If you're facing charges, it's important to understand what to expect. By learning some of the basics of criminal defense, you'll give yourself the best possible chance of a desirable outcome.
Civil vs. criminal law
Free criminal law information for individuals and small businesses written by lawyers but in easy to understand legal terms. FreeAdvice.com includes legal forms, state laws, forums, books, FreeAdvice Answers, an Attorney Directory, and more. At the Reid Law Firm, our criminal defense lawyer in Dothan has nearly a decade of experience in this complex practice area. Call us today for a free initial consultation and learn more about how we can help you.
There are two types of laws in the United States, civil and criminal. In both cases, there is a plaintiff who initiates the complaint, and a defendant who defends against the complaint. Some complaints may have both criminal and civil components.
In a civil case, the plaintiff, or wronged party, is obligated to show evidence demonstrating that, more likely than not, there was a violation of civil law.While some civil cases are decided by a jury, most are decided by a judge.
Potential penalties in a civil case may include monetary damages or orders from the court to do or stop doing something.
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In a criminal case, the plaintiff is the government, because crimes are viewed as offenses against the state. The defendant is the person accused of committing the crime.
In a criminal case, the prosecution must prove guilt beyond a reasonable doubt, which is a significantly higher burden of proof than in civil cases. Criminal cases are often decided by juries, and penalties may include monetary damages or time in jail.
What are some common criminal defense strategies?
In a criminal case, the defendant is guaranteed access to a public defender if they cannot afford one, but a civil defendant must either pay for their own defense attorney or represent themselves.
A criminal defense attorney will decide on the best approach based on the specifics of the case. Common criminal defense strategies include:
- Arguing that the facts presented by the prosecution are untrue or fail to rise to the burden of proof
- Presenting an alibi which demonstrates the defendant could not have committed the crime because of where they were or what they were doing at the time it was committed
- Arguing that police coerced the defendant into committing the criminal act
- Arguing that the prosecution did not bring charges within the statute of limitations, or amount of time allowed by law, so the charges must be dropped
Federal vs. state crimes
For a case to be tried in federal court, it must involve the constitution or a law passed by congress. It must also fall within a relatively narrow jurisdiction, like immigration or copyright lawsuits.
Most cases involving private citizens are tried in state court, since state courts have broader jurisdiction. In many cases, both state and federal laws have been violated, so the plaintiff may choose whether to bring the case before a state or federal court.
Felony vs. misdemeanor crimes
While criminal offenses vary greatly in terms of severity, felony crimes are more serious than misdemeanors. In general, misdemeanors carry potential penalties of monetary fines and/or no more than 1 year in county jail, while the penalty for a felony may be a year or longer in state or federal prison. Non-violent crimes like shoplifting may be prosecuted as misdemeanors, while violent crimes like robbery or arson are felonies.
If you're facing civil or criminal charges, hiring a skilled criminal defense attorney is the best way to ensure you'll be well represented in court. Don't be afraid to ask questions and make sure you understand your rights throughout the criminal defense process.
A criminal defense lawyer is a lawyer (mostly barristers) specializing in the defense of individuals and companies charged with criminal activity. Some criminal defense lawyers are privately retained, while others are employed by the various jurisdictions with criminal courts for appointment to represent indigent persons; the latter are generally called public defenders. The terminology is imprecise because each jurisdiction may have different practices with various levels of input from state and federal law or consent decrees. Some jurisdictions use a rotating system of appointments, with judges appointing a private practice attorney or firm for each case.
United States[edit]
In the United States, criminal defense lawyers deal with the issues surrounding an arrest , a criminal investigation, criminal charges, sentencing, appeals, and post-trial issues. Often an attorney will specialize in a niche within criminal defense, such as drug defense or DUI defense.[1] They could work for the local, state, or federal government or they could work for private law firms.[2]
An arrest simply means a police officer, federal agent, or judge believes probable cause exists that a person committed a crime. Since an arrest is usually made by law enforcement, the arrest often is for a criminal charge that has not been levied or verified by an attorney or judge. Criminal defense lawyers also deal with the substantive issues of the crimes with which his or her clients are charged. Criminal defense lawyers may also help clients before charges have been filed by a prosecuting attorney. This is done when someone believes he or she is being investigated, or is arrested.
The accused may hire a criminal defense lawyer to help with counsel and representation dealing with police or other investigators, perform his or her own investigation, and at times present exculpatory evidence that negates potential charges by the prosecutor. Criminal defense lawyers in the United States who are employed by governmental entities such as counties, state governments, and the federal government are often referred to as public defenders or court-appointed attorneys.
A considerable aspect of this work requires the US criminal defense lawyer to have a clear understanding of the United States Constitution. Specifically, the Fourth Amendment protects against unlawful searches and seizures, while the Fifth and Sixth Amendments govern the right to remain silent so one does not become a witness against himself.[3][4] All of the Amendments to the United States Constitution are guaranteed to the criminal accused against the states via the Fourteenth Amendment. Thus, a criminal defense lawyer must understand each of these rights. Initial work on any criminal case involves review of the charges and the claimed facts, and analysis of constitutional violations, the prima facie burden of the prosecution, defenses, and affirmative defenses; as well as potential sentence and sentencing issues. Early stages of a criminal case may involve a grand jury or preliminary hearing to determine if there exists probable cause for the case to continue. A violation of the Fourth or Fifth Amendment, or other illegally obtained evidence could result in evidence being inadmissible at trial. Accordingly, a criminal defense lawyer often spends a considerable amount of time reviewing all documentation to determine if the case can be won on constitutional grounds due to illegal conduct by the government.
If there are no constitutional violations, much of the work of a criminal defense attorney then turns to trial preparation. Any proposed settlement agreement must be compared to the best judgment about the outcome after trial. A criminal defense lawyer will usually discuss potential plea bargains with the prosecuting attorney, as an alternative to exercising the defendant's trial right and other rights. Plea agreements, when made, can be characterized as either charge agreements (often involving a less serious charge), sentencing agreements (involving a lesser sentence), or both.
Criminal defense lawyers are typically defending people with misdemeanor or felony charges. A misdemeanor generally refers to criminal activity that is punishable by one year or less in the local jail. A felony typically refers to criminal activity that is punishable by more than one year in the prison system. Many states have 'wobblers', which refers to criminal activity that is charged as a felony, but has a possibility of being reduced to a misdemeanor. In matters involving a wobbler, many times a reputable lawyer can either have the felony reduced to a misdemeanor or in the alternative have the felony appear to be a misdemeanor so that the felony can be reduced to a misdemeanor at a later date, which may be good strategy since the typical felony cannot be expunged.
The initial process of becoming a criminal defense attorney is similar to becoming a lawyer practicing in any other legal practice area. To become a criminal defense lawyer, a person will typically complete their undergraduate degree, and then attend and graduate from a law school. After graduating law school and passing the bar examination for that particular state or jurisdiction, the new lawyer will be sworn in as a member of that bar and can then begin practicing in the field of criminal law. However, many reputable criminal defense attorneys spend some time after being admitted to the bar working under the mentor-ship of an experienced attorney, often in a prosecutors office or a public defenders office.
References[edit]
- ^Lawrence Taylor, Steven Oberman, Drunk Driving Defense
- ^Barnes, Harrison. 'What Does It Mean To Work As A Criminal Law Attorney'. Law Crossing. Retrieved 2 March 2019.
- ^Steven M. Salky, Paul B. Hynes (Jr.), The Privilege of Silence: Fifth Amendment Protections Against Self-incrimination
- ^Cultural Issues in Criminal Defense
External links[edit]
- Sida Liu, Terence C. Halliday, Criminal Defense in China: The Politics of Lawyers at Work (2016)
- Jill Paperno, Representing the Accused: A Practical Guide to Criminal Defense (2012)
- William L. Myers, A Criminal Defense (2017)
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