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Criminal Law

Criminal Law

[Author removed at request of original publisher]

UNIVERSITY OF MINNESOTA LIBRARIES PUBLISHING EDITION, 2015. THIS EDITION ADAPTED FROM A WORK ORIGINALLY PRODUCED IN 2010 BY A PUBLISHER WHO HAS REQUESTED THAT IT NOT RECEIVE ATTRIBUTION.

MINNEAPOLIS, MN

Criminal Law by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

This book was produced using Pressbooks.com, and PDF rendering was done by PrinceXML.

Contents

Publisher Information viii

About the Author ix

Acknowledgments x

Dedication xi

Preface xii

Chapter 1: Introduction to Criminal Law

1.1 Introduction 2 1.2 Criminal Law and Criminal Procedure 4 1.3 The Difference between Civil and Criminal Law 6 1.4 Classification of Crimes 13 1.5 The Purposes of Punishment 16 1.6 Sources of Law 19 1.7 End-of-Chapter Material 30

Chapter 2: The Legal System in the United States

2.1 Federalism 36 2.2 The Branches of Government 43 2.3 The Court System 49 2.4 The Burden of Proof 54 2.5 End-of-Chapter Material 61

Chapter 3: Constitutional Protections

3.1 Applicability of the Constitution 67 3.2 The Due Process and Equal Protection Clauses 74 3.3 Freedom of Speech 80 3.4 The Right to Privacy 88 3.5 The Right to Bear Arms 92 3.6 Excessive Punishment 95 3.7 End-of-Chapter Material 106

Chapter 4: The Elements of a Crime

4.1 Criminal Elements 113

4.2 Criminal Intent 124 4.3 Causation and Harm 138 4.4 End-of-Chapter Material 145

Chapter 5: Criminal Defenses, Part 1

5.1 Criminal Defenses 151 5.2 Self-Defense 157 5.3 Other Use-of-Force Defenses 166 5.4 Defenses Based on Choice 176 5.5 Consent 181 5.6 End-of-Chapter Material 185

Chapter 6: Criminal Defenses, Part 2

6.1 The Insanity Defense 192 6.2 Infancy, Intoxication, Ignorance, and Mistake 210 6.3 Entrapment 217 6.4 End-of-Chapter Material 221

Chapter 7: Parties to Crime

7.1 Parties to Crime 227 7.2 Vicarious Liability 235 7.3 Accessory 239 7.4 End-of-Chapter Material 245

Chapter 8: Inchoate Offenses

8.1 Attempt 252 8.2 Conspiracy 265 8.3 Solicitation 277 8.4 End-of-Chapter Material 281

Chapter 9: Criminal Homicide

9.1 Homicide 287 9.2 Murder 292 9.3 First-Degree Murder 298 9.4 Felony Murder 304 9.5 Second-Degree Murder 311 9.6 Manslaughter 314 9.7 End-of-Chapter Material 322

Chapter 10: Sex Offenses and Crimes Involving Force, Fear, and Physical Restraint

10.1 Sex Offenses 329 10.2 Assault and Battery 347 10.3 Domestic Violence and Stalking 359 10.4 Kidnapping and False Imprisonment 367 10.5 End-of-Chapter Material 375

Chapter 11: Crimes against Property

11.1 Nonviolent Theft Crimes 381 11.2 Extortion, Robbery, and Receiving Stolen Property 395 11.3 Crimes That Invade or Damage Property 412 11.4 End-of-Chapter Material 425

Chapter 12: Crimes against the Public

12.1 Quality-of-Life Crimes 431 12.2 Crimes Targeting Group Conduct 439 12.3 Vice Crimes 453 12.4 End-of-Chapter Material 464

Chapter 13: Crimes against the Government

13.1 Crimes Involving National Security 470 13.2 Crimes Involving Terrorism 480 13.3 Perjury, Bribery, and Obstruction of Justice 485 13.4 End-of-Chapter Material 500

Chapter 14: Appendix A: Case Listings

Please share your supplementary material! 517

Publisher Information

Criminal Law is adapted from a work produced and distributed under a Creative Commons license (CC BY- NC-SA) in 2012 by a publisher who has requested that they and the original author not receive attribution. This adapted edition is produced by the University of Minnesota Libraries Publishing through the eLearning Support Initiative.

This adaptation has reformatted the original text, and replaced some images and figures to make the resulting whole more shareable. This adaptation has not significantly altered or updated the original 2012 text. This work is made available under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike license.

About the Author

Criminal Law is adapted from a work produced by a publisher who has requested that they and the original author not receive attribution. This adapted edition is produced by the University of Minnesota Libraries Publishing through the eLearning Support Initiative. Though the publisher has requested that they and the original author not receive attribution, this adapted edition reproduces all original text and sections of the book, except for publisher and author name attribution.

Unnamed Author received her bachelor’s degree in Spanish from the University of California at Davis in 1985 and her juris doctorate degree from Hastings College of the Law in San Francisco in 1990. Unnamed Author has taught at the community college, four-year, and graduate levels since 1992. Currently, she is a tenured faculty member in Administration of Justice at Hartnell College, a California community college. She is also an attorney and licensed member of the California State Bar. Unnamed Author teaches Criminal Law, Criminal Procedures, Criminal Evidence, Constitutional Law, and Legal Environment of Business.

Throughout her teaching career, Unnamed Author has embraced innovation, which led her to develop the only online Degree and Certificate program at Hartnell College, as well as the only accelerated (three-semester) online degree program in Administration of Justice. Her dedication to students helped her win both campus-wide and external awards, including the Ercia Harden Teaching Excellence Award in 2006. Unnamed Author continues to pursue her commitment to student success and hopes to inspire many more students to pursue a career in law, criminal justice, or paralegal.

Acknowledgments

The author would like to thank the following colleagues who reviewed the text and provided valuable insight for improvement:

• Patti Salinas, Missouri State

• Marie Palladini, California State University Dominguez Hills

• Mark Stelter, Lonestar College, Montgomery

• Donna Nicholson, Manchester Community College

• David Weiden, Indiana University-Purdue University Indianapolis

• Rachel Singer, John Jay College of Criminal Justice

• Allan K. Butcher, University of Texas at Arlington

• Patricia Erickson, Canisius College

• Keith Logan, Kutztown University, Department of Criminal Justice

• Collin K. C. Lau, JD, Chaminade University of Honolulu

• Tracy Hearn, Tarrant County College

• Judith Fitzgerald, JD, Bowie State University

• Linda Markley, Attorney/Lecturer, Kent State University

• Dr. Chinyere Ogbonna-McGruder, Austin Peay State University Clarksville, TN

• John Overton, University of Tennessee at Martin

• Adolfo Barreto, Muskegon Community College

• Judith Revels, University of North Florida

• John M. Delaney Jr., Lewis & Clark Community College

• Gregory W. Bridgeman, Hopkinsville Community College

• Kerry Muehlenbeck, Mesa Community College

• John Claffey, JD, Western New England College

• Diane Sjuts, Metropolitan Community College

• Stephen J. Ziegler, PhD, Indiana University-Purdue University

• Dr. Anthony Schembri, University of Florida

Also, thank you to Vanessa Gennarelli for your guidance, to Denise Powell for your patience, and to Michael Boezi for inspiring the confidence and encouragement to complete this project.

Dedication

I would like to dedicate Criminal Law to my family, both immediate (Scott, Melissa, Tara, and Trent) and extended. Thank you for your unwavering support.

Preface

Welcome to Criminal Law, your guide to a fascinating yet challenging topic. This engaging and interactive textbook will enhance your ability to be successful in academics or a career in criminal justice.

Content

Criminal Law begins with the foundations of law and the legal system and then extensively explores criminal laws and defenses using general state principles, federal law, the Constitution, and the Model Penal Code as guidelines. Although it is neither possible nor desirable to discuss every criminal law, this textbook provides a basic yet thorough overview of the American criminal justice system. After completing Criminal Law, you will be familiar with the nature and sources of law, the court system, the adversarial process, the most prominent crimes, and accompanying criminal defenses.

Approach

Criminal Law uses a two-step process to augment learning, called the applied approach. First, after building a strong foundation from scratch, Criminal Law introduces you to crimes and defenses that have been broken down into separate components. It is so much easier to memorize and comprehend the subject matter when it is simplified this way. However, becoming proficient in the law takes more than just memorization. You must be trained to take the laws you have studied and apply them to various fact patterns. Most students are expected to do this automatically, but application must be seen, experienced, and practiced before it comes naturally. Thus the second step of the applied approach is reviewing examples of the application of law to facts after dissecting and analyzing each legal concept. Some of the examples come from cases, and some are purely fictional. All the examples are memorable, even quirky, so they will stick in your mind and be available when you need them the most (like during an exam). After a few chapters, you will notice that you no longer obsess over an explanation that doesn’t completely make sense the first time you read it—you will just skip to the example. The examples clarify the principles for you, lightening the workload significantly.

Features

Let’s face it, legal textbooks can be dry. This is unfortunate because law, especially criminal law, is an intrinsically compelling topic. To hold your attention and keep you alert, Criminal Law employs a variety of instructional techniques that should engage you from start to finish.

First, chapters contain embedded videos, ethical scenarios, charts, diagrams, and tables to demonstrate the legal concepts and examples provided. These enhancements break up the text and also appeal to various learning styles.

In addition, instead of wasting valuable textbook space by reprinting edited cases, Criminal Law links to cases online. You can read more cases that way, and cases are like examples—they demonstrate the application of law to facts. Also, you can read the entire case exactly the way the judge wrote it, instead of an edited version that has been shrunk to fit into a limited amount of pages.

Have you ever tried to check your answers to review questions in a textbook, only to find that the correct answers are nowhere in sight? Criminal Law gives you the answer to every question at the end of each chapter. Go ahead and check the answers first. Contrary to popular belief, this actually improves—and does not detract from—learning.

In addition, Criminal Law includes hundreds of footnotes that link to online cases and statutes; supplementary links to articles, websites, and statistics online; and plenty of reference material for a term paper or other research project. In short, Criminal Law should contain everything you need to successfully complete your course. It is also a valuable guide to which you can refer throughout your criminal justice career.

Goals

Although academic success is important, I wrote Criminal Law to increase your awareness as you read the newspaper (or read the news online), watch television, or discuss legal situations with friends and colleagues. Law is an integral part of life, yet most people lack the most fundamental understanding of legal concepts. My sincere hope is that once you have finished reading Criminal Law, you will become your own most trusted legal authority.

Preface xiii

Chapter 1: Introduction to Criminal Law

Roadsidepictures – 1st. Dodge Charger With A Police Package – CC BY-NC 2.0.

Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose.

—BMW of North America, Inc. v. Gore, cited in Section 1 “Damages”

1.1 Introduction

Learning Objective

1. Define a crime.

This textbook introduces you to our legal system in the United States, the basic elements of a crime, the specific elements of commonly encountered crimes, and most criminal defenses. Criminal law always involves the government and government action, so you will also review the pertinent sections of the United States Constitution and its principles as they apply to criminal law. By the end of the book, you will be comfortable with the legal framework that governs the careers of criminal justice professionals.

Definition of a Crime

Let’s begin at the beginning by defining a crime. The most basic definition of a crime is “an act committed in violation of a law prohibiting it, or omitted in violation of a law ordering it” (Yourdictionary.com, 2010). You learn about criminal act and omission to act in Chapter 4 “The Elements of a Crime”. For now, it is important to understand that criminal act, omission to act, and criminal intent are elements or parts of every crime. Illegality is also an element of every crime. Generally, the government must enact a criminal law specifying a crime and its elements before it can punish an individual for criminal behavior. Criminal laws are the primary focus of this book. As you slowly start to build your knowledge and understanding of criminal law, you will notice some unique characteristics of the United States’ legal system.

Laws differ significantly from state to state. Throughout the United States, each state and the federal government criminalize different behaviors. Although this plethora of laws makes American legal studies more complicated for teachers and students, the size, cultural makeup, and geographic variety of our country demand this type of legal system.

Laws in a democratic society, unlike laws of nature, are created by people and are founded in religious, cultural, and historical value systems. People from varying backgrounds live in different regions of this country. Thus you will see that different people enact distinct laws that best suit their needs. This book is intended for use in all states. However, the bulk of any criminal law overview is an examination of different crimes and their elements. To be accurate and representative, this book focuses on general principles that many states follow and provides frequent references to specific state laws for illustrative purposes. Always check the most current version of your state’s law because it may vary from the law presented in this book.

Laws are not static. As society changes, so do the laws that govern behavior. Evolving value systems naturally lead to new laws and regulations supporting modern beliefs. Although a certain stability is essential to the enforcement of rules, occasionally the rules must change.

Try to maintain an open mind when reviewing the different and often contradictory laws set forth in this book.

Law is not exact, like science or math. Also try to become comfortable with the gray area, rather than viewing situations as black or white.

Key Takeaway

• A crime is an act committed in violation of a law prohibiting it or omitted in violation of a law ordering it. In general, the criminal law must be enacted before the crime is committed.

Exercise

Answer the following question. Check your answer using the answer key at the end of the chapter.

1. Read Gonzales v. Oregon, 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon’s right to legalize physician-assisted suicide? The case is available at this link: http://www.law.cornell.edu/supct/html/ 04-623.ZS.html.

References

Yourdictionary.com, “Definition of Crime,” accessed August 15, 2010, http://www.yourdictionary.com/crime.

3 Criminal Law

1.2 Criminal Law and Criminal Procedure

Learning Objective

1. Compare criminal law and criminal procedure.

This book focuses on criminal law, but it occasionally touches on issues of criminal procedure, so it is important to differentiate between the two.

Criminal law generally defines the rights and obligations of individuals in society. Some common issues in criminal law are the elements of specific crimes and the elements of various criminal defenses. Criminal procedure generally concerns the enforcement of individuals’ rights during the criminal process. Examples of procedural issues are individuals’ rights during law enforcement investigation, arrest, filing of charges, trial, and appeal.

Example of Criminal Law Issues

Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department store. Moments after they enter the lingerie department, Linda surreptitiously places a bra in her purse. Clara watches, horrified, but does not say anything, even though a security guard is standing nearby. This example illustrates two issues of criminal law: (1) Which crime did Linda commit when she shoplifted the bra? (2) Did Clara commit a crime when she failed to alert the security guard to Linda’s shoplifting? You learn the answer to issue (1) in Chapter 11 “Crimes against Property” and issue (2) in Chapter 4 “The Elements of a Crime” and Chapter 7 “Parties to Crime”.

Example of Criminal Procedure Issues

Review the example in Section 1.2.1 “Example of Criminal Law Issues”. Assume that Linda and Clara attempt to leave the store and an alarm is activated. Linda begins sprinting down the street. Colin, a police officer, just happens to be driving by with the window of his patrol car open. He hears the store alarm, sees Linda running, and begins shooting at Linda from the car. Linda is shot in the leg and collapses. Linda is treated at the hospital for her injury, and when she is released, Colin arrests her and transports her to the police station. He brings her to an isolated room and leaves her there alone. Twelve hours later, he reenters the room and begins questioning Linda. Linda immediately requests an attorney. Colin ignores this request and continues to question Linda about the reason the department store alarm went off. Whether Colin properly arrested and interrogated Linda are criminal procedure issues beyond the scope of this book. However, this example does illustrate one criminal law issue: did

Colin commit a crime when he shot Linda in the leg? You learn the answer to this question in Chapter 5 “Criminal Defenses, Part 1”.

Figure 1.1 Criminal Law and Criminal Procedure

Key Takeaway

• Criminal law generally defines the rights and obligations of individuals in society. Criminal procedure generally concerns the enforcement of individuals’ rights during the criminal process.

Exercises

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Paul, a law enforcement officer, arrests Barney for creating a disturbance at a subway station. While Barney is handcuffed facedown on the ground, Paul shoots and kills him. Paul claims that he accidentally grabbed his gun instead of his Taser. Is this an issue of criminal law or criminal procedure?

2. Read Payton v. New York, 445 U.S. 573 (1980). In Payton, the US Supreme Court held a New York statute unconstitutional under the Fourth Amendment. Did the Payton ruling focus on criminal law or criminal procedure? The case is available at this link: http://supreme.justia.com/us/445/573.

5 Criminal Law

1.3 The Difference between Civil and Criminal Law

Learning Objectives

1. Compare civil and criminal law.

2. Ascertain the primary differences between civil litigation and a criminal prosecution.

Law can be classified in a variety of ways. One of the most general classifications divides law into civil and criminal. A basic definition of civil law is “the body of law having to do with the private rights of individuals” (Yourdictionary.com, 2010). As this definition indicates, civil law is between individuals, not the government. Criminal law involves regulations enacted and enforced by government action, while civil law provides a remedy for individuals who need to enforce private rights against other individuals. Some examples of civil law are family law, wills and trusts, and contract law. If individuals need to resolve a civil dispute, this is called civil litigation, or a civil lawsuit. When the type of civil litigation involves an injury, the injury action is called a tort.

Characteristics of Civil Litigation

It is important to distinguish between civil litigation and criminal prosecution. Civil and criminal cases share the same courts, but they have very different goals, purposes, and results. Sometimes, one set of facts gives way to a civil lawsuit and a criminal prosecution. This does not violate double jeopardy and is actually quite common.

Parties in Civil Litigation

In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or some sort of performance. Anyone who is injured—an individual, corporation, or other business entity—can sue civilly. In a civil litigation matter, the injured party that is suing is called the plaintiff. A plaintiff must hire and pay for an attorney or represent himself or herself. Hiring an attorney is one of the many costs of litigation and should be carefully contemplated before jumping into a lawsuit.

The alleged wrongdoer and the person or entity being sued are called the defendant. While the term plaintiff is always associated with civil litigation, the wrongdoer is called a defendant in both civil litigation and a criminal prosecution, so this can be confusing. The defendant can be any person or thing that has caused harm, including an individual, corporation, or other business entity. A defendant in a civil litigation matter must hire and pay for an attorney even if that defendant did nothing wrong. The right to a free attorney does not apply in civil litigation, so a defendant who cannot afford an attorney must represent himself or herself.

Goal of Civil Litigation

The goal of civil litigation is to compensate the plaintiff for any injuries and to put the plaintiff back in the position that person held before the injury occurred. This goal produces interesting results. It occasionally creates liability or an obligation to pay when there is no fault on behalf of the defendant. The goal is to make the plaintiff whole, not to punish, so fault is not really an issue. If the defendant has the resources to pay, sometimes the law requires the defendant to pay so that society does not bear the cost of the plaintiff’s injury.

A defendant may be liable without fault in two situations. First, the law that the defendant violated may not require fault. Usually, this is referred to as strict liability. Strict liability torts do not require fault because they do not include an intent component. Strict liability and other intent issues are discussed in detail in Chapter 4 “The Elements of a Crime”. Another situation where the defendant may be liable without fault is if the defendant did not actually commit any act but is associated with the acting defendant through a special relationship. The policy of holding a separate entity or individual liable for the defendant’s action is called vicarious liability. An example of vicarious liability is employer-employee liability, also referred to as respondeat superior. If an employee injures a plaintiff while on the job, the employer may be liable for the plaintiff’s injuries, whether or not the employer is at fault. Clearly, between the employer and the employee, the employer generally has the better ability to pay.

Example of Respondeat Superior

Chris begins the first day at his new job as a cashier at a local McDonald’s restaurant. Chris attempts to multitask and pour hot coffee while simultaneously handing out change. He loses his grip on the coffee pot and spills steaming-hot coffee on his customer Geoff’s hand. In this case, Geoff can sue McDonald’s and Chris if he sustains injuries. McDonald’s is not technically at fault, but it may be liable for Geoff’s injuries under a theory of respondeat superior.

Harm Requirement

The goal of civil litigation is to compensate the plaintiff for injuries, so the plaintiff must be a bona fide victim that can prove harm. If there is no evidence of harm, the plaintiff has no basis for the civil litigation matter. An example would be when a defendant rear-ends a plaintiff in an automobile accident without causing damage to the vehicle (property damage) or physical injury. Even if the defendant is at fault for the automobile accident, the plaintiff cannot sue because the plaintiff does not need compensation for any injuries or losses.

Damages

Often the plaintiff sues the defendant for money rather than a different, performance-oriented remedy. In a civil litigation matter, any money the court awards to the plaintiff is called damages. Several kinds of damages may be appropriate. The plaintiff can sue for compensatory damages, which compensate for injuries, costs, which repay

7 Criminal Law

the lawsuit expenses, and in some cases, punitive damages. Punitive damages, also referred to as exemplary damages, are not designed to compensate the plaintiff but instead focus on punishing the defendant for causing the injury (BMW of North America, Inc., 1996).

Characteristics of a Criminal Prosecution

A criminal prosecution takes place after a defendant violates a federal or state criminal statute, or in some jurisdictions, after a defendant commits a common-law crime. Statutes and common-law crimes are discussed in Section 1.6 “Sources of Law”.

Parties in a Criminal Prosecution

The government institutes the criminal prosecution, rather than an individual plaintiff. If the defendant commits a federal crime, the United States of America pursues the criminal prosecution. If the defendant commits a state crime, the state government, often called the People of the State pursues the criminal prosecution. As in a civil lawsuit, the alleged wrongdoer is called the defendant and can be an individual, corporation, or other business entity.

The attorney who represents the government controls the criminal prosecution. In a federal criminal prosecution, this is the United States Attorney (United States Department of Justice, 2010). In a state criminal prosecution, this is generally a state prosecutor or a district attorney (Galaxy.com, 2010). A state prosecutor works for the state but is typically an elected official who represents the county where the defendant allegedly committed the crime.

Applicability of the Constitution in a Criminal Prosecution

The defendant in a criminal prosecution can be represented by a private attorney or a free attorney paid for by the state or federal government if he or she is unable to afford attorney’s fees and facing incarceration (Alabama v. Shelton, 2001). Attorneys provided by the government are called public defenders (18 U.S.C., 2010). This is a significant difference from a civil litigation matter, where both the plaintiff and the defendant must hire and pay for their own private attorneys. The court appoints a free attorney to represent the defendant in a criminal prosecution because the Constitution is in effect in any criminal proceeding. The Constitution provides for the assistance of counsel in the Sixth Amendment, so every criminal defendant facing incarceration has the right to legal representation, regardless of wealth.

The presence of the Constitution at every phase of a criminal prosecution changes the proceedings significantly from the civil lawsuit. The criminal defendant receives many constitutional protections, including the right to remain silent, the right to due process of law, the freedom from double jeopardy, and the right to a jury trial, among others.

1.3 The Difference between Civil and Criminal Law 8

Goal of a Criminal Prosecution

Another substantial difference between civil litigation and criminal prosecution is the goal. Recall that the goal of civil litigation is to compensate the plaintiff for injuries. In contrast, the goal of a criminal prosecution is to punish the defendant.

One consequence of the goal of punishment in a criminal prosecution is that fault is almost always an element in any criminal proceeding. This is unlike civil litigation, where the ability to pay is a priority consideration. Clearly, it is unfair to punish a defendant who did nothing wrong. This makes criminal law justice oriented and very satisfying for most students.

Injury and a victim are not necessary components of a criminal prosecution because punishment is the objective, and there is no plaintiff. Thus behavior can be criminal even if it is essentially harmless. Society does not condone or pardon conduct simply because it fails to produce a tangible loss.

Examples of Victimless and Harmless Crimes

Steven is angry because his friend Bob broke his skateboard. Steven gets his gun, which has a silencer on it, and puts it in the glove compartment of his car. He then begins driving to Bob’s house. While Steven is driving, he exceeds the speed limit on three different occasions. Steven arrives at Bob’s house and then he hides in the bushes by the mailbox and waits. After an hour, Bob opens the front door and walks to the mailbox. Bob gets his mail, turns around, and begins walking back to the house. Steven shoots at Bob three different times but misses, and the bullets end up landing in the dirt. Bob does not notice the shots because of the silencer.

In this example, Steven has committed several crimes: (1) If Steven does not have a special permit to carry a concealed weapon, putting the gun in his glove compartment is probably a crime in most states. (2) If Steven does not have a special permit to own a silencer for his gun, this is probably a crime in most states. (3) If Steven does not put the gun in a locked container when he transports it, this is probably a crime in most states. (4) Steven committed a crime each time he exceeded the speed limit. (5) Each time Steven shot at Bob and missed, he probably committed the crime of attempted murder or assault with a deadly weapon in most states. Notice that none of the crimes Steven committed caused any discernible harm. However, common sense dictates that Steven should be punished so he does not commit a criminal act in the future that may result in harm.

Table 1.1 Comparison of Criminal Prosecution and Civil Litigation

Feature Criminal Prosecution Civil Litigation

Victim No Yes. This is the plaintiff.

Harm No Yes. This is the basis for damages.

Initiator of lawsuit Federal or state government Plaintiff

Attorney for the initiator US Attorney or state prosecutor Private attorney

Attorney for the defendant Private attorney or public defender Private attorney

Constitutional protections Yes No

9 Criminal Law

Figure 1.2 Crack the Code

Law and Ethics: The O. J. Simpson Case

Two Different Trials—Two Different Results

O. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of victims Ron Goldman and his ex-wife, Nicole Brown Simpson. In the criminal prosecution, which came first, the US Constitution provided O. J. Simpson with the right to a fair trial (due process) and the right to remain silent (privilege against self-incrimination). Thus the burden of proof was beyond a reasonable doubt, and O. J. Simpson did not have to testify. O. J. Simpson was acquitted, or found not guilty, in the criminal trial (Linder, D., 2010).

In the subsequent civil lawsuit, the burden of proof was preponderance of evidence, which is 51–49 percent, and O.

1.3 The Difference between Civil and Criminal Law 10

J. Simpson was forced to testify. O. J. Simpson was found liable in the civil lawsuit. The jury awarded $8.5 million in compensatory damages to Fred Goldman (Ron Goldman’s father) and his ex-wife Sharon Rufo. A few days later, the jury awarded punitive damages of $25 million to be shared between Nicole Brown Simpson’s children and Fred Goldman (Jones, T. L., 2010).

1. Do you think it is ethical to give criminal defendants more legal protection than civil defendants? Why or why not?