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The Crime Junkie's Guide To Criminal Law - From 'Law & Order' To Laci Peterson (2008)
The Crime Junkie's Guide To Criminal Law - From 'Law & Order' To Laci Peterson (2008)
to Criminal Law
The Crime Junkie’s Guide
to Criminal Law
Jim Silver
Library of Congress Cataloging-in-Publication Data
Preface ix
Acknowledgments xi
1. Setting the Stage 1
2. Recipe for Crime 9
3. Homicide 18
4. Murder 21
5. Voluntary Manslaughter 30
6. Involuntary Manslaughter 35
7. Rape 40
8. Assault 46
9. Kidnapping 53
10. Acquisition Offenses 56
11. Burglary 64
12. Arson 68
13. Perjury 71
14. Solicitation 73
15. Conspiracy 76
viii Contents
16. Attempt 86
17. Accomplice Liability 92
18. Justification 98
19. Necessity and Duress 108
20. Entrapment 112
21. Intoxication 115
22. Insanity 118
23. The Exclusionary Rule 124
24. The Fourth Amendment: Arrests 130
25. The Fourth Amendment: Search and Seizure 136
26. Self-Incrimination 147
27. Pretrial Proceedings 157
28. Trial 163
29. Right to Counsel 170
30. Guilty Pleas 174
31. Sentencing 180
32. Double Jeopardy 185
Index 189
Preface
Let’s face it, as long as it’s not happening to you, crime is pretty entertain-
ing. Every offense, from shoplifting to murder, combines danger and ex-
citement with emotions like greed, anger, and the urge to make very close
friends in prison. The dastardly deeds are often outrageous and some-
times hair-raising, but we can’t seem to rip our eyes from the wreckage
criminals make of their own lives and the lives of their victims. The dark
side of human behavior both repulses and fascinates us.
Which is why stories about crime are all around us. From Dragnet to
Law & Order and CSI, some of the most popular shows in television his-
tory have been and are about crime. Of course, it is not just fictional crime
that interests us; we love to have actual cases brought into our living
rooms courtesy of Court TV and documentary shows like A&E’s City Con-
fidential and Cold Case Files. News shows and magazines fairly drip with
salacious details about the infamous evildoings of the moment.
However, unless you’re a lawyer, you could probably use a little help
making sense of the crime stories you see and read about every day. That’s
what this book is for—to give you a better understanding of criminal law.
Maybe you know the Miranda warnings by heart, but do you know the
difference between voluntary and involuntary manslaughter? Whether
the police always need a warrant to search a private residence? What a fair
trial really means? This book gives you the answers to those and many
other questions. And, since there’s no law against learning being fun,
x Preface
The Crime Junkie’s Guide illustrates key points with details from real-life
trials and plots from your favorite shows.
While laws vary from state to state and no book could cover all the pos-
sible permutations, this book gives you the tools to evaluate relevant is-
sues in real and fictional criminal cases. In other words, you will get the
benefit of going to law school without the boring lectures. As an added
bonus, you won’t owe $100,000 in loans at the end of the book—although,
feel free to send me that amount if you would like.
Acknowledgments
Before getting to the juicy issues like murder and search warrants, it will
be worthwhile to briefly step back for a broader view. It’s always easier to
see how the pieces fit together once you know the basic framework of the
structure. And that’s what criminal law is, a construction of rules based on
tradition, reason, and practicality that helps define our social conduct and
how far the government can go in regulating that conduct.
In this chapter we’ll look at some of the basic principles of our system
of criminal justice—how criminal law differs from other areas of the law,
who is responsible for making criminal laws, etc. In the next chapter, we’ll
explore the common elements found in every crime and what they mean.
Then we’ll get right into knocking people off.
The first is that crime is a public matter. The state (meaning also the federal
government) is responsible for protecting the public good, so actions that the
state decides harm the public good are defined as crimes. When Mike Tyson
was charged with rape in 1991, it was because his attack on an eighteen-year-
old Miss Black America Pageant contestant named Desiree Washington in an
Indianapolis hotel room was an attack on the public order.
The state of Indiana, like all states, seeks to protect its citizens from
sexual assaults by having a statute on its books making these incidents
criminal. The matter is thereby transformed from a situation where a young
woman seeks to protect herself against a man who has wronged her, to
one where the state seeks justice not only on her behalf but also on behalf
of the public peace and tranquility.
The second and related way in which criminal law differs from civil
law is that it involves an aspect of moral condemnation for bad behavior.
When your neighbor sues her contractor, she is trying to recover money to
compensate for damage done to her house and her peace of mind. A dispute
over the installation of kitchen cabinets is not something that necessarily
affects anyone else. A criminal act is a violation of a communal sense of
decency. The state, on behalf of all its citizens, is charged not only with
restoring order by removing wrongdoers from society (when appropriate)
but also with expressing our shared outrage at the criminal’s behavior.
Criminal cases involve an element of punishment and condemnation that
goes beyond attempting to compensate someone for economic loss and
hurt feelings.
Since crime is a public concern, the state appears in court in the person
of the public prosecutor, usually called a district attorney or a state’s at-
torney. The district attorney (or state’s attorney) is not working for the
victim in the case. It is the state’s case, and the victim is essentially another
witness in the state’s prosecution of the defendant for harm to the public
welfare. Of course, the victim and his feelings will be considered by the
state, but the victim doesn’t get to call the shots. In fact, the victim doesn’t
even have to be a witness in the trial. Which stands to reason; it would be
messy to keep a murder victim in court during a trial. In a 2006 episode of
CSI: Miami called “Double Jeopardy” (#90), the DA prosecuted a husband
for the murder of his wife even though the wife’s body hadn’t been found.
As you recall, the DA still had to prove by inference that the wife was dead
(she hadn’t been seen in months, her credit card hadn’t been used during
that time, etc.).
The opposite situation sometimes occurs where the victim is alive and
available for court, but does not want the defendant prosecuted. In a Law &
Order: SVU episode entitled “Limitations” (#14), the squad is desperately
Setting the Stage 3
The Players
You should also keep in mind the different parts in the system. Recall the
famous voice-over at the start of Law & Order: “In the criminal justice
system, the people are represented by two separate yet equally important
groups, the police who investigate the crimes and the district attorneys
who prosecute the offenders. These are their stories.” Although we may
have a tendency to think of them as being one big, happy crime-fighting
family, they really are separate organizations with differing priorities,
budgets, operating systems, and hierarchies. Throw in the court system,
which is separate from both the police and the district attorney, and you
can imagine how the various players might frustrate one another.
The police might arrest someone on a felony offense, the district attor-
ney’s office could decide to charge it as a misdemeanor, and the judge
might press the district attorney’s office to drop the case entirely to relieve
pressure on an overburdened trial schedule. Of course, there are the crim-
inal defense lawyers who advocate for their clients and are also separate
players in the system. If you want to think of this as a criminal justice
“family,” you’d better think of a dysfunctional one.
4 The Crime Junkie’s Guide to Criminal Law
Both federal and state criminal laws have to comply with the U.S. Con-
stitution. Obviously, the federal government is governed by the Constitu-
tion and the Bill of Rights, but the idea that states’ criminal justice systems
are also governed by the Constitution is relatively new. Starting roughly in
the 1960s, the U.S. Supreme Court began relying on language in the Four-
teenth Amendment to apply certain parts of the Bill of Rights to the states.
This is known in legal circles as “selective incorporation.”
In addition, states have their own constitutions, and the general prin-
ciple is that while state constitutions cannot limit federal constitutional
rights, they can expand them. A state constitution might provide a defendant
more protection from searches and seizures than the Fourth Amendment
provides. Suffice it to say then that state courts are still generally quite
active in the area of criminal procedure.
One last general issue. Most states classify as felonies any crime pun-
ishable by death or imprisonment of a year or more. This includes all the
serious crimes like murder, rape, burglary, robbery, mayhem, and other
offenses that vary by state. Any crime that is punishable by less than a year
in prison or by fine only is a misdemeanor. Note that it does not matter
what the actual sentence is; it’s what the punishment could be that defines
the crime as a felony or misdemeanor. If someone is charged with felony
robbery but for some particular reasons (first offense, sympathetic life
story, lenient judge) is sentenced to only nine months in prison, the con-
viction is still a felony conviction since the possible punishment (stated in
the applicable statute) is more than one year in prison.
Burden of Persuasion
As you undoubtedly know from all the hours you’ve logged watching
Cops, all defendants are considered innocent until proven guilty. A funda-
mental tenet of our trial system is that the prosecution must prove that the
defendant is guilty beyond a reasonable doubt of each and every element
of the crime charged.
This means that the prosecution has to produce evidence that the de-
fendant meets each element of the crime. This evidence could be in the
form of eyewitness testimony, the results of scientific tests, a confession,
circumstantial evidence, etc. Importantly, the defendant is not required to
do anything to prove his innocence—not produce a single sliver of evi-
dence to contradict the prosecution’s case, not cross-examine the prosecu-
tion witnesses. A defendant and his lawyer could sit mute during a trial
and the jury could return a “not guilty” verdict (of course, this is only
theoretical—a lawyer could never remain silent for that long).
Setting the Stage 7
Legal Briefs
Common law—English judge-made law that was later adopted by
individual states.
8 The Crime Junkie’s Guide to Criminal Law
It’s shortly after Christmas, 2002, and you pick your newspaper up off the
front stoop. Looking below the fold, you notice a story about a young,
pregnant woman who has gone missing in California. The woman, eight
months pregnant with her first child, was last seen on the morning of
Christmas Eve, when her husband left their house to go on a fishing trip
some eighty miles away. The husband says that his wife’s plans were to
take their dog for a walk in the park and then go grocery shopping. He
says that she was not at home when he returned from his trip. He reported
her missing that night, and a $500,000 reward was posted for information
leading to the return of the mother-to-be.
Within a week of the woman’s disappearance, the story is being followed
by every major news organization in the country. You can’t turn on the
television or pick up a paper without seeing a picture of the young mother.
The police are convinced that they are dealing with foul play. By mid-
January the volunteer search center has closed. On January 30, a woman
admits to having had an affair with the husband and acknowledges that
she has been working with the police, even tape-recording conversations
with the husband.
In mid-April, after the bodies of the wife and unborn infant boy wash
ashore in the San Francisco Bay, Scott Peterson is arrested for the murder
of Laci Peterson and Connor Peterson, and one of the most celebrated and
heavily covered criminal trials in American history is set to begin. The trial
started in June 2004, and in November 2004, Peterson was convicted of
killing both Laci and Connor.
Unbelievably, this heinous crime of murdering a young mother and
her unborn baby shares certain characteristics with every other crime
10 The Crime Junkie’s Guide to Criminal Law
VICTIMS
Physical Act
American criminal law punishes only acts and in some cases failure to act;
it does not punish mere thoughts—undoubtedly a good thing for every
employee who has ever thought about swiping a little from the till and
every neighbor who has wanted to slug the guy running his leaf-blower at
dawn. For all the times you’ve heard the phrase “thought police” thrown
around in political discourse, the real thing doesn’t exist. Obviously, we
can’t read people’s minds. If we could, we’d still have the problem of dis-
tinguishing between thoughts that would lead to societal harm (and
should be punishable) and thoughts that are harmless, fleeting notions.
Even though there was evidence that Scott Peterson told his mistress,
Amber Frey, that Laci had died the year before she actually went missing,
he was not charged with wishing that Laci were dead or pretending that she
was dead; he was charged with actually doing something to end Laci and
Connor’s lives.
CRIMINAL SPEECH
The basic criminal law definition is that an act is some “bodily movement
made voluntarily.” It’s helpful to consider separately the two parts of this
definition. The bodily movement part is pretty straightforward—it means
Recipe for Crime 11
things like lighting the match to the gasoline-soaked rags in the basement,
pulling the trigger.
STATUS CRIMES
The Supreme Court has held that making a crime out of a “status”
instead of a physical act is unconstitutional: A state cannot make it a
crime to be an “addict” or an “alcoholic.” The reasoning is that just
because someone has a particular character trait does not necessarily
mean that she will somehow disrupt the public order. On the other
hand, states are free to define acts such as public drunkenness as
crimes, even though the act is directly related to the person’s status.
Some crimes state specifically the act the defendant must have commit-
ted (burglary requires “breaking and entering”), but homicide statutes are
different. They don’t designate the exact act the defendant must have done
that results in the killing. Thus, pretty much any physical movement that
causes an unlawful taking of life can be a homicide. Interestingly, in the
Peterson case, the prosecution was unable to pinpoint the cause of Laci’s
death (the body was badly decomposed by the time it was recovered).
The theory the prosecution presented to the jury was that Scott either
strangled or smothered Laci before dumping her body. The jury believed
one of the two.
The “voluntary” part of the act means that the bodily movement must
be a conscious and willful one. Acts done while the person is unconscious
or even asleep are usually not criminal. (Being unconscious or asleep is
not the same thing as having an altered state of consciousness, as with
mental illness or some type of intoxication. The law controlling claims of
insanity and intoxication is covered in later chapters.)
You may recall the 1997 case of an Arizona man, Scott Falater, that re-
ceived quite a bit of media attention including a special program on Court
TV. Falater stabbed his wife forty-four times with a hunting knife, dragged
her outside where he held her head underwater in their pool, hid the knife,
and went to bed. A neighbor saw the attack by the pool and called the
police. The police arrived to find Falater with bandages on his hands and
blood on his neck.
Falater claimed to have no knowledge of the vicious murder and claims
that he must have been sleepwalking at the time. His long history of sleep-
walking was confirmed by friends and family, and he argued at trial that
he was not criminally responsible because he had not acted consciously.
12 The Crime Junkie’s Guide to Criminal Law
The jury did not believe his story and found him guilty of first-degree
murder.
Sometimes it’s not what you do; it’s what you didn’t do that lands you
in trouble. Although this seems counterintuitive because we’ve been talk-
ing about acts, in certain circumstances a person may be found criminally
liable for doing nothing (failing to act). All those times when you were a
kid and you were punished by your parents despite protesting “I didn’t
do anything!” may not have been unfair after all. A person can be found
guilty of failing to act where:
Mental State
The second piece of every crime is the “mental element.” To be considered
a crime, a person must do some physical act (or, in some cases, not do
some physical act) with a particular state of mind. The principle is that society
should only punish those who have a “guilty mind” because they are more
blameworthy than those who accidentally do wrong. Some would also
argue that society gets more bang for its law enforcement buck by focus-
ing on those who knowingly offend, i.e., the most dangerous and likely to
reoffend (how can we discourage those who never intended to cause any
harm?) This “mental element” is often a crucial area of dispute in a trial.
Recipe for Crime 13
Even if the prosecution can prove that the defendant did a certain act, the
defendant can’t be convicted unless there is also proof that she had the
requisite state of mind while doing that act.
Although there are an infinite number of attitudes and motivations that
a person can feel in a day, criminal law focuses on a few mental states. The
traditional criminal states of mind are general intent, specific intent, and
criminal negligence. General intent simply means the intent to commit the
act that constitutes the crime. This is the “default” mental state for any
crime that requires more than criminal negligence but which does not re-
quire specific intent. General intent does not need to be expressly shown,
but can be inferred from the doing of the act; in other words, we presume
that people intend the acts that they voluntarily do. Some statutes may use
words such as “willfully” or “deliberately,” which mean the same thing as
general intent.
In specific intent crimes, the statute will require not only the doing of an
act, but also the doing of it with a specific intent. Specific intent crimes are
“general intent crimes plus another intent.” Unlike with general intent,
this other specific intent cannot be inferred and must be proven. Specific
intent crimes are things like burglary (must show intent to commit a fel-
ony in the dwelling), solicitation (must show intent to have the person
commit the crime), and robbery (must show intent to permanently de-
prive victim of property).
MOTIVE
This may be splitting hairs, but motive is not the same thing as
intent. Motive is the reason a crime was committed (the defendant
hated the victim; the defendant needed money to feed a gambling
addiction). For all the talk you hear from TV cops and DAs about
“establishing the motive” for a crime, the only thing the prosecution
legally has to show is that the defendant did the prohibited act with
the intent required by the statute. While a showing of motive may be
a reliable indicator that the defendant committed the crime, the law
does not require the prosecution to show any motive at all on the
defendant’s part in order to prove guilt beyond a reasonable doubt.
Whether the jury will convict without having a story as to why the
crime occurred is an entirely separate question.
in the civil law context. To find that an act rises to the level of a crime, the
prosecution must show more than that the defendant failed to exercise
due care; the defendant’s action must have involved a high degree of
unreasonableness.
There are actually some crimes that don’t have any mental state require-
ment at all. These are referred to as strict liability offenses and generally
mean that there is no state of mind with regard to certain factors constitut-
ing the crime. They are usually part of some government regulatory scheme,
although the one people are most familiar with is statutory rape.
A final consideration for “mental state” requirements is something called
“transferred intent.” This is what is known in the law profession as a “legal
fiction” (insert your own joke here) and it comes into play in situations
where the defendant doesn’t accomplish exactly what he set out to do but
nevertheless causes harm. Here’s a typical transferred intent scenario,
courtesy of a 2007 episode of Law & Order (#384):
A near riot breaks out at Grammercy University when controversial
conservative political pundit Judith Barlow speaks to a group of students.
The give-and-take between Barlow and students in the audience becomes
increasingly volatile until some of the students try to rush the stage. In the
melee, a gunshot rings out and student Jason Miles falls dead, shot through
the heart by Malcolm Yates, a graduate student at Grammercy.
Here’s the twist—Yates is a scientific researcher with Parkinson’s disease
and Barlow happens to be a prominent critic of stem-cell research, which
may hold promise in finding a cure for Parkinsons. Yates did in fact fire
the gun, but he intended to kill Barlow that evening, not his friend and fel-
low protester Jason Miles. Therein the conundrum: If Yates did not intend
to shoot Miles at all, is Yates guilty of murder? In our criminal justice sys-
tem, the answer is “yes.” The law rationalize that the defendant’s mental
state with regard to his intended victim “transfers” to the actual victim. As
Jack McCoy puts it to Yates during a plea bargaining session in the standard
Law & Order conference room sequence—“I’m sure your lawyer can explain
to you, Mr. Yates, that in criminal law, intent follows the bullet.”
adults are in the basement engaged in religious education and are killed in
the blast. The bombers would have acted recklessly with regard to these
deaths since they were aware of a substantial risk that their conduct would
result in some deaths.
Finally, suppose that the bombers set the bomb to go off in the early
morning hours, believing that no one would be in the church at all, but
that people are still killed. Assume also that the church was such an active
establishment that any reasonable person would have been aware that the
church might be in use at any hour of the day or night. The bombers would
have acted negligently with regard to the people killed in the early morn-
ing blast.
Legal Briefs
Elements of a crime—The physical act and mental state of the defendant
that must be proven to convict.
General intent—The intent to commit the act that constitutes the crime;
can be inferred from just the doing of the act.
Specific intent—The intent to do the act that constitutes the crime plus
another particular purpose to the act (for larceny, must show intent to
physically take the property plus the intent to permanently deprive the
owner of the property). Cannot be inferred, must be proven.
Criminal negligence—A gross lack of care; a higher standard than civil
negligence.
Transferred intent—A creative concept whereby courts rationalize that a
defendant’s mental state toward her intended victim is “transferred” to
the actual victim.
Model Penal Code—A model penal code created in the 1950s by a group
of law professors, judges, and lawyers. The MPC recognized four men-
tal states:
Purposely—Where the defendant has the conscious desire to act in a cer-
tain way or cause a certain outcome.
Recipe for Crime 17
Homicide
woman snuffing her husband for the insurance money and a woman using
deadly force to protect herself from an unprovoked street attack. The law
also sees this distinction. The first two types of homicides—justifiable ho-
micides and excusable homicides—are not punishable by criminal law.
A justifiable homicide is an intentional killing that is authorized by law
because it is seen as socially acceptable. Like when some nitwit takes a cell
phone call at the movie theater and starts barking orders to his, appar-
ently, deaf assistant, and you . . . okay, that’s not really one of them. What
it does include is the execution of criminals in states with the death penalty,
killing in self-defense, or killing to prevent a felony or capture a danger-
ous felon.
Consider the Amadou Diallo case, which was covered extensively by
Court TV and the rest of the national media. On February 4, 1999, four
plainclothes officers were patrolling in the Bronx, New York, when they
saw Diallo standing inside a building vestibule and acting in a way they
considered suspicious. Apparently thinking that Diallo was about to com-
mit a robbery, the officers approached him and a series of fatal mispercep-
tions followed.
According to the officers, Diallo ignored their commands to halt and
“darted” to the back of the vestibule, where he reached into his pocket.
The officers believed that Diallo was reaching for a gun. When one of the
officers fell off the steps, his colleagues thought he had been shot and they
opened fire. Amadou Diallo was hit nineteen times. In fact, Diallo was
unarmed and carried only a beeper, a wallet, and his keys. The officers
were charged with second-degree murder (and other lesser offenses as
well). At trial, the defense scored a major victory when the judge agreed to
instruct the jurors that they could acquit the officers if they believed that
the officers had to use force to apprehend a fleeing felon. The jurors ac-
quitted the officers on all charges.
An excusable homicide is one where the killer is not seen as morally
culpable for the killing because the death is the result of an accident that
occurred during a lawful act where people were using ordinary care in
their actions. Doing something lawful with no care (burning some brush
during a windstorm) and doing something illegal but with great care
(pouring paint thinner in your rival’s coffee without spilling a drop) will
not qualify.
The idea behind excusable homicides is that the person who caused the
death isn’t at fault. Think of a sportsman following all the safety rules at a
shooting range when suddenly, on a dare, some knucklehead runs across
the line of fire and is killed. Unlike with a justifiable homicide, society
doesn’t exactly see the killing of knuckleheads as acceptable (or it would
20 The Crime Junkie’s Guide to Criminal Law
be open season on reality show contestants), but you probably don’t think
the sportsman should go to prison, and neither does the law.
Of course, most of the interesting homicides are the last type of
homicide—good, old-fashioned criminal homicides: the ones where the po-
lice arrest the “perp” and sweat him in “the box” before he “lawyers-up.”
Criminal homicide abides no justifications or excuses. This is the world of
“bumping off” and “rubbing out,” of barbarous rages and fatal conse-
quences. People who fit into this blameworthy category don’t get a free
pass; they get a prison ID number and worse. That is, if the police “collar
up.”
That’s sure how it seems on TV; the cops and DAs get to the truth
in murder cases with great regularity. Although the authorities some-
times stumble on Law & Order, in most shows an arrest is made in
every murder case and trials end with guilty verdicts. Then there’s the
real world. According to the FBI’s Crime in the United States, 2005, only
61 percent of all murders reported to the police were cleared by an
arrest or other means. Thankfully, there are always cold-case squads
like those depicted on A&E’s Cold Case Files and CBS’s Cold Case.
Legal Briefs
Homicide—A killing of one human being by another human being.
Justifiable homicide—A killing that is authorized by law (think of a police
officer shooting an armed bank robber).
Excusable homicide—An accidental death where the killer deserves no
punishment.
Chapter 4
Murder
Imagine that you are the proud father of a high school hockey star. You
sacrifice an enormous amount of time and money to help your son hone
his skills because this sport is his ticket to college, something you other-
wise might not be able to give him. For years you faithfully attend all his
games and practices, cheering him on, urging him to skate even harder,
score even more. Sometimes you get too involved, screaming at the coaches
and referees, clashing with the parents of other players, even those on
your son’s team. But all you want is what’s best for your boy. It’s not your
fault if other kids aren’t as talented and if their parents can’t handle that
fact. The scouts need to see that your son is the best.
Now, imagine that one day the coach kicks your son out of practice
and benches him for the next game because of a little rough play. When
you hear the news, you are as angry as you’ve ever been. There are going
to be college scouts at that game; this is what you and your son have been
working toward since he was four. How could this idiot coach throw
that away?
You confront the coach in the parking garage after practice, your son by
your side. You want to know what the hell is going on and your fury only
builds as you realize the coach isn’t going to change his mind. In a blind
rage, you punch the coach in the face, grab your son’s stick, and whack the
bastard good. Even that’s not enough. Your son is yelling something at you,
but you don’t hear. You just see the cause of your trouble lying on the
ground, blood streaming from his wounds, and you kick him. You’ll kick
that damn benching right out of him. Then you see that he’s not moving
anymore and a frightening thought breaks through your rage: you’ve gone
too far. He’s dead and you’re the defendant in a Law & Order episode.
22 The Crime Junkie’s Guide to Criminal Law
After the police figure out that it was your son who made the 911 call,
they get a warrant and search your apartment, finding a hockey stick with
blood on it. McCoy puts pressure on you and your son, even threatening
to charge your boy, until you and your son agree he should testify against
you—in your murder trial. It may seem obvious, but let’s look at the rea-
sons behind the charge. Why, as a matter of law, did your actions add up
to murder?
Most states define murder as the unlawful killing of another human
being with “malice aforethought.” Remember, if it’s a lawful killing, it’s a
justifiable homicide and not murder. Since none of the fifty states has le-
galized beating someone to death over a hockey game, this cannot be jus-
tifiable homicide.
It is important to know what “malice aforethought” means. One thing
it means is that lawyers like to make things confusing by using lots of
words that no one uses in their everyday lives, like “party of the first part,”
“heretofore,” and “$500 an hour.” Oddly, “malice aforethought” does not
mean that the killer acted out of ill will or hatred toward the victim.
What “malice aforethought” does mean is that the defendant acted
with at least one of the following mental states: (1) intent to kill, or (2) in-
tent to inflict great bodily harm, or (3) extreme recklessness (in some
states it’s called “depraved indifference”) as to whether the victim lived,
or (4) intent to commit a felony during the commission (or attempted com-
mission) of which someone dies. The key concept is that if a person kills
someone and meets any one of these criteria, he is guilty of murder.
BY THE NUMBERS
The FBI’s Crime in the United States, 2005, shows that there were
almost 17,000 murders in 2005; of those, 63 percent were committed
with a firearm, and 12.9 percent with a knife or cutting instrument.
Intent to Kill
An intentional killing means that the defendant actually meant to kill the
victim. Trying to determine what the defendant was actually thinking
poses a small difficulty in that there are no magical machines that can
read someone’s thoughts. To deal with that problem, the law generally
assumes that ordinary people intend the natural and foreseeable conse-
quences of their actions and allows the jury to infer the intent behind
those actions.
Murder 23
In 1989, Lyle and Erik Menendez, each carrying a shotgun, burst into
their family home where their parents, Jose and Kitty, were seated on a
couch. The brothers fired their weapons, hitting Jose four times and Kitty
nine times. Jose and Kitty were shot in the head and the extremities, and
most of the shots to Kitty occurred when she was lying on the floor. Leav-
ing aside allegations of cruelty and abuse that may have driven the broth-
ers to such extremes (and which surely didn’t hurt Court TV’s ratings), it
is clear that Lyle and Erik wanted their parents dead. There’s no other way
to view shooting someone multiple times with a shotgun. In fact, some
states have what is referred to as the “deadly weapon rule.” When a person
intentionally uses a deadly weapon (such as a shotgun) against a vital part
of the body (such as the head), the inference of intent to kill is assumed.
Back to our hockey dad. Did he intend to kill the coach? He surely
meant to hurt him, as demonstrated by the punch to the face and the kick
when the coach was on the ground. Those actions, by themselves, proba-
bly point to a man driven by anger to hurt, not necessarily kill. We don’t
usually think of a punch and a kick as leading to death.
But what about the hockey stick? Is it a deadly weapon (usually defined
as anything designed to inflict death or serious physical injury)? Perhaps
the prosecution could argue it is, but players swing hockey sticks at each
other all the time in games, receiving nothing more than a penalty if they’re
caught doing it in a way prohibited by the rules. Even though the dad
meant to hit the coach with the stick, it may not enough to meet the “intent
to kill” standard.
store manager reaches underneath a table and activates a hidden alarm sys-
tem. Security doors immediately drop to close off the exits. Unfortunately,
for the store manager, one of the doors drops directly onto the shotgun
that had been dropped onto the floor. The shotgun discharges, killing the
store manager, who happened to be lying directly in its line of fire.
Surely the purpose of the robbery was not to kill the store manager. In
fact, the bizarre set of circumstances leading to his death could hardly
have been imagined by anyone. (Except, of course, for the writers of
CSI: NY, who wrote this script for episode #49.) However, as CSI Lindsay
Monroe noted in the show, the death occurred during a felony, bringing it
under the felony murder rule and making the Hollys all responsible for
the murder of the store manager.
In most states, a death that occurs during the commission or attempted
commission of a specified dangerous felony (usually rape, robbery, bur-
glary, and arson) is first-degree murder. If the death occurs during any
other felony, the charge is second-degree murder. It doesn’t matter whether
the defendant intends to kill or it happens accidentally or even unforesee-
ably; if someone dies during the felony, the charge is murder. Therefore,
whether a robber intentionally shoots the victim through the heart to do
away with a witness or the victim dies of a heart attack while handing
over her jewelry, or a door accidentally causes a shotgun to fire, the charge
is still murder.
The main justification for such a strict rule is that it is meant to be a
deterrent to those who might commit serious crimes. Perhaps they will
reconsider or, if not, at least proceed with greater caution so as not to
cause a death. Because, really, who is more likely to carefully consider the
implications of his actions than a sweating, retching, strung-out addict
who is desperate for money?
Of course, prosecutors love the felony murder rule because all they
have to prove is that the defendant committed or attempted to commit the
felony and that a death resulted; they don’t have to prove any premedita-
tion or malice aforethought.
An important consideration for applying this rule is what exactly con-
stitutes “during the commission or attempted commission of a felony”?
What are the beginning and end points of the felony? Courts commonly
hold that the death must occur during the res gestae (things done) of the
felony. This means that the rule applies from the instant the defendant has
done enough to be charged with attempting the felony to the completion of
the felony. Most courts agree that the felony continues, even after the com-
mission of the crime, until the felon reaches a place of temporary safety. If
an officer dies in an accident during a high-speed chase of a fleeing rapist,
26 The Crime Junkie’s Guide to Criminal Law
the felony murder rule would apply. If the officer has a heart attack the
next day while searching for the rapist, the rule would not apply.
Not only must the death occur during the res gestae of the felony, the
death must occur because of that felony. If a defendant is passing a bad
check (a felony) and the clerk, who is unaware of the crime, dies of a heart
attack during what he thinks is a normal transaction, the felony murder
rule would not apply. Because of the potential harshness of the felony
murder rule, some states also limit the rule to felonies that are inherently
dangerous (rape, robbery, burglary, and arson). In those states, even if the
clerk becomes aware that the defendant is passing a bad check and has a
heart attack, the charge would not be murder.
Another important limitation put on the felony murder rule is significant
for our Law & Order hockey dad. In some states, the rule only applies if the
felony is independent of the death. If the felony is not independent, it is
said to merge with the homicide. What this means is that if death occurs
during an armed robbery, the felony murder rule applies since the pur-
pose of the robbery—taking property—is independent of the death. How-
ever, in the case of a felonious assault, as with our hockey dad, the assault-
ive conduct that caused the death is the felony, and the felony murder rule
does not apply. This makes sense. If there were no merger limitation, every
voluntary and involuntary manslaughter would be bootstrapped into a
felony murder and the entire purpose of having separate murder and
manslaughter offenses would be defeated. Anyway, this is why McCoy
had to use the “extreme indifference” theory to prosecute the hockey dad
and couldn’t rely on the easier-to-prove felony murder rule.
KILLING BY A NONFELON
Degree of Murder
Many state statutes divide murder into first and second-degree, with only
first-degree murderers eligible for the death penalty. Generally speaking,
killing by means of lying in wait, poison, bomb, torture, or during the
course of certain violent felonies (such as arson, burglary, rape, and rob-
bery) is first-degree murder. In addition, most states provide that “willful,
deliberate, and premeditated” murders are first-degree. All other murders
are second-degree.
While this may seem straightforward, a consistent difficulty with dis-
tinguishing first-degree from second-degree murder has been defining the
limits of “deliberate and premeditated” (most courts agree that “willful”
simply means “intentional”). Some courts see “deliberate” as meaning
“consider” or “evaluate.” They hold that the killer must have actually re-
flected on the idea of killing, weighing the consequences of the act. Some-
one who kills because of excitement or a “sudden passion” has not delib-
erated and is not guilty of first-degree murder. Other courts, however, see
“deliberate” as nearly synonymous with “willful” and treat nearly all
intentional homicides as first-degree.
The concept of “premeditated” has also been problematic. The diction-
ary definition of premeditated is “consciously considered beforehand.”
The tricky question is how much time beforehand? Some courts have held
28 The Crime Junkie’s Guide to Criminal Law
Legal Briefs
Murder—An unlawful killing with malice aforethought.
Malice aforethought—Does not mean ill will or hatred; does mean the
defendant had one of the following mental states:
1. intent to kill
2. intent to inflict great bodily harm
3. extreme recklessness/depraved indifference to whether the victim
lived
4. intent to commit a felony
1. In addition, most states provide that murders that are “willful, de-
liberate, and premeditated” are first-degree. All other murders are
second-degree.
2. Some states instead rely on a set of aggravating and mitigating factors
when determining punishment for a murder.
Chapter 5
Voluntary Manslaughter
Note that we’re not talking about how this defendant reacted to the
provocation; we’re talking about how a reasonable person would have re-
acted. Whenever you see the term “reasonable person” in a criminal law
context, it is meant to signal an objective standard of judging behavior.
Essentially this mythical “reasonable person” acts as we would want a
sensible person in our society to act and provides a standard by which we
can measure this particular defendant’s actions.
You might wonder whether a truly reasonable person would, under
any circumstances, lose control and kill someone. Although various courts
have described this reasonable person differently, a good way to think of
it is to conceptualize an ordinary person who, like everyone else, has a
breaking point.
An issue that frequently arises is whether the reasonable person stan-
dard should incorporate any of this particular defendant’s characteristics
(such as age, level of intoxication, past experiences, etc.). A woman who
has been abused as a child might well react differently to a physical con-
frontation than others would. In fact, that person sounds like someone to
whom we could be sympathetic. Of course, most people will not be sym-
pathetic to every person who “snaps”—consider a man whose racist atti-
tudes cause him to become violently enraged during a dispute with an
Asian immigrant.
Some courts say that the reasonable person should not be regarded as
having any of the defendant’s characteristics since this would undercut
the objective nature of the test; other courts say that the reasonable person
can be considered to have some of the defendant’s characteristics but prob-
ably not any that show a reduced ability to control his passions. The truth
is, it’s difficult to fashion an objective standard for measuring the behavior
society expects while at the same time being fair to a particular defendant.
There’s no formula that applies across the board, and different states come
up with different definitions.
Provocation
Over time, most jurisdictions developed rules about what is sufficiently
provocative to cause a reasonable person to lose control of his passions.
The standard ones included things like a serious physical attack or a hus-
band finding his wife committing adultery. Acts that were not consid-
ered provocative enough to reduce a killing to manslaughter were a hus-
band learning about his wife’s adultery and “mere words” (abusive
language, insults regarding your mother ’s sexual history, etc). The modern
trend is to expand somewhat the concept of sufficient provocation beyond
32 The Crime Junkie’s Guide to Criminal Law
these rigid categories. For example, in some states, a husband who learns
of his wife’s infidelity and kills her may be guilty of manslaughter and
not murder. And, of course, gender is no longer a factor; a wife who kills
her husband’s lover (or her husband) could likewise be found guilty of
manslaughter.
Manslaughter is frequently an issue where there has been a killing in
response to some type of physical assault. Not surprisingly, a minor as-
sault will not be considered the type of provocation that brings about a
“killing passion” in a reasonable person. So, it’s not manslaughter if you
shoot someone for pushing ahead of you in line at Starbucks. But a very
violent attack could definitely be the trigger that reduces a killing from
murder to manslaughter.
MUTUAL COMBAT
Generally, if two people agree to fight (“Hey, you wanna take this
outside, buddy?”) and one of them is killed, the crime is manslaugh-
ter, not murder. It doesn’t really matter who threw the first punch
because the “sufficient provocation” is the combat itself. Of course,
there would have to be evidence that both participants agreed to
fight; if a defendant simply issued the invitation and then clubbed
the other guy over the head with a baseball bat, it’s murder. The law
isn’t going to give you a lesser punishment just because you were
clever enough to voice an offer immediately before butchering the
object of your anger.
ancient Tibetan monk, I think I’ll just stab this fellow several times!” he
would not have met the test for manslaughter.
TRANSLATIONS
Just to remind you that crime knows no borders, here are some
translations for “manslaughter”:
Danish: drab, manddrab
Dutch: doodslag
French: homicide involontaire
German: totschlag
Italian: omicidio colposo
Portugese: homicidio culposo
Spanish: homicidio involuntario
Legal Briefs
Voluntary manslaughter—a killing in response to “sufficient provoca-
tion” (a “heat of passion” killing).
Reasonable person—a mythical, always sensible person who acts and re-
acts exactly as we would like the average citizen to act.
Sufficient provocation—a legal standard; provocation that would make a
“reasonable person” lose control of his emotions.
Cooling off period—the time between a provocation and a killing; if it is
a long enough time for a reasonable person to regain control of her emo-
tions, the killing (even if in response to legally sufficient provocation) is
not voluntary manslaughter.
Chapter 6
Involuntary Manslaughter
Criminally Negligent
This is another one of those places in criminal law where things aren’t crys-
tal clear; courts come up with lots of different standards for judging
whether an act was done in a criminally negligent manner. Most courts,
though, try to fit “criminal negligence” (sometimes called “culpable negli-
gence” or “gross negligence”) between an upper and lower standard of
negligence.
The upper standard is “reckless indifference.” Recall that a killing re-
sulting from “reckless indifference” to human life is one of the ways in
which “malice aforethought” is found and murder is charged. This type of
extreme carelessness means something like firing a gun into a crowd of
people at a bus stop. The lower end of negligence is “civil negligence”
(sometimes called “ordinary negligence”). This type of action is not crimi-
nal and, as the name implies, would result only in a civil suit where the
person harmed sues the careless person for damages. An example of civil
negligence would be causing an accident by not clearing your windshield
of snow and ice before madly dashing to work in the morning. The bottom
36 The Crime Junkie’s Guide to Criminal Law
STATUTE OF LIMITATIONS
All states and the federal government have statutes that establish
a time limit for prosecuting a crime (there are also time limitations
for filing civil suits). The basis for a statute of limitations is simple
fairness; over time, witnesses may die or their memories may fade,
evidence can be lost, people want to move on with their lives, etc.
Some crimes (such as murder) are considered to be so injurious to
society that there are usually no limitations on when a prosecution
can commence.
A Dateline NBC episode aptly named “Unfinished Business” fo-
cused on a 1997 quadruple murder in Polk County, Florida. The show
portrayed the nearly five-year investigation that resulted in Nelson
Serrano standing trial in 2006 for the murders of his former business
partner and three other people connected to Serrano’s former busi-
ness. He was ultimately found guilty, and the jury recommended
the death sentence.
Involuntary Manslaughter 37
Sometimes the cases can be even much older than nine years.
Kennedy relative Michael Skakel appealed his conviction for the
1975 murder of Martha Moxley, saying that Connecticut’s five-year
statute of limitations on murder had expired by the time he was
charged in 2000. The state high court ruled that when Connecticut
eliminated the statute of limitations for murder in 1976, the change
applied to Skakel’s case, and the court upheld the conviction.
A man who sexually assaulted a student at the University of
Virginia in 1984 and apologized to her in a 2005 letter as part of his
Alcoholics Anonymous program pled guilty to aggravated sexual
battery in 2006 and received a sentence of ten years, with all but
eighteen months suspended. Virginia does not have a statute of
limitations for felonies.
Legal Briefs
Involuntary manslaughter—an unintentional killing resulting from a
criminally negligent act or a misdemeanor (sometimes even a low-level
felony).
Criminally negligent—does not meet the standard of “reckless indiffer-
ence” to human life (firing a gun into a crowd) but is more than civil
negligence (causing an accident by failing to clear your driveway of
snow).
Misdemeanor manslaughter—a killing that occurs during a misdemeanor
(in some states, also a low-level felony); “felony-murder-lite.”
Chapter 7
Rape
Forcible Rape
Traditionally, forcible rape required proof that the female did not consent
to the intercourse and that the intercourse was accomplished by force (the
meaning of “intercourse” is usually held to be the slightest vaginal pene-
tration). Note that even where consent was lacking, there was no rape
unless force was used. Typically, of course, the issues of force and consent
are intertwined; evidence of force is usually sufficient to prove lack of con-
sent (why else would force be necessary?).
There are those who argue that we should completely do away with the
requirement that use of force be proved and that the victim’s lack of con-
sent should be the only relevant issue. The issue becomes, though, how to
Rape 41
prove lack of consent where there is no showing that force was employed
by the defendant.
BY THE NUMBERS
The FBI’s Crime in the United States, 2005, shows that the number
of forcible rapes known to the police in 1960 was 17,190 and in 2005
was over 93,000. There are many reasons (embarrassment, the perpe-
trator is a friend or family member, etc.) that likely cause rape to be
an under-reported crime. Nevertheless, one interpretation of the
data is that victims have felt increasingly comfortable reporting
rapes since 1960.
Traditional rape law also required that the victim resisted the man’s ef-
forts with all her strength or “to the utmost” unless it was obvious that
resistance would be overcome by force (a knife to the throat, gun to the
head). The idea was that this would plainly demonstrate the victim’s lack
of consent. Just as obviously though, this requirement overlooks the fact
that not all persons are equipped physically or psychologically to “fight
back,” and also that this approach runs the real risk of requiring victims to
escalate the intensity of the perpetrator’s violence. Thankfully, this require-
ment is no longer prevalent. Where it does still exist, the trend is to reduce
its significance and only require a showing of some resistance to make
clear that there was no consent to the intercourse.
MARITAL IMMUNITY
The old rule was that a husband could not be guilty of rape of his
lawful wife, even if he compelled his wife to submit to intercourse.
The concept was rooted in the historic view that a wife was the
“property” of the husband and that he had unfettered access to her.
There was also a sense that by agreeing to the marital contract, the
wife had permanently and irrevocably granted her consent to sexual
intercourse with her husband. Most states have abolished or signifi-
cantly modified this rule.
In some cases the victim may “consent” after the defendant places her
in fear of imminent bodily harm. This “consent” is not legally valid and
the perpetrator may be prosecuted for rape.
In still other cases, a victim may be incapable of giving consent—because
of intoxication or insanity. Any intercourse with a female who is incapable
42 The Crime Junkie’s Guide to Criminal Law
of giving consent is rape, even if she somehow said words that indicated
consent. An episode of Dominick Dunne’s Power, Privilege and Justice called
“Evil Deeds” dealing with the rape trial of Andrew Luster illustrates this
concept.
Luster was heir to the Max Factor makeup fortune and lived off his
trust funds on the beaches of California. Besides being an outdoorsman,
he also lured women as young as sixteen to his home, plied them with
alcohol and drugs (including the “date rape drug” GBH), and raped them.
Because Luster was not only morally bankrupt but stupid as well, he vid-
eotaped some of these encounters. After his arrest in July 2000, the police
found several of his tapes, including one labeled “Shauna GBHing.” It
was starkly clear from the tapes that the women were unconscious and
therefore not able to give consent to intercourse. Shockingly, he was con-
victed of various counts of rape.
Prior to and during his trial, Luster was free on a bail of $1 million
(which had been reduced from the original $10 million bail). He was
under house arrest and being monitored by an electronic ankle
bracelet. During the Christmas break in the trial, Luster apparently
sensed that things weren’t going his way and cut off his ankle mon-
itor and fled. Luster was convicted while absent from the trial (in
absentia) and sentenced to 124 years in prison. In an interesting bit of
television synergy, he was actually captured in Mexico by Duane
“Dog” Chapman, who parlayed his notoriety into his own show on
A&E creatively called Dog the Bounty Hunter.
“Dog” was himself arrested in September 2006, in Hawaii, and
charged with illegal detention and conspiracy regarding his alleged
kidnapping of Luster in Mexico in 2003 (he refused to turn Luster
over to the Mexican authorities). “Dog” was initially arrested in
Mexico on the charges, but never returned after posting bail in 2003.
How ironic.
BY THE NUMBERS
According to the FBI’s Crime in the United States, 2005, in 2005 law
enforcement agencies across the nation cleared 41 percent of re-
ported forcible rapes (a case is cleared when an arrest is made or
when some element beyond the control of law enforcement pre-
vented the police from making an arrest they otherwise would have
made—a witness refuses to cooperate, dies, etc.).
44 The Crime Junkie’s Guide to Criminal Law
SEXUAL ASSAULT
Statutory Rape
In most states, intercourse with a female under the age of consent is rape,
without regard to whether she consented or whether any force, threats, or
fraud was used. The “age of consent” varies from state to state, but is com-
monly somewhere in the sixteen to eighteen-year-old age range.
Statutory rape is a “strict liability offense,” so the defendant doesn’t
even have to be aware of the victim’s age. In fact, even if he has a good
faith, reasonable belief that she is above the age of consent, he is still guilty
of statutory rape. Claims that “she told me she was nineteen” or “her ID
said she was twenty-one” are irrelevant; the man (or woman in the case of
an underage male, in most states) is a rapist in the eyes of the law.
The sixteen-year-old member of a fundamentalist Mormon group testi-
fied to an Arizona grand jury that she had been raped twice by a man
twelve years older than her who had taken her as his second wife. She
testified that she told the man that she didn’t want to have children, but
that he forced her to have sex with him anyway. Nevertheless, the girl
later refused to assist in the rape prosecution, perhaps in part due to the
hold held over her by the group and its leader Warren Jeffs. The county
attorney, however, insisted on going forward with statutory rape charges,
known in Arizona as “sexual contact with a minor.”
Perhaps the best-known case of statutory rape involves Joey Butta-
fuoco, whose seventeen-year-old lover shot his wife in the face in 1992.
Rape 45
Whether the “Long Island Lolita,” as Amy Fisher was dubbed, gave con-
sent to her sexual liaisons with Buttafuoco was irrelevant, and after plead-
ing guilty to statutory rape, Buttafuoco served four months in prison.
Fisher wound up serving seven years for the shooting. Amazingly, Butta-
fuoco and his wife remained married after the shooting. Hey, nothing says
“I love you” more than causing someone to be shot in the face (they did
divorce later). Of course, those who keep a close eye on the infamous But-
tafuoco know that he has subsequently served time for insurance fraud
and illegally possessing ammunition. In 2007, Buttofuoco and Fisher were
seen together on a “date.” True love never dies.
Legal Briefs
Rape—sometimes now called “sexual assault”; unlawful sexual inter-
course or contact with a person without consent.
Forcible rape—a rape accomplished by force; generally there is no longer
a requirement that the victim demonstrate that she (or he) resisted to
“the utmost.”
Marital immunity—the now-discarded rule that a husband cannot be
charged with the rape of his wife.
Fraud in the inducement—lies told to convince a person to do something,
like consent to have sex; usually not criminal.
Sexual assault—a term created by modern statutes to update traditional
rape laws; generally making the crime applicable to other forms of sex-
ual assault and making the offense gender neutral.
Statutory rape—a strict liability offense of having sexual relations with a
victim under the age of consent (usually sixteen); the victim’s consent is
irrelevant.
Chapter 8
Assault
What would happen if you bit your girlfriend several times on her back,
or struck a police officer who was trying to stop your friend from com-
mandeering a police horse, or threw a phone at a hotel employee, or a
dumped a bottle of whiskey over the head of a romantic rival? You would
be charged with some form of assault. And that is what happened to the
celebrities involved in these fracases (sports announcer Marv Albert mak-
ing use of his famous mouth, country music star Tim McGraw trying to
“rescue” the mounted Kenny Chesney, actor Russell Crowe with the phone
manners of a two-year-old, and rock star Courtney Love having a problem
holding her whiskey). You wouldn’t get as much press coverage, though.
Of course, it’s not just ill-mannered celebrities who commit assaults.
Well before his famous midnight ride, Paul Revere was charged with as-
saulting and beating the husband of one of his cousins. In 1761, Revere
was hauled into court, found guilty, and ordered to pay a fine. Probably
not his finest hour, but in retrospect, it does seem to be a demonstration of
the fighting spirit the young colonies would soon need.
Of all the crimes of violence, including homicide and rape, assault in its
varying degrees is by far the most common. That shouldn’t be too surpris-
ing; criminal assault covers a wide range of actual and threatened physical
attacks, from a simple shove during a disagreement between harried holi-
day shoppers over a parking space to brutal attacks fueled by rage and
often made worse by the use of weapons.
The term “assault” actually encompasses two separate traditional
crimes—“battery” and “assault.” The traditional crime of “battery” was
the unlawful use of force on another (landing ye olde haymaker on the
nose of another during the weekly tavern brawl). In fact, “battery” did not
Assault 47
BY THE NUMBERS
Although in some states the crime is still labeled “assault and battery,”
many states now use the term “assault” to cover both traditional crimes.
No matter the terminology used, lawyers and judges still like to know
whether the crime in question was a “battery” or an “assault.”
“Battery-Type” Assault
Today, something more than the mere application of force (as in a light
touching) is required. Statutes typically require either that the application
of force cause some bodily injury or that the touching is of the type likely
to be regarded as offensive. The bodily injury does not have to be a black
eye or broken ribs—a Des Moines, Iowa, man was charged with domestic
assault for tattooing his girlfriend’s ankle while she slept (after she took a
sleeping pill and painkiller).
“Offensive touching” is also a broad category but likely wouldn’t in-
clude something like a pat on the back, since this is a socially acceptable
behavior that is not likely to be regarded as offensive (even if the person
receiving the pat on the back was somehow offended). However, actor
Christian Slater was arrested in 2005 for grabbing a woman’s buttocks as
she walked by him in Manhattan at 2:00 a.m. While touching a stranger’s
buttocks without consent is a perfect example of an offensive touching,
the contact does not have to be sexual in nature; anything that would be
considered affronting or rude could fit. Offensive touching could even
apply to things on the victim (removing someone’s sunglasses during a
confrontation).
48 The Crime Junkie’s Guide to Criminal Law
Generally, the mental state required for a battery type assault is negli-
gence; a person can be found guilty of battery if she should have been
aware that her conduct would result in the application of some force to
another (and the conduct left some bodily injury or was likely to be con-
sidered offensive). Supermodel Naomi Campbell was charged with as-
sault for hitting her maid with a cell phone in a dispute over a pair of
missing jeans. When Campbell pled guilty in January 2007, she told the
judge: “I threw the cell phone in the apartment. The cell phone hit Ana.
This was an accident because I did not intend to hit her.” Accident or not,
her actions still met the minimum standard of negligence.
VIOLENCE IN SPORTS
What about sports where violent contact is part of the game (foot-
ball or hockey) and sports where violence is the whole game (box-
ing, mixed-martial arts fights, etc.)? And what about other areas of
life where your body is in some way damaged or at risk (surgery,
dental work)? Commonly, courts recognize a defense of consent in
these areas, especially where there is societal acceptance of the risks
(sports) and where there is a clear benefit from the defendant’s ac-
tions (surgeon). The consent must be given voluntarily and the per-
son consenting must be legally capable of consenting—not so young
as to be unable to evaluate and not someone intoxicated or with a
mental abnormality. Consent might also be a defense to “mutual
combat” assaults, as in episode #81 of Cold Case where Lilly, Danny,
and Nick investigate members of a high-school “fight club.”
In real life, violence in sports can lead to criminal prosecution.
Even in the National Hockey League, where savage checking and
fistfighting are commonplace, some things cross the line from sports
to crime. In March 2007, New York Islanders forward Chris Simon
was suspended for twenty-five games for a vicious two-hand stick
Assault 49
attack to the face of New York Rangers Ryan Hollweg (yes, even in
New York some things shock the conscience). Local prosecutors re-
viewed the case and, partly in consideration of Hollweg’s wishes,
declined to charge Simon with a crime, although they seemed to
believe they could have.
INJURIES
Although most states require something more than the mere ap-
plication of force (some slight touching) to make an assault, the
majority of assault victims in 2005 did not suffer physical injury.
According to the 2005 Criminal Victimization in the United States, 2005
Statistical Tables, only 25.8 percent of assault victims sustained phys-
ical injury (Table 75). In just over 70 percent of all assaults, no weapon
was used, but in aggravated assaults where there was an injury, a
weapon was used over 78 percent of the time (Table 66). (These
figures do not include assaults during robberies or sexual assaults.)
SAFE AT HOME?
“Assault-Type” Assault
In most modern statutory schemes, either an attempt to commit a battery or
intentionally placing someone in fear of a battery is an assault.
With the attempt to commit a battery assault, it is important to realize that
the mental state required is more than the intent to frighten; the defendant
must have actually intended the application of some force. So, although
negligence will suffice for a battery-assault (negligently tossing a car battery
Assault 51
Mayhem
While not technically an assault, mayhem is a closely related offense.
Historically, the crime of mayhem required that the defendant maliciously
deprive the victim of the use of his limbs, rendering him less able to fight.
Subsequently, the definition of mayhem was expanded to cover other dis-
figurements. Today, states that still have the crime of mayhem usually de-
fine it as disfiguring another or disabling another by causing loss of use of
a limb, tongue, nose, eye, or testicle. It is commonly a felony.
The disfigurement or disabling must be of the permanent variety. If the
bone can be set easily or the sliced ear stitched up well enough, there is no
mayhem. So, Mike Tyson probably did not commit mayhem when he bit
off part of Evander Holyfield’s ear during their 1997 heavyweight fight
because the ear was reparable (although likely not to its original condi-
tion). Given the intense physical contact anticipated in professional box-
ing, Tyson probably didn’t even commit an assault (although one could
argue otherwise).
Mayhem used to be punished by mutilating the defendant in the same
manner as the victim. That is no longer the case today, although if it were,
it would probably make for some very popular reality TV shows.
Legal Briefs
Assault—covers both traditional crimes of battery (hitting) and assault
(attempting to hit or placing in fear).
52 The Crime Junkie’s Guide to Criminal Law
Kidnapping
FALSE IMPRISONMENT
MEANING
Why is the word kidnapping when the victim can be any age?
When the term originated, the “kids” who were nabbed were not
youngsters, but workers (called “kids”), who were recruited by force
or trickery for service on American plantations (much like David
Balfour in Kidnapped). The crime originally had more to do with
adults than children (who were less likely to be of much use on a
plantation). In fact, there actually used to be separate terms—adult
kidnapping and child kidnapping—but they have merged in modern
legal usage.
Legal Briefs
Kidnapping—confinement of a person involving either moving the vic-
tim or concealing the victim in a secret place; accomplished by force,
threats, or both.
Movement—varies by jurisdiction; some courts say any movement suf-
fices, others require more substantial forced movement.
Secret place—any place where the victim is unlikely to be found; does not
have to be an underground cave or cabin high in the mountains.
False imprisonment—unlawful confinement of a person without her con-
sent (making the person remain where she does not wish to remain);
usually a misdemeanor.
Chapter 10
Acquisition Offenses
Society doesn’t much care if you steal a glance, steal someone’s heart, or
steal home plate, but stealing property is an entirely different matter. There
are a variety of different ways to steal (snatching and fleeing, taking by
force, obtaining title by fraud, etc.), and mainly because of tradition and
historical accidents, there are a medley of crimes to cover these situations
(larceny, robbery, false pretenses, etc.). Although all of these are acquisition
offenses (involving the wrongful appropriation of property), each has dis-
tinct elements. In some cases the distinctions between them are slight and
fairly technical. It likely doesn’t make a bit of difference to the victim
whether the offense is called “larceny” or “robbery”; if your wallet is sto-
len, you still need to cancel all your credit cards and hope like hell that
whoever took it doesn’t make house calls. But the law is a finicky creature,
and the police and prosecutors have to examine carefully the elements of
the various offenses to decide which crime (if any) to charge.
Larceny
Larceny is essentially interfering with someone’s possession of property.
This is your basic, garden-variety stealing, shoplifting, etc. It is often called
“theft.” The elements of larceny are:
1. a trespassory
2. taking and
3. carrying away
4. the personal property
Acquisition Offenses 57
5. of another
6. with the intent to permanently deprive the owner of possession.
“Trespassory” is the fancy lawyer word for wrongful, and here means
without the consent of the victim; if the defendant has permission to take
the property and keep it, there is no crime. What if the defendant tricks the
victim into giving her permission to take possession of the property by a
promise to return it even though the defendant has no intention of ever
returning the “borrowed” property? This is commonly called “larceny by
trick” and is still larceny as long as it can be shown that the defendant
didn’t intend to keep the promise at the time she made it. “Larceny by
trick” also covers obtaining property by other deceptions.
The “taking” required for larceny means exercising control over the
property. Usually, the “taking” element is part of the “carrying away” ele-
ment, but sometimes there can be independent evidence of each. Actress
Winona Ryder was arrested for shoplifting (and drug possession charges)
outside of an upscale department store in December 2001. Video from the
store’s security cameras and testimony from store security officers showed
Ryder taking merchandise worth over $5,000 into a dressing room and
cutting off the store security tags with scissors. This by itself is evidence of
“taking” since she was exercising control of the $1,500 Gucci dress and $80
pair of socks in a way incompatible with the store’s ownership rights to
the property. Of course, she then secreted the items in a bag and walked
out of the store, evidence that satisfies both the taking and carrying away
elements of the crime (which was a felony because of the value of the
merchandise—states usually make stealing property worth less than a cer-
tain dollar amount a misdemeanor, anything above a felony).
The “personal property” of another” simply means that the defendant
must have taken the property from someone else (including a store) who
had possession of it. Bear in mind that we’re talking about possession, not
title, here. If you bring your car to a garage to be repaired and later drive
off without paying, you may have committed larceny. The garage had a
mechanic’s lien on the car until payment is made and thus had possession
of the car; the fact that you always had title to the car is irrelevant.
The definition of property is often expanded by statute to cover things
like documents, records, and electronically stored data. In episode #20 of
Law & Order: Criminal Intent entitled “Badge,” Detectives Goren and Eames
discover that a city auditor was murdered by ex-police officers who
worked for a security service being audited by the city. As part of his stan-
dard incredibly clever plan to capture the bad-guys, Goren catches one of
the ex-officers using a computer to try to steal a police file that would link
58 The Crime Junkie’s Guide to Criminal Law
her to the murder. When the police burst into the room, Goren informs the
woman that she is being arrested in part for “larceny of a police file.”
SATISFYING A DEBT
BY THE NUMBERS
Robbery
It’s almost dawn, closing time for a neighborhood bar in New York City.
The bartender and the bouncer are cleaning up for the night and as they
turn on the neon “closed” sign, the bouncer heads toward the front door
to lock it. Suddenly a man pushes his way through the door. He’s wear-
ing a green hooded sweatshirt that obscures his face and waving a gun
around. He gets all the cash from the register and shoots the bartender twice
before running off. In this episode of CSI:NY (# 58), Detective Flack seems
Acquisition Offenses 59
to get it right when he describes the scene to Mac and Stella as a straight
robbery (of course, in keeping with the CSI motif where nothing is as it
first appears, the robbery eventually turns out to be a way to frame CSI
member Hawkes).
Robbery is basically an aggravated form of larceny. It requires proof of
all the elements of larceny and two other elements:
Where intimidation is the basis for a robbery charge, the victim must
have actually been in fear, the fear must have been caused by the defen-
dant’s actions, and that the fear must be objectively reasonable. The threat
involved generally must be of death, serious bodily injury, or deleting the
7,000 songs on someone’s iPod (worse than death to some people).
An implied threat, like waving a weapon or even a fist in the victim’s
face, is probably even enough. After leading Ohio State to the national
championship in 2002, football star Maurice Clarett pled guilty to a rob-
bery charge after he was arrested for flashing a gun at two people and
taking a cell phone from them.
Bad enough to lose your property, but it hurts a little more when
you suffer a physical injury as well. In 2005, of the more than 415,000
completed robberies, the Criminal Victimization in the United States,
2005 Statistical Tables, shows that over 140,000 of them resulted in
injury to the victim (Table 7).
Acquisition Offenses 61
Embezzlement
Embezzlement requires that the following elements be shown:
1. The fraudulent
2. conversion
3. of property
4. of another
5. by a person in lawful possession of that property. (Embezzlement is
distinguished from larceny in that the misappropriation of the prop-
erty occurs while the defendant has lawful possession of the property,
while larceny involves the defendant unlawfully obtaining posses-
sion of the property.)
Actually possessing the property suffices, but so does having the thief put
the property in a place that the defendant chooses. A major issue in this
crime revolves around the “known to be stolen” requirement. The defen-
dant doesn’t have to witness the theft; if he has reason to believe that
property is stolen (being offered a giant plasma television for $200 by
“Sticky Fingers Freddy” for example), that may be enough.
False Pretenses
“False pretenses” consists of:
1. obtaining title
2. to the property of another
3. by an intentional false statement of past or existing fact
4. with the intent to defraud.
Consolidation
Many states have combined larceny, embezzlement, false pretenses, and
receiving stolen property into a single offense: theft. This makes it a lot
easier on the police and prosecutors since they don’t have to worry about
charging the proper acquisition offense and being caught up in distinc-
tions between “possession” and “title,” etc. Robbery, which involves vio-
lence, is generally kept as a separate crime.
Legal Briefs
Larceny—a trespassory taking and carrying away the personal
property of another with the intent to permanently deprive the owner
of possession.
Robbery—an aggravated form of larceny; includes all the elements of
larceny along with two additional elements—the property must be
taken from the victim’s person and the taking must be by violence or
intimidation.
Embezzlement—the fraudulent conversion of property of another by a
person in lawful possession of that property.
Conversion—a substantial interference with the owner’s right to the
property.
Receiving stolen property—receiving possession and control of property
known to have been stolen.
False pretenses—obtaining title to the property of another with an inten-
tional false statement of past or present fact with the intent to defraud.
Chapter 11
Burglary
Burglary is one of the few crimes you see advertised. You don’t see lots of
TV commercials where citizens are being assaulted with dangerous weap-
ons or kidnapped, but home security companies like ADT and Brinks
spend a small fortune on commercials where we actually see the bad guys
committing the crime (or at least trying to—those security systems never
fail to save the day). The fact that corporate America puts so much money
into advertising ways to prevent burglaries shows our determination to
have our homes remain islands of safety in a frequently dangerous world.
The traditional definition of burglary was:
1. the breaking
2. and entering
3. of the dwelling of another
4. at nighttime
5. with the intent to commit a felony therein.
These elements were very technical, and sometimes the analyses had a
“How many angels can dance on the head of a pin?” quality to them.
For example, “breaking” required the use of some force, but it was an
open question as to how much force was necessary. Some courts said that
opening a closed but unlocked door was sufficient; other courts said that
even if the door was open six inches and the offender pushed it open
slightly more to gain entry, this was a “breaking.” The “breaking” had to
have been to enter some part of the house—opening an unlocked closet
door counted, but not smashing open a locked filing cabinet.
Burglary 65
The Model Penal Code is more expansive than most state stat-
utes. Under the MPC approach the intent to commit any crime, mis-
demeanor or felony, is sufficient for a burglary charge.
BY THE NUMBERS
The FBI’s Crime in the United States, 2005, shows that there were
2,154,126 million burglaries reported to the police in 2005. Of those,
nearly two-thirds were burglaries of residences, and one-third were
nonresidential structures. Most residential burglaries occurred dur-
ing the daytime (6:00 a.m. to 6:00 p.m.) (Table 23). The clearance rate
for burglaries was 12.7 percent (Table 25).
Legal Briefs
Burglary—breaking and entering a building with the intent to commit a
felony (sometimes any crime) within.
Intent to commit a felony—at the time of the unlawful entry, the defen-
dant must have intended to commit a felony (sometimes any crime)
within; the burglary is complete upon unlawful entry with the intent to
commit the crime, regardless of whether the crime is actually begun or
completed.
Chapter 12
Arson
Political protest is part of the fabric of this society. We have a long and rich
tradition of fiery protests, fiery speeches, and occasional real fires. Noth-
ing gets your point across more directly than flames leaping from a build-
ing set against the dark night sky.
Imagine an environmental group deciding to protest urban encroach-
ment on natural settings by burning the offending structures to the ground;
one of their signature “actions” is to torch a ski resort in Utah. Suppose the
protest group is called “Coyote” and that three true-believers travel to
New York City to burn a building being constructed on the former site of
a beloved community garden. The three activists, all college students, be-
lieve that the building is unoccupied and use gasoline to set a fire that
tragically results in the death of a woman inside the building. Dramatic?
You bet. In fact, a good enough story to be episode #261 of Law & Order
called “The Fire This Time.”
In the “ripped from the headlines” custom of Law & Order, the episode
is based in part on real-life crimes. In 1998 the Earth Liberation Front (ELF)
claimed responsibility for eight separate fires at a Vail ski resort that caused
an estimated $12 million in damage. ELF said that it targeted Vail because
it was encroaching into the habitat of the endangered lynx.
ECOTERRORISM
1. Intent to burn,
2. Knowledge that the building would burn, or
3. Intent to create an obvious fire hazard.
BY THE NUMBERS
According to the FBI’s Crime in the United States, 2005, over 67,000
arson offenses were reported in 2005 (Table 12). Approximately 18
percent of those cases were cleared (Table 25).
Legal Briefs
Arson—the malicious burning of a structure; not an accidental burning;
generally a felony.
Chapter 13
Perjury
must be false. Well, in many jurisdictions, no. If the witness admits that
one of the statements is not true, he is not guilty of perjury. The reason for
this is purely practical—anything that gets to the truth of the matter is to
be encouraged, so honestly copping to a lie in court is allowed.
Perjury cases are not exactly common, and they are often offshoots of
other criminal matters. Take as an example the much-publicized case of
the death of congressional intern Chandra Levy. U.S. Representative Gary
Condit potentially exposed himself to perjury charges when he failed to
admit to investigators until his third interview that he had had a romantic
relationship with the missing twenty-four-year-old. Ultimately the issue
was probably not material, and Condit was never charged with perjury.
Rapper Lil’ Kim was charged with perjury in relation to a 2001 shootout
in Manhattan between members of her entourage and those of a rival rap-
per. She was charged with lying during three separate appearances in
front of the grand jury investigating the shootings. Although she was not
a suspected shooter, investigators believed that she was lying about a ma-
terial matter (whether a suspected shooter had been at the scene).
There is also a separate offense of “suborning perjury,” which means
inducing or causing someone else to commit perjury. Suborning perjury
requires that the defendant: (1) know the testimony to be given is false,
and (2) actually cause the witness to give false testimony under oath. Re-
member Monica Lewinsky? In a taped conversation, she said that she in-
tended to lie in her deposition in the civil case involving President Clinton
(where Paula Jones was suing him for sexual harassment). In that conver-
sation, she also asked another witness to lie in a deposition. Saying that
she intended to lie is not perjury, but asking a witness to lie could be sub-
orning perjury.
Here’s a curious issue for you; why isn’t a defendant who takes the
stand, proclaims his innocence, and is then convicted also charged with
perjury? It’s cut and dried—he took the stand, swore an oath, and know-
ingly gave testimony that has been proven in court to be false. Well, the
truth is, everyone involved in the criminal justice system would see this as
a huge waste of time that might also unconstitutionally inhibit a person’s
right to testify in her own defense.
Legal Briefs
Perjury—willfully giving a false statement under oath.
Material matter—something that could influence the outcome of the
proceeding.
Suborning perjury—inducing someone else to commit perjury.
Chapter 14
Solicitation
MOVIE TIE-IN
Actor Robert Blake of Baretta fame was charged both with the murder
of his wife and soliciting her murder. Bonnie Lee Bakley was shot dead on
May 4, 2001, as she sat in Blake’s car near an Italian restaurant where they
had just dined. Blake claimed that he returned briefly to the restaurant to
retrieve his gun (not the gun used in the murder) and found his wife dead
when he got back to the car. The prosecution contended that after failing to
convince stuntman Ronald Hambleton to kill his wife, Blake did it himself.
The jury apparently did not find Hambleton credible (perhaps swayed
by evidence of his history of drug-induced delusional behavior) and ac-
quitted Blake on the charge of soliciting murder. They also acquitted Blake
of the actual murder and deadlocked on a second charge of soliciting mur-
der (which was eventually dismissed).
Solicitation is flexible enough to cover crimes other than prostitution
and murder—nearly any crime will do (depending on the state) from
shoplifting to kidnapping. In 2006 a youth-baseball coach was charged
with trying to pay one of his players to hurt an autistic teammate so that
Solicitation 75
the teammate couldn’t play. The coach was eventually convicted of crimi-
nal solicitation to commit simple assault after the player testified that on
the coach’s instructions he threw baseballs at the autistic boy’s groin and
ear. That coach did not win the league’s “coach of the year” award.
Traditionally, solicitation was punished to the same degree as the of-
fense solicited. Modern statutes usually provide for a lesser penalty for
the solicitation than for the crime contemplated.
Legal Briefs
Solicitation—counseling or inciting another to commit a crime, usually a
felony.
Uncommunicated solicitation—a solicitation that does not reach the in-
tended person, blocked by a firewall, etc. As a point of reference, the
Model Penal Code would call an uncommunicated solicitation a crime.
Chapter 15
Conspiracy
Imagine that you are being prosecuted for a murder in Los Angeles but
that the DA doesn’t have to prove that you were even in Los Angeles when
the murder occurred. How could that be? We only prosecute people when
we have evidence that they committed the crime, right? Well, not exactly.
Sometimes we prosecute people because, as moms have been saying for
generations, they “got mixed up with the wrong crowd.”
Prosecutors believed that in 1975, Sara Jane Olson drove with two
friends from the Bay area to Los Angeles and planted a powerful explo-
sive device under a pair of police cruisers. Neither bomb exploded. Nev-
ertheless, in 1976, Olson was charged with conspiracy to commit murder.
All a jury needed to convict Olson was to find that she was one of a
group plotting murder and that someone in the group, not necessarily her,
took some concrete action to advance the plan. The indictment cites nu-
merous acts taken by the conspirators to advance the plan, including pur-
chasing supplies from a plumbing store and “maintaining a repository for
bombs and bomb-making materials.” Sounds a lot easier to prove than
showing that Olson actually set the bomb, doesn’t it?
But the 1976 trial never took place. Olson fled and evaded capture for
twenty-three years, eventually making a life as a suburban homemaker in
St. Paul, Minnesota, until she was arrested in 1999. She ultimately pled
guilty to possessing explosives with the intent to murder and all other
charges were dropped. She was sentenced to fourteen years in prison, al-
though that sentence was subsequently reduced to thirteen years.
Conspiracy is another one of those controversial areas of criminal law.
Defense attorneys regularly complain that prosecutors only charge con-
spiracy when they have weak evidence on the underlying crime. Sara Jane
Conspiracy 77
Olson herself inveighed against conspiracy laws, saying that they are a
threat to democracy and are unfairly used to target activists. Prosecutors
counter that conspiracy law has always been a part of American law and
that law enforcement needs this tool to target dangerous offenders like
drug dealers, street gangs, and organized crime. They point out that the
more people get together to plan a crime, the more likely the crime is to
happen, and that conspiracy laws are needed to attack crimes in the plan-
ning stages.
CONSPIRACY THEORIES
HISTORY LESSON
O conspiracy
Sham’st thou to show thy dang’rous brow by night
78 The Crime Junkie’s Guide to Criminal Law
The Agreement
The essential requirements of a conspiracy are:
WHARTON RULE
What is the rule regarding crimes that by their nature take two
people to commit? Is a conspiracy always formed when contraband
is sold? The basic rule is that there is no conspiracy unless more par-
ties participate than are necessary to commit the crime. This is called
the “Wharton Rule,” named after its author Elizabeth Wharton (not
really, although Elizabeth Wharton was an author and socialite, it
was a different Wharton who wrote this rule in a legal commentary).
Janet was preparing to see a divorce lawyer right before her disappear-
ance. Perry also knew that the Levines had long been convinced that their
daughter had been murdered. So Perry made friends with fellow inmate
Nate Farris. Perry told Farris that he could live the good life in Mexico
(courtesy of Perry’s father, Arthur) if he killed the Levines once he was
released from prison.
Farris decided to use this circumstance to his advantage and went to
the authorities. The police got him out of prison and had Farris secretly
record phone conversations with both Perry and Arthur March about the
proposed murders. Perry encouraged Farris and put him in contact with
his father. Arthur March made plans with Farris to help him buy a gun
and went to pick Farris up at the airport in Mexico two weeks later after
Farris (falsely) told Arthur that the Levines had been killed. Both Perry
and Arthur March were charged with conspiracy to commit murder.
Arthur eventually entered into a plea bargain whereby he pled guilty to
conspiracy and agreed to testify that Perry admitted killing Janet and that
Arthur actually helped Perry dispose of Janet’s body. (Perry was ulti-
mately convicted of second-degree murder, among other charges, and
sentenced to fifty-six years in prison.)
Multiple Crimes/Parties
Where there are multiple crimes over a period of time, the question is
whether there is one conspiracy, or whether each crime is part of a sepa-
rate conspiracy. The answer is found by looking to the original agreement.
If two or more people agree to engage in a course of criminal activity, there
is one conspiracy. In other words, if only a single agreement is made and
that agreement happens to be to commit multiple crimes, there is still a
single conspiracy. The thing to remember is that it is the agreement that
constitutes the conspiracy, not the subsequent crime or crimes.
Another confusing situation arises when there are numerous people
involved in the conspiracy (or conspiracies). Lawyers look at these com-
plex enterprises in two ways. The first is called the “chain conspiracy.”
Here, there will typically be a series of agreements that are all part of a
single, larger scheme. Each party to each agreement must intend the ac-
complishment of the overall criminal goal, and each participant is referred
to as a “link” in the conspiracy “chain.” Importantly, the prosecution is not
required to prove that each participant specifically knew about the other
participants (such as names, exact roles, etc.), as long as the participants
knew that others must be involved and have the same interest in seeing
the crime accomplished.
Conspiracy 81
Overt Act
Although it used to be that the conspiracy was complete the moment the
criminal agreement was reached, generally today courts also require that
some “overt” act be done in furtherance of the conspiracy. The idea is to
show that the conspiracy is more than just a shared wish and that the con-
spirators are actually “at work” trying to accomplish the criminal goal.
The “overt act” requirement is generally a fairly easy standard to meet.
Basically, any action that has a tendency to further the object of the con-
spiracy will be sufficient. An “overt act” does not have to be a substantial
step toward completing the crime; even simple preparatory acts count.
82 The Crime Junkie’s Guide to Criminal Law
Returning to our Sara Jane Olson example, just buying readily available
products at a plumbing supply store was an overt act in the conspiracy
to commit murder—even before they were assembled into an explosive
device.
What wouldn’t count, though, are conversations among the parties in
reaching the agreement since this is merely part of the agreement. But
pretty much anything else that tends to show that the conspirators meant
to carry out the crime meets the standard. And remember, this is a group
activity, so as soon as any one of the participants commits an act in further-
ance of the conspiracy, all members become liable for the conspiracy.
Defenses
There are defenses to conspiracy, the first of which is “withdrawal.” What
if at some time prior to the bomb going off and killing a police officer, Sara
Jane Olson had withdrawn from the conspiracy to plant the bomb? Not
guilty? Not quite. Although it sounds like it might be fair to let Olson off
the hook because she either realized the error of her ways or was at least
frightened enough about being caught to stop participating, her with-
drawal would probably not be an effective defense.
Remember, a conspiracy is complete once there is an agreement and an
overt act in furtherance of the conspiracy. That’s it; game over. A more
modern view, expressed in the Model Penal Code, is that Olson could
avoid liability by thwarting the success of the conspiracy (by informing the
police who then actually prevent the crime) and by a complete and volun-
tary renunciation of the conspiracy.
In episode #31 of Without a Trace called “Trip Box,” three firefighter bud-
dies agree to burn a building down in exchange for a loan stark canceling
Conspiracy 83
the large gambling debt of one of them. At a backyard barbecue, Gus, the
gambling firefighter, convinces Billy and Scott to help him “just this once.”
The conspiracy is formed the minute they all reluctantly agree to the plan.
The “overt act” requirement is met when one of them obtains a “trip box,”
a device used to make a fire look like as if it had been caused by faulty
wiring.
On the day of the planned fire, Scott says that he can’t go through with
it. He asks Gus not to do it, but does nothing to stop the plan (by going to
the police, etc.). In fact, Scott actually helps the conspiracy succeed by res-
cuing the other two from the fire and taking the “trip box” from the scene
of the crime. Thus, there is little likelihood that Scott could escape liability
for the conspiracy despite his disavowal. Not that it would matter much,
since later in the episode he is killed by the loan shark who made the initial
deal with Gus.
Most courts agree that “impossibility” is not a defense to conspiracy. The
conspirators cannot escape punishment by arguing that they would not
have been able to accomplish their criminal objective.
SPECIAL PROBLEMS
Let’s say you enter into a conspiracy to rob a bank. You provide some
key information about the bank’s security, but you’re out of the country
84 The Crime Junkie’s Guide to Criminal Law
when the bank is robbed. You could still be held liable for larceny if a
coconspirator stole a car to use as a getaway vehicle as well as assault if a
coconspirator assaulted a security guard at the bank.
You wouldn’t be liable for all crimes committed by the coconspirators.
If during the robbery one of the coconspirators sexually assaulted a per-
son in the bank, you would not be charged with that crime since it was not
a reasonably foreseeable part of the robbery and was not committed to
further the robbery.
Think about it; you can be liable for crimes of your coconspirators, even
if you took no part in these other crimes, even if you had no knowledge
whatsoever about them. The rule is under attack in some states and may
be limited in others, but it would be wise for any potential conspirator to
remember the saying: in for a penny, in for a pound—or twenty to life.
One limitation on this rule involves withdrawing from the conspiracy.
While simply withdrawing is generally not a defense to the conspiracy
charge itself, it can prevent liability for other crimes committed by the co-
conspirators. To be effective the withdrawal must go well beyond saying
“I quit” silently to yourself. The conspirator must communicate this re-
nunciation to other members of the conspiracy in such a manner and time
that they would also have time to reconsider their participation. If there is
an effective withdrawal, the conspirator will still be liable for the conspir-
acy (unless she goes further and thwarts the objective of the conspiracy),
but will not be liable for crimes committed by other members of the con-
spiracy.
they can focus on statements and actions of the defendant where they
have strong evidence and ignore areas where their evidence is weak.
Critics of conspiracy law note that it has historically been used to pros-
ecute controversial activities by workers and activists. They also point out
that because it emphasizes “thought” more than “acts,” there is an in-
creased danger that people will be prosecuted for what they say and who
they associate with, which undercuts basic principles of our justice sys-
tem. Despite its controversial nature, conspiracy law is alive and well and
being used in courtrooms (and television dramas) across the country.
Legal Briefs
Conspiracy—an agreement between two or more persons to commit a
crime.
Inchoate crimes—planning or early-stage crimes; solicitation, attempt,
conspiracy.
Wharton rule—no conspiracy unless more parties participate than are
necessary to commit the crime.
Chain conspiracy—a series of agreements that are all part of a single
plan.
Hub-and-spoke conspiracy—one person (the hub) enters into separate
agreements with others.
Overt act—almost any action that shows the conspirators were taking
steps to complete the crime.
Withdrawal—traditionally not a defense; modern view is that it can be a
defense where the defendant thwarts the success of the conspiracy (by
informing the police) and completely and voluntarily renounces the
conspiracy.
Chapter 16
Attempt
Law & Order did a show in 2006 (“Public Service Homicide,” #376)
about a tabloid television show called Hard Focus that used decoys
from a group called “ScumWatch” to identify online pedophile
predators and lure them to a location where they would be filmed
and interviewed (sound familiar?). When a man, Carl Mullaly, is
murdered within hours of being outed on the nationally televised
Hard Focus, Detectives Martin and Govich are on the case.
In true Law & Order tradition, the case is more complicated than a
vigilante killing a pedophile. It turns out that a producer from Hard
Focus was also trying to build interest in a show called Confront and
Heal, in which people who had been molested as children confronted
their abusers. This producer, Ellie Harper, arranged for one of Mulla-
ly’s previous victims to meet with him. Harper, knowing this victim
wanted to kill Mullaly, actually gave her a knife and a camera to take
to the meeting. At the show’s conclusion, Harper was convicted of
“depraved indifference” murder for, as McCoy said, “putting two
trains directly on a collision course.”
Usually when someone tries and falls short of the mark, we encourage
them to give it another shot; after all, that’s just good manners. Not so in
criminal law. We make it a crime to attempt to commit a felony or misde-
meanor. (Which is somewhat mean-spirited—the person’s self-esteem is
already shaken because he didn’t get the job done, and now you’re telling
him he’s not just a loser, he’s a criminal.)
A criminal attempt is an act done with the intention of committing a
crime that for some reason does not result in completing the crime. Criminal
law doesn’t punish people for thoughts, so an attempted crime must be
based on more than the intent to commit a crime or some statement about
wanting to commit a crime; there must also be a sufficient step toward the
attempted crime. This fits with our basic definition of a crime as having
both a mental state (here the specific intent to commit the attempted crime)
and a physical act (here the step toward committing that crime).
Mental State
Although this is a bit tricky, attempt actually requires two intents: (1) the
intent to do the act that results in the attempt; and (2) the specific intent to
commit the crime attempted.
Suppose your neighbor isn’t home and you decide to take his riding
mower to cut your grass with the intention of returning it as soon as you’re
88 The Crime Junkie’s Guide to Criminal Law
done. As you’re entering his garage, he pulls into the driveway and calls
the police. Have you committed attempted larceny? No. You certainly
intended to walk over there and take the mower, but you lacked the specific
intent to permanently deprive your neighbor of his property (the require-
ment for larceny), so you did not attempt a larceny.
Let’s use the infamous case of Claus von Bulow to illustrate the dual
intents necessary to prove an attempt. In this well-known tale of familial
bliss, American heiress and socialite Sunny Crawford married Claus von
Bulow in 1966. By 1980 there was serious tension in their marriage. On De-
cember 21, 1980, Sunny and family were celebrating Christmas at the family
mansion in Newport, Rhode Island, when she mysteriously became ill
and lapsed into a coma. The coma was attributed to hypoglycemia from
an insulin injection. Claus argued in favor of turning off life-support
means, but surprisingly Sunny continued to breathe on her own (although
she remained in a persistent vegetative state).
The authorities investigated the circumstances surrounding Sunny’s
coma and presented evidence to a grand jury. The grand jury apparently
found enough motive (the terms of Sunny and Claus’s prenuptial agree-
ment said that he would get nothing if they divorced, but $14 million if he
was a widower) and physical evidence (a black bag with drugs and a sy-
ringe with traces of insulin in it) to indict Claus on charges of attempted
murder. The prosecution’s theory was that Claus von Bulow intentionally
gave Sunny an injection because he specifically wanted her dead so that
he could inherit a fortune.
This case meets the dual intent criteria for an attempt. Claus meant to
give Sunny the insulin injection, and he specifically meant to murder her.
Claus was convicted after a very public trial, but the conviction was over-
turned on appeal (leading to an excellent performance by Jeremy Irons as
Claus von Bulow in the movie Reversal of Fortune).
Sufficient Step
In order to show that the defendant was actually trying to accomplish the
criminal activity, the state needs to prove some sufficient act or step toward
committing the crime. The obvious question is what constitutes a sufficient
act; in other words, how close does the defendant have to come to commit-
ting the crime to call it an attempt? Courts have struggled with this issue,
coming up with a variety of “tests” to answer the question.
Tests have focused on what remains to be done before the crime can be
completed—has the defendant gone far enough in preparing for the crime
that the only thing left is to actually commit the crime? Other analyses ask
Attempt 89
what the defendant has already done and try to determine whether the
defendant would have ceased efforts to commit the crime but for some
intervening cause.
The Model Penal Code approach is more specific. It requires a “sub-
stantial step” toward committing the crime that shows “strong corrobora-
tion” of criminal purpose. The MPC also has a list of acts that the jury can
consider (if, of course, the prosecution proves they happened), among
which are:
These (and other acts like these) are the basis upon which a jury could find
that the defendant took a sufficient step toward the commission of the
crime to find him guilty of attempt.
One important point to make is that no matter the test used (a particu-
lar state’s or the MPC’s), the act required for an attempt is more substan-
tial than the “overt act” required for a conspiracy. A conspiracy only re-
quires an act that can actually be a fairly minor step toward completing
the conspiracy, while an attempt requires an act that moves significantly
toward the intended crime. An act that might suffice to prove a conspiracy
might not be substantial enough to prove an attempt.
BY THE NUMBERS
Defenses
An attempt is, by definition, a crime that didn’t happen. What if the crime
couldn’t have happened; what if it had been impossible for the crime to be
completed? Is that a defense to a charge of attempt? Leave it to lawyers to
90 The Crime Junkie’s Guide to Criminal Law
make such distinctions, but the general rule is that “legal impossibility” is
a defense to attempt, but that “factual impossibility” is a not a defense.
“Legal impossibility” arises when a person has a misunderstanding of
the law. Say that you try to enter a state park at night believing that the
park is closed to the public after dusk, but for some reason you don’t make
it (your car breaks down). In fact, the park is open twenty-four hours a
day. You are not guilty of attempting to trespass since your mistaken belief
as to the law does not create any criminal liability. You have not actually
shown any willingness to do anything contrary to public safety, and you’re
not much of a threat.
For an example of factual impossibility, let’s look back at Dateline: To
Catch a Predator. In each of the instances shown (and there were dozens of
them), the man came to the home thinking that the person with whom he
been chatting was a child. The fact that the person the defendant was talk-
ing to was actually an adult made the crime of child molestation a factual
impossibility.
While none of these men could have committed the crimes they in-
tended, each clearly demonstrated his dangerousness to society and the
fact that he was willing to act in a manner meant to commit a crime (some
of these men drove for hours to get to the meeting places; many also
brought alcohol and condoms). The law simply won’t allow these men to
escape punishment just because the facts weren’t exactly how they believed
them to be.
What about a withdrawal? If the defendant has done some act that is a
substantial step toward completing the crime, may she escape punishment
by abandoning her plan? The traditional answer was “no”; once the defen-
dant demonstrates her dangerousness by taking a substantial step toward
the crime, the attempt has already taken place.
The Model Penal Code and modern statutes do allow a defense of aban-
donment provided:
Punishment
The Model Penal Code authorizes the same punishment for an attempt as
for the completed crime. Some states impose half the punishment that
Attempt 91
would be imposed for the completed crime. In the event that the crime is
completed, the attempt is said to “merge” with the completed crime, and
a defendant cannot be convicted of both an attempt and the completed
crime.
Legal Briefs
Attempt—an act done with the intention of completing a crime that for
some reason does not result in completing the crime; the defendant
must have both the intent to do the act that results in the attempt and
the specific intent to commit the crime attempted.
Sufficient step—Under the Model Penal Code it is a substantial step to-
ward committing the crime, which shows strong corroboration of crim-
inal purpose; other courts look at whether the defendant has gone far
enough that the only thing left is committing the crime; still other courts
look at what the defendant has already done to determine whether she
would have ceased efforts to commit the crime save for some interven-
ing cause.
Legal impossibility—a valid defense to attempt involving a misunder-
standing of the law such that the “attempt” does not violate any law.
Factual impossibility—not a defense to attempt; where the defendant
acts to cause a result that would be a crime, but because of things he
does not know it is not possible to commit the crime.
Chapter 17
Accomplice Liability
It seems like every time the police are on a manhunt (person hunt?) on a
TV show, they eventually burst into someone’s apartment, summarize the
person’s connection to the sought-after criminal, and proceed to squeeze
information out of the initially tough-talking sap by threatening to lock
him up as an “accessory” or an “accomplice.” The sap almost instantly
caves because, hey, who wants be convicted when they really didn’t do
anything but give a little aid and comfort to an ex friend/lover/cellmate/
pen pal?
It sounds like a pretty good threat. The police officers on the shows
make it seem that a person is an accomplice if he did anything at all to help
the “perp” in any way. But, while accomplice liability is a fairly broad
concept, it’s not quite as elastic as it can sound on TV.
The Basics
People participate in criminal offenses in varying ways and to varying
degrees. One person might be on the lookout for tipsy patrons leaving a
bar, and his partner-in-crime might be the one to hold the gun and say
“Put ’em up!” The person who actually commits a crime (in this case, rob-
bery) is referred to as the principal, and anyone who assists him in perpe-
trating the crime is an accomplice.
Responsibility for a crime is not limited to the person who actually
commits the offense. We also believe in punishing those who encourage
the defendant to commit the crime, those who assist in perpetrating the
crime, and those who interfere with the apprehension of the offender.
Accomplice Liability 93
Traditional Concepts
In the old days, the parties to a crime were meticulously classified. The
person who actually committed the crime was the “principal in the first
degree.” Others involved in the crime were called the “principal in the
second degree,” “accessory before the fact,” “accessory after the fact,” or
“accessories for that cute little black dress.” If convicted, these people were
guilty of the same offense as the perpetrator of the crime (the principal in
the first degree) and subject to the same punishment.
In this era of very formal pleadings, it was vitally important that the
prosecution properly classify those involved in the crime; if a person was
charged as an “accessory before the fact” and the evidence showed that
she was an “accessory after the fact,” she could not be convicted. This type
of formalism proved to be needlessly confusing.
Modern Statutes
One major change is that a person who provides assistance after a
crime (what used to be called an “accessory after the fact”) doesn’t face
the same punishment as the principal. Those who provide assistance
after the crime are usually guilty of a separate offense that generally carries
a lower penalty.
To be found guilty of this crime (sometime called “harboring a fugitive”
or “obstructing justice”), the defendant must have assisted someone who
completed a felony, and the defendant must have known that the person
committed a felony. The assistance must have been given directly to the
felon with the intent of impeding the police.
Basically, if you knowingly help someone evade capture or prosecu-
tion, you can be charged. For example, Seth Jeffs, younger brother of po-
lygamist Warren Jeffs (the leader of the Fundamentalist Church of Jesus
Christ of Latter-Day Saints who was charged with arranging a marriage
94 The Crime Junkie’s Guide to Criminal Law
the car. Graham then tracked her down and shot her in the head. They
disposed of their clothes and went home. Although Graham actually shot
and killed Jones, was Zamora any less responsible?
The basic requirements of accomplice liability are that the person aided
or abetted the criminal act, that she did so with the necessary intent, and
that the crime was completed. Aiding or abetting means that the person
encouraged the commission of the crime. Essentially, any significant assis-
tance meets the standard. Acts like distracting potential witnesses or
providing helpful information certainly can count, as would driving the
getaway car for a bank robber. The assistance does not have to be critical
or essential to committing the crime; even if it can be shown that the crime
would have been committed without the accomplice’s assistance, the
accomplice may still be convicted.
In the Jones case (which received great national attention and was made
into an NBC movie, Love’s Deadly Triangle: The Texas Cadet Murder), Zamora
clearly aided and abetted the murder. Her assistance included both plan-
ning and initiating the attack.
It is also a crime to incite or encourage a felony even if no practical,
physical assistance is given. Of course, the criminal has to be aware of the
encouragement; else it could hardly be encouraging, could it? Just being
present at the crime scene probably is not enough to be considered incit-
ing the crime, unless there is a prior agreement that the person will help
in the commission of the crime if necessary. That is just the kind of
confidence-giving measure that would likely encourage someone to
commit a crime.
Zamora plainly incited Graham to kill Jones. In his confession, Graham
said that Zamora actually demanded Jones’s death to satisfy her need for
vengeance; Zamora apparently made it clear to Graham that the only way
to prove his love for her was to kill her rival. In fact, it could be argued
that simply by agreeing to be in the car, Zamora gave encouragement to
Graham.
96 The Crime Junkie’s Guide to Criminal Law
Mental State
The mental state required for accomplice liability is twofold. First, the
accomplice must have the state of mind necessary to commit the crime
herself; in other words, the accomplice must have the same state of mind
as the principal. In our example, Zamora clearly intended Jones’s death
every bit as much as Graham did.
Second, the prosecution must show that the accomplice’s assistance or
encouragement was given with the affirmative desire that her actions
would have the assisting or encouraging effect. It is not enough to show
that the defendant simply knew that her conduct would facilitate the crime.
Zamora obviously meets this second mental state requirement as well.
Scope of Liability
The basic rule is that the accomplice is liable not only for the crime she
aided or incited, but also for all reasonably foreseeable crimes that result
from the intended crime. If you are the lookout for a bank robbery during
the course of which a security guard is killed, you can be found guilty as
an accomplice not only of the robbery but also of the murder (which was
a reasonably foreseeable result of an armed bank robbery). Some courts
limit liability to what crimes you actually anticipated, not those that you
should have considered.
Defense
An effective withdrawal from the crime is a defense to accomplice liability.
The withdrawal must occur prior to the commission of the crime or the
time when stopping the crime would be impossible. Where actual physi-
cal assistance was given (aiding and abetting), the withdrawal must in-
clude taking action to render the assistance ineffective (where you pro-
vided a gun for a robbery, taking the gun back). Where only encouragement
was given (inciting), the withdrawal can be accomplished by a renunciation
Accomplice Liability 97
Legal Briefs
Principal—the person who actually commits a crime.
Accomplice—a person who aids or abets the commission of a crime.
Requirements for accomplice liability—must provide substantial assis-
tance to the principal; must have the mental state necessary for the crime
and must have intended that her actions would have an encouraging ef-
fect on the principal.
Scope of liability—basic rule is that the accomplice is liable not only for
the crime she aided, but also for all reasonably foreseeable crimes that
result.
Defense to accomplice liability—withdrawal is a defense; must be prior
to commission of the crime and include rendering assistance given inef-
fective or renouncing encouragement.
Chapter 18
Justification
Self-Defense
In a first season episode of Shark called “Sins of the Mother,” the police are
called to the apartment of low-life drug dealer Jeremy Clinton, who has
been killed by two gunshots to the chest. On the scene, the police find mar-
ried socialite Sarah Metcalfe. She claims to have been carrying on an affair
with Clinton (now where have I heard that before?) and says that when
she came over to break it off, Clinton attacked her, leaving her with no
choice but to shoot him with his own gun in self-defense.
The law of self-defense says that a person charged with an assault crime
(simple assault all the way up to murder) can claim self-defense if she used
the amount of force that reasonably seemed necessary to protect herself from the
imminent use of unlawful force on her.
Justification 99
UNLAWFUL ARRESTS
Importantly, the threat must have been of physical harm—the fact that a
romantic rival threatened your relationship by flirting with your boyfriend
wouldn’t legally justify you hitting her with a barstool. And the threat of
physical harm must have been imminent. This means that the person
threatening the defendant must have appeared both willing and able to
harm the defendant. The person asserting self-defense isn’t required to
wait until the attacker actually lunges with the knife, but self-defense
would have to be based on more than the fact that the alleged attacker
stood up from his seat with a mean look on his face. In assessing whether
the threat of physical harm was imminent, all the circumstances surround-
ing the incident, including threatening language, presence of weapons,
and physical movements may be considered. There are no hard-and-fast
rules here; common sense and a basic understanding of human nature
decide the issue.
Going back to our Shark episode, it appears that Sarah Metcalfe met
the requirements for using self-defense. Clinton’s assault on her was
plainly unlawful since all she did was tell him the affair was over. He
threatened actual physical harm, threatening to kill her, and it seems likely
that Sarah could reasonably believe that she needed to use force to protect
herself.
But Sebastian Stark sees a way to blow Sarah’s claim of self-defense out
of the water. He focuses on the fact that Clinton was shot twice; in his
view, the first shot would clearly have disabled Clinton and the second
shot was plainly because Sarah Metcalfe wanted Clinton dead. So while
the first shot may have been in self-defense, the second shot was not nec-
essary to protect Sarah from any physical harm—the second shot was
murder, not self-defense.
Deadly Force
There is a rule of proportionality that applies to self-defense. Just as it
sounds, the defender cannot use force that is excessive with regard to the
threatened harm. A person may use nondeadly force against a nondeadly
threat or even a deadly threat. But a person is not justified in using deadly
force against a nondeadly threat. Again, this is common sense; the law
simply won’t condone a shooting death in response to a rude push after a
fender-bender. The bottom line: deadly force may only be used in situa-
tions where the defendant reasonably believed that the person was about
to inflict death or serious bodily injury on her.
Justification 101
DEADLY FORCE
Despite its name, the use of deadly force does not have to result
in a death. It is usually defined as force that was intended to cause
death or serious bodily injury (not a black eye, but probably a serious
concussion) or which created the substantial risk of death or serious
bodily injury (swinging a tire iron at someone’s head, shooting at
someone, etc.). Even if the defendant claims that he shot at the at-
tacker simply to scare him or at most “wing” him, shooting at a per-
son obviously creates a very real risk of death or serious injury and
will almost always be considered use of deadly force.
Consider the Minnesota case where a hunter shot and killed six deer
hunters and wounded two others. The defendant, Chai Soua Vang, was
hunting when he got lost and went into a tree stand on private property.
Terry Willers arrived and asked Vang to leave. Other hunters, companions
of Willers’, arrived and also asked Vang to leave, threatening to report him
to the game warden for trespassing.
Vang claimed that he acted in self-defense when he opened fire because
one of the hunters angrily shouted racial slurs at him while another fired
a shot at Vang. The surviving hunters testified that no one in the group
fired until Vang had already started shooting. Crucially, during the trial,
Vang said that one of the hunters deserved to die because he had given
Vang “the finger” and called him names. The jury rejected Vang’s claim of
self-defense, apparently believing that Vang used deadly force in response
to the use of racial slurs and angry words.
In addition, simply because someone tries to use deadly force does not
automatically allow the defendant to use deadly force in response. The
deadly force used in self-defense must have been necessary. If the defen-
dant realizes that nondeadly force will protect her, she is required to use
only that level of force.
Duty to Retreat
The general rule is that there is no duty to retreat before using nondeadly
force in self-defense, even if retreating could be done safely and at no
further risk to either party. When rap singer Foxy Brown kicked an em-
ployee of a nail salon and smacked a second worker in the face during an
argument over payment, either worker might have been able to flee to a
secure spot in the store, but they were not required to and would have
been justified in using force to repel Brown’s attack.
102 The Crime Junkie’s Guide to Criminal Law
A more difficult question arises with respect to the use of deadly force.
Is a defendant justified in using deadly force if he had an opportunity to
safely retreat? Some states require the defendant to show that he had no
opportunity to retreat before using deadly force. The underlying principle
is that human life should only be jeopardized where absolutely necessary.
Even in states that require retreat, there are significant limitations on
the duty. Retreat is commonly only called for where it can be done in com-
plete safety. More than likely, a person wouldn’t have time to calmly and
quietly consider the possible alternatives to using a rock to bash the head
of the mugger holding a knife; the test is what the defendant reasonably
believed about retreat possibly increasing the risk of injury to himself.
Usually retreat is not required if the defendant is attacked in her own
home. The home is a person’s “castle” and is itself a sanctuary from vio-
lence; to demand retreat from this haven would be unreasonable. In epi-
sode #92 of Without a Trace, Agent Malone and company are looking for
the Jordano family, who are reported missing after a relative goes to their
home and finds a broken front door and blood all over the living room. As
usual, they were gone “without a trace” (unless you count the blood and
signs of a struggle).
It turns out that the blood was not from the family at all. Rather, the
father, Ted Jordano, shot and killed a hit man who broke into the family
home at night carrying a gun with a silencer. The hit man was after Ted’s
son Dylan, who happened to witness a member of an Albanian gang kill a
man in an alley. Based on the information Ted had from his son, Ted armed
himself and waited for the attacker. Maybe it would have been smarter for
Ted to call the police, but the law would probably not require him to re-
treat from his own home. In fact, Ted would probably not even have faced
any charges (he eventually agreed to have his son testify against the gang
in exchange for placement in the witness protection program). Who could
find fault with a father protecting his home and young son from a killer?
COHABITATION
should have the right to defend herself against an attack and shouldn’t be
required to “give in” to an attacker. Nevertheless, the fact that retreat could
have been made in complete safety can be considered in determining
whether the use of deadly force was “reasonably necessary.”
It’s not clear in the TV world of Shark whether there is a duty to retreat.
Obviously if there were, Stark’s case against Sarah Metcalfe would appear
to be stronger because he could argue that Sarah could have retreated in
complete safety while holding the gun after having already shot and dis-
abled Clinton.
lover. They were married when Susan was twenty-five and had a mar-
riage that was dysfunctional in many ways. In fact, they were in the pro-
cess of getting divorced when Felix was killed. Prosecutors theorized that
Susan was distraught because a judge had granted custody of the Polks’
son to Felix and had given Felix the family home. According to the prose-
cution, Susan was dangerously angry when she went to see Felix at the
family home that night.
Susan Polk defended herself at the trial. One of her sons testified
against her while another son testified on her behalf, saying that he had
also suffered emotional and physical abuse at the hands of his father.
SECOND CHANCES
Defense of Others
Generally, a person (the “hero”) is justified in using force to protect someone
else (a third party) from an unlawful use of force by an aggressor (the “bad
Justification 105
guy”). Essentially, the hero who intervenes on behalf of the third party
places herself “in the shoes” of the third party and can use force to the
extent that the third party would be justified in using force (i.e., where the
bad guy’s use of force is unlawful).
In 2006, Mary Winkler was accused of killing her preacher husband
with a shotgun in their home in Tennessee. In his opening statement, her
lawyer said that Mary was actually trying to protect the couple’s one-year-
old daughter from her abusive husband when the shotgun she was point-
ing at him accidentally went off. The defense also argued that Mary had
suffered years of physical and sexual abuse at the hands of her husband.
The prosecution contended that Mary was actually trying to hide a check-
kiting scheme from her husband and that she killed him before they were
scheduled to meet with their local bank. Mary Winkler was convicted of
voluntary manslaughter, and in May 2007 she was sentenced to three
years in prison.
In our Shark episode, it turns out that the bad person, Clinton, was actu-
ally shot twice by different guns. Sarah’s husband Richard explains that
he was the second shooter. He suspected that Sarah was having an affair
and followed her to Clinton’s apartment. When he got there, he witnessed
Sarah and Clinton struggling over a gun. The gun discharged, hitting
Clinton. Nevertheless, Clinton continued to come after Sarah and Richard
had no choice but to defend Sarah’s life by shooting Clinton. It seems like
that scenario could be defense-of-others (we later discover that Sarah and
Richard’s daughter Jordan, who was actually fathered by Clinton back
when Sarah was a drug-using prostitute, shot Clinton and that it was
Sarah who shot Clinton the second time, although it was Jordan’s shot that
actually killed Clinton—it all made sense in the show).
Can you claim defense of others when you don’t specifically know who
it is you are defending? You can try. Imagine a scenario where a crusader
kills a madman who might have gone on to kill hundreds or even thou-
sands of innocent people if he were not stopped. Surely that must qualify
as defense of others, right? Not according to the jury in episode #144 of
Law & Order: SVU.
In that episode, AIDS prevention activist Gabriel Thomason brutally
murdered two gay men who were drug addicts and carriers of a new and
untreatable strain of HIV and who both continued to have unprotected
sex with multiple partners. Thomason’s own brother was infected by one
of the murder victims. Thomason freely confessed to the murders, but ar-
gued that he did it in defense of the other hundreds of men who could
ultimately have been infected with the new strain of HIV. In fact, in the
closing argument, Thomason’s attorney compared Thomason’s situation
106 The Crime Junkie’s Guide to Criminal Law
Defense of a Dwelling
If our houses are our castles, we should be able to kill any knave who tries
to breach our walls, right? In the “good old days” you could use deadly
force to prevent someone from even entering your home (provided you at
least warned the person to stop). Not anymore.
Generally, modern statutes allow the use of deadly force only when the
defendant reasonably believes the intruder intends to commit a felony or
harm someone in the dwelling. Sometimes the use of deadly force is limited
to cases where the defendant reasonably believed the intruder intended to
commit a felony (so, if it was clear that the defendant was going to hit
the defendant—a misdemeanor simple assault—the defendant could not
lawfully shoot and kill the intruder).
YOUR “STUFF”
Making Arrests
Making an arrest can sometimes require the use of force (except in L.A.,
where it seems that the police are required to beat the snot out of the
suspect). The basic rule is that a police officer can use nondeadly force to
arrest anyone she reasonably believes has committed a misdemeanor or
a felony and can use deadly force where she believes the person has
committed a felony. As long as the officer reasonably believed the person
arrested had committed the crime, the use of force is justified even if
the arrested person is later found to be innocent.
The modern trend, however, has been to limit the use of deadly force
to dangerous felonies (kidnapping, rape, murder, burglary, etc.). The ratio-
nale is that the defendant has already shown by his conduct that he is a
danger to society, and greater force, even deadly force, may be used to
protect us all.
In cases where the officer is met with violence in trying to make the
arrest, she may use force in her defense, perhaps even deadly force. However,
this situation would actually be controlled by the laws of self-defense.
Legal Briefs
Justification—situations where normally criminal behavior is accepted,
even encouraged.
Self-defense—the right to use the amount of force reasonably necessary
to protect oneself from the imminent use of illegal force.
Deadly force—force that was intended to cause death or serious bodily
injury or which creates a substantial risk of death or serious bodily in-
jury; does not have to result in death.
Duty to retreat—generally there is no duty to retreat before using non-
deadly force in self-defense; some states allow deadly force only where
there was no safe avenue of retreat.
Regaining the right to self-defense—aggressor can regain right to self-
defense where she withdraws from the confrontation or where she was
using nondeadly force and the victim responds with deadly force.
Defense of others—a person who intervenes on behalf of a third party
places himself in the shoes of the third party and can use force to the
extent the third party could.
Defense of dwelling—can use deadly force only where the defendant rea-
sonably believed the intruder intended to commit a felony or harm
someone in the dwelling.
Chapter 19
Necessity
Necessity may be the mother of invention, but it is also sometimes the
mother of crime. A person who has been accused of a crime may make a
claim of necessity (“I had to do it”) if he can show that committing the
crime prevented a greater harm. Usually this defense works when the de-
fendant faced the choice of committing a relatively minor offense or al-
lowing himself or others to suffer a great harm (exceeding the speed limit
in order to get a seriously injured child to the emergency room).
Necessity is closely related to the defense of duress. The major distinc-
tion between the two is that necessity applies when the pressure to com-
mit the crime is created by the environment or physical forces of nature.
If another person is exerting the pressure, the proper defense would be
duress.
and that the bullet took a “crazy ricochet” after hitting Slepian in the
shoulder). Essentially, Kopp’s argument was that he committed a crime to
prevent a greater evil.
Although it seems like this is a duress defense, since Slepian is a person,
Kopp was not saying that Slepian himself put pressure on Kopp to shoot,
but rather that the broader society or environment that allows abortions
made him do it. And therein was the problem with Kopp’s necessity argu-
ment. Abortions were legal in New York, and the “evil” that he sought to
prevent was not one recognized by society—so it was not possible to jus-
tify the crime Kopp committed. In 2003, Kopp was sentenced to twenty-
five years to life for the murder of Slepian.
BREAK OUT
Duress
Legal duress occurs when a threat is made to use violence against the de-
fendant (or another) unless the defendant commits a crime. The threats
made by the other person must be of some immediate, serious physical
harm to the defendant or some other person (perhaps even a stranger to
the defendant). Of course, the defendant must be aware of the threat and
must have a reasonable belief that the threat is sufficiently serious to be
coercive (it won’t work if the defendant says that he robbed the store be-
cause a bully threatened to give him a “wedgie” if he didn’t).
As with necessity, the defendant must show that he had no opportunity
to avoid the harm by some legal alternative (going to the police, etc.). And
in no case is duress a defense to intentional murder; society is never going
to say that taking a life is the lesser of two harms (although the defendant
could introduce evidence of coercion to negate an element of a murder
charge, such as premeditation).
A plausible scenario for a duress defense was portrayed in the “Money
for Nothing” episode of CSI: Miami (#41). The show opened with an armored
Necessity and Duress 111
car on its way to the Federal Reserve Bank being attacked and robbed in
the streets of Miami. Coincidentally, Horatio was nearby and he heroically
tried to foil the machine gun attack by shooting one of the robbers with his
pistol. The remaining robber escaped with $3.2 million, but the supremely
effective CSI detectives used their high-tech wizardry to capture him
shortly thereafter in a swamp. Much to their surprise, they found that the
money they recovered was counterfeit.
Horatio and the CSI team eventually discover that the security guards
transporting the money switched the real currency for the fake stuff just
before the unrelated armed robbery. It turns out that the previous night
one of the security guards, Paul Donlon, received a phone call in which he
found out that his younger sister, Mary, had been kidnapped. The kidnap-
pers demanded that Paul make the switch. The only words he heard his
sister say were, “Do what they say or they’ll kill me!”
This is exactly the sort of threat that makes for a duress defense; in these
circumstances, a reasonable person might believe the threat would be car-
ried out and feel compelled to avoid that outcome by doing something il-
legal. The question would be whether Paul had a reasonable alternative to
committing the larceny. Could he have called the police or at least alerted
the armored car company? (We later find out that Mary was in on the kid-
nap plan and intended to flee the country with the money—poor guy,
used by his sister and arrested by Horatio.) Paul is marched out of the CSI
offices in handcuffs, and Horatio assures Paul he’ll be fine in prison. Better
advice to Paul would have been to get a good lawyer and argue duress.
Legal Briefs
Necessity—a justification defense where the defendant argues that he
committed the crime to avoid an imminent threat of harm from his
surroundings.
Duress—an excuse defense where the defendant argues that he committed
the crime to avoid an imminent threat of physical harm from another.
Chapter 20
Entrapment
From the time we are children we are told that creativity is a good thing
and that we should engage in inventive thinking whenever we can. How-
ever, criminal law is one place where creativity can be problematic. For
instance, when the intent to commit a crime originates not with the defen-
dant, but rather from the ingenuity of the police, we call it entrapment and
don’t punish the defendant.
In “The Wrath of Khan” episode of Shark, Stark and his minions go after
Amir Khan, a billionaire import-export businessman who also happens to
be an international arms smuggler (isn’t that always the way?). Khan has
been selling explosives and “surplus Taliban” weapons to L.A. gangs, and
the explosives he sold have been traced to three recent car-bombings and
nine deaths. The only problem is that the FBI wants him, too (although as
we later find out, not to prosecute Khan but to protect him as a valuable
spy).
To prevent the feds from snatching Khan, Stark hurriedly tries to finish
a six-month police investigation into Khan, which has included placing a
confidential informant in Khan’s employ. Stark wants Khan to make one
more sale of C-4 explosives to undercover officers so they can arrest and
prosecute him. While the team outlines the plan to the two undercover
agents, DDAs Casey Woodland and Raina Trey say that although the de-
fense will “argue entrapment,” they don’t have time to pull back if Khan
gets suspicious, so they have to push Khan into making the sale.
There are two elements to an entrapment defense:
1. The criminal intent must have originated with law enforcement; and
2. The defendant must not have been predisposed to commit the crime
prior to coming into contact with law enforcement.
Entrapment 113
There are two basic ways courts assess entrapment defenses. The tradi-
tional way is to look subjectively at the defendant’s actions and determine
whether police inducements or the defendant’s own predisposition caused
the defendant to commit the crime. Importantly, the simple fact that the
police presented the defendant with the opportunity to commit the crime
is not in itself entrapment (it is not entrapment if an undercover officer
buys drugs or stolen property).
The key issue is the defendant’s predisposition; if the evidence shows
that she was predisposed to commit the crime (had previously committed
related offenses, jumped at the opportunity, etc.), the level of police in-
ducement is irrelevant. However, where there is little or no evidence of
predisposition and it can be shown that the police had sufficient contact
with the defendant prior to the crime (repeated entreaties, providing
means and information helpful to committing the crime, etc.), entrapment
may be a valid defense.
In our Shark episode, it sure sounds like entrapment when the DA’s of-
fice encourages the police to really “push” Khan into selling the illegal
explosives. On the other hand, the six-month investigation that produced
evidence that Khan had previously sold arms to L.A. gangs surely seems
to show that the criminal intent did not originate with the police and that
Khan was very much predisposed to commit the crime. It seems that any
level of inducement used by the undercover officers short of putting a gun
to Khan’s head would still not support an entrapment defense.
The other test that courts sometimes apply is an objective test that fo-
cuses exclusively on the police officer’s actions and ignores the defendant’s
subjective state of mind. Under this approach, the focus is not on whether
the “innocent” defendant was induced to commit the crime, but rather
whether the police overstepped their bounds. The question is whether the
police conduct was such as was likely to cause an innocent person (not this
defendant) to commit the crime. If it appears that the average person with
no predisposition to commit the crime would have been impelled to act by
the police, the defendant has been entrapped. The defendant’s own pre-
disposition is not relevant.
There are two important limitations on this defense, no matter which
test is used. The first is that entrapment is generally not applicable to seri-
ous crimes like murder or rape or even serious assaults. The principle is
that no matter from where the intent to commit these dangerous crimes
arose, the defendant is to be held responsible for violating social norms.
The second limitation on the defense is that only the police and their
agents can “entrap.” A defendant cannot argue that a private citizen
entrapped her unless the private citizen is actually working for the police
(for example, an informant who is paid by the police). It wouldn’t be
114 The Crime Junkie’s Guide to Criminal Law
Legal Briefs
Entrapment—defense where the criminal intent originated with law en-
forcement and the defendant was not predisposed to commit the crime
prior to contact with law enforcement.
Subjective test—looks at the defendant’s actions to determine whether
law enforcement inducements or the defendant’s own predisposition
caused the defendant to commit the crime.
Objective test—focuses exclusively on the actions of law enforcement to
see if their actions would have caused an innocent person (not this
defendant) to commit the crime.
Chapter 21
Intoxication
Like college students, defendants will often try to avoid responsibility for
their actions by claiming that they were too drunk or high to know what
they were doing. For better or worse, drug and alcohol intoxication is
common in our society, and since impaired thinking often leads to bad
decisions, it’s no surprise that alcohol and drugs frequently play a role in
criminal activity. It’s also no surprise that criminal law has devised rules
to handle these claims. Although intoxication usually involves alcohol or
drugs, the rules apply even to prescription medicine and the like.
Voluntary Intoxication
The traditional rule was that voluntary intoxication was irrelevant to
criminal liability. If you went out and got roaring drunk and assaulted a
116 The Crime Junkie’s Guide to Criminal Law
police officer, robbed a store, or stole a wallet, you weren’t able to claim
that Jim Beam made you do it (unless you have an actual friend named
Jim Beam who coerced you, in which case you might have a duress de-
fense). That’s still the case today. As with college guys caught cheating on
their girlfriends, being voluntarily drunk or high is not a defense to any
crime.
Nevertheless, many states will allow evidence of voluntary intoxication
to negate the mental state required for certain crimes (technically, this isn’t
a “defense” since what the defendant is really doing is challenging whether
the prosecution has proved the elements of its case). Generally, courts only
allow voluntary intoxication to negate the specific intent required to com-
mit crimes (like assault with the intent to murder, which requires the spe-
cific intent to kill). A defendant could offer proof that his intoxication left
him without the ability to form a specific intent to kill.
Where the crime is a general intent crime (simple assault), voluntary
intoxication cannot negate the general intent requirement and has no bear-
ing on criminal liability. The same goes for strict liability crimes (statutory
rape) where voluntary intoxication is likewise irrelevant.
Involuntary Intoxication
How many times has a co-ed with a hangover been scolded by a signifi-
cant other or parent with these words: “Did someone put a gun to your
head and make you drink eighteen Jell-O shots last night?” While the an-
swer is generally a sheepish “no” followed by a plea to close the shades
and stop shouting, that’s precisely the situation where the criminal law
would give you a break.
The basic rule is that involuntary intoxication is a defense to liability if
it rendered the person insane under the insanity test applied in that state.
Intoxication is involuntary if the defendant did not know the substance
was intoxicating or he consumed it under duress (someone held a gun to
him and ordered him to take the drugs).
There is a question as to whether a permanent impairment to the brain
caused by repeated voluntary intoxications (a lifelong drinking problem)
can be the basis for an insanity defense. Some states would probably allow
the defense; others would not.
Legal Briefs
Voluntary intoxication—generally not a defense; in some situations can
be used to negate the mental state required for a crime.
Intoxication 117
Insanity
Let’s get some things out of the way right up front. Yes, many folks who
commit crimes probably have some form of mental illness (diagnosed or
undiagnosed). And, yes, perhaps the fact that a person commits a crime is
itself an indicator of mental abnormality (most “normal” people would
find choose a different course of action). But that’s not within the purview
of criminal law.
Legally, insanity means that the defendant is entitled to an acquittal
(usually by a finding of “not guilty by reason of insanity,” or NGRI) if at
the time of the crime he was so impaired by mental illness as to be insane
within the meaning of the law. In federal court and in most states, a person
acquitted by reason of insanity is automatically committed to a hospital
for some period of time. Usually the defendant will be held until he can
prove that he is no longer a danger to society. It is important to remember
that insanity is a legal term, not a psychiatric one, and that there may be
significant differences between the two.
COMPETENCY
they felt showed not only that she was insane when she committed the
murders, but also what caused it. But whether her insanity was caused by
the death of her father, postpartum depression, a change in medications, or
her having been abducted by space aliens, the only relevant finding the
second jury made was that she met the legal definition of insanity. In many
states mental retardation can render a person legally insane (if the person
satisfies the criteria of insanity).
PSYCHOPATHS
Various “tests” have been proposed that are based on one or both of these
factors, but since the workings of the human mind are understood imper-
fectly at best and the insanity defense has historically been such a polar-
izing social issue, many states have had difficulty settling on one “test” or
another.
Obviously there is a lot of room for interpretation under this test (a com-
mon criticism of all insanity tests). Courts have developed clarifications for
what it takes to meet this test; perhaps predictably, they often differ from
state to state. Nevertheless, certain key points are generally accepted.
If a defendant does not understand the actual real-world, physical con-
sequences of his action (he does not realize that a blow from a hammer can
injure a human skull), he probably meets the M’Naghten test (he doesn’t
understand the nature of his actions). Take the 2005 case of Charles McCoy
Jr., the Ohio man charged with shooting at two homes, a school, a car deal-
ership, and eight moving cars over a period of four months, killing one
person and causing widespread fear in central Ohio. His defense was that
because of severe paranoid schizophrenia and his refusal to take medica-
tions, he did not appreciate the wrongfulness of his actions when he seem-
ingly randomly opened fire over those four months (he eventually dropped
his insanity defense and agreed to serve twenty-seven years in prison).
What about a person who is suffering from delusions (false beliefs)? Is
that person entitled to an acquittal under the M’Naghten rule? For example,
what if McCoy had asserted that he was delusional and he thought the
people in the school, car dealership, cars, etc. were actually planning to kill
him. Under the M’Naghten rule, the question would be whether if things
had been as McCoy believed he would have been entitled to take the actions
he took. Here, the answer would be “no”; his belief that others were
planning to kill him did not give him the legal right to shoot them.
Suppose someone believes that her actions are morally right even if she
knows that they are criminal. For example, a woman who because of some
mental impairment honestly believes that it is proper for her to kill her
cheating spouse. In most states she would not be entitled to a finding of
not guilty by reason of insanity, since her impairment only led to her sub-
jective belief that killing was acceptable (and she understood that it was
“wrong” in society’s view).
In the eyes of some, the fact that a person is unable to control her conduct
does not make her morally culpable and deserving of punishment.
Some states have (or had) tests that include the M’Naghten test and fur-
ther provide that a person is insane if she has a mental impairment so that
she lacks the capacity to conform her conduct to the requirements of the
law. This is sometimes referred to as the “irresistible impulse” test in that
it applies to those who have some impulse that overcomes their will to
avoid what they know to be wrong. And despite the terms “loss of con-
trol” and “irresistible impulse,” the incitement to commit the crime does
not have to hit the defendant suddenly or without warning.
Critics of “loss of control” tests contend that only in exceptionally rare
cases would a person truly be unable to stop herself from doing some-
thing that she knows is wrong. Further, they say it is impossible for any
jury to know whether a defendant was unable to control herself at a par-
ticular time and that jurors are simply left to flip a coin between conflict-
ing expert (psychiatric) testimony. Of course, this last criticism (about du-
eling experts) could be made about any insanity test.
mental impairment such that he is not morally responsible for his conduct.
On the other hand, some courts would further restrict the defense and
follow a modified M’Naghten test that allows an acquittal only if the defen-
dant was incapable of knowing the nature and quality of his action and
of knowing right from wrong. Several states have simply abolished the
insanity defense altogether. Others have added another possible verdict
to “guilty,” “not guilty,” and “not guilty by reason of insanity”—“guilty
but mentally ill.” A verdict of “guilty but mentally ill” holds the defendant
criminally liable for her crime, but recognizes that mental illness played
a role in the crime and allows that state to treat the defendant while
incarcerated.
This is obviously a sensitive and emotional topic since it goes to the very
heart of what criminal law is about—punishing those who are morally
responsible for bad conduct. In that regard, the back-and-forth debates
about just when a person cannot be held responsible is to be expected.
What we probably cannot expect anytime soon is an answer that will settle
the debate.
Legal Briefs
Insanity—a legal, not psychiatric, term that encompasses many possible
mental abnormalities that can result in an acquittal.
Competency—the defendant’s state of mind at the time of the trial; a
defendant is incompetent if she cannot participate in her defense or
understand the nature of the charges against her.
Cognitive impairment—an interference with a person’s ability to under-
stand and think about reality.
Volitional impairment—an interference with a person’s ability to control
her actions.
M’Naghten rule—the traditional test for insanity asks whether the defen-
dant lacked the ability to (1) know the wrongfulness of his actions; or (2)
understand the nature of his actions.
Loss of control test—provides that a person is insane if she has a mental
impairment such that she lacks the capacity to conform her conduct to
the requirements of the law.
Durham test—requires an acquittal if the crime was the product of an
impairment that the defendant had when he committed the crime;
perhaps the broadest of the insanity tests.
Chapter 23
OPTIONS
Excluding evidence from trial is not the only way to punish po-
lice misconduct. The consequence for an illegal search could be ad-
ministrative in nature—perhaps departmental discipline or even a
hearing before an independent panel of citizens. The penalties could
run from fines to suspensions and terminations. We could also rely
on civil suits where those wronged pursue damages against the
responsible officers in civil court. Despite these options, our sys-
tem continues to rely on the exclusionary rule as the most direct and
appropriate approach to police misconduct in obtaining evidence.
General Scope
The general rule is that not only must the illegally obtained evidence be
excluded, but also any evidence obtained as a result of the illegally obtained
126 The Crime Junkie’s Guide to Criminal Law
Impeachment Exception
While illegally obtained evidence cannot be used by the prosecution to
prove its case, the evidence may be used to impeach the defendant if he
testifies. Courts aren’t keen on perjury, and if the defendant is going to
take the stand and lie, the prosecution can challenge his credibility even
128 The Crime Junkie’s Guide to Criminal Law
with improperly obtained evidence. Of course, the jury will be told that
the illegally obtained evidence can only be used in judging the defendant’s
veracity and not as evidence of the crime he’s charged with (good luck
with that).
IMPEACHMENT
Legal Briefs
Exclusionary rule—prohibits the use of evidence obtained in violation of
a defendant’s rights from being used at trial to prove guilt.
The Exclusionary Rule 129
Arrests
What actually constitutes an arrest is not as straightforward a question as
it might seem. An arrest means the police take a person into custody for
the purpose of criminal prosecution (which includes interrogation and
investigation). This means either that the police applied some force to the
suspect or that the suspect submitted to a police show of force. Words
alone won’t do it. Even if an officer thinks she’s made an arrest by yelling
“Stop in the name of the law!” she hasn’t—there is no arrest until the officer
uses or shows some physical force that causes the suspect to be under her
control.
There is no specific type of force that the police must use. We’re all
accustomed to the image of an officer slapping cuffs on a suspect, but that
The Fourth Amendment: Arrests 131
is not the only way to affect an arrest. Using handcuffs may be police pro-
cedure, but any physical force that shows the suspect that she is not free to
leave of her own volition would suffice (grabbing the suspect, pushing her
into the back of the cruiser, blocking her from leaving a room). Again, what
the officer says or even believes is not the issue. If the suspect is not free to
leave, she is under arrest even if the officer never uses the word or in-
tended to make an arrest. The test is whether under the circumstances a
reasonable person (objective test) would feel that she was free to leave.
Presumably, Father Jack was such a reasonable person in the “Grave
Doubts” episode of The Closer (#30). When Lieutenant Provenza’s card is
found in the wallet of a recently unearthed teenage gang member who
was murdered fifteen years ago, Deputy Chief Brenda Johnson and crew
are on the case. Their investigation eventually leads them to Father Jack, a
priest who works with gang members trying to turn their lives around.
Fifteen years ago, Father Jack turned in the murder weapon to the police
as part of his efforts to lead gang members away from lives of crime. Yet
Father Jack is none too helpful to the investigation, as he is reluctant to
lose the trust of his flock. At one point, Johnson has Father Jack brought in
and placed in an interview room.
When Chief Pope and a community activist confront Johnson and de-
mand to know why she has had Father Jack arrested, Brenda says that she
did not have Father Jack arrested. But as she rushes to speak to the Father
in the interview room, she implies that he is not free to leave unless the com-
munity activist (actually the brother of the murdered gang member) tells
her what he knows. Father Jack says: “You’re holding me hostage?” Brenda
objects to those words, but never tells Father Jack that he is free to leave.
While Deputy Chief Johnson never said the word “arrest” in connec-
tion with having the good Father brought in and might herself actually
believe that she did not arrest him, it is likely that a court reviewing the
circumstances would conclude that Father Jack had been arrested.
Of course, the police are not free to arrest citizens whenever they want.
The police must have probable cause for every arrest. “Probable cause” is
information sufficient to warrant a reasonable person to believe that the suspect
has committed or is committing a crime. This is an objective test based on the
circumstances of each case.
The factors that a police officer can take into account in reaching his
belief that he has probable cause are varied (specific observations of the
suspect, knowledge of typical criminal behavior, statements from confi-
dential informants, etc.). There is no “magic” formula, and different judges
can reach differing conclusions as to the propriety of the arrest based on
similar evidence.
132 The Crime Junkie’s Guide to Criminal Law
Although TV shows often depict the police taking suspects to the police
station for questioning, the rule is that they need probable cause for an
arrest to bring a person in for questioning. While the officers may try to
make it seem like the suspect is going voluntarily (“Hey, it will be a lot
easier if we do this downtown”), if the suspect can show that a reasonable
person would have felt he had to go and could not leave once at the sta-
tion, the arrest might be invalid and the interview suppressed.
Most arrests in public places are made without a warrant. The rule is
that an officer may make an arrest in a public place if he has reason to be-
lieve that this person committed a felony offense (the officer need not have
witnessed the felony) or if the person committed a misdemeanor offense
in the officer’s presence. It is not relevant whether the police had time to
get a warrant; if either of these circumstances applies, they simply don’t
need any prior judicial review before making the arrest.
WHAT IS A WARRANT?
(although the suspect may sue the police for a violation of his constitu-
tional rights). The only real consequence is if evidence is obtained from an
illegal arrest. That evidence will be suppressed (unless the police can show
“inevitable discovery” or “independent source”).
SEIZED BY BULLET
Officers on patrol came upon a car in a marina parking lot and saw
Letourneau jumping into the front seat and Fualaau pretending to sleep in
the backseat. The officers had a “reasonable suspicion” that some criminal
activity was taking place and conducted interviews in the parking lot to
determine if any “touching” had taken place. Letourneau and Fualaau con-
vinced the officers that Fualaau was eighteen, and he denied that anything
untoward had taken place. Even though they were eventually taken to the
police station, Fualaau’s mother told the police to release the boy to
Letourneau and they drove off together (the mother later claimed that
the police hadn’t told her about what they thought was happening in
the car).
The investigatory stop must not be longer than necessary for the officer
to conduct a limited investigation based on his suspicions (the court will
look at all the circumstances). If the officer reasonably believes the suspect
has a weapon, he may “frisk” the suspect (conduct a limited “pat-down”
of the suspect’s outer clothing for signs of a weapon).
If the police have lawfully detained an automobile (for some reason
court cases always use the word automobile) and have a reasonable suspi-
cion that there may be a weapon in the automobile, they may search the
areas where the weapon could be hidden. If they should happen to find
evidence of a crime during their search for weapons (drugs, stolen goods),
so be it; courts will not suppress this evidence, because the search was ap-
propriate under the circumstances.
As for automobile stops, the rule is simple—the police have to have a
reasonable, articulable suspicion that the driver has broken a traffic law,
they are not allowed to stop drivers just to check licenses and registra-
tions. However, if there is reason to believe the driver has broken a traffic
law, the officer’s actual motive in pulling over the car is irrelevant. These
so-called “pretextual stops” are allowed even when the officer is looking
for evidence of some crime other than breaking a traffic law. During a
valid traffic stop, the police may lawfully order all occupants (not just the
driver) out of the car (oops, automobile).
The legality of a “Terry stop” usually comes up during a suppression
hearing where the defendant argues that the evidence found or statements
given would not have come about but for an improper stop. It is then up
to the police to show that they had a “reasonable, articulable” basis for
making the stop.
Legal Briefs
Arrest—when the police physically take custody of a person for purposes
of a criminal investigation or prosecution.
The Fourth Amendment: Arrests 135
In 2006, Joshua Bush carried in his head a key piece of evidence that pros-
ecutors wanted to use to convict him of a robbery where a person was
killed. The government can’t force a defendant to talk about what he’s
thinking, so how could the prosecution possibly get at the evidence?
Strangely enough, the evidence wasn’t anything that Bush was thinking; it
was a bullet actually lodged in his forehead, two inches above his eyes.
Prosecutors in Port Arthur, Texas, obtained a search warrant to extract
the bullet, and Bush’s lawyers fought the removal. Complicating the re-
moval was the fact that bone had started growing around the bullet, ne-
cessitating surgery under general anesthesia. At least one hospital refused
to perform the surgery, even after the warrant was issued. The case raises
interesting questions about how aggressively the government can pursue
evidence without violating constitutional protections against unreasonable
searches and seizures.
As with arrests, searches and seizures (of things) are controlled by the
Fourth Amendment so they must be reasonable. Unlike with arrests, though,
“reasonableness” here means that the police must usually obtain a war-
rant before acting. That’s because most arrests occur in public places,
while searches and seizures generally involve an intrusion on a person’s
private property.
Preliminary Matters
The first thing to know about search and seizure law is that it only applies
to governmental action and not the actions of private citizens. If your
The Fourth Amendment: Search and Seizure 137
significant other rifles through your apartment looking for love letters to
your “former” girlfriend, you have no Fourth Amendment claim against
her (and you might want to change your lock). What the Fourth Amend-
ment does cover are the police, people working for the police (informants,
etc.), and public school officials.
The next important thing to know is that Fourth Amendment protec-
tions apply only to places where the person has a reasonable expectation of
privacy. Whether a person has such an expectation will be based on factors
such as ownership of the location, continuing use of the location, etc. Gen-
erally speaking, public places and things held out to the public are not
going to qualify.
You might be surprised at what else courts consider to be “held out to
the public,” and therefore things a person has no “reasonable expectation
of privacy” regarding:
• Handwriting
• The sound of a person’s voice
• Telephone numbers a person dials
• Bank records
Then there’s the oldest police trick in the book (at least as seen on TV)—
giving the suspect a drink or cigarette and taking the cup or butt with you
for the DNA evidence on it. If the suspect doesn’t keep it, well by golly, he
obviously didn’t have a reasonable expectation of privacy in it. That’s ex-
actly what Benson and Stabler did in a Law & Order: SVU episode called
“Pretend” (#182). Our intrepid detectives were trying to discover the real
identity of a girl who had been at the center of a love triangle that resulted
in one high school boy killing his best friend and romantic rival in an
“extreme wrestling” match.
It turns out that the “girl,” supposedly a sixteen-year-old high school
student in foster care, was actually a much older woman who had conned
her way into foster homes across the country. When one of her high school
boyfriends paid someone to hit her with a car to keep her from testifying
in court, Benson and Stabler visited her in her recovery room. After “help-
ing” the woman by giving her a drink with a straw, Benson gives Stabler
a meaningful look and walks off with the drink and straw. In the next
scene they have a full dossier of the woman’s life to present to Captain
Cragen. Ah, the power of DNA. And the power of the police to take DNA
when folks don’t even know they’re providing it.
Areas outside of the home and nearby structures are commonly consid-
ered to be “open fields” and are subject to police search without a warrant.
138 The Crime Junkie’s Guide to Criminal Law
Someone growing marijuana in a field behind her house would not have
Fourth Amendment protection from the police wandering by and taking
notice. The police can even fly over a property and view what is in the
“open fields” so long as they stay in public airspace. Courts also generally
allow the police to use vision-enhancing equipment in these “fly-overs” as
long as the cameras, lenses, etc., that they use are also generally available
to the public (no using supersecret Department of Defense gizmos).
Standing
A key question in any search and seizure review is who exactly is claiming
that the police made an unconstitutional search. This is known in legal
terms as the question of “standing.” The Supreme Court has said that a
person can challenge a search only if it violates his own reasonable expecta-
tion of privacy. This may not sound like a big deal, but it’s often a crucial
question when the evidence seized was in an automobile with several pas-
sengers or a house with overnight guests, etc. Which of these people are
entitled to Fourth Amendment protection?
In another Law & Order: SVU episode called “Guilt” (# 61), ADA Cabot
argued an important standing claim in court and won, thereby securing
her case against Roy Barnett, a serial pedophile.
In that show, Detectives Benson and Stabler had been unable to build a
solid case against Barnett because his accuser (a young boy named Sam)
tried to commit suicide after realizing that Barnett never really loved him.
Fortunately, another accuser comes forward (unfortunately for the case,
himself a convicted pedophile) and tells the detectives that Barnett often
sent videotapes of the sexual molestations to the victims. However, the
detectives can’t get this crucial piece of evidence because Sam’s mother
refuses to let the police search her apartment. Desperate to solidify her
case against Barnett, ADA Cabot later calls Benson and Stabler to Sam’s
apartment, implies that she has obtained a search warrant, and watches as
the detectives find the tape of Sam and Barnett.
At the inevitable suppression hearing, Barnett’s lawyer ably argues that
the tape is the fruit of an illegal search (ADA Cabot had no warrant and no
consent to search) and that the tape must be suppressed. Nevertheless,
ADA Cabot is quite correct when she counters that Barnett has no stand-
ing to contest the search since he had no reasonable expectation of privacy
in Sam’s apartment. In fact, Cabot notes that she could illegally search any
apartment in the world except Barnett’s, and Barnett would have no stand-
ing to contest the search. While the judge makes clear her disdain for
Cabot’s actions (even promising to request that the DA’s office investigate
The Fourth Amendment: Search and Seizure 139
Cabot), she also correctly rules that Barnett does not have any standing in
the case and cannot challenge the admission of the tape into evidence. Of
course, Cabot is reamed by her boss and suspended without pay for a
month, but at least she was right about the standing issue.
Standing is usually determined on a case-by-case review of the totality
of the circumstances in the case. However, there are some general rules:
Warrants
A warrant is generally required before the police may legally conduct a
search or seizure. Any search or seizure undertaken without a warrant is
unconstitutional unless it fits within one of the exceptions to the warrant re-
quirement. Before we discuss those exceptions, let’s look at the requirements
for obtaining and executing a search warrant.
The four requirements are:
• Probable cause
• Support by oath or affirmation (testimony or affidavit from the police)
• A particular description of the place to be searched
• Must be issued by a neutral magistrate
The police must present facts to a magistrate that would allow a rea-
sonable person to believe that the evidence sought will be found in the
place or on the person to be searched. The officer applying for the war-
rant must provide either sworn testimony or an affidavit with these facts.
It is not enough that the testimony or affidavit to conclude that there is
probable cause; the magistrate must be able to make this determination
independently.
140 The Crime Junkie’s Guide to Criminal Law
Execution of Warrants
The police are responsible for executing search warrants. When the place
to be searched is a home, the police may not have members of the media
with them (remember the Robert Blake case) because the media have noth-
ing to do with the search itself and makes the invasion of personal space
unreasonable.
Even when the police have a warrant, they must “knock and announce”
and be refused admittance before they can kick the door in (which is actu-
ally pretty difficult to do—they usually use a battering ram). The “knock
and announce” rule applies unless the police have reason to believe that
this would endanger them (armed bad guys inside) or would lead to the
142 The Crime Junkie’s Guide to Criminal Law
Automobile Exception
If the police have probable cause to believe that an automobile has evi-
dence or the fruits of a crime in it, they an search the automobile without
a warrant. The reason for this is twofold: first, people have a lower expec-
tation of privacy in a car than they do in their homes and, second, an au-
tomobile is mobile and it might not be there when the police return with a
warrant.
The police may search the entire automobile, including the trunk and
even closed containers that could physically contain the materials sought
(no opening a glasses case while looking for a shotgun). The police are
also allowed to tow the car to an impound lot and conduct the search there
later (no contemporaneousness requirement here).
The Fourth Amendment: Search and Seizure 143
Plain View
When the police are lawfully at a location (an office, someone’s home
even) and they see evidence of criminal activity in “plain view,” they are
entitled to seize that evidence. Of course, they can’t just grab a sweater
they like or an ottoman that would look great back at the station house;
they have to have probable cause to believe that the item is related to a
criminal investigation (evidence, proceeds, etc.). If the police are executing
a valid search warrant looking for stolen computers and find hand gre-
nades on the kitchen counter, they can seize the grenades even though
they were not mentioned in the warrant.
In 2006, former NBA player Lonny Baxter was arrested by uniformed
Secret Service (doesn’t that seem like an oxymoron—how “secret” can you
be in uniform?) after shots were fired from a car about two blocks from the
White House. After a witness flagged down officers and gave a descrip-
tion of Baxter’s white SUV, the officers stopped the vehicle at a nearby in-
tersection. They clearly had cause to stop and question Baxter, and when
they did, the officers saw “spent shell casings in plain view inside the ve-
hicle.” They didn’t need a warrant to search the car since the evidence was
openly displayed in the car. The officers also recovered a handgun. Not
unexpectedly, Baxter is no longer an NBA player.
The “plain view” exception also includes “plain smell” and “plain
hear.” As long as the officers are lawfully in a premises, anything they see,
hear, or smell that is evidence or proceeds of a crime is subject to seizure.
PUBLIC SCHOOLS
Consent
This last exception is one that is actually fairly common, although you
have to wonder about the thought process of criminals who agree to let
the police search their homes, bags, and personal effects. As long as the
police get voluntary and intelligent consent, they can search without a
warrant.
Don’t be fooled by the “intelligent” part of that rule; it does not mean
that the person has to be smart or the decision a wise one, only that the
person was not so mentally impaired as to be unable to make a rational
decision. The police do not have to tell the person that he can refuse consent,
although they are not allowed to tell the person that they have a warrant
when in fact they do not.
The scope of the search is limited by the consent given—consent to
search an apartment for a suspect would not justify opening dresser draw-
ers. An important point is that anyone with the right to use the property
(housemate, spouse, and parent) can consent to a search of the common
areas (but not private areas like locked bedrooms, etc.).
In an episode called “50G Murder” on The First 48 (#62), detectives in
Dallas are investigating the robbery and murder of an elderly man in his
dental clinic. A witness comes forward who says that she overheard her
roommate’s boyfriend and another man discussing the robbery and the
shooting of the dentist. She then tells the detectives something that seems
almost too good to be true—she thinks the men may have hidden the vic-
tim’s wallet back in her apartment. In the next scene the detectives go to
the apartment and begin searching.
With the consent to search from the witness who lives there, the detec-
tives do not need a warrant to search the common areas. And since they
are looking for a wallet, they can search pretty much anywhere that such
a small item could be hidden. Eventually they notice a suspicious hole in
the tile wall of the bathroom (presumably a common area). After ripping
out a few more pieces of tile, the detectives find parts of the victim’s wallet
between the tile and the wall—just the kind of break that makes the life of
a detective a whole lot easier.
The Fourth Amendment: Search and Seizure 145
Electronic Surveillance
The Supreme Court has made it clear that a search is not limited to physical
inspections; any electronic surveillance by the police that intrudes on a
person’s reasonable expectation of privacy is a search under the Fourth
Amendment and requires a warrant to be valid.
To get a warrant for electronic surveillance the police must show:
Legal Briefs
Reasonable expectation of privacy—an analysis by the court based on
factors such as ownership, use of the location, access by others; does not
146 The Crime Junkie’s Guide to Criminal Law
Self-Incrimination
the whole matter being discussed). Sitting silently won’t do it—the wit-
ness has to say that she’s relying on her Fifth Amendment rights (although
there’s no magic formula to repeat—just so long as it’s understood that the
witness claims the right not to answer).
Although the scope of the privilege is fairly wide ranging, only “testi-
monial” evidence is protected, not physical evidence. The state may com-
pel a witness to give writing or voice exemplars or even a blood sample.
The state can make a person stand in a lineup and give fingerprints. The
police may need to get a warrant from a magistrate before they do any of
these things, but a person usually cannot stop them by asserting her Fifth
Amendment rights.
Another important point is that the privilege only applies to compelled
testimony. The “compelled” part means that the police can’t use testimony
that they beat out of someone; in theory at least, this prohibition on the use
of “compelled” testimony should make the police less likely to use such
methods. The fact is, not only are the methods used to obtain coerced tes-
timony frequently repulsive, but testimony given under such conditions is
generally considered unreliable. People will say the darnedest things to
get someone stop jolting them with electric current.
Almost any governmental or police questioning meets the standard of
compulsion. Certainly being sweated in an interrogation room by team of
detectives counts. But did you know that even things like filing tax returns
can be considered compulsion? If you think that answering questions on
your return could tend to incriminate you, you might be able to assert
your Fifth Amendment right and leave them blank (but you still have to
file the return). On the other hand, business papers, notes of meetings, or
even diaries may be seized by the police as long as the statements in them
were not coerced by the government at the time they were made.
So significant is the privilege against self-incrimination that the Supreme
Court has held that the state cannot burden (or as we lawyers like to say,
“chill”) the exercise of the Fifth Amendment by penalizing a person who
asserts it. A common way that the state could encumber the right is to make
an issue of it at trial: “This defendant could have talked to the police during
the investigation” or “He could have taken the stand here at trial and de-
nied these charges himself, but he chose not to.” The rule is that the pros-
ecution is not allowed to comment in any way on the defendant’s silence.
entitled to have the judge instruct the jury that they are to draw no
adverse inference from the fact that the defendant did not testify.
The idea is to remind the jury that it is the prosecution’s duty to
prove the elements of the charges, and that the defendant has an
absolute right not to testify. Whether this instruction actually draws
further attention to the fact that the “star” in the trial failed to take
the stand is sometimes debated.
IMMUNITY
Confessions
On September 7, 1988, Marty Tankleff, then seventeen years old, woke up
in his suburban Long Island home ready for the first day of his senior year
in high school. He went downstairs and discovered his father, Seymour
Tankleff, lying on the floor, battered and bloody. Marty then found his
mother, Arlene Tankleff, dead on her bedroom floor. Marty called 911. An
ambulance rushed Seymour to the hospital.
The lead detective on the case, James McCready, was immediately
bothered by Marty’s affect when the police first talked to him. According
to McCready, Marty was calm and composed, not grieving as one might
expect of a teenager whose parents had just been brutally attacked. Marty
said that his father’s business partner, Jerry Steurman, who had been at a
poker game at the Tankleffs’ the night before and who owed Seymour a lot
150 The Crime Junkie’s Guide to Criminal Law
(unless the defendant has made a voluntary and knowing waiver of his
right to counsel). If the police violate this rule, the confession will not be
admissible. Remember, though, a defendant has no Sixth Amendment
right to counsel prior to an indictment, even if he is being questioned by
the police after having been arrested (although he may have a Fifth Amend-
ment right to counsel during a custodial interrogation).
Unless a defendant already has a lawyer, she must request one (no
magic words need to be said as long as he makes it known to the police
that he would like counsel). The right is “offense specific,” meaning that
the defendant must request a lawyer each time he is charged with a crime.
As a result, if a defendant requests a lawyer for one offense for which he
has been indicted (say kidnapping), he may not be questioned about that
offense without his lawyer but may be questioned about separate crimes
(perhaps a series of bank robberies) for which he has not been charged or
for which he has not requested counsel.
MIRANDA RIGHTS
The actual words of the famous Miranda warning (“You have the
right to remain silent; anything you do say can be used against you;
you have the right to an attorney; if you cannot afford one, one will
be provided for you.”) are not anywhere in the Constitution, nor are
these words required by the Constitution. Nevertheless, most police
departments use something exactly like what you hear on TV.
back, reread him his Miranda warnings, and try to question him about a
different crime.
If the suspect invokes his right to counsel (universally referred to on
shows from Law & Order to CSI: NY as “lawyering up”), the police must
stop questioning until the suspect has had a chance to confer with counsel
(who will inevitably warn him not to speak to the police). The police may
not even question the suspect about an unrelated crime as they can where
the suspect has merely invoked his right to silence.
A request to talk to a lawyer has to be unambiguous and clear enough
that a reasonable police officer would understand the words used to be a
request for counsel. The old “maybe I should talk to a lawyer first” prob-
ably doesn’t cut it.
CONSEQUENCES
Of course, a defendant can waive his Miranda rights and speak to the
police without his lawyer. It is up to the government, though, to show the
trial court that the waiver was “knowing and intelligent.” This simply re-
quires that the defendant heard the rights in language he could under-
stand (even if a translator is required). The police are not under any obli-
gation to explain in detail what the rights mean or how the criminal justice
system works.
The court will look at all the circumstances surrounding the confes-
sion, including the defendant’s age, level of education, physical condition,
etc., in determining whether the waiver was knowing and intelligent.
Generally, as long as the police can show that the warnings were given,
they don’t have much difficulty meeting the test (although waiving your
rights and making incriminating statements or a confession doesn’t seem
very intelligent).
156 The Crime Junkie’s Guide to Criminal Law
Legal Briefs
No adverse inference—the jury is not allowed to draw an adverse inference
against the defendant if she does not testify.
Use immunity—given to a witness so that the state cannot use the witness’s
statements against him in a prosecution.
Transactional immunity—given to a witness so that the state cannot pros-
ecute the witness regarding the subject (“transaction”) covered by the
testimony.
Confessions—must be voluntary (Fourteenth Amendment); the defendant
must be given access to counsel if made after the outset of “adversary
judicial proceedings” (Sixth Amendment); defendant must be given
Miranda warnings (Fifth Amendment) if questioning is “custodial.”
Chapter 27
Pretrial Proceedings
An awful lot happens between an arrest and a trial (if there is one). The
exact form of these “pretrial proceedings” varies from state to state, al-
though all states must follow certain constitutionally mandated measures.
There will be several hearings for a variety of purposes, such as reviewing
probable cause and setting bail (if appropriate). Some of these hearings
may be combined, depending on the timeline of the case itself and the
particular practices of each state.
Preliminary Hearing
This is sometimes referred to as a “Gerstein hearing,” after a Supreme
Court case that established the outlines of this procedure. The basic reason
for this hearing is for judicial review of the probable cause that was the
basis for the arrest and detention. Where the defendant is released follow-
ing her arrest, no Gerstein hearing is required because there is no longer
any detention (although the defendant will be given a date to return to
court for trial, if any).
In many cases there has already been a review of the probable cause
basis for arresting the defendant, in which case there is no need to hold a
Gerstein hearing. For example, if the police obtained an arrest warrant for
the defendant, a magistrate has already found probable cause to arrest and
detain the defendant. Likewise, a grand jury indictment prior to the arrest
establishes the probable cause for the arrest, and no Gerstein hearing is
held.
In any case, where there is no arrest warrant and no indictment, the de-
fendant has a Fourth Amendment right to a hearing to determine if there
158 The Crime Junkie’s Guide to Criminal Law
Initial Appearance
This is what you see in all those Law & Order episodes where the cranky
judge presides over what looks for all intents and purposes like a cattle-
call (this comes in the second half of the show, after the dastardly deed, the
wisecrack by Briscoe or his successors, and the investigation). Even if there
is no need for a Gerstein hearing (there was an arrest warrant or indict-
ment), the defendant must be presented to a judge within seventy-two
hours of the arrest. The defendant will stand in front of the judge, who will
take care of some housekeeping matters (informing the defendent of her
rights, making sure she has a lawyer, etc.). This hearing is often combined
with a bail hearing, as where the Law & Order judge inquires as to the
state’s position on bail by saying something like “Miss Carmichael, the
people on bail?”
Bindover Hearing
A bindover hearing reviews the prosecutor’s decision to charge the defen-
dant. Unlike a Gerstein hearing, this is an adversarial hearing; the defen-
dant is entitled to counsel and may cross-examine prosecution witnesses
and present her own witnesses and evidence. The burden is on the prose-
cution to prove that there is some evidence of each element of the crime
charged. The defendant may waive this hearing and it is not required
when the defendant has already been indicted.
Bail
The Eighth Amendment and some state constitutions say that “excessive
bail shall not be required.” It is very important to keep in mind that the
purpose of bail is to assure that the defendant will appear at trial (and all
pretrial proceedings). Obviously every defendant is “presumed innocent”
Pretrial Proceedings 159
(hey, that would be a great title for a book, and a movie starring Harrison
Ford), and bail is meant to insure that defendants are not punished before
conviction. Bail should be set no higher than is necessary to convince the
defendant to come back for the trial. In most states, if the defendant thinks
that bail is excessive, he can immediately appeal the judge’s decision.
In thinking about bail, remember that the odiousness of the crime
should not be a factor. An accused child molester who does not appear to
be a flight risk may properly receive a lower bail than a petty thief with a
history of failing to appear for trials. However, sometimes the nature of
the crime and the potential punishment may be a major factor in a bail
decision. For example, if a defendant is “facing the needle,” as they say on
TV shows, it is not all that likely that he would return for trial no matter
how high the bail. In that case, the defendant may be held without bail.
Some states, and the federal government, have passed “preventive de-
tention” statutes that allow courts to deny bail to defendants who are seen
as dangerous to society. Usually these statutes also require an expedited
trial date for anyone held in preventive detention.
The usual system for pretrial bail is based on dollars and cents. The idea
is that the possibility of a big financial hit to the defendant (or her family
and friends) will convince her to come back to face the music. If the defen-
dant does not have the money, she can turn to a bail bondsman who will
post the money for a fee (perhaps 10 percent of the total). This system ob-
viously favors those with assets and has been frequently criticized as un-
fair. Recently, more courts have been using other bail options such as
property bonds (putting a house up instead of cash) and even things like
releasing the defendant directly into another’s custody or some form of
house arrest.
Grand Juries
Grand juries are interesting because they operate very differently from the
open, adversarial mechanisms of most of our criminal law system. Their
original purpose was to be a buffer between the king and the people. Now
they are often considered a prosecutor’s best friend.
Grand jury proceedings are secret, even from the defendant. Although
the members of the grand jury are in charge of deciding a matter of grave
importance to the defendant, in most states the defendant has no right to
know that the grand jury is considering charges and she has no right to ap-
pear. Generally speaking, grand jury proceedings are also kept secret from
the public.
The prosecutor has wide latitude in deciding what evidence to show
the grand jury members before asking them to vote on the indictment. The
prosecutor has largely unrestricted power to subpoena witnesses to tes-
tify. She can decide to grant witnesses immunity and compel their testi-
mony. In most states, a witness is not allowed to have a lawyer present
during testimony, and there is no judge in the grand jury room. The pros-
ecutor can use hearsay evidence and even evidence obtained illegally (say
a weapon recovered in an illegal search that will be inadmissible at trial).
Whether the prosecutor shows conflicting evidence to the grand jury is
up to her good judgment (although she may have to if required by the
constitution or a state statute). Finally, a grand jury vote need not be unan-
imous. If there are, say, 23 grand jurors, a simple majority of 12 could re-
turn a true bill (which might tell the prosecutor something about the
strength of her evidence).
In theory, grand jurors are independent and are allowed to ask ques-
tions of witnesses or even call witnesses that they wish to question. In prac-
tice they usually only hear from witnesses the prosecution presents and
listen only to the prosecution’s questioning of the witnesses. There’s a say-
ing that a prosecutor could indict “a ham sandwich,” which, while perhaps
exaggerating things, underlines the point that a grand jury indictment is
well short of a conviction.
Pretrial Proceedings 161
The grand jurors are selected from the same pool as are trial jurors
(“petit jurors”). They often sit for a month at a time and hear whatever
cases the prosecution brings to them during that time. On rare occasions
grand juries are impaneled for a long-term investigation (think organized
crime or political corruption cases) and may sit for anywhere from six
months to years.
Legal Briefs
Preliminary hearing—Gerstein hearing; judicial review of probable cause
for arrest and detention.
Bail—financial security given by the defendant to insure that she returns
to court; not meant to punish defendants accused of heinous or violent
crimes.
Indictment—a “true bill” returned by a grand jury finding probable cause
that the defendant committed a felony.
Grand jury—group of jurors that hears evidence from prosecutor and
votes on indictments.
Information—written accusation filed by prosecutor in place of indictment;
usually for misdemeanors and in some states felonies.
Brady rule—requires the prosecution to turn over to the defense any
exculpatory information.
Chapter 28
Trial
On the night of a big high school football game in a small Texas town, a
man kidnaps three high school girls and imprisons them in a small, unfur-
nished, and windowless basement. The girls, all friends and teammates
on their varsity soccer team, are understandably traumatized and fright-
ened. Their kidnapper gives them no food or water. He tells them only one
thing—two of them will come out alive after they kill the third. At first the
girls are utterly disgusted at the very idea, but as several days pass in the
cold with no sustenance of any kind, two of the girls agree to kill the third
girl, who is sick and barely conscious.
They yell to their kidnapper that they have made their decision, and he
simply tosses two hammers into the room. Realizing that he means for
them to kill their friend, the girls are stunned. Suddenly the sick girl rises
up, grabs a hammer, and slays one of the two girls who were planning to
kill her.
The kidnapper keeps his word and releases the two surviving girls on
their sixth day of captivity. They are scarred for life, but they give the po-
lice and FBI enough information to capture the kidnapper inside the base-
ment. He admits to everything on the scene and says he did it to get back
at the parents of the girls, whom he has known since high school and
whom he says had treated him badly.
Everyone can probably agree that this is one sick bastard. But, as we all
know, even this fictional character from the 2006 episode of Criminal Minds
called “North Mammon” deserves a fair trial. That is as American as high
school football in Texas.
164 The Crime Junkie’s Guide to Criminal Law
A Fair Trial
A defendant has a right to a fair and impartial trial. This is not to be mis-
taken for the right to a perfect trial; trials are human endeavors and mis-
takes are inevitably going to happen. The key is to have an impartial judge
to evaluate and correct if possible any errors at trial and an impartial jury
to weigh the evidence.
Obviously the judge cannot have any personal bias that would skew
her rulings for either the defense or the prosecution. In some states there
are procedures for either side to challenge a judge assigned to a case on
grounds of some type of personal bias. Judges may also recuse themselves
from cases where they have some connection that might make it appear
that they are biased toward one side or the other.
The defendant also has a right to a jury that is free from unfair pres-
sures or influences. Typical issues that might come up are that a juror has
some connection with law enforcement or some personal connection with
a prosecution witness. Unfair pressures or influences might also include
having television cameras in the courtroom. Either the defense or prosecu-
tion (or both) might argue that televising the trial will make it difficult for
the jurors to reach a fair and impartial verdict (they might be swayed by
how they think the public will react to their decision, etc.).
The usual rule is that a court may allow trial proceedings to be televised
as long as the televising does not interfere with the jury’s ability and will-
ingness to consider fairly all the evidence.
Where there has been a great deal of pretrial publicity that has poten-
tially prejudiced all the potential jurors in an area, the defendant may even
ask to have the trial moved to a different and presumably less hostile area
(known in legal circles as a “change of venue”). If the defendant requests a
change of locale, he will have to show that the pretrial publicity has affected
the potential jurors’ ability to fairly weight the evidence (as where a taped
interview of the defendant confessing has been aired on local television).
CHANGE OF VENUE
The Jury
The primary reasons for jury trials are that they allow the public to par-
ticipate in the criminal process and serve as a buffer against unfair prose-
cutions by the state. A defendant has a right to a jury trial in all cases
where the possible penalty is more than six months in prison. However, the
jury right does not apply where the defendant faces multiple misdemean-
ors (each with a possible sentence of less than six months), and he could
be given a combined sentence of more than six months.
Surprisingly, there are not always twelve jurors in a criminal trial. In
federal court there generally must be twelve jurors, but there is no require-
ment that a state jury have twelve members. The Supreme Court has said
that a state jury of as few as six members is acceptable.
Also, unlike what you are accustomed to seeing on TV and reading in
the news, a jury’s verdict does not always have to be unanimous. States are
allowed to use nonunanimous verdicts (11-1, 10-2, even 9-3, but probably
not 8-4) if they desire, although the Supreme Court has said that a six-
person jury must return a unanimous verdict. Critics of the nonunani-
mous verdicts argue that dissenting votes represent reasonable doubt and,
for example, a 10-2 vote to convict violates the requirement that the pros-
ecution prove all elements of the crime beyond a reasonable doubt. Nev-
ertheless, nonunanimous verdicts are constitutional.
We all learned that a defendant is entitled to a “jury of his peers,” which
the Supreme Court has said means a jury selected from a representative
“cross-section” of the defendant’s community. A defendant may claim a
violation of this right if a particular group is excluded from the venire (the
larger collection of jurors from which the jury is selected). As to the jury
itself, the defendant is not entitled to have proportional representation of
all groups.
Selecting a Jury
Methods for selecting a jury vary widely from state to state based on local
practice and tradition.
A common method for drafting jurors is to draw them at random
from a public list such as voting rolls. While it used to be widespread prac-
tice to exclude some people based on the pressing nature of their job
(teachers, doctors, firefighters, at-home parents), their connection to law
enforcement (police personnel, judges), or for their well-known inability
to speak the truth (politicians), most of these “exemptions” have been
eliminated.
166 The Crime Junkie’s Guide to Criminal Law
The clerk of the court (or some other court official) then sends a large
group of jurors (called the venire, or jury pool) to the courtroom. The
prosecution and the defense are then allowed to question the jurors to see
if they can be fair and impartial in this particular case. This process is
usually called voir dire, which is French for “wild guess”—actually it
means “to speak the truth.” In some states the judge will conduct all the
questioning.
The lawyers (or judge) will ask questions designed to bring out a pro-
spective juror’s bias about anything relevant to the case (feelings about
violence, drug use, law enforcement, race of the defendant or witnesses,
having been a victim of a similar crime, etc.). If it becomes clear that a
prospective juror is unfit to serve (cannot understand English well enough,
has been drinking, has personal knowledge of the case or anyone in-
volved), the juror will be excused for cause on a request by either side.
These “strikes for cause” are usually unlimited.
During voir dire, the lawyers commonly are allowed a certain number of
“peremptory strikes” (between 10 and 20 is common). Peremptory strikes
allow the lawyers to strike (remove) a juror for any reason, whether ratio-
nal or irrational. This allows the lawyers to remove potential jurors who
“look at them funny” or seem “disinterested,” or, worse yet, “hostile.”
Peremptory strikes can also be exercised to remove those jurors who don’t
fit the lawyer’s notion of the type of juror she wants on the case (in a com-
plex trial, a lawyer might strike jurors with little formal education; a de-
fense lawyer might want writers and artists if she plans to present an es-
pecially creative case, etc.).
If it is a sensationalized case or involves a very serious potential penalty
(like the death penalty) or both, jury selection can be a lengthy process.
When Aaron McKinney was charged with the brutal 1998 murder of
Matthew Shepard and faced the death penalty, the court estimated that
jury selection would take up to two weeks. That’s a lot of careful questioning
by the lawyers and painstaking analysis of juror responses.
Since voir dire is the first time the lawyers see the jurors, it is also their
first opportunity to lay the foundation of their cases. Normally a judge
won’t allow a lot of argument to the jurors, but lawyers can generally get
across the essence of their case with questions ostensibly designed to
probe the jurors’ feelings about elements of the trial.
For example, in the Matthew Shepard case, prosecutors contended that
McKinney and his friend Russell Henderson met Shepard at a bar, pre-
tended to be gay, and lured Shepard to McKinney’s truck, where Shepard
was beaten, robbed, and subsequently tied to a fence and left to die in the
Wyoming cold. The case caused national outrage about crimes against
Trial 167
homosexuals, and the issue of “gay bashing” was all over the news for
months before the trial.
During jury selection the prosecutor did not even mention Shepard’s
sexual orientation or anything else that would indicate that this was a
“hate crime” (perhaps because the prosecution did not want to give any
credence to an anticipated defense that McKinney killed Shepard in a “gay
panic” after Shepard made a pass at him). And McKinney’s defense law-
yer took an even more surprising tack during jury selection. He told po-
tential jurors that McKinney was responsible for Shepard’s death, but told
them that to understand McKinney’s actions they would have to under-
stand his abuse of drugs and alcohol and his mental health problems. Re-
member, this is all before the trial actually started.
There are as many theories of what type of jurors are best for
what type of cases as there are lawyers trying cases. Some general
rules sound like they are based on “armchair” psychology, others
are often not much more than thinly veiled prejudices (women will
vote with their emotions, white men tend to be conservative, etc.).
Not many (if any) of these “theories” stand up to scrutiny.
Race/Gender Issues
Lawyers are not free to use peremptory challenges to exclude jurors
because of their race or gender. The Equal Protection Clause forbids it. The
question, of course, is how to prove that, say, a prosecutor was basing a
strike on race or gender when the strikes can be used for pretty much any
other reason at all. After all, couldn’t the prosecutor just make up some
other rational or even irrational reason for using a peremptory strike?
He could. However, there is a procedure in place for the defense to chal-
lenge a strike they believe was made because of race or gender. It is called
a Batson challenge, from the Supreme Court case that established it. There
are three steps to the process:
• the defense must show facts that raise an inference that a juror was
excluded based on race or gender (perhaps a statistical analysis of the
race/gender of jurors excluded)
• if the court decided that an inference has been raised, the prosecution
must present a race/gender-neutral basis for the exclusion (doesn’t
have to be rational, just believable)
168 The Crime Junkie’s Guide to Criminal Law
Keep in mind that it is also illegal for the defense to exclude a juror based
on race or gender. If the prosecution believes this has happened, they make
a reverse Batson challenge and follow the same procedure outlined above.
Death Penalty
Courts cannot exclude jurors simply because they are opposed to the
death penalty. The real question is whether this opposition would prevent
the juror from performing her duties to follow the instructions from the
judge and carry out her oath as a juror. A juror who says that she will ab-
solutely not return a verdict that results in a death penalty may properly
be excluded (here, the juror has affirmatively indicated that she will not
follow the judge’s instructions).
What about a juror who says that she will automatically give the death
penalty upon a guilty verdict? The same reasoning applies—she will be
excluded because she has said that she will not be able to follow the judge’s
instructions to consider mitigating factors, etc.
Inconsistent Verdicts
Often a jury will be asked to bring back not one but several verdicts against
a single defendant (as in one, not unmarried). What if the verdicts don’t
make sense when considered together—say, where a defendant is con-
victed of one felony but acquitted of a related and seemingly logically
connected second felony?
As you undoubtedly know, things do not have to make sense to be
legal. The usual reasoning is that since no one knows how the jurors arrived
Trial 169
Legal Briefs
Right to jury trial—where the possible penalty is more than six months in
prison; not an obligation, and the defendant may waive a jury trial (as
long as the waiver is intelligent).
Unanimity—not required in all cases (10-2 verdicts are allowed); required
with six-person juries.
Voir dire—“to speak the truth”; process where judge or the lawyers ques-
tion prospective jurors.
Strike for cause—where a prospective juror is disqualified from serving
on the jury because of a specific reason (knowledge of case or witnesses,
inability to follow instructions, etc.).
Peremptory strike—allows the lawyers to remove a prospective juror
from the pool for almost any reason at all; improper to base strike on
race, gender.
Batson challenge—where one side challenges the peremptory strike of
the other side as being based on an improper reason (race or gender).
Inconsistent verdicts—multiple verdicts in a single case do not have to be
logically consistent.
Chapter 29
Right to Counsel
A defendant has the right to counsel under the Fifth and Sixth Amend-
ments. The Fifth Amendment right applies to custodial interrogations.
The Sixth Amendment right applies at all critical stages of a prosecution
after formal charges have been filed (from a defendant’s point of view, are
there any non-critical stages of a prosecution?). Basically this means that
once charges have been filed, a defendant has the right to counsel at line-
ups, interrogations, psychiatric evaluations, arraignments, and pretrial
hearings. Also, where there is a conviction, the defendant is constitution-
ally entitled to counsel at sentencing hearings and at his first appeal (after
that, it’s up to the state to decide if he is entitled to counsel for subsequent
appeals).
Not every defendant has the financial resources of OJ Simpson or Mar-
tha Stewart, so in many states the court is allowed to provide other assis-
tance to a defendant in addition to a lawyer. Depending on the nature of
the charge and the prosecution’s evidence, the court might pay for a de-
fense investigator, medical expert, etc. Typically, of course, the defendant
would have to show that she lacks the financial means to pay for these
services herself.
Authorities believed Kaczynski was responsible for sixteen mail and pack-
age bombs that killed three people and injured 23 others between 1978
and 1995. Actually, the pretrial proceedings had been going on for months,
but Kaczynski made his request at the last minute because of an ongoing
tactical dispute with his attorneys. Kaczynski was concerned that his law-
yers planned to call witnesses to address his apparent mental illness, some-
thing he did not want to be part of his defense.
At one point, about a month before trial, Kaczynski apparently agreed to
keep his defense lawyers, providing they did not call expert witnesses to
address his mental health. When he made his request to represent himself
on the eve of trial, the government at first argued to the judge that the trial
should go forward with Kaczynski’s defense team, but then changed its
position and conceded that Kaczynski had a constitutional right to repre-
sent himself. Kaczynski eventually pled guilty to the charges.
A defendant can waive his right to an attorney and represent himself
before, during, and after trial. At trial, the defendant will commonly have
to do more than simply express a desire to represent himself. The court
will conduct a hearing to make sure that the defendant understands the
charges against him as well as his right to counsel. If the court ascertains
that the defendant is intelligently (meaning he understands what he’s
doing) and voluntarily waiving his right to counsel, the court must allow
it. However, the court may decide to appoint a “shadow” counsel anyway,
who will be available to consult with the defendant.
argued to the judge in support of the motion, stating that his opening
statement had not met the standard of effective assistance. The trial judge
denied the motion for mistrial, finding that although not all of the defense
counsel’s tactics were successful, he at least met the standard of competent
counsel.
Finally, a defendant is entitled to a lawyer, not a specific lawyer. Sure,
every defendant in his right mind wanted Johnny Cochran, but no one
had a right to hear that lyrical cadence in the closing argument at his trial.
In fact, the defendant does not even have to like or get along particularly
well with his appointed attorney. Unless the attorney-client relationship
deteriorates to that point that it makes preparing a defense nearly impos-
sible, the two are stuck like spouses in a bad marriage.
Legal Briefs
Right to counsel—guaranteed by the Fifth and Sixth Amendments; can be
waived if waiver is intelligent and voluntary.
Ineffective assistance of counsel—if defendant can show specific errors
made by trial counsel (other than strategic decisions, failure to raise
frivolous issues, etc.), verdict may be overturned on appeal.
Chapter 30
Guilty Pleas
After one overturned conviction and one mistrial, Dionne Baugh pled
guilty to voluntary manslaughter for killing her wealthy lover Lance
Herndon. On August 8, 1996, Herndon’s nude body was found dead on
his waterbed after suffering multiple blows to the head with a blunt object.
The police immediately suspected Baugh, although they didn’t arrest her
until 1998. Baugh was sentenced to ten years in prison and ten more years
on probation for voluntary manslaughter.
In her first trial, in 2001, Baugh was convicted of first-degree murder,
but that conviction was overturned because the state’s case was built en-
tirely on circumstantial evidence and hearsay testimony that the appeals
court decided could not support the conviction. In November 2003 the
jury in her second trial deadlocked, and a mistrial was declared. Perhaps
reluctant to roll the dice a third time, Baugh entered into the plea deal. But
why would the prosecution settle for voluntary manslaughter instead of
murder?
According to the assistant district attorney on the case, the prosecution
“lost an important state witness to cancer who was primarily responsible
for gathering a lot of crucial evidence.” With a decidedly weaker case, the
state apparently decided not to risk an acquittal in a third trial.
In the end, both sides seemed to get what they needed, and another
case was disposed of by the criminal justice system.
Guilty pleas are contracts entered into by the defendant and the prosecu-
tion. In consideration for the defendant giving up his right to a trial (where
she must be proved guilty beyond a reasonable doubt of all elements of
the crime—a potentially risky and surely time- and money-burning matter
for both sides), the prosecution agrees to reduce the charges or seek a lesser
Guilty Pleas 175
punishment than they might otherwise. A plea deal is much like any other
contract a person might enter into, where each side gives some consider-
ation to the other and receives something in return.
Although plea deals seem like straightforward bargains where each
side gets something of value, the whole concept is actually quite contro-
versial despite its widespread acceptance. Maybe the sides aren’t quite as
passionate as with the death penalty, but there are strong arguments both
as to why plea bargains are essential and why they are oppressive.
Supporters of the plea bargaining process often focus on its practicality.
Plea bargaining is a virtual necessity to keep criminal courts functioning
in most states and in the federal system. The vast majority of all criminal
cases are settled by guilty pleas. If they weren’t, you’d be paying a lot
more in taxes to support all the new courthouses, judges, bailiffs, court
personnel, defense lawyers, assistant district attorneys, etc., that would be
necessary to try five times as many cases as we do now. Oh, and you could
expect to be called for jury duty a whole lot more often, too.
Just as a completely unscientific experiment, spend a few mornings in
a criminal courthouse and carefully watch and listen to what goes on just
in the corridors, and courtrooms. If your courthouse is anything like most,
you’ll see and hear a lot of bargaining between defense counsel and pros-
ecutors. Some of this will be casual banter, some more serious whispered
actual negotiating, almost all done on a preliminary basis. In some busy
city courthouses where dozens of criminal cases are disposed of each day,
you may think you’re in a bazaar.
Of course, most of the actual deals are made in more formal negotiations
in offices or over the phone. But in overcrowded and underfunded criminal
systems (the status in most states, particularly in urban areas), lawyers on
both sides have to resolve as many cases as possible every day. They do so
in as fair and efficient a manner as they can under the circumstances. And
that may mean buttonholing the other side in the hallway.
Possibly this strikes you as cavalier, but keep in mind that these same
lawyers handle hundreds if not thousands of cases in their careers. Obvi-
ously each case is unique and meaningful to the defendant and victims
(among others), but the truth is that defense lawyers and prosecutors be-
come fairly adept at analyzing the evidence, the witnesses, the judge, and
the strengths and weaknesses of most cases. On top of that, many DA’s
offices have very specific guidelines for charging offenses and for accept-
ing pleas. It’s not quite as random as it might appear, and the truth is, it’s
the only way to keep the system from completely breaking down.
In addition to the efficiency argument, supporters would say that
plea bargains are good because they give defendants a chance to take
176 The Crime Junkie’s Guide to Criminal Law
The Bargain
The requirements for the bargain are that the plea must be “voluntary
and intelligent.” Again, “voluntary and intelligent” does not necessarily
mean “smart.” The defendant only has to understand the consequences of
her choice (i.e., no trial, no appeal, etc.) and the charge to which she is
pleading guilty.
She cannot have been coerced into making the bargain. Some would
argue that when the prosecutor charges an innocent person (or even
overcharges a guilty person) and then offers a significantly reduced
charge or lesser sentence that coercion has already taken place. Neverthe-
less, the criminal justice system relies on the fact that a person, guilty or in-
nocent, can always elect to have a fair trial in front of impartial jurors and
that a plea offer is not coercive in and of itself. As long as the defendant
Guilty Pleas 177
understands her options, courts will not find that she has been coerced
into pleading guilty.
Even in situations where the prosecution threatens to bring charges that
are more serious unless the defendant pleads guilty, courts will not find
that the plea deal was made involuntarily. Tough negotiations are par for
the course.
CHARGING DECISIONS
The police make arrests based on what crime(s) they think the
defendant has committed. But once the arrest is made, it is the pros-
ecutor who decides what charges the defendant will actually face at
trial. Sometimes the prosecutor will agree with the decision of the
police, but sometimes he will modify, drop, or add charges. This
may happen because of differing views of what charges the evidence
will support and sometimes because new evidence is developed
after the arrest. In any case, though, the police and prosecutors both
routinely bring every charge that is possibly supported by the evi-
dence. The theory is that things will get sorted out at trial (and it’s
not possible to predict exactly what will happen between the charg-
ing decision and the trial, which is probably a year away). Also, both
the police and prosecution know that the more charges they bring,
the more they have to bargain with in plea negotiations.
The standard procedure for taking a plea is that there will be a hearing
where the judge will directly address the defendant. The judge makes cer-
tain that the defendant understands:
All of this will be on the record (taken down by a court reporter or record-
ing system). This hearing is usually pretty mechanical, with the judge es-
sentially reading a checklist of questions and the defendant saying the
“correct” answers being whispered in her ear by her defense counsel.
In addition, the judge will have to make certain that the defendant is
competent to enter the plea. The standard for competency in entering a plea
is the same as for standing trial; the defendant must have the ability to
understand the proceedings going on and to be able to consult in a mean-
ingful way with her attorney.
178 The Crime Junkie’s Guide to Criminal Law
Then, about a month later, she filed a motion to withdraw her plea be-
cause only “cowardice” prevented her from going to trial and that she could
not plead guilty when she knew she was not. The judge was not happy. He
denied her request and sentenced her to two consecutive ten-years-to-life
terms.
Legal Briefs
Guilty plea—a contract between defendant and prosecutor where the
defendant agrees to forgo a trial and admit guilt in exchange for the
prosecution dropping certain charges or asking for a reduced sentence;
must be voluntary and intelligent.
Alford plea—where the defendant agrees to plead guilty without actually
admitting her guilt.
Chapter 31
Sentencing
Sentencing doesn’t get the attention it deserves. Maybe that’s because sen-
tencing lacks the adrenaline rush of an investigation or trial. Once there is
a finding (or plea) of guilt, the suspense is broken. But, the action isn’t
over. Quite a bit can happen at sentencing because this is where society
finally gets to settle its score with the defendant. Sentencing may not get
the big headlines or the best scenes in Law & Order: SVU, but it’s still an
important topic in criminal law.
Procedural Issues
Following a guilty plea or conviction, the sentence is imposed by the
judge. Sentencing is a “critical stage” of a prosecution, and the defendant
is entitled to a lawyer at the hearing. Even if the defendant is not given
prison time (instead, say, put on probation), he is still entitled to legal rep-
resentation to make sure that his rights (for example, the right to appeal
the sentence) are properly protected (if the intent to appeal must be stated
at the hearing, etc.).
Where a defendant’s rights are curtailed as opposed to other stages of a
criminal trial is in the confrontation of witnesses. Unlike at trial where the
defendant has the right to confront witnesses, the rule is that the defen-
dant has no right to confront witnesses who give information to the judge
regarding sentencing. This applies even to capital cases.
Think about that for a moment. You have the right to confront the
store owner who has accused you of shoplifting, but (depending on the
state) perhaps no right to confront people who may be trying to convince
a judge to sentence you to death (presumably for something more serious
Sentencing 181
than shoplifting). The idea is that witnesses at trial serve a different pur-
pose than people who provide information and opinions concerning
sentencing.
Of course, the testimony and evidence from the trial will play a major
role in sentencing, but the judge can also consider things that were never
part of the trial, like the defendant’s personal history, the opinions of rel-
evant persons, and even evidence that was excluded from trial because of
a Fourth Amendment violation by the police. A judge can also rely on her
impression of the defendant’s testimony if he takes the stand during trial.
The only real restriction on the factors a judge can consider in sentencing
is that the information must be reasonably reliable or trustworthy.
PRESENTENCE REPORT
The Sentence
In most states the judge is given broad discretion in sentencing, although
in some jurisdictions there are sentencing “guidelines” that largely dictate
what the sentence should be for each crime. There are also constitutional
limits on a judge’s discretion. The Eighth Amendment prohibits “cruel
and unusual punishment,” although if a particular sentence is allowed by
the state statute, it will usually pass constitutional review (essentially,
state legislatures are given deference by the courts). There are circum-
stances, though, where sentences may be found unconstitutional under
the Eighth Amendment.
The first is where the sentence is “grossly disproportionate” to the harm
inflicted on society. This comes up frequently where a very lengthy sen-
tence (say twenty years) or even a life sentence is given for a nonviolent
offense such as forgery or petty theft. A key factor in these cases is whether
there is a possibility of parole; if there is a chance for parole, the lengthy
sentence is more likely to be found constitutional.
182 The Crime Junkie’s Guide to Criminal Law
Legal Briefs
Presentence report—a report usually prepared by the probation depart-
ment providing information about the defendant relative to her sen-
tencing (education, employment history, criminal history).
Cruel and unusual punishment—usually found where the sentence is
“grossly disproportionate” to the harm inflicted on society.
Death penalty—cannot be a mandatory sentence; allowed where two con-
ditions are met:
Double Jeopardy
jeopardy attaches, the defendant gets his trial and society lives with the
results. This being the law, however, there are exceptions.
CIVIL TRIALS
Mistrials
If a mistrial is declared by the judge because the defendant asked for one
(or consents to a mistrial), the jeopardy bar is waived. When the defendant
asks for the mistrial, he has waived his double jeopardy protection and the
government may (but is not required to) retry the case. Double jeopardy
does not mean that there can never be two trials, only that there can’t be a
retrial after a decision has actually been reached on the merits of the
criminal case.
There are also instances where a mistrial can be declared without the
defendant’s consent. If the defendant objects to the mistrial (for example,
he thinks things are going his way in the trial), the judge can only declare
a mistrial where there is a “manifest necessity” to do so. Basically, “mani-
fest necessity” means that in the judge’s view the interests of society would
not be served by a continuation of this particular trial.
Manifest necessity is most often found where the jury is unable to reach
a verdict (a “hung jury”). In 2001, Cherry Hills, New Jersey, Rabbi Fred
Neulander was tried for arranging the murder of his wife, Carol Neulander,
who was found beaten to death in their home in 1994. The case made
national headlines because of the sordid details, including Fred Neulander’s
affair with a radio personality who threatened to leave him if he didn’t
become a single man. Perhaps his religious convictions precluded divorce,
so instead he had his wife murdered.
The trial lasted almost three months, and after seven days of delibera-
tions the jury failed to reach a verdict. This is the kind of thing that is meant
by the term “manifest necessity”; the jury presumably worked diligently
but just couldn’t come to agreement. The judge decided that further delib-
erations wouldn’t be useful and declared a mistrial. The prosecutor almost
Double Jeopardy 187
immediately decided that he would again pursue the case, and Neulander
was retried and convicted. In 2003 he was sentenced to life in prison.
There are other situations where manifest necessity can be found. If the
defendant or her counsel causes a mistrial by making it impossible to have
a fair trial (saying prejudicial or improper things in front of the jury), the
judge can declare a mistrial and double jeopardy would not prevent a
retrial.
Appeals
If the defendant successfully appeals his conviction, he has waived his
right to the protection of the double jeopardy clause. If Fred Neulander’s
successfully appealed his conviction, the state would undoubtedly try him
again and Neulander wouldn’t have a legal basis to object to this new trial.
The general rule is that the retrial cannot be for a greater offense than at
the first trial. In other words, if the defendant is convicted of manslaughter
and the conviction is overturned, he cannot be retried for murder. Like-
wise, the defendant cannot be retried for a greater degree of offense (no
retrying for first-degree murder where the original conviction was for
second-degree murder).
Interestingly, when a defendant is convicted for the same offense after
a successful appeal on his first conviction, double jeopardy does not pro-
hibit a greater punishment than was given for the first conviction (al-
though the judge may have to show new facts warranting the harsher
sentence in order to avoid other constitutional problems). As usual, there
is an exception to this rule that applies to the death penalty. In jurisdic-
tions where the death penalty can only be imposed through a separate
process after conviction and it is not imposed, the defendant cannot face
the death penalty in a retrial after appeal.
The prosecution may not appeal an acquittal after trial; that’s precisely
what the double jeopardy clause prohibits. However, the prosecution may
appeal orders made by the trial judge if the orders are made before jeop-
ardy attaches (say, where the judge dismisses an indictment at a pretrial
hearing). The prosecution may also appeal in instances where the judge
sets aside a guilty verdict because a reversal of that order will not require
a second trial for the defendant.
Same Offense
Double jeopardy applies only when the defendant is being tried for the same
offense in a second trial. According to the Blockburger test, after the case of
188 The Crime Junkie’s Guide to Criminal Law
that name, two crimes are considered the same offense unless each re-
quires proof of an additional element that the other crime does not require.
Determining whether two crimes are the same offense essentially just re-
quires a mechanical analysis of the specific elements of each crime.
Some general rules apply. Conspiracy and the actual offense are sepa-
rate crimes (remember, the “conspiracy” is the agreement itself). A single
act can involve separate crimes (breaking into a rival’s apartment to as-
sault him might seem like one event, but it can clearly involve separate
crimes of burglary and assault).
Legal Briefs
Double jeopardy—prohibits a defendant from being tried twice for the
same offense.
When jeopardy attaches—when the jury is sworn in; in a nonjury trial,
when the first witness is sworn in.
Mistrials—if the defendant requests a mistrial, double jeopardy is waived;
double jeopardy does not apply where a mistrial is declared because of
“manifest necessity” (usually a hung jury).
Appeals—where the defendant appeals and his conviction is overturned,
double jeopardy is waived; second trial generally cannot be for a greater
offense than the first trial, although there can be a greater punishment.
Same offense—two crimes are considered the same offense unless each
requires proof of an additional element that the other does not.
Index
Attempt: Claus von Bulow case, 88; Civil negligence, carelessness, 35–36
criminal, 87; defenses, 89–90; factual Civil trials, OJ Simpson, 186
impossibility, 90, 91; inchoate crimes, The Closer: arrest, 131; federal criminal
78, 85; legal briefs, 91; legal impos- law, 4; felony assault, 49
sibility, 90, 91; mental state, 87–88; Close to Home, cooling off period, 33
Model Penal Code, 89; numbers in Coconspirators, liability for crimes of,
2005, 89; online pedophile predators, 83–84
86, 87; punishment, 90–91; sufficient Cognitive impairment, insanity,
step, 88–89, 91 120, 123
Automobile exception, warrant Cohabitation, duty to retreat, 102
requirement, 142 Cold Case: CBS, 20; degree of negli-
gence, 36; mutual combat
Bail, pretrial proceeding, 158–59, 162 assaults, 48
Batson challenge, juror selection, Cold Case Files: A&E, 20
167–68, 169 Common law: legal brief, 7; source of
Battered victim, self-defense claims, criminal law, 4
103–4 Competency, insanity, 119, 123
Battery: battery-type assault, 47–50; Confessions: self-incrimination,
traditional crime, 46–47 149–51, 156; voluntary, 152
Baugh, Dionne, plea deal, 174 Confinement, kidnapping, 53–54
Beltway sniper attacks, multiple- Consent: rape, 41–43; warrant
jurisdiction, 5 exception, 144
“Beyond a reasonable doubt,” Conspiracy: advantages for
defendant’s guilt, 7 prosecution, 84–85; agreement,
Bindover hearing, pretrial, 158 78–80; chain conspiracy, 80–81, 85;
Blake, Robert: acquitted of defenses, 82–83; history, 77–78;
soliciting murder, 74; exclusionary inchoate crimes, 78; legal briefs, 85;
rule, 125 legal term, 78; liability for crimes of
Blockburger test, double jeopardy, coconspirators, 83–84; multiple
187–88 crimes and parties, 80–81; overt act,
Bodily harm, intent to inflict, 23 81–82; theories, 77
Brady rule, obligation to disclose, Conspirator vs. accomplice, 93
161, 162 Contracts, guilty pleas, 174–75
Burden of persuasion, prosecution, Conversion, acquisition offense,
6–7 61–62, 63
Burglary: definitions, 64, 65; home Couey, John Evander, attorney request
security advertising, 64; intent to ignored, 155
commit felony, 65–66, 67 Counsel. See Right to counsel
Crimes: knowledge of pending
Campbell, Naomi, assault, 48 unconsciousness, 12; legal briefs,
Cellmate, confessions, 154 16–17; mental state, 12–14; Model
Chain conspiracy, agreements, Penal Code approach to mental
80–81, 85 states, 14–16; motive, 13; physical
Change of venue, trial, 164 act, 10–12; reporting to police, 16;
Charging decisions, prosecution, 177 status, 11
Chastity reputation, rape-shield Criminal homicide, 20
laws, 43 Criminal justice system, exclusionary
Civil law, criminal law vs., 1–2 rule and fairness, 124
Index 191