boh11536_ch02_025-057.indd Page 25 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles 2 Crime and Its Consequences L I D D E L L , Learning Objectives After completing this chapter, you should be able to: 1. Distinguish between a social definition and a legal definition of crime, and summarize the problems with each. 2. List the technical and ideal elements of a crime. 3. Identify some of the legal defenses or legal excuses for criminal responsibility. Chapter Outline Definitions of Crime Social Definitions A Legal Definition Elements of Crime T I F F A N Y Degrees or Categories of Crime Measurement of Crime 1 5 Crime Rates 6 Uniform Crime Reports (UCR) 8 National Incident-Based Reporting System (NIBRS) National Crime Victimization Surveys (NCVS) T S Self-Report Crime Surveys Crime Statistics 4. Explain why crime and delinquency statistics are unreliable. 5. Identify the two major sources of crime statistics in the United States. 6. Describe the principal finding of the national crime victimization surveys. 7. Summarize the general finding of self-report crime surveys. 8. Identify the costs of crime. 9. Describe the characteristics of people most likely to fear crime. 10. List the characteristics of people who are the most likely and the least likely to be victims of crime. Costs of Crime Fear of Crime What People Fear Who Fears Crime How People Respond to a Fear of Crime Victims of Crime Victimization Trends Who the Victims Are 25 boh11536_ch02_025-057.indd Page 26 10/06/11 4:02 AM user-f494 26 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice CRIME STORY J esse Bratcher (pictured) killed Jose Medina. What makes this case unusual is that Bratcher’s Oregon trial jury found him guilty but insane as a result of posttraumatic stress disorder (PTSD). In December 2009, he was sentenced to the custody of Oregon State Hospital psychiatrists rather than to prison. The precedent-setting ruling is believed to be the first time a military veteran has escaped a murder conviction by claiming to have suffered from PTSD. On the night of August 14, 2008, Bratcher’s fiancée, Celena Davis, told him that she was pregnant but the baby was not his. She told him that she had been raped by Medina two months earlier. Bratcher, a former Oregon National guardsman, who, in 2005–2006, had spent 11 months at Forward Operating Base Warrior in Kirkuk, Iraq, fell silent. He then went into the next room and put the barrel of an AK-47 in his mouth but decided not to commit suicide. Bratcher stayed up all night, cut Celena’s hair, made her walk about two miles to the hospital when she started getting cramps, and then went with her to get her name tattooed on him. The next day Jesse and Celena drove to the hardware store and, while FYI Crime The word “crime” is from the Latin crimen, meaning “accusation” or “fault.” Source: Webster’s New Twentieth Century Dictionary of the English Language Unabridged (Parsippany, NJ: Williams Collins, 1980). Celena waited in the truck, Jesse went Administration hospital several times in and bought a gun. When he got back complaining of PTSD. Doctors rejected to the truck, he loaded the gun and his first claim of PTSD, but later asked Celena, “Do we go to the police, declared him 70 percent and then 100 or do we go find the guy?” They went percent disabled. They sent him home to the police station, but it was with medication to calm him down and Saturday and the main door was help him sleep. The jury bought the locked. They did not realize that an L emergency door was located on the I side of the building. They then drove to D to Jose Medina’s trailer. According Medina’s friends and family, D Medina, a divorced father of three, once had a E relationship with Celena. However, L when confronted by Bratcher, Medina L but later at first denied knowing Celena admitted knowing her and,having con- defense and convicted Bratcher of mur- sensual sex with her. Medina told backward. Medina’s family does not Bratcher that if the baby was his, he understand why Jose’s killer is not would take care of it. Bratcher being punished. T I six responded by shooting Medina times; the final shot killed F him. At his murder trial, the prosecutor F argued that the one-time grocery clerk A had hunted down and killed Medina. Ncountered Bratcher’s defense attorney that his client had experienced Y flash- der by reason of insanity due to PTSD. According to Oregon law, Bratcher could have been convicted of firstdegree manslaughter had the jury found him a sane person acting in the heat of passion. A month after the shooting, Bratcher and Davis got married in the jail. They now have a daughter named Nevaeh—which is heaven spelled Among the topics discussed in Chapter 2 are legal defenses for criminal responsibility. Should PTSD be a legal defense for criminal responsibility? Can PTSD cause insanity and impair a person’s ability to control his or her actions? Do you believe the murder of backs from PTSD during his stressful Jose Medina was caused by Bratcher’s confrontation with Medina and, there- PTSD? Why or why not? Do you believe fore, was not in control of his actions. A that Jesse Bratcher should have been 1 sociologist who testified at5the trial characterized Bratcher as6“a walking time bomb.” Following his tour of duty in 8 Iraq, Bratcher went to the Veteran’s T S punished more severely? Why or why not? The answers to these questions reveal much about crime and its consequences. Definitions of Crime The object of criminal justice in the United States is to prevent and control crime. Thus, to understand criminal justice, one must understand crime. An appropriate definition of crime, however, remains one of the most critical unresolved issues in criminal justice today. One problem is that many dangerous and harmful behaviors are not defined as crimes, while many less dangerous boh11536_ch02_025-057.indd Page 27 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences 27 and less harmful behaviors are. We begin, then, by examining how crime is defined and the problems with defining what a crime is. SOCIAL DEFINITIONS The broadest definitions of crime are social definitions. A typical social definition of crime is behavior that violates the norms of society—or, more simply, antisocial behavior. A norm is any standard or rule regarding what human beings should or should not think, say, or do under given circumstances. Because social definitions of crime are broad, they are less likely than narrower definitions to exclude behaviors that ought to be included. Nevertheless, there are several problems with social definitions of crime. First, norms vary from group to group within a single society. There is no uniform definition of antisocial behavior. Take, for example, the acts involved in gambling, prostitution, abortion, and homosexual behavior. As current public debates indicate, there is much controversy inLthe United States over whether those acts should be crimes. Even with actsIabout which there seems to be a consensus, like murder and rape, there is no agreement on what constitutes such acts. For example, if a patient dies from D a disease contracted from a doctor who did not wash his or her hands before examining the patient, has D the doctor committed murder? Or, if a man has forcible sexual intercourse with a woman against her will but, before the act, at the E woman’s request, puts on a condom so that the woman will not get a sexually transmitted disease, has L difficulty of determinthe man committed rape? Those examples illustrate the ing what, in fact, constitutes antisocial behavior, let L alone crime. Second, norms are always subject to interpretation. Each norm’s meaning has a history. Consider abortion, for example. For ,some people, abortion is the killing of a fetus or a human being. For other people, abortion is not killing because, for them, human life begins at birth and not at conception. For the latter group, the abortion issue concerns women’s freedom to control T their own bodies. For the former group, abortion constitutes an injustice to I the helpless. Third, norms change from time to time and from F place to place. For example, the consumption of alcohol was prohibited in the United States during F Until the passage of the the 1920s and early 1930s but is only regulated today. Harrison Act in 1914, it was legal in the United States A to use opiates such as opium, heroin, and morphine without a doctor’s prescription. Such use is proN hibited today. Casino gambling is allowed in some states but forbidden in other states. Prostitution is legal in a few counties in Nevada butYillegal in the rest of the United States. Prior to the mid-1970s, a husband could rape his wife with impunity in all but a handful of states. Today, laws in every state prohibit a 1 husband from raping or assaulting his wife. 5 A LEGAL DEFINITION 6 In an attempt to avoid the problems with social defi 8nitions of crime, a legal definition of crime is used in criminal justice in the United States. A typical T of the criminal law or legal definition of crime is this: an intentional violation penal code, committed without defense or excuse and S penalized by the state. The major advantage of a legal definition of crime, at least on the surface, is that it is narrower and less ambiguous than a social definition of crime. If a behavior violates the criminal law, then by definition it is a crime. However, although a legal definition eliminates some of the problems with social definitions of crime, a legal definition of crime has problems of its own. First, some behaviors prohibited by the criminal law arguably should not be. This problem of overcriminalization arises primarily in the area of socalled victimless crimes. Lists of victimless crimes typically include gambling, prostitution involving consenting adults, homosexual acts between consenting adults, and the use of some illegal drugs, such as marijuana. norm Any standard or rule regarding what human beings should or should not think, say, or do under given circumstances. legal definition of crime An intentional violation of the criminal law or penal code, committed without defense or excuse and penalized by the state. overcriminalization The prohibition by the criminal law of some behaviors that arguably should not be prohibited. boh11536_ch02_025-057.indd Page 28 10/06/11 4:02 AM user-f494 28 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice Ultimately, whether those acts should or should not be prohibited by criminal law depends on whether they are truly victimless—an issue we will not debate here. Perhaps less controversial are some of the following illegal behaviors: • It is illegal for a driver to be blindfolded while operating a vehicle in Alabama. • In California, it is illegal to trip horses for entertainment, to possess bear gall bladders, or to peel an orange in your hotel room. • It is illegal to throw shoes at weddings in Colorado. • In Connecticut, it is illegal to walk across the street on your hands. • Women in Florida may be fined for falling asleep under L a hair dryer, as can the salon owner. • Idaho state law makes it illegal for a man to give I sweetheart a box of candy weighing less than his 50Dpounds. • It is illegal to take a bath in the wintertime in Indiana. D • Kisses may last for as much as, but no more than, 5E minutes in Iowa. • InLMichigan a woman isn’t allowed to cut her own hair without her husband’s permission. • ItLis illegal to slurp soup in New Jersey. • Beer , and pretzels can’t be served at the same time in any bar or restaurant in North Dakota. • Violators in Oklahoma can be fined, arrested, or jailed for making ugly faces at a dog. More and more states are legalizing casino gambling as a means T • The state law of Pennsylvania prohibits singing in of generating income. Is this a desirable trend? Why or why not? the I bathtub. • In South Dakota, a woman over 50 is not allowed toFgo outside and strike up a conversation with a married man older than 20. F • In Tennessee it is illegal to shoot any game other than whales from a moving automobile. A • In Texas, it is illegal to take more than three sips of beer at a time while N standing. • It is an offense in Washington state to pretend your parents are rich.1 Y nonenforcement The failure to routinely enforce prohibitions against certain behaviors. undercriminalization The failure to prohibit some behaviors that arguably should be prohibited. A second problem with a legal definition of crime is that for some behaviors prohibited by criminal law, 1 the law is not routinely enforced. Nonenforcement is common for many white-collar and government crimes. It is also common 5 those that require stores and other commercial for blue laws, for example, establishments to be closed on Sundays. Many jurisdictions in the United 6 States have blue laws, or they did until recently. The principal problem with the nonenforcement of prohibitions is that it causes disrespect for the law. 8 People come to believe that because criminal laws are not routinely enforced, T obey them. there is no need to routinely A third problem with S a legal definition of crime is the problem of undercriminalization. That is, some behaviors that arguably should be prohibited by criminal law are not. Have you ever said to yourself that there ought to be a law against whatever it is you are upset about? Of course, most of the daily frustrations that people claim ought to be crimes probably should not be. Some people argue, however, that some very harmful and destructive actions or inactions that are not criminal should be. Examples include the government allowing employers (generally through the nonenforcement of laws) to maintain unsafe working conditions that cause employee deaths and injuries, and corporations’ intentional production of potentially hazardous products to maximize profits.2 boh11536_ch02_025-057.indd Page 29 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences 29 ELEMENTS OF CRIME A legal definition of crime is the basis of criminal justice in the United States. The legal definition of crime provided earlier in this chapter, however, is only a general definition. It does not specify all the elements necessary to make a behavior a crime. Technically and ideally, a crime has not been committed unless all seven of the following elements are present.3 1. 2. 3. 4. 5. 6. 7. Harm Legality Actus reus Mens rea Causation Concurrence Punishment L Only in a technical and ideal sense must all seven Ielements be present. In practice, a behavior is often considD Ever since criminal sanctions were established for illegal drug use, ered a crime when one or more of the elements of crime some have argued for decriminalization by elimination or reduction D are absent. We will examine each of the seven elements of criminal penalties for possession or distribution of certain drugs. in turn, indicating exceptions to the technical and the E Do you agree with this argument? Why or why not? ideal where relevant. L Harm For crime to occur, there must be an external L consequence, or harm. A harm The external consequence mental or emotional state is not enough. Thus, thinking about committing a required to make an action a crime. , acting on the thought or crime or being angry enough to commit a crime, without the anger, is not a crime. The harm may be physical or verbal. Physically striking another person without legal justification is an example of an act that Tdoes physical harm. An example of an act that does verbal harm is a threat to strike another person, I whether or not the threat is carried out. Writing something false about another person that dishonors or injures that person is a physical harm called libel. F The spoken equivalent of libel is called slander. Whether the legal element of harm is present inFall crimes is sometimes questioned. Some crimes, such as gambling, prostitution, marijuana consumpA tion, and certain consensually committed sexual acts such as sodomy, have come to be called “victimless crimes” by those who N argue that only those people involved in these behaviors are harmed, if at all. Other people maintain Y of society are jeoparthat the participants, their families, and the moral fabric dized by such behavior. In short, there is considerable debate as to whether so-called victimless crimes really are harmless. 1 Legality The element of legality has two aspects. First,5the harm must be legally forbidden for a behavior to be a crime. Thus, violations of union rules, school rules, religious rules, or any rules other than those of a6political jurisdiction may be “wrong,” but they are not crimes unless they are also 8 prohibited by criminal law. Furthermore, rude behavior may be frowned upon, but it is not criminal. Second, a criminal law must not be retroactive, orT ex post facto. An ex post facto law (1) declares criminal an act that was not illegal when it was comS mitted, (2) increases the punishment for a crime after it is committed, or (3) alters the rules of evidence in a particular case after the crime is committed. The first meaning is the most common. The U.S. Constitution (Article I, Section 10.1) forbids ex post facto laws. Actus reus The Latin term actus reus refers to criminal conduct—specifically, intentional or criminally negligent (reckless) action or inaction that causes harm. Crime involves not only things people do but also things they do not do. If people do not act in situations in which the law requires them to act, they are committing crimes. For example, parents are legally required to provide their legality The requirement (1) that a harm must be legally forbidden for the behavior to be a crime and (2) that the law must not be retroactive. ex post facto law A law that (1) declares criminal an act that was not illegal when it was committed, (2) increases the punishment for a crime after it is committed, or (3) alters the rules of evidence in a particular case after the crime is committed. actus reus Criminal conduct— specifically, intentional or criminally negligent (reckless) action or inaction that causes harm. boh11536_ch02_025-057.indd Page 30 10/06/11 4:02 AM user-f494 30 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice children with adequate food, clothing, and shelter. If parents fail to provide those necessities—that is, if they fail to act when the law requires them to—they are committing a crime. mens rea Criminal intent; a guilty state of mind. negligence The failure to take reasonable precautions to prevent harm. Mens rea The Latin term mens rea refers to criminal intent or a guilty state of mind. It is the mental aspect of a crime. Ideally, criminal conduct is limited to intentional or purposeful action or inaction and not to accidents. In practice, however, reckless actions or negligence may be criminal. Negligence is the failure to take reasonable precautions to prevent harm. In some cases, offenders lack the capacity (sometimes called competence) to form mens rea. If they do not have that capacity, they are not to be held responsible for their criminal conduct. If they have a diminished capacity to form mens rea, they are to be held less than fully responsible. In other cases, offenders who have the capacity to form mens rea are not held responsible for their crimes or are held less responsible for them, either because they did not L have mens rea when they acted or because there were extenuating circumstances when they did actI with mens rea. D considered responsible or D is considered less responsible for an offense if he or she, for example, (1) acted under duress, (2) was underage, (3) was insane, (4) acted E of a third party, (5) was entrapped, or (6) acted out in self-defense or in defense of necessity. Those conditions L are legal defenses or legal excuses for criminal responsibility. L to commit a crime but was forced or coerced to do If a person did not want so against his or her will,,he or she committed the crime under duress and is generally excluded from criminal liability. Suppose that an intruder held a gun Legal Defenses for Criminal Responsibility In the United States, an offender is not duress Force or coercion as an excuse for committing a crime. FYI Legal Infancy On July 29, 2010, an Indianapolis, Indiana, 4-year-old boy picked up a loaded .45-caliber handgun that had been left on the kitchen table and shot and killed a 3-year-old girl in front of his siblings. Because of his age, he likely will not be charged or held criminally responsible because, legally, he could not form mens rea or the intent to kill. Source: “Police: 4-Year-Old Boy Kills 3-Year-Old Playmate With Gun,” accessed December 29, 2010, www.foxnews.com/us/2010/07/30 /police-year-old-boy-kills-year-old-playmate-gun/. juvenile delinquency A special category of offense created for young offenders, usually those between 7 and 18 years of age. insanity Mental or psychological impairment or retardation as a defense against a criminal charge. to the head of a loved one and threatened to kill that person if you did not rob a local convenience store and return immediately to give the intruder the T money. If you committed the robbery to save the life of your loved one, you would probably not be held I legally responsible for the crime because you committed it under duress. There were extenuating circumstances when you acted F all offenders from claiming duress, the burden of with mens rea. To prevent proof is placed on the defendant. F Another legal excuse or legal defense against criminal responsibility is being Aat which a person is considered legally responsible underage. Although the age for his or her actions varies by jurisdiction, in most American jurisdictions, a N child under the age of 7 is not held responsible for a crime. It is assumed that a child under 7 years of age Y does not have the capacity to form mens rea. A child under 7 years of age is considered a legal infant or of legal nonage. Such a child is protected by criminal law but not subject to it. Thus, if a 6-year-old child picks up a shotgun and shoots his 1 or her parent, the child is unlikely to be charged with a crime. However, if a parent abuses a child, the criminal law protects the 5 parent responsible for his or her actions. child by holding the abusive In most developed countries, children under 18 years of age are not consid6 ered entirely responsible for their criminal acts. It is assumed that their capacity to form mens rea is not8fully developed. A special category of offense called juvenile delinquency has been created for those children. In most American T limit for juvenile delinquency is 18. The lower jurisdictions, the upper age limit is usually 7. Criminal S law generally treats anyone who is 18 or older as an adult. However, the upper age limit of juvenile delinquency is lower in some jurisdictions and sometimes varies with the sex of the offender. In some jurisdictions there is a legal borderland between the ages of 16 and 18. An offender in that age range may be treated as a juvenile or as an adult, depending on the severity of the offense. In some cases, an offense is considered heinous enough for a court to certify a juvenile, regardless of age, as an adult and to treat him or her accordingly. The subject of juvenile delinquency is discussed more fully in Chapter 13. A third legal defense or legal excuse from criminal responsibility is insanity. Insanity is a legal term, not a medical one. It refers to mental or psychological boh11536_ch02_025-057.indd Page 31 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences 31 Figure 2.1 Insanity Tests by State WA-D NH-D MT* ND-S OR-D MN-D ID* MA-S WI-D SD-D OH-D IL-D UT* CO-S KS AZ-D* OK-S NM-S TX-D AK-D* MO-D L I AR-D D MS-S D LA-D E L L , Notes: HI-D MP PA-D IA-D NE-D NV-D NY-D RI-D CT-D MI-S WY-D CA-D ME-D VT-D IN-D -S W V VA-D KY-D NJ-S DE-D MD-D DC-D FED NC-D TN-S SC-D AL-D GA-D* FL-S * = guilty but mentally ill or guilty but insane verdict allowed D = burden of proof on defendant S = burden of proof on state GU T I F Source: “The Insanity Defense Among the States,” accessed December 29, 2010, http://criminal.findlaw F .com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-the-states.html. A N impairment or retardation. Like many of the other legal defenses or excuses, Y who is insane at the an insanity defense rests on the assumption that someone AL = M’Naghten Rule or some version of it CO = M’Naghten Rule + Irresistible-Impulse Test AR = Model Penal Code or some version of it NH = A version of Durham’s Rule ID = Abolished Insanity Defense time of a crime lacks the capacity, or has diminished capacity, to form mens rea. Thus, that person either should not be held responsible or should be held less responsible for a given crime. 1 In most western European nations, legal insanity is determined solely by 5 and American law, by the judgment and testimony of medical experts. British contrast, provide guidelines for judges, juries, and medical experts to follow 6 in determining whether a defendant is legally insane. The oldest of those 8 it, which was first used guidelines is the M’Naghten rule, or some variation of in an English trial in 1843 and is now used in 21 states T (see Figure 2.1). Under the M’Naghten rule: S Every man is to be presumed to be sane, and . . . to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.4 In short, according to the M’Naghten rule, which is also referred to as the “rightand-wrong test,” a person is legally insane if, at the time of the commission of the act, he or she (1) did not know the nature and quality of the act or (2) did not know that the act was wrong. The burden of proof is on the defendant. CJ Online Daniel M’Naghten Daniel M’Naghten was acquitted of the murder of a person he had mistaken for his real target, Sir Robert Peel, then the Prime Minister of Great Britain. M’Naghten claimed that he was delusional at the time of the killing. Go to http://wings.buffalo.edu /law/bclc/web/mnaghten.htm and research the M’Naghten case. Explain the insanity defense in that case and give your opinion about the court’s ruling. boh11536_ch02_025-057.indd Page 32 10/06/11 4:02 AM user-f494 32 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice MYTH The availability of an insanity defense allows dangerous offenders to escape conviction and go free. FACT Defendants found not guilty by reason of insanity rarely go free. Generally, they are confined to a mental institution until they are deemed by the committing court or some other judicial body to be sane or no longer dangerous. Research shows that the insanity defense is used in less than 1% of criminal cases, and only about one in four is successful. Source: John P. Martin, “The Insanity Defense: A Closer Look,” accessed March 10, 2011, www.washingtonpost.com/wp-srv/local /longterm/aron/qa227.htm One problem with the M’Naghten rule is the difficulty of determining what a person’s state of mind was at the time of the commission of the criminal act. The rule has also been criticized for its ambiguity. What is a “defect of reason,” and by whose standards is the act a product of defective reason? Does “disease of the mind” refer to organic diseases, nonorganic diseases, or both? What does it mean to “know” the nature and quality of the act? Does it mean an intellectual awareness, an emotional appreciation, or both? Does “wrong” mean legally wrong, morally wrong, or both? Perhaps the most serious problem with the M’Naghten rule is that it does not address the situation of a defendant who knew the difference between right and wrong but was unable to control his or her actions. To remedy that problem, four states have adopted the irresistible-impulse or control test and use it in conjunction with the M’Naghten rule (see Figure 2.1). In those states a defense against conviction on grounds of insanity is first made by using the M’Naghten rule. If the conditions of M’Naghten are met, the irresistible-impulse or control test is applied.LIf it is determined that the defendant knew that he or she was doing wrong at the time of the commission of the criminal act but I his or her behavior, the defendant is entitled to nevertheless could not control an acquittal on the grounds Dof insanity. The major problem with the irresistibleimpulse or control test is distinguishing between behavior that is uncontrollable and behavior that isD simply uncontrolled. The test for insanity used by another 21 states is the substantial-capacity test of the American LawE Institute’s Model Penal Code or some version of it. Under that test, a defendant L is not to be found guilty of a crime “if at the time of such conduct as a result of mental disease or defect he lacks substantial L the criminality of his conduct or to conform his capacity either to appreciate conduct to the requirements , of law.” By using the term substantial capacity, the test does not require that a defendant be completely unable to distinguish right from wrong. The test has been criticized for its use of the ambiguous terms substantial capacity and appreciate. It also does not resolve the problem T of determining whether behavior is uncontrollable or uncontrolled. A final insanity test used I only in New Hampshire is a version of Durham’s Rule and is referred to as “the product test.” The product test is a two-prong test in which the defenseFmust show that (1) the defendant suffered from a mental disease or defect and F (2) the murder was a product of that disease or defect. A problem with the product test is that neither the New Hampshire A courts have defined the terms mental disease legislature nor New Hampshire and defect, leaving interpretation entirely to juries. N Y 1 5 6 8 T S In a 1994 trial in Virginia, attorneys for Lorena Bobbitt, who had sliced off her husband’s penis with a kitchen knife while he was sleeping, successfully used the irresistible-impulse defense against charges of malicious wounding. She claimed that she had been subjected to physical and sexual abuse for years during her marriage. She was acquitted of the crime. Was Bobbitt’s act uncontrollable or uncontrolled? Defend your answer. boh11536_ch02_025-057.indd Page 33 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences Following the public uproar over the 1982 acquittal of John Hinckley, the would-be assassin of President Ronald Reagan, on the grounds that he was legally insane, five states, including three states that have otherwise abolished the insanity defense, enacted “guilty but insane” or “guilty but mentally ill” laws (See Figure 2.1). Defendants who are found guilty but insane generally receive sentences that include psychiatric treatment until they are cured. Then they are placed in the general prison population to serve the remainder of their sentences. States are free to abolish insanity as a defense. The first state to do so was Montana in 1979. Idaho, Utah, and Kansas are the only other states that have eliminated any possibility of a criminal defendant being found not guilty by reason of insanity.5 Figure 2.1 shows the insanity test used by each state (and Washington, DC), as well as which party, either the defendant or the state, has the burden of proof, and the states that allow guilty but mentally ill or guilty but insane verdicts. A fourth legal defense or legal excuse from criminal L responsibility is selfdefense or the defense of a third party. Generally, people are relieved of crimiI reasonably necessary to nal responsibility if they use only the amount of force defend themselves or others against an apparent threat D of unlawful and immediate violence. When it comes to the protection of property, however, the use of force is much more limited. Deadly force is not allowed, D but nondeadly force may be used to protect one’s property. In 2005, Florida became the first state to pass the National Rifle Association–backed “castle E doctrine” law or, as it is sometimes called, the “stand your ground” law. Since L then, at least 15 other states have followed suit, though the wording varies among states. The law generally provides that someone attacked in his or herLhome can use reasonable force, including deadly force, to protect his or another’s , life without any duty to retreat from the attacker. In Florida, the “no duty to retreat” language also applies to street crimes. In some states, the law applies to other locations besides a home, such as a place where a person is a guest or a workplace. Some verT sions provide criminal or civil immunity for someone who legally uses force in self-defense. Most of the laws presume that a personI breaking into someone’s house has the intent of a violent or forceful act. The law’s name comes from F people are not held the notion that “one’s home is one’s castle.”6 The reason legally responsible for acting in self-defense or in defense of a third party is F that, because of extenuating circumstances, they do not act with mens rea. A criminal responsibilEntrapment is a fifth legal defense or legal excuse from ity. People are generally considered either not responsible or less responsible N for their crimes if they were entrapped, or induced into committing them, by a law enforcement officer or by someone acting as anYagent for a law enforcement officer, such as an informer or an undercover agent. A successful entrapment defense, however, requires proof that the law enforcement officer or his or her agent instigated the crime or created the intent 1 to commit the crime in the mind of a person who was not already predisposed to committing it. Thus, 5 affords someone an it is not entrapment if a law enforcement officer merely opportunity to commit a crime, as, for example, when an undercover agent 6 poses as a drug addict and purchases drugs from a drug dealer. The final legal defense or legal excuse from criminal 8 responsibility to be discussed here is necessity. A necessity defense can be used when a crime has T In such a situation, been committed to prevent a greater or more serious crime. there are extenuating circumstances, even though theSact was committed with mens rea. Although it is rarely used, the necessity defense has been invoked occasionally, especially in cases of “political” crimes. The necessity defense was used successfully by Amy Carter (daughter of former President Jimmy Carter), Jerry Rubin, and other activists who were charged with trespassing for protesting apartheid on the property of the South African embassy in Washington, DC. The court agreed with the protesters that apartheid was a greater crime than trespassing. Interestingly, the law does not recognize economic necessity as a defense against or an excuse from criminal responsibility. Therefore, the unemployed and hungry thief who steals groceries cannot successfully employ the necessity defense. 33 entrapment A legal defense against criminal responsibility when a person, who was not already predisposed to it, is induced into committing a crime by a law enforcement officer or by his or her agent. necessity defense A legal defense against criminal responsibility used when a crime has been committed to prevent a more serious crime. boh11536_ch02_025-057.indd Page 34 10/06/11 4:02 AM user-f494 34 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice FYI Causation A fifth ideal legal element of crime is causation, or a causal relationThe Year-and-a-Day Rule The rule that a person cannot be prosecuted for murder if the victim dies more than a year and a day after the injury is based on thirteenth-century English common law. Source: Tennessee v. Rogers, 992 S.W.2d 393 (1999); United States v. Jackson, 528 A.2d 1211, 1214 (D.C. 1987). ship between the legally forbidden harm and the actus reus. In other words, the criminal act must lead directly to the harm without a long delay. In a recent case in Georgia, for example, a father was accused of murdering his baby daughter. The murder charges were dropped, however, because too much time had passed between the night the 3½-month-old girl was shaken into a coma and her death 18 months later. Because of Georgia’s year-and-a-day rule, the father was not charged with murder, but he still faced a charge of cruelty to children, which in Georgia carries a maximum sentence of 20 years. The purpose of the requirement of causation is to prevent people from facing the threat of criminal charges the rest of their lives. Concurrence Ideally, for any behavior to be considered a crime, there must be concurrence between the actus reus and the mens rea. In other words, the criminal conduct and the criminal intent must occur together. For example, suppose you call someone to repair L your broken washing machine, and that person comes to your home, fixes your washing machine, and on the way out takes your televiI sion set. The repair person cannot be found guilty of entering your home illegally (trespass) because that wasDnot his or her initial intent. However, the repair person can be found guilty of stealing your television set. D E ideal legal elements of a crime is punishment. For a Punishment The last of the behavior to be considered L a crime, there must be a statutory provision for punishment or at least the threat of punishment. Without the threat of punishment, a law is unenforceable andLis therefore not a criminal law. , DEGREES OR CATEGORIES OF CRIME T mala in se Wrong in themselves; a description applied to crimes that are characterized by universality and timelessness. mala prohibita Offenses that are illegal because laws define them as such; they lack universality and timelessness. Crimes can be classified according to the degree or severity of the offense, according to the nature ofI the acts prohibited, or on some other basis, such as a statistical reporting scheme. One way crimes are distinguished by degree or severity of the offense is F by dividing them into felonies and misdemeanors. The only way to determine F whether a crime is a felony or misdemeanor is by knowing the legislated punishment. Consequently, a felony in one jurisdiction might be a misdemeanor A in another jurisdiction, and vice versa. Generally, a felony, as noted in Chapter 1, is a relatively serious offense punishable by N death, a fine, or confinement in a state or federal prison for more than 1 year. A misdemeanor, in contrast, Y is any lesser crime that is not a felony. Misdemeanors are usually punishable by no more than a $1,000 fine and 1 year of incarceration, generally in a county or city jail. Another way of categorizing 1 crimes is to distinguish between offenses that are mala in se and offenses that are mala prohibita. Crimes mala in se are 5 are characterized by universality and timeless“wrong in themselves.” They ness. That is, they are crimes everywhere and have been crimes at all times. 6 Examples are murder and rape. Crimes mala prohibita are offenses that are illegal because laws define8them as such. They lack universality and timelessness. Examples are trespassing, gambling, and prostitution. For statistical reportingTpurposes, crimes are frequently classified as crimes against the person or violent S crimes (for example, murder, rape, assault); crimes against property or property crime (for instance, burglary, larceny, auto theft); and crimes against public decency, public order, and public justice or public order crimes (for example, drunkenness, disorderly conduct, vagrancy). Table 2.1 is a list of selected crimes and their definitions, grouped by type. The selection, placement, and definition of the crimes are somewhat arbitrary. There are many different types of crime, and some crimes can be placed in more than one category. Legal definitions of crime vary among jurisdictions and frequently list numerous degrees, conditions, and qualifications. A good source of legal crime definitions is Black’s Law Dictionary. boh11536_ch04_094-134.indd Page 94 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles 4 The Rule of Law L I D D E L L , Chapter Outline Two Types of Law: Criminal Law and Civil Law Substantive versus Procedural Law Ideal Characteristics of the Criminal Law T I F F A N Y Criminal Law as a Political Phenomenon Creating Criminal Laws in the United States Procedural Law: Rights of the Accused The Bill of Rights The Fourteenth Amendment and the Selective Incorporation of the Bill of Rights The Fourth Amendment The Fifth Amendment The Sixth Amendment The Eighth Amendment Protecting the Accused from Miscarriages of Justice 94 1 5 6 8 T S Learning Objectives After completing this chapter, you should be able to: 1. Distinguish between criminal law and civil law. 2. Distinguish between substantive law and procedural law. 3. List five features of “good” criminal laws. 4. Explain why criminal law is a political phenomenon. 5. Summarize the origins of American criminal law. 6. Describe the procedural rights in the Fourth Amendment. 7. Describe the procedural rights in the Fifth Amendment. 8. Describe the procedural rights in the Sixth Amendment. 9. Describe the procedural rights in the Eighth Amendment. 10. Explain why procedural rights are important to those accused of crimes. boh11536_ch04_094-134.indd Page 95 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 95 CRIME STORY O and ordered them to drive. They eventu- sentenced to 75 years. Massingill, who ally ordered the male driver to pull over is also serving time for a separate rape to the side of the road and get out of the charge, expects to have his conviction car. The woman tried to flee but was in the Dupree case set aside. n January 4, 2011, Dallas County, pulled back inside. The woman was Texas Judge Don Adams over- then driven to a nearby park, where she innocent since the day he was arrested, turned the conviction of Cornelius was raped at gunpoint. Her assailants arguing that he was the victim of mis- debated killing her but decided to let taken identity. That Dupree was con- the joy overrides the anger. I’m just so L her live. They took her rabbit-fur coat I and her driver’s license and warned her Dthe police, they would that if she called kill her. She ran Dto the nearest highway and collapsed by the side of the road E where she was found unconscious. L About five days later, two men, neither of whose L descriptions matched Dupree, tried to , sell the woman’s coat overwhelmed with the joy of being at a grocery store two miles from the Project took his case in 2006 and, in free.” Dupree was incarcerated longer liquor store. The victims’ stolen car was 2009, received permission to have a than any other Texas prison inmate who found in the parking lot. A month later, vaginal swab luckily preserved from the Dupree Jr. (pictured) and declared him innocent. Dupree, now 51-years-old, had served 30 years in a Texas prison for a crime he did not commit. After being freed, Dupree stated that he had “mixed emotions” about the court hearing because he had been incarcerated for so long. He said, “I must admit there is a bit of anger, but there is also joy, and was later exonerated by DNA evidence. Only two prisoners exonerated by DNA evidence have served longer: James Bain spent 35 years in a Florida prison, and Lawrence McKinney was wrongly incarcerated in Tennessee for 31 years. Dupree’s unfortunate saga began in T I Dupree and Anthony Massingill were arrested because F they looked similar to two men sought in another sexual F assault and robbery case. The female A victim in the first case was shown a N Dupree and photo lineup with Massingill’s photos Y and identified them Dupree had claimed that he was victed based on a misidentification is not particularly surprising since 75% of all wrongful convictions of people later exonerated by DNA evidence were the result of misidentifications. Dupree spent the next three decades appealing, but the Texas Court of Criminal Appeals turned him down three times. The New York–based Innocence case tested for DNA. The test results cleared Dupree and Massingill. Chapter 4 examines the constitutional protections provided to people suspected or charged with crimes in the United States. Despite these protections, miscarriages of justice, such as the one 1979, when a woman and her male as the assailants, but the male victim that befell Cornelius Dupree Jr. and companion stopped at a Dallas liquor was unable to do so. However, at trial Anthony Massingill, occur with some store to buy cigarettes and use a pay- both victims testified that Dupree and regularity. How could Dupree’s night- phone. As they got back in their car, two men, at least one of whom was armed, forced their way into the car, demanded money from the two victims, 1 5 the men who commitMassingill were ted the crime. 6 They were convicted of aggravated robbery (they were not tried 8 on the rape charge), and Dupree was T S mare have happened? The answer to this question reveals the difficulties in administering justice fairly in the United States. Two Types of Law: Criminal Law and Civil Law As discussed in Chapter 2, the conventional, although not necessarily the best, definition of crime is “a violation of the criminal law.” Criminal law is one of two general types of law practiced in the United States; the other is civil law. Criminal law is “a formal means of social control [that] involves the use of rules that are interpreted, and are enforceable, by the courts of a political criminal law One of two general types of law practiced in the United States (the other is civil law); “a formal means of social control [that uses] rules . . . interpreted [and enforced] by the courts . . . to set limits to the conduct of the citizens, to guide the officials, and to define . . . unacceptable behavior.” boh11536_ch04_094-134.indd Page 96 07/06/11 4:51 AM user-f494 96 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice penal code The criminal law of a political jurisdiction. tort A violation of the civil law. civil law One of two general types of law practiced in the United States (the other is criminal law); a means of resolving conflicts between individuals. It includes personal injury claims (torts), the law of contracts and property, and subjects such as administrative law and the regulation of public utilities. substantive law The body of law that defines criminal offenses and their penalties. procedural law The body of law that governs the ways substantive laws are administered; sometimes called adjective or remedial law. due process of law The rights of people suspected of or charged with crimes. community. . . . The function of the rules is to set limits to the conduct of the citizens, to guide the officials (police and other administrators), and to define conditions of deviance or unacceptable behavior.”1 The purpose of criminal justice is to enforce the criminal law. A crime, as noted, is a violation of the criminal law, or of the penal code of a political jurisdiction. Although crime is committed against individuals, it is considered an offense against the state, that is, the political jurisdiction that enacted the law.2 A tort, in contrast, is a violation of the civil law and is considered a private matter between individuals. Civil law includes the law of contracts and property as well as subjects such as administrative law (which deals with the rules and regulations created by government agencies) and the regulation of public utilities. For legal purposes, a particular act may be considered an offense against an individual or the state or both. It is either a tort or a crime or both, depending on how it is handled. For example, a person who has committed an act of assault may beLcharged with a crime. If that person is convicted of the crime, the criminal court may order the offender to be imprisoned in I and to pay a fine of $2,000. Both the jail senthe county jail for 6 months tence and the fine are punishments, with the fine going to the state or local D treasury (in federal court to the national treasury). The criminal court could also order the offender to D pay restitution to the victim. In that case, the offender would pay the victim a sum of money either directly or indirectly, through an intermediary.EIn addition, the victim may sue the offender in civil court for damages, such L as medical expenses or wages lost because of injury. If the offender is found liable (responsible) for the damages because he or she has committed L a tort (civil courts do not “convict”), the civil court may also order the offender to compensate the victim in the amount of , $2,000 for damage to the victim’s interests. The payment of compensation in the civil case is not punishment; it is for the purpose of “making the victim whole again.” T I SUBSTANTIVE VERSUS F PROCEDURAL LAW There are two types of criminal law: substantive and procedural. Substantive F law is the body of law that defines criminal offenses and their penalties. Substantive laws, which are found A in the various penal codes, govern what people legally may and may not do. Examples of substantive laws are those that proN rape, robbery, and other crimes. Procedural law, hibit and penalize murder, sometimes called adjective Y or remedial law, governs the ways in which the substantive laws are to be administered. It covers such subjects as the way suspects can legally be arrested, searched, interrogated, tried, and punished. In other words, procedural 1 law is concerned with due process of law, or the rights of people suspected of or charged with crimes. The last part of this 5 chapter is devoted to a detailed description of procedural law. 6 8 OF THE CRIMINAL LAW IDEAL CHARACTERISTICS Legal scholars identify fiveTfeatures that all “good” criminal laws ideally ought to possess. To the extent S that those features are absent in criminal laws, the laws can be considered “bad” laws, and bad laws do exist. The five ideal features of good criminal laws are (1) politicality, (2) specificity, (3) regularity, (4) uniformity, and (5) penal sanction (see Figure 4.1). politicality An ideal characteristic of criminal law, referring to its legitimate source. Only violations of rules made by the state, the political jurisdiction that enacted the laws, are crimes. Politicality Politicality refers to the legitimate source of criminal law. Only violations of rules made by the state (that is, the political jurisdiction that enacted the laws) are crimes. Violations of rules made by other institutions, such as families, churches, schools, and employers, may be “bad,” “sinful,” or “socially unacceptable,” but they are not crimes because they are not prohibited by the state. boh11536_ch04_094-134.indd Page 97 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 97 Figure 4.1 Ideal Characteristics of Criminal Law Politicality Specificity Regularity Uniformity Violations of rules made by the state, providing strict definitions of specific acts, applied to all persons regardless of social status, enforced against any violators regardless of social status, Penal Sanction and subject to punishment or threatened punishment by the state. L Specificity Specificity refers to the scope of criminalI law. Although civil law may be general in scope, criminal law should provide strict definitions of speD a person stole an aircific acts. The point is illustrated by an old case in which plane but was found not guilty of violating a criminal law that prohibited the D taking of “self-propelled vehicles.” The judge ruled that at the time the law was enacted, vehicles did not include airplanes. Ideally, asEthe Supreme Court ruled in Papachristou v. City of Jacksonville (1972), a statute or ordinance “is void for L vagueness . . . [if] it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” L , Regularity Regularity is the applicability of the criminal law to all persons. Ideally, anyone who commits a crime is answerable for it, regardless of the person’s social status. Thus, ideally, when criminal laws are created, they should T to the men; not only to apply not only to the women who violate them, but also the poor, but also to the rich. In practice, however, this ideal feature of law has I been violated. Georgia’s pre–Civil War criminal laws, for example, provided for a dual system of crime and punishment, with one set of Flaws for “slaves and free persons of color” and another for all other persons. Another example of the vioF M. v. Superior Court lation of this principle is illustrated by the case of Michael of Sonoma County (1981). In this case, the U.S. SupremeACourt upheld California’s statutory rape law that made men alone criminally responsible for the act of ilN licit sexual intercourse with a minor female. Y Uniformity Uniformity refers to the way in which the criminal law should be enforced. Ideally, the law should be administered without regard for the social status of the persons who have committed crimes or are accused of committing 1 crimes. Thus, when violated, criminal laws should be enforced against both young and old, both rich and poor, and so on. However, 5 as is the case with regularity, the principle of uniformity is often violated because some people consider the strict enforcement of the law unjust in 6 some cases. For example, juveniles who are caught misbehaving in violation8of the criminal law are sometimes ignored or treated leniently through the exercise of police or judiT cial discretion. S Penal Sanction The last ideal feature of criminal law is penal sanction, the principle that violators will be punished, or at least threatened with punishment, by the state. Conventional wisdom suggests that there would be no point in enacting criminal laws if their violation were not responded to with punishment or threat of punishment. Most people assume that sanctionless criminal laws would be ignored. Because all criminal laws carry sanctions, the power of sanctionless laws can be left to philosophers to debate. Table 4.1 shows the five general types of penal sanctions currently used in the United States, as well as the purpose and focus of each sanction. Combining different penal sanctions in the administration of justice is not uncommon. specificity An ideal characteristic of criminal law, referring to its scope. Although civil law may be general in scope, criminal law should provide strict definitions of specific acts. regularity An ideal characteristic of criminal law: the applicability of the law to all persons, regardless of social status. uniformity An ideal characteristic of criminal law: the enforcement of the laws against anyone who violates them, regardless of social status. penal sanction An ideal characteristic of criminal law: the principle that violators will be punished or at least threatened with punishment by the state. boh11536_ch04_094-134.indd Page 98 07/06/11 4:51 AM user-f494 98 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice Table 4.1 Five General Types of Penal Sanctions MYTH Law makes people behave. FACT The existence of a law prohibiting a particular behavior does not necessarily prevent an individual from engaging in that behavior. Common sense suggests the implausibility of the notion. Ask yourself, if it were not for laws prohibiting murder, prostitution, or heroin use, for example, would you murder, engage in prostitution, or use heroin? How effective are speed limits in preventing you from exceeding them? Type Purpose Focus Punishment Prevent undesired conduct. Provide retribution (“an eye for an eye”). Offending conduct Restitution Make the victim “whole again” by having the offender directly or indirectly pay the victim. Crime victim Compensation Make the victim “whole again” by having the state pay for damages to the victim. Crime victim Regulation Control future conduct toward the best interests of the community (e.g., making it a crime or traffic violation to operate a motor vehicle with a blood alcohol content higher than a specified level). The entire community L I D Treatment or rehabilitation the offender’s behavior Criminal offender DChange and, perhaps, personality. E L CRIMINAL LAW AS A L POLITICAL PHENOMENON , criminal law is a political phenomenon, that it People sometimes forget that is created by human beings to regulate the behavior of other human beings. Some people, for example, view the criminal law as divinely inspired, something that should not be T questioned or challenged. That viewpoint probably comes from a belief in theI biblical story of Moses receiving the Ten Commandments from God on Mount Sinai. However, as critical theorists are quick to point out, criminal law frequently promotes the interests of some groups over F the interests of other groups. Thus, regardless of the law’s source of inspiration, F gets defined as criminal or delinquent behavior we must understand that what is the result of a politicalA process in which rules are created to prohibit or to require certain behaviors. Nothing is criminal or delinquent in and of itself; N makes it so. only the response of the state Y Origins of Laws Formal, written laws are a relatively recent phenomenon in human existence. The first were created about 5,000 years ago. They emerged with the institutions of property, marriage, and government. “Stateless” societies 1 apparently managed without them for two primary reasons.3 First, most stateless 5 rigid customs to which citizens strictly adhered. societies were governed by Second, crimes of violence were considered private matters and were usually 6 resolved through bloody personal revenge. Formal, written laws partially replaced customs when nation-states appeared, although customs often remained 8 the force behind the laws. Formal laws also replaced customs with the advent of T writing, which allowed recorded legislation to replace the recollections of elders and priests. S The first known written laws (approximately 3000 B.C.) were found on clay tablets among the ruins of Ur, one of the city-states of Sumeria. Attributed to King Urukagina of Lagash, the laws were truly enlightened for their time and attempted to free poor people from abuse by the rich and everybody from abuse by the priests. For example, one law forbade the high priest from coming into the garden of a poor mother and taking wood or fruit from her to pay taxes. Laws also cut burial fees to one-fifth of what they had been and forbade the clergy and high officials from sharing among themselves the cattle that were sacrificed to the gods. By 2800 B.C., the growth of trade had forced the city-states of Sumeria to merge into an empire governed by a single, all-powerful king. boh11536_ch04_094-134.indd Page 99 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law 99 Around 2200 B.C., a war settlement between the Sumerians and the Akkadians produced the Babylonian civilization. Babylonia’s best-known king was Hammurabi (1792–1750 B.C.), who ruled for 43 years. Hammurabi is famous for the first great code of laws. The Code of Hammurabi, like the laws of Moses later, presumably was a gift from God. Hammurabi was said to have received it from the sun god, Shamash, about 1780 B.C. There was a total of 285 laws in the code, arranged under the headings of personal property, real estate, trade and business, the family, injuries, and labor. The Code of Hammurabi combined very enlightened aims, such as “to prevent the strong from oppressing the weak, . . . to enlighten the land and to further the welfare of the people,” with very barbaric punishments. All the ancient nation-states or civilizations had formal L legal codes. In addition to the laws of King Urukagina of I Lagash (Sumeria) and the Code of Hammurabi (Babylonia), legal codes were established by the Egyptians, the AssyrD ians, the Hebrews, the Persians, the Indians, the Chinese, the Greeks (especially the codes of Lycurgus, Draco, D Solon, and Plato), and the Romans (for example, the Twelve Tables, the Justinian Code, and the Law of E the Nations). The development and the content of those legal L codes are of mostly historical interest. The criminal law L of the United States, for the most part, is derived from the laws of England. , England’s Contribution to American Criminal Law Before the Norman Conquest in 1066, England was populated by T Anglo-Saxon tribes that regulated themselves through cus4 tom. Wars between those tribes resulted in the taking ofI the Bas relief depicting King Hammurabi with his code of laws. Why tribal lands of the losers by the leader of the victorious tribe, do people believe that criminal laws come from God? who, by force, made the newly acquired land his own F private property and himself the feudal lord. By the timeFof the Norman Conquest, there were about eight large and relatively independent feudal landholdings. In an A themselves to dispense effort to increase their power, the feudal lords took it on justice among their subjects and began to require that disputes between subjects be N settled in local courts rather than by relatives, as had previously been the custom. When William I of Normandy conquered EnglandYin 1066 and proclaimed himself king, he declared that all land, and all land-based rights, including the administration of justice, were now vested in the king. King William also rewarded the Norman noblemen who had fought with 1 him with large grants of formerly Anglo-Saxon land. 5 To make the dispensing of justice a profitable enterprise for the king and to make sure the local courts remained under his control, the institution of the 6 eyre was created early in the twelfth century. The eyre was composed of traveling judges who represented the king and examined8the activities of the local courts. T of cases of sufficient Of particular interest to the eyre was the resolution seriousness as to warrant the forfeiture of the offender’s S property as punishment. The notion of forfeiture was based on the feudal doctrine that the right Felony to own private property rested on a relationship of good faith between the landowner and his lord. The Norman kings expanded the notion of forfeiture The term felony originally meant an offense serious enough “to break the relato include any violation of the “king’s peace,” which enabled the king to claim tionship between [the landowner and his forfeited property for a variety of offenses, including such minor ones as treslord] and to cause the [land] holding to be passing. It was the responsibility of the judges in eyre to make sure the king forfeited to the lord.” received his portion of forfeited property. A secondary responsibility of the eyre was to hear common pleas, which Source: S. Francis Milson, The Historical consisted primarily of disputes between ordinary citizens. Although common Foundations of the Common Law (London: Butterworths, 1969), 355. pleas could be handled in the local courts, which in many instances were still FYI boh11536_ch04_094-134.indd Page 100 07/06/11 4:51 AM user-f494 100 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice The Magna Carta, signed by England’s King John in 1215, placed limits on royal power and established the principle of the rule of law. Which is preferable: unregulated royal power or the rule of law? Why? influenced by Anglo-Saxon customs, the Norman settlers frequently felt more comfortable having their cases heard in the king’s courts, of which the eyre was one. It was the common-plea decisions made by judges in eyre that formed the body of legal precedent that became known as the common law, that is, the rules used to settle disputes throughout England. Thus, as the judges of eyre resolved common-plea disputes, they created precedents to be followed in similar cases. Because the common law was built case by case, it is sometimes also called case law. Many of the precedents that were created in medieval England became the basis of statutory law in modern England, as well as in the United States. In both countries, some of the early precedents are still used as the basis for settling disputes not covered by statutes. The L efforts of the Norman kings to centralize their power over all of England were only partially successful. I In 1215, powerful landholding nobles rebelled against the heavy D taxation and autocratic rule of King John and forced him to sign the Magna Carta (the Great Charter). The D primary purpose of the Magna Carta was to settle the dispute between the king and his nobles by placing E on royal power. (It did little for the common perchecks son.)L From that time forward, kings and queens of England were supposed to be governed by laws and customsLrather than by their own wills, and the laws were supposed to be applied in a regular and fair way by the , king or queen and his or her judges. Thus, the Magna Carta not only created the idea of the rule of law but also formed the basis of what would later be called due proT cess of law. I CREATING CRIMINALFLAWS IN THE UNITED STATES F In the United States, criminal laws (or criminal statutes) are almost entirely a product of constitutional A authority and the legislative bodies that enact them. They are also influenced by common law or case law interpretation and by N agency decisions. administrative or regulatory Y Constitutions and Legislative Bodies Constitutions generally provide for the creation of legislative bodies empowered to enact criminal and other laws. The U.S. Constitution, for example, 1 created Congress and gave it lawmaking power. The Bill of Rights of the Constitution (the first 10 amendments), as well as similar 5 amendments to state constitutions, also describe procedural laws that dictate how substantive laws are to be administered. Constitutions are important to the sub6 stantive criminal law because they set limits on what can be defined as a crime. As noted, criminal laws 8 are products of the lawmaking bodies created by constitutional authority. Thus, federal statutes are enacted by Congress, and T state legislatures. Laws created by municipalities, state statutes are enacted by such as by city councils,Sare generally called ordinances. Both the federal criminal statutes and the criminal statutes of particular states, including the definitions of crimes and the penalties associated with them, can be found in penal codes, one for each jurisdiction. Generally, statutes and ordinances apply only in the particular jurisdiction in which they were enacted. A crime must be prosecuted in the jurisdiction in which it was committed, and it is generally held to have been committed in the jurisdiction in which it was completed or achieved its goal. Federal crimes violate federal statutes, and state crimes violate state statutes. A crime in one state may not be a crime in another state, but a violation of a federal statute is a crime if committed anywhere in the United States. When a certain boh11536_ch04_094-134.indd Page 101 8/5/11 10:27 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 101 L I D D E Federal statutes are enacted by Congress. How does Congress create L statutes? L behavior violates both federal and state statutes, and possibly local ordinances, as is the case with many drug law violations, there is, overlapping jurisdiction. In such cases, there is frequently confusion over which jurisdiction should assume responsibility for the enforcement of the law and the prosecution of T the crime. I F case law whenever they made by trial and appellate court judges, who produce render a decision in a particular case. The decision becomes a potential basis, or F precedent, for deciding the outcomes of similar cases in the future. Although it is possible for the decision of any trial court judge toA become a precedent, it is primarily the written decisions of appellate court judges that do. The reasons on N are the only ones rewhich the decisions of appellate court judges are based quired to be in writing. This body of recorded decisions Y has become known as Common Law Common law, also called case law, is a by-product of decisions common law. Generally, whether a precedent is binding is determined by the court’s location. (The different levels of courts in the United States will be described in detail in Chapter 8.) 1 The principle of using precedents to guide future decisions in court cases is called stare decisis (Latin for “to stand by decided 5 cases”). Much of the time spent by criminal lawyers in preparing for a case is devoted to finding legal 6 precedents that support their arguments. The successful outcome of a case depends largely on the success of lawyers in that endeavor. 8 Although common law was an important source of criminal law in colonial America, it is less so today. Currently, what wereToriginally common law crimes, as well as many new crimes, have been defined S by statutes created by legislatures in nearly all states. There is no federal criminal common law. Nevertheless, as noted previously, common law or case law remains important for purposes of statutory interpretation. Administrative or Regulatory Agency Decisions Administrative or regulatory agencies are the products of statutes enacted by the lawmaking bodies of different jurisdictions. Those agencies create rules, regulate and supervise activities in their areas of responsibility, and render decisions that have the force of law. Examples of federal administrative or regulatory agencies are the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), the Nuclear precedent A decision that forms a potential basis for deciding the outcomes of similar cases in the future; a byproduct of decisions made by trial and appellate court judges, who produce case law whenever they render a decision in a particular case. stare decisis The principle of using precedents to guide future decisions in court cases; Latin for “to stand by decided cases.” FYI Common Law Many states have provisions in their statutes like Florida’s: “The common law of England in relation to crimes . . . shall be of full force in this state where there is no existing provision by statute on the subject.” Source: § 775.01, Fla. Stat. boh11536_ch04_094-134.indd Page 102 07/06/11 4:51 AM user-f494 102 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice L I D D E L Ordinances are the laws of municipalities and are created by city councils, for example, often with more citizen input than laws L created at the state or federal levels of government. How much input should citizens have in the creation of criminal laws? Defend your answer. , CJ Online DEA You can learn more about the programs, major operations, statistics, and so on, of the Drug Enforcement Administration (DEA) by visiting its website at www .usdoj.gov/dea/index.htm. How much power should the recommendations of regulatory agencies like the DEA have in shaping criminal laws? Regulatory Commission (NRC), the Drug Enforcement Administration (DEA), T and the Occupational Safety and Health Administration (OSHA). There are adI ministrative or regulatory agencies at the state and local levels as well. Although violations of the rules andFregulations of such agencies are generally handled through civil law proceedings, some violations—especially habitual violations— may be addressed throughFcriminal proceedings if provided for by statute. In addition, legislatures often enact criminal statutes based on the recommendaA tions of regulatory agencies. N The Interdependency Among Y Sources of Legal Authority Although federal and state criminal statutes are essentially independent of one another, and although almost all of the action in the enforcement of criminal laws is at the state level, there is an important interdependency among sources of legal authority. 1 Republican National Convention in Dallas, Texas, For example, during the 1984 Gregory Lee Johnson was5part of a political protest of Reagan administration policies. As part of the protest, Johnson burned an American flag. Johnson was 6 arrested and convicted of violating a Texas statute prohibiting the desecration of a venerated object. Several witnesses testified that the flag burning seriously of8 fended them. A state court of appeals affirmed the conviction, but the Texas Court of Criminal Appeals reversed T it, holding that to punish Johnson for burning the flag in this situation was inconsistent with the First Amendment. The U.S. Supreme Court agreed (seeS Texas v. Johnson, 1989). Provisions of the Constitution always take precedence over state statutes. However, if the state statute was not challenged, it would remain in effect in the particular state that enacted it. THINKING CRITICALLY 1. Which of the five features of good criminal laws do you think are most important? Why? 2. Are there any other features that could or should be added to good criminal laws? boh11536_ch04_094-134.indd Page 103 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Procedural Law: Rights of the Accused Most of the procedural or due process rights given to criminal suspects or defendants in the United States are found in the Bill of Rights. The Bill of Rights went into effect December 15, 1791. Other procedural rights are found in state constitutions and federal and state statutes. Probably the best systematic collection of due process rights is the Federal Rules of Criminal Procedure. Those rules apply only to federal crimes prosecuted in federal courts. Most states also have collections of rules regarding criminal procedures in state courts. Ohio, for example, has 60 such rules in its Ohio Rules of Criminal Procedure. THE BILL OF RIGHTS The ink was barely dry on the new Constitution before critics attacked it for not protecting the rights of the people. The First Congress quickly proposed a set of 12 amendments and sent them to the states forLratification. By 1791, the states had ratified 10 of the amendments, which became I known as the Bill of Rights (the first 10 amendments of the Constitution). Although the Bill of D Rights originally applied only to the national government, almost all of its provisions have also been applied to the states through a series of U.S. Supreme D Court decisions. Table 4.2 lists the 12 provisions in the Bill of Rights that are applicable to the criminal justice process. Note that E only two of the provisions—the prohibition against excessive bail and fines and the right to a grand jury indictment—are not yet applicable to the states.L L THE FOURTEENTH AMENDMENT AND THE SELECTIVE , INCORPORATION OF THE BILL OF RIGHTS The Fourteenth Amendment was finally ratified by the required three-fourths T of all states in 1868, shortly after the conclusion of the Civil War. In part, the amendment reads as follows: I F F A N Table 4.2 The 12 Provisions in the Bill of Rights Y Applicable 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. to the Criminal Justice Process Procedural Right 1. 2. 3. 4. 5. 6. 1 Freedom from unreasonable searches and seizures 5 Grand jury indictment in felony cases* 6 No double jeopardy No compelled self-incrimination 8 Speedy and public trial T Impartial jury of the state and district where crime occurred S Amendment Fourth Fifth Fifth Fifth Sixth Sixth 7. Notice of nature and cause of accusation Sixth 8. Confront opposing witnesses Sixth 9. Compulsory process for obtaining favorable witnesses Sixth 10. Counsel Sixth 11. No excessive bail and fines* Eighth 12. No cruel and unusual punishment Eighth Note: *This right has not been incorporated by and made applicable to the states. 103 boh11536_ch04_094-134.indd Page 104 07/06/11 4:51 AM user-f494 104 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice CJ Online ACLU The American Civil Liberties Union is a nonprofit, nonpartisan, advocacy group devoted to the protection of civil liberties for all Americans. You can learn more about the organization and its defense of the Constitution—especially the Bill of Rights—by going to www.aclu.org. Review the “Key Issues” section, and look at issues such as criminal justice, cyber-liberties, and drug policy. Do you think that organizations like the ACLU are necessary? Why or why not? FYI “Evolving Standards of Decency” In Trop v. Dulles (1958), Chief Justice Warren wrote that the protections of the Bill of Rights “must draw [their] meaning from evolving standards of decency that mark the progress of a maturing society.” One of the interesting and long-debated questions about the Fourteenth Amendment was whether its original purpose was to extend the procedural safeguards described in the Bill of Rights to people charged with crimes at the state level. Before the passage of the Fourteenth Amendment, the Bill of Rights applied only to people charged with federal crimes; individual states were not bound by its requirements. Some justices of the Supreme Court—for example, William Douglas (justice from 1939 to 1975), Hugo Black (justice from 1937 to 1971), and Frank Murphy (justice from 1940 to 1949)—believed that the Fourteenth Amendment was supposed to incorporate the Bill of Rights and make it applicable to the states. However, other justices, perhaps even a majority of them, did not. Thus, until the 1960s, the Supreme Court did not interpret the Fourteenth Amendment as incorporating the Bill of Rights. There are at least three different explanations for the actions or, in this case, inactions of the Supreme Court.5 First, there is little evidence that supporters of the Fourteenth Amendment intended it to incorporate the Bill of Rights. Second, by 1937, a series L of court decisions had established the precedent that the due process clause of the Fourteenth Amendment did not require states to I follow trial procedures mandated at the federal level by provisions in the Bill of Rights. The Supreme Court had held that due process was not violated if D procedures followed in state courts were otherwise fair. Third, there was the states’ rights issue. Because D the administration of justice is primarily a state and local responsibility, many people resented what appeared to be unwarranted interference by the E federal government in state and local matters. Indeed, the Constitution, for the most L part, leaves questions about policing and administering justice to the states, unless a state’s procedure violates a fundamental L principle of justice. Regardless of the reason, , it was not until the early 1960s that the Supreme Court, then headed by Chief Justice Earl Warren, began to selectively incorporate most of the procedural safeguards contained in the Bill of Rights, making them applicable to the states. T Thus, it took nearly 100 years after the ratification of the Fourteenth Amendment for suspects chargedI with crimes at the state level to be afforded most of the same due process protections as people charged with crimes at the federal F however, the composition of the Supreme Court level. During the past 40 years, has changed dramatically,F and with the change in personnel, the Court’s views of due process rights have changed as well. Whereas the politically liberal A championed the rights of criminal suspects by Warren Court of the 1960s extending procedural safeguards, the politically conservative Burger, Rehnquist, N Y 1 5 6 8 T S From left to right: Chief Justices John Roberts, Jr., William Rehnquist, Warren Burger, and Earl Warren. Whereas the politically liberal Warren Court of the 1960s championed the rights of criminal suspects by extending procedural safeguards, the politically conservative Burger, Rehnquist, and Roberts courts of the 1970s to the present have actively reversed or altered in other ways some of the work of the Warren Court. How can the different direction in criminal procedure taken by the Burger, Rehnquist, and Roberts courts be explained? boh11536_ch04_094-134.indd Page 105 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law 105 and Roberts Courts of the 1970s to the present have actively reversed or altered in other ways some of the work of the Warren Court.6 In the rest of this section, we consider the procedural rights in the Bill of Rights, which are found in the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution.7 Before we do, however, note that the specific interpretation of each of the procedural or due process rights has evolved over time through dozens of Supreme Court and lower-court decisions, or precedents. In this introductory examination, we limit our consideration of the legal development of those rights to what we believe are the most consequential cases, the landmark cases. THE FOURTH AMENDMENT The Fourth Amendment reads as follows: L I D The Fourth Amendment (as well as other provisions D of the Constitution) protects individual privacy against certain types of governmental interference. E “right to privacy,” as However, it does not provide a general constitutional many people wrongly believe. Nearly every governmental L action interferes with personal privacy to some extent. Thus, the question in Fourth Amendment cases is limited to whether a governmental intrusion L violates the Constitution.8 The procedural rights in the Fourth Amendment infl , uence the operation of criminal justice in the United States nearly every day. They concern the legalThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. ity of searches and seizures and the question of what to do with evidence that is illegally obtained. Searches are explorations or inspections, by law enforceT ment officers, of homes, premises, vehicles, or persons, for the purpose of discovering evidence of crimes or persons who are accused of crimes. A search I occurs “when an expectation of privacy that society is prepared to consider F are the taking of perreasonable is infringed [by the government].”9 Seizures sons or property into custody in response to violations F of the criminal law. A seizure of property occurs “when there is some meaningful interference [by A in that property.”10 the government] with an individual’s possessory interests In United States v. Mendenhall (1980), the Supreme Court created the folN lowing test for determining whether an encounter constitutes a Fourth Amendment seizure: “A person has been ‘seized’ within the Y meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court provided these examples of situations that might 1 be construed as seizures, even if the person did not attempt to leave: (1) the threatening presence of several officers, (2) the display of a weapon by an 5 officer, (3) some physical touching of the person, or (4) the use of language or a tone of voice that indi6 cated that compliance with the officer’s request might be compelled. In California v. Hodari D. (1991), the Court modified the plurality8 holding in Mendenhall. In Hodari D., the suspect ran from the police, and an officer pursued, thereby T would have believed creating a circumstance in which a “reasonable person that she or he was not free to leave” or to disobey S the officer’s command to halt. There was no physical touching of the suspect. The Court held that in cases involving a “show of authority,” as distinguished from physical touching, no “seizure” occurs unless and until the suspect yields or submits to the assertion of authority. According to the Supreme Court, the Fourth Amendment allows two kinds of searches and seizures: those made with a warrant and those made without a warrant. A warrant is a written order from a court directing law enforcement officers to conduct a search or to arrest a person. An arrest is the seizure of a person or the taking of a person into custody. An arrest can be either taking actual physical custody, as when a suspect is handcuffed by a police officer, searches Explorations or inspections, by law enforcement officers, of homes, premises, vehicles, or persons, for the purpose of discovering evidence of crimes or persons who are accused of crimes. seizures The taking of persons or prop- erty into custody in response to violations of the criminal law. warrant A written order from a court directing law enforcement officers to conduct a search or to arrest a person. arrest The seizure of a person or the taking of a person into custody, either actual physical custody, as when a suspect is handcuffed by a police officer, or constructive custody, as when a person peacefully submits to a police officer’s control. boh11536_ch04_094-134.indd Page 106 07/06/11 4:51 AM user-f494 106 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice or constructive custody, as when a person peacefully submits to a police officer’s control. An arrest can occur without an officer’s physically touching a suspect. The Fourth Amendment requires only that searches and seizures not be “unreasonable.” Searches and seizures conducted with a legal warrant are generally considered reasonable. However, what is “reasonable” in warrantless searches remained vague for more than 100 years after the ratification of the amendment. It was not until a series of cases beginning in the 1960s that the Supreme Court began to provide a more precise definition of the term. Because the law concerning warrantless searches and seizures is complex, only a relatively brief and simplified overview will be provided in that section. Searches and Seizures with a Warrant First, law enforcement officers must contraband An illegal substance or object. have probable cause before a judicial officer can legally issue a search or arrest warrant. Probable cause for L a search warrant requires substantial and trustworthy evidence to support two conclusions: (1) that the specific objects to be searched for are connectedI with criminal activity and (2) that the objects will be found in the place to be searched. In nearly all jurisdictions, law enforcement D officers seeking a search warrant must specify in a signed affidavit, a written and sworn declaration, the facts Dthat establish probable cause. The facts in the affidavit are the basis for determining later whether there was probable cause to issue E Some jurisdictions allow sworn oral testimony to the warrant in the first place. establish probable cause. L Figure 4.2 shows the search warrant affidavit in the Duke lacrosse rape case. L requires that a search warrant contain a particular The Fourth Amendment description of the place to, be searched and the person or things to be seized. Thus, the warrant must be specific enough that a law enforcement officer executing it would know where to search and what objects to seize, even if the officer was not originally involved in the case. However, absolute technical T accuracy in the description of the place to be searched is not necessary. It is required only that an officer I executing a warrant can find, perhaps by asking questions of neighborhood residents, the place to be searched. A warrant may also beFissued for the search of a person or an automobile, rather than a place. A warrant F to search a person should provide the person’s name or at least a detailed description. A warrant to search an automobile should include either the A car’s license number or its make and the name of its owner. N Search warrants are required to be executed in a reasonable amount of time. For example, federal law Y requires that a search be conducted within 10 days after the warrant is issued. The federal government and nearly half of the states also have laws limiting the time of day during which search warrants may be executed. In those jurisdictions, searches may be conducted only during day1 time hours unless there are special circumstances. 5 Generally, before law enforcement officers may enter a place to conduct a search, they must first announce that they are law enforcement officers, that 6 they possess a warrant, and that they are there to execute it. The major exceptions to this requirement 8 are situations in which it is likely that the evidence would be destroyed immediately on notification or in which notification would pose a threat to officers. T Judges in many jurisdictions also are authorized to issue “no-knock” warrantsS in some circumstances such as drug busts. However, if officers are refused entry after identifying themselves, they may then use force to gain entry, but only after they have given the occupant time to respond. In short, they cannot legally yell “police officers” and immediately kick down the door. The Supreme Court has held that under ordinary circumstances they must wait at least 15 to 20 seconds (see United States v. Banks, 2003). Finally, if in the course of conducting a legal search, law enforcement officers discover contraband (an illegal substance or object) or evidence of a crime not covered by the warrant, they may seize that contraband or evidence under the plainview exception (discussed later) without getting a new warrant specifically covering it. boh11536_ch04_094-134.indd Page 107 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Figure 4.2 Affidavit and Application for Search Warrant in the Duke University Lacrosse Rape Case STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY § § STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY IN THE GENERAL COURT OF § IN THE GENERAL COURT OF § DlSTRICT COURT DlVISION DlSTRICT COURT DlVISION ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT Description of items to be seized - Continued IN THE MATTER OF: 610 N. Buchnan Blvd. Durham, NC 27701 12. Any electronic data processing and storage devices, computers and computer systems including central processing units; internal and peripheral storage devices such as fixed disks, external hard disks, floppy disk drives and diskettes, tape drives and tapes, cartridges, optical storage devices or other memory storage devices; peripheral input/output devices such as keyboards, printers, video display-monitors, optical reader/write devices, and related communications devices such as modems; together with system documentation, operating logs and documentation, software and instruction manuals Any e-mail correspondence, other electronic communications, memos, or documents of any type referring to First Degree Rape, Robbery, Kidnapping, First Degree Sexual Offense, Hate Crimes, Felony Strangulation, and Assault on a female. I, Investigator Benjamin Himan being a duly sworn officer, request that the COURT issue a warrant to search the place, person, vehicles, and any other items or places described in this application; and to find and seize the property described in this application. Description of items to be seized. 1. Any DNA evidence to include hair, semen, blood, salvia related to the suspects and victim 2. Blue bathroom carpet/rug 3. Any clothing related to the suspects and the victim 4. Any documentation identifying the suspects 5. Collection of latent prints identifying persons in the residence 6. Documentation of ownership of residence 7. Property belonging to include but not limited to a purse, wallet, make-up and make-up bag, cellular camera telephone, and a shoe 8. Still photographs, video footage and digital recordings of the party 9. Any cameras or video devices which could contain photographs or footage of the party on 03/13/2006 to 3/14/2006 10. Artificial Fingernails with a reddish color polish 11. United States Currency totaling $400.00 or portions of said currency (all twenty dollar bills) ––––––––––––––––––––– MAGISTRATE/JUDGE ––––––––––––––––––––– APPLICANT 3.16.06 DATE ________________ STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY 3.16.06 DATE ________________ § IN THE GENERAL COURT OF § DlSTRICT COURT DlVISION ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT Description of Vehicle to be Searched 1996 Green Honda Accord, Virginia License Plate Number JBM-5999 VIN: 1HGCD5654TA199992 And / or Any vehicle on the curtilage Not applicable - - L I D D E L L , T I F F A N Y Description of Person to be Searched IN THE MATTER OF: 610 N. Buchanan, Durham N.C. Probable Cause Affidavit The affiant swears to the following facts to establish probable cause for the issuance of a search warrant. I, Inv. B. W. Himan, am a sworn law enforcement officer and have been since 2003. I have been employed as a sworn police officer with the Durham City Police Department since 2003. I am currently an investigator with the Durham City Police Department's Criminal Investigation Division Violent Crimes Unit. The Criminal Investigations Division has the responsibility of follow-up investigations of the crimes committed by adults and juveniles involving crimes against person and property. The primary objectives of this Division are to provide both investigative and general support to the other Divisions of the Durham Police Department in the accomplishment of establishing departmental goals and objectives. The Violent Crimes and Property Crimes Units are a part of the District 2 Criminal Investigations Division, dedicated to investigation matters of the people within the city of Durham, NC concerning persons. I have been assigned to the Criminal Investigations Division as an Investigator in District 2. I have been involved in numerous investigations to include domestic violence assaults, robberies, sexual assaults, and homicide investigations. I have received specialized training in the area of criminal investigation over my years with the Durham City Police Department. I have attended the following classes related to Law enforcement: Interview and Interrogation, Police Law Institute, Field Training Officers School, Street Drug Enforcement for Patrol Officers, and Child Death Investigation. These classes are in addition to hundreds of hours of In-Service Training with the Durham Police. 1 5 6 8 T S Description of Crimes First Degree Forcible Rape (N.C.G.S. 14-27.3), First Degree Kidnapping (N.C.G.S.14-39), First Degree Forcible Sexual Offense (N.C.G.S.14-27.4), Common Law Robbery (N.C.G.S., 14-87.1), Felonious Strangulation (N.C.G.S. 14-32 4(b)) Description of Premises to be Searched The residence to be searched is located at 610 North Buchanan Blvd. in Durham, North Carolina. From the Durham Police District 2 Substation located at 1058 W. Club Blvd, officers will turn left traveling south on Guess Rd which turns into North Buchanan. The residence is on the east side of the street just after W. Markham. The premise to be'searched is a one story single family dwelling white in color with black shutters. The shutters are only on the front and right side of the home if looking at the residence from the street. The front door faces west towards the street. There is a green motor vehicle parked in the garage on the East side of the dwelling. The numbers 610 are black and are on the front door of the residence. There are two brick chimney protruding from the roof of the dwelling. A chain link fence runs along the East side of the dwelling. ––––––––––––––––––––– MAGISTRATE/JUDGE ––––––––––––––––––––– APPLICANT 3.16.06 DATE ________________ 3.16.06 DATE ________________ STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY § IN THE GENERAL COURT OF § DlSTRICT COURT DlVISION ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT On 3/14/06 at 1:22am Durham City Police Officers were called to the Kroger on Hillsborough Road. The victim reported to the officers that she had been sexually assaulted at 610 North Buchanan Blvd. The investigation revealed that the victim and another female had an appointment to dance at 610 North Buchanan Blvd. The victim arrived at the residence and joined the other female dancer. The victim reported that they began to perform their dance in master bedroom area. After a few minutes, the males watching them started to get excited and aggressive. The victim and her fellow dancer decided to leave because they were concerned for their safety. As the two women got into a vehicle, they were approached by one of the suspects. He appoligized and requested they go back inside and continue to dance. Shortly after going back into the dwelling the two women were separated. Two males, Adam and Matt pulled her into the bathroom. Someone closed the door to the bathroom where she was, and said "sweet heart you can't leave." The vic...
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