the criminal law handbook, know your rights survive the system 12th (2011)

12th Edition
The
Criminal
Law
Handbo ok
Know Your Rights, Survive the System
Paul Bergman, J.D. & Sara J. Berman, J.D.
authors of Represent Yourself in Court
• Translate “crimespeak” into English
• Understand the trial process
• Learn about juvenile court procedures
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“A guided tour of the criminal justice system—intended both for
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12th edition
The Criminal
Law Handbook
Know Your Rights,
Survive the System
Paul Bergman, J.D. & Sara J. Berman, J.D.

TWELFTH EDITION AUGUST 2011
Editor LISA GUERIN
Cover Design SUSAN PUTNEY
Book Design TERRI HEARSH
Proofreading ROBERT WELLS
Index MEDEA MINNICH
Printing BANG PRINTING
International Standard Serial Number (ISSN): 1940-722X
ISBN-13: 978-1-4133-1620-9 (pbk.)
ISBN-10: 1-4133-1620-4 (pbk.)
ISBN-13: 978-1-4133-1650-6 (epub PDF)
Copyright © 1997, 2000, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, and 2011
by Paul Bergman and Sara J. Berman. All rights reserved. The NOLO trademark is
registered in the U.S. Patent and Trademark Offi ce. Printed in the U.S.A.
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Please note
We believe accurate, plain-English legal information should help you solve
many of your own legal problems. But this text is not a substitute for
personalized advice from a knowledgeable lawyer. If you want the help of a
trained professional—and we’ll always point out situations in which we think
that’s a good idea—consult an attorney licensed to practice in your state.
Dedication
With love to Kevin, Hilary, and Vincent; and to Julia and Daniel.
Acknowledgments

Our thanks:
To attorneys Jake Warner and Steve Elias of Nolo for first envisioning a
book about the criminal justice process.
To Janet Portman, Rich Stim, and Lisa Guerin for their hard work and
dedication to the text.
To Dean Laurie Levenson, a former prosecutor and legal commentator;
Michael Roman, an experienced criminal defense attorney; and Ron
Schlesman, a longtime probation officer, each of whom was kind enough
to read through the entire text; and law professors David Sklansky, Peter
Arenella, and David Dolinko of the UCLA School of Law and Michael
Graham of the Miami School of Law for their many insights, critiques, and
immensely helpful suggestions.
To public defender and Concord law professor John Ciroli for his many
insights into criminal defense practice.
To attorney Steve Harvey for his insightful comments about the nature of
the U.S. criminal justice system.
To the many resourceful employees of Nolo who put their heart and
energy into producing such warm and helpful books and making sure the
public knows about them.
Much appreciation to Dr. LaVera Otoyo for sharing wisdom and stories
gathered from her many years of service to America’s juvenile justice system.
To the Martinez family, whose loving care enabled the long hours of
research and writing.
To UCLA School of Law Professor Robert Goldstein for his help with the
domestic violence and child abuse sections.
About the Authors
Paul Bergman is a Professor of Law at the UCLA School of Law and
a recipient of a University Distinguished Teaching Award. His books
include Nolo’s Deposition Handbook (with Moore, Nolo); Reel Justice:
The Courtroom Goes to the Movies (Andrews & McMeel); Trial Advocacy:

Inferences, Arguments, Techniques (with Moore and Binder, West
Publishing Co.); Trial Advocacy in a Nutshell (West Publishing Co.);
Represent Yourself in Court: How to Prepare & Try a Winning Case
(with Berman, Nolo); Depositions in a Nutshell (with Moore, Binder,
Light, West Publishing); and Lawyers as Counselors: A Client-Centered
Approach (with Binder, Tremblay, Weinstein, West Publishing). He has
also published numerous articles in law journals.
Sara J. Berman received her law degree from UCLA. She is a Professor
at the Concord University School of Law, and a founder of the PASS
Online Bar Review (www.passlaw.com). She has authored several bar
review course texts and legal articles, and has lectured extensively
for BarPassers, West Bar Review, and the Practicing Law Institute. She
teaches criminal law, criminal procedure, criminal justice, legal writing
and analysis, corporations law, and community property law. She is also
the coauthor of Nolo’s Represent Yourself in Court: How to Prepare & Try a
Winning Case.
Table of Contents
Your Legal Companion 1
Introduction:
A Walk-rough of the Case of State v. Andrea
Davidson, a Fictional Robbery Prosecution 3
1
Talking to the Police 11
Police Questioning of People Who Haven’t Been Taken Into Custody 13
Police Questioning of Arrestees 21
2
Search and Seizure 35
e Constitutional Background 39
Search Warrants 43
Consent Searches 48

e Plain View Doctrine 53
Warrantless Searches Incident to Arrest 54
“Stop and Frisk” Searches 58
Searches of Cars and Occupants 60
Warrantless Searches or Entries Under Emergency (Exigent)
Circumstances 66
Miscellaneous Warrantless Searches 67
3
Arrest: When It Happens, What It Means 75
General Arrest Principles 78
Arrest Warrants 82
Warrantless Arrests 83
Use of Force When Making Arrests 86
Citizens’ Arrests 89
4
Eyewitness Identification: Psychology and Procedures 93
An Overview of Eyewitness Identification Procedures 95
e Psychology of Eyewitness Identification 97
Lineups 100
Showups 105
Photo Identifications 106
Motions to Suppress Identifications 107
5
Booking and Bail: Checking In and Out of Jail 111
e Booking Process 113
Arranging for Bail 117
Own Recognizance Release (Release O.R.) 128
6
From Suspect to Defendant 131
Crime and Criminal Cases 133

To Charge or Not to Charge, at Is the Question 135
e Mechanics of Charging 143
Grand Juries 145
Diversion 148
7
Criminal Defense Lawyers 153
Do I Need a Lawyer? 155
Court-Appointed Attorneys 158
Private Defense Attorneys 164
Self-Representation 174
8
Understanding the Attorney-Client
Relationship in a Criminal Case 185
Confidentiality 187
Client-Centered Decision Making 191
Lawyer-Client Communication 197
Representing Guilty Defendants 199
Competent Clients 201
9
A Walk rough Criminal Court 203
e Courthouse 205
e Courtroom 206
e Courtroom Players 208
Courtroom Behavior 213
10
Arraignments 217
Arraignment Basics 219
Self-Representation at Arraignment 227
11
Developing the Defense Strategy 231

Overview 233
How the Defendant’s Version of Events May Limit Defense Strategies 237
When Attorneys Ignore a Defendant’s Version of Events 241
e Importance of Honesty in Developing a Defense Strategy 243
12
Crimespeak: Understanding the Language
of Criminal Laws 247
Mens Rea 251
e Meaning of Frequently Used Legal Language 254
Derivative Criminal Responsibility 260
Murder and Manslaughter 265
Sexual Violence 269
Burglary 275
Robbery 277
eft 278
Hate Crimes 282
e Patriot Act 284
White Collar Crimes 286
13
Defensespeak:
Common Defenses to Criminal Charges 295
Prosecutor’s Failure to Prove Guilt 298
“Partial” Defenses 302
Self-Defense 305
Alibi 308
Insanity 309
Intoxication (Under the Influence of Drugs or Alcohol) 314
Entrapment 315
Jury Nullification 316
14

Discovery: Exchanging Information With the
Prosecution 319
Modern Discovery Policy 321
Discovery of Information Helpful to the Defense 322
Discovery of Harmful Information 325
Reciprocal Discovery 327
15
Investigating the Facts 331
Interviewing Prosecution Witnesses 332
Finding and Interviewing Defense Witnesses 335
Other Investigation Tasks and eir Costs 335
16
Preliminary Hearings 339
What Preliminary Hearings Are and When ey Are Held 340
Basic Rights During Preliminary Hearings 344
Common Defense and Prosecution Strategies 347
17
Fundamental Trial Rights of the Defense 351
e Defendant’s Right to Due Process of Law 354
e Prosecution’s Burden of Proof 357
e Defendant’s Right to Remain Silent 359
e Defendant’s Right to Confront Witnesses 362
e Defendant’s (and the Media’s) Right to a Public Trial 365
A Defendant’s Right to a Jury Trial 368
A Defendant’s Right to Counsel 370
A Defendant’s Right to a Speedy Trial 372
e Defendant’s Right Not to Be Placed in Double Jeopardy 374
18
Basic Evidence Rules in Criminal Trials 377
Overview 380

Rules Regulating the Content of Testimony 383
Rules Regulating the Manner of Testimony 396
Scientific Evidence 400
Privileged (Confidential) Information 405
19
Motions and eir Role in Criminal Cases 409
Basic Procedures 411
Common Pretrial Motions 414
Motions During Trial 418
Posttrial Motions 419
20
Plea Bargains: How Most Criminal Cases End 423
Plea Bargaining—Terminology and Timing 425
e Pros and Cons of Plea Bargains 426
e Plea Bargaining Process 430
e Strategy of Negotiating Plea Bargains 435
21
e Trial Process 441
Summary of the Trial Process 444
Choosing a Judge or Jury Trial 445
Jury Voir Dire 447
Motions in Limine 451
Opening Statements 452
Prosecution’s Case-in-Chief 453
Direct Examination of Witnesses 454
Cross-Examination 457
Defense Motion to Dismiss 458
Defendant’s Case-in-Chief 458
Closing Argument 460
Instructing the Jury 461

Jury Deliberations and Verdict 464
22
Sentencing 471
Overview of Sentencing 474
Sentencing Procedures 482
Sentence Options 488
Community Service 497
Miscellaneous Alternative Sentences 497
e Death Penalty 500
23
Appeals 507
Appeals 508
Writs 513
24
How the Criminal Justice System Works 519
Questions and Answers About DUI (Driving Under the Influence) 520
DUI Case Examples 528
25
Juvenile Courts and Procedures 537
A Brief History of U.S. Juvenile Courts 540
Juvenile Court Jurisdiction 541
Deciding Whether to File Charges 544
e Right to Counsel and Other Constitutional Rights 546
Trying Juveniles as Adults 550
Sentencing (Disposition) Options 554
Sealing Juvenile Court Records 559
26
Prisoners’ Rules 563
Prisons and Prisoners’ Rights 565
Legal Resources for Prisoners and eir Families 575

Parole 580
Pardons 583
27
Looking Up the Law 585
What to Research 587
Where to Do Research 600
Glossary 602
Index 625
Your Legal Companion
W
hen can a police officer make
an arrest? Is it a good idea
to talk to the police? Who
decides whether to charge someone with
a crime, and what crime to charge? Is self-
representation ever a good idea in criminal
cases? Should defendants conceal their guilt
from their attorneys? What factors might
convince a judge to release a jailed person
on low bail—or waive bail altogether?
All of these questions can be perplexing,
particularly if you’re not familiar with the
criminal justice system.
You may be asking these questions
because you, a relative, or a friend have
been arrested and charged with a crime.
Or perhaps you’ve been the victim of one.
Maybe you’re a teacher, social worker, or
counselor who needs clear answers to
pressing questions so you can help others

understand how the criminal justice system
works. Perhaps you love television police
and courtroom dramas and want to know
more about what would happen if these
were real cases.
This book is for all of you.
It is written in an easy to understand
question-and-answer format to explain the
criminal justice system, inside and outside
the courtroom.
•If you are facing criminal charges,
this book will help you know enough
about what’s going on to intelligently
participate in important decisions that
are likely to affect the outcome.
•If someone close to you faces
criminal charges, you’ll want to know
what is happening and how you
can be of help—for example, does
it matter whether you are there in
the courtroom when your friend or
relative is arraigned?
•If you are a victim of a crime, you
too will want to understand how
the process works and where in the
process you can expect to have an
effect on how the case is prosecuted.
Whatever prompts your interest, the
criminal justice system belongs to you. You
have a right to know how it works. The

information in this book tells you what you
never learned in high school civics.
In summary, our goal in this book is to
cultivate educated clients, educated relatives
and friends of defendants, educated victims,
and educated citizens.
Our book is in no way intended as a
detailed guide to self-representation. While
the information in the book will no doubt
assist those defendants who choose self-
representation, the authors assume that
those facing criminal charges for which jail
or prison is a possibility are represented
by an attorney, either privately retained
2
|
THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM
or appointed at government expense. The
book is, however, designed to empower
criminal defendants by helping them
understand every phase of the criminal
justice process and what types of defenses
and strategies are available to them.
If you are charged with a crime and
seek to represent yourself, understand that
criminal laws and procedures can be so
complex that even judges can get them
wrong. In one California case, for example,
Garcia (a prison inmate) was charged with
carrying a concealed weapon in prison.

Garcia represented himself, and he asked
the judge to order the sheriff to bring a few
other prisoners to court so that they could
testify on his behalf at the trial. The judge
refused Garcia’s request, on the ground that
Garcia first had to serve subpoenas on the
prisoners and Garcia hadn’t done that. As
the judge told Garcia during the trial,
“That’s your problem, Mr. Garcia, that’s
not the court’s problem. We’re not here to
practice law or do your work for you … I
will not give you suggestions. I will not give
you advice. I have previously encouraged
you to consult with counsel … you’ve
declined that.”
Despite this rather condescending
lecture, the judge was wrong. Under
California law, the judge could order the
prisoners to be brought to Garcia’s trial
even if Garcia had not subpoenaed them
(People v. Garcia, Cal. Ct. of Appeal 2008).
Throughout the book, we have included
examples that illustrate specific questions,
sample dialogues of court proceedings,
and specific tips for the reader. Sample
documents commonly used in the criminal
justice process are located at the end of the
chapter in which they are discussed. The
examples are provided as illustrations only.
They are not designed to predict exactly

what will happen in a particular case.
This book describes the criminal justice
system as it tends to operate throughout
the country. But each state, as well as the
federal government, has its own set of
criminal laws and procedures. Thus, if you
need to know the terms of a specific law,
or the procedures your local court will
follow, you will need to consult the rules
for your jurisdiction. Chapter 27 explains
how to find such rules and other important
information in a law library and on the
Internet.
●
Introduction:
A Walk-rough of the Case of State v. Andrea
Davidson, a Fictional Robbery Prosecution
T
his walk-through is intended to
quickly familiarize you with what
may happen as a case wends its way
through the criminal justice system. While
no two cases follow the identical procedural
path, the example provides an overview of
the entire process and serves as a guide to
where you’ll find answers to the questions
posed in the walk-through, as well as loads
of additional important information.
Andrea Davidson is walking along a
public street when Officer Kevin Daniels

walks up to her and says, “Excuse me,
I’d like to ask you a few questions.”
Can the officer legally do this?
Does Officer Daniels have to possess
reliable information connecting Andrea to
criminal activity before he can question
her?
Does Andrea have to answer the officer’s
questions? Is it a good idea for her to talk
to the officer even if she doesn’t have to?
If Andrea believes that she has done
nothing wrong, does she have anything to
lose by talking to the officer?
See Chapter 1, Talking to the Police.
For many folks who are stopped and
questioned, lawfully or otherwise, contact
with the criminal justice system ends after
the police finish “on the street” questioning.
But as an example in our walk-through,
Andrea has a long road ahead of her. Before
questioning Andrea, Officer Daniels proceeds
to “frisk” her (pat down her outer clothing).
What’s the difference between a frisk and
a search?
Can police officers search suspects as a
matter of routine?
If, during the frisk, the officer feels what
seems to be a suspicious object, can the
officer remove it from Andrea’s clothing?
See Chapter 2, Search and Seizure.

Officer Daniels removes a gun from
Andrea’s coat and arrests her for
carrying a concealed weapon.
What constitutes an arrest?
Do police always take an arrested suspect
to jail?
Was the officer required to get a warrant
before arresting Andrea?
See Chapter 3, Arrest: When It Happens,
What It Means.
Andrea is taken to jail by Officer Daniels.
What will happen to Andrea when she’s
booked into jail?
How soon will Andrea have a chance to
bail out of jail?
What’s the difference between posting
cash bail and buying a bail bond?
See Chapter 5, Booking and Bail: Checking
In and Out of Jail.
Feeling very alone and scared, Andrea
considers contacting a lawyer.
Does Andrea have a right to an attorney?
What if she can’t afford to hire one?
If Andrea wants to represent herself,
does she have a right to do so? Is self-
representation generally a good idea?
How can Andrea find a lawyer if she’s in
jail?
What’s the difference between private
lawyers and public defenders?

If Andrea is represented by a lawyer, does
the lawyer make all the decisions?
If Andrea talks to the lawyer while she’s
in jail, is their conversation confidential?
What does it mean for the government to
have to provide Andrea with “due process
of law”?
See Chapter 7, Criminal Defense Lawyers,
Chapter 8, Understanding the Attorney-
Client Relationship in a Criminal Case, and
Chapter 17, Fundamental Trial Rights of the
Defense.
Multiple Coverage of Some Subjects
As you read through the book, you may
notice that the same topic may arise in
more than one chapter. For example, we
refer to “motions in limine” in Chapters
19 and 21. We do this to reduce cross-
referencing and to help readers who want to
read about a particular part of the criminal
justice process before reading the book
from beginning to end.
Suspecting that Andrea was the culprit who
had robbed a convenience store a short time
before her arrest, Officer Daniels and another
police officer question Andrea about her
whereabouts at the time of the robbery.
What are the “Miranda rights” that police
officers often read to suspects?
If the police fail to warn Andrea of her

Miranda rights, does the case have to be
thrown out?
If Andrea starts talking to the police
before they can warn her about her
Miranda rights, can what she says be
used against her in court?
See Chapter 1, Talking to the Police.
Officer Daniels asks Andrea to participate
in a lineup to determine whether the store
owner who was robbed at gunpoint, Hilary
Julia, is able to identify Andrea as the robber.
What happens at a lineup?
Does Andrea have to participate in the
lineup?
4
|
THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM
Instead of conducting a lineup, could
the police have shown the store owner a
picture of Andrea?
If Andrea has a lawyer, does she have the
right to have her lawyer attend the lineup?
Can the police compel Andrea to speak
during the lineup?
See Chapter 4, Eyewitness Identification:
Psychology and Procedures, and Chapter 17,
Fundamental Trial Rights of the Defense.
Andrea’s answers to Officer Daniels’s
questions lead the officer to suspect that
evidence linking Andrea to the robbery

is inside her home (such as some of the
loot and a cap that the robber wore
during the robbery). Officer Daniels
wants to get hold of this evidence.
Does the officer need to obtain a search
warrant before entering Andrea’s home?
If the officer legally enters Andrea’s house
looking for evidence connecting her to the
robbery and finds illegal drugs, can the
officer seize the drugs and charge Andrea
with another crime?
If the officer enters Andrea’s house
illegally, does the case against her have to
be dismissed?
See Chapter 2, Search and Seizure.
Andrea is formally charged
with armed robbery.
Does Officer Daniels make the decision
about whether to charge Andrea with a
crime?
How long does the government have to
decide whether to charge Andrea with a
crime?
Does the prosecutor have to seek an
indictment from a grand jury?
What does the prosecution have to prove
to convict Andrea of armed robbery?
See Chapter 6, From Suspect to Defendant,
and Chapter 12, Crimespeak: Understanding
the Language of Criminal Laws.

Andrea is taken to court and “arraigned”
on the armed robbery charge.
What will the courtroom be like?
If Andrea doesn’t have a lawyer yet, what
should she do? Can she represent herself?
What happens at an arraignment?
Is the arraignment judge authorized to
release Andrea from jail?
See Chapter 9, A Walk Through Criminal
Court, and Chapter 10, Arraignments.
Andrea tells the arraignment judge that she
wants a lawyer but can’t afford to hire one, so
the judge appoints a lawyer to represent her.
Will the attorney ask Andrea to tell her
side of the story?
Can the attorney do anything to help
Andrea if she tells the attorney that she
committed the robbery?
What kinds of legal challenges can a
defense attorney make before a case goes
to trial?
Does the lawyer have to keep everything
Andrea says confidential?
INTRODUCTION|5
What decisions about her case does
Andrea have the right to make?
See Chapter 8, Understanding the Attorney-
Client Relationship in a Criminal Case,
Chapter 11, Developing the Defense Strategy,
and Chapter 19, Motions and Their Role in

Criminal Cases.
Andrea’s lawyer talks to her about the
possibility of entering into a plea bargain.
What rights would Andrea give up by
pleading guilty?
Can her lawyer insist that Andrea enter
into a plea bargain?
What does Andrea have to gain by
pleading guilty?
What factors will influence any “deal” that
Andrea is offered?
What is the judge’s role in the plea
bargaining process?
See Chapter 10, Arraignments, and Chapter
20, Plea Bargains: How Most Criminal Cases
End.
Andrea pleads not guilty at the arraignment,
and decides that even though she has a
lawyer she should try to find out more
about the crime she’s charged with.
Andrea’s lawyer tells her that robbery is a
specific intent crime. What does “specific
intent” mean, and how will the prosecutor
try to prove it?
What are the possible defenses that
Andrea can raise at trial?
If Andrea wants to do legal research in
a library or on a computer, how can she
find information relevant to her case?
See Chapter 11, Developing the Defense

Strategy, Chapter 12, Crimespeak: Under-
standing the Language of Criminal Laws,
Chapter 13, Defensespeak: Common
Defenses to Criminal Charges, and Chapter
27, Looking Up the Law.
At the conclusion of Andrea’s
arraignment, the judge schedules a
date for a preliminary hearing.
What is the purpose of a preliminary
hearing?
Do Andrea and her lawyer have a right to
be present at the preliminary hearing?
How can a preliminary hearing benefit
the defense?
See Chapter 16, Preliminary Hearings.
At the conclusion of Andrea’s preliminary
hearing, the judge finds there is probable
cause to try her for robbery and sets
her case for trial. Andrea’s attorney
tells her, “I’ll continue gathering
information in preparation for trial.”
Does the prosecutor ever have to turn
information over to the defense?
Does the defense ever have to turn over
information to the prosecutor?
Does the defense have a right to interview
prosecution witnesses?
What can Andrea do to help her attorney
investigate the case?
6

|
THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM
See Chapter 14, Discovery: Exchanging
Information With the Prosecution, and
Chapter 15, Investigating the Facts.
ough most cases end with
dismissals or guilty pleas before trial,
Andrea’s case does go to trial.
Why does the prosecution get to present
its evidence first?
What is the hearsay rule?
If Andrea testifies, can the prosecutor
offer evidence of her previous illegal
conduct?
Is Andrea entitled to a jury trial?
Can the prosecution force Andrea to
testify?
Does Andrea have to convince the judge
or jury of her innocence?
See Chapter 17, Fundamental Trial Rights
of the Defense, Chapter 18, Basic Evidence
Rules in Criminal Trials, and Chapter 21,
The Trial Process.
Andrea is found guilty of armed robbery
and a date is set for sentencing.
What happens at a sentencing hearing?
How might Andrea be punished other
than or in addition to going to jail?
What factors are likely to affect Andrea’s
sentence?

What can Andrea do to earn the lightest
possible sentence?
If, after she’s been found guilty, Andrea
uncovers for the first time an important
witness who supports her alibi defense,
what can she do?
See Chapter 19, Motions and Their Role
in Criminal Cases, and Chapter 22,
Sentencing: How the Court Punishes
Convicted Defendants.
Andrea believes that her conviction was
a mistake and wants to appeal it.
How do appellate court judges find out
about what took place at Andrea’s trial?
Will appellate court judges consider
Andrea’s argument that the jury shouldn’t
have believed the prosecutor’s witnesses?
If the trial judge made an error of law, will
the appellate court necessarily overturn
Andrea’s conviction?
See Chapter 23, Appeals: Seeking Review by
a Higher Court.
e conviction is overturned because
the judge mistakenly barred certain
evidence from the trial. Andrea is retried
and this time is found not guilty.
Can the prosecutor appeal the not guilty
verdict to a higher court?
Can the prosecutor refile the armed
robbery charge in the future if new

evidence turns up?
Can the prosecutor ask the judge to order
a new trial on the ground that the jurors
afterwards said that they thought that
Andrea was guilty but that she didn’t
deserve punishment?
See Chapter 13, Defensespeak: Common
Defenses to Criminal Charges, Chapter 17,
INTRODUCTION|7
Fundamental Trial Rights of the Defense,
and Chapter 19, Motions and Their Role in
Criminal Cases.
Andrea’s conviction and five-year prison
sentence are upheld on appeal, so Andrea
has to serve time in state prison.
Can Andrea do anything to improve bad
prison conditions?
If Andrea has a child, will she lose
custody of her child?
Can Andrea vote while she is in prison or
after she is released?
Can Andrea earn money while she is in
prison?
Does Andrea have a chance to be
released early on parole?
See Chapter 26, Prisoners’ Rules.
Comparison of Federal and State Systems
e vast majority of criminal prosecutions
take place in state courts. e list below
highlights some of the key differences

between state and federal criminal systems:
•Jurisdiction (“power” to decide cases).
A state has power over defendants who
violate the laws of that state. e federal
government has power over defendants
who commit criminal acts on federal
property (for example, an assault in
a national park) or whose criminal
acts cross state lines (for example, a
kidnapper who transports a victim
from Iowa to Missouri). e federal
government also has jurisdiction over a
group of federally defined crimes such
as offenses related to immigration fraud
and U.S. customs violations. A state
and the federal government can have
“concurrent” power over a defendant
when the same criminal activity violates
both state and federal laws (for example,
selling drugs or robbing banks). In those
situations, state and federal prosecutors
make case-by-case decisions as to whether
a defendant will be prosecuted in state or
federal court.
•Police Officers. Typical state police officers
are county sheriffs and city police officers.
Typical federal police officers are agents
of the FBI and DEA (Drug Enforcement
Administration).
•Prosecutors. Federal criminal prosecutions

are handled by U.S. attorneys, who are
appointed by and are ultimately respon-
sible to the U.S. Attorney General. State
prosecutors, many of whom are elected on
a countywide basis, carry a variety of titles,
common ones are district attorney, state’s
attorney, and city attorney.
•Defense Attorneys. Most criminal defend-
ants qualify for government-paid defense
attorneys. Government-paid attorneys are
usually employed either by an office of
the Federal Public Defender or a county’s
Public Defender office. (For information
8
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THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM
Comparison of Federal and State Systems (continued)
about the differences between
government-paid and privately retained
defense attorneys, see Chapter 7.)
•Trial Courts. Most federal criminal
prosecutions occur in United States
District Courts. State courts carry such
titles as “superior court,” “municipal
court,” “police court,” or “county
court,” depending on the state and the
seriousness of criminal charges.
•Judges. Federal trial judges are known
as District Court judges, they are
appointed for life by the president,

subject to confirmation by the U.S.
Senate. State court judges are typically
initially appointed by governors and
then are subject to election every few
years. State court trial judges carry such
titles as Superior Court Judge, Municipal
Court Judge, and (in New York) Supreme
Court Judge. In both state and federal
courts, magistrates may preside over
pretrial hearings such as bail hearings, as
well as less serious criminal trials.
•All-Purpose vs. Specialized Judges.
Federal courts use the “all-purpose
judge” system. is means that the same
judge almost always presides over a case
from beginning to end— that is, from
a defendant’s first court appearance to
final acquittal or sentencing. Some states
also follow the all-purpose judge model.
In many states, however, judges are
specialized. For example, one judge may
determine bail (see Chapter 5), another
judge may hear pretrial motions (see
Chapter 19), and a third judge may preside
over a trial (see Chapter 21).
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INTRODUCTION|9