Criminal Law: The Foundation of Criminal Justice: Objectives

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CHAPTER
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NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
© Jones & Bartlett Learning, LLC

Criminal © Jones & Bartlett Learning, LLC
NOT FOR SALE OR DISTRIBUTION
Law: The NOT FOR SALE OR DISTRIBUTION

Foundation
T of Criminal
NOT FOR SALE hroughout history, the creation
OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
and evolution of law have been
instrumental in promoting and
Justice
regulating social behavior. Aristotle,
for example, believed that law is the
essence of social © Jones
order: Good & social
Bartlett Learning, LLC © Jones & Bartlett Learning, LLC
order can be builtNOTonly onFORgood law; OR DISTRIBUTION
SALE NOT FOR SALE OR DISTRIBUTION
bad law can also produce social order,
but such order may not be desirable.1
Law, however, is not inherently good OBJECTIVES
or bad, nor has it always accomplished
◆ Grasp the relationship between civil and criminal
©goals.
its JonesLaw&is Bartlett
good to theLearning,
extent that LLC © Jones & Bartlett Learning, LLC
itNOT
is used or adhered to lawfully. If law, and describe how the law distinguishes
FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
among different levels of seriousness.
those individuals who are responsible
for administering law fail to operate ◆ Identify the essential elements of a crime,
according to the accepted rules, law including actus reus and mens rea.
may become oppressive and a tool of
manipulation.
© Jones & Bartlett Learning, LLC ◆ Know
© Jones & the meaning
Bartlett and uses ofLLC
Learning, the various
Laws are formalized rules that pre- justifications, excuses, and exemptions that may
scribe or limit actions. Criminal law is bar legal liability.
one category of law, which consists of
◆ Understand the Constitutional amendments that
the two subcategories of substantive
deal with due process, the rights of the accused,
criminal law and procedural criminal
law. Substantive © and the applicability of these principles.
Joneslaw
criminal & iden-
Bartlett Learning, LLC © Jones & Bartlett Learning, LLC
tifies behaviors considered harmful
to society, labels those behaviors as
crimes, and specifies their punishments.
Procedural criminal law specifies how
crimes are to be investigated and pros-
© Jones
ecuted. & Bartlett
Together, Learning,
substantive criminal LLC © Jones & Bartlett Learning, LLC
law
NOT andFOR
procedural
SALE criminal law form
the foundation of the U.S. system of
criminal justice.
47
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9781284133479_CH03_047_065.indd 47 12/08/16 4:04 PM

48 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice
Common
© Jones & Bartlett Law and
Learning, LLC the Concept © Jones & Bartlett Learning, LLC
of Stare
NOT FOR SALE Decisis
Although the early legal codes laid a foundation for
formalizing principles and customs into law, it was
the emergence of English common law that held the
greatest significance for the development of criminal
© Jones
law in the United States. & written
The first Bartlett Learning,
criminal laws LLC © Jones & Bartlett Learning, LLC
were established byNOT FOR
Æthelbert SALE OR
(560–616), King DISTRIBUTION
of Kent, NOT FOR SALE OR DISTRIBUTION
and contained 90 decrees, or dooms. Kings Hlothháere
and Eadric, succeeding Kings of Kent, issued dooms
that also contributed early legal procedures. King
Alfred the Great (871–899) incorporated the best of
© laws
the Jones & Bartlett
established Learning,
by earlier LLC them
kings, extending © Jones & Bartlett Learning, LLC
All laws in the United States must be in accordance with the
NOT
into theFOR SALE
first body OR DISTRIBUTION
of common law, intending it to Constitution.NOT FOR SALE OR DISTRIBUTION
apply to both the rich and the poor. However, there © James Steidl/Shutterstock.
were no lawyers, no juries, and kings were the only
judges. It took another 250 years and contributions
legal decisions, discover the principles embodied in
from many succeeding kings to set the stage for the
© Jones & Bartlett Learning, LLC by William the Con-© Jones them,&and apply those
Bartlett Learning, to new situations.3
principlesLLC
changes brought to England
Common law, with its reliance on precedent,
NOT FOR SALE
queror,OR DISTRIBUTION
including a strong centralized governmentNOT FOR SALE OR DISTRIBUTION
2 continued to evolve with little centralized planning
and a common law for the country.
or deliberation about what the law should contain.
The tradition of common law allowed judges to
Consequently, the common law of England existed as
determine which behaviors constituted crimes and
an unsystematic compilation and recording of thou-
what appropriate punishment should be imposed 4
© Jones sands of cases over the years.© Although
Jones the signing of Learning, LLC
when they were violated, thus& Bartlett aLearning,
establishing body of LLC & Bartlett
the Magna Carta by King John in 1215 established the
law common to the NOT FOR
entire SALE
nation. OneOR DISTRIBUTION
of the most NOT FOR SALE OR DISTRIBUTION
first set of statutory laws (formal written enactments
important concepts operating in common law was
of a governing or legislative body), it was not until
the doctrine of precedent, or stare decisis (literally,
the 16th century that the English Parliament began
“to stand by the decisions”). This doctrine allows
enacting legislation, thereby shifting the country’s legal
courts to interpret and apply law based on previous
© Jones & Bartlett system from © common
Jones &law to codified statutory law.
court decisions. AccordingLearning,
to stare decisis,LLC
judges were Bartlett Learning, LLC
NOT FOR
required SALE
to decide newORcasesDISTRIBUTION
in a manner consistent NOT FOR SALE OR DISTRIBUTION
with principles established in prior cases. To the extent Contemporary Sources
that a new case was substantially similar to a previous of Criminal Law
one, the judge was required to interpret the law in the Criminal law in the United States has largely grown
same way and follow the precedent. Judges were not out of English common law, which was first brought
© Jones & Bartlett
supposedLearning, LLC
to create laws, but they could study past© Jones & Bartlett Learning, LLC
over to America during the colonial period. However,
NOT FOR SALE OR DISTRIBUTION NOT Americans
FOR SALE ORa codified
desired DISTRIBUTION
system of law to provide
greater uniformity, standardization, and predictabil-
Key Terms ity. As a result, the states and the federal government
laws began to formalize law by developing statutes and
Formalized rules that prescribe or limit actions. by drawing upon a number of other sources—case
law, administrative rules, and the constitutions of the
substantive criminal law
A body of law that identifies behaviors harmful to
various states and the federalNOT FOR SALE
government. OR DISTRIBUTION
Today, the
society and specifies their punishments. United States has federal laws that apply to everyone
in the United States and its territories, and each state/
procedural criminal law
territory establishes its own criminal laws, which are
A body of law that specifies how crimes are to be
written as statutes.
©investigated
Jones &and Bartlett Learning, LLC
prosecuted. © Jones & Bartlett Learning, LLC
NOT FOR
common law SALE OR DISTRIBUTION Statutes NOT FOR SALE OR DISTRIBUTION
Case decisions by judges in England that established Criminal law is contained in written codes called
a body of law common to the entire nation. statutes. According to the balance of powers established
stare decisis in the U.S. Constitution, the law-making function
Literally, “to stand by the decision”; a policy of resides in the legislative branch rather than in the
© Jones & Bartlett Learning,
the courts LLC
to interpret and apply law according to © Jones & Bartlett Learning, LLC
judicial branch of government. Congress and state
precedents set in earlier cases. NOT legislatures
FOR SALE OR DISTRIBUTION
are responsible for enacting statutes that
statute define crimes (substantive laws). For example, homi-
Legislation contained in written legal codes. cide statutes define the difference between first-degree
9781284133479_CH03_047_065.indd 48 12/08/16 4:04 PM

PART 1 Crime and Criminal Justice 49
murder and manslaughter. These statutes also specify criminal act for a police officer to intentionally kill
the applicable for their violation, as well as© Jones
penaltiesLLC & Bartlett
an armed suspect in Learning,
self-defense.LLC
NOT FOR SALE legal procedures (procedural laws). NOT FOR
OR DISTRIBUTION
law governing SALE
Crime is also aOR DISTRIBUTION
failure to act (e.g., not paying income
tax). At various times in history, a condition of being
Case Law or status was included in definitions of crime. For
Case law is a continuation of the common-law tradition example, during the 17th century, Massachusetts Bay
in which judicial decision making in individual cases Colony made it a crime to be a Quaker. Until 1962,
© Jones
involves interpreting & Bartlett
existing law, looking atLearning,
relevant LLC © Jones & Bartlett Learning, LLC
in California it was illegal to “be addicted to the use
NOT FOR SALE OR
precedent decisions, and making judgments about of narcotics.” (The statute NOT
DISTRIBUTION FOR SALE
was eventually OR DISTRIBUTION
declared
6
the legitimacy of the law. Because gaps will inevitably unconstitutional by the U.S. Supreme Court. )
exist between what a legislative body intends when it Are crimes that are either intentional acts in viola-
passes a law and what actually happens when that law tion of law or acts of omission when required by the
is enforced, the practice of case law allows the courts law morally wrong when persons engaging in such
©interpret
to Jonesthe & law
Bartlett Learning,
as they apply LLC
it.5 The U.S. Supreme © Jones & Bartlett Learning, LLC
acts suffer social injustice at the hands of society?
Court is the most influential within the entire court NOT
This question FOR SALE
is considered ORfollowing
in the DISTRIBUTION
Focus
system. The decisions of the Supreme Court provide legal on Criminal Justice box.
guidelines for the rulings of lower courts (stare decisis).
Administrative Rules Seriousness of the Crime

The rules, orders, decisions, and regulations estab-
© Jones & Bartlett
Generally Learning,
speaking, acts that areLLC
defined as crimes
NOT FOR SALE OR DISTRIBUTION NOT
lished by state and federal administrative agencies are FOR
are SALE
consideredOR
more DISTRIBUTION
serious violations of norms
another source of law. The Federal Trade Commission (rules that regulate behavior) than are noncriminal
(FTC), Internal Revenue Service (IRS), Food and Drug acts. Nevertheless, perceptions of the seriousness
Administration (FDA), and Environmental Protection of certain crimes may vary among different times,
Agency (EPA), for example, have all established a cultures, and societies. According to public opinion
multitude of rules and regulations that have the full
LLC
polls, most Americans agree ©that
Jones & crimes
violent Bartlettare Learning, LLC
force and effect of law. These agencies investigate more serious than propertyNOT FOR
crimes, but SALE
there OR DISTRIBUTION
are
and impose criminal sanctions for such violations gradations—most people see a parent’s assault on
as securities fraud, the willful failure to pay income a child as more serious than a husband’s assault on
tax, the intentional sale of contaminated food, and his wife, and selling heroin is generally considered
the dumping of toxic wastes. to be a more serious crime than selling marijuana.7
© Jones & Bartlett Learning, LLC © Jones
In the United & Bartlett
States, people Learning,
who engage LLC
in sexual
Constitutions
NOT FOR SALE OR DISTRIBUTION NOT marriage
relations before FOR SALE may be ORbreaking
DISTRIBUTION
the law
The U.S. Constitution and each of the 50 state con- in some states (e.g., Florida, Michigan, Mississippi,
stitutions are the final arbiters of substantive and North Dakota, and Virginia), though there is little
procedural law. A law enacted by a state legislature chance of prosecution. In China, however, persons
may be found to be in violation of either that state’s engaged in the same behavior may be charged with
constitution or the U.S. Constitution. Federal laws, © Jones & Bartlett
prostitution Learning,
(for females) or rape LLC
(for males).8
regulations, or administrative acts may be judged onlyNOT FOR SALE OR DISTRIBUTION
against the U.S. Constitution. In addition, the Bill of Mala in Se Crimes Versus Mala
Rights, which was added to the U.S. Constitution in Prohibita Crimes
1791, includes protections afforded to defendants in In the early development of criminal law, all crimes
criminal prosecutions (such as the right to counsel, were considered wrong for one of two reasons: They
© Jones
prohibitions against & Bartlett
illegal search Learning,
and seizure, and LLC © Jones & Bartlett Learning, LLC
were considered inherently wrong or evil (mala in se)
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the right to due process), SALE
reflecting the OR DISTRIBUTION
framers’ fear NOT FOR SALE OR DISTRIBUTION
of a strong centralized government.
Key Terms
case law
Conceptualizing Crime Law that emerges when a court modifies how a law
in a particular & Bartlett Learning, LLC
case is applied.
Crime is an intentional act or omission in violation
NOT
of FOR
criminal law,SALE OR without
committed DISTRIBUTION
defense or excuse, NOT
Bill of Rights FOR SALE OR DISTRIBUTION
and sanctioned (i.e., punishable) by the state. Crime is First 10 amendments to the U.S. Constitution.
essentially a legal construct, because the law narrowly crime
defines the specific elements of the forbidden act and An intentional act or omission to act, neither justified
the conditions under which they occur. For example, nor excused, that is in violation of criminal law and
© Jones & Bartlett Learning, LLC © Jones & Bartlett
punished Learning, LLC
by the state.
intentionally taking the life of another person may
or may not constitute a crime. Although it would be NOT FOR SALE
mala in se
OR DISTRIBUTION
a crime for a person to intentionally kill his or her Behaviors, such as murder or rape, that are
spouse to collect life insurance, it would not be a considered inherently wrong or evil.
9781284133479_CH03_047_065.indd 49 12/08/16 4:04 PM

© Jones & Bartlett

Focus Learning, LLC Justice
on Criminal © Jones & Bartlett Learning, LLC
Is Criminal Behavior in an Unjust Society Morally Wrong?
Jeffrey Reiman argues that, according to the social contract, If a person, even in a perfectly just society, mistakenly
citizens have a moral obligation to obey the laws of the believes that he or she is a victim of injustice, would this be
state if such obedience will benefit citizens sufficiently to
a justification for violating the law? According to Reiman,
make it a reasonable bargain. Thus, “the duty to obey the NOTmoral
a person is left with two conflicting FOR SALEtheOR DISTRIBUTION
principles:
laws is conditioned on the justice of the society that those first suggests that for victims of injustice, there is little
laws govern.” But this means that citizens have less moral or no obligation to obey the law; the second argues that
obligation to obey laws when they suffer social injustice; secure peace and freedom for all is possible only if all
that is, when they do not get their “rightful share” of citizens obey the law, even if they are victims of injustice.
©social
Jonesbenefi&ts.Bartlett
Reiman goes Learning, LLC
on to suggest, “The social © Jones
Is punishment justified&forBartlett Learning,
the large portion of peopleLLC
contract
NOT FORforces us to consider
SALE that a crime committed by
OR DISTRIBUTION convicted ofNOT crimesFORbut who
SALE are also
ORvictims of social
DISTRIBUTION
the victims of [social] injustice may also be a matter of injustice—that is, those who receive less than their
reclaiming what is rightfully their own, and thus is not a “rightful share” of social benefits? Should the punishment
crime in the moral sense.” be based on the legal wrong they commit or mitigated
However, social justice and social injustice are not based on the moral wrong created by society that led to
objective, nor are they consensually shared understandings. the criminal behavior?
NOT FOR SALE OR DISTRIBUTION NOT
Source: Reiman, J. (2007). The moral ambivalence of crime in an unjust society. FOR
Criminal SALE OR
Justice Ethics, DISTRIBUTION
26, 3–15.
or they were wrong© Jones & Bartlett

merely because Learning,
they were pro- LLC © Jones
severely punished. Mala prohibita & Bartlett
crimes, such as public Learning, LLC
hibited by a criminal statute ( mala prohibita
NOT FOR SALE OR DISTRIBUTION). Only drunkenness, loitering, prostitution, and gambling,
nine common-law crimes were classified as mala in se did not carry the same broad moral condemnation.
offenses: Table 3.1 presents a brief list of examples of mala in
• Murder se and mala prohibita crimes today.
• Manslaughter The basic distinction between these two groups
©•Jones
Rape & Bartlett Learning, LLC of crimes © Jones
persists & Bartlettcriminal
in present-day Learning, LLC
law. The
• Sodomy offenses classifi ed as mala in se crimes
NOT FOR SALE OR DISTRIBUTION have largely
• Robbery remained the same, but the number of mala prohibita
• Larceny
• Arson Table 3.1 Examples of Contemporary Mala in Se and
• Burglary Mala Prohibita Crimes
• Mayhem LLC © Jones & Bartlett Learning, LLC
NOT FOR SALE Mala in Se Mala Prohibita
TheseOR DISTRIBUTION
offenses were also the first group of crimes toNOT FOR SALE OR DISTRIBUTION
be referred to as felonies. The mala prohibita crimes, Murder Prostitution
by comparison, were considered less serious and Rape Gambling
consequently were classified as misdemeanors. Robbery Vagrancy (loitering)
The significant historical distinction between these
two categories of crimes reflects perceptions of the
Larceny © Jones
Panhandling & Bartlett Learning, LLC
NOT
degree of public harm FOR
they SALE
present. ORmala
Because DISTRIBUTION
in se
Arson NOT
Fraud FOR SALE OR DISTRIBUTION
crimes were believed to be inherently evil and to pose a Burglary Public intoxication
major threat to the social order, it was understandable Aggravated assault Public nudity
that they would be sanctioned by the law and more Incest Trespassing
© Jones & Bartlett Learning, LLC PossessionLearning,
© Jones & Bartlett of drug LLC
paraphernalia
NOT
Key FOR
TermSALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
Copyright infringement
mala prohibita Illegal possession of a
Behaviors, such as prostitution and gambling, that are weapon
considered wrong because they have been prohibited Disorderly conduct
© Jones & by criminal
Bartlett statutes, rather
Learning, LLC than because they are evil © Jones & Bartlett Learning, LLC
in themselves. © Jones & Bartlett Learning.
9781284133479_CH03_047_065.indd 50 12/08/16 4:04 PM

crimes has greatly expanded. For example, statutes have if two gang members are overheard by corrections
been enacted LLC
to prohibit driving under the influence© Jones &planning
officers BartletttheLearning, LLC
“hit” (murder) of another inmate.
NOT FOR SALE OR or
of alcohol drugs, copyright infringement, and theNOT In
DISTRIBUTION FORthis SALE
scenarioOR DISTRIBUTION
the perpetrators were caught before
manufacture, distribution, and possession of illegal the crime took place, however they could be charged
drugs. Statutes also have been created to control with conspiracy to commit a crime.
cybercrimes, including theft of information, creation Finally, solicitation or the hiring or encouraging of
of computer viruses to cause mischief or damage data, another person to commit a crime can be classified
copying software, downloading of copyright-protected
as a inchoate offense. For example, in 2015 a man
NOT FOR SALE
music or movies, and identity theft. OR DISTRIBUTION
in Kentucky tried to hire someone NOT FOR on theSALE OR DISTRIBUTION
Internet
to kill his wife for insurance money. The person
Categories of Crime he tried to hire turned him in and the murder was
U.S. criminal law distinguishes among felonies, never attempted, so law enforcement could arrest the
misdemeanors, infractions, and inchoate crimes and husband on solicitation.11
One distinction between felonies and misde-
assigns punishments accordingly.
The most serious crimes, called felonies, result in NOT FOR
meanors involves SALE OR
the authority of law DISTRIBUTION
enforcement
a more severe punishment. In most states, felonies officers to make arrests. When an officer has rea-
carry maximum sentences of death or imprisonment sonable grounds to believe that a felony has been
for a term greater than one year in a state prison committed, even when he or she did not directly
and typically carry higher fines than misdemeanors.© Jonesobserve the act, the officer may arrest a suspect. By
© Jones & Bartlett Learning, LLC & Bartlett Learning, LLC
contrast, many states have an in-presence requirement
For example, in California, first-degree robbery can
result in a sentence of three to nine years in prison.9 NOT FOR SALE OR meaning
for misdemeanors, DISTRIBUTION
that an arrest may not
A felony conviction also may result in the loss of be made unless the criminal act was committed in
certain rights, such as the loss of a person’s right to the presence of the officer. However, if the victim
vote, hold public office, carry a gun, or be licensed of a misdemeanor files a formal complaint and the
in certain professions. court issues an arrest warrant, the officer may then
© Jones & Bartlett Learning, LLC arrest the suspect.
Crimes classified as misdemeanors carry less
severe punishments than are meted out for felonies.
Typically, the maximum incarceration sentence is Elements of a Crime
one year or less in a local jail and a smaller fine than
would be incurred with a felony. In Colorado, theft Part of the legal definition of crime is what is known
of an item that is worth between
© Jones & Bartlett Learning, LLC $50 and $350 is as the corpus delicti (literally,
© Jones & Bartlett “body of the crime”),
Learning, LLC
a Class 3 misdemeanor, which can result in a jail which refers to the facts, or foundation, of the crime
sentence of up to six months and a fine between
that must be established in a court of law. In other
$50 and $750.10 words, the state must prove that a specific criminal
The third category of crimes, called infractions,
is composed of petty offenses. These involve viola-
tions of city or county ordinances and include such
© Jones & Bartlett Learning, LLC Key
© Jones & Terms
Bartlett Learning, LLC
offenses as illegal parking, jaywalking, cruising, and
violations of noise ordinances. Infractions are gen-NOT FOR felony SALE OR DISTRIBUTION
erally not punishable by incarceration; rather, fines A serious crime, such as robbery or embezzlement,
or community service may be imposed. that is punishable by a prison term of more than one
year or by death.
A final category worth mentioning is inchoate
offenses, which are incomplete crimes. Such a charge misdemeanor
can occur when an individual is caught acting in crim-
LLCA crime that is less serious than © Jones & Bartlett
a felony, such as Learning, LLC
inal manner but isNOTunableFOR SALEa OR
to complete DISTRIBUTION
criminal act. petty theft or possession of aNOT FOR SALE
small amount of OR DISTRIBUTION
Consider the following scenario. An employee arrives marijuana, and that is punishable by less than one
year in prison.
to work in the morning to open the store and someone
trying to break into the back door. The employee calls infraction
911 and law enforcement arrest the suspect fleeing A violation of a city or county ordinance, such as
© Jones & Bartlett Learning, LLC cruising or©noise
Jones & Bartlett Learning, LLC
violations.
the scene of the crime. In this instance, the suspect
may be arrested and charged with attempted burglary NOT
inchoate offense FOR SALE OR DISTRIBUTION
which is an inchoate or incomplete offense because An incomplete offense.
they were caught before the burglary was complete. corpus delicti
A second form of inchoate offense is conspiracy. Literally, “the body of the crime”; the material
Here a criminal act is communicated between two or elements of the crime that must be established in a
more people planning to commit a crime; for example, court of law.
9781284133479_CH03_047_065.indd 51 12/08/16 4:04 PM

law has been violated and that the defendant intended held criminally liable for the intoxication of their
© Jones & Bartlett
to violateLearning, elements include actus reus© Jones
LLC
the law. These guests&who
Bartlett
are laterLearning,
involved in LLC
fatal accidents. The
NOT FOR SALE OR act),
(criminal mens rea (criminal intent), and theNOT fact
that neitherOR
the DISTRIBUTION
bartender nor the host had any
concurrence of these two concepts. intention to cause the intoxication or the subsequent
accident is neither a required element of proof nor a
valid defense. Penalties for strict liability violations
Actus Reus typically involve fines rather than jail time.
In his novel 1984,© Jones
George & Bartlett
Orwell describedLearning,
a society LLC © Jones & Bartlett Learning, LLC
Different degrees of criminal intent exist, and
in which both thoughtsNOT FOR and SALE
acts were OR DISTRIBUTION
restrained there are even some exceptions NOTtoFOR SALE OR DISTRIBUTION
the requirement
and regulated by the Think Pol, or thought police.12 that intent be present. In an attempt to create greater
Through constant surveillance, the Think Pol were legal uniformity among the states, the American
able to monitor and then punish any expression of Law Institute wrote a Model Penal Code in 1962.
prohibited thoughts. U.S. law, however, generally It identifies levels of criminal responsibility, or
© Jones
limits & Bartlett
criminal Learning,
responsibility to actus LLCreus—an © Jones & Bartlett Learning, LLC
culpability, reflecting differing degrees of intent
NOTact,
actual FOR SALE OR
the planning DISTRIBUTION
or attempt to act in violation to act: TheNOTperson FORmustSALE OR DISTRIBUTION
have “acted (1) purposely,
of the law, or the specific omission to act when the (2) knowingly, (3) recklessly, or (4) negligently, as
law requires action. The written or oral expression the law may require, with respect to each material
of certain thoughts, such as making threats or intim- element of the offense.”14
idating remarks to a witness, may also be viewed
© Jones & Bartlett Learning, LLC may be prohibited by© Jones • Purposely
& Bartlettmeans to act withLLC
Learning, conscious deliber-
as actus reus and, therefore,
ation, planning, or anticipation to engage in
NOT FOR SALE ORlaw.
criminal DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
some conduct that will result in specific harm.
• A person acts knowingly when he or she is aware
Mens Rea that the conduct is prohibited or will produce a
According to an old Latin maxim, an act does not forbidden result.
make a person guilty © Jones
unless &theBartlett Learning,
mind is guilty. In LLC Acting recklessly involves
• © conscious
Jones &disregard
Bartlett of Learning, LLC
other words, a defendant
NOT FOR is notSALE
criminally
ORliable for
DISTRIBUTION a known risk, although there is no conscious
conduct unless mens rea (criminal intent) was present intent to cause the harm (such as speeding
at the time of the act. For a crime to exist, the person and unintentionally causing an automobile
must intend for his or her action to have a particular accident).
consequence that is a violation of the law. The mere • Negligent conduct creates a risk of harm when
© Jones
fact & Bartlett
that a person engages Learning,
in conduct inLLC violation of an individual
© Jones is unaware, but should
& Bartlett have been
Learning, LLC
law
NOT is not
FOR sufficient
SALE to prove criminal liability; rather,
OR DISTRIBUTION aware. In other words, to be
NOT FOR SALE OR DISTRIBUTIONnegligent, a person
the defendant must also intend to commit the crime. As must engage in conduct that a reasonable person
former Supreme Court Justice Oliver Wendell Holmes would not engage in, or an individual must fail
once noted, “Even a dog distinguishes between being to act (an omission) in the manner in which a
stumbled over and being kicked.” 13 reasonable person would act under the same or
© Jones & Bartlett
However, Learning, LLClaws, in which there is© Jonessimilar
strict liability circumstances.
& Bartlett Learning, LLC
liability without
NOT FOR SALE OR DISTRIBUTION culpability, are an exception. Strict
liability laws provide for criminal liability without
requiring intent; in other words, a person may Concurrence of Actus Reus
be held criminally responsible even though he or and Mens Rea
she had no intent to produce the harm. For example,
For an act to be considered criminal, both the act (actus
bartenders have been © Jones & Bartlett
held criminally Learning,
liable for the LLC
reus)
prohibited by criminal law and the intent (mens
intoxication of patrons, and hosts of parties
NOT FOR SALE OR DISTRIBUTION have been NOT
rea) prohibited by the criminal lawFORmustSALE OR DISTRIBUTION
be present
before the crime is completed. The presence of both
the guilty act and a guilty mind is called concurrence.
Key Terms It is not sufficient for an act to be defined as a crime
if the person has only the guilty mind but commits
©actus
Jones reus& Bartlett Learning, LLC © Jones & Bartlett Learning, LLC
no act. Nor is it sufficient for a person to have acted
NOT
Guilty FOR SALEmaterial
act; a required OR DISTRIBUTION
element of a crime. NOT FOR
without criminal intent,SALE ORexception
with the DISTRIBUTION
noted
mens rea earlier of strict liability offenses.
Guilty mind, or having criminal intent; a required Concurrence may exist even if the act and the intent
material element of most crimes. do not coincide as the offender intended. Suppose
strict liability laws Dewayne aimed a gun at William and shot with the
Laws that provide for criminal liability without intent to kill him, but missed, hitting and killing
requiring either general or specific intent. NOT Sherry SALE
FOR instead.OR DISTRIBUTION
Dewayne is still liable for murder
9781284133479_CH03_047_065.indd 52 12/08/16 4:04 PM

under the doctrine of transferred intent. The intent Self-Defense

© Jones & Bartlett
to kill, in Learning, LLC
other words, is transferred from William to© Jones & Bartlett Learning, LLC
Defendants who raise the claim of self-defense
NOT FOR SALE
Sherry.OR bullet missed both William and SherryNOT as
DISTRIBUTION
If the FOR SALE OR DISTRIBUTION
a justification for avoiding criminal responsi-
but instead hit an electrical transformer and caused a bility argue that they acted in a lawful manner to
fire, Dewayne would not be responsible for the crime defend themselves, others, or their property, or
of arson, because he did not intend to commit this to prevent a crime. Most states permit a person to
specific act, though he may still be held responsible use as much force as is reasonably
for reckless behavior.
LLC © Jonesnecessary
& Bartlettfor Learning, LLC
NOT FOR SALE OR DISTRIBUTION such protection. The individual must also have
an honest and reasonable belief that he or she is
Defenses and Responsibility in immediate danger from unlawful use of force
by another person. The degree of force used in
Society and criminal law have long recognized that one’s self-defense must be limited to a reasonable
certain actions may be justified or excused, such that response to© the
Jonesthreat.
the offender does not bear
NOT FOR SALE OR DISTRIBUTION legal liability for the act. According to
NOT FOR the Model
SALEPenal
OR Code, deadly
DISTRIBUTION
Sometimes these justifications and excuses, which are force may be used only in response to a belief that
called defenses, are based on the mental state of the there is imminent threat of death, serious bodily
person at the time the act was committed. At other harm, kidnapping, or rape. It may not be used if
times, circumstances beyond the individual’s control the defendant provoked the offender to use force.
may come into play that may negate criminal © Jones
liability. Some&jurisdictions
Bartlett Learning,
also requireLLC
that when a safe
Justifi cations
NOT FOR SALE OR DISTRIBUTIONand excuses are affirmative defenses; NOT FOR SALE OR DISTRIBUTION a person
escape route from a house is available,
that is, the defendant must prove that his or her act must retreat instead of using deadly force. Thus, if
was justified or excused. a person has an opportunity to retreat safely from
John Hinckley, Jr.’s shooting of President Ronald the person posing the threat, deadly force would
Reagan in 1981 was seen by millions of people as not be justified as self-defense. This retreat rule has
they watched the television news, yet Hinckley’s suc- several exceptions, such as © Jones
cases & Bartlett
of battered spouse Learning, LLC
cessful defense ofNOT“not guilty by reason of insanity”
FOR SALE OR DISTRIBUTION syndrome (see the following Focus on Criminal
prevented him from being convicted for the crime. Justice box).
In this case, the defendant did not deny engaging
in the action: Hinckley did shoot Reagan. Never-
theless, his defense of insanity successfully allowed Key Terms
© Jones
him to avoid&being
Bartlett Learning,
held criminally LLC
responsible for © Jones & Bartlett Learning, LLC
justification
the assault.
NOT FOR SALE OR DISTRIBUTION Defense wherein
NOT FOR a defendant
SALE admits
ORresponsibility
DISTRIBUTION
but argues that, under the circumstances, what he
or she did was right.
Justifications self-defense
Justifications are based on a defendant admitting Claim that a defendant acted in a lawful manner
responsibility but arguing that, under the circum- to defend him- or herself, others, LLC
or property, or to
© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning,
stances, he or she did what was right. prevent a crime.
Headline Crime
Carrying Guns
NOTon FOR
Campus
SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
Faculty at the University of Texas at Austin have been court of appeals ruled that the University of Colorado
outspoken about a new state law allowing students to has no authority to bar students or visitors from lawfully
carry guns on campus. Texas is just one of nine states carrying guns on campus. At the opposite end of the gun
that allow students to carry guns on campus. In 2004, debate, Princeton University has a policy prohibiting campus
©Utah
Jones
was the&fiBartlett Learning,
rst state to pass LLC permit
legislation allowing © Jones
police from carrying & campus.
guns on Bartlett TheLearning, LLC
university argues
holders to carry guns on campus. Since then, seven other NOT FOR SALE OR DISTRIBUTION
that the township and borough police provide adequate
states have passed affirmative policies on carrying guns armed protection for the campus. Twenty-one states have
in public universities: Arkansas, Colorado, Idaho, Kansas, policies or have enacted a statewide law banning guns
Mississippi, Oregon, and Wisconsin. In Colorado, the state at public colleges and universities.

Source: Anderson, N. (2016, LLC
January 27). If you want to carry a gun © Jones
on campus, these&states
Bartlett Learning,
say yes. The Washington Post.LLC
Retrieved from https://
www.washingtonpost.com/news/grade-point/wp/2016/01/27/if-you-want-to-carry-a-gun-on-campus-these-states-say-yes/.
9781284133479_CH03_047_065.indd 53 12/08/16 4:04 PM

© Jones & Bartlett

Focus Learning, LLC Justice
on Criminal © Jones & Bartlett Learning, LLC
The Battered Spouse Syndrome and Deadly Force
Nancy Seaman, a 52-year-old elementary school teacher,
may have suffered from battered spouse syndrome
after enduring years of alleged physical abuse by her
husband, Robert. At her trial, Nancy admitted to killing NOT FOR SALE OR DISTRIBUTION
her husband with a hatchet, but claimed it was an act of
self-defense initiated during one of his attacks soon after
she asked him for a divorce. She testified that when she
told Robert she wanted a divorce, he became furious, cut
©herJones & Bartlett
with a knife, chased herLearning, LLC
into the garage, forced her © Jones & Bartlett Learning, LLC
to theFOR
NOT ground,SALE
and repeatedly kicked her. According to
Nancy, she grabbed the closest object she could find—a
hatchet—and drove it into her husband’s skull. She then
stabbed and beat him to ensure he was dead.
Prosecutors told another story. They claimed the act
was premeditated and that Nancy purchased the ax and
took great care to conceal the crime scene. Surveillance
© Jones & Bartlett
The majority Learning,
of domestic LLC
violence victims are women, and
this abuse may have varied and significant effects.
NOT FOR SALEvideoORfromDISTRIBUTION
a hardware store showed Nancy stealing aNOT ©FOR SALE OR DISTRIBUTION
SpeedKingz/Shutterstock.
hatchet identical to the one used in the murder. Two
days later, she returned it using the receipt from the According to criminologist Cynthia Gillespie, laws
purchase of the hatchet used in the murder, perhaps in regulating deadly force have been created by men based
an attempt to erase the purchase from her credit card on a code of “manly” behavior that expects a person to
record. Prosecutors©said
Jones & Bartlett
that Nancy slammed the Learning,
hatchet LLC
be fearless and confront an attacker © Jones &Such
directly. Bartlett
laws Learning, LLC
into Robert’s skullNOT
more than a dozen times, dragged
FOR SALE OR DISTRIBUTION his do not consider the woman’s assessment that she cannot
body into the garage, and then stabbed him 21 times, escape further injury as long as the abuser is alive.
severing his jugular vein and voice box. The next morning, Victims of battered spouse syndrome are often unable
she stopped to purchase a tarp, bottles of bleach, and to leave their abusers, even when circumstances appear
latex gloves to clean up the mess. to permit their escape. Over time, a battered woman
Other testimony also appeared to contradict Nancy’s may lose all hope of controlling her partner’s violence.
©account.
JonesWhen & Bartlett
police fiLearning,
rst arrived at LLC
the couple’s Many such© Jones
women & Bartlett
succumb to learnedLearning,
helplessness:LLC
NOT
home,FORNancySALE
claimed OR DISTRIBUTION
Robert’s death was an accident. They become NOT FOR SALE
emotionally dependentORonDISTRIBUTION
their abusive
A coworker said he had overheard Nancy talking with partners and learn to be passive as a result of beatings
another teacher at school about poisoning her husband. when they tried to assert themselves. In addition, some
After five hours of deliberation, the jury found Nancy women do not leave because no safe refuge exists where
guilty of first-degree murder, rejecting her claim of an enraged partner cannot find them or their children.
self-defense, and
© Jones & Bartlett Learning, LLCshe was sentenced to life in prison. Abusive
© Jones & husbands
Bartlettoften threaten toLLC
Learning, harm or take cus-
However, in 2010, a judge overturned her conviction tody of the children if the woman leaves. Even with the
NOT FOR SALEdue OR
to theDISTRIBUTION
defendant not being able to fully develop aNOT increase
FOR SALE in the numberOR DISTRIBUTION
of shelters for abused women,
battered-spouse-syndrome defense. shelters must turn away more women than they serve.
Source: ABC News. (2004, December 7). Accused of Murdering Husband, Teacher Cites Years of Abuse: Husband killer gets life. Retrieved from http://
abcnews.go.com/GMA/story?id=305807; Associated Press. (2010). Judge overturns 2005 conviction of Farmington Hills teacher who killed husband
with hatchet. Retrieved from http://www.mlive.com/news/detroit/index.ssf/2010/11/judge_overturns_2005_convictio.html; Gillespie, C. (1989).
Justifiable homicide: Battered women, self-defense, and the law. Columbus, OH: Ohio State University Press.
In the past, deadly force generally has not been after he was convicted of first- and second-degree
NOT FOR
accepted as aSALE OR
response DISTRIBUTION
intended solely to protect murder ofNOT FOR SALE
two teenagers ORbroken
who had DISTRIBUTION
into his
property, because owners could have taken steps to home on Thanksgiving Day in 2012.15 While social
protect their property and prevent the criminal act norms in American society tend to value human life
from occurring. For example, it is illegal to set a deadly more than property, the use of deadly force to protect
trap or device for intruders in a home or business, one’s property varies from a legal perspective from
even if the home or business has previously been jurisdiction to jurisdiction.
burglarized. This was true in the case of Byron Smith, NOT FOR SALEofOR
A number DISTRIBUTION
states have recently expanded the
who was sentenced to life in prison without parole right to use deadly force in self-defense and defense
9781284133479_CH03_047_065.indd 54 12/08/16 4:04 PM

of property. These new laws—referred to as “stand

your ground” their supporters and “shoot© Jones & Bartlett Learning, LLC
laws by LLC
NOT FOR SALE ORby
first” laws their opponents—permit people to useNOT FOR SALE OR DISTRIBUTION
DISTRIBUTION
deadly force against intruders who have illegally and
forcefully entered their homes. For example, Kansas
expanded its law so that a person does not have a duty
to retreat if they are in a place they “have a right to be”
and may stand their ground. Florida law states that
citizens no longer need to prove that they feared for NOT FOR SALE OR DISTRIBUTION
their safety before they responded with deadly force,
only that the intruder illegally entered their home
or vehicle. The law states that someone who enters a
dwelling illegally can be presumed to be intending
to commit a violent crime. Therefore, a person does
not need to prove he or she felt immediate danger NOT FOR SALE OR DISTRIBUTION
if deadly force is used against a home intruder in
Florida. Moreover, the law states that a person “has
no duty to retreat and has the right to stand his or her
ground and meet force with force, including deadly
force.” The law also prohibits the arrest, detention,
NOT FOR SALE
or prosecution of such a person and disallows theNOT FOR SALE OR DISTRIBUTION
OR DISTRIBUTION
victim of such a shooting from bringing a civil suit
against the shooter.16 This law came under scrutiny
after the death of Trayvon Martin in 2012 by George
Zimmerman. In 2016, Florida expanded the “stand
your ground” law by placing the burden of proof on Kobe Bryant and his accuser had© Jones
starkly & assessments
different Bartlett Learning, LLC
NOT FOR SALE OR
prosecutors to prove injury to another wasn’t an act
of their sexual encounter, which NOT
DISTRIBUTION resultedFOR SALE
in a civil OR DISTRIBUTION
settlement.
© s_bukley/Shutterstock.
of self-defense. The burden was previously on the
defendant.17
consented to a neighbor taking her car, then the
neighbor has not committed motor vehicle theft.
Necessity
© Jones & Bartlett Learning, LLC During the © summer
Jones of &2003,
Bartlett Learning,
professional LLC
basketball
NOT FOR
Necessity, as aSALE
defense,OR DISTRIBUTION
represents the dilemma of star Kobe Bryant NOT FOR was charged
SALEwith ORraping a 19-year-
DISTRIBUTION
choosing between two evils. A person may violate the old female hotel employee while he was staying at a
law out of necessity when he or she believes that the Colorado resort. Bryant admitted he had sex with the
act, which is a violation of law, is required to avoid woman but claimed that she had consented. Shortly
a greater evil. According to the Model Penal Code, after the charges were filed, Bryant stated, “Nothing
conduct that a person LLC © Jones & Bartlett
that happened JuneLearning,
30 was againstLLCthe will of the
NOT FOR SALE OR DISTRIBUTION woman who now falsely accuses me.” The rape charge
believes to be necessary to avoid a harm or evil toNOT FOR SALE OR DISTRIBUTION
was eventually dismissed. Afterward, Bryant stated,
himself or to another is justifiable, provided that the
harm or evil sought to be avoided by such conduct Although I truly believe this encounter between us
is greater than that sought to be prevented by the was consensual, I recognize that she did not and
law defining the offense charged.18 does not view this incident the same way I did.
© Jones & Bartlett Learning, LLC After months of reviewing©[evidence Jones submitted
& Bartlett at] Learning, LLC
For example, breaking into a mountain
NOT FOR SALE OR DISTRIBUTIONcabin to
discovery, listening to herNOT FORand
attorney, SALE OR DISTRIBUTION
even her
secure shelter or food during a snowstorm or into a
testimony in person, I now understand how she
home to use the telephone to report an emergency
feels that she did not consent to this encounter.
may establish the defense of necessity and thereby
negate the crime of breaking and entering. In either The woman then filed a civil lawsuit against Bryant;
© Jones
case, & Bartlett
the individual mustLearning,
intend to avoidLLCa greater the suit was ©settled
Jones out&ofBartlett
court, andLearning, LLC
terms of the set-
19
harm
NOTthan FOR theSALE
crime charged to justify the act.
OR DISTRIBUTION tlement were NOT notFOR
released.
SALE SuchOR lawsuits are based
DISTRIBUTION
on civil law, which is a body of private law that settles
Consent disputes between two or more parties.
The defense of consent arises when a defendant claims
the victim consented to the act. Certain common Key Terms
law offenses, such as theft and rape, require a clear civil law
demonstration that the victim did not give consent.NOT FOR SALE OR DISTRIBUTION
A body of private law that settles disputes between
For example, if the owner of an automobile voluntarily two or more parties in a dispute.
9781284133479_CH03_047_065.indd 55 12/08/16 4:04 PM

Excuses
© Jones & Bartlett Learning, LLC © Jones & Bartlett
Minister, Sir Robert Peel II, was persecuting him. In
Learning, LLC mistakenly
an attempt to assassinate Peel, M’Naghten
Excuses are based on a defendant admitting that whatNOT FOR SALE OR DISTRIBUTION
NOT FOR SALE OR DISTRIBUTION shot and killed Peel’s assistant. At the trial, the court
he or she did was wrong but arguing that, under the
instructed the jury that
circumstances, he or she was not responsible for the
criminal act. [To] establish a defense on the ground of insanity, it
must be clearly proved that, at the time of the com-
Insanity © Jones & Bartlett Learning, LLC © accused
mitting of the act, the party Joneswas & Bartlett
labouring Learning, LLC
Probably no other legal defense has resulted in more under such a defect of NOT
reason FOR
from SALE
disease OR DISTRIBUTION
of the
public scrutiny and debate than the insanity defense. mind as not to know the nature and quality of the
In reality, insanity pleas are very rare. The insanity act he was doing; or, if he did know it, that he did
defense is raised in less than 1% of all criminal cases, not know he was doing what was wrong.22
and only in 25% of those cases is the person found M’Naghten©was tried and found notLearning,
guilty by reason
© Jones
not & Bartlett
guilty because Learning,
of insanity.20 LLC people
Even so, many Jones & Bartlett LLC
of insanity.
are concerned when a clearly dangerous person avoids NOT FOR SALE OR DISTRIBUTION
Under the M’Naghten rule, the defendant is pre-
incarceration and punishment after being found sumed to be sane and must prove that he or she
legally insane at the time the crime was committed. suffered from a “disease of the mind” and, therefore,
It is important to recognize that people who are lacked a sufficient degree of reason to distinguish
released from criminal charges owing to insanity do between right and Learning,
wrong. This LLC
test of insanity has
not go free, but insteadLLC
are sent to mental hospitals© Jones & Bartlett
been criticized on several grounds:
NOT FOR SALE
until OR
they DISTRIBUTION
are considered sane. Only then are theyNOT FOR SALE OR DISTRIBUTION
released back into the community. • “Disease of the mind” is not clearly defined.
The insanity defense is based on a legal concept, • Too much stress is placed on the requirement
rather than a medical or psychiatric definition of of knowing.
insanity. Legally, “insanity” refers to a person’s state • It is unclear how a person must know that an
of mind at the time he or she committed the crime LLC act is wrong. © Jones & Bartlett Learning, LLC
charged, though actual legal definitions of insanity • Some people may be NOT
insaneFOR SALE
but still ableOR
to DISTRIBUTION
have been—and continue to be—rather vague. In the distinguish right from wrong.
past, concepts such as madness, irresistible impulse, Subsequent rules have sought to overcome these
states of unsound mind or weak-mindedness, and weaknesses in the M’Naghten rule.
mental illness, disease, defect, or disorder have all
© Jones
been used to&inform
Bartlett Learning,
the law. 21 LLC © Jones & Bartlett Learning, LLC
NOT FOR SALE OR DISTRIBUTION Irresistible
NOTImpulse
FOR Test
SALE OR DISTRIBUTION
The M’Naghten Rule In 1897, the U.S. federal courts and a number of the
states added the irresistible impulse test to supplement
The M’Naghten rule, which is also known as the
the M’Naghten rule. According to this test, defendants
“right from wrong” test, is based on an English case
may be found not guilty by reason of insanity if they
that was decided in 1843. Daniel M’Naghten, a
Scottish woodcutter, believed that the English Prime © Jones & Bartlett
can prove Learning,
that a mental LLCloss of self-con-
disease caused
NOT FOR SALE OR DISTRIBUTION trol over their conduct.
NOT FOR SALE OR DISTRIBUTION This test arose from an 1886
Alabama Supreme Court decision in Parsons v. State,
Key Terms which held that it may be possible for a person to know
that the action was wrong but nevertheless to be so
excuses
overcome by emotion that he or she temporarily lost
Claims based on a defendant admitting that what
he or she did was wrong but arguing that, under the
LLC
self-control or the ability to© Jones
reason to a& Bartlett
degree suffi- Learning, LLC
23
circumstances, he NOT FOR
or she was notSALE cient
ORforDISTRIBUTION
responsible the to prevent the act. In revising the M’Naghten
criminal act. rule, the irresistible impulse test allowed defendants
to raise the insanity defense and plead that, although
M’Naghten rule
they knew that what they were doing was wrong, they
Insanity defense claim that because of a defect of
reason from a disease of the mind, the defendant
were unable to control their behavior.
©was
Jones
unable & Bartlett right
to distinguish Learning, LLC
from wrong. © Jones & Bartlett Learning, LLC
NOT FOR SALE OR
irresistible impulse test
DISTRIBUTION Durham NOT
Rule FOR SALE OR DISTRIBUTION
The Durham rule, which states that “an accused
An insanity test that determines whether a defendant,
[person] is not criminally responsible if his unlaw-
as a result of a mental disease, temporarily lost self-
control or the ability to reason sufficiently to prevent
ful act was the product of mental disease or mental
the crime. defect,” was formulated in Durham v. United States
Durham rule in 1954.24 According to the Durham rule, a mental
An insanity test that determines whether a defendant’s
NOT FOR SALE
condition mayOR be DISTRIBUTION
either a disease (a condition
act was a product of a mental disease or defect. capable of improving or deteriorating) or a defect (a
9781284133479_CH03_047_065.indd 56 12/08/16 4:04 PM


Headline CrimeLLC © Jones & Bartlett Learning, LLC
Movie Theater Shooter Ruled Sane
On July 20, 2012, then–graduate student James Holmes
walked into a movie theater in Aurora, Colorado, and
opened fire. It was opening night for the third install-
ment of the Dark Knight franchise. Holmes killed 12 NOT FOR SALE OR DISTRIBUTION
people and injured 70 others. Multiple psychiatric
evaluations resulted in Holmes being diagnosed with
schizophrenia. Colorado, which uses a combination of
the M’Naghten rule and the irresistible impulse test,
©placed
Jones the & Bartlett
burden on theLearning, LLCwhether
jury to determine © Jones & Bartlett Learning, LLC
Holmes
NOT FORknewSALE
what heORwas DISTRIBUTION
doing and if what he was NOT FOR SALE OR DISTRIBUTION
doing was wrong on the night of July 20. After 46 days
of testimony, the jury determined that Holmes was
sane at the time he committed the crime. As District
Attorney Brauchler stated in court “he leaves nothing to
chance,” in fact “he’s planned for all the contingencies
and all of that planning goes to [his] intent.” Holmes
NOT FOR SALEwas convicted of 24 counts of murder, 140 counts ofNOT James
OR DISTRIBUTION FORHolmes SALE sitsOR in court during his trial.
DISTRIBUTION
© RJ Sangosti/Pool Denver Post/AP Photo.
attempted murder, and a single explosives charge for
an explosive device he set in his apartment complex
before going to the theater. In August 2015, Holmes attacked Holmes and told the media “I’m so sorry I
was sentenced to multiple life prison terms, plus 3318 couldn’t wipe him out and sent [sic] him packing to
years for the attempted murder charges. He is ineligible Satan’s lake of fire.” Holmes has © since
Jones been& Bartlett Learning, LLC
transferred
for parole. Holmes was being held in the Colorado State to a prison outside of Colorado to serve out the rest
NOT FOR SALE OR DISTRIBUTION of his life sentence.
Penitentiary; however, in early 2016 a fellow inmate
Source: DenverChannel.com. (2015). James Holmes guilty in Aurora Colorado theater shooting; Jury did not believe insanity defense. Retrieved from
http://www.thedenverchannel.com/news/movie-theater-shooting/james-holmes-guilty-in-aurora-colorado-theater-shooting-jury-did-not-believe-
insanity-defense; O’Neill, A. (2015). Theater shooter Holmes gets 12 life sentences, plus 3,318 years. Retrieved from http://www.cnn.com/2015/08/26
/us/james-holmes-aurora-massacre-sentencing/; Walker, L. (2016). Aurora shooter James Holmes secretly moved after prison assault. Retrieved from
http://www.newsweek.com/aurora-shooter-james-holmes-secretly-moved-after-prison-assault-433501.
condition not considered capable of improving or The terms mental disease or defect do not include
deteriorating). Further, the Durham rule states that a an abnormality manifested only by repeated crim-
defect could LLCthe result of injury, or the© Jones
be congenital, inal&orBartlett
antisocialLearning,
conduct.25 LLC
residual
NOT FOR SALE OReffect of either physical or mental disease.NOT FOR SALE OR DISTRIBUTION
DISTRIBUTION The substantial capacity test is broader than the
Under the Durham test, the prosecutor must prove
M’Naghten rule because it substitutes the notion
beyond a reasonable doubt that the defendant was
of “appreciate” for “know,” thereby eliminating the
not acting as a result of mental illness, but the jury
M’Naghten requirement that a person be able to
determines whether the act was a product of such
fully distinguish right from wrong. In other words,
disease or defect. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC
a defendant may know the difference between right
NOT FOR SALE OR DISTRIBUTION and wrong yet not be able NOT FOR SALE
to appreciate OR DISTRIBUTION
the signif-
The Substantial Capacity Test
icance of that difference. The substantial capacity
The Durham rule, like its predecessors, was soon
test absolves from criminal responsibility a person
criticized. Specifically, critics argued that it provided
who knows what he or she is doing, but is driven to
no useful definition of “mental disease or defect.” In
act by delusions, fears, or compulsions.26 Like the
© Jones
1962, & Bartlett
the American Learning,
Law Institute LLC
offered a new test © Jones & Bartlett Learning, LLC
NOT
for FORinSALE
insanity its ModelORPenalDISTRIBUTION
Code. Known as the NOT FOR SALE OR DISTRIBUTION
substantial capacity test or Model Penal Code test,
it includes the following provisions: Key Terms
A person is not responsible for criminal conduct if, substantial capacity test
due to mental disease or defect, he or she lacks the An insanity test thatLearning,
determines whether
© Jones & Bartlett Learning, LLC © Jones & Bartlett LLCthe defendant
substantial capacity to appreciate the criminality lacked sufficient capacity to appreciate the wrongfulness
(wrongfulness) of his or her conduct or to conformNOT FOR SALE
of his or OR DISTRIBUTION
her conduct.
to the requirements of law.
9781284133479_CH03_047_065.indd 57 12/08/16 4:04 PM

Durham rule, the substantial capacity test places Guilty, but Mentally Ill
the burden LLC a reasonable doubt on© Jones & Bartlett Learning, LLC
of proof beyond
the prosecutor. NOT At
FORleast 10 states have adopted statutes permitting a
defense of guilty, but mentally ill (GBMI), or “guilty,
In 1972, in United States v. Brawner, the federal courts
but insane” (GBI—a variation on GBMI).29 This verdict,
rejected the Durham rule and adopted a modified which is a supplement to the traditional defense of
version of the substantial capacity test.27 By 1982, it insanity, allows a jury to find the accused guilty and
was being used in 24 states, the District of Columbia, impose a punishment of subsequent
and the federal courts.
LLC © Jonesincarceration.
NOT FOR SALE OR DISTRIBUTION It also requires prison authorities
NOT to FORprovide
SALEpsychi-
OR DISTRIBUTION
atric treatment to the convicted offender during the
Insanity Defense Reform Act of 1984 specified period of confinement.
Until 1981, the substantial capacity test dominated See Table 3.2 for a list of the insanity rules used
federal and state practice. Matters changed after by the states and Washington DC.
March
© Jones30, 1981, when John
& Bartlett Hinckley, LLC
Learning, Jr., shot and Supporters of GBMI&and
© Jones GBI statutes
Bartlett argue that
Learning, LLC
wounded President Reagan.
NOT FOR SALE OR DISTRIBUTION At his trial, experts testified these laws will reduce the number of
NOT FOR SALE OR DISTRIBUTION determinations
that Hinckley was psychotic and had been suffering of not guilty by reason of insanity and, consequently,
from delusions. A little more than a year after the hold more people criminally responsible for their
shooting, the jury returned a verdict of “not guilty actions. In addition, they claim that such statutes
by reason of insanity” for Hinckley. will increase protection for the public by ensuring
As a result of widespread criticism over Hinckley’s © Jones & Bartlett
that offenders Learning,
are subject LLC
to incarceration and treat-
30
acquittal, Congress
NOT FOR SALE OR DISTRIBUTION restricted the use of the insanity NOT FOR SALE OR DISTRIBUTION Mentally
ment. See “Headline Crime: Guilty, but
defense in federal cases, and a number of states quickly Ill” for recent examples of cases involving GBMI
followed suit. The Insanity Defense Reform Act of convictions.
1984, passed as part of the larger Comprehensive
Crime Control Act of 1984, states:
Intoxication
It is an affirmative defense to a prosecution under The defense of intoxication is based on the claim
any Federal statuteNOTthat,
FOR SALE
at the time OR DISTRIBUTION
of the com- NOT FORcontrol
that the defendant had diminished SALEoverOR DISTRIBUTION
mission of the acts constituting the offense, the him- or herself owing to the influence of alcohol,
defendant, as a result of a severe mental disease narcotics, or other drugs, and therefore lacked
or defect, was unable to appreciate the nature criminal intent. According to the Model Penal
and quality of the wrongfulness of his [or her] Code, the© defense
© Jones & Bartlett Learning, LLC Jonesof&intoxication should not LLC
Bartlett Learning, be
acts . . . The defendant has the burden of proving used unless it negates an element in the crime, such
NOT FOR SALE
the defense OR by
of insanity DISTRIBUTION
clear and convincing as criminal NOT FOR SALE OR DISTRIBUTION
intent.
28
evidence. The courts recognize a difference between involuntary
intoxication and voluntary intoxication. Involuntary
A significant part of the Insanity Defense Reform intoxication that results from mistake, deceit of others,
Act is the shifting of the burden of proof from the or duress (for example, if a drug was unknowingly put
© Jones & Bartlett
prosecution Learning, LLC
to the defense and the limitations placed© Jones & Bartlett Learning, LLC
in the person’s drink, or if liquor was forcibly poured
on the role of experts. The defense now has NOT down
the FORthe SALE ORthroat)
person’s DISTRIBUTION
will excuse the defendant
burden to prove, through the presentation of clear from responsibility for criminal action that resulted
and convincing evidence, that the defendant lacked from the intoxication.
capacity. Furthermore, expert witnesses who testify Voluntary intoxication is generally not a defense,
about the mental state or condition of a defendant but it may be presented in an effort to mitigate the
are prohibited from © Jones
giving an& opinion
BartlettorLearning,
drawing LLC © Jones & Bartlett Learning, LLC
seriousness of the crime. A person charged with
an inference as toNOT FOR SALE OR DISTRIBUTION
whether the mental state of the committing premeditated murder NOT FOR SALE OR DISTRIBUTION
while voluntarily
defendant constituted an element of the crime. intoxicated, for example, may be able to have the
Rather, such conclusions are to be drawn solely by charge reduced to the less serious charge of homi-
the judge or the jury. cide. In 2005, in Lawrence, Kansas, Jason Dillon,
who was charged with murdering his girlfriend’s
Key Term 3-year-old daughter, cited “voluntary intoxication”
NOT FOR SALE OR DISTRIBUTION as a factorNOTin his FOR
crime.SALE OR DISTRIBUTION
Dillon claimed that he had
guilty, but mentally ill (GBMI)
A substitute for traditional insanity defenses, consumed 16 beers the night before he babysat the
which allows the jury to find the defendant guilty young girl and was incapable of acting intentionally.
and requires that the prisoner receive psychiatric Dillon did not dispute that he struck the girl on the
treatment during his or her confinement. Also called head more than a dozen times after she refused to
guilty but insane (GBI). help pick up laundry and told him she didn’t want
9781284133479_CH03_047_065.indd 58 12/08/16 4:04 PM

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

State Learning, LLC
© Jones & Bartlett Insanity Defense Rule © Jones & Bartlett
for BurdenLearning,
of Proof LLC
and GBI Verdicts
Alabama M’Naghten rule NOT FOR SALE OR DISTRIBUTION
Defendant No
Alaska M’Naghten rule Defendant Yes
Arizona M’Naghten rule Defendant Yes
Arkansas Model Penal Code Defendant No
California M’Naghten rule Defendant No
Colorado M’Naghten rule; irresistible impulse test State No
Connecticut
NOT FOR SALE
Model Penal Code
OR DISTRIBUTION Defendant
NOT FOR
No
Delaware Model Penal Code Defendant No
District of Columbia Model Penal Code Defendant No
Florida M’Naghten rule State No
Georgia M’Naghten rule © Jones & BartlettYesLearning, LLC
Defendant
HawaiiFOR SALE OR
NOT Model Penal Code
DISTRIBUTION State
NOT FOR SALE OR No DISTRIBUTION
Idaho Insanity defense abolished Yes
Illinois Model Penal Code Defendant No
Indiana Model Penal Code State Yes
Iowa M’Naghten rule Defendant No
© Jones & Bartlett
Kansas Learning, LLC
Insanity defense abolished © Jones & Bartlett Learning, LLC
Yes
Kentucky Model Penal Code NOT FOR SALE OR DISTRIBUTION
Defendant No
Louisiana M’Naghten rule Defendant No
Maine Model Penal Code Defendant No
Maryland Model Penal Code Defendant No
Massachusetts © Jones Model
& Penal Code Learning, LLC
Bartlett State No & Bartlett Learning, LLC
© Jones
Michigan Model Penal Code Defendant No
Minnesota M’Naghten rule Defendant No
Mississippi M’Naghten rule State No
Missouri M’Naghten rule Defendant No
Montana Insanity defense abolished Yes
©Nebraska
Jones & Bartlett M’Naghten
Learning, ruleLLC © Jones & BartlettNoLearning, LLC
Defendant
NOT
Nevada FOR SALE ORM’Naghten
DISTRIBUTION
rule NOT FOR SALE OR Yes DISTRIBUTION
New Hampshire Durham rule Defendant No
New Jersey M’Naghten rule Defendant No
New Mexico M’Naghten rule; irresistible impulse test State No
New York Model Penal Code Defendant No
North Carolina M’Naghten rule © Jones & Bartlett
DefendantLearning, LLC
No
NOT FOR SALENorth OR DISTRIBUTION
Dakota Model Penal Code NOT FOR SALE State OR DISTRIBUTION
No
Ohio M’Naghten rule Defendant No
Oklahoma M’Naghten rule State No
Oregon Model Penal Code Defendant Yes
Pennsylvania M’Naghten rule State Yes
Rhode Island Model Penal Code Defendant No
South Carolina
NOT FOR SALE OR DISTRIBUTION Defendant
M’Naghten rule
NOT No
South Dakota M’Naghten rule Defendant No
Tennessee Model Penal Code State No
Texas M’Naghten rule; irresistible impulse test Defendant No
©Utah
Jones & Bartlett Insanity
Learning, LLC
defense abolished © Jones & BartlettYes
Learning, LLC
NOT
Vermont FOR SALE ORModel DISTRIBUTION
Penal Code NOT FOR SALE OR
State No DISTRIBUTION
Virginia M’Naghten rule; irresistible impulse test Defendant No
Washington M’Naghten rule Defendant No
West Virginia Model Penal Code State No
Wisconsin Model Penal Code Defendant No
© Jones & Bartlett
Wyoming Learning, LLCModel Penal Code © Jones & Bartlett
DefendantLearning, LLC
No
Source: U.S. Department of Justice Statistics. (2006). The defense of insanity: Standards and procedures, state court organization, 2004.
Washington, DC: U.S. Department of Justice Statistics; Table 35.
9781284133479_CH03_047_065.indd 59 12/08/16 4:04 PM


Headline CrimeLLC © Jones & Bartlett Learning, LLC
Guilty, but Mentally Ill
Guilty, but mentally ill (GBMI) convictions are probably heard voices, and suffered from dementia from
more common than acquittals based on successful insanity
© Jones & Bartlett Learning, LLC closed
defenses. The following recent cases illustrate the variety
head injuries. As a result of the plea agree-
ment, Cobb was sentenced to 12 years in prison and
of situations in which GBMI convictions are obtained. 3 years of probation. NOT FOR SALE OR DISTRIBUTION
• A judge found Cynthia Lord, age 45, GBMI in the
• On August 10, 2010, Peterson Haak, age 30, was
murder of her three sons, ages 16, 18, and 19 years
found GBMI and faces up to 20 years in prison.
old, whom she feared had become evil clones or
Haak was charged with first-degree home invasion,
robots. Each boy died from a single gunshot wound
aggravated assault, and resisting and obstructing
a police officer during an incident in which he
to the © Jones
head. & Bartlett
According to the judge, Learning,
Lord suffersLLC
NOTattacked
FOR SALE OR DISTRIBUTION from aNOTsevere,FOR
disabling
SALE mentalOR illness. The three
DISTRIBUTION
a couple in their 80s after breaking into
first-degree murder convictions mean that Lord could
their home. Assistant Prosecutor Patrick O’Keefe
spend up to 99 years in a psychiatric institution. If
stated that although Haak had consumed at
at some point she is found mentally stable, she will
least 16 alcoholic beverages during the day and
be transferred to a correctional institution.
evening prior to the assault, he should still be
• On October 26, 2007, Jeanette Sliwinski, 25, was
held accountableLLCfor his actions. Haak, a medical© Jones & Bartlett Learning, LLC
found GBMI for three charges of reckless homi-
NOT FOR SALE OR student at Michigan State University, was expelledNOT FOR SALE OR DISTRIBUTION
DISTRIBUTION cide. Sliwinski claimed that she had been trying to
shortly after the incident.
commit suicide when she intentionally crashed her
• Billy Paul Cobb was found GBMI on March 7, 2007.
Mustang into a Honda Civic at 87 miles per hour.
Cobb pleaded guilty to child molestation, aggra-
Three Chicago musicians—Michael Dahquist, 39;
vated child molestation, three counts of enticing
John Glick, 35; and Douglas Meis, 29—who were
a child for indecent purposes, and three counts of
interference with custody. In late December 2005,
LLC © Jones
stopped at a light when Sliwinski’s & Bartlett
car crashed into Learning, LLC
them, were killed. Sliwinski’s attorney claimed that she
NOT FOR
Cobb was arrested SALE
for taking three OR DISTRIBUTION
girls, ages 11, NOT FOR SALE OR DISTRIBUTION
had been suffering from depression and was driven
12, and 13 years old, across state lines where he
into madness when her psychiatrists failed her. She
performed an act of sodomy on one of the girls.
faces a maximum of 10 years in prison where she
A psychologist testifying on Cobb’s behalf stated
will receive treatment while serving her sentence.
that Cobb showed signs of paranoid schizophrenia,
NOT
Source: FOR SALE
Ex-MSU student OR
guilty DISTRIBUTION
but mentally ill for beating elderly couple. Retrieved from PeopleNOT FOR
of the State SALE
of Michigan ORTodd
v Peterson DISTRIBUTION
Haak, 300834
M.I. (2011), http://www.michbar.org/file/opinions/appeals/2011/121311/50393.pdf; Adams, P. (2007, March 7). Accused child molester takes plea offer
of guilty, but mentally ill. Retrieved from http://www.independentmail.com/news/local/accused-child-molester-takes-plea-offer-of-guilty-but-mentally-
ill-ep-417069213-341908211.html; Associated Press. (2007, May 7). Mother found guilty, but mentally ill in shooting deaths of 3 sons. Retrieved from
http://www.foxnews.com/story/0,2933,272372,00.html; Horan, D., Kuczka, S., & Wang, A. (2008, September 24). Suicidal driver guilty, but ill. Chicago
Tribune. Retrieved from http://articles.chicagotribune.com/2008-09-24/news/0809240224_1_sentence-reduction-reckless-homicide-years-and-four-months.
him to be her daddy anymore. As a result of a plea permissible for law enforcement agents to solicit
bargain, Dillon was convicted of second-degree information from informants, use undercover offi-
murder rather than first-degree murder as initially cers, and even place electronic monitoring devices
charged; he was © Jones to
sentenced & Bartlett
a reducedLearning,
term of LLC
on informants or officers to © Jones & Bartlett Learning, LLC
record conversations
31
16½ years in prison.
NOT FOR SALE OR DISTRIBUTION regarding criminal behavior. It is not,
NOT FOR SALE however,
OR DISTRIBUTION
considered legitimate for police to encourage or
Entrapment coerce individuals to commit crimes when they had
The defense of entrapment is an excuse for criminal no previous predisposition to commit such acts.
actions based on the claim that the defendant was Government agents may not “originate a criminal
encouraged or enticed by agents of the state to engage © Jones
design, implant in an&innocent
Bartlettperson’s
Learning, LLC
mind the
in an act that he or she would not have committed dispositionNOT
to FOR
commit a SALE
criminalOR
act, DISTRIBUTION
and then induce
otherwise. The courts have generally held that it is commission of the crime so that the Government
may prosecute.”32
For an entrapment defense to be valid, two related
Key Term elements must be present:
entrapment 1. Government inducement of the crime
The claim that a defendant was encouraged or enticed
NOT FOR
2. TheSALE OR DISTRIBUTION
defendant’s lack of predisposition to engage
by agents of the state to engage in a criminal act. in the criminal conduct33
9781284133479_CH03_047_065.indd 60 12/08/16 4:04 PM

Predisposition is generally considered to be the more Mistake

© Jones & Bartlett
importantLearning, elements. Thus, entrapment© Jones
of these twoLLC & Bartlett Learning, LLC
Everyone has probably heard the expression, “Igno-
NOT FOR SALE
mightOR be occurring in a case in which the gov-NOT rance
not DISTRIBUTION FOR SALE OR DISTRIBUTION
of the law is no excuse.” But what does it mean?
ernment induces a person who is predisposed to Although we may be familiar with many laws, must
commit such an act. we be aware of all the laws? Must we know exactly
Over the years, many state and federal law enforce- what they prohibit and under what circumstances?
ment agencies have conducted “sting” operations Ignorance of what the law requires & orBartlett
prohibits Learning, LLC
that are designed to trap people who are engaged
© Jones
NOT FOR SALE crimes.
OR DISTRIBUTION generally does not excuse a person from committing
in crime or predisposed to commit Such a crime, but, under some circumstances, ignorance
operations often involve law enforcement agents has been accepted as a defense. A federal court
posing as prostitutes, drug buyers, buyers of stolen of appeals held in 1989 that “Under the proper
auto parts, and people attempting to bribe govern- circumstances . . . a good faith misunderstanding
ment officials. Do such activities create an illegal of the law ©may negate&willfulness.” 37
Mistake, asLLC
a
inducement to commit crime? In Sherman v. United
Jones Bartlett Learning,
NOT(1958),
FOR SALE criminal defense, takes two forms: mistake of law
States the U.S. OR DISTRIBUTION
Supreme Court held that “to NOT FOR SALE OR DISTRIBUTION
and mistake of fact.
determine whether entrapment has been established, Mistake of law occurs when the defendant does not
a line must be drawn between the unwary innocent know a law exists; only in rare cases is it a legitimate
and the trap for the unwary criminal.”34 Entrapment defense. Such a case might exist when a new law is
occurs when government activity in the criminal
enterprise crosses this line.
© Jones
passed&but
Bartlett Learning,
not published in timeLLCto give the public
NOT FOR SALE adequate notice of it. Mistake of fact occurs when a
TheOR
line DISTRIBUTION
suggested by the Supreme Court, however,NOT person
unknowingly violates the law because he or she
is often ambiguous. The use of deceit by the police believes some fact to be true when it is not. In other
to create a circumstance in which a person then words, had the facts been as a defendant believed them
commits a crime does not necessarily constitute to be, the defendant’s action would not have been a
entrapment. In United States v. Russell (1973), the
court held that:
© Jones & Bartlett Learning, LLC crime. For example, a woman©who Jones & Bartlett
is charged with the Learning, LLC
NOT FOR SALE OR DISTRIBUTION crime of bigamy may have believed that her divorce NOT FOR SALE OR DISTRIBUTION
[T]here are circumstances when the use of deceit was final before she remarried when, in fact, it was not.
is the only practicable law enforcement technique Mistake of fact is often raised as a defense by people
available. It is only when the government’s deception who are charged with selling alcohol to a minor or with
actually implants the criminal design in the mind committing statutory rape. In such cases, defendants
©ofJones & Bartlett
the defendant Learning,
that the defense ofLLC
entrapment © Jones
may have been & Bartlett
led to believe that theLearning, LLC
minor was older
comes
NOT FOR play.35 OR DISTRIBUTION
into SALE than he orNOT
she claimed
FOR SALE OR claim
because the appeared
DISTRIBUTION
consistent with the minor’s appearance.
Duress
The defense of duress presents the claim that the Exemptions
defendant is a victim, rather than a criminal. For In some situations, a defendant may raise the defense
© Jones & Bartlett
example, Learning, LLCa gun to a person’s head,© Jones
if someone holds & Bartlett Learning, LLC
that he or she is legally exempt from criminal respon-
threatening to shoot unless he or she steals money, theNOT sibility.
FOR SALE Unlike OR DISTRIBUTION
the defenses discussed earlier, legal
resulting theft would be considered an action under exemptions are not based on the question of the defen-
duress, and the thief should not be held criminally dant’s mental capacity or culpability for committing
responsible for complying with the demand to steal. the crime. Rather, they are seen as concessions to the
The Model Penal Code’s provision on duress states: defendant for the greater good of the public welfare.38
[It] is an affirmative
NOT defense
FORthat the actor
SALE ORengaged
DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
in the conduct charged to constitute an offense
Double Jeopardy
because he was coerced to do so by the use of, or The Fifth Amendment to the Constitution states that
a threat to use, unlawful force against his person “no person shall be subject for the same offense to be
or the person of another, which a person of rea- twice put in jeopardy of life or limb.” This protection
©sonable
Jonesfirmness
& Bartlettin his Learning, LLC
situation would have been against double jeopardy
© Jones is not intended
& Bartlett to provide
Learning, LLC
36
unable
NOT FORto resist.
SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
This defense is not applicable to people who inten- Key Terms
tionally, recklessly, or negligently place themselves in duress
situations in which it is probable that they will be The claim that the defendant is a victim, rather than
subject to duress. For example, a person who, in the a criminal.
course of escaping from prison, commits a kidnap- double jeopardy
NOT FOR SALE OR
ping to DISTRIBUTION
avoid being caught cannot claim duress as aNOT FOR SALE OR DISTRIBUTION
Trying a person for the same crime more than once;
defense against the charge of kidnapping. it is prohibited by the Fifth Amendment.
9781284133479_CH03_047_065.indd 61 12/08/16 4:04 PM

protection for guilty defendants, but rather is meant

to prevent LLCrepeatedly prosecuting© Jones & Bartlett Learning, LLC
the state from
NOT FOR SALE ORfor
a person the same charge until a conviction isNOT FOR SALE OR DISTRIBUTION
DISTRIBUTION
finally achieved.39 Jeopardy in a bench trial (a case
tried before a judge rather than a jury) attaches (i.e.,
becomes activated) when the first witness is sworn in.
In jury trials, some jurisdictions consider a defendant
to be in jeopardy once the jury is selected, though a
few define it at theNOT FOR
point of SALEwhen
indictment, OR criminal
DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
charges are filed.
Double jeopardy does not apply when a court
proceeding is ruled a mistrial on the motion of
the defense or when a jury is unable to agree on a
verdict and the judge declares a mistrial. In both cir-
NOT FORthe
cumstances, SALE OR DISTRIBUTION
prosecutor may retry the case. Also, NOT FOR SALE OR DISTRIBUTION
if upon conviction a defendant appeals to a higher
court and has the conviction reversed, he or she may
be retried on the original charge.
© baobao ou/Moment/Getty.
© Jones & Bartlett
Statute Learning, LLC
of Limitations © Jones & Bartlett Learning, LLC
NOT FOR SALE
Under common law, there was no limit to the amountNOT FOR SALE OR DISTRIBUTION
OR DISTRIBUTION
of time that could pass between a criminal act and the
state’s prosecution of that crime. However, the states a 12-guage shotgun, fired through the window of
and the federal government have enacted statutes of the home, hit and killed MaKayla. The boy, whose
limitations establishing the maximum time allowed
between the act and its prosecution by the state for
name was not released, at © theJones
time of & Bartlett
this writing, Learning, LLC
NOT FORcases
SALE OR DISTRIBUTION was still being held in a juvenile detention
NOT FOR SALE facility
OR DISTRIBUTION
most crimes. Thus, in some a defendant may while prosecutors decide if they will charge him as
raise the defense that the statute of limitations for a minor or an adult.40
the crime has expired, which requires a dismissal of Although not considered either a justification
the charges. or an excuse for a criminal act, a person’s age may
Statutes of limitations vary by jurisdiction and
are generally longer for more serious offenses. For
establish a©defense
Jonesagainst
& Bartlett Learning,
criminal LLC
prosecution.
NOT FOR SALE OR DISTRIBUTION Under early English
NOT FORcommon
SALE law,
OR children younger
DISTRIBUTION
instance, murder has no statute of limitations, whereas than age 7 years were considered incapable of form-
in many states burglary carries a five-year limitation. ing criminal intent and, therefore, could not be
Misdemeanors have a two-year limitation period in convicted of crimes. Children between the ages of
most jurisdictions. The statute of limitations may, 7 and 14 were considered to have limited criminal
however, be interrupted if the defendant leaves the responsibility, andLearning,
children older than age 14 were
© Jones & Bartlett
state. ForLearning,
example, if aLLC
person who is charged with© Jones & Bartlett LLC
presumed to have the capacity to form criminal
NOT FOR SALE
assaultOR DISTRIBUTION
leaves the state for a period of two years, anNOT intent
and could be criminally prosecuted. With the
additional two years would be added to the statutory creation of the juvenile court system in the United
limit of five years. States at the end of the 19th century, most youths
Age between ages 7 and 17 who were charged with
crimes were processed through the more informal Learning,
In October 2015,©anJones & Bartlett
11-year-old boy wasLearning,
charged LLC
proceedings of that court.
© Jones & Bartlett
LLC
with first-degree NOTmurder FOR SALE
of his OR DISTRIBUTION
8-year-old neigh- NOT FOR SALE OR DISTRIBUTION
bor, MaKayla Dyer. The young boy was speaking
to MaKayla and her sister from inside his family Due Process and the Rights
member’s home. The two girls were playing with of the Accused
puppies and talking to the boy from outside of the
© Jones
home. & Bartlett
Reports Learning,
indicate that LLC to play
the boy asked Due process,© Jones
which & Bartlett Learning,
is established LLC
in procedural
with a puppy and upon MaKayla’s refusal, he grabbed criminal NOT
law, FOR
ensures SALE
the OR DISTRIBUTION
constitutional guarantees
of a fair application of the rules and procedures in
criminal proceedings, beginning with the investigation
of crimes and continuing through an individual’s
Key Term arrest, prosecution, and punishment. There is not
always&agreement
Bartlett over
Learning, LLCof due process,
the concept
statute of limitations
The maximum time period that can pass between a
NOT FOR
its SALE
specific OR DISTRIBUTION
applications, or even who is eligible to
claim the rights associated with the guarantees of
criminal act and its prosecution.
due process.
9781284133479_CH03_047_065.indd 62 12/08/16 4:04 PM

When a person is arrested, the immediate concern search their homes or other property, or confiscate
© Jones & Bartlett
typically Learning, LLC he or she committed© Jones
focuses on whether & Bartlett
materials withoutLearning, LLC Such justifi-
legal justification.
NOT FOR SALE OR How
the crime. does a court of law make this deter-NOT cation
must beOR DISTRIBUTION
based on sufficient probable cause
mination? The police might threaten or coerce the to convince a judicial magistrate to issue a search
suspect to extract a confession, and some people warrant specifically describing who or what is to
might confess to crimes they did not commit to be searched and what is to be seized. Any evidence
avoid further mistreatment. Evidence might also seized as a result of searches in violation of the
be presented to establish the individual’s guilt even
Fourth Amendment cannot be used in a subsequent
NOT FOR SALE OR
though that evidence was obtained by devious or DISTRIBUTION
criminal prosecution. NOT FOR SALE OR DISTRIBUTION
unethical means (for example, searching a person’s
private property without a search warrant). The The Fifth Amendment
accused might be held in jail without bail and denied The Fifth Amendment contains four separate proce-
access to an attorney while the government builds dural protections:
a convincing case. Although convictions might be
obtained in such instances, such procedures would NOT
1. A person may FOR
not faceSALE
criminalOR DISTRIBUTION
prosecution unless
offend the public’s sense of fairness related to the the government has first issued an indictment
criminal process. stating the charges against the person.
The principles of procedural fairness in criminal 2. No person may be tried twice for the same offense
cases are designed to reduce the likelihood of erro- (double jeopardy).
neous convictions. Criminal procedures that produce
© Jones & Bartlett
3. The government Learning, LLC a defendant
may not compel
convictions of large numbers of innocent defendants NOT FOR SALE OR DISTRIBUTION
to testify against him- or herself. (This provision
would be patently unfair. The evolution of procedural includes protection against self-incrimination
safeguards against unfair prosecution is based on a during questioning and the right to refuse to
relative assessment of the interests at stake in a criminal testify during a criminal trial.)
trial. According to law professor Thomas Grey, “While 4. No person may be deprived of due process, which
© Jones & Bartlett Learning, LLC means that people should
it is important as a matter of public policy (or even
© Jones
be treated&fairly
Bartlett
by the Learning, LLC
of abstract justice) to punish the guilty, it is a very NOT FOR
government in criminal prosecutions. SALE OR DISTRIBUTION
41
great and concrete injustice to punish the innocent.”
In U.S. criminal law, procedural safeguards have been The Sixth Amendment
established in the Fourth, Fifth, Sixth, Eighth, and The Sixth Amendment was designed to ensure a fair
Fourteenth Amendments to the U.S. Constitution to trial for defendants.
prevent that problem from occurring.
© JonesToward this end,
& Bartlett it established
Learning, LLC
six specific rights:
1. Speedy and public trial
The Bill of Rights 2. Trial by an impartial jury (which has been inter-
The first 10 amendments, known as the Bill of preted by the courts to mean a jury of one’s peers)
Rights, were added to the Constitution on Decem- 3. Notification of the nature and cause of the charges
© Jones & Bartlett Learning,3 LLC
ber 15, 1791—only years after the Constitution© Jones & BartletttoLearning,
4. Opportunity LLC called by the
confront witnesses
had been ratified by the states. The framers of the prosecution
Constitution had intended it to provide citizens 5. Ability to present witnesses on the defendant’s
with protections against a possible future dictator- own behalf
ship by establishing a clear separation of powers 6. Assistance of an attorney in presenting the
between the three branches of government (exec- defendant’s defense
utive, legislative, © Jones
and & Bartlett
judicial). Learning,
All too soon, they LLC © Jones & Bartlett Learning, LLC
realized that the individual rights of citizens were The Eighth Amendment NOT FOR SALE OR DISTRIBUTION
not adequately protected against possible intru- The Eighth Amendment simply states, “Excessive bail
sions and violations by the newly formed federal shall not be required, nor excessive fines imposed, nor
government. To correct this deficiency, they added cruel and unusual punishments inflicted.” Although
a series of amendments to the Constitution. Four of this amendment does not guarantee a defendant
© Jones
these & Bartlett
amendments Learning,
enumerate LLC
the rights of citizens © Jones
the constitutional &toBartlett
right Learning,
be released LLC
on bail while
NOT
in FORproceedings.
criminal SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
awaiting trial, it does prohibit the imposition of
excessive bail.
The Fourth Amendment
The Fourth Amendment protects citizens against The Fourteenth Amendment
unreasonable governmental invasion of their privacy. For nearly 80 years after the adoption of the Bill of
This amendment means that agents of the govern- Rights, the federal government and the various states
ment may not arbitrarily or indiscriminately stop NOT FOR SALE
interpreted OR enumerated
the rights DISTRIBUTION
in these amendments
and search people on the street or in their vehicles, to apply only to cases involving disputes between
9781284133479_CH03_047_065.indd 63 12/08/16 4:04 PM

citizens and the federal government: The protections

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

the states.
of Rights to place limits on state action.45 At the time,

Incorporation of the
© Jones & Bartlett Bill LLC
Learning, © Jones & Bartlett Learning, LLC
Black’s position was in the minority on the court. The
of Rights
NOT FOR SALE OR DISTRIBUTION NOT FOR
majority opinion, led by SALE ORFrankfurter,
Justice Felix DISTRIBUTION
held
The process of incorporation of the Bill of Rights that, although the concept of due process incorporated
occurred only gradually and reflected a major split fundamental values—one of which was fairness—it
within the Supreme Court. In 1947 in Adamson v. was left to judges to objectively and dispassionately
California, Justice Hugo Black strongly called for discover and apply these values to any petitioner’s
© Jones & Bartlett Learning,arguing
total incorporation, LLC that the authors of the© Jones
claim& of Bartlett Learning,
injustice. Therefore, LLC to Frankfurter,
according
Fourteenth Amendment originally intended the BillNOT the
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processOR DISTRIBUTION
clause only selectively incorporated
those provisions necessary to fundamental fairness.
In a series of cases, the fundamental values protecting
the First Amendment freedoms of speech, religion,
and assembly were held to be binding on the states,
Key Terms © Jones & Bartlett Learning, LLC © Jonesagainst
but the Fifth Amendment’s protection & Bartlett
double Learning, LLC
Hurtado v. California jeopardy was not. 46 NOT FOR SALE OR DISTRIBUTION
Supreme Court decision that the Fifth Amendment In 1953, when Earl Warren was appointed Chief
guarantee of a grand jury indictment applied Justice of the Supreme Court, a liberal majority was
only to federal—not state—trials, and that not all formed on the court. It rapidly expanded the appli-
constitutional amendments were applicable to the cation of the due process clause to the states. Over
©states.
Jones & Bartlett Learning, LLC the next two© Jones
decades, & the
Bartlett
WarrenLearning, LLC
Court handed
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incorporation SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION
down numerous decisions establishing individual
The legal interpretation by the U.S. Supreme Court in and civil rights, and clearly moved the court from
which the Fourteenth Amendment applied the Bill of its fundamental fairness position to one of absolute
Rights to the states. compliance.
9781284133479_CH03_047_065.indd 64 12/08/16 4:04 PM

WRAP UP
CHAPTER HIGHLIGHTS
• Laws are formalized rules that reflect a body held criminally responsible for that action.
of principles©prescribing
Jones &orBartlett
limiting Learning,
people’s LLC These circumstances involve© Joneslegal & Bartlett Learning, LLC
justifications
actions. The laws collectively known as criminal NOT FOR SALE
and excuses, or defenses that negate a person’s OR DISTRIBUTION
law are generally divided into the subcategories criminal responsibility.
of substantive law and procedural law. Together, • Although the insanity defense is successfully
they provide the framework for the criminal raised in less than 1% of all criminal cases, it
justice system. remains very controversial. The federal govern-
©• Jones & Bartlett
Most criminal law inLearning, LLC has its
the United States ment ©andJones
many of&theBartlett Learning,
states have LLC
revised their
origins in English common law. One of the most NOT FOR SALE OR DISTRIBUTION
insanity statutes in recent years, and several have
important contributions from common law was developed “guilty, but mentally ill” statutes to
stare decisis (the doctrine of precedent). supplement other insanity defenses.
• Crimes have generally been conceptually divided • Procedural criminal law establishes protections
between those considered to be mala in se (inher- for individuals against unfair prosecution. These
© Jones & Bartlett
entlyLearning,
wrong or evil LLC
acts) and those considered© Jones safeguards
& Bartlett areLearning,
found in the LLC
Fourth, Fifth, Sixth,
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be mala prohibita (acts that are wrong because NOT FOR SALE OR DISTRIBUTION
and Eighth Amendments contained in the Bill
they are prohibited by a criminal statute). Crim- of Rights.
inal codes further distinguish crimes as felonies, • The constitutional protections found in the Bill
misdemeanors, and infractions. of Rights were initially interpreted to apply only
• For an act to be defined as a crime, a number of in federal prosecutions. It was not until the rat-
elements must©beJones
present: & Bartlett
actus Learning,
reus (criminal act), LLC ification of the Fourteenth© Jones & Bartlett
Amendment, which Learning, LLC
mens rea (criminal intent), and the concurrence occurred nearly 80 years after the adoptionOR
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of these two concepts. the Bill of Rights that they began to be applied
• In certain circumstances, an individual might to the states as well.
engage in an act defined as a crime, yet not be
DIGGING DEEPER
1. Is a criminal act by a person who is a “victim” of crimes always face eventual possible prosecution
an unjust LLC wrong? Who should© Jonesfor
society morally & their
Bartlett
acts? Learning, LLC
determine if,
NOT FOR SALE OR DISTRIBUTIONand to what extent, a society is unjust? 5. Should inchoate offenses be charged differently
2. Why is mens rea (criminal intent) such an important than completed crimes? By minimizing the
element to establish in a criminal case? Should sentence for getting caught in the act, is the
parents be held criminally liable for the gang-re- system unduly rewarding offenders with reduced
lated activities of their children? sentences?
© Jones
3. Should the insanity & Bartlett
defense be allowed? Learning,
Should LLC
6. Are the guarantees of © Jones
due process&for
Bartlett
people Learning, LLC
all states adoptNOT
“guilty, but mentally ill” or
FOR SALE OR DISTRIBUTION“guilty, accused of crimes reasonable? Do they
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but insane” statutes? Why or why not? more difficult to deal with the crime problem?
4. Why should there be any statutes of limitation Why are they so important to protect?
in criminal law? Should persons who commit
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Criminal Law: The Foundation of Criminal Justice: Objectives

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© Jones & Bartlett Learning LLC, an Ascend Learning Company. NOT FOR SALE OR DISTRIBUTION.

© Jones & Bartlett Learning, LLC

© Jones & Bartlett Learning, LLC

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

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48 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

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PART 1 Crime and Criminal Justice 49

Administrative Rules Seriousness of the Crime

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50 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

© Jones & Bartlett

or they were wrong© Jones & Bartlett

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PART 1 Crime and Criminal Justice 51

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52 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

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PART 1 Crime and Criminal Justice 53

under the doctrine of transferred intent. The intent Self-Defense

© Jones & Bartlett Learning,

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54 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

© Jones & Bartlett

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PART 1 Crime and Criminal Justice 55

of property. These new laws—referred to as “stand

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56 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

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PART 1 Crime and Criminal Justice 57

© Jones & Bartlett Learning,

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58 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

9781284133479_CH03_047_065.indd 58 12/08/16 4:04 PM

Responsibility Allows GBMI

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60 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

© Jones & Bartlett Learning,

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PART 1 Crime and Criminal Justice 61

Predisposition is generally considered to be the more Mistake

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62 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

protection for guilty defendants, but rather is meant

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PART 1 Crime and Criminal Justice 63

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64 CHAPTER 3 Criminal Law: The Foundation of Criminal Justice

citizens and the federal government: The protections

rights described in these amendments applicable to

of Rights to place limits on state action.45 At the time,

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PART 1 Crime and Criminal Justice 65

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