American Legal System
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Criminal Law,
We’ve discussed substantive v. procedural due process – substantive, malum in se and malum prohibitum; values of society change, some easier than others to identify, change over time; procedural due process – better for 10 guilty persons to go free than one innocent person be found guilty – history, governments using the law to persecute those of different political, religious, other type of beliefs, ethnic origin; colonists, having experienced this, especially sensitive to it. Over past few decades however many of the very strict rules protecting these values have been eroded by the Supreme Court … some say reasonably so, others politically agenda/motivated.
Substantive:
Malum in se – murder, rape – gambling? drugs? prostitution? Argument is they lead to other crimes, open to discussion … malum prohibitum – from parking violations to drug taking to same sex and interracial marriage – again, changes over time.
Elements of a Crime:
Actus Reus – “an act or action” – first thing that must be shown to have been committed; and “a person actually accused of a crime” - if crime not well defined, defenses include void for vagueness, certain crimes can be found to violate 4th amendment for failure sufficiently to provide notice of what a crime consists of when finding someone guilty of it; standard for being too vague is if “men of common intelligence must necessarily guess at its meaning” - crime can be an affirmative act, or a failure to act, text gives example of Timothy McVeigh’s intent to bomb building in Oklahoma City resulting in 168 deaths and person who learned beforehand of his plan but never disclosed it as liable for some criminal count(s) …
Actus Reus -- proven by physical or eyewitness evidence
Mens Rea: guilty mind; acting knowingly, willfully, intentionally, recklessly – can’t constitutionally be found guilty of crime if you didn’t know you were committing it; again, text uses as example: murder of police officer is a capital offense, that is stiffer penalty than most other murders but if killer didn’t know person was a police officer, then the accused didn’t have the mens rea – unlike Actus Reus, obviously this is more difficult to prove, as it involves getting into the criminal’s head.
Defenses include insanity: you did crime but didn’t know difference between right and wrong because incapable of distinguishing between them; similarly children not guilty of certain crimes for same reason, assuming they are incapable of truly understanding consequences of their actions or differences between what society deems right and wrong;
Issues: execution of mentally retarded – for long time held not to violate 8th Amendment’s prohibition against cruel and unusual punishment. S.Ct. changed law in 2002, based on growing national consensus against death penalty of mentally ill.
Same re: juveniles; Court ruled finally, in 2005, that kids under age 18 could not be given death sentence no matter the crime.
Causation – Did what the defendant do cause the injury, that is, you ask “but for” what s/he did, the injury would/would not have occurred:
Direct causation: nothing intervenes between the act and the injury/harm (A shoots B and B dies, direct);
Proximate cause – A shoots B, B doesn’t die from wound, but in
hospital contracts an infection that does kill B – Is A still liable for
B’s death? A is guilty of something, but murder? Difficult; if prove
proximate cause then murder/manslaughter but otherwise, lesser offense –
defends on extent of the intervening event;
Culpability
– not just person who pulled the trigger, but others may be implicated
and charged if they somehow aided, abetted or conspired in the bad act;
previously distinctions but now all involved prior to event are subject
to the same culpability; only the “after the fact” accessory, e.g.,
someone who assists escape of the person who committed the crime, has a
lessened liability.
People
who did not commit crime directly often charged; examples, store owner
whose employees sell tobacco or alcohol to minors; CEOs of companies
that commit fraudulent acts or crimes, oil spills, financial
machinations, etc.
Criminal codes (extensive, by state except for federal crimes)
have statutory defenses or justifications that can eliminate liability,
such as insanity, age, involuntary intoxication, duress, choice of
evils, self-defense and defense of others are some examples. To use any
such defense, of course, the defendant has to admit s/he committed the
crime. Other defenses include that the criminal statute is
unconstitutional, void because of vagueness, etc.
Standard of Proof
– As we discussed, in our legal system, person who brings the claim
bears standard of proof – burden on person or State to prove guilt of
other party. Civil cases, as we discussed, standard is ”preponderance
of evidence” so that however slight, must be more likely than not that
plaintiff’s burden has been met. Standard much higher in criminal cases
– “beyond a reasonable doubt.” We discussed reasons for this several
times, as a reminder check pages 182-183.
Procedural Criminal Law - again, to assure that government plays by the rules; text focuses on 3 subjects:
Search and seizure: 4th
Amendment assures the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures and no warrants shall issue except upon probable cause,
supported by oath and particularly describing the place to be searched
and the persons of things to be seized.
Prohibited: “unreasonable” searches and seizures” – what is reasonable? courts decide;
Warrants: “on probable cause” – what is probable cause, nebulous term? Again, evidence presented, courts decide;
Text notes tendency of late for courts to substitute “probable
cause” for “reasonable,” permitting, as examples given, searches on the
spot without meeting probable cause standard because found “reasonable” –
include searches of public school student purses, highway sobriety
checkpoints, mandatory drug testing of rail road employees following
train wreck, random searches of passengers on interstate buses …
4th
Amendment requires that warrant be specific – but sufficient vagueness
in language to allow for conflicting and changing court rulings on what
amount of specificity is required (remember, these issues come up
when??? – a defendant arrested based on a search or warrant, etc.,
brings challenge that the search or warrant violated his/her
constitutional rights under the 4th Amendment).
Text notes Framers not unfamiliar with abuse of English seeking
to expose traitors and so were concerned about these rights; changes
over time, in society, technology, types of crime, way we live, etc.,
all have resulted in changing constitutional standards, to which the
political framework that also influences who is on the bench plays a
part.
Three types of items forbidden to be on your person:
contraband (illegal drugs, explosives, obscene materials);
fruits of the crime – stolen goods or money;
instrumentalities of the crime – tools and weapons used in commission of crime, which can even include a getaway car;
In Warden v. Hayden, 1967, Supreme Court created a 4th
category, “mere evidence” – house of a man suspected of robbing a taxi
company searched without a warrant; first issue, although no probable
cause Court ruled search was reasonable; then saw clothes that matched
description of eye witnesses; dropping fiction that they were
“instrumentalities of the crime” as legal basis for taking them, Court
approved their seizure on the grounds of this new category of “mere
evidence.” Rationale – 4th amendment to protect privacy, not property …
How evidence obtained; at first not subject to judicial scrutiny, changed by historic case of Weeks v. United States, 1914, when the Court ruled that the illegal seizure of letters and other private documents of a man accused of running an illegal lottery, if permitted to be used as evidence, would render meaningless the protections of the 4th Amendment. This was the case that gave birth to the exclusionary rule which we have discussed: essentially, “evidence obtained in violation of a person’s constitutional rights must be excluded from the trial of the accused person.” Weeks at first only applied to federal cases, but Supreme Court extended its protection to the states, meaning all state prosecution had to follow its edicts, in 1961 in Mapp v. Ohio.
Much controversy over exclusionary rule, to this day. Text example – one rationale, to avoid aiding and abetting police misconduct such as torture used to obtain a confession, even if that confession is truthful. By permitting such “evidence” to be used against the defendant would be to approve police misconduct and thereby essentially permit government to commit crimes to convict criminals. Second reason is without these types of protection the rights of the 4th amendment lose all meaning. Third, deterrent effect, on police misconduct. Fourth, related to others, it is only way to assure constitutional rights – everyone, including police, must obey the constitution. Other way suggested to secure these rights, like use the evidence but punish guilty police workers, or allow those convicted to file civil suits, all have failings and seem less effective than exclusionary rule. Finally, means do not justify ends rationale coupled with better to let ten guilty go free than one innocent be jailed.
Opponents of rule: purpose of trial is to get to truth; even if illegally seized evidence is used, so what, as long as criminal is caught and justice is served. These people argue that only in cases where police misconduct so egregious it ”shocks the conscience” should the exclusionary rule be applied. Second, if argument for exclusionary rule is to protect person’s privacy, it’s too late because it has already been violated – how does excluding the evidence further any 4th amendment guarantee? Damage done, why let guilty person go free? Re: deterrent effect, applies only where police knowingly break the law; what if the officer thought the search was legal and it turns out it wasn’t – what is there to deter? It was a “good faith” error. Fourth argument, exclusionary rule punishes, in the end, the wrong people – that is the public, because the guilty person is set free once again to prey on the innocent; the cops, on the other hand, are not punished per se, they just lose their bust. Finally, opponents argue the rule breeds contempt for the law as the public doesn’t comprehend the reasons why some seemingly guilty person caught, without virtually a doubt is guilty, but then is let free on a so-called technicality and thereby become contemptuous of the law.
Debate continues but in 2006 a very contested Supreme Court decision declared that future questions about the exclusionary rule will focus on the “social costs to be weighed against the deterrence,” whatever that standard means and can be applied, and that the threat of civil lawsuits and internal department disciplinary actions would adequately discourage inappropriate police behavior. Hudson v. Michigan.
Searches and Seizures: when legal, when not.
Legal – pursuant to legally obtained search warrant from judge based on sufficient evidence to show probable cause.
Second type – pursuant to lawful arrest – need, for example, for officer to uncover any weapons suspect might have that could harm others or aid in escape. But Court has made clear THAT search could only include areas within the immediate reach of the suspect. In case that established that rule, the police had searched pursuant to arrest warrant the suspect’s entire house over his objections – Court held search too broad and warrantless search found illegal beyond arrested person’s immediate reach. To do what they did they also needed legal search warrant and return later on to conduct search.
Third category of reasonable searches stems from permission granted – issues arise, however, such as knowing or intelligent waiver, one done with, versus without, knowing one’s rights. Cop can ask “can I look around your house” and you don’t know you have right to say “no” or fear that even if you know your rights if you say “no” bad things could – and sometimes do – happen. Book gives example – teacher asks student ”would you like to go to the blackboard” – although asked as a question which student seemingly can refuse, in fact it’s an order to go to the blackboard phrased “politely” as a question. Does an “OK” under these circumstances constitute “permission?”
Re: who can give permission – must be person “with capacity,” again, issue, subject at times to dispute, of understanding, certainly age (young or old,), etc. If person has authority over area to be searched, then consent is valid, if withheld, then not and evidence if nevertheless taken cannot be used against defendant.
Stop and Frisk:
By nature, warrantless.
Leading case: Terry v. Ohio (1968) – very experienced officer saw several men seemingly “casing” a store to rob it, approached them, id’d self as police, and patted them down. Found gun, arrested for carrying concealed weapon. Convicted, Terry appealed on grounds of unreasonable search and seizure. Court ruled officer had sufficient reasonable suspicion to believe crime about to be committed and therefore justified in conducting limited “pat-down.” Must be more than a hunch – Court wording: “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts reasonably warrant the intrusion.”
Article posted on DB re: recent and growing outcry over abuse of stop and frisk, justified in part following 9/11, instances exploding, 100s of thousands in NY annually, dispute over whether it reduces crime, allegations of racial and ethnic (particularly Muslim) profiling. Not everyone opposes it. Challenge ongoing now in federal court over NY’s increased use and claimed abuse of the practice by the NYPD.
Another contentious area in search and seizure is search of automobiles and other moving vehicles: requirements for warrant can’t be used because while cops in court car is gone; so issue becomes whether in such searches there was sufficient probable cause to search particular vehicle, searches pursuant to arrest for traffic violations and inventory searches of impounded vehicles. Supreme Court has ruled no 4th Amendment violation for highway sobriety checkpoints whenever car at checkpoint was stopped, fining minor inconvenience to motorist outweighed by public safety interests and therefore the temporary “seizure” of the person without a warrant was not unconstitutional; surprisingly (?) similar seizures of citizens at checkpoints for drugs -- Supreme Court found unconstitutional.
Text notes final 2 areas of search and seizure that have created dispute involve the “plain view doctrine” and wiretaps.
Plain view doctrine: police may seize evidence in plain view without a search warrant under the following conditions only: police must be on premises legally or otherwise conducting a legal search, e.g., pursuant to valid arrest, and the nature of the evidence must be immediately apparent (i.e., that they are contraband or fruits or instrumentalities of a crime). Case: Harris v. United States (1947), where Court noted police not required to close their eyes or walk out and leave article where they saw it.
Cell phone communications, e-mails and Internet connections – how much leeway to cops to search? These types of still relatively new technology (which have posed extensive changes in civil litigation and discovery and made it even more burdensome) – is “wiretap” a search or seizure under the 4th? Framers couldn’t tell us that – Court held in Olmstead v. US (1928) that wiretap not a search because no physical invasion of a residence involved. However in another case, Katz v. US (1967) Court ruled that wiretap placed on outside of a public telephone booth constituted an illegal search and seizure, overruling Olmstead. And in Kyllo v. US (2001) Court ruled that police may not use thermal imagers to detect heat lamps used to grow illegal marijuana.
Text notes all these cases – and myriad others -- question underlying purpose of 4th – if protects property, then Olmstead is defensible; if privacy, then Katz-Kyllo are correct. As new technology makes it easier to invade our privacy text argues courts must be vigilant that law enforcement, in eagerness to fight crime, doesn’t become “big brother” (reference to “1984”).
Issue continues and gained new momentum after 9/11 and passage of the USA Patriot Act.
If you have any test reviews, homeworks, guides, anything school related that you think can be posted on this website, reach out to me at makingschooleasier@gmail.com