Information and Frequently Asked Questions Regarding Criminal Law

 What does it mean to be Arrested?

 What happens after I am Arrested? Booking and Bail.

 What happens at an Arraignment?

 What is the difference between Criminal Law and Civil Law?

 Fingerprinting and Line-ups

 Jury Trials

 Pleading Guilty vs. Not Guilty

 What is a Plea Bargain?

 What happens at a Preliminary Hearing?

 Questioning

 What is the role of the judge in a criminal trial?

 What is the role of the jury in a criminal trial?

 Search warrants & The Fourth Amendment

 What happens at a Sentencing Hearing?

Being Arrested:

An arrest happens when a person is verbally told by a police officer “you are under arrest,” or when a person’s freedom is significantly restrained (being handcuffed or held in the back of a police vehicle) by a police officer. Police may also detain a person without arresting them in order to gather more information on the crime they believe took place. An officer does not have to read a person their Miranda Rights if they are detaining them, but anything you say can still be used against you in Court. It is important to remember that you are never under any obligation to answer questions asked by the police. If you are not sure whether you are being detained, ask the police officer whether or not you are free to go.

Booking and Bail:

After a person is arrested they are usually brought down to the station to be booked and have bail set. Booking is the formal record of the charges against you and bail is the money you deposit to guarantee your appearance in Court for arraignment. The amount of bail set depends on what state or county you live, the seriousness of the charges against you and the degree of certainty the police or judge have that you committed the criminal act. In some instances, bail will not be set until a Judge reviews the charges against you. Sometimes a suspect is released from jail on a “promise to appear” and does not have to deposit any bail money. Alternatively, the Court may choose not set bail if the alleged act is particularly heinous or they believe the suspect is likely to leave the state or country in order to avoid trial.

Arraignment:

An arraignment is a person’s first appearance in Court after they have been arrested and booked. This is the when the accused enters their plea, usually either “guilty” or “not guilty.” If the accused has not yet retained a lawyer to defend them in Court, a “not guilty” plea should be entered and they should then ask the judge to appoint a lawyer to defend them. If there was no previously issued warrant for the arrest of the defendant, the U.S. Supreme Court has ruled that an arraignment must take place within 48 hours after the arrest so that a judge can determine whether there was probable cause for the arrest to take place.

Criminal Law vs. Civil Law:

Criminal Law deals with acts which the state or federal government has classified as a crime. Civil Law deals with the rights of individuals to seek retribution for acts that they perceive as having violated an agreement or an exchange from other individuals or companies.

There are several distinct differences between Criminal cases and Civil cases. Criminal cases are initiated by a prosecutor under the authority of a state or the federal government to punish a defendant for an act which the state or federal government has classified as a crime. A prosecutor does not need a victim’s consent to charge a defendant with a crime. Alternatively, a prosecutor can refuse to file charges even if the victim wants them to. In Civil cases, a victim or “plaintiff” initiates the case to settle a disagreement over rights, property or monies that they believe they are entitled to from another individual or organization. A defendant in a Criminal case can be sentenced to jail or have a monetary fine handed down. In Civil cases, a defendant may be ordered to repay the victim a sum of money or property but cannot be sentenced to prison. A prosecutor in a Criminal case must prove to a judge or jury “beyond a reasonable doubt” that the defendant is guilty of the crime. In Civil cases the plaintiff only has to show a “preponderance of the evidence.” In some cases an act may violate both Criminal and Civil law and a person can be criminally prosecuted by the state as well as civilly sued by the victim.

Fingerprinting and Lineups:

When a person is arrested the police have the right to fingerprint them and take photographs. They may also require a person to participate in a line-up if the alleged victim believes they can identify their attacker. Additionally, the police also have the right to request a handwriting sample and have the accused speak phrases associated with the crime. It may be in your best interest to have an attorney present during these procedures.

Plea Bargains:

A plea bargain is a method of settling a criminal case without going to trial. A plea bargain can be entered when the prosecution and defense agree to charges (usually lesser than the original charges) and a punishment.

Preliminary Hearings:

At a preliminary hearing the prosecutor will present the evidence and any witnesses that prove that it appears an offense has been committed and that there is probable cause that the accused committed the crime. The defense may cross-examine witnesses or try to disprove the evidence presented as well as present their own evidence and witnesses. A judge will then decide if there is enough evidence that a crime took place and that the accused likely committed it. If a judge finds that there is not sufficient evidence for the trial to go forward, the charges will be dismissed and the defendant discharged. If a judge finds that there is sufficient evidence, the charge is sent to a grand jury.

Questioning:

Police can request that a person come with them to the police station for questioning but cannot force a person who is not under arrest to be questioned. Often it is a witness that is asked to accompany police to the station for questioning but in some instances where there is not probable cause to arrest a suspect, police may request that the suspect come down to the station with them. If you believe that you are a suspect it is always best to have an attorney present during any police questioning.

The role of a Judge in a Criminal Trial:

A judge assigned to a criminal case oversees the proceedings in the courtroom and decides whether certain evidence is admissible or not. Before a case is sent to the jury for a verdict the judge will instruct them on how the law guides them in the particular matter.

The role of a Jury in a Criminal Trial:

Every person accused of a crime is entitled to a trial by a jury of their peers. A jury is a group of twelve citizens chosen at random who take an oath to honestly, fairly and impartially hear a case. A jury will listen to all the evidence and facts of the case and then be advised by the presiding judge on how the law suggests that they proceed. For a jury to reach a verdict of “guilty” all twelve jurors must agree that the defendant is guilty beyond a reasonable doubt. Juries decide guilt or innocence on each charge separately. For example, if a person is standing trial for reckless endangerment and manslaughter, they may be found guilty of one charge and not of the other. A jury will gather in private for as long as needed in order to reach a verdict.

Search Warrants & The Fourth Amendment:

A search warrant is an order issued by a judge giving police permission to search a specific area of a person’s home or property in order to obtain evidence. “Probable cause” must be proven to a judge in order for them to issue a search warrant. That means that the police must be able to explain to a judge why they believe there is evidence in that specific location and that there is a good chance the evidence is still there. A hunch or a guess on the part of the police is not enough for them to obtain a search warrant. Without a search warrant, police cannot legally search your home or property or seize anything unless you give them permission to.

The Fourth Amendment to the U.S. Constitution guarantees citizens freedom from unreasonable searches and seizures. In Court, if a search is challenged by the defense as “unconstitutional,” they are referring to the Fourth Amendment. For a judge to consider a search unreasonable, the defense must illustrate that the accused had an expectation of privacy in the area that the search was conducted. For instance, if police in a public park see and seize a weapon that they can plainly see sticking out of a person’s bag, that person would have a hard time proving that they had any expectation of privacy because they were in a public place and it was clear that they had a weapon. Alternatively, police could not search your home or car simply because they think you might be in possession of a weapon.

Sentencing Hearings:

If a person has been found guilty, the Sentencing Hearing determines the punishment for the crime they have committed. While a jury’s sole duty is to determine the guilt or innocence of a defendant, it is most often the judge that will prescribe the punishment. During a Sentencing Hearing, both the prosecution and defense can present more evidence, facts or witnesses to illustrate what they believe the proper sentence should be. However, a judge is under no obligation to respect any of those opinions even if the prosecution and defense agree on a punishment.