Criminal Defense Issues
Criminal Law Frequently Asked Questions
When do I have the Fifth, and Fourteenth, Amendment right to remain silent?
Always. You never need to answer questions presented to you if you are questioned by government investigators, whether FBI, DEA, IRS, or the state or local police. Under certain circumstances, after a judge has ordered you to testify, you may be compelled to testify. However, these circumstances are carefully circumscribed and you should have already obtained the assistance of counsel.
I’m innocent! Why should I be concerned about being criminally prosecuted?
People are not prosecuted because they are guilty. People are prosecuted because government investigators and prosecutors believe they have evidence consistent with the suspect’s guilt. Prosecutors and investigators may suspect you have done something wrong, when you haven’t. They may also have evidence consistent with your having done something wrong, when you haven’t. Even if you are innocent, you should not speak to the authorities.
If I have been convicted of a crime, can I appeal?
Under most circumstances, yes. However, there is normally a very limited time in which you can file a notice of appeal, which is how you notify the court in which you were convicted that you are appealing to the court that will review your conviction. You should immediately file a notice of appeal with the court in which you were convicted.
What is the grand jury?
A grand jury is a group of citizens, usually 23, who sit and hear testimony and receive other evidence to determine if there is sufficient evidence to charge someone with a crime. If 12 or more grand jurors decide that there is enough evidence, based upon the applicable standard of proof, they vote to charge the defendant. The accusation is called an indictment.
What is an indictment?
An indictment is an accusation. Being indicted does not mean that you are guilty. It only means that you have been accused of a crime, or more than one crime. If you have been indicted, then usually at least one of the crimes of which you have been accused is a felony.
If I am arrested, will I have to spend any time in jail?
That depends on a number of factors. In many jurisdictions, for less serious charges you may be released after the police process you under the condition that you return to court on some date in the future for your arraignment. You may, however, be held in jail until your arraignment. If you are, you should see a judge within 24 to 48 hours after your arrest. At your arraignment, the judge will make a determination whether to set bail in your case, to hold you without bail, or to release you without requiring bail. If the judge does release you, he or she may release you under certain conditions designed to assure the judge that you will obey the law and return to court when scheduled to do so.
What is an arraignment?
An arraignment is when a criminal defendant is first brought before a judge. During the arraignment, the defendant is informed of the charges he or she faces. In addition, a determination is normally made regarding whether bail will be set, and if so, under what conditions.
If I am concerned about the possibility of a criminal investigation, when should I get an attorney?
Immediately. An experienced criminal defense lawyer can guide you through the process, explain the risks involved with various legal approaches, can contact the investigators or prosecutor to learn the nature and focus of the investigation. In addition, if you are contacted by an investigator, you can, and should, refer the investigator to your attorney, and therefore eliminate the chance that you will say or do something that might prejudice your legal rights.
Do I have the right to a trial before I can be convicted?
Yes. In fact, if you face the possibility of a sentence that either exceeds six months in jail or is death, you have the right to a jury trial. At a trial, the government has to present evidence in order to prove you guilty beyond a reasonable doubt. In addition, your attorney has the opportunity to cross examine the government’s witnesses, bring in witnesses and obtain other evidence on your behalf, and make opening and closing statements arguing for your innocence.