Criminal Defense FAQs

Previous Months' Selections

Wouldn't longer sentences mean less overall crime?

Sentence length may or may not correlate with a decrease in crime. Criminal punishment has four basic goals: rehabilitate the offender; restrain the offender from committing further crimes; exact revenge against the offender; and deterring the offender and the general public from criminal behavior. It is unclear if longer sentences actually convince a particular offender not to commit another crime. However, recidivism rates are high, thereby suggesting that the average offender does not "learn his lesson" in prison and refrain from further criminal activity. One thing that does correlate positively with a reduction in criminal activity is increasing age; people under the age of thirty-five years commit most crimes. Therefore, it could be argued that sentences that keep offenders in prison until middle age will reduce overall crime rates.

In addition, more time in prison could allow for more complete rehabilitation because the offender could stay in treatment programs for a longer period of time. Batterers are more likely to change the controlling behavior that leads to domestic abuse if they participate in long-term intensive educational programs. Sex offenders may benefit from multi-level treatment plans spread out over a period of time. In prisons with educational programs, offenders who stay long enough may receive high school or college degrees or learn a trade, which will equip them to lead a productive, law-abiding life. However, some states do not provide adequate resources for these rehabilitation programs.

Longer sentences do not appear to deter the general public from criminal activity. Many times, it is the likelihood of getting caught that deters a person from criminal activity, not the length of the sentence. Many crimes are committed on impulse, and the threat of a lengthy sentence does not even enter the offender's mind.

Finally, the cost of longer sentences in terms of tax dollars is very high. If sentences are lengthened, new prisons and jails will need to be built to accommodate offenders who would be incarcerated under sentencing guidelines and mandatory minimum sentences.

Back to Top

Is there a way to punish a criminal before he actually commits the crime he is planning?

In some circumstances a "crime" can be punished before it occurs. Many jurisdictions have either a general "attempt" crime or individual statutes that make attempted murder or attempted robbery, or the like, a crime. The purpose of these statutes is to punish an individual who has shown himself or herself to be dangerously inclined to commit a crime without waiting until the criminal act is actually completed. In order to convict a person for an attempted crime, the government must prove beyond a reasonable doubt that the person had the intent to commit an act or bring about certain consequences that would amount to a crime, and that he or she took some step beyond mere preparation toward that goal.

Whether the offender has the intent necessary to be convicted of attempt depends on the mental state required by the underlying crime. If a person's actual intention at the time he or she attacked the victim was to cause bodily harm, he or she cannot be convicted of attempted murder if the victim does not die. (However, he could be convicted of the actual crime of murder if the victim died, even if his intention was only to cause bodily harm.) Likewise, a person whose plan to steal fails can be convicted of attempted theft, which requires the intention to deprive another of his or her property permanently, only if he or she had the same intention at the time the crime was attempted.

Like most crimes, attempt requires a "bad act" as well as a bad intention. Therefore, the government must prove the offender engaged in conduct that moved toward committing the crime. The exact nature of the act needed to meet this "preparation" requirement varies from case to case, depending on individual facts. For example, a person who checked in at the ticket counter of an airport and sat in the waiting area with a gun in his pocket could be convicted of the crime of attempting to board an airplane with a gun. A person who planned to rob a bank messenger and drove around looking for him on his regular route, but did not find him, and did nothing else would not necessarily be guilty of attempted robbery.

The punishment for the crime of attempt can be the same as the punishment for the completed crime. However, most jurisdictions make some distinction and provide for a lesser punishment for attempt. For instance, some states provide that the punishment for attempted first-degree theft will be the same as the crime of second-degree theft. The Model Penal Code, which is a source of many states' criminal statutes, generally requires the same punishment for attempt as the punishment for the underlying crime on the rationale that a person who attempts a crime has shown himself to be just as much in need of corrective sanctions as the one who actually completes a crime.

Back to Top

Are all illegal drugs treated equally when it comes to punishing drug dealers?

No, the punishment for drug crimes depends not only on the criminal conduct of the offender but also on the classification of the drug. Federal sentencing guidelines begin with forty-three base offense levels and add or subtract levels depending on certain specified criteria. The higher the offense level, the harsher the sentence.

The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. However, if the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and listed on the same schedule of controlled substances. However, the quantities of crack needed to impose a certain sentence are much less than the quantity of powdered cocaine. For example, a person convicted of the crime of delivering 5 grams of crack will receive a sentence in the federal system of five to forty years. To receive that same sentence, a person would have to be convicted of delivering 500 grams of powdered cocaine.

Back to Top

Can a person be guilty of drunk driving if he only had one drink?

The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol. To find a person guilty under the first definition, a jury must be convinced beyond a reasonable doubt that the person's blood alcohol content (BAC) exceeded a certain amount. In most states the legal limit is .08 (or 8 percent). Therefore, if it is proven that the person's BAC at the time of the incident was .08 or greater, he or she can be convicted of drunk driving, regardless of how much alcohol was actually consumed.

In contrast, the second definition does not refer to any particular BAC; it focuses on the driving behavior of the person. If the person's driving is impaired by the consumption of alcohol, he or she can be found guilty of drunk driving. Instead of presenting evidence of the BAC to a jury, the prosecution seeking a conviction under this definition generally presents testimony about the person's driving and consumption of alcohol. A police officer will often describe the impaired driving that lead him to pull the person over and the person's ability (or lack thereof) to perform field sobriety tests, such as walking a straight line. Evidence is also usually presented concerning the person's consumption of alcohol. If the jury then concludes that the prosecution has met its burden of proof, it will convict the person of drunk driving. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.

Back to Top

What is the role of the federal government in criminal law?

Crime has long been considered the concern of state government. States are authorized to protect their citizens from criminal activity by prosecuting criminals. States are also authorized to determine what constitutes a crime statutorily (through the legislature) and through common law. The federal government, on the other hand, has limited jurisdiction and must link any crimes it prosecutes to its powers under the Constitution. The most commonly used powers to support federal criminal legislation are the commerce power, the taxing power, and the postal power. While Congress has used these powers all along to define crimes, there has been an explosion of federally created crimes in the last half of the 20th century. Most of the laws controlling white-collar crime, like the RICO Act and the Victims and Witnesses Protection Act have been passed since 1950.

In addition, Congress has become increasingly involved in the "war on drugs" with the creation of various drug statutes. Due to the severity of the penalties, often, local prosecutors prefer to have drug charges prosecuted in federal court rather than file state charges. Most federal laws have as their rationale that the particular crime addressed needs a uniform response nationwide, and due to the nature of drug crimes (particularly distribution), it is difficult to prosecute drug crimes on a state-by-state basis.

Examples of successful federal criminal legislation are the federal gun laws and federal computer laws. The federal gun laws provide uniformity and the federal computer laws make it possible to punish Internet crime.

The U.S. Constitution has always played a role in criminal law because it defines important individual rights that must be preserved even in a state prosecution involving a state crime. The Constitution guarantees a right to a trial by jury in open court, the right to cross-examine witnesses, the right to remain silent (on grounds of self-incrimination), the presumption of innocence, the right to be represented by a lawyer, and the right to be free of cruel or unusual punishment. States are required to pay for attorneys for indigent offenders, and federal agencies provide oversight to state prisons to ensure compliance with these constitutional requirements.

Back to Top

Are grand jury proceedings secret?

Most courts have rules that prohibit disclosure of grand jury proceedings. The rules typically apply to the government attorneys, the grand jury members, and the court personnel. Violators of the rules can be held in contempt of court if a case against them is proven. However, proving that the leaked information came out of the grand jury proceeding and identifying exactly who made the prohibited disclosure is difficult in most cases.

Another challenge to keeping the proceedings secret arises because the prohibition against disclosure often does not apply to a person subpoenaed to appear before a grand jury. Witnesses are free to discuss their testimony with the media or with anyone else, unless the judge expressly orders them not to.

Persons who are the subject of a grand jury proceeding are not entitled to any notice regarding the scope of the investigation or the nature of the incidents under consideration. They are generally not allowed to have an attorney present with them in the grand jury room, but may be permitted to leave from time to time to consult with an attorney outside the grand jury room.

Back to Top

Are there special crimes to control children's behavior?

While there is a special court system to handle juvenile crime, there is usually not a special juvenile criminal code. Adult criminal codes are applied in the juvenile system, but the children are not generally accused of crimes. Instead, they are accused of committing delinquent acts. Sentences are designed to educate and rehabilitate children, rather than punish them. Children cannot be locked up in adult jails except for very limited periods of time. A child held in an adult jail must be out of sight and sound contact with the adult inmates.

In earlier days, special crimes that only applied to children did exist. These crimes were the so-called status offenses and punished behavior that would not be criminal if committed by an adult. Status offenses included running away from home, skipping school, disobeying parents, and breaking curfew. The federal Juvenile Justice and Delinquency Prevention Act made receipt of federal funds conditioned on eliminating status offenses, and most states have repealed any status offenses. However, these behaviors may still trigger an investigation by child protective services to determine if the child needs assistance from the court or social service agencies.

Back to Top

What is the difference between probation and parole?

Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.

Typically, an offender has been sentenced to an indeterminate or range of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.

Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.

Back to Top

How does a district attorney decide which criminals to charge?

A district attorney or prosecutor has the discretion to decide which crimes should be charged. In a typical case, the police investigate a crime and send a report to the prosecutor. The prosecutor then must decide whether to bring criminal charges against the subject of the investigation. First, the prosecutor analyzes the case to determine if it is legally sound. The case must not have any obvious defects that will get it thrown out of court, such as violation of the defendant's constitutional rights or destruction of evidence crucial to the defense. Next, the prosecutor decides if there is adequate and reliable evidence of the person's guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable. If offering a plea, such as an agreement by the defendant to undergo drug treatment in return for a suspended sentence, is appropriate, the prosecutor may prefer to dispose of the case in this manner. Additional factors which may influence the prosecutor's decision include the defendant's culpability, which may be lacking because he or she acted out of a worthy motive or has mental defects. Finally the prosecutor must decide if he has the resources to pursue the case or if it is a low priority for that particular office.

Many prosecutors are elected officials and as such can be voted out of office if the public does not like the emphasis of their office. Some prosecutors, for instance, may focus most of their efforts and the office's resources combating property crime, while others may focus on domestic abuse. If the electorate does not like the particular goals of the prosecutor, it can end the practice by failing to reelect the individual or by seeking to have them removed from office.

Back to Top

What is the difference between rape and sexual assault?

Rape is often used as a generic term for unwanted sexual acts. However, historically its common-law definition required the sexual act to be intercourse, the rapist to be a man, and the victim to be a woman, other than his wife. Furthermore, the act had to be committed as a result of force or the threat of force. Common-law rules often required the rape to be corroborated by independent witnesses to negate the offender's defense of consent.

Many modern-day penal codes no longer use the term "rape", but instead use sexual abuse or sexual assault to define the prohibited acts. Rape is covered by these statutes and may be designated as sexual abuse in the first degree. However, most sexual assault statutes cover intercourse as well as other sexual acts and apply to homosexuals as well as heterosexuals. Generally, husbands can be charged with sexual assault of their wives, although they may receive a lighter sentence than non-marital sexual assault. Lesser offenses, such as unwanted touching or lascivious acts may be included in the definition of sexual assault.

Back to Top

Learn More: Criminal Law

Our criminal law has its roots in medieval England. Under early common law, criminal behavior was considered a breach of the King's peace, and therefore, considered harmful to society in general, which required governmental action. Only the major felonies, such as treason, rape, larceny, battery, kidnapping, murder, and arson were prosecuted and the only sentence was death. Today, criminal law is a vast and complex body of statutes, rules, and judicial decisions that touch nearly every aspect of our lives. State, federal, and municipal criminal codes have divided the old common-law felonies into many separate crimes and now provide an array of sentencing options. In addition, new crimes have been defined addressing drugs, automobiles, businesses, organized crime, computers and other modern situations.

A crime must be clearly defined in order to pass scrutiny under the federal Constitution, which prohibits the government from taking a person's life, liberty, or property without due process of law. A vague description of the crime or a lack of specific elements or intent needed for committing the crime leaves a person without knowledge of exactly what is prohibited. In order to be a crime, the prohibited conduct must include both a "mens rea" or intent and an "actus reus" or bad act. Accidentally hitting somebody when you draw back the baseball bat to swing at a ball is not a crime because it lacks required intent. Wishing someone would drop dead is not a crime because it lacks the bad act. Examples of crimes and topics of interest in criminal law include:

Drug violations are criminalized in both federal and state criminal justice codes, which typically list controlled substances, which are prohibited under any circumstances or may not be used except under a doctor's care. When a person uses one of these substances in violation of a criminal statute, he or she has committed a crime.

DWI/DUI means "driving while intoxicated" or "driving while under the influence" and refers to the crime of drunk driving. This crime usually includes driving while using drugs or alcohol and operating a car or other kind of motorized vehicle, such as a motorcycle or boat. Drunk driving is defined by each state's criminal code.

Federal jurisdiction refers to authority of a federal court to hear cases involving crimes charged under federal law. Crime has traditionally been the domain of individual states, but Congress is authorized through its powers under the commerce, postal, and taxing clauses in the Constitution to make criminal laws covering those areas. While a person can be prosecuted for the same incident under state and federal law, most often the choice of whether to bring an action in state or federal court is based upon resources available to investigate and prosecute the crime and on sentencing options.

Felonies are crimes punishable by over one year in prison. Most felonies are also punishable by a fine, but the critical determination for considering a crime a felony is the prison sentence.

Fraud is not a separate crime, but is an important part of property crimes such as embezzlement and false pretenses. The lawbreaker must knowingly and intentionally deceive the victim in some manner for the fraud element to be satisfied.

Grand jury proceedings are a method used by prosecutors to bring criminal charges against a criminal suspect. A prosecutor will often convene a grand jury when investigating complicated criminal matters.

Juvenile crimes are typically called delinquent acts and handled in the juvenile court system. The major purpose of the juvenile system is to rehabilitate the offender, and many sentences require counseling or other family intervention. Juvenile court jurisdiction typically ends when a person turns eighteen.

Misdemeanors are crimes with a punishment of less than one year in prison. Many crimes, such as theft, have degrees of seriousness with the most serious being felonies and the less serious being misdemeanors. Often, procedures used in misdemeanor prosecutions are abbreviated and in some cases, do not require a trial.

Parole and probation are used in the sentencing phase of the criminal-justice system. Parole refers to the condition of supervised release that occurs after an offender has spent time in prison. Probation is a sentence imposed instead of prison and is usually subject to terms and conditions designed to make the offender a law-abiding citizen.

Prosecution refers to the government's case against the lawbreaker. A prosecutor - the lawyer presenting the government's case - has complete discretion to decide whether to bring a charge against an alleged offender and must prove all charges beyond a reasonable doubt.

RICO refers to the federal Racketeer Influenced and Corrupt Organization Act passed in 1970 as part of a larger organized crime bill. The purpose of the act is to combat the infiltration of organized crime into legitimate businesses, but also it has been used to prosecute individuals other than just those associated with organized crime.

Sex offenses include much more than the common-law crime of rape, which historically was limited to unlawful sexual intercourse by a man against a woman through the use of force or the immediate threat of force. Most states prohibit lesser invasions, such as unwanted touching, as well as prosecution of spouses for sexual assault. In addition, sex offenses include crimes that are defined based on the status of the victim, such as a child or therapy patient.

Traffic violations may be crimes or may be classified as infractions, which are generally not considered part of the criminal law. In jurisdictions where they are crimes, they are typically considered the lowest level of misdemeanor and are only punished by a fine. However, some traffic violations can rise to the level of more serious crimes, such as vehicular homicide or leaving the scene of an accident.

Victims' rights refers to a body of emerging law that focuses on the needs and concerns of crime victims. Victims now have rights, for example, to information about the prosecution of the crime committed against them, to receive counseling and compensation, and to participate in the sentencing process.

White collar crimes refer to the group of property crimes typically committed to gain a business or professional advantage. White collar crimes include mail fraud, bank fraud, securities fraud, embezzlement, tax crimes, and environmental pollution.

Back to Top

If the Police Pull Me Over for a Traffic Offense, Can They Search My Car and Arrest Me?

When it comes to cars and their drivers, the police have a quite a bit of latitude in what they can do. It is perfectly legal for them to pull you over for a broken taillight - even if the real reason for making the stop is because the police believe something else is going on. As long as an officer can make a plausible argument to a judge that he believed that you were in violation of some traffic law, he or she can pull you over.

Once the police pull you over, they can search for and seize anything in plain view. This means if you have an open bottle of alcohol lying on the back seat, it is fair game for the police. If police have probable cause to believe you have been involved in criminal activity, including drunk driving, they can arrest you without a warrant. After you've been arrested, the police can conduct a full and legal search of your car and any belongings found in your car.

No matter how minor the alleged violation, the police can legally require you and your passengers to get out of the car. While they can't search your car unless they have probable cause to believe there is criminal activity afoot, officers can do a brief pat down of you or any passenger if they have a only a reasonable suspicion that they might be in danger. Law enforcement can also have a trained dog sniff around your car for contraband without belief that something is wrong, and if the dog finds something, it can be used against you in court.

It is always a good idea to be polite and cooperative in these situations, even if you feel you're being unfairly treated. If you have been stopped, you must produce a valid driver's license and, possibly, proof of insurance; failure to do so carries its own penalty. You do not, however, have to answer any questions the police ask you, as you are always protected by your Fifth Amendment right against self-incrimination.

If you feel you have been treated unfairly during a traffic stop, an experienced attorney can help you determine whether the police have acted illegally and, if so, what your remedy might be.

Back to Top

When Do the Police Have to Read Me My Rights?

Your "rights," otherwise known as the Miranda warnings, are a list of statements that law enforcement must recite to you before they can conduct a custodial interrogation. The Miranda warnings exist to protect your Fifth Amendment right against self-incrimination. If you understand these rights before you talk to the police, the legal theory goes, anything you say after that will be voluntary. While the exact wording differs between jurisdictions, the warnings are essentially as follows: You have the right to remain silent. You have the right to have an attorney present. If you can't afford an attorney, you will be provided one by the government. Anything you say can be used against you in court.

Every state requires police to give the warnings in some form after taking a suspect into custody. The goal behind the requirement is to protect the truthfulness of the evidence that will be later used in court. If a person feels pressured or intimidated into talking, it is assumed that they are less likely to tell the truth and more likely to tell the police what they want to hear. Verdicts based on coerced confessions erode the efficacy of the criminal justice system, and the Miranda warnings are intended to protect suspects from their own tendency to succumb to intimidation.

So, do the police have to read you your rights? The question hinges on whether you are in custody or not. The rule of thumb in determining the custody question is whether or not you feel free to leave. In most cases, the answer is pretty easy - if you've been arrested, then you are in custody and law enforcement must give you the Miranda warnings. There are some situations, however, that aren't so simple. For example, what if the police have stopped you on the street but haven't officially arrested you yet? Or, what if you have consented to the police entering your home for a chat? You may not be in handcuffs or at the police station, but you still may be in custody.

Of course, most people don't feel free to leave when they're talking to the police, but in the event that you did say something incriminating before the police gave you the Miranda warnings, a good attorney can help you determine whether you were in custody and whether a judge should disallow your statement to be entered as evidence against you.

Back to Top

What Happens if I am Pulled Over for Drunk Driving?

Once you are pulled over under suspicion of drunk driving, an officer will usually ask you to perform a field sobriety test. This usually consists of tasks that will allow the officer to observe your level of physical or cognitive impairment, like walking heel to toe in a straight line or reciting the alphabet backwards. Refusing to participate in a field sobriety test is generally fruitless, as the officer will request that you submit to chemical testing. This may include a breathalyzer test, which an officer can do on the scene, and blood and urine tests, which must be performed at a medical facility. You are required to submit to such testing should an officer ask, and refusal to participate in chemical testing can result in an immediate suspension of your driver's license for six months to a year. Depending on the circumstances, refusal to submit to the testing can yield a higher penalty than the drunk driving conviction itself. These "implied consent" laws rest on the assumption that if you have undertaken the responsibility of driving a car, then you have given consent to be tested for your ability to drive that vehicle safely.

The minimum blood alcohol level necessary to be considered "driving under the influence" or "driving while intoxicated" is .08. At that level you are "per se" intoxicated, even if you show no outward signs of impairment. All states also have a "zero tolerance" policy for underage drinking - a person under the legal drinking age found driving a car with any trace of alcohol in his system will be penalized, regardless of evidence of physical impairment.

Sentencing for DUI/DWI is largely dependent on an offender's history of drunk driving and whether or not the offense resulted in an injury to any other person or property. Those convicted of drunk driving may face fines, jail time, license suspension and mandatory participation in an alcohol treatment program. Recently, courts have been increasingly using "certified ignition interlock devices," which detect whether alcohol is present in the driver's system each time he or she wants to start the car. The device prevents the car from starting if any alcohol is detected.

If you are charged with a DUI/DWI, an experienced attorney that specializes in this type of case can help you navigate the system and ensure that your rights are protected throughout the process.

Back to Top

Do the Police Need a Warrant to Arrest Me?

While it may seem surprising, in most cases the police do not need a warrant arrest you. It all comes down to probable cause - if the police have probable cause to believe that you have committed a crime, they can arrest you without going to a judge for a warrant first. In getting a warrant, law enforcement officers have to convince a judge that there is probable cause to make an arrest; if an arrest was made without a warrant, the police must later convince a judge that there was sufficient probable cause at the time the arrest was made.

So what constitutes probable cause? In general, probable cause exists when law enforcement have more than a "bare suspicion" that a crime has been committed, and that the person they want to arrest has committed the crime. The police don't actually have to witness the crime; they just have to honestly believe it is more likely than not that the suspect was involved. Once of the most common bases for a warrantless arrest is where a witness to a crime gives a description of a perpetrator and the police see someone fitting that description nearby. In most cases, that is sufficient probable cause to justify an arrest for a felony offense. The same does not hold true for misdemeanors, however - an officer cannot make a warrantless arrest of someone for a minor crime (such as shoplifting) without having personally witnessed the crime.

Generally, police need an arrest warrant if they are planning to arrest a person in his or her home. This is not a blanket rule, however, and police can make a warrantless arrest in a suspect's home if "exigent circumstances" exist. Exigent circumstances can include the following situations: when the police have chased a fleeing suspect into his home; when the police believe that someone might be in danger inside the house; or if a person (not necessarily the suspect) answers the door and lets the police come inside. In any of those cases, an officer may later justify the warrantless arrest even if made inside a suspect's home.

If a judge later rules that there was insufficient probable cause for the police to arrest you, there remains little you can do. An experienced attorney may argue that any evidence gathered during the course of an unlawful arrest should be inadmissible during trial, but consequences of an unlawful arrest are evidentiary in nature.

Back to Top

Can Police Conduct a Search Without a Warrant?

In most cases, police need a warrant to conduct a search. Police get a warrant by showing a judge or magistrate that there is sufficient probable cause to conduct a search. If the judge determines that there is sufficient probable cause, then a warrant will be issued for police to search for specific items in a specific place. Often the description of what's being sought might be somewhat general, like "drug paraphernalia and anything associated with the buying, selling or using of illegal substances."

There are three common exceptions to the rule that police need to obtain a warrant before conducting a search. The first, called the "plain view doctrine," refers to situations in which the police, during the course of legal police business, see something of interest in plain view. For example, if you have consented to talk to the police inside your home, and an officer happens to see drug paraphernalia or an item fitting the description of a something that has recently been stolen, an officer can legally seize the evidence without a warrant.

Second, the police can also legally conduct a warrantless search if you give consent for them to do so. Finally, a police officer can conduct a "search incident to arrest" without a warrant. This means that during the course of a lawful arrest - one that's based on probable cause - the police can search the arrestee and the immediate surroundings for weapons or for evidence the police fear might be destroyed. The search is limited, however, to the area within the suspect's "immediate control." This usually means that police cannot search beyond the room they are in when they make the arrest. If police believe there might be other armed suspects in the building, they can do what's called a "protective sweep" to look for people who might be hiding. In the course of a protective sweep, police can then legally seize anything incriminating within plain view.

There are also emergency situations, known as "exigent circumstances," in which a police officer can search without a warrant. For example, an officer can follow a fleeing suspect into his house and search for evidence the officer believes the suspect intends to destroy. The same holds true if an officer has reason to believe that someone is in danger. If he hears cries coming from inside a house, an officer can enter, make an arrest and perform a search incident to arrest.

Back to Top

How Does the Insanity Defense Work?

Proving that you are not guilty of a crime by reason of insanity is extremely difficult. Only about one percent of criminal defendants even raise the defense, and only a quarter of those are successful. While the legal definitions of insanity vary from state to state, the essential element of insanity defenses is that the defendants lacked the required "criminal intent" to make them legally responsible for their actions.

The most widely used legal definition of insanity is known as the M'Naghten rule, named after a famous English murder case from the 1800s. In a nutshell, the M'Naghten rule requires a defendant to prove either that he did not know what he was doing, or if he did, that he didn't know what he was doing was wrong. Boiled down even further, a defendant is insane under M'Naghten if he didn't know right from wrong. Another standard courts will use is called the irresistible impulse test. Under this standard, defendants must prove that they knew their acts were wrong, but couldn't control themselves.

About one-third of the states use the American Law Institute's test for insanity, which states that a people aren't responsible for criminal conduct if, as a result of mental disease or defect, they lack substantial capacity to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law. This is a slightly more lenient standard than M'Naghten, as defendants must only show a "substantial incapacity" that they didn't know that what they was doing was wrong, rather than having an absolute inability to know the difference.

There is good reason for having the insanity defense available, even if it is rarely used. Since putting people in prison for crime serves in part to deter future crime, it doesn't make sense to put people in jail who had no control over what they were doing in the first place, or did not intend to do what they did. Most would also argue that treatment of the criminally insane in a mental institution is a more appropriate way to keep the public safe than prison. Rarely do those who are found not guilty by reason of insanity go free, and often their commitment to a treatment facility can last much longer than a prison sentence would have.

Back to Top

Can the Police Legally Stop Me, Even if I Have Done Nothing Wrong?

The answer is yes. It is not against the law for one person to stop another in the street and ask him or her questions, and the same rules apply to police officers. They can approach you, ask you questions and even ask to search your belongings.

What the police can legally do during a stop depends largely on what the officer is thinking about you at the time. This may seem unfair, but if the police have a "reasonable suspicion" that you have been involved in a crime - even if you are totally innocent - they can detain you and even frisk you. The officer's reasonable suspicion must be based on objective facts gleaned from the circumstances, and cannot be based on a mere hunch or general distrust. Police are not allowed to stop a person based solely on race, but racial profiling can be extremely difficult to prove.

Perhaps, for example, you fit the description of someone who has committed a crime nearby. This is a common example of a situation that might give police a reasonable suspicion to stop you. This would likely not be enough evidence for a police officer to arrest you, but it would be sufficient grounds for a stop. Once an officer has a reasonable suspicion that you have been involved in a crime, he can legally do a brief pat down to look for weapons or anything else that might put the officer or others in danger. The police can also legally prevent you from fleeing if they have reasonable suspicion, whereas if they do not, you are free to go.

If it becomes clear that law enforcement intends to detain you, it is a good idea to ask up front what their intentions are. Police are required to give you Miranda warnings if you are in custody, a procedure whose main purpose is to protect your Fifth Amendment right against self-incrimination. One crucial thing to remember is that regardless of whether you have explicitly been given the Miranda warnings, you always have a right to remain silent. In other words, you never have to questions if you don't want to. The same is not true for showing identification, however, as many states make it a crime to refuse to show a police officer your ID if he or she asks to see it.

Back to Top

What Does "Beyond a Reasonable Doubt" Mean?

Proving guilt "beyond a reasonable doubt" refers to the standard of proof the prosecution must meet in a criminal case. The standard of proof is the level of certainty each juror must have before determining that a defendant is guilty of a crime.

In practice, it is impossible to precisely define "reasonable doubt." It can be easier to understand, however, by contrasting it to the standards of proof used in civil trials. In a civil trial, where a person's freedom is not at stake, there are two possible standards of proof that must be met in a case. One is the "preponderance of the evidence" standard, which means certain facts or evidence presented at trial are more likely than not to be true (just over 50% is fine). The other standard is "by clear and convincing evidence," which means that there is a high probability that a piece of evidence is true. Reasonable doubt is defined somewhat differently depending on what jurisdiction you're in, but essentially, a juror can have some doubt in her mind, but it cannot be one that would affect a reasonable person's "moral certainty" that a defendant is guilty. Because a defendant's liberty is often at stake in a criminal trial, the reasonable doubt standard is the highest standard in the legal system.

Another vital component to the criminal trial is the requirement that the prosecution bears the "burden of proof." A defendant is presumed innocent until proven guilty, and therefore it is the prosecution's job to build a case against the defendant, not the other way around. This may seem like minor distinction, but if the prosecution simply had to accuse the defendant of a crime and then wait for the defendant to prove that he or she didn't do it, a corrupt prosecutor could charge anyone with any crime, without proof. If, under that system, the defendant had no alibi, the jury might be forced to convict based on very little evidence.

The drafters of the Constitution were wary of a legal system with too much power, and promised that no person under the law should be deprived of life, liberty or property without due process of law. Requiring the prosecution to prove each element of a crime beyond a reasonable doubt is one way in which the justice system protects each defendant's fundamental right to due process.

Back to Top

Youth and Violence Facts

  1. Guns killed 4,205 children under the age of nineteen in 1997-that is nearly twelve children each day. Of that number, 2,562 were victims of murder, 1,262 died by suicide, and 306 were victims of accidental shootings.
  2. The number of children killed with guns increased substantially between 1987 and 1993, while the numbers of other types of homicide remained constant. Between 1980 and 1997, 75 percent of all children age twelve and over who were murdered were killed with a firearm.
  3. Children between the ages of twelve and seventeen are twice as likely as adults to be victims of violent crime and three times as likely to be victims of simple assault.
  4. Although the total number of multiple-victim school homicides has increased in recent years, the total number of school-associated violent deaths has actually decreased. A student has a less than one in 1,000,000 chance of becoming a victim of a school-associated homicide.
  5. A recent survey indicated that the number of high school students bringing weapons to school has declined. Sadly, however, nearly 10 percent still reported having carried a gun on school property during the previous month.
  6. The peak hours for violent youth crime are between 3:00 and 7:00 p.m. After school programs can serve several goals including keeping kids out of trouble and keeping youngsters safe.
  7. Violent juvenile crime arrest rates have actually declined by 19 percent since 1994.
  8. Despite this decrease, children are increasingly being tried as adults and confined in adult jails and prisons. A recent study indicated as much as a 35 percent increase in the confinement of juveniles in adult detention centers.
  9. Children detained in adult jails and prisons rather than in juvenile facilities are eight times more likely to commit suicide, five times more likely to be sexually assaulted, two times more likely to be assaulted by staff, and 50 percent more likely to be attacked with a weapon.
  10. Although minorities make up only about one-third of the youth population, they account for about two-thirds of the juveniles committed to public facilities. Studies have shown that black youths are about twice as likely as white youths to be detained for the same offense, and that they are detained an average of two weeks longer than white youths for the same offenses.

Back to Top

Handling False Allegations of Child Abuse Dos & Don'ts

As public awareness of child abuse increases, more and more instances of possible abuse are being reported. Conscientious reporters are taking the necessary first steps to protect children. However, not all reports of abuse are substantiated. Sometimes, even when the reports are made in good faith, further investigation reveals that the accusations are not true. In yet other situations, false allegations are intentionally raised in order to harm the subject of the allegations, such as in a bitter divorce in which custody of the children is contested. If you find yourself the victim of false allegations, whether from a well-meaning source or an embittered spouse or ex-spouse, you need to take immediate action. The following tips, together with experienced legal counsel, can lead you in the right direction.

The Dos

Do attempt to prevent the possibility of false allegations by avoiding being with children without another adult present. Day care workers, scout leaders, coaches, and others who could be the target of false allegations can lessen the likelihood of those charges sticking by having another adult present who can corroborate that nothing inappropriate happened.

Do attempt to resolve custody disputes amicably in order to avoid the possibility of an angry spouse or former spouse using false allegations as a means of punishment or obtaining custody.

Do avoid engaging in any conduct that could be deemed inappropriate when dealing with children, such as making sexually suggestive comments, telling dirty jokes, roughhousing, or engaging in overly aggressive horseplay.

Do hire an experienced attorney if someone makes false accusations against you. Even if you trust that the truth will prevail, or that the accuser will calm down and retract the accusations, it is imperative that you consult with an attorney who knows the legal issues and system involved and can safeguard your interests.

Do educate yourself about the subject of false allegations of child abuse so that you have a greater understanding of the situation, you can protect yourself, and you can work as a partner with your attorney.

Do contact your attorney with questions and concerns, and keep him or her apprised of developments in your situation.

Do contact friends, neighbors, co-workers, and family members who may be willing to testify on your behalf by written affidavit or in court.

Do maintain your positive relationships with your children when the allegations arise out of a custody dispute. Remember, the children are not responsible for the false allegations and resulting turmoil. Even if they say the words that support the allegations, understand that false accusations can be planted in children's minds through no fault of their own.

Do appreciate that allegations of child abuse must be taken seriously and investigated. Even if you know that in your case the accusations are groundless, in many cases they are not, so in the interests of all children, further investigation is generally necessary.

The Don'ts

Don't abuse your children, or any other children, physically, emotionally, or sexually.

Don't put yourself in any unnecessary situations that could give rise to suspicion, such as accompanying children to the bathroom, helping them change clothes, or bathing them. If your job requires such activities, it is always best if another adult is present during all circumstances that could be wrongly interpreted.

Don't be passive if false accusations are raised. Take immediate action to protect yourself. Contact an attorney and discuss your situation.

Don't be afraid to ask your attorney questions during an initial consultation and throughout the progress of your case.

Don't admit to anything you did not do, even if it may seem like the simplest approach. A conviction for child abuse has long-lasting, far-reaching implications, and can have an adverse effect on child custody agreements, future employment, future relationships, and your future in general.

Don't lose your temper with the authorities involved in your case. As angry as the situation may make you, losing control could be used as evidence to support the allegations.

Don't give up. It may be the ugliest battle of your life, but overcoming and disproving false allegations of child abuse is without a doubt worth the effort.

Back to Top

Answers to Common Questions about DUI/DWI

Although it may have many names, including driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), drunk driving and drunken driving, operating a car after consuming or while using alcohol or drugs is a serious matter. As the name varies, so do the laws in each state concerning DUI/DWI. However, there is one constant: it can cause serious injuries or death and it is against the law. The following provides answers to some common questions that arise in situations involving DUI/DWI.

How serious is DUI/DWI?

DUI/DWI is a serious problem. Thousands of Americans are killed each year in DUI/DWI accidents. Although many of those accidents result in the death of the intoxicated party, a significant and unfortunate number involve the death of "innocent" parties who were in the wrong place at a time when someone chose to drive a car while impaired. DUI/DWI is dangerous both for those individuals who choose to operate a car under the influence and for those individuals who are on the road at the same time. In addition to the severe physical injuries that may result from a DUI/DWI accident, there are also serious emotional and mental scars that may never fully heal for either the offender or his or her victims.

Is it "safer" to drink beer, wine or hard liquor in excess?

Any type of alcohol is dangerous when consumed in excess. Different types of drinks contain different concentrations of alcohol or what may be called "proofs." The proof rating is two times the alcohol concentration. Therefore, 200 proof liquor has a 100 percent alcohol concentration. Most hard liquors have a higher alcohol concentration than most wines and most wines have a higher alcohol concentration than most beer, meaning that it may take fewer drinks containing hard liquor or fewer glasses of wine than beer to become intoxicated. However, the alcohol concentration of a drink is not everything. You also have to consider the size of the drink that you are consuming. Therefore, a shot glass of hard liquor, which is usually only about 1 1/2 ounces of alcohol, may end up having the same effect as one five-ounce glass of wine or one twelve-ounce beer.

Drinking any alcoholic beverage to excess is never a good idea. You may seriously injure yourself or others if you decide to operate a car. However, even if you decide not to drive, you may also suffer other physical injuries. Excessive alcohol consumption over a long period of time can cause damage to the kidneys, liver, heart or brain. Excessive use of alcohol within a short period of time can lead to death.

What is a blood-alcohol content?

Blood-alcohol content (BAC) or blood-alcohol level (BAL) is a measure of how much ethanol is in your blood. Ethanol in your blood is a byproduct of the broken-down alcohol that you consumed. BAC and BAL are scientifically measured by calculating the ratio of ethanol to blood within your system. Therefore, if you have a BAC of .15, you have .15 grams of ethanol per 210 liters of breath, which equals .15 grams of ethanol per 100 milliliters of blood. If your BAC or BAL is above .08 and you are operating a car or other vehicle (including some machinery), you are probably breaking the law in all US states.

  • You may still be charged with DUI/DWI even if your BAC or BAL is under .08

Do I have to take a breath-analyzer test?

A breath-analyzer test measures a person's BAC or BAL. The amount of ethanol that is in your system is the same as the amount of ethanol that is "on" your breath when you exhale. As a result, police are able to test your BAC or BAL by having you breathe into a breath analyzer. Whether you are required to take the test depends on the law of the state you are in at the time you are pulled over. Under the law in some states, if you refuse to submit to a breath-analyzer test or other similar test for measuring your BAC or BAL, such as a blood test, your license will automatically be suspended. If you are later found not to have been intoxicated or impaired, your license may still be suspended in some states as a result of your failure to cooperate.

Can I be charged with DUI/DWI for driving after taking drugs?

Yes, although the crime may have a different name. If you operate a car under the influence of drugs such as heroin, cocaine, marijuana or any other illegal substance, you can be charged with a crime. In addition, it is not only illegal drugs that can get you into trouble. Many prescription medications and some over-the-counter medications carry with them specific warnings that they may impair abilities and should not be used while operating any motor vehicles. Check the labels on all medications carefully. Do not get behind the wheel if you are taking any medications that are incompatible with safe driving.

What will happen if I have more than one DUI/DWI conviction?

The consequences of multiple DUI/DWI convictions depend upon the state in which you received the convictions. In most jurisdictions, there is a "step-up" method for handling multiple DUI/DWI convictions for the same person. In some states, a person will be required to pay a fine and perhaps serve a minimum term of imprisonment for a first conviction, in addition to having their license suspended. For a second offense, some states may increase the fines and imprisonment or term of suspension. Additional offenses may result in drivers license revocation, incarceration or the loss of driving privileges for life. Additionally, in some states, a judge may order that the offender participate in an alcohol or drug treatment and education program. Of course, if you seriously injure or kill another person while operating under the influence, you may face additional charges and civil lawsuits.

Are "alternative" penalties appropriate for DUI/DWI?

In many cases "alternative" penalties are allowed in DUI/DWI cases. A judge hearing your case may have discretion in deciding how you should be punished. In situations where you have seriously injured or killed another person, the judge may not have such discretion, but in first-time offenses or in less serious matters, a judge may be able to require you to perform community service, such as giving talks about the dangers of drunk driving. In other situations, a judge may require you to place a license plate on your vehicle or a mark on your drivers license that indicates that you have been convicted of DUI/DWI.

Should I get an attorney if I have been charged with DUI/DWI?

Although you are not required to have an attorney, it is advisable to retain a defense lawyer if you have been placed under arrest or charged with DUI/DWI. These laws are strictly enforced and an experienced DUI/DWI attorney can help protect your rights. Some states require that the police provide you with a list of local DUI/DWI defense attorneys. Your chances of successfully making defense arguments or finding mistakes that may have been made in your arrest are much greater if you have an attorney assisting you. If you are faced with a DUI/DWI charge, an attorney is your best bet for avoiding or reducing potential penalties or imprisonment.

Back to Top

Understanding Parole

After you have been arrested, if you are found guilty of a crime, you may have to serve time in prison or another detention facility. Your sentence may be cut short if you are released on parole, or you may be placed on parole after serving your full sentence. But what is parole? When might it be granted? The following primer answers those questions, and many more.

What is parole?

Parole is a conditional release from prison. In some cases, a prisoner may be released on parole only after they have served their full sentence. In other situations, a prisoner may receive an early release on parole. Parole allows a prisoner, or parolee, to leave prison and re-enter the community, subject to certain limitations and conditions. Parolees who break any of the terms of parole can be sent back to prison for the remainder of their sentence and face additional punishment.

Who is responsible for overseeing prisoners on parole?

The U.S. Parole Commission has jurisdiction over federal prisoners who are released on parole. For criminals serving time in state detention facilities, that particular state parole board has jurisdiction.

How does parole differ from probation?

Parole and probation are two separate things. Parole occurs when a prisoner is released from prison after having served either a portion or all of his or her sentence. Probation is an alternative to incarceration. A criminal who receives probation as a sentence will be able to remain a member of his or her community, without serving time in jail or prison, so long as he or she complies with the conditions set by the court. The conditions can include counseling or treatment, participating in community education or performing community service. If any conditions are not met, probation can be revoked, and the remainder of the sentence is served in jail or prison.

Is parole always an option?

No. In cases of particularly serious crimes, a prisoner may not be eligible for parole. The law of the state in which sentencing occurs will dictate whether a prisoner may obtain parole for a certain crime. For example, some states do not allow for repeat offenders or first-degree murderers, among others, to receive parole. If a prisoner receives a death sentence, he or she is not eligible for parole.

How do I get parole?

The specific steps that must be followed in order to obtain parole will vary from state to state. However, the process usually starts with a request or application for parole. In some states, prisoners are required to make the request themselves. In other states, a state parole board may investigate the possibility of parole after a set percentage of the sentence has been served. Once the request or application is made, a hearing will be held. Each state has detailed laws regarding how these hearings are to be conducted and what factors may be considered. Following the hearing, the parole board makes a decision as to whether the prisoner should be released on parole.

What factors are considered in determining whether parole will be granted?

Any number of factors will be considered by the parole board in determining whether a prisoner should be released on parole. These factors may include the prisoner's age, mental status, education and training, employment opportunities, and remorse for having committed the offense. The parole board will also consider the prisoner's behavior and attitude while in prison, participation in prison-education and prison-therapy programs, and the severity of the crime that was committed.

Can a prisoner have more than one parole hearing?

Yes. If a prisoner requests or is given a parole hearing but is denied parole, he or she may try again, in the future, to obtain parole by going through the same process.

Does a prisoner have to accept parole when it is granted?

No. Parole will have many different conditions attached to it, usually put into place by the parole board and approved by the trial court that initially imposed the sentence. A prisoner must be informed of the conditions of their release before being placed on parole. If the prisoner does not like the conditions, or has doubts about his or her ability to abide by them, he or she is free to reject the offer of parole.

How long does parole last?

In most cases, the length of parole depends upon the crime that was committed and the behavior of the criminal. Typically, parole will not last longer than five years. However, parole can last for the rest of a prisoner's life.

What type of conditions might be imposed on parole?

The conditions of parole that may be imposed are controlled by state law and also by the circumstances of the particular case. A parolee might be required to remain in a specific geographical area, or he or she might be required to obtain a job, receive treatment, or submit to counseling or periodic drug testing. Parolees are, almost without exception, prohibited from owning firearms. In all cases, a parolee will be required to meet with a parole officer. Usually, these meetings will be on a pre-determined schedule. In some cases, parolees might have to meet their parole officer once a week. In other situations, they may only have to meet with them once a month. The frequency of meetings with a parole officer depends upon the type of crime that was committed and the risk the parolee poses to the general health and safety of the community.

What happens if the conditions of parole are violated?

If the terms of parole are broken, the punishments vary. A parolee who is late to a meeting with his or her parole officer, for example, may be given a verbal warning. If a more serious violation occurs, such as where the parolee fails a drug test, he or she may be sent back to prison. If a parolee commits a new crime while on parole, he or she may be sent back to prison and may also face trial (and a new sentence) for the new crime.

How is a prisoner's parole revoked?

Just as the process of granting parole varies from state to state, the process of revoking parole is also controlled by the laws of the particular state in question. Usually, parolees are entitled to a hearing to determine whether they have the right to remain on parole or whether they should be sent back to prison. If the parolee does not like the outcome of the hearing, he or she is generally entitled to appeal the determination.

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.