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Criminal Law and Procedure
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CRIMINAL LAW
PROCEDURE
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DANIEL E. HALL, J.D., Ed.D.
CRIMINAL LAW
PROCEDURE
AND
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Criminal Law and Procedure,
Sixth Edition
Daniel E. Hall, J.D., Ed.D.
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following the instructions contained herein, the reader willingly assumes all risks in connection with such instructions. The reader is notifi ed that this text is an educational
tool, not a practice book. Since the law is in constant change, no rule or statement of law in this book should be relied upon for any service to any client. The reader should
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CONTENTS
PREFACE X
ACKNOWLEDGMENTS XV
ABOUT THE AUTHOR XVI
TABLE OF CASES XVII
PART I
Criminal Law
Chapter 1
INTRODUCTION TO THE LEGAL SYSTEM
OF THE UNITED STATES . . . . . . . . . . . . . . 3
Federalism 4
Separation of Powers 8
The Structure of the Court System 10
Duties and Powers of the Judicial Branch 15
Comparing Civil Law and Criminal Law 17
The Authority of Government to Regulate
Behavior 22
The Purposes of Punishing Criminal Law
Violators 25
Specific and General Deterrence 25
Incapacitation 26
Rehabilitation 26
Retribution 26
Web Links 28
Key Terms 29
Review Questions 29
Problems & Critical Thinking Exercises 29
Endnotes 30
Chapter 2
INTRODUCTION TO CRIMINAL LAW. . . . . . 32
The Distinction between Criminal Law
and Criminal Procedure 33
Sources of Criminal Law 33
The Common Law 34
Statutory Law 41
Ordinances 42
Administrative Law 42
Court Rules 47
The Model Penal Code 47
Constitutional Law 48
Web Links 51
Key Terms 51
Review Questions 52
Problems & Critical Thinking Exercises 52
Endnotes 53
Chapter 3
THE TWO ESSENTIAL ELEMENTS. . . . . . . . 54
Mens Rea 55
Mens Rea and the Common Law 55
Strict Liability 61
Vicarious Liability 65
Current Approaches to Mens Rea 67
Proving Mens Rea 69
Motive 70
Actus Reus 72
Voluntariness 72
Thoughts and Statements as Acts 73
Personal Status as an Act 74
v
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vi Contents Contents
Possession as an Act 75
Omissions as Acts 75
Causation 78
Web Links 85
Key Terms 86
Review Questions 86
Problems & Critical Thinking Exercises 86
Endnotes 88
Chapter 4
CRIMES AGAINST THE PERSON . . . . . . . . 90
Studying Crimes 91
Homicide 91
Homicide and the Common Law 93
Statutory Approaches to Homicide 97
Manslaughter 103
The Model Penal Code Approach to
Homicide 107
Life, Death, and Homicide 108
Suicide 109
Corpus Delicti 110
Assault and Battery 111
Aggravated Assault and Battery 112
Mayhem 113
Sex Crimes 113
Rape 113
Nonforcible Rape 115
Sodomy 116
Rape Shield Laws 116
Incest 117
Sex Offenses Against Children 117
Megan’s Laws, Commitment, and
Castration 119
Kidnapping and False Imprisonment 120
Kidnapping 120
Parental Kidnapping 122
False Imprisonment 123
Stalking 123
Civil Rights and Hate Crimes 124
Web Links 128
Key Terms 128
Review Questions 129
Problems & Critical Thinking Exercises 129
Endnotes 130
Chapter 5
CRIMES AGAINST PROPERTY AND
HABITATION . . . . . . . . . . . . . . . . . . . 132
Arson 133
Burglary 134
Theft Crimes 137
Introduction to Theft Crimes 137
Larceny 138
Embezzlement 140
False Pretenses 141
Receiving Stolen Property 144
Robbery 145
Extortion 147
Consolidated Theft Statutes 148
Identity Theft 149
The Model Penal Code Consolidation 152
Destruction of Property 153
Computer Crimes 154
Web Links 160
Key Terms 160
Review Questions 160
Problems & Critical Thinking Exercises 161
Endnotes 162
Chapter 6
CRIMES AGAINST THE PUBLIC . . . . . . . . 163
Defining a “Crime Against the Public” 164
Crimes Against Public Morality 165
Prostitution and Solicitation 165
Deviate Sexual Conduct 165
Indecent Exposure and Lewdness 170
Obscenity 171
Regulating the Internet 176
Crimes Against the Public Order 182
Riot and Unlawful Assembly 182
Disturbing the Peace 182
Incitement/Advocacy of Unlawful
Conduct 185
Threats 185
Vagrancy and Panhandling 187
Crimes Involving Firearms 188
Drug and Alcohol Crimes 192
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Contents Contents vii
Government 198
Perjury 198
Bribery 200
Tax Crimes 201
Obstruction of Justice 203
Contempt 204
Crimes Against Sovereignty and Security 206
Treason 206
Sedition and Espionage 206
Terrorism 207
Crimes Against the Environment 222
Clean Water Act 224
Clean Air Act 224
Comprehensive Environmental Response,
Compensation, and Liability Act 225
Resource Conservation and Recovery
Act 225
Occupational Safety and Health Act 225
Toxic Substances Control Act 225
Federal Insecticide, Fungicide, and
Rodenticide Act 226
Emergency Planning and Community
Right-to-Know Act 226
Endangered Species Act 226
Marine Mammal Protection Act 227
Web Links 229
Key Terms 229
Review Questions 230
Problems & Critical Thinking Exercises 230
Endnotes 231
Chapter 7
PARTIES AND INCHOATE OFFENSES . . . . 234
Parties to Crimes 235
Inchoate Crimes 236
Attempt 236
Conspiracy 242
Solicitation 243
Web Links 245
Key Terms 245
Review Questions 245
Problems & Critical Thinking
Exercises 246
Endnotes 246
Chapter 8
FACTUAL AND STATUTORY DEFENSES . . . 247
“Defense” Defined 248
Affirmative Defenses 248
Insanity 249
M’Naghten 250
Irresistible Impulse 251
Durham 251
The Model Penal Code Test 252
Guilty But Mentally Ill (GBMI) 252
Procedures of the Insanity Defense 253
Disposition of the Criminally Insane 253
Insanity at the Time of Trial 254
Duress and Necessity 256
Use-of-Force Defenses 256
Self-Defense 258
Defense of Others 259
Defense of Property and Habitation 260
Imperfect Self-Defense 261
Arrests 261
Infancy 268
Intoxication 268
Mistake 269
Entrapment 270
Alibi and Consent 271
Statutes of Limitation 271
Web Links 274
Key Terms 274
Review Questions 274
Problems & Critical Thinking Exercises 275
Endnotes 275
Chapter 9
CONSTITUTIONAL DEFENSES . . . . . . . . 277
Introduction 278
Double Jeopardy 278
Self-Incrimination and Immunity 281
Due Process and Equal Protection 283
Vagueness and Overbreadth 284
Ex Post Facto and Bills of Attainder 285
First Amendment and Religion 285
First Amendment and Speech 294
Privacy and Other Unenumerated Rights 302
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viii Contents Contents
Web Links 308
Key Terms 309
Review Questions 309
Problems & Critical Thinking Exercises 309
Endnotes 310
PART II
Criminal Procedure
Chapter 10
INTRODUCTION AND PARTICIPANTS . . . . 313
Criminal Procedure Defined 314
A Common-law, Adversarial, and Accusatorial
System 314
The Due Process Model 316
The Participants 317
Law Enforcement Officers 317
Prosecutors 319
Judges 326
Defense Attorneys 326
Victims 330
Liability of Governments and Their Officials 332
Web Links 335
Key Terms 335
Review Questions 335
Problems & Critical Thinking Exercises 335
Endnotes 336
Chapter 11
CONSTITUTIONAL ASPECTS OF CRIMINAL
PROCEDURE . . . . . . . . . . . . . . . . . . . 338
Introduction 339
Incorporation 339
Expansion of Rights 343
Exclusionary Rule 343
Fruit of the Poisonous Tree 349
Exceptions 349
Standing 350
State Constitutions and the “New
Federalism” 351
Web Links 360
Key Terms 360
Review Questions 360
Problems & Critical Thinking Exercises 360
Endnotes 361
Chapter 12
SEARCHES, SEIZURES, AND ARRESTS . . . . 362
The Fourth Amendment 363
Privacy 363
Probable Cause 371
Searches and Seizures 377
The Warrant Requirement 377
Exceptions to the Search Warrant
Requirement 386
Arrest 413
Defining Arrest 413
The Warrant Preference 416
Arrests in Protected Areas 416
Search Incident to Arrest and the Protective
Sweep 422
Executing Arrest Warrants 424
Illegal Arrests 424
Analyzing Fourth Amendment Problems 425
Web Links 429
Key Terms 429
Review Questions 430
Problems & Critical Thinking Exercises 430
Endnotes 431
Chapter 13
INTERROGATION AND OTHER LAW
ENFORCEMENT PRACTICES . . . . . . . . . 434
Interrogations, Confessions, and
Admissions 435
McNabb-Mallory Rule 435
Miranda 436
Sixth Amendment 448
Voluntariness Requirement 448
Electronic Surveillance 449
Governing Statutes 449
Wiretaps 451
Tracking Devices 454
Stored Communications and Subscriber
Records 462
Pen Registers and Trap Devices 462
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Contents Contents ix
Pretrial Identification Procedures 468
Lineups and One-Man Showups 469
The Fairness Right 469
Photographs 471
Scientific Identification Procedures 472
Exclusion of Improper Identifications 479
Web Links 481
Key Terms 481
Review Questions 481
Problems & Critical Thinking Exercises 481
Endnotes 482
Chapter 14
THE PRETRIAL PROCESS . . . . . . . . . . . . 484
Introduction 485
Discovery and Investigation of Criminal
Activity 485
Arrest 485
The Complaint 485
Initial Appearance 486
Pretrial Release and Detention 490
Types of Release 490
Eighth Amendment 490
Detention 490
Preliminary Hearing 491
The Formal Charge 492
Indictment and Grand Jury 492
Information 500
Arraignment 500
Pretrial Activity 501
Discovery 501
Motion Practice 506
Pretrial Conference 510
Extradition and Detainers 510
Removal 512
Web Links 513
Key Terms 514
Review Questions 514
Problems & Critical Thinking Exercises 514
Endnotes 514
Chapter 15
TRIAL . . . . . . . . . . . . . . . . . . . . . . . 516
Trial Rights of Defendants 517
The Right to a Jury Trial 517
The Right to a Public Trial 518
The Right to Confrontation
and Cross-Examination 523
The Presumption of Innocence/Burden
of Proof 525
The Right to Speedy Trial 526
The Right to Counsel 528
Trial Procedure 534
Voir Dire 534
Preliminary Instructions 534
Opening Statements 535
The Prosecution’s Case in Chief 535
The Defense Case 536
Rebuttal 536
Closing Arguments 536
Final Instructions 536
Jury Deliberations and Verdict 537
JNOV/New Trial 537
Web Links 540
Key Terms 540
Review Questions 541
Problems & Critical Thinking Exercises 541
Endnotes 541
Chapter 16
SENTENCING AND APPEAL . . . . . . . . . . 543
Sentencing 544
Sentencing Procedure 544
Forms of Punishment 553
Habitual Offender Statutes 584
Postconviction Remedies 585
Appeal 585
Habeas Corpus 588
Web Links 592
Key Terms 592
Review Questions 592
Problems & Critical Thinking Exercises 593
Endnotes 593
APPENDIX A The Constitution of the United States
of America 597
APPENDIX B Selected Excerpts from the Model Penal
Code 609
APPENDIX C Briefing and Analyzing Cases 643
GLOSSARY 647
INDEX 655
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Like its five previous editions, Criminal Law and Procedure, 6th Edition, is a comprehensive text covering both substantive criminal law and criminal procedure. The
importance of constitutional law to these fields is emphasized, as are practical insights.
This book has been designed for use in undergraduate programs in both legal studies
and criminal justice.
ORGANIZATION OF THE TEXT
Because I don’t believe in fixing things that are not broken and because the reviewers
and users of this book have told me that it isn’t broken, I have retained the original
organization, content, and pedagogy in this edition. This remains a combination textbook and casebook. The cases are edited and the text written with the undergraduate
student in mind. It is my hope that the writing level of this book will challenge undergraduate students without overwhelming them.
All of the pedagogical features of the earlier editions have been retained, including
highlighted definitions, glossary of terms, table of cases, and a thorough index. The
distinction between chapter questions and chapter problems continues in this text, the
former testing content knowledge and the latter testing the students’ problem-solving
and analytical skills.
Keeping in mind the diverse audience of students and instructors who use this
text, I have designed two general methods of use. The first is as a combination text
and casebook. The second method is to omit the cases and use the text alone. Both
methods are possible because I do not use any case to exclusively teach a point of law.
Instead, the cases are used to illustrate a point in practice and to develop the cognitive
skills of students. Accordingly, if time does not permit it or the educational goals of an
instructor are focused elsewhere, the cases may be omitted without losing substantive
content.
The first half of the text covers substantive criminal law, while the second half of
the text discusses both the constitutional dimensions of criminal procedure and the
practical dimensions of the criminal justice process.
PREFACE
x
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KEY FEATURES
Ethical Considerations that expose students to ethical questions in criminal law
and general ethical principles and laws that apply to players in the criminal justice
system.
Writing Style that challenges but does not overwhelm undergraduate students.
Key Terms that are in bold on first use and clearly defined in the margin.
Cases that reinforce content and promote the development of case analysis skills.
Sidebars that can be used to spark class discussion and student interest in issues involving the criminal justice system and criminal law.
Exhibits that reinforce textual material and help illustrate important ideas.
Web Links that highlight websites that are germane to chapter materials.
Review Questions that call for content-related answers to reinforce and retain chapter
concepts.
Chapter Problems that are intended to develop critical thinking and problem-solving
skills.
CHANGES TO THE SIXTH EDITION
I have added new material and updated existing material to keep abreast of changes in
both the law and the criminal justice disciplines. The changes and additions include,
inter alia, the following:
• The information on how to brief a case, previously found in a sidebar, has been
expanded and moved into the appendices.
• Nearly a dozen new illustrations, diagrams, and summary tables have been added
in those areas of the text where a visual/summary was needed to make dense
material easier to understand. This includes a new exhibit comparing mens rea
and motive, a graphic on the breaking element of burglary, a flowchart on the
incorporation of rights analysis, a standards of proof illustration, a new table
summarizing significant Miranda cases, a trial rights diagram, a case briefing
process diagram, and several other visuals intended to make the text livelier.
• The Supreme Court’s decisions through early 2011 are covered. Several new
edited Supreme Court cases have been added and some outdated or redundant
cases have been removed. This includes the Court’s recent decisions concerning
crush videos, death penalty for child rapists, home possession of firearms, the
right to cross-examine forensic scientists who perform tests, ineffective assistance
of counsel, and as always, automobile searches.
• A few subchapters have been moved to locations of a better content fit.
• All the data, including crime, courts, and law enforcement, has been updated.
• A note about case excerpts: To this author, there are three objectives of including
judicial opinions in a textbook. The first is doctrinal: to teach the law.
Preface Preface xi
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xii Preface Preface
The second is purely cognitive: to develop a reader’s analytical, and more specifically, legal reasoning skills. The third is to develop the reader’s familiarity with
the language and structure of legal writing. I consider all of these purposes when
selecting cases, knowing that not every case will accomplish all three objectives.
In addition, the importance and impact of a case, its age, the clarity of its language, and my ability to successfully edit it are considered. I have taken some
liberties in my editing. Because ellipses can be distracting to the reader, many
citations and footnotes were redacted without any indication in the text. The
reader is advised to consult the appropriate official reporter for the complete text.
• Please share any ideas you have for improvement of this book with either the
publisher or me. I may be reached at [email protected].
ANCILLARY MATERIALS
SUPPLEMENTAL TEACHING AND LEARNING MATERIALS
Paralegal CourseMate
Criminal Law and Procedure, Sixth Edition, includes Paralegal CourseMate, a complement to your textbook. Paralegal CourseMate includes:
• an interactive eBook, with highlighting, notetaking, and search capabilities
• interactive teaching and learning tools, including:
• Quizzing
• Case studies
• Chapter objectives
• Flashcards
• Web links
• Crossword puzzles
• PowerPoint® presentations
• And more!
• Engagement Tracker, a first-of-its-kind tool that monitors student engagement in
the course
Go to login.cengagebrain.com to access these resources, and look for this icon which
denotes a resource available within CourseMate.
Online Instructor’s Manual
The Instructor’s Manual has been revised to incorporate changes in the text and to
provide comprehensive teaching support. The Instructor’s Manual contains the
following:
• Answers to exercises in the text
• Test Bank and answer key
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Preface Preface xiii
Instructor Resources
Spend less time planning and more time teaching. With Delmar Cengage Learning’s
Instructor Resources to Accompany Criminal Law and Procedure, preparing for class
and evaluating students have never been easier!
This invaluable instructor CD-ROM allows you “anywhere, anytime” access to all
of your resources.
• The Instructor’s Manual contains various resources for each chapter of the book.
• The Computerized Test Bank in ExamView makes generating tests and quizzes
a snap. With many questions and different styles to choose from, you can create
customized assessments for your students with the click of a button. Add your
own unique questions and print rationales for easy class preparation.
• Customizable PowerPoint® Presentations focus on key points for each chapter.
(PowerPoint® is a registered trademark of the Microsoft Corporation.)
To access additional course materials (including CourseMate), please go to login.
cengage.com, then use your SSO (single sign on) login to access the materials. All
of these instructor materials are also posted on our Web site (http://www.paralegal.
delmar.cengage.com/) in the Online Resources section.
WebTutor™
The WebTutor™ supplement allows you, as the instructor, to take learning beyond
the classroom. This online courseware is designed to complement the text and benefit students and instructors alike by helping to better manage your time, prepare for
exams, organize your notes, and more. WebTutor™ allows you to extend your reach
beyond the classroom.
WebPage
Come visit our Web site at http://www.paralegal.delmar.cengage.com/, where you will
find valuable information such as hot links and sample materials to download, as well
as other Delmar Cengage Learning products.
Please note the Internet resources are of a time-sensitive nature and URL addresses
may often change or be deleted. Contact us at [email protected]
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.