Criminal Law FAQ

Criminal Law / Criminal Law FAQs

PLEAS

Q: What does it mean to “enter a not guilty plea” in a criminal or traffic case?

A: A plea is a person’s formal response to a criminal or traffic charge. A person charged with a criminal or traffic offense is called the defendant. A defendant is typically called upon to enter a plea at arraignment, which is the person’s first appearance in court. The defendant can choose from the pleas of guilty, not guilty, not guilty by reason of insanity, and no contest. Entering a plea refers to the judge’s act of formally noting a defendant’s plea, or “entering” it, in the court’s official file.

Q: If I know I did it, is it lying to plead not guilty?

A: In the context of our legal system, it is not “dishonest” to enter a not guilty plea even when you know you committed an offense. By pleading not guilty, you are formally denying that you are guilty of each and every element of the offense charged against you. If you are charged with a criminal offense and you are innocent, this is the plea you would enter. But you must also see your denial of the charge through a not guilty plea in the broader context of the procedure in criminal cases. By pleading not guilty, you are asking the prosecutor to present evidence that establishes all the elements of the charge against you beyond a reasonable doubt. If you are charged with a crime, you have the right to hold the government to its obligation of proving beyond a reasonable doubt that you committed a crime. In other words, you can honestly plead not guilty because, in the eyes of the law, you are considered to be innocent until the government proves you guilty.

Q: What if, as a defendant, I want to admit I was at a crime location like the police say, but I don’t want to admit to doing anything wrong?

A: You would plead not guilty. For most practical purposes, pleas are an “all or nothing” proposition. If you do not want to admit wrongdoing, you should plead not guilty, even if some of the facts the government alleges are true. By entering any other plea, such as a “guilty” or “no contest” plea, you would, in effect, be admitting all of the facts the prosecutor would otherwise have to prove beyond a reasonable doubt.

Q: What happens after I enter a not guilty plea?

A: Typically, you would enter your plea at an arraignment, which is your first appearance in court made shortly after your arrest or after you received your summons (like a traffic citation). After you’ve entered a not guilty plea, the case will be “set over,” or scheduled, for further proceedings, such as a pretrial or a trial. Usually, at the arraignment, a judge or magistrate will set the terms for your release between the arraignment and trial, but this is not related to the plea. A bond may be required. Just because a case is set for a trial date, it does not mean that there has to be a trial.

Q: What happens if I decide I want to change my not guilty plea?

A: Generally, you may change your plea at any time before a judge enters a final judgment in the case. This often happens when the prosecutor offers you a plea bargain (through your attorney if you have one), in which the prosecutor agrees to reduce or dismiss charges or agrees to recommend a particular sentence if you change your “not guilty” plea to a guilty plea. Just because you pled not guilty at your arraignment does not mean you are locked into having a trial. You (or your lawyer) can negotiate with the prosecutor for some sort of plea bargain or other agreed resolution (such as a diversion program) right up to the day of the trial. Often there are pre-trial conferences scheduled by the court for just this purpose.

Q: Can I plead not guilty in a civil case like an eviction or small claims case?

A: No. There were once different pleas in all kinds of areas of law, but now pleas are only called for in criminal cases. If you’re a defendant in a civil suit, like an eviction or small claims case, your formal response to the complaint filed against you is called an “answer,” not a plea.

PLEA BARGAINS

Q: What is a plea bargain?

A: A plea is a person’s formal response to a criminal or traffic charge. A person charged with a criminal or traffic offense (the defendant) may be offered a plea “bargain” (or plea deal) in which the defendant agrees to plead guilty to a less serious offense or only some of the charges and, in exchange, the prosecutor is not required to conduct a full trial to prove the defendant guilty of the original charged offense.

Q: That doesn’t sound like justice; why doesn’t the prosecutor just do the trials?

A: Trials are both time-consuming and expensive. For the government to conduct a trial for even a relatively minor traffic offense can require a trial by jury, involving eight jurors and several witnesses. Such a trial can take a day or more to conduct, and the government must pay the jurors, the judge, the prosecutor and the police officers’ salaries or overtime. In 2008, 225,301 criminal misdemeanor and traffic cases were filed in the Franklin County Municipal Court alone. That court has 15 judges and about 30 prosecutors, and the prosecutors and judges handle civil cases as well. It would not be possible for the government to try all 237,061 cases in a year, so plea bargaining is one way to make sure violations of law are addressed, given the limited prosecutorial and judicial resources available.

Q: So how does a prosecutor decide what deal to offer, or whether to offer a deal at all?

A: A lot can go into that decision. One of the key questions is the quality of evidence available for trial. The defense attorney and the prosecutor will both know what evidence the state can introduce at trial to convince the jury that a defendant committed the offense charged. If the evidence is rock solid, the prosecutor may not offer a deal at all. If it appears the evidence might not be sufficient to convince a jury, the prosecutor may offer a plea bargain. Even if the prosecutor offers a good deal, the defense attorney may think the evidence is so weak that a jury would not convict. In such a situation, the defense attorney may advise the defendant not to take what, on the surface, looks like a good deal. Some other considerations that inform the prosecutor’s decision include the seriousness of the original offense, the penalty for the original offense compared to the penalty for the reduced offense, the likelihood that the defendant will offend again, and the availability of witnesses for trial.

Q: What about the reverse? If I’m a defendant, how do I decide if I’m getting a good deal?

A: Your attorney can help you decide whether a prosecutor’s plea offer is a good bargain for you. Often, plea bargains include a sentencing recommendation by the prosecutor. Often, but by no means always, the judge will accept the prosecutor’s recommendation. Therefore, as a rule, the plea decision is based upon balancing the likelihood of a conviction (and the likely resulting penalty) if there’s a trial against the known penalty associated with pleading to the reduced charge.

Q: What happens if I decide I don’t want to go through with a plea bargain after agreeing to it?

A: Generally, you may change your plea at any time before a judge enters a final judgment in the case. If you are thinking about entering a guilty plea, you should be aware that it is always extremely difficult (and often impossible) to “take back” a guilty plea once it’s been made and the judge has imposed a sentence. This is true even if you pled guilty according to a plea bargain and sentencing recommendation, and the judge imposes a penalty more severe than the one recommended by the prosecution (which is always a possibility).

NO CONTEST PLEAS

Q: What does it mean to plead “no contest” to a criminal or traffic offense?

A: A plea is a person’s formal response to a criminal or traffic charge. A person charged with a criminal or traffic offense is called the defendant. The defendant can choose from the pleas of guilty, not guilty, not guilty by reason of insanity, or no-contest. Entering a plea refers to the judge’s act of formally noting a defendant’s plea, or “entering” it, in the court’s official file. If you enter a no-contest plea, it means that, while you do not admit your guilt, you do admit the truth of the facts alleged in the indictment, information or complaint (the so-called “charging” documents that start a criminal or traffic case). No-contest pleas are sometimes know as “nolo contendere” or just “nolo” pleas.

Q: So what’s the difference between pleading guilty and pleading no contest?

A: Good question. Sometimes there’s no difference whatsoever and sometimes there’s a big difference. If you plead guilty, you are admitting to the facts and the legal consequences of those facts. The benefit of a no-contest plea (when you admit the facts, but not your guilt) is that it allows you to avoid a trial if your defense has become hopeless, but it prevents the plea from being used against you in any later civil or criminal proceeding. It also allows you the opportunity to appeal rulings by the court, such as rulings allowing certain evidence to be used by the government.

Q: Can you provide an example?

A: Let’s say Driver Dan rear-ends Driver Pete’s car. Rear-ending someone is a traffic violation known as “failure to maintain an Assured Clear Distance Ahead” (ACDA). Say State Trooper H. Abe comes to the scene to investigate and gives Dan a ticket for ACDA. In addition to the ticket, Pete sues Dan in small claims court to recover the cost of repairing the damage to his car that was caused by the accident. If Dan goes to court on the ticket and pleads guilty to the ACDA (because he knows Trooper Abe and the prosecutor have an open-and-shut case) then Pete can use that guilty plea against Dan in the small claims suit because, by pleading guilty, Dan is completely admitting to the facts and his own guilt. If Dan pleads no contest, though, Pete cannot use that as an admission by Dan in the small claims suit.

Q: Is pleading no-contest to a felony in Ohio the same as pleading no contest to a misdemeanor?

A: Not exactly. When a defendant enters a no-contest plea in a misdemeanor case, the prosecutor must explain the circumstances of the offense to the judge or magistrate. Based on that explanation, the judge or magistrate must find the defendant guilty or not guilty. As a practical matter, a no contest plea will almost always result in a “guilty” finding. This extra explanation by the prosecutor is not required in felony cases.

Q: Do I always have the option of pleading no contest?

A: Generally, you have a choice between pleading guilty and no contest. If you are offered a plea bargain, however, the prosecutor may insist that you plead guilty rather than no contest. In exchange for your change of plea, the prosecutor would recommend a reduced charge or penalty.

Q: If I plead no contest and give the judge a really good excuse, might the judge let me off?

A: The only way the judge would find you not guilty on your no-contest plea is if there is a mistake in the “charging” document (if, for example, it leaves out a critical part of the charge) or because the prosecutor’s recitation of facts (where required) doesn’t match up to the facts stated in the charging document. This is rare.

Q: How do I figure out if I should plead no-contest?

A: A lawyer can advise you about your particular situation and the impact of various pleas.

GUILTY PLEAS

Q: What does it mean to “enter a guilty plea” in a criminal or traffic case?

A: A plea is a person’s formal response to a criminal or traffic charge. A person charged with a criminal or traffic offense is called the defendant. The defendant can choose from the pleas of guilty, not guilty, not guilty by reason of insanity, or no contest. Entering a plea refers to the judge’s act of formally noting a defendant’s plea, or “entering” it, in the court’s official file. If you enter a guilty plea, it means that you admit you committed the violation, offense, or crime with which you’ve been charged.

Q: Why would you ever plead guilty to a charge?

A: If you have ever had a speeding ticket and paid a fine by mail instead of going to court, you have actually pled guilty to an offense. You may not have read all the fine print on the citation or realized you were entering a guilty plea by paying your ticket, but it is one example of how pleading guilty can be the easiest and least expensive way (in both time and money) to resolve a case. Sometimes pleading guilty to even very serious charges may be the least costly option. For example, you may be offered a plea bargain by the government, and in such a case, you would enter a guilty plea in exchange for a reduced charge or the prosecutor’s recommendation for a reduced penalty.

Q: What if I want to plead guilty, but I want to explain what really happened to the judge?

A: If you enter a guilty plea voluntarily, knowingly, and intelligently, then the judge will have no option but to find that you are guilty of having committed the offense. If you are thinking about entering a guilty plea, you should know that it is very difficult and often impossible to “take back” a guilty plea once you’ve made it and a sentence has been imposed. A guilty plea is sometimes referred to as a “complete admission” because it admits both the facts alleged by the government and the legal consequences of those facts. After the judge accepts your guilty plea, you do have an opportunity to address the judge before the judge decides what the punishment will be. Your explanation about the circumstances surrounding the offense may lessen the punishment a judge imposes. However, when you plead guilty to an offense and the judge accepts the plea, you will be found guilty, which means it is possible you will get the maximum penalty for that offense.

Q: Is there anything I should do before I plead guilty?

A: It is wise to talk with a lawyer before entering a guilty plea to any offense. Only a lawyer can fully explain the possible consequences of entering a guilty plea to a particular offense. Remember that, if you are charged with a criminal offense that carries the possibility of jail time, the court will appoint a lawyer to represent you without cost if you cannot afford a lawyer.

Q: What if I don’t want to talk with a lawyer before I plead guilty?

A: Before entering a guilty plea, you should know the answer to these questions: What is the maximum jail time and fine that can be imposed? What are the court costs I’ll have to pay? Do I have to pay restitution to the victim? How long do I have to pay the fine and court costs? Is the prosecutor making a sentencing recommendation and, if so, what is it? What is the mandatory minimum sentence for the offense I’m pleading guilty to? Will this offense be a “prior” for purposes of enhanced sentencing in future criminal or traffic cases? Is there a license suspension or are points associated with my being found guilty of this offense? Do I have to maintain any sort of special insurance or equipment as a result of my plea? Does pleading guilty affect my ability to qualify for government programs and/or student aid? Might I be put on probation or community control and, if so, for how long? What will the terms of probation be? Will I be required to register as a sex offender as a result of pleading guilty? Will I be unable to vote or restricted from possessing a firearm as a result of my guilty plea? There can be a staggering number of consequences associated with being convicted of a traffic or criminal offense. It is always wise to at least consult with an attorney before entering a guilty plea because the penalties vary considerably for different offenses.

NOT GUILTY PLEAS

Q: What does it mean to “enter a not guilty plea” in a criminal or traffic case?

Q: If I know I did it, is it lying to plead not guilty?

A: In the context of our legal system, it is not “dishonest” to enter a not guilty plea even when you know you committed an offense. By pleading not guilty, you are formally denying that you are guilty of each and every element of the offense charged against you. If you are charged with a criminal offense and you are innocent, this is the plea you would enter. But you must also see your denial of the charge through a not guilty plea in the broader context of the procedure in criminal cases By pleading not guilty, you are asking the prosecutor to present evidence that establishes all the elements of the charge against you beyond a reasonable doubt. If you are charged with a crime, you have the right to hold the government to its obligation of proving beyond a reasonable doubt that you committed a crime. In other words, you can honestly plead not guilty because, in the eyes of the law, you are considered to be innocent until the government proves you guilty.

Q: What if, as a defendant, I want to admit I was at a crime location like the police say, but I don’t want to admit to doing anything wrong?

Q: What happens after I enter a not guilty plea?

Q: What happens if I decide I want to change my not guilty plea?

Q: Can I plead not guilty in a civil case like an eviction or small claims case?

BAIL

Q: What is bail?

A: Bail is the release of an accused person before trial by the court on the promise that the person will appear in court on all scheduled dates. To secure the person’s promise to appear, the court may ask for a deposit of money or property and, in some cases, may impose certain restrictions on the accused person.

Bail is often thought of as money paid to the court for a pretrial release, but, in cases where there is no good reason to think the accused person is likely to miss a scheduled court date, there may be no money involved. In such a case, bail is “personal,” and the person is released “on his/her own recognizance” after signing a promise to appear in court.

When the court does order money or property to be paid for bail, there are several ways this may be handled. The accused person may provide a “cash bond,” a sum of money usually deposited with the clerk of court that is returned in full when the case is concluded.

However, the full amount of bail is often too much for an accused person to pay, especially on short notice. If the judge or magistrate finds it appropriate, the accused person may be allowed to post a “10 percent bond” with the clerk of court. The cost of the bond is 10 percent of the total bail amount ordered by the court. Assuming the accused person appears in court, most of the cost of the bond (usually 90 percent) is returned when the case is over.

Bail also may be secured with a property bond, where deeds to real estate are transferred to the court to hold while the case is going on.

In many cases, the accused person uses a “surety bond,” a type of insurance policy, to pay the bail amount. The surety bond fee is paid to a bail bondsman, who promises to cover the bail amount upon an accused person’s failure to appear.

Q: How does a surety bond work?

A: Bondsmen issue surety bonds. For a fee, a bondsman will write a bond for an individual to guarantee his or her appearance in court. A surety bond is a promise to pay if an accused person does not appear. Oftentimes bondsmen will ask for a lien to be placed on real estate (such as a home) to further protect the bond. Assuming the defendant appears in court at all scheduled times until the case is over, any property liens are removed. However, the fee is not returned.

Q: What happens when a person on bail fails to appear in court?

A: First, the court issues a warrant for the person’s arrest, and usually orders the bond forfeited at that time. If the bond is cash or property, the court keeps the cash or property. If the bond is a surety bond, the bondsman must pay the bond to the court. If a bondsman or bounty hunter is able to locate the defendant and bring him or her to court within a reasonable period of time, the court may return some of the money to the bondsman.

Q: How is the bail bond amount determined?

A: In felony cases (more serious cases) the amount of the bail bond is determined by a judge or magistrate. He or she will consider the seriousness of the offense, the strength of the evidence, the defendant’s ties to the community, prior criminal history, and history of appearance at court proceedings. The court also may consider factors such as the defendant’s medical or psychological condition.

In addition to setting a monetary bond, the court may issue reasonable conditions to ensure the accused person’s appearance in court, or to protect public safety. For instance, the court may order travel restrictions, or may require the accused person to reside at a certain address, or prohibit the accused person from contacting the victim. The court may, as a condition of bond, order an accused person to be treated for drug and/or alcohol addiction. Some courts have pre-trial supervised release programs where a defendant may be required to appear regularly to a probation officer or a supervisor while his or her case is pending.

In more minor matters, such as misdemeanors and traffic violations, the law provides a bond schedule where specific bonds are pre-set and can be posted by an accused person as soon as he or she is formally charged.

MIRANDA WARNINGS

People who watch police shows on television are familiar with the so-called “Miranda” warnings given to arrested suspects, but they may not realize that these warnings have not always been part of police practice. In 1966, the U.S. Supreme Court said, in essence, that, before interrogation can begin, a suspect must understand that he or she has certain constitutionally protected rights (listed below). This decision grew out of Miranda v. Arizona, a 1963 case challenging the conviction of Ernesto Miranda, who signed a confession following a two-hour interrogation without an attorney and without understanding his constitutional rights.

Q: I recently heard the U.S. Supreme Court had considered “overruling” the so-called “Miranda” warnings police give to suspects telling them about their Constitutional rights. Is that true?

A: Contrary to the predictions of many legal scholars, the U.S. Supreme Court reaffirmed its decision in Miranda v. Arizona in Dickerson v. United States. In this case, the Court recognized that “Miranda” warnings have become such a routine police practice that they have become part of our national culture.

Therefore, any statement given by a suspect during police questioning continues to depend on whether the police told the suspect that:

the suspect has the right to remain silent
anything the suspect says can be used against him or her in a court of law
the suspect has the right to the presence of an attorney and
if the suspect cannot afford an attorney, he or she has the right to consult with a court-appointed attorney before answering any questions
Recent rulings by the United States Supreme Court clarified the following:
1. Law enforcement officers “reading the Miranda rights” do not have to explicitly tell the suspect that a lawyer can be present for questioning, because the Miranda warning “in its totality” makes it clear enough that a suspect has the right to talk to a lawyer at any time during custody.
2. Law enforcement officers are not allowed to question a suspect in their custody who has previously asked for a lawyer to be present during custodial questioning; that prohibition remains in place for 14 days after the suspect is released from custody.

Q: Does a suspect have to be at the police station before being warned about Miranda rights?

A: Police officers are required to give suspects Miranda warnings only when the suspects are being formally arrested and questioned at the same time. At a “formal” arrest and questioning, a suspect is not free to leave, but is held in police custody, and questioning is done in such a way that a reasonable person would have no choice but to submit to the officer’s will.

Police do not have to give Miranda warnings to a suspect who is being questioned informally and is not in police custody. For example, Miranda warnings are not triggered in the following situations:

roadside questioning of a motorist following a routine traffic stop
a probationer’s responses to questions from his or her probation officer
information requested on tax or other government forms not obtained in the custodial setting

Q: If a suspect makes a statement that is not in answer to a direct question by police, is that suspect entitled to Miranda warnings?

A: According to the U.S. Supreme Court, “custodial interrogation” is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” In another case, the U.S. Supreme Court said that deciding whether a suspect has been “interrogated” depends upon whether the police have coerced or forced the suspect to speak.

However, police are not held accountable for “offhand remarks” that produce unexpected results. As long as the suspect isn’t interrogated or coerced into speaking by some other method, any statement the suspect makes will be considered voluntary, even if it’s an admission of guilt. Such a freely given statement can be used in court against the suspect.

Q: What if a suspect gives up (or waives) the Miranda rights, not realizing what he or she is doing?

A: A suspect who waives the Miranda rights must understand those rights and must not be forced into giving them up. To decide whether a suspect’s waiver of Miranda rights is valid, courts study the facts and circumstances of the case, including the suspect’s background, experience and conduct. Confessions that are not provided voluntarily by suspects cannot be used in court.

Q: If a suspect decides to start talking to police officers and then changes his or her mind, what must that suspect do or say in order to halt the interrogation?

A: A suspect must clearly declare that he or she no longer wishes to speak without an attorney present. Some courts have found that statements such as “maybe I should get a lawyer” are not usually enough to stop an interrogation. Nevertheless, most courts require that police officers must at least stop and clarify a suspect’s intentions when the suspect responds in this fashion.

It is always best to seek the advice of a qualified lawyer before being questioned by the police, regardless of your knowledge or involvement.

EXPERT WITNESSES

Q: Why do people use “expert” witnesses in court?

A: The purpose of a trial is to bring out the truth about the matter in question, so that justice can be done. To learn about the facts of a case, the judge or jury hears testimony from witnesses who have first-hand knowledge about those facts. For example, Mary can testify that John shot her with his pistol, or Steven can testify that the paper being passed from juror to juror is the receipt that his landlord gave him when he paid the rent. Where there is conflicting evidence about the facts, the judge or jury must decide which testimony is most likely to be true. In many cases, an expert witness will be able to provide evidence that helps the judge or jury make those decisions. For example, you know that a ballistics expert might testify that the bullet removed from Mary’s arm came from the gun owned by John, and that a handwriting expert might testify that the signature on Steven’s receipt was written by the landlord who denies signing it. The expert is allowed to give his or her informed opinion about disputed or unclear questions of fact, on subjects outside the life experience of ordinary judges or jurors, because he or she has specialized knowledge, skill, experience, training or education on that subject.

Q: What kinds of things can experts testify about?

A: Experts testify about a very wide range of subjects-many more than can be mentioned here. For example, if you are injured in a fall at work when you are trying to escape a fire, a doctor may testify as an expert that your persistent headaches are a direct result of that fall. If you are suing the manufacturer of the machine in which the fire began, an electrical engineer may testify as an expert that the fire was caused by a short-circuit, and may explain how the machine could have been designed to eliminate that risk. If you are sued for causing an automobile accident, a specially trained police investigator may testify, based on the skid marks and the damage to the vehicles, that the other driver was traveling much faster than he or she claims. If your mother has been damaged because of inadequate services rendered by her dentist, her auto mechanic or her Realtor, the trial will almost certainly include testimony from another dentist, auto mechanic or Realtor who can inform the judge and jury about the standard, accepted professional practices of such persons in your area. If your neighbors are getting a divorce, a laboratory technician might testify, based on blood testing, that in her opinion the husband is not the father of the youngest child, and an accountant might testify about the value of the family restaurant business and of other assets that the court will divide between the divorcing parties.

Q: If I ever have to go to court, how will I know whether I need an expert, or how to find one? Who pays for the expert?

A: Talk with your attorney about whether you need an expert witness to support your case. Experienced attorneys usually know or know of experts in the subject of your dispute who can study and evaluate your case and testify on your behalf, if necessary.

In some cases experts are paid by a public agency (the court or the prosecutor, for example), and if you are represented by a lawyer hired by your insurance company your insurer will pay for any necessary expert witnesses. However, in most cases you will be responsible for paying any expert who works on your case. Talk with your attorney about how much the expert will charge and when the expert will have to be paid. Some lawyers, in certain kinds of personal injury cases for example, will pay these expenses for you as they are incurred, with the understanding that you will reimburse them out of the proceeds of the lawsuit. Money is well spent on the services of an effective expert witness. In many cases that witness will provide evidence that is essential to proving your case, and even in cases where such testimony is not strictly necessary the expert may help the judge and jury understand your side of the case and therefore help persuade them of the justice of your cause.

GRAND JURIES

Q: How does a grand jury operate?

A: In carrying out its two functions of reviewing criminal charges which have been brought by police and prosecutors and conducting investigations of possible criminal behavior, the grand jury meets in secret, behind closed doors. Its proceedings are usually one-sided, and are very different from a trial. Unlike a public trial, the accused person is not present (unless he or she is called as a witness), nor is his/her counsel present (even if he is called as a witness). Also, witnesses are not cross-examined. Not even a judge is present in the grand jury room, although a judge will be contacted if a witness refuses to answer a question and the prosecutor wishes to cite the witness for contempt.

The prosecutor presents the state’s case by asking the witness questions. The grand jurors also may ask questions, but neither the actual eyewitness to an alleged crime nor the alleged victim of that crime need to appear as witnesses. The rules that apply in court to exclude most hearsay evidence (evidence provided by someone who did not actually witness the crime) do not apply in the grand jury room. Therefore, a police officer may simply testify as to what eye-witnesses and alleged victims have said.

Further, information obtained by illegal police investigation, unconstitutional surveillance, or by unreliable means, can be heard and relied upon by grand jurors, even though that information would not be admissible if the case proceeded to trial. Finally, even if a prosecutor knows of information which would help show that the accused person is innocent, he is not required to present it to the grand jury. So, while two sides are presented in a trial, it may be that only one side will be presented in a grand jury proceeding.

Grand jury proceedings usually remain secret, unless a witness chooses to disclose what happened in the grand jury room while he/she was testifying. Conclusions made by a grand jury are made known by what it does: a grand jury issues a bill of indictment if it finds probable cause to believe both that a crime has been committed and that the accused person is responsible, or a “no-bill” if it does not find probable cause. The grand jury also may issue a report at the conclusion of its term, in which its members may make recommendations about improving the justice system.

Q: What does it mean when someone is “indicted”?

A: Just because someone is indicted does not mean he or she is guilty of any crime. As described above, the grand jury process is simply a means of charging someone with a crime, and the grand jury’s decisions are based merely on probable cause. The grand jury’s decisions are not held to the much higher standard of proof beyond a reasonable doubt that must apply to convict a person at a trial. Further, the nature of the evidence the grand jury may rely on is quite different, and little if any defense information is presented. One can expect, therefore, that the grand jury will charge many more people than will be convicted. That is its function–to initiate and, to a limited extent, screen cases to determine which should go forward.

Q: What happens if a person is indicted?

A: An indicted person will enter a plea to the charges. If a person proceeds to trial, he or she is presumed innocent. It will then be the trial judge or jury, a different body, which will decide whether or not to convict. That decision will be made only after all of the lawfully admitted evidence from both sides has been heard and it is determined that the accused person is guilty beyond a reasonable doubt.

JURY INSTRUCTIONS

After a jury is selected, the judge will swear the jurors in, and the jurors will take an oath to abide by the judge’s instructions throughout the case. The judge will instruct the jury at several points in the case.

Q: When will the judge first instruct the jury?

A: A judge often provides the jury with preliminary or opening instructions before counsel’s opening statements are made and any witnesses are called. These preliminary instructions will tell the jury how they are to approach the evidence and explain their responsibilities as jurors. Commonly, the judge will instruct the jurors about how to conduct themselves during the course of the trial and about how the trial will progress. The judge also will instruct the jurors that they are to decide the case only on the evidence lawfully presented in the courtroom and must not conduct their own investigation, experiments, or research into the facts or law, that they must follow the law contained in the judge’s instructions, and that they must wait until all the evidence has been presented and the case is submitted to them for their group deliberation before they determine guilt or innocence.

Q: What instructions might the judge provide to the jury during the course of the trial?

A: As the trial progresses, the judge may further instruct the jury regarding its consideration of certain testimony. For instance, if the judge concludes certain testimony should not be admitted into evidence, the judge will instruct the jurors to disregard that evidence they may have heard. (Attorneys do try to anticipate before trial what matters should or should not be admitted at trial by filing pretrial motions and asking the judge to rule on points of evidence before the trial begins. There are times, however, when a judge may decline to rule on the matter before trial. Also, a matter may be addressed in testimony that was not anticipated by the parties or the court, and the judge must rule on the matter during the trial.)

Courts generally will assume that jurors will follow a judge’s instructions to disregard evidence. However, there are times when a matter may be so prejudicial to a party that a court cannot reasonably expect or trust that a jury will follow instructions to disregard the evidence. In those situations, a party may ask the judge to declare a mistrial, to dismiss the case and let it start again before a new jury. The judge and the parties will approach with great care the question of whether the jury can be expected to follow a judge’s instructions about disregarding matters they have heard. If the judge finds there is a “manifest necessity” to declare a mistrial, then a new trial will be ordered. But if the judge grants a mistrial when it was not manifestly necessary to do that, the new trial may be barred on the basis of the defendant’s constitutional right to be free from being tried twice for the same crime (double jeopardy).

Q: What kind of instruction does the jury receive when all the evidence is in?

A: When all the evidence has been presented, the case will be submitted to the jury for its determination of guilt or innocence. Before the jury deliberates, the judge will give final instructions to the jury. These instructions include reminding jurors that the prosecutor must prove, beyond a reasonable doubt, each and every element of the crimes the defendant is charged with committing. The judge will define these elements and the meaning of the “proof beyond a reasonable doubt” standard. The judge will also identify and define any defenses that arise from the evidence submitted, any lesser offenses that may also be charged against the defendant, and the order and method of deliberations.

Jurors will be told that they should listen to one another’s views and try to reach agreement on the case, and that, in order to convict the defendant of any offense, their verdict must be unanimous. They will also be told how to complete the verdict forms. The judge will again emphasize that the jurors must: decide the case solely on the evidence lawfully admitted in the courtroom; deliberate on the facts and the law without sympathy, bias, or prejudice to either side; and respect one another’s views so that a thorough discussion of the facts and the law will occur and a reliable judgment will be reached.

SEARCH WARRANTS

Q: What is a search warrant?

A: The word “warrant” literally means an authorization or order. In the legal world, the warrant usually comes from a court. For example, a “search warrant” is an order from a court authorizing a government agent to search for something. The Fourth Amendment to the United States Constitution prohibits government agents from making “unreasonable searches” of people, their homes, their papers, and their effects. The general rule is that a search conducted by a government agent without a search warrant is unreasonable, and therefore a violation of the Constitution. This general rule has many exceptions.

Q: Why are there exceptions if the rule is in the Constitution?

A: The Constitution does not prohibit all searches; it says the government is not allowed to conduct unreasonable searches. The law provides that judges generally decide whether a proposed search would be reasonable, but the law also recognizes that it might sometimes be “reasonable” for a government agent to conduct a search without first obtaining a warrant from a judge. For example, in an emergency situation where police are searching for a missing child, it would probably be reasonable for police officers to search places where the child might be found without obtaining a warrant for each place the officers need to look. Another common exception to the warrant requirement is a search that happens when a person is arrested. Courts have found that it is reasonable to search an arrested person without a warrant to make sure he or she has no weapons that might be used to resist the arrest or make an escape. The courts have also found several other types of searches without a warrant to be reasonable, such as items in plain view of a police officer, outdoor areas surrounding a home, information on a workplace computer, immigration checkpoints, and roadblocks to search for escaping criminals.

Q: How does a judge decide whether a search is reasonable?

A: The U.S. Constitution provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This means that, before a judge will issue a search warrant, a government agent must testify under oath to the judge about what evidence the officer has to justify conducting the search, specifically what the officer is searching for, and where the officer thinks it will be found. Before the judge will issue the warrant, the officer’s testimony must be sufficient to convince a “prudent person” that evidence of a crime or illegal items would likely be found in the search.

Q: If the government has to get a warrant before searching, why was my child’s high school locker searched without a warrant?

A: The direct answer is because there is no “reasonable expectation of privacy” that your child’s locker is private. While it is true that police officers, public school employees, tax agents, the dogcatcher, and any other government employee must get a warrant for a search (unless an exception applies), the Constitution protects against unreasonable searches of people, their homes, their papers, and their effects. In other words, the Constitution limits where searches are prohibited. You have a reasonable expectation of privacy in your home, and an expectation not to be stopped and searched as you go about your day. But there are places where we cannot reasonably expect privacy. For example, public schools almost always tell students—in writing—that the school maintains ownership and control of the lockers; since students don’t have a reasonable expectation of privacy, the warrant requirement doesn’t apply.

Q: Why don’t officials need a warrant to search me and my bags at the airport?

A: Sometimes you give your consent to be searched by your actions. For example, it is reasonable to search airline passengers for the safety of all those who are flying, so a condition of your getting on the plane is your “consent” upon entering an airport to be searched before you board a plane. Airports, courthouses, and other government buildings are all examples of places where your entry into the facility is conditioned upon your consenting to be searched.

COMMON PLEAS JUDGES

Q: What happens in a common pleas court?

A: Ohio’s courts of common pleas are trial courts, and there is one common pleas court for each of Ohio’s 88 counties. Although occasionally common pleas courts review decisions of arbitrators or administrative agencies, the vast majority of their work is in trying and settling cases.

Q: What kinds of cases do common pleas courts hear?

A: Each Common Pleas court has a number of divisions to hear various types of cases. The general division handles a wide variety of civil and criminal matters. The domestic relations division generally handles issues involving legal separation and divorce, including child support and custody matters that arise in context of the divorce or separation. The probate division handles matters involving wills, adoptions, guardianships and civil commitments of the mentally ill. The juvenile court handles matters of child neglect, dependency, delinquency, and matters involving custody and child support where the parents are not married.

Q: How many judges does each common pleas court have?

A: Each county court has a different number of common pleas judges, depending upon that county’s population. In some counties, one judge handles all the divisions. In other counties, a single judge may handle two or more divisions, and in the most populous counties, many judges share the workload of a single division. Judges in Ohio handle personal dockets, that is, when a new case is filed, it is assigned to a particular judge to be handled by him or her from beginning to end.

Q: What kind of workload do Ohio common pleas judges have?

A: In 2004, approximately 645,000 new cases were filed in Ohio’s courts of common pleas, and 380 common pleas judges worked to resolve them.

Q: How are common pleas judges chosen, and what qualifications must they have?

A: Common pleas judges are elected to six-year terms. To qualify for election or appointment to the bench, they must have been lawyers for at least six years.

Q: What do common pleas court judges spend their time doing?

A: Most of the work of a common pleas judge revolves around settling cases, that is, working with lawyers and litigants to achieve a compromise solution to the problem that brought them to court. In a criminal case, this settlement process is called plea bargaining. In a small percentage of cases, the parties cannot or will not compromise, and the case must be tried.

Q: Do all common pleas court trials have juries?

A: No. Trials can be held either to a jury or to a judge. In a felony criminal case, the defendant automatically gets a jury of 12 persons, and all 12 must agree to a verdict of guilty or not guilty. If a criminal defendant does not want a jury trial, and would rather have a judge determine the facts of the case, he or she must waive his jury right both in writing, and in open court. In a civil case however, a litigant is not automatically entitled to a jury. Rather, he or she must take the initiative to request a jury in writing. If a civil case is tried to a jury, eight jurors are chosen, and, in order to reach a verdict, at least six of the eight must agree.

Q: If the trial is decided by a jury, what does the judge do?

A: While juries decide disputed questions of fact, judges decide disputed issues of law. The judge must make sure the parties on both sides of the case follow proper trial procedure. The judge also must tell the jury about the law that applies to the case and explain how the jurors are to apply that law to the facts.

Q: What does a judge do if there is no jury?

A: When a judge sits without a jury, he or she decides the facts of the case as well as the law that applies to them.

Q: What if I think an error was made in my case?

A: You have the right to appeal to the district court of appeals that handles the county in which your case was tried.

OBSTRUCTION OF JUSTICE

Q: What does it mean to “obstruct justice”?

A: Generally, any act that is intended to interfere with the administration of justice may constitute obstruction of justice. There are many different kinds of obstruction of justice that are covered by different statutes. For example, separate federal statutes cover obstruction of court orders, obstruction of criminal investigations, obstruction of state and local law enforcement of gambling statutes, and tampering with or retaliating against witnesses, victims and informants.

Q: What sorts of acts may constitute obstruction of justice?

A: Obstruction may consist of any attempt to hinder the discovery, apprehension, conviction or punishment of anyone who has committed a crime. The acts by which justice is obstructed may include bribery, murder, intimidation, and the use of physical force against witnesses, law enforcement officers or court officials. The purpose may be to influence, delay or prevent the communication of information to law enforcement officers; to influence, delay or prevent court testimony; to alter or destroy evidence; or to evade a subpoena or similar court process.

Q: Does obstruction always involve bribery or physical force?

A: No. One particularly murky category of obstruction is the use of “misleading conduct” toward another person for the purpose of obstructing justice. “Misleading conduct” may consist of deliberate lies or “material omissions” (leaving out facts which are crucial to a case). It may also include knowingly submitting or inviting a judge or jury to rely on false or misleading physical evidence, such as documents, maps, photographs or other objects. Any other “trick, scheme, or device with intent to mislead” may constitute a “misleading conduct” form of obstruction.

Q: How has the “misleading conduct” category of obstruction been used?

A: The definition of “misleading conduct” is so general that it can be used to fit many different situations. For instance, Whitewater Independent Counsel Kenneth Starr attempted to apply the obstruction statutes very broadly in his investigation of former President Clinton. Mr. Starr argued that Mr. Clinton committed obstruction of justice by denying to friends and subordinates that he engaged in intimate contact with Monica Lewinsky. According to Starr, this constituted “misleading conduct” obstruction because Mr. Clinton expected that his denials would be repeated to the grand jury that was investigating the relationship. Mr. Starr also prosecuted Susan McDougal for obstruction because she refused to testify before the grand jury about Mr. and Mrs. Clinton’s investment in the Whitewater real estate project (McDougal was acquitted). And Mr. Starr unsuccessfully prosecuted Julie Hiatt Steele for obstructing the Lewinsky investigation by claiming that she lied to a grand jury about what and when former White House volunteer Kathleen Willey had told her concerning an alleged sexual advance by Mr. Clinton.

Q: Must a court case be pending for obstruction to occur?

A: No. An official proceeding need not be pending or about to be instituted at the time of the offense. This was illustrated in the Martha Stewart case; her alleged obstruction occurred very early in the investigation. Furthermore, she ended up not being charged with the underlying crime that was being investigated.

Q: What is the penalty for obstruction?

A: Generally, obstruction of justice is punishable by up to five years in prison. If the obstructions occurs in connection with the trial of a federal criminal case, the defendant may be sentenced to either 5 years in prison, or the maximum sentence that could be imposed in the trial in which the obstruction occurred, whichever is greater. For example, if the obstruction occurs in connection with a drug trafficking case carrying a maximum penalty of 20 years in prison, the person who obstructed justice might receive 20 years in prison for obstructing justice. If the person who obstructed justice was also the defendant in the drug trafficking case, the obstruction sentence might be added to the drug trafficking sentence, for a maximum possible sentence of 40 years in prison.

“Castle Laws” Change Self-Defense Rights

Ohio’s passage of Senate Bill 184 on September 9, 2008, marked numerous changes to the state’s self-defense laws and concealed carry laws by adding provisions known as “castle laws,” which have also been enacted in more than 20 other states.

Ohio law previously required the victim of a home invasion to retreat before using deadly force against the intruder; a person who used deadly force in such a situation had to prove in court that he or she acted out of fear of serious physical injury or death.

Ohio’s self-defense laws now give homeowners more rights to protect themselves. In addition, the S.B. 184 has loosened restrictions on concealed handgun license holders regarding carrying and renewal requirements.

Q: If someone enters my home illegally, and I shoot her in self-defense, does S.B. 184 protect me from being arrested for protecting myself and my family?

A: Generally, yes. These “castle laws” presume you have acted in self defense or in defense of another when using deadly force against someone who has unlawfully entered your residence or vehicle. If you were to be charged, the prosecution would have to prove that the intruder did not enter your house or vehicle with the intent of causing harm.

S.B. 184 also bars criminal offenders from recovering damages for injuries they receive from their victims while engaged in criminal conduct. You can now defend yourself in your home without worrying that your attacker will be able to recover for injuries incurred during the intrusion.

Q: Are there any other S.B. 184 provisions that might affect me?

A: Yes. This bill also has made several modifications to the 2004 concealed carry law. With the proper license for a concealed weapon, you may now carry a loaded handgun in an unlocked (assuming it is closed) glove box or center console. The penalty for failing to notify a law enforcement officer that you have a concealed handgun license has been reduced to a minor misdemeanor.

Previously, you could not carry a concealed weapon into any room where liquor was dispensed. Current law allows you to carry a concealed weapon on premises where liquor is sold, as long as you do not take it into any room where liquor is being consumed.

Further, only certain government buildings designated in the law are off limits for “concealed carry,” and you may now carry a concealed weapon into a building that is used primarily as a shelter, restroom, parking facility, or rest facility.

The law also decriminalizes carrying a concealed weapon in a school safety zone while immediately in the process of picking up or dropping off children at school, so long as the licensed holder of the weapon remains in the vehicle.

Q: How has S.B. 184 changed the rules for renewing my concealed handgun license (CHL)?

A: You are no longer required to bring a color photograph or resubmit your finger prints when you renew. While prior law required that you renew your license at least 30 days before it expired, the new law says that you may renew your license any time before it expires, as long as you don’t try to renew earlier than 90 days before expiration. Further, if you have had a criminal conviction in the past that has been sealed or expunged, it cannot be used to deny you a CHL.

Q: Can my landlord keep me from having a gun if I have a CHL?

A: No. Landlords can no longer restrict or deny tenants who have a CHL, or guests of tenants who have a CHL while the tenant is present, to keep and bear arms on the rented premises. Also, a homeowner is not required to have a CHL to lawfully carry a concealed weapon in his or her home.

Q: What does S.B. 184 say about keeping an unloaded gun in a vehicle?

A: Senate Bill 184 changed the definition of “unloaded firearm” as it pertains to vehicles. Now for the gun to be considered unloaded, it may not have ammunition in it, nor can ammunition be loaded into a magazine or speed loader anywhere in the car.