Foundations of Criminal Law and Procedure, Preliminary Edition

SECTION ONE: CRIMINAL LAW AND THE JUSTICE SYSTEM: THE BASICS

Chapter One: Fundamental Principles of Criminal Law

Overview and Learning Objectives

Functions and Limitations of Law

Classifications of Law

Legal Traditions or Families of Law

Inquisitorial Approach v. Adversarial Approach

Civil Law v. Criminal Law v. Moral Law

Classifications Based on the Seriousness of the Offense

Mala in Se v. Mala Prohibita Crimes

Classifications Based on the Type of Harm Inflicted

Substantive v. Procedural Law

Wrap Up

TERMINOLOGY

Chapter Two: The Structure of Government and Its Relationship to the Criminal Law

Overview and Learning Objectives

The Structure of American Government

Separation of Powers

Federalism

States’ Authority to Pass Criminal Laws

Congress’s Authority to Pass Laws

Constitutional Supremacy

Rule of Law, Rechtstaat and Judicial Review

Specialized Courts and Tribunals

Sources of Criminal Law

Federal and State Constitutions

Legislative Law

Administrative Law

Common Law

Judge-Made Law—Case Law

Court Rules

Movement Towards Codification—The American Institute and the Model Penal Code

Wrap Up

TERMINOLOGY

Chapter Three:  The Courts

Overview and Learning Objectives

Jurisdiction

Structure of the Courts

Separate Federal and State Court Systems

The Federal Court System

State Court Systems

Hierarchy of the Dual Court System

Trial Courts and the Principle of Orality

Appellate Courts, the Appellate Function, and the Standard of Review

Standard of Review

Plain Error

Appellate Decisions

Federal Court Oversight Over State Actions and Laws

The Courtroom Workgroup

Judges

Bailiffs

Local and State Trial Court Administrators

Court Clerks and Staff

Jury Clerk

Scheduling Clerk

Judicial Clerk, Law Clerk, and Judicial Assistant

Release Assistance Officers and Indigency Verification Officers

Prosecuting Attorneys

Defense Attorneys

Wrap Up

TERMINOLOGY

SECTION TWO: CRIMINAL LAW AND ITS LIMITATION

Chapter Four: Constitutional Limits on Criminal Law

Overview and Learning Objectives

Ex Post Facto Laws

Bills of Attainder

Freedom of Speech

Unprotected Speech

Protected Speech

The Doctrine of Void-for-Vagueness

The Doctrine of Overbreadth (Due Process)

Freedom of Religion

The Establishment Clause

The Free Exercise of Religion Clause

When Free Exercise of Religion Conflicts with Criminal Law

Freedom of Association and Assembly

Time, Manner, and Place Restrictions

Public Forums, Quasi Public Forums, Non-Public Forums

The Right to Privacy

Right to Bear Arms

Equal Protection Under the Law

Standard of Judicial Review in Equal Protection Challenges

Cruel and Unusual Punishment

Barbaric Punishment

Disproportionate Punishment

Constitutional Limits on Procedural Actions

Fourth Amendment Limitations

Fifth Amendment Limitations

Sixth Amendment Limitations

Eighth Amendment Limitations

Wrap Up

TERMINOLOGY

SECTION THREE: ELEMENTS OF A CRIME AND DEFENSES TO CRIMINAL LIABILITY

Chapter Five: General Principles and Elements of Criminal Law

Overview and Learning Objectives

Substantive Criminal Law Defines Crimes

The Elements of Criminal Law

Legality and Punishment

Actus Reus

Mens Rea

Concurrence of Actus Reus and Mens Rea

Causation

Harm, Future Harm and Inchoate Offenses of Attempt, Conspiracy, and Solicitation

Special Elements and Non-Elements of Crimes

Parties to Crime

Common Law Classifications

Modern Classifications

Vicarious Liability

Wrap Up

TERMINOLOGY

Chapter Six: Defenses to Criminal Liability

Overview and Learning Objectives

Perfect and Imperfect Defenses

Negative and Affirmative Defenses

Justifications

Execution of Public Duties

Self-Defense

Defense of Others

Defense of Property and Habitation

Consent

Choice of Evils (Necessity)

Excuses

Insanity

Extreme Emotional Disturbance (Diminished Capacity)

Automatism

Age/Infancy

Intoxication

Duress

Mistake of Fact/Mistake of Law

Nontraditional Defenses

Procedural Defenses

Entrapment

Double Jeopardy

Statute of Limitations

Speedy Trial

Constitutional and Contractual Immunity

Wrap Up

TERMINOLOGY

SECTION FOUR:  INVESTIGATING CRIME—THE INVESTIGATORY PHASE OF THE CRIMINAL JUSTICE PROCESS

Chapter Seven:  Search and Seizure

Overview and Learning Objectives

The Fourth Amendment and the Warrant Requirement

Requirements for a Warrant

Special Warrants for Electronic Eavesdropping

Executing a Warrant

After Executing the Warrant

Defining Searches

Olmstead: Searches Trespass on a Person’s Property Interest

Katz: Searches Involve a Person’s Reasonable Expectation of Privacy

From Katz to Olmstead: United States v. Jones and Florida v. Jardines

“Searches” that, by Definition, are not Fourth Amendment Searches

Plain View

Pen Registers, Bank Accounts, Cell Phone Records, Emails

Open Fields

Consent Searches

Abandoned Property

Dog Sniffs

International Borders

Searches that are Permissible without a Warrant Searches Incident to Arrest

Exigent Circumstance Searches

Automobile Searches

Special Needs Searches

Seizing People: Arrests, Stops, and Encounters

Arrests

Stops

Mere Encounters

Actions Combining Searches and Seizures

Seizing Cars and Their Occupants

Checkpoints Roving Patrols, Checkpoints, and Roadblocks

Material Witness Warrants and Detentions

Seizing Property

Wrap Up

TERMINOLOGY

Chapter Eight:  Confessions, Interrogations and Identification Procedures

Overview and Learning Objectives

Coerced Confessions and Due Process

The Voluntariness Test

False Confessions and “Voluntariness”

The Test of Voluntariness: Totality of the Circumstances

The Fifth Amendment’s Self-Incrimination Prohibition

Claiming the Fifth Amendment

Types of Hearings to Which the Fifth Amendment Applies

Types of Evidence Covered by the Privilege

The Sixth Amendment and Confessoins

Miranda and its Progeny

Custody

Interrogation

Warnings

Invoking (and Waiving) Miranda

Limitations (Exception) to Miranda

Dickerson: Making Miranda “Constitutional”

Idenfication Procedures

Forms of Identification Procedures

Errors in Eyewitness Identification

Legal Challenges to Identification Procedures

Ensuring Accurate Identifications

Wrap Up

TERMINOLOGY

SECTION FIVE: THE ACCUSATORY PHASE AND THE ADJUDICATORY PROCESS

Chapter Nine: Accusatory Phase—Pretrial Procedure

Overview and Learning Objectives

Probable Cause to Detain Hearings

First Appearances and Arraignments

Pretrial Release

Bail—Constitutional Provisions

Types of Release

Preventive Detention-Federal Bail Reform Act of 1984

Getting to the Court of Proper Jurisdiction

Grand Jury

Preliminary Hearings

Comparing Grand Jury and Preliminary Hearings

Waiver of Presentment

Plea-Bargaining

The Magnitude of Plea-Bargaining and Its Implications

Charge Bargaining and Sentence Bargaining

Forms of Pleas: Guilty Pleas, No Contest Pleas, and Alford Pleas

Ratification of the Plea—Pre-Sentencing Hearing

Withdrawing a Plea

Diversions and Conditional Discharges

Pretrial Motions

Aid and Assist/Competency Motion

Discovery Motions

Motions to Suppress—The Exclusionary Rule

Demurrers

Severance and Joinder

Change of Venue

Other Pretrial Motions: Motion to Dismiss

Extradition

Wrap Up

TERMINOLOGY

Chapter Ten: The Adjudicatory Phase—The Trial Process

Overview and Learning Objectives

Role of Evidence in an American Trial

Source of Rules

Classification of Rules of Evidence

Purpose of Evidentiary Rules

Relevant Evidence

Character Evidence

Hearsay Evidence

Rules Relating to Witnesses

Rules Relating to Privileges

Making Objections and Offers of Proof

Rules Governing the Substitution of Evidence

Order of the American Criminal Trial

The Jury

Constitutional Right to Jury Trial

Jury Unanimity

Petit Jury Distinguished from Grand Jury

Challenging Jurors

Role of Juries in Sentencing: Death Qualified Juries

Waiving a Jury

Jury Size

Jury Instructions

Charging the Jury

Jury Deliberation

Jury Sequestration

Announcing the Verdict

Impeaching Jury Verdicts

Constitutional Issues at Trial

Right to Confrontation

Right to Cross-Examine Co-Defendant’s Statements

Right to Compel Witnesses—Compulsory Process

Right to a Speedy Trial

Right to a Fair Trial

Victims’ Rights to Participate at Trial

Wrap Up

TERMINOLOGY

SECTION SIX: SENTENCING PHASE AND BEYOND

Chapter Eleven: Sentencing

Overview and Learning Objectives

Procedural Sentencing Law

Pre-Sentence Reports

Right of Allocution

Right to Counsel at Sentencing

Victim and Victim Impact Statements

Substantive Sentencing Law

Approaches to Sentencing

Indeterminate Sentencing Approach

Indefinite Sentencing Approach

Determinate Sentencing Approach

Definite Sentencing Approach

Mandatory Minimum Sentences

Presumptive Sentencing Guidelines

Other Mandatory Sentences—Penalty Enhancements

Forms of Sentences

Monetary Sanctions

Confinement Sanctions

Community Based Sanctions

Physical Punishment

Wrap Up

TERMINOLOGY

Chapter Twelve:  Challenges to Convictions—Post-Trial Motions, Appeals, Habeas Corpus, Post-Conviction Relief Statutes, and Executive Relief

Overview and Learning Objectives

Post-Trial Motions Filed in Trial Court

Motion to Withdraw a Plea

Motion for Judgment of Acquittal (JNOV)

Motion for a New Trial

Direct Review: Mandatory and Discretionary Appeals

Appealing Guilty Pleas

Appeals by the Prosecution

Mandatory Review—Appeals of Right by the Defendant

Discretionary Appeals by the Defendant

Collateral (Indirect) Review of Convictions

Writs of Habeas Corpus

Habeas Corpus and the Anti-Terrorism and Effective Death Penalty Act

Ineffective Assistance of Counsel and Habeas Corpus

DNA Evidence and Habeas Corpus

Post Conviction Relief (PCR): Statutory Postconviction Remedies

Non-Judicial Relief: Clemency

Presidential Pardons

State Pardons

Wrap Up

TERMINOLOGY

Glossary

Selected Sections of the United States Constitution