Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

July, 2020

Criminal Law and Procedure (PPT 7/20/20)Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/368/

Criminal Law and ProcedureFordham University School of Law Pre-Law InstituteJuly 20, 2020

The Honorable Gerald LebovitsJustice, New York State Supreme CourtAdjunct Professor of Law

Required Readings

• New York City Bar Association, New York State Criminal Justice Handbook

• https://www.nycbar.org/new-york-state-criminal-justice-handbook

• Federal Defenders of New York, Information for Clients and Families

• https://federaldefendersny.org/information-for-client-and-families/understanding-my-federal-case.html

Introduction to Criminal Law and Criminal Justice

What are crimes?

Criminal law

Sources of criminal law

Why we punish?

Elements of just punishment

Strict liability

Classification of crimes

Common sentences

Defenses

Arraignment

Preliminary Hearing & Grand Jury

Bail

Plea Bargaining

Pre-trial

Trial

Sentencing

Appeals

The Second Amendment

The Fourth Amendment

The Fifth Amendment

The Sixth Amendment

The Eighth Amendment

The Fourteenth Amendment

Criminal Law Criminal Procedure Constitutional Limits

What are Crimes?

• A crime is any act or omission in violation of a statutory law prohibiting the action or omission.• Nearly all states have abolished common-law

(law derived from judicial decisions instead of statutes) crimes. A person may be convicted and punished only for conduct defined as criminal by statutes or rules.

• A crime is anything that lawmakers say is a crime. • Subject to the Constitution, this can make being left-

handed or having the flu a crime if a legislature chose to do so.

• A crime is a public offense. • It causes a social harm. The injuries suffered involves

a breach and violation of public rights and duties.

(Appreciation goes to Joshua Dressler, Understanding Criminal Law 62 (8th ed. 2018), for much of the information to the right. Pdf available at: http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

Civil Law vs. Criminal Law(Appreciation to Rasmussen College for much of the information below. https://www.rasmussen.edu/degrees/justice-studies/blog/civil-law-versus-criminal-law/.)

Civil Law

• Settling disputes between private citizens

• Compensation rather than punishment

• Right to jury trials is not guaranteed

Criminal Law

• State vs individual

• System of laws concerned with punishing those who commit crimes

• Punishment rather than compensation

• Right to jury trial is guaranteed by Sixth Amendment

Sources of Criminal Law

(Appreciation goes to American Studies Journal for much of the information to the right. See http://www.asjournal.org/49-2007/criminal-justice-in-the-united-states/.)

• Legislature• Federal Criminal Law (by

Congress) • counterfeiting U.S. currency,

illegally entering the United States, treason, drug trafficking, firearms, crimes across state lines (Interstate Commerce Clause), etc.

• State Criminal Law (by state legislatures) is made up of general principles of criminal responsibility, laws defining the criminal offenses, and laws defining excuses and justifications.

• Acts can be crimes federal and state crimes: E.g., bank robbery.

Federal Rules of Evidence Federal Rules of Criminal Procedure

United States Code Title 18 (18 U.S.C.)

New York Criminal Procedure Law

New York Penal Law

Sources of Criminal Law

• Model Penal Code

• Drafted in the 1950s and 1960s by the American Law Institute.

• The MPC is not law, but it heavily influenced adoption of revised penal codes: two-thirds of the states have adopted the MPC in whole or in part.

Why we punish?(Appreciation goes to Joshua Dressler, Understanding Criminal Law 81-84 (8th ed. 2018),for much of the information below. Pdf available at: http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

Two major theories of punishment:

• Utilitarian view: the purpose of law is to maximize the net happiness of society.• A wrongdoer is punished to achieve general deterrence. That is, a wrongdoer

is punished to convince the general community – more particularly, protentional criminal offenders to forgo criminal conduct in the future.

• Retributive view: punishment is justified when it is deserved.• A wrongdoer is punished whether it will result in a reduction of crime.

• Retributive view looks at only the blameworthiness of the crime.

• It imposed a ceiling that punishment may not exceed the crime.

Why we punish?

• Specific deterrence: Punishment intended to discourage criminal behavior in people already charged with a crime.

• Captation: Keeping criminals in a controlled and secure environment to keep them separate from the rest of society

Should we punish?

• Is punishment the best way to deal with crime?

• Is a system of reform and rehabilitation a more effective and efficient way of dealing with crime?

Should we punish?

• Looking at this hypothetical situation, which system seems to work better? Punishment or reform?

• B went to prison for arson. When B got out of prison, she stayed on track for a couple of years, but one day she burned another building down. B went back to prison. When B was released, she burned her own home down, taking herself with it. While in prison B did not get any mental health help, which was determined to be the likely cause of her repeated offenses and eventual suicide.

• Assume that the U.S. prison system saw B’s case and decided to institute a system of reform rather than punishment. C was homeless and barely surviving, but after finding out that if she went to prison, she would live in a nice facility and get all the help she needed, C decided to commit a crime so that she could go to prison and live a better life.

Defining Criminal Conduct: The Elements of Just Punishment

LegalityNo crime without law; no punishment without law.

ProportionalityMust differentiate between serious

and minor offenses

CulpabilityCriminal conduct must consist of culpable mind and culpable act

Legality(Appreciation goes to Joshua Dressler, Understanding Criminal Law 123-24 (8th ed. 2018), for much of the information below. Pdf available at http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• No crime without law; no punishment without law. • People may not be punished unless legislation defines their conduct as

criminal before they act.

• The legality principle bars both retroactivity and vagueness.• Crimes must be codified and ascertained in reasonably clear text.

• Rationale: • Prevent arbitrary and vindictive use of the law.

• Enhance individual autonomy by negating the risk that one’s lawful conduct will be punished retroactively.

• Give fair notice to individuals.

Legality

• Q has suffered from severe anxiety all her life but has never received treatment for it. Q has trouble with everyday activities like leaving her home. Q learns about how marijuana can help with anxiety and wants to try it. But Q lives in Wyoming, where possessing marijuana is a crime. Q does some research and learns that in her neighboring state of Colorado marijuana is legal. Q decides to drive to Colorado and buy some recreational marijuana. Q decides to drive back home under influence so that she can have a less anxious trip. About 10 minutes after crossing the Colorado-Wyoming border, a police officer pulls Q over. The officer sees that she is driving under influence and asks her whether he can search her car. Q lets him. The officer finds a large amount of marijuana in her car. Q believes that she has done nothing wrong. Q also believes that her driving under influence is justified because it helps her with her anxiety.

Legality• Are Q’s beliefs justified?

• What crimes is Q committing?

• Should marijuana be legalized on a national level? Or continue on a state-by-state basis?

Legality(Appreciation goes to Sanford H. Kadish et al., Criminal Law and Its Processes Cases and Materials 176(10th ed. 2017), for much of the information below.)

• Keeler v. Superior Court (1970) Supreme Court of California

• Keeler intercepted his ex-wife, who was in the advanced state of pregnancy, and shoved his knee into her abdomen after saying that he will “stomp the fetus out of you.” The fetus was delivered stillborn with a fractured skull. Keeler was charged with murder of the fetus under California’s Penal Code, which provides that “murder is the unlawful killing of a human being, with malice aforethought.”

• Court Decision: Keeler was not guilty of murder. The term “human being,” as contemplated by the California’s Penal Code, does not include an unborn fetus.

• (1) notice problem: a reasonable person would not think a fetus is a living human being, and kick fetus = killing a person at that time.

• (2) separation of power: this gap/explanation of some term of art in the statute should be left to the state legislature.

• Soon after the Keeler decision, the California legislature amended the statute to include the killing of a “fetus” in the definition of murder.

Proportionality(Model Penal Code § 1.02(2)(a)(i) (2007).)

• Punishment should be rendered within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders.

Proportionality(Appreciation goes to Joshua Dressler, Understanding Criminal Law 141 (8th ed. 2018), for much of the information below. Pdf available at http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Utilitarianism view of proportionality:

• Punishment must not be less than is required to outweigh the potential profit to the criminal of committing the offense.

• Dangerous crimes should be punished more severely than less dangerous ones.

• Punishment should consider the degree to which the conduct in question is deterrable.

• Question: How severely should we punish intoxicated driving under this view?

• Little or no injury may occur in a specific case of intoxicated driving. But the offense is a serious one because drunk driving can result in loss of life or injury to persons and property.

• Drunk driving can be difficult to deter by threat of punishment. Is it appropriate to impose penalties much greater than would be set for equally dangerous, but more easily deterred behavior?

Proportionality(Appreciation goes to Joshua Dressler, Understanding Criminal Law 145 (8th ed. 2018), for much of the information below. Pdf available at http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Retributivism view of proportionality: • Punishment must be proportional to the offense committed, taking into

consideration both the harm caused by the offender and the wrongdoer’s degree of moral desert for causing it.

• Question: How severely should we punish intoxicated driving under this view?• Retributivist would not consider the difficulty-of-deterrence or likely future

harm as factors in calibrating the proper punishment.

• The penalty would be based on the harm of drunk driving itself and the actor’s degree of moral desert, which are arguably minor.

• Under these circumstances, the penalty will likely be relatively light.

Culpability

• Elements of Culpability:

• Actus Reus: voluntary act that causes social harm.

• Mens Rea: state of mind when committing the crime (mens rea needs to be in concurrence with the act).

• Causation: voluntary act must cause the harm.

• Question: In the mythical Land of Oz are only two laws. Law 1 makes it illegal to hurt someone. Law 2 makes it illegal to damage property. A throws a rock at B but misses and breaks C’s window. Did a violate either of both laws?

Culpability

Actus Reus (culpable conduct) vs. Mens Rea (culpable mind)

Actus Reus (culpable conduct)

• A person is not guilty of a crime unless her conduct includes a voluntary act.

• This is an essential (though implicit) element of every criminal offense.

• Voluntary: movement of body that follows “volition” – an act that is “willed.”

• What movement is involuntary?

• reflexes, spasms, seizures, convulsions, movements while unconscious (automatism)/asleep

• HABITUAL acts are voluntary

• smoker lights up, change lanes at the same time everyday

Actus Reus (culpable conduct)

• Examples:

• D’s arm strikes V as the result of an epileptic seizure. Is that a voluntary act?• No.

• D, who knew he was subject to seizures, drove his car anyway and suffered a seizure that caused fatal accident. Is there a voluntary act?

• Yes. A broad time-frame would include the voluntary acts of entering the car, turning the ignition key, and driving. D knowingly placed himself in the position of imposing risks on others.

Actus Reus (culpable conduct)

• Examples:

• D killed her daughter when sleepwalking. Voluntary act?

• No. Sleepwalking is considered legally involuntary.

• D woke up and blacked out. When D blacked out, he shot and killed a police officer. Voluntary act?

• No. Unconscious act is not voluntary.

Actus Reus (culpable conduct)(Appreciation to Joshua Dressler, Understanding Criminal Law 223-25 (8th ed. 2018), for much of the information below. Pdf available at http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Omission to Act• An omission does not by itself produce criminal liability UNLESS you have

legal duty. Four situations in which you have a legal duty to act:• When a statute imposes a duty to care for another.

• pay taxes, stop car after car accidents

• When one stands in a certain status relationship to another. • Express OR implied (doctor, babysitter)

• When one has assumed a contractual duty to care for another.• Husband/wife, parent/child, employer/employee

• When one has voluntarily assumed the care of another and but prevents others from helping the helpless person.

• Bystanders/strangers generally have no legal duty to rescue, but only a moral duty.

Actus Reus (culpable conduct)

• Examples:• A well-meaning D takes a sick person into her home, but then fails to provide

critical care. Is D responsible for a death resulting from this failure?• Yes. By offering voluntary assistance, D let the victim rely on her for care and secluded

the victim so that others are unaware of the victim’s deteriorating condition. D made matters worse than if she had never been involved.

• D took in a mentally disabled mom and her two-month-old daughter. D’s mother had a violent episode and severely beat her daughter, resulting the child’s death. Is D liable for failing to intervene?• No. D has only a moral duty to intervene. She did not fall into the class of people for

whom the law has found a duty of care.

Mens rea (culpable mind)(Appreciation to Joshua Dressler, Understanding Criminal Law 253-55 (8th ed. 2018), for much of the information below. Pdf available at http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Culpability (Broad) definition: Prosecutor must prove a “morally blameworthy” state of mind.

• Elemental (Narrow) definition: Consists of the mental state(s) described in the statute. Those mental states “attach to” objective elements (result and attendant circumstances elements) of the offense.

• Example: It is a felony purposely to do X and knowingly do Y (attendant circumstances element), as to recklessly cause Z (result element).

Mens rea (culpable mind)

• MPC’s approach to mens rea

• The most influential section 2.02: “[A] person may not be convicted of an offense unless he acted purposely, knowingly, recklessly or negligently . . . with respect to each material element of the offense.”

Mens rea (culpable mind)

MPC Attendant Circumstances Results

Purpose D is aware (believes) that X

D’s conscious object is to cause X

Knowledge D is aware (believes) that X

D believes that his conduct is practically certain to cause X

Recklessness D suspects that X (but does not believe that X)

D believes the risk of X is θ and takes that risk for reasons Α-Ω and those reasons are insufficient to justify taking that risk

Negligence D is unaware that X, but a reasonable person would have been aware (would have believed) that X

D is unaware of the risk of X but a reasonable person would have been aware of that risk

Mens rea (culpable mind)(Appreciation to Bryan Stevenson, Just Mercy 189-191 (2015), for much of the information below. Pdf available at https://www.pdfdrive.com/just-mercy-a-story-of-justice-and-redemption-e60737094.html.)

• H is mentally ill. One day H left his home and wandered into a town where nobody knew him. H walked into a stranger’s home. The stranger called the police. When a police officer arrived, H freaked out and accidentally shot and killed the officer with the officer's own gun. H’s mental state was so poor that he was unable to form coherent sentences and therefore unable to defend himself. H was arrested without understanding what he had done.

In this hypothetical situation, should H’s mental illness negate mens rea?

Mens rea (culpable mind)(See https://en.wikipedia.org/wiki/United_States_v._Jewell and https://www.quimbee.com/cases/united-states-v-jewell.)

• United States v. Jewell (1976) United States Court of Appeals for the Ninth Circuit

• Jewell was approached in a bar in northern Mexico near the border with the United States, and after being offered marijuana which he declined to buy, was asked if he would drive a car across the border for $100. The car was stopped at customs and marijuana was found in the car in a compartment that Jewell had noticed but not inspected. To be found guilty the law required that he have knowledge of marijuana being in the car. At trial, Jewell testified that he did not know the drugs were there. There was circumstantial evidence that showed Jewell had knowledge of the drugs and was therefore lying. And there was also circumstantial evidence that showed although Jewell knew of the presence of the secret compartment and that it likely contained marijuana, he deliberately avoided positive knowledge of the presence of the drugs in order to avoid responsibility in the event he was caught. The trial judge refused Jewell’s request to instruct the jury that, in order to convict, Jewell must have had to “absolutely, positively” know the marijuana was in the secret compartment. Jewell appealed the conviction.

Mens rea (culpable mind)

• United States v. Jewell (1976) United States Court of Appeals for the Ninth Circuit

• Appellate Court (9th Circuit) decision: Court held that willful ignorance satisfied the requirements of knowledge of a fact. “Knowledge” is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”

Causation

• D points a gun at V, intending to kill V. Seconds before D pulls the trigger, X, independently of D, shoots and instantly kills D. Then the bullet from the gun of the already-dead D strikes V. Is D guilty of murder? Attempted murder?• Attempted murder. It was X, not D,

who caused V’s death.

Causation

• Actual cause• There can be no criminal liability for resulting harm unless it can be shown

that the defendant’s conduct was a cause-in-fact of the prohibited result.

• To make the determination, courts traditionally apply the but-for test: But for D’s voluntary acts, would the social harm have occurred when it did?

Causation

• Proximate cause• D has a minor argument with V. V, in a rage, runs to the street and is killed by

a stranger, X. • D is the actual cause of V’s death (but-for test is satisfied). But D is not necessarily the

legal cause of V’s death.

• Actual cause serves only to eliminate candidates for responsibility. It does not resolve the matter of ultimate causal responsibility.

Causation

• Proximate cause (direct cause)• Only it is an actual cause.

• An act that is a direct cause of social harm is also a proximate cause.

• Proximate cause is a test of foreseeability: Could the actor foresee the consequence?

Causation

• People v. Arzon (1978) New York State Supreme Court, New York County

• Arzon (defendant) intentionally set fire to a couch on the fifth floor of an abandoned building. The New York City Fire Department was unsuccessful in bringing the fire under control. As two of the firemen were attempting to evacuate the building, they encountered thick smoke that was later found to have come from a fire started on the second floor. There was no evidence that Arzon set the fire on the second floor. As a result of the smoke, a fireman sustained injuries and later died. Was Arzon guilty of murder?

Causation(See https://www.quimbee.com/cases/people-v-arzon.)

• People v. Arzon (1978) New York State Supreme Court, New York County

• Court held that it was foreseeable that firemen would have responded to the situation, thus exposing them to a life-threatening danger. The fire set by defendant was an indispensable link in the chain of events that resulted in the death. Defendant was aware that the building, while abandoned, was occupied by transients and that it was located in the middle of a crowded neighborhood.

• Note: but you can also make arguments that such event was not foreseeable.

Strict Liability

• Strict liability is a rule of criminal responsibility that authorizes the conviction of a morally innocent person for committing a crime, even though the crime, by definition, requires proof of a mens rea. • Only requires a voluntary act or an omission to act.

Strict Liability

• Examples of Strict Liability:• Statutory rape. Having sex with a minor is a crime even if the defendant did

not know the sexual partner was—or reasonably thought that the partner was not—a minor.

• Selling alcohol to a minor is a strict-liability crime in some states: A conviction is appropriate even if the seller honestly thought that the buyer was 21 or older and tried to confirm that.

• Some traffic offenses may also be strict liability crimes. In many places, it doesn’t matter whether the driver knew she went over the speed limit—the plain fact that she did justifies a conviction.

Strict Liability

• Morissette v. United State (1952) United States Supreme Court

• Facts: D took shell casings off government property and sold them for a profit. It was a crime knowingly to convert government property, but he claims he thought the property had been abandoned.

• Court found it irrelevant whether his belief was reasonable. Court equated his actions with the common-law crime of larceny, and common-law crimes are generally not strict liability. He was acquitted.

Strict Liability(See https://www.quimbee.com/cases/united-states-v-dotterweich.)

• United States v. Dotterweich (1986) United States Supreme Court

• Facts: Buffalo Pharmaceutical Company (defendant) purchased drugs from manufacturers, repackaged them, and shipped them to physicians and others under its own labels. On at least two occasions, the drug manufacturer’s labels were incorrect. Buffalo Pharmaceutical and its president and general manager, Dotterweich, were prosecuted for shipping misbranded or adulterated products in interstate commerce in violation of Federal Food, Drug, and Cosmetic Act § 301 .

Strict Liability

• United States v. Dotterweich (1986) United States Supreme Court

• Court held that ignorance is no defense for mislabeling canned food. Sellers must inform themselves, unlike the innocent public, who is wholly helpless.

Scope of Criminality

• G lived in Florida. One day G was driving his motorcycle without a helmet on. G hit a bump in the road and fell off his motorcycle. G cracked his head open and died instantly. G’s death could have been prevented if he was wearing a helmet. The Florida is now considering making it illegal to ride a motorcycle without wearing a helmet.• On one hand, the State of Florida does not

want to infringe on people’s freedoms. On the other, the State wants to reduce the number of motorcycle-related accidents and spend less money on hospital bills and caring for invalids. Should the state create this law?

Classification of Crimes(Appreciation goes to the N.Y. St. Court System for many of the explanations below.See https://www.nycourts.gov/courthelp/Criminal/typesCriminalCases.shtml.)

• In every state, crimes are put into different categories. Usually, these categories are: • Felony

• Felonies are the most serious crimes: murder, rape, and arson. If you are found guilty of a felony, you may be sent to jail for 1 year or more.

• Misdemeanor• A misdemeanor is more serious than a violation but less serious than a felony. Examples

of misdemeanors are prostitution, petty larceny, and making graffiti.

• Infraction (violations)• A violation, like trespassing, unlawful possession of small amounts marijuana, or

disorderly conduct, is not considered a crime. The most you can be punished for a violation is 15 days in jail.

Common Sentences(Appreciation goes to the N.Y. St. Court System for many of the explanations below.See https://www.nycourts.gov/courthelp/Criminal/typesCriminalCases.shtml.)

• Conditional Discharge

• The defendant is released under certain conditions, like paying money back (restitution), going to a drug, anger management, job training or GED program, or paying a fine. If any condition is not met, the defendant may be re-sentenced to a jail.

• Fine

• Defendants who are fined can pay the fine or go to jail. A defendant may also have to pay a fine in addition to a conditional discharge, probation, or imprisonment sentence. A poor person may not go to jail for not paying a fine.

• Probation

• The defendant is supervised by the Department of Probation for a number of years and may have to follow certain conditions, like reporting to a probation officer and staying out of trouble.

Common Sentences

• Restitution

• A defendant is ordered to pay the victim back for a loss that happened because of the crime. Restitution can be a condition of probation or a conditional discharge.

• Unconditional discharge

• The defendant is sentenced and released without the Judge’s setting any conditions for release.

• Imprisonment

• The defendant is sent to jail for a period of time.

Defenses(See https://en.wikipedia.org/wiki/Criminal_defenses.)

• Types of Defenses

• Self-defense: Defendants argue that they were defending themselves or another (defense of thirds) and therefore that their acts are justified.

• Provocation: Defendants argues that their actions resulted from preceding events that would make a reasonable person lose control.

• Automatism: Defendants argue that they are not responsible for the crime because they could not control their actions.

• Types of Defenses

• Alibi: Defendants argue that they were somewhere else at the time of the crime.

• Mistake: Defendants argue that they committed the crime by accident and therefore never had the necessary mens rea.

• Necessity: Defendants argue that their actions were necessary to prevent a greater harm from happening.

Defenses

• Types of Defenses

• Mental disorder/insanity: Defendant argue that they are not responsible for their actions due to mental disorder/insanity at the time of the crime.

• Diminished responsibility: Defendants argue that they are not fully liable for their actions due to their an impaired or “diminished” mental state.

Defenses

• Types of Defenses

• Intoxication: defendant argues that they are not be fully liable for their actions due to their substance at the time of the crime.

• Duress: Defendants argue that they were forced to commit the crime through threats or force by another party.

• Infancy: Defendants that qualify as an “infant” are not liable for their actions.

Defenses

Criminal Procedure(Appreciation to the N.Y. St. Court System for many of the explanations below. See http://www.nycourts.gov/courthelp/criminal/caseBasicsCriminal.shtml.)

Arrest Arraignment Plea Bargain

Preliminary Hearing & Grand Jury

Bail Pre-trial Trial Sentencing Appeal

Appreciation goes to the N.Y. St. Court System for Some of the Explanations

Below.

Arraignment

After the defendant is arrested and processed, the defendant will be brought to court for arraignment.

Before the arraignment, the defendant is assigned an attorney if he or she cannot afford one. The criminal complaint is read in court (unless the

reading is waived).

The defendant tells the court whether he or she is guilty or not guilty. This is called the defendant’s plea. Bail or other conditions of release may be

set.

If the defendant pleads guilty, the defendant skips to the sentencing step.

If the defendant pleads not guilty to a felony, the case goes to the Grand Jury.

Preliminary Hearing

• At a preliminary hearing, the prosecutor and, if it wishes, the defense present witnesses and other evidence to a judge without a jury. The judge will decide whether there is prima facie evidence that the defendant committed a crime. • If the judge decides that there is enough evidence, the prosecutor has 45 more days to

bring the case to a grand jury. If the prosecutor does not present evidence that you committed any crime, the court must release you from custody.

• If the hearing shows that the defendant committed a crime other than the felony charged, the court may reduce the charges against you.

• Most cases in New York City skip this hearing. The prosecutor takes the case directly to a grand jury.

Grand Jury

• The grand jury decides whether there is enough evidence to put you on trial.

• The grand jury votes an indictment when at least 12 (of 24, with a quorum of 16) grand jurors think there is enough evidence to indict. • The grand jury can find that there is not enough evidence for the felony, but

that there is enough evidence for a misdemeanor. In that case, the charges will be reduced.

• If the grand jury finds that there is not enough evidence of a crime, the court must dismiss the charges and release the defendant. This is called voting a no true bill.

Bail

• Bail is the money or other security given to the court in exchange for releasing a defendant from jail and the defendant’s promise to return for the next court date.

• Posting bail allows the defendant to go back to his or her normal life until the case is finished.

Bail

• The judge sets the bail amount. Bail may be denied in serious felony cases or if the defendant has few community contacts. A defendant may also be released without bail.

• Bail (minus a small administrative fee) is returned after the case is over.

• A judge may set other conditions of release, like house arrest or surrendering a passport.

• New York bail law does not allow judges to consider whether a defendant is dangerous, but only whether bail is required to assure that a defendant will return to court.

BailNew York’s bail laws changed in January

2020 and again in July 2020.

Plea Bargaining• Plea bargaining is when the defense and the prosecutor talk about settling the case

without a trial.

• Sentence bargaining is illegal in federal courts but legal in New York.

Plea Bargaining

• A defendant may seek a plea bargain, but the prosecutor may choose not to plea bargain.

• A plea bargain must be approved by the judge. Only the judge may decide your sentence. A defendant you may agree to plead guilty in exchange for the prosecutor’s promise to ask the judge for a sentence with no jail time, just probation.

• Or the defendant and the prosecutor may agree that on a plea to a lesser charge that has a lower range of punishments for the judge to choose your sentencing.

Pre-trial• New York Discovery

• After arraignment and before the trial, both sides will exchange information needed to prepare their cases for trial. The defendant must give notice and details of some defenses, like an alibi or insanity. The prosecution must turn over evidence that tends to exculpate or mitigates punishment (Brady and Rosario material), as well as witness statements (Rosario material) and scientific evidence. This is called discovery. • New York had the nation’s most pro-prosecution discovery laws before January 1, 2020. After that

date, it had the nation’s most pro-defense discovery laws. The law changed again effective May 3, 2020.

• Question: Should the law require complete and immediate discovery in criminal cases?

Pre-trial

• Pre-trial motions• A motion is how a party asks the court for something. For example, a

defendant may ask the judge to dismiss the case in the interests of justice, reduce the charges, or prevent evidence from being used at the trial.

• Hearings may be held to decide whether the motions should be granted or not.

Pre-trial New York

• Motion to suppress: Defendant moves to suppress evidence from the trial. • Types

• Mapp Hearing: Motion to suppress illegally obtained physical evidence. Fourth Amendment.

• Huntley Hearing: Motion to suppress a defendant’s statement or confession on Miranda/voluntaryness grounds.• If the statement was made due to abuse or threats.• If the statement was made without being informed of Fifth Amendment

rights.

Pre-trial

• Types

• Wade Hearing: Motion to suppress police arranged identification (line-up, show-up, photo array) of the defendant.

• Dunaway Hearing: Motion to suppress any evidence or statement that derived from an illegal law-enforcement act.

Trial

• Burden of Proof• To convict, the prosecution must prove guilt beyond a reasonable doubtto

the judge (if it is a bench trial) or jury. Because of the presumption of innocence, the defendant may (but need need not) offer any evidence.

Trial

• Trial procedure• The trial starts with opening statements. The prosecutor goes first and

then the defense can make a statement.

• Next, the prosecutor tries to meet the burden of proof by having witnesses testify and by submitting evidence. The defendant may then call witnesses and offer evidence in support of a defense.

Trial

• Trial procedure

• At the end of the trial, the defense may make a closing statement called a summation, followed by the prosecutor’s closing statement. Then the Judge or jury makes a decision.

Trial

• Jury Trial• In New York City, Class B misdemeanors and violations are tried by a judge

without a jury. This is called a bench trial. Outside New York City, a defendant has has a right to a jury trial for all Class B misdemeanors.

• Jury Selection• Jurors are chosen from members of the community who are serving jury

duty.• For a felony, 12 jurors and up to 6 alternates are chosen.

• For a lesser crimes, six jurors and up to 4 alternates are chosen.

• The judge, the prosecutor, and defense counsel will question the jurors. This is called voir dire. Both attorneys can object to some of the jurors.

Trial

• Jury Selection• Peremptory challenge: objection to a potential juror made without

reasoning.• Allows attorneys to object to jurors based on a hunch about the potential juror.

• The number of peremptory challenges an attorney may use is limited by statute

• Challenges for cause: Objection to a potential juror for some stated reason• The number of challenges for cause an attorney may use is unlimited.

Sentencing

• If a defendant is found guilty or pleads guilty, the judge will impose a sentence.

• For violations and minor misdemeanor cases, a defendant might be sentenced right away. Where the possibility of prison time exists, the case will most likely get a date a few weeks away for a sentencing hearing.

Sentencing

• A pre-Sentence Report will be made to help the Judge decide your punishment.

• At your sentencing hearing, you, your lawyer, the Prosecutor and, in some cases, the victim of your crime, all have a chance to speak to the Judge about your sentence.

• The Judge decides your sentence (jury decides whether you are culpable or not).

Constitutional Limits

• Are there limits to a legislature’s lawmaking authority?• May a state legislature or Congress

make it an offense to desecrate an American flag? (Texas v. Johnson.)

• May it make it a crime to be a drug addict?

• May it make it a crime to be infected with the HIV virus?

Constitutional Limits

• Various provisions of the United States Constitution, as interpreted by the judiciary, limit legislative action. A state legislature is also limited by its own state constitution. Relevant U.S. Constitution provisions are:• Bill of rights (limiting federal government):

• The Second Amendment

• The Fourth Amendment

• The Fifth Amendment

• The Sixth Amendment

• The Eighth Amendment

• The Fourteenth Amendment (limiting state and local governments)• Due Process Clause

The Second Amendment

• “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

• In District of Columbia v. Heller, the Supreme Court held that the right to bear arms is a personal right. • This right is subject to regulatory and possession of weapons.

The Second Amendment

Pro–Gun Control Against Gun Control

Should stricter gun control laws be in place?

The Second Amendment

• Y’s father abused Y and Y’s mother. Y’s father owns a gun and has a gun license. The gun is kept in a cabinet that Y can easily reach. One day Y decides he has had enough of his father’s abuse. Y gets his father’s gun and then points the gun at his father, attempting to shoot him in the legs. Y shoots the gun at his father but instead he accidentally shoots him in the chest, killing him instantly.

• How should this situation be handled?

The Fourth Amendment

• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”• Evidence obtained by the police in violation of this amendment may be

excluded at a defendant’s criminal trial.

• This amendment also limits the degree of force a police officer may use in arresting a suspect or prevent an escape.

• This amendment does not prevent police from using no-knock warrants. Should the law be amended?

The Fourth Amendment(See https://www.quimbee.com/essay-practice-exams/criminal-procedure-exam-2.)

• Exclusionary Rule: illegally obtained evidence may not be used in criminal trial.• Should this always be the case? Especially when that evidence will directly affect

the outcome of the trial?• One day a police department in the state of Wisconsin is flying a drone that has recording

features. The officers are flying the drone at an altitude of 500 feet (the FAA has approved private flights at 500 feet). They happen to fly the drones over a greenhouse located in a woman’s backyard. The roof of the greenhouse is transparent and without zooming in the police officers can easily see inside. The drones catch clear footage of multiple potted marijuana plants growing inside of the greenhouse. Using the footage from the drones, the police get a warrant to search the greenhouse and seize the marijuana plants. The police then arrest the property owner for possession of Marijuana. The property owner challenges the constitutionality of this search claiming that she held an expectation of privacy and therefore the drone video footage constituted as “an unlawful warrantless search.”

• Is the property owner’s reasoning correct?

The Fourth Amendment

• In relation to national security, should the exclusionary rule still be a factor in what evidence may be used?• The FBI believed that W had access to and planned on leaking confidential

government documents to the public, but the agents were not sure it was W. If these confidential documents were leaked to the public, national security would be at risk. Without informing W, the FBI hacked into W’s computer network to search for the files. They found all the files on W’s computer and were able to remove them and prevent W from accessing them again. The FBI arrested W for being a terrorist. At W’s trial, his lawyer argued that the FBI illegally found these documents and due to the exclusionary rule of the Fourth Amendment, they may not be used as evidence against W.

• Is this claim correct?

The Fourth Amendment

• The Fourth Amendment is also meant to protect against unnecessary and excessive force used by police officers.

• Does this hypothetical situation violate the Fourth Amendment?

• Two officers were standing in line at a store. Suddenly, the officers noticed that M was shoplifting. The shop owner confronted M, but M pushed the shop owner over and continued to take store items. The two officers cornered M and attempted to put him in handcuffs. M pushed the two officers to the side and began to walk out of the store. One of the officers ran in front of M, but M pushed him over. The other officer couldn’t let M get away, so he tackled him with all his force. It turned out that M had an underlying medical condition which caused him to die when the officer tackled him.

The Fifth Amendment

• “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

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The Fifth Amendment

• Miranda v. Arizona (1966) United States Supreme Court

• Miranda (defendant) was arrested and brought to the police station on account of a kidnapping and rape. After two hours of interrogation, the police officers were able to get a written confession from Miranda. Miranda’s confession was admitted as evidence at his trial even though the police officers admitted to not telling Miranda of his right to an attorney during the interrogation. Miranda was found guilty. Miranda appealed but the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated because he had not specifically request to have an attorney present.

• The case was taken to the United States Supreme Court.• Court decided that the Fifth Amendment requires that law enforcement inform suspects of their

right to remain silent as well as their right to an attorney during interrogations.

The Fifth Amendment

• In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids “double jeopardy”(prohibiting anyone from being prosecuted twice for the same crime) and protects against self-incrimination (implicating oneself in a crime or exposing oneself to criminal prosecution). It also requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property” and requires the government to compensate citizens when it takes private property for public use.

The Sixth Amendment

• “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . .”

• The Sixth Amendment guarantees a criminal defendant the right to a jury trial.

• In April 2020 the Supreme Court ruled that trials for serious offenses must have a unanimous jury (Ramos v. Louisiana).

• Defendants found guilty by a divided jury will get a new trial.

The Sixth Amendment

• Jury nullification is not illegal. If a juror who knows about it is excluded would that violate the Sixth Amendment?

The Eighth Amendment

• “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

• The Eighth Amendment restricts legislative act in two ways:• It imposes limitations on what legislators may define as criminal

• It prohibits punishment that is barbarous in its infliction or grossly disproportional to the offense committed.

The Eighth Amendment

• Question: Should felons have the right to vote?

Are laws that forbid felons to vote cruel and

unusual?

The Eighth Amendment

• Does the death penalty violate the Eighth Amendment?

The Eighth Amendment

• Are private prisons “cruel and unusual”?

• Private prisons cost the government less money. However, they tend to have bad conditions for inmates.• Less security, gangs run the place, weapons are easily accessible, food is not

nutritionally adequate, there is no certainty that every prisoner will get fed every meal, the prisoners are housed in units that need serious repairs, etc.

The Fourteenth Amendment

• “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment

• Does America’s cash-bail system violate the Fourteenth Amendment?

The Fourteenth Amendment

• As seen from recent events and the protests happening today, many argue that the U.S. criminal justice system is inherently racist.

• Others argue that the system itself is not racist.

• The Fourteenth Amendment is meant to give all citizens equal protection under the law. Is it doing its job?

The Fourteenth Amendment

• If racism is indeed systemic, should the government defund the police on a national or local level?

• Would that contribute to a rise in crime or help lower crime rates?

• What would defunding the police mean for the U.S.?

QUESTIONS? ANSWERS?

Justice Gerald Lebovits

Hon. Gerald Lebovits is an acting New York State Supreme Court justice in Manhattan, New York. He is a former staff attorney with the Legal Aid Society, Criminal Defense Division, in Manhattan and a Criminal Court Judge in Manhattan. Since 2011 he has been an adjunct professor of law at Fordham University School of Law, where the students have elected him Adjunct Professor of the Year. For their excellent help with this PowerPoint, Justice Lebovits thanks his judicial fellows Sacha Norton, an honors student at Greenwich High School in Greenwich, Connecticut, and Junpeng (Aiden) Qiao, a rising 2L at Cornell Law School in Ithaca, New York.