The Criminal Law Handbook
Know Your Rights, Survive the System
The Criminal Law Handbook
Know Your Rights, Survive the System
The #1 Criminal Law Resource
Paul Bergman, J.D. and Sara J. Berman, J.D.
August 2015, 14th Edition
The criminal justice system is complicated -- Understand it and your rights
Criminal law is full of complex rules and procedures, but this book demystifies them. It explains how the system works, why police, lawyers, and judges do what they do, and—most important—the options for suspects, defendants, and victims. It also provides critical information on working with a lawyer.
In plain English, The Criminal Law Handbook covers:
- search and seizure
- arrest, booking, and bail
- plea bargains
- working with defense attorneys
- common defenses
- constitutional rights
- juvenile court
- preliminary hearings
- public defenders
The 14th edition is completely updated, covering the latest changes in criminal and U.S Supreme Court cases. Written by the authors of Represent Yourself in Court, Paul Bergman, J.D. and Sara Berman, J.D.
“ An excellent and balanced guide to the … criminal justice process.”-Library Journal
Table of Contents
Your Legal Companion
Introduction: A Walk-Through of the Case of State v. Andrea Davidson, a Fictional Robbery Prosecution
1. Talking to the Police
- Police Questioning of People Who Haven’t Been Taken Into Custody
- Police Questioning of Arrestees
2. Search and Seizure
- The Constitutional Background
- Search Warrants
- Consent Searches
- The Plain View Doctrine
- Warrantless Searches Incident to Arrest
- “Stop and Frisk” Searches
- Searches of Cars and Occupants
- Warrantless Searches or Entries Under Emergency (Exigent) Circumstances
- Miscellaneous Warrantless Searches
3. Arrest: When It Happens, What It Means
- General Arrest Principles
- Arrest Warrants
- Warrantless Arrests
- Use of Force When Making Arrests
- Citizens’ Arrests
4. Eyewitness Identification: Psychology and Procedures
- An Overview of Eyewitness Identification Procedures
- The Psychology of Eyewitness Identification
- Photo Identifications
- Motions to Suppress Identifications
5. Booking and Bail: Checking In and Out of Jail
- The Booking Process
- Arranging for Bail
- Own Recognizance Release (Release O.R.)
6. From Suspect to Defendant
- Crime and Criminal Cases
- To Charge or Not to Charge, That Is the Question
- The Mechanics of Charging
- Grand Juries
7. Criminal Defense Lawyers
- Do I Need a Lawyer?
- Court-Appointed Attorneys
- Private Defense Attorneys
8. Understanding the Attorney-Client Relationship in a Criminal Case
- Client-Centered Decision Making
- Lawyer-Client Communication
- Representing Guilty Defendants
- Competent Clients
9. A Walk Through Criminal Court
- The Courthouse
- The Courtroom
- The Courtroom Players
- Courtroom Behavior
- Arraignment Basics
- Self-Representation at Arraignment
11. Developing the Defense Strategy
- How the Defendant’s Version of Events May Limit Defense Strategies
- When Attorneys Ignore a Defendant’s Version of Events
- The Importance of Honesty in Developing a Defense Strategy
12. Crimespeak: Understanding the Language of Criminal Laws
- Mens Rea
- The Meaning of Frequently Used Legal Language
- Derivative Criminal Responsibility
- Murder and Manslaughter
- Sexual Violence
- Hate Crimes
- The Patriot Act
- White-Collar Crimes
13. Defensespeak: Common Defenses to Criminal Charges
- Prosecutor’s Failure to Prove Guilt
- “Partial” Defenses
- Intoxication (Under the Influence of Drugs or Alcohol)
- Jury Nullification
14. Discovery: Exchanging Information With the Prosecution
- Modern Discovery Policy
- Discovery of Information Helpful to the Defense
- Discovery of Harmful Information
- Reciprocal Discovery
15. Investigating the Facts
- Interviewing Prosecution Witnesses
- Finding and Interviewing Defense Witnesses
- Other Investigation Tasks and Their Costs
16. Preliminary Hearings
- What Preliminary Hearings Are and When They Are Held
- Basic Rights During Preliminary Hearings
- Common Defense and Prosecution Strategies
17. Fundamental Trial Rights of the Defense
- The Defendant’s Right to Due Process of Law
- The Prosecution’s Burden of Proof
- The Defendant’s Right to Remain Silent
- The Defendant’s Right to Confront Witnesses
- The Defendant’s (and the Media’s) Right to a Public Trial
- A Defendant’s Right to a Jury Trial
- A Defendant’s Right to Counsel
- A Defendant’s Right to a Speedy Trial
- The Defendant’s Right Not to Be Placed in Double Jeopardy
18. Basic Evidence Rules in Criminal Trials
- Rules Regulating the Content of Testimony
- Rules Regulating the Manner of Testimony
- Scientific Evidence
- Privileged (Confidential) Information
19. Motions and Their Role in Criminal Cases
- Basic Procedures
- Common Pretrial Motions
- Motions During Trial
- Posttrial Motions
20. Plea Bargains: How Most Criminal Cases End
- Plea Bargaining—Terminology and Timing
- The Pros and Cons of Plea Bargains
- The Plea Bargaining Process
- The Strategy of Negotiating Plea Bargains
21. The Trial Process
- Summary of the Trial Process
- Choosing a Judge or Jury Trial
- Jury Voir Dire
- Motions in Limine
- Opening Statements
- Prosecution’s Case-in-Chief
- Direct Examination of Witnesses
- Defense Motion to Dismiss
- Defendant’s Case-in-Chief
- Closing Argument
- Instructing the Jury
- Jury Deliberations and Verdict
- Overview of Sentencing
- Sentencing Procedures
- Sentence Options
- Community Service
- Miscellaneous Alternative Sentences
- The Death Penalty
24. Victims and Victims’ Rights
- Victims and the Criminal Justice System
- Pretrial Processes
- The Trial-and-Sentencing Process
- Posttrial Processes
25. The System at Work: DUI Laws and Processes
- Questions and Answers About DUI (Driving Under the Influence)
- DUI Case Examples
26. Juvenile Courts and Procedures
- A Brief History of U.S. Juvenile Courts
- Juvenile Court Jurisdiction
- Deciding Whether to File Charges
- The Right to Counsel and Other Constitutional Rights
- Trying Juveniles as Adults
- Sentencing (Disposition) Options
- Sealing Juvenile Court Records
27. Prisoners’ Rules
- Prisons and Prisoners’ Rights
- Legal Resources for Prisoners and Their Families
A Walk-Through of the Case of State v. Andrea Davidson,
a Fictional Robbery Prosecution
This walk-through is intended to quickly familiarize you with what may happen as a case wends its way through the criminal justice system. While no two cases follow the identical procedural path, the example provides an overview of the process and serves as a guide to where you’ll find answers to the questions posed in the walk-through, as well as loads of additional important information.
Andrea Davidson is walking along a public street when Officer Kevin Daniels walks up to her and says, “Excuse me, I’d like to ask you a few questions.”
Can the officer legally do this?
Does Officer Daniels have to possess reliable information connecting Andrea to criminal activity before he can question her?
Does Andrea have to answer the officer’s questions? Is it a good idea for her to talk to the officer even if she doesn’t have to?
If Andrea believes that she has done nothing wrong, does she have anything to lose by talking to the officer?
See Chapter 1, Talking to the Police.
For many folks who are stopped and questioned, lawfully or otherwise, contact with the criminal justice system ends after the police finish “on the street” questioning. But as an example in our walk-through, Andrea has a long road ahead of her. Before questioning Andrea, Officer Daniels proceeds to “frisk” her (pat down her outer clothing).
What’s the difference between a frisk and a search?
Can police officers search suspects as a matter of routine?
If, during the frisk, the officer feels what seems to be a suspicious object, can the officer remove it from Andrea’s clothing?
See Chapter 2, Search and Seizure.
Officer Daniels removes a gun from Andrea’s coat and arrests her for carrying a concealed weapon.
What constitutes an arrest?
Do police always take an arrested suspect to jail?
Was the officer required to get a warrant before arresting Andrea?
See Chapter 3, Arrest: When It Happens, What It Means.
Andrea is taken to jail by Officer Daniels.
What will happen to Andrea when she’s booked into jail?
How soon will Andrea have a chance to bail out of jail?
What’s the difference between posting cash bail and buying a bail bond?
See Chapter 5, Booking and Bail: Checking In and Out of Jail.
Feeling very alone and scared, Andrea considers contacting a lawyer.
Does Andrea have a right to an attorney? What if she can’t afford to hire one?
If Andrea wants to represent herself, does she have a right to do so? Is self-representation generally a good idea?
How can Andrea find a lawyer if she’s in jail?
What’s the difference between private lawyers and public defenders?
If Andrea is represented by a lawyer, does the lawyer make all the decisions?
If Andrea talks to the lawyer while she’s in jail, is their conversation confidential?
What does it mean for the government to have to provide Andrea with “due process of law”?
See Chapter 7, Criminal Defense Lawyers, Chapter 8, Understanding the Attorney-Client Relationship in a Criminal Case, and Chapter 17, Fundamental Trial Rights of the Defense.
Multiple Coverage of Some Subjects
As you read through the book, you may notice that the same topic may arise in more than one chapter. For example, we refer to “motions in limine” in Chapters 19 and 21. We do this to reduce cross-referencing and to help readers who want to read about a particular part of the criminal justice process before reading the book from beginning to end.
Suspecting that Andrea was the culprit who had robbed a convenience store a short time before her arrest, Officer Daniels and another police officer question Andrea about her whereabouts at the time of the robbery.
What are the “Miranda rights” that police officers often read to suspects?
If the police fail to warn Andrea of her Miranda rights, does the case have to be thrown out?
If Andrea starts talking to the police before they can warn her about her Miranda rights, can what she says be used against her in court?
See Chapter 1, Talking to the Police.
Officer Daniels asks Andrea to participate in a lineup to determine whether the store owner who was robbed at gunpoint, Hilary Julia, is able to identify Andrea as the robber.
What happens at a lineup?
Does Andrea have to participate in the lineup?
Instead of conducting a lineup, could the police have shown the store owner a picture of Andrea?
If Andrea has a lawyer, does she have the right to have her lawyer attend the lineup?
Can the police compel Andrea to speak during the lineup?
See Chapter 4, Eyewitness Identification: Psychology and Procedures, and Chapter 17, Fundamental Trial Rights of the Defense.
Andrea’s answers to Officer Daniels’s questions lead the officer to suspect that evidence linking Andrea to the robbery is inside her home (such as some of the loot and a cap that the robber wore during the robbery). Officer Daniels wants to get hold of this evidence.
Does the officer need to obtain a search warrant before entering Andrea’s home?
If the officer legally enters Andrea’s house looking for evidence connecting her to the robbery and finds illegal drugs, can the officer seize the drugs and charge Andrea with another crime?
If the officer enters Andrea’s house illegally, does the case against her have to be dismissed?
See Chapter 2, Search and Seizure.
Andrea is formally charged with armed robbery.
Does Officer Daniels make the decision about whether to charge Andrea with a crime?
How long does the government have to decide whether to charge Andrea with a crime?
Does the prosecutor have to seek an indictment from a grand jury?
What does the prosecution have to prove to convict Andrea of armed robbery?
See Chapter 6, From Suspect to Defendant, and Chapter 12, Crimespeak: Understanding the Language of Criminal Laws.
Andrea is taken to court and “arraigned” on the armed robbery charge.
What will the courtroom be like?
If Andrea doesn’t have a lawyer yet, what should she do? Can she represent herself?
What happens at an arraignment?
Is the arraignment judge authorized to release Andrea from jail?
See Chapter 9, A Walk Through Criminal Court, and Chapter 10, Arraignments.
Andrea tells the arraignment judge that she wants a lawyer but can’t afford to hire one, so the judge appoints a lawyer to represent her.
Will the attorney ask Andrea to tell her side of the story?
Can the attorney do anything to help Andrea if she tells the attorney that she committed the robbery?
What kinds of legal challenges can a defense attorney make before a case goes to trial?
Does the lawyer have to keep everything Andrea says confidential?
What decisions about her case does Andrea have the right to make?
See Chapter 8, Understanding the Attorney-Client Relationship in a Criminal Case, Chapter 11, Developing the Defense Strategy, and Chapter 19, Motions and Their Role in Criminal Cases.
Andrea’s lawyer talks to her about the possibility of entering into a plea bargain.
What rights would Andrea give up by pleading guilty?
Can her lawyer insist that Andrea enter into a plea bargain?
What does Andrea have to gain by pleading guilty?
What factors will influence any “deal” that Andrea is offered?
What is the judge’s role in the plea bargaining process?
See Chapter 10, Arraignments, and Chapter 20, Plea Bargains: How Most Criminal Cases End.
Andrea pleads not guilty at the arraignment, and decides that even though she has a lawyer she should try to find out more about the crime she’s charged with.
Andrea’s lawyer tells her that robbery is a specific intent crime. What does “specific intent” mean, and how will the prosecutor try to prove it?
What are the possible defenses that Andrea can raise at trial?
See Chapter 11, Developing the Defense Strategy, Chapter 12, Crimespeak: Understanding the Language of Criminal Laws, and Chapter 13, Defensespeak: Common Defenses to Criminal Charges.
At the conclusion of Andrea’s arraignment, the judge schedules a date for a preliminary hearing.
What is the purpose of a preliminary hearing?
Do Andrea and her lawyer have a right to be present at the preliminary hearing?
How can a preliminary hearing benefit the defense?
See Chapter 16, Preliminary Hearings.
At the conclusion of Andrea’s preliminary hearing, the judge finds there is probable cause to try her for robbery and sets her case for trial. Andrea’s attorney tells her, “I’ll continue gathering information in preparation for trial.”
Does the prosecutor ever have to turn information over to the defense?
Does the defense ever have to turn over information to the prosecutor?
Does the defense have a right to interview prosecution witnesses?
What can Andrea do to help her attorney investigate the case?
See Chapter 14, Discovery: Exchanging Information With the Prosecution, and Chapter 15, Investigating the Facts.
Though most cases end with dismissals or guilty pleas before trial, Andrea’s case does go to trial.
Why does the prosecution get to present its evidence first?
What is the hearsay rule?
If Andrea testifies, can the prosecutor offer evidence of her previous illegal conduct?
Is Andrea entitled to a jury trial?
Can the prosecution force Andrea to testify?
Does Andrea have to convince the judge or jury of her innocence?
See Chapter 17, Fundamental Trial Rights of the Defense, Chapter 18, Basic Evidence Rules in Criminal Trials, and Chapter 21, The Trial Process.
Andrea is found guilty of armed robbery and a date is set for sentencing.
What happens at a sentencing hearing?
How might Andrea be punished other than or in addition to going to jail?
What factors are likely to affect Andrea’s sentence?
What can Andrea do to earn the lightest possible sentence?
If, after she’s been found guilty, Andrea uncovers for the first time an important witness who supports her alibi defense, what can she do?
See Chapter 19, Motions and Their Role in Criminal Cases, and Chapter 22, Sentencing.
Andrea believes that her conviction was a mistake and wants to appeal it.
How do appellate court judges find out about what took place at Andrea’s trial?
Will appellate court judges consider Andrea’s argument that the jury shouldn’t have believed the prosecutor’s witnesses?
If the trial judge made an error of law, will the appellate court necessarily overturn Andrea’s conviction?
See Chapter 23, Appeals.
The conviction is overturned because the judge mistakenly barred certain evidence from the trial. Andrea is retried and this time is found not guilty.
Can the prosecutor appeal the not guilty verdict to a higher court?
Can the prosecutor refile the armed robbery charge in the future if new evidence turns up?
Can the prosecutor ask the judge to order a new trial on the ground that the jurors afterwards said that they thought that Andrea was guilty but that she didn’t deserve punishment?
See Chapter 13, Defensespeak: Common Defenses to Criminal Charges, Chapter 17, Fundamental Trial Rights of the Defense, and Chapter 19, Motions and Their Role in Criminal Cases.
Andrea’s conviction and five-year prison sentence are upheld on appeal, so Andrea has to serve time in state prison.
Can Andrea do anything to improve bad prison conditions?
If Andrea has a child, will she lose custody of her child?
Can Andrea vote while she is in prison or after she is released?
Can Andrea earn money while she is in prison?
Does Andrea have a chance to be released early on parole?
See Chapter 27, Prisoners’ Rules.
Comparison of Federal and State Systems
The vast majority of criminal prosecutions take place in state courts. The list below highlights some of the key differences between state and federal criminal systems:
Jurisdiction (“power” to decide cases). A state has power over defendants who violate the laws of that state. The federal government has power over defendants who commit criminal acts on federal property (for example, an assault in a national park) or whose criminal acts cross state lines (for example, a kidnapper who transports a victim from Iowa to Missouri or a seller who deals in drugs that have crossed state lines). The federal government also has jurisdiction over a group of federally defined crimes, such as offenses related to immigration fraud, U.S. customs violations, and government violation of federal rights. It also has jurisdiction where, for example, someone tries to steal federally insured money. A state and the federal government can
have “concurrent” power over a defendant when the same criminal activity violates both state and federal laws (for example, selling drugs or robbing banks). In those situations, state and federal prosecutors make case-by-case decisions as to whether a defendant will be prosecuted in state or federal court. In fact, sometimes both the state and the federal governments prosecute the same defendant.
Police Officers. Typical state police officers are county sheriffs and city police officers. Typical federal police officers are agents of the FBI and DEA (Drug Enforcement Administration).
Prosecutors. Federal criminal prosecutions are handled by U.S. attorneys, who are appointed by and are ultimately responsible to the U.S. Attorney General. State prosecutors, many of whom are elected on a countywide basis, carry a variety of titles: Common ones are district attorney, state’s attorney, and city attorney.
Defense Attorneys. Most criminal defendants qualify for government-paid defense attorneys. Government-paid attorneys are usually employed either by an office of the Federal Public Defender or a county’s Public Defender office. (For information about the differences between government-paid and privately retained defense attorneys, see Chapter 7.)
Trial Courts. Most federal criminal prosecutions occur in United States District Courts. State courts carry such titles as “superior court,” “municipal court,” “police court,” or “county court,” depending on the state and the seriousness of criminal charges.
Judges. Federal trial judges are known as District Court judges; they are appointed for life by the president, subject to confirmation by the U.S. Senate. State court judges are typically initially appointed by governors and
then are subject to election every few years. State court trial judges carry such titles as Superior Court Judge, Municipal Court Judge, and (in New York) Supreme Court Judge. In both state and federal courts, magistrates may preside over pretrial hearings, such as bail hearings, as well as less serious criminal trials.
All-Purpose vs. Specialized Judges. Federal courts use the “all-purpose judge” system. This means that the same judge almost always presides over a case from beginning to end—that is, from a defendant’s first court appearance to final acquittal or sentencing. Some states also follow the all-purpose judge model. In many states, however, judges are specialized. For example, one judge may determine bail (see Chapter 5), another judge may hear pretrial motions (see Chapter 19), and a third judge may preside over a trial (see Chapter 21).
We hope you enjoyed this material. The rest of this book is available for purchase.