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Criminal Law Cases Outline

While statutes and regulations define many crimes, understanding the nuances of criminal law also requires exploring cases that have interpreted common-law, statutory, and constitutional principles. Among other things, courts have helped shape the criminal justice system, outline what the prosecution must prove to get a conviction, and define the strategies that a defendant can use to protect their freedom. Below is an outline of key cases in criminal law with links to the full text of virtually every case, provided free by Justia.

• 1 Due Process and the Scope of Criminal Laws
• 2 Elements of a Crime
• 5 Blackmail
• 7 Accomplices
• 8 Conspiracy
• 9 Corporate Liability
• 10 Strict Liability Crimes
• 11 Addiction, Alcoholism, and Status Offenses
• 12 Self-Defense and Defense of Property
• 13 Necessity and Duress Defenses
• 14 Mistake of Fact or Law Defenses
• 15 Insanity Defense
• 16 Prosecutors and Plea Bargains
• 17 Jury Trials in Criminal Cases
• 18 Sentencing for Crimes

Due Process and the Scope of Criminal Laws

The doctrine of due process provides that a defendant cannot face criminal penalties unless the law clearly prohibits their conduct. Criminal laws should be understandable to ordinary people and should not pose a risk of arbitrary or discriminatory enforcement.

McBoyle v. U.S. 一 A fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.

Smith v. U.S. 一 A criminal who trades his firearm for drugs uses it during and in relation to a drug trafficking crime within the meaning of the federal statute.

Commonwealth v. Mochan 一 The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act that directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer.

Chicago v. Morales 一 Vagueness may invalidate a criminal law if it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits, or if it authorizes or encourages arbitrary and discriminatory enforcement.

Keeler v. Superior Court 一 An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates like an ex post facto law, which the Constitution forbids.

Rogers v. Tennessee 一 A judicial alteration of a common-law doctrine of criminal law violates the principle of fair warning, and thus must not be given retroactive effect, only when it is unexpected and indefensible by reference to the law that had been expressed prior to the conduct at issue.

Elements of a Crime

Most crimes contain act (actus reus) and mental state (mens rea) elements. Sometimes the act element involves a failure to act when a defendant was subject to a legal duty. The four main mental states, in descending order of culpability, are intent (or purpose), knowledge, recklessness, and criminal negligence.

Martin v. State 一 A criminal act must be voluntary to support a conviction.

Jones v. City of Los Angeles 一 A law must criminalize conduct rather than status.

Jones v. U.S . 一 A defendant may be held criminally liable for breaching a legal duty through a failure to act in four situations: when a statute imposed a duty on the defendant to care for another person, when the defendant held a certain status relationship to another person, when the defendant assumed a contractual duty to care for another person, or when the defendant voluntarily assumed the care of another person and secluded them so that other people could not provide aid.

People v. Carroll 一 A person who acts as the functional equivalent of a parent in a familial or household setting is a person legally responsible for a child’s care.

People v. Beardsley 一 While it is the moral duty of every person to extend to others assistance when in danger, no legal duty is created based on a mere moral obligation.

Pope v. State 一 A person may not be punished as a felon for failing to fulfill a moral obligation.

Regina v. Cunningham 一 In any statutory definition of a crime, malice must be taken not in the sense of wickedness in general but instead as requiring either an actual intention to do the particular kind of harm that in fact was done, or recklessness as to whether such harm should occur.

Regina v. Faulkner 一 “Malice” requires that the act done must be intentional and willful, although the intention and will may perhaps be held to exist in, or be proved by, the fact that the accused knew that the injury would be the probable result of their unlawful act, and yet did the act reckless of such consequences.

State v. Hazelwood 一 Criminal negligence is met when a risk is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Santillanes v. State 一 The purpose of the criminal negligence standard is to deter behavior that is culpable, or that entails greater risk or fault than mere inadvertence or simple negligence.

U.S. v. Giovanetti 一 Criminal knowledge based on willful ignorance cannot be found when a person did not act to avoid learning the truth.

U.S. v. Jewell 一 To impute criminal knowledge to a defendant based on willful ignorance, the defendant must have been ignorant solely because they had a conscious purpose to avoid learning the truth.

First-degree murder usually requires a finding of premeditation, while second-degree murder usually involves other intentional homicides. A severe provocation can reduce a murder charge to voluntary manslaughter. Involuntary manslaughter generally involves a homicide that was reckless or grossly negligent. The felony murder rule makes defendants liable for murder in many instances involving deaths related to certain other felonies.

Commonwealth v. Carroll 一 No time is too short for a wicked man to frame in his mind his scheme of murder.

State v. Guthrie 一 There must be some evidence that the defendant considered and weighed their decision to kill to establish premeditation and deliberation for first-degree murder.

People v. Anderson 一 Evidence sufficient to sustain a finding of premeditation and deliberation falls into three categories: facts about how and what the defendant did prior to the killing that show that the defendant was engaged in activity directed toward the killing, facts from which the jury could reasonably infer a motive to kill the victim, and facts about the nature of the killing from which the jury could infer that the defendant must have intentionally killed according to a preconceived design to take the victim’s life in a particular way.

Girouard v. State 一 Words can constitute adequate provocation to reduce murder to voluntary manslaughter if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.

U.S. v. Bordeaux 一 If the defendant had enough time between the provocation and the homicide to reflect on their intended course of action, the fact of passion does not reduce the crime from murder to voluntary manslaughter.

Maher v. People 一 A reasonable or adequate provocation can be anything the natural tendency of which would be to produce such a state of mind in ordinary men, and that the jury are satisfied did produce it in the case before them.

State v. Simonovich 一 A defendant was not entitled to a voluntary manslaughter jury instruction when there was no evidence that he had found his wife in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was severely proximate.

Dennis v. State 一 Sexual intimacy or significant sexual contact are terms that cover too great a range of conduct to be acceptable as the basis for an adequate provocation related to adultery.

State v. Elliott 一 A homicide influenced by an extreme emotional disturbance is a killing brought about by a significant mental trauma that caused the defendant to brood for a long period of time and then react violently, seemingly without provocation.

People v. Casassa 一 A determination of whether there was a reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them, and assessing from that standpoint whether the explanation or excuse was reasonable.

Commonwealth v. Welansky 一 To constitute wanton or reckless conduct, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter their conduct to avoid the act or omission that caused the harm. Even if the specific defendant did not realize the grave danger, they cannot escape the imputation of wanton or reckless conduct if an ordinary person under the same circumstances would have realized it.

People v. Hall 一 The charge of reckless manslaughter requires that the actor consciously disregarded a substantial and unjustifiable risk that death could result from their actions.

State v. Williams 一 Statutes may supersede both voluntary and involuntary manslaughter as defined at common law and provide that manslaughter can be committed even if the death was the proximate result of only ordinary negligence.

Commonwealth v. Malone 一 Malice is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others.

U.S. v. Fleming 一 Malice may be established by evidence of conduct that is reckless and wanton and a gross deviation from a reasonable standard of care, such that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm.

Regina v. Serne 一 Any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony that causes death, should be murder.

People v. Stamp 一 As long as a homicide is a direct causal result of a robbery, the felony-murder rule applies regardless of whether the death was a natural or probable consequence of the robbery. A felon is strictly liable for all killings committed by their accomplices or them in the course of the felony.

People v. Gillis 一 Actions immediately connected with a felony, including attempts to escape or prevent detection, are a continuous part of the commission or perpetration of the felony.

People v. Cabaltero 一 A homicide was committed in the perpetration of a robbery when it was done while the conspirators were attempting to flee from the scene with the fruits of the robbery in their possession.

State v. Canola 一 It is regressive to extend the felony murder rule to lethal acts of third persons not in furtherance of the felonious scheme.

People v. Acosta 一 In a proximate cause inquiry, the analysis is whether the defendant’s conduct was the actual cause of the harm (would it have occurred as it did but for their actions?), whether the result was an intended consequence of the act, whether the defendant’s action was a substantial factor in the harm, and whether the result was highly extraordinary in light of the circumstances.

People v. Arzon 一 Causation between arson and a death was found when it was foreseeable that the victim would be exposed to a life-threatening danger, the fire was an indispensable link in the chain of events that resulted in the death, and the defendant’s act placed the victim in a position in which they were particularly vulnerable.

People v. Kibbe 一 To be a sufficiently direct cause of death, the ultimate harm must have been something that should have been foreseen as being reasonably related to the acts of the defendant.

People v. Campbell 一 When a defendant had no present intention to kill, but merely hoped that the victim would commit suicide, this did not satisfy the intent required for murder.

People v. Kevorkian 一 There is a distinction between active participation in a suicide and involvement in the events leading up to the suicide, such as providing the means.

Stephenson v. State 一 When suicide follows a wound inflicted by the defendant, their act is homicidal if the victim was rendered irresponsible by the wound and as a natural result of it. The wound does not need to be physical.

Commonwealth v. Root 一 When the victim was drag racing with the defendant and recklessly swerved their car into the path of an oncoming truck, this was not forced upon them by any act of the defendant. The victim brought about their own demise.

People v. Kern 一 Defendants who chased and threatened the victim while carrying weapons were liable for the victim’s death when the only reasonable alternative for the victim was to seek safety by crossing a highway, where they were hit by a car and killed.

State v. McFadden 一 The foreseeability requirement, coupled with the requirement of recklessness, prevents the risk of harsh or unjust results in involuntary manslaughter cases.

Commonwealth v. Atencio 一 Wanton or reckless conduct could be found in the concerted action and cooperation of the defendants in helping to bring about the victim’s foolish act.

Many rape cases hinge on force and lack of consent, since the underlying conduct is not inherently criminal. Consent must be voluntary, and a person must have the capacity to consent. Resistance is not necessarily required if the prosecution can show that the defendant used threats that prevented resistance.

State v. Rusk 一 To justify a conviction for rape, the evidence must warrant a conclusion either that the victim resisted but was overcome by force, or that the victim was prevented from resisting by threats to their safety. Lack of consent is established through proof of resistance or proof that the victim failed to resist because of fear.

State v. DiPetrillo 一 When resistance to the defendant’s inappropriate conduct might result in an adverse work-related consequence, this is not an implied threat of force or violence.

State v. Thompson 一 The definition of force cannot be stretched to include intimidation, fear, or apprehension.

Commonwealth v. Mlinarich 一 The non-volitional aspect of rape requires only that the conduct by the actor would prevent resistance by a person of reasonable resolution.

People v. Evans 一 If the defendant uttered words that were taken as a threat by the person who heard them, but were not intended as a threat by the defendant, there is no basis for finding the necessary criminal intent.

Boro v. Superior Court 一 If a deception causes a misunderstanding as to the fact itself (fraud in the factum), there is no consent. If a deception relates merely to a collateral matter (fraud in the inducement), consent induced by fraud is as effective as any other consent.

Commonwealth v. Sherry 一 Any resistance is enough when it demonstrates that the lack of consent is honest and real.

Commonwealth v. Fischer 一 When physical force is alleged in a sexual assault, the defendant generally cannot claim that they reasonably believed that they had consent.

Blackmail or extortion often involves threats to reveal criminal or embarrassing conduct by the target if they do not provide money or another financial benefit to the defendant.

State v. Harrington 一 Blackmail may involve a demand for settlement of a civil action, accompanied by a malicious threat to expose the wrongdoer’s criminal conduct, if made with intent to extort payment, against their will.

People v. Fichtner 一 The law does not authorize the collection of just debts by threatening to accuse the debtor of a crime, even though the complainant is guilty of the crime.

For a conviction based on attempt, the defendant generally must have intended to cause the prohibited result. Tests for the act requirement of attempt include the substantial step, last step, and dangerous proximity tests.

State v. Raines 一 An intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body.

Smallwood v. State 一 It is permissible to infer that a person intends the natural and probable consequences of their act.

Regina v. Eagleton 一 For a conviction based on attempt, the defendant must have taken the last step that he was able to take on the path of his criminal intent.

People v. Rizzo 一 The law considers those acts only as tending to the commission of a crime that are so near to its accomplishment that in all reasonable probability the crime would have been committed but for timely interference.

U.S. v. Jackson 一 For a conviction of attempt, the defendant must have engaged in conduct that constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.

Accomplices

An “accomplice” is a person who facilitates criminal conduct by another person, known as the “principal.” They may be charged with the same crime as the principal. Accomplice liability usually requires an intent to aid or encourage the principal in committing the crime.

Hicks v. U.S. 一 For a conviction based on aiding and abetting, the acts or words of encouragement and abetting must have been used by the defendant with the intention of encouraging and abetting the principal.

State v. Gladstone 一 There is no aiding and abetting unless the defendant associated himself with the venture in some way, participated in it as in something that he wished to accomplish, and sought by his action to make it succeed.

U.S. v. Fountain 一 Aiding and abetting murder is established by proof that the supplier of the murder weapon knew the purpose for which it would be used.

State v. McVay 一 There may be an accessory before the fact in some types of manslaughter.

People v. Russell 一 The fact that defendants set out to injure or kill one another does not preclude a finding that they intentionally aided each other to engage in the mutual combat that caused another person’s death.

People v. Abbott 一 Accessorial liability may attach for criminally negligent homicide if the accessory shared the requisite culpable mental state for the crime and intentionally aided in its commission.

Commonwealth v. Roebuck 一 An accomplice may be held accountable for contributing to conduct to the degree that their culpability equals what is required to support the liability of a principal.

People v. Luparello 一 An accomplice is guilty not only of the offense that they intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person whom they aid and abet.

Roy v. U.S. 一 An accessory is liable for a criminal act that in the ordinary course of things was the natural and probable consequence of the crime that they advised or commanded, even if they may not have intended this consequence.

State ex. rel. Attorney General v. Tally, Judge 一 It is enough if the aid merely makes it easier for the principal to accomplish the end intended by the principal and the aider and abetter, even if in all probability the end would have been attained without it.

State v. Hayes 一 When an act essential to the crime was not imputable to a defendant charged with aiding and abetting, their guilt was not made out. The intent and act must combine, and all the elements of the act must exist and be imputable to the defendant.

Vaden v. State 一 A principal does not need to be found guilty or even prosecuted in order to convict the accomplice.

Conspiracy generally involves an agreement to commit a crime in the future. It can be charged separately from the underlying crime. The federal government and certain other jurisdictions impose liability on a conspirator for crimes committed by other conspirators that were meant to further the conspiracy and were reasonably foreseeable.

Interstate Circuit, Inc. v. U.S. 一 To establish an agreement, the government may rely on inferences drawn from the course of conduct of the alleged conspirators.

People v. Lauria 一 Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present to make the supplier a participant in a criminal conspiracy.

Pinkerton v. U.S. 一 A party to a continuing conspiracy may be responsible for substantive offenses committed by a co-conspirator in furtherance of the conspiracy, even if they do not participate in the substantive offenses or have any knowledge of them.

State v. Bridges 一 A co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy.

U.S. v. Alvare z 一 Murder could be a reasonably foreseeable consequence of a drug conspiracy when a substantial amount of drugs and money were involved. This meant that the conspirators must have been aware of the likelihood that at least some of them would be carrying weapons and that deadly force would be used if necessary to protect their interests.

Corporate Liability

Corporations may be charged with crimes committed by their officers and agents. The federal government and many other jurisdictions hold a corporation liable when an agent commits a crime within the scope of their employment with the intent to benefit the corporation.

New York Central & Hudson River Railroad Co. v. U.S. 一 Congress can impute to a corporation the commission of certain criminal offenses and subject it to prosecution for them.

U.S. v. Hilton Hotels Corp. 一 A corporation is liable under the Sherman Act for the acts of its agents in the scope of their employment, even if these are contrary to general corporate policy and express instructions to the agent.

U.S. v. Automated Medical Laboratories, Inc. 一 An agent’s conduct may be imputed to a corporation in a criminal case if it is motivated at least in part by an intent to benefit the corporation, even if it is actually or potentially detrimental to the corporation.

Commonwealth v. Beneficial Finance Co. 一 A corporation may be convicted for the acts of its agent if the corporation placed the agent in a position in which they had enough authority and responsibility to act for and on behalf of the corporation in handling the corporate business, operation, or project in which they were engaged when they committed the criminal act.

U.S. v. Guidant, LLC 一 Probation can be an appropriate penalty for a corporation when this would serve the public interest in accountability.

U.S. v. Park 一 Corporate officer liability for strict liability offenses requires only a finding that the officer had authority with respect to the conditions that formed the basis of the alleged violations.

U.S. v. MacDonald & Watson Waste Oil Co. 一 When a crime has knowledge as an express element, a mere showing of official responsibility is not an adequate substitute for direct or circumstantial proof of knowledge.

Strict Liability Crimes

A strict liability crime is an offense that does not require proving a mental state element. These are generally limited to violations of regulations that protect public safety and health.

Morissette v. U.S. 一 Mere omission from a criminal statute of any mention of intent is not to be construed as eliminating that element from the crimes defined.

U.S. v. Balint 一 To constitute the offense of selling drugs contrary to Section 2 of the Anti-Narcotic Act, it is not necessary that the seller be aware of their character.

U.S. v. Dotterweich 一 Legislation that dispenses with the requirement of awareness of wrongdoing puts the burden of acting at hazard on a person who is otherwise innocent but standing in responsible relation to a public danger.

Staples v. U.S . 一 Without a clear statement from Congress that mens rea is not required, the public welfare offense rationale should not be applied to interpret any statute defining a felony offense as dispensing with mens rea.

U.S. v. Freed 一 The absence of a specific intent requirement in an essentially regulatory statute in the area of public safety does not violate due process.

U.S. v. X-Citement Video, Inc. 一 In a statute prohibiting the distribution of child pornography, the term “knowingly” extends both to the sexually explicit nature of the material and the age of the performers.

Addiction, Alcoholism, and Status Offenses

Drug addiction and chronic alcoholism generally are not defenses to crimes such as drug possession or public intoxication. However, a statute cannot criminalize the status of being a drug addict or an alcoholic. Other laws based on status also are generally unconstitutional.

Robinson v. California 一 A state law that imprisons a drug addict as a criminal, even though he has never touched any drug in the state or been guilty of irregular behavior there, inflicts a cruel and unusual punishment and thus is unconstitutional.

Jones v. City of Los Angeles 一 The Eighth Amendment prohibits enforcement against homeless individuals of a law that criminalizes sitting, lying, or sleeping on public streets and sidewalks, since they are engaging in these actions involuntarily due to the unavailability of shelter.

Powell v. Texas 一 Chronic alcoholics do not suffer from such an irresistible compulsion to drink and get drunk in public that they are utterly unable to control their performance of these acts and cannot be deterred from public intoxication.

State ex rel. Harper v. Zegeer 一 Criminally punishing alcoholics for being publicly intoxicated violates the prohibition against cruel and unusual punishment under the West Virginia Constitution.

U.S. v. Moore 一 Drug addiction is not a defense to a charge of drug possession.

Self-Defense and Defense of Property

Self-defense allows a person to use deadly force based on a reasonable belief that they faced an imminent threat of death or serious bodily injury. Jurisdictions have taken varying approaches to the duty to retreat before using deadly force. There is no duty to retreat before using non-deadly force. Many jurisdictions do not allow deadly force to protect property, unless a person illegally entered a home, but non-deadly force to protect property is widely accepted.

U.S. v. Peterson 一 The right to kill or maim in self-defense requires a threat, actual or apparent, of the use of deadly force. The threat must have been unlawful and immediate. The defender must have believed that they were in imminent peril of death or serious bodily harm and that their response was necessary to save them. These beliefs must have been honest and objectively reasonable.

People v. Goetz 一 A determination of reasonableness must be based on the circumstances facing a defendant or their situation. These may include the physical movements of the potential assailant, any relevant knowledge that the defendant had about that person, the physical attributes of everyone involved, and any prior experiences of the defendant that could provide a reasonable basis for a belief that the other person intended to injure or rob them or that the use of deadly force was necessary.

State v. Kelly 一 Expert testimony may be admissible in a case involving battered woman’s syndrome and self-defense to show that the defendant honestly believed that they were in imminent danger of death and that their belief that they faced an imminent danger of death or serious injury was reasonable.

State v. Norman 一 A self-defense jury instruction is not appropriate in a case involving battered woman’s syndrome unless evidence is introduced that tends to show that at the time of the killing, the defendant reasonably believed that she faced circumstances that necessitated killing her husband to save her from imminent death or great bodily harm.

State v. Abbott 一 Deadly force is not justifiable if the actor knows that they can avoid the necessity of using such force with complete safety by retreating.

Allen v. State 一 If a person by provocative behavior initiates a confrontation, even with no intention of killing the other person, they lose the right of self-defense.

People v. Ceballos 一 Bodily force cannot be justified to prevent all burglaries of a dwelling, including those in which nobody is, or is reasonably believed to be, on the premises except the would-be burglar.

Sydnor v. State 一 A victim of a robbery who disarms the robber and is no longer in immediate danger of death or serious bodily injury may not typically use deadly force in pursuit of the robber or to recover the stolen property.

Necessity and Duress Defenses

Necessity involves choosing the lesser of two evils, while duress involves committing a crime due to coercion by a threat or use of unlawful force that could not reasonably have been resisted. Traditionally, neither necessity nor duress is a defense to homicide.

People v. Unger 一 The absence of one of the Lovercamp preconditions does not alone disprove the claim of necessity and should not automatically preclude an instruction on the defense.

Commonwealth v. Leno 一 The necessity defense is not available when the legislature has precluded the defense by a clear and deliberate choice regarding the values at issue.

U.S. v. Schoon 一 The necessity defense is inapplicable to cases involving indirect civil disobedience.

State v. Toscano 一 Duress is a defense to a crime other than murder if the defendant engaged in conduct because they were coerced to do so by the use of, or threat to use, unlawful force against their person or the person of someone else, which a person of reasonable firmness in their situation would have been unable to resist.

Mistake of Fact or Law Defenses

A mistaken belief about a fact may defeat a criminal charge if the mistake was reasonable. Even if the mistake was not reasonable, this defense may defeat a charge that involves a specific intent element. A mistake of law defense is much more limited but sometimes may negate the mental state element of a crime.

State v. Benniefield 一 For a conviction of drug possession in a school zone, the prosecution does not need to prove that the defendant knew that he was in a school zone.

Regina v. Prince 一 It is no defense to a charge of abducting an unmarried girl under the age of 16 that the defendant believed, reasonably and in good faith, that the girl was older than 16.

People v. Olsen 一 A good-faith, reasonable mistake as to the victim’s age is not a defense to a lewd or lascivious conduct charge with a child under 14 years of age.

B (A Minor) v. Director of Public Prosecutions 一 A defendant is entitled to be acquitted of the offense of inciting a child under 14 to commit an act of gross indecency if they hold or may hold an honest belief that the child was 14 or older.

Garnett v. State 一 There is no reasonable mistake of age defense to statutory rape, since this is traditionally viewed as a strict liability crime designed to protect young persons from the dangers of sexual exploitation, loss of chastity, physical injury, and pregnancy.

People v. Marrero 一 When the government is not responsible for the error, mistake of law should not be available as an excuse.

People v. Weiss 一 Willful intent to seize a person without authority of law is an essential issue in a kidnapping case, and there is no intent to act without authority of law if the defendants believed in good faith that they were acting within the law.

Cheek v. U.S. 一 Statutory willfulness, which protects the average citizen from prosecution for innocent mistakes due to the complexity of the tax laws, is the voluntary, intentional violation of a known legal duty. A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable.

Liparota v. U.S. 一 Without any indication of a contrary purpose in the statute’s language or legislative history, the government in a prosecution for food stamp fraud must prove that the defendant knew that their acquisition or possession of food stamps was in a manner unauthorized by statute or regulations.

U.S. v. Int’l Minerals & Chem. Corp. 一 When dangerous products are involved, the probability of regulation is so great that anyone who is aware that they are in possession of them or dealing with them must be presumed to be aware of the regulation.

U.S. v. Ansaldi 一 Knowledge of the law prohibiting drug manufacturing and distribution, or an intent to violate the law, is simply not an element of this offense.

U.S. v. Overholt 一 As the federal government has sought to protect the environment by imposing more and more restrictions on people handling dangerous chemicals, Congress has not intended to reduce the burden on such persons to inform themselves of what the law requires.

U.S. v. Albertini 一 A person whose conduct has been tried in court and vindicated on appeal can rely on the court’s decision in repeating the same conduct after receiving the appellate judgment, when the government has either filed a petition for certiorari or still has time to file such a petition, and the Supreme Court has not acted to grant or deny the petition.

Hopkins v. State 一 The advice of counsel, even though followed in good faith, furnishes no excuse to a person for violating the law and cannot be relied upon as a defense in a criminal action.

Lambert v. California 一 A municipal ordinance that makes it an offense for a person who has been convicted of a crime punishable in that state as a felony to remain in that city for more than five days without registering violates due process when it is applied to a person who has no actual knowledge of their duty to register, and when no showing is made of the probability of such knowledge.

U.S. v. Wilson 一 Unless the text of the statute at issue dictates a different result, establishing a knowing violation of the statute only requires proof of knowledge by the defendant of the facts that constitute the offense.

Insanity Defense

A defendant cannot be convicted of a crime if they were unable to understand what they were doing or understand that their actions were wrongful, due to a mental illness. However, a finding of insanity may lead to indefinite civil commitment.

M’Naghten’s Case 一 To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act that they were doing, or as not to know that what they were doing was wrong.

U.S. v. Lyons 一 Evidence of mere narcotics addiction, standing alone and without other physiological or psychological involvement, raises no issue of such a mental defect or disease as can serve as a basis for the insanity defense.

Jones v. U.S. 一 When a criminal defendant establishes by a preponderance of the evidence that they are not guilty of a crime by reason of insanity, the Constitution permits the government to confine the defendant to a mental institution until such time as they have regained their sanity or are no longer a danger to society or them.

Prosecutors and Plea Bargains

A prosecutor should pursue charges only if they reasonably believe that they can prove that the defendant is guilty beyond a reasonable doubt. Most criminal cases end with plea bargains. A guilty plea must be voluntary, knowing, and intelligent, but a prosecutor can use threats or inducements to the extent that their tactics are supported by the evidence in the case.

Inmates of Attica Correctional Facility v. Rockefeller 一 Federal courts have traditionally refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made.

U.S. v. Armstrong 一 For a defendant to be entitled to discovery on a claim that they were singled out for prosecution on the basis of their race, they must make a threshold showing that the government declined to prosecute similarly situated suspects of other races.

Santobello v. New York 一 When the prosecution failed to keep a commitment concerning the sentence recommendation on a guilty plea, the interests of justice and proper recognition of the prosecution’s duties in relation to promises made in connection with plea bargaining require that the judgment be vacated and that the case be remanded to the state courts for further consideration as to whether the circumstances require only that there be specific performance of the agreement on the plea, or whether the defendant should be allowed to withdraw the plea.

Padilla v. Kentucky 一 A criminal defense attorney must inform a non-citizen client whether their plea carries a risk of deportation.

Brady v. U.S. 一 A plea of guilty is not invalid merely because it was entered to avoid the possibility of the death penalty. A guilty plea meets the standard of voluntariness when it is made by a defendant fully aware of the direct consequences of the plea.

Bordenkircher v. Hayes 一 Although punishing a person because they have done what the law allows violates due process, there is no such element of punishment in the “give-and-take” of plea bargaining, as long as the accused is free to accept or reject the prosecutor’s offer. The reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo their right to plead not guilty is constitutionally legitimate.

Jury Trials in Criminal Cases

The Supreme Court has described the range of cases that entitle a defendant to a jury trial under the Sixth Amendment and outlined certain requirements for the composition of a jury. The power of jury nullification may allow a jury to acquit a defendant despite overwhelming evidence of their guilt. However, this power is subject to strict limitations.

Duncan v. Louisiana 一 The Fourteenth Amendment guarantees a right to a jury trial in all criminal cases that would come within the Sixth Amendment guarantee of trial by jury if they were tried in a federal court. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses.

Taylor v. Louisiana 一 The requirement that a jury be selected from a representative cross-section of the community is fundamental to the jury trial guaranteed by the Sixth Amendment. This requirement is violated by the systematic exclusion of women from jury panels.

Batson v. Kentucky 一 While a defendant has no right to a jury composed in whole or in part of persons of their own race, the Equal Protection Clause guarantees the defendant that the prosecution will not exclude members of their race from the jury venire on account of race, or on the false assumption that members of their race as a group are not qualified to serve as jurors.

U.S. v. Dougherty 一 The fact that there is widespread existence of the jury’s prerogative of lenity, as well as approval of its existence as a necessary counter to case-hardened judges and arbitrary prosecutors, does not establish as an imperative that the jury must be informed by the judge of that power.

People v. Fernandez 一 A judge did not err in refusing to tell the jury that if it had found unanimously that the defendant was guilty of the greater offense, it could nonetheless return a verdict of guilty of the lesser offense instead.

People v. Engelman 一 A jury instruction may inform jurors at the outset of jury deliberations that jurors must immediately advise the court if any juror refuses to deliberate or expresses an intention to disregard the law or decide the case based on penalty or punishment, or any other improper basis.

U.S. v. Thomas 一 A judge faced with anything but unambiguous evidence that a juror refuses to apply the law as instructed need go no further in their investigation of the alleged nullification. In these circumstances, the juror is not subject to dismissal on the basis of their alleged refusal to follow the court’s instructions.

Merced v. McGrath 一 A prospective juror may be excused if the juror’s voir dire responses convey a definite impression that their views would prevent or substantially impair the performance of their duties as a juror in accordance with their instructions and their oath.

Sentencing for Crimes

The main purposes of criminal punishment are retribution, deterrence, incapacitation, and rehabilitation. The death penalty is not unconstitutional per se, unless it is applied in an arbitrary, capricious, or discriminatory way. However, it is generally limited to homicide, and the Eighth Amendment forbids any punishment that is grossly disproportionate to the crime.

U.S. v. Jackson 一 The selection of a sentence within the statutory range is essentially free of appellate review.

U.S. v. Gementera 一 The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives.

Williams v. New York 一 In considering the sentence to be imposed after a conviction, the sentencing judge is not restricted to information received in open court.

U.S. v. Deegan 一 When a sentence is within the advisory guideline range, it typically receives a presumption of reasonableness.

Harmelin v. Michigan 一 The Eighth Amendment does not require strict proportionality between crime and sentence but instead forbids only extreme sentences that are grossly disproportionate to the crime.

Ewing v. California 一 Nothing in the Eighth Amendment prohibits a state from choosing to incapacitate criminals who have already been convicted of at least one serious or violent crime.

Graham v. Florida 一 The Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime.

Miller v. Alabama 一 The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.

Gregg v. Georgia 一 The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments.

Atkins v. Virginia 一 Executions of mentally retarded criminals are cruel and unusual punishments prohibited by the Eighth Amendment.

Roper v. Simmons 一 The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

Kennedy v. Louisiana 一 The Eighth Amendment is defined by the evolving standards of decency that mark the progress of a maturing society. This principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.

This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.

Last reviewed August 2023

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Criminal Law

The term “ criminal law ” refers to the actual laws, statutes, and rules that define acts and conduct as crimes, and establishes punishments for each type of crime. Criminal acts are generally those seen by the government to threaten public welfare or safety, the severity of which categorizes various crimes as either misdemeanor or felony . To explore this concept, consider the following criminal law definition.

Definition of Criminal Law

• The area of local, state, and federal law that defines criminal acts and offenses, governs the arrest, detention, charging, and prosecution of accused offenders, and sets specific punishments.

Late 16th century

Criminal Law vs. Civil Law

While civil law cases involve disputes between individuals or entities in which the parties seek a resolution to a contractual or other civil issue, criminal law cases involve the prosecution of an individual for a criminal act. In a civil case, the lawsuit is brought by an individual or entity seeking monetary or other remuneration from another individual or entity. A criminal law case is initiated by a prosecutor. An individual or entity found legally accountable in a civil lawsuit may be ordered to pay money, give up property, or perform certain contractual obligations, but are not subject to imprisonment . A person convicted of a criminal offense, however, may be ordered to pay a fine , and may be incarcerated.

What is a Crime

A crime is defined as any act or omission that violates a law. While most criminal acts in the U.S. are defined in written statutes, which vary significantly from state to state, some common law crimes do exist. No act may be considered or prosecuted as a crime if it has not already been established as a crime by statute, or by common law.

While common law is sometimes used in reference to laws and ideals brought forward through time, often from colonial England, it more currently refers to the edicts and decisions made by judges in court proceedings, which set a standard by which to judge future similar cases.

Crime of Omission

Individuals are seen as owing two types of duty towards others. First, they are bound to act according to the law, not violating current statute or the laws of the time. Second, people have a moral duty to act in certain circumstances, such actions described by moral values and traditions, referred to as a “moral duty.”

An example of moral duty might occur when Sam sees that Brian is drowning in shallow water. There is no specific law or statute that requires Sam to jump in and save Brian, but a moral duty would certainly require Sam to do whatever he could to save Brian. Common law and certain modern statutes apply objective consideration to whether or not an individual would risk injury to his health or well-being by proactively intervening to prevent injury to another. In the event an individual or entity failed to act, with the knowledge that his failure to act would contribute to or cause injury to another, he could be found guilty of a crime of omission.

In the drowning example above, if Brian was drowning in water only a foot deep, or there was no floatation device that Sam could toss to Brian, or if Sam had his cell phone in his pocket that could be used to call 9-1-1, yet Sam took no action to aid Brian, he could be found liable for a crime of omission. On the other hand, there is absolutely no requirement that a person put himself in harm’s way to provide aid, so if Brian was drowning in raging flood waters, Sam would not be held liable for not jumping in.

Elements of a Criminal Act

To find someone guilty of a criminal act, the prosecution must generally prove two different elements of the particular situation: (1) that the act occurred, and (2) that the act was purposeful, or that the accused had a conscious intent to act.

An “overt act” is something a person does on purpose, knowingly, or recklessly that is against the law. An act is “purposeful” when the person has a conscious intent to engage in the act, or to bring about a certain result. A purposeful act is deliberate and voluntary, not the result of a mistake, or an act coerced by another person. An action is “reckless” when the perpetrator knows it carries an uncalled-for risk for harm to another, yet consciously disregards that risk.

The “intent” to commit a criminal act must take place before the act itself, though the two may occur as instantly as simultaneous thoughts. The courts may assume criminal intent from certain facts of the case which would lead any reasonable person to make the same assumption. For example, the intent to commit armed robbery may be assumed by the defendant ’s possession of a mask and gun, as long as the items coincide in some way with the robbery or attempted robbery.

Additionally, criminal intent may be assumed by the fact that the person committed the crime. In other words, it may be assumed a person intended that the “natural and probable consequences” of his voluntary or purposeful act would lead to the actual result. For example, it may be assumed that the person intended to commit murder by the fact that he purposefully pointed a gun at the victim and pulled the trigger.

Criminal Law Procedure

Criminal law procedure refers to the process of charging, prosecuting, and assigning punishment for criminal offenses. The actual procedures for dealing with criminal matters vary by jurisdiction , and written procedures exist for local, state, and federal jurisdictions, all of which generally begin with formal criminal charges, and end with the acquittal or conviction, and sentencing if appropriate, of a defendant.

In all U.S. jurisdictions, criminal law procedure places the burden of proof squarely on the prosecution, requiring the prosecution to prove, beyond a reasonable doubt , that the defendant is guilty. This relieves the defendant of having to prove his innocence, and any doubt as to the defendant’s guilt on any charge is resolved in his favor. This concept is known as “the presumption of innocence.”

Criminal Law in Action

The world is filled with people committing acts considered criminal offenses. From writing checks on a closed bank account, to murder and mayhem, the variety of ways people seek to thwart the law and cause harm to others is astounding. Throughout the years, many criminal law cases have been so astonishing as to make headlines.

The Leopold and Loeb Trial

The 1924 kidnapping and murder of a 14-year old boy by Nathan Leopold, Jr. and Richard Loeb, both sons of wealthy families and students of the University of Chicago, shocked the nation.

Leopold and Loeb, described as having a strangely intense relationship, engaged in a fantasy-turned-reality of committing the perfect crime. After much plotting and planning, the duo kidnapped 14-year old Bobby Franks as he walked home from school one day, killing him by striking him in the head with a chisel. They then drove to a nearby marshland, poured hydrochloric acid over Franks’ naked body, then stuffed it in a drainage culvert.

To carry out the scheme, the pair then sent a $10,000 ransom demand to Franks’ parents. The boy’s body was discovered and identified before the Franks family complied with the ransom demand, however, and the boys were arrested.

Leopold and Loeb’s now-famous attorney, Thomas Darrow, plead the boys guilty, then a month-long hearing ensued on the issue of whether they should face the death penalty. On August 22, 1924, Darrow presented a more than 12-hour argument in a jam-packed courtroom, attempting to convince the judge that he should take into consideration the boys’ youth, surging sexual urges, and even genetics that may have led to the commission of such a heinous crime.

Darrow’s efforts were met with derision as the prosecutor attacked his attempt to blame the crime on anything other than the defendants’ choice and intent. The judge, when announcing his decision, called the murder of Bobby Franks “a crime of singular atrocity,” for which “judgment cannot be affected” by the potential influences over the boys’ decisions. The judge’s sentence did, however, reflect consideration for the defendants’ young age, as well as the potential benefits to society and the science of criminology in the study of these two individuals. As a result, Leopold and Loeb were sentenced to life in prison without the possibility of parole .

The Trial of Bernhard Goetz

During a New York City crime wave in the 1980s, a group of African American 18- and 19-year old boys approached 37-year old commuter Bernhard Goetz, demanding that he give them five dollars. Goetz had previously been mugged by three African American young men, and had taken to carrying a concealed .38 revolver. Goetz, feeling threatened, rapidly fired five shots from his revolver, severely injuring four of the young men, one of which suffered a severed spinal cord.

As the incident was publicized, frightened citizens quickly hailed Goetz as a hero, dubbing him the “subway vigilante.” Goetz was eventually indicted by a grand jury on three charges of illegal possession of a weapon, though the grand jury initially refused to indict him on charges of attempted murder or reckless endangerment. The prosecutor took the matter to a second grand jury, eventually securing the desired attempted murder charges.

During the trial , the prosecutor attempted to paint Goetz as a racist man with a “twisted and self-righteous sense of right and wrong.” He stated Goetz had shot one of the teens in the back while he was running away, and shot another point blank while he was sitting down on a subway seat, severing the youth’s spinal cord. The jury didn’t buy that the teens were “doing absolutely nothing to threaten or menace” Goetz, and were innocent victims.

Goetz’s attorney, Barry Slotnick, pointed out that Goetz was not “Rambo,” but rather a person surrounded by young men threatening him, who took the appropriate action to defend himself from “hoodlums” and “thugs.” Slotnick pointed out that the young men took on an assumption of risk that a citizen whom they were threatening, and who had no avenue of escape in an enclosed subway car, would take the lawful and justifiable action of firing a weapon in self defense .

The jury decided immediately to find Goetz guilty of illegally possessing a loaded firearm, as there was no question he possessed the gun on the subway and had no license to carry it. From there deliberations turned to the issue of intent. In the end, the jurors acquitted Goetz on the four charges of attempted murder, stating that, while he clearly desired to end the threat, whether it was real or imagined, he had no motivation to kill the teens. One of the jurors was quoted as saying that, whether Goetz’s feeling of being trapped was reasonable or not, “he didn’t go out hunting.”

Criminal Law Attorney

When someone has been charged with a crime, he has a Constitutional right to representation by an attorney. A criminal law attorney is one who specializes in criminal defense, and has experience in dealing with the prosecutor’s office, as well as in criminal trials. A criminal law attorney may handle a wide spectrum of criminal case types, such as theft , fraud , and embezzlement , as well as DUI, drug crimes, violent crimes, and sex crimes. Some criminal defense attorney’s specialize in one area of criminal law, such as corporate fraud, or violent crimes.

Related Legal Terms and Issues

• Natural and Probable Consequences – a consequence of a particular act or course of conduct that may be reasonably foreseen by another person of average intelligence.
• International Criminal Law – an area of international law that deals with conduct viewed as serious atrocities, holding individuals guilty of such conduct accountable. Such issues commonly include war crimes, genocide and other crimes against humanity , terrorism , and other crimes of aggression.

• How to Prepare for Law School
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How to write a case brief for law school: Excerpt reproduced from Introduction to the Study of Law: Cases and Materials ,

Third edition (lexisnexis 2009) by michael makdisi & john makdisi.

C. HOW TO BRIEF

The previous section described the parts of a case in order to make it easier to read and identify the pertinent information that you will use to create your briefs. This section will describe the parts of a brief in order to give you an idea about what a brief is, what is helpful to include in a brief, and what purpose it serves. Case briefs are a necessary study aid in law school that helps to encapsulate and analyze the mountainous mass of material that law students must digest. The case brief represents a final product after reading a case, rereading it, taking it apart, and putting it back together again. In addition to its function as a tool for self-instruction and referencing, the case brief also provides a valuable “cheat sheet” for class participation.

Who will read your brief? Most professors will espouse the value of briefing but will never ask to see that you have, in fact, briefed. As a practicing lawyer, your client doesn’t care if you brief, so long as you win the case. The judges certainly don’t care if you brief, so long as you competently practice the law. You are the person that the brief will serve! Keep this in mind when deciding what elements to include as part of your brief and when deciding what information to include under those elements.

What are the elements of a brief? Different people will tell you to include different things in your brief. Most likely, upon entering law school, this will happen with one or more of your instructors. While opinions may vary, four elements that are essential to any useful brief are the following:

(a) Facts (name of the case and its parties, what happened factually and procedurally, and the judgment)

(b) Issues (what is in dispute)

(c) Holding (the applied rule of law)

(d) Rationale (reasons for the holding)

If you include nothing but these four elements, you should have everything you need in order to recall effectively the information from the case during class or several months later when studying for exams.

Because briefs are made for yourself, you may want to include other elements that expand the four elements listed above. Depending on the case, the inclusion of additional elements may be useful. For example, a case that has a long and important section expounding dicta might call for a separate section in your brief labeled: Dicta. Whatever elements you decide to include, however, remember that the brief is a tool intended for personal use. To the extent that more elements will help with organization and use of the brief, include them. On the other hand, if you find that having more elements makes your brief cumbersome and hard to use, cut back on the number of elements. At a minimum, however, make sure you include the four elements listed above.

Elements that you may want to consider including in addition to the four basic elements are:

(e) Dicta (commentary about the decision that was not the basis for the decision)

(f) Dissent (if a valuable dissenting opinion exits, the dissent’s opinion)

(g) Party’s Arguments (each party’s opposing argument concerning the ultimate issue)

(h) Comments (personal commentary)

Personal comments can be useful if you have a thought that does not fit elsewhere. In the personal experience of one of the authors, this element was used to label cases as specific kinds (e.g., as a case of vicarious liability) or make mental notes about what he found peculiar or puzzling about cases. This element allowed him to release his thoughts (without losing them) so that he could move on to other cases.

In addition to these elements, it may help you to organize your thoughts, as some people do, by dividing Facts into separate elements:

(1) Facts of the case (what actually happened, the controversy)

(2) Procedural History (what events within the court system led to the present case)

(3) Judgment (what the court actually decided)

Procedural History is usually minimal and most of the time irrelevant to the ultimate importance of a case; however, this is not always true. One subject in which Procedure History is virtually always relevant is Civil Procedure.

When describing the Judgment of the case, distinguish it from the Holding. The Judgment is the factual determination by the court, in favor of one party, such as “affirmed,” “reversed,” or “remanded.” In contrast, the Holding is the applied rule of law that serves as the basis for the ultimate judgment.

Remember that the purpose of a brief is to remind you of the important details that make the case significant in terms of the law. It will be a reference tool when you are drilled by a professor and will be a study aid when you prepare for exams. A brief is also like a puzzle piece.

The elements of the brief create the unique shape and colors of the piece, and, when combined with other pieces, the picture of the common law takes form. A well-constructed brief will save you lots of time by removing the need to return to the case to remember the important details and also by making it easier to put together the pieces of the common law puzzle.

D. EXTRACTING THE RELEVANT INFORMATION: ANNOTATING AND HIGHLIGHTING

So now that you know the basic elements of a brief, what information is important to include under each element? The simple answer is: whatever is relevant. But what parts of a case are relevant? When you read your first few cases, you may think that everything that the judge said was relevant to his ultimate conclusion. Even if this were true, what is relevant for the judge to make his decision is not always relevant for you to include in your brief. Remember, the reason to make a brief is not to persuade the world that the ultimate decision in the case is a sound one, but rather to aid in refreshing your memory concerning the most important parts of the case.

What facts are relevant to include in a brief? You should include the facts that are necessary to remind you of the story. If you forget the story, you will not remember how the law in the case was applied. You should also include the facts that are dispositive to the decision in the case. For instance, if the fact that a car is white is a determining factor in the case, the brief should note that the case involves a white car and not simply a car. To the extent that the procedural history either helps you to remember the case or plays an important role in the ultimate outcome, you should include these facts as well.

What issues and conclusions are relevant to include in a brief? There is usually one main issue on which the court rests its decision. This may seem simple, but the court may talk about multiple issues, and may discuss multiple arguments from both sides of the case. Be sure to distinguish the issues from the arguments made by the parties. The relevant issue or issues, and corresponding conclusions, are the ones for which the court made a final decision and which are binding. The court may discuss intermediate conclusions or issues, but stay focused on the main issue and conclusion which binds future courts.

What rationale is important to include in a brief? This is probably the most difficult aspect of the case to determine. Remember that everything that is discussed may have been relevant to the judge, but it is not necessarily relevant to the rationale of the decision. The goal is to remind yourself of the basic reasoning that the court used to come to its decision and the key factors that made the decision favor one side or the other.

A brief should be brief! Overly long or cumbersome briefs are not very helpful because you will not be able to skim them easily when you review your notes or when the professor drills you. On the other hand, a brief that is too short will be equally unhelpful because it lacks sufficient information to refresh your memory. Try to keep your briefs to one page in length. This will make it easy for you to organize and reference them.

Do not get discouraged. Learning to brief and figuring out exactly what to include will take time and practice. The more you brief, the easier it will become to extract the relevant information.

While a brief is an extremely helpful and important study aid, annotating and highlighting are other tools for breaking down the mass of material in your casebook. The remainder of this section will discuss these different techniques and show how they complement and enhance the briefing process.

Annotating Cases

Many of you probably already read with a pencil or pen, but if you do not, now is the time to get in the habit. Cases are so dense and full of information that you will find yourself spending considerable amounts of time rereading cases to find what you need. An effective way to reduce this time is to annotate the margins of the casebook. Your pencil (or pen) will be one of your best friends while reading a case. It will allow you to mark off the different sections (such as facts, procedural history, or conclusions), thus allowing you to clear your mind of thoughts and providing an invaluable resource when briefing and reviewing.

You might be wondering why annotating is important if you make an adequate, well-constructed brief. By their very nature briefs cannot cover everything in a case. Even with a thorough, well-constructed brief you may want to reference the original case in order to reread dicta that might not have seemed important at the time, to review the complete procedural history or set of facts, or to scour the rationale for a better understanding of the case; annotating makes these tasks easier. Whether you return to a case after a few hours or a few months, annotations will swiftly guide you to the pertinent parts of the case by providing a roadmap of the important sections. Your textual markings and margin notes will refresh your memory and restore specific thoughts you might have had about either the case in general or an individual passage.

Annotations will also remind you of forgotten thoughts and random ideas by providing a medium for personal comments.

In addition to making it easier to review an original case, annotating cases during the first review of a case makes the briefing process easier. With adequate annotations, the important details needed for your brief will be much easier to retrieve. Without annotations, you will likely have difficulty locating the information you seek even in the short cases. It might seem strange that it would be hard to reference a short case, but even a short case will likely take you at least fifteen to twenty-five minutes to read, while longer cases may take as much as thirty minutes to an hour to complete. No matter how long it takes, the dense material of all cases makes it difficult to remember all your thoughts, and trying to locate specific sections of the analysis may feel like you are trying to locate a needle in a haystack. An annotation in the margin, however, will not only swiftly guide you to a pertinent section, but will also refresh the thoughts that you had while reading that section.

When you read a case for the first time, read for the story and for a basic understanding of the dispute, the issues, the rationale, and the decision. As you hit these elements (or what you think are these elements) make a mark in the margins. Your markings can be as simple as “facts” (with a bracket that indicates the relevant part of the paragraph). When you spot an issue, you may simply mark “issue” or instead provide a synopsis in your own words. When a case sparks an idea — write that idea in the margin as well — you never know when a seemingly irrelevant idea might turn into something more.

Finally, when you spot a particularly important part of the text, underline it (or highlight it as described below).

With a basic understanding of the case, and with annotations in the margin, the second read-through of the case should be much easier. You can direct your reading to the most important sections and will have an easier time identifying what is and is not important. Continue rereading the case until you have identified all the relevant information that you need to make your brief, including the issue(s), the facts, the holding, and the relevant parts of the analysis.

Pencil or pen — which is better to use when annotating? Our recommendation is a mechanical pencil. Mechanical pencils make finer markings than regular pencils, and also than ballpoint pens. Although you might think a pencil might smear more than a pen, with its sharp point a mechanical pencil uses very little excess lead and will not smear as much as you might imagine. A mechanical pencil will also give you the freedom to make mistakes without consequences. When you first start annotating, you may think that some passages are more important than they really are, and therefore you may resist the urge to make a mark in order to preserve your book and prevent false guideposts. With a pencil, however, the ability to erase and rewrite removes this problem.

Highlighting

Why highlight? Like annotating, highlighting may seem unimportant if you create thorough, well-constructed briefs, but highlighting directly helps you to brief. It makes cases, especially the more complicated ones, easy to digest, review and use to extract information.

Highlighting takes advantage of colors to provide a uniquely effective method for reviewing and referencing a case. If you prefer a visual approach to learning, you may find highlighting to be a very effective tool.

If annotating and highlighting are so effective, why brief? Because the process of summarizing a case and putting it into your own words within a brief provides an understanding of the law and of the case that you cannot gain through the process of highlighting or annotating.

The process of putting the case into your own words forces you to digest the material, while annotating and highlighting can be accomplished in a much more passive manner.

What should you highlight? Similar to annotating, the best parts of the case to highlight are those that represent the needed information for your brief such as the facts, the issue, the holding and the rationale.

Unlike annotating, highlighting provides an effective way to color code, which makes referring to the case even easier. In addition, Highlighters are particularly useful in marking off entire sections by using brackets. These brackets will allow you to color-code the case without highlighting all the text, leaving the most important phrases untouched for a more detailed highlight marking or underlining.

Highlighting is a personal tool, and therefore should be used to the extent that highlighting helps, but should be modified in a way that makes it personally time efficient and beneficial. For instance, you might combine the use of annotations in the margins with the visual benefit of highlighting the relevant text. You may prefer to underline the relevant text with a pencil, but to use a highlighter to bracket off the different sections of a case. Whatever you choose to do, make sure that it works for you, regardless of what others recommend. The techniques in the remainder of this section will describe ways to make full use of your highlighters.

First, buy yourself a set of multi-colored highlighters, with at least four, or perhaps five or six different colors. Yellow, pink, and orange are usually the brightest. Depending on the brand, purple and green can be dark, but still work well. Although blue is a beautiful color, it tends to darken and hide the text.

Therefore we recommend that you save blue for the elements that you rarely highlight.

For each different section of the case, choose a color, and use that color only when highlighting the section of the case designated for that color. Consider using yellow for the text that you tend to highlight most frequently. Because yellow is the brightest, you may be inclined to use yellow for the Conclusions in order to make them stand out the most. If you do this, however, you will exhaust your other colors much faster than yellow and this will require that you purchase an entire set of new highlighters when a single color runs out because colors such as green are not sold separately. If instead you choose to use yellow on a more frequently highlighted section such as the Analysis, when it comes time to replace your yellow marker, you will need only to replace your yellow highlighter individually. In the personal experience on one of the authors, the sections of cases that seemed to demand the most highlighter attention were the

Facts and the Analysis, while the Issues and Holdings demanded the least. Other Considerations and

Procedural History required lots of highlighting in particular cases although not in every case.

Experiment if you must, but try to choose a color scheme early on in the semester and stick with it. That way, when you come back to the first cases of the semester, you will not be confused with multiple color schemes. The basic sections of a case for which you should consider giving a different color are:

• Procedural History

• Issue (and questions presented)

• Holding (and conclusions)

• Analysis (rationale)

• Other Considerations (such as dicta)

Not all of these sections demand a separate color. You may find that combining Facts and Procedural History or Issues and Holdings works best. Furthermore, as mentioned above, some sections may not warrant highlighting in every case (e.g., dicta probably do not need to be highlighted unless they are particularly important). If you decide that a single color is all that you need, then stick to one, but if you find yourself highlighting lots of text from many different sections, reconsider the use of at least a few different colors. Highlighters make text stand out, but only when used appropriately. The use of many colors enables you to highlight more text without reducing the highlighter’s effectiveness. Three to four colors provides decent color variation without the cumbersomeness of handling too many markers.

Once you are comfortable with your color scheme, determining exactly what to highlight still may be difficult. Similar to knowing what to annotate, experience will perfect your highlighting skills. Be careful not to highlight everything, thus ruining your highlighters’ effectiveness; at the same time, do not be afraid to make mistakes.

Now that we have covered the basics of reading, annotating, highlighting, and briefing a case, you are ready to start practicing. Keep the tips and techniques mentioned in this chapter in mind when you tackle the four topics in the remainder of this book. If you have difficultly, refer back to this chapter to help guide you as you master the case method of study and the art of using the common law.

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• Forms of Gender Discrimination
• Ethics of Care
• Case Studies for Professional Ethics
• Case Studies for Role Morality
• Additional Exercises
• Defining Organized Crime
• Definition in Convention
• Similarities & Differences
• Activities, Organization, Composition
• Thinking Critically Through Fiction
• Excerpts of Legislation
• Research & Independent Study Questions
• Legal Definitions of Organized Crimes
• Criminal Association
• Definitions in the Organized Crime Convention
• Criminal Organizations and Enterprise Laws
• Enabling Offence: Obstruction of Justice
• Drug Trafficking
• Wildlife & Forest Crime
• Counterfeit Products Trafficking
• Falsified Medical Products
• Trafficking in Cultural Property
• Trafficking in Persons
• Case Studies & Exercises
• Extortion Racketeering
• Loansharking
• Links to Corruption
• Bribery versus Extortion
• Money-Laundering
• Liability of Legal Persons
• How much Organized Crime is there?
• Alternative Ways for Measuring
• Measuring Product Markets
• Risk Assessment
• Key Concepts of Risk Assessment
• Risk Assessment of Organized Crime Groups
• Risk Assessment of Product Markets
• Risk Assessment in Practice
• Positivism: Environmental Influences
• Classical: Pain-Pleasure Decisions
• Structural Factors
• Ethical Perspective
• Crime Causes & Facilitating Factors
• Models and Structure
• Hierarchical Model
• Local, Cultural Model
• Enterprise or Business Model
• Groups vs Activities
• Networked Structure
• Jurisdiction
• Investigators of Organized Crime
• Controlled Deliveries
• Physical & Electronic Surveillance
• Undercover Operations
• Financial Analysis
• Use of Informants
• Rights of Victims & Witnesses
• Role of Prosecutors
• Adversarial vs Inquisitorial Legal Systems
• Mitigating Punishment
• Granting Immunity from Prosecution
• Witness Protection
• Aggravating & Mitigating Factors
• Sentencing Options
• Alternatives to Imprisonment
• Death Penalty & Organized Crime
• Backgrounds of Convicted Offenders
• Confiscation
• Confiscation in Practice
• Mutual Legal Assistance (MLA)
• Extradition
• Transfer of Criminal Proceedings
• Transfer of Sentenced Persons
• Module 12: Prevention of Organized Crime
• Adoption of Organized Crime Convention
• Historical Context
• Features of the Convention
• Related international instruments
• Conference of the Parties
• Roles of Participants
• Structure and Flow
• Recommended Topics
• Background Materials
• What is Sex / Gender / Intersectionality?
• Knowledge about Gender in Organized Crime
• Gender and Organized Crime
• Gender and Different Types of Organized Crime
• Definitions and Terminology
• Organized crime and Terrorism - International Legal Framework
• International Terrorism-related Conventions
• UNSC Resolutions on Terrorism
• Organized Crime Convention and its Protocols
• Theoretical Frameworks on Linkages between Organized Crime and Terrorism
• Typologies of Criminal Behaviour Associated with Terrorism
• Terrorism and Drug Trafficking
• Terrorism and Trafficking in Weapons
• Terrorism, Crime and Trafficking in Cultural Property
• Trafficking in Persons and Terrorism
• Intellectual Property Crime and Terrorism
• Kidnapping for Ransom and Terrorism
• Exploitation of Natural Resources and Terrorism
• Review and Assessment Questions
• Research and Independent Study Questions
• Criminalization of Smuggling of Migrants
• UNTOC & the Protocol against Smuggling of Migrants
• Offences under the Protocol
• Financial & Other Material Benefits
• Aggravating Circumstances
• Criminal Liability
• Non-Criminalization of Smuggled Migrants
• Scope of the Protocol
• Humanitarian Exemption
• Migrant Smuggling v. Irregular Migration
• Migrant Smuggling vis-a-vis Other Crime Types
• Other Resources
• Assistance and Protection in the Protocol
• International Human Rights and Refugee Law
• Vulnerable groups
• Positive and Negative Obligations of the State
• Identification of Smuggled Migrants
• Participation in Legal Proceedings
• Role of Non-Governmental Organizations
• Smuggled Migrants & Other Categories of Migrants
• Short-, Mid- and Long-Term Measures
• Criminal Justice Reponse: Scope
• Investigative & Prosecutorial Approaches
• Different Relevant Actors & Their Roles
• Testimonial Evidence
• Financial Investigations
• Non-Governmental Organizations
• ‘Outside the Box’ Methodologies
• Intra- and Inter-Agency Coordination
• Admissibility of Evidence
• International Cooperation
• Exchange of Information
• Non-Criminal Law Relevant to Smuggling of Migrants
• Administrative Approach
• Complementary Activities & Role of Non-criminal Justice Actors
• Macro-Perspective in Addressing Smuggling of Migrants
• Human Security
• International Aid and Cooperation
• Migration & Migrant Smuggling
• Mixed Migration Flows
• Social Politics of Migrant Smuggling
• Vulnerability
• Profile of Smugglers
• Role of Organized Criminal Groups
• Humanitarianism, Security and Migrant Smuggling
• Crime of Trafficking in Persons
• The Issue of Consent
• The Purpose of Exploitation
• The abuse of a position of vulnerability
• Indicators of Trafficking in Persons
• Distinction between Trafficking in Persons and Other Crimes
• Misconceptions Regarding Trafficking in Persons
• Root Causes
• Supply Side Prevention Strategies
• Demand Side Prevention Strategies
• Role of the Media
• Safe Migration Channels
• Crime Prevention Strategies
• Monitoring, Evaluating & Reporting on Effectiveness of Prevention
• Trafficked Persons as Victims
• Protection under the Protocol against Trafficking in Persons
• Broader International Framework
• State Responsibility for Trafficking in Persons
• Identification of Victims
• Principle of Non-Criminalization of Victims
• Criminal Justice Duties Imposed on States
• Role of the Criminal Justice System
• Current Low Levels of Prosecutions and Convictions
• Challenges to an Effective Criminal Justice Response
• Rights of Victims to Justice and Protection
• Potential Strategies to “Turn the Tide”
• State Cooperation with Civil Society
• Civil Society Actors
• The Private Sector
• Comparing SOM and TIP
• Differences and Commonalities
• Vulnerability and Continuum between SOM & TIP
• Labour Exploitation
• Forced Marriage
• Other Examples
• Children on the Move
• Protecting Smuggled and Trafficked Children
• Protection in Practice
• Children Alleged as Having Committed Smuggling or Trafficking Offences
• Basic Terms - Gender and Gender Stereotypes
• International Legal Frameworks and Definitions of TIP and SOM
• Global Overview on TIP and SOM
• Gender and Migration
• Key Debates in the Scholarship on TIP and SOM
• Gender and TIP and SOM Offenders
• Responses to TIP and SOM
• Use of Technology to Facilitate TIP and SOM
• Technology Facilitating Trafficking in Persons
• Technology in Smuggling of Migrants
• Using Technology to Prevent and Combat TIP and SOM
• Privacy and Data Concerns
• Emerging Trends
• Demand and Consumption
• Supply and Demand
• Implications of Wildlife Trafficking
• Legal and Illegal Markets
• Perpetrators and their Networks
• Locations and Activities relating to Wildlife Trafficking
• Environmental Protection & Conservation
• CITES & the International Trade in Endangered Species
• Organized Crime & Corruption
• Animal Welfare
• Criminal Justice Actors and Agencies
• Criminalization of Wildlife Trafficking
• Challenges for Law Enforcement
• Investigation Measures and Detection Methods
• Prosecution and Judiciary
• Wild Flora as the Target of Illegal Trafficking
• Purposes for which Wild Flora is Illegally Targeted
• How is it Done and Who is Involved?
• Consequences of Harms to Wild Flora
• Terminology
• Background: Communities and conservation: A history of disenfranchisement
• Incentives for communities to get involved in illegal wildlife trafficking: the cost of conservation
• Incentives to participate in illegal wildlife, logging and fishing economies
• International and regional responses that fight wildlife trafficking while supporting IPLCs
• Mechanisms for incentivizing community conservation and reducing wildlife trafficking
• Critiques of community engagement
• Other challenges posed by wildlife trafficking that affect local populations
• Global Podcast Series
• Apr. 2021: Call for Expressions of Interest: Online training for academics from francophone Africa
• Feb. 2021: Series of Seminars for Universities of Central Asia
• Dec. 2020: UNODC and TISS Conference on Access to Justice to End Violence
• Nov. 2020: Expert Workshop for University Lecturers and Trainers from the Commonwealth of Independent States
• Oct. 2020: E4J Webinar Series: Youth Empowerment through Education for Justice
• Interview: How to use E4J's tool in teaching on TIP and SOM
• E4J-Open University Online Training-of-Trainers Course
• Teaching Integrity and Ethics Modules: Survey Results
• Grants Programmes
• E4J MUN Resource Guide
• Library of Resources
• Module 11: International Cooperation
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E4J University Module Series: Organized Crime

Module 11: international cooperation to combat transnational organized crime, introduction and learning outcomes.

• Mutual legal assistance (MLA)
• Transfer of criminal proceedings
• Transfer of sentenced persons

Case studies and exercises

• Thinking critically through fiction
• Excerpts of legislation

Possible class structure

Core reading, advanced reading, student assessment.

• Review and assessment questions
• Research and independent study questions

Additional teaching tools

Published in May 2018

Regional Perspective: Pacific Islands Region - added in November 2019

  This module is a resource for lecturers   

Case study 1 (mutual legal assistance in a case of online child sexual exploitation).

Please note that the text below involves disturbing subject matter. A disclosure of the content of this case study may cause uncomfortable feeling or emotional distress.

The defendant is an Israeli citizen who met the complainants, a woman and her 10 years old daughter who lived in Georgia, through the internet. The defendant persisted in on-line relations with the mother, as well as later upon his arrival to Georgia, where he met her and the daughter, bought the child gifts, went out with them and wired money for them from Israel. Later, according to the indictment, the defendant arrived to a hotel in Tbilisi and asked the mother and daughter to join him. The defendant and the mother reached an agreement according to which he will pay her USD 100 per month for allowing him to use her daughter's body for the production of pornographic material and conducting sexual acts.

According to this agreement, in two cases, the defendant arrived to the hotel in Tbilisi and the mother brought the daughter there. In the hotel room, the defendant took obscene photos of the minor and sexually assaulted her, while visually recording the acts with several cameras belonging to him and the mother.

The defendant gave the mother a camera and a laptop so she could produce paedophilic photos of the minor at his will. The mother emailed the photos to the defendant and he paid her. Later on, the defendant published and sold the photos and films. Additionally, the defendant held in his possession many other obscene materials of other minors, which he also published.

The submission of the indictment was in cooperation with the Georgian authorities. The Georgian authorities arrested the mother and indicted her on charges of trafficking in persons. The evidence in the case against the defendant was based on materials that were collected in Israel as well as in Georgia. Both the mother and the daughter were interviewed and gave written statements. The indictment was submitted in Israel with the approval of the Deputy State Attorney (Criminal Matters) since some of the offenses, for example the sex offenses, are considered foreign offenses conducted in Georgia.

The Court ruled that according to the strong evidence in this case, it was proven that the minor was passed from hand to hand, from her mother to the defendant, as if she was an object, and therefore the element of "a transaction in a person," as required by the offense of trafficking in persons according to Israeli law, was met. The daughter was objectified. According to the Court, the objectification, and making use of a person, need not to be permanent and does not even require a long period of time but rather can occur for a short period of time.

Also, the transaction in a person, and the objectification of a person, do not need to involve the displacement of the victim from their place of residence, as long as they are done for one of the purposes mentioned in the offense, in this case "causing him/her to participate in an obscene publication or in an obscene performance and or subjecting him/her to a sex offense."

Additionally, the Court decided that the linkage between the money transferred to the mother by the defendant and the "usage" of the minor was proven beyond reasonable doubt, even though this is not an element of the offense that needed to be proven.

As for the consent, which is also not an element of the crime, it was proven that the minor protested several times, which only reinforced the element of objectification of her body by her mother and the defendant.

Finally, the Court accepted the State Attorney's Office' argument, according to which the crime of trafficking in persons involves a wide range of situations that are not necessarily contingent upon a place, consent nor a compensation, and that clearly the circumstances of the case shows that a transaction was made between the mother of the victim and the defendant, a transaction whose purpose was to make use of the minor's body as an object, both for the defendant's sexual desires and for trading in the minor's photos

Case-related file

• UNODC SHERLOC Case Law Database UNODC No.: ISR017

Significant feature

• The Georgian authorities arrested the mother and indicted her on trafficking in persons charges, the indictment was submitted in Israel and the defendants were tried by a Tel Aviv-Jaffa District Court. The evidence in the case against the defendant was based on materials that were collected both in Israel and Georgia.

Discussion questions

• What are the legal foundations for mutual legal assistance between Georgia and Israel?
• What kind of international cooperation did the case require?
• How did they facilitate the prosecution of this case?

Case Study 2 (Mutual legal assistance in a drug trafficking case)

In 2004, the defendant José, together with BB, CC and DD, decided to start introducing narcotic drugs, notably cocaine, in Spain. According to this criminal plan, BB, CC and DD, residing in Brazil, provided for the transportation of cocaine to Portugal, where the defendant José would collect and transport drugs and, subsequently, sell them in Spain.

In accordance with this plan, on 7 July 2004, the ship North Express moored in the Port of Leixões, Matosinhos, and unloaded the containers CMCU 210514.0 and GLDU 223878-7, which had been shipped in the port of Santos, Brazil, on 1 June 2004. The container CMCU 210514-0 contained 8 packages, each of them with the approximate weight of one kilogram and the container, GLDU 223878-7, contained 2,231.615 kilograms of cocaine, which were hidden inside boxes of ceramic floor tiles.

The defendant, in cooperation with BB, CC and DD, bought several companies and opened in his name, and on behalf of those companies, different bank accounts, notably in Madeira's offshore.

The defendant José, one of the partners of Company-D, with an office in Rua Estela in São Paulo, Brazil, transferred to an account held by Company-C a large sum of USA dollars. Company-C, which has never engaged in any activities, made several bank transfers of large sums of USA dollars. The defendant José had the sole and exclusive power to operate bank accounts and was ready to hold and keep available the amounts in cash held therein.

The investigation into the case was carried out by Portugal's Criminal Investigation Police (Polícia Judiciária). They made use of phone interceptions, surveillance, searches and seizures, and cooperated with the Brazilian homologues. A summary financial investigation was also carried out. During the inquiry, several phone interceptions took place according to arts. 187 et seq. of the Code of Criminal Procedure of Portugal. Searches were also carried out according to art. 174 et seq. of the same Code. These were aimed not only at collecting evidence on the perpetration of the offence but also on the seizure of instrumentalities, proceeds and advantages deriving from them.

The competent Spanish and Brazilian authorities collaborated with the investigation in Portugal. They made available all the information needed for the investigation carried out in Portugal. Police information was also requested from Italian, Swedish, Chinese, American, Swiss and British authorities, notably on the commercial activities developed in those countries by the defendant, as well as by companies directly or indirectly run by him.

During the investigation, after the seizure of the narcotic drugs, a European Arrest Warrant was issued in relation to the defendant. Such warrant eventually was executed in Spain on 9 July 2004 and the defendant was surrendered to national authorities on the 23rd of the same month.

The warrant was issued on the basis of articles 21, n.1 and 24 (b), (c) and (j) (aggravated drug trafficking) of Portugal's Decree-Law 15/93, of 22 January; article 23, n.1 (conversion, transfer or concealment of property or proceeds) and article 28, n.1 (criminal organizations) from the same legal text. In fact, although at the beginning of the inquiry the Public Prosecutor had directed the investigation towards the criminal organization offence as well, he did not use that offence because he did not find evidence of its perpetration.

Several letters of request were also sent to the Spanish, Brazilian and American authorities asking them to carry out several steps of the inquiry, notably house searches, searches in offices, collection of bank information, interrogation of suspects and witness hearing, inventory of movable and immovable property directly or indirectly held by the defendant in those countries, and seizure of bank account deposits.

The main difficulty was in making mutual legal assistance compatible with procedural deadlines, in particular the deadline for filing charges (accusation). In fact, the letters of request sent to Spain, Brazil and the USA were returned after the maximum time-limit for remand in custody during the prosecutorial phase had expired; thus, the charges were brought even before the letters of request were received back, without reflecting the information resulting therefrom.

The court of first instance sentenced the defendant to 14 years of  imprisonment  for aggravated drug trafficking, provided for and punished by articles 21, n. 1 and 24 (b) and (c) of Decree-Law 15/93, of 22 January. In addition, the instrumentalities of crime and the amounts deposited in accounts held either by the defendant or by companies, of which he was the main beneficiary were first seized and then confiscated. The link between these amounts and the criminal charges was not proven, but the Supreme Court of Justice considered that under Act. No. 5/2002 (Establishing Measures for the Combat against Organised Crime and Economic and Financial Crime) of 11 January, 2002, such amounts should be deemed to derive from the criminal activity.

• UNODC SHERLOC Case Law Database. UNODC No.: PRTx002 .

Significant features

• Application of the European Arrest Warrant
• Usage of letters of request
• What are the benefits of mutual legal assistance in facilitating investigation and prosecution of drug trafficking cases?
• What are the functions of letters of request and how were they used in this case?
• What are the grounds of the European Arrest Warrant in this case?

Case Study 3 (Extradition refusal on grounds of inhuman treatment)

In 2016, the Guardian reported a case in which British magistrates refused to extradite to France a man allegedly involved in cocaine smuggling and firearms offences on the grounds that conditions in France's overseas prisons, namely in Guadeloupe and Martinique, are inhumane and degrading. The judgement led to the release on bail of Kurtis Richards, 54, who had been in Wandsworth prison for almost a year after being arrested at Gatwick airport. Richards, a citizen of Dominica in the West Indies, was accused by France in the arrest warrant of smuggling approximately 80 kg of cocaine, shotgun, and two hunting guns into Guadeloupe.

Richard's legal representative argued that prisons of the French West Indies fail to meet the minimum requirements for detention facilities for reasons of poor sanitation and hygiene as well as prison overcrowding and unacceptable disciplinary measures used by guards against inmates.

Both Guadeloupe and Martinique have the status of overseas administrative territories of France. As argued by the defence and supported by the district judge Quentin Purdy, the application of the European Arrest Warrant (EAW) is not to be automatically applied. France, including its overseas territories, must demonstrate commitment to human rights and fully comply with art. 3 of the European Convention on Human Rights, which prohibits torture or inhuman and degrading treatment.

• Bowcott, Owen. (2014). UK court rejects extradition request due to French West Indies jail conditions. The Guardian , May 7, 2014.
• Limits to the application of the European Arrest Warrant (EAW)

In making legislative changes and in carrying out extradition, the intention of the Organized Crime Convention is to ensure the fair treatment of those whose extradition is sought and the application to them of all existing rights and guarantees applicable in the State party from whom extradition is requested.

• What are the minimum human rights standards and guarantees in international law relevant for extradition cases?
• How does the Organized Crime Convention ensure human rights protection and guarantees?

Case Study 4 (Hacker "Kolypto" extradited from Norway)

Mark Vartanyan, also known as "Kolypto", a Russian national, was charged with developing and maintaining the "Citadel" malware toolkit. He was extradited to the USA from Norway and charged with computer fraud in March 2016. According to information presented in court, Citadel was a malware toolkit designed to infect computer systems and steal financial account credentials and personally identifiable information from victim computer networks. Citadel was offered for sale on invite-only through Russian-language internet forums frequented by cybercriminals. Users of Citadel targeted and exploited the computer networks of major financial and government institutions around the world. According to estimates, Citadel infected approximately 11 million computers worldwide and is responsible for over USD 500 million in losses.

Vartanyan lived first in Ukraine and then Norway. He allegedly engaged in the development and distribution of Citadel and uploaded numerous electronic files that consisted of Citadel malware, components, updates and patches, as well as customer information, all with the intent of improving Citadel's illicit functionality. The case led to Vartanyan's guilty sentence and a punishment of five years in prison.

Case-related files

• U.S. Department of Justice. (2017). Press Release: Russian Hacker "Kolypto" Extradited from Norway. March 14 .
• U.S. Department of Justice. (2017). Press Release: Russian Citizen who Helped Develop the "Citadel" Malware Toolkit is Sentenced. July 19 .
• On what grounds did the United States made an extradition request of Mark Vartanyan from Norway?
• What other countries might have reasons to make extradition requests for this suspect?
• What kind of evidence needed to be collected from outside the United States? Is seizure and sharing of computer hardware and data included in mutual legal assistance agreements between the United States and Norway?

Case Study 5 (Dotcom et al. v. the United States)

In 2005, Kim Dotcom developed a business under the name "Megaupload." This business enabled users to upload files for storage in the cloud on one of the many servers leased by Megaupload. By January 2012, Megaupload claimed to have over 60 million registered users. It was said to be the thirteenth most frequently visited site on the Internet attracting an average of 50 million visits daily and more than one billion visitors in total.

Users could upload videos to Megaupload and obtain a link which would provide access to it. A user could repeatedly upload the same video and obtain multiple links. The user could then choose to share these links with others, including through third party websites, enabling them to access the video using Megavideo. Megaupload was not responsible for these linking sites and only the user could determine whether to make a link available to others. However, the United States contends that Megaupload encouraged this file sharing practice by offering financial rewards and incentives to users who uploaded files that attracted high numbers of views or downloads. Anyone gaining access to a file stored on Megaupload through a link would be limited to viewing approximately 72 minutes of content, which is less than the length of most motion pictures. The viewer was then prompted to subscribe to Megaupload as a "premium user" in order to continue watching. Premium users were also able to view Mega-hosted videos embedded on third party linking websites. Subscriptions from premium users provided the main source of revenue to the Mega group, estimated by the United States to be approximately USD 150 million. The other principal source of revenue was from online advertising shown prior to the commencement of each video. The United States contends that total advertising revenue exceeded USD 25 million.

In March 2010, the Motion Picture Association of America made a complaint of criminal copyright infringement arising out of the operations of Megaupload, leading to a lengthy investigation by the Federal Bureau of Investigation.

On 5 January 2012, the Grand Jury returned an initial indictment against the appellants. The United States Court immediately issued arrest warrants and made restraining orders in respect of all of the appellants' assets worldwide, including real and personal property in Hong Kong, New Zealand, Germany, the Netherlands and Australia. Prosecutors sought to seize an extensive list of assets, including millions of dollars in various seized bank accounts in Hong Kong and New Zealand, multiple cars, four jet skis, the Dotcom mansion, several luxury cars, two 108-inch TVs, three 82-inch TVs, a USD 10,000 watch, and a photograph by Olaf Mueller worth over USD 100,000. On 20 January 2012, the United States took control of the website domain name and database service of Megaupload and its associated websites, effectively terminating the entire operation. The websites were replaced with an anti-piracy warning issued by the United States Department of Justice in conjunction with the Federal Bureau of Investigation and the National Intellectual Property Rights Coordination Centre.

At a hearing in the High Court on 28 August 2012, Justice Judith Potter allowed Dotcom to withdraw approximately NZD 6 million (USD 4.8 million) from his seized funds. He was also allowed to sell nine of his cars. The amount released was to cover USD 2.6 million in existing legal bills, USD 1 million in future costs, and another USD 1 million in rent on his New Zealand mansion. In April 2014, Megaupload launched legal action against the Hong Kong government, applying for the restraining order to be set aside while accusing the Secretary of Justice of procedural failings when the application for seizure was made.

After several years of legal wrangling, involving Supreme Court cases and multiple delays in the proceedings, extradition proceedings finally got underway in an Auckland court, New Zealand, on 21 September 2015. In February 2017, the New Zealand High Court rejected earlier defence appeals and endorsed the extradition to the United States. Justice Murray Gilbert of the High Court of New Zealand ruled that while he agreed with one of Dotcom's defence attorney's primary argument that "online communication of copyright protected works to the public was not a criminal offense in New Zealand," Dotcom and his co-defendants were still eligible for extradition based on their conduct which can be interpreted as the offense of conspiracy to defraud in terms of art II.16, referring to a particular section of the extradition treaty between New Zealand and the United States.

• UNODC SHERLOC Case Law Database.No.: NZLx006
• United States v. Batato et al. United States Court of Appeals .
• Interview with Dotcom's Lawyer Rothken .
• Kim Dotcom Exclusive Interview "I will fight this and win" (2012) .
• Russia Today. (2014). Kim Dotcom: The Man Behind Megaupload .
• Farivar, Cyrus. (2017). New Zealand appeals court upholds Kim Dotcom extradition ruling. Ars Technica, February 20 .
• Extraterritorial jurisdiction
• Application of the double (dual) criminality principle
• Elements of an "extraditable offense"
• What principles of extradition apply to the extradition of Kim Dotcom to the United States?
• Kim Dotcom's extradition defence team argued that none of the alleged charges against the Megaupload founder were enough to extradite him to the United States. "I'm no longer getting extradited for Copyright. We won on that," Dotcom tweeted after the ruling against him. " I'm now getting extradited for a law that doesn't even apply ." What were the grounds of the defence position? On what grounds did the court in New Zealand reject the defence team's appeal?

Case Study 6 (Extradition of Ze'ev Rosenstein)

On 27 December 2004, the United States Government relayed a request to the Government of the State of Israel for the extradition of appellant Ze'ev Rosenstein to the US. The request included a detailed account of Rosenstein's alleged crime, in which-according to the prosecution authorities in the USA-he conspired in Israel to import ecstasy pills (methylenedioxymethamphetamine) into the USA and to distribute it there.

The essence of the allegations in the extradition request was that in the late 1990s Rosenstein together with Baruch Dadush and Zvi Fogel began trafficking in drugs. The extradition request claims that Rosenstein was involved in three drug deals of wide scope. The first took place in 1999, when 135,000 MDMA pills were bought in Holland and brought to their destination in the United States via Germany, hidden in motor vehicles. According to the USA prosecution authorities, Rosenstein funded the purchase of 32,000 of these pills. After Dadush and Fogel sold the drugs in the USA on Rosenstein's behalf, Fogel transferred part of the profits to Dadush, USD 90,000 of which Dadush gave Rosenstein, keeping the same amount for himself.

In the same year another drug deal was carried out. That deal led to the distribution of 305,000 pills of the drug in the US, 50,000 of which Rosenstein purchased for a total of USD 50,000, which he paid Fogel via Dadush. This time the drug was transported while hidden in copper scrap and computer parts. Dadush intended to travel to the US, accompanied by his brother Alain, in order to coordinate the distribution of the drug, but he was refused entry and returned to Israel. As for Alain, he entered the USA, and followed Dadush's instructions in order to distribute the pills in New York City. When the job was finished, the profits were transferred to Fogel in Israel. The latter transferred the relevant part of the profits to Dadush, out of which Rosenstein's share was paid to him. According to the prosecution authorities, an additional shipment of drugs was arranged in 2001.

In November 2004, as a result of an extended covert investigation efforts on the part of American law enforcement agencies the Miami police and the Drug Enforcement Agency (DEA) seized about 700,000 ecstasy pills in a Manhattan apartment. Further investigation on the Israeli side led to Rosenstein's arrest. The USA wanted Rosenstein for the crime of conspiracy to import large shipments of ecstasy pills with the aim to distribute them in the country (an offense pursuant to 21 USC § 841(a)(1), 841(b)(1)(c) and 846), and conspiracy to import a controlled substance into the United States (an offense pursuant to sections 952(a), 960(b)(3) and 963 of that law). The State of Israel, in which Rosenstein was detained and in which the conspiracy was made, was being asked, on the basis of the extradition treaty between the two countries, to extradite him.

The District Court of Israel emphasized that in crimes involving a prominent international dimension, including drug offenses, the centre of gravity of the offense should not be identified as the physical place in which it was committed, since that place is likely to be random and unimportant. Instead, weight should be given to the place in which the offense was consummated. The court further stressed that in such offenses, the territorial principle should be given little weight, and the interests regarding the reciprocity of extradition between States, and the need for international cooperation to rout organized crime, should be preferred. The court concluded that Rosenstein's extradition raised no concern of violation of public policy or due process, and did not impair his ability to defend himself against the charges against him.

Rosenstein's defence appealed the decision. Rosenstein argued that the dominant link of the offenses with which he was charged was to Israel and not to the United States. Considering, further, that the offender was an Israeli citizen and resident, who was not a fugitive from justice in another country and who could be tried in Israel, Rosenstein claimed that extradition served no worthy purpose and was not proportional. He further contended that the target of the conspiracy to import and distribute controlled substances and the personal link of the victims of the crime could not outweigh the principle of territorial jurisdiction.

Rosenstein further argued that his extradition would violate his procedural and substantive rights as a defendant in a criminal case. He would not have the benefit of being judged in his natural environment, and language difficulty and the difference between the Israeli and American legal systems could compromise his defence and his rights to due process. The argument referred mainly to the jury system, which was a different decision-making system than the one in Israeli law.

The Supreme Court of Israel denied the appeal in 2006, reaffirming his extradition to stand trial in the United States-a precedent-setting decision that made Rosenstein one of very few Israelis to ever be extradited for prosecution in another country. In accordance with the extradition treaty between Israel and the US, he was nevertheless returned to Israel to serve his US-imposed sentence in an Israeli prison.

• Supreme Court of Israel. CrimA 4596/05 Ze'ev Rosenstein v. The State of Israel .
• Extradition and return to the country of citizenship to serve a sentence
• What are the key features of the transnational conspiracy and its operations in the black market for ecstasy in which Rosenstein was involved? What role did Rosenstein play in ecstasy trafficking and distribution?
• How many crimes were involved in the case? How many countries could make an extradition claim to prosecute Rosenstein (and his associates)?
• What principles of extradition discussed in the Module can you identify?
• What grounds did the Rosenstein defence team present to claim against his extradition to the United States?
• What are the benefits and disadvantages of prosecuting Rosenstein in the US? What are the reasons for the arrangement between Israel and the United States to return Rosenstein to serve his sentence in Israel?

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Explore case studies of previous cases which Allan Rouben has represented. Find examples of case studies in all focus areas of law.

Legroulx v. Pitre: Striking Jury Notice, Charter of Rights and Freedoms and Rules of Civil Procedure

Background: A complicated action was proceeding in Ottawa before Justice Denis Power and a jury. The plaintiff’s injuries, arising out of a car accident, raised difficult issues of causation and required that complex medical evidence be heard. The plaintiff’s lawyers considered the medical issues were too complex for the jury and brought a motion to …

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Lucia’s Case: Appeal, Civil Litigation, Jurisdiction and Forum non Conveniens

Background: Lucia resides in Ontario with her family, and was involved in a car accident in Michigan. She brought suit in the Ontario Superior Court of Justice against the driver and owner of the vehicle, as well as her own insurer given that the Michigan defendants claimed the accident was caused by an unknown vehicle. …

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Patrizia’s Case: Appeals, Civil Litigation, Negligence and Minimum Maintenance Standards

Background: Patrizia was driving to work early on a snowy morning in April. The roads in Milton were snow covered and slippery. Weather forecasts from the day before predicted an 80% chance of snow, yet the Town of Milton had not scheduled an evening patrol to monitor the roads and clear the snow. Tragically, as …

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F.A.’s Case: Criminal Law, Appeals, Sexual Assault and Ineffective Assistance of Counsel

Background: F.A. worked in a medical facility with a much younger female co-worker. There was flirting between them. They went out together one evening, meeting up in a park and later driving around in F.A.’s car. He said he had a surprise for her at the office so they parked close by. Instead of going …

F.A.’s Case: Criminal Law, Appeals, Sexual Assault and Ineffective Assistance of Counsel Read More »

Clare’s Case: Labour Law, Duty of Fair Representation and Ontario Labour Relations Board

Background: Clare had been working for General Motors for 23 years before his termination. The company claimed that he had threated a supervisor after being told that a urine sample he had given was diluted. Clare denied the allegation and asked the Union, Canadian Auto Workers Local 222, to grieve the termination. He communicated frequently …

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Home » Criminal Defence Lawyers » Criminal Law Case Studies

Criminal Law Case Studies

Real cases. real results..

We have published over 500 criminal law case studies.

All cases were handled by our expert criminal lawyers and range from contested matters, appeals, bail applications, and pleas of guilty for both indictable and summary offences. They were heard in different County Courts, Magistrates’ Courts, and Children’s Courts throughout the state of Victoria, including the Supreme Court and Court of Appeal.

All of the criminal law case studies in this site are anonymised. They are provided to give you an idea of the scope of work that we cover, as well as information on some penalties imposed for different criminal cases.

This site has plenty of case studies with interesting results. Our lawyers have defended cases wherein the Police and Prosecution were ordered by the Court to pay for all the legal costs incurred by our clients for their legal defence. Such as the case for this  Dismissed Charge of Rape  and  Acquittal for Multiple Assault Charges .

Many cases especially highlight the court’s recognition of the need for a defendant’s rehabilitation despite the gravity and recurrence of committed offences. A young client was given a  CCO without conviction for trafficking drugs and weapons charges . A woman who faces court for  further offending and multiple breaching offences  was ultimately deemed better by a Magistrate to continue engaging in CCO instead of a longer prison term.

It must be noted that our criminal law case studies are, naturally, generally where a lawyer has obtained a good result for a client. They should however not be used by you to think that if you are charged with the same offence, you will get the same penalty.

Criminal Law Case Study Categories

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Famous British Legal Cases You Should Know About

These iconic law cases will follow you throughout your legal career.

In the vast sea of UK case law examples, there are a few that stand out. Whether it be due to their unexpected nature, or historical importance, these are some of the cases that will predominate in a law student’s education. From criminal law cases to commercial law cases – these case law examples will consolidate your passion for law.

Famous Supreme Court Cases in the UK

Donoghue v stevenson [1932] – the snail-flavoured ginger beer.

This case is documented as the first to establish the modern law of negligence . The law surrounding negligence at the time was only considered valid in the instance of a contract. In this case, a contract had not been established.

The claimant, Donoghue, brought a claim for personal injury against the manufacturer of a bottle of ginger beer. Unknown to her, that specific bottle included the remnants of a decomposed snail. Donoghue fell ill as a result with severe gastroenteritis.

Donoghue v Stevenson brought about the rule, penned by Lord Atkin, that you are “to take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour.” However, even more famously, the case brought about the so-called ‘neighbour principle’. This principle sees a ‘neighbour’ being anyone that was closely affected by one’s actions, and that should have been considered when these actions were carried out.

The case had a huge significance in the advancement of British tort law . The government saw the case as an issue of public health and tightened the laws around it as a result.

R v R [1991] – Marriage Is No Excuse

This relatively recent supreme court case is perhaps most memorable because of its shock factor. In the modern-day rise of the #MeToo movement and support for survivors of sexual crime, it is almost impossible to believe that it was not until the early 90s that the matrimonial exception to rape was removed from law. This meant that from 1991 onwards, it was no longer a defence to ra case that, the conception that “by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances” was (and is of course still) “quite unacceptable.”

This change in rape law came after centuries of unpunished sexual crimes. The allowance of marital rape under English Common law is believed to date all the way back to 1736 Sir Matthew Hale’s Historia Placitorum Coronæ. In it, Hale stated: “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract”.

Carlill v Carbolic Smoke Ball Company [1892] – Human Guinea Pigs

This case became the benchmark for all future contract law and consumer protection cases. In 1891, England was being swept by the Russian flu, a deadly subtype of Influenza. But suddenly, there was hope – under the name of the Carbolic Smoke Ball Company.

The Carbolic Ball consisted of a rubber ball filled with powdered carbolic acid, and a tube which the user would inhale through. When the ball was squeezed the powder would enter a user’s nostrils, flushing out any infection, according to its inventor. But, as with any drug, the company first needed to text the efficacy of their product on willing participants. So, in November 1891, they printed an advert across UK newspapers asking for participants to human testing, with a £100 reward.

Louisa Carlill was just one of the readers attracted by the ad. For two months, she used the smoke ball three times a day. However, in spite of her efforts, Mrs. Carlill still caught the flu. And, to the surprise of her solicitor husband, Mrs. Carlill never received her reward.

In court, the company tried to excuse their hiccup by suggesting that the newspaper advert was never a ‘promise’ made to their potential users. However, their defence was unsuccessful, leading to significant changes being made to contract and consumer protection laws alike.

Gillick v West Norfolk & Wisbech Area Health Authority [1986] – Sometimes The Child Knows Best

In medical law, one of the biggest moral and ethical considerations is the level of competency to make medical decisions found in patients. Something which is often debated more fiercely though is to what extent children and minors have the competence to consent to medical examination and treatment.

In this case, Gillick was a mother with daughters under 16. She sought a declaration that a doctor could not prescribe any contraceptives to girls under 16 without parental knowledge or consent.

The House of Lords disagreed and the idea of “Gillick competence” was born. The court held that, provided a child under 16 has the requisite maturity and intelligence to understand the nature and effects of the treatment, they should be allowed the legal competence to consent themselves.

The Gillick decision came after deliberations on whether a minor’s consent can outweigh the notion of ‘parental rights.’ In the end, the court decided that ‘parental rights’ did not actually exist, but that parents were held under obligation by law to safeguard and make decisions in the best interest of their children. Thus, in cases of minors being deemed responsible enough to consent to treatment, parents do not have any power under the law to veto their decision.

Other Famous UK Case Law Examples

Mcdonald’s corporation v steel & morris [1997] (mclibel) – the longest libel case in british history.

In this case, a lawsuit was brought by McDonald’s Corporation against two environmental activists, David Morris and Helen Steel. The case itself lasted two and a half years but the overall lasted more than 10 years.

From 1986 onwards, a leaflet entitled “What’s wrong with McDonald’s? Everything they don’t want you to know” was in circulation as part of an anti-McDonalds campaign ran by Greenpeace London. The leaflet accused McDonald’s of, amongst other things, being responsible for Third World starvation and exploiting children. Subsequently, a case was brought by McDonald’s against the producers of the leaflet, three of whom apologised whilst Morris and Steel fought on, denying their involvement in the contents of the leaflets.

The judge, who sat without a jury, rejected the claims in the leaflet and ruled that the two had libelled the corporation ordering damages to be paid. The two refused to pay the money and McDonald’s did not pursue payment.

In 2004, Morris and Steel brought a case against the UK government at the European Court of Human Rights claiming that their lack of legal aid breached their Article 5 rights under the ECHR. Subsequently, the court ruled unanimously that they had been denied a fair trial.

This case is so famous that a documentary titled “McLibel” exists about it.

Fagan v Metropolitan Police Commissioner [1969] – Please Get Off My Foot

In this slightly ridiculous case, a policeman was giving directions to the defendant to move his car elsewhere when he accidentally drove onto the policeman’s foot. When the policeman shouted at the defendant to move the car, the defendant turned the engine off and refused to move.

This case makes a point concerning the requirement of both actus reus (act) and mens rea (intention) to be present for a crime to take place. Fagan argued that when he made the actus reus, he had no men’s rea as it was an accident, but when he obtained mens rea, there was no corresponding actus reus.

The basic ruling in this case was that the argument of Fagan was unnecessarily pedantic. Whilst it is agreed that omission cannot establish an assault, the actus reus of driving onto the foot and deciding to remain there constituted a continuing criminal act which was present when the mens rea occurred. Thus, Fagan’s conviction was upheld.

R (Factortame Ltd) v Secretary of State for Transport [1989] – Let Them Fish

This case is particularly relevant with regard to the legal changes under Brexit. The case was brought on by a company of Spanish fishermen against the UK government. The fishermen claimed that the UK had breached European law.

The UK required for the majority of a boat’s owners to be UK nationals in order to be able to register it in the UK, and therefore be able to fish freely on UK territory. Essentially, the case started an ongoing debate over which institution had legislative supremacy – the UK Parliament or the EU Court of Justice. In European courts, it had been stated many times that the EU Court of Justice had primacy over the UK Parliament. But, occasionally, laws from the two parties would overlap, leaving companies such as Factortame in difficulty.

Re A (conjoined twins) [2001] – Should We Kill Mary?

This iconic case sparked a moral and legal debate over whether it is permissible to surgically sever conjoined twins. In cases such as Jodie and Mary’s, one of the twins was much stronger than the other; together, they would meet an untimely death. But, if they were to undergo a severing, Jodie could make a full recovery – with a 94% chance of survival. However, this meant that Mary would die.

The twins’ parents opposed the surgery, and it was doctors who brought their case into court, asking whether their separation would be a more ethical alternative to their predictably short, and likely difficult lives.

In the end, it was decided that the parents’ faith or wishes would not be overriding in such cases. It was agreed upon that the death of the weaker twin would always be a ‘palliative, sympathetic’ one similar to euthanasia.

Famous Criminal Law Cases

R v dudley and stephens [1884].

One of the most important criminal law cases to consider is the case of R v Dudley and Stephens (1884). This case concerned a group of four men who had been stranded at sea in a small lifeboat, with only a limited amount of food and water rations. To survive, the group had agreed to kill and eat the cabin boy, Richard Parker. After their rescue, the men were charged with murder. The court held that in cases of necessity, the defence of self-defence was available, although it was ultimately rejected in this case. The decision of this case has been influential in shaping the law of homicide and its defences.

R v Rimmington [2006]

The case of R v Rimmington (2006) is also an important criminal law case to consider. This case concerned the right to silence in the face of police questioning. The defendant in the case was accused of criminal damage and was warned that his silence could be used against him in court. The court ultimately held that a defendant’s right to remain silent should be respected, and that it was wrong for the police to use a defendant’s silence against them in court.

Words: Ariana Serafinceanu

Other Legal Cases You Should Know About

• Landmark Race Discrimination Cases That Changed the US Legal System
• David v Goliath Retail Commercial Law Cases
• Interesting Legal Cases Overshadowed by the Coronavirus Pandemic
• Transgender Cases that Made the News

Find out more about the content of an LLB Law degree here 

• LLB Law – The Ultimate Guide
• LLB Syllabus – Compulsory LLB Subjects
• Areas of Legal Practice – Different Types of Law

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