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Criminal Defense Frequently Asked Questions

 
  1. If I am arrested or detained by police, or if police ask me to make a voluntary statement, to what extent should I cooperate with police?
  2. Should I waive (give up the right to have) my Preliminary Hearing? Should I go to my Preliminary Hearing without an attorney?
  3. Should I take a court reporter to the Preliminary Hearing?
  4. Should a Defendant testify or present witnesses at their own Preliminary Hearing?
  5. Can I have an existing criminal record expunged because it interferes with my career opportunities?
  6. Can a judge sentence me to ARD without the District Attorney's consent?
  7. Do I have any choice concerning which Judge will handle my case?
  8. Should I have a trial by Judge (a "waiver trial") or by (Judge and) Jury?
  9. If I am arrested with co-defendants, should I stay in contact with the co-defendants?
  10. Should I hire a defense attorney who is a former District Attorney or Federal Prosecutor?

If I am arrested or detained by police, or if police ask me to make a voluntary statement, to what extent should I cooperate with police?

 

Other than cooperating in chemical testing after being arrested for suspected Driving Under the Influence (DUI), I recommend that you politely refuse to discuss anything with the police other than your name, address, date of birth and social security number. When police advise you that, "anything that you say can and will be used against you," the so called Miranda Warnings, that is exactly what they mean. Your cooperation will be used against you.

My experience is that persons arrested or making voluntary statements to police almost always say much more than they should to the police and almost always later regret their cooperation.

Police may indicate that if you cooperate, they will "put in a good word for you." Most defendants are much better off saying nothing, neither offending nor helping the police and thereby preserving the confidentiality of any information or evidence which has not come to light. Police do not arrest persons to be their friend.

Also, if you are detained by police, ask if you are "under arrest". If the answer is "No", LEAVE.
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Should I waive (give up the right to have) my Preliminary Hearing? Should I go to my Preliminary Hearing without an attorney?
 

Except for ARD (Pennsylvania's pre-trial probation program for first offenders) eligible first time DUI offenders, the answer is no, you absolutely should not waive your Preliminary Hearing nor should you go without an attorney.

Your Preliminary Hearing is your best (and typically only) pre-trial opportunity to cross-examine the witnesses against you and assess their credibility, how they hold up to questioning, what they know and whether their testimony is likely to hurt you at trial. Without that opportunity it is usually impossible to accurately predict the outcome of a trial. It would be like predicting the outcome of a football game where you haven't seen the opposing team play.

Also, witnesses are not as rehearsed and well prepared at a Preliminary Hearing as they are likely to be at trial when they have discussed their testimony several times with law enforcement personnel. It is therefore typically very beneficial to transcribe the prosecution witnesses' testimony at the Preliminary Hearing before they polish it and coordinate it with other witnesses for trial.

The prosecution's case at a Preliminary Hearing is often presented by the arresting officer and not by a prosecutor. The police officer's typical lack of trial sophistication often presents defense opportunities to obtain admissions which will not be available later.

Most Defendants can not effectively cross-examine at a Preliminary Hearing. Between being nervous, inexperienced and unaware of rules of evidence and trial strategies, they have almost no opportunity to be effective. The art of cross-examination is as much that of stating a fact and challenging the witness to disagree as it is the art of asking appropriate questions. It is difficult to become effective at cross-examination without many, many practice opportunities.

Since Defendants are usually sentenced more harshly if convicted at trial than if they had pled guilty, Defendants should not stand trial without a well-founded belief that they will be found not guilty developed after the preliminary hearing.
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Should I take a court reporter to the Preliminary Hearing?
 

Absolutely yes. Without a court reporter, there will be no record of the admissions or contradictions obtained; no way to prove that anyone said what you know that you heard; no way to prove at trial that testimony has been changed substantially from what it was at the Preliminary Hearing; no way to contradict the prosecution witnesses at trial by their prior inconsistent testimony.

Also, in the event that the District Justice makes a bad decision at the Preliminary Hearing by binding over specific criminal charges which were not adequately supported at the Preliminary Hearing, the defense would be unable to obtain review of that decision (by filing a Motion for Habeus Corpus and to Quash the Criminal Complaint) without a transcript of the Preliminary Hearing as an exhibit to the Petition.
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Should a Defendant testify or present witnesses at their own Preliminary Hearing?
 

No. The Rules of Criminal Procedure do not permit testimony to have any beneficial effect on the outcome of the Preliminary Hearing. The District Justice is not permitted to believe any Defense testimony which contradicts the testimony of any prosecution witness. The testimony of all prosecution witnesses is accepted as absolutely true for purposes of the Preliminary Hearing no matter what the defense witnesses might say.

Defense testimony at a Preliminary Hearing can, however, haunt the defense later if it appears inconsistent with their testimony at trial.

So a Defendant can only hurt themselves by presenting testimony at a Preliminary Hearing ... they can not help themselves.
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Can I have an existing criminal record expunged because it interferes with my career opportunities?
 

Generally speaking, no as to convictions, but yes as to records of arrests which did not lead to convictions and yes as to "ARDs". The common belief that a conviction record can be expunged after many years of "not getting into trouble" is incorrect except for:

  1. Convictions of "underage drinking" after one reaches age 21 and;
  2. Defendants who reach age 70 and have not been arrested, prosecuted, imprisoned or supervised for ten years and;
  3. When the Defendant has been dead for three years (seriously ... this is found at Section 9122(b)(2)) of the Crimes Code).
  4. ARD arrests may not be expunged for certain sex crimes when the victim was under age eighteen (an ARD for sex crimes against juveniles is unlikely in any event), but otherwise ARDs may normally be expunged upon completion of the probationary period.
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Can a judge sentence me to ARD without the District Attorney's consent?
 

No. ARD (Accelerated Rehabilitative Disposition) is a criminal disposition involving fines, probation and/or other non-prison penalties (safe driving school, community service) available for many first time offenders as to non-violent offenses. The most common ARD is for a first offense of drunk driving. ARD is not considered a conviction and the charges are dismissed upon completion of the probation and the other terms. Consequently, as a non-conviction, the record of the arrest is subject to expungement.

ARD is entirely at the discretion of the County District Attorney. A District Attorney in one county can offer ARD for a category of crime where an adjacent county would not offer ARD.

A Judge can not sentence a Defendant to ARD without the District Attorney's consent. The District Attorney can withhold their consent for any reason or no reason such as the reason, "I'm tough on crime so re-elect me to office." The Judge can sentence to "Section 17" for certain drug offenses without the District Attorney's consent. Section 17 is quite similar to ARD, being fines and probation without conviction. It applies to only drug offenses.
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Do I have any choice concerning which Judge will handle my case?
  No. Although the difference between judges as to both the likelihood of conviction and the severity of sentence upon conviction can be quite significant, a Defendant has no choice in this regard. Typically, the Defense does not learn the identity of their trial judge until the day of trial. It is the luck of the draw.
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Should I have a trial by Judge (a "waiver trial") or by (Judge and) Jury?
 

Jury trials take much more time. Consequently, legal fees are typically higher. A trial that by Judge would take a few hours, by Jury may take a few days.

However, a Judge will convict if one person, the Judge, thinks you are guilty. A Jury will only convict if all twelve jurors conclude beyond a reasonable doubt that you are guilty.

Judges may become cynical as a result of their job. They may believe that they have been lied to so many times by so many people that they are unwilling to believe very much of anything. A Judge, in my opinion, will convict if they think that you are "probably guilty" while a Jury will only convict if they are satisfied that you are "guilty beyond a reasonable doubt."

It is quite a substantial difference. Your chances of being acquitted (found not guilty) are much better with a Jury than with a Judge (subject to variations among Judges and, less predictably, variations among Juries).

Usually, a Defendant is better served by a Jury trial than by a waiver trial.
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If I am arrested with co-defendants, should I stay in contact with the co-defendants?
 

Police and prosecutors often discourage co-defendants from having any contact with each other prior to trial.

In my opinion, if you get into trouble together with someone else, you should do your best to stay in communication with them so that you can get out of trouble with them.

The worst strategy for a co-defendant is to worry about whether other co-defendants are blaming them for something in exchange for sentencing leniency and thereby wondering whether they should blame somebody else in return. This often leads to co-defendants blaming each other and providing the prosecution with evidence which the prosecution would not have if each Defendant relied upon their right under the Fifth Amendment of the United States Constitution to refrain from incriminating themselves.

If you are arrested with one or more co-defendants, I recommend that all co-defendants meet jointly with one or more attorneys to determine whether it is in their best interests to present a common front or whether to have separate representation.

Notwithstanding the potential for a conflict of interest and the potential that the first attorney might be disqualified, I recommend that defendants who get into trouble together do their best to get out of trouble together.
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Should I hire a defense attorney who is a former District Attorney or Federal Prosecutor?
 

For an attorney, working as a prosecutor presents significant learning opportunities.

However, you may be uncomfortable hiring an attorney who would be just as willing to prosecute you as to defend you.
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The Law Offices of Marvin H. Gold and Travis Gold · 237 S. York Road · Hatboro, PA 19040 · 215-672-2458 · Fax: 215-672-9460