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.