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FAQs

PLEASE NOTE:  This section of the website is intended for informational purposes only.  It is not intended to be legal advice, nor does it create an attorney-client relationship between the reader and Alex K. Kriksciun.  Should you wish to discuss any of these matters further, please call 504.226.6200.

 

Pre-Arrest:

Can the police ask me questions if I am simply walking down the street?
Typically, the answer is yes. There is no constitutional prohibition against police stopping a pedestrian and asking them questions in such a situation.

Can the police stop and frisk me if I am walking down the street?
In order to stop and frisk a pedestrian, police must have reasonable suspicion that the pedestrian is involved in criminal activity. This type of stop is sometimes referred to as a “Terry stop” after the Supreme Court case Terry v. Ohio, which authorized such stops.

Can the police enter my home without a search warrant?
It depends.  If the police do not have a search warrant to enter your home, they may only enter if one of the exceptions to the search warrant requirement applies.  The most commonly encountered exception to the warrant requirement is consent.  Essentially, if you let the police into your home, they can search your home.  Any citizen is entitled to ask a police officer if they have a search warrant, and if they do not, to refuse consent to enter his or her home.

What about if I am getting pulled over in my vehicle?
A traffic stop is the functional equivalent of a “Terry stop” (see above). The Supreme Court has held that the police have the right and the authority to order a driver and any passengers to exit the vehicle if a traffic violation has been committed. For example, it is the standard operating procedure of the Louisiana State Police to order a driver and any passengers to exit the vehicle after a traffic stop. Most parish sheriff's offices and the New Orleans Police Department do not have such a procedure, however.

Can the police search my vehicle if I am pulled over for a traffic violation?
The short answer is no. In order to search a vehicle, the police must have probable cause to believe that a crime has occurred or have gotten permission to search the vehicle by the driver/owner.


Arrest:

How is an “arrest” defined?
The Supreme Court has defined an arrest as a situation where a “reasonable person would not feel free to leave” the encounter with law enforcement.

Can I or should I resist arrest?
Absolutely not. If you attempt to resist arrest by running away or giving law enforcement a false name (for example), you can be charged with a violation of LSA-R.S. 14:108, which is a misdemeanor punishable by up to six months in the parish prison.

If I am arrested, does the officer have to read me “my rights?”
If a citizen is placed under arrest, the arresting officer is supposed to read the arrestee his or her Miranda warning, which states: “you have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you at no cost.” Note that the wording of the Miranda warning(s) can differ from department to department.

Do I have to speak to the police after I am arrested?
Absolutely not! You have the right not to say anything to the police after an arrest. Furthermore, you have the right to request the assistance of an attorney at any point after you are arrested. If an arrestee requests an attorney, law enforcement must “scrupulously honor” the request and all questioning of the arrestee must stop immediately.

Should I speak to the police after I am arrested?
Generally, no. The police may tell you that they can help you if they talk to them, but this is not usually the case. They may try to intimidate you into talking. They may make promises to you or inform you that “things will work out better” if you talk to them. If you are arrested, you must resist the temptation to speak to the police, because anything you say WILL be used against you later.

What if a law enforcement officer does not read me my rights when I am arrested?
Many people are under the impression that if law enforcement does not read them their Miranda rights after an arrest, the charge/case will go away. That is simply not the case. However, if you do invoke your right to an attorney and law enforcement continues to question you, any statements you make may be suppressed by the court.


Post-Arrest:

Am I going to go to jail after I am arrested.
In most cases, the answer is yes. However, for minor crimes, the arresting officer may choose to give the arrestee a summons rather than taking him or her to jail. This is especially true in Orleans Parish, where many New Orleans Police Department officers elect to give arrestees a summons for violations of the Municipal Code, such as public drunkenness and disturbing the peace.

Will I be able to get out of jail after I am arrested?
It depends. Typically, after a person is arrested, a judge will set a bond as to each of the charges the arrestee was booked for. If arrestee “makes bail,” or satisfies the conditions of the bond(s), he or she will be released from jail. However, there may be other reasons why an arrestee will not be released even if they make bail, such as a probation or parole hold. Furthermore, if the charges are not particularly serious, the arrestee may be released on their own recognizance (called an “ROR”) or released due to jail overcrowding, in which case the arrestee would not have to pay a bondsman or a cash bond in order to be released.

What is bail?
Bail is a set of restrictions imposed on a person who has been arrested to ensure that they appear in court and comply with the judicial process. In Louisiana, we often refer to bail as “bond” or “bonds” because in many, if not most cases, the judge will set a money bond for each charge the arrestee was booked for.

What types of bail/bond are there and which would be best for me?
The three types of bonds in Louisiana are: (1) cash bond, (2) a property bond, and (3) a commercial bond. In a cash bond, the person pays the entire amount of the bond(s) set by the judge in cash. The benefit to a cash bond is that once the case is over, and assuming the arrestee made all of his or her scheduled court appearance, the arrestee is entitled to the return of all the money he or she paid to the court. A property bond is a bond wherein the equity in a piece of property is encumbered in exchange for the arrestee's release. By far the most common of bonds is a commercial bond, where an arrestee pays 12-13% of the bond plus fees to a commercial bondsman in order to secure his or her release. Unlike a cash bond, the arrestee does is NOT entitled to a return of the money after the case is over if he or she posts a commercial bond.
In order to determine which type of bail/bond is best for you, I would encourage you to call the office at 504.226.6200. It is not a question I can answer in this space.

 

Screening:

What is the screening process?
The screening process occurs after somebody is arrested. Once law enforcement generates a report and provides all information in its possession to the district attorney's office, the screening process begins. In short, the screening process consists of reviewing the material received from law enforcement and deciding whether to institute formal criminal charges.

What are the possible results in my case after the screening process is complete?
Typically, the case will either be “accepted,” which means that the district attorney has decided to proceed with criminal prosecution, or “refused,” which means that the district attorney has decided to not proceed with criminal prosecution. Occasionally, a higher court may refer the matter to a lower court for prosecution. For example, if someone is arrested for a misdemeanor in Orleans Parish and the case is assigned to Criminal District Court, it is possible that the matter may be referred to Municipal Court, which generally results in lighter punishments for the offender.

Can an attorney help to get my case refused/dismissed in the screening process?
Absolutely. From a criminal defense lawyer's perspective, the screening process is often a good initial opportunity to try and end the case then and there. I have been successful on many occasions in contacting the screener and explaining to him or her why the district attorney should not proceed with criminal prosecution. It is an excellent opportunity to advocate for your client and to push for an excellent result. Unfortunately, many criminal defense lawyers do not take an opportunity to talk to the screener and advocate for their clients.

What are my chances of having my case refused/dismissed in the screening process?
It depends on the parish. Every district attorney's office screens cases differently. For example, the current policy of the Orleans Parish district attorney's office is to accept an overwhelming majority of its cases, even those cases which (in my opinion) would be unsustainable at trial. In Jefferson Parish, the district attorney's office refuses a much greater percentage of the cases it receives from law enforcement, even though they probably still accept more cases than they refuse.

What happens if my case is accepted?
If your case is accepted, it will be set for arraignment and the normal course of criminal prosecution begins.


Arraignment:

What is an arraignment?
LSA-C.Cr.P. art. 551(A) states that “the arraignment consists of the reading of the indictment to the defendant by the clerk in open court, and the court calling upon the defendant to plead.” In layman's terms, think of Law and Order. When you hear the judge in that show ask, “how does the defendant plead” and the defendant responds, “not guilty,” that is an arraignment.
In most cases lawyers can waive the reading of the formal charges, and most (including myself) always do when presented with the opportunity.

What are the possible pleas at arraignment?
As per LSA-C.Cr.P. art. 552, there are four possible pleas that can be entered at arraignment; guilty, not guilty, not guilty and not guilty by reason by reason of insanity (called an “NGRI plea” in the business), and nolo contendere (which is basically a guilty plea).
In practice, it is very rare to enter anything but a not guilty plea at arraignment.

If I plead guilty at arraignment, can I later change my plea to not guilty?
Generally speaking, no. This can only be done under very rare circumstances that are beyond the scope of this FAQ.

If I plead not guilty at arraignment, can I later change my plea to guilty?
Yes. This is the most important of many reasons why it is beneficial to enter a not guilty plea at arraignment.

 

Post-Arraignment:

What happens after arraignment?
Under most circumstances, the defendant will be given another court date and a subpoena to return on the same date. The next court date may be referred to by various terms, including a “pretrial hearing,” a “pretrial conference,” a “hearing on motions,” or a “discovery hearing.”

What is discovery and why must the state turn discovery over to the defense?
Broadly speaking, “discovery” is the evidence that the state intends to use against the defendant at trial. Louisiana's criminal discovery rules are contained in Code of Criminal Procedure articles 716-729.7. As an oversimplification, the state is required to provide the defense with discovery because the United States Supreme Court and the Louisiana Supreme Court have held that the state must do so.

Does the state have to provide the defense with its entire file?
No. Many Louisiana jurisdictions now employ “open file discovery,” which essentially means that they do in fact turn over the entire file to the defense. However, this is by no means required by statutory law or constitutional law. For example, Orleans Parish has a long and very distinguished history of discovery abuses and hiding evidence from defendants and their lawyers dating back to the days of Harry Connick, Sr., who served as district attorney from 1973 to 2003. The district attorney's office in Orleans still has a policy in place of providing as little discovery as possible to the defense.

How do plea bargains work?
This question could be addressed in an entire blog post. Broadly speaking, a plea agreement is a promise by a criminal defendant to plead guilty to one or more criminal charges. Usually, but not always, the plea agreement is offered in exchange for some sort of benefit to the defendant. It is very common for defense lawyers to meet with the DA's office to try and argue for a lighter potential sentence in exchange for a guilty plea. If your lawyer knows what he or she is doing, he or she will be constantly needling and pushing for a better deal.

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