Criminal Process

FEDERAL CRIMINAL PROCESS GUIDE

I. INTRODUCTION

II. IMPORTANT INITIAL CONSIDERATIONS

A. Constitutional Rights
B. Appointment of Counsel
C. The Office of the Federal Public Defender
D. Confidentiality
E. Contact With Law Enforcement

III. PROGRESS OF A CRIMINAL CASE: INITIAL STAGES

A. Arrest and Complaint
B. Pretrial Services Interview
C. Qualifying for Appointment of a Lawyer
D. First Appearance
E. Detention Hearing
F. Preliminary Hearing

IV. FORMAL CHARGES

A. Indictment and Information
B. Arraignment
C. Getting Ready
     1. General Considerations
     2. Client and Attorney Responsibilities
     3. Investigating The Case
     4. Discovery
     5. Motions
D. Trial or Guilty Plea?

V. PLEA AGREEMENT AND GUILTY PLEA

A. Plea Agreement
B. Guilty Plea

VI. TRIAL

VII. SENTENCING

A. The Presentence Report and Sentencing Hearing
B. Types of Sentences

VIII. APPEAL

IX. EXPUNGEMENT

X. CORRESPONDENCE

A. In General
B. Federal Defender Office

 

FEDERAL CRIMINAL PROCESS GUIDE

I. INTRODUCTION

This portion of the website is intended to provide information to those seeking an elementary description of the federal criminal process as it operates in the Northern District of Ohio, and to any person arrested, accused or otherwise exposed to prosecution for a federal criminal offense in this District. It provides a basic overview of some of the rights available to an accused person during the various stages of the process, and a description of related matters. It is intended to provide information of a general nature, not advice as to a particular case, and should not be relied upon as a substitute for advice from a qualified lawyer.

If you need more information about these matters, you should contact the Federal Public Defender Office or a lawyer familiar with federal criminal defense litigation. Defender Office attorneys are available to provide general information about the federal criminal justice process and information that would assist in identifying and understanding constitutional rights and the importance of obtaining the guidance of a lawyer. They will generally not provide information or advice as to the specific aspects of an individual case unless the Office has already been appointed to represent the client in that case.

This guide was written by lawyers, and lawyers sometimes tend to forget that they are using language in ways that are not always understandable to the general public. We have tried to avoid the unnecessary use of technical terms, but we note here that some words are used interchangeably. For example:

For purposes of consistency we have generally referred to the defense attorney and judge as female and the prosecutor and defendant as male.

Back to Top

    • lawyer = attorney, counsel, defense attorney
      prosecutor = government, AUSA (Assistant United States Attorney)
      judge = court
      accused person = defendant, client, arrestee
      conviction = finding of guilty
      acquittal = finding of not guilty
      representation = providing legal assistance.

II. IMPORTANT INITIAL CONSIDERATIONS

A. Constitutional Rights

Individual rights are protected by provisions of the United States Constitution, some of which are collectively known as the Bill of Rights, and by provisions of the Constitution of the State of Ohio. The federal and state court systems established under these constitutions are separate and distinct systems with some similarities and many differences. They should not be confused with one another.

Rights which are guaranteed by the United States Constitution can be asserted whether a person is represented by a lawyer or not. They include freedom of speech and peaceable assembly, the right to keep and bear arms, to be secure against unreasonable searches and seizures, to be free from compelled self-incrimination, to due process of law, to trial by an impartial jury, to be confronted by adverse witnesses, to have compulsory process for obtaining witnesses, to the assistance of counsel, and others.

It is sometimes difficult to understand exactly what each of these rights means and how significant each one might be in a particular case, so it is important to have the assistance of an experienced and qualified lawyer to explain them and to insure that they are protected. Accordingly, it has been said that of all of the rights a defendant has in a criminal case, the most important is his right to Assistance of Counsel; because it is through that right that he is able to understand and assert the others. Federal Public Defender Offices have been established to insure protection of the constitutionally guaranteed right to the Assistance of Counsel in federal cases, and through counsel, to insure the protection of other individual rights.

The law provides that, under most circumstances, a person facing criminal charges in federal court is entitled to the assistance of an attorney. If that person cannot afford to hire an attorney, the court has authority to appoint an attorney. The decision to appoint an attorney is usually made by a United States Magistrate Judge or a District Court Judge. Legal advice and representation provided by appointed counsel is limited to the matter for which the attorney was appointed, and to related matters.

C. The Office of the Federal Public Defender

The Office of the Federal Public Defender provides legal assistance to people who are facing criminal charges (or potential charges) in federal court, and who cannot to afford to hire a lawyer to represent them. A person charged or likely to be charged with, or questioned about, a federal criminal offense, and concerned about protecting his or her rights, but who cannot afford to hire a lawyer, may contact the Federal Defender Office. This can be done by phone or in person, and a lawyer from the Office will provide assistance. The Office cannot appoint itself to provide representation, but can provide advice regarding rights, and sometimes assist in seeking judicial appointment of a lawyer. The expenses of the Defender Office, as well as compensation paid to other lawyers appointed in federal cases, are paid by the federal government. The attorney's loyalty, however, is to the client, and to the client alone. The United States Supreme Court has unanimously said, regarding an appointed lawyer, that: "His principal responsibility is to serve the undivided interests of his client."

D. Confidentiality

A client should not talk to anyone regarding anything about his criminal case without first discussing the matter with a lawyer. If a person can not afford to hire a lawyer, he can request appointment of a lawyer and remain silent until a lawyer has been appointed and he has had the opportunity to talk to the lawyer in person.

The client may discuss anything concerning the case with the attorney because these matters are confidential, or considered "privileged" information, under the law. This privilege, however, extends only to private discussions between the attorney or attorney's staff and the client, and the discussions must be related to the client's case. Except for other privileges recognized by law, such as those involving a physician, clergyman or spouse, anything the client tells his family, friends or others, such as cellmates, is not privileged, and the court may be able to compel those people to testify about what was said by the client, whether those people want to testify or not.

The attorney-client privilege is extremely important in the practice of criminal law, and is jealously guarded by criminal defense attorneys. It allows the client to be completely honest and candid in revealing information and in discussing the circumstances of the case with his lawyer. This is necessary because incorrect information provided by the client, whether intentionally or unintentionally, increases the chance that the lawyer will make bad decisions on behalf of the client.

E. Contact With Law Enforcement

Whether it is before or after arrest, and whether a person has hired a lawyer or not, it is important to the protection of constitutional rights that he should consult with a lawyer before talking to anyone about the case, especially before talking to law enforcement officers. Law enforcement officers should advise an arrested person before any custodial interrogation takes place that he has the right to consult with a lawyer at no expense to himself, even if he cannot afford to hire a lawyer; and that he has the right to talk with a lawyer before answering any questions. The officers are required to advise the arrested person of his right to a lawyer so that he can talk to one before being questioned; and so that he can wait for the opportunity to see a lawyer in person before answering questions, if that is his preference. A voluntary confession which is not in writing or signed by the accused can still be used against him at trial.

Law enforcement agents may offer to help an arrested person avoid prosecution, or avoid or reduce a prison sentence, in exchange for information or assistance they think he can provide as to the activities of others. It should be kept in mind, however, that the officers generally do not have authority to guarantee that a case will be resolved in a certain manner, in exchange for cooperation; and that if an arrested person talks, there may later be conflicting testimony as to exactly what statements were made, and whether or not he confessed, requiring a judge or jury to choose between believing the accused person or believing the agent.

This is not to say that everyone should always refuse to make a statement; but that an arrested or accused person should get the advice of an experienced lawyer before deciding whether or not he should do so; and before deciding what, if anything, should be said, under the particular circumstances of the case. If a person talks to a law enforcement officer or prosecutor before obtaining counsel, and confesses to involvement in criminal activity, a lawyer thereafter hired or appointed may be very limited in the assistance that he or she can provide. This is true regardless of any promises or threats that law enforcement officers may have made earlier, and also true even if the confession was not put into writing or signed.

An accused person should also consider hiring a lawyer or seeking appointment of counsel before talking about the case to friends, family members, or inmates. If a person is charged with a criminal offense because prosecution authorities have concluded that he did commit a crime, statements he makes to anyone, even to explain his innocence, may be misunderstood, inaccurately repeated or intentionally falsified, and later used against the speaker; particularly by individuals who have something to gain by cooperating with the prosecution.

Back to Top

    B. Appointment of Counsel Each Federal Defender Office lawyer specializes in defending people charged with federal crimes. He or she will defend the client to the fullest extent allowed by law. The lawyer will be able to provide answers to questions and to explain how the law applies to the case. The attorney-client privilege exists between the client, the attorney and the attorney's staff only. This is why the attorney may want to exclude others from private discussions she has with the client. The privilege, or right to confidentiality, belongs to the client. For this reason the attorney will usually not discuss privileged information with the client's family or friends, without the client's permission. The client alone would have to give such permission to the attorney after discussing the matter with her.

III. PROGRESS OF A CRIMINAL CASE: INITIAL STAGES

Though there are exceptions and variations in individual cases, the progression of a criminal case through the federal court system will generally take place as described below.

A. Arrest and Complaint

Federal charges are usually begun by way of an arrest, complaint or indictment. An arrest may be made without an arrest warrant, based upon probable cause; or with a warrant, based upon a complaint.

When a complaint is submitted to a judge by law-enforcement officials seeking an arrest warrant, the allegation of probable cause to arrest will be set forth in an affidavit (sworn statement) attached to the complaint. The complaint and affidavit will be presented to a judicial officer, who, upon deciding that the affidavit sufficiently describes probable cause to believe that the charged individual committed a federal offense, will issue the requested arrest warrant. If the allegation is insufficient, the warrant should not issue. Where arrest has been made without a warrant, a complaint and affidavit will be prepared for presentation to the magistrate at the defendant's first court appearance.

The government will sometimes bypass the complaint and arrest stage of this process entirely, by taking its evidence directly to a grand jury, and obtaining an indictment (a formal charging document). Thereafter, the government will often seek the issuance of a judicial summons, in lieu of arrest, requiring that the indicted defendant appear in court at a designated time and place.

B. Pretrial Services Interview

Either by phone or in person (if arrested) an individual charged with a federal crime may be contacted by an officer of the federal Pretrial Services Agency. This may happen before or after the defendant (the accused person) has had a chance to speak to a lawyer. The officer's job is to obtain information, both from the defendant and from other sources, about the defendant's background; so that the information can be presented to a district judge or magistrate judge to assist in resolving questions related to pretrial detention, release on bond and pretrial supervision. The officer will make a bond or detention recommendation to the judge.

A person charged with an offense is not required to speak with the pretrial services officer, particularly if he has not already seen a lawyer. If he chooses to speak, he should be complete and truthful in his answers, but he should not be asked about or say anything which is directly or indirectly related to the offense as to which he has been arrested or charged. Information given to the pretrial services officer may later be used in determining a sentence, in the event of a conviction. A person who chooses to speak to the pretrial services officer may wish to say nothing about prior criminal activity or prior convictions, for the following reasons: (1) because criminal history is a very significant sentencing factor; (2) because the officer will have computer access to a criminal records data base; and (3) because a mistake on the defendant's part in providing information could be construed as an attempt to provide false information. Under provisions of the federal sentencing guidelines, providing false information, even by mistake, could result in exposing the defendant to a more severe sentence than would otherwise apply, if he is eventually convicted. A person may choose to say nothing at all to the pretrial services officer until after speaking to a lawyer, particularly if he has reason to believe that the prosecutor will recommend that he be detained without any bond until trial.

If a person cannot afford to hire a lawyer prior to the first appearance in court, the court may sometimes provide him with a financial affidavit form to be completed as an aid in appointing counsel. This form is a sworn statement. A person should be accurate in the information that is put on the affidavit. Sometimes, instead of the form, the magistrate will question a person directly about his financial circumstances. The magistrate will then decide if the accused person qualifies for representation by a lawyer from the Federal Public Defender Office, or other court-appointed counsel. If he qualifies for appointment of counsel, and it is determined that the Federal Defender's Office cannot represent him, the magistrate will appoint a lawyer in private practice who has been determined to be qualified to represent people in federal criminal matters. The court-appointed attorney's fees will be paid by the federal government; but the attorney's principal responsibility is to serve the interests of the client.

After an arrest, the officer making the arrest is required by a rule of criminal procedure to take the arrested person before the nearest available magistrate "without unnecessary delay." The magistrate will inform him of the charges, and, if necessary, the right to counsel, and the right to request the appointment of an attorney. If the person requests a lawyer and qualifies, the magistrate will appoint a lawyer to represent him. The magistrate will also inform the arrested person of certain rights concerning the making of any statements, and the right to a preliminary hearing or detention hearing, if appropriate. The magistrate will address the question of release from custody on bond. A federal statute provides that a person should not be kept in custody solely because of lack of money, but may be kept in custody upon the magistrate's decision, after a detention hearing, that he is a risk of flight or danger to the community. At his first appearance before the magistrate, an accused person is not required to answer questions about the charges which have been brought against him.

At the first appearance, the prosecutor may request that the defendant be held without bail until trial. If he does, the defendant is entitled to a detention hearing, to determine whether or not he should be held without bail. This hearing is usually held within three days of the first federal court appearance. The prosecution or the defense may request a later hearing date under certain circumstances. Between the time of the prosecutor's detention request and the time of the detention hearing, the defendant will be held in custody.

At the hearing the magistrate will determine whether, under the facts of the case, and considering prior criminal convictions, if any, the defendant will be released prior to trial, or detained in a jail until trial. If released, the defendant will be under supervision of the Pretrial Services Agency, and may be required to provide urine samples for drug testing, surrender a passport, and comply with restrictions on travel or residence. The court may set many other conditions of release. If a person is charged with a drug trafficking crime or a crime of violence and has been previously convicted of a similar offense, the law may impose a presumption that detention is appropriate. This means that the defendant and his lawyer have the burden of convincing the judge to release him pending trial. Many defendants are detained while awaiting trial due to this presumption. These matters should be discussed with the lawyer to determine how best to proceed at the detention hearing. If the magistrate orders pretrial detention, the defendant will usually be housed at a county jail, for a number of months, pending trial. Technically, he remains in the custody of the U.S. Marshal.

A person is entitled to a preliminary hearing within ten days of the initial federal court appearance if he is in custody (or not later than twenty days if not in custody), unless the person extends the hearing date, waives the hearing, or is indicted by a grand jury. The magistrate may also find that extraordinary circumstances exist, and that further delay is necessary in the interest of justice. Frequently, the preliminary hearing and the detention hearing are combined, and held at the same time.

A preliminary hearing is a court appearance at which evidence is presented. The hearing allows a judicial officer to consider the evidence and determine whether or not the case should be "bound over" to a grand jury for return of a federal charge, called an indictment. The prosecutor is required to present evidence at a preliminary hearing to convince a judge that there is "probable cause" to believe that the defendant committed the offense charged. The defendant is not required to testify at the preliminary hearing, or present any evidence. If the magistrate determines at a hearing that probable cause has been shown, the case will be "bound over" to a federal grand jury for indictment. Whether or not a preliminary hearing would be useful is a matter the lawyer will discuss with the defendant.

Generally, any public statements made throughout these initial stages of the criminal process may be used against the person who made them. The arrested person should obtain a lawyer as early in the process as possible, so that he may become fully and properly advised about what, if anything, he should say, and about the decisions he must make.

Back to Top

    C. Qualifying for Appointment of a Lawyer D. First Appearance E. Detention Hearing F. Preliminary Hearing

IV. FORMAL CHARGES

A. Indictment and Information

At some point in the process, sometimes before arrest but usually within three or four weeks of arrest, the prosecutor will present evidence to a grand jury. Neither the defendant nor his lawyer will usually be present. If the grand jury decides that there is enough evidence against the accused to justify charging him with a crime, then the grand jury will issue a formal charging document, called an indictment, stating the exact charge(s).

In some cases, it is appropriate to waive (that is, give up) the right to indictment and permit the government to file an "information". An information is also a charging document. It has the same effect as an indictment, but charges are brought by way of information only if the accused consents. The filing of an information bypasses the grand jury process. If waiver of indictment is an option, the lawyer will discuss it with the defendant.

B. Arraignment
After return of an indictment, the accused will be scheduled for an arraignment before a District Court Judge or a U.S. Magistrate Judge. It is often the case that counsel is appointed at the time of arraignment. At the arraignment, the charges are read, or the accused may waive the formal reading, and the accused will be required to enter a plea to the charges. A plea of "not guilty" is usually entered at arraignment so as to give the defense attorney time to investigate the case and research applicable law, and to obtain discoverable materials; that is, certain case-related documents and information required to be disclosed by the prosecutor. Evidence will rarely be taken at the arraignment, and it is usually a brief proceeding. At the arraignment or shortly thereafter, the court (judge) will commonly set dates for discoverable evidence to be disclosed and for motions to be filed, and set a date for trial.

C. Getting Ready

1. General Considerations

From this point on, the defense lawyer will be gathering the facts and considering the law that applies to the case. This is necessary in order to advise the client of the strength of the prosecutor's case, defenses he may have, the possible sentence he may face, and whether the lawyer feels that the client's interests are better served by a trial or by a plea of guilty to one or more of the charges. Each case is different. Complicated cases take more time to investigate, evaluate, and prepare for trial than do simple cases. Complexity of defense issues and necessary preparation time are not necessarily related, however, to the number of charges in the indictment, or to sentence exposure, or to the amount of time expected to be needed for the prosecution to present its evidence at trial. Simple charges can generate a complex defense, or vice versa. The defense lawyer will try to prepare the case as quickly as possible, but complete investigation may take several weeks or, in some cases, even months. Time spent in proper preparation at this stage of the proceedings, even if the client is in pretrial confinement, is unavoidable and worthwhile to the defendant, because proper preparation may result in a much more favorable resolution of the charges.

2. Client and Attorney Responsibilities

The attorney can best advise the client of options at various stages of the criminal justice process only after the case has been thoroughly investigated and researched, and after determining what level of punishment applies in the event of conviction. The attorney will then assist the client in making the final decisions on matters that involve constitutional rights. Generally, the final decisions as to at least three matters will be the client's decisions to make: (1) whether to plead guilty or go to trial; (2) whether to waive a jury or have one; and (3) whether or not to testify at trial. The lawyer will give advice on these questions based upon her experience and best judgment; but the final decisions will be made by the client. Other decisions, involving obtaining discoverable information, fact investigation, legal research, interviews, motions, pretrial hearings, plea among the defense lawyer's foremost concerns in a criminal case is whether the government can prove what the government has alleged; that is, whether there is proof that the defendant violated a specific criminal statute(s) in the manner charged in the indictment. This involves not only whether or not an act was done, but also the intent involved in its commission, and the admissibility and sufficiency of evidence. Each defendant is entitled as a matter of law to be presumed innocent of the charges which have been brought against him, and the lawyer, by providing vigorous representation, fulfills her responsibilities to both the client and the adversary process. Zealous criminal defense representation is often unpopular, particularly in high profile cases; but it is indispensable to the preservation of a free society.

3. Investigating The Case

Preparation is a key to the proper resolution of a case. The defense lawyer may have the assistance of an investigator, a paralegal, or others in her preparation. It will often be necessary for the investigator or paralegal to meet with the defendant to help prepare the defense. Just like the lawyer, investigators and paralegals are bound by the attorney-client privilege. What a client tells them will be confidential, just as if the client were talking with his lawyer.
The defendant and his family or friends can help in the investigation of the case by providing, to the defense attorney or her staff, the names and addresses of witnesses who can testify and give an accurate explanation of what happened, or who can provide information about the defendant's background. The defendant should not contact witnesses who are expected to be called to testify for him or against him. He should not encourage anyone outside of his lawyer's office to contact witnesses. If he does, he could be accused of witness tampering, a federal crime. Any non-privileged conversations the defendant has with anyone other than his lawyer or the lawyer's staff might be used as evidence against him. Matters involving the case should be kept confidential. The client's family will naturally be concerned about his case, but it is not in his best interest to discuss the facts of the case with others, even family members, except as permitted by the lawyer. The accused should discuss the issue of confidentiality with his lawyer. Other than matters of public record, such as charging papers, motions and notices of hearings, the lawyer will generally not provide information to anyone, even family members, unless the client specifically instructs her to do so after a thorough discussion; but the final decision will be made by the lawyer.

4. Discovery

Federal law provides limited access to the prosecution's evidence. In rare cases, the prosecutor may provide more information than the law requires. In such cases, the defense attorney may be able to review most of the evidence, potential testimony and investigative reports relevant to the case, that are in the prosecutor's file, and to accurately evaluate the case. Usually, however, defense counsel is given only limited access to such information in accordance with a Federal Rule of Criminal Procedure (Rule16), and must rely upon additional defense-generated information to evaluate the strength or weakness of the government's evidence.

The lawyer should work closely with the client to make sure that the client understands what evidence has been provided to the defense from the prosecutor's file. The rules of discovery should be followed by both the prosecution and defense, and the lawyer may discuss these rules with the defendant as his case progresses. The lawyer should also communicate with the prosecutor to try to get an idea of the prosecutor's view and theory of the case. These discussions might be helpful as the case is prepared, and as the client makes important decisions regarding how to proceed.

5. Motions

At different stages in the process, the defense attorney or prosecutor may file motions which may be heard by the court before or during, or sometimes after, trial. Decisions as to what defense motions should be filed will be made by the lawyer, and can most intelligently be made only after the discovery process has been completed. These motions are usually requests that the court do something, such as suppress evidence, order additional disclosure of information by the prosecution, allow separate trials of charges or co-defendants, authorize the issuance of subpoenas, etc. To best represent the client, the lawyer must be involved in all matters related to the case which come before the court. The client should not file his own motions unless he has been given permission by the court to represent himself. If he has ideas about motions that might be filed in the case, he should discuss with his lawyer whether those particular motions would be beneficial to the defense. The final decisions as to what motions should be filed will be made by the lawyer.

D. Trial or Guilty Plea?

The decision to plead guilty or to go to trial is one of the most important decisions the defendant will be required to make, and may depend heavily upon sentencing considerations. The U.S. Constitution guarantees the right to a trial by jury. Any decision to plead guilty, accept a plea agreement, waive trial by jury or otherwise give up any constitutional right is exclusively the defendant's to make. The lawyer will fully advise the defendant as to his available options and give the defendant the benefit of the lawyer's experienced-based judgment as to the advantage or risk of each option, and her recommendation as to what she thinks is in the defendant's best interest. However, the final decision is the defendant's, and his alone, to make.

Under the sentencing guidelines, the severity of the offense and the extent of a person's criminal history will largely dictate the sentence he receives, if convicted by way of guilty plea or trial. In some cases, criminal history may be the key factor. The law not only permits, but often requires, imposing a more severe sentence based upon past criminal convictions, even if the person presently accused has completed serving the full sentences previously imposed for those convictions. Federal law requires severe sentences for persons with certain types of prior convictions, particularly relating to offenses involving drugs or firearms. Accordingly, a person's prior criminal record may play a significant role in deciding whether he should plead guilty or go to trial.

If a defendant is convicted, his sentence may also depend on whether the conviction was the result of a guilty plea or a trial verdict. This is because generally, a person who exercises his constitutional right to trial will, if convicted, be punished more severely under federal sentencing guidelines, than a person with the same prior record who is charged with the same offense(s), but who pleads guilty.

A guilty plea to a charge in federal court does not automatically prohibit the state prosecutor from charging a person with the same offense, and a state conviction will not automatically bar a federal charge for the same offense. Usually, however, a person is not charged in both court systems with the same offense, or based upon the same activity.

Back to Top

V. PLEA AGREEMENT AND GUILTY PLEA

A. Plea Agreement

Generally, a plea agreement is a joint recommendation by the prosecution and defense which advises the judge that they believe the case should be disposed of in the manner outlined in the agreement. The agreement is made a matter of record at the time of the guilty plea. It might be a "B" Agreement (Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure), which is only a sentence recommendation that the judge is free to later (at sentencing) accept or reject; or a "C" agreement, which allows withdrawal of the guilty plea if the recommended sentence is rejected by the judge.

The Plea Agreement might be oral, but is usually written; and it might address a number of different considerations, such as (although not limited to): waiver of rights, maximum or minimum sentences, sentencing guideline calculations, a factual basis for the plea, dismissal of counts, promise of no further prosecution, satisfaction with counsel, etc. The language of the agreement is negotiated by the defense lawyer and the prosecutor, and the defendant should talk to no one except his lawyer about the negotiation of a plea agreement. The plea agreement should be expressed in language that the defendant can understand, and if he has questions about its terms or provisions, he should request and receive explanations from his lawyer, that are understandable to him, before signing it. Most federal cases are resolved by way of a plea agreement and a guilty plea rather than trial, but in many cases the accused will be better off pleading guilty without a plea agreement. No one, however, can force the accused person to sign a plea agreement or to plead guilty.

B. Guilty Plea

If the defendant decides to dispose of his case by way of a guilty plea, that will be done in open court before a District Court Judge or Magistrate Judge in accordance with a Federal Rule of Criminal Procedure (Rule 11). The defendant will be required to acknowledge at least four things on the record: (1) that he understands and is waiving certain constitutional rights including rights to jury trial, confrontation, and silence; (2) that he understands the maximum possible penalties which can be imposed by the judge; (3) that the plea is knowingly, intelligently and voluntarily made -- i.e., not the product of coercion, threats or promises; and (4) that there is a basis in fact for the plea -- i.e., he will be required to admit what it was that he did, in violation of law. After a guilty plea is entered it cannot generally be withdrawn except for good cause and with permission of the court, unless the plea agreement provides otherwise. After the guilty plea has been accepted, the judge will usually refer the case to the Federal Probation Department for the preparation of a Presentence Report ( a report describing the offense, the defendant's personal background, sentencing guideline calculations, etc.).

Back to Top

VI. TRIAL

Should the defendant elect, after advice from his lawyer, to go to trial, the law provides time limits within which the trial should begin. Actually, however, there are many things that can change or extend these limits, and sometimes the accused can be forced to trial in less than thirty days, or be required to wait more than ninety days. Litigation in a criminal case involves strategic decisions including whether, how and when issues should be presented, and tactical decisions including how to proceed during trial. The attorney should keep the client informed of the reasons for the decisions being made.

A criminal case will be tried to a jury of twelve people, unless jury trial is waived, and usually proceeds as follows:

First, the prospective jurors are selected and sworn. Then each side is given the opportunity to make an opening statement to describe what the case is about and what they expect the evidence to show. After the statements, the prosecutor (Assistant U.S. Attorney) presents his witnesses and evidence. The defendant has the right to have his attorney cross-examine every witness presented against him.
The prosecution has the burden of proving guilt beyond a reasonable doubt. That burden is different and a higher level of proof than at a preliminary hearing or before a grand jury. The accused is never required, as a matter of law, to disprove the charges, or to testify.

Unless the court dismisses the charges at the end of the presentation of the prosecution's case, the defense will have the opportunity to present evidence and witnesses. The decision as to which witnesses to call, if any, will be made by the attorney, after consultation with the client, and each witness may be cross-examined by the prosecutor. The defendant must decide whether or not to testify. His lawyer will give him advice and a recommendation on this matter. The final decision as to whether he will testify is his alone. After the defense is finished there may be rebuttal evidence presented by the government, and surrebuttal by the defense, at the discretion of the court.

After all evidence presentations have concluded, each side has an opportunity to argue the case to the jury. The judge will then read the instructions of law to the jury, if this was not done before argument. The instructions describe the law that applies to the case. The jury will leave the courtroom and go to a jury deliberation room to discuss and vote upon the case until they have reached a unanimous verdict. If the jury cannot agree on a unanimous verdict, then a mistrial occurs, and the accused may have to prepare for a new trial at a later date with a different jury.

If the jury acquits on all charges, the case is over. An "acquittal" is the same as a finding of "not guilty." The jury may also convict on some or all charges. A "conviction" is a finding of guilt.

No two trials are alike, and no two lawyers would try the same case in exactly the same way.

Back to Top

VII. SENTENCING

A. The Presentence Report and Sentencing Hearing

The court will schedule a sentencing hearing if the defendant has been found guilty by way of guilty plea or trial, and will usually order that a Presentence Investigation Report (PSR) be prepared by the U.S. Probation Office. The probation officer will ask the defendant to fill out forms providing personal background and financial information, and will ask him to submit to an interview. The probation officer will also ask the defendant to sign authorizations for release of confidential information such as medical or drug treatment records, school records, etc. It is important that the attorney provide guidance to the client as to what information he should or should not provide on the forms, and that the attorney be present during the interview. Sentencing guidelines, which are law, will be used to determine the sentence. The attorney will get a copy of the presentence report, and will have an opportunity to review it with the defendant for accuracy, and make objections, if necessary, before sentencing.

The defendant may want to speak to the judge at the sentencing hearing. If so, he should discuss that with his attorney, well before the sentencing hearing. He should not wait until the day of sentencing to make this decision. The judge will also give the attorney and, perhaps, other interested persons, an opportunity to speak on behalf of the defendant. It is possible that victims of the offense will also appear to speak. Friends, colleagues, or family members of the defendant may also choose to write a letter to the sentencing judge on behalf of the defendant. Any such letters are usually sent directly to the defense attorney. The attorney or defense investigator should know, well in advance of sentencing, the names and addresses of the people the defendant believes will want to write or speak on his behalf at sentencing, and the substance of their testimony. The defendant may seriously jeopardize his case if accurate statements presented by him or his witnesses appear to be untrue or in conflict with the presentence report, and if the discrepancy cannot be satisfactorily resolved. As always, it is important that he provide reliable information to his lawyer.

B. Types of Sentences

In federal court, most people found guilty receive some form of confinement or imprisonment as part of their sentence. While probation is an option in some cases, probation alone is rare. In many cases probation is not an option the judge can consider. A sentence of incarceration will usually result in confinement in a federal prison, which is controlled by the United States Bureau of Prisons (B.O.P.). The defendant could be placed in any institution in the country, but the B.O.P. will usually make an effort to place most people as close to their home as possible. Many factors are involved in assigning the place of confinement. Such factors include the nature of the offense of conviction, prior criminal record, the length of sentence and inmate population numbers. The Federal Defender's Office has some limited materials about the B.O.P. which the lawyer can provide if the case reaches that stage. Parole has been abolished in the federal system. Sentence reductions for good conduct in prison are limited. If sentenced to prison in a federal case, a person can generally expect to serve at least 85% of the sentence imposed.

If a convicted person is given a sentence of imprisonment, as most are, he should be prepared to begin serving it immediately. The judge has discretion as to whether or not the defendant will be given an opportunity to go home to get his affairs in order and to "self-surrender" directly to the designated place of confinement. If the judge prohibits self-surrender, the defendant will be turned over to the custody of the U.S. Marshal immediately after sentencing. The defendant should not wear any jewelry, watches, or other items of value to the sentencing hearing. He should make arrangements for someone to take care of his personal and financial matters before he is taken into custody. The Federal Defender's Office cannot hold any property for a client.

As part of a sentence, a person may be put on probation for a certain time. Probation is a privilege - not a right. Even if a person is a first time offender, he will not automatically receive probation.

Sometimes, the court will also impose a fine. The amount of the fine is usually set in the sentencing guidelines or under other laws. The attorney can advise the client as to whether he will probably be required to pay a fine. Where appropriate, restitution will also be ordered.

Supervised release is also generally imposed when a person is given a prison sentence. This is similar to parole or probation. When released from prison, the person released will be under the court's supervision, usually for at least two years, reporting to a probation officer. If he violates the conditions of supervised release, he can be sentenced to an additional prison term, to be followed by more supervised release. He also may lose all credit for "street time" earned while on supervised release.

Back to Top

VIII. APPEAL

If convicted by way of a trial, a person has the right to appeal his case. Appellate rights may be more limited if he has entered a guilty plea. A notice of appeal must be filed within ten days after judgment (the sentencing order) is entered, or one may lose that right. An appeal is an opportunity to tell the appellate court (the U.S. Court of Appeals for the Sixth Circuit) how the trial judge or prosecutor made mistakes or did not follow the law, or what rights were denied, or how the trial or sentence was otherwise flawed; and why the trial errors were not harmless, or why the conviction(s) should be reversed, or a different sentence imposed. An appeal of a sentence may not be taken just because the defendant is generally unhappy with it. There must have been some identifiable error committed before a sentencing appeal will be successful.

Typically, an appeal will take nine to eighteen months to be decided. While the case is on appeal, it is unlikely that the defendant will be released. He does not have an automatic right to bail while appealing.

The ten-day time period allowed for filing a notice of appeal is critical. A person should inform his attorney immediately after sentencing if he wishes to appeal.

Back to Top

IX. EXPUNGEMENT

Expungement refers to a process by which a previous record of criminal activity or record as to a specific conviction(s) is erased, destroyed or obliterated. Generally, federal law does not provide for expungement of a criminal conviction as a matter of statutory right. There is some authority that courts retain the equitable power to order an expungement, but only in extreme circumstances, such 28 as with respect to an illegal conviction, a conviction under a statute later deemed unconstitutional or a conviction that was obtained by way of governmental misconduct.

Back to Top

X. CORRESPONDENCE

A. In General

A defendant should be careful about writing letters relating to his case, whether before or after trial. He should not write or talk about the facts of the case to anyone other than his lawyer. If he has any questions or suggestions about his case, he should contact his lawyer. Mail sent from a correctional institution might be censored. It is wise to write on the envelope: "CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGE," and include a return address which indicates the dorm or location where the writer is residing in the B.O.P. facility or jail. Phone conversations made or received by a person while in a correctional facility may be monitored, even if a person is speaking with his lawyer.

B. Federal Defender Office

Mail to the Federal Public Defender's Office should be addressed as follows:

Name of Attorney
Federal Public Defender's Office
1660 West Second Street - Suite 750
Cleveland, OH 44113

- or -

Name of Attorney
Federal Public Defender's Office
Two South Main Street - Suite B3-56
Akron, OH 44308

-or-

Name of Attorney
Federal Public Defender's Office
617 Adams Street
Toledo, OH 43604
 

The Federal Defender's Office handles thousands of calls each year. A caller may expect some difficulties in reaching a lawyer by telephone. The lawyer will make every effort to take a client's call if available when he calls. The lawyer also has other clients, and must attend to frequent court appearances, witness interviews, and other legal matters away from the office. If the lawyer is unavailable, the Defender Office will try to put the caller in touch with a paralegal, who may be able to answer questions, or a secretary who will pass the information or questions on to the appropriate lawyer.

A person in a local jail who has a "free phone" period, should try to call during that period. Otherwise, collect calls may be the only option. If the Defender Office lawyer is not available when a person calls collect, the secretary will usually not accept the call. By not accepting a call, the office is only telling the caller that the requested lawyer is not available. The Defender Office can only accept station-to-station calls, not person-to-person collect calls; and cannot arrange third party calls. Telephone calls from the jail to friends and family are often monitored. No one should discuss the facts of his case over the telephone, except with his lawyer, but it is better to wait until the lawyer can be seen in person, if possible.

The general phone number for each office of the Federal Public Defender is:

Cleveland Office: (216) 522-4856
Akron Office: (330) 375-5739
Toledo Office: (419) 259-7370
Youngstown: (330) 746-6399 (by appointment only)
Back to Top