I titled this “Interesting Information” because I hope you will never find yourself in criminal trouble. A friend of mine in junior high(middle school) is a excellent example of the slippery slope that you need to watch out for. He began drinking liquor around the 8th grade to get a little silly before school dances. His use of liquor became more frequent and led to the use of marijuana in high school. Late in high school he began to use harder drugs like cocaine. He eventually was charged with possession with the intent to distribute. He was a college student dealing drugs. He ended up spending from the time he was 20 to almost 28 in prison. He was a solid student (3.5 G.P.A.) and an exceptional athlete. Even though, I have shared his story with hundreds of my students, I still see many students with the same “they’ll never catch me” attitude doing things that will get them in trouble. Unfortunately, what many people your age don’t realize is how a criminal record can impact your future educational options and career choices. In addition, the computer age has made it very difficult for people to move and leave their past history behind. It is very easy to find out about someone’s past wherever that past might have occurred. So, the purpose of this section on criminal law is to give you a basic understanding of how our criminal justice system works and some of the more common categories of crimes. I hope this section allows you to better understand the stories you hear in the news, problems you or your friends might have, and help you make the decision not to engage in criminal behavior. There are two primary categories of crimes; felonies and misdemeanors. Felonies are serious crimes like armed robbery, arson, car jacking, rape, assault with intent to do great bodily harm, drug dealing, and murder. This is only a partial list but the thing to remember about felonies is that you will have over one year in prison if convicted. Misdemeanors are lesser offenses like assault, reckless driving, drug possession(small quantity), and shoplifting. Misdemeanors usually result in jail time up to a year if convicted. It’s important to understand the difference between jail and prison. Jail is usually run by the county and houses people serving misdemeanor sentences and waiting to have their felony or misdemenor trial in that county. For all of you who might commit little misdemeanor crimes, keep in mind those people awaiting trial in the county jail are the people charged with felonies who are too dangerous to release or nobody will post their bail. Prisons are usually run by the state and house people who have committed felonies. The burden of proof in criminal cases is guilt beyond a reasonable doubt. This means the prosecutor must prove all of the elements of the crime. The jury will be told to find the defendant not guilty of the crime charged if the jurors’ think that the prosecutor has not proven all of the elements of the crime beyond a reasonable doubt. Crimes are usually broken up into two pieces, did the defendant commit the criminal act and did the defendant have the required mental state at the time the defendant committed the crime. The act is called the actus reus and the mental side is called the mens rea. These terms are from the latin language as are many legal terms. The actus reus(act) must be a voluntary act by the defendant. An armed robber must choose to approach a person with a gun and demand their money, MP3 player, and cell phone. The mens rea(mental intent) means the defendant must have the required mental state at the time of the crime. The mens rea for some crimes will be satisfied only by the fact that the defendant committed the act. For some crimes the prosecutor will need to prove that the defendant had the specific intention to commit the crime. There has also been a movement to make it simpler to understand this mental side of the crime. The Model Penal Code that many states have looked to for guidance in writing their criminal laws sets four levels of mental responsibility for criminal acts; (1) purposely, (2) knowingly, (3) recklessly, and (4) negligently. Regardless of which system a jurisdiction has adopted it will be the prosecutor’s job to prove beyond a reasonable doubt both sides of the crime; the actus reus and the mens rea. There are some defenses that a person charged with a crime can bring up to try to negate either the actus reus, mens rea, or both. Duress: The defense of duress can be used if someone threatened immediate harm to the defendant if they did not commit the criminal act. The defendant’s fear of the immediate or imminent serious bodily injury or death must be reasonable. An important thing to remember about this defense is that if the defendant placed themselves in a situation where it is likely they will be placed under duress they will lose this defense. For example, if you join a youth gang that directs you to commit armed robbery or they will severely beat you, you will not have the benefit of this defense because you chose to join the gang. Infancy: The common law viewed children much differently than our current courts and legislatures. Under the common law, children under 7 were presumed to have no criminal capacities, between 7-14 children were presumed to have no criminal capacity but if you could show the child’s anger or awareness of the wrongfulness of the act you could take away that defense, and if the children were over 14 they were treated as adults. Most states now prosecute children in juvenile court systems, but there is an increasing trend in our country to try juveniles as adults if the crime was serious or the child has a pattern of criminal behavior. Insanity: You have all probably heard of criminals who have claimed insanity as a defense. The defense of insanity has been around for quite some time in some form. There are a few different tests that might be used to define insanity. The most common test is called the M’Naghten Test. The M’Naghten test states that at the time of the crime the defendant was suffering from a mental defect at the time of the crime that took away the defendants ability to understand the nature and quality of the crime or did not know what he/she was doing was wrong. In most states the insanity defense is called an affirmative defense, the defendant must come forward with evidence to prove that they were insane at the time of the crime. Claiming insanity does not mean the defendant will walk free. In the majority of jurisdictions the defendant will be immediately placed in a mental institution. Whether or not the defendant will ever be released from the mental institution depends on each state’s unique sentencing and placement laws. Intoxication: If the defendant was intoxicated at the time of the crime there may be some defenses that the defendant can raise. Intoxicated includes being under the influence of alcohol or drugs. If the defendant was voluntarily intoxicated(went out and got drunk on their own) there are fewer options because the defendant chose to get intoxicated. However, because some crimes necessitate that the defendant have some type of specific mind set at the time of the crime it might be possible to argue that the defendant couldn’t have that mindset because they were intoxicated. If the defendant was involuntarily intoxicated (someone spiked their drink or forced them to drink), it is easier to argue that the defendant did not know what they were doing at the time. Most jurisdictions give more breaks to people who have been involuntarily intoxicated. Necessity: The defense of necessity can be used when the defendant’s act was brought about by some event or situation that caused the defendant to feel they needed to take some type of action to avoid some harm or danger. For example, If your car breaks down on the interstate in the middle of winter and you break in to someone’s house so you don’t freeze. You would argue that it was a necessity that you leave your car so you wouldn’t freeze to death. Usually the court will look at whether or not there was an alternative and some type of harm imminent. Self-Defense: Self-defense can be a complete defense which means that the defendant will be acquitted of all charges. The defendant must feel that they are about to be unlawfully touched by someone else. However, if you do feel you need to defend yourself from attack, your defensive actions must not be more than are reasonably needed to protect you from the harm. For example, if you feel someone is going to attack you and you hit them and they fall down and aren’t getting up, you can’t them stomp or kick them just to make sure. You can’t use deadly force unless you were resisting deadly force. In addition, if you have the ability to retreat safely you should retreat. I know this is a very upsetting concept to many people your age, but if you are not in your home or place of work, you should retreat if you have the ability to retreat. This will save you any chance of prosecution if you somehow end up being accused of being the aggressor. There are a number of names in criminal law for the people who participate in a criminal act. The typical names used are the principal, accomplice, accessory before the fact, and accessory after the fact. The principal is the person who commits the crime. The accomplice is a person who helps the principal commit the crime. The accessory before the fact is the person who gives the principal some information that enables the principal to commit the crime. The accessory after the fact is someone who knows the principal committed a crime but helps the principal get away or conceal the fact that they have committed a crime. Most jurisdictions now just use principal and accomplice. The key concept to understand with accomplices is that you can be found guilty as an accomplice if you aid, abet, encourage, or assist someone who commits a crime. So, if you are the individual who tells your friend when the grocery store where you worked has the most cash knowing that your friend intended to rob the store. You will be charged with the same crime as your friend who went into the store and committed the robbery. It is very important to remember that the accomplice must have intended to assist with the crime. The accomplice will also be responsible for any additional crimes that are the “natural and probable” results of the crime the principal committed. So, if you did help your friend rob the grocery store and your friend shot the manager when they were robbing the store the accomplice will also be charged for the murder of the manager. An accomplice can say they tried to withdraw from the crime as a defense. In order to withdraw from the crime the accomplice must undo whatever aid or encouragement they gave to the principal. Each jurisdiction has its own unique view on accomplice withdrawl so check your state’s statute on accomplice liability. In some states it is necessary that the principal not succeed in committing the crime for an accomplice to completely withdraw from the crime. Getting Ready to Commit the Crime Attempt If a person attempts to commit a crime, they can be charged with the attempt. Most states have passed laws that make it a crime to attempt to commit a crime. Typically to be found guilty of attempt you must have the mental intent (mens rea) for the crime and take some substantial step toward committing the crime. It is possible to renounce (this means deciding not to commit the crime) the attempt to commit the crime, but the person must voluntarily change their mind. For example, if Bob is going to rob a party store and is walking from the soft drink coolers and pulls his gun from his jacket pocket he might be charged with attempt. If he decides not to rob the party store and puts the gun back in his jacket he could argue he renounced the crime. If he decides not to rob the party store because a police officer walks in the party store to buy a cup of coffee, he did not renounce the crime because it was the presence of the police officer that made him change his mind not his own conscience. A conspiracy is when two or more people plan to commit some criminal act together. All that is needed to satisfy the mental intent necessary for a conspiracy is that they intended to engage in the criminal act. Some states require that the people involved in the conspiracy take some direct action toward committing the crime. It is possible for one of the people involved in the conspiracy to withdraw from the conspiracy, but most states require that the person who is pulling out must take steps to stop whatever crime the conspiracy involved. This usually means the individual must notify the police of the conspiracy. Solicitation is when someone requests or encourages another person to commit a crime. For example, Chuck asks Lou if he would beat up his ex-girlfriends new boyfriend Jim. Chuck would be charged with solicitation. It usually is not necessary for the person to agree to commit the crime. By asking the person to commit the crime you have broken the law. Some jurisdictions allow the solicitor to renounce the crime but the solicitor must usually take steps to make sure the person solicited does not commit the crime. You have all probably heard the names of crimes like assault and battery, murder, robbery, arson, rape, and breaking and entering. This portion of the website gives some general information about what it takes legally to be found guilty of a variety of crimes. Remember this is general information and your state may have defined a crime a little differently or even given it a different name. Arson: Arson is when an individual sets fire to a piece of property like a building or house, or even a piece of personal property like an expensive jacket. The key with arson is that it must be done intentionally. In many states there are different levels of arson and a person will face a harsher penalty if they were the owner of the property and committed the arson to get the insurance money. In most states arson is a felony. Some jurisdictions have levels of arson based on the value of the property burned and burning property of little value (under $1,000.00) might be a misdemeanor. Assault: You have probably heard the term assault and battery. These two terms are directly connected and you need to understand battery to understand assault. A battery is when someone touches or injures you and you did not want, or ask to be touched or injured. Assault occurs when someone tries to batter you and fails OR they do something that makes you fear that they are going to batter you. So, if John hits Lou over the head with a book, John has committed a battery because he offensively touched Lou. If John swings the book and misses or just swings the book at Lou to scare Lou, he has committed an assault. In most states there are many types or levels of assault so I will break down some that are the most common. Simple Assault: This occurs when someone attempts to batter someone or puts the individual in fear of being battered. This type of assault is usually a misdemeanor. Assault and Battery: This occurs when someone swings at someone and actually strikes them. Assault and battery is usually a misdemeanor. Aggravated Assault: This type of assault occurs when the person assaulted suffers some type of serious injury. For example, Suzy hits Ashley with a bat and breaks her arm. This type of assault is usually a misdemeanor. Felonious Assault or Assault with a Dangerous Weapon: This type of assault occurs when someone assaults another person with a gun, knife, club, iron bar, brass knuckles, or other dangerous weapon. This type of assault is usually always a felony. Assault with intent to Do Great Bodily Harm Less than Murder: This type of assault occurs when someone assaults another person and they intend to seriously injure the person. For example, the person repeatedly kicks their victim in the head or body. This type of assault is a serious felony. Assault with intent to Murder: This type of assault occurs when someone assaults another person and they are trying to murder them. This is a serious felony that usually results in a long prison sentence. Domestic Assault: Most jurisdictions have taken the above types of assault and created slightly different sentences for assaults that occur within a family. These domestic types of assault may have slightly different sentence recommendations. Personal Protection Orders/ Restraining Orders: One of the biggest problem areas for young women is ex-boyfriends or men that would like to date the woman, stalking or somehow placing the young woman in fear. For example, Suzy had a messy break up with her boyfriend Chuck and Chuck keeps calling her cell phone at strange times. Chuck follows Suzy to work and is there sitting in his car when she gets off work everyday. A Personal Protection Order, and Civil Protection Order are two of the names given to court orders that forbid ex-boyfriends like Chuck from scaring, threatening, or intimidating their former girlfriends or girls they might just be stalking. The process to get a Personal Protection Order is not difficult and most states have established procedures that make it pretty simple to get a Personal Protection Order. Typically, the person filing the complaint must show that the person engaged in behavior that scarred or intimidated the person filing the complaint. Most jurisdictions use the lower standard of proof to determine if a P.P.O should be issued. Most jurisdictions will have a hearing where the defendant(Chuck) will be able to testify and argue that he hasn’t engaged in threatening behavior. When the court issues a P.P.O. it is usually recommended that the complainant (Suzy) make sure the P.P.O is recorded in the jurisdictions law enforcement information system and/or the local police department. This will make the police aware of the harassing behavior and the fact that Chuck should not be near Suzy or engaging in behavior that threatens Suzy. Burglary(Home Invasion) and Breaking & Entering: Burglary occurs when an individual goes into someone else’s building or home with the intent to commit a crime in the home or business. A key factor in burglary is that the person entered without the consent of the owner. To satisfy the entry requirement, all that is needed is for any part of the person’s body to enter the home or dwelling. In many jurisdictions today there will be difference in the criminal charge depending on the nature of the crime committed in the dwelling. If Bob goes in an unoccupied home and takes $20.00 in liquor he will typically be charged with less than Jack who goes in an occupied home at night and beats the residents and takes $4,000.00 in jewelry. Controlled Substance Offenses: A controlled substance is a substance that is regulated by law. Controlled substance statutes usually include illegal drugs and narcotics like marijuana, cocaine, heroine, L.S.D., G.H.B., prescription drugs, and many other substances. Controlled substance laws usually prohibit the possession and consumption/use of the illegal substance. Most of the controlled substance laws determine whether the offense is a misdemeanor or felony based on the amount the person possessed. For example, if Chuck only has 25 grams of cocaine he might face a sentence of at least 1 year but not more than 20 years. If Lou has fewer than 20 marijuana plants he might face up to 4 years in prison. Many laws also allow the judge to consider giving the person fines in addition to or instead of time in jail or prison. Most jurisdictions also have different laws and sentencing guidelines for people who “manufacture, deliver, or possess with the intent to distribute” a controlled substance. The sentences for these crimes are usually always more severe than the possession sentences. Many states also have laws that establish an additional crime if the controlled substance is delivered to someone under 18 or near a school. There are also laws that make it a crime to keep or maintain a drug house. These laws target the owner of the property and not the illegal activity of the people who are there doing drugs. For example, if you have a friend that lets other people come to their house to use drugs, the owner of the home could be charged with keeping or maintaining a drug house. These laws also usually apply to people who let others use drugs in their apartment. An important legal concept that exists in most jurisdictions is constructive possession. Constructive possession allows the police to charge you with possession even if you aren’t actually in physical possession of the drugs. The key behind this concept is that a person may have control over drugs even if they are not in their actual possession. For example, if there are four kids sitting in a basement around a table with marijuana on top of the table all four could be charged with possession because all four are close enough to have control over the drugs. If you are charged with possession under a “constructive possession” theory make sure you have a good defense attorney that knows how the appellate courts have defined constructive possession in your jurisdiction. Crimes Against Children: Abandonment: This crime occurs when a parent leaves a child with no intention to return for the child. In most jurisdictions the parent must leave the child in a dangerous place. For example, if a parent abandons their child at a bus station with no intention to return. Child Sexually Abusive Material: These statutes protect children from individuals that would expose the child to or use the child in the creation of sexual materials. Most jurisdictions have very detailed statutes regarding this area. This area has been changing a great deal because of digital editing software and the internet. Discipline: Most jurisdictions allow parents to discipline their children as long as the discipline is reasonable. However, if the discipline is extreme and unreasonable the parent will face prosecution for child abuse. I have had the opportunity to see presentations by social workers and emergency room staff at an urban children’s hospital and it is extremely upsetting to see what some parents do to their children. If you have ever been disciplined in a physically or emotionally severe way please contact a teacher, school counselor, or law enforcement officer. Criminal Sexual Conduct and Rape: Most jurisdictions have established detailed statutes that deal with rape and other criminal sexual conduct. The traditional definition of rape is unlawful sexual intercourse without the individual’s consent. All states have unique elements to their crimes so I have decided to give you some of the general sub topics included in many of the statutes and the issues related to them. Age(Statutory Rape): Most states have established an age at which males and females can consent to sexual activity. For example, if a state establishes 16 years of age as the age of consent, once a person reaches 16 years of age they have the ability to engage in consensual sexual activities with another consenting adult. Any person who engages in sexual activity with someone under the state’s statutory age of consent has committed rape. It does not matter if the underage person consents to the sexual activity. You CAN’T engage in sexual activity with someone under that age of consent. In addition, if both individuals are under the age of consent and both consent to the sexual activity it is still illegal and both underage individuals could be prosecuted. Consent: Most state statutes include some element that addresses consent. It is very important in criminal sexual conduct/rape cases to determine if the victim consented to the sexual act. If the victim in some manner indicated that they did not want to have sex with the defendant there was no consent. Drugs and Intoxicant: Most states have addressed the increasingly common use of date rape drugs and other intoxicants being used to incapacitate an individual so the defendant can sexually assault their incapacitated victim. There are some very disturbing studies that indicate that many of the rapes involving drugs and intoxicants are committed by a person the victim knows. Force: The issue of force has been present in definitions of rape for over a hundred years. Force can take a variety of forms it might be actual physical force like holding the victim down or hitting the victim. The force might also take the form of a threat. In many states the threat of force is enough to satisfy the element of force. Penetration: Another element that is present in many criminal sexual conduct and rape laws is there must be some sexual penetration. In many states penetration is any type of penetration by anything. Many states have passed statutes that include the traditional genital penetration, but also include oral and anal penetration. Prohibited People: Many states have identified people or classes of individuals that can’t engage in sexual relations with each other. The most common examples are: teachers or other people in authority positions can’t have sexual relationships with individuals they have power/influence over and sexual activity between individuals who are related is usually forbidden. Rape Shield Laws: One of the biggest problems in rape cases is victims that don’t report that they have been raped. Sometimes they don’t want people to find out they have been raped. Sometimes they don’t want private information to come out about themselves during a trial so they don’t report the rape. In some cases the victim tragically thinks they might be partially to blame because they allowed themselves to be taken advantage of. Most states have established laws that limit the defendant’s ability to bring up the victim’s reputation or past conduct. In many states there are exceptions that allow the defendant to bring up the victim’s past conduct with the defendant or the victim’s conduct with other people if it is used to show that physical evidence of sexual activity is from another person and not the defendant. Touching: Most states will have some lower level of criminal sexual conduct statutes that deal with inappropriate touching. These statutes usually cover any touching of the intimate parts of a person’s body that were not consented to by the victim. Drunk Driving: Every day in our country people get in their cars after they have been drinking alcoholic beverages. Sadly, most of these people either don’t care that they are a danger to other innocent drivers and pedestrians or mistakenly think they can “handle” their liquor. The states have all decided to use different terms for the offenses related to drunk driving. Some are DUI(driving under the influence), DWI(driving while impaired), OUI(operating under the influence), and OWI(operating while impaired. In most jurisdictions these offenses are initially a misdemeanor if it is a first time offense. If there are additional offenses by the same person most jurisdictions will charge the person with a felony. For example, if Lou is caught driving under the influence a third time it will be charged as a felony. Naturally, if the drunk driver injures someone or causes some type of property damage even though it is a first offense they will probably be charged with a felony. One of the things you must understand about drunk driving offenses is that the police officer that stops a suspected drunk driver will usually go through a few steps. The first step is usually asking the driver to perform some field sobriety tests. Many noted attorneys that specialize in drunk driving defense state that these tests are very questionable and many studies have found that they are designed so that the person will fail. Check to see if your jurisdiction has any laws that make it mandatory that you take these types of tests. In addition, the National Highway Traffic Safety Administration has established the proper techniques for police officers to use when giving these tests. It is important to find out if the officer has received the N.H.T.S.A. training and conducted the tests in the appropriate manner. The second step is usually a roadside breath test with some type of portable breath test. There are procedures that must be followed and in some states it is possible to refuse these tests while in some jurisdictions like Michigan in is mandatory for all licensed drivers to take these tests when requested by a police officer. Usually refusal to take the test in states like Michigan will result in an automatic suspension of the driver’s license. The third step is usually a breath test at the police station or a blood test at a hospital. In some states it is possible for the accused person to request their own independent test. The crucial thing is NEVER to Drink and Drive. However, if you are foolish and irresponsible and drive under the influence, make sure you have the money to afford a very good attorney that specializes in drunk driving defense. Indecency: Most jurisdictions have established laws that prohibit people from exposing their naked body to other people in public. In some jurisdictions it isn’t even necessary that somebody observe the person. All that is necessary is that it is reasonable to believe someone might have been able to observe them based on the location they chose to expose themselves. There are also indecency statutes that prohibit engaging in sexual behavior in public as well as indecency statutes that prohibit trying to engage in sexual acts with people under that age of consent. Larceny: This crime occurs when taking someone else’s property or belongings with the intent to steal it. In most jurisdictions there are monetary levels that are used to differentiate larceny sentences. For example, if Suzy steals a $40.00 sweater from someone’s locker she would be charged with a low level misdemeanor. However, if Suzy had stolen $3,000.00 in jewelry she would face a serious felony charge. Larceny by Trick: This type of larceny occurs when a person somehow tricks the other person into giving up their property. For example, when the thief goes to Mrs. Brown’s door and says that her husband, Mr. Brown, made an appointment to have their computer taken in for repairs. Mrs. Brown lets the person take the computer not realizing Mr. Brown never made an appointment to have the computer repaired. Murder and Manslaughter: Murder: Murder is usually divided into various types or “degrees” of murder. The most serious type of murder is first degree murder. First degree murder is usually murder that is premeditated or planned before the murder is committed. That means if you plan the murder beforehand or think about committing the murder before the murder you will be charged with first degree murder. In most jurisdictions it is common to charge people who commit murder while committing another felony with first degree murder. For example, if you accidentally kill someone while robbing the person you will be charged with first degree murder even though you didn’t plan to kill the person. Typical crimes that would result in this charge if someone is killed are: arson, rape, serious child abuse, major drug offenses, robbery, breaking and entering or home invasion, larceny, extortion, and kidnapping. In many jurisdictions it is also common to charge someone who kills a police officer with first degree murder. Second degree murder occurs when someone kills another person and it was not planned or premeditated. The criminal intent needed is usually that the defendant must have intended to kill at the time of the murder or intended to do great bodily harm to the victim. An example of second degree murder would be if Bob got in an argument with Steve and killed him. Manslsughter: Manslaughter is a crime that was created because there are facts that indicate the defendant was somehow justified in his actions or didn’t have the intent to kill at the time of the murder. Traditionally there have been two kinds of manslaughter; voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter is usually murder that was done in the “heat of passion”. There are usually four requirements that a person must meet to have their crime reduced from murder to voluntary manslaughter. They are: 1. the event or situation would cause a reasonable person to lose self control, 2. the individual acted in the heat of passion, 3. there was no time for the person to cool off, and 4. the person had not cooled off. An example of this might be if a parent came home and saw an individual severely harming their child. Involuntary manslaughter usually occurs when the individual did something grossly negligent and it results in an accidental death. Grossly negligent is some act or danger that yields a substantial likelihood of serious bodily harm or death. Because it is based on a negligence theory it must be shown that there is a sufficient link between the defendant’s negligent act and the death of the victim. It is important to make sure you check with your jurisdiction to find out how much awareness your jurisdiction requires to charge the defendant. For example, if an individual drives at 70 m.p.h. in a residential neighborhood posted at 25 m.p.h. and loses control of the car and kills a pedestrian they will usually be charged with some type of involuntary manslaughter. Many jurisdictions call this vehicular manslaughter. Receiving Stolen Property: This crime occurs when a person has knowledge that money, goods, or property is stolen and then buys, takes, possesses, conceals, or helps someone conceal the stolen money, goods, or property. For example, if your friend steals some clothes from the mall and you know they are stolen and take them. Most jurisdictions determine whether to charge you with a misdemeanor or felony depending on the value of the stolen property. Robbery: Robbery is larceny (stealing) from the actual person. In addition, in robbery the robber uses force or the threat of force to take the property from the person. For example, Bob puts a gun in John’s back and demands that he give Bob his wallet, cell phone, and lap top. Stalking: Stalking occurs when someone repeatedly harasses another person in a way that would make a reasonable person feel terrorized, frightened, or threatened. It is also necessary that the individual targeted did feel terrorized, frightened, or threatened. The Steps In the Criminal Process As I tell all of my students, “PLEASE DON’T BREAK THE LAW!” The cost, hassle, and potential long-term effects on your life are not worth whatever fun or money you were getting from the illegal activity. Nonetheless, many people your age will break the law. Therefore you need to have a basic understanding of what will happen to you from the time you are arrested until your trial. Arrest: Arrest occurs when a police officer takes you into custody with the intent to charge you with a crime. A police officer may arrest an individual when the officer has probable cause(pieces of evidence) that indicate the person committed a crime, or an arrest warrant. In some jurisdictions there are different standards depending on whether the crime was a misdemeanor or a felony. In some states the misdemeanor must be committed in the officer’s presence in order to arrest someone for a misdemeanor. The important thing to remember is custody. When your freedom of movement is somehow limited by the police officers, bells better be going off in your head because you are most likely about to be arrested. Remember the 5th Amendment and your right not to say anything that could incriminate you. Also, remember that once you are arrested the police have the right to search you. Booking: Booking normally occurs at the police station. During booking the police will most likely conduct a more thorough search of the person arrested. This is also the point in the process where the police will finger print, take photographs, and create the record of the arrest which will include the person’s name, crime arrested for, and any other evidence that was collected. First Court Appearance: The first appearance of the person arrested might be called the initial arraignment, first appearance, arraignment on the complaint, or preliminary appearance. There are other names so please check with your state to find out how your state has named the steps in the process. An important thing to remember is that this first appearance must occur pretty quickly. Some jurisdictions have established that this first appearance must occur within 24 hours of arrest. Therefore it is very important to remember that it won’t be long before the person arrested goes before a judge or magistrate. At this first appearance before a court, the judge or magistrate will tell the person the crime they are being charged with, their right to remain silent, and their right to have an attorney. For some low level misdemeanors that don’t have the potential for jail time some states will not provide an attorney to a defendant. It is also at the first appearance that the judge or magistrate will set the bail for the individual. If the nature of the crime is severe enough or the person charged might flee or be a danger to the community the judge or magistrate can deny bail and keep the individual in jail. In many misdemeanor cases the person will be released on their personal promise to return for future court dates or for a very small amount of money. In a felony case the judge or magistrate will set a date for the next step in the process the preliminary hearing or examination. In misdemeanor cases the judge or magistrate will usually ask the charged individual to enter a plea at this first appearance. Preliminary Hearing: The preliminary hearing or examination is the next step in the felony process. At this step the judge or magistrate will look at the evidence and determine if there is probable cause to continue with the case against the charged person. In states that have a grand jury of citizens look at the evidence and issue an indictment, there is no need to have a preliminary hearing. Many jurisdictions allow the person charged with the crime to waive the preliminary hearing. If the judge or magistrate determines that there is enough evidence to charge the person, an indictment or information will be issued that lists all the charges against the individual and the case will move to the trial court that handles felony cases. Grand Jury Review: In some jurisdictions a grand jury which is made up of citizens will review the evidence. If the grand jury determines that there is sufficient evidence to charge the individual, the grand jury will issue an indictment. In many states the prosecutor will issue an information after the preliminary hearing in order to go forward with the felony charge and there is no grand jury review. Arraignment on the Information or Indictment: After the indictment or information is issued, it will be filed with the court that has jurisdiction over felonies. At this arraignment the defendant will be informed of the charges against him and they will be asked to enter a plea. The defendant might plead Not Guilty, Guilty, or Nolo Contendere(No Contest). Most defendants enter not guilty pleas. If a defendant enters a guilty plea at this arraignment it is usually because they have entered into some type of plea bargain(agreement) with the prosecutor. If a defendant enters a guilty plea, the judge must explain to the defendant all of the rights that the defendant will be giving up by pleading guilty. Pretrial Motions: A motion is request that the court take some type of action. The defendant might request that evidence be suppressed because it was seized illegally. The defendant might request that the prosecution turn over evidence so the defense can review it prior to trial. Trial: At the trial both sides will present there cases to the judge or jury. Some important things to remember about criminal trials are that the prosecution has the burden of proving all the elements of the crimes charged beyond a reasonable doubt and defendant does not need to testify.
Criminal Law: Interesting Information
Felonies vs. Misdemeanors
The Burden of Proof
Crime and the Mind
Criminal Intent The Two Pieces of the Crime: Actus Reus and Mens Rea
Defenses
The People Involved in the Crime
Conspiracy
Solicitation
A Sampling of Crimes
