Posts categorized as "criminal law"

What is exclusive federal subject matter jurisdiction?

When we say subject matter jurisdiction we mean the power of a court to decide a certain type of case.  Federal courts in the United States have the power to decide some types of cases but they do not have subject matter jurisdiction over every type of case in the United States.

U.S. federal courts' subject matter jurisdiction comes from the Constitution and the Congress of the United States.  If you look at Article III of the U.S. Constitution you will see a list of cases in which the federal courts have subject matter jurisdiction.  These cases include, among other things, admiralty cases, patent cases, and cases between two different states (e.g., New York sues New Jersey).  

Some cases can be heard in both state and federal courts.  We can say that the federal and state courts have concurrent jurisdiction over those types of cases.

For some types of cases federal courts have exclusive federal subject matter jurisdiction - - only federal courts can decide these types of cases.  In other words, the cases cannot be heard in state court.   Some examples where federal courts have exclusive subject matter jurisdiction include the types of cases I listed above as well as bankruptcy cases and federal antitrust cases.

 When passing a law, sometimes Congress will specify that federal courts have exclusive subject matter jurisdiction.   For example, if you look at 18 USC 2338 and subsequent sections you will see that Congress established certain laws addressing terrorism and that these cases can only be heard in federal courts.



What is the castle doctrine?

In the United States, the so-called "castle doctrine" refers to state laws governing a person's use of force in self-defense when in his home (and sometimes his car).   As a general rule in the U.S. a person has a duty to retreat, if he can do so safely, before using lethal force against an attacker.  States apply the castle doctrine to allow people to use force, including lethal force, against intruders in their their homes without requiring a person to attempt to retreat first.  There is some variation from state to state in how the castle doctrine is applied.

 One common misconception is that states allow homeowners to use lethal force against anyone who merely trespasses on their property.  That's not true.  But states do generally give greater leeway to people to use force to protect themselves within their homes without imposing a duty to retreat first.

Riley v. California: Why the police need a warrant to search the cellular phone of a person under arrest

Last month, in Riley v. California, the Supreme Court decided that the police, absent exceptional circumstances, cannot constitutionally search an arrested person's cellular phone.  If you are studying US law this is a very useful decision to see how courts split on tricky issues.   The case is also helpful to understanding how courts apply precedent and create new precedent.  

The background to the case is that the police are generally allowed to conduct a warrantless search of a person who is arrested.  This is often called a "search incident to an arrest."  That is, the police can search the arrested person's pockets, things the arrested person is carrying, and immediate surroundings.  Courts agree that the police need to conduct these types of  searches to ensure their safety (an arrested person might have a concealed weapon) and to keep arrested persons from destroying evidence.  For example, in one important case, a police search of an arrested person's cigarette pack was held constitutional.

The Supreme Court explained that a warrantless search of a cellular phone is different.  First, cellular phones usually are not dangerous (unless perhaps the arrested person used the phone to contact accomplices who might want to attack the police). Second, although data on a cellular phone can be remotely destroyed, the Supreme Court believed that measures could be taken to secure the data without searching the phone.  Finally, the Supreme Court explained that cellular phones often contain large amounts of personal data, some of it dating years back.  Searching a cellular phones pictures, emails, etc. is too far reaching.  

 Below is a short video discussing the case:


What is double jeopardy?

Double jeopardy is the principle that a defendant should not be tried twice for the same crime once he is either acquitted or convicted (or pleads guilty).  

The principle applies slightly differently in the United States because of the principle of dual sovereignty.  Each state and the federal  government is a separate sovereign, therefore, it does not violate double jeopardy for different states  to try someone twice for the same underlying crime.   Similarly, a state and the federal government may put someone on trial for the same crime.  But the same state cannot try a person twice for the same crime and the federal government cannot try someone twice for the same crime after a conviction or acquittal.  

Below is a short video on how double jeopardy applies in the United States.




What does it mean to be indicted for a crime? Is the defendant guilty?

An indictment just means that a person was charged with a crime.  The defendant is not guilty, but he was accused of committing the crime.

One special characteristic of the United States is that in federal courts and often in state courts a "grand jury" indicts the defendant.  A grand jury is a large jury, 16-23 persons, which reviews the evidence presented by the prosecutor and determines whether there is at least enough evidence to accuse the defendant of committing the crime.  Grand juries are intended to, among other things, act as a shield against meritless prosecutions.  Not all states use the grand jury system and some states only use grand juries for certain crimes.  

If the grand jury agrees that there is enough evidence the foreperson of the grand jury will sign the document with the accusations against the defendant.  We would say that the grand jury has indicted the defendant. 

Below is a short video on grand juries.



What is a strict liability crime?

A strict liability crime is where the prosecutor does not have to prove that a defendant acted with a culpable mental state.

For most crimes a prosecutor has to prove at least two things. First, that the defendant committed a voluntary act.  Second, that the defendant acted with a culpable mental state.  Culpable mental states are usually intentionally, knowingly, recklessly, and sometimes negligently.  

For example,  let's say a state passes a law making it illegal for anyone to take property if he knows that the property belongs to someone else.  

Now let's say David takes Victor's phone.

To convict David, the prosecutor will have to prove that David knew that the phone belonged to someone else.   

Strict liability crimes are different.  Strict liability crimes do not require the prosecutor to prove that the defendant acted with a culpable mental state.  For example, if a state makes it illegal to drive while drunk, the prosecutor will only have to prove that the defendant committed the voluntary act of driving the car while he was drunk.  The prosecutor does not have to prove that the defendant intended to drive drunk or knowingly drove while he was drunk. 

Below is a short video on strict liability crimes.


What is extraterritorial prosecution?

The term is a bit confusing.   Usually when people refer to extraterritorial prosecution they mean cases where a court in a defendant's home country prosecutes the defendant for crimes he committed in another country.  The defendant is prosecuted at home, so the prosecution is really not extraterritorial, but the crime was committed outside of the country's territorial jurisdiction.  For example, let's say David from country A commits a crime in country B and is prosecuted for the crime back in country A - - that is usually what people mean when they say extraterritorial prosecution.

In the United States federal laws usually don't apply to activity committed in other countries.  If a US national commits a crime overseas and the crime has no connection to the United States, it is very likely that federal law will not apply to his actions and he cannot be extraterritorially prosecuted back in the US.  But there are exceptions.



What is proof beyond a reasonable doubt?

In a criminal case in the United States the government must prove its case "beyond a reasonable doubt."   Even if a juror is confident that a defendant is probably guilty, he must vote to acquit if there is a reasonable doubt.  A defendant usually does not have to prove anything (there can be some exceptions where a defendant raises an affirmative defense, such as self-defense).  

Judges at trials are responsible for explaining to jurors what it mean for the state to prove guilt beyond a reasonable doubt, however,  there is no single definition.  You can see examples of such instructions online by searching for different state's "pattern jury instructions." (e.g.,

One way to explain the standard is to tell jurors that a reasonable doubt is an actual - - not an imaginary doubt - - that a reasonable person would have based on evidence.  

Obviously we can doubt anything - - maybe the computer screen you are looking at now does not really exist.  But doubting the existence of your computer screen would be unreasonable based on all the evidence available to you.  If based on the evidence a reasonable person would doubt that the state has proven its case, then the jury must vote to acquit.  

Some courts explain the standard as proof "that is so convincing a person would rely on it without hesitation" or proof that is sufficient to make the juror "firmly convinced" of the defendant's guilt.  

Although there is no single definition, this does not mean that any definition is permissible.  If a judge provides an incorrect instruction to the jury and the jury convicts the defendant, the conviction could be overturned on appeal.



Plea Agreements: Why there are few criminal trials in the US

In the United States very few criminal cases go to trial.  In fact, I think it is fair to say that if every person in the United States demanded his right to a trial our criminal justice system would have a serious challenge.

Most people are aware that in the US a person has the option of pleading guilty or not guilty to the crime with which  he is charged.  The defendant is usually hoping for better treatment from the judge if he pleads guilty.

Typically in the US there is a period of negotiation between the prosecutor and the defendant (and the defendant's lawyer) in which the prosecutor will try to reach an agreement with the defendant to convince him to plead guilty.  These agreements are called plea agreements or plea bargains.

Often a defendant will agree to plead guilty to lesser or fewer charges.  For example, a defendant charged with robbery might agree to plead guilty to attempted robbery.  In other situations a suspect might agree to testify for the state.  In exchange, he might avoid prosecution or he might enter a plea agreement in which the prosecutor will recommend that the judge show leniency in sentencing (punishing).

Before a judge will accept a guilty plea the judge should make sure that the defendant understands that he is waiving his right to a trial.  Below is a video briefly discussing plea agreements.









How is it possible that the State of Colorado legalized marijuana but federal law criminalizes marijuana?

I received a number of questions from people who heard that Colorado legalized some use of marijuana.

Yes, it is a somewhat unusual situation.  Federal law criminalizes buying, selling, and possessing marijuana but Colorado just legalized buying, selling and possessing limited quantities of marijuana.  And you probably learned that when there is a conflict, federal law trumps state law.  So how can Colorado do this?  

For two reasons the situation in Colorado might not be a problem:

First, perhaps there isn't really a conflict between federal and state law.  Keep in mind that Colorado doesn't require people to use marijuana.  If Colorado had a law that forced adults to buy marijuana that would conflict with federal law prohibiting people from buying marijuana.  The difference between federal and state law in this case is that adults who buy, possess, or sell up to one ounce of marijuana in Colorado don't have to worry about state law.

Second, the Department of Justice (the DOJ is in charge of prosecuting federal crimes) issued a memorandum which suggests that federal law enforcement does not plan to interfere with adults peacefully buying or selling marijuana.  The memorandum states that the federal government will instead prioritize only certain federal crimes involving marijuana such as where minors use marijuana and where firearms and violence are used in cultivating marijuana.   If the memorandum is accurate, adults who decide to buy or sell limited quantities of marijuana in Colorado probably don't have to worry about federal law.  There are still some complications though.  Banks which are subject to federal regulation have stated that they are nervous dealing with money connected to marijuana sales.  Here is one article about that issue.  

If more states legalize marijuana - - and that seems to be the trend - - I think that the federal government will have to reconsider federal laws against marijuana.