5 Constitutional and Criminal Law in the U.S. Criminal Justice System

Overview

Trying to understand how the various components of the U.S. Criminal Justice System work together or sometimes don’t work at all in delivering a fair, equitable, and impartial judicial system is much like trying to assemble an enormous jigsaw puzzle. Hopefully, the many different pieces will come together to form a complete picture; however, finding where and how each piece “fits” into the “big picture” can be tedious, time-consuming, and challenging. The various chapters of this book offer definitions and explanations as to how the many components of the U.S. Criminal Justice System (law enforcement, courts, corrections, law) “fit together.”

Chapter 5 explores one of the common, or overarching, aspects of the plethora of “pieces” in the U.S. Criminal Justice System—the law. Various “bodies of law” exist; however, not every body of law affects or is part of the U.S. Criminal Justice System. Chapter 5 focuses explicitly on constitutional law and criminal law—the two bodies of law most relevant to the U.S. Criminal Justice System. This chapter offers insight into how constitutional law serves as the “framework” for the entire U.S. Criminal Justice System to balance individuals’ rights against the government’s duties and responsibilities. The chapter also addresses how criminal law is created and enforced in an effort to define criminal offenses, set boundaries for societal behavior, prevent harm, protect property, and maintain public order.

Next, Chapter 5 addresses recent trends in constitutional and criminal law and offers some insight into the ever-changing dynamics of constitutional and criminal law. Chapter 5 concludes by identifying potential law-related employment positions, explaining the requirements for obtaining these positions, and addressing the protocols and processes involved in pursuing these positions.

5.1 What is a “Body of Law” and which bodies of law are most relevant to the U.S. Criminal Justice System?

5.1.1 Body of Law Defined

Body of Law: “A body of law is a collection of all the rules and laws people in a specific place must follow. It’s like a big book that tells everyone what they can and cannot do. For example, the California Code is a body of laws that people in California must follow” (LSData, n.d., para. 1).

There are several bodies of law applicable in the United States. See Table 5.1.

Table 5.1

Bodies of Law (With Definitions)

5.1.2 Specific Bodies of Law Most Relevant to the U.S. Criminal Justice System

Not all bodies of law are directly relevant to the U.S. Criminal Justice System. The two bodies of law having the greatest “presence” in or effect upon the U.S. Criminal Justice System are Constitutional Law and Criminal Law. These two bodies of law are defined as follows:

5.1.2.1 Constitutional Law

Defined: “1. The body of law deriving from the U.S. Constitution and dealing primarily with governmental powers, civil rights, and civil liberties. 2. The body of legal rules that determine the constitution of a state or country with a flexible constitution” (Thomson/West, 2000, p. 136).

5.1.2.2 Criminal Law

Defined: “The body of law defining offenses against the community at large, regulating how suspects are investigated, charged and tried, and establishing punishments for convicted offenders. Also called Penal Law” (Thomson/West, 2000, p. 170).

5.2 Constitutional Law Issues in the U.S. Criminal Justice System

5.2.1Historical Overview of the Creation of the U.S. Constitution

To better understand how the Constitution is relevant to the U.S. criminal justice system and more specifically how it interacts with criminal law, it is essential to have a basic understanding of the origins and structure/format of the U.S. Constitution, especially the Bill of Rights.

There are several exceptional books that offer in-depth discussions of the details of the historical and political events leading to the creation of the U. S Constitution (see Further Reading). Section 5.2.1 offers a brief overview of the historical and political factors that influenced the creation, organization and adoption of the Constitution and eventually the Bill of Rights (Hall & Feldmeier, 2017):

• Pre-1500s: North America was populated with numerous Indigenous American tribes and civilizations. The influence of these peoples on the creation of the Constitution and Bill of Rights was largely lost in history and not fully recognized until recently (see Section 5.2.1). During this time there were numerous explorations and activities in North America by European countries with the first non-indigenous settlement being St. Augustine, Florida, settled by Spain in 1565.
• 1500s-early 1700s: European nations expanded exploration and settlement in New England and along the Atlantic Coast with permanent settlements being established by the British in Jamestown, Virginia in 1607 and Plymouth, Massachusetts in 1620. Governmental operations and the laws of the colonies generally adhered to the practices of the founding country, which in the case of Great Britain meant adherence to the strict rule of Parliament and the King. Over time, the 13 colonies slowly grew to resent many of the oppressive British legal practices, including those that related to crimes (arrest, search and seizure, and trial). These harsh British practices would later become the focus of attention during the formation and adoption of the Constitution and the Bill of Rights.
• 1774: Interestingly, two years prior to the signing of the Declaration of Independence, the colonies, recognizing the need for some form of central government, formed the Continental Congress. Unfortunately, this body had little, if any, actual legislative or enforcement power. Its main role seemed to be to support the up-coming American Revolutionary War through foreign relations and fundraising activities.
• 1776: The 13 colonies issued their joint Declaration of Independence and with the American Revolutionary War quickly following.
• 1781: The Articles of Confederation were adopted and the Congress of the Confederation was created, replacing the Continental Congress. There was still no meaningful centralized government or governing document. Each of the former colonies (now states) adopted the laws and practices they believed were appropriate.
• 1781-1783: Due largely to the military victory over the British forces at the Battle of Yorktown, and subsequently through the signing of the Treaty of Paris (1782-83), independence of the colonies. After independence, each colony depended largely on its own government and laws.
• 1781-1789: The Congress of the Confederation served as the central governing body over the states. It remained weak and ineffective as a federal governing body and lacked clear authority to enact or enforce federal legal standards over the states. These weaknesses ultimately demonstrated the need to develop the Constitution.
• May-September 1787: The Constitutional Convention convened in Philadelphia and was tasked with the job of creating a centralized government governed by a federal Constitution. After lengthy debates about various plans, proposals and options (proceedings that remain somewhat secretive today as there exist no specific minutes/recorded details), and after 40 hours of drafting, a 4,440-word document was created (Hall & Feldmeier, 2017, p. 17). Thirty-nine of the 55 delegates signed the new document, and those who did not sign refused due to the lack of a bill of rights. “At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade” (The White House, n.d., para. 7). The newly created Constitution was signed on September 17, 1787, now recognized as Constitution and Citizenship Day.
• 1787-1790: Over the period December 1787 to May 1790, all 13 states eventually ratified the proposed Constitution. Twelve of the thirteen states did so rather quickly; however, Rhode Island refused ratification. Ultimately, Rhode Island ratified the document in 1790 after ”Congress threatened to sever the new nation’s commercial relations with Rhode Island” (Hall & Feldmeier, 2017, p. 18).
• 1791: Per the discussions at the Constitutional Convention, “it was agreed that a bill of rights would be added immediately after the Constitution was ratified” (Hall & Feldmeier, 2017, p. 21). While 12 potential amendments were proposed, only 10 (the current first 10 amendments to the Constitution) were eventually ratified in 1791.

Indigenous American Contributions. Until very recently there was very little, if any, mention or discussion of the role indigenous American nations played in the founding of the United States or the creation of the U.S. Constitution. However, over the past 50 years this oversight/omission has gradually undergone review, updating and revision (EDSITEment, n.d.).

The iconic framers of the Constitution were indeed keenly aware of the many contributions of Indigenous Americans to the formation of the American government and to the creation of the Constitution. Indeed, they openly recognized their many contributions.

Additionally, new scholarship into the founders’ influences as they drafted the Constitution has revealed that many of the ideas that formed the cornerstones of the American government may have their origins in Indigenous principles of government. Benjamin Franklin was responsible for negotiating treaties with the Iroquois Confederacy, remarked in 1751 that the Six Nations should serve as a model for the “ten or a Dozen English Colonies […]” working together. During the Constitutional Convention, John Adams suggested that the framers should study “the ancient Germans and modern Indians” because of their well-devised separation of powers within their governments. These influences came full circle as, throughout the nineteenth and twentieth centuries, Indigenous nations created their own constitutions, many of which were modeled after the U.S. Constitution. (EDSITEment, n.d., para. 28)

The many noteworthy contributions seemed to have been lost in the history of over 200 years of strained, and often hostile, relations between the various tribal nations and the federal and state governments. Recently, however, modern historians, political scientists and Constitutional scholars have begun to “rediscover” the very important role Indigenous Americans played in the development of the United States and to the U.S. Constitution.

Sadly, it took until 1988 for the U.S. Senate to pass a resolution “officially” acknowledging the contributions of the Iroquois Confederacy to the development of the U.S. Constitution (A Concurrent Resolution, 1988).

5.2.2 Structure/Format of the U.S. Constitution

5.2.2.1 Three Branches of the Federal Government

The U.S. Constitution consists of a Preamble, seven numbered Articles, and 27 ratified Amendments. It establishes three separate branches of federal government: the Legislative Branch (Congress) which enacts federal criminal law is found in Article I, the Executive Branch (President) which approves and enforces federal criminal law is found in Article II, and the Judicial Branch (Courts) which interprets federal issues relating to criminal law is found in Article III.

The Framers of the Constitution structured the government in this way in order to create a system of checks and balances that would prevent one branch of government or group of individuals from becoming too powerful or exercising total control over government functions such as making and enforcing criminal law (Hall & Feldmeier, 2017).

5.2.2.2 How the Checks and Balances Process Affect Criminal Law: An Example

A review of the Supreme Court case of United States v. Alvarez (2012) provides an excellent overview of how the three government branches of the federal government independently exercise their Constitutional powers over criminal offenses.

The Legislative Branch: Congress passed the Stolen Valor Act of 2005, making it a crime for an individual to misrepresent that they have received high military honors.

The Executive Branch: Through the various federal law enforcement agencies such as the Federal Bureau of Investigation and the Justice Department, those individuals found in violation of the law were arrested and subsequently prosecuted.

The Judicial Branch: In 2012, in the United States v. Alvarez case, the U.S. Supreme Court ruled that the law was unconstitutional because it infringed on the right to free speech protected by the First Amendment (U.S. Const. amend. I). However, in its decision, the Court offered guidance as to how Congress could “cure” the Constitutional defect by amending/revising the law and criminalizing an act (such as fraud), not just speech. “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say, offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment” (United States v. Alvarez, 2012, p. 723).

The Legislative Branch: Less than a year after Alvarez was decided, Congress responded with legislation, the Stolen Valor Act of 2013, that corrected the constitutionally defective problems with the original 2005 legislation. Following the example provided by the Court, Congress revised the law to address situations where the misrepresentation regarding military honors involved attempts to fraudulently obtain goods or services. Thus, the revised legislation continued the ban on making false claims of military honors under circumstances not protected by the First Amendment (U.S. Const. amend. I).

5.2.3 State Constitutions

A complete understanding of the relationship between constitutional law and criminal law requires a brief overview of the relationship between the U.S. Constitution and the constitutions of the various states.

5.2.3.1 Relationship of state constitutions to the U.S. Constitution

While there are many similarities between the format and content of the U.S. Constitution and the constitutions of the various states, there are also some significant differences. Generally, the U.S. Constitution provides individuals with basic or minimum protections. However, the state constitutions can, and often do, provide individuals with additional or more protective rights.

5.2.3.2 Similarities and Differences Between the U.S. Constitution and State Constitutions

The best example of this “states can provide more rights” concept relates to the authority of law enforcement officers to control passengers of vehicles that have been lawfully stopped for a traffic violation.

In a series of decisions dating back to the case of Maryland v. Wilson (1997), the U.S. Supreme Court, as well as several federal circuit courts, have interpreted the “unreasonable seizure” aspect of the Fourth Amendment (U.S. Const. amend. IV) to mean that, under federal Fourth Amendment law, it is not unreasonable for a law enforcement officer to order a passenger out of a vehicle, ask them for identification, and even make the passenger stand by and not leave the scene of the traffic stop. Most recently, in the case of Arizona v. Johnson (2009), the U.S. Supreme Court reaffirmed the rule that, under the federal Fourth Amendment, a reasonable passenger would understand that during the time a car is lawfully stopped, they are not free to terminate the encounter with the police and move about at will.

However, the courts in Washington, citing Article I, §7 of the Washington Constitution, have come to quite a different conclusion regarding passengers’ rights during a traffic stop. In the case of State v. Rankin (2004), the Washington Supreme Court, citing Article I, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” U.S. Const. art. I, § 7) held that this provision of the state constitution provides far more protection from governmental interference with an individual’s liberty than does the Fourth Amendment (U.S. Const. amend. IV). In State v. Rankin (2004), the court held that a passenger may not be asked for identification during a traffic stop and, further, a passenger is free to move around or even leave the scene of the traffic stop unless a law enforcement officer has some independent basis to support the request for identification or to restrict the movement of the passenger.

5.2.3.3 Examples of state constitutions

Explore examples of state constitutions for all of the states, and for American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands as well.

5.2.4 Relationship of Constitutional Law to Criminal Law

5.2.4.1 How Constitutional Violations Affect Criminal Law

While the U.S. Constitution contains a multitude of rights and protections, its provisions of the Bill of Rights (Amendments 1-10), the Eighth Amendment (U.S. Const. amend. VIII) and the Fourteenth Amendment (U.S. Const. amend. XIV) that are the most relevant to the enactment, investigation, enforcement, and prosecution of criminal law (see Table 5.2). The two key principles related to the relationship between the Constitution and criminal law are 1) Substantive Criminal Law, efforts to enact legislation that attempts to criminalize any right protected by the Constitution will be declared unconstitutional and not enforceable, and 2) Procedural Criminal Law: evidence obtained in violation of the requirements and prohibitions found in the Constitution is not admissible against a defendant in a criminal trial (known as the Exclusionary Rule), defined below:

1. Evidence. Any rule that excludes or suppresses evidence that does not satisfy a minimum standard of probative value <despite many exceptions, hearsay has long been inadmissible under an exclusionary rule>. 2. A rule that excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights<in accordance with the exclusionary rule, the court did not admit the drugs into evidence because they had been obtained during a warrantless search of the defendant’s home>. (Thomson/West, 2000, p. 249)

To quickly browse annotations and explanations for the U.S. Constitution, visit the Constitution Annotated site.

Table 5.2

Constitutional Rights

Source of Right	Right	Specific Constitutional Language
Article 1 § 9 (U.S. Const. art. I, § 9)	Habeas Corpus Ex Post Facto (federal)	The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed.
Article 1 § 10 (U.S. Const. art. I, § 10)	Ex Post Facto (state)	No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Fourth Amendment (U.S. Const. amend. IV)	Unreasonable Searches Unreasonable Seizures Probable Cause Oath/Affirmation Particular Description-Place Particular Description-Item Seized	The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment (U.S. Const. amend. V)	Grand Jury Indictment Double Jeopardy Self-Incrimination Due Process (federal) Deprivation of Property	No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment (U.S. Const. amend. VI)	Speedy Trial Public Trial Impartial Jury Informed of Charges Confront Witnesses Right to Counsel	In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Eighth Amendment (U.S. Const. Amend. VIII)	Excessive Bail Cruel/Unusual Punishment	Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment (U.S. Const. amend. XIV)	Due Process (state) Equal Protection	1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

5.2.4.1.1 First Amendment

The First Amendment (U.S. Const. amend. I) is relatively short (only 45 words); however, it contains many significant rights/protections: religion, speech, press, peaceably to assemble, to petition the government. The primary rights/protections in the First Amendment relevant to criminal law involve the rights relating to speech and peaceable assembly.

• Speech: Both state and federal courts have decided dozens of cases defining and interpreting what “Freedom of Speech” means and what speech is protected and not protected (or receives less protection). With regard to criminal law, it is important to focus on the court decisions that have determined the nature of speech that receives little or no protection under the First Amendment, as those categories of speech do not enjoy Constitutional protection and can, therefore, be criminalized. It is also important to understand that the concept of “speech” includes words and, in some cases, actions or conduct (see United States v. Alvarez, 2012, in §5.2.4.1). Currently, the five categories of speech receiving little or no Constitutional protection include 1) child pornography; 2) defamation (making false statements that adversely affect someone’s reputation or image—normally processed through a civil action brought by the subject of the speech against the person or entity (media) making the statement); 3) fighting words (including harassment, threats, offensive and hate speech; 4) obscenity; and 5) commercial speech (Administrative Office of the U.S. Courts, n.d.-b).
• Below are examples of Washington state criminal offenses that involve speech not protected by the Constitution:
  • Pornography/Obscenity: Promoting Pornography, Wash. Rev. Code § 9.68.140 (1982)
  • Fighting Words: Threats Against Governor, Wash. Rev. Code § 9A.36.090 (1982)
  • Commercial Speech: False, Misleading or Deceptive Advertising, Wash. Rev. Code § 9.04.050 (1961)
  • Peaceably Assemble: The key part of this provision of the First Amendment (U.S. Const. amend. I) is “peaceably.” Courts have consistently held certain limitations/restrictions regarding what groups of people can do or where they can gather. Criminal offenses that regulate what is known as the time, place, or manner of public gatherings (and not the content or cause of the actions) will be upheld as being constitutional.
  • Below are examples of Washington state criminal offenses that involve crowds/assembly actions not protected by the U.S. Constitution:
  • Failure to Disperse: Wash. Rev. Code § 9A.84.020 (1975)
  • Disorderly Conduct: Wash. Rev. Code § 9A.84.030 (1975)
• Peaceably Assemble: The key part of this provision of the First Amendment (U.S. Const. amend. I) is “peaceably.” Courts have consistently held certain limitations/restrictions regarding what groups of people can do or where they can gather. Criminal offenses that regulate what is known as the time, place, or manner of public gatherings (and not the content or cause of the actions) will be upheld as being constitutional.
• Below are examples of Washington state criminal offenses that involve crowds/assembly actions not protected by the U.S. Constitution:
  • Failure to Disperse: Wash. Rev. Code § 9A.84.020 (1975)
  • Disorderly Conduct: Wash. Rev. Code § 9A.84.030 (1975)

5.2.4.1.2 Fourth Amendment

What exactly does the Fourth Amendment say?

The drafting and adoption of the Fourth Amendment (U.S. Const. amend. IV) as part of the Bill of Rights was an effort to strike a balance between the needs of the government when investigating and prosecuting crimes and the privacy concerns of individuals. The need for such protections grew out of the historical abuse and bad practices relating to search and seizure activities by British officials in the American Colonies (The Historian, 2023).

The Fourth Amendment consists of two separate and distinct sections. The first section reads as follows “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (U.S. Const. amend. IV). This section reflects the idea that individuals have a fundamental right to privacy that is Constitutionally protected. As set out in Katz v. United States (1967), the test as to when Fourth Amendment protections from governmental interference apply is whether or not “a person has a constitutionally protected reasonable expectation of privacy” (Katz v. United States, p. 360) in the area to be searched.

Whether a particular type of search is considered reasonable in the eyes of the law, is determined by balancing two important interests. On one side of the scale is the intrusion on an individual’s Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety. (Administrative Office of the U.S. Courts, n.d.-c, para. 1)

It is important to note that not all searches and seizures are prohibited, only those determined to be unreasonable. Consistent with the decision in Katz v. United States (1967), where an individual has no reasonable expectation of privacy there can be no Fourth Amendment (U.S. Const. amend. IV) protection from government interference.

The second section of the Fourth Amendment reads as follows: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (U.S. Const. amend. IV). This section sets out the following procedural and administrative requirements in order to obtain, and execute, a Constitutionally valid search warrant:

• Probable cause: Basically, a reasonable belief (based on specific articulable facts) that evidence related to a crime will be found in the place to be searched.
• Supported by oath or affirmation: Oath or affirmation required by person attesting to the supporting facts in the affidavit.
• Particularly describing a) the place to be searched and b) the items to be seized: a reasonable person could identify the location involved and the items to be seized.

In addition to the requirements specifically set out in the Fourth Amendment (U.S. Const. amend. IV), the U.S. Supreme Court has consistently held that search warrants must be issued by neutral and detached officials. “Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search” (Shadwick v. City of Tampa, 1972, p. 350).

Exceptions to Fourth Amendment Protections

Although the Fourth Amendment (U.S. Const. amend. IV) offers individuals a broad “blanket” of Constitutional protection, courts have interpreted the “unreasonable” aspect of the amendment to mean that there are certain factual settings in which government officials may search (and in some case seize) without probable cause or a warrant without engaging in Constitutional unreasonableness. Here are some examples of settings where searches/seizures may occur without requiring probable cause or a search warrant:

1. Open fields: There is no reasonable expectation of privacy in property that is not part of the curtilage (land adjacent to a dwelling or frequently used building). Example: while a frequently used barn on a 10-acre lot would require a search warrant, the unfenced, unused, land several miles from a house would not.
2. Exigent circumstances: Life-threatening or emergency situations involving an imminent threat to persons or property or the destruction of evidence. Example: police officers who hear someone shouting “Help, I’ve been shot!” coming from an apartment may enter the apartment without a search warrant for the purpose of safety and security.
3. Incident to a valid arrest: Where someone has been lawfully arrested, they may be searched with the need for a search warrant or additional probable cause.
4. Plain view: Where an officer is lawfully present (standing outside of a truck looking into the open bed), items that can be readily identified as subject to seizure (marijuana in some jurisdictions) may be seized.
5.  Consent: Must be freely and voluntarily given by someone with legal authority to do so.
6. Automobile searches: At the federal level, if an officer has probable cause to search a vehicle located in a public place, then the courts have held that there is no need to obtain a search warrant. However, many states require officers to have probable cause and obtain a search warrant to search a vehicle.
7. Stop and Frisk (Terry stop): Where a police officer has a reasonable suspicion that a crime has been committed, a reasonable detention of an individual may take place for the sole purpose of conducting an investigation; and should the officer also have a reasonable fear of personal safety (or the safety of others) the officer may engage in a physical “pat down” of the outer garments of the person detained for weapons (Terry v. Ohio, 1968).

5.2.4.1.3 Fifth Amendment

What exactly does the Fifth Amendment require?

1. The Fifth Amendment (U.S. Const. amend. V) contains five specific provisions addressing a variety of Constitutionally protected rights. These rights are as follows:
2. Grand Jury: In federal criminal proceedings, and in some state criminal proceedings, a defendant cannot be tried unless he/she has been indicted by a Grand Jury. See Wash. Rev. Code § 10.27.150 (1971) for an overview of how a Grand Jury operates in Washington state.
3. Double Jeopardy: An individual may not be tried twice, by the same jurisdiction, for the same criminal offense. Trials that do not conclude with a verdict (acquittal or conviction), are deemed to be a mistrial (in that they have not rendered a verdict) and therefore the defendant may be retried. Also, some criminal offenses (bank robbery, trafficking in drugs) violate both federal and state law. Accordingly, a defendant can be tried in each of those jurisdictions for committing a single offense as these are two different prosecuting jurisdictions.
4. Self-Incrimination[GL/]: A defendant may not be forced/compelled to offer testimonial evidence against themselves. Further, all statements given by a defendant must be given intelligently, freely and voluntarily. See Miranda v. Arizona (1966).
5. Due Process: All aspects of a criminal investigation and trial must be conducted in a fundamentally fair way, in full compliance with all applicable laws and regulations, so as to provide a defendant with a meaningful protection of rights. This “fairness” provision operates to ensure that all investigative and trial techniques and processes, even those not specifically mentioned in the Constitution, are not biased or involve coercion. Examples: identification practices, interrogation techniques, language comprehension requirements.
6. Deprivation of Property; The Supreme Court has held that the government (federal, state, or municipal) can exercise the power of eminent domain to take private property for public use (roads, parks, utility right of ways, etc.), as long as just compensation is paid to the property owner. See Kelo v. City of New London (2005).

5.2.4.1.4 Sixth Amendment

What exactly does the Sixth Amendment require?

The Sixth Amendment (U.S. Const. amend. VI) contains six specific provisions addressing a variety of Constitutionally protected rights. These rights are as follows:

• Speedy Trial: While there is no specific time frame for initiating trial proceedings against a defendant mentioned in the Constitution, many jurisdictions have, by statute or court rules, adopted very specific deadlines and timeframes that must be satisfied or a defendant is entitled to have the criminal charges dismissed. See Washington state’s Superior Court Criminal Rules for “Time for Trial” (Wash. Sup. Ct. R. 3.3). In Barker v. Wingo (1972), when reviewing a five-year delay in a trial for compliance with the Sixth Amendment (U.S. Const. amend. VI), the Supreme Court noted “The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed” (p. 530). The Court then went on to identify and discuss the various factors that might affect a final determination as to whether the speedy trial provision of the Sixth Amendment was satisfied.
• Public Trial: There are several reasons behind the Constitutional requirement that criminal proceedings be open and accessible to the public: maintaining public oversight of government operations, the free and open exchange of information, the appearance of trust, integrity and transparency, the dissemination and “free flow” of government treatment of its citizens. It should be noted that in keeping with the concept of protecting youthful offenders from adverse publicity, juvenile proceedings are generally not open to the public). However, there are some circumstances where a judge may close a trial to the public, such as national security, to protect the identity of a witness or to ensure the jurors’ safety. Decisions regarding the open or closed status of a criminal trial are made by the trial judge after a presentation of evidence by both sides.
• Impartial Jury: Contrary to popular belief, the Sixth Amendment (U.S. Const. amend. VI) does not require that a criminal defendant be provided a jury “of his/her peers.” The language found in the Sixth Amendment is “an impartial jury.” The generally accepted standard is that a jury is impartial if it can render a verdict based solely on the evidence and the law. Through the process of questioning potential jurors (known as voir dire) attorneys for both sides have the opportunity to discover any bias, prejudice or motive a juror might have and can then move to remove jurors whose response seem to disclose a lack of impartiality (challenge for cause). Further, each side can remove jurors (each jurisdiction decides how many) for no cause (peremptory challenge); however, potential jurors may not be excluded based on impermissible characteristics such as race, gender, religion, etc., see Batson v. Kentucky (1986). NOTE: There is no Constitutional right to a jury trial if the maximum possible period of confinement is less than six months, see Baldwin v. New York (1970).
• Informed of Charges: The full and complete notice of the specific charges against a defendant is critical in providing the defendant with due process and the opportunity to present a meaningful defense. Notice of the specifics of pending charges (including the specific statute violated) is usually part of the arraignment process. Should a defendant not be satisfied with the notice provided by the government, a motion can be made requesting that the trial judge order the government to provide. Should additional charges be added after a defendant has been arraigned, the defendant must be re-arraigned or the added charges are impermissible. As noted in Cole v. Arkansas (1948):
• No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. (p. 201)
• Confront Witnesses: “Confront” as used in this amendment generally means that a defendant in a criminal trial has a Constitutional right to question, and/or cross-examine, all witnesses providing testimony as part of the trial proceedings. The remedy for violation of this right can be that some, or all, of the testimony is stricken from the record or, in some cases, the trial judge can declare a mistrial and order a new trial. In extremely rare instances (for the safety of a witness or to prevent emotional trauma to a child), the witness may be isolated outside of the courtroom and the interaction with the witness is then conducted by electronic means.
• Right to Counsel: Although the concept of “right to counsel” seems very simple on its face, it has taken the U.S. Supreme Court several cases, dating back to the 1930s, to resolve what that right means, specifically and exactly, in different settings. Below is a chronological listing of the most important “right to counsel” Supreme Court cases and how each decision refined the exact meaning of the Sixth Amendment’s protections (U.S. Const. amend. VI):
  • Powell v. Alabama (1932): Applying the Due Process provision of the Fifth Amendment (U.S. Const. amend. V) rather than the Sixth Amendment (U.S. Const. amend. VI), the Court held that, in capital murder cases, a defendant who could not afford an attorney or defend himself/herself then the trial court must appoint an attorney to represent the defendant.
  • Johnson v. Zerbst (1938): Applying the Sixth Amendment (U.S. Const. amend. VI), the Court held that the right to counsel applied to all federal prosecutions and that any waiver of this right must be engaged in by a competent defendant.
  • Hamilton v. Alabama (1961): In holding that the Sixth Amendment’s right to counsel (U.S. Const. amend. VI) “attaches” in criminal justice proceedings at the “critical stage” (at 54) of the proceedings, the Court held that the Fourteenth Amendment (U.S. Const. amend. XIV) was violated when a defendant was not provided an attorney at the time of arraignment.
  • In re Gault (1967): Applying the Due Process Clause of the Fourteenth Amendment (U.S. Const. amend. XIV), the Court held that juveniles are entitled to many of the fundamental rights found in the Bill of Rights (remain silent, notification of charges, confront witnesses), including the Sixth Amendment’s Right to Counsel (U.S. Const. amend. VI). Further, in many state jurisdictions, juveniles are statutorily provided many attorney-related rights not applicable/available to adults. See Wash. Rev. Code § 13.40.740 (2021).
  • Gideon v. Wainwright (1972): The Court applied the Sixth Amendment (U.S. Const. amend. VI) and held that the right to counsel applied in all felony proceedings.
  • Argersinger v. Hamlin (1972): In a unanimous decision, the Court held the Sixth Amendment (U.S. Const. amend. VI) and the Fourteenth Amendment (U.S. Const. amend. XIV) that the right to counsel applied to all cases where there was the possibility that the defendant could be sentenced to a jail term.
  • Brewer v. Williams (1977): The Court held that a defendant must intelligently, knowing and voluntarily waive fundamental Constitutional rights such as the right to remain silent (Fifth Amendment, U.S. Const. amend. V) and right to counsel (Sixth Amendment, U.S. Const. amend. VI).
  • Scott v. Illinois (1979): The Court clarified the Argersinger v. Hamlin (1972) case and held that it is an actual sentence of imprisonment, not the possibility of imprisonment, that triggers the Sixth Amendment’s right to counsel (U.S. Const. amend. VI). Said another way, if the criminal offense committed does not allow for a sentence of imprisonment (such as traffic offenses) or the government represents on the record that imprisonment will not be pursued as a sentencing option if the defendant is convicted, then a defendant does not have a Sixth Amendment right to counsel.
  • McKaskle v. Wiggins (1984): Where a defendant has expressed a valid waiver of the right to counsel and has complied with the standards imposed in the Brewer v. Williams (1977) case, a trial judge may appoint a “standby counsel” who participates in the trial and is prepared to assist the defendant if requested.
  • Alabama v. Shelton (2002): The Court extended the holding of the Argersinger v. Hamlin (1972) case to mean that even in cases where a sentence involving the possibility of confinement was suspended, the right to counsel applies.
  • Iowa v. Tovar (2004): The Court held that where a defendant waived the Sixth Amendment right to counsel (U.S. Const. amend. VI), no warning regarding the risks of this decision was required to be given by the trial judge.
  • Indiana v. Edwards (2008): The Court held that in cases where a defendant is competent to stand trial but is found to have serious mental issues that might affect self-representation, a state is permitted to require the trial judge to appoint counsel to represent the defendant.

Further, for the Sixth Amendment’s “right to counsel” (U.S. Const. amend. VI) to be meaningful, the Supreme Court has insisted that a criminal defendant be provided effective assistance of counsel. The two-part test for making that determination was set out in Strickland v. Washington (1984) as follows:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (p. 687)

5.2.4.1.5 Eighth Amendment

The provisions of the Eighth Amendment (U.S. Const. amend. VIII) most relevant to the U.S. Criminal Justice System are: 1) excessive bail shall not be required; 2) nor excessive fines imposed; 3) nor cruel and unusual punishments inflicted. See §5.4.3 for a discussion of recent developments relating to bail.

• Bail: Contrary to popular belief, there is no Eighth Amendment “right to bail” (U.S. Const. amend. VIII). The right that is found in the Eighth Amendment is that excessive bail is prohibited. The singular issue in reviewing bail is whether the bail imposed is excessive: “If bail in an amount greater than that usually fixed for serious charges of crimes is required in the case of any of the petitioners, that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved” (Stack v. Boyle, 1951, p. 6).
• Excessive Fines: In the case of United States v. Bajakajian (1998), the U.S. Supreme Court clarified how this particular right was to be interpreted: “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish” (p. 334 ). In holding the fine in United States v. Bajakajian to be violative of the Eighth Amendment (U.S. Const. amend. VIII), the Court held that the fine was “grossly disproportionate to the gravity of the defendant’s offense” (p. 334). In determining proportionality, the Court considered the following factors: a comparison of the fine amount to the proven offense, the particular facts of the case, the character of the defendant, and the harm caused by the offense.
• Cruel and Unusual Punishment: This provision of the Eighth amendment (U.S. Const. amend. VIII) does not generally relate to criminal law issues. Cases involving this provision are typically civil cases filed by inmates in jails or prisons regarding living conditions such as overcrowding, food or limited activities.

5.2.4.1.6 Fourteenth Amendment

Due Process Clause (state)

Defined:

Constitutional law. The constitutional provision that prohibits the government from unfairly or arbitrarily depriving a person of life, liberty, or property. There are two Due Process Clauses in the U.S. Constitution, one in the 5th Amendment applying to the federal government, and one in the 14th Amendment applying to the states (although the 5th Amendment’s Due Process Clause also applies to the states under the incorporation doctrine). (Thomson/West, 2000, pp. 216-217)

For a list of U.S. Supreme Court cases relating to Due Process, see Due Process Supreme Court Cases.

In addition to the specific rights set out in the First, Fourth, Fifth, Sixth and Eighth amendments, the Due Process Clause of the Fourteenth Amendment has been interpreted by the courts to mandate that all processes involved in a criminal investigation or trial be conducted in such a way so as to provide a criminal defendant with a “safety net” of fundamental fairness (U.S. Const. amend. XIV).

Specific examples of this fundamental fairness doctrine can be found in cases related to 1) confessions and 2) identification practices. With regard to confessions, the U.S. Supreme Court has consistently held for over 100 years that to be admissible, all statements and/or confessions given by a defendant must be “free and voluntary” (Bram v. United States, 1897). With regard to identification practices, courts have held that the Due Process Clause dictates that an accused should be afforded protections against processes that are “so necessarily suggestive and conductive to irreparable mistaken identification,” (Stovall v. Denno, 1967, p. 293). Said another way, all identification practices relating to criminal defendants must be both reliable and minimally suggestive; see Neil v. Biggers (1972). As noted in the Neil v. Biggers case, the test to be applied to identification procedures is: As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (p. 199-200)

For a discussion regarding how to conduct identification procedures that are reliable and not unduly suggestive, see Eyewitness Identification Procedures: Legal and Practical Aspects.

Equal Protection Clause

Defined: “Constitutional Law. The 14th Amendment provision requiring the states to give similarly situated persons or classes similar treatment under the law” (Thomson Reuters, 2021, p. 305).

For a discussion of how the Equal Protection Clause provides Constitutional protection in the context of criminal procedure and criminal law settings, see the discussion of Racial Profiling in Section 5.3.11.5.

For a list of U.S. Supreme Court cases relating to Equal Protection, see Equal Protection Supreme Court Cases.

5.3 Criminal Law Issues in the U.S. Criminal Justice System

5.3.1 Definition/Purpose of Criminal Law

5.3.1.1 Criminal Law

“The body of law defining offenses against the community at large, regulating how suspects are investigated, charged and tried, and establishing punishments for convicted offenders” (West, 2001, p.170).

5.3.1.2 Purpose of Criminal Law

Criminal justice researchers and professionals sometimes offer differing explanations for the specific purpose, or purposes, for enacting and enforcing criminal law. The generally accepted purposes behind criminal law would be to define criminal offenses, set boundaries for societal behavior, govern the orderly relationship between government and members of society, prevent harm, protect property, and maintain public order. For a statutory explanation of the general purposes behind criminal law, see N.Y. Penal Law § 1.05.

5.3.2 Fundamental Principles of Criminal Law

Two of the most fundamental aspects of criminal law are the Rule of Law and the Principle of Legality. These terms are defined as:

5.3.2.1 Rule of Law

Defined: 1. A substantive legal principle. 2. The supremacy of regular as opposed to arbitrary power; the absence of any arbitrary power; on the part of government. 3. The doctrine that every person is subject to the ordinary law within the jurisdiction; the equal subordination of all citizens and classes to the ordinary law of the land. 4. The doctrine that general constitutional principles are the result of judicial decisions determining the rights of private individuals in the courts. 5. Loosely, a legal ruling; a ruling on a point of law. (Thomson Reuters, 2021, p. 699)

5.3.2.2 Principle of Legality

Defined: “1. Strict adherence to law, prescription, or doctrine; the quality of being legal. 2. The principle that a person may not be prosecuted under a criminal law that has not been previously published–Also termed (in sense 2) principle of legality” (Thomson/West, 2000, p. 410).

5.3.3 Historical Origins and Evolutionary Development of Criminal Law in the United States

To fully understand the complex role criminal law plays in today’s U.S. Criminal Justice System requires taking a “virtual journey” to the historical origins of U.S. criminal law—traveling back in time over 4,400 years and crossing a distance of over 6,000 miles! It may seem hard to imagine, but modern American criminal law began in the ancient civilizations of Elba (modern-day Syria), Sumeria (also known as Sumer, modern-day Iraq), and Mesopotamia around 2,000-2,400 B.C.E. How is that possible, you ask? As civilizations expanded, collapsed, rose, and fell, the various criminal codes evolved–slowly at times–almost overnight sometimes. As is also true today, criminal codes were constantly being revised to meet the existing societal needs and cultural values of the societies and people affected. Here is the abbreviated version of “The Story of Criminal Law in the United States.” (NOTE: Dates are approximate with overlap and gaps at times.)

• Codes of Ebla (2400 B.C.E.): This codification of criminal offenses and procedures dates to about 2400 B.C.E. to what is today Syria — approximately 600 years before Hammurabi put together the more famous code (Sohma, 2017). See discussion below.
• Sumeria (2100-2000 B.C.E.): The Code of Ur-Nammu (named after the king of Sumeria) is generally accepted as the oldest continuously surviving codification of specific criminal offenses and proceedings. It addressed specific crimes such as murder, rape, robbery, kidnapping, adultery, assault, perjury, criminal mischief, and trespass (Mingren, 2021).
• Babylon (2000-1600 B.C.E.): More famous than some of the preceding criminal law codifications is the Code of Hammurabi (named after the Sumerian king credited with its creation). This later codification built upon the earlier codes and contained 282 specific criminal offenses and several procedural requirements (USHistory.org, n.d.). This codification was one of the earliest to contain rights and responsibilities specifically relating to women. “The U.S. Supreme Court building features Hammurabi on the marble carvings of historic lawgivers that [line] the south wall of the courtroom” (History.com, 2020, para. 15).
• Greece (650-550 B.C.E.): Two of the more famous of the historical law-givers were Solon (c. 638 – 558 B.C.E.) and Draco (around 600 B.C.E.). Around 620 B.C.E., Draco committed an Athenian code of laws to paper for the first time. His code included many strict penalties and death sentences, often for what seemed to be minor offenses. Thus, the word ”draconian,” meaning harsh or cruel, is derived from his name (Loizides, 2015). Both of these historical figures are part of the friezes found in the U.S. Supreme Court (Office of the Curator, 2003).
• Rome (450 BCE-476 A.D.): It is interesting to note that even after the fall of the Roman Empire in 476 A.D., the basic principles found in the Roman codification of criminal offenses and procedures in the Law of the Twelve Tablets “survived” and became the “building blocks” for many of the later code revisions adopted by the various Germanic tribes and peoples who conquered Rome and later by the Anglo-Saxons in Britain (Cartwright, 2016; Zeidan, n.d.).
• Western Europe/Germanic Tribes (500-900 A.D.): “For all of the Germanic peoples, law… was basically not something laid down by a central authority, such as the king, but rather the custom of a particular nation (tribe)” (Stein & Glendon, 2013, para. 3). Tribalism eventually collapsed and was replaced by feudalism (governance by kings). When feudalism declined (12^th-15^th century), the creation and enforcement of criminal law to governments.
• Britain (1066-1700s): In 1066, William the Conqueror invaded and ultimately conquered the lands known as England. At that time, British criminal law was a mixed collection of laws from various historical sources. William is credited with creating a series of local court systems in which judges made decisions that were then shared with other judges/courts who would follow the previous holdings in their decision-making process. This system of precedents, known as common law (see §5.3.9.1), formed the backbone of the British judicial system and later became the legal system in the American Colonies and early United States (Stoebuck, 1968).
• American Colonies (1700s): The common law system, as developed and refined in Britain, remained the basic criminal law system in the American Colonies, although each colony often “tailored” specific provisions of British common law to meet the needs of its society and culture (Stoebuck, 1968).
• Early United States (late 1700s -1900): The British common law system of criminal law was retained by the individual states for some time after the United States was created. However, Louisiana, due to its historical and cultural roots in France, was the only exception as it adopted the French Napoleonic Code until 1805 when it changed to common law (Thomson Reuters, 2022). Further, common law was never adopted at the Federal level in the United States. Specific statutes enacted by Congress create all Federal substantive and procedural laws (Gray, 1943).
• Modern United States (1900-2000s): Eventually, states abolished common law and followed the practice of codifying all criminal law and criminal procedures (e.g., Kentucky, see Ky. Rev. Stat. § 500.020, 1975).
• Today, all 50 states have adopted some form of statutory criminal law. However, in some instances, the criminal code of a state does not define a term, and the state courts will draw upon the common law definition. In the 1960s, most states began to adopt some, if not all, of the provisions of the Model Penal Code.
• Influence of Native Americans: The influence of Native American culture on U.S. Constitutional Law (discussed in Section 5.2.1) was much greater than the influences on the evolution of criminal law in the United States. This difference was due mainly to the fact that criminal offenses and processes under English common law focused more on adversarial proceedings and governmental involvement rather than on conflict/dispute resolution between private parties (Armstrong et al., 1996).

5.3.4 Components of Criminal Law

Criminal law consists of two components: substantive law and procedural law (“Criminal law”: Thomson/West, 2000, p. 170). The definitions of these components and some examples can be found below:

5.3.4.1 Substantive law

Defined: “A crime that is complete in itself and is not dependent on another crime for one of its elements–Also termed substantive crime” (Thomson/West, 2000, pp. 487-488).

Examples: For Kentucky, the specific statutory criminal offenses (murder, robbery, burglary, rape, arson, etc.) are set out in the Kentucky Penal Code (Ky. Rev. Stat. § 50). For Washington, the specific statutory criminal offenses are set out in the Washington Criminal Code (Wash. Rev. Code § 9A). The Federal statutory criminal offenses are set out in the U.S. Code for Crimes and Criminal Procedure (18 U.S.C. §§ 1-6005).

5.3.4.2 Procedural law (Criminal Procedure)

Defined: “The rules governing the mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished. It includes the protection of accused persons’ constitutional rights” (Thomson/West, 2000, p. 171).

Example: The following link to the Federal Rules of Criminal Procedure (National Court Rules Committee, 2024) prescribes the specific protocols and processes governing all criminal trials held in federal courts. For example, the specific processes governing obtaining and executing search and arrest warrants, criminal complaints, grand jury proceedings, indictments, initial appearances, arraignments, bail hearings, preliminary hearings, and sentencing are standardized for all federal courts and set out, with specificity, in these rules. Along those same lines, each state has adopted its own version of the rules of criminal procedure applicable to that jurisdiction. Finally, for an excellent discussion of the investigative and prosecutorial aspects of procedural criminal law involving Native Americans and offenses committed on Tribal lands, see “American Indians, Crime and the Law.”

5.3.5 Classification of Crime

Traditionally, four classifications have been used to divide substantive criminal law into broad categories. These four classifications are 1) crimes against persons v. crimes against property; 2) mala in se v. mala prohibitum offenses; 3) felonies v. misdemeanors v. infractions; and 4) federal v. state offenses. See Table 5.3.

Table 5.3

Traditional Classifications of Criminal Law (With Examples)

Classification of Crimes	Defined	Examples
Crimes Against Persons v. Crimes Against Property	“Crimes Against Persons: A category of criminal offenses in which the perpetrator uses or threatens to use force. Examples include murder, rape, aggravated assault, and robbery” (Thomson/West, 2000, p. 164). “Crimes Against Property: A category of criminal offenses in which the perpetrator seeks to derive an unlawful benefit from—or do damage to—another’s property without the use of force. Examples include burglary, theft, and arson (even though arson may result in injury or death)” (Thomson/West, 2000, p. 164).	Murder, Rape, Robbery Burglary, Theft, Vandalism
Mala in Se v. Mala Prohibitum	“Mala in Se: [Latin “evil in itself”] A crime or an act that is inherently immoral, such as murder, arson, or rape” (Thomson/West, 2000, p. 427). “Mala Prohibitum: [Latin “prohibited evil”] An act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral. Misdemeanors such as jaywalking and running a stoplight are male prohibita, as are many regulatory violations” (Thomson/West, 2000, p.427).	Murder, Rape Traffic Offenses
Felony v. Misdemeanor v. Infraction	“Felony: A serious crime usually punishable by imprisonment for more than one year or by death. Examples include murder, rape, arson and burglary.At common law, a felon was an offense for which conviction involved the forfeiture of the defendant’s lands, or goods, or both, to the Crown. Treason was traditionally included in the term felony” (Thomson/West, 2000, p. 269). “Misdemeanor: A crime that is less serious than a felony and usually punishable by fine, penalty, forfeiture, or confinement (usually for a brief time) in a place other than prison (such as a county jail)” (Thomson/West, 2000, p. 443). “Infraction: A violation, usually of a rule or local ordinance and usually not punishable by incarceration. Infraction” (Thomson/West, 2000, p. 343).	Murder, Rape Disorderly Conduct Littering
Federal v. State v. County/City Ordinance	Federal: Criminal offenses as enacted by Congress and signed into law by the President. State: Criminal offenses as enacted by a state legislative body and signed into law by the state’s governor. County/City Ordinance: An ordinance, as that term is typically used, refers to a local law of a municipal corporation duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct, relating to the corporate affairs of the municipality. “Ordinances may be used purely for administrative purposes, such as establishing an office or setting salaries. An ordinance can either regulate conduct or, for example, when establishing a crime, prohibit described conduct or actions altogether” (Municipal Research and Services Center of Washington, 2016).	Treason Burglary Illegal Parking

Beyond the traditional classifications set out in Table 5.3, other broad classifications of criminal offenses exist to describe various criminal activities. See Table 5.4 below:

Table 5.4

Descriptive Classification of Crimes (With Examples)

Descriptive Classification of Crimes	Defined	Examples
Corporate criminality	“A crime committed either by a corporate body or by its representatives acting on its behalf. Examples include price-fixing and consumer fraud” (Thomson/West, 2000, p. 156).	See definition
Cybertheft (crime)	“The act of using an online computer service, such as one on the Internet, to steal someone else’s property or to interfere with someone else’s use and enjoyment of property. Examples of cybertheft are hacking into a bank’s computer records to wrongfully credit one account and debit another, and interfering with a copyright by wrongfully sending protected material over the Internet” (Thomson/West, 2000, p. 178).	See definition
International Crime	“A crime against international law; occurring when three conditions are satisfied: (1) the criminal norm must derive either from a treaty concluded under international law or from customary international law; and must have direct binding force on municipal law; (2) the provision must be mad for the prosecution of acts penalized by international law in accordance with the principle of universal jurisdiction, so that the international character of the crime might show in the mode of prosecution itself (e.g. before the International Criminal Court), and (3) a treaty establishing criminal liability for the act must bind the great majority of countries” (Thomson/West, 2000, p. 357).	Human Trafficking
Organized Crime	“1.Widespread criminal activities that are coordinated and controlled through a central syndicate. See Racketeering. 2. Persons involved in these criminal activities; a syndicate of criminals who rely on their on unlawful activities for income” (Thomson/West, 2000, p. 497).	Gambling, Prostitution
Transnational Crime	“This is a criminal offense that is done across borders that violates security and order. Thus, organized crime is a form of transnational crime” (Chokprajakchat, n.d).	Organized Crime Human Trafficking
War Crime	“Conduct that violates international laws governing war. Examples of war crimes are the killing of hostages, abuse of civilians in occupied territories, abuse of prisoners of war, and devastation that is not justified by military necessity” (Thomson/West, 2000, p. 705).	See definition
White Collar Crime	“A nonviolent crime usually involving cheating or dishonesty in commercial matters. Examples include fraud, embezzlement, bribery and insider trading” (Thomson/West, 2000, p. 712).	See definition

5.3.6 Elements of Crime

Defined:

The constituent parts of a crime—usually consisting of the actus reus, mens rea , and causation—that the prosecution must prove to sustain a conviction. The term is more broadly defined by the Model Penal Code in § 1.13(9) to refer to each component of the actus reus, causation, the mens rea, and grading factors, and the negative of any defense. (Thomson/West, 2000, p. 222)

5.3.6.1 Act/Omission (Model Penal Code 2.01)

Actus Reus Defined:

The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act <the actus reus for theft is the taking or unlawful control over the property without the owner’s consent>. (Thomson/West, 2000, p. 12)

5.3.6.2 Mental State

Mens Rea Defined:

The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness <the mens rea for theft is the intent to deprive the rightful owner of the property>. Mens rea is the second of two essential elements of every crime at common law, the other being actus reus. Also termed mental element; criminal intent; guilty mind. Plural, mentes reae. (Thomson/West, 2000, pp. 435-436)

5.3.6.3 Concurrence

Concurrency is not so much a specific, separate, element of a crime as it is a requirement that the act and the mental element coincide.

5.3.6.4 Causation

Defined: “1. The causing or producing of an effect. 2. See Causality” (Thomson/West, 2000, p. 86).

5.3.6.5 Harm

Defined: “Injury, loss, or detriment” (Thomson/West, 2000, p. 302).

5.3.6.6 Attendant Circumstances

Attendant Circumstances are additional, optional elements of a crime that, if present and proven beyond a reasonable doubt, will increase the sentence and/or re-characterize the offense. Examples of Attendant Circumstances are set out in Table 5.5.

Table 5.5

Attendant Circumstances

Circumstance	Defined/Effect	Statutory Examples
Age of Victim	The age of the victim can change the category of the offense, the degree of the offense, or the classification of the offense (felony/misdemeanor).	Kentucky: Rape in the first degree (Ky. Rev. Stat. § 510.040, 1975). Victim Is less than twelve (12) years old. Effect: Increases offense to a Class A Felony.
Body Armor	The presence of certain types of equipment (body armor) can change the offense’s category, the offense’s degree, or the offense’s classification (felony/misdemeanor).	Virginia: Wearing of Body Armor While Committing a Crime (Va. Code Ann. § 18.2-287.2, 1990). Wearing body armor while committing a crime. Effect: Increases offense to a Class 4 Felony
harm/Injury Inflicted	The harm, or degree of injury inflicted, can change the category of the offense, the degree of the offense or the classification of the offense (felony/misdemeanor).	Washington:Assault in the First Degree (Wash. Rev. Code § 9A.36.011(1)(c), 1986). Inflicts “great bodily harm” Effect: Increases offense to Assault in the First Degree
Motivation/Intent	The intent/motivation of the offender can change the category of the offense, the degree of the offense or the classification of the offense (felony/misdemeanor).	Washington: Special Allegation—Sexual Motivation (Wash. Rev. Code § 9.94A.835, 1990). Commits offense with sexual motivation. Effect: 1) Increases offense to a higher degree, and 2) Requires the defendant to register as a Sex Offender.
Quantity	The quantity or nature of some aspect of the offense can change the offense’s category, degree, or classification (felony/misdemeanor).	Kentucky: Trafficking in stolen identities (Ky. Rev. Stat. § 514.170, 2002). Defendant is in possession of five or more separate identities Effect: Creates a prima facie case that the identities are possessed for the purpose of trafficking.
Relationship Between Victim and Offender	The relationship between the victim and the offender can change the offense’s category, degree, or classification (felony/misdemeanor).	Washington: Sexual Misconduct With a Minor (Wash. Rev. Code § 9A.44.093, 1988). Defendant is in a significant relationship with the victim and abuses a supervisory position within that relationship. Effect: Increases the offense to Sexual Misconduct in the First Degree.
Status of Offender	The offender’s status can change the offense’s category, the offense’s degree, or the offense or the classification of the offense (felony/misdemeanor).	Kentucky: Stalking in the first degree (Ky. Rev. Stat. § 508.140(b), 2002) Offender status: 1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or 2. A criminal complaint is currently pending with a court, law enforcement agency, or prosecutor by the same victim or victims and the defendant has been served with a summons or warrant or has been given actual notice; or 3. The defendant has been convicted of or pled guilty within the previous five (5) years to a felony or to a Class A misdemeanor against the same victim or victims. Effect: Increases the offense from a misdemeanor to a felony.
Status of Victim	The status of the victim can change the offense’s category, the offense’s degree, or the offense’s classification (felony/misdemeanor).	Washington:Assault in the Third Degree (Wash. Rev. Code § 9A.36.031, 1986). Defendant assaults a school bus driver. Effect: Potentially increases the offense to a felony.
Value/Amount	The value of some aspect of the crime can change the offense’s category, the offense’s degree, or the offense or the classification of the offense (felony/misdemeanor).	Washington: Theft in the First Degree (Wash. Rev. Code § 9A.56.030, 1975). Value of the item taken exceeds $5,000. Effect.: Increases offense to Theft in the First Degree
Weapon	The presence, use, or threatened use of a weapon can change the offense’s category, degree, or the offense or the classification of the offense (felony/misdemeanor).	Kentucky: Burglary in the First Degree (Ky. Rev. Stat. § 511.020(a), 2022) Defendant is armed with a deadly weapon. Effect: Increases the offense to Burglary in the 1st Degree.

5.3.7 Elements of Crime: Formula

The various elements of a crime discussed in §5.3.6 can be better understood when viewed as a “formula” bringing all of the elements together:

Example:

New York’s Murder in the First Degree law (N.Y. Penal Law 125.27) reads: “With intent to cause the death of another person, he causes the death of such person or of a third person.” Then there is a listing of 13 different attendant circumstances/situations that if proven, “elevate” murder to Murder in the First Degree.

5.3.8 Burden of Proof

The concept of allocating responsibility for producing evidence, and then using that evidence to convince the trier of fact to render a decision that they should prevail on the issues before the court, is known as the Burden of Proof. In civil cases the plaintiff must prove its case by a preponderance of the evidence. In criminal cases the prosecution (government) must prove its case beyond a reasonable doubt. Burden of proof is defined as follows:

Burden of Proof Defined:

“1. A party’s duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production—Also termed onus probandi. 2. Loosely, Burden of Persuasion” (Thomson/West, 2000, p. 79).

5.3.8.1 Civil Law

“Decisions are based upon a preponderance of evidence. The party suing (plaintiff) must prove their case by presenting evidence more persuasive to the trier of fact (judge or jury) than the opposing evidence” (Washington State Administrative Office of the Courts, n.d., para. 3).

“In a civil case, the plaintiff must convince the jury by a ‘preponderance of the evidence’ (i.e., that it is more likely than not) that the defendant is responsible for the harm the plaintiff has suffered” (Administrative Office of the U.S. Courts, n.d.-a, para. 6).

5.3.8.2 Criminal Law

The U.S. Court of Appeals for the Ninth Circuit has adopted the following as its definition of Beyond a Reasonable Doubt in criminal cases:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. (Ninth Circuit Jury Instructions Committee, 2017, Rule 6.5)

5.3.9 Parties to Crimes

While a single individual is often the only person involved with the commission of most crimes, many crimes are committed by more than one person. Researchers are finding that the trend, especially concerning corporate and white-collar crime, is for multiple criminal defendants to be involved in crimes (Marcus, 2002). Accordingly, as criminal law evolved, it became necessary to more accurately identify, name, and hold accountable all parties involved or assisting with committing criminal offenses. Below is a discussion of the historical development of the principles of criminal law as they apply to multiple-defendant criminal activities.

5.3.9.1 Common law

Common Law defined:

1. The body of law derived from judicial decisions rather than from statutes or constitutions; caselaw. 2. The body of law based on the English legal system; as distinct from a civil-law system <all states except Louisiana have the common law as their legal system> 3. General law common to a country as a whole as opposed to special law that has only local application <the issue is whether the common law trumps our jurisdiction’s local rules>. 4. The body of law deriving from law courts as opposed to those setting in equity <a defense founded in common law>. 5. The body of law to which no constitution or statute applies <the common law used by trial lawyers to settle disputes>. (Thomson/West, 2000, p. 117)

Under common law, multiple offenders were defined/classified as follows:

• Principal in the first degree
  • Defined: “The perpetrator of a crime–Also termed first-degree principal” (Thomson/West, 2000, p. 537).
• Principal in the second degree
  • Defined: “One who helped the perpetrator at the time of the crime–Also termed accessory at the fact; second-degree principal” (Thomson/West, 2000, p. 537).
• Accessory before the fact
  • Defined: “An accessory who assists or encourages another to commit a crime but who is not present when the offense is actually committed. Most jurisdictions have abolished this category of accessory and instead treat such an offender as an accomplice” (Thomson/West, 2000, p. 7).
• Accessory after the fact
  • Defined: “An accessory who knows that a crime has been committed and who helps the offender try to escape arrest or punishment. Most penal statutes establish the following four requirements: (1) someone else must have committed a felony and it must have been completed before the accessory’s act; (2) the accessory must not be guilty as a principal; (3) the accessory must personally help the principal try to avoid the consequences of the felony, and (4) the accessory’s assistance must be rendered with guilty knowledge” (Thomson/West, 2000, p. 6).

5.3.9.2 Federal Statutes

As federal statutory criminal law evolved, the characterization of multiple offenders evolved as follows:

• Principals, 18 U.S.C. § 2 (1948)
  •  Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
  •  Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
• Accessory After the Fact, 18 U.S.C. § 3 (1948)
  • “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.”
• Misprison of a Felony, 18 U.S.C. § 4 (1948)
  • “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”

5.3.9.3 State Laws

Complicity Statutes

Defined:

Association or participation in a criminal act; the act or state of being an accomplice. Under the Model Penal Code, a person can be an accomplice as a result of either that person’s own conduct or the conduct of another (such as an innocent agent) for which that person is legally accountable. Model Penal Code §2.06. 2. (Thomson/West, 2000, p. 122)

Initially, states defined multiple offenders in various ways, with some states relying on Common Law while others drafted specific statutes. However, with the eventual development of the Model Penal Code in the 1960s, most states enacted some variation of the language in that code (see Figure 8, the Washington Complicity statute).

Liability for conduct of another-Complicity (Wash. Rev. Code § 9A.08.020, 1975)

1. A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable.
2. A person is legally accountable for the conduct of another person when:
   1. Acting with the kind of culpability that is sufficient for the commission of the crime, he or she causes an innocent or irresponsible person to engage in such conduct; or
   2. He or she is made accountable for the conduct of such other person by this title or by the law defining the crime; or
   3. He or she is an accomplice of such other person in the commission of the crime.
3. A person is an accomplice of another person in the commission of a crime if:
   1. With knowledge that it will promote or facilitate the commission of the crime, he/she:
      1. Solicits, commands, encourages, or requests such other person to commit it; or
      2. Aids or agrees to aid such other person in planning or committing it; or
   2. His or her conduct is expressly declared by law to establish his or her complicity.
4. A person who is legally incapable of committing a particular crime himself or herself may be guilty thereof if it is committed by the conduct of another person for which he or she is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his or her incapacity.
   1. Unless otherwise provided by this title or by the law defining the crime, a person is not an accomplice in a crime committed by another person if:
   2. He or she is a victim of that crime; or
5. He or she terminates his or her complicity prior to the commission of the crime, and either gives timely warning to the law enforcement authorities or otherwise makes a good faith effort to prevent the commission of the crime.
6. A person legally accountable for the conduct of another person may be convicted on proof of the commission of the crime and of his or her complicity therein, though the person claimed to have committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime or has an immunity to prosecution or conviction or has been acquitted.

Washington Complicity Statute, RCW 9A.08.020

5.3.10 Miscellaneous Criminal Law Issues

5.3.10.1 Strict Liability Offenses

Defined: “Strict criminal liability refers to liability for the commission of an offense without regard to whether the defendant was culpable or had any intention of committing the criminal act” (Saltzman, 1978, abstract).

Example: Kentucky’s Absolute Liability (Ky. Rev. Stat. § 501.050, 1975)

“A person may be guilty of an offense without having one (1) of the culpable mental states

defined in KRS 501.020 only when:

1. The offense is a violation or a misdemeanor as defined in KRS 500.080 and no particular culpable mental state is included within the definition of the offense; or
2. The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described.”

5.3.10.2 Lesser Included Offenses (LIO)

Defined: “An offense that, although not the primary crime charged, is supported by the same facts or evidence. Its conviction carries a less severe punishment than the main offense” (Justia, n.d., para. 1).

Examples of LIO offenses: 1) the crime of Trespass would be an LIO of Burglary; 2) the crime of theft would be an LIO of Robbery.

Statute/Example: Washington, Conviction of Lesser Crime (Wash. Rev. Code § 10.61.010, 1909)

“Upon the trial of an indictment or information, the defendant may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime. Whenever the jury shall find a verdict of guilty against a person so charged, they shall in their verdict specify the degree or attempt of which the accused is guilty.”

5.3.10.3 Felony-Murder Rule

“Criminal law. The doctrine holding that any death resulting from the commission or attempted commission of a felony is murder. Most states restrict this rule to inherently dangerous felonies such as rape, arson, robbery, and burglary” (Thomson/West, 2000, p. 270).

Statute/Example: Washington, the felony-murder rules can be found at Murder in the First Degree (Wash. Rev. Code § 9A.32.030, 1975) and Murder in the Second Degree (Wash. Rev. Code § 9A.32.050, 1975).

5.3.10.4 Jurisdiction Over Criminal Offenses

Jurisdiction defined:

• A government’s general power to exercise authority over all persons and things within its territory <New Jersey’s jurisdiction> 2. A court’s power to decide a case or issue a decree <the constitutional grant of federal-question jurisdiction>. 3. A geographic area within which political or judicial authority may be exercised <the accused fled to another jurisdiction>. 4. A political or judicial subdivision with such an area <other jurisdictions have decided the issue differently>. (Thomson/West, 2000, p. 377)

Examples:

• Federal Jurisdiction: Jurisdiction over federal criminal offenses (assault of a federal agent, threatening the President, espionage, treason) lies with the federal court system, and the trial for these offenses would occur in the federal court where the offense was committed. Jurisdiction over military criminal offenses is a “subset” of federal jurisdiction (See Military Law, Table 5.1, in §5.1.1 and the link found in Call-Out Box #1).
• State Jurisdiction: Jurisdiction over state criminal offenses (burglary, criminal mischief, arson) lies with the state court system, and the trial for these offenses would take place in the state court having authority over the type of offense (felony or misdemeanor) located where the offense was committed.
• Concurrent Jurisdiction: Some criminal offenses can be federal and state crimes (bank robbery, certain drug offenses, and kidnapping crimes) and can be tried in either federal or state courts. Double Jeopardy is not violated by these prosecutions in that Double Jeopardy only prevents a defendant from being tried twice for the same offense by the same jurisdiction–and federal jurisdiction is separate and distinct from state jurisdiction.
• Native American/Tribal Jurisdiction: Jurisdiction over criminal offenses involving Native Americans and offenses committed on tribal lands is complicated. The outcome depends on who committed the crime, where the crime was committed, whether concurrent jurisdiction was involved, and a host of other factors. For an in-depth discussion of jurisdiction over criminal offenses committed by Native Americans and/or criminal offenses committed on tribal lands (Kickingbird, 2023).

5.3.11 Overview of Criminal Offenses

5.3.11.1 Inchoate Offenses

Inchoate Offense Defined: “A step toward the commission of another crime, the step in itself being serious enough to merit punishment. The three inchoate offenses are attempt, conspiracy, and solicitation—Also termed anticipatory offense; inchoate crime; preliminary crime” (Thomson/West, 2000, p. 482). See Table 5.6.

Table 5.6

Inchoate Offenses: Attempt, Solicitation, Conspiracy

Criminal Offense	Defined	Revised Code of Washington (RCW)
Attempt	Defined: An over act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offense distinct from the attempted crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed. Model Penal Code §5.01. (Thomson/West, 2000, p. 51)	Washington Statute: Criminal Attempt (Wash. Rev. Code § 9A.28.020, 1975) (1) A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime. (2) If the conduct in which a person engages otherwise constitutes an attempt to commit a crime, it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission. (3) An attempt to commit a crime is a: (a) Class A felony when the crime attempted is murder in the first degree, murder in the second degree, arson in the first degree, child molestation in the first degree, indecent liberties by forcible compulsion, rape in the first degree, rape in the second degree, rape of a child in the first degree, or rape of a child in the second degree; (b) Class B felony when the crime attempted is a class A felony other than an offense listed in (a) of this subsection; (c) Class C felony when the crime attempted is a class B felony; (d) Gross misdemeanor when the crime attempted is a class C felony; (e) Misdemeanor when the crime attempted is a gross misdemeanor or misdemeanor.
Solicitation	Defined: 1. The act or an instance of requesting or seeking to obtain something; a request or petition <a solicitation for volunteers to handle at least one pro bono case a year> 2. The offense of urging, advising, commanding, or otherwise inciting another to commit a crime <convicted of solicitation of murder> Solicitation is an inchoate offense distinct from the solicited crime. Under the Model Penal Code, a defendant is guilty of solicitation even if the command or urging was not actually communicated to the solicited person, so long as it was designed to be communicated. Model Penal Code §5.02(2). 3. An offer to pay or accept money in exchange for sex <the prostitute was charged with solicitation>. (Thomson/West, 2000, pp. 632-633)	Washington Statute: Criminal Solicitation (Wash. Rev. Code § 9A.28.030, 1975) (1) A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed. (2) Criminal solicitation shall be punished in the same manner as criminal attempt under RCW 9A.28.020.
Conspiracy	Defined: An agreement by two or more persons to commit an unlawful act, a combination for an unlawful purpose, Conspiracy is a separate offense from the crime that is the object of the conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. See Model Penal Code §5.03(7). (Thomson/West, 2000, p. 133).	Washington Statute: Criminal conspiracy (Wash. Rev. Code § 9A.28.040, 1975) (1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement. (2) It shall not be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired: (a) Has not been prosecuted or convicted; or (b) Has been convicted of a different offense; or (c) Is not amenable to justice; or (d) Has been acquitted; or (e) Lacked the capacity to commit an offense; or (f) Is a law enforcement officer or other government agent who did not intend that a crime be committed. (3) Criminal conspiracy is a: (a) Class A felony when an object of the conspiratorial agreement is murder in the first degree; (b) Class B felony when an object of the conspiratorial agreement is a class A felony other than murder in the first degree; (c) Class C felony when an object of the conspiratorial agreement is a class B felony; (d) Gross misdemeanor when an object of the conspiratorial agreement is a class C felony; (e) Misdemeanor when an object of the conspiratorial agreement is a gross misdemeanor or misdemeanor.

5.3.11.2 Special Defenses to Inchoate Offenses

Inchoate Offenses are very unique in that, unlike substantive crimes such as murder and rape, under very narrowly prescribed statutes, defendants can actually “undo” or terminate their criminal liability/responsibility for committing the offense. See Table 5.7.

Table 5.7

Defenses to Inchoate Offenses: Abandonment, Withdrawal, and Renunciation

Defense	Defined
Abandonment	Defined: See Renunciation. (Thomson/West, 2000, p.1)
Withdrawal	Defined: 1.The act of taking back or away; removal <withdrawal of consent>. 2. The act of retreating from a place, position, or situation, especially the act of canceling one’s representation of a client <withdrawal from a standoff with the police>. 3. See Renunciation <withdrawal from the conspiracy to commit arson>. (Thomson/West, 2000, p. 714
Renunciation	Example Statutes (Kentucky): Criminal attempt — Defense of renunciation (Ky. Rev. Stat. § 506.020, 1975) (1) In any prosecution for criminal attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant abandoned his effort to commit the crime and, if mere abandonment was insufficient to avoid the commission of the crime, took the necessary affirmative steps to prevent its commission. (2) A renunciation is not “voluntary and complete” within the meaning of this section if it is motivated in whole or in part by: (a) A belief that circumstances exist which pose a particular threat of apprehension or detection of the accused or another participant in the criminal enterprise or which render more difficult the accomplishment of the criminal purpose; or (b) A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar object. Criminal Solicitation or Conspiracy — Defense of Renunciation (Ky. Rev. Stat. § 506.060, 1975) (1) In any prosecution for criminal solicitation or criminal conspiracy in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant prevented the commission of the crime. (2) A renunciation is not “voluntary and complete” within the meaning of this section when it is motivated in whole or in part by: (a) A belief that circumstances exist which pose a particular threat of apprehension or detection of the accused or another participant in the criminal enterprise or which render more difficult the accomplishment of the criminal purpose; or (b) A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar object.

5.3.11.3 Categories of Most Common Substantive Criminal Offenses

Table 5.8 identifies, by offense name and section number of the Kentucky and Washington criminal codes, specific substantive criminal offenses by category.

Table 5.8

Categories of Most Common Substantive Criminal Offenses

Categories of Substantive Criminal Offenses	Examples of Offenses in Different States (Washington & Kentucky)
Crimes Against Persons Defined: Crimes Against Persons: A category of criminal offenses in which the perpetrator uses or threatens to use force. Examples include murder, rape, aggravated assault, and robbery (Thomson/West, 2000, p. 164).	Non-Sex Offenses Homicide *Murder: Wash. Rev. Code § 9A.32.030 (1975) *Manslaughter: Wash. Rev. Code § 9A.32.060 (1975) *Homicide by Abuse: Wash. Rev. Code § 9A.32.055 (1987) *Fetal Homicide: Ky. Rev. Stat. § 507A.020 (2004) *Vehicular Homicide: Ky. Rev. Stat. § 507.060 (2023) Other *Assault: Wash. Rev. Code § 9A.36.011 (1986) *Assault (child): Wash. Rev. Code § 9A.36.120 (1992) *Hate (Bias) Crime: Wash. Rev. Code § 9A.36.080 (1984) *Human Trafficking: Wash. Rev. Code § 9A.40.100 (2003) *Kidnapping: Wash. Rev. Code § 9A.40.020 (1975) *Menacing: Ky. Rev. Stat. § 508.050 (1975) *Robbery: Wash. Rev. Code § 9A.56.200 (1975) *Strangulation: Ky. Rev. Stat. § 508.170 (2019) Sex Offenses Indecent Exposure: Wash. Rev. Code § 9A.88.010 (1975) Indecent Liberties: Wash. Rev. Code § 9A.44.100 (2022) Prostitution: Wash. Rev. Code § 9A.88.030 (1975) Rape: Wash. Rev. Code § 9A.44.045 (1982) Rape (child): Wash. Rev. Code § 9A.44.073 (1988) Sexual Molestation: Wash. Rev. Code § 9A.44.083 (1988) Stalking: Wash. Rev. Code § 9A.46.110 (1992) Voyeurism: Wash. Rev. Code § 9A.44.115 (1998)
Crimes Against Property Defined: Crimes Against Property: A category of criminal offenses in which the perpetrator seeks to derive an unlawful benefit from—or do damage to—another’s property without the use of force. Examples include burglary, theft, and arson (even though arson may result in injury or death). (Thomson/West, 2000, p. 164)	Arson: Wash. Rev. Code § 9A.48.020 (1975) Burglary: Wash. Rev. Code § 9A.52.020 (1975) Malicious Mischief: Wash. Rev. Code § 9A.48.070 (1975) Theft: Wash. Rev. Code § 9A.56.030 (1975) Trespass: Wash. Rev. Code § 9A.52.070 (1975) Vehicular Prowling: Wash. Rev. Code § 9A.52.095 (1982)
Crimes Involving the Administration of Justice Defined: When a person is alleged to have interfered with the way law enforcement officers do their job or the way the court system works, he or she could face criminal charges. These are referred to as “crimes against the administration of justice. (James Blumberg Law, n.d., para. 1).	Bribing Witness: Wash. Rev. Code § 9A.72.090 (1975) Disarming LE Officer: Wash. Rev. Code § 9A.76.023 (1998) Escape: Wash. Rev. Code § 9A.76.110 (1975) Harming LE Animal: Wash. Rev. Code § 9A.76.200 (1982) Impersonating an Officer:Ky. Rev. Stat. § 519.055 (1998) Intimidating Judge: Wash. Rev. Code § 9A.72.160 (1985) Intimidating Juror: Wash. Rev. Code § 9A.72.130 (1975) Intimidating Witness: Wash. Rev. Code § 9A.72.110 (1975) Perjury: Wash. Rev. Code § 9A.72.020 (1975) Resisting Arrest: Wash. Rev. Code § 9A.76.040 (1975) Tampering with Evidence: Wash. Rev. Code § 9A.72.150 (1975)
Crimes Involving the Public Peace Defined: Disturbing the peace violations include: (1) fights in public places, (2) malicious intent to disturb the peace through loud and unreasonable noises, and (3) using offensive words inherently likely to draw a violent reaction. (Riverside City Sheriff’s Department & Mt. San Jacinto College, 1975).	Riot: Ky. Rev. Stat. § 525.020 (1975) Terrorism: Ky. Rev. Stat. § 525.045 (2018) Unlawful Discharge Laser: Wash. Rev. Code § 9A.49.020 (1999)
Crimes Involving Morality and Family Defined: There is no standardized or universally accepted definition of these types of crimes for all jurisdictions. Often, these criminal offenses involve situations where members of a family are both the perpetrator and the victim.	Bigamy: Wash. Rev. Code § 9A.64.010 (1975) Child Selling: Wash. Rev. Code § 9A.64.030 (1980) Concealing Birth: Ky. Rev. Stat. § 530.030 (1975) Incest: Wash. Rev. Code § 9A.64.020 (1975) Unlawful Transaction with Minor: Ky. Rev. Stat. § 530.064 (2016)

5.3.11.4 Defenses to, and limitations on, prosecuting criminal offenses

Defense defined:

• A defendant’s stated reason why the prosecutor has no valid case; especially a defendant’s answer, denial or plea <her defense was that she was 25 miles from the building at the time of the robbery>. 2. A defendant’s method and strategy in opposing the prosecution; a doctrine giving rise to such a method or strategy <the lawyer advised her client to adopt a passive defense and to avoid taking the witness stand>. 3. One or more defendants in a trial <the defense rests>. 4. Measures taken by an individual to protect against an attack. (Thomson/West, 2000, pp. 187-188)

Table 5.9 identifies the defenses that could be raised in most jurisdictions.

Table 5.9

Defenses to Criminal Offenses

Defense	Defined	Example
Age of reason	The age at which a person becomes able to distinguish right from wrong and is thus legally capable of committing a crime. The age of reason varies from jurisdiction to jurisdiction, but 7 years is usually the age below which a child is conclusively presumed not to have committed a crime, while 14 years is usually the age below which a rebuttable presumption applies. (Thomson/West, 2000, pp. 24-25)	Washington: Wash. Rev. Code § 9A.04.050 (1975) Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong. Whenever in legal proceedings it becomes necessary to determine the age of a child, he or she may be produced for inspection, to enable the court or jury to determine the age thereby; and the court may also direct his or her examination by one or more physicians, whose opinion shall be competent evidence upon the question of his or her age.
Alibi	Defined:. Fed. R. Crim. P. 12.1. 2. The fact or state of having been elsewhere when an offense was committed. (Thomson/West, 2000, p .28)	Generally, not a statutory defense; however, often recognized through Jury Instructions or Rules of Criminal Procedure, Federal Rules of Criminal Procedure, 12.1 (National Court Rules Committee, 2024)
Entrapment	1. A law-enforcement officer’s or government agent’s inducement of a person to commit a crime, by means of fraud or undue persuasion, in attempt to later bring a criminal prosecution against that person. 2. The affirmative defense of having been so induced. Entrapment, To establish entrapment (in most jurisdictions), the defendant must show that he or she would not have committed the crime but for the fraud or undue persuasion. (Thomson/West, 2000, p. 225)	Statute: Washington, Wash. Rev. Code § 9A.16.070 (1975)
Mistake of fact	The defense asserting that a criminal defendant acted from an innocent misunderstanding of fact rather than from a criminal purpose. (Thomson/West, 2000, p. 445)	Kentucky: Ky. Rev. Stat. § 501.070 (1975) (1) A person’s ignorance or mistake as to a matter of fact or law does not relieve him of criminal liability unless: (a) Such ignorance or mistake negatives the existence of the culpable mental state required for commission of an offense; or (b) The statute under which he is charged or a statute related thereto expressly provides that such ignorance or mistake constitutes a defense or exemption; or (c) Such ignorance or mistake is of a kind that supports a defense of justification as defined in this Penal Code. (2) When ignorance or mistake relieves a person of criminal liability under subsection (1) but he would be guilty of another offense had the situation been as he supposed it was, he may be convicted of that other offense. (3) A person’s mistaken belief that his conduct, as a matter of law, does not constitute an offense does not relieve him of criminal liability, unless such mistaken belief is actually founded upon an official statement of the law, afterward determined to be invalid or erroneous, contained in: (a) A statute or other enactment; or (b) A judicial decision, opinion or judgment; or (c) An administrative order or grant of permission; or (d) An official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
Mistake of law	The defense asserting that a defendant did not understand the criminal consequences of certain conduct. This defense is generally not as effective as a mistake of fact. (Thomson/West, 2000, pp. 445-446)	See mistake of fact.
Insanity	To establish the defense of insanity, it must be shown that: (1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that: (a) He or she was unable to perceive the nature and quality of the act with which he or she is charged; or (b) He or she was unable to tell right from wrong with reference to the particular act charged. (2) The defense of insanity must be established by a preponderance of the evidence.	Washington: Wash. Rev. Code § 9A.12.010 (1975)
Intoxication	No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken into consideration in determining such mental state.	Washington: Wash. Rev. Code § 9A.16.090 (1975)
Statute of limitations	A statute establishing a time limit for prosecuting a crime, based on the date when the offense occurred.(Thomson/West, 2000, p. 644)	The statute of limitations for criminal offenses is set by each jurisdiction and the timeframe varies, depending on the specific criminal offense committed. Washington, Wash. Rev. Code § 9A.04.080 (1975). The range runs from no limitation at all (e.g., murder, homicide by abuse, vehicular homicide) to 20 years (rape in the first degree, rape in the second degree) to 10 years (rape in the third degree, attempted murder), to 10 years (incest). There are some specific offenses with six and five-year limitations while gross misdemeanors have a two-year limit and misdemeanors a one-year limit. Federal, 18 U.S.C. § 3282 (2014). The statute of limitations for most non-capital offenses is five years. (a) “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

Justifications for Committing Criminal Offenses

Justification defined:

• A lawful or sufficient reason for one’s acts or omissions. 2. A showing, in court, of a sufficient reason why a defendant did what the prosecution charges the defendant to answer for. Under the Model Penal Code, the defendant must believe that the action was necessary to avoid a harm or evil and that the harm or evil to be avoided was greater than the harm that would have resulted if the crime had been committed. Model Penal Code §3.02.–See lesser-evils defense under Defense. Also termed justification defense; necessity defense. (Thomson/West, 2000, pp. 390-391)

Table 5.10 identifies the various justifications that could typically be raised in most jurisdictions.

Table 5.10

Justifications for Committing Criminal Offenses

Justification	Example
Consent Defined: Agreement, approval, or permission as to some act or purpose, especially given voluntarily by a competent person. Consent may be a defense to a crime if the victim has the capacity to consent and if the consent negates an element of the crime or thwarts the harm that the law seeks to prevent. See Model Penal Code § 2.11. (Thomson/West, 2000, p. 133)	Kentucky: Ky. Rev. Stat. § 510.020 (2018) (1) Whether or not specifically stated, it is an element of every offense defined in this chapter that the sexual act was committed without consent of the victim. (2) Lack of consent results from: (a) Forcible compulsion; (b) Incapacity to consent; or (c) If the offense charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct. (3) A person is deemed incapable of consent when he or she is: (a) Less than sixteen (16) years old; (b) Sixteen (16) or seventeen (17) years old and the actor is at least ten (10) years older than the victim at the time of the sexual act; (c) An individual unable to communicate consent or lack of consent, or unable to understand the nature of the act or its consequences, due to an intellectual disability or a mental illness; (d) Mentally incapacitated; (e) Physically helpless; or (f) Under the care or custody of a state or local agency pursuant to court order and the actor is employed by or working on behalf of the state or local agency. (4) The provisions of subsection (3)(f) of this section shall not apply to persons who are lawfully married to each other and no court order is in effect prohibiting contact between the parties.
Defense of others Defined: A justification defense available if one harms or threatens another when defending a third person. (Thomson/West, 2000, p. 191)	Kentucky: Ky. Rev. Stat. § 503.070 (2006) (1) The use of physical force by a defendant upon another person is justifiable when: (a) The defendant believes that such force is necessary to protect a third person against the use or imminent use of unlawful physical force by the other person; and (b) Under the circumstances as the defendant believes them to be, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection. (2) The use of deadly physical force by a defendant upon another person is justifiable when: (a) The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055; and (b) Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection. (3) A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Defense of property Defined: A justification defense available if one harms or threatens another when defending one’s property. (Thomson/West, 2000, p. 191)	Kentucky: Ky. Rev. Stat. § 503.080 (2006) (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent: (a) The commission of criminal trespass, robbery, burglary, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055, in a dwelling, building or upon real property in his possession or in the possession of another person for whose protection he acts; or (b) Theft, criminal mischief, or any trespassory taking of tangible, movable property in his possession or in the possession of another person for whose protection he acts. (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that the person against whom such force is used is: (a) Attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or (b) Committing or attempting to commit a burglary, robbery, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055, of such dwelling; or (c) Committing or attempting to commit arson of a dwelling or other building in his possession. (3) A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Duress (also known as Coercion) Defined: 1. Strictly, the physical confinement of a person 2. Broadly, the threat of confinement or detention, or other threat of harm used to compel a person to do something against his or her will or judgment. 3. The use of threatened use of unlawful force—usually that a reasonable person cannot resist—to compel someone to commit an unlawful act. Duress is a recognized defense. Model Penal Code §2.09. (Thomson/West, 2000, pp. 218-219)	Washington: Wash. Rev. Code § 9A.16.060 (1975) (1) In any prosecution for a crime, it is a defense that: (a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and (b) That such apprehension was reasonable upon the part of the actor; and (c) That the actor would not have participated in the crime except for the duress involved. (2) The defense of duress is not available if the crime charged is murder, manslaughter, or homicide by abuse. (3) The defense of duress is not available if the actor intentionally or recklessly places himself or herself in a situation in which it is probable that he or she will be subject to duress. (4) The defense of duress is not established solely by a showing that a married person acted on the command of his or her spouse.
Execution of Public Duty Defined:	Colorado: Colo. Rev. Stat. § 18-1-70 (2016) (1) Unless inconsistent with other provisions of sections 18-1-702 to 18-1-710, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by a provision of law or a judicial decree binding in Colorado. (2) A “provision of law” and a “judicial decree” in subsection (1) of this section mean: (a) Laws defining duties and functions of public servants; (b) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions; (c) Laws governing the execution of legal process; (d) Laws governing the military service and conduct of war; (e) Judgments and orders of court. Kentucky: Ky. Rev. Stat. § 503.040 (1975) (1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree. (2) The justification afforded by subsection (1) applies when: (a) The defendant believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or (b) The defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.
Necessity Defined: 1. A justification defense for a person who acts in an emergency that he or she did not create and who commits a harm that is less severe than the harm that would have occurred but for the person’s actions For example, a mountain climber lost in a blizzard can assert necessity as a defense to theft of food and blankets from another’s cabin. Also termed choice of evils; duress of circumstances lesser-evils defense. 2. A privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another’s property in an effort to protect life or health. (Thomson/West, 2000, pp. 460-461)	Kentucky: Ky. Rev. Stat. § 503.030 (1975) (1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide. (2) When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.
Self-defense Defined: The use of force to protect oneself, one’s family or one’s property from a real or threatened attack. Generally, a person is justified in using a reasonable amount of force in self-defense if he or she believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger. Also termed defense of self. (Thomson/West, 2000, pp. 612-613).	Kentucky: Ky. Rev. Stat. § 503.050 (2006) (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person. (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055. (3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section. (4) A person does not have a duty to retreat prior to the use of deadly physical force.

In addition to the various defenses and justifications that are available to criminal defendants, there are a number of constitutional issues (limitations) that restrict or otherwise bar the enactment, enforcement or prosecution of a criminal offense. These Constitutional Limitations are set out in Table 5.11.

Table 5.11

Constitutional Limitations on Enacting, Enforcing or Prosecuting Criminal Offenses

Constitutional Limitation	Defined
Double Jeopardy	“The fact of being prosecuted twice for substantially the same offense. Double jeopardy is prohibited by the Fifth Amendment” (Thomson/West, 2000, p. 211).
Ex Post Facto	“A statute that criminalizes an action and simultaneously provides for punishment of those who took the action before it had legally become a crime; specifically, a law that impermissibly applies retroactively, especially in a way that negatively affects a person’s rights, as by making into a crime an action that was legal when it was done or increasing the punishment for past conduct. Ex post facto criminal laws are prohibited by the U.S. Constitution, but retrospective civil laws may be allowed” (Thomson Reuters, 2021, pp. 325-326). This limitation can be found in the U.S. Constitution, Article 1, Section 9, Clause 3 (U.S. Const. art. I, § 9).
Overbreadth doctrine	“The doctrine holding that if a statute is so broadly written that it deters free expression, then it can be struck down on its face because of the chilling effect—even if it also prohibits acts that may be legitimately forbidden. The Supreme Court has used this doctrine to invalidate a number of laws, including those that would disallow peaceful picketing or require loyalty oaths” (Thomson Reuters, 2021, pp. 576-577). This limitation can be found in the U.S. Constitution, Fifth Amendment (U.S. Const. amend. V) & Fourteenth Amendment (U.S. Const. amend. XIV).
Selective prosecution	“1. Selective enforcement. 2. The practice or an instance of a criminal prosecution brought at the discretion of a prosecutor rather than one brought as a matter of course in the normal functioning of the prosecuting authority’s office. Selective prosecution violates the Equal Protection Clause of the Fourteenth Amendment if a defendant is singled out for prosecution when others similarly situated have not been prosecuted and the prosecution’s reasons for doing so are impermissible” (Thomson/West, 2000, p. 612). This limitation can be found in the U.S. Constitution, Fifth Amendment (U.S. Const. amend. V) & Fourteenth Amendment (U.S. Const. amend. XIV).
Void for vagueness	“Defined: 1. (Of a deed or other instrument affecting property) having such an insufficient property description as to be unenforceable. 2. (Of a penal statute) establishing a requirement or punishment without specifying what is required or what conduct is punishable, and therefore void because violative of due process” (Thomson Reuters, 2021, p. 844). This limitation can be found in the U.S. Constitution, Fifth Amendment (U.S. Const. amend. V) & Fourteenth Amendment (U.S. Const. amend. XIV).

5.3.11.5 Criminal law Issues relating to criminal offenses involving discrimination, diversity, equity, inclusion, and belonging

When studying constitutional and criminal law it is important to understand the similarities and differences between specific statutory criminal offenses and various terms/phrases that “sound” like a criminal offense or criminal law term but are, in reality, a sociological, criminological term, political science or media term. Here are some examples:

• Bias (Hate) Crime: Initially referred to as a “Hate Crime” this broad sociological category of criminal offenses also became known as a Bias Crime. In fact, in Oregon, the statutory criminal offense is called a Bias Crime (Oregon Department of Justice, n.d.); see Or. Rev. Stat. § 166.165 (1981). However, in other states (Washington) the criminal offense is named Hate Crime, Wash. Rev. Code § 9A.36.080 (1981). In the simplest terms, a Bias/Hate crime must include both “bias/hate” and a “crime.” The “bias/hate” aspect of these crimes is based on the victim’s actual or perceived race, color, religion, national/ethnic origin, sexual orientation, gender, gender identity, or disability. The “crime” part of these offenses can be either crimes against persons (murder, assault, rape, harassment, stalking, etc.) or crimes against property (arson, criminal mischief, trespass, etc.) (U.S. Department of Justice, 2023b). In some jurisdictions, should the judge determine that the underlying criminal offense committed could be classified as a Bias/Hate Crime under state law definitions, then either the sentence could be increased, parole possibilities denied, or both. Further, the Bias/Hate Crime determination “may be utilized by the sentencing judge as the sole factor for denial of probation, shock probation, conditional discharge, or other form of non-imposition of a sentence of incarceration” (Ky. Rev. Stat. § 532.031, 2017, para. 3).
• Discrimination: The concept of discrimination is certainly a legal term; however, it relates more to other aspects of law rather than to criminal law. Discrimination is generally defined as favoring or disfavoring a certain class of people based solely on characteristics identified as protected by federal law (race, age sex, national/ethnic origin, religion, disability, veteran) or characteristics defined by state law or local ordinance (sexual orientation, gender, gender identity). Generally, discrimination issues alone, without some related criminal activity or other Constitutional violation, are addressed through civil lawsuits filed by individuals or by government agencies. Discrimination litigation can involve the Fifth or Fourteenth Amendments (U.S. Const. amend. V, XIV); Title VII (Civil Rights Act of 1964) or other federal laws; specific state discrimination laws; or local ordinances.
• Human Trafficking: Human trafficking, also known as trafficking in persons, is both a social science term and, as a legal term, is defined as “a crime that involves compelling or coercing a person to provide labor or services or to engage in commercial sex acts. The coercion can be subtle or overt, physical or psychological. The exploitation of a minor for commercial sex is human trafficking, regardless of whether any form of force, fraud, or coercion was used” (U.S. Department of Justice, 2023a, para. 1). Some jurisdictions have enacted specific criminal offenses titled “Human Trafficking.” See Kentucky’s Ky. Rev. Stat. § 529.100 (2020).
• Pretext Stop: A pretext stop is a sociological, media, and legal term and is broadly defined as when a law enforcement officer stops a person or vehicle for some legitimate reason (jaywalking, tail light out, failure to give a turn signal, failure to stop) when, in reality, the officer is actually interested in initiating an investigation for some other serious crime (drugs, weapons, etc.) (Office of Police Accountability, n.d.). In the case of Whren v. United States (1996), the U.S. Supreme Court upheld the pretext stop practice as not being an unreasonable seizure under the Fourth Amendment (U.S. Const. amend. IV), so long as the officer had probable cause to initially stop the person/vehicle for an offense (Civilian Complaint Review Board, n.d.; Hall, 1996). However, by local ordinance or state law, Washington and other jurisdictions have prohibited police officers from engaging in pretext stops (and a number of other police practices that federal courts have upheld) altogether (Office of Police Accountability, n.d.). In the case of California, state statutes effective January 1, 2024 significantly restrict/limit police practices relating to traffic stops to the point that pretext stops would be difficult, if not impossible, to perform (Lewis, 2023). In Illinois, effective January 1, 2024, police will no longer be permitted to pull over drivers because some object (such as fuzzy dice) was hanging from the rear-view mirror-a traffic offense frequently used to justify pretext stops (Lieb & Mulvihill, 2023). In April 2023, as part of an effort to prohibit pretext stops, the city council of Memphis, Tennessee, in a unanimous vote, enacted an ordinance (Driver Equality Act) that would prohibit minor traffic stops such as the ones involved in pretext traffic stops (Jones, 2023). However, on March 28, 2024, the governor of Tennessee signed into law legislation passed by the Tennessee General Assembly that effectively repealed the Memphis Driver Equality Act (Mattise, 2024).
• Racial Profiling: Defined: “The law-enforcement practice of using race, national origin, or ethnicity as a salient basis for suspicion of criminal activity” (Thomson Reuters, 2021, p. 657). Racial Profiling, sometimes known as, or associated with, Bias-Based Policing is a form of Selective Enforcement (see below) and, as such, violates the Equal Protection Clause of the Fourteenth Amendment (Civilian Complaint Review Board, n.d.). If proven, the existence of Racial Profiling in a traffic stop will be a complete defense to any criminal offenses charged, as the initial seizure of the person/vehicle would be unconstitutional. Further, proof of Racial Profiling can form the basis for a civil rights violation lawsuit against the offending officer(s).
• Selective Enforcement/Prosecution: See Table 5.11 for the definition. These are legal terms that involve specific situations where a police officer (Selective Enforcement) or a prosecutor (selective prosecution) decides to charge/prosecute someone based on impermissible criteria (race, etc.–see Bias/Hate Crime discussion) rather than on the facts of the offense committed and applicable legal standards. As outlined in Table 5.11, Selective Prosecution violates the Equal Protection Clause of the Fourteenth Amendment (U.S. Const. amend. XIV), where a defendant is singled out for enforcement or prosecution when others similarly situated have not been charged and the reasons for the legal action are impermissible. If proven, Selective Enforcement/Prosecution will be a complete defense to any criminal offense charged as a result of the action.
• Mass/Serial/Spree Murder: A mass murder is defined as the “killing of three or more people at one time and in one location. Serial murder is the killing of three or more people in more than a 30-day period, with a significant cooling-off period between the murders. A spree murder is the killing of three or more people, usually within a 30-day period and typically during the course of another felony (such as a robbery)” (Holmes & Holmes, 2001, para. 2). Generally, these three terms come from a sociological and/or criminological background rather than a “pure” criminal law background. These “categories” of offenders would be charged with multiple violations of a state’s murder (or in some jurisdictions, manslaughter) statute. Typically, jurisdictions do not enact specific statutory criminal offenses by these names. It should be noted that if these multiple murders were committed with animosity (bias/hate) toward a specific person or group (identified above in the Bias/Hate discussion), then these murder crimes could be characterized as Bias/Hate crimes, and prosecution and sentencing could be pursued under the Bias/Hate statutes.

5.4 Current Developments in Constitutional/Criminal Law

As is the case with all bodies of law, Constitutional Law and Criminal Law are constantly evolving as the dynamics of the culture, politics, morals, and standards change. §5.4 offers an overview of some of the more important recent developments in these two bodies of law within the U.S. Criminal Justice System. These developments can be grouped into four broad categories: 1) Domestic Violence/Family Law; 2) Technology-Related Law; 3) Constitutional/Criminal Procedure Law; and 4) Evolving Social Standards. And, as can be seen, sometimes the most significant changes involve repealing criminal laws rather than creating new criminal offenses.

For an overview of the various changes to the U.S. Constitution over the years, see How the U.S. Constitution Has Changed and Expanded Since 1787.

5.4.1 Domestic Violence/Family Law

Abortion: After the decision by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization (2022), removing the federal constitutional protections afforded in Roe v. Wade (1973), several states were quick to enact abortion-specific criminal offenses that criminalized many actions related to abortions—performing (or assisting), counseling, concealing, etc. (Kimport, 2022).

Cyber Harassment (Cyber Bullying): As harassment and bullying over social media (often by and between teenagers) gained nationwide attention, many jurisdictions enacted specific criminal offenses directed at these events. The Wash. Rev. Code § 9A.90.120 (2004) is one example of the criminalization of such actions. Most cyber harassment/bullying offenses are felonies.

Elder Abuse: As the “Baby Boomers” aged, incidents of “Elder Abuse” became to appear more in the media. In fact, upon closer evaluation, experts identified a variety of distinct categories of Elder Abuse (Nursing Home Abuse Center, 2024). As a result of the increased interest and number of incidents, many jurisdictions enacted specific criminal offenses relating to the abuse, neglect, or mistreatment of an elderly victim. The Kentucky statute Ky. Rev. Stat. § 209.030 (2005) is one example of a state statute relating to elder abuse.

Hate Crimes: With the increase in attacks/assaults on a number of minority populations, many states enacted specific criminal offenses that addressed these actions.

Hate crimes reported to the FBI by law enforcement agencies rose from more than 8,000 in 2020 to nearly 11,000 the following year, according to updated statistics released last week. Crimes against Asian Americans and Pacific Islanders, Sikhs and bisexual people all more than doubled. Meanwhile, hate crimes against Black, White and LGBTQ people made up nearly half of all incidents. (Li & Larten, 2023)

For 2021, the state with the highest number of Hate Crimes was Washington (Statista, 2023). The Washington criminal statute Wash. Rev. Code § 9A.36.080 (1981) is one example of a criminal offense classified as a Hate Crime. Further, in March 2024 Washington enacted legislation that amended this offense to designate the defacing or destroying of public property a hate crime, previously the crime only applied to private property (Seattle Times Editorial Board, 2024).

Human Trafficking: With the dramatic increase in Human Trafficking, jurisdictions found it necessary to enact specific criminal offenses relating to the problem. Kentucky’s Human Trafficking offenses (Ky. Rev. Stat. § 529.100 (2020), engaging in, and Ky. Rev. Stat. § 529.110 (2007), promoting) are typical of the statutes designed to address these issues. Human Trafficking offenses are most always high-level felonies.

Buying/Selling a Child: As bizarre as it may seem, the buying/selling of children has become a huge part of the problem of Human Trafficking. Accordingly, some states like Washington (Wash. Rev. Code § 9A.64.030, 1980) adopted severe felony criminal offenses to address these offenses. Further, in March 2024 Washington enacted legislation that designated the defacing or destroying public property a hate crime, previously the designation had only applied to private property (Editorial Board, 2024).

Strangulation: In an effort to close some of the prosecutorial “gaps” that exist in Domestic Violence (DV) law (many assault offenses are misdemeanors), some states have adopted method-specific criminal assault statutes that are felonies to ensure that prosecutors will have felony charges to pursue in DV cases. For example, Kentucky enacted Strangulation assault statutes (Ky. Rev. Stat. § 508.170, 2019), and both degrees of this criminal offense are a felony.

Video Voyeurism: The criminal offense of Voyeurism (“Peeping Tom”) crimes has existed for several years. However, with the advent of more sophisticated cameras and other electronic devices that can be secretly installed, it became necessary to enact specific criminal offenses relating to electronic devices. One such statutory offense is the Kentucky statute (Ky. Rev. Stat. § 531.100, 2002), which makes it a felony to use an electronic device to secretly observe/view/record protected sexual activity or nudity.

5.4.2 Technology Issues

Cell Phones: As states began to experience a dramatic increase in vehicle accidents due largely to driver inattention while operating a cell phone, criminal offenses relating to using (or even holding, in some cases) a cell phone were enacted to reduce such accidents, e.g., Washington state’s (Wash. Rev. Code § 46.61.672 (2017).

Computer Trespass: Facing an alarming increase in incidents of computer “hacking,” states quickly enacted criminal offenses relating specifically to this serious problem. Washington state’s (Wash. Rev. Code § 9A.90.040, 2016) are examples of such crimes.

5.4.3 Constitutional/Procedural law

Bail: Some states (California, New York) have initiated significant statutory bail reform to provide fairer and more equitable treatment of low-income defendants (Judelson, 2023). Some jurisdictions (Illinois) have gone so far as to eliminate the “cash bond” requirement altogether (Franklin, 2023).

Un-housed/un-sheltered populations and the Fourth Amendment: In some jurisdictions (e.g., Washington), courts have held that the Fourth Amendment’s “expectation of privacy” (U.S. Const. amend IV) applies to tents and other “outside” areas because these places are, for all intents and purposes, the home/dwelling of the people who are staying there. Accordingly, the courts hold that because the Fourth Amendment’s prohibition against “unreasonable searches” applies, absent exigent circumstances, consent, or a search warrant, entry by law enforcement personnel would violate the Fourth Amendment (Fines & Fees Justice Center, 2021).

No-Knock Warrants: Due largely to several tragic incidents involving the execution of “No-Knock” search warrants, some jurisdictions (e.g., Washington) have completely prohibited the law enforcement community from engaging in such practices. See Wash. Rev. Code § 10.31.040(s) (2010).

5.4.4 Evolving Social Standards

Concealed Deadly Weapons Laws: Many states have completely eliminated the legal requirement that a person possess a state-issued Concealed Weapon Permit to carry a concealed weapon hidden/concealed on their person or in their vehicle. Dropping this requirement has virtually eliminated any criminal offenses relating to illegally carrying a concealed weapon (U.S. Concealed Carry Association, n.d.). Even California, with some of the most restrictive gun laws in the United States, has recently seen a “relaxation” of open and concealed carry laws through both legislative and judicial actions, (U.S. Concealed Carry Association, n.d.). Journalist Julian Glover discusses the historic origins of California’s restrictive gun laws and the arguably racist nature of these laws that date back to the open carry actions by members of the Black Panther Party in the mid-1960s (2023).

Legalization/Decriminalization of drugs: Several states have legalized (or decriminalized) the possession for personal use of smaller amounts of marijuana (DISA Global Solutions, 2024). Further, while Oregon previously decriminalized the possession for personal use of virtually all small amounts of drugs (Vital Strategies, 2023), in March 2024, the state “reversed course” and enacted legislation that reinstated the criminal penalties for drug use and possession (Santucci, 2024). In jurisdictions where the criminal offense of simple drug possession has been eliminated (or significantly modified), these changes have significantly impacted the investigation, enforcement, and prosecution of drug-related offenses (Dills et al., 2021).

Repeal of California’s Loitering for Prostitution Law: In July 2022, California Governor Gavin Newsom signed Senate Bill 357 to stop police from arresting people loitering for prostitution. “To be clear, this bill does not legalize prostitution,” Newsom said in a signing message in 2022, “It simply revokes provisions of the law that have led to disproportionate harassment of women” (para. 4).

For additional information on this California legislation, see the following article: California Repeals Provision Criminalizing Loitering Related to Possible Prostitution.

5.5 Employment Opportunities Related to Law

5.5.1 General Overview of Law-Related Employment

Each chapter of this book offers students some insight into the employment opportunities related to the topics addressed within the respective chapters. Accordingly, the following is a brief overview of job opportunities related to law and the legal profession. The specific jobs explored for Chapter 5 are: 1) lawyers, 2) Limited License Legal Technicians, and 3) paralegals. Students should be aware that each state sets its own educational, licensing, and practice requirements for each of these three career fields. Students are encouraged to go online and review the specific requirements for the state or states in which they might be interested in obtaining employment.

5.5.2 Requirements for, and duties of, three jobs related to law

5.5.2.1 Lawyers

Generally, those interested in becoming a licensed attorney must obtain a four-year undergraduate degree, apply, be admitted to and graduate from a law school, and then take and pass a comprehensive state bar examination for each state where they intend to set up a legal practice. Oregon became the first state to eliminate the bar exam requirement while California and Utah are also considering an alternative (Kaur, 2023). On March 15, 2024, Washington joined Oregon in dropping the bar requirement (Rosciglione, 2024). Below are several links with information offering insight into the processes and protocols for becoming a lawyer. The information is grouped into three broad questions or topics:

1. Is Law School “Right” for Me?
   1. Why You Should Not Go to Law School, Huffington Post
   2. So, You Want To Go To Law School?, Medium
   3. Should I Go To Law School? Reasons For And Against, Zippia
   4. 6 Questions to Ask Yourself Before You Go to Law School, CNBC
2. How Do I Do Well on the LSAT?
   1. The Law School Admission Council, Law School Admission Council
   2. Frequently Asked Questions About the LSAT, Law School Admission Council
   3. 10 Steps to Ensure You Ace the LSAT, Accepted.com
   4. 5 Harsh Truths That Will Make You Better At The LSAT, Lawschooli.com
   5. 8 Essential LSAT Tips, LSAT Center
3. How Do I Do Well in Law School?
   1. 4 Strategies to Succeed in Law School, The Princeton Review
   2. 20 Tips for Success in Law School, Fowler School of Law, Chapman University
   3. Ten Things I Wish I’d Known Before Becoming a Law Student, The Guardian
   4. Law School: How Many Hours a Week Should I Be Studying?, California Desert Trial Academy College of Law
   5. How Much Writing Do You Have to Do in Law School?, Word Counter Blog

For a “glimpse” into the various aspects of Student Life at a major law school, see University of Washington’s Law Student Life, where you will find information about UW Law School Student Resources and the following specific topics: Diversity, LGBTQIA Resources, Student Ambassadors, Student Organizations, UW Law & the Military, and Wellness.

5.5.2.2 Limited Liability Legal Technicians (LLLT)

The position of Limited Liability Legal Technician (LLLT) is a relatively new career field. An LLLT does not practice law at the same level as a fully licensed attorney; however, LLLTs work at a professional level higher than a paralegal (Speck, 2017). In 2012, Washington became the first state to implement an LLLT program; unfortunately, in 2020, Washington became the first state to cancel its LLLT program (Rigley, 2020). Several states still maintain their LLLT programs; however, the trend seems to be “wait and see” regarding whether LLLT programs will be expanded or canceled (Byers, 2018-2019).

Here are some links to articles that explain what an LLLT does, the education and practical requirements necessary to become an LLLT, and the licensing and reporting requirements of the position.

• The L in Triple LTs: The Limited Nature of Licenses for Legal Technicians, Oklahoma Bar Association
• Limited License Legal Technical Program Under the Lens, NWSidebar
• Limited Practice Legal Professionals: A Look at Three Models, The Bar Examiner

For a discussion of the requirements to become an LLLT in Washington, see Does Washington State’s Limited License Legal Technician (LLLT) Designation Mean Paralegal Licensing Is On Its Way?. For a discussion of Washington’s decision to cancel its LLLT program, see Washington, State That Pioneered Licensed Legal Technicians, Cancels The Program.

5.5.2.3 Paralegals

The specific duties of a paralegal can vary tremendously depending on the type of law being practiced (civil v. criminal v. corporate), the nature of the employment (solo practice v. law firm) and the particular legal interests of the individual. Specific duties often include preparing legal documents, conducting interviews, assisting with legal proceedings and engaging in various office and administrative work (Parker, 2023).

Here are links to some articles that explain what a paralegal does, the educational and other requirements to become a paralegal, the licensing and reporting requirements of the position and the general range for salaries for paralegals.

• How To Become A Paralegal: Responsibilities, Requirements And Salary, Forbes
• Paralegals, American Bar Association
• What a Paralegal Does and How to Become One, US News

Further Reading

Cohen, A. (2020). Supreme inequality: The Supreme Court’s fifty-year battle for a more unjust America. Penguin Press.Currie, D. P. (2000). The Constitution of the United States: A primer for the people (2nd ed.). University of Chicago Press.Hall, D. E., & Feldmeier, J. (2017). Constitutional law: Governmental powers and individual
freedoms (3rd ed.). Pearson.
McCloskey, R. G., & Levinson, S. (2016). The American Supreme Court (6th ed.). University of Chicago Press.
McDonald, F. (1985). Novus ordo seclorum: The intellectual origins of the Constitution. University Press of Kansas.
Nelson, W. E. (2000). Marbury v. Madison: The origins and legacy of judicial review. University Press of Kansas.Van Geel, T. R. (2008). Understanding Supreme Court opinions (6th ed.). Pearson.