purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result. To act knowingly means to do so voluntarily and deliberately and not owing to mistake or some other innocent reason. An act is reckless when a person knows of an unjustifiable risk and consciously dis- regards it. An omission, or failure to act, may consti- tute a criminal act if there is a duty to act. For example, a parent has a duty to protect his or her child from harm. A parent’s failure to take reasonable steps to protect a child could result in criminal charges if the omission were considered to be at least reckless. Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal. Howev- er, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges. NEGLI- GENCE gives rise to criminal charges only if the defendant took a very unreasonable risk by acting or failing to act. Intent Criminal intent must be formed before the act, and it must unite w ith the act. It need not exist for any given length of time before the act; the intent and the act can be as instantaneous as simultaneous or successive thoughts. A jury may be permitted to infer criminal intent from facts that would lead a REASONABLE PERSON to believe that it existed. For example, the intent to commit BURGLARY may be inferred from the accused’s possession of tools for picking locks. Criminal intent may also be presumed from the commission of the act. That is, the prosecution may rely on the presump tion that a person intends the NATURAL AND PROBABLE CONSEQUENCES of his or her voluntary acts. For example, the intent to commit murder may be demonstrated by the particular voluntary move- ment that caused the death, such as the pointing and shooting of a firearm. A defendant may rebut this presumption by introducing evidence showing a lack of criminal intent. In the preceding example, if the murder defendant reasonably believe d that the firearm was actually a toy, evidence showing that belief might rebut the presumption that death was intended. Proof of general criminal intent is required for the conviction of most crimes. The intent element is usually fulfilled if the defendant was generally aware that he or she was very likely committing a crime, which means that the prosecution need not prove that the defendant was aware of all of the elements constituting the crime. For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that the defendant knew the precise quantity. Other examples of general-intent crimes are BATTERY, RAPE, KIDNAPPING, and FALSE IMPRISON- MENT . Some crimes require a SPECIFIC INTENT. Where specific intent is an element of a crime, it must be proved by the prosecution as an independent fact. For example, ROBBERY is the taking of property from another’spresenceby force or threat of force. The intent element is fulfilled only by evidence showing that the defendant specifically intended to steal the property . Unlike GENERAL INTENT,specificintent may not be inferred from the commission of the unlawful act. Examples of specific-in tent crimes are solicitation, attempt, conspiracy, first-degree premeditated murder, ASSAULT, LARCENY, robbery, burglary, FORGERY,false pretense, and embezzlement. Most criminal laws require that the specified crime be committed with knowledge of the act’s criminality and with criminal intent. However, some statutes make an act criminal regardless of intent. When a statute is silent as to intent, knowledge of criminality and criminal intent need not be proved. Such statutes are called STRICT LIABILITY laws. Examples are laws forbid- ding the sale of alcohol to minors and STATUTORY RAPE laws. The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and ARSON. Felony-murder statutes evince a special brand of transferred intent. Under a felony- murder statute, any death caused in the commission of, or in an attempt to commit, a predicate felony is murder. It is not necessary to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 288 CRIMINAL LAW prove that the defendant intended to kill the victim. For example, a death resulting from arson will give rise to a murder charge even though the defendant intentionally set the structure on fire without intending to kill a human being. Furthermore, the underlying crime need not have been the direct cause of the death. In the arson example, the victim need not die of burns; a fatal heart attack will trigger a charge of felony murder. In most jurisdic- tions, a death resulting from the perpetration of certain felonies will constitute first-degree murder. Such felonies usually include arson, robbery, burglary, rape, and kidnapping. Malice Malice is a state of mind that compels a person to deliberately cause unjustifiable injury to another person. At COMMON LAW, murder was the unlawful killing of one human being by another with MALICE AFORETHOUGHT,or a predetermination to kill without legal justifi- cation or excuse. Most jurisdictions have omitted malice from statutes, in favor of less- nebulous terms to describe intent, such as purpose and knowing. Massachusetts, for example, has retained malice as an element in criminal prosecutions. Under the General Laws of the Commonwealth of Massachusetts, Chapter 265, Section 1, malice is an essential element of first- and second- degree murder. According to the Supreme Judicial Court of Massachusetts, malice is a mental state that “includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow” (Common- wealth v. Huot, 403 N.E.2d 411 [1980]). Motive Motive is the cause or reason that induces a person to form the intent to commit a crime. It is not the same as intent. Rather, it explains why the person acted to violate the law. For example, knowledge that one will receive insurance funds upon the death of another may be a motive for murder, and sudden financial difficulty may be motive for embezzlement or burglary. Proof of a motive is not required for the conviction of a crime. The existence of a motive is immaterial to the ma tter of guilt when that guilt is clearly established. However, when guilt is not clearly established, the presence of a motive might help to establish it. If a prosecution is based entirely on CIRCUMSTANTIAL EVIDENCE , the presence of a motive might be persuasive in establishing guilt; likewise, the absence of a motive might support a finding of innocence. Attempt An attempt to commit a crime is conduct intended to lead to the commission of the crime. It is more than mere preparation, but it falls short of actual commission of the intended offense. An intent to commit a crime is not the same as an attempt to commit a crime. Intent is a mental quality that imp lies a purpose, whereas attempt implies an effort to carry that purpose or intent into execution. An attempt goes beyond preliminary planning and involves a move toward commission of the crime. As a general rule, an attempt to commit a crime is a misdemeanor, whether the crime itself is a felony or a misdemeanor. However, in a case of violent crime, an attempt may be classified as a felony. Attempted murder and attempted rape are examples of felonious attempts. In an attempt case, the prosecution must prove that the defendant specifically intended to commit the attemp ted crime that has been charged. General intent will not suffice. For example, in an attempted-murder case, evidence must show a specific intent to kill, independent from the actual act, such as a note or words conveying the intent. In a murder case, intent may be inferred from the killing itself. Conspiracy When two or more persons act together to break the law, conspiracy is an additional charge to the intended crime. For example, if two persons conspire to commit robbery, and they commit the robbery, both face two charges: conspiracy to commit robbery and robbery. Defenses Defenses Negating Criminal C apacity To be held responsible for a crime, a person must understand the nature and consequences of his or her unlawful co nduct. Under certain circum- stances, a person who commits a crime lacks the legal capacity to be held responsible for the act. Examples of legal incapacity are infancy, incompetence, and intoxication. Children are not criminally responsible for their actions until they are old enough to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 289 understand the difference between right and wrong and the nature of their actions. Children under the age of seven are conclusively presumed to lack the capacity to commit a crime. Between the ages of 7 and 14, children are presumed to be incapable of committing a crime. However, this presumption is not conclusive; it can be rebutted by the prosecution through the admission of evidence that the child knew that what he or she was doing was wrong. Anyone over the age of 14 is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity. All states have juvenile courts, which are separate from criminal courts. Juveniles who are accused of a crime are tried in these courts as delinquent children, rather than as criminal defendants. This alternative prevents children from invoking the defense of infancy. In juvenile courts, criminal charges lead to an adjudication rather than prosecution, because the aim of juvenile courts is to rehabilitate, rather than to punish. In the 1990s some state legislatures passed laws to make it easie r to prosecute juveniles in adult courts, especially in cases involving violent crimes. Insane persons cannot, in a legal sense, form the intent necessary to commit a crime. They are not, therefore, criminally responsible for their actions. Courts have applied a variety of Should More Crimes Be Made Federal Offenses? E nforcement of criminal laws in the United States has traditionally been a matter handled by the states. The federal government, conversely, has typi- cally limited itself to policing only crimes against the federal government and interstate crime. This is just one expres- sion of the U.S. system of federalism, the notion that the federal government exists in tandem with the states and does not, without necessity, deprive states of their powers. The TENTH AMENDMENT to the U.S. Constitution is an example of federalism at work. That amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Near the end of the twentieth century, however, Congress passed a host of federal laws that directly overlap with existing state criminal laws. Such laws include the Anti-Car THEFT Act of 1992, the CHILD SUPPORT Recovery Act of 1992, the Animal Enterprise Protection Act of 1992, and new criminal laws on ARSON, narcotics and dangerous drugs, guns, MONEY LAUNDERING and reporting, DOMES- TIC VIOLENCE , environmental transgres- sions, career criminals, and repeat offenders. As a result, in 1998 the number of criminal prosecutions in federal courts increased by 15 percent. The increase was nearly three times the increase in federal criminal prosecutions in 1997. In a Report of the Federal Judiciary issued at the end of 1998, U.S. Supreme Court Chief Justice WILLIAM H. REHNQUIST criticized the congressional movement toward federalizing the criminal justice system. “Federal courts were not created to adjudicate local crimes,” Rehnquist instructed, “no matter how sensational or heinous the crimes may be.” Rehnquist noted the tremendous toll that federalization of crime was exacting on the federal judiciary, and he decried the damage it was doing to the concept of federalism: “The trend to federalize crimes that traditionally have been han- dled in state courts not only is taxing the judiciary’s resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system.” According to Rehnquist, the problem was political in nature; senators and representatives in Congress were using the act of lawmaking to win or keep their seats: “The pressure in Congress to appear responsive to every highly publicized societal ill or sensation- al crime needs to be balanced with an inquiry into whether states are doing an adequate job in this particular area and, ultimately, whether we want most of our legal relationships decided at the national rather than local level.” In his 1998 report, Rehnquist cited a report on federal courts issued by the 1995 JUDICIAL CONFERENCE OF THE UNITED STATES . The Judicial Conference recom- mended that federal courts be used for only five types of cases: 1) offenses against the government or its inherent interests; 2) criminal activity with sub- stantial multi-state or international aspects; 3) criminal activity involving complex commercial or institutional enterprises most effectively prosecuted under federal resources or expertise; 4) serious high level or widespread state or local government corruption; and 5) criminal cases raising highly sensitive local issues. “Although Congress need not follow the recommendations of the Judicial Conference,” Rehnquist wrote, “this Long-Range Plan is based not simply on the preference of federal judges, but on the traditional principle GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 290 CRIMINAL LAW legal tests to determine the mental state of a criminal defendant who claims that he or she was insane at the time of the alleged crime. One test is the M’Naghten rule, which was originally used by an English court in the criminal prosecution of Daniel M’Naghten. M’Naghten had an insane delusion that the prime minister of England, Sir Robert Peel, was trying to kill him. Mistaking the prime minister’s secretary, Edward Drummond, for the prime minister, M’Naghten killed the secretary. At his trial, M’Naghten asserted that he had been insane when he committed the crime. The jury accepted his argument and acquitted him. From that decision evolved the M’Naghten test, under which, in order to disclaim criminal responsibility, a defendant must be affected by a disease of the mind at the time he or she commits the act. The disease must cause the ability to reason to become so defective that the person does not know the nature and quality of the act or else does not know that the act is wrong. A successful invocation of the M’Naghten defense results in commitment to a mental institution for treat- ment rather than imprisonment. The U.S. Supreme Court was presented with an opportunity to clarify this area of the law in of federalism that has guided the country throughout its existence.” Concern over the federalization trend spread during the late 1990s. The Crimi- nal Justice Section of the AMERICAN BAR ASSOCIATION (ABA) organized a task force—the Task Force on the Federaliza- tion of Criminal Law—to look into the matter. In 1998, the task force issued a report in which it criticized the trend. Victor S. (Torry) Johnson, a representa- tive of the National District Attorneys Association (NDAA) on the task force, declared in Prosecutor, “By trying to fight street crime through federal legislation, Congress misleads the public into believ- ing that a national response will be effective and that the problem will be solved with federal intervention.” Con- gress then fails to provide enough federal funding to prosecute all the new laws, creating a situation in which the efforts of local law enforcement “are undermined by the unrealistic expectations created by Congress’ well-publicized enactments.” In his 1999 article for Corrections Today, James A. Gondles Jr., executive director of the American Correctional Association, lamented the introduction of low-level, local criminals into the federal system. According to Gondles, mixing such prisoners with big-time federal criminals blurs the jurisdictional line and makes it “more difficult for those at the state and local levels to do their jobs.” Not everyone is troubled by the federalization of criminal law enforce- ment. Proponents of federal criminal laws argue that they are necessary in an increasingly mobile society. Crime tends to span more than one state and even local crime can have effects which cross state boundaries. In his article for the Hastings Law Journal, Rory K. Little, a professor of law at the University of California, Hastings College of Law, defended the increase in federal crimes as a protection against the inability of states to catch and prosecute all crim- inals. If the quality of justice is better in the federal courts, Little opines, “then problems of crime cannot be ignored federally while state criminal justice systems slowly sink and justice fails.” AU.S.SupremeCourtdecisionin March 1999 constituted an approval of increased federal authority over crim e. In United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 12 39, 143 L. Ed.2d 388 (1999), Jacinto Rodriguez- Moreno kidnapped a drug associate and took him from Texas to New Jersey, then to New York, and finally to Mary- land. Rodriguez-Moreno was charged with, among other crimes, KIDNAPPING and using and carrying a firearm in relation to a kidnapping, an act that violated 18 U.S.C.A. § 924 (c) (1). Sec- tion 924(c)(1) makes it a crime to use or carry a firearm during, and in relation to, any crime of violence. Rodriguez -Moreno was tried in New Jersey on the charges, even though he did not have a gun in New Jersey. Rodriguez-Moreno, who did not want to be tried in New Jersey, argued that the statute did not allow the federal government to prosecute him for the § 924 crime in New Jersey because he did not commit the crime in that state. The Court rejected the argument, holding that because the crime of violence (kidnapping) continued through several states, prosecution was proper in any district where the crime of violence was committed, even if the firearm was used or carried in only one state. The decision made it easier for federal prosecutors to pick and choose the venues for their cases. FURTHER READINGS “Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes.” 1999. Prosecutor (March/April). “Federalization of Crimes: NDAA’s Represen- tative Reports on ABA’s Federalization Task Force.” 1999. Prosecutor (March/ April). Gondles, James A. 1999. “The Federalization of Criminal Justice.” Corrections Today (April). Little, Rory K. 1995. “Myths and Principles of Federalization.” Hastings Law Journal (April). CROSS REFERENCES Federal Courts; State Courts; States’ Rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 291 Clark v. Arizona, 548 U.S. 735, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006). The case centered on an Arizona law that, while affording criminal defendants the right to raise insanity as a defense, articulated a legal standard for insanity that encapsulated only half of the M’Naghten defense (A.R.S. § 13-502[A]). Arizona’s INSANITY DEFENSE was stated solely in terms of the defendant’s capacity to tell whether a criminal act was right or wrong. The act did not allow defendants to argue that they were insane because they failed to comprehend what they were doing while committing the act. Eric Clark, who was convicted of first-degree murder in an Arizona court, challenged the Arizona law, arguing that due process afford s defendants the right to assert either prong of the M’Naghten defense against criminal charges brought by the state or federal government. In a 6–3 decision authored by Justice DAVID SOUTER , the Court upheld the law. “[D]ue process imposes no single canonical formulation of legal insanity,” the Court observed. In fact, the Court said that because a survey of state and federal defenses relating to cognitive incapacity shows such a wide and varied landscape, “it is clear that no particular formulation has evolved into a baseline for due process, and that the in sanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.” The defendant could point to no evidenc e that was excluded, the Court emphasized, including his expert and lay testimony regarding his delusions, which tended to support a description of him as lacking the capacity to understand that the police officer was a human being. And, the Court added, there was no doubt that the trial court considered the evidence as going to an issue of cognitive capacity. So the defendant had his DAY IN COURT and was able to fully present an insanity defense under existing Arizona law, the Court concluded. A number of states prefer the IRRESISTIBLE IMPULSE test as the standard for determining the sanity of a criminal defendant. If the defendant is suffering from a mental disease that prevents control of personal conduct, he or she may be adjudged not guilty by reason of insanity, even if he or she knows the difference between right and wrong. The MODEL PENAL CODE of the American Law Institute established another test of insanity that has been adopted by almost all of the federal courts and by numerous state legislatures. Under the Model Penal Code test, a person is not responsible for criminal conduct if, at the time of such condu ct, he or she lacks the capacity either to appreciate the criminality or the wrongfulness of the conduct or to conform his or her conduct to the requirement of law. This la ck-of-capacity excuse does not apply to abnormalities demonstrated by a repetitive pattern of illegal or violent acts. Some states employ the lack-of-substantial- capacity test. The phrase “lacks substantial capacity” is a qualification of the M’Naghten rule and the irresistible-impulse test, both of which require the total absence of capacity. This test also req uires a showing of causality. The defense is not established merely by a showing of a mental disease; rather, it is established only if, as a result of the disease, the defendant lacks the substantial capacity that is required in order to hold him or her criminally responsible. For example, pyromania may be a defens e to a charge of arson, but it is no defense to a charge of larceny. An irresistible impulse arising from anger, jealousy, or a desire for revenge does not excuse a defendant from criminal responsibility unless such emotions are part of the mental disease that caused the crime. Generally, voluntary intoxication from drugs or alcohol does not excuse a criminal act. Involuntary intoxi cation is, however, a valid defense. It oc curs when a person is forced to take an intoxicati ng substance against his or her will or does so by mistake. If a defendant’s involuntary intoxicated condition causes a criminal act, the defendant will not be convicted if, because of the intoxication, he or she was unable to appreciate the criminality of the conduct. Fair Warning Defense The due process clauses contained in the Fifth and Fourteenth Amendments to the U.S. Constitution require that before a defendant may be prosecuted for criminal conduct, the law must make clear which conduct is criminal. Justice Oliver Wendell Holmes articulated the standard when he wrote that a criminal statute must give “fair warning … in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 341, 75 L. Ed. 816 (1931). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 292 CRIMINAL LAW The U.S. Supreme Court had the opportunity to revisit the fair-warning requirement in United States. v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). The Court observed that there are three manifestations of the “fair warning requirement.” First, the “vagueness doctrine” bars enforcement of statutes that either forbid or require an act in terms that are so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. Second, the Court wrote that the “canon of STRICT CONSTRUCTION of criminal statutes” ensures fair warning by limiting appli- cation of ambiguous criminal statutes to conduct that is clearly covered. Third, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. In other words, a trial court cannot clarify a statute by supplying terms through its own interpretation of the law, when those terms were not clearly contemplated by the statutory language chosen by the legisla- ture. However, the Court emphasized, the due process fair-warning requirement does not re- quire that prohibited criminal conduct be previously identified by one of its own decisions and held to apply in a factual situation “funda- mentally similar” to the defendant’scaseatbar, so long as the law gives “reasonable warning” that certain conduct is forbidden. Exculpatory Defenses Exculpatory defenses are factors that excuse a competent person from liability for a criminal act. Duress is an exculpatory defense. One who commits a crime as a result of the pressure of an unlawful threat of harm from another person is under duress and may be excused from criminal liability. At trial, whether the defendant was under duress is a QUESTION OF FACT for the judge or jury. The defense of duress was invoked in the 1976 trial of Patricia Campbell Hearst, the daughter of wealthy newspaper owners Randolph A. Hearst and Catherine C. Hearst. On February 4, 1974, PATRICIA HEARST was kidnapped by the Symbio- nese Liberation Army (SLA) and held for the unusual ransom of food distribution to the poor. Shortly after the abduction, Hearst sent a recorded message to her parents, in which she announced that she had become a social revolutionary. On April 15 Hearst participated in a ba nk robbery with members of the SLA. She was arrested in September 1975 and tried for armed bank robbery. At trial, Hearst’s lawyers argued, in part, that Hearst’s participation in the robbery had been caused by duress. Hearst testified that she had feared for her life as she had stood inside the Hibernia Bank. On CROSS-EXAMINATION, Hearst invoked her FIFTH AMENDMENT PRIVILEGE AGAINST SELF -INCRIMINATION 42 times. The refusal to answer so many prosecution questions might have damaged Hearst’s credibility, and the jury did not accept her argument of duress. Hearst was convicted and sentenced to seven years in prison. (President JIMMY CARTER commuted her sentence on February 1, 1979, and ordered her release from prison.) Entrapment is another exculpatory defense to criminal charges. Entrapment exists if a law enforcement officer induces a person to commit a crime, for the purpose of instituting a criminal prosecution against that person. It is not available if law enforcement merely provides material for the crime. Mistakes of law or fact are seldom successful defenses. Generally, a MISTAKE OF LAW is applica- ble only if the criminal statute was not published or made reasonably available prior to the act; the accused reasonably relied on the contrary teaching of another statute or judicial decision; or, in some jurisdictions, the accused reasonably relied on contrary official advice or a contrary official interpretation. A MISTAKE OF FACT may excuse a defendant if the mistake shows that the defendant lacked the state of mind required for the crime. For example, in a specific-intent crime such as embezzlement, evidence that the accused was unaware of transfers into his or her own bank account would negate the specific criminal intent required for conviction. Justification defenses include necessity, SELF- DEFENSE, defense of others, and defense of property. If a person acts to protect the life or health of another in a reasonable manner and with no other reasonable choice, that person may invoke the defense of necessity. According to the Model Penal Code, self-defense and defense of others are permissible when it reasonably appears necessary that force is required to defend against an aggressor’s imminent use of unlawful force. Nondeadly force may be used in order to retain property, and DEADLY FORCE may be used only to prevent serious bodily harm. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 293 Newly Recognized Defenses When a court announces a decision that includes a new RULE OF LAW or a new interpretation of an existing rule of law, a question arises whether the new decision applies retroactively or only prospectively. If it applies retroactively, previously convicted defendants may avail themselves of the new decision as grounds for an appeal or for a new trial in which they may raise the new rule as a defense (appeals would usually take the form of a COLLATERAL ATTACK, because the STATUTE OF LIMITATIONS for direct appeals will have passed for most incarcerated defendants). The U.S. Constitution neither requires nor prohibits retroactive application of a new decision, and the determination of whether a new rule of law or new interpretation of an existing rule of law should be applied retroactively is generally a matter of judicial discretion. When the U.S. Supreme Court announces a new rule of law or a new interpretation of an existing rule of law, the new rule or interpreta- tion may be applied retroactively in a federal collateral proceeding only if (1) the rule is substantive and not procedural; or, if it is procedural, then (2) the rule must be a “watershed rule of criminal procedure,” that implicates fundamental fairness and the accuracy of a criminal proceeding. Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). A rule implicates “fundamental fairness and the accuracy of a criminal proceeding” when the rule is “necessary to prevent an impermissibly large risk of inaccurate conviction.” State Courts may give broader application to rules newly recognized by the U.S. Supreme Court, as those state courts deem appropriate. Danforth v. Minnesota, —U.S.— 128 S, Ct. 1029, 169 L. Ed. 2d 859 (U.S. 2008). Merger Under common law, when a person committed a major crime that included a lesser offense, the latter merged with the former. This meant that the accused could not be charged with both crimes. The modern law of merger applies only to solicitation and attempt. One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Likewise, a person who attempts and completes a crime may not be convicted of both the attempt and the completed crime. Civilian Criminal Law and Military Criminal Law Because interference by civilian courts in military matters may undermine military order, discipline, uniformity, efficiency, and obedi- ence, the U.S. military is governed by a system of justice that is separate and distinct from the system of justice administered by civilian courts. The UNIFORM CODE OF MILITARY JUSTICE (UCMJ), first enacted in 1950, is the principal body of laws that apply to members of the military. Military tribunals interpret and enforce it. Persons entering the Armed Forces of the United States agree to abide by the UCMJ, obey lawful orders, serve in combat as required, and accept any changes in status or benefits brought about by war or statutory amendments. In return, the military branch agrees to provide members of the U.S. armed forces with compensation, fairly enforce the UCMJ, and honor promises concerning assignment, educa- tion, compensation, and support of dependents. Proceedings, findings, and judgments of military tribunals as approved, reviewed, or affirmed by higher military courts are typically final and conclusive, as are all dismissals, discharges, and other sentences carried out in furtherance of a COURT-MARTIAL. Correction of errors made by a military tribunal is not for the civilian courts, but for the military authorities, which have the sole power of appellate review, except that decisions made by the Court of Appeals for the Armed Forces are subject to review by the U.S. Supreme Court. The concurrent systems of justice for civil and military matters in the United States has been a source of frustration for those unfamiliar with them. For example, after the Bush administration declared a war on terror after the attacks of September 11, 2001, more than 500 U.S. military personnel were accused of abusing detainees held in Iraq, Afghanistan, and at the U.S. Naval facility at Guantanamo Bay, Cuba. Yet those accusations resulted in fewer than 60 convictions, and the only officer prosecuted for the detainee abuse at the Abu Ghraib prison in Iraq, Lieutenant Colonel Steven L. Jordan, was acquitted of all charges relating to his failure to properly train and supervise enlisted soldiers involved in detainee interrogations. Legal observers in the United States and around the world questioned the legitimacy of these military proceedings, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 294 CRIMINAL LAW suggesting that they were biased in favor of U.S. military personnel. FURTHER READINGS Clough, Jonathon, and Carmel Mulhern. 1999. Criminal Law. Sydney: Butterworths. Kaplan, John, and Robert Weisberg. 1991. Criminal Law: Cases and Materials. 2d ed. Boston: Little, Brown. McMahon, Katherine E. 1993. “Murder, Malice, and Mental State: A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama.” Massachusetts Law Review (June). Singer, Richard G., and John Q. La Fond. 2007. Criminal Law. 4th ed. New York, N.Y.: Aspen Publishers. CROSS REFERENCES Attempt; Conspiracy; Criminal Procedure; Diminished Capacity; Insanity Defense; Intent; Juvenile Law; Military Law; Motive. CRIMINAL NEGLIGENCE The failure to use reasonable care to avoid consequences that threaten or harm the safety of the public and that are the foreseeable outcome of acting in a particular manner. Criminal negligence is a statutory offense that arises primarily in situations involving the death of an innocent party as a result of the operation of a motor vehicle by a person who is under the influence of DRUGS AND NARCOTICS or alcohol. Most statutes define such conduct as criminally negligent homicide. Unlike the tort of NEGLIGENCE, in which the party who acted wrongfully is liable for damages to the injured party, a person who is convicted of criminal negligence is subject to a fine, imprisonment, or both, because of the status of the conduct as a crime. CRIMINAL PROCEDURE Criminal procedure is the framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a j udgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime. Introduction Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investi gation, trial, sentencing, and appeals. The main constitutional provisions regard- ing criminal procedure can be found in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution. The FOURTH AMENDMENT covers the right to be free from unreasonable searches and arrests: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon PROBABLE CAUSE,supportedbyOathor affirmation, and particularly describing the placetobesearched,andthepersonsorthings to be seized. A warrant is a paper that shows judicial approval of a search or arrest. The U.S. Supreme Court has held that the Fourth Amendment does not require a warrant for all searches; rather, it prohibits unreasonable searches. All warrantless searches are unreasonable unle ss they are executed pursuant to one of several exceptions carved out by the Court. The FIFTH AMENDMENT covers an array of procedural concerns, including the death pen- alty, multiple trials for the same criminal offense ( DOUBLE JEOPARDY ), SELF-INCRIMINATION, and the general right to due process. It reads, in relevant part, No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a GRAND JURY … nor shall any person be subject for the same offence to be twice put in jeopardy of LIFE OR LIMB; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. The SIXTH AMENDMENT addresses the proce- dures required at trial. It provides, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informedofthenatureandcauseofthe accusation;tobeconfrontedwiththe witnesses against him; to have COMPULSORY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL PROCEDURE 295 PROCESS for obtaining witnesses in his favor, and to h ave the Assistance OF COUNSEL for his defense. Finally, the EIGHTH AMENDMENT states: “Ex- cessive bail shall not be required, nor excessive fines imp osed, nor cruel and unusual punish- ments inflicted.” At first, these amendments were construed as applying only to federal prosecutions. The states were free to enact criminal procedures contrary to them until the passage of the FOURTEENTH AMENDMENT in 1868. The Fourteenth Amendment forbids the states to “deprive any person of life, liberty, or property, without due process of law” (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments. Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. For state courts, the U.S. Supreme Court has adopted a “selective incor- poration” approach to determine precisely what process is due a criminal DEFENDANT. Under this approach, only fundamental rights are protected. According to the Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures; freedom from CRUEL AND UNUSUAL PUNISHMENT; assistance of counsel; protection against self-incrimina- tion; confrontation of opposing witnesses; a SPEEDY TRIAL; compulsory process for obtaining witnesses; a jury trial for prosecutions for cases in which the defendant could be incarcerated; and protection against double jeopardy. The only protections that are not specifically re- quired of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury. The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own crimi- nal procedures, and procedur es vary from state to state. State and federal governments may not limit the protections guaranteed by the Consti- tution, but they may expand them. Automobile Exception to the Warrant Requirement An example of this principle may be seen with the so-called automobile exception to the Constitution’s search-warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a “reduced expectation of privacy” and because a vehicle is inherently mobile. This reduced expectation of privacy also allows police officers with probable cause to search a car in order to inspect drivers’ and passengers’ belong- ings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise (Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 [1999]). However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, ruled that all warrantless searches are unreasonable except for a group of well-defined such searches, and this group does not include warrantless AUTOMOBILE SEARCHES (State v. Sterndale, 139 N.H. 445, 656 A.2d 409 [1995]). Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle. New Hampshire, therefore, provides expanded pro- tections under the Fourth Amendment. Conversely, a state may not allow the search of any vehicle without reasonable suspicion. A vehicle search that is conducted in the absence of reasonable suspicion would be an infringe- ment of guaranteed Fourth Amendment pro- tection, and a court would strike down such an infringement as unconstitutional. A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of an entire vehicle following a traffic stop in which the driver is issued a citation for speeding. Although law enforcement may conduct a full vehicle search if the defendant is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search (Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 [1998]). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 296 CRIMINAL PROCEDURE Investigation Criminal prosecutions officially begin with an arrest. However, even before the arrest, the law protects the defendant against unconstitu- tional police tactics. The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. Generally, a SEARCH WARRANT is required before an officer may search a person or place, although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant (Illinois v. McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 [2001]). Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions, and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. But the Fourth Amend- ment does prohibit police officers from detain- ing pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. The U.S. Supreme Court has held that reason- able suspicion is provided for a stop-and-frisk type of search when a pedestrian who, upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking, flees from the officers on foot (Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 [2000]). The warrant requirement is waived for many other searches and seizures as well, including a search incident to a lawful arrest; a seizure of items in plain view; a search to which the suspect consents; a search after a HOT PURSUIT ; and a search under exigent or emer- gency circumstances. Nor does the Fourth Amendment require the police to obtain a warrant before seizing an automobile from a public plac e when they have probable cause to believe that the vehicle is forfeitable contraband (Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 [1999]). However, the Fourth Amendment does prohibit police use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home. Such devices are typically employed to determine whether a suspect is using a high- intensity lamp to grow marijuana in his or her home. The U.S. Supreme Court has ruled that the use of thermal-imaging devices constitutes a search within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant (Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 [2001]). The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsen- sual urine testing of pregnant women who had manifested symptoms of possible cocaine use. The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official noncon- sensual search is unconstitutional if not autho- rized by a valid search warrant (Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 [2001]). The U.S. Supreme Court’s Fourth Amend- ment jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspi- cionless vehicle seizures. The Court has held that the Fourth Amendment allows law en- forcement to perform warrantless vehicle sei- zures at a fixed checkpoint along the nation’s border to intercept illegal aliens, so long as the search is reasonable in light of the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The Court also ruled that roadblocks may be used to intercept drunk drivers. However, the Court rejected on Fourth Amend- ment grounds the use of a roadblock to perform warrantless and suspicionless searc hes of auto- mobiles for the purpose of drug interdiction (Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 [2000]). When an officer seeks a search warrant, he or she must present evidence to a judge or magistrate. The evidence must be sufficient to establish probabl e cause that evidence of a crime will be found at the place to be searched. Probable cause is a level of belief beyond mere suspicion but short of full certainty. Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case. For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person’s home. However, if the person is discovered with a large amount of marijuana, the quantity may support GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL PROCEDURE 297 . harm. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 2 93 Newly Recognized Defenses When a court announces a decision that includes a new RULE OF LAW or a new interpretation of an. States’ Rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 291 Clark v. Arizona, 548 U.S. 735 , 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006). The case centered on an Arizona law that,. enough to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 289 understand the difference between right and wrong and the nature of their actions. Children under the age of seven are