Criminal Procedure FAQ

Criminal procedure is an intricate process and rule system that raises common questions among most individuals.

This article will answer some of the most common questions concerning criminal procedure and the criminal justice system.

Frequently Asked Questions About Criminal Procedure

• What does it mean that I am presumed innocent until proven guilty?
• Who has the burden of proof in a criminal trial?
• Am I guaranteed a trial by jury?
• If a defendant is not guilty, why wouldn't they testify?
• What's the difference between a felony and a misdemeanor?
• What does it mean that a defendant is incompetent to stand trial?
• How can I read a criminal statute to understand what a prosecutor must prove?
• Questions About Criminal Procedure? Ask an Attorney

What does it mean that I am presumed innocent until proven guilty?

If you are presumed innocent until proven guilty, the judge and jury must assume you are innocent until the prosecutor proves otherwise. This goes hand in hand with the concept of due process.

The presumption of innocence until proven guilty, along with the due process clause, helps a defendant have a fair trial. You won't be constantly harassed by the state filing criminal charges against you that require you to prove your innocence.

Without the presumption of innocence, there would be little to prevent the state from charging you with crimes and constantly forcing you to prove your innocence. With the presumption in place, the state should only bring charges where it believes there is sufficient evidence to prove that a suspect committed a crime because the burden of proof rests with the state.

Second, having the presumption of innocence in place means you don't have to say a single word or prove a single thing in your defense. You could be silent the entire trial and put on no defense whatsoever. You are not even required to submit a guilty plea and can submit a plea of no contest. Unless the prosecution can prove that you committed all of the required elements of the crime beyond a reasonable doubt, you should be judged not guilty.

People Also Search For:

• Is Pleading No Contest Different from Guilty?
• Defending Yourself Against a Criminal Charge
• How To Find Free Case Law Online

Who has the burden of proof in a criminal trial?

The burden of proving a defendant's guilt for a criminal offense rests with the prosecution. The prosecution must establish that the defendant is guilty beyond a reasonable doubt.

Coupled with the presumption of innocence, this is a very high standard for the prosecution to prove. These criminal law procedures exist intentionally because the American legal system believes letting a guilty man go free is better than convicting an innocent man.

Most defendants try to establish plausible alternative theories about the prosecution's theory of guilt to raise reasonable doubts about the truth of the charges.

People Also Search For:

• Who Has the 'Burden of Proof'? 3 Things You Should Know
• Standard of Proof

Am I guaranteed a trial by jury?

The Sixth Amendment states that in all criminal prosecutions, the defendant shall have the right to a speedy and public trial by an impartial jury.

Generally, you are guaranteed a right to trial by jury for criminal offenses that carry a penalty of more than six months of imprisonment. Crimes that are punishable by less than six months are often considered petty crimes. These misdemeanor cases do not necessarily give you the right to a speedy trial by jury.

Juries typically range in size from six to 12 members, often reflecting the crime's seriousness. Finally, jury convictions must usually be unanimous, meaning all members must agree. There are exceptions in a few states where only 10 of 12 jury members must agree to convict the defendant.

People Also Search For:

• What's the Difference Between a Grand Jury and a Trial Jury?
• Baldwin v. New York, 399 U.S. 66 (1970)

If a defendant is not guilty, why wouldn't they testify?

Criminal defendants have a constitutional right against self-incrimination. A non-guilty defendant may choose not to testify for various reasons, but the main one is to avoid saying something that would make them appear guilty to a jury.

Some Americans are familiar with defendants pleading the Fifth but may not know what that means. The Fifth Amendment gives criminal defendants the right to decline to testify during their criminal case and requires that jurors be instructed not to assume the defendant's guilt by their silence.

This instruction is crucial because there is a natural tendency to assume that the defendant has done something wrong by not testifying. Instead, the defendant may have been instructed by their appointed counsel not to testify because:

• By taking the stand and testifying, the defendant opens up his or her past to questioning by the prosecution. The prosecution can bring up information to discredit or tarnish the defendant's reputation and believability.
• The defendant may be a poor public speaker and seem angry, callous, or nervous. This may cause jurors to believe that the defendant is guilty of something.
• The defendant is not a likable person, and the defense attorney does not want the client convicted for their personality.

People Also Search For:

• Fifth Amendment Grand Jury, Self-Incrimination, and Due Process Protections

What's the difference between a felony and a misdemeanor?

Generally, in criminal procedure, a felony is considered a more severe crime, and as a result, the defendant is given more jail time — typically a year or more. In contrast, misdemeanors are considered lesser crimes, often punished by making the defendant pay a fine and sometimes serve jail time. Typically, misdemeanors are only eligible for less than a year of jail time.

Many crimes can be charged as either a felony or misdemeanor, depending on the severity of the crime and the prosecutor's inclination. Defendants may also be subjected to community service by court order if they are first-time offenders or guilty of a misdemeanor.

Conduct punished only by a fine is typically not a crime but rather an infraction (such as a traffic violation).

People Also Search For:

• Felonies
• What's the Difference Between a Misdemeanor vs. Felony?
• Misdemeanor Charges 101: Flexible Treatment, Federal Treatment, and Consequences

What does it mean that a defendant is incompetent to stand trial?

A defendant declared incompetent will be placed into a secure mental hospital rather than jail until the defendant is deemed competent to stand trial at a later court date. The court may release the defendant on conditional release if they are not serving a prison sentence. The court has jurisdiction over the defendant while they are under involuntary commitment or conditional release.

If a defendant is incapable of understanding what the state is accusing them of, then a judge may order an evaluation of the defendant. The evaluation will be performed by a psychological professional with experience in detecting deception since defendants may feign mental illness to avoid punishment.

If the defendant does not respond to treatment at their facility and is deemed non-restorable, they must be released or civilly committed under the Baker Act. This occurs regardless if the defendant is involved in a felony case or misdemeanor case.

People Also Search For:

• Can Someone Declared Incompetent Stand Trial Later?
• Legal How-To: Declaring Someone Incompetent
• Involuntary Commitment: Patient and Public Rights
• Florida Statutes Title XLVII. Criminal Procedure and Corrections § 916.15. Involuntary commitment of defendant adjudicated not guilty by reason of insanity
• Florida Statutes Title XLVII. Criminal Procedure and Corrections § 916.17. Conditional release

How can I read a criminal statute to understand what a prosecutor must prove?

Most criminal statutes have two essential parts: the physical act and the mental act. Accordingly, you can break down almost any criminal statute into the physical acts and the mental state/intent required. For example, here is a standard definition of criminal assault: "An act with the intent to cause fear in another of immediate bodily harm or death."

First, there must be a physical act that took place. Second, that act must have been undertaken with the intention (the mental state) to cause fear or immediate bodily harm or death in another.

If a gunman held a gun to a crime victim's head, then holding the gun to that person's head would be the physical act. A gun is a deadly weapon, so the gunman intends to cause fear of immediate bodily harm or death to get the victim to comply with the criminal's demands.

At trial, a prosecutor would have to prove that you performed some physical act with the intent to hurt someone significantly.

People Also Search For:

• Understanding Criminal Statutes
• Understanding Criminal Law -- How to Break Down a Criminal Statute
• A Guide to Reading, Interpreting, and Applying Statutes

Questions About Criminal Procedure? Ask an Attorney

The legal process is extraordinarily complicated and can vary greatly depending on your case's charges, jurisdiction, and facts. Competent legal advice can help you understand what you're up against, no matter your criminal record.

There are various terms that people have trouble understanding or remembering, although they are all part of criminal procedure.

Typical questions may include:

• What is law enforcement's role other than executing arrest warrants? Will my arresting police officer show up to my trial date?
• Can a law enforcement officer or law enforcement agency search my belongings with probable cause, or do they need a search warrant?
• Can my criminal history affect my chances of getting a plea agreement?
• What's the difference between a circuit court, district court, state court, supreme court, and federal court? More importantly, why are there so many courts?
• Is a decision by a trial court final, or can an appellate court change it or request a new trial?
• What is the difference between a docket, arraignment, subpoena, acquittal, and expungement?
• How can I prepare for a preliminary hearing?
• Is my DUI a felony or a misdemeanor? 
• Is it better to hire a private attorney or wait for a court-appointed public defender?

Although a court-appointed public defender can help you navigate these questions, many of them are often overworked and underpaid. If you need more individual attention, consider hiring a private criminal defense attorney to help you with your case.

If you have any questions about criminal procedure or are preparing for a court appearance, contact an experienced criminal defense attorney today.