|What are my rights?
Historically speaking, our forefathers wanted to protect
citizens of this country from the types of abuses perpetuated
against the people by governments in Europe. In the
hope of achieving this goal, protections against governmental
abuse were incorporated as the Bill of Rights in the
United States Constitution and the South Dakota Constitution.
Your basic constitutional rights include the following:
You have the right to be represented by a lawyer. If
you are cannot afford to hire a lawyer, the court will
appoint a lawyer to represent you.
You are presumed innocent until a judge or jury finds
you guilty. I like to tell the jury that the presumption
of innocence is like a coat or armor protecting the
accused. This presumption of innocence serves as the
foundation for many of your other constitutional rights.
For example, if you are presumed innocent, then you
should not have to do anything. Should the state or
federal government believe you committed a crime, then
it has the burden of proving you guilty.
If you are presumed innocent and the state or government
has the burden of proof, then it should not be able
to make you talk. That is the basis of your right to
remain to silent as guaranteed by the Fifth Amendment.
The prosecution has the burden of proving you guilty
of all elements of the offense by evidence beyond a
reasonable doubt. Prosecutors try to convince a jury
that "beyond a reasonable doubt" means they
only need to be 51% sure to convict. Defense lawyers
try to make the jury think it means they have to be
99% certain to convict.
You have the right to a speedy public trial in the
county in which you are charged before an impartial
judge or jury. Speedy trial generally means that the
case has to be completed within 180 days following your
initial court appearance in state court and 120 days
in federal court.
Public trial means that in all cases, except juvenile
proceedings, the doors to the courtroom are open for
all to observe. Publicity is always embarrassing to
the accused, but it is the only weapon available to
ensure that the accused are treated fairly by the judicial
Your right to an impartial trial means that your case
should be decided by a judge or jurors who do not have
preconceived notions about the type of offense being
charged. It also means that your case should be decided
by a judge or jurors who have not already made up their
mind about your guilt.
Picking a jury is critically important in a criminal
case. All jurors bring their life experiences and beliefs
with them into the jury box. The defense lawyer must
try and identify potential jurors who will be fair and
impartial and exclude from the jury those persons who
the defense believes may not be fair and impartial.
There are twelve jurors in a criminal case. The jury
verdict must be unanimous. All twelve must agree that
the accused is either guilty or not guilty. If the jury
is unable to agree, then the state is entitled to retry
You have the right to confront the witnesses brought
against you. This means that if someone wants to say
something about your case at trial, they have to walk
to the front of the courtroom, take an oath, and testify
in front you and the jury.
You further have the right to cross-examine all witnesses
brought against you. The purpose of cross-examination
is to show the jury that it is impossible for the witness
to have seen what he or she claims, that the witness
has some bias in the case, that the witness may have
been compensated for his or her testimony, or that the
witness is simply not credible or worthy of belief.
You have the right to subpoena witnesses to testify
on your own behalf. All persons subpoenaed to testify
must appear or risk being held in contempt of court
You have the right to protection against double jeopardy.
Generally speaking, this means that the state or government
is entitled to only one jury trial in its attempt to
convict you. Should you be found not guilty, then you
may not be recharged with the same criminal offense.
The constitution further provides you with the protection
against cruel and unusual punishment. Determinations
as to whether a sentence or incarceration practice is
violative of this prohibition have to be made on a case
by case basis.
You also have the right to the effective assistance
of counsel. This means that if your lawyer erred, and
you were prejudiced or hurt by the error, then you should
have a new trial. The purpose of this right is to try
and make sure that everyone receives a fair trial.
Finally, you have the right to appeal your conviction
to a higher court. Typically, appeals in criminal cases
must be commenced within 30 days after the judgment
of conviction is filed with the clerk or courts.
What are Miranda warnings?
In a case called Miranda v Arizona, the United States
Supreme Court told police that if they are going to
conduct a custodial interrogation, they have to tell
you that you have the right to a lawyer and if you cannot
afford one the court will appoint one for you, and warn
you that anything you say can and will be used against
you. Should the police fail to do so, then your statements
may not be used against you.
I am a suspect and the police want to talk to me.
Do I have to talk to them?
This is always a very difficult question. The short
answer is no, you do not have to talk to them. However,
there are cases in which you may want to talk to the
police with your attorney present.
Police are trained in the art of interrogating people
they suspect of committing criminal offenses. Law enforcement
officers go to schools where they are taught to catch
people by surprise and question them before they have
the opportunity to talk to a lawyer. Law enforcement
also tell people they are not under arrest and they
are free to leave so that they do not have to give persons
their Miranda warnings prior to questioning.
The courts also permit the police to lie to and deceive
suspects during questioning. The saying is that "trickery
Law enforcement want to interview suspects for the
purpose of gaining a confession. Sometimes there is
no other evidence in a criminal case.
I would recommend that you talk to a lawyer before
making a statement to the police if you are a suspect
in a criminal investigation.
What happens to my rights if I plead guilty?
You are admitting that you committed a criminal offense
by pleading guilty. Thus, you are waiving the following
constitutional rights: the presumption of innocence,
the burden of proof, your Fifth Amendment right against
self-incrimination, the right to a speedy public trial
by an impartial judge or jury, and the right to confront
and cross-examine witnesses brought against you.
What is a plea bargain?
Most criminal charges do not proceed to trial. The
vast majority of criminal cases result in a plea bargain.
A plea bargain is where the prosecutor and defense reach
an agreement on how to resolve the criminal charge.
Plea bargains may involve a scenario in which the prosecution
agrees to dismiss one or more charges in exchange for
a guilty plea to a charge. A plea bargain may involve
a charge reduction in which the accused pleads guilty
to a less serious criminal offense.
Plea bargains may include a sentencing recommendation
by the prosecution. A sentencing recommendation may
be for a suspended imposition of sentence, a suspended
execution of sentence, a "cap" or maximum
amount of jail time that may be imposed by the court,
the amount of any fine, or restitution for damages.
Do judges accept plea bargains?
Plea bargains are recommendations. Judges have the
power to accept or reject plea bargains. However, judges
will tell the defense whether the plea bargain is acceptable.
Most judges also explain why a plea bargain is unacceptable.
This permits the parties to try and negotiate a plea
bargain that is acceptable to the court. If a plea bargain
cannot be reached, most judges will permit the defendant
to withdraw his or her guilty plea and proceed to trial.
What is a suspended imposition of sentence?
A suspended imposition of sentence means that the conviction
will be removed from your record and the court files
sealed after you successfully complete the terms and
conditions of probation as determined by the court.
Each person may receive one suspended imposition of
sentence in their lifetime.
What is a suspended execution of sentence?
A suspended execution of sentence appears as a conviction
on your record. Typically, a judge will order the defendant
to serve a period of time in jail or prison and then
tell the defendant that he or she does not have to go
to trial or serve all of the time, as long as the defendant
successfully completes the terms and conditions of probation.
If the defendant does not successfully complete probation,
then the court has the option of incarcerating the offender
for the balance of the time that was suspended.
What is a "nolo contendre" plea?
The term "nolo contendre" means "no
contest." There are cases in which a person may
decide that it is better not to contest the charges
but does not want to plead guilty for other reasons.
For example, a driver is involved in a motor vehicle
accident and receives a ticket for speeding. The driver
does not want to contest the ticket but does not believe
the accident was his or her fault. The driver does not
want to admit in criminal court that he or she was speeding
because the admission could be used against the driver
in civil court. A nolo contendre plea is not an admission
of guilt and could not be used against the driver in
I was arrested and charged by complaint in state
court. What happens next?
The bail bondsman or deputy sheriff at the jail should
have given you a piece of paper with your first court
date written on it. The first court date is your initial
appearance. At your initial appearance the judge will
advise you of your rights, the charge(s) against you,
and the potential punishment if convicted.
If you plead not guilty, the court will probably set
a time and date for a dispositional conference. The
purpose of the dispositional conference is to make the
prosecution and the defense discuss your case in the
hope of arriving at a plea bargain. If a plea bargain
is reached, then you go before a judge, present the
plea bargain, get sentenced, and your case is finished.
Should you be charged with a class 2 misdemeanor and
be unable to reach a plea bargain at the dispositional
conference, then a trial date will be scheduled.
Should you be charged with a class 1 misdemeanor or
felony and be unable to reach a plea bargain at the
dispositional conference, then the court will schedule
a preliminary hearing.
If you are bound over for trial following the preliminary
hearing, the judge will establish a motion deadline,
plea deadline, plea date, and trial date at the conclusion
of the preliminary hearing.
What is a preliminary hearing?
A preliminary hearing is a safety valve. The purpose
of the preliminary hearing is to make the prosecution
show the court that law enforcement was justified in
stopping and investigating you and that there was probable
cause to arrest you.
Probable cause means more likely than not. If the judge
feels that the state had a reasonable articulate suspicion
to stop and investigate and probable cause to believe
that a crime was committed and you did it, then the
judge will bind you over to stand trial.
Your constitutional rights control what happens at
a preliminary hearing. You have the right to a lawyer,
you are presumed innocent, the state has the burden
of proof, you have the right to remain silent, and you
have the right confront and cross-examine witnesses
brought against you. The only way the state can show
probable cause is by placing its witnesses on the stand.
Your lawyer has the right to cross-examine the witnesses
The defense loves preliminary hearings for two reasons.
First, we are able to discover all the evidence the
witnesses have against you. Second, it provides the
defense with the opportunity to set up the prosecution
witnesses for impeachment at trial. It is for these
reasons that the prosecution often uses a grand jury.
I was arrested and charged by grand jury indictment
in state court. What happens next?
An indictment is a piece of paper signed by the foreperson
of a grand jury charging you with the commission of
a crime. The grand jury system was originally intended
by our forefathers to serve as a protection against
governmental abuse. The concept was to give the citizens
the power to determine whether a crime was committed.
The grand jury is composed of six to ten persons for
the purpose of investigating public offenses. Grand
jurors serve a limited term and are randomly selected
from the voter registration and driver license lists.
The Minnehaha County grand jury meets at least two days
In theory, the grand jury is supposed to function as
a sword and a shield. The grand jury functions as a
sword striking down criminal conduct. It functions as
a shield to protect the innocent from being wrongfully
charged by the prosecuting authorities.
In reality, defense lawyers joke that a prosecutor
can indict a ham sandwich. The reason for this is because
of the manner in which a grand jury functions.
Grand jury proceedings are secret. The only persons
permitted to appear before the grand jury are the prosecutor
and the witness. Neither the accused nor defense counsel
have a right to be present and observe grand jury proceedings.
The accused does not enjoy the right of confrontation
or cross-examination. The grand jury is only permitted
to hear the testimony that the prosecutor wants it to
hear. Predicated upon testimony presented by the prosecutor,
the grand jury determines whether there is probable
cause to believe that a crime was committed and whether
you did it.
Most felonies in South Dakota are prosecuted by grand
jury indictment. Many misdemeanors are increasingly
being prosecuted by grand jury indictment. Nearly all
federal cases are prosecuted by indictment.
The bail bondsman or deputy sheriff at the jail should
have given you a piece of paper with your first court
date written on it. The first court date after indictment
is called an arraignment. At your arraignment, the judge
will advise you of your rights, the charge(s) against
you, and the potential punishment if convicted.
The court will then assign your case to a specific
judge, set a dispositional conference date, motion deadline,
pretrial conference date, and a trial date.
I have been charged with a crime in federal court
and if convicted am facing the United States Sentencing
Guidelines. What should I do?
You need a lawyer. You should hire a lawyer as soon
as possible. If you cannot afford an attorney, the federal
court will appoint either the federal defender or another
lawyer to represent you.
It is my opinion that federal charges are more difficult
to handle than charges in state court. The rules are
different in federal court and everything takes more
effort to do.
In addition, the defense is not provided certain discovery
materials until the Friday before trial which complicates
Finally, if you plead guilty or are convicted at trial,
you must then prepare for sentencing. Sentencing in
the federal criminal justice system is extremely complicated
due to the United States Sentencing Guidelines.
Congress created the United States Sentencing Commission
for the purpose of establishing sentencing policies
and practices for the federal courts that will "assure
the ends of justice by promulgating detailed guidelines
prescribing the appropriate sentences for offenders
convicted of federal crimes." It is not unusual
to spend several days writing briefs and a day in trial
arguing over the applicability of the Guidelines to
It is very difficult to generalize about cases in federal
criminal court. Please call me if you have specific
questions about a federal charge.
Should I go to trial?
This is the ultimate question. The accused is entitled
to copies of all police investigation reports, to inspect
all the physical evidence, and to interview all prosecution
witnesses. It is only after this discovery has been
completed that a lawyer can evaluate a case. Each case
must be evaluated on its own merits.
I usually sit down with my clients and prepare a balance
type sheet. On the left side of the paper, we list the
evidence that the state will rely on in support of conviction.
On the right side of the paper, we then list the evidence
that the defense will rely on in support of acquittal.
If we believe that the balance is in favor of the state,
then it may be wise to explore our plea bargain alternatives.
If we believe that the balance is in favor of the defense,
then it may be worth the risk and expense of going to
trial and rolling the dice in front of a jury.
I think my friend got a better deal in court. How
People tell me that they do not trust lawyers, they
do not trust prosecutors, they do not trust judges,
and that the system does not work. My response is that
there are no absolutes. Each case has its own strengths
and weaknesses. Lawyers are different, juries are different,
and judges are different.
Law deals with human behavior. It is not a precise
mathematical science. I tell my clients that whether
they are guilty or innocent does not matter. The only
thing that matters is whether the prosecution can meet
its burden of proving the defendant guilty by evidence
beyond a reasonable doubt.
Jury verdict forms have two blanks. One verdict blank
says "guilty." The other verdict blank says
"not guilty." There is no blank on the verdict
form that says "innocent."
Juries never find the accused innocent. They simply
determine that the prosecution failed to meet its burden
For these reasons, it is often impossible to explain
why someone else received a sentence that may be different
than what is being offered to you without knowing all
of the facts and details related to each case.
Do I need a trial lawyer?
Absolutely. Your personal freedom is at stake in criminal
cases. My job as a trial lawyer is to understand the
law, explain the law to my clients, present my clients
with options, and be able to try a case.
Prosecutors know whether a lawyer has the ability to
successfully try a case in front of a jury. If the prosecutor
believes that your lawyer does not have the ability
to try a case, it may impact upon your options.
Trial experience is critically important in practicing
criminal defense. Your lawyer has to be able to stand
in front of the jury as your advocate. When you interview
a lawyer for the privilege of representing you, ask
about his or her trial experience. Find out the type
of cases handled, number of jury trials, and length
What do you charge for representation in criminal
I usually charge by the hour together with reimbursement
for costs and sales tax. I also ask for a retainer prior
to starting a case. A retainer is money that you deposit
with me to cover all or part of the estimated legal
Please call me at 339-0780 to discuss your case and