Criminal Law: Procedure FAQ

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  • What is the difference between a felony and a misdemeanor?

  • Can I "settle" the charges against me?

  • If you make a plea bargain with the police department to reduce charges, will the district attorney back the police department's promise?

  • Is there a statute of limitation for filing criminal charges?

  • Whom does the public defender work for?  How closely do they work with the district attorney?

  • Why do some people have to post bond to get out of jail and others don't?

  • What is the difference between an arraignment and a preliminary hearing?

  • What does "pretrial release" mean?

  • What does the "no contest" plea mean?

  • Does deferred prosecution mean you have to admit to the crime you've been accused of?

  • Does community service or probation still appear on your permanent record?

  • What is double jeopardy?

    Q: What is the difference between a felony and a misdemeanor?

    A: A misdemeanor offense is charged for a relatively minor crime while more serious crimes are felonies. The difference between the two is often noted in the punishment given. Punishment for a felony carries more than a year imprisonment in a penitentiary, while those convicted of a misdemeanor often serve a year or less confinement, but not in a prison. Conviction of either a felony or misdemeanor may also carry fines or probation.

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    Q: Can I "settle" the charges against me?

    A: A "settlement" is generally associated with an agreement reached in a civil case by the parties involved. In a criminal case, a prosecutor may offer a "plea bargain" but it isn't required, nor can a defendant demand it. A plea bargain can be offered by the prosecutor and may include:
    • A reduction in the seriousness of the charge
    • An agreement to reduce the number of charges filed in return for a guilty plea, or cooperation with other cases

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    Q: If you make a plea bargain with the police department to reduce charges, will the district attorney back the police department's promise?

    A: Not necessarily. Police and other law enforcement agents (such as the DEA or FBI) do not have the ability to make binding plea agreements or sentencing concessions. Only a prosecutor can make a binding promise that you'll not be charged with a crime or that you'll receive a lighter sentence if you cooperate, confess or agree to plead to lesser charges.

    Police can tell you that they'll make your cooperation known to the prosecutor. They can tell you they'll recommend to the prosecutor that you receive a more lenient sentence or that all or some charges not be filed against you. But they can't make promises that are binding on a judge or a prosecutor.

    If the police have made you such a promise, seek legal counsel in your area to confirm the promise with the prosecutor before you rely on it.

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    Q: Is there a statute of limitation for filing criminal charges?

    A: For all cases except murder, each criminal offense has its own statute of limitation. The time a prosecutor has to file a complaint varies widely from state to state.

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    Q: Whom does the public defender work for? How closely do they work with the district attorney?

    A: Public defenders are paid by the state, as are district attorneys. But their functions and responsibilities are very different. The district attorney represents the citizens of his or her state in prosecuting crime. A public defender represents individuals who are charged with committing crimes. Once assigned to a case, a public defender's loyalties are undivided and lie with the accused person he or she represents.

    The district attorney is the adversary of the public defender. But as many cases are resolved by plea bargains, which usually involve an offer made by the district attorney to counsel for the accused, it may seem like the public defender and district attorney work closely together. And it may well be that particular public defenders and district attorneys have a good working relationship, particularly if they're assigned to the same courtroom for months at a time.

    But make no mistake about it: public defenders and district attorneys are not "in cahoots." Public defenders are as committed to their clients as are private criminal defense attorneys. On the whole, public defenders perform at least as well as private attorneys and for far less pay and often less glory.

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    Q: Why do some people have to post bond to get out of jail and others don't?

    A: In determining the amount, if any, of bail that needs to be posted, a judge will consider:
    • The type and seriousness of the charges
    • Any prior failures to appear
    • Previous criminal record
    • Connections to the community
    • The probability that you'll appear in court

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    Q: What is the difference between an arraignment and a preliminary hearing?

    A: Generally, a preliminary hearing is a hearing at which the judge decides whether there is sufficient evidence to make you stand trial on the charges that have been filed against you. The judge's decision at a preliminary hearing is the equivalent of the decision that a grand jury would make in deciding whether to return an indictment against you. The prosecution must establish "probable cause" of two things: that a crime was committed and that you committed it. "Probable cause" is a low standard of proof. Think of it like "reason to believe." It doesn't rise anywhere near the level of "proof beyond a reasonable doubt" or even "preponderance of the evidence," which is the standard used in civil cases.

    The rules of evidence are relaxed at preliminary hearings. Hearsay is allowed. Evidence comes in without consideration of whether it was legally collected.

    Preliminary hearings are used in cases in which the prosecutor has filed the charges without going through the grand jury. If the grand jury has reviewed the case and returned an indictment, the "probable cause" determination has been made by then and no preliminary hearing is necessary.

    In most states, it is at the arraignment, not the preliminary hearing, that a person enters a plea of guilty or not guilty. In some places, the arraignment occurs immediately after the preliminary hearing. In others, the arraignment is scheduled for a future date.

    You're permitted to waive a preliminary hearing, and it's fairly common to do so. If you waive the hearing, you're not pleading guilty; you're just admitting that probable cause exists to make you stand trial on the charges. The waiver is sometimes accomplished by filling out a form in court. Oral questioning by the judge to make sure you understand you're giving up the right to have the hearing may also do it.

    You should discuss any decision on whether to have or waive a preliminary hearing with a qualified criminal defense attorney.

    An arraignment is a court hearing at which you enter a plea of guilty or not guilty to the charges that have been filed against you. If you're contesting the charges, your plea will be not guilty.

    Assuming you've been granted bail after your arrest, it's unlikely bail would be revoked at your arraignment. Bail usually continues through trial or a guilty plea, and in most places through sentencing.

    But it's possible the prosecutor would ask the judge to either increase or revoke your bail:

    • If you violate the terms of your bond or commit another crime while on bail
    • If the government receives information that you intend to flee before trial or that you lied about your prior criminal history in your bail application
    • If more serious charges are filed against you while you're waiting for trial

    In most, if not all, cases, you or your lawyer would be provided notice of the prosecutor's intent to request an increase in the amount of your bail or revoke bail, and you'd have an opportunity to contest the request at a hearing before any action is taken on your bond.

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    Q: What does "pretrial release" mean?

    A: Pretrial release is similar to bail. When a person is arrested on federal criminal charges, she is assigned to a pretrial release officer who'll review her personal history - including ties to the community, close family and other relationships, employment history, and prior record - and then make a recommendation to the federal court as to what, if any, bail would be appropriate for this individual.

    The federal criminal justice system is unlike many state systems where bail is always set. For many federal offenses, including drug offenses, the government can request that no bail be set and the person detained in custody pending trial as a flight risk or a danger to the community. The pretrial release officer operates independently of the prosecutor and court, and forms her own opinion as to whether the person should be denied bond or not. Pretrial release officers don't generally ask questions about the current offense you're trying to "bond out" on, so there isn't any reason not to be honest with them about your family, financial and employment history. Cooperation with this officer may help get you released on bond. You should always have your lawyer present when providing information to a pretrial release officer or any other government agent.

    Assuming the court decides that bail should be set, it will attempt to set it in an amount that you can meet. If it's set too high, you can go back to court in a short period of time and explain why the bail is too high. In all likelihood, it should be lowered. In the federal system, once the court decides you are bondable, bond should be set in an amount and with conditions you can meet.

    Bondsmen have a far lesser role in federal criminal cases than state cases. This is because the federal court may act as the bondsman by allowing you to post 10 percent of the amount of your bond with the court, and post the remainder with the court through your own promise to appear, or by accepting collateral such as real estate. When the case is over, the court (unlike the bondsman) returns your 10 percent and your collateral.

    If you'll be meeting soon with a pretrial release officer, it might be worthwhile for you and your lawyer to put together a package of assets and conditions you find agreeable as part of your bond, and take them to the pretrial officer and explain why they're sufficient to secure your appearance at trial. If you can sell her on the package, it's more likely she'll go to bat for you with the court.

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    Q: What does the "no contest" plea mean?

    A: There are three possible pleas to a criminal charge- guilty, not guilty and "nolo contendere" or "no contest." A plea of "no contest" means you don't contest the charges against you. While a "no contest" plea isn't an admission of guilt, it does allow the court to impose a sentence on you. In practical effect, there's no significant difference between a "no contest" plea and a guilty plea.

    Why would you want to plead "no contest" instead of "guilty?" If you don't agree that you're guilty, but you believe a judge or jury might find you guilty anyway, you may not want to risk going to trial. In this situation, you may want to agree to an arrangement by which you're allowed to plead "no contest" to the charge, or to a lesser charge, because it'll resolve the case without a trial and won't require you to admit your guilt to criminal acts.

    Like a guilty plea, a "no contest" plea waives important constitutional rights, including the right to trial by jury and to confront the witnesses against you. And unless there's some sort of agreement for a deferred adjudication, the court may sentence you on a "no contest" plea as if you pleaded guilty, and you'll have a record of conviction.

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    Q: Does deferred prosecution mean you have to admit to the felony you've been accused of?

    A: No. Generally, there are two types of deferred resolutions to criminal charges: a deferred prosecution and a deferred judgment.

    In a deferred prosecution, the proceedings in a criminal case are put off for a period of time, say one year, subject to certain conditions. The typical condition is that the defendant not be charged or convicted of other crimes during this period. At the end of the time period, if all conditions have been met, the charges are dismissed. No plea of guilty or judgment of conviction is entered. If the defendant doesn't comply with the conditions of the deferred prosecution, the prosecution of the case continues and the defendant can either plead guilty or proceed to trial.

    With a deferred judgment, the defendant must enter a plea of guilty. The case is continued for a period of time subject to certain conditions, usually including that the defendant not be convicted of another crime. If the defendant abides by the conditions, at the end of the time period the guilty plea is considered withdrawn and no judgment of conviction or sentence is entered. While the defendant is free to say he's never been convicted of a crime, the guilty plea could have possible future ramifications. For example, deferred judgments are counted in computing a defendant's criminal history score under the federal sentencing guidelines.

    In addition, if the defendant violates the terms of a deferred judgment, the guilty plea is binding and the court will proceed to sentencing, without a trial. Obviously, from a defendant's standpoint a deferred prosecution is preferable to a deferred judgment. Prosecutors also offer it far less frequently.

    You should discuss any decision on whether to take a deferred prosecution or deferred judgment with a qualified criminal defense attorney. Lawyers.com has a free service called Lawyer Locator that can help you find a lawyer in any city and state in the United States.

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    Q: Does community service or probation still appear on your permanent record?

    A: Community service and probation are types of criminal sentences. You can only be sentenced after you've either pleaded guilty to a crime or been found guilty by a judge or jury.

    If you pleaded guilty on a deferred judgment or sentence, a diversion program or a deferred adjudication, you won't have a permanent record once you successfully complete the terms of the probation or community service. At that point, the law for all practical purposes considers the guilty plea withdrawn as if it was never entered. There are, however, some circumstances in which you can still be penalized for it. For example, deferred sentences count as one point in computing your criminal history under federal sentencing guidelines.

    If you pleaded guilty with no express conditions as to the deferment of the sentence or conviction, or if you were found guilty following a trial to the court or jury, you'll have a permanent record.

    If you pleaded guilty and don't know whether it was pursuant to a deferred sentence type of arrangement, you can go to the courthouse where you entered your guilty plea and ask to see your file. There will be a docket sheet or other listing of court minutes inside, containing the terms of your plea and sentence, including whether the judgment was deferred.

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    Q: What is double jeopardy?

    A: The double jeopardy clause, contained in the Fifth Amendment to the U.S. Constitution, protects individuals from being tried twice for the same crime by the same sovereign, federal or state, although each may bring charges for the same offense. The clause protects an individual or business from:
    • A second prosecution for the same offense after acquittal
    • A second prosecution for the same offense after conviction
    • Multiple punishments for the same offense

    A single crime may contain multiple elements such as burglary, kidnapping and rape. Each element can be prosecuted via separate trials or jointly during the same trial without raising a double jeopardy situation. However, once the final judgment is reached with regard to each element, then double jeopardy typically would apply. If a case ends in a mistrial or hung jury, generally the case can be retried without causing a double jeopardy situation, as there was no final decision.

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