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Subject matter areas of criminal law

Criminal Law is the name given to the branch of law that governs an individual’s relationship to the state. It includes the definitions of criminal offenses, which are usually established by Congress or state legislatures. The term “criminal law” also encompasses the rights of an accused and the criminal process, including arrest, arraignment, grand juries, pleas, discovery, pretrial hearings, trials, jury selection, evidence, motions, and posttrial remedies. The main purpose of the criminal law is to set forth the punishment for criminal offenses. In order to prove any crime, no matter how serious, the prosecutor must prove that the accused committed a guilty act with a guilty mind beyond a reasonable doubt.



You may be stopped for questioning by the police if there exists an "articulable suspicion." A stop is not the same as an arrest because, although you may be detained, you aren’t moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer.




Search Warrants:

A search warrant authorizes police to conduct a search of a specific place, such as your residence. In order for a warrant to be issued by a judge, “probable cause” is necessary.

Probable cause to search means that:

  • It is more likely than not that the specific items to be searched for are connected with criminal activities

  • Those items will be found in the place to be searched



Warrantless Searches:

The general rule is that warrants are required for searches. But search warrants are not required for the following:


  • Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.

  • Automobile searches: If you’re arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.

  • Exigent circumstances: Searches may be conducted if there are “exigent circumstances” which demand immediate action, such as to avoid the destruction of evidence.

  • Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.



Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren’t required to consent to any police searches.




In order to be arrested, there must be what’s called “probable cause.” This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary.


After you’re placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are the right to remain silent and the right to have an attorney. After your arrest, you aren’t required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.




After you’re arrested, the police will bring you to the police station for the bookingprocess. You’ll be fingerprinted and asked a series of questions, such as your name and date of birth. You’ll also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.




Once criminal charges are filed, you’ll make a court appearance that is known as an “arraignment.” If you’re incarcerated, this will usually occur within 72 hours of your arrest.

During your arraignment, you’ll be asked to enter a “plea” to the crime you’ve been charged with. Possible pleas are:


  • Guilty plea: If you plead “guilty,” you’re admitting to the facts of the crime and the fact that you were the one who committed that crime.

  • Not guilty plea: A “not guilty” plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.

  • Nolo contendere: A “nolo contendere” or “no contest” plea indicates that,     while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.


If you plead “guilty” or “nolo contendere,” there will not be a trial. You’ll then be sentenced.

During the arraignment, the court will also:

  • Set bail

  • Refuse to set bail; or

  • Release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations





Bail is money or property put forth as security to ensure that you’ll show up for further criminal proceedings.

Bail can be paid:


  • In cash

  • A pledge of property (if permitted in that court)

  • A bail bond



A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.




You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that trials be held within a certain time frame after a person has been charged with a crime.

This right can be waived by asking for additional time for the preparation of your defense.


Speedy Trial rights in Georgia


A court uses a balancing test in Georgia to determine whether your right to a speedy trial was denied. The following four factors are weighed:


  • Length of the delay

  • Your assertion of your right to a speedy trial

  • Reason for the delay

  • Prejudice to you because of the delay





Many prosecutors will consider “plea agreements,” although it’s not legally required. If you don’t reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage.


Usually, if you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by:


  • Pleading guilty; or

  • Choosing a bench trial (a trial in front of a judge only)


If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury.




After conviction and sentencing, you have the opportunity to file an appeal of your sentence. If you were convicted based on a guilty plea, you may need to ask for “leave” or permission to appeal your conviction. If you were convicted after a trial, you have an absolute right to appeal. An appeal is not a retrial of the case, but it is an examination of the trial record to ensure that the proceedings were conducted in a fair manner. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.


There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what’s called “legal error.” Legal error may include:

  • Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights

  • Lack of sufficient evidence to support a verdict of guilty

  • Mistakes in the judge’s instructions to the jury regarding your case



You may also appeal due to misconduct on behalf of the jurors, or you may appeal if there is newly discovered evidence to exonerate you.

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