CRIMINAL LAW AND PROCEDURE

CHAPTER 7 CRIMINAL LAW AND PROCEDURE SUMMARY OF KEY CONCEPTS Section 1. The Nature of Criminal Law For most crimes, there is only one plaintiff, but at least two victims. The plaintiff is always the people. The first victim is the individual directly harmed by the crime. But, by definition, society at large is a victim, also. That is why crimes are prosecuted in the name of the people, rather than in the name of the individual victim. Of course, that first victim can bring a civil suit against the alleged criminal, as well. Criminal law is distinguished also by the penalties which can be imposed: fines, imprisonment, or death. Conviction of a serious crime, a felony, often imposes life-long disqualification for public office, and in many jurisdictions convicted felons may not even vote. The standard of proof in criminal court is much higher than in civil proof beyond a reasonable doubt. Finally, because the penalties are so severe, the standards for due process are higher in criminal cases. All crimes involve a forbidden act, or a forbidden refusal to act. Most crimes also must have a criminal intent (mens rea), but there are crimes which do not require that specific criminal intent. For an act to be criminal, it must be voluntary. That is because a criminal act committed under threat of harm does not have genuine criminal intent, mens rea, since the motive is self-preservation, not harm to others. A general intent is present when the person willfully commits the forbidden act, without intent to harm some other person. Drunk driving is committed with general intent. Specific intent requires that the criminal intend the harm which results. Arson is committed with specific intent. Some jurisdictions impute specific intent to people who willfully violate the criminal laws with reckless disregard or indifference to the harm likely to result. Thus, drunk drivers sometimes are charged with second degree murder rather than manslaughter. Many crimes fall in the category of strict liability. These crimes do not require that actual harm result it is enough that the person commits the forbidden act. Most traffic law violations fall in this category. So, too, does attempted murder. The purpose of strict liability is to deter conduct that has the potential for great harm. Many crimes, however, do not fall under strict liability. The prosecutor must show that a forbidden act was committed and that harm resulted. For these offenses, the bumbling would-be-criminal cannot be punished. An inchoate crime is one which is attempted, but fails to carry through to its intended purpose. Attempted murder, solicitation for prostitution, and conspiracies to commit crimes which never occur fall in the category of inchoate crimes. 163

164 CHAPTER 7 Criminal Law and Procedure These are punished because society has a powerful interest in deterring conduct undertaken with criminal intent before it succeeds in its purpose. Whenever attempted crimes are not themselves a crime, police are powerless to intervene until the criminal has achieved his purpose. Because people acting in concert can cause more harm than one individual acting alone, conspiracies to commit crimes are held to strict criminal liability. Each co-conspirator is equally guilty of the conspiracy, regardless of which of them would be the principal actor in the ultimate crime. However, to be guilty, each of them must have specific intent to enter into the conspiracy and to cause the commission of the ultimate crime they have planned. A related concept is vicarious liability. The general rule is that one is criminally liable only for his own actions. However, when one intentionally contributes toward another person s criminal act, he might share criminal liability for that other person s action. The best known form of vicarious liability is being an accessory to a crime. Ordinarily, there is no crime in lying about the whereabouts of another person. However, if that lie is told so that the other person can escape responsibility for his crimes, the liar becomes an accessory to the fugitive s crimes. Another common form of vicarious liability is the criminal culpability of a corporation for the acts of its executives. Although a corporation cannot be imprisoned, only fined, criminal liability gives the government additional leverage for reforming the corporate conduct. A similar vicarious liability exists when criminals acting in concert are held responsible for the acts of their co-felons. For example, this occurs in felony murder cases, where only one bank robber does the actual killing but all of her co-felons are charged with murder. The theory is that, without their mutual participation in the robbery, the murder would not have occurred. There has been a long tradition of punishing habitual offenders more severely than one who has seldom been in trouble with the law. That tradition has been strengthened in recent years with the passage of three-strike laws in some states. Typically, these laws provide that the third felony conviction carries a mandatory prison term of exceptional length perhaps life. The true effect of these laws is to deprive the courts of their usual discretion in determining an appropriate sentence. In medieval England, criminal law developed in much the same way as civil law, from the decisions of noble lords sitting in judgment of lesser nobles, merchants, peasants, and serfs. The offender was sometimes adjudged to have offended the lord s authority, or the Crown s peace. With the development of a court system and appointed judges, those decisions on criminal law became part of the common law of the land. Punishments (including death or dismemberment) were imposed for crimes under the common law, as well as for those prohibited by royal decree. Today, statutory law has almost completely replaced common law crimes, but in some jurisdictions, criminal contempt of court survives as a common law offense. Common law crimes placed great discretion in the hands of judges because there were no clearly stated definitions of crimes, nor any uniform standards for punishment. The advantage of statutory definitions is the consistency which they bring to punishment and the opportunity to know quite clearly what behavior is prohibited. Of course, there is also less excuse legally, no excuse for ignorance of the law. That is not to say that all criminal prohibitions are clear and easily understood. But statutory criminal law is a great advance over criminal common law. The ambiguity sometimes found in criminal statutes can result from poor drafting, but often it results from the attempt to prohibit a broad range of activities that are difficult to describe with precision. For example, many communities still have ordinances which prohibit vagrancy, sometimes defined as lacking a fixed place of residence or visible means of support. Most of these statutes are probably unconstitutional for vagueness. A statute is unconstitutionally vague when the acts prohibited by it are not clearly defined, and a person cannot know with reasonable certainty what is prohibited. Punishing a person for acts that she cannot know are prohibited is a denial of due process of law. Vague statutes also tend to encourage arbitrary and discriminatory enforcement by police officers and prosecutors. The most fundamental defense to any criminal charge is the defendant s plea of not guilty. That plea imposes upon the prosecution the entire burden of proof for each element of the crime charged. The defendant need not prove a thing to be found innocent innocence is presumed. If the prosecution fails to prove its case, the defendant walks free. Of course, even innocent persons often appear to be guilty. This can happen when the victim of a crime identifies the defendant from a line-up. In spite of the notorious unreliability of eye-witness identifications, such a defendant finds that the presumption of his innocence is easily overcome, and he must put on a defense case to convince the court or jury of his innocence. However, the judge or jury must view the evidence in the light most favorable to the accused. If the evidence allows any

STUDY GUIDE 165 reasonable interpretation inconsistent with guilt, the presumption of innocence requires a verdict of not guilty. As in civil litigation, there are affirmative defenses that the criminal defendant can raise. An affirmative defense admits the acts alleged, but attacks the legal basis for holding the defendant criminally responsible. An affirmative defense says, in effect, I shot the sheriff, but it was no crime under the circumstances. Common affirmative defenses include: self-defense; incompetency; entrapment; and, coercion or necessity. Incompetency is the claim that the defendant was mentally incapable of forming the necessary mens rea, or criminal intent. It may be based upon age (usually, under seven years), intellectual deficiency, legal insanity, or diminished capacity. Syndrome defenses (e.g., battered spouse syndrome) fall into the latter category. Legal insanity is not identical to a psychiatric diagnosis of mental illness although the latter might aid in establishing the legal basis for an insanity plea. The underlying concepts for the affirmative defense of legal insanity are: Criminal penalties are incapable of deterring the insane from committing criminal acts. Insane persons cannot understand the reasons for the criminal penalties they would receive. Society receives no benefit from applying criminal law to insane behavior. Each of the above concepts applies, for example, if a person truly believes that he hears the voice of God commanding him to kill a famous person. Legal insanity might be temporary, existing briefly when the crime occurs, or it can be on-going and apparently permanent. In addition, a person who was sane at the time of the crime might be found incapable, by reason of insanity, to stand trial afterward. It is an unconstitutional denial of due process for a person to be put on trial without the ability to understand the proceedings and participate in his own defense. In some jurisdictions, insanity means that the defendant does not understand the nature of his act or the difference between right and wrong. The law of these jurisdictions is based upon some variation of the nineteenth century M Naghten Rule. Some jurisdictions have modified that rule to include irresistible impulse resulting from mental illness, even if the defendant understood his actions and the difference between right and wrong. The very controversial syndrome defenses are variations on the irresistible impulse concept and diminished capacity. Diminished capacity is the inability to form specific criminal intent, due to mental illness, intoxication, or emotional trauma. Although not relieving the defendant from all criminal liability, as legal insanity would, diminished capacity reduces that liability in proportion to the diminishment. Entrapment is the inducement by a police officer to commit a criminal act which otherwise would not occur, and the subsequent prosecution of the criminal for committing that solicited act. Entrapment is an effective defense because it claims: the intention to commit the crime did not arise until it was suggested by the police officer; the crime would not have occurred if the police officer had not suggested it; and, it violates public policy to encourage crimes and thereby convert otherwise law-abiding citizens into criminals. If a defendant can establish that entrapment occurred, the court will dismiss the charges. Judges and jurors are required to accept any reasonable interpretation of the evidence that suggests innocence because that inevitably raises a reasonable doubt about guilt. So, in some circumstances, it can be easier for the defendant to establish possible entrapment than for the prosecution to establish the defendant s independent criminal intent. As with any defense, entrapment does not require proof beyond a reasonable doubt. A hostage with a gun at his head does not have criminal intent when his captor says, Shoot the sheriff, or I ll blow your brains out! The law does not require one to sacrifice his own life to preserve the life of another. There is no benefit to society in imposing such a duty. Those who refused to shoot the sheriff would most likely act out of moral revulsion, not because there was a legal duty. A defense similar to coercion is necessity. That describes the situation of the ill-prepared hiker seeking refuge in a cabin from sub-freezing temperatures. Criminal offenses are generally categorized into felonies, misdemeanors, and infractions. All three may be punished by fines, but they differ in the degree of personal confinement that may be imposed. Criminal statutes usually identify the degree of an offense. If not, the maximum penalty provided

166 CHAPTER 7 Criminal Law and Procedure determines the category of the offense. Sometimes, a statute permits an offense to be charged as either a felony or a misdemeanor at the discretion of the prosecutor. If a statute authorizes a broad range of confinement (e.g., six months to ten years), the penalty actually imposed by the court determines whether the offense is a felony or a misdemeanor. In most jurisdictions, a felony is punishable by one year or more in prison, or by death. Misdemeanors are punishable by sentences of one year or less (often in a county jail). A fine may be imposed in lieu of confinement for a felony or misdemeanor, if the statute permits. Infractions are minor offenses (or civil offenses) for which the only authorized punishment is a fine. In addition to minor infractions, there are many non-criminal civil offenses that can be punished by fines or the revocation of some privilege granted by government (such as a license). The disbarment of an attorney normally occurs in civil proceedings, not criminal. An exception to the no-confinement rule for civil offenses can occur in cases of civil contempt of court. A court can compel a reluctant witness to sit in a jail cell until the witness purges herself of the contempt charge by answering the questions posed by a court or grand jury. Civil offenses generally require no more than proof by a preponderance of the evidence, but criminal offenses must be proved beyond a reasonable doubt. Criminal proceedings also require a higher standard of due process for the defendant. These differences sometimes cause the government to bring civil charges rather than criminal charges. There are two kinds of juries in the criminal justice system trial juries and grand juries. Trial juries usually have between six and twelve jurors, with twelve most common for criminal matters. In criminal cases, most states require a unanimous verdict. Most Americans are familiar with the trial jury, either from personal jury service or from movies and television. Grand juries were originally established to restrain unwarranted prosecution. Before a prosecutor could bring a defendant to trial, he had to obtain a grand jury indictment against that defendant. The Fifth Amendment requires a grand jury indictment for all serious federal offenses. State requirements differ from one jurisdiction to another. Grand juries usually comprise between twelve and twenty-three citizens. In modern practice, most grand juries tend to be under the substantial influence of the prosecuting attorney, and they can be powerful tools in his hands. In most jurisdictions, grand jurors hear only those witnesses selected by the prosecutor. There is no cross-examination of the witnesses. Witnesses are not allowed to bring their attorney into the grand jury room. The accused is not present, unless to testify. Grand jury indictments are sometimes issued in secret, without the accused s knowledge that he is under any suspicion. In addition to indictment by a grand jury, a suspect may be charged in a prosecutor s written information the criminal equivalent of a civil complaint. Some jurisdictions require a preliminary hearing in court following the prosecutor s information or grand jury indictment. However, any accusatory procedures which provide due process of law are constitutional. Section 2. Due Process in Criminal Procedure Due process is a controversial issue in criminal law. Many feel that criminals receive more consideration from the criminal justice system than do their victims. Attorneys who represent criminal defendants are sometimes the targets of public and political criticism. Every candidate for judge feels that he must run on a tough against crime platform, even in these decades of falling crime rates. Any paralegal contemplating a practice in criminal defense should consider the stress that this public controversy can induce. It is important to remember that attorneys represent persons accused of crimes. It is the responsibility of the court system to determine whether the accused is, indeed, a criminal. If not for a court system and due process, any one of us could send our enemies to jail by making plausible accusations against them. Just as there is no doubt that innocent persons sometimes go to prison, it is certain that some of them were defended by attorneys who thought them to be guilty. The practice of criminal law carries an awesome responsibility. Due process was not the invention of the Supreme Court it was the firmly held conviction of our nation s Founding Fathers, who were neither career criminals nor criminal defense lawyers. They expanded upon the very limited due process then provided under English law. Due process rights were included in the Fifth Amendment because the Founding Fathers had observed pervasive abuses by British police, prosecutors, and courts. For more than a century, due process rights for defendants did not create serious obstacles to prosecution and punishment because the Fifth Amendment applied only to the federal government. Some state constitutions had their own due process clauses, but in practice those protections were not

STUDY GUIDE 167 strictly enforced by the courts. It was the addition of the Fourteenth Amendment in 1868 which finally required the states to accord due process of law:... [N]or shall any State deprive any person of life, liberty or property, without due process of law.... When interpreting that provision, the Supreme Court has looked to other procedural rights found in the first ten amendments to the Constitution. In its more recent decisions, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment incorporates any right that is both fundamental and essential to the concept of ordered liberty. These include: no unreasonable search and seizure; no double jeopardy; no compulsory self-incrimination; the right to a speedy and public trial; the right to trial by an impartial jury; the right to notice of all accusations; the right to confront witnesses; the right to subpoena witnesses; the right to assistance of legal counsel; no excessive bail or fines; and, no cruel and unusual punishment. The only procedural protections under the Bill of Rights which have not been incorporated under the Fourteenth Amendment s Due Process Clause are: jury trials in civil cases; and, indictment by grand jury for all serious crimes. In addition, the right to a twelve person jury in federal trials (under the Sixth Amendment) has not been extended to the states under the Fourteenth Amendment, and some states continue to use smaller juries for misdemeanors. State constitutions may add other protections, but they may not reduce those provided by the Fourteenth Amendment. The best known statement of criminal due process is found in the Miranda Warning. However, this warning focuses upon the right against selfincrimination and the right to assistance of legal counsel. The Miranda Warning does not validate an arrest it only makes useable in court any statements made by the accused after receiving the warning. The Miranda Warning is based upon the Supreme Court s decision in Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Court faced two important questions: Is a statement made by an arrestee who is ignorant of his right to remain silent and his right to have legal counsel a voluntary statement under constitutional standards? If such a statement fails the constitutional test, should it be excluded as evidence at trial? The Supreme Court answered No to the first question and Yes to the second. The Court then took the unusual step of spelling out the actual content of a warning which, if given to the accused, would make later statements admissible. Within two years after the Miranda decision, Congress enacted a statute meant to override that decision in federal court proceedings. Believing this statute to be unconstitutional, both Republican and Democratic administrations refused to implement it. Finally, in 1999, a frustrated Fourth Circuit Court of Appeals insisted upon considering the statute on its own initiative in a case before it, and held that the Miranda Warning is not a constitutional requirement. The Supreme Court then took up that case and issued its ruling in the year 2000: We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Dickerson v. United States, U.S., 120 S.Ct. 2326 (2000) The Double Jeopardy Clause of the Fifth Amendment states:... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.... The courts have interpreted this clause to prohibit two prosecutorial abuses: a second prosecution following an acquittal for the identical offense; and, a second prosecution following conviction for the identical offense. Once a valid trial has been completed, or when the conduct of the prosecution or the court has invalidated a trial in progress, the protection against double jeopardy becomes absolutely effective. A subsequent prosecution is not barred by an appellate court s reversal of a completed trial in which the defendant was convicted.

168 CHAPTER 7 Criminal Law and Procedure When a mistrial is declared, no valid trial has occurred. Consequently, a defendant can stand trial for three or four times if each jury deadlocks. A mistrial bars a subsequent prosecution only when: the mistrial results from prosecutorial misconduct; or, the mistrial results from serious error by the court. Juror misconduct does not bar a subsequent trial, since the court cannot prevent it. The double jeopardy rule does not bar multiple prosecutions for multiple crimes. This issue usually arises when a single action violates both state and federal law. If convicted in both jurisdictions, a defendant could be sentenced to prison in both state and federal penitentiaries. The Fifth Amendment states, in part, that no person... shall be compelled, in any criminal case, to be a witness against himself. The courts have held that this protection applies to any governmental proceeding in which a person is compelled to testify, not just to testimony by a defendant during a criminal trial. Self-incrimination does not require an actual confession. It means self-implication in criminal conduct. It is not unusual for a judge to hear testimony in camera (i.e., privately and in chambers) before ruling upon the right to a Fifth Amendment privilege. Fingerprints, body tissue, and fluids are not considered to be testimony, and cannot be withheld under the Fifth Amendment, nor can voice and writing samples be withheld. Sometimes, a government agency (e.g., a committee in Congress) will grant immunity from prosecution so that the Fifth Amendment privilege cannot be claimed. Transactional immunity prevents any prosecution whatsoever for the crime in question. Use immunity permits prosecution, but excludes the compelled testimony from being used as evidence. In addition, the prosecutor might have to show that the other evidence he presents was not uncovered through information in the compelled testimony. The Sixth Amendment gives the accused the right to confront witnesses against him. That means that the accused may cross-examine and otherwise impeach the reliability of adverse witnesses. Part of this process is the calling of other witnesses whose testimony will be favorable to the accused, or will demonstrate a bias on the part of the prosecution witness. The right to legal counsel in federal court is guaranteed by the Sixth Amendment. In state court, that right is protected by the Due Process Clause of the Fourteenth Amendment. The Supreme Court has adopted a broad interpretation of this right to legal counsel, holding that it applies during: custodial interrogations; arraignments; preliminary hearings; trial; and, sentencing. If the accused cannot afford an attorney, the court rulings require that the government provide one at public expense. Virtually all levels of government have established public defender offices to meet this need. The right to counsel requires that the legal representation be at least minimally adequate. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court ruled that a defendant s right to choose his counsel overrides any constitutional imperative for competent representation. Consequently, a criminal defendant may reject the assistance of a public defender and conduct his own defense. Having done that, however, he may not obtain reversal on the grounds of incompetent representation. As the Miranda case (Miranda v. Arizona, supra) and the Supreme Court s reconsideration of that holding in Dickerson v. United States, supra, have shown, there is a continuing controversy over the exclusion of evidence obtained by unconstitutional means. It is the exclusion of such evidence which gives actual teeth to the procedural rights of the accused person. Without the Exclusionary Rule, the protections against unreasonable searches or coerced confessions would be hollow and meaningless. Yet many people are troubled by the idea that the criminal might go free because the police officer violated his due process rights. The theory behind the Exclusionary Rule is that police officers are not often prosecuted or disciplined for violating the privacy and due process rights of suspects. If the police officers are not subject to effective discipline, only their personal integrity can restrain them from violating the constitutional rights of suspects. As recent history has shown, the zeal for apprehension and conviction of criminals can too often override the officers concerns for the Constitution. In Mapp v. Ohio, 367 U.S. 643 (1961), Justice Tom Clark observed that states without their own exclusionary rule had been unable to establish any effective way to limit unreasonable searches. It was in Mapp that the Supreme Court first applied the Exclusionary Rule to state court proceedings. Each term of the Supreme Court brings new cases attempting to expand or limit the scope of the

STUDY GUIDE 169 Exclusionary Rule. Most of these cases rest upon the Court s interpretation of the Fourth Amendment: 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. Compared to other amendments in the Bill of Rights, the Fourth Amendment is unusual in its detail. The amendment forbids unreasonable searches, and that usually is the crux of modern cases coming before the Supreme Court. In spite of its explicit proscription, the Fourth Amendment protection has been qualified to a remarkable degree by the Court. Section 3. Criminal Law Procedures Detention and arrest are procedural issues closely related to the Exclusionary Rule. The police officer s right to conduct a search often hinges upon the question of custody, or freedom to leave, of the suspect. The line between detention and arrest is not always clear, since an arrest need not be formalized by an oral announcement or physical restraint. An arrest occurs when an officer, believing that a crime has been committed, uses her legal authority to deprive a suspect of his liberty to go on his way. A detention occurs when an officer stops a person for a brief inquiry, based upon a reasonable suspicion that a crime has been committed or is imminent. The definition of a reasonable suspicion is a difficult one for the courts to define, and an officer in the field often must rely upon his best judgment and hope that it withstands scrutiny in court. In some jurisdictions, an officer may arrest a suspect for a misdemeanor only if the crime is committed in the presence of the officer. In those jurisdictions, a citizen s arrest becomes important, since the officer may take custody of a suspect already arrested by a citizen. Citizens and police officers alike can be liable for false arrest if they act without probable cause to believe the arrested person has committed a crime. An arrest can be accomplished by telling the suspect he is under arrest, or it may be accomplished by directing the suspect to accompany the officer to another location under circumstances indicating that the person is not free to leave. Applying physical restraints (e.g., handcuffs) or confining a person in a room or patrol car also indicates that an arrest has been made. Suspects are usually booked following an arrest for a misdemeanor or felony. Booking involves making a written record of the arrest at a police station or jail, and fingerprints and photographs are usually taken at that time. After booking, the suspect might be released on bail or his own recognizance. Some arrests are made by executing a court s warrant for arrest. This happens when a grand jury has returned an indictment, but also occurs when police officers or prosecutors present sworn affidavits showing probable cause to believe that a suspect has committed a crime. A court may issue a bench warrant for the arrest of a person who fails to appear in court as ordered. Anyone arrested and not released within twenty-four to seventy-two hours (depending upon jurisdiction) must be brought before a court for a bail hearing. This hearing is sometimes known as a first appearance. The Eighth Amendment prohibits excessive bail, but courts actually have a very wide latitude within which they can set bail. In unusual circumstances, bail in excess of one million dollars is not unknown. Persons accused of capital crimes generally are not permitted to post bail and must remain in custody. Anyone who is considered a flight risk may also be denied bail. Following an indictment or prosecutor s information, the defendant is arraigned. At this time he is informed of the formal charges against him. If he cannot afford to hire a lawyer, the court will appoint one for him. If already represented by counsel, the defendant may enter a plea at this time. At any appropriate time, the court may enter a not guilty plea on behalf of the defendant. A controversial aspect of criminal justice is the use of plea bargaining. The defendant pleads guilty, usually to a lessor offense or in exchange for a lighter-than-expected sentence. The plea bargain ensures criminal accountability, and usually some punishment, while avoiding the uncertain outcome of a trial. Plea bargains must be approved by the court, but it is unusual for a court to reject them. Prosecutor s heavy case loads and crowded court calendars also encourage plea bargains. Critics of the practice usually complain that criminals get off too easily, but public defenders believe that some innocent clients plead guilty because they are terrified of the long prison sentences prosecutors are seeking. Preliminary hearings are used primarily for felony cases. The hearings are held in court, without a jury. If the evidence is sufficient to show probable cause to believe the accused committed

170 CHAPTER 7 Criminal Law and Procedure the crime, the court then binds the defendant over for trial. In effect, the preliminary hearing either confirms or rejects the grand jury indictment or prosecutor s information. Similar to civil litigation, the government and the defendant have a mutual right of pretrial discovery. However, this right is far more limited in criminal law and varies widely among the states. In most jurisdictions, the defense must inform the prosecution and the court if it intends to use an affirmative defense, such as self-defense or insanity. The prosecution must disclose to the defense counsel any exculpatory evidence he requests. When a criminal case has been set for trial, the defense and the prosecution may present motions regarding the conduct of the trial. These are very similar to pretrial motions in civil litigation. Common pretrial motions include: motions to suppress evidence; motion for severance of the trials of codefendants; and, motion for change of venue. The great majority of criminal cases never go to trial. Either the case is dismissed, or the defendant pleads guilty. In three-strike jurisdictions, however, increasing numbers of defendants are demanding a trial even for second offenses. The conduct of a criminal trial is very similar to civil litigation. The major difference is the greater burden of proof. Another difference is the court s authority to set aside a jury verdict. In a criminal trial, a verdict of guilty may be set aside by the court, but a verdict of not guilty may not. If a defendant pleads guilty or no contest, or is convicted, the court usually sets a later date for sentencing. There might be a pre-sentencing hearing at which time evidence is presented to guide the court in imposing a sentence. The prosecutor will make a recommendation for sentencing, and the court usually receives a recommendation from probation authorities who have evaluated the defendant s prospects for rehabilitation. Whatever sentence is imposed, it must conform to the statutory sentencing standards. A court may impose a suspended sentence, which allows the defendant to remain free on probation. If he violates the conditions for probation, then the suspended sentence will be imposed. Because of the Double Jeopardy Rule, the prosecution may not appeal a verdict of not guilty. Only the defendant may appeal a verdict. The prosecution may appeal, however: a pre-verdict dismissal of the case; a post-verdict reversal of the conviction; or, the sentence imposed by the court. Any appeal from the judgment of the court must be appealed promptly, or be lost forever. As in civil cases, the appellate court reviews questions of law and procedure, but not the merits of the evidence. Even many years after being sentenced to prison, a convict can petition for a writ of habeas corpus. This petition attacks the legal basis for a person s detention. Writs are available in both state and federal courts. If granted, the writ commands the custodian of the prisoner to deliver him to the court to consider whether just cause exists for his detention. Habeas corpus proceedings have been the vehicle for releasing prisoners whose innocence has been established by newly available DNA analysis. REVIEW QUESTIONS 1. For most crimes, the law requires that an accused had intent (mens rea) when he committed the prohibited act. 2. One who commits the prohibited act for his own pleasure without intending specific harm to anyone else, but with reckless disregard for the possible harm to others, has intent to violate the law. 3. When the accused s actions demonstrate an intent to cause the specific, actual harm that results, he has intent to violate the law. 4. Many crimes fall within the category of liability, and do not require that actual harm results from the illegal act. 5. When two or more persons agree to a joint effort to commit a crime, they commit the crime of. 6. Responsibility for the crimes of others is known as criminal liability. The most familiar example is acting as an to someone else s crime. 7. Today, statutory criminal law has almost completely replaced law crimes. 8. A statute is unconstitutionally when the prohibited acts are not clearly defined. 9. An defense admits the acts alleged, but attacks the legal basis for holding the defendant criminally liable. 10. Legal is not the same as a psychiatric diagnosis of mental illness. 11. The inability to form specific criminal intent, due to mental illness, intoxication, delirium, or emotional trauma is known as capacity.

STUDY GUIDE 171 12. The affirmative defense of entrapment alleges that: The intention to commit a crime never entered into the defendant s mind until the suggested that he commit the crime. The crime would not have occurred but for the police officer s. 13. A felony is punishable by or more in prison, by fine, or by death. 14. The penalty for a misdemeanor is typically or less in confinement, or a fine. 15. are minor criminal offenses, punishable by fine only. 16. A (commonly called a ticket ) is issued for infractions. 17. The standard of proof for criminal cases requires evidence that convinces a reasonable and prudent person to believe, to a certainty, that the accused committed the crime as charged. 18. A petit jury is commonly known as a jury. 19. The presumption of innocence means that the burden of proof lies with the. 20. If the evidence allows any reasonable interpretation inconsistent with guilt, the legal presumption of innocence requires a verdict of. 21. Not until the was added, did the U.S. Constitution require the states to provide due process of law. 22. The Supreme Court has held that the Clause incorporates any right that is both fundamental and essential to the concept of ordered liberty. 23. The Supreme Court has held that each of the following procedural protections under the Bill of Rights are also valid against the states under the Fourteenth Amendment: no search and seizure; no jeopardy; no compulsory ; right to a speedy and trial; right to trial by an jury; right to notice of all ; right to confront ; right to witnesses for the defendant s case; right to assistance of ; no excessive bail or ; and, no cruel and punishment. 24. The Warning focuses on the Fifth Amendment right against compulsory selfincrimination. 25. Once a valid trial has been completed, or when the improper conduct of the prosecutor or the court has invalidated a trial already in progress, the protection against jeopardy becomes absolutely effective. 26. The most common form of occurs when the jury is unable to reach a unanimous verdict. A jury that is hopelessly deadlocked is known as a jury. 27. Self-incrimination means self- in criminal conduct anything one does or says from which a natural inference could be drawn that one was criminally involved. 28. It is not unusual for a judge to hear the requested testimony in (i.e., privately and in chambers) before ruling on a Fifth Amendment privilege. 29. A competent body can compel testimony by granting to the witness. 30. A defendant challenges prosecution witnesses by: cross- those prosecution witnesses; and, presenting rebuttal evidence to their credibility. 31. The Supreme Court has held that the right to counsel applies during: custodial interrogations (the right); for identification by witnesses; ments; preliminary ; trials; and,. 32. An arrest requires that the police officer have cause to believe that the suspect has committed a crime. 33. A detention requires that the officer have suspicion that the detained person has engaged in, or is about to engage in, a criminal act. 34. An arrested person may be released on bail or his own following booking for the arrest.

172 CHAPTER 7 Criminal Law and Procedure 35. A court may issue a warrant for the arrest of an accused who does not appear in court when ordered to do so. 36. An indictment is returned by the if there is probable cause to believe the accused committed the crime he is charged with. 37. As an alternative to guilty or not guilty, the accused can enter a plea of no (nolo contendere). 38. Common pretrial motions in a criminal case include: motions to unlawfully obtained evidence; motions for of the trials of codefendants; and, motions for change of. citizen s arrest crime against persons crime against property KEY TERMS arraignment detain arrest double jeopardy arrest warrant Exclusionary Rule bail exculpatory evidence

STUDY GUIDE 173 false arrest Miranda Warning felony misdemeanor grand jury mistrial hung jury nolo contendere indictment plea bargain information preliminary hearing infraction probable cause

174 CHAPTER 7 Criminal Law and Procedure proof beyond a reasonable doubt public defender self-incrimination suspended sentence WORKING ON-LINE Go to the Web site for the National Association of Criminal Defense Lawyers (NACDL): http://www.criminaljustice.org Follow the link for Criminal Justice News-Issues and locate articles on one of the following topics: Miranda Warning death penalty Exclusionary Rule Then go to the Web site of the National District Attorneys Association (NDAA) http://www.ndaa.org and find articles on the same topic. Evaluate the objectivity or bias of the articles you find. To what extent was your evaluation of these articles influenced by your own bias on the issue? ETHICAL CHALLENGE Mitchell Wong is a paralegal in the district attorney s office of a large metropolitan city. He is assigned to the city s anti-gang task force, which also includes representatives from the police department, probation department, and state parole board. The task force attempts to identify and prosecute hard-core gang members involved in drug trafficking, extortion, and drive-by shootings. The task force is making a special effort to identify gang members who already have two felony strikes so that the state s three-strikes law can be invoked. Mitchell works closely with the detectives who accumulate the evidence and he prepares evidence and biographical summaries for evaluation by the deputy D.A. who prosecutes the cases. Currently, Mitchell is working on a case involving members of the North Street Boys, a gang notorious for its violence against merchants who resist the gang s extortion tactics. The task force has targeted an eighteen-year-old North Street gang member who has one felony narcotics conviction from out-of-state and one felony assault conviction in the local courts. Last month, the police arrested the gang member on charges of aggravated assault on a sixty-six-year old shop owner. The deputy D.A. is preparing to file a criminal complaint with a three-strike allegation. In reviewing the gang member s criminal record, Mitchell realizes that the out-of-state conviction occurred when the gang member was only fifteen. In working on another similar case three years ago, Mitchell learned that the courts of that state expunged a single, non-violent conviction of youths under sixteen if they had not acquired another conviction by the time they turned eighteen. At that time, the process didn t even require an application to the court. The North Street Boys is an unusual street gang in that they keep on retainer a talented criminal defense attorney of uncertain ethical standards. Unlike other gangs, who use public defenders, the North Street members are always represented by their own attorney throughout every step of the criminal justice process. Because of the gang s vicious reputation and the brutal crime this particular gang member is accused of committing, Mitchell wants very much to see this prosecution go smoothly. However, he fears that the defense attorney will recognize that the gang member s first strike might still be on his record only through clerical error in the courts of the other state. He also wonders if his office has an ethical duty to disclose to the defense counsel the possibil-

STUDY GUIDE 175 ity that this should not be a three-strike case, after all. Mitchell even feels conflicted about bringing this situation to the attention of the deputy D.A. ETHICAL ANALYSIS One duty is crystal clear: Mitchell has an ethical obligation to inform the deputy D.A. of his concerns about the validity of the gang member s first strike. This duty arises not only from his employment relationship, but also because the D.A. s office is in a far better position to evaluate the situation. In other words, Mitchell s duty to the justice system is better served by informing his supervisor. One could argue that, under the duty of candor, the deputy D.A. should ensure that the court is aware of the facts surrounding the first strike and of the law of the other state. In an uncertain situation like this, however, it is not clear that candor requires the prosecutor to raise such a speculative matter. Also, does the prosecutor have an affirmative duty to investigate the issue further by contacting authorities in the other state? That is a complex question of an attorney s ethical obligations and goes beyond the responsibilities of Mitchell as a legal assistant. The prosecution may have a duty to disclose exculpatory evidence, but the possible expungement of an earlier conviction is not evidence regarding the defendant s culpability for the aggravated assault with which he is to be charged. In addition, the courts of some jurisdictions have ruled that the exculpatory evidence need not be volunteered, but only surrendered upon request by the defense. By informing the deputy D.A., Mitchell will have satisfied his ethical obligations in the matter. Only if he were to learn of some ethical violation by the prosecutor in responding to this issue, would any further ethical issue arise for Mitchell. READING CASE LAW The full text of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963) follows. This is one of those relatively few decisions in which a unanimous Supreme Court decided to overrule its own holding in an earlier case. It is a rare example, also, of an indigent convict prevailing in a habeas corpus proceeding before the U.S. Supreme Court. It is interesting to note that the Supreme Court appointed a distinguished jurist, Abe Fortas, to argue the petitioner s case before the Court. That jurist was later himself to serve as an associate justice on the Court. Gideon was a pivotal case because the Supreme Court ruled that a state must provide an attorney for an indigent defendant in a felony trial. After remand to the Florida Supreme Court, counsel was appointed to represent Mr. Gideon in a new trial. With the assistance of newly discovered witnesses, Gideon was acquitted by the jury. In a later case, the Supreme Court expanded the right to appointed counsel for misdemeanor trials, as well. Read the Gideon opinion as an example of our Supreme Court seeking justice for all, not just for the privileged among us. In spite of its short length, the Court s opinion changed our concept of due process of law. ANSWERS TO REVIEW QUESTIONS 1. For most crimes, the law requires that an accused had criminal intent (mens rea) when he committed the prohibited act. 2. One who commits the prohibited act for his own pleasure without intending specific harm to anyone else, but with reckless disregard for the possible harm to others, has general intent to violate the law. 3. When the accused s actions demonstrate an intent to cause the specific, actual harm that results, he has specific intent to violate the law. 4. Many crimes fall within the category of strict liability, and do not require that actual harm results from the illegal act. 5. When two or more persons agree to a joint effort to commit a crime, they commit the crime of conspiracy. 6. Responsibility for the crimes of others is known as vicarious criminal liability. The most familiar example is acting as an accessory to someone else s crime. 7. Today, statutory criminal law has almost completely replaced common law crimes. 8. A statute is unconstitutionally vague when the prohibited acts are not clearly defined. 9. An affirmative defense admits the acts alleged, but attacks the legal basis for holding the defendant criminally liable. 10. Legal insanity is not the same as a psychiatric diagnosis of mental illness. 11. The inability to form specific criminal intent, due to mental illness, intoxication, delirium, or emotional trauma is known as diminished capacity.

176 CHAPTER 7 Criminal Law and Procedure 12. The affirmative defense of entrapment alleges that: The intention to commit a crime never entered into the defendant s mind until the police officer suggested that he commit the crime. The crime would not have occurred but for the police officer s suggestion. 13. A felony is punishable by one year or more in prison, by fine, or by death. 14. The penalty for a misdemeanor is typically one year or less in confinement, or a fine. 15. Infractions are minor criminal offenses, punishable by fine only. 16. A citation (commonly called a ticket ) is issued for infractions. 17. The standard of proof for criminal cases requires evidence that convinces a reasonable and prudent person to believe, to a moral certainty, that the accused committed the crime as charged. 18. A petit jury is commonly known as a trial jury. 19. The presumption of innocence means that the burden of proof lies with the prosecution. 20. If the evidence allows any reasonable interpretation inconsistent with guilt, the legal presumption of innocence requires a verdict of not guilty. 21. Not until the Fourteenth Amendment was added, did the U.S. Constitution require the states to provide due process of law. 22. The Supreme Court has held that the Due Process Clause incorporates any right that is both fundamental and essential to the concept of ordered liberty. 23. The Supreme Court has held that each of the following procedural protections under the Bill of Rights are also valid against the states under the Fourteenth Amendment: no unreasonable search and seizure; no double jeopardy; no compulsory self-incrimination; right to a speedy and public trial; right to trial by an impartial jury; right to notice of all accusations; right to confront witnesses; right to subpoena witnesses for the defendant s case; right to assistance of legal counsel; no excessive bail or fines and, no cruel and unusual punishment. 24. The Miranda Warning focuses on the Fifth Amendment right against compulsory selfincrimination. 25. Once a valid trial has been completed, or when the improper conduct of the prosecutor or the court has invalidated a trial already in progress, the protection against double jeopardy becomes absolutely effective. 26. The most common form of mistrial occurs when the jury is unable to reach a unanimous verdict. A jury that is hopelessly deadlocked is known as a hung jury. 27. Self-incrimination means self-implication in criminal conduct anything one does or says from which a natural inference could be drawn that one was criminally involved. 28. It is not unusual for a judge to hear the requested testimony in camera (i.e., privately and in chambers) before ruling on a Fifth Amendment privilege. 29. A competent body can compel testimony by granting immunity to the witness. 30. A defendant challenges prosecution witnesses by: cross-examining those prosecution witnesses; and, presenting rebuttal evidence to impeach their credibility. 31. The Supreme Court has held that the right to counsel applies during: custodial interrogations (the Miranda right); lineups for identification by witnesses; arraignments; preliminary hearings; trials; and, sentencing. 32. An arrest requires that the police officer have probable cause to believe that the suspect has committed a crime. 33. A detention requires that the officer have reasonable suspicion that the detained person has engaged in, or is about to engage in, a criminal act. 34. An arrested person may be released on bail or his own recognizance following booking for the arrest.