Common questions about criminal law

What happens in the first days after an arrest?

A defendant is typically brought before a magistrate judge for an initial hearing either the same day or the day after arrest, where the person learns more about the charges and rights, arrangements are made for an attorney, and the judge decides on release or detention.^[1]The defendant is also asked to enter a plea of guilty or not guilty at this stage.^[1] Full entry: Charged with a crime? Start here.

Should I talk to the police?

Before any custodial interrogation, police must inform a detainee of the right to remain silent, the right to have an attorney present during questioning, and the right to an appointed attorney if indigent.^[2]These rights come from the Fifth Amendment protection against self-incrimination and the Sixth Amendment right to counsel.^[2]A person can waive these rights, but any waiver must be made voluntarily, knowingly, and intelligently.^[2] Full entry: Charged with a crime? Start here.

How do I get a lawyer if I can't afford one?

The Sixth Amendment guarantees the right to counsel in federal prosecutions, and the Supreme Court extended that guarantee to state felony prosecutions in 1963.^[3]A public defender is a lawyer appointed by the court, paid by the county, state, or federal government, to represent people who cannot afford to hire their own attorney.^[4]Arrangements for a defendant to have an attorney are typically made at the initial hearing after arrest.^[1] Full entry: Charged with a crime? Start here.

What deadlines matter early in a case?

The initial hearing generally occurs the same day or the day after arrest, and the arraignment is the formal step where the defendant hears the charges and enters a plea.^[1][5]After arraignment, a federal case can move through discovery, plea bargaining, pre-trial motions, and trial.^[6]Because state systems set their own rules and titles for these stages, specific timing can vary by jurisdiction.^[6] Full entry: Charged with a crime? Start here.

What are the building blocks every crime shares?

Most crimes require proof of an act or omission (actus reus), a mental state (mens rea), and causation connecting the act to a prohibited result.^[7]The actus reus must generally be a voluntary act, or an omission where the person had a legal duty to act.^[8]The mens rea requirement means the defendant must have acted with a culpable state of mind, usually categorized as purposeful, knowing, reckless, or negligent conduct.^[9] Full entry: Criminal law basics.

How are crimes classified?

Crimes are generally divided into felonies, misdemeanors, inchoate offenses, and strict liability offenses.^[7]Felonies are the more serious category, with classes ranging up to life imprisonment or death, while misdemeanors are typically punishable by less than twelve months in jail.^[10][11]Not every state uses letter-graded classes; some grade sentencing crime-by-crime instead.^[10][11] Full entry: Criminal law basics.

Where does criminal law come from?

Each state writes its own criminal code, and the federal government has codified its own crimes mainly in Title 18 of the U.S. Code.^[7]Many states have reformed their codes based on the Model Penal Code, a model statute drafted by the American Law Institute.^[12]Because the power to criminalize conduct is largely reserved to the states, state codes are typically far more extensive than federal law.^[7] Full entry: Criminal law basics.

Can someone be punished just for their status rather than an act?

No; the Supreme Court has held that criminalizing a person's status, rather than their conduct, inflicts cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.^[7]For example, a state cannot punish someone simply for being homeless, though it can punish conduct like trespassing or loitering.^[7] Full entry: Criminal law basics.

Does a defendant need to know their conduct is illegal to be guilty?

No; the mens rea requirement means a defendant must be aware of the facts that make the conduct fit the definition of the offense, but the defendant need not know that the conduct is illegal.^[9]Some offenses, called strict liability crimes, do not require any guilty mental state at all, such as certain possession offenses.^[9] Full entry: Criminal law basics.

What does criminal law cover?

Criminal law covers crimes and the punishment of individuals who commit them, as distinguished from civil law, which concerns disputes between private parties over their own rights.^[7]A crime is defined as any act or omission that violates a law prohibiting it, and the government, rather than a private party, decides whether to prosecute and punish the conduct.^[7] Full entry: What is criminal law?.

What are the main purposes of punishment?

Criminal prosecutions exist so that the government can decide whether to punish an individual for an act or omission, rather than leaving the matter to private parties as in a civil dispute.^[7]To carry this out, federal and state governments use sentencing guidelines, and offenses are classified by seriousness, which affects the available punishment, such as the felony and misdemeanor classifications tied to maximum authorized prison terms.^[7][13] Full entry: What is criminal law?.

What are the two main branches of criminal law?

Criminal law involves substantive rules, which define the elements of an offense such as the act, the required mental state, and causation, and procedural rules, which govern how a case proceeds, including rules codified in the Federal Rules of Criminal Procedure.^[7]Civil law, which governs private disputes over contracts, torts, property, and similar matters, is a separate system from criminal law.^[14] Full entry: What is criminal law?.

What is the Model Penal Code?

The Model Penal Code, or MPC, is a model code assembled by the American Law Institute and first promulgated in 1962.^[12]Following its release, many states significantly reformed their criminal codes, and many state codes are still based on the MPC today, which standardized mens rea terms and used an elements analysis to define liability.^[12] Full entry: What is criminal law?.

How does a felony differ from a misdemeanor?

A felony and a misdemeanor are both types of offenses punishable under criminal law, but they are distinguished chiefly by the length of the maximum authorized term of imprisonment.^[10][11]Under federal law, a felony generally involves a maximum sentence of more than one year, while a misdemeanor involves a maximum sentence of one year or less, down to an infraction if five days or less, or no imprisonment is authorized.^[13] Full entry: What is criminal law?.

What is the difference between criminal and civil cases?

A criminal case involves the government deciding whether to punish an individual for an act or omission that violates a criminal law, while a civil case involves two private parties disputing their rights, such as under a contract or tort claim.^[7][14]Civil law covers areas such as contracts, torts, family law, property, and trusts, and is distinct from criminal law, which involves offenses against the state.^[14] Full entry: Criminal law vs civil law.

Can the same act lead to both a criminal case and a lawsuit?

Yes. A crime is any act or omission in violation of a law prohibiting that conduct, and the government separately decides whether to prosecute it, while civil law regulates non-criminal legal relationships between individuals and can address the same underlying conduct through a private lawsuit.^[7][14]Because the two systems serve different purposes and are brought by different parties, a single act can be the basis for both types of proceedings.^[7] Full entry: Criminal law vs civil law.

How do the burdens of proof differ?

In a criminal case, the government must prove every element of the offense beyond a reasonable doubt, a standard requiring more certainty than any other burden of proof in law.^[15][7]In a civil case, the burden is preponderance of the evidence, meaning the party with the burden must show there is a greater than 50% chance the claim is true, which is a much lower standard.^[16] Full entry: Criminal law vs civil law.

Who decides whether to bring a criminal case?

The government decides whether to punish an individual for an act or omission through a criminal prosecution, rather than a private victim initiating the case.^[7]Each state has its own criminal code, and federal criminal law is codified largely in Title 18 of the U.S. Code.^[7] Full entry: Criminal law vs civil law.

What kinds of disputes does civil law cover?

Civil law, as a branch of law, regulates non-criminal legal relationships between individuals, including both natural and legal persons, and encompasses areas such as contracts, torts, family law, property, and trusts.^[14]It is distinct from criminal law, which involves offenses against the state.^[14] Full entry: Criminal law vs civil law.

What must the prosecution prove for any crime?

The prosecution generally must prove the actus reus, or physical act or omission required by the statute, along with the mens rea, or required mental state, and must do so beyond a reasonable doubt.^[8][17]Where a statute does not specify a mental state, courts will usually still require proof of a guilty state of mind.^[9] Full entry: Elements of a crime.

Can a failure to act be a crime?

Yes, an omission can satisfy the actus reus requirement, but only when the individual had a legal duty to act and failed to do so.^[8]Such duties can arise from a statute, a contract, a special relationship, a voluntary assumption of care, or from having created the risk.^[8] Full entry: Elements of a crime.

What happens if one element is missing?

Mens rea and actus reus are both usually necessary to prove guilt in a criminal trial, so the prosecution must establish each required element.^[9]If proof fails to meet the beyond a reasonable doubt standard for every element, a conviction cannot stand consistent with due process.^[17] Full entry: Elements of a crime.

Do all crimes require intent?

No, strict liability offenses do not require a guilty state of mind; it is enough for the prosecution to show the defendant committed the wrongful act.^[18]Strict liability is treated as the least blameworthy of the possible mental states and is mostly limited to minor offenses, though statutory rape and possession crimes are notable examples.^[9][18] Full entry: Elements of a crime.

How do mental states differ in seriousness?

The Model Penal Code organizes mental states hierarchically as acting purposely, knowingly, recklessly, or negligently, with higher blameworthiness generally corresponding to more severe liability and harsher sentencing.^[9]A minority of states instead use a malice distinction between express and implied malice.^[9] Full entry: Elements of a crime.

What does mens rea mean?

Mens rea is Latin for "guilty mind" and refers to the criminal intent or state of mind that a statute requires to convict a defendant of a particular crime.^[9]Proving mens rea, along with the actus reus or physical act, is usually necessary to establish guilt at trial.^[9] Full entry: Mens rea (the guilty mind).

What are the four Model Penal Code mental states?

The MPC's four mental states, in order of blameworthiness, are acting purposely, knowingly, recklessly, and negligently.^[9]Most states use this classification, which was developed as part of the Model Penal Code first promulgated in 1962.^[12] Full entry: Mens rea (the guilty mind).

What is the difference between recklessness and negligence?

Acting recklessly means the defendant consciously disregarded a substantial and unjustified risk, while acting negligently means the defendant was not aware of the risk but should have been.^[9]Recklessness therefore involves conscious awareness of a risk, while negligence involves a failure to perceive a risk that a reasonable person would have recognized.^[9] Full entry: Mens rea (the guilty mind).

What crimes don't need mens rea?

Strict liability crimes do not require a guilty state of mind; the fact that the defendant committed the act is enough.^[9]Examples include possession offenses and statutory rape, where a defendant can be liable even without knowledge of possession or a sincere belief about a minor's age.^[18] Full entry: Mens rea (the guilty mind).

Does a defendant need to know their conduct is illegal?

No; the mens rea requirement does not require that a defendant know their conduct is illegal, only that the defendant be conscious of the facts that make the conduct fit the definition of the offense.^[9] Full entry: Mens rea (the guilty mind).

What is the difference between a felony, a misdemeanor and an infraction?

A felony is punishable under criminal law and generally carries the most serious consequences, while a misdemeanor is typically punishable by less than 12 months in jail, and an infraction is a minor offense usually punished only with a fine.^[10][11][19]Federal law formalizes this hierarchy by classifying offenses into letter grades based directly on the maximum term of imprisonment authorized.^[13] Full entry: Felony vs misdemeanor vs infraction.

What is the least serious kind of offense?

An infraction is considered among the most minor offenses in the criminal justice system, far less serious than a misdemeanor, with examples including parking overtime and speeding.^[19]In California, the maximum punishment for an infraction is a fine of up to $250, and incarceration is not available as a penalty.^[19] Full entry: Felony vs misdemeanor vs infraction.

Can a misdemeanor become a felony?

Some offenses, known as wobblers, can be charged or sentenced as either a felony or a misdemeanor, with the choice generally left to a trial court's discretion.^[20]For example, petty theft is usually a misdemeanor but can become a wobbler if the defendant previously served a prison term for certain theft-related crimes, showing how prior history or the severity of conduct can push an offense toward felony treatment.^[20] Full entry: Felony vs misdemeanor vs infraction.

Is a speeding ticket a crime?

Speeding is given as an example of an infraction, which is technically considered an offense in the criminal justice system even though the penalty is very minor.^[19]In some states, including California, certain speeding-related conduct can even be charged as a 'wobbler infraction,' which sits between an infraction and a misdemeanor.^[19] Full entry: Felony vs misdemeanor vs infraction.

How long does the government have to file charges?

For most non-capital federal offenses, the government must find an indictment or institute an information within five years after the offense was committed.^[21]Limitation periods for state offenses vary by jurisdiction and by the type of offense charged, since statutes of limitations are not uniform across legal systems.^[22] Full entry: Criminal statute of limitations.

What federal crimes have no statute of limitations?

Federal offenses punishable by death may be indicted at any time, without any limitation period.^[23]This is an exception to the general five-year period that otherwise applies to non-capital federal offenses.^[21] Full entry: Criminal statute of limitations.

What pauses the clock?

Federal law notes that the limitations period does not extend to protect a person who is fleeing from justice, a rule tied to the general federal limitations provision.^[21]Federal law also carves out a special rule for certain indictments involving an unknown accused identified by a DNA profile, which are excepted from the ordinary limitations period until the person is arrested or served with a summons.^[21] Full entry: Criminal statute of limitations.

Does the start date always match the date of the crime?

Not necessarily; a limitation period may begin to run from the date of the injury, the date it was discovered, or the date it would have been discovered with reasonable effort.^[22]Which approach applies depends on the jurisdiction and type of claim.^[22] Full entry: Criminal statute of limitations.

Are statutes of limitations the same for civil and criminal cases?

No single rule covers both; statutes of limitations exist for both civil and criminal causes of action, but the periods vary depending on the jurisdiction and the type of claim.^[22] Full entry: Criminal statute of limitations.

What are the main categories of crime?

Crimes are generally separated into four categories: felonies, misdemeanors, inchoate offenses, and strict liability offenses.^[7]Felonies are the more serious offenses and misdemeanors the less serious ones, each with their own classification systems based on potential prison or jail time.^[10][11] Full entry: Crimes and offenses.

How do penalties vary between states and the federal system?

Each state has its own criminal code and decides what conduct to criminalize, so penalties for similar conduct can differ significantly between states and from federal law, which is codified mainly in Title 18 of the U.S. Code.^[7]Federal courts use the Federal Sentencing Guidelines while state courts use their own state-specific guidelines, and even felony or misdemeanor letter-grade classifications are not used uniformly in every state.^[7][10][11] Full entry: Crimes and offenses.

How is crime measured in the US?

Crime is measured in more than one way. Police-reported data is compiled through resources like the FBI's Crime Data Explorer, while the Bureau of Justice Statistics' National Crime Victimization Survey asks a representative sample of people about crimes they personally experienced, including crimes never reported to police.^[24][25] Full entry: Crimes and offenses.

What is the difference between a felony and a misdemeanor?

A felony is generally punishable by longer prison terms, with top classes carrying life imprisonment or death, while a misdemeanor is typically punishable by less than 12 months in jail along with penalties such as fines or probation.^[10][11] Full entry: Crimes and offenses.

Can someone be punished just for their status rather than an act?

No; the Supreme Court has held that a law criminalizing a person's status alone can amount to cruel and unusual punishment, though the same person can still be punished for related conduct such as trespassing or loitering.^[7] Full entry: Crimes and offenses.

Can an accomplice be convicted even if the main perpetrator is not?

In some jurisdictions, yes; accomplices can be prosecuted independently of the principal, meaning an accomplice could be convicted even of a more serious offense while the alleged perpetrator is acquitted.^[7] Full entry: Crimes and offenses.

What counts as a violent crime?

Violent crimes generally include offenses that involve force or the threat of force against another person, such as homicide, assault, battery, and robbery.^[26][27][28]Homicide covers any death caused by one person's action or inaction, while assault and battery involve intentional harmful or offensive contact or the threat of it.^[26][29]Robbery is distinguished from other theft offenses because it requires violent force or the threat of force.^[28] Full entry: Violent crimes.

Which violent crimes carry the heaviest penalties?

Penalties generally depend on the degree or classification of the offense, and the exact rules vary by jurisdiction.^[30]First-degree murder, which typically covers willful, deliberate, and premeditated killings or particularly heinous killings, has historically carried the harshest penalties, including the death penalty under some schemes.^[30]Aggravated forms of other violent offenses, such as aggravated battery or armed robbery, also carry harsher penalties than their basic counterparts because they involve factors like a deadly weapon or serious bodily harm.^[29][28] Full entry: Violent crimes.

What is the difference between murder and manslaughter?

Murder generally involves an intentional killing, historically defined as killing with malice aforethought, while manslaughter involves killing without malice and less culpability.^[30][31]Manslaughter can be voluntary, an intentional killing in the heat of passion after adequate provocation, or involuntary, a negligent killing.^[31] Full entry: Violent crimes.

Is assault the same as battery?

No. Assault refers to an act that causes a person to reasonably apprehend imminent harmful or offensive contact, while battery refers to the actual harmful or offensive contact itself.^[27][29]Some jurisdictions merge the two into a single offense, while others keep them as separate crimes.^[29] Full entry: Violent crimes.

What makes a theft crime a robbery instead of larceny?

Robbery requires that property be taken from a person or their presence by violent force or the threat of force, which is what distinguishes it from larceny, a theft offense that does not require force.^[28]The exact elements of robbery can vary slightly between states.^[28] Full entry: Violent crimes.

What is the difference between first- and second-degree murder?

First-degree murder typically requires a willful, deliberate, and premeditated killing, or a killing committed during certain serious felonies, while second-degree murder covers killings with malice but without premeditation.^[30]Federal law follows the same basic split, defining specific premeditated or felony-related killings as first-degree murder and treating any other murder as second-degree.^[32] Full entry: Murder.

Can you be convicted of murder if you didn't kill anyone?

Yes, under the felony murder rule, a person can be charged with murder if a death occurs during the commission of a violent felony, even if that person did not cause the death and had no intent to kill.^[33]For example, if two people attempt a robbery and one accidentally kills an employee, both participants may be charged with murder under the rule.^[33] Full entry: Murder.

What is the difference between murder and manslaughter?

Murder requires malice aforethought, while manslaughter is an unlawful killing committed without malice and generally involves less culpability.^[31]Manslaughter is divided into voluntary manslaughter, an intentional killing in the heat of passion after adequate provocation, and involuntary manslaughter, a negligent killing, and sentences for manslaughter are usually less severe than for murder.^[31][26] Full entry: Murder.

Is homicide the same thing as murder?

No, homicide is a broader category referring to any death caused by another person, whether through action or inaction, and includes lawful killings such as those justified by self-defense.^[26]Murder is only the subset of homicide that is unlawful and committed with the required intent or malice.^[30] Full entry: Murder.

Does every state define murder the same way?

No, the precise legal definition of murder and its degrees varies by jurisdiction, and while most states use a degree system similar to the Pennsylvania Method, some rely instead on the Model Penal Code.^[30]Only a few states, such as Florida, Pennsylvania, and Minnesota, recognize third-degree murder as a separate category.^[30] Full entry: Murder.

What is the difference between assault and battery?

Assault refers to the act that causes a victim to reasonably apprehend imminent harmful or offensive contact, while battery refers to the actual harmful or offensive contact itself.^[27]Many jurisdictions merge the two into a single offense, often called assault, though some states keep battery as a separate crime.^[29] Full entry: Assault and battery.

What makes an assault aggravated?

Assault committed under aggravating circumstances, such as use of a deadly weapon or causing serious bodily harm, may be classified as aggravated assault or aggravated battery, which carries harsher penalties than simple assault.^[27][29]Under federal law, for example, assault with a dangerous weapon and assault resulting in serious bodily injury each carry higher maximum sentences than simple assault.^[34] Full entry: Assault and battery.

Can words alone be an assault?

Assault requires an act that causes the victim to reasonably apprehend imminent harmful or offensive contact, and the threatened contact must be certain or likely to occur very soon.^[27]Courts have found that a threat combined with surrounding acts and circumstances can reasonably put someone in apprehension of imminent bodily harm, as in the Kansas case of Vetter v. Morgan.^[27] Full entry: Assault and battery.

Does the victim have to be physically injured for there to be an assault?

No physical injury is required for assault; the actor must have intended to cause a harmful or offensive contact and the victim must have been put in immediate apprehension of such contact.^[27]For civil battery, however, actual contact must occur, though the victim does not need to prove actual damages because the harmful or offensive contact itself is treated as an injury.^[29] Full entry: Assault and battery.

Is consent a defense to assault or battery?

Consent, whether express or implied, is a recognized defense to battery, such as consent implied by participating in a sport.^[29]There is some disagreement among jurisdictions about the role of consent in assault cases.^[27] Full entry: Assault and battery.

What counts as a property crime?

Property crimes generally involve the unlawful taking, entry, or misappropriation of another person's property, including theft, larceny, burglary, robbery, and embezzlement.^{[35][36][28][37]}Robbery is unusual in this category because it also requires force or the threat of force against a person, making it both a property crime and a crime against the person.^[28] Full entry: Property crimes.

How do dollar amounts affect theft charges?

Many states divide theft into grand theft and petty theft based on the value of the property taken, with grand theft covering amounts above a threshold set by state statute.^[35]For example, California law sets the grand theft threshold at stolen goods worth more than $950, or certain items like a vehicle or firearm regardless of value.^[35]Larceny similarly often requires proof that stolen property exceeded a set value for a felony charge, such as the $400 threshold described in a North Carolina case, with lower values charged as misdemeanors.^[38] Full entry: Property crimes.

What is the difference between theft and robbery?

Theft, also called larceny, is the taking of property with intent to deprive the owner of it, without necessarily involving force.^[35][38]Robbery requires that the taking occur through violent force or the threat of such force, which is why it is treated as a more serious offense than larceny.^[28] Full entry: Property crimes.

What makes burglary different from theft?

Burglary focuses on the unlawful entry into a building or structure with intent to commit a crime inside, rather than on the taking of property itself.^[36]A person can be charged with burglary even if no theft ultimately occurs, as long as unlawful entry with criminal intent is shown.^[36] Full entry: Property crimes.

How is embezzlement different from theft?

Embezzlement involves property that was lawfully entrusted to the defendant, such as funds an employee had authority to control, which the defendant then misappropriates.^[37]This differs from larceny, which requires a trespassory taking of property the defendant did not already lawfully possess.^[37] Full entry: Property crimes.

What is the difference between petty theft and grand theft?

The difference generally turns on the value of the property stolen, with amounts above a state's statutory threshold charged as grand theft and lower amounts charged as petty theft.^[35]The type of property can also matter; some states treat theft of certain items, such as automobiles or firearms, as grand theft regardless of value.^[35]Grand theft may be a felony or misdemeanor depending on severity and jurisdiction, while petty theft is generally a misdemeanor.^[35] Full entry: Theft and larceny.

How is embezzlement different from theft?

Embezzlement involves the fraudulent taking of property that was entrusted to the defendant, such as by an employer, whereas larceny requires a trespassory taking of property the defendant had no right to possess.^[37]Because the embezzler often already had lawful possession of the funds or goods, prosecutors cannot prove the trespassory taking that larceny requires, so embezzlement developed as a separate offense.^[37]Embezzlement can be proven by showing the defendant had possession through their job position or had substantial control over the property.^[37] Full entry: Theft and larceny.

What is the difference between robbery, burglary and theft?

Theft or larceny is simply the taking of another's property with intent to deprive the owner of it, without any requirement of force.^[35][38]Robbery is a more serious offense because it involves taking property from a person or their presence using violent force or the threat of force.^[28]Burglary is different still, criminalizing the act of illegally entering a building with the intent to commit a crime inside, regardless of whether anything is ultimately taken.^[36] Full entry: Theft and larceny.

Does intent to permanently deprive the owner always matter?

Under common-law robbery definitions, the intent generally must be to deprive the owner of property permanently.^[28]Some states depart from this; for example, Florida law treats the offense as robbery even if the intent was only to deprive the owner of the property temporarily.^[28] Full entry: Theft and larceny.

Can someone be charged with attempted embezzlement?

Yes, the government can charge individuals with attempted embezzlement in addition to completed embezzlement.^[37] Full entry: Theft and larceny.

How are drug crimes graded?

Grading generally depends on the type of conduct, such as simple possession versus distribution or manufacturing, and on the quantity and type of controlled substance involved.^[39]Federal law sets specific weight thresholds for substances like heroin, cocaine, methamphetamine, and marijuana that trigger mandatory minimum prison terms, with higher quantities leading to harsher mandatory sentences.^[39]Simple possession carries separate, generally lower, penalties under federal law, though repeat offenses increase the mandatory minimum and maximum terms.^[40] Full entry: Drug crimes.

How do federal and state drug laws interact?

Federal law and state law both criminalize drug offenses, and conduct can potentially violate both systems at once, since states may independently criminalize trafficking and possession.^[41]For example, federal law under 21 U.S.C. § 841 addresses manufacturing and distribution nationally, while California's Health and Safety Code separately punishes transporting or selling controlled substances within the state.^[41]Because each schedule and penalty structure is set independently, rules vary by state.^[42] Full entry: Drug crimes.

What is the difference between actual and constructive possession?

Actual possession means a person has immediate physical contact with an item, such as having it in hand or on their person.^[43]Constructive possession exists when a person has knowledge of an item and the ability to control it even without physical contact, and this concept is often used in criminal cases involving drugs.^[43] Full entry: Drug crimes.

Is marijuana legal under federal law?

No, marijuana is listed as a Schedule I controlled substance under the federal Controlled Substances Act, meaning federal law treats it as having no currently accepted medical use and a high potential for abuse.^[44]Many states, however, have legalized marijuana or allow its use in specific circumstances, creating a gap between federal and state treatment.^[42] Full entry: Drug crimes.

What counts as a controlled substance analogue?

A controlled substance analogue is a substance whose chemical structure is substantially similar to that of a controlled substance.^[42]Under criminal law, an analogue is treated the same as the controlled substance it resembles.^[42] Full entry: Drug crimes.

What is a drug possession crime?

A drug possession crime generally involves knowingly or intentionally possessing a controlled substance without lawful authorization, such as a valid prescription.^[40]Controlled substances are those defined and scheduled under controlled substances laws, and it is generally unlawful to possess them except as the law expressly allows.^[42] Full entry: Drug possession.

What is constructive possession?

Constructive possession, also called possession in law, exists when a person has knowledge of an object and the ability to control it, even though the person has no physical contact with it.^[43]This concept is often used in criminal cases, including drug possession cases, because a substance may be found in a location the person has access to and control over without being directly on their person.^[43] Full entry: Drug possession.

How is simple possession different from possession with intent to distribute?

Simple possession makes it unlawful to knowingly or intentionally possess a controlled substance without authorization.^[40]Possession with intent to distribute is a separate offense that covers possessing a controlled substance with intent to manufacture, distribute, or dispense it, and carries penalties that depend on the quantity and type of substance involved.^[39] Full entry: Drug possession.

Does marijuana possession carry the same risk everywhere?

No. Marijuana remains a Schedule I controlled substance under federal law, but many states have legalized it or allow its use in specific circumstances.^[42]This means the legal consequences of possessing marijuana can differ depending on whether state or federal law applies. Full entry: Drug possession.

What are the stages of a criminal case?

In the federal system, the recognized stages are investigation, charging, an initial hearing or arraignment, discovery, plea bargaining, preliminary hearing, pretrial motions, trial, post-trial motions, sentencing, and appeal.^[6]Not every case includes every step, and some cases involve more complexity than others.^[6] Full entry: The criminal process step by step.

How long does a criminal case take?

The sources describe sentencing as occurring a few months after a guilty verdict, and note that trial preparation itself can take many weeks or months.^[45][46]Beyond these general points, overall timing depends heavily on the facts of the case and is not addressed in detail here. Full entry: The criminal process step by step.

How do state and federal processes differ?

State cases are brought by prosecutors or district attorneys, while federal cases are brought by United States Attorneys, and federal judges are called district court judges while state judges use a range of titles.^[6]Grand jury indictment is a requirement in federal felony cases unless waived, but not all states require grand juries.^[6]Both state and federal governments can make the same act illegal, and a person can potentially be charged and convicted under both systems, with each jurisdiction setting its own punishments.^[6] Full entry: The criminal process step by step.

Can someone be charged under both state and federal law for the same conduct?

Yes; states and the federal government each have their own criminal laws and penalties, and a defendant can be charged and convicted under both systems for the same conduct.^[6] Full entry: The criminal process step by step.

What happens if a grand jury does not indict?

If a grand jury decides that the evidence does not support charges, no indictment comes from that grand jury.^[47] Full entry: The criminal process step by step.

What makes an arrest lawful?

An arrest must generally be supported by probable cause, whether or not it is made pursuant to a warrant.^[48]Probable cause exists when the facts and circumstances known to the officer would lead a reasonable person to believe that a crime has been committed.^[48]The Fourth Amendment requires that warrants be supported by probable cause and particularly describe the place to be searched and the persons or things to be seized.^[49] Full entry: Arrest.

Do police need a warrant to arrest someone?

An arrest is generally made with an arrest warrant, but a warrantless arrest may be lawful if probable cause and exigent circumstances exist at the time of the arrest.^[50]For example, a warrantless arrest may be valid if the officer reasonably believes the suspect has committed or is about to commit a crime, or if arrest is needed to prevent escape or preserve evidence.^[50]A warrantless arrest can be invalidated if the officer fails to show both probable cause and exigent circumstances.^[50] Full entry: Arrest.

How soon must an arrested person see a judge?

A suspect arrested without a warrant is generally entitled to a prompt judicial determination of probable cause, typically within 48 hours.^[50]Under federal procedure, a person making an arrest must take the defendant before a magistrate judge or other judicial officer without unnecessary delay.^[51] Full entry: Arrest.

What happens at the initial appearance after an arrest?

At the initial appearance, a judge informs the defendant of the complaint against them, the right to retain or be appointed counsel, the circumstances for possible pretrial release, any right to a preliminary hearing, and the right not to make a statement.^[51]The judge also allows the defendant a reasonable opportunity to consult with counsel and decides on detention or release as provided by statute or the rules.^[51] Full entry: Arrest.

Must police read Miranda warnings at the moment of arrest?

Miranda warnings are required before custodial interrogation, not simply at the moment of arrest, and describe the right to remain silent, the right to an attorney, and the right to appointed counsel if indigent.^[2]Without a valid warning or waiver, statements obtained during questioning may be inadmissible at trial under the exclusionary rule.^[2] Full entry: Arrest.

How does bail work?

Bail is money a defendant pays as a guarantee that they will appear in court at a later date, and failing to return triggers the bond obligation, allowing the court to keep the security.^[52]A judge or magistrate decides the amount by weighing factors such as flight risk, the type of crime alleged, dangerousness, and community safety, and may also attach conditions such as no contact with an alleged victim.^[52] Full entry: Bail and pretrial release.

Do you get bail money back?

The source material describes that a failure to return to court triggers the bond obligation and allows the court to keep any money given as security, implying that money is at risk of forfeiture if the defendant does not appear.^[52]Beyond this, procedures for returning bail funds can vary and are not detailed in the sources here. Full entry: Bail and pretrial release.

What happens if I can't afford bail?

Federal law directs that a judicial officer may not impose a financial condition that results in the pretrial detention of the person, and instead may order release on personal recognizance, an unsecured appearance bond, or non-financial conditions if release on recognizance alone will not reasonably assure appearance or safety.^[53]State practices on affordability and bail vary and are not detailed in these sources. Full entry: Bail and pretrial release.

Can a judge deny bail?

Yes; federal law allows a judicial officer to order detention rather than release under 18 U.S.C. § 3142.^[53]The Supreme Court upheld pretrial detention under the Bail Reform Act where the government shows by clear and convincing evidence, after an adversary hearing, that no release conditions will reasonably assure the safety of others or the community, and held that the Excessive Bail Clause does not require release on bail in such circumstances.^[54] Full entry: Bail and pretrial release.

What happens at an arraignment?

An arraignment is the first step in a criminal proceeding where the defendant is brought before the court to hear the charges and enter a plea.^[5]Under the Federal Rules of Criminal Procedure, this involves ensuring the defendant has a copy of the indictment or information, reading or stating the substance of the charge, and asking the defendant to plead, all in open court.^[55] Full entry: Arraignment.

What pleas can a defendant enter?

A defendant is generally asked to plead guilty or not guilty.^[1]In some cases a defendant may enter a plea of nolo contendere, or "no contest," accepting the penalty without admitting or denying guilt^[56], or in some jurisdictions an Alford plea, which is a formal guilty plea made while maintaining innocence.^[57] Full entry: Arraignment.

Is an arraignment the same as a first appearance?

The terms overlap in federal practice: a defendant is brought before a magistrate judge for an initial hearing shortly after arrest, where rights and charges are explained, counsel is arranged, bail is addressed, and the defendant is asked to plead guilty or not guilty.^[1]The Federal Rules separately define arraignment as the open-court proceeding where the charging document is provided, read or summarized, and a plea is taken.^[55] Full entry: Arraignment.

Can a defendant skip an arraignment?

Under the Federal Rules of Criminal Procedure, a defendant need not be present for arraignment if charged by indictment or misdemeanor information and if the defendant and defense counsel sign a written waiver affirming receipt of the charging document and that the plea is not guilty, subject to the court's acceptance.^[55]Video teleconferencing may also be used for the arraignment if the defendant consents.^[55] Full entry: Arraignment.

What is the difference between a no-contest plea and an Alford plea?

A nolo contendere, or no-contest, plea means the defendant does not accept or deny responsibility but agrees to accept the penalty, and it cannot be used against the defendant in another case.^[56]An Alford plea is different because it is a formal admission of guilt made while the defendant simultaneously asserts innocence, and because it is a guilty plea, it can be used against the defendant in future suits.^[57] Full entry: Arraignment.

What is a plea bargain in simple terms?

A plea bargain is an agreement in which a defendant agrees to plead guilty to some or all charges in exchange for concessions from the prosecutor, such as reduced charges or a recommended sentence.^[58]A defendant may only plead guilty if they actually committed the crime and admit this in open court.^[59] Full entry: Plea bargaining.

Who benefits from plea bargaining?

Prosecutors benefit because plea bargains let them focus resources on other cases and reduce the number of trials courts must oversee.^[58]Defendants may benefit through reduced charges or a recommended lighter sentence, though the Government typically offers such deals when it has a strong case and the defendant hopes to reduce exposure to a lengthier sentence.^[59][58] Full entry: Plea bargaining.

Can a prosecutor break a plea deal?

Courts treat plea bargains as contracts, and if a prosecutor reneges on one, the defendant may seek relief from the judge, who may allow withdrawal of the guilty plea, order the prosecutor to follow the agreement, or apply another remedy.^[58]In Santobello v. New York, the Supreme Court held that when a prosecutor's promise is broken, the case must be reconsidered for an appropriate remedy.^[60] Full entry: Plea bargaining.

Is it legal for a prosecutor to threaten harsher charges during negotiations?

Yes, in Bordenkircher v. Hayes the Supreme Court held that due process is not violated when a prosecutor carries out a threat made during plea negotiations to bring more serious charges if the defendant does not plead guilty, as long as the defendant remains free to accept or reject the offer.^[61] Full entry: Plea bargaining.

Does a judge have to accept a plea agreement?

Not always. Under the federal rules, a judge may accept, reject, or defer a decision on certain types of plea agreements, and if the agreement only involves a sentencing recommendation, the judge must advise the defendant that there is no right to withdraw the plea if the recommendation is not followed.^[62] Full entry: Plea bargaining.

What are the stages of a criminal trial?

A federal criminal trial generally proceeds through jury selection, opening statements, presentation of evidence through witness examination, closing, and a decision on guilt or innocence by the jury or judge.^[46]The prosecutor goes first because the government bears the burden of proving the charge, and the defense may, but is not required to, present its own witnesses and evidence.^[46] Full entry: The criminal trial.

Must jury verdicts be unanimous?

In federal court, a jury verdict generally must be unanimous.^[63]The Supreme Court in Ramos v. Louisiana held that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a serious offense, and that this requirement applies to state courts as well.^[64] Full entry: The criminal trial.

What is a bench trial?

A bench trial is a trial in which the judge, rather than a jury, decides both the facts and the law.^[63]Under the Federal Rules of Criminal Procedure, a defendant entitled to a jury trial can have a bench trial instead if the defendant waives the jury right in writing, the government consents, and the court approves.^[65] Full entry: The criminal trial.

How is a jury chosen?

Jurors are selected from a pool, such as the venire compiled from voter registration records in federal court, and the judge and the parties question prospective jurors to identify bias.^[46]Each side may use a limited number of peremptory challenges to excuse jurors without giving a reason, but jurors cannot be excluded based on race, sex, or ethnicity.^[63] Full entry: The criminal trial.

Does the right to a jury trial apply to every criminal case?

No; the Supreme Court has generally limited the Sixth Amendment jury-trial right to crimes carrying a penalty of more than six months' imprisonment.^[63]In Duncan v. Louisiana, the Court held that this right to a jury for serious offenses applies in state prosecutions as well as federal ones.^[66] Full entry: The criminal trial.

Which constitutional rights protect people accused of crimes?

The Fourth Amendment protects against unreasonable searches and seizures and requires warrants based on probable cause.^[49]The Fifth Amendment guarantees a grand jury in certain cases, forbids double jeopardy, protects against self-incrimination, and requires due process of law.^[67]The Sixth Amendment guarantees a speedy public trial, an impartial jury, notice of charges, confrontation of witnesses, and the assistance of counsel^[68], while the Eighth Amendment bars excessive bail, excessive fines, and cruel and unusual punishment.^[69] Full entry: Constitutional rights of the accused.

How do these rights apply to the states?

The Bill of Rights originally applied only against the federal government.^[70]Through a series of twentieth-century Supreme Court decisions, the Fourteenth Amendment's Due Process Clause has incorporated most Bill of Rights protections, making them binding on state governments in the same way they bind the federal government.^[70] Full entry: Constitutional rights of the accused.

What does the Fourth Amendment protect against?

The Fourth Amendment protects the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and requires warrants supported by probable cause.^[49]It underlies rules on search warrants, stop-and-frisk, and surveillance.^[49] Full entry: Constitutional rights of the accused.

What is the privilege against self-incrimination?

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.^[67]This protection is part of what the Fifth Amendment guarantees alongside the right to a grand jury, protection against double jeopardy, and due process of law.^[67] Full entry: Constitutional rights of the accused.

What does the right to counsel under the Sixth Amendment cover?

The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the assistance of counsel for a defense, along with a speedy and public trial by an impartial jury and the right to confront witnesses.^[68] Full entry: Constitutional rights of the accused.

Does the Eighth Amendment only apply to the death penalty?

No. While the Eighth Amendment is most often discussed in connection with the death penalty, it also prohibits excessive bail and excessive fines, including in cases of civil and criminal forfeiture, such as property seized during a drug raid.^[69] Full entry: Constitutional rights of the accused.

What does the Fourth Amendment protect?

The Fourth Amendment protects the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures by the government.^[49]As the Supreme Court explained in Katz v. United States, the Amendment protects people, not places, so what a person seeks to keep private may be protected even in a location accessible to the public.^[71] Full entry: Fourth Amendment: searches and seizures.

When can police search without a warrant?

Police may search without a warrant under several recognized exceptions, including when evidence is in plain view, when exigent circumstances exist, during hot pursuit of a felony suspect, when searching an automobile with probable cause to believe it contains evidence or contraband, and when a person with authority has voluntarily consented to the search.^[72]Probable cause can also justify a warrantless search or seizure when exigent circumstances are present.^[48] Full entry: Fourth Amendment: searches and seizures.

What happens to illegally obtained evidence?

Under the exclusionary rule, evidence gathered in violation of the Fourth Amendment is generally barred from use by the government, a rule established for Fourth Amendment violations in Mapp v. Ohio.^[73]Evidence derived from the initially tainted evidence may also be excluded as "fruit of the poisonous tree," though exceptions such as the good-faith exception, independent source doctrine, inevitable discovery doctrine, and attenuation doctrine can allow some evidence to be admitted despite an underlying violation.^[73] Full entry: Fourth Amendment: searches and seizures.

What is the difference between probable cause and reasonable suspicion?

Probable cause requires a fair probability, based on facts and circumstances known to an officer, that a crime has been committed or that evidence of a crime is present in a specific location, and it is generally required for an arrest, a search, or a warrant.^[48]Reasonable suspicion is a lower standard that permits only brief, limited investigative stops and pat-downs when an officer can point to specific, articulable facts suggesting criminal activity.^[48] Full entry: Fourth Amendment: searches and seizures.

Does the Fourth Amendment apply to searches of cell phones and digital records?

Courts have extended Fourth Amendment probable cause requirements to digital evidence; in Riley v. California, the Supreme Court held that police generally may not search digital information on a cell phone seized during an arrest without a warrant.^[48]In Carpenter v. United States, the Court held that accessing historical cell-site location information is a search requiring a warrant supported by probable cause, extending Fourth Amendment protection to digital records held by third parties.^[48] Full entry: Fourth Amendment: searches and seizures.

What does pleading the Fifth mean?

Pleading the Fifth refers to invoking the Fifth Amendment privilege against self-incrimination, which allows a person to refuse to answer questions, refuse to make incriminating statements, or refuse to testify in a criminal case.^[74]A defendant invokes this privilege by declining to take the stand, and the court cannot compel testimony, while a witness may only invoke it in response to a specific question that could be incriminating.^[74] Full entry: Fifth Amendment rights.

Can you be tried twice for the same crime?

The Double Jeopardy Clause of the Fifth Amendment protects against being prosecuted twice for the same crime, and this protection applies to both federal and state governments through incorporation.^[75]The protection generally covers criminal punishment, though some civil penalties can qualify if they are punitive rather than remedial, while others, such as civil asset forfeiture, have been held not to count as punishment.^[75] Full entry: Fifth Amendment rights.

Does every state need a grand jury?

Each state statute determines its own indictment proceeding, and a prosecutor can bring formal charges either through a grand jury indictment or by filing a criminal complaint directly with the court without grand jury involvement.^[76]Because states set their own procedures, requirements vary, so rules on grand juries differ from one state to another.^[76] Full entry: Fifth Amendment rights.

What is the difference between an indictment and a criminal complaint?

An indictment is issued by a grand jury after it determines there is an adequate basis for criminal charges, while a criminal complaint is filed directly with the court by a prosecutor without grand jury review.^[76]Either method formally charges a person with a crime and gives notice of the alleged offense before a criminal trial can proceed.^[76] Full entry: Fifth Amendment rights.

Does the privilege against self-incrimination cover physical evidence like blood tests?

No. The privilege only protects testimonial evidence such as statements admitting guilt, while non-testimonial physical evidence like blood tests, handwriting samples, or fingerprints is not protected.^[74]The Supreme Court applied this narrow interpretation in a case involving a blood-alcohol test, holding that the test result was neither testimony nor evidence relating to a communicative act.^[74] Full entry: Fifth Amendment rights.

When do I have a right to a court-appointed lawyer?

In federal prosecutions, the Sixth Amendment itself guarantees the right to counsel, and this right was extended to state felony prosecutions by Gideon v. Wainwright.^[3][77]The right attaches once judicial proceedings have begun, such as by formal charge, indictment, or arraignment.^[3]For certain misdemeanors, there is not always a guaranteed right to appointed counsel, and rules can vary.^[3] Full entry: Sixth Amendment rights.

What counts as a speedy trial?

There is no single fixed rule; courts weigh the length of the delay, the reason for it, whether the defendant asserted the right, and any prejudice caused, under the test from Barker v. Wingo.^[78]In federal court, Congress has also set specific statutory deadlines, generally requiring charges within thirty days of arrest and trial within seventy days of charges being filed, subject to excluded periods of delay.^[79] Full entry: Sixth Amendment rights.

What is ineffective assistance of counsel?

Ineffective assistance is a Sixth Amendment claim evaluated under the two-part Strickland test: the defendant must show counsel's performance was deficient under prevailing professional norms, and that this deficiency prejudiced the defense with a reasonable probability that the outcome would otherwise have been different.^[80][3]If both parts are met, the usual remedy is a new trial.^[3] Full entry: Sixth Amendment rights.

Does the right to a jury trial apply in state courts?

Yes. The Supreme Court has held that the right to trial by jury is fundamental to the American scheme of justice and applies to the states through the Fourteenth Amendment in cases that would qualify for a jury trial in federal court.^[66] Full entry: Sixth Amendment rights.

Can an attorney help a client lie on the stand?

No. The Supreme Court has found that an attorney has a duty not to allow a client to present perjured testimony, and this ethical duty supersedes the duty of zealous advocacy without violating the client's Sixth Amendment rights.^[3] Full entry: Sixth Amendment rights.

What does cruel and unusual punishment mean?

It generally refers to an excessive penalty that is disproportionate to the crime committed, punishment inflicted as deliberate retribution, or conditions that violate basic human rights standards.^[81]Because the Constitution does not spell out a precise test, courts have developed standards over time covering proportionality of sentences, age of the offender, treatment of incarcerated people, and conditions of confinement.^[81] Full entry: Eighth Amendment: bail, fines and punishment.

What is excessive bail?

Bail is the money a defendant pays as a guarantee that they will return to court, and it becomes forfeited if they fail to appear.^[52]The Supreme Court has said bail set higher than an amount reasonably calculated to assure a defendant's presence at trial is excessive under the Eighth Amendment, and that bail amounts must be based on standards relevant to that purpose for each defendant.^[82] Full entry: Eighth Amendment: bail, fines and punishment.

How has the Eighth Amendment limited the death penalty?

In Furman v. Georgia, the Supreme Court held that the death penalty as imposed in the cases before it violated the Eighth and Fourteenth Amendments' ban on cruel and unusual punishment.^[83]In Roper v. Simmons, the Court held that the Eighth and Fourteenth Amendments forbid executing offenders who were under 18 when they committed their crimes, applying an "evolving standards of decency" analysis.^[84] Full entry: Eighth Amendment: bail, fines and punishment.

Can a life sentence without parole violate the Eighth Amendment for a juvenile?

Yes, in some circumstances. The Supreme Court held in Graham v. Florida that life without parole is unconstitutional for juvenile non-homicide offenders, and extended that reasoning in Miller v. Alabama to juvenile homicide offenders as well.^[81] Full entry: Eighth Amendment: bail, fines and punishment.

Does the Eighth Amendment apply to prison conditions?

Yes. Courts have found Eighth Amendment violations where officers show deliberate indifference to a serious illness or injury, as in Estelle v. Gamble, and where overcrowding causes health and medical care violations, as the Court found regarding California prisons in Brown v. Plata.^[81] Full entry: Eighth Amendment: bail, fines and punishment.

What does it mean to Mirandize someone?

To Mirandize someone means that police give the person the Miranda warning before custodial interrogation, describing the constitutional rights that apply.^[2]This includes informing the person of the right to remain silent, that statements can be used as evidence, and the right to an attorney, retained or appointed.^[85] Full entry: Miranda rights.

When are Miranda warnings not required?

Miranda warnings apply specifically to custodial interrogation, so they are tied to a person being in custody and being questioned by police.^[2]The sources summarized here focus on that custodial-interrogation requirement; rules on specific situations vary and are not detailed in these sources. Full entry: Miranda rights.

What happens if police don't read Miranda rights?

If police fail to give the warnings or do not obtain a valid waiver, statements made during custodial interrogation may be inadmissible at trial under the exclusionary rule.^[2]The Supreme Court has confirmed that this is a constitutional requirement that Congress cannot override by statute.^[86] Full entry: Miranda rights.

How do you invoke the right to remain silent?

The Supreme Court has held that the right to remain silent must be invoked unambiguously; silence alone during an interrogation does not invoke it.^[87]If a suspect does not clearly state that he wants to remain silent or does not want to talk with police, officers are not required to end the questioning.^[87] Full entry: Miranda rights.

Can Miranda rights be waived?

Yes. The Supreme Court held that a defendant may waive the Miranda rights, provided the waiver is made voluntarily, knowingly and intelligently.^[85]A waiver can be implied from conduct, such as giving an answer to police after understanding the warnings, even without an express statement giving up the rights.^[87] Full entry: Miranda rights.

What are the main types of criminal defenses?

Defenses generally fall into those that dispute the prosecution's proof of the elements of the offense and affirmative defenses, which introduce new evidence that can defeat liability even if the acts are proven.^[88]Affirmative defenses are often grouped into justification defenses, such as self-defense and necessity, and excuse defenses, such as insanity and duress.^{[89][90][91][92]} Full entry: Criminal defenses.

What is an affirmative defense?

An affirmative defense is a defense in which the defendant introduces evidence that, if found credible, will negate criminal liability even if the prosecution proves the defendant committed the alleged acts.^[88]The party raising the defense bears the burden of proving it, and examples include self-defense, entrapment, insanity, and necessity.^[88] Full entry: Criminal defenses.

What is the difference between justification and excuse?

A justification defense, like necessity, argues that the conduct was the lesser of two evils and the right choice under the circumstances.^[90]An excuse defense, like duress, instead argues the defendant should not be held responsible because their free will was overcome by a threat, even though the conduct itself was not justified.^[92] Full entry: Criminal defenses.

What is self-defense?

Self-defense is the use of force to protect oneself from an attempted injury by another, and it requires that the danger be imminent, the response proportionate, and that the person defending themselves was not the initial aggressor.^[89] Full entry: Criminal defenses.

What is the insanity defense?

The insanity defense allows a defendant to admit the act but argue they lacked culpability because of mental illness, often analyzed under the M'Naghten rule, which asks whether the defendant knew the nature of the act or that it was wrong.^[91]It is classified as an affirmative defense rather than a partial defense.^[91] Full entry: Criminal defenses.

How do judges decide sentences?

Judges weigh statutory factors such as the nature of the offense and the defendant's history and characteristics, the need for the sentence to reflect the seriousness of the offense, provide just punishment, deter crime, and protect the public, alongside any applicable guideline range and the need to avoid unwarranted disparities.^[93]In the federal system, judges also rely on a presentence report, guidance from the Sentencing Commission's guidelines, and statements from victims and the defendant.^[45][94] Full entry: Criminal sentencing.

Are the federal guidelines mandatory?

No. Although the Guidelines were originally meant to be followed, the Supreme Court held in United States v. Booker that mandatory application of the Guidelines violated the Sixth Amendment, so they are now advisory.^[95][96]Courts may sentence outside the guideline range if they explain adequate justification, and the resulting sentence is reviewed on appeal for reasonableness.^[95] Full entry: Criminal sentencing.

What is a mandatory minimum?

A mandatory minimum is a punishment set by statute that a judge cannot go below once it applies, unlike sentencing guidelines, which are only recommended.^[97]Mandatory minimums expanded significantly in the 1980s during the war on drugs, including minimums tied to specific drug quantities, and they do not let judges consider mitigating circumstances.^[97] Full entry: Criminal sentencing.

Who decides the death penalty?

Unlike most other sentences, a jury, not a judge alone, must decide whether to impose the death penalty, and it is limited to capital offenses such as murder, treason, genocide, or the killing or kidnapping of certain federal officials.^[45]Many states no longer use the death penalty, though the federal government may still do so.^[45] Full entry: Criminal sentencing.

What is a presentence report?

A presentence report is generally prepared by a probation officer before federal sentencing and calculates the offense level and criminal history category, states the sentencing range, and describes the defendant's history, financial condition, and any factors relevant to the sentence.^[94]It must usually be given to the defendant, defense counsel, and the government at least 35 days before sentencing, giving the parties a chance to object.^[94] Full entry: Criminal sentencing.

What does expunged mean?

To expunge a record means to destroy, obliterate, or strike out information about an arrest or conviction held in court files, computers, and other depositories.^[98]Depending on the state, this can mean the arrest record is removed from all databases so the person can deny it happened, or it can mean a public record still exists even after expungement.^[98] Full entry: Expungement and record sealing.

What crimes cannot be expunged?

Most states restrict which crimes can be expunged, and the most common exclusions are murder, rape, terrorism, capital offenses, and assault with a deadly weapon that caused serious injury.^[98]Records more likely to be expunged instead include juvenile charges, charges that were dropped or dismissed, and low-level misdemeanors.^[98] Full entry: Expungement and record sealing.

How do I get something off my record?

The process usually begins with filing a petition in the court that handled the original case and paying a filing fee.^[98]Because the available relief and eligibility rules differ by jurisdiction, and federal expungement authority has historically been very narrow, what is possible depends heavily on the specific state or federal law involved.^[98][99] Full entry: Expungement and record sealing.

Can a federal conviction be expunged?

Until recently, federal law offered no general expungement authority for federal convictions, with the only exception being a narrow provision for first-time misdemeanor drug possession offenders under 18 U.S.C. § 3607.^[99][100]The Trafficking Survivors Relief Act, 18 U.S.C. § 3771A, later authorized courts to grant expungement and vacatur to trafficking survivors convicted of nonviolent federal crimes committed as a direct result of their trafficking.^[100] Full entry: Expungement and record sealing.

Is sealing the same as expungement?

The terms are related but not identical in effect: some states completely remove an arrest record from all databases after expungement, while other states keep a public record of the arrest even after it has been expunged.^[98]Because of this variation, the practical result of having a record expunged or sealed depends on the specific state law involved.^[98] Full entry: Expungement and record sealing.

Is a public defender an actual lawyer?

Yes. A public defender is a lawyer who represents indigent criminal defendants and is a staff attorney of a legislatively created public defender service, appointed by the court and paid by government.^[4] Full entry: Public defenders.

How do I qualify for a public defender?

In federal court, a judge or magistrate judge must find, after appropriate inquiry, that a person is financially unable to obtain counsel before appointing one, and representation is provided for people charged with a felony or Class A misdemeanor, among other listed categories.^[101]State eligibility procedures vary by state and are not detailed in the sources here, but the underlying constitutional right applies to any prosecution that carries a possible sentence of imprisonment.^[102] Full entry: Public defenders.

What's the difference between a public defender and a private lawyer?

A public defender is paid by the county, state, or federal government and is appointed by the court, while a privately retained lawyer is hired and paid directly by the client.^[4]In the federal system, appointed representation can also come from private 'panel attorneys' who accept court appointments at set hourly rates rather than their usual private rates.^[103] Full entry: Public defenders.

Does the right to a public defender apply to misdemeanors, or only felonies?

The Supreme Court held in Argersinger v. Hamlin that the right to appointed counsel for an indigent defendant does not depend on whether the charge is a felony or misdemeanor, and that no accused may be deprived of liberty as a result of any prosecution in which he was denied counsel.^[104]More broadly, the right to counsel extends to any prosecution, state or federal, felony or misdemeanor, that carries a sentence of imprisonment.^[102] Full entry: Public defenders.

Who decides whether I get a federal defender or a private panel attorney?

In districts served by a federal defender organization, panel attorneys are typically assigned between 30 and 40 percent of CJA cases, generally where a conflict of interest or other factor precludes representation by the federal defender office.^[103]In the four federal districts without a defender organization, panel attorneys accept appointments in all CJA cases.^[103] Full entry: Public defenders.

Which Supreme Court cases shaped criminal law?

Miranda v. Arizona addressed the admissibility of statements from custodial interrogation and the Fifth Amendment privilege against self-incrimination.^[85]Gideon v. Wainwright held that indigent defendants charged with a felony must be provided counsel under the Sixth Amendment.^[77]Mapp v. Ohio concerned whether evidence obtained through an unlawful search could be used at trial.^[105] Full entry: Landmark Supreme Court criminal cases.

How do I read a case citation?

A citation such as 384 U.S. 436 means the opinion is found in volume 384 of the United States Reports, beginning at page 436.^[85]The citation may also include the year the case was decided, such as 1966 for Miranda, 1963 for Gideon, or 1961 for Mapp.^{[85][77][105]} Full entry: Landmark Supreme Court criminal cases.

What did Miranda v. Arizona decide?

The Court considered the admissibility of statements obtained from a person subjected to custodial police interrogation and the procedures needed to protect the Fifth Amendment privilege against self-incrimination.^[85]The opinion was delivered by Chief Justice Warren.^[85] Full entry: Landmark Supreme Court criminal cases.

What did Gideon v. Wainwright decide?

The Court held that the Sixth Amendment's guarantee of the assistance of counsel applies to indigent defendants in state felony prosecutions, overruling its earlier decision in Betts v. Brady.^[77]The petitioner in that case had been denied appointed counsel at his trial.^[77] Full entry: Landmark Supreme Court criminal cases.

What did Mapp v. Ohio decide?

The Court reviewed a conviction resting on evidence seized during a search of the defendant's home where no valid search warrant was produced at trial.^[105]The decision revisited earlier precedent on whether such evidence could be used against a defendant in state court.^[105] Full entry: Landmark Supreme Court criminal cases.

What happened in Miranda v. Arizona?

The case combined four separate instances in which police took a defendant into custody and questioned him at a station house to obtain a confession, without effectively advising some defendants of their right to remain silent or to consult an attorney.^[85]The Supreme Court used these cases to decide what the Constitution requires before statements from a custodial interrogation can be used against a defendant.^[85] Full entry: Miranda v. Arizona (1966).

What did the Supreme Court decide?

The Court held that police must tell a suspect, before any custodial questioning, that the suspect has the right to remain silent, that anything said can be used as evidence, and that the suspect has a right to an attorney, retained or appointed.^[2]A defendant may waive these rights, but only if the waiver is voluntary, knowing, and intelligent, and without a valid warning or waiver, statements obtained may be inadmissible at trial.^[2] Full entry: Miranda v. Arizona (1966).

Has Miranda been overruled?

No. In Dickerson v. United States, the Supreme Court held that Miranda is a constitutional decision that Congress could not override by statute, and the Court declined to overrule Miranda itself, citing the fact that the warnings had become embedded in routine police practice.^[86] Full entry: Miranda v. Arizona (1966).

Does staying silent automatically protect a suspect's rights?

Not necessarily. In Berghuis v. Thompkins, the Court held that a suspect's silence during interrogation does not by itself invoke the right to remain silent, and that the right to remain silent or the right to counsel generally must be invoked unambiguously.^[87]An uncoerced statement made after the suspect understood the warnings can be treated as an implied waiver of the right to remain silent.^[87] Full entry: Miranda v. Arizona (1966).

Do the exact words of a Miranda warning matter?

The Supreme Court specified the substance that must be conveyed before custodial questioning, but the precise wording used by officers differs from one jurisdiction to another.^[2]General discussion of how these warnings apply appears on the page about Miranda rights, though rules and practices can vary by state. Full entry: Miranda v. Arizona (1966).

What happened in Gideon v. Wainwright?

Clarence Earl Gideon was charged with a felony in Florida, asked the trial court to appoint him a lawyer because he could not afford one, and was refused because Florida law at the time only allowed appointed counsel in capital cases.^[77]He represented himself at trial, was convicted, and was sentenced to five years in prison, after which he filed a habeas corpus petition arguing that the denial of counsel violated his constitutional rights.^[77] Full entry: Gideon v. Wainwright (1963).

What did the Court decide?

The Supreme Court held that the Sixth Amendment right to counsel is fundamental and applies to the states through the Fourteenth Amendment, overruling its earlier decision in Betts v. Brady.^[77]This meant that indigent defendants charged with felonies in state court must be provided with a lawyer.^[3] Full entry: Gideon v. Wainwright (1963).

Does Gideon apply to misdemeanors?

The Supreme Court later extended the right to counsel to misdemeanor cases in Argersinger v. Hamlin, holding that no accused may be deprived of liberty in any criminal prosecution, felony or misdemeanor, without having been afforded the assistance of counsel.^[104]However, the Wex overview notes that for certain misdemeanors there is not a guaranteed right to counsel, reflecting ongoing variation in how this principle is applied.^[3] Full entry: Gideon v. Wainwright (1963).

Did any earlier case influence Gideon?

Yes, in Powell v. Alabama the Supreme Court had already addressed the denial of effective counsel to young, indigent defendants facing a capital charge, finding that the circumstances of that case denied them a fair trial.^[106]That earlier reasoning about the importance of counsel fed into the Court's broader conclusion in Gideon that the right to counsel is fundamental.^[77] Full entry: Gideon v. Wainwright (1963).

When does the right to counsel begin?

According to later Supreme Court decisions, a defendant gains the right to counsel at or after the time judicial proceedings have been initiated, whether by formal charge, preliminary hearing, indictment, information, or arraignment.^[3]The right also requires that appointed counsel be effective, not merely present, under a test the Court later developed for evaluating attorney performance.^[3] Full entry: Gideon v. Wainwright (1963).

What happened in Mapp v. Ohio?

Cleveland police searched Dollree Mapp's home without producing a valid search warrant and found obscene materials, which were used to convict her under Ohio law.^[105]The Supreme Court held that this evidence should have been excluded because it was obtained through an unreasonable search, and it ruled that the exclusionary rule applies to the states.^[73] Full entry: Mapp v. Ohio (1961).

What is the exclusionary rule?

The exclusionary rule prevents the government from using most evidence gathered in violation of the Constitution.^[73]Mapp v. Ohio established that this rule applies to evidence obtained from an unreasonable search or seizure in violation of the Fourth Amendment, including in state prosecutions.^[73] Full entry: Mapp v. Ohio (1961).

What is the good-faith exception?

Under the good-faith exception, evidence is not excluded if officers obtained it while reasonably relying on a search warrant that later turns out to be invalid.^[73]The Supreme Court recognized this exception because excluding such evidence would not actually deter police officers from violating the law in the future, since the officers were acting in good faith on a magistrate's determination.^[107] Full entry: Mapp v. Ohio (1961).

Did Mapp v. Ohio apply only to federal cases?

No. Before Mapp, the exclusionary rule applied only to federal prosecutions, and the Supreme Court had previously held that the Fourteenth Amendment did not forbid state courts from admitting illegally obtained evidence.^[105]Mapp changed this by extending the exclusionary rule to state criminal trials as well.^[73] Full entry: Mapp v. Ohio (1961).

What happens to evidence found because of an earlier illegal search?

Evidence that law enforcement discovers only because of an earlier unconstitutional search or seizure can also be excluded, under a concept known as "fruit of the poisonous tree," subject to certain exceptions.^[73] Full entry: Mapp v. Ohio (1961).