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# 151053 Cust: Cengage Au: Hall Pg. No. iii Title: Criminal Law and Procedure Server: __________________

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D a n i e l e . H a l l , J . D . , e d . D .

Criminal law

P r o C e d u r e a n d

Australia • Brazil • Mexico • Singapore • United Kingdom • United States

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F O S T E R , C E D R I C 1 6 9 2 T S

CHaPTEr 1 Chapter Outline Federalism Separation of Powers The Structure of the Court System Duties and Powers of the Judicial Branch Comparing Civil Law and Criminal Law The Authority of Government to Regulate

Behavior The Purposes of Punishing Criminal Law

Violators Specific and General Deterrence Incapacitation Rehabilitation Retribution

Ethical Considerations: Basics on Ethics in Criminal Law

Chapter Objectives

After completing this chapter you should be able to:

• describe the basic constitutional structure of state and federal governments with an emphasis on how structure affects criminal law and criminal justice administration.

• compare and contrast federal and state authorities in criminal law.

• describe both civil and criminal law with an emphasis on their differing objectives and procedures.

• describe the third branch of government, the judiciary, including the structure of U.S. courts and the authorities and duties of courts in criminal justice.

inTroduCTion To THE lEgal SySTEm of THE uniTEd STaTES

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4 Part i Criminal Law

Federalism Before one can undertake learning criminal law or criminal procedure, a basic under- standing of the legal system of the United States is necessary. This can be a complex task, as criminal law and procedure are significantly influenced by federal and state constitutional law, the common law, and statutory law at both the federal and state levels. It will be easier to understand how these areas of law affect criminal law if we first explore the basic structure of American government.

The United States is divided into two sovereign forms of government—the government of the federalism. It is also common to refer to this division as the vertical division of power, as the national government rests above the state governments in hierarchy in those areas where the constitution grants supremacy to the federal govern- ment. The Framers of the Constitution of the United States established these two levels of government in an attempt to prevent the centralization of power, that is, too much power being vested in one group. The belief that “absolute power corrupts absolutely” was the catalyst for the division of governmental power.

In theory, the national government, commonly referred to as the federal government, and the state governments each possess authority over citizens, as well as over particular policy areas, free from the interference of the other government (dual sovereignty). Most crimes fall into the jurisdiction of a state court alone, but there are small zones of author- ity that are exclusively federal as well. In many instances, when the authorities of both a state and the federal government are implicated, the two coordinate their investigations and prosecution. This process, commonly known as cooperative federalism, is discussed more fully later in this chapter.

Determining what powers belong to the national government, as opposed to the states, is not always an easy task. The Framers of the Constitution intended to establish a limited federal government. That is, most governmental powers were to reside in the states, with the federal government being limited to the powers expressly delegated to it by the U.S. Constitution. This principle is found in the Tenth Amendment, which reads: “The powers 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.”

At trial, a sidebar is a meeting between the judge and the attorneys, at the judge’s bench, outside the hearing of the jury. Sidebars are used to discuss issues that the jury is not permitted to hear. In this text, the sidebars will appear periodically. This periodic feature contains information relevant to the legal subject being studied.

federalism

■ A system of political

organization with

several different levels of

government (for example,

city, state, and national)

coexisting in the same

area, with the lower levels

having some independent

powers.

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Chapter 1: Introduction to the Legal System of the United States 5

What powers are delegated to the United States by the Constitution? There are several, including, but not limited to, the power to take the following actions:

1. Coin money, punish counterfeiters, and fix standards of weights and measures. 2. Establish a post office and post roads. 3. Promote the progress of science and useful arts by providing artists and scientists

exclusive rights to their discoveries and writings. 4. Punish piracy and other crimes on the high seas. 5. Declare war and raise armies. 6. Conduct diplomacy and foreign affairs. 7. Regulate interstate and foreign commerce. 8. Make laws necessary and proper for carrying into execution other powers

expressly granted in the Constitution.

The last two of these powers—the regulation of interstate commerce and the making of all necessary and proper laws—have proven to be significant sources of federal authority. Also important is the Supremacy Clause of Article VI, which provides that

This Constitution, and the Laws of the United States which shall be made in Pursu- ance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supremacy Clause declares federal law, if valid, to be a higher form of law than state law. Of course, if the federal government attempts to regulate an area belonging to the states, its law is invalid and the state law is controlling. But if the federal government possesses jurisdiction or concurrent state and federal jurisdiction exists, federal law trumps state law. This is true when federal and state laws are in conflict and when the federal government has taken over the area to the exclusion of the states (preemption). This is not a common issue in criminal law, because state and federal laws rarely conflict; rather, they are more likely to be parallel or complementary. In such cases, a state gov- ernment and the federal government have concurrent jurisdiction (see Exhibit 1–1).

Keep in mind that the U.S. Constitution is the highest form of law in the land. It is the federal constitution that establishes the structure of our government. You will learn later the various duties of the judicial branch of government. One duty is the interpretation (determining what written law means) of statutes and constitutions. The highest court in the United States is the United States Supreme Court. (In this text, all references to the Court are to the Supreme Court of the United States unless stated otherwise.) As such, that Court is the final word on what powers are exclusively federal or state, or concurrently held. However, once the Supreme Court decides that an issue is exclusively under the control of state governments, each state, through its judiciaries, has the final word on that issue.

jurisdiction

■ The geographical area

within which a court (or a

public official) has the right

and power to operate. Or

the persons about whom

and the subject matters

about which a court has the

right and power to make

decisions that are legally

binding.

concurrent jurisdiction

■ Two or more

jurisdictions or courts

possessing authority over

the same matter.

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6 Part i Criminal Law

During the past 200 years, the Supreme Court has differed in its approach to federalism. Two general models can be identified, though. Dual federalism refers to an approach under which the states and federal government are viewed as coequals. Under this approach, the Tenth Amendment is interpreted broadly and the Commerce Clause and the Necessary and Proper Clause are read narrowly. The Tenth Amendment is interpreted as an independent source of state powers, staking out policy areas upon which the national government cannot encroach.

Another model, hierarchical federalism, positions the national government as supe- rior to the state governments. Under this approach, the Commerce and Necessary and Proper Clauses are construed broadly. The Tenth Amendment becomes a truism; that is, it reserves to the states only those powers the national government does not possess. Accordingly, state jurisdiction decreases as federal jurisdiction expands.

Cooperative federalism, which is not a third jurisdictional model, but instead, a relational descriptor, is characterized by significant interaction between the states and federal government (and local forms of government) in an effort to effectively regulate and administer laws and programs. Cooperative federalism is a product of the political branches, the executive and legislative, not legal (federalism) mandate. The increased cooperation between state and federal law enforcement agencies to fight the war against drugs in the 1980s and 1990s and the war against terrorism in the 2000s are good examples of cooperative federalism. The Court has vacillated between the two jurisdictional models. The dominant approach in recent decades has been hierarchical federalism. This is not to say that the states are powerless. In fact, one policy area over which the states have maintained considerable control is criminal law. More than 90 percent of all crimes fall within the jurisdiction of the states, not

Exhibit 1–1 FEDERAL AnD STATE CRImInAL JURISDICTIOn

state Jurisdiction

Concurrent Jurisdiction

National Jurisdiction

1. States may regulate for the health, safety, and morals of their citizens

2. Those acts that involve a state government, its officials and property

Examples: murder; rape; theft; driving under the influence of a drug; gambling

1. Those acts that fall into both federal and state jurisdictions

Examples: Bank robbery of a federally insured institution; an act of terrorism against the United States that harms an individual, state property, or individual property

1. Crimes that are interstate in character

2. Crimes involving the government of the United States, including its officials and property

Examples: murder of a federal official or murder on fed- eral land; interstate transportation of illegal item; interstate flight of a felon

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Chapter 1: Introduction to the Legal System of the United States 7

the federal government. However, the sphere of federal government power in criminal law is increasing. This is because more acts are committed in, or are committed using an item that has traveled in, interstate commerce. Acts that have traditionally been state-law crimes may today be federal crimes as well, if there is an interstate compo- nent to the act. For example, if carjacking, which is the state crime of robbery, is com- mitted with a gun that has traveled in interstate commerce, it is also a federal crime. An act that harms an individual or property invokes state jurisdiction. If the same act can be characterized as terroristic, as defined by federal law, then federal jurisdiction and separate federal criminal liability may exist as well. Drug trafficking, if interstate, is a violation of federal law and possibly multiple state laws. Certain violations of civil liberties also invoke concurrent federal and state jurisdiction. Which government will bring charges in these situations is more a political question than a legal one. It is not a violation of double jeopardy for an individual to be tried and punished by both federal and state governments, even for the same act because the constitutional prohibition of double jeopardy was intended to preclude two trials or punishments by the same jurisdiction, not by multiple jurisdictions.

Regardless of the expansion of federal jurisdiction, most crimes continue to fall within the exclusive jurisdiction of the states. This is because one of the responsibilities of the states is to regulate for the health and safety of its citizens. This is known as the police power. Most murders, rapes, and thefts are state-law crimes. A few policy areas belong exclusively to the federal government. Punishing counterfeiters is an example. Although the expansion of federal authority is likely to continue to increase as people and goods become more national and international in character, the Supreme Court has reaffirmed the central role of states in protecting people (police power) and it has conversely made it clear that a genuine connection to interstate commerce or other federal authorities must exist for the federal government to criminalize behavior.

For example, the Supreme Court invalidated the Gun-Free Zone Act of 1990 because it found no genuine connection between guns around schools and interstate commerce. Similarly, the Brady Handgun Violence Protection Act was invalidated in Printz v. United States2 because it required state officials to conduct background checks on gun purchasers. The Court held that Congress was without the authority to direct local enforcement officers in this way. In yet another case favoring state authority United States v. Morrison3 the Supreme Court struck down part of the Violence Against Women Act because it held that it was a state, not federal, authority to provide victims of sex crimes with civil remedies against their attackers. In another 2000 case, Jones v. United States4, the Court invalidated the application of a federal arson statute to the prosecution of a man for firebombing his cousin’s home. The Court rejected the United States’ theory that it had jurisdiction because the home’s mortgage, its insurance, and its natural gas were all purchased in interstate commerce. The Court penned that if it were to accept the government’s position, “hardly a building in the land would fall outside the federal statute’s domain.”

However, a connection was found in the 2005 case Gonzales v. Raich.5 In that case, the federal government’s prohibition of the possession of marijuana was upheld, although state law allowed its possession and use for medical purposes. The interstate

police power

■ The government’s right

and power to set up and

enforce laws to provide

for the safety, health, and

general welfare of the

people.

terrorism

■ The definition of

terrorism is the subject to

ongoing debate. However,

one federal statute defines

it as activities that involve

violence or acts dangerous

to human life that are

violations of law and

appear to be intended to

intimate or coerce a civilian

population, to influence a

policy of government by

intimidation or coercion,

or to affect the conduct of

government through mass

destruction, assassination,

or kidnapping.1 18 U.S.C.

§2331.

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8 Part i Criminal Law

nature of marijuana production and sales made for an easy case of federal jurisdiction. In fact, the plaintiffs conceded this point. Their theory that California’s law permitting limited use of marijuana should trump federal law failed, largely because the federal government had a “rational basis” to believe that the state law would undermine the intention of the federal law by providing a stream through which interstate drug traf- ficking could occur.

In 2010, the Court affirmed a federal statute that delegated the authority to seek civil commitment of federal sex offenders after their sentences were served to federal prosecutors. Similar state laws were previously upheld, but in the 2010 case United States v. Comstock,6 the defendant complained that civil commitment was a traditional state authority and accordingly, the federal law was invalid. Relying on the Necessary and Proper Clause, the Court rejected the argument. That the statute required the federal government to give the appropriate state officials the first opportunity to file for commitment in state court also reduced the Court’s concerns that state autonomy was threatened.

Local governments have not been mentioned so far. This is because the Constitu- tion does not recognize the existence of local governments. However, state constitutions and laws establish local forms of government, such as counties, cities, and districts. These local entities are often empowered by state law with limited authority to create criminal law. These laws, usually in the form of ordinances, are discussed in Chapter 2.

The result of this division of power is that the states (as well as other jurisdictions, such as the District of Columbia), the federal government, and local governments each have a separate set of criminal laws. For this reason, you must keep in mind that the principles you will learn from this book are general in nature. It is both impossible and pointless to teach the specific laws of every jurisdiction of the United States in this textbook.

separatioN oF powers Another division of governmental power is known as separation of powers. This is the division of governmental power into three branches—the executive, legislative, and judicial—making a horizontal division of power, just as federalism is the vertical divi- sion (see Exhibit 1–2). Each branch is delegated certain functions that the other two may not encroach upon. The executive branch consists of the president of the United States, the president’s staff, and the various administrative agencies that the president oversees. Generally, it is the duty of the executive branch to enforce the laws of the federal government. In criminal law, the executive branch investigates alleged viola- tions of the law, gathers the evidence necessary to prove that a violation has occurred, and brings violators before the judicial branch for disposition. The president does this through the various federal law enforcement and administrative agencies.

The legislative branch consists of the United States Congress, which creates the laws of the United States. Congressionally created laws are known as statutes. Finally, the judicial branch comprises the various federal courts of the land. That branch is

separation of powers

■ Division of the federal

government (and state

governments) into

legislative (lawmaking),

judicial (law interpreting),

and executive (law carrying

out) branches.

statute

■ A law passed by

a legislature.

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Chapter 1: Introduction to the Legal System of the United States 9

charged with the administration of justice. A more comprehensive discussion of the judicial branch follows later in this chapter.

In a further attempt to diffuse governmental power, the framers designed a system of checks and balances that prevents any one branch from exclusively controlling a function. Several checks can be found in the Constitution.

For example, Congress is responsible for making the law. This function is checked by the president, who may veto legislation. The president is then checked by Congress, which may override a veto with a two-thirds majority. The president is responsible for conducting foreign affairs and making treaties and for serving as commander in chief of the military. The Senate, however, must approve the treaties negotiated by the executive branch, and Congress has been delegated the authority to make the rules that regulate the military. In the context of criminal law, this means that Congress, state legislatures, and local councils declare what acts are criminal; for their part, the president, state governors, prosecutors, and law enforcement agencies detect and respond to criminal acts, prosecute violators, and administer judicially ordered punishments. The judicial branch interprets criminal law, oversees criminal adjudications, sentences offenders, and to a limited extent oversees the entire system of adjudication and punishment.

Through the power of judicial review, the judiciary may invalidate actions of the president or Congress that violate the Constitution. In contrast, the political branches select federal judges through the nomination (president) and confirmation (Senate) pro- cess. Unpopular judicial decisions may be changed either by statute, if the issue is one of statutory interpretation, or by constitutional amendment, if the issue is one of con- stitutional interpretation and Congress possess the authority to impeach federal judges.

Keep in mind that two levels of government exist, excluding local entities. Even though the U.S. Constitution does not establish three branches of government for the many states (the U.S. Constitution designs the structure of the federal govern- ment only but also demands that states have republican forms of government), all state constitutions do, in varying forms, model the federal constitution. The result is a two- tiered system with each tier split into three parts.

In this form of government, the legislature defines what acts are criminal, what process must be used to assure that a wrongdoer answers for an act, and what punish- ment should be imposed for the act.

Exhibit 1–2 DIVISIOn OF GOVERnmEnTAL POwER

legislative Branch

executive Branch

Judicial Branch

The Government of the United States (Federal Government)

United States Congress

President of the United States

Federal Courts

State Governments State Legislatures Governors State Courts

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10 Part i Criminal Law

The duty of the executive branch is to enforce and implement the laws created by the legislature, as well as to enforce the orders of courts. For example, if a state legislature prohibits the sale of alcohol on Sundays, it is the duty of the appropri- ate state law enforcement agencies—the police or the alcohol, tobacco, and firearms agents—to investigate suspected violations and take whatever lawful action is necessary to bring alleged violators to justice. Law enforcement, in the criminal law context, is accomplished through law enforcement agencies and prosecutorial agencies. At the federal level, there are many law enforcement agencies: the Federal Bureau of Investiga- tion, Drug Enforcement Administration, United States Marshal Service, Department of Homeland Security, Immigration and Customs Enforcement, United States Secret Service, United States Coast Guard, Transportation Security Administration (includ- ing the Air Marshal Service), and Department of the Treasury are only a few. State law enforcement agencies include state departments of investigation, state police de- partments, and local police departments. These and other enforcement agencies are responsible for investigating criminal conduct and for gathering evidence to prove that a criminal violation has occurred. When the law enforcement agency has completed its investigation, the case is turned over to a prosecutor. The prosecutor is the attor- ney responsible for representing the people. The prosecutor files the formal criminal charge, or conducts a grand jury, and then sees the prosecution through to fruition. In the federal system, the prosecutor is called a United States attorney. In the states and localities, prosecutors are known as district attorneys, county attorneys, state attorneys, city attorneys, or, simply, prosecutors.

Finally, the judicial branch is charged with the administration of justice. The courts become involved after the executive branch has arrested or accused an indi- vidual of a crime as well as at certain points during criminal investigations. The duties of the judicial branch are explored further in the next section of this chapter. Lawyers, legal assistants, and law enforcement officials are likely to have significant contacts with state and federal courts; therefore, it is important to understand the structure of the court system.

the struCture oF the Court system Within the federal and state judiciaries, a hierarchy of courts exists. All state court systems, as well as the federal court system, have at least two types of courts: trial courts and appellate courts. However, because each state is free to structure its judiciary in any manner, significant variation is found in the differ- ent court systems. What follows are general principles that apply to all states and the federal system.

Trial courts are what most people envision when they think of courts. A case begins at the trial court, where witnesses are heard and evidence is presented—often to a jury as well as a judge—and where verdicts and sentenced are announced. In the federal system, trial courts are known as United States District Courts. The United States is divided into 94 judicial districts, using state boundaries to establish district limits. Each state

trial court

■ A court that hears and

determines a case initially,

as opposed to an appellate

court; a court of general

jurisdiction.

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Chapter 1: Introduction to the Legal System of the United States 11

constitutes at least one district, although larger states are divided into several districts. For example, Kansas has only one district, and the federal trial court located in Kansas is known as the United States District Court for the District of Kansas. California, in contrast, is made up of four districts: the Northern, Eastern, Central, and Southern Districts of California.

State trial courts are known by various names, such as district, superior, county, and circuit courts. Despite variations in name, these courts are very similar.

Appellate courts review the decisions and actions of trial courts (or lower appellate courts, as discussed later) for error. These courts do not conduct trials, but review the briefs submitted by the parties and examine the record from the trial court for mistakes, known as trial court error. Often, but not always, appellate courts will hear argument from the attorneys involved in the case under review, but witnesses are not heard nor other evidence submitted. After the appellate court has reviewed the record and examined it for error, it renders an opinion. An appel- late court can reverse, affirm, or remand the lower court decision. To reverse is to determine that the court below has rendered a wrong decision and to change that decision. When an appellate court affirms a lower court, it is approving the decision made and leaving it unchanged.

The court system is actually many court systems composed of the federal system and the many state systems. In 2010, approximately 104 million cases were filed in state and local trial courts, a decline from about 106 million in the two years previous according to the national Center for State Courts. Of these, 54 percent were traffic offenses, 20 percent were criminal cases, 18% were civil cases, 6 percent were domestic cases, and 2 percent were juvenile cases.

Source of state statistics: R. LaFountain, R. Schauffler, S. Strickland, and K. Holt, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads

(National Center for State Courts 2012).

In 2012 the federal system was composed of 1 Supreme Court, 13 appellate courts, and 94 district courts. The district courts had 372,563 civil and criminal cases, a 5% decline from 2011; 1,261,140 petitions for bank- ruptcy were filed in federal bankruptcy courts, an astonishing 14% decline in from 2011. The regional courts of appeals didn’t experience the declines of the trial courts. Total filings rose by 4% to 57,501. In 2011, 7,082 cases were filed, 79 were heard, and 78 cases terminated in the Supreme Court.

Source of federal statistics: 2012 Judicial Business of the United States Courts, Administrative Office of the United States Courts: http://www.uscourts.gov/

uscourts/Statistics/JudicialBusiness/2012/JudicialBusinespdfversion.pdf

appellate court

■ A higher court that

can hear appeals from

a lower court.

brief

■ A written document filed

with a court through which a

party presents a legal claim,

legal theory, supporting

authorities, and requests

some form of relief.

record on appeal

■ A formal, written

account of a case,

containing the complete

formal history of all actions

taken, papers filed, rulings

made, opinions written, etc.

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12 Part i Criminal Law

In some cases, an appellate court will remand the case to the lower court. A remand is an order that the case be returned to the lower court and that some action be taken by the judge when the case is returned. Often this will involve con- ducting a new trial. For example, if an appellate court decides that a judge acted in a manner or made a decision that prevented a criminal defendant from having a fair trial, and the defendant was convicted, an appellate court may reverse the conviction and remand the case to the trial court for a new trial with instructions that the judge not act in a similar manner.

In the federal system and many states, there are two levels of appellate courts, an intermediate and highest level. The intermediate-level courts in the federal system are the United States Courts of Appeal.7 There are 11 judicial circuits in the United States, with one court of appeal in each circuit. Additionally, there is a court of appeal for Washington, D.C., and for the Federal Circuit. Therefore, there are 13 United States Courts of Appeal in total (see Exhibit 1–3). Appeals from the district courts are taken to the circuit courts. The highest court in the country is the United States Supreme Court. Appeals from the circuit courts are taken to the Supreme Court. Also, appeals of federal issues from state supreme courts are taken to the United States Supreme Court. Although appeal to a circuit court and to a state’s first appellate court (and often its second level of appeal as well) is generally a right any litigant has, the Supreme Court is not required to hear most appeals, and it does not. In recent years, the Supreme Court has denied review of approximately 97 percent of the cases appealed. Therefore, the States’ Supreme Courts and federal circuit courts are often a defendant’s last chance to have his or her case heard.

Many states also have intermediate-level appellate courts, as well as a high court, although a few states have only one appellate court. Most states call the high court the supreme court of that state and the intermediate level court the court of appeals. An example of an exception is New York, which has named its highest court the Court of Appeals of New York and refers to its lower-level courts as supreme courts.

In states that have only one appellate court, appeals are taken directly to that court. New Hampshire is such a state, so appeals from New Hampshire’s trial courts are taken directly to the Supreme Court of New Hampshire. Note that in most in- stances a first appeal is an appeal of right. This means that an individual has a right to appeal, and the appellate court is required to hear the case. However, second appeals are generally not appeals of right, unless state law has provided otherwise. To have a case heard by the United States Supreme Court and most state supreme courts, the person appealing must seek certiorari, an order from an appellate court to the lower court requiring the record to be sent to the higher court for review. When “cert.” is granted, the appellate court will hear the appeal; and when certiorari is denied, it will not.

Finally, be aware that a number of inferior courts exist. These are courts that fall under trial courts in hierarchy. As such, appeals from these courts do not usually go to the intermediate-level appellate courts, as described earlier, but to the trial-level court first. Municipal courts, police courts, and justices of the peace are examples of inferior

certiorari

■ (Latin) “To make sure.”

A request for certiorari

(or “cert.” for short) is like

an appeal, but one that the

higher court is not required

to take for decision. It is

literally a writ from the

higher court asking the

lower court for the record

of the case.

inferior court

■ A court with special,

limited responsibilities,

such as a probate court.

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Chapter 1: Introduction to the Legal System of the United States 13

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14 Part i Criminal Law

court of general jurisdiction

■ Another term for trial

court; that is, a court

having jurisdiction to try all

classes of civil and criminal

cases except those that can

be heard only by a court of

limited jurisdiction.

court of limited jurisdiction

■ A court whose

jurisdiction is limited to

civil cases of a certain

type, or that involve a

limited amount of money,

or whose jurisdiction in

criminal cases is confined

to petty offenses and

preliminary hearings.

courts. An appeal from one of these courts is initially heard by a state trial-level court before an appeal is taken to a state appellate court. The federal system also has inferior courts. The United States Bankruptcy Courts are inferior courts because appeals from the decisions of these courts go to the district courts, in most cases, and not to the courts of appeals. Only after the trial court has rendered its decision may an appeal be taken to an appellate court.

Many inferior courts in the state system are not courts of record. No digital, audio, or stenographic recording of the trial or hearing at the inferior court is made. As such, when an appeal is taken to the trial level court, it is normally de novo. This means that the trial-level court conducts a new trial, rather than reviewing a record as most appellate courts do. This is necessary because there is no record to review, because the inferior court is not a court of record. Federal district courts do not conduct new trials, as all federal courts, including bankruptcy courts, are courts of record. State inferior courts have limited jurisdiction; for example, municipal courts usually hear municipal ordinance violations and only minor state law violations. The amount of money that a person may be fined and the amount of time that a defen- dant may be sentenced to serve in jail are also limited. Generally, no juries are used at the inferior court level.

Exhibit 1–4 is a basic diagram of the federal and state court systems. The appellate routes are indicated by lines drawn from one court to another. Later in this book you will learn how the appeals process works and how the federal and state systems interact in criminal law. Note where this diagram is located so that you may refer to it later.

Most state trial courts are known as courts of general jurisdiction. Courts of general jurisdiction possess the authority to hear a broad range of cases, including civil law as well as criminal. In contrast, courts of limited jurisdiction hear only specific types of cases. You have already been introduced to one limited jurisdiction court, municipal courts. Inferior courts, such as municipal courts, are always courts of limited jurisdiction. Some states employ systems that have specialized trial courts to handle domestic, civil, or criminal cases. These may be in the form of a separate court (e.g., Criminal Court of Harp County) or may be a division of a trial court (e.g., Superior Court of Harp County, Criminal Division). Appellate courts may also be limited in jurisdiction to a particular area of law, such as the Oklahoma Court of Criminal Appeals.

The federal government also has special courts. As previously mentioned, a nationwide system of bankruptcy courts is administered by the national govern- ment. In addition, the United States Claims Court, Tax Court, and Court of International Trade are part of the federal judiciary, and each has a specific area of law over which it may exercise jurisdiction. Often those cases over which they have jurisdiction are exclusive of district courts. However, the jurisdiction of those courts is outside the scope of this book, as they deal only with civil law. Criminal cases in federal court are heard by district courts, and criminal appeals are heard by the United States Courts of Appeals.

court of record

■ Generally, another term

for trial court.

de novo

■ Anew. For a case to be

tried again as if there had

not been a prior trial.

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Chapter 1: Introduction to the Legal System of the United States 15

duties aNd powers oF the JudiCial BraNCh Of the three branches of government, attorneys and other legal professionals have the most interaction with the judicial branch. For that reason, we single out the judicial branch for a more extensive examination of its functions.

First, it must be emphasized that all courts—local, state, and federal—are bound by the U.S. Constitution. Consequently, all courts have a duty to apply federal constitutional law. This duty is important in criminal law because it allows

Exhibit 1–4 STATE AnD FEDERAL COURT STRUCTURES

State Systems

UNITED STATES SUPREME COURT

State High Courts (i.e., Supreme

Courts)†

Inferior Courts (i.e., Municipal

Courts)

*The Federal Circuit hears cases from the U.S. Claims Court, Court of International Trade, Board of Patent Appeal and Interferences, and findings of various administrative agencies.

**District courts and circuit courts both review habeas corpus petitions from those incarcerated in the state system.

†Issues of federal law only.

United States Bankruptcy

Courts

Intermediate Appellate Courts

Trial Courts

United States District Courts**

United States Courts of Appeal*

Federal System

Habeas Corpus

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16 Part i Criminal Law

defendants to assert their U.S. constitutional claims and defenses in state court, where most criminal cases are heard. Of course, defendants may assert applicable state laws as well.

As previously stated, the judicial branch is charged with the administration of justice. The courts administer justice by acting as the conduit for dispute resolution. The courts are the place where civil and criminal disputes are resolved, if the parties cannot reach a resolution themselves. In an effort to resolve disputes, courts must apply the laws of the land. To apply the law, judges must interpret the legislation and constitutions of the nation. To interpret means to read the law in an attempt to understand its meaning. This nation’s courts are the final word in declaring the mean- ing of written law. If a court interprets a statute’s meaning contrary to the intent of a legislature, then the legislature may later rewrite the statute to make its intent clearer. This revision has the effect of “reversing” the judicial interpretation of the statute. The process is much more difficult if a legislature desires to change a judicial interpretation of a constitution. At the national level, the Constitution has been amended 26 times. The amendment process is found in Article V of the Constitution and requires action by the federal legislature as well as by the states. Amending a constitution is simply a more cumbersome and time-consuming endeavor than amending legislation.

The judicial branch is independent from the other two branches of government. Often, people think of the courts as enforcers of the law. Though this notion is true in a sense, it is untrue in that the judicial branch does not work with the executive branch in an attempt to achieve criminal convictions. It is the duty of the courts of this nation to remain neutral and apply the laws fairly and impartially. The U.S. Constitution estab- lishes a judiciary system that is shielded from interference from the other two branches. For example, the Constitution prohibits Congress from reducing the pay of federal judges after they are appointed. This prevents Congress from coercing the courts into action under the threat of no pay. The Constitution also provides for lifetime appoint- ments of federal judges, thereby keeping the judicial branch from being influenced by political concerns, which may cause judges to ignore the law and make decisions based on what is best for their political careers. Judicial independence permits courts to make decisions that are disadvantageous to the government, but required by law, without fear of retribution from the other two branches.

The need for an independent judiciary is particularly important when one considers the role courts play as the guardians of constitutional principles, including civil rights. Judicial review is a power held by the judicial branch that permits courts to review the actions of the executive and legislative branches, and of the states, and declare acts that are in violation of the Constitution void. Hamilton wrote of the power of judicial review, and of the importance of an independent judiciary, in the Federalist Papers, where he stated:

Permanency in office frees the judges from political pressures and prevents invasions on judicial power by the president and Congress.

■ ■ ■

The Constitution imposes certain restrictions on the Congress designed to protect in- dividual liberties, but unless the courts are independent and have the power to declare

interpret

■ Studying a document

and surrounding circumstances to decide

the document’s meaning.

judicial review

■ A higher court’s

examination of a lower

court’s decision.

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Chapter 1: Introduction to the Legal System of the United States 17

the laws in violation of the Constitution null and void these protections amount to nothing. The power of the Supreme Court to declare laws unconstitutional leads some to assume that the judicial branch will be superior to the legislative branch. Let us look at this argument.

Only the Constitution is fundamental law; the Constitution establishes the prin- ciples and structure of the government. To argue that the Constitution is not supe- rior to the laws suggests that the representatives of the people are superior to the people and that the Constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to inter- pret the laws and prevent the legislative branch from exceeding the powers granted it. The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of the representative. . . .

The landmark case dealing with judicial review is Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803). Chief Justice Marshall wrote the opinion for the Court and determined that, although the Constitution does not contain explicit language provid- ing for the power of judicial review, Article III of the Constitution implicitly endows the judiciary with the authority. Although seldom used by the Supreme Court for over a hundred years following the Marbury decision, it is now well established that courts possess the authority to review the actions of the executive and legislative branches and to declare any law, command, or other action void if it violates the U.S. Constitution. The power is held by both state and federal courts. Any state or federal law that violates the U.S. Constitution may be struck down by either federal or state courts. Of course, state laws that violate state constitutions may be stricken for the same reason.

The power to invalidate statutes is rarely used, for two reasons. First, the judi- ciary is aware of how awesome the power is; consequently, courts invoke the authority sparingly. Second, many rules of statutory construction exist and have the effect of preserving legislation. For example, if two interpretations of a statute are possible, one that violates the Constitution and one that does not, one rule of statutory construction requires that the statute be construed so that it is consistent with the Constitution. Although rarely done, statutes are occasionally determined invalid. In Chapter 8 and 9, on defenses, you will learn many constitutional constraints on government behavior. These defenses often rely on the authority of the judiciary to invalidate stat- utes or police conduct to give them teeth.8

CompariNg Civil law aNd CrimiNal law Criminal law exists in a larger legal framework than civil law. Understanding the context of any legal subject and its relationship to other legal subjects is important. It is com- mon to distinguish between criminal law and civil law. While important differences exist between the two, there are also many similarities. Exhibit 1–5 compares criminal and civil law.

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18 Part i Criminal Law

The source of most of the dissimilarities between criminal law and civil law is the differing objectives of the two. There are many purposes of criminal law. First, it is intended to deter behavior that society has determined to be undesirable. A second purpose of criminal law is to punish those who take the acts deemed undesirable by society, specifically, to give victims and the community at large a sense of retribution. A third purpose is to incapacitate, through imprisonment, electronic monitoring, death, and other methods, offenders. Fourth, the rehabilitation of offenders is also an objective in many cases. Arguably, there is only one purpose, to prevent antisocial behavior. Under this theory, punishment is used as a tool to achieve the primary goal of preventing antisocial behavior. The purposes of punishing individuals who violate criminal laws are discussed in greater detail in Chapter 2.

In contrast, civil law has as its primary purpose the compensation of those injured by someone else’s behavior. It is argued that the real purpose of civil law is the same as that of criminal law. By allowing lawsuits against individuals who have behaved in a manner inconsistent with society’s rules, civil law actually acts to prevent undesirable behavior. However, prevention of bad behavior may be more the consequence of civil law than the purpose. To understand this you must know something about civil law.

Many definitions of civil law exist. This author prefers a negative definition similar such as, civil law is all law except that which is criminal law. Whatever definition you accept, many areas of law fall under the umbrella of civil law. Two of the largest catego- ries of civil law are contract law and tort law.

Contract law is a branch of civil law that deals with agreements between two or more parties. You probably have already entered into a contract. Apartment leases, credit card agreements, and book-of-the-month club agreements are all contracts.

contract

■ An agreement that

affects or creates legal

relationships between

two or more persons.

To be a contract, an agreement must involve

at least one promise,

consideration, persons

legally capable of making

binding agreements, and a

reasonable certainty about

the meaning of the terms.

Exhibit 1–5 CRImInAL AnD CIVIL LAw COmPARED

Criminal Law Civil Law

Purposes Retribution, deterrence, incapacitation, rehabilitation

Compensation and deterrence

remedies Fines, restitution, imprisonment, counseling, rehabilitation, injunctions, capital punishment

Damages and equitable relief

Parties Government and individual defendant

Individual plaintiff and defendant (or government as individual)

Standard of Proof Beyond a reasonable doubt Preponderance of evidence

Burdens Government bears burden of proof and process designed to protect rights of defendant (due process)

Plaintiff bears burden of proof and parties treated equally in process

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Chapter 1: Introduction to the Legal System of the United States 19

To have a contract, two or more people must agree to behave in a specific manner. If you violate your obligation under a contract, you have committed a civil wrong called a breach of contract. The landlord may sue you for your breach and receive damages. Damages are monetary compensation for loss.

Tort law is a branch of civil law that is concerned with civil wrongs but not con- tract actions. You have likely seen television ads for personal injury attorneys. These attorneys are practicing in the tort law area. A civil wrong, other than a breach of contract, is known as a tort. Torts are different from contracts in that the duty owed another party in contract law is created by the parties through their agreement. In tort law, the duty is imposed by the law. For example, at a party you are struck and injured by a beer bottle heaved by an intoxicated partier: A tort has been committed. The partier is known as a tortfeasor, which is the term used to describe one who commits a tort. Yet, why does that partier owe you a duty not to strike you with a flying beer bottle? You have not entered into a contract with the partier whereby he has promised not to harm you in this manner. The answer is that the law imposes the duty to act with caution when it is possible to injure another or cause injury to another’s property. This duty is imposed upon all people at all times. The law requires that we all act reasonably when conducting our lives.

When a person fails to act reasonably and unintentionally injures another, that person is responsible for a negligent tort. Automobile accidents and medical malprac- tice are examples of negligent torts. When a person injures another intentionally, an intentional tort has occurred. Many intentional torts are also crimes, and this is one zone where criminal and common law coexist. If at that fraternity party you make a partier angry, and as a result he intentionally strikes you with the bottle, then he has committed both a crime and an intentional tort. Although criminal law may impose a jail sentence (or other punitive measures), tort law normally seeks only to compensate you for your injury. So, if you suffered $1,000 in medical bills to repair your broken nose, you would be entitled to that amount; but the partier cannot be sentenced to jail or otherwise be punished within the civil tort action. A separate criminal charge may be filed by the government. Although less common, tort negligence and criminal law also intersect. Extreme negligence, such as driving when drunk, that results in death or injuries can lead to both civil and criminal liabilities.

The final type of tort is the strict liability tort. In these situations liability exists even though the tortfeasor acted with extreme caution and did not intend to cause harm. An example of a strict liability tort is blasting. Whenever a mining or demolition company uses blasting, it is liable for any injuries or damages it causes to property, even if the company exercises extreme caution.

Damages that are awarded (won) in a lawsuit to compensate a party for actual loss are compensatory damages. Compensatory damages do just what the name states— compensate the injured party. However, another type of damages exists—punitive damages. Contrary to what you have learned so far, punitive damages are awarded in civil suits and are intended to prevent undesirable behavior by punishing those who commit outrageous acts. Punitive damages are often requested by plaintiffs in lawsuits but are rarely awarded. Do not worry if the idea of punitive damages confuses you

damages

■ money that a court

orders paid to a person

who has suffered damage

(a loss or harm) by the

person who caused the

injury (the violation of

the person’s rights).

tort

■ A civil (as opposed to a

criminal) wrong, other than

a breach of contract.

negligence

■ The failure to exercise

a reasonable amount of

care in a situation that

causes harm to someone

or something.

intentional

■ Determination to do

a certain thing.

strict liability

■ The legal responsibility

for damage or injury, even

if you are not at fault or

negligent.

compensatory damages

■ Damages awarded for

the actual loss suffered

by a plaintiff.

punitive damages

■ Damages that are

awarded over and above

compensatory damages

or actual damages because

of the wanton, reckless,

or malicious nature of the

wrong done by the plaintiff.

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20 Part i Criminal Law

because it appears to be a criminal law concept. Such damages are penal in nature, and many lawyers argue that they should not be allowed because a person can end up punished twice—once when convicted and sentenced by a criminal court and again by a civil court if punitive damages are awarded.

Trial courts have considerable discretion in awarding punitive damages. There is a limit, however. In the 1996 case BMW v. Gore,9 a jury verdict in actual damages of $4,000 accompanied by a punitive damages award of $4,000,000, which was reduced to $2,000,000 by the State Supreme Court, was set aside by the United States Supreme Court because it found that the plaintiff wasn’t on notice, a due process requirement, that it could be penalized by such a sum. As such, the judgement was arbitrary. Because it was a civil case, not a criminal case, the court couldn’t turn to the Eighth Amendment’s bar on excessive fines to review the award. Instead, it held that due process, the basic fairness clause that applies to all governmental conduct and decisions, expects punitive damages awards to be reasonable, considering three factors: (1) the degree of reprehen- sibility of conduct, (2) the disparity between actual harm and the punitive award, and (3) a comparison of the award to similar civil or criminal penalties. What was Gore’s injury? He had not been told that the car he purchased had been repainted to cover damage from acid rain. On remand, the trial court gave the plaintiff the choice between a new trial or accepting $50,000 in punitive damages.

In State Farm v. Campbell 10 a plaintiff sued an insurance company over a $50,000 liability policy. The jury awarded the plaintiff $2,600,00 and actual damages of $145,000,000 in punitive damages. The trial judge reduced the punitive award to $1,000,000. The Supreme Court, applying the BMW criteria, found the 9:1 ratio of actual to punitive damages excessive and remanded the case to the state court with an order to reduce the award.

In the well-known case involving the massive oil spill in Alaskan waters by one of Exxon’s oil tankers, Exxon Shipping Co. v. Baker,11 the jury award of $2.5 billion in punitive damages and $507 million in actual damages, a 5:1 ratio, was found to be excessive. Unlike the earlier cases, Exxon was not decided on due process grounds but, rather, upon maritime law. Regardless, the Court’s rejection of the 5:1 ratio is instruc- tive in all cases.

The last major case in which the Supreme Court reviewed a punitive damages award was Phillip Morris U.S.A. v. Williams.12 The jury award of $821,485.50 in actual damages and $79.5 million in punitive damages—which had been reduced by the trial judge to $32 million in punitive damages—was reversed and remanded to the trial court to reduce the punitive damages figure. In addition to being excessive, the Court rejected the award because it punished the company for harm caused to third parties, people not involved in the litigation. On remand, the award was reinstated with a different theory. Phillip Morris appealed this decision to the United States Supreme Court, which denied certiorari.

Do not get the concept of punitive damages mixed up with restitution or fines, which are discussed later in this text. Those forms of punishment, which occur in criminal cases, are limited by the Eighth Amendment’s prohibition of excessive fines, as well as by due process.

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CHAPTER 2 Chapter Outline The Distinction Between Criminal Law and

Criminal Procedure Sources of Criminal Law

The Common Law Statutory Law Ordinances Administrative Law Court Rules The Model Penal Code Constitutional Law

Ethical Considerations: Defending Individuals Charged with Horrendous Crimes

Chapter Objectives

After completing this chapter you should be able to:

• identify and describe the objectives of criminal law and begin thinking critically about these objectives.

• identify and describe the various sources of criminal law.

• brief a judicial opinion and you should have begun practicing your case analysis skills.

• outline and explain the fundamental history of the U.S. legal system.

• explain the tension between social control and freedom.

InTRoduCTIon To CRImInAl lAw

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34 Part I Criminal Law

The DisTincTion BeTween criminal law anD criminal ProceDure In all areas of legal study, a distinction is made between substance and procedure. Substantive law defines rights and obligations. Procedural law establishes the methods used to enforce legal rights and obligations. The substance of tort law defines what a tort is and what damages an injured party is entitled to recover from a lawsuit. Substan- tive contract law defines what a contract is, tells whether it must be in writing to be enforceable, who must sign it, what the penalty for breach is, and other such informa- tion. The field of civil procedure sets rules for how to bring the substance of the law before a court for resolution of a claim. To decide that a client has an injury that can be compensated under the law is a substantive decision. The question then becomes how injured clients get the compensation to which they are entitled. This is the procedural question. Procedural law tells you how to file a lawsuit, where to file, when to file, and how to prosecute the claim. Such is the case for criminal law and procedure.

Criminal law, as a field of law, defines what constitutes a crime. It establishes what conduct is prohibited and what punishment can be imposed for violating its mandates. Criminal law establishes what degree of intent is required for criminal liability. In addi- tion, criminal law sets out the defenses to criminal charges that may be asserted. Alibi, insanity, and the like are defenses and fall under the umbrella of criminal law.

Criminal procedure puts substantive criminal law into action. It is concerned with the procedures used to bring criminals to justice, beginning with police inves- tigation and continuing throughout the process of administering justice. When and under what conditions may a person be arrested? How and where must the criminal charge be filed? When can the police conduct a search? How does the accused assert a defense? How long can a person be held in custody by the police without charges being filed? How long after charges are filed does the accused have to wait before a trial is held? These are all examples of criminal procedure questions that As you will learn in later chapters, many of the rules of criminal procedure have their roots in both the U.S. and state Constitutions. Of course, statutory law is also important in this context. Do not worry if you cannot always distinguish between a procedural question and a sub- stantive one. There is considerable overlap between the two concepts.

The first part of this text is devoted to criminal law and the latter part to criminal procedure. In the remainder of the book, the term “criminal law” is used often. In most cases, this refers to general criminal law, including both substantive criminal law and criminal procedure.

sources of criminal law Criminal law is a body of many laws emanating from many sources. Today, most American criminal law is a product of legislative enactment. That has not always been so. Further, administrative regulations now make up a much larger percentage of criminal law than in the past. It is vital to successful legal research that that you understand the sources of

criminal law

■ The branch of the law

that specifies what conduct

constitutes crime and

establishes appropriate

punishments for such

conduct.

criminal procedure

■ The rules of procedure

by which criminal

prosecutions are governed.

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Chapter 2: Introduction to Criminal Law 35

criminal law. As you read this section, you will begin to see why an understanding of the functions of the three branches of government is important to an understanding of all criminal law.

The Common Law The oldest form of criminal law in the United States is the common law. The com- mon law developed in England and brought to the United States by the English colonists.

The common law, as it exists in this country, is of English origin. Founded on ancient local rules and customs and in feudal times, it began to evolve in the King’s courts and was eventually molded into the viable principles through which it continues to oper- ate. The common law migrated to this continent with the first English colonists, who claimed the system as their birthright; it continued in full force in the 13 original colo- nies until the American Revolution, at which time it was adopted by each of the states as well as the national government of the new nation.1

But what exactly is this common law? Simply stated, the common law is judge-made law. It is law that has been developed by the hands of the judges of both England and the United States. To comprehend how the common law developed, an understanding of English legal history, particularly the concepts of precedence and stare decisis, is important. Beginning with William the Conqueror in 1066 (Norman Conquest), the English monarchy began using law to reinforce the authority of the monarchy, to increase fairness over the existing feudal systems, to promote economic stability and development, and to unify the kingdom. Prior to 1066, all law in England was local and varied. In the early years after the Norman Conquest, the king sent his judges to hear cases throughout the nation. These judges returned to London, where they discussed their decisions. This process, along with the creation of royal courts, led to the development of rules of court and legal doctrines that would be applied in all cases. One such doctrine, intended to make the law the judges were applying consistent and predictable, holds that when a court renders a legal decision, that decision is binding on itself and its inferior courts, whenever the same issue arises again in the future.

The decision of a court is known as a precedent. The principle that inferior courts will comply with that decision when the issue is raised in the future is known as “stare decisis et non quieta movera” (a Latin phrase meaning “stand by precedents and do not disturb settled points”). The Supreme Court of Indiana expressed its view of stare decisis:

Under the doctrine of stare decisis, this Court adheres to a principle of law which has been firmly established. Important policy considerations militate in favor of continuity and predictability in the law. Therefore, we are reluctant to disturb longstanding prec- edent which involves salient issues. Precedent operates as a maxim for judicial restraint to prevent the unjustified reversal to a series of decisions merely because the composi- tion of the court has changed.2

common law

■ The legal system that

originated in England and

is composed of case law

and statutes that grow

and change, influenced by

ever-changing custom and

tradition.

stare decisis

■ (Latin) The doctrine that

judicial decisions stand

as precedents for cases

arising in the future.

precedent

■ Prior decisions of

the same court, or a

higher court, that a judge

must follow in deciding

a subsequent case

presenting similar facts and

the same legal problem,

even though different

parties are involved and

many years have elapsed.

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36 Part I Criminal Law

Most of the early decisions were based upon feudal law. The impact, however, of having royal courts with national authority recognize a feudal legal principle, and subsequently applying that principle throughout the kingdom, was that England, for the first time in its history, had a set of laws that were common to all, and hence is the explanation for the name of this type of law.

The common law, as frequently defined, includes those principles, usages, and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express or positive statute or other written declaration, but upon statements of principles found in the decisions of courts. The common law is inseparably identified with the decisions of the courts and can be determined only from such decisions in former cases bearing upon the subject under inquiry. As distinguished from statutory or written law, it embraces the great body of unwritten law founded upon general custom, usage, or common consent, and based upon natural justice or reason. It may otherwise be defined as custom long acquiesced in or sanctioned by immemorial usage and judicial decision. . . .

In a broader sense the common law is the system of rules and declarations of prin- ciples from which our judicial ideas and legal definitions are derived, and which are continually expanding. It is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs, but is rather the embodiment of broad and comprehensive unwritten principles, inspired by natural rea- son and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men.3

As stated, the common law is fluid and dynamic, changing to meet societal values and expectations. As one court stated, “The common law of the land is based upon human experience in the unceasing effort of an enlightened people to ascertain what is right and just between men.”4

While courts (and the monarch) were responsible for making law in the early years of the common law, the situation changed with the advent of Parliament in the thir- teen and fourteenth centuries. While the early Parliament had very limited authority, it eventually evolved into the general lawmaking body of England, displacing courts in the lawmaking function. Today, legislatures in all common law nations are the pri- mary lawmakers. In the United States, the Congress of the United States is the federal lawmaker and the legislatures of the states are each responsible for making state laws. However, for reasons detailed later, courts continue to play an important role in the development of the common law.

Historically what happened in criminal law is that courts defined crimes, as there was usually no legislative enactment that determined what acts should be criminal. As time passed, established “common-law crimes” developed. First the courts determined what acts should be criminal, and then the specifics of each crime developed; what exactly had to be proved to establish guilt, what defenses were available, and what pun- ishment was appropriate for conviction. Although there is great similarity between the common laws of the many jurisdictions in the United States, differences exist because

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Chapter 2: Introduction to Criminal Law 37

judicial decisions of one state are not binding on other states. However, courts may look outside their jurisdictions for opinions to guide them in their decisionmaking if no court in their jurisdiction has addressed the issue under consideration. Each state, as a separate and sovereign entity, has the power to decide whether to adopt the common law, in whole or in part, or to reject it.

The 13 original states all adopted the common law. Most did so through their state constitutions. Today, only Louisiana has not adopted the common law in some form. However, for reasons you will learn later, approximately half of the states no longer rec- ognize common-law crimes.5 Even in those states, though, the civil common law and portions of the criminal common law (i.e., defenses to criminal charges) continue in force. Most states have expressly adopted the common law either by statute or by con- stitutional authority. Generally, there is no federal common law; rather, federal courts, in certain civil cases, apply the common law of the states in which they sit. For example, a U.S. district court in New Jersey will apply New Jersey common law. Even though this may appear strange to you, it is common practice for federal courts to apply state law. Further discussion of this topic is beyond the scope of this text.

Finally, be aware that common law has been modified and even abolished in some jurisdictions. The modifications to, and nullifications of, common law have come about in many different manners. In some instances, courts have decided that the com- mon law must be changed to meet contemporary conditions or to bring the law into conformity with state or federal constitutional principles. In extreme situations, parts of the common law have been totally abolished. Because legislatures are charged with the duty of making the laws, they have the final word on the status of the common law, unless there is a state constitutional provision stating otherwise. Some legislatures have expressly given their judiciaries the authority to modify the common law, often with limitations. State legislatures are free to modify, partially abolish, or wholly abolish the common law as long as their own state constitution or the U.S. Constitution is not violated by so doing.

The common law normally is inferior to legislation. This means that if a legislature acts in an area previously dealt with by common law, the new statute controls, absent a statement by the legislature to the contrary. For example, assume that under common law adultery was a crime in State Y. The legislature of State Y can change this by simply enacting a statute that provides that adultery is not criminal. The legislature may also amend the common law by continuing to recognize common-law adultery, but change the penalty for violation. If a state constitution, statute, or judicial decision has not abrogated the common law, presume that it continues in effect.

The Principle of Legality The question of whether common-law crimes should continue to exist is debat- able. Those who favor permitting common-law crimes like that it permits courts to “fill in the gaps” left by the legislatures when those bodies either fail to foresee all potential crimes or simply forget to include a crime that was foreseen. However, a separation-of-powers question is raised by this scenario: namely, should the judicial branch actively second-guess or clean house for the legislative branch? Such conduct

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38 Part I Criminal Law

does appear to be the exercise of legislative authority. However, few people want intentionally dangerous or disruptive behavior not to be criminalized, and it appears to be impossible for legislatures to foresee all possible acts that are dangerous and disruptive.

Those who oppose a common law of crimes point to the concept embodied in the phrase “nullum crimen sine lege,” which translates roughly to “there is no crime if there is no statute.” Similarly, “nulla poena sine lege” has come to mean that “there shall be no punishment if there is no statute.” These concepts, when considered in concert, insist that the criminal law must be written, that the written law must exist at the time that the accused committed the act in question, and that criminal laws be more precise than civil laws.6 This is the principle of legality.

The legality principle is founded on the belief that all people are entitled to know, prior to committing an act, that the act is criminal and that punishment could result from such behavior. This is commonly referred to as notice. The idea is sensible, as it appears to be a rule consistent with general notions of fairness and justice, not only in the United States but for peoples around the world. Does it appear fair to you to hold individuals criminally accountable for taking an act that they could not have known was prohibited? The legality principle remedies the notice problem by requiring that written law be the basis of criminal liability, not unwritten common law. Understand that the law imposes a duty on all people to be aware of written law; thus, all people are presumed to be aware of criminal prohibitions. The Keeler case discusses the legality principle. Today, the principle of legality is subsumed in the right to due process (a fair process) found in the Fifth and Fourteenth Amendments to the Constitution of the United States and in the constitutions of the various states.

how To Brief a case

You are about to read the first judicial decision found in this text. Decisions of courts are often written and are commonly referred to as judicial opinions or cases. These cases are published in law reporters so they may be used as precedent. Many cases appear in this text for your education. Your instructor may also require that you read other cases, often from your jurisdiction. The cases included in your book have been edited, citations have been omitted, and legal issues not relevant to the subject discussed have been excised. There is a common method that students of the law use to read and analyze, also known as briefing, cases. Please go to Appendix C now to learn more about how to brief a case.

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Chapter 2: Introduction to Criminal Law 39

Most judicial opinions are written using a similar format. First, the name of the case appears with the name of the court, the cite (location where the case has been published), and the year. When the body of the case begins, the name of the judge, or judges, responsible for writing the opinion appears directly before the first paragraph. The opinion contains an introduction to the case, which normally includes the procedural history of the case. This is followed by a summary of the facts that led to the dispute, the court’s analysis of the law that applies to the case, and the court’s conclusions and orders, if any.

Most opinions used here are from appellate courts, where many judges sit at one time. After the case is over, the judges vote on an outcome. The majority vote wins, and the opinion of the majority is written by one of those judges. If other judges in the majority wish to add to the majority opinion, they may write one or more concurring opinions. Concurring opinions appear after majority opinions in the law reporters. When judges who were not in the majority feel strongly about their position, they may file dis- senting opinions, which appear after the concurring opinions, if any. Only the majority opinion is law, although concurring and dissenting opinions are often informative.

During your legal education you may be instructed to brief a case. Even if your instructor does not require you to brief cases, you may want to, as many students understand a case better after they have completed a brief. Here are suggestions for reading and understanding cases:

1. Read the case. On your first reading, do not take notes; simply attempt to get a feel for the case. Then read the case again and use the following suggested method of briefing.

2. State the relevant facts. Often, cases read like little stories. You need to weed out the facts that have no bearing on the subject you are studying.

3. Identify the issues. Issues are the legal questions discussed by the court.

4. State the applicable rules, standards, or other law, as they apply to the issues you have identified.

5. Summarize the court’s decision and analysis. Why and how did the court reach its conclusion? Note whether the court affirmed, reversed, or remanded the case.

For a more thorough discussion of briefing and to read a sample brief, see Appendix C.

(c o nt i nu e d)

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40 Part I Criminal Law

In this proceeding for writ of prohibition, we are called upon to decide whether an unborn viable fetus is a “human being” within the meaning of the California statute defining murder. We conclude that the legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.

The evidence received at the preliminary exam- ination may be summarized as follows: Petitioner and Teresa Keeler obtained an interlocutory decree of divorce on September 27, 1968. They had been married for sixteen years. Unknown to the peti- tioner, Mrs. Keeler was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She subsequently began living with Vogt in Stockton, but concealed the fact from petitioner. Petitioner was given custody of their two daughters, aged 12 and 13 years, and under the decree Mrs. Keeler had the right to take the girls on alternate weekends.

On February 23, 1969, Mrs. Keeler was driving on a narrow mountain road in Amador County af- ter delivering the girls to their home. She met peti- tioner driving in the opposite direction; he blocked the road with his car, and she pulled over to the side. He walked to her vehicle and began speaking to her. He seemed calm, and she rolled down her window to hear him. He said, “I hear you’re preg- nant. If you are, you had better stay away from the girls and from here.” She did not reply, and he opened the car door; as she later testified, “He as- sisted me out of the car . . . [I]t wasn’t rough at this time.” Petitioner then looked at her abdomen and became “extremely upset.” He said, “You sure are. I’m going to stomp it out of you.” He pushed her against the car, shoved his knee into her abdomen, and struck her in the face with several blows. She fainted, and when she regained consciousness, petitioner had departed.

Mrs. Keeler drove back to Stockton, and the police and medical assistance were summoned. She had suffered substantial facial injuries, as well as ex- tensive bruising of the abdominal wall. A Caesarian section was performed, and the fetus was examined in utero. Its head was found to be severely fractured, and it was delivered stillborn. The pathologist gave as his opinion that the cause of death was skull frac- ture with consequent cerebral hemorrhaging, that death would be immediate, and that the injury could have been the result of force applied to the mother’s abdomen. There was no air in the fetus’ lungs, and the umbilical cord was intact. . . .

The evidence was in conflict as to the estimated age of the fetus; the expert testimony on the point, however, concluded “with reasonable medical cer- tainty” that the fetus had developed to the stage of viability, i.e., that in the event of premature birth on the date in question, it would have had a 75 percent to 96 percent chance of survival.

An information was filed charging petitioner, in count I, with committing the crime of murder. . . .

Penal Code section 187 provides: “Murder is the unlawful killing of a human being, with malice aforethought.” The dispositive question is whether the fetus which petitioner is accused of killing was, on February 23, 1969, a “human being” within the meaning of the statute. If it was not, petitioner can- not be charged with its “murder”. . . .

■ ■ ■

We conclude that in declaring murder to be the unlawful and malicious killing of a “human being,” the Legislature of 1850 intended that term to have the settled common law meaning of a person who had been born alive, and did not intend the act of feticide—as distinguished from abortion—to be an offense under the laws of California.

■ ■ ■

KEELER V. SUPERIOR COURT Supreme Court of California 2 Cal. 3d 619, 470 P.2d 617 (1970)

Cont.d

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Chapter 2: Introduction to Criminal Law 41

The People urge, however that the sciences of obstetrics and pediatrics have greatly progressed since 1872, to the point where, with proper medical care, a normally developed fetus prematurely born . . . is “viable” . . . since an unborn but viable fetus is now fully capable of independent life. . . . But we cannot join in the conclusion sought to be deduced: we cannot hold this petitioner to answer for murder by reason of his alleged act of killing an unborn— even though viable—fetus. To such a charge there are two insuperable obstacles, one “jurisdictional” and the other constitutional.

Penal Code section 6 declares in relevant part that “No act or omission” accomplished after the code has taken effect “is criminal or punishable, ex- cept as prescribed by this code. . . .” This section embodies a fundamental principle of our tripartite form of government, i.e., that subject to the con- stitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch. Stated differently, there are no common law crimes in California. . . . In order that a public offense be committed, some statute, ordinance or regulation prior in time to the commission of the act, must denounce it.

■ ■ ■

Applying these rules to the case at bar, we would undoubtedly act in excess of the judicial power if we were to adopt the People’s proposed construction of section 187. As we have shown, the Legislature has defined the crime of murder in

California to apply only to the unlawful and mali- cious killing of one who has been born alive. We recognize that the killing of an unborn but viable fetus may be deemed by some to be an offense of similar nature and gravity; but as Chief Justice Marshall warned long ago: “It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enu- merated in the statute, because it is of equal atroc- ity, or of kindred character, with those which are enumerated.” . . . Whether to thus extend liability for murder in California is a determination solely within the province of the Legislature. For a court to simply declare, by judicial fiat, that the time has now come to prosecute under section 187 one who kills an unborn but viable fetus would indeed be to rewrite the statute under the guise of construing it. . . . to make it “a judicial function”. . . “raises very serious questions concerning the principle of sepa- ration of powers.”

The second obstacle to the proposed judicial enlargement of section 187 is the guarantee of due process of law. . . .

The first essential of due process is fair warning of the act which is made punishable as a crime. “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will ren- der them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.”

Cont.d

KEELER V. SUPERIOR COURT (c o nt i nu e d)

Do not forget that Keeler is an opinion of the California Supreme Court; therefore, it is not the law of all of the United States. Similar decisions have been made in other states, however.

Also note that the court determined that the common law violates “ordinary notions of fair play” and that no warning or notice was given to Keeler that his act could be defined as murder. As the court noted, these requirements are embodied in

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42 Part I Criminal Law

the due process clauses of the U.S. Constitution and the constitutions of the many states. There are two dimensions to due process, procedural and substantive. Procedural due process, in both civil and criminal law, requires that individuals be put on notice of impending government action, be given an opportunity to be heard and to pres- ent evidence, and in some cases, benefit from other rights, such as having counsel appointed and having the case heard by a jury. Substantive due process recognizes individual rights to act or not to act. For example, privacy is not explicitly protected in the Constitution of the United States. Regardless, the Supreme Court has found an implicit right to privacy in the due process clauses’ protection of liberty. Through this implicit right, the Court has invalidated laws prohibiting interracial marriage, pro- hibiting the use of contraception by married persons, and prohibiting women from ending pregnancies in some circumstances.

Although common law crimes are suspect when viewed through a due process lens, the United States Supreme Court has determined that states may, under some circumstances, recognize common law crimes The court in Keeler based its decision on the California Constitution’s Due Process Clause. You should remember that the California Supreme Court is the final word on California law, and Keeler teaches you that the California Constitution provides more protection than the U.S. Constitution in this regard. Still, the U.S. Constitution places limits on the use of the common law by the states to create crimes. This is done primarily through the Due Process Clause and the provision prohibiting ex post facto laws. You will learn more about the Due Process and Ex Post Facto Clauses later in this book when we examine defenses to criminal charges. If states, such as California in the Keeler case, want to increase a defendant’s rights beyond what the U.S. Constitution protects, they may do so through their own statutes or constitutions.

Other Uses of the Common Law Even in those jurisdictions that have abandoned use of the common law to create crimes, the common law continues to be important for many reasons.

First, many statutes mirror the common law in language. That is, legislatures often simply codify the common law’s criminal prohibitions. Hence, when a question arises concerning whether a particular act of a defendant is intended to fall under the intent of a criminal prohibition, the case law handed down prior to codification of the com- mon law may answer the question. The result is that the crime remains the same but the source of the prohibition has changed. It is also possible for a legislature to change only part of a common-law definition and leave the remainder the same. If so, prior case law may be helpful when considering the unaltered portion of the definition.

Second, many of the concepts developed at the common law are still recognized. For example, the distinction between felonies and misdemeanors continues today. Al- though jurisdictions vary in definition, a felony is a serious crime usually punishable by more than one year in prison. A misdemeanor is less serious and usually is punishable by one year or less in jail.

Third, legislatures occasionally enact a criminal prohibition without establishing the potential penalty for violation. In such cases, courts will often look to the penalties applied to similar common law crimes for guidance.

due process

■ The due process clauses of the Fifth and Fourteenth

Amendments to the U.S.

Constitution require that no

persons be deprived of life,

liberty, or property without

having notice and a real

chance to present their side

in a legal dispute.

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Chapter 2: Introduction to Criminal Law 43

Fourth, in addition to defining crimes, the common law established many proce- dures that were used to adjudicate criminal cases. These procedures most often dealt with criminal defenses. What defenses could be raised, as well as how and when, were often answered by the common law. For example, the various tests to determine if a defendant was sane when an alleged crime was committed were developed under the common law. If a legislature has not specifically changed these procedural rules, they remain in effect, even if the power of courts to create common-law crimes has been abolished.

Statutory Law As you have already learned, the legislative branch is responsible for the creation of law. You have also learned that legislatures possess the authority to modify, abolish, or adopt the common law, in whole or in part. During the nineteenth century, the codification of criminal law began.7 This effectively displaced the role of the judiciary in defining crimes. Today, nearly all criminal law is found in criminal codes.

Although the power of the legislative branch to declare behavior criminal is sig- nificant, there are limits. The constitutions of the United States and of the many states contain limits on such state and federal authority. Most of these limits are found in the Bill of Rights. For example, the First Amendment to the federal Constitution prohibits government, with few exceptions, from punishing an individual for exercising choice of religion and for expressing opinions and thoughts. If a legislature enacts a law that violates a constitutional provision, it is the duty of the judicial branch to declare the law void. This is the power of judicial review, previously discussed in Chapter 1. For now, you need only understand that legislatures do not have unlimited authority to create criminal law.

Ordinances The written laws of municipalities are termed ordinances. Ordinances are laws enacted by city, county, and other local governments. Ordinances can be administrative or civil in nature, e.g., zoning, building, construction, and related matters). Municipali- ties also be empowered by state law to make criminal laws. In some instances, criminal ordinances mirror state statutes but apply to those acts that occur within the jurisdic- tion of the city. For example, many cities have assault and battery ordinances, just as their states have assault and battery statutes. Traffic and parking violations may also be criminal, although some cities pursue these as civil violations, which permits enabling the state to pursue criminal charge for the same act.

Ordinances may not conflict with state or federal law. Any ordinance that is incon- sistent with higher law may be invalidated by a court. States limit the power of cities to punish for ordinance violations, and most city court trials are to the bench, not to a jury.

Administrative Law It is likely that during your life, you have likely had to deal with several administrative agencies. Agencies are governmental units, federal, state, and local, that administer the affairs of the government. Although often lumped together, the agencies are actually

ordinance

■ A local or city law, rule,

or regulation.

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44 Part I Criminal Law

regulation

■ Law created

by governmental

administrative agencies.

of two types: social welfare and regulatory. The two names reflect the purposes behind each type. Social welfare agencies put into effect government programs. For example, in Indiana, the State Department of Public Welfare administers the distribution of public money to those deemed needy. In contrast, state medical licensing boards are regulatory, because their duty is to oversee and regulate the practice of medicine in the various states. Regulatory and administrative agencies both receive their delegation of authority from the legislative branch.

Because legislatures do not possess the time or the expertise to write precise statutes, they often enact statutes that are very general, and in those statute grant one or more administrative agencies the authority to make more precise laws. Just as legislative enact- ments are known as statutes (or codes), administrative laws are known as regulations or rules. The extent to which a legislature may delegate its lawmaking authority, if at all, has been a continuing source of disagreement. Some scholars argue that legislatures may not grant such an important legislative function to agencies. Doing so is believed to be a violation of the principle of separation of powers, because agencies usually fall under the control of the executive branch, and the legislative branch is not permitted to delegate its powers to the executive branch, or vice versa.

In spite of these separation of powers problems, the United States Supreme Court has determined that agencies may create regulations that have the effect of law, includ- ing criminal prohibitions. The Court’s opinion on how much authority may be del- egated to administrative agencies has undergone a few changes over the years. In 1911, the United States Supreme Court handed down the opinion in the Grimaud case.

Grimaud is the law today. Agencies may be delegated penal rulemaking author- ity. However, the Supreme Court has said that although Congress may delegate to an agency the authority to make criminal laws, it may not delegate the responsibility of establishing penalties to an agency, with the possible exception of small fines. Congress must either set the precise penalty or set a range from which an agency can further determine the appropriate penalty.

An interesting question concerns how much guidance Congress must give an agency in its delegation. Because Congress is delegating its power to create law to an agency, it is expected to give the agency some guidance as to what it wants. This limits the discretion

finDinG aDminisTraTiVe reGulaTions

Federal administrative rules are found in the Code of Federal Regulations (C.F.R.). New rules that have not yet been added to the C.F.R. may be found in the Federal Register. Each state has its counterpart publications. For example, in Florida they are the Florida Administrative Code and the Florida Administrative Weekly, respectively.

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Chapter 2: Introduction to Criminal Law 45

The defendants were indicted for grazing sheep on the Sierra Forest Reserve without having obtained the permission required by the regulations adopted by the Secretary of Agriculture. They demurred on the ground that the Forest Reserve Act of 1891 was unconstitutional, insofar as it delegated to the Secretary of Agriculture power to make rules and regulations and made a violation thereof a penal offense.

■ ■ ■

From the various acts relating to the establish- ment and management of forest reservations it appears that they were intended “to improve and protect the forest and to secure favorable condi- tions to water flows.” . . . It was also declared that the Secretary “may make such rules and regulations and establish such service as will insure the objects of such reservation, namely, to regulate their occu- pancy and use to prevent the forests thereon from destruction; and any violation of the provisions of this act or such rules and regulations shall be punished,” as is provided in [the statute].

Under these acts, therefore, any use of the res- ervations for grazing or other lawful purpose was required to be subject to the rules and regulations established by the Secretary of Agriculture. To pas- ture sheep and cattle on the reservation, at will and without restraint, might interfere seriously with the

accomplishment of the purposes for which they were established. But a limited and regulated use for pasturage might not be inconsistent with the ob- ject sought to be attained by the statute. The deter- mination of such questions, however, was a matter of administrative detail. What might be harmless in one forest might be harmful to another. What might be injurious at one stage of timber growth, or at one season of the year, might not be so at another.

In the nature of things, it was impracticable for Congress to provide general regulations for these various and varying details of management. Each reservation had its peculiar and special features; and in authorizing the Secretary of Agriculture to meet these local conditions, Congress was merely conferring administrative functions upon an agent, and not delegating to him legislative power.

■ ■ ■

It must be admitted that it is difficult to de- fine the line which separates the legislative power to make laws from the administrative authority to make regulations. This difficulty has often been rec- ognized [as] referred to by Chief Justice Marshall . . . : “It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.” What

UNITED STATES V. GRIMAUD United States Supreme Court 220 U.S. 506 (1911)

of the agency and prevents it from becoming a substitute legislature.8 Normally, Congress must provide an intelligible principle or sufficient standards to guide an agency.9 It takes little congressional guidance to satisfy these tests. Due to the special nature of criminal law (i.e., the deprivation to liberty that may result from a criminal conviction), defen- dants have argued that Congress must be more specific, or give an agency less discretion, when delegating the authority to create penal rules, as opposed to non-penal rules. The Supreme Court refused to answer that question in Touby v. United States.

(continued)

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46 Part I Criminal Law

were these non-legislative powers which Congress could exercise but which also might be delegated to others was not determined, for he said: “The line has not been exactly drawn which separates those important subjects, which must be entirely regu- lated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.”

From the beginning of the Government, various acts have been passed conferring upon the execu- tive officers power to make rules and regulations— not for the government of their departments but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions “power to fill up the details” by the establishment of administrative rules and

regulations, the violation of which could be pun- ished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress or measured by the injury done.

■ ■ ■

It is true that there is no act of Congress which, in express terms, declares that it shall be unlawful to graze sheep on a forest reserve. But the statutes, from which we have quoted, declare that the privi- lege of using reserves for “all proper and lawful purposes” is subject to the proviso that the person shall comply “with the rules and regulations cover- ing such forest reservation.” The same act makes it an offense to violate those regulations.

■ ■ ■

The Secretary of Agriculture could not make rules and regulations for any and every purpose. As to those here involved, they all regulate matters clearly indicated and authorized by Congress.

UNITED STATES V. GRIMAUD (c o nt i nu e d)

Petitioners were convicted of manufacturing and conspiring to manufacture “Euphoria,” a drug temporarily designated as a schedule I controlled substance pursuant to § 201(h) of the Controlled Substances Act. We consider whether § 201(h) unconstitutionally delegates legislative power to the Attorney General and whether the Attorney General’s subdelegation to the Drug Enforcement Administration (DEA) was authorized by statute. . . .

[T]he Controlled Substances Act (Act) . . . estab- lishes five categories or “schedules” of controlled substances, the manufacture, possession, and dis- tribution of which the Act regulates or prohibits. Violations involving schedule I substances carry

the most severe penalties, as these substances are believed to pose the most serious threat to public safety. Relevant here, § 201(a) of the Act authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another. . . .

When adding a substance to a schedule, the Attorney General must follow specified procedures. First, the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (HHS), together with a recom- mendation as to whether the substances should be controlled. A substance cannot be scheduled if the Secretary recommends against it. . . . Second, the

TOUBY V. UNITED STATES United States Supreme Court 500 U.S. 160 (1991)

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Chapter 2: Introduction to Criminal Law 47

Attorney General must consider eight factors with respect to the substance, including its potential for abuse, scientific evidence of its pharmacological ef- fect, its psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled. . . . Third, the Attor- ney General must comply with notice-and-hearing provisions of the Administrative Procedure Act . . . which permit comment by interested parties. . . . In addition, the Act permits any aggrieved person to challenge the scheduling of a substance by the Attorney General in a court of appeals. . . .

It takes time to comply with these procedural requirements. From the time when law enforce- ment officials identify a dangerous new drug, it typically takes 6 to 12 months to add it to one of the schedules. . . . Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differing slightly in chemical com- position, so that existing schedules did not apply to them. These “designer drugs” were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions. . . .

To combat the “designer drug” problem, Con- gress in 1984 amended the Act to create an expe- dited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is “necessary to avoid an imminent hazard to the public safety.” . . . Temporary scheduling un- der § 201(h) allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. The Attorney General need consider only three of the eight factors required for permanent scheduling. . . . Rather than comply with the APA notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of proposed scheduling in the Federal Register. . . . Notice also must be transmitted to the Secretary

of HHS, but the Secretary’s prior approval of a pro- posed scheduling is not required. . . . Finally . . . an order to schedule a substance temporarily “is not subject to judicial review.”

Because it has fewer procedural requirements, temporary scheduling enables the government to respond more quickly to the threat posed by dan- gerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process. . . .

The Attorney General promulgated regulations delegating to the DEA his powers under the Act, including the power to schedule controlled substances on a temporary basis. Pursuant to that delegation, the DEA Administrator issued an order scheduling . . . “Euphoria” as a schedule I controlled substance. . . .

While the temporary scheduling order was in effect, DEA agents, executing a valid search war- rant, discovered a fully operational drug labora- tory in Daniel and Lyrissa Touby’s home. The Toubys were indicted for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment on the grounds that § 201(h) unconstitu- tionally delegates legislative power to the Attorney General. . . . The United States District Court for the District of New Jersey denied the motion to dismiss . . . and the Court of Appeals for the Third Circuit af- firmed. . . . We granted certiorari . . . and now affirm.

The Constitution provides that “all legisla- tive Powers herein granted shall be vested in a Congress of the United States.” From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another Branch of govern- ment. “The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.” . . .

TOUBY V. UNITED STATES (c o nt i nu e d)

(continued)

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48 Part I Criminal Law

So, an agency may be delegated the authority to declare acts criminal. Congress must provide at least an “intelligible principle,” and possibly more, when making this type of delegation. Congress may not delegate the authority to set a penalty to an agency, although it may allow the agency to set the penalty for a violation from within statutory guidelines. An agency may not, however, establish more serious penalties, such an imprisonment, even if the sentences fall within statutory limits.

While agencies may not sentence individuals to imprisonment, legislatively endorsed, noncriminal deprivations of freedom may be ordered by agencies in rare circumstances, such as during quarantines, for psychiatric evaluations and treatment, and to detain illegal immigrants.

An interesting issue that has arisen in recent years is the extent to which private parties may be delegated governmental powers. For example, in some states, fines levied by homeowner and condominium associations are enforceable in courts. While this area of law is in development and much remains to be defined, a few general principles can be deduced. First, private parties may not, or have very limited authority to, punish individuals. Second, when private parties are acting on the behalf of a government, they are bound by the same rules that apply to the government.10

Court Rules Just as administrative agencies need the authority to “fill in the gaps” of legislation because statutes are not specific enough to satisfy all of an agency’s needs, so do courts.

TOUBY V. UNITED STATES (c o nt i nu e d)

We have long recognized that nondelega- tion does not prevent Congress from seeking as- sistance, within proper limits, from its coordinate Branches. . . . Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress “lay[s] down by legislative act an intelligible prin- ciple to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” . . .

Petitioners wisely concede that Congress has set forth in § 201(h) an “intelligible principle” to con- strain the Attorney General’s discretion to schedule controlled substances on a temporary basis. . . . Peti- tioners suggest, however, that something more than an “intelligible principle” is required when Congress authorizes another Branch to promulgate regulations

that contemplate criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether or not more specific guid- ance is in fact required. . . . We need not resolve the issue today. We conclude that § 201(h) passes muster even if greater congressional specificity is required in the criminal context.

Although it features fewer procedural require- ments than the permanent scheduling statute, § 201(h) meaningfully constrains the Attorney General’s discretion to define criminal conduct. . . .

It is clear that in § 201(h) and § 202(b), Congress has placed multiple restrictions on the Attorney General’s discretion to define criminal conduct. These restrictions satisfy the constitutional require- ments of the nondelegation doctrine.

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Chapter 2: Introduction to Criminal Law 49

The United States Congress and all of the state legislatures have enacted some form of statute establishing general rules of civil and criminal procedure. However, to fill in the gaps left by legislatures, courts adopt court rules, which also govern civil and criminal processes. Although court rules deal with procedural issues (such as service of process, limits on the length of briefs and memoranda, and timing of filing) and not substan- tive issues, they are important. Of course, court rules may not conflict with legislative mandates. If a rule does conflict with a statute, the statute is controlling. One exception to this rule may be when the statute is unconstitutional and the rule is a viable alterna- tive, but discussion of this situation is best left to a course on constitutional law and judicial process.

Most court rules are drafted under the direction of the highest court of the state and become effective by either vote of the court or presentation to the state legislature for ratification. In the federal system, the rules are drafted by the Judicial Conference under the direction of the Supreme Court and then presented to Congress. If Congress fails to act to nullify the rules, they become law. Of course, Congress may amend the rules at will. Many jurisdictions also have local rules, that is, rules created by local courts for practice in those courts. The rules cannot conflict with either statutes or higher court rules. In the federal system, district courts adopt local rules. Being familiar with the rules of the courts in your jurisdiction is impera- tive. If you are not, you may miss important deadlines, file incomplete documents, or have your filings stricken.

The Model Penal Code On occasion, the Model Penal Code will be referenced in this text. Actually entitled Model Penal Code and Commentaries, it was drafted by a group of scholars and practi- tioners expert in criminal law while working for the American Law Institute, a private organization. The intent of the drafters of the Code was to draft a consistent, thought- ful code that could be recommended to the states for adoption. The code itself is not law until adopted by a legislature.

According to one source, by 1985, 34 states had “enacted widespread criminal-law revision and codification based on its provisions; fifteen hundred courts had cited its provisions and referred to its commentary.”11 The Model Penal Code has been included in this text, in edited form, as Appendix B. You should refer to that as the Code is dis- cussed in the following chapters.

Constitutional Law Finally, constitutional law is included in this list of sources of criminal law, not because it defines what conduct is criminal, but because of its significant impact on criminal law generally. In particular, the U.S. Constitution, primarily through the Bill of Rights, is responsible for establishing many of the rules governing criminal procedure. This has been especially true in the past few decades. You will become more aware of why this is true as you learn more about criminal law and procedure. Pay close attention to the dates of the cases included in this text (see Exhibit 2–1); it is likely that many were handed down in your lifetime.

rules of court

■ Rules promulgated

by the court, governing

procedure or practice

before it.

Model Penal Code

■ A proposed criminal

code prepared jointly

by the Commission on

Uniform State Laws and

the American Law Institute.

F O S T E R , C E D R I C 1 6 9 2 T S

333

CHaPTer 10 Chapter Outline Criminal Procedure Defined A Common-Law, Adversarial,

and Accusatorial System The Due Process Model The Participants

Law Enforcement Officers Prosecutors Judges Defense Attorneys Victims

Liability of Governments and Their Officials

Ethical Considerations: Attorney Compensation

Chapter Objectives

After completing this chapter, you should be able to:

• explain the common-law, adversarial nature of the U.S. criminal justice systems.

• think critically about the due process and crime control models of criminal justice.

• describe the role and the ethics considerations of major players in the criminal justice system: law enforcement officers, defense attorneys, prosecutors, victims, and judges.

• describe the basic liability that government officials can incur when performing their duties.

• identify the material facts and legal issues in two-thirds of the cases you read and describe the court's analyses and conclusions in the cases.

inTroduCTion and ParTiCiPanTs

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334 Part ii Criminal Procedure

Criminal ProCedure defined The second section of this text addresses criminal procedure. Criminal procedure, as a field of law, describes the methods used in bringing an alleged criminal to justice. To state it another way, criminal procedure puts substantive criminal law into action.

Each state and the federal government has its own procedural rules. In some instances, the variation is significant. For the purpose of this text, most references will be to federal procedure. Many federal procedural rules can be found in the U.S. Code. A good number of procedures are judicially created (and approved by Congress) and are found in the Federal Rules of Criminal Procedure (Fed. R. Crim. P.). Finally, the constitutions of the national government and the states play a major role in defining procedures of criminal adjudications.

What follows is a discussion of the constitutional aspects of criminal procedure; the process, from investigation to appeal; searches and seizures; arrests; confessions and admissions; and the right to counsel.

a Common-law, adversarial, and aCCusatorial system The colonists brought with them the common law of England. Today all states, except Louisiana, which is of the civil law family, are of the common law family.

In addition to being common law in nature, the legal system is adversarial. Adversarial adjudications resemble sporting events. There are two opposing parties and a neutral umpire. In criminal adjudications, these roles are played by the defendant, prosecutor, and judge. The judge in criminal adjudications is a passive participant, usu- ally becoming involved only as needed by the parties or as required by law. Of course, the approach of judges varies; and some are more proactive than others. A pure adver- sarial system is not employed in the United States, and judges are expected to supervise the proceedings to assure fairness. The adversary system is built upon the theory that the truth is more likely to be discovered when there are two competing parties, each conducting its own investigation of the facts, asserting differing theories of fact and law, and each presenting its own case to the court.

adversary system

■ The system of law in the

United States. The judge

acts as the referee between

opposite sides (between

two individuals, between

the state and an individual,

etc.) rather than acting

as the person who also

makes the state's case or

independently seeks out

evidence.

wHy louisiana is different

As you learn the law, you will learn that the law of Louisiana is often differ- ent from the rest of the states because, unlike the rest of the colonies, which were founded by the English (who imported the common law), Louisiana was

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Chapter 10: Introduction and Participants 335

Also, in the common law, judges are expected to remain impartial, neutral, and detached. This is believed to increase the fairness of the proceedings. In civil law ju- risdictions, on the other hand, judges sometimes develop an opinion or theory, which may limit their consideration of alternatives and accordingly, limit the facts that are sought and the theories that are advanced. In the adversarial system, the parties are largely responsible for development of the case—that is, discovery of the evidence and, accordingly, the issues of law as well.

The adversarial system has its critics. Opponents contend that the truth is not found because the system encourages the opposing parties to present distorted, mis- leading, and sometimes untruthful accounts of the facts. The fact finder, who is not part of the investigative process, is often left to choose between polarized versions of the same event. The adversarial system is also challenged as being unfair because it assumes two equally competent competing parties. However, because of differences in the abili- ties of counsel and the respective powers of the parties, this premise is questionable.

In addition to being adversarial, the criminal justice system is accusatorial. This means that the government, as the accuser, bears the burden of proving a defendant's guilt.

founded by the French. In 1712 French emperor Louis XIV issued a Charter for the development of Louisiana with an order requiring the application of French law, also known as civil law. But for the period between 1762 and 1800, when the territory was under the control of the Spanish, French law applied. In 1803 the United States took possession of the territory. The first territorial legislature of Louisiana chose to retain the civil law.

So, how is civil law different from common law? As you have learned, the common law developed through judicial pronouncements, in response to specific disputes. The civil law, which was born in France, is more “legislative” and less “judicial.” The legislative code is the primary source of law, not judicial decisions. Even more, judges have less authority to inter- pret and expand the meaning of the law in civil-law nations. The procedures of the two families of law are also different. Many historians cite the year 529 as marking the birth of the civil law. In that year, Roman emperor Justinian issued his famous Corpus Juris Civilis. In 1804, Napoleon issued his own legal code, which has been the foundation for many codes still in existence, including Louisiana's Code. There are four major legal families recognized by contemporary comparativists: common, civil, Islamic, and socialist. This author includes a fifth—traditional and transitional law.

Even though it is a member of the civil law family, Louisiana is equally bound by the United States Constitution and, accordingly, its law has much in common with the other states.

(c o nt i nu e d)

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336 Part ii Criminal Procedure

If the government fails in its burden, then a defendant is entitled to a directed verdict or a judgement of acquittal. The accusatorial nature of the system extends beyond placing the burden of proof on the government at trial. The entire process is designed to minimize the risk of convicting an innocent person. The philosophy that it is better to free several guilty persons than to convict one innocent person is a major theme of the U.S. criminal justice system. Accordingly, the system is designed so that the accused enjoys several advantages, the most critical one being the presumption of innocence; the freedom from self-incrimination, the right to a jury trial, and the right to counsel are others.

The fact that a defendant enjoys a few advantages does not mean that the defendant has the advantage on whole. The government, state or federal, can commit substantial resources to a prosecution.

tHe due ProCess model Criminal justice systems are commonly characterized as falling on a continuum that is bracketed by the crime control and the due process models. The repression, detection, and efficient prosecution of crime is central to the crime control model. Failure to de- tect and successfully prosecute criminals is perceived as a failure of government. This failure leads to a loss of individual liberties because citizens live in constant fear of, and are actually subject to, criminal conduct. A secondary consequence is a loss of confi- dence in government by the public, thereby further hindering its ability to detect and prevent crime. Prosecution in such systems tends to be bureaucratic, that is, a form of “assembly-line” justice. Some civil law and socialist law nations tend toward the crime control model.

The due process model places a premium on the integrity of individual rights and the fairness of process, as well as factual guilt. Efficiency (speed, cost, identifying an punishing offenders) is secondary. The balance is different in crime control systems. Factual guilt and efficiency are emphasized. Factual guilt refers to whether a defendant has in fact committed a crime. Legal guilt is concerned not only with factual guilt, but also with whether the defendant's rights have been observed and respected by the government in the processes of investigation and prosecution. It is possible, under the due process model, to have sufficient evidence to prove a defendant factually guilty; but because of a civil rights violation, the defendant must be declared legally not guilty. The due process model has little tolerance for conviction of the innocent; the crime control model equally abhors crimes going unsolved and defendants unpunished. Investigation and adjudication of defendants is less efficient and more costly under the due process model than under the crime control model.

This is a simplification of the two models.1 No system falls squarely into either of the two models, although most systems can be generally characterized as adhering to the principles of one more than the other. The United States follows the due pro- cess model. Individual rights and fair procedures are the hallmark of the U.S. system of criminal justice. All individuals are innocent until proven guilty. The process itself presumes innocence, and deprivations of liberties are sharply limited and regulated before guilt is found.

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Also, as the severity of the government's intrusions or deprivations increases, so must the evidence of guilt. For example, less evidence is required to establish probable cause to support a search of an automobile than to bind a defendant over to trial. This is because binding a defendant over to trial entails greater losses of liberty (possible pretrial detention and the cost and humiliation of being publicly tried) than does the search. You will learn many procedures that support the conclusion that the United States adheres to the due process model. Attempt to identify these characteristics as you read the following chapters. Chapters 11 through 16 examine the basic procedures and constitutional aspects of bringing criminals to justice. First, however, you must become familiar with the participants in this process.

tHe PartiCiPants Besides the accused and witnesses, there are six primary participants in criminal ad- judications: law enforcement officers, prosecutors, judges, defense attorneys, victims, and jurors. What follows is a discussion of all these participants except jurors. Jurors are discussed later.

Law Enforcement Officers The front line of law enforcement in the United States is what the public commonly refers to as the police. Law enforcement officers exist at the national, state, and local levels.

Exhibit 10–1 CRIme CoNTRol aNd dUe pRoCeSS modelS CompaRed

model/Point on Continuum

Crime Control due Process

Philosophy Discovering, apprehending, and punishing offenders, and deterring crime, is a priority. Civil liberties are protected, but not to the extent they jeopardize social control.

Discovering, apprehending, and punishing offenders is balanced against civil liberties. In some instances, civil liberties will prevail and crimes will go unpunished.

Process Mechanistic; efficiency is a high priority. The criminal justice system is a machine through which the government processes its cases.

Cumbersome; efficiency is not a high priority. The criminal justice system is not so much a machine but a maze through which the government must navigate to secure a conviction.

Conviction Standard

Actual guilt of accused is required for conviction. Government's burdens of proof and production are less than in systems emphasizing due process.

Legal and factual guilt are required for conviction. Government has high burdens of production and proof.

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338 Part ii Criminal Procedure

Federal law enforcement agencies include the Federal Bureau of Investigation, the Drug Enforcement Administration, Customs, the Coast Guard, U.S. Marshals, the Secret Service, and the Bureau of Alcohol, Tobacco, and Firearms, to name only a few.

Each state has a police department, and many have a counterpart to the FBI, such as the Kansas Bureau of Investigation (KBI). In addition, within each state, county sheriffs and municipal police departments enforce the laws of the state as well as the laws of their locality. There are more than 20,000 local law enforcement agencies in the United States. This includes 12,502 local police departments; 3,086 sheriffs’ of- fices; 49 state police departments; and more than 700,000 sworn police officers and 300,000-plus civilian personnel. In addition, there were 105,000 federal officers who carry weapons and are authorized to make arrests in the 50 states and District of Columbia in 2004. Three-fourths of these officers work in the Department of Homeland Security. An additional 1,500 officers work in U.S. territories. Additional officers are stationed in foreign nations.2

Discretion Law enforcement personnel are expected to keep the peace, investigate possible wrong- doing, enforce the laws, and further crime prevention. Although it is generally held that the police must enforce the laws, it is also recognized that not all the laws can be or should be enforced. Consequently, officers exercise much discretion when performing their daily duties. Deciding whether to conduct an investigation, whether to arrest an offender, or whether a search is necessary all usually fall within the individual officer’s discretion. However, the conduct of police officers must comply with constitutional, statutory, and departmental policy standards.

Ethics As is true of prosecutors and defense attorneys, the police officer's paramount ethical code is the Constitution. Police officers have a legal and ethical obligation to keep themselves within constitutional limits when performing their duties.

More specifically, the International Association of Chiefs of Police (IACP) has for- mulated a set of ethical principles intended to guide the law enforcement officer in the performance of his or her duties. The IACP has issued two ethics documents, the “Law Enforcement Code of Ethics” and the “Police Code of Conduct.” The Code of Ethics is a general statement of ethical responsibility that may be used as an oath of office.

The Code of Ethics recognizes that police officers hold a special public trust and that they have an obligation not to violate that trust.

Although substantially the same, the Police Code of Conduct is more specific than the Code of Ethics. The Code of Conduct prohibits discriminatory treatment of in- dividuals based upon status, sex, religion, political belief, or aspiration; the unneces- sary use of force; the infliction of cruel, degrading, or inhuman treatment; violation of confidences, except when necessary in the performance of duties or as required by law; bribery; the acceptance of gifts; refusals to cooperate with other law enforcement officials; and other unreasonable and inappropriate behavior. The Code of Conduct further qualifies the necessary force requirement by stating that force should be used

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“only with the greatest restraint and only after discussion, negotiation and persuasion have been found to be inappropriate or ineffective.”

Officers are expected to behave in a manner that inspires confidence and respect for law enforcement officials. Further, police officers are to attempt to obtain maximum public cooperation and to enforce all laws with courtesy, consideration, and dignity. Although the IACP has no enforcement authority, the codes do provide an excellent standard for adoption by law enforcement agencies, as well as by individual officers.

For the remainder of this book, references to police or law enforcement officers are to any one of the previously mentioned agencies.

Prosecutors Prosecutors are also central to the administration of justice. Prosecutors are government attorneys responsible for prosecuting violators. This role includes preparing and filing documents; engaging in pretrial activity, such as discovery; and appearing in court. Prosecutors often also act as legal counsel to law enforcement officers, rendering advice on the law of searches, seizures, arrests, surveillance techniques, and similar matters. Prosecutors appear at grand jury hearings, where they present evidence and assist the jury in other ways. Finally, in some jurisdictions, prosecutors act in a supervisory capac- ity as the head of a law enforcement agency, such as the Attorney General of the United States, who is the head of the Department of Justice.

At the federal level, the highest law enforcement official and prosecutor is the at- torney general, who undergoes the presidential nomination and senatorial confirmation process. The attorney general is a cabinet member who heads the Department of Justice.

Within each judicial district is one U.S. attorney, a subordinate of the attorney general, who also is selected through the nomination and confirmation process. U.S. attorneys, with the aid of several assistant U.S. attorneys (AUSAs), are responsible for most federal prosecutions. In rare cases, however, another attorney from the Depart- ment of Justice may travel to a district to handle a case. Federal law also provides for the appointment of an independent counsel (special prosecutor) when government officials are suspected of violating the law.

Similar to the federal government, each state has an attorney general. The states vary in the structure of their prosecutorial agencies, but most have locally elected pros- ecutors, who may be titled prosecutor, district attorney, or state attorney. The degree to which these individuals answer to the state attorney general differs greatly. Additionally, local forms of government have attorneys. In some localities, these attorneys prosecute ordinance violations.

Prosecutorial Discretion Prosecutors enjoy considerable discretion in the performance of their duties. The deci- sion whether to prosecute an individual is one aspect of prosecutorial discretion. This decision must be made by a prosecutor in most cases. In a small number of cases, how- ever, the prosecutor may not be in a position to make this decision, such as when a traffic ticket acts as the charging instrument and the case proceeds directly to court

discretion

■ The power to act within

general guidelines, rules,

or laws, but without either

specific rules to follow or

the need to completely

explain or justify each

decision or action.

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340 Part ii Criminal Procedure

without the prosecutor's involvement. However, most cases are initiated directly by a prosecutor, grand jury, or, as is usually the case, the police (through the arrest and complaint procedure). A case may not proceed under a complaint; rather, the prosecutor must file an information (or an indictment issued by a grand jury), which replaces the complaint. If a prosecutor refuses, or files a nolle prosequi, the case proceeds no further.

There are two general reasons that discretion must be exercised. First, the prosecutor's ethical obligation requires that he or she seek justice, not convictions. Prosecutors are not to maintain a prosecution simply because there is a probability of prevailing. Rather, the total- ity of the facts must be examined, and it must be determined that a prosecution will further justice. The justice obligation continues through the entire adjudicative process.

Economics is the second reason prosecutors cannot pursue every case. The re- sources of the prosecutor and law enforcement agencies are limited. Not every case can be prosecuted, because there are inadequate investigators, police officers, prosecutors, and other resources. Prosecutors must prioritize cases for prosecution. The decision whether to prosecute is influenced by many factors. The facts of the case; the accused's criminal, social, and economic history; the likelihood of success; the cost of prosecu- tion, including the probable time investment; public opinion; the seriousness of the crime; the desires of the victims; police expectations and desires; political concerns; and whether the prosecution will further the administration of justice are all considered.

Although prosecutorial discretion is broad, it is not absolute. First, the authority to file a nolle prosequi, or dismissal, may be limited. The further along a case is in the process, the more involved the court becomes in the decision. Generally, the decision not to prosecute before the formal charge (information or indictment) is filed is left to the prosecutor without judicial intervention. However, a small number of states require judicial approval of nolle prosequi decisions.

Once the formal charge has been filed, judicial approval of dismissal is the rule rather than the exception. This is true in the federal system, which also requires leave of court to dismiss complaints.3

Second, decisions to prosecute that are motivated by improper criteria may violate equal protection. The Fourteenth Amendment prohibits each state from taking actions that “deny to any person within its jurisdiction the equal protection of the laws.” Al- though the Fifth Amendment does not contain this language, the Supreme Court has interpreted the Fifth Amendment's Due Process Clause as requiring equal protection of the laws. A claim that it is unfair to prosecute a person because other known violators are not prosecuted will not be successful, unless it can be shown that the accused has been singled out for an improper reason.

Generally, three elements must be shown to establish improper, discriminatory prosecution: first, that other people similarly situated were not prosecuted; second, that the prosecutor intentionally singled out the defendant; third, that the selection was based upon an arbitrary classification. As the Supreme Court stated in Oyler v. Boles,4 for there to be an equal protection violation, it must be shown that “the selection was deliberately based upon an unjustified standard.” What is an unjustified standard? Pros- ecutions based upon race, religion, and gender are examples. A prosecution intended to punish an individual for exercising a constitutional right is also improper. The Supreme Court discusses selective prosecution in United States v. Armstrong (1996).

nolle prosequi

■ (Latin) The ending of

a criminal case because

the prosecutor decides or

agrees to stop prosecuting.

When this happens, the

case is “nolled,” “nollied,”

or “nol. prossed.”

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OPINION

Chief Justice rehnquist delivered the opinion of the Court.

In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for pros- ecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.

In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of co- caine base (crack) and conspiring to distribute the same, in violation of 21 U.S.C. §§ 841 and 846 (1988 ed. and Supp. IV), and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of alcohol, Tobacco, and Fire- arms and the Narcotics division of the Inglewood, California, Police Department had infiltrated a sus- pected crack distribution ring by using three con- fidential informants. On seven separate occasions during this period, the informants had bought a to- tal of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales. The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and found more crack and a loaded gun. The agents later ar- rested the other respondents as part of the ring.

In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In sup- port of their motion, they offered only an affidavit by a “Paralegal Specialist,” employed by the Office of the Federal Public Defender representing one of

the respondents. The only allegation in the affidavit was that, in every one of the 24 § 841 or § 846 cases closed by the office during 1991, the defendant was black. accompanying the affidavit was a “study” listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.

The Government opposed the discovery mo- tion, arguing, among other things, that there was no evidence or allegation “that the Government has acted unfairly or has prosecuted nonblack de- fendants or failed to prosecute them.” The District Court granted the motion. It ordered the Govern- ment (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses.

The Government moved for reconsideration of the District Court's discovery order. With this motion it submitted affidavits and other evidence to explain why it had chosen to prosecute respon- dents and why respondents’ study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investiga- tion. an assistant United States attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecution, because

“there was over 100 grams of cocaine base involved,

over twice the threshold necessary for a ten year

mandatory minimum sentence; there were multiple

sales involving multiple defendants, thereby indicat-

ing a fairly substantial crack cocaine ring; . . . there

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342 Part ii Criminal Procedure

were multiple federal firearms violations intertwined

with the narcotics trafficking; the overall evidence in

the case was extremely strong, including audio and

videotapes of defendants; . . . and several of the de-

fendants had criminal histories including narcotics

and firearms violations.”

The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that “large-scale, interstate trafficking networks controlled by Jamaicans, Hai- tians and Black street gangs dominate the manufac- ture and distribution of crack.”

In response, one of respondents’ attorneys submitted an affidavit alleging that an intake co- ordinator at a drug treatment center had told her that there are “an equal number of caucasian us- ers and dealers to minority users and dealers.” Respondents also submitted an affidavit from a criminal defense attorney alleging that in his ex- perience many nonblacks are prosecuted in state court for crack offenses, and a newspaper article reporting that federal “crack criminals . . . are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black.”

The District Court denied the motion for re- consideration. When the Government indicated it would not comply with the court's discovery order, the court dismissed the case.

A divided three-judge panel of the Court of Ap- peals for the Ninth Circuit reversed, . . . a selective- prosecution claim is not a defense on the merits to the criminal charge itself, but an independent as- sertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demand- ing one. These cases afford a “background pre- sumption,” that the showing necessary to obtain

discovery should itself be a significant barrier to the litigation of insubstantial claims.

a selective-prosecution claim asks a court to exercise judicial power over a “special province” of the executive. The attorney General and United States Attorneys retain “broad discretion” to en- force the Nation's criminal laws. They have this lati- tude because they are designated by statute as the President's delegates to help him discharge his con- stitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., art. II, § 3; see 28 U.S.C. §§ 516, 547. as a result, “the presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the con- trary, courts presume that they have properly dis- charged their official duties.” In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”

Of course, a prosecutor's discretion is “subject to constitutional constraints.” One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons . . . with a mind so unequal and op- pressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law.

In order to dispel the presumption that a pros- ecutor has not violated equal protection, a crimi- nal defendant must present “clear evidence to the contrary.” We explained in Wayte why courts are “properly hesitant to examine the decision whether to prosecute.” Judicial deference to the de- cisions of these executive officers rests in part on

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Chapter 10: Introduction and Participants 343

an assessment of the relative competence of pros- ecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily suscep- tible to the kind of analysis the courts are compe- tent to undertake.” It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “examining the basis of a prosecution delays the criminal proceed- ing, threatens to chill law enforcement by subject- ing the prosecutor's motives and decision making to outside inquiry, and may undermine prosecuto- rial effectiveness by revealing the Government's enforcement policy.” The requirements for a se- lective-prosecution claim draw on “ordinary equal protection standards.” The claimant must demon- strate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” To establish a discrimina- tory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been es- tablished in our case law since Ah Sin v. Wittman, 198 U.S. 500, 49 l. ed. 1142, 25 S. Ct. 756 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking dis- charge from imprisonment under a San Francisco County ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop po- lice from entering. He alleged in his habeas petition “that the ordinance is enforced 'solely and exclu- sively against persons of the Chinese race and not otherwise.’” We rejected his contention that this averment made out a claim under the Equal Pro- tection Clause, because it did not allege “that the conditions and practices to which the ordinance was directed did not exist exclusively among the

Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced.”

The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. The plaintiff in error successfully dem- onstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applica- tions of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the ap- plications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings “under similar conditions.” We explained in Ah Sin why the similarly situated requirement is necessary:

“No latitude of intention should be indulged in a case

like this. There should be certainty to every intent.

plaintiff in error seeks to set aside a criminal law of the

State, not on the ground that it is unconstitutional on

its face, not that it is discriminatory in tendency and

ultimate actual operation as the ordinance was which

was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a

matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice

of a State.” 198 U.S. at 508 (emphasis added).

Although Ah Sin involved federal review of a state conviction, we think a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the execu- tive Branch of the Federal Government, the power to prosecute. . . .

Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing

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344 Part ii Criminal Procedure

necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discov- ery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors’ resources and may disclose the Government's pros- ecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous stan- dard for discovery in aid of such a claim.

The parties, and the Courts of Appeals which have considered the requisite showing to estab- lish entitlement to discovery, describe this show- ing with a variety of phrases, like “colorable basis,” “substantial threshold showing,” “substantial and concrete basis,” or “reasonable likelihood,” Brief for Respondents martin et al. 30. However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals “require some evidence tending to show the existence of the essential elements of the defense,” discriminatory effect and discriminatory intent.

In this case we consider what evidence consti- tutes “some evidence tending to show the existence” of the discriminatory effect element. The Court of Ap- peals held that a defendant may establish a color- able basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law. As the three-judge panel explained, “‘selective prosecution’ implies that a se- lection has taken place.”

The Court of Appeals reached its decision in part because it started “with the presumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those sta- tistics show: More than 90 percent of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 an- nual Report 107 (Table 45); 93.4 percent of convicted LSD dealers were white, and 91 percent of those con- victed for pornography or prostitution were white. Presumptions at war with presumably reliable statis- tics have no proper place in the analysis of this issue.

The Court of appeals also expressed concern about the “evidentiary obstacles defendants face.” But all of its sister Circuits that have confronted the issue have required that defendants produce some evidence of differential treatment of simi- larly situated members of other races or protected classes. In the present case, if the claim of selec- tive prosecution were well founded, it should not have been an insuperable task to prove that per- sons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated per- sons of other races were prosecuted by the State of California and were known to federal law enforce- ment officers, but were not prosecuted in federal court. We think the required threshold—a credible showing of different treatment of similarly situated persons—adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution.

In the case before us, respondents’ “study” did not constitute “some evidence tending to show the existence of the essential elements of” a selective- prosecution claim. The study failed to identify

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To determine whether a classification is proper, equal protection analysis must be employed. Most decisions are tested under the rational relationship test. That is, if the decision to prosecute is rationally related to a legitimate governmental objective, it is valid. If a decision is based upon race or religion, or in retaliation for a person's exercise of a right, the decision is tested under the strict scrutiny test and is invalid unless it can be shown to further a compelling governmental interest. Finally, a few classifications, such as those based upon gender, are tested under a standard less demanding than strict scrutiny but more demanding than the rational relationship test. Such laws must bear a substantial relationship to a legitimate governmental interest. In reality, claims of selec- tive enforcement are rarely successful.

Ethics All attorneys are bound by ethical rules. Two sets of rules are used in the United States: the Model Code of Professional Responsibility and the Model Rules of Professional Conduct. The two are similar, and every state has adopted some form of these rules. Ethical violations may result in discipline by the bar, an offended court, or both. Com- mon sanctions include private and public reprimands, suspension, and disbarment. Under court rules and rules of procedure, other sanctions, such as monetary penalties, may be assessed. Also, all courts possess the authority to punish for contempt.

Prosecutors have special ethical responsibilities. You have already learned that the mission of the prosecutor is to achieve justice. The Model Code of Professional Re- sponsibility states that the “responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.”5

Prosecutors have an ethical obligation to be sure that a prosecution is warranted and to seek dismissal immediately upon discovering that one is not. Prosecutors are not to trump up charges to increase their power during plea negotiations. Prosecu- tors are only to request a fair sentence from a court. Of course, prosecutors may not use perjured or falsified evidence to obtain a conviction. In addition, you will learn later in this text that prosecutors have a constitutional duty to disclose exculpatory

individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omis- sion was not remedied by respondents’ evidence in opposition to the Government's motion for recon- sideration. The newspaper article, which discussed the discriminatory effect of federal drug sentenc- ing laws, was not relevant to an allegation of dis- crimination in decisions to prosecute. Respondents’

affidavits, which recounted one attorney's conver- sation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

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346 Part ii Criminal Procedure

evidence.6 Evidence that mitigates the degree of an offense or reduces a sentence must also be disclosed.7 Further, prosecutors are not to avoid pursuing evidence because it may damage the government's case or assist the defendant.8 Through discovery rules, prosecutors have a duty to disclose other evidence prior to or during trial. In short, prosecutors have an obligation to deal with defendants fairly.

On the other side, prosecutors have an obligation to pursue a prosecution when the facts of the case demand it. At trial, unless a prosecutor becomes convinced that the accused is innocent, the prosecutor is to zealously pursue a conviction.

Judges Judges are not executive branch officials, as are prosecutors and law enforcement offi- cers. Judges are part of the judiciary, a separate and independent branch of government. Generally, the judiciary is responsible for the resolution of disputes and the administra- tion of justice. In regard to criminal law, judges are responsible for issuing warrants, su- pervising pretrial activity, presiding over hearings and trial, deciding guilt or innocence in some cases, and passing sentence on those convicted.

Having a fair and impartial party make these determinations is an important fea- ture of the U.S. criminal justice system, and is mandated by the Constitution in many instances, as you will learn in the following chapters. A judge has the obligation to remain unbiased, fair, and impartial in all cases before the bar.

Ethics Like attorneys, judges are subject to a code of ethics. Most states have enacted the Code of Judicial Conduct. Judges are to be fair and impartial.9 In criminal cases, judges must be sensitive to defendants’ rights and be careful not to imply to a jury that a defendant is guilty.

Defense Attorneys Because of the complexity of the legal system and the advantage of having an advocate, competent legal counsel has become an important feature of the American system of criminal justice. The Sixth Amendment to the Constitution provides that all persons have a right to be represented by counsel in criminal cases. Today, indigent defendants have a right to counsel in all cases that may result in incarceration. Counsel for indigent defendants may be appointed from the private bar or, as is the case in most jurisdic- tions, a public defender will be assigned. Public defenders are provided to defendants at no cost. Regarding professional responsibility, defense counsel—whether a paid pri- vate defender or a public defender—owes his or her client the same loyalty and zeal in representation.

Ethics Defense attorneys have high, and sometimes morally challenging, ethical responsibili- ties. Unlike the prosecutor, whose duty is to see that justice is achieved, the defense at- torney must zealously represent the accused, within the bounds of the law,10 regardless of innocence or guilt.

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This obligation is the cause of some public disrespect for the legal profession. Attorneys are perceived as hired guns, not as advocates of civil liberties. Defense law- yers are frequently asked how they can defend people they know are guilty. There are two responses to this inquiry. First, defense attorneys often do not know whether their clients are in fact guilty, as this question is rarely asked. Second, defense attorneys are not defending the actions that the defendant is accused of committing; rather, defense attorneys are defending the rights of the accused, specifically, the right to have the gov- ernment prove its case beyond a reasonable doubt using lawfully obtained evidence. In defending the rights of one person against governmental oppression, the rights of all the people are defended.

This approach, which is a vital part of the U.S. criminal justice system, is often misunderstood by the public. The defense attorney who fulfills this constitutional and ethical mission is often the source of public animosity and ridicule.

Communications between attorneys and clients are confidential and privileged. Attorneys are generally prohibited from disclosing those communications.11 In the Belge case, an attorney was indicted for not revealing a client's privileged communica- tion and was the subject of considerable public disdain. The indictment was dismissed in the interests of justice, namely, preservation of the attorney-client privilege. How- ever, the court could do nothing to restore the attorney's good reputation and standing in his community.

Belge turned on the fact that the crimes had already occurred and the defendant posed no threat. An attorney is allowed, but not required, to report a client's intention to commit a crime.12 Therefore, if a client informs his counsel that he intends to kill a witness if he is released on bond, the attorney may disclose this information without breaching any ethical obligations.

In the summer of 1973 Robert F. Garrow, Jr. stood charged in Hamilton County with the crime of mur- der. The defendant was assigned two attorneys, Frank H. armani and Francis R. Belge. a defense of insanity had been interposed by counsel for Mr. Gar- row. During the course of the discussions between Garrow and his two counsel, three other murders were admitted by Garrow, one being in Onondaga County. on or about September of 1973 mr. Belge conducted his own investigation based upon what

his client had told him and with the assistance of a friend the location of the body of alicia Hauck was found in oakwood Cemetery in Syracuse. mr. Belge personally inspected the body and was satisfied, presumably, that this was alicia Hauck that his cli- ent had told him he murdered.

This discovery was not disclosed to the authori- ties, but became public during the trial of Mr. Gar- row in June of 1974, when, to affirmatively establish the defense of insanity, these three other murders

PEOPLE V. BELGE 372 N.Y.S.2d 798 (1975)

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348 Part ii Criminal Procedure

were brought before the jury by the defense in the Hamilton County trial. Public indignation reached the fever pitch; statements were made by the Dis- trict Attorney of Onondaga County relative to the situation and he caused the Grand Jury of onon- daga County, then sitting, to conduct a thorough investigation. as a result of this investigation Frank armani was No Billed by the Grand Jury, but [an i]ndictment . . . was returned against Francis R. Belge, esq., accusing him of having violated [the public health law], which, in essence, requires that a decent burial be accorded the dead, and . . . re- quires anyone knowing of the death of a person without medical attendance, to report the same to the proper authorities. Defense counsel moved for dismissal of the Indictment on the grounds that a confidential, privileged communication existed be- tween him and mr. Garrow, which should excuse the attorney from making full disclosure to the authorities. The National association of Criminal Defense Lawyers, as Amicus Curiae . . . succinctly stated the issue in the following language:

“If this indictment stands, the attorney-client privi-

lege will be effectively destroyed. No defendant will

be able to freely discuss the facts of his case with his

attorney. No attorney will be able to listen to those

facts without being faced with the Hobson's choice

of violating the law or violating his professional code

of Ethics.”

Initially in England the practice of law was not recognized as a profession and certainly some people are skeptics today. However, the practice of learned and capable men appearing before the Court on behalf of a friend or an acquaintance be- came more and more demanding. Consequently, the King granted a privilege to certain of these men to engage in such practice. There had to be rules governing their duties. These came to be known as “Canons.” The King has, in this country, been

substituted by a democracy, but the “Canons” are with us today, having been honed and refined over the years to meet the changes of time. Most are constantly being studied and revamped by the american Bar association and by the bar associations of the various states. While they are, for the most part, general by definition, they can be brought to bear in a particular situation. among those is the [rule that] confidential communications between an attorney and his client are privileged from disclosure . . . as a rule of necessity in the administration of justice. . . .

The effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship. If the lawyer cannot get all the facts about the case, he can only give his client half of a defense. . . .

When the facts of the other homicides became public, as a result of the defendant's testimony to substantiate his claim of insanity, “Members of the public were shocked at the apparent callousness of these lawyers with the public interest and with simple decency.” A hue and cry went up from the press and other news media suggesting that the at- torneys should be found guilty of such crimes as obstruction of justice or becoming an accomplice after the fact. From a layman's standpoint, this cer- tainly was a logical conclusion. However, the con- stitution of the United States of America attempts to preserve the dignity of the individual and to do that guarantees him the services of an attorney who will bring to the bar and to the bench every conceiv- able protection from the inroads of the state against such rights as are vested in the constitution for one accused of a crime. Among those substantial con- stitutional rights is that a defendant does not have to incriminate himself. His attorneys were bound to uphold that concept and maintain what has been called a sacred trust of confidentiality.

The following language of the brief of the Am- icus Curiae further points up the statements just made: “The client's Fifth Amendment rights cannot

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Chapter 10: Introduction and Participants 349

Attorneys are generally obligated to represent criminal defendants when appointed by a court or upon request by a bar association. However, an attorney may be excused for compelling reasons. In no event is belief in a defendant's guilt or disgust with the alleged acts compelling.14

An interesting ethical dilemma is presented when a defense attorney knows (or has a strong belief ) that either the client or one of the defense witnesses has given or intends to give false testimony. On the one hand, the attorney is an officer of the court and thus prohibited from defrauding the court. On the other hand, the defense attorney has an obligation to the client. There is a split in the jurisdictions concerning how this situation is to be handled. There are three possibilities. First, the most preferable, the defense attorney dissuades the client from committing perjury. Second, the attorney moves to withdraw from the case, keeping the reason secret. Third, the attorney dis- closes the client's intention to commit perjury to the court. The law in each jurisdiction must be examined to determine which of these options is permitted or preferred.

Defense attorneys are sometimes asked to represent co defendants. This can create a conflict of interest for a defense attorney if the defendants have conflicting or antagonistic defenses. Because of the inherent dangers of representing co defendants, many defense attorneys refuse joint representation. It is a violation of a defendant's Sixth Amendment right to the assistance of effective counsel to have a lawyer with divided loyalties.

Finally, trial counsel for criminal defendants have an obligation to continue on appeal unless new counsel is retained or the court has authorized withdrawal. This is different from civil cases, where there is no general obligation to continue after trial.

Legal assistants Legal assistants are employed by both prosecutors and defense attorneys, with the latter being more common.15 In the defense context, legal assistants may be asked to per- form several tasks, including conducting initial interviews, conducting legal research,

be violated by his attorney. . . . Because the dis- covery of the body of alicia Hauck would have pre- sented ‘a significant link in the chain of evidence tending to establish his guilt’ . . . Garrow was con- stitutionally exempt from any statutory requirement to disclose the location of the body. And Attorney Belge, as Garrow's attorney, was not only equally exempt, but under a positive stricture precluding such disclosure. Garrow, although constitutionally privileged against a requirement to compulsory disclosure, was free to make such a revelation if he

chose to do so. attorney Belge was affirmatively required to withhold disclosure. The criminal defen- dant's self-incrimination rights become completely nugatory if compulsory disclosure can be exacted through his attorney.” . . .

It is the decision of this Court that Francis R. Belge conducted himself as an officer of the Court with all the zeal at his command to protect the con- stitutional rights of his client. Both on the grounds of a privileged communication and the interests of justice the Indictment is dismissed.13

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preparing drafts of motions and other documents, maintaining and organizing files, acting as a contact with incarcerated clients, assisting in preparing the defendant and other witnesses for trial, and preparing the defendant for the presentence investigation interview. Some paralegals are called upon to conduct investigations.

As employees of attorneys, legal assistants must also follow ethical guidelines and responsibilities. Although no state has yet established mandatory certification of legal assistants, and therefore there is no enforceable set of ethics rules, the National Fed- eration of Paralegal Organizations and the National Association of Legal Assistants (NALA) have promulgated Codes of Ethics.

The NALA Code states that, first, legal assistants may not engage in the practice of law.16 This includes rendering legal advice, establishing an attorney-client relationship, setting fees, and appearing in court on behalf of a client. Although some administra- tive agencies permit legal assistants to represent clients at hearings, this is never so in criminal law. The unauthorized practice of law is both criminal and unethical. Further, legal assistants are to act prudently in determining the extent to which a client may be assisted without the presence of a lawyer.17 Finally, it is imperative that the attorney directly supervise the legal assistant's work in criminal law.18

Second, all employees of an attorney are bound by the confidentiality rule.19 All communications made by a client to a legal assistant fall within the scope of the attorney-client privilege and may not be disclosed by the legal assistant.

Third, legal assistants must be careful not to suborn perjury when preparing the client and witnesses for trial. Instructing a witness in effective techniques, including dress and personal appearance, and methods of responding to inquiries (e.g., answer directly, honestly, and as succinctly as possible; look at the jury during your response) is proper. Suggesting, urging, encouraging, or directing a witness to lie or mislead a court is suborning perjury.

Fourth, legal assistants are bound through their attorney-supervisors by the American Bar Association's Model Rules of Professional Conduct and Model Code of Professional Responsibility.20

Victims Recall that the legal victim of crimes is the government. That is why criminal prosecu- tions are brought in the name of the government. However, most crimes have another victim, the victim-in-fact. This is the person assaulted, battered, raped, or robbed. Vic- tims affect criminal adjudications in a number of ways.

First, law enforcement officers may decline to make an arrest or conduct an investi- gation if the victim is disinterested in having the matter pursued. Second, the prosecutor may file a nolle prosequi, if there has been an arrest, or otherwise refuse to proceed with a prosecution if that is the victim's desire. Third, if the matter proceeds to trial, the victim may be required to testify at both pretrial hearings and trial. A victim may choose to at- tend even if his or her testimony is not required. Fourth, the victim may participate in the sentencing portion of the trial. As you will learn, statements concerning how a victim and a victim's family have been affected may be considered by judge and jury when passing sentence. Restitution is also made a condition of some sentences.

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Victims’ rights have received considerable attention since the mid-1980s. Victims’ rights organizations have strenuously—and successfully—lobbied to introduce both state constitutional amendments and legislation concerning victims’ rights. For ex- ample, the Arizona Constitution was amended to include a “Victims’ Bill of Rights.” Through that amendment and its enabling legislation, crime victims are allowed to participate in the initial appearance, be heard on conditions of release, be present at all court proceedings, confer with the prosecutor concerning disposition of the case, refuse a defense interview or other discovery request, provide an impact statement for sentencing, receive restitution and other damages, receive notice of probation modi- fications of the perpetrator, and receive notice of parole or death of the perpetrator.21

Rape shield legislation is another form of victims’ rights laws. Rape shield laws exclude from trial evidence of a rape victim's sexual history (except evidence of sexual history with the accused) and reputation in the community. These laws were enacted to protect the rape victim from embarrassing, harassing, and intimidating inquiries.

In most jurisdictions, victims’ rights are a matter of statutory, not constitutional, law. Change came quickly in this area. In 1982, only 4 states had victims’ bills of rights. That number increased to 44 by 1987. In 1982, only 8 states allowed the use of victim impact statements at sentencing. By 2013, the number of states permitting victim impact evidence to be considered by sentencing judges and juries increased to 50 and 32 states now provide for victims rights in their constitutions.22

In addition to laws providing for victim participation in court proceedings, laws have been enacted for the protection of both victims and witnesses. These laws provide for the relocation of a witness or victim whose cooperation with an investigation or prosecution endangers his or her life. The federal law is well known. It provides for relocation of the victim or witness and his or her immediate family at taxpayer expense. Further, the United States provides the family with a new identity.23

Victims are likely to have civil remedies against perpetrators under traditional civil law theories. Intentional tort actions for assault, battery, invasion of privacy, and con- version are examples.

Finally, victim assistance organizations are available in many jurisdictions. Some are independent, not-for-profit corporations, and others are governmental entities. These organizations provide information, counseling, and other assistance to victims. Also, most states have enacted victim compensation programs. In many instances restitution proves inadequate, such as when the perpetrator is indigent. In these instances, a victim can request compensation from a state victim compensation fund. These programs reimburse victims for medical expenses and, sometimes, loss of income. Generally, they do not compensate victims for property losses.

liability of Governments and tHeir offiCials Government officials, including law enforcement officers, prosecutors, and judges, are not above the law. Violation of an individual's rights by an official, even if during the performance of official duties, may lead to civil and criminal liability.24 It is not in

victim impact statement

■ At the time of

sentencing, a statement

made to the court

concerning the effect the

crime has had on the victim

or on the victim's family.

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352 Part ii Criminal Procedure

society's best interest, however, to create an environment where officials are threatened with civil or criminal liability for every incorrect decision and action, especially when they act in good faith and after thoughtful consideration of alternatives and repercus- sions. In such a world, civil authorities would be afraid to act and government would be paralyzed. Therefore, the laws governing liability of government officials are designed to provide remedies only for acts that are outrageous, malicious, shocking, or in clear violation of established rights.

States have laws that may provide remedies to the victims of improper govern- mental conduct. A police officer who commits an unjustified assault, battery, or false imprisonment may be liable under traditional tort and criminal law theories. These and other actions may lead to civil and criminal liability under state civil rights laws. In ad- dition, violations of federally secured rights by state or federal officers can result in both civil and criminal prosecutions under federal civil rights statutes.25 It was under these laws that several Los Angeles police officers were prosecuted for violating the civil rights of Rodney King in 1993. Similarly, a prosecutor who violates a person's civil rights may be liable under federal law,26 or a similar state law, or under a state tort theory. In fewer instances, judges may also be liable for their actions.

The civil liability of officials is limited by immunity doctrines. Immunities de- veloped at common law, and the United States Supreme Court, has determined that Congress did not intend to abolish these immunities when it enacted the civil rights acts.27 Therefore, governmental officials may assert immunity as a defense if sued under the federal civil rights statutes.

There is a judicial immunity. Any action that is judicial in nature is shielded by absolute immunity. Because it is absolute, a government official is free from both suit and liability when performing judicial functions. Issuing orders (including warrants) and presiding over hearings are examples of judicial acts.

Most judicial acts are performed by judges, but not all. Prosecutors perform quasi- judicial acts and are shielded with absolute immunity for the performance of these acts. Appearing in court (including ex parte warrant application hearings) and complying with court orders are considered quasi-judicial acts. The Supreme Court has held, in Van de Kamp v. Goldstein, 555 U.S.—(2009) that this immunity extends to the super- visory and training functions of prosecutors when the functions in question are inti- mately associated with the judicial phase of a case. So, failure to supervise or properly train junior prosecutors in trial rules is immunized conduct. Other, more administra- tive conduct, such as recruitment, hiring, and awarding contracts is not shielded. Simi- lar to prosecutors, police officers are shielded with absolute immunity when enforcing court orders (including warrants) and when testifying in court but not when perform- ing non judicial tasks.

In other situations, another form of immunity may apply. A person entitled to qualified immunity is free from liability but not necessarily free from suit. That means that the process of establishing nonliability may involve a greater commitment of time, energy, and money by a defendant. Under absolute immunity, issues of malice, intent, or the nature of the right alleged to be violated are immaterial, because the defendant is immune regardless. In contrast, whether an official acted with malice or whether the

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attOrNEY COMPENSatION

Generally, attorneys get paid in one of several different ways. salary, hourly, fixed, contingency, and court ordered are the most common methods. The first, salary, is common in corporations, not-for-profit, public service, and government settings. The attorney is hired, full- or part-time, and is paid salary and benefits regardless of time invested or success. The second, hourly, is common in simple transaction cases, such as nego- tiating a contract or drafting a legal document. it is also common when attorneys provide single-visit or transaction legal advice. attorneys bill hours differently. some record every minute of time spent on a case. This

Ethical Considerations

alleged right violated was clearly established at law are material in the qualified immu- nity case. Under some laws, an official is liable only if malice is shown, or, as required by federal law, a plaintiff can prove that a clearly established right was violated.

So, under federal law, although prosecutors are absolutely immune from civil li- ability for quasi-judicial acts, such as appearing in court and filing charges, they enjoy only a qualified immunity when performing other acts, such as rendering legal advice to law enforcement officers.28 Similarly, judges are protected by qualified immunity when performing nonjudicial but work-related functions, such as making personnel decisions.29 Police officers are shielded by qualified immunity when conducting inves- tigations, making warrantless searches or seizures, and engaging in administrative and personnel matters.

Finally, the government itself may be sued in some circumstances. A serious obstacle, which must be overcome to establish governmental liability, is sovereign immunity. The doctrine of sovereign immunity holds that the government is immune from lawsuits. Therefore, governments must consent to be sued. This is true of both state and federal governments. Most states have abolished sovereign immunity to some degree, some by statute, and a few by judicial decision.

The federal government has consented to be sued under several laws. Through the Federal Tort Claims Act (FTCA),30 the United States has waived immunity from suit for a number of torts. In 1974, the statute was amended to permit suits based upon assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecu- tion committed by federal law enforcement officers.

States may not be sued directly under federal civil rights statutes, nor may the fed- eral government. However, local forms of government may be sued under federal civil rights laws if the acts alleged to have violated the plaintiff 's civil rights were committed pursuant to an ordinance, regulation, policy, or decision of the locality.31

sovereign immunity

■ The government's

freedom from being sued.

In many cases, the U.S.

government has waived

immunity by a statute such

as the Federal Tort Claims

Act; states have similar

laws.

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