1. What if I cannot afford to pay for a lawyer?
2. Why should I pay for a criminal defense lawyer if the law entitles me to be represented for free?
3. What is an "arraignment"?
4. Do I need a lawyer at my arraignment?
5. How do private attorneys set their fees?
6. Can I change lawyers if I am not satisfied with the representation provided to me?
7. What is a preliminary hearing (felony cases only)?
8. What's the difference between a felony and a misdemeanor?
9. What do people mean by "innocent until proven guilty"?
10. Is the standard of proof in a criminal case the same as in a civil case?
11. What is bail?
12. How much bail do I have to pay?
13. How do I pay bail?
14. Are there any alternatives to paying bail?

What if I cannot afford to pay for a lawyer?

According to the United States Constitution, you are entitled to effective legal representation by competent counsel (i.e., an "attorney" or "lawyer") whenever the state initiates a criminal action against you that could result in the deprivation of your liberty. Thus, depending on your financial ability to pay, the court may have to assign you an attorney — called the "public defender" — who would represent you for free (although the state reserves the right to recoup all or part of the expense of the public defender's services from you if it determines that such reimbursement would be reasonable in light of your income status). Public defenders are licensed by the State Bar to practice law, and spend all of their time representing criminal defendants who cannot afford their own attorneys.

Why should I pay for a criminal defense lawyer if the law entitles me to be represented for free?

You are entitled to be represented by a state-appointed lawyer only if you cannot afford to hire one yourself. This means that when requesting a public defender, you are required to fill out an application declaring your financial means in order to qualify for the public defender's services. If you do qualify, the state still reserves the right to recoup all or part of the expense of the public defender's services from you if it determines that such reimbursement would be reasonable in light of your income status by the end of your criminal case. Still, many people of modest income qualify for the public defender without a problem. This fact should not, however, end your inquiry as to whether or not to hire your own personal attorney. Hiring your own personal legal professional to represent you puts you in contact with your lawyer immediately; you would be able to ensure that your lawyer remained on your case until its resolution; and you would have the opportunity to assess your lawyer's credentials prior to your case being fought in court (even after your initial court appearance, the public defender handling your case is likely to change several times, so that you would be unable to assess the skills of the public defender who would actually be taking your case to trial). In addition, the your public defender likely would be handling hundreds of cases similar to or even more serious than your own, making it highly improbable that he or she would give your case the quality of service, attention, skill and aggressiveness that you should want for yourself. Your case is the most important thing in the world to YOU, and your lawyer's attitude towards your case should be no different. You probably have spent more time reviewing this FAQ than the total amount of time you will ever talk to your public defender, and you would almost never be able to discuss your case with your public defender by telephone or out of court. Hiring private attorneys like Kopple & Wolf, on the other hand, puts you in touch with us at the dial of a number, 24 hours a day, 7 days a week.

What is an "arraignment"?

An arraignment is a court hearing at which an individual accused of a public offense--an infraction, misdemeanor, or felony--is informed of the nature of the charge or charges, given a copy of the accusatory pleading, and given an opportunity to enter a plea. It is the defendant's first court appearance. In addition to fulfilling these statutory requirements, the judge or magistrate conducting the arraignment is also required to advise each unrepresented defendant of the right to counsel and the right to have appointed counsel if indigent. In counties using mass advisements, the initial advisement of rights also includes other trial rights. If the defendant is charged with a bailable offense, the court must also set bail at the first court appearance, unless bail has already been set. When the arraignment takes place depends on a number of factors, the most important of which is the defendant's custodial status. If the defendant is in custody, arraignment must take place no later than 48 hours (not including weekends and court holidays) after the arrest. If the defendant was arrested without a warrant, and has not yet been released, the arraignment is usually combined with a probable cause determination. This determination must be made by a magistrate as soon as reasonably feasible but no later than 48 hours after arrest; weekends and holidays may not be excluded from the 48 hours. If the case is not disposed of at the arraignment, the court will also set the date for the next hearing.

Do I need a lawyer at my arraignment?

If you are able to arrange for private representation before your arraignment, it's always better to have a lawyer appear on your behalf. If your matter is a felony, having a private lawyer appear with you means your case probably will be heard within 30 minutes from the time the judge takes the bench, minimizing the time you must expend at the courthouse to less than an hour or so. Without a private attorney, you could spend the entire morning, and even the entire afternoon (if your case is not called before the lunch hour) waiting for your case to be called. If your matter is a misdemeanor, your private attorney can appear at your arraignment on your behalf without you having to go to court at all. Furthermore, your private attorney can make custody/bail related motions at the arraignment, serve constitutionally and statutorily sanctioned discovery demands, and set dates for any motion hearings related to your case (such as motions to exclude confessions, evidence obtained through illegal search and seizure, etc.) Finally, your private attorney can obtain valuable information about the prosecutor and judge that will be handling part or all of your case, allowing for the opportunity to fine-tune your defense strategy accordingly.

How do private attorneys set their fees?

The principal factors that go into the fee-setting formula include the seriousness of the case and possible penalties (i.e., felonies versus misdemeanors, violent offenses versus non-violent offenses, sale of drugs versus possession of drugs, etc.), the complexity of a case (i.e., the number of witnesses, breadth of the scene and duration of the crime, number of charges, intricacy of the charges, etc.), and geography (i.e., number of miles that must be traveled to the courthouse, to the scene of the crime, for witness interviews and other investigation, etc.) Most criminal defense attorneys require all or a substantial portion of the fees paid up front. Contingency fees (arrangements where the lawyer gets paid only if he wins the case), are not allowed in criminal cases.

Can I change lawyers if I am not satisfied with the representation provided to me?

If you go with the public defender or government-appointed lawyer, courts almost never grant requests to change the person assigned to represent you. To obtain such a grant, you probably would need to demonstrate that your public defender was somehow ineffectual or failed to render you a competent defense. You could terminate your private attorney, on the other hand, at any time and for any reason without the court's permission. After doing so, you can hire a different lawyer or represent yourself. This does not mean, however, that you would be entitled to a full or partial refund from your former attorney. You would need to consult the specific provisions in your retainer agreement governing termination of the representation and the designation of certain fees as being refundable, in order to determine how much of your fees could be recouped. There are some circumstances, however, under which a judge might refuse to allow you to change attorneys. This might happen, for example, if changing defense attorneys would delay your trial in a manner that would unfairly hurt the prosecutor's ability to prove the charges (such as when witnesses would become unavailable), or if the judge believed that you intentionally timed your decision to change attorneys so as to impede the prosecution of your case.

What is a preliminary hearing (felony cases only)?

The prosecution begins a felony case either by filing a grand jury indictment in the trial court or by filing a complaint with a magistrate. If a complaint is filed, a preliminary hearing (also called preliminary examination, "PX," and "prelim") must be held before a magistrate to ensure that there is enough evidence to hold the defendant to answer in the trial court. When an indictment is filed there is no right to a preliminary hearing. At the preliminary hearing, the prosecution must present sufficient evidence to convince the magistrate that probable cause exists to believe that a crime has been committed and that the defendant committed it. If the prosecution shows probable cause, the magistrate will hold the defendant to answer to the charge in the trial court. The prosecution must then file an information in that court within 15 calendar days. Once the magistrate makes a holding order, the magistrate's power ceases and jurisdiction is vested in the trial court to deal with the charges in the case. The preliminary hearing transcript, like a civil deposition transcript, can provide a basis for later impeaching a witness at trial if the witness testifies inconsistently and may even be used as a substitute for testimony at trial if the witness is unavailable. The defense may ask the magistrate to make factual findings based on a determination of the credibility of the witnesses that may result in a discharge of some or all of the charges. The evidence presented at the preliminary hearing may support a defense request for lower bail. When the felony charged in the complaint provides a misdemeanor sentencing alternative (called a "wobbler"), the magistrate may reduce the charge to a misdemeanor.

The vast majority of cases that proceed to preliminary hearing result in holding orders (commitments) to the trial court.

What's the difference between a felony and a misdemeanor?

Crimes are broken into two major categories: felonies and misdemeanors. A felony is generally any crime for which the maximum punishment can include incarceration for more than a year. If the maximum possible punishment is only a year or less (in jail, for example), then the crime is a misdemeanor, unless it is punishable only by a fine (with no jail time), in which case it is merely an infraction (such as traffic tickets, which are not really considered crimes at all). Sometimes the state punishes behavior by a fine only, but still labels the crime as a misdemeanor (i.e., possession of less than an ounce of marijuana to be personally used). Crimes that can be charged as either a misdemeanor or a felony (at the prosecutor's discretion) are called "wobblers." When a wobbler is charged, one of your defense attorney's primary objectives will be to have the crime charged or reduced to a misdemeanor.

What do people mean by "innocent until proven guilty"?

The law regards all persons as innocent unless and until the prosecutor brings sufficient evidence to prove his or her case beyond a reasonable doubt. This means that a criminal defendant does not need to present any type of defense, or to speak in his or her defense in order to avoid a conviction. If the prosecutor fails to bring sufficient evidence to convince a jury of guilt, than the defendant is acquitted and freed. The reason for this system is that as a society we put tremendous value on not depriving innocent people of their freedom — more so than we value putting guilty people behind bars. Thus, when there is sufficient ambiguity or doubt about whether or not someone should be punished, we prefer to err on the side of acquittal.

Is the standard of proof in a criminal case the same as in a civil case?

Most definitely not. The standard of proof in a criminal case is much higher (i.e., more difficult to meet) than in a civil case. The criminal jury must be convinced of guilt "beyond a reasonable" doubt in order to convict. This may be though of as somewhere in the 90% range of probability. In contrast, civil plaintiffs (such as in personal injury or employment discrimination cases) need prove their claims only by a "preponderance of the evidence" standard, which simply means "more likely than not" (or a hair over 50%). For this reason, much of your defense strategy will involve an effort by your attorney to "search for doubt," or to bring out as many weaknesses as possible from the state's evidence, or to present as much evidence as possible to cast doubt on the prosecutor's claim of guilt. The more "doubt" that can be shown, the easier it will be to argue to the jury that "the prosecutor has failed to prove his case beyond a reasonable doubt." All it takes is one juror to find a reasonable doubt to prevent a conviction.

When arrested, why should I choose to "remain silent" if I am innocent? If I didn't do it and can explain my actions, wouldn't the police believe me and let me go?

When there reasonable ambiguity, it is not the job of the police to determine whether or not you are guilty. That is the prosecutor's and the court's job. Thus, when police or any other member of law enforcement ask you for a statement, they are almost always are looking for you to admit to small details that will assist the prosecutor in proving his or her case (such as confirmation that you were at a particular place at a certain time, or that you did in fact have in your possession an article of stolen property, etc.), rather than for a reason to let you off the hook. Always remember that the best policy is to respectfully inform the officer that you prefer to remain silent, and that you wish to speak to an attorney before having any further discussions with law enforcement. When they tell you that "anything you say or do can and will be used against you in a court of law," they mean it! On the other hand, nothing you say or do that seems favorable to you can be used to assist in your defense at trial. This is because only the prosecutor can use your out-of-court statements at trial — you cannot. Anything you say that seems helpful to you will be considered inadmissible hearsay at trial, while anything hurtful to you will be considered an "admission" (which the court will allow a jury to hear and consider).

What is bail?

If you have been put in jail, the first thing on your mind will be getting out as soon as possible. Normally, this is done by posting "bail." Bail is an asset (such as cash) given to the court as a guarantee that the defendant will appear in court on the date ordered. If the defendant keeps his or her promise to appear, the returns the bail in full. If not, the court issue's a "bench warrant" for the defendant's arrest.

How much bail do I have to pay?

The amount of bail is set by the judge, unless the defendant wishes to forgo waiting to appear before a judge (up to five days) by paying the amount stated in a fixed bail schedule. The amount of bail is not meant to be (and should not be used as) a punishment against a defendant, no matter how serious the crime. It is meant simply to secure the defendant's appearance in court, and is set at a rate that the judge believes the defendant would be sufficiently interested in recouping by showing up in court on time. If the bail set cannot be afforded by the defendant, the defense attorney can file a bail reduction request with the court and argue for a reduction at a special hearing or at the arraignment.

How do I pay bail?

Bail can be paid, according to the local rules of the court, by cash, check, property of equivalent value, or a bond from a third party (called a bail bondsman) guaranteeing the full payment of the bail. Bail bonds are purchased from bail agents for a non-refundable fee (generally 10% of the bond amount). The bail agent also generally requires that some form of collateral (an interest in the defendant's valuable property) be put up to protect the amount of the bond in the event that the defendant fails to appear in court (causing the bail agent to lose the amount put up for bail).

Are there any alternatives to paying bail?

On occasion, the court releases the defendant (on its own or in response to a request at the first court appearance) on his or her "own recognizance" ("O.R."). This is simply a signed promise by the defendant to appear in court. A court is more likely to release a defendant on O.R. when the particular defendant is a low flight risk, such as when the defendant has family living in the community, when the defendant is employed there, has lived there for an extended period of time, has a minimal or temporally distant criminal record, or has a history of making court appearances in a timely fashion.

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