Top Ten Criminal Law Questions

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Top Ten Most Commonly Asked Questions About Criminal Law

Even though criminal law and police investigations are everywhere in the media, there is still a lot of confusion about how the system actually works in real life. Below are the top ten questions people often have about the criminal justice system:

1. What is the Distinction between Types of Crimes, Felony, Misdemeanor, Infractions?

In America, you can be accused and convicted of three classes of crimes. (1) Infraction; (2) Misdemeanor; and (3) Felony. The severity of being accused of these crimes varies significantly.

An infraction is the lowest form of crime and a speeding ticket is an example of an infraction. An infraction is usually resolved by a fine and you cannot receive a jail sentence for an infraction. There is no right to a jury trial or an attorney for an infraction, because no jail time is threatened. 

A misdemeanor charge is more severe than an infraction, but less severe than a felony. Drunk Driving/DUI is an example of a misdemeanor. You can go to jail for up to one year for a misdemeanor conviction and be heavily fined as well. Many states break up their misdemeanors; i.e. Class A misdemeanor, Class B misdemeanor etc. Depending on the severity of the misdemeanor you may have a right to a jury trial and legal representation.

A felony is the worst type of crime you can be charged with. Murder and Bank robbery are examples of felonies, but less severe crimes such as fraud can also be classified as felonies. A felony is any crime that can result in more than one year of imprisonment. Any time a U.S. Citizen is charged with a felony they are entitled to a jury trial and legal representation.

Here is a link to an article providing more analysis of the classification of these crimes: Crime Classification

2. What are the Different Roles of Law Enforcement?

When people think of Police, Cops, or Law Enforcement, they typically lump them all together. However, it is important to understand there are numerous different law enforcement agencies in the United States with different powers and jurisdictions.

Law Enforcement Agencies obtain their authority from one of four governmental bodies in the United States. These four entities are listed below.

City - A city typically has a Police Department; i.e. the City of Los Angeles funds the Los Angeles Police Department (L.A.P.D). The L.A.P.D. has jurisdiction in the City of Los Angeles.

County - A County is typically made up of several cities and a County will have a Sherriff Department. The County has jurisdiction in their County; i.e. Sacramento County funds the Sacramento County Sheriffs’ Department. The Sacramento County Sherriff has jurisdiction in the City of Sacramento and the other cities that make up Sacramento County.

State - There are 50 states and each have their own Police Department. These state police officers have jurisdiction over an entire state. The California Highway Patrol has jurisdiction over the entire state of California, which includes every City and County in the state.

Federal - The F.B.I., D.E.A, and Secret Service are examples of Federal Law Enforcement Agencies. These entities have jurisdiction to prosecute Federal Crimes anywhere in the United States.

Although these agencies work together, they may have authority to arrest you in one scenario, but may be powerless in another.

As an example, if San Francisco has a city code, which requires that anyone operating a forklift must be 25 years or above then San Francisco Police could arrest a 21 year old driving a forklift in San Francisco.

However, neighboring Oakland may have a law saying anyone operating a forklift must be 18 or above. Only a few miles away the 21 year old is a legitimate employee and S.F.P.D has no jurisdiction to do anything to the forklift driver.

Different regions have different laws, courts and rules, which are important to understand. If you are charged with a crime, hiring an attorney familiar with the local rules is important to protect your freedom.

3. What Are the Different Tools Criminal Defense Lawyers have Available to Help their Clients?

Everyone has heard of a criminal defense lawyer, but what do they do? A defense lawyer primarily uses the rights provided to each citizen by the United States Constitution to keep someone charged with a crime out of prison.

A few examples of what a defense attorney can do are exclude evidence. Suppose the police rummage through your home without a warrant to find illegal material (i.e. drugs) and then the Police charge you with drug possession. However, your criminal defense attorney can argue that the search of your property was unlawful and the evidence can be excluded. Excluding the drugs from evidence means the prosecutor will be barred from using the drugs the police discovered or even mentioning the drugs at trial. In that scenario, the prosecutor will almost certainly drop the case.

Whether evidence is admissible at trial or not is typically determined in pre-trial motions, which are known as motions-in-limine

A defense attorney can also prevent a confession from entering the courtroom. A prosecutor and police want a suspect to confess, but police can be too aggressive and unlawfully coerce a confession. If this occurs, then the confession can be excluded from evidence.

There are a number of other tools that a Defense Attorney has at their disposal, but many of their actions are used to prevent incriminating evidence from being used against their client at trial.

4. Do Police actually say You have the Right to Remain Silent like on T.V. and if so why?

If the Police are arresting or putting someone in custody to ask them questions, otherwise known as a “custodial interrogation,” then the Police are supposed to read the person his or her Miranda Rights. If all the rules are followed when an officer makes the decision to arrest someone, they will say: “You have the right to remain silent when questioned. Anything you say or do may be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.”

What this statement does is inform people of their Due Process Rights and their Right to Counsel. It is telling people you don’t have to say anything and additionally if the person requests a lawyer, the police won’t ask any questions until the suspect’s lawyer arrives.

Most people ignore the Miranda Warning or don’t understand it, but it is a protection implemented for people to avoid unlawful arrest and prosecution. However, if someone chooses to ignore the warning then they cannot go back and say they were not warned.

However, if an Officer does not tell you these rights and you confess to a crime, then your confession can be excluded from trial. This is why it is so important for arresting officers to read a person’ Miranda rights when they make an arrest. Many police officers carry a Miranda Card on them as a reminder to read a suspect their rights when making an arrest.

5. Will the Government Really Give you a Lawyer?

If the government charges you with a crime that can possibly result in 6 months or more time in jail, then the government is required to give you a lawyer at trial. This is done to satisfy your 6th amendment right to counsel. Most Counties fund a Public Defender’s Office, which takes on criminal defense clients.

Smaller Counties may appoint a Public Defender, which is an attorney with their own practice or a firm that handles criminal defense cases. Public Defenders are often very good attorneys, but they are overworked due to extremely large caseloads. For this reason, many people choose to retain their own private lawyer, who can devote all their attention to individual clients. Unless someone specifically waives their right to a lawyer, no court hearing where the defendant faces 6 months or more in prison will take place without the presence of an attorney.

The government only provides an attorney in criminal cases where a sentence of more than six months in jail is possible. There is no requirement to provide counsel in a civil case.

6. Can I Question the Cops if They Arrest Me and What can I find out about the Officer that Arrested Me?

If you are charged with a crime, you can conduct discovery on the officers involved in your arrest. Furthermore, law enforcement is required to hand over what is known as Brady material, which is evidence that must be disclosed. For example, if the arresting officer was convicted of a felony, that needs to be disclosed.

You can also claim that the arresting officer had no probable cause to arrest you, did not provide a Miranda warning, or unlawfully searched your home. If the officer has past instances of minor misconduct, the minor misconduct may not be Brady material. However, states like California allow a Defense Attorney to request prior incidents about the officer through a Pitchess Motion. Other states have similar discovery tools to protect the rights of someone charged with a crime.

7. What is Bail and How Does it Work?

In America, you are innocent until proven guilty. Just because you are charged with a crime doesn’t mean you are convicted. However, many criminal defendants are not easy to find and if they could avoid their trial date and potential conviction, they would. Bail is a tool used to ensure a Defendant comes to trial or remains incarcerated until the trial is over. Bail is paid to the court as a placeholder. If you let the court hold your money and you show up for your trial, you are repaid. If you do not show up though, the court keeps your money.

Bail is available to most people, but some factors make it harder to obtain bail. Such factors include the high profile of the crime, the dangerousness of the suspect, and their ability to flee the country are all analyzed to determine bail. There are times when bail is denied. For example, if a dangerous serial killer is arrested, he may be considered too dangerous to release even before he has been convicted. Similarly, a billionaire may be considered a significant flight risk due to the resources the billionaire has at his disposal and the risk the billionaire could lose his money post-trial. Most of the time though, bail is granted, but if you do not show you lose money.

8. What is the Three Strikes Law?

The three strikes law is a controversial law, which was enacted to prevent repeat offenders. If you are convicted of three separate felonies, then you get 25 years to life in prison, even if each felony carried a two year sentence.

There are advocates on both sides of this argument. Opponents argue it increases incarceration and violates constitutional rights: i.e. if you committed three separate felonies with a two year sentence, then you should receive 6 years not 25 to life. There are numerous other arguments as well. Proponents of the law say letting the same person continue to victimize members of the community and engage in criminal behavior should be stopped. People do not like hearing that an ex-con robbed a bank two days after they were released.

There are reasonable arguments on both sides of the coin, and this article provides more information:  Three Strikes Article.

9. If I am Convicted, How is the Sentence Determined?

In almost every case, the jury determines if you were guilty, but a judge determines your sentence. Many states and the Federal Government have implemented sentencing guidelines, which limit the judge’s discretion. For example if you are convicted in Federal Court for Robbery, then the sentence can carry a sentence of 33-41 months. The Judge can issue the minimum, the maximum, or anywhere in between. 

A judge will usually consider factors such as:

These are only a few of the many factors a judge can use. Additionally, judges are people and some are known for leniency while others are known for strictness. If someone is convicted of an offense and disagrees with the Judges sentencing decision, the sentence can be appealed.

Another controversial topic regarding sentencing has been the implementation of enhancements. These are typically implemented to stop repeat offenders or certain type of offenses. For example, in some states, if you commit a robbery with a gun instead of knife, you may receive a gun-enhancement to your sentence. Hypothetically, the sentence for robbery may be between 33-41 months, and if you use a gun there might be a six month enhancement. This means that even if the judge shows leniency and issues a sentence for 33 months, the six month enhancement is added, which totals 39 months for the offender. 

Sentencing has been and continues to be a major issue in the criminal justice system.

10. Which States have the Death Penalty and What Crimes Result in the Death Penalty?

The death penalty is a highly controversial topic, and some states ban the practice all together. Other states allow the death penalty, but never utilize it and other states do actually execute prisoners. One of the main legal challenges to the Death Penalty is that it violates the 8th Amendment of the United States Constitution, which prevents cruel and unusual punishment.

In an interesting historical note from 1972-1976 the death penalty was put on Moratorium in America as a result of the Supreme Court Decision in Furman v. Georgia. The reasoning was that the death penalty violated the 8th Amendment of the Constitution and was considered a cruel and unusual punishment. Various reforms were made by states in response to this decision in an effort to make the death penalty appear more humane. Practices such as lethal injection and the gas chamber were implemented.  Whether these practices are more humane or not is up for debate, but in 1977 Utah and Oklahoma performed executions. Since that time each state has essentially been left with discretion on whether to implement the death penalty.

There are currently 31 states that authorize the death penalty, which are listed below. The Federal Government and U.S. Military also authorize the death penalty.
Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wyoming.

Generally, the only crime punishable by death is murder, but a few states authorize the death penalty for child rapists. However, in 2012, the case of Kennedy v. Louisiana held that the death penalty for child rape violated the 8th Amendment for Cruel and Unusual Punishment, because if the conviction is only for the rape of a child, then the convict did not intend to kill their victim. This case was decided in 2012 and seems to effectively ban the death penalty if the convict did not intend to kill their victim. In essence if you do not intend to kill someone, the state cannot intentionally kill you. This is a recent decision and there will likely be subsequent reviews of the death penalty under the 8th Amendment. 

One final point of interest regarding the death penalty is that a Judge almost always issues the sentence after a conviction. As a check on the Judge’s authority to issue death sentences, the jury must approve of the use of the death penalty before the Judge can sentence the defendant to death.

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Last Modified: 03-30-2016 03:32 PM PDT

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