Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P31 pptx

Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal.. That amendment states, “The powers not delegated to

purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result To act knowingly means

to do so voluntarily and deliberately and not owing to mistake or some other innocent reason An act is reckless when a person knows

of an unjustifiable risk and consciously dis-regards it

An omission, or failure to act, may consti-tute a criminal act if there is a duty to act For example, a parent has a duty to protect his or her child from harm A parent’s failure to take reasonable steps to protect a child could result

in criminal charges if the omission were considered to be at least reckless

Ordinarily, a person cannot be convicted of

a crime unless he or she is aware of all the facts that make his or her conduct criminal

Howev-er, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges NEGLI-GENCE gives rise to criminal charges only if the defendant took a very unreasonable risk by acting or failing to act

Intent

Criminal intent must be formed before the act, and it must unite with the act It need not exist for any given length of time before the act; the intent and the act can be as instantaneous as simultaneous or successive thoughts

A jury may be permitted to infer criminal intent from facts that would lead a REASONABLE PERSON to believe that it existed For example, the intent to commitBURGLARYmay be inferred from the accused’s possession of tools for picking locks

Criminal intent may also be presumed from the commission of the act That is, the prosecution may rely on the presumption that

a person intends the NATURAL AND PROBABLE CONSEQUENCES of his or her voluntary acts For example, the intent to commit murder may be demonstrated by the particular voluntary move-ment that caused the death, such as the pointing and shooting of a firearm A defendant may rebut this presumption by introducing evidence showing a lack of criminal intent In the preceding example, if the murder defendant reasonably believed that the firearm was actually

a toy, evidence showing that belief might rebut the presumption that death was intended

Proof of general criminal intent is required for the conviction of most crimes The intent element is usually fulfilled if the defendant was generally aware that he or she was very likely committing a crime, which means that the prosecution need not prove that the defendant was aware of all of the elements constituting the crime For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that the defendant knew the precise quantity Other examples of general-intent crimes are BATTERY, RAPE, KIDNAPPING, and FALSE IMPRISON-MENT

Some crimes require a SPECIFIC INTENT Where specific intent is an element of a crime,

it must be proved by the prosecution as an independent fact For example, ROBBERY is the taking of property from another’s presence by force or threat of force The intent element is fulfilled only by evidence showing that the defendant specifically intended to steal the property UnlikeGENERAL INTENT, specific intent may not be inferred from the commission of the unlawful act Examples of specific-intent crimes are solicitation, attempt, conspiracy, first-degree premeditated murder, ASSAULT, LARCENY, robbery, burglary, FORGERY, false pretense, and embezzlement

Most criminal laws require that the specified crime be committed with knowledge of the act’s criminality and with criminal intent However, some statutes make an act criminal regardless of intent When a statute is silent as to intent, knowledge of criminality and criminal intent need not be proved Such statutes are called STRICT LIABILITYlaws Examples are laws forbid-ding the sale of alcohol to minors andSTATUTORY RAPElaws

The doctrine of transferred intent is another nuance of criminal intent Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object To illustrate, the law allows prosecution where the defendant intends

to burn one house but actually burns another instead The concept of transferred intent applies to homicide, battery, andARSON Felony-murder statutes evince a special brand of transferred intent Under a felony-murder statute, any death caused in the commission of, or in an attempt to commit, a predicate felony is murder It is not necessary to

prove that the defendant intended to kill the

victim For example, a death resulting from

arson will give rise to a murder charge even

though the defendant intentionally set the

structure on fire without intending to kill a

human being Furthermore, the underlying

crime need not have been the direct cause of

the death In the arson example, the victim need

not die of burns; a fatal heart attack will trigger

a charge of felony murder In most

jurisdic-tions, a death resulting from the perpetration of

certain felonies will constitute first-degree

murder Such felonies usually include arson,

robbery, burglary, rape, and kidnapping

Malice

Malice is a state of mind that compels a

person to deliberately cause unjustifiable

injury to another person At COMMON LAW,

murder was the unlawful killing of one human

being by another withMALICE AFORETHOUGHT, or

a predetermination to kill without legal

justifi-cation or excuse Most jurisdictions have

omitted malice from statutes, in favor of

less-nebulous terms to describe intent, such as

purpose and knowing

Massachusetts, for example, has retained

malice as an element in criminal prosecutions

Under the General Laws of the Commonwealth

of Massachusetts, Chapter 265, Section 1, malice

is an essential element of first- and

second-degree murder According to the Supreme

Judicial Court of Massachusetts, malice is a

mental state that“includes any unexcused intent

to kill, to do grievous bodily harm, or to do an

act creating a plain and strong likelihood that

death or grievous harm will follow”

(Common-wealth v Huot, 403 N.E.2d 411 [1980])

Motive

Motive is the cause or reason that induces a

person to form the intent to commit a crime It

is not the same as intent Rather, it explains why

the person acted to violate the law For example,

knowledge that one will receive insurance funds

upon the death of another may be a motive for

murder, and sudden financial difficulty may be

motive for embezzlement or burglary

Proof of a motive is not required for the

conviction of a crime The existence of a motive

is immaterial to the matter of guilt when that

guilt is clearly established However, when guilt

is not clearly established, the presence of a

motive might help to establish it If a

prosecution is based entirely onCIRCUMSTANTIAL EVIDENCE, the presence of a motive might be persuasive in establishing guilt; likewise, the absence of a motive might support a finding of innocence

Attempt

An attempt to commit a crime is conduct intended to lead to the commission of the crime It is more than mere preparation, but it falls short of actual commission of the intended offense An intent to commit a crime is not the same as an attempt to commit a crime Intent is

a mental quality that implies a purpose, whereas attempt implies an effort to carry that purpose

or intent into execution An attempt goes beyond preliminary planning and involves a move toward commission of the crime

As a general rule, an attempt to commit a crime is a misdemeanor, whether the crime itself is a felony or a misdemeanor However, in

a case of violent crime, an attempt may be classified as a felony Attempted murder and attempted rape are examples of felonious attempts In an attempt case, the prosecution must prove that the defendant specifically intended to commit the attempted crime that has been charged General intent will not suffice For example, in an attempted-murder case, evidence must show a specific intent to kill, independent from the actual act, such as

a note or words conveying the intent In a murder case, intent may be inferred from the killing itself

Conspiracy

When two or more persons act together to break the law, conspiracy is an additional charge

to the intended crime For example, if two persons conspire to commit robbery, and they commit the robbery, both face two charges:

conspiracy to commit robbery and robbery

Defenses

Defenses Negating Criminal Capacity To be held responsible for a crime, a person must understand the nature and consequences of his

or her unlawful conduct Under certain circum-stances, a person who commits a crime lacks the legal capacity to be held responsible for the act

Examples of legal incapacity are infancy, incompetence, and intoxication

Children are not criminally responsible for their actions until they are old enough to

understand the difference between right and wrong and the nature of their actions Children under the age of seven are conclusively presumed

to lack the capacity to commit a crime Between the ages of 7 and 14, children are presumed to be incapable of committing a crime However, this presumption is not conclusive; it can be rebutted

by the prosecution through the admission of evidence that the child knew that what he or she was doing was wrong Anyone over the age of 14

is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity

All states have juvenile courts, which are separate from criminal courts Juveniles who are

accused of a crime are tried in these courts as delinquent children, rather than as criminal defendants This alternative prevents children from invoking the defense of infancy In juvenile courts, criminal charges lead to an adjudication rather than prosecution, because the aim of juvenile courts is to rehabilitate, rather than to punish In the 1990s some state legislatures passed laws to make it easier to prosecute juveniles in adult courts, especially in cases involving violent crimes

Insane persons cannot, in a legal sense, form the intent necessary to commit a crime They are not, therefore, criminally responsible for their actions Courts have applied a variety of

Should More Crimes Be Made Federal Offenses?

Enforcement of criminal laws in the

United States has traditionally been

a matter handled by the states The

federal government, conversely, has

typi-cally limited itself to policing only crimes

against the federal government and

interstate crime This is just one

expres-sion of the U.S system of federalism, the

notion that the federal government exists

in tandem with the states and does not,

without necessity, deprive states of their

powers TheTENTH AMENDMENTto the U.S

Constitution is an example of federalism

at work That amendment states, “The

powers not delegated to the United States

by the Constitution, nor prohibited by it

to the States, are reserved to the States

respectively, or to the people.”

Near the end of the twentieth

century, however, Congress passed a host

of federal laws that directly overlap with

existing state criminal laws Such laws

include the Anti-CarTHEFTAct of 1992,

theCHILD SUPPORTRecovery Act of 1992,

the Animal Enterprise Protection Act of

1992, and new criminal laws onARSON,

narcotics and dangerous drugs, guns,

MONEY LAUNDERINGand reporting,

DOMES-TIC VIOLENCE, environmental

transgres-sions, career criminals, and repeat

offenders As a result, in 1998 the number of criminal prosecutions in federal courts increased by 15 percent

The increase was nearly three times the increase in federal criminal prosecutions

in 1997

In a Report of the Federal Judiciary issued at the end of 1998, U.S Supreme Court Chief JusticeWILLIAM H.REHNQUIST

criticized the congressional movement toward federalizing the criminal justice system.“Federal courts were not created

to adjudicate local crimes,” Rehnquist instructed, “no matter how sensational

or heinous the crimes may be.”

Rehnquist noted the tremendous toll that federalization of crime was exacting

on the federal judiciary, and he decried the damage it was doing to the concept of federalism: “The trend to federalize crimes that traditionally have been han-dled in state courts not only is taxing the judiciary’s resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system.” According to Rehnquist, the problem was political in nature; senators and representatives in Congress were using the act of lawmaking to win or keep their seats: “The pressure in

Congress to appear responsive to every highly publicized societal ill or

sensation-al crime needs to be bsensation-alanced with an inquiry into whether states are doing an adequate job in this particular area and, ultimately, whether we want most of our legal relationships decided at the national rather than local level.”

In his 1998 report, Rehnquist cited a report on federal courts issued by the

1995 JUDICIAL CONFERENCE OF THE UNITED STATES The Judicial Conference recom-mended that federal courts be used for only five types of cases: 1) offenses against the government or its inherent interests; 2) criminal activity with sub-stantial multi-state or international aspects; 3) criminal activity involving complex commercial or institutional enterprises most effectively prosecuted under federal resources or expertise; 4) serious high level or widespread state or local government corruption; and 5) criminal cases raising highly sensitive local issues “Although Congress need not follow the recommendations of the Judicial Conference,” Rehnquist wrote,

“this Long-Range Plan is based not simply on the preference of federal judges, but on the traditional principle

legal tests to determine the mental state of a

criminal defendant who claims that he or she

was insane at the time of the alleged crime One

test is the M’Naghten rule, which was originally

used by an English court in the criminal

prosecution of Daniel M’Naghten

M’Naghten had an insane delusion that the

prime minister of England, Sir Robert Peel, was

trying to kill him Mistaking the prime

minister’s secretary, Edward Drummond, for

the prime minister, M’Naghten killed the

secretary At his trial, M’Naghten asserted that

he had been insane when he committed the

crime The jury accepted his argument and

acquitted him From that decision evolved the M’Naghten test, under which, in order to disclaim criminal responsibility, a defendant must be affected by a disease of the mind at the time he or she commits the act The disease must cause the ability to reason to become so defective that the person does not know the nature and quality of the act or else does not know that the act is wrong A successful invocation of the M’Naghten defense results in commitment to a mental institution for treat-ment rather than imprisontreat-ment

The U.S Supreme Court was presented with

an opportunity to clarify this area of the law in

of federalism that has guided the country

throughout its existence.”

Concern over the federalization trend

spread during the late 1990s The

Crimi-nal Justice Section of the AMERICAN BAR

ASSOCIATION (ABA) organized a task

force—the Task Force on the

Federaliza-tion of Criminal Law—to look into the

matter In 1998, the task force issued a

report in which it criticized the trend

Victor S (Torry) Johnson, a

representa-tive of the National District Attorneys

Association (NDAA) on the task force,

declared in Prosecutor, “By trying to fight

street crime through federal legislation,

Congress misleads the public into

believ-ing that a national response will be

effective and that the problem will be

solved with federal intervention.”

Con-gress then fails to provide enough federal

funding to prosecute all the new laws,

creating a situation in which the efforts of

local law enforcement “are undermined

by the unrealistic expectations created by

Congress’ well-publicized enactments.”

In his 1999 article for Corrections

Today, James A Gondles Jr., executive

director of the American Correctional

Association, lamented the introduction

of low-level, local criminals into the

federal system According to Gondles,

mixing such prisoners with big-time

federal criminals blurs the jurisdictional

line and makes it “more difficult for

those at the state and local levels to do

their jobs.”

Not everyone is troubled by the federalization of criminal law enforce-ment Proponents of federal criminal laws argue that they are necessary in an increasingly mobile society Crime tends

to span more than one state and even local crime can have effects which cross state boundaries In his article for the Hastings Law Journal, Rory K Little, a professor of law at the University of California, Hastings College of Law, defended the increase in federal crimes

as a protection against the inability of states to catch and prosecute all crim-inals If the quality of justice is better in the federal courts, Little opines, “then problems of crime cannot be ignored federally while state criminal justice systems slowly sink and justice fails.”

A U.S Supreme Court decision in March 1999 constituted an approval of increased federal authority over crime

In United States v Rodriguez-Moreno,

526 U.S 275, 119 S.Ct 1239, 143 L

Ed.2d 388 (1999), Jacinto Rodriguez-Moreno kidnapped a drug associate and took him from Texas to New Jersey, then to New York, and finally to Mary-land Rodriguez-Moreno was charged with, among other crimes, KIDNAPPING

and using and carrying a firearm in relation to a kidnapping, an act that violated 18 U.S.C.A § 924(c)(1) Sec-tion 924(c)(1) makes it a crime to use or carry a firearm during, and in relation to, any crime of violence

Rodriguez-Moreno was tried in New Jersey on the charges, even though he did not have a gun in New Jersey Rodriguez-Moreno, who did not want to be tried in New Jersey, argued that the statute did not allow the federal government to prosecute him for the

§ 924 crime in New Jersey because he did not commit the crime in that state The Court rejected the argument, holding that because the crime of violence (kidnapping) continued through several states, prosecution was proper in any district where the crime of violence was committed, even if the firearm was used

or carried in only one state The decision made it easier for federal prosecutors to pick and choose the venues for their cases

FURTHER READINGS

“Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes ”

1999 Prosecutor (March/April).

“Federalization of Crimes: NDAA’s Represen-tative Reports on ABA ’s Federalization Task Force ” 1999 Prosecutor (March/ April).

Gondles, James A 1999 “The Federalization

of Criminal Justice ” Corrections Today (April).

Little, Rory K 1995 “Myths and Principles of Federalization.” Hastings Law Journal (April).

CROSS REFERENCES Federal Courts; State Courts; States ’ Rights.

Clark v Arizona, 548 U.S 735, 126 S Ct 2709,

165 L Ed 2d 842 (2006) The case centered on

an Arizona law that, while affording criminal defendants the right to raise insanity as a defense, articulated a legal standard for insanity that encapsulated only half of the M’Naghten defense (A.R.S § 13-502[A]) Arizona’sINSANITY DEFENSE was stated solely in terms of the defendant’s capacity to tell whether a criminal act was right or wrong The act did not allow defendants to argue that they were insane because they failed to comprehend what they were doing while committing the act Eric Clark, who was convicted of first-degree murder

in an Arizona court, challenged the Arizona law, arguing that due process affords defendants the right to assert either prong of the M’Naghten defense against criminal charges brought by the state or federal government

In a 6–3 decision authored by JusticeDAVID SOUTER, the Court upheld the law.“[D]ue process imposes no single canonical formulation of legal insanity,” the Court observed In fact, the Court said that because a survey of state and federal defenses relating to cognitive incapacity shows such a wide and varied landscape,“it is clear that

no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.”

The defendant could point to no evidence that was excluded, the Court emphasized, including his expert and lay testimony regarding his delusions, which tended to support a description

of him as lacking the capacity to understand that the police officer was a human being And, the Court added, there was no doubt that the trial court considered the evidence as going to an issue of cognitive capacity So the defendant had hisDAY IN COURTand was able to fully present an insanity defense under existing Arizona law, the Court concluded

A number of states prefer the IRRESISTIBLE IMPULSEtest as the standard for determining the sanity of a criminal defendant If the defendant

is suffering from a mental disease that prevents control of personal conduct, he or she may be adjudged not guilty by reason of insanity, even if

he or she knows the difference between right and wrong

TheMODEL PENAL CODE of the American Law Institute established another test of insanity that has been adopted by almost all of the federal

courts and by numerous state legislatures Under the Model Penal Code test, a person is not responsible for criminal conduct if, at the time of such conduct, he or she lacks the capacity either to appreciate the criminality or the wrongfulness of the conduct or to conform his or her conduct to the requirement of law This lack-of-capacity excuse does not apply to abnormalities demonstrated by a repetitive pattern of illegal or violent acts

Some states employ the lack-of-substantial-capacity test The phrase “lacks substantial capacity” is a qualification of the M’Naghten rule and the irresistible-impulse test, both of which require the total absence of capacity This test also requires a showing of causality The defense is not established merely by a showing

of a mental disease; rather, it is established only

if, as a result of the disease, the defendant lacks the substantial capacity that is required in order

to hold him or her criminally responsible For example, pyromania may be a defense to a charge of arson, but it is no defense to a charge

of larceny An irresistible impulse arising from anger, jealousy, or a desire for revenge does not excuse a defendant from criminal responsibility unless such emotions are part of the mental disease that caused the crime

Generally, voluntary intoxication from drugs or alcohol does not excuse a criminal act Involuntary intoxication is, however, a valid defense It occurs when a person is forced to take an intoxicating substance against his or her will or does so by mistake If a defendant’s involuntary intoxicated condition causes a criminal act, the defendant will not be convicted

if, because of the intoxication, he or she was unable to appreciate the criminality of the conduct

Fair Warning Defense The due process clauses contained in the Fifth and Fourteenth Amendments to the U.S Constitution require that before a defendant may be prosecuted for criminal conduct, the law must make clear which conduct is criminal Justice Oliver Wendell Holmes articulated the standard when

he wrote that a criminal statute must give“fair warning… in language that the common world will understand, of what the law intends to do if

a certain line is passed To make the warning fair, so far as possible the line should be clear.” McBoyle v United States, 283 U.S 25, 27, 51 S

Ct 340, 341, 75 L Ed 816 (1931)

The U.S Supreme Court had the opportunity

to revisit the fair-warning requirement in United

States v Lanier, 520 U.S 259, 117 S Ct 1219, 137

L Ed 2d 432 (1997) The Court observed that

there are three manifestations of the“fair warning

requirement.” First, the “vagueness doctrine”

bars enforcement of statutes that either forbid

or require an act in terms that are so vague that

men of common intelligence must necessarily

guess at their meaning and differ as to their

application Second, the Court wrote that the

“canon of STRICT CONSTRUCTION of criminal

statutes” ensures fair warning by limiting

appli-cation of ambiguous criminal statutes to conduct

that is clearly covered Third, due process bars

courts from applying a novel construction of a

criminal statute to conduct that neither the

statute nor any prior judicial decision has fairly

disclosed to be within its scope In other words, a

trial court cannot clarify a statute by supplying

terms through its own interpretation of the law,

when those terms were not clearly contemplated

by the statutory language chosen by the

legisla-ture However, the Court emphasized, the due

process fair-warning requirement does not

re-quire that prohibited criminal conduct be

previously identified by one of its own decisions

and held to apply in a factual situation

“funda-mentally similar” to the defendant’s case at bar,

so long as the law gives“reasonable warning” that

certain conduct is forbidden

Exculpatory Defenses Exculpatory defenses are

factors that excuse a competent person from

liability for a criminal act Duress is an

exculpatory defense One who commits a crime

as a result of the pressure of an unlawful threat

of harm from another person is under duress

and may be excused from criminal liability At

trial, whether the defendant was under duress is

a QUESTION OF FACT for the judge or jury The

defense of duress was invoked in the 1976 trial

of Patricia Campbell Hearst, the daughter of

wealthy newspaper owners Randolph A Hearst

and Catherine C Hearst On February 4, 1974,

PATRICIA HEARSTwas kidnapped by the

Symbio-nese Liberation Army (SLA) and held for the

unusual ransom of food distribution to the

poor Shortly after the abduction, Hearst sent a

recorded message to her parents, in which she

announced that she had become a social

revolutionary

On April 15 Hearst participated in a bank

robbery with members of the SLA She was

arrested in September 1975 and tried for armed bank robbery At trial, Hearst’s lawyers argued,

in part, that Hearst’s participation in the robbery had been caused by duress Hearst testified that she had feared for her life as she had stood inside the Hibernia Bank On CROSS-EXAMINATION, Hearst invoked her FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION42 times The refusal

to answer so many prosecution questions might have damaged Hearst’s credibility, and the jury did not accept her argument of duress Hearst was convicted and sentenced to seven years in prison (President JIMMY CARTER commuted her sentence on February 1, 1979, and ordered her release from prison.)

Entrapment is another exculpatory defense

to criminal charges Entrapment exists if a law enforcement officer induces a person to commit

a crime, for the purpose of instituting a criminal prosecution against that person It is not available if law enforcement merely provides material for the crime

Mistakes of law or fact are seldom successful defenses Generally, aMISTAKE OF LAWis applica-ble only if the criminal statute was not published or made reasonably available prior

to the act; the accused reasonably relied on the contrary teaching of another statute or judicial decision; or, in some jurisdictions, the accused reasonably relied on contrary official advice or a contrary official interpretation A MISTAKE OF FACT may excuse a defendant if the mistake shows that the defendant lacked the state of mind required for the crime For example, in a specific-intent crime such as embezzlement, evidence that the accused was unaware of transfers into his or her own bank account would negate the specific criminal intent required for conviction

Justification defenses include necessity,SELF -DEFENSE, defense of others, and defense of property If a person acts to protect the life or health of another in a reasonable manner and with no other reasonable choice, that person may invoke the defense of necessity According

to the Model Penal Code, self-defense and defense of others are permissible when it reasonably appears necessary that force is required to defend against an aggressor’s imminent use of unlawful force Nondeadly force may be used in order to retain property, and DEADLY FORCEmay be used only to prevent serious bodily harm

Newly Recognized Defenses

When a court announces a decision that includes a new RULE OF LAW or a new interpretation of an existing rule of law, a question arises whether the new decision applies retroactively or only prospectively If it applies retroactively, previously convicted defendants may avail themselves of the new decision as grounds for an appeal or for a new trial in which they may raise the new rule as a defense (appeals would usually take the form of a COLLATERAL ATTACK, because the STATUTE OF LIMITATIONS for direct appeals will have passed for most incarcerated defendants) The U.S

Constitution neither requires nor prohibits retroactive application of a new decision, and the determination of whether a new rule of law

or new interpretation of an existing rule of law should be applied retroactively is generally a matter of judicial discretion

When the U.S Supreme Court announces a new rule of law or a new interpretation of an existing rule of law, the new rule or interpreta-tion may be applied retroactively in a federal collateral proceeding only if (1) the rule is substantive and not procedural; or, if it is procedural, then (2) the rule must be a

“watershed rule of criminal procedure,” that implicates fundamental fairness and the accuracy

of a criminal proceeding Whorton v Bockting,

549 U.S 406, 127 S Ct 1173, 167 L Ed 2d 1 (2007) A rule implicates“fundamental fairness and the accuracy of a criminal proceeding” when the rule is“necessary to prevent an impermissibly large risk of inaccurate conviction.” State Courts may give broader application to rules newly recognized by the U.S Supreme Court, as those state courts deem appropriate Danforth v

Minnesota, —U.S.— 128 S, Ct 1029, 169 L Ed

2d 859 (U.S 2008)

Merger

Under common law, when a person committed

a major crime that included a lesser offense, the latter merged with the former This meant that the accused could not be charged with both crimes The modern law of merger applies only

to solicitation and attempt One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime Likewise, a person who attempts and completes a crime may not be convicted of both the attempt and the completed crime

Civilian Criminal Law and Military Criminal Law

Because interference by civilian courts in military matters may undermine military order, discipline, uniformity, efficiency, and obedi-ence, the U.S military is governed by a system

of justice that is separate and distinct from the system of justice administered by civilian courts The UNIFORM CODE OF MILITARY JUSTICE (UCMJ), first enacted in 1950, is the principal body of laws that apply to members of the military Military tribunals interpret and enforce it Persons entering the Armed Forces of the United States agree to abide by the UCMJ, obey lawful orders, serve in combat as required, and accept any changes in status or benefits brought about by war or statutory amendments In return, the military branch agrees to provide members of the U.S armed forces with compensation, fairly enforce the UCMJ, and honor promises concerning assignment, educa-tion, compensaeduca-tion, and support of dependents Proceedings, findings, and judgments of military tribunals as approved, reviewed, or affirmed by higher military courts are typically final and conclusive, as are all dismissals, discharges, and other sentences carried out in furtherance of a COURT-MARTIAL Correction of errors made by a military tribunal is not for the civilian courts, but for the military authorities, which have the sole power of appellate review, except that decisions made by the Court of Appeals for the Armed Forces are subject to review by the U.S Supreme Court

The concurrent systems of justice for civil and military matters in the United States has been a source of frustration for those unfamiliar with them For example, after the Bush administration declared a war on terror after the attacks of September 11, 2001, more than

500 U.S military personnel were accused of abusing detainees held in Iraq, Afghanistan, and

at the U.S Naval facility at Guantanamo Bay, Cuba Yet those accusations resulted in fewer than 60 convictions, and the only officer prosecuted for the detainee abuse at the Abu Ghraib prison in Iraq, Lieutenant Colonel Steven L Jordan, was acquitted of all charges relating to his failure to properly train and supervise enlisted soldiers involved in detainee interrogations Legal observers in the United States and around the world questioned the legitimacy of these military proceedings,

suggesting that they were biased in favor of U.S.

military personnel

FURTHER READINGS

Clough, Jonathon, and Carmel Mulhern 1999 Criminal

Law Sydney: Butterworths.

Kaplan, John, and Robert Weisberg 1991 Criminal Law:

Cases and Materials 2d ed Boston: Little, Brown.

McMahon, Katherine E 1993 “Murder, Malice, and Mental

State: A Review of Recent Precedent Recognizing

Diminished Capacity, from Commonwealth v Grey to

Commonwealth v Sama.” Massachusetts Law Review

(June).

Singer, Richard G., and John Q La Fond 2007 Criminal

Law 4th ed New York, N.Y.: Aspen Publishers.

CROSS REFERENCES

Attempt; Conspiracy; Criminal Procedure; Diminished

Capacity; Insanity Defense; Intent; Juvenile Law; Military

Law; Motive.

CRIMINAL NEGLIGENCE

The failure to use reasonable care to avoid

consequences that threaten or harm the safety of

the public and that are the foreseeable outcome of

acting in a particular manner

Criminal negligence is a statutory offense

that arises primarily in situations involving the

death of an innocent party as a result of the

operation of a motor vehicle by a person who is

under the influence of DRUGS AND NARCOTICSor

alcohol Most statutes define such conduct as

criminally negligent homicide Unlike the tort

of NEGLIGENCE, in which the party who acted

wrongfully is liable for damages to the injured

party, a person who is convicted of criminal

negligence is subject to a fine, imprisonment, or

both, because of the status of the conduct as a

crime

CRIMINAL PROCEDURE

Criminal procedure is the framework of laws and

rules that govern the administration of justice in

cases involving an individual who has been

accused of a crime, beginning with the initial

investigation of the crime and concluding either

with the unconditional release of the accused by

virtue of acquittal (a judgment of not guilty) or by

the imposition of a term of punishment pursuant

to a conviction for the crime

Introduction

Criminal procedures are safeguards against the

indiscriminate application of criminal laws and

the wanton treatment of suspected criminals

Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals

The main constitutional provisions regard-ing criminal procedure can be found in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S Constitution The FOURTH AMENDMENT covers the right to be free from unreasonable searches and arrests:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things

to be seized

A warrant is a paper that shows judicial approval of a search or arrest The U.S Supreme Court has held that the Fourth Amendment does not require a warrant for all searches;

rather, it prohibits unreasonable searches All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court

The FIFTH AMENDMENT covers an array of procedural concerns, including the death pen-alty, multiple trials for the same criminal offense (DOUBLE JEOPARDY), SELF-INCRIMINATION, and the general right to due process It reads, in relevant part,

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of aGRAND JURY… nor shall any person be subject for the same offence to be twice put in jeopardy

ofLIFE OR LIMB; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

The SIXTH AMENDMENT addresses the proce-dures required at trial It provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have COMPULSORY

PROCESSfor obtaining witnesses in his favor, and to have the AssistanceOF COUNSELfor his defense

Finally, the EIGHTH AMENDMENT states: “Ex-cessive bail shall not be required, nor ex“Ex-cessive fines imposed, nor cruel and unusual punish-ments inflicted.”

At first, these amendments were construed

as applying only to federal prosecutions The states were free to enact criminal procedures contrary to them until the passage of the FOURTEENTH AMENDMENTin 1868 The Fourteenth Amendment forbids the states to “deprive any person of life, liberty, or property, without due process of law” (§ 1) Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments

Federal courts must comply with all the criminal procedures listed in the amendments

to the Constitution For state courts, the U.S

Supreme Court has adopted a“selective incor-poration” approach to determine precisely what process is due a criminal DEFENDANT Under this approach, only fundamental rights are protected

According to the Court, fundamental rights

in criminal procedure include freedom from unreasonable searches and seizures; freedom fromCRUEL AND UNUSUAL PUNISHMENT; assistance

of counsel; protection against self-incrimina-tion; confrontation of opposing witnesses; a SPEEDY TRIAL; compulsory process for obtaining witnesses; a jury trial for prosecutions for cases

in which the defendant could be incarcerated;

and protection against double jeopardy The only protections that are not specifically re-quired of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes

be prosecuted by grand jury

The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures

Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own crimi-nal procedures, and procedures vary from state

to state State and federal governments may not limit the protections guaranteed by the Consti-tution, but they may expand them

Automobile Exception to the Warrant Requirement

An example of this principle may be seen with the so-called automobile exception to the Constitution’s search-warrant requirement Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime The U.S Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a“reduced expectation of privacy” and because a vehicle is inherently mobile This reduced expectation of privacy also allows police officers with probable cause to search a car in order to inspect drivers’ and passengers’ belong-ings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise (Wyoming v Houghton, 526 U.S 295,

119 S Ct 1297, 143 L Ed 2d 408 [1999]) However, states are not required to adopt the automobile exception The New Hampshire Supreme Court, for example, ruled that all warrantless searches are unreasonable except for

a group of well-defined such searches, and this group does not include warrantless AUTOMOBILE SEARCHES (State v Sterndale, 139 N.H 445, 656 A.2d 409 [1995]) Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle New Hampshire, therefore, provides expanded pro-tections under the Fourth Amendment Conversely, a state may not allow the search

of any vehicle without reasonable suspicion A vehicle search that is conducted in the absence

of reasonable suspicion would be an infringe-ment of guaranteed Fourth Amendinfringe-ment pro-tection, and a court would strike down such an infringement as unconstitutional A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of

an entire vehicle following a traffic stop in which the driver is issued a citation for speeding Although law enforcement may conduct a full vehicle search if the defendant

is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search (Knowles v Iowa, 525 U.S 113, 119 S Ct 484, 142 L Ed 2d

492 [1998])

Criminal prosecutions officially begin with an

arrest However, even before the arrest, the

law protects the defendant against

unconstitu-tional police tactics The Fourth Amendment

protects persons against unreasonable searches

and seizures by law enforcement officers

Generally, a SEARCH WARRANT is required before

an officer may search a person or place, although

police officers may lawfully prevent a criminal

suspect from entering his or her home while they

obtain a search warrant (Illinois v McArthur,

U.S 326, 121 S Ct 946, 148 L Ed 2d 838 [2001])

Police officers need no justification under

the Fourth Amendment to stop persons on the

street and ask questions, and persons who are

stopped for questioning are completely free to

refuse to answer any such questions and to go

about their business But the Fourth

Amend-ment does prohibit police officers from

detain-ing pedestrians and conductdetain-ing any kind of

search of their clothing without first having a

reasonable and articulable suspicion that the

pedestrians are engaged in criminal activity

The U.S Supreme Court has held that

reason-able suspicion is provided for a stop-and-frisk

type of search when a pedestrian who, upon

seeing police officers patrolling the streets in an

area known for heavy narcotics trafficking, flees

from the officers on foot (Illinois v Wardlow,

528 U.S 119, 120 S Ct 673, 145 L Ed 2d

570 [2000])

The warrant requirement is waived for

many other searches and seizures as well,

including a search incident to a lawful arrest;

a seizure of items in plain view; a search to

which the suspect consents; a search after aHOT

PURSUIT; and a search under exigent or

emer-gency circumstances Nor does the Fourth

Amendment require the police to obtain a

warrant before seizing an automobile from a

public place when they have probable cause to

believe that the vehicle is forfeitable contraband

(Florida v White, 526 U.S 559, 119 S Ct 1555,

143 L Ed 2d 748 [1999])

However, the Fourth Amendment does

prohibit police use of a thermal-imaging device

aimed at a private home from a public street to

detect relative amounts of heat within the

home Such devices are typically employed to

determine whether a suspect is using a

high-intensity lamp to grow marijuana in his or her

home The U.S Supreme Court has ruled that

the use of thermal-imaging devices constitutes a search within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant (Kyllo v United States, 533 U.S 27, 121 S Ct 2038, 150 L Ed 2d

94 [2001])

The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsen-sual urine testing of pregnant women who had manifested symptoms of possible cocaine use

The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official noncon-sensual search is unconstitutional if not autho-rized by a valid search warrant (Ferguson v City

of Charleston, 532 U.S 67, 121 S Ct 1281, 149

L Ed 2d 205 [2001])

The U.S Supreme Court’s Fourth Amend-ment jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspi-cionless vehicle seizures The Court has held that the Fourth Amendment allows law en-forcement to perform warrantless vehicle sei-zures at a fixed checkpoint along the nation’s border to intercept illegal aliens, so long as the search is reasonable in light of the “totality of the circumstances.” United States v Arvizu, 534 U.S 266, 122 S Ct 744, 151 L Ed 2d 740 (2002) The Court also ruled that roadblocks may be used to intercept drunk drivers

However, the Court rejected on Fourth Amend-ment grounds the use of a roadblock to perform warrantless and suspicionless searches of auto-mobiles for the purpose of drug interdiction (Indianapolis v Edmond, 531 U.S 32, 121 S Ct

447, 148 L Ed 2d 333 [2000])

When an officer seeks a search warrant, he

or she must present evidence to a judge or magistrate The evidence must be sufficient to establish probable cause that evidence of a crime will be found at the place to be searched

Probable cause is a level of belief beyond mere suspicion but short of full certainty Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case

For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person’s home

However, if the person is discovered with a large amount of marijuana, the quantity may support