Criminal Law FAQs
The following are general answers to commonly asked criminal defense law questions, and are not provided to constitute specific legal advice for the reader. This information is not provided to form an attorney/client relationship. Answers to specific legal questions should be directed to a criminal lawyer with this office, or to another licensed attorney.
DO I NEED A CRIMINAL DEFENSE ATTORNEY?
This is the first and biggest question, really. The best way to answer this question may be to rely on instinct: if your gut feeling is that you should talk to a criminal attorney, you probably are right – seek advice.
The main reasons you need a criminal attorney are:
You have been charged in court with a crime. This may occur following an arrest, or through a summons to appear in court and answer a criminal complaint or indictment. All people have an absolute constitutional right to the assistance of a lawyer in a criminal court case.
You have been arrested. A referral for criminal charge(s) may be made to the District Attorney, or to the federal prosecutor. If an in-custody interrogation follows the arrest, the person being questioned has an absolute constitutional right to remain silent, and to have a lawyer present during the questioning.
You are being investigated for a crime. Law enforcement officers and prosecutors often contact people directly to answer questions about their alleged involvement in a crime.
Generally, the sooner a criminal lawyer is brought into a criminal case or investigation, the better potential results for the client. Do not take a wait-and-see approach to a criminal situation. Do not seek answers to questions about your rights and legal status from police officers and prosecutors, who do not have a legal duty to act in a suspect's best interest.
WHAT HAPPENS IF I AM ARRESTED?
If you are arrested and charged with breaking a criminal law in Wisconsin, the case is taken for an initial appearance before a magistrate who advises the accused of the formal charge and potential penalties, and sets bond for future appearances in court. The bond may be a secured bond, where cash or property must be posted for release, or unsecured, requiring no cash or property to be posted for release. If the defendant cannot post a secured bond he may be incarcerated pending the next appearance in court. If bond is posted or unsecured, he will remain free pending appearance at an arraignment. The initial appearance usually occurs within 72 hours of the arrest or the first date available if on a weekend or holiday. A person in custody can also be released and charges filed at a later date, or no charges may be filed at all (which can still leave a person with an arrest record). When someone is arrested, it is always an unexpected event. Family members and friends are left to search quickly for an attorney to answer questions and to help to get their loved one out of jail. The attorneys at Mastantuono Coffee & Thomas can always help in this situation by getting a call through to the right police officer, prosecutor, or court. As criminal justice professionals, we have access to all jail facilities beyond normal visitation hours with special contact privileges, and we can get in to see someone right away.
WHAT IS THE RIGHT TO REMAIN SILENT?
Just that. An absolute right to say nothing if a person is in custody and is being questioned by police. It is in your best interest to invoke that right and say nothing until you have a criminal defense attorney present. The police may legally use various tactics in this setting in an attempt to get a suspect to admit to a crime or make incriminating statements. These tactics may include appealing to a person's guilt or conscience, engaging in ploys like 'good-cop/bad-cop', lying about the evidence against the person, making promises of leniency or release if the suspect confesses to a crime, or outright intimidation. This is such an inherently coercive setting for a person that the U.S. Supreme Court ordered that the now-famous Miranda warnings be read to a person before the questioning process begins. You have the right to remain silent. Everything you say will be used against you. You have the right to a lawyer. If you cannot afford a lawyer, one will be appointed to you.
Despite the warnings, people often ignore these rights and give incriminating statements to police that they later say are false, inaccurate, or the result of abuse, coercion or intimidation. Also, people often forget that any communication or information given to police is a statement – not just a written and signed statement. These statements will be used against a person – just like the warning says. An analogy: If you have a baseball bat, and someone tells you that if you hand him the bat he will hit you over the head with it, would you give that person the bat? Think about the right to remain silent the same way – say nothing and ask for a lawyer.
CAN THE POLICE SEARCH ME, OR MY PROPERTY?
This is a common question that does not have an easy answer. Bottom line: sometimes they can, sometimes they can't. Attorney Mastantuono has written on the subject of police search and seizure in Wisconsin, and lectured at training seminars for other lawyers on this subject; for more information, see his teaching outline in this area. Generally, a search warrant, supported by probable cause and reviewed and authorized in advance by a magistrate, is required for police to search a person, a person's home, office or car, or a person's private belongings. Probable cause is evidence that would lead a reasonable person to conclude that a crime has probably been committed or illegal items (contraband) probably exists. However, there are many exceptions to this warrant requirement. The main exceptions are listed below:
Search After Arrest – The police are authorized to fully search a person and his belongings, and the area surrounding him without a warrant, if that person is legitimately placed under arrest. This search may include a full search of a car's interior (not the trunk) if the person is arrested in his car.
Investigative Detention and Frisk – The police may temporarily stop a person and ask questions without a warrant if they have reasonable suspicion to believe that person may be committing a crime. Investigative detentions, while common, must be supported by evidence that the person is doing something wrong. Reasonable suspicion means the police can point to specific observations that would cause a reasonable person to believe that a crime or traffic violation may be occurring. This detention must be brief, only for the purpose of a short investigation. The person is not free to leave, and may be questioned regarding his identity and his purpose. The person may not be placed under arrest or transported to a station unless police are satisfied that probable cause exists to arrest the person. Also, if police have reasonable suspicion to believe that the person being detained is armed, the police can conduct a pat-down frisk of the person's clothing to check for weapons.
Consent Search – The police can always ask permission to search a person or his stuff without a warrant, and the person is always free to consent to – or give permission for – a search. Police are trained in getting a person to give consent even when there is no probable cause or reasonable suspicion to believe a crime has occurred. People often think that they cannot refuse an officer's request to search. If the police ask for permission, they probably need it. If they had a warrant or if a different exception to the warrant requirement existed, they would not ask – they would go ahead and search.
Plain View – Police are authorized to seize illegal items without a warrant when those items are in the plain view of an officer, and that officer has the legal authority to be where he is. Example: police officer stops a car for speeding and while talking to the driver, he sees a gun in the back seat – he may take the gun without a warrant.
Emergency Circumstances – Police are authorized to enter areas and conduct a search without a warrant when they have a reasonable belief that such aid is immediately necessary to protect the public from danger.
Automobile Exception – If the police have probable cause to belief that contraband is in a car, they may search the car without a warrant.
That's basically it. Wisconsin criminal defense attorneys are trained to review police/citizen encounters, and reach a conclusion on whether the police violated their authority in an investigation or search and seizure. If the lawyer concludes that police violated their authority, the lawyer can file a motion in court asking the judge for a remedy – dismissal, suppression of evidence, or other remedies authorized by law. Getting answers to the question of whether the police can do what they did do is one reason people seek legal advice with Mastantuono Coffee & Thomas.
CAN I GET PAST CRIMINAL CONVICTIONS OFF MY RECORD OR EXPUNGED?
For adult convictions in State Circuit Court, Wisconsin law allows for expungement of a person's criminal record in limited instances. Eligibility depends on when the person was sentenced, and whether he/she successfully completed the sentence. If a person is sentenced after July 1, 2009, a court may expunge a criminal conviction from someone's record in misdemeanor and limited felony convictions where the maximum possible penalty was imprisonment for 6 years or less, and the individual was under 25 at time of offense. If a person is sentenced before July 1, 2009, a court may expunge a criminal conviction from someone’s record in only misdemeanor convictions, and the defendant was under 21 at the time of the offense. Expungement is in the discretion of the judge, and a motion for expungement must be filed and argued in court. Successful completion of the sentence requires more than just satisfying the conditions of probation without being revoked. It also requires that the person not be convicted of a subsequent offense. In addition to the two statutory requirements above, recent court decisions have held that the sentencing judge must have decided whether to grant expungement at the time of the sentencing hearing. See Wisconsin Supreme Court's January 2018 decision in Arberry, 2018 WI 7. If you believe that you were granted expungement at sentencing, call Mastantuono Coffee & Thomas to speak with a criminal defense lawyer.
HOW CAN I TELL IF A LAWYER IS ANY GOOD?
There are many theories on what makes a criminal defense lawyer effective: experience, connections, savvy, trial skills. None of these alone provides a complete answer. It takes a combination of skill and experience to be an effective criminal defense attorney. One of the most important skills is the ability to communicate well, both with the client and with judges, prosecutors, and juries. Ultimately, a client must feel comfortable with his or her criminal defense attorney, be able to connect with that attorney, and be confident that the attorney knows what he or she is doing. Satisfy yourself that your lawyer understands you, understands your case, and knows how to advocate on your behalf. Experience is very important, but lawyers should not treat every case the same. The law is constantly changing, and each case and client is unique. Discuss specific fee arrangements – these should be explained fully to you, in writing. We think the best way to rate criminal defense attorneys is by their case outcomes, or results. Results establish reputations, which is why effective attorneys have good reputations. We are confident that our results justify the reputation earned by this Wisconsin criminal defense firm as a leader in criminal justice.