Criminal Procedure: Pre-Trial: Assignment

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Chapter Outline Studying Crimes Homicide

Homicide and the Common Law Statutory Approaches to Homicide Manslaughter The Model Penal Code Approach to

Homicide Life, Death, and Homicide Suicide Corpus Delicti

Assault and Battery Aggravated Assault and Battery

Mayhem Sex Crimes

Rape Nonforcible Rape Sodomy Rape Shield Laws Incest Sex Offenses Against Children Megan’s Laws, Commitment, and

Castration Kidnapping and False Imprisonment

Kidnapping Parental Kidnapping False Imprisonment

Stalking Cyberstalking

Civil Rights and Hate Crimes Ethical Considerations: Can an Outspoken

Racist Join the Bar?

Chapter Objectives

After completing this chapter you should be able to:

• list, explain, and compare the elements of common law and contemporary crimes against the person, such as murder, rape, and assault.

• list, explain, and compare the common defenses to charges of crimes against the person, such as self-defense.

• identify and analyze contemporary legal issues concerning death and suicide.

• identify the material facts and legal issues in 1/3 of the cases you read.

CHAPTER 4

CRimEs AgAinsT THE PERson

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Chapter 4: Crimes Against the Person 97

Studying CrimeS In the next three chapters you will learn about many crimes. It would be impossible to include a discussion of all crimes. The federal government and each city and state have their own unique laws. What follows is a discussion of the major crimes recognized, in some form, in most jurisdictions. The crimes have been categorized as crimes against the person, crimes against property, and crimes against the public. Although it is common to make these distinctions, do not concern yourself with understanding why these clas- sifications have been made; they are used only for organizational purposes. In a sense, all crimes are offenses against the public in the United States. That is why the public prose- cutes crimes, and private individuals may not. Also, any offense “against property” is actu- ally injuring a person, not the property. A stolen iPod set does not long to be returned to its rightful owner. However, the rightful owner does feel wronged and desires the return of the stolen item. In a sense, the classifications are often accurate in that they describe the focus of the criminal conduct. The focus of a thief ’s act is property; hence, a crime against property. The focus of a rapist’s attack is a human; hence, a crime against a person.

All of the following crimes have been broken into parts. Each part of a crime is an element of that crime. At trial, every element of a crime must be proven beyond a reasonable doubt by the prosecution. If any element is not proven beyond a reasonable doubt, the accused must be found not guilty. The rule requires that each element be proved individually. That is, if a crime consists of six elements, and a jury is convinced that five have been proven, but cannot say that the sixth has been proven beyond a reasonable doubt, then there must be a not-guilty verdict. This is true even if the jury was solidly convinced that all the other elements were true and generally believed that the defendant committed the crime. Later you will learn more about the standard for determining guilt beyond a reasonable doubt.

Finally, you may notice that, often, if one crime has been proven, all the elements of a related lesser crime can also be proved. For example, if a defendant is convicted of murdering someone with a hammer, he has also committed a battery of the victim. In such circumstances, the lesser offense merges into the greater offense. This is the merger doctrine. Under this doctrine, both crimes may be charged; but if the defen- dant is convicted of the more serious crime, the lesser is absorbed by the greater, and the defendant is not punished for both. If acquitted of the greater charge, the defendant may be convicted of the lesser.

HomiCide Homicide is the killing of one human being by another. Not all homicides are crimes. It is possible to cause another person’s death accidentally, that is, accompanied by no mens rea. For example, if a bridge builder lost her balance and fell against a coworker, causing the coworker to fall to his death, no crime has been committed, but there has been a homicide.

Criminal homicide occurs when a person takes another’s life in a manner pro- scribed by law. The law proscribes more than intentional killings. Under the Model Penal Code, purposeful, knowing, negligent, and reckless homicides may be punished.

element

■ A basic part. For

example, some of the

elements of a cause of action for battery are an

intentional, unwanted

physical contact. Each of

these things (“intentional,”

“unwanted,” etc.) is one

“element.”

merger of offenses

■ When a person is

charged with two crimes

(based on exactly the same

acts), one of which is a

lesser included offense of

the other. The lesser crime

merges because, under the prohibition against double

jeopardy, the person may

be tried for only one crime.

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98 Part i Criminal Law

Crime StatiStiCS

There are many different ways to measure crime. Some methods, such as observation and experimentation, are impractical, or even more, immoral. The federal bureau of investigation collects crime data from police depart- ments all over the United States. These data are compiled and reported yearly under the title Uniform Crime Reports. Although a good comprehen- sive source of crime data since 1929, uCR data have some flaws. The most significant flaw concerns underreporting. Many crimes are not reported to the police. Even when a crime is reported, most police agencies report only the most serious offense committed. Hence, many crimes go unreported by individuals and police agencies. Also, because uCR data are aggregate data, no detail about the number of victims, offenders, or offenses per incident are provided. To remedy some of these problems, there is an on- going effort to redesign the ucr system. This effort, known as the National Incident-based Reporting System (NIbRS), asks local law enforcement of- ficers to move beyond aggregate data to providing information about each criminal incident.

Since 1991, colleges and universities that receive federal monies have been required to collect statistics on campus crime. The Campus Security Act requires that the collected data be made available to current and pro- spective faculty, staff, and students.

The second major system of crime data collection is the National Crime Victimization Survey, administered by the U.S. Census bureau on behalf of the U.S. Department of Justice. The NCVS is a large random survey of U.S. households. Respondents are asked whether they have been victimized by one or more of the listed violent and nonviolent crimes. The NCVS touts an impressive 95 percent response rate to its survey. The NCVS has its flaws as well. Some victims, particularly of certain crimes, are reluctant or ashamed to report the crime. Also, some people may not know that they have been victimized (e.g., embezzlement or fraud).

UCR data are often used in this text. For additional information, NCVS data should be examined. Also, most local and state law enforcement agen- cies and courts have data available that are not provided by either the uCR or NCVS, such as data on arrests and crimes not included in the UCR or NCVS systems.

Sources: The FBI’s UCR reports can be found in many locations, including http://www.fbi.gov/ucr/ucr.htm. NCVS data can be found in many locations, including http://www.ojp.usdoj.gov/bjs

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Chapter 4: Crimes Against the Person 99

The mens rea part of homicide is important. The determination of what mens rea was possessed by the defendant (actually, what mens rea can be proven by the prosecu- tion) will usually determine what crime may be punished. At common law, various forms of murder were developed. This is where we begin.

Homicide and the Common Law Initially, at common law, all murders were punished equally: the murderer was ex- ecuted.1 Over time, the value of proportional punishment developed and homicides were eventually divided into murder and manslaughter with differentiated punish- ment. Manslaughter was punished by incarceration, not death.

Murder, at common law, was defined as (1) the unlawful killing of a (2) human being with (3) malice aforethought. It was the requirement of malice aforethought that distinguished murder from manslaughter. Although malice aforethought was defined differently among the states, the following types of homicide became recognized as murder under the common law:

1. When the defendant intended to cause the death of the victim. 2. When the defendant intended to cause serious bodily harm, and death resulted.

Exhibit 4–1 CRIME CLOCK 2011

2011 CRIME CLOCK STATISTICS A Violent Crime occurred every 26.2 seconds

3.5 seconds

36.0 minutes

6.3 minutes

1.5 minutes

42.0 seconds

One Murder every

One Forcible Rape every

One Robbery every

One Aggravated Assault every

A Property Crime occurred every

14.4 seconds

5.1 seconds

44.1 seconds

One Burglary every

One Larceny-theft every

One Motor vehicle Theft every

Co py

rig ht

en ga

ge L

ea rn

in g®

Source: US FBI, Uniform Crime Reports (2012)

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100 Part i Criminal Law

3. When the defendant created an unreasonably high risk of death that caused the victim’s death, regardless of the defendant’s mens rea. This was known as “depraved-heart murder.”

4. When the doctrine of felony-murder was applicable.

All criminal homicides that did not constitute murder were treated as man- slaughter. Today, nearly every jurisdiction further divides murder into degrees, and most divide manslaughter into voluntary and involuntary. Few jurisdictions rely on the common-law definition of malice aforethought. However, many states continue to recognize felony-murder.

The Felony-Murder Doctrine Cole Allen Wilkins committed a burglary of a home that was under construction. He loaded several appliances stolen during the burglary into the bed of a pickup truck. Sixty-two miles away from the burglarized home, a stove that Wilkins’ had loaded into the truck fell onto the interstate. Wilkins left the stove on the road, and later a driver was killed when he swerved into the path of an oncoming vehicle in an attempt to avoid hitting the stove. Wilkins was charged and convicted of a crime that developed a long time ago, first-degree felony murder. You will learn more about his appeal in a moment, after you are introduced to this old crime.

At common law, one who caused an unintended death during the commission (or attempted commission) of any felony was guilty of murder. This became known as felony-murder. Under the early common law all felonies were punished by death. Generally, most of the crimes that were felonies under the common law posed a threat to human life. This threat was one justification for the harshness of the rule. However, as the common law developed, many new crimes were created, many of which did not involve serious threat to human life. For this reason the felony-murder doctrine was very harsh, as it applied to all felonies regardless of their relative dangerousness to human life. In time, courts began to limit the application of the rule to specified felonies—those perceived as posing the largest threat to human life. It was common to apply the rule to rape, mayhem, arson, kidnapping, and robbery.

For example, Grace and Eva decided to rob the First National Bank. They agreed to use whatever amount of violence is necessary to carry out the robbery. During the robbery a bank teller summoned the police by use of a silent alarm. As Grace and Eva were leaving the bank, the police shouted to them, ordering their surrender. Grace then fired a shot from her gun and fatally wounded a police officer. Using the felony-murder rule, both Grace and Eva are criminally liable for the death of the police officer, even though Eva did not fire the weapon or conspire with Grace to kill the officer.

The felony-murder rule acts to impute the required mens rea to the defendant and to create a form of vicarious liability between cofelons. The rule imputes mens rea because it applies in situations of unintended death; however, murder in the first degree is a specific-intent crime. The rationale is that one who engages in inherently dangerous crimes should be aware of the high risk to human life created by the crime. Vicarious liability is also imposed in some states; that is, all the individuals involved in the perpetration of the crime may be criminally liable for the resulting death.

felony-murder rule

■ The principle that if a

person (even accidentally)

kills another while

committing a felony, then

the killing is murder.

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Chapter 4: Crimes Against the Person 101

Today, most states have felony-murder statutes. Generally, the following require- ments must be proven to establish a felony-murder:

1. The defendant must have been engaged in the commission, or attempted commission, of a named felony, and

2. during the commission, or attempted commission, of that felony a death occurred, and

3. there is a causal connection between the crime and the death.

In most jurisdictions the legislature has specified the crimes that must be commit- ted, or attempted, for the rule to apply. A few jurisdictions have limited the application of the rule to crimes that were felonies at common law, and others have limited the rule to felonies that involve a threat to human life.

To satisfy the second requirement, it must be determined when the commission of the crime began and when it concluded. This appears to be an easy task, and it is in most cases, but in some instances it is not clear. Suppose that a robber knew that a large sum of money was being transferred between a bank and an armored car at a particular time and intended to steal the money during that transfer. Also assume that on the day of the robbery, the traffic was heavier than anticipated by the robber and, in an effort to arrive at the bank on time, the robber ran a stop sign. While passing through the intersection, the robber struck another vehicle, killing the driver. Was this death during the commis- sion, or attempted commission, of the robbery? What if a police officer were to chase an individual from the scene of a felony and get shot 15 minutes and one mile away from the scene of the crime? Is this during the commission, or attempted commission, of the felony? It is likely that no felony-murder would be found in the first example, because the death was too far removed from actual commission of the crime. The result would be different if the robber struck and killed the motorist while fleeing from the police immediately after commission of the holdup. This answers the second question. Courts have generally held that deaths that occur during the flight of a felon are “during the commission of the felony.” However, the chase must be immediate, and the rule does not apply if there is a gap between the time the crime occurred, or was attempted, and the time the chase begins. The third element can be troublesome. In many ways this require- ment is similar to the causation requirement discussed in Chapter 3 regarding actus reus. That is, the commission, or attempted commission, of the felony must be the legal cause (proximate cause) of the death. The death must be a “consequence, not coincidence” of the act; the resulting death must have been a foreseeable consequence of the act. So, if a patron of a store suffers a heart attack during a robbery, which was precipitated by the crime, the robbers are guilty of felony-murder if the patron dies. However, if a patron who is unaware of an ongoing robbery suffers a heart attack and dies, the robbers are not liable for the death. The mere fact that the death and the crime occurred simultaneously does not mean that the robbers were the legal cause of the death.

Returning to Defendant Wilkins and the stolen stove, he won reversal of his conviction in 2013 because the Supreme Court of California found the nexus between the death of the motorist and the burglary to be too distant in time and lacking in nexus.2

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102 Part i Criminal Law

In some states, the act that causes the death of the victim need not be taken by one of the perpetrators of the crime. For example, if Grace and Eva become involved in a shoot-out with the police after they rob the First National Bank, and the police acci- dentally shoot an innocent bystander, then Grace and Eva are guilty of felony-murder. This is because they began the series of events that led to the death of the bystander. However, if a police officer (or another) kills one of many felons who are jointly in- volved in the commission of the crime, it is generally held that the other felons are not guilty of felony-murder.3

Although the felony-murder rule does impose vicarious liability between cofelons, this aspect is limited. If a defendant can prove that he did not commit the act that caused the death; did not authorize, plan, or encourage the act of his cofelon; and had no reason to believe that his cohort would commit the act, he has a defense to felony-murder in some jurisdictions. Note that the rules concerning parties (principals and accomplices) to crimes may create liability independent of the felony-murder rule. (See Chapter 7 for a discussion of parties to crimes.)

Finally, note that in most jurisdictions that continue to recognize felony-murder, the murder is treated as first-degree murder for the purpose of sentencing. Other stat- utes provide that felony-murders that occur during named felonies are to be treated as first-degree murder and that murders during “all other felonies” are to be treated as second-degree murder. Even if the statute that creates this “all other felony” category does not expressly state that the felony must involve a danger to human life, it is com- mon for courts to impose the requirement.

In the Losey case, a defendant appealed his conviction of involuntary manslaughter and aggravated burglary. The Ohio Court of Appeals applied a statute that read, “No person shall cause the death of another as a proximate result of the offender’s com- mitting or attempting to commit a felony.” The statute named the crime involuntary manslaughter. The case is interesting from a causation perspective. Read the case and decide for yourself if the defendant should be punished for the death that occurred.

Defendant testified that he approached a house located at 616 Whitehorne Avenue shortly after 11:00 p.m. on November 25, 1983; that he knocked at the front door and, upon receiving no response, forced open the door and proceeded to attempt to remove a bicycle. His friend, who had been waiting outside, yelled that a car was slowly approaching. The defen- dant then placed the bicycle beside the front door

and departed, leaving the front door open behind him. James Harper, the owner of 616 Whitehorne Avenue, testified that he heard a noise at approxi- mately 1:00 a.m. Shortly thereafter, his mother, with whom he resided, appeared at his bedroom door inquiring about the noise. They proceeded together to the living room, whereupon they discovered the open front door and the bicycle standing near the

STATE V. LOSEY 23 Ohio App. 3d 93, 491 N.E.2d 379 (1985)

(continued)

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Chapter 4: Crimes Against the Person 103

Misdemeanor Manslaughter Similar to the felony-murder rule, one may be guilty of misdemeanor manslaughter if a death results from the commission of a misdemeanor, not a felony. Conviction of misdemeanor manslaughter results in liability for manslaughter, often involuntary manslaughter, and not murder.

Just as the felony-murder doctrine has been limited in recent years, so has the crime of misdemeanor manslaughter. This is due largely to the significant increase in the creation of nonviolent crimes by legislatures and administrative bodies. Many states require that the misdemeanor be malum in se, and crimes that are malum prohibitum cannot be a basis for misdemeanor manslaughter. Requiring that the misdemeanor have a mens rea element is another limitation; that is, strict liability crimes may not be the basis for misdemeanor manslaughter. There is a trend to reject the misdemeanor manslaughter rule (as there is with the felony-murder rule) and require that one of the four types of culpability recognized by the Model Penal Code (purposeful, knowing, negligent, or reckless) be present before imposing liability.

Statutory Approaches to Homicide Although the common law recognized only one form of murder, most states now divide murder into degrees; most often into first and second degrees. First-degree murder is the highest form of murder and is punished more severely than second- degree murder. Second-degree murder is a higher crime than manslaughter.

door. James Harper stated that he told his mother to go back to her bedroom while he went to check the rest of the house. After so checking, he returned to the living room and was calling the police when his mother appeared in the hallway looking very upset and then collapsed. He called an emergency squad, which attempted to revive Mrs. Harper for almost an hour when the squadmen pronounced her dead. Prior to the burglary, Mrs. Harper had re- turned from bingo at approximately 10:00 p.m. that evening and had gone to bed. based on these facts, the trial court found defendant guilty of aggravated burglary and involuntary manslaughter.

■ ■ ■

The doctor’s testimony established that defen- dant’s conduct was a cause of Mrs. Harper’s death in the sense that it set in motion events which

culminated in her death. However, it still must be de- termined whether defendant was legally responsible for her death—whether the death was the proximate result of his conduct. It is not necessary that the ac- cused be in a position to foresee the precise conse- quence of his conduct; only that the consequence be foreseeable in the sense that what actually trans- pired was natural and logical in that it was within the scope of the risk created by his conduct. . . .

by the same token, in this case, the causal re- lationship between defendant’s criminal conduct and Mrs. Harper’s death was not too improbable, remote, or speculative to form a basis for crimi- nal responsibility. Although the defendant did not engage in loud or violent conduct calculated to frighten or shock, his presence was nevertheless detected by Mrs. Harper. . . . [Conviction affirmed.]

STATE V. LOSEY (continued)

first-degree murder

■ The highest form of

homicide. The killing

of another person with

malice and premeditation,

cruelty, or done during the

commission of a major

felony is typically murder

in the first degree.

second-degree murder

■ Murder without

premeditation.

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104 Part i Criminal Law

First- and Second-Degree Murder For a murder to be of the first degree, the highest crime, it must be shown that the homicide was willful, deliberate, and premeditated. Generally, first-degree murder ap- plies whenever the murderer has as a goal the death of the victim. Willful, as used in first-degree murder, is a specific-intent concept. To be willful, the defendant must have specifically intended to cause the death.

Deliberate is usually defined as “a cool mind, not acting out of an immediate pas- sion, fear, or rage.” The term premeditated means “to think beforehand.” Similar to deliberate, it eliminates impulsive acts from the grasp of first-degree murder. It is com- monly said that there must be a gap in time between the decision to kill and the actual act. Of course, the length of the gap is the critical issue. Most courts hold that the gap in time must be “appreciable.” Again, this term does little to define the length of time. The fact is that courts differ greatly in how they define appreciable. There are many reported cases where a lapse of only seconds was sufficient.4 Some courts have held that all that need be shown is that the defendant had adequate time to form the intention before taking the act; the length of time is not determinative of the question.5

In State v. Snowden, the defendant appealed his conviction of first-degree murder, claiming that he lacked premeditation. As such, he should have been convicted of second-degree murder, not first-degree. Decisions such as this obscure the difference between first- and second-degree murder. Do you agree with the Idaho Court that there can be premeditation even if there is “no appreciable space of time between the intention to kill and the act of killing”? Note that the facts of this case did not require mention of the prior case where it was held that “no appreciable” time has to be shown. The fact that the autopsy evidenced that the murder occurred after the victim suffered torture would justify a murder conviction under the statute.

Defendant Snowden had been playing pool and drinking in a Boise pool room early in the eve- ning. With a companion, one Carrier, he visited a club near boise, then went to nearby Garden City. There the two men visited a number of bars, and defendant had several drinks. Their last stop was the HiHo Club.

Witnesses related that while defendant was in the HiHo Club he met and talked to Cora Lucyle Dean. The defendant himself said he hadn’t been ac- quainted with Mrs. Dean prior to that time, but he

had “seen her in a couple of the joints up town.” He danced with Mrs. Dean while at the HiHo Club. Upon departing from the tavern, the two left together.

In statements to police officers, that were admitted to evidence, defendant Snowden said af- ter they left the club Mrs. Dean wanted him to find a cab and take her back to boise, and he refused because he didn’t feel he should pay her fare. After some words, he related:

She got mad at me, so I got pretty hot and I don’t

know whether I back handed her there or not. And,

STATE V. SNOWDEN 79 Idaho 266, 313 P.2d 706 (1957)

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Chapter 4: Crimes Against the Person 105

we got calmed down and decided to walk across to

the gas station and call a cab.

They crossed the street, and began arguing again. Defendant said: “She swung and at the same time she kneed me again. I blew my top.”

Defendant said he pushed the woman over be- side a pickup truck which was standing near a busi- ness building. There he pulled his knife—a pocket knife with a two-inch blade—and cut her throat.

The body, which was found the next morning, was viciously and sadistically cut and mutilated. An autopsy surgeon testified the voice box had been cut, and that this would have prevented the victim from making any intelligible cry. There were other wounds inflicted while she was still alive—one in her neck, one in her abdomen, two in the face, and two on the back of the neck. The second neck wound severed the spinal cord and caused her death. There were other wounds all over the body, and her clothing had been cut away. The nipple of her right breast was missing. There was no evidence of sexual attack on the victim; however, some of the lacerations were around the breasts and vagina of the deceased. . . .

[M]urder is defined by statute as follows:

All murder which is perpetrated by means of poison,

or lying in wait, torture, or by any other kind of willful,

deliberate and premeditated killing, or which is com-

mitted in the perpetration of, or attempt to perpetrate

arson, rape, robbery, burglary, kidnapping, or may-

hem, is murder in the first degree. All other murders

are of the second degree.

The defendant admitted taking the life of the

deceased.

The principal argument of the defendant pertain- ing to [the charge of premeditated murder] is that the defendant did not have sufficient time to develop a desire to take the life of the deceased, but rather his action was instantaneous and a normal reaction to the physical injury which she dealt him. . . .

There need be no appreciable space of time between

the intention to kill and the act of killing. They may be

as instantaneous as successive thoughts of the mind.

It is only necessary that the act of killing be preceded

by a concurrence of will, deliberation, and premedita-

tion on the part of the slayer, and, if such is the case,

the killing is murder in the first degree.

In the present case, the trial court had no other alternative than to find the defendant guilty of will- ful, deliberate, and premeditated killing with mal- ice aforethought in view of the defendant’s acts in deliberately opening up a pocket knife, next cutting the victim’s throat, and then hacking and cutting un- til he had killed Cora Lucyle Dean. . . .

STATE V. SNOWDEN (continued)

Note that the statute mentioned in Snowden to describe first-degree murder is used by many jurisdictions. Those murders that result from poisoning, follow torture, or are traditional felony-murders are often designated first-degree murder. Following the attacks of September 11, 2001, some states amended their statutes to include deaths resulting from terrorist activity in the classification of first degree murders.6 Second- degree murder is commonly given the negative definition “all murders that are not of the first degree are of the second.” Second-degree murders differ from first in that the defendant lacked the specific intent to kill or lacked the premeditation and deliberation element of first-degree murder.

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110 Part i Criminal Law

Fourth, in some situations, defendants have claimed that, because of the low prob- ability of infecting another person, it is a factual impossibility to commit murder using AIDS. Fifth, AIDS may be characterized as a deadly weapon, and therefore, a charge of assault may be elevated to assault with a deadly weapon. Similarly, attacks leading to death may be treated as murder under the deadly weapon doctrine.

In most states, preexisting laws (e.g., murder, attempted murder, and intentional transmission of venereal disease) are relied upon to prosecute AIDS-related crimes. However, a few states have enacted statutes specifically directed at the intentional or negligent transmission of AIDS.

Manslaughter At common law, murder was an unlawful killing with malice aforethought. Manslaughter was an unlawful killing without malice aforethought. Just as was the case with murder, the common law did not divide manslaughter into degrees. Whenever the states began codifying homicides, it was common for manslaughter to be divided into degrees, commonly referred to as voluntary and involuntary, although a few jurisdictions used first- and second-degree language. Today, many jurisdictions continue to recognize two forms of manslaughter.

The important fact is that manslaughter is a lesser crime than murder; accordingly, it is punished less severely. It is a lesser crime because some fact or facts exist that make the defendant less culpable than a murderer in the eyes of the law. The most common fact that mitigates a defendant’s culpability is the absence of a state of mind that soci- ety has decided should be punished as murder. Even though society has decided that, because of such extenuating circumstances, a defendant should not be punished as a murderer, it has also decided that some punishment should be inflicted.

Provocation Provocation of the defendant by the victim can reduce a homicide from murder to man- slaughter. In jurisdictions that grade manslaughter, a provoked killing is treated as the higher manslaughter, whether that provoked killing is called first-degree or voluntary.

The theory of provocation, also known as “heat-of-passion manslaughter,” is that a defendant was operating under such an anger or passion that it was impossible for the defendant to have formed the desire to kill, which is required for both first- and second-degree murder. The defense of provocation applies to instances in which people act without thinking, and their impulsive act is the result of the victim’s behavior.

Again, an objective test is used when examining the defense of provocation. To prove provocation, it must be shown that the provoking act was so severe that a reasonable per- son may also have killed. It does not require that a reasonable person would have killed, only that a reasonable person would have been so affected by the act that homicide was possible. A few states have enumerated the acts that may function to negate intent to kill (and reduce the homicide to manslaughter) in their manslaughter statutes. Any act not included may not be used by a defendant to reduce a murder charge.

Catching one’s spouse in the act of adultery is an example of an act that is consid- ered adequate provocation to reduce any resulting homicide to manslaughter. This rule

manslaughter

■ A crime, less severe

than murder, involving the

wrongful but nonmalicious

killing of another person.

provocation

■ An act by one person

that triggers a reaction of

rage in a second person.

Provocation may reduce the severity of a crime.

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Chapter 4: Crimes Against the Person 111

applies only to marriages and not to other romantic relationships. Generally, serious assaults (batteries) may constitute adequate provocation.

If two people are engaged in “mutual combat,” then any resulting death may be reduced from murder to voluntary manslaughter. The key to this defense is mutuality. If it can be shown that the victim did not voluntarily engage in the fight, then the de- fense of mutual combat is not applicable, and the defendant is responsible for murder.

It is widely held that words and gestures are never adequate provocation. This is true regardless of how vile or vicious a statement or gesture is to the defendant. How- ever, some recent cases have distinguished statements that are informational from those that are not. In such situations, if a statement provides information of an act, and that act would be sufficient provocation, if witnessed, then the statement may also be provocation.

In the Schnopps case, the trial judge refused to instruct the jury on the alternative of manslaughter, as opposed to murder. The trial judge followed the rule that statements are never adequate provocation. The appellate court reversed the judge, holding that the statements made by the defendant’s wife directly before he killed her may have been adequate provocation for a jury to find voluntary manslaughter and not murder.

Usually, when claiming adultery as provocation, one must actually have caught his or her spouse in the act. Also, the general rule is that words are not adequate provoca- tion. What did the court do in the Schnopps case? It appears that the court attempted to sidestep those rules, in a manner that would permit the benefit of the defense without changing the rules. It did this by holding that in adulterous situations, an admission of adultery to one’s spouse, when uttered for the first time, is as shocking as finding one’s spouse engaged in the act.

On October 13, 1979, Marilyn R. Schnopps was fatally shot by her estranged husband George A. Schnopps. A jury convicted Schnopps of murder in the first degree, and he was sentenced to the man- datory term of life imprisonment. Schnopps claims that the trial judge erred by refusing to instruct the jury on voluntary manslaughter. We agree. We re- verse and order a new trial. . . .

Schnopps testified that his wife had left him three weeks prior to the slaying. He claims that he first became aware of the problems in his 14-year mar- riage at a point about six months before the slaying.

According to the defendant, on that occasion he took his wife to a club to dance, and she spent the evening dancing with a coworker. On arriving home, the defen- dant and his wife argued over her conduct. She told him that she no longer loved him and that she wanted a divorce. Schnopps became very upset. He admitted that he took out his shotgun during the course of this argument, but he denied that he intended to use it. . . . [The defendant and his wife continued to have marital problems for the next few months.]

On the day of the killing, Schnopps had asked his wife to come to their home and talk over their

COMMONWEALTH V. SCHNOPPS 383 Mass. 178, 417 N.E.2d 1213 (1981)

(continued)

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marital difficulties. Schnopps told his wife that he wanted his children at home, and that he wanted the family to remain intact. Schnopps cried during the conversation and begged his wife to let the chil- dren live with him and to keep their family together. His wife replied, “No, I am going to court, you are going to give me all the furniture, you are going to get the Hell out of here, and you won’t have noth- ing.” Then, pointing to her crotch, she said, “You will never touch this again, because I have got something bigger and better for it.”

On hearing those words, Schnopps claims that his mind went blank, and that he went “berserk.” He went to a cabinet and got out a pistol he had bought the day before, and he shot his wife and himself. . . . [Schnopps lived and his wife died.]

Schnopps argues that “[t]he existence of suf- ficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral state- ments rather than from personal observation,” and that a sudden admission of adultery is equivalent to a discovery of the act itself, and is sufficient evi- dence of provocation.

Schnopps asserts that his wife’s statements constituted a “peculiarly immediate and intense of- fense to a spouse’s sensitivities.” He concedes that the words at issue are indicative of past as well as

present adultery. Schnopps claims, however, that his wife’s admission of adultery was made for the first time on the day of the killing and hence the evidence of provocation was sufficient to trigger jury consideration of voluntary manslaughter as a possible verdict.

The Commonwealth quarrels with the defen- dant’s claim, asserting that the defendant knew of his wife’s infidelity for some months, and hence the killing did not follow immediately upon the provo- cation. Therefore, the Commonwealth concludes, a manslaughter instruction would have been im- proper. The flaw in the Commonwealth’s argument is that conflicting testimony and inferences from the evidence are to be resolved by the trier of fact, not the judge.

Withdrawal of the issue of voluntary man- slaughter in this case denied the jury the oppor- tunity to pass on the defendant’s credibility in the critical aspects of his testimony. The portion of Schnopps’ testimony concerning provocation cre- ated a factual dispute between Schnopps and the Commonwealth. It was for the jury, not the judge, to resolve the factual issues raised by Schnopps’ claim of provocation.

Reversed and remanded for new trial on the manslaughter issue.

COMMONWEALTH V. SCHNOPPS (continued)

Finally, the defense will not be available if there was a sufficient “cooling-off ” period. That is, if the time between the provocation and the homicide was long enough for a defendant to regain self-control, then the homicide will be treated as murder and not manslaughter.

Imperfect Self-Defense and Defense of Others If Aryana harms Ita while defending herself from Ita’s attack, Aryana is said to have acted in self-defense. Self-defense, when valid, normally works to negate criminal li- ability entirely. So, if Aryana kills Ita to avoid serious bodily harm or death, she has

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committed an excused homicide. What happens if Aryana was incorrect in her belief that her life was endangered by Ita? This is known as an imperfect self-defense and does not negate culpability entirely. It may, however, reduce liability. Thus, Aryana may be liable only for voluntary manslaughter and not murder. For Aryana to be successful in her claim, she must prove that she had a good-faith belief that her life was in danger and that the killing appeared to be necessary to protect herself.

A person may also have an imperfect self-defense when an excessive amount of force is used as protection. So, if Aryana was correct in her belief that she needed to use force for her protection, but used excessive force, she receives the benefit of reduced liability. Again, there must be a reasonable, although incorrect, belief that the amount of force used was necessary.

The concept of self-defense is extended to the defense of others. So, if Aryana kills Ita while defending Thea and Haris from apparent imminent harm, Aryana is no more liable than if she were defending herself. Just as with an imperfect self-defense, if individuals have a mistaken, but reasonable, belief that another is in danger, and they kill as a result of that belief, they are responsible for voluntary manslaughter rather than murder. Also, if one uses deadly force when a lesser amount of force would have been sufficient to stay the attack, liability is limited to manslaughter, provided that the belief that deadly force was necessary was reasonable under the circumstances.

Involuntary Manslaughter The lowest form of criminal homicide in most jurisdictions is involuntary manslaugh- ter, sometimes named second-degree manslaughter. In most instances involuntary manslaughter is a form of negligent or reckless manslaughter.

You have already learned the misdemeanor manslaughter rule. In jurisdictions that recognize the rule, the person who commits the misdemeanor that results in an unin- tended death is responsible for the lowest form of criminal homicide.

Involuntary manslaughter also refers to negligent homicide, vehicular homicide, and similar statutes that punish for unintended, accidental deaths. The classic vehicular homicide is when a motorist runs a red light, strikes another car, and causes the death of the driver or passenger of that automobile. Some states, such as Illinois, make ve- hicular homicide a separate crime from involuntary manslaughter and impose a lesser punishment for vehicular homicide.10

Be aware that many states now have specific statutes dealing with deaths caused by intoxicated drivers. Often the punishment is greater if the death is the result of a drunk or otherwise impaired driver.

The term negligent has a different meaning in criminal law than in civil law. In tort law, any unreasonable act that causes an injury creates tort liability. In criminal law, more must be shown. The risk taken by the defendant must be high and pose a threat of death or serious bodily injury to the victim. In addition, some jurisdictions require that the defendant be aware of the risk before liability can be imposed. Of course, knowledge can be inferred from the defendant’s actions. Some jurisdictions do not require knowledge of the risk (scienter).

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The Model Penal Code Approach to Homicide The Model Penal Code states, “A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes the death of another human being.”11 The Code then classifies all criminal homicides as murder, manslaughter, or negligent homicide. This is done by taking the four mens rea elements (purposeful, knowing, reckless, and negligent) and setting them into one of the classifications. There is some overlap; for example, under some conditions a reckless homicide is murder, and under other conditions it is manslaughter. Let us look at the specifics of the Code.

It is unsurprising that, all purposeful and knowing homicides are murder under the Model Penal Code. Additionally, a reckless homicide is murder when committed “under circumstances manifesting extreme indifference to the value of human life.” The Code then incorporates a “felony-murder” type rule, by stating that recklessness and indifference to human life are presumed if the accused was engaged in the commission or attempted commission of robbery, rape, arson, burglary, kidnapping, or felonious escape. So, if the accused are involved in one of those crimes, and a death results, they may be charged with murder under the Code. Note that the Code creates only a pre- sumption of recklessness and indifference, which may be overcome at trial. Murder is the highest form of homicide, and the Code declares it to be a felony of the first degree.

Manslaughters are felonies of the second degree under the Code. All reckless ho- micides, except those previously described, are manslaughters. As at common law, the Code contains a provision that reduces heat-of-passion murders to manslaughter. Specifically, the Code states that a homicide, which would normally be murder, is manslaughter when it is

committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances he believes them to be.

Last, negligent homicides are entitled just that. They are felonies of the third degree.

Life, Death, and Homicide The actus reus of murder and manslaughter is the taking of a human life. Determining when life begins and ends can be a problem in criminal law, especially when dealing with fetuses.

At common law it was not a crime to destroy a fetus, unless it was “born alive.” To be born alive, the fetus must leave its mother’s body and exhibit some ability to live independently. Some courts have required that the umbilical cord be cut and that the fetus show its independence thereafter before it was considered a human life. Breathing and crying are both proof of the viability of the child.

Today, many states have enacted feticide statutes that focus on the viability of the fetus. Once it can be shown that the fetus is viable—that is, could live indepen- dently if it were born—then anyone who causes its death has committed feticide. Of course, this does not apply to abortion. Since the United States Supreme Court

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decision in Roe v. Wade, 410 U.S. 113 (1973), a woman possesses a limited right to abort a fetus she carries. Thus, states may not prohibit abortions that are protected under that decision. The primary purpose of feticide statutes is to punish individu- als who kill fetuses without the mother’s approval, as occurred in the Keeler case (see Chapter 2).

At the other end of the life continuum is death. Medical advances have made the determination of when death occurs more complex than it was only years ago. For a long time, people were considered dead when they ceased breathing and no longer had a heartbeat. Today, artificial means can be used to sustain both heart action and respira- tion. That being so, should one be free of criminal homicide in cases where the victim is being kept “alive” by artificial means and there is no reasonable hope of recovery? Should a physician be charged with murder for “pulling the plug” on a patient who has irreversible brain damage and is in a coma? Using the respiration and heart-function test, it would be criminal homicide to end such a treatment. However, many states now use brain death, rather than respiration and heartbeat, to determine when life has ended. In states that employ a brain death definition, it must be shown that there is a total cessation of brain function before legal death exists. The importance of defining death is illustrated by the Fierro case.

The facts necessary for a resolution of this matter on appeal are as follows between 8 and 9 o’clock on the evening of 18 August 1977, Victor Corella was given a ride by Ray Montez and his wife Sandra as they were attempting to locate some marijuana. In the vicinity of 12th Street and Pima, Ray Montez heard his name called from another car. He stopped his car, walked over to the other car and saw that the passenger who had called his name was the defendant Fierro. Defendant told Ray Montez that his brother in the “M,” or “Mexican Mafia,” had in- structed the defendant to kill Corella. Ray Montez told defendant to do it outside the car because he and his wife “did not want to see anything.”

Montez returned to his car. Defendant followed and began talking with Corella. Corella got out of

the car. Montez started to drive away when defen- dant began shooting Corella. Corella was shot once in the chest and four times in the head. Following the shooting, Corella’s body was taken to the emer- gency room at Maricopa County Hospital. His blood pressure was very low due to secondary bleeding from the gunshot wound to the chest area. Surgery was performed in an effort to control the bleeding. He was then taken to the surgical intensive care unit, where a follow-up examination and evaluation revealed that he had suffered brain death. Corella was maintained on support systems for the next three days while follow-up studies were completed which confirmed the occurrence of brain death. The supportive measures were terminated and he was pronounced dead on 22 August 1977. . . .

STATE V. DAVID FIERRO 124 Ariz. 182, 603 P.2d 74 (1979)

(continued)

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Cause Of Death

At the trial, Dr. Hugh McGill, a surgical resident at the Maricopa County Hospital, testified that:

After surgery he was taken to the intensive-care unit.

He was evaluated by a neurosurgeon who felt there

was nothing we could do for his brain, he had brain

death. He remained somewhat stable over the next

two or three days. We had follow-up studies that con-

firmed our impression of brain death and because of

that supportive measures were terminated and he

was pronounced dead, I believe, on the 22nd. . . .

Defendant initially argues that the termination of support systems by attendant doctors three days after Corella suffered “brain death” was the cause of Corella’s death [and as such, he could not be re- sponsible for Corella’s death]. . . .

by the phrase “unchanged by human action” in Drury, we meant human action that changes or breaks the chain of natural events and of itself causes the death of the victim. In the instant case, the removal of life support systems did not change nor alter the natural progression of the victim’s physical condition from the gunshot wounds in the

head to his resulting death. There was no change “by human action.” . . .

In the instant case, the body of the victim was breathing, though not spontaneously, and blood was pulsating through his body before the life support mechanisms were withdrawn. because there was an absence of cardiac and circulatory arrest, under the common-law rule, he would not have been legally dead. Under the Harvard Medical School test and Pro- posal of the National Conference of Commissioners on Uniform State Laws, he was, in fact, dead before the life supports were withdrawn as he had become “brain” or “neurologically” dead prior to that time.

We believe that while the common-law defi- nition of death is still sufficient to establish death, the [brain death test] is also a valid test for death in Arizona. In the instant case, expert testimony was received, which showed that the victim suffered irreversible “brain death” before the life supports had been withdrawn. In effect, the doctors were just passively stepping aside to let the natural course of events lead from brain death to common-law death. In either case, the victim was legally dead for the purpose of the statute. . . .

STATE V. DAVID FIERRO (continued)

Suicide Successful suicide was a crime under the common law of England. The property owned by the one who committed suicide was forfeited to (taken by) the Crown. In early American common law, attempted suicide was a crime, usually punished as a misde- meanor. Today suicide is not treated as a crime. However, it is possible to restrain and examine individuals who have attempted to commit suicide under civil psychiatric commitment laws.

It continues to be criminal to encourage or aid another to commit suicide. In most situations such a commission is treated as murder. Assisting suicide may be treated as murder, or, as in Michigan, it may be a separate crime that is punished less severely.

The most well-known suicide cases involve Dr. Jack Kevorkian of Michigan. Dr. Kevorkian, a physician, assisted 20 terminally ill persons in committing suicide between 1990 and 1994, earning him the nickname Dr. Death.

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Dr. Kevorkian’s license to practice medicine was suspended in 1991 for his behav- ior, and criminal charges have been filed against him on several occasions. The first three cases were dismissed because the statute under which he was charged was held unconstitutional.

The Michigan legislature enacted a law in February 1993 that provided for as much as 4 years’ imprisonment and a $2,000 fine for providing the physical means by which another attempts or commits suicide or participates in a physical act by which another attempts or commits suicide. The person charged must have had knowledge that the other person intended to commit suicide.12

In 1999 Dr. Kevorkian allowed the news program 60 Minutes to nationally broad- cast his act of assisting Thomas Youk to die. However, Dr. Kevorkian went further than he had in previous cases. Rather than providing a machine to the patient that could assist in death, Dr. Kevorkian administered a lethal injection to Mr. Youk. He then challenged Michigan prosecutors to charge him again. They did, and Dr. Kevorkian was convicted of murder and sentenced to 10 to 25 years in prison. He was paroled in 2007 after serving 8 years in prison and died 4 years later.

While Dr. Kevorkian may have gone too far in committing euthanasia, his first three acquittals suggest that there is public support for physician-assisted suicide. In 1997 Oregon enacted the Death With Dignity Act. This law, which decriminalizes physician-assisted suicide under certain circumstances, is the first law of its type in U.S. history.13 Whether other states will follow Oregon’s lead remains to be seen. It will take individual state action to pave the way for physician-assisted suicide, however, since the Supreme Court handed down Washington v. Glucksberg (1997).14 In Glucksberg the Court found that terminally ill patients do not possess a privacy or due process right in having physicians assist them in committing suicide. Accordingly, state action is required to recognize the right.

Corpus Delicti Corpus delicti is a Latin phrase that translates as “the body of a crime.” Prosecutors have the burden of proving the corpus delicti of crimes at trial. Every crime has a corpus delicti. It refers to the substance of the crime. For example, in murder cases the cor- pus delicti is the death of a victim and the act that caused the death. In arson, the corpus delicti is a burned structure and the cause of the fire.

A confession of an accused is never enough to prove corpus delicti. There must be either direct proof or evidence supporting a confession.

In murder cases the corpus delicti can usually be proved by an examination of the victim’s corpse. After an autopsy a physician is usually prepared to testify that the al- leged act either did, or could have, caused the death. In some instances, the body of a victim cannot be located. Such “no body” cases make the job of the prosecution harder. Even so, if evidence—such as blood stains and discovered personal effects—establishes that the person is dead, then murder may be proven. Of course, the prosecution must also show that the defendant caused the death. So, if a defendant confesses to a mur- der, or makes other incriminating statements, and no other evidence is found, then no

corpus delicti

■ (Latin) “The body of

the crime.” The material

substance upon which a

crime has been committed;

for example, a dead body

(in the crime of murder) or

a house burned down

(in the crime of arson).

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corpus delicti exists, and the defendant cannot be convicted. However, if blood match- ing the victim’s is discovered where the defendant stated the murder occurred, then a murder conviction can be sustained.

aSSault and Battery Assault and battery are two different crimes, although they commonly occur together. As with homicide, all states have made assaults and batteries criminal by statute.

A battery is an intentional touching of another that is either offensive or harmful. The mens rea element varies among the states; however, most now provide for both in- tentional and negligent battery. Of course, negligence in criminal law involves a greater risk than in civil law. To be negligent in criminal law, there must be a disregard of a high risk of injury to another; in tort law, one need only show a disregard of an ordinary risk. The Model Penal Code provides for purposeful, knowing, and reckless batteries. In addition, if one uses a deadly weapon, negligence may give rise to a battery charge. Otherwise, negligence may not provide the basis for a battery conviction.

The actus reus of battery is a touching. An individual need not touch someone with his or her actual person to commit a battery. Objects that are held are considered extensions of the body. If Sherry strikes Doug with an iron, she has battered him even though her person never came into contact with his. Likewise, items thrown at another are extensions of the person who took the act of propelling them into the air. If Doug were to injure Sherry with a knife he threw at her, then he has battered her.

A touching must be either offensive or harmful to be a battery. Of course, any re- sulting physical injury is proof of harm. The problem arises when one touches another in a manner found offensive to the person being touched, but there is no apparent physical injury. For example, a man who touches a woman’s breast without her consent has committed a battery because the touching is offensive. If a person touches another in an angry manner, a battery has been committed, even though the touching was not intended to injure the party and in fact does no harm.

There are two varieties of assault. First, when a person puts another in fear or apprehension of an imminent battery, an assault has been committed. For example, if Gary attempts to strike Terry, but Terry evades the swing by ducking, Gary has com- mitted an assault. The rule does not require that the victim actually experience a physical blow; apprehension of an impending battery is sufficient. Apprehension is simply an expectation of an unwanted event. Also, the threat must be imminent to rise to the level of an assault. A threat that one will be battered in the future is not sufficient. So, if Terry told Gary that he was “going to kick the shit out of him in one hour,” there is no assault.

Because an apprehension by the victim is required, there is no assault under this theory if the victim was not aware of the assault. For example, if X swings his arm at Y intending to scare Y, but Y has her back turned and does not see X’s behavior, then there is no assault. This is not true of batteries. If X strikes Y, a battery has been com- mitted, regardless of whether Y saw the punch coming.

assault

■ An intentional threat,

show of force, or movement

that could reasonably make

a person feel in danger of

physical attack or harmful

physical contact. It can be a

crime or tort.

battery

■ An intentional,

unconsented to, physical

contact by one person (or

an object controlled by

that person) with another

person. It can be a crime

or a tort.

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The second type of assault is an attempted battery. This definition remedies the problem just discussed. Any unsuccessful battery is an assault, regardless of the victim’s knowledge of the act. Of course, it must be determined that the act in question would have been a battery if it had been completed.

To prove battery, it must be shown that a contact was made. Making contact is not necessary to prove an assault. However, it is possible to have both an assault and a battery. If John sees Henry swing the baseball bat that strikes John, there has been an assault and battery. However, due to the doctrine of merger, the defendant will be punished only for the higher crime of battery.

Aggravated Assault and Battery Under special circumstances, an assault or battery can be classified as aggravated. If aggravated, a higher penalty is imposed. The process of defining such crimes as more serious than simple assaults and batteries varies. Statutes may call such crimes aggra- vated assault or battery; or they may refer to specific crimes under a special name, such as assault with intent to kill; or they may simply use the facts at the sentencing stage to enhance (increase) the sentence; or they may refer to such crimes as a higher assault, such as felony assault rather than misdemeanor assault. In any event, the following facts commonly aggravate an assault or battery.

The assault is aggravated if the assault or battery is committed while the actor is engaged in committing another crime. So, if a man batters a woman while possessing the specific intent to rape her, he has committed an aggravated battery. This is true regardless of whether the rape was completed. If a defendant is stopped before he has committed the rape, but after he has assaulted or battered the victim, there has been an aggravated battery. Hence the crime may be titled “assault with intent to commit rape” or “assault with intent to murder.”

It is also common to make assault and battery committed on persons of some special status more serious. Law enforcement officers or other public officials often fall into this category. Of course, the crime must relate to the performance or status of the officer to be aggravated. For example, if an off-duty police officer is struck by an angry

Crime in tHe united StateS

In 2011, there were 751,131 aggravated assaults in the United States; that is, 241 aggravated assaults per 100,000 people. between 2002 and 2011, re- ported aggravated assaults declined more than 22 percent.

Source: Uniform Crime Reports, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

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neighbor over a boundary dispute, the battery is not aggravated. Examples of other protected classes of individuals are minors and the mentally disabled.

The extent of injury to the victim may also lead to an increased charge. Usually a battery may be aggravated if the harm rises to the level of “serious bodily injury.” Some statutes specifically state that certain injuries aggravate the crime of battery, such as the loss of an eye. Mayhem, a related crime, is discussed next.

mayHem Mayhem, originally a common-law crime, is the crime of intentionally dismembering or disfiguring a person. The crime has an interesting origin. In England, all men were to be available to fight for the king. It was a serious crime to injure a man in such a manner as to make him unable to fight. Early punishments for mayhem were incarceration, death, and the imposition of the same injury that had been inflicted on the victim. Originally, only dismemberment that could prevent a man from fighting for the king was punished as mayhem. As such, cutting off a man’s leg or arm was punishable, whereas cutting off an ear was not. Of course, causing a disfigurement was not mayhem.

Today, both disfigurement and dismemberment fall under mayhem statutes. Many jurisdictions specifically state what injuries must be sustained for a charge of mayhem. Causing another to lose an eye, ear, or limb are examples, as is castration.

Some states no longer have mayhem statutes. They have chosen to treat such crimes as aggravated batteries.

Sex CrimeS This section deals with crimes that involve sex. Keep in mind that crimes such as assault and battery may be sexually motivated. For example, if a man touches a woman’s breast, he has committed a battery (provided that the touching was unwelcome).

The term “sex crimes” actually encompasses a variety of sexually motivated crimes. Rape, sodomy, incest, and sexually motivated batteries and murders are included. Ob- scenity, prostitution, abortion, distribution of child pornography, and public nudity are examples of other sex-related offenses.

Although certain offenses are universally prohibited, other offenses vary among the states. For example, rape is criminal in all states, but prostitution is not.

Rape At common law, the elements of rape were (1) sexual intercourse with (2) a woman, not the man’s wife (3) committed without the victim’s consent and by using force. Many problems were encountered with this definition. First, the common-law defi- nition required that the rapist be a man. Hence, women and male minors could not be convicted of rape. Also, the marital rape exception provided that men could not be convicted of raping their wives. Similarly, a man could not be charged with battering

rape

■ The crime of imposing

sexual intercourse by

force or otherwise without

legally valid consent.

mayhem

■ The crime of violently,

maliciously, and

intentionally giving

someone a serious

permanent wound. In

some states, a type of

aggravated assault. Once,

the crime of permanently

wounding another (as

by dismemberment) to

deprive the person of

fighting ability.

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his wife if the battery was inflicted in an effort to force sex. This exception was founded upon the theory that when women married they consented to sex with their husbands upon demand. Additionally, many courts wrote that to permit a woman to charge her husband with such a crime would lead to destruction of the family unit. Finally, the last requirement, with force and without consent, led many courts to require victims to resist the attack to the utmost and to continue to resist during the rape.

States have changed the common-law definition of rape to remedy these problems. First, most states have worded their statutes to permit minors and women to be charged with rape. While there are few cases of women actually raping men, or other women, there are several cases where women have been convicted as principals to the crime.15 The Model Penal Code is gender neutral regarding all sex crimes except rape.16

The marital rape exception has been abolished in most states. A few states have re- tained the rule in modified form; Ohio, for example, provides immunity to a husband except when he is separated from his wife.17

Finally, the last requirement has changed significantly. A person need not resist to the extent required under the common law. What is required now is proof that the victim did resist. However, a victim need not risk life or serious bodily injury in an attempt to prevent the rape. So, if a woman simply tells a man on a date, “I don’t want

reCidiViSm By Sexual oFFenderS

Special legislation dealing with sexual predators can be found as early as 1930. In recent years, states have enacted laws requiring treatment after re- lease from prison, monitoring after release, castration as part of sentences, and civil commitment of offenders after release. One reason sexual offend- ers receive so much attention is the apparent inability to treat and reform them. The recidivism rate of sexual offenders is much higher than that of those who commit other crimes. One study found that rapists and child molesters reported that they had committed five or more sexual offenses for which they had not been arrested. As many as 50 percent of all sexual offenders will reoffend after being released from prison. Within three years of release, 7.7 percent of rapists commit another rape. Nearly one-third of rapists commit some form of violent crime within three years of release.

Contrary to a prevailing myth, a sex offender’s likelihood of reoffending does not diminish with age. Some experts believe what is critical is iden- tifying potential sex offenders at an early age. Research has shown that the level of violence committed by sex offenders increases as their acts go undiscovered.

Source: Steven I. Friedland, “On Treatment, Punishment, and the Civil Commitment of Sex Offenders,” 70 U. Colo. L. Rev. 73 (1999).

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CHAPTER 5 Chapter Outline Arson Burglary Theft Crimes

Introduction to Theft Crimes Larceny Embezzlement False Pretenses Receiving Stolen Property Robbery Extortion Consolidated Theft Statutes Identity Theft The Model Penal Code Consolidation Destruction of Property Computer Theft Crimes

Ethical Considerations: The Ineffective Assistance of Counsel

Chapter Objectives

After completing this chapter you should be able to:

• list the elements of historic and contemporary crimes involving property and habitation, such as arson, burglary, and larceny.

• identify the crimes of arson, burglary, and larceny in given fact scenarios.

• describe how computers and the Internet have given rise to new ways to commit old crimes and how the law is changing to deal with these developments.

• identify the material facts and legal issues in one-third of the cases you read, and describe the court’s analyses and conclusions in the cases.

CRimEs AgAinsT PRoPERTy And HAbiTATion

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Arson Michael Marin, former Wall Street trader, Yale University School of Law graduate, and believed-to-be a millionaire, called the Phoenix, Arizona emergency line on July 5, 2009, to report that his estate mansion was ablaze. He reported having escaped the fire by wearing scuba gear to avoid the inhalation of smoke, and scaling down a rope ladder from the second floor. Later it was discovered that Marin was broke and unable to pay his bills. Police also discovered, thanks in part to a well-trained canine, that the fire was set intentionally. Marin was charged with arson and convicted in 2012. Moments after the verdict was read, Marin was seen on a court television monitor taking a drink from a sports bottle. He collapsed and died. Subsequent test- ing revealed that he ingested the poison cyanide. Oddly, the day Marin set fire to his home is the day of the greatest number of arsons in U.S. history, according to one source.1

Arson is a crime against property. In addition, it is a crime against habitation. Crimes against habitation developed because of the importance of peoples’ homes. In England and the United States, the concept that a “man’s home is his castle” has great influence. A home is not merely property but, rather, a refuge from the rest of the world. As such, special common-law crimes developed that sought to protect this important sanctuary. Arson and burglary are such crimes.

At common law, arson was defined very narrowly. It was the (1) malicious (2) burning of a (3) dwelling house of (4) another. This definition was so narrowly construed that owners could burn their own property with an intent to defraud their insurers and not be guilty of arson, because they did not burn the dwelling of another.2 In addition, the structure burned had to be a dwelling, which was defined as a structure inhabited by people. This definition did include outhouses and the area directly around the home (curtilage), as long as the area was used frequently by people. However, the burning of businesses and other structures was not arson.

To be a burning, the dwelling must actually sustain some damage, although slight damage was sufficient. If the structure is simply charred by the fire, there is a burning. However, if the structure is only smoke-damaged or discolored by the heat of a fire that never touched the building, there is no arson. Finally, causing a dwelling to explode is not arson, unless some of the dwelling is left standing after the explosion and is then burned by a fire caused by the explosion.

At common law, malice was the mens rea of arson. As was true of murder at com- mon law, malice meant evil intent. However, an intentional or extremely reckless burn- ing would suffice.

Today, the definition of arson has been broadened by statute in most, if not all, states. It is now common to prosecute owners of property for burning their own build- ings, if the purpose was to defraud an insurer or to cause another injury. Be aware that the fraud may constitute a separate offense: defrauding an insurance carrier. Also, the structure burned need not be a dwelling under most statutes, though most statutes ag- gravate the crime if a dwelling is burned. Although the common law did not recognize explosions as a burning, the Model Penal Code and most statutes do.3

arson

■ The malicious and

unlawful burning of a

building.

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The mens rea for arson under the Model Penal Code is purposeful and reckless. If a person starts a fire or causes an explosion with the purpose of destroying the building or defrauding an insurer, a felony of the second degree has been committed. It is a felony of the third degree to purposely start a fire or cause an explosion and thereby recklessly endanger a person or structure.4 Note that under the Model Penal Code the fire need not touch the structure, as was required by the common law. Setting the fire is enough to satisfy the burning requirement.

Arson is often graded. The burning of dwellings is usually the highest form of the crime. The burning of uninhabited structures is usually the next highest form of arson, and arson of personal property, if treated as arson, is the lowest.

BurglAry The (1) breaking and entering (2) of another’s dwelling (3) at night (4) for the purpose of committing a felony once inside, was burglary at common law. A burglary, or entry of a dwelling, may be for the purpose of theft, rape, murder, or another felony. For that reason, burglary is a crime against habitation, as well as against property and person.

CrIME In THE unITED sTATEs

In 2011, a total of 52,333 arsons were reported. There were 18 offenses per 100,000 residents in that year.

Source: Crime in the United States, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

CrIME In THE unITED sTATEs

In 2011 there was a total of slightly fewer than 2.2 million burglaries and attempted forcible entries to structures in the United States. Of all the prop- erty crimes in 2011 in the United States, 24% were burglaries. Unlike many crimes, burglary is on the rise, the 2009 rate being 1.7% higher than the 2002 rate. Of all burglaries, 75% percent are of residences. Most residential burglaries occur during the day, while most nonresidential burglaries occur at night.

Source: Crime in the United States, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

burglary

■ Unlawfully entering

the house of another

person with the intention

of committing a felony

(usually theft).

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The first element, the actus reus, a breaking, can be satisfied by either an actual break-in or by a constructive breaking. If one enters a dwelling by simply passing through an open door or window (a trespass), there is no breaking. Generally, there has to be some act by the defendant to change the condition of the house so as to gain entry. For example, opening an unlocked door or window is a breaking, while pass- ing through an open door or window is not a breaking. Of course, picking a lock and breaking a window or door are breakings.

A burglar may also gain entry by a constructive breaking. A constructive breaking occurs when one uses fraud or force to gain entry. So, if a burglar poses as a telephone repair worker to gain entry, then the breaking element has been satisfied. The same is true if the owner consents to the burglar’s entry under threat or the use of force.

Once the breaking occurs, there must be an entry of the home. The burglar does not need to fully enter the structure; an entry occurs if any part of the burglar’s body enters the house. So, the individual who breaks a window and reaches in to grab an item has entered the house.

Modern statutes have eliminated the breaking requirement, although most still require some form of “unlawful entry.” Because trespasses, frauds, and breakings are unlawful, they satisfy modern statutory requirements.

The second element required is that the breaking and entry be of another person’s dwelling. As with arson, at common law the structure had to be a dwelling. The person who lives in the dwelling does not have to be the owner, only an occupant. As such, rental property is included. Interestingly, at least one court has held that churches are dwellings, regardless of whether a person actually resides in the church, premised on the theory that churches are God’s dwellings.5 The dwelling had to belong to another person, so one could not burglarize one’s own property. No jurisdiction continues to require that the structure be a dwelling. Most statutes now refer to all buildings or other structures.6 However, if the structure burglarized is a dwelling, most states punish the crime more severely than if it was another type of building.

Exhibit 5–1

Actual breaking through the door

Entry through a closed unlocked door is considered

a breaking

Entry through an open door is not a breaking

Gaining entry by threatening or

coercing occupant to open door is a

constructive breaking

Gaining entry through fraud

is a constructive breaking

Co py

rig ht

en ga

ge L

ea rn

in g®

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Chapter 5: Crimes Against Property and Habitation 147

The third element was that the burglary occur at night. Although this is no longer an element of burglary, many states do aggravate the crime if it happens at night.

The fourth element is that the person entering must have as a purpose the com- mission of a felony once inside. This is the mens rea of the crime. If the person’s intent is only to commit a misdemeanor, there is no burglary. If Jay’s intent is to murder Mark, there is a burglary. It is not a burglary if Jay’s intent is to punch Mark in the nose.

Of course, many breakings and enterings with an intent to commit a burglaries are not completed. A burglar may be caught by surprise by someone who was not known to be inside and flee from the property. It also happens that burglars are caught in the act by occupants who return to the building. In any event, what is important is that the intended felony need not be completed. All that needs to be proven is that the accused entered with an intent to commit a felony. As is always true, proving a person’s subjec- tive mental state is nearly impossible. Thus, juries are permitted to infer intent from the actions of the defendant. A jury did just that in the Lockett case.

Some statutes now provide that intent to commit any crime is sufficient, whether misdemeanor or felony. However, many continue to require an intent to commit either felony or any theft.

Gerry Lockett was charged with residential burglary, convicted after a jury trial, and sentenced to 8 years imprisonment. . . .

At about 3:00 a.m. on November 27, 1987, Allan Cannon entered his apartment, which he shared with his sister. Cannon noticed a broken window in his sister’s bedroom. He then saw a man, whom he did not know, standing about six feet away from him in the apartment hallway. The only light came from the bathroom off the hallway. The man said to Cannon, “I know your sister.” Cannon fled the apart- ment to call the police from the nearby El station. Outside his apartment, Cannon saw the man run- ning down an alley. Cannon described the man to police as a dark black man with curly hair, about 5’5" weighing about 200 pounds.

Cannon returned to his apartment and noticed that his bicycle had been placed on his bed, and that his sister’s baby clothes, which had been packed

in bags, had been thrown all over. Although the apartment was in a general state of disarray, which Cannon admitted was not uncommon, nothing had been taken. . . .

Lockett also argues, without merit, that the evidence could not support an inference of his intent to commit a theft. But when Cannon entered his apartment, he found a broken window and later noticed a rock and broken glass on the floor, indicating that the window had been broken from outside. Cannon also discovered contents of the apartment had been rearranged and thrown about. Even assuming that Lockett was, as he said, an acquaintance of Cannon’s sister, and that the Cannons, as defense counsel implied, were less than diligent housekeepers, Lockett’s presence, without permission, in the dark, empty apartment, at 3 a.m., supported the jury’s inference of intent to commit a theft.

STATE OF ILLINOIS V. GERRY LOCKETT 196 Ill. App. 3d 981, 554 N.E.2d 566 (1990)

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148 Part i Criminal Law

In summary, most jurisdictions have changed burglary in such a way that the following elements are common: (1) an unlawful entry (2) of any structure or building (3) for the purpose of committing a felony or stealing from the premises (4) once inside.

As mentioned, burglary may be graded and higher penalties imposed if the act occurred at night; involved a dwelling or was perpetrated at a dwelling that was actually inhabited at the time of the crime; or was committed by a burglar with a weapon. See Exhibit 5–1 for a summary illustration of burglary.

THEfT CrIMEs Introduction to Theft Crimes There are many types of theft. It is theft to take a pack of gum from a grocery store and not pay for it; for a lawyer to take a client’s trust fund and spend it on personal items; for a bank officer to use a computer to make a paper transfer of funds from a patron’s account to the officer’s with an intent to later withdraw the money and abscond; and to hold a gun on a person and demand that property and money be surrendered. How- ever, they are all fundamentally different crimes.

Some thefts are more violative of the person, such as robbery, and others are more violative of a trust relationship, such as an attorney absconding with a client’s money. The crimes also differ in the methods by which they are committed. A robbery involves an unlawful taking. Embezzlement, however, involves a lawful taking with a subse- quent unlawful conversion.

Larceny was the first theft crime. It was created by judges as part of the common law. The elements of larceny were very narrow and did not cover most thefts. Larceny began as one crime, but developed into many different crimes. This was not a fluid, orderly development, for two reasons. First, when larceny was first created, well over 600 years ago, the purpose of making it criminal was more to prevent breaches of the peace (fights over possession of property) than to protect ownership of property. Larceny did not prohibit fraudulent takings of another’s property. The theory was that an embezzlement or other theft by trick was less likely to result in an altercation (breach of the peace) between the owner and the thief, because the owner would not be aware of the theft until after it was completed. Using this theory, many courts were reluctant to expand the scope of larceny. Second, at early common law, larceny was punishable by death. For this reason, some judges were reluctant to expand its reach.7

Eventually, two other theft crimes were created, embezzlement and false pretenses. Despite the creation of these crimes, many theft acts continued to go unpunished because they fell into the cracks that separated the elements of the three common-law theft crimes. Some courts attempted to remedy this problem by broadening the definitions of the three crimes. However, computers, electronic banking, and other technological advances have led to new methods of stealing money and property, posing problems not anticipated by the judges who created the common-law theft crimes. Some states have changed their definitions of larceny, false pretenses, and embezzlement to be more contemporary. Other states have simply abandoned the common-law crimes and have enacted consolidated theft statutes. The common-law theft crimes, modern consolidated theft statutes, and the Model Penal Code approach to theft are discussed here.

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Larceny At common law the elements of larceny were (1) the trespassory taking (2) and carrying away (asportation) (3) of personal property (4) of another (5) with an intent to permanently deprive the owner of possession. The actus reus of larceny was the t aking and carrying away of personal property of another. The mens rea was the intent to permanently deprive the owner of possession.

To have had a common-law larceny, there must have been a “taking” of property. A taking alone would not have sufficed; the taking must have been unlawful or trespas- sory. That is, the property must be taken by the defendant without the owner’s consent. This element is concerned only with the method that the defendant used in acquiring possession. For example, if Mandy takes Sean’s wallet from his hand, she has commit- ted a taking. However, if Sean were to give Mandy his wallet with the understanding that she is to return it at a specified time, there is no unlawful taking when she does not return it; she lawfully acquired possession of the wallet. Taking property from another without that person’s consent was a trespass under the common law, but failing to return property was not.

In an effort to protect employers (masters) from theft by their employees (servants), the theory of constructive possession was created. This theory held that when an employee received actual possession of the employer’s property as part of the job, the employer maintained “constructive possession” while the employee had custody of the property. If this theory had not been developed, employees would have been free to steal property entrusted to them, as larceny required a trespassory taking. Of course, if an employee took property that was not under his or her care, there was a trespassory taking.

larceny

■ Stealing of any kind.

Some types of larceny are

specific crimes, such as

larceny by trick or grand larceny.

CrIME In THE unITED sTATEs

The United States Department of Justice includes the following as larceny for the purpose of the Uniform Crime Reporting Program: shoplifting, pocket-picking, purse-snatching, thefts from automobiles, thefts of motor vehicles, and all other thefts of personal property that occur without the use of force. The program shows that there were 6.2 million reported larcenies in the United States in 2011. This represents 1,977 thefts per 100,000 people, a decrease of 19 percent from 2002. Of all property crimes, 68% were thefts. The average loss for a victim was $987 with over $6 billion dollars in total loss to all victims of larceny. Motor vehicle parts are the most common items stolen. In addition, over 715,000 automobiles were stolen in 2011, or 230 per 100,000 people, a 43% decline since 2002.

Source: Crime in the United States, United States Department of Justice, Federal Bureau of Investigation, 2012.

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150 Part i Criminal Law

Interestingly, the theory of constructive possession was never extended to other relationships. This led to the creation of a new crime—embezzlement.

Once the taking has been effected, the defendant must carry away the property. This carrying away is called asportation. Generally, any asportation, even slight move- ment, will satisfy this requirement. The term asportation is deceiving, as not all prop- erty has to be “carried away” to satisfy this requirement. Riding a horse away will satisfy the requirement, as will driving another’s automobile. Most states have done away with the asportation requirement by statute.

Third, the item stolen must be personal property. Land and items attached to land (e.g., houses) are considered real property. Theft of such property was not larceny. All other property is personal property. Objects that are movable property are personal property. In the early years of larceny, there was a further requirement that the item sto- len be tangible personal property. Tangible personal property includes most items, such as automobiles, books, electronic equipment, and the like. Documents, such as stocks, bonds, and promissory notes, which represent ownership of something, are considered intangible property. It was not larceny to steal intangible personal property. Under modern statutes, most states have broadened theft to include all types of property.

The fourth element is that the personal property taken and carried away must be owned by another. One cannot steal from oneself. However, the rule was extended to prohibit prosecution of a partner for taking partnership assets and joint tenants from taking each other’s things; also, because husband and wife were one person under the common law, it was not possible for spouses to steal from one another.

Finally, the mens rea element: It is required that the defendant intend to perma- nently deprive the owner of possession of the property. In short, to be a thief one must have an intent to steal. If Jack takes Eddie’s lawn mower, intending to return the mower when he has completed his mowing, he has not committed larceny, as he did not pos- sess an intent to permanently deprive Eddie of his possession of the mower. Also, the accused must intend to deprive an owner (or possessor) of property to be guilty of larceny. If an accused had a good-faith belief that he had lawful right to the property, the requisite mens rea did not exist, and there was no larceny.

Although proving “an intent to permanently deprive the owner of possession” is the common method of proving the mens rea of larceny, it is not the only method. Courts have held that if the property is held so long that it causes the owner to lose a significant portion of its value, a larceny has occurred. Some cases have held that if the property is taken with an intent to subject the property to substantial risk, there is a larceny. Of course, the intent must exist at the time of taking. To illustrate this last method, imagine a thief who steals a plane intending to use it in a daredevil show. In such a case the thief is subjecting the property to a substantial risk, and even though the intent was to return the plane when the show was over, there is a larceny.

Embezzlement The definition of larceny left a large gap that permitted people in some circumstances to steal from others. That gap was caused by requiring a trespassory taking of the prop- erty. For various reasons, people entrust money and property to others. The intent is

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not to transfer ownership (title), only possession. A depositor of a bank gives possession of money to the bank; a client may give an attorney money to hold in a trust account; a stockbroker may keep an account with a client-investor’s money in it. In all of these situations, the money is taken lawfully; there is no trespassory taking. So, what happens if the person entrusted with the money converts (steals) it after taking lawful possession? At the early common law, it was not a crime. However, the thief could have been sued for recovery of the stolen money.

This theory was carried to an extreme in a case in which a bank teller converted money handed to him by a depositor to himself, by placing the money in his own pocket. It was held that there was no larceny, because the teller acquired the money lawfully. The court also determined that there was no larceny under the theory of con- structive possession, because the employer (bank) never had possession of the money. If the teller had put the money in the drawer and then taken it, the bank would have had constructive possession, and he would have committed larceny. The result was that the teller was guilty of no crime.8 Unsatisfied with this situation, the English Parliament created a new crime: embezzlement.

The elements of embezzlement are (1) conversion (2) of personal property (3) of another (4) by one who has acquired lawful possession (5) with an intent to defraud the owner.

To prove embezzlement, the prosecution must first show that an act of conversion occurred. Conversion is the unauthorized control over property with an intent to permanently deprive the owner of its possession or which substantially interferes with the rights of the owner.

As was the case with larceny, only tangible personal property was included. Today, nearly all forms of personal property may be embezzled. Also, the property had to be- long to another. One could not embezzle one’s own property.

The element that distinguished embezzlement from larceny was the taking re- quirement. Whereas larceny required a trespassory taking, embezzlement required lawful acquisition. Accountants, lawyers, bailees, executors of estates, and trustees are examples of those who can commit embezzlement.

To satisfy the mens rea requirement of embezzlement, it must be shown that the defendant possessed an “intent to defraud.” Mere negligent conversion of another’s property is not embezzlement. Because the mens rea requirement is so high, bona fide claims of mistake of fact and law are valid defenses. If an accountant makes an account- ing error and converts a client’s money, there is no embezzlement. This is a mistake of fact. If a friend you loaned money to keeps the money with the mistaken belief that he is allowed to in order to offset damage you caused to his property last year (when the law requires that he sue you for the damage), there is no embezzlement. This is a mistake of law and negates the intent required, as does a mistake of fact.

Embezzlement is prohibited in all states. Some states have retained the name embezzlement; others have named it theft and included it in a consolidated theft stat- ute. Embezzlement, which occurs in interstate commerce, federally insured banks, and lending institutions, or involves officers and agents of the federal government, is also made criminal by the statutes of the United States.9 Statute 18 U.S.C. § 641 is

embezzlement

■ The fraudulent and

secret taking of money or

property by a person who

has been trusted with it.

This usually applies to an

employee’s taking money

and covering it up by

faking business records or

account books.

conversion

■ Any act that deprives an

owner of property without

that owner’s permission

and without just cause.

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152 Part i Criminal Law

the embezzlement of public monies, property, and records statute. Violation of that provision, if the property embezzled has a value of $100 or greater, results in a fine of up to $10,000 and 10 years in prison. The remainder of that statute deals with embezzlement of nonpublic property that occurs in interstate commerce or by federal officials. The penalties vary for each provision.

False Pretenses At common law, it was not larcenous to use lies (false representations) to gain ownership of property. For example, if Brogan were to sell Sean a ring containing glass, while representing to Sean that the ring contained a diamond, it was not larceny under the early common law, even though Brogan knew that the ring contained glass. The early judges believed strongly in the concept of caveat emptor, which translates as “let the buyer beware.”

As it had done with embezzlement, Parliament decided to make such acts criminal. It did so by creating the crime of false pretenses. The elements of false pretenses are (1) a false representation of (2) a material present or past fact (3) made with knowledge that the fact is false (4) and with an intent to defraud the victim (5) thereby causing the victim to pass title to property to the actor.

To prove the first element, it must be shown that the actor made a false representa- tion. This representation may be made orally or by writing, or may be implied by one’s actions. The law does not require that people disclose all relevant information during a business transaction—caveat emptor still exists in that regard. The law does, however, require that any affirmative statements (or implications from actions) be true. So, if a buyer fails to ask if property has a lien against it, there is no false pretense if the seller does not inform the buyer of such. The opposite is true if the buyer inquires about existing liens and encumbrances and is told there are none.

The false representation must be important to the transaction. If the statement is important, the law says that it is material. Generally, a representation is material if it would have had an impact on the victim’s decisionmaking had the victim known the truth at the time the transaction took place. For example, if Connie represents to Pam that the lighter in a used car she is selling works, when it does not, she has not com- mitted false pretenses. However, if she states to Pam that the automobile recently had its engine replaced, that would be material and she would be liable for false pretenses if she knew that the statement was untrue.

The fact conveyed by the actor must not only be material, but it must also concern a present fact or past fact. In this context, present refers to the time of the transaction. Statements of expected facts, promises, predictions, and expectations cannot be the basis of false pretenses. So, if Aaron buys an automobile from Kathy and promises to pay her in 6 months, it is no crime if he fails to pay because he loses his source of income during that period. To permit breaches of such promises to be criminal would be the same as having a debtor’s prison, which is not recognized in the United States. The same is not true if Aaron made the promise but had no intent of paying the debt. Some states treat this as false pretenses under the theory that his state of mind at the

false pretenses

■ A lie told to cheat

another person out of his

or her money or property.

It is a crime in most

states, though the precise

definition varies.

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time of the sale was fraudulent. Some states do not treat his action as criminal and place the burden on Kathy to seek her own remedy in a civil cause of action. It is also neces- sary that the representation be one of fact. Accordingly, opinions are not included. Of course, the line between fact and opinion is often unclear.

It must also be proved that the defendant knew the statement was false. An unin- tentional misrepresentation is not sufficient to establish this element in most jurisdic- tions, although most jurisdictions will find knowledge if the lower mens rea standard, recklessness, is proved.

The defendant must have the additional mens rea of “intent to defraud.” As with other theft crimes, if persons have a bona fide belief that a particular property belongs to them, there is a defense. In addition to intending to defraud the victim, it must also be shown that the victim was defrauded. Hence, if the victim was aware of the falsity of the statement and entered into the bargain anyway, there has been no crime.

Finally, the misrepresentation must be the cause of the victim passing title to prop- erty to the defendant. Title is ownership. Transferring possession to the defendant is not adequate. However, causing one to transfer possession of property by use of fraud was a type of larceny, known as larceny by trick. Just as with larceny and embezzlement, only tangible personal property was included within the grasp of the prohibition at early common law. Today, false pretenses usually includes all property that is subject to the protection of larceny—in most instances, this includes all personal property.

Fraudulent Checks Related to the crime of false pretenses is the crime of acquiring property or money by writing a check (draft) from an account that has insufficient funds to cover the draft. The act appears to fall into the category of false pretenses. Some theorize that a check is a promise of future payment, and, accordingly, the check does not meet the “represen- tation of present or past fact” requirement of false pretenses. Courts have rejected that theory and held that at the time one drafts a check, a representation is made that there are adequate funds in the account to pay the amount drafted.

Today, most states have bad-check statutes. Conviction of these laws, for the most part, results in a less serious punishment than conviction on false pretenses.10 Three common material elements are found in bad-check statutes. First, the mens rea may be proven by showing either an intent to defraud the payee or knowledge that there were insufficient funds in the account. Second, the check must be taken in exchange for something of value; third, there must have been insufficient funds in the account.

Mail Fraud Another crime related to false pretenses is mail fraud.11 Mail fraud is a crime against the United States, because the mail system is run by a federal agency. Using the U.S. mail system with an intent to defraud another of money or property is mail fraud. The intended victim need not be defrauded; the act of sending such mails with the intent to defraud is itself criminal.

Mail fraud has become increasingly important in recent years, because it often is the foundation of a RICO count.

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Racketeer Influenced and Corrupt Organizations Act Another federal statute that deals with fraud is the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO.12 The United States Congress enacted RICO in the early 1970s in an attempt to curb organized crime.

Judicial interpretation of RICO has led to much controversy in recent years. Some people contend that the effect of court opinions has been to extend the prohibition of RICO beyond Congress’s original intent. Today, all businesses, not just traditional organized crime, are subject to RICO.

To establish a RICO violation, the United States must prove that the (1) defendant received money or income (2) from a pattern of racketeering activity and (3) invested that money in an enterprise (business), (4) which is in interstate commerce or affects interstate commerce.

The second element is the key to proving a RICO violation. The term pattern means “two or more acts,” referred to as the predicate acts. Those acts must fall into the definition of a “racketeering activity.” The statute provides a list of state and federal crimes that are considered to be racketeering. Murder, kidnapping, extortion, and drug sales and transportation are examples of the state crimes included in the list. Mail fraud, wire fraud, “white slave traffic” or the transport of women across state boundaries for immoral purposes, securities fraud, and bribery are a few examples of the federal crimes included. Mail fraud is often the basis of a RICO violation, because the mails are often used by such enterprises.

For example, the Supreme Court announced in a 1994 decision that RICO could apply to a coalition of antiabortion groups that were alleged to have conspired, through a pattern of racketeering, to shut down abortion clinics.13 In that case, extortion, including alleged threats of assault, was used to satisfy this element.

Violation of RICO can result in serious criminal penalties. In addition, victims of such activity may sue civilly and receive treble damages, costs, and attorney fees. RICO also provides for forfeiture of property in criminal proceedings. Forfeiture is the taking of property and money of a defendant by the government. Many crimes have forfeiture provisions. A forfeiture is not the same as a fine. Forfeitures and fines are both levied as punishment, but the focus of a fine is generally to hurt a defendant’s pocketbook. Forfeitures are specifically aimed at getting the property or money connected to the crime for which the individual was convicted. So, in a RICO situation, a convicted party could stand to lose the enterprise itself, as well as all profits from that activity.

However, many aspects of civil RICO are identical to criminal RICO. One such aspect is the pattern requirement. Whether the case is civil or criminal, a pat- tern of racketeering must be proven. The United States Supreme Court addressed the pattern question because the various appellate courts of the United States were divided on how to define that phrase. In H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), the Supreme Court defined a pattern as more than one predicate act that are related to one another and the facts pose a threat of continued racketeering activity. H.J. is also a good illustration of how “legitimate businesses” are subject to RICO.

racketeer influenced and corrupt organizations act

■ (19 U.S.C. 1961). A

broadly applied 1970

federal law that creates

certain “racketeering

offenses” that include

participation in various

criminal schemes and

conspiracies, and that

allows government seizure

of property acquired in

violation of the act.

forfeiture

■ A deprivation of money,

property, or rights, without

compensation, as a

consequence of a default or

the commission of a crime.

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Forgery Another crime related to fraud is forgery. Forgery is the (1) making of (2) false documents (or the alteration of existing documents making them false) (3) and passing the document (4) to another (5) with an intent to defraud.

The purpose of forgery statutes is both to prevent fraud and to preserve the value of written instruments. These functions are important because if forgery were to be- come common, people would no longer trust commercial documents, such as checks and contracts. The effect that would have on commerce is obvious.

The actus reus of forgery is the making of the document. That involves the actual writing and drafting of the document, as well as passing the document (uttering) to a potential victim. The mens rea of forgery is knowledge of the falsity of the document and an intent to defraud.

In many jurisdictions, forgery and uttering are separate crimes. In those states one must only make the false instrument and possess an intent to defraud. The defendant need not present the document (utter) to the victim. That act, when accompanied with an intent to defraud, is the crime of uttering.

Receiving Stolen Property Not only is it a crime to steal another’s property, but it is also a crime to receive property that one knows is stolen, if the intent is to keep that property. In essence, one who buys or receives as a gift property that is known to be stolen is an accessory (after the fact) to the theft. Although the law applies to anyone who violates its prohibitions, the primary focus of law enforcement is fences, people who purchase stolen property with the intent of reselling the property for a profit. They act as the retailers of stolen property, with the thieves acting as suppliers.

The elements of receiving stolen property are (1) receiving property (2) that has been stolen (3) with knowledge of its stolen character (4) with an intent to deprive the owner of the property.

Receipt of the property may be shown by showing either actual possession or con- structive possession of the property. Constructive possession occurs any time the de- fendant has control over the property, even though the defendant does not have actual possession. For example, if one makes arrangements for stolen property to be delivered to one’s home, there is receipt once the property is in the house, even if the defendant was not present when the property was delivered. Receiving includes not only pur- chases of stolen property but also other transfers, such as gifts.

The property in question must have been stolen. In this context, stolen property includes that property acquired from larcenies, robberies, embezzlement, extortion, false pretenses, and similar crimes.

The final two elements deal with the mens rea of the crime of receiving stolen property. It is necessary that the defendant knew of the property’s stolen character at the time of acquiring the property. Actual knowledge that the property was stolen is required. However, if it can be proven that the defendant had a subjective belief that the goods were stolen, but lacked absolute proof of that fact, the crime has still been

forgery

■ Making a fake document

(or altering a real one) with

intent to commit a fraud.

receiving stolen property

■ The criminal offense

of getting or concealing

property known to be

stolen by another.

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156 Part i Criminal Law

committed. The fact that a reasonable person would have known that the property was stolen is not enough to convict for receiving stolen property. If persons receive property under a bona fide belief that they have claim to the property, they are not guilty of receiving stolen property, even though that belief was unfounded.

The last element requires that the receiver of the property intends to deprive the owner of the property. Of course, if a defendant intends to keep the property, then this requirement is met. The language of the crime is broader, however, and includes any intent to deprive the owner of the use, ownership, or possession of the property. Thus, if one receives the property intending to destroy it or to give it as a gift, this element has been satisfied.

Not only do the states prohibit receiving stolen property, but the federal govern- ment also makes it a crime to receive stolen property that has traveled in interstate com- merce or to receive stolen property while on lands controlled by the United States.14

Robbery The material elements of robbery are (1) a trespassory taking (2) and carrying away (asportation) (3) of personal property (4) from another’s person or presence (5) using either force or threat (6) with an intent to steal the property.

Robbery is actually a type of assault mixed with a type of larceny. Because of the immediate danger created by the crime of robbery, it is punished more severely than either larceny or simple assault. Robbery was a crime under the common law and is a statutory crime in all states today.

The elements of trespassory taking—asportation, intent to steal, and that the prop- erty belongs to another—are the same as for larceny. However, robbery also requires that the property be taken from the victim’s person or presence. So property taken from another’s hands, off another’s body, or from another’s clothing is taken from the person. Property that is taken from another’s presence, but not from the person, also qualifies. For example, if a bank robber orders a teller to stand back while the thief empties the cash drawer, there has been a robbery. The states differ in their definitions of “from another’s presence,” but it is generally held that property is in a victim’s presence any time the victim is in control of the property. This is true in the bank robbery example, as the teller was exercising control over the cash drawer at the time of the robbery.

It is also necessary that the crime be committed with the use of force or threat. This element is the feature that most distinguishes robbery from larceny. As far as force is con- cerned, if any force is used beyond what is necessary to simply take the property, there is robbery. For example, it is larceny, not robbery, if a pickpocket steals a wallet free of the owner’s knowledge. Only the force necessary to take the wallet was used. It is robbery, however, if the victim catches the pickpocket, and an altercation ensues over possession of the wallet. The same result is true when dealing with purse snatchers. If the snatcher makes a clean grab and gets away without an altercation, it is larceny from the person. If the victim grabs the bag and fights to keep it, then it is robbery. A threat of force may also satisfy this requirement. So, if the robber states to the victim, “Give me your wallet or I’ll blow your head off,” there is a robbery, even though there was no physical contact.

robbery

■ The illegal taking of

property from the person

of another by using force

or threat of force.

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Chapter 5: Crimes Against Property and Habitation 157

In most jurisdictions, the threatened harm must be immediate; threats of future harm are not adequate. It is also possible that the threat will be to someone else, such as a family member. The thief who holds a man’s wife and threatens to harm her if the man does not give up his money is not free from the charge of robbery just because the person giving up the money is not the one threatened.

The mens rea of robbery is the specific intent to take the property and deprive the owner of it. As with the other theft crimes, a good-faith, but incorrect, claim of right to the property is a defense. In Richardson v. United States, 403 F.2d 574 (D.C. Cir. 1968), a defendant’s claim of right to money was a gambling debt. The trial court did not permit the illegal debt to be used as a defense, but the appellate court reversed. It stated in its opinion that:

The government’s position seems to be that no instruction on a claim of right is necessary unless the defendant had a legally enforceable right to the property he took. But specific intent depends upon a state of mind, not upon a legal fact. If the jury finds that the defendant believed himself entitled to the money, it cannot properly find that he had the requisite specific intent for robbery.

Robbery is a crime pursuant to state law, and the United States has also prohibited certain robberies. Robbery of a federally insured bank is an example.15

Robbery is usually, if not always, graded. Robbery is graded higher if it results in serious injury to the victim or is committed using a deadly weapon.

Extortion Extortion is more commonly known as blackmail. Extortion is similar to robbery because both acts involve stealing money under threat. However, the threat in a robbery must be of immediate harm. Extortion involves a threat of future harm. At common law, extortion applied only against public officers. Today, extortion is much broader. The elements of extortion are (1) the taking or acquisition of property (2) of another (3) using a threat (4) with an intent to steal the property. In a few jurisdictions, the

extortion

■ To compel, force, or

coerce; for example, to get

a confession by depriving

a person of food and water.

To get something by illegal

threats of harm to person,

property, or reputation. The

process is called extortion.

CrIME In THE unITED sTATEs

Robbery is defined as the “taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear.” During 2011, there 354,396 robberies were reported under this definition. The number of robberies decreased 21% from 2007.

Source: Uniform Crime Reports, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

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158 Part i Criminal Law

extortionist must actually receive the property, whereas others require only that the threat be made.

A threat of future physical harm satisfies the threat element, as do threats to injure another’s reputation, business, financial status, or family relationship. As in the case of robbery, the threat may be directed at one person and the demand for property made on another. For example, if a thief states to John, “Give me $100,000 or I will kill your wife,” he is an extortionist, even though he has not threatened John.

The threatened conduct itself need not be illegal to be extortion. For example, if Stacy tells Lisa that she is going to inform the authorities of Lisa’s involvement in illegal drug trade unless Lisa pays her $10,000, she is an extortionist, even though informing the police of the activity is not only legal but is encouraged by society.

The federal government has made it a crime for federal officers to extort the pub- lic, to be involved in an extortion that interferes with interstate commerce, and to extort another by threatening to expose a violation of federal law.

The Dioguardi case deals with extortion in the labor relations area. In most situa- tions it is proper for unions and employees to threaten to picket an employer. In this case the threats were not part of usual labor–management relations; they were made with the purpose of extorting corporate money. Accordingly, the threats were found to be extortion, not protected labor activity.

The Appellate Division has reversed defendants’ convictions for extortion and conspiracy to commit extortion, dismissed the indictment, and discharged them from custody. In addition to the conspiracy count, the indictment charged defendants with ex- torting $4,700 from the officers of two corporations. Said corporations were nonunion, conducted a wholesale stationery and office supply business in Manhattan, did an annual business of several million dollars, and their stock was wholly owned by a fam- ily named Kerin. Anthony Kerin, Sr., president and “boss” of the Kerin companies, made all the impor- tant corporate decisions. The other two corporate of- ficers were his son Kerin, Jr., and one Jack Shumann.

Defendant McNamara, the alleged “front man” in the extortive scheme, was an official of Team- ster’s Local 295 and 808, as well as a member of the Teamster’s Joint Council. Defendant Dioguardi,

the immediate beneficiary of the payments and the alleged power behind the scene, was sole officer of Equitable Research Associates, Inc.—a publishing house, according to its certificate of incorporation, a public relations concern, according to its bank ac- count and the Yellow Pages of the telephone direc- tory, a labor statistics concern, according to its office secretary and sole employee, and a firm of labor consultants, according to its business card. . . .

[During late 1955 and early 1956 various unions were attempting to unionize Kerin’s business. The two primary unions involved in this attempt were both locals of the Teamsters. Eventually, one union began picketing the business while the other was on the premises handing out literature.]

The appearance of the picket line—which truck drivers from two companies refused to cross— thoroughly alarmed the Kerin officers, since they

PEOPLE V. DIOGUARDI 8 N.Y.2d 260, 203 N.Y.S.2d 870 (1960)

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Chapter 5: Crimes Against Property and Habitation 159

PEOPLE V. DIOGUARDI (continued)

were in an “extremely competitive business,” and a cessation of incoming or outgoing truck deliveries for as short a period as two weeks would effectively force them out of business.

■ ■ ■

McNamara assured Kerin, Sr. that his troubles could be ended, and would be, if he did three things: (1) “joined up” with McNamara’s local 295, (2) paid $3,500 to Equitable to defray the “out-of-pocket” expenses incurred by the various unions that had sought to organize the companies, and (3) retained Equitable as labor consultant at $100 per month for each company for the period of the collective bargaining contract. . . . McNamara repeatedly as- sured Kerin, Sr. that the picketing would stop im- mediately and the companies would be guaranteed labor peace if his program were accepted.

Kerin, Sr., stated that he was not adverse to having his employees organized by local 295, if it was a good honest union, and that he could “accept

the idea of a hundred dollars a month as a retainer fee for labor counsel and advise.” He protested against the proposed payment of $3,500, however, as an “extraordinary charge” that sounded “like a holdup,” to which McNamara replied: “It may seem that way to you, Mr. Kerin, but that is the amount of money that these unions that have sought to organize you . . . have expended, and if we are going to avoid further trouble and further difficul- ties, it is my suggestion that you pay that to the Equitable Associates.”

■ ■ ■

Upon the proof in this record, a jury could prop- erly conclude that defendants were guilty of extor- tion—cleverly conceived and subtly executed, but extortion nonetheless. The essence of the crime is obtaining property by a wrongful use of fear, induced by a threat to do an unlawful injury. It is well-settled law in this State that fear of economic loss or harm satisfies the ingredient of fear necessary to the crime.

Consolidated Theft Statutes The distinctions among the three common-law crimes of theft, larceny, embezzle- ment, and false pretenses are often hard to draw. This fact, matched with the belief that there is no substantive difference between stealing by fraud or by quick use of the hands, has led many jurisdictions to do away with the common-law crimes of larceny, false pretenses, and embezzlement and to replace them with a single crime named theft. Exactly what crimes are included in such statutes differs, but larceny, false pretenses, and embezzlement are always included. Many jurisdictions also add one or more of the following: fraudulent checks, receiving stolen property, and extortion.

These statutes often use the language of the common law in defining theft. For example, Florida’s statute reads:

A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom or Appropriate the property to his own use or to the use of any person not entitled thereto.16

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160 Part i Criminal Law

This statute includes the three common-law theft crimes. The primary change of consolidated theft statutes is that prosecutors no longer need to charge which specific crime has occurred. At trial, if the jury decides that a defendant has committed a lar- ceny and not an embezzlement, they can convict. At common law, if the defendant was charged with embezzlement, not larceny, the jury would be forced to acquit if they determined that the defendant committed larceny rather than embezzlement.

Robbery is usually not included in consolidated theft statutes because of its signifi- cant threat of harm. Consolidation usually includes only misappropriations of property that do not pose serious risks to life.

Of course, those crimes that are included in consolidation statutes are not always punished equally. Grading of such offenses based on the amount of property appropri- ated, the nature of the theft, and the type of property stolen is common.

Identity Theft It is possible to steal a person’s identity as well as a person’s property. The advent of the computer has made identity theft more common. Identity theft occurs whenever an individual uses a victim’s name, social security number, e-mail address, or other iden- tifying items in an effort to represent himself or herself as the victim. The mens rea of most identity theft statutes is an intention either to gain something of value through the deceit or to commit any other crime. This is the text of the Washington identity theft statute:

RCW 9.35.020 Identity theft.

(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.

(2) (a) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute identity theft in the first degree. Identity theft in the first degree is a class B felony.

(b) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony.

(3) A person who violates this section is liable for civil damages of five hundred dol- lars or actual damages, whichever is greater, including costs to repair the victim’s credit record, and reasonable attorneys’ fees as determined by the court.

(4) In a proceeding under this section, the crime will be considered to have been committed in any locality where the person whose means of identification or

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174

CHAPTER 6 Chapter Outline Defining a “Crime Against the Public” Crimes Against Public Morality

Prostitution and Solicitation Deviate Sexual Conduct Marriage, Contraception, and Abortion Indecent Exposure and Lewdness Obscenity Regulating the Internet

Crimes Against the Public Order

Riot and Unlawful Assembly Disturbing the Peace Incitement/Advocacy of Unlawful

Conduct Threats Vagrancy and Panhandling Crimes Involving Firearms Drug and Alcohol Crimes

Crimes Against the Administration of Government

Perjury Bribery Tax Crimes Obstruction of Justice Contempt

Crimes Against Sovereignty and Security

Treason Sedition and Espionage Terrorism

Crimes Against the Environment

Clean Water Act Clean Air Act Comprehensive Environmental

Response, Compensation, and Liability Act

Resource Conservation and Recovery Act

Occupational Safety and Health Act Toxic Substances Control Act Federal Insecticide, Fungicide, and

Rodenticide Act Emergency Planning and Community

Right-to-Know Act Endangered Species Act Marine Mammal Protection Act

Ethical Considerations: The Special Obligations of Prosecutors

CRimEs AgAinsT THE PubliC

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Chapter 6: Crimes Against the Public 175

Chapter Objectives

After completing this chapter, you should be able to

• describe historic and contemporary crimes against the public, including crimes against the public order, against the administration of government, against public morality, and against the environment.

• critically examine and discuss the laws of terrorism, especially those laws enacted in response to the September 11, 2001, attacks on the United States.

Defining a “Crime against the PubliC” Chapters 4 and 5 were concerned with crimes that victimize individuals or entities, such as corporations and other business organizations. This chapter examines crimes that do not have individual victims. These are crimes involving the public welfare, social order, and society’s morals. Many, if not most, of these crimes are malum prohi- bitum in nature, not malum in se.

Historically religion has played a role in the “criminalization” of “victimless” crimes. Of course, religious groups do not dictate such policy—this would violate the First Amendment’s Establishment Clause. Religion does, however, influence the moral values of the members of a society. In the United States this influence is pre- dominantly Christian. This is the reason that some acts that directly harm no one are prohibited.

Some critics call for an end to “victimless crimes.” Despite this opposition, many victimless crimes exist and are likely to continue to be prohibited. However, in a de- mocracy such as the United States, it is important to avoid an unwarranted infringe- ment of civil liberties. The more a law is premised upon a moral judgement, the greater the scrutiny of, and reasons justifying, such laws should be.

Some of the crimes discussed here bear directly upon the administration of govern- ment and justice and less upon moral determinations. For example, contempt of court is a crime against the public, and the premise of its prohibition is the theory that if society punishes offenders, others will comply with court orders, and the administra- tion of justice will be enhanced. Prostitution is an example of a crime that is prohibited more for moral reasons than any other.

The crimes included in this chapter have been divided into five subsections: crimes against public morality; crimes against the public order; crimes against the administra- tion of government; crimes against sovereignty and security; and crimes against the environment.

• explain the tension between national security and freedom and how the war on terror confounds the historic distinction between the law of war and criminal law

• explain what role that morality has, and what you believe it should play, in penal law.

• identify the material facts and legal issues in one-third of the cases you read and describe the court’s analyses and conclusions in the cases.

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176 Part i Criminal Law

Crimes against PubliC morality Prostitution and Solicitation Often said to be the oldest profession, prostitution is prohibited in every state except Nevada, where each county is given the authority to determine whether it should be permitted.

Prostitution is defined as (1) providing (2) sexual services (3) in exchange for compensation. In a few states, only intercourse is included in the definition of sexual services. In most states, however, sexual services include sodomy, fellatio, cunnilingus, and the touching of another’s genitals. The Model Penal Code includes homosexual and other deviate sexual conduct in its definition of sexual activity.1

The service must be provided in exchange for compensation. The person who is sexually promiscuous, but unpaid, goes unpunished. Compensation normally means money, but it can come in any form. Thus, the prostitute who accepts legal services from a lawyer in exchange for sexual services has received compensation. Where prosti- tution is illegal, it is common for prostitutes to use businesses, such as massage parlors and escort services, as fronts.

Solicitation is a related crime. Any person who engages in selling sex, buying sex, or attempting to buy sex is guilty of solicitation. Note that a prostitute may be guilty of both solicitation and prostitution, if the prostitute makes the first contact with the buyer. There need not be the actual sale of sex for solicitation—only an attempt to sell sexual services. The clients of prostitutes, when prosecuted, are charged with solicitation.

The Model Penal Code states that “[a] person commits a violation if he hires a prostitute to engage in sexual activity with him, or if he enters or remains in a house of prostitution for the purpose of engaging in sexual activity.”2

Those who promote prostitution (pimps) are usually punished more severely than prostitutes and customers. The Model Penal Code makes knowingly promoting pros- titution a felony of the third degree if a child under 16 years of age is prostituted; the defendant’s wife, child, or other ward is prostituted; the defendant forces or encourages another to engage in prostitution; or the defendant owns, controls, or manages a house of prostitution. In all other cases promotion is a misdemeanor.

Nearly all sex-for-hire cases fall under state jurisdiction. However, the federal govern- ment may be involved in prosecution when a prostitute is transported in interstate com- merce, or any other person is transported in interstate commerce for an immoral purpose.3

Deviate Sexual Conduct Rape and related crimes were discussed in Chapter 4. That chapter focused on sexual behavior that results in harm to a victim. This discussion is different, as there is usually no victim other than society as a whole. Deviate sexual conduct has many definitions, but most states include fellatio, cunnilingus, anal sex, and all homosexual activity within the grasp of their deviate sexual statutes. Therefore, consenting adults, married or not, may be prosecuted for participating in such sexual activity under many older statutes.

The foundation of the prohibition of sodomy and related acts is morality. Adherents of many religions, including Christianity, believe that all sex other than vaginal intercourse

prostitution

■ A person offering her

(in most states, his or her)

body for sexual purposes

in exchange for money.

A crime in most states.

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Chapter 6: Crimes Against the Public 177

Justice Kennedy delivered the opinion of the Court. Liberty protects the person from unwarranted

government intrusions into a dwelling or other pri- vate places. In our tradition the State is not omni- present in the home. And there are other spheres of

our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The

LAWRENCE V. TEXAS 539 U.S. 558 (2003)

between a man and woman is deviate. The reality is that many, if not most, people engage in sex that satisfies the definition of deviate sex. For this reason, many people argue that such acts are normal and should not be prohibited. Others argue that it does not matter if the behavior is normal or deviate—that sex between two consenting adults is private and involves no victims and, as such, is of no concern of the government. Regardless such laws continue to exist. Further, they have survived constitutional challenges in many instances.

Despite continued prohibition of sodomy, and related acts, in many states, the laws are seldom enforced. One reason is that law enforcement officials have shown a reluctance to enforce such laws, often because crimes perceived as more serious are time-demanding and leave little manpower and resources to enforce victimless crimes. In addition, there simply is the problem of discovering violations. Most sexual conduct occurs privately, and thus the police rarely discover violations independently. Of course, those who participate in prohibited sexual conduct are not likely to report their sex partners’ acts to law enforce- ment. But it is possible for officers to discover violations, and several cases where it has happened have resulted in arrests, convictions, and appellate review.

In 1982, a local police officer discovered Michael Hardwick engaged in consensual oral sex with another man in Hardwick’s bedroom. The officer was in the house to serve a warrant on Hardwick. The officer arrested both men for violating Georgia’s sodomy statute. Although the prosecutor declined to file charges, Hardwick sued the Georgia attorney general, seeking an order of the court enjoining enforcement of the sodomy law. The case made its way to the Supreme Court of the United States, where the law was upheld. Hardwick’s theory was that the right to privacy, found implicit in the Fourteenth Amendment’s due process guarantee, shielded private consensual sexual conduct from governmental regulation. The Court rejected this argument, holding that the nation’s long moral history of revulsion and prohibition of same-sex sodomy outweighed Hardwick’s privacy concerns. The decision of the Court was 5–4. Justice Powell voted with the majority, and after his retirement he stated that he regretted his vote in the case. This is not the end of the story, however. In 1998, the Georgia Supreme Court found the statute to be violative of the privacy protections in the Georgia Constitution.4 Then, the United State Supreme Court revisited the issue in Lawrence v. Texas.

(continued)

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178 Part i Criminal Law

LAWRENCE V. TEXAS (continued)

instant case involves liberty of the person both in its spatial and more transcendent dimensions.

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons dis- turbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Law- rence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: “A person commits an offense if he engages in devi- ate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual inter- course” as follows:

“(A) any contact between any part of the genitals of one

person and the mouth or anus of another person; or

“(B) the penetration of the genitals or the anus of an-

other person with an object.” § 21.01(1).

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They chal- lenged the statute as a violation of the Equal Protec- tion Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. . . . [The defendant lost on appeal. The appellate court relied on Bowers v. Hardwick in ana- lyzing the federal issue.]

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental

right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws in- volved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual be- havior, and in the most private of places, the home. The statutes do seek to control a personal relation- ship that, whether or not entitled to formal recogni- tion in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the mean- ing of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one el- ement in a personal bond that is more enduring. The liberty protected by the Constitution allows homo- sexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have an- cient roots.” In academic writings, and in many of

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the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. We need not enter this debate in the attempt to reach a definitive his- torical judgement, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws di- rected at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibi- tions of sodomy derived from the English criminal laws passed in the first instance by the Reforma- tion Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as crimi- nalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47–50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late nineteenth century. See, e.g., J. Katz, The In- vention of Heterosexuality 10 (1995); J. D’Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed

at homosexuals as such but instead sought to pro- hibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual con- duct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecu- tions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, su- pra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, be- cause the partner was considered an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal

LAWRENCE V. TEXAS (continued)

(continued)

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LAWRENCE V. TEXAS (continued)

Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of ho- mosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been peri- ods in which there was public criticism of homosexu- als as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880–1995 are not always clear in the details, but a significant number involved conduct in a public place. It was not until the 1970s that any State singled out same-sex relations for criminal prosecu- tion, and only nine States have done so. . . . Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. . . .

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral.

The condemnation has been shaped by religious beliefs, conceptions of right and acceptable be- havior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethi- cal and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the ma- jority may use the power of the State to enforce these views on the whole society through op- eration of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code. . . .

In our own constitutional system the deficien- cies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct refer- enced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homo- sexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosex- ual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. . . .

Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional pro- tection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the re- spect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

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“These matters, involving the most intimate and personal choices a person may make in a life- time, choices central to personal dignity and au- tonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of hu- man life. Beliefs about these matters could not de- fine the attributes of personhood were they formed under compulsion of the State.”

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legis- lation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were ho- mosexuals, lesbians, or bisexual either by “ori- entation, conduct, practices or relationships . . . and deprived them of protection under state an- tidiscrimination laws. We concluded that the pro- vision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. . . .

The foundations of Bowers have sustained seri- ous erosion from our recent decisions in Casey and Romer. When our precedent has been thus weak- ened, criticism from other sources is of greater sig- nificance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its his- torical assumptions. . . The courts of five different States have declined to follow it in interpreting pro- visions in their own state constitutions parallel to the Due Process Clause. . . .

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. . . . Other nations, too, have taken action consistent with an affirmation of the protected right of ho- mosexual adults to engage in intimate, consen- sual conduct.

The doctrine of stare decisis is essential to the respect accorded to the judgements of the Court and to the stability of the law. It is not, however, an inexorable command. . . .

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct with- out intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. . . .

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Marriage, Contraception, and Abortion Marriage is a state-coopted institution. States regulate marriage in a number of ways. All states specify how many people may marry, two in each union, who may marry (no close relatives), who has the authority to perform the marriage ceremony, when couples may marry (some states require a waiting period and/or blood tests), and the payment of a fee for the issuance of a license. Additionally, states and the federal government have built marriage into their tax schemes. There are limits, however, to the regulation of mar- riage. For example, for many years states prohibited and criminalized marriages between people of different races. As you will read in Chapter 9, the Supreme Court invalidated these laws as violating one’s right to liberty, as protected by due process. Similarly, crimi- nal prohibitions of the use of contraceptives and early term abortions were invalidated.

Due process and equal protection are evolving values and rights. Although a fed- eralism and not a deviate sexual conduct case, the Supreme Court’s 2013 decision United States v. Windsor, which invalidated a provision of the Defense of Marriage Act, contains sweeping equal protection and due process language that can be interpreted as foreshadowing a decision securing a right to same sex marriage in the near future. These topics are discussed more fully in Chapter 9.

Indecent Exposure and Lewdness Indecent exposure, or the exposure of one’s “private parts” in public, was a common-law misdemeanor. Today, the crime is usually criminalized by state statute or local ordinance.

Most indecent exposure laws require (1) an intentional exposure (2) of one’s pri- vate parts (3) in a public place. In some jurisdictions, it is required that the exposure be done in an “offensive manner.”

In 1991, the United States Supreme Court examined a public nudity statute in the context of nude barroom dancing. In Barnes v. Glen Theater, Inc.,5 the Court upheld an Indiana statute that required dancers to wear pasties and G-strings. Although the court found that nude dancing was expressive conduct, it determined that states may require the dancers to cover their genitals. The court did say that erotic performances were protected by the First Amendment, provided the dancers wear a scant amount of clothing. The Court upheld the law because it determined that the state’s objective was not to regulate expression, but to regulate for order and morality. Further, the Court held that the interference with expression was minimal.

The Model Penal Code prohibits public indecency. The Code goes further with a provision proscribing all lewd acts that the defendant knows are likely to be observed by others who would be “affronted or alarmed” by the acts.6

Obscenity

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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This is the First Amendment to the U.S. Constitution. Most, if not all, states have a similar provision in their constitutions. The italicized portion represents the only protection of speech in the Constitution. Because it is brief and broad, it is depen- dent upon a great amount of interpretation to give it meaning. Also, because of its brevity and broadness, courts often interpret it differently. Even the Supreme Court has changed its interpretation of the clause, in particular areas, on several occasions. Freedom of speech encompasses far more than will be examined in this chapter. What will be discussed here is the extent of governmental power to regulate conduct that it deems to be indecent. Specifically, this section addresses sexually explicit materials, including films, books, and erotic dancing. It is well established that the term speech, as used in the First Amendment, means more than spoken utterances. It includes all forms of expression.

Both the federal and state governments regulate conduct, speech, books, movies, and other forms of expression that are believed to be “obscene.” State governments are the most involved with regulating obscenity, due to general police power (the power to regulate for the health, welfare, and safety of citizens). However, the federal gov- ernment is also involved; for example, it has criminalized sending obscene materials through the mail.7

Not all indecencies may be criminalized. Simply because something strikes one person as indecent does not mean that it should be prohibited. People have differing values, and to allow governments to prohibit all conduct (or other things) that is found offensive by some member of society would be to allow our government to criminalize all aspects of life. In addition, people perceive things differently. For example, in 1990 the Cincinnati Arts Center was charged with obscenity for displaying photographs taken by a respected artist, Robert Mapplethorpe. Included in the photos were depic- tions of nude children. The prosecutor contended that the pictures were obscene. A jury did not agree. The Arts Center and its director were acquitted, and many of the jurors commented that the testimony of art experts convinced them that the pictures had serious artistic value and were not obscene.8

It is important that the First Amendment be flexible and tolerant of new ideas and methods of expression. Simply because the majority of citizens would not see value in a form of expression does not mean it has no value. If the opposite were true, then expression aimed at particular minority groups could be censored. This is not to say that there is no limit on the freedom of expression. When considering sexually oriented expression, that line is drawn when the expression becomes obscene.9

Obscenity has proven to be an elusive concept for the Supreme Court. Through a series of decisions, from 1957 to the present, the Court has attempted to define obscenity. The famous quotation from Justice Potter Stewart -“I shall not today attempt further to define [obscenity]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”—Jacobellis v. Ohio,10 is a testament to the difficulty in defining such a concept. It also reflects what many people believe—that they may not be able to define obscenity, but they recognize it when they see it.

In Roth v. United States,11 it was held that because it lacks redeeming social impor- tance, obscenity is not protected by the First Amendment. The Court then established

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a test for determining whether something was obscene, and, as such, not protected by the First Amendment. That test was “whether to the average person, applying contem- porary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” In addition, the material had to be “utterly without re- deeming social value.” Simply because “literature is dismally unpleasant, uncouth, and tawdry is not enough to make it ‘obscene.’”12

In 1973 the Supreme Court reexamined the Roth obscenity test in Miller v. California.13 In Miller the Court rejected the requirement that the material be “utterly without redeeming social value” and lowered the standard to lacking “serious literary, artistic, political, or scien- tific value.” The test under Miller has three parts:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest and

2. the work must depict or describe, in a patently offensive manner, sexual conduct specifically defined by the applicable state law, and

3. the work, when taken as a whole, must lack serious literary, artistic, political, or scientific value.

The Miller test makes it easier for states to regulate sexual materials. An “average person” has been equated with a reasonable person, as used in tort law.14 The material must appeal to “prurient interest.” Materials that have a tendency to excite a lustful, “shameful or morbid interest in nudity, sex or excretion” meet the prurient interest ele- ment.15 Material that provokes normal, healthy, sexual desires is not obscene because it does not appeal to prurient interest.16

The Court gave examples in Miller of “patently offensive” materials that included depictions or descriptions of “ultimate sex acts, normal or perverted, actual or simu- lated . . . of masturbation, excretory functions, and lewd exhibition of the genitals.”

One area where the states have substantially more power to regulate obscenity is when minors are involved. The Court has held that all child pornography is unprotected because of the special need to protect children from exploitation.17 Similarly, governments may prohibit the distribution and sale of erotic materials to minors, even if such materials are not obscene.18 Also, in Osborne v. Ohio,19 the Supreme Court held that a person may be convicted for possession of child pornography in the home. This is an exception to the general rule that a person may possess obscene material in the home.

As mentioned in Miller, governments may control the time, place, and manner of expression. Accordingly, certain restrictions may be valid that deal with expression in cer- tain places, such as establishments that sell alcohol. (Chapter 8 addresses constitutional defenses to criminal accusations and discusses other time, place, and manner issues.)

One place where the authority of the government to regulate sexually explicit ma- terials is lessened is in homes. In many respects, the law reflects the attitude that a “man’s home is his castle” and deserves special protection. Thus, the United States Supreme Court struck down the conviction of a man for possession of obscene materi- als in his home.20 However, as previously mentioned, a person is not privileged to pos- sess child pornography in the home.

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The Model Penal Code makes it a misdemeanor to knowingly or recklessly do any of the following:21

1. Sell, deliver, or provide (or offer to do one of the three) any obscene writing, picture, record, or other obscene representation.

2. Present or perform in an obscene play, dance, or other performance. 3. Publish or exhibit obscene materials. 4. Possess obscene materials for commercial purposes. 5. Sell or otherwise commercially distribute materials represented as obscene.

The Code presumes that anyone who distributes obscene materials in the course of business has done so knowingly or recklessly.

Material is considered obscene under the Code if “considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest, in nudity, sex, or excretion, and if in addition it goes substantially beyond customary lim- its of candor in describing or representing such matter.” Note that the Code’s definition is similar to the Supreme Court’s definition. The Code does add the requirement that the material go beyond “customary limits of candor.” The Code makes it an affirmative defense that the obscene material was possessed for governmental, scientific, educa- tional, or other justified causes. It also is not a crime for a person to give such materials to personal associates in noncommercial situations. The Code focuses on punishing commercial dissemination of obscene material.

Obscenity is a complex area of law. Many different criminal prohibitions exist throughout the states and federal government that focus on the sale, distribution, and possession of sexually oriented materials, performance of erotic dance, and public nu- dity. So long as minors are not involved, the activity is protected unless it is obscene. To determine whether pornography is obscene (hardcore), one must apply the three-part Miller test. The states are free to regulate if children are involved, either as participants in the erotic materials (or performance) or as buyers of erotic materials, even if the material is not obscene.

In 2010, the Supreme Court invalidated a federal statute that regulated films that depicted animal cruelty on First Amendment grounds.

[The federal statute in question] establishes a crimi- nal penalty of up to five years in prison for anyone who knowingly “creates, sells, or possesses a de- piction of animal cruelty,” if done “for commercial

gain” in interstate or foreign commerce. A depiction of “animal cruelty” is defined as one “in which a liv- ing animal is intentionally maimed, mutilated, tor- tured, wounded, or killed,” if that conduct violates

UNITED STATES V. STEVENS (559 U.S. 460 (2010)

(continued)

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federal or state law where “the creation, sale, or possession takes place.” In what is referred to as the “exceptions clause,” the law exempts from pro- hibition any depiction “that has serious religious, political, scientific, educational, journalistic, histori- cal, or artistic value.”

The legislative background of [the law] focused primarily on the interstate market for “crush vid- eos.” According to the House Committee Report on the bill, such videos feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. Crush videos often de- pict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.” Apparently these depictions “appeal to persons with a very spe- cific sexual fetish who find them sexually arousing or otherwise exciting.” The acts depicted in crush videos are typically prohibited by the animal cruelty laws en- acted by all 50 States and the District of Columbia. . . .

This case, however, involves an application of [the law] to depictions of animal fighting. Dogfight- ing, for example, is unlawful in all 50 States and the District of Columbia. . . .

Stevens moved to dismiss the indictment, ar- guing that [the law] is facially invalid under the First Amendment. The District Court denied the mo- tion. It held that the depictions subject to §48, like obscenity or child pornography, are categorically unprotected by the First Amendment. . . .

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amend- ment means that government has no power to re- strict expression because of its message, its ideas, its subject matter, or its content. . . .

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the

content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these tra- ditional limitations.” These “historic and traditional categories long familiar to the bar,”—including ob- scenity, defamation, fraud, incitement, and speech integral to criminal conduct,—are “well-defined and narrowly limited classes of speech, the pre- vention and punishment of which have never been thought to raise any Constitutional problem.”

The Government argues that “depictions of animal cruelty” should be added to the list. . . .

The Government contends that “historical evi- dence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Con- gress’s ‘legislative judgment that . . . depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’ and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered un- der a simple balancing test: “Whether a given cate- gory of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

As a free-floating test for First Amendment coverage, that sentence is startling and danger- ous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgement by the American people that the benefits of its restrictions on the Govern- ment outweigh the costs. . . .

When we have identified categories of speech as fully outside the protection of the First

UNITED STATES V. STEVENS (continued)

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Amendment, it has not been on the basis of a sim- ple cost-benefit analysis. In Ferber, for example, we classified child pornography as such a category. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as op- posed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this “bal- ance of competing interests” alone. We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.”

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. . . .

[The Court then found the law to be too broad. Not only could crush videos be prosecuted under the law, but bull fights, hunting, and other protected speech could as well.] Our construction of [the law] decides the constitutional question; the Govern- ment makes no effort to defend the constitutional- ity of [the law] as applied beyond crush videos and depictions of animal fighting. It argues that those

particular depictions are intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene), and that the ban on such speech is narrowly tailored to reinforce restrictions on the underlying conduct, prevent additional crime arising from the depictions, or safeguard public mores. But the Government nowhere attempts to extend these arguments to depictions of any other activities—depictions that are presumptively pro- tected by the First Amendment but that remain sub- ject to the criminal sanctions of [the law].

Nor does the Government seriously contest that the presumptively impermissible applications of [the law] (properly construed) far outnumber any permissible ones. However “growing” and “lucra- tive” the markets for crush videos and dogfighting depictions might be, they are dwarfed by the mar- ket for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of [the law]. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cru- elty would be constitutional. We hold only that [the law] is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

UNITED STATES V. STEVENS (continued)

Regulating the Internet

The ability of the World Wide Web to penetrate every home and community across the globe has both positive and negative implications—while it can be an invaluable source of information and means of communication, it can also override community values and standards, subjecting them to whatever more may or may not be found online. . . . [T]he Internet is a challenge to the sovereignty of civilized communities, States, and nations to decide what is appropriate and decent behavior.22

According to Internetworldstats.com, Internet use around the world exceeded 2.4 billion users in 2012. The greatest number of users are found in Asia, followed by Europe and North America. However, the greatest penetration is in North America, followed by Oceana/Australia and Europe. Evincing that the Internet is becoming a

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worldwide phenomenon, the greatest growth in users between 2000 and 2012 was in the Middle East, Africa, Latin America, and Asia. Some commentators believe it is reshaping the political identity of people all over the world. Others believe it is a great social equalizer, tearing down class, education, and economic barriers. Still others are concerned about the negative social impact the Internet may present. Many of the barriers that are being destroyed were in place to protect those individuals who are not capable or mature enough to protect themselves. To protect these people, state legislatures and Congress have acted to regulate the Internet.

Obscene and harmful information has been the primary source of regulation, al- though commercial transactions, gambling, and other subjects are also regulated. In 1998, 16 million children under the age of 18 were using the Internet. Over 6 million of the children using the Internet were under the age of 13. Simultaneous to the growth in child use of the Internet has been a growth in adult sites. In 1998, it was estimated that there were more than 30,000 adult sites on the Internet and that as much as 70 percent of all Web traffic was unsuitable for children.23 The first major national attempt to pro- tect children from adult-oriented information on the Internet was the Communications Decency Act of 1996.24 This statute limited the transmission of “obscene” and “indecent” materials to children. However, this statute was held unconstitutional by the Supreme Court in Reno v. ACLU (1997).25 “The Supreme Court held that the law was overbroad because it prohibited both protected speech (indecent materials) and unprotected speech (obscene materials).” Obscene material, as defined by Miller and other cases, may be regulated but indecent material may not. In addition, the Court found that the law was overbroad because it limited access, both adult and juvenile. While it is lawful to limit the access of children to indecent materials (even if not obscene), the law limited the access of everyone because under current technology there is not a way to create zones that children cannot enter. In real space, it is possible to create such zones. Adult book- stores, for example, are zones where children may not enter.

Congress attempted again to protect children from the dangers of the Internet in 1998 through the Child Online Protection Act.26 This law limited regulation to mate- rial that is harmful to minors. The law specifically incorporates the Miller test into its definition of what is prohibited. In a narrowly drafted decision, the Supreme Court upheld this law in 2002.27 The court made it clear, however, that other constitutional issues may need to be examined in an attempt to correct the error of the Communica- tions Decency Act. It remains to be seen if this law is constitutional.

In addition to shielding minors from adult content, Congress and the states have at- tempted to protect children from being used in sexually explicit films. While there is no question that the use of children can be criminalized, as can the possession of child pornog- raphy itself, modern technology has changed the landscape considerably. Today, it is pos- sible to have genuine photos of children and alter them to make it appear as if they are nude or engaged in sexual conduct. Photos of adults can be merged with those of children, and other computer graphic techniques can be employed to create virtual child pornography.

In the Child Pornography Prevention Act of 1996, Congress prohibited not only images of actual children in pornography but also “virtual” images created with the use of computers. As was true of the Communications Decency Act, the Supreme Court found the law to be contrary to First Amendment principles in Ashcroft v. Free Speech Coalition.

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We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 et seq., abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit im- ages that appear to depict minors but were pro- duced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The new technology, according to Congress, makes it possible to create realistic im- ages of children who do not exist. . . .

By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U.S. 747 (1982), which dis- tinguished child pornography from other sexually explicit speech because of the State’s interest in protecting the children exploited by the produc- tion process. As a general rule, pornography can be banned only if obscene, but under Ferber, pornog- raphy showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973). Ferber recognized that “[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” . . .

The principal question to be resolved, then, is whether the CPPA is constitutional where it pro- scribes a significant universe of speech that is nei- ther obscene under Miller nor child pornography under Ferber.

Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images

made using actual minors. 18 U.S.C. § 2252 (1994 ed.). The CPPA retains that prohibition at 18 U.S.C. § 2256(8)(A) and adds three other prohibited cat- egories of speech, of which the first, § 2256(8)(B), and the third, § 2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or pic- ture” that “is, or appears to be, of a minor engag- ing in sexually explicit conduct.” The prohibition on “any visual depiction” does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called “virtual child pornography,” which include computer-gen- erated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance paint- ing depicting a scene from classical mythology, a “picture” that “appears to be, of a minor engaging in sexually explicit conduct.” The statute also pro- hibits Hollywood movies, filmed without any child actors, if a jury believes an actor “appears to be” a minor engaging in “actual or simulated . . . sexual intercourse.” § 2256(2).

These images do not involve, let alone harm, any children in the production process; but Con- gress decided the materials threaten children in other, less direct, ways. Pedophiles might use the materials to encourage children to participate in sexual activity. “[A] child who is reluctant to en- gage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other chil- dren ‘having fun’ participating in such activity.” Congressional Findings, note (3) following § 2251. Furthermore, pedophiles might “whet their own sexual appetites” with the pornographic images, “thereby increasing the creation and distribution

ASHCROFT V. FREE SPEECH COALITION 535 U.S. 234 (2002)

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of child pornography and the sexual abuse and exploitation of actual children.” Under these ratio- nales, harm flows from the content of the images, not from the means of their production. In addi- tion, Congress identified another problem created by computer-generated images: Their existence can make it harder to prosecute pornographers who do use real minors. As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using ac- tual children. To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography.

Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real chil- dren and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.

Respondents do challenge § 2256(8)(D). Like the text of the “appears to be” provision, the sweep of this provision is quite broad. Section 2256(8)(D) defines child pornography to include any sexually explicit image that was “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct.” One Committee Report identified the provision as directed at sexually explicit images pandered as child pornography. (“This provision prevents child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual ac- tivity through the production or distribution of por- nographic material which is intentionally pandered

as child pornography”). The statute is not so limited in its reach, however, as it punishes even those possessors who took no part in pandering. Once a work has been described as child pornography, the taint remains on the speech in the hands of sub- sequent possessors, making possession unlawful even though the content otherwise would not be objectionable.

Fearing that the CPPA threatened the activities of its members, respondent Free Speech Coalition and others challenged the statute. . . .

The First Amendment commands, “Congress shall make no law . . . abridging the freedom of speech.” The government may violate this mandate in many ways, but a law imposing criminal penal- ties on protected speech is a stark example of speech suppression. The CPPA’s penalties are indeed severe. A first offender may be imprisoned for 15 years. § 2252A(b)(1). A repeat offender faces a prison sen- tence of not less than 5 years and not more than 30 years in prison. While even minor punishments can chill protected speech, this case provides a text- book example of why we permit facial challenges to statutes that burden expression. With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any ca- pacity, would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privi- leged sphere. Under this principle, the CPPA is un- constitutional on its face if it prohibits a substantial amount of protected expression. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. Congress also found that sur- rounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children.

ASHCROFT V. FREE SPEECH COALITION (continued)

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Congress may pass valid laws to protect chil- dren from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech. . . .

As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. . . .

The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea— that of teenagers engaging in sexual activity—that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. 18 U.S.C. § 2256(1). This is higher than the legal age for mar- riage in many States, as well as the age at which persons may consent to sexual relations.

Both themes—teenage sexual activity and the sexual abuse of children—have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 (“She hath not seen the change of fourteen years”). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pic- tures, some of which suggest that the teenagers con- summated their relationship. E.g., Romeo and Juliet (B. Luhrmann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabe- than audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

Contemporary movies pursue similar themes. Last year’s Academy Awards featured the movie,

Traffic, which was nominated for Best Picture. . . . The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. . . . In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audi- ence understands the act is not taking place, one character believes he is watching a teenage boy per- forming a sexual act on an older man.

Our society, like other cultures, has empathy and enduring fascination with the lives and desti- nies of the young. Art and literature express the vital interest we all have in the formative years we our- selves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we men- tion violate the CPPA, they explore themes within the wide sweep of the statute’s prohibitions. If these films, or hundreds of others of lesser note that ex- plore those subjects, contain a single graphic depic- tion of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work’s redeem- ing value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. For this reason, and the others we have noted, the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity.

[I]n Osborne v. Ohio, 495 U.S. 103 (1990), the Court ruled that these same interests justified a ban

ASHCROFT V. FREE SPEECH COALITION (continued)

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on the possession of pornography produced by us- ing children. “Given the importance of the State’s interest in protecting the victims of child pornogra- phy,” the State was justified in “attempting to stamp out this vice at all levels in the distribution chain.” . . . Osborne also noted the State’s interest in preventing child pornography from being used as an aid in the solicitation of minors. . . . The Court, however, an- chored its holding in the concern for the participants, those whom it called the “victims of child pornogra- phy.” . . . It did not suggest that, absent this concern, other governmental interests would suffice. . . .

In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “in- trinsically related” to the sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to actual instances of child abuse, . . . the causal link is contingent and in- direct. The CPPA, for reasons we have explored, is in- consistent with Miller and finds no support in Ferber. The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary be- cause pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited be- cause they can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, see Ginsberg v. New York, 390 U.S. 629 (1968), and it may enforce criminal penalties

for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. . . .

The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in ques- tion. The mere tendency of speech to encourage un- lawful acts is not a sufficient reason for banning it. . . .

The Government next argues that its objective of eliminating the market for pornography pro- duced using real children necessitates a prohibition on virtual images as well. Virtual images, the Gov- ernment contends, are indistinguishable from real ones; they are part of the same market and are of- ten exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were iden- tical to illegal child pornography, the illegal images would be driven from the market by the indistin- guishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.

In sum, § 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amend- ment. The provision abridges the freedom to en- gage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.

ASHCROFT V. FREE SPEECH COALITION (continued)

States also have laws regulating the Internet. Of course, these laws must be crafted to avoid First Amendment and state-law free speech barriers. Additionally, the inter- state character of the Internet can create jurisdictional problems for states. In American Library Association v. Pataki (S.D. N.Y. 1997),28 a New York statute that regulated the Internet in much the same manner as the federal Communications Decency Act

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Chapter 6: Crimes Against the Public 193

was invalidated not on First Amendment grounds but on jurisdictional grounds. The federal court that heard the case ruled that New York was without the authority to regulate conduct outside its borders. Congress responded to the Free Speech Coalition decision by enacting an amended version of the law that was invalidated. The new statute, known as PROTECT, criminalizes soliciting, distributing, promoting, or pre- senting images with the belief, or that is intended to cause another to believe, that they are depictions of minors. To avoid the overbreadth problem of Free Speech Coalition, PROTECT did not include a ban on all virtual child pornography. The Court found the subtle distinction between banning all virtual child pornography and those depic- tions intended to convince others that they are actual minors adequate to uphold the law in United States v. Williams.29

Due to the plethora of cases addressing pornography and obscenity, it is strongly recommended that thorough research be conducted. There is a good chance that prec- edent with similar facts may be found. Beware, however, that this is an issue that often leaves courts split. Be sure that the opinions you find reflect the law of your jurisdiction.

Crimes against the PubliC orDer Crimes against the public order are crimes that involve breaches of the peace. The phrase breaches of the peace refers to all crimes that involve disturbing the tranquility or order of society. Breaches of the peace as a crime has its roots in early English common law. In England, breaches of the peace by individuals were criminal, as were breaches by groups.

Three groups of breaches were recognized; all were punished as misdemeanors. If three or more people met with an intention of causing a disturbance, they committed the common-law offense of unlawful assembly. If the group took some action in an attempt to breach the peace, they were guilty of rout; if they were successful, the crime was riot.

Today, all jurisdictions prohibit breaches of the peace in some form by statute. The names of statutory crimes include disorderly conduct, unlawful assembly, riot, inciting violence, unlawful threat, and vagrancy.

Riot and Unlawful Assembly Most states now have legislation that prohibits groups of people from meeting with the purpose of committing an unlawful act or committing a lawful act in an unlawful man- ner. This crime may be named unlawful assembly or riot. A group, or “assembly,” is a specified minimum number of people, often three or five. Some jurisdictions continue to recognize the distinctions between unlawful assembly, rout, and riot.

The Model Penal Code recognizes two related crimes: riot and failure to disperse. Both crimes require an assembly of two or more persons who are behaving in a disor- derly manner. If the purpose of the assembly is to commit a crime (felony or misde- meanor), to coerce public officials to act or not act, or if a deadly weapon is used, then the crime is riot.30

breachs of the peace

■ A vague term for any

illegal public disturbance;

sometimes refers to the

offense known as “disorderly

conduct.” It is defined and

treated differently in different

states.

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Failure to disperse occurs when a law enforcement officer, or other official, orders the members of a group of three or more to disperse, and someone refuses. The disor- derly conduct that the assembly is engaged in must be “likely to cause substantial harm or serious inconvenience, annoyance, or alarm,” before an officer may order the group to disperse. This provision is included because the freedoms to associate and assemble are protected by the First Amendment to the U.S. Constitution, and such activity may be regulated only when it poses a threat to person, property, or society.

Most jurisdictions punish these crimes as misdemeanors. However, they may be elevated to felony if committed with a dangerous weapon, if someone is injured as a re- sult of the activity, or if law enforcement officers are obstructed from performing their duties. The Model Penal Code makes rioting a felony of the third degree and failure to disperse a misdemeanor.

Disturbing the Peace As mentioned, individuals may also commit crimes against the public order. Disturbing the peace is such a crime. This crime is also known as disorderly conduct, threat, exces- sive noise, and affray. In essence, any time the public order or tranquility is unreason- ably interrupted by an individual, disturbance of the peace has occurred. States may have one law that encompasses all such acts or separate statutes for each.

Disturbances may occur in hundreds of forms. One may disturb the peace by mak- ing loud noises in a residential area at midnight, by attempting to cause fights with oth- ers, or by encouraging others to engage in similar conduct. Statutes often also prohibit indecent language and gestures.

These statutes are often broadly worded and are vague. As such, they are often attacked as being unconstitutional. The defenses of overbreadth and vagueness are dis- cussed in Chapter 8 on defenses and are not covered here. One defense that will be examined is the First Amendment right to free speech and its relationship to offensive words and gestures.

As you have learned, the First Amendment protects all forms of expression. This protection prohibits government from making expression criminal. However, excep- tions to the First Amendment have been created. Words that have a likelihood of caus- ing a riot are such an exception. That is, even though the words are expression, they may be punished. The reason is obvious: riots lead to property damage, personal in- juries, and sometimes death. As such, the interest of the government to control such behavior outweighs the First Amendment interest.

The fighting words doctrine is another exception. The Supreme Court has de- fined fighting words as those that inflict injury, tend to incite an immediate breach of the peace, or by their nature will cause a violent reaction by a person who hears them.31 Laws that regulate speech that may be regulated, such as fighting words, must be drafted narrowly; that is, only the conduct intended must be prohibited. If a law is drawn so broadly that both fighting words and legitimate speech are criminalized, it is unconstitutional and void.

The defendant in the Witucki case was convicted of disorderly conduct. The court found that his speech was unprotected because he used fighting words.

fighting words

■ Speech that is not

protected by the First

Amendment to the U.S.

Constitution because it is

likely to cause violence by

the person to whom the

words are spoken.

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Chapter 6: Crimes Against the Public 195

On December 11, 1978, a Morrison County Court jury found defendant guilty of disorderly conduct in violation of Little Falls, Minnesota, Ordinances. . . .

At approximately 11:00 P.M. on September 19, 1978, defendant Edwin George Witucki and a few of his friends entered the West Side Bar in Little Falls, Minnesota. Just outside the building defendant found a cat which he carried into the building and placed on the bar. Pursuant to defendant’s request, one bartender served the cat some beef jerky and a shotglass of cream and served defendant a drink.

About five minutes later, the other bartender, Paula Erwin, told defendant to take the cat outside. He refused. She told him he was cut off from being served until the cat was removed. He responded, “I let you slip once too many times, I’m not going to let you slip again.” Erwin, for the third time, told de- fendant to remove the cat. He responded by saying, “Hey, Butch, I don’t have to take any of your crap.” She then turned to return to the other end of the bar, and Witucki called her a “black-haired witch,” a “cocksucker,” and a “son-of-a-bitch.”

When asked at trial about her reaction to the words, Erwin testified, “I didn’t care for them very well. It scared me. There was nothing I could do about it. There were no guys around so I thought the best thing for me to do, because I was really mad at the time, was just to walk away from him.” She also testified that calling the police or any sort of violent action on her part would not be wise or safe because he might wait for her outside after hours and because he was much larger than she and there were no men around to help her.

■ ■ ■

The question is, did defendant’s words in the circumstances in which they were uttered constitute “those personally abusive epithets which, when

addressed to the ordinary citizen, are as a matter of common knowledge, inherently likely to provoke violent reaction.” . . .

In In re S.L.J. the appellant was a fourteen-year- old girl who yelled “fuck you pigs” at two police of- ficers. . . . The court noted that although “no ordered society would condone the vulgar language” and al- though “her words were intended to, and did, arouse resentment in the officers, the constitution requires more before a person can be convicted for mere speech.” The court held that where the words were spoken in retreat by a small teenage girl who was between fifteen and thirty feet from the two police officers sitting in their squad car, “there was no rea- sonable likelihood that [the words] would tend to in- cite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person.

In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L. Ed. 2d 284 (1971), the defendant wore a jacket on which the words “Fuck the Draft” were plainly visible. The words were not directed against the person of any possibly offended person; they were directed against the draft.

The instant case is readily distinguishable from both In re S.L.J. and Cohen v. California. Unlike the defendant’s language in Cohen, Witucki’s language was directed at and was intended to be about a per- son, namely Erwin. The abusive language hurled by defendant at Erwin could readily be found by a jury to be inherently likely to incite violence. Defendant was not, as in Cohen, merely expressing a contro- versial political opinion in a vulgar way; he was di- rectly insulting and intimidating an innocent person.

■ ■ ■

The fact that the words used by appellant are vulgar, offensive, and insulting, and that their use is condemned by an overwhelming majority of citizens

CITY OF LITTLE FALLS V. EDWIN GEORGE WITUCKI 295 N.W.2d 243 (Minn. 1980)

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196 Part i Criminal Law

CITY OF LITTLE FALLS V. EDWIN GEORGE WITUCKI (continued)

does not make them punishable under the criminal statutes of this state unless they fall outside the pro- tection afforded to speech by the First Amendment.

■ ■ ■

Defendant’s speech in this case is not a “trifling and annoying instance of individual

distasteful abuse of a privilege.” He addressed such abusive, vulgar, insulting and obscene lan- guage toward the bartender that his language was properly found to be within the fighting words category of unprotected speech. . . . [Conviction affirmed.]

Incitement/Advocacy of Unlawful Conduct Whenever one person, acting independently, encourages another to commit an unlawful act or intends to cause a riot, the crimes of incitement of unlawful behavior or incitement of riot may be charged. Unlike riot, which requires a group, one person may commit this crime. Unlike disturbing the peace, it may be committed in a peace- ful manner.

However, because the First Amendment applies, such statutes must be narrowly drawn. In fact, only speech that creates a clear and present danger may be controlled. The United States Supreme Court has said that “incitement of imminent lawless ac- tion” may be regulated.32 Anything less may not be regulated. Hence, merely advocat- ing unlawful conduct in the abstract is protected. Advocating future unlawful conduct is also protected, as it poses no imminent threat.

Threats Finally, in the speech arena, threats are addressed. Threat statutes may make threaten- ing individuals, groups, or even property, criminal. Threats to harm people are similar to assaults. However, threat is broader, as it often protects property and the people at large. The purpose of threat statutes is to preserve public order, and the purpose of as- sault statutes is to protect individuals.

For example, if a defendant were to call in a bomb threat to a public office, there would be no assault, but there is a threat. A person may be guilty of threat by making the prohibited statements, even if untrue. So, if a defendant makes a bomb threat, but has placed no bomb in the building, a crime has been committed. Threats are misdemeanors in most jurisdictions and are punished less severely than assaults. In the Thomas case, the defendant was convicted under the Kentucky threat statute.

Vagrancy and Panhandling Vagrancy, as a criminal law issue, has received considerable attention. Most states and municipalities have statutes that forbid vagrancy. At common law, a vagrant was one who wandered from place to place with no means of support, except the charity of oth- ers. At one time, in early English law, vagrancy applied to disorderly persons, rogues (a dishonest wanderer), and vagabonds (a homeless person with no means of support).

clear and present danger

■ A test of whether or not

speech may be restricted or

punished. It may be if it will

probably lead to violence

soon or if it threatens

a serious, immediate

weakening of national

safety and security.

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The case for the Commonwealth was based solely on the testimony of Gladys Thomas. Mrs. Thomas on direct examination stated that on the Friday be- fore she went to swear out the warrant that she was in her front yard cutting weeds with a butcher knife when appellant came out of the house, hit her across the back with his hand, laughed and ran into a barber shop next door. Appellant then came back laughing and hit her across the back with a belt and then ran into a liquor store about three doors down from the house. Appellant continued to aggravate Mrs. Thomas until she asked him to go and get her a coke. Mrs. Thomas then testified thusly:

So, we went about an hour, an hour and a half after

my mom left and he came in and said, “I told you

to get ready to go,” and I said, “I’m not going,” and

he grabbed me by the hair of the head and threw

me against the refrigerator and said, “you are going

or I will kill you and prove self-defense. This is one

time everything is on my side. So, just get dressed

and let’s go somewhere and show everybody what a

happy family we are.”

Next, Mrs. Thomas gave testimony concerning the circumstances surrounding the threat which is the basis for the charge against appellant:

So, on Wednesday, he came in and he said, “I will

come home. I’m coming home.” I said, “you can’t.

You absolutely cannot. I went and applied for wel-

fare,” and he said, “I have to tell the man, Mr. Clark,

that I’m here or I’ll be in trouble.” One thing led to

another and he jumped in the middle of the floor and

said, “you and Brenda have got me against the wall.

You’re going to get me in trouble. I will cut both your

heads off before I go back.” Those are almost the ex-

act words. And I looked around and the little girl was

standing right in the screen door.

On cross-examination, Mrs. Thomas testified that this threat was made in the late afternoon and that on the next morning, on July 15, 1976, she sent and got a warrant.

[The applicable Kentucky statute] provides thusly:

A person is guilty of terroristic threatening when:

(a) He threatens to commit any crime likely to result

in death or serious bodily injury to another person

or likely to result in substantial property damage to

another person; or

(b) He intentionally makes false statements for the

purpose of causing evacuation of a building, place of

assembly, or facility of public transportation.

This court believes that [this statute] is not unconstitutionally vague and overbroad since the conduct proscribed, “threaten[ing] to commit a crime likely to result in death or serious physical injury” is not protected under either the Kentucky or U.S. Constitutions. Further, the language of the statute is sufficiently explicit to put the average citizen on no- tice as to the nature of the conduct so proscribed.

This court is aware of the recent decision in U.S. v. Sturgill, 563 F.2d 307 (6th Cir. 1977), which invali- dated [another Kentucky statute] on the basis that it was unconstitutionally overbroad. [The invalidated statute] provides: “A person is guilty of harassment when with intent to harass, annoy or alarm another person he: (b) In a public place, makes an offen- sively coarse utterance, gesture, or display, or ad- dresses abusive language to any person present.”

In Sturgill, the court held that in order for a statute, which punishes spoken words only, to with- stand an attack on its constitutionality, it must be first authoritatively interpreted by the state courts

THOMAS V. COMMONWEALTH OF KENTUCKY 574 S.W.2d 903 (Ky. Ct. App. 1978)

(continued)

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as not interfering with speech protected by the First Amendment.

This case can be distinguished from Sturgill, in that the language is proscribed under [the terror- istic threatening statute] is clearly without consti- tutional protection under the First Amendment. . . .

Certainly, [the terroristic threat statute] does not apply in the case of idle talk or jesting. The defendant’s

intent to commit the crime of “terroristic threatening” can be plainly inferred from the defendant’s own words and the circumstances surrounding them. All the statute requires is that the defendant threaten “to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person.”

[Conviction] Affirmed.

THOMAS V. COMMONWEALTH OF KENTUCKY (continued)

Beginning in the 1880s, it was common in the United States for statutes to prohibit a wide range of behavior as vagrancy. These statutes were drafted broadly to allow law enforcement officers considerable discretion in their enforcement. This discretion was used to control the “undesirables” of society. Many statutes made the status of being homeless, a gambler, and a drug addict a crime.

Today, states may not make personal status, such as drug addiction or alcohol- ism, a crime. The United States held that doing so violates the Eighth Amendment’s prohibition of cruel and unusual punishment.33 However, until 1972, people found undesirable by the police could be arrested under broadly worded vagrancy statutes for “wandering,” or walking around a city, because this was an act, not a status. This situation ended in 1972 when the United States Supreme Court handed down Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The Court announced in that case that vagrancy statutes that prohibit walking around, frequenting liquor stores, being supported by one’s wife, and similar behavior, to be “too precarious for a rule of law” and violative of the Due Process and Cruel and Unusual Clauses of the Constitution.

The result of Papachristou has been more narrowly drawn vagrancy statutes. Today such laws focus on more particularized behavior, and in many instances a mens rea element has been added. This addition prevents simple acts, such as walking at night, from being criminal. For example, a vagrancy law may prohibit “loitering or standing around with an intent to gamble,” or “loitering or standing in a transportation facility [e.g., bus station] with the intent of soliciting charity.”

In recent years panhandling (begging) has increasingly become a problem for most cities. Panhandlers often choose to congregate in and near public transportation egresses and ingresses, because of the large number of people who use such facilities. Because panhandlers are sometimes aggressive and intimidating to patrons of such facilities, some jurisdictions have chosen to prohibit begging at public transportation sites.

As the number of homeless persons grows in the United States, so will the prob- lems associated with vagrancy and panhandling. Examine statutes and ordinances that prohibit such activities with an awareness that they must be drawn carefully to avoid a

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First Amendment speech problem. Also be aware that other constitutional provisions may be implicated, such as the First Amendment’s freedom of association and the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments.

Crimes Involving Firearms A discussion of the regulation of firearms properly begins with the Second Amendment to the U.S. Constitution, which reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Despite the tireless efforts of firearms lobbyists to convince the nation that the Second Amendment was intended to protect the individual’s right to possess arms, the Supreme Court of the United States as well as nearly all lower courts that have heard this issue have concluded that the Amendment is intended to preserve a collective right, the right to have a well-regulated militia. The second half of the clause, to keep and bear arms, is interpreted as conjunctive with the first half of the clause, which provides for a well-regulated militia.

In a 1939 Supreme Court decision, United States v. Miller,34 a defendant who had been charged under a federal law prohibiting possession of short-barreled shotguns and rifles challenged the law as violating his Second Amendment right to possess a firearm. The Court stated:

The Constitution as originally adopted granted to the Congress power—“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” U.S.C.A. Const. art. § 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of ap- proved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens en- rolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

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The Supreme Court affirmed this interpretation of the Second Amendment in the 1980 case United States v. Lewis.35 The Court did not pass on the question if the Second Amendment establishes an individual right, as opposed to connecting the right to arms to the militia right, again until 2008 when it invalidated a Washington, D.C., ordinance forbidding the possession of handguns in the home in District of Columbia v. Heller, 554 U.S. The Court explicitly found an independent, individual right to possess arms under the Second Amendment for the first time.

However, Washington, D.C., is federal territory. As such, Heller did not address whether the Second Amendment’s right to possess firearms applies against the states. Indeed, several cases from the late 1800s stood for the principle that the Second Amendment, whatever its meaning, only limited federal authority. The Supreme Court accepted certiorari in a case involving state regulation of arms only a year following the Heller decision and issued a decision in 2010.

Two years ago, in District of Columbia v. Heller , 554 U.S. (2008), we held that the Second Amend- ment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chi- cago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such

firearm.” The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who re- side in the City. . . .

Several of the Chicago petitioners have been the targets of threats and violence. For instance, Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community ac- tivist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. Colleen Lawson is a Chicago resident whose home has been targeted by burglars. . . .

Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners’ primary submission is that this right is among the “privileges or im- munities of citizens of the United States” and that the narrow interpretation of the Privileges or Im- munities Clause adopted in the Slaughter-House Cases should now be rejected. As a secondary ar- gument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right. . . .

MCDONALD V. CHICAGO 561 U.S. 3025 (2010)

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[The Court chose to analyze the case under the Fourteenth Amendment’s Due Process Clause and not the Privileges and Immunities Clause because of the long history of not applying the Privileges and Immunities Clause to the states. It then reviewed the legal standard for applying one of the rights from the Bill of Rights against the states (called incorporation). For a right to apply against the states, it must be found fundamental to an ordered liberty.]

. . . . Self-defense is a basic right, recognized by many legal systems from ancient times to the pres- ent day, and in Heller, we held that individual self- defense is “the central component ” of the Second Amendment right. . . .

Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition.” Heller explored the right’s origins, noting that the 1689 Eng- lish Bill of Rights explicitly protected a right to keep arms for self-defense, and that by 1765, Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen.”

Blackstone’s assessment was shared by the American colonists. As we noted in Heller, King George III’s attempt to disarm the colonists in the 1760’s and 1770’s “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms.”

The right to keep and bear arms was consid- ered no less fundamental by those who drafted and ratified the Bill of Rights. “During the 1788 ratification debates, the fear that the federal gov- ernment would disarm the people in order to im- pose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” . . . Thus,

Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government.

Evidence from the period immediately follow- ing the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Repre- sentative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weap- ons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amend- ment, now so happily adopted, settles the whole question.” . . .

The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state con- stitutional provisions explicitly protecting the right to keep and bear arms. . . . .

In Heller, we held that the Second Amend- ment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American per- spective applies equally to the Federal Govern- ment and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recog- nized in Heller. The judgement of the Court of Ap- peals is reversed, and the case is remanded for further proceedings.

MCDONALD V. CHICAGO (continued)

Possession, Sale, and Transfer Laws McDonald and Heller apply to possession of handguns in the home. There is nothing in those decisions to limit the authority of government to require the registration of firearms, background checks prior to firearms purchases, or to more thoroughly regulate larger and more dangerous firearms, or the possession of any firearm outside of the home.

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One of the most common forms of weapons regulation is possession. Both federal and state laws prohibit a variety of possession-related offenses. These include improper pos- session of a weapon that is otherwise permitted, e.g., concealed possession; possession of altogether prohibited weapons, e.g., machine guns; and possession by certain classes of persons, e.g., possession by ex-felons, aliens, fugitives, mental incompetents, individuals who were dishonorably discharged from the military, those under stalking-related court orders, and individuals convicted of misdemeanor domestic violence. The possession of firearms is also prohibited in certain areas designated by statute. Near schools, in public buildings, in airports, in national and state parks, and on airplanes are examples.

One of the most significant federal firearms statutes is the National Firearms Act.36 Enacted in reaction to the organized crime problem of the 1930s, this law prohibited the sale and possession of automatic weapons (machine guns). Another important federal law is the Gun Control Act of 1968. Among its many provisions are a prohibition of mail order guns and the prohibition of the possession, transfer, or receipt of firearms by felons, aliens, and certain other persons. Many of the limitations of the Gun Control Act were repealed or reduced in the Firearm Owners Protection Act of 1986,37 such as lifting the ban on the interstate sales of long guns and the use of the U.S. Post Office mail to ship ammunition. The federal Brady Handgun Violence Prevention Act of 1993—named for President Ronald Reagan’s White House Press Secretary James Brady, who was shot during an attempted assassination of the president—requires all federally licensed gun dealers to conduct background checks of firearms purchasers to ensure that purchasers do not fall into one of the categories of ineligible buyers under the Gun Control Act of 1968. Records checks are now being implemented through the National Instant Background Check System (NICS). Another federal statute, the Violent Crime Control and Law Enforcement Act of 1994, prohibits the sale of semiautomatic weap- ons and large ammunition magazines. Additionally, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal agency charged with enforcing federal gun laws, has promulgated a large set of regulations interpreting and further regulating firearms.

Firearms Use Laws Many jurisdictions forbid the discharge of firearms in urban areas, absent good cause. Arizona’s unlawful discharge statute (A.R.S. § 13-3107) reads:

(A) A person who with criminal negligence discharges a firearm within or into the limits of any municipality is guilty of a class 6 felony. . . .

(1) As allowed pursuant to the provisions of Chapter 4 of this title. (2) On a properly supervised range. (3) In an area recommended as a hunting area by the Arizona game and fish

department, approved and posted as required by the chief of police, but any such area may be closed when deemed unsafe by the chief of police or the director of the game and fish department.

(4) For the control of nuisance wildlife by permit from the Arizona game and fish department or the U.S. fish and wildlife service.

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(5) By special permit of the chief of police of the municipality. (6) As required by an animal control officer in the performance of duties as

specified in section 9-499.04. (7) Using blanks. (8) More than one mile from any occupied structure as defined in section 13-3101. (9) In self-defense or defense of another person against an animal attack if a

reasonable person would believe that deadly physical force against the animal is immediately necessary and reasonable under the circumstances to protect oneself or the other person.

Other law forbids the use of certain weapons for hunting and fishing. For example, shotguns may not be permitted in the hunting of certain game. Some statues prohibit “aiming,” “pointing,” and otherwise threatening people with firearms.

The use of a weapon in the commission of a crime is sometimes a separate crime from the underlying offense. Nearly all jurisdictions require or permit enhancement of sentences for crimes committed while in possession of a firearm.

Registration and Licensing In addition to background checks, many states require guns to be registered. In some instances, licenses must be obtained to carry or use weapons.

The National Firearms Act38 requires national registration of all firearms manufac- tured or transferred in the United States, and it prohibits the sale of automatic weapons (machine guns).

Drug and Alcohol Crimes Crimes that involve the use of narcotics and alcohol may be classified in many ways. In one sense, such activity offends many people in society and appears to be an offense against the public morality. Whenever a pimp uses a young woman’s drug addiction to induce her to become involved in prostitution, it appears to be a crime against an individual. In the states, drug and alcohol crimes are universally regulated, although definitions and punishments vary considerably.

Drug and alcohol crimes are included in this section because of their impact on the order of society. Alcohol-related driving accidents are the cause of many fatalities. Drug addiction often is the cause of other crimes, such as theft, assaults, and prostitu- tion. Police report that a number of domestic problems are caused by alcohol and drugs and that much of the violence directed toward law enforcement officers is drug related. Large cities, such as Detroit and Washington, D.C., have experienced a virtual drug boom, which has led to increased assaults, batteries, and drug-related homicides. Many addicts, desperate for a “fix,” steal for drug money.

Drug and alcohol use are also expensive. Corporate America has recently awakened to the expenses associated with employee drug use. Employees who use drugs have high absenteeism and low productivity. Decreased performance caused by drug use can be costly, in both human and dollar terms. This is true especially in positions that require great concentration or pose risks to others, such as that of commercial pilots.

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In addition to business expenses, the high cost of rehabilitation can disable a family financially, and the price of drug-abuse detection and prosecution is high.

Alcohol Crimes Let it not be mistaken, alcohol is a drug. However, the law treats alcohol differently than it does other drugs. Alcohol may be legally possessed, consumed, and sold, subject only to a few restrictions. Narcotics, on the other hand, are significantly restricted. Their sale, posses- sion, and consumption are limited to specific instances, such as for medical use. The federal government, as well as every state, has statutes that spell out what drugs are regulated.

There are many alcohol-related crimes. Public drunkenness laws make it criminal for a person to be intoxicated in a public place. This crime is a minor misdemeanor and rarely prosecuted, as many law enforcement agencies have a policy of allowing such persons to “sleep it off ” and then releasing them.

All states have a minimum age requirement for the sale or consumption of alcohol. Those below the minimum age are minors. Any minor who purchases or consumes alco- hol is violating the law. Additionally, any adult who knowingly provides alcohol to a minor is also guilty of a crime, commonly known as contributing to the delinquency of a minor.

Merchants holding liquor licenses may be subject to criminal penalties for not complying with liquor laws, such as selling alcohol on holidays, Sundays, or election day, as well as for selling alcohol to minors. A merchant who violates liquor laws may also suffer the civil penalty of revocation of liquor license.

Alcohol and automobiles have proven to be a deadly and expensive combination. All states have laws that criminalize driving while under the influence of alcohol or drugs. Driving while under the influence of alcohol or drugs, driving while intoxicated, and driving with an unlawful blood-alcohol level are the names of these crimes.

These statutes are generally of two genres. One type of law generally prohibits the operation of a motor vehicle while under the influence of any drug, including alcohol. To prove this charge, the quantity of the drug or alcohol in the defendant’s system is not at issue; the defendant’s ability to operate the vehicle safely is. In such cases, field sobriety tests are often required of the suspect. These are tests that the suspect usually performs at the location where the police made the stop. Coordination, spatial rela- tions, and other driving-related skills are tested by field sobriety tests.

The second type of law prohibits driving a motor vehicle any time a person’s blood- alcohol level is above a stated amount. The states vary in the quantity required, although 8 hundredths of a percent (0.08) and 10 hundredths of a percent (0.10) are common. The effect of these laws is that an irrebuttable presumption is created. The law presumes that anyone with the stated blood-alcohol level or above cannot safely operate a motor vehicle. Under such statutes, evidence that a person can safely operate a motor vehicle with a blood-alcohol level greater than the maximum allowed is not permitted.

In recent years drunk driving has received considerable public and legislative atten- tion. The result has been stricter laws and greater punishment for offenders. The once- common police practice of driving drunk drivers home is virtually nonexistent today.

First offenses are usually misdemeanors. Second or third offenses are felonies. In many jurisdictions, there has been a move toward alcohol treatment rather than

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incarceration. This often involves house arrest, alcohol treatment, and defensive driving education. Also, while in these programs, convicted persons are commonly required to submit to periodic blood or urine screening.

For first-time offenders, these programs have many advantages over prison. First, the focus is on curing the alcohol problem. If successful, the possibility of repetition is elimi- nated. Second, convicted persons are often permitted to continue to work and maintain family relationships. Finally, the cost of administration of alcohol programs is lower than the cost of incarceration. The value of such programs for repeat offenders is questionable, and in many jurisdictions jail time is required as early as a second conviction.

Drug Crimes Unlike possession of alcohol, possession of other drugs is a crime. Every state and the federal government has enacted some variation of the Uniform Controlled Substance Act, a model act (similar to the Model Penal Code) drafted by the Commissioners on Uniform Laws. These statutes establish schedules of drugs that categorize drugs based on their danger, potential for abuse, and medical benefits. These factors then determine a drug’s allowed usage. For example, one schedule exists for drugs that may not be used under any condition, and another schedule permits use for medical and research pur- poses only. There are three basic drug crimes: possession, sales/distribution, and use.

Possession of prohibited drugs is a crime. Of course, actual possession is sufficient actus reus, but some jurisdictions also make constructive possession criminal. Constructive pos- session permits conviction of those people who exercise dominion and control over property where the illegal drug is located, even though the person has no “actual physical possession” of the prohibited narcotic. However, the Model Penal Code39 and most jurisdictions require knowledge that the drug was present before culpability is imposed. As such, if a guest stays in Robert’s home, Robert is not criminally liable for any drugs the guest has stowed away, unless Robert is aware of their presence. Once Robert becomes aware, he must see that the drugs are removed within a reasonable time or risk a possession charge.

First-time conviction of possession, if the quantity is small, is a misdemeanor and normally results in probation. In many states, if a person pleads guilty, submits to a term of probation, and successfully completes the probation, then no adjudication of guilt is entered; so, no record of conviction exists. Probation terms usually include drug counseling, periodic drug testing, and no other arrests during the period. This type of procedure is known as deferred sentencing or suspended imposition of sentence. See Chapter 16 for a discussion of sentencing.

The sale or distribution of prohibited drugs is the second primary drug offense. Generally, it is punished more severely than possession. Not only are sales prohibited, but any “delivery” or “distribution” of drugs is also illegal. “Possession with an intent to deliver or sell” is similar to simple possession, except a mens rea of intending to sell must be proven. Possession with an intent to sell or deliver is punished more severely than possession; often, such possession is punished equally with actual sale or delivery.

The quantity of the drug involved affects the level of punishment for both pos- session and sale/distribution offenses. Other factors, such as selling to minors, may aggravate the sentence.

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Unauthorized use of a controlled substance is also a crime. The mens rea is knowing use. So, if a person takes a pill containing a controlled substance that someone—who represented it to be an aspirin—gives him or her, there is no crime. Of course, the taking must be voluntary. If a person is forced down and injected with an illegal drug, he or she has committed no crime.

Recall from the earlier discussion of actus reus that addiction to controlled substances may not be made criminal. The United States Supreme Court has held that criminalizing a person’s status as an addict is cruel and unusual punishment, as prohibited by the Eighth Amendment to the U.S. Constitution.40 It is permitted, however, to punish a person for the act of taking a controlled substance.

Drug Courts

Drug cases began to clog court dockets in the 1980s. As a result, legislators, judges, and others searched for alternatives to deal with drug offenders. One alternative that has proven to be popular is the drug court. The first drug court opened in Miami, Florida, in 1989. By 1997, there were 161 programs in existence in 38 states, the District of Columbia, and Puerto Rico. Forty per- cent of those courts were in Florida and California. Additionally, nearly every state without a drug court was in the process of developing one.

As the name implies, the drug court hears only drug cases. In most drug courts, only non-violent drug offenders are eligible for admission. The time of admission varies between programs. In some courts, the offender is de- ferred into the program. If the offender successfully completes the program, no conviction results. In others, offenders are channeled into the program after a plea of guilty or postconviction.

The drug court specializes in the treatment and monitoring of drug of- fenders. All programs have a treatment component, although the form of treatment varies significantly among programs. In addition, drug court pro- grams are characterized by intensive monitoring. Participants are required to submit to daily or weekly drug screenings, and they are required to fre- quently appear in court. Many programs also use a system of “graduated sanctions” to punish participants who fail to meet program requirements.

The data concerning the success of drug programs are not clear. Un- fortunately, one study indicates that 48 percent of the participants do not successfully complete their programs. It is too early to know the degree to which these programs decrease recidivism as compared to processing in- dividuals through other courts, but at least one researcher has found that graduated sanctions programs may be successful in this regard.

Sources: Drug Courts: Overview of Growth, Characteristics, and Results Report of the General Accounting Office (GAO/GGD 97–106), July 31, 1997; and Adele Harrell,

U.S. Department of Justice, National Institute of Justice (1998).

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RICO and CCE You have already learned that the Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted to fight organized crime in all its forms. Another federal statute, Continuing Criminal Enterprise (CCE),41 was enacted specifically to combat drug traf- ficking. The statute is aimed at prosecuting the people at the top of the drug-dealing and smuggling pyramid, and, accordingly, it has become known as the “Drug Kingpin statute.”

A person engages in a criminal enterprise if (1) he is an administrator, organizer, or other leader (2) of a group of five or more people (3) who are involved in a series of drug violations. A series of violations means three or more drug convictions.42

Conviction of CCE results in stern punishment. A general violation receives 20 years to life in prison. Second convictions carry 30 years to life. If a person is deter- mined to be a “principal leader,” the amount of drugs involved was enormous, or the enterprise made $10 million or more in one year from drugs, then life imprisonment is mandatory. Fines may also be imposed. Also, the statute provides for imprisonment or death when murder results from the enterprise.43

Finally, the Comprehensive Forfeiture Act of 198444 applies to both RICO and CCE violations. This statute permits the government to seize property and money that is used in the commission of the crimes and that is a product of the crimes. So, if a drug dealer uses a boat to smuggle drugs, the boat can be seized, even though it may have been purchased with “honest” money. Any items acquired with drug money may be seized, as can bank accounts and trusts.

Possession of Drug Paraphernalia Another tool in the government’s arsenal against drug use are laws that prohibit the sale, use, and possession of drug paraphernalia. These laws are often aimed at retailers who sell the devices that are used to take drugs. Needles, roach clips, and specialized pipes are examples of the type of paraphernalia that are proscribed.

These laws have been challenged on many fronts. One challenge asserts that such laws are vague because they do not adequately describe what is proscribed. In addition, it has been asserted that these laws are overly broad because they include devices that may be used for both legitimate and illegal purposes.45 These issues were considered by the United States Supreme Court in the 1994 case, Posters ‘N’ Things, Ltd. v. United States.46 In this case the Court held that a law proscribing items “primarily intended” or “designed for” drug use was neither too vague nor overly broad and, accordingly, found it constitutional.

Crimes against the aDministration of government Perjury Perjury was a crime at common law and continues to be prohibited by statute in all states.

perjury

■ Lying while under

oath, especially in a court

proceeding. It is a crime.

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The basic elements of perjury are (1) the making of a (2) false statement (3) with knowledge that it is false (4) while under oath. To gain a conviction, the prosecution has the tough burden of proving the mens rea: that the person who made the statement knew that it was false. As with other crimes, juries are permitted to infer a defendant’s knowledge from surrounding facts.

In addition, the statement must be made while under oath. Be aware that this re- quirement includes far more than testifying in court. Most laws cover all statements made before a person authorized to administer oaths. Therefore, perjury laws apply to people who sign affidavits before notary publics and appear as witnesses before a court reporter (e.g., for deposition), a grand jury, and all others who have the authority to administer oaths. For those individuals who have a religious objection to “swearing,” the law permits an affirmation. This is simply an acknowledgment by the witness that the testimony he or she renders is truthful. The law treats an affirmation in the same manner as it does an oath.

Some jurisdictions require that the false statement be “material,” or important to the matter. This requirement prevents prosecutions for trivial matters. Some jurisdic- tions have defined materiality as any matter that may affect the outcome of a case. If a statement is not material, even if untrue, then a perjury conviction is not permitted.

A related crime is subornation of perjury. This crime occurs when one convinces or procures another to commit perjury. One who commits subornation is treated as a perjurer for the purpose of sentencing.

In addition to being a crime in every state, perjury has been made criminal by statute in the United States. 18 U.S.C. § 1621 reads:

Whoever (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly . . . is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true. . . .

Of course, truth is a complete defense to a charge of perjury. What is truthful is not always easy to determine, and in most questionable cases prosecutors choose not to pursue the matter. This decision is largely due to the mens rea element.

subornation of perjury

■ The crime of asking or

forcing another person to

lie under oath.

the Problems of PresiDent Clinton: a Case stuDy in Crimes against the PubliC

One of the most public cases of crimes against the public occurred in the late 1990s. For several years independent Counsel Kenneth Starr investigated Pres- ident William J. Clinton and many of his associates for activities that transpired before and after Clinton assumed the presidency. In December 1998 the House of Representatives of the United States impeached President Clinton after

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receiving a referral from Mr. Starr. The House issued a two-count impeachment alleging both perjury and obstruction of justice.

In the impeachment, the president was accused of committing perjury to a grand jury. The House alleged that Mr. Clinton lied about the nature of his relationship with a White House intern, Monica Lewinsky. He was also ac- cused of lying about a prior perjury he committed in a deposition in a sexual harassment action filed by Paula Jones, who had been an employee of the State of Arkansas when Mr. Clinton was governor of that state. In addition, he was charged directly with perjury in the Paula Jones sexual harassment lawsuit, with suborning perjury in that case, and with obstructing justice in that case.

Perjury can be a tricky affair because language can be a tricky affair. Proving perjury requires actual knowledge of falsity, materiality, and an oath. The mens rea is the difficult part, as demonstrated in the Clinton case. In response to questions concerning whether he had sexual relations with Ms. Lewinsky, Mr. Clinton answered in the negative. Later, it was discovered that these answers were true using Mr. Clinton’s definition of sex, which he narrowly defined as intercourse. He later admitted to having oral and other forms of sexual contact with Ms. Lewinsky. Mr. Clinton also used semantics to evade disclosing other facts. For example, he relied on distinctions in tense when responding to certain questions. Mr. Clinton responded to one question by stating “[I]t depends on what the meaning of the word ‘is’ is. If the, if he, if is means is and never has been, that is not, that is one thing. If it means there is none, that was a completely true statement.”

Another problem prosecutors faced in the Clinton case was his inability to recall facts. In response to many details, the president answered that he was unable to remember; or he would provide a qualified answer (e.g., I believe, but I’m not sure). In such cases, a prosecutor must prove that the witness did know the answer in order to prove perjury—a very difficult task.

Concerning the obstruction of justice charges, Mr. Starr alleged that Mr. Clinton attempted to retrieve gifts he had given to Ms. Lewinsky in an attempt to prevent them from falling into the hands of investigators. In ad- dition, Mr. Starr accused the president of attempting to coach witnesses into testifying in a certain manner. For example, his secretary testified that the president met with her, told her that there were several things she needed to know, and that he had been asked about Monica Lewinsky in deposition the day before. He then posed these questions and statements to the secretary: “You were always there when she was there, right? We were never really alone. Monica came on to me, and I never touched her, right? You can see and hear everything, right?”

(continued)

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Bribery As is true of perjury, bribery was a crime at English common law. Actually, bribery was initially a violation of biblical law, because it was wrong to attempt to influence judges, who were considered to be God’s earthly representatives. Eventually, the crime was recognized by the courts of England.

Today, bribery is a statutory crime in the states and in the United States. The essential elements of the crime are (1) soliciting or accepting (2) anything of value (3) with the purpose of (4) violating a duty or trust. Two primary forms of bribery are that of a public official and commercial bribery.

As mentioned, bribery began as a prohibition of influencing a judge. The crime was eventually extended to include bribery of all public officials and public servants. Statutes make it bribery to be the one accepting or giving the “thing of value.” Hence, if a corporate official gives a public official money in exchange for awarding a contract to the company, both the corporate officer and the public official have committed bribery.

Most bribery statutes declare that unsuccessful offers are bribes. Thus, if the public official rejects the offer of the corporate officer, there is still a bribery violation. The offer need not be of money in exchange for a favor; anything of value is sufficient. Automobiles, tickets to a St. Louis Cardinals game, and a promise of sexual favors all satisfy this requirement.

On February 12, 1999, the Senate of the United States voted 45 to 55 in favor of conviction on the perjury count and 50–50 on the obstruction of justice count, in both cases falling short of the 67 votes necessary to convict and remove the president. Because Kenneth Starr (as well as many consti- tutional scholars) was of the opinion that a president must be impeached and removed before a criminal action may be filed against the president, Mr. Starr did not file criminal charges against Mr. Clinton. Mr. Clinton may now be charged and tried for both the perjury and obstruction allegations. In 1999, the trial judge in the Paula Jones case held Mr. Clinton in contempt of court for “giving false, misleading and evasive answers that were designed to obstruct the judicial process. . . . Simply put, the president’s deposition testimony regarding whether he had ever been alone with Ms. Lewinsky was intentionally false, and his statements regarding whether he had ever en- gaged in sexual relations with Ms. Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term ‘sexual relations.’” The court ordered Mr. Clinton to pay plaintiff’s expenses resulting from efforts to disprove his statements, as well as related court costs.

Source: for contempt information: http://www.foxnews.com/news/packages/president/side0414a99.sml

bribery

■ The offering, giving,

receiving, or soliciting of

anything of value in order

to influence the actions of a

public official.

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The offer must be made to a public official or servant. Both terms are defined broadly. Further, the offeror must be seeking to influence the official in a matter over which the official has authority. Most courts have held that whether the officer actually had the authority to carry out the requested act is not dispositive; the issue is whether the offeror believes that the official possesses the authority. Awarding of government contracts, setting favorable tax assessments, and overlooking civil and criminal viola- tions are examples of corrupt acts.

The offer alone makes the offeror guilty of bribery. For the public official to be convicted, there must be an acceptance. This usually means that the official does the requested act; however, it is widely held that an acceptance is all that is necessary to support a conviction.

Bribery has been extended beyond the public affairs realm to commercial life. Whenever a person who is engaged in business activities breaches a duty or trust owed to someone (or something, such as a business organization) in exchange for something of value, bribery has been committed.

The Model Penal Code declares that commercial bribery is a misdemeanor. The Code applies to people in specific positions, such as lawyers, accountants, trustees, and officers of corporations.47 Anyone who makes an offer to someone in one of these posi- tions to violate the trust or duty created by the position is guilty of bribery. Of course, any person holding such a position who accepts such an offer is also guilty of bribery. The Code specifically states that any person who holds himself or herself out to the public to be in the business of appraising the value of services or commodities is guilty of bribery if he or she accepts a benefit to influence the decision or appraisal. Knowing that one is violating the trust is the mens rea under the Code.

If a seller for the Widgcom Company were to offer the purchasing agent of Retail- ers, Inc., money in exchange for receiving the contract to supply Retailers with Widgets for the next year, commercial bribery has occurred. A corporate officer who accepts free personal air travel in exchange for buying all corporate airline tickets from the same airline has committed bribery.

Finally, note that there are statutes that prohibit “throwing” athletic contests for pay. That is, any player, coach, owner, or official who accepts a benefit to cause one participant to win or lose commits bribery. These laws often apply to both professional and amateur sports.

Tax Crimes You have likely heard the quip, “In life, only two things are certain, death and taxes.” Tax revenues are the lifeblood of government. In the United States, people are taxed at the federal, state, and local levels (county, municipal, and school district taxes). These taxes come in many forms, including income tax, gift and estate tax, sales tax, and excise taxes. Tax laws apply to individuals, estates, and business entities.

All taxing authorities have statutes that impose both civil and criminal penalties for violation of tax laws. Common violations of tax laws are tax evasion, failing to

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file a required tax return, filing a fraudulent return, and unlawful disclosure of tax information. These are not the only crimes related to taxes, however, as shown by the applicable federal statutes, which embody 16 tax-related crimes.48

Tax evasion involves paying less tax than required or underreporting one’s income with the intent of paying less tax. The federal statute covering tax evasion reads:

26 U.S.C. § 7201 Attempt to evade or defeat tax

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Tax fraud, a crime closely related to evasion, involves using fraud or false state- ments to avoid a tax obligation. This crime may occur in many ways, including falsify- ing statements that are provided to a revenue agency, such as fraudulent receipts used for deductions. Filing false tax returns is also a form of tax fraud.

Failure to file a required tax return is also criminal. The relevant federal statute reads:

26 U.S.C. § 7203 Willful failure to file return, supply information, or pay tax

Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information . . . [shall] be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

Note that § 7203 applies to anyone who is required to file a tax return, pay a tax, or supply information. Therefore, this provision can be the basis of a prosecution of an employer who pays his or her employees in cash and makes no report to the Inter- nal Revenue Service. Likewise, although some entities are not taxed, such as partner- ships, they are required to file informational returns, and failure to do so violates this provision.

Tax evasion, filing fraudulent tax returns, and the unauthorized disclosure of in- formation are crimes of commission. That is, an affirmative act is required to commit these crimes.

Failing to file a required return, or other information, is an act of omission. Prov- ing such crimes requires not proof of an illegal act but that a required act was not taken. The quoted statutes require willful violations. Negligence in preparing a tax return or in filing the return is not criminal. However, such errors may lead to civil penalties.

The willfulness requirement was considered by the Supreme Court in Cheek v. United States.

tax evasion

■ The deliberate

nonpayment or

underpayment of taxes that

are legally due. Criminal

tax evasion has higher

fines than civil fraud and

the possibility of a prison

sentence upon the showing

of “willfulness.”

tax fraud

■ The deliberate

nonpayment or

underpayment of taxes that

are legally due.

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Tax laws require the disclosure of all income and profits. This includes income from illegal sources. Gamblers are required to report their winnings, prostitutes their income, and drug dealers the profits derived from their sales. Failure to report income from illegal acts is the same as failure to report legally earned income. Because requir- ing people to report income from illegal activities raises a self-incrimination problem, tax laws require that all information obtained be kept confidential. Tax officials are not permitted to disclose such information to law enforcement authorities, and to do so is unlawful disclosure. The privilege against self-incrimination is discussed more thor- oughly in Chapter 8.

Obstruction of Justice Obstruction of justice refers to any number of unlawful acts. As a general proposition, any act that interferes with the performance of a public official’s duties obstructs justice. However, the crime is most commonly associated with law enforcement and judicial officials.

Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defen- dant, that the defendant knew of this duty, and that he voluntarily and intentionally violated this duty. We deal first with the case where the issue is whether the defendant knew of the duty pur- portedly imposed by the provision of the statute or regulation he is accused of violating, a case in which there is no claim that the provision at issue is invalid. In such a case, if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowl- edge component of the willfulness requirement. But carrying this burden requires negating a defen- dant’s claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws. This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand

the law, or believe that the duty does not exist. In the end, the issue is whether, based on all the evi- dence, the Government has proved that the defen- dant was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunder- standing and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable.

In this case, if Cheek asserted that he truly be- lieved that the Internal Revenue Code did not pur- port to treat wages as income, and the jury believed him, the Government would not have carried its burden to prove willfulness, however, unreason- able a court might deem such a belief. . . .

We thus disagree with the Court of Appeals’ requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government’s evidence purporting to show a defendant’s awareness of the legal duty at issue. Knowledge and belief are char- acteristically questions for the fact finder.

CHEEK V. UNITED STATES 498 U.S. 192 (1991)

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214 Part i Criminal Law

The types of acts that fall under such statutes include tampering with witnesses or jurors, interfering with police officers, destroying evidence needed for a court proceed- ing, and intentionally giving false information to a prosecutor in an effort to hinder a prosecutorial effort. However, obstruction statutes are drafted broadly, thereby permit- ting creative prosecutions. For example, it is common for women who are physically abused by their husbands to contact the police during a violent episode and demand the husband’s arrest, usually in an effort to get the man out of the house. Once the husband is arrested, many women lose interest in prosecuting and often refuse to testify against their husbands in court. In such a case, a prosecutor could charge the wife with obstruction of justice because of her refusal to testify.

Resisting arrest is a similar crime. At common law, one could resist an unlawful arrest. Although a few jurisdictions have retained this rule, this is not presently the law in most jurisdictions. Most states have followed the Model Penal Code approach, which prohibits even moderate resistance to any arrest.49 It is a wise rule, considering the remedies that are available if a police officer makes an unlawful arrest. If the arrest is unlawful, but in good faith, the arrestee will be released either at the police station or after the first judicial hearing. If the arrest was unlawful and made maliciously, the arrestee not only will be released but also has a civil cause of action for false imprison- ment and violation of civil rights.

Contempt Failure to comply with a court order is contemptuous, as is taking any act with the purpose of undermining a court’s authority or intending to interfere with its adminis- tration and process. Although statutes provide for contempt, it is widely accepted that the contempt power is inherent.

Contempt is broken down into direct and indirect criminal contempt and direct and indirect civil contempt. Direct contempt refers to acts that occur in the presence of the judge. Although contempt usually occurs in the courtroom, the judges’ chambers and office area are included. Indirect contempt refers to actions taken outside the pres- ence of a court but that are violative of a court order.

Criminal contempt is levied to punish a person for violating a court order. Civil contempt, in contrast, does not have punishment as its purpose. It is intended to coerce a person into complying with a court order. For example, if Mary refuses to testify at a trial despite an order to testify, the judge may order her confined until she complies. Once she testifies, she is free. It is often said that civil contemnors hold the keys to their jail cells, whereas criminal contemnors do not. In theory, one who has been held in civil contempt can be punished for criminal contempt after complying with the court order. In practice this punishment seldom occurs, presumably because judges and prosecutors feel that the civil punishment imposed is adequate.

The contempt power is significant. Indirect criminal contemnors are entitled to all the protections of other criminal defendants, such as a right to a trial, assistance of counsel, and proof beyond a reasonable doubt. Direct criminal contemnors have no such rights, as the act took place in the presence of a judge. However, any sentence imposed may be appealed and reviewed for fairness.

contempt

■ A willful disobeying of a

judge’s command or official

court order. Contempt can

be direct (within the judge’s notice) or indirect (outside the court and punishable

only after proved to the

judge). It can also be civil contempt (disobeying a court order in favor of

an opponent) or criminal contempt.

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Civil contemnors have few rights. They do not possess the rights of those accused of crimes, because civil contempt is not considered a criminal action. In most instances they enjoy no right to appeal. A civil contemnor holds his or her own key; he or she must comply with the court’s order. Of course, if an appellate court determines that the underlying order is unlawful, the civil contemnor is released. However, the individual may be charged with criminal contempt for failure to comply with the order before it was held unlawful by an appellate court. The fact that a court order may be nullified at some future date does not justify noncompliance. Court orders must be obeyed to assure the orderly administration of justice.

Legislatures also have the power to cite for contempt. Legislatures, usually through committees, conduct hearings and other proceedings when considering bills and amendments to statutes. The contempt power serves the same function for legislatures that it does for courts. It furthers the orderly performance of legislative duties. Refusal to testify before a legislative body (usually a committee) or to produce documents or other items, and disruption of a proceeding are examples of legislative contempt. Persons charged with legislative contempt possess the same rights as defendants charged with other crimes. In most instances, legislative bodies refer contempt cases to prosecutors, rather than adjudicating such cases themselves.

tWo Cases of ContemPt

Contempt of court orders are common in domestic law cases. One case, which received considerable media attention, involved Dr. Elizabeth Morgan, who refused to obey a court order to disclose the location of her child, Heather, claiming that her ex-husband had molested the child. The judge ordered that she disclose the location of the child so her ex-husband could exercise his court-ordered visitation rights. She refused, and the judge ordered that she be incarcerated until she disclosed the child’s whereabouts. Dr. Morgan spent a total of 759 days in jail and was released only after an act of Congress limited the amount of time a civil contemnor could spend in jail to one year.

A case from Houston, Texas, teaches that the contempt power of judges is powerful. Houston attorney John O’Quinn was found in criminal contempt by a federal district judge for sleeping in a jury room. The basis for the contempt citation was an order from the judge that O’Quinn (and others) “stay out of the facilities up here on this floor unless you get prior permission.” The Fifth Circuit Court of Appeals reversed the conviction, finding that the judge’s order was too vague. However, this is a good example of the breadth of the contempt power; had the judge’s order been more specific, it would have been upheld.

Source: “A Hard Case of Contempt,” Time, Sept. 18, 1989; “A Mother’s 759 Days of Defiance,” U.S News & World Report, Oct. 9, 1989.

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258

CHAPTER 8 Chapter Outline “Defense” Defined Affirmative Defenses Insanity

M’Naghten Irresistible Impulse Durham The Model Penal Code Test Guilty But Mentally Ill (GBMI) Procedures of the Insanity Defense Disposition of the Criminally Insane Insanity at the Time of Trial

Duress and Necessity Use-of-Force Defenses

Self-Defense Defense of Others Defense of Property and Habitation Imperfect Self-Defense Arrests

Infancy Intoxication Mistake Entrapment Alibi and Consent Statutes of Limitation Ethical Considerations: Playing Both Sides

of the Fence

Chapter Objectives

After completing this chapter you should be able to:

• define, recite the elements of, and apply to factual scenarios common factual defenses to criminal accusations, such as alibi.

• define, recite the elements of, and apply to factual scenarios common statutory defenses to criminal accusations, such as the insanity defense.

• critically discuss these defenses.

• identify the material facts and legal issues in one-half of the cases you read and describe the court’s analyses and conclusions in these cases.

FACTuAl And STATuToRy dEFEnSES

258

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Chapter 8: Factual and Statutory Defenses 259

“Defense” DefineD Criminal defendants usually claim that they are innocent of the charges against them. A defendant’s reason for asserting that he is innocent is called a defense. Defenses can be factual: “I didn’t do it!” They can also be legal: “I did it, but the case was filed after the statute of limitation had run.” Many defenses have been developed under the common law; however, many others have been created by legislation. Finally, some defenses find their origin in the constitutions of the states and federal government. Some defenses are complete (perfect); that is, if they are successful, the defendant goes free. Other defenses are partial; the defendant avoids liability on one charge but may be convicted of a lesser offense.

This chapter examines several factual and statutory defenses. Chapter 9 discusses constitutional defenses.

AffirmAtive Defenses There is a special class of defenses known as affirmative defenses. Affirmative defenses go beyond a simple denial; they raise special or new issues that, if proven, can result in an acquittal or lesser liability. Defenses that raise the question of a defendant’s mental state to commit a crime (e.g., insanity and intoxication), whether justification or ex- cuse existed to commit the crime (e.g., self-defense), and alibi fall into the affirmative defenses class.

As a general rule, criminal defendants may sit passively during trial, as the prosecution bears the burden of proving the government’s allegations. In all instances, burden of proof refers to two burdens, the burden of production and the burden of persuasion. Because it is not practical to require prosecutors to prove that every de- fendant was sane, was not intoxicated, or did not have justification to use force, the burdens for affirmative defenses are different than for other defenses. First, defendants have the duty of raising all affirmative defenses. In some cases, this means that defen- dants must inform the prosecutor of their intention to raise the defense early in the process. At trial this means that defendants must produce some evidence to support the defense. This is known as the burden of production.

After defendants have met the burden of production, the burden of persuasion then must be met. There is a split among the states; some require the defendant to carry this burden, whereas others require it of the prosecution. If defendants have the burden, they must convince the fact finder that the defense is true. Defendants must prove this by a preponderance of evidence. In jurisdictions that require prosecutors to disprove an affirmative defense, there is again a split as to the standard of proof required. Some require proof by a preponderance, and others require proof beyond a reasonable doubt.

Some of the defenses covered in this chapter are affirmative defenses. It is necessary to research local law to determine which procedure is followed in a particular jurisdic- tion and what defenses are considered “affirmative”.

affirmative defense

■ A defense that is more

than a simple denial of the

charges. It raises a new

matter that may result in

an acquittal or a reduction

of liability. It is a defense

that must be affirmatively

raised, often before trial or

it is lost.

burden of proof

■ The requirement that

to win a point or have an

issue decided in your favor

in a lawsuit, you must

show that the weight of

evidence is on your side

rather than “in the balance”

on that question.

burden of going forward (production)

■ The requirement that

one side in a lawsuit

produce evidence on a

particular issue or risk

losing on that issue.

burden of persuasion

■ The requirement that

to win a point or have an

issue decided in your favor

in a lawsuit you must show

that the weight of evidence

is on your side, rather than

“in the balance” on that

question.

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260 Part I Criminal Law

insAnity Few aspects of criminal law have received as much public attention as the insanity defense. The defense has also been the subject of considerable scholarly research and discussion. Some critics charge that the defense should not be available. Others criticize not the availability of such a defense but the particular tests employed to determine sanity. Despite its critics, insanity is recognized by nearly all jurisdictions as a defense. At least four states—Montana, Kansas, Utah, and Idaho—have abolished the insanity defense.1 In 1994, the United States Supreme Court denied certiorari in a case chal- lenging the abolition of the defense as violative of due process.

In reality, insanity is a mens rea defense. If a defendant was insane at the time of the crime, it is unlikely that the requisite mens rea existed. It is generally held that one who is insane is incapable of forming a rational purpose or intent. In fact, in most jurisdic- tions defendants may put on evidence to establish that insanity prevented the requisite mens rea from being formed. This is the defense of diminished capacity. It is a direct attack on the mens rea element of the crime, separate from the defense of insanity. If successful, the result could be conviction of a lesser, general-intent crime. However, a few states have made defendants choose between the insanity defense and the assertion of lack of mens rea due to insanity.

The theory underlying the defense of insanity is that no purpose of criminal law is served by subjecting insane persons to the criminal justice system. Because they have no control over their behavior, they cannot be deterred from similar future behavior. Similarly, no general deterrence will occur, as others suffering from a mental or physical disease of the mind are not likely to be deterred. The one purpose that may be served, incapacitation, is inappropriate if the defendants no longer suffer from a mental dis- ease, or if the disease is now controlled. If the defendants continue to be dangerous, there is no need to use the criminal justice system to remove them from society, because this can be accomplished using civil commitment.

diminished capacity

■ The principle that having

a certain recognized form

of diminished mental capacity while committing a crime should lead to

the imposition of a lesser

punishment or to lowering

the degree of the crime.

tWinKies, WitCHCrAft, Pms, AnD mOre

Some interesting insanity-related defenses have been raised by defendants. Although some are in the nature of full insanity defenses, most are asserted as diminished-capacity defenses.

One of the most famous is the so-called Twinkie defense, raised by a de- fendant in California who was charged with murdering a mayor and another official. He claimed that his large consumption of white sugar, primarily through snack foods, caused him to have a diminished capacity. The defense was successful in reducing the crime from murder to manslaughter. He was

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Chapter 8: Factual and Statutory Defenses 261

Something that must be remembered is that criminal law has its own definition of insanity. Other areas of law (e.g., civil commitment) use different tests, as do other professions (e.g., psychiatry). Each jurisdiction is free to use whatever test it wishes to determine insanity. Three tests are used to determine sanity in the criminal law con- text: M’Naghten; irresistible impulse; and the Model Penal Code. A fourth test, the Durham, is no longer used in any jurisdiction but is mentioned because of its historical significance.

M’Naghten In 1843 Daniel M’Naghten was tried for killing the British prime minister’s secre- tary. M’Naghten was laboring under the paranoid delusion that the prime minister was planning to kill him, and he killed the minister’s secretary, believing him to be the prime minister. The jury found M’Naghten not guilty by reason of insanity.2 The decision created controversy, and the House of Lords asked the justice of the Queens Bench to state what the standards for acquittal on the grounds of insanity were.3 Those standards were attached to the decision and set forth the following standard, known as the M’Naghten rule.

1. At the time that the act was committed 2. the defendant was suffering from a defect of reason, from a disease of the mind, that

caused 3. the defendant to not know

a. the nature and quality of the act taken or b. that the act was wrong.

M’Naghten rule

■ A principle employed

in some jurisdictions for

determining whether

criminal defendants had

the capacity to form

criminal intent at the

time they committed the

crime of which they are

accused. The M’Naghten

rule is also referred to as

the M’Naghten test or the

right-wrong test.

sentenced to a short prison term and committed suicide after his release. The California legislature responded to the decision by barring diminished- capacity defenses in future cases.

In addition to the Twinkie defense, all of the following have been pleaded by defendants in support of either an insanity defense or a diminished- capacity defense: premenstrual syndrome, involuntary subliminal television intoxication, brainwashing syndrome, and posttraumatic stress disorder. One defendant even asserted a witchcraft defense, claiming that witchcraft made him do it.

Many states have followed California’s lead and eliminated the diminished-capacity defense. Others require defendants to choose between asserting insanity or diminished capacity.

(continued)

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262 Part I Criminal Law

The M’Naghten, or right-wrong, test is that used by most jurisdictions today. First, the defendant must have suffered from a disease of the mind at the time the act occurred. Disease of the mind is not clearly defined, but it appears that any condition that causes one of the two events from the third part of the test satisfies this element. That is, any disease of the mind that causes a defendant to not know the quality of an act or that an act is wrong is sufficient. In at least one case, extremely low intelligence was found adequate.4

The phrase “the defendant must not know the nature and quality of the act” sim- ply means that the defendant did not understand the consequences of his or her physi- cal act. The drafters of the Model Penal Code gave the following illustration: A man who squeezes his wife’s neck, believing it to be a lemon, does not know the nature and quality of his actions.5

What is meant by “wrong,” as used in the M’Naghten test? Courts have defined it two ways. One asks whether the defendant knew that the act was legally wrong, and the other asks whether the defendant knew that the act was morally wrong.

Irresistible Impulse Under the M’Naghten test, defendants who knew that their actions were wrong, but could not control their behavior because of a disease of the mind, are not insane. This has led a few jurisdictions, which follow M’Naghten, to supplement the rule. These states continue to follow the basic rule but add that defendants are not guilty by reason of insanity if a disease of the mind caused the defendants to be unable to control their behavior. This is true even if the defendants understood the nature and quality of the act or knew that the behavior was wrong. This is known as irresistible impulse.

Irresistible impulse tests can be found in American cases as far back as 1863.6 Of course, the largest problem with implementing the irresistible impulse test is distin- guishing acts that can be resisted from those that cannot.

Durham In 1871 the New Hampshire Supreme Court rejected the M’Naghten test and held that a defendant was not guilty because of insanity if the crime was the “product of mental disease.” No other jurisdictions followed New Hampshire’s lead until 1954, when the District of Columbia Court of Appeals handed down Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954). Generally, the Durham rule requires an acquit- tal if defendants would not have committed the crime if they had not been suffering from a mental disease or mental defect.

Durham was overturned in 1972 by the District of Columbia Court of Appeals in favor of a modified version of the Model Penal Code test.7 Today, Durham is not used by any jurisdiction.

The Model Penal Code Test The Model Penal Code contains a definition of insanity similar to, but broader than, the M’Naghten and irresistible impulse tests. This test is also referred to as the substantial capacity test. The relevant section of the Code reads8:

irresistible impulse

■ The loss of control due

to insanity that is so great

that a person cannot stop

from committing a crime.

Durham rule

■ The principle, used in

Durham v. U.S. (214 F.2d. 862 (1954)), that defendants are

not guilty of a crime because

of insanity if they were

“suffering from a disease or

defective mental condition at

the time of the act and there

was a causal connection

between the condition and

the act.”

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Chapter 8: Factual and Statutory Defenses 263

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminal- ity [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

The Code is similar to M’Naghten in that it requires that mental disease or defect impair a defendant’s ability to appreciate the wrongfulness of his or her act. The final line, “conform his conduct to the requirements of law,” incorporates the irresistible impulse concept.

The Code’s approach differs from the M’Naghten and irresistible impulse test in two important regards: First, the Code requires only substantial impairment, whereas M’Naghten requires total impairment of the ability to know the nature or wrongfulness of the act. Second, the Code uses the term appreciate, rather than know. The drafters of the Code clearly intended more than knowledge, and, as such, evidence concerning the defendant’s personality and emotional state are relevant.

The Model Penal Code test has been adopted by a few jurisdictions. The federal courts used the test until Congress enacted a statute that established a test similar to the M’Naghten test.9 That statute places the burden of proving insanity, by clear and convincing evidence, on the defendant.

Guilty But Mentally Ill (GBMI) In 1981 John Hinckley attempted to assassinate President Ronald Reagan. The presi- dent was seriously wounded and his press secretary, James Brady, suffered permanent brain injury. It was later learned that Hinckley committed the act to impress a movie actress he had never met. At trial, Hinckley was found not guilty by reason of insanity. There was both public and legislative backlash to the decision and to the insanity defense. As a result, legislators throughout the nation moved to abolish or limit the scope of the insanity defense. Today, four states—Idaho, Montana, Utah, and Kansas— have abolished the defense altogether.10

Rather than abolishing the defense, other states sought to limit or alter its impact. One such measure was the establishment of the Guilty But Mentally Ill (GBMI) verdict. Pennsylvania’s GBMI statute reads, in part, that a “person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found ‘guilty but mentally ill’ at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.”11 As you can see, the GBMI verdict is a finding of mental illness at the time of the crime, but not insanity as defined by the applicable legal test. Unlike a defendant who is not guilty by reason of insanity, a defen- dant who is GBMI is both punished and treated. The defendant is sentenced as any other offender for the crime, but in addition the state provides mental health treatment.

Procedures of the Insanity Defense Insanity is an affirmative defense. In the federal system and in many states, defendants must provide notice to the court and government that insanity will be used as a defense

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at trial. These statutes usually require that the notice be filed a certain number of days before trial. This notice provides the prosecution with an opportunity to prepare to rebut the defense prior to trial.

In most instances, lay testimony is not adequate to prove insanity; psychiatric examination of defendants is necessary. The judge presiding over the case will ap- point a psychiatrist or psychologist, who will conduct the exam and make the find- ings available to the judge. Often defendants wish to have a psychiatrist of their own choosing perform an examination. This is not a problem if the defendant can afford to pay for the service. In the case of indigent defendants who desire an independent mental examination, statutes often provide reimbursement from the government for independent mental examinations up to a stated maximum. In the federal system, trial courts may approve up to $1,000 in defense-related services. Defendants who seek reimbursement for greater expenses must receive approval from the chief judge of the circuit.12

As with all affirmative defenses, the defendant bears the burden of production at trial. Generally, the defendant must present enough evidence to create some doubt of sanity. The states are split on the issue of persuasion. Some require that the prosecution disprove the insanity claim, usually beyond a reasonable doubt. In other jurisdictions the defendant bears the burden of persuasion, usually by preponderance of the evi- dence. One exception is federal law, which requires the defendant to prove insanity by the higher standard—clear and convincing evidence.13

Disposition of the Criminally Insane Contrary to popular belief, those adjudged insane by a criminal proceeding are not im- mediately and automatically released. In most jurisdictions, after a defendant has been determined “not guilty by reason of insanity,” the court (the jury in a few states) must make a determination of whether the person continues to be dangerous. If so, commit- ment is to be ordered. If the defendant is determined not to be dangerous, then release follows. A few jurisdictions have followed the Model Penal Code approach,14 which requires automatic commitment following a finding of not guilty by reason of insanity. This is the rule in the federal system.15

In theory, those committed have a right to be treated for their mental disease. In fact, due to lack of funds, security concerns, and overcrowding problems in facilities, adequate treatment is often not provided.

Once a committed person is no longer a danger, release is granted. The de- termination of dangerousness is left to the judge, not hospital administrators or mental health professionals—an often-criticized practice. Patients, doctors, gov- ernment officials, and even the judge can begin the process of release. Some states provide for periodic reviews of the patient’s status in order to determine the pro- priety of release. The relevant federal statute reads, in part:16

When the director of the facility in which an acquitted person is hospitalized . . . determines that the person has recovered from his mental disease or defect to such an extent that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would no longer create a substantial

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Insanity at the Time of Trial The United States Supreme Court has held that a defendant who is insane at the time of trial may not be tried.20 The Court found that the Due Process Clauses of the Fifth and Fourteenth Amendments require that defendants be able to assist in their defense and understand the proceeding against them.

The test for determining insanity in this context is different from that discussed earlier. Insanity exists when defendants lack the capacity to understand the proceedings or assist in their defense. This simply means that defendants must be rational, possess the ability to testify coherently, and be able to meaningfully discuss their cases with their

risk of bodily injury to another person or serious damage to property of another, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment . . . The court shall order a discharge of the acquitted person or, on the motion of the attorney for the government or on its own motion, shall hold a hearing [to determine if the patient is dangerous].

At that hearing, the defendant has the burden of proving by clear and convincing evidence that a risk to people or property is not created by release.

Finally, some states have a “guilty but mentally ill” verdict. Juries may return such a verdict when the defendant’s illness does not rise to the level of negating culpability but treatment should be provided in addition to incarceration (see Exhibit 8–1).

imPACt Of tHe insAnity Defense

In spite of the popular media attention it receives and the strong feelings it engenders, the insanity defense is not widely asserted and rarely results in not guilty verdicts. One author notes that defense is raised in only 1 percent of felony cases in the United States, and it succeeds in only about 25 percent of the cases in which it is asserted. This computes to about 300 insanity pleas per state per year.17 Another researcher examined nearly 1 million cases and found that insanity was claimed in about one in a thousand cases and was successful in 29% of the time. It was discovered than when successful, it was rare for the jury to make the decision. In most cases the decision was a product of negotiation among the defendant, police, and prosecutor.18 Other researchers also have found that the vast majority of the individuals who assert insanity suffer from a mental illness that is so serious that prosecu- tors support pleas of not guilty by reason of insanity or guilty but mentally ill. In a study of criminal cases in Tennessee, researchers found that 7% of defendants were referred for mental examination, and of that 7%, 19% sub- sequently asserted the insanity defense, and of that number, the prosecutors supported the pleas in 72% of the cases (less than 1% of all cases).19

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266 Part I Criminal Law

Exhibit 8–1 INSANITY AND CRIMINAL PROCEDURE

DEFENDANT ARRESTED

DEFENDANT FORMALLY CHARGED

Defendant determined competent to stand trial

SANITY ISSUE RAISED

Guilty verdict

Defendant determined incompetent to stand trial

Sentencing If guilty, but mentally ill verdict issued, treatment is provided in addition to punishment

Defendant institutionalized until not dangerous to person or property

Trial—Two issues 1. Jury decides guilt or innocence If guilty, then court or jury must decide issue 2 2. Sanity issue

Defendant institutionalized until competent to stand trial

When competent

Not guilty by reason of insanity

Acquittal

The government occasionally decides to dismiss the criminal charges and pursue civil commitment of defendant

lawyers. The burden of establishing incompetence is placed on the defendant in many jurisdictions. While this procedure comports with due process, requiring the defendant to establish incompetence by clear and convincing evidence does not. In Cooper v. Oklahoma (1996),21 the Supreme Court held that the burden of proof can be placed on the defendant but that the standard of proof cannot exceed preponderance of evidence.

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Chapter 8: Factual and Statutory Defenses 267

If defendants are unable to stand trial because they are insane, they are usually committed until they are competent. Many statutes have mandatory commitment of defendants determined incompetent to stand trial. However, indefinite confinement is unconstitutional, based solely upon a finding of incompetence to stand trial. Generally, the Supreme Court has held that a lengthy (18 months or longer) detention (await- ing competence to stand trial) is tantamount to punishment and violative of the Due Process Clause.22 In such cases, there must be a separate finding of dangerousness to continue to hold such persons.

A mistrial is to be declared in the event that a defendant becomes incompetent during a trial, and defendants who are sane at trial but become insane before sentencing should be sentenced to a psychiatric facility.

Last, the Supreme Court has held that a person who has become insane after be- ing sentenced to death may not be executed until his or her sanity is regained.23 The constitutional basis of the Court’s decision was the Eighth Amendment’s prohibition of cruel and unusual punishment. Thurgood Marshall penned, “It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental ill- ness prevents him from comprehending the reasons for the penalty or its implications.”24 Similarly, the Court has held that mentally retarded individuals may not be executed.25

Although not a defense, the issue of insanity during imprisonment and at the time of release is important. See Chapter 4 for a discussion of civil commitment of sex of- fenders and the dangerously mentally ill after release from prison.

Duress AnD neCessity On September 5, 2012, the manager of a bank in Los Angeles, California, arrived at work shortly before opening, went to the vault and filled a bag with cash, proceeded to the back door, and threw the bag into the street, where two people were waiting and absconded with the money. Did the manager commit a crime? No. The night before the robbery, she was kidnapped by the two robbers. The morning of the robbery, they strapped a device to her chest, telling her that it was a bomb and that they would deto- nate it if she didn’t comply with their directions. The device was removed by police and proved not be a bomb.26

Although the elements of theft may be satisfied, the manager acted under duress, a legal defense. To prove duress, one must show (1) that he or she was threatened (2) and that the threat caused a reasonable belief (3) that the only way of avoiding serious personal injury or death to oneself or others (4) was to commit the crime. Duress was recognized at common law and continues to be a statutory defense today.

First, it must be shown that a threat was made. Second, the threat must create a reasonable fear of immediate serious bodily harm or death. This fear must be reasonable; that is, even if the person making the threat had no intention of following through, the defense is still valid if a reasonable person would have thought the threat was real. Hence, even if bank robber never intended to kill Terry, she has the defense of duress. Terry need not be the one threatened for her to be able to claim duress. So, if bank robber threatened

duress

■ Unlawful pressure on

what a person would not

otherwise have done. It

includes force, threats

of violence, physical

restraint, etc.

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268 Part I Criminal Law

to kill a customer unless Terry complied, Terry could claim duress. The fear must not only be reasonable, but it must also be of serious bodily injury or death. If bank robber exclaims, “Put the money in the bag or I’ll smack you across the face,” the threatened danger is not sufficient to support the defense of duress. In addition, the threat of harm must be imminent or immediate. Threats of future harms are not adequate duress.

One limitation that is recognized nearly everywhere is that murder is not justified by duress. This rule is criticized, rightfully so, because it does not account for those situations where taking one life may save many more.

It is no defense to a crime to claim that one was only carrying out the orders of a superior, such as an employer or military superior. This issue was addressed in United States v. Calley.

The Court mentioned that the order’s illegality was “apparent upon even cursory evaluation by a man of ordinary sense and understanding.” What if an order appears to be legal and the person who follows it has a reasonable belief of its legality? In such cases, the defense of duress does applies.27

Necessity is similar to duress. However, whereas duress is created by human pressures, necessity comes about by natural forces. When people are confronted with two choices, both causing harm, they choose the lesser harm. If they do, they may have the defense of necessity to the act taken. For example, a person may be justified in breaking into some- one’s cabin to avoid freezing to death. Or a captain of a ship may be justified in a trespas- sory use of another’s dock, if setting ashore is necessary to save the ship and its passengers.

Necessity is a broad and amorphous concept. As a general proposition, it applies anytime a person is confronted with the task of choosing between two or more evils. The harm avoided need not be bodily injury; it can also be harm to property. Of course, choosing property over life is never justified. Finally, if an alternative existed that involved less harm than the chosen act, the defense is invalid.

Duress and necessity are complete defenses. When valid, they result in acquittal of all related charges.

necessity

■ Often refers to a

situation that requires an

action that would otherwise

be illegal or expose a

person to tort liability.

[D]uring midmorning on 16 March 1968 a large number of unresisting Vietnamese were placed in a ditch on the eastern side of My Lai and summarily executed by American soldiers.

[PFC] Meadlo gave the most graphic and damn- ing evidence. He had wandered back into the village alone after the trial incident. Eventually, he met his fire team leader, Specialist Four Grzesik. They took

seven or eight Vietnamese to what he labeled a “ravine,” where Lieutenants Calley, Sledge, and Dursi and a few other Americans were located with what he estimated as seventy-five to a hun- dred Vietnamese. Meadlo remembered also that Lieutenant Calley told him, “We got another job to do, Meadlo,” and that the appellant started shoving people into the ravine and shooting them. Meadlo,

UNITED STATES V. CALLEY 46 C.M.R. 1131 (1975)

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Chapter 8: Factual and Statutory Defenses 269

use-Of-fOrCe Defenses A homicide on February 26, 2012, in Florida focused the Nation’s attention on several criminal justice problems, including race, the role of citizens in preventing and responding to crime, and the law of self-defense. George Zimmerman, a Hispanic 28-year-old commu- nity watch leader, shot and killed Treyvon Martin, a 17-year-old African American male. Zimmerman was charged with Martin’s homicide, Zimmerman asserted self-defense.28

On the night of the shooting, Martin was visiting with his father and his father’s fiancée. While watching television, Martin left the home to walk to a convenience store. Martin trespassed through Zimmerman’s neighborhood during his walk. Zimmerman ob- served Martin in the neighborhood during Martin’s return from the store. Finding his pres- ence suspicious, Zimmerman followed him, called the police, is alleged to have ignored a suggestion to discontinue the pursuit by the police dispatcher, and confronted and shot Martin. Zimmerman was charged with second degree murder, tried by jury, and acquitted.

Claims that Zimmerman had a racial motivation for pursuing Martin contributed to making the incident a national cause célèbre. As it too often the case, there was a media frenzy and a prejudicial rush to judgement. Of the many social and legal ques- tions that the Treyvon Martin homicide raised, one concerns the nature of self-defense. The defense varies between the states.

All states permit the use physical force against others in specific circumstances. Self-defense, defense of others, defense of property, and use of force to make arrests fall

UNITED STATES V. CALLEY (continued)

in contrast to Dursi, followed the directions of his leader and himself fired into the people at the bot- tom of the “ravine.” Meadlo then drifted away from the area but he doesn’t remember where.

Specialist Four Grzesik found PFC Meadlo, crying and distraught, sitting on a small dike on the eastern edge of the village. He and Meadlo moved through the village, and came to the ditch, in which Grzesik thought were thirty-five dead bodies. Lieutenant Calley walked past and ordered Grzesik to take his fire team back into the village and help the following platoon in their search. He also remembered that Calley asked him to “finish them off,” but he refused.

Specialist Four Turner saw Lieutenant Calley for the first time that day as Turner walked out of the vil- lage near the ditch. Meadlo and a few other soldiers

were also present. Turner passed within fifteen feet of the area, looked into the ditch and saw a pile of approximately twenty bodies covered with blood. He saw Lieutenant Calley and Meadlo firing from a distance of five feet into another group of people who were kneeling and squatting in the ditch . . . .

Of the several bases for his argument that he committed no murder at My Lai because he was void of mens rea, appellant emphasized most of all that he acted in obedience to orders . . . .

An order of the type appellant says he re- ceived is illegal. Its illegality is apparent upon even cursory evaluation by a man of ordinary sense and understanding . . . .

We find no impediment to the findings that ap- pellant acted with murderous mens rea, including premeditation.

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into this area. Self-defense, defense of others, and defense of property, when successful, are complete defenses. Imperfect self-defense (including defense of another) does not lead to acquittal; however, it does reduce murder to manslaughter.

Self-Defense To prove self-defense, it must be shown that the actor (1) was confronted with an unprovoked, (2) immediate threat of bodily harm, (3) that force was necessary to avoid the harm, (4) and that the amount of force used was reasonable.

One who initiates an attack on another cannot claim self-defense, as a general proposition. There are two exceptions to this rule. First, if attackers are met with ex- cessive force in return, they may defend themselves. For example, Mike attacks Norm with his fists, and in defense Norm uses a deadly weapon. In such a circumstance, Mike may also use deadly force to protect himself. Second, if an attacker withdraws from the attack and is pursued by the intended victim, then he or she may claim self-defense. Suppose Randy attacks Sue with an intent to sexually assault her. After he grabs her, she displays a gun, and he runs. If Sue follows after him, intending to cause him harm, then he would be privileged to use force to defend himself.

The threat of harm must be immediate in most jurisdictions. Threat of future harm does not justify using force against another. To satisfy this requirement, the harm must be one that will occur unless force is used, and no other means of avoid- ing the harm exists. However, this principle is occasionally stretched. For example, some jurisdictions have permitted a jury to be instructed on the battered woman syndrome defense. Under this defense, a woman who is constantly abused by her husband may be justified in using force at a time when she is not strictly in “immedi- ate danger.” The theory is that women in such circumstances have two choices: either wait for their husbands to kill them or strike first in a form of offensive self-defense. Critics of this defense contend that because other remedies are available, such as leav- ing the husband and obtaining a court order restraining him from bothering her, there is no immediate danger.

Finally, the force used to defend oneself must be reasonable. It would be unreason- able to knife a person who is attempting to slap one’s hand. Deadly force may be used to defend against an attack that threatens serious bodily injury or death. Deadly force may not be used to defend against other attacks.

Retreat, Castle, and Stand-Your-Ground Many states require that a person retreat from an attack, if possible, before using deadly force. This is known as the retreat to the wall doctrine or simply the retreat doctrine. But there are exceptions.

The first exception is when retreating poses a danger to the victim of the attack. Another is for police officers, who are not required to retreat when performing their law- ful duties. The Model Penal Code has a retreat provision that recognizes these exceptions:

The use of deadly force is not justifiable . . . [if ] the actor knows that he can avoid the necessity of using such force without complete safety by retreating or by surrendering

self-defense

■ Physical force used

against a person who is

threatening the use of

physical force or using

physical force.

battered woman syndrome

■ Continuing abuse of a

woman by a spouse

or lover, and the resulting

physical or psychological

harm.

retreat to the wall

■ The doctrine that before

a person is entitled to

use deadly force in self

defense, he or she must

attempt to withdraw from

the encounter by giving as

much ground as possible.

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Chapter 8: Factual and Statutory Defenses 271

possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that (1) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor.29

The Code provides that public officials need not retreat during the performance of their duties. There is no duty to retreat rather than using nondeadly force.

Also, notice that the Code requires not only retreat, but that “thing[s]” be surren- dered and one comply with another’s demands before deadly force is used. Of course, one can later use civil law to recover unlawfully taken items or to recover for complying with a demand that caused damage. The aggressor will be liable both civilly and crimi- nally for such unlawful demands.

Most states, for example, do not require one to retreat from his or her home. This is known as the castle doctrine. The castle doctrine dates to the old common law. Indeed the phrase “A man’s home is his castle” is of ancient English origin. The castle doctrine reflects the idea that the home is a very special place, a venue that is inviolable by outsiders and where the residents can feel their safest and live free from intrusion.

There are different versions of the castle doctrine between the states where it is recognized. Castle doctrine statutes commonly include one or more of the following:

1. Repeal of the common law retreat doctrine for lawful residents of homes who use deadly force against an intruder into the home.

2. The creation of a presumption that intruders are a threat to life or limb. 3. Immunity from criminal and civil liability for residents of homes who use deadly

force on intruders.

As to the first of these, there are common exceptions. For example, deadly force may not be used against people who have a lawful right to be on the premises. Police officers and family members are examples. This isn’t to say that an ex-wife can’t use deadly force against a homicidal ex-husband who happens to be a police officer. The statutes typically deny the castle doctrine defense to residents who use deadly force against individuals they should reasonably know are lawfully entering the premises.

Another variation on the home element of the castle doctrine is the inclusion of more than homes in its grasp. For example, Ohio has extended the castle doctrine to include automobiles. The applicable statute provides that “Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.”30

A minority, but growing number of states, have so-called stand-your-ground laws.31 Florida, the location of the Zimmerman shooting of Martin, is such a state.

Castle Doctrine

■ An exception to the

Retreat Doctrine, one has no

obligation to retreat from his

or her home before using

deadly force to repel an

intruder.

stand-your-ground

■ A law that enables a

person to use deadly force to

repel an attack without first

retreating.

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Stand-your-ground laws are essentially the extension of the castle doctrine to public spaces. A victim of an attack that threatens life or limb in any space, not just the home or car, does not have a duty to retreat, even if a safe retreat is available. Florida’s law provides, in part:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

As the second dimension, reasonable force, states vary between requiring the use of deadly force to be objectively reasonable to creating a presumption of reasonable fear of life or limb by intruders in the home. The difference between the two is procedural. If the former, the law permits the use of deadly force without retreat but the person who used the force may bear the burden of proving to the jury that her fear was reasonable. If the latter, the law presumes the fear was reasonable and the burden falls to the state to prove it was unreasonable. Florida shifts the burden to the state to prove that the fear was unreasonable:

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

* * * (4) A person who unlawfully and by force enters or attempts to enter a person’s

dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.32

The third dimension of most castle doctrine statutes is the creation of civil liability for individuals who use deadly force in a manner recognized by the statutes. Of course, liability may be found if the person using force is found to have acted outside the pro- tection of the castle doctrine statute, e.g., used force unreasonably.

United States’ law of self-defense has evolved considerably since the old common law and the variation between the states is considerable. See Exhibit 8–2 for a continuum of the right to use deadly force as a form of self-defense.

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Chapter 8: Factual and Statutory Defenses 273

Defense of Others It is also a justified use of force to defend another. The rules are similar to that of self-defense: There must be a threat of immediate danger to the other person; the perception of threat must be reasonable; the amount of force used must be reasonable; and deadly force may be used only to repel a deadly attack.

At common law, one was privileged to defend only those with whom a special relationship existed, such as parent and child. Today, most jurisdictions permit any person to use force to protect another.

What happens when a person uses force to defend another who is not privileged to use force? For example, Perry is an undercover police officer attempting to arrest Norm, who is resisting. Randa observes what is happening and comes to Norm’s defense, be- lieving that Norm was being unlawfully attacked. There is a split of authority concern- ing this problem. Some jurisdictions limit the authority of the defender to use force to the privilege held by the person being attacked. Because Norm was not privileged to use force against the police officer, Randa is guilty of assault. Other states, however, use an objective test. Under such a test, if a reasonable person standing in Randa’s shoes would have believed that force was justified, then he or she would be acquitted.

Defense of Property and Habitation At common law and by legislative enactment today, one may use force to defend prop- erty. As with defending oneself, only reasonable force may be used. Because property is not as valuable as life, deadly force may not be used to protect property. Thus, one must allow another to take or destroy property before killing to defend it. No force is reason- able if other methods of protecting the property were available. So, if one has ample

Exhibit 8–2 DEADLY FORCE CONTINUUM

Self-Defense

Castle Doctrine

Least Protection Greatest Protection

Retreat to Wall Castle Doctrine Plus

Castle Doctrine Enhanced

Stand- Your-Ground

Duty to retreat, even in the home, before using deadly Force

Deadly Force may be used by residents of homes against intruders without first retreating. Person using deadly force may have to prove it was reasonable.

The use of deadly force by the resident of a home is presumed reasonable, unless the victim had fight to enter premises.

Castle Doctrine is extended to cars or other venues.

Deadly Force may be used to repel an attacker in any location without first retreating, so long as reasonable attacker threatens life or limb.

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time to seek assistance from the police or the courts, force would be unreasonable. In contrast, if an enemy appears at one’s house and begins to destroy a car in the driveway, force would be permitted to protect the vehicle. Actors must have a reasonable belief that their property is in danger of trespass or destruction and that the force used was necessary to defend the property.

The basic rules concerning defense of property also apply to defense of habita- tion: One must have a reasonable belief that the property is threatened; only reason- able force may be used to protect the property; and other non-violent remedies must be utilized before resorting to force. However, one difference between dwellings and other property is that deadly force may be used, under some circumstances, to protect one’s home.

In early common law, the security of the home was as important as life itself. Therefore, people were permitted to use deadly force against any forcible intruder after warning the person not to enter. Today the rule has been narrowed, and statutes now commonly require that the occupant must believe that the intruder intends to commit a felony once inside before deadly force may be used.

The Model Penal Code allows the use of deadly force if either (1) the intruder is at- tempting to take the dwelling (with no legal claim to do so) or (2) the intruder is there to commit a crime (arson, burglary, theft) and has threatened deadly force or poses a substantial risk to those inside.33

This provision of the Code incorporates a self-defense concept. Remember, the rules of self-defense apply in the home also. So, any time a person’s life (or another’s) is threatened, deadly force may be used.

Some people choose to protect their property with manmade devices, such as elec- tric fences and spring guns. Others have used natural protection, such as dogs and snakes. Whichever is used, the rules are the same. If the device employs nondeadly force, it is likely to be lawful. An electric fence that does not have sufficient electric current to kill is a justified use of force.

However, the result is often different when one uses deadly force. There are two perspectives on the use of deadly traps to protect property. One permits the use of deadly force so long as those who set the trap would have been permitted to use such force themselves, if they had been present. So, if a murderer gains entry to a house and is killed by a spring gun, the occupant is not criminally liable because he or she would have been privileged to use deadly force against the murderer. The second perspective, adopted by the drafters of the Model Penal Code, rejects the use of deadly traps in all instances.34 This position is sound, as deadly traps do not discriminate between the dangerous and the nondangerous. The occupant who sets such a trap is simply lucky if the intruder is a criminal and not a firefighter responding to a blaze in the home.

Imperfect Self-Defense The so-called imperfect self-defense is actually a mens rea defense. It applies to situa- tions when people cannot make a successful self-defense (or defense of another) claim, but because they lacked malice aforethought (or purpose), the crime should not be

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murder but, rather, manslaughter. The defense applies only to homicides and is not recognized everywhere.

As stated, a person must have a reasonable belief that he or another is in danger of serious bodily injury or death before deadly force may be used. What if a person possesses a good-faith but unreasonable belief? Self-defense is unavailable, but be- cause there is no malicious intent, purpose, or malice aforethought (depending on the jurisdiction’s definition of murder), the crime is reduced to manslaughter. The defense is available in a second situation: whenever people who initiates an attack using non- deadly force later justifiably the use deadly force to defend themselves.

Arrests Sometimes it is necessary for law enforcement officers to use force to execute their du- ties and to defend themselves. When a police officer uses force in defense of another’s attack, the rules of self-defense that you have already learned apply. In addition, be- cause the use of force is an integral part of law enforcement, it is often justified. How- ever, a person making an arrest does not have an unlimited right to use force against an arrestee. This section examines a person’s right to resist an unlawful arrest, the so-called citizen’s arrest, and arrests by law enforcement officers.

Resisting Unlawful Arrests In some states, people may use force to resist an unlawful arrest. The amount of force is usually limited to nondeadly, although some jurisdictions permit one to use deadly force. Of course, if a person uses force against a lawful arrest, he or she is fully liable for whatever crime results (assault, battery, or murder), as well as for resisting a lawful arrest.

The rule permitting force to resist an unlawful arrest evolved during a time when arrestees were detained for long periods before appearing before a court, jail conditions were extremely poor, and no civil remedies existed for unlawful arrests. In light of these harsh facts, public policy was best served by permitting people to resist unlawful arrests.

Today, many jurisdictions have adopted an approach closer to the Model Penal Code’s, which prohibits any resistance to an arrest by a law enforcement officer. This is the sensible approach, as the reasons for permitting resistance no longer exist: Arrestees must be promptly brought before judges and released if there is no probable cause. When available, bail is set immediately. Also, federal law now permits civil suits against law enforcement officers for violation of a person’s civil rights. Prohibiting resistance advances two important public policy objectives: First, it fosters obedience to police, and, second, it reduces violence.

Arrests by Law Enforcement Officers A law enforcement officer is privileged to use reasonable force to apprehend criminals and to prevent those incarcerated from escaping. At common law, police could use all but deadly force to arrest misdemeanants and deadly force to arrest felons. This latter rule was justified by the fact that all felons were put to death at early common law.

In 1974 a Memphis, Tennessee, police officer shot and killed a 15-year-old male who was fleeing a burglary. The boy had stolen 40 dollars. The family of the deceased

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boy sued the police department in federal court for violating his constitutional rights. The case ended up before the United States Supreme Court.

In Tennessee v. Garner, 471 U.S. 1 (1985), the Court held that the use of deadly force by a police officer is a “seizure” under the Fourth Amendment. Accordingly, the test used to determine whether the use of deadly force is proper is the Fourth Amend- ment’s test: reasonability. The Court then held that the use of deadly force is reasonable only when the person fleeing is a dangerous felon. This finding invalidated the laws of many states that permitted the use of deadly force to stop all fleeing felons, including those who posed no threat to life or limb, such as thieves, extortionists, and those who tendered bad checks. The Court did not state what standard must be applied in cases of nondeadly force. Some courts applied a due process standard, others the Fourth Amendment’s reasonableness standard.

In 1989 the Court handed down Graham v. Connor, 490 U.S. 386 (1989) in which the standard was set for all preconviction seizures, deadly and nondeadly. Through that decision, the Court held that all seizures are to be evaluated under the Fourth Amend- ment objective reasonableness standard. Specifically the Court held that courts must review challenged use of force from the perspective of a reasonable officer at the time the force was applied.

High-speed police chases have received considerable public attention in recent years because they pose a threat not only to the police officer and the person fleeing, but to the general public. Whether Garner applied to these chases was not known until 2007.

Finally, note that police officers are often put into positions where they must defend themselves, such as during an arrest. The same rules discussed earlier concerning self- defense apply in these situations, with one exception: Police officers are not required to retreat. Thus, if a police officer is involved in an arrest that involves escalating violence, the police officer may have to use deadly force to defend against the criminal’s attack.

Justice Scalia delivered the opinion of the Court. We consider whether a law enforcement

official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public—endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?

In March 2001, a Georgia county deputy clocked respondent’s vehicle traveling at 73 miles per hour on a road with a 55-mile-per-hour speed limit. The deputy activated his blue flashing lights indicating that respondent should pull over. Instead, respon- dent sped away, initiating a chase down what is in most portions a two-lane road, at speeds exceeding 85 miles per hour. The deputy radioed his dispatch to report that he was pursuing a fleeing vehicle,

SCOTT V. HARRIS 550 U.S. 372 (2007)

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and broadcast its license plate number. Petitioner, Deputy Timothy Scott, heard the radio communica- tion and joined the pursuit along with other officers. In the midst of the chase, respondent pulled into the parking lot of a shopping center and was nearly boxed in by the various police vehicles. Respondent evaded the trap by making a sharp turn, colliding with Scott’s police car, exiting the parking lot, and speeding off once again down a two-lane highway.

Following respondent’s shopping center ma- neuvering, which resulted in slight damage to Scott’s police car, Scott took over as the lead pursuit vehicle. Six minutes and nearly 10 miles after the chase had begun, Scott decided to attempt to termi- nate the episode by employing a “Precision Inter- vention Technique (’PIT’) maneuver, which causes the fleeing vehicle to spin to a stop.” Having radi- oed his supervisor for permission, Scott was told to “ ‘[g]o ahead and take him out.’ ” Harris v. Coweta County, 433 F.3d 807, 811 (CA11 2005). Instead, Scott applied his push bumper to the rear of respondent’s vehicle. As a result, respondent lost control of his vehicle, which left the roadway, ran down an em- bankment, overturned, and crashed. Respondent was badly injured and was rendered a quadriplegic.

Respondent filed suit against Deputy Scott and others under Rev. Stat. § 1979, 42 U.S.C. § 1983, al- leging, inter alia, a violation of his federal constitu- tional rights, viz. use of excessive force resulting in an unreasonable seizure under the Fourth Amend- ment. In response, Scott filed a motion for summary judgment based on an assertion of qualified immu- nity. The District Court denied the motion, finding that “there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury.” On interlocutory appeal, the United States Court of Appeals for the Eleventh Circuit affirmed

the District Court’s decision to allow respondent’s Fourth Amendment claim against Scott to proceed to trial (citation omitted). Taking respondent’s view of the facts as given, the Court of Appeals concluded that Scott’s actions could constitute “deadly force” under Tennessee v. Garner, 471 U.S. 1 (1985), and that the use of such force in this context “would violate [respondent’s] constitutional right to be free from excessive force during a seizure. Accordingly, a reasonable jury could find that Scott violated [re- spondent’s] Fourth Amendment rights.” The Court of Appeals further concluded that “the law as it existed [at the time of the incident], was sufficiently clear to give reasonable law enforcement officers ‘fair notice’ that ramming a vehicle under these circum- stances was unlawful.” The Court of Appeals thus concluded that Scott was not entitled to qualified immunity. We granted certiorari, 549 U.S. __ (2006), and now reverse . . . .

In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the ini- tial inquiry.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If, and only if, the court finds a violation of a con- stitutional right, “the next, sequential step is to ask whether the right was clearly established . . . in light of the specific context of the case.” Although this order- ing contradicts “[o]ur policy of avoiding unnecessary adjudication of constitutional issues,” we have said that such a departure from practice is “necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.” We therefore turn to the threshold inquiry: whether Dep- uty Scott’s actions violated the Fourth Amendment.

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III

The first step in assessing the constitutionality of Scott’s actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and respondent’s version of events (unsurprisingly) differs substantially from Scott’s version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing the [summary judgment] motion.” In qualified immunity cases, this usually means adopting (as the Court of Appeals did here) the plaintiff’s version of the facts.

There is, however, an added wrinkle in this case: existence in the record of a videotape captur- ing the events in question. There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals (citation omitted). For example, the Court of Appeals adopted respondent’s asser- tions that, during the chase, “there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty and [respondent] re- mained in control of his vehicle.” Indeed, reading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test:

“[T]aking the facts from the non-movant’s view- point, [respondent] remained in control of his vehi- cle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pe- destrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the

parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.”

The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their re- spective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable peri- ods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.

At the summary judgment stage, facts must be viewed in the light most favorable to the non- moving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmov- ing party, there is no ‘genuine issue for trial . . . . [T]he mere existence of some alleged factual dispute between the parties will not defeat an oth- erwise properly supported motion for summary judgment; the requirement is that there be no gen- uine issue of material fact.” When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that

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version of the facts for purposes of ruling on a motion for summary judgment.

That was the case here with regard to the fac- tual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the re- cord that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the Fourth Amendment. Scott does not contest that his deci- sion to terminate the car chase by ramming his bumper into respondent’s vehicle constituted a “sei- zure.” “[A] Fourth Amendment seizure [occurs] . . . when there is a governmental termination of free- dom of movement through means intentionally ap- plied.” It is also conceded, by both sides, that a claim of “excessive force in the course of making [a] . . . ‘seizure’ of [the] person . . . [is] properly analyzed under the Fourth Amendment’s ‘objective reason- ableness’ standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). The question we need to answer is whether Scott’s actions were objectively reasonable.

Respondent urges us to analyze this case as we analyzed Garner, 471 U.S. 1. We must first decide, he says, whether the actions Scott took constituted “deadly force.” (He defines “deadly force” as “any use of force which creates a substantial likelihood of causing death or serious bodily injury,” id., at 19.) If so, respondent claims that Garner prescribes cer- tain preconditions that must be met before Scott’s actions can survive Fourth Amendment scrutiny: (1) The suspect must have posed an immediate threat of serious physical harm to the officer or oth- ers; (2) deadly force must have been necessary to

prevent escape; and (3) where feasible, the officer must have given the suspect some warning. Since these Garner preconditions for using deadly force were not met in this case, Scott’s actions were per se unreasonable.

Respondent’s argument falters at its first step; Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an offi- cer’s actions constitute “deadly force.” Garner was simply an application of the Fourth Amendment’s “reasonableness” test, to the use of a particular type of force in a particular situation. Garner held that it was unreasonable to kill a “young, slight, and unarmed” burglary suspect, 471 U.S., at 21, by shooting him “in the back of the head” while he was running away on foot, and when the officer “could not reasonably have believed that [the sus- pect] . . . posed any threat,” and “never attempted to justify his actions on any basis other than the need to prevent an escape”. Whatever Garner said about the factors that might have justified shooting the suspect in that case, such “precondi- tions” have scant applicability to this case, which has vastly different facts. “Garner had nothing to do with one car striking another or even with car chases in general . . . . A police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.” Nor is the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by respondent in this case. Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amend- ment context is admirable, in the end we must still slosh our way through the factbound morass of “reasonableness.” Whether or not Scott’s ac- tions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable.

SCOTT V. HARRIS (continued)

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In determining the reasonableness of the manner in which a seizure is effected, “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental inter- ests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983). Scott defends his actions by pointing to the paramount governmental interest in ensuring public safety, and respondent nowhere suggests this was not the purpose moti- vating Scott’s behavior. Thus, in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate. Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase. See Part III-A, supra. It is equally clear that Scott’s actions posed a high likelihood of serious injury or death to respondent—though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head or pulling alongside a fleeing motorist’s car and shooting the motorist. So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it ap- propriate in this process to take into account not only the number of lives at risk, but also their rela- tive culpability. It was respondent, after all, who in- tentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those

who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.

But wait, says respondent: Couldn’t the inno- cent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas Scott’s action—ramming respon- dent off the road—was certain to eliminate the risk that respondent posed to the public, ceasing pur- suit was not. First of all, there would have been no way to convey convincingly to respondent that the chase was off, and that he was free to go. Had re- spondent looked in his rear-view mirror and seen the police cars deactivate their flashing lights and turn around, he would have had no idea whether they were truly letting him get away, or simply devising a new strategy for capture. Perhaps the police knew a shortcut he didn’t know, and would reappear down the road to intercept him; or per- haps they were setting up a roadblock in his path. Given such uncertainty, respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow (citation omitted).

Second, we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse in- centives such a rule would create: Every fleeing mo- torist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this invitation to impunity- earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer’s attempt to terminate a dangerous high- speed car chase that threatens the lives of innocent

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Arrests by Citizens At common law, private citizens were privileged to arrest those who committed a felony or misdemeanor (which amounted to a breach of the peace) in their presence. Some jurisdictions have retained this rule, and others have changed it by statute.

In jurisdictions that have changed the rule, it is common to permit so-called citizens’ arrests any time probable cause exists to believe that the person has committed a felony. In most jurisdictions a citizen may not arrest a misdemeanant unless the person making the arrest witnessed the crime. Even in such cases, only certain misdemeanors may lead to such an arrest.

The reason for these rules is to provide citizens who make such arrests with immunity from civil and criminal prosecution. However, the citizen must be privileged to make the arrest and, even when privileged, a reasonable amount of force must be used.

In some jurisdictions, a private person making an arrest may use deadly force only when the person is in fact a felon. The jurisdictions employing this rule are split: Some permit the use of deadly force by private citizens to arrest for any felony and others only for specific felonies (e.g., murder and rape). These jurisdictions are similar in one important regard. The person against whom the deadly force is used must have in fact committed the crime. A reasonable, but incorrect, belief that the person has committed a crime is not a defense. So, if Pat kills Sam while attempting to arrest Sam for a crime he did not commit, Pat is liable for manslaughter, even though she had a reasonable belief that he committed the crime. Some states have followed the Model Penal Code approach, which prohibits the use of deadly force by private persons in all circumstances.35

The results are different if a private person is assisting a law enforcement officer. In fact, many states have statutes that require citizens to assist police officers upon or- der. In such cases, the private party is privileged to use whatever force is reasonable. In addition, a private person responding to a police officer’s order to assist in an arrest is privileged, even if the police officer was exceeding his or her authority and had no cause to make the arrest. In such instances, the police officer may be liable for both his or her own actions and the actions of the private party summoned. Of course, there are limits to the rule. For example, a private person who obeys a police officer’s order to strike an already apprehended and subdued criminal would not be privileged.

bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.

The car chase that respondent initiated in this case posed a substantial and immediate risk of serious

physical injury to others; no reasonable jury could conclude otherwise. Scott’s attempt to terminate the chase by forcing respondent off the road was reason- able, and Scott is entitled to summary judgment. The Court of Appeals’ decision to the contrary is reversed.

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infAnCy At common law, it was a complete defense to a charge that the accused was a child under the age of seven at the time the crime was committed. It was irrebuttably presumed that children under seven were incapable of forming the requisite mens rea to commit a crime. A rebuttable presumption of incapacity existed for those between 7 and 14 years of age. The presumption could be overcome for those between 7 and 14 if the prosecution could prove that the defendant understood that the criminal act was wrong.

Few minors are charged with crimes today. This is the result of the advent of the juvenile court systems in the United States. Currently each state has a juvenile court system that deals with juvenile delinquency and neglected children.

Statutes vary, but it is common for juvenile courts to possess exclusive jurisdiction over criminal behavior of juveniles. However, some states give concurrent jurisdiction to criminal courts and juvenile courts. If concurrent, the juvenile court usually must waive jurisdiction before the criminal court can hear the case. Determining who is a juvenile also differs, with some jurisdictions utilizing a method similar to the common law (irrebuttable and rebuttable presumptions) and others simply setting an age cutoff, such as 14 or 16.

The purpose of the juvenile justice system differs from that of the criminal justice system. Whereas criminal law has punishment as one of its major purposes, the purpose of the juvenile system is not to punish but to reform the delinquent child.

intOxiCAtiOn In this context, intoxication refers to all situations in which a person’s mental or physical abilities are impaired by drugs or alcohol. It is generally said that voluntary intoxication is a defense if it has the effect of negating the required mens rea. In common-law language, this means that if intoxication prevents a defendant from being able to form a specific intent, then the crime is reduced to a similar general- intent crime. For the crime of murder, intoxication is a defense if it prevents the defendant from forming the premeditation, deliberation, or purposeful element. In such cases, the charge is reduced from first-degree to second-degree murder. Not all states recognize voluntary intoxication as a defense. The question whether a defendant has a due process right to have an intoxication defense heard by a jury was answered in the negative by the Supreme Court in the 1996 case Montana v. Engelhoff.36 The Court’s rationale for rejecting the right focused on the scientific ambiguity of the impact of intoxication on mens rea and the lack of consensus among the states in recognizing the defense.

In the rare case of involuntary intoxication in jurisdictions that permit the defense, the defendant is relieved of liability entirely. To be successful with such a claim, the defendant is required to show that the intoxication had the same effect as insanity. In jurisdictions using the M’Naghten test for insanity, a defendant is required to prove that the intoxication prevented him or her from knowing right from wrong.

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mistAKe People may be mistaken in two ways. First, one may believe that some act is legal when it is not. This is a mistake of law. Second, a person may not understand all the facts of a given situation. This is a mistake of fact. As a general proposition, mistake of fact is a defense, and mistake of law is not. However, many exceptions to each rule have been developed. A few of these exceptions are noted here.

Mistake of fact is a defense whenever it negates the mens rea aspect of a crime. For example, an intent to steal another’s property is an element of theft. If an attorney picks up a briefcase believing it to be his or hers when it is actually someone else’s, it is not theft. The mistake negates the intent to steal. To be valid, mistakes must be made honestly and in good faith.

Although honest mistakes of fact usually constitute a defense, there are exceptions. One exception is obvious: strict liability crimes, as there is no requirement of mens rea to negate.

In some instances, an honest but unreasonable mistake of fact may not eliminate culpability entirely; however, it may reduce the crime. The imperfect self-defense previ- ously discussed falls into this category.

We have all heard, if not quipped, “Ignorance of the law is no excuse.” As a general rule, this statement is true. There are two situations in which a person can make a mis- take of law. The first occurs when an individual is unaware that his or her actions are prohibited by statute: “I didn’t know it was against the law not to file a tax return!” The second occurs when a person takes an act, under the color of a legal right and in good faith, only to find out later that the act was illegal. For example, a landlord may have a reasonable, but mistaken, belief that she has a right to take possessions from a tenant’s house to satisfy a delinquent rent debt.

For the most part, unawareness that an act is illegal is not a defense. The law pre- sumes that everyone knows what is legal and what is not. Mistakes that fall into the second group act to negate mens rea and are more likely to be successful. The landlord in the example would not be guilty of larceny because of the mistake. Another example of such a defense is when a person has a reasonable, but mistaken, belief that he or she has the authority to take a person into custody. Therefore, officers who arrest people in good faith, but without probable cause, are not guilty of kidnapping or criminal confinement.

Another exception to the rule that mistake of law is no defense exists when a person relies on statutes, judicial opinions, or certain administrative decisions that later turn out to be wrong. The rule is sound for two reasons. First, as a matter of public policy, it is not wise to prosecute people for acting in conformity with the law. The result would be individual interpretation of all laws and disregard for those statutes, regulations, or judicial decisions believed incorrect. Second, as a matter of due process, it appears that no notice has been provided that compliance with the law will be punished.

Finally, one defense that is not accepted is reliance on the advice of counsel. If a lawyer advises a client that a particular act is legal when it is not, the client will be liable for the crime if the act is taken.

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entrAPment To what extent should police officers be permitted to encourage someone to commit a crime? This question underlies the defense of entrapment. Entrapment occurs when law enforcement officers encourage a person to commit a crime with the intent of arresting and prosecuting that person for the commission of that crime.

Perjury traps are another form of entrapment. Perjury traps are committed by prosecutors whenever they inquire of a witness as to matters that are tangential or pe- ripheral to an investigation in order to catch the witness in perjury.37

Entrapment is a defense of recent development, although all states and the federal government recognize some form of the defense today. There is no constitutional basis for the entrapment defense, so each jurisdiction is free to structure the defense in any manner. Of course, a state may also do away with the defense, although none have done so. This is a sound policy decision, as most people would agree that there must be some limit on police conduct. However, where the line should be drawn is debated. Currently two tests are used to determine whether a defendant was entrapped: the subjective and objective tests.

The test used in the federal system and most widely used by the states is the subjec- tive test. The test attempts to distinguish between those who are predisposed to commit crime from those who are not. The test is subjective; the defendant’s mental state at the time of the encouragement is imperative. A defendant is predisposed if he or she is ready to commit the crime and is only awaiting the opportunity. The Supreme Court has said that the subjective test is designed to draw a line between the “unwary innocent and the unwary criminal.”38

Under the subjective approach, evidence of the defendant’s criminal record may be relevant to show predisposition. For example, drug convictions may evidence a predis- position to enter into future drug purchases or sales.

The second method of determining whether a person was entrapped is objective. The Model Penal Code39 adopts this approach, as do a minority of states. The objective approach does not focus on the particular defendant’s predisposition, but asks whether the police conduct creates a “substantial risk that an offense will be committed by per- sons other than those who are ready to commit it.”40

The defendant’s actual state of mind is not relevant to this inquiry, and, accord- ingly, evidence of a defendant’s criminal history is irrelevant. Under this approach, defendants may be acquitted even though they were predisposed to commit the crime. Suppose a police officer offers a prostitute $150,000 for sex. The prostitute would have agreed had the officer offered $50. Using the subjective approach, the prostitute would be convicted because she was predisposed to engage in prostitution. However, in juris- dictions using the objective test, she may have been entrapped, as women who do not normally sell sex might be encouraged to do so for $150,000.

In many states entrapment may not be used to defend against crimes involving violence to people, such as battery and murder. The Model Penal Code also takes this view.

entrapment

■ The act of government

officials (usually police) or

agents inducing a person

to commit a crime that the

person would not have

committed without the

inducement.

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

Chapter 8: Factual and Statutory Defenses 285

alibi

■ (Latin) “Elsewhere”;

the claim that at the time

a crime was committed a

person was somewhere

else. [pronounce: al-eh-bi]

consent

■ Voluntary and active

agreement.

statute of limitation

■ Federal and state

statutes prescribing the

maximum period of time

during which various

types of civil actions and

criminal prosecutions

can be brought after the

occurrence of the injury or

the offense.

Alibi AnD COnsent Alibi and consent are two factual defenses. An alibi is a claim by a defendant that he or she was not present at the scene of the crime at the time it was committed. Whenever defendants assert an alibi, they are simply refuting the government’s factual claims. Alibi is an affirmative defense, and defendants are usually required to give the govern- ment notice of the alibi claim prior to trial. Alibi notice laws have been approved by the Supreme Court.41 Of course, the government must prove the elements of the crime (e.g., presence at the crime) beyond a reasonable doubt. This means that the defendant bears no burden in an alibi defense.

Victim consent is a defense to some crimes, such as rape or larceny. That is, if a person consents to sex or to give you his property, there is no crime. Consent is, how- ever, not a defense to many crimes, such as statutory rape, incest, child molestation, battery, and murder.

stAtutes Of limitAtiOn Many crimes must be prosecuted within a specified time after being committed. A statute of limitation sets the time limit. If prosecution is initiated after the applicable statute has expired, the defendant is entitled to a dismissal.

Statutes vary in length; and serious crimes, such as murder, have no limitation. Generally, the higher the crime in the jurisdiction’s classification system, the longer the statute. Statutes begin running when the crime occurs; however, statutes may be tolled in some situations. Tolling refers to stopping the clock. The time during which a defendant is a fugitive is commonly tolled. For example, assume that the limitation on felony assault is 6 years. The assault was committed on June 1, 2009. Normally, prosecution would have to be started by June 1, 2015. However, if the defendant was fugitive from June 1, 2009, to June 1, 2010, then the statute would be tolled, and the new date of limitation would be June 1, 2016. There is no limit to how long a tolling period may run.

In 2005, a defendant in New York was tried for the second time for one of a series of rapes he committed in 1970s. He became known as the Silver Springs rapist at the time of the attacks. His first trial had occurred 33 years earlier. It concluded with a hung jury, after which he fled the jurisdiction. This tolled the clock on the statute of limitation. While he was a fugitive, incriminating DNA evidence was recovered and DNA science developed into a reliable prosecution tool. He was eventually discovered and apprehended when he applied to purchase a gun in Georgia. He was extradited from Georgia to New York, where his DNA sample was collected. His sample not only connected him to the rapes in New York but to rapes in other states where DNA evidence existed. He was convicted at his second trial. Interestingly, the case caught the public’s attention and was a catalyst to a change in statute of limitations law in New York. Today, there is no limitation in rape cases.42

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

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