Criminal Laws – How The Criminal Process Begins


criminal process is all about perception
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Criminal laws are the means by which the social behavior and conduct of individuals and institutions is regulated and enforced. Criminal laws generally concern crimes committed with an intent to injure-murder, rape, burglary, theft, robbery, etc. The crime is considered to be committed against the state or community, rather than against the individual victim, and accordingly, it is prosecuted on behalf of the people of the state.

Both the federal government and each state have enacted laws defining criminal conduct. Federal and state laws are wide-ranging and intertwine in all aspects of society today. From random license checks that lead to vehicle searches, to violent actions against suspects, the criminal process can touch many people. It can be intimidating and often life altering.

Criminal laws also set out the process or procedure for arresting, charging, convicting and sentencing individuals. Defendants (persons charged with a crime) are charged with crimes by federal or state officials and prosecuted by government attorneys known as attorneys general, prosecutors or district attorneys. Federal and state governments have varying criminal procedures, although all criminal procedures, taken as a whole, are ideally designed to protect a defendant’s constitutional rights. A defendant has many rights, including the right to a public and speedy trial, to confront his or her accuser, to a trial by jury, to remain silent, and to representation by a competent attorney.

Television has made us familiar with arrests, warrants, trials, sentencing and incarceration. However, the reality is more complicated. Criminal justice depends on a wide-ranging web of statutes, codes, rules and case law before the process is completed.

How The Criminal Process Begins

The criminal process begins with the commission of a crime and an arrest of the individual who is believed to have engaged in the criminal act. Depending on the facts and evidence, the individual is then charged with a misdemeanor or felony. The city, county, state or country where the crime occurred brings the charge. All states, and the federal government, have a criminal code, setting out and defining criminal acts that are prohibited by law. Not every act is illegal or criminal-the commission or existence of a crime is dependent upon state and federal definitions of offenses. Unless the facts of the situation meet the definition, the conduct is not criminal.

Crimes are categorized as either misdemeanors or felonies. The distinction is important because the penalty imposed is based on the classification of the crime in one of these two categories.


Misdemeanors are crimes in which imprisonment of not more than 1 year may be imposed. Misdemeanor offenses are punishable by fine, incarceration in a local jail, or both. They are less serious crimes and typically occur because of “fault or omission” on the part of a person, rather than an intent to injure. Additionally, misdemeanors are further classified in order of their severity. For example, a state may have class A, B and C offenses, all having different punishments.

SIDEBAR: Many states have laws making the commission of a second or third misdemeanor result in a felony charge, commonly known as the “three strikes” rule. For example, retail theft or shoplifting may be a misdemeanor crime if the value of the items is less than $150. However, the crime is converted into a felony on the third arrest, although the items are still worth less than $150.

Many persons believe that if they are charged with a criminal offense, they have an absolute right to a jury trial. However, it is important to understand that the defendant on trial for a misdemeanor offense does not have a constitutional right to a jury trial where the penalty is less than 6 months of incarceration. Many states allow the judge or magistrate of a misdemeanor court to determine guilt or innocence to avoid the expense and time required in jury trials.

SIDEBAR: California has a “wobbler” statute concerning offenses that are punishable by either a state prison sentence or time in the county jail (termed a “felony/misdemeanor offense”). The characterization of the crime as a misdemeanor or felony depends on the sentence, rather than the actual charge. For example, a person charged with felony unauthorized practice of medicine and sentenced to a year or less in county jail is not a convicted felon. The felony charge has become a misdemeanor conviction because she was sentenced to county jail, instead of prison.


Felonies are the severest of crimes and are usually punishable by at least a year’s incarceration in a federal or state penitentiary. Fines may also be imposed. In many states and in federal courts, a person convicted of a felony can be sentenced to death.

Felonies are categorized by degrees based on their seriousness, such as “first-degree” murder. Each state has different degrees of felonies depending on the facts of the case. For example, a murder is considered to be a first-degree murder if the murderer had a premeditated plan, but only a second-degree murder if the killing occurred without actual premeditation. A murder that occurs because an argument gets out of hand is second-degree murder.

SIDEBAR: A criminal act can be both a felony and a misdemeanor. However, a defendant may only be charged with a felony or a misdemeanor (but not both) where a single transaction is at issue. For example, if the evidence against a suspect in a home invasion is weak, the prosecutor may drop the felony charge of burglary and instead charge him with the lesser misdemeanor offense of trespass; but the prosecutor may not try the suspect on both counts.

Attempting a Crime:

In some situations, a crime is not actually carried out, but only attempted because the person failed to complete the criminal act or was foiled in his attempt. However, it is still a crime to merely attempt or prepare for a criminal act. A person attempting to manufacture drugs may be criminally charged and convicted, even if the attempt was unsuccessful.

Differences From The Civil Courts

As mentioned above, a criminal action is based on an offense considered to be against the state, brought by a prosecutor. The result sought in a criminal action is usually the imprisonment of the defendant or recovery in the form of a fine.

A civil action is based on an offense against an individual, rather than against the state or community. The plaintiff in a civil action brings the case himself, typically through a lawyer he retains, and typically seeks to recover money from the defendant for the harm caused by the defendant.

Civil issues are never tried in a criminal case, and vice versa.

EXAMPLE: Drunk driving cases involving an injury or death to another person can provide clarification. The driver is prosecuted by the state in a criminal court for his crime of driving while intoxicated and injuring another person, where he is then judged innocent or guilty of breaking the law. Additionally, the driver will often be a sued by the injured party in a civil lawsuit seeking a monetary judgment in compensation for damages suffered.

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