Many people who are charged with a crime have the same questions when they are trying to find a criminal defense lawyer. Below are answers to some of the most frequently asked questions (FAQs).
If you are charged with a crime and your question is not listed here, contact Criminal Defense Attorney Howard Bailey at 973-982-1200 to arrange a free consultation.
In New Jersey, it is not as simple as ‘posting bail’ to get someone out of jail. The process under the ‘Bail Reform Act’ requires that when someone is arrested on a Complaint Warrant, that they and the case facts against them be reviewed on an objective basis (rather than on a subjective personal basis) to determine whether the Prosecutor wants to ask for continued detention. If that happens, the client is held in custody for several days and their case is reviewed in a ‘Detention Hearing’, where a Superior Court Judge decides whether they are a risk of committing another offense. Some types of crimes are considered ‘acts of violence’ and that fact alone can result in continued detention. The fact that your son is a good son and needed to help take care of the family is not part of what the Prosecutor will consider. It can however be presented to the Judge at the Detention Hearing by your son’s lawyer. This is a time where you need to consult with an experienced criminal defense lawyer to learn what the process will be, before it happens and to understand what is most likely going to happen. Call me for a free consultation.
When the police are called to the scene of your domestic dispute in New Jersey, it is not just a ‘family squabble’ that they are responding to, but from the police point of view they are responding to a potential domestic violence scene. Once they arrive, if what they observe, see or hear establishes a reason to believe that ‘domestic violence’ has occurred, they are required (it is not optional) by the Domestic Violence Act for the police to arrest the person responsible. They are not allowed to simply tell him to leave. Once that person is arrested, they will be processed and detained until the Judge decides whether to detain them or release them – and what conditions of release to impose, such as NO CONTACT with the victim. Even if you wanted to see him, or have him come home, so long as the case is open the only person who can change the conditions of release is the Judge. Any violation of the ‘No Contact’ will result in a separate Criminal Contempt of Court charge which can result in a separate sentence of up to 18 months in prison, even if the original charges filed by the police are later dismissed. Before you make any decisions on how these DV charges should be addressed, get advice on what will happen and what can be done to mitigate the charges and any consequences. Call me for a free consultation.
There are several ways for a criminal charge to be filed against you in New Jersey, and they do not all require that you to be physically arrested by the police. First: If the police see you commit the crime, they can arrest you and charge you with the offenses. If you are charged on an ‘Complaint Summons’ you will be processed and released with a Court date to appear before the Judge. If you are charged on a ‘Complaint Warrant’ you will be processed and placed into the jail until your Court date. Second: If the police conduct an investigation, or if someone else files a police complaint, you can be charged even if you are not present. The charges will be placed on either a ‘Complaint Summons’ and you will be notified to appear at the police station where you will be processed and released until your Court date; or, on a ‘Complaint Warrant’ and when the police locate you, you’ll be taken into custody to be processed and then placed in the jail until your Court date. Third: in some cases, a written notice of the complaint is sent to the individual, and even though they were never personally served with the notice, the charges are filed and start going through the court process. This can occur when the person charged has no residence on file, or the address is outdated because they moved with no known forwarding address. Regardless of how the charges were filed, the issue of whether you were physically ‘arrested’ or not, has no impact on whether the State can prosecute you. Once you know that charges have been filed, it is incumbent on you to surrender yourself to the authority of the Court, or risk a Summons being converted into a Warrant. Call me for a free consultation to discuss the issues and options you are facing.
In New Jersey, when the police start the conversation with ‘We are not going to arrest you…’, it means that you should be invoking your constitutional right to remain silent, by saying I WANT TO REMAIN SILENT. If they are saying ‘we’re not going to arrest you’ you are not a mere witness; you are someone they think is involved with the criminal offense they are investigating; or, the target of their investigation. If you had something to do with what happened, what is the benefit you are getting for speaking with the police and helping them build the case against you? As a general rule, I do not let my client talk to the police, unless they really are a ‘mere witness’ with no involvement with what the police are investigating; or, if they are involved, there is some clear benefit that I can only get for the client by them talking with the police. It is important to remember that anything you say, can be used against you. It is also important to remember that the police are investigating a crime, and that if they think you are involved, they can say ‘come on down’, and when you get there and you are done telling them what you did, they can arrest you. Again, what is the clear benefit a client gets for talking to the police…and until I know that, I do not recommend you giving up your right to remain silent. This is one of those times where ‘self-help’ is not a good idea, and before you talk to the cops you should consult directly with an experienced criminal defense lawyer. This is an issue that you need to discuss with a lawyer BEFORE you make a statement. Call me for a free consultation.
‘Tell us what happened, and we’ll make sure that the Judge knows ‘your side’ of what happened…you want the Judge to know ‘your side’ of what happened, right?’ Sounds good, doesn’t it? Unfortunately, in New Jersey criminal cases, some things are too good to be true. The most important thing you can and should say, is I WANT A LAWYER! By asserting your constitutional right to counsel, you make sure that the cops have to stop asking you questions…which is critical to you not saying something that they end up using without giving you any benefit for cooperating with them. The problem with you ‘helping’ the police is that the police cannot cut a deal! Only a prosecutor can cut a deal, and that is something your lawyer needs to work out with the prosecutor BEFORE you tell the cops what you know. When you are charged with a crime, it is based on the facts of what occurred, and the language of the statute. If the facts fit statute A, the cops cannot charge you with statute B, without approval from the prosecutor. In other words, the cops cannot cut a deal and charge you with a lower offense without the prosecutor agreeing to it. Otherwise, the ‘deal’ the cops told you about will be rejected by the prosecutor and cannot be enforced by your lawyer. Instead of the deal you thought you were going to get for cooperating, you get charged with statute A, the original offense you were already facing. Call me for a free consultation.
In New Jersey, many criminal offenses are filed on a ‘Complaint Summons’, and after you are processed on the complaint you will be released with a Court date to appear before the Judge. It is common for the police to file less serious offenses on a Summons, such as when you are not being charged with a violent crime like Murder, Kidnapping, Sex Assault, Arson and similar types of offenses; or, if you have no other criminal offenses pending against you. This a benefit that you can lose if you do not go in to be processed on the Summons after you are requested to come in, as your failure to appear will result in the charges being re-filed on a Complaint Warrant, after which the police will come looking for you. If this happens, once you are arrested and processed on the Warrant, you will be placed in the Jail to be held until you appear before the Judge. When you do see the Judge, you and your case will be reviewed under the ‘Bail Reform Act’ factors and a determination made whether to keep you in detention or release you. This risk of detention is one that you do not need to take, and it is a risk that does nothing to help in the defense of the charges. If you are being charged with a crime, discuss the issues of the case and your options BEFORE you surrender to the police with an experienced criminal defense lawyer. Call me for a free consultation.
How much ‘evidence’ the police need to charge someone can be confusing, as there are different levels of proof needed at different times in the criminal case process. The standard of proof to charge a client with a criminal offense in New Jersey is ‘probable cause’, and only requires that the State have ‘reason to believe’ that a criminal act was committed, and ‘reason to believe’ that the client was involved. This is the lowest level of proof in law, a very low standard especially when compared with the very high burden of ‘proof beyond a reasonable doubt’ that the State must establish to convict someone at trial. In addition, the police can rely upon all types of evidence, such as statements, photos and videos, and admissions by you if you do not exercise your right to remain silent, to support any other piece of evidence. If there is truly ‘No Proof’ at all, the criminal charges will be dismissed by the Court. Unfortunately, while there may be no direct proof, such as a personal observation of the defendant at the scene, other types of evidence, such as circumstantial evidence can be used by the police and prosecutor to support the filing of the criminal complaint. It is also important to understand that while the police may not have fully developed the case proofs to the point of ‘proof beyond a reasonable doubt’ at the time the charge is filed, they do not need to have that level of proof at the time the complaint is filed and that level of proof will not be needed to be proved until the case is actually presented to the jury at trial. If you or someone you love are being investigated by the police or charged with a crime, call me for a free consultation.
If what you said to the police was the truth, there are very limited circumstances in a New Jersey criminal case where you (regardless of whether you were either the victim or just a witness) have the right to refuse to give testimony. In many cases, what you said to the officers can be used as evidence by the State, even if you do not testify. In addition, you can be required to testify about anything that the person who is now charged said to you. There is no Mom/Son or Brother/Sister privilege against you being compelled to give testimony. If the State wants your testimony bad enough, they can ask the Court to declare you a ‘Material Witness’ and have you compelled to testify. If you still refuse the Order of the Court to testify, the Judge can hold you in Contempt of Court and incarcerate you. One of the few times you can refuse to testify is if what you said was not the truth. If this has occurred, you need to discuss your options with a criminal defense lawyer BEFORE you admit to the police that you lied, because you can be charged with a crime for filing a false police report and lying to the police. There is a specific way that this defense to testifying needs to be asserted in Court, and the validity of the defense and the assertion of your constitutional rights not to be a witness against yourself must be properly raised to the Judge to provide you with the constitutional protection against compelled testimony. If you are thinking about refusing to testify after giving a statement, you need to discuss this with an experienced criminal defense lawyer to understand what you will be facing. Call me for a free consultation.
The question is what benefit are you going to get from you giving up your Constitutional Rights? You have the right to remain silent, but if you give up that right, anything you say can (and will) be used against you to try to convict you. Telling the cops ‘what really happened’ will almost certainly NOT get you released, or the charges dismissed. What you telling the cops ‘your version’ of what happened will do, is add to the factual basis that the police will then incorporate into the evidence that they will use to support the charges filed against you. Even if your facts do undercut the State’s version, they do not have to accept what you say as being accurate and you just gave the police a reason to try to bolster their ‘facts’ on that issue. The amount of evidence needed to support the police charging you with a crime is called ‘probable cause’ (as in there is a reason to believe that a crime was committed and that you were involved). If you tell them something that is different from what they already believe happened, that does not mean that the charges against you get dropped, or that you get released. In addition, you do not know all of the ‘evidence’ that they believe supports the police theory of the case. Inadvertently, without intending to, you may actually say something that helps them and hurts you. The old phrase, ‘It is better to keep your mouth shut and be thought a fool, than to open your mouth and remove all doubt’ applies when you are the target of a criminal charge. Wait for your lawyer to advise you of any benefit to you giving up your constitutional rights before saying ‘what really happened’. If you do not have a lawyer, call me for a free consultation.
The question the New Jersey Court is facing is not who owns the house, but whether she lived there. A TRO (and also a Final Restraining Order if one is issued by the Court) seeks to provide the ‘protected person’ with a safe place where you cannot go. Therefore, you are prohibited by the TRO/FRO from going where she lives and works. While you will be permitted to return to get clothing and personal care items so long as you are accompanied by the police, you cannot do anything that will alter the residence without approval from the Judge. You can be ordered to pay the rent, mortgage and household bills until the Judge decides whether to make the protections permanent in an FRO. If you do anything to impact the use of the residence or work site of the protected person, you will be charged with criminal contempt of Court and can be locked up on that contempt charge alone. Even if the TRO is dismissed, the criminal contempt of Court will still be prosecuted and you can be sentenced up to 18-months in prison for violating the conditions imposed by the Judge.
There are often two types of Court filings in a New Jersey Domestic Violence case. The first is a civil proceeding called a Restraining Order; and the other, is a criminal complaint which is filed to process criminal charges related to the same events. In the civil RO case, the plaintiff can request that the Court dismiss the charges, because the case is a civil matter, and the plaintiff has the right to ask the Court to dismiss the case. In the criminal case, the State of New Jersey is the plaintiff, not you as the victim. While you as the victim can request that the criminal case be dismissed, you do not have the final say in whether the criminal charges are prosecuted or dismissed, the prosecutor has the final say. Where both a RO and criminal charges are filed for the same case, the fact that you as the victim dismissed the RO has no impact on the criminal charges.
There are several VERY important issues that need to be kept in mind when this occurs. First, unless the calls are specifically listed in the FRO as a type of communication that is allowed (for example when there are child visitation schedules to be confirmed), DO NOT ANSWER THE CALLS! If there is supposed to be ‘no contact’, you are the one violating the Order of the Court by answering or returning the call and you are the one who will be charged with Contempt of Court. Second, you must maintain a list of all of the attempts to contact you, to include all attempted phone calls; all emails; and, all times they come to your house or where you work. If these events occur and you can show that this was a type of harassment of you, a Court can consider it as a basis to Reconsider the granting of the FRO. This is not a Do-It-Yourself type of project. Immediately consult with you attorney to see how this impacts the basis that the Court relied upon when the FRO was issued against you.