Criminal Defense FAQs

Criminal law can be quite complicated, which is not helped by the wealth of myths and misconceptions about what your rights are and how criminal defense works in reality. The Raleigh based criminal defense lawyers at Tarlton Polk are always available if you have questions or are looking for representation for your specific case. Below are some frequently asked questions that we get pertaining to criminal law in both the state of North Carolina and federal crimes, as well as our practice. Please note that there can be unique circumstances that deviate from standard procedures, so if you have any important questions it is best to speak with an experienced attorney directly.

We’ve grouped our FAQ into the following broad topic areas:

  1. Hiring a Defense Lawyer and Our Practice
  2. General Criminal Defense
  3. Police and Law Enforcement
  4. Witnesses, Evidence, and Defense Strategy

Legal Represenation and Our Firm

Yes, we highly recommend that if you can afford to, or put together the money, you should hire a private lawyer to represent your case even if it does not seem too serious at first. A private attorney can even help you with more flexible options for payment if you need it, but ultimately you have to realize that the alternative could be a great loss of freedom, which almost always carries a much greater financial burden than paying for an attorney.

Whatever you may decide, it is always a good idea to speak to a private lawyer to understand what you may be facing if you are convicted of the charges, and how they could help get the best results.

 

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For most cases, yes. Your first point of contact with the firm is certainly free, whether it is calling our office and speaking with our paralegal or through a submission in our contact form. From there we can discuss scheduling a consultation with an attorney that establishes attorney/client confidentiality, and whether there are unique circumstances that require extra consideration and thus a small fee. If you hire us, the consult fees will be credited to the overall cost of representation. We will never surprise you with a fee.

Generally, misdemeanors, traffic tickets, and crimes that do not involve complicated networks or co-defendants will not involve a fee for consultation. We may inform you that there would be a consultation fee under the following circumstances:

  • Complex felony cases where you are a co-defendant, such that an initial consultation with you would prevent us from representing any of your co-defendants due to conflict of interest, even if you were to not hire us.
  • Post-conviction cases, where we may need to have an extensive discussion and background research to be able to inform you if you or your loved one are actually eligible for the relief and how to proceed.

We offer a variety of arrangement for paying our fees based on the case, and can discuss alternatives depending on your circumstances.

Unlike many larger firms that bill by the hour, which can be stressful for clients who end up seeing an astronomical bill by the end of their case, we do offer flat fees in most cases. Additionally, we can offer arrangements for payment plans depending on the case and your circumstances.

To discuss what the cost of representing your case may be, contact our office.

It depends. If you paid in full and our fees were discussed based on estimated time we would invest in the case, but it gets resolved significantly faster, we can discuss a partial refund.

In particular, if you hired us for a case that got resolved quickly for reasons mostly outside of our work, we can offer a partial refund for the time we expected to invest but didn't in the case. For example, if you hired us and paid but prosecution soon decided to dismiss the case, we can then discuss the work already invested into the case and process a partial refund.

Yes, we offer both options depending on what you are most comfortable with, as well as phone calls if you cannot do a face-to-face conference. You can discuss your preference when you first speak with our office to arrange the consult.

For in-person consults, our office is abiding by CDC guidelines due to the COVID-19 pandemic. If you want to schedule a video-conference but are not familiar with the technology, you can let our office know and we will help assist you with setting up your device for a consult.

No, every case is different and involves too many variables that are only partially influenced by the attorneys involved. Experienced attorneys can give you a good idea of what can likely happen because they have taken many cases that were similar, but there is guaranteed to be differences between any two cases, whether it is the qualities of the defendant, the jury, or the current cultural and political perception of certain crimes.

Public defenders tend to be overworked and under-payed, making them less likely to get favorable results in your case than a private defense lawyer. If you absolutely cannot afford a private lawyer, you should still work with your assigned public defender and make it easier for them to represent your case to their best ability. They are still on your side and have enough of experience to get you better results than if you choose to represent yourself.

 

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Absolutely not, it is really never a good idea to represent yourself in a criminal case. No amount of online research on the law will give you the experience and understanding you need to fight criminal charges. The law is confusing enough as is in its written form, but in practice it is significantly more complex and reliant on a great deal of precedent and subjectivity.

If you cannot afford a private lawyer, the court is required to hire you a public defender. Despite what some people may tell you, they are on your side and while they may not help you as much as a private lawyer, you will be significantly worse off without a lawyer.

 

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As soon as possible. If you have been arrested, were served a warrant, a target letter, or any other brush in with law enforcement that means or could mean facing charges, you should contact a lawyer as soon as possible. Even if you are unsure whether you'll be facing any charges, it is best to at least get in touch with a lawyer first to discuss the issue so that if you end up needing their full service, you can hire them then.

Usually yes, at least when you are hiring your own attorney. If the attorney was court-appointed, the court will not assign the attorney to you, so if you want to get a new attorney you have to petition for one on the grounds that their legal counsel has been insufficient.

We highly recommend that if you are having trouble with your lawyer, you try to hire a new one as early as possible, or arrange for a new attorney before firing your current one. Even the most experienced attorneys need time to review a case, and the court will unlikely agree to extend your trial date solely because you changed attorneys.

It depends, sometimes plea bargains an be quite generous and may be worth accepting if your likelihood of being well-received in trial is low. If you think a plea seems like a good idea, you should discuss it carefully with your attorney and make sure you understand every aspect of what you are agreeing to and you understand your rights.

 

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Yes. First of all, what may seem obvious to you may not be obvious to a judge or jury, so you need a lawyer to make that case to them for you. Second, the way crimes are defined in the law may differ greatly from what you understand or expect. For example, you may think you were obviously wrongfully accused of an assault because you did not cause somebody a physical injury, but North Carolina's definition of assault does not require a person to be inured. Third, you probably are unaware of what evidence prosecution has against you, and while you could request such evidence if you are representing yourself, an experienced attorney will know exactly what to look for and how it may support or hinder the prosecution's case.

Yes. You should always take the advice of a lawyer to make such an important decision. Even if you believe pleading guilty is the right thing to do and the only way to atone for your wrongdoing, a lawyer can help you understand what your rights are and what you are pleading to so that you do not make any mistakes or plead to something you did not intend to.

Generally no, at least not within the criminal case proceedings. This is because the fact that you were not proven guilty beyond a reasonable doubt does not establish a claim for a false accusation or false arrest. Essentially, being found not guilty in court is not the same thing as being proven not guilty in reality, it just means the prosecution did not sufficiently prove you were guilty.

In order to recover money for a criminal case, you would have to sue the government for a false arrest, which has a very high bar for proof. If false accusations from another citizen triggered the criminal case, you could also pursue civil lawsuits against them, but these once again require a skilled attorney and have a high bar for proof.

When hiring an attorney it is important to find one you can trust and are comfortable with, and part of that is understand how experienced they are to take on your case. It is important to have this discussion with any lawyer you plan to hire, but keep the following advice in mind:

  • Every case is unique: While the lawyer you are speaking to may have taken on hundreds of charges for the same crime, this does not mean they have dealt with something with the exact same circumstances. This is not a problem for skilled attorneys, as part of the job is exploring those nuances and using the uniqueness of the case to your favor as there won't be a prior case ruling to point to which may not be in your favor.
  • Focus on substance over quantity: Quantity is certainly important, but we recommend not getting too entranced  by lawyers who say they've dealt with thousands upon thousands of a certain type of case. You should hire a lawyer with a good deal of experience, but also one that does not see your case as another number to quickly work through in a simple formula. The law is complicated and each case should be handled with a great deal or thoroughness.
  • Ask yourself if you trust them: Finding the lawyer that is right for you can be challenging because criminal charges are stressful and the clock is ticking very fast. There are many ways lawyers such as ourselves try to build trust with clients quickly, including opening several channels for communication and feedback, getting accredited as a trustworthy law firm, and speaking candidly and personally with potential clients so they both understand what is at stake and know how we can help.

General Criminal Defense Questions

Generally, when you are arrested in North Carolina you will be brought into the police station where you are "booked", which means the officers will collect personal information from you. They will use this information to determine if you have any warrants or a criminal history in order to evaluate whether you can be released from their custody and whether the payment of a bail is required for release.

The police will then file a criminal complaint in court and you will be required to appear before the court for trial.

After being arrested and charges are filed and approved by a court magistrate, the person charged will usually have to appear for an arraignment. This is a formal proceeding before a court where they announce the charges filed against the defendant.

At this point the prosecutor can ask the court to enter an order for detention or some other form of restrictions on the defendant's freedoms if released.

The defendant will either have to hire a private lawyer or have a public defender assigned to them if they cannot afford to pay for an attorney. The defendant will have the choice of entering into a plea of guilty or not guilty. If they enter into a plea of not guilty, the court will set a date of trial.

 

Criminal trial proceedings can have slight differences between court rooms, and greater differences when comparing state to federal government, but the general process is as follows:

  1. Jury Selection: potential jurors are brought to court and selected by the judge, prosecuting attorney, and defendant's attorney. Everyone involved will ask each juror a general set of questions to determine if they are allowed to serve on the trial. Questions often focus on the person's ideologies, opinions on certain relevant subjects, and views on different groups of people. The judge will also be looking to determine if the juror is mentally sound as well. Both prosecuting and defending attorneys have the right to exclude a certain number of jurors, but they cannot be based on discriminatory grounds such as their gender or race.
  2. Opening Statements: Both prosecution and defense are to give an opening statement to the jury offering an overview of why you should take their side.
  3. Witness Testimony and Cross-Examination: Witnesses are brought on the stand and asked questions, while evidence relevant to the case are brought up. The party who calls the witness will question them in a "direct examination", while the opposing attorney can question the same witness in a process called "cross-examination". The original party will then be able to question the witness again in a "re direct examination"
  4. Closing Arguments: Both parties offer a final statement and summary in order to persuade the jury.
  5. Jury Instruction: The judge gives the jury a set of legal instructions that cover their responsibility and how they may determine the verdict. This usually includes ensuring that they understand the laws pertaining to the case and reminding them of the oath they took before hearing the case.
  6. Verdict: The jury deliberates among themselves to come to a verdict on the case.

 

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Several guidelines and restrictions have been implemented in light of the COVID-19 pandemic. Most of these changes involve correctional facilities and concerns for vulnerable prisoners to allow for more compassionate release from prison for non-violent inmates. The most challenging restriction for criminal defense is that it has made in-person contact between lawyers and their clients in facilities more restricted.

COVID-19 has not trial proceedings significantly, as trials continue to be carried out in courtrooms with juries and witnesses present, following guidelines on social distancing and masks.

 

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Federal crimes involve federal agencies and usually are outside the scope of a single state. This includes crimes such as drug trafficking that cross interstate lines, immigration crimes, and internet fraud crimes where information is transferred beyond state boundaries. 

While the laws certainly overlap, there are instances where an action may only be a crime in the state but not federal government, or vice-versa. As the state and federal government and separate entities, you can potentially be charged in both courts for the same crime, though this does not happen often.

If you are facing charges in both courts, it is important to hire an attorney experienced at the state and federal level.

 

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While all counties are governed by the same set of federal and state laws, some rules and regulations change when you cross counties and in different courtroom. These differences are referred to as ordinances or municipal codes, and they govern actions limited to certain cities or counties. These usually impact the procedural elements of criminal law, such as how bonds may be set, as well as civil law violations such as littering and parking violations.

Beyond written law, judges in different courtrooms may apply the law differently, and law enforcement in different parts of the state have differing priorities for criminal investigations.

 

While misdemeanors are less serious crimes than felonies, they can carry harsh penalties, including jail time.

North Carolina follows a structured sentencing procedure for determining a convicted person's punishment. For misdemeanors, this largely considers the criminal conviction and prior offenses. Time served in prison for a single misdemeanor can generally range from 1 to 150 days.

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Felonies are serious crimes, but have varying "classes" from I to A, where class A is the most serious kind of felony. Structured Felony sentencing is a more complex process than misdemeanor sentencing. The court will consider the current offense, criminal record, and additional "aggravating" or "mitigating" factors. The penalty will often involve serving time, though lesser felonies may be able to get off with some form of probation. Very serious felonies can result in life imprisonment. 

In addition to prison and fines, felons lose their right to carry firearms even after serving time, though they can restore those rights under limited circumstances.

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Whether you lose your rights, and which ones you lose, depends on the crime. In general, after serving a sentence for a misdemeanor, all your rights should be restored. There are however exceptions if your misdemeanor also entailed registration as a sex offender, or protective order restrictions.

While some states may impose severe restrictions on the rights of felons after serving time, in North Carolina your citizenship rights such as voting and serving on juries will be restored, all you need to do is register again. The major right you do lose as a felon is your right to possess firearms, though there are circumstances where this right can be restored later on.

 

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Yes, these crimes are called "incomplete crimes" and fall into any of the following categories:

  • Attempt: the crime was attempted but not completed.
  • Conspiracy: two or more people entered into an agreement to commit a crime.
  • Solicitation: the defendant enticed, advised, or commanded another to commit a crime.

There are many caveats to each of these as courts have to follow different standards for proof of the crime from the original crime. Most incomplete crimes are punished at a lower class than the complete crime, though there are exceptions.

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Yes, participation in a crime can still result in a criminal charge. When you are charged with a crime, you are either considered "principal" in the first or second degree. First degree means you either committed the entire crime, orchestrated somebody else doing the crime, or committed the crime in concert with others. A person is principal in the second degree if they aid somebody else in committing a crime, though their actions may have not been explicitly criminal.

For example, being the driver to help others escape a robbery is a form of participation in crime. In most cases, participating in a crime will result in the same kinds of penalties as committing the full crime directly.

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If a judge dismissed a criminal case against you, it could potentially resurface, but not if the judge dismissed it "with prejudice". This means that the judge determined that the court should not pursue the case again, which can happen when:

  • The accused was clearly subjected to false accusations.
  • The judge's court clearly lacks the authority to pursue the case as filed.

The caveat is that just because a case was dismissed in one court, does not mean it can never be pursued elsewhere. This becomes tricky when a crime can involve multiple jurisdictions within the same state, different states, or include the federal government.

If your case was brought before trial and you were acquitted, the courts in your state cannot pursue a criminal case for the same charges due to the double jeopardy clause of the fifth amendment to the U.S Constitution.

This clause does have limitations, chief among them being that the federal and state governments can pursue a case separately and concurrently, though this is not very common. Additionally, related conduct or lesser included offenses that were not explicitly charged in the first case could still be pursued later on.

No, minor errors or technicalities will usually not result in a dismissal. Simple errors that could easily be accounted for and do not fundamentally challenge the elements of the case will not serve as a loophole to get out of a crime. Mistakes and inconsistencies will only serve your case if they present a meaningful challenge to proving your guilt.

For example, Say you are being charged with shoplifting and law enforcement took written notes from the store-owner that you stole $1,500 dollars worth of merchandise. However, in the audio recording of the interview, the e store owner said it was $1,700. This inconsistency will unlikely help your case as prosecution could easily point to the audio testimony and explain that the written number was misheard but the audio serves as a backup. However, if the audio recording was not taken, and there are several accounts of different numbers with no tangible evidence of what was stolen, these errors can make it difficult for prosecution to prove how much you stole. In either case, most of these issues will be addressed in proceedings, and will not be simply dismissed.

Crimes generally consist of an action (or failure to act) and a criminal state of mind. The state of mind, or "mens rea", is the required set of thoughts, beliefs, desires, or lack thereof required as an element of a crime. Types of state of mind include:

  • Intentionally: The person intended to commit the criminal act or intended for a certain outcome. 
  • Knowingly: The person was aware of the actions they were taking or omitting.
  • Negligently: The person had a reckless disregard of the consequences of their actions or omissions.
  • Willfully: The person committed an act without legal excuse or justification, or to deliberately violate the law.

There are all sorts of caveats to state of mind and determining what a person's may have been during an offense. Some crimes do not require a state of mind, and others may require several at the same time, or allow for different state of minds. State of mind can also play a role in the severity of charges, such as murder, where a murder with intent is a more serious crime than one resulting from negligence.

 

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Law Enforcement Questions

If you get arrested you should follow the golden rule: Invoke your Miranda Rights and Remain Silent. We understand that getting arrested can be stressful, as well as any interaction with the police, so suggest you be mindful of the following:

  • Ignore all threats of prison or jail time from police.
  • Ignore their persuasion to "help" you by asking for more information, it will not help you to speak with them further.
  • Do not offer written confessions and testimonies, they still fall under remaining "silent".
  • Remind yourself that you are not guilty just because you got arrested, try to remain calm and comply within your rights.

 

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No, officers are not required to tell you that they are officers even if you ask them directly. There are many circumstances where they may deliberately represent themselves as somebody else in order to catch somebody in a criminal act.

It is important to also know that if they do so, this does not been they have committed entrapment unless you would have under no circumstances committed a crime without their solicitation.

Usually no, it will not necessarily involve throwing out the entire case against you. However, if you can prove that you were held in their custody (i.e. formally arrested) and they did not read you your Miranda rights, the statements you gave them after the fact can be suppressed.

If enough evidence is suppressed that makes it insufficient for prosecution to continue, the case could be dismissed, but often there will be other pieces of evidence available to carry on the case.

Usually no, as the judge will likely give the arresting office several chances to make it to court to offer their testimony. If the officer fails to show several times and the prosecution's case relies heavily on their testimony, they may be forced to dismiss the case.

This does not happen very often, and can only happen in traffic, minor misdemeanor cases, and sometimes DWI arrests.

Rarely, and especially not if your other option is to have your case represented by an experienced attorney. Confessing to a crime is giving the prosecution a win, and should only be considered carefully if presented with a plea arrangement that your lawyer sees as favorable. Experienced private defense attorneys will usually recommend not admitting guilt and pursuing trial, while public defenders may favor a plea as it is less time-consuming and they lack the time and resources to find all the problems in the prosecution's case against you.

Sometimes, but there's no guarantee that this officer will even be present for trial to testify in your support. If any promises or statements have been made in your support by officers or witnesses, make sure to let your attorney know as they will work to have them appear at trial to offer a favorable statement.

However, even if the officer does tell the court that you were cooperative, there is no guarantee this will help your case. Cooperation is only considered under some circumstances in sentencing, and could be disregarded.

No, the implied consent laws in North Carolina can be confusing, but if you are pulled over for a DWI, you do not need to take a sobriety test right outside your vehicle for the officer and you will not be criminally or administratively penalized for saying no. However, the officer will likely proceed to arrest you and take you to the station. There, you can face immediate administrative penalties for refusing the blood test, and you are required to take a breath test at the station.

We recommend that you do not take a field sobriety test, as they are subject to a great deal of error and will make fighting a DWI charge more difficult.

 

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Witnesses, Evidence, and Defense Strategy

Yes, it actually happens all the time. Granted, this issue is highly dependent on the nature of the crime and circumstances, and there will likely be other elements that are not explicit forms of evidence that will play a role. For example, if the circumstances of the accusations make it unlikely for any other witnesses to have been present or other forms of evidence to be available, the prosecution's case can still be heavily reliant on the credibility of a single witness against the characteristics and credibility of the defendant.

Yes, it is both admissible and highly common, despite numerous issues with its reliability and validity. Eyewitness testimony can be unintentionally wrong, which is why it is important for your lawyer to cross-examine witnesses to challenge them on consistency, bias, perception, and other matters related to what they may have seen.

Not necessarily. Criminal charges are processed by the state or federal government and not by an individual. If an alleged victim does not want to participate or testify, prosecutors may decide to dismiss the charges if there are no other witnesses or convincing sources of evidence.

Essentially, the determination to dismiss a criminal charge rests with the prosecution, or under some circumstances, the judge, not a witness. Even if the accusing witness wants to have the charges dismissed, the prosecutor is not required to do so upon their request.

No, in fact a substantial basis for a lot of this work does not meet the standards of peer review and scientific rigor that we expected in most other fields. Whether it is handwriting analysis, DNA testing, or fingerprint tests, law enforcement likes to overlook the error and bias these tests are subjected to, unless the defense puts up a good challenge.

Despite the issues with the practice, they are commonly used to analyses evidence and assign guilt. This is not always a bad thing, people have been exonerated of crimes due to improved DNA testing. However, when its brought against a defendant it needs to be challenged by a knowledgeable lawyer and expert witnesses. 

It depends. Typically, the prosecution cannot present prior convictions as evidence to prove guilt by showing a pattern of criminal behavior. However, if the credibility of the defendant is in question, which is the case in trials involving fraud or dishonesty, they may be able to do so. It can also be brought up if the defendant insists on taking the stand as a witness, which is one of many reasons why defense lawyers encourage their clients to not do so if they do not have to.

Otherwise, the judge will have to weigh the value of evidence of a prior conviction in helping the jury determine the defendant's credibility against how it can influence undue prejudice.

It depends. Laws have a "statute of limitations" on when charges can be brought against a defendant some time after committing an offense, but it is dependent on the type of crime. 

In North Carolina, there is no statute of limitations for felony crimes, so you can be charged with a felony at any point that evidence is discovered. For misdemeanors, most of them have a 2-year statute of limitations. except for "malicious misdemeanors". The law poorly defines such misdemeanors, but we find that it typically includes "continuing offenses" like child abuse, where the offense is not considered to end until the child turns 18.

 

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No, if you are brought on the stand you should not tell lies. There's an exceptionally high chance that you will get caught in the lie, which will subject you to further charges and hurt your chances to be found not guilty of get a reduced sentence. Any credible lawyer you hire will not agree to tell blatant lies for you either, it is important for them to understand all of the known facts and tailor an honest defense.

Yes, but keep it to facts and observations rather than value judgements. You don't need to tell your lawyer whether you think you are guilty or innocent, that will be up to the judge or jury to determine. What your lawyer needs from you is to be candid so they can be as well prepared as possible to defend you.

You may not want to reveal the bad things related to your charges, but it is important to understand that while your lawyer will not lie for you, they are not required to reveal everything you said to them in confidence. Your lawyer will not be put on the stand and asked any questions about what you discussed, so there are no downsides to being honest with your lawyer.

Defense strategy has to be thoroughly tailored to the specific case, so we never follow a simple template for how to handle any case. Defenses also have different outcomes, some absolve guilt completely, while others only disprove a more serious offense but admit to a lesser offense.

Your attorney should help you understand what approach they plan to use and why they believe it will work best.

 

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A target letter, such as this sample letter, is a notification that you are under investigation for having committed a federal offense. They usually advise you of your right to a lawyer and your right to remain silent throughout the course of the government’s investigation.

A grand jury subpoena is a document issued by the United States Attorney’s Office which compels you to testify before a grand jury. 

 

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