Basics of Criminal Law
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Basics of Criminal Law
This document tells you the following:
- What is a Crime?
- What is the difference between a felony and a misdemeanor?
- Who are considered parties to a crime?
- How do you prove a crime has been committed in a court of law?
WHAT IS A CRIME?
Every day, we read about crime in the newspaper. We watch the news and see a suspect being handcuffed. There are also lawbased television programs. Some of these programs portray people committing crimes and detectives solving crimes, while others focus on the prosecution of criminals. All of the daily exposure makes us think we understand what a crime is, but do we really? What actually is a crime?
It's a Crime
Some acts definitely are crimes. For example, burglary, robbery, murder, rape, and theft by taking an automobile are all crimes. However, did you know that when a person speeds in an automobile, he or she is committing a crime-or that when someone is told never to come back to a particular store but does it anyway, he or she is committing the crime of criminal trespass?
Lying to a police officer about your name or birth date is also a crime. Slapping another student in the face may be the crime of "simple battery." These are all acts that might not immediately be thought of as crimes; they are not the crimes we read about or see on television. According to the law in Georgia, however, they are crimes. People who commit these acts might be arrested and even convicted. They might be required to pay a fine, perform some community service, or serve time in jail.
Like all states, Georgia defines and describes every act that may be a crime. These definitions are contained in the Official Code of Georgia Annotated (O.C.G.A.). This Code is a series of books divided into titles according to subject. Crimes are defined in Title 16. Most acts that are crimes in Georgia are also crimes in other states (for example, murder, rape, and robbery). Some acts, however, may not be crimes in other states. Nevertheless, anyone who is in Georgia must abide by the laws in Georgia. It does no good to say, "but I didn't know this was a crime in Georgia."
Anyone may familiarize him or herself with these laws of Georgia by going to the public library or a law library and looking at Title 16 of the Georgia Code. The Georgia Code can now also be accessed on the Internet at www.ganet.org.
Legal Definition of a Crime
The Georgia legislature has defined a crime as "a violation of a statute (law) of this state in which there is a joint operation of an act or omission to act, and intention or criminal negligence." Let's take a closer look at this definition.
Let's say Jake is throwing a baseball against a neighbor's house just to see how hard he can throw the ball. Then, on the 15th throw, he breaks the neighbor's window. Has Jake committed a crime?
The act in the above example is throwing the baseball. What was Jake's intent? It was not to break the window; it was to see how hard he could throw the ball. If the law only considered actual intent, this example would not meet both elements of the definition of a crime.
However, the law also considers criminal negligence. Criminal negligence occurs when actions are taken without regard to their consequences. A judge could decide that when Jake threw the ball at his neighbor's house, he did so without considering the possibility of breaking a window when he should have known better. Therefore Jake could be guilty of a crime (criminal damage to property or criminal trespass) because of criminal negligence.
Let's take a more serious example. Henry is driving home from a party at which he drank a lot of beer. Because he is intoxicated, he veers into the wrong lane and hits an oncoming car. The other driver is killed. What was the act? Driving under the influence of alcohol. What was the intent? Surely it was not to kill the other driver. Has Henry committed a crime? Yes. Even though Henry did not intend the consequences of his act, the law will say that he was criminally negligent when he drove while under the influence. Henry acted with complete disregard for the safety of others on the road. Therefore, he is guilty of a very serious crime (vehicular homicide).
Felonies and Misdemeanors
There are two classifications of crimes: felonies and misdemeanors.
A felony is generally considered a more serious crime. Felonies include, but are not limited to, the following: possession of cocaine, heroin, LSD, and other drugs, including the possession of one or more ounces of marijuana; robbery; armed robbery; aggravated assault; burglary; theft by taking; theft by receiving stolen property; murder; rape; child molestation; and kidnapping.
Crimes in Georgia (partial list)
A homicide committed with aforethought (i.e., the murderer planned to kill the victim).Felony Murder
Death or life imprisonment
A homicide committed while committing a felony (e.g., armed robbery or rape).
Death or life imprisonment
A homicide committed when the person acts as the result of a "sudden, violent, and irresistible passion" resulting from provocation sufficient to cause it (e.g., a homicide resulting from a family quarrel).
A homicide committed unintentionally or while committing an unlawful act other than a felony, likely to cause death or great bodily harm (e.g., a homicide accidentally resulting from someone firing a gun in the city limits [misdemeanor]).
Or a homicide committed while unlawfully committing a lawful act.
The abducting or stealing away of any person without lawful authority and the holding of that person against his or her will.
Kidnapping a person for ransom or injuring the person kidnapped.
Death or life imprisonment
An attempt to violently injure another or an act which makes another fear immediate violent injury.
Assault with intent to murder, rape, or rob or with a deadly weapon.
If victim is 65 or over.
Physically harming another intentionally or "making physical contact of an insulting or provoking nature with another."
Maliciously harming another by depriving person of a member of body, rendering member of body useless, or seriously disfiguring body or a member thereof.
If victim is 65 or older.
If victim is peace officer.
A breach of one's duty of allegiance to one's state or country. Levying war against the state or country or giving aid or comfort to the enemies of the state or country.
15 yrs.-Life imprisonment or death
The intentional and malicious burning of a building.
Harm to a place where people live.
1-20 yrs., or up to $50,000 fine
Harm to all other types of property.
1-10 yrs., or up to $25,000 fine
Damage to personal property by fire or explosion.
1-5 yrs., or up to $10,000 fine
Essentially, entering upon the premises or land or vehicle (auto, railroad car, aircraft, or watercraft), of another knowingly and without authority for an unlawful purpose or after being forbidden to do so. Trespass can also be not leaving when notified to leave another's property.
Intentionally damaging the property of another (damages of $500 or less) or interfering with another's holding or use of property. In both cases, the acts would be without consent of the property holder.
When a person has carnal knowledge (sexual intercourse) by force against the victim's will.
10-20 yrs. or life imprisonment
When a person engages in sexual intercourse with another under the age of 16, not his/her spouse, even where there is consent.
Where the victim is 14 or 15 and the offender is no more than 3 years older than the victim.
Offering, performing, or consenting to sexual intercourse for money.
Taking the property of another where the offender uses a weapon.
10-20 yrs., life imprisonment, or death
Entering into the building of another with the intent to commit a felony therein.
Taking the property of another by force, intimidation, or sudden snatching.
Where the victim is 65 years or older.
Theft by Conversion
When having lawfully obtained money or property of another, under an agreement to do something specific with it, a person knowingly converts it (takes it) for his/her own use.
If amount in question is greater than $500.
Theft of Lost or Mislaid Property
Where a person comes into control of property that he/she knows or discovers has been lost or mislaid and takes it for him-/herself and appropriates it without taking responsible measures to restore the property to its owner.
If the value of the property is greater than $500.
Theft by Taking
Where a person unlawfully takes or after being in lawful posession of, unlawfully appropriates (takes, keeps) the property of another with the intention of depriving that person of the property.
If the value of the property is greater than $500.
Theft by Receiving Stolen Property
Where a person receives, disposes of, or retains stolen property which he/she knows or should know was stolen unless done with the intent to return it to its owner.
If the value of the property is greater than $500.
Note: If an auto is involved in any of the above.
Where property subject to the theft is valued at $100 or less.
Where property subject to the theft is valued at more than $100.
Judge may treat any theft crime as a misdemeanor.
Delivering as well as making a forgery (i.e., presenting a forged check for payment).
Making a forgery but not delivering the forged document.
Financial Transactions (Credit Card Fraud)
Where a person with the intent to defraud uses unlawfully the credit card of another.
1-2 yrs. or $100 fine
If amount is $500 or less.
If amount is over $500.
1-3 yrs. or fine
An intended death resulting from traffic offense including hit-and-run, driving under the influence, reckless driving, or while fleeing a police officer.
An unintended death resulting from traffic offense other than those described in first degree offense.
First or Second Offense
Third, Subsequent Offense
High and aggravated misdemeanor
Driving in reckless disregard for the safety of persons or property.
Knowingly making a false statement material to the issue when under oath.
Not more than $1,000 and/or 1-10 yrs.
A false statement on a document when under oath. (For example, making a false statement after being sworn before a notary public.)
Not more than $1,000 and/or 1-5 yrs.
Offering a public official something of val-ue with the intent of influencing him or her, or the functions of his/her office.
Not more than $5,000 and/or 1-20 yrs.
Making a false fire alarm.
Making a false public alarm (as of a bomb).
Carrying a Concealed Weapon
Two or more persons committing unlawful act of violence.
Fighting by two or more persons in a public place, in disturbance of public tranquility.
Threatening to commit violent crime, or to burn or damage property with intent to terrorize another or to cause evacuation of a building.
Up to $1,000 and/or 1-5 yrs.
Discharging firearm on or within 50 yards of a public highway or street or on someone else's property without permission or legal justification.
Georgia law classifies drugs (except marijuana in its unrefined state) into five schedules.
Schedule I and II Drugs
Possession with intent to sell or selling.
10-40 yrs. or life imprisonment
Trafficking. Possession of 28 grams or more, or selling any amount.
Mandatory minimum: 10-25 yrs.; and mandatory fine: $200,000- $1 million
Schedule III, IV, & V Drugs
Possession with intent to sell or selling.
Possession of 1 oz. or less.
Possession of over 1 oz. but no more than 50 Ibs.
Possession of or selling over 50 Ibs.
Mandatory minimum: 515 yrs.; and mandatory fine: $100,000-$1 million
*All misdemeanors may be punished by incarceration in a local correctional facility for up to 12 months and/or a fine of up to $1,000.
Note: This figure lists general penalties in Georgia. It does not indicate all possible fines and forfeitures.
The table above lists many crimes, together with their definitions and ranges of punishment. Generally, the punishment for a felony is a prison term of a minimum of 1 year and a maximum of 20 years. The punishment time for a particular offense, however, may vary greatly. For example, possession of cocaine with the intent to distribute carries a penalty of 5 to 30 years. As figure 151 shows, a second conviction for that offense could carry a life sentence. Some felonies, like forgery, carry a maximum of 10 years; theft by taking property that is not an automobile carries 10 years; and entering an auto carries 5 years.
The more serious felonies-such as murder, rape, kidnapping, and armed robbery-are called capital felonies. The penalties for these crimes can be long prison terms, life imprisonment, or in the case of murder, even death. Furthermore, under recent guidelines, the minimum term for certain serious felonies, including the ones just mentioned, is 10 years without parole. (The minimum term for murder is a life sentence.) A person convicted of armed robbery, kidnapping, or rape will serve the full minimum term of 10 years in prison. Also, under Georgia law, if the sentence is greater than the minimum term, every day of the greater sentence will be served. This requirement means that a defendant sentenced to 20 years on one of these charges will be released only after serving the full sentence.
Misdemeanors are generally less serious crimes than felonies. Most misdemeanors are punishable by a prison term of 1 to 12 months. A misdemeanor term is always expressed in months, whereas a felony term is always expressed in years. So, if someone committed the crime of possession of marijuana and was sentenced to two years, the crime is a felony. Had the crime been a misdemeanor, the sentence would be stated in months.
Although most misdemeanors are punishable for 1 to 12 months, there are exceptions. For example, shoplifting is a misdemeanor if the value of all the items taken is less than $300. However, if someone has been convicted of shoplifting three times, the fourth charge may be considered a felony even if the value of the item taken was only $5. Therefore, the punishment may exceed 12 months. In fact, there are people facing sentences of up to 10 years for shoplifting a sandwich, batteries, or hair spray. These sentences represent the state's way of punishing people who commit the same crime again and again.
For some crimes, the amounts of money or drugs involved may be considered in determining whether the crime is a misdemeanor or a felony. For example, marijuana possession is a misdemeanor if less than one ounce is involved. It is a felony if more than one ounce is involved. Shoplifting also becomes a felony if more than $300 worth of goods are taken.
The punishment for intentionally damaging the property of another person without his or her consent similarly depends on the amounts of money involved. If the value of the damage is $500 or less, the crime is considered a misdemeanor offense of criminal trespass. This misdemeanor carries a sentence of 1 to 12 months. When the cost of damage is greater than $500, the accused is charged with the felony of criminal damage to property in the second degree. This felony is punishable by imprisonment for one to five years.
The sentencing ranges previously described for both felonies and misdemeanors are not mandatory jail sentences in all cases. The judge may elect to sentence the defendant to probation instead of incarceration. If the judge elects to choose probation as an alternative to incarceration, he or she usually will require certain conditions of probation, such as community service or fines. Probation programs are discussed in more depth in chapter 19.
HAS A CRIME HAS BEEN COMMITTED?
You have learned about the two parts of a crime: act and criminal intent. Also, you now know the difference between a felony and a misdemeanor. Using that information and the definitions of crimes presented in the Crimes and Punishments Table, above, consider the following situations.
Determine whether a crime has been committed. If so, which crime?
SITUATION 1 Mary and Barbara get into an argument. Barbara tells Mary she never wants to see her again. The next day, Mary decides to go over to Barbara's house. While she is there, Barbara says, "I told you I never wanted to see you again." However, she doesn't ask Mary to leave. Instead, Barbara calls the police. She claims that Mary is on her property without her permission.
Has Mary committed the crime of trespassing?
SITUATION 2 Bob asks his friend Mike to hold on to some marijuana for him. He'll pick it up later. Mike has never smoked marijuana before and only knows it's marijuana because Bob tells him it is. Mike stuffs the marijuana in his lunch box. Right now he's worried about a math quiz. He forgets about the marijuana. At lunch, in the cafeteria, as Mike empties his lunch box onto the table, the marijuana spills out just as the principal is walking by. He sees it and calls the police. Mike is arrested for possession of marijuana.
Has Mike committed a crime even though the marijuana was not his?
SITUATION 3 Carl offers Doug a brand new 31inch television set for $50. Doug has been wanting a TV for a while but couldn't afford the $700 price tag that this sized set carries. Doug pays $50 and doesn't ask any questions. When Carl suggests that he be discreet and keep the deal quiet, he quickly agrees. This deal is too good to pass up. Two weeks later, a neighbor sees Doug's new TV. He immediately calls the police. The neighbor claims that the oversized set is the one that was stolen from his apartment several weeks before.
Has Doug committed a crime? After all, he paid for the television.
In situation 1, Barbara called the police because Mary came to her house after Barbara told her she never wanted to see her again. At first glance, this situation may look like a criminal trespass. However, a trespass requires notice that entry onto the property is forbidden. In this situation, Mary did not have adequate notice. Telling someone you never want to see them again is not the same as saying, "Don't ever come onto my property again." Therefore, Mary did not commit any criminal offense. What if Barbara had told Mary to leave before she called the police? In that event, Mary would be charged with the misdemeanor offense of criminal trespass.
A person who is told to leave the premises and does not do so is guilty of criminal trespass.
Sometimes we do things for friends without thinking of the consequences. Mike agreed to keep Bob's marijuana for him until later (situation 2). Is he committing a crime if he keeps it? The law forbids possessing marijuana. The Code section defining this crime does not say that possessing marijuana shall be a crime unless you are holding it for someone other than yourself. Therefore Mike could be convicted of misdemeanor possession (if it was less than one ounce). Possession is possession.
In situation 3, Doug found out that the TV he had bought from Carl two weeks earlier was stolen from a neighbor, but Doug didn't steal it. He doesn't even know if in fact it was stolen. All he knows is that he paid $50. Can Doug be charged with theft by receiving stolen property?
Georgia law defines theft by receiving stolen property as follows:
A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.
The key in situation 3 would be whether the state is able to prove that Doug knew or should have known that the TV was stolen. What do you think? Should he have known? The fact that he paid less than 10 percent of the value of the TV would hurt his defense. It would probably be enough to show that he should have known that the TV was stolen. After all, why would someone sell a brand new TV so cheap?
Furthermore, the fact that Carl told Doug to be discreet about the deal is also very strong evidence against Doug. It shows that Doug knew or should have known that something wasn't quite right. Doug's defense attorney will have to work hard on this case. Because the actual value of the TV is more than $500, Doug is facing a felony charge.
Parties to a Crime
SITUATION 4 David is planning to rob his neighbors. He knows that they go out every Saturday night leaving their house unattended. He also knows that there is no burglar alarm. Further, a friend, Bob, has a key to the neighbors' house because he does odd jobs for them. David convinces Bob to give him the key in exchange for a share of the money he gets for the items that he steals. That Saturday night while the neighbors are out, David enters the house. He is caught just as he is carrying out the VCR.
What crime has David committed? What crime has Bob committed? After all, Bob wasn't there, and he didn't take anything. All he did was give the key to David.
Based on the law shown in the Crimes and Punishments Table, Bob is in trouble. He certainly aided in the commission of the crime by giving the key to David, knowing that David was going to use the key to get in and steal items from the house. It doesn't matter that David could have entered the house some other way (perhaps by breaking a window). The fact is that Bob gave David a key that he used to enter the premises and for the purpose of committing a crime.
What crime did David commit?
Looking at Crimes and Punishments Table, you will see a definition of the felony of burglary. People often think that a burglary requires proof that the suspect broke into the home. Actually, a person commits a burglary when he or she enters a dwelling (or building, vehicle, etc.) without authority and with the intent to commit a felony. In situation 4, David entered his neighbors' house with the intent to take their belongings. He intended to commit a felony of theft by taking. Therefore he has committed the offense of burglary.
If David had entered the house with the intent to steal and changed his mind, leaving with nothing, he would still have committed burglary. A burglary does not require that the felony act (in this case, theft) be completed. All that is necessary is that the person entered the premises without authority and intended to commit the felony. The act of burglary was complete as soon as David entered his neighbors' home with the intent to take their belongings.
David may serve time in prison. Burglary carries a penalty of 1 to 20 years; however, the sentence could be probated, meaning that David would serve his time out of jail but on probation. What about Bob? Can he receive the same term even though his role was so minor? Yes. A party to a crime is given no benefit based on the role he or she plays. A judge may take the minor role into consideration when sentencing but is not required to. Therefore Bob could be sentenced to 1 to 20 years, just like David.
The Elements of a Crime
Earlier, the two parts of a crime-an act and criminal intent-were discussed. In addition to these two necessary ingredients, each "act" has specific elements that must be proved by the state beyond a reasonable doubt. (Reasonable doubt is discussed in Criminal Pre-Trial Process.)
To understand these elements, look at the definition of kidnapping in the Crimes and Punishments Table. The law defines kidnapping as "the abduction or stealing away of any person without lawful authority and the holding of that person against his or her will."
There are three elements to this crime:
1. abduction (stealing away),
2. without lawful authority, and
3. holding that person against his or her will.
Each of these elements must be proved for there to be a conviction for the crime of kidnapping. If, for example, the person being accused of the crime had lawful authority to take the victim into custody, then no kidnapping has occurred. One of the elements is missing. Two out of three is never enough. Criminal trials are often won by showing that a necessary element has not been proved.
THE CRIMINAL JUSTICE PROCESS: YOUR RIGHTS
Anyone arrested for a crime becomes subject to the criminal justice process. Generally, the criminal justice process includes all proceedings and virtually everything that happens from the time a person is suspected of committing a crime, through the prosecution, until the case is over. This process includes formal arrest, preliminary hearings, grand jury indictments, arraignment, and trial. If the person is convicted at trial, the criminal justice process may continue through the appeals process. In subsequent chapters, the criminal justice process is examined in a case involving both adults and juveniles. In this section, we will look at some things that people who become a part of the process need to know about their rights.
U.S. citizens have constitutional protections that are very important to the way they live. The government cannot violate their constitutional rights. Citizens of Georgia have protections under the Georgia Constitution as well. These, too, are very important.
The first 10 amendments to the U.S. Constitution are called the Bill of Rights. They often are referred to as the fundamental freedoms.
The Fourteenth Amendment to the Constitution requires the states, in prosecuting a suspected criminal, to abide by these rights in addition to any rights guaranteed by the state constitution. This amendment also guarantees all citizens equal protection of the laws.
Equal protection must be given to all classes of people. For example, two people are charged with the same crime: employee #1 works for the government; employee #2 doesn't. The Fourteenth Amendment guarantees that no preferential treatment be given to employee #1 because he or she works for the government. Likewise, the treatment of people and their sentences cannot be different based strictly on their race or age.
Regarding the criminal justice process, perhaps the most important constitutional right is the right to due process, which is guaranteed by the Fifth Amendment to the U.S. Constitution as well as by article 1, section 1, paragraph 1 of the Georgia Constitution. You will often hear criminal defense lawyers protesting that the due process rights of their client are being ignored or violated. Frequently, persons accused of committing crimes are released because of violations of their constitutional rights, which in many cases is their right to due process.
Due process at its most elementary level includes the right to be heard. In other words, the accused has a right to a trial and a right to put up evidence, a right to crossexamine witnesses against him or her, a right to testify if he or she chooses, and a right to make people come to court by issuing a subpoena, among other things. These are very important rights and are generally classified as due process rights.
The Fifth Amendment is extremely important. Not only does it guarantee all persons due process of the law, it also guarantees that no one will be subject to double jeopardy: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This phrase means that a person who is charged with a crime, pleads "not guilty," goes on trial, and is acquitted of the crime cannot be prosecuted a second time.
The Fifth Amendment further protects a person from being forced to give testimony against him or herself ("nor shall [any person] be compelled in any criminal case to be a witness against himself"). This protection is what is claimed when a suspect "takes the Fifth." A suspect never has to talk about a crime if that testimony, statement, or confession will expose the suspect to criminal prosecution.
In addition to these amendments, there are others that are important, particularly in the criminal justice context. The Fourth Amendment deals with arrest and search and seizure (or the authority of the police to stop someone suspected of a crime and to search that person or his or her car). The Sixth Amendment includes the rights to a speedy and public trial, trial by jury, and the effective assistance of counsel (a lawyer).
The Eighth Amendment addresses excessive bail. What is excessive? Would $100,000 bail be excessive in a misdemeanor case of marijuana possession? Absolutely. But what about in a murder case? The Eighth Amendment also prohibits inflicting cruel and unusual punishment. As a result of these protections, a person cannot be sentenced too harshly. Once in jail, he or she cannot be beaten or deprived of medical attention.
Over the years, many acts have been termed crimes by governments. Some acts-like murder-seem very clearly to be crimes. Some, like slapping someone, may not seem like a crime but are considered to be crimes in Georgia. Some acts become crimes even though the offender didn't intend those consequences of his or her actions. Also, an act that is a crime in one state may not be a crime in a neighboring state. The state of Georgia lists and defines in the Official Code of Georgia Annotated what it considers to be crimes. Other states define crimes in their state codes.
The writers of the U.S. Constitution were very concerned about the rights of the individual. The Bill of Rights contains several amendments that deal specifically with the treatment of people accused of crimes. To understand the importance of the rights that the Constitution guarantees, imagine yourself accused of a crime that you didn't commit.
* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.