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  • What should I expect at an Initial Appearance in criminal court?

    Initial Appearance

     

    Once an individual has been arrested, the next step in the criminal process is the initial appearance.  The initial appearance refers to the first time that the defendant appears before a judge.  Even if the defendant has been allowed a temporary release on bail, he or she is generally obligated to be present in court for the initial appearance.

     

    At an initial appearance the Judge will inform the defendant of his right to a lawyer. The judge will ask whether the defendant wants to hire a lawyer, represent himself or apply for a court-appointed lawyer.  The Judge will inform the defendant as to the specific charges against him or her.  The Judge will inform the defendant of the next scheduled court appearance.  The Judge will not give legal advice.  The Judge may also address the issue of bond at the initial appearance.

    A word of caution 

    This is not a closed or protected hearing.  There is no opportunity for the defendant to “clear the air” or “explain misunderstandings”.  The proceedings could be recorded.  Anything the defendant says can be used against him or her.  There is generally a prosecutor present who will do exactly that given the opportunity.  No responsible person should ever go to criminal court without a competent criminal defense attorney.

     

  • Over the last few years, my 19-year-old son has been spending time his grandmother’s home—my husband’s mother—who is having trouble taking care of herself. Now David has been arrested for “uttering and publishing” in North Carolina. It seems to be something about taking financial advantage of his grandmother. Can you please explain this?

    The crime of uttering and publishing has its roots in English common law, and is related to forgery. In ancient times, those crimes were considered misdemeanors and—as with all common law offenses—were considered criminal acts by tradition. Today, of course, we require that an act must violate a specific law in order to be called a crime. Uttering and publishing is defined in the North Carolina General Statutes, section 14-120, and is a class I felony.

    The crime is usually associated with passing bad checks. To charge your son with the crime of uttering, the prosecutor must be able to prove that your son presented a bad check with the intention of fraud. In a typical offense, someone will present a check or money order to a bank to be cashed, but the signature on the check—or the endorsement, if it’s a third party check—has been forged or altered.

    The crime is committed when the bogus check is presented. No money need change hands. It doesn’t matter whether the recipient believed the check was good. The act of offering a check for payment when the person knows the document is invalid is enough to establish a crime.

    Of course, we don’t know all the circumstances of David’s arrest or the specifics of the charges he is facing. In our experience, when a young adult is accused of taking advantage of an older relative by uttering and publishing, there are two common scenarios:

    • The prosecutor alleges that the young adult has gained access to the older person’s checkbook and has been writing checks to himself on the bank account, forging the account holder’s signature; or
    • The prosecutor alleges that the young adult has been removing pension, Social Security, or other checks from the mail, forging an endorsement by the endorser, and then presenting the checks for cash payment to himself.

    In David’s case, you probably are not facing the Social Security fraud of the second scenario, because that would involve a federal prosecution rather than a violation of state law.

    There are many effective defenses against charges of uttering and publishing in North Carolina. For instance, your son’s attorneys may be able to prove that your mother-in-law actually wrote checks to David, or that she asked him to cash checks on her behalf but forgot about it.

    Because the penalties for a North Carolina felony offense are so harsh, you will want to engage an aggressive and experienced Wilmington criminal defense team for your son. Call 910-341-7570 or toll-free at 877-593-4233 to connect to Speaks Law Firm, where every client is treated as our most important client. We can investigate your son’s case thoroughly and work for an acquittal, a dismissal of the charges, or a plea bargain that will minimize the impact on his future.

  • I’m up on criminal charges in Wilmington, NC. Let’s not waste time: I’m guilty, and they know it. Why do I need to hire a defense attorney?

    First of all, let’s get one thing straight: you are not “guilty.” That term has a fixed meaning in criminal law, and it means that someone has been found by a court to have committed an offense against statutory law. No court has decided your case yet, so you can’t be guilty. You might feel embarrassed or ashamed or regretful about something foolish you have done, but that’s not the same as legal guilt.

    Prosecutors try to confuse the terms so you will confess. If you confess, that makes things easier for them (and tougher for you). That’s not the only way that prosecutors try to play mind games with you.

    The Powers Lined Up Against You

    Whether you are facing a federal felony charge or a North Carolina misdemeanor, you are at a disadvantage from the start. The full power of the government is set against you. The sheriff who arrested you and the police detective investigating your case are government employees. The members of the State Bureau of Investigation, who conferred on your case, work for the government. So does the person who will file charges against you, whether she is a federal prosecutor or an assistant prosecutor for the local district attorney’s office.

    Most of the power is in the hands of the prosecutor, who has almost unlimited options in deciding what to do with your case. This is what is called prosecutorial discretion. She could drop the charges and let you go free, or decide to “make an example of you” and pile on dozens of functionally similar charges, just to increase your prison time if you are convicted. What do you have to match against that power?

    Your Two Assets

    Actually, you have two important factors on your side.

    First, there’s the burden of proof. The prosecutor must prove that you violated a specific law—and prove it so thoroughly that a reasonable person would be compelled to believe her. That’s the famous standard of “proof beyond a reasonable doubt” you probably have heard mentioned on television.

    Even if you believe you are guilty, you can’t be sure the prosecutor can prove it—and proof is all-important for a conviction. Often, prosecutors misjudge how easily they can prove something. They sometimes accuse the wrong person, and even more often they choose the wrong charges—overestimating the strength of the evidence they have. That’s why the government team would love to have you volunteer a confession: it makes their job much easier.

    The second asset you have on your side is an experienced Wilmington criminal defense lawyer, who can anticipate what the prosecutor will do because he’s already seen all her tricks. You need the support of the Speaks Law Firm.

    Even if you think you did something wrong, you are entitled to have your attorney hear your side of the story. You owe it to everyone you know to require that the prosecutor prove her case in open court, and not bully people into confessions. Even if you don’t want to be represented by an attorney in court, you owe it to yourself to have a consultation with a North Carolina defense lawyer to help you make sense of the legal jargon.

    Call Speaks Law Firm today at 910-341-7570 (locally) or 877-593-4233 (statewide toll-free) to connect with a Wilmington criminal defense attorney for the advice you need now. At Speaks Law, we really believe that every client is our most important client.