Criminal Justice System - Miranda Rights - Marrero Bozorgi - Legal Resources

Understanding the Criminal Justice System

Investigations
Subpoena
Detention/Searches
Miranda Rights
Arrests
Bonds
Arraignment
Court Appearance/Reports/Soundings
Plea Negotiations
Trial
Sentencing Guidelines
Appeals
Seal and Expunge

Understanding the Criminal Justice System

Investigations

The Investigation phase is prior to criminal charges being filed. This is when law enforcement and/or the prosecuting body determine whether or not to charge an individual or corporation criminally. It is also the time when law enforcement is actively collecting evidence for a criminal prosecution. Law enforcement can and do approach targets of criminal investigations prior to making an arrest. During the investigation a person or corporation that is either the subject or target of that investigation has the right to an attorney. A witness also has the right to seek legal advice and be represented by an attorney. No one can ever be forced to speak with a law enforcement agency or agent when they or someone else is the subject of an investigation. The fact that someone consulted with a lawyer during an investigation can never be used against that person.

Subpoena

A subpoena is a document which compels an individual or corporation to comply with requests for testimony or document from law enforcement agencies or prosecuting agencies. Whenever an individual or corporation receives a subpoena to appear for questioning or produce certain documents, it is important to seek advice of competent counsel. There are certain specific legal rights that may attach when an individual is subpoenaed. The individual or corporation may have certain legal challenges to the subpoena. An individual or corporation that receives a subpoena has the right to be represented by counsel.

Detention/Searches

A law enforcement officer can stop and detain an individual for a temporary period of time only when there is Reasonable Suspicion to believe that a crime is being committed. Probable Cause is required before a law enforcement officer can search a person, house or car. A Search Warrant is an order signed by a Judge permitting a search. An individual can consent to a search when there is no probable cause or search warrant, although no one can be forced or threatened to consent to a search. A person that is the subject of a search has the right to seek legal advice prior to consenting to any search of his or her person, house or car.

Miranda Rights

When a police officer questions an individual that is in police custody they must read that person their Miranda Rights.They are as follows:

You have the right to remain silent
Anything you say may be used against you in a court of law
You have the right to have an attorney present while you are being questioned
If you cannot afford an attorney, one can be appointed for you at no cost

When a law enforcement officer arrests someone but does not ask them any questions they are not required to read them their "Rights." But if a law enforcement officer questions a person in custody beyond general information such as name and address, they are required to read "Miranda Rights" to that person. Failure to do so may be grounds to ask the Court to suppress any statements made. If an individual waives his or her Miranda Rights and continues to speak with law enforcement, all these statements can be used against them in any criminal proceeding. A person has a constitutional right to refuse to talk with law enforcement officers and to seek advice of counsel. The fact that a person would not waive their Miranda Rights and requests an attorney during a police questioning can NEVER be used against them in any Court proceeding. Miranda warnings are not required whenever anyone makes a voluntary or spontaneous statement to a law enforcement officer.

Arrests

Probable Cause is required for a law enforcement officer to arrest an individual for a crime. An Arrest Warrant is an order signed by a Judge ordering the arrest of an individual. An arrest is not a formal charge. A prosecuting agency such as the State Attorney's Office or United States Attorney Office through a Grand Jury decides whether formal charges are brought against an individual or corporation.

Bonds

When an individual is arrested they may be released on bond if their charge is bondable. A bond is a monetary security filed with the Court to secure the appearance of the charged defendant in Court. A bond can be posted through a bondsperson or a cash bond can be posted directly with the Clerk of the Court. A bondsperson will usually charge a fee to post the entire bond, and requires collateral to secure the bond. When a family member or friend posts a cash bond with the Clerk it is returnable in full at the end of the case. The fee charged when using a bondsperson is usually not returnable.

State Bonds

Bondable Offense: Bondable Offense: Most criminal charges are bondable. Most state jails set a standard bond upon a person being booked. Within 24 hours of the person being arrested they will be brought before a first appearance judge for a bond hearing. At this hearing an attorney can ask for the bond to be reduced or for the Court to order a non-monetary bond if appropriate.

Non bondable Offenses: There are a handful of criminal charges which are non-bondable by statute. This means that a person is not entitled to a bond if there is probable cause for the charge. After being arrested on a non-bondable offense, the first appearance judge determines whether there is probable cause for the arrest and continued detention. If there is a determination of probable cause, a bond can still be set by either agreement with the State Attorney or through a hearing which addresses the strength of the State's case and the defendant's ties to the community. In Florida this hearing is called an Arthur Hearing. Examples of Non-bondable offenses in Florida include but are not limited to: Murder; Armed Robbery; Armed Burglary; Burglary with Assault and Battery; Armed Kidnapping; and Sexual Battery on a Minor.

Federal Bonds

When a person is arrested in Federal Court they will be brought before a Federal Magistrate for a first appearance hearing within 24 hours. At this hearing the Government will inform the Magistrate if they are seeking Pre Trial Detention (PTD). If the Government is seeking PTD then the case will be reset for a Pre-Trial Detention Hearing (PTD Hearing). The PTD Hearing is usually set within three to five days after the initial appearance hearing. If the Government doesn't request PTD then a bond is immediately set by the Magistrate. The Court hears argument from both the Government and defense attorney relating to an appropriate bond type and amount. The types of bonds in Federal Court include a Personal Surety Bond (where the Court asks the defendant and/or family and friends to sign a personal guaranty for a specific monetary amount to secure the defendants presence in Court); a Ten Percent Bond (where the defendant is required to place 10% of the monetary bond amount with the Clerk of the Court to be returned at the conclusion of the case); or a Corporate Surety Bond (where the defendant has to use the services of a bondsperson to post the bond); or any combination of the three. After the PTD Hearing, if the Court finds that the defendant is not subject to Pre Trial Detention then the Court will set bond.

Arraignment

An Arraignment is a hearing when an arrested individual is informed of the formal charges against him or her. If the State does not bring formal charges then the case is often dismissed. Charges can be either formally brought by Information (which is a document filed by the prosecuting body informing the defendant of the charges) or by Indictment (which is a document filed by the Grand Jury informing the defendant of the criminal charges). At the Arraignment, the Defendant is given an opportunity to enter a plea to the charges. A defendant can either enter a plea of not guilty, guilty, or no contest to the charging document. It is important to have legal representation for this process. If you cannot afford an attorney, the Court can appoint a lawyer after a financial inquiry.

Court Appearances/Reports/Soundings

A defendant is usually required to be present for all court hearings. If a charged defendant failed to appear for any Court hearing then an arrest warrant can be issued for failure to appear. Under certain unique circumstances an attorney can represent a criminal defendant in their absence. Contact an attorney to learn of the circumstances when this is allowed. Many judges set report or soundings so they can be updated on the status of the case by the defense and prosecution. A defendant must be present for all hearings unless specifically excused by the Judge. Always seek advice from an attorney before failing to appear for a scheduled Court hearing.

Plea Negotiations

A plea negotiation is an offer by a prosecutor or the Court to plead guilty or no contest instead of proceeding forward with a trial. This can either be a plea to a specific agreed sentence or reduced punishment. Alternatively, a person can plead to an agreed charge, with a Judge determining the sentence after a sentencing hearing.

Trial

A criminal trial is a formal proceeding where the State or Government introduces evidence and testimony before a Judge or Jury to prove their case. The Prosecutor has the burden of proof. A criminal defendant has no burden to prove anything. The State or Government has to prove their case beyond and to the exclusion of every reasonable doubt. A jury trial begins with both sides participating in picking the jury. This process is called Voir Dire. After the jury is chosen, both sides are provided with an opportunity to make an opening statement before the jury. The prosecuting agency can introduce evidence and call witnesses. After the State or Government directs their witnesses, a defendant's attorney can cross examine them. Additionally the Defendant has the right to introduce evidence, call witnesses, and take the stand in his or her own defense if they so choose. At the end of the trial both sides have an opportunity to make a Closing Argument to the Jury. After closings, the jury is read instructions of the law. A jury can return a verdict of Guilty, Not Guilty, or if they cannot agree unanimously the Court will enter a hung jury verdict. When facing a criminal trial it is important to be represented by a competent lawyer who has extensive trial experience.

Sentencing Guidelines

Sentencing guidelines in both State and Federal Court dictate the types and lengths of sentences based on the criminal offense and a number of other related factors. Factors included in a calculation of a guideline sentence would include but not be limited to prior record, victim injury, quantity of drugs, and amount of monetary losses. There are many factors which effect the calculations of where a particular offense falls within the guideline range. The Federal Sentencing Guidelines is a complex set of laws that control federal sentencing. It is crucial to seek advice of a competent counsel that has experience with the Federal Sentencing Guidelines.

Appeals

An appeal is the process by which a criminal defendant asks a higher court to review a ruling by a lower court or a finding of guilt by a jury. An appeal usually involves filing a legal brief to a higher court asking them to review the rulings of the trial court or jury. In the event that an individual is convicted or believes that a Court has erroneously ruled against them they may be entitled to appeal the decision to a higher court. There are often time constraints to when an individual can appeal. It is important to seek immediate advice from a competent appellate attorney when considering appealing.

Seal and Expunge

A criminal record may possibly be sealed or expunged. A record which is sealed is not open to the public. A record which is expunged is destroyed. There are certain sentences which can never be sealed or expunged. Consult with an attorney to determine whether or not a criminal record is eligible to be either sealed or expunged.

Useful Links

U.S. Courts
www.uscourts.gov

U.S. District Court, Southern District of Florida
www.flsd.uscourts.gov

U.S. District Court, Middle District of Florida
www.flmd.uscourts.gov

U.S. District Court, Eastern District of New York
www.nyed.uscourts.gov

Florida State Courts
www.flcourts.org

11th Judicial Circuit of Florida
www.jud11.flcourts.org

Florida Supreme Court
www.floridasupremecourt.org

Miami-Dade County Clerk of Courts
www.miami-dadeclerk.com

Broward County Clerk of Courts
www.clerk-17th-flcourt.org

New York State Unified Court System
www.courts.state.ny.us

Florida Department of State, Division of Corporations
www.sunbiz.org

Miami-Dade County Corrections
www.miamidade.gov/corrections

Federal Bureau of Prisons
www.bop.gov

City of Miami
www.miamigov.com

Greater Miami Convention and Visitors Bureau
www.miamiandbeaches.com