Criminal Defense Cases from A to Z

To someone unfamiliar with the legal process, understanding things such as record expungements and stets may seem as impossible as reading a foreign language. An attorney, well-versed in legal jargon and trained to use these terms to your advantage, can reduce uncertainty and simplify the process. Lose the headache and worry by reading these descriptions below and enlisting the help of an attorney.

• Will I have a criminal record? How do I get my record expunged?
• How do I appeal my criminal or traffic conviction from a District Court proceeding?
• What is bail? Do I need a bail bondsman?
• Are there other options for posting bail?
• What are the different types of verdicts?
• Nolle Prosequi
• Stet
• PBJ - Probation Before Judgment
• When are Miranda warnings required?

Will I have a criminal record? How do I get my record expunged?

Any time you are arrested--even if you are not charged--arrest records, such as those with the police department, State's Attorney Office or the Public Defender Office may exist. If you are arrested and charged, court records will be present regarding the charges filed against you from the case, even if you are found not guilty. Under certain conditions you can have all of these court records, including arrest reports, police investigation materials, court documents, State's Attorney records, Public Defender records and appeals, made unavailable to the public by filing for an expungement.

If your case is expunged, no public or private agency can use the records of your arrest and/or trial against you. If your case is not expunged, however--even if you are found not guilty in a criminal case-your records will be available to employers when they do a background check, to the State's Attorney when your next case comes up for trial, and to other credit agencies. Employers may be wary of hiring employees who have been arrested before even if they have been found not guilty. The State's Attorney, upon looking at your records and finding that you have been arrested in the past may be less likely to drop charges for a subsequent case if he feels you have already been given a break in the system before. Because of these possibilities, it is very important to keep your record as clean as possible and to expunge any paperwork in the criminal justice system from your record, if given the chance.

This process is called expungement. If your case is expunged, no public or private agency or individual can use the records from your arrest or trial against you. This means that when you go for a job interview and the employer runs a criminal background check he/she will not see any entries and if you appear in court for later trials, there will be no record that you have been arrested before. You can request an expungement if four circumstances apply. These include:

• You were arrested but no charges were filed. Records can be expunged in this case if you file for it immediately at the police headquarters.
• You are found not guilty after the charges are dismissed or the State's Attorney enters a nolle prosequi. An expungement may be filed in this circumstance if you file immediately after your trial date at the clerk's office and sign an agreement not to sue the parties involved or if you file after three years, the time it takes for the statute of limitations to run its course.
• You are given a probation before judgment, meaning you were found guilty but the Judge struck the finding of guilt and offered you probation before judgment to keep your record clean. In this instance you may file for an expungement three years from the date of your disposition, unless you were placed on probation. If you were placed on probation, you can file three years from the date your probation expires.
• If, however, you are given a stet, you can file to expunge the record three years from the date the State's Attorney gave you the stet. A stet is an indefinite postponement of your trial where the State Attorney doesn't want to go forward with the case, but also doesn't want to dismiss the case.
• You were granted a pardon by the Governor. Records can be expunged in this instance five years from the date the pardon was granted. The only time you file for a pardon is when you have actually received a conviction. Convictions cannot normally be expunged and normally remain on your records for the rest of your life, unless you have receive a pardon from the Governor. Pardons are extremely difficult to receive and involve a lengthy process that can take up to two years to be successful.

With many potential outcomes for your case, it is imperative to seek a lawyer's counsel to give you a better chance of avoiding a criminal conviction that will most likely remain on your record for the rest of your life.

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How do I appeal my criminal or traffic conviction from a District Court proceeding?

If you are unhappy with the District Court Judge's decision in either your traffic case or your criminal case, you have the right to appeal to the Circuit Court in the county where your District Court case was heard. Because the District Court is Maryland's lowest court, you have an automatic right to appeal any traffic or criminal case for an entirely new trial, called a denovo trial. At that trial the State will have the burden once again to prove the case against you, requiring it to recall all of its witnesses and re-convince the Judge beyond a reasonable doubt that you were guilty.

If there were multiple charges in the District Court and you were found not guilty on some of those charges, you can file an appeal and keep the not guilty verdict on those select charges. The only charges that will go forward on appeal, then, are any charges that you were found guilty of. Remember also that if you intend to file an appeal in the District Court, you must not accept any probation before judgment offers from the court. As part of the condition for probation before judgment involves striking a guilty finding and putting you on probation, the Defendant must agree not to file an appeal. That being said, if it is important to you to have an appeal and prove your innocence, then you must not accept any probation before judgment offers.

To appeal a District Court finding, a written appeal must be filed within thirty days of the initial trial with the District Court clerk. That thirty day time period cannot be extended; therefore, once the thirty day period has expired, your right to appeal is extinguished.

As part of your request for appeal, you must pay the Circuit Court court costs. When you are found guilty at the District Court level and intend to file an appeal, you should ask the Judge at that time to delay enforcement of any sentence. In a typical criminal or traffic case it is possible to receive fines, court costs, probation and sometimes jail time. Unless you ask the Judge to stay enforcement of the sentence pending appeal and the Judge agrees to do so, it may be necessary for you to pay the court fines, continue your probation and serve any jail time in the meantime before your appeal is heard. If the Judge agrees to stay any sentence pending appeal, it may not be necessary to pay the fine, serve probation or start serving your sentence in jail; however, the decision rests in the hands of your District Court Judge.

A lawyer can be extremely helpful in getting the Judge to stay some, if not all, of the sentences pending appeal. Sometimes a Judge will stay a sentence but will require the Defendant to post a bond to insure his attendance at the Circuit Court level trial.

When the case is on appeal, you must fulfill the terms and conditions of your probation unless the Judge has stayed your probation. If you are found guilty in the District Court and the Judge doesn't agree to stay your sentence pending appeal, you must serve your sentence while waiting for your new trial. Appeals can take as long as six months in the Circuit Court.

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What is bail? Do I need a bail bondsman?

Bail is money that a court may require to ensure you appear in court at your scheduled trial date. It is the hope of the court that by requiring the Defendant, a family member or a bail bondsman to post a certain amount of money, the Defendant will appear for trial. Bail can be posted by you, anyone over the age of eighteen or a bail bondsman.

A person posting bail for you assumes full responsibility for your appearance in court and if you fail to appear, the bond will be forfeited and a warrant will be issued for your arrest. The District Court now has procedures in place where a family member can post a percentage of the bond, rather than the entire amount.

If, however, the Defendant fails to appear, the family member will then have to pay the entire bond. Bail can also be posted by a bail bondsman, or an insurance company representative who will pay the court the entire amount of the bail if you fail to appear. The bail bondsman normally charges you a fee of 10 percent of the total amount of the bond to guarantee that bond. When family members and/or friends sign a bail bondsman agreement, they pay 10 percent of the bail amount to the bail bondsman, to pay the bail bond. If you fail to appear, then the entire bail amount is due.

For example, if your bail is $10,000.00, a typical bail bondsman may charge you ten percent or $1,000.00 to post a bond. A bail bondsman will require the family member or friend to sign an agreement that if you fail to appear, he/she will be responsible for the full bond. If you fail to appear, after a period of time the Court will require the bail bondsman's insurance company to pay that full amount of the bond, which in this case will be $10,000.00.

Then the family member or friend who has signed the agreement with the bail bonding agency will be responsible to repay the insurance company the full $10,000.00 that they had to pay because of your failure to appear. For this reason, family members or friends should seriously consider the responsibility of signing the bail bond agreement and should base their decision on sound assessment of the Defendant's responsibility and the likelihood that he/she will appear in court.

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Are there other options for posting bail?

A family member or friend has several options for posting the bond, aside from enlisting a bail bondsman's services. The first way is by posting cash for the full amount of the bond. If you do not want to give up your money, several other alternatives for posting bond are available. The first alternative is to post property, either land or a home. To post a piece of the property, the net equity of the property must meet or exceed the amount of the bail. To determine net equity the court will deduct any open mortgages or ground rent capitalized at 6 percent from the assessed value of the property.

To post your property it will be necessary for you to present a copy of the recorded deed, any tax bills or assessment notices, as well as information on any mortgage. Each person whose name appears on the tax bill must sign the court bail form unless there is a power of attorney executed by both parties. In lieu of posting property, the court will allow you to post tangible assets such as a bank book, certificate of deposit (accepted at 100 percent of the stated value) and certificates of stock (accepted at 75 percent of the present value). Bail may also be posted by credit or debit card, although a service fee will likely be added.

Inherent advantages and disadvantages arise from using a bail bondsman's service. When you are using a bail bondsman, for example, you are only required to come up with 10 percent of the amount of bail; however, that 10 percent is non-refundable. By extension, if the bail is $10,000.00 and the bail bondsman requires a fee of $1,000.00, which is the typical 10 percent fee, the person will be released from jail upon payment of the $1,000.00 fee to the bail bondsman and upon the bail bondsman posting the bail. The $1,000.00 charge will be lost forever as it is the fee of the bail bonding agency and a non-refundable cost of the service. Posting cash with the court for the full amount or posting your property, however, can result in a full refund if the Defendant has appeared for all of his court dates.

Obviously, if you, a relative or friend has the available cash or property and can be reasonably sure the Defendant will appear in court, it is better to post it than to obtain a bail bond. On the other hand, posting property can take several days, whereas a bail bondsman can get the Defendant released as soon as the bail is set. These considerations need to be factored in heavily when selecting the best option for posting the bond.

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What are the different types of verdicts?

The best resolution in a criminal or traffic case is a not guilty finding. A not guilty simply reflects the fact that the prosecution has failed to prove guilt beyond a reasonable doubt. There is no such finding as innocent.

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Nolle Prosequi

A nolle prosequi occurs when the State decides to dismiss all charges. Once a case is nolle prossed it is normally over, but in rare cases the State may want to recharge you in the future. Other than a not guilty finding, the next best thing is a nolle prosequi because it results in dismissal of the charges.

Stet

The next best case resolution is a stet. A stet means a suspension of the prosecution. If the State offers a stet, the case is indefinitely postponed and placed on an inactive docket where it will, with any luck, never to be called to trial. A stet may be reopened by any party for any reason including the State, the witnesses, the victim or the Defendant within the first year. After a period of one to three years and showing good cause to the court. After three years, a stet may not be reopened and, in fact, the criminal charges can be expunged. Stets are not normally reopened unless the Defendant has subsequent charges, a similar arrest, or fails to live up to the conditions set when the stet was originally granted.

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PBJ - Probation Before Judgment

The next best resolution is known as probation before judgment (PBJ). In a PBJ case the Defendant is typically found guilty, however, because of a good driving record or a relatively clean criminal record, he/she is offered PBJ. PBJ is considered a break given by the court to provide the Defendant an incentive to keep his/her record clean. The court usually strikes the guilty finding and places the Defendant on probation.

Barring unsuccessful completion of the probation period, the PBJ stands and the Defendant's guilty verdict is never entered. PBJs can eventually be expunged three years after the probation period runs out. If the Defendant receives a PBJ he/she can go on job interviews and honestly answer that he/she has not been convicted of a crime. Further, if the Defendant receives a PBJ in a traffic case, points will not be added against his/her driving record in the State of Maryland, because the traffic violation is not considered a conviction.

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When are Miranda warnings required?

When individuals initially seek an attorney's services they often state that the police officer did not read them their rights, therefore nullifying the arrest and the case. This, however, is not the meaning of Miranda warnings. Miranda warnings only apply to statements given by the defendants. Under the case of Miranda vs. Arizona, the Supreme Court stated that when a defendant is arrested he/she must be advised of his/her rights. Those rights include:

• the right to remain silent
• acknowledgment that any statements could to be used for self-incrimination purposes in a court of law
• the right to consult with a lawyer
• the right to have a lawyer present during any questioning
• the right to a lawyer, despite individuals' inability to pay
• the right to stop an interview with a police officer at any time
• the right to be issued Miranda warnings and the right to have any statements made without first hearing the warnings deemed inadmissible in court

Contrary to popular belief, an individual can still be arrested and tried without receiving proper issuance of the Miranda warnings. The effect of not being read Miranda warnings is that none of the statements that an individual gives after an arrest will be admissible in court. Excluding statements that an individual makes without protection of the warnings, police can use all additional evidence to prove guilt. Police cannot, however, use any information that leads to evidence if the lead was learned in violation of the Miranda warnings.

This watershed effect is known as "fruit of the poisonous tree." As an example, a man is not given his Miranda warnings upon arrest, but tells the police that he killed someone and buried the body in a certain cemetery. The police then go to the cemetery and find the body. In a case such as this, not only will the police not be able to use the statement that the man killed someone, but they will also not be able to use the body, because the fact remains that they would not have found the body unless the man himself told them where it was. If the police had properly given the man his Miranda warnings prior to his confession, they would have been able to use both his statement that he killed the person and the evidence discovered at the burial site.

It is not necessary that you be given your Miranda warnings unless you are in custody. If the police talk to you at the scene of an accident, the scene of a murder or any place where you are not in their custody and you give information, that information can be used against you whether you were given your Miranda warnings or not.

Please keep in mind that you are never required to answer any questions that a police officer asks you. You have the legal right to refuse to answer any questions. That legal right is guaranteed under the fifth amendment of the United States Constitution, which includes your guarantee of the right to remain silent. Should you have any reason to believe that you are a potential suspect in a criminal case, you should politely decline to answer any questions from a police officer until after you have had a chance to consult with your attorney. At that time, most attorneys would suggest that you not talk with the police department at all. A police officer does have a right to demand identification from you if you are loitering on public property. Failure to provide identification can lead to your arrest for loitering.

When you are stopped in a motor vehicle for a suspected traffic violation, the police officer does have the right to ask certain limited questions for identification purposes, at which point you have an obligation to provide your driver's license and vehicle registration. You do not need to provide any other further information to the officer. If you are taken into custody by the police, you do not have to use any magical word to let the police officer know that you want to remain silent; this can be indicated by either saying nothing or calmly stopping the questions by noting that you want to talk to your attorney and don't have anything else to say at the moment, or that you are claiming your Miranda rights. If police continue to question you after you claim your Miranda right, it would be a violation of Miranda and would invalidate any statements you make after that point.

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