The police want to speak with me but I haven’t been charged with a crime yet. Should I speak with the investigating officer?
Answer: NEVER speak to law enforcement without an attorney. That is the golden rule. While you may think this is an opportunity to “clear your name” and that you have nothing to hide; if the police want to speak with you about a crime, they already believe you’re a viable suspect. The only thing you can do is hurt your case as anything you say to law enforcement can and will be used against you.
Listen to what Professor James Duane says about speaking with the police…
Listen to what Officer George Bruch says about speaking with the police…
What are my constitutional rights?
Answer: In Maine, a person accused of a crime has a right to a jury trial made up of 12 residents of the county where the offense occurred. They have the right to have this jury hear all of the witnesses and see all of the evidence approved by the court. They have a right to be present during the trial and while the jury is hearing the case. They have the right to see, hear, and confront the witnesses. They have the right to call witnesses of their own, and to have the court issue subpoenas to assure that they appear. They have the right to testify themselves should they choose to do so, but, in accordance with the right to remain silent, a defendant cannot be forced to testify if he or she does not want to. In order for the State to prove that you committed a crime, the State must prove its case against you beyond a reasonable doubt using lawfully obtained and admissible evidence.
What is an arraignment and do I have to be there for it?
Answer: An arraignment is your first opportunity to plead guilty or not guilty to criminal charges. If you retain an attorney to represent you, your appearance can be waived under certain circumstances. However, in most felony arraignments, you must appear in person; regardless of whether you retained an attorney.
What is a Status Conference and do I need to appear?
Answer: If you were charged by the police with a felony, your first appearance will be for a status conference. You must appear for these proceedings even if you are represented by an attorney. At the status conference, the judge will read the charges against you but you will not enter a plea. Rather, bail will be set and the judge will ask the prosecutor when he expects that an indictment will be returned against the defendant.
Maine uses the Grand Jury indictment system. Grand Juries are extremely secretive and only the judge, members of the grand jury, the prosecutor and his witnesses are present. Neither the defendant nor his attorney is allowed to attend Grand Jury proceedings. Once an indictment has been returned by the Grand Jury, a date will soon be set for arraignment.
What is bail & are there other release alternatives?
Answer: Posting bail is the most common way to get out of jail prior to your initial court appearance. Some people choose to post a cash bond in return for temporary release. This bond is advanced by the defendant, or by a third party on behalf of the defendant. If a victim is involved in a crime of violence, you can expect that a condition of your bail will include a no contact provision regarding the victim. In all domestic violence cases this is a standard condition. Likewise, if your case involves a crime where you were intoxicated, under the influence of drugs or in possession of drugs, your bail conditions will have conditions of no use or possession of illegal drugs or alcohol. In addition, you could be subject to random search and testing of your person, your home and your motor vehicle for drugs or alcohol. These conditions can include a no probable cause provision so it is always best to retain an attorney to ensure that your bail conditions are appropriate.
During your bail hearing, your attorney will have the opportunity to argue your bail and any conditions that the State may seek to impose. During a bail hearing, the most important inquiries are whether or not you are likely to flee the state or country if released; the likelihood that you will re-offend upon release from jail and the seriousness of the crimes charged. There are many other considerations that the Court will take into account but these are of primary importance when considering bail. Other release alternatives include personal recognizance programs and/or unsecured bail. If you fail to make bail following your arrest, you must be brought before a judge within 48 hours so that the court can read the charges against you and set bail in your case.
What is the difference between a misdemeanor and a felony and what are the penalties?
Answer: Misdemeanors are the least serious of criminal offenses and they fall into two classifications: Class E (least serious) and Class D (more serious) misdemeanors. The maximum penalty for conviction on a Class E crime is 6 months in jail and a $1,000.00 fine. The maximum penalty for conviction on a Class D crime is 364 days jail and a $2,000.00 fine. Probation is likely on certain Class D crimes. Felony crimes are the most serious crimes and fall into three classifications: Class C, Class B and Class A crimes. Class A crimes are the most serious crimes and included murder and manslaughter charges. The maximum penalty for a Class C conviction is 5 years prison and a $5,000.00 fine. The maximum penalty for a Class B conviction is 10 years prison and a $10,000.00 fine. The maximum penalty for a Class A conviction is 30 years prison for murder and a $25,000.00 fine. If you are convicted of a felony, you will most likely spend at least part of your sentence on probation.
What are mandatory minimum penalties and how do they apply in my case?
Answer: Certain types of crimes carry mandatory minimum penalties. For example, a 2nd offense OUI conviction carries a mandatory minimum penalty of 7 days jail plus a $700.00 fine. In drug trafficking cases where a person was convicted of a prior drug offense, a 4 year mandatory minimum prison term applies plus a $400.00 fine. These are mandatory minimum penalties. Depending on your particular situation, the penalties imposed by the court could be higher. However, not all criminal charges carry a mandatory minimum fine or jail term.
Questions revolving around criminal law & trial
If no disposition is reached on your case, it will be set for trial. In Maine, all felonies fall within the jurisdiction of the County Superior Court and thus set for a jury trial unless the client chooses to waive a jury trial prior to trial. In addition, all misdemeanors fall within the jurisdiction of the District Court and the case will be tried by a single judge unless the client or his/her attorney requests a jury trial within 21 days of arraignment.
The form your trial takes will depend entirely upon the particular circumstances of your case. If you decide to retain Attorney Bly, he will develop an overall theme to your case and call witnesses who will support your innocence. He will also weaken the State’s case through cross-examination of their witnesses and impeachment of their credibility. Attorney Bly is always ready to take a case to trial when it is in the best interests of the client. However, sometimes a negotiated plea is the best choice for the client. All options available will be discussed with the client and decided upon prior to trial.
Prior to trial, your attorney will have the opportunity to select a jury. However, attorneys are not allowed to voir dire or question the jury directly. Rather, the judge will ask prospective jurors questions that he has prepared before hand as well as questions submitted by the defense and prosecution.
Once the jury has been selected, your attorney will argue whatever motions are required in order to secure you a fair trial. This argument will usually take place in chambers with the judge and out of the hearing of the jury. After those motions are heard, the trial will commence. The prosecution will give an opening statement. Your attorney can give an opening statement either at that time or reserve opening statement until after the prosecution’s case is over.
After the opening statement, the prosecution will present its evidence in the form of physical and scientific evidence and expert and lay witnesses. Your attorney will have the opportunity to cross examine each of those witnesses.
Once the prosecution rests the case, your attorney will present your case, calling any helpful witnesses to the stand. These witnesses can include witnesses who witnessed the event or heard others talking about the event. After your attorney finishes his case, the prosecution has an opportunity to put on rebuttal evidence. Once all the evidence is closed, the prosecutor and your attorney will give a closing argument to the jury. If you retained Attorney Bly, he will focus on reasonable doubt and the facts of your case. The closing argument is an opportunity to wrap up all the evidence and tell the final story to the jury. This is an opportunity to present a “road map” to the jury to assist them in returning a verdict of not guilty.
The jury will then retire to reach its decision. In Maine, the jury must reach a unanimous decision. If they are deadlocked and cannot reach a decision, a mistrial will be declared by the judge. If a mistrial is declared, the prosecutor can choose to retry the case or dismiss the charges. Sometimes, if it is in the best interests of the client, a plea agreement will be reached for a lesser crime so as to avoid exposing the client to the risk of a conviction on the second jury trial.
What is a plea bargain?
Answer: A plea bargain generally means you agree to plead guilty to a lesser crime in exchange for dismissal to the original charges. Sometimes a plea bargain can include a plea to the original crime but for a lesser sentence. Plea bargains are arranged between the DA and the Attorney and approved in advance by the client. The vast majority of criminal cases are resolved through plea bargaining.
What if the judge refuses to accept my plea?
Answer: While unlikely, this may happen when the DA and client agree to a plea on a charge and the judge feels the plea is too lenient and/or doesn’t reflect the seriousness of the crime. In cases where the judge refuses to accept the terms of a plea agreement, you have the option of restructuring the plea or taking the case to trial.
What is an “open plea”?
Answer: Most cases that plead out prior to trial are through agreement with the DA for a specific sentence. Sometimes agreements can’t be reached and trying the case before a jury or judge is not an option (usually due to the weakness of the defenses). In those cases it may make sense to plead guilty and argue for the sentence you feel the court should impose. The court is then free to sentence you to any lawful sentence provided by the statute. In some cases the sentence will be less than the DA was asking for and in other cases it might be more than the DA was seeking. Usually you don’t plead open without at least getting “a read” on the judge to make an educated guess about where he or she is going to come down on the sentencing issue.
Questions revolving around criminal law & sentencing
A defendant who is charged with committing a crime and found guilty, either by way of a jury verdict or a plea of guilty, is sentenced by the trial judge. The sentence imposed is based upon certain criteria following state and federal sentencing guidelines. Important criteria may include the nature of the crime committed and the defendant’s criminal history. Additional factors are considered by the judge as either mitigating or aggravating circumstances and may decrease or increase the severity of the sentence.
