1. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

2. ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Chapter 1 What is Criminal Law? UNIT ONE: THE HISTORY OF CRIMINAL LAW

3. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Introduction and Historical Background The law is defined as the body of rules of conduct created by government and enforced by the authority of government. Jurisprudence is the study of law. Criminal law is a specialized part of the study of jurisprudence. The United States has a system of law derived from the English system of Common Law. Using previous decisions in similar cases to decide a current case is called following the rule of stare decisis. The earlier case that the court relies on as stare decisis is called a precedent.  Theories of Law and Schools of Jurisprudence  Durkheims’ Consensus Theory Crimes are crimes because the society decides they are.

4. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Marx’s Ruling Class Theory Laws are a reflection of the interests or ideology of the ruling class. Command school theory law is a set of rules developed by the ruling class or elite and imposed on the society.  Blackstone’s Theory There are two different types of crimes.  Some acts are crimes because the behavior is inherently bad or evil.  Other acts are crimes because society has chosen to make some behaviors crimes.  The Natural Law School of Jurisprudence Believes that people have natural rights and that laws are based on what is right.  The Historical School The historical school of jurisprudence states that law is merely the accumulation of a society’s social traditions.

5. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The Analytical School of Jurisprudence The analytical school of jurisprudence holds that logic determines what is law.  The Sociological School of Jurisprudence The sociological school of jurisprudence holds that law is a way of achieving sociological goals within a society.  The Crit and the Fem-Crit School of Jurisprudence The critical legal studies school, or crits, believe that the legal system is arbitrary and artificial. The fem-crits apply the crit theory of oppression and control to women.  Criminal Law vs. Civil Law Criminal law is designed to protect and vindicate public rights. Civil law is used to resolve private disputes.

6. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Criminal Law Penalties and the Burden of Proof The punishment for a crime is imprisonment or death. Sometimes a fine is added to the punishment. In the American criminal law system, it is always the government that has the burden of proof. In criminal cases, that burden of proof is beyond a reasonable doubt that the defendant did commit the criminal act.  Tort Penalties and the Burden of Proof The remedy in tort actions is a payment of money to the victim, an order to stop doing something, or an order to do something. A plaintiff in a civil case need only prove his or her case by a preponderance of the evidence.

7. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Types of Crimes Crimes are classified as summary offense, misdemeanors, and felonies.  Summary offenses are minor violations.  Misdemeanors are more serious crimes. A defendant convicted of a misdemeanor offense may serve a prison term, generally less than one year.  Felonies are the most serious crimes. Felonies are punishable by long prison sentences of death.

8. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The American Judicial System  The Federal System The American government is a federal system The Constitution establishes three branches of government. These three are the legislative, the executive, and the judicial.  The judicial branch is headed by the U.S. Supreme Court. The Supreme Court has the last say on the constitutionality of laws. Its decisions establish the law of the land.

9. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The Federal Judiciary In addition to the Supreme Court, there are U.S. District Courts and U.S. Courts of Appeals. Federal courts try cases when federal laws have been broken and in other areas where the federal government has been given exclusive jurisdiction. Federal Courts also have concurrent jurisdiction with state courts over some matters. The federal system is organized into Federal Circuits.  There are thirteen Federal Circuits. Each Circuit has one U.S. Court of Appeals.

10. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Within each Circuit, the District Court must abide by stare decisis and rely on precedents if any are available.  The Circuit Courts of Appeals must follow the rulings of the U.S. Supreme Court.  The Supremacy Clause of the Constitution establishes it as the supreme law of the land.  The Commerce Clause: The Constitution gives the federal government jurisdiction over matters of interstate commerce.  Police Power A state’s police power allows it to regulate the health, safety, morals, and the general welfare of its citizens.

11. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Investigations, Arrest, and Pretrial Sometimes an arrest is made only after a long investigation. In that case, the arrest is usually carried out by the use of an arrest warrant. Armed with a signed arrest warrant, police officers can arrest the defendant and bring him or her to a central processing center. If the police officers haven’t already done so, they will now read the defendant the Miranda warning. In most jurisdictions the defendant will be brought before a magistrate soon after arrest. This is generally referred to as the preliminary arraignment. The next legal proceeding the defendant will face is the preliminary hearing. For the defense, the preliminary hearing may be a good opportunity to look at the evidence the state has against a client.

12. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The evidentiary standard the government needs to meet at the preliminary hearing is simply that there is probable cause. Even after the preliminary hearing, the government must either convince a grand jury that the defendant committed a crime or it must persuade the prosecutor of the same. In many jurisdictions, the decision to formally charge a defendant with a crime is left to the district attorney or state attorney. He or she has the authority to file an information, which formally charges the defendant with a crime.

13. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Plea bargaining is the practice of negotiating with a defendant and his attorney concerning the terms of a guilty plea. If the jurisdiction uses a grand jury to commence criminal trials, the charging document is referred to as an indictment. After the defendant is formally charged by indictment, he or she is then formally arraigned. At arraignment, the formal charges are read to the defendant and he or she must enter a formal response to the charges or a plea.

14. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Trial As a practical matter, most criminal cases never make it to trial. Most cases are disposed of by guilty pleas through plea bargaining. Defendants who want a trial may select either trial by judge or trial by jury. If the defendant chooses a jury trial, he or she may assist in the selection of jurors from the jury pool. The process of selecting jurors starts with voir dire, which involves asking potential jurors questions. Both the prosecution and the defense help choose the jurors. Either side may challenge the selection of a juror. Attorneys can also reject potential jurors using a preemptory challenge. After a jury has been selected, it’s time for the prosecution and the defense to address that jury through opening statements.

15. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 After opening, the government presents its witnesses for direct examination and the defense cross-examines them. Either party may then ask questions again by redirect exam and recross exam. At the end of the prosecution’s case, the government rests. If the defense does present evidence or witnesses, the prosecution has a chance to cross-examine them. If the defense does have witnesses testify, the prosecution may present rebuttal evidence to disprove the evidence. Finally, the attorneys present closing arguments. The jury then retires to the jury room.

16. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The jury can judge the defendant guilty or not guilty. Its decision is the verdict. After a verdict, the court will enter the judgment. The defendant may be sentenced immediately or after pre-sentence investigation and recommendations.  Appeal Every defendant is entitled to an appeal. Only the defendant may appeal. The defendant’s appeal may attack any defect in the trial or evidence.

17. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Serving the Sentence Once direct appeals are over, the defendant will have to start his sentence. Most defendants will serve a minimum sentence. Parole boards generally consider when the defendant may be released. Defendants may also ask the parole board or the governor (or president) for a pardon under limited circumstances.

18. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Sources of Law The supreme law of the land are the Constitution and the laws Congress passes. Treaties with foreign governments have the force of law. The most common way treaties affect criminal law is through the power of extradition. Codified laws are laws passed by either a federal or state legislature. Regulations are written by administrative agencies. Regulations that are consistent with the law under which they are promulgated, and are also law.