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Criminal Legal System Basics (US)
5WAVES are not attorneys and this is not legal advice.
Please visit the Find a Lawyer page for assistance.
Most people who make a police report, give a forensic interview, or are investigated by police for causing sibling sexual trauma have not had previous contact with the criminal legal system. Suddenly facing this system can be terrifying and overwhelming. Reality is different than TV, movies, or many common beliefs.
Who Does What
in the Criminal Legal System
Law Enforcement (aka Police, Sheriff, FBI)
Their job is:
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To investigate reports of illegal sexual behavior
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To collect evidence that would be admissible in court
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To determine if an individual poses an immediate risk to public safety, and make arrests if necessary
Their job is not:
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To determine the whole truth of what happened
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To decide whether or not a person is charged
Prosecution (aka District Attorney, DA, States’ Attorney, Tribal Attorney, US Attorney)
Note: Small departments may have just one “DA.” In bigger cities, the elected DA supervises an office of line prosecutors, or assistant DA’s, who are assigned to individual cases. To add to the confusion, these assistants are sometimes referred to by the short cut “the DA”.
Their job is:
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To determine if there is sufficient evidence to charge a person with a crime, based on the law and on evidence collected by law enforcement
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To decide which criminal charges to bring, if any. The final say on whether or not to press charges lies with the prosecutor, not the victim.
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To represent the government in court when a person is accused of violating a criminal law
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To be steward of the evidence collected by law enforcement, sharing it with the defense as required by law and handling it in a way that it will be admissible in court if needed
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To protect the victim and handle the case in a way that upholds the victim’s legal rights. There is often a staff member or office of victim services who provides support, guidance, and referrals for those who are victims of a reported crime, even if no one is convicted.
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To work with witnesses, including victims, whose testimony could become evidence in court
Their job is not:
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To represent the victim or the victim’s wishes directly. In modern Western criminal court, the crime is considered to be against the State, not the victim. This gives the State the authority to sentence those who are guilty. But it also means that no one is directly representing the victim in criminal court.
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Defense Attorney (either public defender or private lawyer)
Their job is:
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To represent (appear or speak on behalf of) a person accused of a criminal offense
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To make sure the defendant understands their legal rights and can exercise them
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To represent the defendant’s interest through the entire court process
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To gain the best possible legal outcome for the person they represent
Their job is not:
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To decide whether the person “deserves” to be defended
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To be the defendant’s personal therapist or family therapist
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They do not, and cannot, report information their client has shared with them that could incriminate the defendant
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That said, they cannot knowingly lie in court
Judge (aka the Bench, the Court)
Their job is:
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To be an impartial “referee” between the prosecution and the defense
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To make sure all court business is handled according to the law
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To make decisions on how the law is applied to each case; for example, whether to charge a teenager as a juvenile or an adult, amount of bail, conditions of bail, requests for delays, what evidence is admissible in court
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In many places, if a person is convicted or pleads guilty, the judge decides the sentence within a range given by the law
Their job is not:
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To decide the outcome of the case
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To take the side of the victim
Juvenile Court System
​​When a child or teen faces criminal charges for violating a sibling, the case is often handled by the juvenile court system (see this flowchart; varies by state). The specifics of what happened, at what age, when it was made known, and the laws of the state where it happened all factor into whether the case is handled by adult or juvenile court. This decision is made early in the process and will influence not only the legal process but the trajectory of the child’s life. It is almost always better for the child to have their case handled in juvenile court. For information specific to your situation, contact a local defense lawyer with expertise in this area.
The Juvenile Justice System operates under the assumption that children’s and teens’ brains are still developing. There is reason to hope they will respond well to treatment. As their brains mature they tend to develop more empathy and better self-control. Because of these factors, juveniles are less likely than adults to be a risk to society for the rest of their lives. Despite the faults of the juvenile system, it is almost always a better option than the adult system.
Juvenile System
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Records are private and sealed
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Focused on treatment--usually provides and requires treatment
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Greater chance to allow family reunification
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Housed in youth-focused detention or treatment center that includes access to K-12 education
Adult System
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Court records are public, often searchable online indefinitely; this includes charges that are dropped or do not lead to a conviction
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Focused on punishment and protection of the public
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More barriers to family reunification
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Housed in adult jails and prisons
If a teen is sentenced to residential treatment, it will usually be in a regional facility for adolescents who have acted out sexually. This could require travel, limited contact and visitation time with parents, and parents may be required to pay for the treatment if the court decides they are able. Other teens are sentenced to outpatient treatment, especially if the family is able to provide a place for them to live that assures the safety of all children involved.
Sometimes juvenile cases are handled by the Department of Human Services instead of going through juvenile criminal court. This is particularly true if a young child caused the harm.
Additional Resources: Adult System
The Criminal Justice System Explained San Diego District Attorney’s office--exact process varies by state
The Justice System Explained infographic of the federal criminal system, from the US Department of Justice Bureau of Justice Statistics
What to Expect from the Criminal Justice System from the Rape, Abuse, Incest National Network
The Investigators | Laurens Kids description of multiagency investigation of child sexual abuse in Florida, most US states are similar
Additional Resources: Juvenile System
California law firm Wallin & Klarich: Q&A on Juveniles accused of child-on-child sexual abuse (specifics apply to California only and may not be up to date; consult a local attorney for advice on your own situation)
DefendYoungMinds: Solid Advice from a Utah Juvenile Court Judge for children with harmful sexual behavior
Defend Young Minds: Parents Guide to Navigating Legal and Reporting Requirements after harmful sexual behavior
American Bar Association/National Child Traumatic Stress Network: Trauma-Informed Legal Advocacy a resource for juvenile defense attorneys, with information helpful to parents and other professionals
Juveniles Who Commit Sex Offenses Against Minors is a summary from the US Department of Justice, based on a snapshot of 2004 data.