Criminal Law and Procedure Fifth Edition docx

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Director: Wendy Troeger Cengage Learning products are represented in Canada by Nelson Education, Ltd Production Manager: Mark Bernard For your lifelong learning solutions, visit delmar.cengage.com Content Project Manager: David Plagenza Visit our corporate website at cengage.com Art Director: Joy Kocsis Printed in Canada XX 10 09 08 ISBN-13: 978-1-4283-4059-6 ISBN-10: 1-4283-4059-9 Notice to the Reader Publisher does not warrant or guarantee any of the products described herein or perform any independent analysis in connection with any of the product information contained herein Publisher does not assume, and expressly disclaims, any obligation to obtain and include information other than that provided to it by the manufacturer The reader is expressly warned to consider and adopt all safety precautions that might be indicated by the activities described herein and to avoid all potential hazards By following the instructions contained herein, the reader willingly assumes all risks in connection with such instructions The publisher makes no representations or warranties of any kind, including but not limited to, the warranties of fitness for particular purpose or merchantability, nor are any such representations implied with respect to the material set forth herein, and the publisher takes no responsibility with respect to such material The publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or part, from the readers’ use of, or reliance upon, this material To Stace Who I love and respect more every year This page intentionally left blank Contents Preface to the Fifth Edition Acknowledgments xvii About the Author xix Table of Cases xxi The Purposes of Punishing Criminal Law Violators 28 xiii Specific and General Deterrence 28 Incapacitation 29 Rehabilitation 29 Retribution 29 Sources of Criminal Law 30 PART I CRIMINAL LAW The Common Law 30 Statutory Law 37 Ordinances 37 Introduction to the Legal System Administrative Law 38 of the United States Court Rules 42 Federalism Separation of Powers The Structure of the Court System Duties and Powers of the Judicial Branch 14 Comparing Civil Law and Criminal Law 15 Web Links 20 Key Terms 21 Review Questions 21 Problems & Critical Thinking Exercises 21 End Notes 22 Constitutional Law 43 The Model Penal Code 42 Web Links 46 Key Terms 46 Review Questions 46 Problems & Critical Thinking Exercises 47 End Notes 47 The Two Essential Elements 49 Mens Rea 50 Mens Rea and the Common Law 50 Introduction to Criminal Law 23 The Distinction between Criminal Law and Criminal Procedure 24 The Authority of Government to Regulate Behavior 25 Strict Liability 56 Vicarious Liability 60 Current Approaches to Mens Rea 62 Proving Mens Rea 64 Motive 65 vii viii CONTENTS Actus Reus 66 Voluntariness 66 Thoughts and Statements as Acts 68 Personal Status as an Act 68 Key Terms 117 Review Questions 117 Problems & Critical Thinking Exercises 118 End Notes 119 Possession as an Act 69 Omissions as Acts 70 Crimes Against Property Causation 72 Web Links 79 Key Terms 79 Review Questions 80 Problems & Critical Thinking Exercises 80 End Notes 82 and Habitation 121 Arson 122 Burglary 123 Theft Crimes 125 Introduction to Theft Crimes 125 Larceny 126 Crimes Against the Person Embezzlement 128 83 Studying Crimes 84 Homicide 85 False Pretenses 129 Receiving Stolen Property 132 Robbery 133 Homicide and the Common Law 87 Extortion 135 Statutory Approaches to Homicide 90 Consolidated Theft Statutes 136 Manslaughter 95 Identity Theft 137 The Model Penal Code Approach to Homicide 98 The Model Penal Code Consolidation 139 Life, Death, and Homicide 99 Destruction of Property 140 Suicide 100 Corpus Delicti 101 Assault and Battery 101 Aggravated Assault and Battery 102 Mayhem 103 Sex Crimes 104 Computer Crimes 141 Web Links 145 Key Terms 146 Review Questions 146 Problems & Critical Thinking Exercises 146 End Notes 147 Rape 104 Nonforcible Rape 106 Sodomy 106 Rape Shield Laws 107 Incest 107 Crimes Against the Public 149 Defining a “Crime Against the Public” 150 Crimes Against Public Morality 151 Sex Offenses Against Children 107 Prostitution and Solicitation 151 Megan’s Laws, Commitment, and Castration 109 Deviate Sexual Conduct 151 Kidnapping and False Imprisonment 110 Kidnapping 110 Parental Kidnapping 112 False Imprisonment 112 Stalking 113 Civil Rights and Hate Crimes 114 Web Links 117 Indecent Exposure and Lewdness 156 Obscenity 156 Regulating the Internet 159 Crimes Against the Public Order 163 Riot and Unlawful Assembly 164 Disturbing the Peace 164 Incitement/Advocacy of Unlawful Conduct 166 CONTENTS Threats 166 Web Links 219 Key Terms 220 Review Questions 220 Problems & Critical Thinking Exercises 220 End Notes 221 Vagrancy and Panhandling 168 Crimes Involving Firearms 168 Drug and Alcohol Crimes 171 Crimes Against the Administration of Government 175 Perjury 175 Factual and Statutory Defenses Bribery 178 Tax Crimes 179 223 “Defense” Defined 224 Affirmative Defenses 224 Insanity 225 Obstruction of Justice 181 Contempt 182 Crimes Against Sovereignty and Security 183 M’Naghten 226 Treason 183 Irresistible Impulse 227 Sedition and Espionage 184 Durham 227 Terrorism 184 The Model Penal Code Test 227 Crimes Against the Environment 200 Guilty But Mentally Ill 228 Clean Water Act 201 Procedures of the Insanity Defense 228 Clean Air Act 201 Disposition of the Criminally Insane 229 Comprehensive Environmental Response, Insanity at the Time of Trial 231 Compensation and Liability Act 202 Resource Conservation and Recovery Act 202 Duress and Necessity 232 Use-of-Force Defenses 233 Occupational Safety and Health Act 202 Self-Defense 233 Toxic Substances Control Act 202 Defense of Others 234 Federal Insecticide, Fungicide, Defense of Property and Habitation 235 and Rodenticide Act 203 Imperfect Self-Defense 236 Emergency Planning and Community Arrests 236 Right-to-Know Act 203 Endangered Species Act 203 Marine Mammal Protection Act 203 Web Links 205 Key Terms 206 Review Questions 206 Problems & Critical Thinking Exercises 206 End Notes 207 Parties and Inchoate Offenses Parties to Crimes 210 Inchoate Crimes 211 Attempt 212 Conspiracy 216 Solicitation 218 209 Infancy 243 Intoxication 244 Mistake 244 Entrapment 245 Alibi and Consent 246 Statutes of Limitation 246 Web Links 248 Key Terms 249 Review Questions 249 Problems & Critical Thinking Exercises 249 End Notes 250 Constitutional Defenses Introduction 252 Double Jeopardy 252 251 ix INDEX contracts, 16, 71 conversion, 128 Coolidge v New Hampshire, 351–352 cooling-off period, 97 Cooper v Oklahoma, 231 cooperative federalism, coram nobis, 484 Corey, Giles, 255 corporal/physical punishment, 507 corpus delicti, 101 counsel See also right to counsel effective assistance of, 478–479 indigency, 476–478 no right to, 490–491 right to self-representation, 479 scope of right, 480 County of Riverside v McLaughlin, 441, 447 court rules, 42 court system, 9–13 courts of general jurisdiction, 12 courts of limited jurisdiction, 12 courts of record, 12 CPPA (Child Pornography Prevention Act), 160–163 crime clock, 2006, 86 crime control, 287 crimes See administration of government, crimes against; environment, crimes against; names of specific crimes; person, crimes against; property and habitation, crimes against; public, crimes against; public morality, crimes against; public order, crimes against; sovereignty and security, crimes against criminal complaints, 442 criminal enterprises, 174 criminal law authority of government to regulate behavior, 25–28 compared to civil law, 15–20 compared to criminal procedure, 24–25 purposes of punishing violators, 28–30 sources of administrative law, 38–42 common law, 30–37 constitutional law, 43–46 court rules, 42 Model Penal Code, 42–43 ordinances, 37 statutory law, 37 criminal mischief, 140 criminal procedure compared to criminal law, 24–25 constitutional aspects of exclusionary rule, 308–313 expansion of rights, 308 fruit of poisonous tree doctrine, 313–314 incorporation, 306–307 “New Federalism,” 315–322 overview, 306 standing, 314–315 defined, 284 criminal records, 457 cross-examination, 472–473 culpability, 19 curtilage, 122, 360 custodial interrogation, 394–399 custody requirement, habeas corpus, 529–530 Cuyler v Sullivan, 478 CWA (Clean Water Act), 201 cyberstalking, 113 damages, 17 danger, creating, 72 Daubert v Merrell Dow Pharmaceuticals, 428 DCS1000 (Digital Collection System 1000), 421 deadly weapon doctrine, 92–95 death, determination of, 99–100 death penalty moratorium, 498 Death With Dignity Act (1997), 101 defendants confrontation and cross-examination, 472–473 counsel, 476–480 jury trial, 468–469 overview, 468 presumption of innocence/burden of proof, 473–474 public trial, 469–472 speedy trial, 474–476 defense appeals, 527 593 defense attorneys, 295–298 defense cases, 482–483 defense of others, 97–98, 234–235 defense of property and habitation, 235–236 defenses affirmative, 224–225 alibis, 246 consent, 246 constitutional bills of attainder, 258 double jeopardy, 252–254 due process, 256–257 equal protection, 256–257 ex post facto law, 258 First Amendment, 259–272 immunity, 255–256 overbreadth doctrine, 258 overview, 252 privacy, 272–277 self-incrimination, 255–256 vagueness doctrine, 258 defined, 224 duress, 232–233 entrapment, 245–246 infancy, 243 insanity disposition of criminally insane, 229–231 Durham rule, 227 guilty but mentally ill, 228 irresistible impulse, 227 M’Naghten test, 226–227 Model Penal Code test, 227–228 overview, 225–226 procedures of, 228–229 at time of trial, 231 intoxication, 244 mistake, 244–245 necessity, 232–233 statutes of limitation, 246–248 use-of-force arrests, 236–243 defense of others, 234–235 defense of property and habitation, 235–236 imperfect self-defense, 236 self-defense, 233–234 definite sentencing, 508 Delaware v Prouse, 370–371 594 INDEX deliberate homicide, 90 Department of Homeland Security (DHS), 186–187 Depo-Provera, 110 depositions, 458 derivative evidence, 313–314 destruction of property, 140–141 detainers, 462–464 detention, 446 determinate sentencing, 508 deterrence, 28 deviate sexual conduct, 151–155 Digital Collection System 1000 (DCS1000), 421 diminished capacity defense, 225 direct contempt, 182 directed verdict, 482 discovery bill of particulars, 456 Brady doctrine, 458–459 criminal record of defendant, 457 depositions, 458 documents and tangible objects, 457 freedom of information laws, 459–460 overview, 440 scientific reports and tests, 457–458 statements of defendant, 457 statements of witnesses/Jencks Act, 458 discretion law enforcement officers, 288 prosecutors, 289–294 diseases of the mind, 226–227 disposition of criminally insane, 229–231 disturbing peace, 164–166 diversion See suspended imposition of sentence DHS (Department of Homeland Security), 186–187 DNA Fingerprint Act (2005), 432 DNA testing, 431–432 documents, 457 Double Jeopardy Clause, 252–254, 525 Douglas v California, 527 drug crimes, 172–175 drug treatment programs, 523 drunk driving, 172 dual federalism, Due Process Clauses confessions, 394 determining insanity, 231 and equal protection, 256–257 fairness right, 426 models, 286–287 principle of legality, 36 duress, 232–233 Durham v United States, 227 duty, 70–72 dwellings, 122 Eighth Amendment, 445 Eisenstadt v Baird, 276 electronic surveillance Electronic Communications Privacy Act (1986), 407 overview, 405–407 pen registers and trap devices, 420–425 stored communications and subscriber records, 419–420 tracking devices, 410–419 Wiretap Act, 410 wiretaps, 408–410 elements, 64, 84 embezzlement, 125, 128–129 Emergency Planning and Community Right-to-Know Act, 203 emergency responses, 359 Endangered Species Act (ESA), 203 entrapment, 245–246 environment, crimes against Clean Air Act (CAA), 201–202 Clean Water Act (CWA), 201 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 202 Emergency Planning and Community Right-to-Know Act, 203 Endangered Species Act (ESA), 203 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 203 Marine Mammal Protection Act (MMPA), 203–205 Occupational Safety and Health Act (OSHA), 202 overview, 200–201 Resource Conservation and Recovery Act (RCRA), 202 Toxic Substances Control Act (TSCA), 202–203 equal protection, 256–257 ESA (Endangered Species Act), 203 Escobedo v Illinois, 394 espionage, 184 Estes v Texas, 469 ethics client perjury, 484–486 defense attorneys, 295–298 judges, 295 law enforcement officers, 288 lawyer competency and computers, 464–465 overview, 20 police, 387–388 prosecutors, 294 torture memo, 434–435 evidence, 358–359 ex post facto law, 258 excessive bail, 445 exclusionary rule, 308–313 executive branch, executive clemency, 506 exhaustion of remedies doctrine, 529 exigent circumstances, 347 expansion of rights, 308 exploitation, 108 extortion, 135–136 extradition, 462–464 eyewitness identification, 425 factual guilt, 286 factual impossibility, 214 fairness right, 426–428 false imprisonment, 112–113 false pretenses, 129–132 Faretta v California, 479 Federal Counterfeit Access Device and Computer Fraud and Abuse Act (1984), 142, 144 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 203 federal judicial circuits, 11 Federal Kidnapping Act, 110 federal prosecutors, 277 Federal Sentencing Guidelines, 509–510 Federal Tort Claims Act (FTCA), 301 Federal Wiretap Act, 407 federalism, 4–7 felony-murder doctrine, 87–89 INDEX fences, 132 field sobriety tests, 172 FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act), 203 Fifth Amendment, 394, 426, 447 fighting words, 165 final orders, 526 fines, 517 fingerprinting, 429 firearms, 168–171 First Amendment and assembling, 164 and religion, 259–266 and speech, 266–272 first-degree murder, 90–92 FISA (Foreign Intelligence Surveillance Act of 1978), 184 Florida v J.L., 337–339 Florida v Royer, 354 FOIA (Freedom of Information Act), 459–460 Foreign Intelligence Surveillance Act of 1978 (FISA), 184 foreseeability, 72 forfeiture, 131, 517–523 forgery, 132 formal charges grand juries, 447–451 indictment, 451–453 information, 453–455 overview, 447 Fourteenth Amendment, 306, 394, 426 Fourth Amendment analysis, 385 and automobiles, 369–370 overview, 326–327 privacy, 327–336 probable cause defined, 336 good-faith reliance on warrant, 340–341 sources used to establish, 336–340 fraudulent checks, 130 Free Exercise Clause, 259 freedom, 25 Freedom of Information Act (FOIA), 459–460 freedom of information laws, 459–460 Frisbie v Collins, 463 fruit of poisonous tree doctrine, 313–314 Frye v United States, 428 FTCA (Federal Tort Claims Act), 301 fundamental fairness, 307 Furman v Georgia, 496 GBMI (Guilty But Mentally Ill) verdict, 228, 230 general intent, 51–54 genetic fingerprinting, 431 Gideon v Wainwright, 478 Gonzales v O Centro Espirita Beneficente Uniao Do Vegetal, 262–264 good-faith reliance on warrant, 340–341 government See administration of government, crimes against Graham v Connor, 237–239 grand juries, 447–451 grand larceny, 126 Gregg v Georgia, 496 Griswold v Connecticut, 272–273 Guilty But Mentally Ill (GBMI) verdict, 228, 230 Gun Control Act (1968), 170 habeas corpus, 528–531 habitation, 235–236 See also property and habitation, crimes against habitual offender statutes, 524–525 Hale, Matthew F., 115–117 halfway houses, 524 hard labor, 507 harmless errors, 527 hate crimes, 114–117 hearings preliminary, 446–447 revocation, 516 sentencing, 491–494 hearsay, 218, 473 heat-of-passion manslaughter, 96 Henson, James, 219 hierarchical federalism, Hiibel v Sixth Judicial District, 354 Hinckley, John, 228 H.J Inc v Northwestern Bell Telephone Co., 131–132 Holbrook v Flynn, 474 Homeland Security Act, 186 595 homicide and common law, 87–90 corpus delicti, 101 determination of life and death, 99–100 manslaughter, 95–98 Model Penal Code approach to, 98–99 overview, 85–86 statutory approaches to AIDS, 95 deadly weapon doctrine, 92–95 first-degree murder, 90–92 second-degree murder, 90–92 suicide, 100–101 Horton v California, 352 hot pursuit, 359 Hudson v Michigan, 309–311 jury, 483 identity theft, 137–139 Identity Theft and Assumption Deterrence Act (1998), 139 illegal arrests, 384 Illinois v Gates, 337 Illinois v Wardlow, 353 immunity, 255–256 imperfect self-defense, 97–98, 236 impermissibly suggestive, 426 improper identifications, 433–435 in limine, 482 In Re Application for Pen Register and Trap/Trace Device with Cell Site Authority, 411–419 incapacitation, 29 incarceration, 507 incest, 107 inchoate crimes attempt, 212–216 conspiracy, 216–218 overview, 211–212 solicitation, 218–219 incitement of unlawful conduct, 166 incorporation, 306–307 indecent exposure, 156 indefinite sentencing, 508 independent content approach, 307 independent sources, 314 indeterminate sentencing, 508 indictment, 190–199, 447, 451–453 596 INDEX indigency, 476–478 indirect contempt, 182 inevitable discovery rule, 314 infamous crimes, 451 infancy, 243 inferences, 65 inferior courts, 12 informants, 336 information, 447, 453–455 initial appearance, 441–445 injunctions, 61 insanity defense disposition of criminally insane, 229–231 Durham rule, 227 guilty but mentally ill, 228 irresistible impulse, 227 M’Naghten test, 226–227 Model Penal Code test, 227–228 overview, 225–226 procedures of, 228–229 at time of trial, 231 intent constructive, 51–54 to serious bodily harm, 92–95 general, 51–54 specific, 51–54 transferred, 56 intentional torts, 17 interlocutory appeals, 526 Internet, regulating, 159–163 interpret, 14 interrogation defined, 394 Miranda custodial interrogation, 395–399 exceptions to, 399–400 multiple interrogations and reinterrogation, 400–402 overview, 394 violating, 403–405 waiver, 403 warnings, 402–403 Sixth Amendment, 405 voluntariness requirement, 405 Interstate Agreement on Detainers, 463 intervening causes, 73 intoxication, 244 inventory searches, 371–372 investigation, 440 investigatory interrogation, 394 involuntary intoxication, 244 involuntary manslaughter, 98 irrebuttable presumptions, 65 irresistible impulse, 227 Jake’s Law, 464 Janet A Carson, Appellant v.United States, Appellee, 53–54 Jencks Act, 458 JNOV (judgment notwithstanding the verdict), 484–486 Johnson v Zerbst, 476–477 judges ethics, 295 and public opinion, 321–322 judgment notwithstanding the verdict (JNOV), 484–486 judgment of acquittal, 482 judicial branch, 8, 14–15 judicial opinions, 33 judicial reviews, 14 jurisdiction, jury deliberations, 483–484 jury selection, 480 jury trials, 468–469 juvenile justice system, 243 Kanka, Megan, 109 Katz v United States, 327–328 Keeler v Superior Court, 34 Ker v California, 383 Kevorkian, Jack, 100–101 key logger systems (KLS), 421 kidnapping, 110–112 King v Cogdon, 67 Kirby v Illinois, 426 Kirchmeier, Jeffrey, 498 KLS (key logger systems), 421 “knowing endangerment” provision, 201 knowingly acting, 62 Kyllo v United States, 329–330 Labelle v State, 94–95 larceny, 125–127 larceny by trick, 130 law enforcement officers arrests by, 237–242 discretion, 288 ethics, 288 overview, 287–288 Lawrence v Texas, 152–155 lawyers, ethics, 464–465 legal assistants, 298 legal cause, 72 legal guilt, 286 legal impossibility, 213 legal system comparing civil law and criminal law, 15–20 duties and powers of judicial branch, 14–15 federalism, 4–7 separation of powers, 7–9 structure of court system, 9–13 legality, principle of, 32–36 legislative branch, legislative contempt, 183 legislative history, 59 legislative prerogative canon, 59 lewdness, 156 liability of governments and officials, 300–302 strict, 56–60 vicarious, 60–62 licensing of firearms, 171 life, determination of, 99–100 Lilburne, John, 255 lineups, 426 Locket v Ohio, 496 Logan Act, 184 Louisiana civil law, 284–285 Love Canal, 200 Magic Lantern program, 425 Magna Carta, 468 mail fraud, 130 malice, 122 malicious mischief, 140 malpractice, 145 malum in se, 55–56 malum prohibitum, 55–56 manifest necessity, 252 INDEX manslaughter imperfect self-defense and defense of others, 97–98 involuntary, 98 misdemeanor, 90 overview, 95–96 provocation, 96–97 Mapp v Ohio, 312 Mapplethorpe, Robert, 157 Marbury v Madison, 15 Marine Mammal Protection Act (MMPA), 203–205 marital rape exception, 104 Marshall, Thurgood, 497 Maryland v Buie, 357, 382–383 mass murderers, 55 materiality, 176 mayhem, 103 McCleskey v Kemp, 499 McDade, Joseph, 277 McNabb-Mallory rule, 394 Megan’s Laws, 109–110 Mempa v Rhay, 516 mens rea and common law constructive intent, 51–54 general intent, 51–54 malum in se, 55–56 malum prohibitum, 55–56 overview, 50 specific intent, 51–54 transferred intent, 56 current approaches to, 62–64 motive, 65–66 proving, 64–65 strict liability, 56–60 vicarious liability, 60–62 mental illness, 228 merger of offenses, 84 Michigan State Police v Sitz, 363 Michigan v Jackson, 405 Miller v California, 157 Minnesota Public Utilities Commission (MPUC), 131–132 Minnesota v Carter, 330–332 Minnesota v Dickerson, 355–357 Minnick v Mississippi, 401–402 minors, 243 Miranda custodial interrogation, 395–399 exceptions to, 399–400 multiple interrogations and reinterrogation, 400–402 overview, 394 violating, 403–405 waiver, 403 warnings, 402–403 Miranda v Arizona, 395–399 misdemeanor arrests, 379–381 misdemeanor manslaughter, 90 Missouri v Seibert, 402 mistakes, 244–245 mistrials, 252 mitigating circumstances, 508 MMPA (Marine Mammal Protection Act), 203–205 M’Naghten test, 226–227 Model Code of Judicial Conduct, 219 Model Code of Professional Responsibility, 294 Model Penal Code approach to homicide, 98–99 consolidation of theft offenses, 139–140 corporate liability, 61 insanity defense, 227–228 overview, 42–43 and states of mind, 62–64 modernization, 200 molestation, child, 107–108 morality See public morality, crimes against Morissette v United States, 58 motion practice motion for change of venue, 461 motion for continuance, 462 motion for severance, 461 motion in limine, 461–462 motion to dismiss/quash, 460 motion to suppress, 460–461 motive, 65–66 motor vehicles occupants, 368–371 overview, 363 searches, 368 stops, 363–368 MPUC (Minnesota Public Utilities Commission), 131–132 mug shots, 426, 440 murder See homicide mutuality, 96 597 NALA (National Association of Legal Assistants), 298 narrow construction canon, 59 National Association of Legal Assistants (NALA), 298 National Crime Information Center (NCIC), 145 National Crime Victimization Survey (NCVS), 85 National Firearms Act, 170 National Incident-Based Reporting System (NIBRS), 85 National Instant Background Check System (NICS), 170 national jurisdiction, NCIC (National Crime Information Center), 145 NCVS (National Crime Victimization Survey), 85 necessity, 232–233 negligence, 63 negligent homicide, 98 negligent torts, 17 “New Federalism,” 315–322 NIBRS (National Incident-Based Reporting System), 85 NICS (National Instant Background Check System), 170 Nifong, Mike, 205 no right to counsel, 490–491 no-knock warrants, 347 nolle prosequi, 289 nolo contendere, 455 nonforcible rape, 106 North Carolina v Butler, 403 notice, 33 nucleotide bases, 431 nulla poena sine lege, 33 nullum crimen sine lege, 33 objections, 482 objective intent, 64 obscenity, 156–159 obstruction of justice, 181–182 Occupational Safety and Health Act (OSHA), 202 omissions, 70–72 Omnibus Crime Control Act and Safe Streets Act (1968), 406 598 INDEX one-man showups, 426 open fields doctrine, 359–360 opening statements, 482 order See public order, crimes against ordinances, 37 Osborne v Ohio, 158 OSHA (Occupational Safety and Health Act), 202 others, defense of, 97–98, 234–235 overbreadth doctrine, 258 overzealous representation, 78–79 panhandling, 168 Papachristou v City of Jacksonville, 167 pardons, 506 parental kidnapping, 112 Parental Kidnapping Prevention Act (1980), 112 parole, 509 parolees, 372–373 participants defense attorneys, 295–298 judges, 295 law enforcement officers, 287–288 liability of, 300–302 prosecutors, 289–294 victims, 298–300 parties to crimes, 210–211 Patriot Act, 186, 407 pattern, 131 Payne v Tennessee, 492–494 Payton v New York, 378–379 peace, disturbing, 164–166 pen registers, 420–425 People v Alicia Troiano, 60 People v Belge, 296–297 People v Dioguardi, 135–136 People v Murray, 214 People v Warner-Lambert Co., 74–75 peremptory challenges, 480 perjury, 175–177, 484–486 perjury traps, 245 person, crimes against assault and battery, 101–103 civil rights crimes, 114–117 false imprisonment, 112–113 hate crimes, 114–117 homicide and common law, 87–90 corpus delicti, 101 determination of life and death, 99–100 manslaughter, 95–98 Model Penal Code approach to, 98–99 overview, 85–86 statutory approaches to, 90–95 suicide, 100–101 kidnapping, 110–112 mayhem, 103 sex crimes castration, 109–110 against children, 107–109 commitment, 109–110 incest, 107 Megan’s Laws, 109–110 rape, 104–107 sodomy, 106–107 stalking, 113–114 studying, 84 personal recognizance, 445 personal status, 68–69 photographs, 428 pimps, 151 plain feel doctrine, 355–357 plain meaning canon, 59 plain view doctrine, 350–352 plea agreements, 455 plea bargaining, 453 police ethics, 387–388 police power, polling the jury, 484 polygraph tests, 432–433 possession as actus reus, 69–70 of drug paraphernalia, 175 precedents, 31 preliminary hearings, 446–447 premeditated homicide, 90 presentence investigation, 490–491 preservation requirements, 527 presumption of innocence, 473–474 presumptions, 65 presumptive sentencing, 508 pretrial conferences, 462 pretrial process arraignment, 455 arrests, 440–441 complaints, 441 detention, 446 discovery bill of particulars, 456 Brady doctrine, 458–459 criminal record of defendant, 457 depositions, 458 documents and tangible objects, 457 freedom of information laws, 459–460 and investigation, 440 scientific reports and tests, 457–458 statements of defendant, 457 statements of witnesses/Jencks Act, 458 extradition and detainers, 462–464 fairness right, 426–428 formal charges grand juries, 447–451 indictment, 451–453 information, 453–455 overview, 447 improper identifications, 433–435 initial appearance, 441–445 lineups and one-man showups, 426 motion practice, 460–462 overview, 425–426, 439–440 preliminary hearings, 446–447 pretrial conferences, 462 release, 445 removal, 464–465 right to counsel, 426 scientific identification blood testing, 429–431 chain of custody, 433 DNA testing, 431–432 fingerprinting, 429 overview, 428 polygraph tests, 432–433 validity and reliability, 428–429 voice testing, 432 primary evidence, 313 principals, 210–211 principle of legality, 257 prisoners, 213–214, 372 prisons, 512 privacy, 272–277, 327–336 INDEX Privacy Act, 460 private retribution, 30 probable cause defined, 336 good-faith reliance on warrant, 340–341 sources used to establish, 336–340 probable desistance test, 213 probation, 513–516 probationers, 372–373 profiles, 361–363 property and habitation, crimes against arson, 122–123 burglary, 123–125 defense of, 235–236 theft crimes computer crimes, 141–145 consolidated theft statutes, 136–137 destruction of property, 140–141 embezzlement, 128–129 extortion, 135–136 false pretenses, 129–132 identity theft, 137–139 larceny, 126–127 Model Penal Code consolidation of, 139–140 overview, 125–126 receiving stolen property, 132–133 robbery, 133–134 property bonds, 445 prosecution appeals, 527 prosecution’s case in chief, 482 prosecutors discretion, 289–294 ethics, 204–205, 294 prostitution, 151 protective sweeps, 357, 381–383 provocation, 96–97 proximate cause, 72 proximity test, 212 psychiatrists, 229 public, crimes against administration of government bribery, 178–179 contempt, 182–183 obstruction of justice, 181–182 perjury, 175–177 tax crimes, 179–181 defining, 150–151 environment Clean Air Act (CAA), 201–202 Clean Water Act (CWA), 201 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 202 Emergency Planning and Community Right-to-Know Act, 203 Endangered Species Act (ESA), 203 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 203 Marine Mammal Protection Act (MMPA), 203–205 Occupational Safety and Health Act (OSHA), 202 overview, 200–201 Resource Conservation and Recovery Act (RCRA), 202 Toxic Substances Control Act (TSCA), 202–203 public morality deviate sexual conduct, 151–155 indecent exposure, 156 lewdness, 156 obscenity, 156–159 prostitution, 151 regulating Internet, 159–163 solicitation, 151 public order disturbing peace, 164–166 drug and alcohol crimes, 171–175 incitement/advocacy of unlawful conduct, 166 involving firearms, 168–171 overview, 163–164 riot and unlawful assembly, 164 threats, 166–167 vagrancy and panhandling, 168 sovereignty and security espionage, 184 sedition, 184 terrorism, 184–199 treason, 183–184 public defenders, 295 public morality, crimes against deviate sexual conduct, 151–155 indecent exposure, 156 lewdness, 156 obscenity, 156–159 599 prostitution, 151 regulating Internet, 159–163 solicitation, 151 public offenses, 57 public order, crimes against alcohol crimes, 171–172 disturbing peace, 164–166 drug crimes overview, 172–174 possession of drug paraphernalia, 175 RICO and CCE, 174–175 incitement/advocacy of unlawful conduct, 166 involving firearms, 168–171 overview, 163–164 panhandling, 168 riot, 164 threats, 166–167 unlawful assembly, 164 vagrancy, 168 public retribution, 29–30 public trials, 469–472 punishment, purpose of, 28–30 punitive damages, 17 purposely acting, 62 qualified immunity, 300–301 quash, 451, 460 quasi-judicial acts, 301 racial profiling, 362–363 racism, 115–117 Racketeer Influenced and Corrupt Organizations Act (RICO), 130–132, 174–175 rap sheets, 491 rape, 104–107 rape shield laws, 299 R.A.V v City of St Paul, 269–270 RCRA (Resource Conservation and Recovery Act), 202 rebuttable presumptions, 65 rebuttals, 483 receiving stolen property, 132–133 recidivism, 104–105 recklessness, 63 records on appeal, 10 600 INDEX registration of firearms, 171 regulations, 38 regulatory offenses, 57 rehabilitation, 29 reinterrogation, 400–402 relationship, duty by, 70–71 release, types of, 445 religion, 259–266 Religious Freedom Restoration Act, 262 remands, 10 removal, 464–465 reprieves, 507 res ipsa loquitur test, 212 resisting unlawful arrests, 236–237 Resource Conservation and Recovery Act (RCRA), 202 restitution, 516–517 retreat to the wall doctrine, 234 retribution, 29–30 reviewing courts, 340–341 revocation hearings, 516 Rhode Island v Innis, 399 Richards v Wisconsin, 347–349 Richardson v United States, 134 RICO (Racketeer Influenced and Corrupt Organizations Act), 130–132, 174–175 right to counsel appeals, 527 chart, 481 habeas corpus, 530–531 lineups and one-man showups, 426 and Seventh Circuit Court of Appeals, 490–491 right to self-representation, 479 riots, 164 roadblocks occupants, 368–371 overview, 363 searches, 368 stops, 363–368 robbery, 125, 133–134 Robinson v California, 68–69 Roe v Wade, 273–274 Rogers v Tennessee, 76–77 Roth v United States, 157 same evidence test, 253 Samson v California, 373 Schmerber v California, 429–430 scienter, 51 scientific identification blood testing, 429–431 chain of custody, 433 DNA testing, 431–432 fingerprinting, 429 overview, 428 polygraph tests, 432–433 validity and reliability, 428–429 voice testing, 432 scientific reports and tests, 457–458 scope of review appeals, 526–527 habeas corpus, 528–529 scope of right, 480 Scott v Harris, 239–242 search incident to arrest, 357, 381–383 search warrants application and affidavit for, 343 exceptions to administrative searches, 373 border searches and profiles, 361–363 consent searches, 347–350 emergency responses and hot pursuit, 359 inventory searches, 371–372 motor vehicles and roadblocks, 363–371 open fields doctrine, 359–360 overview, 347 plain feel doctrine, 355–357 plain view doctrine, 350–352 preservation of evidence, 358–359 prisoners, 372 probationers and parolees, 372–373 search incident to arrest, 357 stop and frisk, 352–355 upon oral testimony, 344–345 searches See border searches; consent searches searches and seizures exceptions to search warrants administrative searches, 373 border searches and profiles, 361–363 consent searches, 347–350 emergency responses and hot pursuit, 359 inventory searches, 371–372 motor vehicles and roadblocks, 363–371 open fields, 359–360 overview, 347 plain feel, 355–357 plain view, 350–352 preservation of evidence, 358–359 prisoners, 372 probationers and parolees, 372–373 search incident to arrest, 357 stop and frisk, 352–355 Fourth Amendment overview, 326–327 privacy, 327–336 probable cause, 336–341 overview, 325–326, 341 warrants executing, 346–347 overview, 341–342 requirements for obtaining, 342–345 scope of, 346 second-degree murder, 90–92 security See sovereignty and security, crimes against sedition, 184 seduction, 109 seizures, 327 See also searches and seizures selective incorporation doctrine, 307 self-defense imperfect, 97–98, 236 overview, 233–234 self-incrimination, 255–256, 428 sentencing alternatives, 523–524 capital punishment, 496–507 community service, 516 concurrent and consecutive, 509 corporal/physical punishment, 507 definite and indefinite, 508 Federal Guidelines, 509–513 fines, 517 forfeiture, 517–523 habitual offender statutes, 524–525 hearings, 491–494 incarceration, 507 indeterminate and determinate, 508 overview, 490 parole, 509 INDEX presentence investigation/no right to counsel, 490–491 presumptive, 508 probation and revocation, 513–516 proving facts for, 495–496 punishing acquitted crimes, 494–495 restitution, 516–517 suspended imposition of sentence, 508–509 separation of powers, 7–9 serial killers, 55 Seventh Circuit Court of Appeals, 490–491 sex crimes castration, 109–110 against children, 107–109 commitment, 109–110 incest, 107 Megan’s Laws, 109–110 rape, 104–107 sodomy, 106–107 shock treatment, 524 sidebars, 4, 482 Simmons v United States, 314 sine qua non test, 72 SIS (suspended imposition of sentence), 508–509 Sixth Amendment defense attorneys, 295 interrogation, 405 jury trials, 468 Seventh Circuit Court of Appeals, 490–491 sodomy, 106–107 solicitation, 109, 151, 218–219 solitary confinement, 507 sources of criminal law administrative law, 38–42 common law, 30–37 constitutional law, 43–46 court rules, 42 Model Penal Code, 42–43 ordinances, 37 statutory law, 37 sovereign immunity, 301 sovereignty and security, crimes against espionage, 184 sedition, 184 terrorism, 184–199 treason, 183–184 Spain, Raleigh George, 247–248 specific intent, 51–54 speech, 266–272 speedy trials, 474–476 split sentences, 510 spoofing, 113 stalking, 113–114 standby counsel, 479 standing, 314–315 Stansbury v California, 396 stare decisis, 31 Starr, Kenneth, 176 state constitutions, 315–322 state jurisdiction, State of Illinois v Gerry Lockett, 124 State v Baldwin, 138 State v David Fierro, 100 State v Farris, 404–405 State v Haines, 215–216 State v Hodges, 264–266 State v Losey, 89 State v Snowden, 91 statements, 68 statements of defendant, 457 statements of witnesses, 458 states of mind, 62–64 statutes approaches to homicide AIDS, 95 deadly weapon doctrine, 92–95 first-degree murder, 90–92 second-degree murder, 90–92 defined, duty imposed by, 70 of limitation, 246–248 statutory construction, 58–60 statutory law, 37 statutory rape, 106 stolen property, receiving, 132–133 stop and frisk, 352–355 stored communications, 419–420 Stoval v Denno, 426 strict liability, 56–60 strict liability torts, 17 subjective intent, 64 subornation of perjury, 176 subpoenas, 448–449 subscriber records, 419–420 substantial capacity test, 227–228 substantial step to completion test, 213 601 suicide, 100–101 summons, 443–444 Superfund, 202 super-warrants, 408 Supremacy Clause, surety bonds, 445 suspended imposition of sentence (SIS), 508–509 suspended sentences, 513 tangible objects, 457 tax crimes, 179–181 Tennessee v Garner, 237 Tenth Amendment, terrorism, 184–199 Terry v Ohio, 352 Texas v Gregory Lee Johnson, 266–268 theft crimes computer crimes, 141–145 consolidated theft statutes, 136–137 destruction of property, 140–141 embezzlement, 128–129 extortion, 135–136 false pretenses, 129–132 identity theft, 137–139 larceny, 126–127 Model Penal Code consolidation of, 139–140 overview, 125–126 receiving stolen property, 132–133 robbery, 133–134 Thomas v Commonwealth of Kentucky, 167 threats, 166–167, 232 “three strikes and you are out” laws, 524 Title III, Omnibus Crime Control Act and Safe Streets Act (1968), 406 titles, 130 tolling, 246 tortfeasor, 17 torts, 17 torture memo, 434–435 total incorporation, 273, 307 total incorporation plus, 307 Touby v United States, 40–41 Toxic Substances Control Act (TSCA), 202–203 tracking devices, 410–419 602 INDEX transactional immunity, 255 transferred intent, 56 trap devices, 420–425 treason, 183–184 trial closing arguments, 483 defense case, 482–483 final instructions, 483 JNOV, 484–486 jury deliberations and verdict, 483–484 mistrials, 252 opening statements, 482 overview, 467 preliminary instructions, 481 prosecution’s case in chief, 482 rebuttal, 483 rights of defendants confrontation and crossexamination, 472–473 counsel, 476–480 jury trial, 468–469 overview, 468 presumption of innocence/burden of proof, 473–474 public trial, 469–472 speedy trial, 474–476 voir dire, 480–481 trial courts, TSCA (Toxic Substances Control Act), 202–203 Twinkie defense, 226 undercover officers, 400 unequivocality test, 212 Uniform Controlled Substance Act, 172 Uniform Crime Reporting Program, 126 Uniform Interstate Criminal Extradition Act, 462 Union Carbide, 200 United States, legal system of comparing civil law and criminal law, 15–20 duties and powers of judicial branch, 14–15 federalism, 4–7 separation of powers, 7–9 structure of court system, 9–13 United States v Armstrong, 290–294 United States v Bajakajian, 520–523 United States v Booker, 511–512 United States v Brignoni-Ponce, 361–362 United States v Calley, 232–233 United States v Consuelo-Gonzalez, 514–515 United States v DeLuca, 469–472 United States v Gordon, 333–336 United States v Grimaud, 39–40 United States v Jackson, 469 United States v James Daniel Good Real Property, 517–518 United States v Knights, 372–373 United States v Leon, 317–318, 340–341 United States v Ludwig, 339–340 United States v Miller, 169 United States v Patane, 403–404 United States v Robinson, 357 United States v Scarfo, 421–425 United States v Scheffer, 432–433 United States v Sun Myung Moon, 181 United States v Toscanino, 386–387 United States v Wade, 426–427 United States v Watson, 376 United States v Watts, 494–495 unlawful arrests, resisting, 236–237 unlawful assembly, 164 unlawful disclosure, 180 use immunity, 255 use-of-force defenses arrests by citizens, 242–243 by law enforcement officers, 237–242 resisting unlawful arrests, 236–237 defense of others, 234–235 defense of property and habitation, 235–236 imperfect self-defense, 236 self-defense, 233–234 uttering, 132 vagrancy, 168 vagueness doctrine, 258 vehicular homicide, 98 verdict, 483–484 vicarious liability, 60–62 vicarious sexual gratification, 108–109 victim assistance organizations, 299 victim compensation programs, 300 victim impact statements, 299, 492 “victimless crimes,” 150 victims, 298–300 Victims’ Bill of Rights, 299 violators, punishing, 29–30 Virginia v Black, 272 Virginia v Moore, 319–320 voice testing, 432 voir dire, 480–481 voluntariness, 66–68, 405 waiver, Miranda, 403 waiver of indictment, 452 warrants See also search warrants for arrest, 377–378 arrest, 383–384 executing, 346–347 overview, 341–342 requirements for obtaining, 342–345 scope of, 346 super-warrants, 408 wiretap, 409–410 weapons of mass destruction, 189 Wharton’s Rule, 217 whipping, 507 Whren v United States, 368 willful homicide, 90 Williams v Illinois, 517 Winston v Lee, 431 Wiretap Act, 407, 410 wiretaps, 406–410 Wisconsin v Mitchell, 270–272 withdrawal, 217 “Year-and-a-Day Rule” concurrence, 78–79 overview, 75–77 Yoo, 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Preface to the Fifth Edition Like its four previous editions, Criminal Law and Procedure, 5th Edition, is a comprehensive text covering both substantive criminal law and criminal procedure The... the Law Office • Constitutional Law • Contract Law • Court Reporting Criminal Law and Procedure • Document Preparation • Elder Law • Employment Law • Environmental Law • Ethics Evidence Law •... www.delmar.cengage.com Criminal Law and Procedure Fifth Edition DANIEL E HALL, J.D., Ed.D Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States Criminal Law and Procedure,