Criminal Law and Procedure potx

PART ONE Legal Foundations of Criminal Justice 1 Chapter 1 Fundamentals of Criminal Law and Procedure 2 Chapter 2 Organization of the Criminal Justice System 24 PART TWO The Substanti

JOHN M SCHEB II, Ph.D.

Professor and Head Department of Political Science University of Tennessee, Knoxville

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In this textbook the authors have attempted to present the general principles of substantive and procedural criminal law However, because of the variance in statutes and court decisions from state to state, it is recommended that students and offi cers conduct their own research or consult with their legal advisors and not assume that principles of law applicable in other states apply in their state

2010 He will be sorely missed by his family, his many friends, and by the judiciary and legal profession in the state of Florida.

JOHN M SCHEB was born in Orlando, Florida in 1926 He practiced law in Sarasota, Florida from 1950 until 1974, serving as Associate Municipal Judge from 1957–1959 and as City Attorney from 1959–1970 In 1975, he was appointed to Florida’s Second District Court of Appeal where he served until 1992 During the 1990s Judge Scheb served as Distinguished Professorial Lecturer at Stetson University College of Law

He was a member of the American Bar Association, the American Judicature Society, the Florida Bar, and the Sarasota County Bar Association He was also Master Emeri-tus of the Judge John M Scheb American Inn of Court in Sarasota Judge Scheb held the B.A from Florida Southern College, the J.D from the University of Florida, and the LL.M from the University of Virginia He published articles in a number of law

reviews and was co-author of An Introduction to the American Legal System (West/

Thomson Learning 2002) and Law and the Administrative Process

(Thomson/Wads-worth 2005) Judge Scheb passed away on November 17, 2010

JOHN M SCHEB II was born in Sarasota, Florida in 1955 He attended the University

of Florida from 1974 to 1982, receiving the B.A., M.A., and Ph.D in political ence He is now Professor and Head of Political Science at the University of Tennes-see, Knoxville, where he specializes in public law and the judicial process Professor Scheb has authored numerous articles in professional journals and is coauthor of sev-

sci-eral other textbooks, including An Introduction to the American Legal System (West/

Thomson Learning 2002); Law and the Administrative Process (Thomson/ Wadsworth 2005); and American Constitutional Law, 4th ed (Thomson/Wadsworth 2008).

About the Authors

PART ONE Legal Foundations of Criminal Justice 1

Chapter 1 Fundamentals of Criminal Law and Procedure 2

Chapter 2 Organization of the Criminal Justice System 24

PART TWO The Substantive Criminal Law 55

Chapter 3 Constitutional Limitations on the Prohibition

of Criminal Conduct 56

Chapter 4 Elements of Crimes and Parties to Crimes 90

Chapter 5 Inchoate Offenses 111

Chapter 6 Homicidal Offenses 130

Chapter 7 Other Offenses against Persons 156

Chapter 8 Property Crimes 193

Chapter 9 White-Collar and Organized Crime 220

Chapter 10 Vice Crimes 259

Chapter 11 Offenses against Public Health and the Environment 305

Chapter 12 Offenses against Public Order, Safety, and National Security 338

Chapter 13 Offenses against Justice and Public Administration 374

Chapter 14 Criminal Responsibility and Defenses 399

Brief Contents

Preface xv

PART ONE Legal Foundations

of Criminal Justice 1

Chapter 1 Fundamentals of Criminal

Law and Procedure 2

Crime: An Injury against Society 7 Criminal Responsibility 7

The Role of the Crime Victim 8 Criminal Law Distinguished from Civil Law 8

Origins and Sources of the

Criminal Law 9

Development of Law in the Western World 9 Development of the English Common Law 9 Reception of the Common Law in America 10 State and Local Authority to Enact Criminal Prohibitions 10

Federal Authority to Defi ne Crimes 11 The Model Penal Code 11

Sources of Procedural Law 12

Constitutional Limitations 12

The Bill of Rights 12

The Role of Courts in Developing

the Criminal Law 13

Legal Reasoning in Judicial Decisions 13 References to Statutes and Judicial Decisions 14

The Criminal Process 15

Basic Procedural Steps 16 The Sieve Effect 16

Criminal Sanctions 18Conclusion 18

Chapter Summary 19Key Terms 20

Questions for Thought and Discussion 23

Chapter 2 Organization of the Criminal Justice System 24 Learning Objectives 24 Chapter Outline 24 Introduction 25 Legislatures 26

Legislative Powers of Congress 27 State Legislatures 28

Statutory Interpretation 28

Law Enforcement Agencies 29

Historical Development 29 Policing in Modern America 30

Prosecutorial Agencies 32

Historical Background 32 Federal Prosecutors 32 State and Local Prosecutors 33 The Prosecutor’s Broad Discretion 33

Counsel for the Defense 33

Representation of Indigent Defendants 34 The Role of Defense Attorneys 34

Juries 35

Grand Juries 35 Trial Juries 36

The Courts 36

The Federal Court System 36 State Court Systems 40 Contrasting Judicial Functions and Environments 41

The Juvenile Justice System 43

Historical Basis 43 The Constitutional Reform of Juvenile Justice 44

Table of Contents

Freedom of Assembly 71 Free Exercise of Religion 72

Unusual Religious Practices 72 Refusal of Medical Treatment 73

The Right to Keep and Bear Arms 74 The Doctrines of Vagueness and Overbreadth 75

Freedom from Compulsory Self-Incrimination 76 The Prohibition Against Cruel and Unusual Punishments 77 The Constitutional Right of Privacy 78

Abortion 78 Privacy and Sexual Conduct 79 The Right to Die 80

Equal Protection of the Laws 81 Standards of Judicial Review 82 The Importance of State

Constitutions 82Conclusion 83Chapter Summary 83Key Terms 86

Questions for Thought and Discussion 88Problems for Discussion and Solution 88

Chapter 4 Elements of Crimes and Parties to Crimes 90

Learning Objectives 90 Chapter Outline 90 Introduction 91

The Actus Reus (The Act

Requirement) 92

What Is an Act? 92 When Does Failure to Act Constitute

an Act? 93 Possession as a Criminal Act 94 Status as a Criminal Act 95

The Mens Rea (The Criminal Intent

Requirement) 95

Concurrence of Act and Intent 96 General and Specifi c Intent 96 The Model Penal Code Approach

to Intent 98 The Doctrine of Transferred Intent 100 The Importance of Determining the Intent Required 101

Strict Liability Offenses 101

The Corrections System 45

Historical Background 45

Contemporary Developments in Criminal

Punishment 45

The Burgeoning Prison Population 46

The Future Outlook 47

Conclusion 47

Chapter Summary 47

Key Terms 49

Questions for Thought and Discussion 53

PART TWO The Substantive

The Importance of Judicial Review 58

Unconstitutional Per Se and Unconstitutional as

Applied 59

The Power to Enact Criminal Laws 59

Police Powers of State Legislatures 59

The Federal Lawmaking Power 59

The Commerce Clause 60

Delimiting the Crime of Treason 62

Levying War against the United States 62

Giving Aid and Comfort to the Enemies of the

United States 63

Bills of Attainder and Ex Post

Facto Laws 63

Bills of Attainder 64

Ex Post Facto Laws 64

The Bill of Rights 65

Application of the Bill of Rights to State

and Local Laws 66

The First Amendment Freedom of

Expression 67

Advocacy of Unlawful Conduct 67

Symbolic Speech and Expressive Conduct 68

Free Expression versus Maintenance of the Public

Order 69

Hate Speech 69

Obscenity 70

Profanity 71

The Modern Approach to Homicide 132

First-Degree Murder 133 Felony Murder 135 Second-Degree Murder 136 Manslaughter 137

Vehicular Homicide 139 Justifi able and Excusable Homicide 140

Removal of Life-Support Systems 141

Prosecutorial Burdens in Homicide Cases 142

The Requirement That the Victim was Alive Before the Homicidal Act 142

The Corpus Delicti Requirement 142 When Death Occurs 144

The “One-Year-and-a-Day” Rule 144 Defenses to Homicide Charges 145

Suicide and Assisted Suicide 145

Oregon’s Death with Dignity Act 146 The Michigan Experience 146 The Washington Experience 147 Competing Values in Suicide Laws 147

The Abortion Controversy 148

Partial-Birth Abortion 150 Laws Criminalizing Other Acts Resulting in the Death of a Fetus 150

Conclusion 151Chapter Summary 151Key Terms 153

Questions for Thought and Discussion 155Problems for Discussion and Solution 155

Chapter 7 Other Offenses against Persons 156

Learning Objectives 156 Chapter Outline 156 Introduction 157 Assaultive Offenses 158

Modern Statutory Developments 158

The Causation Requirement 103

Parties to a Crime 104

Common-Law Distinctions among Participants in Crime 104 The Modern American Approach 105

Conclusion 106

Chapter Summary 106

Key Terms 108

Questions for Thought and Discussion 109

Problems for Discussion and Solution 109

Chapter 5 Inchoate Offenses 111

Defenses to the Crime of Attempt 115

Solicitation 116

The Act Requirement 116

Is an Uncommunicated Solicitation

an Offense? 116 The Requisite Criminal Intent 117 Solicitation Distinguished from Other Inchoate Crimes 117

Defenses to the Crime of Solicitation 118

Conspiracy 119

Justifi cation for Making Conspiracy

a Crime 120 The Range of Conspiracies in Society 120 The Act Element in Conspiracy 120 The Requisite Criminal Intent 121 Conspiracy Distinguished from Aiding and Abetting and Attempt 121

The Pinkerton Rule 122 Some Unique Aspects of the Offense of Conspiracy 122

Conspiracy Does Not Merge into the Target Crime 123

The Wharton’s Rule Exception 123 Criticism of the Conspiracy Laws 123 Defenses to the Charge of

Conspiracy 124

Conclusion 125

Chapter Summary 125

Key Terms 127

The Common-Law Theft Offenses 195

Larceny 195 False Pretenses, Embezzlement, and Receiving Stolen Property 196

The Modern Approach to Theft Offenses 197

Federal Approaches 198 State Approaches 199

A Unique Prosecutorial Burden in Theft Offenses 201

Robbery 201

Statutory Approaches to Robbery 201 The Temporal Relationship of Force to the Taking 203

Carjacking 204 Extortion 205

Extortion Distinguished from Robbery 205 Extortion under Federal Law 206

Forgery and Uttering a Forged Instrument 206

Statutory Expansion of Forgery Offenses 206 Common Examples of Forgery and Uttering

a Forged Instrument 208

Worthless Checks 209 Burglary 210

Statutory Revisions of Burglary 210 Possession of Burglar’s Tools 212

Arson 212

Statutory Revision of Arson 213 Burning Property with the Intent to Defraud an Insurance Company 214

Malicious Mischief 214 Defenses to Property Crimes 214Conclusion 215

Chapter Summary 215Key Terms 217

Questions for Thought and Discussion 219Problems for Discussion and Solution 219

Chapter 9 White-Collar and Organized Crime 220

Learning Objectives 220 Chapter Outline 220 Introduction 221 Legal Principles Governing White-Collar Crimes 222

Common Illustrations of Simple and Aggravated

Assault and Battery 159

The Burden of the Prosecution 160

Defenses to Charges of Assault and Battery 161

Mayhem 161

Hazing 161

Stalking 162

Cyberstalking 164

Rape and Sexual Battery 165

The American Approach 166

Statutory Rape Laws 166

Reform in the American Law of Rape 167

Rape Shield Laws 167

A Contemporary Statutory Treatment of Sexual

Offenses 169

Prosecutorial Burdens 171

Rape Trauma Syndrome 171

Sex Offender Registration Laws 173

Defenses to Charges of Sexual Battery 174

Sodomy 174

Abusive Offenses 175

Child Abuse 175

Spousal Abuse 177

Abuse of the Elderly 178

False Imprisonment and Kidnapping 179

The Statutory Offense of False

Federal Kidnapping Laws 181

Defenses to Charges of False Imprisonment

Questions for Thought and Discussion 191

Problems for Discussion and Solution 191

Chapter 8 Property Crimes 193

Table of Contents ■ xi

Introduction 260 Criminal Prohibitions of Consensual Sexual Conduct 261

Fornication, Adultery, and Seduction 261 Sodomy: The Demise of a Historic Offense 262 Incest 262

Bigamy and Polygamy 262 Prostitution 263

Indecent Exposure and Voyeurism 265

Exotic Dancing in Places of Public Accommodation 266

Nudity and Seminudity on Public Beaches 266 Voyeurism 267

Obscenity and Pornography 268

The Emerging Constitutional Standards 268 The Miller Test 268

Signifi cant Post-Miller Developments 269 State and Local Regulation of Obscenity 270 Defenses to Charges of Obscenity 271 Problems of Enforcement 271 Pornography on the Internet 271 Child Pornography 272

Profanity 273 Gambling 274

What Constitutes Gambling? 274 Statutory Regulation of Gambling 275 Prosecutorial Problems and Defenses 276 The Paradox of Gambling Laws 276

Animal Cruelty 277 Alcohol-Related Offenses 277

“Prohibition” 278 Offenses Related to the Consumption of Alcohol

by Minors 278

Public Intoxication 279 Driving Under the Infl uence 280

Zero Tolerance for Juveniles 281 Prosecution of DWI, DUI, and DUBAL Charges 281

Defense of DWI, DUI, and DUBAL Charges 282

Implied Consent Statutes 283

Drug Offenses 283

The Harrison Act 283 Prohibition of Marijuana 284 Modern Federal Drug Laws 284 Modern State Drug Laws 285 The Marijuana Controversy 286 The Crystal Meth Crisis 287

Prosecution of Corporate Defendants 223 Acts by Corporate Agents 223

Antitrust Violations 224

Computer Crimes 225

The USA PATRIOT Act 226 State Laws Proscribing Computer Offenses 227 Anti-Spam Laws 227

International Efforts to Combat Cybercrime 228

Access Device Fraud 229

Identity Theft 230

Federal Legislation 231 State Legislation 231

Intellectual Property Offenses 232

Patent Infringement 233 Copyright Infringement 233 Internet-Based Copyright Infringement 234 Trademark Counterfeiting 235

Theft of Trade Secrets 235

False Statements, Bankruptcy Fraud,

and False Claims 237

The Health Insurance Portability and Accountability Act (HIPAA) 238

Mail and Wire Fraud 238

Money Laundering and Currency

Criminal Prosecution of Tax Violations 244

Racketeering and Organized Crime 244

The Hobbs Act 245 The Organized Crime Control Act of 1970 246

Defenses In White-Collar and Organized

Crime Cases 249

Conclusion 250

Chapter Summary 250

Key Terms 254

Questions for Thought and Discussion 256

Problems for Discussion and Solution 257

Chapter 10 Vice Crimes 259

Learning Objectives 259

Chapter Outline 259

Antismoking Legislation 326

The Florida Initiative 326 New York’s Comprehensive Smoking Ban 326 The Future of Smoking Bans 327

Wildlife Protection Laws 327

The Migratory Bird Act 327 The Endangered Species Act 328 State Regulation of Wildlife 330 What Constitutes Possession? 330 Defenses Rejected 331

Conclusion 331Chapter Summary 332Key Terms 334

Questions for Thought and Discussion 335Problems for Discussion and Solution 336

Chapter 12 Offenses against Public Order, Safety, and National Security 338

Learning Objectives 338 Chapter Outline 338 Introduction 339 Breaches of the Peace 340

Unlawful Assembly and Riot 341 The Federal Anti-Riot Act 341 Disorderly Conduct 342 Excessive Noise 345

Vagrancy, Loitering, Curfews, and Panhandling 345

The American Approach to Vagrancy 346 The Death Knell of Vagrancy Laws 346 Loitering 347

Curfews 349 Panhandling 351

Motor Vehicle Violations 353

Decriminalization of Traffi c Offenses 353 Seat Belts, Cell Phones, and Text Messaging 354

Prohibition of Drug Paraphernalia 288

Problems of Drug Enforcement and

Prosecution 288

Defenses in Drug Cases 290

The “War on Drugs” 290

Drug Courts: A New Approach to an Old

Problem 295

Conclusion 296

Chapter Summary 297

Key Terms 301

Questions for Thought and Discussion 303

Problems for Discussion and Solution 303

Chapter 11 Offenses against Public

Health and the Environment 305

Learning Objectives 305

Chapter Outline 305

Introduction 306

Sources of Law Defi ning Crimes against the

Public Health and the Environment 307

Public Health Legislation 308

The Federal Food, Drug,

and Cosmetic Act 309

Strict Liability Offenses 310

Criminal Liability of Responsible Corporate

Offi cers 311

Defenses under the FDCA 311

Planning and Zoning Laws 312

The Scope of Federal and State

Environmental Statutes 313

Major Federal Environmental Legislation

Providing Criminal Sanctions 314

The Clean Air Act 314

The Clean Water Act 315

The Government’s Requirement of Proof of

Violation of the Clean Water Act 316

The Point Source Problem 317

The Resource Conservation and Recovery

Act 318

The Government’s Requirement of Proof of

RCRA Offenses 320

The Toxic Substances Control Act 321

The Comprehensive Environmental Response,

Compensation, and Liability Act 321

Standard of Liability of Corporate Offi cers 321

Lack of Uniformity in Environmental Laws 322

Defenses to Environmental Crimes 323

Noise Pollution 324

Table of Contents ■ xiii

Contempt 390

Civil Contempt 390 Criminal Contempt 391 Direct and Indirect Criminal Contempt 391

Is Criminal Contempt Really

a Crime? 392 Legislative Contempt 392

Conclusion 394Chapter Summary 395Key Terms 396

Questions for Thought and Discussion 397Problems for Discussion and Solution 398

Chapter 14 Criminal Responsibility and Defenses 399

Learning Objectives 399 Chapter Outline 400 Introduction 400 Defenses in General 401 Defenses Asserting Lack of Capacity to Commit a Crime 402

Infancy 402 Intoxication 403 Insanity 405 Automatism 409

Defenses Asserting Excuse

or Justifi cation 410

Duress 410 Necessity 411 Consent 413 Mistake of Law 413 Mistake of Fact 415 Alibi 416

Defenses Justifying the use of Force 416

Self-Defense 417 Defense of Others 420 Defense of Habitation 420 Defense of Property 421 Defense to Being Arrested 423 Use of Force by Police 424

Defenses Based on Constitutional and Statutory Authority 424

Constitutional Immunity 424 Other Forms of Immunity 425 Double Jeopardy 426

Statutes of Limitation 429

Terrorism and Weapons of Mass

Destruction 361

Antiterrorism Legislation 362 Aircraft Piracy and Related Offenses 363 Naval Piracy 364

Weapons of Mass Destruction 364

Immigration Offenses 365

Conclusion 366

Chapter Summary 366

Key Terms 369

Questions for Thought and Discussion 371

Problems for Discussion and Solution 372

Chapter 13 Offenses against Justice

and Public Administration 374

Sports Bribery 379 Defenses to the Crime of Bribery 379

Perjury 379

Elements of the Offense of Perjury 380 The Burden of the Prosecution 380 Perjury by Contradictory Statements 381 Subornation of Perjury 381

Defenses to the Crime of Perjury 382 Federal Statute on Making False Statements to Government Agencies 383

Obstruction of Justice 384

Modern Statutory Developments 384 The Citizen’s Duty to Assist Law Enforcement Offi cers 385

Resisting Arrest 385

Compounding a Crime 387

The Modern Statutory Approach 387

A Common Scenario of Compounding

a Crime 387

Escape 388

Modern Statutory Approaches to Escape 388 The Elements of the Offense of Escape 388 Defenses to the Charge of Escape 389

Primary Legal Sources 449

The United States Code Annotated 449 Annotated State Codes 449

The National Reporter System 453 The Regional Reporters 453 Syllabi, Headnotes, and Key Numbers 455 The Digests 457

KeyCite 457

Secondary Sources 459

Legal Encyclopedias 459 Textbooks 461

Law Reviews 461 Professional Publications and Other Useful Secondary Sources 461

Computerized Legal Research 461

Legal Research Using the Internet 463

How to Research a Specifi c Point of Law 464

Conclusion 466

Appendix B The Constitution

of the United States

of America 467 Glossary 482

Case Index 497 Subject Index 501

Defenses Based on Improper

Post-Traumatic Stress Syndrome 436

The “Junk Food” Defense 436

Television Intoxication 437

Pornographic Intoxication 437

Postpartum Depression 437

XYY Chromosome Abnormality 437

Multiple Personality Defense 437

Black Rage and Urban Survival Defenses 437

Conclusion 438

Chapter Summary 438

Key Terms 442

Questions for Thought and Discussion 445

Problems for Discussion and Solution 446

Appendix A Access to the Law through

Legal Research 448 The Nature of Legal Research 448

Getting Started in Legal Research 448

We are pleased to present to students in criminology, criminal justice, pre-law, litical science, legal studies, and paralegal studies the sixth edition of a concise yet comprehensive introduction to American criminal law We believe this text is also

po-an appropriate reference for the criminal justice professional who seeks a better derstanding of the functioning of the criminal justice system in the United States Of course, laws vary substantially across jurisdictions, and this text is not intended to be

un-a substitute for independent legun-al reseun-arch or competent legun-al un-advice

Criminal law is among the most dynamic fi elds of American law In preparing the sixth edition, we have endeavored to capture the most signifi cant recent develop-ments in the criminal law, including state and federal statutes, appellate court deci-sions, and trials And yet we recognize that what students need to know most are the basic concepts of criminal law and procedure—concepts rooted in the English com-mon law, the United States Constitution, and the fi fty state constitutions Thus we continue to emphasize the common-law background and constitutional foundations

of criminal law

Part I furnishes an overview of the criminal law Chapter 1 introduces the reader to basic concepts, such as the legal defi nition of a crime, the development of the crim-inal law, the distinction between substantive and procedural criminal law, and the stages of the criminal process Chapter 2 examines the organization of the criminal justice system, with emphasis on the roles of legislatures, courts, and other govern-mental actors in developing the criminal law

Part II surveys the substantive criminal law from its common-law sources to its modern statutory development In Chapter 3 we have attempted to give the reader an insight into the relevance of the U.S Constitution and the state constitutions to the enactment and enforcement of criminal prohibitions Chapter 4 discusses elements

of crimes and parties to crimes Chapter 5 explains the inchoate offenses of attempt, solicitation, and conspiracy Chapters 6 and 7, respectively, examine homicidal crimes and other crimes against persons Chapter 8 looks at basic property offenses, while Chapter 9 deals specifi cally with white-collar crime and organized crime Chapter

10 discusses the crimes of vice, including alcohol and drug offenses Chapter 11 plains offenses against public health and the natural environment Chapter 12 deals with offenses against public order, safety, and national security, including terrorism

ex-Chapter 13 looks at offenses against the administration of justice and against public administration generally Finally, Chapter 14 provides an easy-to-follow classifi cation

of criminal defenses and includes some innovative defenses

Preface to the Sixth Edition

con-• Beginning with Chapter 3, each chapter includes boxes labeled “Case in Point.”

These concise summaries of cases illustrate key concepts and have proven to be popular with students

• Key terms are identifi ed in boldface type throughout each chapter and listed

at the end of the chapter The end-of-chapter key term list now includes defi nitions

• To make the book more accessible and useful to students, summaries at the end

of each chapter are now keyed to the learning objectives listed at the outset of the chapter

• A set of discussion questions and one or more problems for discussion and tion to test understanding and stimulate classroom discussion are included

solu-• At the end of the book a comprehensive glossary includes defi nitions of all key terms

• Edited versions of important court decisions are available to students and structors on the companion website Notations throughout the book indicate which cases are available online for further study

Chapter 1, Fundamentals of Criminal Law and Procedure

A new section on criminal law, morality, and justice encourages students to examine what role the state should play in issues of public morality The chapter also contains

a new section on references to statutes and judicial decisions, which explains how federal and state court decisions are cited and gives both federal and state examples

Chapter 2, Organization of the Criminal Justice System

A lengthy section has been added that discusses the immigration law enacted in zona and the subsequent suit fi led against the state of Arizona and Arizona’s governor

Ari-in response

Chapter 3, Constitutional Limitations on the Prohibition of Criminal Conduct

A newly expanded section on the right to keep and bear arms has been updated to

include the recent Supreme Court decision in District of Columbia v Heller (2008)

Preface to the Sixth Edition ■ xvii

Also, a new opening vignette has been added that discusses that decision as well as

the 2010 Supreme Court decision in McDonald v City of Chicago.

Chapter 4, Elements of Crimes and Parties to Crimes

A new opening section has been added on the landmark Supreme Court decision in

Robinson v California (1961) Some new information has also been included in the

section on the Model Penal Code approach to intent

Chapter 5, Inchoate Offenses

A new opening section takes a fresh look at the Enron case and includes the recent

Supreme Court decision in United States vs Skilling (2010).

Chapter 6, Homicidal Offenses

This chapter has been focused solely on homicidal offenses and expanded to examine these offenses in greater depth A new table depicts the different levels of criminal homicide in Tennessee A new section on laws criminalizing acts other than abortion that result in the death of a fetus has been added A new chapter-specifi c conclusion was written to encompass the new material

Chapter 7, Other Offenses against Persons

New information has been added to the section on judicial reforms that have curred in the law of rape The section on hate crimes has been retooled and reorga-nized A new chapter opening vignette has been added that discusses the case of the

oc-United States v Lanier (1997).

Chapter 8, Property Crimes

The chapter contains a more in-depth analysis of statutory revisions of burglary

Newly updated Questions for Thought and Discussion encourage students to think critically about the chapter material, and can be used for in-class discourse or take-home exercises The discussion on extortion has been updated and now includes the recent example of the David Letterman extortion case

Chapter 9, White-Collar and Organized Crime

The chapter contains a much more detailed outline, necessary to encompass the large amount of new material that is included to cover the breadth of topics related

to white-collar and organized crime Two new Case-in-Points have been added, tailing cases related to federal computer crimes and identity theft In addition, new sections have been added on anti-spam laws and state laws that proscribe computer offenses The section on organized crime has also been expanded to include informa-tion on racketeering

de-Chapter 10, Vice Crimes

The new title refl ects the merging of two chapters from the previous edition, bining the material on offenses against public morality with that on alcohol and drug offenses The sections on medicinal marijuana and exotic dancing have been up-dated The freshly structured chapter includes a new introduction that defi nes the term “vice crime,” as well as a new conclusion

com-Chapter 11, Offenses against Public Health and the Environment

The chapter opens with a look at the recent BP oil spill and the criminal investigation that followed The discussion on the Clean Water Act has been updated with new supporting court case information, and additional information has also been added

on the Rivers and Harbors Act There is a new Sidebar that presents Tennessee’s tering statute A new section on the future of smoking bans has been added as well

lit-Chapter 12, Offenses against Public Order, Safety, and National Security

The chapter opens with a discussion on the attempted bombing of Times Square in

2010 This chapter also contains recent changes to the laws regarding cell phone age in moving motor vehicles, addressing both phone calls and text messages The discussion on gun control has been expanded, specifi cally the sections on interpret-ing the meaning of the Second Amendment A section on marine piracy has been added to address recent events

us-Chapter 13, Offenses against Justice and Public Administration

A new opening vignette examines the recent scandal and subsequent trial of Rod Blagojevich, and additional information on the federal statute that prohibits making false statements to government agencies has been added There is updated material throughout the sections on bribery The chapter also contains new information on modern developments in what constitutes obstruction of justice

Chapter 14, Criminal Responsibility and Defenses

The chapter opens with a new discussion of John W Hinckley, Jr.’s attempted sination of Ronald Reagan and his plea of not guilty by reason of insanity The discus-sion of self-defense has been updated to refl ect new developments with respect to

assas-“stand your ground” laws

rep-Preface to the Sixth Edition ■ xix

For the Instructor

Online Instructor’s Resource Manual with Test Bank

An improved and completely updated Instructor’s Resource Manual with Test Bank

has been developed by John M Scheb II The manual includes learning objectives, chapter outlines, key terms, and a list of relevant cases for that chapter Each chap-ter’s test bank contains questions in multiple-choice, true–false, fi ll-in-the-blank, and essay formats, with a full answer key The test bank is coded to the chapter objectives that appear in the main text and includes the page numbers in the main text where the answers can be found

Criminal Justice Media Library

Cengage Learning’s Criminal Justice Media Library includes nearly 300 media assets on the topics you cover in your courses Available to stream from any Web-enabled computer, the Criminal Justice Media Library’s assets include such valuable resources as

• Career Profile Videos featuring interviews with criminal justice professionals from a range of roles and locations

• simulations that allow students to step into various roles and practice their decision-making skills

• video clips on current topics from ABC® and other sources,

• animations that illustrate key concepts

• interactive learning modules that help students check their knowledge of tant topics and

impor-• Reality Check exercises that compare expectations and preconceived notions against the real-life thoughts and experiences of criminal justice professionals

The Criminal Justice Media Library can be uploaded and used within many ular learning management systems You can also customize it with your own course material You can also purchase an institutional site license Please contact your Cen-gage Learning representative for ordering and pricing information

pop-Careers in Criminal Justice Website

Available bundled with this text at no additional charge Featuring plenty of

self-exploration and profi ling activities, the interactive Careers in Criminal Justice Website helps students investigate and focus on the criminal justice career choices that are right for them Includes interest assessment, video testimonials from career professionals, resume and interview tips, and links for reference

Book Companion Website

The instructor area of the book’s companion website at www.cengage.com/

criminaljustice/scheb offers access to password-protected resources such as tronic versions of the instructor manual and test bank

elec-For the Student

Online Cases

For the student or instructor who wishes to go above and beyond the content of the text, the companion website contains more than 200 court decisions edited by the au-thors Throughout the book are pointers indicating where one or more of these cases are relevant to the material

CLeBook allows students to access Cengage Learning textbooks in an easy-to-use online format Highlight, take notes, bookmark, search your text, and, in some titles, link directly into multimedia: CLeBook combines the best aspects of paper books and e-books in one package

Their questions, comments, and suggestions have been extremely useful Finally, we thank our wives, Mary Burns Scheb and Sherilyn Claytor Scheb, for their patience and support, without which the project could not have been undertaken, much less completed

As always, we assume full responsibility for any errors contained herein We come comments and suggestions from our readers

[deceased]

scheb@utk.eduDecember 15, 2010

We would like to thank the reviewers of the fi fth edition for their helpful comments

as we prepared this sixth edition:

David AylorTrident Technical CollegeWilliam Bower

Park UniversityFrank Butler

La Salle UniversityEarl G PenrodOakland City UniversityLarry RosintoskiTrident Technical CollegeVincent M RussoRichard J Daley CollegeMarcia Scott

Hilbert CollegeWilliam StielowTroy UniversityJonah TriebwasserMarist CollegeJason WallTyler Junior College

xxi

Legal Foundations

of Criminal Justice

LEARNING OBJECTIVES

After reading this chapter, you should be able to explain

1 the essential elements of a crime and how crimes differ from other legal wrongs

2 the difference between substantive and procedural law

3 how American criminal law has developed from its medieval English origins

4 how various crimes protect different societal interests

5 the relevance of the U.S Constitution, Bill of Rights, and the constitutions of the fifty states to

the criminal justice system

6 the different roles of legislatures and courts of law in developing the criminal law and

procedure

7 how to read citations to statutes and cases and how to “brief” a case

8 basic procedural steps associated with criminal prosecutions

9 the variety of sanctions imposed on people convicted of crimes

The Role of Courts in Developing the Criminal Law

The Criminal Process

CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 3

A fundamental problem facing every society is how to achieve social control—

protecting people’s lives and property and establishing socially desirable levels of der, harmony, safety, and decency Societies have developed several informal means

or-of achieving this control, including family structures, social norms, and religious cepts In contrast, law is a formal means of social control Law can be defi ned as a body of rules prescribed and enforced by government for the regulation and protec-tion of society Criminal law is that branch of the law prohibiting certain forms of conduct and imposing penalties on those who engage in prohibited behavior

pre-All modern societies have developed systems for administering criminal justice

What distinguishes democratic societies from authoritarian ones is a commitment to

the rule of law In democratic societies such as ours, a person cannot be convicted

of a crime unless he or she has committed a specifi c offense against a law that

pro-vides for a penalty This principle is expressed in the maxim nullen crimen, nulla

poena, sine lege, a Latin phrase meaning, “there is no crime, there is no

punish-ment, without law.” In the United States, formal law governs every aspect of criminal justice, from the enactment of criminal prohibitions to the imposition of punishment upon those who violate these prohibitions

Our criminal law prescribes both substantive and procedural rules governing the

everyday operation of the criminal justice system Substantive criminal law

pro-hibits certain forms of conduct by defi ning crimes and establishing the parameters

of penalties Procedural criminal law regulates the enforcement of the substantive

law, the determination of guilt, and the punishment of those found guilty of crimes

For example, although substantive law makes the possession of heroin a crime, the procedural law regulates the police search and seizure that produce the incriminating evidence The substantive law makes premeditated murder a crime and sets the pen-alty to be imposed for those convicted of the offense; the procedural law determines the procedures to be observed at trial and, if a conviction ensues, at sentencing

In what many in the media called the “trial of the century,” former football and movie star O.J

Simpson was accused of murdering his ex-wife, Nicole Brown Simpson, and her companion, Ron Goldman The trial began on January 24, 1995 The prosecution’s case again Simpson appeared

to be strong But on October 3, 1995, the jury delivered a stunning verdict, declaring Simpson not guilty A year later the families of the decedents initiated a civil suit against Simpson, alleging that

he was liable for wrongful death On February 4, 1997, a different jury in the civil trial found Simpson liable for the wrongful death of Nicole Brown Simpson and Ron Goldman and awarded the plaintiffs

$8.5 million in damages

The Simpson case illustrates dramatically how a defendant can be accused of a crime and a civil wrong based on the same alleged act Many observers have wondered how the two cases could have come out differently One answer is that they were independent legal actions resulting

in separate trials before entirely different juries Moreover, the standards of proof were different In the criminal trial, the jury had to find Simpson guilty of murder beyond a reasonable doubt In the civil case, the standard of proof was less demanding: the jury had only to find Simpson liable by a preponderance of the evidence Why do we have these parallel systems of justice? How are crimes distinguished from civil wrongs? These are among the questions addressed in this chapter

Figure 1.1 provides an overview of the system of criminal law and procedure that exists in this country The fi gure suggests three fundamental principles at work:

Constitutional supremacy.

entire system of criminal law and procedure is subordinate to the principles and provisions of the U.S Constitution The Constitution sets forth the powers of government, the limits of those powers, and the rights of individuals The Con-stitution thus limits government’s power to make and enforce criminal sanctions

in several important ways These limitations are enforced by judicial review,

which is the power of courts of law to invalidate substantive laws and procedures that are determined to be contrary to the Constitution

Federalism.

• There is a fundamental division of authority between the national government in Washington, D.C., and the fi fty state governments Although both levels of government have authority and responsibility in the realm of criminal justice, most of the day-to-day peacekeeping function is exercised by the states and their political subdivisions (primarily counties and cities) Each of the states has its own machinery of government as well as its own constitution that em-powers and limits that government Each state constitution imposes limits on the criminal justice system within that state Of course, the provisions of the state constitutions, as well as the statutes adopted by the state legislatures, are subordinate to the provisions of the U.S Constitution and the laws adopted by Congress

Separation of powers.

• The national government and each of the fi fty state ernments are constructed on the principle that legislative, executive, and judicial powers must be separated into independent branches of government Thus, the federal government and the states have their own legislative branches, their own executive branches, and their own systems of courts The legislative branch is responsible for enacting laws that specify crimes and punishments The execu-tive branch is responsible for enforcing those prohibitions and for carrying out

gov-The U.S Congress

enacts laws setting

forth federal crimes

and punishments

The Executive Branch

enforces federal laws, prosecutes cases, supervises punish- ments

The Federal Courts

interpret the laws

by deciding ular cases

partic-State Legislatures

enact laws setting forth state criminal prohibitions and penalties

State and Local Law Enforcement, Prosecutorial and Corrections Agencies

State Court Systems

interpret state laws

by deciding ular cases

partic-The Federal Government

is responsible for defining and punishing federal crimes

The State Constitutions

set forth the powers and limits of the fifty state governments

The United States Constitution

sets forth general powers and limits of government and specifies the rights of individuals

FIGURE 1.1 Overview of the American system of criminal law and procedure

CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 5

the punishments imposed by the judicial branch, but it is the judicial branch that interprets the laws and ensures that persons charged with crimes receive fair treatment by the criminal justice system

Every crime involves a wrongful act (actus reus) specifi cally prohibited by the

crimi-nal law For example, in the crime of battery, the actus reus is the striking or

offen-sive touching of another person Even the failure to take action can be considered

a wrongful act if the law imposes a duty to take action in a certain situation For ample, a person who fails to fi le a federal income tax return may be guilty of a federal offense

ex-In most cases, the law requires that the wrongful act be accompanied by criminal

intent (mens rea) Criminal intent does not refer to a person’s motive or reason for

acting, but merely refers to having formed a mental purpose to act To convict a son of a crime, it is not necessary to know why that person committed the crime It is only necessary to show that the individual intentionally committed a prohibited act

per-An unintentional act is usually not a crime, although, as we will discover, there are exceptions to this principle Moreover, in certain instances, one may be held crimi-nally responsible irrespective of intent Crimes of this latter nature are classifi ed as

strict liability offenses. A good example of a strict liability offense is selling liquor

to a minor (Strict liability offenses and general elements of crimes are discussed in Chapter 4.)

Felonies and Misdemeanors

Criminal law distinguishes between serious crimes, known as felonies, and less ous offenses, called misdemeanors Generally speaking, felonies are offenses for

seri-which the offender can be imprisoned for more than one year; misdemeanors carry jail terms of less than one year Common examples of felonies include murder, rape, robbery, burglary, aggravated assault, aggravated battery, and grand theft Typical misdemeanors include petit theft, simple assault and battery, disorderly conduct, prostitution, and driving while intoxicated

Societal Interests Served by the Criminal Law

We can distinguish among types of crimes by the underlying societal interests that give rise to criminal prohibitions Obviously, government has a duty to protect the lives and property of citizens—this is the essence of the social contract on which democratic government is based Society also has an interest in protecting the public peace, order, and safety Today, the protection of the national security from terrorism has become an important concern of the criminal law Over the last several decades, the protection of the public health and the preservation of the natural environment have also come to be seen as interests that should be furthered by the criminal law

And, of course, society has an interest in effi cient and honest public administration and, in particular, the administration of justice

Table 1.1 lists the societal interests served by the criminal law and shows some particular crimes that relate to each interest The table also indicates the chapters in this book that deal with the different types of crimes Note that some of the crimes relate to more than one societal interest

Criminal Law, Morality, and Justice

Traditionally, the preservation of public morality has been regarded as an important function of the criminal law Today this assumption is often questioned by those who believe that morality, like religion, is a personal matter They argue that the state should be neutral in matters of morality, much as it is constitutionally required to be with respect to religion Others, stressing the practical aspect of the problem, invoke the aphorism “you can’t legislate morality.” Over the last several decades, arguments over law and morality have focused on criminal prohibitions of consensual sexual conduct Offenses such as adultery, fornication, and sodomy, which were inherited from the English common law, have become obsolete in modern America In some cases, legislatures have abolished these offenses as they have modernized their crimi-nal codes In other instances, courts have declared unconstitutional the laws defi ning

these crimes See, e.g., Lawrence v Texas, 539 U.S 558, 123 S.Ct 2472, 156 L.Ed.2d

508 (2003) (invalidating laws proscribing sodomy between consenting adults) ever, students must realize that the moral basis of the law extends far beyond ancient prohibitions of sexual conduct Many proscriptions of the criminal law, from animal cruelty to insider stock trading, are based on collective societal judgments about what

How-is right and what How-is wrong

In order to maintain its legitimacy, the criminal law must refl ect the ing morality of the people In a democratic society, laws that do not refl ect broadly

prevail-shared values will be challenged and eventually likely be changed Of course, there

is considerable inertia in the law, and someone has to lead the effort for change

Sometimes interest groups lead the way by lobbying elected offi cials and even fi ling lawsuits in the courts In some instances, such as the civil rights movement of the 1950s and 60s, grassroots social movements have resulted in profound changes in the

law In extreme situations, courageous people have resorted to civil disobedience in

TABLE 1.1 | An Overview of Types of Crimes and the Societal Interests Involved

Societal Interest Served Examples of Crimes Discussed in Chapter(s)

Protection of Persons

against Violence

Assault and Battery, Rape and Sexual Battery, Murder, Manslaughter, Spousal and Child Abuse, Kidnapping, Stalking

Chapter 6, Homicidal Offenses; Chapter 7, Other Offenses against Persons

Protection of Property and

Economic Interests

Vandalism, Theft, Burglary, Arson, Robbery, Extortion, Forgery, Larceny, Embezzlement, Securities Fraud, Insider Trading, Mail Fraud

Chapter 8, Property Crimes; Chapter 9, White-Collar and Organized Crime

Maintenance of Standards

of Decency

Prostitution, Obscenity, Bigamy, Indecent Exposure, Gambling, Alcohol and Drug Offenses

Chapter 10, Vice Crimes

Public Health and the

Safety

Disorderly Conduct, Incitement to Riot, Motor Vehicle Offenses, Loitering, Weapons Violations, Terrorism

Chapter 12, Offenses against Public Order, Safety, and Security

National Security Treason, Espionage, Sabotage, Sedition, Terrorism Chapter 12, Offenses against Public

Order, Safety, and Security Honest and Efficient

CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 7

order to dramatize the injustice of a particular law Such was the case when Dr tin Luther King, Jr went to jail in Birmingham, Alabama rather than abide by racial segregation laws that he and many others deemed to be unjust Today students read about the defunct Jim Crow laws in history books It is hard for students today to understand that such laws once were supported by political majorities in many states and communities Ultimately, after many years of struggle, most Americans came to believe that the laws requiring racial segregation were unjust and needed to be done

Mar-away with, a concept refl ected in the Supreme Court’s decision in Brown v Board

of Education, 347 U.S 483, 74 S.Ct 686, 98 L.Ed.873 (1954) The idea that the law

should not discriminate among people based on their race is a moral principle that has now become fi rmly established in our legal system That is not to say that there is

no racial discrimination in the criminal justice system But the well-established ciple of “equal protection of the laws” provides a moral and constitutional basis upon which to challenge any such discrimination

prin-Crime: An Injury against Society

As suggested by the previous discussion of societal interests served by the criminal law, our legal system regards crimes not merely as wrongs against particular victims but as offenses against the entire society Indeed, there does not have to be an in-dividual victim in order for there to be a crime For example, it is a crime to pos-sess cocaine, even though it is unlikely that a particular individual will claim to have been victimized by another person’s use of the drug This is a crime because society, through its governing institutions, has made a collective judgment that cocaine use is inimical to the public welfare Similarly, certain consensual sexual acts (for example, incest) remain crimes in many jurisdictions because communities continue to regard such actions as contrary to public decency Of course, as society evolves and its stan-dards change, behaviors that were once defi ned as crimes (for example, blasphemy) are no longer subject to criminal sanction Over time, the particular prohibitions of the criminal law more or less refl ect an evolving social consensus about both what is right and wrong and what is public and private When a particular criminal prohibi-tion (for example, adultery) is no longer supported by societal consensus, it is apt to

be unenforced or be stricken from the laws

Because crime is an injury against society, the government, as society’s gal representative, brings charges against persons accused of committing crimes

le-In the United States, we have a federal system—that is, a division of power and responsibility between the national and state governments Both the national gov-ernment and the states enact their own criminal laws Thus, both the national government and the state governments may prosecute persons accused of crimes

The national government initiates a prosecution when a federal (national) law has been violated; a state brings charges against someone who is believed to have vio-lated one of its laws

Criminal Responsibility

The criminal law—indeed, our entire legal system—rests on the idea that individuals are responsible for their actions and must be held accountable for them This is the essential justifi cation and rationale for imposing punishments on persons convicted of crimes On the other hand, society recognizes that certain individuals (for example, young children) lack the capacity to appreciate the wrongfulness of their conduct

Similarly, factors beyond individuals’ control can lead them to commit criminal acts

In such instances the law exempts individuals from responsibility Moreover, there are situations in which acts that would otherwise be crimes might be justifi ed The best example of this is committing a homicide in self-defense Individuals can invoke

a host of defenses beyond a simple denial of guilt Indeed, a substantial body of law is devoted to the topic of criminal responsibility and defenses We examine this topic in some detail in Chapter 14

The Role of the Crime Victim

Because the government prosecutes criminals on behalf of society, the victim of a

crime is not a party to the criminal prosecution By fi ling a complaint with a law forcement agency, a victim initiates the process that leads to prosecution, but once the prosecution begins, the victim’s participation is primarily that of being a witness

en-Quite often, victims feel lost in the shuffl e of the criminal process They sometimes feel that the system is insensitive or even hostile to their interests in seeing justice done Some states are now taking steps to address victims’ concerns Despite some measures being proposed and others that have been adopted, crime victims remain secondary players in the criminal justice system The principal parties in a criminal case are the prosecution (that is, the government) and the defendant (that is, the ac-cused person) In some situations, however, the victim might have another remedy: a civil suit to recover damages for losses or injuries suffered

Criminal Law Distinguished from Civil Law

The criminal law is not the only body of law that regulates the conduct of persons

The civil law provides remedies for essentially private wrongs, offenses in which the

state has a less direct interest Most civil wrongs are classifi ed as breaches of

con-tract or torts A breach of contract occurs when a party to a contract violates the

terms of the agreement A tort, on the other hand, is a wrongful act that does not late any enforceable agreement but nevertheless violates a legal right of the injured party Common examples of torts include wrongful death, intentional or negligent in-

vio-fl iction of personal injury, wrongful destruction of property, trespass, and defamation

of character A crime normally entails intentional conduct; thus, a driver whose car accidentally hits and kills another person would not necessarily be guilty of a crime, depending on the circumstances (see discussions of manslaughter and vehicular ho-micide in Chapter 6) If the accident resulted from the driver’s negligence, the driver would have committed the tort of wrongful death and would be subject to a civil suit for damages

The criminal law and the civil law often overlap Conduct that constitutes a crime can also involve a tort For example, suppose Randy Wrecker intentionally damages

a house belonging to Harvey Homeowner Wrecker’s act might well result in both criminal and civil actions being brought against him Wrecker may be prosecuted

by the state for the crime of willful destruction of property and may also be sued by Homeowner for the tort of wrongful destruction of property The state would be seeking

to punish Wrecker for his antisocial conduct, whereas Homeowner would be seeking compensation for the damage to his property The criminal case would be designated

State v Wrecker (or People v Wrecker, or even Commonwealth v Wrecker, ing on the state); the civil suit would be styled Homeowner v Wrecker.

depend-CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 9

Many antisocial acts classifi ed as crimes have their origin in the norms of primitive societies Humanity has universally condemned certain types of behavior since an-

cient times Acts such as murder, rape, robbery, and arson are considered mala in

se, or inherent wrongs Many other acts that the modern law regards as criminal are

merely mala prohibita; they are offenses only because they are so defi ned by the

law Many so-called victimless crimes, such as gambling or possession of marijuana, are generally not regarded as offensive to universal principles of morality Rather,

they are wrong simply because the law declares them wrong In the case of mala prohibita offenses, society has made a collective judgment that certain conduct, al-

though not contrary to universal moral principles, is nevertheless incompatible with the public good

Development of Law in the Western World

The general consensus is that law developed in Western civilization as leaders began formalizing and enforcing customs that had evolved among their peoples Eventu-ally, informal norms and customs came to be formalized as codes of law The Code of Hammurabi regulated conduct in ancient Babylonia some two thousand years before Christ In the seventh century B.C., Draco developed a strict code of laws for the Athenian city-states Even today, one hears strict rules or penalties characterized as being “Draconian.” These laws infl uenced the Romans in their development of the Twelve Tables in the fi fth century B.C And, of course, long before the time of Jesus, the Hebrews had developed elaborate substantive and procedural laws

In the sixth century A.D., the Emperor Justinian presided over a codifi cation

of the Roman law that would prove to be very influential in the evolution of law

on the European continent The Napoleonic Code, promulgated under Napoleon Bonaparte in 1804 as a codifi cation of all the civil and criminal laws of France, was based largely on the Code of Justinian The Napoleonic Code became a model for a uniform system of law for Western European nations This is why the legal systems

of Western Europe are often said to be “Roman law” systems Roman law systems are based on the primacy of statutes enacted by the legislature These statutes are integrated into a comprehensive code designed to be applied by the courts with a minimum of judicial interpretation

Development of the English Common Law

American criminal law is derived largely from the English common law, which dates

from the eleventh century Before the Norman Conquest of 1066, English law was a patchwork of laws and customs applied by local courts The new Norman kings ap-pointed royal judges to settle disputes based on the customs of the people By 1300, the decisions of the royal judges were being recorded to serve as precedents to guide judges in future similar cases Eventually a common body of law emerged throughout

the entire kingdom, hence the term common law As the centuries passed, coherent

principles of law and defi nitions of crimes emerged from the judges’ decisions Thus,

in contrast with Roman law systems, which are based on legal codes, the common law developed primarily through judicial decisions The common-law doctrine of fol-

lowing precedent, known as stare decisis, remains an important component of both

the English and American legal systems today

By 1600, the common-law judges had defi ned as felonies the crimes of murder, manslaughter, mayhem, robbery, burglary, arson, larceny, rape, suicide, and sodomy

They had also begun to defi ne a number of lesser offenses as misdemeanors In trast with the criminal law that was developing on the continent, England developed trial by jury and trained barristers to argue cases on an adversarial basis A barrister is

con-a lcon-awyer permitted to cross the “bcon-ar” in the courtroom thcon-at sepcon-arcon-ates the bench from the spectators Thus, in England, a barrister is a trial lawyer Although we do not use the term “barrister” in the United States, we do refer to licensed attorneys as having been “admitted to the bar.”

As representative government emerged in England in the seventeenth century, the dominance of the common-law courts diminished Parliament came to play a

signifi cant role in the formation of the criminal law by adopting statutes that

re-vised and supplemented the common law The adversarial system of justice ued, however, and most of the common-law felonies remain part of our criminal law today

contin-Reception of the Common Law in America

Our criminal laws are rooted in the common law as it existed when America claimed its independence from England in 1776 After independence, the new American states adopted the English common law to the extent that it did not con-

pro-fl ict with the new state and federal constitutions However, the federal government did not adopt the common law of crimes From the outset, statutes passed by Con-gress defi ned federal crimes Of the fi fty states, Louisiana is the only one whose legal system is not based on the common law; rather, it is based primarily on the Napole-onic Code

The new American judges and lawyers were greatly aided by Blackstone’s mentaries on the Laws of England, published in 1769, in which Sir William Black-

Com-stone, a professor at Oxford, codifi ed the principles of the common law Blackstone’s seminal effort was a noble undertaking, but it demystifi ed English law Consequently, Blackstone’s encyclopedic treatment of the law was less than popular among English barristers, who by this time had developed a close fraternity and took great pride

in offering their services to “discover the law.” In America, however, Blackstone’s

Commentaries became something of a “legal bible.”

State and Local Authority to Enact Criminal Prohibitions

At the time of the American Revolution, the English common law constituted the criminal law of the new United States As new states entered the Union, their leg-islatures usually enacted “reception statutes,” adopting the common law to the ex-tent that it did not confl ict with the federal or their respective state constitutions

Eventually, most common-law defi nitions of crimes were superseded by legislatively defi ned offenses in the form of statutes adopted by the state legislatures Today, the state legislatures are the principal actors in defi ning crimes and punishments

Persons who violate state criminal statutes are prosecuted in the state courts (see Chapter 2)

For the most part, modern state statutes retain the mala in se offenses defi ned

by the common law, but many of the old common-law crime defi nitions have been modifi ed to account for social and economic changes For example, the offense of

CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 11

rape originated under English common law, but the offense is defi ned much ently under modern state statutes Today, under most state laws, the offender and victim may be of either sex, and the offense encompasses anal and oral as well as vaginal penetrations by a sex organ or by another object Indeed, the broader modern offense of sexual battery embraces all types of nonconsensual sexual impositions (see Chapter 7) As we shall see in subsequent chapters, modern criminal statutes often

differ-go far beyond the common law in prohibiting offenses that are mala prohibita Drug

and alcohol offenses, environmental crimes, offenses against public health, and

traf-fi c violations fall into this category

When authorized by state constitutions or acts of state legislatures, cities and counties may adopt ordinances that define certain criminal violations

Local ordinances typically deal with traffi c offenses, animal control, land use,

building codes, licensing of businesses, and so forth Usually these offenses are prosecuted in courts of limited jurisdiction, such as municipal or county courts (see Chapter 2)

Federal Authority to Define Crimes

As we have seen, the common law of crimes was more or less adopted by the various state legislatures The U.S Congress never adopted the common law, as there was no need for it to do so The national government’s responsibility in the criminal justice area has always been more limited than that of the states Unlike the state legisla-

tures, Congress does not possess police power, which is the broad authority to enact

prohibitions to protect public order, safety, decency, and welfare Yet Congress does possess authority to enact criminal statutes that relate to Congress’s particular legisla-tive powers and responsibilities Thus, there are federal criminal laws that relate to military service, immigration and naturalization, use of the mail, civil rights, and so forth In particular, Congress has used its broad power to regulate interstate com-merce to criminalize a wide range of offenses, including carjacking, loan sharking, kidnapping, illicit drug dealing, wire fraud, and a variety of environmental crimes (see Chapter 3) Of course, persons who commit federal crimes are subject to pros-ecution in the federal courts

The Model Penal Code

The American Law Institute (ALI) is an organization of distinguished judges, yers, and academics that have a strong professional interest in drafting model codes

law-of laws In 1962, after a decade law-of work that produced several tentative drafts,

the ALI published its Proposed Offi cial Draft of the Model Penal Code (MPC)

The MPC consists of general provisions concerning criminal liability, defi nitions

of specifi c crimes, defenses, and sentences The MPC is not law; rather, it is signed as a model code of criminal law for all states It has had a signifi cant impact

de-on legislative drafting of criminal statutes, particularly during the 1970s, when the majority of the states accomplished substantial reforms in their criminal codes In addition, the MPC has been infl uential in judicial interpretation of criminal stat-utes and doctrines, thereby making a contribution to the continuing development

of the decisional law In this text, we illustrate many principles of law by selected statutes from federal and state jurisdictions; however, in some instances where the MPC is particularly infl uential, the reader will fi nd references to specifi c provisions

of the MPC

Sources of Procedural Law

As we noted earlier, the criminal law has both substantive and procedural sions The procedural criminal law is defi ned by legislative bodies through enactment

dimen-of statutes and is promulgated by the courts through judicial decisions and the velopment of rules of court procedure The U.S Supreme Court prescribes rules of

de-procedure for the federal courts Generally, the highest court of each state, usually called the state supreme court, is empowered to promulgate rules of procedure for all the courts of that state

Substantive and procedural criminal laws are subject to limitations contained in the federal and state constitutions For example, the U.S Constitution defi nes the crime

of treason in Art III, Sec 3 In enacting the federal statute prohibiting treason

against the United States, Congress must follow this constitutional defi nition The Constitution (Art I, Secs 9 and 10) also prohibits Congress and the state legislatures

from enacting ex post facto laws and bills of attainder The prohibition of ex post

facto laws means that an act cannot be made a crime retroactively To be criminal, an

act must be illegal at the time it was committed A bill of attainder is a legislative act declaring someone guilty of a crime The U.S Constitution prohibits Congress and the state legislatures from doing this; only courts of law can convict people of crimi-

nal wrongdoing (See Chapter 3 for more discussion of treason, ex post facto laws,

and bills of attainder.)

The Bill of Rights

Many of the most important constitutional provisions relative to criminal justice are

found in the Bill of Rights (the fi rst ten amendments to the Constitution, adopted

by Congress in 1789 and ratifi ed by the states in 1791) Among other things, the First Amendment to the U.S Constitution prohibits government from using the civil or criminal law to abridge freedom of speech The courts have said, for example, that people cannot be prosecuted merely for advocating violence; there must be “immi-

nent lawless action” to justify a criminal sanction on public expression Brandenburg

v Ohio, 395 U.S 444; 89 S.Ct 1827; 23 L.Ed 2d 430 (1969).

In addition to limitations on the enactment of criminal laws, the Bill of Rights has much to say about the enforcement of these laws These provisions, which con-stitute much of the basis of criminal procedure, include the Fourth Amendment prohibition of unreasonable searches and seizures, the Fifth Amendment injunction against compulsory self-incrimination, and the Sixth Amendment right to trial by jury Finally, the Eighth Amendment prohibition of “cruel and unusual punishments”

protects citizens against criminal penalties that are barbaric or excessive

Virtually all the provisions of the Bill of Rights have been held to apply with

equal force to the states and to the national government Duncan v Louisiana, 391

U.S 145, 88 S.Ct 1444, 20 L.Ed.2d 491 (1968) Thus, the Bill of Rights limits the adoption of criminal laws, whether by Congress, the state legislatures, or the myriad city and county legislative bodies The Bill of Rights also limits the actions of police, prosecutors, judges, and corrections offi cers at the local, state, and national levels

State legislatures, courts, and law enforcement agencies must also be aware of the limitations contained in their own state constitutions Although state constitutional

Go to the companion

website for an edited

version of the Supreme

CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 13

provisions are subordinate to provisions of the federal constitution, state tions often go beyond the federal constitution in protecting citizens from govern-mental authorities For example, in the area of search and seizure, a number of state courts have interpreted their respective state constitutions more stringently than the federal courts have interpreted the Fourth Amendment to the U.S Constitution

Courts of law play a crucial role in the development of both the substantive and the

procedural criminal law Trial courts exist primarily to make factual determinations,

apply settled law to established facts, and impose sanctions In so doing, trial courts are bound, as are all courts of law, by relevant constitutional provisions and prin-

ciples In reviewing the decisions of trial courts, appellate courts must interpret the federal and state constitutions and statutes The federal and state constitutions are

replete with majestic phrases, such as “equal protection of the laws” and “privileges and immunities,” that require interpretation That is, courts must defi ne exactly what these grand phrases mean within the context of particular legal disputes Likewise, federal and state statutes often use vague language like “affecting commerce” or “rea-sonable likelihood.” Courts must assign meaning to these and a multitude of other terms Although most states have abolished all, or nearly all, common-law crimes and replaced them with statutorily defi ned offenses, the common law remains a valuable source of statutory interpretation This is because legislatures frequently use terms known to the common law without defi ning such terms For example, in proscribing burglary, the legislature might use the term “curtilage” without defi ning it In such an instance, a court would look to the common law, which defi ned the term to mean “an enclosed space surrounding a dwelling.”

In rendering interpretations of the law, appellate courts generally follow

prece-dent, in keeping with the common-law doctrine of stare decisis In our rapidly

chang-ing society, however, courts often encounter situations to which precedent arguably does not or should not apply In such situations, courts will sometimes deviate from

or even overturn precedent Moreover, there are situations in which there is no cable precedent When this occurs, the appellate courts will have the opportunity to

appli-“make new law.” Thus, appellate courts perform an important lawmaking function

as well as an error correction function Therefore, any serious student of criminal law must follow developments in the decisional law—that is, law as developed by

courts in deciding cases

Legal Reasoning in Judicial Decisions

The English common-law judges originally arrived at decisions by applying nity norms—the common customs of the English people They then judged subse-quent cases by analogizing issues to their previous decisions In the United States

commu-we have written federal and state constitutions, but the process of reasoning by ogy continues, albeit on a more sophisticated basis Students are prone to look upon these basic instruments of legal policy as a body of established rules that are applied

anal-by judges to determined facts But the framers of our federal and state constitutions painted with a broad brush, leaving the courts to mold such concepts as “due pro-cess of law” to a dynamic society Moreover, legislative rules are usually drafted with

particular situations in mind and frequently are unclear when applied to situations the lawmakers did not contemplate or could not have contemplated Legal reasoning develops rules to resolve ambiguities based on the presumed intent of the legislators, where necessary, “to fi ll in gaps,” always subject to constitutional mandates Thus, the use of analogy becomes an indispensable tool as lawyers and judges look for similari-ties to previously adjudicated cases Finally, although reasoning by analogy preserves the experience of the past, increasingly it also requires a consideration of contempo-rary social, cultural, and economic norms when considering the importance given to the facts that resulted in decisions in analogous cases.

References to Statutes and Judicial Decisions

Throughout this text the reader will fi nd references to federal and state statutes and decisions of federal and state courts Appendix A, “Access to the Law through Legal Research,” explains how to fi nd the law in statutes, court decisions, and

“Briefing Cases”

As noted earlier in the chapter, edited cases relevant to

this book have been placed on a companion website

Reading these decisions can be useful to anyone

seek-ing to understand the criminal law, and instructors may

also ask their students to “brief” some or all of these

cases A case brief is simply a summary of a court

deci-sion, usually in outline format Typically, a case brief

contains the following elements:

The name of the case and the date of the decision

ble to a point of law being considered)

The holding of the court

•

A brief summary of the court’s opinion, especially

•

as it relates to key issue(s) in the case

Summaries of concurring and dissenting opinions,

FACTS: Brandenburg, a member of the Ku Klux Klan,

was convicted under Ohio law of “advocate[ing]

the duty, necessity, or propriety of crime, sabotage,

violence, or unlawful methods of terrorism as a means

of accomplishing industrial or political reform” and

for “voluntarily assembling with any society, group,

or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” He was fined

$1,000 and sentenced to 1–10 years in prison His peal was dismissed by the Ohio Supreme Court, and the U.S Supreme Court granted review

ap-ISSUE: Does the First Amendment to the U.S tution permit a state to criminalize the mere advocacy

Consti-of violence?

DECISION: Conviction overturned; Ohio statute clared unconstitutional

de-OPINIONS: Speaking through a per curiam opinion,

the Court unanimously held that “the constitutional guarantees of free speech and free press do not per-mit a State to forbid or proscribe advocacy of the use

of force or of law violation except where such cacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Justices Black and Douglas wrote concurring opinions

advo-COMMENT: The Court narrowed the long-standing

“clear and present danger” test to limit it to instances

of expression involving “imminent lawless action.”

While recognizing that the protections of the First Amendment are not absolute, the Supreme Court in this decision afforded broad constitutional protection

to speech, even that which is hateful, bigoted, or garded by many in the community as dangerous

SIDEBAR

CHAPTER 1 | Fundamentals of Criminal Law and Procedure ■ 15

other publications But at this point we simply mention that statutes enacted by

Congress are usually cited to the United States Code Annotated (U.S.C.A.),

pub-lished by the West Group, while state criminal codes are cited to books pubpub-lished

by state or commercial publishers For example, a citation to 18 U.S.C.A Sec

2101(a) defi nes “riot”; a citation to Ariz Rev Stat Sec 13-2002 refers to a section

of the Arizona Criminal Code that defi nes forgery Court decisions cited in the text are almost always decisions of federal or state appellate courts For example,

Brandenburg v Ohio indicates the name of the defendant petitioning for review

and the state that prosecuted the defendant Data under the name of the case indicates the name of the court and date of its decision, followed by numbers in-dicating the volume and page number of the Reporter, a compendium of judicial

decisions, where the decision is found To illustrate, in Brandenburg v Ohio, the

decision was made in 1969 by the U.S Supreme Court and is found at 95 U.S

444; 89 S.Ct 1827; 23 L.Ed 2d 430 (1969) The U.S citation refers to the volume and page number of an offi cial set of reports; the remainder of the citation re-fers to commercial publications, the Supreme Court Reporter (S.Ct.) and Lawyers

Edition (L.Ed.2d) Whitner v State, 482 S.E.2d 777 (S.C 1997) illustrates a state

court decision—in this instance a 1997 decision of the Supreme Court of South Carolina—found in volume 482, page 777 of the second series of Reporters for the region encompassing South Carolina

By far the broadest and most important constitutional principle relating to criminal justice is found in the Due Process Clauses of the Fifth and Fourteenth Amend-ments to the Constitution The same principle can be found in similar provisions of every state constitution Refl ecting a legacy that can be traced to the Magna Carta (1215), such provisions forbid the government from taking a person’s life, liberty, or

property, whether as punishment for a crime or any other reason, without due

pro-cess of law Due process refers to those procedural safeguards necessary to ensure the fundamental fairness of a legal proceeding Daniel Webster defi ned due process

to mean “a law which hears before it condemns, which proceeds on inquiry and ders judgment only after trial.”

ren-Most fundamentally, due process requires fair notice and a fair hearing That

is, persons accused of crimes must have ample opportunity to learn of the charges and evidence being brought against them as well as the opportunity to contest those charges and that evidence in open court

One of the most basic tenets of due process in criminal cases is the

presump-tion of innocence. Unless the defendant pleads guilty, the prosecution must tablish the defendant’s guilt by evidence produced in court Everyone accused

es-of a nonpetty es-offense has the right to a trial by jury (although, we shall see, trials are actually conducted in only a small minority of cases) In a criminal trial, the

standard of proof is “beyond a reasonable doubt.” The reasonable doubt

stan-dard differs markedly from the “preponderance of evidence” standard that plies to civil cases In a civil trial, the judge or jury must fi nd only that the weight

ap-of the evidence favors the plaintiff or the defendant In a criminal case, the fact

fi nder must achieve the “moral certainty” that arises from eliminating “reasonable doubt” as to the defendant’s guilt Of course, it is diffi cult to defi ne with precision the term “reasonable.” Ultimately, this is a judgment call left to the individual judge or juror

Basic Procedural Steps

Certain basic procedural steps are common to all criminal prosecutions, although specifi c procedures vary greatly among jurisdictions (Figure 1.2 illustrates the major components of the criminal process.) In every jurisdiction law enforcement agencies make arrests, interrogate persons in custody, and conduct searches and seizures All of these functions are regulated by the procedural law In every ju-risdiction there are procedures through which persons accused of crimes are for-mally notifi ed of the charges against them and given an opportunity to answer these charges in court There is a formal charging process which, depending on

the jurisdiction, involves an indictment by a grand jury or an information fi led

by a prosecutor In every jurisdiction there is a procedure known as an

arraign-ment, in which the defendant enters a plea of guilty or not guilty, or in some

instances a plea of nolo contendere (no contest) Only a plea of not guilty

neces-sitates a criminal trial The trial is the crown jewel of criminal procedure—an elaborate, highly formal process, governed by rules of procedure and rules of

evidence, for determining guilt or innocence and imposing punishment on those found guilty

The decisions of trial courts, with respect to pretrial matters as well as the duct of criminal trials, are subject to review by appellate courts All court procedures, from the initial appearance of an accused before a magistrate to the decision of an appellate court upholding a criminal conviction and/or sentence, are governed by an elaborate framework of laws, rules, and judicial decisions

con-The Sieve Effect

As cases move through the criminal justice system from arrest through adjudication and, in many instances, toward the imposition of punishment, there is considerable attrition Of any one hundred felony arrests, perhaps as few as twenty-fi ve will result

in convictions This “sieve effect” occurs for many reasons, including insuffi cient dence, police misconduct, procedural errors, and the transfer of young offenders to juvenile courts

evi-Nationwide, less than 5 percent of criminal cases go to trial Some cases are dropped by the prosecutor for lack of evidence or because of obvious police mis-conduct Others are dismissed by judges at preliminary hearings, usually for simi-lar reasons In those cases that are not dismissed, defendants usually enter pleas of guilty, very frequently in exchange for concessions from the prosecution To avoid trial, which is characterized by both delay and uncertainty, the prosecutor may at-tempt to persuade the defendant to plead guilty, either by reducing the number

or severity of charges or by promising not to seek the maximum penalty allowed

by law

The U.S Supreme Court has upheld the practice of plea bargaining against

claims that it violates the Due Process Clauses of the Fifth and Fourteenth

Amend-ments Brady v United States, 397 U.S 742, 90 S.Ct 1463, 25 L.Ed.2d 747 (1970);

North Carolina v Alford, 400 U.S 25, 91 S.Ct 160, 27 L.Ed.2d 162 (1970) However,

because there is always a danger of coerced guilty pleas, especially when defendants are ignorant of the law, it is the judge’s responsibility to ascertain whether the defen-dant’s guilty plea is voluntarily and knowingly entered and that there is some factual

basis for the offense charged Boykin v Alabama, 395 U.S 238, 89 S.Ct 1709, 23