Suggested Additional Assignments
Research: Corporate Crime
Students should find a newspaper or magazine article involving crime committed by a business or
corporate executive. What are the economic costs of the (alleged) crime? What penalties can the State
impose for the crimes? Are the penalties too harsh or too weak when compared to penalties for street
crime? How should the law deal with the defendant’s conduct?
Research: Computer Crime
Students should find a newspaper or magazine article involving a computer crime, such as online fraud,
online identity theft, or use of sites such as Craigslist and Facebook to perpetrate crimes. What new issues
or obstacles are raised when crime is committed online? What new problems might the computer raise for
law enforcement?
Research: Revolving Door?
Students should research recidivism rates for U.S. prisons. What percentage of prisoners return to prison
for committing new crimes? Do recidivism rates differ by the type of crime a person committed? By age
of the prisoner when committed to prison? By race? By education? By sex? By the type of penal
environment in which the prisoner served time?
Field Work: Criminal Court
Students should visit a criminal session of a local trial court and observe court proceedings for a
minimum of two hours. Students should attempt to find a criminal trial, sentencing, or pre-trial motions.
They should sit, observe, and compare what they see with the images they’ve formed of criminal court
from the media.
Chapter Overview
Chapter Theme
Criminal behavior extends far beyond the street crime that is fodder for television dramas—white-collar
crime has a greater economic impact than street crime. Criminal law differs in important ways from civil
law, the subject of most of the text: the state prosecutes the wrongdoer, the wrongdoer can face lengthy
imprisonment or death, and rights embedded in the Constitution protect individuals accused by the state
of criminal behavior.
The Di erence Between a Civil and
Criminal Case
Civil law involves the rights and liabilities that exist between private parties. If one person claims that
another has caused her a civil injury, she must file a lawsuit and convince a court of her damages.
Conduct falls under criminal law when society outlaws it. When a state legislature or Congress concludes
that certain behavior threatens the population generally, it passes a statute forbidding that behavior.
Prosecution
Only the government can prosecute a crime and punish the perpetrator by sending him to prison. The
government may also impose a fine, but it keeps the fine and does not share it with the victim. (Although
the court will sometimes order restitution, meaning that the defendant must reimburse the victim for harm
suffered).
Burden of Proof
In a civil case, the plaintiff must prove her case only by a preponderance of the evidence. But because the
penalties for conviction in a criminal case are so serious, the government must prove its case beyond a
reasonable doubt.
Right to a Jury
The facts of a case are decided by a judge or jury. A criminal defendant has a right to a trial by jury for
any charge that could result in a sentence of six months or longer. The defendant may demand a jury trial
or may waive that right, in which case the judge will be the factfinder.
Felony/Misdemeanor
A felony is a serious crime, for which a defendant can be sentenced to one year or more in prison. Murder,
robbery, rape, drug dealing, money laundering, wire fraud, and embezzlement are felonies. A
misdemeanor is a less serious crime, often punishable by a year or less in a county jail. Public
drunkenness, driving without a license, and simple possession of one marijuana cigarette are considered
misdemeanors in most states.
Criminal Procedure
Criminal procedure is the procedure for initiating and coordinating criminal prosecutions. Criminal
procedure is designed to protect the accused and ensure that the trial is fair.
Conduct Outlawed
Crimes are created by statute. The prosecution must demonstrate that the defendant’s conduct is outlawed
by a statute.
State of Mind
Voluntary Act
A defendant is not guilty of a crime if she committed it under duress. However, the defendant bears the
burden of proving by a preponderance of the evidence that she acted under duress.
Entrapment
When the government induces the defendant to break the law, the prosecution must prove beyond a
reasonable doubt that the defendant was predisposed to commit the crime.
Gathering Evidence: The Fourth Amendment
The Fourth Amendment to the Constitution prohibits the government from making illegal searches and
seizures of individuals, corporations, partnerships, and other organizations. The goal of the Fourth
Amendment is to protect the individual from the powerful state.
Warrant
As a general rule, the police must obtain a warrant before conducting a search. The warrant must specify
with reasonable certainty the place to be searched and the items to be seized.
Probable Cause
Police must demonstrate probable cause in order to obtain a warrant. Probable cause means that, based on
all of the information presented, it is likely that evidence of a crime will be found in the place to be
searched.
Searches Without A Warrant
There are seven circumstances under which police may search without a warrant:
• Plain View.
• Stop and Frisk.
• Emergencies.
• Automobiles.
• Lawful Arrest.
• Consent.
• No Expectation of Privacy.
The Fourth Amendment — Exclusionary Rule
Under the exclusionary rule, evidence obtained illegally may not be used at trial. The Supreme Court
created the exclusionary rule to ensure that police conduct legal searches.
Question: Does it make sense to exclude legitimate evidence because a police officer made a mistake
in getting a warrant? This could allow the criminal go free because the constable blundered?
Answer: The Supreme Court has created the exclusionary rule as a judicial remedy to protect all
Question: Does the Supreme Court think that all police want to abuse the average citizen?
Answer: No. What the Court has said, by crafting the rule, is that one of the most valuable things
Question: I haven’t done anything wrong and am not worried about the police “smashing in my doors
in the middle of the night.” Why should I care about the exclusionary rule?
Answer: There’s a saying—“A liberal is a conservative who has just been arrested; a conservative is a
liberal who has just been mugged”—that, while obviously painting with overbroad strokes, contains
Question: The difference between a lawful search or arrest and an unlawful one is often a warrant.
What is so special about a warrant?
Answer. The warrant requirement means that the police must obtain the permission of a neutral
person before conducting most searches or making most arrests. Because the police are charged with
Question: What might happen if there was no requirement for probable cause?
Answer: For example, police might reason that a certain percentage of students at a large university
use illegal drugs, and that therefore it would be profitable to stake out the campus and search
Question: What is wrong with being searched if you don’t have anything to hide?
Answer: Being searched is—by definition—invasive. Some people might not mind it, but there are
many who do not want to feel that they live in a police state. Also, to allow police to search without a
Question: How many people go free because of the exclusionary rule?
Answer: Very few. As the text reports, most studies have shown that less than 1 percent of those
prosecuted go free because evidence is excluded. Courts deny the great majority of motions to
Additional Case: U.S. v. Raymond Vanhoesen, a/k/a Sham, and
Jermaine Vanhoeson a/k/a Waleek1
Facts: Police arrested Defendant Vanhoesen on February 20, 2003 in Albany, NY. Defendant claims that
on that date he drove to the Charter School in Albany to give Reno Conley a ride, as a favor to his cousin.
While Defendant was waiting for Conley, a black SUV with tinted windows approached him. The SUV
contained police officers who had engaged an informant to arrange a drug deal. Defendant backed his car
up through an alley to escape, supposedly fearing that the car contained assailants attempting to shoot
him, as had happened to him before. In doing so, Defendant backed into a different police car which was
blocking the alley and which had its emergency lights on. Defendant eventually fled the area and was
allegedly observed throwing something from the window. Defendant pulled over a short while later and
police took him into custody.
Police officers collected items from the vehicle and the person of Defendant. Items included cocaine, a
cell phone, pager, cash, and paperwork. Police also later found a quantity of cocaine where Defendant
allegedly tossed the item.
Defendant moved to suppress moved to suppress evidence found in his vehicle, on his person, and on the
street in an area through which he had fled from police.
Issue: Did police have probable cause to arrest Defendant without a warrant? Was the evidence obtained
during the warrantless search admissible? Did Defendant have a legitimate expectation of privacy in the
drugs he threw out of his car while fleeing?
Holding: The District Court held, inter alia, that: 1) police had probable cause to arrest Defendant without
a warrant; 2) evidence seized in a warrantless search of defendant’s car and his person was admissible;
and 3) Defendant had no expectation of privacy in drugs he threw out of his vehicle while fleeing. Motion
denied.
Excerpts from the decision: Defendant was arrested after he pulled over. The Court finds that the police
had probable cause to arrest the Defendant at that point based on, inter alia, corroboration by the police
and the events which occurred after the initial attempt to stop Defendant. Although flight alone is
generally insufficient to justify a stop or pursuit, Officers may establish probable cause based on
Defendant’s flight in conjunction with other circumstances such as time, location and the police officers’
knowledge that a crime had been committed. The probable cause to arrest Defendant came not only from
his highly suspicious and illegal attempt to flee from cops, but also from the informant’s coded phone
conversations between the informant and Defendant, the verified description of Defendant’s car, and the
police observation.
Further, evidence that is seized incident to arrest is admissible, assuming that the arrest was supported by
probable cause which, as established in the preceding paragraph, it was. Defendant’s arrest was, therefore,
constitutionally permissible. Defendant’s argument seeking to suppress the evidence seized from his car
and person is linked to his argument that the police lacked probable cause to arrest him. Having already
established probable cause to arrest, Defendant’s Motion to suppress the items seized from his vehicle and
from his person is denied.
Finally, when an individual, such as Defendant, has abandoned property, he no longer has any expectation
of privacy in the property. Defendant abandoned the drugs while being pursued by the police.
Accordingly, Defendant’s Motion to Suppress the crack cocaine found on the street is denied.
Question: What is probable cause?
1 552 F.Supp.2d 335, United States District Court, N.D. New York.
to be arrested. Probable cause is determined by looking at the facts the officer had available at the
time of, and immediately prior to, arrest.
Question: Why did the court conclude that Defendant had no reasonable expectation of privacy when
he threw the drugs out of his car while fleeing the scene?
Answer: Defendant has no expectation of privacy in any property he abandoned while being pursued
Additional Case: Brigham City, Utah v. Charles W. Stuart2
Facts: Responding to a 3 a.m. call about a loud party, police arrived at the house in question, heard
shouting inside, proceeded down the driveway, and saw two juveniles drinking beer in the backyard.
Upon entering the yard, police saw a confrontation in the kitchen between four adults and a juvenile. The
juvenile punched one of the adults and caused him to spit blood in a sink. An officer opened the screen
door through which they were looking and announced the officers’ presence. Unnoticed, the officer
entered the kitchen and again cried out, whereupon the altercation gradually subsided. The officers
arrested respondents and charged them with contributing to the delinquency of a minor and related
offenses.
The trial court granted their motion to suppress all evidence obtained after the officers entered the home
on the ground that the warrantless entry violated the Fourth Amendment. The Utah Court of Appeals
affirmed. The State Supreme Court affirmed, inter alia, that the entry did not fall within the exigent
circumstances exception to the warrant requirement. The US Supreme Court granted certiorari.
Issue: Were the officers justified in entering the home without a warrant?
Holding: Regardless of their subjective motives, police officers were justified in entering a home without
a warrant under the exigent (emergency) circumstances exception to warrant requirement.
The Court reasoned that the Fourth Amendment’s ultimate touchstone is “reasonableness.” Further, the
warrant requirement is subject to certain exceptions. For example, one emergency that relieves the cops
from the requirement is the need to render emergency assistance to occupants of private property who are
seriously injured or threatened with such injury. Here, the officers were confronted with ongoing violence
occurring within the home. The officers’ entry here was plainly reasonable under the circumstances.
Reversed and remanded.
Question: What effect does the Supreme Court’s decision have on this case?
Answer: The Supreme Court’s decision reversed both previous courts’ decisions to suppress all
evidence obtained after the officers entered the home. Without this evidence, there is a greater chance
You Be the Judge: Ohio v. Smith 3
Facts: Wendy Northern was hospitalized for a drug overdose. When police questioned her in the hospital,
she identified her drug dealer as Antwaun Smith. She then called him to arrange for the purchase of crack
cocaine at her house that evening. When Smith arrived at her house, the police arrested him, searched him
and confiscated his cell phone. Sometime later when the police looked at the phone, they discovered call
records and phone numbers that confirmed this phone had been used to speak with Northern.
2 126 S.Ct. 1943, Supreme Court of the United States.
3 2009 Ohio 6426; 920 N.E.2d 949; 2009 Ohio Lexis 3496 Supreme Court of Ohio, 2009.
The police had neither a warrant nor Smith’s consent to search the phone. Smith filed a motion requesting
that the evidence from his cell phone be excluded because it had been obtained without a warrant. After
the judge denied this motion, Smith was found guilty and sentenced to 12 years in prison. The appeals
court upheld his conviction. He appealed to the Ohio Supreme Court.
You Be the Judge: Was the search of Smith’s cell phone legal? Should the evidence found on the phone
be excluded?
Argument for the police: The police have the right to search anyone they arrest. During a perfectly legal
search, they discovered Smith’s cell phone. Prior courts have ruled that defendants have a low expectation
of privacy in address books and that police can search them without a warrant. A cell phone is an
electronic address book. Therefore, the search of Smith and the subsequent search of the contents of the
phone were both legal. The evidence was properly admitted in court.
Argument for Smith: Police have the right to search someone they have arrested so that they can protect
themselves and prevent evidence from being destroyed. A search of the cell phone’s contents was not
necessary to ensure officer safety, and there was no evidence that the call records and phone numbers
were in danger of being destroyed. Once the police had the phone, they had plenty of time to ensure that
the data were preserved. Additionally, they might have been able to obtain Smith’s phone records from his
service provider.
The police were entitled to search Smith and discover his cell phone. But they did not have the right to
search the phone without a warrant. Modern cell phones are much more similar to a laptop than to an
old-fashioned address book — they have the ability to transmit large amounts of personal data in various
forms. Courts have ruled that defendants have a high expectation of privacy in laptop computers and that
the police must obtain a warrant before searching one. It would be a terrible precedent to declare that the
police could search cell phones without a warrant.
Question: Was the search of Smith’s cell phone legal?
Answer: There are obviously two ways to look at this. One could say that Smith had an expectation
Question: Should the evidence found on the phone be excluded?
Answer: Here again, there are two views. Prosecuting attorneys, however, may be able to get this
The Patriot Act
In response to the devastating attacks of September 11, 2001, Congress passed a sweeping antiterrorist
law known as the Patriot Act. The statute was designed to give law enforcement officials greater power to
investigate and prevent potential terrorist assaults. The law also permitted the Federal Bureau of
Investigation (FBI) to issue a national security letter (NSL) to communications firms such as Internet
service providers (ISPs) and telephone companies. An NSL typically demanded that the recipient furnish
to the government its customer records, without ever divulging to anyone what it had done.
The Patriot Act has been questioned and tested in the courts, resulting in some revisions.
Fifth Amendment – Due Process
The Fifth Amendment requires due process in all criminal procedures and prohibits double jeopardy
(being tried for the same offense twice) and self-incrimination
Self-Incrimination
The Fifth Amendment bars the government from forcing any person to testify against himself. In other
words, the police may not use mental or physical coercion to force a confession or any other information
out of someone.
Exclusionary Rule – Again
If the police do force a confession, the exclusionary rule prohibits the prosecution from using it or any
information they obtain as a result what the defendant has said. (This secondary information is referred to
as “the fruit of the poisonous tree.”)
Miranda Rights
Law enforcement officials must inform a suspect of his Fifth Amendment right to remain silent and
protection from self-incrimination before interrogation of the suspect.
Landmark Case: Miranda v. Arizona4
Facts: Ernesto Miranda was a mentally ill, indigent citizen of Mexico. The Phoenix police arrested him
at his home and brought him to a police station, where a rape victim identified him as her assailant. The
police did not tell him that he had a right to have a lawyer present during questioning. After two hours of
interrogation, Miranda signed a confession that said that it had been made voluntarily.
At Miranda’s trial, the judge admitted this written confession into evidence over the objection of defense
counsel. The officers testified that Miranda had also made an oral confession during the interrogation. The
jury found Miranda guilty of kidnapping and rape. After the Supreme Court of Arizona affirmed the
conviction, the U.S. Supreme Court agreed to hear his case.
Issues: Was Miranda’s confession admissible at trial? Should his conviction be upheld?
Decision: Neither his written nor his oral confession was admissible. His conviction was overturned.
Reasoning: To maintain a fair balance between state power and individual rights, to respect human
dignity, our system of criminal justice demands that the government seeking to punish an individual
produce the evidence against him by its own independent labors rather than by the cruel, simple expedient
of compelling it from his own mouth.
Therefore, once the police take a suspect into custody or otherwise deprive him of his freedom, they are
required to protect his Constitutional right to avoid self-incrimination. To do so, they must warn him that
he has a right to remain silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. If the police do not inform
the accused of these rights, then nothing he says or writes can be admitted in court.
The defendant may waive these rights, provided the waiver is made voluntarily, knowingly, and
intelligently. If, however, he indicates in any manner and at any stage of the process that he does not want
to be interrogated or wishes to consult with an attorney before speaking, then the police cannot question
him. The mere fact that he may have answered some questions or volunteered some statements on his
own does not deprive him of the right to refrain from answering any further inquiries until he has
consulted with an attorney.
Question: What happened to Miranda after the Supreme Court ruling?
Answer: He was retried without the confession but due to witness testimony and other evidence, he
Question: What was Miranda’s life after parole?
4 384 U.S. 436; 1966 U.S. LEXIS 2817 Supreme Court of the United States, 1966.
Answer: He autographed “Miranda cards” and was stabbed to death in an argument in a bar in
January 1976.
Right to a Lawyer
A criminal defendant has the right to a lawyer before being interrogated by the police. The Sixth
Amendment guarantees the right to a lawyer at all important stages of the criminal process. Because of
this right, the government must appoint a lawyer to represent, free of charge, any defendant who cannot
afford one.
After Arrest
Indictment
The grand jury — a group of ordinary citizens — determines whether there is probable cause that this
defendant committed the crime with which she is charged. If the grand jury determines that there is
probable cause, an indictment issues. An indictment is the government’s formal charge that the defendant
has committed a crime and must stand trial.
Arraignment
At an arraignment, a clerk reads the formal charges of the indictment. The judge now asks the lawyer how
the defendant pleads to the charges. At this stage, most defendants plead not guilty.
Discovery
During the months before trial, both prosecution and defense will prepare the most effective case
possible. There is less formal discovery than in civil trials. The prosecution is obligated to hand over any
evidence favorable to the defense that the defense attorney requests. The defense has a more limited
obligation to inform the prosecution.
Plea Bargaining
Sometime before trial, the two attorneys will meet to consider a plea bargain. A plea bargain is an
agreement between prosecution and defense that the defendant will plead guilty to a reduced charge and
the prosecution will recommend to the judge a relatively lenient sentence. In the federal court system,
about 75% of all prosecutions end in a plea bargain. In state court systems, the number is often higher. A
judge need not accept the bargain, but usually does.
Trial and Appeal
When there is no plea bargain, the case must go to trial. The mechanics of a criminal trial are similar to
those for a civil trial, described in Chapter 3, on dispute resolution. It is the prosecution’s job to convince
the jury beyond a reasonable doubt that the defendant committed every element of the crime charged. The
defense counsel will do everything possible to win an acquittal. In federal courts, prosecutors obtain a
conviction in about 80% of cases; in state courts, the percentage is slightly lower. Convicted defendants
have a right to appeal, and again, the appellate process is similar to that described in Chapter 3.
Double Jeopardy
The prohibition against double jeopardy means that a defendant may be prosecuted only once for a
particular criminal offense. The purpose is to prevent the government from destroying the lives of
innocent citizens with repetitive prosecutions.
Question: People have been prosecuted by a state and by the federal government for the same
offense. Why doesn’t that violate double jeopardy?
Answer: To qualify as double jeopardy a second prosecution must be done by the same sovereign that
were first charged by the State of California. Their acquittal led to the 1992 Los Angeles riots. The
United States then prosecuted the officers for civil rights violations and obtained convictions against
two. Because the United States is a different sovereign from California, there was no double jeopardy
problem.
Question: Is that fair?
Question: O. J. Simpson was acquitted after the most highly publicized trial in history, yet he was
then sued by the families of the victims. Didn’t that violate double jeopardy?
Punishment
The Eighth Amendment prohibits cruel and unusual punishment. The most dramatic issue litigated
under this clause is the death penalty. The Supreme Court has ruled that capital punishment is not
inherently unconstitutional. Most state statutes divide a capital case into two parts, so that the jury first
considers only guilt or innocence, and then, if the defendant is found guilty, deliberates on the death
penalty. As part of that final decision, the jury must consider aggravating and mitigating circumstances
that may make the ultimate penalty more or less appropriate.
The Eighth Amendment also outlaws excessive fines. Forfeiture is the most controversial topic under
this clause. Forfeiture is a civil law preceding that is permitted by many different criminal statutes. Once
a court has convicted a defendant under certain criminal statutes—such as a controlled substance law—
the government may seek forfeiture of property associated with the criminal act.
Case: Ewing v California5
Facts: California passed a “three-strikes” law, dramatically increasing sentences for repeat offenders. A
defendant with two or more serious convictions, who was convicted of a third felony, had to receive an
indeterminate sentence of life imprisonment. Such a sentence required the defendant to actually serve a
minimum of 25 years, and in some cases much more.
Gary Ewing, on parole from a 9-year prison term, stole three golf clubs worth $399 each, and was
prosecuted. Because he had prior convictions, the crime, normally a misdemeanor, was treated as a felony.
Ewing was convicted and sentenced to 25 years to life. He appealed, claiming that the sentence violated
the Eighth Amendment.
Issue: Did Ewing’s sentence violate the Eighth Amendment?
Decision: No, the sentence did not violate the Eighth Amendment. Affirmed.
Reasoning: States have a valid interest in deterring and jailing habitual criminals. Nothing in the Eighth
Amendment prohibits the California legislature from choosing this method of protecting the public.
Recidivism is a serious public safety concern nationwide. According to a recent report, 67 percent of
former inmates released from state prison were charged with a serious new crime within three years.
Property offenders like Ewing were even likelier to commit a new crime than those who served time for
violent crimes.
Ewing had already been convicted of numerous misdemeanors and felonies and had served nine terms of
incarceration. He committed most of his crimes while on parole or probation. His previous convictions
included serious crimes, such as robbery and residential burglary. By imposing a three-strikes sentence,
the State is not merely punishing the “triggering” offense. The State is also deciding to treat more harshly
someone whose repeated criminal acts demonstrate that he is incapable of conforming to the norms of
society.
Unquestionably the sentence is a long one, and the three-strikes law has generated controversy. But
criticism of the statute should be directed to the State legislature. Federal courts do not sit as a
5 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 United States Supreme Court, 2003.
“super-legislature,” second-guessing policy choices made by elected officials. The three-strikes law
represents a rational legislative judgment, entitled to judicial deference, that repeat offenders who have
committed serious crimes must be incapacitated.
Question: What are “three-strikes” laws?
Question: How does the three-strikes law decide whether punishment is cruel and unusual?
Answer: In In re Lynch6 the California Supreme Court stated “a penalty offends the proscription
Question: Twenty-five years seems disproportionate for shoplifting.
Question: Then why didn’t the Court hold it to be cruel and unusual in violation of the 8 th
Amendment?
Answer: Because the Court was not considering Ewing’s sentence in a vacuum. He was sentenced
Question: What were those reasons?
Answer: The State passed its three-strikes law to address recidivism—new crimes committed by
Question: Does the Court agree that the three-strikes law is a good idea?
Answer: It does not say and that is not the point of its opinion. The Court decided that the
6 8 Cal.3d 410, 424 California Supreme Court, 1972.