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Experienced Miami Defense Attorney Answers Frequently Asked Questions About Criminal Law

Below are answers to some of the questions most frequently encountered at the Tony Moss Firm, L.L.C. as we advise and represent clients in Miami, Fort Lauderdale and throughout Florida in state and federal criminal defense matters. We hope this information is helpful to you. If you have other questions, or if you need immediate assistance with criminal charges, please contact the Tony Moss Firm for a free consultation.

If I refuse to answer questions put to me by the police, won’t that make me look guilty?

Well, more than likely, they already think you’re guilty. Why give them the chance to trick you into confirming it?

It’s a common tactic when the police want to question someone: they’ll tell you that if you are innocent, you have nothing to worry about. You may in fact feel that you have nothing to hide, so why not cooperate?

The fact is that the police already suspect you are guilty of a crime, or they would not be talking to you in the first place. Their goal in questioning you is not to “clear things up” so they can rule you out as a suspect; it is to get you to say something incriminating, false or contradictory that they can use against you. Law enforcement officers, from Florida police officers and sheriff’s deputies, to federal agents, are trained experts in this process. It’s a big piece of what they do for a living.

Here’s a tip. If a police officer “invites” you to come to the station to talk, they may as well be putting up a billboard across the street saying, “[NAME], WE’RE COMING AFTER YOU.” Why?

Because the cops control the environment at the station. That’s where they do their dirty work. They will physically and psychologically isolate you as much as possible. (There’s a reason a police interview room never has windows.) They will dismiss anything you say that does not fit their narrative. They will tell you with a straight face that they already know what happened, and what you did wrong, and all they want from you is an explanation. They will try to convince you that cooperating will be in your best interest, because the alternative is so much worse. If you hold firm, they may “tag-team” you by subjecting you to questioning from rotating officers (or even teams of officers) over extended periods of time. They will not allow you to contact anyone on the outside–although, if you now tell them you want to talk to a lawyer, they’re required to stop questioning immediately. (Needless to say, that does not always happen. And in any event, by the time you do speak up, the damage may already be done.) Then, once they’ve gotten the confession they want–recorded, naturally–they can whisk you straight to jail. That’s when then the nightmare really begins.

And by the way, when we say “trick you” into pointing the finger at yourself, we mean that literally. Surprisingly, the cops are allowed to lie during questioning–for example, by claiming that your fingerprints showed up at a crime scene, or that a witness, maybe someone you know, has already implicated you, when nothing of the sort has ever taken place. (Of course, obtaining a confession by physical or mental coercion or force is strictly prohibited.Proving that such coercion happened in a given case is another story.)

If you still don’t believe that an innocent person would ever confess to a crime he or she didn’t commit, consider this: as of September 2020, according to the Innocence Project (www.innocenceproject.org), out of 375 cases in which convicted inmates were later cleared by DNA analysis, 29% (roughly 110) involved false confessions. Out of those 375 defendants, 44 pled guilty to crimes they did not commit. Numerous studies have proven that police-induced false confessions have long been a major source of wrongful convictions, especially in more serious cases such as capital homicides and sexual offenses. Bottom line: you should never assume that it can’t happen to you.

Now if a cop offers to meet with you at your home, workplace, or other neutral location, it’s more likely that they’re just seeking information, either to rule you out as a suspect or to help the investigation in some other way. But you still want to have an attorney on board first. The attorney can reach out to law enforcement on your behalf, confirm why they want to speak to you, and then advise you accordingly.

Don’t worry about how refusing to answer questions might make you look; it makes you look smart. You have the right to remain silent. USE IT!! When the police want to ask you questions, be polite but firm, and exercise your constitutional right to talk to your attorney before you answer any questions. Then call the Tony Moss Firm, L.L.C. for assistance, at 877.547.9407.

Are the police allowed to search me without a warrant? Can they search my home or car without a warrant?

In general, the Constitution requires a warrant before the police can search you or your property. There are, however, myriad exceptions to the warrant requirement. There are more exceptions allowing a search of a car than a home, but even a home search can be conducted without a warrant in some circumstances. And in some instances, the police can conduct a quick search of your person (a pat-down or stop-and-frisk) even without probable cause to believe you have committed any crime.

Search and seizure laws can be highly technical and complex. You don’t need to become an expert on police searches; that is your attorney’s job. What you need to know is this: if the police tell you they are going to conduct a search, you should not resist or interfere. If the search turns out to be improper, your lawyer can have any evidence suppressed and may even be able to have any charges against you dismissed.

Finally, it is vitally important to distinguish whether the police are telling you they are going to do a search without your consent, or are asking your permission to search. Even without a warrant or probable cause, the police can always search you or your property if you give them permission to do so. In fact, the police will often ask for your consent to search during any routine stop, just to see what might turn up. You always have the right to refuse your consent to search and should always exercise this right. Even if you have nothing to hide, there is no telling what the police might find and what significance they may attach to it. Don’t help the police build their case against you.

If I am arrested, will I be able to post a bond?

That depends on a number of factors, starting with the degree of crime charged. For misdemeanors, it is not uncommon for defendants to be released “on their own recognizance,” which is basically a promise to appear for all court hearings as scheduled. Or a defendant may be eligible for  release upon entering a pre-trial services program affiliated with the court, which will monitor the client’s conduct while pending trial.

In felony cases, particularly non-violent ones, supervision by pre-trial services is also an option. Or a monetary bond, house arrest with GPS monitoring, or other choices may be available. Generally speaking, unless a client is charged with a capital felony, or any felony punishable by up to life in prison, he or she has an automatic right to bond. Many counties have bond schedules setting out specific amounts for specific charges.

For charges punishable by up to life in prison, or capital felonies, there is no automatic right to a bond. Instead, the court holds what is known in Florida as an Arthur hearing, at which the state presents the evidence that, in its opinion, will justify holding the defendant without bond. The defense gets to challenge that evidence, and is free to put on evidence of its own. Even if the court agrees that the evidence justifies continued detention, the defense still can put on evidence to support release on reasonable terms.

In such cases, or when a client has a bond amount that cannot be met for financial reasons, the court must consider a variety of factors. Among them are: the nature and degree of the pending charges; the existence of any other open cases; the client’s prior criminal record, if any; the client’s ties to the community (family, employment, ownership of property, or the like); the source of the funds to be used to post bond; the likelihood that the client will pose a danger to the community or become a flight risk if released; and so on.

For clients who are already on probation, house arrest (community control), or any other form of court supervision, and who are arrested on new charges, there is no right to bond at all, no matter what the new charges may be. One may certainly file a motion for a bond hearing in such cases. But because the standard of proof in probation violation cases is so low, such motions are seldom if ever granted.

What is an arraignment, and what happens in court afterward?

An arraignment is simply a hearing at which the prosecuting agency announces whether or not it is filing formal charges against you. It is normally the second court proceeding in a criminal case, after the first appearance, where the initial charges are announced and your bond status is addressed. In misdemeanor cases, the arraignment and first appearance may take place simultaneously. In felony matters, the arraignment usually takes place 21 days after the first appearance, although the State may request an extension of time to make a decision.

Normally one of three things will happen. The state may announce that it is taking no action, in which case the charges are dropped and you’re free to go. In a felony case, the state may announce that it is reducing the charges to a misdemeanor and referring the case to a lower court for disposition. This is commonly called a bind-down. Or they may announce that they are filing a felony information, which is a document setting forth the crimes they feel they can prove against you beyond a reasonable doubt, the dates and places of the offenses, any identifiable victims, and so on. If the case is a first-degree murder, the charges are set forth in an indictment, which is issued by a grand jury.

Once the indictment or information is filed, the defendant then enters a plea of “not guilty,” demands a trial by jury, and demands discovery (any and all documents, witnesses, statements, and other evidence in the case). The attorney may make other motions as needed, and the case is usually reset for a status report (also called calendar call, sounding, and other such descriptions). These hearings are held periodically to update the court on the readiness of the parties for trial, and to raise any issues that need to be addressed in the short term, and for long-term scheduling purposes.

When should I accept a plea agreement and when should I go to trial?

This is an important question that you should discuss with your attorney. The answer depends upon a number of factors, including the strength of the prosecutor’s case, the strength of your defenses, and the consequences you face if convicted. Your lawyer should discuss the risks and benefits of negotiating a plea or going to trial in your particular case. Ultimately, that decision is yours to make, although your attorney should advise you on your options. Tony Moss has over 30 years of criminal trial experience and has successfully represented hundreds of clients in plea agreements and trials.

Should I take the stand at trial and testify on my own behalf?

This is another question to discuss with your lawyer, because the answer depends on your own unique situation. You have a constitutional right not to testify if you don’t want to, and neither the prosecutor nor the judge can make you. On the other hand, testifying on your own behalf can make a powerful positive impact on the jury. Yet it can also open you up to intense cross-examination from the prosecution that could hurt your case.

Although for the most part trial strategy should be left in the hands of your lawyer, the decision whether to testify is up to you. The Tony Moss Firm believes in including the client as a valuable, contributing member of the defense team. As our client, you will be informed of your options and the pros and cons of testifying so that you can make the decision that is best for you in your own unique circumstances.

If I decide to enter a plea of guilty or no contest, should I ask for probation?

Only if you’re reasonably sure you can go for every day of every year the judge imposes, without so much as picking up as a parking ticket.

You have to remember: probation is an alternative to county jail or state prison time. It is a privilege, not a right. While the state, as part of a plea bargain in a given case, may be amenable to probation, they are not legally required to offer it. Nor is the judge required to impose it.

The terms of probation are usually quite stringent.  You will be expected to report to a probation officer on a regular basis, in person or by phone. Your officer is entitled to pop up at your home or workplace without notice. If it’s your home, your officer will have the right to search it without a warrant. If you are not a student, you will be expected to either maintain employment or seek it; and you’ll be asked to keep a log of your efforts. You may be subject to random drug testing, especially if the crime was in some way drug-related. You’ll have to request permission to travel outside the jurisdiction. And you will not be legally permitted to own or possess any kind of firearm, for any reason whatsoever.

While a parking ticket is not a cause for violation, any kind of arrest is–even for misdemeanors, or for traffic offenses such as driving without a license, or with a suspended one. This is commonly called a “new law violation,” and they are treated more seriously than “technical violations” such as failure to report, testing positive for illicit narcotics, failure to pay costs of supervision, and the like. Possession of a firearm by a probationer will likely result in new criminal charges, and thus is considered to be a new law violation.

If you have to go to a probation violation hearing, you do not have the protections you would have in a jury trial. The judge alone makes the decision; there is no jury. The standard of proof is not “beyond a reasonable doubt,” as in a trial, but a “preponderance of the evidence,” which means any bit of evidence that’s enough to tip the scales one way or another. Hearsay evidence is admissible, as long as the client has the chance to refute it. And if the judge decides that your conduct was in violation, he or she may legally sentence you up to the maximum provided by law–even if you’re a first-time offender. That may not be likely, but it can happen.

So if you’re considering probation, you and your attorney need to have a serious discussion of the pros and cons of your particular case. You need an attorney who’s experienced in handling these matters–the potential consequences can be quite severe. If this is your situation, call The Tony Moss Firm, L.L.C., at 877.547.9407, or email him at tony@tonymosslaw.com, for a free consultation today.

 

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