Criminal Defense FAQ
Frequently Asked Criminal Defense Questions
Q: What is the difference between a felony and a misdemeanor?
A: Most people are aware that felonies are more serious crimes than misdemeanors; however, the definitions of felony and misdemeanor differ from state to state. In Pennsylvania, crimes are divided into four categories: homicide, felonies, misdemeanors and summary offenses. Felonies and misdemeanors are further broken down by degree, with corresponding maximum penalties as follows:
First-degree felony (F1): 20 years and a $25,000 fine
Second-degree felony (F2): 10 years and a $25,000 fine
Third-degree felony (F3): Seven years and a $15,000 fine
First-degree misdemeanor (M1): Five years and a $10,000 fine
Second-degree misdemeanor (M2): Two years and a $5,000 fine
Third-degree misdemeanor (M3): One year and a $2,500 fine
Summary offense: The maximum penalty for most non-traffic summary offenses is 90 days in county jail and a $300 fine.
Q: What should I do if I am arrested?
A: If the police arrest you, do not say anything to them that could incriminate you and do not consent to any searches. If the police ask you questions, you should state that you are invoking your right to remain silent unless and until you have had a chance to consult with an attorney. Normally, police will stop asking questions when you invoke your Fifth Amendment rights.
Do not act disrespectfully toward the police or give them a hard time in any way. Always be respectful and polite, even when refusing to speak to the police or declining consent to a search. Whatever you do, never resist arrest, verbally berate an officer or try to run from the police, even if you believe that you did not do anything wrong. If you are, in fact, guilty and the best course of action down the road is to seek a favorable plea agreement, your cooperation or lack thereof at the time of arrest will have a major influence on how favorable your plea agreement will be.
Q: What is the role of the investigative grand jury?
A: Grand juries are no longer used in Pennsylvania for routine, criminal cases. Rather, they are used only in complicated cases involving serious charges and usually numerous potential defendants. These cases tend to be those in which traditional law enforcement methods have failed to build solid cases against suspects. The purpose of bringing a case before the investigative grand jury, then, is to force witnesses to testify in hopes that this will lead to sufficient evidence to bring charges against at least some of the suspects. Most investigative grand jury proceedings are brought by the Pennsylvania Office of the Attorney General.
If you are subpoenaed to testify before the investigative grand jury, there is a good chance that you are a suspect or, at the very least, someone close to you is a suspect. Wives and girlfriends of suspects are routinely subpoenaed to appear before the investigative grand jury. You should never appear before the investigative grand jury without first consulting with a criminal defense attorney.
Q: What is the role of the prosecutor?
A: The prosecutor is the attorney who represents the federal, state or local government in a case against a criminal defendant. In Pennsylvania, each of the 67 counties has a district attorney who serves as the chief law enforcement officer in the county. Most district attorneys’ offices also have assistant district attorneys with varying degrees of authority. In bigger cases, the police will not file charges without first seeking approval from the district attorney or an assistant district attorney.
Due to the increased prevalence of mandatory minimum sentences, prosecutors have more power than ever before. For example, in most felony drug cases, the prosecutor has more power over sentencing than the judge. Because prosecutors now have so much power, the treatment of similarly situated defendants will often vary tremendously from county to county, based upon the policies of the district attorney in a given county. For example, a felony drug offense that would result in probation in Philadelphia could result in a state prison sentence in Mifflin County.
Q: What is the difference between probation and parole?
A: Probation is a type of criminal sentence that allows a person to stay in the community rather than serve time in prison, as long as he or she complies with certain conditions, such as regularly reporting to a probation officer, refraining from alcohol and drugs, remaining employed or in school, not changing residences without permission and not committing further crimes. Parole is the supervised release of a prisoner from incarceration into the community before the end of his or her sentence. Conditions of parole are similar to those of probation.
Usually, if a defendant violates probation, he will be resentenced to a period of incarceration. If a defendant violates parole, he will normally be sent back to prison. Thus, a person who receives a sentence of probation for possessing drug paraphernalia and a small amount of marijuana would normally receive a sentence of probation, but if he continues to smoke marijuana while on probation, he will end up in jail, even though his only crime was the personal use of marijuana.
Q: The police did not even read me my rights. Does that mean that the arrest is invalid and the charges will be dismissed?
A: No. There is a commonly held misconception that police are required to read a suspect his Miranda rights and that if they fail to do so, the arrest is so flawed that the charges will be dismissed. The remedy is not dismissal of the charges, but suppression of the confession. If the police fail to read a suspect his rights, then anything the suspect says cannot be used against him at trial. Likewise, if the police read the suspect his rights and he invokes his right to remain silent or to speak to a lawyer and the police nevertheless continue to question him, then nothing the suspect says as a result of this questioning can be used against him at trial.
In some cases, the police would not have a solid case without a suspect’s confession. In other cases, the evidence is so strong against the defendant that the case can be successfully prosecuted even if the confession is not admissible at trial as a result of a Miranda violation. Imagine the following scenario: A soon-to-be defendant walks into a bar in the town where he has lived all his life, sees the man that the entire town knows is having an affair with his wife, pulls out a gun and shoots his wife’s lover in the back in front of 20 people who all know the defendant. The bartender calls the police, who then stop the defendant on the sidewalk and ask if he just shot the guy who is having an affair with his wife. The defendant answers yes without having been read his Miranda rights. In such a scenario, the confession would be inadmissible, because the police had probable cause to make an arrest and should have read the defendant his rights. However, the prosecution still has a motive and 20 eyewitnesses to the shooting who can testify that the defendant shot the victim and that it was not in self-defense. Barring jury nullification, the Commonwealth could win a conviction even without the confession.
Q: My offense is minor. Do I really even need a lawyer, or can I just handle this on my own?
A: No offense is minor when you are the one charged. Even relatively minor offenses can have serious long-term consequences. For example, a conviction for underage drinking or drug possession will result in a loss of your driver’s license, even when the offense had absolutely nothing to do with driving a vehicle. A drug conviction will eliminate your eligibility to receive federally subsidized student loans. Any type of non-traffic offense convictions can jeopardize your chances of being accepted into certain graduate school programs or being hired in certain professions, such as teaching. If you hire an attorney, you may be able to successfully fight the charges, or the attorney may find ways to lessen the consequences of the offense.
Q: I’m guilty. I have no defense. I just want to plead guilty and get this over with. Should I even bother getting a lawyer?
A: Yes. You should always have an attorney when charged with a misdemeanor or felony and even for some summary offenses. Most judges will be angry or annoyed if you show up to court to face criminal charges without a lawyer. If you cannot afford to hire an attorney, you should apply for representation by the public defender’s office.
Even if you are guilty and have no defense, a skilled lawyer may be able to present mitigating factors to the judge and/or prosecutor, which leads to a more favorable sentence or plea agreement. For example, your lawyer may convince the judge to give you probation or house arrest instead of jail time or he or she may convince the prosecutor to drop or reduce some of your charges pursuant to a plea agreement.
There are some cases in which a defendant is factually guilty, but the police obtained evidence in a manner that violated the defendant’s constitutional rights. If this is the case, the defense attorney can file a motion to have this evidence “suppressed,” meaning that the evidence will not be used against the defendant at trial. If a judge rules that the evidence was obtained in violation of the defendant’s constitutional rights, the judge will suppress the evidence. In certain cases, such as drug cases, this is usually the end of the prosecution’s case and the charges will be withdrawn. Most people do not know whether they have a suppression issue until they talk to a criminal defense attorney.
Q: It’s just her/his word against mine. Can the police even charge me?
Q: If they do charge me, could I get convicted just based on someone else’s word?
Q: You mean to tell me that someone can just make up a ridiculous story, walk into a police station and have someone charged with a crime?
There is a common misconception that a person can be charged with a crime only if there is hard, physical evidence, not just mere allegations by a complainant. However, if the police believe the complainant, they can charge a defendant, even in the absence of physical evidence. For some crimes, such as terroristic threats, there will rarely be any physical evidence. If the jury believes the word of the complainant beyond a reasonable doubt, the jury could convict a defendant based solely on the complainant’s testimony without any other evidence.
That being said, it is much easier to defend a case in which the only evidence is the complainant’s word. A skilled defense lawyer may be able to rip apart the complainant on cross-examination, pointing out inconsistencies in his or her story or bias and motive for the complainant to falsely accuse the defendant. Without the aid of a good attorney, you could find yourself convicted based solely on the word of your accuser, whereas a skilled lawyer can expose your accuser’s ridiculous story for what it is.
Q: My girlfriend and I got in a fight and I hit her. We made up and are back together. Can she just drop the charges?
A: No. Your girlfriend is actually not the one who charged you in the first place and therefore, she cannot drop the charges. Usually, the only people who file criminal charges in Pennsylvania are members of law enforcement. The exception involves private criminal complaints, which usually are for relatively minor matters such as passing a bad check at Wal-Mart. The vast majority of criminal charges are filed by the police.
If your girlfriend wants the charges dropped, chances are that the Commonwealth will be willing to reduce the charges or offer you a favorable plea agreement. However, the Commonwealth likely will not simply drop the charges regardless of what your girlfriend wants. If you are unwilling to accept its offer, the Commonwealth will likely charge ahead with your girlfriend as an uncooperative, hostile witness, which is not the ideal situation for a prosecutor.
Q: The police want to get my side of the story. Should I give a statement?
A: It depends upon the case. You should never talk to the police without first consulting with a defense attorney.
A cop should always try to get the suspect’s side of the story before charging him or her with a crime, and the cop who fails to do so should expect to be hammered on cross-examination. This is especially true in cases where it is just the complainant’s word against the defendant’s word. However, it is not always in a defendant’s best interest to give a statement to the police. Your attorney can advise you whether it is in your best interest to speak to the police.
If you are factually innocent, the matter might be dropped after you give your side of the story to the police. If your attorney advises you to give a statement, your attorney should be present and you should insist on recording the interview in some manner rather than relying on a written summary of the interview prepared by the police officer.
One danger of giving a statement to the police when you are a criminal suspect is that both you and the police officer will tend to hear what you each want to hear. The cop may have already decided that you are guilty and he will focus only on things that confirm his preexisting opinion while ignoring facts that point to your innocence. Likewise, the cop might tell a suspect that if they give a confession, the cop will put in a good word for you to the D.A. The suspect takes that to mean that if they give a confession, they’ll get a lenient sentence or probation when the cop never actually said that. All he said is that he would put in a good word to the D.A., but that does not obligate the D.A. to make you a favorable plea offer, and it certainly does not obligate the judge to give you a lenient sentence.
Q: This is the first time I’ve been in trouble in Pennsylvania or this is the first time I’ve been in trouble in this county, so will they treat this charge like it’s my first offense?
A: No. Your prior record score is based on all prior non-summary criminal convictions. It does not matter where these offenses occurred, as long as Pennsylvania has a similar law to the one you violated in another jurisdiction. Thus, if you had three DUI convictions in other states over the past 10 years, your fourth DUI in Pennsylvania counts as your fourth offense.
Law enforcement has access to all your prior convictions anywhere in the United States and they will pull the prior conviction record for every criminal defendant to ascertain his prior record.
Q: Are the laws of Pennsylvania different than laws in other states because Pennsylvania is a commonwealth state?
A: No. The fact that Pennsylvania is known as a commonwealth has nothing to do with its legal system. It is a commonly held misconception that the laws of Pennsylvania are more restrictive and less favorable to defendants than in other states because Pennsylvania is officially known as a commonwealth. This misconception appears to be especially prevalent in prisons.
Q: How will I be billed if I hire McClenahen Law Firm P.C.?
A: Most criminal defense attorneys charge a “flat fee” as opposed to an hourly rate, and this is the method of billing preferred by McClenahen Law Firm P.C.. The flat fee could be for the entire case, from initial consultation until post-sentence motions, or it could just be for a “stage” of the criminal case, such as the preliminary hearing. A fee agreement for an appeal, if one is needed, will always be separate from the fee for all matters up to and including post-sentence motions. The fee depends on the seriousness of the offense, the amount of work the lawyer will likely spend on the case and the likelihood that the case will go to trial instead of being resolved pursuant to a plea agreement.
The advantage of a flat fee for the client is that you know how much your case will cost and you can budget accordingly. You will not receive a monthly bill, as you normally would in a family law case or as a business law client. The advantage of a flat fee for the lawyer is that he does not have to keep track of billable hours and send each of his clients a monthly billing statement.
Attorneys are barred by ethical rules from accepting a criminal case on a contingency fee basis. In other words, a criminal defense lawyer cannot charge you only if you win at trial or receive a favorable plea agreement. This is in contrast to personal injury lawyers, who have to work almost exclusively on a contingency fee basis, given the nature of those types of cases.
Your case may have expenses beyond the attorney’s fee. These expenses may include investigator fees, expert witness fees and transcription fees. Normally, the defendant is responsible for these fees, although in rare cases, such as those involving the death penalty, the court may grant a defense attorney’s petition to have the county pay some or all of the defendant’s expenses.
Attorney McClenahen will estimate your expenses at the beginning of representation and ask that you pay these expenses upfront. This money will be placed in an escrow account and used to pay expenses as they arise. If there is money left over at the end of the case, it will be refunded to you. If the escrowed amount does not cover all the expenses, you will need to pay an additional sum of money to cover these expenses.
The initial consultation with attorney Matt McClenahen is free. If you choose to hire him, you will then be asked to sign a fee agreement and make payment prior to the first court appearance in your case.