Criminal Law

Authored by Wendy Witt, Esq.

Criminal laws, also known as "penal laws", are designed to conform behavior and protect individuals and society, as a whole. Conduct is either barred or mandated, meaning that certain conduct that has been deemed harmful is prohibited and conduct that is deemed necessary is required.

Federal crimes are detailed in Title 18 of the United States Code; crimes at the state or local level are listed in each state's or local authority's individual crimes code.

Criminal defense attorneys represent people who have been arrested or are being questioned for a crime. A criminal conviction stays on your record forever and the consequences are fierce: jail; fines; job loss; family discord; loss of professional license; loss of reputation in the community; difficulty renting an apartment, buying a house, or getting a job.

While we provide a general overview herein, if you or a loved one has been accused of a crime, consult with a qualified attorney in your state. Consulting with a criminal defense attorney does not mean that you committed a crime or that you're guilty. It simply means that you want good advice so you can make proper decisions.

If you have been the victim of a crime, consult with the district attorney in the county where the crime took place.

Criminal Acts and the Criminal Failure to Act

To emphasize, criminal law seeks to either prevent an act or require an act; and, the government prosecutes those it thinks committed a crime. It is up to the jury to determine whether the crime was, in fact, committed.

For example, these laws prohibit certain conduct:

  • Drunk driving for driving while intoxicated.
  • Murder for killing someone with the requisite mental intent.
  • Rape for forcing intercourse.
  • Drug offenses for selling cocaine.
  • Child abuse for hitting a child.
  • Cruelty to animals for kicking a dog.

On the other hand, these laws mandate certain behavior and punish those who don't act when they have a duty to do so:

  • Child neglect for not getting your child appropriate medical care.
  • Cruelty to animals for not feeding your dog.
  • Income tax evasion for not filing and paying your income taxes.

Criminal law identifies crimes so that all people have appropriate expectations, understanding what constitutes a criminal act or the criminal failure to act. In addition, criminal law encompasses:

  • The civil rights of the accused and the corresponding criminal procedures such as Miranda rights and the right to a speedy trial.
  • Defenses such as self-defense.
  • Punishment such as time in jail or restitution paid to the victim.

Classification of Crimes: Felonies, Misdemeanors, and Summary Offenses

  • More serious crimes are classified as felonies and they are punishable by jail time of at least one year. Each state has different levels of felonies; federal law as well.
  • Less serious crimes are misdemeanors - They are punishable by one year or less of jail time. Often, there is no jail time. Probation can be handed down by a judge if certain rules and conditions are met during probation.
  • Summary offenses are the least serious and usually involve paying a fine such as speeding.

The Purpose of Punishment

Those convicted of violating criminal laws are punished with jail time, probation, fines, restitution, and/or community service.

Although the actual effect of punishment (especially imprisonment) remains controversial, the stated goals of punishment for criminal behavior are to:

  • Deter future criminal behavior of the convicted person as well as other members of society,
  • Rehabilitate the convicted person, and
  • Provide restitution to the victim and society.

For 32 states that still have the death penalty, one of the potential penalties is death. These are considered “capital” cases and first degree (pre-meditated) murder is the best example. Visit the Death Penalty Information Center to see if your state is listed.

Burden of Proof and the Presumption of Innocence

The Burden of Proof is the standard a party must meet to prove the facts of a case. The Presumption of Innocence is the principle that one is innocent until proven guilty.

Beyond a Reasonable Doubt

"Beyond a reasonable doubt" is likely one of the most important terms in all of criminal law. It's the standard of proof that determines whether the accused is guilty and will, therefore, be punished – or not.

This standard is much higher than the standard in a civil case (e.g. injuries stemming from a car accident or medical malpractice).

  • Reasonable doubt means that the jury must believe to a high degree of certainty (not necessarily 100%, but close) that the prosecution has proven all parts (aka "elements") of the crime. The prosecution must score a touchdown, so to speak.
  • In civil cases such as a car accident, medical malpractice, or slip and fall, the plaintiff (i.e. the injured person) must only prove that it is more likely than not that the defendant was negligent – negligence is the usual standard, but there are others.

Reasonable doubt can be likened to the goal line in a football game. In a civil case, the plaintiff must only get the football to the 51st yard line and prove his or her case by a preponderance of the evidence – NOT beyond a reasonable doubt.

Reasonable Doubt Versus Preponderance of the Evidence: What's the Difference?

A preponderance of the evidence standard is much lower than beyond a reasonable doubt standard. To continue the football analogy:

  • In a civil trial (e.g. wrongful death case) the plaintiffs and their personal injury attorneys only have to get the football to the 51st yard line - proving it was more likely than not that the defendant caused injury or death.
  • In a criminal trial (i.e. murder case), the prosecutors have to get that same football all the way to the goal line and score - and no reasonable person could argue that the ball wasn't at the goal line.
  • Side note: In a tax court case, the law assumes that the IRS is correct in its findings and the taxpayer (usually by way of his tax attorney) has to prove that the IRS is wrong -opposite of "innocent until proven guilty".

The differences in the standard of proof – beyond a reasonable doubt and preponderance of the evidence – goal line versus 51st yard line – is the reason O.J. Simpson was acquitted of murder in the criminal case, but found guilty of wrongful death in a civil case.

For example, in OJ Simpson's infamous criminal case, the prosecutors had to prove that OJ murdered Nicole Brown Simpson and Ronald Goldman beyond a reasonable doubt. His criminal defense attorneys successfully refuted the evidence and prosecutors were unable to prove murder by this high standard. As a result, Simpson was found innocent of murder.

On the other hand, in the civil trial, the plaintiffs' attorneys (personal injury attorneys) only had to prove their wrongful death case by a preponderance of the evidence. As a result, Mr. Simpson was found responsible for causing those same deaths under a wrongful death claim.

Do I Need a Criminal Defense Attorney?

If you agree with any 1 of these 3 statements, you need to consult with a criminal defense attorney now.

  • I have been arrested for a crime.
  • A loved one has been arrested for a crime.
  • I am being questioned in a crime or there is a warrant out for my arrest.

You have the right (as established way back in 1789) to represent yourself, but self-representation may not be the best idea. Your life, liberty, assets, and future may all be at risk. And what about your family? You need an expert in criminal law to stand up for you and protect your rights.

To connect with a criminal defense attorney, you could ask a friend for a referral, call the bar association for a list, or if you want to connect right now, use www.attorneys.org. It's free, private, and without obligation. Good luck with your case; we wish you the best.

After You’ve Hired an Criminal Lawyer

The time for questioning and thinking of going elsewhere for legal advice needs to be over after you make your hiring decision. If there is a red flag or pang in your gut, then follow your instinct right there in then. Hire a different lawyer.

However, once you've hired your criminal defense attorney, chalk any discomfort up to a very difficult and stressful situation. You cannot control the situation and must trust your attorney and follow direction.

You are part of your own defense; thus, you must:

  • Remind yourself at all times that your attorney is on your side and all comments are to help you. If your attorney says to do something, do it. If your attorney says not to do something, don't do it.
  • Know that there is no conspiracy between your attorney, the judge, district attorney, witnesses, or anyone else. Your attorney is always looking out for your best interests and will act accordingly. Your attorney's professionalism and cooperation is good for you.
  • Be honest and forthcoming to a fault. Tell your criminal defense attorney exactly what happened – how it happened – and – when it happened. If something makes you look bad – so what – your attorney needs to know in order to formulate and put forth your best defenses. Withholding information – even information that looks damaging on the surface – may hurt your case.
  • Show up and return all phone calls and emails. If you have a meeting with your attorney or are due in court, be there – early and well dressed and well groomed. It matters.

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