Criminal Law: A Desk Reference
Criminal Law: A Desk Reference
Paul Bergman, J.D.
December 2015, 3rd Edition
Understand criminal Law!
Learn your rights and how to protect yourself
Whether you face a criminal case, work in law enforcement, or simply want to know more about the criminal law system, this book can help.
Criminal Law: A Desk Reference covers the basic to the complex in alphabetical order. Whether it’s “alibi” or “writ of habeas corpus,” the book makes it easy to find and understand what you’re looking for. It even provides links to articles about the law in your state.
With this book you’ll be able to:
• learn the law with real-life examples
• understand procedures from arraignment
• determine defenses to common crimes
• examine actual criminal statutes
• understand new movements in the law, like "revenge porn" prosecutions, and
• learn about working with a lawyer.
The third edition has been thoroughly updated to reflect the latest criminal law trends and Supreme Court rulings.
”You’ve gone straight. Can your name be cleared?…This book will tell you how in minute detail.”-Whole Earth Review
“Nolo is always there in a jam as the nation’s premier publisher of do-it-yourself legal books.” - Newsweek
“The legal arena is where Nolo shines.” - San Jose Mercury News
“Nolo is a pioneer in both consumer and business self-help
books and software.” -Los Angeles Times
This book is an A to Z reference guide, so Chapter 1 is "A", Chapter 2 is "B", etc.
Chapter 1 A
Offenders who have been subject to victimization—typically a history of abuse by a spouse, significant other, or parent—may attempt to mitigate punishment or disclaim responsibility for their criminal acts because of this past abuse (the “abuse excuse”). Critics claim that advancing such factors into a criminal prosecution enables offenders to avoid accountability. Proponents, particularly attorneys who represent battered women, point out that the laws regarding self-defense are ineffective for their clients because the danger of harm must be imminent or immediate. Most states have responded by creating a defense of “imperfect self-defense.” Imperfect self-defense can apply to various defendants, including those who are victims of previous abuse. For victims of past abuse charged with attacking an abuser, it creates an opportunity to mitigate or even escape criminal responsibility by proving that the history of abuse led them to believe reasonably, if mistakenly, that force was necessary to avoid an imminent attack. Past victimization and abuse is also occasionally put forward as part of an insanity defense. An abuse victim charged with a crime claims that a history of abuse led to an inability to understand the difference between right and wrong. A convicted defendant may also cite a history of abuse during the sentencing process as a mitigating factor in punishment.
Related terms: syndrome evidence; insanity defense; self-defense.
See accomplices and accessories.
accomplices and accessories
People who assist perpetrators (or “principals”) in carrying out criminal acts are categorized either as accomplices (if they participate in the commission of a crime) or accessories (if they are behind-the-scenes participants before or after a crime is committed). Here’s how the law distinguishes between them.
Accomplices. Accomplices actively participate in the activity that constitutes a crime and are subject to the same punishment as principals. For example, the driver who waits in the getaway car while the principal robs a bank is an accomplice. An ever-present risk is that accomplices will seek to curry favor with prosecutors by exaggerating other participants’ criminal responsibility while downplaying their own. Thus, a common criminal law rule provides that an accomplice’s testimony is not by itself sufficient to sustain a conviction. Prosecutors have to offer evidence of defendants’ guilt that is independent of accomplices’ testimony.
Accessories Before the Fact. Accessories are “behind the scenes” culprits and are categorized as either “before the fact” or “after the fact” (the “fact” referring to the commission of the crime). Accessories before the fact knowingly help principals before a crime is committed but do not participate actively in its commission. Nevertheless, accessories before the fact are as guilty as principals in the eyes of the law.
EXAMPLE: Archie designed a bank building. Archie gives his friend Willie the blueprints, believing Willie’s statement that he needs them to help his child with a school project. In fact Willie uses the blueprints to rob the bank. Archie is not an accessory before the fact because he didn’t knowingly help Willie, the principal, commit the robbery. However, if Willie tells Archie, “If you get me the blueprints for the bank, I’ll rob the bank and give you a third of the loot,” and Archie gives Willie the blueprints, Archie is an accessory before the fact and may be convicted of bank robbery, just the same as if he had joined with Willie in the actual robbery.
Accessories After the Fact. These wrongdoers are the mirror image of accessories before the fact except they knowingly help principals following the commission of crimes. As with accessories before the fact, the party must knowingly assist—that is, the person must be aware that they are assisting someone who has committed a crime. The primary difference between accessories before the fact and after the fact is the punishment. While provisions vary from one jurisdiction to another, commonly the maximum penalty for accessories after the fact is one-half the maximum sentence that a principal can receive.
Edman Spangler instructed a theater employee to hold a saddled horse in the alley behind Ford’s Theater in Washington, DC, on April 14, 1865. The horse was intended to provide a getaway for John Wilkes Booth after Booth assassinated President Abraham Lincoln inside the theater. When Booth took off, Spangler slapped another theater employee and reportedly said, “Don’t say which way he went.” Knowing what Booth had done, Dr. Samuel Mudd treated the injuries that Booth suffered while carrying out the assassination. Thomas Jones furthered Booth’s escape attempt by helping him to cross the Potomac River. John Hughes hid Booth on his farm until authorities found Booth and shot him dead. Spangler, Mudd, Jones, and Hughes were all accessories after the fact. (As it turned out, Spangler was also involved in the actual assassination and he was convicted as a coconspirator.)
Legal Authority Examples
Federal: Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts, or assists an offender in order to hinder or prevent the offender’s apprehension, trial, or punishment is an accessory after the fact.
Federal: Except as otherwise expressly provided by Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both. If a principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.
California: A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that connects a defendant to a crime.
Related terms: conspiracy.
(Latin for a “guilty act.”) Virtually all crimes consist of physical actions accompanied by a mental state that a statute deems immoral or flawed (mens rea). Together, these Latin phrases form the indispensable touchstones of criminal law.
Voluntary Acts. A physical action must be voluntary to qualify as an actus reus. So, for example, if a person experiences a sudden and unanticipated epileptic seizure and injures someone else, the action is not a crime as it was involuntary. Similarly, people who have evil thoughts or who develop wicked plans may be immoral. But the criminal justice system punishes people for their deeds, not for their thoughts or beliefs. For example, someone who simply creates an electronic computer file that outlines a plan to rob a bank has not committed a crime because he has not taken an action in furtherance of his plan.
Statutes creating “status offenses” are unconstitutional because they attempt to punish people for their conditions rather than for their actions. For example, statutes purporting to punish people for being a vagrant or a drug addict are invalid. (Robinson v. California, U.S. Sup. Ct. (1962).)
Don’t Just Do Something, Sit There. Most of us celebrate heroes who try to save others from physical harm, especially if they risk their own life in the process. But the criminal justice system does not require heroism or even lifting a finger to help a person in distress. As a general rule (see the exceptions, below), people have no legal duty to prevent harm, even if they can do so at no risk to their own safety.
In 1964, Kitty Genovese was beaten to death on a street in Queens, New York. None of the at least 38 neighbors who heard her screaming for help came to her aid. The neighbors’ failure to act did not constitute a crime.
Don’t Just Sit There, Do Something. The general criminal law rule that people have no legal duty to prevent harm is subject to a limited number of exceptions. Individuals may be guilty of a crime if they fail to try to protect victims with whom they have a special and trusted relationship—for example, a parent’s neglect of a child would constitute child abuse. In a very few states, Good Samaritan laws also make it a crime to refuse to come to the aid of people in physical distress.
EXAMPLE: In the 1998 finale of the hugely popular Seinfeld TV comedy series, the show’s eccentric four main characters were convicted of violating a Good Samaritan law for standing around and laughing instead of giving aid while an overweight man was robbed at gunpoint. Each character was sentenced to a year in jail. In the real world, violation of a state’s Good Samaritan law is at most punishable by no more than a small fine.
Legal Authority Examples
Model Penal Code: To be guilty of a crime, a person must engage in a voluntary act or omit to engage in an act that he has a duty to perform. A reflex or convulsion, a bodily movement during unconsciousness or sleep, conduct resulting from hypnotic suggestion, or a bodily movement that otherwise is not a product of effort or determination does not constitute a voluntary act. Possession is an act if the possessor knowingly received the thing possessed or was aware of his control long enough to have been able to terminate possession.
Vermont: A person who knowingly fails to provide reasonable assistance to another who is exposed to grave physical harm is punishable by a fine not to exceed $100. Failure to provide assistance is punishable only if the person could have provided aid without danger to himself and without interference with important duties owed to others.
Related terms: attempts; disorderly conduct; mens rea.
An affirmative defense is a defense in which the offender does not deny that the activity occurred, but instead offers justification or mitigating factors that excuse or limit liability. Some examples are self-defense, insanity, and entrapment.
Related terms: self-defense; burdens of proof; entrapment; insanity.
See assault and battery; mayhem.
A crime committed under circumstances that elevate the seriousness of a conviction is referred to as an aggravated offense. Common aggravating circumstances include the use of a weapon and the infliction of injuries. Example: An assault that causes a victim to suffer a concussion can elevate misdemeanor simple assault to aggravated assault, a felony.
An alibi is an affirmative defense that a defendant was somewhere other than the scene of a charged crime when the crime occurred. Despite the negative connotations often provided by films and TV shows, an alibi is a perfectly respectable legal defense.
Defendants Needn’t Testify. Defendants may offer an alibi defense without giving up their constitutional right to remain silent. Any witness who can place the defendant at a location other than the scene of a charged crime can provide an alibi. For example, a defendant may remain silent and call a witness to testify and provide documentation that the defendant was at a dental appointment when a crime took place a mile away.
Burden of Proof. Defendants who offer alibi defenses do not take on the burden of proving to a judge or jury that the alibi is accurate. The burden of proving a defendant guilty beyond a reasonable doubt remains at all times on the prosecution. Of course, a judge or jury can consider the credibility of alibi evidence when deciding whether the prosecution has met its burden.
Pretrial Notice. In most states, laws called “discovery rules” require defendants to advise prosecutors prior to trial of alibi evidence that they intend to rely on. The rule gives prosecutors time to investigate an alibi and prepare to undermine it.
EXAMPLE: Blaine is charged with a sexual assault crime. He plans to offer an alibi defense that he was at a local theater watching an X-Men film at the time the assault occurred. Blaine has to notify the prosecution of this planned defense in advance of trial. The prosecution then has time to investigate the alibi. If the investigation turns up evidence that the theater was showing only Toy Story 3 on the date of the assault, the prosecutor can undermine Blaine’s alibi by calling the theater’s manager as a witness.
Legal Authority Examples
New York: Prosecutors have up to 20 days following indictment to serve a “Demand for Alibi” on defendants. Defendants who intend to rely on an alibi defense must respond to the demand within eight days, unless the court grants them more time. The response should identify the place or places where the defendant claims to have been at the time of the crime; the name of every alibi witness other than the defendant; and the home address and place of employment of every alibi witness. Defendants must supplement initial responses with information about additional alibi witnesses as they become known. A judge may exclude the alibi testimony of any defense witness whose identity was not disclosed.
Related terms: burdens of proof; failure of proof.
Animal cruelty laws punish offenders who abuse, mistreat, or neglect animals. These laws respect the value of animals—as workers, food and fiber sources, experimental subjects, and for companionship and entertainment. Animal cruelty laws also seek to protect the public by recognizing that offenders who mistreat animals may also harm individuals. In some cases, animal cruelty concerns are related to public health and safety. Animal cruelty can be punishable as either a misdemeanor or a felony.
Employees of the Westland and Hallmark meat packing plants pleaded guilty in 2007 to violating animal cruelty laws. Undercover videographers had secretly recorded them abusing “downer cows” in order to force them into the slaughter area. The angry public reaction to the images was partly fueled by a concern that since downer cows were more likely to carry diseases, using them for food endangered human health.
Anticruelty rules also apply when animals are presented as entertainment. For example, circus trainers can use only reasonable physical force to prepare animals to perform tricks. Trainers violate animal cruelty laws when they use excessive, noncustomary force or keep animals in squalid and unsanitary pens.
Historical Antecedents. British philosopher and barrister Jeremy Bentham was an early proponent of legal protection for animals. In An Introduction to the Principles of Morals and Legislation (1771), Bentham famously wrote, “The question is not, ‘Can they reason?’ or ‘Can they talk?’ but ‘Can they suffer?’” In the early 1800s, a Vermont law provided for imprisonment for up to five years for anyone who killed, wounded, maimed, or poisoned another person’s commercially valuable farm animal; the law did not apply to pets. A Maine statute of 1821 was the first to criminalize abuse of an owner’s own commercially valuable animal. An 1866 New York statute was the first to extend animal cruelty laws to the abuse of any kind of animal.
Abuse. Animal cruelty laws in all states forbid the intentional abuse and mistreatment of animals. Animal cruelty laws may specify a variety of actions that constitute abuse. These laws may also simply prohibit abuse and leave it to the judicial system to determine the legality of actions on a case-by-case basis. For example, it is not animal cruelty for a vet to commit euthanasia on an elderly sick cat but it would be animal cruelty to poison a dog whose barking bothered you.
Professional football star Michael Vick pleaded guilty in 2007 to a federal felony conspiracy charge for operating an interstate dog fighting business known as Bad Newz Kennels. Vick served almost two years in prison, then resumed his football career.
Neglect. Neglect of an animal, whether intentional or negligent, is another form of cruelty that all states prohibit. For example, a pet owner with ill, flea-ridden, and starving pets would be guilty of animal neglect, as would a dog owner who leaves his pet locked in his car, dehydrated and near death.
Endangered Species. Laws in many states seek to protect endangered species around the world by forbidding their importation or use for commercial purposes. The laws typically extend to body parts as well as to the animals themselves.
In 2010, the owners of The Hump restaurant in Santa Monica, California, pleaded guilty to violating the federal endangered species act for importing and serving the meat of an endangered species of whale to patrons.
Legal Authority Examples
South Carolina: Knowingly inflicting unnecessary pain or suffering on any animal constitutes a misdemeanor.
Wisconsin: Animal cruelty consists of causing unnecessary and excessive pain or suffering or unjustifiable injury or death to any living creature except a human being. Mistreatment or neglect of any animal, whether it belongs to the offender or to someone else, is a misdemeanor that can result in a fine, incarceration, and forfeiture of an animal. Intentionally mutilating, disfiguring, or killing any animal is a felony. Animal cruelty laws do not prohibit bona fide experiments carried on for scientific research or normal and accepted veterinary practices.
Related terms: mens rea; sentencing (punishment options).
The typical hierarchy of state courts consists of trial courts over which single judges preside; intermediate appellate courts made up of three-judge panels; and highest (“supreme”) courts consisting of seven or nine justices. The same hierarchy exists in state and federal courts, with the highest federal court being the United States Supreme Court. Convicted defendants have a right to review by an intermediate appellate court, provided that they comply with statutory time limits for requesting an appeal. Defendants file written “briefs” (which often are far from brief) identifying claimed legal errors that took place during a trial and arguing why those errors warrant reversal of a conviction or at least reduction of a sentence. After the government submits a responding brief, an appellate court may hear oral argument from both sides. Weeks and sometimes months later, the appellate court issues a written decision upholding or reversing a conviction.
If a state’s intermediate appellate court upholds a conviction, a defendant can appeal to the state’s highest court and then to the U.S. Supreme Court. However, the higher appellate courts (the “supreme” courts) have discretionary jurisdiction, which means that they can decide not to review a case.
Finality of Acquittals. The government cannot appeal verdicts of acquittal, whether the trial was to a judge or jury. However, if a trial judge rules that a convicted defendant is entitled to a new trial, the government can appeal the new trial order.
EXAMPLE: A jury convicts Sampson of murder. The judge grants Sampson’s motion for a new trial after deciding that a jury instruction was legally improper. The government can appeal the new trial order. If the appellate court decides that the jury instruction was proper, the appellate court can set aside the new trial order and reinstate the conviction.
Raise It or Lose It. Appellate courts typically review only legal claims that defendants make at trial. If defendants neglect to make legal claims at trial, they usually waive those claims. For example, if a defendant asks an appellate court to reverse a conviction because of the prosecutor’s unfair argument, the court will consider the point only if the defendant objected to the argument during the trial.
It’s a Fact. Appellate courts limit review to claimed legal errors. They do not reweigh trial evidence or substitute their factual beliefs for those of trial judges and jurors.
EXAMPLE: Des is convicted of joyriding based largely on Maggie’s testimony. Des’s lawyer offered evidence that Maggie had previously been convicted of perjury and is visually impaired. Des asks the appellate court to reverse the conviction on the ground that the jury had no business believing Maggie’s testimony. Because the claim asks the judges to reevaluate the evidence, the appellate court will not consider this claim.
No Harm, No Foul. Not every error at trial merits reversal. Defendants are entitled to a fair trial, not an error-free trial. (Lutwak v. U.S., U.S. Sup. Ct. (1953).) Appellate courts do not generally reverse convictions unless a legal error was likely to have contributed to a guilty verdict. Errors that do not contribute to a guilty verdict are considered “harmless.” However, errors involving constitutional rights require reversal unless appellate courts determine that they were harmless beyond a reasonable doubt.
EXAMPLE: Arker is convicted of animal cruelty. The appellate court decides that the trial judge erroneously forbade Arker from representing himself. The right of self-representation is so fundamental that this erroneous denial results in automatic reversal of the conviction.
Sentencing. Even when upholding convictions, appellate courts can review sentences. For example, an appellate court might uphold a conviction but reduce the sentence by 30 days if the trial judge neglected to credit the defendant with the month that the defendant spent in jail prior to trial.
Guilty Pleas. Defendants who plead guilty can appeal. But the grounds for appeal are generally very limited. For example, a legal resident can appeal and his conviction will be set aside if his attorney failed to advise him of the effect of a guilty plea on his immigration status. (Padilla v. Kentucky, U.S. Sup. Ct. (2010).)
Legal Authority Examples
Washington: Counsel shall be provided at state expense to an adult offender convicted of a crime who files an appeal as a matter of right.
California: A notice of appeal must be filed within 60 days following sentencing or a final order.
Related terms: Confrontation Clause; defense counsel (defense attorney); right to counsel; hearsay; motion; plea bargaining; sentencing (punishment options).
Arraignments are generally short, routine courtroom hearings in which judges formally advise defendants of the criminal charges they face and defendants enter a plea to those charges (typically, guilty or not guilty). Judges may also set bail at an arraignment, or consider a prosecutor’s or defendant’s request to revise the amount of previously set bail. At an arraignment a prosecutor may also provide a defendant’s lawyer with a copy of the written document outlining the charges, which might be called an “information,” an “indictment,” or a “complaint” according to the custom of a jurisdiction and the process leading to the issuance of charges. A prosecutor may also deliver a copy of the police report to a defendant at arraignment. Defendants have a right to be represented by counsel at arraignment, either privately retained or court-appointed.
Prearraignment Courtroom Hearings. For many defendants, an arraignment is their first appearance in a courtroom following their arrest. But before an arraignment takes place, defendants who remain in jail for as long as 48 hours following arrest may first be taken to court for a bail hearing. Magistrates rather than judges often preside over bail hearings. Defendants who are arrested without a warrant may also be taken to court prior to arraignment for a “Gerstein hearing,” so-called because its origin is in the 1975 U.S. Supreme Court case of Gerstein v. Pugh, in which the Supreme Court held that a defendant cannot be detained prior to trial, unless a court makes a timely court determination of probable cause (concluding it’s more likely than not that the defendant committed the crime). In a Gerstein hearing, a judge or magistrate determines whether probable cause for an arrest existed.
Courtroom or Train Station? Trial courtrooms are typically sedate, often inhabited only by courtroom personnel, the parties to a case, their lawyers, and a witness. Arraignment courts by contrast can be loud and hectic, not unlike a busy train station. Many cases may be scheduled for arraignment on the same day and the judge must work through all of them. Parties and lawyers filter in and out of the courtroom, often conferring on strategy or scheduling matters. Defendants who bailed out of jail prior to arraignment enter the courtroom through a public entrance, while “custodies” have their own entrance that connects a lockup to the courtroom.
The Next Steps. While the primary business of arraignments is to charge defendants with crimes and record their pleas, arraignments are often a time when prosecutors and defense lawyers establish a roadmap for the proceedings to come. For example they may:
arrange for the defendant to examine prosecution evidence and if appropriate have it tested by a forensic expert selected by the defense
set a court date for a preliminary hearing if one will take place, or
set a date for trial if no preliminary hearing will take place.
No Double Jeopardy. Judges occasionally dismiss charges at an arraignment. In the unusual situations when this occurs, typically the reason has nothing to do with a defendant’s guilt or innocence. Instead, dismissal is based on a technical prosecution error. Dismissal of a case at arraignment is rarely a final victory for a defendant because at arraignment, a defendant is not “in jeopardy” for purposes of the Double Jeopardy clause—a Constitutional provision that prohibits the government from prosecuting individuals for the same crime on more than one occasion. Typically the prosecution manages to get its ducks in order later and refile the charges.
EXAMPLE: Ed is in custody after having been arrested for assault. Ed bails out, and two weeks later appears in court to be arraigned. When Ed’s case is called, the prosecutor announces that she is not prepared to go forward with the arraignment because the charging document was prepared incorrectly. In response to the prosecutor’s request for a week’s continuance (postponement) of the arraignment so that Ed can be properly charged with assault, Ed objects and asks for the case to be dismissed. Even if the judge grants Ed’s request, Ed can still be prosecuted for assault. Ed can be rearrested on the same assault charge, and he might even have to pay the cost of a new bail bond. Ed should probably agree to the continuance.
Pleading Guilty at Arraignment. Though arraignments take place at or near the outset of criminal proceedings, plea bargaining often occurs at that time. Using an arraignment as a chance to conclude a case quickly with a plea bargain is often in everyone’s best interests. Quick disposition of cases with defendants pleading guilty or nolo contendere (a plea of “no contest”), eases the burden of heavy caseloads on judges and prosecutors, and allows them to focus on the most complex and serious cases. Quick disposition can also reduce anxiety for defendants and victims and help them move forward with their lives. Thus, prosecutorial offices may try to motivate defendants to plead guilty by establishing a policy of offering “good deals” at arraignment. Defendants and their attorneys who aren’t sure whether it makes sense to plead guilty so quickly may ask to continue an arraignment so that they can investigate the facts and consider options without losing the opportunity to plead guilty at arraignment.
Bail Challenges. Even if bail has been set at an earlier court hearing, arraignment affords defendants an additional opportunity to ask for lower bail. An argument for lowered bail is more likely to succeed if a defendant can support the request with information about changed circumstances that couldn’t have been presented earlier, such as a local employer’s willingness to give a defendant a job once the defendant is released on bail.
Legal Authority Examples
Illinois: Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. If the defendant so requests the formal charge shall be read to him before he is required to plead … Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge … When called upon to plead at arraignment the defendant shall be furnished with a copy of the charge and shall plead guilty, guilty but mentally ill, or not guilty. If the defendant stands mute a plea of not guilty shall be entered for him and the trial shall proceed on such plea.
Related terms: plea bargaining; bail; double jeopardy; jurisdiction; no contest (nolo contendere) plea.
As depicted in countless films and TV shows, the words, “You’re under arrest,” put an end to a suspect’s freedom and set in motion a panoply of procedures and rights, such as a police officer’s power to conduct a search and a suspect’s right to counsel.
Citations. Not all police officer detentions of individuals constitute arrests. Police officers often detain individuals temporarily, just long enough to issue citations. This practice is sometimes referred to as being “cited to court.” By signing citations, individuals remain free in exchange for their agreement to post bail or appear in court on or before a certain date. While police officers typically issue citations in lieu of making arrests for motor vehicle violations and minor misdemeanors, states can constitutionally authorize arrests in these situations. (Atwater v. Lago Vista, U.S. Sup. Ct. (2001).) A citation does not trigger the police officer’s ability to search the individual as if an arrest had occurred.
EXAMPLE: A police officer breaks up a minor scuffle outside a sports arena. The officer issues a citation to one of the combatants, and then proceeds to search the cited combatant. The search is illegal because the combatant was cited rather than arrested. Therefore, the officer cannot justify the search as “incident to an arrest.”
Arrest Warrants. At the time of American independence, a familiar occurrence (continued by some countries today) was the sudden disappearance of individuals whose only crime was to incur the wrath of a ruling elite. The Fourth Amendment was a response to this practice. The amendment requires police officers to have probable cause—that is, to reasonably believe that a person committed a crime—in order to make arrests and obtain warrants from judges. Arrest warrants are court orders that police officers obtain by furnishing judges with written statements signed under oath that provide sufficient information to believe that a suspect committed a crime. However, police officers can often make arrests without obtaining an arrest warrant. Whether police officers need to obtain warrants before arresting suspects depends on a variety of factors.
Misdemeanors. Police officers can arrest suspects for misdemeanor offenses without a warrant, but only if an offense is committed in an officer’s presence. Otherwise, police officers need to obtain warrants in order to arrest suspects for misdemeanors. If a police officer does not observe the misdemeanor but is informed about it, the officer can detain the suspect long enough to obtain personal contact information, ask for witness statements, and obtain a warrant by putting the statement before a judge.
Felonies. The general rule is that arrests are valid so long as arresting officers have probable cause to believe that a suspect committed a crime that constitutes a felony. In these circumstances, police officers do not need a warrant to make a valid arrest. However, unless exigent circumstances (emergencies) exist, police officers generally need to obtain an arrest warrant in order to arrest suspects in their homes. A home for this purpose can be a Beverly Hills mansion, a homeless dweller’s cardboard shack, or a temporary abode like a hotel room.
EXAMPLE: An informant tells Officer Parker that suburban housewife Nancy is dealing large quantities of illegal drugs out of her house. The informant signs an affidavit under oath providing a firsthand account of the illegal operations, including two purchases of illegal drugs. Officer Parker also prepares an affidavit describing other occasions on which the informant’s information has been accurate, as well as a stakeout during which the officer personally observed numerous individuals going in and out of Nancy’s house in a way that is consistent with purchasing drugs. Officer Parker submits the affidavits to a judge and obtains a warrant authorizing Parker to arrest Nancy in her home.
Knock-Knock, Who’s There? In police dramas, officers typically make house arrests by breaking down front doors with guns drawn. Luckily for all concerned, actual arrests are ordinarily far tamer. “Knock and Announce” laws aim to reduce the chance of violence by requiring police officers to knock on a suspect’s door and announce that they are there to make an arrest before entering a dwelling. They have to allow a suspect a reasonable time to open the door before taking more aggressive action. But exigent circumstances can eliminate this polite requirement.
EXAMPLE: In the earlier scenario, Officer Parker and others knock on Nancy’s front door and order her to submit to arrest. They hear footsteps, smashing sounds, and two or three voices yelling loudly. The circumstances suggest danger to the officers and destruction of evidence. The exigent circumstances justify the officers’ immediate entry of the residence with guns drawn.
Citizens’ Arrests. Citizens (essentially everyone other than police officers) have the power to arrest suspects who commit crimes in their presence. Citizens who make arrests normally notify the police, who complete the arrest process. So long as they have probable cause, police officers are generally immune from civil lawsuits if they arrest suspected felons who turn out to be innocent. Citizens have to be more careful. If they arrest a person who turns out to be innocent, laws do not protect them from civil lawsuits. For example, if a security guard detains a suspect at a store and then calls the police and requests that the suspect be arrested, the suspect can sue the security guard if the arrest is a mistake.
Legal Authority Examples
California: A peace officer may arrest a person without a warrant whenever the officer has probable cause to believe that the person has committed a public offense in the officer’s presence, or has committed a felony, although not in the officer’s presence.
Federal: A police officer can break into a house to execute a warrant if, after notice of his authority and purpose, he is refused admittance.
Washington State: An officer in whose presence a traffic infraction was committed may stop, detain, arrest, or issue a notice of traffic infraction to the driver who is believed to have committed the infraction.
Text of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Related terms: hierarchy of criminal offenses; probable cause; search and seizure; knock and announce rule (aka knock and notice).
Arson consists of setting fire to someone else’s property. In most arson situations, the property set on fire consists of a building, which might be a residence or a commercial structure. However, a wrongdoer who ignites a farmer’s haystack or forest land that belongs to the public also commits arson. Statutes typically classify arson as a felony rather than a misdemeanor, because aside from the value of the property that is burned, fires always have the potential to cause injuries or death and to spread to other properties.
Burning One’s Own Property. In some circumstances, setting fire to one’s own property can constitute arson—the typical example, being a property owner seeking to obtain money under a fire insurance policy. In such cases, the property owner may be guilty of arson and insurance fraud.
Felony Murder Rule. Arson is an inherently dangerous crime. An arsonist who starts a fire that causes a person’s death—even if the death was accidental—can be found guilty of murder. This is because of a rule (the “felony murder rule”) that makes a perpetrator guilty of murder if someone is killed during the commission of a dangerous felony.
EXAMPLE: Seeking to protest government land-use policies that she disagrees with, Meg sets fire to grassland in a national park. The fire spreads far more than Meg anticipated and kills a homeless man who was sleeping several hundred yards away from where Meg started the fire. Though Meg was unaware of the man’s presence and she certainly had no intention of killing him, Meg is guilty of murder because the man’s death was the result of the inherently dangerous felony that she committed.
Reckless Arson. Although arson charges are typically based on intentionally set fires, reckless behavior that leads to the destruction of property by fire can also constitute arson. For example, campers who disregard signs prohibiting open fires by starting an open fire in vulnerable park land may be guilty of arson.
Arson or Accident? Even if an intentionally (but not recklessly) set fire destroys another’s property, the person who set the fire is not an arsonist if the destruction was accidental. For example, according to myth the Great Chicago Fire of 1871 was started when Mrs. O’Leary’s cow kicked over a lantern. Had the story been true, Mrs. O’Leary would not have been guilty of arson. She did not intend to start a fire and probably would not have been judged reckless for failing to prevent her cow from kicking over the lantern.
A problem that frequently arises is that a quick and easy determination of whether a fire is due to accident or arson is not always possible. If fire and police officials are uncertain about a fire’s origin they may regard it as a “suspicious fire” and investigate. Whether arson charges result and can be proven in court may then depend largely on the work of forensic arson experts. Unfortunately, arson experts are no less fallible than other types of forensic experts.
In 2003 an Ohio woman, Rose Roseborough, was convicted of murder and sentenced to life in prison based largely on the testimony of an arson expert that she had intentionally set the fire that resulted in the deaths of her 11-month-old twin daughters. The expert based his conclusion on evidence that Roseborough’s face was covered with “large particle soot,” which the expert testified is produced only in the very early stages of a fire. The expert’s finding contradicted Roseborough’s testimony that she ran into the house to try to rescue her daughters only after the fire was well underway. However, at a court hearing that was held some years after Roseborough began serving her sentence, new defense attorneys presented an expert who convinced the judge that the state’s expert testimony had been false, and that large particle soot often forms at the end stages of a fire. In 2009, the judge set aside the conviction and ordered a new trial. (You can read the opinion, at www.truthinjustice.org/Roseborough.pdf.)
In the United States, fire officials regard many thousands of fires each year as suspicious and requiring further investigation by a forensic arson expert.
Vigilante Justice and the Use of Arson. Quite often, arson is a weapon of choice for those who resort to vigilante justice—when citizens punish others without resorting to the legal system. In recent years, for example, the use of arson has increased against registered sex offenders. A classic example of vigilante arson can be seen in the 1934 film, Fury. In that film, a stranger in a small town is mistaken for a kidnapper and put in jail. An angry mob burns the jail to the ground. The movie’s courageous prosecutor charges about 20 of the town’s leading citizens with murder. Made during the Great Depression, the film warned about the dangers of mob rule. (By the way, the film also includes a brilliant courtroom ruse, and an early example of newsreel footage used as evidence in a courtroom.)
Legal Authority Examples
California: Arson consists of willfully setting fire to any structure, forest land, or property, or aiding in or arranging for the burning of a structure, forest land, or property. Arson is a felony that is punished more severely if a fire results in great bodily injury to a victim or if inhabited property is burned. The burning of one’s own personal property is not arson unless it is done with the intent to defraud or results in injury to a person or damage to other property.
assault and battery
Assault consists of intentionally causing another person to fear being struck. The striking itself constitutes battery. Historically, assault and battery were separate crimes, but many modern statutes do not bother to distinguish between the two crimes, as evidenced by the fact that the phrase “assault and battery” has become as common as “salt and pepper.” These statutes often refer to crimes of actual physical violence simply as assaults.
Traditionally, the definition of assault recognizes that placing another in fear of imminent bodily harm is itself an act deserving of punishment, whether or not a victim is physically harmed. If the victim is not placed in imminent fear of injury, there is no assault.
EXAMPLE: Snider is walking down a city street carrying a golf club, a short distance behind Mantle. As Snider gets closer to Mantle, he lifts up the club and waves it menacingly in Mantle’s direction. Mantle, however, is unaware of Snider’s presence. Snider has not committed an assault because Mantle was unaware of Snider’s presence and activity and was not afraid of Snider striking him. If, on the other hand, Snider strikes Mantle with the club, Snider would be punished only for the battery, the more serious offense.
Simple and Aggravated Assault. The criminal laws of many states classify assaults as either simple or aggravated, according to the gravity of the harm that occurs or is likely to occur if the assaulter follows through and harms the victim. Aggravated assault is a felony that may occur when an assault is committed with a weapon or with the intent to perpetrate a more serious crime. An assault may also be defined as aggravated if it occurs in the course of a relationship that the legal system regards as worthy of special protection—for example, a husband and wife, cohabitants of a home, or a caregiver and elderly patient. In the absence of factors such as these, the crime is simple assault, a misdemeanor.
Degrees of Assault. As an alternative to classifying assaults as either simple or aggravated, some states recognize the different levels of harm that assaults can cause by classifying them as first (most serious), second, or third degree assaults.
Sticks and Stones. Words alone don’t give rise to assault charges. The general policy against punishing people for “naked threats” recognizes that people often make threats in the heat of the moment that they will never carry out—for example, a bar patron telling another, “I’d like to knock your block off.” However, threatening to commit a crime that would seriously harm someone is its own offense, often classified as a “terrorist threat.” An example is one person telling another, “I’m going to shoot you.”
See terrorist threats.
Legal Authority Examples
Mississippi: Assault consists of attempting to cause or purposely, knowingly or recklessly causing bodily injury to another; or of negligently causing bodily injury with a deadly weapon or other means likely to produce death or serious bodily harm; or of attempting by physical menace to put another in fear of imminent serious bodily harm. Conviction of assault is punishable by a fine of not more than $500 or by imprisonment in the county jail for not more than six months, or both.
Federal Law: Under Section 117 of Title 7 of the United States Code, domestic assault is “an assault committed by a current or former spouse, parent, child, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, child, or guardian, or by a person similarly situated to a spouse, parent, child, or guardian of the victim.”
For information on how each state defines and punishes assault and battery crimes, go to www.nolo.com/assault.
Related terms: assault with a deadly weapon; domestic violence.
assault with a deadly weapon
An assault with a deadly weapon occurs when an attacker accomplishes a physical attack with a dangerous physical object. Since the use of a dangerous object creates a risk that a victim will suffer severe physical injury or death, all states classify assault with a deadly weapon as a felony. (Judges and lawyers often refer to the crime as “ADW,” partly because specialized occupations often develop shorthand jargon and partly because mysterious abbreviations often seem more intimidating to legal outsiders.) “Deadly weapon” generally refers to a wide range of objects that can inflict mortal or great bodily harm—for example a car or a golf club.
“You Missed Me, You Missed Me!” The crime of assault, whether or not accomplished with the use of a deadly weapon, does not require that a victim suffer actual injury. Attackers commit an assault when they intentionally lead a victim to reasonably fear immediate physical harm. The use of a dangerous object rather than the infliction of actual harm elevates simple assault to assault with a deadly weapon.
Related terms: assault and battery.
Attempts consist of intentional (but unsuccessful) efforts to commit an act that constitutes a crime. People are guilty of attempt only if they take concrete steps toward committing a crime. Thinking about committing a crime, or even planning to commit a crime, does not constitute an attempt.
EXAMPLE: Angry that too many urban dwellers are using a public bridge to access a remote wilderness area, Sam plans to blow up the bridge. Sam visits the website of the Acme Explosives Co. for information on how to build a bomb. At this point Sam is not guilty of attempting to destroy public property because his actions do not amount to substantial concrete steps aimed at accomplishing his plan. However, if Sam assembles the explosives needed to build a bomb and makes a drawing of the bridge that indicates the best location for placement of the bomb, a judge or jury may legitimately convict Sam of attempting to destroy public property, because he took substantial concrete steps toward trying to accomplish his goal.
Justifying Punishment for Attempts. Convictions for attempting to commit a crime typically involve situations in which no actual harm ensues. For example, if we analogize to the Roadrunner cartoons, Wile E. Coyote may be convicted of attempted murder for trying to kill Roadrunner, even if Roadrunner suffered no harm and Roadrunner never knew that Wile E. was trying to blow him up. Nevertheless, it is fair to punish Wile E. because he acted with criminal mens rea (state of mind). Another justification for punishment is that Wile E. may act in accordance with the familiar saying, “If at first you don’t succeed, try, try again.” Thus, criminalizing attempts protects would-be victims against future harms.
To Dream the Impossible Dream ( … and to Attempt the Impossible Crime). A person may attempt to commit a crime that cannot possibly be committed. A crime is said to be legally impossible when the acts, regardless of the harm an actor intended to cause, don’t constitute a crime. A crime is factually impossible when a person tries to commit a crime but cannot complete it because of some unknown circumstance. Many states’ laws reject this distinction and provide that neither kind of “impossibility” is a defense.
EXAMPLE: Believing that too many homeless people are destroying the property values in his neighborhood, Joe shoots a man lying in a doorway and covered with blankets. What Joe did not know was that the man had suffered a fatal heart attack and died earlier. Since dead people cannot be homicide victims, Joe cannot be convicted of killing the vagrant. But, in most jurisdictions he can be convicted of attempted murder even though it was legally impossible to murder the already-dead homeless man. If the man lying in the doorway had been alive at the time Joe pulled the trigger, but the gun didn’t fire because Joe forgot to load it, murder would have been factually impossible—you can’t shoot someone to death with an unloaded gun. Nevertheless, Joe would have been guilty of attempted murder in this situation too, because he tried to kill the man.
Abandonment. People can sometimes escape punishment for attempt by voluntarily and completely abandoning planned crimes. But if they have already caused too much harm or are coerced into abandonment, they remain guilty of attempt.
EXAMPLE: Fred breaks into a college dorm room and shoves his ex-girlfriend, Ethel, onto a sofa with the intent to rape her. When Ethel cries out Fred apologizes repeatedly and walks away from her. Fred has taken substantial concrete steps toward committing a rape. But if a judge or jury decides that Fred voluntary abandoned his planned course of action without substantially harming Ethel, Fred may be convicted of assault and battery but not attempted rape.
If however, Fred shoves Ethel onto the sofa, Ethel cries out, Fred strikes her in the face repeatedly, and then Fred runs away when he hears people running toward the door, Fred is probably guilty of attempted rape because he inflicted serious harm on Ethel before escaping. A second reason he may be guilty is that he did not voluntarily abandon his plan to rape Ethel. Instead, Fred fled to avoid capture.
Do the Crime, Maybe Do Half the Time. The punishment for attempts varies from one state to another and according to the crime that a person is convicted of attempting to commit. Some states prescribe the same punishment for attempts as for completed crimes, on the theory that assailants should be punished for the harms they intend to cause. Other states offer leniency for all attempt convictions, often providing for a maximum penalty for an attempt that is half the penalty for a completed crime.
Legal Authority Examples
720 Illinois Compiled Statutes § 8-4: People commit an attempt when, with intent to commit a specific offense, they do any act that constitutes a substantial step toward the commission of that offense. The fine or imprisonment for an attempt may not exceed the maximum provided for the offense attempted. It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.
Minnesota Statute 609.17: It is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith and abandoned the intention to commit the crime.
Related terms: defenses; impossibility; mens rea; sentencing (punishment options).
Attorney-client privilege refers to the right of a client to prevent the disclosure or seizure of certain information provided to an attorney.
Background. The criminal justice system seeks to encourage clients to be open and honest with their lawyers. Thus, laws in all jurisdictions create a privilege for private communications between lawyers and clients. The privilege extends to all forms of communications, including oral, written, and electronic. Lawyers cannot disclose the contents of privileged communications without a client’s consent.
EXAMPLE: Bernie tells his lawyer in private, “They’ve got me. I did sucker all those people into investing in my phony scheme.” At Bernie’s criminal fraud trial, the prosecutor cannot call the lawyer as a witness to testify to Bernie’s admission of guilt. If Bernie’s lawyer responds to Bernie’s admission of guilt by telling Bernie, “The more money you can return to the defrauded investors, the lighter your sentence will be,” that statement is also privileged because the privilege “works both ways.”
Privacy Practice. The privilege exists only if circumstances indicate that a client reasonably intended a communication to be private. So, if in the previous example involving Bernie and his attorney, the statements are made in a crowded restaurant and can be overheard, the client gives up the right to claim that the statement was confidential. A prosecutor could call the waiter and the patrons as witnesses to testify to the client’s admission of guilt. This “public” exception does not apply to surreptitious listening—for example, someone using listening devices or placing an ear to a closed door. In that situation the eavesdropper cannot testify as to what the client or attorney said.
Take It From Me. Clients cannot hide evidence or contraband from the police by giving it to their lawyers.
EXAMPLE: In the film The Letter (1937), Leslie Crosbie is charged with murdering an intruder, she claims was trying to attack her. Prior to the killing, Leslie had written an incriminating letter threatening to kill the victim if he broke off their love affair. Leslie asks the lawyer to destroy the letter. The lawyer has to turn the letter over to the police.
Although attorneys cannot hide or destroy evidence, they do not have to disclose information about the existence of evidence provided in confidence. For example, if a client privately reveals to his lawyer the location where he hid the loot and the gun that he used in a robbery, the communication is privileged and the lawyer cannot tell the police where the loot and gun are. However, the lawyer cannot take the items or change their location.
Future Crimes. A lawyer’s role is to protect a client’s legal rights and interests, not to help the client commit crimes. The attorney-client privilege does not extend to a client’s communications about future crimes.
EXAMPLE: In the film A Time to Kill (1996), Carl Lee Hailey tells his lawyer Jake Brigance of his intent to kill the two men who brutally raped Carl Lee’s daughter. The communication is not privileged. Jake has a duty to report Carl Lee’s threat to the police. At Carl Lee’s trial for murdering his daughter’s attackers, the prosecutor could call Jake as a witness to testify to Carl Lee’s statement.
Legal Authority Examples
Massachusetts: The attorney-client privilege extends to all communications between attorneys and clients pertaining to advice about legal matters. The privilege applies not just to existing clients but also to prospective clients with whom a formal attorney-client relationship is never established.
California: The attorney-client privilege is inapplicable if a client seeks the services of a lawyer for help in committing a crime or fraud.
Related terms: defense counsel (defense attorney); privileges.
Police officers who have probable cause to believe that a car contains contraband or evidence of a crime rarely need to obtain a search warrant before searching it. Judges usually offer two justifications for warrantless car searches. One is that cars’ mobility may result in the destruction of evidence before police officers can obtain a warrant. The other is that people should not expect much privacy when they use vehicles on public roads.
Traffic Ticket Stops. Most drivers know from experience that when issuing traffic tickets, police officers usually allow them to remain in their cars and proceed on their way. However, police officers can arrest drivers for violating traffic rules.
Texas mother Gail Atwater drove with her two young children in the back seat of her pickup truck. Police officer Turek pulled her over for violating the state’s seat belt law because neither Atwater nor her children were wearing seat belts. Instead of issuing a citation to Atwater, Turek arrested her and took her to jail. The U.S. Supreme Court upheld the validity of a state statute that authorized Turek to arrest Atwater for the traffic violation. (Atwater v. Lago Vista, U.S. Sup. Ct. (2001).)
Police officers concerned for their safety can also order drivers and other occupants to get out of a car while they issue a ticket. (Virginia v. Moore, U.S. Sup. Ct. (2009).) If officers reasonably believe that any of a car’s occupants might be armed, officers can frisk them for weapons. However, traffic violations do not give police officers the right to search a car’s occupants or the car itself unless the officers have probable cause to believe that they will find contraband or evidence of a crime.
EXAMPLE: Officer Smith pulled over a car for speeding. Smith ordered the four youthful occupants out of the car and testified that as a matter of routine he patted them down for weapons. In the course of frisking one of the occupants Smith felt a hard object in his jacket pocket. Thinking it might be a weapon, Smith pulled out what turned out to be a packet of illegal drugs. The drugs are not admissible in evidence. The frisk was improper because Smith had no reasonable basis for suspecting that any of the car’s occupants were armed. The outcome would be different if Officer Smith testified that he patted down the car’s occupants for weapons because he had received a police radio call informing him that four youths had just robbed a convenience store and escaped in a car similar to the one that Smith had pulled over. In that case, the frisk is valid because Smith had reason to believe that the occupants might be carrying weapons. If Smith felt an object in the jacket pocket of one of the occupants that he reasonably believed was a weapon but turned out to be a packet of illegal drugs, the drugs are admissible in evidence.
Probable Cause Stops. So long as they act based on probable cause, police officers can generally conduct warrantless searches of drivers, passengers, car interiors, and objects they find inside cars. Searches should be reasonably calculated to uncover only those items that police officers have probable cause to look for. Here are two examples:
Probable Cause: DUI Leads to Drug Search. Officer Smith pulled Webster over in order to issue a ticket for a left-turn violation. Smith testified that he observed symptoms suggesting that Webster might be under the influence of alcohol or drugs. Smith also testified that he noticed when speaking to Webster that the car’s glove box was open and that there was an empty beer can on the floor directly under it. Webster’s poor performance of field sobriety tests confirmed Smith’s suspicions of drunk driving.
We hope you enjoyed this material. The rest of the book is available for purchase.