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What is a Miranda warning? A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answer any questions. Must a police officer always advise a person
of their Miranda rights before asking a question? No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave. For example: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have seen the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary`s statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to. If I am in custody, how do I assert my right
to remain silent? A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect`s 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court. If I am not under arrest, do I have to answer
a police officer`s questions? No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual. EXAMPLE: Tommy is walking down the street and approached by Officer Doright. Officer Doright begins to question Tommy about a bank robbery that happened a few days ago. The conversation looks like this: Officer Doright: Hey, excuse me, I would like to ask you a few questions. Tommy: um, ok, what is this about? Officer Doright: I`m investigating a robbery that happened a few days ago, I thought you might be able to give me some information. Tommy: I just got back in town today from Europe, I really don`t think that I can help. Officer Doright You just got back, that`s interesting, you fit the description of the robber that the bank teller provided. Tommy: Excuse me Officer, am I under arrest? Officer Doright: Umm, well no, but if you have something to say, I promise to help you out. Tommy: No thanks Officer, you have a nice day. Tommy then continues with his walk home from the airport. Can I waive my Miranda rights? Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court. But the police officer said that if I talked,
he would help me out. This is something police officers always say. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge. What is the Fourth Amendment? The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states, The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. Are all searches protected by the Fourth
Amendment? No. Before a court will even entertain the possibility that the search in question was unreasonable, the person being searched must have had a legitimate expectation of privacy. To determine whether the defendant had a legitimate expectation of privacy the courts will look at the following factors: (1) did the person subjectively or actually expect some degree of privacy, and (2) is the person`s expectation objectively reasonable, that is, one that society is willing to recognize? EXAMPLE #1 The police install a hidden video camera in the shower area of a local fitness club. Most people who use the shower in their fitness club have a subjective expectation of privacy. Privacy in a shower area is an expectation that society is willing to recognize. Therefore, the installation of a hidden camera by the police in a fitness club`s shower area will be considered a search and subject to the Fourth Amendment`s requirement of reasonableness. EXAMPLE #2 While John is making a telephone call in a glass enclosed phone booth; he places a bag of cocaine on top of the phone. A police officer walking by notices the bag and arrests John for possession of a controlled substance. At trial, John tries to argue that the search of the phone booth was unreasonable because the officer lacked a warrant. This argument will fail because the court will never even get to the reasonableness of the search. When police find a bag of cocaine on the top of a phone in a phone booth, it is not a search for Fourth Amendment purposes. It is very unlikely that John would think that a public phone booth is a private place, and even if John did, society is not willing to extend the protections of privacy to public pay phones. What is a search warrant? A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause. What is probable cause? This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn`t probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officers hunch, with nothing more, will not satisfy the requirements. Example: Officer Doright observes Tom and Dick walking down the street. Officer Doright has a hunch that Tom and Dick are up to no good. Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for the boy`s home. Should a judge grant the warrant? No. A police officer`s hunch, with nothing more, will not satisfy the probable cause requirement. However, if Officer Doright observed Tom and Dick conduct a drug deal, then probable cause would likely exist for a warrant to search their home. If a police officer knocks on my door and
asks to search my home, do I have to let the officer in? Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence. What if I agree to the search? If you voluntarily consent to a search of your home, automobile, or person, than the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court. What is the Plain View doctrine? Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be. EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather. While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Doright can legally seize these items without a search warrant because they are in plain view. If I am arrested, can the officer search
me? Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person. What are the basic elements of a crime?
No one definition of crime applies to all situations, a simplistic working definition of crime may consider three elements that occur in most crimes: What happens if I am arrested? If you are arrested for breaking a criminal law, the case is taken before a magistrate who may issue a warrant if necessary and set bond for appearance in court. If the defendant cannot post the bond he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with, told their constitutional rights, and of the possible penalties. The defendant will enter a plea of guilty or not guilty, bond may be reviewed, and a date for the next hearing will be scheduled. Can they use force to arrest me? A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances. Can I be arrested for questioning? No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. It is not advisable to speak with the police until you have first spoken with your attorney. You should ask for a lawyer or independent witness to be present during questioning. What if I can`t afford a lawyer? You may be entitled to a Court Appointed Attorney at Public expense if you qualify as an indigent person. An indigent person is one who cannot hire an attorney without causing substantial hardship to himself/herself or dependent family. If you have been charged with a crime, you may complete an Affidavit of Indigence and Request for Court Appointed Counsel at your first court appearance. If you qualify, an attorney will be appointed for you. If you are convicted of a crime, the court may require you to repay some or all of the cost of your defense if it determines you are able. Will I fingerprinted or have to be in a line-up? If you are arrested, the police have the right to take your fingerprints and photographs. You may also be required to participate in a line-up, to provide a sample of your handwriting, to speak phrases associated with the offense or to have samples of your hair taken. You may insist that an attorney be present. Can I answer not guilty even if I am guilty? You are innocent until you are proven guilty. Your lawyer may think that the evidence against you is not enough to prove that you are guilty. You may have a better chance if you have a trial. You have a trial only if you plead not guilty. Am I entitled to a jury trial? You have a right to a jury trial, but you must ask for it. If you do not ask for a jury, only the judge will be at your trial. The jury decides if you are guilty or not guilty. Your lawyer should help you make this very important decision. What is a plea bargain? Settling a criminal case is usually called a plea bargain. It means that the prosecution and the defense come to an agreement to resolve the case. The case can be settled at several points during the process, from before it is charged all the way to trialĘs doorstep. Usually, however, the best bargain can be obtained earlier rather than later in the process. But usually doesnĘt mean always. And in many cases it is a question that should be analyzed immediately so that good opportunities to settlement arenĘt given up because of pride or inattention. What happens at an arraignment? You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set. If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case. Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling. If misdemeanor charges are not dropped, a trial will be held later in county court of law. If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing. What will happen at a preliminary hearing? Every person who is charged by warrant is entitled to a preliminary hearing. If a person remains in jail, he or she is entitled to a preliminary hearing usually within 10 days of arrest. If a person is released from jail on bond, he or she is entitled to a preliminary hearing usually within 30 days of arrest. A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes. If the judge makes a finding of probable cause after hearing the evidence, the charge is sent to the grand jury. If the judge does not find that it appears that an offense has been committed or that the accused is likely the person who committed an offense, the accused is discharged and the charge is dismissed. If the accused is discharged and the charge dismissed after a preliminary hearing, the prosecutor may still present evidence to the grand jury to see if they will find probable cause. What is a grand jury? The court has the authority to impanel grand juries. A grand jury is composed of five to seven citizens convened to consider whether there is probable cause to believe that the person accused has committed the crime charged in the indictment and should stand trial. The grand jury also investigates and reports on any condition that involves or tends to promote criminal activity. What is the role of the jury in a criminal
trial? Jurors must take an oath to honestly; justly and impartially hear a case. A jury is a small group of citizens, chosen at random, who are asked to gather together and hear the case against an accused and to make a determination of guilt or innocence. These jurors are unbiased members of the community. Jurors have a duty to keep an open mind and must not form or express an opinion until they have heard all the evidence, the arguments of counsel, and the final instruction as to the law from the Court. Jurors are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to the testimony. In weighing the testimony to determine what or who is to be believed, the jury should use their own knowledge, experience and common sense to guide them. The jury of twelve people selected to hear the evidence in the case must unanimously agree beyond a reasonable doubt that you are guilty in order to convict you. There are cases, however, where it may be to one`s advantage to waive trial by jury and have the evidence heard by the judge on the case. The jury in a criminal case will consider all aspects of the case in privately for as long as is needed in order to come to the unanimous decision. Once a verdict is reached, it is presented to the defendant in court. A jury may find a person guilty of all, some, or none of the crimes charged. In some cases, depending on the evidence presented and the nature of the instructions given by the court to the jury, a jury may convict a defendant of a lesser crime than that charged in the indictment. If the jury presents a not guilty verdict, then the proceedings are over and the jury verdict may not be overturned. If the verdict is guilty, then the defense may appeal the decision. What is the role of the judge in a criminal
trial? The judge is who is in charged and controls the legal proceedings in the courtroom. The judge will determine whether certain evidence is admissible or
not. They will also rule on preliminary matters and discovery and evidence
issues that the defense and prosecution may have. What is the sentencing hearing? Except for minor offenses, such as infractions a sentencing hearing is held where the final sentence or penalty is determined. The law gives the judge a great deal of leeway in determining what the sentence may be. The character of and circumstances surrounding the defendant can be as important as the severity of the crime in determining what sentence will be imposed. The sentence is imposed after the jury or judge has provided the judgment. At the sentencing hearing, both the prosecution and the defense are given the opportunity to present evidence and testimony to recommend an appropriate sentence. The judge is free to ignore these recommendations, even if the prosecutor and defense lawyer have agreed to a sentence as a part of a plea agreement. What happens after a conviction?
In most cases, after either a plea of guilty or a finding of guilt after trial, the following options may be available: What is an appeal? A defendant who is found guilty of some or all charges is entitled to an appeal to at least one level of appellate court. There are several levels of courts to appeal to; an example would be appealing to the circuit court of appeals first and then up to the next level. This can potentially continue on until it reached the Supreme Court of the United States. An appeal is a formal request that a higher court review the decisions or actions of a lower court. The defendant that is found guilty in the lower court usually makes an appeal. Some grounds for an appeal may include insufficient evidence, violation of rights or possible mistakes made by the judge or even how the jury handled the case. If I am arrested, should I hire an attorney? You may be entitled to a Court Appointed Attorney at Public expense if you qualify as an indigent person. An indigent person is one who cannot hire an attorney without causing substantial hardship to himself/herself or dependent family. If you have been charged with a crime, you may complete an Affidavit of Indigence and Request for Court Appointed Counsel at your first court appearance. If you qualify, an attorney will be appointed for you. If you are convicted of a crime, the court may require you to repay some or all of the cost of your defense if it determines you are able. What are Financial Crimes? Financial crimes including check fraud and deposit are among the largest challenges facing businesses and financial institutions today. Financial crime professionals have become increasingly skilled and sophisticated, thanks to advances in readily available technology such as personal computers, scanners and color photocopiers. It has been estimated that the annual losses due to check and deposit fraud are in the billions of dollars. Losses continue to grow steadily as criminals continue to seek ways to earn a living by defrauding others. For the consumer, the amount of inconvenience and anxiety caused by resolving problems with the account, local merchants, as well as possible repercussions with credit bureaus can be considerable. These crimes also affect consumers by means of increased fees they have to pay banks due to the banks having to hire risk identification specialists and purchase specialized software to protect them from further losses. A lot of counterfeiting is done through desktop publishing and copying to create or duplicate an actual financial document, as well as chemical alteration, which consists of removing some or all of the information and manipulating it to the benefit of the criminal. Victims include financial institutions, businesses who accept and issue checks, and the consumer. In most cases, these crimes are perpetrated by means of someone stealing a blank check from your home or vehicle during a burglary, searching for a canceled or old checks in the garbage, removing a check you have mailed to pay a bill from the mailbox, stealing bank statements and expired ATM cards from your home or garbage, as well as other low-tech and high tech methods of acquiring your banking account information What are Some Common Types of Financial Crimes?
The following are financial crimes typically committed against banks and financial institutions: How Can I Avoid Being Financial Crime Victim?
Banks are taking increasingly sophisticated approaches in detecting and stopping fraudulent activity. To keep from being a victim, you too have to take a proactive role in safeguarding your checks, ATM cards and other bank account information. The following common-sense tips will help minimize your chance of becoming a victim: How Do I Report a Financial Crime? Help stop financial crimes by reporting them to the National Check
Fraud Center. The National Crime Alert Network is a network of local
law enforcement, Federal Bureau of Investigation (FBI), US Secret Service,
and financial and retail communities that participates in a rapid response
notification network, providing "real time" information and intelligence
of criminal activity and crimes within a given area. Report stolen checks,
credit card fraud, debit card fraud, NSF checks, closed account checks,
stopped payments, checks involved in a scam, forged and counterfeit
checks that you or your organization have received. Call (843)
571-2143 What is bail? Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned. What happens at a bail hearing?
The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results. A judge holds an official arraignment later. There
are four possible results from the bail hearing: What is the difference between criminal law and civil law? Civil law suits are private suits between two or more citizens. Civil law is the area of law by which private individuals resolve their differences with the help of the civil courts. Criminal law involves a citizen or a business and the state. The rules of the federal government and all individual state governments are codified into statutes. When an individual violates the rules, as listed in the statutes, then the federal government or the state will prosecute the individual. The remedies available in civil courts are generally limited to money damages. The remedies in criminal court may involve a money fine and/or a prison sentence. Can some activities be both a criminal offense and a civil offense? Yes. For example, if Dave decides to walk up and slug Matt, Dave may be guilty of battery in a criminal court and liable to Matt for battery in a civil court. Is being guilty the same as being liable? No. Guilt or innocence are terms used only within a criminal proceeding. Liability or non-liability are terms used only within a civil proceeding. How could O.J. be found not guilty in his criminal case, yet, liable in his civil case? The different court systems have different burdens of proof. To be found guilty in a criminal proceeding, the state must show beyond a reasonable doubt that you are guilty of the crime charged. Beyond a reasonable doubt is a difficult burden to meet. In a civil case the plaintiff must show by a preponderance of the evidence that the defendant is responsible for any damages. Numerically, a preponderance of the evidence is a showing of a 51% certainty that the defendant is responsible. Beyond a reasonable doubt requires a showing of guilt closer to 100%.
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