Criminal Defense FAQs

Q. Can I be prosecuted by the federal government and the state government?

A. Yes. They are separate sovereigns. If the conduct is a crime under laws of each government, you can be prosecuted.

Q. Then what is double jeopardy?

A. Double jeopardy forbids the same government from prosecuting you again for the same crime.

Q. Am I required to talk to the police ?

A. No. This is America. However, you should not confuse your legal rights with your freedom to perform your civic duty.

Q. Won't the police think I am guilty of something if I say that I want to talk to my lawyer?

A The thought process of a police officer is less important that your civil rights under the Constitutions of the State of New York and the United States of America.

Q. Does this mean that I can never be detained or arrested for refusing to talk to a police officer?

A. No. The police have the right to investigate crimes, to make reasonable inquiry, to detain you upon proper grounds, and to make an arrest if there is probable cause to do so.

Q. Do the police need an arrest warrant?

A. Generally yes. As long as there is time to get one, the police are required to do so.

Q. Do the police need a search warrant?

A. Generally yes. There are exceptions. For example, if they claim that contraband was in "plain view" in your car. Or if the alleged evidence is discovered incident to a an otherwise lawful arrest.

Q. What happens if I am searched unlawfully ?

A. Any evidence that is seized as a result of an unlawful search should be suppressed.

Q. Can the police lie to me?

A. Generally, yes. That's why you are well advised to consult legal counsel before you provide information to the police. Statements voluntarily made by you to the police can be used against you (admitted into evidence) in a court of law.

Q. Then what are "Miranda" rights?

A. So called "Miranda" rights apply to statements that are made by a defendant that are taken by the police as a result of custodial interrogation Once you have been detained as the focus of a criminal investigation the police have to advise you of your right to counsel and your right to remain silent. If those rights are violated you statement to the police can be suppressed. Nowadays, most confessions are videotaped. But there are still many viable trial and appeal issues that arise to show that a confession was coerced.

Q. Is that the fifth amendment privilege against self incrimination?

A. Generally yes. Not only can you not be compelled to be a witness against yourself, your exercise of that right (decision not to testify at the criminal trial) cannot be referred to or used to convict you of a crime.

Q. If there is a confession that is not suppressed, is that the end of the case?

A. No. You can still argue to the jury that the confession was coerced. And the prosecution still has to prove the elements of the crime charged. There must be other evidence, or corroboration.

Q. Does the fifth amendment privilege extend to a civil case, such as my divorce if for example my wife's lawyer asks me if I failed to report and pay taxes on cash that I earned in my business ?

A. Yes you are entitled to assert the fifth amendment in a civil case. You need not testify. However, the Court (the judge or the jury) can draw and adverse inference and, for example, conclude that there is extra cash available to pay alimony.

Q. Do I have any other risks if I assert my fifth amendment privilege and refuse to answer a question at a civil trial ?

A. Yes. If the judge finds that there is evidence of tax fraud, she or he is mandated to report the case to the IRS.

Q. Can the police search my home and my car?

A. Generally, no. The Fourth Amendment to the United States Constitution and the due process clause of the New York Constitution guarantee the right to be free from unreasonable searches. Usually that means that the police have to obtain a search warrant from a neutral magistrate, which establishes probable cause to search.

Q. What is spousal privilege?

A. Spousal privilege is a special rule, first established at common law and now codified under New York law, that shields confidential communications between spouses. Generally, it means that neither you nor your spouse is competent to testify against the other. Thus, a statement by a husband that he has committed a crime is privileged.

Q. If my wife signed a joint income tax return does that mean she cannot raise evidence of tax fraud.

A. No. Unless she is a truly "innocent spouse" (as defined by the IRS) she might lose her tax savings, and you both might lose your property in enforcement proceedings, but the divorce court can go behind the tax returns and make findings of fact as to the actual financial arrangements in your house hold.

Q. What is attorney/client privilege?

A. Attorney client privilege is a special rule that protects all communications between you and your lawyer. It means, for example, that you can confess to the admission of a crime and your attorney cannot reveal that information.

Q. What if someone else is present?

A. The privilege is waived if anyone else, other than a member of the attorney's staff is present.

Q.. What is the Grand Jury?

A The grand jury is the body that returns an indictment. The indictment in turn is the instrument that formally charges a defendant you with a crime.

Q. Can I testify before the Grand Jury?

A. Sure. That is your absolute right. But bear in mind that one former Chief Judge of the New York Court of Appeals said that a grand jury would indict a ham sandwich. I have successfully put defendants before the Grand Jury, and Grand Juries do refuse to return an indictment from time to time. But it is rare. After you testify anywhere, including the Grand Jury, your statement can be used against you if you testify at the trial. So as far as testifying goes, less is more.

Q. What is a petit jury?

A. The petit jury is the jury that hears the case and returns a verdict if guilty (proven beyond a reasonable doubt) or not guilty (not proven beyond a reasonable doubt).

Q. What is habeas corpus?

A. Habeas corpus is latin for the phrase "produce the body". It is the writ that first arose at common law and still exists today to question the legality of detention. If a person, whether it be a criminal defendant, or a child in a child custody case, is being illegally detained, the writ of habeas corpus is the method used to challenge the illegal detention.

Q. Is jury selection important at a criminal trial ?

A. I think that jury selection is perhaps the most important phase of a criminal trial.

Q. Why is that?

A. Because the jury is the exclusive judge of the facts. Most people process information based upon who they are culturally and in terms of their intelligence. So you want the right composition on your jury, compatible with the theory of your defense.

Q. So how does a criminal defendant get the best jury for her or his case?

A. First you have to know who you want, then you need to do a diligent job during the voire dire (jury selection) phase of your case. Basically, you want to know what makes them tick. Are they inclined to be skeptical about the testimony of law enforcement? There are many factors to consider. Your gut instincts, and mine, are two of them. In the proper case, it can be very helpful to have a jury selection expert at the defense table. You also need to know how the process works. Certain challenges to prospective can be made for "cause". Certain challenges are "peremptory". But they are limited and you don't want to squander them.

Q. What are the themes that you develop during the voire dire phase of the case ?

A. I always try to have every prospective juror expressly promise me that they will be fair and impartial. I even ask them to say the words "Not Guilty" for me, to make sure they won't be afraid to stand up and look the prosecutor in the eyes when they say those two words at the end of the case. I urge the prospective jurors to reject speculation and suspicion. Their verdict must be based on facts proven in the court room during the trial - - even if I do nothing during the trial. I remind the jurors that the mere fact that a Grand Jury has returned an indictment and we are having a trial does nor mean that the defendant is probably guilty. I stress this point with each of them, and asks each of them to assure me that they accept that proposition. I also talk about the awesome machinery of the state, and the importance of protecting the individual, like the story of David and Goliath in the Old Testament.

Q. When will the jury begin to find out about my case?

A. During the jury selection phase of the trial. Its here that we will begin to tell your story, which might be a rush to judgment by the police, or persecution, or a lie by as witness, or sloppy police work.

Q. I thought you said there is a presumption of innocence?

A. There is. But there is also a concept called common sense. We can tell your story through the cross examination of witnesses. We can argue burden of proof at the conclusion of the case. But I think we should have a cohesive defense posture before we enter the court room. There are always some tough questions to answer. By the time the trial starts we will have logical and sensible answers for all of the tough questions in your case.

Q. Is the opening statement important?

A. Yes. Of course. But if you are a defendant you don't have to make an opening statement. And you might choose to tell the jury during voire dire that you have no obligation to do so. Whether you set forth a version of the facts, or not, in the opening statement, this phase of the case continues the story telling that is your reality and your version of the facts. In my opinion the jury usually needs to know what your story is, so they can feel comfortable concluding that the prosecution has not met its burden of proof. Most trials present a case of apples and oranges. Primacy, repetition and recency are very important tasks for the criminal defense team.

Q. What should I be doing during the trial testimony portion of the case ?

A. You should be helping your lawyer, by staying quiet and taking notes. My adage for a client during the trial is "Don't do something, just sit there." I like to refer to the client's role in all phases of all my trials with the 3 Rs. My 3 Rs are not "reading" "writing" and "arithmetic". My 3 Rs for clients on trial are "Respect" "Restraint" and "Rehearse." Respect the person wearing the robe, and everyone else. A trial is a one performance play. What makes you feel good (like answering back a lying witness, or a nasty prosecutor) doesn't look good to the audience (jury). There is no benefit to acting out, or ad libbing, or failing to think before you speak. By rehearse, I don't mean to make up a story. In fact if the witness says the same thing verbatim , we think its not true. But if there's a hot button issue in your case, for example, why did you run away from the police? - - you should have a logical answer that is not evasive.

Q. Does this mean that I have to testify?

A. Absolutely not. On many occasions, I advice clients who can testify (well educated people who have the gift of gab) that they should not bother to testify. Once you get on the witness stand the jury ifs free to disbelieve what you say. Your defense may look stronger without your testimony You might unwittingly supply the element of the prosecution's case that is otherwise missing.

Q. What is hearsay?

A. Hearsay is an out of court statement that is offered for the truth of the matter asserted. At a trial we want only reliable evidence. If for example the police say that someone who is not in court witnessed a crime, I cannot test the truth that statement, by cross examining the witness to ascertain what he or she actually saw.

Q. What do you try to accomplish during cross examination?

A. A great lawyer once said that the cross examination of a witness is like approaching a man armed with a knife. Cross examination is perhaps the most important skill of the criminal defense lawyer. It has also been described as the greatest engine ever invented for the discovery of the truth. When done well it is like watching a skilled surgeon perform surgery. The first question for the defense lawyer is whether to cross examine a particular witness. The second question is how best to avoid damage to your client. Once those questions are answered, the task at hand can be undertaken in many different ways. To paraphrase Shakespeare in Hamlet "The play's the thing". You may want to bring out facts that help your client. You may need to impeach the ability of the witness to observe. There are many approaches, and many finite skills to help you build the structure of your defense to the criminal indictment.

Q. What does the criminal defense lawyer seek to establish in the closing statement ?

A. I believe that there are five 5 basic objectives of the defense summation

1. To win the friendship of the jury for the defendant.

2. To clearly state the facts that require the jury to acquit the defendant.

3. To explain the basis for finding any reasonable doubt as to the guilt of the defendant.

4. To call attention to flaws and weaknesses in the prosecution case.

5. To arouse the sympathy of the jury for the defendant.

Q. Do you follow any practical suggestions when you try a criminal case before a jury?

A. Yes. There are 12 rules that I try to observe in summation:

1. I try not to pace up and down the jury box. But I look every juror in the eye. And I try to use their names when I talk to them.

2. I do my best to personalize and humanize my client. I always refer to my client by name. I place my hands on her or his shoulders, and I emphasize that this case is not about me and my trial skills, it is about my client and it is the most important event in her or his life.

3. I always remind the jury of the promises they made on voire dire. They will have promised to be fair an impartial, and to hold the prosecution to its burden of proof beyond a reasonable doubt.

4. I remind the jury that the prosecution has the burden of proving my client guilty beyond a reasonable doubt.

5. I implore each of the jurors to eliminate bias or prejudice against my client, or against me, if for example I was tough on a witness during cross examination, or I found it necessary to stridently disagree with the judge in the presence of the jury.

6. I urge the jurors to reject speculation and suspicion, as they promised to do during the jury selection phase of the trial. I try to I've the jurors a theme, like: A verdict of not guilty as "A" "B" "C" - - connected to proof in the case, that they can remember and take back to the jury room to help them tie all of the evidence together.

7. I try pose a few questions for the prosecutor to answer. However I do not dwell on this, because it can empower the prosecution, and I want the jury to ignore the prosecution.

8. I always anticipate the prosecution arguments. I can't speak again. This is our last and best chance to deflate the prosecution's arguments. People are not stupid. The jurors will sense it and resent the defense team if we avoid something that is important.

9. It is of course essential to attack the weakest points of the prosecution's case.

10. Going back to the voire dire phase of the case, I stress elements or claims that were made by the prosecution in his opening statement which he has failed to prove. In short, connect the dots, or show how the dots cannot be connected.

11. I repeat all of the favorable evidence that require a verdict of not guilty.

12. If there was bad behavior by the prosecutor (nobody is perfect), I use my summation to remind the jury about that bad behavior.