Intro to Criminal Law and Procedure. (Posted by Gabe)

Hi Friends--

I apologize for the long delay here! But I am now back in the country and immersing myself completely in studies for the California Bar, which I'll be taking in February.

But all that aside, let's take a look at some basics ideas to help you study these subjects. (And yes, I do mean the plural; though you study Criminal Law along with Criminal Procedure in this course, they really are very different, so it may help you to think of them as two separate courses.)

Criminal Law - All About the Elements

The key to criminal law is to think elements. Every crime consists of these sub-parts that must be proven by the prosecutor before the jury will return a guilty verdict. They're really building blocks--and without any one of them, the whole crime will fall.

So know your elements. If you know them cold, you have a roadmap through each crime and a checklist of all the issues that you can be tested on in that crime. So memorize the definitions; they have all of the elements.

Criminal Law - Pitfalls to Avoid

Mens Rea

There are also a couple potential pitfalls that I want to warn you about. The first is mens rea. You already know that different crimes have different required mental states, but be sure you know the exact mental state required for each crime.

Sometimes that is easy. For instance, you know that burglary is a specific intent crime, and what that means is easy. You have to have a specific intent to commit a felony in the structure you broke into. Now, if you argue that a "general intent to break and enter" is enough for burglary, you will hurt your grades badly, but with a little study you should certainly not have that problem!

But sometimes it is a little more tough, because sometimes the same mens rea can mean different things. Take "malice." Malice is the mens rea for murder, mayhem, and arson, along with a couple of others, and it means something different for each of these. The Felony Murder Rule, for example, can give you malice for murder, but there is no such thing as the "felony arson rule." So every time you see a malice crime, make sure you know exactly what malice means.

Defenses

Don't get yourself in the rut of just thinking like a prosecutor when you see a criminal law fact pattern! That can be easy, as you study the elements of each crime, but remember, there's another side. So don't forget to think about defenses every time you look at a criminal law hypo.

Criminal Procedure - Going to the Source

Criminal procedure is really little more than an extension of Constitutional Law, focusing on the specific procedural rights given to accused persons in the Bill of Rights. There are lots of them, and many of them are familiar to even the non-legally trained in this nation. We've all heard of the prohibition on cruel and unusual punishment, for instance, and we all know the "You have the right to remain silent..." spiel used by both real and actor police officers every day.

But do not let that familiarity fool you! The layman's knowledge of criminal procedure is often inaccurate and always incomplete. Unless you go to the source, and know how the Supreme Court has treated that source in real-life situations, you will not have the knowledge that you need.

It is on that basis that I would advise you to memorize the 4th, 5th, 6th, and 8th amendments to the Constitution. That's the source, and the better you know that source the better you can apply it to fact patterns.

Sometimes, though, the source can get confused. For instance, while we've all heard the Miranda warnings: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense." But do you know where they come from? If you read the Constitution, you can't find that list anywhere. The Court used a (the 5th Amendment privilege against self-incrimination, the 6th Amendment right to a lawyer) to come to this conclusion. And while Miranda has been criticized heavily, it is still good law!

One other source question is in the right to counsel. It only appears once in the Constitution, in the 6th Amendment. BUT BE CAREFUL. The Supreme Court has also recognized a 5th Amendment (substantive due process) right to counsel--and it is different in many ways than the 6th Amendment right to counsel! So be sure you study that one carefully.

Criminal Procedure - Breaking it Down

The nice thing about CrimPro is that it can only come up in very limited circumstances, and those circumstances have factual "triggers" that you should use to alert you to the particular right that is being tested.

If you see homes or automobiles, for instance, look for 4th Amendment issues.

If you see arrests, interrogations, and confessions, think 5th Amendment and Miranda (and don't forget both types of the right to counsel).

If you see trials, pleas, or post-conviction actions, make sure you think about the 6th and 8th Amendments.

A Conclusion

Be sure to study carefully, and your questions are most welcome. Feel free to e-mail me!