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The Elements of a Crime
Learning Objectives
After reading this chapter and studying the materials, you should be able to:
1. Explain the format of criminal statutes.
2. Identify the components of a crime.
3. Define the culpable mental states.
4. Identify and describe the criminal defenses.
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Section 2.1 How to Read and Analyze a Criminal Statute
2.1 How to Read and Analyze a Criminal Statute
T
he drafting of a criminal statute is a tedious and complicated process, because if it
is to accomplish the objective of social control, citizens and law enforcement personnel must understand it. Additionally, the law must pass constitutional scrutiny,
because appellate courts have the power to invalidate a law if it is determined to violate
state or federal constitutions.
Indeed, law enforcement officers, lawyers, judges, courts, and ultimately, the people
interpret and scrutinize laws. For this reason, the language used to draft criminal statutes
is critical to the process.
The Format of a Criminal Statute
Criminal statutes are codified, which means that lawmakers in a particular jurisdiction
have passed laws and included them in an official document. The criminal laws of the
federal system are codified in the U.S. Code. Likewise, each state has its own code. The
name of the codified laws may vary from state to state. In Tennessee, statutes are called
the Tennessee Code Annotated. The Ohio Revised Code contains the criminal laws for the
state of Ohio. In the commonwealth of Kentucky, the criminal laws are called the Kentucky
Revised Statutes. In other words, each state has its own naming convention. But in all
cases, they include the written statutes.
The written laws for a particular jurisdiction will consist of multiple books. A visit to a law
library would yield these books, which include the U.S. Code as well as each set of state
laws. However, in recent years most state legislatures have also posted their statutes on
the Internet. That has made legal research easier, because the Internet offers access to
the most up-to-date statutory information.
Consider This: Resources for State and Federal Criminal Statutes
The following websites offer information on selected federal and state criminal statutes:
The U.S. Code: http://143.231.180.80/browse/&edition=prelim
California Penal Code: http://www.leginfo.ca.gov/.html/pen_table_of_contents.html
Florida Statutes: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display
_Index&Title_Request=XLVI#TitleXLVI
Montana Code Annotated: http://data.opi.mt.gov/bills/mca_toc/45.htm
Ohio Revised Code: http://codes.ohio.gov/orc
Pennsylvania Crimes Code: http://www.legis.state.pa.us/WU01/LI/LI/CT/htm/18/18.htm
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Section 2.1 How to Read and Analyze a Criminal Statute
Consider This: Resources for State and Federal Criminal Statutes (continued)
Examining the various codes reveals that each jurisdiction has its own unique numbering system.
While that may seem confusing, the numbering systems are designed to provide the reader with a
logical approach to examining the statutes. The codes typically use some type of outlined numerical system that contains titles and numbers. Each code is broken into major categories under which
laws relating to that topic are found. You will often find a title or chapter addressing Criminal Law
or Crimes. There might be one on Family Law or even Parks and Wildlife. If you go to the Topic Area
of Criminal Law, it will likely be divided into smaller topics, such as Crimes Against Persons or Theft
Related Offenses. While the names and numbers may from vary state to state, they are usually pretty
easy to traverse.
As you peruse the above codes, try to find laws pertaining to the following crimes:
Montana: Burglary
Ohio: Aggravated Murder
Pennsylvania: False Imprisonment
United States (Federal): Treason
Though the organization of the criminal code varies in each jurisdiction, there are common threads
in all of the crimes. They will all identify the offender, the required mental state of the offender, the
action taken, causation, the victim if necessary, and a penalty clause. Before you examine those components, it helps to understand the legal language used in the criminal law.
AFP/Getty Images
In October 2010 President Barack Obama signed
Rosa’s Law—named for Rosa Marcellino, a young girl
with Down syndrome—which replaced offensive and
outdated language in federal statutes. Many state
legislatures are following suit by enacting bills that
replace the use of terms such as mental retardation
with intellectual disability.
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The Language of the Law
Because criminal statutes are subject to considerable scrutiny and
interpretation, lawmakers often
use technical and legal language
to write criminal laws. As a result,
people untrained in the law may
have difficulty understanding the
language. Interestingly, two of
the simplest words can cause the
most confusion: or and and. These
small words make a big difference in determining, among other
things, whether a defendant has
committed a crime. As you will
see as we work through this chapter, an offender must meet all of
the required elements in order to
be charged with that crime. For
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Section 2.1 How to Read and Analyze a Criminal Statute
CHAPTER 2
example, if a statute states that the person must do A and B, then there is no crime unless
both A and B have been committed. However, if the connecting word was or, then committing either A or B would be sufficient to be charged with a crime. While it may seem
like common sense, it requires the reader of a statute to pay careful attention.
Another common obstacle to interpreting a criminal statute is the use of highly specialized
words with specific definitions. Some laws include terms that are defined elsewhere in the
code. Some words may have special interpretations and definitions that have been set by
the courts. For example, a rape statute might prohibit “sexual conduct” under particular
circumstances. It might state, “No person shall compel another, by force, to engage in
sexual conduct.” In order to know what types of behavior are being addressed, one must
know how the legislature has defined “sexual conduct.” Readers must determine definitions of terms to properly interpret the statute. Likewise, some terms are not defined by
the legislature, so courts must interpret them. If a drunk driving statute used the phrase
“operate a motor vehicle,” one must know how the appellate courts have interpreted the
word operate—it often has a meaning beyond driving. For example, the Massachusetts
Court System Model Jury Instructions state, “A person ‘operates’ a motor vehicle not only
while doing all of the well-known things that drivers do as they travel on a street or highway, but also when doing any act which directly tends to set the vehicle in motion.”
Consider This: Was Lester “Operating” His Car?
Lester attended his nephew’s wedding reception, which featured an open bar with free drinks. After
drinking five margaritas, Lester headed home. He stumbled to the street, where his car was legally
parked at a parking meter. He opened the door, put his keys into the ignition, turned on the radio, but
then decided he was too intoxicated to drive. So he fell asleep. An hour later a police officer noticed
Lester passed out in the car. The officer knocked on the car window and asked Lester to step out of
the car. The officer quickly realized that Lester was drunk and arrested him for driving while intoxicated. The driving while intoxicated statute in Lester’s state specifies that the offender “operate” a
motor vehicle while under the influence of an intoxicant in order to be charged with drunk driving.
Was Lester “operating” the car if he was sitting behind the wheel with his keys in the ignition but not
driving?
Some words may have different meanings in the statutory setting than in everyday common usage. For example, a number of crimes include the element of possession. But in
most cases, the concept of possession means more than simply having something. It usually implies the offender knew he or she had the item. The fact that a gun was in a woman’s glove compartment does not necessarily mean she was aware it was there. In this
way proving knowledge of possession becomes an element of the crime.
The reader of criminal statutes must deal with inconsistent language and structure as
well. Laws are written over a period of time. A state’s murder statute may have been written in 1969, whereas the computer fraud offense may have been written 30 years later.
Just like in society, the use of language changes and evolves.
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Section 2.2 The Components of a Crime
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Concept Check: True/False: If a statute defines A and B in its language describing
a crime, an offender only has to commit either A or B to be found guilty.
False. If a statute states that the person must do A and B, there is no crime unless both A and B
have been committed.
2.2 The Components of a Crime
E
ach criminal offense has specific elements that are required in order to state
whether a crime has been committed. These elements, which may include the
offender’s mental state, the actions, and the circumstances surrounding the event,
are introduced in this section. Additionally, each offense will identify the penalties that
may be imposed if an offender is found guilty of committing the crime.
Determining the Elements of a Crime
Judges and juries must listen to testimony and examine evidence in order to determine
if a person has committed a crime. In doing so, they must not only decide what facts in a
case are true; they must also apply the law. To accomplish that task, they must understand
what behaviors are prohibited and decide whether the defendant has engaged in them.
Those prohibited behaviors make up the elements of the crime.
One way to think about it is that the elements are the pieces to a jigsaw puzzle. A person
has not committed a specific crime unless all of the required elements fit the puzzle.
Consider This: Fashion Malfeasance
Consider the following hypothetical statute: Fashion Malfeasance Code 324.09.
A. No person shall wear the following apparel in a public place:
1. A red shirt with orange trousers.
2. A red shirt with lime green trousers or skirt.
3. Any combination of trousers, skirt, shirt, or blouse in which one component is plaid and
another is striped.
B. A person who violates any of the above sections has committed the crime of Fashion Malfeasance and shall be punished as follows:
1. An offender who has no previous convictions for Fashion Malfeasance is guilty of a Second
Degree Misdemeanor and may receive a definite term of incarceration of up to but no more
than 30 days.
2. An offender who has one or more previous convictions for Fashion Malfeasance is guilty of
a First Degree Misdemeanor and may receive a definite term of incarceration of up to but
no more than 60 days.
(continued)
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Consider This: Fashion Malfeasance (continued)
Apply the statute: Mrs. Smith goes to the mall on Saturday morning. She is wearing a bright yellow
hat, a red blouse, and blue plaid linen slacks. The mall security guard spots her outside of a store and
immediately contacts the local police. Upon their arrival, Smith is arrested for the crime of Fashion
Malfeasance pursuant to local code 324.09. For evidence, the security guard takes her photograph
with his cell phone.
You are on the jury. The security guard testifies that he observed the defendant walking in the mall
and describes how she was dressed. He is allowed to present his cell phone photo of Smith into evidence. When it is time to deliberate, you must decide what facts you believe and if the crime was
committed. Certainly you agree that Smith was in a public place, and you can easily make a decision
as to what she was wearing. But is she guilty of the crime? Were all of the required elements met?
No. Section 1 requires that she wear a red shirt with orange trousers. She did not. While she had on
a red shirt, she was not wearing orange pants.
Section 2 requires that she wear a red shirt with lime green trousers. She did not.
The answer is also no for Section 3. While she was wearing plaid, she did not wear any component
that included stripes.
Therefore, based on the evidence, you must determine that she did not meet the elements of the
statute. Not guilty. Even if you thought her outfit was hideous, you must still enter a verdict of not
guilty because the elements were not met.
Who Is the Offender?
Most criminal statutes will first identify the offender. The language will often read, “No
Person shall. . ..” In some cases the offender will be identified by additional criteria such as
age or status. In such cases the language might read, “No person, who is eighteen years of
age or older. . ..” Such age specifications are common in sex offenses. An example of status is when a statute is directed at someone in a particular situation, such as a caregiver.
The statute might read, “No person who is acting as an employee, volunteer or caregiver
in a nursing care facility. . ..” Descriptors such as these are often directed at people with
specific responsibilities. Many states have elevated penalties for assault crimes involving
caregivers, or they may address crimes that are committed by specific public officials.
Mens Rea: What Is the Required Mental State?
The issue of the intent or other mental processes of the offender is often a required element of a crime. An offender’s reasoning may impact the crime. If the statute states,
“No person shall intentionally cause another’s death,” then the prosecutor must prove
the defendant intended to kill. The most common descriptions of an offender’s mental
state are purposely or intentionally, knowingly, and recklessly or negligently. There are
some offenses, such as minor traffic offenses, in which the mental state is irrelevant. For
example, it may not matter why you were speeding, only that you were. Those are called
strict liability offenses.
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Section 2.2 The Components of a Crime
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Actus Reus: What Is the Action?
Criminal offenses require either specific action or, in some cases, the absence of action.
The term actus reus is Latin for “the guilty act.” The identification of the act is often the
most difficult. A judge or jury must determine what specific acts are prohibited by the
statute and if the defendant engaged in those acts. The statute might say: “No person
shall intentionally cause physical harm to another.” Therefore, if a woman walked up to
another woman and slapped her across the face, she would meet the elements of that
statutory language because she intentionally caused her victim harm. In that situation it
would be fairly easy to decide the action violated the statute. But the action can also be
quite complicated. There may be a requirement that the offender engage in a combination of actions in order to meet all of the required elements. As we mentioned earlier in
the discussion on legal language, it is necessary to examine words very carefully. Consider
a murder statute that requires that the offender “cause the death of another.” A man
shoots another man in the leg and the victim dies. The medical evidence shows that the
victim died of a heart attack and that the gunshot would not have been fatal. A jury may
have to determine whether the gunshot caused the fatal heart attack. If the answer is no,
the offender has not committed the crime of murder and instead would likely be convicted of a less serious felonious assault charge.
In some cases, the required action in the statute might actually be an omission to act.
Suppose a statute requires a person to perform a function or act in a particular manner. If
they fail to do so, they commit a crime. For example, most states require a police officer
who witnesses a crime to take appropriate action, such as making an arrest. If an officer
fails to do so, he commits a crime such as dereliction of duty.
In any event, the required element of an action also implies that the action or omission
to act is voluntary. Involuntary actions do not meet that requirement. In the Ohio Revised
Code, the language specifically excuses involuntary actions: “Reflexes, convulsions, body
movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition, are involuntary acts” (O.R.C. 2901.21 D.2).
Consider This: Was an Act Voluntary?
Susan and Rob are standing together at the edge of a cliff admiring a beautiful vista. They take in a
romantic and stunning sunset. Suddenly, Rob sneezes. His entire body convulses, and he inadvertently knocks Susan over the cliff. She falls 200 feet to the jagged rocks below and is killed instantly.
Did Rob’s action cause Susan’s death? Certainly. However, he would not be guilty of a crime because
his action was involuntary. This would be tragic, but not criminal.
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Section 2.2 The Components of a Crime
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Causation
In some criminal offenses, a required element is causation. The defendant’s actions must
cause the harm. In a homicide, the offender’s action must cause the victim’s death. Consider the following scenario: Reuben shoots Austin in the head, and he dies from the gunshot wound. Therefore, Reuben’s actions caused Austin’s death. In another example, the
damage that results from intentionally setting a fire would satisfy the causation requirement in an arson case. In cases where causation is a required element, the state must
prove beyond a reasonable doubt that the events would not have occurred if the defendant’s actions had not caused them. This is often referred to as the “but for” test of causation: But for the action of the defendant, the result would not have occurred. In the above
example, Austin would not have died if Reuben had not shot him. On the other hand, if
Reuben had only stabbed Austin in the finger with an ice pick and then he died of heart
disease four months later, the stabbing would not have caused his death.
Is There a Specific Victim?
Some criminal statutes may
require a specific victim. As mentioned earlier, there are crimes
specific to whether a victim is a
patient in a care facility. There are
some property crimes that might
refer specifically to a government
building as the target of an act of
vandalism. Some statutes—especially sex offenses—require the
victim be under a certain age.
Some statutes make killing a child
under a specific age a more serious offense.
OJO Images/SuperStock
It is often not enough for prosecutors to prove a crime
was committed; additional elements, such as actus reus
or causation, are also required before a defendant can be
found guilty.
Penalties
All criminal statutes provide a penalty for committing a specific crime. This is usually
accomplished by identifying the penalty classification of the offense. Others may refer
the reader to another section in the code that explains the punishment. A penalty section
might read as follows:
Breaking and Entering: Whoever is determined to be guilty of committing
the offense of Breaking and Entering has committed a felony of the fourth
degree.
This type of writing makes clear the penalty classification, but a reader must refer to
another section in the statutes to determine what punishments are possible. There might
be another section that defines the classifications, which could read:
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Section 2.3 Culpable Mental States: Inside the Mind
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Felony of the Fourth Degree: An offender convicted of a felony of the
fourth degree may be sentenced to incarceration in a prison of the state
for a term of no less than six months nor more than five years. In addition,
the offender may be required to pay a fine not to exceed twenty-five hundred dollars ($2,500).
Specially designated penalties exist as well. For example, many states include the suspension of one’s driver’s license as a penalty for driving away from a self-service gas station
without paying. Of course, the more serious traffic crimes, such as driving while intoxicated or reckless driving, often carry the possibility of license suspension. Some crimes
might prevent an offender from holding public office. In some states if a police officer is
convicted of domestic violence, the officer can no longer carry a firearm.
As previously indicated, a felony is a crime for which a perpetrator might be incarcerated
for 1 year or more. A misdemeanor’s possible penalty includes incarceration of less than
1 year. Many jurisdictions also have misdemeanor classifications for offenses that carry
only fines. Felony sentences are usually served in prisons, while misdemeanor sentences
are served in local jails.
Concept Check:True/False: Omission to act is NOT a component of actus reus.
False. In some cases, the required action in the statute might actually be an omission to act. That
occurs when the statute requires a person to perform a function or act in a particular manner. If
they fail to do so, it is a crime.
2.3 Culpable Mental States: Inside the Mind
A
s discussed previously, most crimes include a required element that relates to the
thought process of the offender. In a sense, the law asks: What was he thinking?
In order for a person to be found guilty of a crime, the offender must have the
culpable mental state required by the statute. Mens rea is a Latin term that means “guilty
mind.” It describes how a person’s mental state informs a criminal act.
Some crimes only require that the offender act recklessly or negligently. The crimes considered the most serious often require that the offender acted purposely or intentionally.
With most murder statutes, the offender must have intentionally caused another person’s
death. Accidental or reckless acts, though criminal, do not carry as severe a punishment
as do intentional acts. But determining what is inside a person’s mind or what he or she
intended is no easy task. Judges and juries make such determinations by examining evidence and making reasonable inferences.
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Section 2.3 Culpable Mental States: Inside the Mind
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The culpable mental states are intent, knowledge, recklessness, and negligence. The concept of strict liability, which does not require a culpable mental state, applies to some
minor offenses.
Consider This: Was There Intent to Kill?
Julius walks into a crowded subway station carrying a shotgun. He yells, “I’m sick of this train station
and I hate of all of you!” He then fires five shots into the crowd, killing two people. He runs out of the
train station and is captured four blocks away, still holding the weapon. Upon being arrested, he tells
the police he did not mean to do it and it was an accident. If you were on the jury, you would need
to determine if Julian intended to kill the people in the subway station.
Consider the evidence. He told police he did not mean to do it. But he expressed hatred and frustration with the train station and the train passengers. One could reasonably infer from his statement
before shooting that he intended to harm people. His actions, too, are clues. He brought a shotgun
with him to the train and fired it five times directly into the crowd. It is reasonable to infer that he
intended to harm someone if he brought his gun and voluntarily fired his weapon five times. Courts
do not use a psychologist to examine his thoughts. Judges and juries would examine words, actions,
evidence, and outcomes in order to logically determine what his intentions were during the commission of the crime. It would be reasonable to believe this killer acted intentionally and therefore
committed the crime of murder.
APimages.com
Robert Chambers, nicknamed the “Preppie
Killer,” was charged with murdering
Jennifer Levin in 1986. Chambers claimed
the death occurred accidentally during
rough intercourse. Prosecutors could not
establish intent, and a plea bargain of
manslaughter was reached.
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Intention or Purpose
Many of the most serious crimes require that
the offender act intentionally. Some jurisdictions may use the words purposely or willfully
interchangeably. A person acts intentionally
if it is his or her specific intention or purpose
to cause a certain result. Acting intentionally also includes having a specific purpose to
create or cause a certain circumstance. A person’s mental state is linked very closely to the
action involved and the likely result. Suppose
you broke your neighbor’s car windows with a
sledgehammer. The local criminal code states
that no person shall intentionally cause damage to another’s property. It appears that you
both acted intentionally and met the element
of intentionally causing damage. However, if
while mowing your lawn a metal shard from
the mower shot across your lawn and broke
your neighbor’s window, you would not be
found guilty. Even though you may be civilly
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Section 2.3 Culpable Mental States: Inside the Mind
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responsible for the damage, you are not guilty of the crime because it was not an intentional act—and intention is a required element.
Determining intent is not always easy. Consider the crime of attempted murder, which
might be described in a statute as follows: “No person shall intentionally attempt to cause
the death of another.” Suppose Lindsay, jealous of her roommate Keisha because she is
dating Lindsay’s ex-boyfriend, stabs her in the leg with an ice pick. Unknown to Lindsay,
Keisha is taking medication that prevents her blood from clotting; she bleeds to death
before Lindsay can get her to the hospital. Lindsay is charged with attempted murder
under our hypothetical statute. Did she attempt to kill her? We know that Lindsay caused
Keisha’s death, because Keisha died as a result of the ice pick wound. However, to prove
Lindsay is guilty, the prosecution must prove it was her specific intention to cause Keisha’s
death. Was it? If she was only trying to hurt her, the answer is no. If she knew Keisha
would bleed to death if she stabbed her, then the answer would be yes. Lindsay could
argue that her efforts to take Keisha to the hospital indicated she did not mean to kill her.
Judges and juries consider these issues in order to answer the critical question of whether
a person acted intentionally.
Motive should not be confused with intent. The reason for committing a crime is considered the motive. A man might steal milk from the grocery store because he is out of
money and needs milk for his child. Why he stole the milk is his motive. A woman might
shoot her boyfriend because he is cheating on her. Jealousy is her motive. Her intention is
to shoot him and cause him harm, perhaps death. Motive is an important consideration in
a criminal investigation and is often considered by a judge or jury as they examine a person’s action. Motive may even be considered by a judge when determining punishment.
Motive describes why a person commits a crime, not their intention to commit the crime.
Concept Check: True/False: Motive and intent are synonymous.
False. Motive refers to the reason why a person commits a crime. Intent describes whether a
person purposely or willfully commits an act with a specific, desired result.
Knowledge
Many crimes require that the offender act knowingly. An offender acts knowingly when
he or she is aware that his or her conduct will cause a certain result that is of a specific
nature or that certain circumstances exist. The offender does not have to intend a specific result, but acts knowingly if he or she would reasonably know that a certain result
is likely. Legal scholars often argue there are only minor distinctions between knowledge
and intention. While that may be true, most states use knowledge as the mens rea for a
variety of offenses.
For example, if a man threw a rock into the crowd at a football game and it injured someone, we could infer the rock thrower acted knowingly. It may not have been his intention
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Section 2.3 Culpable Mental States: Inside the Mind
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to harm anyone, but he would have certainly known that someone would likely be hit by
the rock and probably injured.
In another scenario, imagine having dinner at a restaurant. You notice another diner leave
the restaurant and leave her purse hanging over her chair. After looking around to make
sure no one sees you, you take her purse and steal her money. You knowingly took someone else’s property without permission.
Recklessness
The concept of recklessness is often used in traffic-related offenses as well as crimes
involving dangerous materials or devices. A person acts recklessly when he or she ignores
or disregards a known risk and knows a certain result is likely to occur. In common language, recklessness is dangerous or stupid behavior. One of the most common crimes that
includes the culpable mental state of recklessness is reckless driving. Dangerous driving
behaviors that fall under the category of recklessness include excessive speed, drag racing, drunk or impaired driving, and playing chicken with cars.
Consider This: Are They Reckless?
Reckless: A person acts recklessly when he or she ignores or disregards a known risk and knows a
certain result will likely occur.
Example 1: Lola drinks five beers and is so intoxicated she is having trouble walking straight. Despite
this, she gets into her car and drives home.
To drive a vehicle while intoxicated is to disregard a known risk. Drinking to excess and then trying to
drive is reckless.
Example 2: John and Jake park their cars on a railroad track. They dare each other to stay on the track
as a train arrives. The first one to bail out is chicken.
This is a high-risk behavior. Both John and Jake engage in conduct that a reasonable person understands has a substantial likelihood for harm or damage.
Example 3: Edna places unmarked containers of sulfuric acid in her trash can without telling the trash
collector.
A reasonable person would realize that disposing of a dangerous chemical such as sulfuric acid would
pose a danger to the trash collector and anyone else who unsuspectingly comes in contact with it.
The containers could easily explode during crushing or handling.
Recklessness does not apply only to traffic-related crimes. Many states have laws that
address other reckless behaviors that result in harm. These might include the reckless
disposal of dangerous chemicals or the reckless handling of a firearm.
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Negligence
Crimes requiring only negligent behavior are rare. Negligence occurs when a person fails
to adhere to a standard of care or fails to behave in a commonsense manner that could
reasonably be expected in a given situation. Negligence is a legal concept that is more
common in civil lawsuits than criminal ones. A person’s legal expectation in a particular
situation is called the standard of care. For example, drivers are expected to obey stop
signs, look in all directions, and proceed with caution when the intersection is safe and
clear. This standard of care is taught in driver’s education and driving manuals, and it
is enforced by the law. A person who fails to stop at a stop sign is therefore negligent.
Another example of negligence might include a person or company that fails to follow
operating instructions on a piece of equipment and hurts someone as a result. Other than
traffic offenses, legislators draft very few laws that criminalize negligent behavior. Most
states do, however, criminalize negligently handling firearms, explosives, and dangerous
chemicals. Beyond these, however, most negligent incidents are considered accidents and
are handled in the civil courts.
Strict Liability
Strict liability crimes are those in which a person is responsible for his or her actions
regardless of his or her culpable mental state. As previously mentioned, there are some
offenses that do not require a culpable mental state. These are crimes in which the mental state of the offender is irrelevant. Essentially, if the action occurred, then the crime
has occurred. That would be the case with most minor traffic offenses. For the crime of
failing to stop at red light, for example, the mental state of the driver does not matter. If
the driver failed to stop, the violation has been committed. Offenses that require specific
regulatory actions, such as vehicle registration, are strict liability crimes. For example, the
crime of bigamy, which prohibits marriage to more than one person at a time, is a strict
liability offense in most states.
Concept Check: True/False: The culpable mental states are intent, knowledge,
recklessness, negligence, and strict liability.
False. The culpable mental states are intent, knowledge, recklessness, and negligence. Strict liability does not require a culpable mental state.
2.4 Criminal Defenses
I
n a criminal trial, the government is responsible for bringing the charges to prove the
case. The amount of proof required to prove a particular fact or case is called the burden of proof. The burden of proof required in a criminal trial is proof beyond a reasonable doubt. The defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. Technically, if the prosecutor does not present sufficient evidence to prove
that burden, the defendant is considered legally innocent and does not have to present a
defense. There are other standards of proof used in the legal system. The burden of proof
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Section 2.4 Criminal Defenses
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in a civil trial is usually proof beyond a
preponderance of evidence. The burden for many legal motions and in some
administrative law settings is clear and
convincing evidence. But in a criminal
trial, it is the duty of the prosecutor
to prove all required elements of the
crime beyond a reasonable doubt. The
standard of beyond a reasonable doubt
does not require absolute certainty. It is
actually a degree of probability. The jury
must examine the evidence and base its
decision on reason and common sense.
Hemera/Thinkstock
In all criminal cases, the prosecutor is
While
the
prosecution
must
prove
its
case beyond
responsible for presenting the evidence
a
reasonable
doubt,
a
defendant
must
typically
to the court in a manner that convinces
demonstrate an affirmative defense with clear and
the jury that the defendant has met all
convincing evidence.
of the elements of the charges. If the
prosecutor fails to do so, the defendant is not guilty. In all trials, the defendant has the
right to present a defense. That defense may consist of an attack on the prosecutor’s evidence in an effort to convince the jury the defendant did not commit the charges. There
are also specific defenses, called affirmative defenses, that may excuse the defendant
from guilt. Since these are claimed by the defendant, most jurisdictions require the defendant to prove his or her defense. However, the burden of proof for an affirmative defense
is less than proof beyond a reasonable doubt. It is usually either clear and convincing evidence or a preponderance of evidence. If a defendant successfully proves an affirmative
defense, he or she may be relieved from criminal liability. That means the defendant will
not be held responsible for the criminal charges. In this section, we will examine those
defenses.
Self-Defense
In crimes involving physical harm to a person, the defendant may argue he or she acted in
self-defense. This defense may be used in assault crimes or even murder cases. It arises
when the defendant, who has physically harmed someone, claims his actions were justified because he was trying to protect himself or others. Self-defense law allows individuals to use reasonable and necessary force to protect themselves or others. Determining whether a person acts reasonably under the circumstances can be difficult. Was
the defendant truly in danger? Did his or her defensive actions constitute a reasonable
response to the threat? Did the defendant use necessary or excessive force? Juries must
imagine themselves standing in the defendant’s shoes and determine whether the action
met the requirements of self-defense.
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Consider This: Was His Action Reasonably Necessary to Protect Himself?
Johnson was playing softball for his community college team and had just struck out. He was the
last batter, and as a result his team lost the game. As he was walking back to the dugout, one of his
teammates, angry because they lost, ran up and pushed Johnson down. Johnson jumped up, hit his
teammate in the arm with an aluminum bat, and broke his teammate’s arm. Johnson was arrested
and charged with felonious assault. At his trial, Johnson claimed self-defense. Did Johnson act reasonably? Was it reasonably necessary for him to strike his teammate with a baseball bat in order to
protect himself?
Concept Check: If you injured an assailant while trying to stop an assault, could
you claim self-defense?
Answer: Yes. The law also allows people to use reasonable force to protect others. If you observe
someone assaulting another person, you can step in to protect him or her so long as your actions
are reasonably necessary.
Mistake of Fact
A misunderstanding of a fact or circumstance may be an acceptable defense. If the
mistake of fact means the defendant did not meet the required mental state, it could
result in a reduced charge or even a not guilty decision. For example, in the crime of theft,
an offender must intentionally deprive the owner of property. If a person took property
but honestly did not realize that it was someone else’s, the person would be not guilty
because he or she lacked the specific intent to take another’s property.
Consider This: Is Gladys a Thief?
Gladys goes to the hairdresser every Saturday morning. It is a friendly environment, and she knows
everyone in the salon. One cold February day Gladys grabbed her full-length leather overcoat from
the waiting area and headed home after her haircut. However, when she pulled into her driveway,
the local police were waiting for her. They accused her of stealing a coat that belonged to another
woman at the salon. It turned out that Gladys had grabbed the wrong coat. It was almost identical
to hers but was a different brand and had a slightly different type of collar. Is Gladys guilty of theft?
You have likely heard someone say that being ignorant of the law is no excuse for committing a crime. It is true that people are responsible for complying with a law whether they
are aware of the law or not. However, it is also true that criminal law is continually changing and can be very complicated. In some circumstances a person’s ignorance of the law
may prevent him or her from forming the required criminal intent. Occasionally, a new law
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will be passed—the only way a person could intentionally violate it is if he or she knew and
understood the law. For example, there have been a few tax fraud cases in which, because
of the complications of the tax code, the defendant did not believe he or she was violating the law. For these types of criminal tax fraud charges, the government must prove the
defendant acted willfully. If the defendant, in good faith, did not believe he or she was
violating the tax law, then he or she could not willfully fail to pay taxes.
Privilege
The defense of privilege allows an individual of a particular status or position to engage
in conduct that would otherwise be prohibited. For example, parents have the right to
use reasonable physical force to restrain or discipline their child. A police officer has the
right to use reasonable physical force to bring someone into custody. In correctional facilities, officers have the right to use reasonable physical force to ensure the security of
the inmates and staff. During medical examinations or procedures, a medical professional
may touch patients in a way that would be considered unlawful sexual contact in other
circumstances. In such cases parents, corrections officers, and medical professionals are
protected by privilege. Other examples of privilege include licensed pharmacists who may
distribute controlled substances as long as they comply with proper procedures, or the
privilege of people to carry a firearm if they comply with their state’s concealed carry laws.
Alibi
The alibi defense is perhaps the simplest. If a defendant claims the defense of alibi, she
asserts she did not commit the crime because she was somewhere else at the time of the
act. The alibi defense is usually supported by testimony or evidence to prove the defendant was, in fact, somewhere else.
Consider This: A Credible Alibi
It was almost midnight on New Year’s Eve. Calvin was in the midst of a large crowd in Times Square,
watching the ball drop in New York City. Just as the clock struck midnight, someone shot and killed
Calvin. One witness claimed the shooter was Roger, an old college friend of Calvin’s. After being
charged with the crime, Roger claimed the defense of alibi. He said he was not in New York City on
New Year’s Eve, but rather in Cleveland, Ohio, attending a party at the Rock and Roll Hall of Fame.
A videotape of the party proved he was in Cleveland at the moment Calvin was shot. That would be
the defense of alibi.
In many states a defendant who claims the defense of alibi must file a formal notice with
the court prior to trial so that the prosecutor has sufficient time to conduct an investigation of the alibi claim. Witnesses who give false information or testimony in support of an
alibi may be prosecuted for perjury or obstruction of justice.
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Entrapment
Entrapment is a defense in which the government placed the criminal intent into the otherwise innocent and unwary mind of the defendant. As the U.S. Supreme Court defined
it in Sorrells v. United States, 187 U.S. 435 (1932), “Entrapment is the conception and
planning of an offense by an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.”
Often referred to as the “government made me do it” defense, entrapment is one of the
most controversial defenses and is rarely successful. To claim entrapment, defendants
must admit to the criminal conduct while convincing the jury that they had no criminal
intent until law enforcement persuaded them to act. They must prove they were not predisposed to commit the crime and would not have done so without the law enforcement
intervention. It is a difficult burden for the defendant.
There are a number of misconceptions about the defense of entrapment. One cannot
claim entrapment when the police simply provide the opportunity to commit a crime.
If the police employ a bait car in a neighborhood where there have been several auto
thefts, for example, this is not entrapment. Someone who steals the bait car is already
predisposed to steal, a fact that does not change simply because the police provided an
easy opportunity for theft. Similarly, police have created fake fencing operations. Fencing
is a slang term that refers to someone who buys stolen property. In such an operation,
undercover officers set up storefronts or pawn shops and spread the word that they are
willing to purchase stolen goods without a lot of questions. People begin bringing stolen
merchandise to them. When caught, they often claim entrapment—but this is not a valid
defense in these situations. The thieves were already thieves, and law enforcement did
not create the criminal intent.
One of the most famous entrapment cases involved John DeLorean, the famous automotive designer. DeLorean, who was the designer of the iconic Pontiac GTO muscle car, left
General Motors to form his own
car company. He built the DeLorean DMC-12, a stainless steel gullwinged sports car made famous
in the Back to the Future movies.
DeLorean built his car company
in Dunmurry, Ireland, in the early
1980s. His timing could not have
been worse. America was engulfed
in tremendous financial problems
arising from high inflation, and
people were not spending money
on luxury items. At the same time,
Ireland was in the midst of its own
political problems involving the
AP Images
Irish Republican Army. The comJohn DeLorean is one of the few criminal defendants who
pany was failing.
successfully proved entrapment.
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During this time, DeLorean was approached by a purported drug dealer who was actually
an informant working for the FBI. The informant, with the assistance of the FBI, proposed
a complex and detailed criminal enterprise in which DeLorean could invest money and
assist in money laundering and cocaine distribution, to which DeLorean agreed. The pieces
of evidence against him included video footage that showed him in a room with cocaine.
DeLorean was ultimately arrested and prosecuted in 1985. However, at trial DeLorean
asserted the defense of entrapment. He convinced the jury that the criminal enterprise
was completely a creation of the FBI and that he was not predisposed to commit any criminal act. The jury agreed that the FBI took advantage of DeLorean’s dire financial situation
and used the operation to draw him into criminal behavior, and it found him not guilty.
In 1992 the U.S. Supreme Court addressed the defense of entrapment in Jacobson v.
United States, 503 U.S. 540 (1992). In 1984 Congress passed a federal law prohibiting
the possession of child pornography. Prior to this law it was legal to possess such materials. The U.S. Postal Service began investigative operations to identify people in violation of the new law. They discovered that Keith Jacobson, a 56-year-old army veteran,
had received pornographic material during the time it was still legal. So they began an
operation designed to induce Jacobson to purchase illegal materials. They created scam
companies and inundated Jacobson with advertisements and inducements to purchase
the now illegal materials. They badgered him for twenty-six months. The Postal Service,
along with the U.S. Customs Service, even sent him brochures suggesting that ordering
the materials was patriotic because he would be standing up for his constitutional rights.
Ultimately, Jacobson ordered some materials and was arrested. He was convicted in 1988
but appealed his case all the way to the U.S. Supreme Court. In 1992 the court overturned
his conviction and stated: “Law enforcement officials go too far when they implant in the
mind of an innocent person the disposition to commit the alleged offense and induce its
commission in order that they may prosecute” (Jacobson, 503 U.S. 540, 554).
Concept Check: Under what circumstances can a defendant successfully claim
entrapment?
Answer: To claim entrapment, defendants must admit to criminal conduct while convincing the
jury they had no criminal intent until law enforcement persuaded them to act. They must prove
they were not predisposed to commit the crime and would not have done so without law enforcement’s intervention.
Statutes of Limitations
Statutes of limitations refer to laws that prevent prosecution of some crimes if a specific
amount of time has passed without the prosecution of the suspect. The statues of limitations vary from state to state, because each state determines when a prosecution must
begin. For felonies other than murder, it is often a considerable period of time. It may vary
from 6 to as many as 25 years. It is also not unusual for a state to set longer periods for
more heinous offenses, such as rape, sex offenses involving children, and manslaughter
crimes. The time limitations for misdemeanors are often much lower, generally ranging
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from 6 months to 3 years. However, there are no statutes of limitations on murder. A
murderer can be brought to justice no matter how many years it takes to catch him or her.
For example, consider a state with a statute of limitations of 7 years for burglary. One
night you come home and discover your house has been broken into and your television
has been stolen. You immediately report it to the police. They have no suspects. They
investigate but cannot determine who committed the crime. Nine years later, your television is found in the basement of a person who lives near you. The neighbor admits to
police that he broke into your house and stole your television, but he cannot be convicted
for the burglary because more than 7 years have passed since the discovery of the crime.
However, statutes of limitations can be more complicated, especially interpreting the
commencement of prosecution. Prosecution commences when the suspect is arrested or
when a warrant is issued. If police have determined who committed a crime and obtained
a warrant for the person’s arrest, prosecution has commenced even though the suspect
has not yet been arrested. In this case the statute of limitations defense is not available.
The time period is also satisfied if there is a summons, citation, indictment, or information
issued. Likewise, if the suspect makes an overt effort to hide, such as leaving the jurisdiction or disguising his or her identity, the time period does not count toward the statute
of limitations: that is, time stands still and is not included in that statute of limitations
calculation.
Civil statutes of limitations are relevant to civil cases and require that a person file a lawsuit within a specific period of time. Like the criminal version, the time limits vary according to the state and type of lawsuit.
Insanity
Sometimes, criminal defendants suffer from mental illness or other conditions that prevent them from being able to understand or control their actions. In these cases they
may be relieved from criminal liability under the insanity defense. This a very complicated defense, and its application and interpretation varies from state to state. The concept of the insanity defense is derived from the idea that society only criminally punishes
defendants who have the mental capacity to understand and control their behavior. The
criminal justice system is designed to provide treatment, rather than punishment, for such
offenders.
Criminal defendants who claim insanity ask to be excused from criminal liability due to
mental illness at the time of the offense. However they must not only show that they
suffer from mental illness but also that it is of such a nature that it prevents them from
understanding and controlling their behavior. It is generally proved by presenting evidence
of psychiatric and psychological evaluations from mental health professionals.
Some states provide for a not guilty by reason of insanity (NGRI) verdict in which the
defendant, though relieved from responsibility for the crime, will be committed to mental
health treatment until he or she recovers. The person’s release from a mental institution
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would be dependent on the success of his or her treatment. Therefore, a defendant who
was found not guilty by reason of insanity could actually spend more time in the treatment
institution than if he or she had been found guilty and sentenced to prison. Likewise, the
person might be released earlier if he or she were determined to be free from the mental
illness or defect. A few states use a guilty but mentally ill verdict. In those situations the
defendant is sentenced to the appropriate prison term for the crime but housed in a mental health treatment facility until he or she is able to join the general prison population.
Consider This: A True Story of Insanity
On Valentine’s Day in 1989, Raymond Butler decapitated his wife with a butcher knife in the kitchen
of their home in Fairfield, Ohio. At his trial he was found not guilty by reason of insanity and committed to a mental health treatment facility. Six years after his commitment, he was released after it
was determined that he was no longer mentally ill. The court has continued to monitor his progress.
Perhaps the most famous insanity defense involved John Hinckley Jr. In 1981 Hinckley shot
President Ronald Reagan, press secretary James Brady, police officer Thomas Delahanty,
and Secret Service agent Timothy McCarthy. All of the victims survived. Hinckley claimed
that an obsession with the actress Jodie Foster drove him to attempt to assassinate the
president, and he was found not guilty by reason of insanity. He is still institutionalized in
a mental health facility.
Concept Check: Serial killer Jeffrey Dahmer pleaded not guilty by reason of insanity. Many people, on learning of the facts of his case, certainly believed that he was
mentally ill. The evidence at trial—often Dahmer’s own statements—indicated that
he killed his victims, engaged in sexual acts with the corpses, dismembered them,
and even engaged in cannibalism. How is that not insane?
Answer: The jury determined that the methodical manner in which Dahmer lured his victims and
his tedious efforts to elude capture indicated that he understood the nature and wrongfulness of
his actions. They found him guilty, and he was sentenced to multiple life sentences.
Related to not guilty by reason of insanity is the competence to stand trial, which is different from the insanity defense. If prior to trial a judge determines the defendant is not
mentally capable of understanding the charges and assisting in his or her own defense,
the judge may rule the defendant incompetent to stand trial. This does not mean not
guilty and does not excuse the defendant from facing the charges. Rather, the defendant
will be committed to mental health treatment until he or she becomes competent. If the
defendant is restored to competence, the trial will proceed.
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There are certainly criminal offenders who suffer from mental illness or other diminished
mental capacities and are found guilty. While their mental issues may have not reached the
threshold of criminal insanity, their condition may be considered by a court to determine
their sentence. Correctional facilities also provide mental health treatment for inmates.
Career Spotlight: Forensic Scientist
by Erik Fritsvold
Ted Bundy is one of America’s most notorious serial killers, and he was eventually brought to justice largely due to
the work of forensic scientists. It is suspected that Bundy, a
budding law student, murdered between 40 and 50 young
women in the late 1960s and throughout the 1970s. Most
of Bundy’s murders involved kidnapping, torture, and sexual
assault. Bundy often wore a cast or feigned an injury to lure
and then abduct his victims. Most of his crimes took place
in the West; however, he was eventually arrested in Florida
after being stopped by police for driving a stolen car. Bundy
was convicted of breaking into the Chi Omega sorority house
at Florida State University (FSU) and brutally assaulting and
raping four young women, two of whom he killed (Tilstone,
Savage & Clark, 2006; Investigation Discovery, 2012).
ASSOCIATED PRESS
Forensic science proved critical in Bundy’s conviction. The Ted Bundy’s conviction was
surviving victims were unable to identify Bundy. There were due almost entirely to forensic
no useable fingerprint or other significant physical evidence scientists. DNA and scientific
linking Bundy to the crime, and DNA evidence was not yet an advancements have continued to
established science. The case hinged on the forensic science play a significant part in arrests
analysis of bite marks on one of the FSU murder victims, Lisa and prosecutions.
Levy. Forensic scientists were able to establish that Bundy had
a unique bite mark due to his many crooked, damaged, and chipped teeth. After obtaining a warrant,
a synthetic mold was made of Bundy’s teeth by forensic dentists that proved to be an exact match
to the marks on Levy. It is likely that Bundy would have avoided conviction without the bite-mark
evidence and corresponding forensic analysis. Bundy was executed on January 24, 1989 (Tilstone,
Savage, & Clark, 2006; Investigation Discovery, 2012).
According to the Encyclopedia of Forensic Science, “Forensic science is difficult to define precisely.
Broadly speaking, it is the application of scientific techniques and principles to provide evidence to
legal or related investigations and determinations” (Tilstone, Savage, & Clark, 2006, p. 1). Forensic
scientists help determine the elements of a crime by gathering and analyzing physical evidence from
the crime scene using a variety of laboratory techniques.
Forensic science technicians are often, but not always, sworn police officers who have an undergraduate degree in the natural sciences. In the formal or informal apprentice phase, this academic foundation is then applied through extensive mentoring and training in the field. Continued education
and retraining is necessary throughout this career to maintain a working and applicable knowledge
of evolving science and technology required for the profession.
(continued)
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Review Questions
CHAPTER 2
Career Spotlight: Forensic Scientist (continued)
According to the U.S. Department of Labor, there were 13,000 forensic science technicians employed
nationwide in 2010. This profession is expected to grow 19% in the next decade. On average, forensic
scientists earn approximately $51,500 annually, with the top 10% of wage earners earning almost
$83,000. In part due to the portrayal of forensic scientists in popular media, robust competition is
expected within this field (US Department of Labor, 2012).
Forensic scientists must possess a series of important scientific and interpersonal skills. They must be
able to solve problems using the scientific method, be detail oriented, be effective communicators,
and most importantly possess a durable mentality to be able to manage the grisly elements of some
crime scenes.
References
Investigation Discovery (2012). Amazing cases. Retrieved from http://investigation.discovery
.com/investigation/forensics/amazing-cases/amazing-cases.html
Tilstone, W. J., Savage, K., & Clark, L. (2006). Encyclopedia of forensic science: An encyclopedia of history, methods, and techniques. Santa Barbara, CA: ABC-CLIO.
US Department of Labor, Bureau of Labor Statistics. (2012). Occupational outlook handbook, 2012–13 edition: Forensic science technicians. Retrieved from http://www
.bls.gov/ooh/life-physical-and-social-science/forensic-science-technicians.htm
#tab-2
2.5 Chapter Highlights
• The federal government and each state drafts specific criminal statutes that apply
to their individual jurisdictions. The published statutes are available online in
most jurisdictions.
• Each criminal offense includes several components, including the offender, victim, act committed or omitted, the resulting harm, and applicable penalties.
• To convict a defendant of a crime, the prosecution must prove the defendant has
committed all of the required elements of the offense.
• Most criminal offenses include a culpable mental state as an element. These mental
states are intentionally, knowingly, recklessly, or negligently. However, some crimes
are strict liability offenses that do not require proof of a culpable mental state.
• The affirmative criminal defenses include self-defense, mistake of fact, privilege,
alibi, statute of limitations, entrapment, and insanity.
Review Questions
1.
2.
3.
4.
5.
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Identify and describe the components of a criminal statute.
Identify and define the culpable mental states.
Explain the difference between motive and mental state.
Identify and describe the affirmative defenses to a criminal charge.
Explain key differences between not guilty by reason of insanity and incompetence to stand trial.
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Key Terms
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Key Terms
actus reus A Latin term meaning “the
guilty act.” It is the specific action or omission required to commit a criminal offense.
intentionally A person acts intentionally
if it is his or her specific intention or purpose to cause a certain result.
affirmative defense A defense that, if
determined to be true, would relieve the
defendant of guilt. The defendant has the
burden of proving the affirmative defense
by clear and convincing evidence. Selfdefense, insanity, and mistake of fact are
all affirmative defenses.
mens rea A Latin term that means “guilty
mind.” It is often used to describe the
idea that what is in a person’s mind is a
required element of a criminal act.
alibi An affirmative defense in which the
defendant was somewhere other than the
crime scene at the time of the crime, making it impossible for the defendant to have
committed the crime.
bigamy A criminal offense in which a
person marries more than one person at
the same time.
mistake of fact A defense alleging that,
due to a misunderstanding of a fact or
circumstance, an offender honestly did not
realize he or she was committing a crime
and therefore lacked specific criminal
intent. This defense can result in a reduced
charge or even a not guilty decision.
motive A person’s reason or motivation
for committing a crime.
codified A law that has been passed by a
legislative body and included in the official code of that specific jurisdiction.
negligence Negligence occurs when a person fails to adhere to a standard of care or
expected behavior. Although rarely used
in criminal cases, it is a common cause of
action in civil tort law.
criminal liability The responsibility for
committing a crime.
offender A person who has committed a
crime.
entrapment An affirmative defense that
claims the government placed the criminal intent into the otherwise innocent and
unwary mind of the defendant.
omission to act A person fails to perform
a duty for which he or she is responsible. A
police officer who failed to make an arrest
when it was his or her legal duty has committed an omission to act.
fencing A slang term that refers to someone who buys stolen property.
knowingly An offender acts knowingly
when he or she is aware that his or her
conduct will cause a certain outcome, that
it is of a specific nature, or that certain
circumstances exist.
insanity defense A defense that claims the
defendant suffered from a mental defect
or illness that prevented him or her from
understanding or controlling his or her
actions.
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penalty classification The identification
of a crime as a specific degree of felony
or misdemeanor in a way that defines the
punishment for the crime. For example,
a crime may be classified as a first degree
felony or a third degree misdemeanor.
privilege A right conferred by status,
position, or license. A person with a concealed carry license has a privilege to carry
a firearm.
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Key Terms
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recklessly A person acts reckless when
he or she ignores or disregards a known
risk and knows that a certain result would
likely occur.
statutes of limitations Statutes that bar
prosecution if a specific amount of time
has passed after the discovery of a crime
and the commencement of prosecution.
self-defense A defense that allows a person to use reasonable and necessary force
to protect themselves and others.
strict liability A person or party is responsible for his or her actions regardless of his
or her culpable mental state. It would not
matter whether he or she intended the act.
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8
iStockphoto/Thinkstock
Criminal Procedure
Learning Objectives
After reading this chapter and studying the materials, you should be able to:
1. Identify the sources of law that influence the rules of criminal procedure.
2. Identify the facts, reasoning, and decision in a U.S. Supreme Court opinion.
3. Describe the history and development of due process on the U.S. justice system.
4. Define the exclusionary rule and identify the exceptions.
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T
he system of criminal procedure is an ongoing work in progress, one that both
reflects the intent of the nation’s founders and is constantly interpreted to be relevant to modern society and technology. The men who drafted the Constitution
lived in an era in which cars did not exist, but they wrote a Constitution that would later
be applied to car searches. Even further from their imagination was the Internet and its
related privacy issues; or cell phones; or YouTube. Yet Americans continue to rely on the
U.S. Constitution to balance the scales of justice for these and other kinds of criminal
cases.
In the previous chapters, you studied the substantive criminal law by analyzing and interpreting the elements of criminal statutes and determining how they apply to behavior.
Going forward we will examine criminal procedure, which is quite different. Criminal procedure dictates the rules by which our criminal laws are enforced.
8.1 Introduction to Criminal Procedure
P
olice perform many duties while protecting and serving communities, and chief
among these are investigating criminal activity and making arrests. However,
although police are expected to apprehend criminals, they are not allowed to execute their duties without any restrictions. They may not break into your house at any
time to search for evidence, for example, or arrest you without reason and beat you to
obtain a confession. Whether or not a person is guilty, police must abide by certain rules
when investigating, apprehending, and processing them: Criminal procedure is the study
of those rules. The police, the defense lawyers, the suspects, the judges, the witnesses,
the victims, and whoever else is involved in the drama of crime and punishment must follow the rules of criminal procedure. The rules address issues such as search and seizure,
trial process, and interrogation. They dictate when the police may pull people over, when
they may search suspects’ cars or property, when they may ask suspects questions, and
when they must read suspects their Miranda rights. The following chapters will go into
more detail about these and other issues.
Sources of Criminal Procedure
How were the rules of criminal procedure determined? Who wrote them, and why? Criminal statutes are drafted by local, state, and federal legislatures. Legislative representatives decide what behaviors should be considered criminal in their particular jurisdictions.
However, appellate courts primarily develop and determine the rules of criminal procedure. In Chapter 1, you examined the structure and function of both state and appellate
courts. Most of the rules of criminal procedure are created when the U.S. Supreme Court
interprets and applies the U.S. Constitution. Sometimes, state supreme courts apply their
own state constitutions as well. State legislatures often codify the rules set by the appellate courts and occasionally draft rules specific to their state. A rule is codified when it is
approved and included in the state code.
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At both the state and local level, state legislators or even the local court systems enact
some rules. For example, while the U.S. Supreme Court has determined the criteria for
speedy trial, some individual states have enacted specific statutory time limits. That is
legal as long as the state rules comply with the U.S. Supreme Court’s criteria.
As discussed in Chapter 1, there are three branches of government in the United States;
executive, legislative, and judicial. The U.S. Supreme Court sits at the top of the judicial
branch. It is the court’s duty to interpret and apply the U.S. Constitution.
The Decision Process of the U.S. Supreme Court
How and why does the U.S. Supreme Court create a rule of criminal procedure? The court
is a body of nine justices appointed by the president of the United States with the advice
and consent of the U.S. Senate. To create criminal procedure, the justices do not simply
confer and decide to write a law. They can only act in their role as the ultimate appellate
court, which means rendering a decision when a case is presented to them for review.
The Supreme Court only enters the criminal procedure process long after a crime occurs
somewhere in the United States. The crime will be investigated, which might include evidence collection, interrogation, pretrial identification procedures, and questioning witnesses. If there is an arrest, the case will follow the trial process in the jurisdiction in
which the crime occurred. A number of court proceedings will also take place prior to
trial, such as bail determinations, preliminary hearings, arraignments, pretrial conferences, and pretrial motions. At trial, the judge will make other decisions, such as whether
evidence is admissible, who is eligible to be selected for the jury, and whether attorneys may use a certain manner of questioning.
The judge will also give specific instructions
to the jury regarding what evidence they may
consider and how they may act. In the event
of a guilty verdict, a sentence is determined.
A guilty defendant may wish to appeal in the
event he or she believes the police or courts
violated the rules of criminal procedure. The
case would then follow that jurisdiction’s
appellate process.
At the state level, this involves appealing to the
state court of appeals and the state supreme
court. At this point, the losing party may appeal
to the U.S. Supreme Court, which is a court of
discretion and does not have to review a case.
The appealing party asks the court to review
the case by submitting a petition for a writ of
certiorari. The court first determines if it will
consider the case. If it refuses, the decision of
the previous appellate court stands. If it agrees
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Getty Images
All paperwork, including legal briefs, must
flow through the clerk’s office before
reaching the Supreme Court justices.
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to review, however, the involved attorneys must submit legal briefs, written documents
that argue their particular positions. Each of the nine justices read and consider the arguments presented in the briefs before attorneys, usually a state prosecutor and a defense
attorney, are allowed to appear before the court to argue their positions orally. Unlike
other court proceedings, hearings before the Supreme Court are not trials. No testimony
or evidence is presented. The hearing consists of lawyers presenting their arguments to
the court. The individual justices may also ask them probing questions.
After oral arguments, the justices confer and deliberate on the issues at hand. The deliberation process often takes several months. Once they reach a decision, they announce
their decision in open court and provide a written opinion that details their reasoning for
the decision.
Reading Cases
Lower courts, judges, lawyers, police, and students learn criminal procedure by reading
the case decisions (also called opinions) of appellate courts, and especially U.S. Supreme
Court decisions. The U.S. Supreme Court official publication is called the U.S. Reports.
Most of the cases cited in the book you are reading can be found by searching for the case
name in an online database. For example, if you type Miranda v. Arizona into the search
box, you will find many links to this 1966 landmark case’s decision. Some websites provide the entire opinion, while others may have
brief explanations or interpretations. The official decisions of the U.S. Supreme Court may
be found at the court’s website, http://www
.supremecourt.gov.
ASSOCIATED PRESS
In 1961 Clarence Earl Gideon, pictured
here, was wrongly charged with burglary
and denied an attorney by the state of
Florida. Gideon appealed to the U.S.
Supreme Court. In the landmark decision
known as Gideon v. Wainwright, the court
ruled that all defendants have the right to
an attorney, regardless of their ability to
pay for one.
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Each case has a case name and a case citation:
an example is Miranda v. Arizona 384 U.S. 436
(1966). Together the citation numbers tell the
legal researcher where to look in the law library.
The “384” is a book number of the U.S. Reports,
and the “436” is simply the beginning page number. The number in parentheses is the year in
which the case was decided, and “U.S.” indicates
this is a decision of the U.S. Supreme Court.
The case title imparts at least some information
about the case. For example, if it is a criminal
case and includes the name of a state, then it
is a criminal case that originated in that state—
it would not be a federal case. If it had been a
federal case, it might have been titled Weeks v.
United States. The other word listed is the last
name of one of the defendants. In this case the
defendant was Fremont Weeks.
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But the name of a case does not always impart all of this information. A case might simply be titled State v. Johnson or People v. Smith. If so, one would need to look further to
determine the state in which the case originated. Other times a case title may only have
two individuals’ names; for example, the famous case of Gideon v. Wainwright was from
Florida. Gideon was the criminal defendant who sued Louie L. Wainwright, the secretary
to the Florida Department of Corrections, in a habeas corpus action. Later in this chapter
you will study a case called Brewer v. Williams. In that case Williams was the defendant
and Brewer was an attorney general of the state of Iowa.
Each case decision will go over the particular set of facts that were presented during the
hearing or trial. It will summarize the crime, relevant police actions, and court procedures
being addressed in the court’s review.
Case reports also feature the decision, which is sometimes summarized at the beginning
of the opinion and then again in a summary at the end. The decision is the piece of the
opinion that explains how the court has interpreted and applied the law. The decision
states what actions, if any, must next be taken in the case and also addresses any specific
procedures to be followed in the future.
In addition to the decision, the opinion describes and explains the court’s reasoning in
reaching its decision. The reasoning helps lower courts, police, and lawyers understand
how to apply the decision in future cases.
Rarely do the U.S. Supreme Court justices unanimously agree on a decision. More often,
they reach their decision by majority rule. If at least five of the nine justices agree, they
have reached a majority opinion. One justice serves as the primary writer of the opinion.
The justices who disagree may write dissenting opinions indicating why they diverge from
the majority. While dissenting opinions are not law, they are often helpful in interpreting
the court’s actions. Case decisions may also feature a concurring opinion, in which justices
write about how they agree with the decision, but for a different reason than the majority.
The Role of the Constitution
The U.S. Constitution forms the basis of criminal procedure (each state also has its own
constitution). While state constitutions often parallel the U.S. Constitution, there are
some differences. We will discuss the relationship between state and federal government
in more detail when we examine the historical development of criminal procedure.
Consider the founding of the United States. The first settlers from England sought escape
from the oppression of the English government. They declared independence and won
the Revolutionary War, after which they began to form the federal government. The constitutional forefathers wanted to protect their new country’s citizens from their government. They believed it important for the government to provide certain services and protections and also to protect individual liberties. With these priorities, they signed the U.S.
Constitution in 1787 and adopted the first 10 amendments, called the Bill of Rights, 4
years later. Criminal procedure’s roots are found in the Bill of Rights, which addresses
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fundamental principles such as protection against unreasonable search and seizure, double jeopardy, self-incrimination, excessive bail, the right to a jury trial, effective counsel,
and confrontation of witnesses.
The scales of justice symbolize the American system of justice. On one side there is the
need for the government to enforce laws and protect its citizens. On the other is citizens’
individual liberty and freedom. This balance is the premise on which America’s constitutional law is founded. In virtually every case, the U.S. Supreme Court must balance the
actions of the government and law enforcement against peoples’ individual freedoms and
right to privacy.
State Versus Federal Procedure
As indicated earlier, the United States is composed of multiple governments. The original
premise was that the country consist of individual states that retain all powers not specifically given to the federal government. As a result, there are often conflicts between
states’ rights and those of the federal government. Today an individual has certain basic
rights regardless of whether he or she is charged with a state or a federal crime, including
the right to an attorney, a lawful search, and a speedy trial. However, such rights did not
always apply to state criminal proceedings. Even though the Bill of Rights was ratified in
1791, federal rights did not always apply to the states.
Concept Check: How are the individual rights described in the Bill of Rights
applied to state criminal proceedings?
Answer: They are applied via the due process clause of the 14th Amendment. The Bill of Rights
is part of the U.S. Constitution. For many years states were not required to abide by those rules
because they were included in the U.S. Constitution and only applied to federal criminal cases.
The right to due process changed this, however, when in 1868 the United States adopted the 14th
Amendment.
The 14th Amendment states that all citizens of the United States are considered both
citizens of the nation as well as of the state in which they reside. But most importantly, it
states that a citizen cannot be deprived of life, liberty, or property without due process of
law. However, the passage of the 14th Amendment did not immediately apply those protections to the states. The U.S. Supreme Court had to interpret and apply those individual
rights. This process continues today.
8.2 Due Process
D
ue process is mentioned in both the 5th and 14th Amendments, yet neither
defines it. In fact, this critical concept is not defined anywhere in the Constitution,
and thus legal scholars have struggled to characterize it. Over time, the court has
considered what rights are mandatory in order to ensure due process. In other words, is
the right fundamentally necessary to ensure fairness?
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Ratified in 1868, Section 1 of the 14th Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws.
Adopted after the Civil War, the 14th Amendment clarified that the due process and equal
protection of the law guarantees enshrined in the Constitution would also apply to the
states. The 14th Amendment serves as the foundation for many subsequent cornerstone
decisions and laws.
Concept Check: Tessa is arrested for robbery. At her arraignment, she tells the
judge she does not have any money and needs an attorney. She faces prison if
convicted and says she is innocent of the crime. The judge says, “Unfortunately,
we don’t have enough money in our county budget to give every defendant a free
attorney.” Has due process been denied?
Answer: Yes. Tessa has been denied due process of law. She cannot possibly get a fair trial if she
does not have an attorney to represent and defend her on those serious charges.
In the United States all criminal defendants who face incarceration are entitled to an attorney. If they are indigent, or unable to afford one, the government must provide them with
effective assistance of counsel. However, such individual rights were not applied overnight, but rather over a series of cases in which the court historically applied due process.
Is Beating a Prisoner a Violation of Due Process?
Often called an American travesty, the case of Brown v. State of Mississippi paints a grim
picture of a dark period of police interrogation in the United States. From a legal standpoint it also illustrates the beginning of the U.S. Supreme Court’s journey to use due process to impact state criminal proceedings.
Brown v. State of Mississippi, 297 U.S. 278 (1936)
The Facts: Brown v. State of Mississippi considered the murder of Raymond Stewart, a
white plantation owner who was found dead on the afternoon of March 30, 1934. Almost
immediately, law enforcement suspected three black tenant farmers—Henry Shields, Ed
Brown, and Arthur Ellington. That evening Deputy Sheriff Dial arrested Ellington and took
him not to jail but to the victim’s home, where a crowd was waiting. Ellington denied
he was involved with the murder, but the crowd strung him up to a tree, where they
whipped him. After he continued to claim innocence, they cut him down, rehanged him,
and whipped him more. After continuing to deny his involvement, the crowd cut him
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down and let him go. He returned home, in pain and agony, only to be arrested again
by Dial 2 days later. On the way to take him to jail, Dial drove into Alabama, where he
whipped him until Ellington finally confessed.
In the meantime, Shields and Brown were also arrested and taken to jail. There, deputies
whipped them until they confessed to exactly what the deputies told them to confess to.
Of these events the Supreme Court said:
On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came
to the jail, and the two last named defendants were made to strip and
they were laid over chairs and their backs were cut to pieces with a leather
strap with buckles on it, and they were likewise made by the said deputy
definitely to understand that the whipping would be continued unless and
until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed to the crime, and, as the whippings progressed and were
repeated, they changed or adjusted their confession in all particulars of
detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by
the mob, they left with the parting admonition and warning that, if the
defendants changed their story at any time in any respect from that last
stated, the perpetrators of the outrage would administer the same or
equally effective treatment. (Brown v. State of Mississippi, 1936)
All three men were indicted on April 4, 1934; the trial commenced the next day. They
were asked if they had counsel and they stated that counsel would not help them at that
point. Counsel was appointed.
When Dial was asked under oath if he whipped Ellington, he said, “Not too much for a
negro; not as much as I would have done if it were left to me.” No one denied the whippings and torture, and the trial court condoned it by allowing the confessions into evidence. Within 48 hours all three men were convicted and sentenced to death.
In 1934 the Fifth Amendment (which protects a defendant from being compelled to be a
witness against themselves) did not yet apply to the states. Because the crime occurred
in Mississippi, criminal procedure belonged to the state, and the men were arrested on a
state murder charge. Brown, Ellington, and Shields appealed their conviction to the Mississippi Court of Appeals. That court upheld their conviction, essentially saying Mississippi
could do what it wanted. The men appealed to the Mississippi Supreme Court, with the
same result.
The Decision: The U.S. Supreme Court agreed to review the case and used the due process clause of the 14th Amendment to overturn the state’s conviction. Their decision
read, in part:
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But the freedom of the state in establishing its policy is the freedom of
constitutional government and is limited by the requirement of due process of law.
The due process clause requires “that state action, whether through one
agency or another, shall be consistent with the fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions.” Hebert v. Louisiana, 272 U.S. 312, 316, 47 S. Ct. 103, 104, 48 A.L.R.
1102. It would be difficult to conceive of methods more revolting to the
sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process. (Brown v. State of
Mississippi, 1936)
The justices ruled that even though this was a state case, all citizens of the United States
are entitled to due process; using torture to compel a confession violated this right, and
any evidence obtained from such a confession could not be used in court. This case helped
define due process, and also signaled that the U.S. Supreme Court had begun to regulate
state behaviors.
The case was remanded to Mississippi with instructions that the coerced confessions
could not be used in evidence. Rather than face the risk of a new trial, all three defendants
pleaded guilty to less serious manslaughter charges.
8.3 The Exclusionary Rule
T
he exclusionary rule was developed by the U.S. Supreme Court. It excludes illegally obtained evidence from being considered during a trial. In this section you will
examine its history and development, why and how it was ultimately applied to the
states, and its exceptions.
The exclusionary rule was not applied to the states until 1961. However, the Supreme
Court did exclude evidence in a few state cases because the police conduct violated the
defendant’s right to due process of law. Consider, for example, a case called Rochin v. California 342 U.S. 165 (1952), in which the Supreme Court reviewed police conduct in the
arrest and prosecution of Antonio Rochin.
Rochin v. California, 342 U.S. 165 (1952)
The Facts:
On the morning of July 1, 1949, three Los Angeles County deputy sheriffs
went to the home of Antonio Rochin. The police did not have a search
warrant but had some information that Rochin was selling narcotics. Finding the outside door open, they entered the dwelling. They went to the
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second floor, where they forced open the door to Rochin’s room. They
found Rochin sitting partly dressed on the side of the bed, where his wife
was lying. One of the deputies noticed two capsules on a night-stand and
asked, “Whose stuff is this?” Rochin grabbed the capsules and put them
in his mouth. The three deputies then wrestled with Rochin and sought to
open his mouth so they could extract the pills. When this failed, the deputies handcuffed Rochin and took him to a hospital, where at their direction
a doctor forced an emetic solution through a tube into Rochin’s stomach.
The solution induced vomiting, and in the vomited matter the deputies
found two morphine capsules. (Rochin v. California, 1952)
In 1949 California lacked an exclusionary rule, so even evidence obtained illegally was
admissible in court. They were not alone, as the exclusionary rule was not required of
states until 1961, meaning that states were not required to exclude evidence from trial
just because it was illegally seized. The morphine evidence in the case above, however,
was illegally seized. The cops broke into Rochin’s house without a warrant, tried to physically force open his mouth, arrested him, and pumped his stomach against his will. Though
illegal, the state was allowed to admit the evidence because it was not yet beholden to
the exclusionary rule.
The trial judge allowed the evidence, and Rochin was convicted. He appealed his case
through the California appellate system and lost, at which point the U.S. Supreme Court
agreed to hear the case. The court, which ruled that police misconduct had deprived the
suspect of his right to due process, said:
Applying these general considerations to the circumstances of the present
case, we are compelled to conclude that the proceedings by which this
conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically.
This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what
was there, the forcible extraction of his stomach’s contents—this course
of proceeding by agents of government to obtain evidence is bound to
offend even hardened sensibilities. They are methods too close to the rack
and the screw to permit of constitutional differentiation. (Rochin v. California, 1952)
The Decision: The court ruled that the police misconduct in this case deprived Rochin of
his right to due process of law. This was one of the strongest messages the U.S. Supreme
Court had ever sent regarding police violation of a suspect’s rights. It let states know loud
and clear that the court would not hesitate to exclude evidence in their cases. The court
did not go so far as to say that all evidence obtained illegally must be excluded, but it
clearly stated that this case’s combination of police abuses and unlawfully collected evidence violated due process.
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From Where Does the Exclusionary Rule Stem?
While most rules of criminal procedure can be attributed in some way to the Bill of Rights,
the U.S. Supreme Court developed the exclusionary rule on its own. The U.S. Constitution entirely lacks language regarding consequences for violating individual rights or due
process, and although the Bill of Rights provides many protections that apply to criminal
prosecutions, it does not expressly indicate how to ensure these rights or how to handle
their violation. Criminal statutes dictate specific punishments for violations. The penalties
might include incarceration or fines. The Fourth Amendment states that the government
shall not conduct illegal searches. However it does not provide a penalty in the event the
amendment is violated. The Fifth Amendment protects us from compelled self-incrimination. It does not, however, identify the consequence. The U.S. Supreme Court created the
exclusionary rule as a remedy to the problem of police illegally obtaining evidence.
History of the Exclusionary Rule
The U.S. Supreme Court initially created the exclusionary rule in 1914 in the case Weeks
v. United States, 232 U.S. 383. Police had investigated Fremont Weeks for selling illegal
lottery tickets through the mail, and they twice searched his Kansas City home without a
warrant. The U.S. Supreme Court ultimately threw out the seized evidence and announced
that evidence illegally seized by law enforcement would be inadmissible for criminally
prosecuting violations of the U.S. Code. Because this was a federal case, however, the
court did not require the exclusion of evidence in state cases at this point in time.
Meanwhile, states were struggling with the problem of police violating citizens’ rights in
order to obtain evidence. Both illegal searches and unlawful interrogations were a continuing issue, in part due to the fact that many law enforcement officials were ignorant
of the rules of search and seizure. Prior to the early 1970s, when law enforcement was
professionalized, training and education opportunities were minimal and sporadic. Law
enforcement jobs seldom required any education, and many agencies hired individuals at
18 years of age with minimal qualifications. Beyond the larger cities, the little training that
existed focused on tactics instead of law. Some rural agencies provided no training at all.
New police officers might simply be hired, given a gun and badge, and put on the streets.
The lack of training and education often meant that police officers did not understand the
law and, in many cases, did not know they had violated the Bill of Rights. Then, in the early
1970s, some states and larger cities began requiring law enforcement agencies to provide
mandatory training on these issues for police officers. An influx of federal funding encouraged the creation of college criminal justice programs, which further helped encourage
training and education.
But prior to this, police often obtained evidence illegally, with few consequences. A few
states enacted their own exclusionary rules, but the majority did not. In 1949 the U.S.
Supreme Court warned states that this was becoming a problem when they heard the case
Wolf v. Colorado, 338 U.S. 25. This case pertained to Colorado police, who had obtained
evidence during an illegal search. Had Wolf been a federal case, the evidence would have
been excluded, and in fact, the defendant/appellant in Wolf was asking the U.S. Supreme
Court to apply the exclusionary rule to the states. The court refused, however, suggesting
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that while it was aware of the problem, it preferred to let individual states decide how
best to find a solution. The court hinted that civil and administrative remedies might be
required if the states did not want to adopt the exclusionary rule. In a sense the U.S.
Supreme Court warned the states that they needed to solve this critical legal problem.
The court changed its tune, however, in the 1961 case Mapp v. Ohio, when it finally
required states to adhere to the exclusionary rule. Feeling that it had given the states
ample opportunity to correct their problem, by 1961, the court had had enough.
Mapp v. Ohio, 367 U.S. 643 (1961)
The Facts: Dollree Mapp and her daughter lived on the top floor of a two-family home in
Cleveland, Ohio. On May 23, 1957, three police officers knocked on her door. They believed
a wanted person might be hiding out in her apartment and also that there might be some
evidence in her home. After calling her attorney, she refused to let them in since they did
not have a search warrant. They did not come in but continued to watch her house. Three
hours later, after conferring with their headquarters and being joined by at least four more
officers, they again knocked on her door. She refused again, but they forced their way
inside. Mapp’s attorney arrived, but the officers refused to let him see her. She demanded
to see a warrant, and the officers showed her a sheet of paper they claimed to be a warrant, but there was no evidence that it was. She grabbed it and stuffed it down her bosom.
The officers physically retrieved the paper and handcuffed her. The officers then searched
her home, including her child’s
room. Finally, after finding nothing, they searched a trunk in the
basement and discovered what
they identified as obscene material. She was charged with the illegal possession of obscene material, prosecuted, and convicted.
The Decision: The trial court, the
Ohio Court of Appeals, and the
Ohio Supreme Court all allowed
the admission of the illegally
obtained materials as evidence
ASSOCIATED PRESS
because the exclusionary rule did
The outcome of Mapp v. Ohio resulted in the U.S.
not apply to state criminal cases.
Supreme Court requiring the states to enforce the
Mapp therefore appealed her
exclusionary rule.
case to the U.S. Supreme Court,
which finally decided that the remedy of the exclusionary rule must apply to state criminal proceedings. The court determined that the states had failed to identify or enforce
solutions to the problem of police misconduct. To deter the police from illegally obtaining
evidence, the court dictated that in all criminal proceedings, illegally obtained evidence
could not be admitted.
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Mapp was one of the most significant criminal procedure cases in U.S. history. The decision forced police departments to improve their hiring and retention practices and to
update their training to include constitutional criminal procedure. Today the study of the
constitutional requirements is available in law enforcement academies and college criminal justice programs nationwide.
The Fruit of the Poisonous Tree Doctrine
The fruit of the poisonous tree refers to an extension of the exclusionary rule. Imagine a
beautiful apple tree full of leaves and glowing red apples. If you poisoned the tree’s roots
by pouring a dangerous herbicide into its soil, the apples would also be poisoned. Following the concept that if a tree is poisoned, so is its fruit, this doctrine excludes any evidence
that is discovered as a result of some previous illegality. Evidence that would not have
been discovered except for the previous or initial illegality is also excluded. For example,
if a police...
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