What is the distinction between criminal law and civil law? A criminal statute is a law prohibiting—in some rare cases—forcing a particular type of conduct. There are many different types of statutes governing criminal conduct, far more extensive than the popular notion that criminal statutes only prohibit killing, raping or stealing. In order to be a criminal, you must be found guilty of violating one of the criminal statutes. Webster defines criminal as:
“…relating to, involving or being a crime; relating to crime or to the prosecution of suspects in a crime; guilty of crime; or disgraceful; also, one who has committed a crime; or a person who has been convicted of a crime.”
The definition of crime according to Webster is “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; a grave offense against morality; criminal activity; something reprehensible, foolish or disgraceful.”
That definition is interesting: It does not distinguish between the person who has committed a crime and the person who has been convicted of a crime. Under the law in this country, the fact that you have committed a crime does not make you a criminal. You only become a criminal after you have been convicted of a crime. Almost everybody who watches television understands that you are innocent until proven guilty. This concept is derived from the constitutional requirement that any American is presumed to be innocent until proven guilty. “Proven guilty” means that a judge or jury has listened to the facts and has found the suspect guilty; or an individual has pled guilty and as a result of that admission, has been found guilty by the judge.
That is the law in the United States: you are not a criminal until you are convicted of a crime. Some people believe that if you have committed a criminal offense you are a criminal. A lawyer or any informed citizen who is familiar with the Constitution should say that a person is not guilty unless that person has been convicted.
There are many different levels of government, and each jurisdiction generally creates laws, ordinances or statutes-a violation of which is called a crime. Counties have laws and state governments have laws. Cities or municipal governments generally have lots of traffic laws which are criminal offenses usually punishable by fines ranging from as little as $1 to as high as $1,000.
Murder is a violation of the law in all 50 states. It is defined differently in all 50 states, but basically it is the intentional taking of a human life without legal permission. There are various terms for lesser degrees of offenses which result in human death depending on the state in which you are located. Negligent homicide is a type of killing that is rated as less vicious than murder-killing someone by mistake through negligence. Driving while intoxicated is a frequent factor in this offense. A drunk driver runs into someone and kills him. It’s a mistake that could have been avoided. It was careless but unintentional. Capital murder (a murder for which the death penalty may be levied) is generally the most serious crime that can be committed.
Felony or Misdemeanor
Crimes are generally broken down into two categories: felonies, which are serious crimes; and misdemeanors, which are less serious offenses. A felony in one state may be a misdemeanor in another state. The state of Texas has class A, B, and C misdemeanors; and first, second, and third degree felonies.
The penalties are as follows:
Misdemeanors
- Class C Misdemeanor up to a $200 fine and no jail time
- Class B Misdemeanor up to a $1,000 fine and 6 months of jail time
- Class A Misdemeanor up to a $2,000 fine and 1 year of jail time
Felonies
- 3rd Degree Felony up to a $5,000 fine and 10 years of jail time
- 2nd Degree Felony up to a $10,000 fine and at least 2 years of jail time (maximum sentence of 20 years)
- 1st Degree Felony – at least 5 years of jail time (maximum sentence of 99 years)
Of course, a defendant could get probation and not even go to jail, even if he was convicted and sentenced to do jail time. A sentence on a class B misdemeanor of six months usually means a maximum of two or three months of real time in jail. A sentence of 99 years, probated for five years, means that you don’t have to go to jail as long as you obey the conditions of your probation-which could include such terms as being employed, paying restitution, being drug-free, and avoiding the friendship of certain companions. Also, if you are placed on probation, you probably will have to report to a probation officer occasionally – but you don’t have to go to jail.
If you are convicted of violating a criminal statute, lose all of your appeals, and your conviction becomes final, you officially become a criminal. Convictions from district court may be appealed in the various courts of appeal. The Texas Court of Criminal Appeals is the court of last resort for criminal matters in Texas.
The practice of criminal law basically consists of prosecuting or defending persons accused of violating criminal statutes. The style (name) of the case might be: The City of New York vs. John Doe, the County of Harris vs. Sally Smith, the State of Alaska vs. Bill Black or, if it is a federal crime, the United States of America vs. Benedict Arnold.
Federal crimes are also classified as felonies or misdemeanors. Some types of murder can end up being a federal crime because you could also be accused of violating the dead person’s civil rights—which is a federal crime—by murdering that person. You have also committed the state crime of murder. Although the double jeopardy clause of the Constitution was put in there to prevent you from being tried twice for the same crime, the U.S. Supreme Court has ruled that you can be tried for the crime in a federal court and a state court because the two jurisdictions are separate.
Many people fail to understand the legal niceties of the double jeopardy clause as interpreted by today’s Supreme Court. This situation did not arise during the lifetimes of the framers of the Constitution, because the categories of federal crime and state crime did not overlap. It is very unusual to be tried in both federal court and state court for a crime arising out of the same act because everyone really knows it’s not fair. When it happens, assume there are political motivating forces in play.
In a criminal case, the government is the plaintiff proceeding against an individual. Two individuals are never opponents in a criminal action. If Sally Smith is beaten by John Doe, she does not become the plaintiff in a criminal suit seeking to put John Doe in jail. She must convince the government prosecutor to file a criminal complaint against Doe based on her testimony. If the charges are filed, the style of the case would be, for example, the State of Texas vs. John Doe. The state would be the plaintiff; Doe would be the defendant; and Sally Smith would undoubtedly be a very important witness.
In criminal law, the government sues an individual for the purpose of taking away his money or his freedom. If the government wins and a fine is assessed, the government collects the money, provided the fine is paid—lots of criminals don’t pay their fines. However, if payment is a condition of probation, it’s easier for the government to get its money since the defendant has the choice of paying the fine or going to jail.
When a defendant is sentenced to do jail time, the government gets to keep him instead of his money. When a person is sentenced to serve five years in jail, that time has little meaning compared to the time the person will actually spend in jail when we consider how extensively the sentence is usually reduced by credits given for good behavior and other inducements for the convicted person to behave while in jail. For most crimes—not including tax cases—a criminal usually serves about one-third of the time he is sentenced to serve (persons convicted of tax crimes are rarely released early). However, this general rule also varies from one jurisdiction to another.
A criminal defendant may be charged in two different ways. The first way—generally reserved for less serious crimes—is by way of an information or a ticket. An information is simply a statement by a government prosecutor, usually based on a sworn complaint filed by a citizen, charging a person with violating a criminal statute. An information can also be based on a sworn statement by a law enforcement officer or government agent that he has witnessed or has conducted an investigation and determined that a criminal violation took place.
The other way a person is charged with a crime is with an indictment returned by a grand jury. A grand jury indictment means that a group of citizens has determined that they have heard sufficient evidence to accuse someone of having committed a crime. In a criminal trial, evidence must be established by a standard of proof called “beyond a reasonable doubt.” But all a grand jury must do is hear evidence, usually only from the government’s side, and determine if the jurors believe the accused person committed a crime.
Being charged with a crime can be a time of tremendous stress and emotional upheaval. However, it is very important to remain clear-headed and avoid communicating with the police or government agents. It is extremely difficult, if not impossible, to talk your way out of an arrest or criminal charge. IRS agents especially will often ask targeted individuals for “their side of the story” in order to obtain self-incriminating statements. The IRS is rarely interested in a target’s “side of the story” except for how it can be used to support the government’s already established conclusions. As a general rule, telling your “side of the story” to an IRS investigator has a very real likelihood of creating an extremely damaging piece of evidence against you in a criminal tax case. At Minns Law firm, we advise our clients to never speak with government agents about a criminal investigation without our approval and never without our presence for the conversation. If you are ever the target of an IRS criminal investigation, you should immediately seek assistance from an experienced tax attorney.
My next blog will discuss civil cases.
Michael Louis Minns is a Houston-based attorney who handles complex tax matters and professional malpractice cases, with a concentration in criminal tax defense. He is the author of two popular books on his trial work, The Underground Lawyer and How to Survive the IRS. If you have questions about a complex tax matter or a professional malpractice case please contact Minns & Arnett for a consultation.