State Bar of Texas
Texas CD Lawyers Association


I think I am facing criminal charges . . . what should I do?

If you are confronted with being arrested or charged with a crime or the likelihood of being arrested, it can be a frightening and stressful experience. Not only are you facing the possibility of prison, fines, or other penalties, but simply having to undergo the procedures following an arrest can cause extreme anxiety. Anytime you are in that type of situation—scared, worried, and on unfamiliar ground—chances are, you are not in the best frame of mind to make good decisions. And unfortunately, the decisions and choices you make in that situation can have a grave impact on your rights and your freedom not only immediately, but far into the future.

Don’t be caught unprepared—either by not knowing what is going on, or by failing to have a competent, experienced criminal defense attorney available to advise, inform, and represent you. Before you find yourself in trouble, know what you are up against.


1) When should I contact or hire an attorney?
Unless you are extremely familiar with knowing and understanding the full scope of your rights, it is advisable to consult an attorney as soon as you have been approached by the police for questioning and before being arrested or, in the case of an arrest, right away. You have certain specific rights that can be impacted depending upon how you respond to the police even if no formal action has been taken by law enforcement, and it is important, if not critical, to fully understand these rights ahead of time. Your attorney is required, under penalty of disbarment, to keep all communication between you completely confidential. This means that you have the freedom to fully discuss your situation with your attorney so that he can help you understand your rights within the context of your specific predicament, and advise you about the consequences of any particular course of action.
2) I am innocent. Should I talk to the police when they question me or ask to conduct a search?
Often, people assume that, if they are innocent of a crime, there is no reason they should refuse to answer questions from the police or to consent to a search. While this attitude may be understandable and may even seem admirable, it is also risky and overly simple. Although you may see yourself as being on the same “side” as the police, police do not have the same attitude. This is not to say that they are your adversaries, but it is not their job to be your friend. When you share your thoughts, information, and attitudes with the police or allow them to enter your home, it is not just the friendly local police officer who is listening or entering, but the full force of government law enforcement looking for evidence of crime. That sort of intrusion into your affairs should not be treated casually or lightly, and it is wiser to insist—politely, but firmly—that the police need to have legitimate and legal cause and authority to invade your privacy before you allow them to question you or to enter your home.
3) If I don’t have an attorney, should I ask my friends or family members what to do?
In short, the answer is no. While it is natural to want to consult those who are close to you, even if you respect their judgment in other matters, it is not wise to take legal advice from someone who is not qualified. Unfortunately, many people seem to have very strong opinions about what a person should or should not do when faced with arrest, and too often they are relying upon something they overheard from someone they know or, worse, what they witnessed on the television or in the movies. That is a poor substitute for sound legal advice when you are facing criminal charges in reality. Even more importantly, if you are under investigation for a crime or are arrested, chances are that your friends and family members will also be questioned. Unlike conversations with your attorney, anything you say to them is not bound by confidentiality, and you risk the possibility that something you said to them—or what they thought you said to them—may end up harming you or your case.
4) What are my rights?
With respect to criminal cases, your basic rights are spelled out by the United States Constitution and by state statutes, as well as by court decisions interpreting these rights. Essentially, you have the right to be free of unreasonable searches and seizures of your person or property. You also have the right to be free of compelled self-incrimination, which means that you need not answer questions (you may remain silent). If you are arrested, you have the right to an attorney, even if you cannot afford one. If a case goes to trial, you have the right to a speedy and public trial, to confront witnesses against you, and the right to compel witnesses to appear on your behalf. Many people are familiar with these rights as generally stated, but there are important details that are not always known. For example: - An unreasonable search and seizure is one conducted without a valid warrant—although there are important exceptions to the warrant requirement, particularly when the police are in “hot pursuit” of the perpetrator of a crime; - If you choose to be silent, your silence may not be used by the prosecution to imply guilt; - The right to be free from self-incrimination always exists, but the police do not need to inform you of these rights until they take you into custody and begin questioning you; - You have the right to see an attorney before the police can question you; - You have the right to have an attorney present during questioning; - You have the right to stop the questioning at any time. To fully understand what these and all your rights entail, you should consult a criminal defense attorney or, even better, have one advise and represent you if you are arrested.
5) What will happen if I get arrested?
The first step after being arrested is being “booked” at a police station. Essentially, that means getting fingerprinted, photographed, and having your name, address, and other personal information collected. You are entitled to make a telephone call, but the police are entitled to finish the booking procedures before you may use the telephone. In addition, the police are allowed to place you in a line-up; have you state specific phrases or wear certain clothes associated with the crime in question in order to help witnesses to make an identification; and take samples of your handwriting, your hair, or your blood. Following booking, you will be taken before a magistrate, who will inform you of your Miranda rights (basically, a listing of some of the rights referred to above, as required by a Supreme Court case called Miranda v. Arizona), inform you of the charges filed against you, and, usually, set bail. If you can meet the bail amount, you will be released until a subsequent appearance at an arraignment.
6) Will the police tell me why I am being arrested?
Under Texas law, you have the right to be informed of why you are being arrested. If you are arrested under an arrest warrant (that is, the police have not detained you immediately at or near the scene of a crime, but after investigation and issuance of an arrest warrant), the police must show you the warrant and inform you of the charge.
7) What should I do if I don’t have an attorney and I am arrested?
If you can afford an attorney, contact a criminal defense attorney—either directly, or through someone you trust—as soon as possible for a consultation. If you truly cannot afford an attorney, ask for a public defender to be appointed to your case right away.
8) How do I get out of jail after I have been arrested?
If bail is set, you may get out of jail by posting a cash bond (the full amount of cash) or a surety bond (a bail bondsman will pledge the full amount, secured by some collateral, for a fee). If you cannot post bail, you will have to remain in custody. If you do post a bond, failure to appear when required will result in forfeiture of the bond amount. Alternatively, the magistrate may set a “personal recognizance” bond, in which you are set free based solely upon the promise to appear in court when required.
9) How soon can I get out of jail after being arrested?
While it takes time to go through the process of being booked and appearing before a magistrate, you can be released as soon as bail is posted.
10) What is an arraignment?
An arraignment is an initial court proceeding during which you are informed of the charges formally filed against you. In Texas felony cases, a formal charge can only come about as a result of an indictment from a grand jury. If you are indicted, you are brought before a trial judge and the indictment is read. You then have the opportunity to enter an initial plea: Guilty, Not Guilty, or Nolo Contendere (which is treated the same as a Guilty plea).
11) If I am guilty, should I just plead “Guilty” at the arraignment?
In general, the answer is no. You can always change a plea of “Not Guilty” to “Guilty” at a later stage, but you cannot change a “Guilty” plea once entered. Even if you ultimately plead “Guilty,” it can be a mistake to enter a guilty plea at the arraignment stage, particularly if you have not spoken with an attorney about your case. A “Guilty” plea from the outset essentially allows the court to accept the police’s version of the case, even if it would be difficult for the prosecution to prove that case beyond a reasonable doubt. In contrast, a “Not Guilty” plea allows you and your attorney to find out more about your case. This opens the possibility of working out a plea bargain in which you may end up with a lighter sentence and a lesser charge, or, if your attorney believes you have a strong case or that the prosecution has a weak case, you may even decide to let the matter go to trial.
12) What is a “plea bargain”?
A plea bargain is an arrangement worked out between a defendant and the prosecution in which the defendant agrees to plead guilty to certain specific charges and to accept a particular punishment in exchange for the prosecution not taking the case to trial on more serious charges with the possibility of harsher punishment. Plea bargains are a way for both sides to “win” from their own perspectives. For the prosecution, they do not have to spend the time and manpower prosecuting a case through trial with the possibility of losing, yet they can still make sure that a party pays for wrongdoing. For the defendant, a plea bargain saves the time, effort, and resources of having to go through trial, with the possibility of being convicted and facing a harsh punishment. Once a plea bargain is made, the prosecution makes its recommendation to the court. If the court accepts the proposal, the defendant enters a “Guilty” plea and the matter is resolved.
13) If I am guilty of the crime charged, is it always a good idea to negotiate a plea bargain?
Not necessarily. In law, “Guilty” does not mean that a person did what he was accused of. Instead, “Guilty” only applies where the prosecution has proved its case beyond a reasonable doubt before an impartial jury. Sometimes, a criminal defense attorney decides that the evidence compiled against his client is not sufficient to overcome a reasonable doubt, or he can produce sufficient evidence that would create a reasonable doubt. In such a situation, it may be wiser to force the prosecution to prove its case at trial. And, if the prosecution knows its case is weak, it may even drop the case before it goes to trial.
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