Chapter 1
Federalism
• The United States is Divided into two sovereigns (ultimate
power) of government. - The Government of Federalism- this is
the vertical division of power as national government (federal
government) is above state government where the constitution
grants supreme over federal government.
o The Farmers of the Constitution (highest law of the land) of
the United States established these two levels to prevent
centralization of power (too much power in one group).
Belief that absolute power corrupts absolutely.
o National and Federal governments each possess authority
over citizens and over particular policies free from
interference of the government. Most crimes fall into the
jurisdiction of state courts alone. When both state and the
federal government are involved, they coordinate their
investigation and prosecution. This is a process called
cooperative federalism.
o Farmers of the Constitution established limited federal
government. Which is most governmental powers reside in
states, and the federal government being limited to the
powers delegated by the U.S. Constitution. *Found in the
10th Amendment. Reads “The powers not delegated to the
United States by the Constitution, nor prohibited to it by the
States, are reserved to the States respectively, or the
people.”
▪ *Sidebar is a meeting between the judge and the
attorney. -The meeting is for the attorney to discuss
issues the jury cannot hear.
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o State Jurisdictions regulate the health, safety, and morals
of citizens. Ex. Murder, Rape, Theft, Driving Under the
Influence of a drug, and gambling.
o Concurrent Jurisdiction acts fall into both federal and state
jurisdictions. Ex. Bank robbery of a federally insured
institution. An Act of terrorism against the United States
that harms an individual, state property, or individual
property.
o National Jurisdiction are crimes that are interstate in
character. Crimes that involve the government of the
United States, including it officials and property. Ex. Murder
of a Federal land; interstate transportation of illegal item;
and interstate flight of a felon.
o The Judicial Branch interprets/determines what written law
means of statutes and constitutions. -This highest court in
the United States is the United States Supreme Court.
Dual federalism refers to an approach under which the
states and federal government are viewed as coequals.
Located in the 10th Amendment.
o Police Power is the responsibility of states to regulate the
health and safety of citizens.
Separation of Powers
• Another division of governmental power. Includes three branches,
executive, legislative and judicial. Each branch is delegated certain
functions that the others may not intrude upon. Executive
branches consist of the President of the United States, the
president's staff, and administrative agencies that the presidents
oversee. The Executive branch enforces the laws of the federal
government created by legislation. Legislation consists of
Congress, Senate, and state legislatures. Legislative branch
consists of the United States Congress which creates the laws of
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the United States. Congressionally created laws are known as
statutes and are the adminstration of justice.
• Farmers also created a system called checks and balances. That
prevents any one branch from exclusively controlling a function.
Can be found in the Constitution.
• Congress makes the law, checked by president (who may veto) ,
then is goes back to Congress who may override the veto with two-
thirds majority.
• Judicial branch interprets criminal law, oversees criminal
adjudications, sentences offenders, and to a limited extent
oversees the entire system of adjudication and punishment. They
are also charged with the administration of justice
The Structure of the Court System
• All state and federal courts use at least two types of courts: trial
court and appellate court.
o Trial courts are when a case begins at trail court, witnessed
and evidence is presented to a jury and judge and the
verdict and sentence is announced. Federal systems, trial
courts are known as United States District Courts.
▪ The United Stated is divided into 94 judicial districts
and state boundaries are used to establish district
limits. Each state has at least one district, larger
states are divided into several districts. State trial are
also called: district, superior, county, and circuit
courts.
o Appellate courts review the decision and action of trial
courts (or lower appellate court) for error. They do not
conduct trials, but review the brief submitted by the parties
and examine the record from the trial court for mistakes
aka trial court error. After the appellate court has heard the
record and examined it for error, it renders an opinion.
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They can reverse, affirm, or remand the lower court
decision. Reverse is to determine that the lower court has
rendered a wrong decision and to change the decision.
Affirm is the appellate court approves the decision made
and leaves it unchanged. Remand is an order that the case
be returned to the lower court and some action be taken by
the judge when the case is returned. Often involving a new
trial.
▪ There are two levels of appellate court in the federal
system intermediate and highest level. Intermediate in
the federal system are the United States Courts of
Appeal. There are 11 judicial circuits in the United
States, with one court of appeal in each circuit.
Additionally, there is a court of appeal for Washington,
D.C., and for the Federal Circuit. Therefore, there are
13 United States Courts of Appeal in total. The
highest court in the country is the United States
Supreme Court. Appeals from the circuit courts are
taken to the Supreme Court. The Supreme Court is
not required to hear most appeals, and it does not.
Therefore, the States’ Supreme Courts and federal
circuit courts are often a defendant’s last chance to
have his or her case heard.
▪ Certiorari , an order from an appellate court to the
lower court requiring the record to be sent to the
higher court for review.
▪ Inferior courts are courts that fall under trial courts in
hierarchy. As such, appeals from these courts do not
usually go to the intermediate-level appellate courts,
as described earlier, but to the trial-level court first.
Municipal courts, police courts, and justices of the
peace are examples of inferior courts.
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▪ Court of record is when no digital, audio, or
stenographic recording of the trial or hearing at the
inferior court is made. Inferior court has no court of
record.
▪ De Novo means the trial-level court conducts a new
trial, rather than reviewing a record as most appellate
courts do.
▪ Most state trial courts are known as courts of
general jurisdiction. Courts of general jurisdiction
possess the authority to hear a broad range of cases,
including civil law as well as criminal. In contrast,
courts of limited jurisdiction hear only specific
types of cases.
▪ If a court interprets a statute’s meaning contrary to the
intent of a legislature, then the legislature may later
rewrite the statute to make its intent clearer. This
revision has the effect of “reversing” the judicial
interpretation of the statute. The process is much
more difficult if a legislature desires to change a
judicial interpretation of a constitution. At the national
level, the Constitution has been amended 26 times.
The amendment process is found in Article V of the
Constitution and requires action by the federal
legislature as well as by the states. Amending a
constitution is simply a more cumbersome and time-
consuming endeavor than amending legislation.
Duties and Powers of the Judicial Branch
• We work with the judicial branch most. ALL courts local, state,
and federal are bound by the U.S. Constitution. As stated the
Judicial branch is in charge with administration of justice. The
courts are the place where civil and criminal disputes are
resolved. Courts must apply the law of the land. Judges must
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interpret the legislation and constitutions of the nation. Interpret
means to read the law in an attempt to understand its meaning.
• The U.S. Constitution establishes a judiciary system that is
shielded from interference from the other two branches. For
example, the Constitution prohibits Congress from reducing the
pay of federal judges after they are appointed. This prevents
Congress from coercing the courts into action under the threat of
no pay. The Constitution also provides for lifetime appointments
of federal judges, thereby keeping the judicial branch from being
influenced by political concerns, which may cause judges to
ignore the law and make decisions based on what is best for
their political careers. Judicial independence permits courts to
make decisions that are disadvantageous to the government, but
required by law, without fear of retribution from the other two
branches.
• Judicial review is a power held by the judicial branch that
permits courts to review the actions of the executive and
legislative branches, and of the states, and declare acts that are
in violation of the Constitution void.
• Any state or federal law that violates the U.S. Constitution may
be struck down by either federal or state courts. Of course, state
laws that violate state constitutions may be stricken for the same
reason.
• The power to invalidate statutes is rarely used, for two reasons.
First, the judiciary is aware of how awesome the power is;
consequently, courts invoke the authority sparingly. Second,
many rules of statutory construction exist and have the effect of
preserving legislation. For example, if two interpretations of a
statute are possible, one that violates the Constitution and one
that does not, one rule of statutory construction requires that the
statute be construed so that it is consistent with the Constitution.
Although rarely done, statutes are occasionally determined
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invalid. In Chapters 8 and 9, on defenses, you will learn many
constitutional constraints on government behavior. These
defenses often rely on the authority of the judiciary to invalidate
statutes or police conduct to give them teeth.
Comparing Civil Law and Criminal Law
• Purposes: Criminal Law purpose provides retribution, deterrence
incapacitation, and rehabilitation. Civil Law purpose is for
compensation and deterrence.
❖ Criminal Law is to prevent behavior determined by
society to be undesirable.
• Remedies: Criminal Law remedies are fines, restitution,
imprisonment, counseling, rehabilitation, injunctions, and capital
punishment. Civil Law remedies are damages and equitable
relief.
• Parties: Criminal Law parties include government and individual
defendant. Civil Law parties include individual plaintiff and
defendant (or government as individual).
• Standard of Proof: Criminal Law has to prove beyond a
reasonable doubt. Civil Law has to prove preponderance of
evidence.
• Burdens: Criminal Law government bears burden of proof and
process designed to protect rights of defendant (due process).
Civil Law the plaintiff bears burden of proof and parties treated
equally in process
• Culpability is Blamable, at fault. A person who has done a
wrongful act (whether criminal or civil) is described as “culpable.”
The Authority of Government to Regulate Behavior
• Freedom of religious thought caused the English Puritan
emigration from England to what was to become Plymouth,
Massachusetts, in 1620. Later, freedom from the oppressive
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crown of England was the catalyst for the Declaration of
Independence and the American Revolution. Finally, the fear that
all governments tend to abuse their power led to the creation of a
constitution that contains specific limits on governmental power
and specific protections of individual rights.
• FREEDOM is the ability to act without interference. In the legal
sense freedom is the ability to act free from the interference of
the government. But personal behavior is limited, because the
actions of every member of society can affect others. Total
absence of government is called anarchy. Some people believe
freedom results from anarchy. To prevent anarchy and increase
freedom, people established governments that have authority to
regulate behavior.
• To achieve greatest freedom a delicate balance between
governmental authority and individual liberty must be struck.
Individuals do not possess absolute freedom. The Constitution
establishes a zone of freedom over which the government is
prohibited from. The individual freedoms that comprise this zone
are known as individual rights, civil rights, or civil liberties. Civil
rights are freedoms that are legally protected and enforceable.
The forefathers where sensitive to the relationship when they
met in Philadelphia to draft the Constitution of the United States.
• So the contract was formed. The people are to receive the
benefits of an organized, fair government. The government is to
establish laws designed to protect the people from one another
and from other nations. In exchange, the people agree to comply
with the laws created by their government. Many liberties are
contained in the first 10 amendments to our Constitution, which
are commonly known as the Bill of Rights.
• The Purposes of Punishing Criminal Law Violators- criminal law is
to prevent behavior determined by society to be undesirable. The
criminal justice system uses punishment as a prevention tool.
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• Specific and General Deterrence:
➢ Specific deterrence seeks to deter individuals already
convicted of crimes from committing crimes in the future. It
is a negative reward theory. The arrest and conviction of an
individual show that individual that society has the
capability to detect crime and is willing to punish those who
commit crimes.
➢ General deterrence attempts to deter all members of
society from engaging in criminal activity. In theory, when
the public observes Mr. X being punished for his actions,
the public is deterred from behaving similarly for fear of the
same punishment.
• Incapacitation:
❖ Incapacitation, also referred to as restraint, is the third
purpose of criminal punishment. Incapacitation does not
seek to deter criminal conduct by influencing people’s
choices but prevents criminal conduct by restraining those
who have committed crimes. Criminals who are restrained
in jail or prison—or in the extreme, executed—are
incapable of causing harm to the general public. This
theory is often the rationale for long-term imprisonment of
individuals who are believed to be beyond rehabilitation. It
is also promoted by those who lack faith in rehabilitation
and believe that all criminals should be removed from
society to prevent the chance of repetition.
❖ Deterrence theories are effective only for individuals who
are sufficiently intelligent to understand the consequences
of their actions, are sane enough to understand the
consequences of their actions, and are not laboring under
such uncontrollable feelings that an understanding that
they may be punished is lost.
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• Rehabilitation:
❖ Rehabilitation is another purpose of punishing criminals.
The theory of rehabilitation is that if the criminal is
subjected to educational and vocational programs,
treatment and counseling, and other measures, it is
possible to alter the individual’s behavior to conform to
societal norms.
• Retribution:
➢ Retribution, or societal vengeance, is the fifth purpose.
Simply put, punishment through the criminal justice system
is society’s method of avenging a wrong. It has also been
asserted that public retribution prevents private retribution.
That is, when the victim (or anyone who might avenge a
victim) of a crime knows that the offender has been
punished, the victim’s need to seek revenge is lessened or
removed.
• National Association of Legal Assistants and the National
Federation of Paralegal Associations codes of professional
conduct.
• Lawyers,Typical sanctions for violations are reprimands,
suspensions of the right to practice, restitution, and disbarment,
which is the permanent removal from the practice of law.
Additionally, judges possess the authority to discipline violations by
attorneys (actually anyone appearing before the court) and
contemptuous behavior with fines, temporary incarceration, and
other penalties.
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Chapter 2 Notes
2-1 The Distinction Between Criminal Law and Criminal
Procedure:
❖ Substantive law defines rights and obligations. Procedural
law establishes the methods used to enforce legal rights
and obligations. Example: Substantive contract law defines
what a contract is, tells whether it must be in writing to be
enforceable, who must sign it, what the penalty for breach is, and
other such information. Example: Procedural law tells you how to
file a lawsuit, where to file, when to file, and how to prosecute the
claim. Such is the case for criminal law and procedure.
❖ Criminal law, as a field of law, defines what constitutes a crime.
It establishes what conduct is prohibited, what punishment can
be imposed for violating its mandates, what degree of intent is
required for criminal liability, and the defenses to criminal
charges that may be asserted (such as alibi, and insanity).
❖ Criminal procedure puts substantive criminal law into action. It
is concerned with the procedures used to bring criminals to
justice, beginning with police investigation and continuing
throughout the process of administering justice.
2-2 Sources of Criminal Law:
❖ 2-2a The Common Law: The oldest form of criminal law in the
United States is the common law. The common law developed
in England and brought to the United States by the English
colonists.
➢ Common law originated in England. Common law is a
judge-made law. After American Revolutionary War it was
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adopted by each state and the national government. It was
developed by judges in both England and the United
States. (Concepts of precedence and stare decisis).
Precedent is the decision of the court. Stare decisis is
(Latin) the doctrine that judicial decisions stand as
precedents for cases arising in the future.
➢ History: Beginning with William the Conqueror in 1066
(Norman Conquest), the English monarchy began using
law to reinforce the authority of the monarchy, to increase
fairness over the existing feudal systems, to promote
economic stability and development, and to unify the
kingdom. Prior to 1066, all law in England was local and
varied. In the early years after the Norman Conquest, the
king sent his judges to hear cases throughout the nation.
These judges returned to London, where they discussed
their decisions. This process, along with the creation of
royal courts, led to the development of rules of court and
legal doctrines that would be applied in all cases. One such
doctrine, intended to make the law the judges were
applying consistent and predictable, holds that when a
court renders a legal decision, that decision is binding on
itself and its inferior courts, whenever the same issue
arises again in the future.
➢ Common Law has been abolished in some jurisdictions.
Few people want intentionally dangerous or disruptive
behavior not to be criminalized, and it appears to be
impossible for legislatures to foresee all possible acts that
are dangerous and disruptive. Those who oppose a
common law of crimes point to the concept embodied in the
phrase “nullum crimen sine lege,” which translates roughly
to “there is no crime if there is no statute.” Similarly, “nulla
poena sine lege” has come to mean that “there shall be no
punishment if there is no statute.” These concepts, when
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considered in concert, insist that the criminal law must be
written, that the written law must exist at the time that the
accused committed the act in question, and that criminal
laws be more precise than civil laws. This is the principle of
legality. Right to due process (a fair process) found in the
Fifth and Fourteenth Amendments to the Constitution.
▪ How to Brief a Case- Decisions of courts are often
written and are commonly referred to as judicial
opinions or cases. These cases are published in law
reporters so they may be used as precedent. There is
a common method that students of the law use to
read and analyze, also known as briefing, cases.
• What a judicial opinion looks like: Most
judicial opinions are written using a similar
format. First, the name of the case appears with
the name of the court, the cite (location where
the case has been published), and the year.
When the body of the case begins, the name of
the judge, or judges, responsible for writing the
opinion appears directly before the first
paragraph. The opinion contains an introduction
to the case, which normally includes the
procedural history of the case. This is followed
by a summary of the facts that led to the dispute,
the court’s analysis of the law that applies to the
case, and the court’s conclusions and orders, if
any.
• Appellate court: Most opinions used here are
from appellate courts, where many judges sit at
one time. After the case is over, the judges vote
on an outcome. The majority vote wins, and the
opinion of the majority is written by one of those
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judges. If other judges in the majority wish to
add to the majority opinion, they may write one
or more concurring opinions. Concurring
opinions appear after majority opinions in the
law reporters. When judges who were not in the
majority feel strongly about their position, they
may file dissenting opinions, which appear after
the concurring opinions, if any. Only the majority
opinion is law, although concurring and
dissenting opinions are often informative.
• Here are suggestions for reading and
understanding cases:
a. Read the case. Read the case. On your
first reading, do not take notes; simply
attempt to get a feel for the case. Then
read the case again and use the following
suggested method of briefing.
b. State the relevant facts. Often, cases read
like little stories. You need to weed out the
facts that have no bearing on the subject
you are studying.
c. Identify the Issues. Issues are the legal
questions discussed by the court.
d. State the applicable rules, standards, or
other law, as they apply to the issues you
have identified.
e. Summarize the court's decision and
analysis. Why and how did the court reach
its conclusion? Note whether the court
affirmed, reversed, or remanded the case.
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• Due Process- There are two dimensions to due
process, procedural and substantive. Procedural
due process, in both civil and criminal law,
requires that individuals be put on notice of
impending government action, be given an
opportunity to be heard and to present evidence,
and in some cases, benefit from other rights,
such as having counsel appointed and having
the case heard by a jury. Substantive due
process recognizes individual rights to act or not
to act. For example, privacy is not explicitly
protected in the Constitution of the United
States.
❖ 2-2b Statutory Law
➢ The legislative branch is responsible for the creation of law.
You have also learned that legislatures possess the
authority to modify, abolish, or adopt the common law, in
whole or in part.
➢ Although the power of the legislative branch to declare
behavior criminal is significant, there are limits. The
constitutions of the United States and of the many states
contain limits on such state and federal authority. Most of
these limits are found in the Bill of Rights. For example, the
First Amendment to the federal Constitution prohibits
government, with few exceptions, from punishing an
individual for exercising choice of religion and for
expressing opinions and thoughts. If a legislature enacts a
law that violates a constitutional provision, it is the duty of
the judicial branch to declare the law void. * You need only
understand that legislatures do not have unlimited
authority to create criminal law.
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❖ 2-2c Ordinances: are written laws of municipalities. Ordinances
are laws enacted by city, county, and other local governments.
Ordinances can be administrative or civil in nature, e.g., zoning,
building, construction, and related matters). Municipalities also
be empowered by state law to make criminal laws.
➢ States limit the power of cities to punish for ordinance
violations, and most city court trials are to the bench, not to
a jury.
❖ 2-2d Administrative Law:
➢ Agencies are governmental units, federal, state, and local,
that administer the affairs of the government. There are two
types of agencies: social welfare and regulatory. Social
welfare agencies put into effect government programs.
Example State Department of Public Welfare administers
the distribution of public money to those deemed needy.
Or, regulatory, Example State Medical Licensing Boards
are regulatory, because their duty is to oversee and
regulate the practice of medicine.
➢ Legislatures do not posse the time or expertise to write
precise statutes, they enact very general statutes. Those
statutes grant administrative agencies the authority to
make more precise laws. Administrative laws are known as
regulations or rules.
➢ Agencies authority: So, an agency may be delegated the
authority to declare acts criminal. Congress must provide at
least an “intelligible principle,” and possibly more, when
making this type of delegation. Congress may not delegate
the authority to set a penalty to an agency, although it may
allow the agency to set the penalty for a violation from
within statutory guidelines. An agency may not, however,
establish more serious penalties, such an imprisonment,
even if the sentences fall within statutory limits.
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➢ While agencies may not sentence individuals to
imprisonment, legislatively endorsed, noncriminal
deprivations of freedom may be ordered by agencies in
rare circumstances, such as during quarantines, for
psychiatric evaluations and treatment, and to detain illegal
immigrants.
❖ 2-2e Court Rules
➢ Where established to fill in the gaps because statutes
where not specific enough to satisfy the needs. The United
States Congress and all of the state legislatures have
enacted some form of statute establishing general rules of
civil and criminal procedure.
➢ To fill in the gaps left by legislatures, courts adopt court
rules , which also govern civil and criminal processes.
Although court rules deal with procedural issues (such as
service of process, limits on the length of briefs and
memoranda, and timing of filing) and not substantive
issues, they are important. Of course, court rules may not
conflict with legislative mandates. If a rule does conflict with
a statute, the statute is controlling. One exception to this
rule may be when the statute is unconstitutional and the
rule is a viable alternative, but discussion of this situation is
best left to a course on constitutional law and judicial
process.
➢ How Court Rules are created and why? Most court rules
are drafted under the direction of the highest court of the
state and become effective by either vote of the court or
presentation to the state legislature for ratification. In the
federal system, the rules are drafted by the Judicial
Conference under the direction of the Supreme Court and
then presented to Congress. If Congress fails to act to
nullify the rules, they become law. Of course, Congress
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may amend the rules at will. Many jurisdictions also have
local rules, that is, rules created by local courts for practice
in those courts. The rules cannot conflict with either
statutes or higher court rules. In the federal system, district
courts adopt local rules. Being familiar with the rules of the
courts in your jurisdiction is imperative. If you are not, you
may miss important deadlines, file incomplete documents,
or have your filings stricken.
❖ 2-2f The Model Penal Code
➢ Actually, entitled Model Penal Code and Commentaries, it
was drafted by a group of scholars and practitioner's expert
in criminal law while working for the American Law Institute,
a private organization. The intent of the drafters of the
Code was to draft a consistent, thoughtful code that could
be recommended to the states for adoption. The code itself
is not law until adopted by a legislature.
➢ According to one source, by 1985, 34 states had “enacted
widespread criminal-law revision and codification based on
its provisions; fifteen hundred courts had cited its
provisions and referred to its commentary. Appendix B has
edited form.
❖ 2-2g Constitutional Law
➢ The U.S. Constitution, primarily through the Bill of Rights, is
responsible for establishing many of the rules governing
criminal procedure.
➢ Most state constitutions mirror the federal constitution,
often verbatim. In spite of this, state courts are free to
interpret their constitutional provisions as providing more
protection than their federal counterparts, even if identical
in text.
