Frequently Asked Questions If Accused of a Sex Crime

What should I do if I believe I am under investigation for a sex crime?

Speak to an attorney immediately, if you even suspect that you may be only under investigation for a sex crime. Quite often there is an initial investigation before formal charges are filed in order to gain as much information on you as possible. Remember, you don’t have any Miranda Rights because you haven’t been arrested yet. This is when most people fall into traps set by law enforcement which could potentially damage their case. Do not speak with anyone on the phone regarding the allegations, especially the alleged victim – police often employ sting calls where they record the conversation. Although some states require that both parties consent to such recordings, most states have exceptions to this law for conversations involving sexual abuse. Finally, be proactive and make arrangements for posting bail should you be arrested.

What should I do if I am arrested?

Until you have an attorney, do not speak to anyone. Exercise your right to not incriminate yourself. Do not answer any questions law enforcement poses to you. If arrested, your Miranda rights include the right to an attorney, and to a fair, speedy trial. Absolutely do not try to “explain away” the allegations. Simply tell the police that the allegations are absurd, and that you feel you should speak with an attorney. Do not fall for the “well, if you’re innocent then why not talk to us?,” or “things will go better for you of you speak with us.” Under no circumstances should you say anything to anyone except your attorney regarding the allegations.

How do I post bail?

Depending upon the jurisdiction in which you are arrested, at some point in time you will go before a judge who will set your bail amount.  Traditionally, bail is some form of property deposited or pledged to a court in order to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and be guilty of the crime of failure to appear). Bail may be set as “straight bail,” which means that the entire bail amount must be paid, or as “percentage bail,” which means that you can pay a percentage (usually 10%) of the bail amount to the court in order to be released. If your bail is set as “straight bail,” you’ll likely need the assistance of a bail bondsman who will pay the court the entire bail amount, and then charge you a fee which will be a percentage of the bail, which is usually 5-10%.  If you cannot afford to post bail, you should ask your attorney to schedule a bail reduction hearing in front of the judge in charge of your case.

Will I be released without posting bail?

Although unlikely in cases involving sexual abuse, it is possible to obtain an O.R release. An “O.R.” release means that the court agrees to let you out of custody on your own recognizance without the need to post bail. This can sometimes be arranged by your lawyer to eliminate costly fees and save you money.

Where can I get a copy of the police report?

The police are not initially required to release their reports. However, we can often convince them to turn the reports over to us. Also, the investigating officer can be asked for information about the nature of the charges as well as any evidence they may have. At some point in the process, however, the State is legally required to give your attorney what is called “discovery evidence,” which will include all of your arrest and charging documents.

Who makes the decision whether to press charges?

Only the prosecuting attorney’s office has the authority to bring or “press” criminal charges. Many victims of crimes believe they have the power to “press” or “drop” charges. This is not true. Although a victim cannot drop charges, they can (and often do) influence the prosecutor’s decisions. It is also a common misconception that the police file charges. This also is not true. The police conduct an investigation during which time they collect as much as “evidence” as possible. This evidence is then submitted to the prosecuting attorney’s office which then makes the decision as to whether an arrest warrant will be issued.

What is the difference between a felony and a misdemeanor?

The term felony is used in common law systems for very serious crimes, whereas misdemeanors are considered to be less serious offenses. Misdemeanors carry a maximum possible sentence of up to one year in county jail. Felonies can result in state prison for at least a year and potentially much longer depending on the charge. Some sex crimes can be prosecuted as either a misdemeanor or a felony depending on the circumstances. It is strongly recommended that you always use an experienced criminal attorney and never defend yourself in a criminal trial. There are countless legal traps and loopholes that can result in unfair convictions and severe sentences.

What is the difference between Federal Court, Superior Court and Juvenile Court?

Federal Court: Any court of the national government in a country that has a federal system such as that of the United States (United States federal courts) or to a particular federal court, such as the United States district courts.

Superior Court: The Superior Courts in each state have the general jurisdiction to hear and decide any civil or criminal action, which is not specially designated to be heard in some other court or before a government agency. Most states have a separate Superior Court in each county.

Juvenile Court: A juvenile court or young offender court is a court of law having special authority to try and pass judgments for crimes committed by children or adolescents who have not attained the age of majority. In most modern legal systems, crimes committed by children and minors are treated differently and deferentially regarding the same crimes committed by adults.

Should I just have the court appoint me a public defender?

Most people do not realize that a public defender is not always free. Depending on the circumstances, you may be required to pay for the defense. Also, public defenders are often overworked and cannot always devote the time your case may require. The ideal situation is to hire a private attorney whom you feel comfortable with. Do not settle for a public defender if you can hire a private attorney. How long will my case take? The length of trials varies greatly. In criminal prosecutions, the defendant has the right to demand a trial within a short time since to be held in jail without trial is a violation of due process. Each state has its own set time an accused person may be held before trial charges must be dismissed and the defendant is released. However, defendants often waive the right to a speedy trial in order to prepare a stronger defense, especially if the defendant is already out on bail. What will happen at my first appearance? Your first court appearance after being charged with a crime is called the arraignment. During an arraignment, you will be formally notified of the charges against you and you will enter a plea. Also, your lawyer will be provided a copy of the complaint as well as any discovery (police reports and documents related to the case).

What is a preliminary hearing?

A preliminary hearing is when the judge determines whether or not there is probable cause to send a case to a higher court for trial. It is also used to determine whether, and to what extent, criminal charges and civil cause of actions will be heard, what evidence will be admitted, and what else must be done (before a case can proceed). In most instances, very little evidence is required in order for the charges to be “held over” for further proceedings, although some charges might be dismissed at this level. Unlike in most other cases, in sex crime cases the preliminary hearing can be critical because of 6th amendment limitations regarding such charges. In short, if your attorney decides to cross-examine the alleged victim, it is possible that this could be the only such opportunity that will be afforded.

What is plea-bargaining?

Plea bargaining is a process whereby attorneys representing both sides of a case negotiates to obtain a plea. Typically, the result of a plea bargain is an agreement for you to plead guilty to a particular charge or set of charges in exchange for a set of terms. This may include charging the defendant with a lesser charge, or agreeing to a lesser punishment for the same charge. Plea bargains involving sex crimes rarely occur at early stages of the court process. Due to the seriousness of such charges, prosecutors often wait until shortly before trial or even the day of trial to offer a plea bargain. During this intervening time, the prosecutor will weigh the strength of his or her case, speak with the alleged victim, and consult with the top prosecuting attorney. If a plea is offered, the decision to take it is solely up to you, and not your attorney. Should you decide to accept a plea where charges will be “dropped,” be sure to ask your attorney about the difference between charges being “withdrawn” versus charges being “nol prossed” – there is a significant difference which can control the outcome of any future expungement requests. Finally, please understand that once a plea is entered, it is highly unlikely that it will be rescinded.

Will you try to plea-bargain my case?

Our first goal is to always try and get your case dropped altogether. If that is not possible, we have two options to pursue. Either we will agree to a negotiated resolution – a plea bargain, or it will go to trial. In some cases there is no decision to make – the prosecutor will make no offer. In cases where a plea is offered, the defendant and his or her attorney must thoroughly weigh the costs and benefits of a plea. Presently, prosecutors are more apt to offer a plea that involves sexual registration. The seriousness of being labeled as a sex offender cannot be overstated. Therefore, extreme consideration must be given to such a plea bargain, even if it does not involve jail time. Should you hire PDG, Attorney Tom Pavlinic will help you make such a decision should you be offered a plea. In some cases, rejecting the first plea offer will lead to a better offer later on. If a suitable plea is not offered, we will happily proceed to trial to defend your freedom and good name.

What happens at trial?

In a trial, the two opposing sides come together to dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute.

Each party is entitled to an opening statement by his/her attorney. After the opening statements, the evidence of the case is presented first by the prosecution. The defense then presents its evidence. Then the prosecution and defense are allowed to present a rebuttal to each other’s arguments. At the conclusion of the presentation of all evidence, each attorney may make a final argument.

If it is a jury trial, the jury retires to the jury room and discusses the facts of the case. They will then come to a conclusion and present their decision to the judge. If there is no jury, the judge will determine legal issues and make a judgment. What happens at sentencing? During sentencing, the judge decides a punishment or sentence the accused must undergo. The sentence generally involves a decree of imprisonment, a fine and/or other punishments.

Are there possible consequences beyond a sentence to custody time or a fine?

There could be possible consequences beyond a sentence. Possible consequences include but are not limited to the following:

  • Loss of the right to vote
  • Loss of the right to possess a firearm
  • Loss of the right to associate with known criminals
  • Sex offender registration
  • Geographical restrictions
  • Augmented penalties for future convictions

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