Criminal Law Chapter

1. About Criminal Law

Criminal Law is the area of law that deals with criminal offenses, sometimes called penal
law. What makes this field unique, is that the court may impose a sentence of incarceration (jail or
prison term) – this cannot happen in civil cases. The accused person is called a defendant. The
police investigate crimes and make arrests. The Prosecutor will formally charge the defendant by
filing criminal charges with the court – similar to filing a claim in a civil case.
Criminal offenses, or crimes, are offenses against society and not just against an individual;
although, many crimes do have a victim – not all do. A victim is someone who was directly harmed
by a criminal offense. A judge may order restitution for the victim (the defendant has to pay
money to the court, who will then give the money to the victim, to pay for the losses they have
suffered). A victim may ask the police or the government to prosecute the defendant – but it is the
prosecutor who makes the final decision. Sometimes the prosecutor will prosecute a defendant
that the victim does not want to prosecute, or may decline to prosecute a defendant that victim
wants prosecuted.
In the United States, prosecutor is a generic term for the lawyer who represents the
government in a criminal case. In most state systems, the chief prosecutor is elected, although
most cases are handled by a deputy or assistant. Common titles for the prosecutor (and their
deputies) are: State Attorney (assistant state attorney); County Attorney (deputy county attorney);
District Attorney (assistant district attorney); and in the federal system, U.S. Attorney (assistant US
attorney).
The defense attorney (i.e., defense counsel) is the attorney who represents the defendant.
Often, defendants cannot afford an attorney and so the state provides the services of a public
defender for free or a reduced price.
Crimes are categorized as either felony or misdemeanor. Felonies are serious crimes and
the possible punishment is over one year in prison. Misdemeanors are minor offenses and the
possible punishment is less than one year in jail.
First Appearance is the first time an accused person sees a judge. The judge will normally
review the probable cause affidavit completed by the arresting officer to make sure there is a
prima facie case – but will not determine if the defendant is guilty or not guilty at this time. The
judge will set a bond amount; this is sometimes called bail. For minor cases, the judge may
conduct the arraignment and even issue the sentence. Otherwise, the judge will assign the case to
a docket and judge and set the next court date.
Arraignment is the court appearance where the defendant is formally told of the charges
and is asked to enter a plea – either guilty or not guilty.
Pre-trial Conference is a court appearance between the arraignment and the trial. Often,
administrative matters are discussed in preparation for trial. However, sometimes motion
hearings will be held – this is where one party (usually the defendant) moves (makes a motion) for
the judge to issue a ruling. A common motion would be to determine if the search of the
defendant was unconstitutional; if the judge agrees and rules that it was unconstitutional – then
any evidence found as a result of the search would be deemed inadmissible and could not be
considered by the court. This may have the result of the case being dismissed.
A trial is an evidentiary hearing on the merits of the case. Most criminal trials are jury
trials, where fellow citizens determine if the defendant is guilty or not guilty. Usually there are 6 or
12 jurors. However, sometimes a defendant chooses to have a bench trial – where the judge
decides. For a jury trial, the jury is considered the ‘finder of fact’ and the judge is the ‘finder of

Criminal Law Chapter, T.J.A. Barrett Page |1

law’. For example, it is up to the jury to determine if they believe what the witness said – that is a
question of fact. The judge should explain the law to the jury; this happens throughout the trial,
however formal jury instructions are given at the end of the trial.

2. Questions on the text

1. After being arrested, the defendant will see the judge for _______________ and
2. the judge will set _______________.
3. The _______________ makes the formal decision to charge the defendant with the crime
or not.
4. Although most criminal cases are settled by plea bargains, if a deal is not reached by a
certain time then the judge will set the case for _______________.
5. If the defendant cannot afford an attorney, they can request the _______________
6. At the _______________ the defendant will be asked to enter a plea.
7. If it is a serious crime, the judge may delay sentencing to allow the _______________ to
speak – either to the prosecutor or in open court.
8. Most criminal trials are _______________.
9. The _______________ is the ‘finder of fact’ and is responsible for determining which
witnesses to believe or disbelieve.
10. The _______________ has the burden of proof in a criminal trial.
11. If the _______________ believes the officer’s search of the defendant was improper,
he/she can move to suppress the evidence and the judge will conduct a motion hearing.
12. The _______________ is the ‘finder of law’ and is responsible for determining what is the
law, as it relates to this case.
13. If the judge rules that evidence is _______________, then it will not be shown to the
14. jury. If it is a _______________, the judge would not consider this evidence.
15. It is common for a defendant to be alone when he appears in court for the First
Appearance; however, usually defendants will have a _______________ with them for the
arraignment.

3. Conversation: John visits the County Jail

John works in the public defender’s office. He is visiting his clients in the county jail, when
he meets Frank for the first time. Their conversation is below.

John: Hello! My name is John Costas, I am a lawyer at the public defender’s

office.
Frank: Hey Johnny, it is nice to meet you. When can I get out of here?

Criminal Law Chapter, T.J.A. Barrett Page |2

 John: Well, let’s look at your case file. You are accused of burglary of a
dwelling.
Frank: Yea, yea. I don’t know about that – I wasn’t near any dwelling. They
arrested me in my friend Sam’s house.
John: A house is a type of dwelling; a dwelling is a place where people live
or sleep.
Frank: Well, Sam was not there at the time! It was empty!
John: That does not really change anything. It was Sam’s home? That was
where he lived? What kind of building was it?
Frank: Yes, but he had been gone for a few days. It is a one-story house.
John: It sounds like it is a dwelling. Why were you there?
Frank: Well, Sam owed me some money, so I went there to see if he had it
yet.
John: But you said he had not been there for a few days?
Frank: Yes. But I did not know that at the time. I thought he might be
inside, just trying to avoid talking to me.
John: So why did you enter the house?
Frank: I went in to try to find him.
John: Did you intend to take anything?
Frank: Steal anything you mean? Of course not! I just wanted to get inside
and find Sam, talk to him. Why, is that important?
John: Yes it is! I think we may have a valid defense!

4. Conversation Questions
Answer in one complete sentence.
1. Who/what is John??
__________________________________________________________________________
__________________________________________________________________________
2. Who/what is Frank?
__________________________________________________________________________
__________________________________________________________________________

3. Where are they meeting and why are they meeting there?
__________________________________________________________________________
__________________________________________________________________________
4. What Is Frank arrested for?
__________________________________________________________________________
__________________________________________________________________________
What does the word ‘valid’ mean?
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

Criminal Law Chapter, T.J.A. Barrett Page |3

 5. What do you think the valid defense that John will raise is?
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

6. (Circle all that apply.) A dwelling is a(n) …

a) Apartment e) Summer i) Home
b) Barn home j) House
c) Building f) Garage k) Office
d) Car g) Guard house l) Store
h) Guest house m) Van

5. Fill in the blank

John Costas works as a (1)____________________ ; he defends people accused of crimes,

but who cannot afford an attorney, so one is appointed to represent them. He specializes in
(2)____________________ and in fact does not handle any civil cases. Every Tuesday he goes to
the local (3)____________________ , to meet his clients who have not been able to post
(4)____________________ ; these clients will remain in (5)____________________ until their
cases are concluded, they are able to raise enough money, or the judge lowers the bail
requirement.
John usually handles (6)____________________ , but on Mondays he appears for
(7)____________________ and so represents anyone who was (8)____________________ by the
police over the weekend, whatever the crime they are accused of, including
(9)____________________ crimes.
On Thursdays, John appears in front of judge Springfield, for (10)____________________ ;
these are the first time these (11)____________________ are in J. Springfield’s court, and he
informs them of their charges, which are the criminal [offenses] that they are
(12)____________________ of committing. They will also receive a copy of the criminal
complaint, with one copy for their lawyer. If they have not hired a lawyer, the judge will ask them
if they are going to hire a private (13)____________________ or if they are requesting the help of
the public defender’s office.
The judge will also ask the (14)____________________ how do they
(15)____________________ . For this important question, there are only two possible answers:
either (16)____________________ or (17)____________________ . If they plea guilty, the judge
will usually sentence them then and there; however, if there is a (18)____________________, the
court may wait to find out if there is any restitution requested or if they want to make a statement
to the court before sentencing. If it is a serious crime the judge may order a Pre-Sentence
Investigation, which is a report usually prepared by the state probation office.
After this court date, the clerk will set it for a (19)____________________ in about a
month. At this court hearing, the (20)____________________ and defense counsel will inform the
court if they are ready for trial or if there are any motions. Sometimes, the defense counsel will
request a (21)____________________ to argue some aspect of the case in front of the judge.
Eventually, if they cannot negotiate a plea, the judge will set it for a jury
(22)____________________.

Criminal Law Chapter, T.J.A. Barrett Page |4

6. Grammar: Word Forms
In English, the same or similar word forms are often used. Although the meanings are
similar, it can be important to choose the correct word form. Verbs and nouns may have multiple
forms.
For the sentences below, choose the correct form of the word.
Prosecute / Prosecutor / Prosecuted / Prosecution
1. Erin is a ____________________ and is handling the case against my client.
2. In court, the ____________________ will ask the judge for a prison sentence
3. My client is being ____________________ for burglary.
4. Yesterday, I met with Erin and tried to convince her not to ____________________ my
client for this charge.
5. Erin made it clear, she would not agree to end the ____________________ without a valid
reason.
Admissible / Inadmissible / Admit / Admitted / Admissibility
6. Before the trial began, the judge ruled on the ____________________ of the confession,
but did not rule on other pieces of evidence.
7. Mr. Barber moved the court to ____________________ the audio recording into evidence.
8. However, the defense counsel objected, since the recording was recorded secretly and
without the defendant’s knowledge. Accordingly it was obtained illegally and should be
ruled ____________________.
9. After hearing further arguments from both counsel, the judge ruled that that the recording
was not obtained illegally and that it would be ____________________ into evidence.
10. The judge later ruled the photographs were also ____________________.

7. Prepositions
For the sentences below, choose the correct preposition.

With / On / At / In
1. The judged ordered the lawyers to be ready for the trial ______ April.
2. My client is charged ______ the murder of James Robison.
3. We have our first court hearing ______ 10 May.
4. I will meet you ______ the courthouse.
5. The burglary took place ______ Elm Street.
6. Do you know anyone who works ______ the homicide squad?
7. That information is ______ the case file.
8. This is Detective Peterson; he is working ______ the Robison case.
9. Mandy is my brother’s wife, which makes her my sister ______ law.
10. I accepted a new position! I am now a partner ______ Mahon & Hanson.
11. Tell Margaret, to meet us ______ the courtroom.
12. Mr. Brown did not have time to meet today; he told us to comeback ______ Monday.
13. ______ the springtime, the city will become green again.

Criminal Law Chapter, T.J.A. Barrett Page |5

 14. James was a very successful attorney ______ law.
15. Your client refused to help ______ the police investigation.
16. The car crash occurred ______ the corner of Elm Street and Main Street.
17. Mary kept her wallet ______ her purse.
18. Mr. Daly is in court all morning, but he can see you ______ the afternoon.
19. Before leaving the room, he placed the keys ______ the table and his wallet
20. ______ the drawer.

8. Law Discussion
Burdens of Proof.
“The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of
proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution
or the claimant).” Oxford Dictionary of Law, 5th ed., p 59.
Normally, the plaintiff/prosecutor has the burden of proof. It is their responsibility to prove
their case. During trial, if they fail to do this before they ‘rest’, then the judge may dismiss the
case. There would be no reason to hear from the defense – since the alleged case was not
established.
However, in certain circumstances the defense is obligated to prove what they are alleging.
However, in criminal cases it is important to avoid ‘burden shifting’, or shifting the burden to the
defendant to prove their innocence. This is never required by the defendant. This may be grounds
for a mis-trial.
Reasonable Suspicion. This is the level required, before a police officer can even begin an
investigation or to stop a person. It has been described as reasonable suspicion that criminal
activity is afoot. A ‘hunch’ is not sufficient. However, if the officer can explain and articulate
suspicions, then a person may be detained briefly. This is called a Terry Stop, from the Supreme
Court case Terry v. Ohio 392 U.S. 1 (1968).
Probable Cause. This is enough for a police officer to make an arrest. Reasonable Grounds
to believe a crime has been committed, and has been committed by this person. This is the same
standard required to obtain a search warrant or an arrest warrant from a judge. However, this is
not sufficient for a conviction.
Beyond a Reasonable Doubt. This is required for a judge or jury to convict at the
conclusion of a criminal trial. This is a high burden and is significantly higher than preponderance
of the evidence, which is the normal standard for civil trials.

Black's Law Dictionary, 9th ed., p. 1380.

Criminal Law Chapter, T.J.A. Barrett Page |6

9. Discussion Questions

1. What is burden of proof?

2. Which party has the burden of proof? What happens if they fail to meet this
burden?
3. Where is this burden greater, in civil or criminal cases? Why?
4. How does this compare to your law? Is it the same or is it different?
5. What is reasonable doubt?
6. In a criminal trial, does this make it easier for the prosecution or defense?
7. Why do we have a presumption of innocence? Is it important?

10. Closer look at the law: Statute excerpt

Below is an excerpt from the Florida Statutes regarding the criminal offense of burglary.
Depending on other factors, the crime of burglary can be a 1st, 2nd, or 3rd degree felony. Notice
how the statute is organized: 1) there is a general explanation of burglary; 2) the individual
requirements for the 1st, 2nd, or 3rd degree felony for burglary are enumerated; 3) definitions of
terms used in this section of the criminal code are defined; 4) and a statutory explanation of
intent, regarding the offense of burglary.

Criminal Law Chapter, T.J.A. Barrett Page |7

11. Questions on the Statute

1. If a person enters a porch, with the intent to steal items on the porch – is that a burglary?
Why or why not?
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
2. If a person enters a yard surrounding the house, with the intent to steal items in the yard –
is that a burglary? What if the yard is fenced?
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
3. Why is intent important for this crime? What do you think are some of the common
examples of ‘intent’ for defendants convicted of burglary?
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
4. “Prima Facie” means on the face of it and establishes that there is sufficient evidence. Why
do you think the statute includes prima facie evidence of intent? Who does this help – the
prosecution or the defense?
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________

12. Further Analysis

1. This excerpt only includes the 2nd Degree felony offense. What do you think would be the
requirements for the 1st and 3rd degree felony offenses?
Start with the offense that is given. What would make this a more serious offense? What
would make it a less serious offense? What factors would be important? What do you think
the legislature would consider more (or less) dangerous? Or more (or less) serious?

Criminal Law Chapter, T.J.A. Barrett Page |8

2. The statute defines dwelling. Why is this important? Can you think of real life examples of
dwellings and structures? Is it always clear if a building is a dwelling or structure? What kind of
buildings might be ambiguous?
3. Should the court consider the burglary of certain buildings as more serious than other
buildings? Why or why not?

13. Discussion or Role-Play

With a partner, Role-play the roles of the defense counsel (John Costas) and the
prosecutor. (If you have a 3rd person – someone could play the role of Frank - the defendant).
The defense attorney should try to negotiate with the prosecutor. Asking if there is an offer
(if Frank agreed to plead guilty, what would be the recommended sentence)

14. Short writing exercise

John Costas believes his client may be innocent of the burglary charge. Frank entered the
house, albeit illegally, but did not intend to commit theft or any felony. He was seeking to find his
friend Sam and talk to him. Write an email to Scott Colon, the prosecutor for this case. Explain the
facts of the case, and ask for a reasonable solution.
Remember, this is an email and a little informal; however, you are still representing your
client. You are not trying to convince the court, but you are trying to persuade the prosecutor. You
may want to refer to the statute in section 11, or the facts learned in section

15. Lexicon

1. Accused 13. Defense Counsel 26. Plea (plead)

2. Admissible 14. Felony 27. Pre-trial Conference
3. Arraignment 15. First Appearance 28. Prison
4. Arrests 16. Guilty 29. Probable Cause
5. Bail 17. Inadmissible 30. Prosecute
6. Bench trial 18. Incarceration 31. Prosecutor
7. Beyond a Reasonable 19. Jail 32. Public defender
Doubt 20. Jurors 33. Reasonable
8. Bond 21. Jury Trial Suspicion.
9. Burden of Proof 22. Misdemeanor 34. Restitution
10. Criminal Law 23. Motion hearing 35. Trial
11. Defendant 24. Not Guilty 36. Unconstitutional
12. Defense Attorney 25. Offense 37. Victim

16. For more information

To look up more criminal offenses, you can search for any of the 50 states and criminal
offenses and you should be able to find them online. Here is a link to Florida’s:
http://www.leg.state.fl.us/STATUTES/ Scroll down to “Title XLVI Crimes” or “Title XLVII Criminal
Procedure and Corrections”.

Criminal Law Chapter, T.J.A. Barrett Page |9