If you’ve been harmed, or accused of causing harm, you may be asking yourself, was this a crime?  The short answer is that conduct is criminal if it is explicitly prohibited by a state or federal law. In some cases, the answer will be obvious (for example, getting mugged at gunpoint). In other cases, especially those involving sexual misconduct, the answer may be less obvious.  That is because whether conduct is considered criminal requires a fact-specific analysis.  What was the conduct?  What harm did it cause?  What was the actor’s intention? The answers to these questions are not always objective, and that is why there is an element of discretion in the way that the criminal law is interpreted and applied.      

If you are in imminent danger, you should call 911 immediately.    

If you are not in imminent danger, what factors into the decision about whether to make a report is different for everyone.

Your Role As Victim.

Once you have filed a report, it will be up to law enforcement to decide how to move forward. As the victim, you will almost certainly be asked to participate in the investigation and criminal prosecution by providing testimony and other evidence. This may feel empowering or emotionally taxing or both.

Preserving Evidence.

While you are weighing your options, it is important that you maintain and preserve any evidence you may have to support that report.  What constitutes evidence will vary on a case by case basis but may include: any physical evidence you have of the crime that was committed, documentary evidence such as text messages, emails, or voicemail recordings, and testimonial evidence such as your account of what occurred and the account(s) of any potential witnesses. Evidence will be gathered by law enforcement during the investigative stage and then will be used by the prosecutor to make their case in court.

Medical Examinations.

If you have been harmed by another person, you may be considering submitting for a medical examination to document your injuries. A medical examination could include the collection of evidence from your body, documentation of your condition, and the provision of treatment and future care. At any point during the exam you will be free to refuse any part of the exam. In many cases, it is important to be examined as close in time to the injury as possible. It may be the case that you choose to undergo a medical examination before you have decided to move forward with making a report. In New York State, the Sexual Assault Victim Bill of Rights protects the right of victims to choose whether or not to make a report to police, even when a rape kit has been collected. The Bill of Rights also ensures the right to request a rape kit at no cost and the chance to meet with a rape crisis advocate at the hospital.  

No, anyone can call 911 or walk into a police precinct and report a crime at any time. You do not need legal representation to report harm you have experienced to the police.  However, you may want legal representation to guide you through the decision-making process about whether to report and to advocate for you throughout the criminal prosecution that may follow.  If a criminal case is filed against the person who harmed you, it is important to understand that the prosecutor does not represent you as an individual, but rather the people of the community in which the harm occurred.  As a result, once you report a crime to the police, what comes of that report is no longer in your control.  That potential loss of agency can be daunting for crime victims, especially when the report is based on a painful and personal experience.  Having an attorney who can act as an intermediary between you and the police or prosecutor's office and guide you through the process can help to manage expectations and anxieties. 

A subpoena is a legal document that directs an individual or organization to appear in court or to produce certain documents or evidence. Complying with a subpoena is not optional.

If you are served with a subpoena in a criminal matter, it likely means that the government believes you have information that is relevant to their case. It does not necessarily mean that you have criminal exposure, but it might.

Criminal conduct can generally be divided into two categories of prosecutable offenses: misdemeanors (less serious criminal offenses, punishable by up to one year in jail) and felonies (more serious criminal offenses, punishable by more than a year in prison).  

Depending on the state where the crime occurred, the classification and penalty for different misdemeanors and felonies can vary. For instance, in New York, misdemeanors are classified as either “A” or “B” misdemeanors. Class A misdemeanors are more serious and therefore carry a heavier potential penalty of up to a year in jail.  Class B misdemeanors carry a maximum penalty of up to three months in jail. Misdemeanors will show up on a criminal record.  

In New York, felonies are divided into five categories, A-E, with A being the most serious. A felony charge can result in a maximum sentence of life in prison, whereas, E felony charges carry a maximum sentence of four years in prison.  Felony charges may further be classified as “violent” and “non-violent” - and, in New York, violent felonies carry a fixed sentence where non-violent felonies may carry a range of sentences.  

There are also non-criminal offenses that may be handled in state criminal courts, like traffic infractions and violations such as disorderly conduct.  Though these kinds of offenses can lead to fines or jail time, they do not lead to a criminal record. 

Crimes that violate state law will be prosecuted in state court; crimes that violate federal law will be prosecuted in federal court. Criminal conduct that is commonly prosecuted in state court includes conduct that occurs wholly within one state, such as rape, homicide, robbery and simple fraud. Federal crimes require a federal nexus, which can include crimes that impact interstate commerce (for example, human trafficking, sex trafficking and distributing child pornography) and crimes that affect federal property (for example, theft of federal funds) or federal employees (for example, bribing a federal official).  Sometimes the same conduct will be prohibited under both state and federal law, and a decision has to be made by the authorities about which government agency will handle the investigation and prosecution.   

The agency that investigates your report depends on where you make it. This is a big factor in determining where you want to make your report.  You want to know if your case might be investigated by the state or the federal prosecutor's office, and what that might mean for you.

Charges are filed.

To begin a criminal prosecution, the government has to formally charge a person with a crime. A person is charged with a crime when the government files a piece of paper with the court that formally lays out the crimes the person is alleged to have committed.  In New York, the charges can be set out in a complaint or an indictment.  

In New York, all felony cases must be presented to a Grand Jury (the same is true under federal law). The grand jury is intended as a check on the government's power by ensuring that there is sufficient evidence before a person can be charged with a serious crime. The grand jury is made up of everyday citizens who are tasked with hearing evidence presented by a prosecutor and voting on whether there is probable cause (referred to as “reasonable cause” in New York) to believe that a person committed a crime.

Arraignment.

Once the charging document (whether a complaint or indictment) is filed with the court, the person accused of the crime (called the “defendant”) will be arrested and brought before a judge to be arraigned. Under our criminal system, a person accused of a crime is presumed innocent and remains innocent in the eyes of the law unless and until they are proven guilty. 

At the arraignment, the defendant will be informed of the charges and given the opportunity to plead guilty or not guilty to those charges.  The court will decide whether the defendant will remain in custody, or whether bail conditions can be set to ensure their return to court if they are released while awaiting trial. Every person accused of a crime is entitled to legal counsel regardless of their ability to pay. Free counsel is available to those without sufficient resources; those who can afford one must hire counsel.

Pre-Trial Procedure.

After the arraignment, the case will proceed toward trial.  During the pre-trial phase, the prosecutor and the defense will exchange information and evidence related to the criminal case.  Defense counsel and the prosecutor may also engage in plea discussions to determine if they agree on a reduced charge and sentence that the defendant could plead guilty to in order to resolve the case without a trial.

Trial.

If plea negotiations fail, there will be a trial at which a trier-of-fact (either a judge or a jury) will be asked to determine whether the government has proven the defendant’s guilt beyond a reasonable doubt. During the trial, the prosecutor will present evidence, which may involve the testimony of witnesses and experts as well as the introduction of physical exhibits like photographs, surveillance video and phone records.  The defense attorney will have the ability to cross-examine any witnesses put forward by the prosecution, and to present witnesses and evidence of their own.  The defendant is not required to testify.  

Once each side has rested and closing arguments have been made, the judge will give the jury a series of legal instructions that should guide their deliberation.  The jury will then privately deliberate and come to a verdict - guilty or not guilty. In the event that the jury cannot come to a unanimous decision, the judge may declare a mistrial.

Sentencing.

If an accused is convicted - either by plea or by trial - it will be up to the judge to determine the appropriate sentence within the options available under the law.  Potential sentences include imprisonment, probation and the imposition of fines. 

Yes.  There are laws that govern how long after an event the government may charge a person with a crime for that conduct.  These laws are called statutes of limitations. It is important to be aware of the statute of limitations that apply to the criminal conduct you are reporting. If too much time has elapsed since the conduct occurred, it may not be possible for the prosecutor to bring the case to court. The exact amount of time you will have to make a report may vary widely depending on the conduct you are reporting.