When a person is arrested, they will either be taken to the local police station or a federal agency, and will be issued a uniform. The person will be searched and their possessions will be taken from them. They will be put in a holding cell with many other people and will no longer be free to come and go as they please. They will be fingerprinted, photographed, and asked to give a statement.
Whether a person was arrested and taken to federal or state court, there will always be the presentment. The presentment is often to a magistrate judge, even in state court, but it could be a sitting district court judge or a superior court judge depending on the day that the person was arrested and when they were seen.
A person will be presented with the charges, meaning the government will present a document that will provide notice of what they allege that the person has done. At that time, they will be appointed an attorney, but even if they are appointed an attorney, it does not mean that they have to keep that person as their lawyer. They can eventually hire their own attorney if they wish to do so.
A person will be given an opportunity to enter a preliminary plea and bail determination will be set. The government will decide whether the person will be released on their personal recognizance, held at a jail pending trial, or something in between, such as an ankle bracelet or another type of monitoring. Determinations will be made as to whether they will be required to drug test, stay away from a certain location, or stay away from a certain facility, and all of these determinations will be made after the arrest and when they are initially processed by the courts.
Once a person asserts their right to counsel and says that they do not want to answer any questions until they have a lawyer present, then they will have an opportunity to get an attorney. That does not stop the criminal investigation process, so if the FBI or the local police decide that they have enough evidence to go to a judge to get a warrant for their arrest or to make a probable cause arrest, they can do it.
It does not stop the process, but it does freeze a person’s ability not to say anything that could be used against them. A person cannot stop the government from moving forward, but the person can at least stop themselves from helping the government make a conviction.
A continuance is an extension of time. It means that the court date, whether it is a trial, status hearing, motion hearing, or bail determination hearing, is moved to another date either at the request of the government, the defense, or the court. There are times when defendants may want to have a continuance.
For example, if a person is going to have a detention hearing to determine whether the person is going to be released and the government has requested that the person is held pending trial, that detention hearing is going to happen pretty quickly. Sometimes it is in the interest of the defendant to put the hearing off so that their attorney can investigate the case more, get to know the defendant, verify their employment, and present addresses where they could live if the judge were to release them.
Delaying a criminal case is always within the defendant’s favor. Delaying a criminal case is never beneficial to the government. Criminal cases, unlike wine, do not age better with time; they get worse. Memories fade, people mix things up, and stories change, so it is in the best interest of the government to move as quickly as they possibly can. For the defense, there are times when it is better to slow things down, pick apart the facts, and make sure that every stone has been unturned.
A person who is considered a risk of flight, but not a substantial enough risk to warrant incarceration, may be asked to post a high bond or may be asked to wear an electronic monitoring device during the pre-trial period. A person may be asked to drug test or check in with a pre-trial services officer every so often to make sure that they are not committing any new offenses. All of that information is helpful to an attorney to present a clearer picture of who the client is to the judge.
The worst thing a defendant can do is try to go to the authorities and explain their side. Many people think that they can simply talk with the police, FBI, DEA, SEC investigators, or Office of the Inspector General officials and explain their side of the story without a lawyer and that this will make it all go away. If someone has been contacted by law enforcement and they are indicating that they are looking at that person for a criminal offense, they have likely already decided that the person should be charged.
Nothing that person could say without an attorney present will help. The goal of law enforcement at this stage is to get the defendant to make statements that can help the authorities prepare a case against them. One of the worst things a criminal defendant can do is go down to the police station or the FBI field office and give a statement without representation, without consulting with an attorney, and think that their explanation is going to make it all go away because that almost never happens. In fact, most of the time it helps strengthen the government’s case against the person.
To help to avoid a mistake, a person should ask for a lawyer. There is nothing wrong with asking for a lawyer. Once a person asserts their Fifth and Sixth Amendment rights to have counsel present, the interrogation should end. The Constitution guarantees a person the right to counsel in a criminal case and does not make a person guilty to ask for an attorney. Our criminal system is a two-party adversarial system.
The government has many lawyers, investigators, and law enforcement officials on their side working as hard as they can. The system only works properly if defendants have the same thing. A criminal defendant should never handicap themselves by going to battle with the government without having adequate counsel.