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Chapter 1 Law, Crime, Courts, and Controversy

LEARNING OBJECTIVESAfter reading this chapter, students should be able to:

1. Describe how the courts are related to the other components of the criminal justice system.

2. Discuss the major types of courts found in the United States.3. Identify the most important actors in the courthouse.4. List the steps in a typical felony prosecution.5. List the four key elements defining law.6. Identify the three key characteristics of common law.7. Explain the importance of the adversary system.8. Name the four amendments of the Bill of Rights that deal specifically with

criminal procedure.9. Identify the major elements of a crime.10. Identify some of the most important legal defenses in American law.11. Explain how a “law in action” perspective complements a “law on the books”

approach to studying the criminal courts.12. Distinguish between the crime control model of criminal justice and the due

process model of criminal justice.

LESSON PLANCorrelated to PowerPoints

I. COURTS AND CRIME A. Murder and nonnegligent homicide cases account for less than 1/10 of

1 percent of all criminal arrests (Federal Bureau of Investigation, 2015).B. Jurors expect sophisticated forensic evidence in all cases, which some call

the CSI effect.

II. COURTS AND THE CRIMINAL JUSTICE SYSTEM Learning Objective 1: Describe how the courts are related to the other components of the criminal justice system.

A. Fighting crime is a major societal activity. B. Every year governments spend approximately $265.16 billion on the criminal

and civil justice system in the United States (Bureau of Justice Statistics, 2015).

C. These tax dollars support an enormous assortment of criminal justice agencies with a large number of employees. These government officials are quite busy.

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D. A substantial number of people are also employed in the private sector in positions related to dealing with crime (Hakim, Rengert, & Shachmurove, 1996; Police Executive Research Forum, 2014; Ribovich & Martino, 2007).

E. The public agencies involved in implementing crime policy, i.e., police, courts, and corrections, are referred to as the criminal justice system.

F. The major components of the criminal justice system do not make up a smoothly functioning and internally consistent organization.

G. he criminal justice system is both interdependent and fragmented.H. An Interdependent Criminal Justice System

i. Viewing the various components of criminal justice as a total system highlights the fact that these different agencies are interdependent and interrelated.

ii. The courts play a pivotal role within the criminal justice system. Many formal actions pertaining to suspects, defendants, and convicts involve the courts, and the decisions that the courts make have important consequences for other components of the criminal justice system.

iii. The operations of law enforcement and corrections also have a major impact on the judiciary.

iv. The system approach dominates most contemporary thinking about criminal justice.

I. A Fragmented Criminal Justice Nonsystemi. Not everyone is convinced of the utility of this approach. Some people

point to a non-system of criminal justice. ii. What is most salient in the non-system is that each component of the

criminal justice system is fragmented. iii. The fragmentation within the three components of the non-system of

criminal justice is further complicated by the decentralization of government.

J. Tensions and Conflictsi. Criminal justice is best viewed as both a system and a non-system.

ii. Both interdependence and fragmentation characterize the relationships among the different agencies involved in apprehending, convicting, and punishing wrongdoers.

iii. These structural arrangements produce tension and conflict within each component.

iv. Tension and conflict also occur due to the sometimes conflicting goals of the various components of the criminal justice system.

Class Discussion/Activity 1Which term “interdependent” or “fragmented nonsystem” better describes the criminal justice system?

Class Discussion/Activity 2Place students in three groups and assign each group a part of the justice system: the police, the courts, and corrections. Have each group debate why their function is the most important. You can also use a specific case as a reference point.


What If ScenarioWhat if the U.S. Supreme Court held that plea bargaining was unconstitutional? How would this affect criminal law? Courts?

See Assignments 2 and 6

III. AN OVERVIEW OF U.S. COURTS Learning Objective 2: Discuss the major types of courts found in the United States.

A. By rough count there are approximately 17,000 courts operating in the United States.

B. Courts are governmental organizations created to hear specific types of cases. C. Courts in the United States function in a separate or dual court system

meaning that there are federal and state courts.D. There are many different types of courts on both the state and federal level,

each serving a different function. i. Most courts are trial courts, which can be divided into major and lower.

ii. There are also appeals courts, which review decisions made by trial courts. 1. Appellate courts are places where lawyers argue whether the previous

decision correctly or incorrectly followed the law. 2. Given the growing volume of cases, the federal government and most

states have created two levels of appellate courts: intermediate courts, which must hear all appeals, and supreme courts, which pick and choose the cases they hear.

iii. Although the U.S. Supreme Court stands atop the organizational ladder, it measured not in terms of the number of cases decided, but in the wide-ranging impact these few decisions have on all stages of the process.

What If ScenarioWhat if you were given total authority to reform the American court systems; what would you reform, and why?


IV. IDENTIFYING THE ACTORS IN THE COURTHOUSE Learning Objective 3: Identify the most important actors in the courthouse.

A. Prosecutorsi. The most influential person in the courtroom. They decide which cases to

try, can offer plea-bargains, and carry some influence over bail and sentencing.

B. Defense Attorneys


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i. They can be private attorneys or publicly appointed (if the defendant cannot afford an attorney).

C. Judgesi. They are elected at the local and state level; the President chooses Federal

Judges. They set bail, instruct jurors, impose sentencing or dismiss cases, and respond to prosecutors and defense attorneys.

D. Defendants and Victimsi. The defendant is is the person accused of the crime. The majority of

defendants are poor, young, uneducated males. Victims testify, increase demands for bail, influence guilty pleas and sentencing, and can argue for prison/jail release.

Class Discussion/Activity 3Describe the roles of each of the main actors in the courthouse. Which do you believe play the most significant role? In what ways did these actors play a part in the George Zimmerman and Dylann Roof cases?

What If ScenarioWhat if you were a jury member in a rape case in which a poor, young, black man had been accused of raping the daughter of one of the wealthiest and most-connected white businessmen in the county. The evidence presented by the prosecutor, in your assessment, failed to prove the defendant’s guilt beyond a reasonable doubt, yet the other 11 members of the jury voted to convict. What would you do with mounting pressures from your fellow jurors for you to join in their decision to convict someone whom you believed to be a totally innocent man?


V. AN OVERVIEW OF CRIMINAL JUDICIAL PROCESSES Learning Objective 4: List the steps in a typical felony prosecution.

A. The amount of crime in the United States is difficult to quantify precisely. We know that it is high in comparison to other industrialized nations. Many crimes are never reported and therefore never make the official statistics. Most crimes involve burglary and theft.

B. Legally, crimes fall into three categories: felonies (in most states punishable by one year or more in prison); misdemeanors (typically punishable by up to a one-year sentence in a local jail); and violations (subject to fine or a short jail term).

C. There are a number of steps that occur in the criminal justice as seen below.D. Arrest

i. Every year the police make more than 12 million arrests for non-traffic offenses.

ii. Most are for minor crimes, but nearly 2.17 million involve serious crimes such as murder, rape, assault, robbery, burglary, and theft.

E. Initial Appearance


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i. An arrested person must be brought before a judge without unnecessary delay.

F. Baili. The most important event that occurs during the initial appearance is the

setting of bail. ii. While most defendants have the right to post bail, this legal right is tied

to the defendant’s economic status.G. Grand Jury

i. The grand jury is designed as a check on unwarranted prosecutions. ii. In reality, grand juries are dominated by the prosecutor and generally

indict whomever the prosecutor wants indicted. H. Preliminary Hearing

i. Like grand jury proceedings, preliminary hearings provide a check against unwarranted prosecutions. During a preliminary hearing the prosecutor must prove to a judge that a crime was committed and there is probable cause to believe the defendant committed the crime.

I. Arraignmenti. Although the two terms are often used interchangeably, an arraignment

differs from an initial appearance.J. Discovery

i. The term discovery refers to the exchange of information prior to trial.K. Pretrial Motions

i. Motions are simply requests for a judge to make a decision. ii. The most significant pretrial motions are motions to suppress physical

evidence that contend that police conducted an illegal search and seizure. L. Plea Negotiations

i. Most findings of guilt result not from a verdict at trial but from a voluntary plea by the defendant.

ii. Ninety percent of all felony convictions are the product of negotiations between the prosecutor and the defense attorney.

M. Triali. Trial by jury is one of the most fundamental rights granted to those

accused of violating the criminal law. ii. A defendant can be tried either by a judge alone or a jury.

N. Sentencingi. Most of the steps of the criminal process are concerned with determining

innocence or guilt. Defendants are often more concerned about how many years they will have to spend in prison than about the question of guilt.

ii. The principal decision the judge must make is whether to impose a prison sentence or place the defendant on probation.

iii. Prison overcrowding has become a significant consideration in contemporary sentencing.

O. Appeali. Virtually all defendants found guilty during trial file an appeal with a

higher court in the hope that they will receive a new trial.


ii. Contrary to public perception defendants are rarely successful on appeal.

Class Discussion/Activity 4What are the steps in a typical felony prosecution? How does discretion play a part in each of these steps?

Media ToolCasey Anthony Juror: “Sick to Our Stomachs” Over Not Guilty Verdicthttp://abcnews.go.com/US/casey_anthony_trial/casey-anthony-juror-jury-sick-stomach-guilty-verdict/story?id=14005609#.T-DyzfWuWSoo A juror in that case spoke on how she and her fellow jurors felt sick to their

stomach after voting to acquit Casey Anthony of charges that she killed her 2-year-old daughter Caylee even though they felt strongly that she was indeed guilty of the crime. but the jurors were unable to arrive at a guilty verdict because the prosecution failed to prove Casey’s guilt beyond a reasonable doubt—the cornerstone of the American judicial philosophy.

o Activity: Write a one-page reaction paper on whether or not you agree with the jury’s decision in this case. If not, why not?

See Assignment 3

VI. THE BASIS OF LAW Learning Objective 5: List the four key elements defining law.

A. The basis of law can be summarized in two words: human conflict. Business and everyday activities depend on mechanisms for mediating inevitable human conflicts.

B. suggests, “It is a word of many meanings, as slippery as glass, as elusive as a soap bubble.”

C. Most scholars define law as a body of rules enacted by public officials in a legitimate manner and backed by the force of the state (Neubauer & Meinhold, 2017). i. The first element is self-evident.

ii. The second element is of critical importance. All organizations of any size or complexity have rules and regulations that govern their members.

iii. The third element means that it must be agreed upon ahead of time how the rules will be changed.

iv. The final element says that these rules and regulations would be largely meaningless without sanctions.

What If ScenarioWhat if you were a jury member in a case in which a 25-year-old professional wrestler is charged with second-degree murder for shooting and killing a 15-year-old boy who walked in to his home through the open front door at 2:00 p.m. The boy


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http://abcnews.go.com/US/casey_anthony_trial/casey-anthony-juror-jury-sick-stomach-guilty-verdict/story?id=14005609#.T-DyzfWuWSo

http://abcnews.go.com/US/casey_anthony_trial/casey-anthony-juror-jury-sick-stomach-guilty-verdict/story?id=14005609#.T-DyzfWuWSo

lived with his parents in the neighborhood and was believed to have suffered from memory loss following an automobile accident three years earlier. The defendant claimed that under the law of the state, he had a right to defend his home against an intruder. Look up the law on defense of habitation in your state, and assess whether you would find the defendant’s claim reasonable and thus excusing him from a guilty verdict.

VII. THE COMMON LAW HERITAGE Learning Objective 6: Identify the three key characteristics of common law.

A. The legal system of the United States, and other English-speaking nations which were once British colonies, trace their origins back to England and its so-called common law.

B. The common law first appeared in medieval England after the Norman A distinct body of national law began to develop during the reign of Henry II (1154–1189), who successfully expanded the jurisdiction of the royal courts. Thus, the term common law meant general law as opposed to special law; it was the law common to the entire land.

C. Common law is used in many English-speaking nations, including England, Australia, New Zealand, Canada, and the United States.

D. During the development of the common law legal system, a distinctive way of interpreting the law gradually emerged. Three key characteristics of this common law heritage stand out: the law was judge-made, based on precedent, and found in multiple sources.

E. Multiple Sources of Lawi. Constitutions

1. Within the hierarchy of law, constitutions occupy the top rung. 2. A constitution is the first document that establishes the underlying

principles and general laws of a nation or state. 3. The U.S. Constitution is the fundamental law of the land. All other

laws—federal, state, or local—are secondary. 4. Similarly, each state has a constitution that is the “supreme law of the

state.” 5. Constitutions define the powers that each branch of government may

exercise. 6. Constitutions also specify how government officials will be selected.

ii. Statutes1. The second rung of law consists of statutes. Laws enacted by federal

and state legislatures are usually referred to as “statutory law.” 2. Until the latter part of the 19th century, American legislatures played

a secondary role in the formulation of law. It was not until the 20th century that state legislatures became the principal source of law (Friedman, 1984).

iii. Administrative Regulations


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1. The third rung of American law consists of administrative law. Administrative agencies are authorized to make rules and regulations consistent with general principles specified in an ordinance or statute.

2. Administrative laws are extensive and are the newest, fastest growing, and least understood source of law.

iv. Judge-Made Law1. Courts decisions, or “judge-made law,” are still an important source

of law. 2. Judge-made case law is vital in determining the meaning of other

sources of law as well.

Class Discussion/Activity 5What are the three key characteristics of common law? What is the importance of each of these characteristics?

See Assignments 9, 10, and 13

VIII. THE ADVERSARY SYSTEM Learning Objective 7: Explain the importance of the adversary system.

A. Law is both substantive and procedural. i. Substantive law creates legal obligations.

ii. Procedural law establishes the methods of enforcing these legal obligations.

B. The guiding assumption of the adversary system is that two parties, approaching the facts from entirely different perspectives, will uncover more of the truth than would a single investigator, no matter how industrious and objective.

C. Safeguardsi. The U.S. Constitution provides numerous safeguards such as protection

from unlawful search and seizure. ii. By putting power in the hands of several different parties, the adversary

system creates another type of safeguard. Each actor has limited powers. iii. In diffusing power, the adversary system provides a third safeguard: the

defense attorney who is responsible with asserting the rights of the accused.

iv. All trials are governed by both rules of procedure and rules of evidence. Criminal trials start with two presumptions: the presumption of sanity and the presumption of innocence.

Class Discussion/Activity 6Does the presumption of innocence have any real effect in criminal cases? If not, is it still important?

What If Scenario


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What if you were the governor of your state; would you allocate more funds to the state court system so that more defendants would be subject to jury trials instead of plea bargains? Why or why not?

See Assignment 8

IX. THE RIGHTS OF THE ACCUSED Learning Objective 8: Name the four amendments of the Bill of Rights that deal specifically with criminal procedure.

A. Procedural law in the United States places a heavy emphasis on protecting the individual rights of each citizen.

B. A key feature of a democracy is the insistence that the prevention and control Because the powers of the criminal courts are so great, there is concern that those powers might be abused or misapplied.

C. Restrictions on the use and application of government power take the form of rights granted to the accused.

D. The primary justification for providing constitutional safeguards for those caught in the net of the criminal process is to ensure that innocent persons are not harassed or wrongly convicted.

E. Another reason that democracies respect the rights of those accused or suspected of violating the criminal law is the need to maintain the respect and support of the community.

F. Due Processi. The principal legal doctrine for limiting the arbitrariness of officials is

due process. ii. The core of the idea of due process is fundamental fairness insofar as a

person should always be given notice of any charges brought against him or her, that a person should be provided a real chance to present his or her side in a legal dispute, and that no law or government procedure should be arbitrary or capricious.

G. Bill of Rightsi. The major obstacle to the ratification of the Constitution was the absence

of specific protections for individual rights. ii. Shortly after adoption of the Constitution, ten amendments, collectively

known as the Bill of Rights, were adopted. iii. Many of these protections deal specifically with criminal procedure. iv. Originally only applicable to the national government, the Supreme Court

eventually used the doctrine of selective incorporation to apply some of the provisions in the Bill of Rights to the states as well.

Class Discussion/Activity 7What four amendments to the Constitution are specifically related to criminal procedure? In what ways do these amendments impact the courts?


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What If ScenarioWhat if you were asked a question by a delegation of visiting judges from the People’s Republic of China as to why the American judicial system accords more rights and protections, as guaranteed by the Bill of Rights of the U.S. Constitution, to crime suspects than crime victims? What would you say?


X. INTRODUCTION TO CRIMINAL LAW Learning Objective 9: Identify the major elements of a crime.Learning Objective 10: Identify some of the most important legal defenses in American law.

A. brought because the courts possess powers that private parties do not. B. Civil disputes include torts, contracts property, domestic relations, and

inheritance. C. Some disputes require special treatment because civil law remedies are not

enough. Criminal law relates to actions that are considered so dangerous, or potentially so, that they threaten the welfare of society as a whole.

D. In civil law, the injured party receives compensation. Violators of the criminal law, however, are punished.

E. The stress on punishment derives from the goal of criminal law to prevent and control crime.

F. It is important to recognize that the criminal law is intended to supplement, not supplant, the civil law. Thus, as discussed earlier, a person may be prosecuted criminally, and the victim may also seek to recover civil damages for the same act.

G. Elements of a Crimei. In every criminal case, the prosecution must prove the corpus delicti

beyond a reasonable doubt. ii. In defining the elements of a particular offense, criminal laws are based

on five general principles. Most behavior cannot be considered criminal unless: 1. a guilty act (actus reus) is committed, with 2. a particular level of criminal intent, called mens rea, and the guilty act

and the criminal intent are related. 3. In addition, a number of crimes also requite the prosecution to prove

additional elements, such as the presence of certain attendant circumstances and/or that the guilty act caused a particular result.

Class Discussion/Activity 8Describe the elements of crime. Why is it important to have the union of actus reus and mens rea?

H. Defining Crimes


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i. Using the principles of actus reus, mens rea, attendant circumstances, and result, legislatures define the elements of crimes in penal codes.

I. Criminal Defensesi. Individuals may have performed illegal acts, but may nonetheless be not

guilty of a crime due to the applicability of legally recognized defenses. ii. Legal defenses derive from the way crime is defined.

iii. In most criminal cases the defense attempts to cast doubt on the defendant’s guilt.

iv. In other cases, however, the defense may assert specific legal doctrines in an attempt to secure an acquittal.

v. An alibi defense permits defendants to argue that they were somewhere else at the time the crime was committed.

vi. Defenses that Negate Mens Rea1. Sometimes people engage in an act that, at first blush might appear to

be criminal, but they do so under circumstances demonstrating that they lacked true criminal intent. These defenses are said to negate mens rea.

2. The two most common of these defenses include the mistake of fact defense and the defense of necessity.

vii. Defenses of Justification1. Defenses of justification are based on the commission of an act under

circumstances the criminal law does not seek to punish, such as using force in self-defense, defense of other persons, or defense of property.

viii. Procedural Defenses1. There are a number of procedural defenses that the law recognizes for

public policy reasons. 2. These defenses are generally unconcerned with factual guilt. Rather,

they focus on compliance with the rules and processes of the criminal justice system.

ix. Defenses of Excuse1. Defenses of excuse seek to excuse acts committed by defendants who

should not be held criminally responsible for their actions because they were too young or because their mental state prevented them from understanding the consequences of their actions.

2. In most states children under the age of 7 are considered legally incapable of forming criminal intent, and therefore cannot be held criminally responsible for their actions. This is a criminal defense referred to as infancy.

3. The premise of juvenile delinquency is that people under a certain age are less responsible for their actions than adults.

Class Discussion/Activity 9The law recognizes certain defenses to crime. In those cases, even when an individual has committed the guilty act (actus reus) of an offense, they are not guilty of the crime charged. Why shouldn’t those who commit the guilty act always be held accountable for their actions?


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Media ToolThe Insanity Defense: A Closer Lookhttp://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htmo Read the article The Insanity Defense: A Closer Look.o Discussion: Based on the information you have, do you agree with the

author? Why or why not?

XI. LAW ON THE BOOKS VS. LAW IN ACTION Learning Objective 11: Explain how a “law in action” perspective complements a “law on the books” approach to studying the criminal courts.

A. Law on the Booksi. The structure of the courts, the legal duties of the main actors, and the

steps in the criminal process are all basic to understanding how the courts dispense criminal justice. These elements constitute law on the books—the legal and structural components of the judiciary. The starting point in understanding the legal system is to know the formal rules. Law on the books is found in constitutions, laws enacted by legislative bodies, regulations issued by administrative agencies, and cases decided by courts.

B. Law in Actioni. Law on the books only partially explains how a criminal case unfolds. In

many ways, law on the books represents an idealized view of law, whereas law in action focuses on the human factors governing the actual application of the law.

ii. This view stresses the relationship between the various courtroom actors and the ways in which they process criminal cases from intake, through plea bargaining, and the determination of appropriate sentencing for those defendants found guilty.

iii. The law in action perspective also stresses the importance of discretion. iv. A wide gap exists between legal theory (law on the books) and how that

law is applied (law in action). v. The criminal process is filled with detours. At each stage officials decide

to advance the defendant’s case to the next step, reroute it, or terminate it. The result is that many cases which enter the criminal court process are adjudicated during the early stages.

vi. A law in action perspective helps us understand the dynamics of courthouse justice.

Class Discussion/Activity 10Discuss law in action versus law on the books.

Media ToolJustice and The Courts (2002)http://video.pbs.org/video/1512030734


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http://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htm

o Watch the PBS video, which is an interview with the Honorable Judith Kaye, Chief Judge of the State Court of New York, on the evolution of the courts in response to societal changes and how 9/11 has changed the courts. She discusses the struggle between maintaining national security and preserving a justice system of due process and equal treatment for all.

o Activity: Write a one-page reaction paper on how the courts, in your opinion, should respond to changing societal values.

What If ScenarioWhat if you were the prosecutor of a case in which an angry father named John shot and killed his ex-wife’s current husband Jimmy for molesting his (John’s) five-year-old daughter. Would you prosecute John, who had been hailed as a hero in the local community and in the media? Why?

See Assignment 5

XII. COURTS AND CONTROVERSY Learning Objective 12: Distinguish between the crime control model of criminal justice and the due process model of criminal justice.

A. The trial of George Zimmerman illustrates some of the controversies surrounding courts and crime in the United States. Such controversies include issues such as race, age, and political preference.

B. At the heart of the public’s concern about crime has been a debate over the actions and inactions of the criminal courts. What the courts do (and do not on crime.

C. Numerous reforms have been suggested, but no agreement has been reached as to what changes are in order.

D. In the public dialogue on the issues facing the criminal courts, conservatives square off against liberals, and hard-liners against those said to be soft on crime.

E. Helpful in understanding the controversy over the criminal courts are the crime control and due process models developed by Herbert Packer (1968).

F. Crime Control Model i. The most important element in the crime control model is the repression

of criminal conduct. Unless crime is controlled, the rights of law-abiding citizens will not be protected, and the security of society will be diminished.

ii. The crime control model stresses the necessity of speed and finality in the courts to achieve the goal of crime suppression.

G. Due Process Modeli. In contrast to the crime control model, the due process model emphasizes

protecting the rights of the individual. ii. The key function of the courts is not the speed and finality projected in

the crime control model, but an insistence on careful consideration of each case.


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iii. The due process model emphasizes the need to reform people through rehabilitation.

XIII. The U.S. justice system strives to control crime, while simultaneously honoring the constitutional rights of the accused. The priority of crime control versus due process has fluctuated throughout the history of the courts. The law, however, provides a certain level of stability, even as society’s values change on the question of crime control and due process.

XIV. Controversies such as the war on drugs illustrate that reasonable people can differ as to the proper scope of the law in crime control efforts.

Media ToolSCOTUSbloghttp://www.scotusblog.com/Read a post or watch a video from the U.S. Supreme Court of the United States blog website. Write a summary of the post or video and your reaction to the information.

See Assignment 4

XV.MEDIA DEPICTIONS AND DISTORTIONS OF CRIMINAL COURTS

A. Newspapers dramatize the crime problem. B. Official government statistics document that levels of crime are high (but

declining). Unofficial pollsters report that Americans believe crime rates are too high.

C. Candidates for public office promise that, if elected, they will get tough on criminals. Government officials announce bold new programs to address the crime problem. Some of these programs work but most are not effective.

D. A good deal of the political rhetoric about crime focuses on the criminal courts. Prosecutors, judges, and appellate courts (including the Supreme frustrated with the criminal justice process. Judges and defense attorneys—much more so than police chiefs and prison wardens—are blamed for high crime rates.

KEY TERMS

administrative regulations: Rules and regulations adopted by administrative agencies that have the force of law.

adversary system: The burden is on the prosecutor to prove the defendant guilty beyond a reasonable doubt, and the defense attorney is responsible for arguing for the client’s innocence and asserting legal protections.

alibi defense: A defense that argues the defendant could not have committed the crime. For example, a defendant argues that witnesses can show he was somewhere else at the time the crime was committed.


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Anglo-American law: U.S. law.

attempt: An act done with the intent to commit a crime; an overt act toward its commission; the failure to complete the crime; the apparent possibility of committing it.

attendant (accompanying) circumstances: Conditions surrounding a criminal act—for example, the amount of money stolen in a theft.

Bill of Rights: The first ten amendments to the U.S. Constitution, guaranteeing certain rights and liberties to the people.

civil law: Law governing private parties; other than criminal law.

common law: Law developed in England by judges who made legal decisions in the absence of written law. Such decisions served as precedents and became “common” to all of England. Common law is judge-made; it uses precedent, and it is found in multiple sources.

constitution: The first document that establishes the underlying principles and general laws of a nation or state.

corpus delicti: The essential elements of a crime that the prosecution must prove beyond a reasonable doubt. criminal defense: Attempts to cast doubt on the defendant’s guilt.

criminal intent (mens rea): The mental state required for a crime to have been committed.

criminal law: Laws passed by government related to actions that are considered so dangerous, or potentially so, that they threaten the welfare of society as a whole.

crime control model: A perspective on the criminal justice process that prioritizes the repression of criminal conduct.

criminal justice system: The numerous public agencies involved in implementing public policy concerning crime.

CSI effect: Heightened juror expectations and demands for scientific evidence as a result of changes in popular culture brought about by rapid scientific and technological advances and widespread dissemination of information about them.

due process model: A perspective on the criminal justice system that emphasizes protecting the rights of the individual.


due process of law: A philosophy of criminal justice based on the assumption that an individual is innocent until proven guilty and has a right to protection from arbitrary power of the state.

defenses of excuse: Defenses seeking to excuse acts committed by defendants who should not be held criminally responsible for their actions because they were too young or because their mental state prevented them from understanding the consequences of their actions.

defenses of justification: Defenses based on the commission of an act under circumstances where criminal law does not seek to punish; includes using force in self-defense, defense of other persons, or defense of property.

elements of a crime: Five principles of a crime that are critical to the statutory definition of crimes and that the prosecution is required to prove beyond a reasonable doubt: guilty act, guilty intent, relationship between guilty act and guilty intent, attendant circumstances, and results. felonies: The more serious of the two basic types of criminal behavior, usually bearing a possible penalty of one year or more in prison.

guilty act (actus reus): Requirement that, for an act to be considered criminal, the individual must have committed a voluntary act that resulted in criminal harm.

infancy: A criminal defense where children seven years and under are considered legally incapable of forming criminal intent and, therefore, cannot be held criminally responsible for their actions.

insanity defense: An excuse defense that seeks to justify acts committed by defendants because their mental state prevented them from understanding the consequences of their actions.

judge-made law: The common law as developed in form and content by judges or judicial decisions. juvenile delinquency: An act committed by a juvenile, which would be a crime for an adult.

law: Body of rules enacted by public officials in a legitimate manner and backed by the force of the state.

misdemeanors: Lesser of the two basic types of crime, usually punishable by no more than one year in jail.

mistake of fact: Defense in which a mistake regarding a factual matter would have justified the act or omission that is the subject of a criminal prosecution.


municipal ordinance: A statutory law enacted by a local unit of government.

necessity: Defense that allows a defendant to argue that his or her conduct should either be excused entirely or mitigated to a less serious charge because mens rea was formed under extraordinary circumstances that render it unfair to hold the defendants responsible for the unlawful conduct.

precedent: A case previously decided that serves as a legal guide for the resolution of subsequent cases.

procedural defenses: Defenses that focus on compliance with the rules and processes of the criminal justice system, such as the right to a speedy trial.

procedural law: Law that establishes the methods to be followed in starting, conducting, and finishing a lawsuit.

result: A consequence of a criminal act.

selective incorporation: The legal doctrine whereby the Supreme Court ruled that the due process clause of the Fourteenth Amendment made some provisions of the Bill of Rights applicable to the states.

self-defense: The commission of an act under circumstances the criminal law does not seek to punish such as using force in defense of oneself, other persons, or property.

stare decisis: Latin phrase meaning “let the decision stand”; doctrine that requires a judge to decide a case by applying the rule of law found in previous cases, provided the facts in the current case are similar to the facts in previous cases.

statutes: Laws enacted by federal and state legislatures.

substantive law: Law that creates legal obligations. Tort, contract, and domestic relations are examples of substantive civil law. Murder, robbery, and burglary are examples of substantive criminal law.

violations: crimes subject to a fine or short jail term

LECTURE NOTES

This chapter addresses the history of changes courts have recognized over time, including the use of electronic eavesdropping in accordance to the release of inmates through suppression of evidence. Despite the get-tough-on crime stance embraced by the public, technologies have made it increasingly possible for wrongfully convicted felons to prove their innocence and regain their freedom through the appeals process of the system. By discussing both, students are able to see firsthand the changes in the past and compare them to the potential changes in the future.


Discuss the three main components of the criminal justice system: police, courts, and corrections. These elements have equally important roles that fit together like a puzzle. Without any one of the components, the justice system would not function properly. Despite the necessity of each branch, the competing goals among justice professionals in law enforcement, courts, and corrections can sometimes create tension and conflict. Elaborate upon how each component works and the reasons tensions can arise among members of different departments.

Present the normal order of entering and being processed through the criminal justice system, and discuss what takes place during each step:

1. crime2. arrest3. initial appearance4. bail5. grand jury6. preliminary hearing7. arraignment8. discovery9. pretrial motions10. plea negotiations11. trial12. sentencing13. appeal

Identify the typical actors seen in a courtroom setting: Prosecutors. They are the most influential person in the courtroom. They decide

which cases to try, can offer plea-bargains, and carry some influence over bail and sentencing.

Defense attorneys. They can be private attorneys or publicly appointed (if the defendant cannot afford an attorney).

Judges. They are elected at the local and state level; the President chooses Federal Judges. They set bail, instruct jurors, impose sentencing or dismiss cases, and respond to prosecutors and defense attorneys.

Defendants. These are the people accused of the crime. The majority of defendants are poor, young, uneducated males.

Victims. They testify, increase demands for bail, influence guilty pleas and sentencing, and can argue for prison/jail release.

Note the differences between law on the books (laws that are written and official; found in federal and state constitutions, laws enacted by legislative bodies, regulations issued by administrative agencies, and cases decided by courts) and law in action (this is the discretionary element of criminal law; this is how laws are applied in a practical sense, taking into account human factors and outside elements, such as politics).

Criminal courts have seen their fair share of controversy. Two theories have been put


forth to describe this controversy: the crime control model and the due process model. The crime control model emphasizes the safety of society and aims to process as many criminals as quickly as possible. The due process model emphasizes the rights of individuals and aims to maintain a high standard of the innocent-until-proven-guilty ideal.

The 1950s and 1960s saw a rise in the due process model, as social issues became more of a concern for many people. However, since the 1970s, the wars on crime, drugs, and terrorism have shifted public opinion back to the crime control model. Recently there has been a backlash to the War on Drugs, and many believe treatment should be offered to drug offenders, rather than harsh prison sentences.

An important element of controversy surrounding courts is the media attention some cases get. This was seen particularly in the cases of George Zimmerman and Casey Anthony cases. These cases can be used to show the media influence in courts and can also be used to trace the roles of the different branches of the justice system, the steps of the criminal justice process, how the community portrayed the crime, how the court system played an important role, how many courts the case was introduced to, and how technology played an important role over time. Recognize the controversies that occurred over time as discussed in this chapter, and reiterate the points of the chapter through this case.

This chapter discusses the definition of law, which covers four main elements that defines a law — a body of rules, enacted by public officials, in a legitimate manner, backed by the force of the state. One component the definition is missing is the word “justice.” Ask the class what other criminal justice-type words are not defined in the term “law.” They may include words such as decency, fairness, morality, and so on.

Focus on explaining how the common law was derived and where it originated. Because it is now used today in our American society, it is important to explain how it was adopted over time as well as how it is now used. Explain how elements such as the Constitution, case law, statutes, and administrative regulations have the ability to influence the use of common law. Finally, engage students by asking them to create a list of common laws they are familiar with, and have them explain what source of law they each come from.

Explain the adversary system, which allows for multiple parties to uncover and prove the truth. This creates a checks and balances system that aims to prevent misuse of the justice system. Detail the difference between burden of production (producing evidence) and burden of persuasion (burden of proof).

Expand on the definition of criminal law, recognizing that the main differences in types of criminal law include who has been harmed, the prosecution, and the penalty variations. Discuss the differences between misdemeanors and felonies, asking the students to name various criminal statutes under each. Discuss the reasons criminal law exists, focusing on the prevention/control of criminal activity. Ask the students their opinions of the overall


effectiveness of prevention/control of criminals under your state criminal codes.

Discuss the effects of the criminal law on the courts. How does the criminal law impact the courts system from both ends through inconsistencies of the law, plea bargaining and sentencing? Discuss possible ways such impacts may be addressed/minimized.

POSIBBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS

1. Fragmentation and federalism (including the dual court system), descriptions of the varying criminal justice agencies (courts, corrections, law enforcement).LO 1

2. N/A

3. Students should identify prosecutors, defense attorneys, judges, defendants and their victims, and the roles they play in the courthouse. Students should discuss whose role appears to them to be the most pivotal, powerful, or significant.LO 3

4. Students should identify the steps in a typical felony prosecution listed in the chapter and discuss the different ways that courtroom actors can affect the process through discretion at each of these points. Example: The prosecutor decides to charge or not. LO 4

5. Judge-made law, precedent, and multiple sources of law. LO 6

6. How does the amount of plea-bargaining affect the presumption of innocence? How does the media affect the presumption of innocence? Does today’s society assume defendants are innocent until proven guilty? LO 7

7. The Fourth, Fifth, Sixth, and Eighth Amendments. LO 8

8. corpus delicti, actus reus, mens rea, union of act and intent, attendant circumstances, and results. LO 9

9. Infancy, juvenile delinquency, and insanity. Fairness of punishment for involuntary acts, for those acts committed when an individual is too young, or those mentally incapable of understanding the criminal nature of their actions.LO 10


10. Students should identify the differences and discuss how the existence of discretion affects the application of the law. Example: The prosecutor decides to charge or not. LO 11

ASSIGNMENTS

1. Write a one- to two-page paper describing the different actors in the criminal justice system and how their roles in the courthouse might result in conflict.

2. Write a report that explains how the courts relate to the other components of the criminal justice system. Make sure to include some description of the tensions and conflicts inherent in the system.

3. Describe the typical steps in a felony prosecution. Who is the most important actor in a felony prosecution? Why?

4. Research the crime control model and the due process model of criminal justice. Which model do you think is best? Why? As a reference, draw upon a current example of a case you’ve seen in the media lately. What model of punishment was used in the case you found? Do you agree with it? Have a debate in class regarding the two models.

5. Describe, compare, and contrast the law-in-action approach and the law-on-the-books approach to studying criminal justice. Explain what each approach brings to the study of criminal justice and what it explains that the other cannot.

6. Interview a police officer, someone who works in the courts, or a corrections officer. Ask them how their role in the justice system coincides or conflicts with the other two elements. Upon completion of the interview, write a two-page paper discussing the interview.

7. Write a paper naming the four amendments of the Bill of Rights that deal specifically with criminal procedure. Explain their importance in criminal law.

8. Explain the importance of the adversary system. Identify the possible consequences of a criminal court without an adversary system.

9. “Exploring U.S. Courts”http://www.uscourts.gov/

The official website for courts in the United States Assignment: Assign students to visit the U.S. Courts website and your

state courts. Have students describe your court system.

10. “International Courts”http://www.bjs.gov/content/pub/html/wfcj.cfm


http://www.bjs.gov/content/pub/html/wfcj.cfm

http://www.uscourts.gov/

The World Factbook of Criminal Justice Systems Assignment: Assign students to choose another country on the website.

Have students describe the similarities and differences between the criminal justice system of the chosen country from the website and the U.S. criminal justice system.

11. “The Players in the Courtroom”http://judiciallearningcenter.org/the-players-in-the-courtroom/

Judicial learning center website. Assignment: Have students read through the website information on

courtroom actors and take the student challenge.

12. “Bill of Rights and Criminal Procedure”http://billofrightsinstitute.org/educate/educator-resources/headlines/criminal-procedure/

Criminal justice news stories related to the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution.

Assignment: Have students read a current article and identify the importance of the related amendment to the case.

13. “Reading a Legal Citation”http://www.oyez.org/cases/2015

Online information regarding U.S. Supreme Court Cases. Assignment: Have students find a recent U.S. Supreme Court criminal

justice case and break down the legal citation as shown in Exhibit 2.1 in the chapter. Additionally, have students brief the case.


http://www.oyez.org/cases/2015

http://billofrightsinstitute.org/educate/educator-resources/headlines/criminal-procedure/

http://billofrightsinstitute.org/educate/educator-resources/headlines/criminal-procedure/

http://judiciallearningcenter.org/the-players-in-the-courtroom/

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