Frequently Asked Questions about Criminal Procedure
The basics of criminal law: presumption of innocence, felonies, misdemeanors, and jury trials.
Q: What’s the difference between a felony and a misdemeanor?
A: Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.
In some states, certain crimes are known as “wobblers,” which means that the prosecutor may charge the crime as either a misdemeanor or a felony.
Behaviors punishable only by fine are usually not considered crimes at all, but infractions — for example, traffic tickets. But legislatures sometimes label a behavior punishable only by fine as a misdemeanor — such as possession of less than an ounce of marijuana for personal use in California.
Q: What is the “presumption of innocence”?
A: All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant’s guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can’t convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant’s guilt beyond a reasonable doubt, makes it difficult for the government to put innocent people behind bars.
Q: How can I tell from reading a criminal statute whether I’m guilty of the crime it defines?
A: Criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor’s “intent.” These requirements are known as the “elements” of the offense.
A prosecutor must convince a judge or jury that all of the elements of the crime have been satisfied — meaning that the defendant did the acts and had the intent described in the statute.
For example, commercial burglary is commonly defined as entering a building belonging to another person, with the intent to commit petty or grand theft (that is, to steal), or any felony. To convict a person of this offense, the prosecutor would have to prove three elements:
- The defendant entered the structure.
- The structure belonged to another person.
- At the time the defendant entered the structure, he intended to commit petty or grand theft, or any felony.
Break the crime down into its required elements to see if each applies in your situation.
Q: What standard is used in criminal trials to prove a defendant is guilty?
A: The prosecutor must convince the judge or jury hearing the case that the defendant is guilty “beyond a reasonable doubt.” This standard is very hard to meet. (By contrast, in noncriminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence — just over 50%.)
As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant’s most common defense is to argue that there is reasonable doubt — that is, that the prosecutor hasn’t done a sufficient job of proving that the defendant is guilty.
Q: If I’m accused of a crime, am I guaranteed a trial by a jury?
A: The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. However, this right does not extend to petty offenses — defined as offenses that do not carry a sentence of more than six months.
Usually, a right to a trial by jury means a 12-person jury must arrive at a unanimous decision to convict or acquit. However, a jury can consist of as few as six persons. (Williams v. Florida, U.S. Sup. Ct, 1970.)
The size of juries tends to vary depending on the seriousness of the charge. For example, California requires 12-person juries for both felony and misdemeanor trials, except that the state and defendant may agree to less than 12-person juries in misdemeanors. Florida law provides for six-person juries in noncapital cases and 12-person juries in capital cases.
In most states, a lack of unanimity is called a “hung jury” and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, 12-member juries may convict or acquit on a vote of ten to two.
Q: Why would an innocent defendant choose not to testify?
A: The 5th Amendment to the U.S. Constitution gives every criminal defendant the right not to testify, and jurors are told that they cannot assume anything negative if the defendant decides to keep quiet. Of course, some jurors do make assumptions — and they cast their votes accordingly.
But there are some excellent reasons why a defendant might remain silent in court:
- If the defendant has previously been convicted of a crime, the prosecutor may be able to bring this fact out — but only if the defendant testifies. Evidence of a previous crime may cause some jurors to think that the defendant is guilty of the current crime, too.
- If the defendant testifies, the prosecutor may be able to bring out other information that tarnishes the defendant’s reputation and discredits his testimony.
- Some defendants have a poor demeanor when speaking in public. A judge or jury may not believe a defendant who, though telling the truth, is a nervous witness and makes a bad impression.
- The defendant may have a perfectly good story that would nevertheless sound fishy to the average jury in that particular locale.
Q: What happens if a defendant is judged “incompetent to stand trial”?
A: The question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense.
Based on a defendant’s unusual behavior, a judge, prosecutor, or defense attorney may ask that trial be delayed until the defendant has been examined and his or her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn’t understand what’s going on, the defendant will probably be placed in a mental institution until competence is reestablished. At that time, the trial will be held.
Frequently Asked Questions about Arrests and Interrogations
Learn about several constitutional protections that you can invoke during police interrogations.
Q: When do the police need a warrant to make an arrest?
A: As long as the police have good reason (called “probable cause”) to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage “a man’s home is his castle” still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense — such as a simple assault – and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.
Q: If I’m arrested, do the police have to “read me my rights”?
A: No. However, if they start questioning you but haven’t read you your rights, they can’t use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn’t matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.
Q: Will a judge dismiss my case if I was questioned without a Miranda warning?
A: No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you.
In addition, under the “fruit of the poisonous tree” rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.
Q: What’s the best way to assert my right to remain silent if I am being questioned by the police?
A: If you’re taken into custody by the police, you don’t have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
- I want to talk to an attorney.
- I won’t say anything until I talk to an attorney.
- I don’t have anything to say.
- I don’t want to talk to you anymore.
- I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point — and any evidence gleaned from that conversation — will not be admissible at your trial.
Q: How heavy-handed can the police get when asking questions?
A: Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is “voluntary.” Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights, and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as “the fruit of the poisonous tree,” any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
Defendants often claim that police officers coerced them into talking. And it’s just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.
Q: Can a person who is charged with a crime be forced to give bodily samples?
A: Yes. You might think that being forced to give bodily samples — such as blood, hair, or fingernail clippings — is a violation of the U.S. Constitution’s protection against self-incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the protection against self-incrimination.
Q: I was pulled over at a roadblock and asked to wait and answer a police officer’s questions. Is this legal?
A: Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and minimize any inconvenience to you and the other drivers. The police can’t single out your car at a roadblock unless they have good reason to believe that you’ve broken the law.
Frequently Asked Questions about Search and Seizure
Your right to privacy when the police come knocking, pull you over, or stop you on the street.
Q: When is a police investigation considered a search?
A: A police investigation constitutes a search if it intrudes on a person’s “legitimate expectation of privacy.” Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
- Did the person expect some degree of privacy?
- Is the person’s expectation reasonable — that is, one that society is willing to recognize?
If the answer to either of the above questions is “no,” then the investigation is not a “search.”
Q: How private is your property?
A: Generally, a search takes place if the police have to enter your property in order to view contraband or evidence of a crime. The police can then use what they have seen on your property in order to get a search warrant. Or, if the situation calls for prompt action (the need to stop a drug deal in progress, for instance), they may enter your dwelling without a warrant.
How does this play out in real life? Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations. However, they probably cannot use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations (unless, of course, they get a warrant or qualify for one of the warrant exceptions).
The general rule is this: if the investigation method is highly artificial and high-tech, it’s likely to be considered a search. Where the line is drawn, however, is not always clear and can vary from state to state. This will change if the U.S. Supreme Court decides whether the investigatory method constitutes a search for purposes of the Fourth Amendment; its decisions are binding on all states.
Q: What is a search warrant and what does it take to get one?
A: A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search — and why a warrant wasn’t obtained first — if the defendant challenges it in court.
A judge will issue a search warrant if the police provide enough information to show that:
- it is more likely than not that a crime has taken place, and
- items connected to the crime are likely be found in a specified location on the property.
The police usually provide information that is (1) based either on the officers’ own observations, or (2) based on the secondhand observations of an informant.
If providing secondhand information, the police generally must convince the judge that it is “reliable.” Usually, this means that the information is corroborated by police observation. For example, a citizen’s tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person’s routine.
However, corroboration of secondhand information is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
Q: What are the police allowed to do after they obtain a search warrant?
A: Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom.
But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
- ensure their safety and the safety of others
- prevent the destruction of evidence
- discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
- hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Q: Do the police always need a warrant to conduct a search?
A: No. In many situations, police may legally conduct a search without first obtaining a warrant. Here are some of the main exceptions:
- Consent searches. If the police ask your permission to search your home or other property, and you agree, the search is considered consensual, and they don’t need a warrant.
- Searches made in connection with an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer.
- Emergency exception. The police don’t need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger.
- The plain view doctrine. A police officer does not need to obtain a warrant to search and seize contraband that is “in plain view.”
Q: Can my roommate — or my landlord — give the police permission to search my apartment?
A: The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. However, if the police can point to circumstances that would justify immediate entry — such as the sound of a ferocious fight or the smell of burning marijuana — they may enter without permission from anyone.
Q: If a police officer pulls me over, can she frisk me or search my car?
A: Yes, if the officer has a reasonable suspicion you are armed and dangerous, she can frisk (pat down) you when you are pulled over for a traffic violation. Similarly, if the officer reasonably suspects that you are involved in criminal activity she can also perform a pat down. Assuming the police have probable cause — a reasonable basis or justification to believe that you or your passengers are involved in criminal activity — they can search your car and objects belonging to passengers.
Q: If my car is towed and impounded, can the police search it?
A: Yes. If your car is impounded, the police are allowed to conduct a thorough search of it, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally or if the police recover your car after it is stolen.
The police are required, however, to follow fair and standardized procedures when they search your car, and may not stop you and impound your car simply to perform a search.
Frequently Asked Questions about Bankruptcy (Chapter 7 and Chapter 13)
Q: What exactly is bankruptcy? Will it wipe out all my debts?
A: Bankruptcy is a federal court process designed to help consumers and businesses eliminate their debts or repay them under the protection of the bankruptcy court. Bankruptcies can generally be described as “liquidation” (Chapter 7) or “reorganization” (Chapter 13). Under a Chapter 7 bankruptcy, you ask the bankruptcy court to wipe out (discharge) the debts you owe. Under a Chapter 13 bankruptcy, you file a plan with the bankruptcy court proposing how you will repay your creditors. You must repay some debts in full; others may be repaid only partially or not at all, depending on what you can afford.
When you file either kind of bankruptcy, a court order called an “automatic stay” goes into effect. The automatic stay prohibits most creditors from taking any action to collect the debts you owe them unless the bankruptcy court lifts the stay and lets the creditor proceed with collections.
Certain debts cannot be discharged in bankruptcy; you will continue to owe them just as if you had never filed for bankruptcy. These debts include back child support, alimony, and certain kinds of tax debts. Student loans will not be discharged unless you can show that repaying the debt would be an undue burden, which is a very tough standard to meet. And other types of debts might not be discharged if a creditor convinces the court that the debt should survive your bankruptcy.
Q: What is the difference between Chapter 7 and Chapter 13 bankruptcy? Which one lets me keep my property?
A: In Chapter 7 bankruptcy, you ask the bankruptcy court to discharge most of the debts you owe. In exchange for this discharge, the bankruptcy trustee can take any property you own that is not exempt from collection (see below), sell it, and distribute the proceeds to your creditors.
In Chapter 13 bankruptcy, you file a repayment plan with the bankruptcy court to pay back all or a portion of your debts over time. The amount you’ll have to repay depends on how much you earn, the amount and types of debt you owe, and how much property you own.
You lose no property in Chapter 13 bankruptcy, because you fund your repayment plan through your income. In Chapter 7 bankruptcy, you select property you are eligible to keep from a list of state exemptions. Although state exemption laws differ, states typically allow you to keep these types of property in a Chapter 7 bankruptcy:
- Equity in your home, called a homestead exemption. Under the Bankruptcy Code, you can exempt up to $20,200 of equity. Some states have no homestead exemption; others allow debtors to protect all or most of the equity in their home.
- Insurance. You usually get to keep the cash value of your policies.
- Retirement plans. Most retirement benefits are protected in bankruptcy.
- Personal property. You’ll be able to keep most household goods, furniture, furnishings, clothing (other than furs), appliances, books and musical instruments. You may be able to keep jewelry only worth up to $1,000 or so. Most states let you keep a vehicle as long as your equity doesn’t exceed several thousand dollars. And many states give you a “wild card” amount of money — often $1,000 or more — that you can apply toward any property.
- Public benefits. All public benefits, such as welfare, Social Security, and unemployment insurance, are fully protected.
- Tools used on your job. You’ll probably be able to keep up to a few thousand dollars worth of the tools used in your trade or profession.
Q: Am I free to choose between Chapter 7 bankruptcy and Chapter 13 bankruptcy? Which type of bankruptcy should I use?
A: If you meet the eligibility requirements for both types of bankruptcy, then you can choose the type of bankruptcy that makes the most sense for your situation. However, you may not have a choice.
Under the new bankruptcy law, filers whose incomes are higher than the median income for a family of their size in their state may not be allowed to file for Chapter 7 bankruptcy if their disposable income, after subtracting certain allowed expenses and required debt payments, would allow them to pay back some portion of the unsecured debt over a five-year repayment period.
Also, if you have secured debts of more than $1,010,650 and unsecured debts of more than $336,900, for example, then you cannot use Chapter 13 bankruptcy.
Most people who file for bankruptcy choose to use Chapter 7, if they meet the eligibility requirements; Chapter 7 is a popular choice because, unlike Chapter 13, it doesn’t require filers to pay back any portion of their debts.
However, Chapter 13 might be a better choice, depending on your situation. For example, if you are behind on your mortgage and want to keep your house, you can include your missed payments in your Chapter 13 plan and repay them over time. In Chapter 7, you would have to make up the whole past due amount right away — and you might lose your house, if your equity exceeds the exemption amount available to you. For more on situations when Chapter 13 makes sense, seeReasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy.
Frequently Asked Questions about Foreclosure
Avoid or delay foreclosure with short sales, deeds in lieu of foreclosure, bankruptcy, and other tactics.
Q: Will my bank negotiate with me or lower my rate so I can avoid foreclosure?
A: Your lender may modify your loan if you have an adjustable rate mortgage or if you are several months behind on your mortgage. Call and ask to speak to your lender’s loan modification or loss mitigation department. The lender may accept partial payments for a few months (though you may have to agree to make up the difference later), accept a late payment, or agree to modify the terms of your loan.
There are several plans offered by the federal government to help homeowners avoid foreclosures, including FHASecure and Hope for Homeowners. The most recent program to be announced is the Homeowner Affordability and Stability Plan, which is aimed at helping homeowners refinance their mortgages to lower their mortgage payments. Homeowners might qualify for a refinance at a 15- or 30-year fixed-market-interest-rate (currently around 5%).
This plan would ease the rules so that homeowners whose loans are owned or guaranteed by the Fannie Mae and Freddie Mac could have a chance to refinance even if they have little or no equity in their home. A separate part of the plan would bring mortgage payments down for some homeowners to a total of 31% of their gross income. Both parts of the plan would apply only to homeowners with conforming loans.
Q: Can I sell my house for less than I owe on my mortgage (short sale)?
A: If the sales price you are offered falls short of the amount you owe the lender — called a “short sale” — you need to get permission from your lender. This is because in most states, technically a lender is allowed to sue you after the house is sold (or foreclosed on) to recover any remaining deficiency — the difference between the sales price and what you owe on the mortgage. In most cases, however, a lender is not likely to sue for a deficiency.
If you live in a state that doesn’t allow a lender to sue you for a deficiency, you don’t need to arrange for a short sale. In this case, if the sale proceeds fall short of your loan, the lender can’t do anything about it.
Short sales usually aren’t possible if there is a second mortgage, unless the same lender owns both loans. Also, some homeowners may be better off letting a foreclosure take place, saving a few month’s mortgage payments until it happens.
Q: Can bankruptcy stop a foreclosure?
A: Bankruptcy can delay a foreclosure, but won’t stop it permanently. Here’s how it works: When you file bankruptcy, the court automatically issues an “automatic stay.” The automatic stay directs your creditors to cease all collection activities and foreclosures immediately. If your home is scheduled for a foreclosure sale, the sale will be postponed while the bankruptcy is pending — typically for three to four months.
However, if your lender obtains the bankruptcy court’s permission to proceed with the sale (by filing a “motion to lift the stay”), the sale may be allowed to go forward after a couple of months. But during a Chapter 7 bankruptcy, you can live in your home for free for several months while your bankruptcy is pending. You can then use that money to help secure new shelter.
If you’re having trouble making your mortgage payments or already in jeopardy of foreclosure, see Nolo’s Bankruptcy and Foreclosure Blog or the bestselling Foreclosure Survival Guide, now available online at no charge. Both are written by practicing attorney Stephen R. Elias, president of the National Bankruptcy Law Project.
Q: What is a deed in lieu of foreclosure?
A: With a deed in lieu of foreclosure, you give your home to the lender (the “deed”), and in exchange, the lender cancels the loan rather than foreclosing on the property. In most states, a lender is allowed to sue you to recover any remaining deficiency—the difference between what the lender can sell the house for and what you owed on the mortgage. Before you agree to a deed in lieu of foreclosure, make sure that the lender agrees, in writing, to forgive any deficiency that exists. Deeds in lieu of foreclosure are not possible if there is a second mortgage, unless the same lender owns both loans.
Q: What happens to renters when a property is foreclosed on?
A: Most renters will lose their leases upon foreclosure. The rule in most states is that if the mortgage was recorded before the lease was signed, the lease will be wiped out when a foreclosure occurs. That doesn’t mean a renter will have to leave immediately – but those who remain in the rental join the ranks of month-to-month renters, all of whom can be terminated with proper notice — usually 30 days, but 60 days in California. The new owner (usually the lender) may or may not move quickly to terminate the rental.
Q: Are there foreclosure protections for military personnel?
A: A mortgage lender can’t foreclose on a house owned by military personnel on active duty unless the lender seeks special permission from the court.
The Right to Own a Gun Under Heller
How far does the Supreme Court’s ruling on an individual’s right to own a gun under Heller go?
In District of Columbia v. Heller, 54 U.S. ___ (2008), the U.S. Supreme Court ruled that the U.S. Constitution protects an individual’s right to own a gun for personal use. Yet despite the Court’s clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for certain restrictions to gun ownership. The ruling leaves many uncertainties as to which types of gun control laws will be allowed to stand and which will be ruled unconstitutional.
What Heller Says
The Heller case involved a challenge to the District of Columbia’s ban on handguns. For the first time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment to the U.S. Constitution as it relates to gun control laws.
The Second Amendment provides that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
For many years, scholars and anti-gun proponents have argued that the Second Amendment provides a right to own guns only in connection with service in a militia, and that this right should not extend to private individuals. That argument was roundly rejected by the Supreme Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own a gun is not connected with service in a militia; rather, it is a personal right to own a firearm for “traditionally lawful purposes” such as self-defense within the home.
The bottom line: You have a constitutional right to possess a firearm regardless of whether you are serving in a militia. But just how far that right extends remains up in the air.
How Heller Affects Gun Control Laws
How much the ruling in Heller will affect gun control laws in various cities and states remains to be seen.
The gun control law at issue in the Heller case — a nearly across-the-board gun ban in the District of Columbia – was considered to be the strictest gun-control law in the nation. Because the Supreme Court’s ruling concerned only this strict ban on handguns, the decision leaves unclear whether less-stringent bans in other states and cities will survive constitutional challenges.
And, although the Supreme Court’s decision adopted the broader, individual-rights interpretation of the Second Amendment, the Court also made it clear that the right to own a gun continues to have a number of significant qualifications or restrictions, including:
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Not everyone can own a gun. The right does not extend to felons or the mentally ill.
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Guns cannot be carried everywhere. Laws forbidding individuals from carrying firearms in “sensitive” places, such as schools and government buildings, will probably stand.
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Certain restrictions on the sale of guns are allowed. Laws imposing conditions and qualifications on the commercial sale of firearms will most likely stand.
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Individuals do not have the right to carry certain types of guns. The right does not protect guns that are not generally owned for lawful purposes, such as short-barreled shotguns. Just what kind of handguns may be possessed is not explicitly set forth in the opinion (apart from the one specific reference to sawed-off shotguns, which are not allowed). The Court did endorse the “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” but did not state whether such weapons include assault weapons or semi-automatic weapons.
Given this long list of qualifications, it remains unclear how Heller will affect the many different types of gun control laws that exist in cities and states throughout the country.
New Challenges to Gun Control Laws
One thing is for sure: Advocates all over the country will now challenge gun control laws based on the Supreme Court’s ruling in Heller. Within a day of the decision, lawsuits challenging gun control laws had been filed in Chicago and San Francisco, and additional challenges are expected in New York, Philadelphia, Detroit, and countless other cities.
While gun rights advocates like the National Rifle Association hailed the Supreme Court’s decision as a welcome addition to their arsenal in the ongoing war against gun control laws, only time (and future court decisions) will tell whether the Court’s ruling marks the beginning of a comprehensive rollback of gun control restrictions in this country or is merely a symbolic ruling that will ultimately leave most of those laws in effect.
To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).
Recent Criminal Law Developments
by Attorney Paul Bergman
Get the latest news in criminal law – from vehicle searches to federal sentencing to death penalty trends.
In general, 2007 saw few major national changes in rules pertaining to criminal law and procedure. However, there were a few developments of note, including new search and seizure rights, continued decisions on sentencing those convicted of federal crimes, and certain trends in the death penalty area.
Police Have More Rights to Search Cars and Occupants
When police officers pull a vehicle over for a traffic infraction, they usually cite the driver and allow the driver to continue on his or her way. However, recognizing the potential danger to police officers and the mobility of cars, in 2007 the U.S. Supreme Court issued rulings that authorize police officers to protect themselves by asking the driver and any passengers to stand outside the vehicle.
In the case of Brendlin v. California (2007), the U.S. Supreme Court ruled that police officers who carry out traffic stops “seize” all of a car’s occupants. The decision makes clear that police officers have the same power over passengers that they do over drivers. For example, if a police officer reasonably suspects that a car’s occupant is armed, the officer can conduct a “pat down” search of that person regardless of whether he is the driver or a passenger. As a result of this ruling, drivers as well as passengers alike can challenge the legality of a stop and any ensuing search and arrest.
Federal Trial Court Judges Have More Say in Sentencing
In 2007, the U.S. Supreme Court continued its trend of allowing federal trial courts more discretion in sentencing those convicted of crimes.
History of the “Sentencing Guidelines.” Concerned about disparities and leniency in sentencing, over two decades ago the U.S. Congress enacted The Sentencing Reform Act of 1984. The law led to the creation of a Guidelines Manual, which set forth mandatory sentences for almost all federal crimes. Mandatory sentencing requires judges to impose specific and identical sentences on all defendants who violate laws, rather than allowing the judge to consider various factors when deciding on an appropriate punishment, such as the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse.
Over the years, many judges, defense attorneys, and even prosecutors came to oppose the mandatory sentence scheme, believing that it was too rigid and too harsh. Finally, in the case of U.S. v. Booker (2005), the U.S. Supreme Court ruled that the sentences set forth in the Guidelines Manual were advisory and not mandatory.
2007: Sentencing Discretion for Federal Judges Continues. In 2007, the U.S. Supreme Court issued several opinions that further clarified the discretion of federal trial court judges in sentencing those convicted of crimes.
In Gall v. U.S. (2007), the Court ruled that appellate court judges cannot substitute their judgment for that of a trial judge. An appellate court judge can only reverse a trial judge’s sentence if it constitutes an abuse of discretion. (An appellate court is a higher court that reviews the decision of a trial court when a losing party files an appeal.)
If a trial judge issues a sentence that is within the range specified in the Guidelines Manual, it is presumed to be reasonable. ( Rita v. U.S. (2007).) But a trial judge can issue a sentence that departs from this range, and it will still stand on appeal as long as it is reasonable. For example, if a trial judge believes that the Guidelines’ recommended punishment for possession of crack cocaine is unduly harsh compared to the recommended punishment for powder cocaine, the trial judge can give a lesser sentence for possession of crack cocaine. Such a decision is final as long as it is reasonable. (Kimbrough v. U.S. (2007).)
Death Penalty Update
The number of death sentences handed out and the number of executions carried out continued to decrease in 2007. Forty-two executions were carried out in 2007, compared to 53 executions in 2006, 60 executions in 2005, 59 executions in 2004, 65 executions in 2003, and 71 executions in 2002. In 2007, 110 convicted murderers were given death sentences, compared to 114 in 2006 and 128 in 2005.
Another state abolishes the death penalty. New Jersey abolished the death penalty in 2007. As a result, 37 states now authorize the death penalty.
Lethal injection method under attack. The U.S. Supreme Court has heard arguments in the case of Baze v. Rees and should issue its decision sometime in 2008. Baze v. Rees centers on whether the most frequently used combination of drugs used for execution by lethal injection, sometimes called a “three drug cocktail,” violates the 8th Amendment’s proscription of cruel and unusual punishment. Ten states placed a moratorium on executions by lethal injection even before the Supreme Court announced its decision to hear the case, and after its announcement, a few more states did so.
To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).
Reasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy
Sometimes it makes sense to file for Chapter 13 bankruptcy instead of Chapter 7 bankruptcy.
Many debtors choose not to file for Chapter 13 bankruptcy because it requires repayment of at least a portion of their debts (unlike Chapter 7 bankruptcy, which wipes out many debts entirely ).
In some situations, however, Chapter 13 bankruptcy is the better bankruptcy option. Not only that, but certain debtors don’t get to choose: Not everyone is eligible for Chapter 7 bankruptcy, so Chapter 13 will by the only option available to some filers.
Here are some good reasons to file for Chapter 13:
You cannot file for Chapter 7. You won’t be allowed to file for Chapter 7 if you cannot meet some new requirements imposed by the 2005 revisions to the bankruptcy law. Under these new rules, you cannot file for Chapter 7 if both of the following are true:
- Your current monthly income over the six months prior to your filing date is more than the median income for a household of your size in your state (go to the website of the United States Trustee,www.usdoj.gov/ust, and click “Means Testing Information” to see the median figures for your state).
- Your disposable income, after subtracting certain expenses and monthly payments for debts you would have to repay in Chapter 13, exceeds certain limits set by law. These calculations are commonly referred to as the “means test” — if you have the means to repay a certain amount of your debt through a Chapter 13 repayment plan, you flunk the test and are ineligible for Chapter 7 bankruptcy. (For more information, including a link to an online calculator you can use to see whether you pass the means test, seeThe Bankruptcy Means Test: Is Your Income Low Enough for Chapter 7 Bankruptcy?)
The means test can get fairly complex — and, to make matter worse, Congress has its own definitions of “disposable income,” “current monthly income,” “expenses,” and other important terms, which sometimes operate to make your income seem higher than it actually is. You can find step-by-step instructions to determine if you qualify for Chapter 7 under these new rules in How to File for Chapter 7 Bankruptcy, by attorney Stephen Elias, attorney Albin Renauer, and Robin Leonard, J.D. (Nolo).
In addition, if you have received a Chapter 7 bankruptcy discharge within the last eight years, or a Chapter 13 discharge within the last six years, you may not file for Chapter 7 bankruptcy.
You are behind on your mortgage or car loan, and want to make up the missed payments over time and reinstate the original agreement. You cannot do this in Chapter 7 bankruptcy. You can make up missed payments only in Chapter 13 bankruptcy.
You have a tax obligation, student loan, or other debt that cannot be discharged in Chapter 7. You can include these debts in your Chapter 13 plan and pay them off over time.
You have a sincere desire to repay your debts, but you need the protection of the bankruptcy court to do so. This might be the case if creditors are coming after you, or if you simply require the formal structure and deadlines the Chapter 13 process provides in order to follow through on your good intentions.
You have nonexempt property that you want to keep. When you file for Chapter 7 bankruptcy, you get to keep only exempt property — property that is protected from creditors under state or federal law. You have to give your nonexempt property to the bankruptcy trustee, who can sell it and distribute the proceeds to your creditors.
In Chapter 13, you don’t have to give up any property. Instead, you repay your debts out of your income. So, if you have nonexempt property that you can’t bear to part with, Chapter 13 might be the better choice.
You have a codebtor on a personal debt. If you file for Chapter 7 bankruptcy, your codebtor will still be on the hook — and your creditor will undoubtedly go after the codebtor for payment. If you file for Chapter 13 bankruptcy, the creditor will leave your codebtor alone, as long as you keep up with your bankruptcy plan payments.
For more help deciding which bankruptcy is right for you, see The New Bankruptcy: Will It Work for You?, by attorney Stephen Elias (Nolo). Or, for help filing Chapter 13, see Chapter 13 Bankruptcy: Repay Your Debts, by attorney Stephen Elias and Robin Leonard, J.D. (Nolo).
An Overview of Chapter 13 Bankruptcy
The basic steps involved in a typical Chapter 13 bankruptcy case.
Chapter 13 bankruptcy, sometimes called reorganization bankruptcy, is quite different from Chapter 7 bankruptcy. In a Chapter 7 bankruptcy, most of your debts are wiped out; in exchange, you must relinquish any property that isn’t exempt from seizure by your creditors. In a Chapter 13 bankruptcy, you don’t have to hand over any property, but you must use your income to pay some or all of what you owe to your creditors over time — from three to five years, depending on the size of your debts and income.
Chapter 13 Eligibility
Chapter 13 bankruptcy isn’t for everyone. Because Chapter 13 requires you to use your income to repay some or all of your debt, you’ll have to prove to the court that you can afford to meet your payment obligations. If your income is irregular or too low, the court might not allow you to file for Chapter 13.
If your total debt burden is too high, you are also ineligible. Your secured debts cannot exceed $1,010,650, and your unsecured debts cannot be more than $336,900. A “secured debt” is one that gives a creditor the right to take a specific item of property (such as your house or car) if you don’t pay the debt. An “unsecured debt” (such as a credit card or medical bill) doesn’t give the creditor this right.
The Chapter 13 Process
Before you can file for bankruptcy, you must receive credit counseling from an agency approved by the United States Trustee’s office. (For a list of approved agencies, go to the Trustee’s website at www.usdoj.gov/ust and click “Credit Counseling and Debtor Education.”) These agencies are allowed to charge a fee for their services, but they must provide counseling for free or at reduced rates if you cannot afford to pay.
In addition, you’ll have to pay the filing fee, which is currently $274, and file numerous forms. For line-by-line instructions on filling out the required bankruptcy forms, see Chapter 13 Bankruptcy: Keep Your Property & Repay Debts Over Time, by Stephen Elias and Robin Leonard (Nolo).
The Chapter 13 Repayment Plan
The most important part of your Chapter 13 paperwork will be a repayment plan. Your repayment plan will describe in detail how (and how much) you will pay each of your debts. There is no official form for the plan, but many courts have designed their own forms.
How Much You Must Pay
Your Chapter 13 plan must pay certain debts in full. These debts are called “priority debts,” because they’re considered sufficiently important to jump to the head of the bankruptcy repayment line. Priority debts include child support and alimony, wages you owe to employees, and certain tax obligations.
In addition, your plan must include your regular payments on secured debts, such as a car loan or mortgage, as well as repayment of any arrearages on the debts (the amount by which you’ve fallen behind in your payments).
The plan must show that any disposable income you have left after making these required payments will go towards repaying your unsecured debts, such as credit card or medical bills. You don’t have to repay these debts in full (or at all, in some cases). You just have to show that you are putting any remaining income towards their repayment.
How Long Your Repayment Plan Will Last
The length of your repayment plan depends on how much you earn and how much you owe. If your average monthly income over the six months prior to the date you filed for bankruptcy is more than the median income for your state, you’ll have to propose a five-year plan. If your income is lower than the median, you may propose a three-year plan. (To get the median income figures for your state, go to the United States Trustee’s website,www.usdoj.gov/ust, and click “Means Testing Information.”)
No matter how much you earn, your plan will end if you repay all of your debts in full, even if you have not yet reached the three- or five-year mark.
If You Can’t Make Plan Payments
If for some reason you cannot finish a Chapter 13 repayment plan — for example, you lose your job six months into the plan and can’t keep up the payments — the bankruptcy trustee may modify your plan, or the court might let you discharge your debts on the basis of hardship. Examples of hardship would be a sudden plant closing in a one-factory town or a debilitating illness.
If the bankruptcy court won’t let you modify your plan or give you a hardship discharge, you might be able to convert to a Chapter 7 bankruptcy or ask the bankruptcy court to dismiss your Chapter 13 bankruptcy case (you would still owe your debts, plus any interest creditors did not charge while your Chapter 13 case was pending). For information on your alternatives in this situation, see Chapter 13 Bankruptcy: Keep Your Property & Repay Debts Over Time, by Stephen Elias and Robin Leonard (Nolo).
How a Chapter 13 Case Ends
Once you complete your repayment plan, all remaining debts that are eligible for discharge will be wiped out. Before you can receive a discharge, you must show the court that you are current on your child support and/or alimony obligations and that you have completed a budget counseling course with an agency approved by the United States Trustee. (This requirement is separate from the mandatory credit counseling you must undergo before filing for bankruptcy — you can find a list of approved agencies at the Trustee’s website, www.usdoj.gov/ust; click “Credit Counseling and Debtor Education.”)
For more information, see Chapter 13 Bankruptcy: Keep Your Property & Repay Debts Over Time, by Stephen Elias and Robin Leonard (Nolo).
The Bankruptcy Means Test: Is Your Income Low Enough for Chapter 7 Bankruptcy?
A means test calculator can determine whether you qualify for Chapter 7 bankruptcy — try one online.
The “means test” is a formula designed to keep filers with higher incomes from filing for Chapter 7 bankruptcy. Only bankruptcy filers with primarily consumer debts, not business debts, need to take the means test. High income filers who fail the means test may use Chapter 13 bankruptcy to repay a portion of their debts, but may not use Chapter 7 bankruptcy to wipe out their debts altogether.
However, having to take the Chapter 7 means test doesn’t mean that you must be penniless in order to use Chapter 7 bankruptcy. You can earn significant monthly income and still qualify for Chapter 7 bankruptcy if you have a lot of expenses, such as a high mortgage payment. This article shows you simple ways to determine whether you can pass the means test — and, therefore, use Chapter 7 — if you were to file for bankruptcy.
How Does the Chapter 7 Means Test Work?
The means test was designed to limit the use of Chapter 7 bankruptcy to those who truly can’t pay their debts. It does this by deducting specific monthly expenses from your “current monthly income” (your average income over the six calendar months before you file for bankruptcy) to arrive at your monthly “disposable income.” The higher your disposable income, the more likely you won’t be allowed to use Chapter 7 bankruptcy.
To take the means test, you must first determine whether your income is more or less than the median income in your state. If you earn more than the median, you must figure out whether you would have enough left over, after subtracting certain expenses, to repay some of your debt.
Is Your Income More Than the Median?
The first step is simple: If your current monthly income is less than the median income for a household of your size in for your state, you pass. Period. You’re done. You do not need to complete the rest of the means test. You can file for Chapter 7.
Do You Have Enough Disposable Income to Repay Some Debts?
For those whose household income exceeds the state median, the means test computations get significantly more complex. You must determine whether you have enough income left over (called “disposable income”), after paying your “allowed” monthly expenses, to pay off at least a portion of your unsecured debts (such as credit card bills). If your disposable income adds up to more than a certain amount, you fail the means test and cannot file for Chapter 7 bankruptcy.
Median income levels vary by state and household size, and each county and metropolitan region has different allowed amounts for categories of expenses: basic necessities, housing, and transportation. But don’t worry: You can get through the math with the help of an online calculator.
Use a Chapter 7 Means Test Online Calculator
If you’re looking for an easy way to determine your eligibility under the Chapter 7 means test, use our online means test calculator, created by the author of Nolo’s book How to File for Chapter 7 Bankruptcy, Albin Renauer, J.D. Once you enter your zip code, the calculator uses the applicable income and expense standards for your state, county, and region to determine your eligibility.
You’ll have to supply some income and expense information, but the calculator will save you the trouble of looking up income and expense figures for your area and doing the math. And, if you decide to file for Chapter7 bankruptcy, you can use these figures on your official paperwork (the calculator closely follows the format of the means test form, Official Form 22A, that you must complete when you file for bankruptcy).
If You Pass the Chapter 7 Means Test
Just because you qualify under the means test does not necessarily mean you should file for Chapter 7 bankruptcy — merely that you can. Any decision to file for Chapter 7 bankruptcy should be made only after considering alternatives and other factors discussed in other articles on this website or in Nolo’s The New Bankruptcy: Will It Work for You?, by Attorney Stephen Elias.
Once you’ve made your decision to go ahead and file for Chapter 7 bankruptcy, Nolo’s book How to File for Chapter 7 Bankruptcy, by Stephen Elias, Albin Renauer, and Robin Leonard, can walk you step by step through the filing process.
If You Don’t Pass the Chapter 7 Means Test
If you don’t pass the means test, you are limited to using Chapter 13 bankruptcy, which requires you to make monthly payments over a five-year period according to a strict budget monitored by the court. Most people who file for bankruptcy prefer Chapter 7, which requires no repayment. However, Chapter 13 bankruptcy is still the best way to handle specific types of problems, like curing a default on a mortgage. (SeeReasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy.)
For help filing a Chapter 13 bankruptcy, see Nolo’s Chapter 13 Bankruptcy: Repay Your Debts, by Stephen Elias and Robin Leonard.