Before your case goes to trial, your attorney may try to negotiate a plea agreement with the prosecutor. Your attorney will not make any deals for you without your permission. But he or she will find out what kind of an offer the prosecutor is willing to make in your case. Then you can decide what to do, with your attorney’s advice

A plea agreement is a written contract between you, your lawyer and the federal prosecutor. It sets out the charge(s) to which you will enter a plea and outlines what you are giving up and what you are getting in exchange for your plea.

In some deals, the defendant pleads guilty to a lesser charge, or to only some of the charges. Sometimes the defendant pleads guilty to all the charges. Because a plea agreement is a deal between you and the prosecutor, it does NOT guarantee that the judge will give you the sentence you hope for.  If the prosecutor makes the recommendation in the plea agreement, he or she has kept the government’s side of the bargain. That means you must keep your side of the bargain and cannot take back your guilty plea if the judge gives you a different sentence than you hoped for. Some judges in this district follow plea agreements, but the judge does not have to follow the recommendation. The Court can legally sentence you to whatever the law allows.

There is also another type of plea agreement which is binding on the court. In a few cases, the plea agreement provides that you will get a specific sentence, or sentencing range, and if you do not receive the sentence all the parties agreed to, you can take back your guilty plea. Then you could try to negotiate a new plea or go to trial. It is up to the judge to accept or reject this agreement. The prosecutor does not have to offer this kind of deal. The prosecutors in this district offer binding plea agreements rarely, and only in very special types of cases. In most cases, your only choice is between a non-binding agreement and no agreement.

Plea agreements are put in writing and signed by the defendant, defense counsel, and the prosecutor. Before signing a plea agreement, read it carefully and make sure you understand all of it. Your attorney will go over it with you and answer any questions you may have.

If you decide to accept a plea offer, there will be a change of plea hearing. If you plead guilty, you are giving up many valuable constitutional rights. Your lawyer will discuss these with you before you decide to accept a plea offer. The judge will also want to make sure that you understand the rights you are giving up. The judge will make sure that you understand what is going on, and that you are pleading guilty because you want to and not because someone is forcing you. The judge will go through your rights one by one. The judge will make sure you understand the possible sentences. The judge will also ask you to admit facts supporting the charges to which you are pleading guilty. Each judge handles changes of plea a little differently. Ask your lawyer what to expect.

The U.S. Constitution guarantees you the right to a trial by jury, except in some misdemeanor cases. The trial date will usually be set when you are arraigned but it can also be continued if good cause is shown. Federal trials can be complicated, and you must help your attorney and other members of your legal team with anything that they ask you. Your attorney has a lot of experience with trials. Some decisions, like whether to testify, are yours to make after advice from your attorney. Other decisions, involving legal strategy and the way that your case should be presented, are for your attorney to make. You will be kept informed about these decisions.

It is the prosecutor’s job at a trial to prove that you are guilty beyond a reasonable doubt. It is not your job to prove you are innocent. If the prosecutor does not prove the charges beyond a reasonable doubt, you must be found not guilty.

You have a right to a speedy trial. The law says that you must be tried no earlier than 30 days or later than 70 days after your first appearance in court. There are exceptions which can be granted at the request of the prosecutor, a co-defendant, or your own attorney. These could extend the 70 day limit. You may hear the term “excludable time.” This means the time the court needs to make decisions about your case – like a motion –, or a certain period of time your lawyer needs to prepare your case, is not counted toward the 70 day limit. We say that “the clock stops” for those periods of time.

A jury of 12 people will hear your case and decide the case. You, your lawyer, the prosecutor, and the judge will all participate in deciding who should be on the jury. This process is called voir dire.  The jury will be selected and then sworn in. You can give up your right to a jury if you and your lawyer decide you would be better off having the judge decide your case, and if the prosecutor also agrees to waive the jury.

Each side will get to make an opening statement to the jury about what the case is about, what the evidence will be, and what the jury will have to decide. Since the government has the burden of proof they get to go first in the opening statements.

The government’s case

Since the government must prove the case beyond a reasonable doubt, they will go first in presenting evidence to the jury. The government will call witnesses and show evidence to the jury about the charges against you. After the prosecutor questions a witness, your attorney will have the chance to ask that witness questions. This is called cross-examination.

Rule 29 Motion

After the government finishes its presentation of the evidence your lawyer will make a Rule 29 motion, arguing that even if you consider the evidence in the light most favorable to the government, the Judge should not let the case go to the jury. These motions are seldomly granted, and then your lawyer will proceed with the defense case.

The Defense case

After the government finishes, your lawyer will have the chance to present any witnesses and evidence that will help your case. The defense does not have to present any evidence. If it does, the government will be able to cross-examine your witnesses. You will also have to decide if you want to testify. Your attorney should help you with this decision, including telling you the risks that are involved. The final decision about whether you testify is yours.

The rebuttal case

If you put on a defense case, the government will have the chance to rebut it. That means showing the jury evidence to contradict your defense. Again, they get to do this because they must prove the case beyond a reasonable doubt.

Closing Arguments

When both sides have presented their evidence, each side gets a chance to tell the jury what they think the evidence means, and how the jury should decide the case. The prosecutor goes first, and then your lawyer, then the prosecutor gets the final word. This is because the government has the burden of proving its case against you.

Jury Instructions

The judge will tell the jury what the law is, and what questions they will have to answer about your guilt or innocence. The lawyers for both sides will have a chance to help the judge choose what instructions to give the jurors.

Jury Deliberations

The jury will leave the courtroom and try to decide on a unanimous verdict. Every one of the jurors must agree. If they cannot agree on a verdict, then the judge may call a mistrial. A mistrial may mean that you must go through the whole trial process again. If the jury returns a “not guilty” verdict as to the indictment counts against you, the federal criminal proceedings are over, and you will be discharged. The government cannot re- try you after an acquittal. If, however, the jury returns a finding of “guilty” to one or more counts contained in the indictment, the Judge will schedule a date for a sentencing hearing.