"What should I do if ..."?

What should I do if I learn that I am under investigation for a criminal charge?

What should I do if police want to talk to me?

What should I do if police ask my consent to search?

What should I do if I get arrested?

What should I do if I'm released from jail without a court date?

What should I do if a witness asks me what to say?

What should I do if I have evidence in my possession?

What should I do if I miss a court date?

What should I do if I think I have a warrant?

"How does the system work"?

How does court work?

How do I get out of custody?

How long will my case take?

What is "Discovery"?

Can my lawyer talk to the witnesses?

What is a "trial" and how does it work?

What's the difference between a felony and a misdemeanor?

How does sentencing work?

How do I appeal a bad result?

How can I clear my record after this is over?


What should I do if I learn that I am under investigation for a criminal charge?

If you learn that you are being investigated for some kind of criminal activity, you need to act fast. It's possible to avoid a criminal prosecution under certain circumstances. Crime victims can't file criminal charges against you, they are just witnesses who can call police and report alleged crimes. Police can't file charges against you, either. They may interrogate you, search you, and even arrest you, but they don't file charges; ultimately police have to refer the case to a prosecutor for the prosecutor's decision whether or not to file charges against you in court. So these are several points at which your lawyer can intervene to potentially prevent a life-altering prosecution from happening.

If the victim hasn't yet called police, your lawyer can talk to the victim and try to find a workable resolution to protect you. This is an extremely dangerous thing for you to do because of laws against witness tampering (a felony), so don't think that you can just call the victim and "work it out". Don't do this! I have represented people who have tried that and wound up getting charged with additional felonies for witness tampering. Let your lawyer handle it legally.

If police are already involved then you should under no circumstances interact with them (see my advice on talking to police). Your lawyer should talk to police immediately for a number of reasons. First, he can find out police intentions. When I am retained at this stage I make contact with police right away and ask what they're planning to do. They will usually tell me if they're still investigating the case, if they're waiting for documents or witnesses, or if they're still waiting to decide whether or not to refer the case to a prosecutor. Second, I can often make arrangements with police to avoid a surprising visit at work or at home for an arrest. A peaceful surrender, or even a no-jail, or "administrative", booking can be arranged in certain cases. Third, it's possible to persuade them not to refer the case to prosecutors at all. Although this is rare and should be considered a low probability event, it's virtually always worth trying simply because of the huge advantage of avoiding criminal prosecution when it does work.

Finally, if the case has been referred to prosecutors for filing, your lawyer can contact the prosecutor and start a dialog with them in hopes of influencing their charging decision. A complete package can be presented to the prosecutor including a detailed letter from the attorney setting forth possible defenses, technical case flaws, mitigating circumstances, polygraph or DNA results, and other critical evidence. Again, the probability of avoiding charges at this stage is never high, but it is virtually always worth trying. Don't let anyone tell you that "Nothing can be done till you are charged". That's just not true. [Return to Question]


What should I do if police want to talk to me?

This one is EASY. In all the years that I have been practicing, I have not once seen a situation in which it was to your advantage to talk to police without counsel present. There's a reason that you have a right to remain silent and a right to have an attorney present.

Police will often try and get you to talk to them by assuring you that "things will go better for you", or they'll "put in a good word for you". Think for a moment about the value of these "promises" and what exactly you're getting in exchange for giving up your Constitutional rights. Nothing. Police either have evidence against you or they do not. In most cases if they have evidence they're going to go after you, whether you cooperate or not. They're not going to "give you a break" simply because you admit what you did. The reality is that if police want to talk to you, it's often because they don't have enough evidence to have you charged, and so they want YOU to make it easier for them to avoid having to go out and actually investigate. Don't convict yourself by thinking that you're a smart negotiator who can outsmart these professional interrogators. Stay away from police. As soon as they start asking you questions, tell them "I want my lawyer present". Do not ask them if you should have a lawyer, don't ask to talk to your parents or spouse, don't ask if it's "necessary" to have a lawyer; just state clearly "I want my lawyer present".

If you say anything at all to police, they will then be able to distort what you say and put damaging admissions into their reports. I can't tell you how many times my clients have looked at police reports and said to me "I never said that"! Don't give them the opportunity to do this to you. You have a right to remain silent. Use it.

If you've already made statements to police, don't feel bad, you've done what most people do. I've represented cops and lawyers who should all know better and even they talk to police, getting themselves into trouble in the process. There are sometimes things we can do to keep these statements out, but in general it's best to avoid the problem in the first place by not speaking. If you've already spoken, stop and don't give any more statements. [Return to Question]


What should I do if police ask my consent to search?

Anytime police have to ask for your permission to do something, it's because they don't have the right to do it in the first place. Don't make their job any easier. If they ask you if it's ok to come into the house, or if it's ok to search your car or your purse, you may politely decline. Do not resist if they insist on doing what they want, and certainly if they show you a warrant, but if they ask you for your permission to search anything, calmly and politely make clear that you decline the request and do not consent. They may use words like "I'm just going to look in your bag here if it's ok", or "Mind if I step in and have a look around"? Whatever words they use, politely decline and make clear that you do not consent.

You have a Constitutional right to be free from unreasonable searches. The penalty for violating that right is that any evidence seized by police in this manner must be suppressed. Your lawyer accomplishes this by filing a Motion to Suppress (in Washington, it's called a "3.6 Motion", in California this is called a "1538.5b Motion"). When evidence is suppressed, the case is often dismissed completely because there is no longer any evidence available for prosecution. If you have consented to a search, you've given up your rights and your lawyer will not be able to file the Motion to Suppress. Don't throw away these opportunities, never consent to a search. [Return to Question]


What should I do if I get arrested?

First, do not resist. Although you have a right to resist an unlawful arrest, you are usually in no position to determine whether the arrest is lawful or not. Don't take the chance of getting charged with the additional crime of Resisting Arrest. Comply with all police commands, be polite and quiet, and make NO STATEMENTS to police. Ask in a calm and polite manner to have your lawyer present as soon as possible.

Second, as soon as you have the opportunity to make a phone call, call your lawyer first. If you don't have one, ask police to let you speak to a public defender (they are usually on duty at all hours). Don't waste your phone call calling someone who isn't home.

You can usually make arrangements to get bailed out by calling a Bail Bondsman. Be forewarned: they will charge you a non-refundable 10% fee of the bail amount. So if your bail is $100,000, you will have to pay the bondsman $10,000. In many cases a lawyer will be able to either reduce the amount of bail or persuade a judge to release you on your own Personal Recognizance (a PR release). Depending on your finances and patience, you may want to wait till you're brought before a judge so that you can have a lawyer argue for your release. In most cases you'll be brought before a judge on the next business day after your arrest (which is bad news if you're arrested Friday night). [Return to Question]


What should I do if I'm released from jail without a court date?

Usually, if you've been given a court date you will receive paperwork at the time of your release with the information on which court to go to and the date and time of the appearance. If you don't have this information and you Bailed out, check with the bail bondsman, they will know when you're due in court. If you were released by the court and told that "you may still be charged later", make sure that the court has the proper address and check your mail like a hawk, because if you miss a court summons that comes in the mail, a bench warrant may be issued for your arrest.

A lawyer can check available resources to determine if you have a court date pending. If you ever have a question about a pending court date, call your lawyer and get the facts. If you miss a court appearance after promising to appear, you could wind up not only with a bench warrant for your arrest, but it's possible you could wind up with the new charge of Bail Jumping. I've represented people who missed court appearances for a crime they didn't commit, and then, when they went to trial and were found Not Guilty of the original crime, were still convicted of Bail Jumping for missing a court appearance they shouldn't have had to make in the first place! Don't let his happen to you; treat all your court appearances with extreme care. [Return to Question]


What should I do if a witness asks me what to say?

Don't try to tell a witness what to say. The witness has an obligation to tell the truth, and any attempt to induce the witness either to withhold their testimony or to "disappear" from the jurisdiction can amount to Witness Tampering, a felony. I know of a case where a defendant called the alleged victim and left a simple voicemail stating "let's see if we can work this out without the need to go to court". The defendant was convicted of Witness Tampering and got a year in jail. It doesn't matter if the witness approached you or you approached them. Don't take the chance, stay away from witnesses and let your lawyer talk to them. [Return to Question]


What should I do if I have evidence in my possession?

If you have reason to know that police are looking for evidence in a case and you have it in your possession, you need to be very careful. It is a crime to dispose of evidence, and it is extremely unwise to try and turn it over to police on your own. It may also be a big mistake dropping it off at your lawyer's office. Most lawyers don't want to be put in that position, it could compromise the lawyer's ability to represent you. The first thing you should do when you learn that you have evidence in your possession is tell your lawyer about it confidentially. This scenario often arises after a search warrant has been executed by police who are looking for an object that you know they've missed. Don't give it to them, don't tell them, don't bring it to your lawyer's office. Tell your lawyer in confidence and let the lawyer decide how to deal with it. [Return to Question]


What should I do if I miss a court date?

If you know you're going to be late, call your lawyer, not the court. If you've already missed the date you'll probably have an outstanding bench warrant for your arrest. It's possible to get the warrant quashed with the help of a lawyer. Otherwise you're at risk of being pulled over for a traffic violation and going to jail as a result. Don't let this happen, be vigilant about making court appearances. Get there early and bring a book. Anytime you go to court it's likely that you'll be doing a lot of waiting around.

You can be charged with additional crimes for failing to appear in court. Even missing one appearance can result in a new criminal charge called "Bail Jumping", even if you beat the charge that brought you into court in the first place! Don't let that happen to you, consult with a lawyer as soon as you can after missing a court date. [Return to Question]


What should I do if I think I have a warrant?

Call a lawyer and try to lay low. If you do have a warrant and are stopped by police, you can be jailed on the spot. Your lawyer can tap online resources to find out if you have any warrants

In most cases the warrant can be quashed or otherwise mitigated by your lawyer, so calling a lawyer will always be the first step to take in this process. [Return to Question]


How does court work?

In order to have a case in court, a prosecutor must file charges against you. Typically, the police refer the case to prosecutors, who then review the reports and decide whether or not to charge you, and what to charge you with. You will then either be notified by mail (this is called a court summons) or a warrant will be issued for your arrest.

Your first appearance is typically an Arraignment. This is a simple hearing where you are informed of the charges filed against you, and given a written copy of the document charging you. In courts of limited jurisdiction (District and Municipal Courts), the charging document is called a "Complaint" and it specifies a misdemeanor violation. In Superior Court, the charging document is called an "Information" and it charges you with a felony. Your lawyer will typically waive formal reading of the document so that the court doesn't have to read it out loud in front of the entire courtroom.

At the Arraignment, you are asked if you are the person named in the charging document. Typically you will answer "Yes" and that is the ONLY thing that you will be expected to say at the hearing. In virtually every case your lawyer will then enter an initial plea of "Not Guilty", even if it is your ultimate intention to plead Guilty. This Not Guilty plea is the starting point for all of the court processes that follow. Note that in Superior Court your personal appearance is required at the Arraignment. For misdemeanors in District or Municipal Court, an attorney can waive your appearance and appear for you, except in DUI or Domestic Violence cases, where your personal appearance is required.

Another item of business typically taken up at Arraignment is the conditions of your release pending trial. Typically the prosecutor will recommend to the court that you be released on some amount of bail, or your own personal recognizance (PR), without having to post bail. Your attorney has an opportunity to argue for reducing the bail or asking for a PR release, but he has only one chance to make the bail motion, so he should be prepared at Arraignment to do so. Sometimes it will be more advantageous to postpone the bail hearing until your lawyer has more information, and in that case your lawyer should "reserve bail". The court will then leave whatever previous release conditions were in place until a scheduled bail hearing.

Finally, the court at Arraignment will set the date of the next court appearance. The next appearance is usually some kind of "pretrial conference" or "case setting conference", depending on the jurisdiction, but it's almost always the first opportunity for your lawyer to discuss with the prosecutor what's going to happen with the case (i.e., will there be a settlement or will it go to trial). Sometimes nothing happens at a pretrial hearing other than the lawyers confirming that they still have more documents and evidence to exchange, and then continuing the case to another pretrial hearing date. This is quite common in criminal cases and you should expect a number of these pretrial court appearances before you are scheduled to have an actual "trial". Don't assume that nothing is happening when your lawyer continues your case to another court date. There's a lot going on behind the scenes, and most of these pretrial court hearings are just "checkpoints" provided by the court to give the lawyers an opportunity to confirm the progress of the case. It usually takes several pretrial hearings before the case is ready to be resolved through plea negotiations or trial.

In Superior Court, there will be one final court appearance before the trial, called an "Omnibus Hearing". This is the final checkpoint before trial and is an opportunity for the prosecutor and defense lawyer to confirm readiness for trial.

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How do I get out of custody?

When the judge sets your conditions of release, it will usually be in the form of "Bail" or a "PR" release. A PR release means that no bail is required and you are released on your "personal recognizance" and promise to appear. If the court isn't willing to give you a PR release, they will usually set bail in some amount. You then have the option of posting the amount of cash required, or arranging to have a bail bondsman post it for you. The bail money is kept by the court as an assurance that you will return to court. If you fail to return to court on an assigned court date, your bail may be forfeited, meaning that the court keeps the money and a bench warrant is issued for your arrest. If a bail bondsman puts up the money and you fail to appear, he loses his money and has the right to track you down and arrest you and haul you back into court to get his money back. In order to perform this service of posting bail on your behalf, the bail bondsmen will charge you 10% of the bail amount as a separate and non-refundable fee. So if your bail is $10,000, he will charge you $1,000 in cash and will then put up the $10,000 with the court.

It's usually a good idea to hire a lawyer before you put up bail because the lawyer will have an opportunity to argue for a lowered bail or PR release, possibly saving you the cost of bail at the time of arrest. The downside is that you'll have to wait until your case is called in court and the lawyer is present. Bail bondsmen, on the other hand, are available 24 hours a day and located near the courthouse. The bail bondsman will typically want collateral (like a mortgage or other property) before agreeing to post bail.

There are other alternatives to bail. A court could order you to be released on Electronic Home Detention (EHD), or "house arrest". A tracking ankle bracelet is placed on you and a landline telephone is required at the residence where you're going to stay. Compared to a PR release it's quite limiting, but compared to jail it's a huge improvement. One major advantage of EHD over PR release is that the time spend in EHD is credited as time served in jail in the event you are later sentenced to jail time. [Return to Question]


How long will my case take?

Every case is unique, but you should always expect that it will take months to resolve any case. In some complex felony cases it's not unusual to have the case pending for over a year or more. Misdemeanor cases in District and Municipal courts will proceed more rapidly but even then you should expect at least a couple of months or more. Your lawyer will be busy in the early part of your case gathering evidence and reviewing documents, before being able to engage in any meaningful negotiations with the government.

Even if you intend to plead guilty and get a plea bargain, it's important to allow your attorney enough time to convince the prosecutor that he is serious about fighting your case. Prosecutors don't like going to trial, and if your lawyer appears to be preparing for trial, you will sometimes get a better bargain from a prosecutor who wants to avoid having to go to trial. If your lawyer walks into court on day one and asks for a deal, the prosecutor may sense that there's not much of a fight ahead and will be less inclined to give a good offer. Trial is the primary negotiating chip in your lawyer's pocket. Let him get the full value of that chip by giving him the time to persuade the prosecutor that he's serious.

In most cases the warrant can be quashed or otherwise mitigated by your lawyer, so calling a lawyer will always be the first step to take in this process. [Return to Question]


What is "Discovery"?

This is a term you'll hear often. It is used as both a verb and a noun. Discovery is the word used to describe the material required to be turned over to the other side (when used as a noun). Both the prosecutor and the defense are required to turn over materials to each other to avoid surprise at trial, and this process is called "Discovery" (when used as a verb).

There are significant and dramatic consequences that can follow from a failure to turn over discovery. Prosecutors who have hidden discovery from defense lawyers have been sanctioned in court, had their cases dismissed, and, in extreme cases, been disbarred and even criminally prosecuted. Your lawyer should monitor the evidence carefully to make sure that the government has turned over everything they are required to. [Return to Question]


Can my lawyer talk to the witnesses?

Your lawyer is not only able to talk to them, he *should* talk to them. Every witness the state expects to call at trial should be interviewed in advance of trial in order to give your attorney the opportunity to know exactly what the witness is going to say. The witness interview should be recorded verbatim by a digital recording device or a court reporter. Having a full transcript of everything the witness has said is a huge advantage that should never be overlooked.

Many lawyers send investigators out to interview witnesses. This is Ok and less expensive than having your lawyer do the interview, but not optimal. Only your lawyer knows all the legal requirements of your case and is in the best position to take a witness interview in a useful direction once the witness starts talking. Even the best investigators will rarely match a good lawyer's skill at witness interviewing.

You should never talk to witnesses without your lawyer's knowledge and prior consent. There is always the danger that anything you say to a witness could be construed as "Witness Tampering", a felony offense. Let your lawyer do the talking to the witnesses.

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What is a "trial" and how does it work?

Many clients think that their next court appearance is their "trial", and then are surprised to learn that it's just a "pretrial hearing". Pretrial hearings are common and frequent and there will usually be several before any actual "trial" takes place. In criminal cases, a "trial" is usually in front of a jury (it's rare that you will ever want to trust a single judge with your fate, as opposed to a full jury).

A jury trial starts with the lawyers and judge setting aside some time to go over pretrial motions. These are called "in limine" motions and are requests to the court to set the rules for the trial. What evidence comes in, what evidence stays out, which witnesses can testify, which cannot, that sort of thing. Once the judge has heard all the in limine motions, the parties then begin jury selection. It's not entirely accurate to think of it as "jury selection", because you don't really get to "select" who's on your jury. A large group of potential jurors will be summoned into the courtroom at random based on driving and voter registration records, starting with the jury box and then filling up the rest of the courtroom. The judge and lawyers then take turns asking the potential jurors questions. This process is called "voir dire" and it's the only chance your lawyer will have to speak conversationally with all the potential jurors. If it appears during questioning that a particular juror is not capable of serving, the juror may be excused "for cause" by the court. After all sides have had their chance to talk to the jurors, and all the jurors "for cause" have been excused, the prosecutor and defense then take turn exercising "peremptory" challenges, which is the act of excusing a juror without having to provide any reason. Each side has a limited number of peremptory challenges. So it's more accurate to say that you can eliminate those you don't want on your jury, even if you can't choose who stays.

After both sides have exhausted their peremptory challenges, the jurors remaining in the jury box are sworn in as the jury. In long trials, "alternate" jurors are often selected as well. When jury selection is complete, the prosecutor then is required to make an Opening Statement. This is the government's summary of what the evidence is going to show at trial. The prosecutor will make the defendant look very bad and tell a very slanted story of what he intends to prove. He will then ask the jury to vote guilty after they've heard all the evidence, and then he'll sit down. At that point the defense has the option of either making an Opening Statement of their own, or waiting until they present their evidence to make an Opening Statement. It's rarely a good idea to reserve the Opening and almost always better to make the Opening Statement at that point, giving you the opportunity to present your view of the evidence before the jury hears *any* evidence. In this way, your lawyer can set the tone of the trial and the language of the case before any evidence comes in. It's a huge opportunity that should rarely be passed up.

After Openings have concluded, the prosecutor begins presenting witnesses. After he is through asking questions of the witness, the defense is allowed to "cross examine". The defense has wide latitude to cross on any topic the witness testified to, and to ask "leading" questions (which are not permitted during the witness's initial direct questioning). Each witness proceeds in this fashion until the prosecutor rests his case. At that point, the defense will usually make what are called "halftime motions", based on any failures of the government's case. After the judge has ruled on halftime motions, the defense begins its case. The defendant has no burden to produce any evidence and is not required to call any witnesses, but in most trials there will be some defense witnesses. The same routine is followed with direct questioning by the defense lawyer, followed by cross examination by the prosecutor.

Once both sides have rested, the judge then instructs the jury on the law. The instructions are not given from memory, every single word is written down and agreed upon by the lawyers and the judge before they are presented to the jury. Instructions are critical, as the jury is likely to give them a tremendous amount of weight during their deliberations. More cases are reversed on appeal based on instructional error than anything else.

After instructions have been read to the jury, the prosecutor then has the opportunity to make his closing argument. He's entitled to argue any reasonable inferences from the evidence, but he is strictly prohibited from adding any personal opinions or beliefs. Any improper personal comments during the prosecutor's closing argument may be grounds for later reversal of a conviction. The defense then has the opportunity to provide a closing argument. This is where the case is summed up and all the evidence is tied together to bring home the main points at trial. This is often where cases are won or lost. After the defense lawyer is finished with his closing argument, he sits down and the prosecutor has the opportunity to make one last rebuttal argument. Since the prosecutor has a very high burden requiring him to prove his case "beyond any reasonable doubt", he is given the first word and the last. The defense cannot respond to this rebuttal argument.

Once the prosecutor finishes his rebuttal argument, the case goes to the jury for their decision. In order to reach a verdict, the jury *must* be unanimous. That means that all of them must agree that the defendant is guilty in order to convict, and all of them must agree that he is Not Guilty in order to acquit. Anything less than unanimous results in a "hung" jury, causing a mistrial. The government can re-try a case after a mistrial based on a hung jury, and the defendant can appeal after a verdict of guilty, but the government cannot appeal a verdict of Not Guilty. [Return to Question]


What's the difference between a felony and a misdemeanor?

Crimes in Washington are classified into two broad groups: misdemeanors and felonies. Traffic offenses like speeding or stop sign violations are called "infractions" and are not considered criminal offenses. A misdemeanor is either a simple misdemeanor or a gross misdemeanor. The maximum penalty for a simple misdemeanor is 90 days in jail and a $1,000 fine. The maximum penalty for a gross misdemeanor is one year in jail and a $5,000 fine.

Felonies are classified as Class A, Class B and Class C. Class C felonies are the lesser felonies (e.g., theft) and Class A the most serious (e.g., murder). Penalties vary widely, but the maximum sentence for a Class A felony is life imprisonment.

The more important difference is that a felony conviction will change your life in significant ways. You will lose your right to vote, to own or possess a firearm, to be on a jury, and to hold public office. You will be excluded from many job opportunities on this basis alone. You do NOT want a felony conviction if it can be avoided and in many cases it will be one of your primary objectives in resolving your case. [Return to Question]


How does Sentencing work?

Sentencing for felonies in Washington State is complex and a full understanding requires an in-depth discussion with your lawyer.

Misdemeanor sentencing is simple and straightforward and mostly a function of the defendant's past criminal history and the nature of the offense. Few first time offenders will go to jail, although some form of community service may be imposed in addition to fines. Some offenses, like DUI, have "mandatory minimum" jail times prescribed by law, requiring the judge to impose at least the minimum time.

Felonies are a very different matter. In years past, judges sentenced felons almost entirely subjectively, after which a parole board would decide if the defendant could be released early. That system led to many abuses and it was found that people of color and people of financial means, for example, were getting widely disparate sentences for the same crimes. During the 1980's a major sentencing revolution took place across the nation and most states (and the federal government) adopted a new system that abolished parole boards and established what has become known as the "determinate" sentence system. Under this system, a "sentencing grid" is used to determine what sentence an individual should receive. Along the top axis of the grid is the Offender Score and along the side axis is the Seriousness level of the offense. To determine a given sentence, a judge finds the column corresponding to the defendant's Offender score (which is based on his criminal history) and then finds the row corresponding to the Seriousness level of the offense. This exercise produces a box within the grid that contains the sentence for that offense. The sentence is usually expressed in a range of months (24-36 months, for example), giving the judge some discretion in the application of the sentence to the particular facts of the case. In some cases the judge can go below or above the presumptive range in the box (called an "exceptional sentence") but exceptional sentences are rare and most judges won't leave the comfort zone of the presumptive range.

Most felony sentences are followed by a period of "community custody" where the defendant is out on a form of "probation" while being monitored by a Community Corrections Officer (CCO).

There are statutory alternatives to jail time, including "Community Restitution" (also known as "community service hours") and Work and Education Release (WER, where a defendant is allowed to go to work or school during the day and then return to custody in the evening and weekends). There are several other specialized sentencing alternatives to confinement, too many to recount here; these should be discussed with your lawyer. [Return to Question]


How do I appeal a bad result?

The defendant can appeal a finding of guilt after most convictions. Appeals in criminal cases are rarely successful (on the order of 10%) and are based on errors of law. The appellate court will not determine if the jury was "right" or "wrong", and you will not succeed on an appeal simply because you don't like the result. Appeals are only granted where a legal error was committed during the process. Examples of a legal error: the prosecutor engages in misconduct during final argument, or the judge reads an improper instruction to the jury. The appellate court will typically not consider changing whatever facts were determined by the fact finder at trial (usually the jury), they will accept these facts as proven and look only for errors of law. The law guarantees you a fair trial with all due process, but it does not guarantee you what facts will be proven and the appellate court will not typically disturb any findings of fact. The best way to avoid having to appeal, of course, is to avoid a conviction in the first place.

Not all criminal trial lawyers handle criminal appeals. Appellate law is a focus of appellate lawyers who may or may not also do trial work. Don't be surprised if your trial lawyer refers you to another lawyer to handle your appeal. It doesn't mean he doesn't have hope or want you to win, it may simply mean that he wants you in the hands of someone with that distinct type of expertise. If you plan to appeal, make *sure* that your trial lawyer files a Notice of Appeal with the trial court within 30 days of the date of your sentencing. If the appeal is not filed within that 30 days, an appellate lawyer may be barred from filing an appeal on your behalf. [Return to Question]


How can I clear my record after this is over?

When I first started practicing law, anyone who wanted to check a person's criminal background had to go down to the courthouse and physically look up some records. In those days, getting a record cleared had a real, demonstrable effect. Those days are gone and we live now in a post-privacy world where it is impossible to erase history. That said, there are procedures available pursuant to statutes that give you the right to "expunge" or "vacate" some of the information from public view. These statutes give you the right in some cases to state that you were never convicted. Don't expect law enforcement agencies to destroy their records, they are rarely ever required to do so and will always keep some information that is not available to the general public.

The problem with record clearances is that they are usually only directed at official record keeping agencies (like law enforcement or court staff) and don't adequately address the most common scenario, i.e., the private Internet-based background search firm. Here's a scenario that is happening more and more often: Employee fills out a job application and answers "No" (as he is legally entitled to do) to the question asking if he has ever been convicted of a crime. Employer hires a background search firm that confirms that "yes, he has no criminal record, but let me tell you what he did in 2004 ...". The employer is disappointed that his applicant lied on the application, the employee never gets the job and never learns why.

Record clearances can be helpful in certain contexts, but can also provide illusory benefits. For a full discussion of this procedure, talk to your attorney and ask what risks you are likely to face. [Return to Question]