These answers are meant to provide general information regarding common questions asked to criminal defense lawyers. Nevertheless, every case must be analyzed individually. This information is not a substitute for consulting with an experienced criminal defense lawyer about your case. This information is also not meant to give legal advice, but is meant solely for general informational purposes.
Criminal Defense In Federal Court:
These answers are meant to provide general information regarding common questions asked to criminal defense lawyers. Nevertheless, every case must be analyzed individually. This information is not a substitute for consulting with an experienced criminal defense lawyer about your case. This information is also not meant to give legal advice, but is meant solely for general informational purposes.How long will it take to resolve my case if I am charged with an offense in federal court?
What are some of my important rights in federal court?
How do the sentencing guidelines work in federal court? Am I eligible for probation?
I am charged with a drug offense in federal court and have heard that there are severe penalties for drug cases in federal court, is that true?
I have been offered a plea bargain instead of going to trial in federal court, should I accept the plea bargain?
I have to meet with a probation officer who will be preparing my presentence report, should my lawyer go with me to this meeting?
I either lost my trial or pleaded guilty in federal court, but I am not satisfied with the outcome, is there anything I can do?
Will I serve my whole sentence in a federal case?
How long will it take
to resolve my case if I am charged with an
offense in federal court?
Unlike state court, criminal cases tend to
progress quickly in federal court. Generally,
the Speedy Trial Act requires that an indictment
must be sought within thirty days of a person's
arrest. Similarly, although there are exceptions
for complex cases and cases requiring pretrial
motions, the Speedy Trial Act requires that
a case be tried seventy days from either the
date a person is arrested or the date an indictment
is returned against the person, whichever
is later.
What are some of
my important rights in federal court?
• You have a right to refuse to make
any statements. If you have a lawyer, never
make a statement to anybody without talking
to your lawyer first.
• If you are charged with a felony, you
have a right to have your case presented to
a grand jury where a group of citizens vote
as to whether there is probable cause to believe
you committed the crime charged. If you are
arrested for a felony offense before an indictment
is returned, you have a right to a "preliminary
hearing" where a magistrate judge determines
if probable cause exists to believe you committed
the crime charged.
• You have a right to be represented
by an attorney and to have an attorney appointed
by the court if you can show that you are
unable to hire an attorney.
• You have a right to a detention hearing
if the government seeks to keep you in jail
pending your trial.
• You have a right to discover the evidence
against you.
• You have a right to have the government
prove any charge against you "beyond a reasonable
doubt." The "beyond a reasonable doubt" standard
is the highest standard of proof that exists
in the American justice system.
• You have a right to a speedy jury trial.
Unlike in state court, a jury in federal court
only decides the issue of guilt and innocence,
not the sentence.
• If there is a trial, you have a right
to testify at the trial. On the other hand,
you cannot be forced to testify and, if you
chose not to testify, that fact cannot be
used against you.
• You have a right to use subpoenas to
make witnesses come to court and testify on
your behalf at any trial.
• You have a right, if there is a trial,
to have your lawyer cross examine the government's
witnesses.
• You have a right to appeal your case
and, if you cannot afford a lawyer, you have
a right to an appointed lawyer on appeal.
How
do the sentencing guidelines work in federal
court? Am I eligible for probation?
The sentencing guidelines are very complex
and is the primary reason that you need a
lawyer very experienced in federal criminal
defense if you are charged with a crime in
federal court. The sentencing guidelines calculate
prison sentences using a table that takes
into account, among other things: your criminal
history, all of your criminal conduct, whether
you accepted responsibility for the charges
against you, and your role in the offense.
The sentencing guidelines also determine if
you are eligible for probation or home confinement
(usually only those with no criminal history
or a minor criminal history qualify for probation
or home confinement). Generally speaking,
a judge must sentence you in accordance with
the sentencing guidelines and has very little
discretion in setting your sentence. In limited
circumstances, the judge can "depart" upward
or downward from the sentencing guidelines
in a particular case. Downward departures
are most frequent in cases in which a defendant
cooperates with the government by giving information
regarding other people. Recently the United States Supreme Court decided a case called United States
v Booker. That case made the sentencing guidelines "advisory" for judges
and a judge is no longer absolutely required to follow the federal
sentencing guidelines. Nevertheless, it appears that most judge will follow
the guidelines in a majority of cases. Again, it is important to retain a
lawyer who works with the federal sentencing guidelines on a daily basis and
is familiar with the exceptions to the guidelines and the Booker decision.
I am charged with a
drug offense in federal court and have heard
that there are severe penalties for drug cases
in federal court, is that true?
Yes, this is very true. Most drug cases involve
not only the sentencing guidelines, which
are quite harsh in drug cases, but also involve
mandatory minimum sentences which are dependent
upon the amount of drugs involved. Moreover,
a defendant can be held accountable for drugs
possessed by another person simply if the
defendant and the other person engaged in
"joint criminal activity" and the other drugs
were "foreseeable" to the defendant. Sentences
are particularly harsh in cases involving
crack cocaine. For example, if it is found
that a defendant, with no criminal history,
possessed with the intent to distribute 50
grams of crack (or even if only part of the
50 grams was possessed by the defendant and
the rest was possessed by a coconspirator
and "foreseeable" to the defendant), the defendant
faces a mandatory minimum sentence of ten
years in prison.
I have been offered
a plea bargain instead of going to trial in
federal court, should I accept the plea bargain?
It is impossible to provide a general answer
to this question, although most cases are
generally resolved through a plea bargain.
In deciding whether to accept the plea bargain,
the two most important things is to make sure
you understand all the consequences of the
plea bargain and to make sure you have confidence
that your lawyer is acting with your best
interest in mind.
Some things to make sure you understand before
accepting a plea bargain in federal court:
(1) What will you be admitting to? (2) Does
the plea bargain provide for a specific sentence?
(3) Do you fully understand how the sentencing
guidelines will affect your case and whether
you will be eligible for a downward departure
or subject to an upward departure? (4) Are
there any mandatory minimum sentences that
apply to your case? (5) If you are not a United
States citizen, will the plea bargain affect
your ability to remain in the United States?
(6) If there will be a sentence of confinement,
do you understand how "supervised release"
works? (7) Are you waiving your right to appeal
the application of the sentencing guidelines
or will you be able to appeal how the trial
judge applies the guidelines?
I have to meet with
a probation officer who will be preparing
my presentence report, should my lawyer go
with me to this meeting?
Absolutely. The probation officer will do
the preliminary calculation of your sentencing
guidelines and, therefore, will have a great
deal of influence on your ultimate sentence.
Your lawyer owes it to you to attend this
very important meeting in order to make sure
that nothing is said which could have a detrimental
effect on how your guidelines are calculated.
I either lost my trial
or pleaded guilty in federal court, but I
am not satisfied with the outcome, is there
anything I can do?
Following a trial or plea, you may appeal
your case to the United States Court of Appeals
provided you file a Notice of Appeal within
ten days of the judgment. Also, be sure that
as part of a plea agreement, you did not waive
your right to appeal. If you lose an appeal
in the Court of Appeals, you can then ask
the United States Supreme Court to consider
your case. The United States Supreme Court
picks and chooses the cases it will hear and,
as a result, it hears only those cases raising
issues that might have an effect on many different
cases.
After losing an appeal, you can file a post-conviction
petition for a Writ for Habeas Corpus if you
believe you were denied a constitutional right
or if you believe your lawyer was ineffective.
Again, however, make sure you did not waive
your right to file such petitions as part
of your plea agreement. Finally, keep in mind,
that there are strict deadlines for filing
petitions in federal court and you should
consult with an experienced lawyer regarding
these deadlines.
Will I serve my whole
sentence in a federal case?
Parole has been abolished in the federal system.
If you are sentenced to prison, you are eligible
for fifty-four days good time credits for
sentences of more than one year. Therefore,
you will usually serve eighty-five percent
of your sentence. A criminal defense attorney
experienced in representing individuals charged
in federal court can talk to you about such
things as drug and alcohol rehabilitation
programs which may serve to reduce your sentence.
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