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Criminal Law: Procedure FAQs

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

A: A "settlement" is an agreement made by parties in a civil (non-criminal) case, like a personal injury lawsuit. In a criminal case, a prosecutor may offer a deal called a "plea bargain." But she isn't required to do so, 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
- A recommendation to the judge that you receive a lighter sentence than the one you could get if convicted after a trial

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 plead guilty to a crime or are found guilty by a judge or jury.
If you plead guilty on a deferred judgment or suspended sentence, you won't have a permanent record once you successfully complete the probation or community service. At that point, the law considers the guilty plea withdrawn as if it was never entered.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 plead guilty with no deferment of the sentence or conviction, or if you are found guilty following a trial, you'll have a permanent record.
If you pleaded guilty and don't know whether it was 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.

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 go 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 satisfies these 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 goes into effect 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.
It's a good idea to discuss any decision on whether to take a deferred prosecution or deferred judgment with a qualified criminal defense attorney.

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) don't have the power or authority to make binding plea agreements. 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, talk to an attorney about making sure the prosecutor will honor the promise.

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

A: Generally, yes. Almost every state has a time limit on how much time the government has to charge you with most crimes. The time limits vary by state, and federal laws are different, too. Sometimes, though, there's no time limit at all. For instance, in most states, there's no time limit for murder or some sex-related crimes against children. So, a person could be charged with some crimes 5, 10, or even 50 years after the crime was committed.

Q: What does "pretrial release" mean?

A: Pretrial release is similar to bail. How it works depends on whether state or federal law applies to the case.

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 her.

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're 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% of the bond amount with the court, and then posting the remainder through your own promise to appear, or by giving collateral, such as real estate. When the case is over, the court (unlike the bondsman) returns your 10% 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.

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 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.

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.

Q: What is double jeopardy?

A: The Double Jeopardy Clause in the Fifth Amendment to the US Constitution protects individuals from being tried twice for the same crime by the same government. 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 though 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 usually applies.
If a case ends in a mistrial or hung jury, generally the case can be retried without causing a double jeopardy problem because there was no "final" decision of the case.

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

A: A misdemeanor is a relatively minor crime, like shoplifting. More serious crimes are felonies, like rape or murder.
The major difference is the punishments or sentences for each. Punishment for a felony usually includes more than one year in a state or federal penitentiary or prison, and possibly death. Misdemeanor convictions, on the other hand, usually result in a sentence of less than one year in a state or county jail (from a few days to a several months).
Sentences for both misdemeanor and felony convictions may include a fine in addition to time in jail or prison.

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

Generally, a preliminary hearing is where a judge decides whether there's enough evidence to make you stand trial on the charges filed against you. The judge's decision at a preliminary hearing is like the decision a grand jury makes 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, and evidence may be used against you regardless of whether was legally collected or "seized."

Preliminary hearings are used in cases in which the prosecutor files the charges without going through the grand jury. If the grand jury reviews the case and returns an indictment, the "probable cause" determination is made by the grand jury, and no preliminary hearing is necessary.

In most states, it's at the "arraignment," not the preliminary hearing, that a person enters a plea of guilty or not guilty. In some states and counties, the arraignment happens 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 will be revoked or cancelled at your arraignment. Bail usually continues through trial or a guilty plea, and in most places through sentencing.

But it's possible the prosecutor may 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 will be notice notice of the prosecutor's intent to ask that your bail be increased or revoked. This gives you a fair chance to challenge the request at a hearing before any action is taken on your bond.

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 or prosecutors. But their functions and responsibilities are very different. The district attorney represents the citizens of his state. 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 represents.
The district attorney and public defender are adversaries. However, because many cases end in plea bargains, which usually involve an offer made by the district attorney to the public defender, it may seem like the two work closely together. And it may well be that particular public defenders and district attorneys have a good working relationship, especially 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.

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
Sometimes there is no bail, but rather the accused is set free on his "own recognizance," or "O.R." All he has to do is promise to show up at court for trial; there's no money or collateral involved.

Courts look at a variety of factors when deciding to release a defendant O.R., the most important factor is the likelihood that the defendant will flee to avoid trial. The judge may look at:
- Whether the defendant's family lives in the area and how long the defendant has lived there
- His past criminal record
- Whether he has a job in the area