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 issues that veterans face when dealing with criminal charges and convictions. In particular, this guide focuses on the criminal process and sentencing considerations that are 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?
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 "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 police will start off with no probable cause and then take you into custody and question you in the hope that your answers will give them the probable cause they need to arrest you. Remember, you have no legal obligation to answer the police's questions.
Instead, you should ask if you are free to leave. If the answer is yes, you should leave. If the answer is no, you should say “I want to speak to a lawyer” and say nothing else. If you are asked any questions, you should say “I want to speak to a lawyer.” If they will not answer “Am I free to leave?” with a yes or no, ask again or say “I want to speak to a lawyer.” Do not answer any questions or engage in any conversation, even small talk, until you have spoken to a lawyer.
This can be very stressful and it may feel tricky. Just remember this very simple rule: If you can leave, leave. If you have to stay, stay silent.
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 may not know whether you are a suspect, so it is always best to consult an attorney.
You have a constitutional right to an attorney. It might even seem like it will help you to speak to the police when they are asking you questions. It never does!
The police are trying to develop evidence. Their 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 later on, you should not talk to the police. You should wait for your attorney.
- Choosing not to speak to the police before your lawyer arrives will never hurt your case.
- The police can and will lie to you. They are allowed to do so and will use this tactic often.
- You may be told:
- They can go easier on you if you speak with them.
- You are not a suspect and they need you to talk to them to help them solve a crime.
- You that you have the right to explain yourself or “tell your side of the story”
Regardless of what you're told by the police, if you are detained, always talk to a lawyer first. The ONLY thing you should say if you are in police custody is “I want to speak to an attorney.”
However, if you are simply 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.
You have a right to legal representation if you have been arrested and charged with a crime for which you can be incarcerated. This means that if the maximum possible punishment for the charge against you includes jail or prison (even if it is unlikely that YOU would receive a jail or prison sentence) you have the right to have an attorney. If the maximum possible punishment for the charge is a fine, you still always have the right to hire a lawyer to represent you if you can afford one.
If you have been charged with a crime that could possibly include jail time but 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 their services; however, if you cannot pay, the court will provide the attorney. You may have to pay a small court fee, depending on which state you are in. However, financial hardship should never stop you from getting a court-appointed attorney. 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.
Sometimes you may not see an attorney until you go to court. If you are in police custody, you should remain silent while you wait for an attorney. If you are released and given a court date, you should not talk about your case with anyone until you are given a lawyer at your court date.
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. If the police tell you that you may go, leave. If you remain, the detention will be voluntary and legal.
If you have been arrested, there are several possibilities. The fact that you were arrested means that the police have some reason to 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 Government’s designated attorneys (prosecutors) may do that.
If the Prosecutor decides that you likely 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.
Just because you have been charged with a crime does not mean you are guilty. You always have the right to see the evidence against you. You always have the right to a trial. You should always discuss these rights and your options with a lawyer before making any decisions.
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.
Both the federal government and state governments have different types of law enforcement officers and each type of law enforcement can work together. Some kinds of federal law enforcement are familiar, like the FBI and the ATF. Other federal agencies have law enforcement officers as well that are less common, such as the United State Postal Service, the IRS, and the Social Security Administration. Keep this in mind whenever you are talking to someone who is trying to get information from you. Investigators will not always look like traditional police officers.
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. State and Federal law enforcement sometimes work together to investigate crimes. Just because you were arrested by or talked to by a state or local police officer or a federal investigator does not mean that you will be charged in that court.
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. 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.
In some places, courts are trying to reduce the number of people held on cash bail. Sometimes, you can be released on certain conditions. These conditions must be explained to you so that you understand them completely. If you do not understand your obligations while you wait for your court date, you should always consult an attorney.
The amount of bail or the conditions of release must be determined by a designated official. Sometimes this is a judge and other times it could be a bail commissioner or magistrate.
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).
In Federal Court 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 you will be informed 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. Technically, you can plead guilty or not guilty and in some states there may be other plea options. This is a formality at the very start of a criminal case. There is no reason to plead guilty at your first appearance in court. You should always talk to a lawyer before entering any kind of plea.
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. You should NEVER, EVER plead guilty without talking to your attorney first.
A “plea” often refers to the time during a criminal case when the defendant admits to a criminal charge and accepts a sentence instead of having a trial. A plea “bargain” refers to 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. Whether or not you decide to accept a plea bargain will depend on the facts of your case and the charges against you. It is a complicated decision and it should only be made after careful discussion in private with your lawyer about whether it is in your best interest.
In some states, and when certain types of charges are brought, the preliminary hearing is the next stage of the trial process where a 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.
Grand Jury proceedings are closed to the public and the defendant does not have a right to be present. The defendant’s attorney does not have the right to be present. The defendant and their attorney will be able to read the transcript of Grand Jury presentations afterwards.
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.
The trial is where all of the evidence for and against you that made it through the Pre-Triall 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. There are many different ways that this process can take place, and it depends on what state or court your trial is taking place in. There are laws to protect your right to a fair jury. This phase will not occur if you have a non-jury trial.
- Opening Statements: During opening statements, each side has an opportunity to summarize what they think the evidence will show during the trial. It is an opportunity to set the stage for the trial and give the jury some things to look for and think about as they listen the evidence later on.
- Presentation of Witnesses, and Cross-Examination: Here the prosecution will present their witnesses and lay out their 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. There are several myths about the defendant testifying. Some say that a defense attorney should never let their client testify. Others believe that a defendant has to testify, otherwise he is guilty. Whether or not a defendant should testify is an important and strategic decision that should only be made after careful discussion between the defendant and their attorney.
- 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.
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.
In most contexts, both sides will have an opportunity to argue for what sentence they believe is appropriate. There may be different names for this depending on the court.
Just like any other work history, your military service may be an important fact about you that your attorney should share with the judge in determining your sentencing. Other factors that can contribute to a sentencing argument are resources available to you that can assist with housing, medical, mental health, or substance use treatment, or employment search. If you work closely with a military or veterans program that provides these kinds of resources, you should share that with your attorney. A judge will be looking for a sentence that appropriately punishes the defendant and ensures the best chance for rehabilitation and prevention of recidivism (which means committing another crime in the future). By showing the resources that you already have in place that will help achieve these goals, you can demonstrate for the judge why you should receive the sentence your attorney is asking for.
Some states and the federal system have strict guidelines for what can be considered during a sentencing decision.
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.
After you have been convicted there is usually an the appeal process. 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, it is important that you have a lawyer help you with this process. 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.
It is very difficult to appeal a conviction when you chose to plead guilty rather than have a trial. Your appeal rights depend very much on the history of your case through the court so it is always best to consult with an attorney on this decision.
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 their family. Veterans who are serving jail time for misdemeanors (not felonies) 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.
If it is determined that your benefits should be reduced as a result of your incarceration, you should receive a notice at your last known address. You must apply to have a portion or all of your benefit apportioned to a dependent, it will not happen automatically.
It is important that you inform the VA of your incarceration so that it can adjust your benefits and know where to send important notices while you are in custody. If you receive benefits that should have been reduced or terminated due to your incarceration, you may have to pay back the overpayment later.
- VA Disability Compensation: If you are convicted of a felony and serve 60 or more days in jail or 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 by half. However, after you are released from prison your compensation payments 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 jail or 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 incarcerated you will only be able to receive medical care from the jail or prison health care system because the VA may not provide healthcare services to a veteran while another government agency (the jail or 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, fees, and necessary books, equipment, and supplies. However, if you are serving time for a non-felony or you have been released to a halfway house, 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.
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.