Criminal Law Basics

General Criminal Law Information

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What is a Crime ?

A crime is an act committed or omitted, in violation of a public law that forbids such conduct. A person that violates such laws is called a criminal. States desire to prevent crimes allows for various punishments in accordance with state penal codes upon conviction, including fines, incarceration and/or death.

Federal, state and local laws vary in their approach on how to regulate behavior when drafting laws and imposing punishment. All states categorize crimes as either some type of an "infraction", a "misdemeanor," or an "felony." An infraction, sometimes also called a violation is a petty offense that is usually punished by a fine with no jail time. In most states, a misdemeanor is a criminal offense that can carry up to a year in jail. A felony is the most serious type of criminal offense and carry penalties of incarceration that oftentimes exceed a year. Felonies are usually the most serious types of crimes that a society aims to punish, and state statutes punish most severely for crimes involving a felony such as acts of rape, acts of murder or homicide, acts of kidnapping, burglary or arson. A prosecutor has wide latitude and flexibility when charging a criminal and accepting a plea bargain, and a negotiated settlement may reduce a sentence depending on available evidence and prosecutor discretion.

The steps in a criminal proceeding depend on the type of crime committed and classification of such a crime. The commission of a minor offense also called a petty offense allows for a person to plead innocent or guilty in a summary proceeding. A summary proceeding dispenses with the formal procedures that are normally applicable to a more serious and complex criminal matters. Certain legal rights are minimized or overlooked in a summary proceeding so as to expeditiously resolve the matter before the court. In contrast, the commission of a misdemeanor or a felony has much stricter procedures to safeguard the legal rights of the accused. The United States Constitution guarantees a person that is accused of a crime to a criminal trial. There is a presumption of innocence and a prosecutor must prove to a judge or jury that the accused is guilty "beyond a reasonable doubt".

Criminal procedure differs by jurisdiction, but the process generally begins with a formal criminal charge with the person on trial. Prior to the trial there is an arraignment whereby the defendant enters a plea of guilty or not guilty. After a plea of not guilty, the judge or magistrate may set bail and allow the defendant to remain free or deny bail and incarcerate the defendant during the pending of the trial. A preliminary hearing is then held shortly thereafter if the defendant pleads not guilty at his or her arraignment. At a preliminary hearing, a judge determines whether there is sufficient evidence that a person indeed committed a crime to stand trial. At a preliminary hearing a judge does not attempt to determine the innocence or guilt of a person but only whether the prosecution has sufficient evidence. State laws vary whether there is a mandatory requirement of preliminary trial. However, federal law requires that a preliminary hearing must usually be held within 30 days from the date when the defendant was arrested when federal charges are involved.

Common Types of Crimes and Affirmative Defense

Below is a non-exclusive list of common types of crimes in most criminal codes. Some crimes have an affirmative defense that must be pleaded at trial : Assault, Battery, Bribery, Burglary, Child Abuse, Child Pornography, Computer Crime, Controlled Substance, Credit Card Fraud, Drug Crime, DUI, Embezzlement, Fraud, Homicide, Identity Theft, Larceny, Manslaughter, Money Laundering, Murder,Perjury, Prostitution, Rape, RICO, Robbery, Scams, Securities Fraud, Sex Crimes, Shop Lifting Theft, Weapons, White Collar, and and Wire Fraud

An affirmative defense attempts to introduce evidence that excuses the conduct of the act so as to make the conduct not punishable. Affirmative defenses differ from ordinary defenses in so far as the burden of proof resides on the defendant to offer evidence beyond that claimed by the plaintiff. An affirmative defense will negate the criminal liability even when it is proven that the person committed a criminal act. Typically, the defendant concedes the unlawful conduct but introduces evidence to excuse or justify the conduct. In criminal prosecutions, common examples of an affirmative defenses are claims of self defense, a plea of insanity, being subject to duress, a claim of intoxication, or that the statute of limitations to prosecute the crime has expired.

When is Drinking and Driving Illegal ?

Driving under the influence (DUI) also known as driving while intoxicated (DWI) is the offense of driving or operating a motor vehicle while impaired by alcohol or other drugs. All 50 states have now set .08% blood alcohol concentration (BAC) as the legal limit for establishing that a driver is incapable of operating a motor vehicle safely above such a BAC level. Commercial drivers must maintain a BAC below .04 and a person under the age of 21 is not allowed to drive with a blood alcohol level that exceeds .02 or .01 in most states. The evidence to support a crime of drinking and driving mostly include officer interpretation, field sobriety tests and breathalyzer results but can also include eyewitness testimony and dash-cam video.

A person that is pulled over for suspicion of drinking and driving may or may not have affirmative obligations to cooperate with a police offer depending upon state law. A person may refuse to answer any incriminating questions that could offer evidence of self-incrimination. Consequently, a person that refuses to talk with law enforcement because of slurred speech or an odor of alcohol may refuse to answer a request to learn the point of origin and the destination of the driver. Such a person that refuses to answer such questions may have an unfavorable inference drawn from the refusal to answer but it is not per se unlawful not to talk. Participation in field sobriety tests are also optional but a person that refuses to participate may have an unfavorable inference drawn. Many states however do have mandatory breathalyzer requirements for the privilege of driving that cannot be refused. A suspension of a drivers license may be a consequence of refusal.

A DUI conviction may carry criminal penalties including fines, jail time, or probation. Each state law is different depending upon the circumstances of the offense. Factors that influence a DUI sentencing include whether the violation included reckless driving, whether there is a past history of DUI violations, whether a child was inside the vehicle, or even whether a person was injured or even killed.

What is an unreasonable search or seizure?

An search or seizure is considered unreasonable when it violates the Fourth Amendment of the Constitution that grants a person a reasonable expectation of privacy. The U.S. Constitution and subsequent case-law interpreting the Fourth Amendment have found that evidence is inadmissible that was obtained in an unlawful manner that violates this right. A government authority may not conduct the search of a person or his premises without a warrant that allows such a search based on sufficient "probable cause" to believe there is evidence that a crime has been committed. There are limited exceptions to the warrant requirement but otherwise a search or seizure that occurs without a warrant is per se unreasonable and unconstitutional.

Exceptions that allow for a search and seizure of evidence are when it is incident to a lawful arrest, when evidence is seized that is in plain view, when a search is conducted with consent, when there is a reasonable suspicion of a criminal act that goes beyond mere suspicion. This is oftentimes referred to as stop and frisk allowance. A government authority may also conduct an automobile search when there is sufficient probable cause because there is a diminished expectation of privacy in an automobile. Finally, a government authority in hot pursuit of a suspect may conduct a search and seizure of evidence. These exceptions to the right of privacy are subject to the court granting that the exception has been properly applied.

The Exclusionary Rule

Any evidence that is obtained as a result of an unreasonable search will be excluded from trial. This is called the exclusionary rule. The failure to obtain a warrant will result in the court suppressing the incriminating evidence so as to deter government authority from misconduct. Also, any subsequent evidence that is obtained as a result of the first illegal search will also be excluded pursuant to the "fruit of the poisonous tree" rule. The court will suppress evidence seized in violation of the Fourth Amendment as well as any evidence derived from the illegal seizure. Courts usually do not extend the sanction beyond the criminal trial so that the evidence is admissible for a grand jury, at a civil tax trial, at a parole revocation hearing, at a child protection hearing, or to prove a separate crime of perjury. Whether the exclusionary evidence rule is applied in civil cases or administrative proceedings is usually determined by the foreseeable deterrent effect it would have on government authorities. In instances in which the illegal search is not the same government agency, then suppressing future evidence from a different government agency is not as compelling as a justification. There is also a doctrine of inevitable discovery whereby illegally obtained evidence is nevertheless admissible, provided the prosecutor can establish by a very high degree of probability that even without the fourth amendment misconduct, that the same evidence, would inevitably have been uncovered in the normal course of police investigation.

Questions To Ask A Criminal Lawyer When Hiring

A person that is hiring a criminal lawyer has many questions to make sure that they are hiring the right attorney. A proper assessment must be made of the attorneys background and experience, an assessment of the particular facts of the case, an overview of case management as regarding other personnel working on the case and issues of attorney fees and retainer

Learning about the background and experience of the attorney is significant to discern the lawyers competency to represent a person in the matter. A person hiring a criminal lawyer should know where the attorney attended law school and when did they graduate, a determination of how long the attorney has been practicing criminal law, a familiarity with the specific procedures of the court where the matter will be heard, a familiarity with the specific charges that are brought and also whether they have represented other clients in similar circumstances. It is also a good idea to learn whether the attorney frequently goes to trial or negotiates plea deals.

An assessment of the case entails what to expect at different stages of the process including arraignment, preliminary hearing, and trial. There should be an evaluation of the legal options, legal strategy and an analysis of legal aspects of the case that are both favorable and unfavorable. A client should be able to discern from speaking with a criminal lawyer on these subjects whether the attorney has knowledge and competency to represent the client in the action.

The issues involving case management are not to be overlooked as unimportant details when deciding on whom to hire as a criminal defense lawyer. It is important to know other people that will will be working on the case because it is important to determine not just the responsibilities of other people but also who will be personally be representing the individual in court. It is important to have confidence in all members of a legal support staff and it may be necessary to meet them to learn the point of contact for future communication.

A determination of the overall financial costs for hiring a criminal lawyer is perhaps one of the most significant details. Legal fees are typically determined on a fixed or hourly basis and the ability to afford an attorney throughout the entire case will effect the ability to have effective representation.

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