However, recidivism rates are high, thereby suggesting that the average offender does not “learn his lesson” in prison and refrain from further criminal activity. One thing that does correlate positively with a reduction in criminal activity is increasing age; people under the age of thirty-five years commit most crimes. Therefore, it could be argued that sentences that keep offenders in prison until middle age will reduce overall crime rates.
In addition, more time in prison could allow for more complete rehabilitation because the offender could stay in treatment programs for a longer period of time. Batterers are more likely to change the controlling behavior that leads to domestic abuse if they participate in long-term intensive educational programs. Sex offenders may benefit from multi-level treatment plans spread out over a period of time. In prisons with educational programs, offenders who stay long enough may receive high school or college degrees or learn a trade, which will equip them to lead a productive, law-abiding life. However, some states do not provide adequate resources for these rehabilitation programs.
Longer sentences do not appear to deter the general public from criminal activity. Many times, it is the likelihood of getting caught that deters a person from criminal activity, not the length of the sentence. Many crimes are committed on impulse, and the threat of a lengthy sentence does not even enter the offender’s mind.
Finally, the cost of longer sentences in terms of tax dollars is very high. If sentences are lengthened, new prisons and jails will need to be built to accommodate offenders who would be incarcerated under sentencing guidelines and mandatory minimum sentences.
Whether the offender has the intent necessary to be convicted of attempt depends on the mental state required by the underlying crime. If a person’s actual intention at the time he or she attacked the victim was to cause bodily harm, he or she cannot be convicted of attempted murder if the victim does not die. (However, he could be convicted of the actual crime of murder if the victim died, even if his intention was only to cause bodily harm.) Likewise, a person whose plan to steal fails can be convicted of attempted theft, which requires the intention to deprive another of his or her property permanently, only if he or she had the same intention at the time the crime was attempted.
Like most crimes, attempt requires a “bad act” as well as a bad intention. Therefore, the government must prove the offender engaged in conduct that moved toward committing the crime. The exact nature of the act needed to meet this “preparation” requirement varies from case to case, depending on individual facts. For example, a person who checked in at the ticket counter of an airport and sat in the waiting area with a gun in his pocket could be convicted of the crime of attempting to board an airplane with a gun. A person who planned to rob a bank messenger and drove around looking for him on his regular route, but did not find him, and did nothing else would not necessarily be guilty of attempted robbery.
The punishment for the crime of attempt can be the same as the punishment for the completed crime. However, most jurisdictions make some distinction and provide for a lesser punishment for attempt. For instance, some states provide that the punishment for attempted first-degree theft will be the same as the crime of second-degree theft. The Model Penal Code, which is a source of many states’ criminal statutes, generally requires the same punishment for attempt as the punishment for the underlying crime on the rationale that a person who attempts a crime has shown himself to be just as much in need of corrective sanctions as the one who actually completes a crime.
The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. However, if the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and listed on the same schedule of controlled substances. However, the quantities of crack needed to impose a certain sentence are much less than the quantity of powdered cocaine. For example, a person convicted of the crime of delivering 5 grams of crack will receive a sentence in the federal system of five to forty years. To receive that same sentence, a person would have to be convicted of delivering 500 grams of powdered cocaine.
In contrast, the second definition does not refer to any particular BAC; it focuses on the driving behavior of the person. If the person’s driving is impaired by the consumption of alcohol, he or she can be found guilty of drunk driving. Instead of presenting evidence of the BAC to a jury, the prosecution seeking a conviction under this definition generally presents testimony about the person’s driving and consumption of alcohol. A police officer will often describe the impaired driving that lead him to pull the person over and the person’s ability (or lack thereof) to perform field sobriety tests, such as walking a straight line. Evidence is also usually presented concerning the person’s consumption of alcohol. If the jury then concludes that the prosecution has met its burden of proof, it will convict the person of drunk driving. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.
In addition, Congress has become increasingly involved in the “war on drugs” with the creation of various drug statutes. Due to the severity of the penalties, often, local prosecutors prefer to have drug charges prosecuted in federal court rather than file state charges. Most federal laws have as their rationale that the particular crime addressed needs a uniform response nationwide, and due to the nature of drug crimes (particularly distribution), it is difficult to prosecute drug crimes on a state-by-state basis.
Examples of successful federal criminal legislation are the federal gun laws and federal computer laws. The federal gun laws provide uniformity and the federal computer laws make it possible to punish Internet crime.
The U.S. Constitution has always played a role in criminal law because it defines important individual rights that must be preserved even in a state prosecution involving a state crime. The Constitution guarantees a right to a trial by jury in open court, the right to cross-examine witnesses, the right to remain silent (on grounds of self-incrimination), the presumption of innocence, the right to be represented by a lawyer, and the right to be free of cruel or unusual punishment. States are required to pay for attorneys for indigent offenders, and federal agencies provide oversight to state prisons to ensure compliance with these constitutional requirements.
Another challenge to keeping the proceedings secret arises because the prohibition against disclosure often does not apply to a person subpoenaed to appear before a grand jury. Witnesses are free to discuss their testimony with the media or with anyone else, unless the judge expressly orders them not to.
Persons who are the subject of a grand jury proceeding are not entitled to any notice regarding the scope of the investigation or the nature of the incidents under consideration. They are generally not allowed to have an attorney present with them in the grand jury room, but may be permitted to leave from time to time to consult with an attorney outside the grand jury room.
In earlier days, special crimes that only applied to children did exist. These crimes were the so-called status offenses and punished behavior that would not be criminal if committed by an adult. Status offenses included running away from home, skipping school, disobeying parents, and breaking curfew. The federal Juvenile Justice and Delinquency Prevention Act made receipt of federal funds conditioned on eliminating status offenses, and most states have repealed any status offenses. However, these behaviors may still trigger an investigation by child protective services to determine if the child needs assistance from the court or social service agencies.
Typically, an offender has been sentenced to an indeterminate or range of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.
Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.
Many prosecutors are elected officials and as such can be voted out of office if the public does not like the emphasis of their office. Some prosecutors, for instance, may focus most of their efforts and the office’s resources combating property crime, while others may focus on domestic abuse. If the electorate does not like the particular goals of the prosecutor, it can end the practice by failing to reelect the individual or by seeking to have them removed from office.
Many modern-day penal codes no longer use the term “rape”, but instead use sexual abuse or sexual assault to define the prohibited acts. Rape is covered by these statutes and may be designated as sexual abuse in the first degree. However, most sexual assault statutes cover intercourse as well as other sexual acts and apply to homosexuals as well as heterosexuals. Generally, husbands can be charged with sexual assault of their wives, although they may receive a lighter sentence than non-marital sexual assault. Lesser offenses, such as unwanted touching or lascivious acts may be included in the definition of sexual assault.
At the preliminary hearing, a defendant has the right to cross-examine the police officer who testifies against him or her, but such cross-examination is often limited by the judge.
In certain cases, the defendant may choose to “waive” the preliminary hearing – which means that the Commonwealth does not have to present any evidence to the court. Waiving the preliminary hearing is a tactical decision that your attorney will be able to explain to you.
After the reading of the charges, or the waiving thereof, the judge will hear the plea of guilty or not guilty and accept the plea. The case is then scheduled for a pretrial conference.
The attorneys will then speak to the judge and let the court know how the case will proceed.
The pretrial conference gives both sides the opportunity to see how the case will ultimately be resolved. If the case is headed for a full trial, the court needs to be aware of this so that it can be properly scheduled on the docket.
When a lawyer, representing a client in a criminal matter, wants to challenge evidence gathered by the police and to argue that the evidence was gained illegally, the lawyer asks for a suppression hearing.
At the suppression hearing, the judge listens to testimony as to how the evidence was obtained, and decides if the evidence was obtained legally or illegally. If the judge finds that the evidence was gathered illegally, the judge orders the evidence be suppressed – that means the evidence may not be used at the trial of the defendant. If the judge finds that the evidence was gathered legally, then the evidence is not suppressed and may be used at the trial.
A plea bargain is an arrangement between the state and the defendant, whereby the state offers to drop some of the charges against the defendant, if the defendant agrees to plead guilty to the remaining charges.
For example, suppose a defendant is charged with drunk driving, speeding, changing lanes without signaling and possession of a small amount of marijuana. The state might offer to drop the charges for speeding and changing lanes without signaling if the defendant agreed to enter a guilty plea on the charges of drunk driving and marijuana possession.
Depending on the facts of each case, plea bargains can be good for the state and good for the defendant. The state benefits because it does not have to spend the time and effort of conducting a full trial. The defendant benefits because he only pleads to some of the charges, and is not convicted on all of them.
However, plea bargains are not always in the best interests of the defendant, and there are times when a full trial is appropriate. Each case is unique, each case has it’s own particular facts which defense counsel will assess in making a determination of when to accept or reject a plea bargain offer.
The ARD program allows a shorter suspension of your license. The shorter suspension allowed through the ARD program, is sometimes as little as one or two months, depending on the circumstances.
After several years, you can go to court to get the record expunged – cleaned up completely and removed from your past. Only the District Attorney will know, and it will not come back to haunt you, unless you are subsequently arrested for DUI or another crime.
- First Degree Felony (F1): 20 years and $25,000 fine.
- Second Degree Felony (F2) 10 years and $25,000 fine.
- Third Degree Felony (F3) 7 years and $15,000 fine
- First Degree Misdemeanor (M1) 5 years and $10,000 fine
- Second Degree Misdemeanor (M2) 2 years and $5,000 fine
- Third Degree Misdemeanor (M3) 1 year and $2,500 fine
- Summary Offense: The maximum penalty for most non-traffic summary offenses is 90 days in county jail and a $300 fine.
Do not act disrespectfully towards the police or give them a hard time in any way. Always be respectful and polite, even when refusing to speak to the police or declining consent to a search. Whatever you do, never resist arrest, verbally berate an officer or try to run from the police, even if you believe that you did not do anything wrong. If you are in fact, guilty, and the best course of action down the road is to seek a favorable plea agreement, your cooperation or lack thereof at the time of arrest will have a major influence on how favorable your plea agreement will be.
If you are subpoenaed to testify before the Investigative Grand Jury, there is a good chance that you yourself are a suspect or at the very least, someone close to you is a suspect. Wives and girlfriends of suspects are routinely subpoenaed to appear before the Investigative Grand Jury. You should never appear before the Investigative Grand Jury without first consulting with a criminal defense attorney.
Due to the increased prevalence of mandatory minimum sentences, prosecutors have more power than ever before. For example, in most felony drug cases, the prosecutor has more power over sentencing than the judge. Because prosecutors now have so much power, the treatment of similarly situated defendants will often vary tremendously from county to county, based upon the policies of the district attorney in a given county. For example, a felony drug offense that would result in probation in Philadelphia could result in a state prison sentence in Mifflin County.
Usually if a defendant violates probation, he will be re-sentenced to a period of incarceration. If a defendant violates parole, he will normally be sent back to prison. Thus, a person who receives a sentence of probation for possessing drug paraphernalia and a small amount of marijuana would normally receive a sentence of probation, but if he continues to smoke marijuana while on probation, he will end up in jail, even though his only crime was the personal use of marijuana.
In some cases, the police would not have a solid case without a suspect’s confession. In other cases, the evidence is so strong against the defendant that the case can be successfully prosecuted even if the confession is not admissible at trial as a result of a Miranda violation. Imagine the following scenario. A soon-to-be defendant walks into a bar in the town where he has lived all his life, sees the man that the entire town knows is having an affair with his wife, pulls out a gun and shoots his wife’s lover in the back in front of 20 people who all know the defendant. The bartender calls the police, who then stop the defendant on the sidewalk and ask if he just shot the guy who is having an affair with his wife. The defendant answers yes without having been read his Miranda rights. In such a scenario, the confession would be inadmissible, because the police had probable cause to make an arrest and should have read the defendant his rights. However, the prosecution still has a motive and 20 eye-witnesses to the shooting who can testify that the defendant shot the victim and that it was not in self-defense. Barring jury nullification, the Commonwealth could win a conviction even without the confession.
Even if you are in fact guilty and have no defense, a skilled lawyer may be able to present mitigating factors to the judge and/or prosecutor, which can lead to a more favorable sentence or plea agreement. For example, your lawyer may convince the judge to give you probation or house arrest instead of jail time or he may convince the prosecutor to drop or reduce some of your charges pursuant to a plea agreement.
There are some cases where a defendant is factually guilty, but the police obtained evidence in a manner that violated the defendant’s constitutional rights. If this is the case, the defense attorney can file a motion to have this evidence “suppressed.” If a judge rules that the evidence was obtained in violation of the defendant’s constitutional rights, the judge will “suppress” the evidence, meaning that the evidence cannot be used against the defendant at trial. In certain cases, such as drug cases, this is usually the end of the prosecution’s case and the charges will be withdrawn. Most people do not know whether they have a suppression issue until they talk to a criminal defense attorney.
That being said, it is much easier to defend a case where the only evidence is the complainant’s word. A skilled defense lawyer may be able to rip apart the complainant on cross-examination, pointing out inconsistencies in his or her story or bias and motive for the complainant to falsely accuse the defendant. Without the aid of a good attorney, you could find yourself convicted based solely on the word of your accuser, whereas a skilled lawyer can expose your accuser’s ridiculous story for what it is.
If your girlfriend wants the charges dropped, chances are that the Commonwealth will be willing to reduce the charges or offer you a favorable plea agreement. The Commonwealth will not likely, however, simply drop the charges regardless of what your girlfriend wants. If you are unwilling to accept their offer, the Commonwealth will likely charge ahead with your girlfriend as an uncooperative, hostile witness, which is not the ideal situation for a prosecutor.
You should never talk to the police without first consulting with a defense attorney.
A cop should always try to get the suspect’s side of the story before charging him or her with a crime and the cop who fails to do so should expect to be hammered on cross examination. This is especially true in cases where it is just the complainant’s word against the defendant’s word. However, it is not always in a defendant’s best interests to give a statement to the police. Your attorney can advise you whether it is in your best interests to speak to the police.
If you are factually innocent, the matter might be dropped after you give your side of the story to the police. If your attorney advises you to give a statement, your attorney should be present and you should insist upon recording the interview in some manner, rather than relying upon a written summary of the interview prepared by the police officer.
One danger of giving a statement to the police when you are a criminal suspect is that both you and the police officer will have a tendency to hear what you want to hear. The cop may have already decided that you are guilty and he will focus only on things that confirm his pre-existing opinion, while ignoring facts, which point to your innocence.
Likewise, the cop might tell a suspect “if you give a confession, I’ll put in a good word for you to the DA.” The suspect takes that to mean, “if I give a confession, I will get a lenient sentence or I will get probation,” when the cop never actually said that. All that he said is that he will put in a good word to the DA, but that does not obligate the DA to make you a favorable plea offer and it certainly does not obligate the judge to give you a lenient sentence.
Law enforcement has access to all of your prior convictions anywhere in the United States and they will pull the prior conviction record for every criminal defendant to ascertain his prior record.
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
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.
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.
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.
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.
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.
- 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, and 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.
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.
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 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.
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.
- 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