Indiana Criminal Defense Attorney


I’ve Been Charged with a Crime or Investigated by Law Enforcement: What Should I Do Now?

1a. Lawyer Up

If you have been charged with a crime, the first thing you should do is lawyer up. Contact criminal defense attorney Chris Martindale today at 765-716-6213 or Consultations are always free. Areas of practice include:

  • Felonies
  • Misdemeanors
  • OVWI
  • Suspension of Driving Privileges
  • Expungement
  • Speeding Tickets (normally considered a civil infraction)

Being charged with a crime by the government is normally a difficult experience that can carry serious consequences, especially consequences regarding one’s liberty. If you have picked up a criminal charge, then you need a criminal defense attorney more than you ever will in your life. You have the right to an attorney for a criminal case and to defend yourself, and, if you have a criminal case, the exercise of these rights is quite possibly the most important thing you will ever do. I have experience defending people charged with crimes, and I will fight for you.

Defendants have Attorney-Client privilege, which means that anything you say to a criminal defense lawyer about your case cannot be repeated by your defense attorney to anybody else unless you give your attorney permission to do so. Criminal defense lawyers are here to represent and help you, which is the opposite of what the State and law enforcement are trying to do. You should never say one word to law enforcement or the State before speaking with a defense lawyer.

1b. Stop talking, clam up, be silent, zip it, and throw away the key

The other first thing you should do is stop talking to law enforcement or anybody else other than your attorney about your case. You have the right to remain silent, and you should absolutely exercise this right. If you haven’t said anything to law enforcement or anybody else about your case, good: don’t start.

Confessions and the words you say to other people are evidence that can be used against you. Whether you like it or not, you are part of a legal game of sorts and a lot is at stake. The caption for a criminal case is the State vs. a Defendant: them vs. you. The State and law enforcement are trying to arrest and prosecute Defendants, and they are not on your team. Defense attorneys are on your team, and I hope you are on your own team. Speaking to law enforcement or anybody else about your case is like scoring points for the other team and helping somebody else defeat you.

The State has the burden of proof in a prosecution, and they may not have any other evidence other than a confession or what a Defendant tells somebody else about their case. This means that if you don’t give the State anything to you use against you, you increase the chances you have to win your case. Law enforcement and the State normally try to get a Defendant to make incriminating statements, and they can get very creative in trying to get a Defendant to talk.

2. How to Exercise the Right to Remain Silent

  1. If you are detained or questioned by a police officer or other government agent, ask them first: am I free to leave?
    • If the police officer or government agent states you are free to leave, then remain silent and leave.
  2. If you are told you are not free to leave, tell the police officer or government agent that you want an attorney present: this will end the questioning.
    • In addition, you are free to say that you are exercising the right to remain silent.

The U.S. Supreme Court decided in Miranda v. Arizona that the 5th Amendment right against self-incrimination requires law enforcement to warn suspects that are [1] in custody and [2] being interrogated prior to questioning that they have the right to remain silent, that anything they say can be used as evidence against them, that they have the right for a criminal defense lawyer to be present during any questioning, and that a defense attorney will be provided at no cost if the person cannot afford one. These are your rights, and the police even have to warn you of your rights: you should always exercise your right to remain silent.

The only thing you have to provide and should provide to police officers is identification, and only after they have performed a constitutionally valid stop of your person.

What is a Crime?

In general, a crime is an act that the government has prohibited and carries a punishment if convicted. Crimes normally have the following elements: [1] A person; [2] with a guilty mind; [3] performed a voluntary act; [4] which resulted in some type of harm.

For example, the Indiana Code defines Theft as: “[1] A person who [2] knowingly or intentionally [3] exerts unauthorized control over property of another person, with [2] intent to [4] deprive the other person of any part of its value or use, commits theft, a Class A misdemeanor.”

The person element requires the State to identify and prosecute the person who actually committed the crime. It would be unfair and unjust to prosecute a person who did not commit a crime.

The guilty mind, or mens rea, element requires a person to know what they are doing and have an intent to perform an act and achieve the results of the act. The main categories of the mental requirement include knowingly, intentionally, recklessly, or criminal negligence. Knowingly and intentionally are the most common mental requirements used in crime definitions. It wouldn’t be fair or just to charge somebody with a crime if they did not know or intend that an act would result in harm, unless they were reckless or negligent under some circumstances.

The voluntary act, or actus reus, is also referred to as the guilty act and physical part of a crime. The name of a crime is usually the guilty act. For example, rape, murder, and theft are the criminal act. A crime requires somebody to perform an action, and the action has to be voluntary. Once again, it would not be fair or just to charge somebody with a crime if they did not do anything or did not have control over their body when they performed the action.

Harm resulting from an intentional or reckless action is a normally a required element for a crime. People have certain rights in a democratic society, including the right to be free from bodily and mental harm, personal freedom, and property rights, and one of the main goals of criminal law is to support these rights. It normally doesn’t make sense to punish and prevent intentional acts that do not result in harm to others, such as eating a ham sandwich or playing checkers. There are crimes such as OVWI or possession of drugs that do not result in harm to others. But, these acts have a good probability of harming somebody else, the person performing the act, or property.

What are your Rights?

People accused of crimes have many important rights, and it is the duty of a criminal defense attorney to protect these rights. The Founding Fathers included the following rights for those accused of a crime by the State in the First 10 Amendments to the U.S. Constitution, also known as the Bill of Rights:

  • The freedom from unreasonable searches and seizures;
  • The requirement of warrants based upon probable cause and supported by oath or affirmation particularly describing the place to be searched and persons or things to be seized;
  • The freedom from double jeopardy;
  • The freedom from self-incrimination;
  • The right to a speedy, public trial, by an impartial jury of the State and district where the crime was committed;
  • The right to be informed of the nature and cause of the accusation;
  • The right to be confronted with the witnesses against a person;
  • The right to obtain witnesses in one’s favor;
  • The right to counsel;
  • The right against excessive bail and fines;
  • Freedom from cruel and unusual punishment.

Presumption of Innocence, Burden of Proof

The Due Process Clause of the U.S. Constitution requires all Defendants to be presumed innocent until the State proves every element of every crime alleged against a person beyond a reasonable doubt. The State has the burden of proof in a criminal case, not a Defendant, and the burden is a heavy one. A Defendant does not have to say one word or enter one thing into evidence. If the State fails to prove a Defendant guilty, even just one element, then the Defendant is not guilty. While the term reasonable doubt is kind of difficult to define, one way to define it is a doubt based on reason.

What are the Stages of a Criminal Case?

Two of the most common questions for a person charged with a crime are [1] what happens next and [2] how will my case be resolved? A criminal case can be resolved in three different ways: [1] a trial; [2] a plea agreement; or [3] a dismissal. I wish a dismissal was possible in every case, but there has to be a good cause to dismiss a case. If there is a 4th Amendment search or seizure issue or a 5th Amendment Miranda issue, then a person can pursue suppression of evidence that violates these Constitutional rights. If a person is able to suppress evidence from a search or seizure or a confession, then the State may have to dismiss their case. Sometimes, the State has other fatal issues with witnesses or evidence. Beyond dismissal, the decision to go to trial or enter into a plea agreement depends on the facts of a case and the wishes of the client, and either way works for me.

Rule 4 of the Indiana Rules of Criminal Procedure includes a number of important deadlines for criminal cases. The State has one (1) year from the later of the date the criminal charge is filed or the date of arrest to prosecute a Defendant that has been released on their own recognizance or bond. A Defendant may not be detained in jail without a trial for an aggregate time period of more than six (6) months from the date the criminal charge is filed or the date of his arrest (whichever is later). If a Defendant is in jail prior to a trial and moves for a speedy trial, then a trial must occur within seventy (70) days of this motion.

The time period in between the filing of the case and a trial is the pretrial period. The pretrial period allows the State and the Defendant the opportunity to engage in discovery and prepare for trial. Discovery is the ability to pursue information from the opposing side and non-parties, such as documents, depositions of witnesses, etc.

What are my Defenses?

Another common question is what defenses are available? The State’s burden of proof isn’t technically a defense, but it applies to every case and can result in a dismissal, not guilty verdict, or a better plea agreement. Sometimes, crucial witnesses are uncooperative or difficult to find, and issues can arise with physical evidence. If the State is unable to prove just one element of an alleged crime beyond a reasonable doubt, then they are unable to uphold their burden and the Defendant is not guilty. A person is well within their rights to have a trial, make the State prove their case, and introduce reasonable doubt regarding the elements of an alleged crime.

As touched upon above, suppression, or excluding evidence from legal proceedings, is available for violations of a person’s 4th and 5th Amendment rights. If an unreasonable search or seizure occurred or there is an issue with a warrant, then a person can move to have evidence produced from the bad search, seizure, or warrant suppressed. For example, if a police officer stopped somebody for no reason, searched their coat pocket, and found a bag of cocaine, then a person could successfully move to have the cocaine suppressed. A 5th Amendment violation of a person’s right against self-incrimination can also result in the suppression of a person’s confession. For example, if the police have somebody in custody, ask them questions that can incriminate the person, and do not provide the person a Miranda warning, then a person could successfully move to have any incriminating statements suppressed. A person can also move to have statements and confessions suppressed under the Due Process Clause if they were not voluntarily provided to the police. For example, the police are not allowed to beat or intimidate a confession out of a person.

There are number of other defenses available under certain circumstances, which include:

  • Self-Defense
  • Alibi
  • Intoxication (has to be involuntary or unintentional)
  • Mental Disease or Defect (Insanity)
  • Mistake of Fact
  • Duress
  • Entrapment
  • Abandonment
  • Statute of Limitations
  • Legal Authority
  • Comprehension to Stand Trial
  • Necessity

You may have noticed that many of these defenses address the common elements of a crime, which are [1] A person; [2] with a guilty mind; [3] performed a voluntary act; [4] which resulted in some type of harm. For example, the alibi defense attacks element [1] and alleges that the Defendant could not have committed the alleged crime. Many of these defenses, such as duress and mental disease/defect, address the mental state element [2] and allege that the Defendant did not or could not have the necessary intent or mental awareness to commit a crime. Some defenses acknowledge that an act occurred, but excuse it based on public policy, such as allowing people to use reasonable force to defend themselves.

What are the Possible Sentences?

This is a very common question. People want to know the possible outcomes of a case. I wrote a detailed blog on sentencing for a criminal case, which can be viewed here.

Once again, if you have been charged with a crime, contact criminal defense lawyer Chris Martindale today at 765-716-6213 or Consultations are always free.