America's Courts and the Criminal Justice System, 11th Edition solutions manual and test bank by David W. Neubauer | Henry F. Fradella
Chapter 2
Law and Crime
Learning Objectives
1. List the four key elements defining law.
2. Identify the three key characteristics of common law.
3. Explain the importance of the adversary system.
4. Name the four amendments of the Bill of Rights that deal specifically with criminal procedure.
5. List the five major areas of civil law.
6. Identify the major elements of a crime.
7. Identify some of the most important legal defenses in American law.
8. Discuss the effects of the criminal law on courts.
KEY TERMS
administrative regulations: Rules and regulations adopted by administrative agencies that have the force of law. (32)
adversary system: The burden is on the prosecutor to prove the defendant guilty beyond a reasonable doubt, and the defense attorney is responsible for arguing for the client’s innocence and asserting legal protections. (33)
Affirmative defense: The defendant bears the burden of persuasion to prove the defense. (34)
Alibi defense: a defense which argues that the defendant could not have committed the crime. For example, a defendants argues that witnesses can show he was somehowere else at the time the crime was committed. (46)
Anglo-American law: The American legal system. (30)
Attempt: An act done with the intent to commit a crime, an overt act toward its commission, the failure to complete the crime, and the apparent possibility of committing it. (45)
attendant (accompanying) circumstances: Conditions surrounding a criminal act—for example, the amount of money stolen in a theft. (46)
beyond a reasonable doubt: Burden of proof required by law to convict a defendant in a criminal case. (35)
Bill of Rights: The first ten amendments to the U.S. Constitution, guaranteeing certain rights and liberties to the people. (38)
Burden of persuasion: the obligation of a party to prove a fact to a certain level. (34)
Burden of production: requirement that one must produce evidence to put facts in issues. (34)
civil law: Law governing private parties; other than criminal law. (30)
Clear and convincing evidence: a higher level of proof than the preponderance of the evidence standard, yet it falls short of proof beyond a reasonable doubt. (35)
common law: Law developed in England by judges who made legal decisions in the absence of written law. Such decisions served as precedents and became “common” to all of England. Common law is judge made, it uses precedent, and it is found in multiple sources. (30)
constitution: the first document that establishes the underlying principles and general laws of a nation or state. (32)
contract: agreements between two or more persons involving a promise supported by mutual obligations. (39)
corpus delicti: The body or substance of a crime, composed of two elements—the act and the criminal agency producing it. (44)
criminal defense: attempts to cast doubt on the defendant’s guilt. (46)
criminal law: Laws passed by government that define and prohibit antisocial behavior. (43)
declaratory judgment: a judicial determination of the rights of the parties. (40)
defendant: The person or party against whom a lawsuit or prosecution is brought. (40)
domestic relations: Relating to the home; the law of divorce, custody, support, adoption, and so on. (40)
due process of law: A right guaranteed in the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and generally understood to mean the due course of legal proceedings according to the rules and forms established for the protection of private rights. (38)
elements of a crime: Five principles of a crime that are critical to the statutory definition of crimes: guilty act, guilty intent, relationship between guilty act and guilty intent, attendant circumstances, and results. (44)
felony: The more serious of the two basic types of criminal behavior, usually bearing a possible penalty of one year or more in prison. (43)
guilty act (actus reus): Requirement that, for an act to be considered criminal, the individual must have committed a voluntary act that resulted in criminal harm. (45)
guilty intent (mens rea): Mental state required for a crime. (45)
infancy: a criminal defense where children under the age of 7 are considered legally incapable of forming criminal intent and therefore cannot be held criminally responsible for their actions. (50)
inference: conclusions or deductions the trier-of-fact may reasonably make based on the facts that have bene established by the evidence. (34)
inheritance: Property received from a dead person, either by effect of intestacy or through a will. (40)
injunction: A court order that requires a person to take an action or to refrain from taking an action. (40)
in rem: a lawsuit brought against a thing rather than against a person. (42)
insanity defense: an excuse defense which seeks to excuse acts committed by defendants because their mental state prevented them from understanding the consequences of their actions. (48)
judge-made law: The common law as developed in form and content by judges or judicial decisions. (30)
judgment: A court’s official decision about the rights and claims of each side in a lawsuit. (40)
juvenile delinquency: An act committed by a juvenile for which an adult could be prosecuted in a criminal court. (50)
law: Body of rules enacted by public officials in a legitimate manner and backed by the force of the state. (29)
misdemeanor: Lesser of the two basic types of crime, usually punishable by no more than one year in jail. (43)
mistake of fact: Defense in which a mistake regarding a factual matter would have justified the act or omission that is the subject of a criminal prosecution. (48)
monetary damage: Sums of money that a court orders to be paid to a person who has suffered a legal injury. (40)
municipal ordinance: A statutory law enacted by a local unit of government. (32)
necessity: Defense that allows a defendant to argue that his or her conduct should either be excused entirely or mitigated to a less serious charge because mens rea was formed under extraordinary circumstances that render it unfair to hold the defendants responsible for the unlawful conduct. (48)
plaintiff: The person or party who initiates a lawsuit. (40)
precedent (stare decisis): A case previously decided that serves as a legal guide for the resolution of subsequent cases. (30)
preponderance of the evidence: In civil law, the standard of proof required to prevail at trial. Commonly understood as proof that something is more likely than not. (35)
presumption: A conclusion or deduction that the law requires the trier-of-fact to make in the absence of evidence to the contrary. (34)
presumption of innocence: Requires the trier-of-fact to accept that the defendant is innocent unless the prosecution meets its burden to prove that the defendant is guilty beyond a reasonable doubt. (34)
presumption of sanity: Requires that all defendants be presumed sane unless sufficient evidence of thei insanity is proven, usually by clear and convincing evidence. (34)
probable cause: The existence of facts – independently verifiable factual information that supports the conclusion that there is a “fair probability” that a crime occurred or that a particular person was involved in a crime. (34)
procedural defenses: Defenses that focus on compliance with the rules and processes of the criminal justice system, such as the right to a speedy trial. (48)
procedural law: Law that establishes the methods to be followed in starting, conducting, and finishing a lawsuit. (33)
property: Legal right to use or dispose of particular things or subjects. (40)
reasonable, articulable suspicion: The next level up from mere suspicion. Instead of just having a hunch or intuitive feeling, a person can articulate the reasons why he or she is suspicious. (34)
remedy: The relief granted by a court. (40)
result: A consequence; an outcome. (46)
selective incorporation: The legal doctrine whereby the Supreme Court ruled that the due process clause of the Fourteenth Amendment made some provisions of the Bill of Rights applicable to the states. (38)
self-defense: The commission of an act under circumstances the criminal law does not seek to punish such as using force in defense of oneself, other persons or property. (48)
stare decisis: Latin phrase meaning “let the decision stand.” The doctrine that principles of law established in earlier judicial decisions should be accepted as authoritative in similar subsequent cases. (30)
statute: A written law enacted by a legislature. (32)
substantive law: Law that deals with the content or substance of the law—for example, the legal grounds for divorce. (33)
tort: Legal wrong done to another person. (40)
union of actus reus and mens rea: Criminal law requirement that the guilty act and the guilty intent occur together. (46)
CHAPTER OUTLINE
I. The Basis of Law
II. LO 1: List the four key elements defining law.
A. Law is defined as:
1. body of rules
2. enacted by public officials
3. in a legitimate manner
4. backed by the force of the state
B. Common law heritage characteristics: it is judge-made law, based on precedent and found in multiple sources including:
1. constitutions
2. statutes
3. administrative regulations
4. judicial decisions
C. Precedent is often referred to as “stare decisis,” translated literally as “let the decision stand”; it is characterized by a case-by-case analysis of legal problems where courts apply prior decisions to promote fairness and consistency.
III. The Common Law Heritage.
LO 2: Identify the three key characteristics of the common law.
A. Judge-Made Law
B. Precedent
C. Multiple Sources of Law
1. Constitutions
2. Statutes
3. Administrative Regulations
4. Judge-Made law
IV. The Adversary System.
LO 3: Explain the importance of the adversary system.
A. Safeguards.
B. Presumptions and Inferences.
C. Burdens of Proof.
D. Courts, Law & media
1. Chicago (2002)
V. The Rights of the Accused.
LO 4: Name the four amendments of the Bill of Rights that deal specifically with criminal procedure.
A. Due Process
B. Bill of Rights
VI. Civil Law Overview.
LO 5: List five major areas of civil law.
A. Types of Civil Disputes
B. Civil Remedies
C. Using Civil Remedies to Fight Crime
VII. Courts, Controversy, & Reducing Crime
A. Should asset forfeiture be limited?
B. Law in controversy: The incivility of civil justice
C. Civil liability of criminal justice officials
VII. Criminal Law Overview.
LO 6: Identify the major elements of a crime.
LO 7: Identify some of the most important legal defenses in American law.
A. Elements of a crime.
1. Actus reus: The guilty act
2. Mens rea: Criminal intent
3. Union of act and intent
4. Attendant circumstances
5. Results
B. Defining crimes.
C. Criminal defenses.
1. Defenses that negate mens rea
2. Defenses of justification
3. Procedural defenses
D. Case close-up: United States v. Loughner.
1. Insanity
E. Delinquency.
VIII. Effects of Criminal Law on the Courts.
LO 8: Discuss the effects of the criminal law on the courts.
A. Criminal law and inconsistencies.
B. Criminal law and plea bargaining.
C. Criminal law and sentencing.
CHAPTER SUMMARY
The basis of law can be summarized in two words: human conflict. Business and everyday activities depend on mechanisms for mediating inevitable human conflicts. Law is an everyday word, but as Professor Lawrence Friedman (1984, p. 2) suggests, “It is a word of many meanings, as slippery as glass, as elusive as a soap bubble.” Most scholars define law as a body of rules enacted by public officials in a legitimate manner and backed by the force of the state (Neubauer & Meinhold, 2012). The first element is self-evident. The second element is of critical importance. All organizations of any size or complexity have rules and regulations that govern their members. The third element means that it must be agreed upon ahead of time how the rules will be changed. The final element says that these rules and regulations would be largely meaningless without sanctions.
The legal system of the United States, and other English-speaking nations which were once British colonies, trace their origins back to England and its so-called common law. The common law first appeared in medieval England after the Norman conquest in 1066. A distinct body of national law began to develop during the reign of Henry II (1154–1189), who successfully expanded the jurisdiction of the royal courts. Thus, the term common law meant general law as opposed to special law; it was the law common to the entire land. Common law is used in many English-speaking nations, including England, Australia, New Zealand, Canada, and the United States. During the development of the common law legal system, a distinctive way of interpreting the law gradually emerged. Three key characteristics of this common law heritage stand out: The law was judge-made, based on precedent, and found in multiple sources.
Within the hierarchy of law, constitutions occupy the top rung. A constitution is the first document that establishes the underlying principles and general laws of a nation or state. The U.S. Constitution is the fundamental law of the land. All other laws—federal, state, or local—are secondary. Similarly, each state has a constitution that is the “supreme law of the state.” Constitutions define the powers that each branch of government may exercise. Constitutions also specify how government officials will be selected. The second rung of law consists of statutes. Laws enacted by federal and state legislatures are usually referred to as “statutory law.” Until the latter part of the 19th century, American legislatures played a secondary role in the formulation of law. It was not until the 20th century that state legislatures became the principal source of law (Friedman, 1984).
Law is both substantive and procedural. Substantive law creates legal obligations. Procedural law establishes the methods of enforcing these legal obligations. The guiding assumption of the adversary system is that two parties, approaching the facts from entirely different perspectives, will uncover more of the truth than would a single investigator, no matter how industrious and objective. By putting power in the hands of several different parties, the adversary system creates another type of safeguard. In diffusing power, the adversary system provides a third safeguard. All trials are governed by both rules of procedure and rules of evidence. Criminal trials start with two presumptions: the presumption of sanity and the presumption of innocence.
The concept of “burden of proof” actually encompasses two separate burdens: the burden of production and the burden of persuasion. The prosecution always bears the burden in persuading the trier-of-fact that the defendant committed each and every element of all crimes charged. In some circumstances, however, the defendant in a criminal trial bears the burden of persuasion to prove a certain defense, such as insanity. When the defendant bears the burden of persuasion to prove a defense, it is called an affirmative defense.
At the low end of the scale, there is no proof. Just above that, there is what the law calls “mere suspicion”—a hunch or an intuition. The next level up from mere suspicion is reasonable, articulable suspicion. In most civil cases, the standard of proof is a preponderance of the evidence. It is commonly understood as proof that something is more likely than not. Clear and convincing evidence is a higher level of proof than the preponderance of the evidence standard, yet it falls short of proof beyond a reasonable doubt. One of the most fundamental protections recognized in the American criminal justice process is the presumption of innocence. The state has the burden of proving all the elements of the crime(s) charged beyond a reasonable doubt; defendants are not required to prove themselves innocent. It is sufficient to say that proof beyond a reasonable doubt requires that the guilt of the defendant be established to a reasonable, but not absolute certainty.
Procedural law in the United States places a heavy emphasis on protecting the individual rights of each citizen. A key feature of a democracy is the insistence that the prevention and control of crime be accomplished within the framework of law. Because the powers of the criminal courts are so great, there is concern that those powers might be abused or misapplied. Restrictions on the use and application of government power takes the form of rights granted to the accused. The primary justification for providing constitutional safeguards for those caught in the net of the criminal process is to ensure that innocent persons are not harassed or wrongly convicted. Another reason that democracies respect the rights of those accused or suspected of violating the criminal law is the need to maintain the respect and support of the community.
Most disputes that come to court involve private parties. These suits are brought because the courts possess powers that private parties do not. Tort law involves a legal wrong done to another person. Another type of private law involves contracts—agreements between two or more persons involving a promise supported by mutual obligations. Property, which centers on the ownership of things, is another division of private law. Domestic relations constitutes a major area of law. These matters of family law mainly involve divorce and related issues such as child custody, child support, and alimony. Property received from a person who has died is governed by laws on inheritance. Individuals, groups, or governments sue because they want something from another party. What they want is termed a remedy. A court’s official decision about the rights and claims of each side in a lawsuit is known as a judgment. Thus, if the plaintiff wins, the judgment also contains a remedy, which is the relief granted by the court. Monetary damages are sums of money that a court orders paid to a person who has suffered a legal injury. Although there are several types of damages that courts may order, the two pleading types of civil damage awards involve compensatory and punitive damages. Another type of remedy occasionally requested is a declaratory judgment, which is a judicial determination of the legal rights of the parties. A third type of remedy is called an injunction. An injunction is a court order that requires a person to take an action or to refrain from taking an action.
Civil law is having a growing impact on the criminal justice system. Victims of crime are increasingly resorting to civil litigation, in addition to victim compensation and restitution, as a means of recovering from the ill effects of crime. Moreover, victims’ rights advocates are advocating civil remedies as one way for victims to reassert control. Increasingly, rape victims are pursuing justice in the civil courts, seeking damages from almost anyone they can find who may have shared liability for the rape.
In recent years, civil justice has become almost as controversial as criminal justice. Critics view product liability and personal injury lawsuits as having corrupted the civil justice system into a type of lottery. Proponents of the current civil justice system argue against tort reform. They point out that curtailing civil lawsuits would prevent deserving tort victims from collecting all of the damages to which they are entitled, and would interfere with the ability of juries to properly punish wrongdoers (Neubauer & Meinhold, 2013). Victims of crime often use the civil justice system in an attempt to recover monetary damages from criminal defendants. Their motivation is often a quest for vindication of their beliefs with little likelihood of collecting any money.
Some disputes require special treatment because civil law remedies are not enough. Criminal law relates to actions that are considered so dangerous, or potentially so, that they threaten the welfare of society as a whole. In civil law, the injured party receives compensation. Violators of the criminal law, however, are punished. The stress on punishment derives from the goal of criminal law to prevent and control crime. It is important to recognize that the criminal law is intended to supplement, not supplant, the civil law. Thus, as discussed earlier, a person may be prosecuted criminally, and the victim may also seek to recover civil damages for the same act.
In every criminal case, the prosecution must prove the corpus delicti beyond a reasonable doubt. In defining the elements of a particular offense, criminal laws are based on five general principles. Most behavior cannot be considered criminal unless: a guilty act, called an actus reus is committed, with a particular level of criminal intent, called mens rea, and the guilty act and the criminal intent are related. In addition, a number of crimes also requite the prosecution to prove additional elements, such as the presence of certain attendant circumstances and/or that the guilty act caused a particular result. Using the principles of actus reus, mens rea, attendant circumstances, and result, legislatures define the elements of crimes in penal codes.
Individuals may have performed illegal acts, but may nonetheless be not guilty of a crime due to the applicability of legally-recognized defenses. Legal defenses derive from the way crime is defined. In most criminal cases the defense attempts to cast doubt on the defendant’s guilt. In other cases, however, the defense may assert specific legal doctrines in an attempt to secure an acquittal. An alibi defense permits defendants to argue that they were somewhere else at the time the crime was committed. Sometimes people engage in an act that, at first blush might appear to be criminal, but they do so under circumstances demonstrating that they lacked true criminal intent. These defenses are said to negate mens rea. The two most common of these defenses include the mistake of fact defense and the defense of necessity. Defenses of justification are based on the commission of an act under circumstances the criminal law does not seek to punish, such as using force in self-defense, defense of other persons, or defense of property. There are a number of procedural defenses that the law recognizes for public policy reasons. These defenses are generally unconcerned with factual guilt. Rather, they focus on compliance with the rules and processes of the criminal justice system. Defenses of excuse seek to excuse acts committed by defendants who should not be held criminally responsible for their actions because they were too young (see section on delinquency, below) or because their mental state prevented them from understanding the consequences of their actions.
As mentioned above, the law recognizes youthful age as a criminal defense. In most states children under the age of 7 are considered legally incapable of forming criminal intent, and therefore cannot be held criminally responsible for their actions. This is a criminal defense referred to as infancy. The premise of juvenile delinquency is that people under a certain age are less responsible for their actions than adults.
Because the criminal code constitutes the basic source of authority for law enforcement agencies, the way crimes are defined has an important bearing on the entire administration of criminal justice. Because legislatures change criminal codes piecemeal, the end product is a set of criminal laws with obsolete prohibitions and inconsistent penalties. In practice judges and prosecutors attempt to rectify these inconsistencies by informally developing a consistent set of penalties. The courts must apply the law as they find it, but they also have a responsibility to rectify inconsistencies in that law. Variations in the definitions of crimes and differences in degrees of seriousness provide fertile ground for plea bargaining. The most obvious way criminal law affects the operations of the criminal courts is in sentencing. Because of the public’s concern about crime, pressure is strong to increase penalties. As a result, legislatures often increase the harshness of sentencing, and the courts mitigate that harshness.
DISCUSSION QUESTIONS
1. What are the sources of American law? What benefits are there in having multiple sources of law? Are there also disadvantages?
Possible discussion points: constitutions, codes, cases, and administrative rules and regulations. Pros: checks and balances on power. Cons: fragmented codes and inconsistency in the rules among the various states.
LO 1
2. Does the presumption of innocence have any real effect in criminal cases? If not, is it still important?
Possible discussion points: maybe not, in light of the extremely high number of negotiated pleas.
LO 4
3. The law recognizes certain defenses to crime. In those cases, even when an individual has committed the guilty act (actus reus) of an offense, they are not guilty of the crime charged. Why shouldn’t those who commit the guilty act always be held accountable for their actions?
Possible discussion points: duress, juvenile delinquency, and insanity. Fairness of punishment for involuntary acts, for those acts committed when an individual is too young, or those mentally incapable of understanding the criminal nature of their actions.
LO 7
4. Explain the important of the adversary system. What safeguards are provided by the adversary system?
Possible discussion points: substantive law, procedural law, different perspectives, cross-examination, and diffusion of power.
LO 3
5. Describe the elements of crime. Why is it important to have the union of actus reus and mens rea?
Possible discussion points: corpus delicti, actus reus, mens rea, union of act and intent, attendant circumstances, and results.
LO 6
ASSIGNMENTS
1. Write a paper naming the four amendments of the Bill of Rights that deal specifically with criminal procedure. Explain their importance in criminal law.
LO 4
2. Describe the five major areas of civil law. Read the following article:
http://www.cnn.com/2012/08/25/justice/pennsylvania-abuse-lawsuit/index.html?hpt=ju_c2
Explain the difference between the criminal and civil lawsuits for Victim One. What type of civil suit is this?
LO 5
3 Describe the effects of the criminal law on the courts.
LO 8
INTERNET ASSIGNMENTS
1. “Exploring U.S. Courts”
http://www.uscourts.gov/Home.aspx
· The official website for courts in the United States
· Assignment: Assign students to visit the U.S. Courts website and your state courts. Have students describe your court system.
LO2
2. “International Courts”
http://www.bjs.gov/content/pub/html/wfcj.cfm
· The World Factbook of Criminal Justice Systems
· Assignment: Assign students to choose another country on the website. Have students describe the similarities and differences between the criminal justice system of the chosen country from the website and the U.S. criminal justice system.
LO2
3. “Steps in a Felony Prosecution”
https://ovr.legis.state.ak.us/ovrdocuments/typical_prosecution.pdf
· Online description of the steps in a felony prosecution in the State of Alaska.
· Assignment: Have students read the article and describe the steps in a felony prosecution in Alaska.
LO4
4. “Reading a Legal Citation”
http://www.oyez.org/cases/2012
· Online information regarding U.S. Supreme Court Cases.
· Assignment: Have students find a recent U.S. Supreme Court criminal justice case and break down the legal citation as shown in Exhibit 2.1 in the chapter. Additionally, have students brief the case.
LO2
Chapter 2
LAW AND CRIME
TEST BANK
MULTIPLE CHOICE
1. The key characteristics of common law include all of the following, except:
a. predominately judge-made c. found in multiple sources
b. based on justice d. applies rules of law found in previous cases
ANS: B REF: 30 OBJ: 2
2. The burden of proof required for a victory in a civil case is:
| a. | preponderance of evidence | c. | probable cause |
| b. | beyond a reasonable doubt | d. | reasonable suspicion |
ANS: A REF: 34 OBJ: 5
3. Much of the Bill of Rights has been made applicable to the states through the:
| a. | Fourth Amendment | c. | legislative process |
| b. | doctrine of precedent | d. | Fourteenth Amendment |
ANS: D REF: 38-39 OBJ: 4
4. The prosecution always bears the burden of persuading the trier-of-fact that the defendant:
a. is guilty based on clear and convincing evidence.
b. committed the majority of the elements of the crime(s) charged
c. committed each and every element of the crime(s) charged
d. is guilty and deserves to be punished to the fullest extent of the law
ANS: C REF: 34 OBJ: 3
5. Corpus delicti is a Latin phrase meaning:
| a. | guilty act | c. | guilty mind |
| b. | body of the crime | d. | body of the victim |
ANS: B REF: 44 OBJ: 6
6. Which of the following is not an element of a crime?
| a. | Mens rea | c. | Attendant circumstances |
| b. | Actus reus | d. | Guilty conscience |
ANS: D REF: 44-46 OBJ: 6
7. Mens rea refers to the:
| a. | guilty act | c. | scene of the crime |
| b. | body of the crime | d. | guilty mind |
ANS: D REF: 45-46 OBJ: 6
8. Which Amendment to the U.S. Constitution prohibits unreasonable searches and seizures?
| a. | First Amendment | c. | Fifth Amendment |
| b. | Fourth Amendment | d. | Eighth Amendment |
ANS: B REF: 39 OBJ: 4
9. Which two Amendments to the U.S. Constitution mention due process?
| a. | Fifth and Sixth | c. | Fifth and Fourteenth |
| b. | Eighth and Tenth | d. | Eighth and Fourteenth |
ANS: C REF: 39 OBJ: 4
10. Victims of crime are increasingly resorting to:
| a. | notifying law enforcement | c. | vigilantism |
| b. | criminal prosecution | d. | civil litigation |
ANS: D REF: 41 OBJ: 5
11. Unlike all the other states, this state derives its civil law from the Napoleonic Code.
| a. | Alabama | c. | Louisiana |
| b. | Wisconsin | d. | Florida |
ANS: C REF: 30 OBJ: 1
12. A court order directing a specific action or lack of action is known as an:
| a. | interrogatory | c. | injunction |
| b. | indictment | d. | interdiction |
ANS: C REF: 41-42 OBJ: 5
13. An example of a legal attendant circumstance would be:
| a. | the credibility of eyewitnesses | c. | the defendant’s getaway vehicle |
| b. | the defendant’s character | d. | the amount of money or goods stolen |
ANS: D REF: 46 OBJ: 6
14. The primary justification for providing constitutional safeguards in the criminal justice process is to ensure that:
a. innocent persons are not harassed or wrongly convicted
b. the guilty are punished
c. society administers justice to the accused
d. convictions are not overturned on appeal
ANS: A REF: 36-37 OBJ: 4
15. Which of the following is the highest burden of proof?
| a. | Clear and convincing evidence | c. | Probable cause |
| b. | Preponderance of evidence | d. | Proof beyond a reasonable doubt |
ANS: D REF: 34-35 OBJ: 3
16. Most civil cases involve a request for:
| a. | declaratory judgment | c. | an injunction |
| b. | monetary damages | d. | temporary restraining order |
ANS: B REF: 40 OBJ: 5
17. A common civil remedy used in drug cases is:
| a. | writ of habeas corpus | c. | asset forfeiture |
| b. | mandatory minimum sentences | d. | declaratory damages |
ANS: C REF: 41-42 OBJ: 5
18. This Amendment to the U.S. Constitution guarantees the right to counsel.
| a. | Fourth | c. | Sixth |
| b. | Fifth | d. | Eighth |
ANS: C REF: 38-39 OBJ: 4
19. The party who initiates a civil suit is known as the:
| a. | Appellant | c. | appellee |
| b. | Victim | d. | plaintiff |
ANS: D REF: 40 OBJ: 5
20. Laws created by federal and state legislatures are known as:
a. ordinances b. administrative regulations
b. statutes c. legislation
ANS: B REF: 32 OBJ: 1
21. Substantive law creates:
| a. | only criminal law |
| b. | only civil law |
| c. | methods of enforcing legal obligations |
| d. | legal obligations |
ANS: D REF: 33 OBJ: 3
22. Infancy and insanity are known as:
a. substantive defenses c. justification defenses
b. excuse defenses d. mental incapacity defenses
ANS: B REF: 48 & 50 OBJ: 7
23. When a plaintiff files a civil lawsuit they seek to obtain:
| a. | a remedy such as monetary damages or an injunction. |
| b. | public acknowledgement of some wrong committed against them. |
| c. | a conviction against someone who committed a crime against them. |
| d. | retribution through the justice criminal justice process. |
ANS: A REF: 40 OBJ: 5
24. The two major adversary actors in the criminal justice system are:
| a. | police and criminals | c. | prosecutors and defense attorneys |
| b. | courts and the media | d. | defendants and victims |
ANS: C REF: 33-34 OBJ: 3
25. The obligation of a party to produce evidence to put facts in issue is called the burden of:
a. presumption c. progression
b. production d. persuasion
ANS: B REF: 34 OBJ: 1
26. The United States operates under the adversary system of law, characterized by which of the following important principles?
| a. | Accusations of criminal conduct would not be raised against a defendant unless there was some certainty of guilt. |
| b. | That two parties approaching the facts from entirely different perspectives offers the best chance at uncovering the truth. |
| c. | Obtaining the truth is paramount regardless of the methods employed in uncovering it. |
| d. | That punishment should be swift and certain. |
ANS: B REF: 33-34 OBJ: 3
27. Which of the following is one example of a safeguard provided by the adversarial system?
| a. | The presumption of equality |
| b. | Pretrial detention of defendants |
| c. | The right to compensation for losses suffered |
| d. | The right to cross-examination |
ANS: D REF: 33-34 OBJ: 3
28. From the case citation Miranda v. Arizona, 384 U.S. 436 (1966), the reader knows which of the following?
| a. | The decision is in favor of the defendant. |
| b. | The case was a criminal case. |
| c. | The case is in volume 384 of the Supreme Court Reports. |
| d. | The case is found on page 1966. |
ANS: C REF: 31 OBJ: 1
29. When a defendant bears the burden of persuasion to prove a defense, it is called a(n):
a. alibi defense c. defense rebuttal
b. affirmative defense d. violation of due process
ANS: B REF: 34 OBJ: 5
30. When government prosecutors file an in rem asset forfeiture proceeding, and the property at issue is seized, what must the owner of the property do to get his property back?
| a. | The burden of proof is on the government that the property is subject to forfeiture--the owner does not need to do anything. |
| b. | The owner must show that the property was not used illegally. |
| c. | File a countersuit alleging a Fourth Amendment violation of the right against unreasonable seizures |
| d. | Nothing. These types of proceedings have been declared unconstitutional by the Supreme Court. |
ANS: A REF: 42 OBJ: 5
31. Criminal trials start with two presumptions: the presumption of innocence and the presumption of:
a. sanity c. zealous representation
b. equality d. judicial activism
ANS: A REF: 34 OBJ: 3
32. In the absence of evidence to the contrary, the law requires the trier of fact to make a conclusion or deduction known as a(n):
a. presumption c. judgment
b. inference d. opinion
ANS: A REF: 34 OBJ: 3
33. Which of the following is not a major area of civil law?
a. personal injury c. divorce and child custody
b. inheritance/probate d. juvenile delinquency
ANS: D REF: 39-40 OBJ: 5
34. This doctrine requires a judge to decide a case by applying the rule of law found in previous cases, provided the facts are similar.
a. selective incorporation c. precedent
b. judicial restraint d. jurisprudence
ANS: C REF: 30-31 OBJ: 2
35. The adversary system incorporates a series of checks and balances aimed at curbing political misuse of the criminal courts through:
a. incorporation of rights c. prosecutorial discretion
b. diffusion of powers d. judicial activism
ANS: B REF: 33-34 OBJ: 3
36. Which of the following does not meet the requirement of actus reus?
a. voluntary acts c. contemplation
b. omission d. possession
ANS: C REF: 45 OBJ:
37. Prisoner lawsuits claiming conditions of confinement constitute cruel and unusual punishment are alleging their rights under this Amendment are being violated.
a. Eighth c. Tenth
b. Fourteenth d. Sixth
ANS: A REF: 43 OBJ:
38. The level of proof for an officer to conduct a brief, limited, investigative detention (“stop
and frisk”) is:
a. probable cause c. clear and convincing evidence
b. mere suspicion d. reasonable suspicion
ANS: D REF: 34 OBJ:
39. After confessing to racketeering, Nicky Cheeks’ (through his high-priced mob attorney) is now saying that his confession was coerced and that his waiver of Miranda rights was not valid, therefore his confession should not be admissible in court. By what standard of proof is the prosecution now required to prove the validity of Nicky’s waiver of rights?
a. No standard, it is the responsibility of the defense to prove the waiver was not valid.
b. Probable cause
c. Preponderance of the evidence
d. Proof beyond a reasonable doubt
ANS: C REF: 35 OBJ:
40. Under the adversary system, it is the responsibility of the defense attorney to:
a. prove the defendant not guilty by a preponderance of the evidence.
b. argue for the client’s innocence and assert legal protections.
c. dispute all evidence presented by the prosecution.
d. present a defense that counters all claims made by the prosecution.
ANS: B REF: 33 OBJ: 3
41. Joe Smith suffers from paranoid schizophrenia. He has been under a doctor’s care for ten years, but often stops taking his medication because he thinks he’s cured. While off his medication, Joe steals a car to “escape from a CIA hit man,” accidentally running over and seriously injuring a pedestrian in the process. Joe is arrested and charged with several felonies. His public defender believes he is not guilty by reason of insanity. Which of the following is true regarding the use of the insanity defense in this case?
a. In addition to the burden of proving the elements of the offense, the prosecution bears the additional burden of proving the defendant is not insane.
b. With increasing public awareness regarding mental illnesses, the insanity defense has become more commonly presented and is often successful.
c. The defense bears the burden of proving the defendant’s insanity, often an expensive proposition.
d. If acquitted, Joe will likely spend less time in a mental facility than in jail or prison.
ANS: C REF: 48 OBJ:
CRITICAL THINKING SCENARIOS
CASE 2.1
Roberta picks her toddler up at the daycare after she gets off work. The child is asleep in her car seat and Roberta decides to stop off at the local pool hall for a beer and to talk to some friends for a little while. She leaves the child in the car while she goes inside. She winds up staying for a second beer and a couple of line dances. The temperature in the car reaches 120 degrees and the child dies of hyperthermia. Roberta, though not very bright, would never intentionally harm her child.
42. Which of the following elements is apparently lacking in this scenario?
a. actus reus c. mens rea
b. omission d. criminal result
ANS: C REF: 45-46 OBJ: 6
43. Which of the followings statements regarding Roberta’s criminal liability is true?
a. Roberta is not guilty because this tragedy was an accident.
b. Roberta is not guilty because although she was negligent, she had no criminal intent to harm
her child.
c. Roberta is guilty because she intentionally left her child in the car and the same intent
applies to any harm that results.
d. Roberta is guilty because she had a legal duty to keep her child safe—her negligent
omission resulted in the child’s death.
ANS: D REF: 45-46 OBJ: 6
CASE 2.2
Uniformed officers are driving a marked car into an area known for heavy drug trafficking, intending to investigate drug activity and anticipating encountering drug customers and lookouts. One officer sees the suspect standing next to a building and holding an opaque bag. The suspect looks in the direction of the officers and flees. The officers turn their car, watch the suspect run through an alley, and eventually corner him on the street. One officer leaves the car, stops the defendant, and conducts a frisk of the defendant, discovering a concealed handgun.
44. Which of the following statements is true regarding the legality of the “stop and frisk”?
a. The stop was illegal. The officers did not have specific, articulable facts to justify the stop.
b. The stop was legal. A brief investigative stop can be justified by the circumstances.
c. The stop was legal. The gun provided probable cause to justify the stop, a standard of proof higher than reasonable suspicion.
d. The stop was illegal. The officers didn’t find any drugs on the suspect.
ANS: B REF: 34-35 OBJ:
45. Which of the following facts cannot be used to provide justification for the stop?
a. It was an area known for heavy drug trafficking.
b. The suspect was standing next to a building holding an opaque bag.
c. The suspect’s unprovoked flight upon seeing the officers.
d. Discovery of the concealed handgun.
ANS: D REF: 34-35 OBJ:
TRUE/FALSE
1. The use of precedent promotes fairness and consistency.
ANS: T REF: 30-31 OBJ: 2
2. “Beyond a reasonable doubt” means over 95% certainty of guilt.
ANS: F REF: 34-35 OBJ:
3. Legislatures did not become a principal source of law in the U.S. until the 20th century.
ANS: T REF: 32 OBJ: 2
4. Tort law includes any wrong, hurt, or damage done to a person’s rights, body, reputation, or property.
ANS: T REF: 40 OBJ: 5
5. Due process of law is not actually mentioned in the U.S. Constitution.
ANS: F REF: 37-38 OBJ: 4
6. Civil suits may only be filed by individual citizens.
ANS: F REF: 39-40 OBJ: 5
7. Selective incorporation refers to the application of certain provisions of the Bill of Rights to the states through the Fourteenth Amendment.
ANS: T REF: 38-39 OBJ: 4
8. Democratic governments derive their powers from the law.
ANS: F REF: 37 OBJ: 5
9. If a person is found not guilty in a criminal case, they may not be sued in civil court.
ANS: F REF: 34-35 OBJ: 5
10. Necessity is not a defense recognized by law.
ANS: F REF: 48 OBJ: 7
11. All crimes require the same level of intent.
ANS: F REF: 45-46 OBJ: 6
12. To be criminal, an act must be voluntary.
ANS: T REF: 45 OBJ: 6
13. Defendants in a criminal case are never required to bear the burden of persuasion.
ANS: F REF: 48 OBJ: 3
14. The standard of proof for the government prosecutor under the adversary system is beyond a reasonable doubt.
ANS: T REF: 34-35 OBJ: 3
15. An example of a procedural safeguard in the trial process is contained in the Sixth Amendment’s right to confront witnesses.
ANS: T REF: 36-39 OBJ: 3
16. A prison guard may not be sued by a prison inmate.
ANS: F REF: 43 OBJ: 5
17. A failure to act when there is a legal duty to act can also qualify as “actus reus.”
ANS: T REF: 45 OBJ: 6
18. Punitive damages in a tort case represent the actual losses suffered by the plaintiff and are frequently awarded by juries.
ANS: F REF: 40 OBJ: 5
19. Law is enacted by public officials in a legitimate manner.
ANS: T REF: 29 OBJ: 1
20. The Constitutional right to counsel applies at both criminal and civil proceedings.
ANS: F REF: 38-39 OBJ: 4
21. The legal defense of insanity has its roots in 20th century jurisprudence.
ANS: F REF: 48 OBJ: 7
22. Administrative regulations are the newest, fastest growing, and least understood source of law.
ANS: T REF: 32 OBJ: 1
23. Due process requires that no law or government procedure should be arbitrary or capricious.
ANS: T REF: 38-39 OBJ: 4
24. The doctrine of stare decisis (“let the decision stand”) precludes judges from overturning previous decisions.
ANS: F REF: 30 OBJ: 1
25. The right to cross-examination is guaranteed by the Sixth Amendment.
ANS: T REF: 33-34 OBJ: 3
COMPLETION
1. Common law developed into a system of law made primarily by _____________.
ANS: judges
REF: 30 OBJ: 2
2. A ruling in a previous case that serves as a guide in deciding subsequent cases with similar circumstances is known as a ____________________.
ANS: precedent
REF: 30 OBJ: 2
3. The ________________ is the supreme and fundamental law of the land.
ANS: U.S. Constitution
REF: 32 OBJ: 1
4. The ______________ is the name for the first ten Amendments of the U. S. Constitution.
ANS: Bill of Rights
REF: 38-39 OBJ: 1
5. The protection of Fifth, Sixth, and Fourteenth Amendment rights during a legal proceeding is commonly referred to as _____________________.
ANS: due process
REF: 38-39 OBJ: 4
6. ______________ are conclusions or deductions that can be made based on the facts that have been established by the evidence.
ANS: Inferences
REF: 34 OBJ: 2
7. ________________ is independently verifiable factual information that supports the conclusion that there is a “fair probability” that a crime occurred or that a particular person was involved in a crime.
ANS: Probable cause
REF: 34-35 OBJ:
8. One of the most fundamental protections recognized in the American criminal justice process is the presumption of ______________.
ANS: innocence
REF: 34-35 OBJ: 1
9. The doctrine of applying the Bill of Rights to the states through the Fourteenth Amendment is known as ____________________.
ANS: selective incorporation
REF: 38-39 OBJ: 4
10. The ________________of a crime provide the technical definition of a crime.
ANS: elements
REF: 46 OBJ: 6
11. A key characteristic of the common law is the use of , often referred to as stare decisis.
ANS: precendent
REF: 30 OBJ: 2
12. The conditions surrounding a criminal act are known as ______________________.
ANS: attendant circumstances
REF: 46 OBJ: 6
13. Courts are required to utilize a set of rules during the processing of both civil and criminal cases, referred to as ____________________ law.
ANS: procedural
REF: 33 OBJ: 8
14. ____________ are the best known aspects of procedural law.
ANS: Trials
REF: 33 OBJ: 3
15. _____________law involves a type of lawsuit filed by a person when they are injured by another person.
ANS: Tort
REF: 40 OBJ: 5
16. __________ are agreements between two or more persons involving a promise supported by mutual obligation.
ANS : Contracts
REF: 40 OBJ:
17. Guilty intent or guilty mind is also known as ____________________.
ANS: mens rea
REF: 45-46 OBJ: 6
18. Brief, limited investigative detentions (“stop and frisk”) are also known as __________ stops as a result of the landmark Supreme Court decision authorizing them.
ANS: Terry
REF: 34 OBJ: 4
19. Civil asset forfeiture is termed a(n) ____________________ proceeding because the action is against the thing, not the person who owns the thing.
ANS: in rem
REF: 42 OBJ: 5
20. ____________________ is the most obvious way criminal law affects the operations of the criminal courts.
ANS: Sentencing
REF: 50-51 OBJ: 8
ESSAY
1. Contrast civil and criminal law proceedings.
ANS:
A crime is public wrong, codified in law, prosecuted by the state, must be proven beyond a
reasonable doubt, and consequences can range from fines or imprisonment to the death penalty.
A tort is a civil wrong against an individual and it is up to the individual to bring legal action.
Torts only require a showing of a preponderance of the evidence and the consequences are not
considered to be as severe, usually limited to injunctions or financial awards to compensate the
victim. An act can be both a tort and a crime, and failure to prove guilt in a criminal case does
not preclude a victory in civil court, an example being the O.J. Simpson case.
REF: 39-46 OBJ: 5, 6
2. Which amendments from the Bill of Rights are pertinent to criminal procedure? Describe what rights they affect or provide for defendants.
ANS:
The Fourth Amendment provides protection against unreasonable searches and seizures and outlines warrant requirements. The Fifth Amendment provides the right against self-incrimination and against double jeopardy. The Sixth Amendment provides the right to counsel, a speedy and public trial by jury, the right to confront and cross-examine witnesses, and the right to compel witnesses to appear and testify. The Eighth Amendment prohibits cruel and unusual punishments and excessive bail and fines. These rights are the basis for the protection of defendants’ due process rights in criminal procedure. All of these Amendments in the Bill of Rights (the first ten Amendments to the Constitution) have been incorporated to apply to state criminal proceedings through the Fourteenth Amendment.
REF: 38 OBJ: 4
3. A man whose gas tank exploded without any warning and severely burned him filed a complaint against the car manufacturer. Explain what the civil remedies are in the examples above, including why civil remedies may be used to combat criminal acts.
ANS:
The injured man may file a complaint for both compensatory and punitive damages against the car company. Civil cases go after a defendant’s money and the reduced standard of proof is easier to meet. Civil asset forfeiture is a potent remedy for obtaining the goods used or obtained as a result of the illegal action.
REF: 40-41 OBJ: 5
4. Discuss why legislatures have become the principal source of law beginning in the early 20th century to the present.
ANS:
In the early 20th century, the rapidly industrializing society was faced with new types of problems, such as how to protect the interests of workers and consumers. The cautious approach to problem solving of the common law courts would not work when dealing with questions of such a broad scope. The increasing complexity of society required legislators to enact broad rules of law with the precision and detail needed to address immediate problems.
The large number of governmental bureaucracies that exist today are authorized by federal, state, and local governments to issue rules and regulations consistent with principles specified in a statute or municipal ordinance. Administrative regulations are the newest, fastest-growing, and least understood source of law. The federal government alone issues thousands of pages of new rules and policies each year.
REF: 32 OBJ: 1
5. In order for a defendant to be convicted of a crime the prosecution must successfully offer proof beyond a reasonable doubt of each element of the crime charged. List the five elements of crime. Do you believe it is fair that a person might not be held responsible for a crime if there is an element missing? For example, a person who does the actus reus (sells drugs to a neighbor) but who lacks the mens rea (sold the drugs because of death threats from their roommate if they didn’t complete the drug deal).
ANS:
Five elements of crime (corpus delicti = body of the crime) include: the guilty act (actus reus), guilty intent (mens rea), relationship between (fusion of) the guilty act and intent, attendant circumstances, and result. Students should wrestle with the question of various defenses like duress, insanity, and self defense acknowledging that the law protects people whose actions are unlawful, but whose intentions provide a justification or excuse.
REF: 44-46 OBJ: 6, 7
6. As civil law is set up to settle disputes between individuals, is it proper for the
government to use civil law to deter violations of criminal law, like drug dealing (e.g., using public nuisance laws to condemn abandoned houses used by drug dealers)?
ANS: Students answers will vary, but should include a discussion of the different levels of proof necessary for civil as opposed to criminal actions and whether or not it is appropriate for the government to use non-law enforcement tools to address crime problems.
REF: 39-43 OBJ: 5
7. Criminal law affects the courts in many ways, one of which revolves around sentencing
of offenders. Describe the connection between the public, legislature and courts relating to criminal sentences.
ANS: The most obvious way criminal law affects the operations of the criminal courts is in sentencing. The legislature establishes sentencing options from which judges must choose. Because of the public’s concern about crime, pressures are strong to increase penalties. As a result, legislatures increase the harshness of sentencing, and the courts mitigate that harshness. Legislative action and courthouse reactions follow a predictable pattern:
— Step I. Laws calling for severe punishments are passed by legislatures on the assumption that fear of great pain will terrorize the citizenry into conformity.
— Step II. Criminal justice personnel soften these severe penalties for most offenders (a) in the interests of justice, (b) in the interests of bureaucracy, and (c) in the interests of gaining acquiescence.
— Step III. The few defendants who then insist on a trial and are found guilty, or who in other ways refuse to cooperate, are punished more severely than those who acquiesce.
— Step IV. Legislatures, noting that most criminals by acquiescing avoid “the punishment prescribed by law,” (a) increase the prescribed punishments and (b) try to limit the range of discretionary decision making used to soften the harsh penalties.
— Step V. The more severe punishments introduced in the preceding step are again softened for most offenders, as in Step II, with the result that the defendants who do not acquiesce are punished even more severely than they were at Step III.
REF: 50-51 OBJ: LO 7
8. Describe the five major areas of civil law.
ANS: The five major areas of civil law are tort, contract, property, domestic relations, and inheritance/probate. Tort law involves the legal wrong done to another person. Tort injuries include any wrong, hurt, or damage done to a person’s rights, body, reputation, or property. Contracts are agreements between two or more persons involving a promise supported by mutual obligations. Property law regulates three types of property: real, personal and intellectual. Domestic relations law involves divorce and related issues such as child custody, child support, and alimony. Property received from a person who has died is governed by laws on inheritance. When someone dies without a will, the civil law of intestacy determines how possessions should be distributed by a court in probate proceedings.
REF: 39-41 OBJ: 5
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