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Criminal Procedure FAQ

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

The presumption of innocence is a cornerstone of the American legal system and a foundational principle of criminal law procedures. This presumption shifts the burden of proof onto the prosecution to affirmatively prove that you committed the criminal act. This has several ramifications that may not be apparent at first glance.

First, it means that you won't be constantly harassed by the state filing criminal charges against you that required you to prove your innocence. Without the presumption of innocence, there would be little to prevent the state from charging you with crimes and forcing you to constantly prove your innocence. With the presumption in place, the state has an incentive to only bring charges against those it actually believes committed a crime.

Second, it means you don't have to say a single thing, or prove a single thing in your defense. You could be silent the entire trial and put on no defense whatsoever, and unless the prosecution can prove that you committed the crime, you should be judged not guilty.

See Defending Yourself Against a Criminal Charge for more information about the prosecution's burden of guilt and defendants' presumption of innocence. 

What is the standard for guilt in a criminal trial?

Most criminal offenses must be proven "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 were created intentionally, because the American legal system is founded on the idea that it is better to let a guilty man go free than convict an innocent man.

In civil cases, there are much lower standards of proof such as the "preponderance of evidence", which may be oversimplified as a "more likely than not" standard. Beyond a reasonable doubt, however, means that the judge and jury are supposed to resolve all possible doubts about the defendant's guilt, and conclude that there is no other reasonable conclusion but that the defendant must have committed the crime. Accordingly, most defendants try to establish plausible alternative theories about the prosecution's theory of guilt in order to raise reasonable doubts about the truth of the charges.

Am I guaranteed a trial by 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 and do not necessarily give you the right to a trial by jury. Juries typically range in size from six to twelve members, and the size often reflects the seriousness of the crime. Finally, jury convictions must usually be unanimous, meaning that all jury members must agree. There are exceptions in a few states where only ten out of twelve jury members can vote to convict the defendant.

If a defendant is not guilty, why wouldn't he or she testify?

Most Americans are familiar with defendants "pleading the 5th", but may not be as familiar with what "taking the 5th"really means. The 5th Amendment gives criminal defendants the right to decline to testify and requires that jurors be instructed that they can't assume the defendant's guilt by the their silence.

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

  • By taking the stand and testifying, the defendant opens up his or her past to questioning by the prosecution. This means that the prosecution can bring up information to discredit or tarnish the defendant's reputation and believability.
  • If a defendant testifies, a prosecutor may be able to bring up past crimes.
  • The defendant may be a poor public speaker, seem angry, or even worse, nervous, which many jurors infer means the defendant is guilty of something.
  • The defendant is simply not a "likeable" person, and the defense attorney does not want the client being convicted for his or her personality.

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

Generally, 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 and are often punished by making the defendant pay a fine and sometimes serve jail time, but typically less than a year. Many crimes can be charged as either a felony or misdemeanor, depending on the severity of the crime and the prosecutor's inclination. Finally, conduct punished only by a fine is typically not a crime at all, but rather an infraction (such as a traffic violation).

See What Distinguishes a Misdemeanor from a Felony? for more details. 

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

If it seems like a defendant is simply not capable of understanding what the state is accusing them of and is unable to assist their attorney in their defense, then a judge may order an evaluation of the defendant. The evaluation will be performed by a psychological professional who is practiced as detecting deception since many defendants may feign mental illness to avoid punishment.

If a defendant is declared incompetent, it does not mean that they can simply go free. Instead, it means that the defendant will be placed into a secure mental hospital, rather than a jail, until the defendant is deemed competent to stand trial.

See FindLaw's Insanity Defense section for more information. 

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

Most criminal statues have two essential pieces, the physical act and the mental act. Accordingly, you can break down almost any criminal statute into the physical acts that must be proven, and the mental state required (often referred to as the "intent"). For example, here is a common definition of a criminal assault:

"An act with the intent to cause fear in another of immediate bodily harm or death."

First, there must 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.

At trial, a prosecutor would have to prove that you performed some physical act, with the intent to significantly hurt someone. This means that even if you did something that caused the fear listed in the statute above, if you never specifically intended to cause that fear, then you have not committed an assault under the above definition.

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