The Arrest Process

The arrest process can vary depending on whether you have been charged with a federal or state crime.

The arrest process can vary depending on whether you have been charged with a federal or state crime.

There are fundamental differences between the federal and state criminal justice systems that require an experienced criminal defense attorney from the very inception of the case or investigation. For instance, most federal arrests are usually, but certainly not all, the result of a long term investigation by a federal law enforcement agency, such as the Federal Bureau of Investigations (FBI), Department of Homeland Security (DHS), Drug Enforcement Agency (DEA), Alcohol, Tobacco and Firearms (ATF), Internal Revenue Service (IRS), or Securities and Exchange Commissions (SEC) to name a few.

There are also dozens of less commonly known federal law enforcement agencies that have law enforcement powers such as the Departments of Commerce, Agriculture, and Postal Inspectors.

These agencies, working alongside the U.S. Department of Justice prosecutors usually conduct long term investigations that result in the issuance of an indictment, sometimes without the target of the investigation ever being aware.

Sometimes, an individual will know they are the subject of an investigation because investigators have shown up at your home or place of business or you became aware they are questioning family and associates or requested documents.

If you believe you are currently under investigation, you must immediately consult with an experienced criminal defense attorney as actions and decisions you make at the inception of an investigation can have huge implications on how the case will ultimately develop.

Unlike federal prosecutions, most state prosecutions are the result of an arrest that has occurred immediately after the commission of a crime.

Here, the investigators will arrive on the scene and work backward to recreate a narrative of what occurred by interviewing witnesses, reviewing video surveillance, or analyzing evidence left at the scene. 

The New York State constitution provides for more protections against criminal prosecutions than the federal system and having an experienced attorney at the very beginning of a case can have a significant impact on the outcome of the case.

For instance, the New York State Constitution provides a defendant arrested and accused of a felony crime the right to testify before the Grand Jury before they vote on whether to indict the defendant and empowers the Grand Jury to dismiss all charges after hearing from the defendant if they believe it is warranted. No such right exists in the federal system. The decision on whether to testify before the Grand Jury is an extremely important decision that can have a significant impact on your case and requires a thorough analysis by an experienced criminal attorney.
The law provides that an individual may be arrested by law enforcement authorities whenever they have reasonable cause to believe that the individual has committed a crime.

This allows authorities to physically seize your person and property and request that either a federal or state judge detain you in jail pending a trial or resolution of the charges. The bail system varies between the federal and the state system under the New York Bail Reform Act that requires an experienced attorney to navigate and conduct a bail hearing if necessary. Ultimately, a judge will decide if you will be released with conditions or detained.  At the very inception of the case, decisions must be made that will have long-lasting consequences on the outcome of the case such as whether you should speak to authorities or testify before the Grand Jury and disclosure of evidence. 

Under both the federal and state constitutions, a defendant has a right to remain silent at all times, however, there are circumstances when deciding to speak to authorities can result in significantly reduced penalties and sometimes results in no charges at all.

These are extremely sensitive decisions that can have huge consequences for you or your family and require careful analysis by an experienced attorney on a case by case basis.

After a criminal defendant has been charged, the law requires prosecutors to turn over certain types of evidence to the defense in order to evaluate the strength of the authorities’ case, prepare for trial and determine what option is in the client’s best interest.

At this stage, a defendant has several options:

  • They can proceed to trial and present evidence to establish their innocence
  • Present no evidence at all and require that the prosecution prove their guilt beyond a reasonable doubt
  • Plea bargain with prosecutors to secure a more favorable disposition
  • File legal challenges to the lawfulness or constitutionality of the charges
  • Choose to cooperate with authorities
  • Under very limited circumstances, prosecutors will entertain a defense application to drop the prosecution against a defendant if there are exceptional circumstances present. 

If a defendant is acquitted at trial, or a judge dismissed the charges on legal grounds, or if prosecutors agree to drop the charges; that will be the end of the criminal matter.

If a defendant is convicted after trial of any charge, they can pursue post-conviction motions or appeals to overturn the conviction. These applications are time-sensitive and failure to adhere to the time constraints can preclude you from challenging the conviction.

Convictions entered after a defendant has pleaded guilty can be appealed under limited circumstances as most prosecutors require a waiver of appeal in exchange for a favorable plea offer.

A criminal conviction on your record will have serious collateral consequences for the rest of your life and can result in the loss of certain rights that many of us take for granted; such as the right to vote and hold certain types of licenses and certifications. A criminal conviction can also place restrictions on the type of employment you may obtain and even on where you can live, not to mention going to prison for an extended period of time.

Everyone’s case and circumstances are different and require a careful analysis of all relevant facts and controlling laws.
John Diaz has experienced this litigation from both sides of the table as a defense attorney and former prosecutor. 
He shares his unique perspective with clients facing criminal charges and has cultivated relationships with the prosecutors from the varying prosecutorial offices throughout New York State over the last decade that allow for direct and frank discourse with prosecutors.
Fight Charges With a Proven Manhattan Criminal Defense Attorney Under New York law, a person can be placed “under arrest” whenever the police have reasonable cause that a person committed a crime.
Under New York law, a person can be placed “under arrest” whenever the police have reasonable cause that a person committed a crime.
At that point, the police have the legal right to restrain someone and charge him or her.

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If you have been arrested or are worried you will be arrested,  call (212) 227-8208 now for a free consultation.