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Exam Two Chapter 4-7
- An affirmative criminal defense is the justification of committing a crime. With affirmative defense, the accused admits to breaking the law but says they had a good reason for doing so. It is a mistake of fact, not a mistake of the law. Regardless, ignorance of the law is not an excuse for breaking the law.
Here are four types of affirmative defenses:
- Duress: This means to be coerced into committing a crime because failure to do so would result in a more serious crime. For example: A man forces his way into someone’s car and holds a child at gunpoint. He tells the mom to drive to a convenient store and rob it. If she fails to do so successfully, he will kill her son.
- Necessity: This occurs when under extreme conditions, a person cannot avoid taking criminal actions to resolve a situation. For example: There is a plane crash and the few who survive get on a lifeboat. They are all hungry and are going to die soon if help doesn’t come. One of them is starting to get weak so they agree to kill him as he will provide them with meat until they are rescued.
- Self- Defense: This is when someone’s life is being threatened by another person and that individual may need to defend themselves with the use of force. For example: A person is walking down the street and out of nowhere someone comes up behind them and attacks them. They can fight back claiming self-defense because their life was being threatened by another person.
- Entrapment: This occurs when law enforcement personnel trap or trick someone into committing a crime they would not have otherwise committed. For example: An undercover cop is posing as a prostitute. She walks up to a random car and offers sex in exchange for money. If he accepts the offer and is arrested, that is considered entrapment.
- There are three eras of policing
- The Political Era: This era created organized police departments. Although they were “police departments”, it was based on your connections, not your knowledge. Local political bosses hired members of their loyal members of their party to serve under the departments. There was little training provided and they were allowed to use force. Instead of taking suspects down to the department headquarters, they were allowed to punish them right on the spot. Although organized police departments are still used today, the methods of policing are a lot different. Organized departments are used today to be more efficient when responding to criminal activity out in the community.
- The Professional Era: This era created the UCR (uniform crime report), which is the annual statistics of selected crimes. This professional era helped with merit based hiring and thorough training to get the job. It embraced science such as “modus operandi files” to connect offenses of similar types systematically, something used in modern investigative profiling, as well as new technology. This era also developed the 9-1-1 system, which we still use today. It is used in case of emergency to get help to someone who needs it right away. It also lets people report crimes and sometimes even catch the perpetrator in the act.
- The Community Policing Era: The biggest change in this era which continues today concerns the way the police view the public. Community policing puts emphasis on crime prevention and focuses on developing positive relationships between the public and the police. If the community doesn’t feel safe or have a bad attitude towards police officers, they will not be willing to help solve crimes and resolve problems. This is why it is important for police officers to have a good reputation in the community. They really work on being there for community members by attending meetings to ask questions and get feedback from residents in the area.
- Civil law has to do with the relationships between individuals. If someone is injured in any way, physically or otherwise, they can bring a lawsuit against the party that hurt them. Civil law focuses on the plaintiff’s injuries, the person who initiated the lawsuit, and in turn makes the defendant pay for the damages. Criminal law focuses on harm done to society rather than to an individual. These two are also very different in the fact that civil defendants are found liable whereas criminal defendants are found guilty. Another main difference is that in civil law, the victim presses charges and in criminal law the state is the one who charges the defendant. Although they are very different types of law, they also have some similarities. They both have two parties involved- the plaintiff against the defendant in civil law, and the state against the defendant in criminal law. Both types of law are allowed juries and although the circumstances are different, they both have a standard of proof.
- Many of the policies we see with policing in the U.S. have been influenced by the London Model. One major characteristic we see with policing here in the U.S. is employing sworn and nonsworn personnel. Sworn personnel are those who have the power to arrest, while nonsworn personnel are simply civilians. There are different levels of policing in the U.S. which include local, state, and federal. At the local level, there are sheriffs’ offices and police departments. Sheriff’s offices usually police rural areas as well as provide transportation services and jail facilities. Police departments serve in mostly urban areas. They mostly deal with penal code and ordinance violations. State level law enforcement agencies are defined by state law. When looking at what state level agencies do, you have to consider each state’s laws. Because every state law is not the same, the regulations of each state level agency varies. They are relatively the same though as they deal with motor vehicle violations and, alcoholic and drug control. They also have the ability to help local departments by offering crime lab services. Federal level agencies deal with federal statute violations. The main federal law enforcement agency is the Department of Justice. Within the DOJ there are other services such as the FBI, DEA, and the ATF. The FBI protects the United States from terrorist attacks and foreign threats. The DEA deals with those who have violated drug laws and prepares them for prosecution. The ATF handles anything that involves firearms and explosives such as arson. It also handles alcohol and tobacco trafficking. The Department of Homeland Security also falls under federal law. It was created after the 9/11 attack and helps prevent terrorist attacks and prepare us for any disaster. The two main law enforcement agencies in the DHS are U.S. Customs and Border Protection and the U.S. Immigration and Customs Enforcement. CBP protects our borders by preventing any kind of trafficking, illegal immigration, and terrorism. The ICE on the other hand administers immigration laws and customs. Because there are so many levels and organizations of law enforcement, the U.S. experiences fragmentation. This basically means the lack of communication and coordination throughout law enforcement agencies as a whole. Because they are not all under one jurisdiction, many small departments don’t go to neighboring departments for help. This causes a gap within the policing community. Communicating better and sharing information could possibly keep the number of unsolved cases down.
- Probable cause is the reason based upon evidence to reasonably believe a crime has been committed for an officer to arrest without a warrant. Example: An officer pulls a driver over for speeding. There are two other people in the car as well. The officer searches the vehicle with the drivers consent and finds bags of weed under the seat. When asked they say they didn’t know it was there but the officer still has probable cause to arrest all of them.
Reasonable suspicion is less than probable cause because it is based on a hunch, not evidence. It is when a reasonable person suspects a crime has been committed based on a person’s behavior or other circumstances given the situation. Reasonable suspicion includes a stop-and-frisk as well as Terry-stop. Example: An officer gets a call about a green car that was involved in a hit and run. On the way to the accident, the officer sees a green car with a head light out. That is enough reasonable suspicion to pull that car over.
Custodial Interrogation is the questioning by law enforcement to a detained person in their connection to a crime. Example: There has been an ongoing investigation on someone for tax fraud. They are finally arrested and read their Miranda Rights. They are escorted to the police station, where they are put into a room with a detective. While there the detective asks the suspect about their involvement with the crime itself.
The exclusionary rule is a protection of an individual’s fourth amendment rights stating any violation of that right cannot be used against that individual in criminal court. Example: Without probable cause or consent from the owner, a car is illegally searched and drugs are found. That incriminating evidence would not be allowed in court because it was obtained illegally and in violation of that person’s fourth amendment rights.
- Warrantless Searches
- Search incident to arrest: Once someone is arrested, the police officer may search the person, their clothing and anything they may be carrying. If it is an arrest in a home, then police can search anything in arms reach. Example: A woman is arrested for punching someone in the face. The police officer searches her body, her clothing and her purse for any weapons that could be used to harm the officer.
- Automobile searches: To search a car, a police officer does not have to have a warrant, only probable cause. Example: A police officer pulls someone over for improper lane change. As the officer approaches the car, he looks inside and sees an open bag with marijuana in it on the dash board. This is probable cause because he can reasonably say he believes a crime had been committed, therefore he can search the car without a warrant.
- Terry stops (stop-and-frisk): It is a brief pat-down of a person by a law enforcement officer based on reasonable suspicion of that person being involved in criminal activities. Example: If a person is walking back and forth in front of a convenience store and looking into the front window, a police officer present has the right to make a terry stop in believing they could be waiting to rob the place.
- Inventory searches: These happen when police officers have to make a list of things that have been impounded by them. Example: A truck driver has too many unpaid traffic tickets so his car is taken to the impound lot. An officer has to make an inventory list of everything that is in the car.
- Searches under exigent circumstances: These circumstances do not need a warrant due to the fact that someone’s life is in immediate danger. Example: Someone’s house catches on fire and they are trapped inside. You do not need a warrant to enter the house because that person’s life is more important at that moment than a piece of paper.
- Consent searches: There is no need for a warrant during a consent search because the owner is giving the law enforcement officer permission to search their belongings. Example: An officer has reasonable suspicion to look around someone’s house. They ask the owner if they can take a quick look around and the owner does not object.
- The 5 legal elements of crime
- Actus Reus: It means the evilness or guilty act of a crime. It has to do with how far a person is willing to go to commit a crime. This usually means the defendant was the one who used the murder weapon but not in all cases. Sometimes someone else committed the crime for a person, like a hit man, but they both are found guilty because they were both involved in the criminal act.
- Mens Rea: This refers to the mental state a person was in when they committed the crime. A murder must be premeditated for someone to be convicted of first degree murder. First degree murder would be the highest level of mens rea. Other levels include purposely, knowingly, recklessly, and negligently committing a crime. The main idea behind mens rea is that people should not be held criminally responsible for committing a crime if that was not their intent. Sometimes a judge or jury has to establish the level of mens rea.
- Causation: All crimes have actus reus and mens rea but some even require a certain result to occur. A prosecutor must prove that the defendant’s actions were the cause of someone’s death to convict that person of a homicide. For example: Someone gets beat up pretty bad and has to go to the hospital. They make it out alive but have server brain damage. Years later he dies from choking on a piece of food. His death is ruled a homicide because he died due to the impaired chewing which is the result of him getting beat up years earlier.
- Concurrence: For concurrence to happen, both mens rea and actus reus has to happen at the same time, more or less so. For example: Someone puts rat poison in a cup of coffee thinking it is sweetener. Whoever drinks that cup of coffee dies because of the poison. If the person who put the rat poison in the cup on accident is happy over the death, it’s still not considered concurrence because they did not mean to murder that person. Mens rea and actus reus did not occur at the same time.
- Harm: A physically injury to someone that was inflicted deliberately. Harm is one of the three elements of crime, along with action and intent. Most of the time all three elements occur for a criminal defendant to be convicted, although there have been some cases where all three are not required for a conviction.
- Four Sources of Law
- Constitution: Fundamental rules and written laws that shows not only the duties but the limitations of our government. Although we have the U.S. constitution, each state has its own as well. All states, no matter the jurisdiction, have to follow the rules set by the U.S. Constitution. The U.S. Constitution states the powers for three branches of government- congress, executive, and the courts. It also contains 27 amendments which are rights we have as a people and a society and the government cannot interfere.
- Statutes: These are written laws made either by society through voting, or by legislatures. There are federal and state statutes and just like constitutions, every state has a set of their own. They are laws put forth to punish particular acts.
- Ordinances: These are different from statutes because these are laws set by each city and county. Ignorance of the law is no excuse. Not all ordinances are the same therefore it is good to know who has what laws against which acts. For example, the details of a noise ordinance law may vary from city to city.
- Case Law: Case laws are decisions from previous court cases that a judge has made. Judges at any level cannot make their own law or even pass them. This makes them interpret the laws and helps them make decisions when they are in the court room. Once they have made a decision about a specific case, they generally use the decision again with a similar case.