The Common Misconceptions Held Regarding The Criminal Process

Interviewer: What are some of the top misconceptions people have about the whole criminal process because maybe because they watch too much TV, or they just don’t know?

Ben Kelsen: A problem that I’ve found is people assuming that there really is a crime scene investigation unit for every single police department out there doing crime scene analysis and re-enactments and bottling and things of that nature. You know: looking for fingerprints on bullet casings or on the clip on the side of a gun or preparing the unique signature chemical makeup of a certain batch of drugs. New Jersey does not have that type of funding and really that doesn’t happen, especially not on the New Jersey municipal level. Almost every single municipality in New Jersey has its own police department; some of them go as high as having 100 officers and some of them are as low as having three officers.

Those departments are not equipped like you would see in the movies, or like some federal authorities that have that type of capability. There are instances where there are CSI teams that will get involved but in your average criminal matter they are not sending a CSI unit out to go and canvas the area and look for stray bullets or look for fingerprints or strands of hair or things like that. That’s number one. Number two is that there is a misconception that if you, as a defendant, simply state the facts as you understand them, the court will very easily just turn around and say, “Okay, we misunderstood,” and drop the charges. The process itself is very slow; the wheels of justice turn slowly. They do need to and things have to be done very carefully with crossing t’s and dotting i’s. Very often people will get very frustrated when they say, “But I didn’t do whatever it is that they are accusing me of.” They get very frustrated with the fact that the process is taking so long to be able to get things done quickly enough for their needs. It would not be unusual, let’s say, if a person had to have a trial, for that trial to take place two years to three years after the event itself occurred. That’s the second one. The third biggest misconception, I think, is the notion of when a person is arrested, how easy it is get them out of jail.

Bail is something that is an option, but it is not always so simple as simply picking up the phone, calling a bail bondsman, and having them get them out of jail within ten minutes. The process can sometimes take hours if not days and on occasion can take longer than that.

Interviewer: Why?

Ben Kelsen: Part of that is because the question of the bail amount; if the bail amount is very high it may take a while for the family or the individuals involved to be able to raise the funds to be able to pay whatever it is the bail bondsman is looking for or what the bail is.
The second reason is that very often the prosecutors will request what is called a “bail source hearing,” and what they are doing in that regard is they are attempting to try to make sure that the funds that are being used to post the bail are not revenue coming from criminal enterprise.

So if somebody is arrested for being a drug dealer, they want to make sure that the money that is being posted for bail is not coming as a form of revenue that has been coming in from the sale of drugs. Those types of hearings may take a while. It also may take a little while to schedule a bail reduction hearing to try have the bail lowered to something that is a little bit more practical for a family to be able to come up with, rather than what the initial bail posted based on a phone call that a judge gets at some point from a police officer who is filling out forms. Then they’ll have the police officer, for the most part, depending on how the police officer relays the information to the judge as to what the charges are and what the proofs are, that will very often determine how the judge will set the bail.

Interviewer: Are there any other misconceptions? Maybe, “The officer didn’t read me my Miranda Rights, so you should just get the case thrown out.”

Ben Kelsen: Sure, that’s actually a very good one. Miranda Rights come from the case of Miranda v. Arizona, which is the famous case where we all know the rights that a person has against self-incrimination and the right to counsel. Many people are under the impression that if they didn’t get read their Miranda Rights, the entire case should be thrown out.

In actuality, that case, which is a landmark Supreme Court of the United States case, basically says that nothing that you say can be used against you. What that means is if the police did not read you your Miranda Rights but continued to do what’s called a custodial investigation – in other words, they have a person in custody which essentially under the law means that they are not free to leave the scene and they are not allowed to simply walk away – and if the police continue to ask questions without reading Miranda Rights, anything that the person says cannot be used against them.

This could have implications as far as potential confessions or not helpful comments and the search of a motor vehicle. A person who has not been read their Miranda Rights and told that they have a right to refuse to have their vehicle searched as an example may have grounds upon which to motion for a suppression of the search.

Interviewer: Do people say, “I’m a good person; I’ve got a wife and kids,” all that, and “why is the court wasting their time on me?” Is there a mercy in the court that you can throw yourself upon?

Ben Kelsen: Well, mercy of the court is one thing. Very often, people will turn around and say, “I can’t believe I got myself into this situation,” and that goes back to an earlier question about what type of people are we dealing with most of the time. Most of the time we are dealing with people who are good people who just made mistakes. So very often, once that person wakes up and says, “Wow, I can’t believe what I did.” That is absolutely a common refrain: “Why are they coming after me for this? What’s the big deal?” Sometimes they are correct. There are cases where civil disputes over monetary matters, technically speaking, could be a violation of criminal law and very often a debtor will attempt to get money out of the person who owes them by involving the criminal justice court.

So, for example, let’s say there’s an individual who bounces a check by accident – I think you know most people at some point in their life have a problem where a check gets bounced. That technically is a criminal act and they don’t understand all of sudden why they are being hauled into a criminal court over a check that they were writing for a couple of hundred dollars to a friend of theirs to pay them back for Yankee tickets or whatever it might be.
Then it turns out they just didn’t have the money on hand, or that they didn’t get a chance to get the money, or whatever else it may have been, but it’s essentially a financial dispute and its a financial dispute that really should be handled in the civil division. Instead, some people use the criminal justice system as a stick with which to prod people into coming up and settling financial disputes. That very often happens where people say, “I don’t understand why the court is getting involved if I owe this guy $100.”

Interviewer: Can you think of any other misconceptions about the criminal process?

Ben Kelsen: Again, I think it is a question of understanding the scope and the severity of certain acts. Very often, people do not realize that every action that they take has a repercussion in life in general.
Somebody may not have thought that selling drugs or being in possession of drugs on a certain street would be a big deal, but then it turns out to be within 1,000 feet of a school zone. Suddenly, now they’re within 1,000 feet of the school and we’re going to have penalties. They didn’t realize there was a school down the street but it turns out there was. Another possibility that comes up is that there is a legal presumption that an individual who has multiple bags of marijuana or whatever drug it may be (or has marijuana in a somewhat larger quantity but still misdemeanor level) will also have in the car a box of Ziploc bags. It can be a legal presumption that that person was planning on distributing and that person could simply say “I was just picking up bags to make lunch for the kids. I don’t what they are talking about – I’m not distributing.”That could be a problem.

Ben Kelsen: Other misconceptions may be that they didn’t realize that a third offense of shoplifting has a mandatory jail term to it or that they could lose their license for a certain amount of time for various criminal convictions.

Is It Possible To Keep Criminal Records From Being Publicized?

Interviewer: How public is it nowadays if you are accused of a crime? Will everyone find out or can you keep it quiet?

Ben Kelsen: By law, this has to go on public record, but somebody has to go and look for that public record. So depending on how slow of a news day it may be, it is possible that you’ll have cases where normally nobody could care less about it getting into the paper. I have a case right now where there is an article that made it into the paper that did not have any names or anything involved with it but it was in the paper and it had their address associated with it.

I have had cases where it was a huge deal, in theory, within the area, but because there was so much going on in the news within a few days it just didn’t make into the papers.

I had a client once who had ten pounds of marijuana sent to him through the postal service. Now in the town that he had it delivered to, that was a pretty big deal. But because of a lot of things that were going on at the time that really didn’t make it into the newspapers.

On the other hand, I have had cases where people were caught doing something that I wouldn’t have thought would be such a big deal but there is huge article about it.