Criminal Procedure : week of 22 January 2007

22 January 2008

• Crim pro is commonly thought to be 4thA, 5thA, and 6thA law. This is more about the use of state power in the criminal justice process (and abuse). Purpose for use of law, purpose for avoiding the use of law using something else.
• P. 569 in vol 2: essay by Egon Bittner on police discretion. Paragraph 2. then bottom of third. The law is an authority-granting device. It is the source of the discretion that is the defining characteristic of the criminal justice system: the choices made available to an actor by grants of authority and constraint (or lack) on its use. Discretion is shaped by the reason for the grant of authority. pp. 569-572. The reasons for selective invocation of the law are implied, not explicit. Law doesn't get used for its intended purpose: power is given for stated reasons, but it gets used for lots of reasons. Overused, even.
• When is arrest the right response? When is something else better? How do you decide?
• The power to arrest is overused. We'll look at 3-4 problem areas of human behavior, and see how the law is intended to deal with them, and then look at the effects of arrest, prosecution, conviction, and sentence.
• Problem-oriented prosecution/policing. In the mid-80s, the police profession had been rocked by some research (which they ignored at first): the Kansas City Random Patrol Study. The volume of radio-car deployment was varied throughout the city to see whether the strategy of roaming the city to create the illusion of ubiquitous presence was an effective crime deterrent. The study showed that increasing or decreasing patrols made little if any difference. So if random motor patrol has no effect on crime, why aren't we getting better service for our money?

  Police executives started to get worried about their careers, and the health of their profession. They were alarmed that the budgets of private security firms were rising quickly, while municipal police departments remained steady: the competition was doing better at getting resources. So what were they doing to get that market share?

  So they began to examine strategies for getting more value for their limited resources. WI Prof. Herman Goldstien is the guru of problem-oriented policing. Instead of responding to failures (i.e., arresting violators), are there things that can address the causes of crime, and therefore reduce the need for arresting? The police had gotten out of the business of protecting things, and were in the business of harvesting the results of their failures. San Diego did this pretty well, NYPD was OK until Giuliani.

  This was successful enough that prosecutors caught on. Now the PD works 24x7, but the prosecutor doesn't. So how can they learn what causes public safety problems? They had basically become case-processing bureaucracies. That doesn't create a whole lot of value, so what can be done? Well, they were less successful, and partly that's a constraint of their operating model.

• Police discretion can be thought of as this question: how do we deploy police resources?
• We will talk about 4A and 5A. We'll talk about the law some also. We're not preparing to argue motions to suppress evidence. Instead, we're looking for the reasons why evidence rules may not marry up well with police actions. Police may not want arrests and prosecution: they may want just to sieze the guns or drugs right now, whether or not it gets suppressed at trial.
• Interesting problem, though: you're not supposed to search or sieze, but you want to get contraband away from people. As a result, you get a lot of police activity not governed by law. So what can the law do to structure the discretion and guide the behavior of people we give power to?
• We'll also study anti-social behaviors to understand what motivates us to deploy resources. But this will be empirical research more than case law. Note that enforcement of the criminal law doesn't remove the problem that the behavior represents.
• We'll also look at the role of the lawyer, and rules of professional conduct (these are not statutes so much as exhortations with teeth). They guide a good lawyer, not catch/punish a bad lawyer.
• We'll talk about pleas also. There are relatively few trials, nearly all matters are disposed of by a plea of guilty to something, or nollo contendere. Lawyers are very important to this process, in terms of their obligations to clients and the people of the state.
• "Prohibition gave us the 4th amendment, the war on drugs took it away." Cynical saying.
• Pretext arrests: USSC has blessed arresting people in order to search people for things we'll use to prosecute people for other offenses.
• 5th amendment: Do we get what we want when we use the exclusionary rule to protect Constitutional principles? Does your right to remain silent actually get you anything?
• 6th amendment: are lawyers available in precincts? In the backs of police cars? In WI, we provide counsel early, and this actually results in faster disposition.
• We'll discuss terrorism, and what laws we want/need in times of terrorism. For example, would it be wise to have torture warrants?
• Sentencing: how is state power and force going to be used to produced a positive result by interfering with someone's autonomy? What are we hoping to accomplish, and what are our chances of success? Given the breadth of discretion, should be be concerned about the absence of law controlling it? Looking at attempts to structure it more, were they any good?

23 January 2008

• "Law in Action:" true/disturbing fact-- the law in action is what the prosecutor says it is. A defense attorney has less ability to do justice, in that sense.
• Sexual assault: Brown and Baldwin cases.
• At the turn of the century, what mental state was required for rape, other thanknowing that the victim was not the perpetrator's wife. The female must be non- consenting, and must demonstrate the utmost resistance (the opposition of force to force, not retreat), and we'd expect some evidence (scratches, torn clothes, etc.).
• Brown v. State
  The victim is required to prove that she resisted with her utmost force. Is this different from the state having to to prove this as an element of the crime? Remember: the state has to prove the rape happened-- her testimony is important to this, but it's not sufficient.

  The state isn't saying that it's impossible to commit rape (although they sort of suggest it), just that prosecuting it is hard, unless there is an abundance of evidence, or there are witnesses.

  The court here says that as a matter of law, this can not have been rape.

  So as we go forward, how much have we improved? How might we improve? Changing the statute, changing the society's values, etc. We've tried all of them. Obviously, the law is imperfect as a means of controlling human behavior.

  Note also, that the standard "utmost resistance" is hard to qualify: fighting until dead or unconscious?

  The court is worried that men will be exploited by the law, because it's easy to make a charge and hard to defend against it. There is some truth in that, actually-- even today we have not "fixed" this.

  "The sultry 'no.'"

  Note that many women in prison for sexual assault are there as PTAC (facilitating).

• So this horrible nasty law stayed on until the 1970s.
• Baldwin v. State
  The court says there wasn't "utmost resistance" on its face (as Brown would have it), but she was taken at knife point, she tried to escape from the car, etc.

  The court recognizes that "coerced voluntary action" is a contradiction in terms. So they are moderating the law.

  "By force and against her will" is interpreted as including threat. This isn't the same as tearing of clothes and breaking of bones. How much threat is enough threat to make something "against her will?" Does this standard vary from one person to another? Is that sensible? We want the standard to be subjective, but we don't want it to depend on the peculiarities of the victim, and we don't want the statute to dictate the behavior of the victim (in terms of when they report, how they resist, etc.).

• Does the law protect? Why do we not rape (is it fear of arrest and prosecution)?
• Note that many criminal statutes place burdens on the victim. They generally have to come forward with some evidence (i.e., "he took my wallet"), but this makes us uncomfortable with rape. Victims are treated badly in the current system, in a sense, because they are considered pieces of evidence.

  The statute doesn't require the victim to do anything. It's just that the consequences of being a rape victim to do anything (i.e., there's no penalty); it just requires them to come forward with a specific type of evidence, the production of which is traumatic.

• We want the law to distinguish between cases where the accusation is true in fact vs. those where it's not. So a bright-line standard like "utmost resistance" accomplishes this. Also, we want the standard of proof to be high.
• Good point from Karen: the statute only protects women willing to say that their virtue is more important than their lives.
• Anything that requires "against her will" puts the victim's mental state on trial.

24 January 2008

• Sexual assault statutes:
  § 940.225 is lengthy, but that's sort of not surprising, given the way the topic is fraught, just generally.
  • One way of being sure of the crimes and what they are is to look at the elements and identify lesser included offenses. So, for First Degree §940.225(1), we've got three flavors:
    • (a): great bodily harm or pregnancy
    • (b): threat or use of weapon
    • (c): aided and abetted by others
    Note the wording of "sexual contact or sexual intercourse." Is sexual contact included (i.e., there is no additional element?) within sexual contact?

  • Here is where Beth arrives!
  Note third degee is sexual intercourse without consent. Fourth degree is sexual contact without consent. This implies that contact is less than (or at least not the same as) intercourse. So is fourth included within third?
  • Why isn't sexual intercourse sexual contact? Sexual contact requires a mental state, and intercourse does not. For contact, the touching must be for a purpose, and the purpose is not required for intercourse.
  • So 4th is not included in 3rd: there is an additional element in contact.
  • So, is 3rd degree included in 2nd? Not neccesarily. §940.225(2)(g) has no element of "without consent." And (3) requires "without consent." So any second degree that doesn't have the non-consent requirement doesn't include 3rd degree. (note that implied lack of consent is not sufficient in an elements-only jurisdiction).
  • The question: does the 3rd degree require proof of some element not present in 2nd degree? If so, it's not included.
  • So if a complaint doesn't allege sexual intercourse, then there's no chance of treating 3rd as an included offense if 2nd is alleged in the complaint.
  • How much force is required for 2nd? Would Brown be second-degree sexual assault today? Yes: there's the complainant's testimony that there was force. But, was the knocking down a use of force to secure sexual intercourse, or was that a separate crime?
  • How about Baldwin? That's a candidate for first degree: the threat of the knife might linger, even though it was only used for the abduction. But there's also a threat of force (the violence), the make 2nd degree work. But what evidence was there of non- consent? You could object to being kidnapped, and the subsequently consent to sexual intercourse. When it came to the place and the time of sexual intercourse, she did not offer even a verbal objection. Well in (4), consent requires words or overt actions that indicate a freely given agreements. Was her disrobing an overt action? What does "action indicating a freely given agreement" mean, if disrobing doesn't count?
  • So we have a definition of "without consent" in §939.22(48), and that seems to fit. How about this: "see my gun? tell me that you freely agree to have sexual intercourse with me." There's no reference there to what the person is really thinking.
  • Of course, this is obviously silly. But that's what the statute says.
  • The special definition of consent in §940.225(5) is less helpful §939.22. When you're on trial for a crime defined in §940.225, the local definition of consent trumps the other one. Note that consent is not defined in §939.22, only "without consent:" does this mean that we can plug the definition of "consent" in to the definition of "without consent?" Probably not, says our leader.
  • So should we re-draft the law? Well, then we get various folks lobbying the legislature. It certainly could be worse. And we don't know how badly the amending process would go.
• Rape shield law. Let's say a man is accused of rape, and his defense is that the victim is a prostitute and he paid for her services. Is that evidence excluded by the rape shield law?