Q: What is the Fourth Amendment and how does it help me?
The Fourth Amendment has graced more dismissal orders than any other Amendment. We as Americans are very lucky to have its protection, for we are the only country in the world where if evidence is seized in violation of its beautiful prose, the evidence is dismissed, suppressed, and done away with. Gone. The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures by law enforcement officers. The Fourth Amendment of the United States Constitution provides: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.” Article I, section 10, of the Minnesota Constitution is nearly identical to the Fourth Amendment, but the Minnesota Supreme Court has, at times, afforded individuals greater protection against unlawful searches and seizures under the Minnesota Constitution than that available under the Federal Constitution. Protection of the home is at the core of the Fourth Amendment, but protection also applies to persons, papers, and effects
Q: When can the police search my car?
Police can search your car whenever they make up a reason to believe you are committing a crime. To be honest, this depends on what kind of car you drive, your race, and what neighborhood you live in. Unfortunately, some police officers engage in racial profiling, and will manufacture reasons to search a car when no valid reason exists. Much like lawyers, one bad apple can ruin the entire lot. Whether the search is legal, however, is another question. The general rule is that police may only search a vehicle without a warrant if they have probable cause to believe that a crime has been committed and believe that there is evidence of a crime in the vehicle. Because this is a highly litigated area of criminal law (https://www.house.leg.state.mn.us/hrd/pubs/ss/clss4th.htm), it is best to consult a criminal defense attorney when your vehicle has been subject to police search. Never give police permission to search your car. The whole, “well if you don’t have anything to hide, why don’t you let me search it” comment is a trick of the trade. Don’t fall for it.
Q: I’ve heard of Miranda, but what exactly is it?
“Miranda” has become part of our everyday vocabulary, mainly from police or courtroom television shows and movies. The Miranda warning is what you probably already know or have heard: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can’t afford one, one will be provided to you.” Miranda comes from the case Miranda v. Arizona, 384 U.S. 436, decided by the United States Supreme Court in 1966. Miranda protects you from being a witness against yourself (self-incrimination). If you confess to a crime or answer questions that the government can use to prove you committed a crime, these statements are likely admissible into evidence at trial. Miranda tells you that you have a right to not answer questions. Miranda also tells you that you have the right to have an attorney with you if you choose to answer questions. This way, you are protected from making a statement that might harm you in court. Miranda, however, need not always be read to you. In order for Miranda to kick in, you must be in a certain situation. First, the person questioning you must (usually) be law enforcement: a police officer, FBI agent, etc. A friend cooperating with the government, wearing a wire, asking you questions probably does not need to read you Miranda before you start a conversation. Second, you must be in an interrogation. If you walk up to an officer and confess to a crime without him asking you a question, you probably cannot challenge your confession on Miranda grounds. Third, you must be in custody. This means that standing on the street corner, unhandcuffed and free to leave at any time, with an officer is probably not custody. Minnesota courts have spent a lot of time figuring out what constitutes law enforcement, interrogation, and custody. Each situation is dealt with on a case-by-case basis. Your case may be different than Joe Smith’s and so what the court decided for Joe Smith may not apply to your case. Oftentimes, these decisions turn on tiny details that may seem insignificant to most people, but could help win you the case—what was said, when, where, how, etc.
Q: The police never read me my Miranda rights. Can my case be dismissed?
The honest answer: Probably not. Due to popular television shows, most people think that the failure of the police officer to read you your Miranda rights results in the dismissal of your case. Nope. You are only entitled to Miranda if you are in custody and are about to be interrogated (questioned). The term “in custody” has various meanings, however. You are certainly in custody when you are in jail. However, I once convinced a judge to suppress statements and field sobriety tests because my client was not read his Miranda rights prior to being questioned outside on his front lawn by an officer with his gun drawn. Case over.
Q: What are the levels of offenses in Minnesota?
There are four basic levels of offenses: petty misdemeanor, misdemeanor, gross misdemeanor, and felony. A petty misdemeanor is the lowest level offense that exists. In fact, a petty misdemeanor is not considered a crime. A person convicted of a petty misdemeanor can only be fined up to $300.00. A petty misdemeanor is not technically a crime because no jail time can be given. An example of a petty misdemeanor is speeding or possession of a small amount of marijuana. (Minn. Stat. § 609.02, subdiv. 4a) A misdemeanor is a step up from a petty misdemeanor. A person convicted of a misdemeanor can be sentenced up to 90 days in jail and/or a $1,000 fine. Crimes that are regarded as less serious are referred to as misdemeanors. In Minnesota, crimes like first offense DWI and possession of marijuana in a motor vehicle are misdemeanors. As a general rule, the penalty depends on your judge. For most misdemeanors, even if convicted, you will likely not face executed jail consequences. (Minn. Stat. § 609.02, subdiv. 3) A gross misdemeanor is another step up. A person convicted of a gross misdemeanor can be sentenced up to 1 year in jail and/or a $3,000 fine. (Minn. Stat. § 609.02, subdiv. 4) A felony is the highest level. A person convicted of a felony can be sentenced to over a year in prison and/or a fine. If you are convicted of a felony, you will find that your rights may be restricted more than those of a person convicted of a misdemeanor. Convicted felons usually serve more jail time, and the conditions of their incarceration generally are more severe. There are many other consequences. You will not be able to serve on a jury. You may lose your right to vote, or to engage in some professions like teaching or law. Felons are often prohibited from serving in the military or owning firearms. In addition many states have so-called “three strikes” laws that require that a person be sentenced to life upon his or her third felony conviction. Bottom line, contact a criminal defense attorney as soon as possible if facing a felony charge. (Minn. Stat. § 609.02, subdiv. 02)
Q: What should I do if I am charged with a felony?
Quick answer: Get an attorney. Now. Do not represent yourself. Remember the quote, “A man who is his own lawyer has a fool for a client.” Well, it’s true, especially for felony offenses. In Minnesota, crimes range from a misdemeanor level to a felony. Felonies are the most serious. The usual definition is that a felony is any crime that may be punished by more than a year’s imprisonment, and up to death. A statute may not specifically label an offense as a felony, but the punishment defines the offense as a felony. Felonies are categorized in levels of seriousness. The Minnesota Sentencing Guidelines provide a grid that is used to give an offense a presumptive sentence. Felonies include both violent and non-violent crimes, such as grand theft, embezzlement of money, assault that causes severe bodily harm, all degrees of murder, rape, racketeering, large-scale fraud, kidnapping, and serious drug crimes. There are hundreds of felony offenses. See the Minnesota Criminal Code to explore your crime.
Q: I hear both DWI and DUI—is there a difference?
DWI stands for Driving While Intoxicated. DUI stands for Driving Under the Influence. In some states, they mean different things but in Minnesota, they are essentially the same. They both refer to operating a motor vehicle under the influence of alcohol or drugs.
Q: What is “BAC” and how much is considered illegal?
BAC stands for blood-alcohol content. The illegal amount is .08 or more and it doesn’t take much to get there. BAC measures the amount of alcohol in a person’s system. A .08 breath alcohol level means that there are .08 grams of alcohol per 210 liters of breath. Blood alcohol content measures the amount of alcohol in a person’s blood. A .08 blood alcohol level means that there are .08 grams of alcohol per 100 milliliters of blood.
Q: What is Implied Consent?
The Implied Consent law states, “Any person who drives, operates, or is in physical control of a motor vehicle within this state or on any boundary water of this state consents, subject to the provisions of sections 169A.50 to 169A.53 (implied consent law), and section 169A.20 (driving while impaired), to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol, a controlled substance or its metabolite, or a hazardous substance. The test must be administered at the direction of a peace officer.” Minn. Stat. § 169A.51, subdiv. 1(a). This means that as a driver, you are “consenting” to a chemical test to determine your BAC. The Implied Consent Advisory is read to you after you have failed the field sobriety tests and are over the limit on the PBT. The Advisory tells you that you must take a test, that refusal is a crime, and that you have the right to speak with an attorney for a reasonable amount of time prior to taking the test.
Q: Can I talk to an attorney before deciding whether I should take a blood, breath, or urine test when arrested for a DWI or DUI?
Yes and you should. In Minnesota, you absolutely have a right to contact an attorney before deciding whether to take a blood, breath, or urine test, so long as it does not interfere with or unreasonably delay the testing process. However, do not get confused with this answer. You do have a right to consult with an attorney prior to taking the blood, breath, or urine test at the police station; however, you do NOT have a right to consult with an attorney prior to taking the PBT (preliminary breath test) at the scene of the arrest (usually outside of your car after you have miserably failed the field sobriety tests . . . FYI, do not take the field sobriety tests, do take the PBT).
Q: What is white collar crime?
White-collar crime is a broad term that covers a variety of nonviolent crimes that are alleged to involve cheating in one form or another. Examples of white-collar crime include allegations of theft and fraud in its various forms: bribery, insider trading, environmental crime, embezzlement, forgery, tax evasion, kickbacks, bank fraud, wire fraud, money laundering, etc. According to the FBI, white-collar crimes total in the hundreds of billions annually. Because major white collar crime cases are typically handled in federal court, the possible sentences are much higher than in state court. The Law Offices of Ryan Garry have handled many federal crimes, ranging from Tax Evasion to Bank Robbery.
Q: What are the types of hearings in Minnesota?
There are many different types of hearings in Minnesota. Some you may have heard of, but many you probably have not. Most of these hearings are held in accordance with the Rules of Criminal Procedure. Here is a brief overview of the types of hearings in Minnesota: First appearance. This is a short hearing where the defendant is told what the charge is, read his rights, and has the chance to enter a plea. Bail and conditions of release are also set. In some cases, the defendant need not be present at this hearing; the defendant may sign a form stating that he waives his presence. (Rule 5) Second appearance. This is only for felony and gross misdemeanor cases and is much like the first appearance. “The purpose of this hearing is to again advise the defendants of their rights, to allow defendants to plead guilty, or if the defendant does not plead guilty, to request or waive an Omnibus Hearing under Rule 11.” (Rule 8.01) Arraignment. This is where the defendant enters a plea of guilty or not guilty, if he has not already done so. (Rule 8.02) Omnibus hearing. This hearing can take many forms and encompass various things. Issues, such as probable cause, evidence, discovery, admissibility of evidence at trial, procedural or constitutional issues, and more, are argued at this hearing. There may be more than one of these hearings. (Rule 11) Rasmussen hearing. This hearing is also referred to as a suppression hearing. This hearing is scheduled because the two sides disagree as to whether a piece of evidence should be admitted at trial. The attorneys will argue their respective sides and the judge will rule on whether the evidence will be admitted. This hearing usually takes place during an omnibus hearing. (State ex rel. Rasmussen v. Tahash, 141 N.W.2d 3 (1965)) Competency hearing. This hearing is to determine whether the defendant is competent to stand trial. If he is found incompetent and is charged with a felony, trial cannot begin until he is found competent. (Rule 20) Pretrial conference. This is when the attorneys and judge have a discussion to see if the case can be resolved without a trial. It may take place back in the judge’s chambers rather than open court, so the defendant may not be present. The defense attorney will have discussed the possibility of resolution without trial with the defendant and will voice the defendant’s side of the case and possible defense strategies. Usually, some sort of offer from the prosecutor has been made and considered by the defendant by this point. (Rules 11.05, 12.01) Pretrial. The pretrial is held shortly before trial and is similar to the omnibus hearing. The attorneys make and argue motions in limine (motions right before trial), such as keeping out evidence and keeping the jury sequestered. Florence hearing. This is a hearing following the defendant’s motion to dismiss the case due to lack of probable cause. Before this hearing, the defense moved the court to dismiss the case because there is no probable cause—no evidence supporting the charge. Both sides will argue at the hearing and the defense will put on a witness that will testify and support the defendant’s motion. The court will later rule whether the case will be dismissed or will proceed. “The court must determine whether probable cause exists to believe that an offense has been committed and that the defendant committed it.” (Rule 11.04, subdiv. 1) Plea hearing. This is when the prosecutor and the defendant have agreed to a deal (for example, plead guilty to one of the three counts or plead guilty and you’ll only get probation) and they put it on the record in court. The defendant will plead guilty and be sworn in to state the facts that make the defendant guilty. The attorneys will state the plea deal. The judge does not have to accept the plea deal, but the judge’s view will likely be discussed prior to putting the plea on the record. (Rule 15) Sentencing hearing. This is after a trial or a plea and where the parties argue as to what sentence should be imposed. In serious cases, both sides have already submitted memoranda to the court laying out their arguments and what they think the sentence should be. Usually, too, by this point, the probation office has submitted to the court their ideas on the sentence. The court will issue a sentence after hearing the arguments. (Rule 27.03) Morrissey hearing. Here, a defendant is accused of violating probation. This hearing is to determine whether he has, in fact, violated probation and, if so, if he will be sent to prison. (Rule 27.04)
Q: What type of sentences can I get in Minnesota?
There are four different types of sentences in Minnesota. In terms of a timeline, in order to get to this part of the case, the defendant must have either pled guilty or have been convicted. Stay of adjudication. In this situation, the court does not accept the guilty plea or guilty verdict—this is the only time when the court will not accept it. The defendant may get some sentence of probation with certain conditions, such as commit no other offenses, serve some time in jail pay a fine and remain law abiding. If the defendant does everything right and does not violate any of the court’s conditions, the charge is dismissed and the defendant will have no judicial criminal record. Stay of imposition. Here, the defendant will get some sentence of probation (same potential conditions as above) and the original charge and level of offense (say a felony) stays on the defendant’s record until probation is over. If the defendant does everything right and does not violate any of the court’s conditions, the conviction gets lessened to a misdemeanor. Stay of execution. Here, the defendant is sentenced to whatever the court decides but the court “stays” the sentence, meaning that defendant gets probation (same potential conditions as above) instead of prison time. If the defendant does everything right and does not violate any of the court’s conditions, the case is over and the defendant does not have to serve the original sentence, though he will have the conviction on his record. Executed sentence. This means that the court sentences the defendant to serve a certain amount of time in prison. In Minnesota state court, the defendant will serve two-thirds of the sentence and serve the remaining one-third on supervised release for good behavior. This is usually what people mean when they say they were sentenced to serve three years, for example: they will do that time in prison.
Q: How does trial work?
Minnesota Rule of Criminal Procedure 26 governs trials. Essentially, trial is the process where the prosecutor and defense lawyer argue the case before a jury. (Rule 26.03, subdiv. 12) In criminal law, the two parties are the criminal defendant and the government. The government is represented by a prosecutor and the criminal defendant is usually represented by a private defense attorney or public defender. If a defendant is not represented by an attorney, they are going “pro se.” This is very risky as trials are complicated and governed by Rules of Criminal Procedure and Rules of Evidence. Jury trials and bench trials. These are two different kinds of trial. As you can guess, a jury trial is in front of either six (misdemeanor and gross misdemeanor offenses) or twelve (felonies) of your peers. A bench trial is held in front of a judge only. If the offense is punishable by incarceration, the defendant has the right to a jury trial or can opt to conduct the trial in front of a judge. This is a strategic decision that should be made with the assistance of your attorney. If the offense is not punishable by incarceration, only a bench trial is available to the defendant. (Rule 26.01) Voir dire. Trial begins with jury selection, or “voir dire.” “Voir dire” literally means “to speak the truth.” Voir dire procedure differs from judge to judge. Judges may ask no questions, some questions, or all the questions. The prosecutor and defense attorney also have an opportunity to ask questions of the jury. The attorneys can strike a certain number jurors they don’t want on the jury; these are called challenges for cause (there’s a good reason the juror should not be on the panel) or peremptory challenges (the attorney just doesn’t want the juror on the panel and need not give a reason, but the challenge is not motivated by race or gender). Once the jury panel is chosen, the jurors are sworn in. (Rule 26.02) Preliminary jury instructions. After the jurors are sworn in, the judge may give the jurors preliminary jury instructions. These usually consist of standard instructions, such as note-taking during trial. (Rule 26.03, subdiv. 4) Opening statements. Whether or not preliminary instructions are given, the attorneys give opening statements. Calling witnesses and presenting evidence: direct and cross examinations. After opening statements, the prosecutor starts to call his witnesses. The prosecutor questions his witnesses, called direct examination. The defense attorney, then, can question the prosecutor’s witnesses, called cross-examination. After the prosecutor finishes calling all of his witnesses, the defense attorney calls his witnesses. The defense attorney conducts direct examination on his witnesses and the prosecutor can cross-examine the defense’s witnesses. Most evidence must be submitted to the jury through a witness. (Rule 26.03, subdiv. 16) Objections and bench discussions. Throughout trial, the attorneys will make objections. There are many reasons to make objections: preventing a witness from saying something, keeping a piece of evidence from reaching the jury, improper questions, improper responses, attorney misconduct, etc. Sometimes, the attorneys will want to speak with the judge at the bench to explain an objection or ask a so the jury does not hear. (Rule 26.03, subdiv. 15) Closing arguments. After all the witnesses have been called, the attorneys give closing arguments. Final jury instructions. At the end, the judge gives final jury instructions. The attorneys may ask the judge to include certain jury instructions or exclude others. Many are standard but some can be unique to the particular trial. (Rule 26.03, subdiv. 19) Deliberation. After hearing the jury instructions, the jury is sent to deliberate. Sometimes, the jury must remain together, staying in a hotel if deliberations span across days. Jurors may ask questions during deliberations and to do so, they send a note to the sheriff who is stationed with them to give to the judge. Usually, the judge will consult with the attorneys and may call everyone back into the courtroom to answer the question. (Rule 26.03, subdiv. 20) Verdict. When the jury comes to a verdict, everyone will be called to the courtroom to hear the verdict. The verdict must be unanimous. (Rules 26.03, subidv. 20; 26.01, subdiv. 1(5)) Every attorney has a different approach to and style in trial. And as you can guess, no two trials or attorneys are the same. What might be a great objection in one trial might jeopardize the case in another.
Q: What are the different types of pleas?
There are a few different types of pleas in Minnesota. (Rule 14) Here are brief explanations of what they are: Straight guilty plea. The defendant pleads to what he is charged with. Period. He says, “I’m guilty.” Alford plea. This is an uncommon plea in Minnesota. Essentially, the defendant is saying, “I’m innocent, but there’s so much evidence against me that I’ll probably lose at trial, so I’ll plead guilty now to avoid trial.” The defendant maintains his innocence but pleads guilty to avoid going to trial. Some judges don’t like this plea and won’t accept it. Lothenbach plea. Another uncommon plea. Basically, the defendant is not disagreeing with the facts in the case, submits the facts to the judge, and the judge issues a verdict. If the judge finds the defendant guilty, the defendant can appeal the rulings on pretrial issues. The defendant is saying, once convicted by the judge, “You found me guilty but I’m going to appeal the pretrial motions. Had you ruled in my favor on the pretrial motions, this case never would have made it to trial and I could not be convicted now.” This is a complicated plea because many elements must be present. Norgaard plea. Here, a defendant pleads guilty but cannot remember all the facts because he was intoxicated or has or had some other mental ailment. Basically, the defendant does not remember what happened, but has reason to believe he is guilty based on the prosecutor’s proof, and wants to plead guilty (usually to take advantage of a plea deal). Nolo contendere. This means “no contest.” The defendant does not enter a plea, but is sentenced. It is different from an Alford plea, where the defendant does enter a plea. Minnesota does not recognize this plea. Not guilty. The defendant pleads “not guilty” and the case moves forward, often to trial. Defendants usually enter this plea at the first appearance or arraignment so the defense attorney can get discovery and advise the defendant on choices going forward. This plea can be withdrawn. The defendant is saying, “I didn’t do what the prosecutor (or the police or victim) says I did and I want to make them prove their case.” Sometimes, a defendant may plead “not guilty by reason of insanity” or “not guilty by reason of mental deficiency.” All they mean is that the defendant is explaining why he is pleading not guilty and there will likely be a hearing on whether the defendant is insane or has a mental illness so as to be found not guilty by a jury or court.
Q: What are motions and memoranda?
A motion is simply a written or oral statement telling the court that you want something. A memorandum is a written document laying out the reasons why you want it and why the court should agree with you. Usually, attorneys will file a motion telling the court and other side that they need something and that a date needs to be set to argue it in court. Often, attorneys will file a memorandum with the motion or shortly afterwards, but before the court date. Sometimes, after a motion and memorandum is filed, the other side will respond in a written document either opposing the motion or agreeing with it. In the end, the court will decide whether the side making the motion will get what they want. Memoranda consist of a statement of the facts (what happened), what the issue is (the reason for the motion), and an argument. The argument section cites various cases that have been decided, most often in the same state and the current case. This is called precedent. For example, Minnesota trial courts must follow what the court of appeals, state supreme court, and US Supreme Court have decided and published. This is called “binding authority.” Minnesota trial courts do not have to follow, but may consider, cases from federal courts (except the US Supreme Court) or other states’ courts. This is called “persuasive authority.” The memorandum, then, compares the current case to the precedent and argues that that judge should agree with the attorney. The aim of the memorandum is to show the judge that by agreeing with the argument, the judge is not forging new paths but rather is following what other courts have already said is okay (and, hopefully, required).
Q: What is “Criminal Procedure” and how does it affect me?
Everything we do in criminal law is governed by something called the Rules of Criminal Procedure. You can find the Rules at: https://www.mncourts.gov/Documents/0/Public/Rules/Crim_Rules_as_amended_eff_08-01-2012.pdf The Rules lay out the timeframe for getting things done, the order to do them in, and what is acceptable practice. Most motions or hearing are governed by the Rules and those that are not are governed by case law.
Q: What are the Rules of Evidence?
The Rules of Evidence tell us what we can and cannot show the jury. Some things cannot be presented to the jury because they are unreliable or unnecessary. The Rules of Evidence both help and hurt each side: each side wants everything that will help them win the case to be shown to the jury and everything that will hurt their chances of winning to be hidden from the jury. The Rules of Evidence work as a balancing rod to keep relevant and reliable evidence in and irrelevant and unreliable evidence out. All evidence must be relevant: “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Rule 401) And all evidence must pass the balance test: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Rule 403) The most famous types of evidence that you probably know of are character evidence (Rule 404) and hearsay (Rules 801–804). The Rules of Evidence can be found here: https://www.mncourts.gov/documents/0/Public/Rules/Rules_of_evidence_eff_9-1-06.pdf.
Q: What is forfeiture?
Forfeiture is when the government takes possession of property. For example, if you are charged with a drug offense, the government will take any money or items it thinks was involved in or a product of the crime. This is forfeiture. If this happens, you will receive paperwork from the government stating what they took and you can challenge it in court. This is called forfeiture proceedings. Typically, you work with your attorney to write and sign an affidavit (a document listing the facts that you sign under oath) and fill out paperwork to send to the government stating you are challenging their conclusion that the property was used in or was a product of the crime.
Q: What is the difference between bail and bond?
Both a bail and a bond are legal instruments for you to get out of jail pending the outcome of your case. Bail is governed by Minnesota Rule of Criminal Procedure 6.02. Generally, after you are arrested or after the first appearance, the judge will issue bail and bond with or without conditions (such as being in touch with your attorney, remaining law-abiding, and not contacting the alleged victim). The amount is determined by a number of factors, including “the nature and circumstances of the offense charged; the weight of the evidence; family ties; employment; financial resources; character and mental condition; length of residence in the community; criminal convictions; prior history of appearing in court; prior flight to avoid prosecution; the victim’s safety; any other person’s safety; the community’s safety.” (Rule 6.02, subdiv. 2) Your attorney will argue for you in court that you should have a low bail, usually because you are not a flight risk or cannot afford a high bail. Let’s say the judge says $20,000 bail with no conditions or $10,000 bail with conditions (and then the judge will list the conditions). If you post bail, you pay the entire $20,000 or $10,000, whatever you decide. If you make all of your court appearances, you get this money back. However, most people do not have this kind of money to give to the court and so they post bond. If you post bond, you go to a bail bondsman and pay 10% (so $2,000 or $1,000) and the bondsman will post the bail. You do not get this 10% back even if you get to all of your appearances. If you fail to appear in court, the bondsman will likely come and collect the balance of the bail from you because that is the amount he may loose. The 10% you pay is for the bondsman’s risk in paying the whole amount, much like a commission.
Q: Is jail different from prison?
Yes. Jails are usually run by the county while prisons are usually run by the state or federal government. Jails are local while prisons may not be. Jails are for short-term periods (usually no more than a year) while prisons are longer-term. Jails are for people who cannot make bail prior to trial or for those that are arrested. Prisons are for people who are serving time, usually for felonies because those sentences are longer. As you can probably guess, people who are convicted in state court are sent to a state prison but those who are convicted in federal court are sent to a federal prison (this is not always the case, but rather a general rule and a good assumption). There are many other differences with the way they are run, programs they offer, and so on, but this gives you a general overview of the main differences.
Q: The police are offering me a deal to give them evidence on others involved in my crime. Can I trust them?
Depends. Many police officers are men and women of their word, but some are not. The best policy is to have an attorney negotiate with the police and the prosecutor and get the agreement confirmed. Many times, the police exaggerate the trouble you are in or the evidence they really have. There are also collateral consequences of being a “snitch.” It is risky—word on the street can get out and that can mean trouble for you. Bottom line, don’t do this until you have consulted a criminal defense attorney. Many people wind up getting strung along as the police keep asking for just one more piece of information, or just “one more buy.” Don’t get involved in this type of activity until you have an experienced attorney on your side.
Q: Can the police lie to me when questioning me about my case?
It is scary that the answer is YES. The police are allowed to tell you an outright lie in their attempt to get you to incriminate yourself. One of the most common lies is to say they have witnesses or other evidence when they do not, or to tell someone that their accomplices have already confessed so they should as well. Equally as scary, if you lie to a Federal Agent (FBI, DEA), you have just committed a crime. Don’t believe me? Look up Martha Stewart s case . . .
Q: What are the different investigatory agencies and how do they differ?
There are several law enforcement agencies: city police, county sheriffs, state patrol, FBI, SEC, Secret Service, and others. Knowing what law enforcement agency is investigating, however, does not always indicate which court will pick it up. A FBI (federal) investigation may be prosecuted by the county attorney (state). The investigation methods differ case-to-case and agency-to-agency.
Q: What’s the difference between the federal and state systems with respect to crimes and charging?
When a United States Attorney charges someone with a crime, there is either an information or an indictment. An indictment may occur when a grand jury comes in and votes that there is enough proof to charge an individual with a crime. An information is essentially the same document with the same effect but it only needs the prosecutor to sign it. In the state system, a prosecutor signs a complaint to charge a person with a crime. (Federal Rules of Criminal Procedure 6, 7) A Complaint may also be used. (Fed. R. Crim. P. 3) In the state system, a person is charged usually by a Complaint (Minn. R. Crim. P. 2). Sometimes the person may be charged by grand jury. Each system has separate crimes, which come from statutes. Some of the crimes are similar but each system has certain crimes that only they prosecute.
Q: What agencies investigate white collar crime?
Most of the time, federal agencies. White-collar offenses often fall under federal jurisdiction although in Minnesota, the Hennepin County Attorney’s Office has a “white collar crime” division. If agents from one or more of the following federal agencies have questioned you, you may be the target of a white-collar crime investigation: * Federal Bureau of Investigation * Securities and Exchange Commission * Internal Revenue Service * United States Treasury * United States Postal Service * U.S. Citizenship and Immigration Service * Drug Enforcement Administration (DEA).
Q: Do the federal and state courts sentence the same way?
No. When it comes to sentencing, each system has completely separate guidelines. The United States Sentencing Guidelines has a complex formula that gives a number that corresponds with how many months will be served in prison, the fine owed, and the amount of supervised release that follows. Of course, the Guidelines are not mandatory and a judge may sentence above or below what the Guidelines recommend. You can see the Federal Guidelines here: https://www.ussc.gov/Guidelines/2011_Guidelines/Manual_PDF/index.cfm. In state court, the Minnesota Sentencing Guidelines are much simpler to figure out. Like the federal system, the Minnesota Guidelines are not mandatory and the judge may or may not follow the recommendation. You can see the Minnesota Guidelines here: https://www.msgc.state.mn.us/msgc5/guidelines.htm. In both systems, the attorneys get to argue for a sentence and the probation office is heard. The attorneys usually submit memoranda prior to a sentencing hearing and both are heard at the hearing.
Q: What’s a “specialist” and why is it important?
Attorneys must follow Rules of Professional Conduct. The Board that keeps an eye on attorneys takes claims to be a specialist very seriously. Attorneys cannot state that they are specialists unless they also state the name of the certifying organization, which must be accredited by the Minnesota Board of Legal Certification, or, if it’s not, the attorney must state that the certifying organization is not so accredited. Only about 3% of attorneys are certified as a specialist in Minnesota. As of October 2012, only 44 lawyers are certified as specialists by the Minnesota State Bar Association. Ryan Garry is a criminal law specialist. In order to be certified as a Criminal Law Specialist, the attorney must have a certain number of trial hours, be in good standing with the Board of Professional Responsibility, pass a qualification exam, have references from other attorneys and judges, and submit writing samples and court transcripts. The requirements are strict.
Q: Do I really need an attorney?
The answer to this question depends upon the nature of your charges. In most cases, if you retain an experienced criminal attorney, you have a much better chance of prevailing in your case, or receiving a lighter sentence if you are convicted.
Q: Why is important to hire a reputable attorney?
There are many, many criminal defense attorneys. Most prosecutors know the attorneys that will try cases and the attorneys that “talk the talk” but don’t “walk the walk.” It is important to hire an attorney who has a reputation of trying cases because your chances of a great plea deal are much better with a real trial attorney. Like most other professions, reputation in the legal community is very important. It is very beneficial to you, the client, to have an attorney who is well-liked and well-respected in the legal community. Attorneys who are on good terms with judges, prosecutors, and other attorneys have a great advantage over those who do not. When the prosecutors and judges like and trust the defense attorney, they are more likely to listen to and work with what the defense proposes.
Q: Should I try to handle the case myself?
Handling your case alone is called going “pro se.” It’s possible and people do it, but navigating through the court rules, the Rules of Evidence, and the Rules of Criminal Procedure can be very difficult and overwhelming. So, the answer to the question is: Sure, if you have the confidence of performing heart surgery on yourself, then have at it. If not, call a good lawyer, trust me, you will need one.
Q: I’m scared — what should I tell my family?
Nothing. Until you talk to an attorney. Anything you tell anyone else has the potential to be used against you. Sometimes your family (or whomever you talk to) can be required to testify in court. This isn’t always the case, of course, but it’s a possibility. Talk to your attorney about what you should or shouldn’t say and who you can talk with.
Q: Should I talk to the police?
A good friend of mine had a mounted walleye on his wall, and under it was a plaque that said, “if only I had kept my mouth shut I would still be alive” . . . enough said. You are rarely under an obligation to talk to the police. If they approach you, you should say you want your attorney present. Often times, your attorney will get in touch with the person who is questioning you and tell them that you are represented and any communication must go through the attorney.
Q: Can you guarantee a result?
No. If I could, then my legal fees would be 10 times what they are now. If an attorney tells you they can make a guarantee about the result in your case, you should stand up and walk out of their office. No attorney can ethically guarantee a result. The guarantee of a result implies that your fee is refundable if your lawyer is unsuccessful. Such a fee would then be contingent on the outcome of the case. The ethical rules governing the behavior of attorneys forbid an attorney from entering into an arrangement for a contingent fee in a criminal case. If an attorney guarantees a result, ask them to put it in writing. If they will not reduce it to writing, they lied to you. You need an attorney that will be honest with you, one who will give you the bad news as well as the good. The best way to judge an attorney is to research the attorney’s results and reputation. Please feel free to see the “results” and “testimonials” sections of this website.
Q: Do you do a lot of trials?
Yes. Ryan is a board certified Criminal Law Specialist, which means that Ryan has met the requirements of having many jury trial days. Ryan was in three weeks of straight jury trials in March of 2012. The first was a Felony First Degree Assault and First Degree Burglary where the client was acquitted on the most serious charges and the second was a two-week First Degree Criminal Sexual Assault jury trial.
Q: What can I do to help my case?
First, don't speak to the police or an opposing attorney without your own counsel present. Though they may seem sympathetic, you run the risk of incriminating yourself. The standard “anything you say can and will be used against you” really is true. It is rare that you would have to talk to anyone without your attorney present if you say you want your attorney there. Second, cooperate with your attorney. Attorneys are bound by the attorney-client privilege and confidentiality. Whatever you tell your attorney stays with your attorney. Your attorney will only tell the opposing side what is necessary to comply with the rules of discovery and to help you with your case. Remember, your attorney represents you—your attorney is on your side. You have everything to gain by being honest with your attorney and cooperating.