Question 1

What are the different crimes that people can commit?

Accepted Answer

The distinguishing feature of criminal law is the element of punishment. The purpose of criminal law is to punish wrongdoers. If someone is accused of a crime and subsequently convicted of that crime, then they are to be punished, That is dramatically different than the purpose of civil law which is supposed to compensate someone for an injury suffered or to undo a wrong that has been committed. These are some of the major crimes that people can commit: Murder There are different degrees of murder. The premeditated, willful, and deliberate killing of another is murder one or capital murder. In most jurisdictions, the person who kills while attempting to inflict serious bodily injury on another has shown sufficient malice to be guilty of murder. In those jurisdictions where murder is divided into different degrees, this type of murder is generally referred to as murder in the second degree. What principally distin­guishes murder in the first degree from murder in the second degree is the premeditation that is part of the murder one offense. Felony murder arises where any death results during the com­mission of a felony. A felony is a crime for which a person can be imprisoned for more than a year. Many jurisdictions make distinctions as to whether felony murder will be murder one or murder two depending upon the type of felony that is being committed. Personal Crimes and Victimless Crimes Kidnapping is the unlawful carrying away of a person typically for purposes of obtaining a ransom. Robbery is the theft of property from the control of another. It is to be distinguished from burglary , which involves an unlawful entry into a premises for the purpose of obtaining property or committing some other crime. Rape is forc­ible sexual intercourse with another. There are a number of so-called victimless crimes. Some people take issue with the use of the term victimless on the notion that all crimes involve a vic­tim, whether it be the perpetrator or someone else. The crimes of prostitution, drug abuse, and obscenity are sometimes called victimless crimes. Property Crimes There also several crimes that are classified as crimes against property. Larceny is a property crime that involves the taking and carrying away of the valuable personal property of another with the intent to permanently deprive the person of that property. Larceny differs from robbery in that the property is not under the immediate control of the victim. Embezzlement is a property crime that is defined as the fraudu­lent conversion of the property of another by a person who has lawful possession of the property. If an employee removes money from the cash drawer and converts that money to his or her own personal use, then that person has committed embezzlement. Embezzlement normally involves someone who is in a position of trust and has access to the money or property of another. False pretenses is also a property crime. False pretenses is defined as obtaining title to property by knowingly or recklessly making a false representation of a presently existing fact of mon­etary significance that is intended to and does defraud the victim. False pretenses is very much like the civil claim of fraud. Forgery is another property crime. The most common instru­ments involved in forgery are checks. If you have insufficient funds in your banking account and write a check on that bank account, it is not forgery. The check is genuine. Forgery is the false making or altering of a legally significant instrument (for instance, a check) with the intent to defraud. Uttering is related to forgery. Uttering consists of negotiating or attempting to negotiate an instrument that is known to be false. This is very similar to simply passing a bad check. If you write a check on your own account when you know that there are not suffi­cient funds in the account, that, however, is not uttering but simply passing a bad check. The term uttering comes from the fact that words are uttered in presenting that document for negotiation. Receiving stolen goods is another property crime. To be guilty of receiving stolen goods, the receiver must know or believe the goods were stolen. Extortion is a property crime that involves making threats for the purpose of obtaining money or property. If someone threat­ens to expose you as a philanderer unless you give him or her $1,000, that may be extortion. Burglary is another property crime. Burglary is breaking and entering the structure of another with the intent of committing a crime. Normally the crime that is intended to be committed is theft or larceny-removing something from the premises. There are a multitude of other property crimes.

Question 2

What are defenses to crimes?

Accepted Answer

There are several defenses that can be raised in a criminal case. The defenses listed here are a sampling of those that can be raised. Insanity One of the more newsworthy defenses is that of insanity. Different states have adopted different rules as to how insanity is to be determined. Some states adopt a simple test known as the M'Naghten rule, which is simply a determination of whether the perpetrator was able to distinguish right from wrong. Other states adopt the irre­sistible impulse test that may apply when a defendant knew he or she was doing wrong, but the status of his or her mind prevented him or her from controlling his or her conduct he or she was overtaken by an irresistible impulse to engage in that behavior. The District of Columbia adopted the Durham test several years ago. It provides that an accused is not criminally responsible if his or her unlawful act was the product of mental disease or mental defect. These types of insanity defenses are generally the subject of a good deal of controversy and normally involve expert testimony from psychiatrists or other mental health professionals. Intoxication Another defense that can be raised is intoxication. If a crime requires specific intent, then a person who is intoxicated may be incapable of forming that specific intent. Coercion Coercion arises when there is duress. The bank teller who turns over the bank's money to the robber is acting under duress and therefore is not guilty of larceny in removing the money from the drawer. He or she is coerced in releasing the money. Necessity A woman who is threatened with sexual assault, and who then breaks down a neighbor's front door to seek refuge is not guilty of burglary because her conduct is governed by the defense of necessity. She needed to find safety. Entrapment Entrapment is a much more difficult defense, The purpose of the entrapment defense is to prevent the govern­ment from manufacturing a crime. An undercover police officer who offers to purchase narcotics from someone who he or she believes to be a pusher is not guilty of entrapment. However, an undercover police officer who applies immense pressure to a suspect to sell him or her narcotics by establishing a friendship with him or her and then playing on that friendship to overcome that person's unwillingness to sell narcotics probably would be guilty of entrapment. Vagueness Another defense that may be raised to some criminal violations is that of vagueness. The U.S. Constitution precludes punishing a person under a statute that is too vague to be understood. A statute should be sufficiently clear that a reasonable person could determine what conduct is forbidden, and the statute should be sufficiently clear as to prevent arbitrary enforcement by the police. Loitering statutes over the years have been subject to tests for vagueness. For example, if they preclude any person from being on a public street at any time, then they may be subject to constitutional challenges for vagueness. Self-Defense The ultimate defense to a crime against a person is self-defense. As a general rule, a person may use whatever force is reasonably necessary to prevent immediate and unlawful harm to him or herself. Some jurisdictions have adopted the retreat rule that requires a person who can safely retreat to do so before using deadly force. In general, the defense of self·defense permits a person to employ reasonable, non-deadly force to resist an unlawful arrest. However, as a practical matter, resisting an unlawful arrest is a risky maneuver because it could result in worse physical harm to the accused. Protection of Property A related defense in property crimes is protection of property. As a general rule, a person can use whatever force, short of deadly force, that reasonably appears to be necessary to protect property.

Question 3

Do the police need a warrant to search or arrest?

Accepted Answer

There are two different types of warrants that may be issued: arrest warrants - an order issued by a judge or magistrate authorizing the arrest of a particular person for a particular crime; and search warrants - an order issued by a judge or magistrate authorizing the police to conduct a search of a specific premises looking for specific objects. The police do not always need to have a search warrant before conducting a search of a premises, but it is generally preferred that they do, especially if time permits. In some circumstances, however} time does not permit the police to go to the local courthouse, find a judge who has time to review the situ­ation, and obtain a search warrant. In those types of emergency circumstances-when evidence is about to be destroyed or when the crime is in progress-the police may enter the premises and conduct a search without a warrant. If a search warrant has been issued, then the warrant may actually indicate when the search is to be conducted. Typically, when the search warrant is to be served and executed is a matter of discretion for the police. Once the police hove arrived at the premises, they are expected to announce their entry. However, if they have some reasonable cause to fear that evidence is being destroyed or that the police themselves may be in danger as a result of announcing their presence, then the police may enter without notice. Once the police have entered the premises, anyone in the premises is detained pending the completion of that search. If illegal materials or the items that are sought are found in the premises, and if there is probable cause to believe that the persons on the premises have something to do with the crime at issue, then they may be arrested and charged with a criminal violation. Sometimes the police may request a citizen to consent to a search either of their person or of their premises, Nobody hos to give such consent. If a person does consent to the search of his or her physical person or his or her home, it is considered to be a consensual search and the police do not need a warrant. Police sometimes are called upon to utilize various types of surveillance techniques, consisting of wiretapping and electronic eavesdropping. That type of surveillance is controlled by specific state or federal statutes and as a general rule a warrant is neces­sary before the police can engage in that type of activity.

Question 4

How do you deal with bail?

Accepted Answer

Bail is typically set by a magistrate or a judge who considers the seriousness of the offense and the likelihood of the defen­dant fleeing the jurisdiction, and then establishes a monetary amount that must be paid to secure the defendant's appearance at all subsequent court hearings. Bail can be paid in a cash amount or may be paid in the form of security against a piece of real estate. More often, it is paid by the posting of a bond written by a bail bondsman. A bond issued by a bail bondsman is a type of insurance policy with the court as the beneficiary of that policy. The defendant who obtains the bond from the bail bondsman pays a premium for that bond, which normally is a certain percent­age of the face amount of the bond. If the defendant does not appear at subsequent court proceedings, then the bondsman has to pay that bond amount to the court. The bondsman then will frequently use a bounty hunter to go out and find that defendant and return him or her to the court so that the bondsman can redeem (get its money back) its bond. The Eighth Amendment provides that excessive bail shall not be required. That is a rather loose standard and indeed the amount of bail that will be set by the court is a very subjective matter.

Question 5

What happens in the first court appearance?

Accepted Answer

Early in the course of a criminal proceeding, the defendant will be brought into court and the charges brought against him or her by the government will be formally read. The defendant will be asked by the court whether he or she pleads guilty or not guilty to the charges. At that stage of the proceeding, the defendant is expected to have an attorney unless he or she has waived his or her right to have an attorney. If the defendant cannot afford to have an attorney and meets the local guidelines for the appointment of counsel, then the court will appoint an attorney to represent him or her in that criminal case.

Question 6

What is the difference between a felony and a misdemeanor?

Accepted Answer

Criminal offenses can be divided into two general categories: ­felonies -- a crime for which a person can be imprisoned for more than a year; and misdemeanors -- an offense for which a person can be imprisoned for up to a year The criminal process regarding misdemeanors may differ dramatically from the criminal process as it applies to felonies. The defendant charged with a felony is entitled to greater protections and as such the procedure in regard to a felony case may be considerably more prolonged than that involving a misdemeanor. It is not at all unusual that for a misdemeanor charge the defendant simply appears in court on one occasion, and after being advised of his or her right to have an attorney, the case is tried on that one occasion. A felony charge may result, however, in several court appearances, first a hearing in regard to the setting of bond, then an arraignment, then a preliminary hearing, then an appearance for the setting of a trial date, then the appearance for any pretrial motions, and then, finally the appearance for trial.

Question 7

What are the limits of the police to search me or my home?

Accepted Answer

The Fourth Amendment of the Constitution says that you have a right to be free of unreasonable police searches and seizures. The police cannot stop you while you are walking down the street unless they have some reasonable justification for believing that you either have committed a criminal offense or are about to commit a criminal offense. If a police officer sees you walking down the street engaging in some unusual behavior, stops you to question you about this, and sees a conspicuous bulge under your coat that looks like it may be a pistol, then he or she may detain you and pat you down to determine if it is in fact a pistol. If it is a pistol and you are not allowed to be carrying such a concealed weapon, then you may be arrested. A police officer, however, may not stop you and detain you while you walk down the street simply because you look suspicious or unsavory. Instead, he or she must have some reason that can be articulated that would cause a reasonable person to conclude that you have committed some criminal offense or are about to commit a criminal offense. The police cannot randomly come into your home and conduct a search. Generally, the police need to have a search warrant to conduct a search of the premises. In certain emergency circumstances, they may be allowed to come into the premises and con­duct a search. This is only allowed if it is necessary in order to accomplish an arrest of a person whom they believe has committed a crime or if it is necessary to prevent the destruction of evidence. If time permits, however, the police are required to obtain a warrant issued by a judge or magistrate authorizing the search and entry into a home. Once a person has been arrested, the arresting officer is allowed to search that person and to search the area within arm's reach of that person. Anything that is found as a result of that type of search may be used against the defendant. Likewise, if there is some illegal substance or item that is within plain view of the officer while he or she is lawfully in the premises, then that substance or item may be seized and used against the defendant. Vehicle searches are frequently the subject of controversy. When a motor vehicle operator is arrested and taken to the police station, his or her vehicle is typically impounded. The police are then authorized to conduct an inventory search of the vehicle. Since the vehicle has come into their possession, it is in the interest of the police to determine whether there are any items of value in that vehicle, so that they are not later charged with a misappropriation of those items. They typically will conduct an inventory search of the vehicle and if there is some illegal substance or material found in the vehicle, it could be the basis of a criminal prosecution.

Question 8

When can a police officer make an arrest?

Accepted Answer

The general criteria for making an arrest is what is referred to as probable cause. Probable cause arises when there is sufficient evidence to cause a reasonable person to believe that the accused probably committed the crime in question. The key word is prob­able. That is, the accused is more likely than not to hove commit­ted the crime in question. The police may rely upon a variety of different sources of information to arrive at probable cause. For instance, a police investigator who relies upon an informant that has been used in the past regarding drug activities may determine that there is probable cause that narcotics are being sold at a particular location. That may justify not only the issuance of a search war­rant for those premises, but also the arrest of the persons inside the premises if narcotics are found. Probable cause may also be founded upon police surveillance, wherein the police have actu­ally seen suspicious activities going on at a particular location. Many things may justify the issuance of a warrant and a search of the premises.

Question 9

Can a person strike a deal with the prosecutor to avoid trial?

Accepted Answer

At any point during this process the defendant may plead guilty to the charge leveled against him or her. Likewise, at any stage during the process, the defendant or his or her attorney may conduct negotiations with the prosecutor to determine whether a plea to some lesser charge may be agreeable to the government. If such an agreement is reached, the plea agreement is brought to the attention of the court and the prosecution is concluded. The only thing left to be done is the imposition of whatever sentence has either been agreed to and accepted by the court or is otherwise established by the court. The judge has final control over what sentence is imposed regardless of what agreement the lawyers may have reached.

Question 10

What are my rights after I have been detained by the police?

Accepted Answer

The Miranda decision relates specifically to the rights of a criminal suspect after he has been detained by the police. Fifth Amendment right against self-incrimination means that a person has the right to be advised of his or her right to remain silent, right to counsel and right to terminate any police interrogation once it has begun after being arrested, before he or she could be questioned by the police. Miranda does not require that these rights be given to every person who is arrested. Frequently, a person is arrested and the police have no intention of asking him or her any questions about the alleged crimi­nal activity. If, however, the police do begin asking questions about the alleged criminal activity, then they are required to give the Miranda rights. If those rights are not given and the defendant divulges information in response to police questioning, that evidence may be excluded at trial. If the defendant spontaneously volunteers information, there is no Miranda requirement and therefore the evidence would not be excluded. The scope of Miranda has been altered by different courts and generally is now held to apply not only to persons who have been arrested, but also to persons who have become the focus of a police investigation. Even if a suspect has not been arrested, if he or she has become the focus of a criminal investigation and the interrogation is what is deemed to be custodial -- taking place in a police station or another type of police environment -- then the police must give the Miranda rights to that suspect before conducting their interrogation. A suspect or a defendant can waive the right against self-­incrimination and is free to speak to the police about his or her involvement in criminal activities. Experienced police officers normally require that waiver to be in writing or to be recorded so that there is no question that the suspect or defendant is voluntarily and knowingly waiving his or her rights.

Criminal Law

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