Criminal Law & Procedure — Elements, Defenses, Bill of Rights, Investigation, Trial

Criminal law in the United States operates on two largely separate tracks:

• Substantive criminal law — what conduct is punishable, with what mental state, subject to what defenses.
• Criminal procedure — how the state may investigate, charge, try, sentence, and punish. Overwhelmingly a body of federal constitutional law applied to state and federal proceedings alike through the Fourteenth Amendment’s incorporation doctrine.

This note covers both.

Substantive doctrine remains primarily state common law and state statutes, with a significant federal layer (Title 18 of the U.S. Code and adjacent titles) for offenses with interstate or federal nexus. The Model Penal Code (American Law Institute, 1962, with later revisions) has been adopted in whole or large part by roughly two-thirds of states and is the dominant unifying reference for substantive law.

Procedural doctrine is anchored in:

• The Fourth Amendment (search and seizure).
• The Fifth Amendment (self-incrimination, double jeopardy, due process, grand jury).
• The Sixth Amendment (counsel, speedy trial, jury trial, confrontation, compulsory process, notice).
• The Eighth Amendment (excessive bail, excessive fines, cruel and unusual punishment).
• The Fourteenth Amendment (incorporation; due process; equal protection in criminal context).

It is supplemented by federal and state rules of criminal procedure (Federal Rules of Criminal Procedure for federal proceedings; state-specific rules for state proceedings) and by an extensive body of statutory law (the Bail Reform Act, the Speedy Trial Act, AEDPA, the Sentencing Reform Act and Sentencing Guidelines, the Crime Victims’ Rights Act).

Part I — Substantive Criminal Law

1. The Two Basic Elements

Every criminal offense (with narrow exceptions) requires:

1. Actus reus — a voluntary act, or an omission where there is a duty to act.
2. Mens rea — the required mental state.
3. Concurrence — the mens rea must accompany (or, in some cases, set in motion) the actus reus.
4. Causation — for result crimes, a causal link between conduct and result.
5. Result and attendant circumstances — for offenses defined by result (homicide) or by circumstances (statutory rape).

1.1 Actus Reus

A voluntary act is required. Reflexive movements, sleepwalking, unconsciousness, and conduct under hypnosis fail the voluntariness requirement (Model Penal Code § 2.01(2)).

Liability for an omission requires a legal duty arising from:

• Statute (failure to file tax return, failure to register as sex offender).
• Contract (lifeguard, caregiver, doctor-patient).
• Special relationship (parent-child, spouse-spouse).
• Voluntary assumption of care that isolates the victim.
• Creation of peril (defendant who put victim in danger has a duty to render aid).

Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962), set out the canonical sources of duty.

Status crimes — status alone may not be criminalized.

• Robinson v. California, 370 U.S. 660 (1962) — unconstitutional to punish narcotics addiction as a status.
• Powell v. Texas, 392 U.S. 514 (1968), limited Robinson to status, not acts arising from addiction (public drunkenness).
• City of Grants Pass v. Johnson, 603 U.S. ___ (2024) — Eighth Amendment does not bar enforcement of generally applicable public-camping ordinances against homeless persons.

1.2 Mens Rea

Common-law approach — broad and uncertain categories:

• Specific intent — intent to achieve a specific further result (assault with intent to kill, larceny, attempt, conspiracy, solicitation, burglary, robbery, false pretenses, embezzlement, forgery, premeditated murder).
• General intent — intent to do the prohibited act, without further required mental state (battery, rape, kidnapping, false imprisonment, arson, depraved-heart murder).
• Malice — common-law murder and arson; reckless disregard or intentional doing of harm.
• Strict liability — no mens rea required (statutory rape in most states, public-welfare offenses, certain regulatory offenses).

Model Penal Code approach (Model Penal Code § 2.02, adopted in roughly two-thirds of states in some form) — four hierarchical mental states:

• Purposely — conscious object to engage in conduct of that nature or cause that result.
• Knowingly — aware that conduct is of that nature, or aware to a practical certainty that result will follow.
• Recklessly — conscious disregard of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct of a law-abiding person.
• Negligently — should be aware of a substantial and unjustifiable risk (objective).

Default rule (MPC § 2.02(3)): where the statute is silent on mens rea, recklessness is the minimum.

Strict liability — no mens rea required. Constitutional limits:

• Morissette v. United States, 342 U.S. 246 (1952) — strong presumption against strict liability in common-law crimes.
• Staples v. United States, 511 U.S. 600 (1994) — National Firearms Act registration; knowledge of weapon’s automatic features required.
• Liparota v. United States, 471 U.S. 419 (1985) — food stamp fraud requires knowledge.
• Public-welfare offenses (food safety, drug labeling) tolerated under strict liability.

Willful blindness / conscious avoidance — deliberate avoidance of knowledge satisfies the knowledge requirement. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011); ostrich instruction.

1.3 Causation

For result crimes, the prosecution must prove factual (but-for) and proximate (legal) causation.

Intervening acts may break the chain unless foreseeable:

• People v. Acosta, 232 Cal. App. 3d 1375 (1991) — defendant who fled police led to helicopter chase and crash; foreseeable; conviction affirmed.
• People v. Kibbe, 35 N.Y.2d 407 (1974) — defendants robbed and abandoned intoxicated victim on roadside; victim struck by car; foreseeable; murder affirmed.
• Commonwealth v. Root, 403 Pa. 571 (1961) — drag-race death; deceased’s own reckless conduct broke the chain (involuntary manslaughter reversed).

Foreseeability is the touchstone. Intervening acts by victims (suicide, refusal of medical care) and third parties (negligent medical treatment) are typically foreseeable; gross negligence or independent criminal acts may supersede.

2. Homicide

The most heavily doctrinally elaborated area of substantive criminal law.

2.1 Common-Law Categories

• Murder — unlawful killing of a human being with malice aforethought. Malice arises from four states:
  1. Intent to kill (express malice).
  2. Intent to inflict grievous bodily harm.
  3. Reckless disregard for human life — “depraved-heart” or “abandoned and malignant heart” murder.
  4. Felony murder — death caused during commission of an inherently dangerous felony (BARRK — burglary, arson, robbery, rape, kidnapping is one mnemonic; doctrine varies widely).
• Voluntary manslaughter — intentional killing in the heat of passion upon adequate provocation that would inflame a reasonable person, before reasonable cooling time, without actual cooling.
  • Traditional adequate provocation: extreme assault or battery, mutual combat, witnessing spouse’s adultery (much narrowed in modern law), illegal arrest.
  • Words alone traditionally insufficient; modern cases recognize informational words that reveal underlying provocation.
  • Girouard v. State, 583 A.2d 718 (Md. 1991) — words alone never adequate provocation.
• Involuntary manslaughter — unintentional killing through:
  • Criminal (gross) negligence.
  • Misdemeanor-manslaughter / unlawful-act doctrine — during commission of non-felony unlawful act; abolished in many jurisdictions.
  • DUI-related vehicular homicide statutes in most states.

2.2 Degrees (Modern Statutory Schemes)

Most states divide murder by degree:

• First-degree murder — premeditated and deliberate killing, or killing during commission of enumerated felonies (statutory felony murder), or by enumerated means (poison, lying in wait, torture, bomb, ambush).
  • Premeditation requires actual reflection on intent to kill; some jurisdictions permit “in an instant” formation (Commonwealth v. Carroll, 412 Pa. 525 (1963)); others require some appreciable interval (State v. Guthrie, 461 S.E.2d 163 (W. Va. 1995)).
  • Deliberation requires cool, dispassionate consideration.
• Second-degree murder — intent-to-kill murder without premeditation, intent-to-do-grievous-bodily-harm murder, depraved-heart murder, and (in many states) non-enumerated felony murder.
  • Catch-all category for unlawful killings with malice that do not fit first-degree categories.
  • Some states (Pennsylvania, California) divide into “second degree” and “third degree.”

2.3 Model Penal Code Scheme

MPC § 210.2 abandons “malice aforethought” altogether:

• Murder — purposely or knowingly causing death, or recklessly causing death under circumstances manifesting extreme indifference to human life (the MPC version of depraved-heart).
• Manslaughter — reckless killing; or killing that would otherwise be murder but committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.
• Negligent homicide — death caused negligently.

2.4 Felony Murder Limits

Modern doctrine restricts felony murder through several limits:

• Inherently dangerous felony rule (California People v. Phillips, 414 P.2d 353 (Cal. 1966)).
• Independent felony / merger doctrine — predicate felony must be independent of the killing (assault cannot serve as predicate — People v. Ireland, 450 P.2d 580 (Cal. 1969)).
• Res gestae — death must be during commission or immediate flight.
• Agency theory vs proximate cause theory — under agency theory (majority), liability arises only for killings by co-felons; under proximate cause theory (minority), liability extends to foreseeable killings by victims or police (People v. Hickman, 319 N.E.2d 511 (Ill. 1974)). California’s People v. Washington, 402 P.2d 130 (1965) — agency theory.

2.5 Notable Homicide Cases

• People v. Goetz, 497 N.E.2d 41 (N.Y. 1986) — Bernhard Goetz subway shooting; New York’s self-defense standard incorporates objective reasonableness, not purely subjective.
• Commonwealth v. Carroll, 412 Pa. 525 (1963) — premeditation can be formed in an instant.
• State v. Guthrie, 461 S.E.2d 163 (W. Va. 1995) — rejected instant-premeditation; required some appreciable time.
• People v. Anderson, 447 P.2d 942 (Cal. 1968) — premeditation factors (planning activity, prior relationship/motive, manner of killing).
• Maher v. People, 10 Mich. 212 (1862) — broadened “adequate provocation” beyond the rigid common-law categories.

3. Crimes Against the Person (Non-Homicide)

• Battery — unlawful application of force to another (common law: a misdemeanor; aggravated battery a felony).
• Assault — attempted battery, or intentionally placing another in apprehension of imminent harmful or offensive contact.
• Mayhem — common-law felony of dismembering or disfiguring; survives in modern aggravated assault statutes.
• Kidnapping — unlawful confinement of another involving either movement (asportation) or concealment.
• False imprisonment — unlawful confinement without movement; lesser included offense of kidnapping.

3.1 Sex Offenses

• Rape — common law: carnal knowledge of a woman not the wife of the perpetrator by force and against her will. Modern statutes: gender-neutral, often defined by lack of consent (with definitions of incapacity, force, threat). Affirmative-consent statutes (California 2014 SB 967, New York Enough is Enough 2015) and reforms in many states have moved toward affirmative-consent frameworks, especially on campus.
• Statutory rape — sexual conduct with a person below age of consent. Traditionally strict liability; some jurisdictions allow reasonable-mistake-of-age defense (People v. Hernandez, 393 P.2d 673 (Cal. 1964)).
• Marital rape exemption — historically barred prosecution of a husband for raping his wife. Eliminated in every state by 1993; New York’s People v. Liberta, 474 N.E.2d 567 (1984), struck the exemption.
• Modern reform — gender-neutral statutes; spousal rape coverage; rape-shield rules (Fed. R. Evid. 412 and state analogues) limiting use of complainant’s sexual history.

4. Property Crimes

4.1 Larceny

The classic common-law definition: trespassory taking and carrying away (asportation) of the personal property of another with intent to permanently deprive. Each element scrupulously parsed:

• Trespassory taking — without consent.
• Asportation — any movement, however slight (a fraction of an inch suffices at common law).
• Personal property — historically excluded real property and intangibles (services, information, electricity); modern statutes broaden.
• Of another — possession, not necessarily ownership; a thief can be the victim of larceny against the original owner.
• Intent to permanently deprive — at the time of taking (concurrence).
• Larceny by trick — taking of possession (not title) by fraud or deception (Pear’s Case, 168 Eng. Rep. 208 (1779) — horse rented with fraudulent intent).
• Continuing-trespass doctrine — if initial taking was wrongful, later formation of intent to permanently deprive can complete larceny.

4.2 Other Property Crimes

• Embezzlement — fraudulent conversion of property by one already in lawful possession.
  • Distinguished from larceny by the lawful initial possession.
  • Examples: bank teller diverting deposits, fiduciary misappropriating trust assets, employee skimming.
• False pretenses — obtaining title to property by intentional false statement of fact with intent to defraud.
  • Distinguished from larceny by trick (which transfers possession but not title).
  • Modern fraud statutes consolidate.
• Robbery — larceny + force or intimidation + from the person or presence of the victim.
  • Aggravated robbery: with deadly weapon, with serious bodily injury, of vulnerable victim.
  • Federal Hobbs Act, 18 U.S.C. § 1951 — robbery and extortion affecting interstate commerce.
• Burglary — common law: breaking and entering the dwelling of another at night with intent to commit a felony therein.
  • Modern statutes drop most limitations: any entry into any structure with intent to commit any crime suffices.
  • First-degree burglary (occupied dwelling, armed) typically retained.
• Arson — common law: malicious burning of the dwelling of another.
  • Modern statutes cover all structures, vehicles, and personal property.
  • Aggravated arson when occupied or for fraudulent purpose.
• Receiving stolen property — receiving property known to be stolen with intent to permanently deprive the owner. Many jurisdictions consolidate with theft.
• Forgery — making or altering a writing with apparent legal significance with intent to defraud.
  • Uttering: passing a known forgery.
• Identity theft — unauthorized use of another’s personal identifying information for fraudulent purposes (18 U.S.C. § 1028; state analogues).

5. White-Collar and Corporate Crime

5.1 Federal Fraud Statutes

• Mail fraud, 18 U.S.C. § 1341 — scheme to defraud + use of the mails (federal jurisdictional hook). Broad scope.
• Wire fraud, 18 U.S.C. § 1343 — scheme + interstate wire transmission.
• Securities fraud — Securities Exchange Act § 10(b), 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5.
• Bank fraud, 18 U.S.C. § 1344.
• Health care fraud, 18 U.S.C. § 1347.
• Honest-services fraud, 18 U.S.C. § 1346 — Skilling v. United States, 561 U.S. 358 (2010), narrowed to bribes and kickbacks.

5.2 Money Laundering

18 U.S.C. § 1956 — conducting financial transactions with proceeds of specified unlawful activity, with intent to promote, conceal, or evade.

5.3 RICO

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–1968 (1970). Elements:

1. Enterprise — a group with a common purpose, an ongoing organization, and continuity (Boyle v. United States, 556 U.S. 938 (2009)).
2. Pattern of racketeering activity — at least two predicate acts within 10 years (predicates from a long statutory list — murder, kidnapping, gambling, arson, bribery, extortion, drug trafficking, mail/wire fraud, etc.). Continuity plus relationship required (H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989)).
3. Nexus to interstate or foreign commerce.
4. Defendant conducted or participated in the conduct of the enterprise’s affairs through the pattern.

Civil RICO, 18 U.S.C. § 1964(c), permits private actions for treble damages plus attorney’s fees — wielded broadly in commercial disputes.

5.4 Insider Trading

Built on Rule 10b-5 and the misappropriation theory of United States v. O’Hagan, 521 U.S. 642 (1997). Key insider-trading cases:

• Galleon Group — Raj Rajaratnam convicted 2011 (14 counts; 11-year sentence; later commuted to 7.5 years).
• SAC Capital — Steven Cohen’s firm paid $1.8 billion in settlements (2013); SAC pleaded guilty.
• Martha Stewart — convicted 2004 of obstruction and false statements (not insider trading itself) related to ImClone stock; five months.
• Sam Bankman-Fried / FTX — November 2023 jury verdict on 7 counts (wire fraud, conspiracy, money laundering); March 2024 sentenced to 25 years; ordered to forfeit $11 billion; the largest financial fraud collapse since Madoff.
• Bernie Madoff — 2009 plea, 150-year sentence, $65 billion notional Ponzi scheme.

5.5 Foreign Corrupt Practices Act

15 U.S.C. §§ 78dd-1, et seq. (1977) — prohibits payments to foreign officials to obtain or retain business; books-and-records and internal-controls provisions. Major settlements: Siemens ($800M,2008),Petrobras($853M, 2018), Goldman Sachs (1MDB, $2.9B, 2020).

6. Inchoate Crimes

6.1 Attempt

Two elements:

1. Specific intent to commit the target offense.
2. A substantial step (MPC) or act beyond mere preparation (common-law approaches: last act, dangerous proximity, indispensable element, probable distance).

Abandonment is a defense in MPC jurisdictions if voluntary and complete (MPC § 5.01(4)); generally not a common-law defense once the substantial step is taken.

Legal impossibility is sometimes a defense (acts that, if completed, would not be a crime); factual impossibility generally is not (acts that fail because of circumstances unknown to the defendant — picking an empty pocket).

6.2 Solicitation

Asking, encouraging, or inducing another to commit a crime, with intent that the offense be committed. Merges into completed offense if successful.

6.3 Conspiracy

Common law: agreement between two or more to commit an unlawful act, with specific intent to enter the agreement and to achieve the objective. Federal and most modern statutes: also require an overt act in furtherance (18 U.S.C. § 371). MPC § 5.03 adopts unilateral conspiracy — only one party need actually agree.

• Pinkerton liability — Pinkerton v. United States, 328 U.S. 640 (1946) — each co-conspirator is liable for the foreseeable substantive crimes of co-conspirators committed in furtherance of the conspiracy. Rejected by MPC.
• Wharton’s Rule — no conspiracy where the offense by definition requires more than one participant (bigamy, dueling, adultery).

6.4 Accomplice Liability

Aiding and abetting, 18 U.S.C. § 2 — one who aids, abets, counsels, commands, induces, or procures commission of an offense is punishable as a principal. Requires (i) the underlying offense be committed and (ii) the defendant intend to assist in its commission. Rosemond v. United States, 572 U.S. 65 (2014) — aiding 18 U.S.C. § 924(c) requires advance knowledge that confederate would carry firearm.

Common-law parties: principal in the first degree, principal in the second degree (present and assisting), accessory before the fact, accessory after the fact. Modern statutes typically treat all except accessory-after-the-fact as principals; accessory after the fact remains a lesser offense (obstruction-like).

7. Defenses

Defenses fall into two broad classes: justifications (act is legally permissible) and excuses (defendant is not blameworthy notwithstanding wrongful act).

7.1 Justifications

• Self-defense — reasonable belief in imminent unlawful force; proportional response. Deadly force only against deadly force or threat of great bodily harm. Duty to retreat before deadly force in retreat jurisdictions, except in one’s home (castle doctrine) and (in stand-your-ground jurisdictions, Florida 2005 first; over 30 states have adopted some form) in any place lawfully present. The 2012 killing of Trayvon Martin and acquittal of George Zimmerman fueled national debate over stand-your-ground laws.
• Defense of others — protect another from imminent unlawful force; reasonable mistake generally permitted (MPC; majority).
• Defense of property — non-deadly force to protect property; deadly force only against threats to person or to prevent forcible felonies (varies). Katko v. Briney (spring gun, civil case) is the classic illustration.
• Necessity (choice of evils) — MPC § 3.02 — conduct necessary to avoid imminent harm greater than the harm sought to be prevented by the law. Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) — shipwrecked sailors who killed and ate cabin boy — necessity rejected as defense to murder; the classic limit.
• Law enforcement / arrest — privilege to use reasonable force to make lawful arrest; deadly force limited to prevent escape of dangerous felon (Tennessee v. Garner, 471 U.S. 1 (1985), Fourth Amendment limits on use of deadly force; Graham v. Connor, 490 U.S. 386 (1989), objective-reasonableness standard).

7.2 Excuses

• Insanity — competing tests:
  • M’Naghten (1843, M’Naghten’s Case, 10 Cl. & F. 200) — at time of act, due to disease of mind, defendant did not know nature and quality of act or did not know it was wrong.
    • Cognitive test only; no volitional prong.
    • Majority rule in U.S.
  • Irresistible impulse — supplements M’Naghten; defendant unable to control conduct.
  • Durham (product) test — Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) — act product of mental disease. Abandoned even in D.C. Circuit (United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972)).
  • MPC substantial capacity — § 4.01 — defendant lacks substantial capacity either to appreciate criminality (wrongfulness) of conduct or to conform conduct to the requirements of law. Cognitive plus volitional. Adopted by many states and federal courts post-1962.
  • Federal Insanity Defense Reform Act of 1984, 18 U.S.C. § 17 — narrowed federal insanity defense after United States v. Hinckley (1982 acquittal in attempted assassination of President Reagan).
    • Requires severe mental disease or defect and inability to appreciate the nature and quality or the wrongfulness of acts.
    • Eliminates volitional prong.
    • Places burden of proof on defendant by clear and convincing evidence.
  • Kahler v. Kansas, 589 U.S. 271 (2020) — Due Process does not require states to adopt an insanity defense framed in moral-incapacity terms; states may abolish insanity defense provided some mens-rea-related framework remains.
  • Four states (Idaho, Kansas, Montana, Utah) have effectively abolished the affirmative insanity defense; defendant may still introduce mental-illness evidence to negate mens rea.
  • Verdict alternatives: NGRI (not guilty by reason of insanity — civil commitment likely follows); GBMI (guilty but mentally ill — incarceration with treatment; many states).
• Diminished capacity — mental condition short of insanity that negates required mens rea.
  • Available in some jurisdictions to negate specific intent.
  • California’s People v. Wolff, 394 P.2d 959 (Cal. 1964), and its progeny defined the doctrine; abolished by ballot initiative (Prop. 8, 1982).
• Intoxication —
  • Voluntary intoxication generally not a defense to general-intent crimes.
  • May negate specific intent in many jurisdictions.
  • Involuntary intoxication treated like insanity.
  • Montana v. Egelhoff, 518 U.S. 37 (1996) — state may exclude voluntary-intoxication evidence even when relevant to mens rea (5-4).
• Duress —
  • Threat of imminent death or serious bodily harm to defendant or another.
  • No reasonable opportunity to escape.
  • Generally not a defense to homicide.
  • MPC § 2.09 broader; “person of reasonable firmness” standard.
• Mistake of fact — negates mens rea if it does so.
  • Reasonable mistake usually required for general intent.
  • Any honest mistake for specific intent.
  • For strict-liability offenses, no mistake defense.
• Mistake of law — generally not a defense (“ignorance of the law is no excuse”). Exceptions:
  • Official statement of law by authority later overturned (Model Penal Code § 2.04(3)).
  • Statutes requiring knowledge of unlawfulness (Cheek v. United States, 498 U.S. 192 (1991), tax cases; Ratzlaf v. United States, 510 U.S. 135 (1994), structuring).
  • Due-process limit where statute is unknowable (Lambert v. California, 355 U.S. 225 (1957) — felon-registration ordinance).
• Infancy —
  • Common law: under 7 absolute defense; 7–14 rebuttable; over 14 adult.
  • Modern juvenile justice systems handle by jurisdiction.
  • Transfer / waiver to adult court for serious offenses (judicial waiver, prosecutorial direct file, statutory exclusion).
  • Recent reform direction: raising age of adult jurisdiction (NY 18 by 2019, NC 18 by 2019).
• Entrapment —
  • Subjective test (federal; Sherman v. United States, 356 U.S. 369 (1958)) — government inducement plus lack of predisposition.
  • Objective test (some states; MPC § 2.13) — focus on government conduct regardless of defendant’s predisposition.
  • Jacobson v. United States, 503 U.S. 540 (1992) — required predisposition before government contact; conviction reversed where government created the predisposition.
• Public authority / mistake of authority — reliance on apparent authority of law-enforcement officer.
• Withdrawal — affirmative defense to conspiracy and accomplice liability; requires full and voluntary renunciation plus communication to confederates or thwarting of the offense.

8. Federal Criminal Law Overview

• Title 18 U.S.C. — general federal criminal code.
• Title 21 U.S.C. — Controlled Substances Act (CSA, 1970), drug schedules I–V; possession, distribution, manufacturing offenses; conspiracy under § 846.
• Title 26 U.S.C. — federal tax crimes (evasion § 7201, failure to file § 7203, fraud § 7206).
• Title 31 U.S.C. — Bank Secrecy Act (currency reporting, structuring).
• Title 50 U.S.C. — espionage, FISA.
• Sentencing: United States Sentencing Guidelines (USSC, 1987) — mandatory until United States v. Booker, 543 U.S. 220 (2005), now advisory; courts must consider but need not adhere.
• Mandatory minimums — survive Booker; recent reform via Fair Sentencing Act 2010 and First Step Act 2018 (retroactive crack-cocaine reform; § 924(c) stacking reform; expanded earned-time credits).

Part II — Criminal Procedure

9. The Fourth Amendment

“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…”

Applied to the states through the Fourteenth Amendment (Wolf v. Colorado, 338 U.S. 25 (1949), incorporating substance; Mapp v. Ohio, 367 U.S. 643 (1961), incorporating exclusionary remedy).

9.1 The Two-Prong Analytical Frame

A Fourth Amendment claim requires:

1. State action that constitutes a search or seizure.
   • Search — government intrusion into an area in which the defendant has a reasonable expectation of privacy (Katz v. United States, 389 U.S. 347 (1967), Harlan, J., concurring) or a physical trespass on a constitutionally protected area for the purpose of obtaining information (United States v. Jones, 565 U.S. 400 (2012) — GPS attached to vehicle).
   • Seizure of person — when a reasonable person would not feel free to leave (United States v. Mendenhall, 446 U.S. 544 (1980)) or when physical force or submission to authority occurs (California v. Hodari D., 499 U.S. 621 (1991)).
2. Reasonableness — typically requires probable cause + warrant, unless one of the established exceptions applies.

9.2 Probable Cause and Warrants

• Probable cause — fair probability that contraband or evidence will be found in the place to be searched (search) or that the suspect committed the offense (arrest). Illinois v. Gates, 462 U.S. 213 (1983) — totality-of-circumstances test replacing Aguilar-Spinelli two-pronged test.
• Warrant requirements — neutral magistrate, oath/affirmation, particularity (place and items).

9.3 Warrant Exceptions

• Consent — voluntary, by person with authority.
  • Schneckloth v. Bustamonte, 412 U.S. 218 (1973) — voluntariness from totality of circumstances; knowledge of right to refuse not required.
  • Illinois v. Rodriguez, 497 U.S. 177 (1990) — apparent authority.
  • Georgia v. Randolph, 547 U.S. 103 (2006) — physically present co-tenant may veto.
  • Fernandez v. California, 571 U.S. 292 (2014) — objecting co-tenant’s removal opens door to consenting co-tenant’s consent.
• Search incident to lawful arrest (SILA):
  • Chimel v. California, 395 U.S. 752 (1969) — arrestee’s person and immediate area (wingspan).
  • United States v. Robinson, 414 U.S. 218 (1973) — full search of arrestee’s person on traffic arrest.
  • Arizona v. Gant, 556 U.S. 332 (2009) — narrowed vehicle-SILA to (i) arrestee within reaching distance of passenger compartment or (ii) reasonable belief evidence of arrest offense in vehicle.
  • Riley v. California, 573 U.S. 373 (2014) — warrant required to search digital contents of cell phone seized incident to arrest.
• Automobile exception — Carroll v. United States, 267 U.S. 132 (1925).
  • Probable cause to believe vehicle contains contraband permits warrantless search of the vehicle and any container therein that may hold the object of the search (California v. Acevedo, 500 U.S. 565 (1991)).
  • Collins v. Virginia, 584 U.S. 586 (2018) — automobile exception does not extend to vehicle parked within curtilage of home.
• Exigent circumstances — hot pursuit, imminent destruction of evidence, emergency aid.
  • Brigham City v. Stuart, 547 U.S. 398 (2006) — emergency aid.
  • Kentucky v. King, 563 U.S. 452 (2011) — police-created exigency permitted unless police violated Fourth Amendment.
  • Lange v. California, 594 U.S. 295 (2021) — pursuit of fleeing misdemeanant does not categorically justify warrantless home entry.
• Plain view — officer lawfully present, item’s incriminating nature immediately apparent, lawful access to seize (Coolidge v. New Hampshire, 403 U.S. 443 (1971); Horton v. California, 496 U.S. 128 (1990)).
• Terry stop and frisk — Terry v. Ohio, 392 U.S. 1 (1968).
  • Reasonable articulable suspicion of criminal activity permits brief investigative detention.
  • Reasonable articulable suspicion of danger permits limited pat-down for weapons.
  • Illinois v. Wardlow, 528 U.S. 119 (2000) — flight in high-crime area contributed to reasonable suspicion.
  • Rodriguez v. United States, 575 U.S. 348 (2015) — traffic stop may not be prolonged beyond the time needed to address the violation, absent independent reasonable suspicion.
• Inventory — Colorado v. Bertine, 479 U.S. 367 (1987) — routine inventory of impounded vehicle under standardized policy.
• Administrative searches — closely regulated industries (firearms, junkyards, mines, liquor); special needs beyond ordinary law enforcement; programmatic.
• Border searches — routine searches at international border or functional equivalent without suspicion (United States v. Flores-Montano, 541 U.S. 149 (2004)).
• Special needs:
  • Drug testing of student athletes (Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)).
  • Public school searches (New Jersey v. T.L.O., 469 U.S. 325 (1985), reasonable suspicion).
  • Probationer / parolee searches (Samson v. California, 547 U.S. 843 (2006)).
• Checkpoint — sobriety (Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990)) and immigration (United States v. Martinez-Fuerte, 428 U.S. 543 (1976)), but not general crime control (City of Indianapolis v. Edmond, 531 U.S. 32 (2000)).

9.4 Digital and Surveillance Cases

• GPS tracking — United States v. Jones, 565 U.S. 400 (2012) (trespass-based).
• Cell-site location information (CSLI) — Carpenter v. United States, 585 U.S. ___ (2018), 138 S. Ct. 2206 — warrant required for 7+ days of historical CSLI; third-party doctrine does not extend.
• Cell phone searches incident to arrest — Riley v. California, 573 U.S. 373 (2014) — warrant required.
• Thermal imaging of home — Kyllo v. United States, 533 U.S. 27 (2001) — warrant required for non-public technology revealing information about interior.
• Aerial surveillance — generally permissible without warrant (California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989)).
• Drug-sniffing dogs — Illinois v. Caballes, 543 U.S. 405 (2005), during lawful stop OK; Florida v. Jardines, 569 U.S. 1 (2013), at front porch a search.

9.5 The Exclusionary Rule

• Weeks v. United States, 232 U.S. 383 (1914) — federal exclusionary rule.
• Mapp v. Ohio, 367 U.S. 643 (1961) — incorporation against states.
• Fruit of the poisonous tree — Wong Sun v. United States, 371 U.S. 471 (1963).
• Exceptions / limitations:
  • Good faith — United States v. Leon, 468 U.S. 897 (1984) — facially valid warrant later invalidated.
  • Inevitable discovery — Nix v. Williams, 467 U.S. 431 (1984).
  • Independent source — Murray v. United States, 487 U.S. 533 (1988).
  • Attenuation — Brown v. Illinois, 422 U.S. 590 (1975); Utah v. Strieff, 579 U.S. 232 (2016) (intervening discovery of warrant).
  • Impeachment — illegally obtained statements may be used to impeach defendant’s testimony.
  • Standing — defendant must have legitimate expectation of privacy; cannot vicariously assert.

10. The Fifth Amendment

No person “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.”

10.1 Self-Incrimination and Miranda

• Miranda warnings — Miranda v. Arizona, 384 U.S. 436 (1966) — custodial interrogation requires warnings:
  • Right to remain silent.
  • Statements may be used against the suspect.
  • Right to consult counsel before and during interrogation.
  • Right to appointed counsel if indigent.
• Custody — formal arrest or restraint to that degree; objective from suspect’s view.
  • Traffic stops not custody (Berkemer v. McCarty, 468 U.S. 420 (1984)).
  • J.D.B. v. North Carolina, 564 U.S. 261 (2011) — age relevant to custody analysis.
  • Howes v. Fields, 565 U.S. 499 (2012) — prison interrogation not per se custodial.
• Interrogation — express questioning or its functional equivalent.
  • Words or actions reasonably likely to elicit incriminating response (Rhode Island v. Innis, 446 U.S. 291 (1980)).
  • Routine booking questions exempted (Pennsylvania v. Muniz, 496 U.S. 582 (1990)).
• Invocation:
  • Davis v. United States, 512 U.S. 452 (1994) — unambiguous invocation of right to counsel required.
  • Berghuis v. Thompkins, 560 U.S. 370 (2010) — invocation of right to silence must be unambiguous.
  • Edwards v. Arizona, 451 U.S. 477 (1981) — once counsel invoked, no further interrogation without counsel.
  • Maryland v. Shatzer, 559 U.S. 98 (2010) — 14-day break in custody dissolves Edwards.
• Waiver — knowing, intelligent, voluntary.
• Salinas v. Texas, 570 U.S. 178 (2013) — pre-arrest, pre-Miranda silence may be used substantively unless privilege is expressly invoked.
• Public-safety exception — New York v. Quarles, 467 U.S. 649 (1984) — police may ask brief questions to neutralize immediate danger without Miranda.
• Two-step interrogation — Missouri v. Seibert, 542 U.S. 600 (2004) — deliberate two-step (un-Mirandized then Mirandized) violates Miranda.
• Remedy — un-Mirandized statements inadmissible in case-in-chief; admissible for impeachment (Harris v. New York, 401 U.S. 222 (1971)).
• Vega v. Tekoh, 597 U.S. 134 (2022) — no Section 1983 cause of action for Miranda violation standing alone.

10.2 Voluntariness of Confessions

A separate due-process inquiry surviving Miranda. Brown v. Mississippi, 297 U.S. 278 (1936); Arizona v. Fulminante, 499 U.S. 279 (1991).

10.3 Double Jeopardy

Prohibits multiple prosecutions or punishments for the same offense. Same offense measured by the Blockburger v. United States, 284 U.S. 299 (1932), same-elements test: distinct offenses if each requires proof of an element the other does not. Dual-sovereignty doctrine — separate sovereigns (federal and state, two states) may each prosecute (Gamble v. United States, 587 U.S. ___ (2019)).

10.4 Due Process

• Procedural due process — notice, opportunity to be heard, neutral decision-maker.
• Substantive due process — fundamental fairness.
• Grand jury — Fifth Amendment requires grand jury indictment for federal felonies; not incorporated to states (Hurtado v. California, 110 U.S. 516 (1884)).
• Brady disclosure — Brady v. Maryland, 373 U.S. 83 (1963) — prosecution must disclose material exculpatory evidence; extended to impeachment evidence (Giglio v. United States, 405 U.S. 150 (1972)). Knowledge imputed across prosecution team (Kyles v. Whitley, 514 U.S. 419 (1995)).

11. The Sixth Amendment

“…the accused shall enjoy the right to a speedy and public trial, by an impartial jury… 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.”

11.1 Right to Counsel

• Gideon v. Wainwright, 372 U.S. 335 (1963) — incorporated; states must provide counsel to indigent felony defendants.
• Argersinger v. Hamlin, 407 U.S. 25 (1972) — extended to misdemeanors carrying actual imprisonment.
• Scott v. Illinois, 440 U.S. 367 (1979) — limit to cases where defendant is actually sentenced to imprisonment.
• Alabama v. Shelton, 535 U.S. 654 (2002) — applies to suspended sentences.
• Rothgery v. Gillespie County, 554 U.S. 191 (2008) — right attaches at first formal proceeding (initial appearance).
• Montejo v. Louisiana, 556 U.S. 778 (2009) — overruled Michigan v. Jackson; police may approach represented defendant in non-Miranda setting.
• Effective assistance — Strickland v. Washington, 466 U.S. 668 (1984) — two-prong test:
  • (i) Deficient performance falling below objective standard of reasonableness.
  • (ii) Prejudice — reasonable probability that, but for deficient performance, result would have been different.
  • Demanding standard; high deference to counsel’s strategic choices.
• Categorical structural error — denial of counsel altogether, conflict of interest, denial of counsel of choice.
• Conflicts of interest — Cuyler v. Sullivan, 446 U.S. 335 (1980) — adverse effect from actual conflict.
• Right to counsel of choice — United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) — wrongful denial structural error not subject to harmless error review.
• Plea-bargain context — Lafler v. Cooper, 566 U.S. 156 (2012); Missouri v. Frye, 566 U.S. 134 (2012) — right to effective assistance during plea negotiation.
• Padilla v. Kentucky, 559 U.S. 356 (2010) — counsel must advise non-citizen client of immigration consequences of plea.
• Self-representation — Faretta v. California, 422 U.S. 806 (1975); knowing, voluntary waiver of counsel. Indiana v. Edwards, 554 U.S. 164 (2008) — court may insist on counsel for defendant competent to stand trial but not to represent self.

11.2 Speedy Trial

• Barker v. Wingo, 407 U.S. 514 (1972) — four-factor balancing: length of delay, reason, defendant’s assertion, prejudice.
• Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–3174 — federal statutory 70-day clock from indictment/appearance, excluding specified periods.

11.3 Jury Trial

• Right to jury trial in criminal — Duncan v. Louisiana, 391 U.S. 145 (1968) — incorporated; serious offenses (imprisonment > 6 months).
  • Petty offenses (≤6 months) — no jury-trial right; Blanton v. North Las Vegas, 489 U.S. 538 (1989).
• Size — Williams v. Florida, 399 U.S. 78 (1970) — 6 minimum.
  • Ballew v. Georgia, 435 U.S. 223 (1978) — 5 too few.
• Unanimity — Ramos v. Louisiana, 590 U.S. 83 (2020) — unanimity required in state criminal cases; overruling Apodaca v. Oregon, 406 U.S. 404 (1972).
  • Edwards v. Vannoy, 593 U.S. 255 (2021) — Ramos not retroactive on collateral review.
• Voir dire / jury selection:
  • Batson v. Kentucky, 476 U.S. 79 (1986) — peremptory challenges may not be exercised on basis of race.
  • Three-step process: (1) prima facie showing of discrimination; (2) race-neutral explanation; (3) trial court determines whether explanation is pretextual.
  • Extended to civil (Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)).
  • Extended to defense (Georgia v. McCollum, 505 U.S. 42 (1992)).
  • Extended to gender (J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)).
  • Sexual orientation circuit split.
  • Flowers v. Mississippi, 588 U.S. 284 (2019) — pattern of Batson violations across retrials of same defendant.
• Cross-section — Taylor v. Louisiana, 419 U.S. 522 (1975) — fair cross-section requirement for venire (jury pool, not actual jury).
• Death qualification — Witherspoon v. Illinois, 391 U.S. 510 (1968); Wainwright v. Witt, 469 U.S. 412 (1985) — jurors substantially impaired by views on death penalty may be excluded.

11.4 Confrontation Clause

• Crawford v. Washington, 541 U.S. 36 (2004) — testimonial hearsay barred unless declarant unavailable and prior cross-examination opportunity. Replaced Ohio v. Roberts reliability test.
• Testimonial — formal statements made for use at trial, statements during police interrogation absent ongoing emergency, affidavits, depositions.
• Davis v. Washington, 547 U.S. 813 (2006) — 911 calls during ongoing emergency non-testimonial.
• Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) — forensic affidavits testimonial.
• Bullcoming v. New Mexico, 564 U.S. 647 (2011) — surrogate lab analyst insufficient.

11.5 Compulsory Process

Right to subpoena and present defense witnesses; rule-of-evidence limits may be unconstitutional as applied (Chambers v. Mississippi, 410 U.S. 284 (1973); Holmes v. South Carolina, 547 U.S. 319 (2006)).

12. The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

12.1 Death Penalty

• Furman v. Georgia, 408 U.S. 238 (1972) — invalidated existing death-penalty statutes for arbitrariness (5-4 with five separate concurrences).
• Gregg v. Georgia, 428 U.S. 153 (1976) — reinstated under guided-discretion statutes; bifurcated trial, aggravating and mitigating circumstances, appellate review.
• Required findings:
  • Lockett v. Ohio, 438 U.S. 586 (1978) — sentencer must consider all mitigating evidence.
  • Ring v. Arizona, 536 U.S. 584 (2002) — jury (not judge) must find aggravating circumstances.
  • Hurst v. Florida, 577 U.S. 92 (2016) — applied to Florida hybrid scheme.
• Categorical exclusions:
  • Intellectually disabled — Atkins v. Virginia, 536 U.S. 304 (2002); Hall v. Florida, 572 U.S. 701 (2014); Moore v. Texas, 581 U.S. 1 (2017).
  • Juveniles under 18 at offense — Roper v. Simmons, 543 U.S. 551 (2005), overruling Stanford v. Kentucky, 492 U.S. 361 (1989).
  • Non-homicide crimes — Coker v. Georgia, 433 U.S. 584 (1977) (rape of adult); Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of child); Enmund v. Florida, 458 U.S. 782 (1982) (non-trigger felony-murder accomplice not in major participation).
• Methods — Baze v. Rees, 553 U.S. 35 (2008); Glossip v. Gross, 576 U.S. 863 (2015); Bucklew v. Precythe, 587 U.S. 119 (2019).
• Current landscape (2026):
  • 23 states have abolished the death penalty.
  • Several governors have imposed moratoria (California, Pennsylvania, Oregon).
  • Federal death penalty paused by DOJ moratorium 2021; status under review.
  • Number of executions has declined from a peak of 98 (1999) to single digits in recent years.

12.2 Non-Capital Proportionality

Narrow review under Solem v. Helm, 463 U.S. 277 (1983), and Harmelin v. Michigan, 501 U.S. 957 (1991). Three-strikes laws upheld (Ewing v. California, 538 U.S. 11 (2003); Lockyer v. Andrade, 538 U.S. 63 (2003)).

12.3 Juvenile Sentencing

• Graham v. Florida, 560 U.S. 48 (2010) — life without parole barred for juveniles non-homicide.
• Miller v. Alabama, 567 U.S. 460 (2012) — mandatory LWOP barred for juvenile homicide.
• Montgomery v. Louisiana, 577 U.S. 190 (2016) — Miller retroactive.
• Jones v. Mississippi, 593 U.S. ___ (2021) — no separate finding of permanent incorrigibility required.

12.4 Excessive Fines

Timbs v. Indiana, 586 U.S. 146 (2019) — Excessive Fines Clause incorporated against states; civil forfeiture covered.

13. Fourteenth Amendment / Equal Protection in Criminal Justice

• Selective prosecution — United States v. Armstrong, 517 U.S. 456 (1996) — discriminatory effect and discriminatory intent required.
• Batson and progeny — peremptory challenges based on race, gender, ethnicity unconstitutional. Sexual orientation circuit-split.
• Stop-and-frisk litigation — Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) — NYPD policy unconstitutional.

14. Federal vs. State Criminal Practice

• Federal investigators: FBI, DEA, ATF, ICE/HSI, USSS, IRS-CI, USPS Inspection Service, OIG offices.
• Federal prosecutors: U.S. Attorneys (94 districts), Main Justice (Criminal Division, Tax Division, Antitrust Division, National Security Division, Civil Rights Division, ENRD).
• State prosecution: county/district attorneys (over 2,000 nationally) and state attorneys general.
• Concurrent jurisdiction — many offenses prosecutable by either; charging discretion.
• Petite policy — DOJ internal limits on successive federal prosecution after state.
• No MDL in criminal; multi-defendant cases proceed through joinder (Fed. R. Crim. P. 8) and severance (Rule 14).

15. Charging, Plea, and Trial

• Charging — complaint, information (post-preliminary hearing), or indictment (grand jury).
  • Federal felonies require grand-jury indictment (Fifth Amendment); not incorporated.
  • Many states allow charging by information after preliminary hearing finding of probable cause.
• Initial appearance — without unnecessary delay (Fed. R. Crim. P. 5; state analogues).
  • County of Riverside v. McLaughlin, 500 U.S. 44 (1991) — judicial probable-cause determination within 48 hours of warrantless arrest.
• Arraignment — formal reading of charges; entry of plea.
• Bail / detention hearing.
• Bail / pretrial release:
  • Bail Reform Act of 1984, 18 U.S.C. § 3142 — federal preventive detention upheld in United States v. Salerno, 481 U.S. 739 (1987).
  • Excessive Bail Clause (Eighth Amendment) prohibits bail higher than reasonably calculated to ensure appearance.
  • State reforms:
    • New York 2019 (significant 2020 amendments scaling back cashless bail for some offenses).
    • New Jersey 2017 (risk-based; near-elimination of cash bail).
    • Illinois Pretrial Fairness Act 2023 — first state to eliminate cash bail entirely after constitutional challenges resolved by Illinois Supreme Court (Rowe v. Raoul).
    • California debate continues; SB 10 repealed by referendum 2020.
• Discovery — Fed. R. Crim. P. 16; Jencks Act, 18 U.S.C. § 3500; Brady and Giglio obligations.
  • Open-file discovery in some jurisdictions (North Carolina, Massachusetts); narrower in others.
  • Discovery reform a major issue in recent years (NY 2019 reform).
• Plea bargaining:
  • Approximately 97% of federal felony convictions and roughly 95% of state felony convictions are by plea.
  • Santobello v. New York, 404 U.S. 257 (1971) — promises must be kept.
  • Brady v. United States, 397 U.S. 742 (1970) — plea must be voluntary, knowing, intelligent.
  • Boykin v. Alabama, 395 U.S. 238 (1969) — record must show waiver of trial rights.
  • North Carolina v. Alford, 400 U.S. 25 (1970) — defendant may plead guilty while maintaining innocence if strong factual basis.
• Trial — voir dire, opening, prosecution case, defense case, rebuttal, closings, instructions, deliberation, verdict.
  • Standard of proof: beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)).
  • Apprendi v. New Jersey, 530 U.S. 466 (2000) — any fact (other than prior conviction) that increases statutory maximum must be found by jury beyond a reasonable doubt.
  • Alleyne v. United States, 570 U.S. 99 (2013) — extends Apprendi to mandatory minimums.
• Sentencing — federal: Guidelines + statutory range + 18 U.S.C. § 3553(a) factors; state varies widely.
  • Indeterminate (parole-based) vs determinate sentencing varies by state.
  • Three-strikes laws in many states; California Prop 36 (2012) reformed.
  • First Step Act of 2018 — modest federal sentencing reform (retroactive crack-cocaine, expanded earned-time credits, § 924(c) stacking reform).
• Post-conviction:
  • Direct appeal (typically of right to intermediate appellate court).
  • State post-conviction collateral review.
  • Federal habeas (28 U.S.C. § 2254 for state prisoners, § 2255 for federal), governed by AEDPA (Antiterrorism and Effective Death Penalty Act of 1996).
    • 1-year statute of limitations; second-or-successive bar.
    • Strict deference to state-court adjudications (§ 2254(d) — contrary to or unreasonable application of clearly established federal law).
    • Shinn v. Ramirez, 596 U.S. 366 (2022) — narrowed evidentiary hearings on procedurally defaulted ineffective-assistance claims.
• Crime Victims’ Rights Act, 18 U.S.C. § 3771 — federal rights of victims to be heard, notified, present at proceedings, confer with prosecutor, restitution.

16. Major SCOTUS Criminal Cases (Selected Modern Term)

• Mapp v. Ohio, 367 U.S. 643 (1961).
• Gideon v. Wainwright, 372 U.S. 335 (1963).
• Brady v. Maryland, 373 U.S. 83 (1963).
• Miranda v. Arizona, 384 U.S. 436 (1966).
• Terry v. Ohio, 392 U.S. 1 (1968).
• Furman v. Georgia, 408 U.S. 238 (1972).
• Gregg v. Georgia, 428 U.S. 153 (1976).
• Strickland v. Washington, 466 U.S. 668 (1984).
• Batson v. Kentucky, 476 U.S. 79 (1986).
• Crawford v. Washington, 541 U.S. 36 (2004).
• Roper v. Simmons, 543 U.S. 551 (2005).
• District of Columbia v. Heller, 554 U.S. 570 (2008).
• Padilla v. Kentucky, 559 U.S. 356 (2010) — immigration consequences.
• Miller v. Alabama, 567 U.S. 460 (2012).
• Riley v. California, 573 U.S. 373 (2014).
• Carpenter v. United States, 585 U.S. ___ (2018).
• Timbs v. Indiana, 586 U.S. 146 (2019).
• Ramos v. Louisiana, 590 U.S. ___ (2020).
• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (Second Amendment).
• Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) (criminal abortion statutes now permissible).
• Counterman v. Colorado, 600 U.S. 66 (2023) (true threats — recklessness mens rea).
• United States v. Rahimi, 602 U.S. ___ (2024) (Second Amendment; domestic-violence restraining orders).

17. Wrongful Convictions and Innocence Movement

• National Registry of Exonerations — over 3,500 documented exonerations since 1989 (as of 2024–2025 reporting).
  • Average roughly 9.0 years lost per exoneree.
  • Total years lost: over 31,000 person-years.
• Leading causes:
  • Eyewitness misidentification — leading cause; especially cross-racial identifications.
  • Official misconduct — by police or prosecution; Brady violations.
  • False or coerced confessions — disproportionately involving juveniles and persons with intellectual disabilities.
  • Perjury or false accusation — including jailhouse informants.
  • Ineffective assistance of counsel — chronic underfunding of indigent defense.
  • Faulty forensics — bite-mark, hair-comparison, arson “junk science,” flawed lab work.
• DNA exonerations — over 375 (Innocence Project counts).
• Reform tools:
  • Recorded custodial interrogations (now required by statute or rule in over half the states).
  • Double-blind sequential lineups.
  • Expanded post-conviction DNA access (federal Innocence Protection Act of 2004; nearly every state has a DNA-access statute).
  • Conviction integrity units in many large prosecutors’ offices (Brooklyn, Dallas, Philadelphia, others).
  • Eyewitness identification reforms (Manson v. Brathwaite line; state supreme courts including NJ in State v. Henderson, 27 A.3d 872 (N.J. 2011), tightening admissibility).
• Compensation statutes — about 38 states + federal government provide some statutory compensation for the wrongfully convicted.
  • Federal: $50,000peryearwrongfullyimprisoned,plus$100,000 per year on death row (28 U.S.C. § 2513).
  • State amounts vary widely.

17.1 Mass Incarceration

A defining feature of US criminal justice over the last half century:

• US has roughly 5% of the world’s population and approximately 20% of its incarcerated population.
• US incarceration rate of approximately 531 per 100,000 (as of 2023) — highest in the developed world, though down from peak of 760 in 2008.
• Approximately 1.9 million people incarcerated in US prisons and jails (2023).
• Approximately 4 million on probation or parole (2023).
• Driven by:
  • War on drugs (1971+).
  • Truth-in-sentencing and mandatory minimums (1980s–1990s).
  • Three-strikes laws (1990s).
  • Tough-on-crime politics across both parties.
• Reform movement (2010s–2020s):
  • First Step Act 2018 (federal).
  • State sentencing-commission reforms (CA Prop 36, NY 2019, IL 2021).
  • Bail reform (NJ, IL, NY).
  • Marijuana legalization in 24 states.
• Racial disparities pervasive at every stage from policing through sentencing.

17.2 Forensic Science

The 2009 National Academy of Sciences report Strengthening Forensic Science in the United States documented serious weaknesses in many forensic disciplines:

• Bite-mark, hair-comparison, and shoe-print analysis lack scientific foundation.
• Arson investigation traditionally based on indicators since discredited.
• Fingerprint and tool-mark examination subject to subjective interpretation.
• DNA analysis is the gold standard but mixture interpretation and probabilistic genotyping raise issues.

PCAST 2016 follow-up report on feature-comparison methods reinforced concerns. Courts have begun excluding bite-mark testimony and other unreliable forensics.

18. Cross-Domain Connections

• torts — same conduct may give rise to both criminal prosecution and tort claim.
  • Civil RICO (18 U.S.C. § 1964) — treble damages plus attorney’s fees.
  • Wrongful Death Act parallels — O.J. Simpson civil verdict after criminal acquittal.
  • Lower civil standard (preponderance) vs. criminal standard (beyond reasonable doubt).
• contracts-and-ip — economic espionage, trade-secret theft.
  • Economic Espionage Act 1996 (18 U.S.C. §§ 1831-1839).
  • Defend Trade Secrets Act 2016 (DTSA, civil federal cause of action).
• constitutional-law — incorporation doctrine; Bill of Rights; due process; equal protection.
• security — Computer Fraud and Abuse Act (18 U.S.C. § 1030).
  • Van Buren v. United States, 593 U.S. 374 (2021) — narrowed CFAA “exceeds authorized access.”
  • Digital forensics, encryption and the Fifth Amendment (act-of-production privilege).
• regulation — securities fraud, FCPA enforcement, AML/BSA, white-collar prosecution.

19. Federal Rules of Criminal Procedure — Key Provisions

• Rule 4 — arrest warrant or summons.
• Rule 5 — initial appearance.
• Rule 6 — grand jury.
• Rule 7 — indictment and information.
• Rule 11 — pleas (guilty plea colloquy, Boykin warnings).
• Rule 12 — pretrial motions.
• Rule 16 — discovery.
• Rule 17 — subpoenas.
• Rule 23 — jury or non-jury trial.
• Rule 24 — trial jurors.
• Rule 29 — judgment of acquittal.
• Rule 32 — sentencing.
• Rule 41 — search and seizure.
• Rule 44 — right to and assignment of counsel.

20. Federal Rules of Evidence — Key Criminal Provisions

• Rule 401–403 — relevance and exclusion.
• Rule 404 — character evidence and prior bad acts.
• Rule 412 — rape shield.
• Rule 413–415 — sexual-assault and child-molestation propensity.
• Rule 609 — impeachment by prior conviction.
• Rule 702 — expert testimony (Daubert codification, amended 2023).
• Rules 801–807 — hearsay.

Adjacent

• _index — Law library map.
• torts — Civil parallel to criminal acts; same-act dual track; standards of proof.
• constitutional-law — Bill of Rights doctrine; incorporation; equal protection; due process.
• contracts-and-ip — Economic espionage, trade-secret theft, criminal IP.
• security — CFAA, digital evidence, encryption and the Fifth Amendment.
• regulation — Securities fraud, FCPA, AML/BSA criminal enforcement.