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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
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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
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.”
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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.
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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.
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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.
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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
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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
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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.
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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?
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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
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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?
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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.
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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.
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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
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§
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)
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MAGISTRATE/JUDGE
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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 - -
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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.
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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.
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MAGISTRATE/JUDGE
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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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