What is criminal law?

Why the government, not the victim, brings the case

A crime is treated as a wrong against society as a whole, so the case is titled “The People,” “The State” or “The United States” against the defendant. The victim is a witness, not a party. That has practical consequences: a victim cannot “drop the charges” — only the prosecutor can decide to dismiss — and a victim who wants compensation for pain and suffering usually needs a separate civil lawsuit, although the criminal court can order restitution for direct financial losses.

How offenses are graded

• Infractions — minor violations such as most traffic tickets: usually fines only, no jail and often no right to appointed counsel.
• Misdemeanors — punishable by up to a year in county jail in most states: petty theft, simple assault, a first DUI in many states.
• Felonies — punishable by more than a year, served in state or federal prison, with lasting consequences for firearms rights, professional licenses, housing, voting in some states and immigration status.

Many offenses are “wobblers” that can be charged either way, and prosecutors have wide discretion in choosing the charge — one of the main reasons early legal advice matters.

What the prosecution has to prove

Almost every offense has two parts: the prohibited act (actus reus) and the required mental state (mens rea) — purposely, knowingly, recklessly or negligently. The difference between murder and manslaughter, or between theft and an honest mistake about whose property something was, often lies entirely in the mental state. Strict-liability offenses, such as many traffic and regulatory violations and statutory rape in most states, are the exception and require no particular mental state.

Defenses

Some defenses deny an element: the defendant was somewhere else, did not intend the act, or was misidentified. Others admit the act but justify or excuse it: self-defense, necessity, duress, insanity, entrapment. Still others attack the process — evidence obtained through an illegal search, a confession taken without Miranda warnings, or a charge filed after the statute of limitations. A motion to suppress key evidence can end a case without any trial at all.

The stages of a case

Arrest or citation, charging by the prosecutor or a grand jury, arraignment and plea, bail, discovery, pretrial motions, plea negotiation, trial, sentencing and appeal. The overwhelming majority of US cases — well over 90 percent — end in a plea rather than a trial, often to a reduced charge. A plea is a conviction, so its long-term consequences deserve as much attention as the immediate sentence.

Rights that operate throughout

The right to remain silent, to counsel (appointed if you cannot afford one when jail is possible), to confront witnesses, to a speedy and public trial, to a jury for serious offenses, and protection against unreasonable searches and double jeopardy. Silence is not evidence of guilt, and asking for a lawyer is not an admission. Both are constitutional rights, and invoking them clearly — “I am going to remain silent, and I want a lawyer” — is the standard advice of every defense attorney.

Sentencing

Judges usually choose within a range set by statute, and many states and the federal system use sentencing guidelines that weigh the offense and the defendant's record. Alternatives to jail include probation, fines, community service, treatment programs and diversion, which can lead to dismissal of the charge after the defendant completes conditions. Prior convictions push sentences up sharply, and some offenses carry mandatory minimums.

Federal or state

Most prosecutions are state cases. Federal jurisdiction arises when the offense crosses state lines, targets federal interests, involves federal programs or occurs on federal land. Federal sentencing follows its own guidelines and has no parole, so time served is much closer to the sentence imposed.

Consequences beyond the sentence

A conviction can affect jobs, professional licenses, student aid, housing applications, custody and, for non-citizens, immigration status. Many states now allow expungement or sealing of some records after a waiting period. Anyone charged with a crime should speak to a criminal defense lawyer or public defender before talking to police or accepting any plea offer.