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What to Do if You’ve Been Charged With a Criminal Offense

By
Daisy Rogozinsky
/
July 25, 2022
Last reviewed by
Boruch Burnham, Esq.
/
May 3, 2023

Being charged with a crime for the first time can be scary as you do not know what to expect next or the steps you should take. To help demystify the process, we put together this guide to what happens and what to do if you’ve been charged with a criminal offense.

Before we dive in, it is essential to distinguish between misdemeanor and felony offenses because there are many critical ways that criminal laws and procedures differ based on which one of those offenses are involved. Misdemeanor offenses are for less severe crimes with potential sentences of less than a year, typically served in county jail. In contrast, felonies carry possible prison sentences of a year and above. 

What happens after your arrest?   

A law enforcement officer may place you under arrest if they see you committing a crime, have probable cause to believe that you have committed a crime or have a warrant for your arrest. Once you are arrested, you will be booked, which involves being photographed, fingerprinted, and having your information recorded by a law enforcement officer. After you are booked, you will likely be incarcerated pending your arraignment. 

Note that in some cases and jurisdictions, primarily where minor offenses are involved, you may be issued a citation informing you of the charges against you and requiring that you appear in court at a specific date and time instead of being arrested and booked. 

Preliminary hearings and grand jury indictments

At a preliminary hearing, the prosecution will be required to establish that there is probable cause to believe that you have committed the crime you are being charged with and that the case should proceed to trial. Many states require that a preliminary hearing must be held for felony cases, and some states require one for misdemeanor cases as well. 

In some states, for more serious/felony offenses, a grand jury will be required to determine whether the prosecution has presented sufficient evidence to establish probable cause, after which the grand jury will issue an indictment, formally charging the defendant with the crime. 

Arraignments and bail hearings

Based on the jurisdiction and facts of the case, your arraignment may be held before or after the preliminary hearing or grand jury indictment.  

At the arraignment, you will be formally charged, advised of the charges against you, and informed of your constitutional rights, including your right to counsel. Because you have a right to counsel under the 6th Amendment whenever you are charged with a crime, regardless of whether it is a felony or misdemeanor, if you cannot afford an attorney, the court will appoint one for you.

You will also be asked to enter your plea at your arraignment. You may either plead guilty, not guilty or nolo contendere, which means “no contest” in Latin. A nolo contendere plea is a plea in which you neither admit nor deny the charges against you, but agree to be sentenced for the offense nonetheless. The advantage of this plea is that it avoids an admission of guilt, which could otherwise potentially be used against you in civil proceedings. 

Depending on the jurisdiction and the surrounding facts and circumstances of the case, your bail hearing may be conducted at the same time as the arraignment or scheduled for a later date. At a bail hearing, the judge will typically determine whether you are eligible for bail and, if so, what amount of bail will be required by considering several factors, such as your criminal history, flight risk, and the potential danger to the community of releasing you from custody. 

In some cases, if the offense is relatively minor and non-violent and the judge does not believe that you are a flight risk and that your release pending trial is unlikely to cause danger to the community, you may be released on your own recognizance, which means that you may be released without having to post bail pending your trial. 

Pre-trial discovery, motions, and hearings 

Pre-trial discovery is a process during which the prosecution and defense gather evidence, interview witnesses, take their statements, and disclose information to each other so that each side can adequately prepare for trial. 

The parties may also file pre-trial motions requesting that the judge rule on a variety of issues, such as whether specific evidence should be suppressed because it was obtained in violation of the defendant’s constitutional rights or that the case should be dismissed altogether because there is not enough evidence to go to trial, and these motions will generally be heard by and ruled on by the judge at pre-trial hearings.

Plea bargains

Plea bargains can be a great option to explore for getting your charges reduced or leniency in sentencing by agreeing to plead guilty. This saves the prosecution and government the time and resources of conducting a trial, and opposing you in any subsequent appeal proceedings. 

While the pre-trial phase is most commonly when the defense and prosecution will negotiate plea bargains, it should be emphasized that plea bargains can often be negotiated when law enforcement is still investigating the case and you have not been formally charged, as well as after you have been convicted but still have the option to appeal. 

Your trial, conviction, and sentencing 

You have a constitutional right to a trial by jury for all felonies, and usually also for misdemeanor cases that carry a sentence of at least six months (although you may waive your right to a jury trial and opt to be tried by the judge). You also have the right to decide whether you want to be physically present in the courtroom at the trial or testify on your own behalf. However, if you do decide to testify, then you will be subject to cross-examination by the prosecutor, whose questions you will have to answer fully and truthfully, and by testifying, you will be waiving your constitutional right against self-incrimination. 

After all the evidence is presented, the jury will deliberate and ultimately come to a determination of whether the evidentiary facts establish that you have committed the crime(s) you were charged with beyond a reasonable doubt. Although most states require a unanimous decision of 12 jurors, a few do not. Furthermore, some states have juries of less than 12 members in some cases, such as where the trial involves a misdemeanor offense. 

A conviction is the formal declaration of guilt by a judge or jury after a trial (or when you enter a guilty plea), at which point you will proceed to sentencing. Whereas the jury determines whether the defendant will be found guilty, the judge is responsible for imposing the sentence. Note that in addition to setting forth the time you will need to serve and/or the amount in fines you will be required to pay, a criminal sentence may:

  • Require that you attend rehabilitative programs for substance/alcohol abuse and undergo periodic drug testing. 
  • Require that you provide a certain number of hours of community service. 
  • Order that you pay restitution to others for losses and damages you caused them in committing the crime(s). 
  • Place you under house arrest and have your physical location electronically monitored.  
  • Have your driver’s license suspended. 

It is important to note that there are several reasons for which your sentence could be reduced after you start serving it, including:

  • Becoming a cooperating witness or testifying against another individual in exchange for leniency.
  • Petitioning the court for a sentence reduction or early release on the grounds of compassionate release, used for defendants who are highly advanced in age and/or terminally ill.
  • Using second-look sentencing, which is a mechanism used by courts to review and modify individual sentences after the defendant has served a certain amount of time. This can be for a number of reasons, such as good behavior, participating in rehabilitative programs during their incarceration, etc.

Appealing your sentence 

Your right to appeal a criminal conviction is guaranteed under the 6th Amendment. Based on the jurisdiction or the nature of the crime, you may even be entitled to more than one level of appeal. That is, even if the appellate court affirms the trial court’s decisions, you can have the appellate court’s ruling reviewed by a higher court. 

General Tips 

  • Exercise your right to remain silent: The most critical thing to always be aware of is your right to remain silent. Under the 5th Amendment, an individual may not be compelled to testify against themselves. Furthermore, juries and judges are not allowed to draw any inference of guilt from your opting to remain silent. Law enforcement personnel will often try to get a suspect to confess or incriminate themselves by indicating that it would be in their best interests to cooperate or by saying that only the guilty have a reason to invoke their right to remain silent. In these instances, you should remind yourself that there is nothing to be gained by speaking to them, and that they mean it when they tell you that “anything you say can and will be used against you.” Any communications regarding your case with law enforcement, the prosecution, court personnel, etc., should be conducted via your attorney.  
  • Be transparent with your lawyer: In working with your attorney, remain honest so they can give you the best possible defense. The attorney-client privilege ensures that your attorney cannot disclose any information you share with them to a third party without your consent.
  • Document all information that may help your case: To help with your defense, take the time as early as you can to write down everything you remember about what took place, as well as the contact information of any possible witnesses who can corroborate your story.

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