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You are here: Information Center >> Criminal Law >> How The Criminal Process Begins

How The Criminal Process Begins

The criminal process begins with the commission of a crime and an arrest of the individual who is believed to have engaged in the criminal act. Depending on the facts and evidence, the individual is then charged with a misdemeanor or felony. The city, county, state or country where the crime occurred brings the charge. All states, and the federal government, have a criminal code, setting out and defining criminal acts that are prohibited by law. Not every act is illegal or criminal—the commission or existence of a crime is dependent upon state and federal definitions of offenses. Unless the facts of the situation meet the definition, the conduct is not criminal.

Crimes are categorized as either misdemeanors or felonies. The distinction is important because the penalty imposed is based on the classification of the crime in one of these two categories.

Misdemeanors:

Misdemeanors are crimes in which imprisonment of not more than 1 year may be imposed. Misdemeanor offenses are punishable by fine, incarceration in a local jail, or both. They are less serious crimes and typically occur because of "fault or omission" on the part of a person, rather than an intent to injure. Additionally, misdemeanors are further classified in order of their severity. For example, a state may have class A, B and C offenses, all having different punishments.

SIDEBAR: Many states have laws making the commission of a second or third misdemeanor result in a felony charge, commonly known as the "three strikes" rule. For example, retail theft or shoplifting may be a misdemeanor crime if the value of the items is less than $150. However, the crime is converted into a felony on the third arrest, although the items are still worth less than $150.

Many persons believe that if they are charged with a criminal offense, they have an absolute right to a jury trial. However, it is important to understand that the defendant on trial for a misdemeanor offense does not have a constitutional right to a jury trial where the penalty is less than 6 months of incarceration. Many states allow the judge or magistrate of a misdemeanor court to determine guilt or innocence to avoid the expense and time required in jury trials.

SIDEBAR: California has a "wobbler" statute concerning offenses that are punishable by either a state prison sentence or time in the county jail (termed a "felony/misdemeanor offense"). The characterization of the crime as a misdemeanor or felony depends on the sentence, rather than the actual charge. For example, a person charged with felony unauthorized practice of medicine and sentenced to a year or less in county jail is not a convicted felon. The felony charge has become a misdemeanor conviction because she was sentenced to county jail, instead of prison.

Felonies:

Felonies are the severest of crimes and are usually punishable by at least a year’s incarceration in a federal or state penitentiary. Fines may also be imposed. In many states and in federal courts, a person convicted of a felony can be sentenced to death.

Felonies are categorized by degrees based on their seriousness, such as "first-degree" murder. Each state has different degrees of felonies depending on the facts of the case. For example, a murder is considered to be a first-degree murder if the murderer had a premeditated plan, but only a second-degree murder if the killing occurred without actual premeditation. A murder that occurs because an argument gets out of hand is second-degree murder.

SIDEBAR: A criminal act can be both a felony and a misdemeanor. However, a defendant may only be charged with a felony or a misdemeanor (but not both) where a single transaction is at issue. For example, if the evidence against a suspect in a home invasion is weak, the prosecutor may drop the felony charge of burglary and instead charge him with the lesser misdemeanor offense of trespass; but the prosecutor may not try the suspect on both counts.

Attempting a Crime

In some situations, a crime is not actually carried out, but only attempted because the person failed to complete the criminal act or was foiled in his attempt. However, it is still a crime to merely attempt or prepare for a criminal act. A person attempting to manufacture drugs may be criminally charged and convicted, even if the attempt was unsuccessful.