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This is a canonical question posed for the purpose of clarifying the rules of criminal procedure in the United States relevant to who is authorized by law to determine if alleged conduct is "illegal".

In an climate of local and national political scandal and intrigue being reported in popular media questions might arise by persons who follow politics asking if general or specific conduct by individuals is "illegal", according to the language or notion of the spirit of particular laws; for example, see Was attending the meeting by Trump Jr., Kushner or Manafort, an “act to effect the object of the conspiracy” within the meaning of 18 U.S.C. 371?; Is paying for ex-staff's silence a legal use of campaign funds? (see also What is the reason for deleting this users' answer at “Is paying for ex-staff's silence a legal use of campaign funds?”).

It is important to at least attempt to reign in wild speculation as to whether an individuals' conduct is "illegal" by reiterating the facts of constitutional rights and criminal procedure within the United States.


In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"?

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    The problem with the question is that it is never required that you "determine if conduct is illegal". For a crime, you might determine whether the act satisfies a particular description of that crime. Is that what you mean by "illegal"? – user6726 Aug 19 '18 at 16:01
  • @user6726 The term "illegal" is not clearly defined at the linked questions nor is there are objective standard presented to follow for determining whether an act or omission is "illegal". The question and the current only answer illustrate several of the issues with any individual or group asserting that an event or facts relating to an event is conclusively "illegal"; whether charges accusing "illegal" conduct are filed by the state or not. Was the killing of Michael Brown, Philando Castile, Tamir Rice "illegal"? If yes, why are none of the killers in prison for their "illegal" conduct? – guest271314 Aug 19 '18 at 17:51
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    So you should narrow the question to "Was the killing of Michael Brown illegal?". The titular question is kind of meaningless. But the narrow question requires stipulation of many facts, otherwise you will just get opinions as to whether the law was actually violated despite the grand jury finding. – user6726 Aug 19 '18 at 18:04
  • @user6726 Further, what is the stamping of conduct by individuals' who do not have the authority to file charges or convene a grand jury as "illegal" achieve? Of the 11 cases of police killings of black men and children at Police killings of black men in the U.S. and what happened to the officers 2 were sentenced to prison, the state did not file charges in 4 of the cases, juries acquitted, found not guilty or declined to indict in 4 cases. You can post an answer. – guest271314 Aug 19 '18 at 18:05
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    "This is a canonical question posed for the purpose of clarifying the rules of criminal procedure in the United States relevant to who is authorized by law to determine if alleged conduct is "illegal"." Lots of things that are illegal, like breaching a contract, not paying your rent on time, overstaying your tourist visa, causing someone to slip and fall because you don't shovel your sidewalk, falsely impinging your ex-'s reputation, retaining money misdeposited in your bank account, etc. are illegal even though they are not crimes, and this is not adjudicated in a criminal justice system. – ohwilleke Aug 21 '18 at 2:13
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In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"?

You are conflating several different ideas here, which is probably the source of your persistent confusion.

1) Actions are legal or not

Illegal: Not authorized by law; Illicit ; unlawful; contrary to law

The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not.

Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both.

2) A person may or may not be guilty of an illegal action

Guilty: Having committed a crime or tort

Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty.

3) An individual may or may not be guilty of the crime of which they are charged.

Charge: the statement of the alleged offense that brings a person to court

If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you.

To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless.

4) A defendant may or may be found guilty and convicted.

Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury.

This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it.

Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time.

On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is.


TL;DR

  1. Whether something is legal is determined by the legislature when they pass laws.
  2. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws.
  3. People are charged with violations of specific laws by law enforcement.
  4. Defendants can be found guilty by the court system.

In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless.

  • "Someone who commits an illegal act is guilty of doing so, even if they are never charged." is contradictory on its face and makes absolutely no sense. – guest271314 Aug 21 '18 at 0:41
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    @guest271314 Boson is spot on correct. Factual guilt and legally determined guilt are not the same thing. – ohwilleke Aug 21 '18 at 1:10
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    @guest271314 - Please see the definition of "guilty" that I quoted above. There's a difference between being guilty and being found or proven [to be] guilty. And yes - an officer who shoots an innocent person in the line of duty did commit an illegal action (#2), and often does end up at trial (#3), but if they can prove that they had reasonable suspicion that the person was actually a threat, they are found to not be guilty of murder or wrongful death (#4). I don't know what you're getting at with your other two examples, though. – Bobson Aug 21 '18 at 1:19
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    @guest271314 - For example, when the individual is alone and has not accused themselves of any "illegal" conduct? In that instance it would be impossible for the conduct to be considered "illegal", correct? Explicitly wrong. The conduct is illegal regardless of whether the person thinks it is - that's called "unknowingly breaking the law". They may or may not ever get in trouble for it, but it's still illegal. – Bobson Aug 21 '18 at 11:36
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    @guest271314 - I really think you're using these words is ways that no one else does. I don't know if that's because you just aren't understanding what I'm trying to communicate, or whether you're deliberately disagreeing regardless, but I can tell at this point that I'm not going to be able to change your usage of these words. Feel free to keep believing whatever you want, but don't be surprised when any question you post which misuses legal terminology gets downvoted. If you genuinely don't understand, I don't know how to help you, and suggest you stay away from legal questions. – Bobson Aug 21 '18 at 11:45
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Persons accused of a crime in the United States are presumed to be innocent.

Presumption of innocence

The presumption of innocence is the principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).

Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. The case of Coffin v. United States (1895) established the presumption of innocence of persons accused of crimes. See also In re Winship.

Coffin, et al. v. United States, 156 U.S. 432 (15 S.Ct. 394, 39 L.Ed. 481)

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

It is stated as unquestioned in the textbooks, and has been referred to as a matter of course in the decisions of this court and in the courts of the several states. See 1 Tayl. Ev. c. 5, §§ 126, 127; Wills, Circ. Ev. c. 5, § 91; Best. Pres. pt. 2, c. 1, §§ 63, 64; Id. c. 3, §§ 31-58; Greenl. Ev. pt. 5, § 29, etc.; 11 Cr. Law Mag. 3; Whart. Ev. § 1244; 2 Phil. Ev. (Cowen & Hill's Notes) p. 289; Lilienthal's Tobacco v. U. S., 97 U. S. 237; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v. Bartlett, 43 N. H. 224; Alexander v. People, 96 Ill. 96; People v. Fairchild, 48 Mich. 31, 11 N. W. 773; People v. Millard, 53 Mich. 63, 18 N. W. 562; Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v. State, 44 Ala. 15.

Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius Do Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. On Evidence, pt. 5, § 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

'Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.' Code, L. 4, tit. 20, 1, l. 25.

'The noble (divus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent.' Dig. L. 48, tit. 19, l. 5.

'In all case of doubt the most merciful construction of facts should be preferred.' Dig. L. 50, tit. 17, l. 56.

'In criminal cases the milder construction shall always be preserved.' Dig. L. 50, tit. 17, 1, 155, § 2.

'In cases of doubt it is no less just than it is safe to adopt the milder construction.' Dig. L. 50, tit. 17, l. 192, § 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, 'a passionate man,' seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, 'Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?' to which Julian replied, 'If it suffices to accuse, what will become of the innocent?' Rerum Gestarum, lib. 18, c. 1. The rule thus found in the Roman law was, along with many other fundamental and human maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. 2, T. 23, c. 14, A. D. 1198; Corpus Juris Canonici Hispani et Indici, R. P. Murillo Velarde, Tom. 1, L. 2, n. 140. Exactly when this presumption was, in precise words, stated to be a part of the common law, is involved in doubt. The writer of an able article in the North American Review (January, 1851), tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common-law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says: 'Who, then, in England, can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life. None but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape punishment of death than that one innocent person should be condemned and suffer capitally.' De Laudibus Legum Angliae (Amos' translation, Cambridge, 1825).

Lord Hale (1678) says: 'In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him; but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.' 2 Hale, P. C. 290. He further observes: 'And thus the reasons stand on both sides; and, though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger,—'Quod dubitas, ne feceris." 1 Hale, P. C. 24.

Blackstone (1753-1765) maintains that 'the law holds that it is better that ten guilty persons escape than that one innocent suffer.' 2 Bl. Comm. c. 27, marg. p. 358, ad finem.

How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's Case (1817) 33 State Tr. 275, 506, where Lord Gillies says: 'It is impossible to look at it a treasonable oath which it was alleged that McKinley had taken without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be redargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly. He seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason and religion and humanity for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman, and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only of absolute certainty.'

In re Winship, 397 U.S. 358 (1970)

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The

demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.

C. McCormick, Evidence § 321, pp. 681-682 (1954); see also J. Wigmore, Evidence § 2497 (3d ed.1940). Although virtually unanimous adherence to the reasonable doubt standard in common law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does "reflect a profound judgment about the [p362] way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145, 155 (1968).

Persons charged with a crime have the right to a speedy and public trial.

Sixth Amendment to the United States Constitution (in pertinent part)

Public trial

In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court ruled that the right to a public trial is not absolute. In cases where excess publicity would serve to undermine the defendant's right to due process, limitations can be put on public access to the proceedings. According to Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), trials can be closed at the behest of the government if there is "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." The accused may also request a closure of the trial; though, it must be demonstrated that "first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's right to a fair trial."

Impartial jury

The right to a jury has always depended on the nature of the offense with which the defendant is charged. Petty offenses—those punishable by imprisonment for no more than six months—are not covered by the jury requirement, District of Columbia v. Clawans, 300 U.S. 617 (1937); Baldwin v. New York, 399 U.S. 66 (1970).

Notice of accusation

A criminal defendant has the right to be informed of the nature and cause of the accusation against him. Therefore, an indictment must allege all the ingredients of the crime to such a degree of precision that it would allow the accused to assert double jeopardy if the same charges are brought up in subsequent prosecution, United States v. Cruikshank, 92 U.S. 542 (1876). The Supreme Court held in United States v. Carll, 105 U.S. 611 (1881), that "in an indictment... it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." Vague wording, even if taken directly from a statute, does not suffice. However, the government is not required to hand over written copies of the indictment free of charge, United States v. Van Duzee, 140 U.S. 169 (1891).

Confrontation

The Confrontation Clause relates to the common law rule preventing the admission of hearsay, that is to say, testimony by one witness as to the statements and observations of another person to prove that the statement or observation was accurate.

...

The right to confront and cross-examine witnesses also applies to physical evidence; the prosecution must present physical evidence to the jury, providing the defense ample opportunity to cross-examine its validity and meaning. Prosecution generally may not refer to evidence without first presenting it.

Compulsory process

The Compulsory Process Clause gives any criminal defendant the right to call witnesses in his favor. If any such witness refuses to testify, that witness may be compelled to do so by the court at the request of the defendant.

Fourteenth Amendment to the United States Constitution (in pertinent part)

Due Process Clause

In the 1884 case of Hurtado v. California, 110 U.S. 516 (1884), the U.S. Supreme Court said:

Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

The Due Process Clause of the Fourteenth Amendment applies only against the states, but it is otherwise textually identical to the Due Process Clause of the Fifth Amendment, which applies against the federal government; both clauses have been interpreted to encompass identical doctrines of procedural due process and substantive due process (Curry, James A.; Riley, Richard B.; Battiston, Richard M. (2003). "6". Constitutional Government: The American Experience).

Bench Trial

In U.S. law, for most criminal cases, trial by jury is usually a matter of course as it is a constitutional right under the Sixth Amendment and cannot be waived without certain requirements. Under section 21 of the rules of Federal Criminal Procedure, if a defendant is entitled to a jury trial, the trial must be by jury unless (1) the defendant waives a jury trial in writing, (2) the government consents, and (3) the court approves.

Appellate court

In the United States, both state and federal appellate courts are usually restricted to examining whether the lower court made the correct legal determinations, rather than hearing direct evidence and determining what the facts of the case were, Court Role and Structure. Furthermore, U.S. appellate courts are usually restricted to hearing appeals based on matters that were originally brought up before the trial court. Hence, such an appellate court will not consider an appellant's argument if it is based on a theory that is raised for the first time in the appeal, How Courts Work.


The most important point being the presumption of innocence.

The answer to the question of whether conduct is "illegal" MUST be "No" if there is no case, no controversy exists, or the legal question is not ripe; where no trial and conviction by a jury or bench trial or appellate court has decided whether the conduct is "illegal".

No conduct can be considered "illegal" simply by reading a statute or regulation and casting an opinion on the matter. The setting for such a determination is a court of law.

Thus, whether conduct is "illegal" or not is determined by a

  • Jury (impartial)
  • Judge (trial and appellate courts)

not by any single lawyer or public opinion.

An individual accused of a public offense is innocent until proven guilty beyond a shadow of a "reasonable" doubt in a court of competent jurisdiction.

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    By your logic, the killing of Nicole Brown Simpson was not illegal because nobody has been convicted for killing her. That suggests that your logic is flawed. Furthermore, the standard in criminal trials is "beyond a reasonable doubt," not "beyond a shadow of a doubt." – phoog Aug 19 '18 at 2:47
  • @phoog The killing of Travon Martin was not "illegal" either. Nor was the killing of Stephon Clark "illegal" What We Learned From the Videos of Stephon Clark Being Killed by Police; If Schubert is so tough, why aren’t cops ever charged in cases like Stephon Clark’s?. Those are facts of the public safety agency conduct, "legal" and criminal justice system in the United States, which could be argued is flawed, a criminal enterprise itself, or both – guest271314 Aug 19 '18 at 6:51
  • @phoog You can certainly post your own answer to the original question. – guest271314 Aug 19 '18 at 15:12
  • @phoog Substituted "reasonable" for "shadow of". Note, a claimant's pleadings are to be liberally construed. – guest271314 Aug 21 '18 at 0:46
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    This doesn't answer the question, or at least has so much excess exposition and so little analysis that any answer is buried. – ohwilleke Aug 21 '18 at 1:11

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