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Criminal Defense FAQ

What rights do I have at the time of arrest?

You have a Constitutional right to remain silent, to have a lawyer present while you are questioned, and to an appointed lawyer if you cannot afford one. These warnings are usually read to you at the time of the arrest in the Miranda warning. An officer only has to read you the Miranda warning if he/she is going to ask you questions and you are in custody.

Can I be questioned once issued my rights, even without an attorney present?

Yes, if you agree to be questioned.

When should I tell my story?

You should only tell your story to your attorney, under the privilege of confidentiality. After that, your attorney will tell your story. It is critical to remember that what you say may be used against you. In certain cases, anything you say to anyone else may also become evidence against you.

When can a police officer conduct a search?

An officer can search you or your property with your consent, with a search warrant, or, in some cases, when you have been arrested.

What is a crime?

Most “crimes” are established by the legislature and codified in Chapter 609 of the Minnesota Statutes. A “crime” is a violation of a law, generally an ordinance or a statute, which carries the possibility of jail as a penalty.

In Minnesota, there are four offense levels: petty misdemeanor, misdemeanor, gross misdemeanor, and felony. Only offenses charged as a misdemeanor, gross misdemeanor, or felony are crimes. A petty misdemeanor does not carry the possibility of jail time so it is not considered a crime.

What is a misdemeanor?

Misdemeanor: A misdemeanor carries a maximum penalty of 90 days in jail and/or a $1,000 fine. Typical misdemeanor crimes include minor thefts, disorderly conduct, 5th degree domestic abuse, low-level assaults, first time DWI offenses (if your BAC does not exceed .16), and some traffic offenses, including reckless or careless driving. Probation is determined by the court and may extend up to two years.

What is a gross misdemeanor?

Gross Misdemeanor: A gross misdemeanor carries a maximum penalty of up to a year in jail and/or a $3,000 fine. Typical gross misdemeanor crimes include repeat offenders for DWI offenses or DWI offenses where your BAC is greater than .16, thefts, assaulting a police officer, resisting arrest, and 5th Degree criminal sexual conduct. Probation is determined by the court and may extend up to six years.

What is a felony?

Felony: A felony is serious crime that carries a minimum penalty of more than a year in jail and/or fines established by statute (usually thousands of dollars. Typical felony offenses include murder, burglary, robbery, serious assaults, repeat domestic assaults, drug offenses, fleeing a police officer, and most criminal sexual conduct crimes.

Will the arresting officer or officers come to court?

The police officer is a member of the prosecution’s team. There may be hearings held where the officer is required to be present. If your case proceeds to trial, the arresting officer is also likely to be called as a witness.

When will witnesses appear in court?

Witnesses may be brought either by the prosecution or in your defense. If you have a witness who refuses to come to act, your attorney can subpoena the witness to testify.

Your attorney is responsible for gauging the proper time to introduce your witnesses in court. Witnesses usually first appear during your trial, and they may also appear at the sentencing.

Why do I keep seeing different attorneys and judges?

It is important that you be comfortable with your attorney. Sometimes prosecuting attorneys may work in teams as well. There are also several reasons why you might appear before different judges.

Mostly, you will see different judges early on in the process because of judicial scheduling. You may request that a judge be removed from your case or a judge might remove or recuse himself/herself from the case he/she has an interest in it that would prevent him from acting impartially.

Do I have to talk to the judge or jury?

It depends. When you are entering a plea or if you are accepting a plea bargain, you must answer the judge’s basic questions with regard to your understanding of these actions and to provide a factual basis for the court to accept your guilty plea.

However, you have a Constitutional right to remain silent with respect to the facts of the case. Only you and your attorney have the power to put you on the witness stand. It is one of the most important decisions in any criminal trial. Defense attorneys agree that it is often better to keep the defendant off the witness stand. Once you testify, you may be cross-examined by the prosecution. Because of your Constitutional right, in the event that you decide not to testify, the judge will instruct the jury that your failure to testify must not be considered in any way a sign of guilt.

Why should I plead guilty?

Sometimes the best you can hope for is a guilty plea. You may plead to a lesser charge and therefore avoid a stiffer penalty at the end of a long, arduous trial. Since trials also cost the state money, most judges will offer a lighter sentence in exchange for a guilty plea at the arraignment.

Will people know I have a conviction on my record?

A conviction is public record and may be reviewed by anyone. However, depending on the nature of your crime and the laws of your state, your conviction may later be sealed by the process of expungement.

What type of sentence may I expect to receive?

Sentencing is based on the nature of the case, your past history, and your threat to the community. Sentencing options include jail time, probation, fines, community service, psychiatric treatment, or imprisonment in a penitentiary.

What happens if I violate my probation or parole?

If you violate your probation or parole, you will be required to appear for a hearing in which the judge may impose jail time, a fine, revoke your release, order you to perform community service or other “punishments.”

How will my case proceed?

The court process for misdemeanors, gross misdemeanors, and felonies is generally the same. In some cases, your attorney may be able to file an acknowledgment of rights form to avoid the initial appearance for petty misdemeanor and misdemeanor crimes. Usually, your case will include the following:

Arraignment/First Appearance: As the name implies, this is generally the first time you see a judge. The judge will review the charges against you, establish the conditions of your release and bail, if any, ask you to provide your name and address, and provide you with notice of your next court date.

Pretrial/Omnibus Hearing: This period of your case is fluid and may consist of more than one hearing. This is the stage where your attorney explores the State’s evidence against you, and if he/she feels there is a constitutional basis to challenge the evidence or the manner in which the evidence was obtained, he/she will file a motion on your behalf. This is also the stage where your attorney, after reviewing the State’s evidence will begin settlement, or plea, discussions with the prosecuting attorney. Many cases are settled at the pretrial/omnibus hearing stage.

Trial: If you are charged with a misdemeanor or gross misdemeanor crime, you have a constitutional right to a 6-person jury trial or a court trial. If you are charged with a felony crime, you have a constitutional right to a 12-person jury or court trial. In a court trial, the judge is the only person deciding your case. The defendant is allowed the choice of a jury or court trial. There are advantages to both jury and court trials that should be discussed with your attorney.

Many crimes carry additional or “collateral” penalties that non-lawyers may not understand. Therefore, it is very important that you hire an attorney with whom you are comfortable. Your choice of attorney can have a significant impact on the outcome of your case.

Please contact one of our criminal defense attorneys to schedule a consultation to discuss your case.