Frequently Asked Questions
Q: Do I need a lawyer?
A: Generally, if you can afford a lawyer, you should have a lawyer represent you throughout a criminal case, including clerk’s hearings, arraignments, pre-trial conferences, motions and probation surrenders. A lawyer can best protect your rights and help ensure a favorable outcome.
Q: If I am guilty, should I just plead guilty?
A: No. Generally speaking, you should not plead guilty. As a matter of fact, the court will automatically put in a plea of not guilty for you. Even if you are guilty, the court may dismiss the case for court costs. The prosecutor may offer pre-trial probation. Also, the court may offer you a CWOF (continuation without a finding), which is not a conviction. Remember, guilty or not guilty, the burden is on the state to prove you are guilty beyond a reasonable doubt. If not, you should be found not guilty.
Q: What is the difference between District Court and Superior Court?
A: As a rule, the more serious cases are handled in Superior Court. Sometimes there is jurisdiction in both courts. The case will always begin in District Court. If the District Attorney wants to move your case to Superior Court, he/she will bring your case before the grand jury, and they will decide if they want to indict you.
Q: Am I entitled to a Clerk’s Hearing?
A: If the charge is a misdemeanor and you have not been arrested, you are entitled to a Clerk’s Hearing. If you are not given this opportunity, your lawyer can ask that the case be dismissed. Sometimes, you will still be offered a hearing even though the charge is a felony.
Q: What happens at a clerk’s hearing?
A: A clerk, who is not a judge and generally not a lawyer, will decide if there is probable cause that you committed a crime. If so, he/she can issue a complaint. In that case, you will appear (sometime in the future, not then) before a judge and be arraigned on the charge(s). However, just because the clerk finds probable cause, he/she does not have to issue a complaint. If you have a lawyer, he/she will do most (or all) of the talking and help ensure that a complaint does not issue.
Q: Am I entitled to a lawyer in court?
A: You can always hire your own lawyer. However, if you could go to jail on your charge(s) and you are indigent (you cannot afford a lawyer), the court will appoint a lawyer for you for $150 to $300.
Q: What happens if I am summonsed into court for an arraignment?
A: First, you will be interviewed by an officer of the court to determine if you are indigent (you cannot afford a lawyer). Then, you will appear in court, where you will be arraigned (or formally charged) by the court. You will be prosecuted by a police prosecutor or an ADA (Assistant District Attorney). If the ADA wants bail, your lawyer will generally argue against it. You will then be given a date for a (PTC) pre-trial conference, at which time the ADA and your lawyer (unless you waive your right to a lawyer) will discuss discovery of evidence. After your PTC, you will be given other dates for motions, compliance & election, and trial. At anytime, your lawyer and the ADA can work out a plea. Any plea must be approved by the judge.
Q: Are sentences mandatory?
A: Depending on the charge, some sentences are mandatory (e.g., oui 3rd, driving while your license is suspended because of an oui, and certain gun charges), but most are not.
Q: If a police officer does not read me my Miranda rights, must the case be dismissed?
A: No. If you are in custody and answer an officer’s questions without being told you have a right to an attorney or to be silent, then any incriminating statements you make might be suppressed, which means those statements cannot be used against you at trial. However, you can still be convicted on other evidence.
Q: Can a police officer search me or my car for no reason?
A: No. The officer must have a reasonable suspicion that you committed a crime or you are under arrest, or an inventory search is being carried out prior to a car being towed. If the search is illegal, any evidence may be suppressed. However, you could still be convicted on other evidence.
Q: What is the difference between a misdemeanor and a felony?
A: Misdemenors are usually handled in District Court. The maximium penalty cannot exceed 2 ½ years in a house of correction. A felony can carry more than 2 ½ years and can be served in state prison. Examples of misdemeanors are: assault & battery, driving on a suspended license, oui, trespass, disturbing the peace, and indecent exposure. Examples of felonies are: assault & battery with a dangerous weapon, rape, robbery, and murder.
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