The Foundation of Criminal Justice

© Jones & Bartlett Learning, LLC © JonesFoundation & Bartlett Learning, LLC NOT FOR SALEhroughout OR DISTRIBUTION history, the creation NOT FOR SALE OR DISTRIBUTION Tand evolution of law have been instrumental in promoting and of Criminal regulating social behavior. Aristotle, for example, believed that law is the essence of social ©order: Jones Good & socialBartlett Learning, LLCJustice © Jones & Bartlett Learning, LLC order can be builtNOT only onFOR good SALE law; OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION bad law can also produce social order, but such order may not be desirable.1 Law, however, is not inherently good OBJECTIVES or bad, nor has it always accomplished Grasp the relationship between civil and criminal its© goals.Jones Law & is Bartlettgood to the Learning, extent that LLC © Jones & Bartlett Learning, LLC law, and describe how the law distinguishes itNOT is used FOR or adheredSALE ORto lawfully. DISTRIBUTION If NOT FOR SALE OR DISTRIBUTION those individuals who are responsible among different levels of seriousness. for administering law fail to operate Identify the essential elements of a crime, according to the accepted rules, law including actus reus and mens rea. may become oppressive and a tool of © Jones & Bartlettmanipulation. Learning, LLC © Jones Know & theBartlett meaning Learning, and uses of LLC the various NOT FOR SALELaws OR are DISTRIBUTION formalized rules that pre- NOT FORjustifi SALEcations, ORexcuses, DISTRIBUTION and exemptions that may scribe or limit actions. Criminal law is bar legal liability. one category of law, which consists of Understand the Constitutional amendments that the two subcategories of substantive deal with due process, the rights of the accused, criminal law and procedural criminal and the applicability of these principles. law. Substantive ©criminal Jones law & iden-Bartlett Learning, LLC © Jones & Bartlett Learning, LLC tifi es behaviors consideredNOT FOR harmful SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION to society, labels those behaviors as crimes, and specifi es their punishments. Procedural criminal law specifi es how crimes are to be investigated and prosecuted.© Jones Together, & Bartlett substantive Learning, criminal LLC © Jones & Bartlett Learning, LLC lawNOT and FOR procedural SALE criminal OR DISTRIBUTION law form NOT FOR SALE OR DISTRIBUTION the foundation of the U.S. system of criminal justice.

Opener image: © miﬂ ippo/iStock/Getty; Texture: © echo3005/Shutterstock.

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48 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

© Jones & BartlettCommon Learning, Law andLLC the Concept © Jones & Bartlett Learning, LLC NOT FOR SALEof Stare OR DISTRIBUTION Decisis NOT FOR SALE OR DISTRIBUTION Although the early legal codes laid a foundation for formalizing principles and customs into law, it was the emergence of English common law that held the greatest significance for the development of criminal law in the United States.© Jones The first & Bartlettwritten criminal Learning, laws LLC © Jones & Bartlett Learning, LLC were established byNOT Æthelbert FOR (560–616), SALE OR King DISTRIBUTIONof Kent, NOT FOR SALE OR DISTRIBUTION and contained 90 decrees, or dooms. Kings Hlothháere and Eadric, succeeding Kings of Kent, issued dooms that also contributed early legal procedures. King Alfred the Great (871–899) incorporated the best of © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC the laws established by earlier kings, extending them All laws in the United States must be in accordance with the intoNOT the FOR first SALEbody of ORcommon DISTRIBUTION law, intending it to Constitution.NOT FOR SALE OR DISTRIBUTION apply to both the rich and the poor. However, there © James Steidl/Shutterstock. were no lawyers, no juries, and kings were the only judges. It took another 250 years and contributions legal decisions, discover the principles embodied in from many succeeding kings to set the stage for the them, and apply those principles to new situations.3 © Jones & Bartlettchanges broughtLearning, to England LLC by William the Con-© Jones & Bartlett Learning, LLC Common law, with its reliance on precedent, NOT FOR SALEqueror, OR including DISTRIBUTION a strong centralized governmentNOT FOR SALE OR DISTRIBUTION continued to evolve with little centralized planning and a common law for the country.2 or deliberation about what the law should contain. The tradition of common law allowed judges to Consequently, the common law of England existed as determine which behaviors constituted crimes and an unsystematic compilation and recording of thou- what appropriate punishment should be imposed sands of cases over the years.4 Although the signing of when they were violated,© Jones thus & establishing Bartlett aLearning, body of LLC © Jones & Bartlett Learning, LLC the Magna Carta by King John in 1215 established the law common to theNOT entire FOR nation. SALE One OR of the DISTRIBUTION most NOT FOR SALE OR DISTRIBUTION first set of statutory laws (formal written enactments important concepts operating in common law was of a governing or legislative body), it was not until the doctrine of precedent, or stare decisis (literally, the 16th century that the English Parliament began “to stand by the decisions”). This doctrine allows enacting legislation, thereby shifting the country’s legal courts to interpret and apply law based on previous system from common law to codified statutory law. court© Jones decisions. & Bartlett According Learning, to stare decisis LLC, judges were © Jones & Bartlett Learning, LLC requiredNOT FOR to decide SALE new OR cases DISTRIBUTION in a manner consistent NOT FOR SALE OR DISTRIBUTION with principles established in prior cases. To the extent Contemporary Sources that a new case was substantially similar to a previous of Criminal Law one, the judge was required to interpret the law in the Criminal law in the United States has largely grown same way and follow the precedent. Judges were not © Jones & Bartlett Learning, LLC © Jonesout of & English Bartlett common Learning, law, which LLC was first brought supposed to create laws, but they could study past over to America during the colonial period. However, NOT FOR SALE OR DISTRIBUTION NOT AmericansFOR SALE desired OR a codifiedDISTRIBUTION system of law to provide greater uniformity, standardization, and predictabil- Key Terms ity. As a result, the states and the federal government laws began to formalize law by developing statutes and Formalized rules that© Jonesprescribe &or limitBartlett actions. Learning, LLCby drawing upon a number© of Jones other sources—case & Bartlett Learning, LLC substantive criminal law law, administrative rules, and the constitutions of the NOT FOR SALE OR DISTRIBUTIONvarious states and the federalNOT government. FOR SALE Today, theOR DISTRIBUTION A body of law that identifies behaviors harmful to society and specifies their punishments. United States has federal laws that apply to everyone in the United States and its territories, and each state/ procedural criminal law territory establishes its own criminal laws, which are A body of law that specifies how crimes are to be written as statutes. ©investigated Jones & and Bartlett prosecuted. Learning, LLC © Jones & Bartlett Learning, LLC NOTcommon FOR law SALE OR DISTRIBUTION StatutesNOT FOR SALE OR DISTRIBUTION Case decisions by judges in England that established Criminal law is contained in written codes called a body of law common to the entire nation. statutes. According to the balance of powers established stare decisis in the U.S. Constitution, the law-making function © Jones & BartlettLiterally, Learning,“to stand by the LLC decision”; a policy of © Jonesresides & inBartlett the legislative Learning, branch LLC rather than in the the courts to interpret and apply law according to judicial branch of government. Congress and state NOT FOR SALEprecedents OR DISTRIBUTION set in earlier cases. NOT legislaturesFOR SALE are responsibleOR DISTRIBUTION for enacting statutes that statute define crimes (substantive laws). For example, homi- Legislation contained in written legal codes. cide statutes define the difference between first-degree

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PART 1 Crime and Criminal Justice 49

murder and manslaughter. These statutes also specify criminal act for a police officer to intentionally kill © Jones & Bartlettthe applicable Learning, penalties LLC for their violation, as well as© Jonesan armed & Bartlett suspect inLearning, self-defense. LLC NOT FOR SALElaw governing OR DISTRIBUTION legal procedures (procedural laws). NOT FORCrime SALE is also aOR failure DISTRIBUTION to act (e.g., not paying income tax). At various times in history, a condition of being Case Law or status was included in definitions of crime. For Case law is a continuation of the common-law tradition example, during the 17th century, Massachusetts Bay in which judicial decision making in individual cases © Jones & Bartlett Learning, LLCColony made it a crime to be© aJones Quaker. & Until Bartlett 1962, Learning, LLC involves interpreting existing law, looking at relevant in California it was illegal to “be addicted to the use precedent decisions,NOT and FOR making SALE judgments OR DISTRIBUTION about of narcotics.” (The statute NOTwas eventually FOR SALE declared OR DISTRIBUTION the legitimacy of the law. Because gaps will inevitably unconstitutional by the U.S. Supreme Court.6) exist between what a legislative body intends when it Are crimes that are either intentional acts in viola- passes a law and what actually happens when that law tion of law or acts of omission when required by the is enforced, the practice of case law allows the courts © Jones & Bartlett Learning, LLC law morally© wrongJones when & Bartlett persons engaging Learning, in such LLC to interpret the law as they apply it.5 The U.S. Supreme acts suffer social injustice at the hands of society? CourtNOT is FOR the most SALE influential OR DISTRIBUTION within the entire court This questionNOT is consideredFOR SALE in theOR following DISTRIBUTION Focus system. The decisions of the Supreme Court provide legal on Criminal Justice box. guidelines for the rulings of lower courts (stare decisis). Administrative Rules Seriousness of the Crime © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC The rules, orders, decisions, and regulations estab- Generally speaking, acts that are defined as crimes NOT FOR SALElished OR by state DISTRIBUTION and federal administrative agencies areNOT areFOR considered SALE OR more DISTRIBUTION serious violations of norms another source of law. The Federal Trade Commission (rules that regulate behavior) than are noncriminal (FTC), Internal Revenue Service (IRS), Food and Drug acts. Nevertheless, perceptions of the seriousness Administration (FDA), and Environmental Protection of certain crimes may vary among different times, cultures, and societies. According to public opinion Agency (EPA), for© example, Jones &have Bartlett all established Learning, a LLC © Jones & Bartlett Learning, LLC multitude of rules and regulations that have the full polls, most Americans agree that violent crimes are force and effect ofNOT law. FORThese SALEagencies OR investigate DISTRIBUTION more serious than propertyNOT crimes, FOR but SALE there areOR DISTRIBUTION and impose criminal sanctions for such violations gradations—most people see a parent’s assault on as securities fraud, the willful failure to pay income a child as more serious than a husband’s assault on tax, the intentional sale of contaminated food, and his wife, and selling heroin is generally considered 7 the dumping of toxic wastes. to be a more serious crime than selling marijuana. © Jones & Bartlett Learning, LLC In the United© Jones States, people& Bartlett who engageLearning, in sexual LLC ConstitutionsNOT FOR SALE OR DISTRIBUTION relations beforeNOT marriageFOR SALE may beOR breaking DISTRIBUTION the law The U.S. Constitution and each of the 50 state con- in some states (e.g., Florida, Michigan, Mississippi, stitutions are the final arbiters of substantive and North Dakota, and Virginia), though there is little procedural law. A law enacted by a state legislature chance of prosecution. In China, however, persons may be found to be in violation of either that state’s engaged in the same behavior may be charged with 8 © Jones & Bartlettconstitution Learning, or the U.S. LLC Constitution. Federal laws,© Jonesprostitution & Bartlett (for females) Learning, or rape LLC (for males). NOT FOR SALEregulations, OR DISTRIBUTION or administrative acts may be judged onlyNOT FOR SALE OR DISTRIBUTION against the U.S. Constitution. In addition, the Bill of Mala in Se Crimes Versus Mala Rights, which was added to the U.S. Constitution in Prohibita Crimes 1791, includes protections afforded to defendants in In the early development of criminal law, all crimes criminal prosecutions (such as the right to counsel, © Jones & Bartlett Learning, LLCwere considered wrong for one© Jones of two reasons: & Bartlett They Learning, LLC prohibitions against illegal search and seizure, and were considered inherently wrong or evil (mala in se) the right to due process),NOT FOR reflecting SALE the OR framers’ DISTRIBUTION fear NOT FOR SALE OR DISTRIBUTION of a strong centralized government. Key Terms case law Conceptualizing Crime Law that emerges when a court modifies how a law © Jones & Bartlett Learning, LLC in a particular© Jones case is applied. & Bartlett Learning, LLC Crime is an intentional act or omission in violation ofNOT criminal FOR law, SALE committed OR withoutDISTRIBUTION defense or excuse, Bill of RightsNOT FOR SALE OR DISTRIBUTION and sanctioned (i.e., punishable) by the state. Crime is First 10 amendments to the U.S. Constitution. essentially a legal construct, because the law narrowly crime defines the specific elements of the forbidden act and An intentional act or omission to act, neither justified © Jones & Bartlettthe conditions Learning, under which LLC they occur. For example,© Jonesnor excused,& Bartlett that is Learning, in violation of LLC criminal law and intentionally taking the life of another person may punished by the state. NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION or may not constitute a crime. Although it would be mala in se a crime for a person to intentionally kill his or her Behaviors, such as murder or rape, that are spouse to collect life insurance, it would not be a considered inherently wrong or evil.

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50 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

© Jones & BartlettFocus Learning, on Criminal LLC Justice © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Is Criminal Behavior in an Unjust Society Morally Wrong?

Jeffrey Reiman argues that, according to the social contract, If a person, even in a perfectly just society, mistakenly citizens have a moral© Jones obligation & to Bartlett obey the lawsLearning, of the LLCbelieves that he or she is a victim© of Jonesinjustice, would& Bartlett this be Learning, LLC state if such obedience will benefi t citizens suffi ciently to a justifi cation for violating the law? According to Reiman, make it a reasonableNOT bargain. FOR Thus, SALE “the duty OR to DISTRIBUTIONobey the a person is left with two conﬂ ictingNOT moral FOR principles: SALE the OR DISTRIBUTION laws is conditioned on the justice of the society that those fi rst suggests that for victims of injustice, there is little laws govern.” But this means that citizens have less moral or no obligation to obey the law; the second argues that obligation to obey laws when they suffer social injustice; secure peace and freedom for all is possible only if all that is, when they do not get their “rightful share” of citizens obey the law, even if they are victims of injustice. ©social Jones benefi & ts. Bartlett Reiman goes Learning, on to suggest, LLC “The social Is punishment© Jones justifi ed & for Bartlett the large portionLearning, of people LLC NOTcontract FOR forces SALE us to consider OR DISTRIBUTION that a crime committed by convicted ofNOT crimes FOR but who SALE are also OR victims DISTRIBUTION of social the victims of [social] injustice may also be a matter of injustice—that is, those who receive less than their reclaiming what is rightfully their own, and thus is not a “rightful share” of social benefi ts? Should the punishment crime in the moral sense.” be based on the legal wrong they commit or mitigated However, social justice and social injustice are not based on the moral wrong created by society that led to © Jones & Bartlettobjective, Learning, nor are they consensually LLC shared understandings.© Jonesthe criminal & Bartlett behavior? Learning, LLC

NOT FOR SALESource: OR Reiman, DISTRIBUTION J. (2007). The moral ambivalence of crime in an unjustNOT society. FORCriminal SALEJustice Ethics, OR 26, 3–15.DISTRIBUTION

or they were wrong© Jonesmerely because & Bartlett they wereLearning, pro- LLCseverely punished. Mala prohibita© Jones crimes, such& Bartlett as public Learning, LLC hibited by a criminalNOT statute FOR (mala SALE prohibita OR DISTRIBUTION). Only drunkenness, loitering, prostitution,NOT FOR and SALE gambling, OR DISTRIBUTION nine common-law crimes were classifi ed as mala in se did not carry the same broad moral condemnation. offenses: Table 3.1 presents a brief list of examples of mala in • Murder se and mala prohibita crimes today. • Manslaughter The basic distinction between these two groups ©• Jones Rape & Bartlett Learning, LLC of crimes ©persists Jones in present-day& Bartlett criminal Learning, law. TheLLC NOT• Sodomy FOR SALE OR DISTRIBUTION offenses classifiNOT edFOR asmala SALE in se ORcrimes DISTRIBUTION have largely • Robbery remained the same, but the number of mala prohibita • Larceny • Arson Table 3.1 Examples of Contemporary Mala in Se and • Burglary Mala Prohibita Crimes © Jones & Bartlett• Mayhem Learning, LLC © Jones & Bartlett Learning, LLC Mala in Se Mala Prohibita NOT FOR SALEThese OR offenses DISTRIBUTION were also the fi rst group of crimes toNOT FOR SALE OR DISTRIBUTION be referred to as felonies. The mala prohibita crimes, Murder Prostitution by comparison, were considered less serious and Rape Gambling consequently were classifi ed as misdemeanors. Robbery Vagrancy (loitering) The signifi cant ©historical Jones distinction & Bartlett between Learning, these LLCLarceny Panhandling© Jones & Bartlett Learning, LLC two categories of crimes refl ects perceptions of the Arson Fraud degree of public harmNOT they FOR present. SALE Because OR mala DISTRIBUTION in se NOT FOR SALE OR DISTRIBUTION crimes were believed to be inherently evil and to pose a Burglary Public intoxication major threat to the social order, it was understandable Aggravated assault Public nudity that they would be sanctioned by the law and more Incest Trespassing © Jones & Bartlett Learning, LLC © Jones & BartlettPossession Learning, of drug LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALEparaphernalia OR DISTRIBUTION Key Term Copyright infringement mala prohibita Illegal possession of a Behaviors, such as prostitution and gambling, that are weapon considered wrong because they have been prohibited Disorderly conduct © Jones & Bartlettby criminal Learning, statutes, rather LLC than because they are evil © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning. NOT FOR SALEin themselves. OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

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PART 1 Crime and Criminal Justice 51

crimes has greatly expanded. For example, statutes have if two gang members are overheard by corrections © Jones & Bartlettbeen enacted Learning, to prohibit LLC driving under the influence© Jonesofficers & Bartlettplanning the Learning, “hit” (murder) LLC of another inmate. NOT FOR SALEof alcohol OR orDISTRIBUTION drugs, copyright infringement, and theNOT InFOR this SALEscenario OR the perpetratorsDISTRIBUTION were caught before manufacture, distribution, and possession of illegal the crime took place, however they could be charged drugs. Statutes also have been created to control with conspiracy to commit a crime. cybercrimes, including theft of information, creation Finally, solicitation or the hiring or encouraging of of computer viruses© to Jones cause mischief & Bartlett or damage Learning, data, LLCanother person to commit ©a crime Jones can & be Bartlett classified Learning, LLC copying software, downloading of copyright-protected as a inchoate offense. For example, in 2015 a man music or movies, NOTand identity FOR theft.SALE OR DISTRIBUTIONin Kentucky tried to hire someoneNOT FOR on theSALE Internet OR DISTRIBUTION to kill his wife for insurance money. The person Categories of Crime he tried to hire turned him in and the murder was U.S. criminal law distinguishes among felonies, never attempted, so law enforcement could arrest the 11 misdemeanors,© Jones & Bartlettinfractions, Learning, and inchoate LLC crimes and husband on© solicitation.Jones & Bartlett Learning, LLC assigns punishments accordingly. One distinction between felonies and misde- NOTThe most FOR serious SALE crimes, OR DISTRIBUTIONcalled felonies, result in meanors involvesNOT FOR the authority SALE ORof law DISTRIBUTION enforcement a more severe punishment. In most states, felonies officers to make arrests. When an officer has rea- carry maximum sentences of death or imprisonment sonable grounds to believe that a felony has been for a term greater than one year in a state prison committed, even when he or she did not directly © Jones & Bartlettand typically Learning, carry higher LLC fines than misdemeanors.© Jonesobserve & Bartlettthe act, the Learning, officer may LLC arrest a suspect. By For example, in California, first-degree robbery can contrast, many states have an in-presence requirement NOT FOR SALEresult ORin a sentenceDISTRIBUTION of three to nine years in prison.9NOT forFOR misdemeanors, SALE OR meaningDISTRIBUTION that an arrest may not A felony conviction also may result in the loss of be made unless the criminal act was committed in certain rights, such as the loss of a person’s right to the presence of the officer. However, if the victim vote, hold public office, carry a gun, or be licensed of a misdemeanor files a formal complaint and the in certain professions.© Jones & Bartlett Learning, LLCcourt issues an arrest warrant,© Jones the officer & Bartlett may then Learning, LLC arrest the suspect. Crimes classifiedNOT as FOR misdemeanors SALE OR carry DISTRIBUTION less NOT FOR SALE OR DISTRIBUTION severe punishments than are meted out for felonies. Typically, the maximum incarceration sentence is Elements of a Crime one year or less in a local jail and a smaller fine than would be incurred with a felony. In Colorado, theft Part of the legal definition of crime is what is known of© anJones item that & Bartlett is worth betweenLearning, $50 LLCand $350 is as the corpus© Jones delicti (literally, & Bartlett “body Learning, of the crime”), LLC aNOT Class FOR3 misdemeanor, SALE OR which DISTRIBUTION can result in a jail which refersNOT to the FOR facts, SALE or foundation, OR DISTRIBUTION of the crime sentence of up to six months and a fine between that must be established in a court of law. In other $50 and $750.10 words, the state must prove that a specific criminal The third category of crimes, called infractions, is composed of petty offenses. These involve viola- © Jones & Bartletttions of cityLearning, or county LLCordinances and include such© JonesKey & TermsBartlett Learning, LLC offenses as illegal parking, jaywalking, cruising, and NOT FOR SALEviolations OR DISTRIBUTIONof noise ordinances. Infractions are genNOT- FORfelony SALE OR DISTRIBUTION erally not punishable by incarceration; rather, fines A serious crime, such as robbery or embezzlement, or community service may be imposed. that is punishable by a prison term of more than one year or by death. A final category worth mentioning is inchoate misdemeanor offenses, which are© incomplete Jones & crimes. Bartlett Such Learning, a charge LLC © Jones & Bartlett Learning, LLC can occur when an individual is caught acting in crim- A crime that is less serious than a felony, such as inal manner but isNOT unable FOR to complete SALE a ORcriminal DISTRIBUTION act. petty theft or possession of aNOT small amountFOR SALEof OR DISTRIBUTION Consider the following scenario. An employee arrives marijuana, and that is punishable by less than one to work in the morning to open the store and someone year in prison. trying to break into the back door. The employee calls infraction A violation of a city or county ordinance, such as 911© Jonesand law & enforcement Bartlett Learning, arrest the suspect LLC fleeing © Jones & Bartlett Learning, LLC the scene of the crime. In this instance, the suspect cruising or noise violations. mayNOT be FORarrested SALE and charged OR DISTRIBUTION with attempted burglary inchoateNOT offense FOR SALE OR DISTRIBUTION which is an inchoate or incomplete offense because An incomplete offense. they were caught before the burglary was complete. corpus delicti A second form of inchoate offense is conspiracy. Literally, “the body of the crime”; the material © Jones & BartlettHere a criminal Learning, act is communicated LLC between two or© Joneselements & Bartlett of the crime Learning, that must be LLC established in a more people planning to commit a crime; for example, NOT FOR SALE OR DISTRIBUTION NOT FORcourt ofSALE law. OR DISTRIBUTION

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52 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

law has been violated and that the defendant intended held criminally liable for the intoxication of their © Jones & Bartlettto violate Learning, the law. These LLC elements include actus reus© Jonesguests & who Bartlett are later Learning, involved in LLCfatal accidents. The NOT FOR SALE(criminal OR act),DISTRIBUTION mens rea (criminal intent), and theNOT factFOR that SALE neither OR the DISTRIBUTIONbartender nor the host had any concurrence of these two concepts. intention to cause the intoxication or the subsequent accident is neither a required element of proof nor a Actus Reus valid defense. Penalties for strict liability violations © Jones & Bartlett Learning, LLCtypically involve fines rather© Jonesthan jail & time. Bartlett Learning, LLC In his novel 1984, George Orwell described a society Different degrees of criminal intent exist, and in which both thoughtsNOT FOR and SALEacts were OR restrained DISTRIBUTION there are even some exceptionsNOT to FOR the requirement SALE OR DISTRIBUTION 12 and regulated by the Think Pol, or thought police. that intent be present. In an attempt to create greater Through constant surveillance, the Think Pol were legal uniformity among the states, the American able to monitor and then punish any expression of Law Institute wrote a Model Penal Code in 1962. prohibited thoughts. U.S. law, however, generally © Jones & Bartlett Learning, LLC It identifies© Jones levels of& criminalBartlett responsibility, Learning, LLC or limits criminal responsibility to actus reus—an culpability, reflecting differing degrees of intent actualNOT act, FOR the planningSALE OR or attempt DISTRIBUTION to act in violation to act: TheNOT person FOR must SALE have “acted OR DISTRIBUTION(1) purposely, of the law, or the specific omission to act when the (2) knowingly, (3) recklessly, or (4) negligently, as law requires action. The written or oral expression the law may require, with respect to each material of certain thoughts, such as making threats or intim- element of the offense.”14 idating remarks to a witness, may also be viewed • Purposely means to act with conscious deliber- © Jones & Bartlettas actus reusLearning, and, therefore, LLC may be prohibited by© Jones & Bartlett Learning, LLC ation, planning, or anticipation to engage in NOT FOR SALEcriminal OR law. DISTRIBUTION NOT FOR SALE OR DISTRIBUTION some conduct that will result in specific harm. • A person acts knowingly when he or she is aware Mens Rea that the conduct is prohibited or will produce a According to an old Latin maxim, an act does not forbidden result. make a person guilty© Jones unless &the Bartlett mind is guilty.Learning, In LLC• Acting recklessly involves© consciousJones & disregard Bartlett of Learning, LLC other words, a defendantNOT FOR is not SALE criminally OR liable DISTRIBUTION for a known risk, althoughNOT there FOR is no SALE conscious OR DISTRIBUTION conduct unless mens rea (criminal intent) was present intent to cause the harm (such as speeding at the time of the act. For a crime to exist, the person and unintentionally causing an automobile must intend for his or her action to have a particular accident). consequence that is a violation of the law. The mere • Negligent conduct creates a risk of harm when fact© Jones that a person & Bartlett engages Learning,in conduct in LLC violation of an individual© Jones is unaware, & Bartlett but should Learning, have been LLC lawNOT is not FOR sufficient SALE to ORprove DISTRIBUTION criminal liability; rather, aware.NOT In other FOR words, SALE to be OR negligent, DISTRIBUTION a person the defendant must also intend to commit the crime. As must engage in conduct that a reasonable person former Supreme Court Justice Oliver Wendell Holmes would not engage in, or an individual must fail once noted, “Even a dog distinguishes between being to act (an omission) in the manner in which a stumbled over and being kicked.”13 reasonable person would act under the same or © Jones & BartlettHowever, Learning, strict liability LLC laws, in which there is© Jones similar& Bartlett circumstances. Learning, LLC NOT FOR SALEliability OR without DISTRIBUTION culpability, are an exception. StrictNOT FOR SALE OR DISTRIBUTION liability laws provide for criminal liability without requiring intent; in other words, a person may Concurrence of Actus Reus be held criminally responsible even though he or and Mens Rea she had no intent to produce the harm. For example, bartenders have been© Jones held criminally & Bartlett liable Learning, for the LLCFor an act to be considered criminal,© Jones both & the Bartlett act (actus Learning, LLC intoxication of patrons, and hosts of parties have been reus) prohibited by criminal law and the intent (mens NOT FOR SALE OR DISTRIBUTIONrea) prohibited by the criminalNOT law FOR must SALE be present OR DISTRIBUTION before the crime is completed. The presence of both the guilty act and a guilty mind is called concurrence. Key Terms It is not sufficient for an act to be defined as a crime © Jones & Bartlett Learning, LLC if the person© Joneshas only & the Bartlett guilty mind Learning, but commits LLC actus reus no act. Nor is it sufficient for a person to have acted NOTGuilty FORact; a requiredSALE material OR DISTRIBUTION element of a crime. without criminalNOT FOR intent, SALE with theOR exception DISTRIBUTION noted mens rea earlier of strict liability offenses. Guilty mind, or having criminal intent; a required Concurrence may exist even if the act and the intent material element of most crimes. do not coincide as the offender intended. Suppose © Jones & Bartlettstrict liability Learning, laws LLC © JonesDewayne & Bartlett aimed a gunLearning, at William LLC and shot with the Laws that provide for criminal liability without intent to kill him, but missed, hitting and killing NOT FOR SALErequiring OR eitherDISTRIBUTION general or specific intent. NOT SherryFOR SALEinstead. OR Dewayne DISTRIBUTION is still liable for murder

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under the doctrine of transferred intent. The intent Self-Defense © Jones & Bartlettto kill, in Learning,other words, isLLC transferred from William to© Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT DefendantsFOR SALE who OR raise DISTRIBUTION the claim of self-defense Sherry. If the bullet missed both William and Sherry as a justification for avoiding criminal responsi- but instead hit an electrical transformer and caused a bility argue that they acted in a lawful manner to fi re, Dewayne would not be responsible for the crime defend themselves, others, or their property, or of arson, because he did not intend to commit this to prevent a crime. Most states permit a person to specifi c act, though© Joneshe may still& Bartlett be held responsible Learning, LLCuse as much force as is reasonably© Jones necessary & Bartlett for Learning, LLC for reckless behavior. NOT FOR SALE OR DISTRIBUTIONsuch protection. The individualNOT FOR must SALE also have OR DISTRIBUTION an honest and reasonable belief that he or she is Defenses and Responsibility in immediate danger from unlawful use of force by another person. The degree of force used in Society and criminal law have long recognized that one’s self-defense must be limited to a reasonable certain© Jones actions & mayBartlett be justifi Learning, ed or excused, LLC such that response to© theJones threat. & Bartlett Learning, LLC theNOT offender FOR does SALE not bearOR legalDISTRIBUTION liability for the act. AccordingNOT to FORthe Model SALE Penal OR Code,DISTRIBUTION deadly Sometimes these justifi cations and excuses, which are force may be used only in response to a belief that called defenses, are based on the mental state of the there is imminent threat of death, serious bodily person at the time the act was committed. At other harm, kidnapping, or rape. It may not be used if times, circumstances beyond the individual’s control the defendant provoked the offender to use force. © Jones & Bartlettmay come Learning, into play that LLC may negate criminal liability.© JonesSome & jurisdictions Bartlett Learning, also require LLC that when a safe NOT FOR SALEJustifi OR cations DISTRIBUTION and excuses are affi rmative defenses;NOT escapeFOR SALEroute from OR aDISTRIBUTION house is available, a person that is, the defendant must prove that his or her act must retreat instead of using deadly force. Thus, if was justifi ed or excused. a person has an opportunity to retreat safely from John Hinckley, Jr.’s shooting of President Ronald the person posing the threat, deadly force would Reagan in 1981 was seen by millions of people as not be justifi ed as self-defense. This retreat rule has they watched the television© Jones news, & Bartlett yet Hinckley’s Learning, suc- LLCseveral exceptions, such as ©cases Jones of battered & Bartlett spouse Learning, LLC cessful defense ofNOT “not guilty FOR by SALE reason OR of insanity” DISTRIBUTION syndrome (see the followingNOT Focus FOR on SALE Criminal OR DISTRIBUTION prevented him from being convicted for the crime. Justice box). In this case, the defendant did not deny engaging in the action: Hinckley did shoot Reagan. Never- theless, his defense of insanity successfully allowed Key Terms him© Jones to avoid & being Bartlett held criminallyLearning, responsible LLC for justifi cation© Jones & Bartlett Learning, LLC theNOT assault. FOR SALE OR DISTRIBUTION Defense whereinNOT FORa defendant SALE admits OR responsibility DISTRIBUTION but argues that, under the circumstances, what he or she did was right. Justifi cations self-defense Justifi cations are based on a defendant admitting Claim that a defendant acted in a lawful manner © Jones & Bartlettresponsibility Learning, but arguing LLC that, under the circum-© Jonesto defend & Bartlett him- or herself,Learning, others, LLCor property, or to stances, he or she did what was right. prevent a crime. NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

Headline Crime © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Carrying GunsNOT on FORCampus SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Faculty at the University of Texas at Austin have been court of appeals ruled that the University of Colorado outspoken about a new state law allowing students to has no authority to bar students or visitors from lawfully carry guns on campus. Texas is just one of nine states carrying guns on campus. At the opposite end of the gun that allow students to carry guns on campus. In 2004, debate, Princeton University has a policy prohibiting campus ©Utah Jones was the & fi Bartlett rst state to Learning,pass legislation LLCallowing permit police from carrying© Jones guns on& campus.Bartlett The Learning,university argues LLC NOTholders FOR to carry SALE guns on OR campus. DISTRIBUTION Since then, seven other that the townshipNOT andFOR borough SALE police OR provide DISTRIBUTION adequate states have passed affi rmative policies on carrying guns armed protection for the campus. Twenty-one states have in public universities: Arkansas, Colorado, Idaho, Kansas, policies or have enacted a statewide law banning guns Mississippi, Oregon, and Wisconsin. In Colorado, the state at public colleges and universities.

© Jones & BartlettSource: Anderson, Learning, N. (2016, LLCJanuary 27). If you want to carry a gun ©on campus,Jones these & states Bartlett say yes. The Learning, Washington Post LLC. Retrieved from https:// NOT FOR SALEwww.washingtonpost.com/news/grade-point/wp/2016/01/27/if-you-want-to-carry-a-gun-on-campus-these-states-say-yes/. OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

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54 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

Nancy Seaman, a 52-year-old elementary school teacher, may have suffered© Jonesfrom battered & Bartlett spouse syndromeLearning, LLC © Jones & Bartlett Learning, LLC after enduring years of alleged physical abuse by her husband, Robert.NOT At her FORtrial, Nancy SALE admitted OR DISTRIBUTIONto killing NOT FOR SALE OR DISTRIBUTION her husband with a hatchet, but claimed it was an act of self-defense initiated during one of his attacks soon after she asked him for a divorce. She testifi ed that when she told Robert she wanted a divorce, he became furious, cut ©her Jones with a knife,& Bartlett chased her Learning, into the garage, LLC forced her © Jones & Bartlett Learning, LLC NOTto the FORground, SALE and repeatedly OR DISTRIBUTION kicked her. According to NOT FOR SALE OR DISTRIBUTION Nancy, she grabbed the closest object she could fi nd—a hatchet—and drove it into her husband’s skull. She then stabbed and beat him to ensure he was dead. Prosecutors told another story. They claimed the act © Jones & Bartlettwas premeditated Learning, and thatLLC Nancy purchased the ax and© JonesThe majority & Bartlett of domestic Learning, violence victims LLC are women, and took great care to conceal the crime scene. Surveillance this abuse may have varied and signifi cant effects. NOT FOR SALEvideo OR from DISTRIBUTION a hardware store showed Nancy stealing aNOT FOR SALE OR DISTRIBUTION © SpeedKingz/Shutterstock. hatchet identical to the one used in the murder. Two days later, she returned it using the receipt from the According to criminologist Cynthia Gillespie, laws purchase of the hatchet used in the murder, perhaps in regulating deadly force have been created by men based an attempt to erase the purchase from her credit card on a code of “manly” behavior that expects a person to record. Prosecutors© said Jones that Nancy & Bartlett slammed the Learning, hatchet LLCbe fearless and confront an attacker© Jones directly. & Such Bartlett laws Learning, LLC into Robert’s skullNOT more thanFOR a dozen SALE times, OR dragged DISTRIBUTION his do not consider the woman’s assessmentNOT FOR that sheSALE cannot OR DISTRIBUTION body into the garage, and then stabbed him 21 times, escape further injury as long as the abuser is alive. severing his jugular vein and voice box. The next morning, Victims of battered spouse syndrome are often unable she stopped to purchase a tarp, bottles of bleach, and to leave their abusers, even when circumstances appear latex gloves to clean up the mess. to permit their escape. Over time, a battered woman Other testimony also appeared to contradict Nancy’s may lose all hope of controlling her partner’s violence. ©account. Jones When & Bartlett police fi Learning, rst arrived at LLC the couple’s Many such© women Jones succumb & Bartlett to learned Learning, helplessness: LLC NOThome, FOR Nancy SALE claimed ORRobert’s DISTRIBUTION death was an accident. They becomeNOT emotionally FOR SALE dependent OR on DISTRIBUTION their abusive A coworker said he had overheard Nancy talking with partners and learn to be passive as a result of beatings another teacher at school about poisoning her husband. when they tried to assert themselves. In addition, some After fi ve hours of deliberation, the jury found Nancy women do not leave because no safe refuge exists where guilty of fi rst-degree murder, rejecting her claim of an enraged partner cannot fi nd them or their children. © Jones & Bartlettself-defense, Learning, and she LLCwas sentenced to life in prison.© JonesAbusive & husbandsBartlett often Learning, threaten to LLC harm or take cus- However, in 2010, a judge overturned her conviction tody of the children if the woman leaves. Even with the NOT FOR SALEdue ORto the DISTRIBUTION defendant not being able to fully develop aNOT increaseFOR SALE in the number OR DISTRIBUTION of shelters for abused women, battered-spouse-syndrome defense. shelters must turn away more women than they serve.

Source: ABC News. (2004, December 7). Accused of Murdering Husband, Teacher Cites Years of Abuse: Husband killer gets life. Retrieved from http:// abcnews.go.com/GMA/story?id=305807; Associated Press. (2010). Judge overturns 2005 conviction of Farmington Hills teacher who killed husband with hatchet. Retrieved© from Jones http://www.mlive.com/news/detroit/index.ssf/2010/11/judge_overturns_2005_convictio.html; & Bartlett Learning, LLC © Jones Gillespie, & BartlettC. (1989). Learning, LLC Justiﬁ able homicide: BatteredNOT women, FOR self-defense, SALE andOR the DISTRIBUTION law. Columbus, OH: Ohio State University Press. NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC In the past, deadly force generally has not been after he was convicted of fi rst- and second-degree acceptedNOT FOR as a SALEresponse OR intended DISTRIBUTION solely to protect murder ofNOT two teenagers FOR SALE who hadOR broken DISTRIBUTION into his property, because owners could have taken steps to home on Thanksgiving Day in 2012.15 While social protect their property and prevent the criminal act norms in American society tend to value human life from occurring. For example, it is illegal to set a deadly more than property, the use of deadly force to protect © Jones & Bartletttrap or device Learning, for intruders LLC in a home or business,© Jonesone’s &property Bartlett varies Learning, from a legal LLC perspective from even if the home or business has previously been jurisdiction to jurisdiction. NOT FOR SALEburglarized. OR DISTRIBUTION This was true in the case of Byron Smith,NOT FORA number SALE of OR states DISTRIBUTION have recently expanded the who was sentenced to life in prison without parole right to use deadly force in self-defense and defense

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PART 1 Crime and Criminal Justice 55

of property. These new laws—referred to as “stand © Jones & Bartlettyour ground” Learning, laws by LLCtheir supporters and “shoot© Jones & Bartlett Learning, LLC NOT FOR SALEfirst” ORlaws DISTRIBUTIONby their opponents—permit people to useNOT FOR SALE OR DISTRIBUTION deadly force against intruders who have illegally and forcefully entered their homes. For example, Kansas expanded its law so that a person does not have a duty to retreat if they are© in Jones a place they& Bartlett “have a right Learning, to be” LLC © Jones & Bartlett Learning, LLC and may stand their ground. Florida law states that citizens no longerNOT need toFOR prove SALE that they OR feared DISTRIBUTION for NOT FOR SALE OR DISTRIBUTION their safety before they responded with deadly force, only that the intruder illegally entered their home or vehicle. The law states that someone who enters a dwelling© Jones illegally & Bartlett can be presumedLearning, to beLLC intending © Jones & Bartlett Learning, LLC to commit a violent crime. Therefore, a person does notNOT need FOR to prove SALE he orOR she DISTRIBUTION felt immediate danger NOT FOR SALE OR DISTRIBUTION if deadly force is used against a home intruder in Florida. Moreover, the law states that a person “has no duty to retreat and has the right to stand his or her © Jones & Bartlettground and Learning, meet force LLC with force, including deadly© Jones & Bartlett Learning, LLC force.” The law also prohibits the arrest, detention, NOT FOR SALEor prosecution OR DISTRIBUTION of such a person and disallows theNOT FOR SALE OR DISTRIBUTION victim of such a shooting from bringing a civil suit against the shooter.16 This law came under scrutiny after the death of Trayvon Martin in 2012 by George Zimmerman. In 2016,© Jones Florida & expanded Bartlett the Learning, “stand LLC © Jones & Bartlett Learning, LLC your ground” law by placing the burden of proof on Kobe Bryant and his accuser had starkly different assessments prosecutors to proveNOT injury FOR to anotherSALE wasn’tOR DISTRIBUTION an act of their sexual encounter, which NOTresulted FOR in a civil SALE settlement. OR DISTRIBUTION of self-defense. The burden was previously on the © s_bukley/Shutterstock. defendant.17 consented to a neighbor taking her car, then the neighbor has not committed motor vehicle theft. Necessity© Jones & Bartlett Learning, LLC During the© summerJones of& 2003, Bartlett professional Learning, basketball LLC Necessity,NOT FOR as aSALE defense, OR represents DISTRIBUTION the dilemma of star Kobe BryantNOT FORwas charged SALE with OR raping DISTRIBUTION a 19-year- choosing between two evils. A person may violate the old female hotel employee while he was staying at a law out of necessity when he or she believes that the Colorado resort. Bryant admitted he had sex with the act, which is a violation of law, is required to avoid woman but claimed that she had consented. Shortly a greater evil. According to the Model Penal Code, after the charges were filed, Bryant stated, “Nothing © Jones & Bartlettconduct thatLearning, a person LLC © Jonesthat happened& Bartlett June Learning, 30 was against LLC the will of the woman who now falsely accuses me.” The rape charge NOT FOR SALEbelieves OR DISTRIBUTIONto be necessary to avoid a harm or evil toNOT FOR SALE OR DISTRIBUTION was eventually dismissed. Afterward, Bryant stated, himself or to another is justifiable, provided that the harm or evil sought to be avoided by such conduct Although I truly believe this encounter between us is greater than that sought to be prevented by the was consensual, I recognize that she did not and law defining the offense charged.18 does not view this incident the same way I did. © Jones & Bartlett Learning, LLCAfter months of reviewing© [evidence Jones submitted& Bartlett at] Learning, LLC For example, breaking into a mountain cabin to NOT FOR SALE OR DISTRIBUTIONdiscovery, listening to herNOT attorney, FOR and SALE even herOR DISTRIBUTION secure shelter or food during a snowstorm or into a testimony in person, I now understand how she home to use the telephone to report an emergency feels that she did not consent to this encounter. may establish the defense of necessity and thereby negate the crime of breaking and entering. In either The woman then filed a civil lawsuit against Bryant; case,© Jones the individual & Bartlett must Learning, intend to avoid LLC a greater the suit was© settled Jones out & of Bartlett court, and Learning, terms of the setLLC- harmNOT than FOR the SALE crime charged OR DISTRIBUTION to justify the act. tlement wereNOT not FOR released. SALE19 Such OR lawsuits DISTRIBUTION are based on civil law, which is a body of private law that settles Consent disputes between two or more parties. The defense of consent arises when a defendant claims Key Terms © Jones & Bartlettthe victim Learning, consented LLCto the act. Certain common© Jones & Bartlett Learning, LLC law offenses, such as theft and rape, require a clear NOT FOR SALE OR DISTRIBUTION NOT FORcivil lawSALE OR DISTRIBUTION demonstration that the victim did not give consent. A body of private law that settles disputes between For example, if the owner of an automobile voluntarily two or more parties in a dispute.

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56 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

Excuses Minister, Sir Robert Peel II, was persecuting him. In © Jones & Bartlett Learning, LLC © Jonesan attempt & Bartlett to assassinate Learning, Peel, M’Naghten LLC mistakenly Excuses are based on a defendant admitting that what NOT FOR SALE OR DISTRIBUTION NOT shotFOR and SALE killed ORPeel’s DISTRIBUTION assistant. At the trial, the court he or she did was wrong but arguing that, under the instructed the jury that circumstances, he or she was not responsible for the criminal act. [To] establish a defense on the ground of insanity, it must be clearly proved that, at the time of the com- Insanity © Jones & Bartlett Learning, LLCmitting of the act, the party© accusedJones was & Bartlettlabouring Learning, LLC Probably no otherNOT legal defenseFOR SALE has resulted OR inDISTRIBUTION more under such a defect of reasonNOT from FOR disease SALE of theOR DISTRIBUTION public scrutiny and debate than the insanity defense. mind as not to know the nature and quality of the In reality, insanity pleas are very rare. The insanity act he was doing; or, if he did know it, that he did 22 defense is raised in less than 1% of all criminal cases, not know he was doing what was wrong. and only in 25% of those cases is the person found M’Naghten was tried and found not guilty by reason not© Jonesguilty because & Bartlett of insanity. Learning,20 Even so, manyLLC people © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION of insanity.NOT FOR SALE OR DISTRIBUTION are concerned when a clearly dangerous person avoids Under the M’Naghten rule, the defendant is pre- incarceration and punishment after being found sumed to be sane and must prove that he or she legally insane at the time the crime was committed. suffered from a “disease of the mind” and, therefore, It is important to recognize that people who are lacked a sufficient degree of reason to distinguish released from criminal charges owing to insanity do © Jones & Bartlett Learning, LLC © Jonesbetween & Bartlett right and Learning,wrong. This LLCtest of insanity has not go free, but instead are sent to mental hospitals been criticized on several grounds: NOT FOR SALEuntil ORthey DISTRIBUTIONare considered sane. Only then are theyNOT FOR SALE OR DISTRIBUTION released back into the community. • “Disease of the mind” is not clearly defined. The insanity defense is based on a legal concept, • Too much stress is placed on the requirement rather than a medical or psychiatric definition of of knowing. insanity. Legally, “insanity” refers to a person’s state • It is unclear how a person must know that an of mind at the time© Joneshe or she & committed Bartlett theLearning, crime LLC act is wrong. © Jones & Bartlett Learning, LLC charged, though actualNOT legalFOR definitions SALE OR of DISTRIBUTIONinsanity • Some people may be NOTinsane FOR but still SALE able ORto DISTRIBUTION have been—and continue to be—rather vague. In the distinguish right from wrong. past, concepts such as madness, irresistible impulse, Subsequent rules have sought to overcome these states of unsound mind or weak-mindedness, and weaknesses in the M’Naghten rule. mental illness, disease, defect, or disorder have all been© Jones used to & inform Bartlett the law. Learning,21 LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION IrresistibleNOT Impulse FOR TestSALE OR DISTRIBUTION The M’Naghten Rule In 1897, the U.S. federal courts and a number of the states added the irresistible impulse test to supplement The M’Naghten rule, which is also known as the the M’Naghten rule. According to this test, defendants “right from wrong” test, is based on an English case may be found not guilty by reason of insanity if they that was decided in 1843. Daniel M’Naghten, a can prove that a mental disease caused loss of self-con- © Jones & BartlettScottish woodcutter,Learning, believed LLC that the English Prime© Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT trolFOR over SALE their conduct. OR DISTRIBUTION This test arose from an 1886 Alabama Supreme Court decision in Parsons v. State, Key Terms which held that it may be possible for a person to know that the action was wrong but nevertheless to be so excuses overcome by emotion that he or she temporarily lost Claims based on a defendant admitting that what © Jones & Bartlett Learning, LLCself-control or the ability to© reason Jones to a & degree Bartlett suffi- Learning, LLC he or she did was wrong but arguing that, under the 23 circumstances, he NOTor she wasFOR not SALE responsible OR for DISTRIBUTION the cient to prevent the act. InNOT revising FOR the M’NaghtenSALE OR DISTRIBUTION criminal act. rule, the irresistible impulse test allowed defendants to raise the insanity defense and plead that, although M’Naghten rule they knew that what they were doing was wrong, they Insanity defense claim that because of a defect of were unable to control their behavior. reason from a disease of the mind, the defendant ©was Jones unable &to distinguishBartlett rightLearning, from wrong. LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION irresistible impulse test Durham Rule An insanity test that determines whether a defendant, The Durham rule, which states that “an accused as a result of a mental disease, temporarily lost self- [person] is not criminally responsible if his unlaw- control or the ability to reason sufficiently to prevent ful act was the product of mental disease or mental the crime. © Jones & Bartlett Learning, LLC © Jonesdefect,” & Bartlettwas formulated Learning, in Durham LLC v. United States in 1954.24 According to the Durham rule, a mental NOT FOR SALEDurham OR DISTRIBUTIONrule NOT FOR SALE OR DISTRIBUTION An insanity test that determines whether a defendant’s condition may be either a disease (a condition act was a product of a mental disease or defect. capable of improving or deteriorating) or a defect (a

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On July 20, 2012, then–graduate student James Holmes walked into a movie© Jones theater in& Aurora, Bartlett Colorado, Learning, and LLC © Jones & Bartlett Learning, LLC opened fi re. It was opening night for the third install- ment of the DarkNOT Knight FOR franchise. SALE Holmes OR killedDISTRIBUTION 12 NOT FOR SALE OR DISTRIBUTION people and injured 70 others. Multiple psychiatric evaluations resulted in Holmes being diagnosed with schizophrenia. Colorado, which uses a combination of the M’Naghten rule and the irresistible impulse test, ©placed Jones the &burden Bartlett on the Learning, jury to determine LLC whether © Jones & Bartlett Learning, LLC NOTHolmes FOR knew SALE what he OR was DISTRIBUTIONdoing and if what he was NOT FOR SALE OR DISTRIBUTION doing was wrong on the night of July 20. After 46 days of testimony, the jury determined that Holmes was sane at the time he committed the crime. As District Attorney Brauchler stated in court “he leaves nothing to chance,” in fact “he’s planned for all the contingencies © Jones & Bartlettand all ofLearning, that planning LLC goes to [his] intent.” Holmes© Jones & Bartlett Learning, LLC NOT FOR SALEwas OR convicted DISTRIBUTION of 24 counts of murder, 140 counts ofNOT JamesFOR Holmes SALE sits OR in court DISTRIBUTION during his trial. attempted murder, and a single explosives charge for © RJ Sangosti/Pool Denver Post/AP Photo. an explosive device he set in his apartment complex before going to the theater. In August 2015, Holmes attacked Holmes and told the media “I’m so sorry I was sentenced to multiple life prison terms, plus 3318 couldn’t wipe him out and sent [sic] him packing to years for the attempted© Jones murder & charges. Bartlett He isLearning, ineligible LLCSatan’s lake of fi re.” Holmes ©has Jonessince been & transferred Bartlett Learning, LLC for parole. HolmesNOT was being FOR held SALE in the ColoradoOR DISTRIBUTION State to a prison outside of ColoradoNOT to serveFOR out SALE the rest OR DISTRIBUTION Penitentiary; however, in early 2016 a fellow inmate of his life sentence.

Source: DenverChannel.com. (2015). James Holmes guilty in Aurora Colorado theater shooting; Jury did not believe insanity defense. Retrieved from http://www.thedenverchannel.com/news/movie-theater-shooting/james-holmes-guilty-in-aurora-colorado-theater-shooting-jury-did-not-believe- insanity-defense; O’Neill, A. (2015). Theater shooter Holmes gets 12 life sentences, plus 3,318 years. Retrieved from http://www.cnn.com/2015/08/26 ©/us/james-holmes-aurora-massacre-sentencing/; Jones & Bartlett Learning, Walker, LLC L. (2016). Aurora shooter James Holmes© Jones secretly moved & Bartlettafter prison assault. Learning, Retrieved from LLC NOThttp://www.newsweek.com/aurora-shooter-james-holmes-secretly-moved-after-prison-assault-433501. FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

condition not considered capable of improving or The terms mental disease or defect do not include deteriorating). Further, the Durham rule states that a an abnormality manifested only by repeated crim- © Jones & Bartlettdefect could Learning, be congenital, LLC the result of injury, or the© Jonesinal & or Bartlett antisocial Learning, conduct.25 LLC residual effect of either physical or mental disease. NOT FOR SALE OR DISTRIBUTION NOT FORThe substantialSALE OR capacity DISTRIBUTION test is broader than the Under the Durham test, the prosecutor must prove M’Naghten rule because it substitutes the notion beyond a reasonable doubt that the defendant was of “appreciate” for “know,” thereby eliminating the not acting as a result of mental illness, but the jury M’Naghten requirement that a person be able to determines whether the act was a product of such fully distinguish right from wrong. In other words, disease or defect. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC a defendant may know the difference between right NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION The Substantial Capacity Test and wrong yet not be able to appreciate the significance of that difference. The substantial capacity The Durham rule, like its predecessors, was soon test absolves from criminal responsibility a person criticized. Specifi cally, critics argued that it provided who knows what he or she is doing, but is driven to no useful defi nition of “mental disease or defect.” In act by delusions, fears, or compulsions.26 Like the 1962,© Jones the American & Bartlett Law InstituteLearning, offered LLC a new test © Jones & Bartlett Learning, LLC forNOT insanity FOR in SALE its Model OR Penal DISTRIBUTION Code. Known as the NOT FOR SALE OR DISTRIBUTION substantial capacity test or Model Penal Code test, it includes the following provisions: Key Terms A person is not responsible for criminal conduct if, substantial capacity test © Jones & Bartlettdue to mentalLearning, disease LLC or defect, he or she lacks the© JonesAn insanity& Bartlett test that Learning, determines whether LLC the defendant substantial capacity to appreciate the criminality lacked suffi cient capacity to appreciate the wrongfulness NOT FOR SALE(wrongfulness) OR DISTRIBUTION of his or her conduct or to conformNOT FORof his orSALE her conduct. OR DISTRIBUTION to the requirements of law.

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58 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

Durham rule, the substantial capacity test places Guilty, but Mentally Ill © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC the burden of proof beyond a reasonable doubt on At least 10 states have adopted statutes permitting a NOT FOR SALEthe prosecutor. OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION defense of guilty, but mentally ill (GBMI), or “guilty, In 1972, in United States v. Brawner, the federal courts but insane” (GBI—a variation on GBMI).29 This verdict, rejected the Durham rule and adopted a modified 27 which is a supplement to the traditional defense of version of the substantial capacity test. By 1982, it insanity, allows a jury to find the accused guilty and was being used in ©24 Jonesstates, the & District Bartlett of Columbia, Learning, LLCimpose a punishment of subsequent© Jones incarceration. & Bartlett Learning, LLC and the federal courts. NOT FOR SALE OR DISTRIBUTIONIt also requires prison authoritiesNOT toFOR provide SALE psychi OR- DISTRIBUTION atric treatment to the convicted offender during the Insanity Defense Reform Act of 1984 specified period of confinement. Until 1981, the substantial capacity test dominated See Table 3.2 for a list of the insanity rules used federal and state practice. Matters changed after by the states and Washington DC. March© Jones 30, 1981, & Bartlett when John Learning, Hinckley, LLCJr., shot and Supporters© Jones of GBMI & and Bartlett GBI statutes Learning, argue that LLC woundedNOT FOR President SALE Reagan. OR At DISTRIBUTION his trial, experts testified these laws willNOT reduce FOR the SALE number OR of determinationsDISTRIBUTION that Hinckley was psychotic and had been suffering of not guilty by reason of insanity and, consequently, from delusions. A little more than a year after the hold more people criminally responsible for their shooting, the jury returned a verdict of “not guilty actions. In addition, they claim that such statutes by reason of insanity” for Hinckley. will increase protection for the public by ensuring © Jones & BartlettAs a result Learning, of widespread LLC criticism over Hinckley’s© Jonesthat offenders & Bartlett are subjectLearning, to incarceration LLC and treat- 30 NOT FOR SALEacquittal, OR CongressDISTRIBUTION restricted the use of the insanityNOT ment.FOR SALE See “Headline OR DISTRIBUTION Crime: Guilty, but Mentally defense in federal cases, and a number of states quickly Ill” for recent examples of cases involving GBMI followed suit. The Insanity Defense Reform Act of convictions. 1984, passed as part of the larger Comprehensive Crime Control Act of 1984, states: Intoxication © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC It is an affirmative defense to a prosecution under The defense of intoxication is based on the claim any Federal statuteNOT that, FOR at theSALE time ORof the DISTRIBUTION com- that the defendant had diminishedNOT FOR control SALE over OR DISTRIBUTION mission of the acts constituting the offense, the him- or herself owing to the influence of alcohol, defendant, as a result of a severe mental disease narcotics, or other drugs, and therefore lacked or defect, was unable to appreciate the nature criminal intent. According to the Model Penal ©and Jones quality & ofBartlett the wrongfulness Learning, of LLChis [or her] Code, the© defense Jones of & intoxication Bartlett Learning, should not LLCbe acts . . . The defendant has the burden of proving used unless it negates an element in the crime, such NOTthe defense FOR SALE of insanity OR byDISTRIBUTION clear and convincing as criminalNOT intent. FOR SALE OR DISTRIBUTION evidence.28 The courts recognize a difference between involuntary intoxication and voluntary intoxication. Involuntary A significant part of the Insanity Defense Reform intoxication that results from mistake, deceit of others, Act is the shifting of the burden of proof from the © Jones & Bartlett Learning, LLC © Jonesor duress & Bartlett (for example, Learning, if a drug was LLC unknowingly put prosecution to the defense and the limitations placed in the person’s drink, or if liquor was forcibly poured NOT FOR SALEon the OR role DISTRIBUTION of experts. The defense now has theNOT downFOR theSALE person’s OR throat) DISTRIBUTION will excuse the defendant burden to prove, through the presentation of clear from responsibility for criminal action that resulted and convincing evidence, that the defendant lacked from the intoxication. capacity. Furthermore, expert witnesses who testify Voluntary intoxication is generally not a defense, about the mental state or condition of a defendant © Jones & Bartlett Learning, LLCbut it may be presented in ©an Joneseffort to &mitigate Bartlett the Learning, LLC are prohibited from giving an opinion or drawing seriousness of the crime. A person charged with an inference as toNOT whether FOR the SALE mental OR state DISTRIBUTION of the committing premeditated murderNOT FORwhile voluntarilySALE OR DISTRIBUTION defendant constituted an element of the crime. intoxicated, for example, may be able to have the Rather, such conclusions are to be drawn solely by charge reduced to the less serious charge of homi- the judge or the jury. cide. In 2005, in Lawrence, Kansas, Jason Dillon, © Jones & Bartlett Learning, LLC who was ©charged Jones with & Bartlettmurdering Learning, his girlfriend’s LLC Key Term 3-year-old daughter, cited “voluntary intoxication” NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION guilty, but mentally ill (GBMI) as a factor in his crime. Dillon claimed that he had A substitute for traditional insanity defenses, consumed 16 beers the night before he babysat the which allows the jury to find the defendant guilty young girl and was incapable of acting intentionally. and requires that the prisoner receive psychiatric Dillon did not dispute that he struck the girl on the © Jones & Bartletttreatment Learning, during his or LLCher confinement. Also called © Joneshead &more Bartlett than a Learning,dozen times LLCafter she refused to guilty but insane (GBI). help pick up laundry and told him she didn’t want NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

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Table 3.2 Insanity Rules for the 50 States and District of Columbia

Responsibility Allows GBMI © Jones & BartlettState Learning, LLCInsanity Defense Rule © Jones & Bartlettfor Burden Learning, of Proof LLCand GBI Verdicts NOT FOR SALEAlabama OR DISTRIBUTIONM’Naghten rule NOT FOR SALEDefendant OR DISTRIBUTIONNo Alaska M’Naghten rule Defendant Yes Arizona M’Naghten rule Defendant Yes Arkansas Model Penal Code Defendant No California © JonesM’Naghten & Bartlett rule Learning, LLC Defendant © JonesNo & Bartlett Learning, LLC Colorado M’Naghten rule; irresistible impulse test State No NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Connecticut Model Penal Code Defendant No Delaware Model Penal Code Defendant No District of Columbia Model Penal Code Defendant No Florida M’Naghten rule State No ©Georgia Jones & Bartlett M’NaghtenLearning, rule LLC Defendant© Jones & BartlettYes Learning, LLC NOTHawaii FOR SALE ORModel DISTRIBUTION Penal Code StateNOT FOR SALE ORNo DISTRIBUTION Idaho Insanity defense abolished Yes Illinois Model Penal Code Defendant No Indiana Model Penal Code State Yes Iowa M’Naghten rule Defendant No © Jones & BartlettKansas Learning, LLCInsanity defense abolished © Jones & Bartlett Learning, LLCYes NOT FOR SALEKentucky OR DISTRIBUTIONModel Penal Code NOT FOR SALEDefendant OR DISTRIBUTIONNo Louisiana M’Naghten rule Defendant No Maine Model Penal Code Defendant No Maryland Model Penal Code Defendant No Massachusetts © JonesModel & PenalBartlett Code Learning, LLC State © JonesNo & Bartlett Learning, LLC Michigan NOT FORModel SALE Penal Code OR DISTRIBUTION Defendant NOT NoFOR SALE OR DISTRIBUTION Minnesota M’Naghten rule Defendant No Mississippi M’Naghten rule State No Missouri M’Naghten rule Defendant No Montana Insanity defense abolished Yes ©Nebraska Jones & Bartlett M’NaghtenLearning, rule LLC Defendant© Jones & BartlettNo Learning, LLC NOTNevada FOR SALE ORM’Naghten DISTRIBUTION rule NOT FOR SALE ORYes DISTRIBUTION New Hampshire Durham rule Defendant No New Jersey M’Naghten rule Defendant No New Mexico M’Naghten rule; irresistible impulse test State No New York Model Penal Code Defendant No © Jones & BartlettNorth Carolina Learning, LLCM’Naghten rule © Jones & BartlettDefendant Learning, LLCNo NOT FOR SALENorth OR Dakota DISTRIBUTIONModel Penal Code NOT FOR SALEState OR DISTRIBUTIONNo Ohio M’Naghten rule Defendant No Oklahoma M’Naghten rule State No Oregon Model Penal Code Defendant Yes Pennsylvania © JonesM’Naghten & Bartlett rule Learning, LLC State © JonesYes & Bartlett Learning, LLC Rhode Island NOT FORModel SALE Penal Code OR DISTRIBUTION Defendant NOT NoFOR SALE OR DISTRIBUTION South Carolina M’Naghten rule Defendant No South Dakota M’Naghten rule Defendant No Tennessee Model Penal Code State No Texas M’Naghten rule; irresistible impulse test Defendant No ©Utah Jones & Bartlett InsanityLearning, defense LLC abolished © Jones & BartlettYes Learning, LLC NOTVermont FOR SALE ORModel DISTRIBUTION Penal Code StateNOT FOR SALE ORNo DISTRIBUTION Virginia M’Naghten rule; irresistible impulse test Defendant No Washington M’Naghten rule Defendant No West Virginia Model Penal Code State No Wisconsin Model Penal Code Defendant No © Jones & BartlettWyoming Learning, LLCModel Penal Code © Jones & BartlettDefendant Learning, LLCNo NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Source: U.S. Department of Justice Statistics. (2006). The defense of insanity: Standards and procedures, state court organization, 2004. Washington, DC: U.S. Department of Justice Statistics; Table 35.

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60 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

Guilty, but mentally ill (GBMI) convictions are probably heard voices, and suffered from dementia from more common than© acquittals Jones based & Bartlett on successful Learning, insanity LLC closed head injuries. As a© result Jones of the & plea Bartlett agree- Learning, LLC defenses. The following recent cases illustrate the variety ment, Cobb was sentenced to 12 years in prison and of situations in whichNOT GBMI FOR convictions SALE are OR obtained. DISTRIBUTION 3 years of probation. NOT FOR SALE OR DISTRIBUTION • A judge found Cynthia Lord, age 45, GBMI in the • On August 10, 2010, Peterson Haak, age 30, was murder of her three sons, ages 16, 18, and 19 years found GBMI and faces up to 20 years in prison. old, whom she feared had become evil clones or Haak was charged with fi rst-degree home invasion, robots. Each boy died from a single gunshot wound aggravated assault, and resisting and obstructing © Jones & Bartlett Learning, LLC to the ©head. Jones According & Bartlett to the judge, Learning, Lord suffers LLC a police offi cer during an incident in which he from a severe, disabling mental illness. The three NOT attackedFOR SALE a couple OR in their DISTRIBUTION 80s after breaking into NOT FOR SALE OR DISTRIBUTION fi rst-degree murder convictions mean that Lord could their home. Assistant Prosecutor Patrick O’Keefe spend up to 99 years in a psychiatric institution. If stated that although Haak had consumed at at some point she is found mentally stable, she will least 16 alcoholic beverages during the day and be transferred to a correctional institution. evening prior to the assault, he should still be • On October 26, 2007, Jeanette Sliwinski, 25, was held accountable for his actions. Haak, a medical © Jones & Bartlett Learning, LLC © Jones found& Bartlett GBMI for Learning, three charges LLC of reckless homi- student at Michigan State University, was expelled NOT FOR SALE OR DISTRIBUTION NOT FORcide. SALE Sliwinski OR claimed DISTRIBUTION that she had been trying to shortly after the incident. commit suicide when she intentionally crashed her • Billy Paul Cobb was found GBMI on March 7, 2007. Mustang into a Honda Civic at 87 miles per hour. Cobb pleaded guilty to child molestation, aggra- Three Chicago musicians—Michael Dahquist, 39; vated child molestation, three counts of enticing John Glick, 35; and Douglas Meis, 29—who were a child for indecent purposes, and three counts of © Jones & Bartlett Learning, LLC stopped at a light when Sliwinski’s© Jones car crashed& Bartlett into Learning, LLC interference with custody. In late December 2005, them, were killed. Sliwinski’s attorney claimed that she Cobb was arrestedNOT FORfor taking SALE three ORgirls, agesDISTRIBUTION 11, NOT FOR SALE OR DISTRIBUTION had been suffering from depression and was driven 12, and 13 years old, across state lines where he into madness when her psychiatrists failed her. She performed an act of sodomy on one of the girls. faces a maximum of 10 years in prison where she A psychologist testifying on Cobb’s behalf stated will receive treatment while serving her sentence. that Cobb showed signs of paranoid schizophrenia, © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOTSource: FOREx-MSU studentSALE guilty OR but mentally DISTRIBUTION ill for beating elderly couple. Retrieved from PeopleNOT of the State FOR of Michigan SALE v Peterson OR Todd DISTRIBUTION Haak, 300834 M.I. (2011), http://www.michbar.org/fi le/opinions/appeals/2011/121311/50393.pdf; Adams, P. (2007, March 7). Accused child molester takes plea offer of guilty, but mentally ill. Retrieved from http://www.independentmail.com/news/local/accused-child-molester-takes-plea-offer-of-guilty-but-mentally- ill-ep-417069213-341908211.html; Associated Press. (2007, May 7). Mother found guilty, but mentally ill in shooting deaths of 3 sons. Retrieved from http://www.foxnews.com/story/0,2933,272372,00.html; Horan, D., Kuczka, S., & Wang, A. (2008, September 24). Suicidal driver guilty, but ill. Chicago Tribune. Retrieved from http://articles.chicagotribune.com/2008-09-24/news/0809240224_1_sentence-reduction-reckless-homicide-years-and-four-months. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

him to be her daddy anymore. As a result of a plea permissible for law enforcement agents to solicit bargain, Dillon was convicted of second-degree information from informants, use undercover offi - murder rather than fi rst-degree murder as initially cers, and even place electronic monitoring devices charged; he was ©sentenced Jones to& Bartletta reduced Learning, term of LLCon informants or offi cers ©to Jones record conversations& Bartlett Learning, LLC 16½ years in prison.NOT31 FOR SALE OR DISTRIBUTIONregarding criminal behavior.NOT It FORis not, SALE however, OR DISTRIBUTION considered legitimate for police to encourage or Entrapment coerce individuals to commit crimes when they had The defense of entrapment is an excuse for criminal no previous predisposition to commit such acts. actions based on the claim that the defendant was Government agents may not “originate a criminal encouraged© Jones or& enticedBartlett by agentsLearning, of the state LLC to engage design, implant© Jones in an & innocent Bartlett person’s Learning, mind theLLC inNOT an act FOR that SALEhe or she OR would DISTRIBUTION not have committed dispositionNOT to commit FOR a SALEcriminal OR act, andDISTRIBUTION then induce otherwise. The courts have generally held that it is commission of the crime so that the Government may prosecute.”32 For an entrapment defense to be valid, two related Key Term elements must be present: © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 1. Government inducement of the crime NOT FOR SALEentrapment OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION The claim that a defendant was encouraged or enticed 2. The defendant’s lack of predisposition to engage by agents of the state to engage in a criminal act. in the criminal conduct33

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PART 1 Crime and Criminal Justice 61

Predisposition is generally considered to be the more Mistake © Jones & Bartlettimportant Learning, of these two LLC elements. Thus, entrapment© Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT EveryoneFOR SALE has probably OR DISTRIBUTION heard the expression, “Igno- might not be occurring in a case in which the gov- rance of the law is no excuse.” But what does it mean? ernment induces a person who is predisposed to Although we may be familiar with many laws, must commit such an act. we be aware of all the laws? Must we know exactly Over the years, many state and federal law enforce- what they prohibit and under what circumstances? ment agencies have© Jones conducted & Bartlett “sting” operations Learning, LLCIgnorance of what the law© Jonesrequires &or Bartlettprohibits Learning, LLC that are designed to trap people who are engaged NOT FOR SALE OR DISTRIBUTIONgenerally does not excuse a NOTperson FOR from committingSALE OR DISTRIBUTION in crime or predisposed to commit crimes. Such a crime, but, under some circumstances, ignorance operations often involve law enforcement agents has been accepted as a defense. A federal court posing as prostitutes, drug buyers, buyers of stolen of appeals held in 1989 that “Under the proper auto parts, and people attempting to bribe govern- circumstances . . . a good faith misunderstanding ment© Jones officials. & Bartlett Do such Learning,activities create LLC an illegal of the law ©may Jones negate & willfulness.” Bartlett Learning,37 Mistake, as LLC a inducement to commit crime? In Sherman v. United NOT FOR SALE OR DISTRIBUTION criminal defense,NOT FOR takes SALEtwo forms: OR mistakeDISTRIBUTION of law States (1958), the U.S. Supreme Court held that “to and mistake of fact. determine whether entrapment has been established, Mistake of law occurs when the defendant does not a line must be drawn between the unwary innocent 34 know a law exists; only in rare cases is it a legitimate and the trap for the unwary criminal.” Entrapment defense. Such a case might exist when a new law is © Jones & Bartlettoccurs when Learning, government LLC activity in the criminal© Jonespassed & but Bartlett not published Learning, in time LLC to give the public enterprise crosses this line. NOT FOR SALE OR DISTRIBUTION NOT adequateFOR SALE notice OR of it.DISTRIBUTION Mistake of fact occurs when a The line suggested by the Supreme Court, however, person unknowingly violates the law because he or she is often ambiguous. The use of deceit by the police believes some fact to be true when it is not. In other to create a circumstance in which a person then words, had the facts been as a defendant believed them commits a crime does not necessarily constitute to be, the defendant’s action would not have been a entrapment. In United© Jones States & v. BartlettRussell (1973), Learning, the LLCcrime. For example, a woman© who Jones is charged & Bartlett with the Learning, LLC court held that: NOT FOR SALE OR DISTRIBUTIONcrime of bigamy may have believedNOT FOR that SALEher divorce OR DISTRIBUTION [T]here are circumstances when the use of deceit was final before she remarried when, in fact, it was not. is the only practicable law enforcement technique Mistake of fact is often raised as a defense by people available. It is only when the government’s deception who are charged with selling alcohol to a minor or with actually implants the criminal design in the mind committing statutory rape. In such cases, defendants ©of Jones the defendant & Bartlett that the Learning, defense of LLC entrapment may have been© Jones led to believe & Bartlett that the Learning, minor was older LLC NOTcomes FOR into SALEplay.35 OR DISTRIBUTION than he orNOT she claimed FOR SALEbecause ORthe claimDISTRIBUTION appeared consistent with the minor’s appearance. Duress The defense of duress presents the claim that the Exemptions defendant is a victim, rather than a criminal. For © Jones & Bartlett Learning, LLC © JonesIn some & Bartlettsituations, Learning,a defendant may LLC raise the defense example, if someone holds a gun to a person’s head, that he or she is legally exempt from criminal respon- NOT FOR SALEthreatening OR DISTRIBUTION to shoot unless he or she steals money, theNOT sibility.FOR SALE Unlike ORthe defensesDISTRIBUTION discussed earlier, legal resulting theft would be considered an action under exemptions are not based on the question of the defen- duress, and the thief should not be held criminally dant’s mental capacity or culpability for committing responsible for complying with the demand to steal. the crime. Rather, they are seen as concessions to the The Model Penal Code’s provision on duress states: 38 © Jones & Bartlett Learning, LLCdefendant for the greater good© ofJones the public & Bartlett welfare. Learning, LLC [It] is an affirmativeNOT defense FOR thatSALE the actorOR DISTRIBUTIONengaged Double Jeopardy NOT FOR SALE OR DISTRIBUTION in the conduct charged to constitute an offense because he was coerced to do so by the use of, or The Fifth Amendment to the Constitution states that a threat to use, unlawful force against his person “no person shall be subject for the same offense to be or the person of another, which a person of rea- twice put in jeopardy of life or limb.” This protection ©sonable Jones firmness & Bartlett in his Learning, situation would LLC have been against double© Jones jeopardy & Bartlett is not intended Learning, to provide LLC NOTunable FOR to resist. SALE36 OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION This defense is not applicable to people who inten- Key Terms tionally, recklessly, or negligently place themselves in duress situations in which it is probable that they will be The claim that the defendant is a victim, rather than a criminal. © Jones & Bartlettsubject to Learning, duress. For example, LLC a person who, in the© Jones & Bartlett Learning, LLC course of escaping from prison, commits a kidnap- NOT FOR SALE OR DISTRIBUTION NOT FORdouble SALE jeopardy OR DISTRIBUTION ping to avoid being caught cannot claim duress as a Trying a person for the same crime more than once; defense against the charge of kidnapping. it is prohibited by the Fifth Amendment.

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62 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

protection for guilty defendants, but rather is meant © Jones & Bartlettto prevent Learning, the state from LLC repeatedly prosecuting© Jones & Bartlett Learning, LLC NOT FOR SALEa person OR for DISTRIBUTION the same charge until a conviction isNOT FOR SALE OR DISTRIBUTION finally achieved.39 Jeopardy in a bench trial (a case tried before a judge rather than a jury) attaches (i.e., becomes activated) when the first witness is sworn in. In jury trials, some© jurisdictions Jones & considerBartlett a defendant Learning, LLC © Jones & Bartlett Learning, LLC to be in jeopardy once the jury is selected, though a few define it at theNOT point FORof indictment, SALE ORwhen DISTRIBUTIONcriminal NOT FOR SALE OR DISTRIBUTION charges are filed. Double jeopardy does not apply when a court proceeding is ruled a mistrial on the motion of the© Jonesdefense or& whenBartlett a jury Learning, is unable to LLC agree on a © Jones & Bartlett Learning, LLC verdict and the judge declares a mistrial. In both circumstances,NOT FOR the SALE prosecutor OR DISTRIBUTIONmay retry the case. Also, NOT FOR SALE OR DISTRIBUTION if upon conviction a defendant appeals to a higher court and has the conviction reversed, he or she may be retried on the original charge. © baobao ou/Moment/Getty. © Jones & BartlettStatute Learning,of Limitations LLC © Jones & Bartlett Learning, LLC NOT FOR SALEUnder OR common DISTRIBUTION law, there was no limit to the amountNOT FOR SALE OR DISTRIBUTION of time that could pass between a criminal act and the state’s prosecution of that crime. However, the states a 12-guage shotgun, fired through the window of and the federal government have enacted statutes of the home, hit and killed MaKayla. The boy, whose limitations establishing© Jones the maximum & Bartlett time Learning, allowed LLCname was not released, at ©the Jones time of &this Bartlett writing, Learning, LLC between the act and its prosecution by the state for NOT FOR SALE OR DISTRIBUTIONwas still being held in a juvenileNOT FORdetention SALE facility OR DISTRIBUTION most crimes. Thus, in some cases a defendant may while prosecutors decide if they will charge him as raise the defense that the statute of limitations for a minor or an adult.40 the crime has expired, which requires a dismissal of Although not considered either a justification the charges. or an excuse for a criminal act, a person’s age may ©Statutes Jones of & limitations Bartlett Learning,vary by jurisdiction LLC and establish a© defense Jones against & Bartlett criminal Learning, prosecution. LLC are generally longer for more serious offenses. For NOT FOR SALE OR DISTRIBUTION Under earlyNOT English FOR common SALE law, OR children DISTRIBUTION younger instance, murder has no statute of limitations, whereas than age 7 years were considered incapable of form- in many states burglary carries a five-year limitation. ing criminal intent and, therefore, could not be Misdemeanors have a two-year limitation period in convicted of crimes. Children between the ages of most jurisdictions. The statute of limitations may, 7 and 14 were considered to have limited criminal however, be interrupted if the defendant leaves the responsibility, and children older than age 14 were © Jones & Bartlettstate. For Learning, example, if aLLC person who is charged with© Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT presumedFOR SALE to have OR theDISTRIBUTION capacity to form criminal assault leaves the state for a period of two years, an intent and could be criminally prosecuted. With the additional two years would be added to the statutory creation of the juvenile court system in the United limit of five years. States at the end of the 19th century, most youths Age between ages 7 and 17 who were charged with © Jones & Bartlett Learning, LLCcrimes were processed through© Jones the more & Bartlett informal Learning, LLC In October 2015, an 11-year-old boy was charged proceedings of that court. with first-degreeNOT murder FOR of hisSALE 8-year-old OR DISTRIBUTION neigh- NOT FOR SALE OR DISTRIBUTION bor, MaKayla Dyer. The young boy was speaking to MaKayla and her sister from inside his family Due Process and the Rights member’s home. The two girls were playing with of the Accused puppies and talking to the boy from outside of the home.© Jones Reports & Bartlettindicate that Learning, the boy asked LLC to play Due process,© Jones which &is establishedBartlett Learning, in procedural LLC withNOT a puppyFOR andSALE upon OR MaKayla’s DISTRIBUTION refusal, he grabbed criminal law,NOT ensures FOR the SALE constitutional OR DISTRIBUTION guarantees of a fair application of the rules and procedures in criminal proceedings, beginning with the investigation of crimes and continuing through an individual’s Key Term arrest, prosecution, and punishment. There is not © Jones & Bartlett Learning, LLC © Jonesalways & agreement Bartlett overLearning, the concept LLC of due process, NOT FOR SALEstatute OR ofDISTRIBUTION limitations NOT itsFOR specific SALE applications, OR DISTRIBUTION or even who is eligible to The maximum time period that can pass between a claim the rights associated with the guarantees of criminal act and its prosecution. due process.

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PART 1 Crime and Criminal Justice 63

When a person is arrested, the immediate concern search their homes or other property, or confiscate © Jones & Bartletttypically Learning,focuses on whether LLC he or she committed© Jonesmaterials & Bartlett without Learning,legal justification. LLC Such justifi- NOT FOR SALEthe crime. OR HowDISTRIBUTION does a court of law make this deterNOT- cationFOR SALEmust be OR based DISTRIBUTION on sufficient probable cause mination? The police might threaten or coerce the to convince a judicial magistrate to issue a search suspect to extract a confession, and some people warrant specifically describing who or what is to might confess to crimes they did not commit to be searched and what is to be seized. Any evidence avoid further mistreatment.© Jones & Evidence Bartlett might Learning, also LLCseized as a result of searches© Jones in violation & Bartlett of the Learning, LLC be presented to establish the individual’s guilt even Fourth Amendment cannot be used in a subsequent though that evidenceNOT was FOR obtained SALE by OR devious DISTRIBUTION or criminal prosecution. NOT FOR SALE OR DISTRIBUTION unethical means (for example, searching a person’s private property without a search warrant). The The Fifth Amendment accused might be held in jail without bail and denied The Fifth Amendment contains four separate proce- access© Jones to an &attorney Bartlett while Learning, the government LLC builds dural protections:© Jones & Bartlett Learning, LLC a convincing case. Although convictions might be obtainedNOT FOR in such SALE instances, OR DISTRIBUTION such procedures would 1. A personNOT may FORnot face SALE criminal OR prosecution DISTRIBUTION unless offend the public’s sense of fairness related to the the government has first issued an indictment criminal process. stating the charges against the person. The principles of procedural fairness in criminal 2. No person may be tried twice for the same offense (double jeopardy). © Jones & Bartlettcases are Learning,designed to reduceLLC the likelihood of erro©- Jones & Bartlett Learning, LLC neous convictions. Criminal procedures that produce 3. The government may not compel a defendant NOT FOR SALEconvictions OR DISTRIBUTION of large numbers of innocent defendantsNOT FORto testifySALE against OR DISTRIBUTION him- or herself. (This provision would be patently unfair. The evolution of procedural includes protection against self-incrimination safeguards against unfair prosecution is based on a during questioning and the right to refuse to relative assessment of the interests at stake in a criminal testify during a criminal trial.) 4. No person may be deprived of due process, which trial. According to ©law Jones professor & Thomas Bartlett Grey, Learning, “While LLC © Jones & Bartlett Learning, LLC it is important as a matter of public policy (or even means that people should be treated fairly by the of abstract justice)NOT to punish FOR theSALE guilty, OR it is DISTRIBUTION a very government in criminalNOT prosecutions. FOR SALE OR DISTRIBUTION great and concrete injustice to punish the innocent.”41 In U.S. criminal law, procedural safeguards have been The Sixth Amendment established in the Fourth, Fifth, Sixth, Eighth, and The Sixth Amendment was designed to ensure a fair Fourteenth© Jones Amendments & Bartlett toLearning, the U.S. Constitution LLC to trial for defendants.© Jones Toward & Bartlett this end, Learning, it established LLC prevent that problem from occurring. NOT FOR SALE OR DISTRIBUTION six specificNOT rights: FOR SALE OR DISTRIBUTION 1. Speedy and public trial The Bill of Rights 2. Trial by an impartial jury (which has been inter- The first 10 amendments, known as the Bill of preted by the courts to mean a jury of one’s peers) Rights, were added to the Constitution on Decem- 3. Notification of the nature and cause of the charges © Jones & Bartlettber 15, 1791—only Learning, 3 LLCyears after the Constitution© Jones4. Opportunity & Bartlett to Learning, confront witnesses LLC called by the NOT FOR SALEhad been OR ratifiedDISTRIBUTION by the states. The framers of theNOT FORprosecution SALE OR DISTRIBUTION Constitution had intended it to provide citizens 5. Ability to present witnesses on the defendant’s with protections against a possible future dictator- own behalf ship by establishing a clear separation of powers 6. Assistance of an attorney in presenting the between the three branches of government (exec- defendant’s defense utive, legislative, ©and Jones judicial). & BartlettAll too soon, Learning, they LLC © Jones & Bartlett Learning, LLC realized that the individualNOT FOR rights SALE of citizens OR DISTRIBUTION were The Eighth AmendmentNOT FOR SALE OR DISTRIBUTION not adequately protected against possible intru- The Eighth Amendment simply states, “Excessive bail sions and violations by the newly formed federal shall not be required, nor excessive fines imposed, nor government. To correct this deficiency, they added cruel and unusual punishments inflicted.” Although a series of amendments to the Constitution. Four of this amendment does not guarantee a defendant these© Jones amendments & Bartlett enumerate Learning, the rights LLC of citizens the constitutional© Jones right & toBartlett be released Learning, on bail while LLC inNOT criminal FOR proceedings. SALE OR DISTRIBUTION awaiting trial,NOT it FOR does prohibitSALE OR the DISTRIBUTIONimposition of excessive bail. The Fourth Amendment The Fourth Amendment protects citizens against The Fourteenth Amendment © Jones & Bartlettunreasonable Learning, governmental LLC invasion of their privacy.© JonesFor nearly & Bartlett 80 years Learning, after the adoption LLC of the Bill of This amendment means that agents of the govern- Rights, the federal government and the various states NOT FOR SALEment ORmay DISTRIBUTIONnot arbitrarily or indiscriminately stopNOT interpretedFOR SALE the rights OR enumeratedDISTRIBUTION in these amendments and search people on the street or in their vehicles, to apply only to cases involving disputes between

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64 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

citizens and the federal government: The protections © Jones & Bartlettdid not extend Learning, to citizens LLC prosecuted by the states.© Jones & Bartlett Learning, LLC NOT FOR SALE(Actually, OR manyDISTRIBUTION state constitutions included theseNOT FOR SALE OR DISTRIBUTION same rights, but if they were violated, the federal courts were not empowered to intervene.) On July 28, 1868, the Fourteenth Amendment to the Constitution was ratified. It was eventually© Jones interpreted & Bartlett to mean Learning, that the LLC © Jones & Bartlett Learning, LLC Bill of Rights did, indeed, apply to all citizens and that the states mustNOT ensure FOR these SALE rights. OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Early court interpretations of the Fourteenth Amend- ment emphasized that its fundamental principle was “an impartial equality of rights”42 and that its “plain and© Jones manifest & intention Bartlett was Learning, to make all LLC the citizens © Jones & Bartlett Learning, LLC of the United States equal before the law.”43 These initialNOT decisionsFOR SALE did not OR interpret DISTRIBUTION the amendment NOT FOR SALE OR DISTRIBUTION to necessarily apply the Bill of Rights to the states. For example, in 1884 in Hurtado v. California,44 the Supreme Court held that the Fifth Amendment’s © Jones & Bartlettguarantee Learning, of a grand LLCjury indictment in criminal© Jones & Bartlett Learning, LLC proceedings applied only to federal trials, not those NOT FOR SALEconducted OR DISTRIBUTIONby the state. NOT FOR SALE OR DISTRIBUTION It was not until the early decades of the 20th century that the due process clause of the Fourteenth Amend- ment, which guaranteed that no state shall “deprive any person of life,© liberty, Jones or &property, Bartlett without Learning, due LLCDuring the 1960s, Chief Justice Earl© Warren Jones presided & Bartlett over a great Learning, LLC process of the law,” began to specifically incorporate expansion of due process rights for those accused of crimes. the Bill of Rights.NOT This moveFOR ultimatelySALE OR made DISTRIBUTION the Courtesy of the Library of Congress, Prints and Photographs Division,NOT [reproduction FOR number LC-USZ62-41653]. SALE OR DISTRIBUTION rights described in these amendments applicable to the states.

45 © Jones & Bartlett Learning, LLC of Rights to© place Jones limits & on Bartlett state action. Learning, At the time, LLC Incorporation of the Bill Black’s position was in the minority on the court. The ofNOT Rights FOR SALE OR DISTRIBUTION majority opinion,NOT FOR led by SALEJustice Felix OR Frankfurter, DISTRIBUTION held The process of incorporation of the Bill of Rights that, although the concept of due process incorporated occurred only gradually and reflected a major split fundamental values—one of which was fairness—it within the Supreme Court. In 1947 in Adamson v. was left to judges to objectively and dispassionately discover and apply these values to any petitioner’s © Jones & BartlettCalifornia Learning,, Justice Hugo LLC Black strongly called for© Jones & Bartlett Learning, LLC total incorporation, arguing that the authors of the claim of injustice. Therefore, according to Frankfurter, NOT FOR SALEFourteenth OR DISTRIBUTION Amendment originally intended the BillNOT theFOR due SALE process OR clause DISTRIBUTION only selectively incorporated those provisions necessary to fundamental fairness. In a series of cases, the fundamental values protecting the First Amendment freedoms of speech, religion, and assembly were held to be binding on the states, Key Terms © Jones & Bartlett Learning, LLCbut the Fifth Amendment’s protection© Jones against & Bartlett double Learning, LLC NOT FOR SALE OR DISTRIBUTION 46 NOT FOR SALE OR DISTRIBUTION Hurtado v. California jeopardy was not. Supreme Court decision that the Fifth Amendment In 1953, when Earl Warren was appointed Chief guarantee of a grand jury indictment applied Justice of the Supreme Court, a liberal majority was only to federal—not state—trials, and that not all formed on the court. It rapidly expanded the appli- constitutional amendments were applicable to the cation of the due process clause to the states. Over ©states. Jones & Bartlett Learning, LLC the next two© Jones decades, & theBartlett Warren Learning, Court handed LLC NOTincorporation FOR SALE OR DISTRIBUTION down numerousNOT FOR decisions SALE establishing OR DISTRIBUTION individual The legal interpretation by the U.S. Supreme Court in and civil rights, and clearly moved the court from which the Fourteenth Amendment applied the Bill of its fundamental fairness position to one of absolute Rights to the states. compliance. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

9781284133479_CH03_047_065.indd 64 12/08/16 4:04 PM © Jones & Bartlett Learning LLC, an Ascend Learning Company. NOT FOR SALE OR DISTRIBUTION.

PART 1 Crime and Criminal Justice 65

• Laws are formalized rules that reflect a body held criminally responsible for that action. of principles© prescribing Jones & or Bartlett limiting Learning,people’s LLC These circumstances involve© Jones legal &justifications Bartlett Learning, LLC actions. The lawsNOT collectively FOR SALE known OR as criminalDISTRIBUTION and excuses, or defensesNOT that FOR negate SALE a person’s OR DISTRIBUTION law are generally divided into the subcategories criminal responsibility. of substantive law and procedural law. Together, • Although the insanity defense is successfully they provide the framework for the criminal raised in less than 1% of all criminal cases, it justice system. remains very controversial. The federal govern- ©• JonesMost criminal & Bartlett law in Learning, the United StatesLLC has its ment ©and Jones many of & the Bartlett states have Learning, revised their LLC NOTorigins FOR in SALEEnglish commonOR DISTRIBUTION law. One of the most insanityNOT statutes FOR in recentSALE years, OR and DISTRIBUTION several have important contributions from common law was developed “guilty, but mentally ill” statutes to stare decisis (the doctrine of precedent). supplement other insanity defenses. • Crimes have generally been conceptually divided • Procedural criminal law establishes protections between those considered to be mala in se (inher- for individuals against unfair prosecution. These © Jones & Bartlettently Learning, wrong or evil LLC acts) and those considered© Jones safeguards& Bartlett are Learning,found in the LLCFourth, Fifth, Sixth, NOT FOR SALEto OR be malaDISTRIBUTION prohibita (acts that are wrong becauseNOT FORand SALE Eighth OR Amendments DISTRIBUTION contained in the Bill they are prohibited by a criminal statute). Crim- of Rights. inal codes further distinguish crimes as felonies, • The constitutional protections found in the Bill misdemeanors, and infractions. of Rights were initially interpreted to apply only • For an act to be defined as a crime, a number of in federal prosecutions. It was not until the rat- elements must© be Jones present: &actus Bartlett reus (criminal Learning, act), LLC ification of the Fourteenth© Jones Amendment, & Bartlett which Learning, LLC mens rea (criminalNOT intent), FOR SALEand the ORconcurrence DISTRIBUTION occurred nearly 80 yearsNOT after FOR the adoption SALE OR of DISTRIBUTION of these two concepts. the Bill of Rights that they began to be applied • In certain circumstances, an individual might to the states as well. engage in an act defined as a crime, yet not be © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION DIGGING DEEPER

1. Is a criminal act by a person who is a “victim” of crimes always face eventual possible prosecution © Jones & Bartlettan unjust Learning, society morallyLLC wrong? Who should© Jonesfor & theirBartlett acts? Learning, LLC NOT FOR SALEdetermine OR DISTRIBUTION if, and to what extent, a society is unjust?NOT FOR5. Should SALE inchoate OR DISTRIBUTION offenses be charged differently 2. Why is mens rea (criminal intent) such an important than completed crimes? By minimizing the element to establish in a criminal case? Should sentence for getting caught in the act, is the parents be held criminally liable for the gang-re- system unduly rewarding offenders with reduced lated activities of their children? sentences? 3. Should the insanity© Jones defense & Bartlettbe allowed? Learning, Should LLC6. Are the guarantees of ©due Jones process & for Bartlett people Learning, LLC all states adoptNOT “guilty, FOR but mentally SALE ill”OR or DISTRIBUTION “guilty, accused of crimes reasonable?NOT FOR Do they SALE make OR it DISTRIBUTION but insane” statutes? Why or why not? more difficult to deal with the crime problem? 4. Why should there be any statutes of limitation Why are they so important to protect? in criminal law? Should persons who commit

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