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A
crime is any behavior
that is punishable by imprisonment or fine (or both). State legislatures
have an almost unlimited ability to decide which behaviors are
considered crimes, and often their decisions do more than simply define
socially unacceptable behaviors--they also reflect the values and
judgments of the legislators. For example, most state legislatures
define welfare fraud as a crime, and welfare recipients who cheat can
end up in jail. On the other hand, no state legislature defines
deliberate overcharging by an attorney or other professional as a crime.
While state legislatures have broad powers to
decide what constitutes crime, Congress can define behavior as a crime
only if the U.S. Constitution authorizes Congress to regulate that type
of behavior in the first place. For example, the Constitution gives
Congress the power to "regulate commerce . . . among the several
States." Congress, therefore, can make many activities--such as
racketeering-illegal, if the actions cross state lines or affect
commerce that does.
Who decides how the criminal justice system
works?
Though legislators have relatively unfettered
power to decide whether a certain behavior should be a crime, many rules
limit the ways in which the state or federal government can prosecute
someone for a crime. These restrictions start with the U.S.
Constitution's Bill of Rights, which provides basic protections-such as
the right to refuse to testify against oneself, the right to confront
one's accusers and the right to a trial by jury-for people charged with
crimes. State constitutions may increase (but not take away from) the
federal protections. Federal and state legislatures can pass laws
governing how criminal procedures work in their jurisdictions, but these
laws cannot reduce the protections offered by the federal and state
constitutions.
The interplay between constitutional provisions
and legislative enactments is regulated by our courts. Courts decide
whether or not a particular legislative rule, court practice or police
action is permissible under federal and state constitutional law. What
may seem like a slight variation from one case to another can be, in the
eyes of a court, the determining factor that leads to a vastly different
result. For example, a police officer is frisking a suspect on the
street and feels a hard object in the suspect's pocket. Suspecting that
the object is a possible weapon, the officer reaches into the pocket and
finds both a cardboard cigarette box and a packet of heroin. This action
by the police officer--reaching into the pocket--would be deemed a
permissible search under the rulings of most courts (to protect the
officer's safety), and the heroin could be admitted into court as
evidence. However, if the object felt by the officer was soft and
obviously not a weapon, then reaching into the suspect's pocket might be
deemed an illegal search, in which case the heroin couldn't be used as
evidence.
What's the difference between a felony and a
misdemeanor?
Most states break their crimes into two major
groups-felonies and misdemeanors. Whether a crime falls into one
category or the other depends on the potential punishment. If a law
provides for imprisonment for longer than a year, it is usually
considered a felony. If the potential punishment is for a year or less,
then the crime is considered a misdemeanor. In some states, certain
crimes, called "wobblers," may be considered either a
misdemeanor or a felony, because under some conditions the punishment
may be imprisonment for less than a year, and in other situations, the
criminal may go to prison for a year or more.
Behaviors punishable only by fine are usually
not considered crimes at all, but infractions-for example, traffic
tickets. But a legislature may on occasion punish behavior only by fine
and still provide that it is a misdemeanor--such as possession of less
than an ounce of marijuana for personal use in California.
How can I tell from reading a criminal statute
whether I'm guilty of the crime it defines?
All criminal statutes define crimes in terms of
required acts and a required state of mind, usually described as the
actor's "intent." These requirements are known as the
"elements" of the offense. A prosecutor must convince a judge
or jury that the person charged with the crime (the defendant) did the
acts and had the intent described in the statute. For example,
commercial burglary is commonly defined as entering a structure (such as
a store) belonging to another person, with the intent to commit petty or
grand theft (that is, to steal) or any felony.
To convict a person of this offense, the
prosecutor would have to prove three elements:
- The defendant entered the structure.
- The structure belonged to another person.
- At the time the defendant entered the
structure, he intended to commit petty or grand theft or any felony.
You will have to do the same when you read the
law. Parse the crime into its required elements to see if each applies
in your situation.
What is the "presumption of
innocence?"
All people accused of a crime are legally presumed
to be innocent until they are convicted, either in a trial or as a
result of pleading guilty. This presumption means not only that the
prosecutor must convince the jury of the defendant's guilt, but also
that the defendant need not say or do anything in his own defense. If
the prosecutor can't convince the jury that the defendant is guilty, the
defendant goes free.
The presumption of innocence, coupled with the
fact that the prosecutor must prove the defendant's guilt beyond a
reasonable doubt (see below), makes it difficult for the government to
put people behind bars.
What does it mean to prove guilt "beyond
a reasonable doubt?"
The prosecutor must convince the judge or jury
hearing the case that the defendant is guilty "beyond a reasonable
doubt." This standard is very hard to meet. (By contrast, in
non-criminal cases, such as an accident or breach of contract, a
plaintiff has to prove her case only by a preponderance of the
evidence--just over 50%.) As a practical matter, the high burden of
proof in criminal cases means that judges and jurors are supposed to
resolve all doubts about the meaning of the evidence in favor of the
defendant. With such a high standard imposed on the prosecutor, a
defendant's most common defense is often to argue that there is
reasonable doubt-that is, that the prosecutor hasn't done a sufficient
job of proving that the defendant is guilty.
If I'm accused of a crime, am I guaranteed a
trial by a jury?
Yes. The U.S. Constitution gives a person accused
of a crime the right to be tried by a jury. This right has long been
interpreted to mean a 12-person jury that must arrive at a unanimous
decision to convict or acquit. (In most states, a lack of unanimity is
called a "hung jury" and the defendant will go free unless the
prosecutor decides to retry the case. In Oregon and Louisiana, however,
juries may convict or acquit on a vote of ten to two.) The potential
jurors must be selected randomly from the community, and the actual jury
must be selected by a process which allows the judge and lawyers to
screen out biased jurors. In addition, a lawyer may eliminate several
potential jurors simply because he feels that these people would not be
sympathetic to his side-but these decisions may not be based on the
juror's personal characteristics, such as race, sex, religion or
national origin.
Can a jury acquit me even if I broke the law?
The jury has the ultimate power to decide whether
a person is guilty of a crime. As the "conscience of the
community," jurors can free a defendant even if they think the
defendant actually committed the crime charged. The name for this power
is "jury nullification." It has always been a part of our
judicial system.
When jurors nullify a law by acquitting a
defendant who has obviously broken that law, judges and prosecutors can
do nothing about it. A jury's not guilty verdict is final. Jury
nullification rarely occurs, but when it does, it most often involves
cases that have a political component (such as the refusal to convict
draft dodgers during the Vietnam War) or that have harsh punishments the
jury does not want to impose on that particular defendant.
If I do not have any witnesses who will
testify on my behalf, can I still win at trial?
Yes. Defendants often go to trial without having
anyone testify for them. This strategy allows the defendant's lawyer to
focus on cross-examining the prosecution witnesses in order to poke
holes in the prosecutor's case--thereby creating reasonable doubt.
Defense attorneys rely on a variety of arguments to discredit the
prosecutor's witnesses. Some common arguments include:
- Prosecution witnesses are biased against the
defendant and therefore are lying or grossly exaggerating.
- Prosecution witnesses are mistaken in their
observations because the lighting was bad, they were under the
influence of drugs or alcohol or they were too far away.
- Evidence from police laboratories is
unreliable because the machines were not properly maintained or the
technicians were not properly trained.
- Prosecution witnesses are lying to get a
good deal on the criminal charges they themselves are facing
(witnesses are often criminals who have been offered a deal if they
testify against the defendant).
What these arguments have in common is that
they do not depend on defense evidence. Rather, they rely on the
presumption of innocence and prosecutor's failure to overcome it by
proving guilt beyond a reasonable doubt.
I am confused about why a defendant would
choose to not testify. If I were innocent, why wouldn't I want to take
the stand and tell my story?
A criminal defendant has a right not to testify,
and jurors will be told that they cannot assume anything negative if the
defendant decides to keep quiet. Of course, some jurors do make
assumptions-and they cast their votes accordingly. On the other hand,
there are some excellent reasons why a defendant might remain silent in
court:
- If the defendant has previously been
convicted of a crime, the prosecutor may be able to bring this fact
out-but only if the defendant testifies. Evidence of a previous
crime may cause some jurors to think that the defendant is guilty of
the current crime, too.
- If the defendant testifies, the prosecutor
may be able to bring out other information that tarnishes the
defendant's reputation and discredits his testimony.
- Some defendants have a poor demeanor when
speaking in public. A judge or jury may not believe a defendant who,
though telling the truth, is a nervous witness and makes a bad
impression.
- The defendant may have a perfectly good
story which would nevertheless sound fishy to the average jury in
that particular locale.
What is self-defense--and how can a defendant
prove it?
Self-defense is a common defense asserted by
someone charged with a crime of violence, such as battery (striking
someone), assault with a deadly weapon or murder. The defendant admits
that she did in fact commit the crime, but claims that it was justified
by the other person's threatening actions. The core issues in most
self-defense cases are:
- Who was the aggressor?
- Was the defendant's belief that self-defense
was necessary a reasonable one?
- If so, was the force used by the defendant
also reasonable?
Self-defense is rooted in the belief that
people should be allowed to protect themselves from physical harm. This
means that a person does not have to wait until she is actually struck
to act in self-defense. If a reasonable person would think that she is
about to be physically attacked, she has the right to strike first and
prevent the attack. But she cannot use more force than is reasonable-if
she does, she may be guilty of a crime.
When can a defendant win an acquittal on
grounds of insanity?
The insanity defense is based on the principle
that punishment is justified only if the defendant is capable of
controlling his or her behavior and understanding that what he or she
has done is wrong. Because some people suffering from a mental disorder
are not capable of knowing or choosing right from wrong, the insanity
defense prevents them from being criminally punished.
Despite its ancient origins (England, 1505),
the insanity defense remains controversial. Victim-oriented critics
point out that a person killed by an insane person is just as dead as a
person killed by someone who is sane, and argue that people should be
punished for the harm they cause regardless of their mental state.
Critics also question the ability of psychiatrists, judges and jurors to
determine whether a person suffers from a mental disorder, and to link
mental disorders to the commission of crimes.
The insanity defense is an extremely complex
topic; many scholarly works are devoted entirely to explaining its
nuances. Here are some major points of interest:
- Despite popular perceptions to the contrary,
defendants rarely enter pleas of "not guilty by reason of
insanity." On the few occasions that the defendant does raise
it, judges and jurors rarely support it.
- Because neither the legal system nor
psychiatrists can agree on a single meaning of insanity in the
criminal law context, various definitions are employed. The most
popular definition is the "McNaghten rule," which defines
insanity as "the inability to distinguish right from
wrong." Another common test is known as "irresistible
impulse": A person who acts out of an irresistible impulse
knows that an act is wrong, but because of mental illness, cannot
control his actions.
- Defendants found not guilty by reason of
insanity are not automatically set free. They are usually confined
to a mental institution, and not released until their sanity is
established. These defendants can spend more time in a mental
institution than they would have spent in prison had they been
convicted.
- An insanity defense normally rests on the
testimony of a psychiatrist, who testifies for the defendant after
examining him and his past history, and the facts of the case.
Courts appoint psychiatrists at government expense to assist poor
defendants who cannot afford to hire their own psychiatrists.
What happens
if a defendant is judged "incompetent to stand trial?"
Aside from insanity as a defense to criminal
charges, the question may arise as to whether a defendant is mentally
capable of facing a trial. Defendants cannot be prosecuted if they
suffer from a mental disorder that prevents them from understanding the
proceedings and assisting in the preparation of their defense. Based on
a defendant's unusual behavior, a judge, prosecutor or defense attorney
may ask that trial be delayed until the defendant has been examined and
her ability to understand the proceedings has been determined in a court
hearing. If a judge finds that a defendant doesn't understand what's
going on, the defendant will probably be placed in a mental institution
until her competence is re-established. At that time, the trial will be
held.
Can a defendant go free because he was drunk
or high on drugs when he committed a crime?
Defendants who commit crimes under the influence
of drugs or alcohol sometimes argue that their mental functioning was so
impaired that they cannot be held accountable for their actions.
Generally, however, voluntary intoxication does not excuse criminal
conduct. People know (or should know) that alcohol and drugs affect
mental functioning, and thus they should be held legally responsible if
they commit crimes as a result of their voluntary use.
Some states allow an exception to this general
rule. If the defendant is accused of committing a crime that requires
what's known as "specific intent" (intending the precise
consequences, as well as intending to do the physical act that leads up
to the consequences), the defendant can argue that he was too drunk or
high to have formed that intent. This is only a partial defense,
however, because it doesn't entirely excuse the defendant's actions. In
this situation, the defendant will usually be convicted of another crime
that doesn't require proof of a specific intent-for example, assault
with a deadly weapon instead of assault with the intent to commit
murder.
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