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Criminal Case Law Information

Criminal Case Law Information

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Criminal Case Law and Procedure

Protections Under the U.S. Constitution
A defendant has the right to:

Remain Silent

Competent Counsel

Confront His/Her Accuser

Be Free of Cruel and Unusual Punishment

A defendant also has rights as described below in the Fourth, Fifth, Sixth and Eighth Amendments.

Amendment IV
The right of the people to be secure in their persons, houses, papers, 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.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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Probable Cause
You can be arrested without a warrant if law enforcement believe there is probable cause. Generally probable cause exists when there is enough evidence to cause a reasonable person to believe the “accused” has committed the crime in question. In other words if the police have evidence you have or are about to commit a crime, then they have probable cause to make an arrest.

Miranda Warning and Criminal Case Law
According to the Fifth Amendment, after the police detain a criminal suspect, they must read you the Miranda warning, which at the minimum must be:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

Search Warrants
There are two basic types of warrants that may be issued by a judge - an arrest warrant and a search warrant. An arrest warrant gives law enforcement the authority to make an arrest of a particular person for a particular crime. If police have “reasonable” suspicion a crime was committed, then they can make an arrest without a warrant. If you’re arrested, law enforcement can search you and the area around you (meaning they can check and search the area within an arm’s length ) to find evidence they think is related to the crime.

If you are arrested without a warrant, you are entitled to a timely hearing to see if there is enough evidence to be formally charged with a crime. Criminal case law states that even if there is not enough evidence at the time and your are released, it is still possible for you to be arrested for the same crime at a later date.

If a search warrant is issued, it is usually carried out at the discretion of the police (note: the warrant may indicate when the search is to be conducted). The police are expected to announce when they enter the premises being searched unless they think evidence may be destroyed or lost. Everyone in the premises will be detained during the search pending the completion of the search. If evidence is found and there is probable cause to believe people detained had something to do with the crime, they may be arrested and charged with the crime for with the search was issued.

If the police don’t have a warrant and you give them permission to search you, your Fourth Amendment rights are waived and the search is considered legal. Any evidence found during this search to which you consented can be used against you. However, it is illegal if you do not consent to the search. It is a violation of your Fourth Amendment rights, which protects you from illegal searches and seizures.

Amendment IV
The right of the people to be secure in their persons, houses, papers, 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.

(for more information about protecting your rights go to www.flexyourrights.org or call criminal lawyers hotline 877-529-6399.

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Pre-Charging and Police Background Investigation
When you are suspected of committing a criminal offense, you need a criminal lawyer immediately. Your criminal case law attorney can initiate pre-filing or criminal defense investigation and get in contact with law enforcement and other investigating officers on your behalf. Too often we are contacted after the fact when people have already given a statement to the police.

** REMEMBER ** YOU HAVE THE RIGHT TO REMAIN SILENT AND NOT TO TALK TO THE POLICE.

During a pre-charging investigation, your criminal lawyer will contact the police for you, since nothing the lawyer says can be used against you. Police are very good at getting people to talk. You will need an attorney to talk to investigators on your behalf, especially if you are NOT GUILTY of the charges. The main purposes of criminal and pre-filing investigations are to advise you of your rights and to negotiate with police, district attorneys and/or prosecutors. It is also an opportunity to show the prosecution that they have a weak case, therefore not worth pursuing. Not only would you be saved from the emotional toll of prosecution, you can save thousands of dollars as well on bail, court and other criminal case law fees.

Getting Arrested
Criminal prosecution begins with an arrest and ending at a point before, during or after trial. The majority of criminal cases end when a criminal defendant accepts a plea bargain offered by the prosecution. In a plea bargain, the criminal lawyer in New York defendant chooses to plead guilty before trial to the charged offenses, or to lesser charges in exchange for a more lenient sentence or the dismissal of related charges.

A police officer may arrest a person if:

The officer observes the person committing a crime

The officer has probable cause to believe that a crime has been committed by that person; or

The officer makes the arrest under the authority of a valid arrest warrant.

After the arrest, the police books the suspect. When the police complete the booking process, they place the suspect in custody. If the suspect committed a minor offense, the policy may issue a citation to the suspect with instructions to appear in court at a later date.

If you are stopped or arrested by police for anything from DWI to credit card fraud to loitering, there are some important things to keep in mind. Make sure you know your rights. The American Civil Liberties Union (ACLU) provides this information if you are arrested:

Make sure you stay calm

Try not to argue with police

Stop and think before you speak because anything you say can be used against you in a court of law

Do your best to avoid complaining at the scene and tell police they are wrong. It might make a bad situation worse

Ask for a criminal defense lawyer and make sure you talk to no one but your lawyer

If possible get the names of witnesses and/or the arresting officer's name or badge number. Write everything down as soon as possible

Source: Law for Dummies by John Ventura, JD

For more information about protecting your rights go to www.flexyourrights.org or call criminal lawyer Manhattan helpline at 877-529-6399.

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Bail Bonds Hearing
If a person in police custody is granted bail, he or she may pay the bail amount to be released from jail. Release is dependent on the person’s promise to appear in court with thei lawyer at all future scheduled proceedings. Bail may be granted to a person immediately after booking or at a later time after a bail hearing. On the other hand, a person may be released on his "own recognizance." A person released on his or her own recognizance does not have to post bail, but must promise in writing to appear at all future court appearances. "Own recognizance" release is considered after the court reviews the seriousness of the charges, the person's criminal history record, their threat to the community and ties to family and employment. Your lawyer can explain this process more in depth.

Arraignment Proceedings
A person arrested on criminal charges attends his or her first court appearance at the arraignment with their lawyer. During an arraignment, the judge reads the charges filed against the person and the defendant chooses to plead "guilty," "not guilty" or "no contest" to those charges. At that time, the judge will review the person's bail and set dates for future proceedings.

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Preliminary Hearing and Grand Jury Proceedings
The government will usually bring criminal charges in one of two ways. First, a "bill of information" is put in place by a preliminary hearing or by grand jury indictment. In the federal criminal law system, cases must be brought by indictment. However, the state courts are free to use either process. Both preliminary hearings and grand juries are used to review the existence of probable cause. If there is no finding of probable cause, charges will be dropped or dismissed and the person will not be forced to stand trial.

A preliminary hearing, or preliminary examination, is a proceeding in which the defense attorney questions witnesses and the prosecutor and defense lawyer makes argument. The judge ultimately decides if there is probable cause. On the other hand, the grand jury hears only from the prosecutor. The grand jury may call their own witnesses and ask for further investigations. The grand jury will then then decide if there is enough evidence to indict the accused.

Pre-Trial Motions
Pre-trial motions are brought by both the defense attorney and prosecution in order to resolve final criminal case law issues and determine what testimony and evidence will be admissible at trial.

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Trial Proceedings
After hearing all arguments at trial, the judge or jury will decide guilt of the accused. The prosecution must prove beyond a reasonable doubt that the defendant committed the crimes as charged. The defendant has the right to a jury trial in most criminal case law matters. Wither a jury or judge makes the final determination of guilt or innocence after hearing opening and closing statements, examination and cross-examination of witnesses and jury instructions. If the jury does not reach a unanimous verdict, the judge might declare a mistrial, and the charges and case will either be dismissed or a new jury will be chosen. If a judge or jury finds the defendant guilty, the next step in the process is sentencing.

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Sentencing
During sentencing, the court will decide the appropriate punishment. In determining an appropriate penalty, the court will consider a number of factors, including the type and severity of the criminal offense, criminal history, personal circumstances and degree of remorse (or lack of). There are many mitigating factors (details that call for a more lenient sentence) or aggravating factors (which require more severe sentencing) that influence a judge when determining what penalty is appropriate or how long the person should be sentenced to jail or prison. Some factors are:
Were you the mastermind or just assisting in committing the crime?
Is there prior criminal record or history?
Were there any outside pressures that caused you to commit the offense?
Was anyone harmed during the crime?

Find more information on sentencing standards see our free articles link at the bottom of our Free Resources.

Appeal
An person convicted of a crime may appeal that conviction and ask that his or her case be reviewed by a higher court. If that higher court finds an error in the case or the punishment imposed, the court may reverse the conviction or find that the case should be re-tried.

Expungement or Sealing a Criminal Record
In some cases people accused or convicted of a crime can apply to have their record expunged or sealed. Expunging a record means destroying the criminal record and sealing the criminal record means only making the recrd available to law enforcsment agencies and not potential employers, etc...

People often want help getting their criminal record expunged and to expunge a record means, for all intents and purposes, means to treat the expunged record as if it does not exist. Expungements vary from state to state. However, having your record expunged is usually only available to people who have not been convicted of an crime. Even if you have not been convicted, a criminal history record can show any arrest or citation even if you are found not-guilty in court. Understandably, people who have been charged with committing a crime are very motivated to expunge their records. People wanting to expunge or seal a record do so to clear their name and attempt to get some normalcy back after being arrested. Even if charges are dropped, people often have to deal with a tremendous amount of social backlash and the fact employers, professional licensing agencies and other places do criminal background checks and this will affect future employment and other issues. The need for expungement and record sealing is to help people get their lives back, clear their criminal record, and not lose all of the rights associated with a criminal record.

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Criminal case law terms commonly used:

Mens Rea
Mens Rea is latin for "guilty mind". Mens rea is criminal intent or the thoughts and intentions behind a illegal or prohibited act (including knowledge that the act is illegal). Mens rea is often at issue in more serious crimes such as murder.

Knowing or Knowingly
Many criminal law statutes punish people who “knowingly” commit wrongdoing. The knowingly crime indicates the mens rea or “guilty mind” and prevents people who make innocent mistakes from people who have criminal intent from being convicted of crimes.

“Specific intent” crimes
These are crimes that require a specific intent and show that the accused acted “knowingly“. Specific intent crimes involve a secondary purpose when committing and illegal act.

Maliciously
Malicious in criminal law means intentionally and knowingly committing an illegal act (malice meaning having evil or spiteful intent as it is more commonly defined by non criminal case law definitions).

Willfully
Willful mean the criminal act is done on purpose and with intent.

Motive
Cause or reason that moves the will and induces action. An idea, belief or emotion that impels or incites one to act in accordance with his state of mind or emotion. In common usage intent and "motive" are not infrequently regarded as one and the same thing. In law there is a distinction between them. "Motive" is said to be the moving course, the impulse, the desire that induces criminal action on part of the accused; it is distinguished from "intent" which is the purpose or design with which the act is done, the purpose to make the means adopted effective. Criminal Case Law Source: Black's Law Dictionary, Sixth Edition

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Criminal Lawyer Manhattan Criminal Case Law Source:
The Criminal Law Handbook by Paul Bergman and Sara J. Berman-Barrett