faqs about criminal law cases

  1. WHAT IS CRIMINAL LAW?
  2. WHAT IS A CRIME?
  3. WHAT IS THE DIFFERENCE BETWEEN STATE AND FEDERAL CRIMINAL LAW?
  4. WHAT IS THE PRESUMPTION OF INNOCENCE?
  5. WHAT IS THE DIFFERENCE BETWEEN A FELONY AND MISDEMEANOR?
  6. WHEN IS A SEARCH WARRANT REQUIRED?
  7. DO I HAVE TO SUBMIT TO AN INTERROGATION?
  8. HOW LONG CAN I BE KEPT IN CUSTODY?
  9. WHAT IS THAT STATUTE OF LIMITATIONS FOR FILING CRIMINAL CHARGE?
10. HOW DOES THE CRIMINAL PROCESS WORK?
11. WHAT IS THE DIFFERENCE BETWEEN PROBATION AND PAROLE?

WHAT IS CRIMINAL LAW?

Criminal law is the body of law that defines crimes, deals and treats their nature, and establishes punishment. Criminal Law also lays out the rights of the accused, and encompasses the entire criminal process from arrest, arraignment, grand juries, pleas, discoveries, hearings, motions, trials, and post trial remedies.

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WHAT IS A CRIME?

A crime is an action or offense committed or omitted against the public or government. In order to have a crime, the act committed or omitted must be in violation of a law forbidding or commanding it and which there is a punishment upon conviction. Simply stated, any behavior that is punishable by imprisonment or fine is a crime. Usually the state legislatures or Congress determine what actions and offenses are considered crimes. In order to prove any crime, no matter how serious, the prosecutor must prove that the accused committed a guilty act with a guilty mind beyond a reasonable doubt. States of mind associated with a crime include; purpose, knowledge, recklessness and negligence.

If you or a loved one is being investigated, questioned, or have been arrested for a federal crime or state crime, early intervention by an experienced criminal lawyer is critical to assure the best possible outcome. Please feel free to call us at 1-800-INNOCENT (1-800-466-6236) and you will be connected for FREE to an experienced, local criminal attorney that will fight to protect your freedom and your future, or you can fill out the Free Consultation Form.

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WHAT IS THE DIFFERENCE BETWEEN STATE AND FEDERAL CRIMINAL LAW?

State Criminal Law covers most ordinary crimes that happen within a state against its residents. An example of a crime handled by the local state prosecutor would be robbery, if the robbery took place within the state against it’s local residents. If one is wronged in a state, the wrong doer will be prosecuted by the state for the purpose of punishment.

Federal Criminal Law is the body of Criminal Law that deals with federal property, federal employees, federal taxes, federal benefits, federally guaranteed civil rights, and crimes involving interstate commerce (transporting goods or individuals across state lines. Intentionally filing a false, misleading Federal Tax Return that under discloses one’s true income, is Federal Tax Evasion, and will be prosecuted not by the state, but by a federal prosecutor working for the federal Government.

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WHAT IS THE PRESUMPTION OF INNOCENCE?

All people accused of a crime are considered to be innocent until they are found guilty beyond a reasonable doubt. This means that the defendant need not prove anything in his defense. It is entirely up to the prosecution to prove to the jury that the defendant is guilty. Until then, the defendant is INNOCENT. If the prosecutor is unable to get a unanimous verdict by a jury, the defendant goes free. Since the defendant must be found guilty by a unanimous jury verdict beyond a reasonable doubt, the criminal justice system tries to assure that those that are innocent are not wrongly found guilty and imprisoned.

If you or a loved one has been accused, arrested, or charged with a crime, it is important not to delay and speak with a skilled, aggressive, experienced local criminal lawyer immediately that can PROTECT YOU RIGHTS!

Call 1-800-INNOCENT (1-800-466-6236) or fill out the Free Consultation Form and you will be connected FOR FREE to a local, experienced criminal lawyer that will fight for your freedom. Your lawyer will know the different tactics and strategies that can be implemented and the arguments that can be made to strengthen your case, and weaken the State’s case against you.

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WHAT IS THE DIFFERENCE BETWEEN A FELONY AND MISDEMEANOR?

There are the two main categories of crimes. The most serious crimes are called “felonies” and those crimes less serious are assigned the title “misdemeanors” .

Felonies are any crime punishable by more than one year in prison or by death. When charged with a felony you have the right to a jury.

Here are examples of some of the common law felonies:

Murde
Rape
Robber
Burglary
Kidnapping
Treason

When convicted of a felony, besides harsh prison sentences, you may forfeit a number of your rights, including the right to vote, to serve on a jury, the right to bear arms, and right to practice certain professions like being a lawyer, doctor, or teacher. Also you might be subject to the “Three Strikes Law”, which gives you life in prison if convicted of three felonies.

Misdemeanors are usually crimes punishable by less than a year incarcerated and unlike a felony where you are put in a prison, with a misdemeanor conviction, you are usually put in a local jail.

Depending on the jurisdiction, examples of misdemeanors may include:

Petty Theft Prostitution • Public Intoxication • Simple Assault • Disorderly Conduct • Trespass • Vandalism

People convicted of misdemeanors are often punished with probation, or part-time imprisonment served on weekends. The consequences for misdemeanor convictions are generally less severe than for felony convictions. A person with a misdemeanor crime on his record may still be able to serve on a jury, practice the professions, and vote.

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WHEN IS A SEARCH WARRANT REQUIRED?

If a policeman, detective or investigating officer feels a crime has been committed or is about to be committed, he can go before a judge and request a “search warrant”, that will allow him to search the suspect’s location. If given the information the officer has provided, the judge feels there is “probable cause” to support it, a search warrant will be issued

If a crime is in the process of being committed or the officer feels that evidence may be destroyed if they do not react immediately, “exigent circumstances”, a search warrant may not be required.

In a public place, a law enforcement officer may arrest a person without a warrant, if they have “probable cause” to believe that the suspect in question has committed the crime. Even if the crime was not committed in the officer’s presence, the person can be arrested. If there is not probable cause the officer may require getting a warrant to take suspect into custody. A warrant is never necessary to take a suspect into custody if a felony or misdemeanor crime was committed in the presence of the officer.

In a private place, a law enforcement officer must first obtain an arrest warrant if they wish to take a suspect into custody. There are exceptions to the arrest warrant requirement such as the possibility that the suspect will flee.

If you, or a loved one has been questioned, or investigated for a crime, early intervention by an experienced criminal lawyer is critical to assure the best possible outcome. Please feel free to call us at 1-800-INNOCENT (1-800-466-6236) and you will be connected for FREE to an experienced, local criminal lawyer that will fight to protect your freedom and who knows your rights, or you can fill out the Free Consultation Form.

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DO I HAVE TO SUBMIT TO AN INTERROGATION?

Law enforcement officers have the right to ask questions, “interrogate” witnesses, and suspects, as long as their constitutional rights are protected. You do not have to answer questions without your lawyer present. These rights are often referred to as the “Miranda Rights”. The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in a court of law, the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is too poor to hire an attorney, an attorney will be provided at no cost to represent him or her.

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HOW LONG CAN I BE KEPT IN CUSTODY?

After arresting a suspect, law enforcement has a limited time, (usually 24 to 48 hours depending on the state), to either charge them of a crime or release them.

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WHAT IS THAT STATUTE OF LIMITATIONS FOR FILING CRIMINAL CHARGE?

Aside from murder, where there is no statute of limitation for the prosecution to file charges, all other crimes and offenses have their own statute of limitation that can vary widely from state to state.

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HOW DOES THE CRIMINAL PROCESS WORK?

The criminal justice system is extremely complex. It is understandable how it can be confusing and scary. This is why it is so important, that as soon as you are facing criminal charges or an investigation, you seek to get the advice of a criminal attorney. Please feel free to call us at 1-800-INNOCENT or fill out the Free Consultation Form, and you will be connected for FREE to an experienced, local criminal lawyer that will explain the entire process and details of your case to you so you can feel more relaxed and comfortable.

Complaint, Information, Indictment, Accusation
Criminal charges can be filed by law enforcement, either before or after arresting a suspect. Law enforcement can file a “complaint” which starts the process, or the prosecutor can file written charges called “information. By filing either the complaint or information, law enforcement may be able to keep the suspect in custody.

In about half the states, and in the Federal courts, after the complaint or information, defendants have the right to indictment by grand jury, where a jury made up citizens hears the evidence from the prosecution and determines if there is probable cause a crime was committed and that the person accused committed the crime.

In some states instead of indictment by grand jury, there is a “preliminary hearing” where a judge determines if the evidence provided by the prosecution is sufficient to charge the suspect with the crime. In either case, by preliminary hearing or grand jury indictment, if there is a determination that enough evidence was provided by the prosecution to file charges, the resulting documentation is only an “accusation” that a crime was committed and that the person being charged committed the crime. In no way does it prove that the person is guilty.

Arraignment
The formal presentation of charges in a court room depending upon the state is most often called the “arraignment”. The judge will read the formal charges to the accused, now called the “defendant”. To these charges the defendant will be asked to plead guilty or not guilty. The defendant's lawyer may be present, or an attorney appointed by the court may represent the defendant.

Bail
The defendant may be asked to “post bail”. Bail, is security to help assure the court that the defendant will show up for future proceedings including trial and sentencing. Bail can be posted in the form of cash, bail bond or pledge of property (not all courts will allow this). A bail bond is an agreement with a bail bondsman under which the bondsman put up bail money in return for a fee. The bail amount is contingent upon a number of factors evaluated by the judge including the profile of the client and the seriousness of the crime he is accused of. If the judge ascertains because of the extreme seriousness of the charges or that the defendant seems like a flight risk, the judge can deny bail, or make it so high the defendant can’t conceivably meet it. In much less serious cases or in cases with a defendant well established in the community with a stable job, a home and family, bail may be relatively low, or even not required (released on one’s own recognizance).

Plea Bargaining
After charges are filed, the defendant’s lawyer, may choose to initiate plea negotiations with prosecutors. Plea negotiations, commonly called “plea bargaining” represent the attempt by the defense lawyer, to get his client a reduced or lesser charge than the complaint filed at the arraignment. The plea bargain may also include the prosecutor's agreement to recommend a particular sentence for the charges to which the defendant agrees to plead guilty. The defendant’s lawyer may want to reach a plea bargain if he is concerned with the strength of the prosecution’s case or if he is concerned by the risk of losing the trial and facing severe punishment and penalties. If a plea deal is reached between the defendant’s lawyer and the prosecution, it must then go before the court and judge. The judge will advise the defendant of his rights and make sure he understands what he is pleading guilty to. In some cases the defendant will be required to recite a “factual basis for the plea”, in which he testifies to certain facts concerning the case. This is to assure the court, the defendant is pleading guilty to a crime he committed.

Trial
Usually with serious crimes, punishable by six or more months of incarceration, if a plea agreement can not be reached, the case against the accused goes to the trial stage.

It is the right of the defendant to have a “speedy trial”. However, some defendants ask for additional time to prepare and waive their right to a speedy trial.

It is also the right of the defendant to waive the right to trial and plead guilty. Or, a defendant can waive his right to a traditional trial with a jury and choose a “bench trial”, where basically the judge is also acting as the jury.

Defendant’s might choose a bench trial rather than a jury trial due to the following situations:
Cases involving technical legal issues that a jury might not easily understand.
Cases in which the defendant fears that a jury may be inflamed by the nature of the charges and be unable      to judge the evidence in the case objectively.

If the defendant chooses to have a jury trial, his lawyer as well as the prosecution have the right to challenge potential jurors "for cause," meaning that they feel a potential juror will not be able to be objective in determining whether the accused is guilty of the crime.

Challenges to potential jurors can be made for the following reasons:
If they have preexisting knowledge or potential bias about the case.
 If they have any relationship with the prosecutor or the defendant.
 If they are incapable of hearing and understanding the testimony.

“ Peremptory challenges” can also be made but in limited numbers. A peremptory challenge means that the defendant or the prosecutor can remove a juror without giving a reason. (In federal courts peremptory challenges can not be made to affect the racial composition of the jury)

At the trial, both the defendant and prosecutor have the right to present witnesses and evidence. The prosecutor will provide witness testimony, document evidence (books deeds wills letters, etc.) and “demonstrative evidence” (photographs of the victim, or gun, etc.)

The evidence, witnesses and testimony the defendant presents will be in defense of the criminal charges. Moreover, the defendant has the right to “confront”, cross-examine the witnesses called by the prosecution. After the prosecution has finished submitting the facts of their case supported by their witnesses and evidence, the judge will “charge” the jury by giving them instructions based on the law. The prosecution and defense lawyers will then make their closing arguments based on the evidence and the law. (The order of these events can vary from court to court.)

It is possible, but highly improbable, on rare occasions the court will dismiss the charges against the accused at the conclusion of the prosecutor’s presentation of evidence. This can occur if the court rules the prosecutor did not present sufficient evidence to support any of the elements of the charge or did not present enough evidence to support a guilty verdict. In these cases the court can enter a not guilty plea without submitting the case to a jury for deliberation.

The Verdict
After the case is presented, the jurors “retire” to deliberate in secrecy. This can take anywhere from minutes to weeks. They ponder over the evidence to determine if the prosecution proved beyond a reasonable doubt that the defendant indeed committed the crime or crimes of which he was accused.

Upon reaching a decision, “a verdict”, the jurors reconvene in the courtroom to make their finding read to the defendant. There are at least four potential outcomes:

A jury may find the accused guilty of none of the crimes charged.

A jury may find the defendant guilty of some, but not all charges.

A jury, (if the judge’s sentencing instructions permit), may convict the defendant of a lesser crime other than     that which they were charged.

A jury might, after long deliberations, find they are hopelessly deadlocked where at least one juror does not     side with the majority. Most criminal cases require unanimity. This outcome would be called a “hung jury”.

Possible scenarios after the verdict:

If the verdict is guilty, the defendant may have a right to appeal if an error has been committed in the process of obtaining a conviction.

If the verdict is not guilty, the court or the prosecutors cannot overturn the jury's verdict.

If there is a “hung jury”, the prosecutor can start over and retry the case. If the prosecutor chooses not to retry      the case, the defendant “walks” without punishment or penalty.

Appeal
It is the right of every defendant found guilty of a crime to appeal their case to at least one level of appellate court. Usually it is a mid level appeals court that hears the appeal. Criminal case verdicts of guilty can be appealed based on legal error during any stage of the criminal process.

These errors may include:

Non-sufficient evidence to support a guilty verdict.
Evidence provided by the prosecution that should not have been admissible or was in violation of the     defendant’s rights.
Mistakes in the judge’s instructions (“charge”) to the jury.

Criminal cases can also be appealed based on misconduct of a jury, or juror.

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WHAT IS THE DIFFERENCE BETWEEN PROBATION AND PAROLE?

Both probation and parole represent ways that those convicted of crimes can avoid or minimize their time spent incarcerated in jail or prison. A condition of both, is that the offender must maintain “good behavior” or they are put back in jail.

Both parole and probation are served in the community under supervision. Terms of one’s probation may include, not drinking, or taking drugs, mandatory drug testing, community service, paying fines, maintaining gainful employment, and going to required counseling.

The major difference between probation and parole is that probation is part of the offender's initial sentence, whereas parole comes much later, allowing the offender early release from a prison sentence. When serving probation, if the offender violates any terms of it, he can be sent back to jail to finish his sentence.
Parole, on the other hand, is a conditional early release from prison based on how well they behave in prison. The amount of time taken off the end of their original prison sentence is called "good time." For every day an inmate behaves properly in prison, good time may be awarded.

You need an experienced criminal defense lawyer with the experience and skills to go head-to-head with the prosecution and question and verify all the evidence to ensure the best possible result, either through negotiation or trial. Don’t delay! Call 1-800-INNOCENT (1-800-466-6236) right now or fill out the Free Consultation Form and get connected FOR FREE to an experienced, local criminal lawyer who can determine how strong your case is and start preparing the best possible defense to protect your freedom and your future.

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