Criminal Law Outline
Professor Russell Coombs| Fall 2009 | Rutgers School of Law at Camden
LaFave, Wayne R. Modern Criminal Law: Cases, Comments and Questions (West Group 4th ed. 2006)
I. CRIMINAL JUSTICE PROCESS AND PURPOSES
A. SUBSTANCE AND PROCEDURE
The study of criminal law includes examination of specific crimes and defenses as well as procedures followed to apply sanctions against those who commit the crimes. These two
areas of criminal law are normally studied separately in law school. As the cases studied in substantive courses all involve some procedural considerations, a brief overview of the criminal justice system is critical even in a course on substantive criminal law. Largely due to the overriding mandates of the United States Constitution, the procedural rules of each state and the federal government are similar; still, important variations exist that should not be forgotten even if beyond the scope of this brief overview.
B. TYPICAL STATE PROCEDURE (CALIFORNIA)
1. Offense. The criminal justice system reacts to criminal conduct. The process begins when an offense is reported to the police. Investigators gather evidence—testimonial, tangible, or otherwise—with the objective of determining who perpetrated the crime. One significant procedural problem that frequently arises at this stage is that of searches and seizures.
2. Arrest. Once sufficient evidence is gathered to constitute probable cause that an identified person committed the crime, the suspect may be arrested with or without a warrant, depending on the circumstances. The arresting officer takes the suspect into custody and brings him to the police station.
3. The Charge. The police ask the district attorney to make out a formal charge and an affidavit, which is a written complaint charging the accused with a specified crime or crimes. A complaint is prepared in advance when a person is arrested under a warrant because it is used to obtain the warrant.
4. Proceedings Before a Magistrate. The accused is then taken before the committing magistrate, a municipal court judge for example, who advises the accused of his rights and sends him back to jail or allows him to post bond. If the charge is a misdemeanor, the accused is immediately arraigned and must plead to the charge. If the charge is a felony, the accused normally does not have to plead; instead, a date is set for a preliminary hearing.
5. Preliminary Hearing. When a felony is charged, the accused is entitled to a preliminary hearing to determine whether there are sufficient grounds to bind the accused over for a trial.
a. Sufficient Evidence. The committing magistrate rules on the evidence. If the critical
evidence is suppressed for some reason at this point, then the accused may be set free and
the charge dismissed. The accused has a chance to cross-examine the prosecution’s
evidence, which is an important discovery technique.
b. Decision. If the committing magistrate finds that the evidence is sufficient, the accused
is committed.
c. Writ of prohibition. If the magistrate finds sufficient evidence, the accused may bring a
writ of prohibition to appeal the magistrate’s findings.
6. Indictment. As an alternative, the prosecution may seek an indictment without a preliminary
hearing the prosecuting attorney presents a written accusation to an investigatory body, such as a
grand jury. An indictment is simply a finding made by the grand jury that there is sufficient
evidence to warrant a conviction of the crime. A grand jury indictment may either precede or
follow arrest. The prosecution may choose the indictment procedure when it wants to keep its
information confidential, because in most states the accused does not have the opportunity to
appear or to challenge the prosecution’s evidence.
7. Accusatory Pleading. The prosecution of the case commences once the government files either
an indictment or an information. An information is simply the written charge on which the
accused will be tried.
8. Arraignment. Once the pleading is filed, the accused is brought before the court and informed
of the charges. The accused then please to the charge.
9. Motions and Pleas. The accused is normally permitted to make certain motions of one of several different pleas.
a. Motions. The accused may file a demurrer, or a challenge to the legal sufficiency of the
accusatory pleading, such as the court lacks jurisdiction or that no crime is alleged. Other motions include ones to quash or set aside the indictment or information, to dismiss, for a change of venue to another course, for discovery, or to suppress certain evidence.
b. Pleas. If the charges hold up after consideration of the motions, the accused may plead guilty, not guilty, or nolo contendere, which is the same as pleading guilty except that the conviction cannot be used in subsequent civil proceedings.
10. Discovery. Normally, both sides continue the fact-finding process to prepare for trial. The parties use the discovery process to find out as much as possible about the opposition’s case.
11. Extraordinary Writs. The accused may file certain extraordinary writs before trial begins. The writ of prohibition in an appeal to a higher court to terminate the judicial process, normally on the basis of a lack of proper jurisdiction in the lower court. The other writ in common use is that of habeas corpus (“bring forth the body”) which tests any restraint that is contrary to “fundamental law,” such as any restraint that is contrary to the state constitution.
12. Trial. Numerous procedural issues arise during the trial process, including the following:
a. The competency of the accused to stand trial, as well as the sanity of the accused at the
time of the offense.
b. The accused’s right to counsel.
c. The right to trial by jury and the selection of jurors.
d. The right to a fair trial.
e. The accused’s and the witnesses’ privilege against self-incrimination, including the
accused’s right not to testify as witnesses at all.
f. The right to compulsory process to obtain witnesses.
g. The right confront accusers and cross-examine witnesses.
h. Issues relating to trial of two or more accused in the same trial; to more than one trial of
the same accused for the same criminal act; and to the trial of the same accused for more
than one crime arising from the same act.
i. Evidence questions relating to the introduction or order of evidence, the burden of proof,
motions, jury instructions, etc.
j. The verdict, the sentence, and the entry of judgment by the court.
13. Sentencing. Ordinarily the judge has substantial discretion in determining the appropriate
sentence. However, modern statutes sometimes set a minimum sentence as well as a maximum
sentence for a particular offense.
14. Post-Trial Motions. Typically the accused who has been convicted may assert several post-trial
motions, including a motion to vacate because the judgment was based on erroneous facts or was obtained by fraud or deceit, and a motion for a new trial.
15. Appeal. Most states grant a first appeal from a criminal conviction as a matter of right. Other
appeals may also be available.
16. Habeas Corpus. The writ of habeas corpus is available at any stage of criminal process.
C. FEDERAL PROCEDURE
1. Similarities in State Procedure. In many respects, federal criminal procedure resembles state
procedure. In fact, the Federal Rules of Evidence and Federal Rules of Criminal Procedure have served as models for state procedure. A few of the significant rules include the following.
2. Arrest. A warrant may be issued on presentation of a complaint by the United States Attorney,
identifying the crime and the accused. [Fed. R. Crim. P. 4(a)] A valid arrest may also be made
without warrant where there is probable cause. (Remember that only federal crimes are
prosecuted in the federal system.)
3. Appearance Before a Magistrate. If the accused was arrested without a warrant, then a
complaint is prepared. If a warrant was used, the complaint was previously prepared. The
accused is next brought before a United States Magistrate. This must be done without
unnecessary delay. [Fed. R. Crim. P. 5(a)]
4. Preliminary Examination. Preliminary examinations are also held before the magistrates.
[Fed. R. Crim. P. 5(c)]
5. Grand Jury Indictment. If a grand jury has returned an indictment against the accused, he is
not entitled to a preliminary examination, except that Federal Rule of Criminal Procedure 5(c) provides that if person is taken into custody before the indictment is given, he is entitled to a preliminary examination. This avoids the problem of lengthy holding of a defendant waiting for a grand jury.
6. Arraignment. The accused is arraigned in federal district court.
7. Motions and Pleas. Under Federal Rule of Criminal Procedure 12, the motion to dismiss is used
in place of all other motions discussed above under state procedure. This motion attacks all
possible defects.
D. OBJECTIVES OF CRIMINAL LAW
Criminal law involves a determination of whether particular conduct should be punished by
society. The ultimate issue in any specific case is whether the accused’s conduct creates criminal
liability, i.e., whether the accused has committed each of elements of an offense, whether there
are any exculpatory defenses, and whether there are constitutional prohibitions against
conviction or sentencing. The study of criminal law therefore involves consideration of why
society makes certain conduct illegal and what society must prove to find a person guilty.
1. Basic Definition. A crime is a social harm as defined and made punishable by law. It is an offense against the state for which the state may seek redress by instituting a legal action. Compare this to a tort, which is a civil wrong against an individual or entity for which the injured party may seek damages. The victim of a crime does not bring the criminal action. Only the state, through a prosecutor, may initiate formal criminal charges.
2. The Criminalization Decision. Criminal sanctions are only one of numerous means available to induce compliance with preferred social norms of conduct. Others include civil liability, licensing regulations, and private or social pressure. Legislatures and courts must determine what types of undersirable conduct deserve criminal punishment. A decision to criminalize conduct must include consideration of the various public policies that will be promoted by the decision.
a. Criminal laws expressing a moral code but which go unenforced, such as gambling and
adultery laws, tend to impair the credibility of the criminal law in general.
b. Enforcement of unpopular laws such as those prohibiting possession of marijuana may promote general disrespect for criminal law.
c. In victimless crimes, there are no complaining victims. Knowledge of such violations requires official detection, which creates the possibility of discriminatory enforcement.
d. The methods of investigation that the police must utilize for detection of certain crimes may be degrading.
e. The cost of enforcement of some crimes may be greater than the benefit derived from that enforcement.
f. Outlawing desired commodities such as drugs may spawn organized crime, which in turn creates more crime.
3. The Purposes of Punishment. C
ilty and sentenced to three years in prison. D appeals, claiming the trial court should have directed a verdict because the statute did not prohibit oral sex.
Issue. Does a criminal statute prohibiting the “crime against nature” include oral sex as well as traditional sodomy?
Held. Yes. Judgment affirmed.
– Several states, including Kentucky in the Poindexter case, have held that the term “sodomy” does not include oral sex. Most of those states had statutes that specifically used the term “sodomy,” however. The states that did not, such as California, followed cases from states that did have statutes specifically referring to “sodomy.” One Illinois court has held that although the terms “crime against nature” and “sodomy” have often been used synonymously, the terms are not necessarily synonymous.
– The South Dakota statute specifically states that the common law rule of strict construction has no application to the Penal Code, and that all its provisions must be construed “according to the fair import of their terms, with a view to effect its objects and promote justice.”
– The statute in this state does not specifically refer to “sodomy.” Pursuant to the statutory construction requirement, the clause “crime against nature” must have been intended to include every unnatural carnal copulation. It would not make sense to interpret the statute to allow the most heinous form of the crime against nature to go unpunished simply because it was an unusual form of the crime.
Comment.
– The court concluded that oral sex is the most serious form of the crime against nature and was simply not known to the common law, or it would have been included in the common law definition of sodomy. However, in State v. Morrison (NJ 1953), the court applied a strict construction of a sodomy statute and refused to expand it beyond what the common law provided.
C. CONSTITUTIONAL LIMITATIONS
1. Introduction. While constitutional issues are frequently raised as objections to procedural aspects of criminal law, certain constitutional values are implicated by substantive criminal law. Personal sexual practices have been subject to criminal sanctions that raise constitutional defenses.
2. Due Process and Vagueness. The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit convictions for an offense that is too vague—i.e., insufficiently precise as to the persons and conduct within its scope and the punishment that can be exacted for its violation. The degree of certainty required of criminal statutes depends upon a number of factors, including the extent to which statutory terms can be made more precise without creating “loopholes,” whether flexible language is necessary to enforcement of the statute, and whether a particular important interest (such as free speech) is endangered by the lack of precision.
a. Advance notice. In part, requirement of precision serves to assure that persons potentially subject to a statute will have advance warning as to whether their conduct is criminal. Thus, a statute is unconstitutionally vague if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.
b. Enforceable legal standards. In addition, statutes must be sufficiently certain so that courts will have adequate guidance when called upon to enforce them. Accordingly, a statute that leaves judges and jurors free to decide, without any fixed standard, what is made criminal, is unconstitutionally vague.
c. Protection against enforcement abuse. Statutory precision is also directed at curbing abuse by law enforcement officials. Therefore, statutes that are so worded as to place unfettered discretion in the hands of the police are void for vagueness.
d. Curing vagueness by “scienter.” A statute that would otherwise be unconstitutionally vague may be upheld if it requires that the prohibited act be committed with “scienter” or intent. The theory often urged is that the scienter element satisfies the “fair warning” purpose of the “void for vagueness” doctrine.
e. Application of vagueness doctrine—
Locke v. State, (Tenn. 1973).
Facts. Locke (D) was convicted of committing a “crime against nature” as proscribed by Tennessee statute, and sentenced to five to seven years. Evidence showed that D, at knife point, forced the victim, Mrs. Rogers, to submit to two episodes of cunnilingus. D appeals from his conviction.
Issue. Is cunnilingus an act made unlawful as a crime against nature?
Held. Yes. Judgment affirmed.
– The Tennessee Supreme Court has held that fellatio is such a crime. It would be paradoxical to hold that fellatio is proscribed and that cunnilingus is not.
– Further, the state’s high court
