Frequently Asked Questions

What is Due Process?

Through the Fourteenth Amendment to the US Constitution, the government is required to afford its citizenry due process. What this means differs, dependant upon the particular situation. In the administrative fields, such as licensing, due process may mean a notice of some negative action the government intends to take against you, and an opportunity for you to be heard in your defense.

In the broad context of a criminal proceeding, due process requires that the government, which includes prosecutors and the courts, afford a defendant fair dealings and a fair trial on the charges pending against them. For example, this means that throughout the proceedings, rules of criminal procedure must be observed. To ensure the fairness of the proceedings, the court system has its own rules of procedure which govern the actions of each of the participants: police, defense lawyers, prosecutors, judges and juries. Due process requires such things as reasonable notice of proceedings, fair hearings when facing potential negative consequences, and the opportunity to be heard, generally through your attorney.

What is Plea Bargaining?

For better or for worse, often both, plea bargaining is an every day part of our criminal justice system; some would say it is a necessary evil. In a nutshell, a plea bargain is a compromise reached between the prosecution and the defense which must be approved by the court. The gist of the bargain is that in return for each side giving up something, they get something in return, and are spared the time, expense and the risk that would involved if the case went forward to trial. In a plea bargain, the defendant doesn’t generally obtain the outright dismissal they might want, but they don’t risk receiving the harshest punishment permitted and/or getting convicted of all offenses charged either. Conversely, the prosecution might not get the conviction or sentence they would otherwise seek, but a plea bargain assures them that they won’t have to extensively litigate the matter, nor suffer an outright dismissal or acquittal.

Often, the prosecution and the defendant’s attorney can negotiate an agreement that resolves the criminal case. This usually involves the prosecutor agreeing to recommend a specific, more lenient sentence, and then reduce or dismiss some of the charges, in exchange for defendant’s guilty plea to a lesser offense, or to fewer than all offenses charged. Its hard to overstate the importance of having a seasoned criminal defense attorney working for you throughout the plea bargaining process.

What happens at sentencing?

Sentencing occurs if and when a defendant has been convicted of an offense, either by plea bargain or if convicted after trial. It is at sentencing that the Judge presiding over the Court issues an Order by which the defendant will be bound, although it may also be challenged through post-judgment motion or by appeal. A sentence may involve fines, court costs, probation, community service, mandated treatment, restitution (repayment) for financial damages caused to a victim of the offense, and incarceration in local jail or even state prison. Many other negative outcomes may flow from a criminal conviction. A person with a criminal record may have difficulty with employment, insurance, credit or housing. He or she may lose many rights, or become ineligible for certain benefits, professional licenses, or firearms. A criminal conviction may result in more indirect effects like social stigma or estrangement from family, friends or professional colleagues. Because of the potentially devastating consequences of a conviction, it is in the best interest of anyone facing charges to have a strong, experienced attorney at his or her side to help protect legal and constitutional rights every step of the way.

Is unsuccessfully attempting to commit a crime an offense?

The answer is: maybe. It depends on the circumstances and on the law of the jurisdiction. A person who intends to commit a particular crime and takes a substantial step toward perpetrating it, but fails to actually complete it may be guilty of the separate crime of attempt. Generally, an act that is extremely remote from the completed crime, such as early preparation, will not be significant enough to constitute criminal attempt. Merely thinking about committing a crime never makes one guilty of a crime.

What is the role of the grand jury?

The traditional purpose of the grand jury is to serve as a buffer between a possibly overzealous prosecutor and the accused. In a practice originating in England, the Constitutions of the United States and New York State require that, before an individual can be made to stand trial for a serious crime (felony), prosecutors must first convene a grand jury and obtain an indictment. Grand juries are made up of local residents that review evidence and hear testimony as presented by the prosecutor.

In most instances, a defendant has an absolute right to testify before the grand jury hearing a case against them, although that testimony can be, and often is, later used as evidence against the defendant. A defendant, or target of the grand jury may also have the right to request the grand jury to inspect certain evidence or hear the testimony of particular witnesses.

The grand jury makes no determination about guilt or innocence; a grand jury’s decision to indict someone is merely its determination that they there exists sufficient evidence to formally charged the individual and hold them for trial. The requirements of indictment and the grand jury process are designed to prevent someone from having to stand trial for a serious crime unless some minimal amount of evidence has been reviewed and affirmatively voted upon by the grand jury.