What Is Criminal Law?

Use these links to jump to different sections:

• Types of Common Crimes and Defenses
• What Happens When You’re Arrested
• Plea Negotiations: What Happens Before Trial
• The Trial: What Happens When Your Criminal Case Is Adjudicated
• Know and Defend Your Legal Rights
• Should I Talk to a Criminal Defense Lawyer?
• Criminal Defense Attorney FAQs

What happens when you are charged with a crime? You probably know about arrest and trial, but there’s a lot that happens in between that you may not be aware of. In fact, many criminal cases settle before ever reaching trial. 

Criminal law is complicated, as both state and federal criminal justice systems exist. Each system is complex, and they don’t always work the same way. The following is designed to help you understand the basics of how a criminal case makes its way through the courts so that you feel prepared to seek legal help. 

Types of Common Crimes and Defenses 

“Substantive criminal law” is the general term for the state and federal laws that make certain conduct illegal. Each state has its own criminal code defining what conduct constitutes a criminal offense and how the judicial system will punish it. 

Common criminal offenses run the gamut and include:  

• Sexual offenses 
• Assault and battery 
• Drug possession 
• Driving under the influence
• Fraud and embezzlement 
• Voluntary and involuntary manslaughter  
• Murder of the second and first degree 

Illegal conduct can be charged as a felony, misdemeanor, or infraction. Felony charges result from serious misconduct such as murder or rape and receive the most severe sentence. On the other end of the spectrum, infractions involve minor or petty offenses such as traffic violations. Many infractions may not even be treated as crimes. 

Each state determines the level at which illegal conduct will be charged. For example, a felony in New York might be a misdemeanor in Missouri. Different states also provide different defenses to crimes, including: 

• The defendant’s actions were justified due to self-defense or some other circumstance 
• The defendant was coerced into committing the crime 
• The defendant abandoned their course of action before actually committing the crime 
• The defendant was unaware of what they were doing by virtue of insanity or intoxication 

There’s probably nothing more serious in the average person’s life than being charged with a criminal offense. So, I generally recommend to people that they get the best criminal defense lawyer they can reasonably afford… Initial consultations are helpful in determining how much risk the client is shouldering if they choose to go without a lawyer… We fully inform them of the risk [and] let them know that a lawyer is there to help them avoid a criminal conviction.

What Happens When You’re Arrested 

When law enforcement arrests someone, they will write a report. Law enforcement submits the report to the prosecutor’s office, where a criminal prosecution attorney will read it and decide whether to bring criminal charges.  

If the prosecutor declines to bring a charge based on the report, then your case likely ends there. If, however, the prosecutor decides to bring charges, they will use one of two processes depending on your jurisdiction and prosecutor preference: 

1. Grand Jury

One option is for the prosecutor to present the charges to a grand jury. The grand jury process is private, and the charged party is usually not allowed to attend. The grand jury will listen to all the prosecutor’s evidence and decide whether to indict. If the grand jury declines, the prosecutor can bring more evidence to the same jury or file charges anyway. 

2. Preliminary Hearing

If the prosecutor does not use the grand jury process and files charges first, the prosecutor must bring the evidence to a preliminary hearing with a judge. The person charged will be able to attend this hearing and present evidence. After both sides present their evidence, the judge will decide whether the prosecutor has enough evidence to proceed to trial. 

Expert Insight: Get a Lawyer as Soon as Possible 

“The first statement someone should make when contacted by law enforcement is, ‘I would like an attorney.’ And then they should not deviate from that,” says Steven F. Fairlie, a criminal defense lawyer at Fairlie & Lippy in North Wales, Pennsylvania. “Don’t be convinced or talked out of getting a lawyer by law enforcement.”  

Fairlie notes that even the law enforcement officers he has represented over the years “always contact me before they speak with law enforcement.” 

Plea Negotiations: What Happens Before Trial 

Before your case goes to trial, you and your attorney might engage in plea negotiations with the prosecution.  

During these negotiations, you and your attorney will seek an agreement where you will plead guilty or no contest to some charges in exchange for a concession from the prosecution. Usually, these concessions lead to dismissed charges, reduced charges, or specific sentencing recommendations. 

If you hire or are appointed an attorney, they will be required to inform you of every plea offer extended by the prosecution. Your lawyer can help you determine whether the plea offer is a good one and how strong your chances are at trial. But, ultimately, the choice about whether you will accept the offer of a plea agreement is yours. 

Make Sure You Have Legal Counsel in the Plea Bargaining Process 

Plea bargains are another critical moment where you need legal advice—both before and during the plea bargain negotiation. “One of the issues we see repeatedly is that defendants are contacted by law enforcement before they have a lawyer. And then they may make what seems like a harmless statement that comes back to haunt them at the time of trial or plea bargaining,” says Fairlie. 

He adds that when defendants seek legal help only after agreeing to a resolution, “they might suffer a driver’s license suspension, or no longer be permitted to possess a firearm, or not realize that they’re going to be deported by virtue of the resolution of the criminal case they agreed to.”  

In short: do not agree to anything without knowing the legal consequences. And the only way to fully appreciate the legal consequences is to have an experienced criminal defense attorney at your side. 

The Trial: What Happens When Your Criminal Case Is Adjudicated 

If you choose to reject all plea agreements, you will proceed to the criminal trial.  

The prosecution will be responsible for proving beyond a reasonable doubt that a crime was committed and that you committed the crime. This is the highest burden of proof in the legal system. You have the right to have your attorney cross-examine the prosecution’s witnesses, and you can also call your own witnesses and testify in your defense. But you cannot be compelled to testify. 

Throughout the trial, the judge will decide what evidence will and will not be seen by the jury. And when both sides have finished presenting their witnesses and arguments, the jury will make the final determination in the case. 

Know and Defend Your Legal Rights 

State laws determine criminal procedures, and these vary from state to state. Courts sometimes look to past case law to see how the rules were applied to the charged crime— this is referred to as common law. Common law is created through past criminal cases tried in state courts as well as federal courts, up to and including the Supreme Court. Courts can also look to criminal statutes enacted by state and federal legislatures to determine if a citizen has violated the law. 

Some states follow a general legal criminal standard, the model penal code. Other state governments have drafted their own criminal statutes that vary from the model penal law. Certain crimes can only reach a conviction if the prosecution can prove the offender had the requisite mental state of mind and intent to commit the criminal act (mens rea). Other crimes require no such criminal intent or mental state of mind—these are referred to as strict liability crimes. 

Underlying all criminal law in the United States is the Constitution, which provides a basic set of rights: 

• The Fourth Amendment protects you against unreasonable searches and seizures. This means that the police must get a search warrant from a judge based on probable cause. If evidence was seized in violation of your rights, a lawyer can help you file and argue a motion to suppress the evidence. If successful, a motion to suppress prevents improperly seized evidence from being used in the prosecution’s case against you. 
• The Fifth Amendment protects you during police questioning at an arrest. You may know of these rights as Miranda rights, which include the right to remain silent and the right to an attorney during police questioning.  
• The Sixth Amendment also gives you the right to an attorney. However, it does not apply until after you have been formally charged. Before formal charges are filed, you will have a right to a lawyer under the Fifth Amendment. 
• The Eighth Amendment provides the “right against cruel and unusual punishment.” Additionally, if judges grant bail, the Eighth Amendment requires that the amount not be unreasonable. 

States can offer greater protections than the Constitution, but they cannot offer fewer protections.  

Should I Talk to a Criminal Defense Lawyer? 

“There’s probably nothing more serious in the average person’s life than being charged with a criminal offense,” says Fairlie. “So, I generally recommend that people get the best criminal defense lawyer they can reasonably afford.” 

But you might be wondering: What if I don’t actually need a lawyer? If I can get the same outcome without a lawyer, doesn’t it make sense to do it alone and save money?

That’s a fair question. However, it can only be answered confidently by having an initial consultation with an expert. As Fairlie explains, “Initial consultations are helpful in determining how much risk the client is shouldering if they choose to go without a lawyer. And there are cases where we let people know, ‘Hey, you very well may get the same result without a lawyer that you would get with a lawyer.’ But it seems that in nearly every case, the client can seriously fumble the ball. So, we fully inform them of the risk. We let them know that a lawyer is there to help them avoid a criminal conviction resulting in jail time or other serious repercussions and to safeguard their liberty.”  

The good thing about initial consultations is that many are free. You can get insight on whether you need legal representation without upfront costs. To find the right attorney for your needs, visit the Super Lawyers directory and search for a criminal defense attorney in your area.

Criminal Defense Attorney FAQs

Below are some common questions you might want to consider when meeting with an attorney for the first time: 

When do the police have to read me my rights? 

Police must always inform people of their Miranda rights, including the right to remain silent and the right to an attorney, before questioning them. 

Do I have to accept a plea deal? 

You do not have to accept any plea deal. If you choose not to accept, your case will proceed to trial. It makes sense to accept a plea agreement, and other times it isn’t the right decision. Whether or not it’s the right decision for your case depends on many factors, and you should always condult with an attorney before making a decision. 

What criminal punishment awaits if I am found guilty? 

Penalties depend on several factors, including the nature of the crime, whether it’s a first or subsequent offense, and mandatory sentencing requirements. Generally, punishments range from fines to time in prison, along with consequences that may result from having a criminal record (for example, obstacles to employment or the ability to vote or possess a firearm). 

How long do criminal cases take? 

This depends on various factors. Many cases settle before reaching trial and may only last a couple of months. More complex cases that go to trial can take several months or longer in some cases. States may set timelines from the time of arrest to when a case must be brought to trial. It’s best to speak with a lawyer about your particular case to get a more accurate estimate.