of providing basic information about one’s identity. The decision of whether or not to speak to the police is a very important one and it should be evaluated with your attorney as soon as possible.
4. What is a clerk magistrate hearing?
In Massachusetts a clerk magistrate hearing is a hearing where a clerk magistrate will review evidence such as testimony and documents, to determine whether a criminal charge should be filed against an individual.
In Massachusetts not only the police, but also individuals can request that a criminal charge be filed against a person who is believed has committed a crime by petitioning for a clerk magistrate hearing at the District Court. Clerk magistrate hearings are a critical part of the criminal process in Massachusetts, especially for a person who is being accused of a crime. It is an opportunity for them to hear and review the accusations being made against them and to respond to those accusations before a formal criminal charge is filed.
It is critical if you are involved in a clerk magistrate hearing, that you get the assistance of a qualified and experienced attorney to represent you in these proceedings, as resolving the case at this level can save time, money and anxiety.
An arraignment is the initial formal proceeding before a court in a criminal matter. Generally, the court will announce the charges that have been filed against the defendant. The defendant will enter a plea or often times the court will enter a plea of not guilty on the defendant’s behalf.
The prosecutors can ask the court to enter an order of detention or in some cases, restrictions on the person’s freedoms if they are released. The arraignment happens after a criminal complaint is filed by the police, after an individual is arrested and charged or a clerk magistrate approves an application for a criminal complaint after a clerk magistrate hearing.
6. What is the process after criminal charges are filed in court?
If a person has been arrested, generally they must appear for an arraignment, at which time the charges will be publically announced, a plea of not guilty will be entered on behalf of the defendant and a determination of bail or conditions of release will be presented to the court.
In Massachusetts, while the law provides for a presumption of release without conditions, the prosecutors are permitted to request that restrictions be placed on the defendant. These include, payment of a bail/bond (an amount of money that must be posted to secure that the defendant will return to court), a “stay away order” (an order that says the defendant cannot go to the location where the crime allegedly occurred or to have contact with the alleged victims or other similar limitations), and finally, that if the defendant is charged with another criminal offence during the time in which the case is open, he/she will be held in custody for up to 60 days. An arraignment is an extremely important event in most cases because the conditions of release often determine how effectively an individual can defend his/her case (i.e. have access to therapy or treatment, ability to maintain employment and support family, greater flexibility to meet with his/her attorney and prepare for hearings, etc.) It is therefore recommended that you obtain the services of an attorney prior to the arraignment whenever possible.
In Massachusetts, the court will schedule an arraignment generally followed by a pretrial conference or pretrial hearing. The court will then schedule hearings on any relevant motions and if the case is not resolved, it will schedule a trial before either a judge or a jury.
7. What is a pretrial conference or pretrial hearing in a criminal case?
In Massachusetts, New Hampshire, Rhode Island and Connecticut, after criminal charges have been filed and a defendant has been arraigned, the court will schedule a pretrial conference or a pretrial hearing. These are similar events at which the prosecution and the defense attorneys meet to exchange evidence and to discuss the legal issues presented in the case.
In Massachusetts a pretrial conference report is submitted to the court that outlines the procedures that the lawyers are going to engage in for the case. For example, the report will identify what type of motions will be filed, whether there are agreements on factual issues, what type of evidence will be presented and the number of witnesses that will be called to testify, and whether the case will be heard by a judge or a jury.
8. If the person who called the police or who put the criminal charges does not want to go to court or continue with the case, will the charges be taken away?
Not necessarily. Criminal charges are processed by the state/government and not by an individual. The fact that an alleged victim does not want to participate or testify, may convince the prosecutor to dismiss the charges, if there are no other witnesses or convincing source of evidence against the defendant.
The determination to dismiss a criminal charge rests with the prosecution or in certain circumstances the judge, not with a witness. In many counties in Massachusetts, the Offices of the District Attorneys/Prosecutors have policies against dismissing charges, particularly related to domestic violence, merely because a witness states that they do not want to testify.
9. What is the difference between a felony and a misdemeanor?
A misdemeanor is generally a less serious criminal offense. In Massachusetts it is not punishable by a “state” prison sentence. However, under federal law a misdemeanor is a crime punishable by less than one year in prison.
On the other hand, a felony is a more serious criminal offense. In Massachusetts a felony is punishable by a state prison sentence, even if a state prison sentence is not ordered. Under the federal law a felony is an offense that is punishable by a sentence of a year or more of incarceration.
Under immigration law, there is a separate definition for a felony, specifically, an “aggravated felony”. This definition set forth in Section 101(a)(43) of the Immigration & Nationality Act, may include charges that would be misdemeanors under the applicable state law.
10. What is the difference between a State criminal charge and a Federal criminal charge?
A “State” criminal charge is a violation of the law of a state that is prosecuted in the state court system. While a “Federal” criminal charge is a violation of Federal law that is prosecuted by the US attorney’s office in the Federal court system.
If a conviction was improperly obtained, a petition (motion) can be filed with the court requesting that the conviction be eliminated/reserved. If a conviction is vacated, the charge is generally reinstated and the case will proceed to trial. Vacating a conviction can be extremely important for an immigrant, as a criminal conviction could lead to the immigrant’s deportation. Generally, once the conviction has been vacated, then the immigrant is no longer deportable. Vacating a conviction is also important for sentencing. If someone is convicted of a crime and they have previously been convicted of a crime, they would generally face a greater sentence. If the previous conviction is vacated, then the sentence can be reduced.
12. How do you get a conviction vacated?
The most common way that a conviction is vacated is through a motion that identifies a legal error in the case that caused the conviction. For example, if a defendant waived his right to trial and the court failed to advise him/her of the consequences of waiving his right to trial, as required by law, this legal error can result in the conviction being vacated. In 2010 year, the Supreme Court ruled that the failure of a lawyer to advise his client about the immigration consequences of a guilty plea was a violation of the defendant’s constitutional due process rights and would require the conviction to be vacated.
13. Can vacating a conviction help my immigration case?
Generally, if someone is having an issue with their immigration status due to a criminal conviction, if that criminal conviction is vacated, in most circumstances the individual will not have additional issues. However, since vacating the conviction will reopen the criminal case, the original criminal case must be defended and if not defended successfully, the immigration problem will likely reappear.
14. I have been told that there is a warrant for my arrest. What should I do?
If there is a warrant for your arrest, it is important to review your situation with a qualified criminal lawyer so that a defense strategy can be established for your case.
15. Can a Warrant be removed?
Yes, a warrant is removed upon the appearance of the individual before the court. The existence of a warrant generally means that a criminal charge is pending before a court and that the court has made a preliminary determination that there is “probable cause” that the individual committed the criminal offense.
A warrant may also be issued, after a criminal proceeding has been initiated if the individual has not complied with an order of the court; for example, attending a hearing, paying a fine, or properly completing conditions of probation.
In very rare circumstances, an individual may have a warrant removed without his appearance before the court, for example, if a warrant was issued because an individual did not comply with the court’s order of attending a rehabilitation class, and the attorney can prove that the individual properly attended the class, then the court may remove the warrant without requiring the individual to appear.
16. If I am not a US citizen (I am an undocumented immigrant, an immigrant with a visa, legal Permanent Residency or who has overstayed a visa), what will happen with my immigration status if I am arrested?
The impact that a criminal process will have on a non-citizen depends on a number of factors, including, the immigration status of the individual, the nature of the criminal charges, and the length of time the individual has been in the US, and his eligibility for benefits under the immigration law.
In general, all criminal charges will have a direct impact on a non-citizen, even a legal permanent resident. Also, the more serious the alleged criminal offence is the more serious the impact will be. It is critical for a non US citizen/immigrant to obtain representation from an attorney that has substantial experience in both criminal and immigration law.
In Massachusetts and most other states, bail/bond is paid to the court that issued the order of detention.
Generally an individual may pay the bail (post the bond) in the office of the court during regular business hours.
In the alternative, bail or bond may be posted at the detention facility where the detained individual is being held at specific times and hours. Bail or bond may be paid in cash, by pledging a property, by certified bank check, and in some states by purchasing a Surety (an insurance policy from a licensed bond company).
Yes, the court generally will have established a hearing date for the case and you will be required to appear before the court at that time, unless otherwise directed by the court.
19. How do I get the bail money back?
The bail money is returned to the Individual, who posted or paid the bail, when the court has enters a judgement or disposition for the case. After this has happened, the person who posted or paid the bail can take their bail receipt and their identification to the court and request the return of the posted bail.
Yes. There is a procedure in which a defendant can petition the court in which he was convicted to seal his record, which will prevent the general public, including potential employers, from gaining access to the criminal record. If you are not a citizen of the US, it is important to obtain assistance from a qualified immigration attorney about the effect that sealing your record will have on your immigration status. The Department of Homeland Security requires that a person present certified court records related to their criminal history when they are filing applications for seeking admission into the US, and a certified record cannot be produced if the court has sealed the record of the case.
21. Why should I hire an experienced Massachusetts/New Hampshire criminal defense attorney, if I have been charged with a crime in Massachusetts or New Hampshire?
Criminal charges generally will have a significant impact on all areas of an individual’s life, profession, family, education, etc. so it is vital that the criminal matter be addressed properly in order to minimize the potential negative consequences.
22. Can I change criminal defense lawyers if I am unhappy with the one representing me?
Yes, the Federal and State constitutions provide a criminal defendant with the right of representation by counsel, which has been interpreted by the courts to allow an individual the ability to hire any attorney they choose. This right does not exist in the same way, when an individual is not hiring an attorney, but using a court appointed lawyer. If you are not happy with the attorney you have hired, you should seek a new attorney as early as possible in the process of legal representation, because one of the few bases a court can deny a request to change attorneys is if there is insufficient time for the new lawyer to be prepared for trial.
It is important that the attorney understands your case and your individual circumstances as well as the law and procedures which your case involves, for example, if you are an immigrant or a non-US citizen it is critical that the attorney have a strong understanding of the immigration law as well as criminal law.
It is important that you feel comfortable and confident with the attorney that is representing you and that you understand the strategy that he is following, so that you build the necessary trust to follow your attorney’s instructions and recommendations. In our experience, a large part of the success in most legal proceedings depends on the client following such attorney instructions.
23. If I plan on pleading guilty, do I still need a lawyer?
24. If I get offered a plea bargain, should I take it?
Any offer or plea bargain should be evaluated carefully with the assistance of an experienced criminal defense lawyer, to ensure that your rights have been protected and that you understand the short term and long term consequences of the plea.
The cost generally varies and it depends upon the experience and in most cases the quality of the attorney and the nature of the case. Generally, the legal fees for attorneys with greater experience and qualifications will be larger than those for less experienced or qualified attorneys. In addition, the legal fees for representation in connection with a serious charge will be larger than those for a minor criminal offense.
26. Should I represent myself in a criminal case?
There is an old saying that has endured for many years and says that: A person who represents himself has a fool for a lawyer. A person generally does not have the knowledge and understanding of the law and the procedures and even if they possess that knowledge, they generally do not have the ability to evaluate their situation objectively due to their personal involvement. It is therefore, never recommended to represent yourself in a criminal case as there is a risk of serious life altering consequences.
27. Are lawyer’s results guaranteed?
No. Every case involves a number of different factors or variables that although they may be influenced and partially controlled by attorneys, they are not completely controlled by them. Results, therefore cannot be guaranteed, as they also depend on the nature of the case and the factors surrounding it. These may include, the strength of the evidence obtained by the police, the history and tendencies of the jurors and judges, the conduct of the client and witness, etc.