If I do not have any witnesses who will testify on my behalf, can I still win at trial?
Yes. Defendants often go to trial without having anyone testify for them. This strategy allows the defendant's lawyer to focus on cross-examining the prosecution witnesses in order to poke holes in the prosecutor's case -- thereby creating reasonable doubt. Defense attorneys rely on a variety of arguments to discredit the prosecutor's witnesses. Some common arguments include: • Prosecution witnesses are biased against the defendant and therefore are lying or grossly exaggerating. • Prosecution witnesses are mistaken in their observations because the lighting was bad, they were under the influence of drugs or alcohol or they were too far away. • Evidence from police laboratories is unreliable because the machines were not properly maintained or the technicians were not properly trained. • Prosecution witnesses are lying to get a good deal on the criminal charges they themselves are facing (witnesses are often criminals who have been offered a deal if they testify against the defendant). What these arguments have in common is that they do not depend on defense evidence. Rather, they rely on the presumption of innocence and prosecutor's failure to overcome it by proving guilt beyond a reasonable doubt.
I am confused about why a defendant would choose to not testify. If I were innocent, why wouldn't I want to take the stand and tell my story?
A criminal defendant has a right not to testify, and jurors will be told that they cannot assume anything negative if the defendant decides to keep quiet. Of course, some jurors do make assumptions-and they cast their votes accordingly. On the other hand, there are some excellent reasons why a defendant might remain silent in court: • If the defendant has previously been convicted of a crime, the prosecutor may be able to bring this fact out-but only if the defendant testifies. Evidence of a previous crime may cause some jurors to think that the defendant is guilty of the current crime, too. • If the defendant testifies, the prosecutor may be able to bring out other information that tarnishes the defendant's reputation and discredits his testimony. • Some defendants have a poor demeanor when speaking in public. A judge or jury may not believe a defendant who, though telling the truth, is a nervous witness and makes a bad impression. • The defendant may have a perfectly good story which would nevertheless sound fishy to the average jury in that particular locale. What is self-defense -- and how can a defendant prove it? Self-defense is a common defense asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are: • Who was the aggressor? • Was the defendant's belief that self-defense was necessary a reasonable one? • If so, was the force used by the defendant also reasonable? Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable-if she does, she may be guilty of a crime.
Wouldn't longer sentences mean less overall crime?
Sentence length may or may not correlate with a decrease in crime. Criminal punishment has four basic goals: rehabilitate the offender; restrain the offender from committing further crimes; exact revenge against the offender; and deterring the offender and the general public from criminal behavior. It is unclear if longer sentences actually convince a particular offender not to commit another crime. Recidivism rates are high, thereby suggesting that the average offender does not "learn his lesson" in prison and refrain from further criminal activity. One thing that does correlate positively with a reduction in criminal activity is increasing age; people under age thirty-five years commit most crimes. Therefore, it could argued that sentences that keep offenders in prison until middle age will reduce overall crime rates. In addition, more time in prison could allow for more complete rehabilitation because the offender could stay in treatment programs for a longer period of time. Batterers are more likely to change the controlling behavior that leads to domestic abuse if they participate in long-term intensive educational programs. Sex offenders may benefit from multi-level treatment plans spread out over a period of time. In prisons with educational programs, offenders who stay long enough may receive high school or college degrees, or learn a trade, which will equip them to lead a law-abiding life. However, some states do not provide adequate resources for these rehabilitation programs. Longer sentences do not appear to deter the general public from criminal activity. Many times, it is the perception of the likelihood of getting caught that deters a person from criminal activity, not the length of the sentence. Many crimes are committed on impulse, and the threat of a lengthy sentence does not even enter the offender's mind. Finally, the cost of longer sentences in terms of tax dollars is very high. New prisons and jails must be built to accommodate all of the offenders who must be incarcerated under sentencing guidelines and mandatory minimum sentences.
Is there a way to punish a criminal before he actually commits the crime he is planning?
In some circumstances a "crime" can be punished before it occurs. Many jurisdictions have either a general "attempt" crime or individual statutes that make attempted murder or attempted robbery or the like crime. The purpose of these statutes is to punish an individual who has shown himself to be dangerously inclined to commit a crime without waiting until the criminal act is actually completed. In order to convict a person for an attempted crime, the government must prove beyond a reasonable doubt that the person had the intent to do an act or bring about certain consequences that would amount to a crime, and that he took some step beyond mere preparation towards that goal. Whether the offender has the intent necessary to be convicted of attempt depends on the mental state required by the underlying crime. If a person's actual intention at the time he or she attacked the victim was to cause bodily harm, he or she cannot be convicted of attempted murder if the victim does not die. (However, he could be convicted of the actual crime of murder if the victim died, even if his intention was only to cause bodily harm.) Likewise, a person whose plan to steal fails, can be convicted of attempted theft, which requires the intention to deprive another of his property permanently, only if he or she had the same intention at the time the crime was attempted. Like most crimes, attempt requires a "bad act" as well as a bad intention. Therefore, the government must prove the offender engaged in conduct that tended to affect the crime. The exact nature of the act needed to meet this "preparation" requirement varies from case to case, depending on individual facts. For example, a person who checked in at the ticket counter of an airport and sat in the waiting area with a gun in his pocket was convicted of the crime of attempting to board an airplane with a gun. A person who planned to rob a bank messenger and drove around looking for him on his regular route, but did not find him, was not guilty of attempted robbery. The punishment for the crime of attempt can be the same as the punishment for the completed crime. However, most jurisdictions make some distinction and provide for a lesser punishment for attempt. For instance, some states provide that the punishment for attempted first-degree theft will be the same as the crime of second-degree theft. The Model Penal Code, which is a source of many states' criminal statutes, generally requires the same punishment for attempt as the punishment for the underlying crime on the rationale that a person who attempts a crime has shown himself to be just as much in need of corrective sanctions as the one who actually completes a crime.
Are all illegal drugs treated equally when it comes to punishing drug dealers
No, the punishment for drug crimes depends not only on the criminal conduct of the offender but also on the classification of the drug. Federal sentencing guidelines begin with forty-three base offense levels and add or subtract a few levels depending on certain specified criteria. The higher the offense level, the harsher the sentence. The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. However if the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and listed on the same schedule of controlled substances. However, the quantities of crack needed to impose a certain sentence are much less than the quantity of powdered cocaine. A person convicted of the crime of delivering 5 grams of crack will receive a sentence in the federal system of five to forty years. To receive that same sentence, a person would have to be convicted of delivering 500 grams of powdered cocaine.
Can a person be guilty of drunk driving if he only had one drink?
The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol. To find a person guilty under the first definition, a jury must be convinced beyond a reasonable doubt that the person's blood alcohol content (BAC) exceeded a certain amount. In most states the legal limit is .08 percent. Therefore, if it is proved that the person's BAC at the time of the incident was .08 percent or greater, he or she can be convicted of drunk driving, regardless of how much alcohol was actually consumed. In contrast, the second definition does not refer to any particular BAC. It focuses on the driving behavior of the person; if it is impaired by the person's consumption of alcohol, he or she can be found guilty of drunk driving. Instead of presenting evidence of the BAC to a jury, the prosecution seeking a conviction under this definition generally presents testimony about the person's driving and consumption of alcohol. A police officer will often describe the impaired driving that lead him to pull the person over and the person's ability (or lack thereof) to perform field sobriety tests, such as walking a straight line. Evidence is also usually presented concerning the person's consumption of alcohol and if the jury then concludes that the prosecution has met its burden of proof, it will convict the person of drunk driving. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.
What is the role of the federal government in criminal law?
Ordinary crime has long been considered to be the concern of state government. States are authorized to protect their citizens from criminal activity by prosecution of common law and legislatively created crimes. The federal government, on the other hand, has a limited jurisdiction and must link any crimes it prosecutes to its powers under the Constitution. The most commonly used powers to support federal criminal legislation are the commerce power, the taxing power, and the postal power. While Congress has used these powers all along to define crimes, there has been an explosion of federally created crimes in the last half of the 20th century. Most of the laws controlling white-collar crime, like the RICO Act and the Victims and Witnesses Protection Act have been passed since 1950. In addition, Congress has become increasingly involved in the "war on drugs" with the creation of various drug statutes. Due to the severity of the penalties, many local prosecutors prefer to have drug charges prosecuted in federal court rather than file state charges. Most federal laws have as their rationale that the particular crime addressed needs a uniform response from the whole country or that it would be impossible to prosecute on a state-by-state basis. Federal gun laws provide uniformity, and federal computer laws make it possible to punish Internet crime. The federal Constitution has always played a role in criminal law because it defines important individual rights that must be preserved even in a state prosecution of a state crime. The right to a trial by jury in open court, the right to cross-examine witnesses, the right to remain silent, the presumption of innocence, the right to be represented by a lawyer, and the right to be free of cruel or unusual punishment, are part of every state legal system in part because they are guaranteed by the Constitution. States are required to pay for attorneys for indigent offenders, and federal judges provide oversight to state prisons because of these constitutional requirements.
Are grand jury proceedings secret?
Most courts have rules that prohibit disclosure of grand jury proceedings. The rules typically apply to the government attorneys, the grand jury members, and the court personnel. Violators of the rules can be held in contempt of court if a case against them is proved. It is often times very difficult to do so because of the problems with proving the leaked information came out of the grand jury proceeding itself and identifying exactly who made the prohibited disclosure. Another problem in keeping the proceedings secret arises because the prohibition against disclosure often does not apply to a person subpoenaed to appear before a grand jury. Witnesses are free to discuss their testimony with the media or with anyone else, unless the judge expressly orders them not to. Persons who are the subject of a grand jury proceeding are not entitled to any notice regarding the scope of the investigation or the nature of the incidents under consideration. They are generally not allowed to have an attorney present with them in the grand jury room, but may be permitted to leave from time to time to consult with an attorney outside the grand jury room.
Are there special criminal codes for children?
While there is a special court system to handle juvenile crime, there is usually not a special juvenile criminal code. Adult criminal codes are applied in the juvenile system, but the children are not generally accused of crimes. Instead, they are accused of committing delinquent acts. Sentences are designed to educate and rehabilitate children, rather than punish them. Children cannot be locked up in adult jails except for very limited periods of time. A child held in an adult jail must be out of sight and sound contact with the adult inmates. In earlier days, special crimes that only applied to children did exist. These crimes were the so-called status offenses and punished behavior that would not be criminal if committed by an adult. Status offenses included running away from home, skipping school, disobeying parents, and breaking curfew. The federal Juvenile Justice and Delinquency Prevention Act made receipt of federal funds conditioned on eliminating status offenses, and most states have done so. However, these behaviors may still trigger an investigation by child protective services to determine if the child needs assistance from the court or social service agencies.
What is the difference between probation and parole?
Probation is itself a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are seriously considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms include required attendance at alcohol treatment or narcotic-abuse programs, and educational classes on such subjects as anger management or good driving. The probation term is usually spelled out up front and once the person has completed that period of time, the sentence is over and he or she is free of court supervision. The parole board that oversees prison populations grants parole. Typically the offender has been sentenced to an indeterminate number of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards typically consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If the parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a certain period of time. If he or she completes the parole period, the criminal sentence is discharged. Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision with the reasons for the revocation stated. A revoked parolee goes back to prison, and the offender whose probation is revoked begins serving the suspended sentence.
How does a district attorney decide which criminals to go after?
A district attorney or prosecutor has the discretion to decide which crimes should be charged. In a typical scenario, the police investigate a crime and send a report to the prosecutor. The prosecutor then must decide whether to bring criminal charges against the subject of the investigation. The first thing the prosecutor looks for is a legally sound case. The case must not have any obvious defects that will get it thrown out of court, such as violation of the defendant's constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is reliable evidence of the person's guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable. Finally, the prosecutor decides if the case fits in with the office's policy objectives. If pre-trial diversion is available, such as an agreement by the defendant to undergo drug treatment in return for a suspended sentence, the prosecutor may prefer to dispose of the case that way. The defendant's culpability may be lacking because he acted out of a worthy motive, or has mental defects. Finally the prosecutor must decide if he has the resources to pursue the case or if it is a low priority for that particular office. Many prosecutors are elected officials and as such can be voted out of office if the public does not like the emphasis of their office. Some prosecutors, for instance, may focus most of their efforts and the office's resources combating property crime, while others may focus on domestic abuse. If the electorate does not like the particular goals of the prosecutor, it can end the practice by failing to reelect the individual or by seeking to have them otherwise removed from office.
What is the difference between rape and sexual assault?
Rape is often used as a generic term for unwanted sexual acts. However, its common-law definition required the sexual act to be intercourse, the rapist to be a man, and the victim to be a woman, other than his wife. Furthermore, the act had to be done by force or the threat of force. Common-law rules often required the rape to be corroborated by independent witnesses to negate the offender's defense of consent. Many modern-day codes no longer use the term "rape" but instead use sexual abuse or sexual assault to define the prohibited acts. Traditional rape is covered by these statutes and may be designated sexual abuse in the first degree. However, most sexual assault statutes cover more kinds of sexual acts and apply to homosexuals as well as heterosexuals. Husbands can generally be charged with sexual assault of their wives, although they may receive a lighter sentence than non-marital sexual assault. Lesser offenses, such as unwanted touching or lascivious acts may be included in the definition of sexual assault.
Is driving over the speed limit a crime?
Traffic violations can be felonies, misdemeanors, or infractions. Felonies and misdemeanors are crimes, but infractions are usually not thought to be part of the criminal justice system. Driving over the speed limit is usually classified as an infraction in those systems that use the infraction category and as a minor misdemeanor in those systems that do not. If driving over the speed limit is classified as a misdemeanor, it is technically a crime, but often such crimes are excluded from consideration in a person's criminal record. Whether speeding is an infraction or a crime, it is usually punished by a fine. A common scheme is for the fine to increase in proportion to the amount over the speed limit for which the ticket is written. Most jurisdictions tell the speeder the amount of the fine right on the ticket and often give instructions for pleading guilty and paying the fine by mail. The offender may have to pay a special fee to get a trial on the ticket and may not be entitled to a jury trial.
Can only businessmen be charged with white-collar crimes?
The early definition of white-collar crime focused on the status of the offenders when it identified them as professionals or businessmen. However, the current definition of white-collar crime focuses on the actions committed and not on the vocation of the offender. White-collar crime is using illegal acts involving deceit to obtain property or services or to gain a business or professional advantage. Drug dealers have been charged with the "white collar crime" of mail fraud when they have delivered controlled substances through the mail. A printer was convicted of securities fraud when he used information he obtained in the course of printing corporate documents to gain an advantage in the stock market. The RICO Act is generally thought of as a white-collar crime prevention statute. It punishes anyone who engages in a pattern of racketeering to generate income to buy a business or to conduct a business. The pattern of racketeering refers to at least two criminal acts listed in the statute that have a relationship to each other and occur within ten years of each other. Originally passed to control organized crime, RICO has been applied to drug dealers, and other non-organized crime defendants. Our criminal law has its roots in medieval England. Under early common law, criminal behavior was considered a breach of the King's peace and therefore a harm to society in general, which required governmental action. Only the major felonies, such as treason, rape, larceny, battery, kidnapping, murder, and arson were prosecuted and the only sentence was death. Today, criminal law is a vast and complex body of statutes, rules, and judicial decisions that touch nearly every aspect of our lives. State, federal, and municipal criminal codes have divided the old common-law felonies into many separate crimes and now provide an array of sentencing options. In addition, new crimes have been defined addressing drugs, automobiles, businesses, organized crime, computers and other modern situations. A crime must be clearly defined in order to pass scrutiny under the federal Constitution, which prohibits the government from taking a person's life, liberty, or property without due process of law. A vague description of the crime or a lack of specific elements needed for committing the crime leaves a person without knowledge of exactly what is prohibited. In order to be a crime, the prohibited conduct must include both a "mens rea" or guilty mind and an "actus reus" or bad act. Accidentally hitting somebody when you draw back the baseball bat to swing at a ball is not a crime because it lacks the guilty mind. Wishing someone would drop dead is not a crime because it lacks the bad act. Examples of crimes and topics of interest in criminal law include: Drug violations are criminalized in both federal and state criminal justice codes, which typically list controlled substances that may not be used except under a doctor's care. When a person uses one of these substances in violation of the permitted uses, he or she has committed a crime. DWI/DUI means "driving while intoxicated" or "driving while under the influence" and refers to the crime of drunk driving. This crime usually includes driving while abusing drugs and the operation of other kinds of motorized vehicles, such as boats. Drunk driving is defined by each state's criminal code. Federal jurisdiction refers to prosecution of crimes under federal law. Crime has traditionally been thought of as the domain of individual states, but Congress is authorized through its powers under the commerce, postal, and taxing clauses in the Constitution to make laws on crime in those areas. While a person can be prosecuted for the same incident under state and federal law, most often the choice is made to bring the action in state or federal court based upon resources available to investigate and prosecute the crime and on sentencing options. Felonies are crimes punishable by over one year in prison. Most felonies are also punishable by a fine, but the critical determination for considering a crime a felony is the prison sentence. Fraud is not a separate crime, but is an important part of property crimes such as embezzlement and false pretenses. The lawbreaker must knowingly and intentionally deceive the victim in some manner for the fraud element to be satisfied. Grand jury proceedings are a method used by prosecutors to bring criminal charges against a lawbreaker. A prosecutor will often convene a grand jury when investigating complicated criminal matters. Juvenile crimes are typically called delinquent acts and handled in a different system than adult crime. The major purpose of the juvenile system is to rehabilitate the offender, and many sentences require counseling or other family intervention. Juvenile court jurisdiction typically ends when a person turns eighteen. Misdemeanors are crimes with a punishment of less than one year in prison. Many crimes, such as theft, have degrees of seriousness with the most serious being felonies and the less serious being misdemeanors. Procedures used in misdemeanor prosecution may be abbreviated. Parole and probation are used in the sentencing phase of the criminal-justice system. Parole refers to the condition of supervised release that occurs after an offender has spent time in prison. Probation is a sentence imposed instead of prison and is usually subject to terms and conditions designed to make the offender a law-abiding citizen. Prosecution refers to the government's case against the lawbreaker. A prosecutor - the lawyer presenting the government's case - has complete discretion to decide whether to bring a charge against an alleged offender and must prove all charges beyond a reasonable doubt. RICO Act refers to the federal Racketeer Influenced and Corrupt Organization Act passed in 1970 as part of a larger organized crime bill. The purpose of the act is to combat the infiltration of organized crime into legitimate businesses, but also it has been used to prosecute individuals other than just those associated with organized crime. Sex offenses include much more than the common-law crime of rape, which was limited to unlawful sexual intercourse by a man against a woman through the use of force or the immediate threat of force. Most states prohibit lesser invasions, such as unwanted touching, as well as permit prosecution of spouses for sexual assault. In addition, sex offenses include crimes that are defined based on the status of the victim, such as a child or therapy patient. Traffic violations may be crimes or may be classified as violations and not considered part of the criminal law. Where they are crimes, they are typically considered the lowest level of misdemeanor and are generally only punished by a fine. However, some traffic violations can rise to the level of more serious crimes, such as vehicular homicide or leaving the scene of an accident. Victims' rights refers to a body of emerging law that focuses on the needs and concerns of crime victims. Victims now have rights, for example, to information about the prosecution of the crime committed against them, to receive counseling and compensation, and to participate in the sentencing process. White-collar crimes refer to the group of property crimes typically committed to gain a business or professional advantage. White-collar crimes include mail fraud, bank fraud, securities fraud, tax crimes, and environmental pollution.
What should I do if a police officer pulls me over?
Remain as calm as possible, and pull over to the side of the road as quickly and safely as you can. Roll down your window, but stay in the car -- don't get out unless the officer directs you to do so. It's a good idea to turn on the interior light, turn off the engine, put your keys on the dash and place your hands on top of the steering wheel. In short, make yourself visible and do nothing that can be mistaken for a dangerous move. For example, don't reach for a purse or backpack or open the glove box unless you've asked the officer's permission, even if you are just looking for your license and registration card. The officer may think you're reaching for a weapon. When the officer approaches your window, you may want to ask (with all the politeness you can muster) why you were stopped. If you are at all concerned that the person who stopped you is not actually a police officer (for example, if the car that pulled you over is unmarked), you should ask to see the officer's photo identification along with her badge. If you still have doubts, you can ask that the officer call a supervisor to the scene or you can request that you be allowed to follow the officer to a police station.
If a police officer pulls me over, can she search my car?
Yes, if the officer reasonably suspects criminal activity or if she fears for her safety. A solid hunch is all that's required, and the search may be valid even if the real reason behind the officer's decision to enforce a traffic law was her feeling that you were doing something illegal. If the officer has reason to think that you pose a danger to her safety, she is allowed to search you and the immediate area around you (this may include the passenger compartment of your car and its contents -- such as bags or a briefcase -- and your glove compartment). For example, a driver who is belligerent and threatening might be asked to step out of the car for a pat-down while the passenger compartment, including a duffel bag, is searched for weapons. If a law enforcement officer suspects that a passenger is conducting any illegal activity or holding contraband, the officer has the right to search that passenger and his or her belongings. If my car is towed and impounded, can the police search it? Yes. If your car is impounded, the police are allowed to conduct a thorough search of it, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally, or if the police recover your car after it is stolen. The police are required, however, to follow fair and standardized procedures when they search your car, and may not stop you and impound your car simply to perform a search.
When can a defendant win an acquittal on grounds of insanity?
The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished. Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person suffers from a mental disorder, and to link mental disorders to the commission of crimes. The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest: • Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." On the few occasions that the defendant does raise it, judges and jurors rarely support it. • Because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context, various definitions are employed. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": A person who acts out of an irresistible impulse knows that an act is wrong, but because of mental illness, cannot control his actions. • Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution, and not released until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted. • An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
What happens if a defendant is judged "incompetent to stand trial"?
Aside from insanity as a defense to criminal charges, the question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense. Based on a defendant's unusual behavior, a judge, prosecutor or defense attorney may ask that trial be delayed until the defendant has been examined and her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until her competence is re-established. At that time, the trial will be held.
Can a defendant go free because he was drunk or high on drugs when he committed a crime?
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. People know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use. Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires what's known as "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent-for example, assault with a deadly weapon instead of assault with the intent to commit murder.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property. As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that: • it is more likely than not that a crime has taken place, and • items connected to the crime are likely be found in a specified location on the property. To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant. • Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant. • Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft. • Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members. • Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search. • "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime. Searches & Seizures: The Limitations of the Police Although people in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car, or other property in order to look for and take illegal items, stolen goods or evidence of a crime.
What rules must the police follow when engaging in these searches and seizures-What can they do in upholding the laws, and what can't they do?
What the Police MAY Do: • Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches and seizures. o To prove that a search is "reasonable," the police must generally show that it is more likely than not that a crime has occurred, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the crime. This is called probable cause. o In some situations, the police must first make this showing to a judge who issues a search warrant. In many special circumstances, however, the police may be able to conduct a search without a warrant. In fact, the majority of searches are "warrantless." Examples are discussed below. • Police may search and seize items or evidence when there is no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the police can take them and, in effect, no "search" has occurred. Note: In deciding whether there was a "legitimate expectation of privacy," a court will consider two things: o Did you have an expectation of some degree of privacy? o Was that expectation reasonable in our society's view? Example: You have a semi-automatic rifle that you stole from a pawnshop. You leave the rifle laying on the hood of your car when you get home. You do not have a "legitimate expectation of privacy" with regard to things you leave on the hood of your car, and the police may take the rifle. No search has occurred. • Police may use first-hand information, or tips from an informant to justify the need to search your property. If an informant's information is used, the police must prove that the information is reliable under the circumstances. • Once a warrant is obtained, the police may enter onto the specified area of the property and search for the items listed on the warrant. • Police may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in the warrant if it is necessary to: o Ensure their safety or the safety of others; o Prevent the destruction of evidence; o Discover more about possible evidence or stolen items that are in plain view; or o Hunt for evidence or stolen items that, based upon their initial search of the specified area, they believe may be in a different location on the property. Example: The police have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your house to go down to the basement, they see a cache of guns sitting on the kitchen table. They may take the guns in order to ensure their safety while searching your basement. Permissible Searches Without a Warrant • Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it. • Police may search your person and the immediate surroundings without a warrant when they are placing you under arrest. • If a person is arrested in a residence, police may make a "protective sweep" of the residence in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the police must have a reasonable belief that an accomplice may be around. Example: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet because an accomplice could not hide there. • When you are being taken to jail, police may perform an "inventory search" of items you have with you without a warrant. This search may include your car if it is being held by the police in order to make a list of all items inside. • Police may search without a warrant if they reasonably fear for their safety or for the public's safety. Example: If the police drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without a warrant. • If it's necessary to prevent the imminent destruction of evidence, the police may search without a warrant. Example: If the police see you trying to burn a stack of money that you stole from a bank, they may perform a search without a warrant to prevent you from further destroying the money. • Police may perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime. Example: If the police are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they may follow you into the apartment and search the area without a warrant. • Police may perform a pat-down of your outer clothing, in what is called a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety. What the Police MAY NOT Do: • The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies. • If evidence was obtained through an unreasonable or illegal search, the police may not use it against you in a trial. This is called the "exclusionary rule." • The police may not use evidence resulting from an illegal search to find other evidence. • The police may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit. • Unless there is a reasonable suspicion that it contains evidence, illegal items, or stolen goods, the police may not search your vehicle. If your car has been confiscated by the police, however, they may search it. • Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not "stop and frisk" you. If they have a reasonable suspicion, they may pat down your outer clothing if they are concerned that you might be concealing a weapon.
