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Frequently Asked Questions
Police suspects that I may have been involved in a crime and are requesting that I come in to speak to them. Do I need to bring an attorney with me when I go in to give police a statement?
If you are suspected of a crime and police request that you provide them a statement, you need to protect yourself by consulting with an attorney who can accompany you while you are being questioned by police or who may advise you deny police’s request to give a statement. Police are trained at extracting information from people and may ask questions that seems harmless to a lay person but may have devastating consequences for you down the road. To avoid incriminating yourself, you should not speak to police without an attorney present. It is important to keep in mind that whatever you say to police can be used against you at a trial. We have heard many horror stories of people who provided statements to police without counsel present and many of them claimed that police exaggerated/embellished their statements or outright lied by accusing them of confessing to a crime that they did not commit. Even if you are innocent, you need to have an experienced attorney present when you talk to police so that your words are not used against you at a later date.
I have been charged with a crime. What are the steps in the process from beginning to end?
If you have been charged with a crime, you may be wondering how the case will be resolved and what will happen during this process. Below we will explain what you should expect when charged with a crime.
Step 1 Arrest:
The first step in the criminal process is an arrest. An arrest may be made where police believes they have probable cause that you committed a crime. If you are arrested, police will file a complaint and present you to a magistrate for a preliminary arraignment.
Step 2 Preliminary Arraignment:
After you have been arrested, police will present you to a magistrate for a preliminary arraignment within 6 hours of your arrest. At the preliminary arraignment, you will receive a copy of the complaint, you will be notified of the charges against you, the magistrate will set a bail for you, and you will be given a date for when your preliminary hearing is to take place. No testimony will be taken at the preliminary arraignment.
Step 3 Preliminary Hearing:
The rules require that a preliminary hearing be held within 10 days after your arrest/preliminary arraignment. The preliminary hearing is an important step in the criminal process because this is your first opportunity to see what type of evidence the government has against you. This is a critical step because at this phase you can learn important things about the government’s theory of the case, which may provide you insight on how to defend against the case later. Also, you have a right to subpoena witnesses, evidence and to testify at the preliminary hearing. It is important to note that we rarely have our clients testify at a preliminary hearing because we do not want them to get locked into certain testimony or have them potentially incriminate themselves this early in the process. At the preliminary hearing, the government has to establish a prima facie case against you in order for the magistrate to bind the case over to the preliminary hearing. Establishing a prima facie case is the lowest standard of proof in our judicial system and the case will be bound over for court if the government can show that a crime took place and you likely committed it. This is a much lower standard than proof beyond a reasonable doubt, which is the burden of proof the government must satisfy to convict you at a trial. If the magistrate judge finds that the government established a prima facie case, you will receive a notice of your formal arraignment at the conclusion of the preliminary hearing, which is usually held 30-60 days later.
Step 4 Formal Arraignment:
At the formal arraignment you will be provided a copy of the criminal information filed against you which contains the charges filed against you, you will be notified of important deadlines like your deadlines for requesting discovery, filing pre-trial motions and filing a bill of particulars and you will enter a not guilty plea at this step. Also, you will indicate whether you wish for your case to be listed for trial or scheduled for plea court. No testimony will be taken at this step. In a majority of cases, the case is scheduled for plea court before listing a case for trial. A defendant can opt to skip step 5 and have his/her case scheduled for trial.
Step 5 Plea Court:
In some counties, this step is also referred to as miscellaneous court. Before you are scheduled to appear at plea court, your attorney will discuss with the prosecutor a possible plea agreement. If you and the prosecutor agree on a resolution of the case, the court will typically accept your plea agreement but the court has the authority to reject a plea agreement. If the court rejects a plea agreement, the Defendant has a right to proceed to trial, enter an open plea or come up with a different plea agreement to present to the court.
Step 6 Bench/Jury Trial:
If your case could not be resolved at plea court or if you opt to skip plea court, your case will be ready for trial. In Pennsylvania, your case must be scheduled for trial within 360 days after the complaint was filed against if you were not held in prison during the pendency of the trial and if you are held in confinement while the case was pending, your trial must be held within 180 days from the time the complaint was filed. It is important to note that any continuances requested by a defendant or his attorney will expand the time that the Commonwealth has to bring the case to trial. If you a bench trial, you will skip many of the steps in a jury trial and such as jury selection and opening statements. At a jury trial, the first step is jury selection where the Commonwealth and the Defendant will ask questions of the jury panel before picking a jury. After a jury is picked, the Commonwealth and the Defendant will make their opening statements summarizing to the jury the evidence they will present. Next, the Commonwealth will present its case by offering witnesses and evidence followed by the Defendant who will have an opportunity to present its evidence and witnesses. A Defendant does not have to call any witnesses and may waive his right to testify or present a case. After the Commonwealth and Defendant finishes the presentation of their cases, the Defendant’s attorney will provide closing arguments followed by the Commonwealth who will then provide closing arguments. After closing arguments, the judge will give the jury its charge/jury instructions. If you are found not guilty of all charges, the process ends. However, if you are found guilty of an offense, the court will schedule sentencing at a later date.
Prior to sentencing the court will order a Pre-Sentence Investigation (“PSI”) to assist the Court with fashioning an appropriate sentence. At the sentencing hearing, both sides will have an opportunity to present witnesses and make arguments and recommendations as to the court’s sentence. Also, the Defendant will be given the opportunity to address the court before the court decides his/her sentence, which is call allocution. Next, the court will enter its sentence and advise the Defendant of his post-sentencing rights and appeal rights.
Step 8 Post-sentencing Motions/Appeal:
After sentencing, a Defendant has 10 days to file post-sentencing motions. If the Defendant files a post-sentence Motion, he has 30 days from the time the court rules on his post-sentencing motion to file an appeal. However, if a Defendant does not file a Post-sentencing motion, the Defendant has 30 days from the date of sentencing to file a Notice of Appeal to the Superior Court.
What are the requirements for a person to file for divorce in Pennsylvania?
In order to file for a divorce in Pennsylvania, either the Plaintiff or the Defendant must be a bona fide resident of the Commonwealth of Pennsylvania for at least six (6) months prior to filing for divorce. If neither the Plaintiff (the spouse filing for the divorce) nor the Defendant (the spouse being sued for divorce) have lived in the Commonwealth for 6 months, Pennsylvania does not have jurisdiction to enter a divorce decree.
Where should I file the divorce complaint?
Where a divorce complaint can be filed is determined by the domiciles of the spouses. If both spouses live in separate states, the divorce complaint may be filed in the state where either spouse is a resident provided they both have lived there for the requisite time provided by law in that state (six months in Pennsylvania). If both parties have resided in Pennsylvania for six months, the divorce can be filed in the Court of Common Pleas of the County where either party have resides.
What types of claims can a person raise in a divorce?
Parties to a divorce may raise the following claims in a divorce action:
- Division of marital property
- Alimony- an order support that a spouse pays support to a former spouse for a period of time after a divorce has been entered
- Alimony Pendente Lite-temporary support one spouse pays to another spouse while the divorce is still pending.
- Child Custody
- Counsel fees
Does my spouse have a right to some of my military retirement benefits?
A state court has the power to award one spouse a portion of another spouse’s military retirement benefits, but the parties must have been married for a minimum of ten (10) years before a spouse can be awarded military retirement benefits. Under federal law, a state court does not have the power to award military retirement benefits to another spouse where the parties have been married for less than 10 years. Federal law supersedes state law so there are no exceptions to the 10 years of marriage requirement to be entitled to a portion of another spouse’s military retirement benefits. Please note that non-military retirement benefits can be divided by a court even if the marriage did not last for ten (10) years.
Will a court automatically award primary physical custody to a mother over a father?
This is a very common question received that we receive from fathers, and the short answer to this question is NO. In fact, Pennsylvania law explicitly bans courts from giving a presumption that primary physical custody should be awarded to a particular parent and the courts are required to consider a list of factors in making custody awards to decide what custody arrangement is in the best interest of the child. After careful consideration of the custody factors, the court will decide what custody arrangement that is in the best interest of the child, and the law instructs the court to apply those facts in a gender neutral manner. We have helped many fathers and mothers win primary physical custody of their children by proving to a court that it was in the best interest of the child to do so. We can help you fight to protect your custody rights.
What factors does a court consider in awarding custody?
In awarding any form of custody, a court must consider the best interest of the child by considering a set of factors. Below is an example of some of the factors a court considers in awarding custody:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
- The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child's education, family life and community life.
- The child's sibling relationships.
- The well-reasoned preference of the child, based on the child's maturity and judgment.
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- Each party's availability to care for the child or ability to make appropriate child-care arrangements.