My name is Peter Aiken. I am a criminal defense attorney with the firm of Aiken, O'Halloran & Associates in Fort Myers, Florida. Welcome to "Your Rights and the Criminal Justice System." In this Article, I will give you an overview of the criminal justice system and some of your basic rights in the state courts in Lee, Charlotte, and Collier Counties. The laws in other states are different, and there are also substantial differences between state and federal prosecutions. Since most criminal prosecutions occur in the state court system, in this article I will address your constitutional protections and your procedural rights in the Circuit and County Courts of Florida. If your prosecution is either presently in Federal Court, or likely to be filed there, call us for a more detailed explanation.

YOU DO HAVE RIGHTS
If you have been arrested or are likely to be arrested in the future, there are important facts you need to know about the criminal justice system and your rights. Many people, primarily as a result of watching television programs, have a misconception of the law and function of the criminal justice system. What you see on TV is not reality.

First and most importantly, each criminal case is different. Just like people, each person's background is different, and the individual facts and circumstances of a particular arrest may give rise to unique legal defense. If you have already retained a defense lawyer, always listen to and follow the advice of that attorney. Also, keep in mind that since everyone's situation is different, actual legal advice can never be given until the facts are fully discussed in confidence.

It has been my observation that the average person really doesn't know his or her legal rights. Television shows often grossly distort and exaggerate reality. Although at the time of an arrest an officer may sometimes read you "rights" from a Miranda card, or a judge or public defender at First Appearance over a video screen may advise a person of some of their rights, it is important to understand that these "rights" usually include only a minimal portion of one's actual rights. It is possible to waive or give up valuable, important legal rights and defenses before, during, and after an arrest. Since most people don't know their legal rights, the sooner representation by competent defense counsel is obtained, the lesser the likelihood of waiving or giving up valuable legal protections.

In most criminal cases, time really is of the essence. There are many important decisions to make. Since these decisions may change the course of not only the case, but also a person's life, the more information you have, the better advised and the more informed your decision will be.

THE ARREST
Most, but not all, criminal prosecutions begin with an arrest by a law enforcement officer. This can be a county deputy, a city police officer, the highway patrol, or other state, local or federal law enforcement officials. An arrest can be the result of the officer's personal observations, such as in a DUI case, or as a result of a police follow-up to a 911 call. Sometimes, an arrest is the result of an ongoing investigation (for example, a situation involving a bad check or fraudulent use of a credit card). Most of the time, however, the issue of whether or not to make an arrest is an officer's personal decision.

In order to make a lawful arrest, a police officer is supposed to have "probable cause" to believe that the person arrested has committed a crime. This does not mean that the person arrested is guilty, but merely that the officer, at that moment in time, has made a decision that he or she believes an offense has been committed, and that the person being arrested is the person who committed it. There may be other instances when the state attorney's office directly files a charge and causes an arrest warrant to be issued. Once again, this does not mean that the accused person is guilty; it simply means a prosecutor has made a decision to go forward with the prosecution.

The formal charge filed by the prosecutor is called an "Information". The "Information" is the formal charging document signed by the prosecutor. It is on this formal charge that your criminal case goes forward. There are some rare instances, such as in a first-degree murder case, where the formal accusation takes the form of what is known as a grand jury indictment.

When a person is arrested, and prior to being transported to jail, he or she in most instances is searched. Sometimes this search can lead to the discovery of additional evidence and additional charges. For example, if drugs are found in a person's pocket when they are arrested, or if a person is arrested in a vehicle or car and the search of the vehicle discloses additional evidence, it may give rise to additional charges. Often there are valid legal defenses arising from the circumstances surrounding the arrest or the search and seizure of your person or vehicle.

Most people are unaware of the law with respect to search and seizure. A competent defense lawyer, after investigating the facts, may be able to challenge the evidence seized at the time of the arrest. Just because evidence is discovered, or an incriminating statement is made, it does not automatically mean that this evidence is admissible in a court of law. The law of search and seizure is complex. Experienced, defense counsel may find technical flaws or legal technicalities in the state's case that can in some instances result in the evidence being suppressed and excluded from use in court. Before making any decision to plead guilty, a person should thoroughly and privately discuss the unique, factual circumstances of his or her case with competent defense lawyer. Never plead guilty without a face to face meeting with an attorney.

THE RIGHT TO AN ATTORNEY
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, an accused person is guaranteed the right to "assistance of counsel". Over the years, the courts have interpreted this Amendment to require the police to specifically advise defendants of this important right. The right to counsel is an incredibly important right. Since the average person is unfamiliar with our legal system, the law, criminal procedure and the rules of evidence, the right to the assistance of counsel is essential to the proper administration of justice. An unrepresented person is at an enormous disadvantage. Imagine yourself playing a game of high stakes poker without knowing the rules. It is our personal opinion that no one should ever attempt to represent himself or herself in a criminal case. Never represent yourself!

Unfortunately, in the real world, most people first learn of their right to an attorney while being handcuffed and transported to the police station. In the case of a DUI, many times people are advised of important rights after an officer has already concluded that the arrestee's mental faculties are impaired. An "advice of rights" unfortunately, is sometimes given after a chase or a struggle, or at a time and in a manner that makes it difficult to understand. For example, being advised of your rights after being tasered or maced, or when you are drunk, may not be legally adequate.

Many times, people are not formally advised of the right to counsel until they come to court the next day, or in some instances at their arraignment some weeks after their arrest. In many cases, having the assistance of an experienced lawyer early in the prosecution process can make an enormous difference in the outcome of your case. It can in some instances make a difference in whether or not your case goes forward. It is also important to hire an attorney familiar with the local rules, judges, prosecutors and law enforcement. Just like in fishing, often, a local guide makes the difference between success and failure.

When a police officer makes an arrest, generally it is because the officer has formed an opinion that he or she believes probable cause exists that a specific person has committed a particular crime. The actual decision as to whether or not to go forward with the prosecution, however, is not made by the officer. That decision is made by a prosecutor, often referred to as the District Attorney or State Attorney.

Many times the police reports are very one-sided and fail to disclose facts or witnesses that tend to show that the person is not guilty. For example, in domestic violence cases, the person arrested may not have been the aggressor or may have acted solely in self-defense. In drug cases, the drugs may not have been in the person's possession, or may have been placed on the person, or in a vehicle or car, by somebody else. The police may have made an unlawful stop or an illegal search, or the police may have grossly exaggerated the truth or simply lied. Unfortunately, in the real world, police officers sometimes exaggerate, or give a very one-sided view of the facts. These are all matters that the prosecutor may not be aware of when the prosecutor makes a decision as to whether or not to go forward with the case.

If a defense lawyer is hired immediately following an arrest, in some instances, defense counsel may actually convince the prosecutor to drop the charge or to file a lesser charge. On the other hand, if after an arrest, a person simply waits for an arraignment date, a valuable opportunity may be missed to have their defense attorney intervene and raise these critical issues during the case filing decision process. There is a window of opportunity between the date of arrest and the filing of the charge and, in some instances, timely intervention by a good defense attorney can make an enormous difference.

The right to counsel in a criminal case is so important that if a person is poor, or without funds, and has no way of hiring an attorney, the court will appoint an attorney. Although attorneys must meet minimum requirements to practice law, just like doctors, their qualifications and levels of experience may vary greatly. In the criminal justice system, defendants are generally represented by either private attorneys, public defenders, or, in some rare instances, court appointed attorneys.

Hiring a lawyer in many respects is like going to the doctor of your choice. If you hire your own lawyer, you can select the lawyer you feel is most qualified and experienced. You can interview various attorneys and then pick the one that you want to stand beside you in court. If the court appoints the public defender's office or another court appointed lawyer, you have no input and really no choice in who is representing you. The public defender appointed for you may be highly qualified and experienced, or someone fresh out of law school and recently admitted to the Bar, with little or no courtroom or trial experience.

In order to qualify for a public defender, the court must make inquiry to determine if the accused person is financially unable to hire his or her own attorney. An arrest, for most people, is not a planned event. Most people do not have money set aside to hire a defense lawyer and, for many people, hiring an attorney is a financial hardship. In some respects, it is similar to many other financial emergencies, such as a medical emergency or a car breakdown, or a hurricane. Just like most other emergencies, many people often have to raise money by contacting friends, relatives, or employers.

For many people, it is necessary to borrow money or charge the attorney's fee on a credit card. Unfortunately, there are, however, some people who simply cannot raise funds from any source. Just as some people have no choice other than to go to a public health clinic, these individuals have no choice other than to use the services of the public defender.

Unfortunately, the public defender's enormous caseload in many instances limits the amount of time that can be devoted to a particular case. Competent private defense attorneys never take more cases than they can competently and adequately handle. They have a choice. The Public Defender's Office, on the other hand, has no choice. Just as sometimes the jails are overwhelmed and overcrowded, the public defender's case load is also sometimes overwhelmed. Sadly, it has been my observation that often the public defender meets or sees his client for the first and only time in the courtroom or in the hallway minutes before entering a plea of guilty.

Many times, if a person is in jail, he or she may have no face-to-face contact with his or her public defender until after the arraignment date, some three or four weeks after the arrest. Unfortunately, communicating with the public defender by telephone is often made difficult by the public defender's case load and daily court appearances and restrictions on phone usage at the jail.

Choosing a good lawyer may be one of the most important decisions you will ever make. If you have been arrested, you have already made one mistake. Don't make another by hiring a cheap or inexperienced lawyer. Would you want to buy the cheapest parachute or a bargain life jacket?