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An infraction in a legal sense is a “petty” violation of the law less serious than a misdemeanor, and usually does not attach certain individual rights such as a jury trial. It is sometimes called a minor offense, minor violation, petty offense, or frequently citation, and sometimes used as synonymous with violation, regulatory offense, welfare offense, or contravention.
Typically, an infraction is a violation of a rule or local ordinance or regulation
Some refer to an infraction as quasi-criminal, because conviction for an infraction is generally not associated with the loss of liberty, and are often considered civil cases. Nonetheless, most infractions are indeed violations of statutory law, but in differing with criminal law where the burden of proof is “beyond a reasonable doubt,” the standard for the civil infraction differs from jurisdiction to jurisdiction, some jurisdictions require proof beyond a reasonable doubt while others may only require proof by a “preponderance of the evidence.”
The key characteristic of an infraction is that the punishment seldom includes any amount of incarceration in a prison or jail or any other loss of civil rights – typically the only punishment is a fine, although sometimes other regulatory actions are possible (e.g. revocation of a license or permit) or an order to remedy or mitigate the situation. According to the USC title 18 Part II Chapter 227 the fine for an infraction is not to exceed $5000 (although normally less then $1000) and the maximum prison sentence is 5 days of incarceration, and common law puts the maximum incarceration at 6 months for local jurisdictions.
Examples of infractions include jaywalking, littering, violations of municipal codes (such as building or housing), disturbing the peace, or falsification of information. In many jurisdictions today, minor traffic violations have been decriminalized and classified as infractions. For example, in Kern County, California (a county in which Interstate 5 crosses its western edge), large numbers of speeders are ticketed every year while travelling between the Los Angeles Area and the San Francisco Bay Area for excess of 100mph. This is generally considered an infraction resulting in only a fine. In the state of Oregon, possession of less than one ounce of cannabis (marijuana) is an infraction rather than a crime.
Nowadays, many jurisdictions allow first time offenses for minor misdemeanors including trespassing, petty theft, disorderly conduct, and marijuana possession to be reduced to infractions, or municipal ordinance violations, allowing the defendant to avoid having a criminal record which would otherwise jeopardize his long term prospects. This is particularly true if the defendant received only a citation instead of being arrested. However, by allowing a first time misdemeanor offense to be reduced to an infraction, this could also serve as an aggravating factor if the person were to be caught committing another crime. And most likely will result in jail or prison time.
A misdemeanor is a “lesser” criminal act. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions (also known as regulatory offenses). Many misdemeanors are punished with monetary fines. Usually only repeat misdemeanor offenders are punished by actual jail time. It is highly unlikely that a first time misdemeanant will serve any jail time. It is likely that if one is convicted of a misdemeanor that it will be expunged.
In the United States, the federal government generally considers a crime punishable with incarceration for one year or less to be a misdemeanor. All other crimes are felonies. Many states also follow this.
In some jurisdictions, those who are convicted of a misdemeanor are known as misdemeanants (as contrasted with those convicted of a felony who are known as felons). Depending on the jurisdiction, examples of misdemeanors may include: petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespass, vandalism, drug possession, DUI and other similar crimes. In the United States, misdemeanors are crimes with a maximum punishment of 12 months of incarceration, typically in a local jail (again, as contrasted with felons, who are typically incarcerated in a prison). Those people who are convicted of misdemeanors are often punished with probation, community service or part-time imprisonment, served on the weekends.
Within classes of offenses, the form of punishment can vary widely. For example, the US federal government and many U.S. states divide misdemeanors into several classes, with certain classes punishable by jail time and others carrying only a fine. When a statute does not specify the class, it is referred to as an unclassified misdemeanor. Sometimes this is done when legislators wish to impose a penalty that falls outside the framework specified in the classes. For instance, Virginia has four classes of misdemeanors, with Class 1 and Class 2 misdemeanors being punishable by twelve-month and six-month jail sentences, respectively, and Class 3 and Class 4 misdemeanors being non-jail offenses payable by fines; but first-time marijuana possession is an unclassified misdemeanor punishable by serving up to 30 days in jail.
Felony crimes are considered by society as the most serious of criminal offenses. Crimes commonly considered to be felonies include, but are not limited to: aggravated assault and/or battery, arson, burglary, illegal drug abuse/sales, embezzlement, grand theft, tax evasion, treason, espionage, racketeering, robbery, murder, rape, kidnapping and fraud. Broadly, felonies can be categorized as either violent or non-violent (property, drug, white-collar) offenses.
Some offenses, though similar in nature, may be felonies or misdemeanors depending on the circumstances. For example, the illegal manufacture, distribution or possession of controlled substances may be a felony, although possession of small amounts may be only a misdemeanor. Possession of a deadly weapon may be generally legal, but carrying the same weapon into a restricted area such as a school may be viewed as a serious offense, regardless of whether or not there is intent to use the weapon.
“The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories.”
In some states, felonies are also classified (class A, B, etc.) according to their seriousness and punishment. In New York State, the classes of felonies are E, D, C, B, A-II, and A-I (the most severe). Others class felonies numerically, e.g., capital, life, 1st degree, 2nd degree, 3rd degree, state jail or class 1, 2, etc. (VA). The number of classifications and the corresponding crimes vary by state and are determined by the legislature. Usually, the legislature also determines the maximum punishment allowable for each felony class; this avoids the necessity of defining specific sentences for every possible crime.
Criminal Process and Procedure
Investigation and Arrest
The criminal justice process typically begins when a police officer places a person under arrest. An “arrest” occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is “under arrest”, and the suspect submits without the officer’s use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person’s voluntary or involuntary submission.
A police officer may usually arrest a person in the following circumstances:
- The Police Officer Personally Observes a Crime
- If a police officer personally sees someone commit a crime, the officer may arrest that individual. For example:
- While on street patrol, a police officer sees a purse snatching take place. The officer can apprehend and arrest the purse-snatcher, based on the officer’s personal observation of a theft/larceny or robbery.
- A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver’s alcohol intoxication level is more than twice the state’s legal limit for safe operation of a vehicle. The police officer can arrest the driver for DUI/DWI.
The Police Officer Has “Probable Cause” to Arrest
When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime, the officer may arrest that person. This belief, known as “probable cause,” may arise from any number of different facts and circumstances. For example:
A police officer receives a report of an armed robbery that has just occurred at a liquor store, then sees a man who matches the suspect’s exact description running down the street near the store. The officer detains and searches the man, finding a gun and a large amount of cash in his pockets. The officer can arrest the man, based on a probable cause belief that he committed a robbery.
An Arrest Warrant Has Been Issued
When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically: Identifies the crime(s) committed;
- Identifies the individual suspected of committing the crime;
- Specifies the location(s) where the individual may be found; and
- Gives a police officer permission to arrest the person(s) identified in the warrant.
Custody and Booking
After arrest, a criminal suspect is usually taken into police custody and “booked,” or “processed.” During booking, a police officer typically:
Takes the criminal suspect’s personal information (i.e., name, date of birth, physical characteristics);
Records information about the suspect’s alleged crime;
Performs a record search of the suspect’s criminal background;
Fingerprints, photographs, and searches the suspect;
Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect’s release; and
Places the suspect in a police station holding cell or local jail.
(Note: persons arrested for minor offenses may merely be given a written citation and released, after signing the citation and promising to appear in court at a later date.)
For criminal suspects who are placed in jail, the first priority is usually getting out. Except when very serious crimes are charged, a suspect usually can obtain pre-trial release through bail or “own recognizance” release.
After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom-based proceedings takes place — arraignment. During a typical arraignment, a person charged with a crime is called before a criminal court judge, who:
Reads the criminal charge(s) against the person (now called the “defendant”);
Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
Asks the defendant how he or she answers, or “pleads to”, the criminal charges — “guilty,” “not guilty,” or “no contest”;
Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and
Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.
Also at the preliminary hearing, the prosecutor will give the defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, in a DUI/DWI or drug possession case, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and may be used in the case.
The Right to Counsel
If a criminal defendant faces the possibility of jail time if convicted for the crime(s) charged, the defendant has a constitutional right to the assistance of an attorney, or “counsel.” If the defendant wishes to be represented by an attorney but cannot afford to hire one, a government-appointed attorney will be assigned at no cost to the defendant. Usually employed as “public defenders”, these government-appointed defense attorneys are responsible for zealously protecting a criminal defendant’s rights at all stages of the criminal process.
Most jurisdictions have a series of Diversionary Programs that avoid a criminal trial and the possibility of being found guilty of the criminal charges one faces. In addition to making a plea-bargain or plea-agreement with the prosecutor, the following options may be available to the accused.
The Accelerated Pretrial Rehabilitation Program (AR)* can be used by certain people charged with crimes or motor vehicle violations that are not serious, but for which there can be a sentence of imprisonment. This program may not be used by people charged with certain felonies, those who have been convicted of crimes in the past, or those who are eligible for or used certain other programs like AR in the past, such as the Family Violence Education Program or the Pretrial Drug Education Program.
Before being given AR, the defendant must notify the victim, if there is a victim, using a certain court form. The victim can give the court his or her opinion about the defendant’s application to the AR program.
If the court grants the defendant’s application for AR, the defendant is released to the custody of the Court Support Services Division (CSSD) to be supervised for up to 2 years.
If the defendant finishes the AR program successfully, the charges against the defendant are dismissed by the court.
The AR program requires an application fee of $35 and a program fee of $100 although the court may decide that the defendant does not have to pay those fees. If the defendant is ordered to take part in a hate crimes program as a condition of AR, the program fee is $425.
*Section 54-56e of the General Statutes9
Supervised Diversionary Program
The Supervised Diversionary Program* can be used by certain people who have psychiatric disabilities who are charged with crimes or motor vehicle violations that are not serious, but for which there can be a sentence of imprisonment. This program cannot be used by people who have used the program 2 times in the past or by people who cannot use the pretrial program for accelerated rehabilitation (AR).
When a person applies for this program, the court will send notice to the victim of the crime or motor vehicle violation, if there is a victim. The victim can give the court his or her opinion about the defendant’s application to the program.
Before the court will grant the person’s application for this program, it will refer the person to the Court Support Services Division (CSSD). CSSD will make sure that the person can be in the program and, if so, will decide what services and treatment the person should get. CSSD will report its decisions to the court.
If the court grants the defendant’s application for this program, the defendant will be referred to CSSD to be put into a treatment program and supervised.
If the defendant finishes the Supervised Diversionary Program successfully, the charges against the defendant are dismissed by the court.
*Section 54-56l of the General Statutes
Alcohol Education Program
The Pre-Trial Alcohol Education Program (AE)* may be used by people who are charged with driving a motor vehicle or a boat under the influence (including, but not limited to, violations of sections 14-227a, 14-227g, and 15-133 of the General Statutes). People charged with a violation of section 14-227a of the General Statutes who used the AE program more than ten years earlier for a violation of section 14-227a may also be allowed to use the program.
When the AE program is applied for, the court file is sealed. The Court Support Services Division (CSSD) will investigate people who apply for the AE program to decide if they can be in the program. People who apply for the AE program are also evaluated by the Department of Mental Health and Addiction Services (DMHAS), and that evaluation is used by DMHAS to recommend that the applicant be in one of the following programs if the Court grants the application: (1) a 10-week educational program, (2) a 15-week educational program, or (3) a treatment program. The Court may also order the defendant to take part in a victim impact panel.
If the Court grants the application and the defendant finishes the assigned program successfully, the charges will be dismissed by the court.
The AE program requires an application fee of $100, an evaluation fee of $100, and a program fee although the Court may decide that the defendant does not have to pay those fees. The program fee is $350 if the defendant is ordered into the 10-week educational program, or $500 if ordered into the 15-week educational program. If the Court orders placement in a treatment program, the defendant must pay the cost of that program to the treatment provider. The Court may decide that the defendant does not have to pay the cost of the treatment program.
*Section 54-56g of the General Statutes
Drug Education Program
The Pre-Trial Drug Education Program (DEP)* can be used by people charged with violating drug possession or drug paraphernalia laws under section 21a-267 or 21a-279 of the General Statutes. A person who used this program before or who is in the community service labor program cannot be in this program.
When the DEP program is applied for, the court file is sealed. The Court Support Services Division (CSSD) will investigate people who apply for the DEP program to decide if they can be in the program. People who apply for the DEP program are also evaluated by the Department of Mental Health and Addiction Services (DMHAS), and that evaluation is used by DMHAS to recommend that the applicant be in one of the following programs if the Court grants the application: (1) a 10-week educational program, (2) a 15-week educational program, or (3) a treatment program.
If the Court grants the application and the defendant finishes the assigned program successfully, the charges will be dismissed by the court. The DEP program requires an application fee of $100, an evaluation fee of $100, and a program fee, although the Court may decide that the defendant does not have to pay those fees. The program fee is $350 if the defendant is ordered into the 10-week educational program, or $500 if ordered into the 15-week educational program. The court may decide that the defendant does not have to pay all of the fee or that the defendant only has to pay part of the fee. If the Court orders placement in a treatment program, the defendant must pay the cost of that program to the treatment provider. The Court may decide that the defendant does not have to pay the cost of the treatment program.
In addition to the educational portions of the program, the defendant is required to do either 5 or 10 days of community service.
If the defendant finishes the program successfully, the charges against the defendant are dismissed by the court.
*Section 54-56i of the General Statutes
Family Violence Education Program
The Family Violence Education Program (FVEP)* can be used by people charged with certain family violence crimes. Those crimes are defined in section 46b-38a of the General Statutes. A person who used this program before or who used the Accelerated Rehabilitation (AR) program for a family violence crime committed on or after October 1, 1986, cannot use this program.
The victim is notified of the defendant’s request to be assigned to the FVEP program and the victim is given a chance to comment in court about the application.
If the court allows the defendant to use the program, the defendant is released to the custody of the family violence intervention unit of the Court Support Services Division (CSSD) for up to 2 years and must obey conditions set by the court.
If the defendant finishes the assigned program successfully, the charges against the defendant are dismissed by the court.
The FVEP requires an application fee of $100, and a program fee of $300. The Court may decide that the defendant does not have to pay either or both of those fees.
*Section 46b-38c(g) of the General Statutes13
Community Service Labor Program
The Community Service Labor Program (CSLP)* can be used by people charged with violating drug possession or drug paraphernalia laws under section 21a-267 or 21a-279 of the General Statutes. A person who has been convicted of violating these sections or of illegally selling, distributing, manufacturing, presenting or dispensing drugs under sections 21a-277, 21a-278 or 21a-279 of the General Statutes cannot use the program.
The program may be granted (1) as a “suspended prosecution” pretrial program, or (2) for a person who has used the program before, as a condition of probation or conditional discharge with a suspended sentence. A person cannot be placed in the program more than two times.
A person who is granted the “suspended prosecution” program is sent to the Court Support Service Division (CSSD), which will place the person in the program. Drug education is part of the program and is required.
If the defendant finishes the program successfully, the charges against the defendant will be dismissed by the court.
The amount of time that the defendant must do community service will be at least 14 days for a first violation and 30 days for a second violation with a plea of guilty and conviction.
The CSLP participation fee is $205.
*Section 53a-39c of the General Statutes14
School Violence Prevention Program
The Pre-Trial School Violence Prevention Program* may be used by public or private secondary school students charged with an offense involving the use or threatened use of physical violence in or on the property of a public or private elementary or secondary school or at an activity connected with the school.
The program cannot be used by a student who used this program before or who has been convicted of any offense involving the use or threatened use of physical violence in or on the property of such a public or private school or at an activity connected with the school.
When the program is applied for, the court file is sealed and the applicant is sent to the Court Support Services Division (CSSD) for review. If the applicant is accepted into the program, that person is placed in the school violence prevention program for 1 year and his or her progress is reviewed during that time by CSSD.
To be in this program, the student and his or her parents must not have any firearms, dangerous weapons, controlled substances or other property or materials that by law they cannot have or that are in violation of the law.
The program will require the student to attend at least 8 group counseling sessions in anger management and nonviolent conflict resolution.
If the student finishes the program successfully, the charges against the student will be dismissed by the court.
The cost of the school violence prevention program is paid by the parent or guardian of each student to the program provider. That payment cannot be made to the Clerk’s Office.
*Section 54-56j of the General Statutes15
Suspended Prosecution for Illegal Sale, Delivery, or Transfer of Pistols or Revolvers
The Suspended Prosecution for Illegal Sale, Delivery or Transfer of Pistols or Revolvers* program may be used by certain people who are charged with violating section 29-33 of the General Statutes.** The program may be used by a person if the court finds that the violation of section 29-33 is not of a serious nature, that the defendant has not been convicted of violating the section before and that the person has not had a prosecution suspended under this section before. If the court allows the person to use the program, the defendant is referred to the Court Support Services Division (CSSD) to be supervised for up to 2 years.
If the defendant finishes the program successfully, the charges against the defendant will be dismissed by the court.
There is no fee for this program.
*Section 29-33(h) of the General Statutes**Sale, delivery or transfer of pistols and revolvers.16
Youthful Offender Program
The Youthful Offender Program* (YO) may be used by people who are charged with committing certain crimes before they are 18 years old. The YO program is not a pretrial diversionary program. It is a program that helps youths instead of prosecuting them as adults. All 16- and 17- year-old defendants can use YO status unless they have been charged with certain felonies and other crimes, have already been convicted of a felony on the adult docket, or have been adjudicated as a serious juvenile offender or serious juvenile repeat offender.
When any person is determined to be a youthful offender, the court may (1) commit the defendant, (2) give the person a fine of not more than $1,000, (3) impose a sentence of conditional discharge or a sentence of unconditional discharge, (4) give the person a sentence of community service, (5) give the person a sentence of imprisonment of not more than the amount of time set for the crime committed by the defendant but not more than 4 years, (6) give the person a sentence and suspend the execution of the whole sentence or a part of the sentence, (7) order that the person get treatment for alcohol or drug dependency under section 17a-699 of the General Statutes, or (8) if a criminal docket for drug-dependant persons has been set up under section 51-181b of the General Statutes in the judicial district where the defendant was determined to be a youthful offender, transfer the supervision of the defendant to the court handling that docket.
The records about, and the proceedings that youthful offenders are involved in, are confidential and decisions by the court that a person is a youthful offender are not convictions.
There is no fee for the youthful offender program. If a person is placed on YO probation, the probation fee of $200 must be paid unless the court decides that the fee does not have to be paid.
*Sections 54-76b through 54-76q17
Treatment of Offenders who are Dependent on Drugs or Alcohol Instead of Prosecuting Them
Courts may order defendants who are dependent on drugs or alcohol to get treatment instead of those defendants being prosecuted or incarcerated.* The program covers all drug sale and possession crimes. A person charged with driving under the influence, assault in the second degree with a motor vehicle, or a class A, B, or C felony cannot have their prosecution suspended and get treatment. Also, anyone who was ordered treated two times before under this program or under a program covered by older versions of this law cannot be in this program unless the court decides to let that person in.
The court may order the defendant examined to make a decision on whether that person is dependent on alcohol or drugs and can get treatment. A probation officer may also order an examination of the defendant as part of a presentence investigation (PSI).
A person that can be in this program may ask the court for his or her prosecution to be suspended (held up) and for treatment after the court receives the examination report. The court may order the person’s prosecution suspended and order treatment if it decides that: (1) the person was dependent on alcohol or drugs at the time of the offense, (2) the person needs and will probably benefit from treatment, and (3) suspending the prosecution of the person would be in the interest of justice. Prosecution may be suspended for up to 2 years.
If the court finds that the person is responding well to treatment or has completed treatment and has complied with the other conditions of suspension, it may dismiss the charges.
*Sections 17a-696 to 17a-199 of the General Statutes.
In a criminal trial, a jury examines the evidence to decide whether, “beyond a reasonable doubt,” the defendant committed the crime in question. A trial is the government’s opportunity to argue its case, in the hope of obtaining a “guilty” verdict and a conviction of the defendant. A trial also represents the defense’s chance to refute the government’s evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.
(Note: Although a trial is the most high-profile phase of the criminal justice process, the vast majority of criminal cases are resolved well before trial — through guilty or no contest pleas, plea bargains, or dismissal of charges.)
A complete criminal trial typically consists of six main phases, each of which is described in more detail below:
Choosing a Jury
Witness Testimony and Cross-Examination
Jury Deliberation and Verdict
An individual who has been convicted of a crime may “appeal” his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.
The Appeal Process: “Briefs” and the “Record”
In an appeal, the defendant (now called the “appellant”) argues that, based on key legal mistakes which affected the jury’s decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.
In considering an appeal, the court reviewing the case looks only at the “record” of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter’s transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.
In reaching a decision on the appeal, the higher court (“appellate court”) looks to this record and to the written “briefs” filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally “erroneous,” or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government’s position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.
The Appeal Process: How and When?
At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.
Know Your Rights!
In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, anyone in police custody must be told four things before being questioned:
You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to an attorney.
If you cannot afford an attorney, one will be appointed for you.
What if the Police Fail to Advise Me of My Miranda Rights?
When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.
Fifth Amendment Rights
The Fifth Amendment to the U.S. Constitution gives individuals the right to refuse to answer any questions or make any statements, when to do so would help establish that the person committed a crime or is connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to “plead the Fifth”.
Can a Criminal Defendant be Forced to Testify at Trial?
At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant’s lawyer cannot force the defendant to take the witness stand at trial, if he or she does not want to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take that refusal into consideration when deciding whether the defendant is guilty of the crime(s) charged.
It is important to note that, once a defendant does take the stand and testify at trial, he or she cannot ordinarily choose to answer some questions but not others. Rather, the defendant’s Fifth Amendment privilege is deemed waived through the act of testifying.
Does the Privilege Apply to Fingerprints and Blood Tests?
The Fifth Amendment right against self-incrimination does ensure that a defendant in a criminal case cannot be forced to testify and “be a witness against himself or herself”. But it does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal case. In other words, a defendant may not refuse to submit to these procedures by asserting the Fifth Amendment privilege.
Who Can Claim the Fifth Amendment Privilege at Trial?
At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment privilege. Witnesses who are asked to testify can refuse to answer certain questions by asserting their Fifth Amendment rights, if to answer would implicate them in any type of criminal activity. Unlike defendants in a criminal case, who have the right not to take the witness stand at all, a witness may be forced to testify (by subpoena or other means) but may exercise his or her Fifth Amendment right by refusing to answer certain questions.
[Note: The Fifth Amendment also provides the basis for an individual’s “Miranda” rights while in police custody.]
Right to a Speedy Trial
What is a “Speedy” Trial?
A “speedy” trial basically means that the defendant is tried for the alleged crimes within a reasonable time after being arrested. Although most states have laws that set forth the time in which a trial must take place after charges are filed, often the issue of whether or not a trial is in fact “speedy” enough under the Sixth Amendment comes down to the circumstances of the case itself, and the reasons for any delays. In the most extreme situations, when a court determines that the delay between arrest and trial was unreasonable and prejudicial to the defendant, the court dismisses the case altogether.
In addition to guaranteeing the right to an attorney, the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant a speedy trial by an “impartial jury.” This means that a criminal defendant must be brought to trial for his or her alleged crimes within a reasonably short time after arrest, and that before being convicted of most crimes, the defendant has a constitutional right to be tried by a jury, which must find the defendant guilty “beyond a reasonable doubt.”
Right to be Free from Cruel & Unusual Punishment
Under the Eighth Amendment to the U.S. Constitution, individuals convicted of a crime have the right to be free of “cruel and unusual” punishment while in jail or prison. This means that after a criminal defendant is convicted and sentenced, the Constitution still acts to guarantee his or her fundamental rights concerning conditions of confinement and treatment by corrections personnel. Inmates’ Eighth Amendment challenges to punishment and confinement conditions are typically brought in connection with federal civil rights laws, including 42 U.S. Code, Section 1983, and the Prison Litigation Reform Act.
What is “Cruel and Unusual” Punishment?
No universal definition exists, but any punishment that is clearly inhumane or that violates basic human dignity may be deemed “cruel and unusual.” For example, in 1995, a federal court in Massachusetts found that inmates’ rights were violated when they were held in a 150-year-old prison that lacked toilets, and was fraught with vermin and fire hazards.
Challenging Confinement Conditions: What Must be Shown?
When challenging conditions of confinement, such as a corrections institution’s procedure for providing food or medical services, a prisoner usually must show that the institution’s officials or officers acted with “deliberate indifference” to the prisoner’s constitutional rights. This means that:
The institution’s employees were aware of some danger or risk of harm to an inmate; and
The employees chose not to take any steps to remedy the problem; and
The inmate’s fundamental rights were violated as a result.
Deliberate indifference is a fairly high standard to meet, because the inmate must show more than mere negligent behavior on the part of corrections personnel.
What is the Jury’s Role at Trial?
The Sixth Amendment guarantees a criminal defendant the right to be tried before an “impartial jury,” representative of a cross-section of the community, which will consider the evidence against the defendant and decide whether to find him or her guilty of the crime(s) charged. In almost all states, 12 jurors must agree in order to find a defendant “guilty” or “not guilty.” In such states, if the jury fails to reach a unanimous verdict and finds itself at a standstill (a “hung” jury), the judge may declare a “mistrial,” after which the case may be dismissed or the trial may start all over again.