In states that permit the death penalty, there are often two separate phases of the trial—the guilt phase and the penalty phase.  Murder is the only crime for which someone may be sentenced to death.  A murder that is eligible for the death penalty is called a capital murder. Often, there must be certain “special circumstances” that make a particular murder eligible for the death penalty.

The first part of a capital trial is the guilt phase.  In the guilt phase, the jury (or judge) determines whether the defendant is guilty of the charged crimes.  The only question the jury may consider is whether the evidence proves beyond a reasonable doubt that the defendant committed the charged crimes.  The jury is not permitted to consider the possible sentence in the guilt phase.

If the defendant is found guilty of a crime that leaves him eligible for the death penalty, then there is a penalty phase of trial. 

During the penalty phase, the jury often hears additional evidence to help it make a decision about whether the death penalty should be imposed. 

Different, more relaxed, rules of evidence apply during the penalty phase.  The prosecution typically presents aggravating evidence.  Aggravating evidence is that which suggests that death is the appropriate penalty. 

The defense attorney typically presents mitigating evidence.  Mitigating evidence is that which suggests the defendant does not deserve to be sentenced to death.

Factors that a jury might consider in deciding whether to impose the death penalty include:

• The circumstances of the crime
• The defendant’s mental and emotional state at the time of the crime
• Whether the defendant was legally insane or intoxicated at the time of the crime
• Whether the defendant believed the crime to be morally justified
• The defendant’s age and level of participation in the crime
• Prior felony convictions
• Other violent crimes committed by the defendant, whether he was convicted or not
• The victim’s role or participation in the murder
• Victim impact evidence (the impact of the murder on the victim’s family and friends)
• Any other extenuating circumstances
  

In California, the only two sentencing options available at the penalty phase are death or life without the possibility of parole.  Life without the possibility of parole is often called LWOP (pronounce el-wop).  A defendant sentenced to LWOP will spend the rest of his life in prison (unless his conviction is overturned).  It is considered a true life sentence.

There is a joke about why lawyers use complicated language, sometimes called legalese:
So they can charge higher fees.

There may be a little bit of truth in that, but the full answer is, well, more complicated.

One of the reasons the law is often written in complicated or hard-to-understand language is because of the way law develops.  In the United States, we use something called stare decisis.  (That's pronounced starry de-sigh-sis.)  Stare decisis means that we look at past cases to help us interpret the law today.  

This helps maintain consistency throughout time and helps lawyers and litigants predict the outcome of their own case.  Those are good goals.  But one of the downfalls of stare decisis is that words and phrases from hundreds of years ago - like stare decisis - stay with us.  

Another reason the law is so complicated is that sometimes lawyers will disagree about what a word or phrase means.  If a word or phrase or phrase can be interpreted in more than one way, more words will need to be added to make sure it is interpreted as intended.  A misinterpreted word can lead to huge unintended consequences.

A good lawyer who is writing a law or other legal document will try to think of every possible way the document could be misinterpreted in the future.  The lawyer then has to write more into the law or document to guard against these possible future misinterpretations.  As words and phrases are misinterpreted in laws and documents, over time, lawyers will include all the possible guards against all the possible misinterpretations that exist or might exist in the future.  This is how a short sentence can turn into a page-long paragraph.

A third reason the law sounds so complicated is because terms of art have developed over time.  A particular word or phrase might have a specific meaning in the law that is completely different than what it means outside the law.  

An example of this is the word "continue."  In everyday, to continue something means to keep going.  But in court, to continue something means to put it off for another day or time.  For example, a lawyer might ask to continue a hearing until the afternoon because she has a more pressing appearance scheduled in another courtroom that morning.

Or a word might not be used in everyday life, but it might have a well-known and easily understood meaning in the law.  These words and phrases are often in Latin (see "stare decisis" above).  These uses of words often provide shortcuts for lawyers, but they can make the law sound confusing and complicated to a nonlawyer.

Legal movies and television can use these words to great affect.  A memorable scene from "Legally Blonde" is a great example of this.  Elle (Reese Witherspoon) squares off against her rival in a discussion of the differences between the terms malum prohibitum (a regulatory crime) and malum in se (a dangerous crime).

Finally, another reason the law is so complicated, especially in criminal law, is because of a little thing called the Constitution.  The Due Process Clause of the Constitution requires fundamental fairness.  This means that a criminal defendant must be put on notice of possible crimes he may commit.  This, in turn, means that criminal laws cannot be vague or overbroad or they will be held unconstitutional.  Law are often written in a complicated way to try to prevent that from happening.

The Due Process requirement of fundamental fairness also means that any ambiguity in a criminal law will be interpreted in the defendant's favor.  That is called the rule of lenity (another phrase from centuries ago).

An example of the rule of lenity is found in United States v. Santos, 553 U.S. 507 (2008).  The U.S. Supreme Court discussed the possible definitions of “proceeds” in the federal money laundering statute, 18 U.S.C. § 1956.  Specifically, the Court discussed whether "proceeds" covers criminal receipts or profits.  The Court stated:

So, if Congress wanted to include both receipts and profits in its definition of proceeds, it would have to amend the law to include those specific terms.  And the law just got more complicated.

The next time you hear someone ask why the law is so complicated, you can give a lawyer's favorite answer to any legal question:  It depends.

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Although it is an older movie, "Presumed Innocent," starring Harrison Ford, is educational and can be used to teach many legal lessons.  It can be effectively used as part of a legal ethics or criminal law and procedure class. 

The basic premise of the movie is that Harrison Ford's character, Rusty Sabich, is an assistant district attorney who is accused of murdering his colleague and lover.  His boss, the elected district attorney, played by Brian Dennehy, assigns Rusty to handle the investigation into Carolyn Polhemus' death (played by Greta Scacchi).  Along the way, he hides his relationship with her, destroys evidence, learns that the boss was also sleeping with her, and winds up accused of murder. 

Right away, there is a conflict of interest.  Probably the District Attorney's Office handling the investigation at all would be a conflict, especially in a smaller office like the one depicted in the movie.  Normally, such a case would be handled by the state Attorney General's Office.  Rusty has an even greater conflict than Carolyn's other colleagues because he had an illicit affair with her.  Rusty does not disclose his affair to his boss (even when the boss confides his own affair to Rusty), which creates a greater appearance of impropriety.

The movie does a good job of showing the different roles and obligations of prosecutors and defense attorneys.  The main character is a prosecutor who is charged with a crime.  The movie shows his interactions with his hired defense attorney, played by Raul Julia.  It shows advice given by the defense attorney to his client, like pleading the Fifth in the grand jury, even though his client may not want to take it.  It also explains why he should do so even though it will make him look guilty - you don't want to give the prosecution pre-trial statements to use against you.  The movie also shows strategic decisions made by the defense attorney along the way.

There is a part in the movie where the prosecutor wants to put in evidence statements that Rusty made to him.  The judge correctly rules that the the prosecutor will not be permitted to testify in the case unless he steps down as prosecutor and lets someone else take over the case.  This points to a key mistake that many books, TV shows, and movies make, which is having the attorney investigate crimes and question witnesses alone.  That's what investigators are for.  (Learn more about this in my free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.)

"Presumed Innocent" also shows the practical reality that sometimes things outside the courtroom can make all the difference in the outcome of a case.  (SPOILER ALERT)  In that case it was the defense attorney's knowledge of the trial judge's past unethical behavior that gave the defense an edge. 

The movie can be used as a good example of how to show probable cause to get a search warrant.  In the movie, the police had Rusty's fingerprints on a glass in Carolyn's apartment, phone records showed many calls between Rusty and Carolyn, including one call the night of the murder, Rusty's blood type matched semen found inside the victim (the book and movie were pre-DNA), and unknown carpet fibers were found in the victim's apartment. 

NOTE, however, that the police in the movie choose not to search for a murder weapon.  In reality, the police will always search for a murder weapon at the home of their primary suspect.  (The reason this is done in the movie is because a twist at the end revolves around discovery of the murder weapon.)

Finally, there are two incidents in the movie where Rusty destroys evidence.  That is obviously a big no-no -- for an attorney or anyone else. 

This is one of the few examples of a movie that gets most of the legal stuff right.  (It would probably be my second choice of an accurate legal film after My Cousin Vinny.)  It is also a compelling story that stands up to the test of time.  The book upon which the movie is based, also called "Presumed Innocent" by Scott Turrow, is excellent as well.  (Click below to check out the movies or book.)

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A recent Grey's Anatomy episode, "Sorry Seems to Be the Hardest Word" (season 10, episode 9), made it clear that the show should stick to medicine and stay out of the courtroom.  Or at least hire a legal consultant when a storyline turns legal.

In the episode, Calley went to trial in a medical malpractice case.  The mistakes throughout the episode were many and cringeworthy. 

To start with, a period of four months supposedly passed between the time of the act of malpractice (a hip replacement surgery that ended with both legs amputated from an Olympic snowboarded) to the time of trial.  Four months!  Anyone who has had even the slightest interaction with America's court systems knows that nothing moves that quickly.  Least of all a civil lawsuit involving detailed medical information that goes to a jury trial.  Four years would be slightly more realistic.

But, I understand there are more important time needs in the story, so I'll move on.  An even more flagrant problem, and one that had no requirement in teh story, was the confusion between a civil lawsuit, which this was, and a criminal prosecution, which this wasn't.  The writers do not seem to understand something very basic that most Americans should know about their legal system.

There are two completely separate and different legal systems in our country.  Civil cases are where people (or corporations or governments) sue other people (or corporations or governments) for some wrong.  If the person suing (plaintiff) wins, they are usually awarded money.

Criminal cases are where the government (and only the government), whether state, city, or federal, charges someone with a crime.  If the government wins, the defendant might be fined, and/or be sent to jail or prison, or in some cases even be put to death.

The terms used in each of these two systems are often different.  And this is where Grey's Anatomy got so embarrassingly off-track.  After the plaintiff's attorney finished questioning a witness, he exclaimed, "The prosecution rests."  Since this was a civil lawsuit, there was no "prosecution."  There was only a plaintiff. 

SPOILER ALERT  At the end, when the verdict was read, the jury foreperson announced, "Not guilty."  Again, since this was a civil suit, no one could be found guilty or not guilty.  Those terms are only used when someone has been charged with a crime.

There were several more minor errors throughout the show.  Most of these problems could have been easily corrected by having a legal consultant read through the script and/or be present for filming. 

The result of so many basic and easily-fixable errors was that the show looked poorly researched and inauthentic.  If their medical errors are as bad as their legal ones, I have to seriously question this show's credibility.  Not that a medical or legal show has to bee 100% accurate, but such basic mistakes can seriously undermine the show.

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OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 

That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

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This is an almost daily scene in television and movies:  An undercover police officer begins discussing an illegal transaction with a known criminal.  The criminal asks, "Are you a cop?"  Of course, the police officer says he is not.  The criminal is satisfied, and they conduct their illegal transaction.

In real life, if an undercover police officer is asked whether he or she is a cop, do they have to tell the truth?  The short answer is no. 

Police officers are allowed to lie to suspected criminals.  The police officer who lies and says he is not a cop will not get in trouble, and any evidence he collects as part of the undercover operation can be used in court.

I have sometimes been asked, isn't it entrapment when a police officer lies and says he is not a cop?  Again, the answer is no. 

Entrapment generally occurs when a police officer (or other government agent) induces the defendant to commit a crime he would not have otherwise committed.  Simply providing someone the opportunity to commit a crime is not entrapment.  Certainly telling someone that he or she is not a cop would not induce someone to commit a crime they would not have otherwise committed.

So, why do television shows and movies always do this?  I don't have a good answer for that.  Maybe it's an easy way to show the criminal is suspicious of the undercover cop.  Maybe it's laziness or ignorance on the part of the writers.  One thing is for sure:  it is overused and suggests an incorrect legal standard.

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As discussed in a prior post, the criminal justice system can be broken down into 6 stages.  Knowing what happens in each stage, and the people, procedures, and rights involved, is critical to understanding and writing about it.

The first stage is the Crime Stage.  This is basically when the crime occurs, and it is the key to any trip through the criminal justice system.

A crime may be instantaneous or it may be continuing.  Examples of instantaneous crimes are most murders or robberies.  A continuing crime, however, is usually a more complex scheme or criminal enterprise, such as a drug dealing operation or a ponzi scheme.

Generally, the people involved at the crime stage include the person or people committing the crime, the victims of the crime, and any witnesses to the crime.  If a police officer or federal agent is undercover, the crime could involve that person as well.

The setting for the crime stage can be literally anywhere, from a board room or bedroom to a back alley, outer space, or cyberspace.

An example of a movie that is entirely focused on the crime stage is Ocean's Eleven.  In that movie, the key characters are the criminals (led by Brad Pitt and George Clooney), as well as the target victim (Andy Garcia), and his casinos.  The majority of the movie is spent following the criminals as they recruit others to participate in and fund the crime, plan the crime, and finally execute it.  

The crime stage begins when the crime is committed or when the criminal scheme or enterprise begins.  It ends when the crime is completed or is stopped (by arrest or some other means).

In Ocean's Eleven, the movie begins at the beginning of the crime stage, with George Clooney conceiving of the crime, an extremely complex theft of a casino vault.  The movie ends after the crime has been completed.

(If you've never seen Ocean's Eleven, or don't own it, click on the pictures below to check it out.)

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What is required to prove a criminal defendant is legally insane?  Each state has its own laws and rules about its legal definition of insanity, but there are some general concepts that can be used to understand what it means to be legally insane.  It is important to note that the insanity defense is rarely used and has even been abolished in some states.

Insanity is generally considered an "excuse" to committing a crime.  An excuse defense is where, even though the defendant engaged in criminal conduct, he is excused from legal responsibility because of some condition in the defendant.  

Insanity is also considered to be an "affirmative defense."  An affirmative defense is one in which the defendant must affirmatively assert the defense and produce some evidence supporting it.  For some affirmative defenses in some states, the defendant also has the burden of proving the defense is true.  

Defendants are generally presumed to be sane, so a prosecutor does not need to prove the defendant was sane unless the defendant puts his sanity into question.  Once it is put into question, either the prosecution must prove the defendant was sane beyond a reasonable doubt or the defendant must prove he was insane by a preponderance of the evidence.

In some states the defendant must enter a special plea, such as not guilty by reason of insanity. Some states have a separate sanity phase where the jury determines the defendant's sanity after it has decided he committed the charged crime.

The focus of determining a defendant's sanity is his mental condition at the time of the crime.  (This is one way the test for insanity is different than the test for competence to stand trial.  For a discussion of the differences between sanity and competency, check out this prior post.)

To be found insane, the defendant must show that he suffered from a mental disease or defect at the time he committed the crime.  Generally, the mental disease or defect may be permanent or temporary.

The M'Naghten Test

The defendant's mental condition must satisfy the legal standard for insanity.  The M'Naghten test is traditionally the most commonly used  test to determine insanity.  Under the M'Naghten test, a person is considered legally insane if: 

1.  at the time of the crime
2.  he suffered from a defect of reason that resulted in him either
     a.  not knowing the nature and quality of the act he performed, or
     b.  not knowing his act was wrong.

A defendant knows the nature of his act if he knows what act he is performing.  He knows the quality of his act if he understands the consequences that flow from his act.

For example, a woman is charged with murdering her baby by drowning.  To prove she was legally insane, she must prove that because of a defect of reason, she either did not know she was holding her baby's head underwater, or did not know that holding the baby's head underwater would result in him drowning.

Alternately, the defendant can show she did not know that her act was wrong.  The term "wrong" in this context may mean either legally wrong or morally wrong, depending on the state.

In the above example, if the woman knew she was holding her baby's head underwater and understood this would cause the baby to drown, but she believed she must do so to rid him of the devil, she would assert that she did not know her act was wrong.  This would be an example of a moral wrong.

Insane Delusions

If someone suffers from delusions because of a defect of reason, they may be able to assert the insanity defense, depending on the nature of the delusion.  If the delusion was to a fact that, if true, would have justified the defendant's acts, he could assert the insanity defense.  If, however, the delusion was to a fact that, if true, would not have justified the defendant's acts, he may not be considered insane.

For example, the defendant was delusional and believed the victim was holding a gun when in fact e was holding a pen.  The victim pointed the pen at the defendant, who believed he was about to be shot.  The defendant pulled out a gun and shot the victim.  The defendant could assert the insanity defense because, had the victim really pointed a gun at him, he would have been justified in shooting the victim in self-defense.

However, if the defendant's delusion was that the victim tricked him out of his money, and he shot the victim in revenge, he would not be considered legally insane because, even if his belief was true, tricking someone out of their money does not justify shooting them.

Irresistible Impulse Test

The irresistible impulse test is sometimes used in conjunction with the M'Naghten test.  Under this test, the defendant must have a defect of the mind that makes it impossible for him to control his actions.

It is not sufficient to meet this test if someone is overcome by anger, jealousy, or other strong emotions.  (Such passion may be sufficient to reduce a killing from murder to voluntary manslaughter, but it cannot be a complete defense.)

Model Penal Code Test

Another test for insanity is set out by the Model Penal Code.  Under this test a person is considered insane if, because of a mental disease or defect, the person did not have the capacity to:
1.  understand the criminality or wrongfulness of his conduct, or 
2.  to conform his conduct to the law.

This is sometimes called the "policeman at the elbow test."  In other words, if the person would have committed the act even if there had been a police officer at her elbow watching her, she is considered unable to have understood the wrongfulness of her conduct or to conform her conduct to the law.

A defendant's sanity may be proven by either medical professionals or by lay (non-expert) witnesses.  Lay witnesses may testify about the defendant's behavior around the time of the crime to help the jury determine whether the defendant was sane or insane at the time of the crime.

To understand the differences between insanity and competency to stand trial, click here.

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When it comes to investigating and prosecuting crime, federal and state agencies are parts of separate governments.  Each state is also separate from all the other states.  These are called jurisdictions. 

The federal government is limited in what crimes it is allowed to investigate and prosecute.  There must be federal jurisdiction before the federal government can get involved.  Most street crimes, like murder, do not involve federal jurisdiction. 

The federal government may have jurisdiction if an otherwise state crime occurs on federal property, or involves federal officials, or crosses state lines.

The states and federal government also have separate law enforcement and prosecutorial agencies.  At the federal level, the FBI and U.S. Attorney's Office are primarily involved in investigating and prosecuting federal crimes. 

Each state has state law enforcement officers, as well as local city police departments and county sheriff's departments.  Most states also have state attorneys general, district attorneys, and city attorneys who prosecute state crimes.

Often in movies and TV shows, the local police department will get offended when the FBI comes into their jurisdiction.  The show "Criminal Minds" handles this issue regularly.

Criminal Minds follows a team of FBI profilers who help track and catch serial killers.  Most episodes have the team called in by a local police department that needs the team's expertise on recent crimes. 

The agent in charge of the Criminal Minds profiling team often stresses the importance of being invited by the local police department and working cooperatively with them once there.  This is because the FBI generally has no jurisdiction to investigate local murders, even multiple murders.  The FBI, as a federal agency, has limited jurisdiction to investigate federal crimes. 

The specialized profiling team on Criminal Minds, therefore, would generally analyze evidence from their unique perspective and help educate the local police department about the person they are looking for.

One episode of Criminal Minds (Season 2, ep. 22 “Legacy”), helps show this concept and demonstrates the difference between state and federal jurisdictions.   

Detective McGee from the Kansas City Police Department contacts the Criminal Minds team for help when he believes at least 63 homeless people have disappeared.  Because these people have not turned up dead and no one has reported them missing, however, there are no open files and no active local investigation into the matter. 

The following conversation takes place about the FBI team's ability to work on the case:

Upon unofficially reviewing some of the evidence and recognizing a potentially serious threat, Agent Prentiss expresses frustration at the team’s hands being tied because of jurisdictional concerns.  Agent Morgan reminds her, “If we don’t follow the city’s jurisdiction, no one’s ever going to ask us for help.”

These scenes demonstrate how delicate the balance of power between different law enforcement agencies can be.  It also exemplifies the limited role of the federal government when it comes to investigating and prosecuting crime.  Unless there is some federal aspect of the case that gives the feds jurisdiction, they have no authority.

Later in the episode, when Agent Hotchner meets with the detective’s commander, the commander declines the FBI’s help, claiming there is no case to investigate.  He does not consider the unexplained and unreported disappearance of several homeless people a crime. 

It is then discovered that a taunting letter from the potential suspect was mailed to Detective McGee from Kansas City, Missouri, whereas the people went missing from Kansas City, Kansas.  This interstate communication gave the FBI jurisdiction to investigate the crimes on their own without invitation from the local authorities.

In this scenario, both the federal government and the local authorities had jurisdiction to investigate the same crimes.  This is called concurrent jurisdiction. 

Bank robbery and drug sales are common areas of concurrent jurisdiction, where both the federal and state governments have jurisdiction.  And since the federal and state governments are separate governments, each could potentially prosecute the suspect once he was caught.  Typically, however, someone is only prosecuted by either the state or the federal government, even where both have jurisdiction. 

As a side note, the U.S. Constitution’s Double Jeopardy Clause does not forbid both the federal and state governments from prosecuting the same person for the same crime because they are separate sovereigns.

(click picture to check out Criminal Minds on DVD)

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