Criminal Defense FAQs

Frequently Asked Criminal Defense Questions

The following information includes frequently asked criminal defense questions. The answers stated are general in nature and are not intended to apply to every situation. Every case is different and carries its own unique set of circumstances that must be taken into consideration by competent legal counsel. By contacting The Law Office of John T. (Tommy) Kirk, you can receive a personal consultation regarding the details of your specific case.

What is the difference between a civil case and a criminal case?

A civil case is a lawsuit, usually seeking the payment of money, filed against someone accused of wrongfully causing some kind of injury to another. The injury involved may be a personal injury, some kind of property damage, or some kind of financial loss. The plaintiff (the person who brings the suit) is the party claiming to have been harmed, and the defendant (the person sued) is the party alleged to have caused the harm. The burden of proof is relatively low in a civil case. The plaintiff need only show that it is more likely than not that the defendant caused the harm. The plaintiff wins the case, the Court issues a judgment requiring the defendant to pay money to the plaintiff. The Court has no power to imprison the defendant in a civil case.

In a criminal case, the plaintiff is not an individual but the government (city, county, state or federal), prosecuting the defendant for allegedly committing a crime. Under the Alabama State Constitution and the Federal Constitution, the defendant in a criminal case has a lot of protections that do not apply in civil cases. In all but the most minor cases, the defendant in a criminal case has the right to be represented by a lawyer, and if he or she cannot afford to hire a lawyer, the government is required to provide one without cost. The burden of proof is highest in a criminal case. It is not enough for the government to prove that it is more likely than not that the defendant is guilty. Unless the jury in a criminal case unanimously agrees that the defendant’s guilt has been proven beyond a reasonable doubt there can be no conviction. Only a unanimous jury can resolve a criminal case.

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What is the difference between a felony and a misdemeanor?

The primary difference between the two is the type of punishment. Both offenses involve fines, but someone convicted of a felony may be imprisoned in State Prison for a period of years. A misdemeanor conviction can also result in confinement, but in a local jail rather than State Prison, and the term cannot exceed a year. There are other differences between the two, and your attorney can explain them to you if it is a matter of interest.

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What does “beyond a reasonable doubt” mean?

The truthful answer to this question is that nobody really knows. Courts and legal scholars across the country have been arguing and debating the subject for years. Some have said that it involves proof “to a moral certainty.” The problem with that and most other explanations is that it isn’t any easier to define “moral certainty” than it is to define “reasonable doubt.” Certainly, proof of guilt “beyond a reasonable doubt” involves a very strong belief in the truth of the charge, but it’s difficult to define with any degree of specificity.

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Does it matter why I was stopped by the police before my arrest?

It certainly does. Before stopping or detaining anyone the police must have specific facts upon which they reasonably believe that criminal activity is taking place. This is called “probable cause.” Any violation of the law, from speeding to having a burned-out taillight amounts to sufficient “probable cause” to stop or detain. The police are barred, by the 4th Amendment of the United States Constitution, from stopping or detaining anyone based on such things as race or ethnicity, the lateness of the hour, the fact that the individual is driving out of a cocktail lounge parking lot around closing time, or a police officer’s hunch.

If you are stopped by the police, pay particular attention to everything said about the reason for the stop. If nothing is said you should ask why you were stopped. This can be extremely important if you are arrested. After an arrest police invariably set about gathering evidence, ranging from searches of the person and vehicle, interrogation, and tests of one sort or another, but if the court later finds that there was no sufficient “probable cause” for the stop or detention, the evidence may be held inadmissible at trial, no matter how incriminating it may be.

If there is a question concerning the probable cause for your stop and detention, a competent criminal defense attorney will prepare and file court papers asking the judge to exclude evidence based on the violation of your 4th Amendment Rights. If the motion is granted, all evidence obtained during, after, and as the result of the stop/detention will be excluded from the trial. This could result in the dismissal of the criminal charges against you, even though the unlawfully-obtained evidence would have been sufficient for a conviction had it not been excluded.

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What does it mean to “Take the Fifth?”

When you are arrested, the police are supposed to read you your rights. This usually begins with a statement that “you have the right to remain silent” and that “anything you say can and will be used against you in a court of law.” This is called the “Right against Self-Incrimination.” It was not created by criminals or by criminal defense attorneys, but by the Founding Fathers of this country and it is embodied in the 5th Amendment of the United States Constitution. You do have the right to remain silent when arrested, and there is nothing wrong in choosing to do so. The law requires you to identify yourself to investigating officers, but in almost every situation, it is a serious mistake for the defendant in a criminal case to answer any questions about the case before speaking with an attorney. Remember, your case cannot be damaged by what you don’t say.

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What is bail?

Except for those charged with the most serious crimes, the defendant in a criminal case will be granted bail. Bail involves the release of a defendant from custody, pending trial, on the condition that a substantial sum of money is posted to guarantee his or her return to Court for the next scheduled appearance. If the defendant is present for all court appearances, the money will be returned to whoever posted it when the case is over. If the defendant fails to appear, the Court will order forfeiture of the bond and no funds will be returned.

The posting of cash bail is relatively rare these days. In most cases, a surety bond in the amount of the bail is posted by a bail bond agency. The purchaser of the bail bond pays the agency a fee (usually 10-15% of the bail) and pledges collateral for the full amount of the bond. This can be real estate, stocks, savings accounts, etc. Obviously, it’s a lot easier to come up with 10-15% of the bail than with all of it, but of course, there’s no refund of the 10-15% when the case is over, and if the defendant skips the bond, the agency will not hesitate to foreclose on the collateral.

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If I’m convicted of a crime, how does the judge determine the proper sentence?

The law lists a minimum and a maximum punishment for every offense, and the judge must devise a sentence within these limits. In determining the proper sentence the judge will consider many factors. Generally speaking, a repeat offender is going to face harsher penalties than a defendant with no prior criminal record. The judge will also consider the facts of the case and whether or not the offense was an aggravated one. Since the judge doesn’t know you personally it is likely that you will be referred to a Probation Officer for a pre-sentencing investigation. The Probation Officer will interview you, and may also interview witnesses and the arresting officers, as well as people whose names you provide. Then a “pre-sentence report” will be prepared and given to the judge. It will summarize the Probation Officer’s investigation and include a sentencing recommendation.

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Do I have to get a lawyer in a criminal case, or can I represent myself?

There is no legal requirement that you be represented by a lawyer unless the Court finds that you are not mentally qualified to represent yourself. There is an old saying, however, that “he who represents himself in court has a fool for a client.” Even if the case is a simple misdemeanor, a conviction could result in a fine, jail time and other serious and negative potential consequences of which you may not be aware, unless you are represented by qualified legal counsel.

The government will be represented by a skilled lawyer experienced in prosecuting criminal cases, and the Court will make no allowances for you whatsoever based on your lack of legal education, training and experience. If you can’t afford to hire a lawyer, the Court will appoint counsel to represent you. There is far too much at stake in any criminal prosecution to take the risk of proceeding without legal counsel.

If you or a loved one has been arrested and accused of a drunk driving-related crime and require the immediate professional services and trusted legal advice of an experienced criminal defense lawyer, please contact The Law Office of John T. (Tommy) Kirk today at (334) 264-1498, or use the contact form provided on this site to schedule your initial consultation.

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