Criminal Law FAQ'S

Bennett, Michael & Hornsby, Criminal Law FAQs

Being accused of a criminal offense is a frightening, and confusing, experience for the average person. Just trying to navigate the criminal justice system can be intimidating for someone who has never had a reason to learn much about the system, other than what they have seen on television. To suddenly find yourself struggling to understand how the prosecution of a criminal case works and worrying about what you should be doing to protect yourself and your future is undoubtedly difficult, particularly given what is at stake.

At the Tennessee law firm of Bennett, Michael & Hornsby we understand how you feel because we have helped many people just like you. Although no two criminal prosecutions involve the same set of facts and circumstances, there are some basic criminal law concepts that are fairly universal. In an effort to help you feel more informed, and therefore more in control of your own future, we have prepared some common criminal law questions and answers. If you have additional questions or concerns, please feel free to contact the criminal defense attorneys at Bennett, Michael & Hornsby.

1. What should I do if the police want to question me?

One of the most common mistakes people make is “talking” to the police when they are just a witness, “person of interest,” or suspect. People frequently think they can talk their way out of being arrested when, in reality, that rarely ever happens. The police are trained to question suspects – they do it every day for their job. If you have not been placed under arrest, or are not officially in custody, the police are not required to read you your rights. That does not mean you are not considered a suspect nor does it mean that what you say will not be used against you if you are arrested. Anytime the police want to talk to you it is in your best interest to exercise your right to remain silent until you have the opportunity to speak to a criminal defense attorney. Find out more about your right to remain silent when questioned by police.

2. What are some of my Constitutional rights?

In the United States, we are all protected by a number of important rights enumerated in the United States Constitution. The most commonly used of these rights are located in the Amendments to the U.S. Constitution and are collectively known as the “Bill of Rights.” Some of these rights you have likely heard recited on television, such as your right to remain silent. You have other important rights as well though, such as your right to an attorney, a right to confront and cross-examine witnesses against you, and a right to be free from unreasonable searches and seizures. Learn more.

3. Do I need a criminal defense attorney if I am not guilty?

In a perfect world, innocent people would never be convicted of criminal offenses. Unfortunately, we do not live in a perfect world. Although our criminal justice system is among the best in the world, it is not perfect. The reality is that being innocent does not guarantee you a just outcome if you are accused of a crime. Therefore, you still need to protect yourself and your rights by retaining the services of an experienced Tennessee criminal defense attorney. Learn why.

4. Can the police search my house?

One of the most commonly used law enforcement investigative methods is to conduct a search and seizure, the purpose of which is to uncover incriminating evidence against a suspect. The U.S. constitution protects you against “unreasonable searches and seizures” and, as a general rule, requires the police to first obtain a warrant based on probable cause before conducting a search and seizure of your home. There are, however, exceptions to that general rule.Learn more about the exceptions.

5. Do I need a criminal defense attorney if I plan to accept a guilty plea?

Sometimes, the evidence against a defendant is so overwhelming that the best strategy is simply to try and negotiate the most favorable plea agreement possible and plead guilty. If you plan to admit your culpability and accept a guilty plea agreement with the State of Tennessee, you may wonder why you would still need a criminal defense attorney. There are several reasons, starting with the fact that you owe it to yourself to have an experienced attorney look over your case to make sure you don’t have a valid defense that could prevent a conviction. In addition, an experienced attorney is in a much better position to negotiate a favorable plea agreement if you do decide to move forward with a plea of guilty. Learn more.

6. How do I find the right criminal defense attorney for me?

The single most important thing you can do for yourself if you have been accused of a criminal offense is to retain the services of an experienced Tennessee criminal defense attorney. Of course, if you have never been charged with a crime before, you may not know where to begin. There are several steps you should take as soon as possible to ensure that you hire the right attorney for you and your circumstances. Learn more about the steps to finding the right attorney here

7. What Is the difference between state and federal charges?

The United States operates under what is known as a federalist system of government. A federalist system has a strong central authority (the federal government in our case) and then numerous smaller authorities (the state government). This provides a system of checks and balances that prevents the central government from becoming too powerful. Because we have a federalist system of government, we also have two sets of criminal laws and two court systems. Therefore, you could violate a federal law, a state law, or both.

8. What is my right to remain silent?

Your right to remain silent is derived from the Fifth Amendment to the United States Constitution which reads, in relevant part, “nor shall be compelled in any criminal case to be a witness against himself.” Your right to remain silent exists at all times; however, the police are only required to tell you about it if you are placed in custody and they wish to question you.

9. Do the police have to read me my rights?

As an accused you have a number of important right that are guaranteed to you by the U.S. Constitution and the Tennessee State Constitution. Because the average person may not be familiar with these rights, the Supreme Court of the U.S. decided, in an important case (Miranda vs. Arizona), that a law enforcement officer must tell an accused about some of these rights when the individual is in custody. Collectively referred to as your “Miranda rights,” these are what you always hear the police tell a suspect in a police drama.

10. Can the police search my home?

The police are required to first obtain a warrant, based on probable cause and signed by a judge, before they have the right to search your home unless one of the narrow exceptions to the warrant required applies. The most commonly used exception is consent. If you consent to a search, a warrant is not required. The other exception include:

a. Search incident to a lawful arrest. If the police have an arrest warrant, they may search the immediate area within the suspect’s control for contraband and/or weapons.
b. Plain view. If the police knock on your door and can see a bag of cocaine lying on a coffee table just inside the door, they can enter and search.
c. Exigent circumstances. This is used for emergencies or “hot pursuit” situations. If the police receive a domestic violence call and hear someone screaming inside the home when they arrive, they may enter and search to ensure the person is o.k. Also, if the police are chasing someone and the individual runs into a home, they may be able to enter and continue the chase.

11. Do I have a right to a trial by jury?

Your right to a trial by jury is found in the Sixth Amendment to the U.S. Constitution which reads, in pertinent part “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” Prospective jurors are chosen from state driver’s license and voting lists in most states. Your right to a trial by jury is yours to exercise or waive after consulting with an attorney.

12. What is a plea agreement?

If you do not wish to take your case to trial, and you wish to plead guilty instead, you may enter into a plea agreement with the State of Tennessee. In exchange for your plea of guilty, the prosecutor will agree to the terms of your sentence. Those terms are typically negotiated between the prosecuting attorney and defense attorney. Once the court accepts your plea agreement you will have a conviction on your record.

13. What is probation?

Probation is a sentencing alternative that allows a defendant to serve a sentence in the community instead of in jail or prison. Typically, the defendant is sentenced to a term of imprisonment; however, that sentence is suspended on the condition that the defendant successfully serve a designated period of time under the supervision of the probation department. If you violate the terms of your probation, the court could order you to serve your suspended sentence in jail or prison.

14. What are aggravating and mitigating circumstances?

When a judge is deciding a sentence he or she will consider any applicable aggravating or mitigating circumstances. Aggravating circumstances are things that make the crime worse than average, such as the presence of a weapon or injuries to a victim. Mitigating circumstances are things that make the crime less serious than normal, such as a lack of criminal history or accepting guilt without the need for a trial.

Contact Us

If you are currently facing criminal charges in the State of Tennessee, it is in your best interest to consult with an experienced Tennessee criminal defense lawyer at Bennett, Michael & Hornsby as soon as possible to ensure that your rights are protected.Contact the team today by calling 615-898-1560 to schedule your appointment.