The Criminal Justice System, How does it work?

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Answer each question in a minimum of 300 words (USE PROVIDED MATERIAL PDF book to answer the questions along with another source, cite/reference in APA format and PLEASE include in-text citations after the first "says who fact" of a paragraph, also include the link to your other sources.

1.) Describe the procedural rights in the Fourth, Fifth, Sixth, and Eighth Amendments (chpt.4).

2.) Explain the concepts of legal precedent and stare decisis (chpt 4. pg 101).

boh11536_ch02_025-057.indd Page 25 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles 2 Crime and Its Consequences L I D D E L L , Learning Objectives After completing this chapter, you should be able to: 1. Distinguish between a social definition and a legal definition of crime, and summarize the problems with each. 2. List the technical and ideal elements of a crime. 3. Identify some of the legal defenses or legal excuses for criminal responsibility. Chapter Outline Definitions of Crime Social Definitions A Legal Definition Elements of Crime T I F F A N Y Degrees or Categories of Crime Measurement of Crime 1 5 Crime Rates 6 Uniform Crime Reports (UCR) 8 National Incident-Based Reporting System (NIBRS) National Crime Victimization Surveys (NCVS) T S Self-Report Crime Surveys Crime Statistics 4. Explain why crime and delinquency statistics are unreliable. 5. Identify the two major sources of crime statistics in the United States. 6. Describe the principal finding of the national crime victimization surveys. 7. Summarize the general finding of self-report crime surveys. 8. Identify the costs of crime. 9. Describe the characteristics of people most likely to fear crime. 10. List the characteristics of people who are the most likely and the least likely to be victims of crime. Costs of Crime Fear of Crime What People Fear Who Fears Crime How People Respond to a Fear of Crime Victims of Crime Victimization Trends Who the Victims Are 25 boh11536_ch02_025-057.indd Page 26 10/06/11 4:02 AM user-f494 26 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice CRIME STORY J esse Bratcher (pictured) killed Jose Medina. What makes this case unusual is that Bratcher’s Oregon trial jury found him guilty but insane as a result of posttraumatic stress disorder (PTSD). In December 2009, he was sentenced to the custody of Oregon State Hospital psychiatrists rather than to prison. The precedent-setting ruling is believed to be the first time a military veteran has escaped a murder conviction by claiming to have suffered from PTSD. On the night of August 14, 2008, Bratcher’s fiancée, Celena Davis, told him that she was pregnant but the baby was not his. She told him that she had been raped by Medina two months earlier. Bratcher, a former Oregon National guardsman, who, in 2005–2006, had spent 11 months at Forward Operating Base Warrior in Kirkuk, Iraq, fell silent. He then went into the next room and put the barrel of an AK-47 in his mouth but decided not to commit suicide. Bratcher stayed up all night, cut Celena’s hair, made her walk about two miles to the hospital when she started getting cramps, and then went with her to get her name tattooed on him. The next day Jesse and Celena drove to the hardware store and, while FYI Crime The word “crime” is from the Latin crimen, meaning “accusation” or “fault.” Source: Webster’s New Twentieth Century Dictionary of the English Language Unabridged (Parsippany, NJ: Williams Collins, 1980). Celena waited in the truck, Jesse went Administration hospital several times in and bought a gun. When he got back complaining of PTSD. Doctors rejected to the truck, he loaded the gun and his first claim of PTSD, but later asked Celena, “Do we go to the police, declared him 70 percent and then 100 or do we go find the guy?” They went percent disabled. They sent him home to the police station, but it was with medication to calm him down and Saturday and the main door was help him sleep. The jury bought the locked. They did not realize that an L emergency door was located on the I side of the building. They then drove to D to Jose Medina’s trailer. According Medina’s friends and family, D Medina, a divorced father of three, once had a E relationship with Celena. However, L when confronted by Bratcher, Medina L but later at first denied knowing Celena admitted knowing her and,having con- defense and convicted Bratcher of mur- sensual sex with her. Medina told backward. Medina’s family does not Bratcher that if the baby was his, he understand why Jose’s killer is not would take care of it. Bratcher being punished. T I six responded by shooting Medina times; the final shot killed F him. At his murder trial, the prosecutor F argued that the one-time grocery clerk A had hunted down and killed Medina. Ncountered Bratcher’s defense attorney that his client had experienced Y flash- der by reason of insanity due to PTSD. According to Oregon law, Bratcher could have been convicted of firstdegree manslaughter had the jury found him a sane person acting in the heat of passion. A month after the shooting, Bratcher and Davis got married in the jail. They now have a daughter named Nevaeh—which is heaven spelled Among the topics discussed in Chapter 2 are legal defenses for criminal responsibility. Should PTSD be a legal defense for criminal responsibility? Can PTSD cause insanity and impair a person’s ability to control his or her actions? Do you believe the murder of backs from PTSD during his stressful Jose Medina was caused by Bratcher’s confrontation with Medina and, there- PTSD? Why or why not? Do you believe fore, was not in control of his actions. A that Jesse Bratcher should have been 1 sociologist who testified at5the trial characterized Bratcher as6“a walking time bomb.” Following his tour of duty in 8 Iraq, Bratcher went to the Veteran’s T S punished more severely? Why or why not? The answers to these questions reveal much about crime and its consequences. Definitions of Crime The object of criminal justice in the United States is to prevent and control crime. Thus, to understand criminal justice, one must understand crime. An appropriate definition of crime, however, remains one of the most critical unresolved issues in criminal justice today. One problem is that many dangerous and harmful behaviors are not defined as crimes, while many less dangerous boh11536_ch02_025-057.indd Page 27 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences 27 and less harmful behaviors are. We begin, then, by examining how crime is defined and the problems with defining what a crime is. SOCIAL DEFINITIONS The broadest definitions of crime are social definitions. A typical social definition of crime is behavior that violates the norms of society—or, more simply, antisocial behavior. A norm is any standard or rule regarding what human beings should or should not think, say, or do under given circumstances. Because social definitions of crime are broad, they are less likely than narrower definitions to exclude behaviors that ought to be included. Nevertheless, there are several problems with social definitions of crime. First, norms vary from group to group within a single society. There is no uniform definition of antisocial behavior. Take, for example, the acts involved in gambling, prostitution, abortion, and homosexual behavior. As current public debates indicate, there is much controversy inLthe United States over whether those acts should be crimes. Even with actsIabout which there seems to be a consensus, like murder and rape, there is no agreement on what constitutes such acts. For example, if a patient dies from D a disease contracted from a doctor who did not wash his or her hands before examining the patient, has D the doctor committed murder? Or, if a man has forcible sexual intercourse with a woman against her will but, before the act, at the E woman’s request, puts on a condom so that the woman will not get a sexually transmitted disease, has L difficulty of determinthe man committed rape? Those examples illustrate the ing what, in fact, constitutes antisocial behavior, let L alone crime. Second, norms are always subject to interpretation. Each norm’s meaning has a history. Consider abortion, for example. For ,some people, abortion is the killing of a fetus or a human being. For other people, abortion is not killing because, for them, human life begins at birth and not at conception. For the latter group, the abortion issue concerns women’s freedom to control T their own bodies. For the former group, abortion constitutes an injustice to I the helpless. Third, norms change from time to time and from F place to place. For example, the consumption of alcohol was prohibited in the United States during F Until the passage of the the 1920s and early 1930s but is only regulated today. Harrison Act in 1914, it was legal in the United States A to use opiates such as opium, heroin, and morphine without a doctor’s prescription. Such use is proN hibited today. Casino gambling is allowed in some states but forbidden in other states. Prostitution is legal in a few counties in Nevada butYillegal in the rest of the United States. Prior to the mid-1970s, a husband could rape his wife with impunity in all but a handful of states. Today, laws in every state prohibit a 1 husband from raping or assaulting his wife. 5 A LEGAL DEFINITION 6 In an attempt to avoid the problems with social defi 8nitions of crime, a legal definition of crime is used in criminal justice in the United States. A typical T of the criminal law or legal definition of crime is this: an intentional violation penal code, committed without defense or excuse and S penalized by the state. The major advantage of a legal definition of crime, at least on the surface, is that it is narrower and less ambiguous than a social definition of crime. If a behavior violates the criminal law, then by definition it is a crime. However, although a legal definition eliminates some of the problems with social definitions of crime, a legal definition of crime has problems of its own. First, some behaviors prohibited by the criminal law arguably should not be. This problem of overcriminalization arises primarily in the area of socalled victimless crimes. Lists of victimless crimes typically include gambling, prostitution involving consenting adults, homosexual acts between consenting adults, and the use of some illegal drugs, such as marijuana. norm Any standard or rule regarding what human beings should or should not think, say, or do under given circumstances. legal definition of crime An intentional violation of the criminal law or penal code, committed without defense or excuse and penalized by the state. overcriminalization The prohibition by the criminal law of some behaviors that arguably should not be prohibited. boh11536_ch02_025-057.indd Page 28 10/06/11 4:02 AM user-f494 28 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice Ultimately, whether those acts should or should not be prohibited by criminal law depends on whether they are truly victimless—an issue we will not debate here. Perhaps less controversial are some of the following illegal behaviors: • It is illegal for a driver to be blindfolded while operating a vehicle in Alabama. • In California, it is illegal to trip horses for entertainment, to possess bear gall bladders, or to peel an orange in your hotel room. • It is illegal to throw shoes at weddings in Colorado. • In Connecticut, it is illegal to walk across the street on your hands. • Women in Florida may be fined for falling asleep under L a hair dryer, as can the salon owner. • Idaho state law makes it illegal for a man to give I sweetheart a box of candy weighing less than his 50Dpounds. • It is illegal to take a bath in the wintertime in Indiana. D • Kisses may last for as much as, but no more than, 5E minutes in Iowa. • InLMichigan a woman isn’t allowed to cut her own hair without her husband’s permission. • ItLis illegal to slurp soup in New Jersey. • Beer , and pretzels can’t be served at the same time in any bar or restaurant in North Dakota. • Violators in Oklahoma can be fined, arrested, or jailed for making ugly faces at a dog. More and more states are legalizing casino gambling as a means T • The state law of Pennsylvania prohibits singing in of generating income. Is this a desirable trend? Why or why not? the I bathtub. • In South Dakota, a woman over 50 is not allowed toFgo outside and strike up a conversation with a married man older than 20. F • In Tennessee it is illegal to shoot any game other than whales from a moving automobile. A • In Texas, it is illegal to take more than three sips of beer at a time while N standing. • It is an offense in Washington state to pretend your parents are rich.1 Y nonenforcement The failure to routinely enforce prohibitions against certain behaviors. undercriminalization The failure to prohibit some behaviors that arguably should be prohibited. A second problem with a legal definition of crime is that for some behaviors prohibited by criminal law, 1 the law is not routinely enforced. Nonenforcement is common for many white-collar and government crimes. It is also common 5 those that require stores and other commercial for blue laws, for example, establishments to be closed on Sundays. Many jurisdictions in the United 6 States have blue laws, or they did until recently. The principal problem with the nonenforcement of prohibitions is that it causes disrespect for the law. 8 People come to believe that because criminal laws are not routinely enforced, T obey them. there is no need to routinely A third problem with S a legal definition of crime is the problem of undercriminalization. That is, some behaviors that arguably should be prohibited by criminal law are not. Have you ever said to yourself that there ought to be a law against whatever it is you are upset about? Of course, most of the daily frustrations that people claim ought to be crimes probably should not be. Some people argue, however, that some very harmful and destructive actions or inactions that are not criminal should be. Examples include the government allowing employers (generally through the nonenforcement of laws) to maintain unsafe working conditions that cause employee deaths and injuries, and corporations’ intentional production of potentially hazardous products to maximize profits.2 boh11536_ch02_025-057.indd Page 29 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences 29 ELEMENTS OF CRIME A legal definition of crime is the basis of criminal justice in the United States. The legal definition of crime provided earlier in this chapter, however, is only a general definition. It does not specify all the elements necessary to make a behavior a crime. Technically and ideally, a crime has not been committed unless all seven of the following elements are present.3 1. 2. 3. 4. 5. 6. 7. Harm Legality Actus reus Mens rea Causation Concurrence Punishment L Only in a technical and ideal sense must all seven Ielements be present. In practice, a behavior is often considD Ever since criminal sanctions were established for illegal drug use, ered a crime when one or more of the elements of crime some have argued for decriminalization by elimination or reduction D are absent. We will examine each of the seven elements of criminal penalties for possession or distribution of certain drugs. in turn, indicating exceptions to the technical and the E Do you agree with this argument? Why or why not? ideal where relevant. L Harm For crime to occur, there must be an external L consequence, or harm. A harm The external consequence mental or emotional state is not enough. Thus, thinking about committing a required to make an action a crime. , acting on the thought or crime or being angry enough to commit a crime, without the anger, is not a crime. The harm may be physical or verbal. Physically striking another person without legal justification is an example of an act that Tdoes physical harm. An example of an act that does verbal harm is a threat to strike another person, I whether or not the threat is carried out. Writing something false about another person that dishonors or injures that person is a physical harm called libel. F The spoken equivalent of libel is called slander. Whether the legal element of harm is present inFall crimes is sometimes questioned. Some crimes, such as gambling, prostitution, marijuana consumpA tion, and certain consensually committed sexual acts such as sodomy, have come to be called “victimless crimes” by those who N argue that only those people involved in these behaviors are harmed, if at all. Other people maintain Y of society are jeoparthat the participants, their families, and the moral fabric dized by such behavior. In short, there is considerable debate as to whether so-called victimless crimes really are harmless. 1 Legality The element of legality has two aspects. First,5the harm must be legally forbidden for a behavior to be a crime. Thus, violations of union rules, school rules, religious rules, or any rules other than those of a6political jurisdiction may be “wrong,” but they are not crimes unless they are also 8 prohibited by criminal law. Furthermore, rude behavior may be frowned upon, but it is not criminal. Second, a criminal law must not be retroactive, orT ex post facto. An ex post facto law (1) declares criminal an act that was not illegal when it was comS mitted, (2) increases the punishment for a crime after it is committed, or (3) alters the rules of evidence in a particular case after the crime is committed. The first meaning is the most common. The U.S. Constitution (Article I, Section 10.1) forbids ex post facto laws. Actus reus The Latin term actus reus refers to criminal conduct—specifically, intentional or criminally negligent (reckless) action or inaction that causes harm. Crime involves not only things people do but also things they do not do. If people do not act in situations in which the law requires them to act, they are committing crimes. For example, parents are legally required to provide their legality The requirement (1) that a harm must be legally forbidden for the behavior to be a crime and (2) that the law must not be retroactive. ex post facto law A law that (1) declares criminal an act that was not illegal when it was committed, (2) increases the punishment for a crime after it is committed, or (3) alters the rules of evidence in a particular case after the crime is committed. actus reus Criminal conduct— specifically, intentional or criminally negligent (reckless) action or inaction that causes harm. boh11536_ch02_025-057.indd Page 30 10/06/11 4:02 AM user-f494 30 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice children with adequate food, clothing, and shelter. If parents fail to provide those necessities—that is, if they fail to act when the law requires them to—they are committing a crime. mens rea Criminal intent; a guilty state of mind. negligence The failure to take reasonable precautions to prevent harm. Mens rea The Latin term mens rea refers to criminal intent or a guilty state of mind. It is the mental aspect of a crime. Ideally, criminal conduct is limited to intentional or purposeful action or inaction and not to accidents. In practice, however, reckless actions or negligence may be criminal. Negligence is the failure to take reasonable precautions to prevent harm. In some cases, offenders lack the capacity (sometimes called competence) to form mens rea. If they do not have that capacity, they are not to be held responsible for their criminal conduct. If they have a diminished capacity to form mens rea, they are to be held less than fully responsible. In other cases, offenders who have the capacity to form mens rea are not held responsible for their crimes or are held less responsible for them, either because they did not L have mens rea when they acted or because there were extenuating circumstances when they did actI with mens rea. D considered responsible or D is considered less responsible for an offense if he or she, for example, (1) acted under duress, (2) was underage, (3) was insane, (4) acted E of a third party, (5) was entrapped, or (6) acted out in self-defense or in defense of necessity. Those conditions L are legal defenses or legal excuses for criminal responsibility. L to commit a crime but was forced or coerced to do If a person did not want so against his or her will,,he or she committed the crime under duress and is generally excluded from criminal liability. Suppose that an intruder held a gun Legal Defenses for Criminal Responsibility In the United States, an offender is not duress Force or coercion as an excuse for committing a crime. FYI Legal Infancy On July 29, 2010, an Indianapolis, Indiana, 4-year-old boy picked up a loaded .45-caliber handgun that had been left on the kitchen table and shot and killed a 3-year-old girl in front of his siblings. Because of his age, he likely will not be charged or held criminally responsible because, legally, he could not form mens rea or the intent to kill. Source: “Police: 4-Year-Old Boy Kills 3-Year-Old Playmate With Gun,” accessed December 29, 2010, /police-year-old-boy-kills-year-old-playmate-gun/. juvenile delinquency A special category of offense created for young offenders, usually those between 7 and 18 years of age. insanity Mental or psychological impairment or retardation as a defense against a criminal charge. to the head of a loved one and threatened to kill that person if you did not rob a local convenience store and return immediately to give the intruder the T money. If you committed the robbery to save the life of your loved one, you would probably not be held I legally responsible for the crime because you committed it under duress. There were extenuating circumstances when you acted F all offenders from claiming duress, the burden of with mens rea. To prevent proof is placed on the defendant. F Another legal excuse or legal defense against criminal responsibility is being Aat which a person is considered legally responsible underage. Although the age for his or her actions varies by jurisdiction, in most American jurisdictions, a N child under the age of 7 is not held responsible for a crime. It is assumed that a child under 7 years of age Y does not have the capacity to form mens rea. A child under 7 years of age is considered a legal infant or of legal nonage. Such a child is protected by criminal law but not subject to it. Thus, if a 6-year-old child picks up a shotgun and shoots his 1 or her parent, the child is unlikely to be charged with a crime. However, if a parent abuses a child, the criminal law protects the 5 parent responsible for his or her actions. child by holding the abusive In most developed countries, children under 18 years of age are not consid6 ered entirely responsible for their criminal acts. It is assumed that their capacity to form mens rea is not8fully developed. A special category of offense called juvenile delinquency has been created for those children. In most American T limit for juvenile delinquency is 18. The lower jurisdictions, the upper age limit is usually 7. Criminal S law generally treats anyone who is 18 or older as an adult. However, the upper age limit of juvenile delinquency is lower in some jurisdictions and sometimes varies with the sex of the offender. In some jurisdictions there is a legal borderland between the ages of 16 and 18. An offender in that age range may be treated as a juvenile or as an adult, depending on the severity of the offense. In some cases, an offense is considered heinous enough for a court to certify a juvenile, regardless of age, as an adult and to treat him or her accordingly. The subject of juvenile delinquency is discussed more fully in Chapter 13. A third legal defense or legal excuse from criminal responsibility is insanity. Insanity is a legal term, not a medical one. It refers to mental or psychological boh11536_ch02_025-057.indd Page 31 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences 31 Figure 2.1 Insanity Tests by State WA-D NH-D MT* ND-S OR-D MN-D ID* MA-S WI-D SD-D OH-D IL-D UT* CO-S KS AZ-D* OK-S NM-S TX-D AK-D* MO-D L I AR-D D MS-S D LA-D E L L , Notes: HI-D MP PA-D IA-D NE-D NV-D NY-D RI-D CT-D MI-S WY-D CA-D ME-D VT-D IN-D -S W V VA-D KY-D NJ-S DE-D MD-D DC-D FED NC-D TN-S SC-D AL-D GA-D* FL-S * = guilty but mentally ill or guilty but insane verdict allowed D = burden of proof on defendant S = burden of proof on state GU T I F Source: “The Insanity Defense Among the States,” accessed December 29, 2010, http://criminal.findlaw F .com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-the-states.html. A N impairment or retardation. Like many of the other legal defenses or excuses, Y who is insane at the an insanity defense rests on the assumption that someone AL = M’Naghten Rule or some version of it CO = M’Naghten Rule + Irresistible-Impulse Test AR = Model Penal Code or some version of it NH = A version of Durham’s Rule ID = Abolished Insanity Defense time of a crime lacks the capacity, or has diminished capacity, to form mens rea. Thus, that person either should not be held responsible or should be held less responsible for a given crime. 1 In most western European nations, legal insanity is determined solely by 5 and American law, by the judgment and testimony of medical experts. British contrast, provide guidelines for judges, juries, and medical experts to follow 6 in determining whether a defendant is legally insane. The oldest of those 8 it, which was first used guidelines is the M’Naghten rule, or some variation of in an English trial in 1843 and is now used in 21 states T (see Figure 2.1). Under the M’Naghten rule: S Every man is to be presumed to be sane, and . . . to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.4 In short, according to the M’Naghten rule, which is also referred to as the “rightand-wrong test,” a person is legally insane if, at the time of the commission of the act, he or she (1) did not know the nature and quality of the act or (2) did not know that the act was wrong. The burden of proof is on the defendant. CJ Online Daniel M’Naghten Daniel M’Naghten was acquitted of the murder of a person he had mistaken for his real target, Sir Robert Peel, then the Prime Minister of Great Britain. M’Naghten claimed that he was delusional at the time of the killing. Go to /law/bclc/web/mnaghten.htm and research the M’Naghten case. Explain the insanity defense in that case and give your opinion about the court’s ruling. boh11536_ch02_025-057.indd Page 32 10/06/11 4:02 AM user-f494 32 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice MYTH The availability of an insanity defense allows dangerous offenders to escape conviction and go free. FACT Defendants found not guilty by reason of insanity rarely go free. Generally, they are confined to a mental institution until they are deemed by the committing court or some other judicial body to be sane or no longer dangerous. Research shows that the insanity defense is used in less than 1% of criminal cases, and only about one in four is successful. Source: John P. Martin, “The Insanity Defense: A Closer Look,” accessed March 10, 2011, /longterm/aron/qa227.htm One problem with the M’Naghten rule is the difficulty of determining what a person’s state of mind was at the time of the commission of the criminal act. The rule has also been criticized for its ambiguity. What is a “defect of reason,” and by whose standards is the act a product of defective reason? Does “disease of the mind” refer to organic diseases, nonorganic diseases, or both? What does it mean to “know” the nature and quality of the act? Does it mean an intellectual awareness, an emotional appreciation, or both? Does “wrong” mean legally wrong, morally wrong, or both? Perhaps the most serious problem with the M’Naghten rule is that it does not address the situation of a defendant who knew the difference between right and wrong but was unable to control his or her actions. To remedy that problem, four states have adopted the irresistible-impulse or control test and use it in conjunction with the M’Naghten rule (see Figure 2.1). In those states a defense against conviction on grounds of insanity is first made by using the M’Naghten rule. If the conditions of M’Naghten are met, the irresistible-impulse or control test is applied.LIf it is determined that the defendant knew that he or she was doing wrong at the time of the commission of the criminal act but I his or her behavior, the defendant is entitled to nevertheless could not control an acquittal on the grounds Dof insanity. The major problem with the irresistibleimpulse or control test is distinguishing between behavior that is uncontrollable and behavior that isD simply uncontrolled. The test for insanity used by another 21 states is the substantial-capacity test of the American LawE Institute’s Model Penal Code or some version of it. Under that test, a defendant L is not to be found guilty of a crime “if at the time of such conduct as a result of mental disease or defect he lacks substantial L the criminality of his conduct or to conform his capacity either to appreciate conduct to the requirements , of law.” By using the term substantial capacity, the test does not require that a defendant be completely unable to distinguish right from wrong. The test has been criticized for its use of the ambiguous terms substantial capacity and appreciate. It also does not resolve the problem T of determining whether behavior is uncontrollable or uncontrolled. A final insanity test used I only in New Hampshire is a version of Durham’s Rule and is referred to as “the product test.” The product test is a two-prong test in which the defenseFmust show that (1) the defendant suffered from a mental disease or defect and F (2) the murder was a product of that disease or defect. A problem with the product test is that neither the New Hampshire A courts have defined the terms mental disease legislature nor New Hampshire and defect, leaving interpretation entirely to juries. N Y 1 5 6 8 T S In a 1994 trial in Virginia, attorneys for Lorena Bobbitt, who had sliced off her husband’s penis with a kitchen knife while he was sleeping, successfully used the irresistible-impulse defense against charges of malicious wounding. She claimed that she had been subjected to physical and sexual abuse for years during her marriage. She was acquitted of the crime. Was Bobbitt’s act uncontrollable or uncontrolled? Defend your answer. boh11536_ch02_025-057.indd Page 33 10/06/11 4:02 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 2 Crime and Its Consequences Following the public uproar over the 1982 acquittal of John Hinckley, the would-be assassin of President Ronald Reagan, on the grounds that he was legally insane, five states, including three states that have otherwise abolished the insanity defense, enacted “guilty but insane” or “guilty but mentally ill” laws (See Figure 2.1). Defendants who are found guilty but insane generally receive sentences that include psychiatric treatment until they are cured. Then they are placed in the general prison population to serve the remainder of their sentences. States are free to abolish insanity as a defense. The first state to do so was Montana in 1979. Idaho, Utah, and Kansas are the only other states that have eliminated any possibility of a criminal defendant being found not guilty by reason of insanity.5 Figure 2.1 shows the insanity test used by each state (and Washington, DC), as well as which party, either the defendant or the state, has the burden of proof, and the states that allow guilty but mentally ill or guilty but insane verdicts. A fourth legal defense or legal excuse from criminal L responsibility is selfdefense or the defense of a third party. Generally, people are relieved of crimiI reasonably necessary to nal responsibility if they use only the amount of force defend themselves or others against an apparent threat D of unlawful and immediate violence. When it comes to the protection of property, however, the use of force is much more limited. Deadly force is not allowed, D but nondeadly force may be used to protect one’s property. In 2005, Florida became the first state to pass the National Rifle Association–backed “castle E doctrine” law or, as it is sometimes called, the “stand your ground” law. Since L then, at least 15 other states have followed suit, though the wording varies among states. The law generally provides that someone attacked in his or herLhome can use reasonable force, including deadly force, to protect his or another’s , life without any duty to retreat from the attacker. In Florida, the “no duty to retreat” language also applies to street crimes. In some states, the law applies to other locations besides a home, such as a place where a person is a guest or a workplace. Some verT sions provide criminal or civil immunity for someone who legally uses force in self-defense. Most of the laws presume that a personI breaking into someone’s house has the intent of a violent or forceful act. The law’s name comes from F people are not held the notion that “one’s home is one’s castle.”6 The reason legally responsible for acting in self-defense or in defense of a third party is F that, because of extenuating circumstances, they do not act with mens rea. A criminal responsibilEntrapment is a fifth legal defense or legal excuse from ity. People are generally considered either not responsible or less responsible N for their crimes if they were entrapped, or induced into committing them, by a law enforcement officer or by someone acting as anYagent for a law enforcement officer, such as an informer or an undercover agent. A successful entrapment defense, however, requires proof that the law enforcement officer or his or her agent instigated the crime or created the intent 1 to commit the crime in the mind of a person who was not already predisposed to committing it. Thus, 5 affords someone an it is not entrapment if a law enforcement officer merely opportunity to commit a crime, as, for example, when an undercover agent 6 poses as a drug addict and purchases drugs from a drug dealer. The final legal defense or legal excuse from criminal 8 responsibility to be discussed here is necessity. A necessity defense can be used when a crime has T In such a situation, been committed to prevent a greater or more serious crime. there are extenuating circumstances, even though theSact was committed with mens rea. Although it is rarely used, the necessity defense has been invoked occasionally, especially in cases of “political” crimes. The necessity defense was used successfully by Amy Carter (daughter of former President Jimmy Carter), Jerry Rubin, and other activists who were charged with trespassing for protesting apartheid on the property of the South African embassy in Washington, DC. The court agreed with the protesters that apartheid was a greater crime than trespassing. Interestingly, the law does not recognize economic necessity as a defense against or an excuse from criminal responsibility. Therefore, the unemployed and hungry thief who steals groceries cannot successfully employ the necessity defense. 33 entrapment A legal defense against criminal responsibility when a person, who was not already predisposed to it, is induced into committing a crime by a law enforcement officer or by his or her agent. necessity defense A legal defense against criminal responsibility used when a crime has been committed to prevent a more serious crime. boh11536_ch02_025-057.indd Page 34 10/06/11 4:02 AM user-f494 34 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice FYI Causation A fifth ideal legal element of crime is causation, or a causal relationThe Year-and-a-Day Rule The rule that a person cannot be prosecuted for murder if the victim dies more than a year and a day after the injury is based on thirteenth-century English common law. Source: Tennessee v. Rogers, 992 S.W.2d 393 (1999); United States v. Jackson, 528 A.2d 1211, 1214 (D.C. 1987). ship between the legally forbidden harm and the actus reus. In other words, the criminal act must lead directly to the harm without a long delay. In a recent case in Georgia, for example, a father was accused of murdering his baby daughter. The murder charges were dropped, however, because too much time had passed between the night the 3½-month-old girl was shaken into a coma and her death 18 months later. Because of Georgia’s year-and-a-day rule, the father was not charged with murder, but he still faced a charge of cruelty to children, which in Georgia carries a maximum sentence of 20 years. The purpose of the requirement of causation is to prevent people from facing the threat of criminal charges the rest of their lives. Concurrence Ideally, for any behavior to be considered a crime, there must be concurrence between the actus reus and the mens rea. In other words, the criminal conduct and the criminal intent must occur together. For example, suppose you call someone to repair L your broken washing machine, and that person comes to your home, fixes your washing machine, and on the way out takes your televiI sion set. The repair person cannot be found guilty of entering your home illegally (trespass) because that wasDnot his or her initial intent. However, the repair person can be found guilty of stealing your television set. D E ideal legal elements of a crime is punishment. For a Punishment The last of the behavior to be considered L a crime, there must be a statutory provision for punishment or at least the threat of punishment. Without the threat of punishment, a law is unenforceable andLis therefore not a criminal law. , DEGREES OR CATEGORIES OF CRIME T mala in se Wrong in themselves; a description applied to crimes that are characterized by universality and timelessness. mala prohibita Offenses that are illegal because laws define them as such; they lack universality and timelessness. Crimes can be classified according to the degree or severity of the offense, according to the nature ofI the acts prohibited, or on some other basis, such as a statistical reporting scheme. One way crimes are distinguished by degree or severity of the offense is F by dividing them into felonies and misdemeanors. The only way to determine F whether a crime is a felony or misdemeanor is by knowing the legislated punishment. Consequently, a felony in one jurisdiction might be a misdemeanor A in another jurisdiction, and vice versa. Generally, a felony, as noted in Chapter 1, is a relatively serious offense punishable by N death, a fine, or confinement in a state or federal prison for more than 1 year. A misdemeanor, in contrast, Y is any lesser crime that is not a felony. Misdemeanors are usually punishable by no more than a $1,000 fine and 1 year of incarceration, generally in a county or city jail. Another way of categorizing 1 crimes is to distinguish between offenses that are mala in se and offenses that are mala prohibita. Crimes mala in se are 5 are characterized by universality and timeless“wrong in themselves.” They ness. That is, they are crimes everywhere and have been crimes at all times. 6 Examples are murder and rape. Crimes mala prohibita are offenses that are illegal because laws define8them as such. They lack universality and timelessness. Examples are trespassing, gambling, and prostitution. For statistical reportingTpurposes, crimes are frequently classified as crimes against the person or violent S crimes (for example, murder, rape, assault); crimes against property or property crime (for instance, burglary, larceny, auto theft); and crimes against public decency, public order, and public justice or public order crimes (for example, drunkenness, disorderly conduct, vagrancy). Table 2.1 is a list of selected crimes and their definitions, grouped by type. The selection, placement, and definition of the crimes are somewhat arbitrary. There are many different types of crime, and some crimes can be placed in more than one category. Legal definitions of crime vary among jurisdictions and frequently list numerous degrees, conditions, and qualifications. A good source of legal crime definitions is Black’s Law Dictionary. boh11536_ch04_094-134.indd Page 94 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles 4 The Rule of Law L I D D E L L , Chapter Outline Two Types of Law: Criminal Law and Civil Law Substantive versus Procedural Law Ideal Characteristics of the Criminal Law T I F F A N Y Criminal Law as a Political Phenomenon Creating Criminal Laws in the United States Procedural Law: Rights of the Accused The Bill of Rights The Fourteenth Amendment and the Selective Incorporation of the Bill of Rights The Fourth Amendment The Fifth Amendment The Sixth Amendment The Eighth Amendment Protecting the Accused from Miscarriages of Justice 94 1 5 6 8 T S Learning Objectives After completing this chapter, you should be able to: 1. Distinguish between criminal law and civil law. 2. Distinguish between substantive law and procedural law. 3. List five features of “good” criminal laws. 4. Explain why criminal law is a political phenomenon. 5. Summarize the origins of American criminal law. 6. Describe the procedural rights in the Fourth Amendment. 7. Describe the procedural rights in the Fifth Amendment. 8. Describe the procedural rights in the Sixth Amendment. 9. Describe the procedural rights in the Eighth Amendment. 10. Explain why procedural rights are important to those accused of crimes. boh11536_ch04_094-134.indd Page 95 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 95 CRIME STORY O and ordered them to drive. They eventu- sentenced to 75 years. Massingill, who ally ordered the male driver to pull over is also serving time for a separate rape to the side of the road and get out of the charge, expects to have his conviction car. The woman tried to flee but was in the Dupree case set aside. n January 4, 2011, Dallas County, pulled back inside. The woman was Texas Judge Don Adams over- then driven to a nearby park, where she innocent since the day he was arrested, turned the conviction of Cornelius was raped at gunpoint. Her assailants arguing that he was the victim of mis- debated killing her but decided to let taken identity. That Dupree was con- the joy overrides the anger. I’m just so L her live. They took her rabbit-fur coat I and her driver’s license and warned her Dthe police, they would that if she called kill her. She ran Dto the nearest highway and collapsed by the side of the road E where she was found unconscious. L About five days later, two men, neither of whose L descriptions matched Dupree, tried to , sell the woman’s coat overwhelmed with the joy of being at a grocery store two miles from the Project took his case in 2006 and, in free.” Dupree was incarcerated longer liquor store. The victims’ stolen car was 2009, received permission to have a than any other Texas prison inmate who found in the parking lot. A month later, vaginal swab luckily preserved from the Dupree Jr. (pictured) and declared him innocent. Dupree, now 51-years-old, had served 30 years in a Texas prison for a crime he did not commit. After being freed, Dupree stated that he had “mixed emotions” about the court hearing because he had been incarcerated for so long. He said, “I must admit there is a bit of anger, but there is also joy, and was later exonerated by DNA evidence. Only two prisoners exonerated by DNA evidence have served longer: James Bain spent 35 years in a Florida prison, and Lawrence McKinney was wrongly incarcerated in Tennessee for 31 years. Dupree’s unfortunate saga began in T I Dupree and Anthony Massingill were arrested because F they looked similar to two men sought in another sexual F assault and robbery case. The female A victim in the first case was shown a N Dupree and photo lineup with Massingill’s photos Y and identified them Dupree had claimed that he was victed based on a misidentification is not particularly surprising since 75% of all wrongful convictions of people later exonerated by DNA evidence were the result of misidentifications. Dupree spent the next three decades appealing, but the Texas Court of Criminal Appeals turned him down three times. The New York–based Innocence case tested for DNA. The test results cleared Dupree and Massingill. Chapter 4 examines the constitutional protections provided to people suspected or charged with crimes in the United States. Despite these protections, miscarriages of justice, such as the one 1979, when a woman and her male as the assailants, but the male victim that befell Cornelius Dupree Jr. and companion stopped at a Dallas liquor was unable to do so. However, at trial Anthony Massingill, occur with some store to buy cigarettes and use a pay- both victims testified that Dupree and regularity. How could Dupree’s night- phone. As they got back in their car, two men, at least one of whom was armed, forced their way into the car, demanded money from the two victims, 1 5 the men who commitMassingill were ted the crime. 6 They were convicted of aggravated robbery (they were not tried 8 on the rape charge), and Dupree was T S mare have happened? The answer to this question reveals the difficulties in administering justice fairly in the United States. Two Types of Law: Criminal Law and Civil Law As discussed in Chapter 2, the conventional, although not necessarily the best, definition of crime is “a violation of the criminal law.” Criminal law is one of two general types of law practiced in the United States; the other is civil law. Criminal law is “a formal means of social control [that] involves the use of rules that are interpreted, and are enforceable, by the courts of a political criminal law One of two general types of law practiced in the United States (the other is civil law); “a formal means of social control [that uses] rules . . . interpreted [and enforced] by the courts . . . to set limits to the conduct of the citizens, to guide the officials, and to define . . . unacceptable behavior.” boh11536_ch04_094-134.indd Page 96 07/06/11 4:51 AM user-f494 96 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice penal code The criminal law of a political jurisdiction. tort A violation of the civil law. civil law One of two general types of law practiced in the United States (the other is criminal law); a means of resolving conflicts between individuals. It includes personal injury claims (torts), the law of contracts and property, and subjects such as administrative law and the regulation of public utilities. substantive law The body of law that defines criminal offenses and their penalties. procedural law The body of law that governs the ways substantive laws are administered; sometimes called adjective or remedial law. due process of law The rights of people suspected of or charged with crimes. community. . . . The function of the rules is to set limits to the conduct of the citizens, to guide the officials (police and other administrators), and to define conditions of deviance or unacceptable behavior.”1 The purpose of criminal justice is to enforce the criminal law. A crime, as noted, is a violation of the criminal law, or of the penal code of a political jurisdiction. Although crime is committed against individuals, it is considered an offense against the state, that is, the political jurisdiction that enacted the law.2 A tort, in contrast, is a violation of the civil law and is considered a private matter between individuals. Civil law includes the law of contracts and property as well as subjects such as administrative law (which deals with the rules and regulations created by government agencies) and the regulation of public utilities. For legal purposes, a particular act may be considered an offense against an individual or the state or both. It is either a tort or a crime or both, depending on how it is handled. For example, a person who has committed an act of assault may beLcharged with a crime. If that person is convicted of the crime, the criminal court may order the offender to be imprisoned in I and to pay a fine of $2,000. Both the jail senthe county jail for 6 months tence and the fine are punishments, with the fine going to the state or local D treasury (in federal court to the national treasury). The criminal court could also order the offender to D pay restitution to the victim. In that case, the offender would pay the victim a sum of money either directly or indirectly, through an intermediary.EIn addition, the victim may sue the offender in civil court for damages, such L as medical expenses or wages lost because of injury. If the offender is found liable (responsible) for the damages because he or she has committed L a tort (civil courts do not “convict”), the civil court may also order the offender to compensate the victim in the amount of , $2,000 for damage to the victim’s interests. The payment of compensation in the civil case is not punishment; it is for the purpose of “making the victim whole again.” T I SUBSTANTIVE VERSUS F PROCEDURAL LAW There are two types of criminal law: substantive and procedural. Substantive F law is the body of law that defines criminal offenses and their penalties. Substantive laws, which are found A in the various penal codes, govern what people legally may and may not do. Examples of substantive laws are those that proN rape, robbery, and other crimes. Procedural law, hibit and penalize murder, sometimes called adjective Y or remedial law, governs the ways in which the substantive laws are to be administered. It covers such subjects as the way suspects can legally be arrested, searched, interrogated, tried, and punished. In other words, procedural 1 law is concerned with due process of law, or the rights of people suspected of or charged with crimes. The last part of this 5 chapter is devoted to a detailed description of procedural law. 6 8 OF THE CRIMINAL LAW IDEAL CHARACTERISTICS Legal scholars identify fiveTfeatures that all “good” criminal laws ideally ought to possess. To the extent S that those features are absent in criminal laws, the laws can be considered “bad” laws, and bad laws do exist. The five ideal features of good criminal laws are (1) politicality, (2) specificity, (3) regularity, (4) uniformity, and (5) penal sanction (see Figure 4.1). politicality An ideal characteristic of criminal law, referring to its legitimate source. Only violations of rules made by the state, the political jurisdiction that enacted the laws, are crimes. Politicality Politicality refers to the legitimate source of criminal law. Only violations of rules made by the state (that is, the political jurisdiction that enacted the laws) are crimes. Violations of rules made by other institutions, such as families, churches, schools, and employers, may be “bad,” “sinful,” or “socially unacceptable,” but they are not crimes because they are not prohibited by the state. boh11536_ch04_094-134.indd Page 97 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 97 Figure 4.1 Ideal Characteristics of Criminal Law Politicality Specificity Regularity Uniformity Violations of rules made by the state, providing strict definitions of specific acts, applied to all persons regardless of social status, enforced against any violators regardless of social status, Penal Sanction and subject to punishment or threatened punishment by the state. L Specificity Specificity refers to the scope of criminalI law. Although civil law may be general in scope, criminal law should provide strict definitions of speD a person stole an aircific acts. The point is illustrated by an old case in which plane but was found not guilty of violating a criminal law that prohibited the D taking of “self-propelled vehicles.” The judge ruled that at the time the law was enacted, vehicles did not include airplanes. Ideally, asEthe Supreme Court ruled in Papachristou v. City of Jacksonville (1972), a statute or ordinance “is void for L vagueness . . . [if] it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” L , Regularity Regularity is the applicability of the criminal law to all persons. Ideally, anyone who commits a crime is answerable for it, regardless of the person’s social status. Thus, ideally, when criminal laws are created, they should T to the men; not only to apply not only to the women who violate them, but also the poor, but also to the rich. In practice, however, this ideal feature of law has I been violated. Georgia’s pre–Civil War criminal laws, for example, provided for a dual system of crime and punishment, with one set of Flaws for “slaves and free persons of color” and another for all other persons. Another example of the vioF M. v. Superior Court lation of this principle is illustrated by the case of Michael of Sonoma County (1981). In this case, the U.S. SupremeACourt upheld California’s statutory rape law that made men alone criminally responsible for the act of ilN licit sexual intercourse with a minor female. Y Uniformity Uniformity refers to the way in which the criminal law should be enforced. Ideally, the law should be administered without regard for the social status of the persons who have committed crimes or are accused of committing 1 crimes. Thus, when violated, criminal laws should be enforced against both young and old, both rich and poor, and so on. However, 5 as is the case with regularity, the principle of uniformity is often violated because some people consider the strict enforcement of the law unjust in 6 some cases. For example, juveniles who are caught misbehaving in violation8of the criminal law are sometimes ignored or treated leniently through the exercise of police or judiT cial discretion. S Penal Sanction The last ideal feature of criminal law is penal sanction, the principle that violators will be punished, or at least threatened with punishment, by the state. Conventional wisdom suggests that there would be no point in enacting criminal laws if their violation were not responded to with punishment or threat of punishment. Most people assume that sanctionless criminal laws would be ignored. Because all criminal laws carry sanctions, the power of sanctionless laws can be left to philosophers to debate. Table 4.1 shows the five general types of penal sanctions currently used in the United States, as well as the purpose and focus of each sanction. Combining different penal sanctions in the administration of justice is not uncommon. specificity An ideal characteristic of criminal law, referring to its scope. Although civil law may be general in scope, criminal law should provide strict definitions of specific acts. regularity An ideal characteristic of criminal law: the applicability of the law to all persons, regardless of social status. uniformity An ideal characteristic of criminal law: the enforcement of the laws against anyone who violates them, regardless of social status. penal sanction An ideal characteristic of criminal law: the principle that violators will be punished or at least threatened with punishment by the state. boh11536_ch04_094-134.indd Page 98 07/06/11 4:51 AM user-f494 98 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice Table 4.1 Five General Types of Penal Sanctions MYTH Law makes people behave. FACT The existence of a law prohibiting a particular behavior does not necessarily prevent an individual from engaging in that behavior. Common sense suggests the implausibility of the notion. Ask yourself, if it were not for laws prohibiting murder, prostitution, or heroin use, for example, would you murder, engage in prostitution, or use heroin? How effective are speed limits in preventing you from exceeding them? Type Purpose Focus Punishment Prevent undesired conduct. Provide retribution (“an eye for an eye”). Offending conduct Restitution Make the victim “whole again” by having the offender directly or indirectly pay the victim. Crime victim Compensation Make the victim “whole again” by having the state pay for damages to the victim. Crime victim Regulation Control future conduct toward the best interests of the community (e.g., making it a crime or traffic violation to operate a motor vehicle with a blood alcohol content higher than a specified level). The entire community L I D Treatment or rehabilitation the offender’s behavior Criminal offender DChange and, perhaps, personality. E L CRIMINAL LAW AS A L POLITICAL PHENOMENON , criminal law is a political phenomenon, that it People sometimes forget that is created by human beings to regulate the behavior of other human beings. Some people, for example, view the criminal law as divinely inspired, something that should not be T questioned or challenged. That viewpoint probably comes from a belief in theI biblical story of Moses receiving the Ten Commandments from God on Mount Sinai. However, as critical theorists are quick to point out, criminal law frequently promotes the interests of some groups over F the interests of other groups. Thus, regardless of the law’s source of inspiration, F gets defined as criminal or delinquent behavior we must understand that what is the result of a politicalA process in which rules are created to prohibit or to require certain behaviors. Nothing is criminal or delinquent in and of itself; N makes it so. only the response of the state Y Origins of Laws Formal, written laws are a relatively recent phenomenon in human existence. The first were created about 5,000 years ago. They emerged with the institutions of property, marriage, and government. “Stateless” societies 1 apparently managed without them for two primary reasons.3 First, most stateless 5 rigid customs to which citizens strictly adhered. societies were governed by Second, crimes of violence were considered private matters and were usually 6 resolved through bloody personal revenge. Formal, written laws partially replaced customs when nation-states appeared, although customs often remained 8 the force behind the laws. Formal laws also replaced customs with the advent of T writing, which allowed recorded legislation to replace the recollections of elders and priests. S The first known written laws (approximately 3000 B.C.) were found on clay tablets among the ruins of Ur, one of the city-states of Sumeria. Attributed to King Urukagina of Lagash, the laws were truly enlightened for their time and attempted to free poor people from abuse by the rich and everybody from abuse by the priests. For example, one law forbade the high priest from coming into the garden of a poor mother and taking wood or fruit from her to pay taxes. Laws also cut burial fees to one-fifth of what they had been and forbade the clergy and high officials from sharing among themselves the cattle that were sacrificed to the gods. By 2800 B.C., the growth of trade had forced the city-states of Sumeria to merge into an empire governed by a single, all-powerful king. boh11536_ch04_094-134.indd Page 99 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law 99 Around 2200 B.C., a war settlement between the Sumerians and the Akkadians produced the Babylonian civilization. Babylonia’s best-known king was Hammurabi (1792–1750 B.C.), who ruled for 43 years. Hammurabi is famous for the first great code of laws. The Code of Hammurabi, like the laws of Moses later, presumably was a gift from God. Hammurabi was said to have received it from the sun god, Shamash, about 1780 B.C. There was a total of 285 laws in the code, arranged under the headings of personal property, real estate, trade and business, the family, injuries, and labor. The Code of Hammurabi combined very enlightened aims, such as “to prevent the strong from oppressing the weak, . . . to enlighten the land and to further the welfare of the people,” with very barbaric punishments. All the ancient nation-states or civilizations had formal L legal codes. In addition to the laws of King Urukagina of I Lagash (Sumeria) and the Code of Hammurabi (Babylonia), legal codes were established by the Egyptians, the AssyrD ians, the Hebrews, the Persians, the Indians, the Chinese, the Greeks (especially the codes of Lycurgus, Draco, D Solon, and Plato), and the Romans (for example, the Twelve Tables, the Justinian Code, and the Law of E the Nations). The development and the content of those legal L codes are of mostly historical interest. The criminal law L of the United States, for the most part, is derived from the laws of England. , England’s Contribution to American Criminal Law Before the Norman Conquest in 1066, England was populated by T Anglo-Saxon tribes that regulated themselves through cus4 tom. Wars between those tribes resulted in the taking ofI the Bas relief depicting King Hammurabi with his code of laws. Why tribal lands of the losers by the leader of the victorious tribe, do people believe that criminal laws come from God? who, by force, made the newly acquired land his own F private property and himself the feudal lord. By the timeFof the Norman Conquest, there were about eight large and relatively independent feudal landholdings. In an A themselves to dispense effort to increase their power, the feudal lords took it on justice among their subjects and began to require that disputes between subjects be N settled in local courts rather than by relatives, as had previously been the custom. When William I of Normandy conquered EnglandYin 1066 and proclaimed himself king, he declared that all land, and all land-based rights, including the administration of justice, were now vested in the king. King William also rewarded the Norman noblemen who had fought with 1 him with large grants of formerly Anglo-Saxon land. 5 To make the dispensing of justice a profitable enterprise for the king and to make sure the local courts remained under his control, the institution of the 6 eyre was created early in the twelfth century. The eyre was composed of traveling judges who represented the king and examined8the activities of the local courts. T of cases of sufficient Of particular interest to the eyre was the resolution seriousness as to warrant the forfeiture of the offender’s S property as punishment. The notion of forfeiture was based on the feudal doctrine that the right Felony to own private property rested on a relationship of good faith between the landowner and his lord. The Norman kings expanded the notion of forfeiture The term felony originally meant an offense serious enough “to break the relato include any violation of the “king’s peace,” which enabled the king to claim tionship between [the landowner and his forfeited property for a variety of offenses, including such minor ones as treslord] and to cause the [land] holding to be passing. It was the responsibility of the judges in eyre to make sure the king forfeited to the lord.” received his portion of forfeited property. A secondary responsibility of the eyre was to hear common pleas, which Source: S. Francis Milson, The Historical consisted primarily of disputes between ordinary citizens. Although common Foundations of the Common Law (London: Butterworths, 1969), 355. pleas could be handled in the local courts, which in many instances were still FYI boh11536_ch04_094-134.indd Page 100 07/06/11 4:51 AM user-f494 100 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice The Magna Carta, signed by England’s King John in 1215, placed limits on royal power and established the principle of the rule of law. Which is preferable: unregulated royal power or the rule of law? Why? influenced by Anglo-Saxon customs, the Norman settlers frequently felt more comfortable having their cases heard in the king’s courts, of which the eyre was one. It was the common-plea decisions made by judges in eyre that formed the body of legal precedent that became known as the common law, that is, the rules used to settle disputes throughout England. Thus, as the judges of eyre resolved common-plea disputes, they created precedents to be followed in similar cases. Because the common law was built case by case, it is sometimes also called case law. Many of the precedents that were created in medieval England became the basis of statutory law in modern England, as well as in the United States. In both countries, some of the early precedents are still used as the basis for settling disputes not covered by statutes. The L efforts of the Norman kings to centralize their power over all of England were only partially successful. I In 1215, powerful landholding nobles rebelled against the heavy D taxation and autocratic rule of King John and forced him to sign the Magna Carta (the Great Charter). The D primary purpose of the Magna Carta was to settle the dispute between the king and his nobles by placing E on royal power. (It did little for the common perchecks son.)L From that time forward, kings and queens of England were supposed to be governed by laws and customsLrather than by their own wills, and the laws were supposed to be applied in a regular and fair way by the , king or queen and his or her judges. Thus, the Magna Carta not only created the idea of the rule of law but also formed the basis of what would later be called due proT cess of law. I CREATING CRIMINALFLAWS IN THE UNITED STATES F In the United States, criminal laws (or criminal statutes) are almost entirely a product of constitutional A authority and the legislative bodies that enact them. They are also influenced by common law or case law interpretation and by N agency decisions. administrative or regulatory Y Constitutions and Legislative Bodies Constitutions generally provide for the creation of legislative bodies empowered to enact criminal and other laws. The U.S. Constitution, for example, 1 created Congress and gave it lawmaking power. The Bill of Rights of the Constitution (the first 10 amendments), as well as similar 5 amendments to state constitutions, also describe procedural laws that dictate how substantive laws are to be administered. Constitutions are important to the sub6 stantive criminal law because they set limits on what can be defined as a crime. As noted, criminal laws 8 are products of the lawmaking bodies created by constitutional authority. Thus, federal statutes are enacted by Congress, and T state legislatures. Laws created by municipalities, state statutes are enacted by such as by city councils,Sare generally called ordinances. Both the federal criminal statutes and the criminal statutes of particular states, including the definitions of crimes and the penalties associated with them, can be found in penal codes, one for each jurisdiction. Generally, statutes and ordinances apply only in the particular jurisdiction in which they were enacted. A crime must be prosecuted in the jurisdiction in which it was committed, and it is generally held to have been committed in the jurisdiction in which it was completed or achieved its goal. Federal crimes violate federal statutes, and state crimes violate state statutes. A crime in one state may not be a crime in another state, but a violation of a federal statute is a crime if committed anywhere in the United States. When a certain boh11536_ch04_094-134.indd Page 101 8/5/11 10:27 AM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 101 L I D D E Federal statutes are enacted by Congress. How does Congress create L statutes? L behavior violates both federal and state statutes, and possibly local ordinances, as is the case with many drug law violations, there is, overlapping jurisdiction. In such cases, there is frequently confusion over which jurisdiction should assume responsibility for the enforcement of the law and the prosecution of T the crime. I F case law whenever they made by trial and appellate court judges, who produce render a decision in a particular case. The decision becomes a potential basis, or F precedent, for deciding the outcomes of similar cases in the future. Although it is possible for the decision of any trial court judge toA become a precedent, it is primarily the written decisions of appellate court judges that do. The reasons on N are the only ones rewhich the decisions of appellate court judges are based quired to be in writing. This body of recorded decisions Y has become known as Common Law Common law, also called case law, is a by-product of decisions common law. Generally, whether a precedent is binding is determined by the court’s location. (The different levels of courts in the United States will be described in detail in Chapter 8.) 1 The principle of using precedents to guide future decisions in court cases is called stare decisis (Latin for “to stand by decided 5 cases”). Much of the time spent by criminal lawyers in preparing for a case is devoted to finding legal 6 precedents that support their arguments. The successful outcome of a case depends largely on the success of lawyers in that endeavor. 8 Although common law was an important source of criminal law in colonial America, it is less so today. Currently, what wereToriginally common law crimes, as well as many new crimes, have been defined S by statutes created by legislatures in nearly all states. There is no federal criminal common law. Nevertheless, as noted previously, common law or case law remains important for purposes of statutory interpretation. Administrative or Regulatory Agency Decisions Administrative or regulatory agencies are the products of statutes enacted by the lawmaking bodies of different jurisdictions. Those agencies create rules, regulate and supervise activities in their areas of responsibility, and render decisions that have the force of law. Examples of federal administrative or regulatory agencies are the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), the Nuclear precedent A decision that forms a potential basis for deciding the outcomes of similar cases in the future; a byproduct of decisions made by trial and appellate court judges, who produce case law whenever they render a decision in a particular case. stare decisis The principle of using precedents to guide future decisions in court cases; Latin for “to stand by decided cases.” FYI Common Law Many states have provisions in their statutes like Florida’s: “The common law of England in relation to crimes . . . shall be of full force in this state where there is no existing provision by statute on the subject.” Source: § 775.01, Fla. Stat. boh11536_ch04_094-134.indd Page 102 07/06/11 4:51 AM user-f494 102 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice L I D D E L Ordinances are the laws of municipalities and are created by city councils, for example, often with more citizen input than laws L created at the state or federal levels of government. How much input should citizens have in the creation of criminal laws? Defend your answer. , CJ Online DEA You can learn more about the programs, major operations, statistics, and so on, of the Drug Enforcement Administration (DEA) by visiting its website at www How much power should the recommendations of regulatory agencies like the DEA have in shaping criminal laws? Regulatory Commission (NRC), the Drug Enforcement Administration (DEA), T and the Occupational Safety and Health Administration (OSHA). There are adI ministrative or regulatory agencies at the state and local levels as well. Although violations of the rules andFregulations of such agencies are generally handled through civil law proceedings, some violations—especially habitual violations— may be addressed throughFcriminal proceedings if provided for by statute. In addition, legislatures often enact criminal statutes based on the recommendaA tions of regulatory agencies. N The Interdependency Among Y Sources of Legal Authority Although federal and state criminal statutes are essentially independent of one another, and although almost all of the action in the enforcement of criminal laws is at the state level, there is an important interdependency among sources of legal authority. 1 Republican National Convention in Dallas, Texas, For example, during the 1984 Gregory Lee Johnson was5part of a political protest of Reagan administration policies. As part of the protest, Johnson burned an American flag. Johnson was 6 arrested and convicted of violating a Texas statute prohibiting the desecration of a venerated object. Several witnesses testified that the flag burning seriously of8 fended them. A state court of appeals affirmed the conviction, but the Texas Court of Criminal Appeals reversed T it, holding that to punish Johnson for burning the flag in this situation was inconsistent with the First Amendment. The U.S. Supreme Court agreed (seeS Texas v. Johnson, 1989). Provisions of the Constitution always take precedence over state statutes. However, if the state statute was not challenged, it would remain in effect in the particular state that enacted it. THINKING CRITICALLY 1. Which of the five features of good criminal laws do you think are most important? Why? 2. Are there any other features that could or should be added to good criminal laws? boh11536_ch04_094-134.indd Page 103 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Procedural Law: Rights of the Accused Most of the procedural or due process rights given to criminal suspects or defendants in the United States are found in the Bill of Rights. The Bill of Rights went into effect December 15, 1791. Other procedural rights are found in state constitutions and federal and state statutes. Probably the best systematic collection of due process rights is the Federal Rules of Criminal Procedure. Those rules apply only to federal crimes prosecuted in federal courts. Most states also have collections of rules regarding criminal procedures in state courts. Ohio, for example, has 60 such rules in its Ohio Rules of Criminal Procedure. THE BILL OF RIGHTS The ink was barely dry on the new Constitution before critics attacked it for not protecting the rights of the people. The First Congress quickly proposed a set of 12 amendments and sent them to the states forLratification. By 1791, the states had ratified 10 of the amendments, which became I known as the Bill of Rights (the first 10 amendments of the Constitution). Although the Bill of D Rights originally applied only to the national government, almost all of its provisions have also been applied to the states through a series of U.S. Supreme D Court decisions. Table 4.2 lists the 12 provisions in the Bill of Rights that are applicable to the criminal justice process. Note that E only two of the provisions—the prohibition against excessive bail and fines and the right to a grand jury indictment—are not yet applicable to the states.L L THE FOURTEENTH AMENDMENT AND THE SELECTIVE , INCORPORATION OF THE BILL OF RIGHTS The Fourteenth Amendment was finally ratified by the required three-fourths T of all states in 1868, shortly after the conclusion of the Civil War. In part, the amendment reads as follows: I F F A N Table 4.2 The 12 Provisions in the Bill of Rights Y Applicable No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. to the Criminal Justice Process Procedural Right 1. 2. 3. 4. 5. 6. 1 Freedom from unreasonable searches and seizures 5 Grand jury indictment in felony cases* 6 No double jeopardy No compelled self-incrimination 8 Speedy and public trial T Impartial jury of the state and district where crime occurred S Amendment Fourth Fifth Fifth Fifth Sixth Sixth 7. Notice of nature and cause of accusation Sixth 8. Confront opposing witnesses Sixth 9. Compulsory process for obtaining favorable witnesses Sixth 10. Counsel Sixth 11. No excessive bail and fines* Eighth 12. No cruel and unusual punishment Eighth Note: *This right has not been incorporated by and made applicable to the states. 103 boh11536_ch04_094-134.indd Page 104 07/06/11 4:51 AM user-f494 104 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice CJ Online ACLU The American Civil Liberties Union is a nonprofit, nonpartisan, advocacy group devoted to the protection of civil liberties for all Americans. You can learn more about the organization and its defense of the Constitution—especially the Bill of Rights—by going to Review the “Key Issues” section, and look at issues such as criminal justice, cyber-liberties, and drug policy. Do you think that organizations like the ACLU are necessary? Why or why not? FYI “Evolving Standards of Decency” In Trop v. Dulles (1958), Chief Justice Warren wrote that the protections of the Bill of Rights “must draw [their] meaning from evolving standards of decency that mark the progress of a maturing society.” One of the interesting and long-debated questions about the Fourteenth Amendment was whether its original purpose was to extend the procedural safeguards described in the Bill of Rights to people charged with crimes at the state level. Before the passage of the Fourteenth Amendment, the Bill of Rights applied only to people charged with federal crimes; individual states were not bound by its requirements. Some justices of the Supreme Court—for example, William Douglas (justice from 1939 to 1975), Hugo Black (justice from 1937 to 1971), and Frank Murphy (justice from 1940 to 1949)—believed that the Fourteenth Amendment was supposed to incorporate the Bill of Rights and make it applicable to the states. However, other justices, perhaps even a majority of them, did not. Thus, until the 1960s, the Supreme Court did not interpret the Fourteenth Amendment as incorporating the Bill of Rights. There are at least three different explanations for the actions or, in this case, inactions of the Supreme Court.5 First, there is little evidence that supporters of the Fourteenth Amendment intended it to incorporate the Bill of Rights. Second, by 1937, a series L of court decisions had established the precedent that the due process clause of the Fourteenth Amendment did not require states to I follow trial procedures mandated at the federal level by provisions in the Bill of Rights. The Supreme Court had held that due process was not violated if D procedures followed in state courts were otherwise fair. Third, there was the states’ rights issue. Because D the administration of justice is primarily a state and local responsibility, many people resented what appeared to be unwarranted interference by the E federal government in state and local matters. Indeed, the Constitution, for the most L part, leaves questions about policing and administering justice to the states, unless a state’s procedure violates a fundamental L principle of justice. Regardless of the reason, , it was not until the early 1960s that the Supreme Court, then headed by Chief Justice Earl Warren, began to selectively incorporate most of the procedural safeguards contained in the Bill of Rights, making them applicable to the states. T Thus, it took nearly 100 years after the ratification of the Fourteenth Amendment for suspects chargedI with crimes at the state level to be afforded most of the same due process protections as people charged with crimes at the federal F however, the composition of the Supreme Court level. During the past 40 years, has changed dramatically,F and with the change in personnel, the Court’s views of due process rights have changed as well. Whereas the politically liberal A championed the rights of criminal suspects by Warren Court of the 1960s extending procedural safeguards, the politically conservative Burger, Rehnquist, N Y 1 5 6 8 T S From left to right: Chief Justices John Roberts, Jr., William Rehnquist, Warren Burger, and Earl Warren. Whereas the politically liberal Warren Court of the 1960s championed the rights of criminal suspects by extending procedural safeguards, the politically conservative Burger, Rehnquist, and Roberts courts of the 1970s to the present have actively reversed or altered in other ways some of the work of the Warren Court. How can the different direction in criminal procedure taken by the Burger, Rehnquist, and Roberts courts be explained? boh11536_ch04_094-134.indd Page 105 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law 105 and Roberts Courts of the 1970s to the present have actively reversed or altered in other ways some of the work of the Warren Court.6 In the rest of this section, we consider the procedural rights in the Bill of Rights, which are found in the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution.7 Before we do, however, note that the specific interpretation of each of the procedural or due process rights has evolved over time through dozens of Supreme Court and lower-court decisions, or precedents. In this introductory examination, we limit our consideration of the legal development of those rights to what we believe are the most consequential cases, the landmark cases. THE FOURTH AMENDMENT The Fourth Amendment reads as follows: L I D The Fourth Amendment (as well as other provisions D of the Constitution) protects individual privacy against certain types of governmental interference. E “right to privacy,” as However, it does not provide a general constitutional many people wrongly believe. Nearly every governmental L action interferes with personal privacy to some extent. Thus, the question in Fourth Amendment cases is limited to whether a governmental intrusion L violates the Constitution.8 The procedural rights in the Fourth Amendment infl , uence the operation of criminal justice in the United States nearly every day. They concern the legalThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. ity of searches and seizures and the question of what to do with evidence that is illegally obtained. Searches are explorations or inspections, by law enforceT ment officers, of homes, premises, vehicles, or persons, for the purpose of discovering evidence of crimes or persons who are accused of crimes. A search I occurs “when an expectation of privacy that society is prepared to consider F are the taking of perreasonable is infringed [by the government].”9 Seizures sons or property into custody in response to violations F of the criminal law. A seizure of property occurs “when there is some meaningful interference [by A in that property.”10 the government] with an individual’s possessory interests In United States v. Mendenhall (1980), the Supreme Court created the folN lowing test for determining whether an encounter constitutes a Fourth Amendment seizure: “A person has been ‘seized’ within the Y meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court provided these examples of situations that might 1 be construed as seizures, even if the person did not attempt to leave: (1) the threatening presence of several officers, (2) the display of a weapon by an 5 officer, (3) some physical touching of the person, or (4) the use of language or a tone of voice that indi6 cated that compliance with the officer’s request might be compelled. In California v. Hodari D. (1991), the Court modified the plurality8 holding in Mendenhall. In Hodari D., the suspect ran from the police, and an officer pursued, thereby T would have believed creating a circumstance in which a “reasonable person that she or he was not free to leave” or to disobey S the officer’s command to halt. There was no physical touching of the suspect. The Court held that in cases involving a “show of authority,” as distinguished from physical touching, no “seizure” occurs unless and until the suspect yields or submits to the assertion of authority. According to the Supreme Court, the Fourth Amendment allows two kinds of searches and seizures: those made with a warrant and those made without a warrant. A warrant is a written order from a court directing law enforcement officers to conduct a search or to arrest a person. An arrest is the seizure of a person or the taking of a person into custody. An arrest can be either taking actual physical custody, as when a suspect is handcuffed by a police officer, searches Explorations or inspections, by law enforcement officers, of homes, premises, vehicles, or persons, for the purpose of discovering evidence of crimes or persons who are accused of crimes. seizures The taking of persons or prop- erty into custody in response to violations of the criminal law. warrant A written order from a court directing law enforcement officers to conduct a search or to arrest a person. arrest The seizure of a person or the taking of a person into custody, either actual physical custody, as when a suspect is handcuffed by a police officer, or constructive custody, as when a person peacefully submits to a police officer’s control. boh11536_ch04_094-134.indd Page 106 07/06/11 4:51 AM user-f494 106 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice or constructive custody, as when a person peacefully submits to a police officer’s control. An arrest can occur without an officer’s physically touching a suspect. The Fourth Amendment requires only that searches and seizures not be “unreasonable.” Searches and seizures conducted with a legal warrant are generally considered reasonable. However, what is “reasonable” in warrantless searches remained vague for more than 100 years after the ratification of the amendment. It was not until a series of cases beginning in the 1960s that the Supreme Court began to provide a more precise definition of the term. Because the law concerning warrantless searches and seizures is complex, only a relatively brief and simplified overview will be provided in that section. Searches and Seizures with a Warrant First, law enforcement officers must contraband An illegal substance or object. have probable cause before a judicial officer can legally issue a search or arrest warrant. Probable cause for L a search warrant requires substantial and trustworthy evidence to support two conclusions: (1) that the specific objects to be searched for are connectedI with criminal activity and (2) that the objects will be found in the place to be searched. In nearly all jurisdictions, law enforcement D officers seeking a search warrant must specify in a signed affidavit, a written and sworn declaration, the facts Dthat establish probable cause. The facts in the affidavit are the basis for determining later whether there was probable cause to issue E Some jurisdictions allow sworn oral testimony to the warrant in the first place. establish probable cause. L Figure 4.2 shows the search warrant affidavit in the Duke lacrosse rape case. L requires that a search warrant contain a particular The Fourth Amendment description of the place to, be searched and the person or things to be seized. Thus, the warrant must be specific enough that a law enforcement officer executing it would know where to search and what objects to seize, even if the officer was not originally involved in the case. However, absolute technical T accuracy in the description of the place to be searched is not necessary. It is required only that an officer I executing a warrant can find, perhaps by asking questions of neighborhood residents, the place to be searched. A warrant may also beFissued for the search of a person or an automobile, rather than a place. A warrant F to search a person should provide the person’s name or at least a detailed description. A warrant to search an automobile should include either the A car’s license number or its make and the name of its owner. N Search warrants are required to be executed in a reasonable amount of time. For example, federal law Y requires that a search be conducted within 10 days after the warrant is issued. The federal government and nearly half of the states also have laws limiting the time of day during which search warrants may be executed. In those jurisdictions, searches may be conducted only during day1 time hours unless there are special circumstances. 5 Generally, before law enforcement officers may enter a place to conduct a search, they must first announce that they are law enforcement officers, that 6 they possess a warrant, and that they are there to execute it. The major exceptions to this requirement 8 are situations in which it is likely that the evidence would be destroyed immediately on notification or in which notification would pose a threat to officers. T Judges in many jurisdictions also are authorized to issue “no-knock” warrantsS in some circumstances such as drug busts. However, if officers are refused entry after identifying themselves, they may then use force to gain entry, but only after they have given the occupant time to respond. In short, they cannot legally yell “police officers” and immediately kick down the door. The Supreme Court has held that under ordinary circumstances they must wait at least 15 to 20 seconds (see United States v. Banks, 2003). Finally, if in the course of conducting a legal search, law enforcement officers discover contraband (an illegal substance or object) or evidence of a crime not covered by the warrant, they may seize that contraband or evidence under the plainview exception (discussed later) without getting a new warrant specifically covering it. boh11536_ch04_094-134.indd Page 107 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Figure 4.2 Affidavit and Application for Search Warrant in the Duke University Lacrosse Rape Case STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY § § STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY IN THE GENERAL COURT OF § IN THE GENERAL COURT OF § DlSTRICT COURT DlVISION DlSTRICT COURT DlVISION ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT Description of items to be seized - Continued IN THE MATTER OF: 610 N. Buchnan Blvd. Durham, NC 27701 12. Any electronic data processing and storage devices, computers and computer systems including central processing units; internal and peripheral storage devices such as fixed disks, external hard disks, floppy disk drives and diskettes, tape drives and tapes, cartridges, optical storage devices or other memory storage devices; peripheral input/output devices such as keyboards, printers, video display-monitors, optical reader/write devices, and related communications devices such as modems; together with system documentation, operating logs and documentation, software and instruction manuals Any e-mail correspondence, other electronic communications, memos, or documents of any type referring to First Degree Rape, Robbery, Kidnapping, First Degree Sexual Offense, Hate Crimes, Felony Strangulation, and Assault on a female. I, Investigator Benjamin Himan being a duly sworn officer, request that the COURT issue a warrant to search the place, person, vehicles, and any other items or places described in this application; and to find and seize the property described in this application. Description of items to be seized. 1. Any DNA evidence to include hair, semen, blood, salvia related to the suspects and victim 2. Blue bathroom carpet/rug 3. Any clothing related to the suspects and the victim 4. Any documentation identifying the suspects 5. Collection of latent prints identifying persons in the residence 6. Documentation of ownership of residence 7. Property belonging to include but not limited to a purse, wallet, make-up and make-up bag, cellular camera telephone, and a shoe 8. Still photographs, video footage and digital recordings of the party 9. Any cameras or video devices which could contain photographs or footage of the party on 03/13/2006 to 3/14/2006 10. Artificial Fingernails with a reddish color polish 11. United States Currency totaling $400.00 or portions of said currency (all twenty dollar bills) ––––––––––––––––––––– MAGISTRATE/JUDGE ––––––––––––––––––––– APPLICANT 3.16.06 DATE ________________ STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY 3.16.06 DATE ________________ § IN THE GENERAL COURT OF § DlSTRICT COURT DlVISION ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT Description of Vehicle to be Searched 1996 Green Honda Accord, Virginia License Plate Number JBM-5999 VIN: 1HGCD5654TA199992 And / or Any vehicle on the curtilage Not applicable - - L I D D E L L , T I F F A N Y Description of Person to be Searched IN THE MATTER OF: 610 N. Buchanan, Durham N.C. Probable Cause Affidavit The affiant swears to the following facts to establish probable cause for the issuance of a search warrant. I, Inv. B. W. Himan, am a sworn law enforcement officer and have been since 2003. I have been employed as a sworn police officer with the Durham City Police Department since 2003. I am currently an investigator with the Durham City Police Department's Criminal Investigation Division Violent Crimes Unit. The Criminal Investigations Division has the responsibility of follow-up investigations of the crimes committed by adults and juveniles involving crimes against person and property. The primary objectives of this Division are to provide both investigative and general support to the other Divisions of the Durham Police Department in the accomplishment of establishing departmental goals and objectives. The Violent Crimes and Property Crimes Units are a part of the District 2 Criminal Investigations Division, dedicated to investigation matters of the people within the city of Durham, NC concerning persons. I have been assigned to the Criminal Investigations Division as an Investigator in District 2. I have been involved in numerous investigations to include domestic violence assaults, robberies, sexual assaults, and homicide investigations. I have received specialized training in the area of criminal investigation over my years with the Durham City Police Department. I have attended the following classes related to Law enforcement: Interview and Interrogation, Police Law Institute, Field Training Officers School, Street Drug Enforcement for Patrol Officers, and Child Death Investigation. These classes are in addition to hundreds of hours of In-Service Training with the Durham Police. 1 5 6 8 T S Description of Crimes First Degree Forcible Rape (N.C.G.S. 14-27.3), First Degree Kidnapping (N.C.G.S.14-39), First Degree Forcible Sexual Offense (N.C.G.S.14-27.4), Common Law Robbery (N.C.G.S., 14-87.1), Felonious Strangulation (N.C.G.S. 14-32 4(b)) Description of Premises to be Searched The residence to be searched is located at 610 North Buchanan Blvd. in Durham, North Carolina. From the Durham Police District 2 Substation located at 1058 W. Club Blvd, officers will turn left traveling south on Guess Rd which turns into North Buchanan. The residence is on the east side of the street just after W. Markham. The premise to be'searched is a one story single family dwelling white in color with black shutters. The shutters are only on the front and right side of the home if looking at the residence from the street. The front door faces west towards the street. There is a green motor vehicle parked in the garage on the East side of the dwelling. The numbers 610 are black and are on the front door of the residence. There are two brick chimney protruding from the roof of the dwelling. A chain link fence runs along the East side of the dwelling. ––––––––––––––––––––– MAGISTRATE/JUDGE ––––––––––––––––––––– APPLICANT 3.16.06 DATE ________________ 3.16.06 DATE ________________ STATE OF NORTH CAROLINA JUSTICE DURHAM COUNTY § IN THE GENERAL COURT OF § DlSTRICT COURT DlVISION ATTACHMENT FOR APPLICATION FOR SEARCH WARRANT On 3/14/06 at 1:22am Durham City Police Officers were called to the Kroger on Hillsborough Road. The victim reported to the officers that she had been sexually assaulted at 610 North Buchanan Blvd. The investigation revealed that the victim and another female had an appointment to dance at 610 North Buchanan Blvd. The victim arrived at the residence and joined the other female dancer. The victim reported that they began to perform their dance in master bedroom area. After a few minutes, the males watching them started to get excited and aggressive. The victim and her fellow dancer decided to leave because they were concerned for their safety. As the two women got into a vehicle, they were approached by one of the suspects. He appoligized and requested they go back inside and continue to dance. Shortly after going back into the dwelling the two women were separated. Two males, Adam and Matt pulled her into the bathroom. Someone closed the door to the bathroom where she was, and said "sweet heart you can't leave." The victim stated she tried to leave and the three males (Adam, Bret, and Matt) force fully held her legs and arms and sexually assaulted her anally, vaginally and orally. The victim stated she was hit, kicked and strangled during the assault and she attempted to defend herself, but was overpowered. The victim reported she was sexually assaulted for an approximate 30 minute time period by the three males. Police went to the residence in the early morning hours shortly after the victim reported the event. The Green Honda was parked at the residence at that time. Officers documented that vehicle was present, and no one would come to the door. This Affiant is requesting the COURT to issue a warrant to search the residence, outbuildings, trash, and any vehicles on the curtilage of 610 North Buchanan Blvd Durham, North Carolina. In order to search and seize any evidence described under "Evidence to be Seized" from inside the residence of 610 North Buchanan Blvd. Durham, North Carolina. ––––––––––––––––––––– MAGISTRATE/JUDGE ––––––––––––––––––––– APPLICANT ––––––––––––––––––––– MAGISTRATE/JUDGE ––––––––––––––––––––– APPLICANT 3.16.06 DATE ________________ 3.16.06 DATE ________________ 3.16.06 DATE ________________ 3.16.06 DATE ________________ 107 boh11536_ch04_094-134.indd Page 108 07/06/11 4:51 AM user-f494 108 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice Arrests with a Warrant Most arrests are made without a warrant. Generally, an arrest warrant is legally required when law enforcement officers want to enter private premises to make an arrest unless there is consent or exigent circumstances (discussed later). An arrest warrant is issued only if substantial and trustworthy evidence supports these two conclusions: (1) a violation of the law has been committed and (2) the person to be arrested committed the violation. Searches and Seizures Without a Warrant In guaranteeing freedom from illegal searches and seizures, the Fourth Amendment protects a person’s privacy. Under most circumstances, the amendment requires a warrant signed by a judge to authorize a search for and seizure of evidence of criminal L activity. However, Supreme Court interpretations of the Fourth Amendment have permitted warrantless I and seizures in some circumstances. A person is searches generally D protected from searches and seizures without a warrant in places, such as home or office, where he or she has D a legitimate right to privacy. That same protection, however, does not extend to all places where a person has a E right to be. For example, the Supreme Court has legitimate permitted L the stopping and searching of automobiles under certain circumstances and with probable cause. Several Samar Kaukab sued the Illinois National Guard and O’Hare L concerning search and seizure without a warrant doctrines International Airport security officers for strip-searching her at have, developed over time. the Chicago airport before a flight simply because she was Before 1969, when law enforcement officers arrested a wearing a hijab—a Muslim head scarf. Were the security officers suspect, they could legally search, without a warrant, the justified in conducting the strip-search? Why or why not? entire premises surrounding the arrest. That kind of T search is called a search incident to arrest, and like a search with a warrant, it Irequired probable cause. Evidence obtained through a search incident to arrest was admissible as long as the arrest was legal. E-mail and Privacy In 1969, in the case of F Chimel v. California, the Supreme Court limited the E-mail does not have the same privacy proscope of searches incidentFto an arrest. The Court restricted the physical area tections as does “regular mail.” Depending in which officers could conduct a search to the area within the suspect’s immeA on where the e-mail is sent to and sent diate control. The Court interpreted the area within the suspect’s immediate from, privacy rights vary greatly. However, control as an area near enough to the suspect to enable him or her to obtain a N under no circumstances can e-mail mesweapon or destroy evidence. The Court also ruled that it is permissible for sages ever be considered confidential. officers, incident to an arrest, Y to protect themselves, to prevent a suspect’s Both government employees (federal, escape by searching the suspect for weapons, and to preserve evidence within state, and local) and employees in the prithe suspect’s grabbing area. vate sector have few, if any, privacy rights The Supreme Court has1continued to refine the scope of warrantless searches in the e-mail messages they send or reand seizures incident to an arrest. For example, in 1981, in New York v. Belton, ceive. Employers are free to examine all the Court ruled that after 5 police have made a lawful arrest of the occupant of electronic communications stored on their an automobile, they may, 6 incident to an arrest, search the automobile’s entire systems. The e-mail messages of governpassenger compartment and the contents of any opened or closed containers ment employees may also be available to found in the compartment. 8The police had long been able to legally search the the public through a freedom of informaautomobile’s trunk, providing there was probable cause (see Carroll v. United T v. Ross (1982) the Court held that when police tion request. In addition, commercial serStates, 1925). In United States vice providers (such as America Online) are “have probable cause to search S an entire vehicle, they may conduct a warrantpermitted to disclose messages to law less search of every part of the vehicle [including the trunk] and its contents, enforcement officials when they “inadverincluding all containers and packages, that may conceal the object of the tently” come across messages containing search.” Then, in 1991, in the case of California v. Acevedo, the Court ruled references to illegal activity. Finally, rethat the police, “in a search extending only to a container within an automogardless of the setting (work or home), bile, may search the container without a warrant where they have probable e-mail can be subpoenaed, discovered, and cause to believe that it holds contraband or evidence.” The Court will also intercepted under existing wiretap laws. allow the police, with probable cause, to search an automobile passenger’s belongings, if he or she is capable of concealing the object of the search (see Source: From University of Buffalo, “E-mail and Wyoming v. Houghton, 1999). However, in 2009, in Arizona v. Gant, the Court Privacy Rights,” Erik C. Garcia, www.wings qualified its earlier decision in New York v. Belton. The Court held that police FYI boh11536_ch04_094-134.indd Page 109 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. In this case, Gant was arrested for driving with a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in his jacket pocket. He was convicted of drug offenses. The Court noted that Gant could not have accessed his car at the time of the search, and that he was arrested for driving with a suspended license— an offense for which police could not reasonably expect to find evidence in Gant’s car. In 2008, in Brendlin v. California, the Court ruled that when police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. In this case, Brendlin, a parole violator and passenger in a car that was stopped for a routine registration check, was recognized by one of the police officers, arrested, and searched. The driver and car were searched asLwell. The police found, among other things, methamphetamine paraphernalia. Brendlin was charged I with possession and manufacture of the drug. He moved to suppress the evidence, arguing that the officers had neither probable D cause nor reasonable suspicion to make the traffic stop, which was an unconstitutional seizure of his person. The Court agreed with Brendlin and remanded D the case for further proceedings not inconsistent with its opinion. E Other Supreme Court decisions have established principles governing when private areas may be searched incident to an arrest.LIn 1968, for instance, in the case of Harris v. United States, the Court established the plain-view doctrine. L Under this doctrine, the police may seize an item—evidence or contraband— without a warrant if they are lawfully in a position ,to view the item and if it is immediately apparent that the item is evidence or contraband. In 1990, the Court clarified its ruling in Harris by adding that the discovery of the item in plain view need not be “inadvertent.” That is, the plain-view doctrine applies T even when the police expect in advance to find the item in plain view (Horton v. California). Also, in 1990, in the case of Maryland v.IBuie, the Court addressed the issue of protective sweeps. The Court held that when a warrantless arrest F suspicion, may make takes place in a suspect’s home, officers, with reasonable only a “cursory visual inspection” of areas that couldFharbor an accomplice or a person posing danger to them. A may be justified under Even a warrantless search not incident to an arrest the Supreme Court’s exigent circumstances doctrine. It permits police to make N warrantless searches in exigent, or emergency, situations. Such situations could include a need to prevent the imminent destruction Y of evidence, a need to prevent harm to individuals, or the hot pursuit of suspects. Frequently, law enforcement officers are not hampered by the warrant requirement because suspects often consent to a search. 1 In other words, law enforcement officers who do not have enough evidence to obtain a search war5 and trouble to obtain rant, or who either cannot or do not want to take the time one, may simply ask a suspect whether they may conduct a search. If the sus6 pect consents voluntarily, the search can be made legally. Law enforcement officers call this strategy “knock and talk.” In 1973, in 8 the case of Schenckloth v. Bustamonte, the Supreme Court upheld the legality of consent searches. The T that they have a right Court also ruled that officers do not have to tell suspects to withhold consent unless they ask. S It is not surprising that consent searches have become the most common type of searches performed by law enforcement officers. They are used frequently in traffic stops and drug interdiction efforts at airports and bus terminals. In the 1980s, as a new tool in the war on drugs, several police departments adopted programs in which officers boarded buses and asked passengers to consent to searches. The practice was challenged in a 1985 Florida case in which a bus passenger had consented to having his luggage searched. When the police found cocaine, the passenger was arrested and subsequently convicted. The Florida Supreme Court ruled that the search was unconstitutional. In 1991, the U.S. Supreme Court reversed the Florida Supreme Court (in Florida v. Bostick) and 109 boh11536_ch04_094-134.indd Page 110 07/06/11 4:51 AM user-f494 110 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice held that the search was not unconstitutional and that law enforcement officers may make such a search without a warrant or suspicion of a crime—as long as the passenger feels free to refuse the search. Critics argue that, in most cases, consent searches cannot be truly voluntary, even when permission is granted, because most people are intimidated by the police and would have a hard time telling them no. Moreover, most people probably do not know that they may refuse a warrantless search except under the conditions described earlier. In the case of Georgia v. Randolph (2006), the U.S. Supreme Court restricted consent searches of a home. In this case Randolph’s estranged wife, concerned about his cocaine use, called the police and, when they arrived, told them they could find cocaine in their bedroom. The police asked her if they could conduct a search, and she consented. Randolph, a lawyer, who was present at the time, objected to the search, but the police ignored him, entered the house, and found cocaine in the bedroom. Randolph was arrested and subsequently convicted of drug possession. L On appeal, the U.S. Supreme Court, citing the Fourth Amendment’s central value of “respect for the privacy of the home,” I ruled that warrantless searches of a home, even when a co-habitant consented to the search, are prohibited if the other co-habitant is physically present and D objects to the search. As a result of the decision, the incriminating evidence was suppressed (that is, not D admitted at the retrial). However, the consent of one co-occupant in the absence of another is generally considered sufficient to permit a home search by E the police (see United States v. Matlock, 1974). In a new twist on consent L searches, Boston police instituted an anti-crime program called “Safe Homes” in which they ask parents or legal guardians in L high-crime areas for permission to conduct a warrantless search of their children’s bedrooms for guns. The police believe that parents who fear their children , will become involved in gun violence will let police into their homes to search for guns. If parents refuse, the police will leave. Such searches will not be conducted in the homes of teens suspected in shootings or homicides so prosT ecutions are not jeopardized. If officers find drugs in the warrantless search, it will be up to them to decide to arrest; however, according to police brass, I modest amounts of drugs such as marijuana will simply be confiscated. Civil libertarians are concerned.F11 F Arrests Without a Warrant A Officers may not enter a private home to make a warrantless arrest unless there is consent or the offense is a serious one and there are exigent circumstances,N such as the likely destruction of evidence or the hot pursuit of a felony suspect. This is the same exigent circumstances doctrine that Y and seizures. applies to warrantless searches A suspect who is arrested without a warrant and remains confined is entitled to have a judge determine whether there was probable cause for the arrest. 1 such a determination within 48 hours of arrest. Ordinarily, judges must make The purpose of this proceeding is to ensure that the suspect’s continuing cus5 tody is based on a judicial determination of probable cause and not merely on the police officer’s judgment 6 that probable cause supported an arrest. 8 T nor arrest warrants can be issued legally unless law Amendment, neither search enforcement officers convince S a judge or a magistrate that there is probable cause Standards of Proof As mentioned previously and as specified in the Fourth mere suspicion The standard of proof with the least certainty; a “gut feeling.” With mere suspicion, a law enforcement officer cannot legally even stop a suspect. to believe either that the specific items to be searched for are related to criminal activity and the items will be found in the place to be searched, or that a violation of the law has been committed and the person to be arrested committed the violation. Probable cause is one among a number of standards of proof for various criminal justice activities. The amount of proof necessary depends on the activity in question. Figure 4.3 shows various standards of proof, along a continuum of certainty, and the criminal justice activities that correspond to them. Toward one end of the continuum is the standard of proof with the least certainty: mere suspicion. Mere suspicion is equivalent to a “gut feeling.” In other words, a law enforcement officer may have a feeling that something is boh11536_ch04_094-134.indd Page 111 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law 111 Figure 4.3 Standards of Proof and Criminal Justice Activities Mere suspicion Reasonable suspicion Probable cause Preponderance of evidence None Stop and frisk Search or arrest Determine “good faith” exception to exclusionary rule; show waiver of right to counsel “knowingly and intelligently” Clear and convincing evidence Beyond a reasonable doubt Make successful claim of insanity in federal courts Determine guilt in a criminal trial L I D wrong—an uncanny knack that some experienced D law enforcement officers possess—but be unable to state exactly what it is. With only mere suspicion, E law enforcement officers cannot legally even stop a suspect. A standard of proof with greater certainty is reasonable suspicion. ReasonL able suspicion is more than a gut feeling. It includes the ability to articulate L reasons for the suspicion. For example, if a law enforcement officer observes a person in front of a bank wearing a heavy trench coat on a hot summer day, , the officer might have a reasonable suspicion that something is wrong. The officer could state that idling in front of a bank while wearing a heavy trench coat on a hot summer day is suspect behavior. Until recently, an anonymous T tip, as long as there were other reliable indicators, could be the basis for reasonable suspicion. However, in Florida v. J.L. (2000),Ithe Supreme Court ruled that an uncorroborated anonymous tip was unconstitutional.12 But the Court, F from the police when in Illinois v. Wardlow (2000), confirmed that running they enter a high-crime area is reasonably suspiciousFbehavior.13 With reasonable suspicion, a law enforcement officer is legally permitted to stop and frisk A conducting a search a suspect (Terry v. Ohio, 1968). Frisking a suspect means for weapons by patting the outside of a suspect’s clothing, feeling for hard N objects that might be weapons. Only if an officer feels something that may be a weapon may he or she search inside a pocket orYan article of clothing. If evidence of a crime is discovered, the officer is permitted to make an arrest. The standard of proof needed to conduct a search or to make an arrest is probable cause. The conventional definition of probable 1 cause is the amount of proof necessary for a reasonably intelligent person to believe that a crime has been committed or that items connected with 5criminal activity can be found in a particular place. Although its meaning is not entirely clear—what 6 is “reasonably intelligent”?—probable cause has a greater degree of certainty than reasonable suspicion. For probable cause, law enforcement officers must 8 have some tangible evidence that a crime has been committed, but that evidence does not have to be admissible at trial. Such T evidence might include a tip from a reliable informant or the pungent aroma of Smarijuana in the air. As noted in Chapter 1, probable cause is also the standard of proof used in initial appearances and preliminary hearings. The line between probable cause and reasonable suspicion, or even mere suspicion, is a fine one and a matter of interpretation. In practice, there are many gray areas. Consequently, criminal courts and the judicial officers who are authorized to approve search warrants have been given the responsibility of determining whether a standard of proof has been met in a particular situation. As noted, search warrants, for example, must generally be approved by a judicial officer before they can be executed. The way courts and judicial officers determine whether a standard of proof has been met will be discussed Absolute certainty None reasonable suspicion A standard of proof that is more than a gut feeling. It includes the ability to articulate reasons for the suspicion. With reasonable suspicion, a law enforcement officer is legally permitted to stop and frisk a suspect. frisking Conducting a search for weap- ons by patting the outside of a suspect’s clothing, feeling for hard objects that might be weapons. probable cause The amount of proof necessary for a reasonably intelligent person to believe that a crime has been committed or that items connected with criminal activity can be found in a particular place. It is the standard of proof needed to conduct a search or to make an arrest. boh11536_ch04_094-134.indd Page 112 10/06/11 8:01 PM user-f494 112 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice preponderance of evidence Evidence that more likely than not outweighs the opposing evidence, or sufficient evidence to overcome doubt or speculation. clear and convincing evidence The standard of proof required in some civil cases and, in federal courts, the standard of proof necessary for a defendant to make a successful claim of insanity. beyond a reasonable doubt The standard of proof necessary to find a defendant guilty in a criminal trial. in detail in Chapter 8. Here we simply observe that, for much of the public, one of the frustrating aspects of criminal justice is that offenders who are factually guilty of their crimes sometimes escape punishment because a judicial officer did not have probable cause to issue a warrant, or a police officer did not have probable cause to make an arrest or have reasonable suspicion to stop and frisk the suspect. The next standard of proof along the continuum of legal certainty is preponderance of evidence. Preponderance of evidence is evidence that more likely than not outweighs the opposing evidence, or sufficient evidence to overcome doubt or speculation. It is the standard of proof necessary to find a defendant liable in a civil lawsuit. This standard is also used in determining whether the inevitable-discovery rule applies. That is, the prosecution must prove by a preponderance of the evidence that evidence actually uncovered as a result of a constitutional violation would inevitably have been discovered through lawful means, independent of the action constituting the violation. Finally, preponderance ofLevidence is the standard of proof in criminal proceedings by which the state must show that the right to counsel has been I waived “knowingly and intelligently.” Next along the continuum D of certainty is clear and convincing evidence, which is evidence indicating that the thing to be proved is highly probable or reasonably certain. It is the Dstandard of proof required in some civil cases and, in federal courts, the standard of proof necessary for a defendant to make a E successful claim of insanity. Of greater certainty still L is proof beyond a reasonable doubt, the standard of proof necessary to find a defendant guilty in a criminal trial. “Reasonable L is a relatively recent concept. It appears to have doubt” as a standard of proof been used for the first time , in the Boston Massacre trials in 1770. Until then, no standards of proof existed in English colonies, and juries only had to return “true verdicts.” Not until 1970 (in In re Winship) was reasonable doubt, as a standard of proof, made a constitutional requirement in all criminal cases, both T federal and state.14 Reasonable doubt is the amount of doubt about a defendant’s guilt that a reasonable I person might have after carefully examining all the evidence. In the case of Sandoval v. California (1994), the Court upheld the following definition ofFreasonable doubt: F A N Y It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. [Emphasis in original.] Thus, to convict a criminal defendant in a jury trial, a juror must be convinced of guilt by this standard. However, what is considered reasonable 1 varies, and reasonableness is thus a matter of interpretation. Therefore, the procedural laws in most jurisdictions require that 12 citizens all agree that a 5 defendant is guilty beyond a reasonable doubt before that defendant can be 6 activity requires absolute certainty as a stanconvicted. No criminal justice dard of proof, although standards of “beyond any doubt,” “beyond all doubt,” 8 “no doubt,” “no doubt about the guilt of the defendant,” and “moral certainty” (a concept popularTin the 17th century) have been proposed for use in capital cases.15 S exclusionary rule The rule that illegally seized evidence must be excluded from trials in federal courts. The Exclusionary Rule The exclusionary rule was created by the Supreme Court in 1914 in the case of Weeks v. United States. In Weeks, the Supreme Court held that illegally seized evidence must be excluded from trials in federal courts. In 1961, the Warren Court extended the exclusionary rule to state courts in the case of Mapp v. Ohio. The exclusionary rule originally had three primary purposes: (1) to protect individual rights from police misconduct, (2) to prevent police misconduct, and (3) to maintain judicial integrity (for citizens to have faith in the administration of justice, courts should not admit evidence that is tainted by the illegal activities of other criminal justice officials). Today, however, boh11536_ch04_094-134.indd Page 113 13/07/11 5:48 PM F-501 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law the principal purpose of the exclusionary rule is to deter the police from violating people’s Fourth Amendment rights. In practice, when suspects want to claim that incriminating evidence was obtained through an illegal search and seizure, that a confession was obtained without the required warnings or was involuntary, that an identification was made as a result of an invalid police lineup, or that evidence was in some other way illegally obtained, they attempt, through their attorneys, to show at a suppression hearing that the search and seizure, for example, violated the Fourth Amendment. If they are successful in their claims, the evidence that was obtained as a result of the illegal search and seizure will not be admitted at trial. By the late 1970s, public opinion polls showed that Americans were becoming increasingly alarmed about the problem of crime and especially about what they perceived as the practice of allowing a substantial number of criminals to escape punishment because of legal technicalities. One so-called legal technicality that received much of the public’s scorn wasLthe exclusionary rule. In 1984, responding at least in part to public opinion, the Supreme Court, under I had the practical effect Chief Justice Warren Burger, decided three cases that of weakening the exclusionary rule. D In two of the three cases, United States v. Leon and Massachusetts v. Sheppard, a good faith exception to the exclusionary rule was recognized. The Court ruled D that as long as the police act in good faith when they request a warrant, the evidence they collect may be used in court, even ifEthe warrant is illegal or defective. In the Leon case, the judge’s determinationLof probable cause turned out to be wrong. Prior to Leon, such an error by a judge would have been recognized as a violation of the Fourth Amendment,Land the evidence seized with the warrant would have been excluded at trial., The Court reasoned that it was unfair to penalize law enforcement officers who conduct searches in which incriminating evidence is found, when those officers conduct the search in good faith that they have a legal warrant. In the Sheppard case, the judge T had used the wrong form for the warrant. As in Leon, the Court reasoned that it was unfair to penalize law enforcement officers, and I the public, just because there was a flaw in the warrant, when the officers had conducted a search in F good faith and found incriminating evidence. The third case, Nix v. Williams, established an inevitable-discovery excepF tion to the exclusionary rule. The Nix case involved a murderer whom police A his victim. In Nix, the had tricked into leading them to the hidden body of Court held that evidence obtained in violation of a defendant’s rights can be N used at trial if the prosecution can show, by a preponderance of the evidence, that the information ultimately or inevitably would Y have been discovered by lawful means. The exclusionary rule was again weakened in 1995. In the case of Arizona v. Evans, the Supreme Court ruled that unlawful arrests 1 based on computer errors do not always require the exclusion of evidence seized by police. In the 5 to the exclusionary Arizona case, the Court held that a good faith exception rule could be made as long as the illegal seizure of evidence was caused by 6 the errors of court employees and not the police. In that case, a Phoenix man who had been stopped for a traffic violation was arrested 8 because a computer record showed an outstanding arrest warrant for some traffic violations. In fact, the warrant had been dropped 17 days earlier, but T the action had not been entered into the computer. After the arrest, marijuana S was seized from the man’s car, and he was arrested for illegal possession. The PATRIOT Act16 Less than 2 months after the terrorist attacks of 9/11, and with little debate or scrutiny, Congress passed the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” or the USA PATRIOT Act, for short. Among a host of provisions, the law gives broad new powers to the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and other U.S. foreign intelligence agencies to spy on American citizens. It also eliminates checks and balances on those powers such as judicial oversight, public accountability, and the ability to 113 MYTH Many criminals escape punishment because of the exclusionary rule. FAC T Very few criminals escape punishment because of the exclusionary rule. boh11536_ch04_094-134.indd Page 114 07/06/11 4:51 AM user-f494 114 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice L I Under the PATRIOT Act, activist groups such as Operation Rescue, Greenpeace, or the World Trade Organization protesters could be charged with domestic terrorism if they committed specifically defined federal terrorism Dcrimes. Do you believe those groups engage in domestic terrorism? Why or why not? D E challenge government searches L in court. For example, the law allows the FBI to search private records (financial, medical, library, student—any recorded activity) without a warrant andLprobable cause and without having to reveal to anyone what it has done (referred , to as “sneak-and-peek” searches). It is able to do this through the use of “national-security letters,” which are administrative sub- CJ Online To see the long list of federal terrorism crimes, go to Title 18, Part I, 113B, Section 2332b(g)(5) of the U.S. Code at /html/uscode18/usc_sec_18_00002332 ---b000-.html. Do you agree that all the listed crimes should be considered terrorism crimes? Why or why not? poenas. According to a recent audit by the Justice Department’s Inspector General, the FBI used the “letters” to collect more data than allowed in dozens T of cases from 2003 through 2006, and underreported to Congress how many “letters” were requested by more I than 4,600. The Inspector General blamed agent error and shoddy record keeping for the problems, while FBI Director Mueller attributed the problem inFpart to banks, telecommunication companies, and other private businesses providing the FBI more personal client data than was F requested. Also, under the act, the FBI no longer needs probable cause to conduct wiretaps of criminalA suspects when “a significant purpose” is gathering intelligence. N The act also creates the new crime of “domestic terrorism.” Under the act, members of controversialYactivist groups, such as Operation Rescue, Greenpeace, or the World Trade Organization protesters, could be charged with domestic terrorism if they committed specifically defined federal terrorism crimes. Even providing lodging 1 or aid to such “terrorists” could initiate surveillance or prosecution. Another provision of the new law allows the U.S. Attor5 ney General to detain noncitizens in the United States after certifying that there are “reasonable grounds to believe” that the noncitizen endangers national 6 security. If a foreign country will not accept such noncitizens who are to be deported, they can be detained 8 indefinitely without trial. Ironically, as critics point out, most of the PATRIOT Act’s changes to surveilT lance laws were part of a long-standing law enforcement wish list that Congress had repeatedly rejected. The events of 9/11 changed that. Critics also argue S that the law was hurriedly passed without determining whether problems with existing surveillance laws contributed to the terrorist attacks and whether the new law would help prevent further attacks. Many of the law’s provisions do not even deal with terrorism. Particularly troublesome to many critics is the law’s elimination of the checks and balances placed on the government’s surveillance powers. Most of those checks and balances were created after it was learned in the 1970s that the government had misused those powers. Among other things, the FBI and the CIA had illegally spied on more than half a million U.S. citizens during the McCarthy era and later. Perhaps the most notorious example of this clandestine activity was the illegal surveillance of Martin boh11536_ch04_094-134.indd Page 115 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Luther King Jr. during the 1960s. Critics took some comfort that several of the surveillance provisions of the PATRIOT Act were scheduled to expire on December 31, 2005. However, on March 9, 2006, President Bush signed into law the USA PATRIOT Act Improvement and Reauthorization Act of 2005 (after Congress had temporarily extended the original Act). The legislation made permanent 14 of the 16 USA PATRIOT Act provisions set to expire and placed four-year sunsets on the other two—the authority to conduct “roving” surveillance under the Foreign Intelligence Surveillance Act (FISA) and the authority to request production of business records under FISA. The new act also purportedly added dozens of additional safeguards to protect Americans’ privacy and civil liberties. Critics contend the safeguards are inadequate. Among the provisions of the new legislation are the following: • Authorized the Attorney General to reorganize the Department of Justice by placing the Department’s primary national security L elements under the leadership of a new Assistant Attorney General for National Security. The new Assistant Attorney General will serve as the IDepartment’s primary liaison to the new Director of National Intelligence, D and the new Division will gather expertise from across the Department to create a focal point for providing advice on the numerous legal and policy D issues raised by the Department’s national security missions. E from terrorists • Provided tools to protect U.S. waterways and seaports and thieves, including new or enhanced penalties L for crimes such as smuggling goods into or out of the United States or bribing a public L official to affect port security with the intent to commit international or domestic terrorism. Would-be terrorists will now, face a U.S. Coast Guard empowered with new law enforcement tools for use at sea, including penalties for refusal to stop when ordered to do so and for transporting an explosive, biological agent, chemical weapon, or radioactive or nuclear T materials knowing that the item is intended to be used to commit a terrorist act. I • Enhanced penalties for terrorism financing and closed a loophole in terrorist financing through hawalas, informal money F transfer networks, rather than traditional financial institutions. F • The Combat Methamphetamine Act made certain drugs used in manufacA harder to obtain turing “meth” “scheduled listed chemical products” in unlimited quantities and easier for law enforcement to track. It also N enhanced penalties for the manufacture, smuggling, and selling of “meth.” • Eliminated confusion about the appropriate deathY penalty procedures for certain cases under the Controlled Substances Act and expanded on the authorities governing provision of counsel for death penalty–eligible defendants who are unable to afford counsel. 1 • Provided clear intent standards and tough penalties for terrorist attacks 5 other mass transportaand other violence targeted at U.S. rail systems and tion systems regardless of whether they operate on land, on water, or 6 through the air. • Continued to allow investigators to use so-called 8 section 215 orders—court orders requiring production of business records or any “tangible things”— T in all phases of national security investigations. Documents considered more sensitive, such as library, bookstore, medical, tax return, and gun S sale records, require that applications to the FISA court for section 215 orders be signed by either the Director or the Deputy Director of the FBI. Recipients of section 215 orders may seek judicial review and disclose receipt of the order to attorneys to obtain legal advice or assistance (something they were prohibited from doing under the original PATRIOT Act). Nevertheless, any employee who discloses a demand for such records, other than to the aforesaid attorney, can be imprisoned for 5 years under the new law. • Amended the FISA court’s authority to issue an electronic surveillance order that attaches to a particular target rather than a particular phone or 115 boh11536_ch04_094-134.indd Page 116 07/06/11 4:51 AM user-f494 116 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice FYI FISA Court Since its creation in 1978, a secretive federal court known as the Foreign Intelligence Surveillance Act Court, or FISA court, has approved thousands of Justice Department requests to conduct secret searches and surveillance of people in the United States who are suspected of having links to foreign agents or powers, often involving terrorism and espionage. The legislation that created the now 11-member FISA court also established a 3-member Foreign Intelligence Surveillance Court of Review, which has never been used because the FISA court almost always grants the government’s requests, and suspects are never notified that they are the target of a search or surveillance. The U.S. Supreme Court has the final authority to review cases from the Court of Review. The Supreme Court’s chief justice appoints all members of both courts. The 11 FISA court judges are selected from among U.S. district court judges, and the three judges of the Court of Review are selected from the U.S. district courts or courts of appeals. Judges serve for a maximum of 7 years. Source: Federal Judicial Center, “Foreign Intelligence Surveillance Court,” /public/home.nsf/hisc. computer by increasing the level of detail needed to obtain an order and, in most cases, requiring the government to provide notice to the court within 10 days that surveillance had been directed at a new facility or place. • To avoid adverse consequences such as endangering an individual’s life or physical safety, allowed investigators to obtain court permission to delay giving notice that a search warrant had been executed for a presumptive limit of 30 days and extensions of 90 days. • Limited the PATRIOT Act’s broad definition of domestic terrorism to specific federal terrorism crimes, instead of any acts “dangerous to human life” to “influence the policy of a government by intimidation or coercion.”17 In 2007 and 2008, Congress enacted the “Amendment to the Foreign Intelligence Surveillance Act of 1978,” which is referred to as the “Protect America Act of 2007,” and the “Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008,” which is also called the “FISA Amendments Act of 2008.”18 The 2008 legislation, which L President Bush signed into law July 10, 2008, reauthorizes many of the provisions in the 2007 legislation. The 2007 Act, I by President Bush on August 5, 2007, clarifies the which was signed into law use of electronic surveillance D of non-U.S. persons outside the United States. Under the new laws, a court order is no longer required to collect foreign intelligence information against D such a target located overseas. That authority now rests solely with the Attorney General and the Director of National IntelE an obstacle from U.S. intelligence agencies to ligence. The law thus removes obtain real-time information L about the intent of enemies located outside the United States. L U.S. intelligence agencies to collect foreign-toSpecifically, the law allows foreign phone calls and e-mails as well as all international communications , where one party is in the United States, so long as no one particular person in the United States is being targeted. It also requires, under penalty of law, third parties such as telecommunication companies and electronic communicaT tion service providers to provide information, facilities, and assistance necessary to conduct the surveillance. Finally, it protects those third parties from I past or future lawsuits arising from the assistance they provide the government. Several companies, such F as AT&T and Verizon, had been sued for allegedly violating their customers’ F privacy. The law does empower the FISA Court to review the efforts of U.S. intelligence agencies to gatherAforeign intelligence, although, according to critics, it will have no information about how extensive the breach of American priN vacy is, or the authority to remedy it. Critics contend that the law allowed the Bush Administration, especially Y the National Security Agency (NSA), to resume a once-secret warrantless wiretapping program it created after 9/11 but was brought under court oversight in January 2007. The ACLU calls the “Protect America Act of 2007” the1“Police America Act” and has filed a lawsuit challenging the “FISA Amendments Act of 2008,” claiming the new law violates Americans’ rights of free5 speech and privacy under the First and Fourth Amendments. 6 In 2009, legislation was introduced in both the Senate and the House aimed to revise and reform the PATRIOT Act and the FISA Court. Among the provi8 sions of the legislation were the reform of the National Security Letter process, revision of the guidelines T for business records orders, elimination of the catchall provision for “sneak-and-peek” searches, the addition of new safeguards for S FISA roving wiretaps, and the repeal of retroactive immunity for telecommunications companies. The legislation was not enacted. In January 2010, the Department of Justice Office of Inspector General released a report critical of the FBI’s use of “exigent letters” and other means to obtain telephone records from three unnamed phone companies. The 300page report concluded that many of the FBI’s practices “violated FBI guidelines, Department policy,” and the Electronic Communications Privacy Act. The report also found that “the FBI sought and acquired reporters’ telephone toll billing records and calling activity information” through improper means. The report concluded that “the FBI’s initial attempts at corrective action were boh11536_ch04_094-134.indd Page 117 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law L I D aerial observation withPolice helicopter conducting aerial surveillance. Do you believe visual out a warrant should be legally allowed? Why or why not? D E seriously deficient, ill-conceived, and poorly executed.” L Several recommendations for improvement were made. L voted to extend the Finally, in March 2010, after months of debate, Congress three expiring provisions of the USA PATRIOT Act for , one year with no alteration. The provisions, concerning business records, roving wiretaps, and “lone wolf” investigations (intelligence investigations of lone terrorists not connected to a foreign nation or organization), give federal law enforcement agencies broad T powers to gather information on Americans. Both the Senate and House Judiciary committees proposed bills to renew these provisions with reforms that I would establish greater oversight, but neither bill went to a floor vote. Clearly, the catastrophic events of 9/11 have had aFdramatic effect on American law enforcement and administration of justice. F However, whether the changes that have been implemented and proposed in the wake of those events, A such as the PATRIOT Act, the USA PATRIOT Act Improvement and Reauthorization Act of 2005, the Protect America Act of 2007, and the FISA AmendN ments Act of 2008, are desirable is a fair subject of debate in a free and democratic country. Y Of all the due process guarantees in the Bill of Rights, those in the Fourth Amendment are the ones likely to require the most interpretation by the Supreme Court in the future. With advances in the technology of surveillance, 1 the Court will have to determine the legality of increasingly more intrusive 5 fiction movie was a ways of gathering evidence. The star of a 1983 science police helicopter named Blue Thunder. The helicopter was able to hover 6 silently outside apartment buildings, record what was being said inside the apartments, and take pictures of what was being done. 8 Although the movie was fictional, it will probably not be long before law enforcement has such equipment—if it does not have at least some of thatTequipment already. Will evidence obtained by means of the futuristic surveillance S technology of Blue Thunder violate the Fourth Amendment prohibition against unreasonable searches and seizures? The Supreme Court likely provided an answer to that question in Kyllo v. United States (2001). Danny Kyllo was convicted on a federal drug charge after federal agents, suspicious that Kyllo was growing marijuana in his home, used a thermal-imaging device to determine whether the heat coming from his house was consistent with the high-intensity lamps typically used in growing marijuana indoors. Based partly on the thermal imaging, a warrant was issued to search Kyllo’s home, where agents found more than 100 marijuana plants growing. The Supreme Court, in a 5–4 ruling, held that the use of the thermal-imaging device 117 boh11536_ch04_094-134.indd Page 118 07/06/11 4:51 AM user-f494 118 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice before the warrant was issued was an impermissible search of Kyllo’s home, violating the Fourth Amendment’s prohibition of unreasonable searches and seizures. According to the Court, law enforcement agents must first obtain a search warrant before using high-tech devices to gather information from inside a home. At least for now, then, the use of futurist technology in the surveillance of a home, without a warrant, is legally prohibited. The use of a helicopter for visual aerial observation, however, probably is not (see Florida v. Riley, 1989). THE FIFTH AMENDMENT The Fifth Amendment reads as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. double jeopardy The trying of a defendant a second time for the same offense when jeopardy attaches in the first trial and a mistrial was not declared. self-incrimination Being a witness against oneself. If forced, it is a violation of the Fifth Amendment. confession An admission by a person accused of a crime that he or she committed the offense charged. doctrine of fundamental fairness The rule that makes confessions inadmissible in criminal trials if they were obtained by means of either psychological manipulation or “third-degree” methods. L I D D E and Protection Against Double Jeopardy The Right to Grand Jury Indictment Fifth Amendment right toLa grand jury indictment in felony cases, to be described in detail in Chapter 8, is one of the two Bill of Rights guarantees that has L states (see Hurtado v. California, 1884). However, not yet been extended to the the Fifth Amendment protection against double jeopardy has been (see Benton , v. Maryland, 1969). The protection provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” When most people think of double jeopardy, they probably think of the T classic case in which a defendant cannot be retried for the same crime or a related crime after he or she has been acquitted or convicted by a jury. HowI ever, the protection against double jeopardy can apply even without an acquittal or conviction. F Technically, it does not apply until jeopardy has attached. If a trial ends before jeopardy has attached, the prosecution has the F right to retry the defendant for the same charge in a new trial. But, when does jeopardy attach? In A jury trials, jeopardy attaches when the entire jury has been selected and sworn in. In a bench trial (a trial before a judge withN when the first witness has been sworn in. In out a jury), jeopardy attaches cases that are resolved through a guilty plea, jeopardy attaches when the Y court unconditionally accepts the defendant’s plea. Even after jeopardy has attached, however, the prosecution is generally not barred from retrying a defendant when a mistrial has been declared or when a defendant appeals 1 and is granted a new trial. The theoretical rationale 5 behind the protection against double jeopardy is that the state should have one and only one chance to convict a defendant 6 charged with a crime. Otherwise, the state could endlessly harass its citizens, as sometimes happens in 8 countries without this protection. T Self-Incrimination Arguably, the most important Protection Against Compelled procedural safeguard in theSFifth Amendment is the protection against compelled self-incrimination. The protection guarantees that in criminal cases, suspects or defendants cannot be forced to be witnesses against themselves. The protection is based on the belief that confessions may not be truthful if they are not made voluntarily. It also expresses an intolerance for certain methods used to extract confessions, even if the confessions ultimately prove to be reliable. A confession is an admission by a person accused of a crime that he or she committed the offense as charged. According to the Supreme Court’s doctrine of fundamental fairness, confessions are inadmissible in criminal trials if they were obtained by means of either psychological manipulation or “third-degree” methods—for example, beatings, subjection to unreasonably long periods of questioning, or other physical tactics. boh11536_ch04_094-134.indd Page 119 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Although the Fifth Amendment protection against compelled self-incrimination has long been observed in federal trials, it was not until the 1960s in the case of Malloy v. Hogan (1964) that the Fifth Amendment protection against compelled self-incrimination was extended to trials in state courts. In Miranda v. Arizona (1966), the Court broadened the protection against compelled selfincrimination to cover nearly all custodial police interrogations. (Custodial police interrogations essentially mean questionings that take place after an arrest or the functional equivalent of an arrest; they may or may not take place at the police station.) In Miranda, the Court added that confessions obtained without suspects being notified of their specific rights could not be admitted as evidence. Perhaps even more important, it established specific procedural safeguards that had to be followed to avoid violation of the protection against compelled self-incrimination. The Court said: Procedural safeguards must be employed to protect the privilege [against selfincrimination], and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. [The suspect] must be warned prior to any questioning (1) that he has the right to remain silent, (2) that anything he says can be used against him in a court of law, (3) that he has the right to the presence of an attorney, and (4) that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. L I D D E If suspects indicate, before or during questioning,L that they wish to remain silent, the interrogation must cease; if they state that they want an attorney, L Where an interrogation the questioning must cease until an attorney is present. is conducted without the presence of an attorney and , a statement is taken, a heavy burden rests on the government to demonstrate that a suspect knowingly and intelligently waived his or her right to counsel. However, if an individual being questioned is not yet in custody, the Miranda warnings do not have to T be given. Also, volunteered confessions do not violate Miranda or the Fifth Amendment. In 1980, in the case of Rhode Island v. IInnis, the Supreme Court expanded the meaning of interrogation under Miranda beyond express questioning “to any words or actions on the part of theFpolice (other than those normally attendant to arrest and custody) that the Fpolice should know are reasonably likely to elicit an incriminating response from the suspect.” A self-incrimination also The Fifth Amendment protection against compelled has been weakened by the Supreme Court. For example, in New York v. Quarles N (1984), the Supreme Court created a public-safety exception to the Fifth Amendment protection. Also, in Arizona v. Fulminante (1991), Y the Court ruled that improper use of a coerced confession is a harmless trial error if other evidence is strong enough to convict the defendant. The burden of proof is on the state to show that a coerced confession is harmless error. The 1 case involved a defendant who had been sentenced to death for killing his 11-year-old stepdaughter. While in prison, the defendant confessed to an FBI 5 informant after the informant promised to protect the defendant from other inmates. Prior to Fulmi6 nante, such a conviction would most likely have been reversed on appeal because of the use of the coerced confession. 8 However, in Dickerson v. United States (2000), the Court reaffirmed the importance of Miranda, even when it inconveniencesT law enforcement officers. In Dickerson, a bank robbery suspect asked the CourtSto throw out incriminating statements he made to FBI agents because he was not given Miranda warnings prior to questioning. Prosecutors argued that the suspect made voluntary statements, which were admissible under a law approved by Congress in 1968. The law gives federal judges authority to admit statements from suspects if the judges believe that the statements are voluntary. The Court disagreed and held that Congress did not have the authority to supersede the Supreme Court’s interpretation of the Constitution. Therefore, the incriminating statements made by the bank robbery suspect were inadmissible.19 In 2010, the Court backed off its strict enforcement of its Miranda decision by ruling that a crime suspect’s words can be used against him or her if he FYI 119 Coerced Confessions The first time the Supreme Court held that a coerced confession, brutally beaten out of the suspect, was inadmissible in a state trial was in 1936, in the case of Brown v. Mississippi. However, in the Brown case, the Court did not find that the coerced confession violated the Fifth Amendment protection against self-incrimination. Rather, the Court found that it violated the Fourteenth Amendment right to due process. boh11536_ch04_094-134.indd Page 120 07/06/11 4:51 AM user-f494 120 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice L I D D E Lee Malvo asserted his Fifth Amendment right against self-incrimination at a pretrial hearing L in the Washington, D.C. sniper case, when he was asked whether he would testify. He also “took the Fifth” when he was asked L whether he knew John Allen Muhammad, Malvo’s alleged co-conspirator. Should Malvo have been compelled to answer the questions? Why or why not? , or she fails to clearly tellTthe police that he or she does not want to talk. In the past, the government had the burden of showing that a crime suspect had I waived his rights. Many departments required “knowingly and intelligently” suspects to sign a waiver F of their Miranda rights before they were questioned. However, in Berghuis v. Thompkins, the Court shifted the burden to criminal suspects. The Court ruledFthat the police are not required to obtain a written waiver before questioning suspects, and that suspects must unambiguously A invoke their right to remain silent. The Fifth AmendmentNprotection against compelled self-incrimination also applies to trial procedures. If defendants do not voluntarily take the stand to testify, not only Y do they have a right to refuse to answer any questions put to them by the prosecution during a trial (by “pleading the fifth”), but they also have the right not to take the witness stand in the first place. 1 is forbidden to comment on the defendant’s Moreover, the prosecution silence or refusal to take 5 the witness stand. This protection rests on a basic legal principle: The government bears the burden of proof. Defendants are not obligated to help the 6 government prove they committed a crime. In 1964 and 1965, those Fifth Amendment rights were extended to defendants being tried in state courts in the8cases of Malloy v. Hogan and Griffin v. California, respectively. T S THE SIXTH AMENDMENT The Sixth Amendment reads as follows: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. boh11536_ch04_094-134.indd Page 121 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law Right to a Speedy and Public Trial The Sixth Amendment right to a speedy and public trial applies directly to trials in federal courts. It was extended to trials in state courts in 1967, in the case of Klopfer v. North Carolina (right to a speedy trial), and in 1948, in the case of In re Oliver (right to a public trial). Delays in a trial can severely hamper a defendant’s case if favorable witnesses have died, have moved and cannot be found, or have forgotten what they saw. Delays can also adversely affect defendants by forcing them to remain in jail for long periods of time while awaiting trial. A long wait in jail can be a very stressful and sometimes dangerous experience. In United States v. Marion (1971), the Supreme Court held that the right to a speedy trial “is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” It added that “invocation of the right need not await indictment, information, or other formal charge but begins with the actual restraints imposed by arrest if those restraints precede the formal preferring of charges.” In determining what constitutes a speedy trial, the Supreme Court has created L a balancing test that weighs both the defendant’s and the prosecution’s behavI the delay in a trial is ior (see Barker v. Wingo, 1972). Thus, the reason for critical. For example, a search for a missing witnessDwould probably be considered an acceptable reason for delay. Court congestion, on the other hand, D typically would not. The acceptable length of delay in a trial also depends partly on the nature E of the charge. In Barker, the Court held that “the delay that can be tolerated for an ordinary street crime is considerably less than L for a serious, complex conspiracy charge.” There has been great variation in the length of delay tolerL ated by specific courts. Federal courts are regulated by the Speedy Trial act , of 1974, which specifies two separate time limits: one for the period between arrest and charging, and the other for the period between charging and trial. The act stipulates that, generally, a delay between arrest and charging (that T is, the filing of an indictment or information) may be no more than 30 days, and a delay between charging and trial may be no more than 70 days. TheI act also specifies periods of delay that do not count—for example, delay due to the unavailability of an F that serve “the ends essential witness or continuances (that is, postponements) of justice.” If the delay, excluding periods of delay that F do not count, is longer than the number of days allowed, the court must dismiss the charges. A disAno good reasons for the missal with prejudice, which is given when there are delay, prevents the re-prosecution of the case. A dismissal without prejudice N gives the prosecutor the option of prosecuting the case again. The Sixth Amendment right to a public trial meansYthat a trial must be open to the public, but it need not be open to all who want to attend. Obviously, the number of people who can attend a trial depends on the size of the courtroom. The right would be violated only if the trial was 1 held, for example, in a prison or in a closed judge’s chambers against a defendant’s wishes. Defen5 dants have no right to a private trial. A trial may be closed to the public if the defendant’s 6 right to a public trial is outweighed by “a compelling state interest.” However, before a trial is closed, 8 an overriding interest “the party seeking to close the hearing must advance that is likely to be prejudiced, the closure must be no broader than necessary T to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the cloS sure” (Waller v. Georgia, 1984). In some cases, parts of a trial may be closed— for example, to protect the identity of an undercover informant during his or her testimony. Right to Impartial Jury of the State and District Wherein the Crime Shall Have Been Committed The right to an impartial jury promises not only that a jury will be unbiased but also that there will be a jury trial. As interpreted by the Supreme Court, this right means that defendants charged with felonies or with misdemeanors punishable by more than 6 months’ imprisonment are entitled to be tried before a jury. The right was extended to the states in 1968, in the case of 121 boh11536_ch04_094-134.indd Page 122 07/06/11 4:51 AM user-f494 122 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice FYI Jury Trials The fundamental right to a jury trial, itself, is provided in Article 3, Section 2.3, of the U.S. Constitution: “The Trial of all Crimes, except in Cases of impeachment, shall be by Jury, and such Trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” venue The place of the trial. It must be geographically appropriate. Duncan v. Louisiana. Most states also allow defendants to be tried by a jury for less serious misdemeanors, but states are not constitutionally required to do so. For practical purposes, the right to an impartial jury is achieved by providing a representative jury, that is, a jury randomly selected from a fair cross section of the community. However, whether members of such a jury will be impartial in a particular case is a question that defies an easy answer. Juries will be discussed more extensively in Chapter 8. Finally, the Sixth Amendment guarantees the specific venue, or the place of trial. (Venue is also mentioned in the Constitution in Article 3, Section 2: “Trial shall be held in the State where the said Crimes shall have been committed. . . .”) The venue of a trial must be geographically appropriate. Generally, a crime must be tried in the jurisdiction—the politically defined geographical area—in which it was committed. However, if a defense attorney believes that a client cannot get a fair trial in the appropriate venue because of adverse publicity or for some other reason, the attorney can ask the court for a change of venue. If the change of venue is granted, the trial L will be moved to another location (within the state in cases of state law violations), where, presumably, the adverse publicity or I In 1994, the state of Florida passed a law allowing other factors are not as great. a jury selected in one county D to hear a trial in another county. Before the law, trials—not juries—were moved, often causing hardship to victims’ families. D Right to Be Informed of the E Nature and Cause of the Accusation The right to notice and a hearing is the very core of what is meant by due process. In Twining L v. New Jersey (1908), for example, the Supreme Court held that “due process requires . . . that there shall be notice and opportunity for hearing given the L parties. . . . [T]hese two fundamental conditions . . . seem to be universally prescribed in all systems of law , established by civilized countries.” Later, in In re Oliver (1948), the Court opined, “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system T of jurisprudence.” The reason for the right is to prevent the practice, common in some countries, of holding suspects indefinitely without telling themI why they are being held. F F extended to trials in state courts in 1965, in the front opposing witnesses was case of Pointer v. Texas. InAessence, it means that defendants have a right to be present during their trials (otherwise, they could not confront opposing witN witnesses against them. However, the right to be nesses) and to cross-examine present during the trial may Y be forfeited by a defendant’s disruptive behavior. Thus, if a defendant continues to scream, use profanity, or refuse to sit quietly Right to Confront Opposing Witnesses The Sixth Amendment right to con- after being warned by the judge, the judge may have the defendant removed from the trial (see Illinois v. Allen, 1970). 1 In about 30 states, potentially disruptive defendants may have a stun belt strapped to their waist instead 5 of being shackled. If they become violent or try to escape during court proceedings, a deputy can push a remote-control button 6 charge of 50,000 volts and 4 milliamps of electricthat will deliver an 8-second ity to the defendants’ kidneys. 8 The jolt of electricity will likely knock them to the floor, incapacitate them, and cause them to writhe in pain. They may also T and bowels. Apparently, the fear of being shocked lose control of their bladder is enough to keep defendants in line. Nationally, between about 1991 and 2002, S the belt had been strapped on 62,000 defendants and had been activated only 20 34 times. Right to Compulsory Process for Obtaining Favorable Witnesses This right subpoena A written order issued by a court that requires a person to appear at a certain time and place to give testimony. It can also require that documents and objects be made available for examination by the court. ensures a defendant the use of the subpoena power of the court to compel the testimony of any witnesses who may have information useful to the defense. A subpoena is a written order issued by a court that requires a person to appear at a certain time and place to give testimony. It can also require that documents and objects be made available for examination by the court. Even though the right to compulsory process for obtaining favorable witnesses was already boh11536_ch04_094-134.indd Page 123 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 123 applicable in many states because of its inclusion in state constitutions and laws, the Supreme Court officially extended it to state trials in 1967, in the case of Washington v. Texas. Right to Counsel The Sixth Amendment right to privately retained and paid-for counsel has existed in federal courts since the ratification of the Bill of Rights. (The terms counsel, attorney, and lawyer are interchangeable.) Criminal defendants in state courts did not gain the right until 1954. In the case of Chandler v. Fretag, the Supreme Court held that the right to a privately retained lawyer is “unqualified,” that is, as long as a criminal defendant (or suspect) can afford to hire an attorney, he or she has the right to be represented by that attorney, not only at trial, L if but at any stage of the criminal justice process. But what a criminal defendant is indigent, lacking the funds to hire I an attorney? The Supreme Court first extended the right to court-appointed counsel to indigents in PowellD v. Alabama (1932). The right, however, was extended only to indigents in death penalty cases who were “incapableD adequately of making [their] own defense because of ignoE rance, feeblemindedness, illiteracy or the like.” Moreover, Disorderly defendant removed from courtroom. Should courts be L the Court’s decision in Powell was based on the Fourteenth able to use stun belts to keep disorderly defendants in line? Why Amendment right to due process and not on the Sixth or why not? L Amendment right to counsel. It was not until 1938, in the case of Johnson v. Zerbst, that the Supreme Court, first extended the Sixth Amendment right to court-appointed counsel to indigent defendants facing felony charges in federal trials. Another 25 years passed before the right to courtappointed counsel was extended to indigent defendants T facing felony charges in state courts. That right was granted in the famous case of Gideon v. Wainwright (1963). In 1972, in the case of Argersinger v. HamlinI, the Court extended the Sixth Amendment right to court-appointed counselFto defendants in misdemeanor trials in which a sentence to jail might result. Thus, as a result of those F whether classified as decisions, no person may be imprisoned for any offense, petty, misdemeanor, or felony, unless he or she is represented by counsel. If the A person cannot afford to hire an attorney, then the court is required to appoint one. However, if there is no possibility of incarceration, Nthen a defendant has no right to state-furnished counsel (see Scott v. Illinois, 1979). Later, in Alabama v. Shelton (2002), the Court added that indigents have aYright to court-appointed counsel even when a defendant is given “a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty.’” 1 In other Supreme Court decisions, the Sixth Amendment right to counsel has been extended to indigents at additional critical stages (described in Chap5 ter 8 and elsewhere in this book) and other circumstances in the administration of justice, “where substantial rights of the accused 6may be affected.” Those include (by date of Supreme Court decision): 8 1. 2. 3. 4. 5. 6. 7. 8. Arraignment, under most circumstances (Hamilton v. Alabama, 1961) The plea bargaining process (Carnley v. CochranT , 1962) Initial appearances where defendants may be compelled to make S decisions that may later be formally used against them (White v. Maryland, 1963) Interrogations after formal charges (Massiah v. United States, 1964) Post-charge police lineups (United States v. Wade, 1967; Gilbert v. California, 1967) Sentencing (Mempa v. Rhay, 1967) Preliminary hearings (Coleman v. Alabama, 1970) A psychiatric examination used by the prosecution to show that a murder defendant remains dangerous and should receive the death penalty (Estelle v. Smith, 1981) boh11536_ch04_094-134.indd Page 124 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles CAREERS IN CRIMINAL JUSTICE Public Defender My name is Junior A. Barrett, and I am an assistant public defender in the Major Crimes Unit of the Public Defender Office in the Ninth Judicial Circuit (Orange and Osceola Counties in Florida). I have a Bachelor of Science degree in Criminal Justice Administration and Planning from John Jay College of Criminal Justice, City University of New York. I also have a Juris Doctor from Union University, Albany Law School, Albany, New York. My decision to represent indigent clients was made before I even started college. I wanted to do something that was not only challenging, but where I felt I could help the poor. Growing up on the island of Jamaica and in Brooklyn, New York, I saw what can happen to people who don’t receive proper legal representa- tion. I knew people who were railroaded by the criminal justice system and by lawyers who did not really care, but instead saw what they did as just a job. I started working for the Public Defender’s Office in July of 1991 doing misdemeanor and traffic-related offenses. About six years ago, I was promotedLto the Major Crimes Unit where I I represent clients charged with D capital sexual battery and firstdegree murder. D My days are never typical. E Sometimes they start with a trip to the Orange County Jail to talk L to a client about his case and L what we will need to do to prepare for court. Another day might , begin with me sitting down with an investigator to talk about locating witnesses. T A large portion of my day is I spent trying to reconstruct my client’s life and reviewing evi-F dence. Reconstructing my cliF ent’s life involves contacting AIt family and friends of my client. also involves my spending a lot N Y of time contacting different agencies in order to get copies of my client’s school records, medical records, mental health records, military records, job records, and even records of time the client spent in jail or prison. This information is then used to try and convince a jury that my client should not be executed. Ultimately, everything I do is in preparation for trying the case. A first-degree murder trial usually takes about a week to try. If the death penalty is involved, it can take two weeks. Often, the case does not end at a trial. There are appeals, rehearings, and sometimes even retrials. It is hard to say what I like best and least about my job. Sometimes it is seeing the tears of joy running down the cheeks of my client as a jury says not guilty. Sometimes it is knowing that the State of Florida will not be able to execute my client. Other times it is the camaraderie that I find in the Public Defender’s Office. On the flip side, one of the things I enjoy least about my job is a verdict of guilty in spite of the evidence. I also dislike the fact that even after a verdict of not guilty, my client’s life is ruined forever. I have had clients who have lost many months of their lives because they were in jail awaiting a final disposition of their case. There is no way to give back to an innocent client the months he sat in jail waiting to be tried by a jury. The job of an assistant public defender is a morally rewarding one. You deal with real-life situations that are often interesting, challenging, and fast paced. You put in long hours for little pay. You have to deal with assistant state attorneys who think your clients are scum, judges who care little for your clients’ rights, and clients who sometimes verbally abuse you. If you can handle all that, at the end of the day you will feel that you have truly helped another human being. You have to be prepared to fight the good fight. Would you choose to defend indigent clients? Why or why not? 1 5 To date, the Court has not extended the Sixth Amendment right to counsel to 6 preindictment lineups, booking, grand jury investigations, or appeals after the first one. 8 The Sixth Amendment not only guarantees the right to counsel in the areas T to which it has been extended, it also guarantees the right to the “effective assistance of counsel” (seeSMcMann v. Richardson, 1970). However, it was not until 1984, in the case of Strickland v. Washington, that the Supreme Court first established standards to define “ineffective assistance of counsel.” The Court ruled that two facts must be proved to show that counsel was ineffective: (1) that counsel’s performance was “deficient,” meaning that counsel was not a “reasonably competent attorney” or that his or her performance was below the standard commonly expected, and (2) that the deficiencies in the attorney’s performance were prejudicial to the defense, meaning that there is a “reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” In other words, not only must it be shown that an attorney was incompetent, it must also be shown that there 124 boh11536_ch04_094-134.indd Page 125 10/06/11 8:01 PM user-f494 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Chapter 4 The Rule of Law 125 is a reasonable probability that the incompetence led to the final result. Thus, if the defendant was clearly guilty of the crime with which he or she was charged, it would most likely be impossible to win a claim of “ineffective assistance of counsel.” Finally, the right to counsel may be waived, but only if the waiver is made knowingly, intelligently, and voluntarily. Thus, the Sixth Amendment has also been interpreted to mean that defendants have the right to represent themselves, that is, to conduct the defense pro se (see Faretta v. California, 1975). However, if defendants choose to represent themselves, they cannot claim later, on appeal, that their defense suffered from ineffective assistance of counsel. THE EIGHTH AMENDMENT The Eighth Amendment reads as follows: L I D Protection Against Excessive Bail and Fines The Eighth D Amendment protection against excessive bail and fines is the second Bill of Rights guarantee dealing E to the states. (The first directly with criminal justice that has not been extended is the right to a grand jury indictment in felony cases.)LHowever, there is a good possibility that the protection against excessive bail will be incorporated and L issue is finally brought made applicable to state-level criminal cases when the before the Supreme Court. , In any event, it is important to note that the Eighth Amendment to the Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Constitution does not require that bail be granted to all suspects or defendants, only that the amount of bail not be excessive. What constitutes excessive bail T is determined by several factors, including the nature and circumstances of the offense, the weight of evidence against the suspect orI defendant, the character of the suspect or defendant, the suspect or defendant’s ties to the community, F The subject of bail will and the ability of the suspect or defendant to pay bail. be discussed more fully in Chapter 8. F The Eighth Amendment also prohibits excessive fines. What is excessive A in a conviction for depends on the seriousness of the crime. For example, illegal possession of a small amount of marijuana, a defendant having to forfeit N his or her home might be considered an excessive fine. Y Protection Against Cruel and Unusual Punishments The final prohibition of the Eighth Amendment is against “cruel and unusual 1 punishments.” That prohibition was extended to trials in state courts in 1962, in Robinson v. 5 the practice of capital California. Generally, discussions of this issue involve punishment, or the death penalty, which will be discussed 6 in detail in Chapter 9. Here we will provide only a brief history of the definition of cruel and unusual 8 punishments. For approximately 120 years after the adoption of the Bill of Rights, the T Supreme Court employed a fixed, historical meaning for “cruel and unusual punishments.” In other words, the Court interpreted S the concept’s meaning in light of the practices that were authorized and were in use at the time the Eighth Amendment was adopted (1791). Thus, only the most barbarous punishments and tortures were prohibited. Capital punishment itself was not prohibited because there was explicit reference to it in the Fifth Amendment and it was in use when the Eighth Amendment was adopted. The Court, in Wilkerson v. Utah (1878), provided examples of punishments that were prohibited by the Eighth Amendment because they involved “torture” or “unnecessary cruelty.” They included punishments in which the criminal “was emboweled alive, beheaded, and quartered.” In another case, In re Kemmler (1890), the Court expanded the meaning of cruel and unusual punishments FYI Bills of Attainder The Constitution—in Article 1, Sections 9.3 and 10.1—prohibits bills of attainder. Under English common law, these legal documents stripped convicted offenders of their citizenship and allowed the Crown to confiscate all of their property. Bills of attainder also extended to include offenders’ families, who were judged “attainted” and could not inherit the offender’s property. Recent civil forfeitures of property in drug violations seem to circumvent the constitutional prohibition. In some cases, property has been confiscated even though the suspect was never arrested or convicted of a crime. boh11536_ch04_094-134.indd Page 126 07/06/11 4:51 AM user-f494 126 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice L I D D E L L During the Inquisition, heretics were subjected to fire torture on the wheel. Do you consider this , violation of the Eighth Amendment? Why or why not? cruel and unusual punishment in to include punishments that “involve torture or lingering death . . . something T more than the mere extinguishment of life.” The Court also provided some examples of punishments Ithat would be prohibited under that standard: “burning at the stake, crucifixion, breaking on the wheel, or the like.” F case of Weems v. United States, the Supreme In 1910, in the noncapital Court abandoned its fixed, F historical definition of cruel and unusual punishments and created a new one. Weems was a U.S. government official in the A of making two false accounting entries, amountPhilippines who was convicted ing to 612 pesos ($14.07 in 2011 dollars).21 He was sentenced to 15 years of N hard labor and was forced to wear chains on his ankles and wrists. After completing his sentence, he was Y to be under surveillance for life, and he was to lose his voting rights as well. Weems argued that his punishment was disproportionate to his crime, and, therefore, cruel and unusual. The Court agreed with1Weems and, breaking with tradition, held “(1) that the meaning of the Eighth Amendment is not restricted to the intent of the 5 Amendment bars punishments that are excessive, Framers, (2) that the Eighth and (3) that what is excessive is not fixed in time but changes with evolving 6 social conditions.” Thus, the Court no longer interpreted the concept of cruel and unusual punishments 8 in the context of punishments in use when the Eighth Amendment was adopted. Instead, it chose to interpret the concept in T conditions.” the context of “evolving social The Court further clarifi S ed its position nearly 50 years later in another noncapital case, Trop v. Dulles (1958). As punishment for desertion during World War II, Trop was stripped of his U.S. citizenship. In reviewing the case on appeal, the Court ruled that the punishment was cruel and unusual, because it was an affront to basic human dignity. Noting that the “dignity of man” was “the basic concept underlying the Eighth Amendment,” the Court held that Trop’s punishment exceeded “the limits of civilized standards.” Referring to the earlier Weems case, the Court emphasized that “the limits of civilized standards . . . draws its meaning from the evolving standards of decency that mark the progress of a maturing society.” Those “evolving standards of decency” are, in turn, determined by “objective indicators, boh11536_ch04_094-134.indd Page 127 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law such as the enactments of legislatures as expressions of ‘the will of the people,’ the decisions of juries, and the subjective moral judgments of members of the Supreme Court itself.” In short, it appears that a punishment enacted by a legislature and imposed by a judge or jury will not be considered cruel and unusual as long as the U.S. Supreme Court determines that (1) it is not grossly disproportionate to the magnitude of the crime, (2) it has been imposed for the same offense in other jurisdictions, and (3) it has been imposed for other offenses in the same jurisdiction (see Solem v. Helm, 1983; Harmelin v. Michigan, 1991; Ewing v. California, 2003; Lockyer v. Andrade, 2003). THINKING CRITICALLY 1. Which of the amendments within the Bill of Rights do you think are the most protective of the rights of the accused? Why? L I D Protecting the Accused from D E Miscarriages of Justice L The legal system of the United States is unique in the world in the number of L accused of crimes. The procedural rights that it provides people suspected or primary reason for procedural rights is to protect innocent people, as much as , possible, from being arrested, charged, convicted, or punished for crimes they 2. Why is the Bill of Rights subject to interpretation by the Supreme Court? did not commit. One of the basic tenets of our legal system is that a person is considered innocent until proven guilty. However, even with arguably the most T highly developed system of due process rights in the world, people continue to be victims of miscarriages of justice. For example, I attorney Barry Scheck and his colleagues report, “Of the first eighteen thousand results [of DNA tests] at the FBI and other crime laboratories, at least five F thousand prime suspects were excluded before their cases were tried.” In other F words, more than 25% of the prime suspects were wrongly accused. Scheck is a co-founder of the A York City.22 Innocence Project at the Cardoza School of Law in New Unfortunately, there is no official record of miscarriages of justice, so it is N impossible to determine precisely how many actually occur each year. Nevertheless, in an effort to provide some idea of the extent Y of the problem, a study was conducted of wrongful convictions—miscarriages of justice at just one of the stages in the administration of justice.23 In the study, wrongful convictions were defined as cases in which a person “[is] convicted 1 of a felony but later . . . found innocent beyond a reasonable doubt, generally due to a confession by the actual offender, evidence that had been available5but was not sufficiently used at the time of conviction, new evidence that was not previously available, 6 and other factors.” The conclusions of the study were based on the 8findings of a survey. All attorneys general in the United States and its territories were surveyed, and in T county prosecutors, all Ohio, all presiding judges of common pleas courts, all county public defenders, all county sheriffs, and theSchiefs of police of seven major cities were also surveyed. The authors of the study conservatively estimated that approximately 0.5% of all felony convictions are in error. In other words, of every 1,000 persons convicted of felonies in the United States, about 5 are probably innocent. The authors believe that the frequency of error is probably higher in less serious felony and misdemeanor cases. Although an error rate of 0.5% may not seem high, consider that in 2009, a typical year, approximately 14 million people were arrested in the United States.24 Assuming conservatively that 50% of all people arrested are convicted25—about 7 million convictions in 2009—then approximately 35,000 people were probably wrongfully convicted! 127 boh11536_ch04_094-134.indd Page 128 10/06/11 8:02 PM user-f494 128 /201/MHSF270/boh11536_disk1of10/0078111536/boh11536_pagefiles Part One The Foundations of Criminal Justice FYI Death Row Reversals From 1973 through 2010, 138 inmates in 26 states have been freed from death row because of problems or errors in the legal process. Common reasons for reversals include (1) key witnesses lied or recanted their testimony, (2) police overlooked or withheld important evidence, (3) DNA testing showed someone else committed the crime, (4) the defense lawyer was incompetent or negligent, and (5) prosecutors withheld exculpatory evidence from the defense. Source: Death Penalty Information Center, www; Jonathan Alter, “The Death Penalty on Trial,” Newsweek, June 12, 2000. L I Roberto Miranda is one of more than 100 inmates since 1973 who have been released from death row because of evidenceD of their innocence. Mr. Miranda spent 14 years on Nevada’s death row. What, if anything, does the state of Nevada owe Mr. Miranda? D E Eyewitness misidentifiL cation is the most important factor contributing to wrongful convictions. For example, a study of DNA exonerations by the Innocence Project found L that more than 80% of wrongful convictions could 26 be attributed, at least in part, , to eyewitness or victim misidentification. The second and third most important contributing factors are police and prosecutorial errors, respectively. They accounted for nearly 65% of the DNA exonerations in the Innocence Project study.27 Overzealous police officers and T prosecutors, convinced that a suspect or defendant is guilty, may prompt witnesses, suggest to witnesses what may have occurred at the time of the I crime, conceal or fabricate evidence, or even commit perjury. Another factor contributing to wrongful Fconvictions is guilty pleas made “voluntarily” by innocent defendants. Innocent F defendants are more likely to plead guilty to crimes they did not commit when they are faced with multiple charges and when the probability of A severe punishment is great. They are also more likely to plead guilty to crimes they did not commit when they are mentally N incompetent. When the charge is a Y less serious one, innocent people who are unable to post bail sometimes admit guilt to be released from jail immediately. For many people, release from jail is more important than a minor criminal record. Besides, it is often1difficult to prove one’s innocence. (Remember that in the United States the prosecution is required to prove, beyond a reason5 are guilty. Defendants are not required to prove able doubt, that defendants their innocence.) Problems faced by innocent people wrongly accused of 6 crimes include inability to establish an alibi; misidentification by witnesses who swear they saw the8defendant commit the crime; a lawyer who lacks the skill, time, or resources to mount a good defense; and a lawyer who is T unconvinced of the defendant’s innocence. Inadequate legal representation is one of the most important factors in wrongful convictions in death penalty S cases.28 It accounted for nearly a third of the wrongful convictions discovered in the Innocence Project study.29 Other factors contributing to wrongful convictions are community pressures, especially in interracial and rape cases; false accusations; knowledge of a defendant’s prior criminal record; judicial errors, bias, or neglect of duty; errors made by medical examiners and forensic experts; and errors in criminal record keeping and computerized information systems.30 In short, numerous factors can cause wrongful convictions. And remember, the foregoing discussion addresses only wrongful convictions; it does not consider wrongful arrests or other miscarriages of justice. boh11536_ch04_094-134.indd Page 129 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law 129 What, if anything, can be done about miscarriages of justice? Scheck and his colleagues suggest the following reforms: • DNA Testing Allow postconviction DNA testing nationwide. Test DNA on unsolved crimes where evidence exists. • Witness IDs An independent, trained examiner who does not know the suspect should conduct live lineups and videotape lineups, and handle photo IDs and photo spreads to ensure investigators don’t influence witnesses and thereby to ensure neutrality. • Confessions Videotape all interrogations. • Informants A committee of prosecutors should screen all informant testimony before permission to use at trial. All deals between prosecutors and informants must be in writing. • Forensics Crime labs should function and be funded separately from police, prosecution, or defense. Strengthen accreditation programs for labs and establish postgraduate forensic programs at universities. L to deal with legal • Police, Prosecutors Establish disciplinary committees misconduct by police and prosecution. I • Defense Attorneys Increase fees to attract competent lawyers. Public D defenders’ pay should equal prosecutors’ pay. • Wrongful Convictions Establish innocence commissions to investigate D wrongful convictions. Create and fund innocence projects at law schools to represent clients. Provide compensation to those E who were clearly wrongly convicted. Have a moratorium on death penalty.31 L Despite miscarriages of justice, many people still resent the provision of L procedural safeguards to criminal suspects. The accusation is frequently made that procedural rights protect criminals and penalize ,victims—that many criminals escape conviction and punishment because of procedural technicalities. For example, a driving force behind the good faith and inevitable-discovery exceptions was the belief that a substantial number of criminal offenders T escaped punishment because of the exclusionary rule. The available evidence, however, does not support the belief. One of the most I thorough studies of the effect of the exclusionary rule was conducted by the National Institute of F in California between Justice (NIJ).32 The NIJ study examined felony cases 1976 and 1979—a period during which the American F public was becoming increasingly alarmed about the problem of crime and especially about what A number of criminals was perceived as the practice of allowing a substantial to escape punishment because of legal technicalities. The study found that N only a tiny fraction (fewer than 0.5%) of the felony cases reaching the courts were dismissed because of the exclusionary rule. It is Yimportant to emphasize that the study examined only the cases that reached the courts. It excluded cases that prosecutors elected not to pursue to trial because they assumed that the exclusionary rule would make the cases impossible 1 to win. However, studies show that although there is some variation between jurisdictions, fewer 5 before trial because of than 1% of cases overall are dropped by prosecutors search and seizure problems.33 Interestingly, 71.5% of the California cases 6 affected by the exclusionary rule involved drug charges. The problem in most of the drug cases was that in the absence of complaining witnesses, over8 aggressive law enforcement officers had to engage in illegal behavior to obtain T evidence. A study of the effect of the exclusionary rule at the S federal level was conducted by the General Accounting Office (GAO).34 The GAO examined 2,804 cases handled by 38 different U.S. attorneys in July and August of 1978. The GAO found results similar to those found by the NIJ in California. In only 1.3% of the nearly 3,000 cases was evidence excluded in the federal courts. Again, note that the study included only cases that went to trial. However, as noted earlier, evidence shows that, overall, fewer than 1% of cases are dropped by prosecutors before trial because of search and seizure problems. Moreover, having evidence excluded from trial does not necessarily mean that a case is impossible to win and that the defendant will escape punishment. A defendant may still be convicted on the basis of evidence that was legally obtained. CJ Online NIJ Learn more about the National Institute of Justice and its various research findings by accessing its website at Why is it important to have research organizations such as the NIJ? boh11536_ch04_094-134.indd Page 130 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles CAREERS IN CRIMINAL JUSTICE Paralegal My name is Renée Daniel, and I have an Associate of Applied Science Degree in Paralegal Studies from State Technical Institute at Memphis, now called Southwest Tennessee Community College. Currently I am a senior pursuing a Bachelor of Arts Degree in Criminology and Criminal Justice from the University of Memphis. After graduating from State Tech, I was chosen by the chairperson and associate professors of the Paralegal Studies Department to be the recipient of a scholarship to pursue my Bachelor’s Degree and also work as a paralegal in the Shelby County Jail Law Library. Prior to graduating from State Tech, I interned as a paralegal for the Shelby County Division of Corrections. As a paralegal intern I had the opportunity to learn the various duties and responsibilities a paralegal encounters. During my internship I was able to review and answer inmate disciplinary appeals, draft documents, review discovery for litigation, and research case law and brief cases. As a paralegal in the County Jail, I assist inmates/pretrial detainees with legal research. Inmates are scheduled to report to the law library through program services in groups. My job involves assisting them in locating case law, statutes, sentencing guidelines, information pertaining to criminal procedure, pretrial motions, and petitions. I act as a liaison between the inmates and the courts by verifying all outgoing legal calls. I have contacted attorneys, probation officers, parole officers, court clerks, and on some occasions, Immigration and Naturalization Services. My duties as a paralegal not only involve assisting inmates with preparation for trial/appeal but also managing and organizing the law library. I log and inventory all legal material that comes to the library and supervise the placement and rotation of books and supplements. In order to adequately assist the inmates with significant research, the legal material must be monitored at all times. I consult L frequently with practicing attorneys regarding relevantIsubstantive and procedural legalD material that would help those who are preparing for trial D or filing motions. If we do not already E have the material, I submit a request to the director L of programs to order necessary items. L The aspect I like most about , my job is the opportunity I have to utilize the skills I have learned in the Paralegal Studies and T Criminology and Criminal Justice I I enjoy legal research programs. and applying legal principles to F substantive criminal law. My job F me to see firsthand how allows the criminal A justice system works N Y MYTH Many criminals escape punishment because of the Supreme Court’s decision in Miranda v. Arizona. FACT Very few criminals escape punishment because of that decision. 130 from arrest to sentencing and appeal. What I like least about my job are the imperfections that exist in the criminal justice system. I often see several inmates who have been detained in the jail for a year or more before they are indicted. There have been cases where inmates have served their entire sentences in the jail by the time they go to trial. Another aspect about my job that I like least is the destructive behavior that some inmates display by destroying legal books. Once these books are destroyed it is difficult to have them replaced. Paralegals work in several areas of the legal system with knowledge of substantive and procedural law. A paralegal has the opportunity to work in numerous areas of the law. I would advise paralegal students to intern first to gain insight and experience in the area of law in which they wish to work. What type of growth opportunities would you expect as a paralegal? The Miranda mandates, like the exclusionary rule, are also viewed by many people as legal technicalities that allow guilty criminals to escape punishment. That view is fortified by1Supreme Court Justice Byron White’s dissent in Miranda: “In some unknown number of cases the rule will return a killer, a 5 the streets.” No doubt, Justice White’s warning is rapist or other criminal to true, but the evidence suggests that only a very small percentage of cases are 6 lost as a result of illegal confessions. In one large survey, for example, fewer than 1% of all cases were thrown out because of confessions illegally obtained.35 8 In another study of decisions made by the Indiana Court of Appeals or the T November 6, 1980, through August 1, 1986, the Indiana Supreme Court from researchers found that inSonly 12 of 2,354 cases (0.51%) was a conviction overturned because of the failure of the police to correctly implement the Miranda safeguards.36 In only 213 of the 2,354 cases (9%) was a claim even made about improper interrogation procedures by the police, and in 201 of those 213 cases, the conviction was affirmed by the appellate court, resulting in a reversal rate of 5.6% for the cases raising a Miranda question. The authors of that study speculated on possible reasons for the low rate of successful appeals. One was that the police routinely comply with the Miranda decision. In fact, most police support Miranda and the other reforms because it makes them appear more professional. The second possible reason was that the police are able to solve most cases without having to question suspects. boh11536_ch04_094-134.indd Page 131 07/06/11 4:51 AM user-f494 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Chapter 4 The Rule of Law Studies show that the Miranda warnings rarely stop suspects from confessing anyway. Nearly 80% of suspects waive their Miranda rights. As many as 75% of suspects attempt to clear themselves in the eyes of the police and end up incriminating themselves instead; other suspects simply do not understand that they have a right to remain silent.37 Third, the police are able to evade Miranda by using strategies that are more sophisticated, such as skillfully suggesting that suspects volunteer confessions or casually talking with suspects in the back of squad cars.38 And, fourth, prosecutors, knowing that they cannot win cases involving illegal interrogations, screen them out before trial or settle them through alternative means, such as plea bargaining. However, as with the exclusionary rule, fewer than 1% of cases overall are dismissed or handled in other ways by prosecutors because of Miranda.39 In short, the available evidence suggests that the effects of both Miranda and the exclusionary rule in Fourth and Fifth Amendment contexts have been minor.40 L I Do you think miscarriages of justice are on the increase? Decrease? Why or why not? D Do you think that anything can be done to combat miscarriages of justice? D E L L , THINKING CRITICALLY 1. 2. T I F F A N Y 1 5 6 8 T S 131 boh11536_ch04_094-134.indd Page 132 07/06/11 4:51 AM user-f494 132 /202/MHSF283/Luc06732_disk1of1/0073406732/Luc06732_pagefiles Part One The Foundations of Criminal Justice Summary 1. Distinguish between criminal law and civil law. There are two general types of law practiced in the United States—criminal and civil. 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 community. The violation of a criminal law is a crime and is considered an offense against the state. Civil law is a means of resolving conflicts between individuals. The violation of a civil law is a tort—an injury, damage, or wrongful act—and is considered a private matter between individuals. 2. Distinguish between substantive law and procedural law. There are two types of criminal law—substantive and procedural. Substantive law defines criminal offenses and their penalties. Procedural law specifies the ways in which substantive laws are administered. Procedural law is concerned with due process of law—the rights of people suspected of or charged with crimes. 3. List five features of “good” criminal laws. Ideally, good criminal laws should possess five features: (1) politicality, (2) specificity, (3) regularity, (4) uniformity, and (5) penal sanction. 4. Explain why criminal law is a political phenomenon. Criminal law is the result of a political process in which rules are created by human beings to prohibit or regulate the behavior of other human beings. Nothing is criminal in and of itself; only the response of the state makes it so. 5. Summarize the origins of American criminal law. The criminal law of the United States is, for the most part, derived from the laws of England and is the product of constitutions and legislative bodies, common law, and, if provided for by statute, some administrative or regulatory agency rules and decisions. 6. Describe the procedural rights in the Fourth Amendment. The Fourth Amendment protects persons from unreasonable searches and seizures (including arrests). Under most circumstances, it requires that a judge issue a search warrant authorizing law officers to search for and seize evidence of criminal activity, but the warrant can be issued only when there is probable cause. In 1914, the Supreme Court adopted the exclusionary rule, which barred evidence seized illegally from being used in a criminal trial; in 1961, the rule was made applicable to the states. Subsequent Supreme Court decisions have narrowed the application of the exclusionary rule. The Fourth Amendment also protects persons from warrantless searches and seizures in places where they have a legitimate right to expect privacy. The protection, however, does not extend to every place where a person has a legitimate right to be. The Court has permitted stopping and searching an automobile when there is probable cause to believe the car is carrying something illegal. 7. Describe the procedural rights in the Fifth Amendment. The Fifth Amendment provides many procedural protections, the most important of which is the protection against compelled self-incrimination. This protection was extended to most police custodial interrogations in the 1966 case of Miranda v. Arizona. According to Miranda, police custody is threatening and confessions obtained during custody can be admitted into evidence only if suspects have been (1) advised of their constitutional right to remain silent, (2) warned that what they say can be used against them in a trial, (3) informed of the right to have an attorney, and (4) told that if they cannot afford an attorney, one will be appointed for them prior to questioning, if they so desire. Suspects may waive their Miranda rights, but only if the waiver is made knowingly, intelligently, and voluntarily. Other due process rights in the Fifth Amendment are the right to a grand jury indictment in felony cases (in federal court) and protection against double jeopardy. L I D D E L L 8. Describe the procedural rights in the Sixth Amendment. , Many due process rights are provided by the Sixth Amendment: the right to a speedy and public trial, the right to an impartial jury of the state and district where the crime occurred, the right to be informed of the nature and cause of the accusation, the right to confront opposing witnesses, the right to compulsory process for obtaining favorable witnesses, and the right to counsel. In the 1963 case of Gideon v. Wainwright, the Supreme Court extended the right to court-appointed counsel to any poor state defendant charged with a felony. T I F F A 9.NDescribe the procedural rights in the Eighth Amendment. YThe Eighth Amendment protects against “cruel and unusual punishments.” The Supreme Court has rarely ruled on this provision, generally approving a punishment as long as it has been enacted by a legislature; it has been imposed by a judge or jury; and the Court determines that (1) it is not grossly disproportionate to the magnitude of the crime, (2) it has been imposed for the same offense in other jurisdictions, and (3) it has been imposed for other offenses in the same jurisdiction. The Eighth Amendment also protects against excessive bail and fines, but those protections have not been made binding on state courts. 1 5 6 8 T S 10. Explain why procedural rights are important to those accused of crimes. The primary reason for procedural rights is to protect innocent people, as much as possible, from being arrested, charged, convicted, or punished for crimes they did not commit. However, even with the most highly developed system of procedural, or due process, rights in the world, criminal defendants in the United States still face miscarriages of justice.

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