The Criminal Justice Process
Discovery is the process by which the Government provides the defendant with the information it has collected in its investigation. The discovery rules are different in state and federal court but in general, a defendant is entitled to all of the information the Government intends to offer as evidence against the defendant at trial. The Government generally must also turn over any expert reports it’s relying on, witness statements, photographs and forensic reports that it collected.
Some cases will have thousands and even millions of pages of discovery. A successful defense requires this information to be carefully reviewed by an attorney who knows how to analyze it, knows what is missing, and how to pursue that missing information. Likewise, it is critical to thoroughly review this information promptly so that the strengths and weaknesses of your case can be evaluated.
Scott has overseen, coordinated and handled discovery reviews in matters involving multiple terabytes of discovery which consisted of millions of pages or materials and files. He knows how to process, organize, and digest this information for his clients efficiently and effectively.
Grand Jury and a Grand Jury Indictment
Under both New York State and federal law, before the Government can bring someone to trial on a felony level offense, the Government must present its case to a Grand Jury. The Grand Jury is comprised of normal citizens who hear evidence presented by the prosecutor. There is no judge. There is no defense attorney. The entire process is run by the prosecutor. If the Grand Jury finds that there is reasonable cause to believe that a crime was committed, it can return an indictment.
An indictment is formal legal document that charges someone with a crime. If the Grand Jury votes to indict someone, then that person will be brought to court to be arraigned on that charge. If the Grand Jury determines that there is insufficient evidence, it can return a “No Bill” and the matter is dismissed.
Under New York State law the defendant has a legal right to testify at the Grand Jury if they have been previously arrested on a felony complaint or otherwise notified the District Attorney that they may want to testify. A defendant can also request that the foreperson of the Grand Jury compel certain witnesses to testify and/or to compel the production of certain documents for the Grand Jury to consider. Surprisingly, no similar rights exist under federal law. While the Department of Justice’s policies (Justice Manual 9-11.152) state that federal prosecutors should give the a request to testify “favorable consideration”, there is nothing that can force the Government to permit someone to testify during a federal Grand Jury.
It is very rare that a defendant will testify at a Grand Jury and it is a high stakes decision because it requires a waiver of immunity and anything that a target says in the Grand Jury can be used later as evidence. But it is an important right and defense tactic that needs to be carefully considered based on the facts of each case.
If you believe that a Grand Jury is investigating you or your company or you want to determine whether you should testify at the Grand Jury, contact Scott for a consultation.
Pretrial motions are an opportunity for the defendant to ask the court for some kind of relief. Common pretrial motions include a request to dismiss all or some of the charges, to suppress certain evidence or for evidentiary pretrial hearings to determine whether certain evidence is admissible.
There are important deadlines for making these pretrial motions and certain motions require producing evidence in support of the request for relief. Scott knows how to handle these issues and how incorporate pretrial motions into his client's overall defense strategy.
Pretrial hearings are held before the trial and only before the judge – there is no jury at this point. Common pretrial hearings revolve around whether a search was lawful or a statement was lawfully obtained. Other hearings have to do with topics like the admissibility of certain evidence and whether an expert witness is qualified to testify.
Many of these hearings require the Government to prove the admissibility of the evidence it seeks to admit. At the hearing, the defense attorney gets an opportunity to challenge that evidence through cross examining witnesses, presenting evidence in support of the defendant’s position and making legal arguments to the court. Properly requesting the correct pretrial hearings is critical in any defense case to challenge important legal issues, develop testimony and learn more about the Government’s theory of the case.
Plea Offers/Agreements and Plea Bargaining
A plea offer or plea agreement is a deal between the prosecutor, the judge and the defendant for the defendant to accept a guaranteed punishment on a pending criminal charge in exchange for the defendant pleading guilty, giving up their right to a trial, not appealing the conviction and perhaps other conditions.
Plea bargaining or negotiating plea agreements requires an intimate understanding of the facts and the law that apply to the defendant’s case so that the defense counsel can demonstrate the weaknesses in the Government's case and whether there are any mitigating circumstances (for example, mental health issues that contributed to the alleged criminal conduct) that help explain why what happened happened. Most cases end with an agreed upon plea bargain. As a result, it is critical that your defense attorney know how to most effectively negotiate a plea agreement and understand what is most important to their client.
Scott knows how the handle these negotiations to get the best possible plea offer. When an agreement cannot be reached, Scott is ready to protect his clients rights at trial.
At trial you have the right to have a jury (or a judge) to decide whether the Government can prove its charge beyond a reasonable doubt. Trials are high stakes, dynamic and intense. At trial you can challenge the evidence against you through cross examination, presenting your own evidence and your attorney’s arguments. Trials are full of their own procedures, rules of evidence, and processes. Scott is a seasoned trial attorney in both New York State and federal court and knows how to persuasively defend his clients at trial. If you are charged with a crime and want to go to trial, call Scott for a consultation about your trial defense strategy.
If you are convicted at trial then you can appeal the conviction to the next highest level court by arguing that legal mistakes happened that hurt your rights and your defense. Critically, issues need to be preserved to be appealed and that is the job of the trial attorney – to object, make appropriate motions and reserve their client’s rights at each stage so that every issue can be appealed if necessary. If the appellate court agrees with your appeal a new trial can be granted or in some cases, the charges can be dismissed.
Scott IsemanFounding AttorneyWith experience as a former Marine Corps prosecutor, as well as significant experience defending clients in state and federal cases, Scott is prepared to defend your case.
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