FAQ ILLINOIS CRIMINAL LAW AND PROCEDURE

This following information is intended to provide general answers to commonly asked questions regarding criminal law and criminal procedure in the State of Illinois. The information provided should not be construed as legal advice and nothing herein should be construed as creating an attorney client relationship. It is highly advised that you meet with an experienced criminal law practitioner AS SOON AS POSSIBLE before making any decision that may affect your rights. (c) 2008 Borsberry Law Offices, P.C.

RIGHTS OF THE ACCUSED IN ILLINOIS

Every person in the State of Illinois charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt in court. They are entitled to be represented by a competent attorney who will zealously represent their interests through every stage of criminal proceedings after they are charged. People have the right to counsel even before charges are filed, but a person does not have a right to have their attorney present for grand jury proceedings. Every person charged with a crime in which there is a chance of incarceration is entitled to court appointed counsel. If the prosecutor waives jail time, the right to court appointed counsel does not apply. Every person charged with a crime in the State of Illinois has the right to a jury trial, even if they are guilty or did what they are accused of doing . A person may waive the right to a jury trial and have a trial before a judge. A jury trial requires the unanimous decision of guilty by all jury members before one can be convicted. A bench trial or judge trial still requires that a judge find the defendant guilty beyond a reasonable doubt. Depending on several factors, it may be advisable to proceed with a bench trial as opposed to a jury trial. A defendant can initially demand a jury trial and elect to have a bench trial. However, a defendant cannot waive the right to a jury trial, demand a bench trial, and later be entitled to a jury trial. It is the opinion of the Borsberry Law Offices, P.C. that it is generally preferable from a defendant’s perspective to have a jury trial. If acquitted, the case ends and the defendant is free to go. If convicted, the Defendant is generally entitled to have a sentencing hearing in which the judge decides a punishment considering the Illinois Code Corrections and facts in aggravation and mitigation.


“SHOULD I TALK TO THE POLICE?”

The police have a right to try to question witnesses when they feel a crime may have been committed. You have the right to consult with any attorney before deciding on whether to answer police questions. You have an absolute right to remain silent. If you waive your right to remain silent, any statements made may be used against you as part of the prosecution against you. The most conservative approach would be to remain silent or have your attorney present when you make any statement if you are going to make any statement regarding any alleged criminal actions undertaken by you. If you are asked to answer police questions, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.

“WHAT IF I AM ARRESTED?”

An arrest occurs when you are not only told by an officer, “You are under arrest,” but also if there is a functional equivalent of arrest, meaning you reasonably do not feel free to leave. If you are arrested, remain calm, remain silent, and cooperate fully with the arresting officer. Otherwise resisting arrest, even an improper one, is a crime. Battering an officer with offensive touching, no matter how slight, could be charged as a felony, which is often a more serious than the crime you are being arrested for. If a defendant is arrested based upon an arrest warrant, the arresting officer must inform the defendant that a warrant has been issued and must inform the defendant of the general nature of the offense specified in the warrant. A defendant may also be arrested without a warrant if there is probable cause for arrest. If a defendant is arrested without a warrant, the officer must still inform the defendant of the general nature of the reason for the arrest.

Once you are arrested, the three most important things you can do are:

1. Respectfully ask to speak to an attorney immediately.
2. Respectfully tell the officer you are not going to answer any questions.
3. Remain silent.

According to a U.S. Supreme Court case, the arresting agency can hold you for up to 48 hours before releasing you, setting a bond, or setting a bond hearing. Once incarcerated, the arresting agency has a duty to provide you with humane care, including food and necessary medical treatment.

If you are arrested, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.


“THE POLICE DID NOT READ ME MY RIGHTS.”


Prior to questioning a person in custody police are required to advise a person of certain rights, commonly referred to as the Miranda rights. Although a simple, concept, this has often created confusion.

Police have the right to question you if you are not under arrest and not in custody. They are not required to read you your Miranda rights in this situation.

Police also have the right to arrest you if there is probable cause and then not question you. They are not required to read you your rights in this situation.

If police question you in custody and do not ready you your rights this is a potentially problematic situation that your must discuss with your attorney as soon as possible.

If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.


“I HAVE TO BE IN COURT RIGHT NOW. WHAT SHOULD I DO?”

If required to appear in court for a criminal charge, the first thing one should do is contact an attorney as soon as possible. Our office offers free consultations for criminal, divorce, juvenile, paternity, adoption, child support, order of protection, post decretal, and family law matters. We offer a variety of appointment times, including the availability of weekend and night appointments.

However, if you cannot consult with us before going to court for a criminal case make, go to court and appear in a timely manner. When you get to court be sure you do 3 things:

1. Respectfully ask for additional time to hire an attorney.
2. Plead not guilty.
3. Demand a Jury trial.


If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.

“I WAS TOLD THEY ARE NOT PRESSING CHARGES.”

Often persons accused with crimes are told the alleged victim is not “pressing charges.” The decision on whether or not to charge a person with a crime rests solely with the State’s Attorney’s Office. The State’s Attorney’s Office has the sole discretion to charge or not charge a person for a crime based upon numerous factors. Merely because an alleged victim does not want to bring charges does not mean the State’s Attorney’s office will not. The State’s Attorney’s Office often brings charges in such a situation, especially where there is domestic violence.

Often a person is told by the police that they are being arrested or given a Notice to Appear in Court for an alleged crime. Again, the decision on whether or not to charge a person with a crime and what crime specific crime is charged rests solely with the State’s Attorney’s Office. Often a police officer will arrest for one crime, but a person is charged with something completely different.

If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.


“SHOULD I USE THE PUBLIC DEFENDER?”

Attorneys are expensive, but necessary. Every person charged with a crime in which there is a chance of incarceration is entitled to court appointed counsel if they cannot afford private counsel. If the prosecutor waives jail time, the right to court appointed counsel does not apply. Most counties in the State of Illinois have a Public Defender’s Office whose duty it is to provide a defendant charges with a crime a zealous and competent legal defense. Some smaller counties have their courts appoint counsel to represent defendants charged with crimes who cannot afford private counsel.

All attorneys, whether court appointed or private, have a duty to zealously and competently defend their clients, whether they are paid by the defendant or not. Every person charged with a crime in the State of Illinois has the right to a jury trial, even if they are guilty or did what they are accused of doing, whether they have a Public Defender or not. Hundreds of cases are won each year by court appointed counsel. Public Defenders are attorneys. However, you often do not have a choice of public defender. Choosing a suitable lawyer for your needs is a private and personal decision that may affect the rest of your life.

Like with any attorney, having one that serves your needs is vitally important. If you are not satisfied with the approach of your Public Defender, you have the absolute right to hire an attorney of your choosing. A private attorney is in the business of not only providing you with a zealous defense and competent legal services, but also serving your specific needs to your satisfaction. Private counsel also have the ability to develop and holistic approach and marshal additional resources to your case and offer legal advice outside of what courts appoint counsel for, such as order of protections, family law disputes, traffic cases, ordinance violations, etc. Although one may be entitled to court appointed counsel in Juvenile court, having one private attorney handling all matters will provide a comprehensive approach to your legal needs.

For a free consultation to discuss the options with your case, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.

DCFS ISSUES

ORDERS OF PROTECTION

PROBATION VIOLATIONS

JUVENILE COURT CASES

DUI
FOID CARD PROBLEMS

FEDERAL CHARGES

EXPUNGMENTS

If faced with any of these issues, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000