Being accused of a crime has far reaching implications for you and your family. Each step in the process presents a new opportunity for Brooke M. Barnett & Associates, P.C. to advocate aggressively in your favor. For this reason, it is crucial that you retain an attorney for yourself or loved one as soon as possible. If you have reason to believe you are the target of a federal investigation, retaining counsel NOW can help minimize the charges you may face, or even reduce the likelihood of charges against you being filed. White collar crimes, money laundering, and all federal criminal offenses are very serious, and choosing to navigate the process on your own could expose you to grave consequences.
Nearly every day on the television set the hero cop breaks into the bad guy’s house and beats a confession out of him and we cheer on the cop. Propaganda smears our clear vision. It causes us to accept the diminishment of our constitutional protections as something to be lauded – after all, the cop was protecting us.” -Gerry Spence
If you have been charged with a crime then it is imperative that you know your rights.
Key Constitutional Rights:
- Right to remain silent
- Right to an attorney
- Right to bail (unless it’s a federal crime)
- Right to testify on one’s own behalf
- Right to cross examine and confront witnesses
- Right to a speedy trial
- Right to use courts subpoena power to compel witnesses to testify
- Right to a jury trial (in most cases)
- Right to be presumed innocent
Have you been charged with a federal, state or municipal court offense?
- Federal Offense – first one has to determine whether or not they’re the focus of a federal criminal investigation or actually facing federal criminal charges. If one is being charged with federal criminal charges they will be prosecuted by the United States Government in Federal Court. Unlike states prosecutions, an accused is not entitled to bail and could be held in custody throughout the entire process. If one is being investigated by the federal government you should contact a criminal defense attorney immediately.
- State Court Offense – if you have been arrested and charged with a State offense you will generally be prosecuted in a County Court. State offenses can be a first, second, third and/or fourth degree felony. Generally, a first degree offense carries a sentence of ten to twenty years, except for specific offenses, such as a kidnapping and carjacking, which carry sentences of fifteen to thirty years, and first degree murder, which can carry a life sentence. One should also consider various parole disqualifiers such as the No Early Release Act which mandates one to serve 85% of his/her term before eligible for parole. A second degree offense generally is a five to ten year sentence in state prison. A third degree offense is three to five years and a fourth degree offense can be a sentence up to eighteen months in state prison.
- Municipal Court Offense – this is generally a motor vehicle offense, such as a DWI, speeding, driving on a suspended license, leaving the scene of an accident, etc. One can also be charged in Municipal Court with certain disorderly person offenses such as possession of a controlled dangerous substance, a simple assault, harassment, etc. Disorderly person offenses carry a maximum of six months in the county jail.
What happens once you are charged with a felony? If you have been charged with a felony and are being prosecuted in State court then the process will generally begin as follows:
- Arresting agency will tell you what you are being charged with and will usually provide you with a copy of your complaint showing you the charges and when the alleged incident occurred.
- Bail – either the arresting agency will tell you what amount of bail has been set or you will be told once you are taken to the county jail. The amount of a bail is usually determined by the nature of the alleged crime and its degree.
- First Appearance – if one is unable to make the bail and is taken to the county jail, you will then be brought before a judge either in person or via video court sometimes known as CJP (Criminal Judicial Processing) where a public defender or private counsel, if hired, will acknowledge the charges on the record in open court, will enter a plea of NOT GUILTY and will then argue for a lower bail.
- Under New Jersey law an arraignment is the next stop in the judicial process. If you are given an arraignment date that means that your charges have been presented to a grand jury and they have indicted you on those charges.
- Grand Jury – If a case is not resolved at the PDC date, then the prosecution will seek indictment of the matter through presentation to the Grand Jury. The 23 members of a Grand Jury panel are not determining the defendant’s guilt or innocence. The purpose of the Grand Jury is to determine whether there is enough evidence to bring forth formal charges against the defendant through an indictment. The Grand Jury is presented evidence by the State, such as documents, videotapes, or testimony. The defendant’s attorney is not permitted to be present. Grand Jury proceedings are considered closed or “secret” so that an accused person’s reputation is not tarnished and witnesses may testify candidly. If a Grand Jury finds there is not sufficient evidence, it will “No Bill” the charges, which are generally at that time dismissed. However, if it does find sufficient evidence, it will issue an indictment, which the defendant will then be arraigned on shortly thereafter.
- At the arraignment the attorney for the accused will receive a copy of the indictment, which is a formalized complaint of the charges brought against the accused. The attorney should also receive a packet of discovery pertaining to the allegations and if not given all discovery then the attorney will request the missing pieces of discovery and the State shall provide it within a reasonable time before the next court date and/or before trial. If the State fails to turn over all discoveries then they shall be precluded from using it at trial. The exclusion of discovery may prevent the state from proving their case at trial and thus the accused could be found NOT GUILTY.
- Note – in some instances an accused will be given a notice to appear in court for a PDC (Plea Disposition Conference) date. This means that the charges have not been presented to a grand jury and an accused and his/her attorney may have an opportunity to work out their charges pre-indictment based on plea negotiations with the prosecutor. If one chooses to work out their charges pre-indictment the accused has waived their right to have their charges presented to a grand jury and will have disposed of their case by pleading guilty to either the initial charge or an amended or lesser included charge.
- Status conferences are held throughout the legal process thus allowing the defense attorney to negotiate with the prosecutor the status or outcome of the case. Depending on the complexity of the case and the nature of the charges there could be anywhere from one to multiple status conferences before a resolution is reached. It is during this stage of the criminal process that both the defense and the state shall file any pre-trial motions that are applicable to the case. For example, if one is charged with a drug offense and the accused was searched by law enforcement and they did NOT have a search warrant to do so, then a good defense attorney will file a motion to suppress the evidence. If an individual or an individual’s home or car was searched without a search warrant then the arresting agency may have violated the accused’s Fourth Amendment right under the United States Constitution which states that one has the right to be free from illegal searches and seizure.
- Examples of Pre-Trial Motions:
- Bail Motion (learn more)
- Motion to Dismiss the Indictment
- Motion to Suppress
- Miranda Motion
- Wade Motion
- Motion for Severance
Pre-trial Conference/Plea Cutoff
- If an accused does not wish to plead guilty and/or plea negotiations are no longer meaningful because one cannot plead guilty to a crime that they did not commit then a pre-trial memorandum shall be filled out by the defense. This memorandum will outline all the charges that the accused is being charged with, the statutory maximums and/or the amount of jail time one could receive if found guilty at trial, any unresolved legal issues which shall take place before trial and an agreed upon trial date between the court, the state and the defense. All of this will be explained to the accused by the judge in open court. After this memorandum is explained and signed by all parties then that will end all plea negotiations and the trial will begin on the decided date.
- If an accused has pled guilty to a crime and/or is found guilty after trial then the court will impose a sentence. Depending on the nature or degree of the crime an accused could receive a noncustodial sentence (i.e. probation), a county jail sentence (i.e. up to 364 days in the county jail), or a state prison sentence. At the time of sentencing the defense shall be given an opportunity to argue for a lesser sentence and the accused and/or friends and family of the accused will be allowed to present arguments in mitigation of sentence. Once sentence is imposed the court will advise the accused of his/her right to appeal the sentence.
- An appeal of a criminal conviction must be pursued very soon after the end of the case. It is important to seek the advice of an attorney as soon as possible, so that a careful analysis of what occurred leading up to the conviction can be conducted. Issues such as the protection of rights during trial by defense counsel, erroneous trial court decisions, and improper application of the law, if identified, can be the basis for an appeal.
- A person who pleads guilty to committing a crime or is convicted by a jury will then be sentenced as described above. After sentencing, a convicted person may believe there was some deficiency or problem with the process that led up to his or her conviction and seek the remedy of post-conviction relief, or “PCR.” PCR is not a substitute for an appeal, but it is a request that the court review a sentence because a person asserts, for instance, that he was denied his rights under the U.S. or New Jersey Constitution in the proceedings leading up to conviction, or that other technical deficiencies created problems with the conviction. To initiate the process, the person seeking relief’s attorney will file a petition preserving all possible grounds for the granting of PCR. Once the petition is received by the Court and the prosecutor, the prosecutor will have the opportunity to respond, and then the judge will decide whether or not to hold an evidentiary hearing to determine if the person was improperly convicted.
Brooke M. Barnett & Associates, P.C. 60 Park Place, Suite 606, Newark, New Jersey 07102
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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