Criminal Law FAQs

The police must read the Miranda warnings before they interrogate someone who is in custody. Being in custody means that a reasonable person would conclude that they were not free to leave. Statements that are volunteered by someone in custody, without an interrogation, can be used against them even if the police did not provide Miranda warnings. An interrogation can consist of not only direct questioning but also actions by the police that are likely to elicit an incriminating response by the suspect.

No, the police do not need to use certain words when they are reading the Miranda warnings. They simply need to convey the essence of the Miranda rights.

You might have been under arrest, even if the police did not read your rights. They only need to read the rights to a suspect whom they will be interrogating while they are in custody. In other words, they can handcuff a suspect and book them at the police station without reading the Miranda warnings.

The police can give Miranda warnings midway through an interrogation, but statements provided prior to the warnings likely will not be admissible against the defendant. Sometimes a defendant will confess before they receive the warnings and then confess again after they receive the warnings, feeling that it would be pointless to recant the confession. However, the second confession also may be inadmissible in some cases if the police benefited from the suspect’s confusion to get the second confession.

Sometimes a statement that was obtained in violation of the Miranda rights will lead law enforcement to discover tangible evidence against the defendant. The rule is that this evidence can be admitted in most cases, despite the Miranda violation. If the police went beyond violating the Miranda rules and coerced the suspect into making a confession, the evidence probably will not be admitted.

Search and seizure rules apply whenever law enforcement conducts a search that invades a citizen’s legitimate expectation of privacy. The expectation of privacy must be objectively reasonable under the circumstances.

A search warrant is a document signed by a judge that allows the police to conduct a search in a certain place for certain items. The police will need to establish probable cause based on their observations or information from a reliable informant. If the police conduct a search without a warrant, it is presumed to be unreasonable unless the police can show that an exception to the requirement justified the search. The search generally cannot extend beyond the scope of the warrant, in terms of either the locations searched or the items for which the police are searching.

No, there are several exceptions that allow the police to conduct a search without a warrant. These may include valid consent by an occupant of the property, evidence that is in plain view, an emergency that requires prompt action, or searches incident to an arrest.

An occupant of an apartment can give valid consent to a search of any areas over which they have control. If roommates are living together, either roommate likely can give consent to a search of their own areas and the shared areas of the apartment. But they cannot give consent to a search of areas that are controlled only by another roommate. If multiple roommates are present when the police ask for consent, a refusal by any roommate probably will prevent the search entirely. A landlord generally cannot give consent to a search of a leased apartment that is validly occupied by a tenant. If an emergency arises, the police have a right to enter, and the landlord can assist them.

The police can search a car that has been towed and impounded, regardless of whether the car was illegally parked or stolen. They may be able to search closed containers inside the car. The police do not have a right to impound a car for the purpose of conducting a search, and they must follow appropriate procedures during the search.

The exclusionary rule provides that evidence obtained through a constitutional violation cannot be used against a defendant. A related doctrine, known as the fruit of the poisonous tree, requires evidence obtained from unconstitutionally obtained evidence to be excluded as well in many cases. However, a judge will not exclude this evidence on their own. A defendant must bring a motion to suppress.

A motion to suppress involves the defendant asking the judge to exclude certain evidence from being considered at trial. It is a pre-trial motion, and sometimes a successful motion to suppress will avoid a trial altogether because the prosecution may not be able to prove its case without the evidence.

Yes, the police generally can scan or swipe a credit card without violating the Fourth Amendment. Courts have found that this does not involve an invasion of a citizen’s privacy, since there is no reasonable expectation of privacy in a credit card. This is because consumers disclose the information on the cards to vendors. However, law enforcement can swipe a card only if they possess the card legally. They cannot take the card without any justification and swipe it.

A police officer sometimes will issue a citation rather than making a formal arrest. This can mitigate overcrowding in jails, although it may pose a danger to the community by allowing a suspect to remain at large. If you have received a citation instead of being arrested, you do not have an arrest record and do not need to disclose the citation in response to a question about your arrest record. However, by signing the citation, you agree to appear in court as specified in the citation. You may be subject to arrest if you fail to appear.

The probable cause standard does not require proof beyond a reasonable doubt. It is more than a reasonable suspicion, but it is often considered to be less than the preponderance of the evidence standard in civil court. The preponderance of the evidence standard means that a fact is more likely than not to be true. Thus, probable cause is not as “probable” as it sounds.

Usually, an officer cannot make an arrest for a misdemeanor unless the crime occurred in their presence. This may extend beyond their physical presence to the use of scientific instruments and reasonable inferences. An officer also can rely on the observations of other officers or admissions by a suspect. When a misdemeanor did not occur in the presence of the officer, they still can pursue an arrest warrant by submitting an affidavit to a judge. The affidavit will need to establish probable cause.

A bench warrant is a specific type of warrant that a judge issues when a defendant fails to show up in court when required or otherwise violates the rules of court. It can function as an arrest warrant does, since the police can use a bench warrant to seize the defendant and bring them back to court. However, a judge starts the process of issuing a bench warrant, rather than a police officer.

A bail hearing allows a defendant in state court to ask the judge for a lower amount of bail, or for release on their own recognizance without paying any bail. The prosecution also may ask the judge to increase the amount of bail, or argue that bail should not be reduced. These hearings are usually informal, although the judge can hear witness testimony. The judge generally will not hear evidence from one side without the other side being present. A bail hearing does not weigh the guilt or innocence of the defendant but simply the probability that they will appear in court when required. However, the strength of the evidence against the defendant may play a role in the decision.

A detention hearing is held in federal court. A prosecutor may bring a motion for this type of hearing if they believe that the defendant should be detained without bail. It can arise when a defendant is accused of certain serious crimes, such as violent crimes, terrorism, or crimes that may carry a sentence of life imprisonment or death. (In some cases, it also may be appropriate if the defendant may pose a flight risk or may tamper with the court process.) Usually, a detention hearing occurs at the defendant’s first court appearance. The defendant has a right to an attorney at a detention hearing, and they can present evidence and cross-examine prosecution witnesses. The judge will decide whether the defendant would pose a risk to the community if they were released from detention, as well as whether imposing certain conditions will ensure the defendant’s appearance at later proceedings.

Probably not. You may not have a clear understanding of whether you are guilty. Even if you are guilty, you may not receive jail time as part of your sentence. Jails are not pleasant places to spend time, and conditions can be even worse for people who are awaiting trial than for people who are serving their sentences. Staying in jail means that the defendant will be under the regular supervision of law enforcement, and statements that an unwary defendant makes can be used against them. In some cases, people who get released on bail have an opportunity to impress police, prosecutors, and judges by improving their conduct. This can help reduce any sentence that they eventually receive or even persuade the prosecution to drop the case. If the defendant is not in custody, moreover, the case may proceed more slowly and may eventually fade away.

There is no meaningful difference between an acquittal and a not guilty verdict. An acquittal happens at a trial when the judge or jury finds that the defendant is not guilty because the prosecution failed to prove its case beyond a reasonable doubt. Sometimes a judge or jury may issue a partial acquittal if they find that the defendant is guilty of some charges but not others. However, there are ways other than a not guilty verdict to get an acquittal. If the prosecution has insufficient evidence, a judge can issue a judgment of acquittal. The prosecution may appeal this type of judgment, although they cannot appeal a not guilty verdict by a jury.

The burdens of proof in the civil and criminal systems are different. A plaintiff in a civil lawsuit must prove their case by the preponderance of the evidence, while the prosecution in a criminal case must prove their case beyond a reasonable doubt. This is a much higher standard to meet. As a result, the same evidence may support civil liability but not a criminal conviction. A wrongful death case may succeed, for example, when a related homicide prosecution fails.

A criminal case usually takes priority over a civil case resulting from the same sequence of events. A defendant may try to delay the civil case until the criminal case is resolved so that the prosecution cannot use information from the civil case to support the charges. Deciding whether to pause or postpone the civil case remains within the authority of the judge in civil court. Often, a judge will grant this type of motion because resolving the criminal case can simplify the civil matter.

Generally not. This level of significant, personal involvement in a criminal case creates a high risk of bias, so the judge probably will need to be recused.

The complexity of a case will affect how long it takes. A simple misdemeanor might be resolved within a few weeks or a month, while a felony case might last for several months or a year. If the prosecution makes a reasonable plea offer early in the process, the case will end much sooner than if it goes to trial.

Very few criminal cases actually go to trial. The charges may be dismissed or dropped, or the defense may succeed in a pre-trial motion that essentially destroys the prosecution’s case. Most often, however, the two sides will reach a plea bargain in which the defendant pleads guilty or no contest in exchange for a lesser charge or lighter sentence. Over 90 percent of all cases result in plea bargains.

Sometimes the prosecution will ask the defendant to waive time, which involves waiving their right to proceed to a trial within the time required by state law. Defendants often are reluctant to waive their right to a speedy trial, but rushing to trial can be as problematic for the defense as it can be for the prosecution. You should probably heed the advice of your lawyer in deciding whether to waive time.

Possibly, but not necessarily. The prosecutor may recommend a harsher sentence after a conviction at trial than the sentence that they proposed in a plea offer. While this may seem retaliatory, it is also possible that the prosecutor has discovered evidence since the plea offer that has altered their understanding of the case. After investigating the case further, they might decide that they are able to prove more serious charges or a greater range of charges. However, the judge makes the ultimate decision on the sentence.

The purpose of pleading no contest instead of guilty generally is to avoid the consequence of a guilty plea in a related civil case. You still have a conviction on your criminal record, just as if you had pleaded guilty. However, someone who is suing you in civil court cannot introduce the no contest plea to prove that you are liable, as they could with a guilty plea. Some states have refined their laws in this area so that no contest pleas sometimes do not shield a defendant from civil liability.

You probably should hire an attorney as soon as possible to help you present your case to the prosecution. The attorney can call the prosecution’s attention to errors in the police report or other inaccurate or misunderstood facts that support the charges. In some cases, a defense attorney may even contact the police or prosecution before charges are filed, while the case is still being investigated. This can stop the process at the earliest possible phase. Otherwise, they may seek a dismissal from a judge through a pre-trial motion, which might knock out vital evidence that the prosecution needs to prove the case. Sometimes simply doing nothing can solve the problem, since the prosecution may eventually realize the flaws in their case on their own. However, proactively trying to get rid of the charges before trial is usually a better strategy, since the outcome of a trial is never guaranteed.

No, a motive is not an essential element of a crime. It can help show why a defendant might have had an intent to commit the crime, but the essential element is intent rather than motive. If the prosecution can show intent without establishing a specific motive, this can be enough for a conviction.

Generally, yes. Not knowing the law is not a defense to a crime in most situations. It would be hard to make this defense in good faith in many cases, since common crimes tend to be obviously illegal.

It depends. A mistake of fact can be a defense to a crime if it would negate the mental state required for a conviction. The mistake usually must be reasonable if the crime requires general intent, but even an unreasonable mistake may establish a defense if the crime requires specific intent. A mistake of fact is not an affirmative defense, so the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not make a mistake if the defense raises this issue. A mistake arising from a mental illness is often not accepted as a defense.

Yes, as long as an essential part of the crime occurred in each state. Two or more states, as well as the federal government, may have a right to prosecute an individual for the same crime without violating the double jeopardy principle.

Negligence is a state of mind that is often equated with recklessness in the criminal context. (In the civil context, it usually means carelessness rather than recklessness.) It is a mental state lower than intent or knowledge. Both negligence and recklessness arise when a defendant disregards a substantial risk of harm. Sometimes negligence is distinguished from recklessness on the basis that recklessness involves consciously disregarding a substantial risk, while negligence involves failing to account for a substantial risk of which the defendant should have been aware.

Premeditated conduct often arises in the context of a first-degree murder charge. It tends to be considered together with deliberation. Premeditation involves thinking about an act before committing it, while deliberation involves thinking about the consequences of the act and making the decision to commit it. This excludes situations in which an individual acted in the heat of passion, but it does not necessarily mean that no emotion was involved. No specific length of time is required to establish premeditation or deliberation.

Malice can be viewed as a higher level of intent, which may involve cruelty, callousness, or a high degree of deliberation. Usually, it arises in the context of violent crimes in which someone died or suffered serious bodily harm. Malice thus may be defined as an intent to cause death or serious bodily harm to someone, or knowingly causing a high risk of death or serious bodily harm. While sometimes the prosecution can establish malice through the statements of the defendant, it may be established through circumstantial evidence in other cases.

Strict liability means that a defendant can be punished for a crime regardless of their mental state. These crimes are usually relatively minor, such as traffic violations and minor alcohol-related crimes. However, statutory rape is a common example of a strict liability crime that can be charged as a felony and come with serious consequences.

The elements of a crime are certain points that the prosecution needs to prove beyond a reasonable doubt. If the judge or jury determines that the prosecution has not proved an element beyond a reasonable doubt, they must acquit the defendant.

No, a defendant cannot be convicted based only on a confession. Due to concerns over false confessions, there must be some corroborating evidence beyond the defendant’s own statements that establishes that they committed the crime. However, this evidence does not need to be substantial. In some cases, it may be enough if the corroborating evidence suggests that a crime was committed, even if it does not suggest that the defendant committed it.

Involuntary intoxication can be a defense in very rare situations. It applies only if the defendant was forced or tricked into consuming alcohol or drugs against their will. Sometimes it can apply if medication causes severe side effects. The defendant must show a high degree of intoxication, and they will not be able to use this defense if a substance that they voluntarily consumed had a greater impact than they expected. Involuntary intoxication can be a complete defense if it prevented the defendant from understanding their actions or the difference between right and wrong. In other words, it needs to eliminate the mental state element of a crime.

The statute of limitations is the period in which the prosecution can bring charges after a crime has been committed. Tolling the statute of limitations means that it is suspended, such that the clock does not keep running. The circumstances in which a statute of limitations can be tolled are relatively rare. The most common example is when the defendant is hiding or on the run after committing the crime.

Yes, there is a defense similar to self-defense called defense of others. A defendant can use this defense if they have a reasonable belief that someone else is in imminent danger of harm. They must use force that is reasonable and proportionate to deal with the danger. Defense of others most often involves defending family members, but it is not limited to this situation.

Possibly. You can use self-defense if you used preventive force in a situation in which a reasonable person would believe that someone else was about to use force. You do not need to wait to be physically struck. The use of preventive force must be limited to what would be necessary to prevent the attack.

Duress and necessity are very similar defenses that are often discussed interchangeably. However, duress involves a response to the actions of other people, while necessity involves a response to circumstances that require an individual to choose the lesser of two evils.

Murder is a type of homicide. Homicide is a general category for any type of killing of one person by another person. It may not necessarily be a crime, such as when someone acts in self-defense. Murder occurs when someone unlawfully kills another person with a high degree of intent or recklessness, also known as malice. (This makes it distinct from manslaughter, which is an unlawful homicide with a lower level of intent.)

In some states, law enforcement will eliminate an arrest from an individual’s record automatically if they are not charged. Sometimes, however, the individual may need to file a formal petition to get a finding of factual innocence. If their petition succeeds, the record of the arrest likely can be sealed. This is important because having an arrest visible to employers and others can have negative consequences.

Generally, yes. criminal records are public unless they have been sealed or expunged, and you can search conviction databases through the criminal background searching firms online. They consolidate data from conviction records in courts throughout the country. (The accuracy of these databases is imperfect, and they have been known to make identification errors.) Alternatively, you can check the records of the court clerk’s office in your county, or the records of offices in other counties in your state.

People who have been convicted of certain crimes, including all felonies and domestic violence crimes, are banned from owning guns under federal law. (State laws often contain similar provisions.) There are some exemptions, and sometimes an individual can get their gun possession rights restored if they have received a pardon, or if the conviction has been expunged or set aside. Sometimes these types of actions may specifically provide that the individual’s right to own a gun is not restored, though. If your right to own a gun is restored under state law, you should make sure that it is also restored under federal law before you buy a gun. A restoration of rights under one system does not necessarily mean that rights are restored under the other.

Generally not. The U.S. Constitution does not provide a right to a trial by jury to juvenile defendants. Some states provide this right, although it may be available only in certain cases in which the penalties are especially severe. (States can extend a broader range of rights than the federal government chooses to provide.)

Not necessarily. Courts often use these terms interchangeably. However, expungement sometimes means the permanent destruction of the records, while sealing may simply mean that the records are made difficult to access (but still exist).

A defendant almost always should hire a lawyer to handle a criminal case. When so much is at stake, the knowledge and experience accumulated by a professional can make a huge difference. They may be able to recognize problems with the prosecution’s case or available defenses that an ordinary person could not identify. The prosecution can bring substantial resources to pursuing a case, so retaining an attorney is an important way to level the playing field. Even if you plead guilty, they may be able to negotiate a better plea bargain because the prosecution likely will take your position more seriously if you have a lawyer.

Probably. Even if the prosecution offers a standard plea bargain for a certain type of crime, you should discuss your situation with a lawyer. Reports that the prosecution offers standard plea bargains may or may not be true, so you may want to benefit from an attorney’s knowledge of the system. Also, you may not be right in assuming that you are guilty. An attorney may be able to identify a defense of which you may not have been aware. Retaining a lawyer may convince the prosecution to give you a better plea deal. At the very least, the attorney can help you make sure that you meet any conditions or requirements imposed by the court.

You may be able to change your lawyer if you hire a private attorney, as long as you get permission from the court. However, you may not be allowed to make a change if it would cause an unreasonable delay or undermine the prosecution’s ability to make its case. Hiring a new lawyer may result in additional costs because the defendant will need to pay a certain amount to both lawyers. A defendant does not have a constitutional right to change their public defender, although they can ask the judge for permission. This request is unlikely to succeed, so a defendant may be better served by asking their current attorney if they can change. The attorney may be willing to accommodate this request.

Yes, a public defender is a fully licensed lawyer. There is no difference between their license and a private attorney’s license. Some people believe that public defenders offer important advantages to their clients because of their familiarity with the system. These jobs are highly competitive, so public defenders are usually well trained, even if they are less experienced than some private criminal defense attorneys. On the other hand, they are typically overworked and underpaid, so they may not provide the same level of attention as a private attorney.

Your lawyer has a duty to respond to your communications and keep you adequately informed about the status of your case. You can try to address concerns in this area in advance through your representation agreement, which can describe the pattern of communications between the attorney and the client. Also, you may be able to get updates from the attorney’s paralegals or assistants if the attorney is too busy to respond promptly.

They likely will talk to your lawyer. This is because lawyers are required to communicate with the lawyers of opposing parties when they are represented, rather than communicating with the opposing parties directly. The prosecutor will transmit plea offers to your attorney, and your attorney will transmit your acceptance, rejection, or counteroffers to the prosecutor. This can be helpful because it averts the risk of the defendant making incriminating statements to the prosecutor, which can be used against them.

Yes, the lawyer will need to know about the details of your case to craft an effective defense. You should be honest with the lawyer unless they tell you that they do not want to know specifically what happened, a concern that is probably based on ethical rules. If you tell your lawyer that you are guilty, the lawyer still may construct a defense and urge you to fight the charge. Even if you committed the acts that comprise the crime, the prosecution may not be able to legally prove its case. An attorney still can argue that a jury should acquit their client, even if they know that they are guilty.

Lying on the stand is a very bad idea. You could be exposed to a perjury charge if you are caught, and your credibility as a witness will be severely discredited. Your lawyer will do their best to persuade you not to lie on the stand, but they likely will withdraw their representation if you proceed. (However, they will not tell the judge why they are withdrawing their representation.)

Very unlikely. A criminal defendant almost always should retain an attorney or at least ask the judge to appoint a public defender for them. There is no substitute for a lawyer’s knowledge of the criminal justice system. However, if a crime comes with minimal penalties and collateral consequences, you may be able to handle the case on your own if absolutely necessary. You should make sure that you understand the short-term and long-term implications of a conviction before making this decision. Even if you decide to proceed without counsel, you may benefit from a consultation with a lawyer to discuss your situation.