Frequently Asked Questions
I believe that I am under investigation by law enforcement authorities. Should I wait to retain an attorney until after I am charged with a crime?
No. You should consult an attorney immediately. It is sometimes helpful to think of the criminal justice process as a funnel that narrows as it progresses. As a general rule, as the process begins, law enforcement officers weed through all of their leads, selecting for investigation only those that appear the most promising and taking no action on the rest. As they investigate their most promising leads, law enforcement officers focus their energy and resources on the cases supported by the strongest evidence. Once an officer believes that an investigation has resulted in sufficient evidence to warrant the filing of a criminal charge, the officer will take that evidence to a prosecutor. The prosecutor will then make an independent assessment of the strength of the evidence and will determine whether a criminal case should be filed. At each stage of this process, some cases are weeded out and there may be many opportunities to avoid prosecution. An attorney can help you through this process and in some cases, may be able to help you to avoid being prosecuted at all.
How do I choose a criminal defense attorney?
It is important to select the right attorney to defend your federal criminal case. A criminal conviction may result in incarceration. In addition, conviction of a crime can have very serious collateral consequences. For example, felony convictions and certain misdemeanors can impact your right to vote, hold office, serve on a jury and possess a firearm. A criminal conviction may impact civil or family court proceedings. In addition, a conviction can adversely affect your ability to obtain employment or licensing in certain fields. Because a criminal conviction can have very serious consequences, including but not limited to incarceration, it is important to choose an attorney who is experienced in criminal defense. Moreover, when you are charged with a federal crime, it is very important to select an attorney who is experienced in federal criminal defense. The state and federal criminal systems work differently. An experienced federal criminal defense attorney knows the system, the rules and the law and can put that knowledge to work for you. In addition, defending yourself against a criminal charge is a costly, stressful and emotionally draining experience. A good attorney is accessible, responsive and caring. You should feel comfortable talking openly to your lawyer about your case.
Am I required to hire a lawyer who is admitted to practice in the state in which the federal district court in which I have been charged is located?
No you are not. A lawyer who is admitted to practice law in any American state can practice in any federal court in the country, subject to certain local restrictions. A lawyer who is not a member of a particular federal district court already can apply to be admitted to that court pro hac vice which means "for that case only." Some federal district courts will require a lawyer appearing pro hac vice to obtain local counsel to ensure that the defense team complies with all local rules and understands local practice. As an example, a lawyer who is admitted to practice law in Texas can enter an appearance pro hac vice and defend a federal criminal case in federal district court in California, New York, North Dakota, Mississippi, Ohio, etc. Similar rules apply in the federal appellate courts.
How much will it cost me to hire a lawyer to handle my federal case and what if I can't afford one?
Federal criminal law is a very specialized field. Federal criminal cases are usually much more factually and legally complex than cases in state court. As a result, federal criminal cases often require a significantly greater expenditure of time by the lawyer than state cases. For this reason, hiring a lawyer to handle a federal criminal case often costs more than hiring a lawyer to handle a state case. Factors that impact the cost of representation include, among others, the volume of discovery, nature of the case, complexity of the issues and experience of the lawyer. For this reason, it is impossible to estimate how much a case will cost to defend without a consultation. However, because you have a constitutional right to a lawyer's assistance if you are charged with a crime, if you cannot afford to hire an attorney, the court will appoint one to represent you. The law that provides for such appointments is known as the Criminal Justice Act. The court can appoint the federal public defender's office or a private lawyer who is paid with public funds. You must prove to the court that you lack the means to hire a lawyer before one will be appointed for you.
If I retain a lawyer to represent me during the investigative process, will the officers or prosecutors think that I have something to hide?
Defense attorneys play a very important role in the investigative process. As an initial matter, a defense lawyer can help you assess whether it is in your best interest to cooperate with an investigation at all. If cooperation is the best plan, an attorney can assist you in determining what information to provide and how to provide it. An attorney will work to protect your rights as an investigation proceeds. Law enforcement officers and prosecutors understand this role and know that defense lawyers are commonly involved in the investigation process. Representation by an attorney can only help you.
What is a federal law clerk?
A federal law clerk is a lawyer who works for a federal judge and assists with cases pending before the court. Depending upon the judge, a law clerk may review motions, briefs and other submissions, perform legal research, help draft opinions, attend trials and provide any other assistance the judge requires. As a general rule, the application process for a federal clerkship is highly competitive with hundreds of applicants for each position. Once selected, a law clerk will usually serve for a one or two year term. During a clerkship, the law clerk works closely with the judge honing his or her analytical and legal writing skills. A clerkship provides an invaluable opportunity to learn the workings of a federal court from the inside and to establish professional relationships with the court and clerk's office staff and attorneys appearing before the court.
I went to trial in federal court and was convicted. What is going to happen to me now?
In federal court, sentences are imposed by the presiding judge. Juries never decide the sentence, and indeed are not even permitted to know how much time the defendant is facing. Usually, the first step in the sentencing process is that the judge will enter a scheduling order establishing a timetable for each of the steps. You will then be interviewed by a United States Probation Officer assigned to your case. This is sometimes called the "Form 1" or presentence interview. During the presentence interview, the Probation Officer will obtain personal information from you. This information may include family and educational background and health and financial information. In addition, the Probation Officer will sometimes ask questions about the offense of conviction. The Probation Officer will then use the information obtained from the interview and provided by the prosecution to prepare a presentence investigation report (known as the "PSR" or sometimes the "PSI") for the judge to use in determining the appropriate sentence. Because the presentence interview and the PSR are so important, your lawyer should attend the presentence interview with you. Once the PSR has been prepared, a copy will be provided to the prosecution, the defense and the court. Both the prosecution and your defense attorney will have the opportunity to object to the PSR. The Probation Officer will then respond to any objections in a document known as an "Addendum" to the PSR. Finally, your lawyer, the prosecutor or both may file motions or other sentencing materials for use by the judge in determining your sentence. At sentencing, the judge will consider all materials filed by both sides and arguments of the lawyers and will offer you the opportunity to make a statement. He or she will pronounce your sentence orally. Either on the day of sentencing or within a few days, the judge will issue a written "Judgment and Commitment Order" setting out your sentence in writing.
Is there any "good time" or parole in the federal system?
Parole has been abolished in the federal system. An inmate who is serving a sentence of imprisonment of more than one year may receive 54 days per year of "good time" credit for exemplary compliance with prison rules.
What are the federal sentencing guidelines and how will they apply to my case?
In 1987, the United States Sentencing Guidelines went into effect. The guidelines were drafted by the United States Sentencing Commission, a body created by Congress to establish a uniform sentencing system for federal criminal cases. The guidelines are essentially a set of rules used to calculate two numbers -- offense level and criminal history. The offense level is a number intended to correlate to the seriousness of an offense. For example, a fraud crime causing a loss of $100,000 will generally result in a higher offense level than a fraud crime causing a $10,000 loss. Similarly, the offense level in a drug case generally increases as the weight of the drugs involved increases. The second number, criminal history, is based upon the number of prior convictions. For example, a person without any prior convictions normally will be in criminal history category I. To determine the applicable guideline sentencing range, the judge consults a table. The sentencing ranges on the table are expressed in months (87-108 months, for example). Generally, as the offense level and criminal history category go up, the applicable sentence increases. Prior to January 12, 2005, the guidelines were mandatory -- that is, absent extraordinary circumstances, a judge had to impose a sentence within the applicable sentencing range. Since the United States Supreme Court decided the case of United States v. Booker, the guidelines are now advisory only. In other words, a judge may now impose any sentence, whether within the applicable guideline range or not, that is within the parameters set by statute. It is impossible for anyone to predict with certainty either the guideline range that may apply or the sentence a judge may impose in any given case.
What are mandatory minimums?
Mandatory minimums are sentencing laws that provide for automatic prison terms for certain crimes. As the name suggests, these automatic prison terms are "mandatory," meaning that the judge cannot impose a lower sentence, except under very limited circumstances. When a mandatory minimum applies, the judge can only give a lesser sentence if the prosecution files a motion authorizing the court to do so or, in a drug case, if the defendant is essentially a first-time offender who meets other specific criteria.
What does it mean to appeal my case?
Unless knowingly, intelligently and voluntarily waived, a defendant has a Constitutional right to appeal a criminal conviction and/ or sentence to the appropriate court of appeals. When a defendant appeals, he or she is known as the "Appellant" and the prosecution is referred to as the "Appellee". An appeal is limited to the "record" on appeal. Generally, the record consists of all documents filed in a particular case (for example, motions, briefs, orders and exhibits) as well as transcripts or tapes of all proceedings (such as motions, hearings, trial and sentencing). It is usually not possible to supplement the record on appeal with additional evidence. In a criminal appeal, the Appellant's lawyer will review the record to determine whether errors were made in the case and will address those errors in the Appellant's brief. The Appellee will then file a brief in response. The Appellant then may choose to file a reply brief. Once briefing is complete, the court of appeals will either decide the case on the basis of the briefs alone, or may set the case for oral argument. At oral argument, the lawyers have the opportunity to make their arguments directly to the appellate judges. Once briefing is complete and the court has heard oral arguments, it will consider the case and issue an opinion. The appellate process is lengthy and may take as long as a year or more.
I have been sentenced in a federal court. How long do I have to appeal?
If you wish to appeal, a notice of appeal must be filed within fourteen days after the judgment is entered. The judgment is usually entered in a criminal case at the time of the sentencing hearing or shortly thereafter.
* FAQs are for informational purposes only. They do not constitute legal advice or establish an attorney-client relationship.