Historically speaking, our forefathers wanted to protect citizens of this country from the types of abuses perpetuated against the people by governments in Europe. In the hope of achieving this goal, protections against governmental abuse were incorporated as the Bill of Rights in the United States Constitution and the South Dakota Constitution. Your basic constitutional rights include the following:

You have the right to be represented by a lawyer. If you are cannot afford to hire a lawyer, the court will appoint a lawyer to represent you.

You are presumed innocent until a judge or jury finds you guilty. I like to tell the jury that the presumption of innocence is like a coat or armor protecting the accused. This presumption of innocence serves as the foundation for many of your other constitutional rights.

For example, if you are presumed innocent, then you should not have to do anything. Should the state or federal government believe you committed a crime, then it has the burden of proving you guilty.

If you are presumed innocent and the state or government has the burden of proof, then it should not be able to make you talk. That is the basis of your right to remain silent as guaranteed by the Fifth Amendment.

The prosecution has the burden of proving you guilty of all elements of the offense by evidence beyond a reasonable doubt. Prosecutors try to convince a jury that "beyond a reasonable doubt" means they only need to be 51% sure to convict. Defense lawyers try to make the jury think it means they have to be 99% certain to convict.

You have the right to a speedy public trial in the county in which you are charged before an impartial judge or jury. Speedy trial generally means that the case has to be completed within 180 days following your initial court appearance in state court and 120 days in federal court.

Public trial means that in all cases, except juvenile proceedings, the doors to the courtroom are open for all to observe. Publicity is always embarrassing to the accused, but it is the only weapon available to ensure that the accused are treated fairly by the judicial system.

Your right to an impartial trial means that your case should be decided by a judge or jurors who do not have preconceived notions about the type of offense being charged. It also means that your case should be decided by a judge or jurors who have not already made up their mind about your guilt.

Picking a jury is critically important in a criminal case. All jurors bring their life experiences and beliefs with them into the jury box. The defense lawyer must try and identify potential jurors who will be fair and impartial and exclude from the jury those persons who the defense believes may not be fair and impartial.

There are twelve jurors in a criminal case. The jury verdict must be unanimous. All twelve must agree that the accused is either guilty or not guilty. If the jury is unable to agree, then the state is entitled to retry the case.

You have the right to confront the witnesses brought against you. This means that if someone wants to say something about your case at trial, they have to walk to the front of the courtroom, take an oath, and testify in front of you and the jury.

You further have the right to cross-examine all witnesses brought against you. The purpose of cross-examination is to show the jury that it is impossible for the witness to have seen what he or she claims, that the witness has some bias in the case, that the witness may have been compensated for his or her testimony, or that the witness is simply not credible or worthy of belief.

You have the right to subpoena witnesses to testify on your own behalf. All persons subpoenaed to testify must appear or risk being held in contempt of court and incarcerated.

You have the right to protection against double jeopardy. Generally speaking, this means that the state or government is entitled to only one jury trial in its attempt to convict you. Should you be found not guilty, then you may not be recharged with the same criminal offense.

The constitution further provides you with the protection against cruel and unusual punishment. Determinations as to whether a sentence or incarceration practice is violative of this prohibition have to be made on a case by case basis.

You also have the right to the effective assistance of counsel. This means that if your lawyer erred, and you were prejudiced or hurt by the error, then you should have a new trial. The purpose of this right is to try and make sure that everyone receives a fair trial.

Finally, you have the right to appeal your conviction to a higher court. Typically, appeals in criminal cases must be commenced within 30 days after the judgment of conviction is filed with the clerk or courts.

What are Miranda warnings?

In a case called Miranda v Arizona, the United States Supreme Court told police that if they are going to conduct a custodial interrogation, they have to tell you that you have the right to a lawyer and if you cannot afford one the court will appoint one for you, and warn you that anything you say can and will be used against you. Should the police fail to do so, then your statements may not be used against you.

I am a suspect and the police want to talk to me. Do I have to talk to them?

This is always a very difficult question. The short answer is no, you do not have to talk to them. However, there are cases in which you may want to talk to the police with your attorney present.

Police are trained in the art of interrogating people they suspect of committing criminal offenses. Law enforcement officers go to schools where they are taught to catch people by surprise and question them before they have the opportunity to talk to a lawyer. Law enforcement also tell people they are not under arrest and they are free to leave so that they do not have to give persons their Miranda warnings prior to questioning.

The courts also permit the police to lie to and deceive suspects during questioning. The saying is that "trickery is permissible."

Law enforcement want to interview suspects for the purpose of gaining a confession. Sometimes there is no other evidence in a criminal case.

I would recommend that you talk to a lawyer before making a statement to the police if you are a suspect in a criminal investigation.

What happens to my rights if I plead guilty?

You are admitting that you committed a criminal offense by pleading guilty. Thus, you are waiving the following constitutional rights: the presumption of innocence, the burden of proof, your Fifth Amendment right against self-incrimination, the right to a speedy public trial by an impartial judge or jury, and the right to confront and cross-examine witnesses brought against you.

What is a plea bargain?

Most criminal charges do not proceed to trial. The vast majority of criminal cases result in a plea bargain. A plea bargain is where the prosecutor and defense reach an agreement on how to resolve the criminal charge.

Plea bargains may involve a scenario in which the prosecution agrees to dismiss one or more charges in exchange for a guilty plea to a charge. A plea bargain may involve a charge reduction in which the accused pleads guilty to a less serious criminal offense.

Plea bargains may include a sentencing recommendation by the prosecution. A sentencing recommendation may be for a suspended imposition of sentence, a suspended execution of sentence, a "cap" or maximum amount of jail time that may be imposed by the court, the amount of any fine, or restitution for damages.

Do judges accept plea bargains?

Plea bargains are recommendations. Judges have the power to accept or reject plea bargains. However, judges will tell the defense whether the plea bargain is acceptable. Most judges also explain why a plea bargain is unacceptable. This permits the parties to try and negotiate a plea bargain that is acceptable to the court. If a plea bargain cannot be reached, most judges will permit the defendant to withdraw his or her guilty plea and proceed to trial.

What is a suspended imposition of sentence?

A suspended imposition of sentence means that the conviction will be removed from your record and the court files sealed after you successfully complete the terms and conditions of probation as determined by the court. Each person may receive one suspended imposition of sentence in their lifetime.

What is a suspended execution of sentence?

A suspended execution of sentence appears as a conviction on your record. Typically, a judge will order the defendant to serve a period of time in jail or prison and then tell the defendant that he or she does not have to go to trial or serve all of the time, as long as the defendant successfully completes the terms and conditions of probation. If the defendant does not successfully complete probation, then the court has the option of incarcerating the offender for the balance of the time that was suspended.

What is a "nolo contendre" plea?

The term "nolo contendre" means "no contest." There are cases in which a person may decide that it is better not to contest the charges but does not want to plead guilty for other reasons. For example, a driver is involved in a motor vehicle accident and receives a ticket for speeding. The driver does not want to contest the ticket but does not believe the accident was his or her fault. The driver does not want to admit in criminal court that he or she was speeding because the admission could be used against the driver in civil court. A nolo contendre plea is not an admission of guilt and could not be used against the driver in civil court.

I was arrested and charged by complaint in state court. What happens next?

The bail bondsman or deputy sheriff at the jail should have given you a piece of paper with your first court date written on it. The first court date is your initial appearance. At your initial appearance the judge will advise you of your rights, the charge(s) against you, and the potential punishment if convicted.

If you plead not guilty, the court will probably set a time and date for a dispositional conference. The purpose of the dispositional conference is to make the prosecution and the defense discuss your case in the hope of arriving at a plea bargain. If a plea bargain is reached, then you go before a judge, present the plea bargain, get sentenced, and your case is finished.

Should you be charged with a class 2 misdemeanor and be unable to reach a plea bargain at the dispositional conference, then a trial date will be scheduled.

Should you be charged with a class 1 misdemeanor or felony and be unable to reach a plea bargain at the dispositional conference, then the court will schedule a preliminary hearing.

If you are bound over for trial following the preliminary hearing, the judge will establish a motion deadline, plea deadline, plea date, and trial date at the conclusion of the preliminary hearing.

What is a preliminary hearing?

A preliminary hearing is a safety valve. The purpose of the preliminary hearing is to make the prosecution show the court that law enforcement was justified in stopping and investigating you and that there was probable cause to arrest you.

Probable cause means more likely than not. If the judge feels that the state had a reasonable articulate suspicion to stop and investigate and probable cause to believe that a crime was committed and you did it, then the judge will bind you over to stand trial.

Your constitutional rights control what happens at a preliminary hearing. You have the right to a lawyer, you are presumed innocent, the state has the burden of proof, you have the right to remain silent, and you have the right confront and cross-examine witnesses brought against you. The only way the state can show probable cause is by placing its witnesses on the stand. Your lawyer has the right to cross-examine the witnesses against you.

The defense loves preliminary hearings for two reasons. First, we are able to discover all the evidence the witnesses have against you. Second, it provides the defense with the opportunity to set up the prosecution witnesses for impeachment at trial. It is for these reasons that the prosecution often uses a grand jury.

I was arrested and charged by grand jury indictment in state court. What happens next?

An indictment is a piece of paper signed by the foreperson of a grand jury charging you with the commission of a crime. The grand jury system was originally intended by our forefathers to serve as a protection against governmental abuse. The concept was to give the citizens the power to determine whether a crime was committed. The grand jury is composed of six to ten persons for the purpose of investigating public offenses. Grand jurors serve a limited term and are randomly selected from the voter registration and driver license lists. The Minnehaha County grand jury meets at least two days each week.

In theory, the grand jury is supposed to function as a sword and a shield. The grand jury functions as a sword striking down criminal conduct. It functions as a shield to protect the innocent from being wrongfully charged by the prosecuting authorities.

In reality, defense lawyers joke that a prosecutor can indict a ham sandwich. The reason for this is because of the manner in which a grand jury functions.

Grand jury proceedings are secret. The only persons permitted to appear before the grand jury are the prosecutor and the witness. Neither the accused nor defense counsel have a right to be present and observe grand jury proceedings. The accused does not enjoy the right of confrontation or cross-examination. The grand jury is only permitted to hear the testimony that the prosecutor wants it to hear. Predicated upon testimony presented by the prosecutor, the grand jury determines whether there is probable cause to believe that a crime was committed and whether you did it.

Most felonies in South Dakota are prosecuted by grand jury indictment. Many misdemeanors are increasingly being prosecuted by grand jury indictment. Nearly all federal cases are prosecuted by indictment.

The bail bondsman or deputy sheriff at the jail should have given you a piece of paper with your first court date written on it. The first court date after indictment is called an arraignment. At your arraignment, the judge will advise you of your rights, the charge(s) against you, and the potential punishment if convicted.

The court will then assign your case to a specific judge, set a dispositional conference date, motion deadline, pretrial conference date, and a trial date.

I have been charged with a crime in federal court and if convicted am facing the United States Sentencing Guidelines. What should I do?

You need a lawyer. You should hire a lawyer as soon as possible. If you cannot afford an attorney, the federal court will appoint either the federal defender or another lawyer to represent you.

It is my opinion that federal charges are more difficult to handle than charges in state court. The rules are different in federal court and everything takes more effort to do.
In addition, the defense is not provided certain discovery materials until the Friday before trial which complicates trial preparation.

Finally, if you plead guilty or are convicted at trial, you must then prepare for sentencing. Sentencing in the federal criminal justice system is extremely complicated due to the United States Sentencing Guidelines.

Congress created the United States Sentencing Commission for the purpose of establishing sentencing policies and practices for the federal courts that will "assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes." It is not unusual to spend several days writing briefs and a day in trial arguing over the applicability of the Guidelines to your case.

It is very difficult to generalize about cases in federal criminal court. Please call me if you have specific questions about a federal charge.

Should I go to trial?

This is the ultimate question. The accused is entitled to copies of all police investigation reports, to inspect all the physical evidence, and to interview all prosecution witnesses. It is only after this discovery has been completed that a lawyer can evaluate a case. Each case must be evaluated on its own merits.

I usually sit down with my clients and prepare a balance type sheet. On the left side of the paper, we list the evidence that the state will rely on in support of conviction. On the right side of the paper, we then list the evidence that the defense will rely on in support of acquittal. If we believe that the balance is in favor of the state, then it may be wise to explore our plea bargain alternatives. If we believe that the balance is in favor of the defense, then it may be worth the risk and expense of going to trial and rolling the dice in front of a jury.

I think my friend got a better deal in court. How come?

People tell me that they do not trust lawyers, they do not trust prosecutors, they do not trust judges, and that the system does not work. My response is that there are no absolutes. Each case has its own strengths and weaknesses. Lawyers are different, juries are different, and judges are different.

Law deals with human behavior. It is not a precise mathematical science. I tell my clients that whether they are guilty or innocent does not matter. The only thing that matters is whether the prosecution can meet its burden of proving the defendant guilty by evidence beyond a reasonable doubt.

Jury verdict forms have two blanks. One verdict blank says "guilty." The other verdict blank says "not guilty." There is no blank on the verdict form that says "innocent."

Juries never find the accused innocent. They simply determine that the prosecution failed to meet its burden of proof.

For these reasons, it is often impossible to explain why someone else received a sentence that may be different than what is being offered to you without knowing all of the facts and details related to each case.

Do I need a trial lawyer?

Absolutely. Your personal freedom is at stake in criminal cases. My job as a trial lawyer is to understand the law, explain the law to my clients, present my clients with options, and be able to try a case.

Prosecutors know whether a lawyer has the ability to successfully try a case in front of a jury. If the prosecutor believes that your lawyer does not have the ability to try a case, it may impact upon your options.

Trial experience is critically important in practicing criminal defense. Your lawyer has to be able to stand in front of the jury as your advocate. When you interview a lawyer for the privilege of representing you, ask about his or her trial experience. Find out the type of cases handled, number of jury trials, and length of trials.

What do you charge for representation in criminal cases?

I usually charge by the hour together with reimbursement for costs and sales tax. I also ask for a retainer prior to starting a case. A retainer is money that you deposit with me to cover all or part of the estimated legal fees.

Please call me at 339-0780 to discuss your case and legal fees.

Yes, I think you do. Most people never expect to be in this position and do not have any experience in dealing with this type of situation.

Insurance companies are some of the richest and most powerful corporations in America. They make money by selling policies, collecting premiums, and avoiding paying on claims.

The other party's insurance company does not owe you anything unless it voluntarily agrees to pay you or a jury determines liability and the amount of your damages. The law does not impose a duty on the other party's insurance company to treat you fairly.

The insurance company claim's agent is a professional. His or her job is to settle your claim as quickly and cheaply as possible. The insurance company is a business. Its interest lies in the bottom line. Paying your claim is against its best interest.

Personal injury law is complex. There are time periods in which notices must be given, statutes of limitations for resolving or filing lawsuits, and rules of evidence. You need a professional to assist you with the law and combat the insurance company claim representative.

Will my case go to trial?

Most personal injury cases result in an out of court settlement negotiated between the parties. A negotiated settlement is one in which both sides try to predict what a jury will do and settle the case accordingly.

Do I need a trial lawyer?

I think you do. While it is true that most personal injury cases settle without going through a jury trial, the goal is not merely to settle your case. The goal is to reach a fair settlement in which you receive reasonable compensation for your injuries.

Insurance companies did not grow rich and powerful by being stupid. Insurance companies know whether a lawyer has the ability to successfully try a case before a jury.
If the insurance company believes that your lawyer does not have the ability to try a case in front of a jury, then you will not be offered a reasonable settlement. If the insurance company believes that your lawyer has the ability to successfully try a case before a jury, then you are going to receive larger settlement offers and have a better chance of obtaining reasonable compensation for your injuries.
There are also some personal injury cases that simply have to be tried. There may be liability issues, factual disputes, or questions involving damages that only a jury can resolve. In such cases, you need a lawyer who can stand in front of the jury and be your advocate. You need a lawyer that can talk to the jury in a language that the jury understands, that can articulate the law to the jury, and that can instill in the hearts and minds of the jurors the desire to award you reasonable compensation for your injuries.

Some lawyers never go to court. Some lawyers do not handle jury trials. To be a good trial lawyer, you have to regularly try cases.

Any person with a license to practice law can place an advertisement in the telephone book or on television asking for the privilege of representing you in a claim for personal injuries. (My own advertisement appears in the Qwest Dex telephone book on yellow page 25.) In talking with lawyers about handling your case, ask them about their jury trial experience. Find out how many jury trials they have handled, the types of cases, and how long the trials lasted.

For these reasons, I believe that you have a much better chance of obtaining reasonable compensation when you use the services of a trial lawyer.

How long do I have to resolve my claim?

South Dakota law limits the time for you to either settle your case or file a lawsuit. These laws are called statute of limitations. The amount of time depends on the type of case and the identity of the other party.

For example, you typically have three years in which to either settle or file a lawsuit in a claim for personal injuries sustained in a motor vehicle accident. However, if the defendant worked for a municipality and was driving a city vehicle at the time of the accident, then you are required to give notice to the municipality within 180 days of the accident and have your claim settled or suit filed within two years.

Generally speaking, medical malpractice claims must be commenced within two years after the malpractice occurred. Legal malpractice claims must be commenced within three years after the malpractice occurred.

It is very difficult to be more specific regarding the applicable statute of limitations without knowing all the facts involved in your case. Please contact me and I will answer your questions.

What is my case worth?

The legal system is not able to heal your injuries or ease your pain. The only thing a judge or jury can do is award you reasonable compensation for your injuries. The question in each case is what is reasonable compensation.

The nature and extent of your injuries determines the amount of reasonable compensation that you receive. It generally takes between six months and one year for a person to recover following an injury or surgery. Once your doctor says you are at maximum medical improvement and not going to get any better, then it may be necessary to have you evaluated by a specialist to determine if your injuries are permanent. Your case is ready for evaluation and settlement negotiations can begin after it is determined whether you have sustained a permanent injury.

Factors that may be considered by a jury in awarding you reasonable compensation include, among others, medical expenses, lost wages, out-of-pocket expenses, pain and suffering, mental anguish, permanent injury, loss of capacity of the enjoyment of life, and diminishment in earning capacity.

It is only after you have reached maximum medical improvement, underwent an evaluation to determine if you sustained a permanent injury, and accumulated all the information related to the factors described above that a lawyer can make an intelligent estimate as to the value of your case. In evaluating these factors and making an estimate, I rely on my personal experience in trying and settling cases, I monitor other injury cases that have gone to trial by jury in this area, I utilize resources from the South Dakota Trial Lawyers Association and the American Trial Lawyers Association, and I subscribe to a computerized nationwide jury verdict research system.

In summary, it takes time and requires a great deal of information before a lawyer can give you an honest and thoughtful estimate as to the value of your case.

Who will pay for my medical bills?

The other party's insurance company may not be under any obligation to pay for your medical bills until settlement or trial. The problem is who is going to pay for your medical bills while your case is pending.

No one wants creditors calling at home and demanding payment for medical bills. The other party's insurance company knows this. They like to use creditor harassment as a means of forcing you to quickly and cheaply settle your case.

Your health should be your first concern. If you are hurt, seek competent medical treatment. Most importantly, follow your doctor's advice.

If you were injured in an automobile accident, you should have medical payment coverage on your automobile policy. Contact your insurance company and request that they pay your medical bills. You paid for the coverage so use it. Your insurance company will get the money back as they are protected by subrogation.

If you exhaust your automobile medical payment coverage, then submit the medical bills to your health insurance company. Again, you paid for this insurance and your health insurance company will be protected by subrogation.

If you were injured as the result of a slip and fall on property belonging to someone else, there may be medical payments coverage on a premises liability policy. This benefit is typically paid irrespective of negligence or fault.

If you do not have any insurance coverage, I will contact your health care providers and promise to pay them upon completion of your case. Most doctors will understand this situation and work with you.

I had an automobile accident, who will fix my car?

Your automobile insurance policy will replace or repair your vehicle regardless of fault if you had collision coverage. You should contact your insurance agent, report the accident, and follow their instructions to get your vehicle fixed. Your insurance company will then pursue the other driver for reimbursement if appropriate.

If you did not have collision coverage, then you could be at the mercy of the other driver's insurance company as to whether they will admit responsibility and fix your car. Generally speaking, in cases where the other driver is clearly at fault, his or her insurance company will want to promptly repair or replace your vehicle in order to avoid having to pay you interest. Remember, in most cases the other driver's insurance company is also responsible for providing you with a rental vehicle while your car is being repaired or replaced.

I was injured by a person who did not have automobile insurance, what can I do?

This is frustrating. You have several options. First, South Dakota law requires all drivers to have automobile insurance. The other driver should have received a ticket for not having insurance or been charged with some other crime and have to appear in criminal court. The judge will order the other driver to make restitution (reimburse you for your losses) as part of his or her sentence or else go to jail. You should contact the Minnehaha County State's Attorney, 605-367-4226, and request to speak to a Victim's Assistant regarding restitution.

Second, you should have medical pay coverage under your automobile insurance policy that you can use to pay your medical bills. You also should have uninsured motorist coverage on your automobile insurance policy that may provide you with reasonable compensation for your personal injuries.

Finally, you may consider bringing a lawsuit against the other driver. South Dakota law provides that if you receive a money judgment for damages as the result of a motor vehicle accident which is not paid, then the state will revoke the judgment debtor's driving privileges. This threat will encourage the debtor to make payments toward satisfaction of the judgment.

Who will pay for my time off work?

This is very frustrating because your options are limited. You should check and see if you have any disability insurance benefits. If so, contact your insurance company and find out if you can file a claim. Should you suffer from a long-term disability and be unable to return to employment, you may be eligible for assistance from the federal government. Please contact the Social Security Administration office here in Sioux Falls.

The other party's insurance company is not under any obligation to reimburse you for lost wages until settlement or trial. The insurance company knows that not working places you in financial distress. Again, the insurance company is using economic distress to force you to consider returning to work before your doctor ordinarily would so recommend and to quickly and cheaply settle your case.

What about my family, are they entitled to compensation?

A husband or wife may have a claim for loss of consortium related to your personal injury. Married persons have a right to the love, affection, society, and companionship of their spouse. Should your personal injury impact upon the marital relationship, then your spouse may also have a claim for reasonable compensation.

South Dakota law presently does not permit a claim for compensation by children for personal injuries sustained by their parents.

What is subrogation?

Subrogation is the right of your insurance company to seek reimbursement for monies it pays to your health care providers or to repair your car due to another person's negligence. For example, your automobile insurance policy pays $2,000 to your doctor for treatment because of an automobile accident caused by another person. Your insurance company would have a right to reimbursement for the money it paid from the person who injured you.

Can I afford to hire a lawyer?

I handle most personal injury cases on a contingency fee basis. This means that I charge a percentage of what you recover as legal fees. If I do not recover any money for you, then you do not pay any attorney fees.

There is no charge for consultation on injury cases. This consultation is similar to a job interview. You need to meet me and decide whether you want to trust me to handle your case. I need to meet you and decide whether I want to provide you with legal representation. I will meet with you at your convenience in my office, your home, or place of business.

I typically advance the cost of litigation as we proceed toward resolving your case. However, the law requires clients to reimburse all costs advanced regardless of the outcome of the case.

Please call me at 605-339-0780 to discuss your case.