You’ve Been Arrested… Now What?

It is your unlucky day. The cops have just arrested you and now they want to get a statement from you. Or, perhaps, they are still investigating and have decided to come talk to you. What should you do?

The very first thing you should do is to ask to speak to a lawyer.

The police often make promises that they cannot or have no intention of delivering on. There is nothing illegal about this. Don’t rely on promises of leniency or the line that it is your civic duty to cooperate. If you are a suspect the police are not your friends. If they are asking you questions, then you are a suspect. Tell them nothing. Ask for a lawyer and shut up. Do not pay attention to their threats. If you are going to be charged, it will be because of the evidence that they have. If they have evidence, they will charge you. If they don’t, they will not. If you talk to them, the only evidence they ever get may be your own statement.

If you are arrested, you’ll be “booked.” What this means is that you will be processed into your local jail. You will be fingerprinted and photographed. Then you will be put in a holding cell until you can be brought in front of a magistrate or judge. The judge or magistrate may or may not ask you if you are guilty. Their role at this stage is to set a bail bond and perhaps see if you need a court appointed lawyer.

You have the option of release on bond unless your alleged crime is such a violent one that no bond is to be set. Some murder charges and seriously violent crimes may have no bond at all. If your offense is relatively minor, you may be released on a personal recognizance bond. This is usually pretty rare. Normally, a bail bondsman will charge a fixed percentage of the bail amount as their fee for posting the bond. They are basically making you a loan to purchase your temporary release. If you fail to appear at court the bondman loses his money and will come looking for you or your family’s assets to pay him back. Typically in my area bondsman charge about ten percent of the bail as their fee. You will not get this money back when your case is over.

Whether you bond out or not, you can expect to be brought before a judge again in the near future for something called an “arraignment.” Typically, this is the time when you plea guilty or innocent. At this stage you may be appointed a lawyer if you could not afford one or you may be given time to hire one.

You may notice at this point that my article tends to be a little general about the procedural aspects of the criminal justice system. This is because these procedures tend to be different in different parts of the country. In my state, Texas, the process seems to be just a little different in just about every court I visit.

In any event, at this point you will likely need to hire a lawyer if you have not done so already or have not been appointed one. In order to be appointed an attorney you will likely be asked to give evidence that you are indigent and cannot afford one. Many judges in my state, whether it is legal or not, will not appoint an attorney if you have bonded out. The reason behind this is that if you could afford bail then you could afford a lawyer. The general idea is that you should have spent your money on an attorney rather than on a temporary release from custody.

There is some truth to this reasoning. Bail is just a temporary release from jail. If you are convicted or enter a plea you might be back in jail again soon. Hiring a lawyer with the money, however, might result in a permanent release from jail or it might result in some jail alternative, such as probation.

After the arraignment your case will probably be set for at least one hearing date for you to decide whether or not to enter a plea bargain. In my state these are called “disposition settings.” There may also be settings for Motion Hearings and other hearings.

In Texas, if you were charged with a felony you will have to be indicted by a Grand Jury before your case can proceed to trial in Texas. This means that a panel of people will have to hear the State’s version of the evidence and decide if there is enough evidence to proceed to trial. This is a sort of screening mechanism to save Taxpayer money. In Texas you have no legal right to present evidence at this hearing or even attend. If you do attend you have no right to legal counsel in the hearing room. You cannot be compelled to testify at this hearing.

Once you are indicted you may be offered a plea recommendation by a prosecutor may offer you a plea recommendation. You are not required to enter into any kind of plea bargain. In a criminal case you basically have two choices at any time. You can negotiate and enter a plea bargain or you can set your case for trial and let a jury decide. No one can make the prosecutor offer a better deal than they offer. They cannot make you accept a plea recommendation that you do not want. If you refuse the offer and cannot reach an agreement, then trial is your only alternative.

Trial in a criminal case is different than trial in a civil case. The prosecutor generally goes first in jury selection, opening statement, presenting witnesses and closing argument. In my state the prosecutor gets to do his closing argument first and last. You do not have to testify at trial. You have a 5th Amendment right to not testify. Sometimes this is important. If you have a lot of prior convictions and then testify, the prosecutor will get to talk to the jury about a lot of these prior offenses. If you do not testify, then the jury may never hear about those prior offenses. In the context of a jury trial many jurors tend to believe that where there is smoke there is fire.

This may mean that if they hear about other offenses of yours they may tend to be more likely to accept the prosecutor’s version of the case and that you committed this crime you are charged with. In many instances it can be better not to testify if you have a prior criminal record.

If the jury finds you not guilty then you go home a free person. If they find you guilty you will have to be sentenced. In Texas you would have a separate hearing on punishment. Prior to the trial your lawyer will have filed an “election.” What this means is that your lawyer will tell the court whether he wants the jury to assess punishment or the judge to in the event of a conviction. This is often a matter of strategy. Some judges have a history of being hard on crime and therefore you might be better having a jury decide punishment. In any event, in Texas, this decision must be made before the trial and not afterwards.

Possible consequences of a conviction in Texas are incarceration in the Texas Department of Criminal Justice, incarceration in a State Jail facility, incarceration in the County Jail, probation, fines and many other possibilities.

In a nutshell, this is about what you can expect from the criminal justice system. There may be some procedural differences depending upon where you have been charged. Many court procedures are geared towards intimidating you into entering a plea bargain. Large crowds will be at virtually every hearing. Prosecutors and court personnel will be pushing people through like a heard of cattle. The object is to dispose of cases as quickly as possible. A good lawyer will throw a wrench in their works by establishing early that your case will not be quickly disposed of and that you will not be taking whatever they feel like offering. Find a good lawyer. There are many out there!