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Practice Center - Criminal

Frequently Asked Questions about Criminal Defense

Q: Do I need a lawyer even if I am innocent?

A: Every criminal defendant needs an attorney. Innocent people do end up in jail, and the best way to prevent such a miscarriage of justice is to hire a criminal defense lawyer. Your lawyer will work throughout the criminal justice process to ensure that your rights are protected and that the truth prevails.

Q: If I intend to plead guilty, why do I need a lawyer?

A: Even if you know you are guilty, there are still options. For example, you may be able to make a deal with the prosecutor to plead guilty to a lesser charge (a plea bargain) in exchange for a lighter sentence.

While you could try to negotiate for yourself, it can be very difficult to do so without a thorough knowledge of the law and experience in the practical realities. Criminal defense attorneys are likelier than you are to know what constitutes a good deal, and they also know how to protect your constitutional rights.

Q: What is a prosecutor? How is the prosecutor different from the police?

A: The prosecutor is a lawyer who represents the government that is charging you with a crime. The police are, in this situation, investigators for the government.

Prosecutors are responsible for making the decision whether to charge someone with a crime. They also present the government's case at trial. Prosecutors may be called city attorneys, county attorneys, state's attorneys or district attorneys.

Q: How does the prosecutor decide whether to file charges?

A: The first thing the prosecutor looks for is a legally sound case. Sometimes, cases have legal problems that could get them thrown out of court. For example, if the police violated the defendant's constitutional rights while seeking evidence, that evidence would be inadmissible.

Next, the prosecutor decides if there is enough evidence to make a conviction probable. If the evidence is not very convincing, it would not be worth the time and expense of a trial.

The prosecutor also considers other factors in deciding whether to press charges. The prosecutor's office has limited resources and typically must choose to focus on some crimes and not others. The "war on drugs" might convince prosecutors to concentrate more on drug crimes.

A criminal case is between the government and the accused-not between the victim and the accused. Therefore, prosecutors are under no obligation to go along with a victim's wishes in pressing or dropping criminal charges. However, most prosecutors do take the victim's opinions into account.

Q: What is a grand jury?

A: A grand jury is a group of people called together by a prosecutor to investigate a crime. They do this by listening to testimony, by examining documents, and considering other evidence.

The prosecutor both acts as the grand jury's legal advisor and presents all of the evidence. No judge is present. Unlike a trial jury, a grand jury only considers evidence from the prosecutor's point of view. If you are being investigated by a grand jury, you should have a defense lawyer, but no defense case will be presented and your attorney may not be allowed inside the grand jury room.

The only purpose of the grand jury is to decide whether there is enough evidence to press charges. This is called "indictment." When a grand jury votes to indict someone, the defendant has only been charged with a crime, not found guilty.

Q: Can I be punished for only attempting to commit a crime?

A: In many jurisdictions, attempting to commit a crime is a crime in itself. The purpose of this is to punish people who show themselves inclined to commit crimes-without having to wait until they actually succeed.

In order to convict a person for an attempted crime, the prosecutor must prove beyond a reasonable doubt not only that the person intended to commit the crime, but also that he or she took a step beyond mere planning or preparation and actually began to commit the crime.

Q: What is the difference between parole and probation?

A: Parole is granted when a convicted person has more or less served out his or her sentence. If the prisoner meets certain criteria, a parole board will vote for release subject to supervision by a parole officer. The prisoner may have a lawyer at the parole hearing and at any hearing regarding whether he or she has broken parole. As long as the parolee follows the rules, it is considered that he or she has served the sentence when the parole is complete. If he or she breaks their parole, the rest of the sentence is served back in prison.

Probation also takes place after conviction, but before the sentence is served. The sentence has been decided, but the judge "holds back" on imposing it in order to give a young or first-time offender a second chance. If the person on probation is found at a hearing to have failed to follow the court's orders or disobeys the probation officer, the sentence will be imposed and the person will go to prison. The probationer may have a lawyer at this hearing. If he or she obeys all terms of the probation, he or she will never serve the sentence at all.

Q: What is restitution?

A: Restitution, in the context of criminal law, is when a judge orders a person who has been convicted of a crime to pay their victim money in order to help "make up" for the crime.

Under many state and federal laws, notably the federal law known as the Mandatory Victims' Restitution Act of 1996, restitution is required after any violent crime and certain other offenses.

Q: What is "white collar crime"?

A: "White collar crime" is a term historically used to describe crimes committed by members of the upper classes in the course of their professions. Today, the most common definition of "white collar crime" is based on the type of conduct involved, not the social status of the offender.

Typically, these crimes involve deceit or concealment to obtain property, services, or business advantage. For example, securities fraud, corporate tax evasion, and embezzlement are all considered "white collar crimes." The effects can be devastating, as we saw in the recent Enron case.

Q: Does the justice system deal with children differently than adults?

A: Children facing criminal charges are usually tried in a separate juvenile court system. Historically, juvenile courts have focused more on rehabilitation than the adult courts. Hoping that early intervention will keep kids away from a life of crime, juvenile courts offer more privacy, shorter-term consequences, and programs to help young offenders to make better choices.

In some cases, prosecutors ask judges for permission to charge older juveniles who have committed serious crimes as adults. If, after defense arguments, the judge agrees, the defendant's youth is officially given no special consideration.

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