FREQUENTLY ASKED QUESTIONS
1) WHO SHOULD YOU TALK TO ABOUT YOUR CASE?
Anything you say can and will be used against you. This is true whether you talk to a police officer, a person in a cell with you, a friend or your family. Unless your lawyer and you have expressly decided to communicate with law enforcement or another party, do not offer any statement to anyone or any agency even if you are promised leniency or a reduced sentence. The only one with the authority to reduce the punishment against you is the judge.
2) WHY YOU SHOULDN’T BELIEVE WHAT OTHER INMATES OR CO-DEFENDANTS SAY ABOUT YOUR CASE?
Inmates are not lawyers and some inmates want to use any information they can gain about your case for their own benefit in striking a deal in their own case. So do not tell anything about your case to other inmates. Additionally, the case information other inmates discuss is usually based on rumour and guesses regarding sentences in other matters. Your lawyer has and will communicate to you accurate information regarding your case.
3) WHY SHOULD YOU KEEP YOUR LAWYER INFORMED OF YOUR LOCATION?
Your attorney can only help you if he or she knows where you are. If you are not in custody, make sure your attorney has your present home address, present work address and all necessary phone numbers (work, home and cell). If you change where you live, tell your lawyer right away. If you are in custody, make sure your attorney knows where you are.
4) WHY SHOULD YOU DO WHAT YOUR LAWYER ASKS AND KEEP ALL APPOINTMENTS?
All of our effort and resources are dedicated to providing you with effective and quality representation. However, if you do not follow your lawyer’s requests (for documents and/or other information, to be at meetings when required, to be in court when necessary), your attorney will not be able to effectively represent you. You must help your lawyer help you.
5) SHOULD YOU CONTACT YOUR LAWYER WITH ANY QUESTIONS OR CONCERNS?
Yes, you should call your lawyer with any questions or concerns you have about your case. Feel free to use our toll-free number. If you are in a jail and cannot dial us directly, call us collect. When you call the office be sure to ask for the lawyer who is representing you, or for the paralegal who is working with the lawyer on your case.
If you are in a jail, prison or even a halfway house, your phone calls are probably monitored and recorded so you should not talk about your case or case related matters over the phone. Any comments you make during a phone call may be used against you in any court.
6) ARE COMMUNICATIONS BETWEEN YOU AND YOUR LAWYER PRIVILEGED AND CONFIDENTIAL?
Any and all conversations you have with your lawyer, his or her paralegal and investigator, as well as the staff are privileged and confidential and will not be repeated to anyone. However, if you expressly allow your lawyer discuss your case with family and friends, your lawyer may do so. However, it is not a good idea to discuss your case with individuals who are not part of the case, because they will play a very limited role in case preparation and the development of case strategy. Although your lawyer may discuss your case with the prosecution in an attempt to resolve the matter, confidential information will not be discussed with prosecutors.
7) HOW DO YOU MEET WITH YOUR LAWYER IF YOU ARE IN JAIL?
If you are being held in jail while you are waiting for your court date, your lawyer, investigator or paralegal, will visit with you in jail as often as is necessary to prepare your case and keep you informed. We want to do everything we can to ensure a good outcome in your case. However, in order to efficiently use his or her time, your lawyer, investigator or paralegal, will only visit with you in the jail facility when it is necessary for your case.
8) WHAT IS PROPER COURT BEHAVIOUR?
a. Do not talk while court is in session. If you have any questions, write them down on a note pad that will be provided to you by your lawyer.
b. Avoid showing emotions. Be attentive and respectful during your court proceeding. How you portray yourself may have an effect on the treatment you receive from all parties involved in the resolution of your case. If you disagree with statements made during court proceedings or decisions by the court, do not become visibly angry or agitated.
c. Always stand and speak clearly when addressed by the judge or when giving any statement to the judge.
d. You should dress properly for court. Your lawyer or other staff can tell you how you should dress for court.
e. Never appear in court under the influence of drugs or alcohol and never have any illegal or prohibited items in your possession.
THE FEDERAL CRIMINAL PROCESS
While your case is being resolved, you may go to court several times for hearings. Additionally, you will be asked to read and review materials by your lawyer. The following summarizes the events that may take place during various stages of your case and the events are listed in the usual order they occur in a criminal case in federal court.
1. At this time the judge will advise you of your rights (e.g. to remain silent, to a lawyer and to appointment of a lawyer to represent you if you cannot afford a lawyer, etc.) inform you of what crimes the prosecution alleges you committed, and advise you of the possible penalties.
2. The judge will also consider whether you should be released or detained while your case is pending. If you are released, the judge may set conditions (for example - require you to submit to drug testing, sign or post a bond or, place you on electronic monitoring). In certain circumstances (usually serious drug offenses and crimes of violence), the prosecutor may ask for your temporary detention until a detention (bond) hearing is scheduled. If this is done, you will be held in a custody for approximately 3 to 5 days until the hearing date.
1. If you have not been indicted, the court may conduct a preliminary hearing to determine if there is probable cause for the case to go on. The legal question to be answered at a preliminary hearing is whether the government has described a crime and presented information that you committed a crime. Any defense or evidence you may have to show that you are not guilty is not relevant or helpful at a preliminary hearing and will not be presented to the court. Do not worry about that. The preliminary hearing is not a determination of guilt and the judge does not have to find “beyond a reasonable doubt” that you committed the crime, so there is a strong likelihood the court will find there is probable cause for your case to go forward and not dismiss it at the preliminary hearing. In order for you to be held in jail and for your case to move forward, there has to be a finding of probable cause to believe you committed a crime. If you have been indicted, a grand jury has already determined there is probable cause for the case to move forward and you will not have a preliminary hearing.
Detention (Bond) Hearing:
1. At your detention hearing, the court determines whether you are a flight risk or danger to a person or to the community. If the court determines you can be released, you will likely be released but with some conditions, such as the posting of a bond along with the requirement that you regularly report to the United States Probation office for pretrial supervision.
2. It is helpful to have family, friends and people who can vouch for you attend the detention hearing. If the court determines that you are a flight risk or a danger to a person or the community and there are not ways to ensure your presence in court or protect others, the court will order you held in custody until your trial.
1. At this proceeding you enter a plea of not guilty and are advised of the charges against you. This proceeding is usually very brief. However, it is very important because after this proceeding the prosecutor is required to give you and your lawyer their case information (discovery) and your rights to a speedy trial begin.
Discovery and Investigation:
1. Not long after arraignment, the prosecutor should provide your lawyer with information. This information may be documents, audio tapes, video tapes, photographs and other material.
2. If you are in custody awaiting trial, your lawyer, investigator or paralegal, may bring them to you to review during visits and provide you with copies of certain documents. It can be harmful to your best interests to have certain discovery material in jail so your lawyer may suggest that you not keep some of it in the jail with you while you are awaiting trial.
3. If you are provided with discovery, do not show it to anyone. Others may use this information against you or try to use it to curry favor with the prosecution in their case. Do not discuss your discovery information or your case with anyone else at any time, doing that may be harmful to your interests.
4. Decisions made in your case will be based on the information contained in the discovery, the case information you provide to your lawyer, investigator or paralegal, and any other case information you and your lawyer determine is relevant to the defense of your case. All relevant facts will be thoroughly investigated by the investigator working as part of the team with your lawyer.
1. The court will set a pretrial conference in your case. The sole purpose of this conference is to set the dates and schedule for hearings and trial of your case. You will need to be present at all pretrial conferences.
1. Based upon the facts of your case, your lawyer may file a variety of motions and dates may be set by the judge to hear these motions. You have a right to attend these hearings and you will be required to attend them.
2. Your case will not be helped by filing motions that have no chance of winning or that do not preserve important issues for review by a higher court. Your lawyer will talk about possible motions in your case with you.
1. After consultation with your lawyer, you may elect to have a trial to allow a jury (in some cases a judge) determine if you are “not guilty” or “guilty” of the crime(s) the government alleges you committed. Your lawyer will describe for you in detail the trial process as your trial approaches. Remember these rules of conduct for the court.
a. Always stand when the jury enters.
b. Pay attention, be courteous, and respectful at all times during trial.
c. Write down questions for your lawyer.
d. Avoid showing excessive emotion.
e. Dress appropriately.
f. If you testify:
listen to the questions,
speak clearly during your answers,
do not guess at answers, and
do not argue with the lawyers.
2. If you decide to go to trial, you should determine with your lawyer in advance whether or not you wish to testify. You have an absolute right to choose to take the stand or to choose not to testify. Be aware that in most circumstances in federal court if you testify in your trial and you are convicted the court will impose a greater sentence. You should be sure to talk about this with your lawyer.
Being Found Guilty:
1. In order to be sentenced, you either have to be (a) found guilty by a unanimous jury after a trial (or after a trial by a judge) or (b) found guilty through your plea of guilty. If after consultation with your lawyer, you decide to enter a plea of guilty you will go to court to admit to the charged conduct.
2. Prior to you going to court to enter a plea of guilty, your lawyer will have had several meetings with the prosecutor. As a result, your lawyer and the prosecutor may reach agreements about your case(s) (reduced sentence, reduced fine and/or reduced restitution) because of your decision to enter a guilty plea. This is called a plea agreement or plea bargain. You may accept or reject the plea agreement. However, you must be fully aware and understand that no matter what the prosecutor and your lawyer may agree to, the court always has the final say in deciding what your sentence shall be since the court is not required to follow any agreements reached by your lawyer and the prosecutor.
3. During the plea hearing, the judge will ask you a series of questions to make sure that this is your voluntary decision and that you understand what you are doing. Pay attention during this process to be sure that you understand all questions the judge asks you. If you have any questions or are confused, tell your lawyer right away. This will not upset the judge.
1. If you are found guilty after a jury trial or after a guilty plea, a sentencing hearing will be held approximately 2 to 3 months after the determination of guilt. It is at this hearing that the court will impose its sentence.
2. All sentences are first determined under the advisory Federal Sentencing Guidelines. These are a set of rules and regulations made by Congress and the United States Sentencing Commission which sets out a range of punishment for anyone sentenced in federal court. The judge will use them to determine our Guidelines sentence. You and your lawyer will have the opportunity to bring various other matters to the judge’s attention, if appropriate, to help it determine what the sentence should be.
3. Under the Federal Sentencing Guidelines, points are assigned for various facts in the offense. Your criminal history is also assigned points. Based upon the points assigned for your offense and your criminal history, your advisory Guidelines sentence is determined.
4. For some Federal Drug Offenses, Congress has determined that there are mandatory minimum penalties. In these circumstances, if the Federal Sentencing Guidelines set forth a sentence lower than the Mandatory Minimum, the court must impose the Mandatory Minimum penalty.
5. Prior to sentencing, a United States Probation Officer will meet with you and your lawyer to gather information for the court about your background. The United States Probation Office will then prepare a pre-sentence report and make a recommendation about what your sentence should be based on the Federal Sentencing Guidelines. Your lawyer will have the opportunity to challenge that recommendation (i.e. submit objections to the Probation Officer and submit objections to the judge) if your lawyer believes the Probation Officer’s recommendation is incorrect or if there are other factors about you and your background that should be brought to the judge’s attention.
6. Prior to the sentence, the judge will conduct a sentencing hearing during which your lawyer will be able to formally object to any errors in the probation report and present any other information the judge may find helpful for deciding on the appropriate sentence it should impose.
7. Your sentence will include either a sentence of probation or, if you also receive a prison sentence, a term of supervised release. Supervised release is served after a prison sentence and is similar to probation.
1. If you are found guilty and sentenced, you have fourteen days within which to file a noticeto appeal the sentence imposed or the finding of guilt (i.e. conviction) if you have not waived the right to appeal as part of your plea agreement or plea bargain. If you have waived your right to appeal as part of your plea agreement, then an appeal is only permitted for very limited reasons. If it is proper for you to appeal and you wish to do so but cannot afford a lawyer, the court will appoint the federal defender office to represent you on appeal.
2. If you are interested in filing an appeal, you should immediately after sentencing notify your lawyer of this fact and talk about whether or not your case involves an appeal that is permitted.
Violations of Probation or Supervised Release:
1. If placed on probation or supervised release, you will be assigned a United States Probation Officer who will monitor your progress while under supervision.
2. In the event your probation officer believes you have violated the terms of your probation or supervised release, the probation officer will file a petition with the Court and you will either be summoned to court or arrested.
3. There will then be a hearing at which the judge will decide whether there is probable cause for more action on the petition alleging a violation of the term(s) of your supervised release.
4. If the judge determines there is probable cause, a supervised release revocation hearing will be conducted before the judge who imposed your original sentence. If the court finds no violation, the petition will be dismissed.
5. If the judge who imposed your original sentence finds you violated your probation or supervised release, he/she may continue you on probation or supervised release under the same terms that were originally imposed, modify the conditions of your probation or supervised release, or terminate your probation or supervised release and place you in custody for a period of time.
5. The Federal Sentencing Guidelines which were used when you were first sentenced have a section to determine the sentence to be imposed for a violation of probation or supervised release.