Criminal Law

Under criminal law proceedings, a state prosecutor files charges, a criminal defense attorney argues the defendant's case, and the judge or jury decides the case. If found guilty, the penalty may involve fines, jail time, or both. Federal criminal law is limited, and most crimes and punishments are determined by state legislature. Consulting with a local criminal defense attorney will give you the insight into state criminal law you need to ensure you have a fair trial.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 9, 2021

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  • Each state legislature locally defines crimes, the different levels of criminal charges, and metes out different punishments for different criminal offenses
  • Aggravated crimes are more severe and come with harsher punishments
  • Criminal defense attorneys have intimate experience with criminal law, case law, and statutory offenses

Criminal law exists to mete out punishment to people who commit crimes. A crime is an act or failure to act that contravenes a law that prohibits such action or failure to act. The criminal law definition refers to that body of jurisprudence derived from statutes, procedures, and case law.

In the U.S., each state legislature defines crimes within its particular jurisdiction and combines those laws and procedures into a criminal code. The U.S. federal government also has its own criminal code and code of federal criminal procedure.

Criminal law in the U.S. has many facets. Keep reading to find answers to the most common questions about criminal law, including the degrees of murder and the difference between assault vs. battery. Take advantage of our free legal resources to help you understand what happens during a criminal trial and how to find affordable criminal defense attorneys near you.

Find a local criminal defense lawyer now with our free tool above. Enter your ZIP code to find an attorney experienced in criminal law who can answer your specific questions.

What is criminal law?

A criminal code protects society as a whole and dispenses justice to the victims, eliminating the need for conflict to descend into feuds between families or clans. In a criminal action, a state or federal government agency brings a charge against the defendant for violating the laws of the jurisdiction. However, the federal government’s ability to proscribe criminal activity remains limited. The designation of crimes and punishments generally rests within the purview of individual states’ laws.

Typically, under criminal law proceedings, a prosecutor files charges against a defendant, the criminal defense attorney argues the defendant’s case, and the judge or jury decides the accused’s fate. If found guilty, the penalty may involve a stiff fine or jail time, or both.

Criminal defense attorneys, and criminal law lawyers in general, operate in a complex arena where common law principles, statutory offenses, and case laws create an array of procedural rules that govern criminal trial proceedings in and out of the courtroom.

When it comes to proving a crime occurred, the prosecution must provide evidence that satisfies these three elements:

  1. That a criminal act occurred (actus reus)
  2. That “but-for the accused’s act,” the crime would not occur
  3. That the accused was of sound mind at the time of the crime and capable of forming the intent to commit the act (mens rea)

In order to find a person guilty of a crime, the person’s actions and mental state must satisfy each and every element of the crime. There are several different types of criminal defenses, including:

  • The prosecutor’s failure to prove the elements of the case
  • A mistake of law or a mistake of facts of the case
  • Justification defense, such as self-defense, defense of property, defense of others, and the necessary choice between “two evils”

In certain circumstances, a defendant may also offer excuses, or partial defenses, for what looks like criminal behavior. Excuses range from intoxication (only goes to having the required state of mind) to duress via force or threat of force.

In addition to intoxication, insanity is an affirmative defense. To avoid prison time, the defendant pleads they were unable to form the required state of mind due to mental illness. This is not the same as proving a diagnosis, however. To avoid responsibility due to insanity in a criminal case, the general requirement is a demonstration that the accused was incapable of knowing what they were doing or of knowing that it was wrong to do so.

What is the difference between civil and criminal law?

While criminal law concerns individuals who break serious state or federal laws, civil law seeks remedies from someone for injuries or damages that another person suffered at their hands. These remedies are usually financial in nature to cover costs of repair or recovery, although sometimes the remedy is equitable in nature.

Keep in mind that, through criminal court proceedings, the state seeks punishment for the crime, and cases are often pursued by state district attorneys or federal lawyers, unlike civil suits, which are initiated, defended, and prosecuted by individuals, usually the victims or the victims’ families.

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What are the different levels of charges in criminal law?

When criminal lawyers talk about crime levels, they use the term “degrees.” A charge’s degree relates to the defendant’s intent in carrying out the crime or the amount of property destroyed or stolen in the criminal act. For example, in some jurisdictions, first-degree larceny (or theft) applies when stolen property exceeds $1 million in value. Second-degree larceny is $50,000 in value.

A criminal who hides and waits or stalks a particular individual may see an increase in the penalty for the charges due to the aggravated circumstances. Such behavior may result in more serious sentencing, including the death penalty.

What does it mean when a crime is aggravated?

An aggravated crime means that additional components of the defendant’s actions made the crime more serious. One example is an assault with a deadly weapon. The defendant does not have to actually use the deadly weapon for the aggravated charge to apply. When the prosecutor charges a defendant with an aggravated offense, the penalties that attach to that crime are harsher.

Another well-known aggravating factor is when an offense is considered a hate crime. If the motivation for a crime can be shown to be related to the victims race, gender, sexual preference, or certain other characteristics, the punishment can be more severe than it otherwise might be.

What is aggravated robbery?

Aggravated robbery means the perpetrator tries to take something of value from a person while using force or threatening to use force. It may also mean the robber carried a weapon or a striking implement of some kind.

Armed robbery, on the other hand, refers to a robber brandishing a deadly weapon, such as a gun, to force the victim to comply with demands to hand over their personal property.

What’s the difference between assault vs. battery?

The key difference between assault vs. battery is bodily harm.

An assault charge will lie against a person who threatens to cause bodily injury to the victim, and the victim reasonably believes he faces actual physical harm. On the other hand, battery charges will only apply if the act actually causes the victim bodily harm, not just the threat of bodily harm.

As an example, a robber threatening a victim with a toy gun in order to persuade him to hand over personal property is an assault. A robber who punches the victim and then takes their personal property after the injury faces charges of battery.

What’s the difference between murder and manslaughter?

Most people recognize the different levels of murder charges in criminal law, but most state laws recognize three degrees:

  • First-degree murder is a pre-planned act with intentional malice
  • Second-degree murder is unpremeditated but the accused intended to inflict grievous bodily harm on the victim.
  • Third-degree murder applies when the murder does not qualify for first or second-degree charges and definitions can vary widely by state

State laws will also vary on the minutae the differentiates first-degree murder from second-degree, but all laws recognize manslaughter as the killing of a human being without malice aforethought. Where first-degree murder means the accused intentionally planned the crime before carrying it out, manslaughter charges apply when the accused had no intention of killing anyone.

There are several types of manslaughter:

  • Involuntary manslaughter
  • Voluntary manslaughter
  • Vehicular homicide

Involuntary manslaughter means an unintentional death that occurs as the result of criminal negligence or reckless behavior. It may also refer to an unintentional killing of a human being during a misdemeanor, a crime that is not a felony.

Voluntary manslaughter often means that a first-degree murder charge was reduced due to a finding of extenuating circumstances, such as “heat of passion,” or the accused exhibited a “diminished mental capacity” to form the intent required to commit first-degree murder.

Vehicular homicide is a type of negligent homicide when a person had no intent to kill the victim or cause grievous bodily harm. Rather, the person operated a vehicle with such gross negligence that a person’s death ensued from the negligence. Vehicular homicide may also mean operating a vehicle with gross negligence in the commission of a misdemeanor, resulting in the victim’s death.

If the death occurred during a felony, the driver may face an increase in the degree of the charge to felony murder. Felony murder means the accused intended to commit a dangerous felony and a person died during that crime, even if the accused was merely an accomplice and not the actual killer.

What are the punishments for murder?

Punishments for murder charges vary by state, but every state imposes mandatory prison time for convicted murderers. Defendants typically face imprisonment of 25 years to life, with first-degree charges often facing life in prison without a chance for parole.

Second-degree murder sentences are not legally allowed to exceed 40 years in most states, and manslaughter or negligent homicide charges may only face one to 20 years in prison.

In 2021, the death penalty is a potential punishment for murder in 25 states, the federal government, and the U.S. military. The District of Columbia and 22 other states abolished the death penalty while California, Oregon, and Pennsylvania have issued moratoriums on the death penalty.

Common Defenses Against Murder Charges

A charge of murder does not necessarily mean an open-and-shut case. There are many defenses against murder charges and many defense attorneys whose experience with criminal law can help build your case.

Some of the common defenses to murder include:

  • Justifiable homicide or self-defense: refers to defending oneself against a life-threatening attack from the person killed
  • Insanity: refers to a mental disorder or disrupted state of mind at the time of the crime that must be proven by the defense, and the accused is typically sent to a mental hospital in lieu of prison
  • The heat of passion: refers to an act of monstrous provocation where the accused reacted in a surge of anger, sadness, or resentment
  • Diminished capacity: refers to either a physical impairment, such as head trauma, intoxication, or mental incapacity that impairs the accused’s ability to form the specific intent or malice aforethought

Diminished capacity defenses can also consider a minor’s age as a mitigating factor so that the minor should face a lesser charge or acquittal. The theory is that adolescents (or children) are not psychologically equipped to foresee the consequences of their actions.

Diminished capacity defenses will not apply to intoxicated drivers who cause a person’s death due to their negligent or reckless manner behind the wheel. The intoxicated driver will most likely face a charge of manslaughter instead.

What happens during a criminal trial?

Criminal trials are complex operations. They consist of many moving parts and each of them plays a critical role in determining the guilt or innocence of the defendant.

What are the typical steps in a criminal proceeding? Criminal trials include the following segments:

  • Voir dire
  • Prosecutor’s opening statement
  • Defense attorney’s opening statement
  • Prosecutor presents evidence and witnesses
  • Motion for a directed verdict
  • Defense presents evidence and witnesses
  • Closing arguments
  • Jury charge
  • Jury deliberations (jury reviews the evidence and witness statements and decides on the verdict)
  • Post-trial motions

Very few criminal cases actually make it to trial. The ones that do not make it to trial see the defendant enter into plea agreements with the prosecution. A plea agreement means the defendant agrees to plead guilty to a lesser charge in order to avoid trial. If the defendant takes a no contest plea agreement, they are not admitting guilt but aren’t fighting the charges against them. Plea agreements keep the trial docket moving while providing a level of justice for the victim.

If you’re curious about what happens during a criminal trial, scroll through some commonly asked questions about criminal law and criminal trials below.

What is voir dire?

All trials in the federal court system and many state courts allow defendants to have a trial by jury. The prosecutor and defense attorneys select the members of the jury from the jurisdiction’s jury pool, known as the venire.

The name for the jury selection process is voir dire and refers to the questioning of potential jurors by the attorneys on both sides of the case.

The term voir dire means “speak the truth.” It is an apt name for the process because telling the truth is integral to the attorneys’ questions about the case. Criminal attorneys may ask that the judge dismiss potential jurors who exhibit bias or conflicts that show they cannot remain fair and impartial. This is called a dismissal “for cause.”

Attorneys also have what are known as peremptory challenges, which means they can object to any juror without giving a reason. The law now limits the number of peremptory challenges due to the fact that many of these objections were based on a juror’s race, gender, or ethnic background and unrelated to the case.

What is a motion for a directed verdict?

A motion for a directed verdict is a request to the judge before the case goes to the jury. In a criminal trial, the motion asks the judge to stop the trial because the prosecutor has not met the burden of proof.

In practical terms, the motion for a directed verdict means that the defense attorneys want the judge to order an acquittal for the defendant.

What is a jury charge?

A jury charge is given before the judge submits the case to the jury. The judge gives the jury all the information they require to find a verdict in the case. The jury charge contains special instructions, such as orders to disregard the defendant’s past trials and to decide the case at hand based solely on the evidence provided at trial.

The judge may also give the jury charge at the beginning of the trial or at times during the trial if they need additional instructions.

What are post-trial motions?

After the jury convicts a defendant, there are several motions on which a defense attorney may ask the judge to rule:

  • Motion for a new trial: defendant wants the judge to set aside the verdict and grant a new trial
  • Motion for judgment of acquittal: a request for the judge to set aside the verdict and let the defendant go free
  • Motion to vacate, set aside, or correct a sentence: defense counsel may request this motion if there was an error in the sentencing

Are there rules the jury must follow during their deliberations?

Yes. As a general rule, jurors are not allowed to bring items such as outside reading materials into the jury deliberation room. Judges have broad discretion in this area and some ban jurors from bringing in cell phones.

Jurors are allowed to ask the judge for documents and other items entered into evidence during the trial and may request copies of the jury instructions and notes taken during the trial, but the judge may refuse materials if they are seen as prejudicial.

Jurors are also required to deliberate until they come to a verdict. Jury deliberations do not begin until all jurors are in the juror room, and they have to stop if a juror leaves the room. They are not supposed to compromise in order to reach a verdict, but they can change their minds if they realize they are wrong.

The jury deliberates under the supervision of the court officer who stands guard outside the jury room. If the jury is allowed to go home between courtroom sessions, the judge may instruct them not to discuss the case with anyone.

In high-profile cases or where publicity is widespread or out of control, the judge may sequester the jury. A sequestered jury cannot go home once they begin deliberations. During sequestration, the jurors stay at a hotel near the courthouse, and they eat their meals together while they deliberate the case.

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Do you need to hire a criminal defense lawyer?

The sixth amendment to the U.S. Constitution guarantees a defendant in a criminal trial the right to representation by legal counsel. The right to counsel attaches as soon as a criminal case is brought against you, and you may choose to hire your own or take on a free public defender.

The Supreme Court has held that a criminal defendant has the right to either defend themselves or hire an attorney of their choice unless that attorney exhibits a conflict of interest. If you have experience with criminal law, you may be able to represent yourself. However, hiring a criminal defense attorney can help you navigate the labyrinth of criminal law procedures, the arcane evidentiary trial rules, and the rules of local courtrooms to ensure you have a fair trial.

Find a defense attorney near you with our free legal tool below. Enter your ZIP code to consult with a lawyer experienced in criminal law.

A Brief History of Criminal Law

Criminal codes date back 4,000 years or more to the Sumerian culture. The Sumerians developed a brutal criminal code which the Romans then used as a model for their own criminal laws. Much of modern U.S. criminal law was handed-down from the Roman perspective, which may explain the country’s continued reliance on the death penalty in a majority of states.

In the U.S., common law took root slowly.  As Britain became the victor among various colonial occupiers, British Common Law became the standard in the British colonies, including America.

Naturally, the U.S. federal statutes often encompass crimes that historically formed part of British Common Law. However, there is no common law in mordern federal jurisprudence. Statutes make up the federal rule of law and modern criminal cases arise solely as a breach of those federal statutes.

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