Keith Mack
Being charged with a crime is a serious matter, and it means that the government is formally accusing you of being a criminal. Criminal charges vary between national, tribal, state, and local jurisdictions, and each crime has its own set of elements that define it. The process typically begins with an arrest, followed by a police report, and then an arraignment to decide whether the suspect will face charges. The prosecutor will study the information gathered by investigators and decide whether to present the case to a grand jury. The grand jury will then listen to the prosecutor and witnesses and vote on whether there is enough evidence to charge the person with a crime.
| Characteristics | Values |
|---|---|
| Nature of criminal law in the U.S. | Statute-based |
| Criminal law variations | National, tribal, state, and local |
| Criminal charges | Formal accusation of being a criminal |
| Charging without an arrest | Possible in Arkansas and across the U.S. |
| Arraignment | Decides whether one will face charges |
| Criminal trial | Rare, plea agreements are more common |
| Burden of proof | Prosecution must prove beyond a reasonable doubt |
| Grand jury | Decides whether charges should be brought |
| Felony charges | Require a grand jury |
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What You'll Learn
Criminal law differs between states and crime types
Criminal law in the United States is statute-based, with each state and the federal government creating and amending criminal or penal codes. While Congress has limited power to make criminal laws, state governments hold more power in this area, resulting in state criminal codes that are often more complicated than federal codes. For example, New York's penal code prescribes nine levels of felonies, ranging from residential mortgage fraud to terrorism.
Each crime has its own set of elements that define it, including the act or conduct (actus reus), the individual's mental state at the time of the act (mens rea), and the causation between the act and its effect. These elements must be proven by the government beyond a reasonable doubt for a conviction. Crimes can be broadly categorized into felonies, misdemeanors, inchoate offenses, and strict liability offenses, with further distinctions between adult and juvenile offenses and federal, state, tribal, and local crimes.
The specific crimes and their associated punishments vary significantly between states. For instance, while prostitution is a crime in nearly all American jurisdictions, drug laws differ across states, considering factors such as weight, value, and intent. Additionally, each state has its own sentencing guidelines, with federal courts using the Federal Sentencing Guidelines and state courts referring to state-specific guidelines.
The process of charging someone with a crime also differs slightly between states. In Ohio, for instance, a person cannot stand trial for a felony unless indicted by a grand jury, while lower-level crimes may be charged by information or complaint and do not require an indictment. These nuances in criminal law between states and crime types highlight the importance of competent legal representation to navigate the specific laws and procedures applicable to a particular case.
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Arrests and police reports precede charges
In the United States, an arrest record is a criminal report created by a law enforcement entity after arresting an individual. The report details all information regarding the nature of the offence, interrogation details, criminal charges, and future court dates. A police report is a document that describes all information found and experienced by a law enforcement officer handling an incident, arrest, or crime in question. It is the first piece of information entered into the criminal legal system and is highly valued by the criminal justice system. It serves as a firsthand account of all details regarding an incident or criminal offence.
Police reports are usually created after an arrest, but they can also be created when a law enforcement official receives a report that someone has committed a crime or when an officer observes someone engaging in unlawful conduct. After completing their investigation, law enforcement officials will summarise their findings in a report, along with supporting evidence, and send this report to the District Attorney's office. A prosecutor will then read the report and examine the evidence to decide whether criminal charges should be filed.
The prosecutor has the discretion to determine what crime to charge the accused with. They could decide to pursue a more or less serious offence than the one recommended by the investigating officer, or they might decide not to pursue the case at all due to insufficient evidence. If the prosecutor decides to file charges, they will write up a complaint stating what law or ordinance the accused is believed to have violated.
It is important to note that an arrest does not always precede criminal charges. A citation, summons, or arrest warrant can be issued against an individual without them being taken into custody. This typically happens for minor misdemeanours, such as certain motor vehicle violations. For more serious crimes, such as felonies or violent misdemeanours, an arrest warrant is more likely to be requested by law enforcement officials.
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Prosecutors decide to charge based on evidence
Prosecutors base their initial charging decisions on police reports and any documents sent to them by arresting police officers. However, they may also consider whether further investigation is needed, whether police may have acted unlawfully, and what motives the victim or witnesses may have had. Prosecutors can file formal charges only if they believe the evidence will prove the suspect's guilt beyond a reasonable doubt.
Prosecutors can also typically "amend" the charging documents by adding criminal charges. The new charges must be supported by the evidence. Amending the initial charges is common as new evidence is uncovered in a case. Generally, any changes to the charges or complaints must be made before a plea is entered or a trial begins. After that point, the prosecutor may need to get the judge's permission to add charges or add information to the complaint. A judge might decline the prosecutor's request to amend the charges if the defendant's rights would be prejudiced.
Prosecutors have what is called "prosecutorial discretion". They can look at all the circumstances of a case and the suspect, plus other factors pertaining to justice and public safety. For instance, prosecutors may consider the suspect's background and criminal past. Many decisions come down to the prosecutor's sense of what justice requires in the case at hand. Prosecutors are supposed to both enforce the law and "do justice". Doing justice means that a prosecutor occasionally decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction. For example, if an otherwise law-abiding person makes a one-time, foolish mistake, a prosecutor may decide that it would not serve any purpose to spend time and money prosecuting.
In addition, prosecutors should also consider the deterrent effect of prosecution. Deterrence of criminal conduct, whether it be criminal activity in general or a specific type of criminal conduct, is one of the primary goals of criminal law. This purpose should be kept in mind, particularly when deciding whether a prosecution is warranted for an offense that appears to be relatively minor.
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Grand juries decide to indict based on evidence
In the United States, a grand jury is a group of citizens that serves as an investigative body to verify accusations and decide whether there is sufficient evidence to pursue a prosecution. A grand jury can issue subpoenas and compel witnesses to testify without a lawyer present. The number of jurors required to issue an indictment varies among states and even within a single state. A supermajority of jurors is usually needed to recommend an indictment or criminal charge. For example, in a twenty-three-person grand jury, twelve people would constitute a bare majority.
The role of a grand jury is to prevent prosecutorial misconduct and decide whether to bring charges. They receive evidence from the prosecutor, deliberate, and then decide whether to issue an indictment. The prosecutor drafts the charges and decides which witnesses to call. The grand jury does not receive any instructions on the law, and their job is to judge what the prosecutor has produced.
In some cases, a grand jury may be used to extend prosecutorial power when there is insufficient evidence to pursue a prosecution. Prosecutors may use the grand jury process to gather additional evidence and secure an indictment. This has been criticised as being too easy to reach an indictment, and prosecutors have been known to withhold evidence favourable to the defendant.
The Fifth Amendment to the United States Constitution requires the federal government to use grand juries for all felonies, though not misdemeanours. About half of the states require a grand jury indictment to commence a criminal prosecution, with many limiting this requirement to felonies or certain types of felonies. Lower-level crimes may be charged by information or complaint and do not require an indictment.
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Charges without arrest are possible
An arrest is when an individual is detained by the police for suspected involvement in a criminal act. Typically, arrests are the first step in a criminal case, but they are not a prerequisite for the government to charge someone with a crime. Charges are formal accusations levelled at an individual, alleging that they have committed a crime. These charges must then be proven in court.
In the case of misdemeanours, charges without an arrest are more situational. It depends on factors such as how quickly the suspect was taken into custody and the resources used in the process. When the police suspect someone but lack the evidence to arrest them, they may issue a summons or citation, allowing the suspect to appear in court at a later date without prior arrest. These are usually associated with minor crimes but can be used for more serious offences too.
In many states, police officers cannot arrest someone for a misdemeanour unless they personally witnessed the crime. Instead, the suspect may be given a notice of the charge and a court date, similar to a citation. This is called a "summons in lieu of arrest" and is common for minor crimes or when the suspect is a juvenile or elderly person.
One key distinction to make is that while a person can be charged without an arrest, they cannot be convicted without first being arrested. This is because an individual cannot be punished for breaking the law unless they are formally charged, which an arrest is not indicative of. A charge is not proof of guilt, and the government must prove each element of the charge in court.
Therefore, while charges without arrest are possible, it is a crucial distinction to make that an arrest is not a requirement for conviction, but rather, a prerequisite for charges to be levelled.
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Frequently asked questions
When the government "charges" someone with a crime, they are formally accusing them of being a criminal. Criminal charges are very serious, and the accused must obtain competent legal help.
After an arrest, there are a few legal steps before the case goes to trial. The prosecutor decides whether to present the case to the grand jury. When a person is indicted, they are given formal notice that it is believed that they committed a crime. The indictment contains the basic information that informs the person of the charges against them.
Yes, in Arkansas and across the United States, it is possible to be charged with a crime without being formally arrested. This is because charging someone and arresting them are separate parts of the legal process. Law enforcement or prosecutors can file charges against an individual based on evidence and witness statements without needing to physically detain them.
If you receive a summons or learn that you've been charged without an arrest, consult an attorney immediately. An attorney can help you understand your rights, explain the charges, and prepare a defense. It is also important to follow all instructions from the court and gather any relevant evidence or witnesses.
