Author:John E. Nowak

Page 1031

The most common classification of crimes is between MIS-DEMEANORS and felonies. The Constitution does not control the definitions of felony and misdemeanor; the distinction usually is made by a state statute, or, in a few instances, by state constitution. Federal statutes define the scope of federal felonies and misdemeanors.

A state statute commonly will define a felony as a crime for which a person may be imprisoned in a state penitentiary (rather than a local jail) or as an offense for which a person may be imprisoned for a minimum length of time (such as six months or one year). The distinction between a felony and a misdemeanor may determine whether a police officer had statutory authority to arrest a person without a warrant, which state court has jurisdiction over a criminal charge, or whether the defendant will be subject to punishment under a habitual criminal statute which provides for increased punishment after conviction for several felonies.

Although the distinction between felonies and misdemeanors is an important one under state law, it is not significant for constitutional law purposes. There are three constitutional provisions, applicable to the prosecution of criminal cases, whose meaning or impact is dependent in part upon the seriousness of the crime charged, not upon the felony-misdemeanor distinction. These provisions are the Fifth Amendment GRAND JURY clause, the Sixth Amendment RIGHT TO COUNSEL, and the Sixth Amendment right to TRIAL BY JURY.

The Supreme Court has held that the FOURTEENTH AMENDMENT does not incorporate the Fifth Amendment's grand jury clause; that clause, therefore, is not applicable to state or local criminal prosecutions. In Ex parte Wilson (1885) the Supreme Court defined the federal crimes to which the grand jury clause applied as those "punishable by imprisonment at hard labor" in a federal penitentiary. Federal statutes and the FEDERAL RULES OF CRIMINAL PROCEDURE define a federal felony as any federal offense punishable by imprisonment for a term exceeding one year. A federal felony prosecution must be initiated by a grand jury indictment. Someone charged with a federal misdemeanor may be prosecuted based on either an INFORMATION filed by the federal prosecutor or a grand jury indictment.

The Sixth Amendment guarantee of a right to counsel in all criminal prosecutions applies to the states through the Fourteenth Amendment. The Supreme Court has held that the Sixth...

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