Philadelphia criminal defense lawyer William Spade answers frequently asked legal questions
Q. When I surrender to the police, should I talk to them to explain that I am innocent?
A. No! It seems like an obvious answer, given how often television shows and movies depict criminal defendants “taking the Fifth,” i.e., asserting their Fifth Amendment right not to incriminate themselves. However, many people quot;talk” to the police or FBI when they are arrested, thinking that they can explain their innocence and persuade the police to release them. This is a MISTAKE. Many police officers and other law enforcement officers believe it is their job to convict the people they arrest, not to find the truth. They often ask “trick” or misleading questions during interrogations. Most of the time, the interrogations are not recorded, so the statement of the defendant is the version of the interview as remembered by the detective or agent who conducted the interview. Even when interviews are recorded, the police do not record the “pre-interview” in which they coach the defendant as to what they want him/her to say; or make promises or threats in order to make the defendant say a certain thing. For all of these reasons, even innocent individuals may make damaging or incriminating statements to the police. These statements make it more difficult for the defendant’s lawyer to win an acquittal at trial. NEVER give a statement to law enforcement without your lawyer being present.
Q. Are there different penalties for different drug crimes?
A. Yes. The punishment for drug crimes depends not only on the criminal conduct of the offender but also on the type and quantity of the drug. Federal sentencing guidelines begin with forty-three base offense levels and add or subtract levels depending on certain specified criteria. The higher the offense level, the harsher the sentence. The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. However, if the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and listed on the same schedule of controlled substances. However, the quantities of crack needed to impose a certain sentence are much less than the quantity of powdered cocaine. For example, a person convicted of the crime of delivering 5 grams of crack will receive a sentence in the federal system of five to forty years. To receive that same sentence, a person would have to be convicted of delivering 500 grams of powdered cocaine. Please see my article, “Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy” in Volume 38, No. 4 of the Arizona Law Review.
Q. Should I testify at my trial?
A. It depends. If you have never been convicted of a crime or your conviction is old enough (generally, at least ten years pursuant to Pennsylvania Rule of Evidence 609 (b)) that it is not admissible into evidence, you should seriously consider taking the stand to testify. Although criminal defendants have the absolute right not to take the stand and testify and the Judge will instruct the jury that it should not draw an adverse inference from the defendant’s failure to testify, I believe that most jurors want to hear from the defendant. Therefore, if possible, I believe that it is the best course for a criminal defendant to testify and tell his/her side of the story.
Q. What is the difference between probation and parole?
A. Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.
Typically, an offender has been sentenced to an indeterminate or range of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.
Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.
By: William Spade