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Table of Contents
Chapter 1
Introduc�on to Criminal Law
Elementary notions of fairness enshrined in our constitutional
jurisprudence dictate that a person receive fair notice not only of the
conduct that will subject him to punishment but also of the severity of the
penalty that a State may impose.
- BMW of North America, Inc. v. Gore, cited in Section 1 "Damages"
1.1 Introduc�on
L E A R N I N G O B J E C T I V E
1. Define a crime.
This textbook introduces you to our legal system in the United States, the basic elements of a crime,
the specific elements of commonly encountered crimes, and most criminal defenses. Criminal law
always involves the government and government action, so you will also review the pertinent sections
of the United States Constitution and its principles as they apply to criminal law. By the end of the
book, you will be comfortable with the legal framework that governs the careers of criminal justice
professionals.
Defini�on of a Crime
Let’s begin at the beginning by defining a crime. The most basic definition of a crime is “an act
committed in violation of a law prohibiting it, or omitted in violation of a law ordering
it.”Yourdictionary.com, “Definition of Crime,” accessed August 15, 2010,
http://www.yourdictionary.com/crime. You learn about criminal act and omission to act in Chapter 4
"The Elements of a Crime". For now, it is important to understand that criminal act, omission to act,
and criminal intent are elements or parts of every crime. Illegality is also an element of every
crime. Generally, the government must enact a criminal law specifying a crime and its elements
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before it can punish an individual for criminal behavior. Criminal laws are the primary focus of this
book. As you slowly start to build your knowledge and understanding of criminal law, you will notice
some unique characteristics of the United States’ legal system.
Laws differ significantly from state to state. Throughout the United States, each state and the federal
government criminalize different behaviors. Although this plethora of laws makes American legal
studies more complicated for teachers and students, the size, cultural makeup, and geographic variety
of our country demand this type of legal system.
Laws in a democratic society, unlike laws of nature, are created by people and are founded in
religious, cultural, and historical value systems. People from varying backgrounds live in different
regions of this country. Thus you will see that different people enact distinct laws that best suit their
needs. This book is intended for use in all states. However, the bulk of any criminal law overview is an
examination of different crimes and their elements. To be accurate and representative, this book
focuses on general principles that many states follow and provides frequent references to specific
state laws for illustrative purposes. Always check the most current version of your state’s law because
it may vary from the law presented in this book.
Laws are not static. As society changes, so do the laws that govern behavior. Evolving value systems
naturally lead to new laws and regulations supporting modern beliefs. Although a certain stability is
essential to the enforcement of rules, occasionally the rules must change.
Try to maintain an open mind when reviewing the different and often contradictory laws set forth in
this book. Law is not exact, like science or math. Also try to become comfortable with the gray area,
rather than viewing situations as black or white.
K E Y TA K E A W AY
A crime is an act commi�ed in viola�on of a law prohibi�ng it or omi�ed in viola�on of a law
ordering it. In general, the criminal law must be enacted before the crime is commi�ed.
E X E R C I S E
Answer the following ques�on. Check your answer using the answer key at the end of the chapter.
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1. Read Gonzales v. Oregon, 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon’s right
to legalize physician-assisted suicide? The case is available at this link:
h�p://www.law.cornell.edu/supct/html/04-623.ZS.html.
1.2 Criminal Law and Criminal Procedure
L E A R N I N G O B J E C T I V E
1. Compare criminal law and criminal procedure.
This book focuses on criminal law, but it occasionally touches on issues of criminal procedure,
so it is important to differentiate between the two.
Criminal law generally defines the rights and obligations of individuals in society. Some common
issues in criminal law are the elements of specific crimes and the elements of various criminal
defenses. Criminal procedure generally concerns the enforcement of individuals’ rights during the
criminal process. Examples of procedural issues are individuals’ rights during law enforcement
investigation, arrest, filing of charges, trial, and appeal.
Example of Criminal Law Issues
Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department
store. Moments after they enter the lingerie department, Linda surreptitiously places a bra in her
purse. Clara watches, horrified, but does not say anything, even though a security guard is standing
nearby. This example illustrates two issues of criminal law: (1) Which crime did Linda commit when
she shoplifted the bra? (2) Did Clara commit a crime when she failed to alert the security guard to
Linda’s shoplifting? You learn the answer to issue (1) in Chapter 11 "Crimes against Property" and
issue (2) in Chapter 4 "The Elements of a Crime" and Chapter 7 "Parties to Crime".
Example of Criminal Procedure Issues
Review the example in Section 1.2.1 "Example of Criminal Law Issues". Assume that Linda and Clara
attempt to leave the store and an alarm is activated. Linda begins sprinting down the street. Colin, a
police officer, just happens to be driving by with the window of his patrol car open. He hears the store
alarm, sees Linda running, and begins shooting at Linda from the car. Linda is shot in the leg and
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collapses. Linda is treated at the hospital for her injury, and when she is released, Colin arrests her
and transports her to the police station. He brings her to an isolated room and leaves her there alone.
Twelve hours later, he reenters the room and begins questioning Linda. Linda immediately requests
an attorney. Colin ignores this request and continues to question Linda about the reason the
department store alarm went off. Whether Colin properly arrested and interrogated Linda are
criminal procedure issues beyond the scope of this book. However, this example does illustrate
one criminal law issue: did Colin commit a crime when he shot Linda in the leg? You learn the answer
to this question in Chapter 5 "Criminal Defenses, Part 1".
Figure 1.1 Criminal Law and Criminal Procedure
K E Y TA K E A W AY
Criminal law generally defines the rights and obliga�ons of individuals in society. Criminal
procedure generally concerns the enforcement of individuals’ rights during the criminal process.
E X E R C I S E S
Answer the following ques�ons. Check your answers using the answer key at the end of the chapter.
1. Paul, a law enforcement officer, arrests Barney for crea�ng a disturbance at a subway sta�on.
While Barney is handcuffed facedown on the ground, Paul shoots and kills him. Paul claims that he
accidentally grabbed his gun instead of his Taser. Is this an issue of criminal law or criminal
procedure?
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2. Read Payton v. New York, 445 U.S. 573 (1980). In Payton, the US Supreme Court held a New York
statute uncons�tu�onal under the Fourth Amendment. Did the Payton ruling focus on criminal law
or criminal procedure? The case is available at this link: h�p://supreme.jus�a.com/us/445/573.
1.3 The Difference between Civil and Criminal Law
L E A R N I N G O B J E C T I V E S
1. Compare civil and criminal law.
2. Ascertain the primary differences between civil li�ga�on and a criminal prosecu�on.
Law can be classified in a variety of ways. One of the most general classifications divides law into civil
and criminal. A basic definition of civil law is “the body of law having to do with the private rights of
individuals.”Yourdictionary.com, “Definition of Civil Law,” accessed August 16, 2010,
http://www.yourdictionary.com/civil-law. As this definition indicates, civil law is between
individuals, not the government. Criminal law involves regulations enacted and enforced by
government action, while civil law provides a remedy for individuals who need to enforce private
rights against other individuals. Some examples of civil law are family law, wills and trusts, and
contract law. If individuals need to resolve a civil dispute, this is called civil litigation, or a civil
lawsuit. When the type of civil litigation involves an injury, the injury action is called a tort.
Characteris�cs of Civil Li�ga�on
It is important to distinguish between civil litigation and criminal prosecution. Civil and criminal
cases share the same courts, but they have very different goals, purposes, and results. Sometimes, one
set of facts gives way to a civil lawsuit and a criminal prosecution. This does not violate double
jeopardy and is actually quite common.
Par�es in Civil Li�ga�on
In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property,
or some sort of performance. Anyone who is injured—an individual, corporation, or other business
entity—can sue civilly. In a civil litigation matter, the injured party that is suing is called the
plaintiff. A plaintiff must hire and pay for an attorney or represent himself or herself. Hiring an
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attorney is one of the many costs of litigation and should be carefully contemplated before jumping
into a lawsuit.
The alleged wrongdoer and the person or entity being sued are called the defendant. While the term
plaintiff is always associated with civil litigation, the wrongdoer is called a defendant in both civil
litigation and a criminal prosecution, so this can be confusing. The defendant can be any person or
thing that has caused harm, including an individual, corporation, or other business entity. A
defendant in a civil litigation matter must hire and pay for an attorney even if that defendant did
nothing wrong. The right to a free attorney does not apply in civil litigation, so a defendant who
cannot afford an attorney must represent himself or herself.
Goal of Civil Li�ga�on
The goal of civil litigation is to compensate the plaintiff for any injuries and to put the plaintiff back
in the position that person held before the injury occurred. This goal produces interesting results. It
occasionally creates liability or an obligation to pay when there is no fault on behalf of the defendant.
The goal is to make the plaintiff whole, not to punish, so fault is not really an issue. If the defendant
has the resources to pay, sometimes the law requires the defendant to pay so that society does not
bear the cost of the plaintiff’s injury.
A defendant may be liable without fault in two situations. First, the law that the defendant violated
may not require fault. Usually, this is referred to as strict liability. Strict liability torts do not require
fault because they do not include an intent component. Strict liability and other intent issues are
discussed in detail in Chapter 4 "The Elements of a Crime". Another situation where the defendant
may be liable without fault is if the defendant did not actually commit any act but is associated with
the acting defendant through a special relationship. The policy of holding a separate entity or
individual liable for the defendant’s action is called vicarious liability. An example of vicarious
liability is employer-employee liability, also referred to as respondeat superior. If an employee
injures a plaintiff while on the job, the employer may be liable for the plaintiff’s injuries, whether or
not the employer is at fault. Clearly, between the employer and the employee, the employer generally
has the better ability to pay.
Example of Respondeat Superior
Chris begins the first day at his new job as a cashier at a local McDonald’s restaurant. Chris attempts
to multitask and pour hot coffee while simultaneously handing out change. He loses his grip on the
coffee pot and spills steaming-hot coffee on his customer Geoff’s hand. In this case, Geoff can sue
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McDonald’s and Chris if he sustains injuries. McDonald’s is not technically at fault, but it may be
liable for Geoff’s injuries under a theory of respondeat superior.
Harm Requirement
The goal of civil litigation is to compensate the plaintiff for injuries, so the plaintiff must be a bona
fide victim that can prove harm. If there is no evidence of harm, the plaintiff has no basis for the
civil litigation matter. An example would be when a defendant rear-ends a plaintiff in an automobile
accident without causing damage to the vehicle (property damage) or physical injury. Even if the
defendant is at fault for the automobile accident, the plaintiff cannot sue because the plaintiff does
not need compensation for any injuries or losses.
Damages
Often the plaintiff sues the defendant for money rather than a different, performance-oriented
remedy. In a civil litigation matter, any money the court awards to the plaintiff is called damages.
Several kinds of damages may be appropriate. The plaintiff can sue for compensatory damages,
which compensate for injuries, costs, which repay the lawsuit expenses, and in some cases, punitive
damages. Punitive damages, also referred to as exemplary damages, are not designed to
compensate the plaintiff but instead focus on punishing the defendant for causing the injury.BMW of
North America, Inc. v. Gore, 517 U.S. 559 (1996), accessed February 13, 2010,
http://www.law.cornell.edu/supct/html/94-896.ZO.html.
Characteris�cs of a Criminal Prosecu�on
A criminal prosecution takes place after a defendant violates a federal or state criminal statute, or in
some jurisdictions, after a defendant commits a common-law crime. Statutes and common-law
crimes are discussed in Section 1.6 "Sources of Law".
Par�es in a Criminal Prosecu�on
The government institutes the criminal prosecution, rather than an individual plaintiff. If the
defendant commits a federal crime, the United States of America pursues the criminal
prosecution. If the defendant commits a state crime, the state government, often called the People of
the State pursues the criminal prosecution. As in a civil lawsuit, the alleged wrongdoer is called the
defendant and can be an individual, corporation, or other business entity.
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The attorney who represents the government controls the criminal prosecution. In a federal criminal
prosecution, this is the United States Attorney.United States Department of Justice, “United
States Attorneys,” accessed February 15, 2010, http://www.justice.gov/usao. In a state criminal
prosecution, this is generally a state prosecutor or a district attorney.“United States’ Prosecuting
Attorneys,” Galaxy.com website, accessed February 15, 2010,
http://www.galaxy.com/dir968533/United_States.htm. A state prosecutor works for the state but is
typically an elected official who represents the county where the defendant allegedly committed the
crime.
Applicability of the Cons�tu�on in a Criminal Prosecu�on
The defendant in a criminal prosecution can be represented by a private attorney or a free attorney
paid for by the state or federal government if he or she is unable to afford attorney’s fees and facing
incarceration.Alabama v. Shelton, 535 U.S. 654 (2002), accessed August 16, 2010,
http://www.law.cornell.edu/supct/html/00-1214.ZO.html. Attorneys provided by the government are
called public defenders.18 U.S.C. § 3006A, accessed February 15, 2010,
http://www.law.cornell.edu/uscode/18/3006A.html. This is a significant difference from a civil
litigation matter, where both the plaintiff and the defendant must hire and pay for their own private
attorneys. The court appoints a free attorney to represent the defendant in a criminal prosecution
because the Constitution is in effect in any criminal proceeding. The Constitution provides for the
assistance of counsel in the Sixth Amendment, so every criminal defendant facing incarceration has
the right to legal representation, regardless of wealth.
The presence of the Constitution at every phase of a criminal prosecution changes the proceedings
significantly from the civil lawsuit. The criminal defendant receives many constitutional protections,
including the right to remain silent, the right to due process of law, the freedom from double
jeopardy, and the right to a jury trial, among others.
Goal of a Criminal Prosecu�on
Another substantial difference between civil litigation and criminal prosecution is the goal. Recall
that the goal of civil litigation is to compensate the plaintiff for injuries. In contrast, the goal of a
criminal prosecution is to punish the defendant.
One consequence of the goal of punishment in a criminal prosecution is that fault is almost always an
element in any criminal proceeding. This is unlike civil litigation, where the ability to pay is a priority
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consideration. Clearly, it is unfair to punish a defendant who did nothing wrong. This makes criminal
law justice oriented and very satisfying for most students.
Injury and a victim are not necessary components of a criminal prosecution because punishment is
the objective, and there is no plaintiff. Thus behavior can be criminal even if it is essentially harmless.
Society does not condone or pardon conduct simply because it fails to produce a tangible loss.
Examples of Vic�mless and Harmless Crimes
Steven is angry because his friend Bob broke his skateboard. Steven gets his gun, which has a silencer
on it, and puts it in the glove compartment of his car. He then begins driving to Bob’s house. While
Steven is driving, he exceeds the speed limit on three different occasions. Steven arrives at Bob’s
house and then he hides in the bushes by the mailbox and waits. After an hour, Bob opens the front
door and walks to the mailbox. Bob gets his mail, turns around, and begins walking back to the house.
Steven shoots at Bob three different times but misses, and the bullets end up landing in the dirt. Bob
does not notice the shots because of the silencer.
In this example, Steven has committed several crimes: (1) If Steven does not have a special permit to
carry a concealed weapon, putting the gun in his glove compartment is probably a crime in most
states. (2) If Steven does not have a special permit to own a silencer for his gun, this is probably a
crime in most states. (3) If Steven does not put the gun in a locked container when he transports it,
this is probably a crime in most states. (4) Steven committed a crime each time he exceeded the speed
limit. (5) Each time Steven shot at Bob and missed, he probably committed the crime of attempted
murder or assault with a deadly weapon in most states. Notice that none of the crimes Steven
committed caused any discernible harm. However, common sense dictates that Steven should be
punished so he does not commit a criminal act in the future that may result in harm.
Table 1.1 Comparison of Criminal Prosecution and Civil Litigation
Feature Criminal Prosecu�on Civil Li�ga�on
Vic�m No Yes. This is the plain�ff.
Harm No Yes. This is the basis for damages.
Ini�ator of lawsuit Federal or state government Plain�ff
A�orney for the ini�ator US A�orney or state prosecutor Private a�orney
A�orney for the defendant Private a�orney or public defender Private a�orney
Cons�tu�onal protec�ons Yes No
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Figure 1.2 Crack the Code
L A W A N D E T H I C S : T H E O . J . S I M P S O N C A S E
Two Different Trials—Two Different Results
O. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of vic�ms
Ron Goldman and his ex-wife, Nicole Brown Simpson. In the criminal prosecu�on, which came first, the
US Cons�tu�on provided O. J. Simpson with the right to a fair trial (due process) and the right to
remain silent (privilege against self-incrimina�on). Thus the burden of proof was beyond a reasonable
doubt, and O. J. Simpson did not have to tes�fy. O. J. Simpson was acqui�ed, or found not guilty, in the
criminal trial.Doug Linder, “The Trial of Orenthal James Simpson,” UMKC website, accessed August 18,
2010, h�p://www.law.umkc.edu/faculty/projects/�rials/Simpson/Simpsonaccount.htm.
In the subsequent civil lawsuit, the burden of proof was preponderance of evidence, which is 51–49
percent, and O. J. Simpson was forced to tes�fy. O. J. Simpson was found liable in the civil lawsuit. The
jury awarded $8.5 million in compensatory damages to Fred Goldman (Ron Goldman’s father) and his
ex-wife Sharon Rufo. A few days later, the jury awarded puni�ve damages of $25 million to be shared
between Nicole Brown Simpson’s children and Fred Goldman.Thomas L. Jones, “Jus�ce for the Dead,”
TruTV website, accessed August 18, 2010,
h�p://www.trutv.com/library/crime/notorious_murders/famous/simpson/dead_16.html.
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1. Do you think it is ethical to give criminal defendants more legal protec�on than civil defendants?
Why or why not?
2. Why do you think the criminal trial of O. J. Simpson took place before the civil trial? Check your
answers to both ques�ons using the answer key at the end of the chapter.
Johnny Cochran Video
Johnny Cochran: If the Gloves Don’t Fit…
This video presents defense attorney Johnny Cochran’s closing argument in the O. J. Simpson
criminal prosecution:
(click to see video)
K E Y TA K E A W AY S
Civil law regulates the private rights of individuals. Criminal law regulates individuals’ conduct to
protect the public.
Civil li�ga�on is a legal ac�on between individuals to resolve a civil dispute. Criminal prosecu�on is
when the government prosecutes a defendant to punish illegal conduct.
E X E R C I S E S
Answer the following ques�ons. Check your answers using the answer key at the end of the chapter.
1. Jerry, a law enforcement officer, pulls Juanita over for speeding. When Jerry begins wri�ng
Juanita’s traffic �cket, she starts to berate him and accuse him of racial profiling. Jerry
surrep��ously reaches into his pocket and ac�vates a tape recorder. Juanita later calls the highway
patrol where Jerry works and files a false complaint against Jerry. Jerry sues Juanita for $500 in
small claims court for filing the false report. He uses the tape recording as evidence. Is this a civil
li�ga�on ma�er or a criminal prosecu�on?
2. Read Johnson v. Pearce, 148 N.C.App. 199 (2001). In this case, the plain�ff sued the defendant for
criminal conversa�on. Is this a civil li�ga�on ma�er or a criminal prosecu�on? The case is
available at this link: h�p://scholar.google.com/scholar_case?case=10159013992593966605&q=
Johnson+v.+Pearce&hl=en&as_sdt=2,5.
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1.4 Classifica�on of Crimes
L E A R N I N G O B J E C T I V E S
1. Ascertain the basis for grading.
2. Compare malum in se and malum prohibitum crimes.
3. Compare the punishment op�ons for felonies, misdemeanors, felony-misdemeanors, and
infrac�ons.
4. Compare jail and prison.
Crimes can be classified in many ways. Crimes also can be grouped by subject matter. For example, a
crime like assault, battery, or rape tends to injure another person’s body, so it can be classified as a
“crime against the person.” If a crime tends to injure a person by depriving him or her of property or
by damaging property, it can be classified as a “crime against property.” These classifications are
basically for convenience and are not imperative to the study of criminal law.
More important and substantive is the classification of crimes according to the severity of
punishment. This is called grading. Crimes are generally graded into four categories: felonies,
misdemeanors, felony-misdemeanors, and infractions. Often the criminal intent element
affects a crime’s grading. Malum in se crimes, murder, for example, are evil in their nature and are
generally graded higher than malum prohibitum crimes, which are regulatory, like a failure to pay
income taxes.
Felonies
Felonies are the most serious crimes. They are either supported by a heinous intent, like the intent
to kill, or accompanied by an extremely serious result, such as loss of life, grievous injury, or
destruction of property. Felonies are serious, so they are graded the highest, and all sentencing
options are available. Depending on the jurisdiction and the crime, the sentence could be execution,
prison time, a fine, or alternative sentencing such as probation, rehabilitation, and home
confinement. Potential consequences of a felony conviction also include the inability to vote, own a
weapon, or even participate in certain careers.
Misdemeanors
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Misdemeanors are less serious than felonies, either because the intent requirement is of a lower
level or because the result is less extreme. Misdemeanors are usually punishable by jail time of one
year or less per misdemeanor, a fine, or alternative sentencing like probation, rehabilitation, or
community service. Note that incarceration for a misdemeanor is in jail rather than prison. The
difference between jail and prison is that cities and counties operate jails, and the state or federal
government operates prisons, depending on the crime. The restrictive nature of the confinement also
differs between jail and prison. Jails are for defendants who have committed less serious offenses, so
they are generally less restrictive than prisons.
Felony-Misdemeanors
Felony-misdemeanors are crimes that the government can prosecute and punish as either a felony
or a misdemeanor, depending on the particular circumstances accompanying the offense. The
discretion whether to prosecute the crime as a felony or misdemeanor usually belongs to the judge,
but in some instances the prosecutor can make the decision.
Infrac�ons
Infractions, which can also be called violations, are the least serious crimes and include minor
offenses such as jaywalking and motor vehicle offenses that result in a simple traffic ticket. Infractions
are generally punishable by a fine or alternative sentencing such as traffic school.
Figure 1.3 Diagram of Grading
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K E Y TA K E A W AY S
Grading is based on the severity of punishment.
Malum in se crimes are evil in their nature, like murder. Malum prohibitum crimes are regulatory,
like a failure to pay income taxes.
Felonies are graded the highest. Punishment op�ons for felonies include the following:
Execu�on
Prison �me
Fines
Alterna�ve sentencing such as proba�on, rehabilita�on, and home confinement
Misdemeanors are graded lower than felonies. Punishment op�ons for misdemeanors
include the following:
Jail �me of one year or less per misdemeanor
Fines
Alterna�ve sentencing such as proba�on, rehabilita�on, and community service
Felony-misdemeanors are punished as either a felony or a misdemeanor.
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Infrac�ons, also called viola�ons, are graded lower than misdemeanors and have less
severe punishment op�ons:
Fines
Alterna�ve sentencing, such as traffic school
One difference between jail and prison is that ci�es and coun�es operate jails, and the state or
federal government operates prisons, depending on the crime. The restric�ve nature of the
confinement is another difference. Jails are for defendants who have commi�ed less serious
offenses, so they are generally less restric�ve than prisons.
E X E R C I S E S
Answer the following ques�ons. Check your answers using the answer key at the end of the chapter.
1. Harrison kills Calista and is prosecuted and sentenced to one year in jail. Did Harrison commit a
felony or a misdemeanor?
2. Read State v. Gillison, 766 N.W. 2d 649 (2009). In Gillison, why did the Iowa Court of Appeals rule
that the defendant’s prior convic�ons were felony convic�ons? What impact did this ruling have
on the defendant’s sentence? The case is available at this link:
h�p://scholar.google.com/scholar_case?case=8913791129507413362&q=
State+v.+Gillison&hl=en&as_sdt=2,5&as_vis=1.
1.5 The Purposes of Punishment
L E A R N I N G O B J E C T I V E
1. Ascertain the effects of specific and general deterrence, incapacita�on, rehabilita�on, retribu�on,
and res�tu�on.
Punishment has five recognized purposes: deterrence, incapacitation, rehabilitation, retribution, and
restitution.
Specific and General Deterrence
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Deterrence prevents future crime by frightening the defendant or the public. The two types of
deterrence are specific and general deterrence. Specific deterrence applies to an individual
defendant. When the government punishes an individual defendant, he or she is theoretically less
likely to commit another crime because of fear of another similar or worse punishment. General
deterrence applies to the public at large. When the public learns of an individual defendant’s
punishment, the public is theoretically less likely to commit a crime because of fear of the punishment
the defendant experienced. When the public learns, for example, that an individual defendant was
severely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a
deep fear of criminal prosecution.
Incapacita�on
Incapacitation prevents future crime by removing the defendant from society. Examples of
incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.
Rehabilita�on
Rehabilitation prevents future crime by altering a defendant’s behavior. Examples of rehabilitation
include educational and vocational programs, treatment center placement, and counseling. The court
can combine rehabilitation with incarceration or with probation or parole. In some states, for
example, nonviolent drug offenders must participate in rehabilitation in combination with probation,
rather than submitting to incarceration.Ariz. Rev. Stat. §13-901.01, accessed February 15, 2010,
http://law.justia.com/arizona/codes/title13/00901-01.html. This lightens the load of jails and
prisons while lowering recidivism, which means reoffending.
Retribu�on
Retribution prevents future crime by removing the desire for personal avengement (in the form of
assault, battery, and criminal homicide, for example) against the defendant. When victims or society
discover that the defendant has been adequately punished for a crime, they achieve a certain
satisfaction that our criminal procedure is working effectively, which enhances faith in law
enforcement and our government.
Res�tu�on
Restitution prevents future crime by punishing the defendant financially. Restitution is when the
court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation
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damages award. Restitution can be for physical injuries, loss of property or money, and rarely,
emotional distress. It can also be a fine that covers some of the costs of the criminal prosecution and
punishment.
Figure 1.4 Different Punishments and Their Purpose
K E Y TA K E A W AY S
Specific deterrence prevents crime by frightening an individual defendant with punishment.
General deterrence prevents crime by frightening the public with the punishment of an individual
defendant.
Incapacita�on prevents crime by removing a defendant from society.
Rehabilita�on prevents crime by altering a defendant’s behavior.
Retribu�on prevents crime by giving vic�ms or society a feeling of avengement.
Res�tu�on prevents crime by punishing the defendant financially.
E X E R C I S E S
Answer the following ques�ons. Check your answers using the answer key at the end of the chapter.
1. What is one difference between criminal vic�ms’ res�tu�on and civil damages?
2. Read Campbell v. State, 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the
res�tu�on award was too high? Did the Texas Court of Criminal Appeals agree with the
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defendant’s claim? The case is available at this link: h�p://scholar.google.com/scholar_case?
case=11316909200521760089&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
1.6 Sources of Law
L E A R N I N G O B J E C T I V E S
1. Iden�fy the three sources of law.
2. Rank the three sources of law, from highest to lowest.
3. Ascertain the purpose of the US and state cons�tu�ons.
4. Ascertain one purpose of statutory law.
5. Ascertain the purpose of case law.
6. Define judicial review.
7. Diagram and explain the components of a case brief.
Law comes from three places, which are referred to as the sources of law.
Cons�tu�onal Law
The first source of law is constitutional law. Two constitutions are applicable in every state: the
federal or US Constitution, which is in force throughout the United States of America, and the state’s
constitution. The US Constitution created our legal system, as is discussed in Chapter 2 "The Legal
System in the United States". States’ constitutions typically focus on issues of local concern.
The purpose of federal and state constitutions is to regulate government action. Private individuals
are protected by the Constitution, but they do not have to follow it themselves.
Example of Government and Private Ac�on
Cora stands on a public sidewalk and criticizes President Obama’s health-care plan. Although other
individuals may be annoyed by Cora’s words, the government cannot arrest or criminally prosecute
Cora for her speech because the First Amendment of the US Constitution guarantees each individual
the right to speak freely. On the other hand, if Cora walks into a Macy’s department store and
criticizes the owner of Macy’s, Macy’s could eject Cora immediately. Macy’s and its personnel are
private, not government, and they do not have to abide by the Constitution.
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Excep�ons to the Cons�tu�on
The federal and state constitutions are both written with words that can be subject to more than one
interpretation. Thus there are many exceptions to any constitution’s protections. Constitutional
protections and exceptions are discussed in detail in Chapter 3 "Constitutional Protections".
For safety and security reasons, we see more exceptions to constitutional protections in public schools
and prisons. For example, public schools and prisons can mandate a certain style of dress for the
purpose of ensuring safety. Technically, forcing an individual to dress a specific way could violate the
right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can
lower gang-related conflicts in school and prevent prisoners from successfully escaping, the
government can constitutionally suppress free speech in these locations.
Superiority of the Cons�tu�on
Of the three sources of law, constitutional law is considered the highest and should not be supplanted
by either of the other two sources of law. Pursuant to principles of federal supremacy, the federal or
US Constitution is the most preeminent source of law, and state constitutions cannot supersede it.
Federal constitutional protections and federal supremacy are discussed in Chapter 2 "The Legal
System in the United States" and Chapter 3 "Constitutional Protections".
Statutory Law
The second source of law is statutory law. While the Constitution applies to government action,
statutes apply to and regulate individual or private action. A statute is a written (and published) law
that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative
branch of government. This is simply a group of individuals elected for this purpose. The US
legislative branch is called Congress, and Congress votes federal statutes into law. Every state has a
legislative branch as well, called a state legislature, and a state legislature votes state statutes into
law. Often, states codify their criminal statutes into a penal code.
State citizens can also vote state statutes into law. Although a state legislature adopts most state
statutes, citizens voting on a ballot can enact some very important statutes. For example, a majority of
California’s citizens voted to enact California’s medicinal marijuana law.California Compassionate
Use Act of 1996, Cal. Health and Safety Code § 11362.5, accessed February 15, 2010,
http://www.cdph.ca.gov/programs/mmp/Pages/Medical%20Marijuana%20Program.aspx.
California’s three-strikes law was voted into law by both the state legislature and California’s citizens
and actually appears in the California Penal Code in two separate places.Brian Brown and Greg
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Jolivette, “A Primer: Three Strikes—The Impact after More Than a Decade,” Legislative Analyst’s
Office website, accessed February 15, 2010,
http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm.
Statutory Law’s Inferiority
Statutory law is inferior to constitutional law, which means that a statute cannot conflict with or
attempt to supersede constitutional rights. If a conflict exists between constitutional and statutory
law, the courts must resolve the conflict. Courts can invalidate unconstitutional statutes pursuant to
their power of judicial review, which is discussed in an upcoming section.
Administra�ve Laws and Ordinances
Other written and published laws that apply to individuals are administrative laws and
ordinances. Administrative laws and ordinances should not supersede or conflict with statutory law.
Administrative laws are enacted by administrative agencies, which are governmental agencies
designed to regulate in specific areas. Administrative agencies can be federal or state and contain not
only a legislative branch but also an executive (enforcement) branch and judicial (court) branch. The
Food and Drug Administration (FDA) is an example of a federal administrative agency. The FDA
regulates any food products or drugs produced and marketed in the United States.
Ordinances are similar to statutes, except that cities and counties vote them into law, rather than a
state’s legislature or a state’s citizens. Ordinances usually relate to health, safety, or welfare, and
violations of them are typically classified as infractions or misdemeanors, rather than felonies.
A written law prohibiting jaywalking within a city’s or county’s limits is an example of an ordinance.
Model Penal Code
State criminal laws differ significantly, so in the early 1960s a group of legal scholars, lawyers, and
judges who were members of the American Law Institute drafted a set of suggested criminal statutes
called the Model Penal Code. The intent of the Model Penal Code was to provide a standardized set
of criminal statutes that all states could adopt, thus simplifying the diversity effect of the United
States’ legal system. While the Model Penal Code has not been universally adopted, a majority of the
states have incorporated portions of it into their penal codes, and the Model Penal Code survives as a
guideline and focal point for discussion when state legislatures modify their criminal statutes.
Case Law
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The third source of law is case law. When judges rule on the facts of a particular case, they create
case law. Federal case law comes from federal courts, and state case law comes from state courts.
Case law has its origins in English common law.
English Common Law
In Old England, before the settlement of the United States, case law was the most prevalent source of
law. This was in contrast to countries that followed the Roman Law system, which primarily relied on
written codes of conduct enacted by legislature. Case law in England was mired in tradition and local
customs. Societal principles of law and equity were the guidelines when courts issued their rulings. In
an effort to be consistent, English judges made it a policy to follow previous judicial decisions, thereby
creating a uniform system of laws throughout the country for the first time. Case law was named
common law because it was common to the entire nation.Lloyd Duhaime, “Common Law
Definition,” Duhaime.org website, accessed September 26, 2010,
http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx.
The English system of jurisprudence made its way to the United States with the original colonists.
Initially, the thirteen colonies unanimously adopted common law as the law of the land. All crimes
were common-law crimes, and cases determined criminal elements, defenses, and punishment
schemes. Gradually, after the Revolutionary War, hostility toward England and modern reform led to
the erosion of common-law crimes and a movement toward codification. States began replacing
common-law crimes with statutes enacted by state legislatures. Oxford professor Sir William
Blackstone’s Commentaries on the Law of England, which interpreted and summarized English
common law, became an essential reference as the nation began the process of converting common-
law principles into written statutes, ordinances, and penal codes.Lloyd Duhaime, “Common Law
Definition,” Duhaime.org website, accessed September 26, 2010,
http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx.
Limita�ons on Common-Law Crimes
In modern society, in many states and the federal government,United States v. Hudson & Goodwin,
11 U.S. 32 (1812), accessed September 24, 2010, http://openjurist.org/11/us/32/the-united-states-v-
hudson-and-goodwin. judges cannot create crimes. This violates notions of fairness. Making up a new
crime and punishing the defendant for it does not provide consistency or predictability to our legal
system. It also violates the principle of legality, a core concept of American criminal justice embodied
in this phrase: “Nullum crimen sine lege, nulla poena sine crimen” (No crime without law, no
punishment without crime).
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In states that do not allow common-law crimes, statutes must define criminal conduct. If no statute
exists to criminalize the defendant’s behavior, the defendant cannot be criminally prosecuted, even if
the behavior is abhorrent. As the Model Penal Code states, “[n]o conduct constitutes an offense unless
it is a crime or violation under this Code or another statute of this State” (Model Penal Code
§ 1.05(1)).
The common law still plays an important role in criminal lawmaking, even though most crimes are
now embodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of
English common law. Legislatures often create statutes out of former common-law crimes. Judges
look to the common law when defining statutory terms, establishing criminal procedure, and creating
defenses to crimes. The United States is considered a common-law country. Every state except
Louisiana, which is based on the French Civil Code, adopts the common law as the law of the state
except where a statute provides otherwise.Legal Definition, “Common Law,” Lectlaw.com website,
accessed September 26, 2010, http://www.lectlaw.com/def/c070.htm.
Example of a Court’s Refusal to Create a Common-Law Crime
Read Keeler v. Superior Court, 470 P.2d 617 (1970). In Keeler, the defendant attacked his pregnant
ex-wife, and her baby was thereafter stillborn. The California Supreme Court disallowed a murder
charge against Keeler under California Penal Code § 187 because the statute criminalized only the
malicious killing of a “human being.” The court reached its decision after examining the common-law
definition of human being and determining that the definition did not include a fetus. The court
reasoned that it could not create a new crime without violating the due process clause, separation of
powers, and California Penal Code § 6, which prohibits the creation of common-law crimes. After the
Keeler decision, the California Legislature changed Penal Code § 187 to include a fetus, excepting
abortion.Cal. Penal Code § 187, accessed August 23, 2010,
http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s187.
Powerful Nature of Case Law
Generally, if there is a statute on an issue, the statute is superior to case law, just as the Constitution
is superior to statutory law. However, judges interpret constitutional and statutory law, making case
law a powerful source of law. A judge can interpret a constitution in a way that adds or creates
exceptions to its protections. A judge can also interpret a statute in a way that makes it
unconstitutional and unenforceable. This is called the power of judicial review.Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803), accessed February 15, 2010,
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html.
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Example of Judicial Review
An example of judicial review is set forth in Texas v. Johnson, 491 U.S. 397 (1989). In Johnson, the
US Supreme Court ruled that burning a flag is protected self-expression under the First Amendment
to the US Constitution. Thus the Court reversed the defendant’s conviction under a Texas statute that
criminalized the desecration of a venerated object. Note how Johnson not only invalidates a state
statute as being inferior to the US Constitution but also changes the US Constitution by adding flag
burning to the First Amendment’s protection of speech.
Figure 1.5 Diagram and Hierarchy of the Sources of Law
Stare Decisis and Precedent
Cases are diverse, and case law is not really law until the judge rules on the case, so there must be a
way to ensure case law’s predictability. It would not be fair to punish someone for conduct that is not
yet illegal. Thus judges adhere to a policy called stare decisis. Stare decisis is derived from English
common law and compels judges to follow rulings in previous cases. A previous case is called
precedent. Once judges have issued a ruling on a particular case, the public can be assured that the
resulting precedent will continue to be followed by other judges. Stare decisis is not absolute; judges
can deviate from it to update the law to conform to society’s modern expectations.
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Rules of Stare Decisis and Use of Precedent
Case precedent is generally an appeal rather than a trial. There is often more than one level of appeal,
so some appeals come from higher courts than others. This book discusses the court system, including
the appellate courts, in Chapter 2 "The Legal System in the United States".
Many complex rules govern the use of precedent. Lawyers primarily use precedent in their
arguments, rather than statutes or the Constitution, because it is so specific. With proper research,
lawyers can usually find precedent that matches or comes very close to matching the facts of any
particular case. In the most general sense, judges tend to follow precedent that is newer, from a high
court, and from the same court system, either federal or state.
Example of Stare Decisis and Use of Precedent
Geoffrey is a defense attorney for Conrad, who is on trial for first-degree murder. The murder
prosecution is taking place in New Mexico. Geoffrey finds case precedent from a New York Court of
Appeals, dated 1999, indicating that Conrad should have been prosecuted for voluntary
manslaughter, not first-degree murder. Brandon, the prosecuting attorney, finds case precedent from
the New Mexico Supreme Court, dated 2008, indicating that a first-degree murder prosecution is
appropriate. The trial court will probably follow the precedent submitted by Brandon because it is
newer, from a higher court, and from the same court system as the trial.
Case Cita�on
Cases must be published to become case law. A published case is also called a judicial opinion. This
book exposes you to many judicial opinions that you have the option of reading on the Internet. It is
essential to understand the meaning of the case citation. The case citation is the series of numbers
and letters after the title of the case and it denotes the case’s published location. For example, let’s
analyze the case citation for Keeler v. Superior Court, 470 P.2d 617 (1970).
Figure 1.6 Keeler Case Citation
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As you can see from the diagram, the number 470 is the volume number of the book that published
the Keeler case. The name of that book is “P.2d” (this is an abbreviation for Pacific Reports, 2d
Series). The number 617 is the page number of the Keeler case. The date (1970) is the date the
California Supreme Court ruled on the case.
Case Briefing
It is useful to condense judicial opinions into case brief format. The Keeler case brief is shown in
Figure 1.7 "Keeler Case Brief".
Figure 1.7 Keeler Case Brief
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Read this case at the following link: http://scholar.google.com/scholar_case?
case=2140632244672927312&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
Published judicial opinions are written by judges and can be lengthy. They can also contain more than
one case law, depending on the number of issues addressed. Case briefs reduce a judicial opinion to
its essentials and can be instrumental in understanding the most important aspects of the case.
Standard case brief formats can differ, but one format that attorneys and paralegals commonly use is
explained in the following paragraph.
Review the Keeler case brief. The case brief should begin with the title of the case, including the
citation. The next component of the case brief should be the procedural facts. The procedural
facts should include two pieces of information: who is appealing and which court the case is in. As
you can see from the Keeler case brief, Keeler brought an application for a writ of prohibition, and the
court is the California Supreme Court. Following the procedural facts are the substantive facts,
which should be a short description of the facts that instigated the court trial and appeal. The
procedural and substantive facts are followed by the issue. The issue is the question the court is
examining, which is usually the grounds for appeal. The case brief should phrase the issue as a
question. Cases usually have more than one issue. The case brief can state all the issues or only the
issue that is most important. The substantive holding comes after the issue, is actually the case
law, and answers the issue question. If more than one issue is presented in the case brief, a
substantive holding should address each issue.
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Figure 1.8 Example of a Substantive Holding
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html.
A procedural holding should follow the substantive holding. The procedural holding discusses
what the court did procedurally with the case. This could include reversing the lower court’s ruling,
affirming the lower court’s ruling, or adjusting a sentence issued by the lower court. This book
discusses court procedure in detail in Chapter 2 "The Legal System in the United States". Last, but
still vital to the case brief, is the rationale. The rationale discusses the reasoning of the judges when
ruling on the case. Rationales can set policy, which is not technically case law but can still be used as
precedent in certain instances.
One judge writes the judicial opinion. Judges vote how to rule, and not all cases are supported by a
unanimous ruling. Occasionally, other judges will want to add to the judicial opinion. If a judge agrees
with the judicial opinion, the judge could write a concurring opinion, which explains why the
judge agrees. If a judge disagrees with the judicial opinion, the judge could write a dissenting
opinion explaining why the judge disagrees. The dissenting opinion will not change the judicial
opinion, but it may also be used as precedent in a future case if there are grounds for changing the
law.
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K E Y TA K E A W AY S
The three sources of law are cons�tu�onal, statutory, and case law.
The sources of law are ranked as follows: first, cons�tu�onal; second, statutory; and third, case
law. Although it is technically ranked the lowest, judicial review makes case law an extremely
powerful source of law.
The purpose of the US and state cons�tu�ons is to regulate government ac�on.
One purpose of statutory law is to regulate individual or private ac�on.
The purpose of case law is to supplement the law when there is no statute on point and also to
interpret statutes and the cons�tu�on(s).
The court’s power to invalidate statutes as uncons�tu�onal is called judicial review.
The components of a case brief are the following:
The �tle, plus cita�on. The cita�on indicates where to find the case.
The procedural facts of the case. The procedural facts discuss who is appealing and in
which court the case is located.
The substan�ve facts. The substan�ve facts discuss what happened to ins�gate the
case.
The issue. The issue is the ques�on the court is examining.
The substan�ve holding. The substan�ve holding answers the issue ques�on and is the
case law.
The procedural holding. The procedural holding discusses what the court did
procedurally with the case.
The ra�onale. The ra�onale is the reason the court held the way it did.
E X E R C I S E S
Answer the following ques�ons. Check your answers using the answer key at the end of the chapter.
1. Hal invents a new drug that creates a state of euphoria when ingested. Can Hal be criminally
prosecuted for inges�ng his new drug?
2. Read Shaw v. Murphy, 532 U.S. 223 (2001). Did the US Supreme Court allow prison inmates the
First Amendment right to give other inmates legal advice? Why or why not? The case is available at
this link: h�p://scholar.google.com/scholar_case?
case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
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3. Read Jus�ce Scalia’s dissen�ng opinion in Lawrence v. Texas, 539 U.S. 558 (2003). What is the
primary reason Jus�ce Scalia dissented to the US Supreme Court’s opinion in Lawrence? The
dissen�ng opinion is available at this link: h�p://www.law.cornell.edu/supct/html/02-102.ZD.html.
The judicial opinion in Lawrence v. Texas is available at this link:
h�p://www.law.cornell.edu/supct/html/02-102.ZS.html.
1.7 End-of-Chapter Material
Summary
A crime is action or inaction in violation of a criminal law. Criminal laws vary from state to state
and from state to federal.
The study of criminal law defines crimes and defenses to crimes. The study of criminal procedure
focuses on the enforcement of rights by individuals while submitting to government investigation,
arrest, interrogation, trial, and appeal.
A civil lawsuit or civil litigation matter resolves a dispute between individuals, called a plaintiff
(the injured party) and defendant (the alleged wrongdoer). Every civil litigation matter includes a
victim (the plaintiff), which has suffered harm. The goal of the civil litigation matter is to
compensate the plaintiff for injury. The court can compensate the plaintiff by awarding money,
which is called damages. Both parties in a civil litigation matter must represent themselves or
hire private attorneys.
A criminal prosecution takes place when the government, represented by a prosecutor, takes legal
action against the defendant (the alleged wrongdoer) for committing a crime. Some criminal
prosecutions do not include a victim, or harm, because the goal of the criminal prosecution is
punishment, not compensation. Every criminal prosecution involves the government, so the US
and state constitutions provide the criminal defendant with extra protections not present in a civil
lawsuit, such as free counsel when the defendant is indigent and facing incarceration.
Crimes can be classified according to the severity of punishment. The most serious crimes with
the entire range of sentencing options available are felonies. Misdemeanors are less serious than
felonies and have less severe sentencing options. Felony-misdemeanors can be prosecuted and
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punished as a felony or a misdemeanor, depending on the circumstances. Infractions, also called
violations, are the least serious crimes and generally do not involve incarceration. The purposes
of punishing a criminal defendant are both specific and general deterrence, incapacitation,
rehabilitation, retribution, and restitution.
Law comes from three sources: the Constitution, a statute, or a case. The Constitution is the
highest source of law but is only applicable when there is government action. Statutory law
applies to individuals but is inferior to constitutional law. Case law is law made by judges when
they rule on the facts of a case. Although case law is technically inferior to statutory law, judges
must interpret statutes and the Constitution, so case law can be the most powerful source of law.
When a case invalidates a statute as unconstitutional, this action is called judicial review. Case
law stays consistent because judges follow previous court decisions, called precedent. This policy,
called stare decisis, lends predictability to case law but is not absolute, and courts can deviate
from it to update the law.
Y O U B E T H E L A W Y E R
Read the prompt, review the case, and then decide whether you would accept or reject the case if you
were the lawyer. Check your answers using the answer key at the end of the chapter.
1. You are an expert in criminal law, not civil li�ga�on. Would you accept or reject this case? Read
Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). The case is available at this link:
h�p://scholar.google.com/scholar_case?
case=14748284771413043760&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
2. You are an expert in criminal law, not criminal procedure. Would you accept or reject this case?
Read People v. Wro�en, 2010 N.Y. Slip Op 04501 (2010). The case is available at this link:
h�p://law.jus�a.com/cases/new-york/appellate-division-first-department/2010/2010-04501.html
3. You are an expert in cons�tu�onal law. Would you accept or reject this case? Read Wilson v.
Layne, 526 U.S. 603 (1999). The case is available at this link:
h�p://www.law.cornell.edu/supct/html/98-83.ZS.html.
4. Reread ques�on 3. Change your exper�se to cons�tu�onal law as it applies to criminal
prosecu�ons. Would you accept or reject the Wilson case?
Cases of Interest
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Padilla v. Gonzales, 397 F.3d 1016 (2005), discusses malum in se and malum prohibitum
crimes: http://scholar.google.com/scholar_case?case=5187582705718052419&q=
malum+in+se+ malum+in+prohibitum&hl=en&as_sdt=2,5&as_ylo=2004&as_vis=1.
Rogers v. Tennessee, 532 U.S. 451 (2001), discusses a state’s ability to create a common-law
crime: http://www.law.cornell.edu/supct/html/99-6218.ZS.html.
Roe v. Wade, 410 U.S. 113 (1973), is the case in which the US Supreme Court invalidates a
state statute criminalizing abortion:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html.
Ar�cles of Interest
Model Penal Code: http://legal-dictionary.thefreedictionary.com/Model+Penal+Code
Stare decisis: http://civilliberty.about.com/od/historyprofiles/g/stare_decisis.htm
Websites of Interest
Federal criminal statutes: http://www.law.cornell.edu/uscode/18
State criminal statutes: http://www.legallawhelp.com/state_law.html
Government agencies in alphabetical order:
http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml
Complete federal Constitution: http://topics.law.cornell.edu/constitution
State constitutions: http://www.findlaw.com/11stategov/indexconst.html
Sta�s�cs of Interest
State prosecutors in the United States: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=9
Felony convictions in the US state courts: http://bjs.ojp.usdoj.gov/index.cfm?
ty=pbdetail&iid=2152
Estimated crime statistics in the United States:
http://www.ucrdatatool.gov/Search/Crime/State/RunCrimeStatebyState.cfm
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Answer to Exercise
From Section 1.1 "Introduction"
1. The US Supreme Court held that the attorney general cannot criminalize the use of drugs
under Oregon’s Death With Dignity Act by enforcing the Controlled Substances Act. The
Controlled Substances Act is targeted at preventing recreational drug use, and, therefore, the
Court upheld Oregon’s ability to legalize assisted suicide.
Answers to Exercises
From Section 1.2 "Criminal Law and Criminal Procedure"
1. This is an issue of criminal law. Although Paul is a law enforcement officer, when he shoots
Barney while he is facedown in handcuffs, he may be committing a crime. The question in this
case is not whether the arrest was executed properly, but whether a crime was committed
after the arrest.
2. Payton reviews a New York statute allowing law enforcement to arrest a defendant in the
home without a warrant. This case focuses on law enforcement arrest, so it examines an issue
of criminal procedure.
Answers to Exercises
From Section 1.3 "The Difference between Civil and Criminal Law"
1. This is a civil litigation matter. Although the incident involves Jerry, who is a law
enforcement officer, and it takes place while Jerry is writing a traffic ticket, Jerry is suing
Juanita for damages. Thus this is civil litigation, not criminal prosecution. If Juanita is
prosecuted for the crime of filing a false police report, then this would be a criminal
prosecution.
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2. The Johnson case reviews an award of damages and is thus a civil litigation matter. Criminal
conversation is the tort of adultery in North Carolina.
Answers to Exercises
From Section 1.4 "Classification of Crimes"
1. This crime is probably a misdemeanor because Harrison was sentenced to one year in jail,
rather than prison. Although the result, Calista’s death, is very serious, the method of killing
may have been accidental. Criminal homicide is discussed in Chapter 9 "Criminal Homicide".
2. The Iowa Court of Appeals based its ruling on New Jersey law. Although New Jersey named
the offenses “high misdemeanors,” New Jersey case law indicates that any offense with a
sentence of one year or more incarceration is a common-law felony. This triggered a
sentencing enhancement increasing the defendant’s sentence to an indeterminate sentence of
incarceration not to exceed fifteen years.
Answers to Exercises
From Section 1.5 "The Purposes of Punishment"
1. The court awards criminal restitution to the victim after a state or federal prosecutor is
successful in a criminal trial. Thus the victim receives the restitution award without paying
for a private attorney. A plaintiff that receives damages has to pay a private attorney to win
the civil litigation matter.
2. In Campbell, the defendant entered a plea agreement specifying that he had committed theft
in an amount under $100,000. The trial court determined that the defendant had actually
stolen $100,000 and awarded restitution of $100,000 to various victims. The defendant
claimed that this amount was excessive because it exceeded the parameters of the theft
statute he was convicted of violating. The Texas Court of Criminal Appeals disagreed and
held that the discretion of how much restitution to award belongs to the judge. As long as the
judge properly ascertained this amount based on the facts, restitution could exceed the
amount specified in the criminal statute the defendant was convicted of violating.
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Answers to Exercises
From Section 1.6 "Sources of Law"
1. Hal can be prosecuted for ingesting his new drug only if he is in a state that allows for
common-law crimes. The drug is new, so the state legislature will probably not have
criminalized it by enacting a statute.
2. The US Supreme Court held that inmates do not have the First Amendment right to give
other inmates legal advice. The Court based its ruling on the prison’s interest in ensuring
prison order, security, and inmate rehabilitation. The Court stated, “We nonetheless have
maintained that the constitutional rights that prisoners possess are more limited in scope
than the constitutional rights held by individuals in society at large.”Shaw v. Murphy, 532
U.S. 223, 229 (2001), accessed October 4, 2010, http://scholar.google.com/scholar_case?
case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
3. Justice Scalia criticized the US Supreme Court majority for not adhering to stare decisis.
According to Justice Scalia, the Court did not follow a recent (seventeen-year-old) precedent
set in Bowers v. Hardwick.
Answers to Law and Ethics Ques�ons
1. The reason criminal defendants get special protections not extended to civil litigation
defendants is the harshness of the punishment and the inequality of the criminal prosecution
itself. Criminal defendants may lose their life or their liberty. Civil litigation defendants risk
only a loss of money. In addition, criminal defendants face the intimidating prospect of
fighting the government and all its vast resources. Civil litigation defendants are squaring off
against another individual. As a society, we believe that there is nothing as unjust as
punishing an innocent person. Thus we give criminal defendants special protections to level
the playing field.
2. The criminal trial took place first because O. J. Simpson was a criminal defendant and
therefore had the benefit of the Sixth Amendment right to a speedy trial. Constitutional
protections are discussed in Chapter 3 "Constitutional Protections".
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Answers to You Be the Lawyer
1. In this case, the plaintiffs are seeking an injunction. The plaintiffs are not the government;
they are a group of fish. They are not suing for the goal of punishment, but rather to compel
the president of the United States and the secretary of defense to review the use of certain
naval equipment. Thus this is a civil litigation matter and you should reject the case.
2. The Court is reviewing the Sixth Amendment right to confront accusers. In this case, a
witness who was too ill to travel was permitted to testify via live, two-way video instead of
testifying in the courtroom in front of the defendant. The New York Supreme Court held that
under the circumstances, this testimony complied with the Sixth Amendment. This case
focuses on the defendant’s constitutional rights during his criminal trial, so this is a criminal
procedure issue and you should reject the case.
3. The US Supreme Court held that it is unconstitutional under the Fourth Amendment when
law enforcement brings media along while executing a search. Thus this is a federal
constitutional issue and you should accept the case.
4. In Wilson, the Court decided that the plaintiff was not entitled to damages when suing law
enforcement under 42 U.S.C. § 1983. Thus although this case involves the Fourth
Amendment, it is essentially a civil litigation matter, and you should reject the case.
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