Principal McGraw-Hill's Criminal Law for Paralegals

McGraw-Hill's Criminal Law for Paralegals

,
Criminal Law for Paralegals offers students an exciting way to learn about many different crimes and their elements, beginning with the different sources of criminal law and proceeding right through to the last step of a criminal trial, “Sentencing and Post Trial Procedures.” The text has numerous built-in, hands-on assignments with a variety of exercises and cases to help the student learn and enjoy the study of criminal law. The Paralegal Supersite Site
Año:
2008
Edición:
1
Editorial:
McGraw-Hill/Irwin
Idioma:
english
Páginas:
272 / 275
ISBN 10:
0073376965
ISBN 13:
9780073376967
File:
PDF, 9.48 MB
Descarga (pdf, 9.48 MB)

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criminal law for the real world.

Topics are presented in a straightforward and comprehensive manner, while the learning features focus on
three goals:
learning outcomes
Critical thinking
Vocabulary building
Skill development
Issues analysis
Writing practices

relevance of topics without Sacrificing theory
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•
•

Ethical challenges
Current law practices
Technology application

practical application
•
•
•

Real-world exercises
Portfolio creation
Team exercises

McGraw-Hill Paralegal Titles: where educational support
goes beyond expectations.
Building a solid foundation for a successful paralegal career is becoming more challenging as the needs of students and instructors continue to grow. The McGraw-Hill paralegal texts offer the solution to this ever-changing environment. Integrated real-world applications in each chapter teach students the practical skills needed
for a thriving career in the field. A common vocabulary among all McGraw-Hill titles ensures consistency in
learning. With a thorough set of ancillaries and dedicated publisher support, these texts will facilitate active
learning in the classroom and give students the skills sets desired by employers.

CRIMINAL LAW FOR PARALEGALS

•
•
•
•
•

McGraw-Hill’s

McGraw-Hill’s Criminal Law for Paralegals offers students an exciting way to learn about many different crimes
and their elements, beginning with the different sources of criminal law and proceeding right through to the
last step of a criminal trial, “Sentencing and Post Trial Procedures.” The text has numerous built-in, hands-on
assignments with a variety of exercises and cases to help the student learn and enjoy the study of criminal law.

Welcome to the new way of learning in paralegal education—McGraw-Hill Paralegal Titles.
Visit http://www.mhhe.com/paralegal for more information!

ISBN 978-0-07-337696-7
MHID 0-07-337696-5

EAN
www.mhhe.com

MH_CriminalLaw_Mech.indd 1

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McGraw-Hill State-Specific Paralegal Portal
Make Legal Research Easy
Find the information you need for;  that important assignment with the McGraw-Hill
Paralegal State-Specific Online Portal. With links maintained by McGraw-Hill, students
and professionals can quickly and easily find legal forms and conduct essential research.
Resources for All 50 States, Including:
Bar and Legal Associations
Cases
Cities
Civil Procedure
Counties
Courts
Criminal Law
Employment and Labor Law
Environmental Law Resources
Family Law

Federal Legislation
Landlord Tenant Laws
Law Enforcement
Legal Forms
Legal Resources
Media
Probate, Trusts, Wills, and Estates
State Bar and Legal Associations
State Government
Statutes

Valuable one- or two-year subscription card grants you access to the most
up-to-date legal information on the Web!
One-Year Subscription
ISBN: 0-07-723640-8

Two-Year Subscription
ISBN: 0-07-723641-6

Please contact your McGraw-Hill sales representative for a preview of the Paralegal Portal.

www.mhhe.com/paralegalportal

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McGraw-Hill’s Criminal

Law for Paralegals

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ii

Part Number

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Part Title

The McGraw-Hill
Paralegal List
WHERE EDUCATIONAL SUPPORT GOES
BEYOND EXPECTATIONS.
Introduction to Law & Paralegal Studies
Connie Farrell Scuderi
ISBN: 0073524638
© 2008

Wills, Trusts, and Estates for Paralegals
George Kent
ISBN: 0073403067
© 2008

Introduction to Law for Paralegals
Deborah Benton
ISBN: 007351179X
© 2008

The Law Office Reference Manual
Jo Ann Lee
ISBN: 0073511838
© 2008

Basic Legal Research, Second Edition
Edward Nolfi
ISBN: 0073520519
© 2008

The Paralegal Reference Manual
Charles Nemeth
ISBN: 0073403075
© 2008

Basic Legal Writing, Second Edition
Pamela Tepper
ISBN: 0073403032
© 2008

The Professional Paralegal
Allan Tow
ISBN: 0073403091
© 2009 Publishes 01/01/08

Contract Law for Paralegals
Linda Spagnola
ISBN: 0073511765
© 2008

Ethics for Paralegals
Linda Spagnola and Vivian Batts
ISBN: 0073376981
© 2009

Civil Law and Litigation for Paralegals
Neal Bevans
ISBN: 0073524611
© 2008

Family Law for Paralegals
George Kent
ISBN: 0073376973
© 2009

McGraw-Hill’s Torts for Paralegals
ISBN: 0073376930
© 2009

McGraw-Hill’s Criminal Law for Paralegals
Lisa Schaffer and Andrew Wietecki
ISBN: 0073376965
© 2009

McGraw-Hill’s Real Estate Law
for Paralegals
ISBN: 0073376957
© 2009 Publishes 01/04/08
Legal Research and Writing
for Paralegals
Pamela Tepper and Neal Bevans
ISBN: 007352462X
© 2009

McGraw-Hill’s Law Office Management
for Paralegals
ISBN: 0073376949
© 2009
Legal Terminology Explained for Paralegals
Edward Nolfi
ISBN: 0073511846
© 2009

For more information or to receive desk copies, please contact your McGraw-Hill Sales
Representative.

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Chapter 10

Chapter Title

McGraw-Hill’s Criminal

Law for Paralegals

Lisa Schaffer
Contributing Author

Andrew Wietecki
Contributing Author/Editor

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CRIMINAL LAW FOR PARALEGALS
Published by McGraw-Hill, a business unit of The McGraw-Hill Companies, Inc., 1221 Avenue of the
Americas, New York, NY, 10020. Copyright © 2009 by The McGraw-Hill Companies, Inc. All rights reserved.
No part of this publication may be reproduced or distributed in any form or by any means, or stored in a
database or retrieval system, without the prior written consent of The McGraw-Hill Companies, Inc.,
including, but not limited to, in any network or other electronic storage or transmission, or broadcast for
distance learning.
Some ancillaries, including electronic and print components, may not be available to customers outside the
United States.
This book is printed on acid-free paper.
1 2 3 4 5 6 7 8 9 0 QPD/QPD 0 9 8
ISBN 978-0-07-337696-7
MHID 0-07-337696-5
Vice president/Editor in chief: Elizabeth Haefele
Vice president/Director of marketing: John E. Biernat
Sponsoring editor: Natalie J. Ruffatto
Developmental editor II: Tammy Higham
Marketing manager: Keari Bedford
Lead media producer: Damian Moshak
Media producer: Marc Mattson
Director, Editing/Design/Production: Jess Ann Kosic
Project manager: Marlena Pechan
Senior production supervisor: Janean A. Utley
Designer: Marianna Kinigakis
Cover and interior design: Pam Verros
Cover image: © Steven Robertson/iStockPhoto
Media project manager: Mark A. S. Dierker
Outside development house: Beth Baugh
Typeface: 10.5/13 Times New Roman
Compositor: Aptara, Inc.
Printer: Quebecor World Dubuque Inc.
Library of Congress Cataloging-in-Publication Data
Schaffer, Lisa.
McGraw-Hill’s criminal law for paralegals / Lisa Schaffer, contributing author ;
Andrew Wietecki, contributing author/editor.
p. cm. — (The McGraw-Hill paralegal list)
Includes index.
ISBN-13: 978-0-07-337696-7 (alk. paper)
ISBN-10: 0-07-337696-5 (alk. paper)
1. Criminal law—United States. 2. Criminal procedure—United States. 3. Legal
assistants—United States—Handbooks, manuals, etc. I. Wietecki, Andrew. II. Title.
III. Title: Criminal law for paralegals.
KF9219.S334 2009
345.73—dc22
2007043015
The Internet addresses listed in the text were accurate at the time of publication. The inclusion of a Web site
does not indicate an endorsement by the authors or McGraw-Hill, and McGraw-Hill does not guarantee the
accuracy of the information presented at these sites.

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Chapterthe1 Authors
About
Curriculum Technology
Curriculum Technology works with McGraw-Hill on several projects related to the
paralegal series. Curriculum Technology serves education organizations and publishing companies by providing a source of intellectual property development, media,
technology, as well as consultation and research.

Lisa Schaffer, JD, MBA
Contributing Author

Lisa Schaffer earned a Bachelor of Arts in History from the University of California,
Los Angeles; her Juris Doctorate in law from Chapman University School of Law; a
Masters in Business Administration from Chapman University; and an Advanced
Management Certificate and an Executive Management Certificate from the University of California, Riverside.
Lisa worked in the legal industry for over 20 years in a variety of positions for
law firms that specialized in the areas of criminal law, real estate law, corporate
law, and personal injury. She served as in-house counsel for regulatory compliance
in the legal affairs department of National Water & Power, Inc., doing business in
43 states.
Lisa has taught a variety of courses in paralegal studies for InterCoast Colleges
over a period of five years. She was offered and accepted the position of director of
education. She was later promoted to school director of the Riverside campus before
accepting the position of chief administrative officer for all campuses.
Lisa also has served as an assistant vice president in the accreditation and licensing
department for Corinthian Colleges, Inc.

Andrew Wietecki, JD, MPA
Contributing Editor/Author

Andrew Wietecki earned a Bachelor of Arts in English from St. Thomas Aquinas
College; a Masters in Public Administration from the Graduate School at Hamline
University; and his Juris Doctorate in law from Hamline University School of Law.
Andrew was born and raised in New York City. He has been in the education business for 13 years, having practiced real property law before that. He has taught at the
high school level in New York City as well as instructing college-level paralegal students. He has been academic dean, legal program chair, and a college instructor for
the past 11 years. Currently, Andrew works in the education field with Curriculum
Technology producing a wide variety of learning tools while also tutoring children in
English skills.

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About the Authors

Amy Eisenhower, JD, BS
Contributing Writer

Amy Eisenhower earned a Bachelor of Science in English from Wayne State College
in Wayne, Nebraska, and her Doctorate in Jurisprudence from the University of
South Dakota in Vermillion, South Dakota.
Amy was born in Nebraska and has spent much of her life there. She currently
resides in Grand Island, Nebraska. Amy is a member of both the South Dakota and
the Nebraska State Bars.
Amy taught five years of high school English before attending law school. She is
currently employed as assistant general counsel for Credit Management, Inc. She has
been with Curriculum Technology for approximately a year and a half as a senior
consultant.

Rastin Ashtiani
Contributing Writer

Rastin Ashtiani earned a Bachelor of Arts in Psychology from the University of
California at Irvine and a Doctorate in Jurisprudence from Chapman University
School of Law in Anaheim, California.
Rastin was born in Los Angeles, California, has spent much of his life in the Los
Angeles area, and currently resides in Orange County, California. Rastin has worked
with the Orange County District Attorney’s office and also has worked at the law
offices of Dyke Huish. Rastin has been with Curriculum Technology for approximately
a year as a consultant for both paralegal and legal projects.

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Chapter 1
Preface
Criminal law is an exciting and thought-provoking area of law that each one of us has
given some consideration to in the past. Many Americans are either victims of criminal
acts themselves or know of a friend or family member who has been victimized. We live
in a nation that is obsessed with crime, criminal behavior, and criminal laws. The media
offer a vast selection of television programming and film production covering crime-driven
stories. As each year transpires, we continue to build more jails, more prisons, and more
penitentiaries to house a continuing surge in the felonious population.
This text covers the basic groundwork for the criminal justice system and sets forth
the substantive and procedural rights of a criminal defendant. Additionally, we examine the general components of the criminal act, covering the major crimes against
people, property, and habitation. Along with the elements of particular crimes, the
text discusses the available defenses.
We then turn to the criminal prosecution process and have included three adjacent
chapters beginning with pretrial proceedings, moving on to the actual trial against the
defendant, and finishing with sentencing and post-trial proceedings. This approach
helps the student get a firm grasp on how the criminal procedure works.
Paralegals often play a crucial part in criminal proceedings because they contribute
so much to the discovery of evidence that may be favorable to the defendant or
prosecution. A paralegal may conduct interviews of witnesses or compile police
reports that may be used at the time of trial. Moreover, many paralegals conduct legal
research and assist in developing the legal theories that the defendant will rely on as
part of his/her defense. These examples are only a partial list of the many roles a
paralegal may play.
McGraw-Hill’s Criminal Law for Paralegals contains 14 chapters along with two
appendixes. In providing a hands-on approach to learning, each chapter has a recent,
applicable case opinion along with many ancillaries, including charts, tables, figures,
and exercises to aid in the student’s development.

TEXT DESIGN
Pedagogy
This text has numerous features that take advantage of the varying learning styles that
students use to gain knowledge. Students who apply their newly acquired knowledge often
retain it much better than those who do not. So we have designed the chapters to assure
students the opportunity to learn the appropriate legal concepts and the necessary vocabulary, develop their legal reasoning skills, and demonstrate their knowledge of the material. Each chapter contains the following features:
• A Day in the Life of a Real Paralegal—A scenario of what a usual day is like for
a paralegal at his/her position, often with a practical application designed to help
students build a specific skill set.
• Case Fact Pattern—A simple fact pattern with story and outcome.
• Research This—Hands-on assignment designed to develop his/her research skills.
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Preface

• Eye on Ethics—Student is presented with ethical issue(s) related to the subject of
the chapter.
• Surf ’s Up—Hands-on research presenting the student with numerous Web sites
by which to surf and gather material.
• Practice Tip—Alerts the student to a nuance of law or caveat to a rule.
• Case in Point—A significant case designed to expand on the topics discussed in
the chapter.
• Portfolio Assignment—Student is given an assignment by which to begin, create,
and add to a portfolio.
• Vocabulary Builders—Crossword puzzles for the student to complete using vocabulary words found in each chapter.
The text is written in clearly presented language that engages the student’s interest,
and presents information in a variety of styles.

OTHER LEARNING AND TEACHING RESOURCES
Supplements
The Online Learning Center (OLC) is a Web site that follows the text chapter by chapter. OLC content is ancillary and supplementary germane to the textbook—as students
read the book, they can go online to review material or link to relevant Web sites.
Students and instructors can access the Web sites for each of the McGraw-Hill paralegal
texts from the main page of the Paralegal Super Site. Each OLC has a similar organization. An Information Center features an overview of the text, background on the
author, and the Preface and Table of Contents from the book. Instructors can access
the Instructor’s Manual, PowerPoint presentations, and Test Bank. Students see the Key
Terms list from the text as flashcards, as well as additional quizzes and exercises.

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Chapter 1
Acknowledgments
Finally, special thanks need to be given to the reviewers who provided invaluable
feedback during the steps to completion of the final draft.
Ernest Davila
San Jacinto College

Kathryn L. Myers
Saint Mary-of-the-Woods College

Darren Defoe
Andover College

Richard Patete
Keiser College

Jane Breslin Jacobs
Community College of Philadelphia

Kathleen Reed
University of Toledo

Jennifer Labrozzi
Tidewater Tech

Debbie Vinecour
SUNY–Rockland

Steven Mallery
Eagle Gate College

Debbie Wicks
Pittsburgh Technical Institute

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McGraw-Hill’s Criminal Law for Paralegals offers students an exciting way to learn about many different
crimes and their elements, beginning with the different
sources of criminal law and proceeding right through to
the last step of a criminal trial, “Sentencing and Post-Trial
Procedures.” The text has numerous built-in, hands-on
assignments with a variety of exercises and cases to help
the student learn and enjoy the study of criminal law.
/Volumes/206/MHIL071/mhmhhe1%0/mhhe1ch01
The pedagogy of the book applies three main goals:
• Learning outcomes (critical thinking, vocabulary
building, skill development, issues analysis, writing
practice).
• Relevance of topics without sacrificing theory (ethical
challenges, current law practices, technology
application).
• Practical application (real-world exercises, practical
advice, portfolio creation).

CHAPTER OBJECTIVES

Chapter Objectives

Upon completion of this chapter, you will be able to:
• Understand the origins of criminal law.
• Explain the differences between civil and criminal law.
• Define the term crime and the theories of punishment associated with it.
• Identify the classifications of crimes.
• Discuss jurisdiction in criminal law.
Criminal law is the area of law that is perhaps most familiar to the layperson.
Television shows that are based in criminal law blanket the television networks.
Salacious criminal trials such as those for O.J. Simpson and Michael Jackson are
plastered across the news. Ordinary citizens are asked to serve on jury trials that
deal with people being tried for committing crimes. With this exposure, people
have become familiar with the basic aspects of criminal law. This chapter will
seek to supplement the paralegal student’s basic knowledge of criminal law and
provide an overview of this important area of the law.

x

Introduce the concepts students
should understand after reading
each chapter as well as provide
brief summaries describing the
material to be covered.

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A Day in the Life of
a Real Paralegal
Presents scenarios depicting what
a usual day is like for practicing
paralegals and provides practical
application designed to help
students build a skill set to prepare
for a career as a paralegal.

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A DAY IN THE LIFE OF A REAL PARALEGAL

Fran loves working as a criminal law paralegal. Recently, she was given an assignment to
research and investigate a client’s (Pedro) killing of a police officer. Pedro was arrested and is
currently being held downtown at the county jail. The supervising attorney gave Fran the following fact pattern based on the client’s viewpoint of the killing:
Pedro was walking down the street on his way to the local grocery store to pick up some
items for dinner. Pedro lives in a rough area downtown and often carries a small handgun, for
which he has a license. He hears a commotion in the alley between two apartment buildings.
Pedro walks slowly down the alley and sees a man and a woman struggling over a knife. The
man is grabbing the woman when Pedro walks toward them. The man, holding the woman
with one hand, turns toward Pedro with the knife and begins to walk toward Pedro. Pedro
becomes afraid, takes out the gun, and shoots the man. The man turns out to be an undercover
police officer who was apprehending the woman who had just robbed a liquor store and was
fleeing the scene with a deadly weapon.
Fran immediately begins to outline the case with facts from Pedro. Fran must determine
what issues
are53
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have, and finding any witnesses that haven’t come forward as yet.

Research This
Gives students the opportunity to
investigate issues more thoroughly
through hands-on assignments
designed to develop critical research
skills.

Practice Tip
Presents different nuances of the law
and caveats to rules to alert the
student to the intricacies of the law.

RESEARCH THIS
The California Supreme Court has wrestled with
the issue of when life begins in various cases. Two
cases that involve this issue are Keeler v. Superior
Court, 470 P.2d 617 (Cal. 1970), and People v. Davis,

872 P.2d 591 (Cal. 1994). Research both cases. How
did the courts rule in each of these cases? When
is a fetus considered a human being according to
both courts?

PRACTICE
TIP
Credit card fraud
occurs when a defendant, intending to
defraud the owner,
obtains title to personal property
through use of a
stolen or an unauthorized credit card.
Check fraud occurs
when a defendant,
intending to defraud
the owner, obtains
title to personal
property through the
use of stolen checks
or a check drawn on
an account without
sufficient funds.

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Case Fact Pattern

CASE FACT PATTERN
Timothy gets a thrill from starting fires. He loves to watch
them burn. He has set numerous fires during his life just to
watch them burn. Timothy lives in Southern California,
which is an area that has been prone to violent wildfires
that spread rapidly because of the Santa Ana winds that
blow through the area from time to time. Parts of Southern
California have been devastated by wildfires in the past, and
these fires have caused significant damage and injuries.
Timothy has set wildfires before just for the thrill. One
day, the Santa Ana winds began blowing heavily through
the Riverside County area of Southern California. Some of
the gusts clocked speeds of 80 mph. Timothy was thrilled
with the weather conditions. He knew that if he set a fire
today, it would spread rapidly due to the winds. The thought
of the fire burning made his heart pound with excitement.
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well as gasoline,
mhhe76965_ch08_112-124.indd
Timothy drove up into the Esperanza Canyon area of the
county near the desert. The area was heavily vegetated
with dry brush as the area had not received much rainfall
the previous year. Timothy drove to a somewhat desolate

area and started the fire. As he watched it burn, he felt the
thrill of the destruction.
The winds whipped the fire up rapidly. Fueled by dry
brush and high dry winds, the fire spread through thousands of acres. Firefighters made various stands against
the fire, only to retreat as it advanced fiercely and rapidly.
Five firefighters drove rapidly to a house to try to save it
from destruction. On the way, the fire overtook them and
they died. The fire charred over 40,200 acres, or 63 square
miles, before it was finally contained and extinguished.
Arson investigators were brought in to make a determination
as to the cause of the fire. It was determined that the fire
was caused by arson and Timothy had been seen by witnesses fleeing the scene.
After a thorough investigation by arson investigators as
well as the FBI and local police, Timothy
was arrested and
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charged with arson as well as felony murder due to the fact
that the firefighters lost their lives as a result of Timothy’s
actions.

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Eye on Ethics

EYE ON ETHICS
The prosecutor is an officer of the court. As
such, he/she is responsible to protect and
serve the judicial system. A prosecutor is required to turn over evidence to the defense
attorneys so the defense attorneys can properly prepare the defense of their client. Every
person is entitled to a proper and adequate
defense. If the prosecution fails to turn over
evidence to the defense, the entire case
against the defendant can be in jeopardy and

may be dismissed. It is very important for
prosecutors to act ethically and to be diligent
in dealing with the turning over of evidence
to the defense. To withhold evidence in a
criminal matter is a serious ethical offense.
Paralegals who work for prosecutors must
be very aware of these requirements as it
is the paralegal who is often gathering evidence that is ultimately going to be provided
to the defense.

• www.judiciary.state.n.j.us/criminal
• www.law.cornell.edu
• www.kentlaw.edu

xii

Recognizes the importance of bringing ethics to the forefront of paralegal education. It raises ethical issues
facing paralegals and attorneys in
today’s legal environment.

Surf’s Up

SURF’S UP
In order to learn more about complicity, visit the following
Web sites:

Describes simple fact patterns and
asks students to apply concepts
learned from the chapter to understand the legal issues at hand.

•
•
•
•

www.lawspirit.com
www.freedictionary.com
www.answers.com
www.quizlaw.com.

Presents students with numerous
and varied Web sites to “surf ” and
gather additional information on the
important legal concepts and issues
discussed in each chapter.

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Walkthrough Head
Chapter Summary
Provides a comprehensive review of
the key concepts presented in the
chapter.

Key Terms
Used throughout the chapters are
defined in the margin and provided
as a list at the end of each chapter.
A common set of definitions is used
consistently across the McGraw-Hill
paralegal titles.

In order to convict a person of a crime, the prosecutor must prove the elements of
the crime beyond a reasonable doubt. Each crime consists of four basic elements:
actus reus—a guilty act; mens rea—a guilty mind; concurrence—a guilty act and
guilty mind that exist at the same time; and causation—a harmful result.
An act involves physical behavior by the defendant. The mental process of the
crime is not part of the act. Only the physical act that gives rise to the crime is considered the actus reus. The actus reus is known as the evil act of the defendant. The
actus reus of a crime causes a social harm that constitutes the crime. The actus reus
of a crime is important because it enables society to make inferences regarding the
defendant’s state of mind based on her actions. However, in order for the actions of
the defendant to qualify as the actus reus of a crime, the defendant must have committed voluntary actions.
Voluntary acts are necessary in order for the defendant’s actions to be considered
a criminal act. A voluntary act is an act that is done with a conscious exercise of free
will. It includes muscular contractions that are willed by the defendant. The law will
not punish an involuntary act such as a reflexive movement or spasm. Likewise, criminal liability will not attach for acts performed while a defendant is unconscious or
sleepwalking. Therefore, in order for a defendant to be blameworthy, she must have
committed a voluntary act.

Aggravated robbery
Asportation
Carjacking
Commingling
Conversion
Counterfeiting
Embezzlement
Extortion
False pretenses
Fiduciary
Forgery
Intangible property
Larceny
Larceny by trick

Owner
Personal property
Possession
Puffing
Real property
Receiving stolen property
Robbery
Signatory
Tangible property
Theft
Title
Trade secret
Trespassory taking
Uttering

Summary

Key Terms

Review Questions
and Exercises
Emphasize critical-thinking and
problem-solving skills as they relate
to criminal law. The Review Questions focus on more specific legal
concepts learned in each chapter.
The Exercises introduce hypothetical
situations and ask students to determine the correct answers using
knowledge gained from studying
topics in each chapter. Both sets of
questions are found at the end of
each chapter.

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

What is the definition of a homicide?
List the differences between justifiable and excusable homicide.
Why is it difficult to determine when life begins for purposes of murder?
Identify and define the different types of murder.
What is malice aforethought?
What is the purpose of the felony murder rule?
List the typical felonies that will qualify a killing as first degree murder under
the felony murder rule.
Describe the difference(s) between first and second degree murder.
List the elements of manslaughter.
What is the difference between voluntary and involuntary manslaughter?
Define the heat of passion.
What is a cooling-off period and when does it apply?
What is premeditation and why is it important?
When is someone considered dead under the law?
What is a depraved heart killing?

Review
Questions

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Walkthrough Head
Portfolio Assignments

PORTFOLIO ASSIGNMENT
When judging obscenity, the trial court may instruct the jury to apply “community standards”
without specifically defining the term. States are allowed to establish statewide standards for
judging obscenity. Research the standards for your home state and write a memo discussing
them to include in your portfolio.

Vocabulary Builders

Vocabulary Builders
1

2

Provides crossword puzzle in each chapter
that uses the key terms and definitions
from that chapter to help students become
more proficient with the legal terminology.

3
4

5

6

7
9

Ask students to use the skills mastered in
each chapter to reflect on major legal
issues and create documents that become
part of the paralegal’s portfolio of legal
research. The Portfolio Assignments are
useful both as reference tools and as
samples of work product.

8

10

11

12

13

Instructions
Use the key terms from this chapter to fill in the answers to the crossword puzzle.
NOTE: When the answer is more than one word, leave a blank space between words.
ACROSS
1. The crime of inducing or encouraging another to commit a crime.
6. An incipient crime; an act that generally leads to a
crime.
9. The act or process of enticing or persuading another
person to take a certain course of action.
11. By agreement, parties work together to create an illegal
result, to achieve an unlawful end.
12. Affecting or obligating both parties.
13. A single conspiracy in which each person is responsible
for a distinct act within the overall plan.

DOWN
2. Identifiable commission or omission, an intentional tort
requirement.
3. A conspiracy in which a single member or group separately agrees with two or more other members or
groups.
4. The doctrine that an agreement by two or more persons to commit a particular crime cannot be prosecuted
as a conspiracy if the crime could not be committed except by the actual number of participants involved.
5. One-sided, relating to only one of two or more persons
or things.
7. Abandonment of effort to commit a crime.
8. To actually try to commit a crime and have the actual
ability to do so.
10. To cease an activity.

CASE IN POINT

STATE of West Virginia, Plaintiff Below, Appellee
v.
Michael DOONAN, Defendant Below, Appellant
640 S.E.2d 71
Supreme Court of Appeals of
West Virginia.
No. 33052.
Submitted: Nov. 1, 2006.
Decided: Dec. 1, 2006.
Background: Defendant was convicted in the Magistrate Court
of driving under influence of alcohol (DUI). He appealed. The
Circuit Court, Wood County, George W. Hill, J., affirmed. Defendant appealed.
Holdings: The Supreme Court of Appeals, Davis, C.J.,
held that:
1. magistrate court could not impose a duty of reciprocal discovery on defendant based on statute governing a prosecutor’s duties to disclose certain evidence to a defendant
upon request;
2. defendant had no duty to provide his expert-witness list to
the state, and thus magistrate court could not exclude defense expert from testifying at trial as sanction for defendant’s failure to provide list;
3. error in magistrate court’s exclusion of defense expert’s
testimony was reversible error;
4. copy of printout of defendant’s breath-test results was inadmissible under rule governing admissibility of duplicates; and
5. error in magistrate court’s admission of copy of printout

xiv

requested to perform three different field sobriety tests: walk
and turn, horizontal gaze nystagmus, and the one-legged stand.
After Mr. Doonan failed all three tests, he was transported to
the police station where his blood alcohol content was measured by breathalyzer at .134, which was over the legal limit.
Mr. Doonan was charged with first offense of driving under
the influence pursuant to W. Va. Code § 17C-5-2 (2004) (Repl.
Vol. 2004). On November 5, 2004, Mr. Doonan was found guilty
by a magistrate court jury of first offense of driving under the
influence, and was sentenced to serve forty-eight hours in the
North Central Regional Jail. Mr. Doonan appealed his conviction to the circuit court, arguing it was improper to exclude his
expert witness and that it was error to admit an illegible copy
of his DUI printout. The circuit court recognized that some errors existed in the underlying court, but found that the errors
were harmless and that there was sufficient evidence to uphold Mr. Doonan’s conviction. This appeal then followed.
[Text omitted]

III DISCUSSION

Case in Point
At the end of each chapter exposes students to real-world examples and issues
through cases chosen to expand on key
topics discussed in chapter.

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Chapter
Brief
Contents
1
Chapter 12 Criminal Procedures Leading Up

Preface vii

to Trial

Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11

Sources of Criminal Law 1
Constitutional Requirements for
Criminal Procedure 16
Elements of the Criminal Act 38
Homicide 51
Crimes against the Person 65
Crimes Involving Property 81
Crimes against Habitation 98
Complicity 112
Inchoate Crimes 125
Defenses 140
Crimes against the State, Public
Order, and Morality 156

172

Chapter 13 An Overview of a Criminal
Trial 189
Chapter 14 Sentencing and Post-Trial
Procedures 204

APPENDIXES
A

The United States Constitution and
Bill of Rights 218

B

List of Hearsay Exceptions

GLOSSARY
INDEX

235

238

247

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Chapter
Table
of 1Contents
Preface

Actus Reus

vii

Chapter 1
Sources of Criminal Law

1

Origins of Criminal Law 2
Differences between Criminal and Civil 3
Tort versus Crime 4
Defining Crime and Punishment 5
Theories and Justifications of Punishment 6
Classification of Crimes 6
Jurisdiction 7

Mens Rea 42
Concurrence 44
Causation 45
Summary 45

Chapter 4
Homicide 51
Types of Homicides
Murder 52

Federal 7
State 8

Summary

39

Voluntary Act 40
Involuntary Act 40
Omission to Act 41

First Degree Murder 54
Second Degree Murder 55

9

Chapter 2
Constitutional Requirements for Criminal
Procedure 16

Felony Murder 55
Manslaughter 56

The Constitution 16
Exclusionary Rule 17
First Amendment 18
Fourth Amendment 19

Suicide 57
Summary 58

Arrest 20
Investigatory Detentions 20
Stop and Frisk 21
Hot Pursuit, Transitory Evidence, and Other
Emergencies 21
Administrative Inspections and Searches 21
Border Searches 21
Automobile Stops 22
Plain View 22
Consent 22
Search with a Warrant 23
Wiretapping and Eavesdropping 23
Confessions 24

Fifth Amendment

24

Miranda Warnings

24

Chapter 3
Elements of the Criminal Act
Elements of a Crime

38

Voluntary Manslaughter 56
Involuntary Manslaughter 57

Chapter 5
Crimes against the Person

38

65

Battery 65
Assault 66
Mayhem 67
Stalking 67
Kidnapping 68
False Imprisonment 69
Hate Crimes 70
Sexual Offenses 70
Rape 70
Sodomy 72

Summary

73

Chapter 6
Crimes Involving Property

Sixth Amendment 26
Eighth Amendment 27
Summary 27

xvi

51

Larceny 81
Embezzlement 82
False Pretenses 83
Larceny by Trick 84
Robbery 85

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Table of Contents

Receiving Stolen Property
Forgery 86
Extortion 87
Cybercrimes 87
Summary 88

Duress 148
Entrapment 149
Mistake of Fact 149

86

Summary

Chapter 7
Crimes against Habitation

98

Burglary 98
Criminal Trespass 100
Arson 101
Malicious Mischief 104
Summary 105

Chapter 8
Complicity

Parties to Crime 112
Accomplice 114
Accessory after the Fact 117
Conspiracy 118
Summary 118

Incomplete Crimes
Attempt 126

Chapter 12
Criminal Procedures Leading Up to
Trial 172

125
125

Mens Rea of Attempt 126
Actus Reus of Attempt 126
Failure to Complete the Crime

Conspiracy 129
Parties to a Conspiracy
Defenses 131

131

Solicitation 132
Summary 134

Chapter 10
Defenses 140
Criminal Responsibility
Infancy 141
Insanity 141
Diminished Capacity
Intoxication 145

140

144

Justification and Excuse
Consent 146
Self-Defense 146
Defense of Others 147
Defense of Property 147
Force in Making an Arrest
Necessity 148

Chapter 11
Crimes against the State, Public Order,
and Morality 156
Bribery 156
Perjury 157
Contempt 158
Treason 159
Espionage 160
Terrorism 160
Disorderly Conduct 161
Riot 162
Vagrancy and Loitering 162
Gang Activity 162
Obscenity 163
Prostitution 163
Gambling 164
Summary 165

112

Chapter 9
Inchoate Crimes

149

145

128

Arrest 172
Booking 173
Investigation after Arrest 173
Identification 174
The Complaint 174
Initial Appearance 174
Preliminary Hearing 176
Grand Jury 176
Pretrial Motions 177
Discovery 178
Trial 180
Summary 181

Chapter 13
An Overview of a Criminal
Trial 189
Differences between Criminal Trials and
Civil Trials 189
Jury Selection 190
Opening Statements 193
Evidence 193
Types of Evidence

148

194

Prosecution and Defense Presentations and
Examination of Witnesses 195

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xviii Table of Contents

APPENDIXES

Jury Instructions, Deliberations, and
Verdict 196
Summary 198

Chapter 14
Sentencing and Post-Trial Procedures
Sentencing 204
Procedural Rights during Sentencing 205
Sentencing Systems 206
Death Penalty 207
Appeal 209
Habeas Corpus 210
Summary 210

A
204

The United States Constitution
and Bill of Rights 218

B
List of Hearsay Exceptions

Glossary
Index

238

247

235

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Chapter 1
Sources of Criminal Law
CHAPTER OBJECTIVES
Upon completion of this chapter, you will be able to:
• Understand the origins of criminal law.
• Explain the differences between civil and criminal law.
• Define the term crime and the theories of punishment associated with it.
• Identify the classifications of crimes.
• Discuss jurisdiction in criminal law.
Criminal law is the area of law that is perhaps most familiar to the layperson.
Television shows that are based in criminal law blanket the television networks.
Salacious criminal trials such as those for O.J. Simpson and Michael Jackson are
plastered across the news. Ordinary citizens are asked to serve on jury trials that
deal with people being tried for committing crimes. With this exposure, people
have become familiar with the basic aspects of criminal law. This chapter will
seek to supplement the paralegal student’s basic knowledge of criminal law and
provide an overview of this important area of the law.

A DAY IN THE LIFE OF A REAL PARALEGAL
Tony is a public defender who is working for the county. Sarah is Tony’s paralegal. Tony does not
know what he would do without Sarah’s assistance She is invaluable to him not just for her
expertise, but also because she works well with his style of practicing law. For example, Tony
was just in trial in the county courthouse on a fairly well-publicized murder case. Tony was arguing a point of law that had recently been cited in the Supreme Court and Tony felt that he was
making his point to the judge. He was caught up in the heat of his argument when the judge
interrupted him to inquire if Tony had a copy of the case that he was arguing. Tony explained to
the judge that he did not but that he could get one. The judge recessed the trial for lunch and
told Tony to bring a copy of the case back with him after lunch. Tony did not panic. He knew that
Sarah would be there for him. Tony called Sarah on his cell phone. Sarah knew the case that Tony
was referring to as she had just helped him research it a couple of days before. Sarah asked Tony,
“When do you need this by?” Tony told her 20 minutes and that she needed to bring a copy of
the case to the courthouse. After uttering some expletives, Sarah said she would see him in a
few minutes. Sarah proceeded to rapidly pull the case up on her computer and print it out. She
made several copies just in case Tony needed them, got in her car, and raced to the courthouse.
Sarah arrived just as the judge was calling the court into session. Tony was relieved. He handed
the judge and the opposing party the case. The next day, when the judge made her ruling, she
stated that she was basing her ruling on the precedent set by the case that Tony had been arguing. Thanks to Sarah’s fast reaction to Tony’s request, Tony was successful in court.
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Sources of Criminal Law

ORIGINS OF CRIMINAL LAW

common law
Judge-made law; the
ruling in a judicial opinion.

crime
Any act done in violation
of those duties that an
individual owes to the
community, and for the
breach of which the law
has provided that the
offender shall make
satisfaction to the public.

statutory law
Derived from the
Constitution in statutes
enacted by the legislative
branch of state or federal
government; primary
source of law consisting
of the body of legislative
law.

Constitution
The organic and fundamental law of a nation or
state, which may be
written or unwritten,
establishing the character
and conception of its
government, laying the
basic principles to which
its internal life is to be
conformed, organizing the
government, regulating
functions of departments,
and prescribing the extent
to which a nation or state
can exercise its powers.

Bill of Rights
Set forth the fundamental
individual rights government and law function to
preserve and protect; the
first ten amendments to
the Constitution of the
United States.

case law
Published court opinions
of federal and state appellate courts; judgecreated law in deciding
cases, set forth in court
opinions.

Criminal law develops from the customs and traditions of people in a society. Those
customs and traditions represent the behavior that is considered acceptable for that
society. Each society develops its own norms of behavior based on the customs and
traditions of its people. Over time, these customs and traditions became more formalized as rules, and from these widely recognized rules developed common law. A common law crime is one that was defined and enforced by the judicial system of a
society when there were no statutes to define the crime.
In the United States, most criminal law principles can trace their origins back to
English common law (except in the state of Louisiana, where many of the state laws
were based on French or Spanish legal concepts as a large proportion of the settlers in
Louisiana were from those two countries). The State of Louisiana practices Napoleonic
codified law. The English colonists brought their common laws with them when they
came to the Americas. After the American Revolution, the initial 13 states adopted
some of the English common laws, but most of the states enacted statutes that defined
criminal acts and established criminal procedures. The statutes enacted by state legislatures have their roots in common law and form the basis of state statutes. A murder is
still a murder; a burglary is still a burglary. However, the state legislatures codified and
added elements to the state statutes in order to modernize them to fit the public need
in that state. Criminal statutes and codes that have been enacted by the legislatures are
referred to as statutory law. The United States also has enacted criminal statutes and
these statutes can be located under the U.S. Criminal Code. Therefore, statutory law
exists both at the state and federal levels.
Since the enactment of statutes by the initial 13 states, there are essentially no
common law crimes in the United States. Federal criminal law is governed entirely by
statute. All states have statutes, ordinances, or regulations that prohibit some type of
action and label it criminal. State statutes are the primary source of criminal law and
are usually referred to as penal codes.

RESEARCH THIS
The codification of criminal law has been present
for thousands of centuries. One of the first
known criminal codes was known as the Code of

Hammurabi. Research the Code of Hammurabi.
What areas of law are covered in the code? How
are victims addressed under the Code?

Statutory law is not the only law that governs criminal law. Both the U.S. Constitution as well as state constitutions set forth basic liberties to which all citizens are
entitled. For example, the Sixth Amendment of the Bill of Rights guarantees a person
who has been accused of a crime the right to a speedy trial. These rights as they are
enumerated in the U.S. Constitution are available to all citizens of the United States.
State constitutions also exist and the rights stated in each state’s constitution are
available to citizens of that particular state.
Another important area of criminal law is that of judiciary opinions or case law.
Case law is law that is made based on the decisions of the court, usually the appellate
or supreme courts of a state or of the federal government. A substantial portion of
law is case law. Court or judiciary opinions are interpretations by the court of the
meaning of constitutional provisions or statutes as they pertain to a particular case

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Differences between Criminal and Civil

UNITED STATES SUPREME COURT

FIGURE 1.1
Criminal Court
Structure

United States Court of Appeals

State Supreme or Superior Courts

United States District Courts

State Intermediate Appellate Courts

United States Magistrate

State Trial Courts

PRACTICE
TIP

State Lower Criminal Courts

In 1962, the American Law Institute
completed the
Model Penal Code.
The Model Penal
Code was developed by a group of
judges, lawyers,
and scholars and
was designed to
codify as a single
compilation the
general criminal
law of the United
States. Since 1962,
approximately twothirds of the states
have adopted criminal codes that reflect the guidelines
set forth in the
Model Penal Code.
The Model Penal
Code used now was
last updated in 1981.
It provides information on areas of
criminal law and
can be a great resource. However,
the Model Penal
Code is just that—a
model. It is not to be
cited as authority
when writing legal
documents or making legal arguments.
It should be viewed
as a reference and
a guide.

being heard before them in court. Courts may be asked to interpret the meaning of
the words in a code, the relationship between various codes as they pertain to the
matter at hand, the legislative intent at the time the code was enacted, as well as
whether or not a constitutional provision is violated by applying the code. The court
will implement the doctrine of stare decisis when ruling on a particular matter. It
will attempt to follow the decisions of higher courts that have ruled in similar matters.
The doctrine of stare decisis advocates that accepting and applying established legal
principles of cases that have been decided previously will help to provide security and
certainty to the legal system. See Figure 1.1 for a Typical Criminal Law Structure.
Administrative law provides another source of criminal law. Administrative law is
the body of law that regulates bureaucratic managerial procedures and is administered
by the administrative agencies of the government. Administrative law defines the powers that are given to administrative agencies. This type of law will generally govern
areas such as international trade, pollution, and taxation. For example, the Internal
Revenue Service is an administrative agency that has been formed to govern the area
of federal taxation. If you fail to pay your taxes, you have violated the administrative
law as regulated by the IRS and you can be criminally prosecuted.
Court rules are used to provide standard procedures for handling the administration
of cases as they proceed through the court system. They were developed to regulate
processes in the court system that are not regulated by other types of law. Court rules
regulate such items as how a case may be brought to court, the type of paperwork
required during particular court processes as well as how a jury is selected. For most
areas of court administration, a court rule exists to regulate it.

DIFFERENCES BETWEEN CRIMINAL AND CIVIL
Criminal law differs from civil law in many ways. The most important difference is
that crimes involve acts that are considered public wrongs. Criminal acts violate the
norms of socially acceptable behavior and, therefore, are considered to be acts against
the public even if the act was committed against an individual. In civil law, a violation
is considered a private wrong. A private wrong deals with a violation of relationships
between people. In a criminal case, a jury must determine an accused’s guilt or innocence. The jury determines if the accused is guilty of the crime beyond a reasonable
doubt before rendering a verdict. The burden of proof is on the prosecutor to prove
the guilt of the defendant. In a civil matter, a jury or judge may determine whether
or not a defendant is liable for the damages or injuries sustained by the injured party.

3

stare decisis
From the Latin, “stand by
the decision.” The judicial
process of adhering to
prior case decisions.

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Sources of Criminal Law

FIGURE 1.2
Criminal and Civil
Law Comparison

Criminal

Civil

Type of violation
Category of responsibility
Standard of proof

Public wrong
Guilt
Beyond a reasonable doubt

Burden of proof
Legal action initiation

State/prosecutor
Booking/arraignment,
complaint
People/public
Dismissal, judgment/
sentence
Punishment

Private wrong
Liability
By a preponderance of
the evidence
Plaintiff
Filing of a lawsuit

administrative law
The body of law governing
administrative agencies,
that is, those agencies
created by Congress or
state legislatures, such as
the Social Security
Administration.

Initiator
Resolution
Remedy

Private individual/entity
Judgment, settlement,
dismissal
Money judgment

court rules
Regulations with the force
of law governing practice
and procedure in the various courts.

beyond a
reasonable doubt
The requirement for the
level of proof in a criminal
matter in order to convict
or find the defendant guilty.
It is a substantially higher
and more-difficult-to-prove
criminal matter standard.

damages
Money paid to compensate for loss or injury.

preponderance of
the evidence
The weight or level of persuasion of evidence
needed to find the defendant liable as alleged by
the plaintiff in a civil matter.

arrest
The formal taking of a
person, usually by a
police officer, to answer
criminal charges.

booking
Administrative step taken
after an arrested person
is brought to the police
station that involves entry
of the person’s name, the
crime for which the arrest
was made, and other relevant facts on the police
blotter.

arraignment
A court hearing where the
information contained in
an indictment is read to
the defendant.

defendant
The party against whom a
lawsuit is brought.

The jury will determine liability by a preponderance of the evidence. It is up to the
plaintiff in a civil action to prove that the defendant is liable.
In order to end up in court, a criminal law action must be initiated by an arrest,
booking, charging, and arraignment of the accused person. A civil law action is initiated
by the filing of a lawsuit in the court. In criminal law, the defendant always has to
show up in court. In a civil action, the defendant might never show up in court.
Criminal actions are brought against the accused by the People. For example, criminal
actions could be brought by the People of the State of California or the People of the
United States. The action is brought by the People as it represents a wrong against the
public and the public is referred to as the People. This differs from civil actions that are
brought by private individuals and entities against other private individuals or entities,
for example, John Smith v. Ted Anderson or Mildred McConogue v. Bright Corporation.
The attorney who is prosecuting a criminal action is called a prosecutor, district
attorney, or attorney general, or has some other similar title as a person who represents
the public interest. In a civil action, the prosecuting attorney is called the attorney
for the plaintiff.
The attorney for the defendant in a criminal action can be a private attorney or a
public defender. The attorney for the defendant in a civil action is usually a private
attorney and is referred to as the attorney for the defendant.
In criminal law, the resolution of the action ends with a dismissal, conviction, sentencing, or plea bargain. In civil law, the resolution of the action is by judgment,
settlement, or dismissal.
In a criminal action, the defendant faces some type of punishment, be it jail time,
community service, or probation. In a civil action, the defendant usually faces a
money judgment. (See Figure 1.2.)

TORT VERSUS CRIME
A crime is not a tort. A crime is considered an offense against society as a whole. When
a person is punished for committing a crime, he is punished for committing a wrong
against society. For example, a person is being tried in state court for committing a
murder. The prosecutor works for the state. The state represents the people or the public
at large, not an individual. The interests of society are served when the offending person
is punished for committing the crime. When a criminal case is being prosecuted, the rules
of criminal procedure dictate how the case is to proceed. As stated previously, the burden
of proof in a criminal case is on the prosecutor to prove the guilt of the defendant
beyond a reasonable doubt. In a tort action, the burden of proof is the responsibility of
the plaintiff and is by a preponderance of the evidence. The plaintiff must prove that
the defendant is liable for their damage or injury.
A tort does have some similarities to crimes. For example, both are considered to
be actions against societal utility or public policy. The intention of the perpetrator is

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Defining Crime and Punishment

Purpose
Theory of offense
Initiating party
Verb/noun
Category of responsibility
Standard of proof
Procedural rules
Domain of law

Torts

Crimes

To restore the victim back
to whole/compensation
Offense to individual
The victim
Sue/suit
Liability
By a preponderance
of evidence
Civil rules
Civil

Punishment

5

FIGURE 1.3
Torts versus Crimes
plaintiff

Offense to society
The state
Try/trial
Guilt
Beyond a reasonable
doubt
Criminal rules
Criminal

The party initiating legal
action.

dismissal
An order or judgment
finally disposing of an
action, suit, motion, or
other without trial of the
issues involved.

conviction

at the heart of an action for both crimes and torts. In a crime, the question is whether
the intent was malicious. In a tort, the intent is looked at slightly differently to
determine if it is blameworthy. (See Figure 1.3.)

DEFINING CRIME AND PUNISHMENT
Criminal law defines what constitutes a crime. Criminal law establishes what type of
conduct is prohibited and what punishment may be imposed for violating its mandates. Criminal law establishes what degree of intent is required for criminal liability.
In addition, criminal law sets out the defenses to criminal charges that may be asserted
by the accused.
Crime is a broad term for violations of the law, punishable by the state, and codified by the legislatures. Crimes are typically distinguished by the following:

Results from a guilty
finding by the jury in a
criminal trial.

sentencing
The post-conviction stage
of the criminal justice
process in which the
defendant is brought
before the court for
imposition of sentence.

plea bargain

• A crime is an offense against society as a whole.

The process whereby the
accused and the prosecutor in a criminal case work
out a mutually satisfactory
disposition of the case
subject to court approval.

• Criminal defendants are prosecuted by the state, not by private parties.

judgment

• The penalties include fines, imprisonment, and, in some cases, death.
• Criminal law is primarily statutory law.

The court’s final decision
regarding the rights and
claims of the parties.

• A criminal act does not necessarily involve a specific victim.

settlement

It is possible for the same act to constitute both a crime and a civil action.

A negotiated termination
of a case prior to a trial or
jury verdict.

CASE FACT PATTERN
O.J. Simpson used to be an all-star football player for the
Buffalo Bills. He was beloved by millions of fans for his skill
on the football field and his apparent image as a good guy.
After his professional football career had ended, O.J. became a sportscaster as well as a spokesperson for many
companies. O.J. was married to Nicole Simpson, and together they had two children. O.J. and Nicole’s marriage became stormy, and eventually they divorced. There were
rumors of abusive behavior toward Nicole by O.J. One night,
Nicole Simpson and her friend, Ron Goldman, were brutally
murdered on the front steps of Nicole’s home in Brentwood, California. After an infamous low-speed chase down
the freeways of Southern California, O.J. Simpson turned
himself in to the police and was arrested for the murders.
What followed was one of the most widely publicized court
trials in California history, consummating in the acquittal of
O.J. Simpson for the murders. However, once Simpson
was acquitted at the criminal trial, the families of Nicole
Simpson and Ron Goldman sued O.J. Simpson in civil court

for their wrongful deaths. After having been tried and acquitted in a criminal court, O.J. now faced similar charges in
a civil court. In the criminal court, the jury could not find
O.J. guilty beyond a reasonable doubt. Who could forget
the famous line of Johnny Cochran, O.J.’s defense attorney,
“If it doesn’t fit, you must acquit,” when referencing the fact
that O.J.’s hand did not fit into the glove that was allegedly
worn by the killer. In civil court, however, O.J.’s liability
would be determined based on a different standard of proof:
by a preponderance of the evidence. Under this standard,
the jury had to determine if the evidence led them to conclude that it was more probable than not that O.J. committed the murders. O.J. was found liable by a preponderance
of the evidence. The families of Nicole Simpson and Ron
Goldman won a civil judgment against Simpson for millions
of dollars for the wrongful deaths of Nicole and Ron. In the
case of O.J., the same act led to both a crime and a civil action, but the two actions concluded very differently.

FPO

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THEORIES AND JUSTIFICATIONS OF PUNISHMENT
deter
To turn aside, discourage,
or prevent from acting.

The criminal law justice system uses punishment as a preventative tool. That is, it is
hoped that the prospect of punishment (imprisonment, fines, even death) will deter
criminal action. Several theories of punishment are used to penalize criminal behavior. Some of those theories are the following:
• Specific deterrence seeks to discourage individuals already convicted of crimes
from committing future crimes. The arrest and conviction of an individual shows
that individual that society has the capability to detect when a crime has been
committed and is willing to punish those who commit crimes.
• General deterrence attempts to deter all members of society from engaging in
criminal activity. A general deterrence punishment may deter persons other than
the criminal from committing similar crimes because they would be in fear of
incurring the same type of punishment.

incapacitation
Punishment by imprisonment, mutilation, or death.

rehabilitation
Restoring a person to his
or her former capacity.

retribution
Punishment based on
just deserts.

• Incapacitation, also referred to as restraint, serves to prevent criminal conduct by
restraining those who have committed crimes. Criminals are restrained in jail or
prison or are sometimes executed. Criminals who are restrained are incapable of
causing harm to the general public due to the restraint. This theory is often the
rationale for long-term imprisonment of individuals who are believed to be
beyond rehabilitation.
• Rehabilitation is the theory that if society provides the opportunity, a criminal
can be reformed into a person who, if returned to society, will conform his
behavior to societal norms. The belief is that if the criminal is exposed
to educational and vocational programs, treatment, counseling, and other
measures, it is possible to alter the individual’s behavior to conform to societal
norms.
• Retribution is yet another method of punishing criminals. Punishment through
the criminal justice system is society’s method of avenging a wrong. The idea
that one who commits a wrong must be punished has been handed down from
ancient times. Therefore, punishing those who harm others has the effect of promoting social order by preventing undesirable conduct.
In the United States, more than one million people each year are arrested for crimes
and enter the criminal justice system. Paralegals specializing in criminal law may work
for prosecutors, public defenders, private law firms, or attorneys specializing in criminal defense.

CLASSIFICATION OF CRIMES
malum in se
An act that is prohibited
because it is “evil in
itself.”

malum prohibitum
An act that is prohibited
by a rule of law.

moral turpitude
An act or behavior that
gravely violates the sentiment or accepted standard of the community.

Crimes can be classified by the type of conduct that is involved. Crimes that are classified by conduct fall into one of two categories: malum in se or malum prohibitum.
Crimes that are considered malum in se are those crimes that are considered inherently evil. They are inherently evil either because they involve criminal intent as an
element of the criminal action or because they involve a criminal action of moral
turpitude. Examples of crimes that would be considered malum in se are murder, rape,
robbery, burglary, arson, and larceny; they would be considered evils by society even
if no law had been passed by the legislature making them prohibited.
That a crime is considered malum prohibitum means that the conduct is prohibited,
but not necessarily inherently evil. The action is wrong only because the law prohibits it. For example, it is against the law to fail to pay money into a parking meter,
but the act is not inherently evil.

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7

Crimes also can be categorized by the punishment that the accused faces if convicted of the crime. When crime based on punishment is categorized, the various
crimes fall into the following classifications:
• Capital Felony—the penalty for a capital felony is death in states that have a
death penalty statute or life in prison with or without the possibility of parole in
states that do not have a death penalty statute.
• Felony—a serious crime that carries a penalty of imprisonment for more than
one year in a state prison and/or the assessment of fines.
• Gross misdemeanor—crimes that are punishable by imprisonment for six months
to one year in a state jail and/or a fine.
• Misdemeanor—a less serious crime for which the penalty includes imprisonment
for a period of less than one year and/or a fine.
• Petty misdemeanor—also known as a violation or an infraction, usually not considered crimes and are punishable by fines. Petty offenses or infractions are the
least serious kind of criminal or quasi-criminal wrong and include offenses such
as running a stop sign or a building code violation.

JURISDICTION

felony
A crime punishable by
more than a year in prison
or death.

misdemeanor
A lesser crime punishable
by less than a year in jail
and/or a fine.

infraction
A violation of a statute for
which the only sentence
authorized is a fine and
for which violation is expressly designated as an
infraction.

Federal
Jurisdiction is the power of a court to exercise its authority over a person or the subject
matter of a particular case. Jurisdiction over the subject matter refers to the authority
that a court has to decide matters of that type. For example, tax courts have jurisdiction
over cases that have the subject matter of taxes. If a court does not have jurisdiction,
then it has no authority to act on the matter. Federal jurisdiction is limited to certain
types of crimes. If a federal law defines a certain type of action as a crime, then it is a
federal crime.
Generally, criminal jurisdiction exists in federal courts for crimes that occur outside
the jurisdiction of a state, crimes involving interstate commerce or communications,
crimes interfering with the operation of the federal government or its agents, and crimes
directed at citizens or property located outside of the United States. The federal government has extensive power to enact criminal codes that govern conduct in the District
of Columbia, the territories, and federal courthouses, national parks, and other areas
controlled by the federal government. The federal government also has the power to
criminalize conduct by U.S. citizens abroad such as for treason. The federal government’s authority to criminalize conduct also extends to ships and airplanes. For example,
after the September 11, 2001, terrorist attacks on the World Trade Center and the

EYE ON ETHICS
Ethics is a very important part of law. As a legal
assistant, you are an extension of the attorney
who is your supervisor. It is always important
to conduct yourself in the most ethical manner
possible. Although unethical conduct by a legal
assistant does not necessarily result in punishment to the legal assistant, it can lead to disbarment or other disciplinary action of the
supervising attorney. Always conduct yourself
under the same codes of ethical conduct that

apply to the attorneys for whom you work. For
example, it is unethical for a paralegal to discuss the facts or nature of the cases that they
are working on. This is especially true in the
area of criminal law. Why? Because information of potential crime(s) that a client may or
may not have committed is private information
and could prejudice the client’s case. It is important to keep all information confidential.

jurisdiction
The power or authority of
the court to hear a particular classification of case.

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SURF’S UP
The Internet provides a wealth of information concerning
criminal law. There are many legal Web sites where you can
find criminal law information. Some of these sites include

• www.findlaw.com.
• www.alllaw.com.
• www.megalaw.com.

Pentagon, the federal government began to place air marshals on airlines in order to
arrest and prosecute persons who violate federal statutes while in the air.

State
Every state has an inherent authority to promote and protect the health, safety, and
welfare of its citizens. Typically, the state in which the crime was committed assumes
jurisdiction over the accused and prosecutes the accused within its court system. The
following are instances in which a state can assume jurisdiction over an accused:
• The offense is committed wholly or partly within the state.
• The conduct outside the state constitutes an attempt or conspiracy to commit an
offense within the state, plus the offense is inside the state.
• The conduct within the state constitutes an attempt, solicitation, or conspiracy
to commit, in another jurisdiction, an offense under the laws of both the state
and such other jurisdiction.
• An offense based on the omission of performance of a duty imposed by the law
of a state is committed within the state, regardless of the location of the accused
at the time of the omission of the act.

A DAY IN THE LIFE OF A REAL PARALEGAL
Paralegals who have knowledge of criminal law can find employment in a variety of capacities.
Many work for private attorneys who are hired by their clients to represent them in criminal
matters. District attorneys, prosecuting attorneys, and attorney general offices all hire paralegals
to assist with legal work. A typical job duties description for a criminal paralegal might look
like the following:

PRIMARY DUTIES AND RESPONSIBILITIES
• Provides assistance in interviewing and research for attorneys.
• Conducts interviews with witnesses to prepare them for testifying in court.
• Compiles list of witnesses and submits for subpoenas to ensure appropriate witnesses are
present at next hearing.
• Contacts witnesses to ensure attendance in court.
• Attends court hearings to assist attorneys with research and witnesses.
• Assists in drafting pleadings to have appropriate orders and documents ready for hearing.
• Coordinates the scheduling of expert witnesses to ensure testimony of appropriate experts
at hearing.
• Performs preliminary screening and review of criminal complaints to prepare criminal
charges in cases.

SUPERVISORY RESPONSIBILITIES
This job has limited supervisory responsibilities. Provides work direction, training, and work
oversight to law interns and clerical staff.

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Summary

Criminal law developed from the customs and traditions of people in a society. The
customs and traditions represented the behavior that was considered acceptable for
that society. Each society developed its own norms of behavior based on the customs
and traditions of the people. Over time, these customs and traditions became more
formalized rules and from these widely recognized rules developed common law. A
common law crime is one that was created and enforced by the judicial system of a
society when there were no statutes that defined the crime.
Criminal law differs from civil law in many ways. The most important distinction
is that crimes involve acts that are considered public wrongs. Criminal acts violate
the norms of socially acceptable behavior and, therefore, are considered to be acts
against the public even if the act was committed against an individual. In civil law,
a violation is considered a private wrong. A private wrong deals with a violation of
relationships between people. In a criminal case, a jury must determine an accused’s
guilt or innocence. The jury determines if the accused is guilty of the crime “beyond
a reasonable doubt” before rendering a verdict. In a civil matter, a jury or judge may
determine whether or not a defendant is liable for the damages or injuries sustained
by the injured party. The jury will determine liability by a “preponderance of the
evidence.”
Criminal law defines what constitutes a crime. Criminal law establishes what type
of conduct is prohibited and what punishment may be imposed for violating its mandates. Criminal law establishes what degree of intent is required for criminal liability.
In addition, criminal law sets out the defenses to criminal charges that may be asserted
by the accused.
Specific deterrence seeks to discourage individuals already convicted of crimes from
committing future crimes. The arrest and conviction of an individual show that individual
that society has the capability to detect when a crime has been committed and is willing
to punish those who commit crimes.
General deterrence attempts to deter all members of society from engaging in
criminal activity. A general deterrence punishment may deter persons other than the
criminal from committing similar crimes because they would be in fear of incurring
the same type of punishment.
Incapacitation, also referred to as restraint, serves to prevent criminal conduct by
restraining those who have committed crimes. Criminals are restrained in jail or
prison or are sometimes executed. Criminals who are restrained are incapable of
causing harm to the general public due to the restraint. This theory is often the
rationale for long-term imprisonment of individuals who are believed to be beyond
rehabilitation.
Rehabilitation is the theory that if society provides the opportunity, a criminal can
be reformed into a person who, if returned to society, will conform her behavior to
societal norms. The belief is that if the criminal is exposed to educational and vocational programs, treatment, counseling, and other measures, it is possible to alter the
individual’s behavior to conform to societal norms.
Retribution is yet another method of punishing criminals. Punishment through the
criminal justice system is society’s method of avenging a wrong. The idea that one
who commits a wrong must be punished has been handed down from ancient times.
Therefore, punishing those who harm others has the effect of promoting social order
by preventing undesirable conduct.
Malum in se crimes are those crimes that are considered inherently evil either
because they involve criminal intent as an element of the criminal action or because
they involve a criminal action of moral turpitude. Examples of crimes that would be
considered malum in se are murder, rape, robbery, burglary, arson, and larceny. They

Summary

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would be considered evils by society even if no law had been passed by the legislature
making them prohibited.
Malum prohibitum crimes involve conduct that is prohibited, but not necessarily
inherently evil. The action is wrong only because the law prohibits it. For example, it
is against the law to fail to pay money into a parking meter, but the act is not inherently evil.
A capital felony is a crime for which the penalty is death in states that have a death
penalty statute or life in prison without the possibility of parole in states that do not
have a death penalty statute.
A felony is a serious crime that carries a penalty of imprisonment for more than
one year in a state prison and/or the assessment of fines.
A gross misdemeanor is a crime that is punishable by imprisonment for six months
to one year in a state jail and/or a fine.
A misdemeanor is a less serious crime for which the penalty includes imprisonment
for a period of up to six months and/or a fine.
A petty misdemeanor, also known as a violation or an infraction, is not usually
considered a crime and is punishable by fines. Petty offenses or infractions are the
least serious kind of criminal or quasi-criminal wrong and include offenses such as a
traffic ticket or building code violation.
Generally, criminal jurisdiction exists in federal courts for crimes that occur outside the jurisdiction of a state, crimes involving interstate commerce or communications, crimes interfering with the operation of the federal government or its agents,
and crimes directed at citizens or property located outside of the United States. The
federal government has extensive power to enact criminal codes that govern conduct
in the District of Columbia, the territories, and federal courthouses, national parks,
and other areas controlled by the federal government. The federal government also
has the power to criminalize conduct by U.S. citizens abroad such as for treason.
The federal government’s authority to criminalize conduct also extends to ships and
airplanes.
Every state has an inherent authority to promote and protect the health, safety, and
welfare of its citizens. Typically, the state in which the crime was committed assumes
jurisdiction over the accused and prosecutes the accused within its court system.

Key Terms

Administrative law
Arraignment
Arrest
Beyond a reasonable doubt
Bill of Rights
Booking
Case law
Common law
Constitution
Conviction
Court rules
Crime
Damages
Defendant
Deter
Dismissal
Felony

Incapacitation
Infraction
Judgment
Jurisdiction
Malum in se
Malum prohibitum
Misdemeanor
Moral turpitude
Plaintiff
Plea bargain
Preponderance of the evidence
Rehabilitation
Retribution
Sentencing
Settlement
Stare decisis
Statutory law

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Exercises

1.
2.
3.
4.
5.
6.
7.
8.

Where did common law criminal law first originate?
What is the function of criminal law in society?
List two types of crimes, not referenced in the text, that are malum prohibitum.
What is a crime?
What are the differences between a felony and a misdemeanor?
Define retribution and give an example.
What is the difference between general deterrence and specific deterrence?
What does the standard “beyond a reasonable doubt” mean? Provide an
example.
9. How does the standard of proof of preponderance of the evidence differ from
beyond a reasonable doubt?
10. List three job titles of attorneys who might prosecute a criminal case.

Review
Questions

1. The Model Penal Code is not a source of law but a guide to criminal law.
Locate the Model Penal Code. Research the definitions of a crime, murder, and
sentencing in the Model Penal Code. Cite the sections of the Model Penal Code
where you find those definitions.
2. You have learned how some actions can lead to both a criminal and a civil
action against the defendant. Using whatever source available to you, locate
another case that led to both a criminal prosecution and a civil action against
the accused. Prepare an outline regarding the facts and findings of your case.
3. Locate the state statute in your state that imposes the strictest penalty for a
criminal crime. Cite the statute and write a brief analysis of what it says.
4. Why is prosecuting the police officers in the Rodney King case in both federal
and state court not double jeopardy? What U.S. constitutional amendment
addresses the issue of double jeopardy?
5. Research three examples as to what may constitute a case belonging in federal
court/jurisdiction rather than state jurisdiction.
6. Name three crimes that would belong to the classification of statutory criminals?
What makes them statutory crimes?
7. Are criminals imprisoned for punishment or for rehabilitation? Explain your
answer with supporting information.
8. What is malice aforethought? What is a layman’s explanation for what malice
means?

Exercises

PORTFOLIO ASSIGNMENT
The punishment set forth for a given crime is different in each state. One of the most heinous
of crimes is murder with special circumstances, meaning a grievous murder that carries the
harshest penalty. Some states punish this type of criminal with life imprisonment without the
possibility of parole. Some states are death penalty states and will put this type of criminal
to death. Research your state. Is your state one that imposes capital punishment?

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Vocabulary Builders
1

2

4

3
5

6

7

8

9

10
11
12

13

14

15

16

17

18

Instructions
Use the key terms from this chapter to fill in the answers to the crossword puzzle.
NOTE: When the answer is more than one word, leave a blank space between the words.
ACROSS
4. – the process whereby the accused and the prosecutor in
a criminal case work out a mutually satisfactory disposition of the case subject to court approval.
6. a wrong in itself, an act or case involving illegality from
the very nature of the transaction, upon principles of natural, moral, and public law.
7. an agreement by which parties having disputed matters
between them reach or ascertain what is coming from
one to another.
8. a wrong prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law.
10. – procedure whereby the accused is brought before the
court to plead to the criminal charge against him in the indictment or information.
12. the post-conviction stage of the criminal justice process in
which the defendant is brought before the court for imposition of sentence.
13. a positive or negative act in violation of penal law.
15. a crime of a graver or more serious nature than those
designated as misdemeanors.
16. the accused in a criminal case.
17. an act or behavior that gravely violates the sentiment or
accepted standard of the community.
18. restoring a person to his or her former capacity.

DOWN
1. the facts proven, must by virtue of their probative force,
establish guilt.
2. to deprive a person of his liberty by legal authority.
3. – administrative step taken after an arrested person is
brought to the police station, which involves entry of the
person’s name, the crime for which the arrest was made,
and other relevant facts on the police blotter.
5. the official and authentic decision of a court of justice
upon the respective rights and claims of the parties to an
action or suit therein litigated and submitted to its
determination.
9. a person who brings an action
11. punishment based on just deserts
14. offenses lower than felonies and generally those punishable by fine, penalty, forfeiture or imprisonment otherwise than in penitentiary.
16. to turn aside, discourage, or prevent from acting.

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CASE IN POINT
GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963)
GIDEON v. WAINWRIGHT, CORRECTIONS DIRECTOR.
CERTIORARI TO THE SUPREME COURT OF FLORIDA.
No. 155.
Argued January 15, 1963.
Decided March 18, 1963.

Charged in a Florida State Court with a noncapital felony, petitioner appeared without funds and without counsel and asked
the Court to appoint counsel for him; but this was denied on
the ground that the state law permitted appointment of counsel for indigent defendants in capital cases only. Petitioner conducted his own defense about as well as could be expected of
a layman; but he was convicted and sentenced to imprisonment. Subsequently, he applied to the State Supreme Court
for a writ of habeas corpus, on the ground that his conviction
violated his rights under the Federal Constitution. The State
Supreme Court denied all relief. Held: The right of an indigent
defendant in a criminal trial to have the assistance of counsel is
a fundamental right essential to a fair trial, and petitioner’s trial
and conviction without the assistance of counsel violated the
Fourteenth Amendment. Betts v. Brady, 316 U.S. 455, overruled. Pp. 336–345.
Reversed and cause remanded.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was charged in a Florida state court with having
broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under [372 U.S. 335, 337]
Florida law. Appearing in court without funds and without a
lawyer, petitioner asked the court to appoint counsel for him,
whereupon the following colloquy took place:
“The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under
the laws of the State of Florida, the only time the
Court can appoint Counsel to represent a Defendant
is when that person is charged with a capital offense.
I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
“The DEFENDANT: The United States Supreme
Court says I am entitled to be represented by
Counsel.”
Put to trial before a jury, Gideon conducted his defense
about as well as could be expected from a layman. He made
an opening statement to the jury, cross-examined the State’s
witnesses, presented witnesses in his own defense, declined
to testify himself, and made a short argument “emphasizing
his innocence to the charge contained in the Information filed
in this case.” The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison.
Later, petitioner filed in the Florida Supreme Court this habeas
corpus petition attacking his conviction and sentence on the
ground that the trial court’s refusal to appoint counsel for him
denied him rights “guaranteed by the Constitution and the Bill

of Rights by the United States Government.” Treating the petition for habeas corpus as properly before it, the State Supreme Court, “upon consideration thereof” but without an
opinion, denied all relief. Since 1942, when Betts v. Brady, 316
U.S. 455, was decided by a divided [372 U.S. 335, 338] Court,
the problem of a defendant’s federal constitutional right to
counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. To give
this problem another review here, we granted certiorari. 370
U.S. 908. Since Gideon was proceeding in forma pauperis, we
appointed counsel to represent him and requested both sides
to discuss in their briefs and oral arguments the following:
“Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be
reconsidered?”

I.
The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist
him are strikingly like the facts upon which Gideon here bases
his federal constitutional claim. Betts was indicated [sic] for
robbery in a Maryland state court. On arraignment, he told the
trial judge of his lack of funds to hire a lawyer and asked the
court to appoint one for him. Betts was advised that it was not
the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded
not guilty, had witnesses summoned, cross-examined the
State’s witnesses, examined his own, and chose not to testify
himself. He was found guilty by the judge, sitting without a
jury, and sentenced to eight years in prison. [372 U.S. 335, 339]
Like Gideon, Betts sought release by habeas corpus, alleging
that he had been denied the right to assistance of counsel in
violation of the Fourteenth Amendment. Betts was denied any
relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with
a felony did not necessarily violate the Due Process Clause of
the Fourteenth Amendment, which for reasons given the Court
deemed to be the only applicable federal constitutional provision. The Court said:
“Asserted denial [of due process] is to be tested by
an appraisal of the totality of facts in a given case.
That which may, in one setting, constitute a denial of
fundamental fairness, shocking to the universal
sense of justice, may, in other circumstances, and in
the light of other considerations, fall short of such
denial.” 316 U.S., at 462.
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Treating due process as “a concept less rigid and more fluid
than those envisaged in other specific and particular provisions
of the Bill of Rights,” the Court held that refusal to appoint
counsel under the particular facts and circumstances in the
Betts case was not so “offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process. Since the facts and circumstances of the two cases are
so nearly indistinguishable, we think the Betts v. Brady holding
if left standing would require us to reject Gideon’s claim that
the Constitution guarantees him the assistance of counsel.
Upon full reconsideration we conclude that Betts v. Brady
should be overruled.

II.
The Sixth Amendment provides, “In all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” We have construed [372 U.S. 335,
340] this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right
is competently and intelligently waived. Betts argued that this
right is extended to indigent defendants in state courts by the
Fourteenth Amendment. In response the Court stated that,
while the Sixth Amendment laid down “no rule for the conduct
of the States, the question recurs whether the constraint laid
by the Amendment upon the national courts expresses a rule
so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the
Fourteenth Amendment.” 316 U.S., at 465. In order to decide
whether the Sixth Amendment’s guarantee of counsel is of
this fundamental nature, the Court in Betts set out and considered “[r]elevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and
the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date.” 316 U.S., at
465. On the basis of this historical data the Court concluded
that “appointment of counsel is not a fundamental right, essential to a fair trial.” 316 U.S., at 471. It was for this reason the
Betts Court refused to accept the contention that the Sixth
Amendment’s guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, “made
obligatory upon the States by the Fourteenth Amendment.”
Plainly, had the Court concluded that appointment of counsel
for an indigent criminal defendant was “a fundamental right,
essential to a fair trial,” it would have held that the Fourteenth
Amendment requires appointment of counsel in a state court,
just as the Sixth Amendment requires in a federal court. [372
U.S. 335, 341]
We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which
are fundamental safeguards of liberty immune from federal
abridgment are equally protected against state invasion by the
Due Process Clause of the Fourteenth Amendment. This same
principle was recognized, explained, and applied in Powell v.
Alabama, 287 U.S. 45 (1932), a case upholding the right of
counsel, where the Court held that despite sweeping language
to the contrary in Hurtado v. California, 110 U.S. 516 (1884), the
Fourteenth Amendment “embraced” those “‘fundamental
principles of liberty and justice which lie at the base of all our
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civil and political institutions,’” even though they had been
“specifically dealt with in another part of the federal Constitution.” 287 U.S., at 67. In many cases other than Powell and
Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth
Amendment makes them obligatory on the States. Explicitly
recognized to be of this “fundamental nature” and therefore
made immune from state invasion by the Fourteenth, or some
part of it, are the First Amendment’s freedoms of speech,
press, religion, assembly, association, and petition for redress
of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on
the States the Fifth Amendment’s command that [372 U.S.
335, 342] private property shall not be taken for public use
without just compensation, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth’s
ban on cruel and unusual punishment. On the other hand, this
Court in Palko v. Connecticut, 302 U.S. 319 (1937), refused to
hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States.
In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that “immunities that
are valid as against the federal government by force of the specific pledges of particular amendments have been found to be
implicit in the concept of ordered liberty, and thus, through the
Fourteenth Amendment, become valid as against the states”
and that guarantees “in their origin . . . effective against the
federal government alone” had by prior cases “been taken over
from the earlier articles of the federal bill of rights and brought
within the Fourteenth Amendment by a process of absorption.” 302 U.S., at 324–325, 326.
We accept Betts v. Brady’s assumption, based as it was on
our prior cases, that a provision of the Bill of Rights which is
“fundamental and essential to a fair trial” is made obligatory
upon the States by the Fourteenth Amendment. We think the
Court in Betts was wrong, however, in concluding that the Sixth
Amendment’s guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after
full consideration of all the historical data examined in Betts,
had unequivocally declared that “the right to the aid of [372 U.
S. 335, 343] counsel is of this fundamental character.” Powell v.
Alabama, 287 U.S. 45, 68 (1932). While the Court at the close of
its Powell opinion did by its language, as this Court frequently
does, limit its holding to the particular facts and circumstances
of that case, its conclusions about the fundamental nature of
the right to counsel are unmistakable. Several years later, in
1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:
“We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state
action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a
criminal prosecution.” Grosjean v. American Press
Co., 297 U.S. 233, 243–244 (1936).
And again in 1938 this Court said:
“[The assistance of counsel] is one of the safeguards
of the Sixth Amendment deemed necessary to insure

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fundamental human rights of life and liberty. . . . The
Sixth Amendment stands as a constant admonition
that if the constitutional safeguards it provides be
lost, justice will not ‘still be done.’” Johnson v. Zerbst,
304 U.S. 458, 462 (1938). To the same effect, see
Avery v. Alabama, 308 U.S. 444 (1940), and Smith v.
O’Grady, 312 U.S. 329 (1941).
In light of these and many other prior decisions of this Court,
it is not surprising that the Betts Court, when faced with the contention that “one charged with crime, who is unable to obtain
counsel, must be furnished counsel by the State,” conceded
that “[e]xpressions in the opinions of this court lend color to
the argument. . . .” 316 U.S., at 462–463. The fact is that in deciding as it did—that “appointment of counsel is not a fundamental right, [372 U.S. 335, 344] essential to a fair trial”—the
Court in Betts v. Brady made an abrupt break with its own wellconsidered precedents. In returning to these old precedents,
sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice.
Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal
justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided
for him. This seems to us to be an obvious truth. Governments,
both state and federal, quite properly spend vast sums of
money to establish machinery to try defendants accused of
crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed,
who fail to hire the best lawyers they can get to prepare and
present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that
lawyers in criminal courts are necessities, not luxuries. The
right of one charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some countries, but
it is in ours. From the very beginning, our state and national
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and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal
before the law. This noble ideal cannot be realized if the poor
man charged with crime has to face his accusers without a
lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice
Sutherland in Powell v. Alabama:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be [372
U.S. 335, 345] heard by counsel. Even the intelligent
and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is
incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have
a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how to
establish his innocence.” 287 U.S., at 68–69.
The Court in Betts v. Brady departed from the sound wisdom
upon which the Court’s holding in Powell v. Alabama rested.
Florida, supported by two other States, has asked that Betts v.
Brady be left intact. Twenty-two States, as friends of the Court,
argue that Betts was “an anachronism when handed down”
and that it should now be overruled. We agree.
The judgment is reversed and the cause is remanded to the
Supreme Court of Florida for further action not inconsistent
with this opinion.
Reversed.
Source: Reprinted with the permission of Westlaw.

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Chapter 2
Constitutional Requirements
for Criminal Procedure
CHAPTER OBJECTIVES
Upon completion of this chapter, you will be able to:
• Identify the types of searches that can be conducted without a warrant.
• Discuss the difference between reasonable suspicion and probable cause as
it relates to the Fourth Amendment.
• Recognize the Fifth Amendment Miranda requirement.
• Understand the Sixth Amendment right to counsel.
• Learn about the Eighth Amendment cruel and unusual punishment provision.
Many of the basic fundamental rights that we take for granted stem from the
U.S. Constitution. Our founding fathers believed that many fundamental rights
that were denied the citizens of Britain needed to be protected for those in the
new nation. Rights such as the right to be represented by legal counsel and the
right to have a speedy trial by jury are all engrained into the Constitution. Other
rights such as the right to privacy have been thought to be guaranteed as one
of the body of rights that are implied from the Constitution. This chapter will
provide a brief examination of some of these basic rights that help to protect a
person who has been accused of criminal activity.

Bill of Rights
Set forth the fundamental
individual rights government and law function to
preserve and protect; the
first ten amendments to
the Constitution of the
United States.

Due Process Clause
Refers to two aspects of
the law: procedural, in
which a person is guaranteed fair procedures, and
substantive, which protects a person’s property
from unfair governmental
interference or taking.
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THE CONSTITUTION
The first ten amendments to the U.S. Constitution are called the Bill of Rights. They
concern rights that apply to a person who has been accused of criminal activity. These
rights are designed to protect criminal defendants as they proceed through the process
that people accused of crimes must go so that they have the opportunity to prove
their innocence. Most of these rights are applicable to the states through what is
known as the Due Process Clause of the Fourteenth Amendment. The following are
some of the rights set forth by the Bill of Rights. These rights are binding on the
states as