2620161Crime and Criminal LawChapter 5Crime .docx

2/6/2016
1
Crime and Criminal Law
Chapter 5
Crime and Criminal Law
• Criminal law (substantive law)
– Law of crimes
• Defined by statute
– Prescriptions
– Proscriptions
• Code of conduct all are expected to follow
– Enforced by state
• Primary purpose is protecting public from harm
by punishing harmful acts that have occurred and
forbidding conduct that may lead to it
What is Crime?
• Tappan (1947)
– “…an intentional act in violation of the criminal law
committed without defense or excuse, and penalized
by the state”
1. An act in violation of

2. A criminal law for which
3. A punishment is prescribed
4. The person committing this action must have
intended to do so
5. And to have done so without any legally
acceptable defenses or justifications
2/6/2016
2
Crime as a Subset of Harmful Acts
Core offenses
All crimes
All social harm
All harms
Sources of Criminal Law
• State and federal constitutions
• State and federal statutes
– New crimes added as circumstances warrant
• Common law
– Codified in most states by mid‐1800s
• Federal law is growing source of criminal law

• Statutes define elements (various parts) of a
crime more specifically than common law
Limitations on Criminal Law
• State cannot criminalize any conduct it chooses
• Substantive due process
– There are limits to what conduct the law may seek to
prohibit
• Forbids passage of laws that infringe on rights of
individuals
– Free speech
– Assembly
• Is underlying theory for privacy rights
2/6/2016
3
• Overbreadth doctrine
– Laws unconstitutional when they fail to narrowly
define specific behavior to be restricted
• Void for vagueness
– Laws unconstitutional when they fail to clearly
define prohibited act and punishment in advance

• Fair notice
– Letting people know what is and is not permitted
• Must not restrict due process
– Must be enforced fairly and non‐arbitrarily
• Must not restrict equal protection
– Laws cannot restrict rights of members of suspect
classifications
• Cruel and unusual punishment
– Punishments must be proportional to the crime
– Jurisdictions not required to punish in same
manner
• Ex post facto laws
– Cannot be penalized for behavior that was not
illegal at time they acted
– Penalties cannot be increased after crime has
been committed
– Do apply retroactively if they are beneficial
• Bills of attainder
– Cannot have laws that impose punishment
without trial
2/6/2016

4
Elements of Criminal Offenses
• Elements that must be present for criminal
liability to attach:
– Actus reus
– Mens rea
– Concurrence
– Causation
– Harm
• All make up corpus delecti
Actus Reus (Criminal Act)
• The guilty act
• Three forms
– Voluntarily bodily movements
– An omission in the face of a duty to act
• Failure to perform legal duty
• Failure to prevent harm when special relationship exists
– Possession
• If person has some knowledge that his or her
possession is illegal

Mens Rea (Criminal Intent)
• Guilty mind
• Inferred from circumstances surrounding
criminal act
• Motive and intent not same thing
– Intent
• Mental purpose or desire to commit certain act
– Motive
• Refers to cause or reason why act was committed
2/6/2016
5
Mens Rea (Criminal Intent)
• Model penal code sets forth four levels:
– Purposeful
– Knowing
– Reckless
– Negligent
• Doctrine of transferred intent
Concurrence

• Union of criminal act and criminal intent
• Intent must set act in motion
– Those not generated by intent do not constitute
criminal conduct
Causation
• Criminal act is the act that is the cause of the
harm
• Two types:
– Factual cause
• “But for” actor’s conduct, harm would not have occurred
– Legal cause
• Also known as proximate cause
• Consequences of act not reasonably foreseeable to actor
(intervening causes) relieve actor of some degree of criminal
liability
2/6/2016
6
Harm
• The result of the act
– Injury to another or to society
• There can be no liability without harm

• Occurs in all crimes
– Can be focused on harm only to actor
• May be physical or mental
Liability Without Fault
• Strict liability
– Imposes accountability without proof of criminal
intent in situation where society deems it fair to do so
– Statutory rape
• Vicarious liability
– Imputation of accountability from one person to
another
– Based on relationship of individual to person
committing illegal act
– Only in civil law
Inchoate Crimes
• Crimes that occur in preparation for an
offense
• Basically incomplete crimes
• Inchoate
– “To begin” or “to partially put into operation”
• Three types
– Attempt
– Solicitation
– Conspiracy

2/6/2016
7
Parties to Crime
• Doctrine of complicity
– More than one person may be held liable for
criminal activity
• Requires all criminal elements be present
• Common law recognizes four parties:
– Principles in the first degree
– Principles in the second degree
– Accessories before the fact
– Accessories after the fact
Defenses to Criminal Liability
• Defense
– Response made by defendant that allows them to
avoid criminal liability
• Alibi
– Form of defense where defendant asserts they are not
the person who committed the act charged
• Affirmative defenses
– Defendant admits they committed the act but denies
criminal liability
• When defense is used burden of production shifts

to defense (preponderance of evidence)
Justification Defenses
• Ones in which defendant admits they are
responsible for act but claims that under the
circumstances, the act was not criminal
• Three types:
– Self‐defense
– Consent
– Execution of public duties
2/6/2016
8
Justification Defenses: Self‐Defense
• Use of force to repel imminent, unprovoked
attack in which person reasonably believed he or
she was about to be seriously injured
• May only use as much force as is necessary
• Retreat doctrine
– Person must retreat rather than use deadly force if
doing so is possible
• Castle doctrine
– Persons attacked in their home need not retreat

• Can also apply to defense of others and property
Justification Defenses: Consent and
Execution of Public Duties
• Consent
– Persons may consent to suffer what otherwise
would be an objectionable injury
– Must be voluntary, knowing, and intelligent
• Execution of public duties
– Agents of state permitted to use reasonable force
in the lawful execution of their duties
– Tennessee v. Garner (1984)
Excuse Defenses
• Ones in which defendant admits what he or
she did was wrong but claims that under
circumstances he or she is not responsible for
improper conduct
• Four types:
– Duress
– Intoxication
– Age
– Insanity
2/6/2016
9

Excuse Defenses: Duress
• Situations involving threat of serious,
imminent harm to oneself, where act is less
serious than threatened harm
• Those forced to commit crime in such
circumstances do not act voluntarily
– Eliminates actus reus
– Eliminates mens rea
Excuse Defenses: Intoxication and Age
• Intoxication
– Voluntary
• Never leads to acquittal
• May only mitigate
– Involuntary
• May work as defense as person is not responsible for their
actions
• Age
– Persons below certain age lack capability to form
mens rea
– Various jurisdictions define age parameters
Excuse Defenses: Insanity
• Legal term to describe mental illness
• Mental illness and legal insanity are not same
thing

• Impairs mens rea
• Probably most controversial of all defenses
• Rex v. Hadfield (1800)
– First successful case using defense
• Rex v. M’Naghten (1843)
– Cemented modern insanity defense
2/6/2016
10
Excuse Defenses: Tests for Insanity
• M’Naghten rule‐right‐wrong test
• Durham rule‐product test
• Irresistible impulse test
• Substantial capacity test
• GBMI
Procedural Defenses: Entrapment
• One of number of procedural defenses
• Increasingly being raised by those caught in
drug stings and Internet sexual enticement
stings
• Sherman v. U.S. (1958)

– Court laid out two scenarios in which it occurs:
• Crime is result of creative activity of law enforcement
• Prosecutor cannot prove beyond reasonable doubt that
defendant was “independently predisposed” to commit
the crime
Categories of Crime
• Crimes against the person
• Crimes against property
• Crimes against public order and morality
2/6/2016
11
Categories of Crime: Crimes Against
the Person
• Include:
– Murder
– Forcible rape
– Aggravated assault
– Robbery
Murder
• FBI definition

– Murder is willful (non‐negligent) killing of one
human being by another
• Common law definition
– The killing of another with malice aforethought
• Model Penal Code
– Distinguishes between lawful and unlawful killings
– Unlawful killings are criminal homicides
• Three forms
Murder
• Today, murder defined by Model Penal Code as a
killing that occurs:
– Purposefully
– Knowingly, or
– Recklessly
• Murder graded into
– First degree
– Second degree
• States and courts differ on how to consider first
degree murders
2/6/2016
12
Manslaughter
• Voluntary

– An intentional killing that occurs:
• Under mistaken belief self‐defense is needed
• Or in response to adequate provocation while in
sudden heat of passion
–
Existence of adequate provocation does not eliminate criminal
liability, only reduces charge and associate punishment
• Involuntary
– Unintentional killing that occurs as result of
reckless act
Negligent Homicide
• Unintentional killing in which defendant
should have known they were creating
substantial risk of death by their conduct
• Such conduct deviated from ordinary level of
care owed to others
Felony Murder Rule
• Ranked as first degree murder in some states
– Second degree in others
• Individual is held liable for unintended killing
that occurs during the commission of a
dangerous felony
• No requirement of intent to either kill or inflict
serious harm

2/6/2016
13
Forcible Rape
• FBI definition
– “Carnal knowledge of a female forcibly and against
her will”
– “Carnal knowledge by a man of a woman who is not
his wife, forcibly and without consent”
• Definitions created several loopholes
• Modern day statutes have among other things:
– Removed gender specific language
– Adopted marital rape exceptions
• Child sexual assault
Aggravated Assault
• FBI definition
– “unlawful attack by one person upon another for
purpose of inflicting severe or aggravated bodily
injury”
• Involves use of weapons
– Assault: attempt or threat to inflict immediate harm
– Battery: unjustified, offensive physical contact
• Modern statutes have merged assault with

battery to fall under same name
Robbery
• FBI definition
– Taking or attempted taking of anything of value
from care, custody, and control of person or
persons by force or threat of force or violence
and/or putting victim in fear
• Often classified as violent crime
• Extortion
– Taking of property accomplished by threat of
future harm to person, property, or reputation
2/6/2016
14
Property
• Include:
– Arson
– Burglary
– Larceny/Theft
Arson
• FBI definition
– Any willful or malicious burning or attempting to burn,

with or without intent to defraud, a dwelling house, public
building, motor vehicle or aircraft, personal property of
another, etc
• First degree
– Burning of an occupied structure
• Second degree
– Burning of an unoccupied structure
• Third degree
– Burning of personal property
• There must exist an intent to burn
Burglary
• FBI definition
– Unlawful entry of structure to commit felony or theft
• Seventeenth century
– Breaking and entering of dwelling of another at night
with intention of committing felony inside dwelling
• Today burglary can occur during the day
• Not entry alone
– Must be unlawful entry accompanied by intent to
commit another crime inside
2/6/2016
15

Larceny/Theft
• FBI definition
– Unlawful taking, leading, or riding away from the
possession or constructive possession of another
• Graded depending on method of taking and
the value of property taken
– Grand theft versus petty theft (felony and
misdemeanor)
• Crimes against property (theft) more common
than crimes against person
Public Order
• Those in which injury is to the peace and
order of society
– Disorderly conduct
– Unlawful assembly
– Vagrancy
Morality
• Those in which the moral health of society is
injured
– Adultery
– Prostitution
– Obscenity
9/7/2016

1
Federal and State Courts
Chapter 4
What Do Courts Do?
• “Do justice”
– Provide all parties with due process of law
• Make public policy decisions
• Clarify law through interpretation of statutes
and application of general principles to
specific fact patterns (Abraham, 1987)
Jurisdiction
• Defined
• Comes from Latin terms juris and dicere
• Conferred by statute or constitution
• Four primary types:
– Personal
– Subject matter
– Geographic
– Hierarchical

9/7/2016
2
Personal Jurisdiction
• Involves authority of court over person
• Occurs when person comes in contact with
court
– By being citizen of state
– Or by committing an act that contravenes laws of
that state
Subject Matter Jurisdiction
• Involves authority of court to hear particular
type of case
• Also known as limited jurisdiction
– Those courts that may hear only a specified type
of case
Geographical Jurisdiction
• Involves authority of court to hear cases that
arise within specified boundaries
– Venues
• Events must take place in whole or in part within
specific area under jurisdiction of that court
• Not always clear‐cut

– Continuing offenses
• Most crimes can only take place in one place
• Requests for change of venue
9/7/2016
3
Hierarchical Jurisdiction
• Involves division of responsibilities and
functions among various courts
• Includes:
– Limited and general
– Original and appellate
• Limited
– Already discussed
• General
– Involves authority of court to hear variety of cases
Hierarchical Jurisdiction
• Original
– Involves authority of court to hear case initially
• Appellate
– Involves authority of court to review decision of lower
court
– May affirm or reverse decision or return case for

consideration
– Does not conduct retrial
• Relies on oral arguments and legal briefs
– Concerned with legal errors
U.S. Court Systems
• Two court systems in United States
– Systems of each individual state
– The federal court system
• Aka Article III courts
• Jurisdictions frequently overlap
• Article III of Constitution
– Also authorized “such inferior courts as Congress”
chose to create
– Number of justices nor form of potential “inferior”
courts was described
9/7/2016
4
U.S. Court Systems
• First ideas of creating “inferior” federal courts
was not welcomed
• Prominent writers argued for strong federal

system
• Judiciary Act of 1789
– Set number of Supreme Court justices at six
– Also created three federal circuit courts and
thirteen district courts
The Federal Courts
• First set of intermediate‐level appellate courts
more than one hundred years later in 1891
– With purely appellate jurisdiction
• Federal court system consists of three tiers:
– District Courts
– Intermediate appellate courts
– Supreme Court of the United States (SCOTUS)
The Federal Courts: District Courts
• Trial court and court of original jurisdiction for
federal court system
• Ninety‐four federal judicial districts
• Number of judges range from two to twenty‐
nine
– About 677 total
• Federal magistrates
– Subordinate judicial officers who conduct
preliminary proceedings and issue warrants

9/7/2016
5
• Have original jurisdiction over both civil and
criminal cases involving federal statutes
• Can hear civil cases with diversity of
citizenship
• Can hear state civil cases if amount in
question exceeds $75,000.00 and parties are
diverse
– Even if it involves state law
• Most of docket consists of civil cases
• Not courts of general jurisdiction
– Only types specified by acts of Congress
• To protect independence, federal judiciary
– Appointed for life pending good behavior
– Cannot receive salary reduction while in office
The Federal Courts: Court of Appeals
• Aka circuit courts
• Total of thirteen

– Eleven for fifty states
– One for federal circuit
– One for District of Columbia
• District of Columbia has own appeals court
due to large volume of cases filed there
9/7/2016
6
• Jurisdiction of federal circuit hears appeals
from:
– Several federal administrative agencies
– Patent claims
– Claims court
– Court of International Trade
• Remaining eleven organized on territorial
basis
– Each circuit presides over several states
• Number of judges varies

– Six in First Circuit
– Twenty‐nine in Ninth Circuit
• Largest circuit is Ninth
• Appeals heard by three‐judge panels that are
constantly changing
• If conflicts arise between two panels
– Decision can be decided en banc
• Does not have to be all members in larger
circuits
– As few as eleven for Ninth Circuit
9/7/2016
7
The Federal Courts: Supreme Court of
the United States (SCOTUS)
• Court of last resort for federal system and
state cases dealing with federal constitutional
issue
• All decisions are precedents binding on all
courts
• Decisions can be refuted only by other

Supreme Court decisions or constitutional
amendment
• Has original jurisdiction in very few cases:
– Suits between United States and a state
– Suits between a state and a foreign citizen
– Suits between states
• Appellate docket almost entirely discretionary
• Parties seeking appeals must petition for a
writ of certiorari
– Oder to lower court to “send the record up”
• Rule of four
– The number of justices that must vote to hear a
case
• Refusal to accept is not considered decision
on merits of case
– Has no binding precedential value
• Only about 2% of cases are granted certiorari

9/7/2016
8
The Supreme Court Justices
• Law is inherently conservative
– Reflected in court make‐up
• 92 of 112 justices have been white, Protestant
and male
• First Catholic: Roger B. Taney (1835)
• First Jew: Louis Brandeis (1916)
• First black: Thurgood Marshall (1965)
• First woman: Sandra Day O’Connor (1981)
The Supreme Court Justices
• Current Court has nine justices, including one
chief justice
– Chief Justice John Roberts (since 2005)
• Congress has authority to reduce or enlarge
number of justices
• Court did not immediately establish significant
presence in affairs of country
– During term of John Marshall
• Today Court plays significant role in public affairs

The State Courts
• Workhorses of American judicial system
• Systems differ from state to state
• In general, four tiers of courts
– Courts of limited jurisdiction
– Courts of general jurisdiction
– Intermediate appellate courts
– Final appellate court, or court of last resort
9/7/2016
9
The State Courts: Courts of Limited
Jurisdiction
• Deal with less‐serious offenses and civil cases
• Referred to by variety of names
• May be responsible for issuing search and
arrest warrants and conducting preliminary
stages of felony cases
• Civilly, handle juvenile delinquency cases,
family law, and probate

The State Courts: Courts of Limited
Jurisdiction
• Proceedings often more informal in nature
• Generally no right to trial
• Appeals done through a trial de novo
• No records kept except for judgement
– No requirement to do so
• Are important for three reasons
– May be only experience with court system for most
– Process tremendous number of cases
– Involved in crucial early stages of criminal cases
The State Courts: Courts of General
Jurisdiction
• Trial courts for civil and criminal matters
• Original jurisdiction for felony cases
• Generally authorized to hear many matters
not exclusively designated for courts of limited
jurisdiction
– May sometimes have concurrent jurisdiction with
lower courts
• May also hear appeals from lower courts
• Precise workload varies by jurisdiction
9/7/2016
10
The State Courts: Intermediate

Appellate Courts
• Small states or those with small populations
have only one level of appellate courts
• Other states (39) have two levels
– Intermediate
– Court of last resort
• Largely a creation of the twentieth century
• Referred to by variety of names
The State Courts: Intermediate
Appellate Courts
• Hear felony appeals of right
– Those state legislatures permit all defendants as
matter of law
– Occur after final order has been entered by trial
court
• Number of judges vary
• Many states have more than one
The State Courts: Final Appellate Court
or Court of Last Resort
• Usually called state supreme court
• Forty‐eight states have one
• Two states have two (Oklahoma and Texas)
– One for civil cases

– One for criminal cases
• Number of judges vary from three to nine
• Those in states with intermediate appellate
levels hear majority of cases on discretionary
basis
9/7/2016
11
The State Courts: Final Appellate Court
or Court of Last Resort
• Most states require these courts to hear death
penalty appeals
• Those with only one appellate level are
mandated by law to hear all appeals
• Only option after state supreme court is the
United States Supreme Court
Overview of the Criminal Process
• Pretrial proceedings
• Jury and jury selection
• Trial
• Sentencing
• Appeals

Pretrial Proceedings
• Begins with either filing of complaint or arrest
– Complaint defined
– Serves as charging document for preliminary hearing
• If person arrested, police generally fill out
complaint later
• Search and arrest warrants obtained by police
officers
– Require affidavit delineating facts creating probable
cause
9/7/2016
12
• After arrest, individuals are booked
– Official entry into police blotter
– Indicates suspect’s name, arrest time, offense
– Includes fingerprints and photographs
• First court appearance in initial appearance
– Takes place in municipal or justice of peace court
– Here suspects informed of:
• Rights
• Nature of charges

• Whether bail is granted (and amount) or denied
• Next appearance is preliminary hearing
– Magistrate determines if probable cause exists
• If yes, defendant “bound over” for trial
– Means trial date is set and defendant notified of
pending charges
– Preliminary hearing is formal adversarial proceeding
conducted in open court
– Deemed a “critical stage” requiring counsel
• Charges then filed in one of two ways
– Information or indictment
• Grand jury
– Typically twenty‐three people
– Proceeding not open to public
– Formed only at discretion of prosecutor in some
states
– Does not include defendant or defense counsel
– Hears only evidence presented by state
– Rare when indictments not returned
– Are checks on overzealous prosecutors
9/7/2016

13
• After charges filed, arraignment occurs
– Formal hearing before felony court
• Defendants advised of rights and again informed
of charges
• Defendant enters plea:
– Guilty
– Not guilty
– No contest (nolo contendere)
– Standing mute (entered as “not guilty” plea)
– Alford plea (not widely accepted)
The Jury and Its Selection
• Replaced trial by combat or ordeal
• Originally composed of knowledgeable
witnesses
– Could end up with witness/judgement wisdom
– Gradually became disinterested parties
• Finders of fact, not law
• Selection begins once trial date is set
• Members randomly selected
– Automobile and voting records usually used
• Potential jurors summoned (venire)
• Prospective jurors examined to determine

biases (ensure impartiality)
– Called voir dire
– Stacking the deck in reality
– Jury consultants
• Especially for civil cases
• Both sides may seek to remove potential
jurors by using challenges
9/7/2016
14
• Challenges for cause
– Use specific and valid reason to dismiss juror
– Typically unlimited number allowed
• Peremptory challenges
– Do not use any reason
– Typically limited number allowed
– May not be based on race (Batson v. Kentucky, 1986)
– May not be based on gender (J.E.B. v. Alabama, 1994)
• Juries need not be composed of traditional twelve
members

– No constitutional requirement
• Williams v. Florida (1970)
– Juries with as few as six members approved for both civil
and criminal trials
• No requirement verdicts be unanimous
– Unless jury is composed of six members
• Burch v. Louisiana (1979)
• “Jury of ones peers”
– Must be selected from community where crime took place
The Trial
• Opening statements
– First prosecution (carry burden of proof)
– Defense can reserve opening until after
prosecution presents case‐in‐chief
• Prosecution’s case‐in‐chief
– Must establish each element of crime beyond
reasonable doubt
• Burden of proof in criminal trial
– Accomplishes this with evidence and witnesses
9/7/2016
15

The Trial
• Defense’s case‐in‐chief
– Not required
– Several types of defenses can be used
• Prosecution may choose to rebut defense’s
case
• Closing arguments
– Prosecution goes last
• Jury instructions and jury deliberation
Sentencing
• If found not guilty
– Set free, protected by double jeopardy
• If found guilty
– Sentence imposed by judge after presentence
investigation report from probation
– In death penalty cases, jury must sentence
• Ring v. Arizona (2002)
• Types of sentences
– Incarceration, suspended sentences, probation, fines,
etc.
Appeals
• Two ways to challenge trial outcome
– Direct appeal

• Challenges conviction
– Indirect appeal
• Challenges state’s power to incarcerate
• Habeas corpus is indirect appeal
– “You have the body”
– Requires person directed at to either justify
confinement of person named or release them
from custody
9/7/2016
16
Recent Dynamics in Habeas Corpus
• Congress restricted use of habeas corpus
– Imposed time limits on federal petitions if
evidence there is intentional delay to injure
prosecutor’s case
• Congress and Supreme Court have limited
habeas corpus
– Restricting how they are filed and pursued
– Require all issues be presented in one writ rather
than several consecutive writs
Court Actors
• Judges

• Prosecutors
• Defense attorneys
Court Actors: Judges
• Serve as referees
• Responsible for enforcing court rules
• Instruct jury on law
• Determine law
• Not representative of American society
– Mostly white, male, upper middle class
9/7/2016
17
Judge Selection Methods
• Appointment
– Generally by chief executive
• Election
– Partisan
– Nonpartisan
– By legislature
• Merit system

Merit System
• Created by American Judicature Society in 1909
• Aka Missouri plan
• Become popular only recently
– Four states used in 1960
– About half used by 1998
• A nonpartisan commission draws up list of qualified
candidates
• Governor appoints new judges from this list
• After period of time after selection, they stand for
election
– Retention
Court Actors: Federal Prosecutors
• No public prosecutors under early common
law
• 1789 Judiciary Act
– Provided U.S attorney for each court district
• Appointed by president
• In 1870, Congress authorized creation of
Department of Justice
– Provided for attorney general and assistants

9/7/2016
18
Court Actors: Federal Prosecutors
• Attorney general is political appointee
– Administrates prosecution priorities for deputy
attorneys for deputy attorneys general
• Deputy attorneys general are appointed by
president and confirmed by Senate
• Assistant U.S. attorneys are not appointees
Court Actors: State Prosecutors
• Usually elected
– Have appointed assistants who do most of trial
work
• Duty is to prosecute cases in name of people
• Duty is to do justice
– Pursuing those who have committed crimes
• Have tremendous power in deciding whom to
prosecute coupled with little oversight
Court Actors: Defense Attorneys
• Expected to represent clients as effectively as
possible within courtroom rules
• Focus on five areas:
– Ensure that the defendant’s rights are not violated

– Ensure that the defendant is aware of all options
– Provide the best, ethical defense
– Investigate and prepare the defense
– Argue for lowest possible sentence or best
possible plea bargain
9/7/2016
19
Types of Defense Counsel
• Privately retained counsel
• Public defenders
• Court‐appointed counsel
• Contract system
The Legal Profession
• Has had long, colorful history
• Until 1870s little control held over who called
themselves a lawyer
• In 1878 the American Bar Association was
created
– Tasked with promulgating regulations and
standards for practicing law
– Eventually all states created one and took over
responsibility for their own regulations

The Legal Profession
• Bar membership requirements today (At
minimum)
– Degree from accredited law school
– Passage of bar exam
– Background check
• Legal education
– Casebook approach
– Socratic method
2/6/2016
1
Criminal Procedure
Chapter 6
Criminal Procedure and Purpose
• Sets forth appropriate behavior for agents of
state if they deprive individual of their liberty
• Derived from due process clause of Fifth and
Fourteenth Amendments
– Tremendously important legal concept

• Procedural law is pendulum between due
process and crime control models
• Procedural law attempts to balance goals of
these two models
Sources of Criminal Procedure Law
• U.S. Constitution
• Bill of Rights
– Particularly Fourth, Fifth, and Sixth Amendments
• Fourteenth Amendment
• State Constitution
• Federal and state statutes
• Supreme Court decisions
2/6/2016
2
Search and Seizure Law: The Warrant
and Reasonableness Clauses
• Governed by in large part by Fourth
Amendment
• Two main clauses:
– Warrant clause

• All warrant must be based on probable cause
• Must describe person, place, or thing with particularity
– Reasonableness clause
• Allows searches without warrants
• Probable cause and exigent circumstances must exist
Search and Seizure Law: Probable
Cause
• Brinegar v. United States (1949)
– Defined probable cause
• Illinois v. Gates (1983)
– Probable cause is fluid concept
• Does not require absolute certainty or even
great likelihood
• Similar to preponderance of evidence
standard in civil trials
Search and Seizure Law: Arrest
• Fourth Amendment prohibits unreasonable
seizures
• Seizure
– Exercise of dominion or control by police over a
person or an item
– Is a broader term than arrest
• Detention

– Occurs when reasonable person viewing particular
police conduct as whole and within setting would
conclude police had restrained their liberty so that
they are not free to leave
2/6/2016
3
Search and Seizure Law: When an
Officer May Arrest
• With a warrant
• If officer has probable cause
• If misdemeanors or felonies occur in presence
of an officer or outside of a private dwelling
• Police may not make warrantless arrests in
private dwelling unless there are exigent
circumstances or they have consent to enter
Search and Seizure Law: Manner of
Arrest
• May use whatever force is reasonable under
circumstances
• Deadly force permitted only when necessary
to protect life
• Knock and announce
– Must announce presence and purpose

– Give occupant reasonable time to open door
– Rule may be ignored in certain circumstances
Search and Seizure Law: Types of
Seizures
• May ask questions of anyone in public‐not an
arrest or seizure
– Citizens may ignore or walk away‐does not
constitute probable cause
• “Seizure tantamount of arrest”
– Requires more than mere suspicion, but not
probable cause
– Traffic stops
– Stop and frisks on street
2/6/2016
4
Search and Seizure Law: Stop and Frisk
• Terry v. Ohio (1968)
• Requires reasonable suspicion based on experience
– Less demanding than probable cause
• Stop
– Must be temporary and no longer than necessary under
circumstances

• Frisk
– If stop does not allay officer fears
– Pat‐down of outer clothing
– Officer may not manipulate items felt in order to discern
what they are
Search and Seizure Law: Vehicle Stops
• Seizure occurs whenever a vehicle is stopped
• Must have at least reasonable suspicion
– Except certain roadblocks
• May ask driver and passengers to exit
• May request documentation such as VIN and
ask other questions
• May seek consent searches
Search and Seizure Law: Searches
• Defined
• Katz v. United States (1967)
– Court created reasonable expectation of privacy
– Fourth Amendment applies only to such places
• Reasonable expectation of privacy
– Subject of search must have a subjective
expectation of privacy
– Society must view that expectation as reasonable

2/6/2016
5
Exceptions to Search Warrant
Requirement
• Search Incident to Arrest
– Chimel v. California (1969)
– Only applies if arrest is made
– “Lunge area”
• Consent
– Must be both voluntary and intelligent
– Must be limited to both time and area
– Requires proper authority to consent
• Co‐occupants present
• Co‐occupants not present
Requirement: Vehicles
• Carroll v. United States (1925)
• Lessened expectation of privacy when in
public
• To search without warrant:
– Must demonstrate probable cause exists
– Must establish vehicle is mobile
• Search incident to arrest after arrestee is
secured not permitted unless search is for
evidence relating to arrest

Requirement: Vehicles
• Inventory searches limited to protection of
property of arrestee
– Warrantless is okay so long as they are routine and
not done as pretext
• Surveillance and monitoring of vehicles permitted
on open road
– Not permitted when vehicle is in private dwelling
• Installation of tracking devices on vehicle in
public area not permissible without search
warrant
– Installation constitutes a tresspass
2/6/2016
6
Requirement: Plain View
• Harris v. United States (1968)
– Objects subject to seizure if they are in plain view of
officer who has legal right to be in position to see
them
• Not actually an exception
– Instance in which it does not apply
• Court has retreated from requirement that

observations must be “inadvertent”
• Item must be immediately apparent as
contraband
• Police may use tools to aid in their observation
Requirement: Open Fields
• Defined
– Misleading term
– Curtilage
• Do not fall under protection of Fourth
Amendment
• May be achieved while trespassing
• Aerial surveillance permitted
Requirement
• Abandoned property
– Not protected under Fourth Amendment
– Depends on where property is abandoned and on
intent of disposer
• Special needs of law enforcement
– Also know as administrative searches
– Applied in cases that are mixture of criminal
investigation and conduct by other public agencies
– Probationers/parolees

2/6/2016
7
Right to the Assistance of Counsel
• Specifically enumerated in Constitution
• Originally interpreted as those who wanted
and could afford counsel, could not be denied
• Powell v. Alabama (1932)
– Due process requires appointment of attorney at
government’s expense for indigent defendants
facing capital charges
• Johnson v. Zerbst (1938)
– Made right applicable to all federal felony cases
Right to the Assistance of Counsel
• Gideon v. Wainwright (1963)
– Applied previous cases to states
• Argersinger v. Hamlin (1972)
– Extending right to any indigent defendant facing
incarceration for felony or misdemeanor
• Possible sentence of more than six months
Right to Counsel During Interrogations
and Pretrial Identification Procedures
• Fifth Amendment provides protections against

self‐incrimination
– Can be permitted if it is voluntary
• Escobedo v. Illinois (1964)
• Miranda v. Arizona (1966)
– Suspect must be informed of rights before
custodial interrogation
– Court set forth what police should say
• Miranda warnings
2/6/2016
8
Miranda Rights
• Right to remain silent
• Anything defendant says can be used against
him/her in court
• Right to have attorney present during
questioning
• If they cannot afford one, one will be
appointed for them prior to any questioning
When Miranda Applies
• Custody
– When suspect has been subject to formal arrest or
equivalent restraints on freedom of movement

– Free to leave test
• Interrogation
– Police ask questions the answers to which may
incriminate
– In circumstances in which police, through actions,
create “functional equivalent” of interrogation
• Engage in activity they “should known is reasonably likely to
evoke an incriminating response from suspect”
When Miranda is NOT Required
• Routine traffic stops
• Sobriety check points
• Conversations between two officers in vicinity of
suspect
• Voluntary statements without prompting
• Routine questioning of persons at crime scene
• Clarifying questions
• Questions that are part of stop and frisk
• Threat to public safety
2/6/2016
9
Extensions and Application of Miranda
• After Fifth Amendment evoked:
– Police cannot question more unless suspect
initiates communication

– Suspect cannot be questioned about other crimes
unrelated to current offense
• Police need not let suspect know lawyer is
waiting if acquired by family member
• Police posing as inmate
• Requesting lawyer at bail hearing not
considered invocation of right to counsel
– Charges have not been filed yet
• If police obtain voluntary, but unwarned
confession, they can remedy any confusion if
they give proper Miranda warnings and obtain
waiver of rights and then re‐obtain confession
– Suspect does not need to know initial confession
was inadmissible
• Illegally obtained confession may be admitted
at trial to impeach defendant’s testimony
– Must sole be used to impeach testimony
• Miranda rights may be waived
– Knowingly
– Intelligently
– Voluntarily

2/6/2016
10
Pretrial Identification Procedures
• Suspect has right to counsel at lineup if it
occurs after criminal charges have been filed
– Constitutes critical stage in prosecution
– Potential for prejudicial error
• No right if lineup takes place prior to charges
being filed
The Confrontation of Witnesses Clause
• Affords defense opportunity to test credibility of
hostile witnesses
– Prevents ex parte evidence
• Pointer v. Texas (1965)
– Made confrontation clause obligatory to states
• Crawford v. Washington (2004)
– Statements of absent witnesses may be admitted only
when witness is unavailable or if defense had prior
opportunity to cross‐examine
– Unavailable‐Witness demonstrably unable to testify in
person
– Does not guarantee right to face‐to‐face confrontation

The Right to Compulsory Process
Clause
• Defendants have right to compel favorable
witnesses to appear in court to testify on their
behalf
• Must show proposed witnesses’ testimony
and/or evidence is relevant and that such
testimony would not be cumulative
• Washington v. Texas (1967)
– Made compulsory process applicable to states
– Co‐defendant’s testimony not sufficient for use by
defense
• Only prosecution
2/6/2016
11
The Exclusionary Rule
• Any evidence obtained by government in
violation of Fourth Amendment guarantee
against unreasonable searches and seizures is
not admissible in criminal trial for purposes of
proving guilt
• Judicially created remedy for violations
Advancing Toward the Exclusionary
Rule

• Boyd v. United States (1886)
• Adams v. New York (1904)
• Weeks v. United States (1914)
– Birth of exclusionary rule
– Only applied to federal government
– Led to issue of silver platter doctrine
• Nardone v. United States (1939)
Advancing Toward the Exclusionary
Rule
• Wolf v. Colorado (1949)
– Applied exclusionary rule to states
– Left enforcement up to states
• Mapp v. Ohio (1961)
– Fully applied exclusionary rule to states
– State failed to provide adequate remedies for
violations committed by state police
2/6/2016
12
Curtailing the Exclusionary Rule

• Court has held rule does not in civil and grand
jury investigation
• Number of lower courts have concluded rule
does not ply to probation and parole
revocation hearings
• Illegally obtained evidence can be used in
criminal trial for purposes of impeaching
defendant’s testimony
• Rakas v. Illinois (1978)
– In order to claim Fourth Amendment protection,
defendant must have standing
– Person has right to bring legal action by virtue of
being personally harmed
• Independent source exception
– Evidence may be admitted if knowledge of that
evidence is gained from source entirely
independent from source tainted by illegality
• Attenuation exception
– Illegally obtained evidence admissible if there is
less than clear causal connection between illegal
police action and evidence
• United States v. Leon (1984)
– Good faith exception
• Nix v. Williams (1984)

– Inevitable discovery exception

2620161Crime and Criminal LawChapter 5Crime .docx

Recommended

Recommended

More Related Content

Similar to 2620161Crime and Criminal LawChapter 5Crime .docx

Similar to 2620161Crime and Criminal LawChapter 5Crime .docx (20)

More from vickeryr87

More from vickeryr87 (20)

Recently uploaded

Recently uploaded (20)

2620161Crime and Criminal LawChapter 5Crime .docx