Suspect to Defendant: Facing Criminal Charges

To be "charged" with a crime means to be formally accused of that crime. Police officers usually start the charging process with an arrest or citation. They then send copies of their reports to a prosecutor’s office staffed by government lawyers whose job it is to initiate and prosecute criminal cases. The prosecutor is supposed to either:

• make an independent decision as to what charges should be filed, or
• enlist the help of citizens serving as grand jurors in deciding what charges to file.

Learn about how criminal charges are chosen and filed.

The Hallmarks of a Criminal Case

A criminal case takes place when the government seeks to punish someone for an act that has been classified as a crime by Congress or a state legislature. A civil case, on the other hand, usually involves a dispute over the rights and duties that people and organizations legally owe to each other (for example, business disputes, consumer disputes, and family law matters). Among the important differences between criminal and civil cases are these:

Who controls the case? In a criminal case, a prosecutor, not the victim, institutes and controls the case. The prosecutor may file criminal charges even if the victim doesn’t approve, or may refuse to file criminal charges despite the victim’s desire that criminal charges be filed. This method of initiating the case contrasts with civil cases, where the injured party is the one who decides whether to sue and starts the ball rolling (although if you view the prosecutor as a stand-in for the community injured by a crime, then there’s not much difference).

Civil cases don't result in jail sentences. People convicted of crimes may pay a fine or be incarcerated or both. People held liable in civil cases may have to pay money damages or give up property, but do not go to jail or prison. (We don’t have debtors’ prisons for those who can’t pay a civil judgment.)

Who pays the lawyers? In criminal cases, government-paid lawyers represent defendants who want but can’t afford an attorney. Parties in civil cases, on the other hand, usually have to represent themselves or pay for their own lawyers.

What's the burden of proof? In criminal cases, the prosecutor has to prove a defendant’s guilt beyond a reasonable doubt. In a civil case, the plaintiff only has to show by a preponderance of the evidence that the defendant is liable for damages.

Who gets a jury? Defendants in criminal cases almost always are entitled to a jury trial. A party to a civil action is entitled to a jury trial in some types of cases, but not in others.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

What Are Felonies, Misdemeanors, and Infractions?

The seriousness of a charge depends on whether it’s a felony, misdemeanor, or infraction.

Levels of Offenses

Felonies are the most serious kinds of crimes. Generally, a crime is considered a felony when it is punish­able by more than a year in a state prison (also called a penitentiary). Examples of felonies are murder, rape, burglary, and the sale of illegal drugs.

Misdemeanors are less serious crimes, and are typically punishable by up to a year in county jail. Common misdemeanors include shoplifting, drunk driving, assault, and possession of an unregistered firearm. Often, an offense that is a misdemeanor the first time a person commits it becomes a felony the second time around.

Infractions are still less serious violations, like those involving traffic laws, which typically subject a person to nothing more than a monetary fine. Defendants charged with infractions usually have no right to a jury trial or a court-appointed lawyer. But repeat offenders, even when the offense is a mere infraction, may face stiffer penalties or charges.

Municipal laws, also called ordinances, are enacted by and effective only in a particular city or county. For example, a city ordinance may forbid overnight parking or prohibit smoking in elevators. Violators of municipal laws are typically fined.

When The Prosecutor Has a Choice: Wobblers

Prosecutors and judges sometimes are authorized by a criminal statute to treat the criminal behavior defined in the statute as either a felony or a misdemeanor. Such crimes are often referred to as “wobblers.” For example, under a wobbler statute that allows assault to be charged as a felony or a misdemeanor, the prosecutor usually will decide which charge to bring on the basis of the severity of the injury to the victim and the nature of the defendant’s intent and past criminal record. Similarly, after hearing evidence of a crime charged as a felony under such a statute, a judge may decide(on her own or in response to a defense request) to reduce the charge to a misdemeanor.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.