“Criminal Law” is the name given to the branch of law that governs an individual’s relationship to the state. It includes the definitions of criminal offenses, which are usually established by Congress or state legislatures. The term “criminal law” also encompasses the rights of an accused and the criminal process, including arrest, arraignment, grand juries, pleas, discovery, pretrial hearings, trials, jury selection, evidence, motions and post-trial remedies. The main purpose of the criminal law is to set forth the punishment for criminal offenses. In order to prove any crime, no matter how serious, the prosecutor must prove that the accused committed an act beyond a reasonable doubt.
The criminal process can be complex and confusing, so it is important to understand your legal rights. The best way to be informed is to contact our office as soon as possible. We understand the law as it relates to the crime you’ve been charged with, and will be able to help you in making informed decisions as your case moves through the process.
Stop. You may be stopped for questioning by the police. A stop is not the same as an arrest because, although you may be detained, you aren’t moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer.
Search. The general rule is that warrants are required for searches. But search warrants are not required for the following:
Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
Automobile searches: If you’re arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
Exigent circumstances: Searches may be conducted if there are “exigent circumstances” which demand immediate action, such as to avoid the destruction of evidence.
Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
Consent: If you consent to a search of your body, your vehicle or your home, police are not required to have a warrant. You aren’t required to consent to any police searches.
Search Warrants: A search warrant authorizes police to conduct a search of a specific place, such as your residence. In order for a warrant to be issued by a judge, “probable cause” is necessary. Probable cause to search means it is more likely than not that the specific items to be searched for are connected with criminal activities and will be found in the place to be searched.
Arrest. In order to be arrested, there must be what’s called “probable cause.” This means that there must be a reasonable belief that a crime was committed, and you committed the crime. An arrest warrant is not necessary.
After you’re placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are the right to remain silent and the right to have an attorney. After your arrest, you aren’t required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.
Booking. After you’re arrested, the police will bring you to the police station for the booking process. You’ll be fingerprinted and asked a series of questions, such as your name and date of birth. You’ll also be searched and photographed. Your personal property such as jewelry will be cataloged and stored.
Arraignment. Criminal charges are processed through District Courts, Circuit Courts or Juvenile Courts. Felony charges may only be tried in Circuit and Juvenile Courts. Misdemeanors are usually tried in District Courts. Juvenile Courts try both felonies and misdemeanors. Once criminal charges are filed, you’ll make a court appearance that is known as an “arraignment”, usually in a District Court. If you’re incarcerated, this will usually occur within 72 hours of your arrest. During your arraignment, you’ll be asked to enter a “plea” to the crime you’ve been charged with. Possible pleas are:
Guilty: If you plead “guilty,” you’re admitting to the facts of the crime and the fact that you were the one who committed that crime.
Not guilty: A “not guilty” plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.
Nolo contendere: A “nolo contendere” plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea, because guilty pleas can be used against you in later civil lawsuits.
If you plead “guilty” or “nolo contendere,” there will not be a trial. You’ll then be sentenced. District Courts cannot accept a guilty or nolo contendere plea to a felony. The case will be certified (transferred) to Circuit Court for disposition.
During the arraignment, the court will also: Set or refuse to set bail or release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations.
Bail. Bail is money or property put forth as security to ensure that you’ll show up for further criminal proceedings. Bail can be posted in cash or by a pledge of property (if permitted in that court) or by a bail bond posted by a professional bail bondsman, an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.
Speedy Trial. You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that trials be held within a certain time frame after a person has been charged with a crime. This right can be waived by asking for additional time for the preparation of your defense. If you are charged with an offense in Circuit Court and incarcerated in a city or county jail pending trial, you are required to be released if you are not brought to trial within nine months from the date that charges were filed against you or, in some instances, from the date of your arrest.
Trial. Many prosecutors will consider “plea agreements,” although it’s not legally required. If you don’t reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage. Usually, if you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by Pleading guilty; or choosing a bench trial (a trial in front of a judge only). If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury. Jury trials consist of two parts: the guilt or innocence phase where the jury determines whether you committed the crime; and the sentencing phase where the jury determines your sentence.
Appeal. After conviction and sentencing, you have the opportunity to file an appeal of your sentence. If you were convicted based on a guilty plea, you generally may not appeal your conviction. If you were convicted after a trial, you have an absolute right to appeal. An appeal is not a retrial of the case, but it is an examination of the trial record to ensure that the proceedings were conducted in a fair manner. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal. There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what’s called “legal error” which may include:
Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
Lack of sufficient evidence to support a verdict of guilty
Mistakes in the judge’s instructions to the jury regarding your case
You may also appeal due to misconduct on behalf of the jurors, or you may appeal if there is newly discovered evidence to exonerate you.
Sex Crimes. Thanks to Megan’s Law, passed by Congress in 1996 as an amendment to the Jacob Wetterling Crimes Against Children’s Act, every state and the District of Columbia require sex offenders to register with state or local law enforcement officials after being released from prison. These laws help ordinary citizens keep themselves and their families safe by providing them access to information about potentially dangerous sex offenders living in their neighborhoods. The original Megan’s Law was enacted in 1994 after seven-year-old Megan Kanka was lured into a neighbor’s house then brutally raped and murdered by a known sex offender. The offense started a nationwide movement toward creating state sex offender registries. Although the details vary from state to state, Megan’s Law requires sex offenders to notify state or local law enforcement agencies of any change of address after being released from prison. Law enforcement officials then notify the public of sex offenders living in their neighborhoods. If you are convicted of a “sex crime”, you will be required to register through the local Sheriff’s office.
Expungement. If you are found guilty of committing an offense, you may, under certain circumstances have the record of that offense expunged or “sealed” as it is known in here. Once you successfully complete your sentence, you must contact an attorney to begin the process. The court will not automatically seal your record. The attorney will need a copy of the “Judgment and Commitment” Order from the office of the Circuit Clerk in the county in which you were convicted, which you may obtain by contacting the Clerk’s office and making the request. It helps if you know your case number.