What is “Criminal Law?”

“Criminal law” is the system of law that punishes people who commit crimes and other various types of “criminal acts.”

What is a “Criminal Act?”

A “criminal act” is conduct that is perceived as:

  • Threatening;
  • Harmful; or
  • Endangers the property, health, safety, or moral welfare of another.

A Brief History of U.S. Criminal Law

“Common Law.”  The concept of the “criminal law” as we know it today began to develop in 18th Century Europe.  The English government created a system known as “common law.” Common law is the process of judges creating and updating laws through their rulings on legal matters.  These rulings are known as “precedents” and are used to guide judges in making determinations in future cases. The U.S. has borrowed from the English common law tradition and allows judges to determine what is and is not a crime through a similar process of judicial rulings and precedents.  

The Constitution.  The Constitution, also known as the “supreme law of the land,” was officially ratified in 1789 (after the American Revolution) and established the judicial branch of government.  The three branches of government include: (1) the legislative branch, consisting of Congress; (2) the executive branch, consisting of the president; and (3) the judicial branch, consisting of the Supreme Court and other federal courts.  The Constitution has been described as a “living” document since it changes over time and the words of the Constitution are open to interpretation.

Congress.  Laws that are not created through common law are created by statute.  Members of the House of Representatives and the Senate draft, sponsor and introduce “bills” to Congress for consideration.  The clerk of the House of Representatives will assign a legislative number to the bill (e.g., H.R. 0001) and the clerk of the Senate will assign a legislative number to the bill (e.g., S. 0002).  Each house then debates the viability of the bill in committee sessions. These committee sessions offer the opportunity for interested parties to offer testimony as to why the bill should, or should not, be passed.  These committee sessions also offer the opportunity to revise the bill. Then, both chambers of Congress vote separately on whether to pass the proposed bill into law. The President has the final say on whether to override the vote of Congress through the use of a veto.  If the President decides to use his veto power, the bill will go back to Congress to be voted on again. However, if the President does not veto the bill within 10 days, the bill will automatically become law.

Objectives of Criminal Law

Retribution.  “Retribution” is the most common objective of criminal law and focuses on the idea that criminals should be punished for their wrongdoings.  Retribution is seen as a way to bring balance to society.

Deterrence.  “Deterrence” aims to impose a penalty to a crime that is sufficient enough to discourage that particular individual from engaging in criminal behavior in the future.  Deterrence also works in a more general sense by discouraging society as a whole from committing a particular offense.

Incapacitation.  “Incapacitation” is simply the idea that those that engage in particular criminal offenses must be removed from society to protect the public-at-large.  

Rehabilitation.  “Rehabilitation” aims to help a criminal offender become a productive and contributing member of society upon release.  The primary goal of rehabilitation is to prevent offenders from reoffending. This is done by explaining to the offender why particular conduct is illegal.

Restoration.  “Restoration” is an attempt to relieve the injury that was inflicted on a victim by an offender.  The concept of restoration is more common in civil lawsuits that require reimbursement to victims in the form of money damages.  Basically, restoration is an attempt to return the victim to the position they were in prior to the injury.

Substantive Criminal Law

Burden of Proof.  The “burden of proof” is a standard that is used in both criminal and civil proceedings.  In a criminal trial, the “burden of proof” is on the government to prove the defendant’s guilt “beyond a reasonable doubt.”  The “beyond a reasonable doubt” standard is a very strong burden for prosecutors to meet because it means that the jury must find the evidence to be so convincing that there is no reasonable doubt that the defendant committed each element of the crime.  In order to meet this standard, the government must provide evidence to convince the jury of the defendant’s guilt. This means that a defendant in a criminal trial does not have to prove their innocence and does not had to submit evidence on their own behalf to disprove the prosecution’s case or theory.  That is why all defendants in a criminal trial are assumed to be “innocent until proven guilty.”

Conspiracy.  “Conspiracy” is charged at the federal level under 18 U.S.C. § 371.  In order to be convicted under this conspiracy statute, the government must show that two or more people entered into an agreement to engage in a criminal act and that the individuals had the intent to carry out that agreement.  The statute also requires an overt act in furtherance of the conspiracy. For example, the fact that you agreed to commit a burglary may not be enough to convict you of conspiracy unless you went out and purchased items to carry out the crime or entered the property in question; these actions may be considered “overt acts” in furtherance of the crime.

Attempt.  “Attempt” is commonly described as “more than mere preparation.”  Basically, in order to be convicted of attempting to commit a crime, an individual must make a substantial effort to carry out a criminal act, but ultimately fail to complete the criminal act.

Lesser Included Crimes.  A “lesser included” crime is an offense for which all of the elements necessary to impose liability are also elements found in a more serious crime.  The most common example of a lesser included offense is the crime of larceny. At common law, the elements of larceny require the taking or carrying away of tangible property from another person with the intent to permanently deprive the owner of that property.  Similarly, robbery requires all of the exact same elements as larceny with the only difference being the added element that the individual carrying out the crime use force or intimidation. This means that every robbery includes some form of larceny, but not every larceny includes a robbery.  Therefore, larceny would be considered a “lesser included offense” of robbery.

Felonies vs Misdemeanors.  Felonies tend to be considered “more serious” crimes than misdemeanors and carry more severe penalties.  The main difference between a felony and a misdemeanor is the prison sentence you may face. While each state is different, a conviction for a misdemeanor typically results in a sentence of less than one year in county jail.  On the other hand, a felony conviction generally results in a state prison sentence of one year or more. There are additional consequences to the civil liberties of individuals who are convicted of committing a felony. For example, felony convictions result in the complete loss of an individual’s right to bear arms, the right to vote, the right to serve on a jury, and the ability to hold public office.

Constitutional Rights – (Procedural Criminal Law)

4th Amendment

Unreasonable Search and Seizure

“The right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Persons, Houses, Paper, and Effects

This section of the 4th Amendment has been interpreted to include protections against the physical intrusion of a person’s physical property, as well as intrusions on the privacy of individuals.

Unreasonable Searches and Seizures

What kind of search is considered “unreasonable?”  The 4th Amendment has been held to mean that a proper search or an arrest requires a judicially sanctioned warrant.  Searches conducted outside the judicial process, without prior approval of a judge or magistrate, are per se unreasonable.  In order for a warrant to be considered reasonable, it must be supported by “probable cause.”

Probable Cause

The standards for what is considered “probable cause” differ for an arrest and a search.  For an arrest, the government must only prove that they had “reasonably trustworthy information” that would lead a prudent person to believe that the arrested person has committed or was in the process of committing a crime.  For a search, the Fourth Amendment requires that a warrant must establish probable cause to believe that the search will uncover criminal activity or contraband. Generally, as long as a government agent’s belief is “reasonable,” the court will find it to be sufficient grounds for a search.

Particularly Describing

The 4th Amendment places limitations on the scope of a government-sanctioned search.  According to the amendment, the scope of a warrant is limited according to specific information listed on the warrant.  Therefore, each warrant must specifically state where a government agent is permitted to search, and what the government agency is permitted to search for.  For example, if a warrant is issued on your home to search for a missing person, a government agency would not be permitted to search a desk drawer in your home, because a person would not be able to fit in your desk drawer, and the agent is only allowed to search for what is particularly described in the warrant; e.i., a person.

Exclusionary Rule

The “exclusionary rule” is derived from the protections outlined in the Fourth Amendment and provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant’s criminal trial.  This, however, does not prevent the evidence from being admitted during grand jury proceedings.

Exceptions to the Warrant Requirement

Consent – Generally, if a party gives consent to a search, a warrant is not required.  However, issues arise when there is a question as to whether a consent to search was coerced or given voluntarily, or whether an individual has the right to consent to the search of another’s property.

“Plain View” and “Open Fields” – An officer may seize objects that are in “plain view” if the officer’s presence on the property is lawful.  However, the government agent must have probable cause to believe that the object is contraband and the object must be “obviously” illegal.  For example, one of the most descriptive cases involving this exception had to do with stolen stereo equipment. The officers in the case were legally on the property in question, and saw stereo equipment in plain view in the defendants home.  However, it was not immediately apparent to the officers whether or not the stereos were in fact the ones that had been stolen. To confirm their suspicions, the officers moved the stereos to compare their serial numbers to the ones that had been stolen.  In this case, the attorneys for the defendant were able to successfully argue that the criminality of the steros was not “obvious” or “immediately apparent” without the officers moving them, so the items did not fall under the plain view exception, and the search was held to be improper.

“Exigent Circumstances” – Government agents may conduct warrantless searches in cases involving exigent circumstances.  Some “exigent circumstances” can include: (1) searching during the “hot pursuit” of a suspect; (2) searching an individual who has been arrested in order to preserve evidence or contraband that may be destroyed; (3) searching a suspect to make sure they are not armed; and (4) obtainint a blood sample from a drunk-driving suspect.

Motor Vehicles – According to the Supreme Court, individuals in automobiles have a reduced expectation of privacy and, therefore, may have their vehicle searched without a warrant in certain cases.  This rule does not apply to mobile homes and vehicles used as a residence since the use of the vehicle in this manner increases the likelihood that a reasonable person would expect this area to remain private.  It is important to keep in mind, however, that there must be probable cause or reasonable suspicion of criminal activity in order to stop and search a vehicle. Furthermore, a warrant is needed to search the vehicle of someone who has been put under arrest, unless the person being arrested is not wearing his seatbelt and has access to the passenger compartments of the vehicle, or the government agent has reason to believe that evidence for the crime that the person is being arrested for will be found in the vehicle.  Basically, as long as the police have probable cause to believe that evidence is present in the vehicle, officers may search any area in the vehicle.

Searches Incident to a Lawful Arrest – Searches of an individual’s person following an arrest generally do not require a warrant.  The reasoning behind this is to prevent an arrested individual from (1) destroying evidence, or (2) using a weapon against the arrested officer.  Also, the Supreme Court has held that any area within the “immediate control” of an arrestee may be searched without a warrant.

Border Searches – The U.S. Customs and Border Protection agency has plenary search authority.  This means that searches conducted at the U.S. border or the equivalent of the border (e.g., international airports) may be conducted without a warrant or probable cause.  This includes searching electronic files held on a travelers electronic devices (e.g., computer.) However, strip searches and body cavity searches must be supported by “reasonable suspicion.”

Public Schools – The Supreme Court has held that searches in public schools do not require warrants, as long as the government agents have reasonable grounds to believe that the search will result in finding contraband or evidence of illegal activity.

Prison Cells – According to the Supreme Court, an individual’s prison cell may be searched without a showing of reasonableness or probable cause.

5th Amendment

Grand Jury, Double Jeopardy, Self-Incrimination, Miranda, and The Takings Clause

The Fifth Amendment to the Constitution covers many different civil liberties, including:

Grand Jury Indictments – The Fifth Amendment requires that felonies be tried only upon indictment by a grand jury.

Double Jeopardy – According to the Fifth Amendment, a defendant may only be tried once in federal court for the same offense.

Privilege Against Self Incrimination – Perhaps most closely associated with the Fifth Amendment is the privilege against self-incrimination.  This clause provides defendants the right to not serve as a witness in their own criminal case. “Pleading the Fifth,” as it has come to be known, is the idea that an individual may refuse to answer questions when those questions might incriminate them.  

Miranda WarningsMiranda v. Arizona is a Supreme Court case from 1966 that held that the privilege against self-incrimination extended to criminal suspects being interrogated while in police custody.  The outcome of this case resulted in the Miranda Warnings that we know today.

The Takings Clause – The Fifth Amendment also states that the federal government may take private property for public use as long as the government provides “just compensation” to the individuals it is taking the property from.  “Just compensation” is generally considered to be the “fair market value” of the property.

6th Amendment

Rights During Criminal Prosecution

“Speedy” Trial – What is a “speedy” trial?  The right to a “speedy trial” has been the topic of much debate for obvious reasons.  What is considered “speedy” to one person may not be considered “speedy” to another. In order to help alleviate the obvious ambiguity of the text, the Supreme Court created a balancing test to determine what factors could help determine whether a trial had been improperly prolonged.  Those factors include: (1) length of delay; (2) reason for the delay; (3) the time and the manner in which the defendant has asserted his right; and (4) degree of prejudice to the defendant which the delay caused. Generally, if the court finds that a defendant’s right to a speedy trial has been violated, the indictment against the defendant must be dismissed.

“Public” Trial – The right to a “public trial” has been held to have some exceptions.  According to the Supreme Court, both the government and defendant may request that the trial be closed to the public.  Ultimately, the decision of whether to close a trail to the public would fall on the judge.

Right to a Jury Trial – The Sixth Amendment grants a defendant the right to have an impartial jury decide their guilt or innocence in a criminal trial.  Generally, a jury will consist of a representative cross-section of the community in which the crime was alleged to have been committed.  The right to have a “trial by jury” only applies to offenses in which the penalty is imprisonment for longer than six months.

Right to Six Jurors – A common misconception is that a jury trial in a criminal case requires twelve (12) jurors to decide the fate of the defendant.  The truth is that the Supreme Court has held that a jury of six is sufficient.

Confrontation Clause – The Sixth Amendment grants defendants the right to confront and cross-examine witnesses in a criminal trial.  This is essential civil liberty granted to criminal defendants in order to allow them to challenge the credibility of a witness that may be testifying against them at trial.

Courtroom Procedure – (Procedural Criminal Law)

What is an “Arraignment?” – A criminal “arraignment” is a defendant’s first opportunity to see the judge.  In federal courts, an “initial arraignment” must take place within 48 hours of an arrest; 72 hours if the individual was arrested on the weekend.  In some state courts, like New York, the initial arraignment must occur within 24 hours of an individual’s arrest, or else that individual must be released.  During the initial arraignment, a defendant is informed of all charges being brought against them and made aware of their right to retain counsel. Bail may also be set at the initial arraignment.  Then, after the individual is formally “indicted,” a second arraignment occurs where the defendant is joined by counsel and given an opportunity to enter a plea of guilty or not guilty.

What is an “Indictment?” – A criminal “indictment” is basically an accusation that an individual has committed a crime.  It consists of a short and plain statement of when, where, and how a defendant may have allegedly committed a crime.  According to the Fifth Amendment, “no person shall be held to answer for a capital crime” without the indictment of a grand jury.  This rule only applies to federal cases.

What is “Motion Practice?” – A “motion practice” is a procedural avenue used to make a request to a court.  Motions may be in the form of an oral or written request. All motions may be granted or denied by the court.  Making a motion requires an experienced attorney who can address the substantive and procedural issues affecting a defendant’s case.

What Happens at Hearings? – After a criminal complaint or grand jury indictment has been filed by a prosecutor, a “preliminary hearings” is held to determine whether there is enough evidence to require a trial.  A criminal defendant has the right to have counsel present with them at a preliminary hearing. Hearings may also be held to challenge motions made to the court.

What Happens at Trial? – The most important aspect to understand about a criminal trial is that the government has the burden to prove – “beyond a reasonable doubt” – that the defendant in a case is guilty.  The government is required to present evidence in the form of physical evidence or witness testimony in order to prove their case against a defendant. During a criminal trial, the jury is considered to be the “trier of fact,” while the judge is considered to be the “trier of law.”  What this means is that the jury will determine your guilt or innocence by examining the facts of the case, while the judge will instruct the jury on the law and ensure courtroom procedures are followed. 

What Happens During “Plea Bargaining?” – “Plea bargaining” is the negotiation of an agreement between a prosecutor and a defendant in a criminal case.  Generally, the agreement involves a defendant receiving a lesser charge or a more lenient sentence in exchange for a guilty plea.  It is important to keep in mind that by pleading guilty, a defendant forfeits his right to appeal the case.

How Does a Case Get Dismissed? – Before a plea deal is made or a trial is considered, a criminal defense attorney should determine whether there are sufficient grounds for which the case against his client should be dismissed.  A case may be dismissed by a prosecutor or a court. Some grounds for dismissal include, but are not limited to: (1) lack of evidence to support the charge; (2) loss of evidence; (3) witness unavailable; (4) improper complaint; and (5) lack of probable cause to arrest. 

What Happens During Sentencing? – After a criminal defendant is convicted at trial or pleads guilty it is up to the judge to determine the appropriate punishment or “sentence.”  A sentence generally consists of fines, imprisonment, probation, community service, or – if the defendant is eligible – rehabilitation programs. In order to make his decision, a judge may consider things like the defendant’s criminal history and specific facts of the case.

“Criminal Law” vs. “Civil Law”

Criminal Law.  Criminal law applies to cases brought by the state or federal government against an individual.  Criminal law focuses on the punishment and rehabilitation of offenders.

Civil Law.  Civil law governs disputes between two or more private parties.  Some common examples of civil law cases include: contract disputes and divorce proceedings.  Civil law puts an emphasis on dispute resolution and compensation in the form of monetary penalties, reimbursements, and restitution to victims.

Civil Claims vs Criminal Charges

Civil Actors Defined – Civil plaintiffs are sometimes called “claimants.”

Criminal Actors Defined – We typically call those bringing criminal charges “victims;” especially in violent crime cases or cases involving theft or fraud.  

Difference Between “Claimants” and “Victims” – In civil cases, the plaintiff or claimant is the one actually bringing the lawsuit.  The civil plaintiff’s attorney works for the plaintiff. In contrast, in criminal cases, the victim is merely a witness whom the prosecutor may call to testify against the criminal defendant.  The prosecutor may take the victim’s wishes into consideration, but the criminal action is the prosecutor’s case and theirs alone. This explains why it is often impossible for the criminal defendant who brought the case initially by filing police (or FBI) reports to “drop” the charges down the road.  The prosecutor likely won’t permit the victim-witness to end the criminal case they started. 

Turning a Civil Lawsuit into a Criminal Charge – Some civil lawsuits could never result in a criminal case because even if the court was able to find for the claimant “beyond a reasonable doubt” it would still not amount to a crime.  The fact remains true despite the fact that a civil jury would award monetary damages in favor of the plaintiff.  

For example: In the United States, defamation (slander when spoken and libel when written) unlike some other countries, is not a crime.  A person can sue for untrue statements causing damage to their reputation in civil court, but, due in large part to our First Amendment right to free speech, such statements, (with rare exceptions such as statements that directly incite violence) are not criminal.   On the other hand, some examples of alleged wrongdoing could result in both civil lawsuits as well as criminal charges. Assault and Battery is one such example.

Threatening Criminal Action – Even if the alleged wrongdoing would be deemed a crime, the civil plaintiff may not threaten criminal action in order to obtain a civil settlement.  This is especially the case where the criminal conduct threatened is not the subject of the civil lawsuit.

For example:  John steals Mary’s television.  Mary sues John for civil larceny.  In order to get John to settle, Mary threatens to file a police report for the theft if John does not return the television.  This is a slippery slope for Mary but it might be permissible so long as she does this properly and through counsel. But what if Mary asks for more than the television is worth?  In this example, Mary threatens to go to the police for the stolen television unless John pays Mary $100,000. Clearly here, Mary is blackmailing John since John is not simply returning the television or its actual value to Mary.  Instead, Mary has levied a price on John’s freedom, not on her T.V.

Key Differences Between Civil and Criminal Procedure

Discovery.  Civil cases allow for greater discovery because typically the civil defendant’s constitutional rights are not directly at stake, as it’s a private citizen suing through a private lawyer.

Constitutional Rights.  Constitutional rights only protect us against government action, not private action.  For example, if the government attempts to silence a journalist, that’s government action that runs afoul of the journalist’s right to free speech.  However, if another private citizen attempts to silence that same journalist, there are no free speech rights at play.