The severe and detrimental impact on one’s life after simply being accused of a federal crime (let alone being convicted) cannot be understated. Penalties for breaking Federal law virtually always result in imprisonment, and in some cases, even capital punishment. We value our freedom so highly, but often inexperienced Federal criminal defense attorneys overlook the fact that in Federal court, most every potential conviction also exposes the defendant to fees and forfeitures, the types of financial penalties which imprison people long after they’re released from custody. So, beyond the repercussions against your freedom, an indictment is a mark against your name that can negatively impact your personal life, career and finances.
Federal law applies to each and every one of the 50 states
Federal Criminal Defense Resources
The Federal court system acts simultaneously alongside State courts, but rarely together on the same case. Federal courts conduct criminal trials relating to Federal crimes. Be aware that the same criminal misconduct may violate both a State law and a Federal law. An example of this is drug possession and distribution. The single act of selling drugs violates both State law and Federal law, and exposes the seller to prosecution in both courts. Usually, the law enforcement agency investigating the crime makes a choice which prosecutor – state or federal – to whom the case is brought. But in many instances, defendants face prosecution in both courts, consecutively. This gives law enforcement two bites at the apple, so to speak, to ensure the accused faces punishment.
Being accused of a Federal crime is a serious concern that should not be understated. Penalties for breaking Federal law include fines, imprisonment and even capital punishment.
Federal courts operate under similar, but different, legal processes to State courts. If you are accused of a Federal crime, you need an experienced defense attorney to defend your rights. There are laws to protect defendants, but it takes an experienced and competent attorney to ferret those laws out, put them to use for you, and ensure those rights are asserted. Defendants often unknowingly forfeit their rights because they waive their right to an attorney at the earliest and most important stage of the criminal justice process – the arrest and interrogation. Always insist on conferring with an attorney before divulging anything to an officer beyond simply your name and address. Always be polite and respectful, but remain firm in your resolve not to speak with law enforcement unless and until you are counseled to do so by an experienced attorney who has your best interests in mind, and no one else’s.
Keep this in mind though: The right to counsel – while clearly the most important right within the criminal justice system – is not the only right to be understood, asserted and protected. Other Constitutional rights include:
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Right to a fair trial
You cannot be deprived of life, liberty or property without due process. If your trial was unfair or conducted unlawfully, the penalties leveled against you may be shown to be unjustified. This includes your right to be innocent until proven guilty, while the prosecution shoulders the burden of proof. A guilty verdict is only reached when there is no reasonable doubt that the accused might not be innocent.
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Freedom from unreasonable searches and seizures
Evidence used at trial which was initially collected illegally is often inadmissible against the accused during a trial. If the evidence against you was obtained improperly, this evidence cannot be considered by the jury or the court, if challenged properly and aggressively by your defense attorney.
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Freedom from warrants that were issued without probable cause
Warrants are used to invade people’s privacy, and are often executed against the rule of law. Evidence obtained from unjustified warrants is often inadmissible, and should not be considered by a trial court or jury.
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Freedom from self-incrimination (being forced to testify against oneself)
The Fifth Amendment to the United States Constitution holds that individuals cannot be forced to bear witness against themselves. Often times, statements obtained by arresting officers and detectives can be thrown out of a trial or hearing if found to have been elicited from a suspect in violation of his or her right to be free from self-incrimination.
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Right to remain silent
One invokes the right to remain silent by plainly stating “I am invoking my right to remain silent. Please cease all questioning efforts now.” See Berghuis v. Thompkins, 560 U.S. 370 (2010). Invoking your right to remain silent, choosing wisely instead to speak with an attorney before answering police questions is always advised, without exception. The prosecution is always looking for any avenue to win. The prosecution will go as far as submitting to the jury and trial court a statement elicited from a defendant even under the most manipulative of circumstances, to make the defendant appear guilty.
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Right to hear your “Miranda” warnings
An arresting officer must inform you of your right to remain silent and your right to an attorney. If an arresting officer fails to read your Miranda Rights, future testimony you give may be considered non-admissible. See Miranda v. Arizona, 384 U.S. 436 (1966)
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Right to a speedy and public trial
Your trial should follow the exact detail of the law. If you find your court dates are unreasonable, or you suspect that your trial was procedurally flawed, you have the right to appeal the trial court’s decision, and fight for a mistrial, as already discussed within this website. But did you know that there are also time limits within which your trial must commence? Only an experienced criminal defense attorney will know these time limits, and how to assert their application by your trial judge to your case.
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Right to an impartial jury
An impartial jury is an essential part of the due process. If there is evidence of a juror whose selection rendered the composition of the jury less than impartial, the defendant has a legal defense that can be raised in appellate and post-conviction litigation.
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Right to be informed of the criminal charges
If the arresting officer or court fails to inform you of the criminal charges being leveled against you, there once again may be legal recourse.
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Right to confront witnesses
The defense has the right to question and cross-examine witnesses called to testify by the prosecution.
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Right to compel witnesses to appear in court
The defense also has the right to call its own witnesses, including the witnesses previously interviewed by the prosecution. This further ensures a fair chance to cross-examine witnesses and those “experts” who also try to offer damning testimony against the accused.
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Freedom from excessive bails and fines
Bails and fines set by the trial court cannot be excessive. If you feel you are facing unreasonable bails or fines, you may have legal recourse.
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Freedom from cruel and unusual punishment
The Eighth Amendment to the United States Constitution protects you from cruel and unusual punishment. If the sentence you are facing or currently serving is excessive, illegal, unfair or inhumane, you may have legal recourse available.
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Right to a competent defense
As mentioned above, defendants are entitled to a competent defense attorney. If a defendant can show that his or her attorney performed deficiently, post-conviction relief in the form of a new trial or a reduced sentence may be available. See Strickland v. Washington, 466 U.S. 668 (1984).
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Right to an individualized sentence
Penalties levied by the court should be proportionate, fair, and non-excessive. The unique details of a case deserve consideration by the court when formulating a sentence. If you are currently serving an unfair sentence, then you may have legal recourse.
A strong Federal criminal defense starts with exhaustive research
- Legal research is the backbone of any Federal criminal defense. First, of course, a competent federal criminal defense attorney must interview the client. Any and all information pertaining to the case is useful at this point. There may be a piece of information that seems insignificant to the client, but the defense attorney may be able to use it to construct a legal argument that is not readily apparent to the client. For this reason, keep a detailed record of all conversations and happenings that surround your case, start to finish. The unique details of your case deserve to be heard. By sharing all information with your attorney, you increase your chances of the best possible legal outcome.
- Second, after the interview phase, the construction of a true and legitimate defense begins with rigorous legal research. All legal arguments are best voiced when backed with current legal precedent. The law is constantly changing, as each and every new decision published by the many appellate courts at the state and federal level becomes a part of our “common law,” a tapestry of written case summaries that lawyers cite in comparing and contrasting your unique case, in an effort to persuade the court of a certain legal conclusion, and ultimately, a case outcome. Thus, a strong defense is often dependent in its entirety upon an attorney who is up to date on all statues and “common law” court rulings that pertain to the issues inherent in your case. Specialized knowledge of criminal defense and local statutes helps here. And once the issues are identified and the winning arguments are formulated, these arguments and their supporting common law citations must be reduced to written format, or what we call “motions” and “briefs.” Good writing skills make the motions and briefs persuasive and easier to read. Conversely, even the most persuasive of arguments, if presented via poorly written briefs, will likely fail.
- Third, the research process is rendered useless unless your attorney also knows the local court’s rules of procedure which govern how written arguments are to be submitted, and by when. Thus, your attorney must be accustomed to working closely with law office staff, other attorneys, and sometimes even the prosecution, as well as the staff running the courts. Legal notices and paperwork have to be delivered by certain deadlines so the case can continue unabated, on schedule. Evidence that supports a defendant’s case can be deemed inadmissible unless the proper steps are taken to introduce the evidence in a timely manner, giving the prosecution fair notice.
A strong Federal criminal defense depends on pre-trial preparation
The “pre-trial” phase of a Federal criminal defense case is the defense attorney’s opportunity to aggressively defend the accused. The best possible outcome for the defendant at this point is a complete dismissal. But this is rare. It’s like a pitcher throwing a “no-hitter” in baseball. Don’t expect to see too many in any given season. Why? Because the other side (the prosecution) has its own arguments being espoused by its own attorneys. What results is a fierce competition. But unlike baseball where the stakes range from a post-game ice-cream, or even a World Series title, here the stakes could not be higher – your freedom and livelihood.
A strong Federal criminal defense at trial depends on cross examination
Two of the largest aspects of pre-trial preparation include arguing against the prosecution’s use of evidence at the upcoming trial, and preparing to outwit and “impeach” the prosecution’s witnesses, and the experts on whom prosecutors rely to explain the gaps and holes in their case. So, an experienced defense attorney will concentrate his or her mental resources on formulating arguments that explain why certain pieces of evidence should be inadmissible at a later trial, or why certain people should not be allowed to testify. For example, if expert witnesses are to be used by the prosecution, the defense should prepare for a cross-examination that calls into question both the credentials of the expert, and the scientific validity of the claims made by the expert. Then a pre-trial motion (a short form of a brief) should be filed, wherein the relief sought is the disqualification of the prosecution’s expert(s).
Your Federal criminal defense attorney should be skilled at cross-examination of your opponent’s witnesses. Defense attorneys who are poor at cross-examination will let a witness’ testimony unfairly bias the outcome of a court case. While there are many different methods of cross-examining a witness during a hearing or a trial, all have one thing in common as their core – preparation. Hire an attorney who makes it a point of telling you that he or she meticulously prepares for hearings and trial by outlining and writing out virtually all questions to be posed to witnesses, beforehand. Conversely, seriously consider what you are doing if the Federal criminal defense attorney you are thinking about hiring to represent you tells you that they keep it all in their head. That’s the lazy person’s calling-card and excuse for avoiding true preparation. There are no shortcuts. Defending someone’s freedom is a time-consuming process of writing and re-writing, organizing and re-organizing witness outlines and questions.
Competent criminal defense also may involve plea bargaining
During the pre-trial phase of Federal criminal defense, there is also time to negotiate plea bargains. But keep in mind that the reasonableness of the prosecution’s offers will be dependent upon the work put in by your attorney ahead of the negotiation process. Prosecutors are, by nature, competitive, and do not lay down on the job. So unless your attorney has thoroughly prepared, and can show a prosecutor that parts of the government’s case are subject to attack, an optimal plea offer will likely never be forthcoming.
During the pre-trial process of Federal criminal defense, keep a detailed record of all prior plea bargains, and discuss these with your attorney. Always request plea offers in writing. You can save money and time by making sure your trial attorney explains to you all plea bargains offered, for it is often the best possible outcome. But understand that the best plea bargains are offered to the clients of those attorneys who have put in the most pre-trial preparation, and can provide legal and factual bases supporting the suggestion that the prosecutor must bargain away a case, rather than risking a complete loss at a later trial. In other words, a good defense attorney can make a prosecutor feel that they have as much to lose as the defendant.
If your case reaches the post-conviction phase, you will need to obtain from your trial attorney all plea offers, and then immediately share these with your new attorney. “Plea bargaining” is a fertile area of investigation for post-conviction attorneys looking to find a way to reduce a client’s sentence.
For more information on plea bargains, please read my article about plea bargaining.
A strong Federal criminal defense depends on timely objections
Your Federal criminal defense attorney should have to the ability to properly raise and use objections to assert and protect your rights, and maximize your chances of the best possible legal outcome. Failing to object to legal errors in the moment they occur will all but destroy any chances of a successful appeal later. Of the many possible objections, some common ones you will hear in courtrooms across the region include: “hearsay”, “lack of scientific foundation”, or “bolstering by prior consistent statements.” A good way to determine whether you are hiring the right attorney during the interview process is to ask the attorney to explain each of these to you. If the attorney is able to make you understand these legal concepts without much effort, then you know you are likely dealing with someone who is knowledgeable and at ease with the law. Conversely, if the attorney is impatient or terse or too technical in the explanation offered, it is a sign of things to come. It may be better to interview and hire another attorney instead. Of those examples given, here are brief explanations you need to know:
- Hearsay These are statements uttered outside of the courtroom by “person A” when they are not on a witness stand, but repeated by in court by “person B” while they are on the witness stand. While there are exceptions, the law generally bars “hearsay” testimony. A case in point would be a bystander’s remark at an accident scene about who caused a crash, when later relayed to the jury by the responding police officer, is “hearsay.” Why? because the bystander is not the one testifying, and the statement wasn’t made in court when it was uttered.
- Lack of scientific foundation Otherwise referred to as “junk science,” this is testimony offered by so called “experts” whose opinions are less than scientific. Often presented by the prosecution, these opinions are subjective or unconfirmed. To the post-conviction attorney, this is a most recent hot-button topic. There has been a huge spike in sex-offense prosecutions across the region. In sex offense cases, these “expert opinions” are often espoused by state employees who work with alleged victims, and then come to court claiming themselves to be “forensic interviewers” or “family therapists” even though there is no scientific or academic basis for their self-proclaimed job title or opinion testimony. Although the rules pertaining to the admissibility of opinion testimony are complex, with enough preparation and cross-examination, a skilled defense attorney can convince the court that the testimony from the prosecution’s “expert” is without a scientific basis.
- Bolstering by prior consistent statements This is a tool impermissibly utilized by prosecutors often, after their witnesses have been cross-examined. The prosecutor re-directs the witness back to an earlier version of the same testimony the witness gave to the jury before the damning defense cross-examination. The prosecution is trying to insinuate that simply because a witness has said something more than one time, it must be true because of the repetition. For example, just because an alleged victim has told a person the same story in being presented in court, does not guarantee the validity of that statement (then or now). A lie told twice is still a lie. But courts and juries are often tricked by bolstering through prior consistent statements, and it takes an experienced defense attorney to object, and explain the problem rationally.
A strong criminal defense depends on the written briefs and oral arguments
An experienced Federal criminal defense attorney will not just wait until the day of court to present winning arguments at the last minute. Rather, written motions and briefs should be submitted well in advance of the scheduled court appearances, to educate the judge well beforehand about the weaknesses and errors in the prosecution’s case. Communication skills are critical. The written briefs are the heart of any legal case. A strong legal brief can make all the difference in pre-trial, trial, or while appealing. Cases are also complemented by strong oral arguments. Your federal criminal defense attorney should be able to speak clearly and convincingly. Volume is irrelevant; content is everything. Both writing and speaking skills help win cases.
More information on this topic can be learned from reading my blog.
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The importance of hiring an experienced defense attorney can never be underestimated. Hiring the wrong defense attorney can result in harsher penalties and a lifetime of negative repercussions. If you are in a desperate legal situation, or facing a difficult legal challenge, you need a lawyer to aggressively defend your rights. The Law Office of Jonathan Laurans is ready to fight for you. Contact us today for a free consultation or call our office at (816) 421-5200.