A Veteran's Guide to Criminal Law

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A Veteran's Guide to Criminal Law

Unfortunately, some veterans will experience trouble with criminal law. There may be a number of reasons for this including Post-Traumatic Stress Disorder, Traumatic Brian Injury, or other causes. This guide discusses the different considerations that veterans who are facing criminal charges and conviction must confront. In particular, this guide focuses on the criminal process and sentencing considerations that are specially applicable to veterans and military members, the impact of conviction on a veteran's benefits (including the impact on families), and post-incarceration assistance.

Table of Contents:

The Police Have Taken Me Into Custody, What Do I Do?
Should I Talk to The Police Without an Attorney?
How Do I Get an Attorney?
How Long Can The Government Detain Me Before Charging Me With a Crime?
The Police Say I Committed a Crime, What Does This Mean?
Will I Be Charged Under State or Federal Law?
Booking and Bail, What Are They?
What Is an Arraignment and How Does It Work?
What Is a Plea Bargain?
What Is a Preliminary Hearing or Grand Jury Indictment?
What Are Pre-Trial Motions?
What Happens at Trial?
How Does Sentencing Work?
Will The Judge take Into Consideration My Service as a Veteran When Setting My Sentence?
How Do Appeals Work?
Will a Criminal Conviction Impact My VA Benefits?
When I Get Out of Prison, What Resources Are Available to Help Me Get Back On My Feet?

The police have taken me into custody, what do I do?

If the police have taken you into custody you should know about your rights. To start, just because you are in police custody does not mean you have been arrested. The difference between arrest and detention is important because once the police have officially "arrested" you they must have what is called probable cause under the Fourth Amendment. Probable cause requires a reasonable belief that a person has committed a crime.

It is often the case that the police do not have probable cause to arrest you, and have merely taken you into custody to question you and thereby gain probable cause to arrest you. You have no legal obligation to answer the police's questions; therefore, the first thing you should always ask the police after being taken into custody is whether you are free to go or under arrest. This will ensure that the clock starts running on the amount of time that the police can detain you. While the rule varies from state to state, the police cannot generally hold you in detention for more than 24 hours. After this you will usually be considered under arrest and the police will have to show probable cause.

Should I talk to the police without an attorney?

No. You should always consult an attorney before speaking to the police if you are a suspect in a crime, or you participated in the crime. You have a constitutional right to an attorney. While it may seem like it will help you to speak to the police when they are asking you questions, it almost never does. The police are paid to develop evidence. There sole purpose in asking you questions is to get you to provide them with evidence that they can use against you. Even if the police relay all of the information they already know and then tell you that if you speak to them it will help you during sentencing because you cooperated, you should not talk to the police. You should wait for your attorney. Failing to speak to the police before your lawyer arrives will not hurt your case.

However, if you are a witness to a crime you should not hesitate to tell the police what you saw as the information you provide may very well help them solve a crime.

For an informative video concerning the legal consequences of talking to the police click here.

How do I get an attorney?

You have a right to legal representation if you have been arrested and charged with a crime for which you can be incarcerated. If you cannot afford an attorney one must be provided to you. If your financial circumstances are such that you can afford to pay the attorney, you will have to bear the cost of his/her services; however, if you cannot pay, the court will provide the attorney free of charge. To get an attorney all you need to do is inform the police that you would like an attorney. Tell the police, "Officer, I am going to exercise my Fifth Amendment right to remain silent. I would like an attorney at this time."

At this point you should not say anything to the police until your attorney has arrived. Anything you say can and will be used against you in court; therefore, you should not attempt to talk yourself out of the situation, or even make small talk with the police. Simply remain silent, and
wait for your attorney.

To search for an attorney in your area click here. To find out more about how lawyers play a role in the legal system and how they can help you click here.

How long can the government detain me before charging me with a crime?

The length of time that the police may detain you without charging you varies by state. The general idea behind the police being able to detain you prior to officially arresting you is that they need time to investigate the incident once they arrive at the scene. The length of a detention will vary depending on the how long the police reasonably need to investigate.

Detentions are voluntary unless you verbally ask to leave. You should always ask the officer whether you are free to go or whether you are being placed under arrest. If the police tell you that you may go, leave the scene. If you remain, the detention will be voluntary and legal.

To watch a video about detainment click here.

The police say I committed a crime, what does this mean?

If you have been arrested, there are several possibilities. The fact that you were arrested says that the police believe that you have committed a crime or misdemeanor. The police are responsible for maintaining peace and order and serve as one means of collecting evidence for the government. The police do not, however, have the power to charge you with a crime, only the Governments designated attorneys (prosecutors) may do that.

If the Prosecutor decides that you have committed a crime and that there is enough evidence to convict you, you will be charged with a crime. The particular crime you are charged with will depend on the particular criminal code under which you are being charged. Each state and the federal government have a written code of crimes. The Prosecutor will examine this code and decide on what crimes to charge you with.

Will I be charged under State or Federal law?

The criminal system is designed to punish and rehabilitate those who break the law. There are both federal and state crimes, and depending on the nature of your offense, you will be charged accordingly.

The federal criminal system accounts for a minority of the criminal convictions in the U.S. and deals only with crimes that are federal in nature. These crimes include such things as assaulting a federal officer, interstate trafficking of drugs or weapons, mail theft, and tax fraud.

In contrast to the federal criminal system, the state system accounts for the majority of criminal convictions in the U.S. Each state has a criminal code that lists out each of the crimes in that state and proscribes the penalties for those crimes.

Therefore, where you are accused of committing a crime and the exact nature of the crime will determine where you will be charged.

Booking and bail, what are they?

Booking occurs after you have been arrested refers to the process used by police to enter you into the jail system. The police will ask you personal identification information, take fingerprints and photographs, check your criminal history, take possession of your personal items, and place you in a holding cell. If your crime is minor, the police may simply issue you a citation and instruct you to appear in court rather than place you in a holding cell.

Once the booking process is finished and you have been placed in a holding cell, the next stage of the process is determining whether you must be held until your court date (arraignment) or released. The court may decide that you are not a flight risk and will therefore offer you bail. Bail is either money or property that is offered up as a guarantee that you will go to your appointed court date. If you do not show up to court, the court will keep your bail and issue an arrest warrant for you.

For more about the bail process and how your amount of bail is determined click here.

What is an arraignment and how does it work?

Once you have been officially arrested you must be arraigned. Arraignment refers to the court hearing where you will find out what, if anything, you are being charged with, and where you will be given an opportunity to plead. You will also be asked whether you need a court appointed attorney, and informed of any future court dates. In federal courts you must be arraigned within 48 hours of your arrest. However, in some state courts this time requirement is only 24 hours (this can often be extended to 72 hours with cause).

The federal system an arraignment is broken down into two parts. First, the Initial Arraignment will occur and you will be told what the charges are against you, and of your right to an attorney. The second phase is where you will be asked to enter a plea. A plea is your response to the charges against you. You can plead guilty, or not guilty, and in some states there may be other plea options.

Many state courts combine the arraignment into one hearing so that you will have the charges read to you and will be asked to plead then and there. You should work closely with your attorney in deciding how to plead.

For more on the arraignment process click here.

What is a plea bargain?

A plea bargain is a deal that is made between you and the government after you have been charged with a crime. 90 percent of all cases in the U.S. end in a plea bargain.
There are three main types of plea bargains:

Charge Bargains: Where the defendant pleads guilty to a lesser charge in exchange for the prosecution dropping the greater charges.
Sentence Bargains: Where the defendant pleads guilty to some or all of the charges against him/her in exchange for a lighter sentence. This particular type of plea bargain is more rare, and subject to the judge's discretion.
Fact Bargains: Where the defendant stipulates to certain facts in a case in exchange for other facts not coming in. This is the least common type of plea bargain and is rarely used.

For more about plea-bargains click here.

What is a preliminary hearing or grand jury indictment?

The Preliminary hearing is the next stage of the trial process where the judge will hear the evidence that each side has and determine whether the government has enough evidence to bring you to trial. In some states, a preliminary hearing will only be held for felony offenses, while in others, a grand jury of your peers is used to decide whether there is enough evidence to bring you to trial.

What are pre-trial motions?

Pre-Trail motions are requests that are made to the court concerning your case that are done after the Preliminary Hearing but before the actual trial. Each side files these motions in an attempt to keep certain evidence or witnesses out of the trial, and set the boundaries of the trial.

For more on Pre-Trial Motions click here.

What happens at trial?

The trial is where all of the evidence for and against you that made it through the Pre-Trail phase will be presented to a judge or jury. Whether or not you have a jury or just a judge will depend upon whether you ask for a jury or not. Sometimes, a strategic decision is made to try a case before a judge only.
There are six main phases of the trial:
Choosing the jury: Your attorney and the prosecution will carefully select jurors who are unbiased from a pool of citizens. This phase will not occur if you have a non-jury trial.
Opening Statements: Here your attorney will lay the groundwork for the evidence that he/she will present in your defense, and will tell the jury or judge a condensed version of your side of the story.
Presentation of Witnesses, and Cross-Examination: Here the prosecution will present their witnesses and lay out there evidence against you. Your attorney will then have an opportunity to cross-examine these witnesses. Following this, you will be given an opportunity to present your own witnesses and evidence.
Closing Arguments: After all the evidence has been presented each side will give a closing argument advocating their side of the story and explaining to the jury or judge where the evidence presented fits in.
Jury Instruction: After closing arguments the judge will instruct the jury on the various laws they must consider. Just what is told to the jury will depend upon negotiations between the defense, prosecution, and the judge.
Jury Deliberations and Verdict: After retiring to the jury room, the jury will consider each side's arguments and come to a verdict. The jury may find you guilty, not guilty, or come back with no verdict because they could not agree. If this happens there will be a mistrial and your case will have to be tried again before a new jury.

For more about the trials click here.

How does sentencing work?

If you are found guilty by the jury or judge you will next move to the sentencing phase. There are a variety of different sentences that judges can impose. Some of these include: Fines, Incarceration, Probation, Restitution (payment to the victim), Community Service, and Drug and Alcohol Rehabilitation. In determining your sentence judges will take into consideration many factors such as the seriousness of your crime, your prior criminal history, the opinions of the prosecution and defense, among other things.

For more about sentencing considerations click here.
For more information about sentencing click here.
For information about the Three Strikes Sentencing Laws click here.

Will the judge take into consideration my service as a veteran when setting my sentence?

Probably not. Under the federal sentencing guidelines, most veterans will not be able to use their military service as evidence of a "good act" to be considered in sentencing by the court because the U.S. Sentencing Commission has expressly stated that evidence of prior military service is not normally relevant to sentencing a defendant under the federal guidelines. However, this statement by the Commission leaves open the possibility that "exceptional" military service records may be taken into consideration. Therefore, only a very select group of veterans will have any chance of having their military record come into play in a federal sentencing hearing.

State court systems may be more willing to take into consideration a veteran's military record, though, not many do. By and large, whether your military record is considered will depend on the particular judge in the case and whether that judge believes your veteran status is relevant to your criminal sentencing.

How do appeals work?

After you have been convicted and sentenced your last hope is the appeal process. Under this process, you may appeal your case to a higher court. However, you should understand that appeals are not simply another opportunity to argue your case, but rather they are for determining contested legal questions. Therefore, only your attorney will attend the appeals hearings. Appeals are not designed to allow you to challenge a jury's verdict, but rather to allow you to challenge the legality of particular things that happened at trail, such as rulings by the judge to allow certain evidence in. Usually, any major legal arguments that your attorney lost at the trial stage will be the subject of appeal.

For more about the appeals process click here.

Will a criminal conviction impact my VA benefits?

Sometimes. If a veteran is convicted of a crime it can negatively impact that veteran's ability to receive VA benefits. In particular, the nature of the crime can have a drastic impact on what benefits are available to a veteran and his/her family. Veterans who are serving jail time for misdemeanors may seek a VA Apportionment if their benefits will be taken away as a result of their conviction. Under this program, the VA will give some or all of the money taken from the veteran's benefits to the veteran's family. However, if the veteran has been convicted of a felony, VA Apportionment is not available.

VA Disability Compensation: If you are convicted of a felony and serve 60 or more days in prison your VA Disability Compensation will be reduced. If you have a rating of 20 percent or more, your compensation will be reduced to 10 percent. If you have a rating of 10 percent, your rating will be reduced to 5 percent. However, after you are released from prison your rating may be reinstated. It should also be noted that working in a halfway house, work release, or on parole does not count in the calculation of the 60 days and your benefits can continue.

VA Pension: The VA Pension program provides income to qualifying low-income veterans. However, if you are convicted of a crime and serve 61 days or more in prison, the program will stop paying you benefits. Once you are released you may reapply for the VA Pension.

VA Medical Care: The VA will not remove your right to medical care just because you have been convicted of a crime. However, while you are in prison you will only be able to receive medical care from the prison health care system because the VA may not provide healthcare services to a veteran while another government agency (the prison) has a duty to provide those services. Thus, when you are released from prison, you will be able to continue to receive VA healthcare.

VA Education Benefits: Education benefits are available to veterans serving prison time, but the type and amount of benefits will vary depending on the nature of your conviction. If you have been convicted of a felony, you may only receive education benefits for tuition and school supplies. However, if you are serving time for a non-felony, you may receive full education benefits.

IMPORTANT: The VA will reinstate your benefits after you are released from prison IF you notify the VA of that release within one year of getting out. For more information call toll-free 1-800-827-1000, or visit the VA website.

When I get out of prison, what resources are available to help me get back on my feet?

Getting out of prison after a long incarceration is a crucial period of time in the life of a veteran. The risk that a veteran will end up homeless, or commit new crimes is at a heightened level. Therefore the VA has set up a program to help veterans who are leaving prison get back on their feet called the Healthcare for Re-Entry Veteran's Program (HCRV). Under this program the VA will provide counseling and reintegration services to qualifying veterans. Veterans should also reference our guide A Homeless Veteran's Resource Guide and Salute Vets, a partnership between the 9th Circuit Public Defender, Florida and Community Legal Services of Mid-Florida's Veterans Project.

September 2016

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