Monday, August 24, 2009

Criminal Procedure And Terminology ~By Legal Pub

In order to best understand criminal procedure, contact a criminal lawyer in your state. For a general understanding of criminal terminology and procedure the following might be helpful in following stories in the news media.

Probable Cause This terminology is most commonly discussed in terms of a traffic stop. In general, before a police officer can stop you for driving under the influence of alcohol or drugs,the officer must have probable cause that you are impaired or have stopped you for some other valid reason. The National Highway Traffic Safety Administration lists visual clues to help identity drunk drivers. If a driver is stopped for another reason and the officer notices an odor of alcohol, slurred speech, blood shot eyes then the officer may have probable cause to investigate further.


A citizen may be stopped for questioning by the police. A stop is not as an arrest. With a stop you may be detained, but you are not moved to a different location. During a stop the police officer has a right to ask questions; however, the person detained has a right to refuse to answer.

Search Warrants

A search warrant authorizes police to search a specific place such as a business or residence. A warrant must be signed by a judge who first determines that "probable cause" for the warrant exists. In this context, probable cause exists when it is more likely than not that the listed places to be searched for are connected with criminal activities and that the items are likely to be found in the place searched.

Warrantless Searches

While warrants are generally required for searches, a warrant is not required for searches incident to arrest. For example, police are generally permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest. Similarly, if the arrest takes place in a motor vehicle, police may search the open areas of the vehicle. To enter a locked glove compartment; however, probable cause is necessary.

Searches Under Exigent circumstances

If there are "exigent circumstances" which demand immediate action ( such as to avoid the destruction of evidence), than searches may be conducted. Similarly, police do not need a search warrant when they see an object that is in plain view of an officer. An officer may also search your body, your vehicle, or your home with your consent. Such consensual searches do not require a warrant. A person who is stopped or detained by police does not have to consent to a search.


If there is probable cause, the suspect can be arrested. In this case, probable cause is a reasonable belief that a crime was committed by the suspect. A warrant for arrest is not necessary. A person arrested has certain constitutional rights. One is the right to remain silent. The second is the right to have an attorney. (Do not waive either right without careful consideration.)

Miranda Rule

So often suspects claim that they were "never read their rights." Under the Miranda Rule, any suspect in police custody must be informed of specific constitutional rights prior to interrogation. The suspects rights include:
The right to remain silent
The right to have an attorney present during questioning
The right to have an attorney appointed if the suspect can not afford an attorney.

What lay people typically don't understand is that Miranda rights do not have to be read until the suspect is taken into custody. Consequently, police can question the suspect before taking them into custody. Prior to being taken into custody, anything said can be used against the suspect in court.


Once arrested, the suspect is brought down to the police station for booking. The suspect is fingerprinted and asked to give their name and date of birth. The suspect will be searched and photographed. The suspect's personal property will be inventoried, catalogued and stored. The suspect will typically be asked to put on a jail uniform and is then placed in a holding cell.


Criminal charges are filed by the arresting officer providing a report to the prosecutor and the prosecutor executing an affidavit of probable cause. During the arraignment, the suspect makes a court appearance. If the suspect is in jail, the arraignment hearing is usually within 72 hours of the arrest. The suspect is asked to enter a plea. If the suspect pleads "guilty," the suspect is admitting that the crime was committed. A "not guilty" plea asserts that the suspect did not commit the crime. After the plea is entered, a pre-trial hearing and a trial date are typically set. An omnibus date may also be entered. The omnibus date is simply a trigger date for when certain motions are due.

A plea of "no contest" means that while you are not admitting guilt, you do not dispute the charge. Arguably this is preferable to a guilty plea because no admission has been made and thus it may not be admissible in a civil suit. In Indiana and a few other states, a "Mute" plea allows suspect to remain silent as to any plea. A mute plea allows the defendant to attack all previous proceedings that may have been irregular.

A guilty plea will trigger a sentencing hearing where the punishment will be determined. For suspects pleading not guilty, the court will determine whether bail is appropriate. If appropriate, the court will determine the amount of bail or if the suspect can be released on his or her own personal recognizance. Bail" is money or property pledged as security to ensure that the defendant will show up for their next hearing. Bail can be paid:
In cash
A pledge of property

A bail bond

Speedy Trial

The Sixth Amendment of the United States Constitution guarantees that the trial be held within a certain time after a suspect has been charged with a crime. A defendant may waive this right.
In most states, a trial is to be held within 6 months if the defendant is detained in jail ∙ An incarcerated defendant in Indiana can ask for a trial within 70 days. If the defendant is not in jail, he must be tried within one year.

Classes of Crime

A felony is a crime punishable by imprisonment for more than one year. A misdemeanor is usually punishable by a fine or less than a year of incarceration.


If a defendant does not enter into a plea agreement with the prosecutor, a criminal trial by jury is conducted unless the defendant elects to a trail by the judge. With a misdemeanor, the defendant must make a demand for a jury or the right to a jury will be waived.


A convicted defendant is entitled to appeal. Typically, the defendant has 30 days following the judgment to file an appeal. Reasons for an appeal may include Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of the defendants constitutional rights. Other reasons may include lack of sufficient evidence to support a verdict of guilty, mistakes in the judge's instructions to the jury, misconduct on behalf of the jurors, or newly discovered evidence that exonerates the defendant.


Sometimes a criminal record can be expunged after a defendant has completed their sentence. Expungement means the records will be destroyed. Expungement may occur if there was an arrest but charges were dropped or if your conviction has been reversed. Juvenile records may also be expunged.

For those wishing to follow the news, hopefully this will help you better understand what is happening in and out of the court room. Our constitutional rights are precious and to be safeguarded. If you need legal help, always consult your local attorney.


Anonymous said...

One of the academic writings. Thanks.

Anonymous said...

More knowledge than I needed.

Ms Calabaza said...

Great post. Now, let's hope I never need to know more...

Anonymous said...

You are like a fountain of knowledge, pubmeister. Thanks for the criminal 101 lesson.

Anonymous said...

You are like a fountain of knowledge, pubmeister. Thanks for the criminal 101 lesson.

Anonymous said...

Criminal Law 101 in a nutshell?

Anonymous said...

Yup. Good job L.P.

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