What is Criminal Law?

How a criminal charge makes its way through the courts

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on January 30, 2023

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If you have been arrested, you might be wondering what happens next. Most people know about arrest and trial, but a lot happens in between in this lengthy process. And though you’ve probably seen the criminal justice system on TV, or listened to a true crime podcast or two, exposure to the system through pop culture won’t necessarily help you understand everything that goes on in a criminal law proceeding.

Criminal law can be complicated, as there are state crimes and federal crimes, and the two systems don’t always work the same way. The following is designed to help you understand the basics of how a criminal charge makes its way through the courts so that you feel comfortable speaking to a lawyer if you decide to hire one.

Criminal Law – What You Need to Know

  • “Substantive criminal law” is the general term for the state and federal laws that make certain conduct illegal – it is meant to deter criminal offenses.
  • Each state has its own criminal code that defines what conduct constitutes a crime and how the judicial system will punish that conduct.
  • Illegal conduct can be charged as a felony, misdemeanor, or infraction – a felony charge results from serious misconduct and receives the most severe sentence.
  • Each state determines the level at which illegal conduct will be charged. So, for example, a felony in New York might be a misdemeanor in Missouri.

The Charge – What Happens When You’re Arrested

When law enforcement arrests someone, they will write a report. Law enforcement then submits that information 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 felony charges for a crime such as first-degree murder or embezzlement, they will use one of two processes, depending on your jurisdiction and prosecutor preference.

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.

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.

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.

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 Your Rights

State government laws determine criminal procedure. These can 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. These courts can also look to criminal statutes written by state and federal legislators to determine if a citizen has violated the law.

Some states follow a general legal criminal standard, the model penal code. Others have drafted their own criminal statutes that vary from the model penal code. 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. Other crimes require no such criminal intent or mental state of mind – these are referred to as strict liability crimes.

The Constitution, of course, provides a basic set of rights. The federal government mandates that all state laws and procedures be constitutional. States can offer greater protections than the Constitution, but they cannot offer fewer protections. Here are some protections the Constitution provides.

The Fourth Amendment

The Fourth Amendment protects you against unreasonable searches and seizures. This means that the police are required to get a search warrant from a judge based on probable cause. The warrant requirement is subject to some exceptions that can depend on the facts of your situation. If you believe 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 and Sixth Amendments

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 Fifth Amendment also protects you during trial by preventing the prosecutor from calling you as a witness at your trial.

Like the Fifth Amendment, 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

You might recognize the Eighth Amendment as the “right against cruel and unusual punishment.” But the amendment also protects you if you have been charged with a crime. Judges are not required to grant bail, but if they do, the Eighth Amendment requires that the amount not be unreasonable.

Should I Talk to a Lawyer?

Absolutely. An experienced criminal defense lawyer can evaluate the strengths and weaknesses of your case and help you make informed decisions about plea agreements and whether you would like to testify at trial. They will have robust knowledge of the model penal code and state and federal penal law.

Your lawyer might also have a rapport with prosecutors, which can be beneficial during plea negotiations or sentencing. A skillful defense attorney will further have experience with how the process works, so there will be someone there to explain every step of the process to you.

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

  • What will happen if I am charged with criminal offenses?
  • Have I been charged with felonies or misdemeanors?
  • When do the police have to read me my rights?
  • Do I have to accept a plea deal?
  • What criminal punishment awaits if I am found guilty?
  • Do my actions constitute self-defense?

Finding the right attorney for your needs is crucial. It would be best if you approached attorneys with experience in this area so you can hire someone who can guide you through the entire case.

To help you get started, you may want to consider looking for a criminal defense attorney through a service like Super Lawyers. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location.

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