Below you will find the answers to questions that care commonly asked by individuals facing sex crime charges. If you have additional questions, feel free to contact us 24/7.
Who makes the decision to “press” or dismiss charges?
Only the prosecuting attorney’s office has the authority to bring or “press” criminal charges. Many alleged victims of sexual assault believe they have the power to “press” charges. Generally, this is not true. They can make a complaint, but whether charges are filed is left to the discretion of the prosecuting attorney’s office. 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.
Although adult alleged victims cannot technically drop charges, they can (and often do) influence the prosecutor’s decisions. If however the alleged victim is a minor, his or her parents or legal guardians will have little influence over the prosecutor’s decisions. Generally speaking, charges involving a minor are dismissed by prosecutors for two reasons: 1) it is believed that the State’s case is not strong enough to proceed to trial, or 2) it is believed that the minor alleged victim could not competently testify at trial.
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.
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 money or 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). 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. If possible, you should use property as collateral to assure that you have enough financial resources to fund your legal defense. Although unlikely in cases involving child 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.
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. It’s common for individuals to be hesitant to pay attorneys the fees that sex crime cases demand, but if you are convicted your options become very limited. If the attorney has the legal experience necessary to overcome such charges, it’s better to pay him or her to prevent a conviction than to handle your post-conviction relief case after you’ve been convicted. We occasionally receive calls from individuals in prison who did the opposite.
How long will my case take?
It is not uncommon for sexual assault cases to last in excess of one year. At your arraignment or shortly thereafter you will be given a tentative schedule of when your trial will begin. If you are incarcerated, the time until your trial will typically be shorter than if you are out on bail due to “speedy trial” laws which protect a defendant’s due process rights. 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, in most jurisdictions it is very common for trials to be postponed at least once. The postponement(s) may be requested by the State if they show sufficient cause, or by the Defense for various reasons. Defendants can 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. If a suitable plea is not offered, we will eagerly 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
CONTACT US SHOULD YOU HAVE ADDITIONAL QUESTIONS
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