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Q.
What are my rights, if I'm arrested?
A. Most of your rights emanate from the New York State Constitution
and the Bill of Rights - the first ten amendments to the Federal
Constitution - and the courts' interpretation of those rights.
Initially, before the police can interrogate you, you are entitled
to receive a "Miranda warning," that you have the right to remain
silent, that anything you say may be used against you in a court
of law, and that you have the right to an attorney, and if you
cannot afford one the state will appoint one, free of charge.
You also have a Fourth Amendment right against "unreasonable
searches and seizures." What that means, basically, is that
the police must have a search warrant before any search can
be conducted unless it is part and parcel of an arrest. If the
matter proceeds to trial, under the Sixth Amendment you have
a right to be tried by a jury, and a right to confront all witnesses
who may testify against you. You also have a Fifth Amendment
right against self-incrimination. The Fifth Amendment guarantees
your right to remain silent, and you cannot be forced to take
the witness stand to testify if it would tend to incriminate
yourself. Finally, you are presumed to be innocent until proven
guilty "beyond a reasonable doubt." The arrested defendant should
be guided accordingly, but, above all, should make immediate
contact with a lawyer before making any statements or taking
any independent action in order to avoid a waiver or any constitutionally
guaranteed rights.
Q. How does a Grand Jury operate?
A. The Grand Jury consists of not less that 16 nor more than
23 individuals who sit to hear and examine evidence of criminal
conduct. After it has heard the evidence, it may return an indictment,
direct the prosecutor to file an "information" (charging a non-felony),
or refuse to return a "true bill" (dismiss the charges). You
are not entitled to have an attorney in the Grand Jury room,
but may leave during the questioning to consult with your attorney.
Subject to some very important exceptions, any witness testifying
in a Grand Jury proceeding automatically receives immunity from
prosecution.
Q. When a judge sets bail, what standards
are used?
A. The judge will consider your character, reputation, financial
resources, family ties, length of residence in the community,
criminal record, your previous history of responding to court
appearances, and several other factors, but the bottom line
determination is the probability of your returning to court
rather than fleeing the jurisdiction.
Q. What's the difference between a felony
and a misdemeanor?
A. That depends upon the punishment provided by the statute
covering the particular crime. If, for example, the statute
provides for imprisonment in excess of one year, the crime for
which that punishment is prescribed is considered a felony.
A misdemeanor is a crime for which a sentence to a term of imprisonment
in excess of one year cannot be imposed.
Q. What's the single most important
"right" for me to know about if I'm arrested?
A. That you are entitled to be represented by a lawyer at every
stage of the proceeding. Call us immediately.
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