Solution Manual for Criminal Law and Procedure 8th Edition by Daniel E Hall

Solution Manual for Criminal Law and Procedure 8th Edition by Daniel E Hall

SOLUTIONS

Solution Manual for Criminal Law and Procedure 8th Edition by Daniel E Hall

Solution Manual for Criminal Law and Procedure 8th Edition by Daniel E Hall Table of Contents

Purpose and Perspective of the Chapter ........................................................... 2 List of Student Downloads .......................................................................... 2 Chapter Objectives ...................................................................................... 2 Key Terms.................................................................................................. 2 Chapter Outline ........................................................................................... 3 Discussion Questions .................................................................................... 6 Review Questions ........................................................................................ 6 Problems & Critical Thinking Exercises ............................................................. 7 Additional Resources .................................................................................... 8 Cengage Video Resources........................................................................... 8 External Videos or Playlist .......................................................................... 8 Internet Resources .................................................................................... 8 Primary Sources ....................................................................................... 8 Cengage Audio Resources .......................................................................... 8 External Audio Resources ........................................................................... 8 List of Transcripts for Audio Assignments ...................................................... 8

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Purpose and Perspective of the Chapter

The purpose of this chapter is to give you an overview of the legal system of the United States and how it works. How separation of powers fits in, how the courts work, and comparison of civil and criminal law.

List of Student Downloads

Students should download the following items from the Student Companion Center to complete the activities and assignments related to this chapter:

Chapter Objectives

The following objectives are addressed in this chapter: • • • • •

Describe federalism and explain its impact on criminal law and procedure.

Describe the separation of powers with an emphasis on how it impacts criminal law and criminal procedure.

Describe the organization and role of courts in the American criminal justice system.

Compare and contrast civil and criminal law.

Describe the social contract and explain its relationship to criminal law.

Key Terms appellate courts Bill of Rights briefs certiorari civil liberties Commerce Clause compensatory damages concurrent jurisdiction contract cooperative federalism court of record courts of general jurisdiction courts of limited jurisdiction culpability damages de novo dual federalism federalism inferior courts

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intentional interpret judicial review jurisdiction negligence police power punitive damages record remand separation of powers social contract statute strict liability terrorism tort trial courts

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Federalism A. A system of political organization with two or more levels of government 1. Federalism was established in an attempt to prevent the centralization of power 2. Vertical division of power is with the national government resting above the state government 3. States are not necessarily subservient to national government 4. Often states have sovereign or independent power B. Dual sovereignty and dual federalism—the federal government and state government each possess authority over citizens, as well as particular policy areas, free from interference of the other government 1. Most authority is to rest with the states 2. The Tenth Amendment states ―The power not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or the people.‖ 3. Police Power is the authority of the states to regulate for the health and welfare of its citizens

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4. Some powers are exclusively federal, including coin money, punish counterfeiters, fix standards of weights and measures, establish a post office and post roads, promote the progress of science and useful arts by providing artists and scientists exclusive rights to their discoveries and writings, punish piracy and crimes on the high sea, declare war and raise armies, conduct diplomacy and foreign affairs, regulate interstate and foreign commerce 5. Supremacy clause declares federal law to be higher than state law 6. Federal and state criminal law are very much parallel C. Hierarchical federalism 1. National government is superior 2. Broad interpretation of the Commerce Clause and the Necessary and Proper Clause II. Separation of Powers—Three Branches of Federal Government A. Executive—President and president’s staff as well as administrative agencies the president oversees 1. Duty is to enforce the laws B. Legislative—Congress 1. Duty is to create laws known as statutes C. Judicial—Various federal courts of the land 1. Interpret laws through the administration of justice D. Checks and balances—prevents one branch from exclusively controlling most functions 1. Judicial review—the judicial branch may invalidate actions of the president or Congress that violate the U.S. Constitution III. Court System Structure A. Trial courts 1. A court that hears and determines a case 2. Where witnesses testify and evidence is presented 3. Where verdicts and sentences are announced B. Appellate courts 1. Review decisions and actions of trial courts 2. Do not conduct trials—no witnesses or evidence presented 3. It can reverse, affirm, or remand a case C. Inferior courts

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1. Limited responsibilities, such as probate or municipal courts 2. Typically are not a court of record (no recordings of the court) D. Supreme Court—highest court of the country 1. Appeals from circuit courts are taken to the Supreme Court 2. Appeals of federal issues from state supreme courts are heard here 3. Supreme Court only hears about 3% of cases appealed E. Duties and powers of the Judicial Branch 1. Administration of justice 2. Courts act as a conduit for dispute resolution through interpretation of legislation and state constitutions across the nation 3. While the judicial branch is independent from other branches, it does work with the executive branch when attempting to achieve criminal convictions 4. Judicial review 5. Higher court’s examination of lower court’s decision 6. Power to invalidate statutes (rarely used) 7. Power to declare any law, command, or other action void if it violates the U.S. Constitution 8. Landmark case of judicial review is Marbury v. Madison IV. Comparing Civil Law and Criminal Law A. Civil law includes: 1. Contract law, tort law, property law, intellectual property, and family law 2. Negligence is included 3. Strict liability torts 4. Damages are awarded in civil cases 5. In civil cases—the plaintiff sues the defendant B. In criminal cases—the government files criminal charges against the defendant. The goals of criminal law are: 1. Specific deterrence 2. Deter previous violators from offending again 3. ―Negative reward theory‖ 4. General deterrence 5. Deter all members of society from offending 6. Incapacitation

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7. Prevents offenders from reoffending through jail, prison, or execution 8. Rehabilitation—provide education, training, treatment, and counseling in order to alter an individual’s behavior to conform to societal norms 9. Retribution—society’s way of avenging a wrong V. Social Contract—Defines the Respective Rights and Responsibilities of the People and Government A. In all societies, personal behavior is limited in some capacity B. Total absence of government is anarchy; few believe freedom results from anarchy C. Balance must be struck between governmental authority and individual liberty D. The U.S. Constitution establishes a zone of freedom over which government is prohibited from regulating 1. These individual freedoms are known as civil liberties E. Every government is different regarding political participation by the people 1. As the population increases, so, too, must governmental intervention 2. Increased involvement makes it difficult to protect civil liberties contained in the Bill of Rights

Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Assign the students to come up with a scenario where there may be concurrent jurisdiction. Have them thoroughly explain how that works.

2. Have the students break into groups and discuss how having courts of limited jurisdiction can be a good thing. Have them give specific examples of the courts and why it is a good thing (example: traffic court, probate court, etc.).

Review Questions

1. The executive branch is responsible for enforcing the laws of the land. This involves the detection and investigation of alleged criminal law violations and the prosecution of those believed to have violated criminal prohibitions.

2. A court of record employs some means of keeping a verbatim transcript of its proceedings. It is common to use stenotype or an audio recording.

3. The following three definitions of jurisdiction appear in the text. i. the authority of a governmental unit over a policy area, person, or thing ii. the authority of a court to hear a case

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iii. the geographical location where a governmental unit resides A court of general jurisdiction has authority to hear a variety of cases, both civil and criminal. Most state trial courts have general jurisdiction. Courts with limited jurisdiction may hear only those cases with a specific subject matter.

4. Criminal law seeks to punish those who violate criminal law. Civil law seeks to compensate those injured by another. Criminal law uses punishment as a remedy, and civil law uses damages or other financial compensation. (Both, on occasion, use injunctive relief.)

5. Anyone may file a civil suit. However, this is not true of criminal actions, in which case initiation must be by a public official. The reason is because injuring another civilly is viewed as a private wrong, while injuring another in violation of criminal law is viewed as a public wrong. Of course, many actions can lead to both civil and criminal actions.

6. Compensatory damages consist of the amount of money required to compensate a victim for their actual loss. Punitive damages are the amounts exceeding actual damages. Although punitive damages appear criminal, they are often permitted in civil litigation.

7. This question requires students to render their personal positions. However, the issue that should be addressed is that punitive damages appear to have a criminal element in that they seek to punish, not compensate. You may want to discuss the possible due process question, to wit: If punitive damages are criminal in nature, why are defendants not permitted established criminal law protections (i.e., proof beyond a reasonable doubt)?

8. Responsibility; accountability; guilt. [return to top]

Problems & Critical Thinking Exercises

1. This question is intended to test students’ understanding of federalism and, more specifically, the way the Supremacy Clause operates in the United States’ federalist form of government. Obviously, the state statute fails. Roe v. Wade is a decision that is premised upon the Fourteenth Amendment of the U.S. Constitution; as such, states may not encroach upon this protected civil liberty.

2. This question differs from the previous question in that students must choose between state constitutional law and federal constitutional law. For the reasons stated in question 1, the state constitutional provision is invalid. This question also deals with state police power. States generally have the responsibility to regulate for the health and welfare of its citizens. The duty of the executive branch is to enforce and implement the laws created by Congress. How do these restrictions impede civil liberties? Are they justified?

3. This question is intended to test students’ understanding of federalism and, more specifically, the Tenth Amendment. If the regulation of county roads is one exclusively within state jurisdiction, the U.S. Congress may not declare that it possesses jurisdiction over that subject. Accordingly, the defense would be lack of jurisdiction by the federal government.

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4. The paradox is true because in a state of anarchy (the absence of government), there would be great instability and insecurity. Without government, people would be free to injure one another without fear of recourse, except for private retribution. In short, people would live in constant fear of one another. Government and government control have the effect of stabilizing a society. It is all of society gathering its combined force to prevent behavior deemed dangerous or improper. Each member of a society gives up a certain measure of freedom to behave as he or she may wish, but such freedom is given up in exchange for a safer, more predictable and stable society. Obviously, each society is different in what civil rights people relinquish to the government (which represents an increase in governmental power) and the rights people retain.

5. Discussion question: In terms of conclusion, basic notions of federalism, as defined by the Tenth Amendment, would support concurrent jurisdiction.

Therefore, the United States should render Terry first for trial with the understanding that he is to return to federal custody to complete his sentence before serving his state time, if there is any.

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

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Internet Resources •

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Primary Sources •

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Cengage Audio Resources •

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External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 10 Chapter Objectives .................................................................................... 10 Key Terms................................................................................................ 10 Chapter Outline ......................................................................................... 10 Discussion Questions .................................................................................. 12 Review Questions ...................................................................................... 13 Problems & Critical Thinking Exercises ........................................................... 14 Additional Resources .................................................................................. 14 Cengage Video Resources......................................................................... 14 External Videos or Playlist ........................................................................ 14 Internet Resources .................................................................................. 14 Primary Sources ..................................................................................... 15 Cengage Audio Resources ........................................................................ 15 External Audio Resources ......................................................................... 15 List of Transcripts for Audio Assignments .................................................... 15

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

Purpose and Perspective of the Chapter

The purpose of this chapter is to define criminal law and criminal procedure. The six types of punishment are discussed and how each of them differ. The many sources of criminal law are also discussed.

Chapter Objectives

The following objectives are addressed in this chapter: • • •

Define, compare, and contrast criminal law and criminal procedure Compare and contrast the seven common purposes of punishing offenders Define, describe, and apply the various sources of criminal law

Key Terms common law court rules criminal law criminal procedure deterrence due process Model Penal Code ordinance precedent regulation stare decisis

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Criminal Law and Criminal Procedure A. Criminal law: what constitutes a crime, what conduct is prohibited, what punishment may be imposed, what is the degree of intent, what defenses are available to the defendant B. Criminal procedure—what are the procedures used to bring criminals to justice 1. When can a person be arrested, when can police conduct a search, etc.

II. Punishment

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

A. Special deterrence—to deter individuals already convicted of crimes from committing any future crimes B. General deterrence—attempt to deter all members of society from engaging in criminal activity C. Incapacitation—prevents criminal conduct by restraining those who have committed crimes D. Rehabilitation—the criminal is subjected to vocational and educational programs to rehabilitate them E. Retribution—the idea that punishment through the criminal justice system is to avenge a wrong F. Restitution—compensating victims for their actual losses G. Restoration or restorative justice—focuses on healing victims and restoring the offender to the community III. Sources of Criminal Law A. Common law—the oldest form of law 1. It is judge-made law 2. Stare decisis—or let the decision stand is the idea that a judicial decision should prevail again under similar circumstances 3. Precedent—prior cases of the same court or a higher court must prevail in a subsequent case of similar facts 4. Many concepts of common law are still recognized 5. All states except Louisiana use common law B. Statutory law—written law decided by a governing agency (legislative branch) 1. There are some limits on the legislative branch on declaring certain behavior criminal 2. Most limitations are from the Constitution and the Bill of Rights C Ordinances—written laws of municipalities 1. Most are civil but can address certain criminal behavior (certain traffic violations, assault and battery, etc.)

D. Constitutional law—does not define criminal law, but has a significant impact on it 1. The Bill of Rights establishes many rules regarding proper criminal procedure

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

E. Administrative law—government units that administer the affairs of the government 1. Social welfare—put into effect government programs such as Department of Public Welfare 2. Regulatory—duty is to oversee and regulate something (example: state medical licensure board) 3. Administrative laws are known as regulations F. Court rules—govern civil and criminal process 1. Deal with procedural issues such as time limitations, service of process, etc.

2. Do not deal with substantive issues G. Model Penal Code—prepared jointly by the Commission on Uniform State Laws and the American Law Institute 1. It is a proposed criminal code designed to create consistency across the states IV. Ethical Considerations A. Obligations of defense attorneys are to zealously represent their clients and have professional values not personal B Always maintain client confidentiality C. There are the Model Rules of Professional Conduct and The Model Code of Professional Responsibility [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the class into groups. Have each group take one of the purposes for punishing offenders and discuss what it is, the pros and cons, and how it affects them as offenders. Proceed to have them ask questions of the other groups.

2. Give the students a situation that will require a new law to be passed. Have the students break into groups and each group be a different law-making entity. Have each of the groups argue how they would make the new law with their law-making abilities. (Example, one group could be the executive branch, one could be a member of Congress, one could be in charge of an administrative agency, one a federal judge, etc.)

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

Review Questions

9. Civil liberties are individual, personal rights. The U.S. Constitution protects many such rights, and students may list any two. The freedoms of speech and religion were specifically mentioned in the text.

10. Common law is a body of unwritten law (in the sense that statutory law is written) that develops from the custom and practices of a community, as recognized by judicial decision. Stare decisis (―Let the decision stand‖ ) is a legal doctrine that recognizes judicial decisions by having later cases follow the law as set in earlier cases. The earlier case looked to for a legal conclusion is known as precedent. The common law would be no more than a set of inconsistent opinions if it were not for stare decisis.

11. Each state has its own judicial system, a system that is free to interpret matters of state law differently.

12. ―There is no crime if there is no law (statute).‖ The premise is important in criminal law because the doctrine can work to prohibit the creation of crimes by courts, which was common under common law. Generally, the doctrine requires the existence of a statute to impose criminal liability. Additionally, the statute must be enacted prior to the time the criminal act occurred. This principle is enforced through the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. (Many states have comparable provisions in their constitutions.)

13. The principle of legality describes the information discussed in the response to the previous question. It is a concept of due process requiring that a criminal prohibition be written, that it exist prior to the time an alleged criminal act occurred, and that such law be precise. The common law, when used as relevant to the creation of crimes, violates this principle because the declaration that the act is criminal does not occur until after the commission of the act. This appears to violate the due process clauses of the Fifth and Fourteenth Amendments, as no notice that the act could be punishable by law had been provided.

14. Even in such jurisdictions, the common law is useful. First, in many cases, legislatures simply adopt the common-law definition when codifying the elements of the crime. In those instances, the opinions of courts are very helpful in understanding the crime, as it is assumed that the legislature did not intend to alter the common law. Second, if a legislature does not set a penalty for violation of a criminal prohibition, the common-law penalty may be applied. Third, many procedures established under the common law continue to be valid.

15. Most criminal law is created by legislatures. The written laws of the U.S. Congress and the many state legislatures are known as statutes or codes.

Note that increasingly, administrative bodies are responsible for the creation of criminal prohibitions.

16. An ordinance is the written law of a local governmental body, such as a city or county council.

17. A regulation, or an administrative rule, is the written law of an administrative agency.

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 2: Introduction to Criminal Law

18. Courts establish rules controlling the processing of cases. These rules govern

procedural aspects of the law, not substantive aspects. Generally, the rules supplement the rules of procedure established by the legislature. Court rules, for the most part, may not conflict with legislative mandates.

19. The Constitution of the United States is the highest form of the law in the land. As such, it should appear at the apex. A division should then be drawn between those powers belonging to the states and those falling under federal jurisdiction. The result is a hierarchy wherein the United States Code and federal administrative regulations follow the Constitution in the federal system. As to states, the order should be as follows: U.S. Constitution, state constitutions, state statutes, state administrative regulations, and ordinances. [return to top]

Problems & Critical Thinking Exercises

1. The purposes for punishing criminals are as follows: • Specific deterrence: Those who are convicted and punished are specifically deterred from future misconduct.

• General deterrence: All members of society are deterred from misconduct when individuals are punished for wrongdoing.

• Incapacitation: Criminal conduct is prevented (against society as a whole) by making it impossible for those convicted to commit future crimes. This is most often accomplished by incarceration, although death is another form of incapacitation.

• Retribution: Based on the premise ―an eye for an eye,‖ retribution is society’s method of avenging a wrong where the criminal is punished through the criminal justice system.

• Rehabilitation: Those individuals convicted are subjected to education, training, and therapy with the purpose of altering their behavior to conform to societal norms.

2–5.

These questions require answers that are partly subjective. The purpose of the questions is to initiate class discussion concerning the various methods as students consider the different and, occasionally, competing purposes.

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 16 Chapter Objectives .................................................................................... 16 Key Terms................................................................................................ 16 Chapter Outline ......................................................................................... 17 Discussion Questions .................................................................................. 22 Review Questions ...................................................................................... 22 Problems & Critical Thinking Exercises ........................................................... 23 Additional Resources .................................................................................. 25 Cengage Video Resources......................................................................... 25 External Videos or Playlist ........................................................................ 25 Internet Resources .................................................................................. 25 Primary Sources ..................................................................................... 25 Cengage Audio Resources ........................................................................ 25 External Audio Resources ......................................................................... 25 List of Transcripts for Audio Assignments .................................................... 25

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss what goes into a crime. The mental state, the action required, and so forth. It also delves into when not acting becomes a crime. Mens rea and actus reus will be covered, as well as some ethical considerations.

Chapter Objectives

The following objectives are addressed in this chapter: • • • •

Compare and contrast general, specific, strict vicarious, and corporate mens rea under the common law.

Explain the four states of mind recognized under the Model Penal Code.

Define actus reus and explain whether thought, speech, personal status, and possession are treated as acts.

Identify and describe three or more occasions when inaction is criminal.

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Key Terms actus reus attendant circumstances constructive intent corporate liability element analysis foreseeability general intent inferences injunctions intervening cause knowingly legal cause legislative history mens rea motive negligence offense analysis omission presumption proximate cause purposely recklessness

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

scienter specific intent statutory construction strict liability crimes transferred intent vicarious liability [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Mens rea—The State of Mind Required to Be Criminally Liable for a Certain Act A. Guilty mind‖ or possessing a criminal intent B. Most criminal laws require some degree of intent before criminal liability attaches C. Exception: reckless or negligent behavior D. Lack of uniformity between criminal statutes and judicial decisions E. Common law—mens rea thinking was that no crime occurred without a guilty mind F. Specific intent 1. Intent to commit the exact crime charge or the precise outcome of the act and not merely the intent to commit the act without the intent to cause the outcome 2. Defendant’s purpose was the result of the act 3. Scienter required—show that the defendant possessed knowledge of a particular fact or illegality a. Example: receiving stolen property—if there is no knowledge that property is stolen, no crime has been committed G. General intent 1. Intent to commit the crime without intention to cause the outcome 2. Prove that the defendant intended to take the act that resulted in the prohibited outcome; general intent is proved H. Constructive intent

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

1. Defendant did not intend to cause the result, but it is so likely to occur that the law treats the act as one of specific intent 2. Inferred, implied, or presumed given the circumstances I. Malum in se crimes 1. Inherently evil crimes like rape, arson, and murder 2. Usually require an evil intent J. Malum prohibitum crimes 1. Only criminal due to declaration by legislation 2. Usually do not require an evil intent 3. Example—not filing quarterly taxes K. Transferred intent 1. Any unintended illegal act stemming from the intent to commit a crime is also a crime 2. There are limits on transferred intent a. Harm that actually results must be similar to the intended harm b. The transfer cannot increase the defendant’s liability c. Defense may only limit a person’s criminal liability to a lesser charge (intoxication) II. Strict Liability Crimes A. Crimes where mens rea or criminal intent are not an element 1. Guilt without intent—the showing of committing the act is enough 2. Exception to common law requirement of evil mind/evil act 3. Malum prohibitum can be strict liability 4. Public welfare cases 5. Typically, minor infractions punishable by fines 6. Serious strict liability crimes with harsh punishments have been challenged on constitutional grounds III. Vicarious Liability A. Legal responsibility for actions of another person due to established relationship B. There is no requirement for mens rea C. No requirement for an act 1. Corporate liability—corporations may be held liable for the acts of their employees and agents

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

2. Agents must be working in the scope of employment 3. Employer/employee 4. Corporations cannot be imprisoned, so fines are normally imposed or injunctions given IV. Current approaches to mens rea A. The Model Penal Code rejected most of the common law ideas regarding mens rea and instead came up with four states of mind: 1. Purposefully—a defendant must have a desire to cause the result a. Closely relates to the common law of specific intent 2. Knowingly—a defendant must be aware of the nature of the act and be practically certain that their conduct will cause a particular result— which is not the defendant’s objective 3. Recklessly—indifference to the safety and rights of others—it consists of conduct amounting to more than negligence a. The risk taken must be one that involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation 4. Negligence—there must be a substantial and unjustifiable risk taken by the defendant a. No conscious awareness of the risk when there should have been b. Failed to perceive the risk altogether B. Proving mens rea—the prosecution has the burden of establishing that the defendant possessed the required mental state when the act was committed 1. Subjective intent—motives, intentions, and desires in the defendant’s mind at the time the act took place a. The defendant’s actual intent 2. Objective intent—a legal imposition on defendants of what they should have known or believed at the time the act occurred a. Usually a reasonable person standard b. Easier to prove than subjective intent 3. Inferences—a conclusion that a judge or jury is permitted to make after pondering the facts of the case 4. Presumptions—a conclusion made by a judge or a jury that is an automatic assumption required by law when a certain set of facts occur a. Rebuttable presumptions—conclusions that must be made by a judge or jury unless disproven by facts

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

b. Irrebuttable presumptions—conclusions that must be made by a judge or jury and cannot be disproven—they stand as fact C. Motive—the reason why a person does something 1. Different from mens rea—it leads to mens rea 2. It is not an element of the crime 3. Plays a role in sentencing V. Actus Reus—the Physical Part of the Crime, the Act Engaged in by the Accused A. The act must be voluntary B. Involuntary acts such as acts done while sleepwalking are not the actus reus necessary C. No evil intent is required, just the act D. Thoughts and statements as acts—thoughts alone are not criminal acts 1. Only when evil thoughts are translated into evil acts can they be punished E. Personal status as an act—generally a person’s status cannot be punished by itself (illness, financial status, race, religion, etc.)

F. Possession as an act—possession of certain items is criminal (stolen property) 1. Possession is not an active act, but most possession laws have still been upheld 2. Jurisdictions differ in what is required to be proven for possession 3. Problem if the person accused had no knowledge of the existence of the items in question VI. Actus Reus—When Not Acting Can Be Criminal A. In some situations failure to act can be criminal 1. Usually there is no legal duty to act even if there is a moral one 2. You do not have to save someone from drowning or danger B. There must be a duty imposed 1. Duty imposed by statute—usually there is a duty to report harm 2. Normally the reporting is enough unless there is a special relationship between the parties such as parent/child 3. That duty by relationship normally applies to parent/child and spouse/spouse 4. Duty by contract—there is a contract in place to create the duty to act such as with physicians/patients

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

a. General duty is no duty to rescue C. Assumption of duty—can be expressed orally or in writing 1. Example: if one assumes responsibility for another and is at a pool and that person falls in and the person assuming responsibility does nothing, they can be liable for the drowning 2. If one jumps in to save someone and then stops before doing so, they can be liable for the consequences—once you start you are to at least attempt to finish D. Creation of danger—when one creates a dangerous situation, the duty is imposed then to assist any affected persons E. Causation—two forms of causation necessary for criminal liability to occur 1. Legal cause—this is the cause that the law deems sufficient (the probable cause) 2. Proximate cause—the legal cause of the injury a. The result must be the consequence of the act, not just a coincidence 3. Foreseeable—the degree to which consequences of an action should have been anticipated 4. Intervening cause—cause that will remove blame from the person who originally set the actions in motion VII. Concurrence—for crimes with a mental and physical element, the additional requirement of concurrence must be proven A. This is the joining of the mens rea with the actus reus 1. The mens rea must be the cause of the actus reus 2. Has to be a connection between them VIII.

Attendant Circumstances and Element Analysis

A. Attendant circumstances are facts or conditions that must be proven along with the mens rea and actus reus for a defendant to be convicted B. Offense analysis—in common law there was one mens rea per crime—this is offense analysis C. The Model Penal Code states there can sometimes be two states of mind in a criminal act—this is element analysis IX. Ethical Considerations A. An attorney must zealously represent their clients but cannot be overzealous B. Cannot intentionally mislead the court, fabricate evidence, suborn perjury, harbor fugitive clients, or file false documents

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 3: The Two Essential Elements

C. A prosecutor’s duty is to seek justice and a defense attorney’s duty is their general ethical obligation

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Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the class into groups and have them come up with a situation in which they have a duty to rescue another person. Have them give reasons why a duty exists, what actions they have to take for the duty to start, and so on.

2. Have the class try and come up with a crime that can have all four types of mens rea of the Model Penal Code. Explain each one and how the mens rea differs but the ultimate crime is the same.

3. Discuss vicarious liability and have the students come up with scenarios in which it would seem vicarious liability would not apply, but it in fact does.

Review Questions

20. A defendant must be proved to be both the factual and legal cause of the

harm. Factual causation is tested using the ―but for‖ test. That is, but for the defendant’s act, the harm would not have occurred. Legal causation focuses on the similarity between (1) the intended result and the actual result and (2) the intended method to bring about the result and the actual cause of the result. In many jurisdictions, legal causation is also referred to as proximate causation. An act is considered the proximate cause of a result if a reasonable person would have foreseen the result.

21. No. Before criminal liability can exist for failing to save another person, a duty to aid that person must be established. In most jurisdictions, people owe no duty to strangers.

22. Concurrence is a legal doctrine requiring that mens rea and the act occur together. The mental state must be the cause of setting the act into motion.

23. Failing to act when required to do so is an omission. The duty to act can be imposed in many ways, including by statute, such as the requirement to file an income tax return. Although not an act in reality, an omission is treated like an act for purposes of imposing criminal liability.

24. The four mens rea under the Model Penal Code are purposeful, knowing, reckless, and negligent. Purposeful characterizes the state of mind wherein a person has a desire to cause a specific result. Knowing is a state of mind in which the actor may not desire to cause a specific result but knows (or should know) with practical certainty that the result will occur. Reckless is similar to knowing, only with a lesser risk involved. To be reckless, an actor must be aware of a substantial and unjustified risk. To be negligent, the

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actor must take a substantial and unjustified risk, as with recklessness, but the act is taken without an awareness of the risk.

25. Vicarious liability is imposed when one is held criminally liable for the acts of another.

26. Presumptions are conclusions that judges or juries sometimes make. A presumption is rebuttable if the law permits it to be disproved. For example, a person is innocent until proven guilty. An irrebuttable presumption may not be disproved, despite the amount of evidence.

27. Yes. Under the common law, corporations, for the most part, were not liable for criminal acts. Today that is not true. Of course, corporate liability is achieved through vicarious liability.

28. Mens rea is the state of mind that leads to the criminal act. Motive is the underlying reason for the mens rea and the criminal act. By law, prosecutors are required to prove mens rea but are not required to prove motive. As a practical matter, prosecutors often must prove motive in order to obtain a conviction. [return to top]

Problems & Critical Thinking Exercises

1–6. Statute I defines a specific intent crime under the common law. Under the Model Penal Code, the mens rea would be purposeful. This is true because the inmate must ―pass beyond the borders of an institution with an intent to never return.‖ Hence, the purpose is never to return. If an inmate does not have such a purpose, Statute I has not been violated. Statute II does not have an explicit mens rea requirement. This statute will probably be read by courts as one of strict liability.

6. Spike intended to return, so Spike has a defense of lack of mens rea as to Statute I. Statute II, being strict liability, was violated as soon as Spike passed over the boundary line of the facility. All that must be examined in strict liability cases is whether the defendant took the act freely. Spike did so in this situation.

7. Spike did not have as his purpose never to return to the facility. As such, he has a defense to Statute I. To prove strict liability statutes, all that has to be proved is that the act occurred. However, the act must be voluntary. As such, Spike has a defense of no act against both statutes because his movement of falling outside the borders of the facility was not voluntary.

8. Spike has no defenses, as his intent never to return satisfies Statute I and his movement across the boundary line of the facility satisfies the second requirement of Statute I and the requirement of Statute II. 9. Again, Spike did not possess the requisite mens rea to be convicted under Statute I. He also has a defense against Statute II because he ended up outside the fence not by his own act, but by Ben’s.

10. This question involves a problem with concurrence. Spike possessed the requisite mens rea, but it is debatable whether the act joined with the mens rea. While the mens rea did set the act into motion indirectly, there appears to be a lack of concurrence because Spike did not plan for the act to happen at that moment. However, strict liability crimes require no mens rea, and, as

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such, concurrence is not a problem. The issue as to Statute II is whether Spike can be held accountable for passing over the boundary of the facility.

He can because he enlisted Ben to throw him over the fence.

11. Spike has a defense as to Statute II but not Statute I. While he did not leave the facility voluntarily, once beyond the boundary, he had an obligation to return. By choosing to run, it can be assumed that he was intending to escape. However, to violate Statute II, one must pass over the boundary line of the facility. In this case, he did not pass over voluntarily, so he did not violate Statute II. 12. Although purposeful would normally require that the defendant actually intended to cause the harm that actually resulted to the person or thing that was actually harmed, no defense exists herein because of the doctrine of transferred intent. The doctrine applies because the crime is one requiring a show of intent to cause a harm, the resulting harm was substantially similar to what she intended, and Penni’s liability was not increased by the transfer.

13. Yes. Since William entered into an agreement whereby he was to supervise the trip, he had a duty to attempt to save the drowning boys. His failure to try to save the boys is an omission. His duty was created by the contract with the troop.

14. Yes. Sherri is the factual cause of the death. ―But for‖ her act of burning her home, the worker would not have fallen from the ladder. However, she is not the legal cause of the worker’s death. For Sherri’s action to be the legal cause of the death, it must be shown that there is a relationship between the intended result and the actual result—that the intended result is proximate to the actual result. This cannot be shown. It is reasonable to think that the fire may spread to buildings close to Sherri’s home, but it is not reasonably foreseeable that a neighbor would be storing enough explosives to cause such a tremendous blast. It is even less foreseeable that a person working on a house a block away would be harmed by the fire.

15. Jane’s defense is that she took no act. The statute makes her status as a pedophile illegal. Generally, a person’s status or condition does not constitute an act and may not be made criminal. Of course, if Jane acted on her sexual impulses, she could be prosecuted. It is probable that this statute would be found unconstitutional, as violative of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

16. Section 2.10(4) of the Model Penal Code states that possession can be an act when ―the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.‖ This section includes what has traditionally been known as actual and constructive possession. Clearly, Janice can be charged with possession since she exercised actual possession over the cocaine.

Ashley, Amy, and Karen may be charged since they each exercised dominion and control over the premises if constructive possession is proved. Amy does have a defense because she had no knowledge that the cocaine was in the apartment, and, as such, she was not ―aware of her control.‖ Ashley also has a defense because she acted to terminate her possession. Karen, on the other hand, was a possessor because she knew of the cocaine, had adequate

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time to terminate the possession, and did not do so. In fact, she was the cause of Janice bringing the cocaine back into the apartment.

17. Discussion question.

18.Discussion question.

19.Discussion question. [return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 4: Crimes Against the Person

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 27 Chapter Objectives .................................................................................... 27 Key Terms................................................................................................ 27 Chapter Outline ......................................................................................... 28 Discussion Questions .................................................................................. 32

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 4: Crimes Against the Person

Review Questions ...................................................................................... 32 Problems & Critical Thinking Exercises ........................................................... 33 Additional Resources .................................................................................. 34 Internet Resources .................................................................................. 34

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 4: Crimes Against the Person

Purpose and Perspective of the Chapter

The purpose of this chapter is to study crimes, their elements, how they are proved, and contemporary questions about them. This chapter focuses on crimes against the person. These include homicide, assault and battery, mayhem, rape and sex offenses, kidnapping and false imprisonment, true threat, stalking and cyberstalking, civil rights and hate crimes.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • • •

Define, compare, and contrast the various forms of murder and manslaughter at the common law.

Compare and contrast the elements for assault and battery.

Describe the evolution of the crime of rape into modern sexual assault laws.

Define, describe, and apply the elements of kidnapping and false imprisonment.

Identify, define, and apply the elements of true threat.

Define, describe, and apply the elements of stalking.

Describe the constitutional limitations on when hate may be criminalized or used in a criminal case.

[return to top]

Key Terms assault battery corpus delicti cyberstalking deadly weapon doctrine false imprisonment felony murder first-degree murder kidnapping lesser included offense manslaughter mayhem merger predicate offense provocation rape second-degree murder shield laws stalking

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statutory rape true threat [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Three Major Categories of Crimes A. Crimes against persons B Crimes against property C. Crimes against the public D. Lesser included offenses—a crime whose elements are found completely within another more serious crime 1. If more serious crime is proven, the lesser gets absorbed into it 2. This is called a merger II. Homicide under Common Law A. The unlawful killing of a human being with malice aforethought B Death can be actual death or brain death C. Has to have aforethought D. Implied murder—if a person intended to commit a serious act and the person died as a result 1. Intent to cause serious bodily harm murder 2. Felony murder—one who causes unintended death during the commission of a felony is guilty of murder a. Accomplice liability b. Felony must be the proximate cause of the homicide 3. Misdemeanor manslaughter—death results from the commission of a misdemeanor a. Conviction is often for felony manslaughter, not murder 4. Communicable diseases and murder—intentionally passing a disease to another is attempted murder or murder a. Unintentionally passing a disease may be criminal under the negligent manslaughter statute E. Manslaughter—unlawful killing without malice aforethought

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1. Killing in response to a provocation was manslaughter 2. Mutual combat 3. Defense of others and imperfect self-defense III. Modern Murder and Manslaughter—the Model Penal Code (MPC) classifies degrees of murder and manslaughter—all are murder, manslaughter, or negligent homicide A. Has four mens rea elements: purposeful, knowing, reckless, and negligent 1. All purposeful and knowing homicides are murder under the MPC A. First-degree murder—the highest form of murder and punished the most severely 1. Willful, deliberate, and premeditated 2. Goal is the death of the victim 3. Specific-intent crime B. Second-degree murder—the defendant lacked the specific intent to kill or lacked the premeditation and deliberation element C. Manslaughters—felonies of the second degree 1. All reckless homicides are manslaughter D. Negligent homicides are felonies in the third degree E. Involuntary manslaughter—negligent homicide, vehicular homicide where an unintended accidental death occurred F. Suicide—common law was criminal, not in modern times 1. It is criminal to aid in committing suicide 2. There is no liberty in the right to die G. Corpus Delicti—the body of a crime 1. Prosecutors must prove this at trial 2. Confession by the accused is not enough IV. Assault and Battery A. Assault—an intentional show of force—does not require physical contact 1. Fear of apprehension 2. Attempted battery—any unsuccessful battery is an assault B. Battery—an intentional touching of another without consent that is harmful or offensive 1. Must have the touching—that is the battery

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2. Must be offensive or harmful C. Aggravated assault and battery—when accused is engaged in the commission of another crime V.

Mayhem—Originally a Common Law Crime A. Violently, maliciously, and intentionally inflicting a serious and permanent wound

B.

Can include loss of an eye, ear, or limb C. Some states do not have mayhem statutes—so these crimes are classified as aggravated batteries VI. Rape and Sex Offenses A. Rape—imposition of sexual intercourse by force or otherwise without legal and valid consent 1. Most states have abolished the marital rape exclusion 2. Modern—does not have to be intercourse—all sexual acts are covered 3. Nonforcible rape—statutory rape sexual intercourse with someone under a specified age a. Also rape to have sexual intercourse with someone incapable of consenting B. Rape shield laws—effort to protect victims from harassment by defense attorneys at trial 1. Evidence of prior sexual conduct is not permissible during trial C. Sex offenses against children—numbers of these are increasing so states have statutes prohibiting specific acts against children 1. Some include child seduction laws as well D. Megan’s laws—requires sex offenders to register with law enforcement agencies 1. Every state has some form of Megan’s Law 2. Chemical castration has sometimes been used to control sex offenders VII.

Kidnapping and False Imprisonment

A. Kidnapping—taking away and holding a person illegally, against the person’s will or by force 1. Misdemeanor at common law—felony today 2. If taken across state lines it becomes a federal crime, and the FBI can get involved 3. The taking must be unlawful

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4. Must be some type of confinement 5. Has to be asportation 6. New statutes aimed at parental kidnapping in custody cases B. False imprisonment—when one person interferes with another’s liberty by use of threat or force without authority 1. Lesser included offense of kidnapping 2. Lack of asportation VIII.

True Threat—Threatened Harm Can Be Punished

A. A threatening statement is not protected by the First Amendment B. Cannot be just a racial, religious, or gender epithet—must be more severe C. Must intentionally, purposely, knowingly, or recklessly communicate a serious expression of an intent to commit an unlawful violence to a particular individual or group of individuals that would cause a reasonable person to fear serious bodily harm or death and the threat is communicated to, and received by, the targeted individual or group IX. Stalking—repeatedly harassing, threatening, lying in wait, or conducting surveillance of another person in ways that lead to a legitimate fear of physical harm A. The victim must subjectively and objectively experience fear B. Cyberstalking—using communication technology to transmit obscene, abusive, or harassing language intended to harass or threaten another person 1. Easier to harass people electronically 2. Both state and federal statutes address cyberstalking 3. Can sometimes be a free speech issue X. Civil Rights and Hate Crimes A. It is a crime for two or more persons to injure, oppress, threaten, or intimidate a person for exercising a federally secured right B. Supreme Court says that threatening speech may only be regulated if it is likely to result in imminent lawlessness and the speaker intends to cause that lawlessness C. Supreme Court said states may punish conduct that is intended to intimidate, provided it does so in a viewpoint neutral manner [return to top]

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Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the class into groups. Have a scenario where a murder occurs. Have each group take a different stance as to whether it is first-degree murder, second-degree murder, or manslaughter. Have them give specific reasons why.

2. Give unusual examples of assault and battery for students. Some examples might include touching someone with your umbrella, someone’s dog brushing by another while you are walking them, scaring someone just by the way you look, and so on. Have the students come up with silly assault and battery examples and perhaps have them act them out.

3. Ask the students a few different questions regarding communicable diseases.

What if someone knowingly has COVID and sleeps with someone else and is in close contact with them? Is that a battery? What other possible crimes?

What if they have hepatitis?

4. Have the students give examples of cyberstalking and all the different ways it can occur (social media, e-mail, texting, group chats, twitter, etc.). If any are comfortable with talking about having been a victim of cyberstalking, perhaps have them give their account of the events.

Review Questions

20. First- and second-degree murder are commonly differentiated, through the

lack of premeditation or deliberation in second-degree murder. Normally, some fact, such as ―heat of passion,‖ works to prevent the killer from forming the requisite mens rea.

21. A felony-murder occurs when someone is killed during the course of specific felonies (e.g., robbery and rape). Despite the lack of intent to cause a death, the defendant may be liable. There must be a nexus between the homicide and the crime.

22. Traditionally, battery has been defined as an unlawful, harmful, or offensive touching of another. Assaults can be incomplete batteries, or they can be committed intentionally through placing another in fear or apprehension of an impending battery. The first form of assault requires an intent to batter, and no knowledge of the victim of the act is required. The second form of assault requires no intent to actually batter, only to cause the victim apprehension relative to an impending battery. Also, the second form requires knowledge by the victim; otherwise, there would be no apprehension.

23. The marital rape exception provided that men were not criminally liable for raping their wives. Additionally, men were not liable for simple assaults committed on their wives that occurred as a result of the wife not submitting to sex with her husband.

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24. Catching a spouse in the act of adultery might be adequate provocation to

reduce the homicide to voluntary manslaughter.

25. Self-defense acts to negate liability entirely. Imperfect self-defense, however, occurs when a person is mistaken about the danger to himself or herself and reasonably, but erroneously, believes that the force used is necessary for protection. In such cases, the defense acts to reduce a resulting homicide from murder to voluntary manslaughter.

26. Kidnapping involves asportation (movement); false imprisonment does not.

27.Mayhem.

28. Sex with a person who is incapable of understanding the nature of sex due to mental or emotional disability may be a nonforcible rape, as is the case with so-called statutory rape, or rape with a person under a specific age.

29. The common law definition of murder is the killing of another human being with malice aforethought. [return to top]

Problems & Critical Thinking Exercises

1. The elements of forcible rape are (1) sexual intercourse with (2) another (3) against that person’s will (4) by force or such a threat of force that resistance would have resulted in serious bodily injury. This changes the common law in the following ways: i. The statute is gender neutral. ii. It does not contain a marital rape exception. iii. The victim is not required to resist if it is reasonable to believe that serious bodily injury or death would result.

2. First, by his own admission, Mark clearly intended to assault Sam. Further, Mark battered Sam. Regarding the homicide, since Mark used a deadly weapon, he could be convicted of first-degree murder. The jury could use the deadly weapon doctrine to conclude that Mark intended Sam’s death and, accordingly, to convict Mark of first-degree murder. If the jury believed that Mark only intended to cause Sam serious bodily injury, they could convict him of second-degree murder. Finally, if the jury believed Mark’s story entirely (that he only intended a minor injury), they could convict him of manslaughter.

3. First, Jeff may claim that he wasn’t the legal cause of Megan’s death if the jurisdiction in which Jeff is charged uses the year-and-a-day rule. His second defense may be that he wasn’t the actual cause of death—that the physician who disabled the life-support system was the actual cause of death. Of course, both defenses are hinged on the question of when death occurs. If the jurisdiction uses the older respiration and heartbeat test and the yearand-a-day rule, Jeff would probably be successful with the claim that he wasn’t the legal cause of death, as Megan’s respiration did not stop until 14 months after Jeff’s act. For the same reason, Jeff would likely be successful with the claim that he was not the actual cause of death. In those jurisdictions that recognize brain death, he probably would not escape liability, as Megan would have been dead as of June 15, 2014. This would be

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true even if the state used the year-and-a-day rule, as her brain death occurred within one year and a day.

4. Of course, battery can be charged. However, most jurisdictions have a mayhem or aggravated battery statute that would apply. For aggravated battery, it would have to be shown that serious bodily injury resulted. That could be done with this set of facts. For mayhem, the lacerations to the face may not be enough, but the loss of the ear certainly would be.

5. The statute provides for three mens rea: purposeful, knowing, and reckless.

Clearly, Eddie did not have as his purpose the death of Mikey. To be knowing, the Model Penal Code requires ―practical certainty‖ that the result would occur. This cannot be proven from the facts. Finally, to be reckless, it must be shown that Eddie’s conduct was a ―gross deviation‖ from a lawabiding person’s standard of conduct. Again, this cannot be proven. Eddie used an insecticide that was available on the market, and there was no reason for him to suspect that there would be such a result.

6. The elements of kidnapping are (1) the unlawful (2) taking and confinement and (3) asportation of (4) another person (5) by force or threat. The issue that must be resolved first is whether making Tracy move from where she met the robber to the location of her car was asportation. Using the Model Penal Code approach, it would not be since the move did not increase the risk to her life. The move appeared to be incidental to the robbery.

7. Discussion question.

8. Collection of revenue; regulation for health and safety, including testing for STDs; and prevention of minors from patronizing prostitutes, to name a few.

9. Discussion question. [return to top]

Additional Resources Internet Resources • •

http://www.Ucr.fbi.gov for FBI UCR reports http://www.bjs.gov for NCVS data

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Table of Contents

Purpose and Perspective of the Chapter ......................................................... 36 Chapter Objectives .................................................................................... 36 Key Terms................................................................................................ 36 Chapter Outline ......................................................................................... 37

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Discussion Questions .................................................................................. 40 Review Questions ...................................................................................... 41 Problems & Critical Thinking Exercises ........................................................... 41 Additional Resources .................................................................................. 42 Cengage Video Resources......................................................................... 42 External Videos or Playlist ........................................................................ 42 Internet Resources .................................................................................. 43 Primary Sources ..................................................................................... 43 Cengage Audio Resources ........................................................................ 43 External Audio Resources ......................................................................... 43 List of Transcripts for Audio Assignments .................................................... 43

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss crimes against property There are two main types. One is where property is unlawfully used or harmed, like arson, trespass, mischief, burglary, and theft. The other is when property is taken from its rightful owner or possessor, as in larceny, fraud, extortion, and other white-collar crimes. We will also be discussing money laundering, forgery, computer crimes, and RICO.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • • • • • • • • • •

Define, describe, and apply the elements of arson.

Define, describe, and apply the elements of burglary.

Define, describe, and apply the elements of trespass and criminal mischief.

Define, describe, and apply the elements of larceny.

Define, describe, and apply the elements of embezzlement.

Define, describe, and apply the elements of false pretenses.

Define, describe, and apply the elements of receiving stolen property.

Define, describe, and apply the elements of robbery.

Define, describe, and apply the elements of extortion.

Describe how the MPC consolidates theft crimes.

Define, describe, and apply the elements of RICO. Define, describe, and apply the elements of money laundering.

Define, describe, and distinguish the elements of forgery and counterfeiting.

Define, describe, and apply the elements of identity theft

[return to top]

Key Terms arson burglary conversion counterfeiting criminal coercion criminal mischief embezzlement extortion false pretenses forfeiture forgery forum analysis identity theft larceny National Crime Information Center

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Racketeer Influenced and Corrupt Organizations Act (RICO) receiving stolen property robbery sextortion trespass

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Crimes Involving Property A. Common law arson—the malicious burning of the dwelling of another 1. Malice was the mens rea 2. It was narrow in scope and the building had to sustain some damage B. Modern arson—owners can be guilty of arson for burning their own buildings 1. Mens rea is now reckless and purposeful 2. Fire does not have to touch the structure—the setting of the fire is enough 3. Structure can include any structure which is intended to collect insurance C. Common law burglary—breaking and entering of the dwelling of another at night with the intent of committing a felony once inside 1. Passing through an open door was not sufficient breaking 2. Opening an unlocked window is sufficient D. Modern burglary—can now be unlawful entry to any structure for purpose of committing a felony or stealing once inside 1. Eliminated the ―breaking‖ element but does require some unlawful entry 2. Some states have done away with the night time requirement 3. Burglary is graded E. Trespass—the unlawful touching of the personal property of another or entry onto real property of another 1. There is civil and criminal trespass 2. Remaining on or maintaining control of property can also be trespass 3. One can trespass on federal public land

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a. Government can instill restrictions but they must be reasonable as to time, place, and manner F. Mischief—intentionally destroying the property of another 1. A specific intent crime that reduces the value of property II. Theft Crimes Against Property A. Larceny—the taking and carrying away of the property of another with intent to permanently deprive them of it 1. The property must be obtained unlawfully 2. Must carry away the property—even the slightest movement 3. Even if there is no intent to permanently deprive the owner but the defendant takes the property and devalues it—a larceny will occur B. Embezzlement—the conversion of the personal property of another by one who has acquired lawful possession with the intent to defraud the owner 1. Must prove conversion has taken place 2. Embezzlement differs from larceny in that a lawful acquisition must take place 3. Negligent conversion is not enough—must be intent to deprive C. False pretenses—a lie told to cheat another person out of their property or money 1. There must be a false representation that the actor knows is false and that plays a big part in the transaction D. Receiving stolen property—receiving property that is stolen with knowledge of its stolen character with the intent to deprive the owner of the property 1. Can be actual or constructive possession 2. Property must have been stolen 3. Knowledge that property is stolen is required E. Robbery—a trespassory taking and carrying away of personal property from another’s person or presence using force or threat with an intent to steal the property 1. Mens rea—specific intent to take the property and to deprive the owner of it 2. It is assault mixed with larceny 3. The element of a threat distinguished it from larceny 4. The threatened harm must be immediate and not future harm F. Extortion—the taking and acquisition of property or compelling an act or omission of/by another person using a threat with an intent to

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permanently deprive the owner of the property or cause the act or omission to occur 1. The actor must intentionally communicate a threat and specifically intend to take property or money to compel the victim to act 2. Also known as blackmail 3. Sextortion—the use of sexual images to commit extortion 4. Can be immediate or future harm G. Consolidating traditional theft crimes—the Model Penal Code proposed a comprehensive consolidation of larcenies, uniformly labeled theft 1. Include common law crimes of larceny, theft by deception, false pretenses, embezzlement; some jurisdictions also include fraudulent checks, receiving stolen property, and extortion 2. Provided that a defendant is not prejudiced by doing so, the specification of one theft crime by the prosecution does not prohibit a conviction for another 3. Not all theft crimes are consolidated—robbery and forgery are usually separate H. RICO—the Racketeer Influenced and Corrupt Organizations Act—an attempt to curb organized crime 1. Has both civil and criminal provisions 2. To establish a RICO violation, the United States must prove that the a. defendant received money or income b. from a pattern of racketeering activity (two or more acts) c. invested that money in an enterprise (business) d. which operates in interstate commerce or affects interstate commerce.

3. Can provide for forfeiture of property in criminal proceedings I. Money laundering—channeling money through legitimate businesses in order to hide profits by criminal enterprises 1. A crime to conduct a financial transaction knowing that the money involved is the product of any illegal activity with the intent to one of the following: a. Carry on a ―specified unlawful activity‖ b. Commit tax evasion or tax fraud c. Conceal or disguise the nature, location, source, ownership, or control of proceeds of the specified unlawful activity d. Avoid a financial transaction reporting requirement

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J. Forgery—making, using, or changing a false document that is passed to another with the intent to defraud 1. Goal is to prevent fraud and preserve the value of written instruments 2. An alternation of an instrument K. Counterfeiting—the creation of a copy of an original item of value with sufficient similarity to convince a person of ordinary caution that it is real, uttered or used with intent to defraud 1. Counterfeiting U.S. money L. Identity theft—the act of assuming another’s identity by fraud 1. The mens rea is the intent to gain something of value through deceit or to commit any other crime 2. Offender can be convicted of identity theft and the underlying crime 3. Federal government has identity theft criminalized as well a. Identity Theft and Assumption Deterrence Act of 1998 M. Cybercrime—there are two forms of computer crimes 1. Using a computer as a tool to commit a crime 2. The computer is a target (hardware, software, etc.)

3. Standard larceny, embezzlement, fraud, and criminal mischief laws are often applicable 4. A mix of misdemeanors and felonies 5. The NCIC (National Crime Information Center) is a computerized system of records used by law enforcement agencies nationwide in the reporting and detection of wanted persons [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Have the students come up with a scenario that encompasses at least five of the property crimes discussed in the chapter. (Examples could be an organized crime ring that involved RICO, money laundering, forgery, false pretenses, and receiving stolen property) 2. Ask the students to give examples of computer crimes they have witnessed such as phishing, spoofing, spamming, and so on.

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3. Have the students do research and find an interesting embezzlement case.

There are many cases out there with examples of this, such as Jane who was the office manager of XYZ Corporation for 25 years. She had been skimming off the books and changing the spreadsheets and stolen over a million dollars over the years. It is quite interesting to read some of these cases. What do the students feel is a just punishment for these types of crimes? Should they be punished any less?

4. Discuss how burglary and robbery are different. Can they ever be the same thing?

Review Questions

30. When one gains entry to a building through use of fraud, constructive

breaking has occurred. The concept of constructive breaking was used as a substitute for the actual breaking requirement of the common law.

31. Larceny is the trespassory taking and carrying away of personal property of another with an intent to deprive the owner thereof.

32. Criminal mischief is the intentional destruction or damaging of property belonging to another.

33. Simple larceny involves only a loss of property. Embezzlement involves violation of a trust as well as a theft. It is important to preserve the integrity of trust relationships, such as those between lawyers and their clients.

34. Racketeer Influenced and Corrupt Organizations Act. The basic elements are that (1) the defendant received money or other income (2) from a pattern of racketeering activity (3) and invested that money in an enterprise (4) that is involved in interstate commerce.

35. Fences are people who purchase stolen goods from thieves and resell the goods for a profit. Fences commit the common law crime of receiving stolen property. This crime is now often part of statutes that consolidate theft.

36. The Model Penal Code treats the causing of an explosion of a structure as arson if the act was purposeful. At common law, causing a structure to explode was not arson unless part of the structure survived the explosion and then burned from the fire caused by the blast.

37. Larceny.

38. Since force was necessary to acquire the purse, the crime is robbery.

39. Forgery is the making of a false document (or the alteration of an existing document making it false) with knowledge of its false character and an intent to defraud. No act of using the document need occur. Uttering is the passing of the false document to the victim. The defendant who utters must intend to defraud but need not have participated in making the document. [return to top]

Problems & Critical Thinking Exercises

1. Today, arson includes the burning of any structure; under the common law, arson could be committed only on a home. Causing a building to explode was not arson until made so by statute. Also, under the common law, the fire was required to touch the structure and cause damage. The Model Penal Code

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only requires that the fire be set, accompanied by the requisite mens rea.

The Code does not require that the structure actually be touched by the flame.

2. First, the common law definition of burglary included only dwellings; today, many types of structures may be burglarized. Second, under the common law, the defendant had to ―break‖ into the dwelling. Many statutes have done away with the breaking requirement, only requiring some form of unlawful entry. Finally, the night requirement has been eliminated.

3. Two crimes have been committed: false pretenses and embezzlement. Ned’s acquisition of title to the Corvette constituted false pretenses, as he intentionally used a false statement to convince the couple to give him title to the automobile. The conversion of the trust money was embezzlement since Ned took it during a trust relationship and did not intend to take it until after he had possession.

4. Gary should be charged with criminal mischief for scratching Paige’s car and setting the vehicle on fire. Each of these acts constitutes criminal mischief.

Arson generally applies to buildings only, not to personal property.

5. Kevin has committed larceny, as he took and carried away (asportation) personal property of another with intent to deprive the owner of the property. His sale of the ring—and consumption of the drink—provides proof of his intent. When he picked up the ring, placed it in his pocket, and left with it, the asportation requirement was satisfied. While he also committed trespass, he did not commit a burglary because one must have intent to commit a felony when the breaking occurs. Kevin’s intent was only to steal a soft drink at the time he broke the window and entered the house. In most jurisdictions, the value of cola does not rise to the level of felony-larceny.

The larceny of the ring was likely a felony, but Kevin did not form this intent until he entered the house. Of course, one practical problem Kevin will encounter will be proving that he did not intend to steal the ring when he entered the house. A jury could infer from the circumstances that he did possess such intent, and the jury could then convict him of burglary.

6. Extortion.

7. Robbery/armed robbery.

8. Discussion question. [return to top]

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 6: Crimes Against the Public

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 6: Crimes Against the Public

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 44 Chapter Objectives .................................................................................... 44 Key Terms................................................................................................ 44 Chapter Outline ......................................................................................... 45 Discussion Questions .................................................................................. 51 Review Questions ...................................................................................... 51 Problems & Critical Thinking Exercises ........................................................... 53 Additional Resources .................................................................................. 54 Cengage Video Resources......................................................................... 54 External Videos or Playlist ........................................................................ 54 Internet Resources .................................................................................. 54 Primary Sources ..................................................................................... 54 Cengage Audio Resources ........................................................................ 54 External Audio Resources ......................................................................... 54 List of Transcripts for Audio Assignments .................................................... 54

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 6: Crimes Against the Public

Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss crimes against the public. These crimes have no individual victims. Crimes against the public welfare, social order, and society’s morals will all be discussed. This chapter contains five subsections of crimes against the public, including crimes against public morality, crimes against the public order, crimes against the administration of government, crimes against sovereignty and security, and crimes against the environment.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • • • • • • • • • • • • • • • •

Define, describe, and apply the elements of prostitution and solicitation of prostitution.

Describe deviate sexual conduct crimes and explain how the right to privacy bounds what sex may be criminalized.

Define, describe, and apply the elements of indecent exposure.

Describe the First Amendment test used to determine if expression may be regulated because it is obscene.

Define, describe, and apply the elements of riot and unlawful assembly.

Define, describe, and apply the elements of disturbing the peace.

Define, describe, and apply the elements, and constitutional limits, of inciting lawlessness.

Describe various ways vagrancy is criminalized and the constitutional limitations on these laws.

Describe the Second Amendment’s limitation on the regulation of arms.

Define, describe, and apply the elements of drug and alcohol use and possession crimes.

Describe how the First Amendment limits the authority of governments to protect the dignity and honor of objects and recognitions.

Define, describe, and apply the elements of academic fraud.

Define, describe, and apply the elements of perjury.

Define, describe, and apply the elements of bribery.

Define, describe, and apply the elements of tax evasion.

Define, describe, and apply the elements of obstruction of justice.

Compare and contrast civil, criminal, direct, and indirect contempt.

Define, describe, and apply the elements of treason.

Define, describe, and apply the elements of sedition and espionage.

Define, describe, and apply the elements of terrorism.

Identify and describe three or more environmental crimes or crimes involving animal welfare or cruelty

[return to top]

Key Terms Brandenburg Test

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breaches of the peace bribery contempt fighting words misprision of treason perjury prostitution sodomy subornation of perjury tax evasion tax fraud [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Crimes Against the Public A. Crimes without individual victims 1. Public morality 2. Public order 3. Against administration of government 4. Crimes against sovereignty and security 5. Crimes against the environment B. Crimes against public morality 1. Prostitution—providing sexual services in exchange for compensation a. Illegal in every state except Nevada 2. Solicitation—engaging in selling sex, buying sex, or attempting to buy sex a. A prostitute may be guilty of solicitation and prostitution b. There only needs to be an attempt to sell for solicitation 3. Deviate sexual conduct—includes oral sex, anal sex, and homosexual sex a. Many of these have been decriminalized due to the fact that consenting adults can do what they want with each other b. Incest is prohibited c. Bestiality is still mostly all criminal

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4. Marriage—states can regulate marriage in the fact of who can marry whom, how many may marry, who has authority to marry the couple, when couples may marry, and payment of fees 5. Indecent exposure and lewdness—intentional exposure of one’s private parts in a public place or public way a. The Model Penal Code (MPC) prohibits public indecency—also adds that all lewd acts that the defendant knows are likely to be observed by others who would be ―affronted or alarmed‖ by the acts and indecency 6. Obscenity—First Amendment of the Constitution a. Federal and state government regulate conduct, speech, books, movies, and other forms of expression that are believed to be obscene b. Freedom of speech 1. Roth v. United States (1957) 2. Miller v. California (1973) 3. Unless minors are included, it is usually protected unless it is obscene c. Under the MPC—material is considered obscene if as a whole its predominant appeal is to prurient interest (shameful or morbid) 7. Regulating the Internet a. Communications Decency Act of 1996 1. Limited transmission of ―obscene‖ and ―indecent‖ materials to children b. Child Pornography Prevention Act (1996) 1. Prohibited not only images of children in pornography but also ―virtual‖ images created with computers C. Child Online Protection Act (1998—upheld in 2002) 1. Limited regulation to material that is harmful to minors a. Crimes against the public order 1. Breaches of the peace—all crimes that involve disturbing the tranquility or order of society 2. Riot and unlawful assembly—a threat with immediate ability to execute the threat by a person who is a group of three or more a. Purpose of the assembly is to commit a crime b. Failure to disperse—a group of three or more ordered to disperse and someone refuses

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c. Frequently punished as misdemeanor; elevated to felony if committed with a dangerous weapon 3. Disturbing the peace—illegal public disturbance a. Also referred to as disorderly conduct, excessive noise, affray, or threat b. Often attacked as being unconstitutional c. Fighting words doctrine exception—inflict injury; incite immediate breach of peace; by their nature, will cause a violent reaction by those who hear them d. To be regulated the words must rise to the level of a true threat 4. Inciting lawlessness—one person encourages another to commit an unlawful act or intends to cause a riot a. Only speech that creates a ―clear and present danger‖ may be controlled b. Speech may be controlled if it will likely lead to violence soon or if it threatens immediate security c. Merely advocating unlawful conduct in the abstract is protected 5. Vagrancy and panhandling—today, states may not make personal status a crime; violates the Eighth Amendment a. As population increases, vagrancy will continue to increase 6. Crimes involving firearms—there are possession, transfer, and sale laws a. Firearms use laws—prohibit certain weapons for hunting, prohibit discharging in urban areas, and so forth b. Restrictions on registration and licensing c. Explosive and incendiary weapons—it is criminal to use any explosive and incendiary weapon with the intent to cause harm d. The National Firearms Act—prohibits sale and possession of automatic weapons; requires registration e. Brady Handgun Violence Prevention Act of 1993—requires background checks f. Violent Crime Control and Law Enforcement Act of 1994— prohibits sale of semiautomatic weapons and large ammunition magazines 7. Drug and alcohol crimes—alcohol crimes can include public drunkenness, minors purchasing and consuming alcohol, adults

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who contribute to the delinquency of minors, merchants who fail to comply with state laws, and driving while intoxicated a. Drug crimes—the quantity of the drug involved can affect punishment b. Can include the unauthorized use of a controlled substance as well as illegal drugs c. Can also prohibit the sale, use, and possession of drug paraphernalia D. Respect, honor, and valor—governments enact laws to preserve the dignity and promote respect for sacred objects and institutions 1. America is a free republic 2. Government may not impose a belief upon anyone 3. May enforce viewpoint neutral laws to otherwise protected speech 4. Protect the flag, protect valor of members of the military a. Protect against stolen ―valor‖ E. Academic fraud—some states make it a crime to commit plagiarism or cheat for academic credit F. Crimes against the administration of government 1. Perjury—the making of a false statement with knowledge that it is false while under oath a. Mens rea—person who made the statement knew it was false and it must be made under oath b. Subornation of perjury—related crime of asking or forcing another person to lie under oath c. Truth is a complete defense to perjury 2. Bribery—offering, giving, receiving, or soliciting of anything of value with the purpose of violating a trust or duty a. Most statutes consider unsuccessful offers as bribes b. Offer must be made to a public official or servant; offer alone makes offeror guilty c. The offer alone makes the person guilty of bribery 3. Tax crimes a. Tax fraud—using fraud or false statements to avoid tax obligation b. Tax evasion—paying less tax than required or underreporting one’s income c. Evasion, fraudulent returns, and unauthorized disclosure of information are crimes of commission

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d. Failing to file a return is an act of omission 4. Obstruction of justice—any act that interferes with the performance of a public official’s duties a. Tampering with witnesses or jurors, interfering with police officers, destroying evidence, and intentionally giving false information to a prosecutor 5. Contempt—a willful disobeying of a judge’s command or official court order a. Indirect—takes place outside court b. Direct—takes place in the presence of a judge c. Criminal contempt is used to punish a person for violating a court order d. Contempt power is significant e. Legislators can also cite for contempt G. Crimes against sovereignty and security 1. Treason—person who owes allegiance to the United States a. Levies war or adheres to an enemy of the United States b. Commits an overt act with reasonable intent c. This includes citizens of the United States and other non-citizens and residents as well d. Two forms of treason 1. Levying war against the United States 2. Adhering to the enemy of the United States, giving them aid or comfort 2. Sedition and espionage—sedition is when two or more persons in any state or territory conspire to overthrow, or destroy by force the government of the United States or to levy war against them, or by force to prevent, hinder, or delay the execution of any law of the United States or by force to take, seize, or possess any property of the United States contrary to the authority thereof a. They involve violence b. Most of these offenses require either intentionality or reason to believe the United States will be injured and an overt act in furtherance of the crime 3. Terrorism—federal law authorizes the Secretary of State to designate any foreign group of two or more persons that commit terrorist activities or plan or prepare to commit terrorist activities. a. Examples of terrorist acts

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Bioterrorism

–

Bombing public places

–

Attacking mass transportation systems

–

Harboring terrorists

–

Using weapons of mass destruction

H. Crimes against the environment 1. Modernization threatens the environment in several ways 2. Two classes of environmental laws a. One—intends to further the public health and safety b. Two—to protect the environment itself c. Corporations may be charged with violations 3. Clean Water Act a. Regulates discharge of pollutants into nation’s navigable waters b. Establishes a scheme of permits and reporting 4. Clean Air Act a. Regulates emissions b. Knowing endangerment and false reporting provisions 5. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) a. Also known as Superfund b. Identify/clean up existing hazardous waste sites 6. Resource Conservation and Recovery Act—regulate da-to-day usage, storage, transportation, handling, and disposal of hazardous waste 7. Occupational Safety and Health Act—regulates the work environment for safe working conditions 8. Toxic Substances Control Act—regulates sale, manufacture, development, processing, distribution, and disposal of toxic substances 9. Federal Insecticide, Fungicide, and Rodenticide Act—applies to chemicals used to combat pests 10. Emergency Planning and Community Right-to-Know Act 11.Endangered Species Act—a program of conservation of threatened and endangered species of plants and animals and the habitats where they are found 12. Marine Mammal Protection Act

a. To protect and conserve marine animals

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b. Intent is to preserve the integrity of the environment 13. There are numerous other laws in place to protect the treatment of

animals

a. To protect against cruelty, abandonment, neglect, and bestiality b. Federal government as well as states regulate treatment of animals [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the class into groups and have them create an advertisement that seems obscene on its face but is protected under the First Amendment. Have them explain why it is protected even though it seems like it should not be.

2. Have the students come up with a situation in which fighting words might be protected (example self-defense, during an attack, etc.).

3. Have the students research old cases regarding indecent exposure. See who can come up with the most bizarre case and discuss why it would probably not stand in this day and age.

4. Assign the students a research project to find a well-known case of bribery. It could involve sports, sports teams, public officers, and so on. Which bribery laws would apply to their situation, and why?

5. Have the students look up the criminal punishments for contempt of court. What is the average punishment? When does contempt usually occur? Can they think of situations where contempt would be appropriate?

Review Questions

40. Solicitation.

41. No. In Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court

held that no such right exists in the Constitution.

42. Both the federal government and the states are prohibited by the First

Amendment from regulating expression, even if such expression is thought to be sexually repulsive, unless it is obscene. In Miller v. California, 413 U.S. 15 (1973), the test for obscenity was set out as follows: i. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. ii. The work must depict or describe, in a patently offensive manner, sexual conduct specifically defined by the applicable state law. iii. The work, when taken as a whole, must lack serious literary, artistic, political, or scientific value.

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43. Fighting words are words that are likely to cause an immediate breach of the

peace or a violent reaction by those who hear them. Fighting words are not protected speech under the First Amendment.

44. No. While blood-alcohol tests are common, driving under the influence may be proved by field sobriety tests, videotape of the defendant at the time of arrest or immediately thereafter, or other means. Statutes provide that anyone who is unable to operate a vehicle safely, due to alcohol or drugs, is guilty of driving under the influence. Blood-alcohol levels, which are established by statute, create an irrefutable presumption of one’s inability to operate a vehicle safely.

45. Continuing Criminal Enterprise is aimed at ―drug kingpins.‖ Its elements are (1) the defendant is an organizer, administrator, or other leader of (2) a group of five or more people (3) who are involved in a series of drug violations. Series has been defined by case law as three or more violations.

46. The basic elements of bribery are (1) soliciting or accepting (2) anything of value (3) with the purpose of (4) violating a duty or trust. The Model Penal Code addresses bribery of public officials and bribery that takes place in commercial situations.

47. The purpose of civil contempt is to coerce someone into future behavior. The purpose of criminal contempt is to punish someone for violating a prior court order. Any contemptuous act that occurs before a judge is direct contempt.

Acts that occur outside the presence of a court are indirect.

48. No, it is not true. Perjury laws apply to many documents and statements.

Statutes provide that any false statement a person makes while under oath before an authorized official is perjury. This applies to many situations, such as testifying before a legislative body and signing a document before a notary.

49. The elements of indecent exposure are (1) exposure of (2) one’s private parts (3) in a public place.

50. The elements of treason as defined in 18 U.S.C. § 2381 are (1) a person who owes an allegiance to the United States, (2) levies war or adheres to an enemy of the United States and (3) commits an overt act and (4) possesses treasonable intent.

51. The Patriot Act expanded federal authority in the following ways. Students should list two of them.

• The authority of federal law enforcement officers to monitor e-mail and other forms of communication was expanded, for example, in the treatment of stored voice mail messages as e-mail, not as telephone conversations. E-mail enjoys less protection than telephone conversations do.

• Federal court authority was broadened to issue pen register and trap orders (devices used to determine the origin of electronic communications).

• Prior to the Patriot Act, law enforcement officers were not required to establish probable cause in order to obtain a court order directing a telephone company to trace (using pen register/traps). Because the content of telephone conversations was not being intruded upon, law enforcement officers were only required to show that the data was

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•

•

• •

―relevant to an ongoing investigation.‖ The Patriot Act extended this procedure to obtaining a record of Web addresses a suspect visits, even though identification of a Web address also identifies content.

The Patriot Act authorizes ―roving wiretaps.‖ A roving wiretap is authorization to move a wiretap from one telephone or form of communication to another in order to follow the communications of the person under surveillance.

Several new crimes were created, including money laundering of cybercrime and terrorism, overseas use of fraudulent U.S. credit cards, terrorist attacks on mass transit, and harboring of terrorists. The act also increased the penalties for counterfeiting.

The Attorney General of the United States was delegated greater authority to deport suspected alien terrorists.

Law enforcement agencies were given the authority to share grand jury and wiretap information that constitutes ―foreign intelligence‖ with intelligence agencies. Previously, this action had not been permitted.

[return to top]

Problems & Critical Thinking Exercises

1. Statute I is sufficiently specific. Statute II is unconstitutional, as it makes personal status a crime. The Supreme Court found a similar statute unconstitutional in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) because it violated the Due Process Clause by failing to provide fair notice of acts that constituted crimes.

2. The U.S. Supreme Court has held that a person may not be punished for possessing obscene materials in the home. Herb may not be convicted. Due to lack of mens rea, it is likely that Sam will not be convicted. The statute requires that Sam had knowledge that the magazine contained bestiality when he sold it. Since the magazine was sent to him in error and its contents were not visible, it is unlikely that he would be convicted. Under the Model Penal Code, knowledge equates to ―practical certainty.‖ The fact that the magazine was entitled ―Wild on the Farm‖ does not create a ―practical certainty‖ that the magazine contained depictions of bestiality.

3. Individual answers may vary; however, reasons should be substantiated.

4. Originally, bribery referred to judges, but statutes extend it to commercial and public officials only.

5. Direct/criminal.

6. Indirect/civil.

7. Indirect/civil.

8. Answers may vary. Students should be encouraged to support their reasons with examples from the chapter.

9. Discussion question.

[return to top]

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Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

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Primary Sources •

[list]

Cengage Audio Resources •

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External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 7: Parties and Inchoate Offenses

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 56 Chapter Objectives .................................................................................... 56 Key Terms................................................................................................ 56 Chapter Outline ......................................................................................... 56 Discussion Questions .................................................................................. 58 Review Questions ...................................................................................... 59 Problems & Critical Thinking Exercises ........................................................... 59 Additional Resources .................................................................................. 60 Cengage Video Resources......................................................................... 60 External Videos or Playlist ........................................................................ 60 Internet Resources .................................................................................. 60

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Primary Sources ..................................................................................... 60 Cengage Audio Resources ........................................................................ 60 External Audio Resources ......................................................................... 60 List of Transcripts for Audio Assignments .................................................... 60

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss crimes committed by more than one person as well as crimes that are incomplete or inchoate. You will learn about which parties to the crime are guilty for what, and at which step of the process each becomes guilty. You will also explore how a party to a crime can keep from being liable by such things as mistake or abandonment.

Chapter Objectives

The following objectives are addressed in this chapter: • • • •

Define, describe, and apply the traditional four parties to crimes.

Define, describe, and apply the elements of attempt.

Define, describe, and apply the elements of conspiracy.

Define, describe, and apply the elements of solicitation.

[return to top]

Key Terms accessory attempt co-conspirator hearsay rule concert of action rule conspiracy hearsay legal impossibility principal solicitation Wharton’s Rule [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Parties to a Crime A. Principal in the first degree—the participant who commits the actus reus of the crime 1. The principal in the first degree may commit an offense and not be guilty of it 2. Example: self-defense, excused crimes

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B. Principal in the second degree—party who aids, counsels, assists, or encourages principal in the first degree but does not commit the actus reus of the crime 1. Constructive presence is sufficient 2. Also referred to as accomplices C. Accessory—a person who helps commit a crime without being present 1. Accessory after the fact—a person offers aid or shelter to a criminal with the purpose of assisting the criminal in avoiding arrest after the crime is committed and was not present during the crime 2. Mental state required is twofold a. The defendant must be aware of the person’s criminal status and b. The defendant intended to hinder attempts to arrest the criminal II. Incomplete (Inchoate) Crimes A. Attempt 1. Defendant must intend to commit a crime 2. Defendant must act in furtherance of that intent 3. Crime is not completed 4. Not a crime at early common law 5. There are four tests used to determine if acts are close enough to completion to permit an attempt conviction a. Proximity test—what acts have been taken and which are left to complete b. Res ipsa loquitor test—looks at crimes individually and finds an act, a certain point in time, which indicates that the defendant has ―no other purpose than the commission of that specific crime.‖ c. Probable desistance test—focuses on the likelihood that the defendant would have followed through with the crime had the opportunity existed d. Model Penal Code test—the substantial completion test 1. The conduct in question must ―strongly corroborate‖ the actor’s criminal purpose e. Regardless of which test is applied, if a defendant has a change of heart and does not complete the crime, even after crossing the line, abandonment may be a valid defense B. Defenses to attempt 1. Abandonment—if the defendant has a change of heart and does not complete the crime, abandonment may be a valid defense

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a. abandonment must be voluntary 2. Legal impossibility—defendant believes their acts are illegal, but they are not a. Cannot be guilty of anything since there is no crime 3. Factual impossibility—attempt to commit a crime but it is impossible to do so a. Can still be liable for the crime because they had the requisite mens rea to commit the crime C. Conspiracy—agreement between two or more persons to commit an unlawful act or a lawful act in an unlawful manner 1. Actus reus—the agreement 2. Mens rea—the intent (must have intent to enter the agreement) and conspirators must possess a specific intent to commit an unlawful act or a lawful act in an unlawful manner 3. Specific intent 4. Co-conspirator hearsay rule—statements made by a member of a proven conspiracy may be used as evidence against any members of the conspiracy 5. Wharton’s Rule (concert of action rule) a. Two people cannot be charged with conspiracy when underlying offense itself requires two people D. Solicitation—encouraging, requesting, or commanding of another to commit a crime 1. Specific-intent crime 2. Actus reus—the solicitation itself—no other conduct required [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Have the students create a scenario in which coming up with a plan to commit a crime crosses over into an actual crime. What if they tell someone else about the plan and they agree with it? What do the parties each have to do to be guilty of something?

2. Have the students research hearsay and why it is normally prohibited. Why is the co-conspirator hearsay exception rule so unique? Do they agree with it?

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3. Break the students into groups and have one group be the accessories and one group the co-conspirators. Each group shall argue that they are not as guilty as the other group and give facts as to why. Can a person be both a co-conspirator and an accessory?

Review Questions

52. A principal in the first degree is the party who actually commits the crime. A

principal in the second degree is present during the crime and assists the principal in the first degree. They are punished equally.

53. An accessory before the fact.

54. No. Thoughts are not criminal acts. Jan must take some act in furtherance of her objective for an attempt to exist.

55. The elements of conspiracy are that there must be (1) an agreement (2) between two or more people (3) to commit an unlawful act or a lawful act in an unlawful manner.

56. In evidence, hearsay is an out-of-court statement. As a general rule, hearsay is inadmissible. The co-conspirator exception permits statements made by co-conspirators to be admitted at trial, provided the statements were made during the conspiracy.

57. Inchoate crimes refer to acts that have a purpose, and even though that purpose is not accomplished, the acts are criminal.

58. Solicitation requires a request, a command, or an urging of another to commit a crime. No act in furtherance of the criminal objective need be taken for there to be solicitation. Attempt, on the other hand, requires that some act be taken in furtherance of the criminal objective. The jurisdictions differ in how far a person must go; however, mere preparation is not enough. [return to top]

Problems & Critical Thinking Exercises

1–2.

Abel and Baker have committed the same crimes. First, they conspired to rob the store while in prison. Second, they committed solicitation by engaging the service of Nitro. Third, they attempted robbery. The acts of buying the materials necessary to construct the bomb, constructing the bomb, and going to the store are beyond preparation. Although not covered in this chapter, burglary and possession of burglary tools also may have been committed.

3. Nitro is a conspirator. As an accessory before the fact, he is liable for attempted robbery. By providing the house, Nitro also is an accessory after the fact.

4. John has committed attempted murder, as he possessed the requisite mens rea and committed the acts necessary to complete a murder. An interesting case that illustrates this point is People of New York v. Dlugash, 41 N.Y. 2nd 725 363 NE2d 1155 (1977).

[return to top]

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Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 8: Factual and Statutory Defenses

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 62 Chapter Objectives .................................................................................... 62 Key Terms................................................................................................ 62 Chapter Outline ......................................................................................... 63 Discussion Questions .................................................................................. 68 Review Questions ...................................................................................... 68 Problems & Critical Thinking Exercises ........................................................... 69 Additional Resources .................................................................................. 70 Cengage Video Resources......................................................................... 70 External Videos or Playlist ........................................................................ 70 Internet Resources .................................................................................. 70

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Primary Sources ..................................................................................... 70 Cengage Audio Resources ........................................................................ 70 External Audio Resources ......................................................................... 70 List of Transcripts for Audio Assignments .................................................... 70

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss the different types of defenses available to defendants. You will learn about the differences in legal defenses and factual defenses. A large part of the chapter is devoted to affirmative defenses in which the defendant has the burden of proof and has to raise before trial. Insanity, selfdefense, duress, necessity, infancy, intoxication, mistake, entrapment, alibi and consent, and statutes of limitation are all discussed.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • • • • •

Define and distinguish factual, legal, and affirmative defenses.

Define, compare, and contrast the M’Naghten, Irresistible Impulse, Durham, and Model Penal Code tests for insanity.

Define, describe, and apply the elements of the duress and necessity defenses.

Define, describe, and apply the elements of self-defense and defense of others, including the Retreat Doctrine, Castle Doctrine, and Stand Your Ground Doctrine.

Describe the evolution of how infancy impacted criminal culpability from the Common Law to modernity.

Describe how intoxication during the commission of a crime affects criminal culpability.

Define, describe, and apply the elements of mistake of fact and mistake of law.

Define, compare, and contrast the subjective and objective entrapment defenses.

Define, describe, and apply the alibi and consent defenses.

[return to top]

Key Terms affirmative defense alibi battered woman syndrome burden of persuasion burden of production burden of proof castle doctrine consent diminished capacity duress Durham rule entrapment

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irresistible impulse M’Naghten rule necessity prima facie retreat to the wall doctrine/retreat doctrine self-defense stand your ground doctrine statute of limitation [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Affirmative, Legal, and Factual Defenses A. Assert their innocence 1. Complete defense 2. Partial defense 3. Factual 4. Statutory (legal) B. Affirmative defenses—go beyond a simple denial 1. Raises special and new issues 2. Burden of production—on defendant—they must produce evidence to support the defense 3. Only needs to be minimal 4. Burden of persuasion—convince the factfinder that the defense is true 5. Defendant has to establish a prima facie case C. Insanity defense—incapable of forming a rational purpose or intent 1. It is a mens rea defense 2. Diminished capacity—direct attack on mens rea element a. Separate from a defense of insanity b. If successful, could result in conviction of lesser crime c. Defendants don’t have to defend themselves (Fifth Amendment)

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d. Theory behind insanity defense is that no penological purpose is satisfied by punishing the insane 3. Four test to test for insanity a. M’Naghten test—at the time the act was committed, the defendant was suffering from a defect of reason, from a disease of the mind, that caused the defendant to not know the nature and quality of the act taken or the fact that the act was wrong 1. Right–wrong test 2. Used by most jurisdictions today b. Irresistible impulse test—loss of control due to insanity so great that person cannot stop from committing a crime 1. Even if defendant knew the behavior was wrong 2. They were unable to control their behavior 3. Problem comes from distinguishing acts that can be resisted from those that cannot c. Durham rule—acquittal if defendant would not have committed the crime if they had not been suffering from mental disease or defect 1. Today it is only used in New Hampshire d. The Model Penal Code test (substantial capacity test)—requires that mental disease or defect impairs a defendant’s ability to appreciate the wrongfulness of their act 1. Requires only substantial impairment 2. Uses the term appreciate rather than know 3. Drafters intended more than knowledge 4. Irresistible impulse concept 4. Guilty but mentally ill concept—a finding of mental illness at the time of the crime but not insanity as defined by the applicable legal test a. Created to limit reach of insanity defense b. Four states have completely abolished the insanity defense: Idaho, Montana, Utah, and Kansas c. John Hinckley Jr. case d. Defendant is both punished and treated as a result 5. Procedures for the insanity defense a. Affirmative defense b. Notice to the court and government that insanity will be used as a defense c. Psychiatric examination; expert witness

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d. Defendant’s burden of production 6. Disposition of the criminally insane—insane are not immediately and automatically released a. Question is if they are still dangerous b. Model Penal Code approach requires automatic commitment c. Court determines whether commitment is ordered (person is considered dangerous); if not then they are released d. Defendant has burden of proving by clear and convincing evidence that a risk to people or property is not created by release 7. Insanity at the time of trial—defendant may not be tried; committed until competent a. Due process requires that defendants be able to assist in their defense and understand the proceedings b. Defendants must be rational, possess the ability to testify coherently, and be able to meaningfully discuss their cases with their lawyers c. Mistrial declared if the defendant becomes incompetent during trial d. A person sentenced to death who then becomes insane cannot be put to death until competency is regained D. Duress—defendant must show that they were threatened and held a reasonable belief that the only way to avoid serious personal injury or death to oneself or others was to commit the crime 1. Statutory defense used today 2. Have to show actual threat was made 3. Not a defense to claim one was carrying out orders of a superior 4. Duress is not a defense to homicide E. Necessity—requires an action that would otherwise be illegal or expose one to a tort liability 1. Comes about by natural forces; human pressure is not involved 2. Applies anytime a person is confronted with the task of choosing between two or more evils 3. Can be harm to property, does not have to be harm to physical body 4. If an alternative existed that involved less harm, defense is invalid 5. Duress and necessity are perfect defenses, so when valid, they result in acquittal of all charges

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F. Use of force defenses—self-defense—the person was confronted with an unprovoked immediate threat of bodily harm and the force was necessary to avoid the harm and that the amount of force was reasonable 1. One who initiates an attack on another generally cannot claim selfdefense 2. The threat of harm must be immediate in most jurisdictions 3. Retreat-to-the-wall doctrine—retreat before using deadly force 4. Castle doctrine—no obligation to retreat from your home before using deadly force against an intruder 5. Stand-your-ground laws—may use deadly force without retreating G. Force defenses—defense of others—must be a threat of immediate danger H. Force defenses—defense of property and habitation—deadly force may not be used 1. No force is reasonable if other methods of protection are available I. Imperfect self-defense—a mens rea defense 1. Person cannot make a successful self-defense claim, but because they lacked malice aforethought, crime is manslaughter 2. Applies only to homicides J. Arrests—resisting unlawful arrests 1. Prohibits resistance to an arrest by a law enforcement officer 2. Arrests by law enforcement officers a. Reasonable force allowed b. Tennessee v. Garner (1985) 3. Arrests by citizens a. Anytime probable cause exists to believe that the person has committed a felony b. Rules exist to provide citizens who make such arrests with immunity from civil and criminal prosecution K. Infancy—at common law, children under 7 were incapable of forming the requisite mens rea to commit a crime 1. Rebuttable presumption of incapacity existed for those between 7 and 14 years of age 2. Overcome for those between 7 and 14 if prosecution can prove that the defendant understood that the criminal act was wrong 3. Few minors are charged with crimes today

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4. Juvenile courts generally have exclusive jurisdiction over criminal behavior of juveniles 5. Purpose of juvenile systems is reform, not punishment L. Intoxication—voluntary intoxication—defense if it has the effect of negating the required mens rea 1. Not all states recognize this as a defense 2. Involuntary intoxication a. Defendant is relieved of liability entirely (rare) M. Mistake—mistake of law—one may believe that some act is legal when it is not 1. Generally not recognized as a legitimate defense 2. Exceptions when allowed: a. When the law wasn’t published or made reasonably available to the public or b. When the defendant relied on a statute, judicial decision, or official interpretation of the law by an appropriate public official, even though that law or interpretation is later found to be wrong.

N. Mistake—mistake of fact—person may not understand all the facts of a given situation 1. Generally a legitimate defense when it negates the mens rea aspect of a crime, but mistakes must be made honestly and in good faith O. Entrapment—law enforcement officers encourage a person to commit a crime with the intent of arresting and prosecuting that person for commission of that crime 1. Perjury traps 2. Defense of recent development 3. Two tests used to determine entrapment: a. Subjective test—prior criminal history may be presented to demonstrate predisposition 1. Used in federal system and most widely by states b. Objective test—does not focus on prior history or predisposition 1. Use by the Moral Penal Code P. Factual defenses—alibi—claim by a defendant that they were not present at the scene of the crime at the time the crime was committed 1. Refuting the government’s claims 2. Defendant required to give notice of the alibi claim prior to trial

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Q. Factual defenses—consent—defense to some crimes, such as rape and larceny 1. Not a defense to crimes such as statutory rape, incest, child molestation, battery, and murder R. Statute of limitations—federal and state statutes prescribing the maximum period of time during which various types of civil actions and criminal prosecutions can be brought after the occurrence of the injury or the offense 1. Vary in length—the higher the crime, the longer the statute 2. Begin at the time the crime occurs a. Tolling refers to stopping the clock b. Once the statute runs out on a lesser offense but not the higher offense, the defendant may still be tried for the higher one c. Murder has no statute of limitations [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text —they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Give the students a scenario where a defendant is charged with a crime and is pleading insanity. Have four groups, and each group represents one of the four tests to determine insanity. Have each group argue the facts and whether it constitutes insanity under their test. Also ask them which they think is more appropriate after all the groups are finished.

2. This one may get emotional, but ask the students if they think deadly force is justified to defend one’s pet from being harmed. How does it differ from defending another person?

3. Ask the students to think of an example on television or a movie where they have seen entrapment. (There are tons.) Ask what the officers should have done differently to prevent the entrapment. Where do they think the line should be drawn in questioning to get information they want?

4. Ask the students to research a case where the person was found not guilty by reason of insanity and then it later appeared the person was in fact sane. A high- profile case, perhaps? Discuss.

Review Questions

59. Affirmative defenses are special defenses. An affirmative defense is more

than a denial of the alleged facts; it provides assertion(s) that require special

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attention by the prosecutor. Alibi and self-defense are examples of affirmative defenses. Affirmative defenses are significant because notice to the prosecutor that one intends to rely on such a defense is often required, and defendants often bear some burden of proof related to production or persuasion.

60. The elements of the M’Naghten test are (1) at the time the act was committed, (2) the defendant was suffering from a disease of the mind (3) that caused the defendant not to know the nature and quality of his or her act or that the act was wrong. The irresistible impulse test adds the following to the M’Naghten test: The defendant is not guilty if a disease of the mind causes the defendant to be unable to control his or her behavior. The Model Penal Code (§ 4.01) states that a person is not responsible for his or her acts if he or she lacks substantial capacity to appreciate the wrongfulness of the act or to control his or her conduct.

61. The following must be proven: (1) the defendant was the subject of an unprovoked attack (2) posing an immediate threat of bodily harm; (3) force was necessary to protect from the attack; and (4) the amount of force used was reasonable.

62. All people except police officers are required to retreat from an attack before using deadly force. Retreat is required only when it is safe.

63. Imperfect self-defense applies only to homicides and situations in which a person is unable to successfully claim a perfect self-defense. It applies in two situations: First, whenever one uses deadly force but is unreasonable in doing so, as long as the defendant used the force in good faith, the requisite mens rea for murder is absent. The crime is manslaughter, not murder.

Second, whenever a defendant initiates an attack and then later justifiably uses deadly force, the crime is manslaughter.

64. Deadly force may be used when the suspect is a felon and poses a danger to the police or others.

65. Entrapment occurs when a law-enforcement officer encourages a person to engage in a crime. The objective test focuses on the conduct of the police.

The subjective test focuses on the predisposition of the defendant to become involved in the crime.

66. Insane defendants may not be tried. A defendant is insane if he or she is incapable of assisting in the defense of the case.

67. The time period following the commission of a crime wherein a prosecution must be initiated.

68. Legal impossibility occurs when a defendant believes his or her acts are illegal when they are not. No liability exists. Factual impossibility refers to a situation where an individual attempts to commit a crime, but the facts have made the crime impossible. Both intent and actions exist, and in some circumstances the accused may have believed that a crime was committed.

Liability exists. [return to top]

Problems & Critical Thinking Exercises 1. Discussion question.

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2. Ira would not have a successful insanity defense in an M’Naghten jurisdiction because he understood the nature and quality of his act and knew that the act was wrong. However, he would be successful in both jurisdictions using the Model Penal Code and irresistible impulse tests.

3. Jane is likely to be successful with the defense of necessity.

4. Gary may assert an imperfect self-defense, which leaves him with manslaughter. He is not entitled to a complete self-defense because he initiated the violence. [return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 9: Constitutional Defenses

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 72 Chapter Objectives .................................................................................... 72 Key Terms................................................................................................ 72

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Chapter Outline ......................................................................................... 73 Discussion Questions .................................................................................. 77 Review Questions ...................................................................................... 78 Problems & Critical Thinking Exercises ........................................................... 78 Additional Resources .................................................................................. 79 Cengage Video Resources......................................................................... 79 External Videos or Playlist ........................................................................ 79 Internet Resources .................................................................................. 79 Primary Sources ..................................................................................... 79 Cengage Audio Resources ........................................................................ 79 External Audio Resources ......................................................................... 79 List of Transcripts for Audio Assignments .................................................... 79

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Instructor Manual: Hall, Criminal Law 2023, 9780357619339; Chapter 9: Constitutional Defenses

Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss all constitutional defenses available to defendants. You will also learn about when laws are struck down for various reasons and what rights are protected by the Constitution and when those can be used as a defense.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • • • • • •

Define and describe the double jeopardy right.

Define and describe the right to be free of self-incrimination.

Define and describe the substantive due process and equal protection rights of the Fifth and Fourteenth Amendments.

Describe and provide examples of vague and overbroad criminal laws.

Describe and apply the strict scrutiny, intermediate, and rational basis tests of constitutional review.

Describe and offer examples of ex post facto laws and bills of attainder.

Define and describe the two religion clauses of the First Amendment, offering examples of how they have been applied in criminal law.

Define and describe the Free Speech Clause of the First Amendment, offering examples of how it has been applied in criminal law.

Describe the evolution of the right to privacy, including the specific rights that have been recognized by the Supreme Court.

Describe the Privileges and Immunities Clause, including the specific rights that have been recognized by the Supreme Court.

[return to top]

Key Terms bill of attainder Double Jeopardy Clause dual sovereignty doctrine ex post facto law overbreadth principle of legality rational relationship test state action doctrine strict scrutiny substantial relationship test suspect classifications transactional immunity use immunity

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vagueness [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Constitutional Defenses—Double Jeopardy A. Fifth Amendment right—No person shall be subject for the same offense to be twice put in jeopardy of life or limb B. Double Jeopardy Clause prevents: 1. A second prosecution for the same offense 2. A second punishment for the same offense C. An acquittal is final D. Attachment of double jeopardy 1. Defendant must plead guilty 2. After jury is selected and sworn in jury trials 3. After first witness is sworn in, in bench trials 4. Once double jeopardy has attached, the defendant may not be tried again E. Exceptions to double jeopardy 1. Properly declared mistrial 2. Charges dismissed before jeopardy attaching 3. The Supreme Court has also held that double jeopardy does not bar correcting a sentence on appeal or rehearing because such a procedure is not retrial of an ―offense‖ 4. The Double Jeopardy Clause is fully applicable to the states through the Fourteenth Amendment. However, the clause does not prevent second punishments for the same offense by different sovereigns.

II. Self-incrimination—The Fifth Amendment states that no person ―shall be compelled in any criminal case to be a witness against himself‖ A. Prohibits the government from compelling people to testify when incrimination is possible B. If a witness refuses to testify because of the fear of self-incrimination, the government may offer them immunity

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III. Immunity—Two Types of Immunity A. Transactional immunity—shields the witness from prosecution for all offenses related to their testimony 1. Gives more protection to the witness than is required by the Constitution B. Use immunity—minimum immunity provided to overcome a Fifth Amendment claim 1. Prohibits government from using the witness’s testimony or any evidence derived from that testimony to prosecute the witness 2. Evidence that is independently obtained may be used against the witness C. Some states permit prosecutors to give the immunity and others require both the request of the prosecutor and approval of the judge IV. Due Process and Equal Protection A. Due process—the Constitution prohibits the government from depriving a person of life, liberty, or property without due process of law 1. Requires the government to treat people fairly 2. Substantive—source of important substantive rights, like privacy 3. Procedural a. Constitutional source of the principle of legality B. Equal protection—the government should treat all people fairly 1. Equal Protection Clause a. Fourteenth Amendment expressly requires states to extend equal protection of the laws to the people b. Court has found equal protection implied in the Due Process Clause c. Requires that indigent defendants receive appointed counsel 2. Discrimination is not inherently evil a. Classifications must be based on meaningful criteria V. Vagueness and Overbreadth A. Vagueness—a statute is void for vagueness whenever ―people of common intelligence must necessarily guess at its meaning and differ as to its application‖ 1. If the police or courts are given unlimited authority to decide who will be prosecuted, the statute is invalid 2. Cannot just prohibit ―annoying conduct‖ as it is too vague

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3. Basis is found in the Fifth and Fourteenth Amendments B. Overbroad—a statute is void for overbreadth if it attempts to punish speech or conduct that is protected by the Constitution, and it is impossible to eliminate the unconstitutional part of the law without invalidating the whole law 1. A law can be overbroad but not too vague—it does not have to be both VI. Analyzing Constitutional Claims A. Three tests used to determine if due process or equal protection laws are being violated B. First test is strict scrutiny—the most difficult for the government to pass 1. Applied when the government burdens a fundamental right and 2. When the government groups people into suspect classes 3. Has to prove a compelling interest, the law is narrowly tailored to satisfy its interest, and it is the least restrictive way to accomplish the objective C. Rational relationship test—used when laws don’t burden individual rights and don’t classify along suspect lines 1. Must be related to a legitimate government interest D. Substantial relationship test—used when rights are encroached on and when classifications are made upon criteria that have been the subject of discrimination but not to the extent of race, ethnicity, or religion 1. The law must further a substantial/important governmental interest and 2. There is a substantial relationship between the interest and the law to be constitutional VII.

Ex Post Facto and Bill of Attainder

A. Ex post facto law—a law made ―after the fact‖ 1. Government may not make criminal law retroactive if doing so is detrimental to the defendant 2. Advances the notice theory (due process) 3. Prevents malicious legislative action from being taken against a particular person 4. Changes the procedural rules so as to increase the chances of conviction after the crime occurs 5. If changes would benefit defendant, they can be made 6. Legislative amnesty

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7. Legislative amelioration B. Bill of attainder—legislative act pronouncing a person guilty without a trial and sentencing the person to death and attainder 1. Now prohibited by the Constitution 2. Reinforces separation of powers VIII.

First Amendment and Religion

A. Freedom of religion is found in two parts of the First Amendment B. Free Exercise Clause—all people are free to choose and practice a religion 1. Commits government to religious tolerance C. Establishment clause—all people are to be free from an established religion 1. Some aspects of religion may be regulated such as the Mormon practice of polygamy, parent refusing medical intervention to save a child, etc.

2. Religious Freedom Restoration Act of 1993—through this statute, courts are required to apply the strict scrutiny test when applying statutes of general applicability to religious practices. So, a government must demonstrate both a compelling reason and that there is no less restrictive way to accomplish the governmental objective 3. COVID 19 issues revolving around restricting religious gatherings IX. First Amendment and Speech A. The Constitution limits all three branches of government, as well as state and local governments, from abridging free speech B. Includes more than spoken words, though 1. Nonverbal, artistic, written, digital, and visual included C. Must be narrowly tailored and supported by a compelling governmental interest 1. Not all speech is protected a. Clear and present danger b. Fighting words, obscenity, some threats c. Slanderous and libelous statements, prejudicial statements D. Expression of ideas protected 1. Picketing 2. Flag burning

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3. Wearing armbands to protest war X. Privacy and Other Rights A. Right to privacy comes from: 1. First, Fourth, Fifth, Ninth, and Fourteenth Amendments a. Griswold v. Connecticut (1965) b. Abortion cases Roe v. Wade (1973) B. Court has struck down prohibitions on availability of contraception C. It is the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person, as the decision whether to bear or beget a child D. U.S. Constitution does not expressly protect privacy 1. Bill of Rights a. ―. . . penumbras, formed by emanations from those guarantees that help give them life and substance . . .‖ 2. The Court extended the right to privacy to adults who engage in deviate sexual behavior consensually 3. Same-sex couples may now legally marry XI. Privileges and Immunities A. Fourth Amendment Privileges and Immunities Clause 1. Prevents states from discriminating against citizens of other states B. Fourteenth Amendment Privileges or Immunities Clause 1. Prevents states from abridging any person, local or not, from exercising federally secured rights 2. Any time a statute conflicts with a constitutionally protected activity, the statute will fail unless the government has a compelling interest [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Have the students break into groups and come up with a law that is overbroad but not too vague. Have them decide how they could narrow it to be valid on both counts.

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2. Have the students research and decide if there is ever a crossover between the two religious clauses of the First Amendment. Does a law ever breach both the Free Exercise Clause as well as the Establishment Clause? Can they think of any laws or articles they have read about of a breach of either one or what happened as a result of it?

3. Going along with discussion question 2—how far should the government go in allowing freedom of religion and accommodation for such in prison? (Examples: giving time to pray at set times of the day, fasting, facial hair, etc.)

4. Break the students into groups. Have one group be witnesses in an upcoming high-profile criminal case. They are afraid for their life since the case involved organized crime. You have given them transactional immunity. Have them discuss whether they can be forced to testify and if use immunity is given, would that be good enough? Do the students agree that witnesses should be forced to testify if given immunity? Don’t many get killed after doing so?

Review Questions

69. A statute is vague if ―men of common intelligence must necessarily guess at

its meaning and differ as to its application.‖ A statute is overbroad if it criminalizes not only unprotected conduct but also conduct protected by the Constitution.

70. A bill of attainder is a legislative act that punishes a person without the benefit of a judicial trial. An ex post facto law is a legislative enactment that makes an act criminal after it has been taken. It is also ex post facto to increase the penalty of a crime after it has occurred or to change the procedural rules (to the defendant’s disadvantage) after the criminal act was taken.

71. No. Yes. 72. No. 73. Fourteenth.

74. No. Yes. 75. All are protected. [return to top]

Problems & Critical Thinking Exercises

1. Discussion question.

2. The U.S. Supreme Court has upheld the right of the Amish to refrain from compulsory school attendance. In such cases, a balance between the state’s interest and the First Amendment rights at issue must be struck. The fact that the defendants provide education to their children is important.

3. Discussion question.

4. Discussion question.

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Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 10: Introduction and Participants

Table of Contents

Purpose and Perspective of the Chapter ......................................................... 81 Chapter Objectives .................................................................................... 81 Key Terms................................................................................................ 81 Chapter Outline ......................................................................................... 81 Discussion Questions .................................................................................. 86 Review Questions ...................................................................................... 86 Problems & Critical Thinking Exercises ........................................................... 87 Additional Resources .................................................................................. 87 Cengage Video Resources......................................................................... 87 External Videos or Playlist ........................................................................ 87 Internet Resources .................................................................................. 87

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Primary Sources ..................................................................................... 87 Cengage Audio Resources ........................................................................ 87 External Audio Resources ......................................................................... 87 List of Transcripts for Audio Assignments .................................................... 87

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss an overview of the entire criminal justice system and how it works. How do you bring an alleged criminal to justice from start to finish? The second half of the book will discuss the entire process. This chapter focuses on the different types of systems and the players involved.

Chapter Objectives • • •

Describe and offer examples of the adversarial and accusatorial features of the U.S. criminal justice system.

Describe Herbert Packer’s criminal justice system models and explain where, and why, the United States falls on the continuum between the two.

Describe the roles and ethical responsibilities of prosecutors, defense attorneys, and judges.

[return to top]

Key Terms adversary system discretion factual guilt inquisitorial system legal guilt nolle prosequi rule of lenity sovereign immunity victim impact statements [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. The U.S. Criminal Justice System—Common Law, Adversarial, and Accusatorial A. Common Law—judge-made from decisions 1. Was in continuous evolution as cases were heard 2. Now there is legislature to develop laws, but the interpretation and influence of common law is still used 3. All states except Louisiana and Puerto Rico (they are a mix of common and civil law)

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B. Adversarial—two opposing parties and a neutral decision maker 1. Resembles a sporting event 2. The theory is that the truth is more likely to be discovered between two competing parties, each conducting its own investigation 3. Pure adversarial system is not employed in the United States 4. Judges are to remain impartial, neutral, and detached 5. Parties are largely responsible for development of the case, including discovery and evidence C. Inquisitorial Systems—found in civil law jurisdictions 1. The judge plays more active role in the entire case 2. Judges may decide what theories will be explored and what evidence is to be collected 3. Less formal and technical than adversarial D. Accusatorial—an element of the adversarial system that places burden of production and proof on the state and gives the benefit of the doubt to the defendant 1. Failure results in directed verdict or acquittal 2. Minimizes risk of convicting an innocent person 3. Idea is that it is better to free several guilty persons than to convict one innocent person 4. The accused enjoys several advantages such as: a. Presumption of innocence b. Freedom from self-incrimination c. Right to a jury trial d. Right to counsel II. Due Process Model and Control Model of the Criminal Justice System A. Due process model—places a premium on the integrity of individual rights and the fairness of the process as well as factual guilt 1. Factual guilt—whether a defendant has in fact committed a crime 2. Legal guilt—concerned with factual guilt but also with whether the defendant’s rights have been observed and respected 3. Efficiency is a concern but not a high priority 4. Little tolerance for conviction of the innocent 5. Less efficient and more costly under this model 6. United States most closely aligns with the due process model

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7. Cumbersome—a maze in which the government must navigate to secure a conviction 8. Government has high burdens of production of proof B. Crime control model—repression, detection, and efficiency are factors 1. Failure to do so is perceived as failure of government 2. Failure leads to fear among citizens 3. Loss of confidence in government 4. Prosecution is bureaucratic 5. Abhors crime going unsolved and defendants unpunished 6. Civil liberties are protected but not to the extent they jeopardize social control 7. Mechanistic—efficiency a high priority 8. Actual guilt required for conviction C. The United States falls most closely under the due process model, but no system falls squarely into one or the other 1. Due process is operationalized in the United States in many different ways, including: a. Presumption that criminal defendants are innocent b. Rule of Lenity, which requires ambiguous laws to be interpreted in a manner that benefits the defendant c. Proof beyond a reasonable doubt for conviction d. Freedom from unreasonable searches to probable cause and warrants in some cases, and the exclusion of evidence that is illegally obtained by police e. Right to counsel f.

Right to a jury trial and unanimous jury verdict for conviction

g. Adequate notice of the charges and time to prepare a defense h. Right to be free from self-incrimination III.Players in the Criminal Justice System A. Law enforcement officers—keep the peace, investigate possible wrongdoing, enforce the laws, prevent crime 1. Must exercise discretion 2. Exist at national, state, and local levels 3. Ethics—police officers code of conduct is the Constitution

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4. International Association of Chiefs of Police (IACP) have developed two ethics documents: a. Law Enforcement Code of Ethics—recognizes that police officers hold a special public trust and that they have an obligation not to violate that trust b. Police Code of Conduct—prohibits discriminatory treatment of individuals B. Prosecutors—government attorneys responsible for prosecuting violations 1. They have prosecutorial discretion—decide whether to move forward and prosecute or not 2. Ethical obligation a. Economics—resources are limited b. Nolle prosequi—the prosecutor decides to not prosecute c. United States v. Armstrong (1996) 3. Ethical code is: a. The Model Code of Professional Responsibility b. Model Rules of Professional Conduct C. Judges—not part of executive branch like prosecutors and police officers— they are part of the judicial branch 1. Resolution of disputes and administration of justice 2. Fair and impartial party 3. Duties: a. Issue warrants b. Supervise pretrial activity c. Preside over hearings and trial d. Decide guilt or innocence e. Pass sentence on those convicted 4. Code of judicial conduct D. Defense attorneys—all persons have the right to be represented by counsel in criminal cases 1. Sixth Amendment right 2. Public defenders provided for free (indigent defendants) 3. Must zealously represent the accused, regardless of innocence or guilt 4. People v. Belge (1975)—an attorney is allowed, but not required, to report a client’s intention to commit a crime

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E. Legal assistants—conduct initial interviews, maintain files, liaison with incarcerated clients, prepare drafts and motions, prepare witnesses 1. Code of Ethics—paralegals must also follow ethical guidelines and responsibilities 2. No mandatory certification of legal assistants 3. National Federation of Paralegal Organizations (NFPO) and the National Association of Legal Assistants (NALA) have promulgated code of ethics: a. Main issue is that legal assistants may not engage in the unauthorized practice of law b. All employees of an attorney are bound by the rules of confidentiality c. Legal assistants must not suborn perjury when preparing witnesses or the client for trial F. Victims—the victim of the crime is the government 1. Victim in fact—the actual victim 2. Victim is disinterested in pursuing prosecution 3. Nolle prosequi—when the prosecutor decides not to prosecute 4. Victim may be required to testify at pretrial hearings and trial 5. Victim’s Bill of rights includes: a. Rape shield legislation—forbids prosecution from bringing up sexual history of victim b. Victim impact statements—now permitted at sentencing hearings c. Victims can have civil remedies against perpetrators under civil law theories d. Victim assistance organizations available in many states IV. Immunity and Government Officials A. Judicial immunity (absolute immunity)—any action that is judicial in nature is shielded when performing judicial functions B. Qualified immunity—free from liability, but not necessarily free from suit C. Sovereign immunity—government’s freedom from being sued 1. Most states have abolished it 2. Federal Torts Claim Act is one example [return to top]

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Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Ask the students to think about whether they would want to be a prosecutor or a defense attorney and then discuss why.

2. Break the students into groups and have each group be a group of legal assistants or paralegals. Give them a scenario where their supervisor attorney gives them duties and they fear that some of them cross the line into unauthorized practice of law. Have the students explain why they feel that, and what they are legally allowed to do, and then how they would approach their supervisor in that situation.

3. Give the students a situation where a prosecutor utilized their discretion to not follow through on a case. Now have the students be a group of police officers who arrested the accused, and they strongly feel there is a case. How would they go about pursuing their beliefs after the prosecutor has refused to move forward? Are there any legal remedies or steps they can pursue? This may take some researching.

4. Have the students be judges. One group were previously prosecutors, and the other group were previously public defenders. Knowing that judges have to be impartial, how would they set aside their history to ensure they do so?

Review Questions

76. The constitutional mission of a prosecutor is to pursue justice.

77. By protecting the rights of the accused, the civil liberties of all persons are

protected.

78. Confidential communications between an attorney and a client may not be disclosed by an attorney without the consent of the client; an attorney may not be compelled to testify as to those communications.

79. These acts constitute the practice of law: rendering legal advice, appearing in court, establishing a lawyer–client relationship, and establishing legal fees.

80. Yes. Both the legal assistant code of ethics and the attorney code of ethics (made applicable to legal assistants through the NALA code) require this.

81. Victims’ bills of rights are made up of a comprehensive set of laws, statutory or constitutional, providing that crime victims have rights, including the rights to attend and participate in court proceedings, submit victim impact statements to be considered in sentencing, confer with prosecutors concerning case dispositions, be awarded restitution and civil damages, and be notified of the perpetrator’s status subsequent to imprisonment (including parole and release decisions).

82. Force should be used with great restraint and only after discussion, negotiation, and persuasion have been found inappropriate or ineffective.

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83. United States Code and Federal Rules of Criminal Procedure.

[return to top]

Problems & Critical Thinking Exercises

1. This problem requires students to develop facts where joint representation would cause at least one defendant to be deprived of the effective assistance of counsel, for example, in circumstances constituting antagonistic defenses.

2. Discussion question.

3. Discussion question.

4. Discussion question.

5. Discussion question.

[return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

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Table of Contents

Purpose and Perspective of the Chapter ......................................................... 89 Chapter Objectives .................................................................................... 89 Key Terms................................................................................................ 89 Chapter Outline ......................................................................................... 89 Discussion Questions .................................................................................. 93 Review Questions ...................................................................................... 94 Problems & Critical Thinking Exercises ........................................................... 94 Additional Resources .................................................................................. 94 Cengage Video Resources......................................................................... 94 External Videos or Playlist ........................................................................ 94 Internet Resources .................................................................................. 94 Primary Sources ..................................................................................... 94 Cengage Audio Resources ........................................................................ 94 External Audio Resources ......................................................................... 95 List of Transcripts for Audio Assignments .................................................... 95

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Purpose and Perspective of the Chapter

The purpose of this chapter is to learn how the Constitution fits into our criminal procedure process. You will discuss which laws have been incorporated and now apply to the states as well as federal government. You will also determine when evidence is not allowed in certain stages of a trial and why it may be excluded.

Finally, you will learn about standing and who can bring a challenge and why.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • •

Define incorporation and identify what rights have, and have not, been incorporated.

Describe how the rights applied in criminal law have expanded since they were adopted.

Define, describe, and apply the exclusionary rule.

Define, describe, and apply the fruit of the poisonous tree doctrine.

Define, describe, and apply the standing doctrine.

Describe the relationship, particularly the hierarchy, of the U.S. and state constitutions.

[return to top]

Key Terms exclusionary rule fruit of the poisonous tree independent source inevitable discovery doctrine standing [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic) so that you can see how all the content relates to the topics covered in the text.

I. The Constitution and Criminal Procedure A. Criminal justice belongs largely to the states B. 95% of all criminal prosecutions occur in state courts C. States are free with minimal limitations to design their own criminal justice system in any manner they choose

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D. Significant change occurred in the 1960s, and today the United States plays a major role in defining the rights of criminal defendants in state prosecutions as well as federal E. The source of federal involvement is the Constitution—the increased role is due to: 1. The reach of the Constitution has been extended to the states through what is known as incorporation 2. The rights found in the Bill of Rights have significantly expanded 3. The Exclusionary Rule II. Incorporation—the Fourteenth Amendment limits the authority of the states by protecting liberties that the Constitution previously only protected at the federal level A. The Fourteenth Amendment does not include any of the specific guarantees of the Bill of Rights except due process B. There are different approaches to incorporation: 1. Independent content approach a. Due process has an independent content, and none of the rights in the Bill of Rights apply to the states 2. Total incorporation a. All the rights of the Bill of Rights apply to the states automatically 3. Total incorporation plus a. Also secures additional independent rights C. Fundamental fairness—those rights that are fundamental and essential to an ordered liberty are incorporated 1. No relationship existed between the Bill of Rights and those deemed fundamental 2. Rejected by the Supreme Court in 1960s 3. Cases here are analyzed case by case 4. Some argued it was too subjective D. Selective incorporation doctrine 1. Right is incorporated if it is fundamental and essential to concept of ordered liberty 2. Independent rights are also recognized under this theory 3. Blanket rules are a precedent for similar cases in the future 4. Gives special rights to the rights contained in the Bill of Rights

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5. Nearly the entire Bill of Rights has been incorporated under the selective incorporation doctrine 6. Not the right to grand jury indictment or the right to a jury trial in civil cases III. Expansion of Rights—Extends a right beyond its most narrow reading (The Warren court expansion) A. Miranda v. Arizona (1966) B. Right to privacy; implicit in the Constitution C. By expanding the rights, it increases defendants’ rights D. Constitutional interpretation 1. Determines meaning of the Constitution 2. Possible to expand rights with broad interpretation 3. Possible to make rights ineffective with narrow interpretation IV. Exclusionary Rule—evidence that was obtained by an unconstitutional search or seizure is inadmissible at trial (announced in 1914) A. Applies to primary evidence 1. Unconstitutional search/seizure evidence is inadmissible 2. Mapp v. Ohio (1961) made the rule now applicable to state courts 3. No specific language in the Constitution establishing the exclusionary rule 4. The cost of the exclusionary rule means a few guilty may go free but it is better than an innocent person being found guilty B. Exceptions to the exclusionary rule 1. Pretrial matters 2. Sentencing 3. Independent source 4. Inevitable discovery 5. Rebuttal evidence C. Validity heavily debated 1. No specific language establishing rule in the Constitution a. Did Supreme Court exceed authority in creating it?

2. Some argue it is ineffective a. Constitutional language with no method of enforcement 3. Most nations in the Western world do not employ this approach

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V. Fruit of the Poisonous Tree A. Secondary or derivative evidence (not primary) 1. Evidence gathered as a result of evidence gained in illegal search or questioning may not be used to prosecute 2. Does not make all evidence later obtained by law enforcement inadmissible B. Exceptions to the fruit of the poisonous tree: 1. Admissible at court hearings where guilt is not determined a. Grand jury proceedings b. Pretrial hearings c. Sentencing 2. If defendant opens the door and refers to evidence first, prosecutors may use it a. Kansas v. Ventris (2009) 3. Independent source—if new evidence can be traced to a source completely apart from the illegally gathered evidence it may be used 4. Inevitable discovery—if the criminal evidence is gathered by unconstitutional methods, the evidence may be admissible if it would have definitely come to light anyway 5. Attenuation doctrine—evidence that is illegally obtained will be admitted if the causal connection between the government’s wrongful conduct and the resulting evidence has been severed by an intervening event 6. Evidence is admitted a. Through an independent source or private citizen discovery b. When a suspect has not been given Miranda warnings

VI. Standing A. Two aspects of standing 1. The person challenging the evidence must have an adversarial interest in the proceedings a. A mother cannot intervene in the criminal case because she does not have standing 2. Reasonable expectation of privacy to a place or thing a. Simmons v. United States (1968)

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3. Trend is moving away from expansive interpretation VII.

State Constitutions

A. State constitutions differ from the U.S. Constitution 1. Longer than the U.S. Constitution 2. More details about the organization of state government 3. More amendments B. New federalism—Resurgence in state constitutional law 1. State constitutions as independent source of civil liberties 2. Rehnquist Court decisions 3. State constitutions protect criminal defendants to a greater extent than the national Constitution does 4. A state constitution cannot be used to limit or encroach on a federally secured right, but it can be used to extend the right 5. If a right is founded upon federal law, the Supreme Court is the final arbiter 6. If a right is founded upon state law, the highest court of that state is the final arbiter 7. Several states have not followed the Supreme Court’s lead in allowing statements made in violation of Miranda to be used by the prosecution in impeachment of a defendant [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Divide the students into two groups. Have one group pick two laws that have been incorporated and the other group two laws that have not been incorporated. Have the incorporated group argue why the unincorporated group’s laws should be incorporated and have the unincorporated group argue why the incorporated group’s laws should not have been incorporated.

2. Have the students do research. Find a case that uses the exclusionary rule and that kept a defendant from being prosecuted even though they are guilty simply because of the exclusionary rule. How do they feel about that?

3. Have one group of students represent the independent source exception and one group represent the inevitable discovery exception. Give examples of each and have them argue why they should be exceptions to the exclusionary rule.

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Review Questions

84. Incorporation refers to extending a right grounded in the U.S. Constitution to

state criminal proceedings. Only fundamental rights that are essential to the concept of ordered liberty are incorporated. This is known as selective incorporation and is the currently applicable law. Total incorporation allows defendants in state court—as well as federal court—to assert all rights contained in the Bill of Rights, based on the argument that the entire Bill of Rights is incorporated by the Fourteenth Amendment.

85. Nearly all rights contained in the Bill of Rights have been incorporated. The right to be charged by indictment has not been, as has trial by jury in civil cases.

86. The exclusionary rule holds that any evidence obtained by law enforcement in an unconstitutional manner during search and seizure is inadmissible at trial.

87. Students are to supply an example.

88. Attenuation, independent source, and inevitable discovery.

89. Emphasizing the importance of state constitutions with respect to individual rights and criminal procedure. [return to top]

Problems & Critical Thinking Exercises

1. The U.S. Constitution is important in state prosecutions because rights contained therein have been extended to state proceedings through the Fourteenth Amendment’s Due Process Clause. In addition, many of those rights that have been extended to the states have been expanded.

2. Discussion question.

3. Discussion question.

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

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External Audio Resources •

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List of Transcripts for Audio Assignments •

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Table of Contents

Purpose and Perspective of the Chapter ......................................................... 96 Chapter Objectives .................................................................................... 96 Key Terms................................................................................................ 96 Chapter Outline ......................................................................................... 96 Discussion Questions ................................................................................. 100 Review Questions ..................................................................................... 100 Problems & Critical Thinking Exercises .......................................................... 101 Additional Resources ................................................................................. 101 Cengage Video Resources........................................................................ 101 External Videos or Playlist ....................................................................... 101 Internet Resources ................................................................................. 102 Primary Sources .................................................................................... 102 Cengage Audio Resources ....................................................................... 102 External Audio Resources ........................................................................ 102 List of Transcripts for Audio Assignments ................................................... 102

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss searches and seizures and how they affect criminal procedure. What constitutes a search and seizure? What are the exceptions to warrant requirements? How does probable cause fit in? Finally, the different types of arrests will be covered and the requirements for each.

Chapter Objectives

The following objectives are addressed in this chapter: • • • •

Describe and apply the two tests, and the landmark caselaw defining them, used to determine if a search has occurred under the Fourth Amendment.

Define probable cause and explain when it is required and what forms of evidence may, and may not, be used to establish it.

Define, describe, and apply the Fourth Amendment’s warrant requirement.

Define, describe, and apply the Fourth Amendment’s rules for arrests

[return to top]

Key Terms Franks hearing probable cause standing [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Searches and Seizures A. Searches and seizures involve significant invasions of individual liberties B. Fourth Amendment is the most important limitations as it provides the right for people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures 1. All searches must be reasonable C. The question is, does the Fourth Amendment apply 1. Intended to limit governmental authority 2. Any person who acts on behalf of the government is subject to the constraints of the Constitution 3. Not all interactions between police and the public amount to a search or a seizure under the Fourth Amendment

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a. Katz case (1967) held that the Fourth Amendment protects people and not places b. Two-part test was developed 1. An individual must have a subjective expectation of privacy and 2. That expectation must be objectively reasonable 3. Still used to determine if whether a search or seizure has occurred 4. Supreme Court defined a search as when an expectation of privacy that society is prepared to consider reasonable is infringed 5. Privacy does not apply to open spaces like parks 6. Jones case (2012) had to do with a GPS device a. The Fourth Amendment does apply when police trespass upon a legally recognized property right and b. When police conduct invades a space where a suspect has a reasonable expectation of privacy 7. Katz and Jones cases do not have to do with jurisdiction—the beliefs of privacy state that a touching by the police that meaningfully interferes with a property interest can trigger the Fourth Amendment 8. Jardines case (2013)—The government’s use of trained police dogs to investigate the home and its surrounding areas is a search within the meaning of the Fourth Amendment II. Probable Cause—Minimum amount of evidence necessary for a search, seizure, or arrest to be proper under the Fourth Amendment A. There is no one universal definition for probable cause B. Multiple sources are used to determine if there was probable cause including 1. Police observations 2. Hearsay evidence 3. Witness statements 4. Other law enforcement officers 5. Informants (persons with knowledge of the crime due to their involvement) C. No innuendo or conjecture may be used D. Levels of proof used in criminal law 1. Reasonable suspicion—supports temporary detention and frisks

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2. Beyond a reasonable doubt—the standard for criminal conviction 3. Clear and convincing evidence—required to establish some fact in a trial situation 4. Preponderance of the evidence—more likely true than not (51% confidence) III. Warrant Requirement A. Protects citizens from overzealous law enforcement practices (most important) B. Warrantless searches are permitted in special circumstances 1. Aguilar case (1964)—less evidence is required to sustain a search if a warrant was obtained prior to the search C. Requirements for obtaining a warrant 1. The evidence presented must establish probable cause to believe that within the area searched, the items sought will be found 2. Must be probable cause to believe those items sought are connected to criminal activity 3. The area to be searched must be described with particularity 4. The facts that are alleged to establish probable cause must be supported by oath or affirmation 5. The warrant must be issued by a neutral and detached magistrate D. Executing warrants—generally are to be served during the day 1. Police must knock and announce at the premises of the search 2. After search is completed, police must inventory items E. Exceptions to warrant requirement 1. Carol case (1925)—traffic stops a. Warrantless search of a vehicle stopped on a public road is reasonable, with probable cause b. No exigency has to exist c. Warrantless search is validated when vehicle has been used to traffic drugs 2. Open fields and border searches 3. Roadblocks 4. Prisoners, probationers, and parolees IV. Seizures—occur when police interfere with a person’s possessory interests or their reasonable expectation to privacy

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A. Seizure of a person occurs when there is a show of force or authority by police and a reasonable person believes that they are not free to leave V. Arrest Warrant—most arrests are made without obtaining a warrant A. Arrests in protected areas 1. Arrest warrants do not authorize entry into private property of third persons 2. No warrant needed if owner consents 3. Arrest is to be made in an area protected by the Fourth Amendment a. Someone’s home b. Payton case (1980)—a valid arrest warrant implicitly carries with it a limited right to enter the suspect’s home to effect the arrest, provided there is reason to believe the suspect is within B. Misdemeanor arrests—authority to arrest misdemeanants who breach the peace is clear 1. An officer may fully search an arrestee incident to an arrest 2. Limited to areas where a weapon might be obtained 3. Does not extend to rooms beyond where the person is being detained C. Search incident to arrest and the protective sweep 1. Other potentially dangerous persons may be present but out of sight when an arrest is made (search-incident-to-arrest doctrine) D. Executing arrest warrants—knock and announce required 1. Applies regardless of whether police gain entry by force 2. No-knock warrants obtained in exceptional circumstances E. Illegal arrests—Toscanino case (1974): if the government’s conduct is outrageous and shocking, the defendant may be set free 1. This reasoning applies only to situations in which the government’s conduct is both shocking and outrageous 2. Even though a defendant’s person may not be excluded because of an illegal arrest, the evidence obtained pursuant to the arrest may be VI. Fourth Amendment Constitutional Issues A. Two important, sometimes competing, policy objectives are at play in Fourth Amendment problems: 1. Crime detection and prevention versus 2. The citizen’s right to be free from governmental intrusion

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VII.

Remedies for Fourth Amendment Violations

A. Invoke exclusionary rule B. Civil action under constitutional tort theory C. Request criminal prosecution by state and federal authorities D. Complain to an officer’s department or other officials; seek administrative discipline [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the students into three groups. Have each group come up with a situation where they are not in their own home but do have an expectation of privacy to be free from searches and seizures.

2. Ask the students to consider, is there is a situation where they could be searched in a public place without a warrant?

3. Have the students do research and find a recent case that has to do with unreasonable search and seizure as regards to cell phone information. What laws are applicable in the case and was probable cause needed? A warrant?

4. How does search and seizure apply to information on the web? Is it voluntarily put out there so it’s a free-for-all for anyone to search? Ask students to determine what restrictions there are for this information.

Review Questions

90. Prior to the Katz decision, the Fourth Amendment was viewed as protecting

physical areas. Katz states that the Fourth Amendment protects people, not places. This issue is one of privacy; when a person has a reasonable expectation of privacy, the Fourth Amendment comes into play.

91. Jones makes clear that both the old property test and Katz’s privacy tests are applied to determine if the Fourth Amendment applies when police trespass upon a legally recognized property right and when police conduct invades a space where a suspect has a reasonable expectation to privacy.

92. The basic requirements are that (1) there must be probable cause to believe that the items sought will be within the area searched, (2) there must be probable cause to believe that the items sought are connected to criminal activity, (3) the area searched and the items to be seized must be described with particularity, (4) the allegations must be supported by oath or affirmation, and (5) the warrant must be issued by a neutral and detached magistrate.

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93. Yes. Any area may be searched, as long as the requirements for obtaining a

search warrant are met, such as probable cause to believe that the evidence is in the house. The fact that the evidence is located in a third person’s home is not vital.

94. According to the Torres Case, the seizure requires the use of force intended to restrain or apprehend. The officer here did intend to stop or apprehend the suspect by throwing the baton at her while she was running away. That constituted a seizure.

95. If that information gave the officer probable cause, then yes. They must have probable cause that a crime was committed and the person arrested committed the crime. Since the suspect is in a public place, there is no Fourth Amendment right to privacy.

96. The Fourth Amendment requires that before an arrest can be made, there must be probable cause to believe that a person committed a crime.

However, the Supreme Court announced in Terry v. Ohio that a limited seizure may be conducted pursuant to a less stringent test: The officer must have a reasonable suspicion that criminal activity is afoot. This is known as an investigatory stop. Such stops must be brief and reasonable—no longer than necessary to dispel an officer’s suspicions. To conduct a search, an officer must have probable cause and a warrant unless an exception to the warrant requirement applies. Terry v. Ohio recognizes that upon reasonable suspicion to believe the detainee has a weapon, a limited frisk of the person’s outer clothing is permitted.

97. No. The hot pursuit exception applies. [return to top]

Problems & Critical Thinking Exercises

1. The desk drawers may not be searched. It is not reasonable to expect stereos to be found in such a small place.

2. The closets may be searched, as stereos may be hidden there.

3. No, unless (1) the warrant authorizes the officers to search the defendant; (2) the officers have a reasonable suspicion to believe that the individual has a weapon, in which case they may frisk the defendant; or (3) they arrest thedefendant and conduct a search incident to arrest.

4. They may seize the bag under the plain view rule.

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Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

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Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

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Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 12: Searches, Seizures, and Arrests

Table of Contents

Purpose and Perspective of the Chapter ........................................................ 103 Chapter Objectives ................................................................................... 103 Key Terms............................................................................................... 103 Chapter Outline ........................................................................................ 103 Discussion Questions ................................................................................. 107 Review Questions ..................................................................................... 108 Problems & Critical Thinking Exercises .......................................................... 109 Additional Resources ................................................................................. 110 Cengage Video Resources........................................................................ 110 External Videos or Playlist ....................................................................... 110 Internet Resources ................................................................................. 110 Primary Sources .................................................................................... 110 Cengage Audio Resources ....................................................................... 110 External Audio Resources ........................................................................ 110 List of Transcripts for Audio Assignments ................................................... 110

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss the many exceptions to searches and seizures. You will learn all about the landmark cases that cover these exceptions and probable cause requirements as well. You will learn when police are required to satisfy the Fourth Amendment’s greatest demands; reasonability, probable cause, and a warrant. And you will learn when less is required; where police do not have to have a warrant or even probable cause to conduct a search or seizure.

Chapter Objectives

The following objectives are addressed in this chapter: •

Identify and describe, including landmark cases, the exceptions to the Fourth Amendment’s warrant and probable cause requirements.

[return to top]

Key Terms automobile exception consent exigent circumstances plain view doctrine [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Exceptions to the Search Warrant Requirement—when is a search warrant not required to legally perform a search and seizure A. Consent—A voluntary consent to a search obviates the Fourth Amendment’s requirements of suspicion and a warrant 1. The only requirement is reasonableness 2. No requirement that police inform a person that they do not have to consent 3. A consent may be terminated by the person at any time 4. Courts examine the totality of circumstances to determine if consent was voluntary 5. Is consent voluntary? Factors used to determine voluntariness: a. The suspect’s knowledge of the right to refuse b. The age, intelligence, and language skills of the suspect

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c. The degree of cooperation exhibited by the suspect d. The suspect’s attitude about the likelihood of discovering contraband during the search e. The length of detention f. The nature of the detention, including the nature of the questions and whether police intimidated the suspect or coerced the statements 6. Police must respect any limitations placed on a suspect’s consent 7. A defendant who is threatened or coerced into consenting has not voluntarily consented B. Stop and Frisk: Terry stop—stop and frisk exception—a Terry stop must be justified at its inception and ―reasonably related in scope to the circumstances which justified‖ 1. A motorist may be temporarily detained under Terry 2. Terry stops are to ―last no longer than is necessary‖ 3. The investigative methods employed during the stop should be the ―least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time‖ 4. The fact that there has been a lawful stop does not itself justify a frisk a. In order to conduct a frisk an officer must have a reasonable belief that the person is armed and dangerous b. Full searches require probable cause C. Plain Feel Exception—what happens when an officer who is conducting a Terry pat down discovers, through the sense of touch, not a weapon, but contraband 1. The Supreme Court held that evidence felt during a Terry frisk may be used to establish probable cause to support retrieving an item, as long as the incriminating character of the evidence is immediately apparent 2. Exploration of the clothing beyond what is necessary to determine dangerousness is not permitted, unless probable cause to believe that there is contraband is created through the officer’s sense of touch D. Plain View Exception—a warrantless seizure of evidence by an officer who is lawfully in a position to see the evidence is valid 1. For a seizure to be lawful under the doctrine, the following must be shown: a. The officer must lawfully be in an area b. From which the object to be seized is in plain view, and c. The officer does in fact see the item

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d. There is probable cause to believe the object is connected to a crime, and e. The officer has a right to access the object itself E. Search incident to arrest and the protective sweep—in the interests of officer and bystander safety, police officers may conduct a quick search of a home during an arrest 1. The objective is to determine if there are dangerous occupants 2. The sweep is limited to areas where a person may hide F. Exigent circumstances exception: preservation of evidence—a situation where law enforcement officers must act so quickly to prevent the destruction of evidence, the successful flight of a suspect, or serious injury or death to any person that there isn’t time to obtain a warrant G. Exigent circumstances exception—emergency responses and hot pursuit 1. Police officers are permitted to enter areas protected by the Fourth Amendment without a warrant if there is an emergency 2. An officer who is chasing a suspect does not have to end the pursuit at the door of a home or business. The normally unlawful entry into the structure is permitted to catch the defendant.

3. Each case is to be reviewed independently to determine if an exigent circumstance (e.g., potential harm to others, destruction of evidence, or future escape from the home) exists that justifies a warrantless entry H. Community caretaking exception—refers to situations when police perform social welfare duties, such as searching for missing persons and welfare checks on the elderly, mentally ill, and shut-ins 1. An officer must have a reasonable belief, supported by specific and articulable facts, that the welfare action is needed to assist a person in distress 2. Warrantless entries in homes might be justified in some circumstances, such as when an objectively reasonable belief that an occupant is about to commit suicide or in need of urgent medical care I. Open fields exception—not technically an exception since open fields around one’s property are not protected by the Fourth Amendment 1. Officers are then free to search them without a warrant 2. Protection only to home and curtilage a. Curtilage is the area directly around one’s home b. Treated as part of the home 3. To determine if open fields exception applies, consider:

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a. The proximity of the area claimed to be curtilage from the home b. Whether the area enclosed is enclosed with the home c. The nature of the use of the area d. The attempts of the residents to keep the area private J. Border searches and profiles exceptions—searches at the U.S. border do not require probable cause 1. Must comply with reasonableness 2. Applies to search of both luggage and persons K. Automobile and roadblocks exception—privacy in automobiles is protected under the Fourth Amendment 1. Not full protection to occupants 2. Roadblocks may be used to find fleeing suspects and prevent the public from unsafe drivers 3. Use objective system in deciding which vehicles to stop 4. Search the vehicle if probable cause exists II. Types of searches A. Car searches—automobile may be searched incident to the arrest of its driver 1. For the search incident to an arrest to apply, there must be an actual arrest B. Car inventory searches—police officers may impound vehicles once the driver is arrested 1. Once impounded, an inventory search is conducted 2. No requirement of probable cause 3. Limited in scope—not allowed if the trunk or glove box is locked C. Boat searches—are protected by the Fourth Amendment 1. They are typically in public view so therefore have a reduced Fourth Amendment protection 2. History of boarding boats is common 3. Less than that of automobiles 4. May be stopped, boarded, and searched without a warrant 5. Reasonableness does apply D. Prisoners—the Fourth Amendment is not fully applicable in prisons because of security and order concerns, and loss of privacy is an attribute of imprisonment

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1. No Fourth Amendment protection to search a prisoner’s cell 2. It does apply to the search of their person 3. No probable cause or warrant required to search their person, but reasonableness applies E. Probationers and parolees—lessened expectation of privacy so no probable cause or warrant required F. Administrative searches—often require less probable cause and warrant requirements 1. Purpose of them is not to detect and punish criminals 2. Goal is to protect public from health and welfare concerns 3. Warrantless inspections of restaurants, schools, groceries, and the work areas of public employees must be reasonable 4. Four closely regulated business that enjoy less Fourth Amendment protection than other businesses are: a. Liquor sales b. Firearm sales c. Mining d. Automobile junkyards 5. State courts have found more including a. Energy producers b. Pharmacies c. Massage parlors d. Childcare facilities 6. For schools—the need to maintain discipline justifies a reduction in the warrant and probable cause requirements a. The reasonableness standard is used [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the students into three groups. Have each group create a scenario where they felt they were being ―seized‖ but actually may not have been under the legal definition. Have them give reasons why they felt they could not leave and

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were being seized. Then have them discuss why they can see problems with this issue.

2. Have the students do research and find a case that uses the plain view exception to the search requirement. Do they agree with the findings of the case they found? Was anything done by the officer in the case to question whether the evidence was actually in plain view? What safeguards should there be if the officer is the only one in the room when searching?

3. Have the student argue whether something on their property is curtilage or open fields. Why or why not?

4. Give the students a scenario where a legal Terry stop occurred. The officer had a reasonable suspicion to believe contraband was inside the vehicle and was searching it. The glovebox was stuck and the officer had to jimmy it open. The driver argued and said it was locked and there was a Fourth Amendment protection to it. How would the officer go about proving it was stuck and not locked and therefore not under the purview of the Fourth Amendment?

Review Questions

1. Yes, the officer has probable cause that a crime has been committed and may ask the driver to step out of the vehicle. If the officer has probable cause that the item may be found in the area searched, then they may search the open areas of the car. If the officer arrests the driver, they may conduct a search incident to arrest as well.

2. Yes. Any area may be searched, as long as the requirements for obtaining a search warrant are met, such as probable cause to believe that the evidence is in the house. The fact that the evidence is located in a third person’s home is not vital.

3. The plain view doctrine is an exception to the warrant requirement. When an officer who is in a place lawfully sees an illegal item, the officer may seize the item without first obtaining a warrant.

4. Curtilage is the area directly around one’s home. A homeowner’s property beyond his or her curtilage area is open field. Curtilage is protected by the Fourth Amendment; open fields are not.

5. The Fourth Amendment requires that before an arrest can be made, there must be probable cause to believe that a person committed a crime. However, the Supreme Court announced in Terry v. Ohio that a limited seizure may be conducted pursuant to a less stringent test: The officer must have a reasonable suspicion that criminal activity is afoot. This is known as an investigatory stop.

Such stops must be brief and reasonable—no longer than necessary to dispel an officer’s suspicions. To conduct a search, an officer must have probable cause and a warrant unless an exception to the warrant requirement applies. Terry v.

Ohio recognizes that upon reasonable suspicion to believe the detainee has a weapon, a limited frisk of the person’s outer clothing is permitted 6. No. There is no warrant requirement for arrests made in public. For the arrest to be valid, the officer must have probable cause to believe that a crime has been

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committed and that the person being arrested is connected to the commission of the crime. The victim’s statements to the officer are sufficient to justify arrest.

7. No. For the arrest to be valid, the officer must have probable cause to believe that a crime has been committed and that the person being arrested is connected to the commission of the crime. The victim’s statements to the officer are sufficient to justify arrest.

8. No. The hot pursuit exception applies 9. A protective sweep is a limited, warrantless search of the premises where an arrest is made to protect against other potentially dangerous people who may be hiding. [return to top]

Problems & Critical Thinking Exercises

1. First, it must be determined whether the detention of Tommy was valid. The detention was initially valid. The fact that Tommy was in an alley behind a commercial establishment at 11:50 for longer than five minutes creates a reasonable suspicion. Under Terry v. Ohio, the officer had the authority to conduct an investigatory stop. However, once Tommy answered the question and presented his identification, the suspicion was dispelled and the efforts related to seizure should have ceased. Under this view, the subsequent searches were violative of the Fourth Amendment. Regarding the alternative, if students choose to find that reasonable suspicion did not dissipate, the second issue is whether the frisk was valid. To conduct a frisk, an officer must have a reasonable suspicion that the detainee is carrying a weapon. Then the search is limited to finding weapons in the person’s outer clothing. At the point the officer frisked Tommy, the suspicion that a crime was being committed was no longer reasonable and the officer had no reason to believe that Tommy was carrying a weapon. The frisk was conducted in violation of the Fourth Amendment. Since the frisk produced the evidence upon which Tommy was arrested, the arrest is invalid. Since the arrest was invalid, the search incident to arrest was invalid.

Accordingly, the tools and diagram must be suppressed. There being no additional evidence, the motion to dismiss should also be granted 2. The desk drawers may not be searched. It is not reasonable to expect stereos to be found in such a small place.

3. The closets may be searched, as stereos may be hidden there.

4. No, unless (1) the warrant authorizes the officers to search the defendant; (2) the officers have a reasonable suspicion to believe that the individual has a weapon, in which case they may frisk the defendant; or (3) they arrest the defendant and conduct a search incident to arrest.

5. They may seize the bag under the plain view rule.

6. Discussion question 7. Discussion question

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8. Discussion question [return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices

Table of Contents

Purpose and Perspective of the Chapter ........................................................ 112 Chapter Objectives ................................................................................... 112 Key Terms............................................................................................... 112 Chapter Outline ........................................................................................ 112 Discussion Questions ................................................................................. 118 Review Questions ..................................................................................... 119 Problems & Critical Thinking Exercises .......................................................... 119 Additional Resources ................................................................................. 120

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Cengage Video Resources........................................................................ 120 External Videos or Playlist ....................................................................... 120 Internet Resources ................................................................................. 120 Primary Sources .................................................................................... 120 Cengage Audio Resources ....................................................................... 120 External Audio Resources ........................................................................ 120 List of Transcripts for Audio Assignments ................................................... 120

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss interrogation and confessions, surveillance, and forensic practices. When are confessions allowed? How must interrogations occur? What is required for interrogations? You will also learn when the government can access electronic information and when a warrant is required. Finally, you will discuss pretrial identification procedures including eyewitness and forensic evidence and when to exclude certain evidence.

Chapter Objectives

The following objectives are addressed in this chapter: • • • •

Define, describe, and apply the Fifth Amendment’s privilege against selfincrimination to police interrogations.

Define and describe the elements of the Federal Wiretap Act. Explain what social science has discovered about the fallibility of eyewitness identifications and how the law attempts to mitigate the risk of misidentification.

Describe the tests used to determine the validity and reliability of evidence.

[return to top]

Key Terms admission chain of custody confession DNA printing geofence search interrogation lineup showup [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Interrogations, Confessions, and Admissions A. Interrogation—whenever officers question a person they suspect has committed a crime B. Reid technique of questioning—using a combination of environmental and psychologically manipulative interrogation methods to extract confessions

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1. Creates a tense, high-pressure environment followed by a process of trust building with offers of support and expressions of sympathy C. Custodial interrogation requirement 1. Individual must be a. In custody b. Subject to interrogation 2. Objective test used to determine if suspect is in custody a. Brief encounter is not necessarily custody D. Confession—a statement made by a person claiming that they have committed a crime 1. Three stages of confessions are: voluntariness, Miranda, and postMiranda 2. Voluntariness requirement a. Due Process Clauses of the Fifth and Fourteenth Amendments a. All confessions must be made voluntarily b. Arizona v. Fulminante (1991) E. Miranda (1966) 1. The heart of the decision is the warnings which include: a. The right to remain silent b. Any statements made may be used against the defendant to gain a conviction c. The right to consult with a lawyer and to have a lawyer present during questioning d. For the indigent, a lawyer will be provided without cost F. The Fifth Amendment’s right to be free from self-incrimination 1. Custodial interrogation 2. Defendant must be subjected to an interrogation 3. Applies to inculpatory and exculpatory statements G. Waiver of Miranda—a defendant may waive the right to have the assistance of counsel and/or remain silent 1. Waiver must be knowingly and voluntary 2. Burden of proving defendant waived rests with the prosecution 3. Courts presume no waiver 4. Totality of circumstances is used to determine if there was a waiver

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H. Exceptions to Miranda 1. Volunteered statements a. Not interrogation, so no requirement 2. Routine (informational) questions 3. Questioning in interest of public safety 4. Spontaneous questioning by police 5. Undercover officers not required a. No custody and no police-dominated atmosphere 6. Routine traffic stops a. Not considered custodial I. Multiple interrogations and reinterrogations 1. Under limited circumstances, police may attempt to interrogate a suspect who has invoked their right to remain silent 2. Ambiguous references to an attorney do not invoke Miranda rights 3. Must be unambiguous 4. A second interrogation regarding an unrelated crime may be permitted J. A reinterrogation may be permitted when a defendant has previously invoked his right to remain silent and the case has been closed but then is reopened 1. Minnick v. Mississippi 2. Once an accused has asserted a right to counsel, all police-initiated interrogations must occur with defense counsel present K. Violating Miranda 1. Any statement obtained in violation of Miranda is inadmissible at trial to prove guilt 2. May be admitted to impeach witness 3. Physical fruits of a non-Mirandized confession are not to be suppressed at trial 4. Only applies to voluntary admissions and not coerced L. The Sixth Amendment 1. Miranda has effect as soon as a person is in custody and is subject to interrogation 2. Once the adversary judicial proceeding has begun, the primary source of protection changes from the Fifth Amendment (Miranda), which continues in effect, to the Sixth Amendment

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3. Reading of Miranda warnings is sufficient for protecting a defendant’s Sixth Amendment rights II. Electronic Surveillance A. Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968 (Federal Wiretap Act) 1. Regulates the use of electronic surveillance 2. Prohibits wiretapping, bugging, or other surveillance of a conversation when there is a reasonable expectation of privacy 3. Permits the states to enact similar legislation 4. State laws may not lessen, but may increase requirements for a warrant 5. Often called a super-warrant B. Governing statutes 1. Wiretaps a. The high standards for issuing a wiretap warrant have led to it being dubbed a ―super-warrant‖ b. Standard warrants may be issued for any crimes and warrants for wiretaps are limited c. Wiretap orders are sealed 2. Tracking devices 3. Stored communications and subscriber information a. Authorizes government access to information stored by telecommunications, cable, and Internet provider companies b. Includes voicemail and e-mail 4. Pen registers and trap devices a. Record number of incoming and outgoing calls b. No access to content so no Fourth Amendment requirement 5. Geofence technology a. Police practice of obtaining location and use data from all devices in an area of a crime during the period of a crime b. Includes cell phone tower pings C. Foreign Intelligence Surveillance Act (FISA) of 1978 1. Regulates collection of foreign intelligence by government officers 2. Amended by the Patriot Act of 2001, 2007, and 2008

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a. Authority of the United States to spy on U.S. persons abroad is limited to when U.S. persons are acting as foreign agents and when engaged in terrorism III. Execution and Exceptions to the Wiretap Warrant Requirements A. Execution of wiretap warrants 1. If possible, record all communications intercepted 2. Minimize all interceptions of irrelevant information a. Fourth Amendment reasonableness requirement 3. Implicit in court orders is the authority to enter premises to install listening devices B. Exceptions to the Federal Wiretap Act 1. Only communications for which a person has a reasonable expectation of privacy are protected 2. Employee of a communications company who intercepts an incriminating communication may disclose it to authorities 3. Certain national security investigations 4. Emergency situations 5. Parties to conversations or e-mail exchanges may consent to surveillance, without consent of other party C. Tracking devices 1. Technology a. U.S. District Court, S.D. Texas (2005) 2. Prospective cell site data as tracking information 3. Prospective cell site data and other ECPA surveillance categories D. National security surveillance 1. Aimed at foreign governments and their agents abroad 2. No FISC order needed a. Communication devices that belong to foreign powers or ―technical intelligence‖ from a foreign power b. Intrusion of physical spaces controlled by foreign governments to collect intelligence 3. National Security Letter a. No subpoena needed to demand noncontent data from Internet service providers, communication companies, and businesses about their clients IV. Pretrial Identification Procedures

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A. Fairness in identification 1. Prohibit identifications that are so unnecessarily suggestive that there is a real chance of misidentification 2. Identification must also be unreliable to be excluded 3. Evidence not automatically excluded, but court must make an independent determination that it is unreliable to exclude 4. Eyewitness testimony is always under scrutiny due to suggestive situations B. Lineups and showups 1. United States v. Wade (1967) 2. Lineup—police exhibit a group of people, among whom is the suspect, for identification 3. One-man showup—exhibition of one person to a witness or victim for identification as the criminal a. More suggestive of guilt and to be used with caution b. Should occur within minutes or hours of the crime C. Right to counsel 1. Kirby v. Illinois (1972) 2. Counsel must be provided at lineups and showups a. Required after initiation of adversary judicial proceedings such as formal charge, preliminary hearing, indictment, information, or arraignment D. Self-incrimination 1. Self-incrimination a. Does not violate the Fifth Amendment to require a defendant to be in a lineup E. Methods of identification 1. Eyewitness identifications 2. Photographs a. More common than lineups and showups 3. Forensic identification F. Forensic identification procedures 1. Fingerprinting a. Not a search to take fingerprints b. No expectation of privacy

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2. Blood tests a. Bodily invasion and privacy concern 3. DNA tests a. Through hair, blood, tissue, and semen b. Open question as to whether probable cause and a warrant are required for cheek swabs and other noninvasive DNA collection 4. Voice tests a. Not violative to record for purposes of self-identification 5. Polygraph tests a. Fifth Amendment applies 6. Chain of custody a. Must record chain of custody of evidence from the time it was collected until it is introduced at trial G. Exclusion of improper identifications 1. Consequences a. Testimony about an illegal identification must be excluded at trial b. In-court identifications may be excluded if tainted by pretrial identification 1. Court will find an independent source for an in-court identification [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the students into groups. Give them a scenario where a suspect was stopped by police and questioned. Have each group discuss details of the situation and whether Miranda is required, why, or was it an exception to the Miranda requirements. Make sure each group covers one of these areas.

2. Ask the students to consider different situations where their personal electronic information could be accessed by the government without a warrant. How do they feel about that? What are examples that would require a warrant?

3. Have the students do research on cases and discuss one that used DNA collection without a warrant. Do they agree with the finding of the court? Should it have been an exception to the warrant requirement? When should there be an exception to gather DNA evidence?

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4. Have the students come up with a scenario where there was arguably a custody and then questioning but the court could find no actual custody occurred. What actually has to occur for a custody and interrogation to occur and where is the line blurred?

Review Questions

98. The right to remain silent; any statement made by the defendant may be

used to gain a conviction; the right to the assistance of counsel; and for an arrestee who is indigent, counsel will be appointed. The warnings must be read any time a defendant is in custody and subjected to an interrogation.

99. The confession is suppressed.

100.

Under both the Federal Wiretap Act and Fourth Amendment analysis, one party may consent, without the other’s knowledge, to a third person listening to the conversation. Hence, Terry has no basis to have the statements suppressed.

101.

There is no right to counsel at a lineup conducted before the adversary judicial proceeding has been initiated. But once the formal proceedings have been started, the Sixth Amendment guarantees the right to counsel.

102.

No. 103.

Generally, transmission across traditional line phones may not be intercepted by the public. A cordless telephone uses radio waves, which may be received by any person; as such, it is reasoned that there is no reasonable expectation of privacy.

104.

A record identifying chronologically the parties who had possession of evidence from the time it was seized until it is introduced at trial.

105.

Scientific testing is not testimonial, so the Fifth Amendment challenge would fail. Because the testing would require an invasion of the defendant’s person, the Fourth Amendment requires that the government establish probable cause that the defendant committed the offense and that the hairs found on the rape victim belonged to the rapist. In addition, the test must be conducted in a reasonable manner. Since there is no emergency, a warrant must be obtained. [return to top]

Problems & Critical Thinking Exercises

1. Generally, a person must be in custody and subject to interrogation before the Miranda warnings are read. Tom’s first statement should not be suppressed for two reasons. First, Tom was not in custody when the statement was made. Second, even if he had been in custody, the question by the officer was spontaneous and falls into an exception to the interrogation element of Miranda. Accordingly, the baseball bat should not be excluded as evidence. The second statement concerning his motive should be suppressed because the officer was not acting impulsively and Tom was interrogated while in custody.

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2. The motion should be denied. Court orders for surveillance implicitly authorize reasonable entries onto/into a person’s premises to install the necessary equipment.

3. Because of the possibility of coercion, threat, and other abuses.

4. Discussion question.

5. Discussion question. [return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 14: The Pretrial Process

Table of Contents

Purpose and Perspective of the Chapter ........................................................ 122 Chapter Objectives ................................................................................... 122 Key Terms............................................................................................... 122 Chapter Outline ........................................................................................ 123 Discussion Questions ................................................................................. 128

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Review Questions ..................................................................................... 129 Problems & Critical Thinking Exercises .......................................................... 129 Additional Resources ................................................................................. 130 Cengage Video Resources........................................................................ 130 External Videos or Playlist ....................................................................... 130 Internet Resources ................................................................................. 130 Primary Sources .................................................................................... 130 Cengage Audio Resources ....................................................................... 130 External Audio Resources ........................................................................ 130 List of Transcripts for Audio Assignments ................................................... 130

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Purpose and Perspective of the Chapter

The purpose of this chapter is to learn about the process a case goes through from before arrest until trial. What is involved in the investigation and arrest will be discussed as well as the initial appearance and pretrial process. Next, preliminary hearings and formal charges will be explained and then arraignment and pretrial activity. Finally, extradition and detainers will be explained.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • •

Describe the investigative stage of a criminal case, including the elements of a criminal complaint.

Describe the initial appearance and detail the forms of pretrial release and the causes to deny pretrial release.

Describe the preliminary hearing and the two formal methods of charging a defendant.

Describe arraignment, motion practice, and plea negotiations.

Define extradition and detainer and offer an example of both.

[return to top]

Key Terms Alford plea arraignment arrest bail bill of particulars complaint deposition detainer discovery extradition grand juries indictment information motion nolo contendere plea plea bargain (plea agreement) preliminary hearing target true bill

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quash [return to top]

Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Investigation and Arrest A. Police learn of criminal activity by discovering it themselves or citizens reporting it B. Prearrest investigation—determine whether a crime was committed 1. Gather evidence to charge and convict C. Arrest—once probable cause has been determined arrest usually follows 1. Components of an arrest: a. Defendant is asked to come to police station b. Police search defendant c. Defendant is ―booked‖ d. Mug shot is taken e. Defendant is permitted one phone call f. Defendant is searched again and jailed D

Complaint—the formal document charging a person with a crime 1. The written statement of the facts constituting an offense 2. Filed by arresting officer and sometimes prosecutors 3. Acts as the charging instrument 4. Ex parte hearing is sometimes necessary 5. Officer does not have to have personal knowledge of the crime 6. May rely on hearsay and circumstantial evidence

II. Initial Appearance A. Within 24 hours or following Monday if weekend B. First appearance is brief 1. Identity is confirmed 2. Defendant is informed of various rights 3. Court will appoint counsel (if defendant is indigent) 4. Bail is set

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5. When defendant is in custody, initial appearance is considered arraignment in most states C. Appearance—time to gather additional evidence granted 1. Preliminary hearing date is set 2. County of Riverside v. McLaughlin (1991) a. Need for prompt probable cause III.Pretrial Release and Detention A. Types of release 1. Bail (most common) a. Money a defendant deposits with court to secure their pretrial freedom 2. Surety bond a. Secure bail bond when defendant cannot pay entire bail 3. Property bond 4. Personal recognizance a. Misdemeanors b. Promise to appear B. Eighth Amendment 1. Proscribes the imposition of excessive bail 2. The purpose of imposing bail is to ensure defendant’s presence at trial and not to inflict punishment 3. Excessive if set higher than necessary C. Pretrial detention is the default 1. May not be used to punish 2. Detained if there is reason to believe that the defendant will not appear for trial or poses a threat to others 3. If they will obstruct justice 4. Defendant is entitled to an adversary hearing IV. Preliminary Hearing A. Second appearance 1. Varies by state a. Determines whether probable cause exists to believe the accused committed the crime

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b. If there is probable cause, the defendant is bound over to the next stage c. Purpose of preliminary hearing is to have an impartial third party review the facts to be sure that probable cause exists d. Trial or review e. If probable cause is not established, the defendant is released f. It is adversarial and can be quite lengthy V. Formal Charges A. Grand jury 1. They perform investigations 2. Act as accusatory bodies 3. Closed proceedings a. Defendant is not entitled to attend 4. Prosecutor runs grand jury 5. Secret proceedings 6. Not entitled to have counsel present 7. Can order people to appear with subpoena power B. Indictment 1. Sworn, written accusation of a crime, made against a person by a prosecutor to a grand jury 2. All federal prosecutions for capital and infamous crimes must be by indictment 3. A defendant may not waive indictment in federal capital cases 4. Grand jury review is not a fundamental right 5. If defendant believes the indictment is fatally deficient it may be attacked by a motion to quash C. To indict 1. Vote of 12 is needed 2. Grand jury review is not a fundamental right a. Defendant may waive right to grand jury review D. Plea bargaining 1. Plea bargains involve only the defendant and prosecutor a. Judges do not participate 2. Bargain is presented to the trial court

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3. More than 90% of all felony cases are disposed of by guilty pleas (most as the result of a plea bargain) E. Information 1. Charges filed by prosecutor a. No grand jury 2. Replaces complaint and becomes formal charging instrument 3. Trend is away from indictments and toward charging by information VI. Arraignment A. Hearing 1. Defendant is read the formal charge 2. Plea agreement (plea bargain) 3. Asked to enter a plea a. Guilty 1. Court must find factual basis exists before a plea of guilty can be accepted b. Not guilty c. Once plea is taken, the court will impose sentence or set a future date for sentencing d. Nolo contendere—I do not contest it 1. Treated as a plea of guilty 2. Neither admits nor denies the charges 3. Cannot be used in a later civil proceeding against the defendant e. Alford plea—pleads guilty but maintains innocence 1. Entered when the defendant intelligently concludes that the plea is the best strategy and 2. The evidence strongly suggests the defendant is guilty VII.

Pretrial Activity

A. Discovery 1. Process of the prosecution and defense exchanging information a. Bill of particulars—to make general indictments and information more specific 1. Not true discovery devices 2. Intended to provide defendant with details about the charges that are necessary for the preparation of a defense and to avoid prejudicial surprise at trial

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b. Brady doctrine c. Statements of the defendant 1. Government must allow defendant to inspect, copy, or photograph all prior written and recorded statements made by the defendant d. Criminal record of the defendant 1. Requires prosecutor to furnish a copy of defendant’s criminal record e. Documents and tangible objects 1. Defendants are entitled to inspect and copy photographs, books, tangible objects, papers, buildings, and places in possession of the government if it is being used to prepare for defendant’s defense or will be used by government at trial or belongs to the defendant f. Scientific reports and texts—must be turned over to defendant upon request g. Statements of witnesses—provide list of intended witnesses h. Depositions—allow depositions in criminal cases when exceptional circumstances exist i.

Brady doctrine—exculpatory evidence must be provided

B. Freedom of Information Laws—requires public disclosure of files, documents, and other information in possession of the federal government 1. Freedom of Information Act (FOIA) 2. Nine exceptions to the FOIA 3. FOIA is not a discovery device C. Motion practice—when a person desires something from the court 1. Motion to dismiss/quash a. Defendant believes indictment is fatally flawed 2. Motion to suppress a. Request to suppress evidence at trial 3. Motion for change of venue a. Request to move case from one district to another 4. Motion practice 5. Motion for severance

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a. Two defendants involved in same crime will be tried separately to ensure fair trials 6. Motion in limine a. Request that the court orders other party not to mention or attempt to question a witness about a specific matter D. Pretrial conference 1. Before trial, court addresses outstanding issues 2. The final stage before trial E. Removal—in certain circumstances, criminal cases may be removed from state courts to federal courts 1. To preserve sovereignty of the federal government by ensuring a fair trial to particular criminal defendants VIII.

Extradition and Detainers

A. Extradition—surrender of a person from one jurisdiction to another where the person has been charged or convicted of a crime 1. Usually occurs under the provisions of a treaty B. Uniform Interstate Criminal Extradition Act 1. Request for extradition made between governors 2. One state may grant immunity to an individual and then extradite them to another state to be tried for the immunized crime C. Detainer—request (or order) for the continued custody of a prisoner 1. Interstate detention a. Detainer is used in conjunction with extradition D. Interstate detention 1. Detainer is used in conjunction with extradition E. Interstate agreement on detainers 1. State requests temporary custody of prisoner of another state in order to try him or her 2. Notifies prisoners of any detainers against them [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

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1. Give the students a scenario where they are the defendant. Each group chooses to plead guilty, not guilty, an Alford Plea, or nolo contender. Have each group explain why they chose to plea and give facts.

2. Have the students argue why they should be granted bail and how the court should determine the amount of bail based on their crime.

3. Have the students research and find a case about detention; where a defendant was not detained and escaped and was never caught. When should the defendants be detained and why?

4. Tell the students they are going to be part of a grand jury. Have them compose a list of things they will be doing as a grand jury and the restrictions they have upon them.

5. Have two groups of students—ones who plea bargain and ones who do not.

Have the groups argue for plea bargaining or against it.

Review Questions

106.

A defendant may be retained prior to trial in order to ensure the defendant’s appearance at trial or to prevent danger to the public.

107.

Indictments are issued by grand juries, and an information is filed by prosecutors.

108.

The indictments and the information are the formal charging instruments; they begin the process and provide the defendant with notice of the charges pending against him or her.

109.

The defendant should file a motion for a bill of particulars.

110.

Pleas of nolo contendere may not be used in subsequent civil proceedings.

111.

Kevin should file a motion to suppress the weapon.

112.

The answer can differ, depending on whether the complaint was initially used to obtain an arrest warrant or was used at a preliminary hearing. In either case, its purpose is the same: to establish probable cause.

However, since a preliminary hearing was included in the list, the following order is the most likely: Complaint, Initial Appearance, Preliminary Hearing, Formal Charge, Arraignment, and Trial.

113.

The Brady doctrine requires prosecutors to disclose to defendants all exculpatory information in their possession (or that may be found through due diligence). Failure to do so is violative of the Due Process Clause.

114.

When federal officials or members of the military are charged with crimes that arise out of performance of official duties.

115.

The surrender of a person from one government/jurisdiction to another for prosecution.

[return to top]

Problems & Critical Thinking Exercises

1. Historically, grand juries were used to shield people from arbitrary prosecutions. They were the ―buffer‖ between the people and the

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government. Many argue that grand juries have lost their independence, that they are tools of prosecutors. This is particularly important, as grand juries have powers (investigative) that prosecutors do not. The result has not been to limit governmental power but to increase it.

2. Discussion question.

3. Discussion question. [return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 15: Trial

Table of Contents

Purpose and Perspective of the Chapter ........................................................ 132 Chapter Objectives ................................................................................... 132 Key Terms............................................................................................... 132 Chapter Outline ........................................................................................ 133 Discussion Questions ................................................................................. 137

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Review Questions ..................................................................................... 138 Problems & Critical Thinking Exercises .......................................................... 138 Additional Resources ................................................................................. 139 Cengage Video Resources........................................................................ 139 External Videos or Playlist ....................................................................... 139 Internet Resources ................................................................................. 139 Primary Sources .................................................................................... 139 Cengage Audio Resources ....................................................................... 139 External Audio Resources ........................................................................ 139 List of Transcripts for Audio Assignments ................................................... 139

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Purpose and Perspective of the Chapter

The purpose of this chapter is to cover all steps in the trial process beginning with trial rights and ending with trial. All of the trial rights and the steps in the trial procedure will be discussed thoroughly.

Chapter Objectives

The following objectives are addressed in this chapter: • • • • • • •

Describe the Sixth Amendment’s right to counsel, including the landmark cases that define the right.

Describe the Sixth Amendment’s right to be tried by a jury of peers, including the landmark cases that define the right.

Describe the Sixth Amendment’s right to a public trial, including the landmark cases that define the right.

Describe the Sixth Amendment’s right to cross-examination and confrontation, including the landmark cases that define the right.

Describe the due process right to the presumption of innocence and proof beyond a reasonable doubt, including the landmark cases that define the right.

Describe the Sixth Amendment right to speedy trial, including the landmark cases that define the right.

Describe the procedural steps of a trial from voir dire to verdict and judgment.

[return to top]

Key Terms beyond a reasonable doubt challenge for cause hung jury in limine JNOV objections peremptory challenge polling the jury sidebar voir dire [return to top]

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Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Trial Rights of Defendants A. The right to counsel—one of the most fundamental rights 1. Indigency a. Defendant cannot afford counsel; counsel will be appointed b. Powell case—the absence of counsel deprived the defendants of a fair trial c. Extended to cases where the absence of counsel would be unfair d. Extended to include all criminal cases punished with a jail term 2. Effective assistance of counsel a. Must have been extremely inadequate and b. Defendant must show actual harm c. ―Undivided loyalty‖ of counsel d. Defendant has a right to confer with counsel to prepare a defense 3. The right to self-representation a. Defendant may represent themself, although it increases the chance of conviction b. Must show they are doing so voluntarily and knowingly and know of the risks c. Judges can appoint standby counsel 4. The scope of the right a. Requires that prosecution be initiated before right to counsel, under the Sixth Amendment, attaches b. Fifth, Sixth, and Fourteenth Amendments B. Effective assistance of counsel—two facts must be shown to prove ineffective assistance of counsel 1. Representation must have been extremely inadequate 2. Defendant must demonstrate actual harm 3. Was it shockingly substandard 4. Defendant also has a right to undivided loyalty 5. Right to confer to prepare a defense

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C. Right to self-representation—defendant has a right to represent themselves 1. Defendant may do so voluntarily and knowingly 2. Must be made aware of the dangers and disadvantages of selfrepresentation 3. Judges can appoint standby counsel D. The right to a jury trial 1. Offenses punishable with six months or more of imprisonment a. Crimes that are moral in nature 2. Petty offenses a. No jury trial 3. Exceptions to jury trial for petty offenses a. Military trials b. Juvenile court (delinquency proceedings) 4. Size of jury—12 is the most common a. Use of less than 12 has been criticized as elevating efficiency above justice b. Now require juror unanimity 5. A defendant cannot be penalized for moving to trial rather than pleading guilty 6. Defendant entitled to an impartial jury 7. To show there is an unfair jury selection defendant must show: a. The group alleged to be excluded is a distinctive group b. The representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community and c. This underrepresentation is due to systematic exclusion of the group in the jury selection process 8. Juries should be unbiased 9. Jury deliberations are secret E. The right to a public trial 1. Keep prosecutions honest 2. Does not mean anyone who wants to sit in the trial is allowed 3. Right to a public trial is not absolute a. Trial judges may order hearing conducted in private

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4. Court closes a hearing a. Defendant is entitled to a new hearing b. United States v. DeLuca (1998) F. The right to confrontation and cross-examination 1. Sixth Amendment right to confront one’s accusers a. State drafts its own rules of evidence 2. Only applies at trial and not pre-trial hearings G. Confrontation Clause 1. Implicitly includes right of a defendant to be at the trial 2. Restricts the government’s use of hearsay evidence a. Exceptions to the hearsay rule if a. The witness is unavailable at trial and b. The defendant had a prior opportunity to examine the witness c. Scientific evidence may be admitted through report H. The presumption of innocence/burden of proof 1. Accused must be proven guilty by the government 2. Guilt beyond a reasonable doubt (highest burden of proof) a. Doubt that would cause a reasonable or prudent person to question guilt b. Every element of the charged crime must be proved c. Court must not create physical setting implying guilt d. The court must guard against unconscious, nonverbal signals of guilt e. Monitor conduct in the courtroom to ensure unacceptable fairness to the defendant I. The right to a speedy trial 1. Sixth Amendment right extended by the Fourteenth Amendment a. No specific number of days set b. Each state has its own set number 2. Barker v. Wingo—four factors considered a. Length of delay b. Reason for delay c. Whether defendant asserted right to a speedy trial d. How seriously the defendant was prejudiced

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3. Time for a speedy trial begins once the defendant is arrested or formally charged II. Trial Procedure A. Voir dire (to speak the truth) 1. Jury selection 2. First stage of trial 3. The in-court questioning of prospective witnesses to determine competency to testify 4. Challenges of voir dire a. Challenged for cause—cannot be fair or impartial b. Peremptory challenge 1. Cannot be used to eliminate a prospective juror for race or gender B. Preliminary instructions—judge explains to the jury what their obligation is and a brief overview of the case and law 1. Presumption of innocence is explained C. Opening statements 1. Acquaint jury with the basic facts of the case a. Not the time to argue law b. Only facts expected to be presented are mentioned D. The prosecution’s case in chief 1. United States employs adversarial system of adjudication 2. Federal Rules of Evidence a. Motion in limine—a request that prejudicial information be excluded as trial evidence b. Objections—a claim that an action by your adversary is improper, unfair, or illegal c. Sidebar—in-court discussion out of hearing of the witnesses and jury E. Prosecutors may not call defendants to testify 1. Directed verdict—defendant may move for directed verdict if evidence is insufficient F. The defense case 1. Defendants a. Not required to put on a defense

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1. Juries are instructed not to infer guilt by absence of defense b. May call witnesses and introduce exhibits 2. Rebuttal a. Witnesses called on to disprove evidence of the defense G. Closing arguments 1. Opportunity to summarize evidence and explain positions 2. Attorneys may argue both facts and the law a. Cannot argue law different from what the judge will express to the jury as controlling in the case H. Final instructions 1. Judge explains law to the jury a. Prosecutorial burden b. Standard of proof c. Elements of the crime d. How to weigh and value evidence e. Rules for reaching a verdict I. Jury deliberations 1. Secret in all cases—jury unanimity is required for a guilty verdict a. ―Allen charge‖ —reexamine position of minority b. Hung jury—mistrial declared and new date set J. Verdict 1. Obligation to follow the law as interpreted a. Polling the jury K. JNOV/New trial 1. Defendant moves for judgment notwithstanding the verdict that trial was flawed a. Similar to a directed verdict b. Defendant may file a motion for a new trial [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

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1. Break the students into two groups. One group will be potential jurors. The other group will break into attorneys for both sides. Have them ask questions and voir dire. Let them use their challenges for cause and preemptory challenges. Question their challenges if any seem to be based on something they should not.

2. Have the students research and find a case of ineffective assistance of counsel.

Have them present the situation to the class and why it was ineffective. Do they agree or not?

3. Ask the students if they think self-representation is a good idea. See if they can find a case where a defendant was found not guilty when they represented themselves.

4. Have the students discuss what should happen if a juror has been found to have engaged in outside communications or pressure. What should be the penalties and what should happen to the trial?

Review Questions

116.

The right to be at one’s trial, to cross-examine government witnesses, and to allow the government to produce their witnesses at trial (avoid hearsay).

117.

Beyond a reasonable doubt. Greater than preponderance but less than absolute confidence of guilt. A reasonable doubt is construed by some to be a doubt that causes a reasonable or prudent person to seriously question the guilt of the accused—based on the evidence in the case.

118.

The Supreme Court has not set a specific time period within which a defendant must be tried. In determining whether speedy trial has been violated, the Court established four factors to be considered: i. the length of the delay ii. the reason for the delay iii. whether the defendant asserted his right to a speedy trial iv. the prejudice caused by the delay

119.

When a jury disregards the law. Neither party may encourage a jury to nullify the law.

120.

Judges decide whether prospective jurors may be dismissed for cause.

Inability to be fair is cause. The parties are given a stated number of peremptory challenges to eliminate jurors for any reason except race.

121.

Yes. 122.

(1) The representation was extremely inadequate and (2) of actual harm. [return to top]

Problems & Critical Thinking Exercises

1. There is no right to a jury trial in juvenile proceedings.

2. Jane is entitled to a jury trial since her crime may be punished by imprisonment that exceeds a period of six months.

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3. Because he is being tried as an adult, Nick is entitled to trial by jury.

4. There is no right to a jury trial in the military. [return to top]

Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

[list]

Internet Resources •

[list]

Primary Sources •

[list]

Cengage Audio Resources •

[list]

External Audio Resources •

[list]

List of Transcripts for Audio Assignments •

[list]

[return to top]

Instructor Manual Hall, Criminal Law 2023, 9780357619339; Chapter 16: Sentencing and Appeal

Table of Contents

Purpose and Perspective of the Chapter ........................................................ 141 Chapter Objectives ................................................................................... 141 Key Terms............................................................................................... 141 Chapter Outline ........................................................................................ 142 Discussion Questions ................................................................................. 146 Review Questions ..................................................................................... 146 Problems & Critical Thinking Exercises .......................................................... 147 Additional Resources ................................................................................. 147

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Cengage Video Resources........................................................................ 147 External Videos or Playlist ....................................................................... 147 Internet Resources ................................................................................. 148 Primary Sources .................................................................................... 148 Cengage Audio Resources ....................................................................... 148 External Audio Resources ........................................................................ 148 List of Transcripts for Audio Assignments ................................................... 148

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Purpose and Perspective of the Chapter

The purpose of this chapter is to discuss what happens after the verdict. Sentencing and appeals are looked at and how each process works. What goes into sentencing and who is entitled to an appeal.

Chapter Objectives

The following objectives are addressed in this chapter: • • •

Describe the sentencing hearing procedure and applicable rights, including counsel, cross-examination, jury, and whether victim impact evidence may be considered.

Distinguish and explain the fundamental processes of appeal and habeas corpus.

Define pardon, reprieve, commutation, and legislative amelioration

[return to top]

Key Terms aggravating circumstances commutation of sentence concurrent sentences consecutive sentences determinate sentencing exhaustion of remedies final judgment habitual offender statutes halfway houses harmless error indeterminate sentence interlocutory appeal mitigating circumstances pardon parole prejudicial error reprieve revocation hearing suspended sentence victim impact statement [return to top]

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Chapter Outline

The following outline organizes activities and assessments by chapter (and therefore by topic), so that you can see how all the content relates to the topics covered in the text.

I. Sentencing A. Imposed by the trial judge 1. For misdemeanors, sentencing is immediate 2. Jury sentence recommendation (few jurisdictions) 3. Legislature determines how a crime should be punished a. Curbed by the Eighth Amendment B. Sentencing procedure 1. After a guilty verdict, sentencing date is set 2. No right to a speedy sentence 3. Presentence investigation/no right to counsel a. Investigation starts with an interview with the defendant b. Obtain copies of vital documents c. Prepare presentence report 4. Sentencing hearing—are adversarial a. Victim impact statements allowed—oral or written statements to the sentencing judge explaining how the crime has affected the victim and possibly the victim’s family b. Payne v. Tennessee (1991)—victim impact statements allowed regardless of relevance to facts of the case as long as it is not so prejudicial that the sentencing becomes unfair C. Punishing acquitted crimes 1. Judges historically have significant discretion in sentencing 2. Different standards of proof for conviction and sentencing a. Conviction—beyond a reasonable doubt b. Sentencing—preponderance of the evidence D. Proving facts for sentencing 1. Historically, judges have used facts not presented to the jury in sentencing decisions 2. Judges are restricted by jury decisions though

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3. Cases now demand that the conduct for which defendant was acquitted be found by a jury before a judge may rely on them at sentencing E. Forms of punishment 1. Capital punishment a. Death penalty (most controversial) b. It is not inherently cruel and unusual c. Eighth Amendment has been interpreted to prohibit sentences that are disproportionate to the crime committed d. Defendants incapable of understanding why they are being executed because of insanity may not be executed until they regain faculties 2. Corporal/physical punishment a. Limited by the Eighth Amendment—pain does not mean it is illegal 3. Incarceration a. Method of dealing with dangerous persons by restraining them b. Most common method of punishing violent offenders 4. Parole a. Early release from prison; used to encourage inmates to stay out of trouble b. Usually has conditions 5. Halfway houses a. Minimum security homes in the community 6. Probation—also called a suspended sentence where defendant is released from custody but must comply with conditions imposed by the court during probation a. Under supervision of a probation officer during probation b. Defendant who violates their conditions may be disciplined c. Revocation hearing—if revoked—they are off probation and incarcerated 7. Community service a. Defendant’s sentence is suspended and a number of community service hours must be completed b. Community service jobs can range from unskilled to professional 8. Restitution a. Purpose is to compensate the victim, not punish the defendant

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b. Limited to actual amounts resulting from the offense 9. Fines a. Purpose is to punish defendant b. End up in the public treasury 10.Forfeiture a. Involve taking of property and money to punish defendants b. Focuses on taking the property owned by a defendant that is related to the crimes committed c. Often used in RICO and drug pin cases 11. Modern sentencing alternatives

a. Work release—live in jail but allowed to leave to go to work b. Alcohol and drug treatment programs—usually done in addition to regular probation 12. Habitual offender statutes

a. Extreme penalty in most jurisdictions b. Jury does not know about habitual criminal charge until verdict is reached c. Recidivist or habitual offender laws d. ―Three strikes‖ law e. Most states allow for increased penalty if a defendant has been convicted of a stated number of felonies within a certain period F. Types of sentencing 1. Indeterminate and determinate sentencing a. Indeterminate—corrections officials have greatest amount of control over inmate’s sentence b. Determinate—sentencing judge is given discretion to set a fixed sentence (no chance for early release) 2. Definite and indefinite sentencing a. Legislature establishes the specific penalty to be imposed for each crime b. Indefinite, there is a range from which to impose sentencing 3. Presumptive sentencing a. Legislature states what sentence should be imposed from within a range, absent: 1. Aggravating circumstances—actions that increase seriousness of a crime

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2. Mitigating circumstances—facts that provide no justification or excuse for an action 4. Suspended imposition of sentence (SIS) a. Community-based correction 1. Can include restitution, probation, halfway houses, and parole 2. Different from suspended sentencing – judge refrains from entering a judgment of conviction until a later date 3. If defendant complies then prosecution is dismissed 5. Concurrent and consecutive sentencing a. Concurrent—sentences run together (combined) b. Consecutive—run back-to-back II. Appeals A. State-provided by appeal or statute or constitution 1. May not violate Due Process Clause or Equal Protection Clause a. Filing the appeal 1. Brief issues for appellate court 2. Most jurisdictions provide for possibility of bail pending appeal (misdemeanor cases) b. Scope of review 1. Only final orders (judgments) may be appealed 2. Cases not retried on appeal—only procedural errors 3. Not every error leads to a reversal—only prejudicial ones B. Habeas corpus 1. Used to order someone who has custody of another to bring that person before the court a. Applies to state and federal governments b. Individual may attack lawfulness of confinement 2. Details of habeas corpus a. Scope of review b. Exhaustion of remedies—the defendant must use all means available in the state system to correct the alleged error c. Custody requirement III.Appealing Outside the Courts

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A. Federal government possesses several powers concerning criminal convictions and sentences, including clemency 1. To forgive or reduce a punishment is clemency 2. Commutation of sentencing—changing a criminal punishment to one less severe 3. Pardon—relieves the defendant of a conviction altogether a. Use by the president or governor 4. Reprieve—a stay or delay of execution for the court to further review the case [return to top]

Discussion Questions

The following are discussion questions that do not appear in the courseware or text—they are for you to use as you wish. You can assign these questions several ways: in a discussion forum in your LMS; as whole-class discussions in person; or as a partner or group activity in class.

1. Break the students into two groups. Have one group create a mitigating circumstance to their charge and argue it. How would they go about getting that information in, etc. Have the other group create an aggravating circumstance.

Who would present that information, and how would they go about it?

2. Have the students each pick a county in a state but make sure they are all different. They will research the statistics of that county as far as incarceration.

What is the number of persons incarcerated per capita? What is the recidivism rate? Does that state have a death penalty?

3. Ask the students to research probation. How effective is probation in terms of preventing future crime?

4. Have students research appeals. Which state has more appeals? What are the statistics of overturning or remanding a case on appeal? How many appeals does their state have annually?

Review Questions

123.

The presentence investigation is conducted by the probation office of the sentencing court. Through the investigation process, information about the defendant is gathered. The information is available to the court as the judge considers sentencing. Typically, information about finances, family, alcohol and drug use, prior criminal activity, employment, medical issues, and psychological issues is gathered. This information is then put into a presentence report, which is provided to the sentencing judge.

124.

Aggravating circumstances provide reasons for a court to increase the presumptive sentence. Mitigating circumstances are reasons to sentence a defendant lower than a presumptive sentence.

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125.

Generally, only final judgment may be appealed. Other decisions, which do not end the case, must wait until final judgment before they may be reviewed by an appellate court.

126.

If state law provides for appeal by right, the Fourteenth Amendment’s Equal Protection Clause guarantees counsel. However, if the appeal is discretionary, there is no right to counsel.

127.

Habeas corpus is a method of attacking a conviction. It is a civil remedy used to review a conviction for constitutional error.

128.

No trial is perfect, and harmless errors do not lead to reversal. If an error prejudices a defendant, the defendant must be freed or retried.

129.

Yes. 130.

Items a, b, and d are not inherently cruel. Flogging is unresolved. Item e is violative of the Eighth Amendment.

131.

A suspended imposition of sentence occurs when a court withholds sentencing for a period of time and then dismisses the case when this period expires, as long as the defendant has complied with the conditions established by the court (i.e., no other arrests or convictions). A sentence suspended to probation is entered into the record, and the defendant is released subject to conditions. [return to top]

Problems & Critical Thinking Exercises

1. The prosecution will not be successful on appeal. To overturn the conviction would be violative of the Double Jeopardy Clause of the Fifth Amendment.

The prosecutor erred by not seeking an interlocutory appeal, as most states permit interlocutory appeals of such pretrial orders.

2. Under the collateral order doctrine, contrary to the final judgment, a decision concerning a defendant’s competency to stand trial may be appealed immediately. However, failure to bring an interlocutory appeal does not waive the issue; it may be raised on appeal after judgment.

3. Discovery issues may not be appealed until after final judgment has been issued. As such, the appeal will be dismissed.

4. Fourth Amendment issues may not be raised in a habeas corpus proceeding.

Kevin’s petition would be dismissed at an early stage without a hearing.

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Additional Resources Cengage Video Resources • •

[list] MindTap Videos: o [list]

External Videos or Playlist •

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Internet Resources •

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Primary Sources •

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Cengage Audio Resources •

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External Audio Resources •

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List of Transcripts for Audio Assignments •

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