1. Should I talk with law enforcement?
2. What is the difference between a felony and misdemeanor charge?
3. What is the maximum sentence for misdemeanors?
4. What is the maximum sentence for felonies?
5. What is the procedure for a criminal case?
   1. What happens prior to indictment?
   2. What is an arraignment?
   3. What is a pretrial conference?
   4. What should I expect at trial?
6. What do I do if I have not retained an attorney by the arraignment?
7. How should I dress for court?
8. What can I expect from my attorney?
9. What will this process cost?

1. Should I talk with law enforcement?

Do not discuss any potential criminal matter with a law enforcement officer or anyone else, unless you have discussed your case with a criminal defense attorney first. Politely tell the law enforcement officer that you do not want to discuss anything with them without talking to an attorney first.

When the officer allows you the opportunity to use the telephone – use it immediately. Make a call to any attorney you know. If you don't know an attorney, ask to use the yellow or business pages to find one or ask to call the telephone company's directory assistance number. A good place to start in the phone book might be under the listing for your local criminal law bar association. Make the call even if you don't know or have a lawyer, if your lawyer is beyond local distance dialing, or your arrest time is not during regular business hours of most law offices.

Here, you should know that most law offices answer their phone even after closing through use of an answering service. Many of these services can actually connect you directly to an attorney at his home.

Upon reaching an attorney on the telephone be sure to ask the office for a chance to speak with the lawyer in private. Where the law enforcement officers refuse to allow you privacy, they violate your right to an attorney. Absent giving you privacy, the police provide you with only a warm body to talk to on the telephone. This is so because the lawyer, in order to maintain the attorney-client privilege and to protect your right to remain silent, must tell you not to say anything. Here, it is axiomatic that a lawyer can only give you proper advice where you can first tell him what has happened (i.e., he applies the law to the facts and he accordingly advises you what to do).

Keep in mind that both our Federal and State Constitutions guarantee that you have the right to remain silent and for most people who find themselves cited with a traffic or criminal violation wish they had used it! If the law enforcement officer has not advised you that you are under arrest, ask him or her if you are presently under arrest or if you are free to leave.

Where the officer indicates that you are under arrest then you should immediately inform him of your desire to have an attorney present for any further questions. Do not refuse or agree to discuss anything with the officer. Rather, tell the officer you want advice from a lawyer to help you decide if you will discuss the matter with them. Never volunteer any information to them and, stick to your right not to incriminate yourself.

To further explain, a law enforcement officer, absent any belief that criminal activity is afoot, has a right to walk up to any person in a public place and talk to them. However, the person may simply walk away. Indeed, our law is clear that the person's action in walking away cannot be used as evidence that he is guilty of something, i.e., that the invocation of a constitutional right cannot be equated to guilt. In such cases where the officer, through use of his law enforcement status, either impliedly or expressly detains the person, he violates the individual's right not to be unreasonably seized.

To lawfully justify a brief detention of a person, the officer must have a specific and articulate reasonable suspicion that the person is presently involved in criminal activity. This justification cannot be legally made on the basis of a simple hunch or a gut feeling. The detention must be narrowly limited in both its duration and scope so as to allow the officer to maintain the status quo so that he may dispel or affirm his reasonable suspicions. If the officer waits too long or unreasonably proceeds beyond the purpose for his initial detention, then he again violates the person's constitutional right not to be unreasonably seized.

Finally, where the officer actually arrests the person he must have a greater quantum of evidence than merely a reasonable and articulate suspicion, but probable cause to believe a crime has occurred. “Probable cause” has been defined by our courts as a measure of evidence that would lead a reasonable person, based on that person's experience and training, to believe that a crime has occurred. This probable cause standard can also be stated that there is some evidence as opposed to proof beyond a reasonable doubt that is required to convict a person of a crime, or the preponderance of the evidence standard (i.e., 51%) to win a civil lawsuit.

In any situation where an officer detains a person on less evidence than a reasonable and articulate suspicion or arrests a person on less evidence than probable cause, he violates that person's constitutional rights not to be unreasonably seized. The remedy for this violation is to exclude from the prosecution's case any and all evidence that was derived from the violation.

2. What is the difference between a felony and misdemeanor charge?

Felonies tend to be more significant criminal charges as well as have more significant penalties imposed than misdemeanor charges. Felonies carry a minimum possibility of imprisonment in a state correctional facility for more than six months, while misdemeanors carry a maximum possible penalty of local jail time for up to six months. Further, felony charges are generally heard in the Common Pleas Court, while misdemeanors are heard in Municipal Courts.

3. What is the maximum sentence for misdemeanors?

First Degree Misdemeanor (M-1): up to six months in jail and/or a fine of up to $1,000.

Second degree Misdemeanor (M-2): up to ninety days in jail and/or a fine of up to $750.

Third Degree Misdemeanor (M-3): up to sixty days in jail and/or a fine of up to $500.

Fourth Degree Misdemeanor (M-4): up to thirty days in jail and/or a fine of up to $250.

Minor Misdemeanor (MM): punishable by a fine of up to $150 and possibly community service.

4. What is the maximum sentence for felonies?

First Degree Felony (F-1): Up to 10 years in prison and/or a fine of up to $20,000.

Second Degree Felony (F-2): Up to 8 years in prison and/or a fine of up to $15,000.

Third Degree Felony (F-3): Up to 5 years in prison and/or a fine of up to $5,000.

Fourth Degree Felony (F-4): Up to 18 months in prison and/or a fine of up to $5,000.

Fifth Degree Felony (F-5): Up to 12 months in prison and/or a fine of up to $2,500.

5. What is the procedure for a criminal case?

A criminal case begins with a complaint alleging a charge and a short statement of the facts creating grounds for the offense. For a misdemeanor this may be a traffic ticket or other similar summons and complaint. For a felony this may be a city/state affidavit signed by a law enforcement officer or indictment issued by the grand jury.

a. What happens prior to indictment?

A felony charge can be brought by two methods:

1. The first is by a law enforcement officer issuing a city/state affidavit in the municipal court and a preliminary hearing will be held. At the preliminary hearing you will be given the choice to:
   1. have a hearing and have the judge determine if there is probable cause (some evidence of the allegations) to allow the prosecutor to proceed;
   2. to waive the preliminary hearing and consent that there is some information on which to base these allegations. If you waive the hearing, or go forward with the hearing and the judge determines that there is probable cause, your case will be bound over to be presented to the grand jury.
2. The second method in which a felony charge can be brought about is through the issuance of an indictment by the grand jury. When the facts surrounding your case are presented to the grand jury, the grand jury will again use the probable cause standard (i.e. is there some evidence?) to determine if formal felony charges shall be brought against you. If the grand jury does not find some evidence behind the allegations, then a "no bill" will be issued and no indictment will be forthcoming. If the grand jury finds there is some evidence forming a legitimate basis for the charges then the grand jury will issue an indictment formally charging you with this offense.

b. What is an arraignment?

Whether you have a misdemeanor complaint or felony indictment, you will be presented with a copy of it and summoned, or arrested, and will be required to appear for arraignment in either the Common Pleas Court (for a felony) or municipal court (for a misdemeanor). At the arraignment the judge is required to inform you of the charges against you as well as the maximum penalties that correspond to the charge. At the arraignment you will enter a plea of “not guilty”, “no contest” or “guilty”. Bond will be addressed, and a scheduling conference or pretrial conference date will be set about 30 45 days from the arraignment. The prosecutor will provide your attorney with the discovery in your case and will begin discussing plea bargains and sentencing recommendations.

c. What is a pretrial conference?

At the scheduling conference or pretrial conference we must inform the judge 1) if you are changing your plea or are taking the matter to trial; 2) if there are any plea bargains; 3) disclose any potential witnesses and evidence; and 4) hear any pending pretrial motions filed on your behalf. If your decision is to take your case to trial, the court will set a trial date. If you enter into a plea bargain/sentencing recommendation it will happen at this hearing. If you decide to change your plea, in some cases your case will be set for a separate sentencing hearing and the court will order you to participate in a pre-sentence investigation prior to the sentencing hearing. The pre-sentence investigation is essentially an in-depth background check that will be presented to the court and can be very influential in the courts determination of its sentence.

d. What should I expect at trial?

The county in which your case is to be heard will determine the length of your trial. The jury trial process can be a lengthy one depending on the county in which we are presenting your case and the issues being discussed. If you decide that you want a jury trial, your trial fees will have to be paid in full five days prior to the jury trial date. Payment for jury trial is not an option. Therefore, start budgeting for trial now.

The first thing we deal with is the motions in limine to exclude/preclude or limit evidence. Next the jury selection or “voir dire” process begins. In this process questions are posed to prospective jurors regarding their bias, prejudices and fitness to stand as a juror in a case. In Ohio, we have eight person juries in misdemeanor cases, twelve person juries in felony cases and usually one or two alternate jurors as backup depending on the length of the trial.

After the jury is selected then both the prosecutor and defense attorney has the option of delivering an opening statement. After the opening statement, the prosecution, since it has the burden of proof beyond a reasonable doubt, starts calling their witness against you. After each witness of the prosecution and before their next witness is defense counsels opportunity to cross-examine the witnesses the state places against you.

Like a skilled surgeon cutting open a patient to expose the problems, our cross-examination of the states witnesses should do no less. Rigorous cross-examination is the only engine for truth in a criminal trial. The State will rest after their last witness and the defense may or may not put on a case. Depending on the state of the case, we may or may not call any witnesses to stand. It is important to provide your attorney with the names of all witnesses you believe are pertinent to your case early in your discussions so they are not precluded from being called at trial. After we put on our case, the prosecution has an opportunity to call rebuttal witnesses. After that, the judge, the prosecution and defense will discuss how to instruct the jury on the applicable law. Once that has been accomplished both counsel will engage in closing argument.

After closing argument, the jury will then be sent to deliberate and attempt to reach a verdict. Sometimes during deliberations, jurors will pose questions to the court and counsel will argue about the appropriate responses. The deliberation process will yield one of two outcomes, a verdict or an inability to reach a decision resulting in a hung trial/mistrial. All jurors must agree in order to convict and it will take only one juror to hang the jury requiring a mistrial. Depending on how the vote went the prosecutor has the option of re-trying the case at a future date, offering a plea bargain to a reduced charge, or dismissing the case. The court could also dismiss the case should the prosecutor not want depending on the split of the jurors.

6. What do I do if I have not retained an attorney by the arraignment?

In most courts, the judge will grant you a reasonable continuance if you ask for time to consult with an attorney if you have not already done so. If you do not have an attorney after the arraignment hearing, as soon as possible begin your search for an attorney familiar with that specific court and one who specializes in that specific area of law.

7. How should I dress for court?

You are required to appear at all scheduled hearings and should remember to dress appropriately. If you are scheduled to appear in court, wear a suit, pants with a shirt and jacket, or pants with a shirt and tie. Women should dress professionally as well. Please do not wear sunglasses, a baseball cap or shorts. When going to court dress and act like you would when applying for a job or attending a funeral.

8. What can I expect from my attorney?

Your attorney should be willing to discuss the specific facts of your case with you, the law surrounding your case, your possible defenses, and the procedure of your case. You are entitled to have your telephone calls returned in a reasonable time period and your questions answered. You are entitled to copies of all correspondence, to and from the prosecutor, the court as well as other possible witnesses. You are entitled to copies of all pleadings filed at the court and all entries from the court. You are also entitled to an attorney who advocates your position, but also advises you of the realities of your case so that you can make an informed decision. Your attorney should treat you as if he/she would want to be treated.

9. What will this process cost?

Depending on the facts of your case and its outcome, there may be penalties, fines, court costs, reinstatement fees to the BMV, restitution, supervision fees for probation and cost of your jail stay and/or alcohol program to pay as well as your attorney fees.

You may be offered you an hourly rate fee or a flat fee schedule depending on your preference and the facts of your case. Each case is unique and requires a different fee schedule. As a result a more accurate estimate of your attorney fees will be provided after an office consultation.