Everything You Wanted and Need to Know and More About Miranda Warnings

As a criminal defense lawyer in Chicago, Illinois, I get calls every day from individuals that have been arrested and charged with various crimes. I always begin by allowing the prospective client to explain what happened to them and how they ended up in a position where they are now looking to hire a criminal defense attorney. The most common thing I hear as I listen to a client explains his/her case is, “The police never read me my rights.” If you watch television, you understand why the issue of rights is front of mind for almost everyone that is arrested. On television, as soon as a police officer places a suspect under arrest, they immediately read the person their rights. Therefore, in the real world of criminal justice, when a person is arrested, they are surprised and often angered when the officer “neglects” to read the person their rights. In reality, police are not required and in fact should rarely ever read a suspect their rights upon arrest. In this article, I will discuss the situations in which the rights must be read to a suspect.

To begin with, these rights that we all see on television are known as Miranda warnings. The name comes from the 1966 Supreme Court case of Miranda v. Arizona. This was the case that established the requirement of police in certain situations to inform a suspect of certain rights. Prior to this case, there was no such requirement nor is there any mention of these rights in the Constitution. What are these Miranda warnings that must be given in certain situations? Generally speaking, the officer must inform the suspect that: (1) they have the right to remain silent, (2) that anything they say may be used against them in court, (3) that they have a right to have an attorney present during any questioning and (4) that if they cannot afford an attorney, one will be appointed to them at no cost. The officer then asks the suspect if they understand these rights and whether the suspect wishes to speak to the police about the case in question.

Now that we know the Miranda warnings, the question becomes when they must be given. In order for the Miranda warnings to be required, two things must be true. First, the suspect must be in police custody. In other words, the suspect is not fee to leave. Second, the police officer must intend on questioning the suspect. Unless the suspect is both in police custody and about to be interrogated, there is no need for the police officer to read rights to the suspect.

What happens if a person is in custody, they are questioned by police, but the police fail to read the suspect their rights under Miranda? This does not mean that the case must be dismissed. The only consequence is that statement given by the suspect will not be allowed to be used at trial against the defendant. In some cases, this is of little consequence. In other words, if there is a mountain of evidence against a suspect, the prosecutors can likely win a case without use of the defendant’s confession. However, in a close case, a prosecutor’s inability to use a defendant’s confession might result in a finding of not guilty. Unfortunately for criminal defense lawyers, police are trained with regard to Miranda warnings and getting statements dismissed is not an everyday occurrence.

If you or a loved one has been arrested and charged with a crime in Chicago or the suburbs, it is critical that you contact an experienced criminal defense lawyer immediately. A skilled criminal lawyer will ensure that your rights are protected and fight hard to defend your liberty.

Chicago Criminal Defense Law of Accountability - What Does it Mean?

Criminal defendants are often surprised to learn that they can be charged and convicted for the criminal actions of another person. This is known as the law of accountability. According to the jury instructions given in accountability cases, “A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or commission of an offense.”

This does not mean that a person will be charged and convicted because they happen to be with another person that commits a crime. That would be guilt by association and the law does not punish individuals for merely associating with someone who commits a crime. Instead, to be held accountable for another person’s crime, an individual must assist in the planning or execution of the crime and at the same time intend that the crime be committed. An example should help in understanding when a person is or is not accountable for the crime of another.

Let’s take the case of an armed robbery. Assume that Jeff wants to commit the offense of armed robbery and tells his friend Jason. Jeff explains to Jason that he needs Jason to drive him to a certain area of Chicago so that Jeff can find somebody to target. Jason doesn’t want to let Jeff down so he agrees to drive Jeff to a certain area so that Jeff can target someone for a robbery. Jason then drives Jeff to the corner of Clark and North Avenue in Chicago. Jeff jumps out of the car and commits a robbery on an innocent victim. When Jeff finishes, he jumps in Jason’s car and they drive away from the scene. A few minutes later Jason is pulled over by Chicago police and both are arrested. Jason tells police that he did not commit a robbery. Jason further explains that he merely drove Jeff to the scene so that Jeff could commit the robbery. Jason explains that he watched Jeff commit the robbery and then drove Jeff away from the scene so that Jeff would not get caught. In this case, Jason will most likely be joining Jeff in prison. Although Jason did not actually commit the robbery, he is accountable for Jeff’s criminal conduct because he aided Jeff and knew that Jeff would commit the robbery.

On the other hand, let’s assume that Jeff called Jason and told Jason that he needed a ride to the Best Buy in Lincoln Park. Jason agrees to drive Jeff and drops him off at the store. Jason agrees to wait until Jeff returns from the store. After about 5 minutes, Jeff jumps back in the car and tells Jason to speed away. Jason complies and heads quickly toward downtown Chicago. After about 10 minutes of driving, Jeff tells Jason that he just committed a robbery. Jason is surprised but does not call the police on his good friend. Just then, the police pull Jason over and arrest both Jason and Jeff. At trial, the evidence shows that Jason did not know that Jeff would commit a robbery. The evidence showed that Jason merely believed he was taking Jeff to Best Buy. Although Jason did help Jeff get to and from the robbery scene, Jason is found not guilty because he is not accountable for Jeff’s criminal conduct.

The most important thing to remember is that just because you yourself did not actually commit the robbery, pulls the trigger, or steals the car, does not mean you will not be charged and convicted of the crime. If you ever find yourself charged with a crime in Chicago or the suburbs, contact a criminal defense lawyer/attorney immediately.

Jury Trial or Bench Trial? That is a Good Question

In this article, I will give a brief overview of factors to use in deciding the type of trial to select in Illinois criminal courts. It is important to note at the outset that most criminal cases do not proceed to trial. The vast majority of criminal cases are resolved by way of plea negotiations. In some instances, where the prosecutor and defense lawyer are not able to resolve the case, the matter must proceed to trial. The decision whether to go to trial rests solely with the defendant. In other words, it is the decision of the person who has been charged with the crime, not the government. A good criminal defense lawyer will assist the client in deciding whether to take the case to trial. That being said, the final decision is that of the client.

Once the client decides to take the case to trial, he or she must then decide which type of trial to select. The client must choose between a jury trial or a bench trial. A jury trial is one in which 12 members of society come together to hear the evidence and decide whether the client is guilty or not guilty. A bench trial is one in which the judge sitting alone makes the determination as to guilty or not guilty. Just like with the decision to go to trial in the first place, the decision as to whether to select a bench or jury trial is that of the person accused.

There are many important factors that go into deciding whether to elect a jury trial or a bench trial. The single most important factor is the judge who would hear the bench trial. A good criminal defense lawyer will have knowledge of the judge sitting in that particular courtroom. Judges are human beings and as such they are all different. Some judges are known to be pro-state and some to be pro-defense. If the client is fortunate enough to be in front of a judge who is known as being pro-defense, it will most likely be the best decision to elect a bench trial. If on the other hand, the judge is known as a pro-state judge, it is probably best to select a jury trial. That being said, when it comes to a jury trial, you never really know the 12 people that will decide the case. Although the lawyer and the client help in selecting the 12 individuals, you never really know these people and it is difficult to predict their behavior.

Another important factor in determining whether to select a jury or bench trial is the cost associated with the selection. Criminal defense lawyers will generally charge more in legal fees for a jury trial as compared to a bench trial. This is because a bench trial can typically be resolved in one court date. A jury trial will often go three days or more. With a bench trial, the rules of evidence are often more relaxed. With a jury trial, the proceedings are often more formal and there are many breaks for the jury. A jury has to be selected, the jury has to have lunch, the jury needs multiple breaks etc.

Another important consideration is the possible sentence if convicted. Although most judges will not admit it, a defendant will typically be sentenced more harshly after conviction at a jury trial than conviction after a bench trial. People within the system often refer to this as a “trial tax”. The underlying rationalization for a trial tax of this kind comes from the increased time spent on a jury trial as opposed to a bench trial. Judges feel that if a person spends a week at trial they should be punished more severely than someone spending merely an afternoon at trial. This is not fair but in many courts it is a reality of the system.  The decision to select a jury trial should be taken very seriously.

If you or a loved one has been charged with a crime, you should contact a criminal defense attorney immediately. This attorney will help you decide whether to go to trial and whether to elect a bench or jury trial in your case.

All You Wanted to Know and More about Misdemeanor & Felony Sentencing in Illinois

Every day I receive calls from clients who have been recently arrested for crimes in Illinois. The first thing they want to know is the possible sentence they will receive based on their crime. I always begin by reminding the client that they are presumed innocent of the crime for which they are charged. I explain to the client that the State must prove them guilty beyond a reasonable doubt. That being said, should they find themselves in a position where they are going to be sentenced for a crime, I can explain to them the possible punishment for the crime for which they have been charged.

In Illinois, there are two broad categories of criminal offenses. The first category of offense is known as a misdemeanor. In Illinois, a misdemeanor is a crime punishable by a maximum of 364 days in the county jail. A person cannot be sentenced to prison for a misdemeanor offense. The second category of criminal offense is what is known as a felony. In Illinois, a felony is a crime that is punishable by one year or more in the Illinois Department of Corrections. Within the category of felony offenses, there is a great range of potential sentences, depending on the severity of the crime that is committed. For example, a person convicted of retail theft over $300, faces a sentence of between two and five years in the Illinois Department of corrections. They may also be eligible for probation. On the other hand, someone convicted of first degree murder faces between 20 and 60 years in the Illinois Department of Corrections.

Prior to 1998, it was very easy to determine the length of time that a person would spend in the Illinois Department of Corrections after being convicted for a crime. However, in 1998, the Illinois legislature passed what was referred to as the truth-in-sentencing law. This legislation changed the amount of good time that a prisoner would receive depending on the crime for which they were serving time. Prior to the 1998 legislation, every prisoner would receive day-for-day credit no matter the crime for which they were convicted. For example, prior to 1998, a person receiving a 40 year sentence for murder would only serve 20 years in prison. For many crimes, this changed in 1998. In 1998, the legislature changed the rules of good time for many of the serious and violent crimes.

The biggest change came in the area of murder convictions. Beginning in 1998, a person convicted of murder would receive no good time credit whatsoever. In other words, a person convicted of murder and sentenced to 40 years in prison would serve 40 years in prison. Prior to the change, the same person would only serve 20 years. Another key change came in the area of violent crimes resulting in great bodily injury. Beginning in 1998, a person convicted of armed robbery, home invasion, attempted murder, aggravated battery or other violent crimes that resulted in great bodily injury to the victim, would only receive 4.5 days of good time per month. In other words, a person convicted of one of these crimes would have to serve 85% of their sentence in prison. This was a drastic change in the law from a time where such individuals would only serve 50% of their time in prison.

Despite the change in the law in 1998, most crimes in Illinois remain what we call 50% crimes. In other words, a person who is sentenced to prison for these crimes will still receive day-for-day credit and will only serves 50% of their sentence. The vast majority of crimes in Illinois are still 50% crimes, including burglary, felony theft, forgery, most drug crimes and other non-violent offenses.

If you or a loved one has recently been charged with a crime in Illinois, contact a criminal defense attorney immediately. A knowledgeable and aggressive criminal defense lawyer can win your case or minimize the amount of time that you will spend in jail.

Should You Find Yourself Facing Criminal Prosecution for Retail Theft / Shoplifting in Chicago, or Throughout Illinois, Then Immediately Consult With an Experienced Criminal Defense Lawyer, or You Could Be Paying More Then Piper

As a criminal defense lawyer in Chicago, it seems that every day I get calls from potential clients who have been arrested for retail theft, or what you may call shoplifting. Most of the people are very nice and are quite embarrassed. These men and women are also concerned about the potential consequences of an arrest for retail theft offense. To be honest they should be, it can be quite trying. For any of you out there considering taking merchandise from a retail store without paying for the items, don't do it! For those that have already been arrested for shoplifting / retail theft crime, then the following summary will provide a look at what may lie ahead.

In Illinois, retail theft is defined as taking items offered for sale in a retail store without paying the full price of the items. The most common violation of this law involves individuals that conceal items and then walk out of the store without paying for the items. Some individuals pay for some items while concealing and not paying for other items. A less common violation involves switching of price tags, and then paying a price lower than the store offers the item for sale. Though they may seem like minor crimes, all of these violations are criminal offenses and can lead to arrest, prosecution, and even county jail.

Most people arrested for retail theft are charged with a Class A misdemeanor. In Illinois, a Class A misdemeanor is punishable by up to 364 days in jail and a fine of up to $2,500 or both. If the person arrested stole items with a retail value of over $300 they can be charged with a Class 3 felony, punishable by from 2-5 years in the Illinois Department of Corrections and a fine of up to $25,000 or both. If the person arrested has a prior retail theft on their record, the prosecutor can elect to charge the person with a Class 4 felony, punishable by from 1-3 years in prison and fine of up to $25,000 or both.

Fortunately, most people arrested for retail theft are not given the maximum sentence or fine. In fact, if properly represented, there are many options available to stay out of jail, avoid a large fine, and possibly have everything expunged and erased from your record. For example, in Chicago IL and other Cook County courts, first time offenders of retail theft are sometimes offered an opportunity to take part in a theft deterrent program. This program typically involves a one-time, four hour class. The purpose of which is to discourage first time offenders from shoplifting ever again. At the conclusion of the class, each person attending receives a certificate of completion. At the next court date, your criminal defense lawyer presents the client's certificate of completion and the case is then dismissed. This is a great opportunity to avoid a lifetime of living with a criminal conviction on your record. Even convictions as minor as shoplifting can present problems for current or future employment, or make it difficult for getting approved by the board or association in a place you would like to reside.

Should you find yourself facing criminal prosecution for retail theft / shoplifting, you should immediately consult with an experienced criminal defense lawyer. A skilled and knowledgeable criminal attorney will guide you more easily through the process and give you the best opportunity to avoid jail, large fines and a criminal record.

Chicago Criminal Defense Case Action Plan

Civil Rights and the Criminal Law

( A Step-By-Step Checklist From Arrest To Arraignment )

Just been arrested? Don’t panic; help is at hand. If you find yourself charged with a crime in Chicago, you will need a Criminal Lawyer in Chicago with the right experience to defend you; whether your crime is drug trafficking charges in Cook County, IL, or white collar crimes in Cook County. Whatever you have been charged with, Criminal Lawyer Andrew Weisberg – a specialist in Chicago Criminal Defense– demonstrates a wealth of experience in Criminal and Civil Law to help bring your case to justice. The following article is designed to summarize your experiences from arrest to arraignment during which a Criminal Attorney in Chicago comes to your rescue, and how a Criminal Lawyer in Chicago will approach your case and help you to continue with your life.

What happens when I find myself under arrest in Chicago?

When an individual is arrested by a member of the Police Force on suspicion of committing a criminal or civil offense (e.g. a white collar crime in Cook County, or a drug trafficking charge in Cook County, IL), the person charged with the offense is taken to the nearest Police Station to be charged with a crime.

The arrest process

1. Arrest; The initial charge and subsequent arrest take place.

2. Booking; this is the official way of recognizing that you have been charged with a crime and are to be temporarily detained as a result.

3. Bail Hearing; once you have been charged, arrested and booked, you will then proceed to the next stage; Bail. When an individual is on remand, waiting to be tried, they will appear before a Criminal Court.

 

During a Bail Hearing

• The Criminal Court judge reads out the charges against you.

• You will be identified as ‘the Defendant’ during this process.

• The judge will ask if you have legal representation, or if you are in need of a state-appointed legal representative.

• You will be asked (and must answer) to the charges; either ‘guilty’, ‘not guilty’ or ‘no contest’.

• The judge will set a Bail amount (a fee which must be levied otherwise you will await your court hearing in a penal or remand institution), or will permit you to remain free while awaiting trial. They may also decide to release you entirely.

• The judge appoints a court date for your hearing.

 

What Are My Rights? 

In the event that you find yourself charged with a crime, don’t panic. You have rights as a Citizen of the United States, and it is important to ascertain that the correct legal processes are adhered to.

You have the right to;

• A Defense Counsel.

• A jury trial date within a reasonable time.

• The 5th Amendment Right against self-incrimination.

• The 6th Amendment Right to confront witnesses giving evidence against you.

• The Right not be tried on multiple occasions for a single crime.

 

How Will Your Criminal Lawyer in Chicago Resolve Matters?

The next move is tactical; your Criminal Lawyer in Chicago will analyze the charges against you and decide how best to proceed. Your Attorney will weigh up the evidence against you, your criminal history (if one exists), your character and the applicable case law (past cases of a similar nature to your own which have been recently decided) and will evaluate whether to enter a plea of ‘guilty’ or ‘not guilty’ to the court.

Have You Been Convicted, or Charged with a Drug Crime in Chicago Illinois? A Skilled and Knowledgeable Criminal Attorney Can and Will Guide You More Easily Through the Illinois Criminal Process

Some of the most frequently prosecuted criminal cases in Chicago and all of Illinois involve violations of the various drug laws.  In Chicago and Cook County, the most common drug cases involve cannabis (marijuana), cocaine and heroin.  Other cases involve narcotics such as methamphetamine, ecstasy, PCP and other illegal drugs.  The severity of the offense and the possible punishment involved depends on many factors that will be covered below.

The first factor in determining the severity of a particular drug offense is to look at the particular substance involved in the case.  A violation of the cannabis laws generally results in the prosecution of a misdemeanor offense unless the person possessed more than 30 grams or possessed more than 10 grams with the intent to deliver (sell) or actually delivered that amount.  As such, cannabis, although illegal in Illinois, is the least serious of the typical narcotics bough and sold in Chicago and the suburbs.  On the other hand, possession of any amount of cocaine, heroin, methamphetamine or most other narcotics are considered a felony offense.  This is true regardless of the quantity possessed.  In Illinois, there is no such thing as a misdemeanor amount of cocaine, heroin or methamphetamine.

The second factor in determining possible punishment is the quantity or weight of the particular drug involved.  Generally speaking, the higher the quantity of a particular drug that is found, the higher the offense level and possible punishment.  For cannabis, the following weight categories will determine the level of offense.  2.5 grams or less (Class C misdemeanor), more than 2.5 grams but less than 10 grams (Class B misdemeanor), more than 10 grams but not more than 30 grams (Class A misdemeanor), More than 30 grams but not more than 500 grams (Class 4 felony) and so on.  If a person possesses over 5,000 grams of cannabis, they face a Class 1 felony punishable by from 4-15 years in the Illinois Department of Corrections.

For controlled substances such as cocaine and heroin, the weight classifications break down in the following manner. Less than 15 grams (Class 4 felony), more than 15 grams but not more than 100 grams (Class 1 felony), more than 100 grams but not more than 400 grams (Class X felony), more than 400 grams but not more than 900 grams (Super Class X felony).  As you can see, narcotics such as cocaine and heroin are much more serious than cannabis and smaller quantities can land a person in prison for a very long time.  It is important to note that Illinois law makes no distinction between "crack" cocaine and "powder" cocaine (unlike the federal laws).

The third main factor in determining a range of punishment is whether the person simply possessed an illegal substance or whether they delivered the substance or possessed it with the intent to deliver.  Any time a person delivers or intends to deliver a controlled substance, the punishment is more severe than simple possession.  The idea of course being that the society wants to punish the dealer or trafficker more severely than the user.  Prosecutors have an easy charging decision when the suspect is actually caught selling narcotics to a citizen or an undercover police officer.  The more difficult decisions come when the person was not caught selling but possessed an amount that seems too large for personal consumption.  Prosecutors and police will look not only at the quantity of the substance but whether there was other evidence of an intent to deliver.  Examples include large amounts of cash, digital scales or other evidence that would suggest the person arrested was in the business of selling illegal drugs instead of simply using them.

Should you find yourself facing criminal prosecution for a drug crime in Chicago, or any city in Illinois, then you should immediately consult with an experienced criminal defense lawyer.  In drug cases, police often search people in violation of their constitutional rights.  An aggressive lawyer may be able to force the prosecution to dismiss a drug case where police misconduct violated the rights of the accused.  A skilled and knowledgeable criminal attorney can and will guide you more easily through the criminal process and give you the best opportunity to avoid jail, large fines and a criminal record.