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  • Bonds, Pretrial Release & Sentencing Guidelines – The Many Differences Between State and Federal Court

    5/15/20128:48:42 PM Link 0 comments | Add comment

    arrest, attorney, bail, bond, criminal, Criminal Defense Lawyer, criminal law, criminal procedure, federal court, felony, pretrial release, Prosecution

     

    Although the general concepts and theories for prosecuting or defending a criminal case are the same, criminal procedure in federal court is significantly different than in state court.  There are different rules on case progression, different rules regarding pretrial release and more restrictive guidelines for criminal sentencing.

    Every state has both state courts and their local federal court.  Often times there are overlap between the jurisdictions.  In other words, it is possible to be prosecuted in both state and federal court for the same criminal act.  This is one of the most difficult things to explain to a new client, as most people have an incorrect understanding of what double jeopardy is in a criminal case. 

    The states that make up the United States of America are all sovereign states; they have complete power over their own state matters, and thus control over prosecutions for criminal offenses which occur within their borders.  The exception to this is when the crime committed is a violation of federal law.  In this situation, it is possible for there to be criminal consequences at both the state and federal level.  The reason punishment for criminal conduct can take place in both state and federal court without triggering the double jeopardy clause is because state governments and the federal government are considered to be separate sovereigns, having separate sovereign powers.

    Another misconception is that federal court trumps state court, or that federal court is more serious.  State court prosecutions are just as serious as federal court prosecutions.  In fact, most murder cases are tried in state court, as most homicides do not involve an issue of federal law.  You see most of the overlap between state and federal prosecutions in cases involving gun charges or drug charges.

    Pretrial release is also a way in which federal court differs from Nebraska state court.  Typically, if someone is charged with an offense in state court, a bond will be set at their first court appearance.  If the individual is able to post bond, then that person will be released pending litigation of their criminal charges.  In other words, the person gets to live at home while they are being prosecuted.  In federal court there is pretrial release; however, there are no bonds.  Either you get pretrial release or you don’t.  Instead of a bond setting hearing, in federal court there is a detention hearing.  The magistrate judge either authorizes pretrial release or he doesn’t.

    It is true that the federal sentencing guidelines often result in harsher punishments being given out at the federal level, but felony charges are serious whether charged in state or federal court.  When facing criminal prosecution, it is important to take into account potential consequences at both the state and federal level, as well as discuss all options with your attorney. 

     

  • No Contest Plea vs. Guilty Plea Revisited

    12/30/20112:08:27 PM Link 0 comments | Add comment

    accident, attorney, car accident, civil, claim, Criminal Defense, criminal law, criminal procedure, guilty plea, no contest

     

    We have discussed this topic before; however, lately our office has received multiple emails on the subject so we are going to revisit it.

    In a criminal case there are typically four options for the defendant when entering their plea to the charges in the information filed by the prosecution: (1) Not Guilty, (2) Guilty, (3) No Contest and (4) Not Guilty by Reason of Insanity.

    The Not Guilty plea is pretty self explanatory; if you plead not guilty you are saying you did not commit the criminal offenses alleged and that you wish to have your case heard at trial.

    The Guilty plea is also pretty straight forward.  If you plead guilty, you are stating that you are guilty of the offenses charged; that you do not wish to have your case heard by a judge or jury at trial; and that you are ready to receive your punishment.

    The No Contest or Nolo Contendere plea is where most people get confused.  A No Contest plea is treated the same as a Guilty plea for purposes of sentencing.  In other words, if you plead No Contest, the judge will treat you as if you have pled Guilty.  The only difference is that a No Contest Plea cannot be used against you in a separate proceeding, such as a civil lawsuit based on the same set of facts.  You most often see No Contest pleas when there is an issue of restitution in the case, such as damage to property, payment of medical bills, etc. 

    For example, if someone is charged with Willful Reckless Driving, and there was a car accident that resulted from the alleged criminal conduct, the person is not only facing criminal prosecution for the driving offense, but also potential civil liability from the person(s) who was/were harmed (i.e. the person they hit might sue them for money).  This is where the individual’s criminal defense lawyer will advise their client to plead No Contest instead of Guilty, if a plea agreement is reached.  The reason is that later on if their client is sued by the injured party who was hit during the accident, the injured party will not be able to use the No Contest plea against the individual they are suing for damages.

     

     

  • Criminal Case Prosecutions in Omaha, Nebraska

    11/21/201110:53:17 AM Link 0 comments | Add comment

    criminal, criminal defense, criminal law, criminal procedure, Douglas County Attorney, Driving Under the Influence, DUI, felony, Omaha City Prosecutor, Prosecution, trial, U.S. Attorney

     

    There are three offices in Omaha that prosecute crimes: (1) The Omaha City Prosecutor's Office; (2) The Douglas County Attorney's Office and (3) The U.S. Attorney's Office.  The Omaha City Prosecutor's Office handles prosecution of all misdemeanor offenses that are committed in Omaha or Douglas County (i.e. DUI's, misdemeanor assaults, traffic offenses, etc.).  The Douglas County Attorney's Office handles the prosecution of all felony offenses that occur within Douglas County, as well as all domestic violence crimes (i.e. murder, robbery, drug possession, felony DUI, domestic assault, etc.).  The U.S. Attorney's Office handles the prosecution of all federal crimes that take place within the District of Nebraska.

     

    Often times, there is an overlap in jurisdiction between the Douglas County Attorney and the U.S. Attorney.  This happens most often in drug trafficking cases.  If you are being prosecuted for a misdemeanor driving under the influence charge or a simple assault and battery in Omaha, Nebraska, you are likely being prosecuted by the City Prosecutor's Office.  If you are charged with a felony offense such as felony driving under the influence, felony theft, drug possession or first degree assault, then you are likely being prosecuted by the Douglas County Attorney's Office.  If your criminal charges involve violation of a federal statute or transporting illegal items across state lines (most often guns or drugs), then you will be dealing with the U.S. Attorney's Office.

     

  • What Should I Look For in a Criminal Defense Attorney?

    8/1/20118:43:40 PM Link 0 comments | Add comment

    arrest, Criminal Defense Attorney, Criminal Defense Lawyer, criminal law, criminal procedure, DUI

     

    I have been seeing this question a lot lately.  Probably the best answer is choose someone you trust and are comfortable with.  Of course you want to look for a lawyer that has experience and is familiar both with the courthouse and your specific type of case.  But once you narrow the field, the best idea is to meet with prospective attorneys and decide which one you will be most comfortable with.  Beside the outcome, try to think of what will be most important to you during the pendency of your case (i.e. promptly returning phone calls, face-to-face time, demeanor, price, etc.).  Then ask the criminal lawyers you meet with questions based on the criteria you have developed.  Again, the bottom line is that when you are facing prosecution on criminal charges you will be nervous enough as is.  You need to be able to trust your attorney and feel comfortable that he or she is doing their best to represent your interests.

     

     

  • What is the difference between a No Contest Plea and a Guilty Plea?

    1/26/20118:15:22 AM Link 0 comments | Add comment

    car accident, civil, criminal, Criminal Defense Lawyer, criminal procedure, guilty plea, no contest

    Most people truly do not understand the difference between a guilty plea and a no contest plea.  The biggest difference has to do with civil liability.  A Guilty Plea to a criminal charge can be used against you in a civil proceeding later on down the road, whereas a No Contest Plea cannot.  For instance, if you throw a brick through a person’s window, you will be criminally prosecuted for Damage to Property or Criminal Mischief.  At the same time, the person who owns the window may sue you civilly requesting payment for the damage you caused to their window.  If you plead no contest in criminal court, the person with the broken window will have to put on evidence in the civil case proving that you broke the window and cannot use the criminal case against you in court.  If you plead guilty in criminal court, the person with the broken window can use the guilty plea against you in the civil lawsuit to prove liability.  If you plan on entering a plea in accordance with a plea agreement in a criminal case, and you are charged with a criminal offense that could eventually lead to a civil lawsuit (i.e. assault, damage to property, car accident, theft, embezzlement, etc.), you will want to enter a plea of no contest instead of guilty whenever possible.

  • Jury Trial vs. Bench Trial

    1/13/20118:50:32 PM Link 0 comments | Add comment

    attorney, criminal, criminal procedure, jury, lawyer, trial

     

    Am I entitled to a Jury Trial?
    When you are charged with a criminal offense, you typically have two options, trial or plea. You can either proclaim your innocence and take your chances at trial; or your criminal lawyer can work a plea agreement with the prosecution, and you can enter a plea of guilty or no contest in accordance with the plea agreement. If you are charged with a criminal offense which is punishable by more than six months in jail, you are entitled to a trial by jury. 
     
     
    What is a Bench Trial?
    The alternative to a jury trial is a bench trial. A bench trial is a trial to the judge. In a jury trial the judge will determine any questions of law and the jury will decide all issues of fact. In other words, the judge decides what evidence is allowed at trial and the jury decides whether or not you are guilty. 
    In a bench trial, there is no jury. It is the judge’s job to decide all issues. In a bench trial the judge still decides issues of law such as evidence and procedure; however, the judge also makes all factual determinations. There are some situations in which there is no right to a jury trial (i.e. misdemeanor crimes that are not punishable by more than six months in jail, juvenile proceedings, etc.).
     
     
    Should I Have a Jury Trial?
    Whether or not you should exercise your right to a jury trial depends greatly on the facts of your criminal case. There can be advantages to having a judge determine your guilt in a criminal trial; however, in most situations a jury trial is preferred when available. One reason for this is that jury verdicts in criminal trials must be unanimous (for a guilty verdict to be entered every single juror must agree that you are guilty). It is usually easier to convince one person out of twelve, or one person out of six, that you are not guilty rather than one person out of one.  Either way, if you are currently facing criminal charges, discuss your options with your defense lawyer.  Whether you are on trial for a serious assault, drug charges or a DUI; whether or not it is in your best interests to proceed with a jury trial is something that should definitely be discussed with your lawyer.
     

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