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Published: 2008-03-26

Criminal Law Questions and Answers



How is the court system is set up?

The criminal court system is designed to provide a fair, impartial and speedy trial. Entry into the system begins at arrest. After the defendant is booked, they make an initial appearance where they are either released on their own recognizance, released on bail, or released due to a lack of evidence. In the case of a felony, there will be a preliminary hearing to see if enough evidence exists to believe that a crime was committed and if the arrestee was the person who committed the crime. Then comes the arraignment where the defendant pleads guilty, not guilty or no contest. If the defendant pleads guilty or no contest, they are sentenced. If not guilty, then it goes to trial. If convicted, the defendant is sentenced. If acquitted, they are released. Sentencing may involve fines, jail time or probation or a combination of the three. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What if I am accused of a crime?

If you are accused of a crime, you should be aware that you have certain rights that can help you defend yourself. Most importantly, you will receive the Miranda warning which will tell you that you have the right to remain silent and the right to an attorney. These two rights are so important that a Supreme Court ruling determined that police must tell the arrested party of their constitutional rights - particularly the Fifth Amendment right against self-incrimination. Once you have called an attorney or had one appointed for you by the court, obey the directives of the police and wait for your attorney to come and advise you. Your attorney can tell you what you can expect from the situation and give you alternatives. Often, an attorney will tell you not to make a statement or sign a confession. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

How do I get out of jail?

Getting out of jail is everyone's concern that happens to be in jail. If you have been arrested, you will be given the opportunity to cite why you should be allowed to post bail or be released on your own recognizance. Bail is a sum of money that the defendant must post to be released from jail and will lose, if he or she fails to appear in court. The court determines the appropriate amount according to the crime and the defendant's previous record. Many states have what are called a bondsman. A bondsman will, for ten percent of the bail, act as the surety, and put up the money. In Nebraska, we do not have bondsmen; the Court acts as the bondsman. This means, if the defendant must pay the court the bail. If you are released on your own recognizance, you need not pay anything. If you fail to appear, the judge will issue a bench warrant. You may also be released from jail during an appeal. This is called an Appeal Bond. And finally you may be released from jail after a conviction if you are pardoned. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is a bond Hearing?

The bond hearing determines if you are to be granted bail. This is usually the first hearing. The judge must set a reasonable bail in all but a few cases. The size of the bail is determined to a large extent by the seriousness of the crime. A theft at gunpoint will obviously command a higher bail that a disorderly conduct charge. The judge will also consider the probability that you will flee. If you are a pillar of the community, have no prior arrest record and family ties to the community, your chances for bail are greatly improved. If you have a record of failing to appear for court, the bond will most likely be set higher. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

How do I hire a criminal lawyer?

Hiring a criminal lawyer is a matter of selecting one who has had experience with the type of crime with which you have been charged. Seventeen states use specialization programs to certify lawyers as specialists in particular areas of the law. In Nebraska, the state bar does not certify specialists. You must be sure to ask the attorney in what area they specialize or concentrate. When it comes to your freedom, it is important that you select an attorney with whom you feel comfortable. You should be able communicate freely and effectively. You should also discuss fees. If you cannot afford an attorney the state will provide you representation, that person is called a Public Defender. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is a felony charge?

The felony case is reserved for more serious crimes that warrant harsher penalties than a misdemeanor. Generally speaking a felony case carries a penalty of more than one year in the state penitentiary. If convicted of a felony, you will forfeit certain rights unless otherwise provided for in the law. A felon will lose the right to vote, hold public office, own a gun or become a witness in any case, unless they are pardoned or it is necessary for their own defense. There are a few procedural differences in a felony case as it comes to trial, but on the whole it is much the same as in a misdemeanor case. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter

What is a Misdemeanor charge?

A misdemeanor is generally any crime in which the punishment is less than one year in jail. You do not lose any privileges as you would if convicted for a felony. You can still vote and hold office as well as give testimony at trial. Misdemeanors range from putting a dead animal in a well to 3rd degree assault and battery. Often the theft crimes can become a felony if the dollar amount of a theft reaches a certain point - as in petty larceny, which becomes grand theft - or when the crime is repeatedly committed, making the crime habitual. If the court finds the defendant to be a repeat offender, fines and jail time can increase substantially. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is shoplifting?

In Nebraska shoplifting is considered a class 2 misdemeanor unless the dollar value of the item stolen is more than $200 or it is the second offense - then it becomes a class 1 misdemeanor. In the case of the item being from $500-$1500 or a third offense, it becomes a class 4 felony. Most stores will prosecute the shoplifter as a matter of store policy. They know that if they don't, the word will be out and they can count on an increase in shoplifting. If you are caught shoplifting, do not be surprised if the store decides to prosecute. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

Tell me about child abuse

Society is serious about child abuse. Behavior that had been acceptable only a few short years ago, could warrant severe penalties including fines, imprisonment or both. The common notion of what constitutes child abuse was once direct physical action that harms a child, including having sex around children, or child pornography. Today it also includes mentally abusive behavior and the withholding of clothing, food, medical care and housing. Anyone that wishes to contribute to the investigation of a child abuse case will be free from civil and criminal liability - the purpose being the rescue of the child from abusive circumstances. But, if you file a report you know not to be true, you can be charged with a misdemeanor. If you know of a child suffering from abuse, you should report it immediately. Failure to do so is a crime. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is domestic violence?

The "Violence Against Women" Act signed into law on September 13th, 1994 has toughened the laws concerning the rights of battered women. It has made illegal and set federal penalties for anyone who crosses a state border in order to violate a protection order. This means either a male or female spouse or intimate partner. Repeat offenders may be sentenced to twice the time otherwise authorized. And it forbids the use of a victim's sexual past as a method of character assassination in a civil or criminal proceeding. In addition, if you are found guilty or plead to a domestic charge, you will most likely be forbid to own or carry a gun. If you are being prosecuted for harassment, you should contact an attorney immediately. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What are Juvenile crimes?

As a juvenile you have all the same rights as an adult and a few more. If you are seventeen or younger, in most instances your case will be heard in a special court held for juveniles. In this court you will come before a judge who will hear the case, though you will not face a jury of your peers. You are considered innocent until proven guilty, just as an adult and you will have the right to an attorney - a crucial need whenever involved with the law. The justice system is just that, a system of rules that help to guarantee a fair and impartial trial designed to administer justice. A criminal attorney should be well versed in these rules and can help you to use the system to your full advantage as it was meant to be used. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What are drug offenses?

The laws governing illegal drug possession and distribution have stiffened again and again over the years. Besides the ever increasing possibility of jail time for possession -lengthy jail time - there is a relatively new enforcement tool in the prosecutor's kit - forfeiture law. Simply put these forfeiture laws allow the government to seize assets that have been acquired through criminal activities or that has assisted in certain drug crimes. For instance a home which had been used to grow marijuana may be subject to seizure. Then there are the license suspensions and the loss of government benefits. You may lose your driver's license or professional license. You may lose your student loan, public housing or even the custody of your children. It is very important that you contact an attorney immediately if you are arrested for a drug offense. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is a sexual offense?

Sexual offenses include any form of sex forced upon another without their consent and sex performed on another who is unable to give their consent or who is not mentally capable of making that decision. It also includes offenses such as indecent exposure. Most sexual assault offenses are felony charges carrying more than a year of jail time and substantial fines. If you are found guilty or plead to a sexual offense, you most likely will have to register as a sex offender. With the toughening of federal laws, penalties have -become harsher. There are a number of exacerbating conditions that may increase penalties even further. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is a firearm offense?

If you carry a firearm during the commission of a crime, then it is likely the severity of the charge and the resultant punishment will substantially increase. The federal government and Nebraska state government have, in response to increasingly violent crime, stiffened penalties for crimes committed while either using or carrying a firearm. In Nebraska you cannot carrying concealed firearms or sell a weapon without proper authority. You cannot discharge a weapon within the Omaha city limits. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What are white-collar crimes?

White-collar crime has no fixed definition but is usually taken to mean any crime that has cheating dishonesty as their basis. These are non-violent crimes and usually do not incur much jail time, but the fines may be extremely heavy and they may be ordered to pay restitution. Often associated with professionals, these crimes are sometimes difficult to prosecute because of their complex nature. White-collar crimes include bribery, computer crime; false statements and embezzlement. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is a Federal crime?

The United States court system uses a dual system of state and federal courts. The founding fathers determined that certain issues unique to each state must be decided at the state level and issues related to larger national issues must be dealt with at the federal level. Any crime that is a violation of a federal criminal law passed by Congress is by definition a federal crime. This could include the murder of law enforcement officers and their families, treason, or mail fraud. Federal laws govern issues between citizens of different states, between two or more states and cases involving foreign nationals. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is an appeal and how do I do it?

If a defendant has been through trial and believes their case to have been improperly handled by the judge or the laws were improperly applied, then they have the right to appeal a court's decision. The appeals process does not generally look at the facts of the case but at the process under which the facts were presented. If the appellate court finds that errors were made in the trial, a new trial will be ordered. The defendant should be aware that the skills of a lawyer trained in trial work will differ from a lawyer trained in appellate law. A lawyer skilled in appellate work should be able to perform legal research and writing as well as have the ability to argue complex legal issues before a judge. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What do I do if I'm stopped for drunk driving?

If you are stopped by a law enforcement officer and suspected of drunk driving, you will probably be asked to take some type of test to determine your blood alcohol level. In Nebraska you are required to take a preliminary breath test and an intoxilyzer test, however you are not required to take other field sobriety tests such as touching your finger to your nose. If you refuse to take the intoxilyzer, you will have you license suspended for one year, regardless if you were drunk or not. While it is important that you do not make any incriminating statements to the officer, you should always act in a courteous and respectful manner to the investigating officer. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What is the first time offenders maximum punishment?

Over the last few years, more states have stiffened penalties for drunk driving, including first time offenders, hoping to reduce the number of offenders. The first time offender in Nebraska is subject to a jail term of between seven and sixty days, loss of license for six months and a fine between two and five hundred dollars. If a person receives probation, their license will still be suspended for sixty days and there will be a fine. All offenders are generally ordered to undergo some type of alcohol counseling or treatment. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

Should I say I've been drinking?

You are not required by law to answer any potentially incriminating questions. You have the right to an attorney before answering any questions. You should consider saying very politely, "I would like to speak with an attorney before I answer any questions." Never tell an officer you have been drinking as you are simply adding evidence to the State's case. Some people believe that statements will not be admitted into evidence at court. Statements made by the defendant that are admissions are admissible evidence in court. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What about field sobriety tests?

There is a wide range of field sobriety tests, including walking a line, finger to end of nose, one-leg stand, eyes follow a pen, and the list goes on. Most officers use a set of three to five of these tests on a regular basis. Unlike the chemical or breath test, you are not legally required to take any field sobriety tests. The truth is that officers have the option to give those tests; by using them they are just adding evidence to their case. The suspect will almost always fail these tests. So if you are asked to take a field sobriety test, you may want to consider being polite and refuse. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

If I don't agree to take a chemical test?

The consequences of refusing to submit to a blood, breath or urine test are serious in Nebraska. If you do refuse, you will have your license taken away for 12 months. The decision also takes a key piece of evidence away from the State. However, the State can still convict a motorist by showing their driving was impaired without a breath test. In other words, refusing to take the breath test does not mean that you cannot be convicted of drunk driving. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

No Miranda Warning, case dismissed?

Popular television shows have led many people to believe that no Miranda equals case dismissed. If you are not read you Miranda rights your case will not be automatically dismissed. The officer must advise you that any statements you make can and will be used against you in a court of law. If the officer fails to give such a warning after an arrest, then the statements can be suppressed. If the statements are suppressed, the prosecution cannot use any of your answers to questions asked by the officer after the arrest. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

License revoked/notice of suspension?

Driver's licenses can be suspended for many different reasons. In Nebraska one can be suspended for failure to have proof of insurance, for having too many points on their driver's license, as part of a driving under the influence conviction, or in other ways. If a person drives when his or her license is suspended, the penalty is up to 90 days in jail and an additional years license suspension. People often get caught in a cycle of suspensions if they absolutely must drive and get caught. This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.