Criminal Law: A Desk Reference

Criminal Law: A Desk Reference

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Criminal Law: A Desk Reference

, 4th Edition

Understand criminal law! Learn about crimes, the system, and your rights.

With Criminal Law: A Desk Reference, you'll learn the criminal justice system from A to Z. The book offers clear, plain English explanations of the law accompanied by real-world illustrations. It covers critical stages of criminal cases, common offenses and defenses, and the latest trends in crime and punishment.

See below for a full product description.

Product Details

Whether you’re studying law, work in law enforcement, or simply want to know more about the criminal justice system, this book can help.

Criminal Law: A Desk Reference covers the basic to the complex in alphabetical order. Whether it’s “alibi” or “writ of habeas corpus,” the book makes it easy to find and understand what you’re looking for.

With this book you’ll be able to:

•   learn the law with real-life examples
•   understand procedures from arraignment through appeals
•   see defenses to common crimes, and
•   understand recent movements in the law, like new rules on cellphone privacy and the elimination of cash bail.

The fourth edition has been thoroughly updated to reflect the latest criminal law trends and Supreme Court rulings.

 

“Nolo is always there in a jam as the nation’s premier publisher of do-it-yourself legal books.” - Newsweek

“The legal arena is where Nolo shines.” - San Jose Mercury News

“Nolo is a pioneer in both consumer and business self-help books and software.”  -Los Angeles Times

 

ISBN
9781413325768
Number of Pages
432

About the Author

  • Paul Bergman, UCLA Law School Professor

    Paul Bergman is a Professor of Law at the UCLA School of Law and a recipient of two University Distinguished Teaching Awards. His books include Nolo’s Deposition Handbook (with Moore, Nolo); Reel Justice: The Courtroom Goes to the Movies (Andrews & McMeel); Trial Advocacy: Inferences, Arguments, Techniques (with Moore and Binder, West Publishing Co.); Trial Advocacy in a Nutshell (West Publishing Co.); Represent Yourself in Court: How to Prepare & Try a Winning Case (with Berman, Nolo); Depositions in a Nutshell (with Moore, Binder, and Light, West Publishing); Lawyers as Counselors: A Client-Centered Approach (with Binder, Tremblay, and Weinstein, West Publishing); and Cracking the Case Method (Vandeplas Publishing). He has also published numerous articles in law journals.

Sample Chapter

This book is an A to Z reference guide, so Chapter 1 is "A", Chapter 2 is "B", etc.

Chapter 1  

A

abuse excuse

Offenders who have been subject to victimization—typically a history of abuse by a spouse, significant other, or parent—may attempt to mitigate punishment or disclaim responsibility for their criminal acts because of this past abuse (the “abuse excuse”). Critics claim that advancing such factors into a criminal prosecution enables offenders to avoid accountability. Proponents, particularly attorneys who represent battered women, point out that the laws regarding self-defense are ineffective for their clients because the danger of harm must be imminent or immediate. Most states have responded by creating a defense of “imperfect self-defense.” Imperfect self-defense can apply to various defendants, including those who are victims of previous abuse. For victims of past abuse charged with attacking an abuser, it creates an opportunity to mitigate or even escape criminal responsibility by proving that the history of abuse led them to believe reasonably, if mistakenly, that force was necessary to avoid an imminent attack. Past victimization and abuse is also occasionally put forward as part of an insanity defense: An abuse victim charged with a crime claims that a history of abuse led to an inability to understand the difference between right and wrong. A convicted defendant may also cite a history of abuse during the sentencing process as a mitigating factor in punishment.

Related terms: syndrome evidence; insanity; self-defense; battered woman syndrome.

accessories

See accomplices and accessories.

accomplices and accessories

People who assist perpetrators (or “principals”) in carrying out criminal acts are categorized either as accomplices (if they participate in the commission of a crime) or accessories (if they are behind-the-scenes participants before or after a crime is committed). Here’s how the law distinguishes between them.

Accomplices. Accomplices actively participate in the activity that constitutes a crime and are subject to the same punishment as principals. For example, the driver who waits in the getaway car while the principal robs a bank is an accomplice. An ever-present risk is that accomplices will seek to curry favor with prosecutors by exaggerating other participants’ criminal responsibility while downplaying their own. Thus, a common criminal law rule provides that an accomplice’s testimony is not by itself sufficient to sustain a conviction. Prosecutors have to offer evidence of defendants’ guilt that is independent of accomplices’ testimony.

Accessories Before the Fact. Accessories are “behind the scenes” culprits and are categorized as either “before the fact” or “after the fact” (the “fact” referring to the commission of the crime). Accessories before the fact knowingly help principals before a crime is committed but do not participate actively in its commission. Nevertheless, accessories before the fact are as guilty as principals in the eyes of the law.

EXAMPLE: Archie designed a bank building. Archie gives his friend Willie the blueprints, believing Willie’s statement that he needs them to help his child with a school project. In fact Willie uses the blueprints to rob the bank. Archie is not an accessory before the fact because he didn’t knowingly help Willie, the principal, commit the robbery. However, if Willie tells Archie, “If you get me the blueprints for the bank, I’ll rob the bank and give you a third of the loot,” and Archie gives Willie the blueprints, Archie is an accessory before the fact and may be convicted of bank robbery, just the same as if he had joined with Willie in the actual robbery.

Accessories After the Fact. These wrongdoers are the mirror image of accessories before the fact except they knowingly help principals following the commission of crimes. As with accessories before the fact, the party must knowingly assist—that is, the person must be aware that they are assisting someone who has committed a crime. The primary difference between accessories before the fact and after the fact is the punishment. While provisions vary from one jurisdiction to another, commonly the maximum penalty for accessories after the fact is one-half the maximum sentence that a principal can receive.

Real-Life Illustration
Edman Spangler instructed a theater employee to hold a saddled horse in the alley behind Ford’s Theater in Washington, DC, on April 14, 1865. The horse was intended to provide a getaway for John Wilkes Booth after Booth assassinated President Abraham Lincoln inside the theater. When Booth took off, Spangler slapped another theater employee and reportedly said, “Don’t say which way he went.” Knowing what Booth had done, Dr. Samuel Mudd treated the injuries that Booth suffered while carrying out the assassination. Thomas Jones furthered Booth’s escape attempt by helping him to cross the Potomac River. John Hughes hid Booth on his farm until authorities found Booth and shot him dead. Spangler, Mudd, Jones, and Hughes were all accessories after the fact. (As it turned out, Spangler was also involved in the actual assassination and he was convicted as a coconspirator.)

Related term: conspiracy.

acquittal

An acquittal is a verdict of “not guilty” in a criminal trial.

actus reus

(Latin for a “guilty act.”) Virtually all crimes consist of physical actions accompanied by a mental state that a statute deems immoral or flawed (mens rea). Together, these Latin phrases form the indispensable touchstones of criminal law.

Voluntary Acts. A physical action must be voluntary to qualify as an actus reus. So, for example, if a person experiences a sudden and unanticipated epileptic seizure and injures someone else, the action is not a crime as it was involuntary. Similarly, people who have evil thoughts or who develop wicked plans may be immoral. But the criminal justice system punishes people for their deeds, not for their thoughts or beliefs. For example, someone who simply creates an electronic computer file that outlines a plan to rob a bank might not have committed a crime on account of not having taken an action in furtherance of his plan.

Statutes creating “status offenses” are unconstitutional because they attempt to punish people for their conditions rather than for their actions. For example, statutes purporting to punish a person for being a vagrant or a drug addict are invalid. (Robinson v. California, U.S. Sup. Ct. (1962).)

Don’t Just Do Something, Sit There. Most of us celebrate heroes who try to save others from physical harm, especially if they risk their own life in the process. But the criminal justice system does not require heroism or even lifting a finger to help a person in distress. As a general rule (see the exceptions, below), people have no legal duty to prevent harm, even if they can do so at no risk to their own safety.

Real-Life Illustration
In 1964, Kitty Genovese was beaten to death on a street in Queens, New York. None of the at least 38 neighbors who heard her screaming for help came to her aid. The neighbors’ failure to act did not constitute a crime.

Don’t Just Sit There, Do Something. The general criminal law rule that people have no legal duty to prevent harm is subject to a limited number of exceptions. Individuals may be guilty of a crime if they fail to try to protect victims with whom they have a special and trusted relationship—for example, a parent’s neglect of a child would constitute child abuse. In a very few states, Good Samaritan laws also make it a crime to refuse to come to the aid of people in physical distress.

EXAMPLE: In the 1998 finale of the hugely popular Seinfeld TV comedy series, the show’s eccentric four main characters were convicted of violating a Good Samaritan law for standing around and laughing instead of giving aid while an overweight man was robbed at gunpoint. Each character was sentenced to a year in jail. In the real world, violation of a state’s Good Samaritan law is at most punishable by no more than a small fine.

Related terms: attempts; disorderly conduct; mens rea.

affirmative defense

An affirmative defense is a defense in which the offender does not deny that the activity occurred, but instead offers justification or mitigating factors that excuse or limit liability. Some examples are self-defense, insanity, and entrapment.

Related terms: self-defense; burdens of proof; failure of proof; entrapment; insanity.

aggravated assault

See assault and battery; mayhem.

aggravated offense

A crime committed under circumstances that elevate the seriousness of a conviction is referred to as an aggravated offense. Common aggravating circumstances include the use of a weapon and the infliction of injuries. Example: An assault that causes a victim to suffer a concussion can elevate misdemeanor simple assault to aggravated assault, a felony.

algorithms

Algorithms are formulas that serve as the basis of computer programs that predict criminal activity by individuals and in communities. The designers of the programs base the formulas on statistical data relating to criminal activity. These programs have become increasingly visible throughout the criminal justice process. For example, judges may consider a program’s prediction about a suspect’s dangerousness when deciding on the amount of appropriate bail or whether bail is appropriate. And police departments consider a program’s prediction about the amount and seriousness of criminal activity in different areas of a community when deciding how to deploy limited police resources.

One continuing criticism of computer-based criminal justice is that algorithms are “proprietary”—that is, they are the confidential property of the private companies that produce and market the computer programs in which the algorithms are embedded. As a result, judges and lawyers have few means of assessing the validity of the algorithms’ predictions. A second criticism is that algorithms perpetuate pre-existing biases against communities and ethnic minorities.

Related term: Lexipol.

alibi

An alibi is an affirmative defense that a defendant was somewhere other than the scene of a charged crime when the crime occurred. Despite the negative connotations often provided by films and TV shows, an alibi is a perfectly respectable legal defense.

Defendants Needn’t Testify. Defendants may offer an alibi defense without giving up their constitutional right to remain silent. Any witness who can place the defendant at a location other than the scene of a charged crime can provide an alibi. For example, a defendant may remain silent and call a witness to testify and provide documentation that the defendant was at a dental appointment when a crime took place a mile away.

Burden of Proof. Defendants who offer alibi defenses do not take on the burden of proving to a judge or jury that the alibi is accurate. The burden of proving a defendant guilty beyond a reasonable doubt remains at all times on the prosecution. Of course, a judge or jury can consider the credibility of alibi evidence when deciding whether the prosecution has met its burden.

Pretrial Notice. In most states, laws called “discovery rules” require defendants to advise prosecutors prior to trial of alibi evidence that they intend to rely on. The rule gives prosecutors time to investigate an alibi and prepare to undermine it.

EXAMPLE: Blaine is charged with a sexual assault crime. He plans to offer an alibi defense that he was at a local theater watching an X-Men film at the time the assault occurred. Blaine has to notify the prosecution of this planned defense in advance of trial. The prosecution then has time to investigate the alibi. If the investigation turns up evidence that the theater was showing only Toy Story 3 on the date of the assault, the prosecutor can undermine Blaine’s alibi by calling the theater’s manager as a witness.

Related terms: burdens of proof; failure of proof.

allocution, right of

Convicted defendants generally have a “right of allocution”: a right to talk to a judge in court before the judge pronounces the sentence. No rules of evidence govern a defendant’s allocution. It may take the form of an apology to the victims and/or their family members, who may be present in court: “Your Honor, I want to apologize for the injuries and suffering that I caused.” Or an allocution may consist of an insistence on innocence, such as: “I know that the jury convicted me, but I swear I’m innocent.” Allocutions are unlikely to influence judges’ sentencing decisions.

Real-Life Illustration
Worst allocution ever? In a case that drew nationwide attention, Richard Allen Davis was convicted in 1996 of kidnapping and murdering 12-year-old Polly Klaas. Just before the judge sentenced him to death, Davis told the judge and the packed courtroom that moments before he killed Polly, she said that her father had sexually molested her. Davis’s words heaped more anguish on Polly’s distraught family members and provoked the judge’s wrath. As of this edition, Davis remains on California’s Death Row.

animal cruelty

Animal cruelty laws punish offenders who abuse, mistreat, or neglect animals. These laws respect the value of animals—as workers, food and fiber sources, and experimental subjects, and for companionship and entertainment. Animal cruelty laws also seek to protect the public by recognizing that offenders who mistreat animals may also harm individuals. In some cases, animal cruelty concerns are related to public health and safety. Animal cruelty can be punishable as either a misdemeanor or a felony.

Real-Life Illustration
Employees of the Westland and Hallmark meat packing plants pleaded guilty in 2007 to violating animal cruelty laws. Undercover videographers had secretly recorded them abusing “downer cows” in order to force them into the slaughter area. The angry public reaction to the images was partly fueled by a concern that since downer cows were more likely to carry diseases, using them for food endangered human health.

Anticruelty rules also apply when animals are presented as entertainment. For example, circus trainers can use only reasonable physical force to prepare animals to perform tricks. Trainers violate animal cruelty laws when they use excessive, noncustomary force, or keep animals in squalid and unsanitary pens.

Historical Antecedents. British philosopher and barrister Jeremy Bentham was an early proponent of legal protection for animals. In An Introduction to the Principles of Morals and Legislation (1771), Bentham famously wrote, “The question is not, ‘Can they reason?’ or ‘Can they talk?’ but ‘Can they suffer?’” In the early 1800s, a Vermont law provided for imprisonment for up to five years for anyone who killed, wounded, maimed, or poisoned another person’s commercially valuable farm animal; the law did not apply to pets. A Maine statute of 1821 was the first to criminalize abuse of an owner’s own commercially valuable animal. An 1866 New York statute was the first to extend animal cruelty laws to the abuse of any kind of animal.

Abuse. Animal cruelty laws in all states forbid the intentional abuse and mistreatment of animals. Animal cruelty laws may specify a variety of actions that constitute abuse. These laws may also simply prohibit abuse and leave it to the judicial system to determine the legality of actions on a case-by-case basis. For example, it is not animal cruelty for a vet to commit euthanasia on an elderly, sick cat, but it would be animal cruelty to poison a dog whose barking bothered you.

Real-Life Illustration
Professional football star Michael Vick pleaded guilty in 2007 to a federal felony conspiracy charge for operating an interstate dog fighting business known as Bad Newz Kennels. Vick served almost two years in prison, then resumed his football career.

Neglect. Neglect of an animal, whether intentional or negligent, is another form of cruelty that all states prohibit. For example, a pet owner with ill, flea-ridden, and starving pets would be guilty of animal neglect, as would a dog owner who leaves his pet locked in his car, dehydrated and near death.

Endangered Species. Laws in many states seek to protect endangered species around the world by forbidding their importation or use for commercial purposes. The laws typically extend to body parts as well as to the animals themselves.

Real-Life Illustration
In 2010, the owners of The Hump restaurant in Santa Monica, California, pleaded guilty to violating the federal endangered species act for importing and serving the meat of an endangered species of whale.

Related terms: mens rea; sentencing (punishment options).

appeals

The typical hierarchy of state courts consists of trial courts and their appellate divisions; intermediate appellate courts made up of three-judge panels; and highest (“supreme”) courts consisting of seven or nine justices. The same hierarchy exists in state and federal courts, with the highest federal court being the United States Supreme Court. Convicted defendants have a right to review by an intermediate appellate court, provided that they comply with statutory time limits for requesting an appeal. But some appeals—in misdemeanor and infraction cases, for example—may go to the appellate division of a superior court. Defendants file written “briefs” (which often are far from brief) identifying claimed legal errors that took place during a trial and arguing why those errors warrant reversal of a conviction or at least reduction of a sentence. After the government submits a responding brief, an appellate court may hear oral argument from both sides. Weeks and sometimes months later, the appellate court issues a written decision upholding or reversing a conviction.

If a state’s intermediate appellate court upholds a conviction, a defendant can appeal to the state’s highest court and then to the U.S. Supreme Court. However, the higher appellate courts (the “supreme” courts) have discretionary jurisdiction, which means that they can decide not to review a case.

Finality of Acquittals. The government cannot appeal verdicts of acquittal, whether the trial was to a judge or jury. However, if a trial judge rules that a convicted defendant is entitled to a new trial, the government can appeal the new trial order.

EXAMPLE: A jury convicts Sampson of murder. The judge grants Sampson’s motion for a new trial after deciding that a jury instruction was legally improper. The government can appeal the new trial order. If the appellate court decides that the jury instruction was proper, the appellate court can set aside the new trial order and reinstate the conviction.

Raise It or Lose It. Appellate courts often review only legal claims that defendants make at trial. If defendants neglect to make legal claims at trial, they usually waive those claims. For example, if a defendant asks an appellate court to reverse a conviction because of the prosecutor’s unfair argument, the court will consider the point only if the defendant objected to the argument during the trial.

It’s a Fact. Appellate courts limit review to claimed legal errors. They do not reweigh trial evidence or substitute their factual beliefs for those of trial judges and jurors.

EXAMPLE: Des is convicted of joyriding based largely on Maggie’s testimony. Des’s lawyer offered evidence that Maggie had previously been convicted of perjury and is visually impaired. Des asks the appellate court to reverse the conviction on the ground that the jury had no business believing Maggie’s testimony. Because the claim asks the judges to reevaluate the evidence, the appellate court will not consider this claim.

No Harm, No Foul. Not every error at trial merits reversal. Defendants are entitled to a fair trial, not an error-free trial. (Lutwak v. U.S., U.S. Sup. Ct. (1953).) Appellate courts do not generally reverse convictions unless a legal error was likely to have contributed to a guilty verdict. Errors that do not contribute to a guilty verdict are considered “harmless.” However, errors involving constitutional rights require reversal, normally unless appellate courts determine that they were harmless beyond a reasonable doubt.

EXAMPLE: Arker is convicted of animal cruelty. The appellate court decides that the trial judge erroneously forbade Arker from representing himself. The right of self-representation is so fundamental—even if representing oneself is normally a bad idea—that this erroneous denial results in automatic reversal of the conviction.

Sentencing. Even when upholding convictions, appellate courts can review sentences. For example, an appellate court might uphold a conviction but reduce the sentence by 30 days if the trial judge neglected to credit the defendant with the month that the defendant spent in jail prior to trial.

Guilty Pleas. Defendants who plead guilty can appeal. But the grounds for appeal are generally very limited. Often, the prosecution actually requires, as part of a plea deal, that the defendant “waive” some or all rights to appeal. For example, unless a plea agreement reserves a defendant’s right to do so, a defendant may not be able to plead guilty and then claim on appeal that a police search was invalid. Defendants can, however, plead guilty and then seek to set the conviction aside on appeal on the ground that the criminal law that they violated is unconstitutional. (Class v. United States, U.S. Sup. Ct. (2018).) And defendants who plead guilty may be able to challenge the conviction on appeal if their attorneys failed to advise them that a conviction can result in deportation. (Padilla v. Kentucky, U.S. Sup. Ct. (2010).) Other kinds of ineffective legal representation can also be grounds for challenging a conviction, even when the defendant has pleaded guilty.

Related terms: harmless error; Confrontation Clause; defense counsel (defense attorney); hearsay; motion; plea bargaining; sentencing (punishment options).

arraignment

Arraignments are generally short, routine courtroom hearings in which judges formally advise defendants of the criminal charges they face and defendants enter a plea to those charges (typically, “guilty” or “not guilty”). Judges may also set bail at an arraignment, or consider a prosecutor’s or defendant’s request to revise the amount of previously set bail. At an arraignment a prosecutor may also provide a defendant’s lawyer with a copy of the written document outlining the charges, which might be called an “information,” an “indictment,” or a “complaint” according to the custom of a jurisdiction and the process leading to the issuance of charges. A prosecutor may also deliver a copy of the police report to the defense at arraignment. Defendants have a right to be represented by counsel at arraignment, either privately retained or court-appointed.

Prearraignment Courtroom Hearings. For many defendants, arraignment is their first appearance in a courtroom following arrest. But before an arraignment takes place, defendants who remain in jail for as long as 48 hours following arrest may first be taken to court for a bail hearing. Magistrates rather than judges often preside over bail hearings. Defendants who are arrested without a warrant may also be taken to court prior to arraignment for a “Gerstein hearing,” so-called because its origin is in the 1975 U.S. Supreme Court case of Gerstein v. Pugh, in which the Supreme Court held that a defendant cannot be detained prior to trial, unless a court makes a timely determination of probable cause (concluding it’s more likely than not that the defendant committed the crime). In a Gerstein hearing, a judge or magistrate determines whether probable cause for an arrest existed.

Courtroom or Train Station? Trial courtrooms are typically sedate, often inhabited only by courtroom personnel, the parties to a case, their lawyers, and a witness. Arraignment courts by contrast can be loud and hectic, not unlike a busy train station. Many cases may be scheduled for arraignment on the same day and the judge must work through all of them. Parties and lawyers filter in and out of the courtroom, often conferring on strategy or scheduling matters. Defendants who bailed out of jail prior to arraignment enter the courtroom through a public entrance, while “custodies” have their own entrance that connects a lockup to the courtroom.

The Next Steps. While the primary business of arraignments is to charge defendants with crimes and record their pleas, arraignments are often a time when prosecutors and defense lawyers establish a roadmap for the proceedings to come. For example they may:

  • arrange for the defendant to examine prosecution evidence and if appropriate have it tested by a forensic expert selected by the defense
  • set a court date for a preliminary hearing if one will take place, or
  • set a date for trial if no preliminary hearing will take place.

No Double Jeopardy. Judges occasionally dismiss charges at an arraignment. In the unusual situations where this occurs, typically the reason has nothing to do with a defendant’s guilt or innocence. Instead, dismissal is based on a technical prosecution error. Dismissal of a case at arraignment is rarely a final victory for a defendant because at arraignment, a defendant is not “in jeopardy” for purposes of the Double Jeopardy clause—a constitutional provision that prohibits the government from prosecuting individuals for the same crime on more than one occasion. Typically the prosecution manages to get its ducks in order later and refile the charges.

EXAMPLE: Ed is in custody after having been arrested for assault. He bails out, and two weeks later appears in court to be arraigned. When Ed’s case is called, the prosecutor announces that she is not prepared to go forward with the arraignment because the charging document was prepared incorrectly. In response to the prosecutor’s request for a week’s continuance (postponement) of the arraignment so that Ed can be properly charged with assault, Ed objects and asks for the case to be dismissed. Even if the judge grants Ed’s request, Ed can still be prosecuted for assault. Ed can be rearrested on the same assault charge, and he might even have to pay the cost of a new bail bond. Ed should probably agree to the continuance.

Pleading Guilty at Arraignment. Though arraignments take place at or near the outset of criminal proceedings, plea bargaining often occurs at that time. Using an arraignment as a chance to conclude a case quickly with a plea bargain is often in everyone’s best interests. Quick disposition of cases with defendants pleading guilty or nolo contendere (a plea of “no contest”) eases the burden of heavy caseloads on judges and prosecutors, and allows them to focus on the most complex and serious cases. Quick disposition can also reduce anxiety for defendants and victims and help them move forward with their lives. Thus, prosecutorial offices may try to motivate defendants to plead guilty by establishing a policy of offering “good deals” at arraignment. Defendants and their attorneys who aren’t sure whether it makes sense to plead guilty so quickly may ask to continue an arraignment so that they can investigate the facts and consider options without losing the opportunity to plead guilty at arraignment.

Bail Challenges. Even if bail has been set at an earlier court hearing, arraignment affords defendants an additional opportunity to ask for lower bail. An argument for lowered bail is more likely to succeed if a defendant can support the request with information about changed circumstances that couldn’t have been presented earlier, such as a local employer’s willingness to give a defendant a job once the defendant is released on bail.

Related terms: plea bargaining; bail; double jeopardy; jurisdiction; no-contest (nolo contendere) plea; preliminary hearings.

arrests

As depicted in countless films and TV shows, the words, “You’re under arrest,” put an end to a suspect’s freedom and set in motion a panoply of procedures and rights, such as a police officer’s power to conduct a search and a suspect’s right to counsel.

Citations. Not all police officer detentions of individuals constitute arrests. Police officers often detain individuals temporarily, just long enough to issue citations. This practice is sometimes referred to as being “cited to court.” By signing citations, individuals remain free in exchange for their agreement to post bail or appear in court on or before a certain date. While police officers typically issue citations in lieu of making arrests for motor vehicle violations and minor misdemeanors, states can constitutionally authorize arrests in these situations. (Atwater v. Lago Vista, U.S. Sup. Ct. (2001).) A citation does not trigger the police officer’s ability to search the individual as if an arrest had occurred.

EXAMPLE: A police officer breaks up a minor scuffle outside a sports arena. The officer issues a citation to one of the combatants, and then proceeds to search the cited combatant. The search is illegal because the combatant was cited rather than arrested. Therefore, the officer cannot justify the search as “incident to an arrest.”

Arrest Warrants. At the time of American independence, a familiar occurrence (continued by some countries today) was the sudden disappearance of individuals whose only crime was to incur the wrath of a ruling elite. The Fourth Amendment was a response to this practice. The amendment requires police officers to have probable cause—that is, to reasonably believe that a person committed a crime—in order to make arrests and obtain warrants from judges. Arrest warrants are court orders that police officers obtain by furnishing judges with written statements signed under oath that provide sufficient information to believe that a suspect committed a crime. However, police officers can often make arrests without obtaining an arrest warrant. Whether police officers need to obtain warrants before arresting suspects depends on a variety of factors.

Misdemeanors. Police officers can arrest suspects for misdemeanor offenses without a warrant, but only if an offense is committed in an officer’s presence. Otherwise, police officers need to obtain warrants in order to arrest suspects for misdemeanors. If a police officer does not observe the misdemeanor but is informed about it, the officer can detain the suspect long enough to obtain personal contact information, ask for witness statements, and obtain a warrant by putting the statement before a judge. (A citizen’s arrest—discussed below—may also be an option for an officer who hasn’t witnessed a misdemeanor.)

Felonies. The general rule is that arrests are valid so long as arresting officers have probable cause to believe that a suspect committed a crime that constitutes a felony. In these circumstances, police officers do not need a warrant to make a valid arrest. However, unless exigent circumstances (emergencies) exist, police officers generally need to obtain an arrest warrant in order to arrest suspects in their homes. A home for this purpose can be a Beverly Hills mansion, a homeless dweller’s cardboard shack, or a temporary abode like a hotel room.

EXAMPLE: An informant tells Officer Parker that suburban housewife Nancy is dealing large quantities of illegal drugs out of her house. The informant signs an affidavit under oath providing a firsthand account of the illegal operations, including two purchases of illegal drugs. Officer Parker also prepares an affidavit describing other occasions on which the informant’s information has been accurate, as well as a stakeout during which the officer personally observed numerous individuals going in and out of Nancy’s house in a way that is consistent with purchasing drugs. Officer Parker submits the affidavits to a judge and obtains a warrant authorizing Parker to arrest Nancy in her home.

Knock-Knock, Who’s There? In police dramas, officers typically make house arrests by breaking down front doors with guns drawn. Luckily for all concerned, actual arrests are ordinarily far tamer. “Knock and announce” laws aim to reduce the chance of violence by generally requiring police officers to knock on a suspect’s door and announce that they are there to make an arrest before entering a dwelling. They have to allow a suspect a reasonable time to open the door before taking more aggressive action. But exigent circumstances can eliminate this polite requirement.

EXAMPLE: In the earlier scenario, Officer Parker and others knock on Nancy’s front door and order her to submit to arrest. They hear footsteps, smashing sounds, and two or three voices yelling loudly. The circumstances suggest danger to the officers and destruction of evidence. The exigent circumstances justify the officers’ immediate entry of the residence with guns drawn.

Citizens’ Arrests. Citizens (essentially everyone other than police officers) typically have the power to arrest suspects who commit crimes in their presence. Citizens who make arrests normally notify the police, who complete the arrest process. So long as they have probable cause, police officers are generally immune from civil lawsuits if they arrest felony suspects who turn out to be innocent. Citizens have to be more careful. If they arrest a person who turns out to be innocent, laws usually do not protect them from civil lawsuits. For example, if a security guard detains a suspect at a store and then calls the police and requests that the suspect be arrested, the suspect can sue the security guard if the arrest is a mistake.

Use of Force. To effectuate an arrest (including preventing a suspect’s escape), police officers can use as much force as they reasonably believe is necessary. Officers can use deadly force if a suspect threatens an officer with death or grave bodily harm. Officers can also use deadly force if an escaping suspect poses a significant threat of death or serious physical injury to the officer or to others in the community. (Tennessee v. Garner, U.S. Sup. Ct. (1985).) Police officers who use more force than is reasonably necessary to effectuate an arrest may themselves be prosecuted as well as held civilly liable for damages for resulting injuries to a suspect. However, the U.S. Supreme Court has acknowledged the difficulty police officers can face in the heat of the moment, stating that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain and rapidly evolving—about the amount of force that is necessary in a particular situation.” (Graham v. Connor, U.S. Sup. Ct. (1989).)

Real-Life Illustration
In August of 2014, Caucasian police officer Darren Wilson shot and killed African American teenager Michael Brown in Ferguson, Missouri. Wilson pulled up his police cruiser next to Brown and a companion to warn them not to walk in the street or to investigate their involvement in a robbery that had taken place moments before, or both. According to Officer Wilson, Brown reached through the car window and tried to grab Wilson’s gun, a struggle ensued, and Wilson’s gun was fired. Brown and his companion then ran away with Wilson in pursuit. Brown stopped, turned around, and moved toward Wilson. Wilson then fired numerous shots, killing the unarmed Brown. Concluding that Wilson’s use of deadly force was a reasonable act of self-defense, the county grand jury decided not to indict Wilson and the U.S. Department of Justice decided not to pursue charges that Wilson had violated Brown’s civil rights. Brown’s death ignited weeks of demonstrations—both peaceful and violent—in Ferguson and other parts of the country, and became Exhibit A in a national debate over a series of killings by (mostly) white police officers of (mostly) black suspects. Many incidents in the months preceding and following Brown’s death gave rise to protests against real and/or perceived police brutality and hostility toward African Americans. These include the following events:

  • Tulsa reserve officer Robert Bates shot and killed Eric Harris. Bates later explained that he meant to fire his Taser (stun gun), not his pistol.
  • A Cleveland police officer shot and killed 12-year-old Tamir Rice, who brandished a weapon that turned out to be a BB gun.
  • San Jose police officers shot and killed Diana Showman, a 19-year-old mentally ill woman who brandished a power drill and refused officers’ commands to put it down.      
  • Rookie New York City police officer Peter Liang shot and killed Akai Gurley, who was on a landing in a dark stairwell in a building in a housing project known as Pink Houses. The police conceded that Gurley had done nothing wrong, and Officer Liang was charged with manslaughter.
  • A New York City police officer choked Eric Garner to death on a sidewalk. The encounter started when the police stopped Garner for selling untaxed cigarettes.
  • A Los Angeles police officer shot and killed Ezell Ford, a mentally ill man they had confronted on the street.
  • North Charleston, South Carolina, police officer Michael Slager shot and killed Walter Scott following a traffic stop. A passerby recorded the events as Scott fled from Slager and was shot in the back numerous times. Slager claimed that Scott had reached for Slager’s stun gun; the video recording showed that as Scott lay dying, Slager returned to his police car, picked up his stun gun, and deposited it near Scott’s body. The video was posted online and viewed by millions of people. Slager was charged with murder.
  • A Los Angeles police officer shot and killed a man posing as Charly Leundeu Keunang (AKA Charley Robinet). Keunang was a Cameroon national who had entered the U.S. illegally about 15 years earlier using a stolen French passport. Keunang was living on skid row and was shot during an altercation with a number of police officers. A bystander recorded a portion of the altercation and posted the video on his Facebook page, where it was seen by millions of people.
  • Baltimore police arrested 25-year-old Freddie Gray for possession of a switchblade knife. The police failed to buckle Gray’s seatbelt, and within an hour of his arrest Gray had fallen into a coma, the result of a nearly completely severed spinal cord and other injuries. Gray died of his injuries. Arson, violence, and looting started spreading through downtown Baltimore moments after Gray’s funeral ended. Six officers were charged with crimes ranging from second degree murder to assault.   

Related terms: hierarchy of criminal offenses; probable cause; search and seizure; warrantless searches; sentencing (punishment options).

arson

Arson consists of setting fire to someone else’s property. In most arson situations, the property set on fire consists of a building, which might be a residence or a commercial structure. However, a wrongdoer who ignites a farmer’s haystack or forest land that belongs to the public also commits arson. Statutes typically classify arson as a felony rather than a misdemeanor, because aside from the value of the property that is burned, fires always have the potential to cause injuries or death and to spread to other properties.

Burning One’s Own Property. In some circumstances, setting fire to one’s own property can constitute arson—the typical example being a property owner seeking to obtain money under a fire insurance policy. In such cases, the property owner may be guilty of arson and insurance fraud.

Felony Murder Rule. Arson is an inherently dangerous crime. An arsonist who starts a fire that causes a person’s death—even if the death was accidental—can be found guilty of murder. This is because of a rule (the “felony murder rule”) that makes a perpetrator guilty of murder if someone is killed during the commission of a dangerous felony. (Another potential charge is second degree murder—see “homicide.”)

EXAMPLE: Seeking to protest government land-use policies that she disagrees with, Meg sets fire to grassland in a national park. The fire spreads far more than Meg anticipated and kills a homeless man who was sleeping several hundred yards away from where Meg started the fire. Though Meg was unaware of the man’s presence and she certainly had no intention of killing him, Meg is guilty of murder because the man’s death was the result of the inherently dangerous felony that she committed.

Reckless Arson. Although arson charges are typically based on intentionally set fires, reckless behavior that leads to the destruction of property by fire can also constitute arson. For example, campers who disregard signs prohibiting open fires by starting an open fire in vulnerable park land may be guilty of arson.

Arson or Accident? Even if an intentionally set fire destroys another’s property, the person who set the fire might not be an arsonist if the destruction was accidental. For example, according to myth, the Great Chicago Fire of 1871 started when Mrs. O’Leary’s cow kicked over a lantern in a shed. Someone wouldn’t be guilty of arson for the simple act of lighting a lantern and putting it in a safe place—the direct, natural, and likely result of that act alone wouldn’t be causing a fire.

A problem that frequently arises is that a quick and easy determination of whether a fire is due to accident or arson is not always possible. If fire and police officials are uncertain about a fire’s origin they may regard it as a “suspicious fire” and investigate. Whether arson charges result and can be proven in court may then depend largely on the work of forensic arson experts. Unfortunately, arson experts are no less fallible than other types of forensic experts.

Real-Life Illustration
In 2003 an Ohio woman, Rose Roseborough, was convicted of murder and sentenced to life in prison based largely on the testimony of an arson expert that she had intentionally set the fire that resulted in the deaths of her 11-month-old twin daughters. The expert based his conclusion on evidence that Roseborough’s face was covered with “large-particle soot,” which the expert testified is produced only in the very early stages of a fire. The expert’s finding contradicted Roseborough’s testimony that she ran into the house to try to rescue her daughters only after the fire was well underway. However, at a court hearing that was held some years after Roseborough began serving her sentence, new defense attorneys presented an expert who convinced the judge that the state’s expert testimony had been false, and that large-particle soot often forms at the end stages of a fire. In 2009, the judge set aside the conviction and ordered a new trial.

In the United States, fire officials regard many thousands of fires each year as suspicious and requiring further investigation by a forensic arson expert.

Vigilante Justice and the Use of Arson. Arson is sometimes a weapon of choice for those who resort to vigilante justice, where citizens punish others without resorting to the legal system. A classic example of vigilante arson can be seen in the 1934 film, Fury. In that film, a stranger in a small town is mistaken for a kidnapper and put in jail. An angry mob burns the jail to the ground. The movie’s courageous prosecutor charges about 20 of the town’s leading citizens with murder. Made during the Great Depression, the film warned about the dangers of mob rule. (By the way, the film also includes a brilliant courtroom ruse, and an early example of newsreel footage used as evidence in a courtroom.)

Related terms: felony murder rule; fraud; homicide; vigilante.

artificial intelligence

Artificial intelligence (or “AI,” a term that refers generally to machine-produced data) is increasingly a part of the criminal justice system. For example, algorithms (formulas) that take into account vast quantities of data enable computers to produce “risk assessments” that predict the likelihood that an individual will in the future commit a serious crime. Judges often take account of these risk assessments when making bail decisions, and parole agencies commonly consider risk assessments when deciding whether to parole a prisoner. While computers are not about to replace judges, jurors, and lawyers, the role of AI in the future is likely to increase. 

assault and battery

Assault consists of intentionally causing another person to fear being struck. The striking itself constitutes battery. Historically, assault and battery were separate crimes, but many modern statutes do not bother to distinguish between the two crimes, as evidenced by the fact that the phrase “assault and battery” has become as common as “salt and pepper.” These statutes often refer to crimes of actual physical violence simply as assaults.

Traditionally, the definition of assault recognizes that placing another in fear of imminent bodily harm is itself an act deserving of punishment, whether or not a victim is physically harmed. If the victim is not placed in imminent fear of injury, there is no assault.

EXAMPLE: Snider is walking down a city street carrying a golf club, a short distance behind Mantle. As Snider gets closer to Mantle, he lifts up the club and waves it menacingly in Mantle’s direction. Mantle, however, is unaware of Snider’s presence. Snider has not committed an assault because Mantle was unaware of Snider’s presence and activity and was not afraid of Snider striking him. If, on the other hand, Snider strikes Mantle with the club, Snider would be punished only for the battery, the more serious offense.

Simple and Aggravated Assault. The criminal laws of many states classify assaults as either simple or aggravated, according to the gravity of the harm that occurs or is likely to occur if the assaulter follows through and harms the victim. Aggravated assault is a felony that may occur when an assault is committed with a weapon or with the intent to perpetrate a more serious crime. An assault may also be defined as aggravated if it occurs in the course of a relationship that the legal system regards as worthy of special protection—for example, a husband and wife, cohabitants of a home, or a caregiver and elderly patient. In the absence of factors such as these, the crime is simple assault, a misdemeanor.

Degrees of Assault. As an alternative to classifying assaults as either simple or aggravated, some states recognize the different levels of harm that assaults can cause by classifying them as first (most serious), second, or third degree assaults.

Sticks and Stones. Words alone don’t give rise to assault charges. The general policy against punishing people for “naked threats” recognizes that people often make threats in the heat of the moment that they will never carry out—for example, a bar patron telling another, “I’d like to knock your block off.” However, threatening to commit a crime that would seriously harm someone is its own offense, often classified as a “terrorist threat.” An example is one person telling another, “I’m going to shoot you.”

Related terms: assault with a deadly weapon; domestic violence; terrorist threats (criminal threats).

assault with a deadly weapon

An assault with a deadly weapon occurs when an attacker accomplishes a physical attack with a dangerous physical object. Since the use of a dangerous object creates a risk that a victim will suffer severe physical injury or death, states classify assault with a deadly weapon as a felony. (Judges and lawyers often refer to the crime as “ADW.”) “Deadly weapon” generally refers to a wide range of objects that can inflict mortal or great bodily harm—for example a car or a golf club.

“You Missed Me, You Missed Me!” The crime of assault, whether or not accomplished with the use of a deadly weapon, does not require that a victim suffer actual injury. Attackers commit an assault when they intentionally lead a victim to reasonably fear immediate physical harm. The use of a dangerous object rather than the infliction of actual harm elevates simple assault to assault with a deadly weapon.

Related term: assault and battery.

attempts

Attempts consist of intentional (but unsuccessful) efforts to commit an act that constitutes a crime. People are guilty of attempt only if they take concrete steps toward committing a crime. Thinking about committing a crime, or even planning to commit a crime, does not constitute an attempt.

EXAMPLE: Angry that too many urban dwellers are using a public bridge to access a remote wilderness area, Sam plans to blow up the bridge. Sam visits the website of the Acme Explosives Co. for information on how to build a bomb. At this point Sam might not be guilty of attempting to destroy public property on the theory that his actions do not amount to substantial concrete steps aimed at accomplishing his plan. However, if Sam assembles the explosives needed to build a bomb and makes a drawing of the bridge that indicates the best location for placement of the bomb, a judge or jury may legitimately convict Sam of attempting to destroy public property, because he took substantial concrete steps toward trying to accomplish his goal.

Justifying Punishment for Attempts. Convictions for attempting to commit a crime typically involve situations in which no actual harm ensues. For example, if we analogize to the Roadrunner cartoons, Wile E. Coyote may be convicted of attempted murder for trying to kill Roadrunner, even if Roadrunner suffered no harm and Roadrunner never knew that Wile E. was trying to blow him up. Nevertheless, it is fair to punish Wile E. because he acted with criminal mens rea (state of mind). Another justification for punishment is that Wile E. may act in accordance with the familiar saying, “If at first you don’t succeed, try, try again.” Thus, criminalizing attempts protects would-be victims against future harms.

To Dream the Impossible Dream ( … and to Attempt the Impossible Crime). A person may attempt to commit a crime that cannot possibly be committed. A crime is said to be legally impossible when the acts, regardless of the harm an actor intended to cause, don’t constitute a crime. A crime is factually impossible when a person tries to commit a crime but cannot complete it because of some unknown circumstance. Many states’ laws reject this distinction and provide that neither kind of “impossibility” is a defense.

EXAMPLE: Believing that too many homeless people are destroying the property values in his neighborhood, Joe shoots a man lying in a doorway and covered with blankets. What Joe did not know was that the man had suffered a fatal heart attack and died earlier. Since dead people cannot be homicide victims, Joe cannot be convicted of killing the vagrant. But, in most jurisdictions he can be convicted of attempted murder even though it was legally impossible to murder the already-dead homeless man. If the man lying in the doorway had been alive at the time Joe pulled the trigger, but the gun hadn’t fired because Joe forgot to load it, murder would have been factually impossible—you can’t shoot someone to death with an unloaded gun. Nevertheless, Joe would have been guilty of attempted murder in this situation too, because he tried to kill the man.

Abandonment. People can sometimes escape punishment for attempt by voluntarily and completely abandoning planned crimes. But if they have already caused too much harm or are coerced into abandonment, they remain guilty of attempt.

EXAMPLE: Fred breaks into a college dorm room and shoves his ex-girlfriend, Ethel, onto a sofa with the intent to rape her. When Ethel cries out, Fred apologizes repeatedly and walks away from her. Fred has taken substantial concrete steps toward committing a rape. But if a judge or jury decides that Fred voluntary abandoned his planned course of action without substantially harming Ethel, Fred might be convicted of assault and battery rather than attempted rape.

If, however, Fred shoves Ethel onto the sofa, Ethel cries out, Fred strikes her in the face repeatedly, and then Fred runs away when he hears people running toward the door, Fred is probably guilty of attempted rape because he inflicted serious harm on Ethel before escaping. A second reason he may be guilty is that he did not voluntarily abandon his plan to rape Ethel. Instead, Fred fled to avoid capture.

Do the Crime, Maybe Do Half the Time. The punishment for attempts varies from one state to another and according to the crime that a person is convicted of attempting to commit. Some states prescribe the same punishment for attempts as for completed crimes, on the theory that assailants should be punished for the harms they intend to cause. Other states offer leniency for all attempt convictions, often providing for a maximum penalty for an attempt that is half the penalty for the completed crime.

Related terms: defenses; impossibility; mens rea; sentencing (punish­ment options); conspiracy.

attorney-client privilege

Attorney-client privilege refers to the right of a client to prevent the disclosure or seizure of certain information provided to an attorney.

Background. The criminal justice system seeks to encourage clients to be open and honest with their lawyers. Thus, laws in all jurisdictions create a privilege for private communications between lawyers and clients. The privilege extends to all forms of communications, including oral, written, and electronic. Lawyers cannot disclose the contents of privileged communications without a client’s consent.

EXAMPLE: Bernie tells his lawyer in private, “They’ve got me. I did sucker all those people into investing in my phony scheme.” At Bernie’s criminal fraud trial, the prosecutor cannot call the lawyer as a witness to testify to Bernie’s admission of guilt. If Bernie’s lawyer responds to Bernie’s admission of guilt by telling Bernie, “The more money you can return to the defrauded investors, the lighter your sentence will be,” that statement is also privileged because the privilege “works both ways.”

Privacy Practice. The privilege exists only if circumstances indicate that a client reasonably intended a communication to be private. So, if in the previous example involving Bernie and his attorney, the statements are made in a crowded restaurant and can be overheard, the client gives up the right to claim that the statement was confidential. A prosecutor could call the waiter and the patrons as witnesses to testify to the client’s admission of guilt. This “public” exception does not apply to surreptitious listening—for example, someone using listening devices or placing an ear to a closed door. In that situation the eavesdropper cannot testify as to what the client or attorney said.

Going Shopping. A client may consult with multiple lawyers before choosing one. In these circumstances, the attorney-client privilege typically extends to each lawyer. For instance, assume that a defendant charged with a DUI discusses the charges with lawyers Huey, Dewey, and Louie before deciding to be represented by Mickey. The attorney-client privilege probably extends to all of the conversations.

Take It From Me. Clients cannot hide evidence or contraband from the police by giving it to their lawyers.

EXAMPLE: In the film The Letter (1937), Leslie Crosbie is charged with murdering an intruder she claims was trying to attack her. Prior to the killing, Leslie had written an incriminating letter threatening to kill the victim if he broke off their love affair. Leslie asks the lawyer to destroy the letter. The lawyer has to turn the letter over to the police.

Although attorneys cannot hide or destroy evidence, they do not have to disclose information about the existence of evidence provided in confidence. For example, if a client privately reveals to his lawyer the location where he hid the loot and the gun that he used in a robbery, the communication is privileged and the lawyer cannot tell the police where the loot and gun are. However, the lawyer cannot take the items or change their location.

Future Crimes. A lawyer’s role is to protect a client’s legal rights and interests, not to help the client commit crimes. The attorney-client privilege does not extend to a client’s communications about future crimes.

EXAMPLE: In the film A Time to Kill (1996), Carl Lee Hailey tells his lawyer Jake Brigance of his intent to kill the two men who brutally raped Carl Lee’s daughter. The communication is not privileged. Jake has a duty to report Carl Lee’s threat to the police. At Carl Lee’s trial for murdering his daughter’s attackers, the prosecutor could call Jake as a witness to testify to Carl Lee’s statement.

Related terms: defense counsel (defense attorney); privileges.


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