Can I Get Out Of Jail While My Federal Criminal Appeal Is Pending?
If you or a loved one has been convicted in federal court and is now in jail, is in prison, and you’re bringing an appeal, one of the big questions you'll have is whether you can get out of jail pending that appeal. There is, it's possible to do that look. Let me explain a little bit have how that works.
You've got a show two things in order to get out of prison while the appeals pending.
First, you've got to show that you're not going to be a danger to anyone else and you’re not going to run. The legal standard is you've got a show by clear and convincing evidence. You've got to the same judge you were before, during the trial. And you've got a show that you're not gonna hurt anyone, you're not to be a danger to anyone, and you've also got a show that you're not going to Paris.
What clear and convincing evidence means, really is you've got to convince the judge so there's not a meaningful doubt left in that judge's mind about whether or not you're going to be a problem.
If you can do that, the second thing you've got a show is that you're likely to win and issue on the appeal, which is going to mean that you won't have prison time. So, for example, if your challenging the conviction itself you're saying that the judge just got a wrong, the jury got it wrong, I'm gonna win this appeal and when I win this appeal I'm not gonna spend any time in prison. That's the kind of issue that you can bring. The problem is of course, you're bringing that issue to the same district court judge who presided over the trial and you’re trying to convince that judge that there was something that the judge did that was that was wrong. More often than not, that can be a tough sell
The second part of that is you've 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 argued that issue on appeal. It's got to be something that’s going to mean that there won't be prison time there at all.If you can convince the judge for the court of appeals that that's right, you shouldn't spend time in prison at all, then you can be released pending appeal. Otherwise it can be a very difficult of a motion to win, but the options out there. And that's one thing you can you can raise and try to fight if you want avoid spending time in prison during the appeal.