Criminal Law FAQ's
Frequently Asked Questions about Criminal Law
Frequently Asked Questions about White Collar Crime
Frequently Asked Questions about Internet Crime
Frequently Asked Questions about Drug-Related Crimes
Frequently Asked Questions about International Crime
Frequently Asked Questions about Criminal Law
Q: How does the prosecutor decide which cases to pursue?
A: The first thing the prosecutor looks for is a legally sound case, or one without any obvious defects that will get it thrown out of court, such as violations of the defendant's constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is enough evidence, with regard to both the quantity and the quality thereof, to make conviction probable. Finally, the prosecutor decides if prosecuting the case fits in with the office's policy objectives, or whether a more informal disposition such as pre-trial diversion may be in order.
Q: Do I need a lawyer to represent me even if I am innocent?
A: Every criminal defendant needs an attorney. Innocent defendants are perhaps in even greater need of zealous representation throughout the criminal process to ensure that their rights are protected and that the truth prevails. Even innocent people end up in jail, so the best way to prevent that miscarriage of justice is to employ the services of a seasoned veteran of criminal defense law.
Q: If I simply intend to plead guilty, why do I need a lawyer?
A: You may not understand the full implications of the crime with which you are charged. Even if you are guilty of the crime with which you are charged, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved
Q: What is a "grand jury"?
A: A grand jury is a group of people called together by the prosecutor to gather information about suspected criminal activity by listening to testimony from witnesses and examining documents and other evidence. The prosecutor acts as legal advisor to the grand jury and directs the flow of witnesses and evidence. At the end of the proceeding, the grand jury decides whether there is enough evidence to put the defendant on trial for the crime. Grand juries are more likely to be convened in connection with more serious and complicated drug crimes, like conducting a drug-related criminal enterprise.
Q: What is the difference between parole and probation?
A: Parole and probation are employed in the punishment phase of the criminal justice process. Parole comes into play after a person has been imprisoned and is released subject to supervision by an officer of the court. Probation, by contrast, refers to a criminal sentence separate and distinct from incarceration. Probation is the most frequent sentence imposed for less serious or first offenses and typically involves releasing the convicted offender into the community subject to a list of terms and conditions. Both parole and probation may include additional conditions, like attending drug education classes or receiving drug treatment.
Q: What is "restitution"?
A: Restitution involves ordering the defendant to pay the victim a sum of money designed to compensate the victim for the monetary costs of the crime, such as medical bills, property damage and lost wages. By federal law, under the Mandatory Victims' Restitution Act of 1996, restitution is required when a violent crime has been committed and for certain other, limited, offenses. Many state and federal laws also require a criminal offender to make restitution to the victim, and the court will order restitution under those laws when the offender is sentenced.
Q: What is forfeiture?
A: In some types of cases, the government may ask the court for an order allowing it to seize any assets purchased by a defendant with the proceeds of a crime. For example, the government may ask the court to allow it to seize an automobile purchased by a defendant with the proceeds of an inside trading scheme. This is known as forfeiture. The government also may seek forfeiture of money or bank accounts, solely by proving that the money is the proceeds of a crime.
Federal Criminal Defense Lawyer Frank Rubino has gained a reputation as an aggressive criminal defense attorney with the skill and knowledge to bring about positive results for his clients. If you have been charged with or are under investigation for a serious crime in Florida or for any federal criminal charge, contact Frank A. Rubino, Esq. at (866) 435-1623 or email him using the contact form in the left-hand column. In criminal defense cases, experience makes the difference.
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Frequently Asked Questions about White Collar Crime
Q: What is "white collar crime"?
A: White collar crime is a term originally used to describe criminal activity by members of the upper classes in connection with their professions. Today, the most common definition of white collar crime no longer focuses on the social status of the offender, but rather on the type of conduct involved: illegal acts using deceit and concealment to obtain money, property, or services, or to secure a business or professional advantage. White collar crimes are usually less violent than other crimes, but their effects can be just as devastating, such as in the recent Enron case.
In some cases, businesses or corporations may be found guilty of white collar crimes. This guilt is in addition to the guilt of any employees or officers involved in the crime.
Q: Who prosecutes white collar crimes?
A: White collar crimes may be either state or federal crimes. Because they often involve lengthy investigations that can cross state or even international boundaries, the federal government is usually in a better position to investigate and prosecute white collar crimes.
Q: Are defendants in white collar crimes treated any differently than other defendants?
A: The courts try to treat white collar defendants no differently than other defendants. There may be a suspicion that white collar defendants receive preferential treatment, especially regarding plea bargaining, terms of pre-trial release, and sentencing. It is important to remember, however, that white collar crimes, while very serious, usually do not involve physical violence, and are not crimes that are committed easily. The concerns that a court might have when deciding whether to release a defendant before trial, or deciding where to place a defendant to serve a jail sentence, are not the same for a white collar defendant as they would be for a defendant charged with a violent crime. Furthermore, many white collar cases depend on the cooperation of one or more defendants. A plea bargain for one defendant that seems unduly lenient may be the only way the government has of pursuing a case against a defendant guilty of far more serious crimes.
Federal Criminal Defense Lawyer Frank Rubino has gained a reputation as an aggressive criminal defense attorney with the skill and knowledge to bring about positive results for his clients. If you have been charged with or are under investigation for a serious crime in Florida or for any federal criminal charge, contact Frank A. Rubino, Esq. at (866) 435-1623 or email him using the contact form in the left-hand column. In criminal defense cases, experience makes the difference.
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Frequently Asked Questions about Internet Crime
Q: Who makes the laws that govern the Internet?
A: There is no one governmental authority over the Internet. Federal and state governments have enacted laws that regulate certain transactions, including those that take place over the Internet.
Q: Where do I report an Internet crime?
A: As with any crime, the answer to that question depends upon the crime that was committed. For example, financial or banking crimes (such as "4-1-9 scams") are investigated by the U.S. Secret Service, while fraud crimes are investigated by the Federal Trade Commission (FTC). Child pornography and related offenses are prosecuted by the FBI, or local law enforcement.
Q: Is Spam illegal?
A: Spam or unsolicited e-mail is not illegal in most states. It is regulated, however, and recipients must be given a way to inform the sender that they do not want to receive any more e-mail messages from that sender.
Q: Is distributing a computer virus a crime?
A: Yes. Federal law makes it a crime to cause the transmission of a program, information, code, or command that causes more than $5000 damage to a computer or computers, or that alters medical records, causes physical injury to any person, threatens public safety, or damages a government computer. The maximum penalty is a prison sentence of up to ten years, a fine of up to $250,000, or a combination of prison time and a fine.
Many states also have enacted anti-virus laws. States that do not have specific laws against disseminating a virus may prosecute offenders under other laws, such as laws that prohibit theft of computer services.
Q: My computer automatically forwarded an e-mail that had a virus attached to it, but I didn't know the virus was there. Can I be prosecuted for distributing a virus?
A: No. The law prohibits knowingly sending out a virus. If you did not know that a virus was being sent out, and you had no part in the creation or transmission of the virus, you are not criminally liable.
Q: I copied some software online, and gave friends some of the copies without getting permission first. Can I be prosecuted for copyright infringement?
A: In order for copyright infringement to be a criminal act, the government must prove that ten or more illegal copies, with a total value of more than $2500, were made within a single 180-day period. It does not matter that the copies were not made for commercial purposes, or that the copier did not intend to charge for the copies.
Note that you may be civilly liable to the owner of the copyright, even if you did not make ten or more copies, or if the value did not exceed $2500. The number of copies and value are only elements of a criminal case.
Q: If I put a disclaimer on my website that says nothing on the site is meant to infringe anyone else's copyright, will that be a defense to a copyright infringement prosecution?
A: No. In fact, the U.S. Department of Justice has advised prosecutors that such disclaimers help to prove that the website operator knew his or her conduct was unlawful, thus helping the prosecution to make its case that the infringement was done knowingly.
Q: I took some pictures of my toddlers in the bath. Am I guilty of distributing child pornography if I e-mail these pictures to other family members?
A: Probably not. While there are many stories about people being investigated or prosecuted on child pornography charges for taking nude snapshots of their children, these cases do not result in the conviction of the parents who took the pictures. A picture that does not include the "lascivious exhibition of the genitals or pubic area" does not fall within the federal definition of child pornography.
Federal Criminal Defense Lawyer Frank Rubino has gained a reputation as an aggressive criminal defense attorney with the skill and knowledge to bring about positive results for his clients. If you have been charged with or are under investigation for a serious crime in Florida or for any federal criminal charge, contact Frank A. Rubino, Esq. at (866) 435-1623 or email him using the contact form in the left-hand column. In criminal defense cases, experience makes the difference.
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Frequently Asked Questions about Drug-Related Crimes
Q: How does the prosecutor decide which drug cases to pursue?
A: The first thing the prosecutor looks for is a legally sound case, or one without any obvious defects that will get it thrown out of court, such as violations of the defendant's constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is enough evidence, with regard to both the quantity and the quality thereof, to make conviction probable. Finally, the prosecutor decides if prosecuting the case fits in with the office's policy objectives, or whether a more informal disposition, like drug counseling or treatment, may be in order.
Q: What defenses can be raised in drug cases?
A: The most common defense raised in drug cases is to challenge the search and seizure that resulted in the police finding the drugs. If the police violated the defendant's Fourth Amendment search and seizure rights, the court will suppress, or throw out, the drugs as evidence. The prosecution will then have far less evidence to prove the case beyond a reasonable doubt and the case could even be dismissed.
Q: Can a defendant plea bargain in a drug case?
A: Plea bargaining, which involves negotiating with the prosecutor to get the charges reduced and the punishment minimized, is allowed in drug-offense cases. For example, a person charged with three separate drug charges-possession, possession for sale, and transportation of drugs-may be able to negotiate the charge down to simple possession in exchange for an agreement to plead guilty to that charge. The prosecutor agrees to plea bargains in appropriate cases because the government simply does not have adequate resources to try every case, so both sides benefit from the bargain.
Q: Can a defendant be acquitted if he or she was on drugs when the crime was committed?
A: Defendants who commit crimes under the influence of drugs sometimes argue that their mental functioning was so impaired that they should not be held accountable for their conduct. Generally, however, voluntary impairment does not excuse criminal conduct, since people know or should know that drugs affect mental functioning, and they should therefore be held legally responsible if they commit crimes as a result of their voluntary use. An exception to this rule may exist in cases involving a crime that requires "specific intent," in which the offender must have intended the precise result that occurred, but arguably could not have formed that intent in his or her drugged state.
Q: Are children charged with committing drug-related crimes prosecuted in the same manner as adults?
A: Children are subject to a separate judicial system called the juvenile court system. Generally, the focus of the juvenile court system is more on rehabilitation than on punishment. In some cases, however, older juveniles who commit more serious crimes will be charged as adults and tried in the regular criminal courts. In such cases, their sentence, too, will be more in accord with adult punishment, whereas in juvenile court any incarceration is usually in a more rehabilitative setting and generally ends when the juvenile attains the age of majority.
Federal Criminal Defense Lawyer Frank Rubino has gained a reputation as an aggressive criminal defense attorney with the skill and knowledge to bring about positive results for his clients. If you have been charged with or are under investigation for a serious crime in Florida or for any federal criminal charge, contact Frank A. Rubino, Esq. at (866) 435-1623 or email him using the contact form in the left-hand column. In criminal defense cases, experience makes the difference.
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Frequently Asked Questions about International Crime
Q: Will the U.S. government help me if I am arrested in a foreign country?
A: A foreign government that arrests a U.S. national must inform the U.S. embassy or consulate of the arrest. U.S. embassies and consulates can provide only limited assistance to U.S. citizens arrested in a foreign country. A consular officer will visit the arrested person in jail, if necessary, and provide him or her with a list of English-speaking lawyers. The officer will also make sure that the U.S. citizen is not mistreated, or is not treated any worse than any other prisoner in the local jail.
Q: If an American is convicted of a crime in a foreign country, can he or she serve the sentence in an American prison?
A: The U.S. has entered into treaties with many nations that provide that a person convicted of a crime may be transferred to his or her home country to serve a prison sentence. A prisoner who wants to be transferred must apply to the warden of the prison in which he or she is incarcerated, and the application must also be approved by the U.S. Department of Justice.
A prisoner who is transferred to the U.S. will have his or her sentence reevaluated, and may be re-sentenced according to U.S. law.
Q: While I was visiting overseas, I made some remarks critical of the foreign government. I left the country, and learned I have been charged with a crime for defaming the national government. Can I be extradited to that country?
A: No. U.S. extradition treaties generally provide that a person can be extradited to a foreign country only for something that is a crime both in the U.S. and the foreign country.
Q: My parents brought me to the U.S. when I was a child, and I have not finished the naturalization process. If I am convicted of a crime, can I be deported?
A: Non-citizens convicted in the U.S. of crimes the immigration law defines as "aggravated felonies" may be subject to deportation proceedings, even if their immigration status is that of a permanent resident, or even if they are married to a U.S. citizen. A person deported for committing a crime is permanently barred from returning to the U.S. The term "aggravated felonies" includes violent crimes such as homicide or rape. It also includes many drug-related offenses, as well as some theft offenses (such as shoplifting).
Q: I sent a package to a friend in a foreign country that contained things that are illegal in that country. Can I be prosecuted?
A: The answer depends on what it was that you sent. If you sent something that is illegal only in the foreign country—for example, books or magazines banned in that country—you are not subject to prosecution unless you go to that country. If the package contained something that is illegal in both countries—illegal drugs, or weapons—you could be prosecuted either in the U.S. or in the foreign country.
Q: If I am the victim of a crime committed in a foreign country, can the person who committed the crime be tried in U.S. courts?
A: Traditionally, the U.S. has resisted the idea that foreign nationals could be tried in U.S. courts for a crime committed abroad against a U.S. national (called "passive nationality jurisdiction"). In recent years, some U.S. criminal laws, especially those that relate to terrorism or terrorist acts, have been changed to allow U.S. authorities to prosecute some violent crimes against U.S. citizens wherever the crime was committed.
Q: My sister is serving with the U.S. Army overseas. She was arrested for a crime committed when she was not on the Army base. Will she be tried by the foreign court, or by a U.S. court martial?
A: The legal authority to prosecute a U.S. service member in an overseas court depends upon the Status of Forces Agreement (SOFA) between the U.S. and the host country. While all SOFAs are different, they typically provide that a U.S. service member who commits a crime off-base may be tried in the courts of the host country, unless the crime was committed against another American service member, or unless the crime was committed during the course of the service member's official duties. If the service member is not tried in the host country's court, he or she may be tried by a U.S. court martial.
Q: Are foreign diplomats immune from prosecution for crimes they commit in the U.S.?
A: As a rule, diplomats are not subject to prosecution for crimes they commit in the country in which they are stationed. This is the general rule in most countries of the world, not just the U.S. The country in which the crime is committed is usually limited to ordering the offending diplomat to leave the country.
Q: What is the International Criminal Court? Is it the same thing as the International Court of Justice?
A: The International Criminal Court is a court set up to try those accused of offenses known as "crimes against humanity." Crimes against humanity include offenses such as war crimes and genocide. The U.S. is not a member of the International Criminal Court.
The International Court of Justice hears disputes between nations, such as border disputes.
Criminal Defense Lawyer Frank Rubino has gained a reputation as an aggressive criminal defense attorney with the skill and knowledge to bring about positive results for his clients. If you have been charged with or are under investigation for a serious crime in Florida or for any federal criminal charge, contact Frank A. Rubino, Esq. at (866) 435-1623 or email him using the contact form in the left-hand column. In criminal defense cases, experience makes the difference.
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