Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

July, 2020

Criminal Law and Procedure (PPT 7/20/20)

Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/368/

Criminal Law and Procedure
Fordham University School of Law
Pre-Law Institute
July 20, 2020
The Honorable Gerald Lebovits
Justice, New York State Supreme Court
Adjunct Professor of Law
 Required Readings
• New York City Bar Association, New York State Criminal Justice
Handbook
• https://www.nycbar.org/new-york-state-criminal-justice-
handbook

• Federal Defenders of New York, Information for Clients and Families

• https://federaldefendersny.org/information-for-client-and-
families/understanding-my-federal-case.html
 Introduction to Criminal Law and Criminal
Justice

Criminal Law Criminal Procedure Constitutional Limits

What are crimes?
Criminal law
Sources of criminal law
Why we punish?
Elements of just punishment
Strict liability
Classification of crimes
Common sentences
Defenses
Arraignment The Second Amendment
Preliminary Hearing & Grand Jury The Fourth Amendment
Bail The Fifth Amendment
Plea Bargaining The Sixth Amendment
Pre-trial The Eighth Amendment
Trial The Fourteenth Amendment
Sentencing
Appeals
 • A crime is any act or omission in violation of
a statutory law prohibiting the action or
omission.
• Nearly all states have abolished common-law
What are (law derived from judicial decisions instead of
statutes) crimes. A person may be convicted and
Crimes? punished only for conduct defined as criminal by
statutes or rules.
(Appreciation goes to Joshua Dressler, Understanding • A crime is anything that lawmakers say is a
Criminal Law 62 (8th ed. 2018), for much of the
information to the right. Pdf available at: crime.
http://link.overdrive.com/?websiteID=100477&
titleID=4262627.)
• Subject to the Constitution, this can make being left-
handed or having the flu a crime if a legislature chose
to do so.
• A crime is a public offense.
• It causes a social harm. The injuries suffered involves
a breach and violation of public rights and duties.
Civil Law vs. Criminal Law
(Appreciation to Rasmussen College for much of the information below. https://www.rasmussen.edu/degrees/justice-studies/blog/civil-law-versus-criminal-law/.)

Civil Law Criminal Law

• Settling disputes between • State vs individual
private citizens • System of laws concerned with
• Compensation rather than punishing those who commit
punishment crimes
• Right to jury trials is not • Punishment rather than
guaranteed compensation
• Right to jury trial is guaranteed
by Sixth Amendment
 • Legislature
• Federal Criminal Law (by
Congress)
Sources of • counterfeiting U.S. currency,
illegally entering the United
States, treason, drug trafficking,
Criminal Law firearms, crimes across state lines
(Interstate Commerce Clause), etc.
• State Criminal Law (by state
(Appreciation goes to American Studies Journal for much of
the information to the right. See legislatures) is made up of
http://www.asjournal.org/49-2007/criminal-justice-in-the-
united-states/.) general principles of criminal
responsibility, laws defining the
criminal offenses, and laws
defining excuses and
justifications.
• Acts can be crimes federal and
state crimes: E.g., bank robbery.
Federal Rules of Evidence Federal Rules of Criminal United States Code Title 18
Procedure (18 U.S.C.)
New York Criminal New York Penal Law
Procedure Law
 • Model Penal Code

• Drafted in the 1950s and 1960s by

the American Law Institute.

Sources of • The MPC is not law, but it heavily

Criminal Law influenced adoption of revised
penal codes: two-thirds of the
states have adopted the MPC in
whole or in part.
Why we punish?
(Appreciation goes to Joshua Dressler, Understanding Criminal Law 81-84 (8th ed. 2018),
for much of the information below. Pdf available at: http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

Two major theories of punishment:

• Utilitarian view: the purpose of law is to maximize the net happiness
of society.
• A wrongdoer is punished to achieve general deterrence. That is, a wrongdoer
is punished to convince the general community – more particularly,
protentional criminal offenders to forgo criminal conduct in the future.
• Retributive view: punishment is justified when it is deserved.
• A wrongdoer is punished whether it will result in a reduction of crime.
• Retributive view looks at only the blameworthiness of the crime.
• It imposed a ceiling that punishment may not exceed the crime.
Why we punish?
• Specific deterrence: Punishment intended to discourage criminal
behavior in people already charged with a crime.
• Captation: Keeping criminals in a controlled and secure
environment to keep them separate from the rest of society
Should we punish?
• Is punishment the best
way to deal with crime?
• Is a system of reform and
rehabilitation a more
effective and efficient
way of dealing with
crime?
Should we punish?
• Looking at this • B went to prison for arson. When B got out of prison, she
hypothetical situation, stayed on track for a couple of years, but one day she
which system seems to burned another building down. B went back to prison. When
work better? B was released, she burned her own home down, taking
Punishment or reform? herself with it. While in prison B did not get any mental
health help, which was determined to be the likely cause of
her repeated offenses and eventual suicide.
• Assume that the U.S. prison system saw B’s case and decided
to institute a system of reform rather than punishment. C
was homeless and barely surviving, but after finding out that
if she went to prison, she would live in a nice facility and get
all the help she needed, C decided to commit a crime so that
she could go to prison and live a better life.
Defining Criminal Conduct: The Elements of
Just Punishment

Legality Proportionality Culpability

No crime without law; no Must differentiate between serious Criminal conduct must consist of
punishment without law. and minor offenses culpable mind and culpable act
Legality
(Appreciation goes to Joshua Dressler, Understanding Criminal Law 123-24 (8th ed. 2018), for much of the information below. Pdf available at
http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• No crime without law; no punishment without law.

• People may not be punished unless legislation defines their conduct as
criminal before they act.
• The legality principle bars both retroactivity and vagueness.
• Crimes must be codified and ascertained in reasonably clear text.
• Rationale:
• Prevent arbitrary and vindictive use of the law.
• Enhance individual autonomy by negating the risk that one’s lawful conduct will be
punished retroactively.
• Give fair notice to individuals.
Legality
• Q has suffered from severe anxiety all her life but has never received treatment for it.
Q has trouble with everyday activities like leaving her home. Q learns about how
marijuana can help with anxiety and wants to try it. But Q lives in Wyoming, where
possessing marijuana is a crime. Q does some research and learns that in her
neighboring state of Colorado marijuana is legal. Q decides to drive to Colorado and
buy some recreational marijuana. Q decides to drive back home under influence so that
she can have a less anxious trip. About 10 minutes after crossing the Colorado-
Wyoming border, a police officer pulls Q over. The officer sees that she is driving under
influence and asks her whether he can search her car. Q lets him. The officer finds a
large amount of marijuana in her car. Q believes that she has done nothing wrong. Q
also believes that her driving under influence is justified because it helps her with her
anxiety.
Legality
• Are Q’s beliefs justified?
• What crimes is Q
committing?
• Should marijuana be
legalized on a national level?
Or continue on a state-by-
state basis?
Legality
(Appreciation goes to Sanford H. Kadish et al., Criminal Law and Its Processes Cases and Materials 176
(10th ed. 2017), for much of the information below.)

• Keeler v. Superior Court (1970) Supreme Court of California

• Keeler intercepted his ex-wife, who was in the advanced state of pregnancy, and shoved his
knee into her abdomen after saying that he will “stomp the fetus out of you.” The fetus was
delivered stillborn with a fractured skull. Keeler was charged with murder of the fetus under
California’s Penal Code, which provides that “murder is the unlawful killing of a human being,
with malice aforethought.”
• Court Decision: Keeler was not guilty of murder. The term “human being,” as contemplated
by the California’s Penal Code, does not include an unborn fetus.
• (1) notice problem: a reasonable person would not think a fetus is a living human being,
and kick fetus = killing a person at that time.
• (2) separation of power: this gap/explanation of some term of art in the statute should
be left to the state legislature.
• Soon after the Keeler decision, the California legislature amended the statute to include the
killing of a “fetus” in the definition of murder.
Proportionality
(Model Penal Code § 1.02(2)(a)(i) (2007).)

• Punishment should be rendered within a range of severity

proportionate to the gravity of offenses, the harms done to crime
victims, and the blameworthiness of offenders.
Proportionality
(Appreciation goes to Joshua Dressler, Understanding Criminal Law 141 (8th ed. 2018), for much of the information below. Pdf available at
http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Utilitarianism view of proportionality:

• Punishment must not be less than is required to outweigh the potential profit to the criminal
of committing the offense.
• Dangerous crimes should be punished more severely than less dangerous ones.
• Punishment should consider the degree to which the conduct in question is deterrable.
• Question: How severely should we punish intoxicated driving under this view?
• Little or no injury may occur in a specific case of intoxicated driving. But the offense is a
serious one because drunk driving can result in loss of life or injury to persons and
property.
• Drunk driving can be difficult to deter by threat of punishment. Is it appropriate to
impose penalties much greater than would be set for equally dangerous, but more easily
deterred behavior?
Proportionality
(Appreciation goes to Joshua Dressler, Understanding Criminal Law 145 (8th ed. 2018), for much of the information below. Pdf available at
http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Retributivism view of proportionality:

• Punishment must be proportional to the offense committed, taking into
consideration both the harm caused by the offender and the wrongdoer’s
degree of moral desert for causing it.
• Question: How severely should we punish intoxicated driving under
this view?
• Retributivist would not consider the difficulty-of-deterrence or likely future
harm as factors in calibrating the proper punishment.
• The penalty would be based on the harm of drunk driving itself and the
actor’s degree of moral desert, which are arguably minor.
• Under these circumstances, the penalty will likely be relatively light.
 Culpability
• Elements of Culpability:
• Actus Reus: voluntary act that causes social harm.
• Mens Rea: state of mind when committing the crime (mens rea needs to
be in concurrence with the act).
• Causation: voluntary act must cause the harm.
• Question: In the mythical Land of Oz are only two laws. Law 1 makes it
illegal to hurt someone. Law 2 makes it illegal to damage property. A
throws a rock at B but misses and breaks C’s window. Did a violate either
of both laws?
Culpability

Actus Reus (culpable conduct) vs. Mens Rea (culpable mind)

Actus Reus (culpable conduct)

• A person is not guilty of a crime unless her conduct includes a voluntary act.
• This is an essential (though implicit) element of every criminal offense.
• Voluntary: movement of body that follows “volition” – an act that is “willed.”
• What movement is involuntary?
• reflexes, spasms, seizures, convulsions, movements while unconscious
(automatism)/asleep
• HABITUAL acts are voluntary
• smoker lights up, change lanes at the same time everyday
 Actus Reus (culpable conduct)
• Examples:
• D’s arm strikes V as the result of an epileptic seizure. Is that a voluntary
act?
• No.
• D, who knew he was subject to seizures, drove his car anyway and
suffered a seizure that caused fatal accident. Is there a voluntary act?
• Yes. A broad time-frame would include the voluntary acts of
entering the car, turning the ignition key, and driving. D knowingly
placed himself in the position of imposing risks on others.
Actus Reus (culpable conduct)

• Examples:
• D killed her daughter when sleepwalking. Voluntary act?
• No. Sleepwalking is considered legally involuntary.
• D woke up and blacked out. When D blacked out, he shot and killed a
police officer. Voluntary act?
• No. Unconscious act is not voluntary.
Actus Reus (culpable conduct)
(Appreciation to Joshua Dressler, Understanding Criminal Law 223-25 (8th ed. 2018), for much of the information below. Pdf available at
http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Omission to Act
• An omission does not by itself produce criminal liability UNLESS you have
legal duty. Four situations in which you have a legal duty to act:
• When a statute imposes a duty to care for another.
• pay taxes, stop car after car accidents
• When one stands in a certain status relationship to another.
• Express OR implied (doctor, babysitter)
• When one has assumed a contractual duty to care for another.
• Husband/wife, parent/child, employer/employee
• When one has voluntarily assumed the care of another and but prevents others from
helping the helpless person.
• Bystanders/strangers generally have no legal duty to rescue, but only a moral
duty.
Actus Reus (culpable conduct)
• Examples:
• A well-meaning D takes a sick person into her home, but then fails to provide
critical care. Is D responsible for a death resulting from this failure?
• Yes. By offering voluntary assistance, D let the victim rely on her for care and secluded
the victim so that others are unaware of the victim’s deteriorating condition. D made
matters worse than if she had never been involved.
• D took in a mentally disabled mom and her two-month-old daughter. D’s
mother had a violent episode and severely beat her daughter, resulting the
child’s death. Is D liable for failing to intervene?
• No. D has only a moral duty to intervene. She did not fall into the class of people for
whom the law has found a duty of care.
Mens rea (culpable mind)
(Appreciation to Joshua Dressler, Understanding Criminal Law 253-55 (8th ed. 2018), for much of the information below. Pdf available at
http://link.overdrive.com/?websiteID=100477&titleID=4262627.)

• Culpability (Broad) definition: Prosecutor must prove a “morally

blameworthy” state of mind.
• Elemental (Narrow) definition: Consists of the mental state(s) described in
the statute. Those mental states “attach to” objective elements (result and
attendant circumstances elements) of the offense.
• Example: It is a felony purposely to do X and knowingly do Y (attendant
circumstances element), as to recklessly cause Z (result element).
Mens rea (culpable mind)

• MPC’s approach to mens rea

• The most influential section 2.02: “[A] person may not be convicted of an
offense unless he acted purposely, knowingly, recklessly or negligently . .
. with respect to each material element of the offense.”
MPC Attendant Circumstances Results

Purpose D is aware (believes) that D’s conscious object is to

X cause X
Knowledge D is aware (believes) that D believes that his conduct is
X practically certain to cause X
Mens rea
Recklessness D suspects that X (but D believes the risk of X is θ
does not believe that X) and takes that risk for reasons (culpable
Α-Ω and those reasons are
insufficient to justify taking
mind)
that risk
Negligence D is unaware that X, but a D is unaware of the risk of X
reasonable person would but a reasonable person
have been aware (would would have been aware of
have believed) that X that risk
Mens rea (culpable mind)
(Appreciation to Bryan Stevenson, Just Mercy 189-191 (2015), for much of
the information below. Pdf available at https://www.pdfdrive.com/just-mercy-a-story-of-justice-and-redemption-e60737094.html.)

• H is mentally ill. One day H left his

home and wandered into a town
where nobody knew him. H walked
into a stranger’s home. The stranger
called the police. When a police
officer arrived, H freaked out and
accidentally shot and killed the In this hypothetical situation, should H’s
officer with the officer's own gun. mental illness negate mens rea?
H’s mental state was so poor that
he was unable to form coherent
sentences and therefore unable to
defend himself. H was arrested
without understanding what he had
done.
Mens rea (culpable mind)
(See https://en.wikipedia.org/wiki/United_States_v._Jewell and https://www.quimbee.com/cases/united-states-v-jewell.)

• United States v. Jewell (1976) United States Court of Appeals for the Ninth Circuit
• Jewell was approached in a bar in northern Mexico near the border with the United States,
and after being offered marijuana which he declined to buy, was asked if he would drive a
car across the border for $100. The car was stopped at customs and marijuana was found in
the car in a compartment that Jewell had noticed but not inspected. To be found guilty the
law required that he have knowledge of marijuana being in the car. At trial, Jewell testified
that he did not know the drugs were there. There was circumstantial evidence that showed
Jewell had knowledge of the drugs and was therefore lying. And there was also
circumstantial evidence that showed although Jewell knew of the presence of the secret
compartment and that it likely contained marijuana, he deliberately avoided positive
knowledge of the presence of the drugs in order to avoid responsibility in the event he was
caught. The trial judge refused Jewell’s request to instruct the jury that, in order to convict,
Jewell must have had to “absolutely, positively” know the marijuana was in the secret
compartment. Jewell appealed the conviction.
Mens rea (culpable mind)
• United States v. Jewell (1976) United States Court of Appeals for the Ninth Circuit
• Appellate Court (9th Circuit) decision: Court held that willful
ignorance satisfied the requirements of knowledge of a fact.
“Knowledge” is established if a person is aware of a high probability
of its existence, unless he actually believes that it does not exist.”
Causation
• D points a gun at V, intending to kill
V. Seconds before D pulls the
trigger, X, independently of D,
shoots and instantly kills D. Then
the bullet from the gun of the
already-dead D strikes V. Is D guilty
of murder? Attempted murder?
• Attempted murder. It was X, not D,
who caused V’s death.
Causation
• Actual cause
• There can be no criminal liability for resulting harm unless it can be shown
that the defendant’s conduct was a cause-in-fact of the prohibited result.
• To make the determination, courts traditionally apply the but-for test: But for
D’s voluntary acts, would the social harm have occurred when it did?
Causation
• Proximate cause
• D has a minor argument with V. V, in a rage, runs to the street and is killed by
a stranger, X.
• D is the actual cause of V’s death (but-for test is satisfied). But D is not necessarily the
legal cause of V’s death.
• Actual cause serves only to eliminate candidates for responsibility. It does not resolve
the matter of ultimate causal responsibility.
Causation
• Proximate cause (direct cause)
• Only it is an actual cause.
• An act that is a direct cause of social harm is also a proximate cause.
• Proximate cause is a test of foreseeability: Could the actor foresee the
consequence?
Causation
• People v. Arzon (1978) New York State Supreme Court, New York County
• Arzon (defendant) intentionally set fire to a couch on the fifth floor of
an abandoned building. The New York City Fire Department was
unsuccessful in bringing the fire under control. As two of the firemen
were attempting to evacuate the building, they encountered thick
smoke that was later found to have come from a fire started on the
second floor. There was no evidence that Arzon set the fire on the
second floor. As a result of the smoke, a fireman sustained injuries and
later died. Was Arzon guilty of murder?
Causation
(See https://www.quimbee.com/cases/people-v-arzon.)

• People v. Arzon (1978) New York State Supreme Court, New York County
• Court held that it was foreseeable that firemen would have responded
to the situation, thus exposing them to a life-threatening danger. The
fire set by defendant was an indispensable link in the chain of events
that resulted in the death. Defendant was aware that the building,
while abandoned, was occupied by transients and that it was located in
the middle of a crowded neighborhood.
• Note: but you can also make arguments that such event was not
foreseeable.
Strict Liability
• Strict liability is a rule of criminal responsibility that authorizes the
conviction of a morally innocent person for committing a crime, even
though the crime, by definition, requires proof of a mens rea.
• Only requires a voluntary act or an omission to act.
Strict Liability
• Examples of Strict Liability:
• Statutory rape. Having sex with a minor is a crime even if the defendant did
not know the sexual partner was—or reasonably thought that the partner
was not—a minor.
• Selling alcohol to a minor is a strict-liability crime in some states: A conviction
is appropriate even if the seller honestly thought that the buyer was 21 or
older and tried to confirm that.
• Some traffic offenses may also be strict liability crimes. In many places, it
doesn’t matter whether the driver knew she went over the speed limit—the
plain fact that she did justifies a conviction.
Strict Liability
• Morissette v. United State (1952) United States Supreme Court
• Facts: D took shell casings off government property and sold them for a
profit. It was a crime knowingly to convert government property, but he
claims he thought the property had been abandoned.
• Court found it irrelevant whether his belief was reasonable. Court equated
his actions with the common-law crime of larceny, and common-law
crimes are generally not strict liability. He was acquitted.
Strict Liability
(See https://www.quimbee.com/cases/united-states-v-dotterweich.)

• United States v. Dotterweich (1986) United States Supreme Court

• Facts: Buffalo Pharmaceutical Company (defendant) purchased drugs
from manufacturers, repackaged them, and shipped them to physicians
and others under its own labels. On at least two occasions, the drug
manufacturer’s labels were incorrect. Buffalo Pharmaceutical and its
president and general manager, Dotterweich, were prosecuted for
shipping misbranded or adulterated products in interstate commerce in
violation of Federal Food, Drug, and Cosmetic Act § 301 .
Strict Liability
• United States v. Dotterweich (1986) United States Supreme Court
• Court held that ignorance is no defense for mislabeling canned food.
Sellers must inform themselves, unlike the innocent public, who is
wholly helpless.
 Scope of Criminality
• G lived in Florida. One day G was driving
his motorcycle without a helmet on. G hit
a bump in the road and fell off his
motorcycle. G cracked his head open and
died instantly. G’s death could have been
prevented if he was wearing a helmet.
The Florida is now considering making it
illegal to ride a motorcycle without
wearing a helmet.
• On one hand, the State of Florida does not
want to infringe on people’s freedoms. On
the other, the State wants to reduce the
number of motorcycle-related accidents and
spend less money on hospital bills and caring
for invalids. Should the state create this law?
Classification of Crimes
(Appreciation goes to the N.Y. St. Court System for many of the explanations below.
See https://www.nycourts.gov/courthelp/Criminal/typesCriminalCases.shtml.)

• In every state, crimes are put into different categories. Usually, these
categories are:
• Felony
• Felonies are the most serious crimes: murder, rape, and arson. If you are found guilty of
a felony, you may be sent to jail for 1 year or more.
• Misdemeanor
• A misdemeanor is more serious than a violation but less serious than a felony. Examples
of misdemeanors are prostitution, petty larceny, and making graffiti.
• Infraction (violations)
• A violation, like trespassing, unlawful possession of small amounts marijuana, or
disorderly conduct, is not considered a crime. The most you can be punished for a
violation is 15 days in jail.
Common Sentences
(Appreciation goes to the N.Y. St. Court System for many of the explanations below.
See https://www.nycourts.gov/courthelp/Criminal/typesCriminalCases.shtml.)

• Conditional Discharge
• The defendant is released under certain conditions, like paying money back (restitution),
going to a drug, anger management, job training or GED program, or paying a fine. If any
condition is not met, the defendant may be re-sentenced to a jail.
• Fine
• Defendants who are fined can pay the fine or go to jail. A defendant may also have to pay a
fine in addition to a conditional discharge, probation, or imprisonment sentence. A poor
person may not go to jail for not paying a fine.
• Probation
• The defendant is supervised by the Department of Probation for a number of years and may
have to follow certain conditions, like reporting to a probation officer and staying out of
trouble.
Common Sentences
• Restitution
• A defendant is ordered to pay the victim back for a loss that happened because of the crime.
Restitution can be a condition of probation or a conditional discharge.
• Unconditional discharge
• The defendant is sentenced and released without the Judge’s setting any conditions for
release.
• Imprisonment
• The defendant is sent to jail for a period of time.
Defenses
(See https://en.wikipedia.org/wiki/Criminal_defenses.)

• Types of Defenses
• Self-defense: Defendants argue that they were defending
themselves or another (defense of thirds) and therefore that their
acts are justified.
• Provocation: Defendants argues that their actions resulted from
preceding events that would make a reasonable person lose
control.
• Automatism: Defendants argue that they are not responsible for
the crime because they could not control their actions.
Defenses
• Types of Defenses
• Alibi: Defendants argue that they were somewhere else at the
time of the crime.
• Mistake: Defendants argue that they committed the crime by
accident and therefore never had the necessary mens rea.
• Necessity: Defendants argue that their actions were necessary to
prevent a greater harm from happening.
Defenses
• Types of Defenses

• Mental disorder/insanity: Defendant argue that they are not

responsible for their actions due to mental disorder/insanity at
the time of the crime.
• Diminished responsibility: Defendants argue that they are not
fully liable for their actions due to their an impaired or
“diminished” mental state.
Defenses
• Types of Defenses

• Intoxication: defendant argues that they are not be fully liable for
their actions due to their substance at the time of the crime.
• Duress: Defendants argue that they were forced to commit the
crime through threats or force by another party.
• Infancy: Defendants that qualify as an “infant” are not liable for
their actions.
 Criminal Procedure
(Appreciation to the N.Y. St. Court System for many of the explanations below. See http://www.nycourts.gov/courthelp/criminal/caseBasicsCriminal.shtml.)

Preliminary
Arraignment Plea
Arrest Hearing & Bail Pre-trial Trial Sentencing Appeal
Bargain
Grand Jury

Appreciation goes to the N.Y. St. Court System for Some of the Explanations
Below.
 After the defendant is arrested and processed, the defendant will
be brought to court for arraignment.

Before the arraignment, the defendant is assigned an attorney if he or she

Arraignment cannot afford one. The criminal complaint is read in court (unless the
reading is waived).

The defendant tells the court whether he or she is guilty or not guilty. This
is called the defendant’s plea. Bail or other conditions of release may be
set.
If the defendant pleads guilty, the If the defendant pleads not guilty to a
defendant skips to the sentencing step. felony, the case goes to the Grand Jury.
Preliminary Hearing
• At a preliminary hearing, the prosecutor and, if it wishes, the defense present
witnesses and other evidence to a judge without a jury. The judge will decide
whether there is prima facie evidence that the defendant committed a crime.
• If the judge decides that there is enough evidence, the prosecutor has 45 more days to
bring the case to a grand jury. If the prosecutor does not present evidence that you
committed any crime, the court must release you from custody.
• If the hearing shows that the defendant committed a crime other than the felony
charged, the court may reduce the charges against you.
• Most cases in New York City skip this hearing. The prosecutor takes the case
directly to a grand jury.
Grand Jury
• The grand jury decides whether there is enough evidence to put you
on trial.
• The grand jury votes an indictment when at least 12 (of 24, with a
quorum of 16) grand jurors think there is enough evidence to indict.
• The grand jury can find that there is not enough evidence for the felony, but
that there is enough evidence for a misdemeanor. In that case, the charges
will be reduced.
• If the grand jury finds that there is not enough evidence of a crime, the court
must dismiss the charges and release the defendant. This is called voting a no
true bill.
Bail
• Bail is the money or other security given to the court in exchange for
releasing a defendant from jail and the defendant’s promise to return
for the next court date.
• Posting bail allows the defendant to go back to his or her normal life
until the case is finished.
Bail
• The judge sets the bail amount. Bail may be denied in serious felony
cases or if the defendant has few community contacts. A defendant
may also be released without bail.
• Bail (minus a small administrative fee) is returned after the case is
over.
• A judge may set other conditions of release, like house arrest or
surrendering a passport.
• New York bail law does not allow judges to consider whether a
defendant is dangerous, but only whether bail is required to assure
that a defendant will return to court.
 New York’s bail laws
changed in January
Bail 2020 and again in July
2020.
Plea Bargaining
• Plea bargaining is when the defense and the prosecutor talk about settling the case
without a trial.

• Sentence bargaining is illegal in federal courts but legal in New York.

Plea Bargaining
• A defendant may seek a plea bargain, but the prosecutor may choose not to plea
bargain.
• A plea bargain must be approved by the judge. Only the judge may decide your
sentence. A defendant you may agree to plead guilty in exchange for the
prosecutor’s promise to ask the judge for a sentence with no jail time, just
probation.
• Or the defendant and the prosecutor may agree that on a plea to a lesser charge
that has a lower range of punishments for the judge to choose your sentencing.
Pre-trial
• New York Discovery
• After arraignment and before the trial, both sides will exchange information needed
to prepare their cases for trial. The defendant must give notice and details of some
defenses, like an alibi or insanity. The prosecution must turn over evidence that
tends to exculpate or mitigates punishment (Brady and Rosario material), as well as
witness statements (Rosario material) and scientific evidence. This is called
discovery.
• New York had the nation’s most pro-prosecution discovery laws before January 1, 2020. After that
date, it had the nation’s most pro-defense discovery laws. The law changed again effective May 3,
2020.

• Question: Should the law require complete and immediate discovery in criminal cases?
Pre-trial
• Pre-trial motions
• A motion is how a party asks the court for something. For example, a
defendant may ask the judge to dismiss the case in the interests of justice,
reduce the charges, or prevent evidence from being used at the trial.
• Hearings may be held to decide whether the motions should be granted or
not.
 Pre-trial New York
• Motion to suppress: Defendant moves to suppress evidence from
the trial.
• Types
• Mapp Hearing: Motion to suppress illegally obtained physical
evidence. Fourth Amendment.
• Huntley Hearing: Motion to suppress a defendant’s statement or
confession on Miranda/voluntaryness grounds.
• If the statement was made due to abuse or threats.
• If the statement was made without being informed of Fifth Amendment
rights.
Pre-trial
• Types

• Wade Hearing: Motion to suppress police arranged

identification (line-up, show-up, photo array) of the
defendant.
• Dunaway Hearing: Motion to suppress any evidence or
statement that derived from an illegal law-enforcement act.
Trial
• Burden of Proof
• To convict, the prosecution must prove guilt beyond a reasonable doubtto
the judge (if it is a bench trial) or jury. Because of the presumption of
innocence, the defendant may (but need need not) offer any evidence.
Trial
• Trial procedure
• The trial starts with opening statements. The prosecutor goes first and
then the defense can make a statement.
• Next, the prosecutor tries to meet the burden of proof by having
witnesses testify and by submitting evidence. The defendant may then
call witnesses and offer evidence in support of a defense.
Trial
• Trial procedure

• At the end of the trial, the defense may make a closing statement
called a summation, followed by the prosecutor’s closing statement.
Then the Judge or jury makes a decision.
Trial
• Jury Trial
• In New York City, Class B misdemeanors and violations are tried by a judge
without a jury. This is called a bench trial. Outside New York City, a defendant
has has a right to a jury trial for all Class B misdemeanors.
• Jury Selection
• Jurors are chosen from members of the community who are serving jury
duty.
• For a felony, 12 jurors and up to 6 alternates are chosen.
• For a lesser crimes, six jurors and up to 4 alternates are chosen.
• The judge, the prosecutor, and defense counsel will question the jurors. This
is called voir dire. Both attorneys can object to some of the jurors.
Trial
• Jury Selection
• Peremptory challenge: objection to a potential juror made without
reasoning.
• Allows attorneys to object to jurors based on a hunch about the potential juror.
• The number of peremptory challenges an attorney may use is limited by statute
• Challenges for cause: Objection to a potential juror for some stated reason
• The number of challenges for cause an attorney may use is unlimited.
Sentencing
• If a defendant is found guilty or pleads guilty, the judge will impose a
sentence.
• For violations and minor misdemeanor cases, a defendant might be
sentenced right away. Where the possibility of prison time exists, the
case will most likely get a date a few weeks away for a sentencing
hearing.
Sentencing
• A pre-Sentence Report will be made to help the Judge decide your
punishment.
• At your sentencing hearing, you, your lawyer, the Prosecutor and, in
some cases, the victim of your crime, all have a chance to speak to
the Judge about your sentence.
• The Judge decides your sentence (jury decides whether you are
culpable or not).
Constitutional Limits
• Are there limits to a legislature’s
lawmaking authority?
• May a state legislature or Congress
make it an offense to desecrate an
American flag? (Texas v. Johnson.)
• May it make it a crime to be a drug
addict?
• May it make it a crime to be infected
with the HIV virus?
Constitutional Limits
• Various provisions of the United States Constitution, as interpreted
by the judiciary, limit legislative action. A state legislature is also
limited by its own state constitution. Relevant U.S. Constitution
provisions are:
• Bill of rights (limiting federal government):
• The Second Amendment
• The Fourth Amendment
• The Fifth Amendment
• The Sixth Amendment
• The Eighth Amendment
• The Fourteenth Amendment (limiting state and local governments)
• Due Process Clause
The Second Amendment
• “A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.”
• In District of Columbia v. Heller, the Supreme Court held that the right
to bear arms is a personal right.
• This right is subject to regulatory and possession of weapons.
The Second Amendment
Should stricter gun control laws be in place?

Pro–Gun Control Against Gun Control

 The Second Amendment
• Y’s father abused Y and Y’s mother. Y’s
father owns a gun and has a gun license. The
gun is kept in a cabinet that Y can easily
reach. One day Y decides he has had enough
of his father’s abuse. Y gets his father’s gun
and then points the gun at his father,
attempting to shoot him in the legs. Y shoots
the gun at his father but instead he
accidentally shoots him in the chest, killing
him instantly.

• How should this

situation be handled?
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,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
• Evidence obtained by the police in violation of this amendment may be
excluded at a defendant’s criminal trial.
• This amendment also limits the degree of force a police officer may use in
arresting a suspect or prevent an escape.
• This amendment does not prevent police from using no-knock
warrants. Should the law be amended?
The Fourth Amendment
(See https://www.quimbee.com/essay-practice-exams/criminal-procedure-exam-2.)

• Exclusionary Rule: illegally obtained evidence may not be used in

criminal trial.
• Should this always be the case? Especially when that evidence will directly affect
the outcome of the trial?
• One day a police department in the state of Wisconsin is flying a drone that has recording
features. The officers are flying the drone at an altitude of 500 feet (the FAA has approved
private flights at 500 feet). They happen to fly the drones over a greenhouse located in a
woman’s backyard. The roof of the greenhouse is transparent and without zooming in the
police officers can easily see inside. The drones catch clear footage of multiple potted marijuana
plants growing inside of the greenhouse. Using the footage from the drones, the police get a
warrant to search the greenhouse and seize the marijuana plants. The police then arrest the
property owner for possession of Marijuana. The property owner challenges the
constitutionality of this search claiming that she held an expectation of privacy and therefore
the drone video footage constituted as “an unlawful warrantless search.”
• Is the property owner’s reasoning correct?
The Fourth Amendment
• In relation to national security, should the exclusionary rule still be a
factor in what evidence may be used?
• The FBI believed that W had access to and planned on leaking confidential
government documents to the public, but the agents were not sure it was
W. If these confidential documents were leaked to the public, national
security would be at risk. Without informing W, the FBI hacked into W’s
computer network to search for the files. They found all the files on W’s
computer and were able to remove them and prevent W from accessing
them again. The FBI arrested W for being a terrorist. At W’s trial, his lawyer
argued that the FBI illegally found these documents and due to the
exclusionary rule of the Fourth Amendment, they may not be used as
evidence against W.
• Is this claim correct?
 The Fourth Amendment
• The Fourth Amendment is also • Does this hypothetical situation
meant to protect against violate the Fourth Amendment?
unnecessary and excessive
force used by police officers.

• Two officers were standing in line at a store. Suddenly, the officers noticed that M was
shoplifting. The shop owner confronted M, but M pushed the shop owner over and
continued to take store items. The two officers cornered M and attempted to put him in
handcuffs. M pushed the two officers to the side and began to walk out of the store. One
of the officers ran in front of M, but M pushed him over. The other officer couldn’t let M
get away, so he tackled him with all his force. It turned out that M had an underlying
medical condition which caused him to die when the officer tackled him.
The Fifth Amendment
• “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor 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.”
The Fifth Amendment
• Miranda v. Arizona (1966) United States Supreme Court
• Miranda (defendant) was arrested and brought to the police station on account of a
kidnapping and rape. After two hours of interrogation, the police officers were able
to get a written confession from Miranda. Miranda’s confession was admitted as
evidence at his trial even though theMMpolice officers admitted to not telling Miranda
of his right to an attorney during the interrogation. Miranda was found guilty.
Miranda appealed but the Supreme Court of Arizona held that Miranda’s
constitutional rights were not violated because he had not specifically request to
have an attorney present.
• The case was taken to the United States Supreme Court.
• Court decided that the Fifth Amendment requires that law enforcement inform suspects of their
right to remain silent as well as their right to an attorney during interrogations.
The Fifth Amendment
• In criminal cases, the Fifth Amendment guarantees the right to
a grand jury, forbids “double jeopardy”(prohibiting anyone from
being prosecuted twice for the same crime) and protects against self-
incrimination (implicating oneself in a crime or exposing oneself to
criminal prosecution). It also requires that “due process of law” be
part of any proceeding that denies a citizen “life, liberty or property”
and requires the government to compensate citizens when it takes
private property for public use.
The Sixth Amendment
• “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed. . . .”
• The Sixth Amendment guarantees a criminal defendant the right to a
jury trial.
• In April 2020 the Supreme Court ruled that trials for serious offenses
must have a unanimous jury (Ramos v. Louisiana).
• Defendants found guilty by a divided jury will get a new trial.
The Sixth Amendment
• Jury nullification is not
illegal. If a juror who
knows about it is excluded
would that violate the
Sixth Amendment?
The Eighth Amendment
• “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.”
• The Eighth Amendment restricts legislative act in two ways:
• It imposes limitations on what legislators may define as criminal
• It prohibits punishment that is barbarous in its infliction or grossly
disproportional to the offense committed.
The Eighth Amendment
• Question: Should felons have the right to vote?
Are laws that forbid felons to vote cruel and
unusual?
The Eighth Amendment
• Does the death
penalty violate
the Eighth
Amendment?
The Eighth Amendment
• Are private prisons “cruel and unusual”?
• Private prisons cost the government less money. However, they
tend to have bad conditions for inmates.
• Less security, gangs run the place, weapons are easily accessible, food is not
nutritionally adequate, there is no certainty that every prisoner will get fed
every meal, the prisoners are housed in units that need serious repairs, etc.
The Fourteenth Amendment
• “No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”
The Fourteenth Amendment

• Does America’s cash-

bail system violate the
Fourteenth
Amendment?
The Fourteenth Amendment
• As seen from recent events and the protests happening today, many argue that the
U.S. criminal justice system is inherently racist.
• Others argue that the system itself is not racist.
• The Fourteenth Amendment is meant to give all citizens equal protection under the
law. Is it doing its job?
The Fourteenth Amendment
• If racism is indeed systemic, should the government defund the police on a
national or local level?
• Would that contribute to a rise in crime or help lower crime rates?
• What would defunding the police mean for the U.S.?
QUESTIONS? ANSWERS?
 Hon. Gerald Lebovits is an acting New York State Supreme Court justice in Manhattan, New York. He is a
former staff attorney with the Legal Aid Society, Criminal Defense Division, in Manhattan and a Criminal
Court Judge in Manhattan. Since 2011 he has been an adjunct professor of law at Fordham University
School of Law, where the students have elected him Adjunct Professor of the Year. For their excellent
help with this PowerPoint, Justice Lebovits thanks his judicial fellows Sacha Norton, an honors student at
Greenwich High School in Greenwich, Connecticut, and Junpeng (Aiden) Qiao, a rising 2L at Cornell Law
School in Ithaca, New York.

Justice Gerald Lebovits