Criminal Law FAQs
Tennessee Criminal Defense Attorney
Criminal defense attorney Joe H. Byrd, Jr., with the law firm Byrd & Byrd, answers frequently asked questions about Tennessee criminal law:
What’s the difference between being detained and being arrested?
If a law enforcement officer suspects you are involved in criminal activity, you may be detained for a short time but you are thereafter free to leave. If you are arrested, the police take you into custody and you are not free to leave.
I’ve been arrested, when will I get to call my attorney and my family?
After you are “booked,” which means officially entering your arrest in the police records, fingerprinting and photographing, you will be permitted to make a phone call. If you do not get through, you are generally allowed to complete a call.
What are “Miranda rights”?
Miranda rights include:
- The right to remain silent.
- Anything you say can and will be used against you in a court of law.
- You have a right to have a lawyer present while you are questioned.
- If you cannot afford a lawyer, one will be appointed for you.
A police officer does not have to recite Miranda Rights prior to an arrest or prior to asking routine questions such as your name and address which are needed to establish your identity. Generally, the police will “read your rights” if you are going to be questioned. If you’ve been arrested, the only thing you have to say is, “I want to speak with an attorney.” If you are questioned without the presence of your attorney and without having been provided your rights, any answers you give cannot be introduced in court as evidence against you. However, if you give information voluntarily, that information may be used. The best course is always speak with an attorney before giving a statement to law enforcement or any state agency which may refer charges to law enforcement.
Does a police officer need an arrest warrant to take me into custody?
If a police officer comes to your home, generally a warrant will be required to take you into custody, but not if the arrest takes place anywhere else, even your front porch! However, if the officer has reason to think you might run, destroy evidence, or harm someone else, he can arrest you at home without a warrant.
Why do some people have to post bond to get out of jail and others don’t?
A judge will determine the amount of bail, if any, that needs to be posted. Some criminally accused individuals are released upon their own recognizance, (without posting bail). Bail is based on the following factors:
- Type and seriousness of the charges
- Whether or not you have previously failed to appear in court
- Criminal record, including whether or not you are on probation, parole or escape status
- Community connections
- The probability you’ll appear in court
Is there a difference between an arraignment and a preliminary hearing thing?
At an arraignment, you will appear before a judge who will tell you, officially, what you are charged with. Bail will be set, or possibly reduced if previously established. You may be released on your own recognizance.
At a preliminary hearing, the district attorney must establish that probable cause exists to believe a crime was committed and that you committed it. It is a much lower standard of proof than that of beyond a reasonable doubt, which is the standard of proof which must be met at a trial by jury.
What are the six forms of criminal homicide Tennessee law recognizes?
Tennessee law recognizes six distinct forms of criminal homicide:
- First degree murder
- Second degree murder
- Voluntary manslaughter
- Criminally negligent homicide
- Vehicular homicide
- Reckless homicide
State law also criminalizes assisted suicide, and considers a viable fetus a victim of a homicide.
What is a grand jury as opposed to a jury trial?
The grand jury is composed of citizens within the county of the Circuit Court for which the grand jury has been convened. It meets in secret and makes a probable cause determination based upon evidence generally only submitted by the District Attorney. The grand jury can hand down a true bill, (which becomes an indictment or formal charge), a no true bill, (which after the third no true bill finding, the case has to be dismissed), or it may pass the case.
A jury trial occurs after the grand jury has issued an indictment; the defendant is arraigned and provided a copy of his charges. The jury is normally composed of 12 jurors who must find, beyond a reasonable doubt, that a defendant has committed each and every act and element of the offense charged and that there is no evidence which supports a reasonable hypothesis inconsistent with guilt.