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Criminal Law

Q. What is a crime?

A. A crime is a wrongful act that violates a federal, state or municipal law and causes injury or harm to persons or society as a whole.

Q. What is a criminal investigation?

A. When the police receive a report of a crime, investigating officers are sent to the scene to find evidence, preserve the crime scene, investigate potential defendants, prepare reports of their findings, and ultimately make an arrest.

Q. What is an arrest?

A. The taking into custody of a person suspected of having committed a crime is an arrest; it does not mean that the individual is guilty. 

Q. What is probable cause?

A. Probable cause means reasonable suspicion based on credible evidence that a person has committed a crime.

Q. What happens if a person is arrested without a warrant?

A. The defendant is entitled to a prompt hearing before a judge to determine whether there is sufficient probable cause to formally charge a defendant with a crime. 

Q. When can police search an individual or premises?

A. The police can search the defendant for evidence related to an alleged crime at the time of an arrest. They can also search the area that is in close proximity to the defendant.

Q. When will the judge issue a search warrant?

A. If the judge believes there is probable cause or a reasonable belief that a crime has been committed, the judge will issue a search warrant stating exactly what the police are looking for and where they can search.

Q. How long can the police hold a suspect before filing charges?

A. If the police have probable cause to believe that a suspect has committed a crime, they may detain the suspect for a brief period, generally less than 48 hours.

Q. If the police pull a driver over for drunk driving, what tests can they force a suspect to take?

A. If the police observe a suspect driving erratically, they are permitted to stop the vehicle. If the police smell alcohol on the suspect's breath or have reason to believe the suspect is intoxicated, they have the right to administer "field sobriety" tests. The suspect will be asked to walk a straight line and touch his finger to nose with eyes closed. If the police reasonably believe that a suspect is under the influence of alcohol, they can request the suspect to give blood, a urine sample or take a breath test. These tests measure the amount of alcohol in a suspect's system.

Q. What will a defendant be required to provide after an arrest?

A. The police can force a defendant to provide fingerprints (generally during the booking process), a handwriting sample and a voice recording.

Q. What is a confidential informant?

A. The police can use a confidential informant, a person who supplies information to the police without having his identity disclosed, to develop evidence. The information obtained from a confidential informant can provide probable cause for the issuance of a search warrant. A confidential informant is generally one who has provided reliable information in the past and who would be in danger if his identity was disclosed.

Q. What procedures must be followed during an arrest?

A. The police do not have to tell a defendant of the nature of the alleged crime nor are they required to advise a defendant of their Miranda rights unless they intend to conduct an interrogation. The police may not use excessive force during the arrest.

Q. When is a defendant in custody?

A. The law considers a suspect in custody when they have been arrested or deprived of their freedom of movement in a significant way.

Q. What is an interrogation?

A. An interrogation consists of direct or indirect questioning by the police intended or likely to elicit incriminating information.

Q. When does a defendant have a right to an attorney?

A. A defendant has a constitutional right to counsel before and during police interrogation. This right continues throughout the remainder of the criminal process.

Q. What is the Miranda Rule?

A. The Miranda Rule was developed to protect the defendants right against self-incrimination. The Miranda warnings ensure that people in custody realize that they do not have to talk to the police and have a right to an attorney. The warning must advise the defendant that they have a right to remain silent, a right to an attorney, that an attorney will be appointed if the defendant cannot afford one, and that statements made voluntarily can be used in a subsequent criminal proceeding. If the Miranda warnings are not given, a defendant is not entitled to dismissal of criminal charges. Rather, any statements made by a defendant who has not been Mirandized are inadmissible in the criminal case.

Q. What defenses are available in a criminal trial?

A. The most common defenses are alibi, entrapment, self-defense or insanity. 

Q. What happens between the arraignment and the trial?

A. In the period before trial, defendants will file pre-trial motions to suppress (exclude on technical grounds) evidence, and determine the nature of the evidence and the identity of witnesses that will be used by the state. Defendants will rarely give statements before trial due to their constitutional right to be protected from self-incrimination. The possibility of a plea bargain will also be explored.

Q. What determines the sentence that the judge will impose?

A. The court will consider aggravating and mitigating factors. Aggravating factors include prior convictions, whether the crime was violent, and similar considerations. Mitigating factors include stable employment, family history and volunteer work on behalf of the community. The court may impose a fine, put the defendant on probation (release the defendant under conditions, including reimbursement, counseling and reporting to a probation officer) or send the defendant to jail. Many states have mandatory sentences and sentencing guidelines which limit the court's discretion in imposing a sentence. Mandatory sentencing guidelines do, however, assure that all defendants will be treated equally.

Q. Can a conviction be appealed?

A. A person convicted at trial has a right to appeal the conviction at least once, and will be required to show that serious errors were made during the course of trial.

Q. What is a habeas corpus proceeding?

A. A habeas corpus proceeding challenges a conviction or detention in jail on the grounds that the defendant's constitutional rights have been violated. The court may conduct an evidentiary hearing as part of the proceeding.



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