You're not really a criminal, but the cops came down on you hard when they found a baggie of marijuana in your glove box. Not too big a deal, right? But now you are facing an arrest. People commit more crimes that you'd think; it is estimated that the average person commits three felonies each day by accident. To help you through the painful process of being charged with a crime, FindLaw has created this guide to your Wilmington criminal case.
Arrest or Citation
Your criminal case begins when the Wilmington police either arrest you or issue you a citation. If they issue a citation and release you, the citation will provide a date for your court appearance. You should take this date seriously, as you can be charged with the additional offense of "failing to appear" at court.
Once the police arrest and want to question you, they will read your Miranda rights. You will be informed that you have:
- The right to remain silent;
- Anything you say can be used against you in court;
- The right to an attorney;
- The right to a public defender if you cannot afford an attorney.
Many defense attorneys would advise you to remain silent. Any statements you make, however innocent, can potentially be used by the prosecutor against you in trial.
You will then be transported to either the police headquarters or the New Hanover County Detention Center. Once they allow access to a telephone, it would be wise to contact a trusted loved one who could arrange your release.
Your arraignment is your first court appearance. You will hear the formal charges against you and can enter a plea. It may be a bad idea to plead guilty at this early stage because you have not had a chance to see the evidence against you, speak with a defense attorney, or consider possible defenses.
You will also have an opportunity to request a public defender (PDF). To respect your Sixth Amendment right to counsel, North Carolina must pay an attorney to represent you when charged with serious crimes, but only if you cannot afford to hire an attorney. If you don't qualify for a Public Defender, you should think about hiring an experienced criminal defense attorney.
Bail and Release
If you are under arrest, at the end of your arraignment, the judge will either release you or set the bail amount, depending mainly on the severity of the charges. If you are released, make sure you attend your next scheduled court date. If bail is set, you need to deposit that sum of money with the court before they will release you. This money will be returned after you attend all your court dates.
The purpose of bail is to prevent you from fleeing the jurisdiction after being released. If you miss any court dates, you risk forfeiting your bail. If you cannot afford the bail amount, you should speak with a Wilmington bail bonds company, which will typically loan you the bail amount in exchange for 10% of the total.
Motions in Criminal Cases
Motions are the first step to fighting back. The most common motion filed in a criminal case is a motion to suppress evidence. In this type of motion, you typically argue that the State's evidence was gathered in violation of the U.S. Constitution's guarantees against illegal searches or seizures. For example, the police may have interrogated you without proper Miranda warnings, or maybe they initiated a traffic stop without reasonably suspecting you had committed a crime. If the judge finds that evidence was unlawfully gathered, he may exclude it from court. If so, neither the judge nor jury will consider that evidence for any purpose. In rare cases you can get all the evidence against you excluded, which means that the case against you will probably also be dismissed.
Another common motion is a motion to dismiss. A motion to dismiss alleges that the prosecutor has failed to state a proper claim against you, or has failed to provide sufficient evidence at the preliminary hearing. In felony cases, this motion is usually made after the prelim.
You have a right to a preliminary hearing in all felony cases. Prelims are mini-trials held before a judge, where the prosecutor must convince the judge that probable cause exists to hold you for trial. Basically you get a sneak peak at the State's evidence and your attorney will get to cross examine (question) some of their key witnesses. If prosecutors meet the low evidentiary burden, the judge will "hold you to answer" for the charges and set a trial date.
You now must make a very difficult decision: roll the dice and head to trial, or take a favorable plea bargain. Prosecutors can reduce or dismiss charges (or set greatly reduced jail sentences) in exchange for a guilty plea. If the evidence against you is strong, you may be smart to consider a favorable plea agreement. If you go to trial you could be acquitted, but if you are convicted, you could face a much steeper penalty.
The first step in a trial is jury selection. In North Carolina all felony trials must have 12 jurors, and they must unanimously convict you before you can be punished. On the other hand, if they unanimously vote to acquit you, you are free as a bird. The alternative, however, is a mistrial where the jurors fail to agree on one verdict. You will likely be released after a mistrial, but the prosecutor could re-file the same charges against you.
The lawyers will then make opening statements and present evidence. Evidence is normally witness testimony, but can be documents, physical objects, or recordings too. Your attorney will have one last chance to persuade the jury to acquit at closing statement. The judge will then read jury instructions and give the jury a chance to deliberate before rendering a verdict.
Know your rights! Read up on your constitutional guarantees, or learn more about criminal law.