Vincent Rivera at the Johnson County Courthouse

Criminal Defense FAQ's

29 Frequently Asked Questions Answered By Attorney Vinnie Rivera

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Do criminal defense lawyers ask if their clients are guilty?

A general rule, defense attorneys need to be very careful about what they ask their clients. The reason is ethics. Attorneys cannot allow a client to lie to the court.

For example:
A client tells their lawyer, "I committed a crime."
The client later tells their lawyer "I am going to testify that I didn’t do it."

The attorney cannot allow the client to change their story/lie to the court. However, no matter what, an attorney is obligated to defend their client. A client can confess guilt to their lawyer. Their lawyer can argue all the facts supporting reasonable doubt and why they’re not guilty. The only limitation is allowing the client to take the stand and lie to the court and/or jury.


Do criminal defense lawyers ask if their clients are guilty?

Attorneys may report that a client is going to commit a crime, but they are not required to.

Attorneys can not report past crimes that a client has told them in confidence. This is protected by attorney client privilege.


What are some examples of duress in criminal law?

Duress in the context of criminal law generally refers to the conditions surrounding a confession or "consent" to search.

Examples of duress include:

  • Being held in custody without food, water, bathroom, or sleep for a long time before “confessing” to a crime.
  • Threats or intimidation

If you were under duress at the time of a confession or "consent" to search, your attorney can file a motion to suppress that evidence.

 Whether or not you are under duress is a question that will be decided by the judge.


What kind of warrants are extraditable across state lines?

There are two kinds of arrest warrants: extraditable and non-extraditable.

If the warrant is non-extraditable and you’re picked up in another state you will be released.

If the warrant is extraditable you will be arrested and held in custody until the “issuing State” transports you.

Whether or not a warrant is extraditable is decided at the time the warrant is issued.

Generally, more serious charges are extraditable, and less serious offenses are non-extraditable.

Why? Because of money. The “issuing State” must pay the arresting State/County jail fees plus the costs of transportation.

For example: If someone is picked up on an extraditable warrant, for a minor offense, 500 miles away. It may take some time to have them transported to the “issuing State”. If that is the case the issuing State will be left with a hefty bill for housing and transportation, over a minor offense.


How to locate an inmate of the US Marshals?

Federal inmates can be located through BOP’s website: https://www.bop.gov/mobile/find_inmate/


Can a police officer pull you over on private property?

Yes, if the officer has reasonable suspicion of criminal activity they can pull you over.

However, on private property, many traffic infractions may not apply and may not serve as a basis for a stop.

Under “Open Field Doctrine” the 4th amendment does protect you simply because you are on private property.


How to bail someone out of jail?

Generally, these are your bail options:

  1. Use a bail bondsman. Here you pay 10% to a bondsman.
    1. Pro: you only have to pay 10%
    2. Con: the 10% payment is non-refundable and cannot be applied to court costs, fees, or fines.
    3. Con: if the defendant “runs”, then the cosigner is responsible for the entire bail amount
  2. Post bond to the court. Pay full amount of bond
    1. Pro: you get the money back at the end of the case.
    2. Con: you have to come up with the full amount or signature bond essentially a “promise to appear” for free.
  3. ORCD. These are not used often, but here 10% is paid to the court (not a bondsman), and that 10% is refundable at the end of the case.

How do I know if I’m being investigated by the police?

If they are doing their job right you won’t.

Sometimes, in federal investigation, you will receive a “target letter.” This is essentially a letter saying that you are being investigated and giving you a chance to make a statement.
*Contact a criminal attorney immediately before making a statement.*

In state investigations, sometimes law enforcement may contact you to make a ‘voluntary statement” prior to arrest.
*Do not make any statements and contact an attorney immediately.*


What does it mean when a bond is revoked?

Bond can be revoked for being arrested on a new charge.

Failing to comply with bond supervision or failure to pay your bondsman.

If bond is revoked, you will be sent back to jail and a new bond should be set by the judge.


How long does an inmate have to serve on a 8 year sentence?

In Kansas Prison—Inmates can receive either 0%, 15%, or 20% of “good time credit” sentence reduction.

Additional reductions may be available for “program credit” for example GED course, or drug treatment.

In Federal Prison – Inmates can earn "good time credit” at a rate of 54 days per year.

Additional reductions may be available for “program credit” for example GED course, or drug treatment.


What is the meaning of pending criminal charges?

A pending criminal charge means that charges have been filed, but not resolved.
i.e. no guilty/not guilty finding has been made.


If I plan to commit a crime, should I hire a lawyer first?

It is always a good idea to have an attorney on retainer.

An attorney cannot counsel you on how to commit a crime, but an attorney can consult you on possible penalties, defenses, constitutional protections (Miranda, search, traffic stops) RIGHT TO REMAIN SILENT etc.


Can an adult be tried for a crime they committed as a child?

An adult can be prosecuted for a crime committed as a juvenile.

If the crime is within the statute of limitations. For most crimes this is 5 years.

The adult will be charged in juvenile court because the crime was committed as a juvenile.

However, the prosecution can seek to have the case moved to adult court.


Are all white-collar crimes prosecuted in federal court?

No. Generally every federal white-collar crime has a state crime equivalent.

However, since most white-collar crimes involve the banking system (checks, money transfers, etc.) Federal courts have jurisdiction.

Thus, you could be charged federally for most white-collar crimes.

For more information about white collar crime visit https://riveralawoffice.com/federal-crimes/white-collar-crime/


What do you look for when hiring a criminal defense lawyer?

Do’s:

  • Talk to several attorneys.
  • Be clear about your expectations.
  • Be honest about your criminal history.
  • Be honest about what happened.
  • Be clear about attorney fees: Hourly or flat fee. If flat fee, ask “what does that cover?”

Find an attorney that specializes in what you need: trial, appeal, criminal, federal.

Interview the attorney:

  • Do they have experience with this type of case?
  • How many years in practice?
  • What motions would you file?
  • What is our trial strategy?

Don’t:

  • Make your decision based solely on price. As they say, "there is nothing more expensive than a cheap attorney."
  • Confuse years practicing law with actual experience.
  • Assume that all attorneys have the experience or motivation to fight your case.

"Read between the lines."

  • How much of your attorney meeting was spent talking about your case?
  • How concerned was the attorney with details of what happened?
  • Did they tell you about potential legal motions?
  • Did they tell you what your trial defense would be?

As opposed to:

  • How much of your meeting was spent discussing money?
  • How quickly did the attorney bring up money?
  • Did they seem more concerned about payment than about your defense?

Be wary of awards.
Many attorney’s websites are loaded with all the awards, and recognition's they’ve received.

Some awards are legitimate and based on actual performance.

Frankly, many “awards,” are just paid advertisements.

Usually, an attorney receives a letter saying, “you’ve been nominated as the best attorney in 10,000 years.” The catch is, you have to pay to join their organization in order to receive the award. Essentially, these awards are just marketing tools in disguise.

For example: Once, I received a letter stating that I’ve been selected as one of the “10 best female attorneys.” All I needed to do was pay, they would send me the award, and something to put on my website.

How do I evaluate an attorney’s experience?

Don’t confuse years practicing law with actual experience. An attorney may have 20 years of experience, yet spent the last 10 years not going to trial, not filing motions, and simply pleading people out.

All attorneys are salesmen to some degree, so take what they tell you with “a grain of salt.”

Evaluate their experience by looking at:

  • How many trials have they had?
  • How often are they in trial?
  • What is the most serious case they’ve tried?
  • What is the most complex case they’ve tried?

For more information check out our video Hiring An Attorney


Is AVVO a reliable source to determine if a lawyer is good?

AVVO is a good place to start think of it more as a directory of attorneys.

There are some very good attorneys who have mediocre AVVO profiles and there are mediocre attorneys with fantastic AVVO profiles.

At the end of the day, you need to meet with the attorney and decide for yourself.

https://www.avvo.com/attorneys/66061-ks-vincent-rivera-3560654/reviews.html


What are some of the most common examples of capitol crimes?

A "capitol crime" is an offense where the government seeks the death penalty.

Whether an offense is can be capitol or not depends on on 1) the law, 2) prosecutorial discretion.

In other words, no offense is mandatory death penalty. Rather, it becomes a death penalty case when 1) it legally can be a capitol case and 2) when the prosecutor wants to seek the death penalty.

There are many cases when the prosecutor could seek the death penalty but chooses not to.

The most common capitol crime is pre-meditated murder.

However, under Federal law, there are about 41 different capitol crimes ranging from espionage and treason to a variety of murders.


What is the average win rate for trial lawyers?

Generally, prosecutors have higher win rates than defense attorneys.

Some of the reasons for this are:

  • Prosecutors can dismiss cases rather than take a loss.
  • Prosecutors can offer exceptionally good plea bargains when they have bad cases.
  • The statues are pro conviction.
  • The case law is pro conviction.
  • Most juries are pro conviction.

What are the pros and cons of the jury nullification?

What Are The Pros And Cons Of The Jury Nullification?

For example, a client is guilty of marijuana possession, but the jury finds them not guilty because they think marijuana should be legal.

Jury nullification is when the jury refuses to follow (nullifies) the law.

In other words, “yes, they're guilty, but we don’t care, so we're finding them not guilty.”

Pros of Jury nullification: It is the epitome of a jury of your peers.

When was the last time your legislator called for your opinion before passing a law?

Through jury nullification, the community can truly impose their standard of the law.

Note: In Kansas, defense counsel cannot explicitly tell the jury that they can nullify! That’s funny, it’s like they’re afraid of what juries really think of the law.


What are some examples of ex post facto law?

Ex post facto is when something was legal but is now illegal.

For example: Imagine that a city passed an ordinance making it illegal to grow tomatoes. You could not be prosecuted for growing tomatoes last year before it was illegal. Such a prosecution would be violate ex post facto laws.


Are poor people more likely to be criminals than the rich?

Yes, for a variety of reasons including:

  • Poor neighborhoods are more heavily policed.
  • Poor people are less likely to be able to make bail increasing the chance they will take a plea (conviction) in order to get out.
  • Poor people often don’t have access to the best attorneys.
  • All of the above is reversed for rich people

What are examples of strict liability crimes?

With a strict liability offense it does not matter what your intent was. All that matters is if you did it not why or whether you meant to commit the crime.

For example: DUI is a strict liability offense. It doesn’t matter that you did not intend to be over the legal limit. It only matters that you were over the legal limit.


Why is criminal sentencing so unequal?

Every state has it’s own sentencing structure, so the answer is a little different with each state. There are several factors that lead to unequal sentences:

  1. Institutionalized reasons: minorities are dis-proportionally victimized by the system. Accordingly, they often have more significant criminal histories and are more likely to have multiple case pending.
  2. Prosecutorial discretion: Often, prosecutors can dictate a sentence simply by what they choose to file. Some crimes carry specific sentences that dictate to the judge a sentencing range.

Are there different types of prisons depending on the crime?

There are different security levels within the prison system.

Generally, your security level is based on a formula that includes age, criminal history, history of escape, history of violence, current crime, and education.


What is the meaning of discretionary sentencing?

Discretionary sentencing is just that, when a judge has discretion on the sentence.

The majority of crimes prescribe a “presumptive sentence” allowing the judge to exercise a limited level of discretion within the “presumptive” range.

However, often, a judge can “depart” from the “presumptive” range, in order to do this the judge must make special findings.


What should you never say to a judge?

During the majority of you case, you will not speak to the judge.

During the limited times that you do, just answer their question and do not try and defend yourself.

At sentencing you will have the opportunity to address the court, if you choose.

Although it may be true, avoid blaming the victim, the cops, or the system. 97% of cases plea out.


They didn’t read me Miranda. What is a voluntary statement?

Miranda requires you to be “in custody” and subjected to “interrogation”.

Think of it as

Miranda = custody + interrogation.

So, if you are not “in custody”, then you don’t get a Miranda warning?

Often, police will not “take you into custody” to avoid telling you about your Miranda Rights.

Some simple examples are: Questioning via a phone call Asking you to “voluntarily” come to the station.

During an interview, telling you it’s “voluntary” and you can leave at any time.


Should I talk to the police?

IF They HAVE enough to arrest you already THEN You can’t talk your way out of it SO shut up and Ask for a Lawyer.

IF They DON'T HAVE enough to arrest THEN Don’t talk yourself into handcuffs SO shut up and Ask for a Lawyer.