Can I Get Out of Jail While My Federal Criminal Appeal is Pending?

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Explore:  Appeals Convictions Prison
Matt Kaiser, a Washington DC federal criminal defense attorney at The Kaiser Law Firm PLLC (http://www.tklf.com), discusses what has to happen to be released from prison while an appeal is pending in federal court.

If you'd like more information for people facing federal criminal charges, under investigation for a federal crime, or trying to appeal a criminal conviction in federal court, please visit our webpage See more +

Matt Kaiser, a Washington DC federal criminal defense attorney at The Kaiser Law Firm PLLC (http://www.tklf.com), discusses what has to happen to be released from prison while an appeal is pending in federal court.

If you'd like more information for people facing federal criminal charges, under investigation for a federal crime, or trying to appeal a criminal conviction in federal court, please visit our webpage at:

http://www.thekaiserlawfirm.com

If you'd like more information, you can read our blog - which describes every published opinion in a federal criminal appeal where the defendant wins - you can read it here:

http://www.federalcriminalappealsblog...

Video Transcript:

If you or a loved one has been convicted in Federal court and is now in jail, is in prison and you are bringing an appeal, one of the big questions you will have is whether you can get out of jail pending that appeal. There is - it's possible to do that. Let me explain a little bit of how that works. You have got to show two things in order to get out of prison while the appeal is pending. First, you have got to show that you are not going to be a danger to anyone else and you are not going to run. The legal standard is you got to show up. By clear and convincing evidence, you have got to go to the same judge you were before during the trial, and you have got to show that you are not going to hurt anyone, you are not going to be a danger to anyone and you have also got to show that you are not going to perish. What clear and convincing evidence means, really, is you have got to convince the judge so there is not a meaningful doubt left in that judge’s mind about whether or not you are going to be a problem.

If you can do that, the second thing you have got to show is that you are likely to win an issue on the appeal, which is going to mean that you won't have prison time. So, for example, if you are challenging the conviction itself you are saying, “…the judge just got it wrong, the jury got it wrong. I am going to win this appeal and when I win this appeal I am not going to spend any time in prison. That’s the kind of issue you can bring. The problem is, of course, you are bringing that issue to the same district court judge who presided over the trial and you are trying to convince that judge that there was something that the judge did that was wrong, more often than not, and that that can be a tough sell.

The second part of that is you have got to convince the judge that whatever the error was mattered. So, for example, if you were sentenced to five years in prison and your argument is: “I should have been sentenced to only three years in prison”, they won't let you out of prison while you argue that issue on appeal. It's got to be something that's going to mean there won't be prison time there at all. If you can convince the judge or the court of appeals that that’s right - that you shouldn’t have spent me time in prison at all, then you can be released appending an appeal. Otherwise it can be a very difficult motion to win. But the option is out there and that’s one thing you can raise and try to fight if you want to avoid spending time in prison during the appeal.

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Topics:  Appeals, Convictions, Prison

Published In: Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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