why would a criminal defense lawyer waive the indictment?

The decision to waive a federal indictment is a tactical one, and it should only be waived after discussing it with your lawyer. A federal defendant is either arrested when a complaint or indictment is filed. If a suspect is arrested on a complaint, then they have the right to a preliminary hearing within a specific time.

Full Answer

What is a waiver of indictment?

 · When it appears that you may engage in plea agreement negotiations with the prosecution later in the case, it may be wise to waive indictment. Namely, it may be a factor that your lawyer can argue at a sentencing hearing – i.e., that you took early responsibility and saved the government valuable time and resources.

Can I waive my constitutional right to indictment?

 · As an experienced, Philadelphia criminal defense lawyer, Lauren Wimmer believes that everyone is entitled to competent, aggressive legal representation. If you would like to speak with her about your case, contact Wimmer Criminal Defense Law at 215-712-1212 to schedule a free consultation. Because You Are Innocent Until Proven Guilty.

Why do prosecutors prefer to use criminal information instead of indictment?

 · The Waiver Process. When an individual is charged with an indictable criminal offense , which is New Jersey’s version of a felony charge, the prosecutor is required to present the case to a grand jury. The accused can be given the option of avoiding indictment and proceeding directly to a plea.

Can a lawyer have experience with speaking indictments?

Answer (1 of 4): There can be a lot of reasons and you really can’t generalize. As a defense attorney, I waived preliminary hearings on quite a few occasions, but I can’t say that there were any standard reasons for doing so. Sometimes there might be a prosecution witness who’s testimony you want...

What is the process of a defendant proceeding by way of accusation?

A defendant typically proceeds by way of accusation where the prosecution has made a favorable plea offer such that it is not in the defendant’s best interest to proceed to indictment (e.g. charges would be worse).

How to avoid grand jury?

Avoiding Grand Jury by Waiving an Indictment. There are instances where an accused desires to waive his constitutional right to indictment. This can be accomplished through execution of a waiver of indictment, in which case an individual is tried based on an “accusation.”.

How does a waiver work in NJ?

For a waiver to be effective, the defendant must appear before a Superior Court judge with his or her attorney, and confirm his understanding of his or her rights. He or she has a right to have the case presented to a grand jury in NJ with an opportunity for issuance of a “No Bill .”. By executing the waiver, the individual is confirming ...

What is the waiver process in New Jersey?

The Waiver Process. When an individual is charged with an indictable criminal offense , which is New Jersey’s version of a felony charge, the prosecutor is required to present the case to a grand jury. The accused can be given the option of avoiding indictment and proceeding directly to a plea.

Can an accused plea to an indictment?

The accused can be given the option of avoiding indictment and proceeding directly to a plea. He must, however, execute a waiver of indictment before a plea to the accusation can be accepted by the Court. An accusation is a document that is drafted by the prosecutor reciting the charges against the accused, and basically mimics an indictment.

What to do if you are arrested and charged with a felony?

Plea before Preliminary Hearing. If you are arrested or receive notice that you will be charged with a felony, contact an attorney immediately. A knowledgeable attorney can protect your rights and keep you informed through the preliminary hearing process.

What is the term for a preliminary hearing in a felony case?

In order for the court to continue holding a felony defendant in custody, the court must conduct the preliminary hearing within the amount of time prescribed by state law and issue a formal charging instrument, sometimes referred to as a "criminal information.". If the preliminary hearing is not conducted within the time prescribed, ...

Can a defendant have an attorney?

A defendant is entitled to have an attorney represent them at a preliminary hearing. If the defendant requests an attorney, the court cannot conduct the hearing without ensuring that the defendant has private counsel or appointing an attorney—such as a public defender—to represent the defendant.

Can a police officer testify at a preliminary hearing?

This means that a police officer can testify about what witnesses told him during interviews and the prosecutor will not be required to have those witnesses testify at the hearing. How courts conduct preliminary hearings and what occurs in each hearing varies with each state's laws and its state constitution.

Is a preliminary hearing considered a criminal trial?

A preliminary hearing usually is not as exhaustive as a criminal trial and the prosecution likely will not present all its evidence against the defendant -- just enough to establish probable cause.

What is unreasonable delay?

An unreasonable delay violates the defendant's federal constitutional sixth amendment right to a speedy trial. If a defendant is arrested or charged in a criminal complaint and the prosecutor's office or the court does not schedule the preliminary hearing until months or years later, the case can be dismissed because of the delay. ...

Can a preliminary hearing be held after arrest?

However, the preliminary hearing must occur within a reasonable time after arrest. An unreasonable delay violates the defendant's federal constitutional sixth amendment right to a speedy trial.

Why is it important to bring a criminal case to trial?

The reasons for this approach begin with the wish to subject incarcerated pretrial defendants to as little time behind bars as possible. In addition, making defendants wait may expose them to the loss of witnesses, physical evidence, and witnesses ’ memories. Dragging out a criminal case is particularly difficult for victims. On the flip side, allowing defendants to unnecessarily prolong the proceedings, in hopes that damning evidence will become unavailable, is not in the public’s interest of conducting fair trials.

Why do prosecutors ask for a continuance?

Asking for a continuance on the grounds that the prosecutor is not prepared is typically a non-starter.

What is the right to prepare for trial?

To prepare for trial. States typically provide defendants with a minimum amount of time between entering the plea and going to trial. But a defendant has a right to adequately prepare defense (which includes the right of counsel to prepare).

Why do defendants ask for continuances?

Typical Reasons Why Defendants Ask for Continuances. Judges are often asked to continue a hearing or a trial for these reasons: At the arraignment, to secure counsel. An arrestee’s first court appearance is often the arraignment, when the judge reads the charges and asks for a plea.

Can a motion for continuance be made at a sentencing hearing?

Requests (called “motions”) for a continuance can be made up to and including the sentencing hearing. But states typically narrow the reasons for which a defendant or a prosecutor may ask for a continuance. These scenarios are explained below.

Can a prosecutor waive time?

If the defendant refuses to waive time in response to the prosecutor’s request for a continuance, the case can be dismissed. And even when the defendant has waived time, the prosecutor must obtain the court’s approval for a continuance.

How to deal with adverse pretrial publicity?

Occasionally, defendants will ask for a continuance on the grounds of prejudicial publicity. Whether that motion will be granted depends on the facts of each case. Typically, judges will inquire as to how widespread and negative the publicity actually is; whether a change of venue (to another location within the court system) will solve the problem; whether questioning potential jurors about their exposure will result in a taint-free jury; and whether admonishing the jury to disregard such publicity, or even sequestering them, will alleviate the effects. Often, the effect of pretrial publicity can be mitigated using one or more of these approaches.

What happens if a defendant pleads guilty to a crime at arraignment?

Guilty. If a defendant pleads guilty to a very minor crime at arraignment, such as disorderly conduct, the judge may sentence the defendant at arraignment. The prosecutor and defense attorney may negotiate the guilty plea and agree on a sentence during the arraignment.

What does the court consider when deciding whether to release a defendant?

In deciding whether to release the defendant pending completion of the case, courts primarily consider: whether the defendant is a danger to the community. the defendant's criminal record. the defendant's ties to the community (how long he has lived in the community and whether he has family nearby)

What bond do you need to post in a court case?

The court can require a cash bond or a surety bond. If the bond is cash only—for instance, $10,000 cash—the defendant must post that amount with the court.

Can a defendant plead not guilty?

The defendant can plead not guilty, guilty, or no contest.

Who reads a criminal complaint?

In some states, the judge must read the criminal complaint, indictment, information, or another charging document to the defendant unless the defendant waives the reading. The defendant also is entitled to receive a copy of the charging document.

Can a defendant be represented at arraignment?

In some states, the defendant has a constitutional right to be represented by counsel at arraignment. If the defendant wants an attorney present, the court cannot arraign the defendant without giving the defendant an opportunity to obtain counsel or appointing a public defender.

What rights do you have to be advised of at arraignment?

In some states, courts are required to advise defendants of certain constitutional rights at arraignment, such as the right to trial, the right to counsel, and the right against self-incrimination. In some state courts, defendants are advised of their rights as a group before appearing in front of the judge.

Who decides whether to indict someone?

Who Decides Whether to Indict? In all but two states, a grand jury is who decides whether the state has enough evidence to charge someone with a crime. A grand jury is a body of people called by the prosecutor who looks at all available evidence in a case.

What is an indictment?

An indictment is a formal accusation, based upon available evidence, that a person has committed a serious crime. If there’s enough evidence to prove that a person committed a crime, then they’re indicted. The most important thing to know about indictments is that they’re not required for every single crime.

What to do when you are indicted for a crime?

The important thing to do when you or a loved one are indicted for a crime is to hire an attorney to help you navigate the criminal justice system.

What does it mean to plead guilty?

A plea deal means that you plead guilty or no contest to the charges and serve a lesser punishment than you would’ve had if your case went to trial and you were convicted. Your attorney must bring every plea deal offered by the prosecution to you in order to make a decision on whether to accept.

How long does it take to get to trial after being indicted?

After you’re indicted, then you’ll go to trial. Getting to trial, however, isn’t as cut and dry as it’s portrayed on television. There will be numerous pre-trial hearings, and depending on how busy the courts are in your state, it can be months or even years before you’ll ever make it before a jury.

What factors go into a judge's decision on bond?

A few factors that go into a judge’s decision on bond include the risk to the community by releasing the defendant, and whether the defendant is a flight risk (due to being wealthy or having a history of not showing up for previous hearings).

What is probable cause?

Probable cause falls below the preponderance of the evidence standard, which is a greater than 50% chance that someone did something. Probable cause really just means based on the evidence that’s available, it’s reasonable for you to be charged with a crime. It’s not a high bar and is by no means a slam dunk for conviction.

What is an indictment in criminal law?

An indictment is a formal accusation against one or more defendants, charging them with one or more crimes. In the federal criminal system, the indictment is the principal method by which a prosecutor initiates criminal proceedings. For certain types of crimes, and under certain conditions, the prosecutor may, instead of an indictment, rely on a “criminal information” or a “criminal complaint” to formally begin the case. Later in this article, we will briefly explain the differences between each of these legal documents (also called pleadings).

What is the caption of an indictment?

The caption identifies the parties to the action, the case number, and the “counts,” or charges, that are contained in the indictment.

Can a grand jury indict a ham sandwich?

You may have heard the expression that prosecutors can “indict a ham sandwich.” This reflects the facts that: (1) grand jury proceedings are secret and closed to the public. The defense has no opportunity to present evidence at a grand jury proceeding, challenge the prosecution’s evidence, or present its side of the story. (2) The “probable cause” standard is one of the lowest standards in criminal law, defined as requiring only sufficient evidence to lead a reasonable person to believe that a crime has been committed and that the defendant is guilty. This stands in stark contrast to “beyond a reasonable doubt,” which is necessary to convict a defendant at trial.

What happens if the grand jury votes to indict?

If the grand jury votes to indict, it will return a “true bill,” signed by the foreperson of the grand jury. This is why in all federal indictments, there is a stamped or typed statement at the end of each document with the words: “a true bill.”. You may have heard the expression that prosecutors can “indict a ham sandwich.”.

How many grand jurors are needed to indict a person?

A minimum of 16 grand jurors must be present to vote (a quorum), and at least 12 must vote in favor of an indictment before charges can be brought.

Can an indictment be short?

Not all indictments will look like the example shown. Sometimes, an indictment may be very short and contain only a paragraph for each count. The paragraphs may simply repeat the language used by the statutes that the defendants are charged with violating. In such cases, a defense attorney may need to file a motion for what is called a “bill of particulars” to obtain more information. Again, if you have been charged with a crime and is trying to understand the indictment, you should, in addition to reading this website, consult an attorney.

What is count in criminal cases?

The count is an important unit in federal criminal cases: if there is a trial, the jury will have to vote “guilty” or “not guilty” on each count; if there is a conviction, the judge imposes a sentence for each count of conviction, and the nature and number of the counts influence the total sentence imposed. In our example, there is one count of ...