Criminal Law

V. Federalism

The American system of government follows the principle of federalism. Although the federal government, through the U.S. Constitution, has a duty to prevent states from infringing upon the rights of citizens, the majority of powers to regulate the conduct of citizens rest with the states. Only those powers expressly granted to the federal government by the Constitution are outside state control. For the most part, all state criminal laws and procedures must be adhered to unless they conflict with the U.S. Constitution. For example, under the police powers of the Tenth Amendment of the Constitution, Texas has the right to regulate conduct that is dangerous to its citizens. However, when Texas forbids the broadcast of any beer commercials within its state, it has created an unconstitutional law. The power to regulate commercial speech has been specifically granted to the federal government by preventing any state regulation of commercial speech in this area (Hazard, 1983).

Each state has the power to create its own criminal statutes pursuant to the police powers clause of the Tenth Amendment of the U.S. Constitution. Each state is free to define its crimes as long as the statute satisfies the principle of legality. Moreover, the statutes must also be understandable, not subject to ad hoc interpretation, and applied in favor of the accused when there is any ambiguity (Wallace & Roberson, 1996, p. 225). These requirements are mandated by the due process clause of the Fifth and Fourteenth Amendments (Torcia, 1995). In most states, there are no longer any common-law crimes. An act or omission is not criminal unless it is defined as a crime in a statute (Frase & Weidner, 2002). The power of the federal government to prosecute crime is restricted by the U.S. Constitution. Crimes can be prosecuted by the federal government when they are among the following:

  • Crimes that involve interstate commerce or the use of federally controlled communications: These crimes include wire fraud, crossing across state lines to avoid prosecution, interstate prostitution, and interstate kidnapping.
  • Crimes committed in areas of federal jurisdiction that do not fall within state jurisdiction: These areas include aircraft, ships on navigable waters, and the District of Columbia.
  • Crimes that impact federal government activities: These include crimes that use the U.S. mail, robbery of federally insured banks, attacks upon federal personnel, and violation of federal tax laws.

VI. Prosecutors and Defense Attorneys

The sworn duty of a prosecutor is to seek justice, regardless of the result. However, some have argued that the adversarial system, which pits each attorney against the opposing side in a case, sometimes interferes with that duty (Neubauer, 2008). For example, if a complaining witness lacks credibility, justice demands that the case be dismissed. However, if the prosecutor is convinced of the truth of the charges, he or she should vigorously seek a conviction, irrespective of the challenges.

Most prosecutors are employed by counties within each state. The district attorneys of each county are elected officials, with offices that include assistant or deputy district attorneys. Some prosecutor’s offices are small, and the district attorneys try their own cases. In most major cities, however, the district attorney’s office has hundreds of deputies divided into teams that prosecute specific types of cases, such as gang or drug crimes (Greenwalt, 2002).

Pursuant to the Sixth Amendment to the U.S. Constitution, the law provides that “in all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense.” If a person accused of a crime cannot afford an attorney, the Supreme Court has recognized a constitutional right to have an attorney appointed for the accused at public expense. The Supreme Court held in Gideon v. Wainwright (1963) that the Sixth Amendment requires indigent defendants in state court proceedings to have appointed counsel. This right was expanded in Argersinger v. Hamlin (1972), in which the Court ruled that an indigent defendant must be provided an attorney when imprisonment is a possible punishment, even when the offense is only a misdemeanor.

A defense attorney’s duty is always to the justice system, but he or she has a duty to zealously advocate on behalf of his or her client within the bounds of the law, regardless of the outcome. The defense attorney must protect his or her client’s rights while vigorously challenging the evidence and seeking the best result possible. To hear a criminal case, a court must have jurisdiction over the offense charged and the person charged with the offense (Neubauer, 2008). Under the Sixth Amendment, the accused has a right to have a speedy public trial by an impartial jury in the state and district where the crime was committed. If the offense was committed in several counties or across state lines, the prosecutor bears the burden of proving that an essential part of the offense was committed in his or her jurisdiction (Fletcher, 2002).

In hearing the criminal case, the court applies the law of the jurisdiction in which it sits (Reitz, 2002). For example, a trial court in Hennepin County (Minneapolis) is governed by Minnesota law. If a kidnapping starts in Minneapolis and ends with the arrest of the defendant in New York, jurisdiction lies in Minnesota, New York, the federal courts, and any state where it can be proven that some part of the kidnapping was perpetrated.

State courts are usually set up as follows (Robinson, 1992):

  • A court of last resort (supreme court)
  • An intermediate appellate court (court of appeals)
  • General trial courts (superior courts)
  • Limited jurisdiction courts (probate and small claims)

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