According to H.P. Lovecraft, an American writer, “The oldest and strongest emotion of mankind is fear, and the oldest and strongest kind of fear is fear of the unknown.”
People going into a government investigation or facing criminal charges know what I’m discussing.
I’m Michael Santos, founder of Prison Professors. We launched our nonprofit to offer resources for justice-impacted people who want to help themselves. Getting help starts with understanding. If people don’t understand the process, they lack clarity on different mitigation strategies they may engineer.
The best time to avoid complications from a government investigation or criminal prosecution may have been years or decades ago. But the second-best time is today. Start by understanding the process.
The presentencing process includes many stages, which I will attempt to explain below:
Sometimes, people have a hard time understanding the nature of a government investigation. Authorities may learn of some crimes in real-time. For example, a law-enforcement officer may watch a crime take place. That can launch an investigation. For white-collar crimes, or transaction-based crimes, the investigation may begin in secret:
- A conspirator may get caught doing something wrong and offer information, which can begin an investigation,
- Officials in a financial institution may become suspicious of transactions. To show their commitment to law-abiding behavior, those officials may notify law enforcement, which can trigger an investigation.
- A whistleblower may pursue a reward by notifying law enforcement of a crime.
Once authorities become aware of a potential crime, investigators start asking questions. They place people in one of three categories:
- A witness to an investigation
- A witness to the investigation may be someone with knowledge of how a business operates. Investigators may approach the person in secret and ask the person to keep the conversation confidential. The investigators want to understand what is going on.
- A subject of an investigation
- When investigators suspect that a person may have some involvement in a crime, they may assess whether the person can bring value by providing detailed information about the principles of the crime. They may determine whether they want to elevate the person of interest to become a target for prosecution.
- A target of an investigation
- When authorities have spoken with enough people and reviewed sufficient documents, they will identify the target of the investigation—the people they intend to charge. If authorities identify a person as a target of an investigation, a criminal charge will likely follow.
Prosecutors may choose a pre-indictment proceeding and bring criminal charges through a “criminal information” or a criminal complaint. Or they may decide to convene a grand jury.
- Criminal Information / Criminal Complaint:
- Prosecutors may attempt to persuade a target to plead guilty during a pre-indictment proceeding. They will typically offer an inducement to avoid a trial. For example, prosecutors may agree to bring a charge that does not have a mandatory-minimum sentence or charge a crime with a lower statutory cap.
- Grand Jury Indictment
- If the prosecutor and target do not resolve the matter earlier, prosecutors may convene a grand jury. A grand jury is a group of citizens that listen to the prosecutor present evidence. The evidence may include documents or live testimony from witnesses. Since a defense attorney is not present during grand jury proceedings, the grand jurors only hear the prosecutor’s version of events. The prosecutor will ask members of the grand jury to indict the target.
If the prosecutor and defendant agree to a pre-indictment charge, the prosecutors may authorize the target to surrender to court for an initial appearance before a judge. When prosecutors bring charges through a grand jury indictment, they may choose a more aggressive stance. Teams of FBI agents or other law enforcement officers may storm the person’s residence or place of business to make a public arrest. They will take the person away in handcuffs. Depending on the time of day, the law enforcement officers will take the person to a federal courthouse or detention center.
Ordinarily, within 72 hours of the arrest, officers will transport the person to a courthouse for an initial appearance before a judge. Before the judicial meeting, an officer of the court will ask the defendant questions. The pre-trial officer will want to gather information to give the judge a sense of the person’s ties to the community.
During the initial appearance hearing, a prosecutor will recite the charge against the person and ask the judge to set a bail amount.
A defense lawyer will advocate on behalf of the defendant. If the defendant doesn’t have a lawyer, the court will appoint a lawyer. The judge will ask the defendant to enter a plea. Unless there is a previously negotiated plea agreement, most defendants will plead not guilty at the initial appearance. The judge will set conditions for bail, or the judge will order the defendant into custody.
During the pre-trial proceedings, the prosecutors should present the defense team with the evidence they’ve gathered. The defense team will review the evidence and decide whether to proceed through trial or negotiate a plea bargain.
In exchange for a rapid resolution, the prosecutor may choose to offer a plea agreement. The Constitution provides every defendant with the right to trial, yet if the defendant loses at trial—in most cases—the defendant will face a much harsher penalty. Most people accept plea bargains to facilitate the likelihood of a lower sentence. To qualify for an even lower sentence, a defendant may agree to cooperate with authorities and help prosecutors bring cases against other people.
Change of Plea:
If the prosecutor and defendant agree to a plea bargain, the next step will be a change-of-plea hearing. The change-of-plea hearing is a relatively simple procedure. The judge recites the charges that the prosecutor brought against the defendant. Then, the judge will ask the defendant a series of questions. Those questions will help the judge ascertain whether the defendant is entering the plea knowingly and voluntarily.
If the defendant meanders or fails to convince the judge that he is guilty, the judge may reject the plea bargain. Defendants often agree to plead guilty to a charge, even though the defendant doesn’t honestly believe he is guilty. Yet pleading guilty is the only way for the defendant to minimize exposure to higher risk levels for himself or others.
To reap the benefits of a plea agreement, the defendant must convince a judge that he understands the charge and that he enters the guilty plea voluntarily, with the full knowledge that the plea agreement does not bind the judge.
The rules of criminal procedure include a provision for a “conditional” plea agreement under 11-c-1-c. This specific plea agreement allows the defendant and the prosecutor to agree on an appropriate sentencing cap. The judge retains the discretion to accept or reject the plea agreement. But if the judge agrees with the 11-c-1-c plea agreement, the judge also agrees with the sentencing deal.
Once there is a finding of guilt—by plea or judicial finding—the judge will order the US Probation Department to conduct a presentence investigation. A probation officer will get the prosecutor’s version of events. The probation officer will attempt to interview other people, including the defendant.
The probation officer will write a report from all the information, known as the presentence-investigation report (PSR). The PSR will consider factors that influence how prison administrators classify the person and whether the person will become eligible to participate in programs that could lead to early release.
The PSR includes the probation officer’s sentencing recommendation based on all information and the US Sentencing Guidelines.
Before the sentencing hearing, the defendant and the prosecutor will review the PSR. If they disagree with the probation officer’s recommendations, each side can file objections with the court.
For more information on matters to consider before sentencing, we recommend the following comprehensive articles from our website: