Criminal Law

FAQ

1Q: Wouldn't longer sentences mean less overall crime?
A: Sentence length may or may not correlate with a decrease in crime. Criminal punishment has four basic goals: rehabilitate the offender; restrain the offender from committing further crimes; exact revenge against the offender; and deterring the offender and the general public from criminal behavior. It is unclear if longer sentences actually convince a particular offender not to commit another crime.

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.

2Q: Is there a way to punish a criminal before he actually commits the crime he is planning?
A: In some circumstances a “crime” can be punished before it occurs. Many jurisdictions have either a general “attempt” crime or individual statutes that make attempted murder or attempted robbery, or the like, a crime. The purpose of these statutes is to punish an individual who has shown himself or herself to be dangerously inclined to commit a crime without waiting until the criminal act is actually completed. In order to convict a person for an attempted crime, the government must prove beyond a reasonable doubt that the person had the intent to commit an act or bring about certain consequences that would amount to a crime, and that he or she took some step beyond mere preparation toward that goal.

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.

3Q: Are all illegal drugs treated equally when it comes to punishing drug dealers?
A: No, the punishment for drug crimes depends not only on the criminal conduct of the offender but also on the classification of the drug. Federal sentencing guidelines begin with forty-three base offense levels and add or subtract levels depending on certain specified criteria. The higher the offense level, the harsher the sentence.

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.

4Q: Can a person be guilty of drunk driving if he only had one drink?
A: The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol. To find a person guilty under the first definition, a jury must be convinced beyond a reasonable doubt that the person’s blood alcohol content (BAC) exceeded a certain amount. In most states the legal limit is .08 (or 8 percent). Therefore, if it is proven that the person’s BAC at the time of the incident was .08 or greater, he or she can be convicted of drunk driving, regardless of how much alcohol was actually consumed.

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.

5Q: What is the role of the federal government in criminal law?
A: Crime has long been considered the concern of state government. States are authorized to protect their citizens from criminal activity by prosecuting criminals. States are also authorized to determine what constitutes a crime statutorily (through the legislature) and through common law. The federal government, on the other hand, has limited jurisdiction and must link any crimes it prosecutes to its powers under the Constitution. The most commonly used powers to support federal criminal legislation are the commerce power, the taxing power, and the postal power. While Congress has used these powers all along to define crimes, there has been an explosion of federally created crimes in the last half of the 20th century. Most of the laws controlling white-collar crime, like the RICO Act and the Victims and Witnesses Protection Act have been passed since 1950.

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.

6Q: Are grand jury proceedings secret?
A: Most courts have rules that prohibit disclosure of grand jury proceedings. The rules typically apply to the government attorneys, the grand jury members, and the court personnel. Violators of the rules can be held in contempt of court if a case against them is proven. However, proving that the leaked information came out of the grand jury proceeding and identifying exactly who made the prohibited disclosure is difficult in most cases.

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.

7Q: Are there special crimes to control children's behavior?
A: While there is a special court system to handle juvenile crime, there is usually not a special juvenile criminal code. Adult criminal codes are applied in the juvenile system, but the children are not generally accused of crimes. Instead, they are accused of committing delinquent acts. Sentences are designed to educate and rehabilitate children, rather than punish them. Children cannot be locked up in adult jails except for very limited periods of time. A child held in an adult jail must be out of sight and sound contact with the adult inmates.

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.

8Q: What is the difference between probation and parole?
A: Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.

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.

9Q: How does a district attorney decide which criminals to charge?
A: A district attorney or prosecutor has the discretion to decide which crimes should be charged. In a typical case, the police investigate a crime and send a report to the prosecutor. The prosecutor then must decide whether to bring criminal charges against the subject of the investigation. First, the prosecutor analyzes the case to determine if it is legally sound. The case must not have any obvious defects that will get it thrown out of court, such as violation of the defendant’s constitutional rights or destruction of evidence crucial to the defense. Next, the prosecutor decides if there is adequate and reliable evidence of the person’s guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable. If offering a plea, such as an agreement by the defendant to undergo drug treatment in return for a suspended sentence, is appropriate, the prosecutor may prefer to dispose of the case in this manner. Additional factors which may influence the prosecutor’s decision include the defendant’s culpability, which may be lacking because he or she acted out of a worthy motive or has mental defects. Finally the prosecutor must decide if he has the resources to pursue the case or if it is a low priority for that particular office.

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.

10Q: What is the difference between rape and sexual assault?
A: Rape is often used as a generic term for unwanted sexual acts. However, historically its common-law definition required the sexual act to be intercourse, the rapist to be a man, and the victim to be a woman, other than his wife. Furthermore, the act had to be committed as a result of force or the threat of force. Common-law rules often required the rape to be corroborated by independent witnesses to negate the offender’s defense of consent.

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.

11Q: What is a preliminary hearing?
A: A preliminary hearing is an appearance before a district justice, where the Commonwealth must show that there is enough evidence against the defendant to go forward to trial. The Commonwealth has very little work to do at the preliminary hearing, because the judge nearly always finds that the Commonwealth has presented enough evidence for the case to go forward.

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.

12Q. What is an arraignment?
A. An arraignment is hearing before a judge at which a defendant enters a plea of guilty or not guilty. During the arraignment, the judge will formally read the charges against the defendant out loud in open court. More often that not, defense counsel will say something along the lines of “Waive reading, your Honor.” This simply means that the defense counsel understands the charges against the defendant, and is saving the court some time by waiving the right to have the charges formally read.

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.

13Q: What is a pretrial conference?
A: The pretrial conference is typically the first time that the defendant and defense counsel have the opportunity to speak face to face with the district attorney or prosecutor in the case. At the pretrial conference, the state wants to gain an understanding of how the case will proceed. The district attorney and the defense counsel will discuss whether the state will extend a plea bargain offer, whether the defendant will accept a plea bargain offer, whether the case will settle quickly or go to a full trial. The attorneys will also discuss any issues regarding the suppression of evidence, discovery issues and motions which have been filed or which are to be filed.

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.

14Q: What is a suppression hearing?
A: When the police gather evidence, they must do it in a legal manner. For instance, in order to search a home, the police must have a valid search warrant.
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.

15Q: How does plea bargaining work?
A: It has been said that pleas bargains are the grease that allows the wheels of justice to keep turning. Without plea bargains, the entire justice system would grind to a halt.

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.

16Q: If I accept a plea bargain, does it appear on my record as a conviction of guilt?
A: Yes. When a defendant accepts a plea bargain and agrees to plead guilty to some of the charges, that defendant is admitting guilt and the court will enter a conviction against that defendant. Pleading guilty to a charge results in a conviction for that charge.
17Q: Several years ago I entered a guilty plea on a minor crime, and now I want to get it removed from my record. Can I have it expunged?
A: No. If you have entered a plea of guilty, nolo contendre or gone to trial and been found guilty and sentenced, you cannot have your record expunged. Expungement is for those persons who have completed the A.R.D. program, been found not guilty at trial, gone through probation without verdict program or had the charges dropped. Persons who have a conviction on their record cannot wipe it out through expungement. The only exception to this rule, is that expungement is available to a person who reaches the age of 70, who wants their record cleaned up after living a crime-free life.
18Q: What is the license suspension for a DUI in Pennsylvania and what is the ARD program all about?
A: Each case is different. Upon a typical first time conviction for DUI, a driver will have his or her license suspended for twelve months. In addition, a driver who refuses to submit to a breath test will lose operating privileges for an additional 12 months.

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.

19Q: So why bother to look into ARD?
A: Simple. Getting through the ARD program means that you are allowed to answer “no” on job applications that ask if you have ever been convicted of a crime. (You can also safely answer “no” to any question about whether you have ever been in an ARD program – employer’s don’t have the right to ask this, and they don’t have access to the court records – they are sealed in the office of the District Attorney)

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.

20Q: I pleaded guilty a few years ago to a crime, and I paid a fine. Now I want to get my record expunged - can I do that?
A: Probably not. Expungement is typically reserved for those defendants who have competed ARD, been found not guilty, had the charges against them dropped or been granted a probation without verdict. It is not for those persons who have been found guilty or who have pleaded guilty.
21Q: What is the difference between a felony and a misdemeanor?
A: Most people are aware that felonies are more serious crimes than misdemeanors, however, the definitions of felony and misdemeanor differ from state to state. In Pennsylvania, crimes are divided into four categories: homicide, felonies, misdemeanors and summary offenses. Felonies and misdemeanors are further broken down by degree, with corresponding maximum penalties as follows.

  • 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.
22Q: What should I do if I am arrested?
A: If the police arrest you, do not say anything to the police that could incriminate you and do not consent to any searches. If the police ask you questions, you should state that you are invoking your right to remain silent unless and until you have had a chance to consult with an attorney. Normally, police will stop asking questions, when you invoke your Fifth Amendment rights.

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.

23Q: What is the role of the Investigative Grand Jury?
A: Grand juries are no longer used in Pennsylvania for routine, criminal cases. Rather, they are used only in complicated cases involving serious charges and in which there are usually numerous potential defendants. These cases tend to be those in which traditional law enforcement methods have failed to build solid cases against suspects, and the purpose of bringing a case before the Investigative Grand Jury is to force witnesses to testify, with the hope that this will lead to sufficient evidence to bring charges against at least some of the suspects. Most Investigative Grand Jury proceedings are brought by the Pennsylvania Attorney General’s Office.

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.

24Q: What is the role of the prosecutor?
A: The prosecutor is the attorney who represents the federal, state or local government in a case against a criminal defendant. In Pennsylvania, each of the 67 counties has a district attorney, who serves as the chief law enforcement officer in the county. Most district attorney’s offices also have assistant district attorneys with varying degrees of authority. In bigger cases, the police will not file charges without first seeking approval from the district attorney, or at least from an assistant district 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.

25Q: What is the difference between probation and parole?
A: Probation is a type of criminal sentence that allows a person to stay in the community rather than serve time in prison, as long as he or she complies with certain conditions, such as regularly reporting to a probation officer, refraining from alcohol and drugs, remaining employed or in school, not changing residences without permission and not committing further crimes. Parole is the supervised release of a prisoner from incarceration into the community before the end of his or her sentence. Conditions of parole are similar to those of probation.

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.

26Q: The police did not even read me my rights. Does that mean that the arrest is invalid and the charges will be dismissed?
A: No. There is a commonly held misconception that police are required to read a suspect his Miranda rights and that if they fail to do so, that the arrest is so flawed that the charges will be dismissed. The remedy is not dismissal of the charges, but suppression of the confession. If the police fail to read a suspect his rights, then anything the suspect says cannot be used against him at trial. Likewise, if the police read the suspect his rights and he invokes his right to remain silent or to speak to a lawyer, and the police nevertheless continue to question him, then anything the suspect says as a result of this questioning cannot be used against him at trial.

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.

27Q: My offense is minor. Do I really even need a lawyer or can I just handle this on my own?
A: No offense is minor when you are the one charged! Even relatively minor offenses can have serious long-term consequences. For example, a conviction for underage drinking or drug possession will result in a loss of your driver’s license, even when the offense had absolutely nothing to do with driving a vehicle. A drug conviction will eliminate your eligibility to receive federally subsidized student loans. Any type of non-traffic offense conviction can seriously jeopardize your chances of being accepted into certain graduate school programs or being hired in certain professions, such as teaching. If you hire an attorney, you may be able to successfully fight the charges, or the attorney may find ways to lessen the consequences of the offense.
28Q: I'm guilty. I have no defense. I just want to plead guilty and get this over with. Should I even bother getting a lawyer?
A: Yes. You should always have an attorney when charged with a misdemeanor or felony and even for some summary offenses. Most judges will be angry or annoyed if you show up to court to face criminal charges without a lawyer. If you cannot afford to hire an attorney, you should apply for representation by the public defender’s office.

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.

29Q: If they do charge me, could I get convicted just based on someone else's word?
A: Yes.
30Q: You mean to tell me that someone can just make up a ridiculous story, walk into a police station and have someone charged with a crime?
A: Yes. There is a common misconception that a person can be charged with a crime only if there is hard, physical evidence, not just mere allegations by a complainant. However, if the police believe the complainant, they can charge a defendant, even in the absence of physical evidence. For some crimes, such as terroristic threats, there will rarely be any physical evidence. If the jury believes the word of the complainant beyond a reasonable doubt, the jury could convict a defendant based solely on the complainant’s testimony, which is unsupported by any other evidence.

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.

31Q: My girlfriend and I got in a fight and I hit her. We made up and are back together. Can she just drop the charges?
A: No. Your girlfriend is actually not the one who charged you in the first place and therefore, she cannot drop the charges. Usually, the only people who file criminal charges in Pennsylvania are members of law enforcement. The exception involves private criminal complaints, which usually are for relatively minor matters such as passing a bad check at Wal-Mart. The police file the vast majority of criminal charges.

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.

32Q: The police want to get my side of the story. Should I give a statement?
A: It depends upon the case.

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.

33Q: This is the first time I've been in trouble in Pennsylvania or this is the first time I've been in trouble in this county, so will they treat this charge like it's my first offense?
A: No. Your prior record score is based upon all prior non-summary criminal convictions. It does not matter where these offenses occurred, as long as Pennsylvania has a similar law to the one you violated in another jurisdiction. Thus, if you had 3 DUI convictions in other states over the past 10 years, your fourth DUI in Pennsylvania counts as your fourth offense.

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.

34Q: Are the laws of Pennsylvania different than laws in other states because Pennsylvania is a Commonwealth-State?
A: No. The fact that Pennsylvania is known as a Commonwealth has nothing to do with its legal system. It is a commonly held misconception that the laws of Pennsylvania are more restrictive and less favorable to defendants than in other states because Pennsylvania is officially known as a Commonwealth. This misconception appears to be especially prevalent in prisons.
35Q: Can I settle the charges against me?
A: A “settlement” is an agreement made by parties in a civil (non-criminal) case, like a personal injury lawsuit. In a criminal case, a prosecutor may offer a deal called a “plea bargain.” But she isn’t required to do so, nor can a defendant demand it.

A plea bargain can be offered by the prosecutor and may include:

  • A reduction in the seriousness of the charge
  • An agreement to reduce the number of charges filed in return for a guilty plea or cooperation with other cases
  • A recommendation to the judge that you receive a lighter sentence than the one you could get if convicted after a trial
36Q: Does community service or probation still appear on your permanent record?
A: Community service and probation are types of criminal sentences. You can only be sentenced after you plead guilty to a crime or are found guilty by a judge or jury.

If you plead guilty on a deferred judgment or suspended sentence, you won’t have a permanent record once you successfully complete the probation or community service. At that point, the law considers the guilty plea withdrawn as if it was never entered. There are, however, some circumstances in which you can still be penalized for it. For example, deferred sentences count as one point in computing your criminal history under federal sentencing guidelines.

If you plead guilty with no deferment of the sentence or conviction, or if you are found guilty following a trial, you’ll have a permanent record.

If you pleaded guilty and don’t know whether it was to a deferred sentence type of arrangement, you can go to the courthouse where you entered your guilty plea and ask to see your file. There will be a docket sheet or other listing of court minutes inside, containing the terms of your plea and sentence, including whether the judgment was deferred.

37Q: Does deferred prosecution mean you have to admit to the felony you've been accused of?
A: No. Generally, there are two types of deferred resolutions to criminal charges: a deferred prosecution and a deferred judgment.

In a deferred prosecution, the proceedings in a criminal case are put off for a period of time, say one year, subject to certain conditions. The typical condition is that the defendant not be charged or convicted of other crimes during this period. At the end of the time period, if all conditions have been met, the charges are dismissed. No plea of guilty or judgment of conviction is entered. If the defendant doesn’t comply with the conditions of the deferred prosecution, the prosecution of the case continues and the defendant can either plead guilty or go to trial.

With a deferred judgment, the defendant must enter a plea of guilty. The case is continued for a period of time subject to certain conditions, usually including that the defendant not be convicted of another crime. If the defendant satisfies these conditions, at the end of the time period the guilty plea is considered withdrawn and no judgment of conviction or sentence is entered. While the defendant is free to say he’s never been convicted of a crime, the guilty plea could have possible future ramifications. For example, deferred judgments are counted in computing a defendant’s criminal history score under the federal sentencing guidelines.

In addition, if the defendant violates the terms of a deferred judgment, the guilty plea goes into effect and the court will proceed to sentencing without a trial. Obviously, from a defendant’s standpoint, a deferred prosecution is preferable to a deferred judgment. Prosecutors also offer it far less frequently.
It’s a good idea to discuss any decision on whether to take a deferred prosecution or deferred judgment with a qualified criminal defense attorney.

38Q: If you make a plea bargain with the police department to reduce charges, will the district attorney back the police department's promise?
A: Not necessarily. Police and other law enforcement agents (such as the DEA or FBI) don’t have the power or authority to make binding plea agreements. Only a prosecutor can make a binding promise that you’ll not be charged with a crime or that you’ll receive a lighter sentence if you cooperate, confess, or agree to plead to lesser charges.

Police can tell you that they’ll make your cooperation known to the prosecutor. They can tell you they’ll recommend to the prosecutor that you receive a more lenient sentence or that all or some charges not be filed against you. But they can’t make promises that are binding on a judge or a prosecutor.

If the police have made you such a promise, talk to an attorney about making sure the prosecutor will honor the promise.

39Q: Is there a statute of limitation for filing criminal charges?
A: Generally, yes. Almost every state has a time limit on how much time the government has to charge you with most crimes. The time limits vary by state, and federal laws are different, too. Sometimes, though, there’s no time limit at all. For instance, in most states, there’s no time limit for murder or some sex-related crimes against children. So, a person could be charged with some crimes 5, 10, or even 50 years after the crime was committed.
40Q: What does pretrial release mean?
A: Pretrial release is similar to bail. How it works depends on whether state or federal law applies to the case.

When a person is arrested on federal criminal charges, she is assigned to a pretrial release officer who’ll review her personal history – including ties to the community, close family and other relationships, employment history, and prior record – and then make a recommendation to the federal court as to what, if any, bail would be appropriate for her.

The federal criminal justice system is unlike many state systems where bail is always set. For many federal offenses, including drug offenses, the government can request that no bail be set and the person detained in custody pending trial as a flight risk or a danger to the community. The pretrial release officer operates independently of the prosecutor and court, and forms her own opinion as to whether the person should be denied bond or not. Pretrial release officers don’t generally ask questions about the current offense you’re trying to “bond out” on, so there isn’t any reason not to be honest with them about your family, financial and employment history. Cooperation with this officer may help get you released on bond. You should always have your lawyer present when providing information to a pretrial release officer or any other government agent.

Assuming the court decides that bail should be set, it will attempt to set it in an amount that you can meet. If it’s set too high, you can go back to court in a short period of time and explain why the bail is too high. In all likelihood, it should be lowered. In the federal system, once the court decides you’re bondable, bond should be set in an amount and with conditions you can meet.

Bondsmen have a far lesser role in federal criminal cases than state cases. This is because the federal court may act as the bondsman by allowing you to post 10% of the bond amount with the court, and then posting the remainder through your own promise to appear, or by giving collateral, such as real estate. When the case is over, the court (unlike the bondsman) returns your 10% and your collateral.

If you’ll be meeting soon with a pretrial release officer, it might be worthwhile for you and your lawyer to put together a package of assets and conditions you find agreeable as part of your bond, and take them to the pretrial officer and explain why they’re sufficient to secure your appearance at trial. If you can sell her on the package, it’s more likely she’ll go to bat for you with the court.

41Q: What does the no contest plea mean?
A: There are three possible pleas to a criminal charge- guilty, not guilty and “nolo contendere” or “no contest.” A plea of “no contest” means you don’t contest the charges against you. While a “no contest” plea isn’t an admission of guilt, it does allow the court to impose a sentence on you. In practical effect, there’s no significant difference between a “no contest” plea and a guilty plea.

Why would you want to plead “no contest” instead of “guilty?” If you don’t agree that you’re guilty, but you believe a judge or jury might find you guilty anyway, you may not want to risk going to trial. In this situation, you may want to plead “no contest” to the charge, or to a lesser charge, because it’ll resolve the case without a trial and won’t require you to admit your guilt.

Like a guilty plea, a “no contest” plea waives important constitutional rights, including the right to trial by jury and to confront the witnesses against you. And unless there’s some sort of agreement for a deferred adjudication, the court may sentence you on a “no contest” plea as if you pleaded guilty, and you’ll have a record of conviction.

42Q: What is double jeopardy?
A: The Double Jeopardy Clause in the Fifth Amendment to the US Constitution protects individuals from being tried twice for the same crime by the same government. The clause protects an individual or business from:

  • A second prosecution for the same offense after acquittal
  • A second prosecution for the same offense after conviction
  • Multiple punishments for the same offense

A single crime may contain multiple elements such as burglary, kidnapping, and rape. Each element can be prosecuted though separate trials or jointly during the same trial without raising a double jeopardy situation. However, once the final judgment is reached with regard to each element, 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.

43Q: What is the difference between a felony and a misdemeanor?
A: A misdemeanor is a relatively minor crime, like shoplifting. More serious crimes are felonies, like rape or murder.
The major difference is the punishments or sentences for each. Punishment for a felony usually includes more than one year in a state or federal penitentiary or prison, and possibly death. Misdemeanor convictions, on the other hand, usually result in a sentence of less than one year in a state or county jail (from a few days to a several months).
Sentences for both misdemeanor and felony convictions may include a fine in addition to time in jail or prison.
44Q: What is the difference between an arraignment and a preliminary hearing?
A: Generally, a preliminary hearing is where a judge decides whether there’s enough evidence to make you stand trial on the charges filed against you. The judge’s decision at a preliminary hearing is like the decision a grand jury makes in deciding whether to return an indictment against you.
The prosecution must establish “probable cause” of two things: that a crime was committed and that you committed it. “Probable cause” is a low standard of proof. Think of it like “reason to believe.” It doesn’t rise anywhere near the level of “proof beyond a reasonable doubt” or even “preponderance of the evidence,” which is the standard used in civil cases.

The rules of evidence are relaxed at preliminary hearings. Hearsay is allowed, and evidence may be used against you regardless of whether was legally collected or “seized.”

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

In most states, it’s at the “arraignment,” not the preliminary hearing, that a person enters a plea of guilty or not guilty. In some states and counties, the arraignment happens immediately after the preliminary hearing. In others, the arraignment is scheduled for a future date.

You’re permitted to waive a preliminary hearing, and it’s fairly common to do so. If you waive the hearing, you’re not pleading guilty; you’re just admitting that probable cause exists to make you stand trial on the charges. The waiver is sometimes accomplished by filling out a form in court. Oral questioning by the judge to make sure you understand you’re giving up the right to have the hearing may also do it.

You should discuss any decision on whether to have or waive a preliminary hearing with a qualified criminal defense attorney.

An arraignment is a court hearing at which you enter a plea of guilty or not guilty to the charges that have been filed against you. If you’re contesting the charges, your plea will be not guilty.

Assuming you’ve been granted bail after your arrest, it’s unlikely bail will be revoked or cancelled at your arraignment. Bail usually continues through trial or a guilty plea, and in most places through sentencing.

But it’s possible the prosecutor may ask the judge to either increase or revoke your bail:

  • If you violate the terms of your bond or commit another crime while on bail
  • If the government receives information that you intend to flee before trial or that you lied about your prior criminal history in your bail application
  • If more serious charges are filed against you while you’re waiting for trial

In most, if not all, cases, you or your lawyer will be notice 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.

45Q: Whom does the public defender work for? How closely do they work with the district attorney?
A: Public defenders are paid by the state, as are district attorneys or prosecutors. But their functions and responsibilities are very different. The district attorney represents the citizens of his state. A public defender represents individuals who are charged with committing crimes. Once assigned to a case, a public defender’s loyalties are undivided and lie with the accused person he represents.

The district attorney and public defender are adversaries. However, because many cases end in plea bargains, which usually involve an offer made by the district attorney to the public defender, it may seem like the two work closely together. And it may well be that particular public defenders and district attorneys have a good working relationship, especially if they’re assigned to the same courtroom for months at a time.

But make no mistake about it: Public defenders and district attorneys are not “in cahoots.” Public defenders are as committed to their clients as are private criminal defense attorneys. On the whole, public defenders perform at least as well as private attorneys and for far less pay and often less glory.

46Q: Why do some people have to post bond to get out of jail and others don't?
A: In determining the amount, if any, of bail that needs to be posted, a judge will consider:

  • The type and seriousness of the charges
  • Any prior failures to appear
  • Previous criminal record
  • Connections to the community
  • The probability that you’ll appear in court

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

Courts look at a variety of factors when deciding to release a defendant O.R., the most important factor is the likelihood that the defendant will flee to avoid trial. The judge may look at:

  • Whether the defendant’s family lives in the area and how long the defendant has lived there
  • His past criminal record
  • Whether he has a job in the area