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Criminal Law

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Criminal law, also known as penal law, involves the prosecution of persons accused of committing crimes. Criminal laws identify what types of behaviors are considered crimes, what the legal rights of the accused are, what procedures must be followed to protect those legal rights, and what the government (police, judges, lawyers, etc.) can and cannot do throughout the arrest and court processes. Some criminal laws will vary from state to state but some are constitutional, meaning that the law is the same in every city of every state.

If you have been arrested or are accused of a crime, you should immediately contact a criminal lawyer. A criminal lawyer can ensure the protection of your legal rights and make sure you have the best chance at winning your case.

Role of Your Defense Lawyer

When you have been arrested or accused of a crime, your defense lawyer is your friend in the legal system. He or she will protect you from improper questioning and evidence collection, ensure the government follows the proper procedures, and help you present your case in the best possible way. A criminal court case can be complicated, and there are many paths to choose from, but a criminal defense lawyer can be your guide and help you navigate the process.

Who Establishes Crimes?

In the 1800s, laws created by the judiciary (common laws) came under scrutiny because they shifted the balance of power in favor of the judicial branch of government. Today, most states have eliminated common laws, and crimes are established solely by the legislative branch.

Your Legal Rights

Many laws are designed solely to protect people accused of crimes, creating legal rights for the accused that cannot be violated. Some are well-known, like the right to remain silent and other Miranda rights. Others, however, are less known and more difficult to apply, occurring at various stages of the criminal arrest and court processes. Any deviation from these procedures on the part of any member of the legal system may violate the defendant's rights and may impact the charges against the defendant or illegally taint the jury. Your legal rights are one of the most important things to protect, and it is the primary task of an experienced criminal lawyer to do so.

The Definition of a Crime

A crime is an act or a failure to act that the government has declared illegal and made punishable by law. There are numerous general groups of crimes such as murder, theft, and fraud. Based on their severity, these groups are divided into categories, as explained below.

Search and Seizure

The Fourth Amendment to the U.S. Constitution limits the actions of police in order to protect the privacy of the people. This amendment prohibits the police from conducting unreasonable searches and seizures. This means that in situations where people have a reasonable expectation of privacy, police must have probable cause to believe someone committed a crime before performing a search or seizure. Evidence seized as a result of an unreasonable search cannot be used to prosecute an individual.

Categories of Crime

The government divides crimes into three categories: felonies, misdemeanors, and infractions. The most serious of these crimes are felonies, with misdemeanors next in severity and infractions being the least serious. With the exception of cases in which the accused is mentally ill, all defendants have the right to defend themselves in court. Most defendants, however, choose to have a criminal defense attorney represent them.

Felonies. The most serious of crimes, such as murder and rape, are classified as felonies. Felonies are divided into various sub-categories that address factors such as repeat offenses and the manner in which the crime is committed. Felonies typically carry a jail sentence of at least one year. Almost all defendants accused of a felony hire a criminal defense attorney.

Miranda Rights

In the landmark 1966 case Miranda v. Arizona, the Supreme Court ruled that police must inform suspects of their legal rights before arresting them. These rights, which have since come to be known as "Miranda rights," consist of the following statements:

  1. You have the right to remain silent and to refuse to answer questions
  2. Anything you do say may be used against you in a court of law
  3. 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
  4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish
  5. If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney

Misdemeanors. Crimes classified as misdemeanors are not as serious as felonies. Punishment for a misdemeanor may include a fine, jail time of less than a year, or both. In many jurisdictions, misdemeanors are divided into three sub-categories: high (or "gross"), ordinary and petty. Although misdemeanors are not as serious as felonies, many people who are accused of misdemeanors choose to hire a criminal lawyer to defend them.

Infractions. Crimes classified as infractions involve minor offenses such as traffic law violations. In most states, infractions are not punishable by jail time. Even in those states where jail time is a possibility, this rarely occurs in practice. People accused of infractions seldom hire a criminal defense attorney.

Types of Crime

Within these categories, there are many different types of crimes, each with its own nuances and variations. In the United States, crimes are established at the local, state and federal levels. State and local laws are unique to the jurisdictions in which they are created. As a result, laws differ significantly from state to state. Some criminal defense attorneys specialize in handling certain crimes, so it is imperative that you find an attorney with experience handling the crime you are accused of. To learn more about your crime and how it should affect your choice of attorney, click here.

The Criminal Arrest and Court Process

The criminal arrest process can involve many participants (the accused, the police, the prosecutor, bail bondsmen, criminal defense lawyers, the judge and others) and typically consists of the following steps:

  • Arrest
  • Booking
  • Bail
  • Arraignment – if the accused pleads guilty, this is the final stage

If the accused does not plead guilty, the arrest leads to a criminal court case. Although there are many reasons for a court case to end early (plea bargaining, mistrial, etc.), a complete court case has multiple steps:

  • Preliminary Hearing(s)
  • Formal Arraignment
  • Pre-trial motions
  • Trial
  • Sentencing
  • Appeals

For more information on the criminal arrest and court process, click here.

Punishment for Crimes

In determining the punishment for a crime, the judge uses sentencing guidelines established by law makers and considers factors such as the defendant's prior criminal record, character witnesses, and the situation in which the crime was committed. In addition, the judge considers whether any aggravating circumstances exist; examples of aggravating circumstances include:

  • Cruelty
  • Malice
  • Intent
  • Reckless disregard for well-being of another
  • Acts committed against members of a protected class (minority, senior citizen, minor, handicapped, etc.)

Types of Punishment

Punishment in a criminal court case generally consists of community service and/or jail time. In extreme cases, the death penalty may be used.



Did You Know?

Laws differ significantly from state to state, and attorneys must pass exams and be licensed in a state in order to practice there.

Violent Crimes

Although FBI figures show that the rate of violent crime increased 1.3 percent from 2004 to 2005 (latest figures available), the latest National Crime Victimization Survey shows that both violent crime and property crime have dropped significantly since 1994.