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390 Criminal Law Handbook: Know Your Rights, survive the system

house with the loot from the robbery, even if the wife wanted to testify against him. Almost all states have abolished this aspect of the privilege; each spouse has the right to decide whether to testify against the other spouse or rely on the privilege and refuse to testify.) Case Example: Hank O’Hare is charged with embezzling sales receipts from his employer. On a number of occasions prior to his arrest, Hank told his wife Hedda in private how he was able to carry out the scheme. Hedda also occasionally went with Hank when he deposited money in an outof-town bank under a false name. Question: Can the prosecution call Hedda as a witness in Hank’s trial to testify to seeing Hank make bank deposits under a false name and to what Hank told her about how he carried out the embezzlement scheme? Answer: As to testifying to Hank’s statements to her, the answer is no. Hank’s statements to Hedda are protected by the spousal communications privilege. Hedda could not testify to Hank’s statements even if she wanted to. As to Hedda’s observation of Hank’s criminal activities, it’s up to Hedda. She can choose to exercise her privilege not to testify against Hank, meaning that she can decide not to testify about seeing Hank make bank deposits under a false name. Question: What if at the time the prosecution calls Hedda to testify against Hank, Hank and Hedda have gotten divorced? Answer: Hedda cannot testify to what Hank told her as to how he was able to carry out the embezzlement scheme. Hank’s statements were privileged when they were

made, and they remained covered by the spousal communications privilege after divorce. However, Hedda no longer has access to the spousal testimony privilege to refuse to testify against Hank. If called by the prosecution to testify, Hedda would have to testify to seeing Hank make bank deposits under a false name.

46. Do privileges exist that might protect statements made by crime victims? Crime victims often incur both physical and psychic injuries, and thus may receive medical treatment and/or psychological counseling. Statements made by crime victims to medical personnel, psychiatrists, and clinical psychologists are generally protected from disclosure by the same privilege rules that may protect defendants’ statements from disclosure. In addition, many states have enacted a privilege for statements made by victims of sexual attacks to crisis counselors. Defendants charged with crimes often argue that their constitutional rights to a fair trial and to confront the witnesses against them should outweigh these victim privileges. For example, a defendant may ask to see a crisis counselor’s notes regarding statements made by an alleged sexual assault victim in order to discover whether the alleged victim told a different story to the counselor than to the police. Few privileges are absolute, and judges sometimes allow defendants access to crisis counselors’ records, especially when a defendant has some evidence that an alleged victim has given conflicting accounts of events. ■

Chapter 19

Motions and Their Role in Criminal Cases Section I: The Basic Procedures……………………………………………………………………………393 1. When during a criminal case are motions made?……………………………………………393 2. What exactly does the average motion involve?……………………………………………..393 3. Do all motions involve this three-step process?………………………………………………394 4. Who can make a motion in a criminal case?………………………………………………….394 5. What happens during a motion hearing?……………………………………………………….394 6. Can stipulations be used in lieu of motions?………………………………………………….395 7. Is it risky to file a motion just to delay the case?……………………………………………..395 8. Can my lawyer make motions without consulting me first?………………………………395 Section II: Common Pretrial Motions…………………………………………………………………….396 9. Can I file a motion asking the judge to lower my bail or change bail to release O.R.?……………………………………………………………………….396 10. What can I do if the prosecutor made mistakes in the document used to charge me with a crime?…………………………………………………………………………397 11. How can I find out the details of what the prosecution claims I did wrong?………..397 12. Can I get a judge to decide whether the charges against me are too severe given the facts of the case?………………………………………………………………..397 13. What motion can I file if I don’t think I can get a fair trial in my town or city?…….398 14. Can I ask the judge to disregard previous convictions on my record when she is imposing sentence on me?……………………………………………….398 15. How can I find out what evidence the prosecution plans to use in my trial?……….399 16. Can I require the prosecution to give my own expert an opportunity to examine evidence in the prosecutor’s possession?………………………………………399 17. How can I find out if a witness is actually a government informant?………………….399 18. How can I find out if the officer who arrested or questioned me has behaved improperly in the past?………………………………………………………………….399 19. How can I show that the police seized evidence illegally and ask the court to keep it out of evidence?………………………………………………………………….400 20. My trial date keeps getting postponed by the prosecution. How can I bring my case to trial?………………………………………………………………………………..400

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Section III: Motions During Trial………………………………………………………………………….400 21. Can I ask the trial judge to rule that certain prosecution evidence is inadmissible before the prosecutor tries to introduce it?…………………………………..400 22. It’s really important to my defense that the jury actually visit the scene. How can I accomplish this?………………………………………………………………………..401 23. What can the defense do when a prosecution witness blurts out testimony that is both unexpected and damaging?………………………………………………………..401 24. The prosecution’s case was weak. Can I try to end the case without putting on evidence?………………………………………………………………………………….402 Section IV: Motions After Trial…………………………………………………………………………….402 25. If a judge or jury finds me not guilty, can the prosecutor ask (move) for a new trial?……………………………………………………………………………….402 26. What can I do if a jury convicts me and I disagree with their decision?………………403 27. My trial is before a judge alone, no jury. What recourse do I have if the judge convicts me?……………………………………………………………………………………404 28. What types of new evidence make it possible that I’ll get a new trial after being convicted by a judge or jury?………………………………………………………405

Chapter 19: Motions and Their Role in Criminal Cases

T

his chapter describes motions that parties commonly bring and argue in criminal cases. A motion is a request for a judge to make an order or ruling on a legal issue in the case. A motion may be made orally and involve a simple scheduling matter, such as one party’s desire to postpone a preliminary hearing (a Motion for a Continuance). Or, a motion may consist of a written brief that raises complex legal issues that cut to the very heart of a case. For example, a defendant’s Motion to Suppress Evidence may ask a judge to rule that crucial prosecution evidence is inadmissible at trial because the police seized it illegally. If a judge rules in the defendant’s favor, the prosecution may have to dismiss charges.

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1. When during a criminal case are motions made? Parties may make motions before, during, or after a trial depending on what they are requesting. For example, a Motion to Set Aside a Jury Verdict obviously can’t be made until after a trial is over. Before trial, defendants often file motions to attack the admissibility of certain types of prosecution evidence. A ruling in favor of the defense on such a motion may result in dismissal of charges or at least a plea bargain highly favorable to the defendant.

2. What exactly does the average motion involve? Typically, motions involve three distinct stages:

Motions can be confusing. This chapter highlights a few of the many important rules and procedures involved in handling motions in a criminal case. But it is not a comprehensive guide. Unrepresented defendants who need to make or respond to motions would be wise to consult counsel or, at the very least, to thoroughly research local court rules and procedures governing motions.

Section I: The Basic ­Procedures This section provides an overview of how motions are brought and handled in the typical criminal case.

a. Giving notice (advising an adversary that you are making a motion) Notice can be given orally or in writing, depending on the type of motion. To give notice orally, a defense attorney might say during a defendant’s arraignment, “Your Honor, the defense intends to move the court for a ruling that the prosecution may not offer the knife in evidence.” Written notice is given by preparing a Notice of Motion. The notice is filed with the court and mailed to the adversary. Most jurisdictions require that the notice and accompanying papers: • Identify the specific order a party wants the judge to make; • Explain the facts giving rise to the motion (in writing, in the form of an

394 Criminal Law Handbook: Know Your Rights, survive the system

affidavit or declaration under penalty of perjury); and • Explain the legal basis for the request in a document that is sometimes called a Memorandum of Points and Authorities. This document resembles an appellate brief, and may consist of many pages of legal arguments and case citations.

b. Hearing the motion During the hearing, each party has a chance to make oral arguments that may convince a judge to grant (“sustain”) or deny the motion.

c. Judge’s ruling The judge hearing the motion may rule immediately after the argument, or the judge may “take the matter under submission” and issue a ruling days, even weeks, later. In complex situations, the judge may invite the parties to submit further written legal arguments before making a ruling.

Written Arguments Can Help Defendants Even when not required to do so, many defense lawyers routinely support their motions with written briefs for three reasons: 1) a judge may take written arguments more seriously; 2) judges often make up their minds based on written arguments, before the attorneys argue orally during a hearing; and 3) the defendant will have a record on which to rely during an appeal should the judge deny a particularly important motion. (For more on court records and appeals, see Chapter 23.)

3. Do all motions involve this threestep process? No. The defense or prosecution sometimes make motions and argue them immediately, especially if the motions are made in the middle of trial. Even before or after trial, the parties may agree to waive (give up) the right to advance notice of a motion and argue immediately. Also, the parties may forgo oral argument and ask the judge to just rule on a motion “based on the papers.”

4. Who can make a motion in a criminal case? Typically, only the actual parties to the case (the defense and prosecution) can file motions. Sometimes, others who want to assert rights may file motions. For example, in several recent high-profile cases, TV stations have filed motions requesting that judges allow the televising of court proceedings.

5. What happens during a motion hearing? Hearings on motions are usually relatively short, sometimes just a few minutes. Judges handle motion hearings by themselves, without juries. The judge normally has read the parties’ briefs before the hearing, and therefore doesn’t want the parties to simply repeat what they wrote. The judge may ask questions and then give the prosecution and defense each a chance to answer and make an argument to persuade her of their position.

Chapter 19: Motions and Their Role in Criminal Cases

6. Can stipulations be used in lieu of motions? Yes. Before making motions, defense lawyers often ask prosecutors (or vice versa) to stipulate (agree voluntarily) to a request. For example, a defense attorney who wants to continue (delay) a preliminary hearing may simply ask the prosecutor to agree to a new date. If the prosecutor agrees to the delay, the defense need not make a formal motion. Instead, the parties might simply file a written stipulation in court informing the court of the new date. However, some court rules require the judge to approve any stipulations before they are put into effect. Case Example: The prosecutor, Rose Martinez, and the defense lawyer, Armando Lindan, agree to postpone the preliminary hearing of defendant Julie Daniels from March 8, the originally scheduled date, to April 25, a date that has been cleared with the court clerk. Question: What do the prosecutor and defense lawyer do then, after they agree to the new date? Answer: One of the attorneys prepares a stipulation and files it with the court.

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Hallway Hearings Procedures in criminal courts are often informal. A defense attorney and prosecutor may work out a continuance (or other pretrial issue) informally while standing in a hallway waiting for the judge to call the case. In most cases, judges merely rubberstamp voluntary agreements. When an agreement results in a defendant waiving (giving up) legal rights, however, the judge often asks the defendant to personally waive the rights on the record. For example, a judge might ask the defendant to personally stipulate to a continuance to show that the defendant is not insisting on a speedy trial.

7. Is it risky to file a motion just to delay the case? Motions filed for the sole purpose of delaying proceedings are considered frivolous (baseless or made for an improper purpose) and can lead to the offending party being fined by the judge.

8. Can my lawyer make motions without consulting me first? Attorneys often make decisions about what motions to file and when to file them without involving their clients. In some cases, this is because the attorney views the decision to file a particular motion as a tactical one, which the attorney believes he is better qualified to determine than the client. In other cases, the issue comes up suddenly, and the attorney has no time to consult the defendant. Defendants who want more hands-on involvement in their cases

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should probably ask their lawyers ahead of time to consult them whenever possible. (See Chapter 8 for more on working with defense counsel.)

Section II: Common Pretrial Motions This section describes the types of pretrial motions most commonly brought in criminal cases.

Motion

Question

Motion to Modify Bail

9

Motion to Dismiss Complaint

10

Motion for Bill of Particulars

11

Motion to Reduce Charges

12

Motion for a Change of Venue

13

Motion to Strike a Prior Conviction

14

Motion for Discovery

15

Motions to Preserve Evidence

16

Motion to Disclose Identity of an Informant

17

Motion to Examine Police Personnel File

18

Motion to Suppress Evidence

19

Motion for Speedy Trial

20

9. Can I file a motion asking the judge to lower my bail or change bail to release O.R.? Defendants can ask for a change in their bail status with a Motion to Reduce Bail. Motions to reduce bail are common. Bail may have been set originally by some standard measure, perhaps by police at the station house. And defendants often file motions to reduce that bail based on their individual circumstances. Even if a judge has already set bail, the defendant may bring new circumstances to the judge’s attention in a Motion to Reduce Bail. (See Chapter 5 for more on the factors that may persuade a judge to lower bail.) Case Example: Ken Ahura was arrested for driving under the influence. Ken and his family recently moved from another state, and at the time of his arrest Ken was unemployed. Using a bail schedule, the police set Ken’s bail at $10,000, far in excess of what he could afford. Question: How can Ken get a judge to lower bail? Answer: At Ken’s first court appearance, Ken’s lawyer should make a motion for a reduction of bail. The lawyer would stress the hardship to Ken and his family of his being in jail, and any factors indicating that Ken will show up as necessary and abide by conditions of bail. Defense motions for reduced bail are often made orally. Even if the judge rejects Ken’s first motion to reduce bail, Ken may make additional bail reduction motions if there is a change in circumstances, such as a job offer or a person well known and respected in the community who is willing to vouch for him.

Chapter 19: Motions and Their Role in Criminal Cases

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10. What can I do if the prosecutor made mistakes in the document used to charge me with a crime?

11. How can I find out the details of what the prosecution claims I did wrong?

A defendant can attack an improper complaint with a Motion to Dismiss for Vagueness or a Motion to Dismiss Based on Improper Jurisdiction. A criminal complaint must specify the crime(s) charged, the defendant(s) accused of such crime(s), and the authority for the prosecution to make such charge(s). The complaint must also allege that the defendant committed each and every element of the crime(s) charged. For example, the crime of larceny (theft) typically includes the following elements: 1) the taking and carrying away, 2) of property of another, 3) with the intent to deprive that person permanently of the property in question. Theoretically, the failure of the complaint to allege each of these elements should result in the case being dismissed upon a motion by the defense. However, those kinds of motions are uncommon. Prosecutors use the same forms over and over, and toss out defective ones. Also, the prosecution is usually free to amend (change) any mistakes, so motions to dismiss based on technical violations are rarely useful. However, this is not always true. For example, a successful dismissal motion may prevent the prosecution from refiling charges when a statute of limitations (a law that requires a complaint to be filed within a specified time period) will expire before new charges can be filed.

The defendant can file a Motion for Bill of Particulars to learn the basis of the formal charge that the defendant faces. If the motion is granted, the judge will then order the prosecutor to describe with particularity just what the defendant did wrong. Among other benefits, this may help the defense figure out an appropriate strategy to fight the charges. In most jurisdictions, this type of motion usually is unnecessary, as the defense is routinely given a copy of the police report upon which the criminal complaint was based. However, if the police report does not provide adequate guidance as to facts underlying the prosecution’s charge, a motion for a bill of particulars can be very useful. (See Chapter 14 for more on police reports.)

12. Can I get a judge to decide whether the charges against me are too severe given the facts of the case? Yes, by filing a Motion to Reduce Charges. This is not a common motion, because 1) in most states judges do not normally review the evidence against a defendant prior to trial in misdemeanor cases, and 2) in felony cases, most states have a procedure called a preliminary hearing (see Chapter 16) in which the judge decides whether the prosecution’s felony case is adequately supported by the evidence. More typically, defendants seek reduced charges by plea bargaining with prosecutors, offering to

398 Criminal Law Handbook: Know Your Rights, survive the system

plead guilty to lesser crimes. (See Chapter 20 for more on plea bargaining.)

13. What motion can I file if I don’t think I can get a fair trial in my town or city? A defense Motion for Change of Venue asks the judge to relocate the case to a different location. Generally, criminal court proceedings (pretrial and trial) take place in the county where the alleged crime occurred. Defendants sometimes ask for a change of venue (location) when excess pretrial publicity makes it difficult to find unbiased jurors in the locality where a case is pending. If the judge agrees and determines that as a result of the publicity the defendant is unable to get a fair trial, the judge may grant the motion. Even where the defendant has received extensive negative publicity, the defense may choose not to ask to have the case moved because: • The case may be sent to an even more undesirable location; • The defendant may end up far away from family and friends; • Defense counsel may be at a disadvantage not having an office close by the courtroom; or • The cost of a trial away from the defense attorney’s home base may be more than the defendant can afford.

14. Can I ask the judge to ­disregard previous convictions on my ­record when she is imposing ­sentence on me? Defendants can sometimes reduce the severity of charges by filing a Motion to Strike a Prior Conviction. Defendants with prior records are often sentenced much more harshly than first offenders, and may even be charged with more serious offenses at the outset. (See Chapter 22 for more on sentencing and Chapter 6 for more on charging.) For example, a misdemeanor may be filed as a felony if a defendant is a repeat offender. For these reasons, it is especially critical to an effective defense to challenge prior convictions where appropriate. The most common reason for a judge to strike a prior conviction is a procedural irregularity or constitutional violation associated with the prior conviction. For example, the defendant may have been denied counsel at a critical stage of the case that resulted in the prior conviction, or the defendant may have entered into a plea bargain unknowingly or because of coercive practices by the police. (See Chapter 20 for more on plea bargaining.) Sometimes defense counsel can convince the judge in the current case that fairness requires the prior conviction to be disregarded—struck— where the defendant has since engaged in a long period of good behavior or formal rehabilitation.

Chapter 19: Motions and Their Role in Criminal Cases

Court Records Can Be Wrong It is not unusual for rap sheets (records of prior convictions) to contain mistakes. For example, a misdemeanor conviction may have been erroneously recorded as a felony. As a routine matter, defense lawyers typically review conviction records for errors, and sometimes have defendants review the records as well.

15. How can I find out what evidence the prosecution plans to use in my trial? Defendants can file a Motion for Discovery to find out information in prosecutors’ files. Technically, such motions are unnecessary. Prosecutors have a legal duty to turn over any information that might help the defendant, even if the defendant fails to ask for it. And many prosecutors voluntarily hand over all the information that the defense is entitled to see, such as police reports and lab tests. But a thorough defense lawyer may be convinced that it’s still a good idea to put a formal motion for discovery on the record. (For more information about discovery, see Chapter 14.)

16. Can I require the prosecution to give my own expert an o ­ pportunity to examine evidence in the ­prosecutor’s possession? Defendants can file a Motion to Preserve Evidence to force prosecutors to keep evidence safe long enough for the defense to run its own tests. For example, if a police lab indicates that the percentage of alcohol in a

399

defendant’s blood was .12%, the defendant may want a judge to order the prosecutor to preserve the blood sample so that the defense can run its own test. (See Chapter 24 for more on blood-alcohol tests.)

17. How can I find out if a witness is actually a government informant? Defense attorneys can find out whether the prosecution is relying on a government informant by filing a Motion to Disclose Identity of a Confidential Informant. Defense attorneys often try to attack a witness’s credibility by showing that the witness is a paid informant who has something to gain (frequently money or reduced charges in the informant’s own case) by testifying against the defendant. With this motion, the defense may request that the court order the prosecution to reveal an informant’s identity and location. The prosecution can be counted on to vigorously oppose this motion in order to protect the identity of the informant. If the judge grants the motion, the prosecution may even dismiss the case rather than lose a valuable police resource.

18. How can I find out if the officer who arrested or questioned me has behaved improperly in the past? When a police officer’s past history is relevant to the defense, the defendant may gain access to portions of the police officer’s personnel file by filing a Motion to Examine Police Officer’s Personnel File. If successful, the defense can review the file to determine whether the officer has been implicated

400 Criminal Law Handbook: Know Your Rights, survive the system

previously in any wrongdoing. The record may reveal that the officer has been reprimanded in the past for use of excessive force, planting evidence, or exhibiting racial prejudice. If so, the defense may be able to use this information to deflate the officer’s credibility and, accordingly, weaken the prosecution’s case. However, judges do not let defendants go on fishing expeditions into police officer files. Unless a defendant can demonstrate a specific purpose for the request, this motion probably won’t be granted. (See Chapter 14 for more on discovery.)

19. How can I show that the police seized evidence illegally and ask the court to keep it out of evidence? One of the most common pretrial motions is a Motion to Suppress (exclude) improper evidence. This motion can request the exclusion of evidence obtained as a result of: • an improperly-obtained confession (for additional information about confessions, search and seizure, and identification procedures, see Chapters 1, 2, and 4, respectively); • an improper search or arrest; or • a tainted identification such as a lineup.

20. My trial date keeps getting postponed by the prosecution. How can I bring my case to trial? Defendants are entitled to be tried relatively quickly unless they give up (waive) this right somewhere during the case. A defendant can

enforce his right to be tried quickly by filing a Motion for a Speedy Trial. The defense can file this motion to force the prosecutor to abide by rules limiting the amount of time that can pass before the defendant is brought to trial. Because delays often benefit the defendant (witnesses’ memories fade or they move or die, evidence is lost, and prosecutors lose momentum and are often more willing to deal), defense lawyers typically don’t insist on speedy trials. (For additional discussion of speedy trial rights, see Chapter 17.)

Section III: Motions During Trial This section provides an overview of the motions that the defense commonly brings during a trial.

21. Can I ask the trial judge to rule that certain prosecution evidence is inadmissible before the prosecutor tries to introduce it? Yes, by making a Motion in Limine. This bit of Latin means “at the very beginning.” By attacking prosecution evidence through a Motion in Limine rather than waiting until the prosecution introduces the evidence at trial, a defendant tries to prevent the jury from ever hearing about evidence that the judge rules inadmissible. Motions in Limine are often made orally, though they may be supported with a Memorandum of Points and Authorities. (For more information on this motion, see Chapter 21, Section IV.)

Chapter 19: Motions and Their Role in Criminal Cases

Case Example: Grant Jordan faces trial on drunk driving charges. The prosecutor plans on introducing testimony from several witnesses, including Dr. Joyce, who performed Grant’s postarrest blood test. In the doctor’s report (reviewed during discovery by the defense), the doctor noted that she’d seen the accused “plastered” in a local bar a week before the accident. Question: Is there anything the defense lawyer can do to make sure the jury never hears about what the doctor saw the week before? Answer: Yes, the defense can file a Motion in Limine requesting that the doctor’s notes about the week before be stricken from the report so the jury never sees them. That the doctor thought the defendant was drunk the week before is irrelevant to the defendant’s state at the time of the accident, and the “plastered” comment is highly prejudicial. The doctor will still be able to testify about the results of the blood-alcohol test.

Some courts routinely conduct conferences with counsel before jurors are selected, to handle procedural matters related to the trial, including any Motions in Limine the lawyers plan to make. Motions in Limine are a critical component of the typical criminal case. Even though there are many ways to discredit witnesses, once a witness refers to damaging evidence, it’s difficult for jurors to disregard what they’ve heard—to, as they say, “unring the bell.” So much the better, therefore, to address the question in advance and not let the bell be rung in the first place.

401

22. It’s really important to my defense that the jury actually visit the scene. How can I accomplish this? The defendant can ask the judge to escort jurors on a visit to scenes of important events by filing a Motion to Allow Jury to View the Crime Scene. Unfortunately, judges incur costs and time delays by granting such motions. Thus, a defendant has to support such a motion with a strong argument as to why the jurors should visit a scene, and the inadequacy of an alternative (such as photographs or videotape).

23. What can the defense do when a prosecution witness blurts out testimony that is both unexpected and damaging? Ideally, attorneys can object to improper evidence before jurors hear it. If the evidence is anticipated, the objection can be made in a Motion in Limine. (See Question 21.) But it’s obviously impossible to anticipate everything a witness will say. When jurors do hear improper evidence, the defense can make a Motion to Strike Testimony, followed up by asking the judge to instruct the jurors to disregard the stricken testimony. Even though it is difficult for jurors to disregard something they have heard, it is important for defendants to move to strike improper testimony for at least four reasons: • Even though the witness should not have made the statement in the first place, jurors can consider evidence unless it is formally stricken by the judge;

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• If jurors, during deliberations, ask for testimony to be read back, they will not hear the stricken testimony; • The instruction may hurt the credibility of a prosecution witness. When jurors are told to disregard portions of a witness’s testimony, the jurors may perceive the witness as a partisan who is unwilling to follow the rules of trial; and • Stricken testimony does not become part of the record on appeal. (More on appeals in Chapter 23.)

24. The prosecution’s case was weak. Can I try to end the case without putting on evidence? Yes, by filing a Motion for Dismissal (or acquittal). After the prosecution presents all of its evidence, the defense can ask the judge to acquit the defendant at once on the ground the prosecution hasn’t made out a strong enough case to convict. Defense lawyers try to make this motion out of the presence of the jury so that if the judge denies the motion (and likely the judge will), the jury won’t interpret the denial as meaning the judge thinks the defendant is guilty. Case Example: Vic Trola is a public defender representing Yu Kaleili on kidnapping charges. The prosecution’s main evidence was the victim’s testimony that Kaleili intentionally forced the victim to enter his car and would not let her leave. During Trola’s cross-examination, the victim admitted to entering Kaleili’s car willingly.

The victim also testified that Kaleili never tried to stop the victim from leaving the car; the victim stated that it was her “impression” that Kaleili would not permit her to leave. After the prosecution rested its case, Trola made a Motion for Dismissal, arguing that the prosecution had failed to prove an essential element of kidnapping: that Kaleili detained the victim against the victim’s will. Question: Will Trola’s motion be granted? Answer: Quite possibly. The victim’s testimony casts doubt on whether Kaleili detained the victim by force. If the judge believes that a jury would be unjustified in concluding beyond a reasonable doubt that Kaleili detained the victim, the judge should grant the Motion to Dismiss.

Section IV: Motions After Trial This section describes the motions that are commonly brought by the defense after the trial has concluded with a guilty verdict.

25. If a judge or jury finds me not guilty, can the prosecutor ask (move) for a new trial? No. That’s the end of the case. If a jury or judge finds a defendant not guilty as to all charges, the prosecution cannot appeal, nor can the prosecution ask the judge to set aside the verdict and order a new trial. A retrial would violate the defendant’s constitutional right against double jeopardy. Even if the judge, prosecutor, and half the nation think a jury’s decision is wrong,

Chapter 19: Motions and Their Role in Criminal Cases

a not guilty verdict is final. The only motion following not guilty is normally the defendant leaving the courtroom as quickly as possible.

26. What can I do if a jury convicts me and I disagree with their decision? Defendants who think they’ve been wrongfully convicted have a number of options. 1. The defendant can make a motion asking the trial judge to overturn the jury’s guilty verdict and enter a verdict of not guilty. A judge who believes that a guilty verdict was unreasonable can change it to not guilty. Judges seldom acquit defendants in the face of a jury’s guilty verdict, since the jury is supposed to decide factual disputes. Technically, the judge could order an acquittal based on defense evidence, but this would only happen if the defense presented compelling proof of factual or legal innocence, something that seldom happens outside of the movies and Perry Mason. 2. A defendant can move for a new trial—that is, ask the judge to set aside the jury’s verdict, declare a mistrial, and start over. Defendants may move for new trials based on a variety of grounds. The broadest rules give judges the power to grant a new trial “if required in the interest of justice” (Federal Rule of Criminal Procedure 33). Other rules identify specific grounds on which judges can grant new trials. For example, Florida Rule of Criminal Procedure 3.600 authorizes judges to grant new trials for reasons including the following:

403

a. The defendant has discovered new and important evidence that couldn’t have been discovered prior to trial; b. The jurors engaged in misconduct during the trial; c. The judge or prosecutor committed an important legal error; or d. The judge gave an improper jury instruction. Defendants are not entitled to a perfect trial. Typically, even when there are mistakes, judges consider them harmless error—not so serious as to require the setting aside of a verdict—if they probably had little or no effect on the jury when it reached its guilty verdict. If the trial judge does grant the defense motion for a new trial, the prosecution can appeal and challenge the judge’s decision. But the judges who hear appeals commonly allow trial judges wide discretion in their decisions to grant or deny new trial requests. Appellate judges know that they only review a written record, while the trial judge actually saw and heard the witnesses. Accordingly, appellate judges only reverse trial judges’ decisions to grant new trials when the written record clearly shows the trial judge’s decision was wrong (or “clearly erroneous,” as appellate court judges like to say). 3. Defendants can appeal (ask a higher court to reverse the conviction) because the trial judge or jurors made a mistake.

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Deadline to Move for New Trial Defendants who want to make a motion for a new trial must typically do so very soon after the jury reaches a verdict. In federal court, new trial motions must be made within seven days, unless they are based on newly-discovered evidence, and even those must be made within three years after the final judgment. (See Federal Rule of Criminal Procedure 33.)

Answer: Yes. Juror misconduct is proper grounds for a new trial, and all of the following are prohibited: • Jurors considered evidence not presented in court (Oblido’s field trip experiments); • At least one juror convicted to go along with others and not out of personal conviction (Rogers); and • One juror (Travis) appeared to have based his verdict on racial prejudice.

Case Example 2: Anna Rose was convicted Case Example 1: Motion for New Trial Because of Juror Misconduct. (The following case example illustrates one reason a judge might grant a new trial: juror misconduct.) Julio Daniels was convicted for burglarizing the Lomida Candy Shoppe. After the verdict, one juror, Rosalie Man-Doe, told a reporter about the deliberations. Rosalie said a juror named Kelsey Oblido had gone to the Shoppe and measured the opening in a broken window. Oblido told them it was “plenty big enough for Daniels,” and urged them to ignore defense arguments that no one of Daniels’s size could have climbed through. Oblido’s “evidence” persuaded Rosalie and another juror, Linda Rogers. Rogers was apparently unsure but said she wanted to do what was right; if the others were sure, then she, too, would convict. Another juror, Clayton Travis, had made racial slurs about the defendant. Among other things, Travis announced that he “knew” Julio Daniels was guilty because “all those people are criminals.” Question: Based on Rosalie’s report, does Daniels have grounds to move for a new trial?

by a jury of burglary. John Fell testified for the prosecution and identified Anna as the burglar. Anna’s attorney moves for a new trial based on Fell’s having whispered after the verdict that he believed he’d made a mistake. Question: Must the judge grant Anna’s motion? Answer: No. Judges often believe that witnesses and even jurors suffer from postverdict remorse, and too easily want to take back what they did or said. Here the judge might conclude that Fell’s recantation is not believable, or that even without Fell’s testimony the prosecution had sufficient evidence to convict Anna, in which case any error would be harmless. In either event, the judge would deny Anna’s motion.

27. My trial is before a judge alone, no jury. What recourse do I have if the judge convicts me? For many of the same reasons that a defendant may move for a new jury trial, a convicted defendant may ask the judge to: • modify the verdict (for instance, change it from conviction on one charge to conviction on a lesser charge); or

Chapter 19: Motions and Their Role in Criminal Cases

• vacate the verdict (withdraw it altogether and order a new trial). Because these motions ask the judge to—in effect—overrule herself, they are not usually successful. Nonetheless, in certain situations, such a motion might be worth a try—for instance, where new and important evidence is discovered that might persuade the judge to change her mind.

28. What types of new evidence make it possible that I’ll get a new trial after being convicted by a judge or jury? As mentioned earlier, one reason a judge may grant a new trial is that the defense discovers new and helpful evidence that for some very good reason was not available at the time of trial. Defense counsel’s being on vacation and not having adequate time to prepare is not considered a good reason. But the recent surfacing of an alibi witness who had fled to Argentina may be. Another possible good reason is that scientific evidence that was not available at trial becomes available. Old cases have been reopened, for instance, to analyze blood samples with new DNA technology.

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Case Example: Guy Goode was convicted of rape; his defense was mistaken identity. One year after Goode’s conviction, scientists develop a new test that demonstrates that he was not the source of the semen found in the rape victim. Question: Should the trial judge grant a new trial based on this information? Answer: Yes. The information qualifies as newly-discovered evidence, since the scientific test was unknown at the time of Goode’s trial. Moreover, the evidence is important; had it been offered at the time of trial, it might well have produced a different verdict.

Writ Proceedings in the Trial Court Writs, discussed further in Chapter 23, are generally orders from higher courts to lower courts. However, in some states defendants can seek special relief from the trial court itself, in limited situations, through a proceeding called a writ coram nobis. For example, using this writ a defendant might ask the trial court itself to reopen a case to review facts that the defendant could not present during trial, either because they were not known or for some other extraordinary reason (for instance, the defendant had been threatened and was afraid to present facts that would have led to an acquittal). n

Chapter 20

Plea Bargains: How Most Criminal Cases End Section I: Plea Bargaining—The Basics………………………………………………………………….409 1. Are there other terms for a “plea bargain”?……………………………………………………409 2. When are plea bargains made?……………………………………………………………………409 Section II: The Pros and Cons of Plea Bargains……………………………………………………….410 3. If I plead guilty or no contest, will I have a criminal record?…………………………….410 4. What does it mean to plead “no contest” or “nolo contendere” rather than guilty?……………………………………………………………………………………..410 5. What incentives do I have to enter into a plea bargain?…………………………………..410 6. What’s in a plea bargain for the prosecution? Why does the court accept them?………………………………………………………………..412 7. How might a plea bargain benefit victims?……………………………………………………414 Section III: The Plea Bargaining Process………………………………………………………………..414 8. What happens in a plea bargain?…………………………………………………………………414 9. Can my lawyer arrange a plea bargain without me?………………………………………..414 10. What role does the judge play in plea bargaining?………………………………………….414 11. Does the judge have to go along with the deal the lawyers work out?………………..415 12. Do victims have a role in the plea bargaining process?……………………………………415 13. What factors enter into a judge’s decision to accept or reject a plea bargain?…………………………………………………………………………………416 14. Assuming the agreement reached in a plea bargain is in the ballpark, what additional role will the judge play?………………………………………………………416 15. I don’t want to plead guilty, but I’m told the judge will treat me worse if I go to trial and lose. Is this true?……………………………………………………………….418 16. What happens after a plea bargain is reached?………………………………………………418

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Section IV: The Strategy of Negotiating Plea Bargains……………………………………………..419 17. When prosecutors file charges, do they already have a plea bargain in mind?…….419 18. Will different defendants charged with the same crime in the same court end up with pretty much the same plea bargain?……………………………………………419 19. What is a “standard deal”?………………………………………………………………………….420 20. How can I find out what the standard deal is for my case?……………………………….420 21. What other factors might influence the deal in my case?………………………………….420 22. How tricky is it to arrange a plea bargain? Do I have to have a lawyer to negotiate a good deal?……………………………………………………………………………420 23. How do I know when to take the deal?…………………………………………………………421 24. Don’t defense lawyers just push people to take deals because it’s easier for the lawyers?…………………………………………………………………………..422 25. Can I do anything if I feel that I made a bad deal?…………………………………………..423

Chapter 20: Plea Bargains

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plea bargain is an agreement between the defense and the prosecutor in which the defendant agrees to plead guilty or no contest in exchange for an agreement by the prosecution to drop some charges, reduce a charge to a less serious charge, or recommend to the judge a specific sentence acceptable to the defense. As criminal courts become ever more crowded, prosecutors and judges alike feel increased pressure to move cases quickly through the system. Trials can take days, weeks, or sometimes months, while guilty pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable, whereas a plea bargain provides both prosecution and defense with some control over the result—hopefully one that both can live with to some extent. For these reasons and others, and despite its many critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas, which means less than 10% of criminal cases end up in trials. And though some still view plea bargains as secret, sneaky arrangements that are antithetical to the people’s will, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court. (See Federal Rule of Criminal Procedure 11(e).)

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Section I: Plea Bargaining— The Basics This section provides a general overview of the plea-bargaining process.

1. Are there other terms for a “plea bargain”? A plea bargain may also be called a plea agreement or negotiated plea. Lawyers may also casually say they got a great deal or that the prosecution offered a particular sentence.

Different Types of Plea Bargaining Plea bargaining can be conveniently divided into two types: sentence bargaining and charge bargaining. Sentence bargaining is a method of plea bargaining in which the prosecutor agrees to recommend a lighter sentence for specific charges if the ­defendant pleads guilty or no contest to them. Charge bargaining is a method where prosecutors agree to drop some of the counts of a charge or reduce the charge to a less serious or less prejudicial offense in exchange for a plea by the defendant.

2. When are plea bargains made? This depends on the court and the jurisdiction. Some jurisdictions only allow plea bargains during certain phases of the criminal process. In many other places, however, plea bargains can be worked out virtually any time—from shortly after the defendant is arrested (before the prosecutor files criminal charges) up to

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the time a verdict is reached—even during trial itself. Also, if the trial results in a hung jury (the jurors are split and cannot make the unanimous decision required), the prosecution and defense can (and frequently do) negotiate a plea rather than go through another trial.

Section II: The Pros and Cons of Plea Bargains This section explains why a defendant may or may not wish to enter into a plea bargain.

3. If I plead guilty or no contest, will I have a criminal record? A guilty or no contest plea entered as a judge-approved plea bargain results in a criminal conviction; the defendant’s guilt is established just as it would be after a trial. The conviction will show up on a criminal record (rap sheet). And the defendant loses any rights or privileges, such as the right to vote, that the defendant would lose if convicted after trial.

4. What does it mean to plead “no contest” or “nolo contendere” rather than guilty? A no contest or nolo contendere plea in essence says to the court, “I don’t choose to contest the charges against me.” This type of plea, often part of a plea bargain, results in a criminal conviction the same as does a guilty plea. And a no contest plea will show up on

a criminal record. However, if the defendant is later sued in civil court by the victim, the no contest plea itself sometimes cannot be used in the civil case as an admission of guilt. A guilty plea, on the other hand, does serve as an admission of guilt and can be introduced in civil cases as evidence against the defendant.

5. What incentives do I have to ­enter into a plea bargain? For most defendants, the principal benefit to plea bargaining is receiving a lighter sentence for a less severe charge than might result from taking the case to trial and losing. Example: David Neustadt is charged with 20 counts of burglary—from a spree of burglaries in his neighborhood. Assistant District Attorney Rachel Marks offers to drop the charges to two counts of burglary if David pleads guilty right away. David takes the deal, because his sentence will be shorter and he will be eligible for parole earlier than if he were convicted on every charge at trial.

Another fairly obvious benefit that defendants can reap from plea bargaining is that they can save a bundle on attorneys’ fees (assuming they are represented by private counsel). It almost always takes a lot more time and effort to try a case than to negotiate and handle a plea bargain, so defense counsel typically charge a much higher fee if the case goes to trial. There may also be other benefits for defendants who plead guilty or no contest, such as the following:

Chapter 20: Plea Bargains

a. Getting out of jail In-custody defendants who either do not have the right to bail or cannot afford bail may get out of jail immediately following the judge’s acceptance of a plea. Depending on the offense, the defendant may get out altogether or on probation, with or without some community service obligations. Or, the defendant may have to serve more time, but will still get out much sooner than if he insisted on going to trial.

Benefits of Move From Jail to Prison Even if the plea results in the defendant being moved from jail to prison, this also, paradoxically, may occasionally be a benefit. A move to prison can be a step up if the jail conditions are worse than prison conditions. And convicts in prison may have privileges that defendants awaiting trial in jail don’t have. Furthermore, even when defendants go to prison, there is some intangible benefit to simply having resolution—knowing how long they will be in, rather than what may feel like endless waiting around in jail.

b. Getting the matter over quickly This has the intangible benefit, touched on above, of providing resolution to what is almost always a stressful event (being charged with a crime). People who are charged with a crime, for example, while on vacation might opt for a plea bargain in order to get back home sooner. And

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defendants with jobs who are charged with minor offenses may prefer to resolve the case in one court appearance rather than missing work repeatedly. Going to trial usually requires many more court dates than taking a plea bargain.

c. Having fewer and/or less serious ­offenses on one’s record Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offenses looks a lot better on a defendant’s record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second DUI conviction may carry mandatory jail time, whereas if the first DUI offense had been bargained down to reckless driving (for example), there may be no jail time for the second DUI arrest. (See Chapter 24 for more on the penalties associated with repeat drunk driving offenses.) Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor, or from a felony that constitutes a strike under a “three strikes” law to one that doesn’t, can prove to be a critical benefit. Some professional licenses must be forfeited upon conviction of a felony. Future employers may not want to hire someone previously convicted of a felony. Felony convictions may be used in certain court proceedings (even civil cases) to discredit people who testify as witnesses. Felons can’t own or possess firearms. And in many jurisdictions, felons can’t vote.

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d. Having a less socially stigmatizing offense on one’s record Prosecutors may reduce charges that are perceived as socially offensive to less offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the defendant’s relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if they are convicted of an offense that doesn’t carry the same stigma.

e. Avoiding hassles Some people plead guilty, especially to routine, minor first offenses, without hiring a lawyer. (See Chapter 10.) If they waited to go to trial, not only would they have to pay money to a lawyer but they would have to find and hire a lawyer and might well spend time working with the lawyer to prepare for trial.

f. Avoiding publicity Famous people, ordinary people who depend on their reputation in the community to earn a living, and people who don’t want to bring further embarrassment to their families all may chose to plead guilty or no contest to get (and keep) their names out of the paper as quickly as possible. While news of the plea itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant’s background explored in the course of a plea bargain to the extent it may be done in trial.

g. Keeping others out of the case Some defendants plead guilty to take the blame (sometimes called the “rap”) for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated.

Factors That Affected Detective Fuhrman’s Plea Bargain Retired detective Mark Fuhrman, infamous for having denied using racial slurs during the O.J. Simpson criminal trial, pleaded no contest to perjury charges. Fuhrman apparently “didn’t have the money to wage a long court battle and didn’t want to put his family through such a trial.” Said Fuhrman, “… I don’t think the city of Los Angeles either deserves or could handle a trial like this … I cut my losses and everybody else’s” (From “Fuhrman Grants Interview. Apologizes for Slurs,” L.A. Times, October 8, 1996 at B1).

6. What’s in a plea bargain for the prosecution? Why does the court accept them? For judges, the primary incentive to accept plea bargains is to move along their crowded calendars. Most judges simply don’t have time to try every case that comes through the door. Additionally, because jails are overcrowded, judges may face the prospect of having to let convicted people (housed in the same facilities as those awaiting trial) out before they complete their sentences. Judges often reason that the quicker those

Chapter 20: Plea Bargains

offenders who are not likely to do much jail time anyway are “processed” out of jail (by plea bargains), the fewer problems with overcrowding, and the less frequently serious offenders will be let go before their full sentence has been served. For a prosecutor, the judge’s concerns about clogged calendars are the prosecutor’s concerns as well. When the judge is bogged down, the judge yells at prosecutors to move cases along quicker. To keep judges happy (and keep the machine rolling), prosecutors must keep “the bodies” moving (as criminal defendants are most unfortunately referred to by some courthouse regulars). Prosecutors are, of course, also concerned for their own calendars. Clogged calendars mean that the prosecutor’s staff is overworked. Plea bargains tend to lighten the staff’s caseloads. Since plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor’s budget. With today’s cutbacks on already slim resources, D.A.s feel they will have additional time and resources for more important cases if they conclude a large number of less serious cases with plea bargains. Another benefit to the prosecution is an assured conviction. No matter how strong the evidence, no case is ever a slam dunk. The prosecution may wage a long, expensive, and valiant battle, and still lose the case (as did prosecutors in the O.J. Simpson criminal trial). Plea bargains also give prosecutors flexibility. For instance, they can offer a deal to someone who, though guilty, has given testimony about a codefendant or helped resolve some other unsolved case.

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Case Example: Brad Hillary, an experienced criminal with a long rap sheet, planned to rob Danny’s Liquor store. He recruited Aliza Michaels to be his lookout. Aliza has no criminal history and is just 18. She merely stood guard; she was not armed and did not know Brad had a gun. As Brad threatened Danny and emptied the cash, his gun accidentally fired. Danny suffered serious but not fatal injuries; Brad and Aliza fled. Aliza later confessed to the police. Brad pleads guilty to armed robbery and gets sentenced 25 years to life in prison— ironically, the same sentence he likely would have gotten after trial, because of his record and the nature of the robbery. Aliza, though technically guilty of armed robbery, is offered a plea to larceny (theft), for which she may serve up to one year in prison, in exchange for her testimony against Brad. Question: Can the prosecutor do this? Answer: Yes. The prosecutor likely justified the deal by reasoning that Aliza helped to get the really bad guy and played a minor role in the robbery, and that this was her first offense. These last two factors would ordinarily tend to lighten Aliza’s sentence even without her cooperation. (See Chapter 22 for more on factors that tend to mitigate (lessen) or aggravate (increase) a defendant’s sentence.) Finally, prosecutors may use plea bargains to circumvent laws they don’t agree with. For instance, a prosecutor may disagree with laws prohibiting possession for personal use of small amounts of marijuana, so the prosecutor’s office may have an unwritten policy of giving all such offenders “offers they can’t refuse,” such as a $25 fine and ten hours of community service.

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7. How might a plea bargain benefit victims? Victims can also benefit from plea bargains, especially when a victim wants to avoid the stress and publicity of trial. A guilty or no contest plea is quicker and tends to receive less press than a trial.

Section III: The Plea ­Bargaining Process This section sheds light on how plea bargains come to be made.

8. What happens in a plea bargain? In a typical plea bargain, the defense lawyer and prosecutor confer (talk), and one or the other proposes a deal. The negotiations can be lengthy and conducted after both parties have had a chance to research and investigate the case. Or, they can be minutelong interchanges in the courthouse hallway. Case Example: Deputy Public Defender Durlofsky passes Assistant District Attorney Van Lowe in the hallway on their way into the courtroom. The following interchange takes place. P.D. “‘Mornin’, V.L. Got a good offer for me in the Reback case?” D.A. “That’s the possession case?” P.D. “Yeah. Honor student, nice guy, caught with some coke in his dorm room. He’s been in since last night. How ’bout time served and probation?” D.A. “Fine.” P.D. “Okay, what about the Cooper case?”

It is quite likely that a plea bargain in a misdemeanor drug possession case would take place this quickly and this informally, especially when the deal is between a prosecutor and court-appointed attorney who work with each other every day and are friendly. “Time served” means that the jail time will be just what the defendant has already spent in jail—in this case overnight. Question: Can the public defender agree to the deal without consulting the defendant (Reback)? Answer: No. (See Question 9.) But this is likely a deal Reback would want to take. If the case went to trial and Reback lost, his sentence might be more severe—more jail time, perhaps a fine, and some community service or mandatory enrollment in a drug treatment program. By accepting the deal, Reback not only gets out of jail but has the certainty of knowing the case is over.

9. Can my lawyer arrange a plea bargain without me? Yes, but the decision about whether or not to accept the plea bargain ultimately rests with the client. For practical purposes, however, defense counsel often urge defendants to accept deals, convincing them they’ll get a much harsher sentence if they go to trial (and they’re often right). And defendants tend to take the deals defense counsel recommend.

10. What role does the judge play in plea bargaining? It is up to the judge to impose sentence in a criminal case; no one else has the

Chapter 20: Plea Bargains

authority. On the other hand, it is up to the prosecutor to decide what charges to bring; the judge has no authority in that sphere except to dismiss a charge that the judge feels is wrong. This means that a prosecutor may agree to change the charges or even drop some charges, in exchange for the defendant’s plea, and the judge can’t stop it. However, if the plea bargain involves the type of sentence to be imposed by the judge, the prosecutor cannot guarantee the result without the judge’s agreement. Much of the time, plea bargaining negotiations take place privately between the defense lawyer and prosecutor, outside of court. The judge has no formal role until the plea is offered in open court. In some courts, however, the judge is actively involved in pushing both sides to negotiate, even facilitating negotiations in the judge’s chambers (office). On occasion, the judge will provide guidance to the defense and prosecutor by indicating what sort of a sentence would be acceptable.

11. Does the judge have to go along with the deal the lawyers work out? In many courts, prosecutors agree to recommend the bargained-for sentence without obtaining any explicit agreement beforehand from the judge. But the prosecutors know from past experience and the judge’s reputation whether the judge can be counted on, as many can, to rubberstamp the prosecutor’s recommendation. If the judge rebels or simply doesn’t follow the track record, and imposes a harsher sentence than the one the defendant was led to expect, the defendant is usually allowed

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to withdraw the plea and reassert his or her right to go to trial. But if the prosecutor has made it clear that the judge might not accept the recommendation, and the defendant pleads guilty anyway, the defendant may be stuck with the judge’s sentence. In other words, sometimes bargaining for the prosecutor’s recommendation will produce a sure result; other times it simply means that the defendant can test what the judge is willing to do; and still other times it guarantees nothing at all and risks a harsh sentence.

Prosecutors Who Back Out of a Deal Sometimes, prosecutors agree to certain deals out of court and then change their minds in front of the judge. In most places the defendant caught in such a situation would have the right to simply withdraw a plea of guilty. To deter prosecutors from going back on a deal, defendants should have the agreed-to terms put in writing before going before the judge. Where the prosecutor agrees only to make a recommendation or to not oppose the defense lawyer’s request for a certain sentence, however, the court may refuse to allow the defendant to withdraw the plea. For example, see Federal Rule of Criminal Procedure 11(e)(2); Santabello v. N.Y., U.S. Sup. Ct. 1971.

12. Do victims have a role in the plea bargaining process? Many victims are dissatisfied when defendants are allowed to enter plea

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bargains, feeling that the harms they suffered were disregarded and the defendants got off too easily. As a result of the efforts of victims’ rights groups, laws in many states now allow victims to have a say in the plea bargaining process. Michigan, for example, requires prosecutors to consult with victims before entering into plea bargains. In other states, victims have a legal right to come to court and address a judge personally before the judge decides whether to accept a plea bargaining. Still a third possibility for victims in many states is to consult with the probation officers before the probation officers prepare the presentence reports that often influence the terms of plea bargains. (For more information on probation reports and their role in the sentencing process, see Chapter 22.) Increased victim participation in plea bargaining means that for many defendants, good deals may be increasingly hard to come by.

13. What factors enter into a judge’s decision to accept or reject a plea bargain? As a practical matter, many judges will go along with a plea bargain as long as the agreed-upon sentence is within the range of what he considers fair. Usually this means determining if, given the seriousness of the crime and the defendant’s criminal record, the sentence seems appropriate in light of other sentences the judge has handed down. There are some other variables that may come into play, however. Particular judges might (rightly or wrongly) take into their calculation whether they remember the defendant from a previous appearance in

their courtroom and how they and members of the community feel (especially if the judge is up for reelection) about the crimes in question. Sometimes such whimsy as whether the judge woke up in a good mood or had a rough morning can also have an impact on his decisions later that day.

14. Assuming the agreement reached in a plea bargain is in the ­ballpark, what additional role will the judge play? Even if the deal seems fair to the judge, he is supposed to ask questions to determine whether the defendant is making what is known as a “knowing and intelligent” plea. What this means, essentially, is that the defendant knows and understands: • the charges against him • the consequences of the plea (both the sentence as it stands and the possible sentences that could be given were the defendant to have had a trial), and • the rights he is waiving (giving up) by pleading guilty, including: 1) the right to counsel if unrepresented, 2) the right to a jury trial, 3) the right to exercise his privilege against self-incrimination, and 4) his right to confront his accusers. Defendants should also know that, if they are not U.S. citizens, they risk deportation when they are convicted of a crime. Defendants are competent to waive counsel and plead guilty so long as they are capable of understanding the proceedings (Godinez v. Moran, U.S. Sup. Ct. 1993).

Chapter 20: Plea Bargains

In some courts, defendants who are pleading guilty are asked to fill in or sign a form waiving their rights.

Pleas That Aren’t Knowing and Intelligent If a defendant entered into a plea without counsel and did not appear, from a later review of the record, to have made a knowing and intelligent plea, that defendant may have grounds to request that the conviction stemming from the plea be stricken (removed) from the defendant’s record, or at least not considered in any future proceedings. As discussed more fully in Chapter 19, it can be important to try to strike prior convictions, because offenders tend to be sentenced more severely with each repeat offense. However, the United States Supreme Court has decided that even if a defendant did not have counsel or waive counsel before pleading guilty, as long as the defendant was not incarcerated after the plea was entered, the conviction may later be used to make future sentences more severe (Nichols v. U.S., 1994).

Usually the judge asks the defendant a fairly long list of questions to determine whether the plea is knowing and intelligent. And the defendant, following his attorney’s advice, quietly answers “yes” to all the judge’s questions. If the judge is satisfied after hearing the defendant’s answers, she will typically accept the deal. In some cases, she may want to see a presentence report prepared by the probation department, to consult with the crime victim, or to hear arguments

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from both the defense and prosecution supporting their deal. (See Chapter 22 for more on presentence reports and sentencing hearings.) Example: Assuming that Deputy Public Defender Durlofsky and Assistant District Attorney Van Lowe have agreed on the plea bargain in the Reback case from the previous example, the following might take place in the courtroom: Clerk: “Court is now in session, the Honorable Judge Kevin Lu presiding.” Judge: “In the matter of the State vs. Reback, Mr. Reback, how do you plead?” Defendant Reback: “Guilty, your Honor.” Judge: “Counsel, have you reached a settlement?” D.A.: “Yes, your Honor. The people have agreed to time served and probation.” Judge: “Mr. Reback, do you know that by pleading guilty you lose the right to a jury trial?” Def.: “Yes, your Honor.” Judge: “Do you give up that right?” Def.: “Yes, your Honor.” Judge: “Do you understand what giving up that right means?” Def.: “Yes.” Judge: “Do you know that you are waiving the right to cross-examine your accusers?” Def.: “Yes.” Judge: “Do you know that you are waiving your privilege against self-incrimination?” Def.: “Yes.” Judge: “Did anyone force you into accepting this settlement?” Def.: “No.” Judge: “Are you pleading guilty because you in fact possessed cocaine as charged?”

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Def.: “Yes.” Judge: “Mr. Reback, you are hereby sentenced to 12 hours in jail, which you have already served, and to two years’ probation.”

15. I don’t want to plead guilty, but I’m told the judge will treat me worse if I go to trial and lose. Is this true? In most cases, defendants are made aware in one way or another that the judge will be harsher on them if they go to trial and lose than if they accept a deal. This threat to punish people more severely if they go to trial, often communicated to the defendant directly and indirectly by the judge, prosecutor, and even defense counsel, sometimes causes innocent people to plead guilty. Innocent people also may be offered a “good deal” because the prosecutor may have little evidence against them. On the other hand, people against whom there is a strong case may have nothing to lose by going to trial, as they will likely not be offered very good deals to begin with. Such punitive practices blatantly violate the Constitution, because they punish a person for exercising the constitutional right to a jury trial. They continue because appellate courts tend not to interfere in the day-to-day aspects of how cases are handled in criminal courts. Nevertheless, a statute is unconstitutional if it allows for harsher punishment of defendants who ask for jury trials than for defendants who plead guilty (U.S. v. Jackson, U.S. Sup. Ct. 1968).

Making Sure the Defendant Really Is Guilty In addition to ensuring that pleas are knowing and intelligent, judges are also supposed to determine if there is an adequate basis in fact for accepting the plea; that is, whether the defendant committed the charged crime. When a defendant formally pleads guilty or no contest but all the while says he is innocent, a judge does not have to accept the plea (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 1970). In federal courts, defendants who want to plead guilty, or nolo contendere, must testify under oath to facts establishing their guilt.

16. What happens after a plea bargain is reached? Once the deal is worked out, the prosecution and defense will arrange a court hearing and inform the judge about the agreement. Assuming the judge accepts the deal or suggests changes that are satisfactory to both sides, the judge will hear the guilty or no contest plea in open court so that it becomes part of the record. Then, the defendant will be sentenced—either at the same time, which is typical in some less serious cases, or at a later sentencing hearing. (See Chapter 22 on sentencing.) In-custody defendants may be brought to court soon after the agreement is reached for a special hearing in which the judge takes the plea. Otherwise, the taking of the plea (and sometimes sentencing) will occur at the next scheduled hearing. Depending on when the deal is struck, the next scheduled appearance may be the arraignment, preliminary hearing, or trial.

Chapter 20: Plea Bargains

Section IV: The Strategy of Negotiating Plea Bargains Just as with other negotiations, such as those of a buyer and seller in a real estate transaction, there are strategies involved with plea bargaining.

17. When prosecutors file charges, do they already have a plea ­bargain in mind? Prosecutors often initially charge defendants with more serious or multiple offenses expecting to reduce or drop some as bargaining chips. Because a great many plea bargains occur when the prosecutor agrees to drop one or more of the charges facing a defendant in exchange for a guilty or no contest plea on one or more of the remaining charges, prosecutors tend to charge high in the beginning. Case Example: Officer Rhett Cutler stopped Charlotte O’Hara for an unsafe lane change. While writing the ticket, Officer Cutler spotted what looked like a small amount of marijuana on the back seat. O’Hara was arrested and charged with the original unsafe lane change offense, possession of marijuana, and DUI (driving under the influence, here of a drug). The charges were filed even though this was a first offense, O’Hara’s blood-alcohol level (tested just after arrest) was within the legal limit and there was no other ­evidence of the DUI (other than the marijuana itself and the unsafe lane change). Question: Why would the prosecutor charge such a serious offense, DUI, for what

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seems like a routine traffic violation and simple possession? Answer: It’s entirely likely that the prosecutors overcharged O’Hara in order to give themselves room to drop some charges so that O’Hara would feel that she was getting a good deal by pleading guilty. Other factors, such as strict time limits to get charges filed against a defendant, also can contribute to initial overcharging. (For more on charging, see Chapter 6.)

18. Will different defendants charged with the same crime in the same court end up with ­pretty much the same plea ­bargain? Not necessarily. The sentence may differ from case to case depending on a number of factors, such as: • whether the defendant has any prior convictions (“priors”) • how serious the offense was (whether it was a violent crime), and • how strong the prosecution’s case (evidence) is. A comprehensive study of plea bargains, conducted in the mid-1980s, found that defense lawyers also look for specific characteristics of the defendant that may be used to argue for leniency in any given case. (See “Plea Bargaining: Critical Issues and Common Practices,” U.S. Department of Justice, July 1985.) One defense lawyer described plea bargaining as follows: “Everyone in the system knows roughly what a given case is ‘worth.’ By balancing

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the seriousness of the crime and the defendant’s record (how much time the prosecution wants the defendant to do), against the strength of the evidence and the skill of the defense lawyer (how likely the prosecution is to get a conviction), a specific deal is arrived at” (How Can You Defend Those People: The Making of a Criminal Lawyer, James S. Kunen (McGraw-Hill)).

19. What is a “standard deal”? For many common offenses, prosecutors in a given courthouse will have worked out what is, in effect, a “price list” setting out the typical sentences for different offenses. For example, in one area, it may be the prosecutors’ practice to uniformly reduce all first-time DUI (driving under the influence) offenses where blood-alcohol tests reveal a marginal or borderline level to a lesser offense such as reckless driving. (See Chapter 24 for more on driving under the influence.)

20. How can I find out what the standard deal is for my case? Standard deals are typically not written down anywhere. Defense lawyers have to figure out what the “going price” (standard deal) is in a particular jurisdiction for the crime the defendant is charged with. Lawyers often find out by asking around among their colleagues. Also, some public defender offices keep internal records that they may share with private defense counsel. Because lawyers tend to be clannish, it can often be very difficult for a self-represented defendant to learn about a standard deal.

The best place to start, however, even for a layperson, may be a local public defender.

21. What other factors might influence the deal in my case? A number of other factors may influence particular plea bargains, including: • where the case is; • what court the case will be heard in and how congested the court calendar is; • which prosecutors are in charge and what their reputation is; and • which judge will preside over the case and how lenient or tough she is. Good defense lawyers should know this “lay of the land” information. Defense lawyers who are not personally familiar with these details tend to call and rely on colleagues who are more familiar with the local scoop. Such local factors can be critical. If the judge has a reputation for leniency, for instance, the defense lawyer may be able to get a better deal out of the prosecutor than if the judge has a get-tough reputation. Defendants also tend to find themselves in stronger bargaining positions when their cases are to be heard in busier courts such as in large, metropolitan areas where many judges’ (and prosecutors’) foremost concern is to get through their backlog.

22. How tricky is it to arrange a plea bargain? Do I have to have a lawyer to negotiate a good deal? Most of the time, “very tricky” and “yes.” To get a good deal, a defense lawyer may have

Chapter 20: Plea Bargains

to lobby the district attorney. And just as a child lobbying a parent for a later bedtime must curry favor, so too must defense lawyers; it’s critical to make sure at least that they don’t irritate the D.A. in charge. Some suggest, among various other strategies, approaching the D.A. very early on, before any affirmative steps are taken to further the case, and trying to appeal to the D.A.’s sense of compassion. Once prosecutors start working a case, they may become more entrenched in their position. It may then become more difficult to persuade them to drop or reduce certain charges. Further, when lobbying the D.A., wise defense attorneys often start at the bottom of the ladder in the prosecutor’s office. If a less experienced D.A. says no, a defense lawyer can always talk to a supervisor. But once the supervising lawyer says no, the defense may be out of luck. These tactics suggest how cautiously defense lawyers proceed with plea negotiations. And, if defense lawyers have to be careful about how they negotiate a deal, self-represented defendants must be even more careful. First, there are traps for the unwary pro per. For instance, though technically there are rules of evidence that prevent the use of information discussed in the course of a plea bargain from being used in trial (see Federal Rule of Criminal Procedure 11(e)(6)), the prosecution may find ways around this. The prosecution may, for instance, look for independent evidence that they find from leads given away by the defendant during these negotiations. Second, defense lawyers may be able to negotiate more effectively because they may

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have an emotional distance from the case that the defendant lacks. Third, it is quite likely that the prosecutor will have a bias against defendants representing themselves—or at least a preference for working with fellow lawyers—and will not offer the defendant the same deal he would give a defense lawyer. In one study, prosecutors flatly admitted personal prejudice against unrepresented defendants. (See “Plea Bargaining: Critical Issues and Common Practices,” U.S. Department of Justice, July 1985 at 43.) In misdemeanor cases in Texas, the study reported, unrepresented defendants discuss their cases directly with the prosecutors, “who generally advise them to plead guilty to avoid being ‘creamed’ if they go to trial and in order to get probation or diversion right away.” One prosecutor further admitted that in a weak case, “If there is a defense attorney, I’ll dismiss it … If there is no attorney, I’ll try to get the defendant to plead guilty.”

23. How do I know when to take the deal? One of the reasons why plea bargaining is so common is that both sides often have something to gain when cases are disposed of by guilty pleas. There is no way to know for sure, however, when the best time to take the deal is—when to hold off, when to stall, and when to just accept the sentence and move on. Plea negotiations are somewhat of a poker game. General wisdom suggests that it is often beneficial for defendants to delay, to hold off accepting the first offers. Underlying this

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theory is the idea that the more time that passes after the alleged offense, the weaker the state’s case may become. Witnesses disappear and forget, physical evidence may be lost. And all that time, the defense has a chance to build a better case. So, for some, the longer the defendant can hold out, the better the deal will be. Some prosecutors have a hard and fast policy, however, of escalating their demands if their first offer isn’t accepted. Many times, prosecutors who play such hardball have reputations that precede them, and defense lawyers know to accept their first offers if it’s reasonably clear that they would lose the case if it went to trial. Also, even if delays are beneficial to the defense, waiting is usually easier for those defendants who are out on bail than it is for in-custody defendants. Because of these variables, defendants should consult with their lawyers or a legal coach about strategies of waiting versus taking the deal, or going to trial. In some instances, such as where a prosecutor’s deal is no better than the likely sentence and where the defendant has a strong defense, the defendant may want to go to trial.

24. Don’t defense lawyers just push people to take deals because it’s easier for the lawyers? Many defendants have the perception that their lawyers just want to get them to plead to make life easier for the lawyers. And that perception seems to be stronger where court-appointed lawyers are involved. Often, before the first meeting with the client, the

defense lawyer will have seen the police report, spoken with the D.A. and possibly even agreed upon a tentative plea bargain. In one study from years back, defendants reported most often hearing, as the first words their lawyers spoke, “I can get you … if you plead guilty.” (See American Criminal Justice: The Defendant’s Perspective, by Jonathan D. Casper (Prentice Hall).) Many defendants today echo this sentiment, and some feel that their lawyers don’t even ask for the defendant’s version of the crime. These perceptions are based on some sound evidence. It is clearly true that it is less work for a lawyer to plead a client guilty than to go through a complete trial. Therefore, defendants must make sure their lawyer is working for their best interests, fairly explaining the pros and cons of any deals offered and not rushing or pressuring the defendant into accepting a deal. The final decision on whether or not to plead rests with the clients; defendants have a right to a trial if they want one. Case Example: Tonya Herding was caught on camera Thursday afternoon stealing clothes, jewelry, and perfume from Mays Department store. She was arrested at the store, taken to jail, and booked. Bail was set at $1,500, but Herding had no money to post bail. She told the police she would need a court-appointed lawyer. She spent the night in jail and was arraigned the next day. In court, just before her case was called, Herding met Nancy Herrigan, the P.D. assigned to the case. Herrigan told Herding she got a good deal and thought Herding should accept it to get out of jail.

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Question: Should Herding take the deal? Answer: It’s hard to say. If Herding has

25. Can I do anything if I feel that I made a bad deal?

people she can contact to lend her the money, she could probably get a bail bond for $150, and for another $150 or so she may be able to get a second opinion from a private defense lawyer. At a minimum, Herding should ask Herrigan to explain what the deal is and why it’s a good one. Is it, for example, the standard deal for such offenses? She should also possibly ask what Herrigan thinks of requesting a continuance and lobbying the D.A. further before accepting the present offer.

Plea bargains are usually binding. Defen­ dants cannot get out of deals just because they changed their minds. In certain (albeit rare) circumstances, however, where it would be unfair to allow a deal to stand, defendants may be allowed to withdraw guilty pleas. Examples of such circumstances may include where a defendant: • Does not have the “effective assistance of counsel” in making the deal. (See Chapter 17 for more on effective assistance of counsel.) For instance, the defendant was forced to plead before a public defender could be appointed; • Is not informed of the underlying charges before agreeing to the deal does not voluntarily agree to the deal; or • Is given a sentence that differs from the agreed-upon deal. ■

However, the perceptions can also be incorrect. Some studies show that public defenders do engage in more plea bargaining than private defense lawyers, but the deals they work out tend to be equivalent to or better for defendants on the whole than the results private counsel obtain from going to trial. In other words, some private counsel may push to go to trial when it would be better for the defendant to take the deal.

Chapter 21

The Trial Process Section I: Summary of the Trial Process…………………………………………………………………428 Section II: Choosing a Judge or Jury Trial………………………………………………………………429 1. Am I entitled to a jury trial?…………………………………………………………………………429 2. Am I likely to be better off with a judge or a jury?…………………………………………..429 3. Who should make the decision about judge or jury?……………………………………….430 4. What happens if I want a judge trial and the prosecutor asks for a jury trial?……………………………………………………………………………………431 5. If I ask for a jury trial, do I have to pay the jurors?…………………………………………..431 Section III: Jury Voir Dire……………………………………………………………………………………431 6. What is jury voir dire?………………………………………………………………………………..431 7. What kinds of questions can be put to potential jurors?…………………………………..431 8. Who asks the questions on voir dire—the judge or the attorney?……………………….432 9. What can the defense do to keep potential jurors they don’t want off the jury?………………………………………………………………………………………432 10. How many potential jurors can I challenge?………………………………………………….433 11. Who decides which jurors to challenge?……………………………………………………….434 12. Can the defense use voir dire to preview its case?…………………………………………..434 Section IV: Motions in Limine………………………………………………………………………………435 13. Can I find out before trial starts whether a judge will admit damaging prosecution evidence that I think is inadmissible?…………………………….435 14. If the defense doesn’t make a Motion in Limine, can an objection to prosecution evidence be made during the trial?………………………………………….435 15. Can the judge delay ruling on a Motion in Limine until trial?……………………………436 Section V: Opening Statements…………………………………………………………………………….436 16. What is an opening statement?……………………………………………………………………436 17. Can evidence be introduced during an opening statement?……………………………..436 18. When does the defense make its opening statement?………………………………………436 19. Can the prosecution or defense argue the merits of their case during opening statement?………………………………………………………………………….437

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Section VI: Prosecution’s Case-in-Chief…………………………………………………………………437 20. Why does the prosecution get to put on its case first?……………………………………..437 21. How can I find out exactly what the prosecutor has to prove in order to convict me?………………………………………………………………………………….437 22. To obtain a verdict of not guilty, does the defense have to mount an attack on every element of the charged crime?…………………………………………..438 Section VII: Direct Examination of Witnesses…………………………………………………………438 23. What is the purpose of the oath that all witnesses take?…………………………………..439 24. If I testify in my case, I just want to be able to tell what happened in my own words. Can I do this?………………………………………………………………….439 25. Can the defense decide the order in which its witnesses testify?………………………..439 26. Can the prosecutor call the defendant as a witness?………………………………………..439 Section VIII: Cross-Examination……………………………………………………………………………441 27. What is cross-examination?………………………………………………………………………..441 28. What kind of information does a cross-examining prosecutor want to get out of a defense witness?……………………………………………………………441 29. Can the defense attorney help the defendant prepare for cross-examination?……………………………………………………………………………………441 30. After the prosecutor cross-examines a defense witness, can the defense attorney ask that witness additional questions?……………………………………441 Section IX: Defense Motion to Dismiss………………………………………………………………….442 31. After the prosecution rests, can the defense ask the judge to rule on whether the prosecution has provided enough evidence to justify a conviction?……………..442 32. Does the defense have anything to lose by making a Motion to Dismiss?……………442 Section X: Defendant’s Case-in-Chief…………………………………………………………………….442 33. Are the rules for the defense part of the case the same as for the prosecution’s?…………………………………………………………………………………442 34. Is it always a good idea to present a defense case?………………………………………….442 35. Can the prosecutor respond to the evidence presented by the defense?……………..443 36. At the end of the case, can the judge instruct the jury to find the defendant guilty?………………………………………………………………………………….443

Chapter 21: The Trial Process

Section XI: Closing Argument………………………………………………………………………………444 37. During its closing argument, can the defense mention evidence it forgot to offer when it was putting on its case?………………………………………………………..444 38. If the defense realizes during closing argument that it forgot to offer some important evidence, is there anything it can do?……………………………..444 39. What should the defense talk about during its closing argument?………………………444 40. During closing argument, can the prosecutor play to jurors’ emotions, as in movies and TV?…………………………………………………………………………………445 41. Who argues first?………………………………………………………………………………………445 Section XII: Instructing the Jury……………………………………………………………………………446 42. How do jurors find out about the rules that they are to apply?………………………….446 43. Where do jury instructions come from?………………………………………………………..446 44. Does it really matter whether the defense can convince a judge to give its desired instruction?……………………………………………………………………..447 45. What do jury instructions typically cover?…………………………………………………….447 46. When instructing the jury, is it common for a judge to tell the jury what verdict the judge favors?…………………………………………………………………………….447 47. Can jurors look at the instructions while they deliberate?…………………………………448 48. What can the defense do to help jurors understand the instructions critical to the defense?……………………………………………………………………………….448 Section XIII: Jury Deliberations and Verdict…………………………………………………………..448 49. Can jurors discuss the case before the judge sends them off to deliberate?………….448 50. Besides premature case discussion, what other activities constitute juror misconduct during trial?……………………………………………………………………..449 51. Do jurors stay together until they reach a verdict?…………………………………………..449 52. How long do jurors have to reach a verdict?………………………………………………….450 53. What happens if the jurors cannot agree on a verdict?…………………………………….450 54. Can I do anything if a jury makes a mistake and convicts me?………………………….451

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his chapter explains criminal trial procedures and tactics. The discussion is general, since even judges in the same courthouse are apt to conduct trials differently. However, defendants who understand the general procedures and tactics associated with criminal trials are better able to help their attorneys make important trial decisions. Defendants can then also make an educated choice about whether to plead guilty before trial (perhaps as part of a plea bargain) or go to trial.

Section I: Summary of the Trial Process The many rituals associated with modern trials have developed over centuries. America’s common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. In summary form, those procedures are as follows: Judge or jury: The defense and prosecution decide whether they want the case tried by a judge or a jury. Select the jury: If a jury trial, the defense and prosecution select the jury through a question and answer process called voir dire. Address evidence issues: The defense and prosecution request the court in advance of trial to admit or exclude certain evidence (these requests are called motions in limine).

Opening statements: The prosecution and then the defense make opening statements to the judge or jury. Prosecution case-in-chief: The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor. Cross-examination: The defense crossexamines the prosecution witnesses. Redirect: The prosecution reexamines its witnesses (called redirect). Prosecution rests: The prosecution rests its case. Motion to dismiss: The defense has the option of making a motion to dismiss the charges. Motion to dismiss denied: Almost always, the judge denies the defense motion to dismiss. Defense case-in-chief: The defense presents its main case through direct examination of defense witnesses. Cross-examination: The prosecutor cross-examines the defense witnesses. Redirect: The defense reexamines the defense witnesses. Defense rests: The defense rests its case.

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Prosecution rebuttal: The prosecutor offers evidence to rebut the defense case (called rebuttal).

Posttrial motions denied: Almost always, the judge denies the defense posttrial motions.

Instructions settled: The prosecution and defense get together with the judge and figure out what instructions the judge should give the jury.

Sentencing if guilty verdict: Assuming a conviction, the judge either sentences the defendant on the spot, or sets sentencing for another day.

Prosecution closing argument: The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it, and explaining why the jury should render a guilty verdict. Defense closing argument: The defense makes its closing argument, summarizing the evidence as the defense sees it, and explaining why the jury should render a not guilty verdict (or at least a guilty verdict on a lesser charge). Jury instructed: The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges “preinstruct” juries, reciting instructions before closing argument or even at the outset of trial.) Jury deliberations: The jury (if it is a jury trial) deliberates and tries to produce a verdict by (usually) unanimous agreement. Posttrial motions if guilty verdict: If the jury produces a guilty verdict, the defense often makes posttrial motions (requesting the judge to override the jury and either grant a new trial or order the defendant acquitted).

Section II: Choosing a Judge or Jury Trial This section is about what a defendant should consider when deciding whether to ask for a jury trial.

1. Am I entitled to a jury trial? The U.S. Constitution guarantees the right to trial by jury in all but “petty” cases (cases in which the defendant cannot be imprisoned for more than six months). Defendants charged with felonies and serious misdemeanors are entitled to jury trials. Defendants charged with minor misdemeanors punishable only by fines— called infractions (for example, speeding)— are not. (See Chapter 17 for more on the right to a jury trial.)

2. Am I likely to be better off with a judge or a jury? Defendants should normally opt for jury trials unless they have a good reason to waive (give up) a jury and leave the decision to a judge sitting without a jury. The reasons this is often the best choice are that it allows defendants to:

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• Play the percentages. Most jurisdictions require unanimous jury verdicts. For example, if a case is tried to a 12person jury, the prosecutor has to convince all 12 of the defendant’s guilt. A reasonable doubt in the mind of any single juror will prevent the defendant’s conviction—assuming the juror acts conscientiously. By contrast, a judge offers the defense but one mind in which to raise a reasonable doubt. • Have a hand in selecting jurors. Before the start of a jury trial, the defense can question and excuse (dismiss) some potential jurors during jury voir dire. In most states, however, unless it can prove actual bias on the part of the judge, the defense has to accept the judge assigned to the case. Despite these reasons, the defense is sometimes better off with a judge trial. For example, the background of a certain judge might make her sympathetic to the defense. Or, the success of the defense case may rest on a technical legal argument that the judge is more likely than a jury to adopt.

The “One Free Bite” Rule Some states allow the defense to dismiss a judge without having to prove that the judge is biased. The defense simply files an affidavit stating, in effect, “We want a different judge.” (See, for example, California Code of Civil Procedure § 170.6.) But the defense can use this affidavit procedure only once; the defense must accept the next judge assigned to the case—unless, of course, the defense can show actual bias.

3. Who should make the decision about judge or jury? The judge vs. jury trial decision is an important one, and the defendant should normally make it after consulting with her attorney. (This is specified in Standard 4-5.2, ABA Standards for Criminal Justice.) Usually, defense attorneys have greater access than defendants to information about judges, their backgrounds and their attitudes, and to the technical merits of the case. But a defendant may be as equally equipped as the attorney in gauging the mood of the community toward the police and the type of crime with which the defendant is charged, and in assessing the emotional appeal of the case.

The Jury Trial “Penalty” Some judges apply an unwritten and unfair jury trial penalty policy, giving harsher sentences to defendants who opted for a jury rather than a judge trial. For example, in off-the-record conversations, judges often tell defense attorneys something like, “If your client takes a bench (judge) trial and is convicted, he’s looking at a couple of years in jail. But if he insists on a jury trial, all bets are off.” The implication is that defendants who put the system to the added time and expense of a jury trial will pay for it in their sentences. Before deciding on a judge or jury, defendants should try to find out what the risks are.

Chapter 21: The Trial Process

4. What happens if I want a judge trial and the prosecutor asks for a jury trial? If either side requests a jury—prosecutor or defense—trial will be to a jury.

5. If I ask for a jury trial, do I have to pay the jurors? No. Unlike in civil trials, in which the parties pay the jury fees, the government pays jury fees in criminal cases.

The Jury Waiver in the Leopold and Loeb Case The trial of Leopold and Loeb took place in Chicago in the 1930s. Thinking themselves too smart to be caught, two wealthy but mentally disturbed young men in search of a thrill killed a young boy. After their arrest, their parents hired the famous Clarence Darrow to defend them. Dramatically, Darrow waived a jury trial and pleaded his clients guilty. Under then-existing Illinois law, a judge and not a jury then had to sentence Leopold and Loeb. Darrow figured that he had a better chance of saving his clients’ lives in front of a judge. He was right; they were given life sentences, and Leopold was eventually paroled.

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Section III: Jury Voir Dire This section is about the process of selecting a jury in a criminal trial.

6. What is jury voir dire? Usually pronounced “vwar deer,” jury voir dire is the jury selection process. Potential jurors answer questions about their backgrounds and attitudes, and the prosecutor and defense can challenge potential jurors who demonstrate from their answers that they might not be fair and impartial. If a judge allows a challenge (and sometimes the judge has no choice), the challenged juror is excused and replaced from a larger pool of potential jurors.

7. What kinds of questions can be put to potential jurors? Some voir dire questions are routine; they are put to potential jurors in just about every criminal case. For example, potential jurors are routinely asked whether they know the attorneys, the defendant, or any witnesses, where they work, and whether they have ties to law enforcement. Other questions are case-specific. For example, if the defendant is charged with making a fraudulent insurance claim, potential jurors will undoubtedly be asked about their attitudes toward and experiences with insurance companies. In some types of cases (for example, rape cases), voir dire questions can be very invasive of the potential jurors’ privacy. When this occurs, judges often give the potential jurors an option to answer in the

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judge’s chambers, outside the presence of the other potential jurors.

8. Who asks the questions on voir dire—the judge or the attorney? In the past, attorneys did all voir dire questioning—except the handful of routine questions that the judge would ask. In many state courts, this is still true. However, it’s increasingly common for judges to do most of the questioning in an effort to speed up voir dire and prevent attorneys from using voir dire to build rapport with the jurors and plant ideas about their side of the case. Especially in the federal courts, the prosecution and defense may be limited to submitting written questions that they want the judge to ask.

9. What can the defense do to keep potential jurors they don’t want off the jury? The defense and prosecution can each challenge potential jurors. A challenge is a request for the judge to excuse (dismiss) the potential juror in question. The rules allow for two types of challenges: 1) challenges for cause, and 2) peremptory challenges. A challenge for cause asks the judge to excuse a potential juror on the ground that the juror’s answers demonstrate actual bias. Both sides are entitled to jurors who are fair and impartial. Jurors who are predisposed in favor of one side or the other cannot legally serve on a jury. For example, a judge will undoubtedly grant a defendant’s challenge for cause if a potential juror says something

like, “I think police officers do a marvelous job under almost impossible conditions. I’d find it very difficult to disbelieve any testimony a police officer gives.” Such an answer shows that the juror is predisposed to believe a police officer over the defendant, and is not, therefore, fair and impartial. Defendants often seek to exercise challenges for cause privately—perhaps in the judge’s chambers. That way, if the judge denies the challenge, the defendant is not faced with an angry juror. Peremptory challenges allow either side to excuse potential jurors even if their answers do not demonstrate actual bias. If the defense or prosecution has a hunch or an intuition that a potential juror favors the adversary, that side can use a peremptory challenge to excuse that juror. Express bias aside, a defense attorney may think that a juror’s background will incline that juror against the defense and will use a peremptory challenge to bump that juror. For instance, if defense counsel believes that older jurors are most likely to accept the defendant’s account of events, the attorney will use peremptory challenges to bump younger jurors, hoping that their replacements will be older. The judge must grant a peremptory challenge, regardless of whether the judge believes the challenged juror is biased. However, each side is given only a limited number of peremptory challenges. (See Question 10 for limits on peremptory challenges.)

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Judges Do Not Often Grant ­Challenges for Cause

Constitutional Limits on Peremptory Challenges

Even though a potential juror’s background suggests a probable partiality toward one side or the other, most judges will allow the juror to sit as long as the juror insists that she can give both sides a fair trial. For instance, assume that an alleged victim and a potential juror are both plumbers. The defendant may believe that the juror will subconsciously favor the prosecution. Nevertheless, if the potential juror swears to be open-minded and fair, the judge would probably deny the defendant’s challenge for cause. The defense might then use one of its peremptory challenges to strike this juror.

Until the mid-1980s, attorneys could exercise peremptory challenges for whatever reasons they chose. Since then, courts have ruled that attorneys cannot excuse potential jurors because of the jurors’ race or gender. It is likely that courts will continue to limit the scope of peremptory challenges.

Case Example: Marcus Nieman is charged with stealing merchandise from Southstrom’s Department Store. One potential juror, Victoria Macy, is employed as a clerk in a different department store. In response to Nieman’s questions, Macy states that shoplifters hurt everyone because they force shops to raise prices, and that she supports cameras in dressing rooms and plainclothes floor detectives as good methods of deterring theft. Macy insists that she will be fair to both sides and is not predisposed to believe the department store’s security guard. Nieman challenges Macy for cause, asking the judge to excuse her on grounds of bias. Question: Will the judge grant the challenge and dismiss Macy? Answer: Probably not. Macy’s feelings are likely to be shared by the public at large. Since Macy insists that she is open-minded and will base her verdict on the evidence, she will remain as a juror unless Neiman uses a peremptory challenge to bump her.

Alternate Jurors In many cases, judges try to seat regular and alternate jurors. The alternates sit in throughout a trial, but will not step in and decide the case unless one of the regular jurors becomes ill or for some other reason has to be excused from the jury. Without an alternate, the judge might have to declare a mistrial and start a trial all over again.

10. How many potential jurors can I challenge? Each side has an unlimited number of challenges for cause. However, the number of peremptory challenges is very limited. For example, Federal Rule of Criminal Procedure 24 grants each side only three peremptory challenges in misdemeanor cases. Most states have similar limits. In cases involving murder and other very serious charges, each side may have as many as 20–25 peremptory challenges. Regardless of the number, the defense has to carefully save its peremptory challenges for potential jurors whom they cannot successfully challenge for cause, but who are most likely to harbor biases in favor

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of the prosecution or otherwise be likely to favor the prosecution or reject the defense story. Case Example: In the Marcus Nieman example in the previous section, assume that the judge denies Nieman’s challenge to Victoria Macy for cause. Question: Should Nieman use a peremptory challenge to kick Macy off the jury? Answer: This is a difficult judgment for Nieman (and his lawyer) to make. Since Nieman has only a few peremptory challenges in this misdemeanor case, he has to think about whether other potential jurors (including those who might replace Macy) are even more unacceptable than Macy. Nieman should at least try to challenge Macy for cause out of the jury’s hearing. If Macy knows that Nieman unsuccessfully challenged her fitness to serve on the jury, Nieman may have no choice other than to use one of his precious peremptory challenges after the judge denies the challenge for cause.

11. Who decides which jurors to challenge? Many defense attorneys think that deciding which jurors to challenge is a matter of professional craft that the defendant should leave to the attorney. Standard 4-5.2 of the ABA Standards for Criminal Justice supports the lawyers’ attitude, though it advises attorneys to consult with clients before challenging potential jurors “where feasible and appropriate.” Defendants are often at least as sensitive to potential jurors who give

off “bad defense vibes” as are attorneys, and ordinarily defendants should ask their attorneys to consult them during jury selection.

Jury Consultants Defendants who can pay for it often hire jury consultants to assist in the selection of jurors. Typically, jury consultants investigate people’s attitudes in the locality where a trial will take place and develop profiles of jurors who are likely to favor either the defense or the prosecution. For example, a jury consultant may report that “collegeeducated females under the age of 35 are likely to favor the defense.” The defense can take such information into account when deciding which jurors to challenge.

12. Can the defense use voir dire to preview its case? Attorneys have often tried to use voir dire to begin persuading jurors to vote their way. The ensuing delays in starting trials were a major reason that judges in many areas have taken over voir dire questioning. Nevertheless, the defense can use even a limited questioning opportunity to “educate” jurors about the fundamental rules favoring defendants. Consider these questions that the defense might ask: • “Does each of you understand that the mere fact that Mr. Binder has been arrested and charged with a crime is not evidence of guilt?” • “Does anyone disagree with the principle that as she sits here now and throughout the entire trial, Ms.

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Ouspenskaya is presumed innocent unless and until the prosecution convinces you beyond a reasonable doubt of her guilt?” The defendant would not really expect a potential juror to disagree with such basic principles. The questions emphasize to the jurors that the burden of proof favors defendants and that all defendants are presumed innocent until proven guilty.

Section IV: Motions in ­Limine This section is about getting the judge to rule on the admissibility of evidence before a party tries to introduce it in front of the jury.

13. Can I find out before trial starts whether a judge will admit ­damaging prosecution evidence that I think is inadmissible? Sometimes, by making a Motion in Limine. A defendant can file a written Motion in Limine, or make the motion orally. The purpose of the motion is to ask a judge for a pretrial order that evidence a prosecutor intends to offer at trial is inadmissible. For example, a defendant might ask for a ruling that “the prosecution cannot refer to the fact that the defendant has previously been convicted of a crime.” If the judge grants the Motion in Limine, neither the prosecutor nor prosecution witnesses can refer to the conviction during the trial.

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14. If the defense doesn’t make a ­Motion in Limine, can the defense make an objection to prosecution evidence during the trial? Yes. The defense can wait until a prosecutor offers evidence during trial, and then make an objection. But waiting until trial raises the danger that jurors will hear objectionable evidence before the defense has a chance to object. For example, testimony might unfold as follows: Prosecutor: “Had you ever seen the defendant before?” Witness: “Yes, the defendant was in a fight in a different bar the week before.” Defendant: “I object to any reference to an earlier fight, it’s irrelevant.” Judge: “I agree. The testimony is stricken, and I instruct the jurors to disregard it.”

Even though the judge upholds the defense objection and tells the jurors to disregard the improper evidence, some jurors may be influenced by it. As attorneys are wont to say, “It’s hard to unring a bell.” By making a Motion in Limine, the defense hopes to prevent jurors from hearing improper evidence in the first place. And in cases where the judge rules that the evidence in question is admissible, it may still benefit the defendant to file a Motion in Limine, because even when the judge rules against the defense in a Motion in Limine, at least the defense knows ahead of time that the damaging evidence will be allowed in at trial, and can plan its strategy accordingly.

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15. Can the judge delay ruling on a Motion in Limine until trial? Yes, and judges often do so. The judge may want to wait until the trial is underway before ruling on the admissibility of evidence. Nevertheless, a Motion in Limine is a useful way for defendants to “red flag” an objection to important but potentially highly prejudicial prosecution evidence. If and when the prosecutor attempts to introduce the particular evidence, the judge will have been given notice by the pretrial motion that this is critical evidence and may be more willing to take the time during the trial to carefully consider its admissibility.

Section V: Opening Statements This section is about the introductory statements to the jury that attorneys are permitted to make at the start of the case.

good opening statement whets a judge’s or jury’s appetite for the evidence to come.

17. Can evidence be introduced ­during an opening statement? No. What is said during opening statement is not evidence. The judge or jury cannot rely on facts referred to during the opening statements when deciding the case. For example, assume that during opening statement a prosecutor says, “You’ll hear the defendant’s next-door neighbor testify that the defendant drank three beers before leaving for work that morning.” If the nextdoor neighbor does not testify, or testifies but fails to mention three beers, the judge or jurors cannot use the prosecutor’s assertion as evidence that the defendant drank three beers. Rather, during closing argument the defense attorney would most likely attack the prosecution’s case by pointing out the prosecutor’s failure to deliver the evidence promised in the opening statement.

16. What is an opening statement? An opening statement is an opportunity for the defense and prosecution to describe what they will try to prove and what evidence they plan on offering. The prosecution and defense cases often emerge piecemeal from a number of witnesses, and are likely to be interrupted by court recesses, cross-examination, and the like. Thus, an opening statement allows each side to make it easier for the judge or jury to follow their case. Good opening statements are like roadmaps and movie previews. Like a roadmap, an opening statement tells a judge or jury where the defense or prosecution case is headed. And like a movie preview, a

18. When does the defense make its opening statement? In most jurisdictions, the defense can make an opening statement either immediately after the prosecutor’s (before any witnesses testify), or after the prosecution’s casein-chief is over (before defense witnesses testify). When given the choice, defendants usually choose the first option. Even though judges repeatedly admonish jurors not to evaluate a case until all the evidence is in, jurors weigh information as they hear it. This gives prosecutors a big advantage, because

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they get to present evidence first. Defense opening statements are one way to keep jurors’ minds open until defendants get to present their evidence. On the other hand, if the defense strategy is to defer certain key decisions— such as whether the defendant will testify— until after the prosecution case is finished, it may be better to defer the defense opening statement until the beginning of the defense case.

19. Can the prosecution or defense argue the merits of their case during opening statement? No. Since opening statement serves only as a preview, neither the defense nor the prosecution can argue its case. For example, a defendant cannot explain why the defense case is stronger than the prosecution’s. Some judges allow more argument during opening statement than other judges. Whatever leeway a judge allows a prosecutor should also be given to the defense. Case Example: Rex Kars is on trial for assaulting Herman Shepherd. Kars claims that he acted in self-defense. The prosecutor makes the following remarks during opening statement: “Frank Enstein will testify that he saw the defendant Kars strike the first blow. I submit that Enstein is totally credible. He had the best view of anyone at the scene and is completely unbiased, and his testimony is more credible than any evidence the defendant will offer.”

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Question: Is this a proper opening statement?

Answer: No. The prosecutor is making an argument. Opening statement is limited to a preview of evidence; it is not the time to argue which side’s evidence is more credible.

Section VI: Prosecution’s Case-in-Chief This section is about the prosecution’s case—what the prosecutor has to prove and how strong the proof has to be.

20. Why does the prosecution get to put on its case first? The prosecution goes first because it has the burden of convincing the judge or jury of the defendant’s guilt. Until the prosecution puts on enough evidence to satisfy this burden, there’s no reason for the defense to put on a case at all.

21. How can I find out exactly what the prosecutor has to prove in order to convict me? To figure out what the prosecutor has to prove, defendants have to very carefully read the criminal laws they are charged with violating. Often, the legal definition of a crime differs from its popular understanding. For example, in many jurisdictions drivers may be convicted of drunk driving simply because their blood alcohol level exceeded the legal limit. The prosecution does not

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have to prove how the alcohol affected their driving. Most crimes consist of two or more discrete subcomponents called elements. To prove a defendant guilty, a prosecutor has to support each element with proof. If the prosecutor fails to prove any one element beyond a reasonable doubt, the defendant should be found not guilty. For example, assume that Phil Thee is charged with grand theft. In many states, grand theft consists of the following elements: 1. the defendant 2. took property of another 3. worth more than $200 4. with the intent to permanently deprive the owner of the property that was taken. If the prosecution fails to offer enough evidence to satisfy each element during its case-in-chief, Phil must be acquitted. For instance, the prosecution may prove that Phil took someone’s property, but fail to prove the property’s value (Element 3). Or, the prosecution may prove the value of the taken property, but fail to prove that Phil intended to permanently deprive the owner of possession (Element 4). In either instance, the judge or jury would have to acquit Phil.

22. To obtain a verdict of not guilty, does the defense have to mount an attack on every element of the charged crime? No. The prosecution has the burden of proving beyond a reasonable doubt each and every element of the crime. This means that if the defense raises a reasonable doubt as to any one element, the defendant must be found not guilty. This is why the defense typically focuses its attack on one or two elements. For example, return to the case of Phil Thee, the defendant charged with grand theft. In response, Phil might attack just one of the elements that the prosecution has to prove. For example, Phil may concede that someone may have stolen property worth more than $200, but offer evidence that it wasn’t he who stole it. Or, Phil may concede that he took property worth more than $200, but claim that he was borrowing it pursuant to an agreement he had made with its owner. Whatever the basis of attack, defendants rarely contest every element of a charge. (For more information about focusing on the elements of a crime as a defense, see Chapter 13. For more information about finding and interpreting criminal statutes, see Chapter 12 and Chapter 27.)

Section VII: Direct Examination of Witnesses This section explains how a party or the party’s attorney must question that party’s own witnesses.

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23. What is the purpose of the oath that all witnesses take? The purpose of the oath is to impress on witnesses the seriousness of testifying in court. By swearing to tell the truth, witnesses also subject themselves to perjury charges should they lie about an important matter. (Witnesses who for religious or other reasons do not care to take an oath and swear to tell the truth may instead “affirm” that they will testify truthfully. Whether a witness “swears” or “affirms” to tell the truth, the effect is the same.)

Rarity of Perjury Prosecutions Witnesses bent on perjury have little to fear from prosecutors. Perjury isn’t a high priority crime for most prosecutors (except, perhaps, for Kenneth Starr), in part because it can be difficult to prove actual knowledge of falsity. An exception to this might be in cases widely reported in the media. When a witness appears to commit perjury in full view of millions, prosecutors may have no choice other than filing perjury charges. An example of this was Detective Mark Fuhrman, who pled guilty to perjury after lying during 1995’s internationally-televised murder trial of O.J. Simpson.

24. If I testify in my case, I just want to be able to tell what happened in my own words. Can I do this? Probably not. Testimony is supposed to emerge in question-and-answer form, not as an unbroken narrative. When witnesses respond to specific questions, adversaries know ahead of time what general

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information the witness is likely to provide, and have time to object if necessary. This means that defendants represented by attorneys usually have to tell their story in response to the attorney’s questions. Self-represented defendants, on the other hand, can’t sensibly pose questions to themselves. (Woody Allen demonstrated this to great comic effect in the famous movie Bananas.) Thus, judges usually permit selfrepresented defendants to testify in narrative form—that is, to tell their story in their own words. But many judges will interrupt the defendant’s narrative to ask questions.

25. Can the defense decide the order in which its witnesses testify? Yes. The defense can call witnesses in whatever order it chooses. However, the defendant often testifies last (if at all). Since the defendant cannot be excluded while other witnesses testify, a defendant who testifies last has the benefit of hearing what the other witnesses have said and listening to the prosecutor’s cross-examinations.

26. Can the prosecutor call the defendant as a witness? No. Under the Fifth Amendment to the U.S. Constitution, the defendant has an absolute right not to be called as a witness nor to testify unless he chooses to do so.

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Tips for Witnesses People whose testimony is needed in court are usually served with subpoenas, which are court orders. (See the sample subpoena at the end of this chapter.) Subpoenaed witnesses who fail to appear in court on the subpoena date can be taken into custody. Witnesses should understand the following rules: • Witnesses can and should discuss their testimony ahead of time with the attorney for the side that called them. Witnesses should know generally what questions will be put to them. • Witnesses can talk informally to the attorney for the other side if they want to, but they do not have to. • When testifying, witnesses should limit their answers to the questions asked. They should not volunteer additional information. Even if they are just trying to be helpful, what they say may be legally improper—and it may end up hurting rather than helping. • Witnesses who don’t understand a question should ask the questioner to rephrase it. • Witnesses often needn’t worry if they have a temporary loss of memory. After a witness

replies, “I don’t remember,” evidence rules allow attorneys to show the witness letters, reports, memos, or any other documents to remind the witness of forgotten information. However, after having his or her memory stimulated in this manner (called “refreshing recollection”), the witness must still be able to testify from memory. If the witness says, after viewing a document, “You know, I still can’t remember,” the witness will not be allowed to simply testify to what’s in the document. • Witnesses who are worried about wasting time in court until they testify should ask the attorney who subpoenaed them about an “on call” procedure. Witnesses who are on call agree to be available to come to court and testify on short notice, but in the meantime can go about their daily tasks. • Witnesses should keep their cool during cross-examination, and answer an adversary’s questions in the same manner that they answered questions asked by the attorney for the side favored by their testimony—that is, make sure they understand the question and limit their answers to what the questions ask.

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Section VIII: Cross-Examination This section is about whether a party or a party’s attorney may question witnesses called by the other party.

27. What is cross-examination? After a witness has been called by the defense or prosecution and given testimony under direct examination, the other side has an opportunity to question the witness about the testimony. Most trial attorneys agree that cross-examination is one of the most important tools for getting at the truth.

28. What kind of information does a cross-examining prosecutor want to get out of a defense witness? A prosecutor’s usual cross-examination goal is to undermine the credibility (believability) of testimony given by the defendant and other defense witnesses during direct examination. The defense can expect crossexamination to cover these possible areas: • The witness’s prior criminal record, if any, for the purpose of impeaching the witness’s credibility. Prior arrests are not generally admissible in evidence, but prior convictions that bear on the ability of the witness to be truthful are, especially if the convictions are for felonies; • Inconsistencies between the witness’s testimony and any statements the witness gave to police officers or others; • If the witness is the defendant, the defendant’s motive to commit the crime.

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For example, if the defendant is charged with the crime of theft, the prosecutor might ask questions suggesting that the defendant needed a large sum of cash; and • If the witness is the defendant, the defendant’s physical ability to do whatever the defendant claims to have done. For example, the prosecutor may try to cast doubt on the defendant’s claim to have gotten from one house to another in 15 minutes, or to have been able to observe the color of a car at night.

29. Can the defense attorney help the defendant prepare for crossexamination? Yes. Defense attorneys often play the part of a prosecutor and rehearse the prosecutor’s likely cross-examination with defendants (and defense witnesses) before trial. Such rehearsals are perfectly legal and proper.

30. After the prosecutor crossexamines a defense witness, can the defense attorney ask that witness additional questions? Yes. This is known as redirect examination, and it gives the defendant or witness a chance to respond to the prosecutor’s credibility attacks during cross-examination. For example, if the prosecutor asked the defendant about a prior inconsistent statement, the defendant will have a chance to explain the reason for the inconsistency. Also, redirect gives the defendant or other

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witness an opportunity to clarify testimony that was cleverly but misleadingly elicited by the prosecutor during cross. For other evidence rules affecting cross-examination, see Chapter 18, Section III.

is strong enough to justify a guilty verdict. However, to preserve their own reputations, defense attorneys usually don’t move to dismiss if the prosecution’s case is obviously strong enough to justify a guilty verdict.

Section IX: Defense Motion to Dismiss

Section X: Defendant’s Case-in-Chief

This section is about when the defense can ask the judge to dismiss the charges in the middle of the trial.

This section is about how the defense presents its own case.

31. After the prosecution rests, can the defense ask the judge to rule on whether the prosecution has provided enough evidence to justify a conviction? Yes. Even in a jury trial, the judge has the power to decide that the prosecution’s case by itself isn’t strong enough to support a guilty verdict. The defense can ask the judge to exercise this power by making a Motion to Dismiss at the conclusion of the prosecution’s case-in-chief. If this motion is granted, the defense will be saved the necessity of presenting its own case. And the dismissal will operate as the legal equivalent of an acquittal, which means the defendant cannot be retried.

32. Does the defense have anything to lose by making a Motion to Dismiss? Generally, no. The motion is made out of the jury’s presence. Therefore, even if the judge denies the motion, the jury is unaware that the judge thinks that the prosecution’s case

33. Are the rules for the defense part of the case the same as for the prosecution’s? Yes. Like prosecutors, the defense can call witnesses in whatever order they wish. Also, they must elicit testimony in questionanswer form, and cannot ask leading questions of defense witnesses.

34. Is it always a good idea to present a defense case? No. Sometimes the defendant’s best argument is that the prosecution evidence is not strong enough to prove guilt beyond a reasonable doubt. In such situations a defendant may choose to rest on the presumption of innocence and neither call witnesses nor present other evidence. This tactic may be riskier in a jury trial. Jurors are probably more prone than judges to thinking, “If the defendant had a good case, why didn’t we get to hear it?” Thus, defendants should carefully review with their lawyers any decision to rest on the presumption.

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Case Example: June Buggs is on trial for burglary. June’s defense is mistaken identity; she claims to have been at home at the time of the burglary. The defense effectively undermined the credibility of the only prosecution witness who claimed to be able to identify June as the burglar. Moreover, June was home alone at the time of the burglary, and has told her lawyer that her memory of the evening is impaired by the fact that she had been smoking marijuana. Question: Should June consider not presenting a defense case? Answer: Yes. The prosecution case is weak, and June may do her case more harm than good if she is unable to remember clearly what she was doing on the night of the burglary. Because her strongest argument may be the prosecution’s inability to prove her guilty beyond a reasonable doubt, June may reasonably choose to rest on the presumption.

35. Can the prosecutor respond to the evidence presented by the defense? Yes. After the defense “rests” (finishes presenting evidence), the prosecutor normally has a chance to offer “rebuttal” evidence. The prosecutor can offer rebuttal evidence only to attack evidence offered during the defense case. The prosecutor cannot use rebuttal as an excuse to rehash the prosecutor’s case-in-chief or put in new evidence unrelated to what the defense presents.

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Case Example: Cara Way is on trial for grand theft. During the defense case-in-chief, Cara’s attorney calls Chia as an alibi witness to testify that Chia and Cara were at the movies at the time of the theft. On rebuttal, the prosecutor wants to call two witnesses: 1) Cain, to testify that Cain recently overheard Chia tell Cara, “If you’re ever in trouble, you can count on me for an alibi”; and 2) Abel, to testify that Cara was the person he saw commit the burglary. (Abel already testified to this during the prosecution’s case-in-chief.) Question: Can either Cain or Abel testify on rebuttal? Answer: Cain can testify, because Cain’s testimony attacks evidence presented by Cara. Abel cannot testify, because it would be a rehash of testimony already given.

36. At the end of the case, can the judge instruct the jury to find the defendant guilty? No. As the representative of the community, the jury has the absolute power to find any defendant not guilty. The judge has no power to instruct the jury to return a guilty verdict. And if the jury comes back not guilty, the judge has no power to change its verdict or order a new trial.

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Section XI: Closing Argument This section is about the function of the closing argument and the limits placed on it by the courts.

37. During its closing argument, can the defense mention evidence it forgot to offer when it was putting on its case? No. Just as the opening statement is limited to evidence that will be offered (see Question 16), so is closing argument limited to evidence that has been offered. Referring to evidence that was not offered during testimony is improper argument outside the record.

38. If the defense realizes during closing argument that it forgot to offer some important evidence, is there anything it can do? A defense that rests its case having forgotten to offer important evidence can ask the judge for permission to reopen the case-inchief. Even during closing argument, the judge has the power to allow the defendant to present additional evidence. The more important the evidence, and the better excuse the defendant can offer for not presenting the evidence earlier, the likelier the judge is to allow a defendant to reopen the defense case.

Case Example: Jezza Bell is on trial for child endangerment for leaving her infant son unattended while she went shopping. Jezza’s defense was that she left the child in the care of a responsible babysitter who took off without Jezza’s knowledge. Jezza testified that a neighbor, Jebediah, saw the babysitter with Jezza’s son when Jezza left. However, Jezza could not locate Jebediah and thus could not call him as a witness. Just before Jezza finishes her closing argument, Jebediah rushes into court, apologizes for having been away and offers to testify as above. Question: What should Jezza do? Answer: Jezza should immediately ask the judge for permission to reopen her case-inchief. Jezza should explain what Jebediah will say, and her inability to produce him as a witness earlier. Jebediah’s testimony is important, and the judge should grant Jezza’s request.

39. What should the defense talk about during its closing argument? Closing argument is an opportunity for the defense to explain why the evidence requires a not guilty verdict. Most defense closing arguments include these features: • A reminder that the prosecution has the burden of proving its case beyond a reasonable doubt, and that the defendant is presumed innocent; • A summary of important evidence with a defense spin, especially if the trial has extended over a few days; • An attack on weaknesses in the prosecution’s case. Typically, the defense tries to stress that prosecution

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witnesses were biased or had motives to lie (for instance, a prosecution witness had charges dismissed in return for testifying against the defendant), or gave inconsistent testimony, or did not have a sufficient opportunity to perceive events, or offered implausible testimony; and • If the defendant presented evidence, support for the strength of that evidence. The typical reasons are the converse of arguments attacking a prosecutor’s case. For example, the defense may stress that defense witnesses were unbiased, and that they testified in a consistent manner.

Dramas Often Overemphasize the Importance of Closing Argument Movie and TV dramas often portray closing argument as the most critical phase of trial. Through words as stirring as Marc Antony’s over the fallen Caesar, movie attorneys always seem to sway jurors with last-minute dramatic appeals. (An excellent example is defense attorney Jake Brigance’s final argument in “A Time to Kill.”) However, judges and jurors rarely decide a case according to which attorney has the better oratorical skills. Studies indicate that most of the time, judges and jurors have made up their minds before closing argument.

40. During closing argument, can the prosecutor play to jurors’ emotions, as in movies and TV? Dramas often misleadingly portray what prosecutors can say during closing argument. Prosecutors are supposed to

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appeal to jurors’ reason, not their emotion and prejudice. Prosecution arguments that emphasize name-calling and community biases rather than evidence are improper. The defense should ask the judge to instruct jurors to ignore such comments. If the prosecutor’s comments are very prejudicial, the defense can ask the judge to declare a mistrial. Case Example: Abner Savage is charged with sexually molesting a young girl. During closing argument, the prosecutor calls Savage “a piece of vermin, a filthy beast who must be locked up like the wild animal that he is.” The prosecutor also tells the jurors to “send a message to all other would-be child molesters in our community that this kind of behavior won’t be tolerated.” Question: Is this proper argument? Answer: No. The first part of the argument improperly appeals to the jurors’ passions and emotions instead of to their reason. The second part is improper because the message that a verdict sends is irrelevant.

41. Who argues first? Most judges allow the prosecution to argue first, again on the theory that the prosecution carries the burden of proof. In fact, many judges also allow the prosecution a rebuttal argument following the defendant’s argument. Judges who allow a prosecutor only one argument often allow the prosecutor to choose whether to argue first or second.

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Section XII: Instructing the Jury This section discusses how the jury learns the legal principles it will need to render its verdict, and where these principles come from.

42. How do jurors find out about the rules that they are to apply? Judges instruct jurors as to the legal principles that apply to a defendant’s case. Typically, the judge’s instructions are the last words the jurors hear before they begin deliberating. However, some judges prefer to instruct jurors before closing arguments.

43. Where do jury instructions come from? Prosecutors and defense attorneys submit proposed instructions to judges, who decide which instructions to give. In many cases, the instructions are routine and drawn from books of approved jury instructions. For example, Federal Jury Practice and Instructions, by Kevin F. O’Malley, et. al., is widely used in federal court trials. The instructions themselves often are the products of committees formed for the purpose of updating a jurisdiction’s jury instructions. Other times, instructions originate in appellate court opinions. In their written opinions, appellate court justices often define crimes or other legal principles (such as the meaning of reasonable doubt). These definitions find their way into jury instruction books, and trial judges in turn read the pertinent principles to juries.

Prosecutors and defense attorneys are not limited to proposing the instructions found in jury instruction books. They may formulate their own instructions because of shortcomings of preapproved instructions. For example, an attorney may have to develop a new instruction when a case raises a legal issue for which no preapproved instruction exists. Or, an attorney may propose an alternative to a preapproved instruction. For example, in a particular appellate court jurisdiction, Cases A, B, and C (decided by different justices at different times) may each provide a somewhat different definition of reasonable doubt. A book of preapproved instructions may include only the definition in Case A. However, if a defense attorney considers the definitions in Case B or C to be more favorable to the defendant, the defense attorney may ask the judge to replace the book’s preapproved definition with the more favorable one. Case Example: Bea Leaver is on jury trial for violating a newly-enacted consumer protection law. Bea is the first person to be prosecuted under the new law. It is unclear from the text of the law itself whether the prosecution has to prove that Bea intended to violate the law, and the local book of preapproved instructions does not cover this new law. Question: How will the jury instructions for this case be created? Answer: With no preapproved instructions available, the defense and prosecution attorneys will prepare their own proposed instructions for the judge to give. In this case the defense would most likely propose

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an instruction telling the jurors that the prosecutor has to prove intent, while the prosecution will propose an instruction stating that intent isn’t necessary. The judge will instruct the jury with the instruction that he or she believes is a correct interpretation of the new law.

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correct instruction as a reason to reverse the conviction. It doesn’t matter that the jury might have convicted Bea even if the trial judge had given the correct instruction.

45. What do jury instructions ­typically cover? 44. Does it really matter whether the defense can convince a judge to give its desired instruction? It can be hard for jurors to pay attention while a judge recites a lengthy list of complex jury instructions. However, appellate court justices often take the instructions quite seriously if and when they are asked to review a conviction. Defense attorneys trying to convince appellate courts to overturn guilty verdicts often have their greatest success when they can point to errors in jury instructions, including the wrongful refusal of the judge to give a jury instruction that the defense had proposed. Case Example: Same case. Believing that the new consumer protection law does not require proof of Bea’s intent to violate the law, the judge refuses to give the defense’s proposed instruction to the jury. Bea is convicted, and appeals. The appellate court disagrees with the trial judge, and concludes that the law does require proof of intent to violate. Question: How might the trial judge’s decision not to give the defense’s proposed instruction affect the outcome of the appeal? Answer: The appellate court is likely to fasten on the trial judge’s failure to give the

Jury instructions encompass a variety of legal principles. The principles that judges typically review when instructing a jury include: • the elements of the crime(s) with which the defendant is charged (for instance, the elements of burglary); • the definition of reasonable doubt, the requirement of a unanimous verdict (in most jurisdictions), and other legal principles that apply to all criminal cases; • factors the jurors may consider when evaluating the credibility of witnesses; and • housekeeping rules, such as how to select a foreperson and how the jurors should conduct their deliberations. Even in a short trial, the judge may take up to an hour to read all the necessary instructions to the jurors.

46. When instructing the jury, is it common for a judge to tell the jury what verdict the judge favors? No. That is a frequent feature of English trials, but American judges rarely if ever express personal views as to what result they think juries ought to reach.

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47. Can jurors look at the instructions while they deliberate? Traditionally, judges read instructions aloud to jurors. If a juror wants an instruction repeated, the jurors have to file back into the courtroom and ask the judge to reread it. Many judges now try to simplify the jury’s task by handing out written copies of the instructions.

48. What can the defense do to help jurors understand the instructions critical to the defense? Studies have repeatedly shown that jurors have great difficulty understanding the meaning of jury instructions. Some states have tried to rewrite their instructions in plain English, but abstract legal terms like reasonable doubt cannot be precisely defined. When a defense rests on the jury’s understanding of a legal principle, the defense can: • Stress the meaning of the principle in everyday language during closing argument; and • Draft a version of the principle that the defendant thinks the jury can understand, submit the draft to the judge, and ask the judge to include it with the other jury instructions. Obviously, the draft must be legally accurate as well as understandable.

Section XIII: Jury Deliberations and Verdict This section is about how the jury conducts its deliberations and reaches a verdict.

49. Can jurors discuss the case ­before the judge sends them off to deliberate? No. Judges do not want jurors jumping to conclusions based on partial information. Thus, whenever a break occurs in a trial (for a recess, lunch, or the end of the day), judges admonish jurors “not to discuss the case among yourselves or with anyone else.” Jurors who fail to obey the admonition may be removed from the jury, and may even cause a mistrial. Case Example: Sneezy and Doc are jurors in a felony trial. On the second day of trial, they decide to eat lunch together. During the lunch, Sneezy remarks, “I didn’t think much of the witness who said she saw the defendant from across the street. She seemed pretty unsure of her testimony.” Doc responds, “Well, remember, this was the only time she’s ever been in a courtroom. Maybe she was just nervous.” They discuss the witness’s testimony for a minute or so, but come to no conclusions. Another juror sitting at a nearby table overhears the conversation. After lunch, the third juror reports Sneezy and Doc’s conversation to the judge. Question: What action should the judge take? Answer: The judge should talk to Sneezy and Doc in chambers to find out firsthand what they said about the case. The judge should then privately meet with the

Chapter 21: The Trial Process

prosecution and defense to discuss what happened. Depending on the seriousness of the violation and the thoughts of the parties, the judge may (1) allow Sneezy and Doc to remain as jurors after giving them and the other jurors a sterner admonition against talking about the case; (2) remove Sneezy and Doc from the jury and replace them with alternates, or (if the attorneys agree) continue with a smaller jury; or (3) declare a mistrial.

Sequestering Jurors Judges may take the extraordinary step of sequestering jurors when trials are subjected to intense TV and newspaper coverage. A famous example of this occurred in 1995’s internationally-covered O.J. Simpson murder trial. Sequestered jurors can remain together throughout an entire trial or, more commonly, only during the time they are deliberating on a verdict. Sequestered jurors eat meals together and stay in the same hotel, and bailiffs closely monitor what they read and watch on TV. The purpose of sequestration is to protect jurors from the opinions of reporters and to prevent jurors from hearing about information that is never entered into evidence. However, sequestration can seriously interfere with other aspects of a trial. For example, it’s hard to imagine that jurors who are together constantly for weeks—or even nine months, as in the O.J. Simpson case—follow the admonition not to discuss the case before official deliberations begin. In addition, sequestration affects jury composition, since only people who can be separated from their daily lives for a long period of time can serve as jurors.

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50. Besides premature case discussion, what other activities constitute juror misconduct during trial? Jurors have committed a variety of no-nos over the years. These include: • falling asleep during testimony; • coming into court under the influence of drugs or alcohol—particularly after a lunch recess (in one notorious case, jurors were engaging in drug transactions during testimony!); • lying about their backgrounds during voir dire in order to get a spot on the jury; • conducting independent investigations, such as personally visiting the scene of the crime; • discussing the case with the prosecutor or defense attorney; and • listening to a friend carry on about the need to convict the defendant to protect society. Judges and attorneys sometimes find out about such misdeeds either by observing them personally in the courtroom, or from reports from other jurors or third parties. Again, depending on the severity of the conduct, the judge may admonish a wayward juror to shape up, replace the juror with an alternate, continue with a smaller jury, or declare a mistrial.

51. Do jurors stay together until they reach a verdict? No. In extraordinary cases with great publicity, jurors may be sequestered (required to remain together night and day). Otherwise, jurors deliberate during a normal

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workday and go home in the evening. However, jurors normally do eat lunch together while they deliberate.

52. How long do jurors have to reach a verdict? Jury deliberations are not subject to fixed time limits. A judge will order jurors to continue deliberating so long as they are making progress towards a verdict. Meanwhile, the judge will continue to hear other cases. When all of the jurors have agreed on a verdict (in those jurisdictions requiring unanimous verdicts), the foreperson tells the bailiff, the lawyers, and defendant return to the courtroom and the verdict is announced.

Case Example 1: Rosetta Stone is on trial for drunk driving. After the jury begins to deliberate, the foreperson announces that one of the 12 jurors has been taken ill and cannot continue. The judge orders the remaining 11 jurors to continue deliberating. Question: Is the judge’s action proper? Answer: No. Stone is entitled to a 12person jury, and a judge cannot force her to accept an 11-person jury. Thus, Stone could force the judge to declare a mistrial. In the alternative, Stone could agree to waive the 12-person requirement and continue with the remaining jurors. Stone might choose this option if she is in custody or if she thinks her chances of winning are good.

Case Example 2: Assume that Rosetta

53. What happens if the jurors cannot agree on a verdict? When a foreperson reports that jurors are unable to agree on a verdict (that is, unanimous for guilty or not guilty), a judge is likely to encourage jurors to keep trying. Judges try to achieve verdicts whenever possible, so as to avoid the time and expense of a retrial. But if encouragement fails and a jury is hopelessly deadlocked (called a hung jury), the judge has to dismiss the jurors and declare a mistrial. The prosecution can drop the case, or retry the defendant before another jury. Most of the time, however, cases are settled through plea bargains after mistrials caused by deadlocked juries.

Stone’s drunk driving case is being tried to Judge Schnell sitting without a jury. As soon as the attorneys finish their arguments, Judge Schnell pronounces Stone guilty. Question: Can the judge legally arrive at a verdict this quickly? Answer: Yes. Judges sometimes take cases under submission, which means they’ll delay making a decision. But as Judge Schnell did, judges often render immediate decisions.

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Good Citizenship Rules for Jurors The jury trial system relies on citizens’ willingness to serve as jurors and apply legal rules in a rational and responsible manner. A prosecutor does not secure justice when a defendant is wrongfully convicted by a jury that overlooks reasonable doubt, nor is justice promoted by jurors who acquit a guilty person because they don’t like the victim. Citizens who serve on juries should keep these principles in mind: • Potential jurors should honestly answer attorneys’ voir dire questions. Both sides are entitled to an impartial jury, and justice is not served by jurors who try to hide their backgrounds and predispositions. • Jurors act as minidemocracies when they deliberate. The foreperson should give all jurors a chance to speak, and jurors should consider each others’ views before making up their minds. • Jurors may take notes as they listen to testimony. • Jurors should not conduct independent research. For example, if there’s a dispute as to what is visible from a street corner, jurors should not drive to the corner to see for themselves. In one scene in the famous film “Twelve Angry Men,” juror

54. Can I do anything if a jury makes a mistake and convicts me? Yes. The defense can make a number of motions after a guilty verdict, for example, requesting that the judge overturn the jury’s

Henry Fonda disproves the prosecutor’s claim that a knife found in a defendant’s possession is unusual by easily purchasing a duplicate knife. Fonda’s act was improper, and in a real case probably would have resulted in a mistrial (if discovered). • Jurors should not conduct experiments while deliberating, because the results of those experiments are likely to be misleading. In one actual case, a crucial question was how long bite marks on a person’s skin would remain visible. To test this out for themselves, one juror bit another on the arm and waited for the marks to fade. The court ruled that the experiment was improper; differences in skin types and bite pressure made any results misleading. • Jurors may evaluate testimony in the light of their own common sense and experience. For instance, if a store security guard standing 75 feet away claims that the person who picked up an item of merchandise was the defendant, the jurors may consider their own abilities to see at that distance. (But remember, they can’t conduct an experiment in the jury room!)

(or the judge’s own) decision or grant a new trial. (These motions are discussed in Chapter 19.) The defendant can also appeal. (See Chapter 23.)

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Sample Subpoena Duces Tecum (Criminal or Juvenile)

Chapter 22

Sentencing: How the Court Punishes Convicted Defendants Section I: Overview of Sentencing………………………………………………………………………..456 1. If I’m convicted after a jury trial, who decides what punishment I’ll receive?………456 2. How can I find out the prescribed punishment for the crime with which I’m charged?…………………………………………………………………………….456 3. Are there any limits on the severity of punishment for the commission of a crime?…..457 4. My attorney and the prosecutor made a deal in which I would plead guilty in exchange for a certain sentence. After I plead guilty, can the judge disregard the deal and give me a different sentence?…………………………………………………….457 5. Do judges have to give “mandatory sentences” so that everyone convicted of the same crime receives the same punishment?……………………………………………..458 6. In addition to a fine and/or incarceration, are there other future consequences to a conviction?………………………………………………………………………………………..458 7. How do three strikes laws work?………………………………………………………………….459 8. I have several previous convictions on my record that happened before three strikes was enacted into law in my state. Is there anything I can do to get rid of those prior convictions?………………………………………………………………………….459 9. What factors might incline a judge to give me a lighter sentence?……………………..460 10. What factors might incline a judge to give me a harsher sentence?……………………461 11. Apart from the evidence that may come out if my case goes to trial, how else would a judge find out about the mitigating and aggravating factors in my case?……..462 Section II: Sentencing Procedures………………………………………………………………………….463 12. If I’m convicted, will I be sentenced at once?…………………………………………………463 13. If I’m sentenced to do jail time, will I have to go right away or will I have some time to make arrangements?……………………………………………………………….463 14. What is likely to happen during my sentencing hearing?………………………………….463 15. What is a presentence report, and what role does it play in the sentencing?……….464 16. How can I improve my presentence report?…………………………………………………..464 17. What types of questions will the probation officer ask me when preparing the presentence report?………………………………………………………………………………465

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18. How can I make a favorable impression on a probation officer?……………………….465 19. Will I be able to read the report, and if so, when?…………………………………………..466 20. What can the defense do to assure the fairest possible presentence report?…………466 21. Will I get a chance to talk directly to the judge at the sentencing hearing?………….467 22. What role does the victim play in sentencing?……………………………………………….469 Section III: Sentence Options……………………………………………………………………………….469 23. What are some of the reasons why judges order convicted defendants locked up?……………………………………………………………………………………………….469 24. What is the difference between jail and prison?……………………………………………..470 25. If the judge orders me incarcerated as part of my sentence, will I know exactly how long I’ll be locked up?………………………………………………………………471 26. If I am convicted of two or more separate crimes, what is the effect of the sentences running “concurrently” or “consecutively”?…………………………………….471 27. Is it true that I may be released before the end of my jail term because the jail is overcrowded?…………………………………………………………………………………..472 28. My lawyer said I might get “time served.” What is time served?………………………..473 29. Time served sounds great—get out of jail right away. Why would anyone refuse?……473 30. What is a “suspended” sentence?…………………………………………………………………473 31. Can I be fined for committing a crime?…………………………………………………………474 32. What is a “day fine”?…………………………………………………………………………………474 33. Is “restitution” a fancy word for fine?……………………………………………………………474 34. I heard about a case in which the police confiscated a defendant’s car and boat. Is that a type of fine?………………………………………………………………………………….476 35. How does probation work?…………………………………………………………………………476 36. If I get probation, does that mean I won’t go to jail?………………………………………..476 37. What factors will the judge consider when deciding whether to give me probation?…………………………………………………………………………………………..477 38. What type of supervision does the probation officer provide?…………………………..477 39. If my probation conditions are too difficult to live with, is there a way I can get them changed?…………………………………………………………………………………….477 40. If I violate a condition of my probation, what’s likely to happen to me?……………..477 41. Do I get a hearing before my probation is revoked?………………………………………..478 42. What happens at a probation revocation hearing?………………………………………….478 43. Is it possible to plea bargain a probation revocation charge?…………………………….478 44. Can the judge make me work as part of my sentence?…………………………………….478 45. What kind of work does community service usually involve?…………………………..479

Chapter 22: Sentencing

46. Are there any other kinds of sentences I might get?…………………………………………479 47. I’ve heard that some states have drug courts to handle certain types of drug cases. What are they, and how do they work?………………………………………..481 48. What is parole, and how does it work?…………………………………………………………481 49. How is a pardon different from probation and parole?…………………………………….481 Section IV: The Death Penalty………………………………………………………………………………481 50. What is the current status of the death penalty in the United States?………………….481 51. What factors determine whether a death penalty law is valid under the U.S. Constitution?…………………………………………………………………………………………….482 52. What are “special circumstances”?………………………………………………………………483 53. Do prosecutors use special procedures when deciding whether to seek the death penalty?……………………………………………………………………………………..484 54. What are the issues in the death penalty debate?……………………………………………485 References ……………………………………………………………………………………………………….487

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entences are the punishments that result from guilty or no contest pleas, or from guilty verdicts following trials. A judge’s sentencing options used to be quite limited—a defendant could be incarcerated (put in jail or prison) or ordered to pay a fine, or both. But in recent years, courts and legislatures faced with rapidly growing jail populations have gotten as creative with sentences as stockbrokers have with investments. This chapter examines sentencing policies and procedures.

Section I: Overview of ­Sentencing This section explains in general terms how the courts determine the punishment a defendant is to receive upon conviction of a crime.

1. If I’m convicted after a jury trial, who decides what punishment I’ll receive? Judges almost always determine punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant’s guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot hand down the death penalty in a jury trial unless the jury recommends death rather than life in prison. Case Example: Cunningham is convicted of child molestation following a jury

trial. After dismissing the jury and conducting a post-trial sentencing hearing, the judge decides to increase Cunningham’s sentence because the victim was particularly vulnerable and Cunningham carried out the molestation in a violent manner. Question: Is Cunningham’s sentence proper? Answer: No. The judge could have increased Cunningham’s sentence only if the jury had decided that the victim was particularly vulnerable and Cunningham carried out the molestation in a violent manner (Cunningham v. California, U.S. Sup. Ct. 2007).

2. How can I find out the prescribed punishment for the crime with which I’m charged? Typically, the law a defendant is charged with violating also identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, “For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both.” Another statute might describe particular behavior as a misdemeanor without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor or, in some states, for all misdemeanors. (See Chapter 27 for how to research criminal statutes.)

Chapter 22: Sentencing

3. Are there any limits on the severity of punishment for the commission of a crime? Yes. The Eighth Amendment to the U.S. Constitution provides that punishment may not be cruel and unusual. For example, a law that said that all convicted robbers would have their left hands cut off would no doubt violate the Eighth Amendment.

Bad Prison Conditions Rarely Qualify as Cruel and Unusual In a 1994 decision, the Supreme Court made it very tough for prisoners to challenge substandard prison conditions as “cruel and unusual.” Farmer v. Brennan requires that, to prevail in a lawsuit based on a “cruel and unusual” claim, a prisoner must prove that: 1) prison officials actually knew about the conditions being challenged, and 2) despite the substantial risk to inmates caused by the conditions, the officials did nothing about them. More on prisoners’ rights in Chapter 26.

4. My attorney and the prosecutor made a deal in which I would plead guilty in exchange for a certain ­sentence. After I plead guilty, can the judge disregard the deal and give me a different sentence? In many cases yes, though judges almost always rubber-stamp plea deals. To make sure that a deal to plead guilty can be canceled if the judge refuses to go along with it, the defendant should make it clear that she will plead guilty only if the

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sentencing judge agrees to impose the agreed-upon sentence. (More on plea bargaining in Chapter 20.) Case Example 1: Mickey Finn is charged with drunk driving. Mickey agrees to plead guilty after the prosecutor promises to recommend that the judge not impose any jail time. The prosecutor also says, “I can’t promise that Judge Seagram will follow my recommendation; the judge almost always gives first-timers like you 48 hours in jail.” After Mickey pleads guilty, Judge Seagram in fact sentences Mickey to 48 hours in jail. Question: Can Mickey withdraw the guilty plea? Answer: No. The deal was not contingent on the judge following the prosecutor’s sentence recommendation. Mickey will have to serve the sentence.

Case Example 2: Same case. Again, the prosecutor says, “I can’t make any promises that Judge Seagram will go along with the deal.” Mickey’s attorney then says, “We’ll plead guilty only if the judge agrees to no jail time. Let’s get an indicated sentence from Judge Seagram.” Judge Seagram informs the prosecutor and defense attorney that if Mickey pleads guilty, the sentence will be two days in jail. Question: Does Mickey have to serve two days in jail? Answer: No. Mickey never entered a guilty plea, and Mickey’s attorney had the right to cancel the deal if the judge refuses to go along with it. Of course, Mickey could end up with an even longer jail sentence if he takes the case to trial and is convicted.

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5. Do judges have to give “mandatory sentences” so that everyone ­convicted of the same crime ­receives the same punishment? Some criminal statutes do include mandatory sentences, which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws usually reflect what the legislature sees as public sentiment that judges have been too lenient, and a desire to treat all people who break the same law alike. More commonly, criminal statutes do not carry mandatory sentences, and instead carry a range of possible imprisonment and fines within which the judge can fix the punishment. In these cases, judges can take a number of factors into account when deciding on an appropriate sentence. For instance, judges may consider the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant expresses genuine remorse. In short, mandatory sentence laws fit the punishment to the crime, whereas judges prefer to fit the punishment to the offender.

Understanding Statutory Sentencing Provisions Criminal statutes must be carefully studied to understand whether or not they specify mandatory sentences. For example, a statute may say that an offense is punishable “by not more than six months in the county jail.” This language is nonmandatory. A judge could sentence an offender to three months, three weeks, three days, or no time at all. On the other hand, a statute might say that an offense is punishable “by no less than 15 years in the state penitentiary.” A judge would then have to sentence an offender to at least 15 years. Many criminal laws provide for a range of punishment, such as “not less than one year nor more than three years,” and leave it to the judge to decide the precise sentence.

6. In addition to a fine and/or ­incarceration, are there other future consequences to a conviction? Often, yes. For example, in most states a convicted felon may not vote or hold public office, may lose a professional or business license, and may have great difficulty in obtaining future employment. Even someone convicted of a misdemeanor may be screened carefully and questioned extensively when applying for certain jobs. Perhaps one of the most serious consequences of having a criminal record is that a defendant will likely be punished much more severely if he is convicted of a future crime. Both prosecutors (conducting plea negotiations) and judges (handing down sentences following guilty verdicts) usually

Chapter 22: Sentencing

consider a defendant’s rap sheet (criminal record) to be a key factor influencing the severity of a sentence. Judges almost always give repeat offenders stiffer sentences than first-timers, sometimes because mandatory sentencing laws require them to do so and other times because the judge believes that the defendant didn’t learn his lesson the first time around.

Even Acquittals May Have Later Effects In 1997, the U.S. Supreme Court held that judges can take into account the defendant’s prior crimes during sentencing, even if the defendant has been tried and found not guilty of the prior crimes. The acquittal only means the defendant was not guilty beyond a reasonable doubt; the judge may still believe that a preponderance of the evidence shows the defendant committed the crime (U.S. v. Watts, 1997).

7. How do three strikes laws work? Three strikes laws impose lengthy sentences on repeat offenders. These laws allow judges to impose lengthy sentences on offenders who have at least two prior convictions for “serious” crimes. In the many states that have three strikes laws, a conviction for a third offense would allow (and sometimes require) a judge to impose a lengthy sentence. The most controversial aspect of three strikes laws is their use to punish offenders whose third conviction is for a nonviolent crime. In one case, an offender with two

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strikes already on his record was convicted of stealing about $150 worth of videotapes. Ordinarily, punishment for such a crime might be at most a few months in jail. However, under California’s three strikes law, the offender was deemed a “career criminal” and sentenced to 25 years to life. The U.S. Supreme Court upheld the validity of the sentence (Lockyer v. Andrade, U.S. Sup. Ct. 2003). Groups in many states are trying to change three strikes laws so that they can be used only on offenders whose third conviction is for a crime of violence.

8. I have several previous convictions on my record that happened before three strikes was enacted into law in my state. Is there anything I can do to get rid of those prior convictions? Perhaps. Given the crucial impact of prior convictions on sentences, it’s not surprising that pruning clients’ past convictions is often the most important impact a defense attorney can have on the severity of a sentence. For example, attorneys might attempt to: • seal or expunge juvenile convictions; • void prior convictions, perhaps because a guilty plea was taken improperly; or • demonstrate that a conviction that appears as a felony on a client’s record was only a misdemeanor. Readers who want more information on pruning past convictions might refer to various attorney’s criminal practice guides. (See Chapter 27.)

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Sealing Arrest and Conviction Records (“Expungement”) When records of an arrest or conviction are sealed, or expunged, defendants can, for some purposes, treat the arrests or convictions as though they had never happened. For example, assume that a defendant’s conviction for misdemeanor possession of an illegal drug is expunged. On applications for school, a job, or a professional license, the defendant may be able to answer that the defendant has no arrests or convictions (assuming no others exist). However, the rules about who is eligible for expungement and the effect of expungement vary from state to state, and people interested in expungement should seek the advice of an experienced attorney. These general guidelines apply to many expungement programs:

• Even though a conviction has been expunged, it can still be used to increase the severity of a sentence should a defendant again be convicted. For example, an expunged conviction may subject a defendant to a three strikes sentencing law.

• People have to apply (in writing) for expungement. Arrest and conviction records are not automatically expunged or sealed after a period of years.

• A defendant acquitted of a criminal charge may be able to have the records of the arrest and charge sealed immediately. (See, for example, Cal. Penal Code § 851.85; N.Y. Crim. Proc. Law § 160.50.)

9. What factors might incline a judge to give me a lighter sentence? The defense may bring to a judge’s attention an infinite number of factual circumstances that, if presented persuasively and if the judge has discretion and is favorably disposed, may well move the judge to impose a lighter sentence. The following are examples of such factors (called “mitigating” factors):

• Convictions cannot be expunged until about a year after they occur, and then only if the defendant is done serving the sentence and is facing no new charges. • Not all convictions are eligible for expungement. For example, in many states defendants cannot expunge felony convictions or convictions involving sex offenses. Juvenile and misdemeanor convictions are most often subject to expungement.

• The offender has little or no history of criminal conduct; • The offender was an accessory (helped the main offender) to the crime but was not the main actor; • The offender committed the crime when under great personal stress, for example, had lost a job, rent was due, and had just been in a car wreck; or • No one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

Chapter 22: Sentencing

10. What factors might incline a judge to give me a harsher ­sentence? Just as mitigating circumstances can sway a judge to lessen a sentence, “aggravating” circumstances can persuade a judge to throw the book at an offender. A previous record of the same type of offense is the most common aggravating factor. In other cases, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. However, except for prior convictions, in jury trials judges cannot base harsher sentences on aggravating factors unless the jury has decided that those factors are accurate (Cunningham v. California, U.S. Sup. Ct. 2007). Sometimes laws themselves specify aggravating factors. Here are some examples: • Use of a dangerous weapon when assaulting, intimidating, or interfering with a federal employee carrying out official duties increases the punishment from eight years to 20 years (18 U.S.C. § 111). • Committing mail fraud against a financial institution as opposed to an individual or some other type of institution can add $1,000,000 and/or ten years to the punishment (18 U.S.C. § 1341).

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Case Example: Tommy Rotten robbed several teachers from the Kind ‘R Garden Nursery School by pointing a loaded gun at the children and demanding the teachers hand over their purses. Bob Bracci, brandishing a silver nail file, robbed a convenience store clerk at 4:00 A.M.; no customers were present. Question: Assume Rotten and Bracci are in the same jurisdiction; both took the same amount of money and both were convicted of robbery. Will they get the same sentence? Answer: Probably not. The judge would likely take aggravating and mitigating factors into account, and these differ greatly in the two cases. Rotten used a clearly dangerous weapon, a loaded gun, and by doing so put many people, including children, at risk. Bracci used a makeshift weapon, a nail file, not an inherently dangerous weapon. He robbed the store in the middle of the night when not many customers, certainly not children, would likely be present. Because of these factors, Rotten would almost certainly get a much harsher sentence than Bracci.

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Throwing the Booker at Federal Sentences The U.S. Congress passed The Sentencing Reform Act of 1984 in response to concerns that federal judges’ sentences tended to be too lenient and too variable from one locale to another. The law created a Sentencing Commission that produced a Guidelines Manual that specifies sentences for almost all federal crimes. The Manual uses a “points system” that “awards” points according to type of offense, how it was committed, and an offender’s background. An offender who grades out at only one point can be sentenced to no more than six months in jail, while an offender who grades out at the maximum 43 points receives a life sentence. Congress intended the Guidelines Manual to be mandatory. However, many judges, defense attorneys, and even prosecutors complained that in practice they were often too harsh and too rigid. In the case of U.S. v. Booker (2005), the U.S. Supreme Court addressed many of these concerns by imposing two major limits on the Guidelines Manual’s reach: The sentences specified in the Guidelines Manual are advisory, not mandatory. That is, federal judges may consult the Manual but

11. Apart from the evidence that may come out if my case goes to trial, how else would a judge find out about the mitigating and aggravating factors in my case? Especially when jail time is a possibility, judges often ask that a probation officer prepare a presentence report. (See Question 15 for more on presentence reports.) Both the prosecution and defense may also present witnesses in open court, the defendant may personally address the judge, and,

they are not bound to impose the sentences it provides for. Federal courts are in disagreement about whether a federal law that provides for lighter punishment for some minor drug offenses is mandatory. For a decision ruling that this law is mandatory, see United States v. Cardenas-Juarez (9th Cir. 2006). A judge cannot “enhance” a sentence unless an offender has either admitted to the facts giving rise to the enhancement or a jury has concluded that those facts are true. For example, a judge may consider increasing a sentence because an offender injured someone in the course of committing the crime. In order to stiffen the sentence for this reason, the offender either has to admit that the injury occurred, or, in response to evidence at trial, the jury would have to conclude that the offender caused an injury. In 2006, a report issued by the U.S. Sentencing Commission concluded that despite the Booker decision, most judges hand down sentences that conform to the Guidelines Manual. Moreover, the average length of sentences has increased slightly since the decision.

increasingly, crime victims may also make statements. (See Questions 21 and 22 for more on statements by defendants and victims.)

FAMM is a national group that advocates on behalf of prisoners in the sentencing process. For information, consult FAMM’s website at www.famm.org.

Chapter 22: Sentencing

Section II: Sentencing ­Procedures This section is about when and how sentences are imposed, and the procedures judges must follow when doing so.

12. If I’m convicted, will I be ­sentenced at once? In minor misdemeanor cases, judges frequently hand down sentences immediately after the defendant pleads guilty or no contest, or is found guilty after a jury or judge trial. Where the possibility of significant incarceration exists, however, the judge may not impose sentence until some days or weeks later, in a separately-scheduled sentencing hearing. The sentencing hearing often follows an investigation by a probation officer, who prepares a presentence report for the judge to review. (See Question 15 for more on probation reports.)

13. If I’m sentenced to do jail time, will I have to go right away or will I have some time to make arrangements? Defendants who are out on bail when they are sentenced to jail are sometimes hauled off immediately. Other times, the judge may agree to “stay” (delay) the time the defendant must start serving the sentence for at least a few days—to allow the defendant to settle her personal affairs. Defense attorneys will usually be well acquainted with the stay policies of local judges.

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14. What is likely to happen during my sentencing hearing? The sentencing portion of a criminal case often takes only moments—especially where the judge is rubber-stamping the sentence agreed to in plea negotiations. For example, the judge may sentence a defendant to “a fine of $250, ten days in jail suspended, one year probation” while the echoes of the defendant’s guilty plea still reverberate in the courtroom. Even felony cases can wrap up quickly when sentences are negotiated as part of a plea bargain. For example, in a recent felony drug possession case involving California’s three strikes law, a defendant who pleaded guilty was sentenced to seven years in prison in a hearing that lasted six minutes. As mentioned, sentencing is not always so brief an affair, especially when the judge has legal authority to order a long period of imprisonment. Typically, a presentence report will have been prepared by the probation department, and the defense and prosecution will spend a fair amount of time arguing against or in favor of the probation officer’s recommendations and the factual findings on which the recommendations are based. (See Question 15 for more on the presentence report.) The judge also must allow the defendant an opportunity to make a personal statement (called the defendant’s “allocution”) before pronouncing sentence. (See Question 21.) And the defendant can call witnesses to testify to the defendant’s good character and rehabilitative efforts. Victims also may make personal presentencing statements to the judge. (See Question 22.)

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Self-represented defendants should get advice from an attorney to explore what mitigating evidence (evidence that may help reduce their sentence) they should consider offering during the sentencing hearing.

15. What is a presentence report, and what role does it play in the sentencing? Especially in felony and more serious misdemeanor cases, judges typically rely for their sentencing decisions on presentence reports prepared by probation officers. Probation officers usually prepare these reports during a several-week interval between the conviction and the date set for sentencing. To prepare the report, a probation officer (or a social worker or psychologist working for the probation department) first interviews the defendant and checks the defendant’s rap sheet (criminal record). The probation officer typically talks to the victim, the arresting officer, and the defendant’s family and friends. In addition to the information gleaned from these sources, most probation presentence reports also describe: • the circumstances of the offense; • the defendant’s personal history, including the defendant’s criminal record; and • a statement by the victim as to what the victim lost or how the victim suffered, sometimes called a victim impact statement.

Good defense lawyers make sure that the probation officer preparing the report hears about all the good things the defendant has done and is doing. For example, if the defendant has enrolled in a treatment or counseling program or has an employer willing to say nice things about the him, a defense attorney will transmit that information to the probation officer. It’s important that the defense make the presentence report appear as favorable to the defendant as possible, since the report is likely to have a large impact on the judge’s sentencing decision.

16. How can I improve my ­presentence report? Since judges tend not to have time to investigate the circumstances of individual cases, they usually rely heavily on and often rubber-stamp sentencing recommendations in presentence reports. For this reason, it is important for the defendant to make a positive impact on the probation officer preparing the report. The defendant should be as prepared as possible before meeting with the probation officer, because in some cases the defendant is not allowed to bring a lawyer into that interview. Preparation is also critical because probation officers may rely, when making their recommendations, on information that would not have been permissible in court at trial, such as inadmissible hearsay and illegally-obtained evidence. The defendant must be careful about what he or she says in the interview, because probation officers can use the defendant’s statements in their reports.

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A Judge’s View of Presentence Reports The contents of presentence reports and probation officers’ sentence recommendations are often crucial, as judges may have little time to exercise independent judgment. As one judge put it: “Most judges are so burdened with simply getting through the day and ‘disposing’ of the allotted quota of cases that they are usually too weary to undertake the painful examination of the justice, morality, or common sense of the sentences [that] they impose” (Criminals and Victims: A Trial Judge Reflects on Crime and Punishment, by Judge Lois G. Forer (W.W. Norton & Co.)).

17. What types of questions will the probation officer ask me when preparing the presentence report? Probation officers often question defendants very closely. An officer is likely to want to know a defendant’s: • version of the criminal act giving rise to the conviction • reason or motive for committing the crime • prior criminal record, including juvenile record • personal and family history • education • employment history • health • past and present alcohol and drug use • financial status, and • military record (if any).

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The defendant should come to the interview prepared to talk about such topics. Whenever possible, the defendant should bring documents that support her position (for example, a letter from an employer, or military discharge papers). The defendant also should be prepared to explain why she believes that probation or some other lenient sentence is appropriate under the circumstances.

18. How can I make a favorable ­impression on a probation ­officer? What the defendant says and how the defendant behaves in front of the probation officer can be critical. The defendant should meet with his lawyer ahead of time to discuss exactly what he should say to the probation officer. In general, it is important for the defendant to: • Come to the meeting on time, dressed appropriately. Probation officers have busy schedules and deal with lots of defendants who don’t care what happens. Simply showing up on time and being respectful may go a long way in positively influencing the probation officer. • Stress any mitigating factors when relating the facts surrounding the crime in question and when discussing any past criminal involvement. • Stress any rehabilitative activities the defendant has engaged in between the time the crime occurred and sentencing, such as attending a 12-step program, getting a job, enrolling in or going

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back to school, voluntarily performing community service, or obtaining medical or psychological services. • Discuss family ties and, if applicable, job stability. • Show remorse. One thing judges claim to look seriously at in sentencing is the risk of recidivism (repeated criminal behavior). Apparently, many judges believe that defendants who try to rationalize (explain away) the offense are more likely to commit repeat crimes than offenders who admit responsibility and show remorse. It could therefore be of great benefit to the defendant if the probation officer’s report notes that the defendant exhibits genuine remorse.

Showing Genuine Remorse Though many of the regular players in the criminal justice system (judge, prosecutors, defense lawyers, probation officers) are hardened to the stories of criminal defendants, they may still be moved and influenced by a defendant who genuinely expresses remorse and feels bad for the victim hurt by the crime. The opposite is also true. Consider these words written by a probation officer in a 1996 murder case: “To have so violently and completely abused another human being is unthinkable by anyone of conscience …. To show or express no sincere remorse, or acknowledge culpability for his actions, as the defendant has done, discloses the full depth of his malevolent character” (Source: L.A. Times, December 17, 1996, A28).

19. Will I be able to read the report, and if so, when? Defendants and their attorneys usually have access to the presentence report before the sentencing hearing. However, the sentence recommendations and information from any confidential sources may be excluded from the copy given to the defense. The defense should review the report thoroughly for factual mistakes. Procedural rules (such as Federal Rule of Criminal Procedure 32 (i)) typically give the defendant and defense counsel the right to comment on the presentence report at the sentencing hearing and to introduce evidence to rebut any factual mistakes.

20. What can the defense do to assure the fairest possible presentence report? Probation officers are at least as overworked as other players in the criminal justice system. And they are as susceptible to tough-on-crime public opinion as anyone else. Thus, “boilerplate clauses” (prewritten clauses used in case after case) are common. And the probation officer may prepare a report that justifies predetermined decisions rather than weighs the merits of an individual case. Defense lawyers, well aware of the limitations under which many probation officers work, often take a number of steps including the following to try to ensure that a judge is aware of information favorable to the defendant. Defense lawyers can:

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• Research possible alternative sentences—such as placing the defendant in a treatment center or under home detention rather than a prison, or requiring extensive community service and restitution—and prepare a concrete plan to implement the desired (or least offensive yet realistic) sentence; • Improve the defendant’s personal profile by enrolling the defendant in a treatment or rehabilitation program and school, finding an appropriate job, and performing volunteer community service; • Meet with the probation officer before the defendant does to present helpful information; • Prepare a written statement in mitigation of the crime that states why the defendant should receive a lighter rather than a harsher sentence; and • Seek a private presentence report. These are written by private individuals—often retired probation officers—engaged in the business of writing presentence reports for an often hefty fee.

21. Will I get a chance to talk directly to the judge at the sentencing hearing? When deciding what sentence to impose, judges typically consider oral statements made in open court as well as the probation officer’s written presentence report. The people who most commonly speak at a sentencing hearing are the prosecutors,

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the defense attorney, the victims, and the defendant. Rule 32 (i) (4)(A) of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak to the court before a sentence is imposed. As can be expected, the prosecutor’s comments will tend to highlight aggravating factors in the crime and past criminal behavior on the part of the defendant. And defense counsel typically responds with reasons justifying a lighter penalty. Also, if defense counsel has not already pointed out factual mistakes in the presentence report, this would be the last appropriate opportunity to do so.

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Counsel’s Arguments to Reduce Pizza Sentence Here are some snippets from arguments made by the prosecution and defense attorney during the January 1997 sentencing hearing in which a life sentence for stealing a pizza (under California’s three strikes law) was reduced to six years. • The prosecution. The prosecutor told the judge about the defendant’s past criminal record and showed the judge the lengthy rap sheet printout, “which extended from [the D.A.’s] outstretched arm to the floor.” The assistant D.A. argued, “This case is not about stealing a single slice of pizza. It is about recidivism [the problem of repeat offenders] and how society deals with it.” He further argued, “If the foremost purpose of [the justice system] is to protect society, then [the defendant] is a person we need protection from. He is a repeat offender. He has not learned. He has not repented.” And the D.A. went on to say that the defendant did not take the pizza because he was hungry, but, “He took the pizza out of meanness … it was literally taking candy from babies.” • The defense. The defense, on the other hand, argued essentially that the punishment was way too extreme for the crime. The public defender “described [the defendant] as a reformed criminal whose last crime was a dumb but hardly life-threatening offense.” The P.D. told the judge, “No one is going to suggest to the court that [the defendant’s] judgment was not faulty … but [the circumstances of the crime] suggest a lesser sentence.” “Judge Slashes Life Sentence in Pizza Theft Case,” L.A. Times at A1, January 29, 1997.

No one, not even defense counsel, may be able to speak in as persuasive a way as the person facing the sentence. Thus, defendants also have a long-held right to speak on their own behalf before the judge imposes the sentence. This is known as the defendant’s right of allocution. Defendants will likely want to work with their lawyers to prepare what, if anything, they will say to the judge.

What Not to Say in Allocution In 1996, Richard Allen Davis was sentenced to death for the kidnapping, molestation, and murder of a young girl named Polly Klaas. The case had shaken the nation for many reasons, not the least of which was that the victim had been taken from her home in a nice neighborhood during a slumber party with girlfriends. Before being sentenced, Davis spoke on his own behalf. Instead of using the allocution to beg for mercy, show remorse, or at least apologize, legal analysts saw his comments as an obvious attempt to lash out and inflict one last painful blow to the victim’s family. In front of a packed courtroom, Davis said that just before he killed Polly she said something like, “Just don’t do me like my daddy.” The suggestion that Polly’s father had sexually abused his daughter, wholly unfounded by all accounts, threw flames into the courtroom, prompting angry retorts from the father, tears from other family members, and the wrath, rather than any sympathy, of the judge.

Chapter 22: Sentencing

22. What role does the victim play in sentencing? It used to be that the victim played a minimal role in a criminal prosecution. The victim’s only job, if any, was to testify at trial about the circumstances of the offense. Now victims are participating more, from the beginning, where they are involved in prosecutors’ pretrial investigations, to later, when they give statements in court to the judge during sentencing hearings. The victim may tell the judge about the impact the crime has had on the victim’s life, pain suffered, and any other details to show why the defendant should receive a harsh sentence. The victim typically will also meet with the probation officer, who will include a victim impact statement in the presentence report. This statement may include the victim’s version of the offense and may detail any physical, psychological, or monetary damage the victim suffered as a result of the crime. Rules in some jurisdictions provide victims with a right to address judges at sentencing proceedings. In these jurisdictions, judges cannot forbid victims from making statements before sentence is pronounced (Kenna v. District Court, 9th Cir. 2006).

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Preparing Victim Impact Statements With sentences increasingly reflecting the impact of crimes on victims’ lives, a crime victim might seek assistance from a friend or counselor when writing an impact statement. Statements may touch on the physical, emotional, and/or financial effects of crimes. For example, how did a crime change one’s daily life or general lifestyle? How did it affect relationships with family members and friends? What medical and/or psychological treatment has a crime necessitated? Victims might also be eligible for restitution (from the perpetrator) or crime victim assistance funds (from the county or state), and if so might have to fill in a questionnaire. For further information, ask a court clerk or go online to the Office for Victims of Crime, at www.ovc.gov.

Section III: Sentence Options Subsection A: Incarceration This subsection is about when and why certain defendants are ordered to serve time in jail or prison.

23. What are some of the reasons why judges order convicted ­defendants locked up? Competing theories exist as to why some laws require, and why some judges order, convicted criminals to be incarcerated: • Retribution. Some people think that the primary goal of sentencing is retribution,

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that prison time serves to take out society’s vengeance against a defendant. • Rehabilitation. Others argue that the primary purpose of incarceration is rehabilitation—that the sentence will help the defendant mend his criminal ways and encourage him to adopt a lawful lifestyle. Rehabilitation is commendable in theory, but today’s jails and prisons tend not to rehabilitate. Many defendants say that they come out better criminals than they went in, that they learn the tricks of the trade from other prisoners. • Deterrence. Some believe that because prison is so bad, the threat of a prison sentence will deter (stop or prevent) people from committing crimes. Like rehabilitation, deterrence doesn’t seem to be effective, for several reasons. Often, crimes are committed on impulse or under the influence of a drug or alcohol, without thought of the possible consequences. Also, frequently, people who commit crimes have spent major parts of their lives in institutions and do not fear incarceration the way people who have been free all their lives might. And finally, a sizable number of criminal defendants actually seek punishment because of various psychological pathologies. • Punishment and public safety. Increasingly, people in the know admit that prison doesn’t rehabilitate criminals or deter crime. They just lock defendants up for punishment, and to get them off the streets for as long as possible. • Politics. Finally, and unfortunately, an influential group of leaders emphasize

incarceration as a way of getting votes. By building more prisons and locking more people up, politicians can cite statistics that make them look tough on crime— whether or not true crime is actually reduced or the underlying problems causing the crime are ever solved.

Height of Silliness? In May 2006, Nebraska Judge Kristine Cecava created controversy by sentencing convicted sex offender Richard Thompson to ten years probation rather than ten years in prison because she feared that he might not survive in prison because he was only 5' 1" tall. The decision angered victims’ rights advocates and puzzled Nebraska prison officials, who reported that many prisoners were shorter than Thompson and that they had never been harmed. As of the time of writing this edition, the prosecutor planned to appeal the sentence.

24. What is the difference between jail and prison? Jails (sometimes called community correctional centers) are short-term lockups normally run by counties and staffed by county sheriffs. Defendants housed in jails include those awaiting trial and unable to make bail, those serving sentences for misdemeanor offenses, and those felons who have to do jail time as a condition of probation. Because jails are devoted to short-term incarceration, they typically lack many of the facilities and programs that are sometimes available in prisons, such as libraries and exercise areas.

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Prisons (also called penitentiaries and, in slang, “the joint,” “the pen,” “the big house,” or “up the river”) are normally operated by the federal and state governments, and their purpose is long-term incarceration. Most prison inmates serve sentences well in excess of a year.

25. If the judge orders me incarcerated as part of my sentence, will I know exactly how long I’ll be locked up? Some state laws require the judges to impose what are called determinate sentences. A determinate sentence is a fixed-term sentence pronounced by a judge. For example, a defendant sentenced to “30 days in county jail” or “five years in state prison” has received a determinate sentence. Defendants who receive determinate sentences at least know the maximum period of incarceration as soon as they are sentenced, but they may get out earlier because of parole (see Section III), or because they have not been a problem (good time credits), or because the jail or prison is overcrowded and their bed is needed for a new inmate. Other state laws require judges to give indeterminate sentences. Indeterminate sentences are those in which a judge sets a minimum and/or maximum time of incarceration, but leaves the decision as to when to release an inmate to prison officials. For example, a defendant sentenced to “serve not less than two nor more than 20 years in the state penitentiary” has received an indeterminate sentence. As a general rule, indeterminate sentences are only imposed

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on people who are sentenced to state prison after being convicted of a felony.

26. If I am convicted of two or more separate crimes, what is the ­effect of the sentences running ­“concurrently” or “consecutively”? Judges often have discretion to decide whether to give defendants who are convicted of separate crimes concurrent or consecutive sentences. If a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The reason is that when sentences run concurrently, defendants serve all the sentences at the same time. When sentences run consecutively, defendants have to finish serving the sentence for one offense before starting to serve the sentence for any other offense. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences. Case Example 1: Haydn Goseek was convicted of 20 counts of forgery for forging and cashing 20 separate checks. Each count carries a maximum possible prison term of five years. Question: How might the judge’s decision as to whether Haydn’s sentences should run concurrently or consecutively affect how long Haydn stays in prison? Answer: If the judge gives Haydn a maximum sentence on each count and runs the sentences consecutively, Haydn’s total

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sentence would be 100 years in prison. If the judge runs the sentences concurrently, Haydn’s total sentence would be five years in prison because he would serve each sentence at the same time. (And whether he receives consecutive or concurrent sentences, Haydn might be released early on parole.) Question: If Haydn previously had a clean record and forged the checks when he had been temporarily laid off from work, how might this affect the judge’s sentencing decision? Answer: Even if the judge decides that a jail term is warranted, the judge might well sentence Haydn to less than the statutory maximum of five years on each count, and run the sentences concurrently.

Case Example 2: Same case. Haydn’s forgery conviction was in Michigan. At the time of the Michigan conviction, Haydn was already serving a sentence in Indiana for forgeries committed in Indiana. (Indiana turned Haydn over to Michigan temporarily to stand trial.) The Michigan judge is about to sentence Haydn on the Michigan forgeries. Question: How can Haydn’s attorney minimize the length of Haydn’s sentence? Answer: Haydn’s attorney can ask the Michigan court to allow Haydn to serve the Michigan sentence concurrently with the Indiana sentence. That is, every day that Haydn serves in Indiana counts as though it were served in Michigan.

One Sentence for Separate Crimes? Sometimes, a sentencing judge can legally give just a single sentence to a defendant who is convicted of separate crimes. The reason is that a defendant may commit what the law regards as a single unlawful act, yet may be convicted of violating several statutes. For example, assume that a defendant sets a house on fire in an attempt to kill the occupants. The defendant may be convicted both of arson and attempted murder, but could probably be given only a single sentence. Typically, the sentence would be for the more serious crime, which in this instance would probably be attempted murder. Warning: The issue of whether a defendant’s illegal conduct can legally count only as a single unlawful act for sentencing purposes can be quite complex. Judges often have to consider a variety of uncertain factors, such as a defendant’s purpose in committing a crime. A defendant facing conviction of multiple offenses should seek legal advice as to the possibility of receiving separate sentences for each offense.

27. Is it true that I may be released before the end of my jail term because the jail is overcrowded? It’s possible. Overcrowding in jails and prisons has led to early release for many prisoners. For example, one study reported that the average time served on a one-year misdemeanor sentence in Los Angeles had decreased from an average of 200 days to

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an average of 80 days in the mid-1990s. Nevertheless, many defendants can expect to serve lengthier sentences than ever, despite overcrowding, because of the current get-tough attitude prevalent in the public and the law enforcement community.

28. My lawyer said I might get “time served.” What is time served? Time that defendants spend in jail before they are convicted (called pretrial detention) may be credited toward the total time of the sentence. This is called time served. A defendant unable to make bail may spend time in jail before a plea bargain or a trial takes place—sometimes days, sometimes months, and in very rare instances years. It is not unusual in minor first-time offenses for a plea bargain to be struck whereby the defendant’s total punishment is the time served plus probation. (More on plea bargains in Chapter 20.)

29. Time served sounds great—get out of jail right away. Why would anyone refuse? While time served sounds terrific and most offenders jump at the chance to be let out of jail right away, this option is by no means a “get out of jail free” card. There are some serious consequences that a defendant should not take lightly: • The offender will still have a criminal record; time served doesn’t erase the conviction.

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• Time served is almost always given in conjunction with probation and sometimes a fine and/or community service. Probation, as discussed in more detail later in this section (Subsection C), may have onerous conditions attached to it. Defendants who violate even one of the probation conditions may be sent immediately to jail. Because of this, some defendants may wisely choose to avoid the fine or probation conditions and serve the entire jail time outright, especially if the charge is relatively minor and the local jail is routinely releasing defendants early.

30. What is a “suspended” sentence? A sentence is suspended when a judge imposes a jail sentence but allows a defendant not to serve all or part of it. For example, a judge may impose a sentence of a “$750 fine and ten days in county jail, five days suspended.” The catch is that a suspension is conditional on a defendant’s complying with the terms and conditions that a judge specifies. For example, a judge may condition suspension on a defendant’s compliance with the conditions of probation or completing a drug treatment program. If a defendant violates one of the conditions (for example, fails to complete a drug treatment program), a judge can order the defendant to serve the suspended portion of the sentence.

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Mistreatment in Prison Most defendants facing imprisonment for the first time are scared, and much of the time with good reason. Jails and prisons nationwide are overcrowded. Many inmates are subjected to brutal conditions both from guards and from fellow prisoners. One thing a defendant should do is to work closely with a lawyer, from arrest on, to develop an effective sentencing plan and present the best possible case for an alternative (nonprison) sentence to the probation officer and the judge. For more information about prisons and prisoners’ rights, see Chapter 26.

Subsection B: Fines This subsection is about when fines may be imposed as part of a sentence and what happens if the fines aren’t paid.

31. Can I be fined for committing a crime? Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting, traffic violations, and even some first-time drunk driving cases. In more serious offenses or when the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation. In many parts of the country, laws

specify the maximum amount an offender may be fined for a particular offense. The judge is then free to impose a fine up to but not exceeding that amount.

32. What is a “day fine”? Fines have been subject to a great deal of criticism. One frequent complaint is that they impact rich and poor offenders very differently: “The rich pay the fine, the poor do the time.” One recent trend to combat that critique has been the implementation of day fines. With day fines, employed defendants do not have to pay a fine all at once. Instead, they pay a percentage of their earnings on a weekly or monthly basis. The payment amounts vary depending on an offender’s salary.

33. Is “restitution” a fancy word for fine? No. Fines go to the state (or federal or local government prosecuting the crime). Restitution is money paid by the defendant to the victim or to a state restitution fund. In some cases, the “victim” is society, such as in welfare and Medicare fraud schemes in which defendants may be sentenced to pay the state back the money defrauded. More typically, in both state and federal jurisdictions, offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries and medical and psychological treatment costs, or to pay funeral and other costs where a victim dies.

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Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, probation, and/or some other punishment. Sometimes, plea bargains are struck where criminal charges are dropped

More About Restitution In most states, restitution orders are limited to victims’ out-of-pocket economic losses, such as medical expenses and lost pay for missing work. With few exceptions—such as when a child has been sexually assaulted by the defendant—a judge cannot order a defendant to compensate a victim for noneconomic damages such as pain and suffering and emotional distress. Victims who want compensation for noneconomic losses have to sue the defendant in a separate civil action. Courts typically enforce their restitution orders in two ways: 1. If probation is granted, the defendant is required to pay the restitution as a condition of remaining on probation. If the supervising probation officer believes that the defendant is willfully avoiding paying the restitution, he can seek to have the probation revoked and the defendant incarcerated.

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altogether if the defendant admits guilt and completely compensates the victim for stolen property or a vandalized car. This type of arrangement may be called a “civil compromise.” (More on plea bargains in Chapter 20.)

2. The restitution order is considered to be the equivalent of a civil judgment and can be enforced by the victim—by attaching or garnishing a defendant’s assets or wages. However, under this method of enforcing the restitution order, the defendant can’t be put in jail for not paying up. Recognizing that many criminal defendants may never be in a position to pay full restitution, a number of states also have set up restitution funds to help compensate victims who cannot collect from the defendant. For example, following the 1999 shooting at a Granada Hills, California, Jewish day care center, the city attorney’s Victim of Crime Program initiated an outreach effort. The L.A. Times reported that victims who were shot may receive up to $46,000 from a state restitution fund to help pay their medical bills, and victims (and their families) who were present during the incident may be eligible for up to $10,000 for psychological counseling.

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34. I heard about a case in which the police confiscated a defendant’s car and boat. Is that a type of fine? Technically, no. The defendant’s property was probably taken as part of a civil forfeiture proceeding, a separate proceeding from the criminal case in which the government takes property used as part of criminal activities. In 1996, the U.S. Supreme Court held that civil forfeiture is not punishment and therefore forfeiture proceedings do not violate the prohibition against double jeopardy (U.S. v. Ursery, 1996).

Subsection C: Probation This subsection is about probation: What it is, when it is imposed, and what happens if it doesn’t work out.

35. How does probation work? Probation is a figurative leash that the criminal justice system puts on defendants in lieu of incarceration in jail or prison. Offenders who are put on probation (either instead of or in addition to any other punishment they might receive) are typically required to adhere to a number of conditions of probation. Common conditions of probation include: • obey all laws (breaking even petty laws like jaywalking have been known to land a probationer back in jail); • abide by any court orders, such as an order to pay a fine or restitution; • report regularly to the probation officer;

• report any change of employment or address to the probation officer; • abstain from the excessive use of alcohol or the use of any drugs; • refrain from travel outside of the jurisdiction without prior permission of the probation officer; and • avoid certain people and places (for example, an offender convicted of assaulting his ex-wife may have as one condition of probation that he avoid any contact with his ex-wife or her family). Probation officers also can check in on a probationer—at home or at work, announced or unannounced. Some probationers such as those convicted on drug charges are also subject to random searches and drug tests. Most courts have concluded that probationers do not have the same Fourth Amendment rights to be free from unreasonable searches and seizures as other people. (More on search and seizure in Chapter 2.)

36. If I get probation, does that mean I won’t go to jail? Not necessarily. A sentence may be straight probation with no other punishment, or it may be probation following some time in jail. Most commonly, the judge sentences the defendant to a certain period of time in jail, but suspends (puts on hold) the jail time and lets the defendant serve the remaining portion of the sentence on probation. If the defendant violates any of the probation conditions, however, the judge can lift the suspension and put the original sentence back in place.

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37. What factors will the judge ­consider when deciding whether to give me probation? When deciding whether to give the defendant probation, the judge will look at the defendant’s criminal record and the seriousness of the crime. The judge will also consider: • whether the crime was violent; • whether the defendant is a danger to society; • whether the defendant made or is willing to make restitution to the victim; and • whether the victim was partially at fault.

38. What type of supervision does the probation officer provide? Reporting to a probation officer can mean a number of things. The offender may be required to go to the probation office once a week, monthly, or even less frequently. In some busy metropolitan areas it may only mean mailing the probation officer a postcard once per month. As stated above, probation officers may also search probationers, may show up at their homes or workplaces, and may require probationers to submit to drug tests.

39. If my probation conditions are too difficult to live with, is there a way I can get them changed? If a defendant can show good cause why a judge should change the original probation order, the judge may grant the request and modify the terms of probation.

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Case Example: Greta Charles was sentenced to 48 hours in jail, a large fine, community service, and probation on a second drunk driving offense. One condition of probation was that she not drive for one year. Six months later, Greta got a job that required her to drive. With her lawyer, she contacted the probation officer, who agreed that she had complied with all of the probation conditions for the first six months. The P.O. (probation officer) told them he would not oppose their request to the judge to lift the ban on driving for the remainder of the probation term. Question: Will the judge let Greta drive? Answer: Probably. Although the judge has authority to deny such requests, most judges tend to follow the probation officer’s recommendations. In this case, the judge is likely to grant the request because Greta: • served the jail term; • abided by her probation; • paid her fine and performed her community service; and • made the request so that she could be gainfully employed (Greta had proof in the form of documentation from the new employer).

40. If I violate a condition of my ­probation, what’s likely to happen to me? Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked (taken away) and all or part of the original suspended jail or prison sentence reimposed. Since one typical condition of probation is to obey all laws,

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a probationer who is rearrested on even a minor charge may then be subject to penalties for both the current arrest and the probation violation.

41. Do I get a hearing before my probation is revoked? Yes. If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not a new criminal offense but nevertheless broke a condition of probation (for instance, socializing with people the judge prohibited a defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place, and reason for the probation revocation hearing.

42. What happens at a probation revocation hearing? A probation revocation hearing is like a minitrial without a jury. Both the defense and prosecution may present evidence to show the judge why the defendant should or should not be subjected to whatever penalty the judge originally imposed. The defendant is allowed counsel at this hearing, but the judge does not have to follow strict rules of evidence. Additionally, the legal standard in a probation revocation hearing is lighter than

the beyond a reasonable doubt standard of criminal trials. In the revocation hearing, typically, the prosecution will only have to prove by a preponderance of the evidence that the defendant violated a condition of probation. (These legal standards are difficult to quantify, but essentially this means that it doesn’t take as much evidence, or that the evidence doesn’t have to be as compelling, to take away someone’s probation as it does to find someone guilty of a crime in the first place. In essence, probation is a privilege that can be more easily lost than one’s initial freedom.)

43. Is it possible to plea bargain a probation revocation charge? Yes. When a defendant arrested on new charges is found also to be in violation of an earlier probation order, the defense may negotiate a new plea bargain to cover both offenses in one package deal. This is especially common in busy, big-city courts where calendars are backlogged. (See Chapter 20 for more on plea bargaining.)

Subsection D: Community Service This subsection is about when the court may order the defendant to do some work in the community as an alternative to spending time in jail.

44. Can the judge make me work as part of my sentence? Yes. Judges can sentence defendants to perform unpaid community work called

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“community service” to repay a debt to society for having committed the offense. The defendant may be required to perform community service in addition to receiving some other form of punishment, such as probation, a fine, or restitution.

45. What kind of work does community service usually involve? Typically, offenders are assigned to work for nonprofit or government agencies, such as parks, libraries, schools, cemeteries, religious institutions, and drug and alcohol treatment centers. They may be sentenced to do a wide range of work—from cleaning highways to lecturing students on the dangers of drunk driving. In one very effective community service program, gang member offenders work in a home for mentally and physically challenged children, helping them to dress, eat, and play. Some offenders do community service work in group settings, with other offenders; other times they work alone. They may be supervised directly by the nonprofit group or government agency they are sent to work for or by the probation department. And they may have to report to the court or probation officer at regularly-scheduled times to prove that they are complying with the community service order.

Subsection E: Miscellaneous Alternative Sentences This subsection is about some of the more creative sentencing alternatives that have been tried in recent years.

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46. Are there any other kinds of ­sentences I might get? Yes. There are many different types of “alternative sentences.” Alternative sentencing is the buzzword for an increasingly visible movement in the criminal justice system. Largely inspired by overcrowded and nonrehabilitative prisons, some judges are beginning to work with prosecutors and defense lawyers to impose nontraditional sentences, especially in cases that don’t involve violence. To some, alternative sentencing means anything other than incarceration. And it is true that many alternative sentences are simply variations of probation—perhaps with a fine and community service thrown in. But alternative sentencing can also include fairly innovative punishments. People have been required to: • Install breathalyzer (“ignition interlock”) devices in their cars so that their cars will not start unless the offender blows into the device and has “clean” breath (after drunk driving convictions); • Drive around with signs on their cars notifying others they’d been convicted of a drunk driving offense. (This may be a modern equivalent of the scarlet letter); • Give lectures or teach classes about the dangers of criminal behavior; • Attend lectures given by crime victims. (Convicted drunk drivers may be required to listen to families of people who were killed or maimed in alcoholrelated accidents); • Complete a drug or alcohol treatment program; • Do weekend jail time;

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• Stay at home under house arrest. A person under house arrest may be required to wear an electronic monitoring device, such as an ankle bracelet; • Live in their own slummy building; and • Serve time in private jails. Private contractors provide jail services for a fee, which they charge both governments and inmates. Another alternative approach to handling offenses, especially minor ones and those for which prosecutors have declined to press charges, is for the prosecutor to send the defendant and the victim to a neighborhood justice center to resolve their dispute through a process known as mediation. In mediation, a neutral third party helps the disputing parties arrive at a mutually satisfactory agreement.

“Megan’s Law” (Sex Offender Registration) A “Megan’s Law,” in effect in many jurisdictions, applies to offenders who have been convicted of certain types of sexual crimes, especially sexual crimes against children. (The law was named after Megan Kanka, a seven-year-old New Jersey girl who was raped and killed by a previouslyconvicted child molester who lived across the street from Megan’s family.) A Megan’s Law typically requires an offender to register with police authorities, usually upon release from prison. Depending on an assessment of the risk that an offender will commit a future sexual crime, a Megan’s Law also requires police agencies to notify schools, other agencies, and the public at large as to a registered offender’s whereabouts. The names of registered offenders become part of a national database of sex offenders. Some types of sexual conduct that once were crimes have in recent years been decriminalized. For example, the U.S. Supreme Court invalidated laws prohibiting consensual sex between same-sex couple. (Lawrence v. Texas, U.S. Sup. Ct. 2003). People convicted under such laws who had to register may be able to apply to their state’s justice department to have their name removed from its sex offender database.

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47. I’ve heard that some states have drug courts to handle certain types of drug cases. What are they, and how do they work? Drug courts are a variation of the same current push for alternative sentencing. Founded in the late 1980s, drug courts originally dealt with first-time drug offenders but now admit some repeat offenders. In a slightly different setting than the usual courtroom, the judge and lawyers work together to keep the defendants enrolled in a drug treatment program for a certain minimum period of time. Attorneys in drug courts do not speak as advocates on behalf of their clients; the judge actually talks directly to defendants, who must in turn answer directly. The treatment programs include acupuncture, counseling, education, and job training, along with regular, frequent court appearances and drug testing. The results from some of these programs have been so positive that other jurisdictions are now beginning to set up their own drug courts. By the mid-1990s, there were some 80 drug courts nationwide and many more in the works. Among other achievements, studies show significantly less recidivism (rearrests) in drug court graduates than among regularlysentenced defendants.

48. What is parole, and how does it work? Parole is early jail or prison release granted by prison officials. Parole is similar to probation in that the offender is free from prison, with rights limited by the parole conditions. Conditions of parole tend to be similar but more restrictive than probation conditions. See Chapter 26 for information about parole.

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49. How is a pardon different from probation and parole? A pardon (also sometimes called a “grant of clemency”) is an order from a jurisdiction’s chief executive (a state’s governor or the president of the United States) relieving a convicted person of the penalties for having committed a crime. While a pardon does not necessarily erase a conviction, a pardon normally restores a person’s civil rights. See Chapter 26 for more information about pardons.

Section IV: The Death Penalty This section examines the basic rules and procedures concerning the ultimate criminal sentence, the death penalty.

50. What is the current status of the death penalty in the United States? As of March 2007, 38 states authorize capital punishment, though New York courts have declared its existing statute to be unconstitutional. Five of these states (of which New York is one) have not had an execution since 1976. The offenders who commit such murders are considered the “worst of the worst.” Though some states provide for the possibility of capital punishment in cases involving drug trafficking, aircraft hijacking, and other crimes, all or virtually all of the prisoners now on “death row” have been convicted of murder. Federal criminal laws authorize capital punishment for those convicted of more than 40 different kinds of crimes, including treason, aggravated murder, and drug

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trafficking. Among the most notable people executed by the federal government are Ethel and Julius Rosenberg, executed in 1953 after being convicted of espionage for passing atomic secrets to the Soviet Union; and Timothy McVeigh, executed in 2001 for blowing up a federal office building in Oklahoma City and killing 168 people. However, comparatively few cases involving the death penalty arise in federal court. At the end of 2006, a total of about 3,350 inmates were on death row, a decrease from the year before. Only 50 of these inmates were women. Fifty-three executions were carried out in 2006, compared with 60 in 2005, 59 in 2004, 65 in 2003, and 71 in 2002. (As of the end of March, 11 executions have been carried out in 2007.) In 2005, 128 death sentences were handed down, compared to 138 in 2004 and 153 in 2003. Since 1976, when the U.S. Supreme Court upheld the legality of revised death penalty statutes in the case of Gregg v. Georgia, a total of 1,068 executions have been carried out. Twenty-two of these executed prisoners were under age 18 when they committed the crimes for which they were sentenced to death, a practice that the U.S. Supreme Court later declared unconstitutional (Roper v. Simmons, 2005). Among the 38 states that provide for capital punishment, the rate at which the death penalty is actually carried out varies greatly by region of the country. Since 1976, Southern states have accounted for 876 of the 1,068 executions, with Texas and Virginia accounting for 487 of the Southern state executions. Western states have carried out 66 executions, Midwestern states 122, and Northeastern states four.

Lethal injection (depicted in graphic detail in the film, “Dead Man Walking”), is generally considered to be the most humane form of execution and is the most common current method of carrying out executions. A few states still authorize methods such as electrocution and the gas chamber, but they are rarely used. Hanging and firing squads are outmoded forms of execution that may remain “on the books” in a few states but are no longer used. Dissection and dismemberment, two favorites of the eighteenth century, designed to make the idea of capital punishment as frightening as possible, are long gone.

51. What factors determine whether a death penalty law is valid under the U.S. Constitution? Decisions of the United States Supreme Court have established a variety of standards with which capital punishment laws must comply to satisfy the federal Constitution. The most important standards are: • Statutes authorizing judges and juries to impose the death penalty must set out specific sentencing guidelines that they must consider when determining whether to sentence a particular defendant to death (Gregg v. Georgia, U.S. Sup. Ct. 1976). These statutory guidelines consist of “aggravating factors” (factors suggesting that a defendant might merit a harsher sentence) and “mitigating factors” (factors suggesting leniency). For example, a statute might instruct jurors who have convicted a defendant of a capital crime to take factors such as

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these into account when deciding on punishment: - whether a defendant has previously engaged in violent criminal activity; - whether a defendant has prior felony convictions; - whether a defendant was at the time a crime was committed under extreme duress or the domination of another person; - a defendant’s character, background, history, and mental and physical condition; and - evidence of innocence that the defendant had offered into evidence at trial (Oregon v. Guzek, U.S. Sup. Ct. 2006). So important are these factors that a defense attorney’s failure to investigate a defendant’s personal background thoroughly can constitute “ineffective assistance of counsel” that requires a sentence of death to be reversed (Wiggins v. Smith, U.S. Sup. Ct. 2003). Defendants tried by juries are entitled to have jurors rather than judges consider the sentencing guidelines and decide whether the death penalty is appropriate (Ring v. Arizona, U.S. Sup. Ct. 2002). • The trial must be “bifurcated.” That is, a jury has to first decide whether a defendant is guilty of a capital crime. Then, in a separate proceeding, the jury considers evidence relating to aggravating and mitigating factors and decides whether to sentence a defendant to death or impose a lesser sentence. In many states, if a jury recommends death, the judge retains the power to decide on a

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lesser sentence, such as Life Without Possibility of Parole (LWOP). On the other hand, should a jury in one of these states recommend a life sentence, the judge has no power to impose the death penalty. • The Eighth Amendment’s ban on “cruel and unusual punishment” limits the crimes for which the death penalty can be imposed. For example, a defendant convicted of rape of an adult cannot constitutionally be sentenced to death (Coker v. Georgia, U.S. Sup. Ct. 1977). • The death penalty cannot be carried out on prisoners who are mentally retarded (Atkins v. Virginia, U.S. Sup. Ct. 2002). • The death penalty cannot be imposed on offenders who were under age 18 at the time they committed a crime potentially punishable by death (Roper v. Simmons, U.S. Sup. Ct. 2005). Imposition of death in these circumstances violates both the Eighth (“cruel and unusual punishment”) and Fourteenth (“due process of law”) Amendments.

52. What are “special circumstances”? Among the 38 states that authorize capital punishment, many limit its possible use to murder cases in which “special circumstances” exist. In these states, a prosecutor has to file a murder charge as a “special circumstances” case and prove beyond a reasonable doubt that one or more of the charged circumstances apply. Here are some “special circumstances” that might lead a prosecutor to seek the death penalty: • A murder was committed for the purpose of financial gain;

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• The defendant has a prior conviction for murder; • The murder was committed for the purpose of escaping from custody; • The victim was a police officer, firefighter, or government official; • The murder was committed by means of poison or an explosive device; or • The murder was carried out in a particularly heinous and cruel manner. Case Example: Shemp is charged with first degree murder for killing Moe “with malice aforethought.” The jury convicts Shemp of murder and on the verdict form indicates that “we the jury conclude that Shemp carried out the murder in such a vicious and cruel manner that he ought to be put to death.” Question: If the state’s laws allow the death penalty for a murder committed in a vicious and cruel manner, is the death sentence proper? Answer: No, for two reasons. First, a death sentence may be handed down only if the prosecutor seeks the death penalty at the outset of a case and identifies in advance the “special circumstances” that allow the death penalty to be handed down; also the jury must be told that the special circumstances must be proved beyond a reasonable doubt. Second, the death penalty can be imposed only after a separate penalty hearing in which both sides have an opportunity to present evidence of aggravating and mitigating factors.

53. Do prosecutors use special ­procedures when deciding whether to seek the death penalty? Yes. In the usual case in which capital punishment is not an option, charging decisions are made by a single prosecutor who reviews police reports and decides what charges to file. (See Chapter 6.) By contrast, a charging decision in a capital case is usually made by a team of a District Attorney’s most experienced prosecutors, often including the District Attorney personally. Before deciding to seek the death penalty, the prosecutorial team must of course be convinced that it can be proved that a defendant committed a capital crime. Charging decisions may also be influenced by factors such as the following: • Costs. Compared to cases in which LWOP is the ultimate sentence, capital cases normally add to a case’s costs and complexity. For example, capital cases ordinarily take longer to try and may involve automatic appeals. Also, in some states a defendant facing the death penalty is entitled to two governmentpaid lawyers rather than one. • Adverse jury reaction. A prosecutor may fear that a jury will acquit a defendant for whom it may feel some sympathy rather than see the defendant face the possibility of execution. (This was apparently a major factor in the L.A. District Attorney’s decision not to ask for the death penalty in 1995’s famous prosecution of O.J. Simpson. Of course, Simpson was acquitted anyway.) • Popular support. A prosecutor may believe that continued popular support of the death penalty depends on seeking it only in the most egregious cases.

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• Excuse of defense-minded jurors. A prosecutor who seeks the death penalty is entitled to remove potential jurors who have serious qualms about voting for capital punishment. Because the jurors removed by this process may be defense-oriented, prosecutors may seek capital punishment in order to select a jury that may be prosecution-minded. • Improper biases and prejudices. Some commentators contend that prosecutors are more likely to seek the death penalty when defendants are poor or members of ethnic minorities, especially when their victims are Caucasian. On the other hand, if the jury recommends LWOP, the judge has no power to impose the death penalty.

54. What are the issues in the death penalty debate? The debate over the morality and wisdom of the death penalty began to heat up in the latter half of the twentieth century. One factor was that many Western European and other countries, including Canada, Mexico, and New Zealand, abolished the death penalty in the period between 1950 and 1970, leaving the United States increasingly isolated as a country with both a modern and complex criminal justice system and capital punishment. Another factor was that the appeal process began to lengthen, making death row prisoners increasingly visible. Among the most famous of these was Caryl Chessman, the so-called “red light bandit,” who was sentenced to death in California in 1948 for committing a number of “lovers lane” kidnappings (he killed

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nobody). A series of appeals kept Chessman alive until his execution in 1960. While in prison he wrote four books that called international attention to the United States’ use of the death penalty, since some of his books were translated into other languages and became popular in other countries. (One of his books became a 1955 film, “Cell 2455, Death Row.”) Polls indicate that somewhere between 60% and 70% of Americans continue to support capital punishment, a figure that has dropped somewhat since states have created the alternate sentence of Life Without Possibility of Parole. However, the debate over the legitimacy of the death penalty is likely to continue for many years. One reason is that at the center of the debate are conflicting beliefs about the morality of the death penalty, and attitudes based on what people view as moral imperatives are not easily changed. A second issue dividing death penalty proponents and opponents concerns deterrence. Proponents argue that the death penalty deters at least some people who would otherwise commit murders from doing so, and that its deterrent effect would be even greater were unnecessary delays in carrying out death sentences eliminated. However, the answer to the question of whether the death penalty acts as a deterrent is uncertain. Many social science researchers have investigated the deterrence hypothesis; some studies have shown a deterrent effect while others have not. Whatever their conclusions, the weakness in all these studies is that consensus is lacking on how to “model” the murder rate. That is, deterrence can be

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measured only by comparing murder rates in different jurisdictions that have or don’t have the death penalty using variables such as poverty rates, racial makeup, and the like. Since researchers don’t agree on which variables to include and how much weight to give them, there exists “a raging methodological disagreement over how best to pick the variables, and a nagging suspicion that researchers’ own attitudes toward capital punishment were subconsciously influencing the forms of equations” (The Death Penalty: An American History, by Stuart Banner (Harvard Press)). Equally untestable at present is the claim that the death penalty’s deterrent effect would be greater were it carried out more quickly or frequently, because the federal constitution prevents states from eliminating or severely cutting back on prisoners’ access to the courts. A third issue concerns the risk of executing innocent prisoners. The use of DNA testing and other scientific techniques has revealed that a few death row prisoners were factually innocent. In recent years, at least two states, Illinois and Maryland, have placed a moratorium on carrying out the death penalty because of worries that innocent people may be put to death. Death penalty proponents of course have no desire to execute innocent prisoners and generally agree that its use should be confined only to those whose guilt is beyond dispute and who are in fact “the worst of the worst.” However, some support for the death penalty has been undermined by the fact that mistakes have been made in the past and the risk that, despite the wide use of scientific technology at trial, others may be made in the future.

A fourth issue concerns what opponents claim is the disparate racial impact of the death penalty. The U.S. Supreme Court has ruled that racial disparities in the use of the death penalty, if any, do not render its use unconstitutional (McCleskey v. Kemp, U.S. Sup. Ct. 1987). Nevertheless, in an effort to convince states to abolish capital punishment, opponents argue that the disparity in the use of the death penalty concerns not the defendants but the victims of crimes. The death penalty is unfair, they argue, because research studies tend to show that it is imposed when victims are Caucasian much more often than when they are Black or members of other racial minorities. However, the merits of this argument are unclear. As Banner points out, “Most murders involved criminals and victims of the same race, so equalizing the treatment of victims would cause more black defendants to be sentenced to death. From the point of view of one concerned with race discrimination, was that a desirable outcome?” Banner concludes that the consequences of the racial disparity argument are unclear (The Death Penalty: An American History, by Stuart Banner (Harvard Press)). A final concern involves the costs of administering the death penalty. The costs are much higher than for prisoners given other types of sentences, including Life Without Possibility of Parole. The high costs are attributable to the legal system itself. For example, in many states defendants facing the death penalty who cannot afford to hire private attorneys (and that is almost all defendants) will be represented by two lawyers rather than one, both paid for by

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the government. Also, both the prosecution and the defense are likely to call on a variety of expert witnesses both at the guilt and sentencing phases of capital cases, adding significantly to their cost. Another reason for the high costs of capital punishment is that death penalty verdicts typically generate lengthy appeals and “collateral attacks” via habeas corpus and other procedures. Finally, “death rows” themselves entail higher costs, in part because states take extra precautions with prisoners sentenced to death. If opponents succeed in convincing states to eliminate capital punishment, the reason may be that people come to believe that the financial impact of the death penalty on state budgets outweighs the death penalty’s merits.

References The following references can provide more death penalty information: • The Death Penalty: An American History, by Stuart Banner (Harvard Press), is a thorough and largely neutral

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account of the history of the use of the death penalty. • Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, by Jim Dwyer, et. al. (Doubleday, 2000), explains the use of DNA evidence in murder trials and describes a number of fascinating cases of “getting the wrong guy.” • The Cornell Death Penalty Project (freak's store フリークスストア スウェット トレーナー death) is an anti-capital-punishment website administered by the Cornell Law School. • The American Civil Liberties Union provides anti-capital-punishment information at its website (呪術廻戦 五条悟&釘崎野薔薇セット. org/capital/index.html). • Pro-Death Penalty.com (www. prodeathpenalty.com) is one of the few sites with information supporting the death penalty and links to other websites, both pro and con. • The Death Penalty Information Center (www.deathpenaltyinfo.org) sponsors an anti-death-penalty website. ■

Chapter 23

Appeals: Seeking Review by a Higher Court Section I: Appeals………………………………………………………………………………………………490 1. What is an appeal?……………………………………………………………………………………490 2. If I had a private lawyer at trial, can that lawyer handle my appeal?………………….490 3. Can I remain free on bail during the time I’m appealing the conviction?…………….491 4. When can I file an appeal?…………………………………………………………………………491 5. How long do I have to decide whether I want to appeal?…………………………………492 6. How long will the whole appeal process take?………………………………………………492 7. During trial my lawyer said we have to “make a good record for appeal.” What does this mean?……………………………………………………………………492 8. How do I get a copy of the trial transcript?…………………………………………………….494 9. What happens after I’ve given notice I want to appeal?……………………………………494 10. What is an “appellant” and an “appellee”?……………………………………………………494 11. What information do appellate courts consider when ruling on an appeal from a trial court conviction or sentence?……………………………………………494 12. What exactly goes into a written appellate brief?……………………………………………495 13. What happens after the briefs are written and filed?………………………………………..495 14. What does it take to get a conviction reversed?………………………………………………495 Section II: Writs . ………………………………………………………………………………………………496 15. What is a writ?………………………………………………………………………………………….496 16. What’s the difference between a writ and an appeal?……………………………………..496 17. What is a writ of habeas corpus?………………………………………………………………….497 18. Can habeas corpus be used for anything other than getting me out of jail?………….498 19. What other writs might be relevant to my case?……………………………………………..498 20. At what stage of my case can I file for a writ?…………………………………………………499

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not guilty verdict on all charges normally ends a criminal case. The prosecution cannot appeal once a defendant has been acquitted of the originally-charged offenses and any additional offenses the judge may allow the jury to consider. A guilty verdict, however, on some or all the charges, does not necessarily mean the case is over. Defendants who think they’ve been wrongfully convicted have a number of options: 1. The defendant can make a motion asking the trial judge to overturn the jury’s guilty verdict and enter a verdict of not guilty; 2. A defendant can move for a new trial—that is, ask the judge to set aside the jury’s verdict, declare a mistrial, and start over; 3. Defendants can appeal (ask a higher court to reverse the conviction because the jurors made a mistake); and Chapter 19 discusses the motions that a defendant can bring after a jury or judge has found the defendant guilty. This chapter discusses common questions about appeals to higher courts.

Section I: Appeals This section provides an overview of the appeal process in a criminal case.

1. What is an appeal? An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because posttrial motions requesting trial courts to change their own judgments or order new jury trials are seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court’s sentencing decision without actually challenging the underlying conviction.

2. If I had a private lawyer at trial, can that lawyer handle my appeal? As a general rule, a convicted defendant should try to find a lawyer who is experienced in appeals. While this may be the same lawyer who tried the case, often attorneys who handle criminal appeals possess a special expertise regarding that process—an expertise that many trial lawyers lack. Also, many appeals involve the possibility of challenging the competency of the trial attorney as a basis for appeal.

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Self-Representation on Appeal As mentioned throughout this book, in most circumstances self-representation in a criminal case can be risky because: • the rules are complex; • the stakes can be high—liberty or life— not “just” losing money as in civil cases; and • court personnel, judges, and even jurors are often hostile toward self-represented defendants. If these factors are present in pretrial and trial proceedings, they are even more evident in appeals, which tend to be more formal and to involve more written work and pickier rules. Appellate courts have requirements for every aspect of appellate practice; written briefs are no exception. Rules for briefs often specify the number of pages, type and color of paper, binding, size of spacing, and even print type. For these reasons, and because the law can be complex, drafting an appellate brief

3. Can I remain free on bail during the time I’m appealing the c­ onviction? Defendants who have been at liberty during the pretrial and trial phases of a case often are allowed to remain at liberty pending an appeal, although some states impose extra requirements. For instance, in felony cases in California, the defendant must show by clear and convincing evidence that she is not a danger to the community or to other people. (See Cal. Pen. Code § 1271.1(3)(b).)

can be difficult even for an experienced attorney. Counsel may have to undertake extensive legal research to effectively understand and make appropriate references to necessary statutes, court cases, and administrative regulations, and sometimes even the state or the federal constitution. Appellate courts also have their own sets of rules for oral arguments, which may differ from the rules in trial courts. Thus, even defendants who represented themselves at trial may want to hire an attorney for an appeal. That said, it is possible (though undoubtedly rare) for a self-represented defendant to get extra sympathy on appeal. In at least one instance known to the authors, an earnest, enthusiastic law clerk who felt sorry for a self-represented defendant researched the issues and “rewrote” the defendant’s brief in order to more effectively present that defendant’s arguments to an appellate court judge.

4. When can I file an appeal? The general rule is that cases may not be appealed until the trial court enters a final judgment. The entry of judgment is the official recording of the judge or jury’s guilty verdict or the judge’s order denying any posttrial motions. Not surprisingly, this is known as the “final judgment rule.” The policies behind the final judgment rule are to prevent piecemeal and repetitive appellate review of trial judges’ rulings, and to eliminate appeals altogether in cases that end with not guilty verdicts.

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Case Example: Eileen Johnson is on trial for assault with a deadly weapon. During the testimony of a prosecution witness, the judge admits evidence that Eileen’s attorney thinks is improper hearsay. Question: Can Eileen immediately appeal the trial judge’s decision to admit the testimony? Answer: No. Under the final judgment rule, Eileen cannot appeal until the case is over. If Eileen is convicted, Eileen can ask the appellate court to set aside the judgment based on the erroneous admission of hearsay evidence and on any other grounds that may exist.

5. How long do I have to decide whether I want to appeal? Appeals are subject to strict time limits. A defendant may have to file a paper called a notice of appeal very soon, often within seven to ten days after the entry of the final judgment. A notice of appeal tells the prosecution and the court that the defendant intends to bring an appeal. Defendants who later change their minds may withdraw notices of appeal without penalty, but if they don’t first file their notices in time, they will likely have lost their right to appeal.

6. How long will the whole appeal process take? The appeals process usually takes many months. A trial transcript must be prepared, and both the defense and prosecution prepare briefs and respond to each other’s briefs. Also, some cases go through two or

even three levels of appellate courts. (See the list at the end of this chapter.)

7. During trial my lawyer said we have to “make a good record for appeal.” What does this mean? The official trial record consists of: • what is said and taken down by the court reporter during court proceedings; • exhibits admitted into evidence; and • documents filed with the court. Because appellate courts do not hear new evidence—they rely on the written trial record—what goes into that record is allimportant for an appeal. Defense attorneys make a good trial record when they carefully: • Advise a trial judge of all the evidence supporting their arguments. For example, defense witnesses must testify loudly enough for the judge, jury, and court reporter to hear and understand what they say. • Translate gestures (made by witnesses, counsel, the judge, or anyone else who speaks) into words. Assume that a witness holds her hands two feet apart and testifies, “I was standing this far away from her.” The distance may be clear to everyone in the trial courtroom, but it will be meaningless to appellate judges. The appellate judges have only a transcript to read; they can’t see the witness or ask for further clarification. The attorney must make a good trial record by translating the gesture into words: “For the record, the witness is holding her hands about two feet apart.”

Chapter 23: Appeals

• Advise the trial judge of all the evidence and arguments concerning the admissibility of evidence. As a general rule, appellate courts will not consider arguments about the admissibility of evidence unless the arguments were raised in the course of the trial (thereby giving the trial judge a chance to rule). For instance, the appellate court will consider an argument that the trial judge should have excluded prosecution evidence only if that argument was first made to the trial judge at the time the evidence was offered. It is especially important for the defense to make a good record, because most criminal trials end in guilty verdicts. If the defendant wants a shot at a reversal on appeal, the trial court record must be solid. As mentioned, if something bad happens to the defendant during trial that does not become a part of the record, the appellate court cannot consider it. If the appellate court can’t even consider what happened, it is not likely to reverse a guilty verdict. By contrast, the more complete the record, the better the defendant’s chances on appeal (assuming, of course, that mistakes were made that likely influenced the outcome). Case Example 1: A prosecution witness, the alleged victim Suzie Fels, sneers at the defendant Andrew Williams while he is testifying. Suzie mouths in a whisper (so the court reporter can’t hear) to the jury, “Evil man … I hope he hangs.” Question: What, if anything, should the defense do?

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Answer: Speak up and say something like, “Your Honor, let the record reflect that the witness is making faces at my client and ­whispering things to the jury. Please instruct the witness to stop that prejudicial behavior and instruct the jury to disregard her actions and statements.”

Case Example 2: Same case. Question: If Andrew’s lawyer did not stop the proceedings and put the facts on the record, could he later complain to the appellate court that, “the verdict should be overturned because Suzie made faces at my client and whispered disparaging remarks to the jury”? Answer: No. If the behavior does not appear in the record, it won’t be considered by the appellate court.

Case Example 3: Same case. The trial court judge gives the instruction desired by the defense, but Andrew is convicted anyway. On appeal, Andrew argues, “The trial court judge should have stopped the trial immediately and dismissed the charges because of Suzie’s grossly prejudicial behavior.” Question: Will an appellate judge consider this argument? Answer: Probably not. Andrew neglected to argue for dismissal during the trial. Since Andrew didn’t give the trial court judge a chance to consider this argument, an appellate judge needn’t rule on it. To make a good record, the defense should have argued for dismissal during the trial.

Case Example 4: Dave Lenoman is on trial for burglary. Dave’s defense is an alibi.

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During the trial, Dave asks the judge to receive into evidence a hotel receipt showing that Dave was out of town on the evening of the burglary. The judge rules that the receipt is inadmissible hearsay, and refuses to admit the receipt into evidence unless Dave offers evidence showing that the receipt is a business record, a type of admissible hearsay. Dave fails to offer such evidence. On appeal, Dave submits an affidavit from the hotel clerk demonstrating that the receipt was a business record. Question: Will an appellate judge rule that the trial judge should have admitted the receipt into evidence as a business record? Answer: No. Dave failed to offer the necessary evidence at trial, and can’t offer it for the first time on appeal.

9. What happens after I’ve given notice I want to appeal? Once the defense decides to appeal a case and files a notice of appeal, the appellate court will typically set a schedule. They tell the parties when their briefs (written arguments) must be filed and when the parties must appear in court, if at all, to present their case orally to the court (called “oral argument”).

10. What is an “appellant” and an “appellee”? When the appellate process starts, the defendant is usually called the appellant or petitioner. And the prosecution is called the appellee or respondent.

Case Example 5: Same case. During Dave’s trial, the prosecutor offers evidence that Dave had been previously convicted of drunk driving. Dave neglects to object to this evidence. Question: On appeal, can Dave argue that the trial judge should have excluded evidence of the conviction? Answer: No. Since Dave neglected to object to the evidence during trial, he cannot object on appeal.

8. How do I get a copy of the trial transcript? As part of preparing an appeal, the defense must order a trial court transcript from the court reporter. Transcripts are usually quite costly. However, indigents (poor defendants) may obtain transcripts at no or little cost.

11. What information do appellate courts consider when ruling on an appeal from a trial court ­conviction or sentence? An appellate court will not look at new evidence or hear witnesses. Unlike trial courts that decide issues of fact (deciding who is telling the truth or what happened), appellate courts decide issues of law. Appellate judges read the parties’ briefs and make decisions such as whether a trial court decision should be overturned or whether a sentence should be modified.

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12. What exactly goes into a written appellate brief? Briefs typically refer to: • Specific parts of the trial transcript. (Appellate judges generally look only at those portions of the record cited in the briefs submitted by the parties); and • Statutes and previous court opinions that the lawyers are relying on as authority for the appellate court to uphold or overturn the trial judge’s rulings. Lawyers develop the arguments in briefs by doing legal research into how other courts have decided similar legal problems and then applying the reasoning in these earlier decisions to the present case. (More on legal research in Chapter 27.) Typically there are three briefs in an appeal from a criminal case: • the appellant files an opening brief; • the respondent files a responding brief; and • the appellant files a reply brief.

13. What happens after the briefs are written and filed? After briefs are filed, the lawyers may have the opportunity to appear before the appellate court to orally argue the appeal. It is an increasingly common practice, however, for courts to decide appeals on the briefs and trial record without hearing argument. If an oral argument does take place, it will likely be limited in time—from two to five minutes in some state appellate

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courts to 30 minutes in some federal courts. Because both sides will have submitted their arguments in writing ahead of time, the appellate judges will know what the issues are and often limit the discussion to specific questions. An appellate court may take days, weeks, or even months to decide an appellate case.

14. What does it take to get a ­conviction reversed? Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed “perfect” trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed harmless, and consequently few convictions are reversed on appeal. Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

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Section II: Writs This section is about some of the ways a criminal defendant can get help from a higher court outside of the regular appeals process.

Writs, like appeals, are complex and involve picky details. Defendants facing situations in which they may be entitled to take a writ should consult counsel.

15. What is a writ?

16. What’s the difference between a writ and an appeal?

The word “writ” traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. Writ was the name for an action in the courts. There were different kinds of writs for different actions—writs to recover land or personal property, to enforce judgments, to seek damages for broken contracts. Most of the common law writs have been abolished and replaced by the civil actions we know today. In another sense, the word writ meant, and still means, an order. For example, an “original writ” in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our “summons” ordering a party to appear in court. In most modern American jurisdictions, a writ is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts—an intermediate appellate court and the state Supreme Court.) This section merely provides an overview about common writs.

Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to appeal. Any one of the following reasons, for example, may prohibit an appeal (and justify a writ): • The defense did not lodge a timely objection at the time of the alleged injustice; • The matter at issue concerns something that goes beyond the trial record; • A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense; • The matter is urgent. Writs are heard more quickly than appeals, so defen­ dants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court; and • The defendant has already lodged an unsuccessful appeal (in some cases, defendants may file multiple writs, but the right to appeal is limited to one).

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17. What is a writ of habeas corpus? Defendants who want to challenge the legality of their imprisonment—or the conditions in which they are being imprisoned—may seek help from a court by filing what is known as a “writ of habeas corpus.” A writ of habeas corpus (literally to “produce the body”) is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the United States Constitution, which specifically forbids the government from suspending writ proceedings except in extraordinary times— such as war (Article 1, § 9[2]). Known as “the Great Writ,” habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months—even years—without charging them, and those imprisoned have no legal channel by which to protest or challenge the imprisonment. The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy in granting their writs.

Rules governing writs are complex and changing. Defendants seeking review through writs, especially writs of habeas corpus, must be aware that the rules governing these proceedings are even more complex than the rules governing appeals, and the law in this area changes frequently. For more information on postconviction proceedings generally, see Advanced Criminal Procedure in a Nutshell, by Mark Cammack and Norman Garland (ThomsonWest Publishing, 2001). For information on federal habeas corpus proceedings ask a law librarian to help you locate the federal habeas corpus laws at 28 U.S.C. § 2254 and the reference volume Rules Governing § 2254 Cases in the United States District Courts. For more on habeas proceedings in the U.S. Supreme Court, see Chapter 11, “Extraordinary Writs,” in Supreme Court Practice, by Robert L. Stern et. al. (BNA Books), and on federal habeas proceedings generally, see Federal Habeas Corpus Practice and Procedure, 3d ed., by Randy Hertz and James Liebman (5th Ed. LexisNexis).

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Suspension of the Great Writ During the Civil War, President Lincoln suspended the right of habeas corpus, pursuant to Art. 1, § 9, of the United States Constitution. Generals in the field thus had authority to arrest and keep people in custody whom they considered “threats to public safety”; those arrested no longer had the right they previously enjoyed to challenge the legality of the imprisonment in the court system.

Case Example: Defendant Ed Ippus was convicted of murder. He contends that the only reason he was convicted was that his attorney, Johnny Baily, was incompetent. The basis for Ed’s contentions is that his attorney came to court drunk every day during the trial, thus depriving Ed of his Sixth Amendment right to effective assistance of counsel. Question: Can Ed make such an argument if the trial court’s official record (transcripts of the proceedings) does not reveal that counsel was intoxicated? Answer: Yes, Ed may file a request for a writ of habeas corpus, either by itself or in conjunction with an appeal. If the appellate court is persuaded, it may go beyond the record and consider new evidence, for example, testimony of a juror who smelled alcohol on Baily’s breath in the elevator during court recesses.

18. Can habeas corpus be used for anything other than getting me out of jail? In recent decades, defendants have filed increasing numbers of habeas corpus petitions requesting new and unusual forms of relief. For example, defendants have filed writs (successfully or unsuccessfully) to: • reduce or set bail; • speed an arraignment; • contest being denied a jury trial; • challenge a conviction when not informed of the right to counsel at certain pretrial proceedings; and • contest prison overcrowding, excessive solitary confinement, or other prison conditions.

Custody Doesn’t Only Mean Jail A person doesn’t have to be in jail or prison to use the writ of habeas corpus. A defendant committed to a mental institution, for example, after pleading not guilty by reason of insanity, may also use the writ of habeas corpus to contest an illegal commitment or unlawful conditions.

19. What other writs might be ­relevant to my case? The writ of prohibition and the writ of mandamus are also sometimes used in criminal cases. These writs, often used together and sometimes interchangeably, are in essence complements of one another. The writ of prohibition is an order from an appellate court to the trial court to stop some

Chapter 23: Appeals

particular action. A writ of mandamus (also known as a writ of mandate) orders a lower court to do something. The purpose of both writs is in essence to keep lower courts (and others affected) from exceeding their lawful jurisdiction. Case Example: Rodney Prince, facing charges of resisting arrest, objected to the trial judge’s ruling to exclude evidence of the arresting officer’s personnel file. The file noted numerous incidents in which the arresting officer, Noah Kontrol, had been reprimanded for beating suspects. In order to effectively raise his defense that he was forced to resist Kontrol because he threatened to beat him, Prince needs the information in the personnel file.

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Question: Is there anything Prince can do to force the judge to admit the evidence?

Answer: Prince may be able to get the relief he needs by requesting a writ of mandamus from a higher court requiring the judge to admit the evidence. However, the higher court would probably refuse to issue the writ, since this is likely a point that Prince could argue on appeal if he were to be convicted.

20. At what stage of my case can I file for a writ? Because of their similarity to appeals, writs are discussed in this chapter on postconviction proceedings. But parties may take a writ (apply to an appellate court for relief through a writ proceeding) before, during, or after a trial.

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Potential Postconviction Remedies As discussed in this chapter, convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals, and writs. The following list illustrates these steps. A defendant who loses at one may go on to the next step, all the way down the list (up the legal chain) in a process that can take many years—especially for serious felonies such as death penalty cases.

This list is merely an illustration of possible postconviction proceedings—some of which may only be used in certain cases. Also, defendants usually must first have unsuccessfully sought relief through the available state remedies before they will be allowed to seek relief in federal courts. For these reasons, and because of the complexities of these proceedings and what is at stake (liberty or life), defendants should consult counsel to determine which remedies are available to them.

List of Writ/Appeals Process • Motion for Acquittal. Requests that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented. • Motion for a New Trial. Requests that the trial judge declare a mistrial and grant a new trial.

• Appeal to State Appellate Court. Contends that the trial judge made some legal error. • Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision. • State Supreme Court Appeal. Requests that the highest court in the state review and overturn the decision of the midlevel appeals court. • U.S. Supreme Court Appeal. Requests that the highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution. • State Court Habeas Corpus Petition. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that he is being held in violation of some state law or constitutional right. • Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release him because he is being held in violation of the U.S. Constitution. • Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the midlevel federal court to review the federal trial court’s decision denying the writ. • Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the midlevel federal court’s decision denying the writ.

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Chapter 24

How the Criminal Justice System Works: A Walk Through Two Drunk Driving Cases Section I: Questions and Answers About DUI (Driving Under the Influence) …………….502 1. I’ve never heard the term DUI. Are there other terms for what I think of as drunk driving?…………………………………………………………………………………..502 2. What type of behavior describes a DUI offense?…………………………………………….502 3. What are “illegal per se” laws?……………………………………………………………………503 4. I’ve been charged with DUI. What are my chances of getting the prosecutor to agree to change it to a less serious offense?………………………………..504 5. Will a DUI conviction have any effect on my driver’s license or operator’s permit?……………………………………………………………………………………..504 6. What is a field sobriety test?………………………………………………………………………..505 7. What are blood alcohol tests?……………………………………………………………………..505 8. What will happen to me if I refuse to take a blood alcohol test?………………………..506 9. Can I choose which blood alcohol test I want to take?…………………………………….507 10. Is there anything I can do to protect myself if I am asked to take a field sobriety test (FST)?………………………………………………………………………………507 11. What type of evidence is used in a typical DUI trial?………………………………………508 12. Are there some particular things I should do or not do if I’m involved in a DUI-related accident?………………………………………………………………………….508 13. What are my chances in court if I decide to fight a DUI charge?……………………….508 14. What sentences are typically handed down for violating DUI laws?………………….509 15. What type of sentence am I facing if I have a previous DUI conviction on my record?…………………………………………………………………………………………..509 16. What kind of lawyer should I get to fight a DUI charge?………………………………….510 17. I was arrested, and my arraignment is coming up. I still haven’t found a lawyer. What should I do?……………………………………………………………………….511 18. Where can I find out more about DUI laws in my state?………………………………….511 Section II: DUI Case Examples……………………………………………………………………………..511

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his chapter walks through two fairly routine criminal cases in which the defendants are both charged with “DUI,” driving under the influence of alcohol or drugs. The first section gives some background on the law of DUI. The second section shows what happens to the defendants, Shelly Rogers and Julian Daniels, from the time they are arrested until the day they are sentenced by the court. Readers will get a chance to review the police reports, and “listen in” on the interviews the defendants have with their public defender and on the court proceedings they face. Since more than 90% of criminal cases end in plea bargains rather than going to trial, both of these defendants’ cases end in plea bargains. (See Chapter 20 for more on plea bargaining.) The sentences each defendant receives, however, are very different, due among other reasons to the fact that Rogers is a repeat offender whereas this offense is Daniels’s first. (See Chapter 22 for more on sentencing.)

Section I: Questions and Answers About DUI (Driving Under the Influence) This section provides general information about how drunk driving cases are handled in the courts.

1. I’ve never heard the term DUI. Are there other terms for what I think of as drunk driving? States have different terms for DUI. Some of these are: • DUIL (driving under the influence of liquor); • DWI (driving while intoxicated); • OMVI (operating a motor vehicle intoxicated); • OWI (operating while intoxicated); or • OUI (operating under the influence).

2. What type of behavior describes a DUI offense? In many states, a DUI offense consists of the following facts (elements): • driving or operating (sometimes even sitting behind the wheel will suffice) • a motor vehicle (typically a car, but a motor vehicle can also can be a truck, a motorcycle, a golf cart, a tractor, a bicycle, a horse, and possibly even a skateboard). • while under the influence of an intoxicating beverage or drug, or with a certain blood alcohol level over the legal limit (0.08% in many states or 0.01% or above for persons under 21 years of age).

Chapter 24: How the Criminal Justice System Works

The Popular Term “Drunk Driving” Misses the Point Notice the difference between the legal term “driving under the influence” and the more familiar term “drunk driving.” The former does not have the word “drunk” in it. This difference can have tremendous legal importance in a criminal case. It means that the prosecution does not have to show the defendant was drunk, but simply that the defendant had enough alcohol in her system to possibly be affected by it when in control of a motor vehicle. It may in some cases be enough, for example, to have the arresting officer testify that the defendant’s breath smelled of alcohol or that the defendant’s eyes were bloodshot (red). The prosecution may offer evidence that the defendant, when questioned by the officer, said that she felt “happy” or “relaxed,” even though that defendant may not have meant at all to imply that she was drunk. Bottom line: What the typical DUI defines as a crime can differ drastically from the image many people have in mind when they hear the word “drunk.”

3. What are “illegal per se” laws? In states that have illegal per se laws, defendants whose blood alcohol levels meet or exceed the legal limit are DUI, regardless of whether the alcohol has in fact affected their behavior or whether they are actually intoxicated. In those states, the only facts (elements) the prosecution has to prove are:

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• the defendant was driving or in physical control of a vehicle (in some places on a public road); and • at the time the defendant was driving or in physical control of the vehicle, the defendant’s blood alcohol level was above the legal limit. (In some states, the accused does not even have to be driving. If a driver has pulled over to get some rest, but is still behind the wheel in a position to drive, the police may make a lawful arrest.)

By contrast, in states that do not have illegal per se laws, the prosecution may use the defendant’s blood alcohol level as evidence of being under the influence. But typically, the prosecution will also have to provide further evidence that either the defendant suffered from symptoms of the influence of alcohol (for instance, bloodshot eyes or smell of alcohol on the breath) or that the defendant’s driving was impaired (e.g., weaving in and out of lanes, or following too closely to the car in front). Even in states that have illegal per se laws, observations of police officers (sometimes called field evidence) are still relevant to proving a DUI case. Also, prosecutors sometimes bring charges under both general driving under the influence laws and per se laws. Then, if the defense pokes holes in one of the approaches (for instance, the testing procedure was faulty or the officer’s observations were not trustworthy), the prosecution will have the other approach to use to secure a conviction.

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4. I’ve been charged with DUI. What are my chances of getting the prosecutor to agree to change it to a less serious offense? Most often, when the evidence of DUI is strong, prosecutors will not agree to reduce this crime to a lesser offense, especially if the DUI is a repeat offense or it involved an accident that resulted in injury or substantial property damage. However, if the evidence is weak or marginal (for instance, the defendant was driving well and tested just above the legal limit), the prosecutor may be willing, in exchange for a plea of guilty, to reduce the charges to an offense such as: • reckless driving (which in most states is a less serious misdemeanor); or • speeding (only an infraction). For more on plea bargaining, look to Chapter 20. Many times, when charges are reduced to a less serious offense, the punishment will be less severe. But even when the sentence for the lesser crime is still tough, it still carries less stigma than a DUI conviction. And though, of course, all efforts should be made to avoid driving under the influence, if a defendant were to be charged in the future with a second offense, the sentence in that future case would likely be much more severe if the first offense had remained a DUI than if the first offense had been reduced to a lesser charge. Many states, for example, give mandatory jail sentences to second-time DUI offenders. (See chart illustrating sentences for DUI offenses accompanying Question 15.)

Use of Plea in a Later Civil Trial Defendants who end up plea bargaining a DUI case in which injuries or property damage occurred usually plead no contest rather than guilty. This is because, in most jurisdictions, a no contest can’t be admitted as evidence in a later civil case, whereas a guilty plea can (as an admission of guilt). (For more on this issue, see Chapter 20.)

5. Will a DUI conviction have any effect on my driver’s license or operator’s permit? In most states, in addition to criminal proceedings, an accused drunk driver also faces administrative proceedings in which the agency in charge of motor vehicles and licenses will try to take the person’s driver’s license away for a lengthy period of time (often six to 12 months). The impact of this on a defendant differs from place to place. In large urban areas where public transportation is convenient, it may be less damaging to have a license taken away than in suburban or rural areas. Also, many states restrict rather than completely suspend licenses so people may drive to and from work—though usually nowhere else. But in states that do suspend licenses for first-time DUI offenses, for those who need their cars to work, the administrative penalty may actually end up being more severe than the judge’s sentence.

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6. What is a field sobriety test? Field sobriety tests, or FSTs, are tests given by police officers to drivers in order to determine if they are driving under the influence of alcohol or drugs. The word “field” means at the scene of the stop (usually the side of the road or highway), as opposed to the station house. The classic FSTs involve the police asking suspected DUI offenders to: • touch their nose; • stand on one foot; • walk a straight line; and • recite the alphabet, forwards or backwards. Also, the police may conduct blood alcohol tests (discussed below) in the field using a portable machine that tests blood alcohol content by analyzing a suspect’s breath. Other blood alcohol tests, such as blood or urine tests, are typically done at the police station or a local hospital.

to blood alcohol content, however. Instead, the laws of those states now define a legal urine alcohol or breath alcohol limit. There are, of course, a number of variables that can affect the overall accuracy of these tests—human factors, such as the rate at which different people absorb alcohol, and technical factors, such as the competence of the person performing the tests and the accuracy of the testing machines.

For more on blood alcohol tests, see Challenging the Breath Test at Trial: A Practical Guide for Defense Attorneys, by Michael S. Taheri, et al. (Dimensions). Nolo also publishes Fight Your Ticket & Win in California (geared to California law) and Beat Your Ticket (a national book) both by David W. Brown. Both include easy-to-understand yet detailed discussion of blood alcohol testing that may assist readers.

7. What are blood alcohol tests? Three commonly-used tests measure the amount of alcohol in a suspect’s body: blood, breath, and urine tests. Blood tests directly measure the amount of alcohol in a suspect’s bloodstream. Breath and urine tests measure essentially the same thing but do so by using a mathematical formula to convert the percentage of alcohol in the breath or urine to the likely corresponding blood alcohol content. Some states no longer require breath percentages to be converted

Get an Independent Blood Test Many devices used by police officers to take a breath test out in the field are equipped to capture two samples. One of these is for the police laboratory to analyze, while the other one is preserved for possible testing in an independent laboratory at the behest of the defendant. It is almost always a good idea for a defendant to arrange for an independent test—unless the status of the defendant’s sobriety isn’t in serious question.

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8. What will happen to me if I refuse to take a blood alcohol test? Some drivers refuse to cooperate with the police when the police attempt to conduct a blood alcohol test. Whether this is wise depends on the situation—see the related case example below on refusal to take a breath test. In many states, the law assumes that as a condition of obtaining a driver’s license, drivers consent to alcohol or drug testing if the police have probable cause to believe they are driving under the influence. Such laws are called “implied consent” laws. Under these laws, drivers do not have the right to refuse to take a blood alcohol test, and failure to cooperate typically results in the loss of driving privileges for a specified period of time, regardless of what happens in the underlying DUI case. Often, a license suspension for failure to take the test is as long as (or longer than) what results from a DUI conviction (to eliminate any incentive not to take the test). In addition, a refusal may increase a defendant’s ultimate jail time if that defendant is convicted. Some DUI defendants have tried to argue a constitutional right to refuse to take the test on the grounds that a mandatory test violates their Fifth Amendment right against self-incrimination. However, as discussed more fully in Chapter 1, the U.S. Supreme Court has decided that the Fifth Amendment only gives people the right to refuse to give evidence that is testimonial

in nature, such as answering questions on the witness stand. Activities like giving blood and performing field sobriety tests are considered nontestimonial, and there is thus no constitutional right to refuse them. And evidence that a defendant refused the test can be admitted against the defendant in court as evidence of a guilty state of mind.

Sometimes a Sound Defense ­Strategy Dictates Against Taking the Test Almost always, if a driver has never before been convicted of DUI, it makes sense to take the test, even if the defendant is drunk. This is because the penalty for refusal is usually as or more severe than the DUI offense itself. However, for second or subsequent offenses, the decision is not quite so simple. Sometimes, the penalty for a second offense may be so severe that it makes tactical sense to refuse the test— thereby possibly depriving police of the evidence they need to obtain a conviction. As one former public defender confessed, “When arrestees would call me up in the middle of the night to ask whether they should take the BAC test, I had pretty much of a standard routine. I’d first ask if they had in fact been drinking. They’d invariably answer, yeah, but just a couple. I’d then ask if they had ever been busted for DUI before. If not, I told them to take the test. But if they had a prior, I’d tell them to refuse the test. It was the best legal advice I could give under the circumstances.”

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Case Example: George Kramer is arrested on suspicion of drunk driving. When approached by Officer Elaine Costanza, Kramer shows Officer Costanza his driver’s license and politely answers her questions about where he was coming from and where he is heading. When she asks him to submit to a breathalyzer to test his blood alcohol level, however, he flatly refuses. Question: What consequences will Kramer’s refusal have? Answer: If the state has an implied consent law, Kramer will lose his driver’s license for refusing the blood alcohol test. More important, however, if Kramer is ultimately charged with DUI and if the case were to go to trial, a jury might infer guilt from Kramer’s refusal.

9. Can I choose which blood alcohol test I want to take? Under the typical implied consent law, drivers are, in most circumstances, allowed to choose whether to take a blood, breath, or urine test. (In many states, police officers must advise drivers that they have such a choice.) There are differing thoughts on which test a driver should take if given the choice. For example, many in the scientific community have found urine tests to be the most unreliable of the tests, and therefore the most susceptible to challenge in court. The blood test is generally considered the most accurate of the tests and should therefore be preferred by people who are convinced they are under the legal limit.

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10. Is there anything I can do to ­protect myself if I am asked to take a field sobriety test (FST)? Yes. Just because a driver may not refuse to take a test does not mean that there aren’t steps the driver can take to help his situation. A driver asked to stand on one foot or walk a straight line should pay attention to any road conditions such as a soft shoulder or incline that make performing such tests particularly difficult. If any such conditions exist, a driver charged with DUI should report them as soon as possible to his lawyer. They may later be used to invalidate the tests. People wearing tight shoes or heels may want to ask the police for permission to remove their shoes before trying to stand on one foot or walk a straight line. Drivers suspected of DUI should never, though, reach down to remove their shoes—or make any other movements for that matter, especially with their hands—without first asking permission. Such movements may be interpreted by police as an attempt to grab a weapon.

The Old Backwards Alphabet Trick! Here is a warning for those asked to recite the alphabet backwards. Many people cannot say the alphabet backwards when they are sober. And police officers have been known to use this as a trick to get people to blurt out, “I can’t even do that sober,” thereby admitting they are in fact drunk.

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11. What type of evidence is used in a typical DUI trial? Typically, arresting police officers testify in DUI cases. They will answer the prosecutors’ questions about symptoms they may have noticed, such as a defendant’s driving pattern, bloodshot eyes, and the smell of alcoholic beverages on the breath. Prosecutors may also introduce documents to prove their case, such as photographs of the scene or people involved, and scientific evidence such as doctor’s reports, lab analyses, and blood, breath, or urine test results. The police or arrest report and the officer’s notes, while they may not be introduced as evidence in the case, may nonetheless be used to “refresh the officer’s recollection” if the officer forgets something in the report. (More on admitting evidence and refreshing recollection in Chapter 18.)

12. Are there some particular things I should do or not do if I’m i­nvolved in a DUI-related accident? Other than calling for emergency medical assistance (for anyone who is hurt) or filing a report on the accident as may be required by state law, defendants involved in DUIrelated accidents should avoid making any oral or written statements to: • Police officers. As discussed more thoroughly in Chapter 1, suspects do not have to and almost always should not talk to the police; or • Witnesses or victims. Even statements like, “I’m sorry,” can come back to haunt a defendant, because in court they can sound like admissions of wrongdoing.

It may be helpful to get names, addresses, and phone numbers of potential witnesses, especially for drivers who feel they were not at fault, since that information may not be in the police report. Also, as soon as possible after the accident, defendants should write down their version of what happened and note the date and time of the writing (perhaps also mailing a copy of the statement to themselves in order to retain a postmark with the date on it). At the top of any such statement, defendants should write “Confidential: Attorney-Client Privileged,” and they should not show the document to anyone except their attorney (assuming they use one).

13. What are my chances in court if I decide to fight a DUI charge? Not surprisingly, it depends on a lot of factors. In reality, defendants whose blood alcohol tested clearly above the legal limit seldom win at trial, especially if they also failed the field sobriety tests. Where there is no blood test, or where the test results are at or below the limit, there is a much greater chance of successfully fighting the charges. Though many prosecutors’ offices are tough on DUI cases these days, skilled defense lawyers can sometimes get an acquittal by undermining the prosecutor’s case. For instance, some defense lawyers routinely request maintenance and accuracy records for breathalyzer machines, and may mount a successful defense based on a machine’s failure to be properly serviced or calibrated.

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14. What sentences are typically handed down for violating DUI laws? DUI sentences vary greatly depending on factors such as whether it’s a first-time or repeat offense, and whether or not anyone was injured. But, as with most crimes, the typical sentence includes a fine and perhaps a few days of jail time. Convicted defendants may also suffer other consequences. For instance, they may: • lose their driver’s license, at least temporarily; • have to submit to an alcohol- or drugrelated treatment program; and • see their car insurance rates climb astronomically. Additionally, there is a growing movement toward what is known as alternative sentencing. Some of the newer punishments that have been given in DUI cases require that convicted drunk drivers: • have a breath test device (called a certified ignition interlock device) installed in their cars—at their own expense—which prevents the car from being started if alcohol is detected; • display a bumper sticker on their car that states that they’ve been convicted of a DUI; • carry a restricted driver’s license allowing only trips to and from work, for example; and

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• perform community service such as lecturing high school or college students, telling them about the arrest experience and urging them not to drive drunk. (For more on sentencing, see Chapter 22.)

15. What type of sentence am I facing if I have a previous DUI conviction on my record? Repeat offenders are routinely sentenced more severely than first offenders. The following chart, based on possible sentences for drunk driving in California (California Vehicle Code § 23152), shows how states can raise the punishment ante for repeat ­offenders.

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Possible Sentences for Drunk Driving in California (California Vehicle Code § 23152) First offense Second offense Third offense Fourth offense (or no prior (within 7 (within 7 years): (within 7 years; offense within years): can be filed as 7 years): a felony): 3–5 years 3–5 years 3–5 years 3–5 years of probation of probation of probation of probation $390–$1,000 fine $390–$1,000 fine Mandatory enrollment in alcohol treatment program; and either 48 hours to 6 months in jail, or 90-day driver’s license restriction allowing offender to drive to work and the treatment program

$390–$1,000 fine

$390–$1,000 fine

48 hours to 1 year 18-month treatment 18-month in jail, 18–30-month program if offender treatment program treatment program, hasn’t completed one if offender hasn’t and license restriction completed one allowing offender to 4 months to 1 year drive to work and the jail time; and 3-year 6 months to 1 treatment program revocation of year in jail; and only for the length of driver’s license 4-year revocation the program; or 10 of driver’s license days to 1 year in jail and an 18-month license suspension

16. What kind of lawyer should I get to fight a DUI charge? First off, defendants should always try to hire a lawyer who practices criminal law as opposed to civil law (noncriminal, such as divorce and contract cases). (See Chapter 7 on criminal defense lawyers.) Second, DUI cases often involve unique considerations. Even a criminal lawyer who

specializes in something other than DUIs may not be as effective in representing a defendant’s interests in a DUI charge as one who concentrates on this particular type of case. For example, the top-notch defense lawyer who has gotten five people acquitted of murder charges may be the best in the business, but may not be familiar with the latest research on breathalyzers or blood or urine testing for alcohol.

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Sometimes an Attorney Can’t Help If a first-time DUI defendant is clearly guilty and the state can prove this by a high blood alcohol test and/or field sobriety tests, the defendant may be better off representing himself and pleading guilty than paying a lawyer to accomplish pretty much the same result. The fact is, because of political pressures and heightened awareness of the serious harm that DUI can cause, many DAs refuse to plea bargain DUI cases, and many judges impose a “standard” sentence on first-time offenders, whether or not they are represented by an attorney. Before deciding whether to self-represent or get a lawyer, a DUI defendant would be wise to talk to a lawyer (at least for an hour or so) about how DUI cases are handled in that court and locality.

17. I was arrested, and my ­ arraignment is coming up. I still haven’t found a lawyer. What should I do? At the arraignment, a defendant will be called on to plead (typically) guilty or not guilty. Defendants who do not yet have counsel may act as their own counsel and enter a not guilty plea. However, there are risks to doing this. (See Chapter 10 for more on arraignments.)

18. Where can I find out more about DUI laws in my state? In addition to consulting a lawyer, one may find information about DUI laws from: • a state driving/automobile agency (for instance the Department of Motor

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Vehicles or DMV—in some states called the Department of Public Safety); • a traffic school; • a police department; and • traffic law books, vehicle and penal codes, and other resources typically found in law libraries. (See Chapter 27 on legal research for more information.)

Section II: DUI Case Examples What follows below are case examples involving DUIs that take the defendants from arrest through conviction, in both cases by way of plea bargaining (since that is how the overwhelming majority of these cases end).

Please understand that any particular DUI case may be handled differently depending on: • the state; • the court; • the attorneys; and • the facts.

a. The facts leading up to the arrest of Julian Daniels and Shelly Rogers for DUI On December 1, Shelly Rogers headed home after a party at Keith’s Tavern. Officer Wood had noticed her weaving in and out of her lane and following closely behind the car in front of her. Officer Wood put on the flashing red light, and Rogers pulled over. That same evening, across town, as

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Julian Daniels drove home from Mick’s Pub, he hit a tree in a residential neighborhood. A neighbor heard the crash and phoned the police. Officer Charles drove up a few minutes later, lights flashing. Daniels was standing in front of his car, surveying the damage, when Officer Charles approached him. About the same time as Daniels hit the tree, Rogers rolled down her window after pulling over. She put her hands on the steering wheel and waited for the police officer to approach. When the officer approached the car, the officer smelled the characteristic odor of an alcoholic beverage on Rogers’s breath. The officer asked for Rogers’s driver’s license, then asked her to step out of the car. Rogers politely complied with both requests. Question: Does the officer have probable cause to arrest Rogers?

Answer: Yes. (More on arrests in Chapter 3.) Question: Can the officer also frisk Rogers? Answer: Yes. (More on police frisking and searching in Chapter 2.)

After frisking Rogers, the officer asked where she’d come from and if she’d been drinking. Rogers politely replied that she’d like to answer but felt that she should not say anything before consulting a lawyer. Question: Did Rogers do the right thing by asking to speak with her lawyer? Answer: Yes. (More on not talking to the police in Chapter 1.)

The officer then told Rogers she would need to take a couple of tests and that she didn’t have a right to talk to her lawyer before taking them. The officer asked Rogers to recite the alphabet, to stand on one leg, and to touch her finger to her nose. Rogers

was successfully able to recite the alphabet but stumbled somewhat when she tried standing on one foot. The officer then shined a flashlight in Rogers’s eyes and asked her to look left and right. The officer then gave Rogers a breath test with a PBA (portable breath analyzer). Rogers’s BAC (blood alcohol content) measured .11 (beyond the legal limit of .08 for that state), so she was arrested for DUI (driving under the influence), handcuffed, and put in the back of the squad car. Nothing further was said by either Rogers or the police officer. Question: Did the officer err in not giving Rogers her Miranda warnings after arresting her? Answer: No, the officer didn’t ask Rogers any questions, so he wasn’t required to warn her. (More on Miranda warnings in Chapter 1.)

Meanwhile, across town, Daniels was given the same field sobriety tests. Though Daniels passed all three, the officer still suspected DUI because Daniels had red, watery eyes and had hit a tree. Consequently, the officer arrested Daniels and brought him to the station for a blood test. Daniels’s blood alcohol content measured 0.09% (just above the legal limit of 0.08%).

b. The booking of Daniels and Rogers Both Daniels and Rogers were brought to the Main County Station, and both were booked upon arrival. They were photographed, their possessions except for clothes and wristwatches were taken and inventoried (see below), and they were put into jail cells to wait.

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Question: Was it right to take their possessions as part of the booking process? Answer: Yes. (More on booking in Chapter 5.)

Their respective booking records read in part as follows: Suspect: Julian Daniels Inventory: Brown leather wallet, containing identification, photos, and $25; 4-door white Toyota Corolla (license ______) impounded. Suspect: Shelly Rogers Inventory: Black leather purse containing wallet (with credit card and driver’s license, hair brush, nail file, and $62); red Corvette (license _________) impounded.

c. Preparation of the police reports Later that night, the arresting officers completed their paperwork documenting the arrests, including arrest and investigation reports, a statement for the Department of Motor Vehicles, and additional pages with notes and comments. Question: Do police typically make written arrest reports in cases like this?

Answer: Yes. (See Chapter 14 for more on arrest reports.)

d. The preparation of the criminal complaint The officers’ reports were delivered to the district attorney’s intake desk at the courthouse. Both defendants’ reports ended up on the desk of D.A. Ira Davidson. Davidson glanced at the police reports and filled in the appropriate blanks on the

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criminal complaint forms as he had done with nearly 150 criminal complaints that day. Question: Is it unusual for a D.A. to be so quick about filing a complaint?

Answer: No, especially in large urban areas. (More on charging in Chapter 6.)

e. Phone calls and bail A couple of hours later, after handling other matters and running computer checks to see if the suspects had criminal records, a police officer went to their respective cells and told Daniels that his bail had been set at $500 and Rogers that hers had been set at $3,500 (Rogers, it turned out, had been convicted of a DUI the year before). Question: Do police usually set bail? Answer: Sometimes; other times judges set bail amounts. (See Chapter 5 for more on bail.)

Both were allowed to make phone calls. Daniels reached his mother, who came down and paid the $500. He left on bail and was given a summons to appear in court for an arraignment the following week. Rogers wasn’t as successful. She was too embarrassed to call her parents, and none of the friends she phoned were home, so she spent the night in jail. (More on bail in Chapter 5.)

f. Rogers goes to court for her arraignment The next morning, Rogers was taken to court for an arraignment. Question: Are people usually arraigned that quickly?

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Answer: If they are in custody, yes. They usually have to be arraigned within at most 48 hours after arrest, excluding weekends and holidays. (More on arraignment in Chapter 10.) Rogers spent two hours in the courthouse lockup waiting for Judge Diana Benjamin. Question: Where is the lockup? Answer: Usually in an area of the courthouse that is segregated from the courtrooms and public areas, for example, in the basement or on a separate floor. (See Chapter 9 for a tour of a typical courthouse and courtroom.)

When the case was finally called, a bailiff led Rogers into the courtroom. Still handcuffed, Rogers stood before the judge and waited. Judge Benjamin was looking over some papers and talking with her clerk. Rogers stood waiting. She heard the judge ask her clerk for another cup of coffee, then look down and say, “Rogers?” “That’s me.” Question: Should Rogers have said, “That’s me, your Honor?” Answer: Adding “your Honor” would have made Rogers’s reply more respectful and certainly couldn’t have hurt. (See Chapter 10 for tips on how to speak to a judge.) “Do you have counsel?” Question: Does Rogers have the right to counsel at an arraignment? Answer: Yes. (See Chapter 10 on arraignments.) “What?” “Do you have a lawyer?” “No, your Honor.” “Do you want a lawyer?” “Yeah. I guess so.”

“Have you been given a chance to call a lawyer?” “They let me make a phone call last night, but no one was home. Umm. But I don’t think I have the money to hire a lawyer.” Question: Will Rogers get a public defender if she can’t afford a lawyer? Answer: Yes, or some other court-appointed attorney. (See Chapter 7 on the right to appointed counsel for those who cannot afford a private lawyer.) “Let’s see. You can talk to the public defender if you want, and we’ll see you back here this afternoon. Or you can plead now if you intend to plead guilty.” Question: Should Rogers make a plea bargain? Answer: It depends on a number of details. Here, Rogers hasn’t even yet met with a lawyer, though, so she should certainly do that before even considering a plea bargain. (More on plea bargains in Chapter 20.) “Yes, I’d like a public defender.”

The judge called to her clerk, “Get somebody from the P.D.’s office down here.” And to Shelly the judge said, “Okay, we’ll get you a lawyer and see you back here later.”

g. Rogers gets a public defender The bailiff returned her to the lockup. A few hours later, a young man approached her cell. “Shelly Rogers?” “Yes” she said. “I’m Andrew Duncan. I’m from the public defender’s office. How are you?” “Tired, bored. Sick of this place.” “Well, unfortunately, I don’t think I can

Chapter 24: How the Criminal Justice System Works

get you out today. I talked to the D.A. The D.A. said for a second offense, you gotta do 48 hours—no way around it. But if you plead guilty this afternoon, then you can get out tomorrow with probation. You’ll have to pay a fine and do another alcohol program. I see you did a three-month one last time you were arrested. But that’s it.”

Question: Would Rogers be sentenced to jail time if she went to trial and lost? Answer: Yes. If that’s the mandatory state law for a second DUI, she would get the time either way—and possibly even more if she went to trial and lost. (See Chapter 20 on plea bargaining, and Chapter 22 on sentencing.)

“Yeah. Listen, what if I want to fight it?” “Well. You could fight it, but it doesn’t look good.” He read from the reports, “Blood alcohol—.11, failed field sobriety tests …” “I did the alphabet, didn’t I?” Shelly interrupted. “Um. Yeah, but you couldn’t stand on one foot, your eyes were bloodshot, they smelled some type of alcoholic beverage on your breath. Look, we can talk more in a little bit. I have to go back into court now to meet another client. Your case will be called after lunch. I’ll come talk to you again before then. In the meantime, think it over. I’ll tell you this much, if you go to trial and lose, on a second DUI a judge might give you a lot more than 48 hours in jail. You can get up to a year in jail, plus the probation, plus fines and an alcohol program. You might want to cut your losses.”

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Andrew Duncan left Shelly Rogers and ran back upstairs to court to meet with another client.

h. Rogers considers a plea bargain suggested by her public defender After lunch, Shelly Rogers was hauled back into court. Standing before the judge, still handcuffed, Shelly wondered what was going on. Duncan hadn’t been back to see her. Duncan ran in, put his briefcase down, pulled out a file folder and leaned in to whisper to Shelly. “I was in another courtroom on another case and couldn’t come talk to you. Sorry. I want you to know, though, I spoke to the D.A. If you do the 18-month alcohol rehab program and plead guilty now, they’ll let you out tomorrow—as soon as the 48 hours are done. You’ll be on probation for three years. And you’ll do some community service instead of the fines; they do that where people can’t afford to pay them. Okay?” “Yeah. I guess that’s the best I can do.” “Well, you do risk a lot more if you fight and lose.” “Okay.”

i. The court takes Rogers’s guilty plea under the plea bargain “All right, just say yes to all the questions the judge asks you and we’ll be out of here in three minutes,” Andrew tells his client. “All right people, we’re back on the record, let’s go,” the judge called as she sat down at the bench. “What’s next?” she asked her clerk.

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“Rogers is back—continued from this morning.” “Okay, Ms. Rogers. Let’s see, you now have counsel,” said the judge. “Yes.” “And how do you now plead to the charges of second offense driving under the influence?” “Say ‘guilty,’” Andrew Duncan whispered to Rogers. “Guilty,” Rogers said. “Counsel, have you reached a settlement?” D.A.: “Yes, your Honor; 18-month program, three years probation, $500 fine which we’ll convert to community service hours (because the defendant is indigent), plus 48 hours—if she pleads guilty now.” “Ms. Rogers, do you know that by pleading guilty you lose the right to a jury trial?” “Yes.” “Do you give up that right?” “Yes.” “Do you understand what giving up that right means?” “Yes.” “Do you know that you are waiving the right to cross-examine your accusers?” “Yes.” “Do you know that you are waiving your privilege against self-incrimination?” Question: Is that the Fifth Amendment? Answer: Yes. “Yes.” “Did anyone force you into accepting this settlement?” “No.” “Are you pleading guilty because you in fact were driving under the influence?”

“Yes.”

Question: If Shelly Rogers wants to take the plea bargain, why does the judge need to ask her so many questions? Answer: Because a judge is required by law to ensure that defendants understand what rights they are giving up by pleading guilty and that they are pleading guilty voluntarily. (See Chapter 20 on plea bargaining.)

j. The judge sentences Rogers as ­prescribed in the plea bargain “Ms. Rogers, you are hereby sentenced to be incarcerated for a term of 48 hours. You shall enroll by no later than 14 days from today in a court-approved 18-month alcohol treatment program. You shall be on probation for a period of three years, and you’ll have to do 50 hours of community service. Do you understand?” Question: Will Rogers have to report to a probation officer? Answer: Yes. (More on probation, community service, and other punishments in Chapter 22, on sentencing.) “Yes, your Honor.” “Bailiff, take her back to lockup.” To Shelly the judge said, “You may go home tomorrow. Counsel will explain the paperwork you have to complete. I don’t want to see you back here, Ms. Rogers. I hope you take the alcohol program more seriously this time around.”

When Shelly was released the next day, she was given a packet of information from the public defender’s office. It included the name and phone number of her probation officer and a list of the court-approved treatment programs. (More on probation in Chapter 22.)

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k. Free on bail, Daniels meets his public defender before the arraignment and discusses a possible plea bargain Daniels, meanwhile, had been free on bail. A week after Shelly Rogers was sentenced, Andrew Duncan, the same public defender, met with Julian Daniels in the hallway outside the courtroom just before Daniels’s arraignment. “Hi. Daniels, right?” “Yes.” “My name is Andrew Duncan, I’m your lawyer. I spoke with you on the phone a few days ago?” “Yes. Yes, thank you.” “You’ve never been arrested before, right?” “No, never.” “What happened? Says here you hit a tree?” “Yeah. I was looking down to get a new tape, and next thing I knew I’d plowed into this tree.” “Okay, you were .09 …. I think I can get you a decent deal, probably three years probation, three-month alcohol program, and some community service if you plead today.” “Look. I don’t need an alcohol program. I had a couple of beers with my girlfriend. That’s it. I’m not an alcoholic. What’s community service? Is that picking up trash like those guys in orange vests I see out on the roadway?” “Well, that’s one kind of community service, yes. But, we could arrange for you to work in a library or school, or some volunteer program like that.” “How many hours of community service are we talking?” “They said 200 hours.”

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“I can’t do that. I’m in school full-time and I have a job. Man, I don’t want this on my record; I’m applying to grad schools. You know that cop didn’t even read me my rights.” “Did the cop question you?” “Not really. I mean he asked if could say the alphabet and touch my nose, and told me to stand on one foot. Then he put me in the car.” “Well, technically, they don’t have to read you your rights unless they question you.” “Oh?” “Yup. Listen, your girlfriend was with you the whole time at the bar?” “Yeah.” “She can testify that you only had, how many beers?” “Two. Two beers. She was with me the whole time. That’s all I had.” “And you’re in college where?” “State University. I’m graduating this spring.” “Okay, let me talk to the D.A. There’s pretty much no way to get around doing an alcohol program on a DUI—even a first-timer. Our only chance is if she reduces the charge to reckless driving. Come into the courtroom with me, but you sit in the back and wait. Your case will be called in the next hour or two.” “Do your best, Mr. Duncan,” Daniels called. “Thanks.” “Sure.”

l. Daniels’s lawyer proposes a plea bargain to the prosecutor In the courtroom, Duncan found the assistant D.A. handling the case, Colleen O’Larky, sitting toward the front in the audience section of the courtroom waiting

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for her next case. He slid in to the seat next to her. “Larky,” Duncan whispered. “Yeah,” she replied quietly, putting a folder in front of her mouth so the judge wouldn’t see she was talking. “I gotta talk to you about the Daniels case, set for this afternoon. Your case.” “I’m listening.” “Have you looked at it? .09—just over the limit, no priors, good kid—finishing college this spring, wants to go to grad school. What can we do here?” “You know my boss. No forgiveness on DUIs. He spoke at a MADD (Mothers Against Drunk Driving) conference last week. My hands are tied.” “Look, make an exception here. He’s a nice kid. He was just looking down to change a tape and hit a tree. Dumb luck. No one was hurt. Knock it down to reckless. It’s bad enough this is going to go on his record—he’s clean. He passed all the FSTs, says right here on the police report.” Just then the judge called “State v. Molly Patricks.” The D.A. jumped up and whispered, “That’s my case, Duncan. Hang on. I’ll think about it and get back to you.” “I’m waiting right here,” Duncan replied, and the D.A. went up before the judge to handle a different case. Ten minutes later she

was back. “All right, Duncan. But only for you. Reckless. Two years probation, 150 hours community service—best offer. And he pleads today, or no deal.” “Thanks, Larky. I’ll talk to him. Sounds good.”

Andrew Duncan quietly slipped out and went to the back of the courtroom to find Daniels. He told Daniels the deal the prosecutor had offered, and Daniels agreed to plead.

m. Daniels pleads no contest Daniels’s case was called some time later. And after asking Daniels the same questions Judge Benjamin asked Shelly Rogers earlier (and getting all the same answers from Daniels), the judge accepted Daniels’s plea of no contest. Question: What is a no contest plea? Answer: In most respects the same as a guilty plea, but it likely cannot be used as an admission of guilt against Daniels in a later civil suit should the owner of the tree he hit decide to sue for property damage. (More on no contest pleas in Chapter 20.) Daniels was convicted of reckless driving and sentenced as agreed. ■

Chapter 25

Juvenile Courts and Procedures Section I: A Brief History of U.S. Juvenile Courts……………………………………………………521 1. When were the first juvenile courts established in the United States?…………………521 2. How were children dealt with before juvenile courts were established?……………..521 3. What are the goals of juvenile courts?…………………………………………………………..522 Section II: Juvenile Court Jurisdiction……………………………………………………………………522 4. Do juvenile courts only have jurisdiction over cases in which juveniles are accused of committing crimes?…………………………………………………523 5. Do the same procedures apply to dependency, status offense, and juvenile delinquency cases?………………………………………………………………….523 Section III: Deciding Whether to File Charges………………………………………………………..525 6. How do most minors come to the attention of the police?……………………………….525 7. Does every minor who is stopped by the police end up in juvenile court?………….525 8. What happens once a case has been referred to juvenile court?………………………..525 9. What factors do intake officers normally consider when deciding whether to file formal charges?……………………………………………………………………526 10. Does the filing of a formal petition mean that the case has to go to trial or end by plea bargain?……………………………………………………………………….527 Section IV: The Right to Counsel and Other Constitutional Rights…………………………….527 11. Do minors have the same constitutional rights as adults?…………………………………527 12. Do the police need probable cause to search and arrest a minor?……………………..528 13. Do minors taken into custody have a right to bail?………………………………………….528 14. Are minors ever locked up with adult offenders?…………………………………………….529 15. Do minors have the right to legal representation in juvenile delinquency cases?……………………………………………………………………………………529 16. Does a minor who cannot afford a lawyer have the right to a court-appointed attorney?…………………………………………………………………………..529 17. Can minors who are locked up make a phone call for help?…………………………….529 18. How and when are lawyers appointed for minors?…………………………………………530 19. Will a minor who comes from a wealthy family still be eligible for an appointed attorney?………………………………………………………………………….530

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20. Are parents allowed to participate in meetings between their child and the child’s lawyer?………………………………………………………………………………531 21. Other than the right to counsel, what other constitutional rights do juveniles have?…………………………………………………………………………………….531 22. Is there a right to a jury trial in juvenile courts?………………………………………………531 23. What is the burden of proof in juvenile cases?……………………………………………….531 Section V: Trying Juveniles as Adults…………………………………………………………………….532 24. What does it mean to be tried as an adult?…………………………………………………….532 25. Why might a case be transferred from juvenile to adult court?………………………….532 26. At what age can a minor’s case be transferred to adult court and the minor tried as an adult?……………………………………………………………………………..532 27. What procedure does a juvenile court judge follow when deciding whether to transfer a case to adult court?………………………………………………………532 28. What are automatic transfer laws?……………………………………………………………….533 29. What are reverse transfer hearings?………………………………………………………………533 30. What arguments can a minor’s lawyer use to try to persuade a judge not to transfer a juvenile case to adult court?…………………………………………533 31. When is it normally in a minor’s best interests to be tried as a juvenile rather than as an adult?………………………………………………………………………………534 32. Can it ever be in a minor’s best interests to be tried as an adult rather than as a juvenile?…………………………………………………………………………………….535 Section VI: Sentencing (Disposition) Options…………………………………………………………535 33. Can juvenile court judges incarcerate minors?……………………………………………….535 34. Other than confinement, what other dispositions are common in juvenile court?………………………………………………………………………………………536 35. What are blended sentences?………………………………………………………………………539 36. How do juvenile court judges decide what disposition to give?………………………..539 37. Can a minor’s juvenile court record affect a later sentence in adult criminal court?………………………………………………………………………………………….539 38. Can a minor challenge or alter a juvenile court judge’s disposition order?………….540 Section VII: Sealing Juvenile Court Records……………………………………………………………540 39. What is a juvenile court record?………………………………………………………………….540 40. What does it mean to seal a juvenile court record?…………………………………………540 41. Are juvenile court records sealed automatically when a person becomes an adult?…………………………………………………………………………………….541 42. Is it necessary to hire an attorney to have a record sealed?……………………………….541 43. When is a juvenile offender eligible to seal a juvenile court record?………………….541 44. Can sealed records ever come back to haunt a juvenile offender?……………………..542

Chapter 25: Juvenile Courts and Procedures

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his chapter provides an overview of the juvenile justice process. Juvenile justice is an umbrella term for the special procedures set up by every state to deal with young people whose cases qualify for handling in juvenile court. Juvenile courts handle most of the cases in which young people (usually called “juveniles” or “minors”) are accused of committing crimes. Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about getting tough on crime, the conflicting opinions on how to deal with minors accused of crimes are greater still. The goal of this chapter is to help anyone involved with juvenile courts to understand their general policies and procedures, particularly where these differ from those found in adult criminal courts. Hopefully, the chapter will make juvenile court seem a little less foreign, a little less intimidating, a little easier to understand and deal with.

Section I: A Brief History of U.S. Juvenile Courts This section sketches the background of today’s juvenile justice system.

1. When were the first juvenile courts established in the United States? The first juvenile court was established in 1899. However, it wasn’t until 1945 that all states had juvenile courts.

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2. How were children dealt with before juvenile courts were established? In the mostly rural society of the nineteenth century, parents, churches, and communities punished children who committed crimes. Children were typically disciplined by force, sometimes brutally. The urbanization that followed the industrial revolution in the last half of the nineteenth century posed particular problems for children. Many were subject to harsh conditions, including extensive poverty and child labor. At that time, children who got into trouble (whether by committing a crime or by being the victims of abuse or neglect) were often put to work or sent away to relatives. So-called “reform schools,” the precursors of modern juvenile halls, were also set up. The ostensible purpose of these schools was to change or reform children, in part by giving them skills and training. In fact, these facilities were often little more than warehouse-type jails, some with deplorable conditions, where most of the learning that occurred was how to become a better criminal. Around the turn of the twentieth century, many social leaders came to believe that reform schools were not working. They also began to understand children not simply as mini-adults, but as people with special needs who should be treated differently than adults. Consequently, the movement for a separate juvenile justice system began.

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Too Young to Punish? Based on principles developed by English common law, most states consider children under age seven to be legally incapable of forming the “mens rea” (guilty state of mind; see Chapter 12) necessary to be morally to blame and therefore subject to criminal punishment. As a result, minors under age seven are usually excused because of their age if they commit acts that would be crimes if committed by adults. Instead, the parents of these children may have to pay restitution (compensation) to the victims. In addition, a court may determine that a child’s parents are unfit, remove the child from the parents’ custody, and place the child with a relative, foster family, or treatment facility. Children between the ages of seven and 14 often occupy a middle ground. Using what legal rules often refer to as a rebuttable presumption, minors in this age range are often presumed to be incapable of forming a guilty mind. However, if a prosecutor can show that a particular child in this age range is capable of forming and did form a guilty mind, the child can be criminally punished. Once minors reach age 14 and above, most states regard them as fully capable of forming a guilty mind. Therefore, minors older than 14 are usually held accountable for the crimes they commit, either in juvenile or adult court.

3. What are the goals of juvenile courts? As with adults, juvenile court goals are a mix of rehabilitation, punishment, and community safety. Juvenile courts

have traditionally considered children less dangerous and more amenable to rehabilitation than adults. As a result, minors who commit crimes often receive counseling and stay at home in lieu of going to jail. However, citing statistics suggesting that minors increasingly commit more and worse crimes at younger ages, advocates of punishment and community safety want juvenile courts to get young criminals off the streets.

Juvenile Court Paternalism The roots of paternalism are deep in the juvenile justice system. In part they stem from an English concept called parens patriae (Latin for “parent of the country”). Under this concept, minors really belong to the government; parents are temporary custodians. Juvenile and family courts, as the arm of the government, are therefore ultimately responsible for minors. Programs in the juvenile justice system often reflect a paternalistic attitude towards minors. For example, judges may follow “tough love” or “Scared Straight” programs out of the belief that juveniles benefit from a strict but caring approach.

Section II: Juvenile Court Jurisdiction This section briefly looks at juvenile court “jurisdiction,” which refers to a juvenile court’s power to hear cases.

Chapter 25: Juvenile Courts and Procedures

4. Do juvenile courts only have ­jurisdiction over cases in which juveniles are accused of ­committing crimes? No. In addition to having jurisdiction over cases involving crimes committed by minors (often called “juvenile delinquency” cases), juvenile courts in most states also have jurisdiction over: • Cases involving minors who are allegedly abused or neglected by their parents or guardians. These are often called “juvenile dependency” cases. Abused or neglected minors may be removed from parental homes and placed with relatives or foster parents. At a minimum, parents are often ordered to undergo counseling as a condition of keeping or regaining custody. A juvenile court may also declare parents permanently unfit and approve a minor’s adoption. • Cases involving minors who commit status offenses. A status offense is a type of violation that only a juvenile can commit. For example, a 14-year-old who skips school (is truant) for no valid reason commits a status offense if the law requires all children under the age of 16 to attend school. An adult could not violate this law.

5. Do the same procedures apply to dependency, status offense, and juvenile delinquency cases? No. Even though juvenile courts may have jurisdiction over all three types of cases, different procedures typically apply to each.

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This chapter focuses on juvenile delinquency cases, since they are the juvenile court counterpart of adult criminal proceedings. However, keep in mind the following points about status offenses: • Juvenile court personnel may use the term juvenile delinquency as an umbrella term that covers both juvenile crimes and status offenses; • Minors who commit status offenses can sometimes end up in custody in juvenile hall. For example, if a minor violates a judge’s order to attend school, the judge may send the minor to juvenile hall for disobeying the court order; and • Minors charged with status offenses do not have a constitutional right to counsel. Some states do, however, provide attorneys to minors charged with status offenses. Case Example: Officer Steve Roberts sees Jack Aranda, who appears to be a teenage boy, shopping at the local mall on a Wednesday morning. When Officer Roberts stops Jack and asks him how old he is, Jack says, “I’m 15.” Jack then tells Officer Roberts, “I wanted to shop before the mall gets crowded.” Officer Roberts then takes Jack into custody. Question: Did Officer Roberts properly arrest Jack? Answer: Yes. Laws typically require minors to be in school on weekdays. Because Jack appeared to be of school age, the officer had a right to question him. When Jack’s responses indicated that he was truant, the officer had a right to arrest him. See Section III for what the officer might do with Jack.

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Juvenile Justice Lingo Juvenile courts tend to have their own jargon, in part to portray a gentler image than adult criminal courts. Some of the unique terms that you may encounter if you become involved in juvenile court proceedings are as follows:

Fact-finding hearing: Along with

Adjudication: A juvenile court trial, similar

Involved: The juvenile court equivalent of

to an adult trial.

Admission of Petition: The juvenile court counterpart to a guilty plea.

Camp: A locked facility for juvenile offenders. Camps often house minors who will be locked up for many weeks or months, while juvenile halls tend to be temporary holding facilities. States may have various types of camps differing in degrees of security, rigidity, and facilities. Many camps have school facilities.

Custody order: An arrest warrant. Dependency court: A branch of the juvenile court that hears cases involving minors who have allegedly been neglected or abused by parents or guardians.

Detention order: An order that a minor be placed in custody.

Disposition: A juvenile court sentence or other final order, which juvenile court regulars often shorten to “dispo.”

Dispositional hearing: A sentencing h ­ earing.

adjudication, a juvenile court term for a trial.

Infant: A minor, in most states a person under the age of 18. (Few teenagers appreciate being referred to as infants!) guilty.

Juvenile Hall: A jail (or temporary holding facility) for minors.

Petition: The juvenile court equivalent of a criminal complaint, which charges a child with a violation.

Referee: A judicial officer, usually a lawyer appointed by a court’s presiding judge, who performs many of a judge’s functions but who has not been formally elected or appointed as a judge.

Respondent: A juvenile court defendant. Suitable placement: A court order removing a juvenile from the juvenile’s parental home and placing the juvenile into a foster home, a group home, a treatment facility, a camp, or some other type of placement.

Sustained (Not Sustained): The equivalent of a verdict, a juvenile court finding that the charge in a petition is (or is not) true.

Ward of the court: A minor who is under the jurisdiction of the juvenile court.

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Section III: Deciding Whether to File Charges This section summarizes the typical processes by which cases are either weeded out of or formally filed in juvenile courts.

6. How do most minors come to the attention of the police? Unlike adults, juvenile offenders often come to police attention through reports of parents and school officials. When the police decide to file formal charges against a suspect who is a minor, they normally refer the case to a prosecutor or probation officer attached to a juvenile court.

7. Does every minor who is stopped by the police end up in juvenile court? No; a variety of scenarios are possible. A police officer may: • Detain and warn the minor against further violations, and then let him go free. (In juvenile court and police lingo, the minor was “counselled and released”); • Detain and warn the minor against further violations, but hold him until his parent or guardian comes for him; • Place the minor in custody and refer the case to the juvenile court.

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8. What happens once a case has been referred to juvenile court? The following is an overview of how juvenile cases typically flow through the system: • A prosecutor or a juvenile court intake officer (often a probation officer) decides whether to: 1. dismiss the case; 2. handle the case informally; or 3. petition the case (file formal charges). In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. • A decision to proceed informally often results in the minor’s having to appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or afterschool classes, repay the victim for damaged property or pay a fine, perform community service work, or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, proceedings to remove her from the custody of parents or guardians may also be started. • If the decision is to proceed formally, the intake officer or prosecutor files a petition and the case is placed on the juvenile court’s calendar. (In large cities, juvenile courts may handle over 300 cases each day.)

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• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or waives (transfers) the case to adult criminal court. (See Section V, below, for more on transfers to adult court.) • If the case remains in juvenile court, the minor either enters into a plea arrangement or faces trial (often called an adjudication). • If, after trial, the juvenile court judge sustains the petition (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition). (See Section VI below.) • Postdisposition hearings may occur. For example, a judge’s disposition order may require a minor to appear in court periodically so that the judge can monitor the minor’s behavior.

9. What factors do intake officers normally consider when deciding whether to file formal charges? The official factors that an intake officer is likely to consider include: • The severity of the offense. A serious crime is more likely to result in the filing of a petition than a less serious crime; • The minor’s age. Petitions are more likely to be filed in cases involving older than younger children; • The minor’s past record. Formal charges are more likely when a minor has had previous juvenile court involvement;

• The strength of the evidence that a minor committed a crime; • The minor’s gender. Formal charges are more likely to be filed against boys than girls; • The minor’s social history. Petitions are more likely to be filed when children have a history of problems at home or at school; and • The parent’s or guardian’s apparent ability to control the minor. The greater the lack of parental control over the minor, the more likely the intake officer is to file a petition. In addition to these official reasons, the filing decisions of many intake officers cannot help but be swayed—off the record— by a number of subjective factors. These may include: • The minor’s attitude. Formal proceedings are less likely when a child shows remorse for a bad deed; • The minor’s manner of dress. If the minor dresses well, is groomed neatly, and is polite, intake personnel are more likely to handle the case informally than if the minor dresses sloppily or in a way that shows disrespect for the juvenile justice system or obvious gang involvement; • Whether the minor has family or community support; • Whether the minor has an attorney. Disposing of a case informally may be less likely when a child has a lawyer. (See Section IV for more on lawyer involvement in juvenile cases); and

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• Ethnicity and socioeconomic status. Statistics suggest (though few, if any, intake officers would admit, on or off the record) that the ethnicity and socioeconomic status of minors sometimes affects how aggressively their cases are handled.

10. Does the filing of a formal petition mean that the case has to go to trial or end by plea bargain? No. Juvenile court judges often informally divert cases. In other words, working with other community service agencies (schools, social services, and child welfare departments) a judge may retain jurisdiction over a case while the minor undergoes a recommended program. For example, the minor (and/or the minor’s parents) may have to participate in counseling. Or, the minor may have to pay restitution, repair damaged property, perform community service work, or attend special classes. If the minor fails to complete the recommended program, formal charges may be reinstated. (For information on diversion in adult cases, see Chapter 6.) Juveniles in some cities may also be able to participate in another form of diversion, called “teen court.” (See “A Sampling of Innovative Juvenile Justice Programs” in Section VI.)

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A Statistical Look at One Year in State Juvenile Courts In 2003, approximately 1.6 million juvenile delinquency cases were filed in the U.S., and of those, about 57% (928,849) were formally processed. About 36% of the formally-charged cases were for property offenses and about 12% involved drug offenses; around 64% of the formally charged juveniles were adjudicated delinquent, and about 63% of those were placed on probation. The information comes from a database maintained by the National Center for Juvenile Justice, which is a research division of the National Council of Juvenile and Family Court Judges. The database currently contains juvenile court statistics from 19852003 and is available at http://ojjdp.ncjrs. org/ojstabb/ezajcs.

Section IV: The Right to Counsel and Other ­Constitutional Rights This section demonstrates how in recent decades juvenile courts’ procedures have become less informal and more like adult criminal courts. However, important differences remain.

11. Do minors have the same ­constitutional rights as adults? No. Until the 1960s, juvenile courts offered few of the rights guaranteed to adult criminal defendants. Up until then, juvenile court judges dispensed justice pretty much as they

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saw fit. Outside criticism of their sometimes arbitrary approach was rare. Juvenile court proceedings were closed to the public. Parents could not and did not object. Defense lawyers were not often present, and minors had virtually no rights. Since the 1960s, the U.S. Supreme Court has issued several rulings that have afforded minors at least some of the rights enjoyed by adults.

12. Do the police need probable cause to search and arrest a ­minor? Yes. However, public officers in quasiparental relationships with minors (for example, school officials) do not need probable cause to justify the temporary detention and search of a minor. A reasonable suspicion that a child has committed a crime is all that many public officials need to detain and search the minor or the minor’s property, such as a school locker. (See Chapter 2 for more on constitutional protections against unreasonable searches and seizures.)

13. Do minors taken into custody have a right to bail? No. Minors do not have the bail option that most arrested adults have. (See Chapter 5 for more on bail.) Minors who are taken into custody by the police are usually either released to the custody of a parent or guardian, or detained (locked up) until they can be taken before a juvenile court judge for arraignment. (This period may be called “preadjudication detention.”) Unfortunately,

as is the case with some adults, a juvenile who is arrested on a Friday may have to remain in custody until the following Monday (or Tuesday if the Monday happens to be a holiday), when court is in session.

Advantages and Risks of ­Preadjudication Release Police officers and other intake officers are often willing to release arrested minors to their parents’ custody pending a court date. Preadjudication release is usually good for both minor and family. It gives the minor a chance to get cleaned up and prepare for the hearing, and perhaps consult with an attorney. Also, some studies have shown that detained minors consistently receive harsher dispositions. In some instances, parents may be justifiably reluctant to accept custody of their arrested children. Some state laws make parents liable in certain circumstances for their children’s acts of juvenile delinquency. (For example, parents of a minor who steals may have to make restitution to the victim.) Parents who fear that their child may commit further crimes, especially if they fear that the child is violent and beyond their control, may be hesitant to agree to preadjudication release. Parents in such situations should try to determine the extent of their potential liability and inquire (perhaps of a public defender or a private defense lawyer if resources permit) how they can keep their child safely detained with as little damage as possible to the child’s chances for receiving rehabilitative treatment.

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14. Are minors ever locked up with adult offenders?

17. Can minors who are locked up make a phone call for help?

Yes, despite the fact that laws in most states require that minors be kept in separate juvenile halls or jail facilities. Studies all across the country routinely show that minors are often jailed with adults. The reasons for this vary. Police officers sometimes mistake older minors for adults, and some minors lie to the police about their age. In other instances, juvenile facilities don’t exist, are overcrowded, or are located at an inconvenient distance.

Often, yes. Minors who are not quickly released from custody can exercise their right to counsel by politely requesting permission to make a phone call to secure legal representation. If the family situation allows, the minor should probably call a parent or guardian, who can in turn contact a lawyer. Otherwise, the minor may contact a lawyer directly or, if the minor and the minor’s family are without adequate funds, ask to speak with a public defender.

15. Do minors have the right to legal representation in juvenile ­delinquency cases? Yes. In In re Gault, (U.S. Sup. Ct. 1967), the Supreme Court said, “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.”

16. Does a minor who cannot afford a lawyer have the right to a courtappointed attorney? Yes. Minors who can’t afford a lawyer (which is almost always the case) are entitled to have one provided by the state. (More on court-appointed lawyers in Chapter 7.)

“I Won’t Talk Until You Call My Parents” Police officers generally give Miranda warnings to arrestees, both adults and juveniles. These warnings advise arrestees of their right to remain silent and consult with a lawyer. (See Chapter 1.) Minors arrested for serious crimes should never talk to the police before consulting either a lawyer or a parent or guardian. Minors can exercise their Miranda rights by asking to speak either with a lawyer or with a parent or guardian before talking to the police. If the police ignore the request and continue questioning the minor, nothing the minor says is admissible as evidence of the minor’s guilt if the case goes to trial.

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18. How and when are lawyers ­appointed for minors? In some jurisdictions, public defenders are automatically appointed for minors. In other jurisdictions, minors have to formally request appointed counsel at arraignment.

19. Will a minor who comes from a wealthy family still be eligible for an appointed attorney? Yes. The right to counsel attaches to the minor, not to the minor’s family. While some counties may try to collect payment for legal services from the minor’s family, it is doubtful that the family could be legally compelled to pay.

Is It Helpful for Minors to Have Lawyers in Juvenile Cases? Almost always, yes. And the attorney should normally be one who specializes in or is at least familiar with juvenile court procedures. Research indicates that effective assistance of counsel can greatly affect a case’s outcome. For example, attorneys often can help by: • getting cases diverted, or handled informally, so the juvenile is not incarcerated and has no juvenile court record; • arranging for a juvenile’s release from preadjudication detention; • keeping juveniles from being tried as adults; and • putting together and convincing a judge to agree to a creative and compassionate disposition. Nevertheless, some juvenile court professionals say that a lawyer’s involvement often prolongs cases, turning cases which a prosecutor might be willing to handle informally into a formal adversarial

proceeding. Some probation officers, intake personnel, judges, and other juvenile court staff admit that they are hostile to defense attorneys because they think that the attorneys slow down already overcrowded calendars. Some judges threaten to (and some actually do) give harsher treatment to juveniles represented by lawyers. Since the variables are so great, there are no meaningful guidelines regarding when a lawyer should be used. However, juvenile court regulars, such as a deputy public defender assigned to the court, may have an informed opinion on whether the minor is likely to be benefit from legal representation. Also, the more serious the crime and the worse the minor’s record, the more important it is to have legal representation. On the other hand, an “A” student with no prior record who is accused of putting graffiti on a school wall may decide that a quick, informal, and satisfactory disposition is more likely if no lawyer is involved.

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20. Are parents allowed to participate in meetings between their child and the child’s lawyer? Sometimes. Most defense lawyers will initially want to meet with a minor alone, because the minor is the client even if the parents are paying for the lawyer’s services. In fact, in order to preserve lawyer-client confidentiality (discussed in Chapter 8), it’s important that minors speak privately with their lawyers. However, when the time comes to make important decisions, it is common for lawyers to include parents in the discussion, assuming the minor consents. Parents may certainly—and should—tell lawyers to keep the parents informed about what is happening. Parents should also ask if they can be of any assistance. For example, parents may be able to provide relevant family history and contact people familiar with a child (for example, teachers, clergy­ people, or employers) who might agree to testify or write letters on the child’s behalf.

21. Other than the right to counsel, what other constitutional rights do juveniles have? The Gault case (U.S. Sup. Ct. 1967) also decided that in addition to the right to counsel, juveniles charged with crimes have: • the right to notice of the charges; • the right to confront and cross-examine witnesses; and • the privilege against self-incrimination (they cannot be compelled to testify). (For more on these rights, see Chapter 17.)

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22. Is there a right to a jury trial in juvenile courts? Generally, no. Only about ten states allow jury trials in juvenile delinquency cases. Even in those states, the right to a jury trial may be confined to specific types of cases, such as those involving minors who have prior records and are facing serious charges. States that do not allow jury trials at all in juvenile court include California (Welfare and Institutions Code § 702.3), New Jersey (Statute 2a:4a-40), and Pennsylvania (Title 42, § 6336). Massachusetts (Chapter 119, § 55-A) and Michigan (Statute 712A.17) afford juveniles a general right to jury trials. Arkansas (Statute 9-27-331), Colorado (Statute 19-2-804), and Illinois (Chapter 705, § 405/5-35) provide jury trials to juveniles only in limited types of cases.

23. What is the burden of proof in juvenile cases? To convict an adult of a crime, the government must prove guilt beyond a reasonable doubt. (See Chapter 17.) In re Winship (U.S. Sup. Ct. 1970) extended this rule to juvenile court cases in which a minor could be incarcerated if adjudicated a delinquent. However, to sustain charges that will not result in a minor’s incarceration, the government only has to prove by a preponderance of the evidence that the minor engaged in illegal conduct.

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Section V: Trying Juveniles as Adults

26. At what age can a minor’s case be transferred to adult court and the minor tried as an adult?

This section provides an overview of the procedures by which juvenile courts can transfer cases to adult criminal courts, where juveniles are tried as adults.

The age at which a minor may be tried as an adult varies from state to state. In many states, a minor can be tried as an adult only if the minor has reached a minimum age, often 16. In other states, 13-year-olds may be tried as adults. In still other states, a child of any age may be tried as an adult depending on the nature of the crime. Based on a perception of increased lawlessness at younger ages, the current trend is for states to lower the age at which a minor may be tried as an adult.

24. What does it mean to be tried as an adult? Juveniles who are tried as adults are subject to the harsher punishment options of adult criminal courts. For example, juveniles who are tried as adults and convicted can receive sentences that juvenile court judges lack the power to impose (for example, life sentences) and will normally be locked up in adult jails and prisons rather than juvenile treatment facilities. On the other hand, adult criminal courts afford rights that some juvenile courts do not, such as the right to a jury trial.

25. Why might a case be transferred from juvenile to adult court? A juvenile court judge may transfer a case to adult court when, in the judge’s opinion, the minor is not amenable to rehabilitation as a juvenile. Typically, juveniles are transferred to adult court when they are charged with serious offenses and/or have a lengthy juvenile court record. Juvenile court judges usually also take into account the minor’s age (older minors are more likely to be transferred to adult courts than younger minors) and mental and physical abilities.

27. What procedure does a juvenile court judge follow when deciding whether to transfer a case to adult court? While juvenile court judges can themselves begin transfer proceedings, transfer proceedings are normally initiated at the request of a government prosecutor. Following the prosecutor’s request, a juvenile court judge hears evidence relating to the minor’s amenability—or lack thereof—to juvenile court services. A juvenile’s right to a hearing before a case can be transferred to adult court was established by Kent v. U.S. (U.S. Sup. Ct. 1966). Minors are entitled to counsel at transfer hearings. To convince a juvenile court judge to transfer a case to adult court, the prosecutor normally has to offer evidence showing probable cause to believe that the minor committed the charged offense. (This aspect

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of the hearing is similar to a preliminary hearing, discussed in Chapter 16.) If the judge concludes that probable cause exists, the judge may then hear additional evidence concerning the minor’s general background, prior juvenile court record, and amenability to treatment. Then, taking into account the seriousness of the offense, the judge will decide whether to transfer the case to adult court. After transfer to adult court, a case typically goes back to square one, with an adult court arraignment. (See Chapter 10.)

Other Names for Transfer ­Hearings The hearing in which a judge considers whether to transfer a case to adult court has a variety of names. The hearing may be called a “waiver” hearing, because the juvenile court waives (gives up) jurisdiction by transferring a case to adult court. It may also be called a “fitness” hearing, since the judge decides whether a minor is fit to be tried as an adult. A final common name is a “certification” hearing, because a judge certifies that a minor is fit to be tried as an adult.

28. What are automatic transfer laws? Some states have laws mandating that juveniles be tried as adults in certain types of cases. The typical automatic transfer law is activated when a minor has reached a certain age (often 16) and is charged with a serious and violent offense such as robbery, rape, or murder.

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29. What are reverse transfer ­hearings? Juveniles have the right to request a juvenile court transfer hearing even when a case is subject to an automatic transfer law. However, because the law has already automatically transferred the case, a minor is put in the position of trying to convince a juvenile court judge to take back jurisdiction. Thus, the hearing is commonly called a “reverse waiver” or “reverse transfer” hearing.

30. What arguments can a minor’s lawyer use to try to persuade a judge not to transfer a juvenile case to adult court? A recent child advocacy report identified the following arguments that attorneys can make at transfer or reverse transfer hearings: • Although an offense is serious, the minor is still a child who would benefit from the services available in the juvenile system. Factors indicating that a minor is likely to benefit from juvenile court services include: 1. the minor has close family attachments; 2. older friends, teachers, counselors, employers, etc., have submitted statements indicating their belief that a minor has good potential; 3. the minor was not thinking as an adult at the time of the offense; 4. the minor has good moral judgment and expressed remorse for the improper behavior;

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5. other minors in similar situations have benefitted from juvenile court services; and 6. it is realistic to expect that a minor’s delinquent behavior will improve from services meeting the minor’s needs. • The minor has not in the past had sufficient opportunity to be rehabilitated. • The minor is likely to suffer physical or emotional harm in the adult system. • The juvenile court system provides sufficient safeguards so that the community can be protected while the minor undergoes treatment as a juvenile. (Source: “A Call for Justice: An Assessment of Access to Counsel and Quality of Counsel in Delinquency Proceedings,” by the ABA Juvenile Justice Center, the Juvenile Law Center, and the Youth Law Center (1995), p. 35.)

How Can You Help an Accused Minor? Family members, friends, employers, teachers, and others who want to help a minor can appear in court or write letters demonstrating their support. Supporters should be prepared to give concrete examples of the minor’s behavior indicating that the minor is basically a good person who has potential and who should be given an opportunity to turn things around. Supporters can submit school records showing that the minor has attended school regularly. Parents may want to secure and submit to the court a psychological ­assessment of the minor. The fact that the minor has learning difficulties, for example, can be very relevant and persuasive evidence supporting treatment rather than punishment. Parents may be able to research and suggest to the court possible alternative treatment programs (such as wilderness programs or military schools) instead of a detention camp or juvenile hall. Finally, parents or other supporters can examine the prosecution’s file for inaccuracies, particularly concerning the minor’s previous juvenile court records.

31. When is it normally in a minor’s best interests to be tried as a juvenile rather than as an adult? Common advantages of being tried in juvenile rather than adult court include: • Juvenile court records are easier to seal than adult court records. (More on sealing juvenile records in Section VII, below.);

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• Juvenile court proceedings are civil, and a finding that a minor committed an offense usually carry less social stigma than an adult criminal record; • Juvenile courts dispositions are often less severe than adult criminal sentences, and are more likely to be tailored to the minor’s personal situation. For example, rather than simply imposing a fine or a jail term, a juvenile court judge may impose a curfew and require a minor to attend school and attend regular counseling directed towards minors; • Even when incarceration is ordered, a juvenile court judge is less likely to impose a lengthy sentence than an adult court judge. (Juvenile court judges cannot impose the most severe punishments, such as life imprisonment); and • Minors incarcerated by juvenile courts serve their sentences in juvenile facilities rather than adult prisons.

32. Can it ever be in a minor’s best interests to be tried as an adult rather than as a juvenile? Yes. As mentioned, a frequently cited potential benefit of being tried as an adult is that in an adult court a minor can request a jury trial. Jury trials are not available in most juvenile courts. And, depending on factors such as the minor’s age and the seriousness of the offense, a jury may be more sympathetic to the minor than a judge would be. In busy urban areas with crowded court dockets and overcrowded jails, it is also possible that the minor’s case will be disposed of more quickly and a minor will

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receive a lighter sentence in adult than in juvenile court.

Section VI: Sentencing ­(Disposition) Options This section briefly reviews the wide range of dispositional options often available to juvenile court judges.

33. Can juvenile court judges ­incarcerate minors? Yes. After sustaining a petition (finding that a juvenile committed a crime), juvenile court judges can order juveniles confined in a variety of placements. From the least to the most restrictive alternatives, some common confinement options include: • Home confinement (house arrest), in which a minor has to remain at home at designated times, often after a curfew during the week and on weekends; • Suitable placement. A judge may order a juvenile to live with a relative or in a group or foster home; • Juvenile jails (often called juvenile hall or juvenile detention facilities). Similar to adult jails, juvenile jails are designed for short-term incarceration; • “Shock probation” (also called a “split” or “intermittent” sentence), in which an offender is incarcerated for three to six months before going on probation. The place of incarceration may be a “boot camp,” in which minor offenders are subject to strict discipline and physical labor. The taste of jail hopefully shocks minors into improved behavior;

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• Secured facilities ranging from minimum to maximum security. (A juvenile detention camp is a form of secure facility.) Juveniles may be detained in secured facilities for months or even years. Typically, juveniles have to work and attend school and counseling sessions while in a secured facility; and • Adult jails. Juvenile judges may have the authority to sentence certain offenders to serve their sentences in adult facilities.

• Probation, which allows minors to remain free if they fulfill specified conditions. For example, regular attendance at counseling sessions is a typical condition of probation. A minor who violates a condition of probation may be incarcerated. The sample Minute Order Form below suggests the wide variety of probation conditions that a juvenile court judge may impose.

You Owe Me a Day in Jail 34. Other than confinement, what other dispositions are common in juvenile court? Juvenile judges can impose a variety of nonincarceration dispositions, either alone or in combination with each other. The most common nonincarceration options are: • A verbal warning or reprimand; • Payment of a fine to the court and/or restitution to the victim; • Counseling, either individual or group therapy; • Community service; • Electronic monitoring, which uses wristanklet transmitters to verify a minor’s location; and

One recent juvenile court proceeding is suggestive of how judges can tailor probation conditions to a minor offender’s personal situation. Following the sustaining of a petition, a judge placed the offender on probation and told the young offender that he would serve one day in juvenile hall for every unexcused school absence and for every unexcused tardy.

“Scared Straight” Scared Straight was a New Jersey program started in the late 1970s. The idea was to frighten juvenile offenders into reforming their behavior by confronting them with adult prison inmates who would curse at the minors and tell them of the horrors of prison life. The program was discontinued when research indicated that it had little effect on the rate at which minors committed crimes.

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Sample Minute Order Form

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A Sampling of Innovative Juvenile Justice Programs Teen Courts. Teen courts are the product of collaborative efforts of schools, juvenile courts, and probation departments. In teen courts, first-time teenaged offenders agree to be “tried” by a jury of their peers, other teenagers. Usually, the minor gives up the right to be represented by counsel. The jurors hear evidence, often presented by a probation officer. The juvenile being tried may admit to the charges or present additional evidence. Though teen courts cannot fine or imprison offenders, their sentences can carry serious consequences. With the consent of a minor’s parents, teen court sentences can impose community service, counseling, drug or alcohol rehab programs, curfews, and/or restrictions on who the minor can associate with. Teen courts may also impose more creative sanctions, such as requiring a minor to scrub graffiti off a school wall, attend tutoring, write an essay about the minor’s improper behavior, or write a letter apologizing to the victim. After a teen court trial, the offender may have to report to the probation department to verify compliance with the sanctions.

L.A.’s Juvenile Traffic Court. Despite its name, the Juvenile Traffic Court has jurisdiction over a variety of cases, including those in which minors are charged with status offenses (truancy and curfew violations) and minor drug or traffic offenses. The Juvenile

Traffic Court follows a “fast track” process designed to dispose of cases within 45 days instead of the usual juvenile court average of nine months. In this informal style of court, lawyers are not permitted and judges have great leeway in tailoring dispositions to individual offenders. For example, a judge dismissed the case of one minor who brought to court a certificate showing that she attended school every day, and waived the fine for the student who completed summer school with at least a “C” average. Denver’s Project New Pride. This is a community-based program aimed at hardcore offenders. Minors get tutoring help for school assignments, job counseling, and training. For example, project staff help minors fill out job applications and even start small businesses (for example, providing lawn and garden services) to help defray program costs. The Boston Offender Project. Targeting violent offenders, the project features decreasing levels of incarceration and case supervisors with low caseloads who provide intensive psychological and employment counseling. The Allegheny Academy. Minor offenders in this program live at home but attend the academy after school and on weekends. At the academy, minors receive meals, job training, and individual and group counseling.

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35. What are blended sentences? Judges in some jurisdictions have the power to sentence juveniles to serve time both in adult and juvenile facilities. For example, after a case has been transferred from juvenile to adult court, the adult court judge may sentence a minor to serve time in a juvenile facility until age 18 and then complete the sentence in an adult prison. Similarly, a judge may have the authority to sentence a minor to serve time in an adult prison, but suspend that sentence while the minor serves time in a juvenile facility.

36. How do juvenile court judges decide what disposition to give? Like their adult court counterparts, juvenile court judges take a number of factors into account when deciding on an appropriate disposition. The seriousness of an offense and an offender’s prior record are always of major importance. Juvenile court judges tend to rely heavily on the recommendations of probation officers. A juvenile court judge’s particular philosophy concerning the proper role of the juvenile court may also influence the disposition. For example, a judge who views the court’s primary function as rehabilitative may resist imposing incarceration despite a locality’s get-toughon-crime attitude. As this last factor suggests, dispositions are often a product of a host of subjective and unpredictable factors. For example, a minor appearing in court at the end of a day after the judge has processed numerous cases, each more depressing than the last, may be treated more harshly than someone whose case happened to be first on the

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calendar. A disposition may depend on whether a probation officer or judge views the minor as rebellious, confrontational, or remorseful. Even a minor’s demeanor and manner of dress may be critical. A minor whose clothes demonstrate respect for the court and who answers questions politely may be given a less harsh disposition than a minor who shows up in gang-type clothing and who rudely mumbles responses. While some of these factors may be unfair, they are a necessary byproduct of a system in which human beings have to decide what is in a minor’s and society’s best interests.

37. Can a minor’s juvenile court record affect a later sentence in adult criminal court? Yes. Statutes in many states permit (and sometimes require) judges to impose harsher sentences on violators with prior convictions. Often, even though juvenile court proceedings are civil, these laws provide that juvenile court dispositions, especially for serious violations, count as prior convictions. Some prior juvenile offenses may even count as strikes under a state’s “three strikes” law. (For further discussion of three strikes laws, see Chapter 22, Section I.) Case Example: As an adult, Anne Apolis is convicted of attempted murder. Six years earlier, Anne had been declared a ward of the court after a juvenile court adjudication of carjacking. A statute in Anne’s state provides for double the mandatory minimum sentence for convicted felons who have previously been convicted of specified

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crimes, including carjacking. Question: Might Anne’s juvenile court adjudication affect the length of her sentence on the attempted murder conviction? Answer: Yes. Because Anne has a juvenile prior for carjacking, she will probably be sentenced to double the mandatory minimum. In most states, juvenile court adjudications have the same effect as adult convictions under sentence enhancement laws.

38. Can a minor challenge or alter a juvenile court judge’s disposition order? Yes. Like adults, juvenile offenders have the right to file appeals and writs. (See Chapter 23 for more on appeals and writs.) Juveniles can also ask a juvenile court judge to modify a disposition based on changed circumstances. For example, a minor who was placed outside the family home in part because a stepparent was a bad influence may ask the judge to return home when the stepparent moves away. Or, a relative whose home can serve as a suitable placement may be located after a disposition order has been made. Or, a minor may ask for a change if a placement is unsafe or the minor is not receiving the treatment the judge anticipated at the time of disposition. Juvenile court judges usually have broad power to change their orders, so postdisposition changes are always possible.

Section VII: Sealing Juvenile Court Records This section outlines basic procedures for sealing (expunging) juvenile court records. Sealing gives former offenders a chance to avoid being hampered in adulthood by their juvenile misbehavior.

39. What is a juvenile court record? A juvenile court record consists of the documents relating to a juvenile court case. If a minor is arrested and the case is closed without charges being filed, the record will be short, perhaps no more than a record of an arrest. If a minor is adjudicated a ward of the court for violating the law and given an in-custody disposition, the record may be much longer.

40. What does it mean to seal a ­juvenile court record? To seal or expunge a juvenile court record means to treat the juvenile court proceedings as though they never took place. Allowing juveniles to keep their records sealed helps people who’ve cleaned up their acts from forever being haunted by things they did when they were young.

Chapter 25: Juvenile Courts and Procedures

Example: Some years ago, Rick was adjudicated a ward of the juvenile court for committing a residential burglary. Rick later went to court and had the record sealed. Then, when Rick applied for a job, the employer asked, “As a minor or an adult, have you ever been convicted of a criminal offense?” Rick legally can and should answer “No,” since his juvenile court record was sealed.

41. Are juvenile court records sealed automatically when a person becomes an adult? No. Normally, a person who meets a state’s eligibility requirements for record-sealing has to file a petition with the juvenile court clerk, often in the county where the juvenile adjudication occurred, formally asking the court to issue a written order sealing the record. However, some states do have limited automatic sealing provisions. (See Calif. Welfare & Institutions Code § 826-a, providing that unless a judge decides that a former juvenile court offender has continued to violate the law, juvenile court records are destroyed automatically on an offender’s 38th birthday.)

42. Is it necessary to hire an attorney to have a record sealed? No. An experienced attorney may be able to quickly complete the necessary paperwork, but will certainly charge a fee

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to do so. Many states have preprinted fillin-the-blanks petition forms, available at a court clerk’s office. These forms ordinarily contain instructions for completing and filing the petition. In some states, a county probation officer also has the authority to file paperwork on a petitioner’s behalf.

43. When is a juvenile offender eligible to seal a juvenile court record? Eligibility rules vary from state to state. Typically, eligibility for record-sealing depends on such factors as: • Age. Usually, a petitioner must be an adult (18 years old) to be eligible for record-sealing. • How much time has passed since an offense was committed or since the juvenile court proceedings ended. Often, even if a juvenile offender has reached adulthood, the offender has to wait a specified period of time (perhaps five years) from the date of an offense or from the termination of juvenile court proceedings. • Seriousness of the juvenile court offense. Misdemeanor records may be more readily sealed than felony records. • Conduct following the juvenile court proceedings. A juvenile offender with later criminal violations may be ineligible to have juvenile court records sealed.

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44. Can sealed records ever come back to haunt a juvenile offender? Yes. Record-sealing rewrites history for many, but not all, purposes. For example: • A sealed record of a juvenile court adjudication may be used to increase the severity of a sentence following a later conviction. (See Question 37, above); • An application for a job in law enforcement may trigger a police agency’s access to sealed records; and • An application for auto insurance may allow the insurance company to have access to sealed records pertaining to automobile-related offenses.

Reference Box: Further Reading on Juvenile Courts and Procedures • Trial Manual for Defense Attorneys in Juvenile Court, by Randy Hertz, et al. (ALI/ABA), a treatise written for lawyers providing comprehensive instruction on the lawyer’s role in juvenile delinquency proceedings. • Representing the Child Client, by Mark Soler, et al. (Matthew Bender), another lawyer’s treatise that provides comprehensive analysis of the laws affecting accused children. • The Juvenile Justice System Law and Process, 2d ed. by Mary Clement (Butterworth-Heinemann), a textbook that gives a clear and detailed introduction to the civil and criminal aspects of the juvenile justice system. • No Matter How Loud I Shout, by Edward Humes (Simon & Schuster), a compelling and personalized account of a year in the life of one California juvenile court judge.

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Chapter 26

Prisoners’ Rights Section I: Prisons and ­Prisoners’ Rights…………………………………………………………………..545 1. Do prisoners have the right to decent living conditions? …………………………………545 2. What factors have judges c­onsidered when deciding whether prison conditions are adequate?……………………………………………………………………………545 3. Does the right to equal protection of the laws mean that all prisoners must be treated alike?………………………………………………………………………………………..546 4. Can prisoners observe religious holidays, meet with clergy, and wear ritual clothing?………………………………………………………………………………………….547 5. Do prisoners have the right to medical treatment? …………………………………………547 6. May prison officials withhold food to punish prisoners?…………………………………..548 7. Can prison guards use physical force against inmates? . ………………………………….548 8. Do prisons have to protect i­nmates from attacks by other prisoners?………………….548 9. Do prisoners have the right to outdoor exercise?…………………………………………….549 10. May prison officials search p ­ risoners’ cells?…………………………………………………..549 11. Are prison officials allowed to seize a prisoner’s property during a “shakedown” search?…………………………………………………………………………………550 12. Can prison officials conduct strip searches and body cavity searches of inmates?…..550 13. Can family members and friends visit prisoners?…………………………………………….550 14. Do prisoners have a right to p ­ rivacy during prison visits?…………………………………551 15. Do prisoners have the right to make phone calls?…………………………………………..551 16. May prisoners be transferred from one prison facility to a­ nother?………………………551 17. Do prisoners have the right to send and receive mail?…………………………………….552 18. May prison officials open and read mail to and from a prisoner’s lawyer? …………552 19. May prison officials place limits on inmates’ mail privileges?……………………………552 20. Are disabled prisoners protected under the Americans with ­Disabilities Act?………553 21. May prisoners get married while in prison?……………………………………………………553 22. Can prisoners be required to work while in prison, and, if so, are they paid? ……..553 23. Is a prison the same thing as a jail?………………………………………………………………554 24. Can prisoners choose the type of work they are required to do in prison? ………….554 25. Can prisoners lose professional or business licenses as a result of imprisonment?…..554 26. Can prisoners vote while in prison or after they are released? ………………………….554

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27. Do prisoners lose custody of their children when they are imprisoned?……………..555 28. Must a parent who is paying child support continue to make payments while in prison?………………………………………………………………………………………..555 Section II: Legal Resources for Prisoners and Their ­Families………………………………………555 29. Do prisoners have any recourse when prison officials seek to r­ evoke their privileges for v­ iolating prison rules? …………………………………………………………….555 30. How can prisoners use the courts to enforce their legal rights?…………………………556 31. Does the right of access to the courts include the right to c­ ounsel?……………………556 32. What kind of rules apply to p ­ risoners’ lawsuits?……………………………………………..557 33. Are prisoners supposed to have access to legal materials? ………………………………558 Section III: Parole……………………………………………………………………………………………….560 34. What are typical parole conditions?……………………………………………………………..560 35. What is the difference between probation and parole?…………………………………….560 36. How long can I remain on parole?……………………………………………………………….560 37. Can a parolee relocate?……………………………………………………………………………..561 38. Do judges decide when to ­release prisoners on parole?…………………………………..561 39. What factors do parole boards consider when deciding whether to parole a prisoner? ……………………………………………………………………………………………..561 40. Can victims affect parole d ­ ecisions?……………………………………………………………..561 41. What happens if a parolee v­ iolates a condition of parole? ………………………………561 42. Do parolees have a right to a­ ppointed counsel at parole revocation hearings?…….562 Section IV: Pardons……………………………………………………………………………………………..562 43. What is “temporary release” and how does it differ from parole?………………………..562 44. Who has the power to grant p ­ ardons? . ………………………………………………………..562 45. What standards must g­ overnors or the president follow in d ­ eciding whether or not to grant pardons?…………………………………………………………………562 46. Is “sealing” a criminal record the same as a pardon?……………………………………….562 47. Can DNA tests show that someone who was convicted many years ago is actually innocent?………………………………………………………………………………….563

Chapter 26: Prisoners’ Rights

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rison inmates lose many of their civil rights, including many of the rights enjoyed by nonconvicted criminal defendants that we described earlier in this book. But the Eighth Amendment to the U.S. Constitution, which prohibits “cruel and unusual punishment,” as well as many other federal and state laws, ensures that prisoners do not lose all of their rights just because they are behind bars. This chapter discusses important prisoners’ rights, focusing on federal rights that are common to prisoners nationwide. This chapter also includes a section on resources for prisoners and their families. Finally, the chapter explains the basics of parole (early release from prison under supervision) and pardons (grants of executive clemency).

Section I: Prisons and ­Prisoners’ Rights Prisoners retain rights to basic freedoms such as freedom of speech, religion, and equal protection of the laws (meaning a right not to be treated differently than other prisoners just because of race, sex, or religion). Prisoners also have the right to basic—albeit minimum—living standards. However, these rights may be curtailed to some extent because courts must balance them against a prison’s need for safety, order, and security. Courts tend to uphold prison rules that limit prisoners’ exercise of constitutional rights so long as the prison rules are reasonably related to legitimate prison needs. This section examines the balance that courts have struck between prisoners’ rights and prison regulations in a variety of common situations.

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1. Do prisoners have the right to decent living conditions? The Eighth Amendment requires that state and federal prison systems provide at least “the minimal civilized measure of life’s necessities” (Rhodes v. Chapman, U.S. Sup. Ct. 1981). Because this rule is so vague, prisons can be deficient in a variety of ways yet still meet minimum constitutional standards. To prove that prison conditions are cruel and unusual, prisoners must show that they were forced to live with seriously hazardous or oppressive conditions (an objective test that looks at the conditions themselves) and that prison officials deliberately or maliciously caused the conditions (a subjective test that considers the intent of the officials responsible for them) (Wilson v. Seiter, U.S. Sup. Ct. 1991).

2. What factors have judges c­onsidered when deciding whether prison conditions are adequate? When determining the adequacy of prison conditions, judges consider both the conditions themselves and how prison officials have subjected inmates to them. Examples of inadequate prison conditions include: • overcrowding; • lack of supplies necessary for personal hygiene, such as soap and water; • unsanitary food preparation; • nutritionally inadequate food; • lack of access to medical treatment and poor medical care; • failure to protect prisoners’ physical safety;

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• substandard shelter, such as the lack of adequate heating, cooling, clothing, and blankets; • unsafe building conditions, such as exposed wiring and vermin infestation; • inadequate facilities for prisoners put in solitary confinement; • lack of opportunities for prisoners to get physical exercise; and • inadequate opportunities for prisoners to access the courts, such as a prison law library that has few books or is unavailable to prisoners in solitary confinement. A condition may be improper even though it affects only a small group of prisoners. For example, prison officials may violate both the First (free exercise of religion) and the Eighth (freedom from cruel and unusual punishment) Amendments if they do not provide pork-free meals to prisoners whose religions forbid eating pork, even if the non-pork-eaters make up a minority of the population.

How Many Americans Are Behind Bars? The Bureau of Justice Statistics provides information on many aspects of the criminal justice system. Its figures reveal that as of the beginning of 2003, a little over two million people were incarcerated in federal and state prisons and jails. This represented an increase of 3.7% over the number of inmates as of a year earlier. About three times as many people were incarcerated as of the beginning of 2003 than had been incarcerated in 1980. The number of inmates varies greatly according to gender and race. Of the more than two million inmates, about 97,000 were women. For black males, there were 3,437 inmates per 100,000 black males in the country. For Hispanic males, there were 1,176 inmates per 100,000 Hispanic males in the country. For white males, there were 450 inmates per 100,000 white males in the country. However, because the number of white males in the U.S. is so much greater than the number of black males, about an equal number of whites and blacks have served time in jail or prison. In addition to those who were incarcer­ ated as of the start of 2003, close to four million people were on probation across the country. Another 753,000 people were on parole.

3. Does the right to equal protection of the laws mean that all prisoners must be treated alike? No. Prison officials have wide discretion to manage prison life. For example, many prisons classify inmates as maximum,

Chapter 26: Prisoners’ Rights

medium, or minimum security risks, and treat them accordingly. As a result, minimum security risk prisoners are usually housed in a section of a prison with fewer restrictions on their movement and greater work opportunities compared to maximum security risk prisoners. Factors that prison officials consider when assessing a prisoner’s security classification include: • the length and severity of the sentence; • previous behavior in other jails or prisons; • medical needs; • gang affiliations (or the existence of known enemies within the prison population); • work skills; • proximity to outside family (especially where a relative is ill or aged); • likelihood of rehabilitation; and • whether a prisoner poses a threat to other inmates, guards, or himself. Prisoners who are unhappy with their confinement status may seek a review of this process, especially if the prisoner can show proof of specific factors that warrant a lower risk classification, such as work skills or medical needs. But it’s most effective to present such documentation when a prisoner is first confined. Prison officials will be less inclined to change their minds once they make a designation, and courts often refuse to second-guess prison officials on a process they view as a prison management function.

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4. Can prisoners observe religious holidays, meet with clergy, and wear ritual clothing? Yes. The First Amendment guarantees free exercise of religion, and that right cannot be denied to prisoners absent valid, rational prison management concerns.

5. Do prisoners have the right to medical treatment? Yes. To deliberately or intentionally withhold necessary medical treatment constitutes cruel and unusual punishment under the Eighth Amendment (Estelle v. Gamble, U.S. Sup. Ct. 1976). State and federal rules such as the federal Correctional Officers Health and Safety Act of 1998 also set forth efforts that prisons must make to prevent and detect diseases. Case Example: Joseph Dabney, a state prison inmate, complained to prison guards several times about chest pains and shortness of breath during outdoor exercise. Joseph saw several prison doctors, none of whom gave Joseph any treatment other than telling him to take it easy. Joseph subsequently suffered a massive heart attack. Question: Does Joseph have a claim for the unconstitutional denial of medical care? Answer: Yes. Prison officials (both guards and doctors) were aware of symptoms commonly associated with serious heart trouble yet failed to provide treatment. Joseph could recover money damages because the prison was deliberately indifferent to his medical needs. A judge might also order “injunctive relief,” requiring the prison to upgrade its medical procedures.

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6. May prison officials withhold food to punish prisoners? No. Prisons must give enough food to provide sustenance and nourishment to inmates. However, food restrictions of various types may be a permissible form of punishment, especially if they are temporary. For example, a prison may withhold hot foods or provide a prisoner with only one meal a day. In an extreme case, even a temporary diet of bread and water may be permissible. Case Example: Gene Bogz, a federal prisoner, found mouse parts in the chicken dinner he was served one night. Question: Does Gene have a valid claim that his Eighth Amendment rights were violated based on being served unsanitary food? Answer: Gene’s claim will not win if the court finds this was an isolated incident, or that prison officials had taken steps to fix the problem (such as hiring exterminators to rid the facility of mice). Gene might have a valid legal claim if the problem were ongoing, if there were other incidents of unclean food, or the court determined that the prison officials knew about the mice and had done nothing to get rid of them.

7. Can prison guards use physical force against inmates? Prison staff violate the Eighth Amendment when they use force “maliciously and sadistically for the very purpose of causing harm,” but they are permitted to use force in a good faith effort to maintain or restore discipline (Hudson v. McMillan, U.S. Sup.

Ct. 1992). Generally, this means an inmate must show that the force was not used for a legitimate disciplinary purpose, or that the degree of force the officials used was completely out of proportion to the needs of the situation. Case Example: Andy and Kopkit, prison guards, fire tear gas and plastic bullets into the prison yard after a disturbance in which three inmates from one gang attacked an inmate from a rival gang. Andy and Kopkit then forcibly herd all the prisoners on the yard into their cells. Arvin Waites, an older inmate who was not involved in the disturbance, slipped and fell while being herded back to his cell, suffering a painful sprained ankle. Question: Does Arvin have a good chance at winning a personal injury lawsuit against Andy, Kopkit, and the prison? Answer: No. Under the circumstances, the guards’ actions were reasonably necessary to quell a disturbance. Especially in such an emergency situation, Arvin would have to prove that the guards acted maliciously (that is, spitefully or wickedly), an extremely difficult task.

8. Do prisons have to protect ­inmates from attacks by other prisoners? Yes. But to have a valid legal claim against a prison for failing to protect him from attack, the victimized prisoner has to prove that prison staff was aware that the prisoner had been threatened by a particular inmate and that the staff was deliberately indifferent to the prisoner’s safety.

Chapter 26: Prisoners’ Rights

Prison Assault and Rape Widely acknowledged to be a serious problem for both men and women serving time in prison, prison rape has been condemned by many, including the U.S. Supreme Court: “The horrors experienced by many young inmates, particularly those who are convicted of nonviolent offenses, border on the unimaginable. Prison rape not only threatens the lives of those who fall prey to their aggressors, but it is potentially devastating to the human spirit. Shame, depression, and a shattering loss of selfesteem accompany the perpetual terror the victim thereafter must endure” (Farmer v. Brennan, 1994). According to statistics published by the nonprofit organization Stop Prison Rape, some 80,000 unwanted sexual acts take place behind bars in the United States every day. These include both inmate-on-inmate assaults and guard-on-inmate assaults. A report in Salon magazine’s 1998 series “Locked Up in America” found that “the vast majority of the more than 138,000 women in U.S. prisons and jails today [said they] have been exposed to some form of sexually related intimidation or assault by corrections officers while serving time.”

9. Do prisoners have the right to outdoor exercise? Prisoners must be afforded reasonable opportunities for physical movement. A few lower courts have recognized access to outdoor exercise as a right that may not be taken away unless justified by other prison needs (such as when a prisoner is denied access because he assaulted another

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inmate on the prison yard). Other courts have upheld prison programs of indoor-only physical activities.

10. May prison officials search ­prisoners’ cells? Yes. Although a cell is a prisoner’s “home” during incarceration, prisoners have no judicially-recognized expectation of privacy in their cells. Therefore the Fourth Amendment right to be free from unreasonable searches and seizures is extremely limited for prisoners. Prison officials do not need warrants to search prisoners’ cells, and searches may be random and unannounced. Typically, though, to be considered reasonable, officials must have legitimate reasons for conducting their searches, such as the prison’s need to keep the facility free of drugs and weapons. Case Example: Victor Sales, a prison inmate, filed a complaint against prison officials for failure to provide him with adequate access to the prison law library. After the complaint was filed, guards began waking Victor up twice nightly and searching his cell. The guards said they were looking for drugs and weapons, but Victor believes that the guards conducted the searches in retaliation for him complaining about the library. Other prisoners were not subjected to these “shakedown” searches after lights out. Question: Does Victor have a valid legal claim for a violation of his Fourth Amendment rights? Answer: Yes. Even though the prison officials do not need a warrant to search Victor’s cell, cell searches must still be

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reasonable. A search made in order to intimidate and harass, rather than for a legitimate prison purpose, is not reasonable.

11. Are prison officials allowed to seize a prisoner’s property during a “shakedown” search? Prison officials can almost always justify seizures of prisoners’ personal belongings, because they are permitted to take away property in order to maintain security and order.

12. Can prison officials conduct strip searches and body cavity searches of inmates? Intrusive body searches can be legitimate if they are necessary to maintain prison safety and keep out contraband. However, invasive searches are not valid if they are performed to humiliate or harass a prisoner, or to retaliate against a prisoner for angering a member of prison staff.

13. Can family members and friends visit prisoners? Visitation has never been declared to be a fundamental constitutional right. Most prisons do allow visits, but if prison officials have valid reasons for placing limits on visitation, judges almost always uphold those restrictions. It is typical for prisons to: • limit visiting hours; • minimize physical contact, requiring prisoners to communicate with visitors through a barrier such as a wall (though

lawyers can usually arrange full contact visits with their clients); • restrict the numbers and types of visitors. For example, a prison may limit visits to only certain family members, or ban visits altogether from people who have violated prison rules on previous visits or those suspected of gang-related activity; and • require both a visitor and a prisoner to be searched before and after the visit to ensure that contraband does not enter the prison. The U.S. Supreme Court has ruled that prison regulations such as these are valid (Overton v. Bazzetta, U.S. Sup. Ct. 2003).

Chapter 26: Prisoners’ Rights

How Successful Are Prisons at ­Rehabilitating Inmates? Judges often sentence offenders to prison in the hope that they will emerge as lawful, productive citizens. However, the unfortunate fact is that imprisonment generally fails to produce rehabilitation. For example, studies have found that a year after release, 60% of ex-inmates remain unemployed. And the federal Bureau of Justice Statistics has found that two-thirds of parolees are rearrested within three years of their release. Prisons’ typical failure to achieve rehabilitation is due partly to lack of resources, which translates into a lack of prison programs. For example, estimates are that somewhere between 70% and 85% of inmates have substance abuse problems. However, less than 15% of inmates are treated for those problems while they are incarcerated. Similarly, though many inmates are functionally illiterate, prisons do little to enhance their literacy skills. Compounding the inability of prisons to provide rehabilitative services are a variety of laws that can make life on the outside very difficult for many ex-felons. For example: • Federal welfare rules bar those convicted of buying or selling drugs from ever receiving food stamps or cash assistance; • Federal housing laws allow public housing agencies to exclude ex-felons and their families from public housing; • Federal education laws bar ex-felons who have violated drug laws from receiving student loans; • Ex-felons may be unable to vote or pursue a wide variety of professions. For further information see Gates of Injustice: The Crisis in America’s Prisons by Alan Eisner (Prentice Hall).

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14. Do prisoners have a right to ­privacy during prison visits? No. Prison officials may monitor most visits. But visits from lawyers must be private enough to allow for confidential communication.

15. Do prisoners have the right to make phone calls? As a general rule, inmates have a right to make phone calls. However, prisons can severely restrict the right: a typical prison rule limits inmates to two short social calls per week. Prisoners may also be required to pay for long distance phone charges.

16. May prisoners be transferred from one prison facility to ­another? Prisoners do not have a right to liberty, and therefore they have no right to be incarcerated in the prison of their choice. If a prisoner wants to contest a scheduled transfer, prison officials must usually give the prisoner a hearing to object to the move. If the prisoner loses at his hearing and takes the case to court, a judge will typically approve the transfer so long as prison officials have a rational basis for their actions. Case Example: Mohammed is incarcerated in a federal prison in New York. Moham­ med’s attorney is in New York and his family lives there. Mohammed is then transferred to a prison in New Mexico, though none of his family members can afford to visit him there.

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Question: If Mohammed can show that he was transferred because the New York warden is prejudiced against people of Middle Eastern descent, would the transfer be valid? Answer: No. A prisoner’s ethnicity is not a rational reason for a transfer. Question: Is the transfer valid if the prison shows that Mohammed was transferred in order to testify before a grand jury in Santa Fe, New Mexico? Answer: Yes. Prisons are often located in remote rural areas where family visits are difficult, so the distance from his home is not enough to invalidate the transfer. And Mohammed’s presence as a witness before the grand jury would certainly be a legitimate government reason to move him (Olim v. Wakinekona, U.S. Sup. Ct. 1983). Mohammed might more successfully challenge the transfer if he could show that he was transferred as punishment for having requested a pork-free diet, or if he were too weak to travel and could show that the move would cause serious pain or injury.

17. Do prisoners have the right to send and receive mail? Yes, but prison officials may typically open and read mail first. However, prison censorship must be related to rational prison concerns. For example, they can justify examining incoming mail more strictly than outgoing mail, because mail entering the facility must be more carefully screened for contraband.

18. May prison officials open and read mail to and from a prisoner’s lawyer? Prison officials have a limited right to open letters and packages from lawyers. Officials can open mail to be sure that it does not contain contraband. However, they typically must open it in front of the inmate. Moreover, officials may not read the contents of lawyer-client communications. Lawyers who send mail to prison inmates mark it as “privileged legal communication” or “confidential legal correspondence,” and inmates should do the same when they write letters to their lawyers.

19. May prison officials place limits on inmates’ mail privileges? Yes. A prison may limit the people with whom a prisoner corresponds when necessary for prison order, safety, or security. Prisons may also limit the type of mail a prisoner receives. For example, prisons may forbid mail that contains nudity or sexuallyexplicit material. Case Example: Bruce, who is in a maximum security prison serving time for selling narcotics, has been corresponding with his girlfriend Rainy. A prison guard recently found photos and maps of the land around the prison as well as references in the girlfriend’s letter that officials felt might help Bruce to plan an escape. Question: Can the prison forbid future correspondence between Bruce and Rainy? Answer: Yes. The prison has an adequate basis for thinking that mail letters to and from Rainy pose a security threat.

Chapter 26: Prisoners’ Rights

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20. Are disabled prisoners protected under the Americans with ­Disabilities Act?

22. Can prisoners be required to work while in prison, and, if so, are they paid?

Yes. Prison officials at state and federal facilities must provide reasonable accommodations for disabled prisoners (Pennsylvania Dept. of Corrections v. Yeskey, U.S. Sup. Ct. 1998).

Yes to both questions. The Thirteenth Amendment, which forbids slavery and other involuntary servitude, has a specific exception for people who have been convicted of a crime. According to the Federal Bureau of Prisons, “All Federal inmates have to work if they are medically able. Most inmates are assigned to an institution job such as food service worker, orderly, plumber, painter, warehouse worker or groundskeeper. These jobs pay from twelve cents to forty cents per hour.” Most states pay prisoners similarly low wages for prison work, and some allow for compensation in the form of “credits” toward a reduced sentence rather than money. Monies earned from prison work are placed in accounts that prisoners may draw on to buy personal items through the prison commissary (store), to make phone calls, pay for court filing fees, or to satisfy court judgments such as victim restitution or child custody.

Case Example: An informant reported that he had seen Kathi Andrews, a deaf inmate, with a sharpened kitchen knife in violation of prison rules. Kathi was given an informal prison hearing to review the charges but was not provided a sign language interpreter at the hearing. Question: Did the prison violate Kathi’s rights under the Americans with Disabilities Act (ADA)? Answer: Perhaps. If the hearing officer spoke slowly and looked directly at Kathi so that she was able to understand everything by lip-reading, the prison may have done enough to reasonably accommodate her disability. If, however, the hearing was before a panel of officers and Kathi (who is only able to lip-read one person at a time) could not understand the proceedings without an interpreter, then the prison may have to provide one. In such a case, the prison may also have to remove any restraints on Kathi’s hands so that she could respond through the interpreter.

21. May prisoners get married while in prison? Yes, but prison officials may limit the type and length of any wedding ceremony.

Case Example: Lynn Felder is in jail awaiting trial on murder charges. Question: Can Lynn be forced to work in the jail’s kitchen facility? Answer: No. Lynn has not yet been convicted of a crime. The Thirteenth Amendment only permits forced labor as punishment for those convicted of a crime.

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23. Is a prison the same thing as a jail?

26. Can prisoners vote while in prison or after they are released?

A jail is a locked facility that generally houses defendants who are awaiting trial and unable to make bail, or who have been convicted of and are serving sentences for misdemeanors (less serious crimes). A prison, also known as a penitentiary, is a locked facility that houses inmates convicted of felonies (more serious crimes). Jails are normally funded and run by local governments, whereas prisons are administered by state or federal prison bureaus.

Almost all states bar felons from voting while they are in prison. (Only a few states, such as Vermont, allow prisoners to vote by absentee ballot.) At least seven states permanently bar convicted felons from voting. An estimated four million United States citizens are currently prohibited from voting due to felony convictions. Because a disproportionate number of those convicted of felonies are members of minority groups, these bans have prevented a higher percentage of minorities from voting than nonminorities. If you’d like more information on the states that ban voting rights for ex-felons, you can check out a report prepared by Human Rights Watch, at www.hrw.org/reports98/vote. Even in the states that do not permanently ban those with felony convictions from voting, the restoration of the right to vote is not necessarily automatic. In many states, the right to vote, along with the right to hold public office and serve on a jury, are part of a “package” of civil rights that may be restored upon the completion of a sentence (which means serving out any parole or probationary term in addition to any imprisonment associated with that conviction). In some states, such as California, Utah, and Oregon, these civil rights are restored automatically once a felon finishes the full sentence. In other states, corrections officials must notify the state’s Office of Elections, or the released felon must personally obtain a “Certificate of Discharge” and submit it to the governor’s office, affirmatively requesting the restoration of civil rights. To determine how to restore voting and other civil rights in a particular state, contact that state’s Department of Corrections.

24. Can prisoners choose the type of work they are required to do in prison? No. But prison officials may not discriminate against prisoners in making work assignments. For example, officials cannot base work assignments on an inmate’s race or religion.

25. Can prisoners lose professional or business licenses as a result of imprisonment? Whether conviction and imprisonment will cause a prisoner to lose a business or professional license often depends on the rules of the agency that issued the license. For example, in most states lawyers who are convicted of crimes involving fraud will almost certainly be disbarred. To determine how incarceration might affect a particular license, an inmate should consult both state licensing rules and the rules of the organization that issued the license.

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27. Do prisoners lose custody of their children when they are imprisoned? Inmate parents do not automatically lose formal custody of their children just because they are sent to prison (although this may happen to parents convicted of crimes involving child abuse or neglect). Because an imprisoned parent is not available to care for children, however, either the parent or the state must make other custodial arrangements. In some cases, prisoners may even have their parental rights terminated, but when that’s at stake the inmate parent must first be given notice and the opportunity for a hearing. There is no federal constitutional right to be provided with a lawyer during a termination of parental rights proceeding, but many states do provide lawyers for prisoners facing this situation.

28. Must a parent who is paying child support continue to make payments while in prison? Many states require inmates to pay up to 50% of what they earn in prison toward satisfying court judgments like child support or victim restitution. An inmate parent may also be required to make up for any payments missed during the prison term once released and employed. In other states, however, an inmate parent’s child support obligations are suspended and do not have to be paid during the time the inmate is incarcerated.

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Section II: Legal Resources for Prisoners and Their ­Families The following section explains the basics about how prisoners can enforce their legal rights. The section also includes listings of resources that prisoners and their families can use to get more information about prison life.

29. Do prisoners have any recourse when prison officials seek to ­revoke their privileges for ­violating prison rules? Prison officials must normally afford prisoners limited due process before revoking their privileges. This means that officials must provide prisoners with notice of the actions they intend to take and the reasons for them. Inmates can then have a hearing to contest the officials’ punitive actions. These hearings are usually informal. Inmates have no right to a lawyer at these disciplinary hearings, and they may even be restricted from presenting witnesses if doing so would create security or safety problems. Case Example: Mark Oh was found with a sharpened nail file taped to his foot, in violation of prison regulations. Prison officials notified Mark in writing that because of the violation, he would lose all the “good time credits” he had accumulated as a model prisoner (credits that would have gone toward an early release on parole). Mark was told that he could appear before the prison ombudsman to tell his side of the story, but that he would not be allowed to have a

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lawyer present or to call any witnesses on his behalf. Question: Are the prison procedures legitimate? Answer: Probably. Because a nail file could be used as a weapon, prison officials had valid security reasons for revoking Mark’s good time credits. Also, the officials gave Mark written notice and an opportunity to appear at a hearing. If Mark wanted to call a witness who could explain why he had a legitimate reason for carrying the nail file, then prison officials should allow the witness to appear at the hearing unless officials could show that the appearance threatened safety or security.

30. How can prisoners use the courts to enforce their legal rights? Prisoners who believe that the conditions in which they are living are unlawful should normally begin by making a written complaint to the prison administration. The courts often will not consider prisoners’ complaints unless the prisoners can prove that they first tried to resolve their problem within prison channels. Many facilities have complaint forms; if not, a letter will do. A prisoner may also want to send the complaint to the state or federal agency that is ultimately responsible for the facility’s operation. If the complaint fails to remedy the problem, a prisoner may then seek help from the courts. A prisoner can also seek help from a nonprofit prisoners’ rights group.

Prisoners’ rights legal claims can take a variety of forms. A prisoner may file suit in state court under a state’s “Tort Claims Act” to try to recover money damages for personal injuries, perhaps as a result of physical abuse by a guard or another prisoner. A prisoner may file a federal civil rights claim (also known as a “Section 1983” action) to recover money damages for physical injuries or to redress the violation of a federal civil right, such as interference with the right to practice one’s religion. A prisoner’s lawsuit may seek money damages or a court order (called “injunctive relief”) requiring prison officials to take action, such as improving substandard conditions or transferring the prisoner to another facility.

31. Does the right of access to the courts include the right to ­counsel? The right to counsel (meaning the right to assistance from a lawyer, appointed free of charge for those who cannot pay) is guaranteed only through a defendant’s first appeal. So as a general rule a prisoner has no right to counsel for the purpose of filing prisoners’ rights claims. However, judges have the power to appoint lawyers to represent prisoners who challenge conditions of confinement. Generally, a judge will do so only when a prisoner’s complaint raises serious issues that are likely to affect a sizable group of prisoners. One paradox of this approach is that judges may be least likely to find out about and appoint

Chapter 26: Prisoners’ Rights

attorneys for the very prisoners who most need the assistance of counsel, such as those in solitary confinement or those who cannot read or write English.

32. What kind of rules apply to ­prisoners’ lawsuits? The lawsuits filed by prisoners are subject to an array of rules. While some of these rules seem technical or picky, failing to follow them can mean your lawsuit will be delayed—or worse, thrown out completely. For example, a judge may invalidate a claim because the prisoner waited so long to file it that a “statute of limitations” (a rule that sets time limits on claims) ran out. Case Example: Joe is convicted and sentenced to prison in Illinois. An appeals court overturns the conviction on the ground that the police illegally arrested Joe. After the state decides not to prosecute Joe again, Joe files a civil lawsuit against Illinois seeking damages for being falsely arrested. Illinois’ statute of limitation on civil rights claims is two years, and Joe filed his complaint more than two years after the case started. Question: Did Joe file his complaint in time? Answer: No. Joe had two years from the time he was brought into court to sue for false arrest, because at that point the illegal arrest concluded. Because Joe waited more than two years to file his civil lawsuit, the judge was correct to dismiss his complaint (Wallace v. Kato, U.S. Sup. Ct. 2007).

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Prisoners may also have to show they tried to resolve their problems informally within the prison system before going to court (a requirement called “exhausting administrative remedies”). Other rules specify that the prisoner file with the court that has jurisdiction (power) to hear a case, limit the length of documents, and require certain papers to be officially witnessed (“notarized”). Because the rules governing these cases can be complex, prisoners who have funds available are usually best served by hiring lawyers to represent them. Most prisoners cannot afford to hire lawyers, and to make matters worse, most public defender groups are not authorized to represent prisoners whose convictions are final. A limited number of lawyers or prison legal rights organizations provide free (“pro bono”) legal representation to prisoners. Because these resources are scarce, many prisoners represent themselves, which is called filing a case “pro per” (also called “pro se”). Selfrepresenting inmates have to follow the same rules as lawyers, so they should plan on spending as much time as they are permitted in the prison law library researching the legal basis of their claim as well as the technical requirements for filing their case.

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Resources for Prisoners’ Lawsuits Here are some publications for prisoners who are filing a prisoners’ right lawsuit without the help of a lawyer (and for their friends and family if they are helping the prisoner with the lawsuit): • Prisoner’s Self-Help Litigation Manual, by John Boston and Daniel E. Manville (2d ed. Oceana Publication, Inc.); • Represent Yourself In Court, by Paul Bergman and Sara J. Berman-Barrett (5th ed. Nolo); • Rights of Prisoners, by Michael B. Mushlin (3rd ed. Clark, Boardman, Callaghan); and • A Jailhouse Lawyer’s Manual, by the Columbia Human Rights Law Review (6th ed. Columbia Human Rights Law Review). A Jailhouse Lawyer’s Manual provides names, addresses, and other information about prisoner assistance groups across the country. It is available online (www. columbia.edu/cu/hrlr/index.html). In addition, prisoners may purchase both volumes of A Jailhouse Lawyer’s Manual for $45 (the price for non-prisoners is $90) or one volume for $25. A Spanish language edition is available for $15. The website contains an order form and mailing address. The Prison Law Office is a nonprofit office that provides assistance to prisoners in California. The group’s website (www .prisonlaw.com) includes self-help materials on habeas corpus, parole, personal injury claims, HIV in prison, prison staff mis­ conduct, and problems with confinement conditions.

33. Are prisoners supposed to have access to legal materials? Yes. Judges have acknowledged that prisoners’ legal rights may be meaningless unless prisoners have some ability to enforce them. Inmates therefore have a “right of access” to the courts. To comply with this, prisons must provide inmates with either an adequately-stocked prison law library or help from legal assistants. Prisons must also provide supplies necessary to file court documents, such as paper, pens, postage stamps, and sometimes notaries.

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The Restrictions on Prisoners’ ­Litigation Are Increasing

Other Sources of Information on Prison Life

Prisoners’ lawsuits challenging the conditions of their confinement constitute about 10% of all civil cases filed in federal court. Judges and lawmakers increasingly view many prisoners’ legal claims as “frivolous”—that is, unreasonable claims that waste judges’ time. This hostility to prisoners’ claims has led to harsh new limitations on cases brought by prisoners.

Here are some additional places for prisoners and their families to look for information on adjusting to life in prison:

For example, the United States Supreme Court has ruled that a state has no obligation to “enable [a] prisoner to discover griev­ances, and to litigate effectively” (Lewis v. Casey, U.S. Sup. Ct. 1996). Moreover, a federal law known as the Prison Litigation Reform Act (PLRA) cut back on prisoners’ rights to file legal claims in forma pauperis (without paying court filing fees). As a result, prisoners may be required to pay part of the fees when they file and to continue making payments during the remainder of their prison term (drawing on earnings from prison labor). The PLRA also gives federal judges the power to dismiss prisoners’ lawsuits immediately unless the prisoners have “exhausted their prison remedies.” That is, prisoners must try to resolve their grievances by using all the procedures that a prison provides before going to court. However, judges have to consider “exhausted” claims even if prisoners’ lawsuits improperly add new (“unexhausted”) claims. The judges rule on the merits of the “exhausted” claims but ignore the “unexhausted” ones. (Jones v. Bock, U.S. Sup. Ct. 2007) For more information on the PLRA, see The PLRA: A Guide for Prisoners, published by the ACLU’s National Prison Project.

• The ACLU’s National Prison Project publishes The Prisoners’ Assistance Directory, which refers prisoners and their families to helpful support organizations. • The Prison Law Page was an extensive Internet resource on—as they put it—life on “the other side of the wall.” The site is no longer regularly updated, but it still contains numerous articles on prison conditions, health, education, safety, religion, and the death penalty. Readers will also find an extremely detailed dictionary of prison terms. The website is at www.prisonwall.org. • The Federal Bureau of Prisons’ webpage is located at www.bop.gov. • A publication called the Directory of Programs Serving Families of Adult Offenders is available through the website of the National Institute of Corrections. This booklet, which you can download from NIC’s website (iPad mini4 WiFiモデル 64GB シルバー), lists public and private organizations throughout the United States that serve inmates’ families.

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Section III: Parole Parole is the conditional release from prison before the end of a sentence. People on parole (called parolees) remain under supervision until the end of a fixed term, and they normally have significant and strict conditions with which they must comply to remain at liberty. Parolees are supervised by parole department officers; the parole department is usually an arm of the state’s prison agency.

34. What are typical parole conditions? Here is a list of requirements and rules that parolees typically must follow in order to remain at liberty: • report regularly to a parole officer; • report their whereabouts (some parolees are required to wear electronic monitoring devices that track their location); • obtain permission in advance for any travel out of a county; • submit to random searches of their homes, cars, and persons (including blood, urine, and saliva testing, for disease, drugs, or other contraband) • obey all laws; • refrain from using, buying, or selling alcohol or illegal drugs; • avoid certain people, such as victims, witnesses, gang members, or persons with criminal records; • pay money for court-ordered restitution; and • attend classes or counseling sessions, such as court-ordered drug or alcohol treatment classes or anger management classes.

If the parole board finds that the parolee violated his parole conditions, his parole can be revoked, in which case he returns to prison to serve all or most of the remainder of the sentence. If the parolee violates his parole by committing another crime, the parolee can be forced to serve the remainder of the original sentence (as a parole violation) and then serve a sentence for the new conviction.

35. What is the difference between probation and parole? Parole is early release from a partiallyserved prison term, granted by a parole board. The parole board is an administrative agency that is part of the state corrections department. In contrast, probation is imposed by a judge at the time of sentencing, to be served as an alternative to or in addition to a jail or prison term. (See Chapter 22 for more on probation.) There is no parole in the federal prison system; a federal prisoner earns “good time” credits for behaving in prison but still has to serve a minimum of 85% of his sentence.

36. How long can I remain on parole? The length of parole terms vary widely and are a function of the length of time left to serve on the original sentence. Parole may be as short as a year or as long as a lifetime. Upon evidence of good behavior, a parole board may terminate parole before its scheduled end.

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37. Can a parolee relocate? Parole conditions typically prevent a parolee moving from one county to another within the same state without permission from a parole officer. Reasons that might incline a parole officer to grant a request for a move include: • to protect the parolee • to allow the parolee the opportunity to work or study • to permit the parolee to live closer to family members who can aid in a parolee’s rehabilitation, or • to permit a parolee to obtain necessary medical or mental health treatment.

38. Do judges decide when to ­release prisoners on parole? Not usually. Decisions to grant and revoke parole are made by a group of prison officials called a parole board. But in some cases, parolees have the right to appeal the decisions of the parole board to a court, or to a Board of Appeals within the parole agency.

39. What factors do parole boards consider when deciding whether to parole a prisoner? Although the decision to grant parole is ultimately a subjective one, parole boards are usually required to consider a prescribed set of factors in making a parole determination. These factors typically include: • the severity of the original offense and any sentencing recommendations affecting parole;

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• the prisoner’s behavior while incarcerated; • statements submitted by victims; and • a prisoner’s chance for successful reintegration into the community.

40. Can victims affect parole ­decisions? In many states, victims or their surviving family members have a right to be notified that the prisoner who harmed them is eligible for parole and has an upcoming parole hearing. The victims can submit their views to the parole board either in writing or by making a personal appearance at the hearing.

41. What happens if a parolee ­violates a condition of parole? The parole board may revoke parole and order the parolee returned to prison. Before this happens, however, due process entitles a parolee to: • written notice of the alleged violation(s) and of the evidence against the parolee; • a hearing, usually conducted by a hearing officer or parole board and not by a judge. At the hearing, a parolee may present witnesses and other evidence and cross-examine adverse witnesses unless the hearing officer or parole board has good cause not to allow witnesses to appear; and • at the conclusion of the hearing, a written decision setting out the reasons for the parole revocation.

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Parolees facing revocation of their parole often try to cut a deal (sometimes called a “screening deal”) where they give up the right to a hearing in exchange for receiving less prison time than would have been imposed following a complete hearing and revocation decision.

42. Do parolees have a right to ­appointed counsel at parole revocation hearings? No. Parolees may request the court that sentenced them to appoint counsel for a parole revocation hearing. Judges have the discretion to appoint counsel in those circumstances, and they are more likely to do so when facts are seriously disputed or involve complex documentary evidence, or when a parolee is not capable of selfrepresentation because of language or mental deficiencies.

Section IV: Pardons A pardon, also called a grant of clemency, is an order granted to an offender by the chief executive that releases the convicted person from prison and/or from further penalties that result from that conviction.

43. What is “temporary release” and how does it differ from parole? Temporary release allows prisoners to leave prison for a short time to deal with important personal matters. For example, a prisoner might apply for temporary release in order to attend a parent’s funeral. Another reason

for temporary leave is so that prisoners can work days outside of prison and look for housing prior to being formally paroled. Typically, prisoners who are granted temporary release are considered nonviolent, have behaved well while in prison, do not have extensive histories of criminal behavior, and are virtually certain to return to prison in accordance with the terms of their leave.

44. Who has the power to grant ­pardons? Only a jurisdiction’s chief executive has pardon power. A state’s governor has the power to pardon those who have been convicted of state offenses, and the president of the United States can issue pardons for those convicted of federal crimes.

45. What standards must ­governors or the president follow in ­deciding whether or not to grant pardons? Chief executives are accountable only to the political process when making pardon decisions, and those decisions normally are final. Few established standards exist, though many cynics insist that a record of campaign contributions is often a way to influence a chief executive’s decisions.

46. Is “sealing” a criminal record the same as a pardon? No. Sealing criminal records (often called expunging the records) is similar to a pardon in that convicted persons whose records

Chapter 26: Prisoners’ Rights

are sealed may lawfully tell prospective employers that they were never convicted of a crime. Unlike pardons, however, decisions to seal criminal records are made by judges. And typically, someone seeking expungement must wait a period of time after completing a sentence for records to be sealed, whereas prisoners may be pardoned at any time. For information on sealing juvenile court records, see Chapter 25.

47. Can DNA tests show that someone who was convicted many years ago is actually innocent? Yes, and defendants who are cleared by DNA tests are perfect candidates for pardons. (A defendant who obtains a DNA test showing his innocence can also apply for relief by filing a petition for writ of habeas corpus with the courts. For more on habeas corpus, see Chapter 23, Section II.) Some states have passed laws that allow defendants in certain types of cases to demand DNA tests. For information on legal help for inmates challenging convictions based on DNA testing, contact The Inno­ cence Project (see below).

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The Innocence Project The Innocence Project (www. innocenceproject.org) was established in 1992 with the goal of exonerating the innocent through postconviction DNA testing. Since its inception, more than 190 innocent people, including 14 who were at one time sentenced to death, have been exonerated by post-conviction DNA evidence. When DNA testing reaffirms a client’s guilt, The Innocence Project closes the case, and the results of all testing may become a matter of public record. Through federal legislation that The Innocence Project helped bring about, defendants wrongfully convicted in the federal system are entitled to compensation of $50,000 per year of imprisonment in noncapital cases and $100,000 per year in capital cases. Having determined that mistaken eyewitness identification played a role in 75% of the convictions overturned through DNA testing, The Innocence Project has made strides in achieving eyewitness identification reform in a number of U.S. jurisdictions, thus improving identification procedures used by law enforcement and reducing the number of wrongful convictions. For more information, contact The Innocence Project at 100 Fifth Avenue, 3rd Floor, New York, New York 10011.

Chapter 27

Looking Up the Law Section I: What to Research…………………………………………………………………………………566 1. What additional information can I find out about my case by doing some legal research?………………………………………………………………………………….566 2. What laws will tell me more about the crimes with which I am charged and the defenses that might be available?……………………………………………………………566 3. Does the substantive law cover anything other than specific crimes and defenses?…………………………………………………………………………………………..568 4. I’ve been charged with two crimes. Will I be able to find information about both crimes in the same set of books?………………………………………………….568 5. What’s the difference between state crimes and federal crimes?……………………….569 6. What are the rules that tell me how my case will move though the courts, and where do I find these rules?…………………………………………………………………..569 7. Will my local court have any rules I should know about?………………………………..569 8. What are rules of evidence, and where do I find them?……………………………………570 9. Assuming I want to do some research into some legal aspects of my case, where do I start?……………………………………………………………………………………….570 10. How can I ask someone to help me research my case when my lawyer told me not to talk to anyone about it?………………………………………………………….570 11. If it’s necessary to hit the books, where do I start?…………………………………………..571 12. So once I have a dictionary, what do I do next?……………………………………………..572 13. What are legal encyclopedias, and how can they help me research an issue in a criminal case?…………………………………………………………………………572 14. What are “form books,” and how can they help me in my criminal case?…………..573 15. What are “practice guides,” and how can they help me research an issue in my criminal case?………………………………………………………………………574 16. What’s the best way to find the law itself?……………………………………………………..574 Section II: Where to Do Research…………………………………………………………………………578 17. Where can I find a law library?……………………………………………………………………576 18. Is there any research I can do online, on a computer?……………………………………..576 19. Are there any inexpensive online resources?………………………………………………….577 Section III: Glossary……………………………………………………………………………………………577

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N

ot all criminal cases require legal research. Many cases do not involve complex legal questions, but rather a dispute over whose version of what happened should be believed. Some people, however, may want to look further into the law, especially if there is a search and seizure issue in the case, or there is reason to doubt that the charged crime is supported by the facts known to the defense. To facilitate such inquiries, this chapter introduces some basic legal research techniques and commonly available resources. For a more comprehensive guide to conducting legal research, consult the following excellent Nolo resource (which is relatively inexpensive and can often be found in public and law libraries): • Legal Research: How to Find & Understand the Law, by Stephen Elias and Susan Levinkind (Nolo), an easyto-read book that provides step-bystep instruction on how to find legal information.

Section I: What to Research This section offers an orientation to the general categories and terms commonly used by publishers of books dealing with criminal law.

1. What additional information can I find out about my case by doing some legal research? All of the following are different types of rules that may affect a criminal case and that can be researched in most law libraries

(see Section II, below, on how to find a law library): • Substantive law: rules that define crimes (such as murder or extortion) and defenses (such as self-defense); • Rules of criminal procedure: rules that govern the criminal justice process (for instance, when an arraignment must be held and when a case must come to trial); • Constitutional rights: rules that protect person, property, and privacy (like a defendant’s right not to testify); • Rules of evidence: rules that govern the type and amount of proof permissible at trial and other court proceedings (like rules generally barring hearsay and character evidence, discussed in Chapter 18); and • Local rules of court: rules that govern customs and regulations in particular geographical locations, courthouses, or even courtrooms.

2. What laws will tell me more about the crimes with which I am charged and the defenses that might be available? “Substantive” law is the term for rules that govern the heart of a case: the definitions of the crimes with which the defendant is charged and possible defenses to those charges. The term substantive law is used in contrast to “procedural” law, which deals with the rules that govern how cases move through the court system. This book, for example, deals primarily with procedural law, though the first section in Chapter 24 does discuss the substantive law of drunk driving.

Chapter 27: Looking Up the Law

Probably the most important research task dealing with substantive law is to learn the legal elements of each of the charges and possible defenses in a particular case. Once the elements of a crime are understood, it is possible to determine whether the facts in the case support a conviction for that offense. For example, assume that Robert Steven Liefert is charged with burglary. The crime of burglary traditionally has been defined as “the breaking and entering into the dwelling of another in the night with intent to commit a felony inside,” a definition made up of six elements: 1. the breaking 2. the entering 3. into the dwelling 4. of another 5. in the night 6. with intent to commit a felony inside. Under this definition of burglary, if Liefert is guilty of the first five elements but did not intend to commit a felony, he should not be convicted of this offense. In modern times, most jurisdictions have modified this definition of burglary in many respects. For example, they do not limit burglary to houses but include any type of structure, and the crime may be committed at any time of day or night. Lawyers who routinely handle burglary cases would know the current definition of burglary in their state (and if Liefert were representing himself, he would want to research this information). One good place to find the standard elements of common criminal offenses and defenses is a book that contains model

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jury instructions. These instructions, which a judge reads to the jury at the close of trial and which judges use themselves in deciding cases without juries, identify the elements that must be proved in order to convict a defendant for a particular criminal offense. Most law libraries will have statespecific jury instruction books (which a reference librarian can help locate) that set out complete jury instructions for common crimes.

Here are two of the more commonly used jury instruction books: • Federal Jury Practice and Instructions, by Kevin F. O’Malley, et. al. (Thomson-West Publishing, 5th ed. 2000); • Criminal Defense Jury Instructions, by Harry Ackley (Knowles Law Book Publishing, Inc.).

In addition to understanding the elements of a particular crime, it may be necessary to do some additional research about the meaning of abstract legal jargon used to define the elements. What, for instance, does “breaking and entering” really mean? What if Liefert walked into the building by opening an unlocked back door; is that “breaking”? What if he broke a window and reached his hand in to grab something without ever actually going inside; is that “entering”? Case Example 1: Anita Shelter, a homeless person, broke into an abandoned building to get out of the rain.

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Question: Could she be convicted of burglary? Answer: Not under the traditional definition (breaking and entering into the dwelling house of another in the night with the intent to commit a felony inside). The breaking and entering is the act; the intent to commit a felony inside is the mental component. Because Anita’s intent was merely to get out of the rain, she did not intend to commit a felony in the building.

Case Example 2: Same case. Question: What if Anita, once inside, found and then decided to steal a diamond ring. Would she be guilty of burglary? Answer: No. That would not have been burglary either under the traditional definition, since the intent to take the ring was not formed until after the breaking and entering.

To answer these types of very specific questions, you would need to know how the courts in your state have interpreted your state’s burglary statute. Or, if you are charged with a federal crime, you will need to know how the federal courts have dealt with the federal statute in issue. Usually the best way to start acquiring this information is to get an overview from a secondary resource (a discussion of the law by an expert rather than the text of the law itself). Just as a lawyer might, a nonlawyer would probably start by asking the law librarian to suggest an appropriate secondary resource on crimes against property—or burglary in particular. The librarian may suggest consulting a general treatise (reference book) about criminal law, a criminal law treatise for your particular state, a chapter about burglary in a legal

encyclopedia, or some other resource. (More on these below.)

3. Does the substantive law cover anything other than specific crimes and defenses? Substantive criminal law also covers certain legal principles that apply to criminal prosecutions in general. One such principle is that most crimes require that some physical act be taken toward commission of the crime (as opposed to just talking about it) and a frame of mind that is consistent with doing something wrong (called the mens rea, or guilty mind, requirement). Some offenses also require that the defendant’s actions cause a particular result, such as murder, which requires that the defendant’s actions cause the death of a person.

4. I’ve been charged with two crimes. Will I be able to find information about both crimes in the same set of books? A person can, quite naturally, be charged with more than one crime. The substantive laws governing those crimes may or may not be located in the same book or set of books. Example: Yetta Speed was stopped for DUI (driving under the influence), and the police found illegal drugs in her car. Yetta was charged with both DUI and possession of illegal substances. Laws relating to the DUI might be in a “Vehicle” code, section, or title with other laws relating to moving violations, while laws relating to illegal substances might be in a “Health and Safety,” “Criminal,” or “Penal” code, section or title.

Chapter 27: Looking Up the Law

5. What’s the difference between state crimes and federal crimes? States and the federal government both enact criminal laws. Some offenses, like routine drunk driving, would be state crimes, covered by state laws, whereas assaulting a federal officer, like an FBI agent, would likely be a federal offense no matter where it is committed. But, as with many aspects of the law, even these divisions are not so clear-cut. To commit the crime of assaulting a federal officer (18 U.S.C. § 111), among other things, the victim must have been engaged in the performance of official duties at the time of the assault. If the victim was an off-duty FBI agent, the case might well be governed by a state assault statute (law). Also, the same conduct may violate both federal and state laws. A well-known case involving federal and state criminal trials stemming from the same incident involved four California law enforcement officers accused of beating motorist Rodney King. The officers were tried and acquitted in state court on assault charges and were tried and convicted in federal court for having violated Rodney King’s civil rights.

6. What are the rules that tell me how my case will move though the courts, and where do I find these rules? Procedural rules govern the process of criminal justice, before, during, and after trial. Rules of criminal procedure control dozens of details including such things as: • how soon after arrest a suspect must be arraigned;

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• whether a prosecutor must conduct a preliminary hearing or may seek an indictment from the grand jury; and • when a jury trial must be requested. Procedural rules for criminal cases may be grouped together in a particular chapter, title, or section of general laws under a heading called “Criminal Procedure.” Some states have conveniently separated rules into collections of books called “codes.” In these codes, there may be a separate code of criminal procedure. In other states, people must look up the rules they need in what’s called a general index to statutes. The federal courts use the Federal Rules of Criminal Procedure. Again, reference librarians in law libraries are usually most helpful in pointing folks in the right direction.

7. Will my local court have any rules I should know about? Local court rules also affect procedure, and they can be critical to effectively defending a case. Local rules can govern many details, even things like how many copies of legal documents must be submitted and the type of paper required. These may sound like picky little details, and they are. But they are details that you must follow. Local rules also vary; even different counties within the same state can have different rules. People can usually obtain a copy of local rules of court from the courthouse law library, the Clerk’s Office, or the court clerk or law clerk to a particular judge.

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8. What are rules of evidence, and where do I find them? Evidence rules govern how the defense and prosecution are to present the testimony of witnesses and exhibits they attempt to introduce into evidence, and what types of information qualify to be admitted as evidence in a trial. Chapter 18 explains the most frequently-encountered rules of evidence and refers to particular federal rules of evidence. To get an idea of how typical evidence rules are worded, the federal rules are good starting places for research because they have been adopted or used as a guideline in over half the states. But the defense must be familiar with the rules for its specific state and how courts in its state have interpreted these rules. Again, law librarians, upon request, will direct people to the appropriate rules of evidence.

9. Assuming I want to do some ­research into some legal aspects of my case, where do I start? Many people faced with the need to do legal research start by floundering for hours through mostly useless material. Fortunately, there are often better and quicker ways to ferret out the sought-after information. One standard method is to ask a human being who is likely to know the answer. Even lawyers like to start research projects by asking their colleagues or law librarians for ideas. And, just as doctors rarely go to family or social events without being asked to diagnose illnesses off the top of their heads, so too are lawyers routinely solicited by friends and family for “quick” answers to legal inquiries.

If you don’t have a human being to ask, or need a more detailed answer than you can get from one, probably the best place to start your research is a specialized reference book (such as those described below in Question 15) that explains and organizes the substantive law or procedural law.

10. How can I ask someone to help me research my case when my lawyer told me not to talk to anyone about it? Because of the potential consequences in a criminal case (where the defendant’s liberty and sometimes life is at stake), defendants, as well as their friends and family, must be very careful about whom they talk to about the case. For instance, it is possible that a prosecutor might attempt to find out even from a law librarian who helped the defendant do some research whether the defendant said anything to indicate guilt. Defendants who reveal confidential information to a librarian or, for that matter, to anyone other than their lawyer, also risk destroying the confidential nature of whatever they’ve said in the past to their lawyer. (See Chapter 8 for more on the confidential nature of lawyer-client communications.) With those warnings in mind, the following people may be helpful in certain respects: • Law librarians. Law librarians, who usually have extensive legal training, can be most helpful in pointing out and helping locate resources such as legal forms, reference books explaining particular areas of law, rules of evidence and procedure, court cases, and statutes.

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Both for the confidentiality reasons discussed above and because it’s not a librarian’s job, people should not ask or expect a law librarian to do research for them or provide legal advice. Librarians can, however, help find and sometimes explain how to use many important research tools. • Courtroom and courthouse clerks. Clerks at the court where a case is pending can sometimes be very helpful, especially when it comes to procedural details. They can provide routine (but nonetheless essential) details such as the time court starts and where bathrooms and cafeterias are. They may also help people obtain copies of documents such as court rules, legal forms, and jury instructions. Clerks are sometimes hostile to people they view as wasting the court’s time, however, such as people representing themselves and those perceived as asking for legal advice. But asking how to get forms and court rules is not seeking legal advice. Whether asking where the bathroom is or how to fill in a subpoena form, people should try to be especially polite to clerks. They are used to dealing with so many rude and pushy people that someone who is polite may well stand out and have a much better shot at being treated respectfully in kind. • A self-help legal coach. Consulting a lawyer doesn’t always have to mean hiring the lawyer to handle the whole case. It may be possible to find a lawyer to give you research tips as you need them. (See Chapter 7 for more on legal coaches.)

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11. If it’s necessary to hit the books, where do I start? It might help to start with a good legal dictionary. Legal jargon can seem like a foreign language—called “legalese” by some. Though it is not easy, or for that matter even necessary, to become fluent, it does help to at least be comfortable with certain essential legal terms. Many such terms have been defined throughout this book, and there is a glossary of criminal law terms in Section III of this chapter. But people may still want to consult a legal dictionary both for words not defined here or for more detailed explanations. It is obviously crucial to understand unfamiliar terms. But it can also be important to review familiar terms, because they may have different connotations in legalese. For example, many people think of being “robbed” as having their possessions stolen. Let’s say Lisa and her husband Steve come home from a wedding only to find their front door kicked in, furniture broken, and TV missing. Lisa says “Steve, we’ve been robbed!” While perfectly appropriate in everyday terms, their house had actually been “burglarized.” For them to have been robbed, the perpetrator would have to have taken their property directly from them, while they were present, using actual force or intimidation that placed them in fear. The difference may seem like word play, but it can be critical. Since robbery is an offense against person as well as property, robbery typically carries a stiffer sentence than burglary, a crime against property only.

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Readable dictionaries. While many lawyers use Black’s Law Dictionary (West Publishing Co.), the following dictionaries may be easier to understand: • Law Dictionary, by Stephen Gifis (Barron’s); • Dictionary of Legal Terms: A Simplified Guide to the Language of Law, by Stephen Gifis (Barron’s); • Law Dictionary for Non-Lawyers, by Daniel Oran (Delmar Publishing Co.); • Law Thesaurus-Dictionary, by William Statsky (West Publishing Co.); and • Dictionary of American Legal Usage, by David Melinkoff (West Publishing Co.).

12. So once I have a dictionary, what do I do next? There are many legal reference books that summarize and explain court cases, statutes, and other rules of law, and these reference books can be important legal research tools. They may provide particular answers (or cite to other helpful resources) or give the big picture. Either way, they are often a good place to start a research project.

Publications That Explain the Law Are Not the Last Word Explanations and conclusions in encyclo­ pedias or treatises (resource books covering a whole subject such as drunk driving or search and seizure) are not binding law. Rather, they are the opinions of the authors, and authors—even learned scholars—may be wrong. Also, because law can change very quickly, the information may be out of date. Even if the author is right and the information is up to date, a judge in any given case is not required to follow what the author says (true even for the authors of this book!). Rather, the judge is bound only by the law itself, the statutes, and court opinions that speak to the facts of the particular case. Rather than rely on the experts, you will be wise to look up the original law sources (statutes and cases) yourself or double-check with a lawyer. Still, there’s no question about it; background reference sources are good places to start.

13. What are legal encyclopedias, and how can they help me research an issue in a criminal case? Legal encyclopedias—organized alphabet­ ically by topic with a detailed index at the end of the last volume, like regular encyclopedias—cover virtually every aspect of the criminal justice system. Each entry not only summarizes the law, but also refers to the statutes and cases that provide the legal basis for the entry. Although any given encyclopedia entry may offer a general discussion of the legal principles involved in that particular subject area, crime, or

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defense, they seldom are specific enough to actually provide an answer. But they can help someone totally unfamiliar with an area of law gain an understanding of the important issues, perhaps suggesting further research in more specifically-focused sources.

Encyclopedias. The two main national law encyclopedias are American Jurisprudence (Am. Jur.) and Corpus Juris. They include broadly based discussions on the laws of all 50 states. Both are now in their second series, so cites are to “Am. Jur. 2d” and “C.J.S.” (Corpus Juris Secundum). Many of the larger states have their own encyclopedias as well, for example: • Pennsylvania Law Encyclopedia; • New York Jurisprudence 2d; • Encyclopedia of Georgia Law; • Florida Jurisprudence; and • California Jurisprudence 3d.

14. What are “form books,” and how can they help me in my criminal case? Form books are collections of sample legal documents. They include fill-in-the-blanks documents, which can be copied and filled in with appropriate information. Sometimes, they have to be customized to fit the circumstances of a particular case. Some states provide their own fill-in-the-blanks forms, available for small sums of money at local courts. Court clerks, law librarians, and lawyers can help locate form books and court-approved forms. Form books can help in preparing legal paperwork such as

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subpoenas, pretrial motions (requests to the judge; see Chapter 19), and stipulations. Form books also usually explain the procedural background for each form. They can provide helpful explanations of the laws that have to be followed and instructions for completing the forms, and they often refer to other resources for further information. Forms can help the following kinds of defendants: • Represented defendants. Looking at forms can give represented defendants a feel for how other lawyers draft certain documents, to see how they compare to what their own lawyers have drafted and possibly to clarify questions they want to ask their lawyers; • Defendants doing much of the work themselves but hiring a legal coach on an as-needed basis. These defendants can consult forms to do a first draft of a motion, for example, and then have their coach edit the motion rather than draft it from scratch. Some lawyers may find this helpful, while others may find it easier and cheaper to draft such a document from scratch; and • Self-represented defendants. By reviewing a form, they avoid having to reinvent the wheel.

Some form books are: • Federal Procedural Forms (Bancroft Whitney/Lawyers Coop); • Florida Criminal Procedure (Bancroft Whitney/Lawyers Coop); • New Jersey Criminal Procedure (Bancroft Whitney/Lawyers Coop);

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• Criminal Law of New York (Bancroft Whitney/Lawyers Coop); • Texas Criminal Practice Guide (Matthew Bender); and • West’s California Criminal Defense Motions Forms Manual (West Publishing Co.).

15. What are “practice guides,” and how can they help me research an issue in my criminal case? In addition to all the other types of resource books discussed in this chapter, lawyers often consult guide books—sometimes called practice guides or manuals or “continuing legal education” (CLE) materials. These guides, published by and for lawyers, include practical tips, suggestions, and forms in areas of state and federal law practice. They cover a huge variety of subjects, such as drunk driving, grand jury practice, criminal appeals, and many more. Practice guides are available in many states, and some publishers gear their materials specifically toward lawyers in particular states. For example, the Practicing Law Institute (PLI) gears some materials toward New York lawyers, and the Rutter Group and Continuing Education of the Bar (CEB) toward California lawyers.

Some practice manuals: • Trial Guidelines for the Defense of Criminal Cases (ALI); • Defense of Drunk Driving Cases (Matthew Bender); • Prosecution and Defense of Criminal Conspiracy Cases (Matthew Bender);

• Defending a Federal Criminal Case (Federal Defenders of San Diego, Inc.); • Representation of Witnesses Before Federal Grand Juries: A Manual for Attorneys (National Lawyers Guild); • West’s California Criminal Procedure, by Laurie L. Levenson (West Publishing Co.); and • West’s California Criminal Trial Book (West Publishing Co.).

16. What’s the best way to find the law itself? The law itself consists of constitutional provisions, statutes, court cases, municipal ordinances, and administrative regulations.

a. State and federal statutes Statutes are rules enacted by federal and state legislatures. Statutes are sometimes called acts or, simply, laws. State statutes are generally grouped by subject matter for the purpose of publication. Most sets of state statutes take up many volumes, but are divided into “codes,” “chapters,” or “titles,” which are in turn divided in sections and subsections. Federal statutes are published in the United States Code. As are some state collections of statutes, the U.S. Code is divided into titles and sections. Each statute has a particular number, called a citation or cite. With citation to a statute (for example, from this or another Nolo book or a treatise, encyclopedia, or practice manual), one can easily find the statute. For example, the crime of assaulting a federal officer is

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mentioned above (in Question 5) followed by the number (citation) 18 U.S.C. § 111. To find this statute, one would look in Title 18 of the United States Code (U.S.C.) and then find the volume of that title containing Section 111. Books containing collections of statutes include an index in the last volume that has references to the location of particular statutes according to their subject matter. To use a subject matter or topical index, it helps to think of a number of possible headings for the particular subject (for ideas, review headings in a treatise or encyclopedia or ask a librarian). If the statute doesn’t appear under the first logical heading, it pays to keep searching or perhaps consult a legal dictionary for related words or phrases. Legal subjects also overlap, so helpful information may be listed under more than one heading. For example, laws a reader might want to review that relate to protecting a defendant who has been subjected to a police search may be located under any or all of the following (or other) headings: “Search and Seizure” (or either separately), “Fourth Amendment,” or “Exclusionary Rule.” When looking at collections of statutes, it is helpful to use the annotated versions if these are available. Annotated collections of statutes contain the language of the statute along with short summaries of the significant court cases (including their legal citation for easy reference; see below) that have interpreted the statute, and references to other resource books and articles that have discussed the law. In order to read and make sense of a statute once it’s been found, it is important to:

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• Understand all the terms, by looking them up in a legal dictionary or, especially in longer statutes, looking in the beginning part of the statute for definitions of terms used in other parts of the law; and • Check that the statute is current. Statutes are often revised and sometimes repealed. So, after finding a statute in the main section of a hardbound collection of statutes, one should look in the paperbound supplement or update (called a “pocket part”), usually located inside the back cover of the book. Pocket parts contain the changes that have been made to a law or its wording since the publication of the hardbound volume. Some pocket parts are also annotated with references, for example, citations to recent cases discussing a statute.

b. Court cases Sometimes, higher (appellate) courts review the record and decisions of lower (trial) courts, and interpret the meaning of statutes, constitutional provisions, and other court cases. These interpretations commonly make up what’s known as “common law” (judge-made law). These appellate court interpretations are documented in written decisions (called opinions, case law, or cases). The typical court opinion includes a summary of the facts that the trial judge or jury found to be true, the actual decision at which the appellate court has arrived in the appeal (called the “holding”), and the legal reasoning for that decision.

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The written decisions of appellate courts (cases) are collected and published in hardbound volumes called “reporters,” “reports,” or “case reports.” There are many separate reporters for different courts and geographical areas. For example, a case from the New York Court of Appeals may be published in a series of state reporters called New York Appeals and also in a regional reporter series called Northeastern Reporter, which includes cases from several states. Federal cases are published according to the court that decided them. For example, decisions by the U.S. Courts of Appeal are collected in the Federal Reporter. At present in its third series, this is called Federal Reporter, Third Series (which readers may see cited as “F.3d”). Recent cases, not yet included in a hardbound reporter, are located in softbound supplements. And cases decided in the last few days or weeks may often only be available from the appellate court itself or a computer reporting service—although, as discussed in Section II, below, courts in most states now publish recent decisions on the World Wide Web or on a publicly-accessible bulletin board on the Internet. To look up a new case, one just mentioned in the newspaper, for example, ask a librarian for assistance; it won’t yet be in the hardbound books. Cases, like statutes, have citations to make them easy to find. Let’s say someone wanted to read the famous case that produced a rule requiring police to read suspects their rights before conducting any in-custody questioning, Miranda v. Arizona (discussed more thoroughly in Chapter 1). Reading this book or an encyclopedia,

treatise, or legal dictionary, readers see mention of Miranda followed by the citation, 384 U.S. 436 (1966). The first number means the case is located in volume 384. The letters in the middle (U.S.) are the abbreviation for United States Reports, the case reporter series where the Miranda case is published. The last number indicates that the case begins at page 436. The names reflect the parties to the lawsuit (Ernesto Miranda was the defendant who appealed; the people of the state of Arizona were the prosecution who opposed the appeal). The date at the end is when the United States Supreme Court decided the case.

The Numbering System for Reporters Case reporters are published in numbered volumes. After a series accumulates years of numbered volumes, the publisher starts over with another series. So, you may find a cite to a 2d or 3d series. For example, People v. Gray, 254 Cal. App. 2d 256 (1967), is at volume 254 of the California Appellate Reports, second series, beginning on page 256.

In addition to the full text of the court’s opinions, reporters include “headnotes,” short summaries of the legal issues in a case. Headnotes are numbered in the order in which the issues are discussed in a case. They can be quite useful, both for a quick look at what a case is about and as a table of contents to help locate other issues of interest. But headnotes are not written by the judge or judges who wrote the opinion; they are written by the reporter’s editors.

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They can be inaccurate and are not “law,” so they should not be quoted when making an argument to a judge without first reading the actual decision of the court. Once court cases are published, they are usually not removed from the books even if later courts conclude that the decision is no longer correct. Thus, before relying on a case, people should always verify that the case is still “good law,” meaning that it has not been overruled by a later case. A series of case histories called Shepard’s Citations for Cases reports the status of published cases. Law librarians—or one of the reference sources mentioned above—can help explain how to use Shepard’s. Shepard’s can also be helpful in locating more recent cases that discuss (but don’t overrule) a particular case.

What Rules Judges Must Follow Sometimes it can be confusing to know which rules a judge has to follow. Primary authorities (statutes, cases, administrative regulations, and local rules and ordinances) can be mandatory, which means that a court has to follow them. But they can also be just “persuasive,” which means a court can consider them but does not have to follow them. For example, a state court in New York may find it helpful and convincing that a California court recently decided the same legal question that is now before the New York court. But the New York court does not have to follow the California court’s decision. Judges must, however, follow the decisions of higher courts in their own state. For example, a Los Angeles trial judge must follow a decision of the California Supreme Court (the highest state court in California), but a trial judge in Alabama doesn’t have to.

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When researching cases, it is thus best to find an appellate court case from the same state (or circuit in the federal court system) where one’s case is to be heard. But if the only case available is an out-ofstate case that is nonetheless right on point (on the same legal issue with similar facts) and very helpful, it may be worth trying to convince the judge that the out-of-state court’s reasoning should be persuasive.

c. State constitutions and the U.S. Constitution The U.S. Constitution is the supreme law of the land, which means all state and federal laws must comply with it. State constitutions provide the same effect for state laws, but state constitutions must also comply with the U.S. Constitution. Courts decide whether or not laws comply with constitutional provisions. Courts also interpret what constitutional provisions mean, just as they interpret statutes. Again, a law librarian may be able to point out a helpful resource on constitutional law. But because constitutional law is often complex, it may be very helpful to first consult a lawyer for assistance.

d. Administrative regulations Administrative regulations (“regs”) are enacted by federal, state, and local agencies. For example, the Equal Employment Opportunity Commission, Veterans’ Administration, state board of medical quality assurance, or state department of motor vehicles all make their own rules. Administrative laws govern agencies’

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policies and procedures, such as how they conduct hearings and why they grant or withhold benefits and privileges (such as licenses). Some criminal cases involve both court hearings and hearings before an administrative agency. For example, in some places defendants charged with DUI will face court proceedings for the criminal statutes they are charged with violating, and administrative proceedings to suspend or take away their driver’s licenses. A doctor who assaulted a patient may have to appear in court on criminal charges and may be called before an administrative agency regarding license suspension or revocation. Someone charged with such an offense may want to research the rules governing the administrative agency, because although an administrative hearing may resemble a court case, in reality it is quite different. For example, most agencies do not follow the rules of evidence, there is no right to a jury, lawyers may be excluded, a defendant may not be able to subpoena witnesses or documents—or even have witnesses testify— and hearings may not be open to the public.

Section II: Where to Do Research This section is about where you can find and read the various resources described in Section I.

17. Where can I find a law library? The best place to do legal research is in a law library. In some states, finding a well-

stocked law library that is open to the public is no problem; at least one library will be at a principal courthouse in every metropolitan area. But in other states, courthouse libraries are nonexistent or inadequate, and the only decent law libraries open to the public will be located at a publicly funded law school. Some private law schools also open their law libraries to the public, at least for limited hours. For simple legal research tasks, a public library may be a fine place to start. The main branch of a nearby public library may have a small but helpful legal section, which includes a compilation of the state’s criminal laws. Another possibility is to ask for permission to use an attorney’s law office library.

18. Is there any research I can do online, on a computer? Yes. Many legal sources that traditionally have been published in law books are also now available online. Two major private systems, Lexis and Westlaw, maintain online databases of court cases, statutes, legal articles, and a host of other resources (nationwide and even some worldwide). These providers usually charge for the amount of time spent online, which can get quite expensive, especially for those not familiar with the system. These companies do have toll-free numbers for information and research assistance that are very helpful. But, generally speaking, people new to legal research may do better with books than with such expensive online research. A lower-priced Internet legal research resource is now available, called VersusLaw

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(www.versuslaw.com). You can find an extended discussion of this service in Nolo’s book Legal Research: How to Find & Understand the Law. In addition to these expensive systems, it is increasingly possible to use free or lowcost services on the Internet to find statutes, cases, and background resources. (See Question 19.)

19. Are there any inexpensive online resources? Many legal reference sources are now becoming available on the World Wide Web. Statutes from many states are now online, as are federal statutes, regulations, and rules. Internet sites also link users to courts, to local district attorney and public defender offices, to prosecuting and defense lawyers’ organizations, and to the FBI, the Department of Justice, the ACLU, and more. Some Web pages have crime victims or prisoners as their target audience; others aim at more general audiences. Several websites also link users to many of the interesting criminal justice resources currently available online. These can be located by plugging words such as “criminal law,” “criminal justice,” “crimes,” “prisoner’s rights,” and “victim’s rights” into a search engine (such as www.google.com). Some of the sites that point users toward helpful criminal resources at the time of this printing include (not in any particular order): • Cecil Greek’s Criminal Justice Page at www.criminology.fsu.edu/cjlinks; • Jeff Flax’s Legal Resource Page at www.jflax.com;

• A law locator on the net called FindLaw also has a detailed criminal law section. Contact www.findlaw.com; • The Association of Federal Defense Attorneys at www.afda.org; • The Vera Institute at www.vera.org; • The Tennessee Criminal Law Defense Resources at www.tncrimlaw.com; • The National Organization for the Reform of Marijuana Laws at www .norml.org; • Cornell University has a helpful resource called the Legal Information Institute, which has among other resources a free listing of U.S. Supreme Court cases and criminal codes from a number of states, at www.law.cornell.edu; and • Materials, including sample Motions and Briefs, are available on the website maintained by the Massachusetts Association of Criminal Defense Lawyers (www.macdl.com).

Section III: Glossary This section contains simple plain-English definitions of selected criminal law words and phrases, and sometimes also provides examples of the use of the words and phrases (“context of use” examples). You may use this glossary as a minidictionary for a quick understanding of terms commonly used in the criminal justice system. You may want to consult the book’s index for further information, as well as the legal dictionaries listed in Section I of this chapter. Abuse excuse: A type of self-defense claim with which defendants seek to justify

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their actions by proving that they were subjected to years of prolonged child or spousal abuse. Accessory after the fact: A person who takes an active role in concealing criminal activity that has already taken place. (“Jake was convicted of being an accessory after the fact because he destroyed evidence of Steve’s failed kidnap attempt.”) Accessory before the fact: A person who aids criminal activity but is not present when it is committed. (“Jake was convicted of being an accessory before the fact for helping his friend Steve to plan a kidnapping.”) Accomplices: Partners in criminal activity. Acquit: A judge or jury “acquits” a defendant by finding the defendant not guilty. Acquittal: A finding by a judge or jury that the defendant is not guilty. Action: Another word for a lawsuit. While the term may be more commonly used in civil lawsuits, a criminal action simply means a criminal lawsuit brought by the prosecution against a defendant. Administrative agency: A government department charged with enforcing laws and developing regulations. For example, the Department of Homeland Security is a federal agency that enforces laws relating to public safety, and it has the power to develop regulations.  Administrative law judge: A judicial officer who presides over cases brought by an administrative agency. Admissible evidence: Evidence that a trial judge can consider or can allow a jury to consider when reaching a verdict.

Admission: A defendant’s out-of-court statement offered into evidence against the defendant by the prosecution as an exception to the hearsay rule. Adversary: Party on the opposite side of a legal case. Opponent. Typically, in a criminal case, the prosecution and the defense are the adversaries, each on either side of the case. Affidavit: A written statement of facts and assertions made under oath. Affirmative defense: A type of defense that a defendant has to assert and support with evidence, such as self-defense or alibi. Aggravated offense: A crime that is made more serious because of the way in which it was committed. (“Simple assault” may become “aggravated assault” if the attacker uses a deadly weapon.) Alibi: A defense that asserts that the defendant could not have committed the crime in question because the defendant was somewhere else at the time the crime was committed. (“Defendant Evelyn has a strong alibi. The entire Martinez family can testify that Evelyn was picking her kids up from Linda’s house, and therefore could not have committed the bank robbery.”) Allegation: In a formal written criminal complaint, a prosecutor’s claim that a defendant violated the law. The term can be used informally to refer to oral claims as to how events occurred. (Context of use: “The guard alleged that the prisoner had a weapon.”) Anticipatory search warrants: Search warrants that police obtain before contraband arrives at the location to be searched.

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Appeal: A request to a higher court to review the rulings or decision of a trial court judge. Decisions by courts of appeal often are made by three judges. Appeals in criminal cases rarely revisit the facts of the case, but rather are mostly concerned with errors of law or procedure. Appellant: The party who brings an appeal to an appellate court. Appellate court: A higher court that reviews the decision of a lower court. (“The appellate court reviewed and overturned the decision of the trial court to exclude the evidence of Officer Neustadt’s use of racial epithets.”) Appellee: The party who responds to an appeal brought by an appellant. Appointed counsel: A lawyer who represents indigent defendants at government expense. Argument: A persuasive presentation by the prosecution or defense to the judge or jury that supports the prosecutor’s or defendant’s case. Arraignment: Often a defendant’s first court appearance, in which the defendant is formally charged with a crime and asked to respond by pleading guilty, not guilty, or no contest. Other matters often handled at the arraignment are arranging for the appointment of defense counsel and the setting of bail or other conditions of release pending final disposition of the case. Arrest: An arrest occurs when the police (or a citizen making a citizen’s arrest) detain a person in a manner that makes it clear she is not free to leave, and continue to hold her for the purpose of bringing criminal charges against her.

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Arrest report: A report prepared by an arresting officer summarizing the circumstances leading to the arrest. (“Julia Daniels went to the police station to obtain a copy of the arrest report so that she could compare her story to the police’s account of her arrest.”) Arson: The unlawful burning of a building. Assault: A crime often defined as either an attempt to batter (unlawfully touch) someone, or intentionally placing a person in fear of an immediate battery. Attempt: Starting but not completing an intended criminal act. Attempts are crimes, often punished less severely than completed crimes. Attorney: Another name for a lawyer. Attorney work product: Legal work, including the lawyer’s research and development of theories and strategies, that is considered to be privileged or confidential and therefore not available for review by the other side. Authenticate: To identify an object at trial. A defense lawyer or prosecutor “authenticates” an exhibit by offering testimony that tells the judge what the exhibit is, where it came from, and its connection to the case. Bail: Money paid to the court to ensure that an arrested person makes all required court appearances. If not, the bail is forfeited. Bail bond: A guarantee given to a court by a bail bond seller to pay a defendant’s bail should the defendant fail to appear in court. The bail bond seller charges the defendant (or whomever obtains the bond) a nonrefundable premium of approximately

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10% of the amount of bail as a condition for making this guarantee. Bailiff: A uniformed peace officer who maintains order in the courtroom and performs other courtroom duties, such as escorting defendants in custody to and from a courtroom, attending to the needs of a jury, and handing exhibits to witnesses. Bar: Initially, a partition in courtrooms dividing the space where judges sit from the area where the public may sit. Typically the term now refers to lawyers as a group. Lawyers are called “members of the bar,” and often belong to professional organizations called “bar associations.” Another meaning of the word “bar” is to prevent something from happening in court. (“Because the defendant did not give early enough notice of his intention to present evidence of an alibi, the defendant will be barred from presenting such evidence at trial.”) Lastly, attorneys may sometimes call a case “the case at bar,” meaning this particular present case, to distinguish it from some past or future case. Battery: The uninvited touching of another person. Battery is usually a misdemeanor, although it becomes a felony if the touching results in—or is intended to cause—serious injury. (“Lorne Cooper committed a battery by striking career counselor Chip Donalds in the face with a leather briefcase.”) Bench: A judge’s courtroom chair and desk. “Bench” is also a substitute term for “judge.” For example, a defendant might ask for a “bench trial,” meaning a trial by a judge without a jury. Best evidence rule: An evidence rule that restricts a witness from orally testifying

to the contents of a document unless the document is produced in court. This rule is also frequently used to require production of the original document rather than a copy. Beyond a reasonable doubt: The burden of proof that the prosecution must carry in a criminal trial to obtain a guilty verdict. Bill of Rights: The first ten amendments to the U.S. Constitution—those primarily dealing with rights of individuals. For example, among those rights guaranteed by the Bill of Rights are the right to remain silent (to not incriminate oneself) and the right to a jury trial. Blue card warnings: The name police use for Miranda warnings in some locations. Booking: The procedure in which a jail records pertinent information, often including a mug shot and fingerprints, about a person who has been arrested and placed in the jail’s custody. Bounty hunter: Person who chases down defendants who have skipped bail, and turns them in. Brief: A legal document, written to the judge by the prosecution or defense, consisting of a persuasive statement of fact and law that supports that side’s position on one or more issues in the case. Can also be used as a verb, “to brief,” meaning to write this type of persuasive statement. (“Judge Shupe asked counsel to brief the issue of whether the police officer’s personnel record should be admitted into evidence, and ordered that their briefs be submitted by 10:00 A.M. the following morning.”) Burden of proof: The requirement that the prosecution convince the judge or jury that the defendant is guilty beyond a reasonable doubt of each and every

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element of the crime(s) charged. In a criminal case the burden of proof always rests with the prosecution, except that, in many states and in federal courts, the defendant has the burden to prove an insanity or alibi defense. Burglary: The crime of breaking into and entering a building with the intention to commit a felony. The breaking and entering need not be by force, and the felony need not be theft. For instance, someone would be guilty of burglary if he entered a house through an unlocked door in order to commit a murder. For more on burglary, see Chapter 12. Business records exception: An exception to the hearsay rule that allows a business document to be admitted into evidence despite its being hearsay if a proper foundation is laid to show that it is inherently reliable. Calendar or court calendar: Cases a particular judge will hear on a given day. (Context of use: “Dorit’s arraignment was on calendar for July 12 at 9:00 A.M.”) Capital crime or offense: A crime that can be punished by death or life in prison. Caption: A heading on all pleadings (legal documents such as the criminal complaint or information and briefs in support of motions) submitted to the court that indicates basic information such as the defendant’s name, the court, and the case number. Case: One meaning for the word case is a criminal action or lawsuit. “Case” also refers to a written decision by a judge, found in books called Case Reporters or Reporters. A party’s case, or case-in-chief, also refers to the evidence that party (either the

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prosecution or the defense) has submitted in support of their position. Certiorari: An order (known as a “writ”) that a higher court (such as the U.S. Supreme Court) will exercise its discretion and review a lower court’s ruling. Challenge: A prosecution or defense request for the judge to excuse (dismiss) a potential juror—or to remove him or herself as judge (called a recusal) because of a conflict of interest. Challenge for cause: A claim made during jury voir dire that a potential juror is legally disqualified from jury service— usually because of factors that would prevent the juror from being fair to one side or the other. Chambers (also called judge’s chambers): A judge’s private business office, often located adjacent to the courtroom. (“Judge Elias asked counsel to meet in chambers to discuss the possibility of a plea bargain before trial.”) Charge(s): Formal allegation or accusation of criminal activity. (“The defendant, Ira Benjamin Rogers, is hereby charged with murder in the first degree.”) Circuit Courts (or Circuit Courts of Appeals): The name used for the principal trial court in many states. In the federal system, appellate courts are organized into 13 circuits. Eleven of these cover different geographical areas of the country—for example, the United States Court of Appeal for the Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The remaining circuits are the District of Columbia Circuit and the Federal Circuit, (which hears patent,

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customs, and other specialized cases based on subject matter). The term derives from an age before mechanized transit, when judges and lawyers rode “the circuit” of their territory to hold court in various places. For more information, see Chapter 23. Circumstantial evidence: Evidence that proves a fact by means of an inference. (“From the evidence that Victor Michaels was observed running away from the scene of a crime, a judge or jury may infer that Victor was the person who committed the crime.”) Citizen’s arrest: An arrest made by a private citizen, in contrast to the typical arrest made by a police officer. Citizen’s arrests are lawful in certain limited situations, such as when a private citizen personally witnesses a violent crime and then detains the perpetrator. City attorney: A lawyer who works for and represents a city, and who in certain circumstances has the authority to bring criminal prosecutions. Civil: Noncriminal. Civil lawsuits are generally between two private parties, whereas criminal actions involve government enforcement of the criminal laws. (“After a car accident in which Bob’s car hit Steve’s car, the state brought criminal charges against Bob for driving under the influence. Later, in a separate civil suit, Steve sued Bob for personal injuries and damages to Steve’s car stemming from the same accident.”) Clear and convincing evidence: The burden of proof placed on a party in certain types of civil cases, such as cases involving fraud. Also, in some jurisdictions, a defendant relying on an insanity defense

must prove that defense by clear and convincing evidence (even though the ultimate burden of proof as to guilt remains with the prosecution). Clear and convincing is a higher standard than preponderance of the evidence, the standard typical in most civil cases, but not as high as beyond a reasonable doubt, the burden placed on the prosecution in criminal cases. Clerk’s office: The administrative office in a courthouse where legal documents are filed, stored, and made available to the public. (“The defendant’s attorney, Lisa Stevens, stopped by the clerk’s office on her way to court to get a copy of the prosecution’s motion to request a witness list.”) Closing argument (also called final argument): A persuasive presentation made by the prosecution and the defense to the judge or jury at the conclusion of a trial, arguing how, given the law and the evidence presented, that particular side should win. (“In closing argument, the public defender convinced the jury that the prosecutor had not proven all the elements of the charges against the defendant beyond a reasonable doubt.”) Common law: Law that judges create in the course of issuing appellate court decisions. Common law is often contrasted with statutory law, which is enacted by legislatures. As a general rule, crimes are defined by statutory law while many aspects of criminal procedure are shaped by the common law—often consisting of U.S. Supreme Court decisions that interpret the U.S. Constitution’s Bill of Rights. Community service: Unpaid work that benefits the community and that may be

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required of a convicted defendant as an alternative to a jail sentence. Complaint: A pleading or legal document prepared by the prosecutor’s office that formally charges the defendant with a crime or crimes. This initial charging document is also sometimes called an information. Concurrent sentences: Sentences for more than one crime that defendants serve at the same time. Confession: A voluntary statement by an accused, orally or in writing, in which the accused admits guilt of a particular crime or crimes. (“After being promised leniency by the police (who did not actually have authority to ensure a light sentence), Colleen O’Larky confessed to having embezzled funds from her employer, Duncan Enterprises.”) Consecutive sentences: Sentences for more than one crime that defendants serve in sequence (that is, one after another). Conspirators: Two or more people who join together to commit a crime. Contempt of court: Behavior, punishable by fine or imprisonment, in court or outside of court, that obstructs court administration, violates or resists a court order, or otherwise disrupts or shows disregard for the administration of justice. Contingency fees: A method of compensating a lawyer for legal services in which the lawyer receives a percentage of the money the client is awarded at the close of a civil trial or by a settlement in a civil case. Contingency fee arrangements are not permitted in criminal cases. Continuance: A delay in a scheduled court proceeding. The prosecution and defense can request a continuance when

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they want the court to postpone a deadline. Contraband: Property that is illegal to possess or transport. Conviction: A finding of guilty following a trial or plea bargain. Corpus delicti: Literally, the “body” of the crime. This Latin phrase refers, for example, to the corpse in a murder case or the burned building in an arson case. Costs (also, court costs): Expenses of trial other than attorneys’ fees, such as fees and costs for filing legal documents, witness travel, court reporters, and expert witnesses. Counsel: Attorneys or lawyers (also called counselors). To counsel means to advise. County attorney: Prosecuting lawyer for county government. Court: A government building where criminal and/or civil cases are heard. Can also mean the judge; for example, if the prosecutor says she does not wish to waste the court’s time, the prosecutor actually means the particular judge to whom the prosecutor is speaking. Court clerk: A court employee who assists a judge with the many administrative tasks of moving cases through the court system. For example, the court clerk may prepare and maintain the judge’s calendar, retrieve case files from the main Clerk’s Office, administer oaths to witnesses during trial, and prepare orders and verdict forms. Sometimes the court clerk is referred to as the “courtroom clerk” to distinguish her function from that performed by the “courthouse clerk.” Court-martial: A military criminal trial. Court reporter: The person who records every word that is said during official court proceedings (hearings and trials) and

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depositions, and who prepares a written transcript of those proceedings upon the request of the judge or a party. (“Judge Ellis ordered counsel to speak slower so that the court reporter, Victoria Shirley, could effectively transcribe what counsel said.”) Credibility: Believability. (“The credibility of witness Joe Pepsi was put in grave doubt when he testified that he only drank Coca-Cola.”) Crime: A type of behavior that has been defined as warranting some type of punishment by the state, usually including imprisonment. Crimes, and the punishments for committing the crimes, are defined by Congress and state legislatures. Criminal: Colloquial for people who commit crimes and referring to courts, attorneys, and procedures that are involved in the process of charging and trying a person for a crime. Cross-examination: The prosecution’s or defense’s opportunity to ask questions of the other side’s witnesses, including the defendant if she chooses to take the stand and testify. (“The prosecutor Kris Dawden cross-examined the maid who said she’d seen the defendant’s car parked in his driveway at the same time the defendant’s ex-wife was murdered.”) Culpability: Guilt. Culpable: Guilty or blameworthy. (“Many people felt there was no doubt that Johnny Miller was culpable in the murder case brought against him.”) Culprit: Can mean either the person accused or the person found guilty of committing a crime. Curfew: A law requiring minors to get off the streets after a certain hour at night.

Custodial interrogation: Police questioning of an arrestee. See Chapter 1. Damages: Money that civil courts award to compensate those who have been injured or lost property through another’s wrongdoing. (Many crimes can result both in criminal penalties and money damages.) Defendant: A person who has been formally charged by the prosecutor or grand jury with committing a crime. In civil cases, the defendant is the party who has been sued by the person initiating the lawsuit (the plaintiff). Defense: (1) A defense(s) is the accused’s answer stating why he should not be found guilty of a crime. For example, an alibi defense is a defense that states that the defendant could not have committed the crime in question because she was physically in a different location from where the crime occurred. (2) The defendant’s team, including the defendant, defense lawyer(s) and her assistants, investigators, etc. Defense lawyer: Person who speaks and acts on behalf of the defendant. Deposition: More common in civil cases and severely limited (in some states prohibited) in criminal cases, a deposition is a pretrial discovery (formal investigation) tool in which a party (or her lawyer) asks a series of oral questions of another party or witness. The questions are answered under oath and transcribed by a court reporter. Determinate sentences: Sentences for fixed terms, such as for “36 months.” Offenders may be released on parole before they have finished serving their sentences. Dicta: Language in appellate court decisions that indicates judges’ attitudes but

Chapter 27: Looking Up the Law

is unnecessary to case outcomes. (Context of use: “The statement in the judge’s written appellate court opinion that drug use is the country’s biggest threat was dicta.”) Direct examination: The initial questioning of a witness by the party (prosecution or defense) who has called that witness. Discovery (in criminal cases): The procedures used by the defense and prosecution to find out before trial what information the other side has and intends to use if the trial takes place. As a general rule, the defense is entitled to discover more information than is the prosecution (because of the Fifth Amendment rule against mandatory self-incrimination), and in all cases discovery is much more limited in criminal cases than in civil cases. Dissenting opinion: An appellate court judge’s written reasons for disagreeing with the outcome of a case. Judges may prepare dissenting opinions in the hope of influencing judges in higher courts or in future cases, or to encourage legislators to change laws. District attorney (also called D.A. or prosecutor): The prosecuting lawyer who works for and represents the local county government in criminal cases. Although district attorneys sometimes also represent state governments, more often such prosecutors are called “state’s attorneys.” Diversion: An alternative procedure in which the case is handled outside of the court instead of under the regular criminal justice procedure. Typically, a person who agrees to be diverted will escape criminal charges altogether if he stays out of trouble for a specific period of time and cooperates

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in whatever rehabilitation activities are made available. Diversion is usually only available for very minor crimes and drug offenses when rehabilitation appears to be possible. Docket: (1) A formal record of all the legal documents that have been filed—and court proceedings and orders that have taken place—in a particular case. (2) A calendar or list of all the proceedings on a court’s agenda. Double jeopardy: A rule from the Fifth Amendment to the U.S. Constitution that prohibits a defendant from being twice put in jeopardy (typically, made to stand trial) for the same offense. There are some exceptions to this rule, and it usually only takes hold when the first juror has been called in a trial. Due process: A constitutional requirement (from the Fifth and Fourteenth Amendments) guaranteeing procedural fairness when the government seeks to deprive people of property, liberty, or life. Elements of a crime (also called legal elements): Component parts of crimes. For example, “Robbery is defined as (1) the taking and carrying away (2) of property of another (3) by force or fear (4) with the intent to permanently deprive the owner of the property.” Each of those four parts is an element that the prosecution must prove to satisfy its burden of proof. Entrapment: The act by police or their agents to induce a person to commit a crime for the purposes of prosecuting that person for that induced crime. For more information, see Chapters 13 and 17. Evidence: Information presented to a judge or jury, including the testimony of witnesses, documents, and exhibits that bear on the question of guilt or innocence.

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Ex parte: One-sided. A contact with the judge by one party outside the presence of the other party is considered an “ex parte contact” and is generally forbidden unless it concerns a routine scheduling matter that doesn’t relate to the substance of the case. Ex post facto law: A law that attempts to punish behavior that was not illegal when the behavior took place; such laws are generally unconstitutional. Excited utterance: An exception to the hearsay rule that finds an out-of-court statement to be inherently reliable if it is made about a startling event while the person making the statement is experiencing that event. Exclusionary rule: A judge-created rule that evidence that police seize illegally is generally inadmissible at trial. Exculpatory evidence: Evidence that points toward a defendant’s innocence. Prosecutors are required to automatically hand over such evidence to the defense, even if the defense doesn’t request it, and a showing that this rule was violated can sometimes result in a conviction being reversed. Exhibit: A tangible object presented to the judge or jury during trial to help the prosecution or defense establish its case. Expert witness: A person who, because of her special knowledge or training, is permitted to offer an opinion about a set of facts when testifying before the judge or jury. Nonexpert witnesses, by contrast, usually may only testify as to their firsthand observations. Expunge: Destroy, erase, blot out. Some states will expunge or destroy arrest records, for example, once a certain number of years has passed following the arrest.

False arrest: A tort (a civil as opposed to criminal wrongdoing) that alleges that a person was unlawfully detained. (“Michael Gleiberman sued Officer Torchin for false arrest some weeks after all charges against Gleiberman were dropped. Gleiberman had obtained evidence that Torchin had no probable cause to arrest. Torchin had only arrested Gleiberman because Gleiberman had been having an affair with the wife of Torchin’s best friend, Marcus Lesser.”) Felony: Serious crime (contrasted with misdemeanors and infractions, less serious crimes), usually punishable by a prison term of more than one year or in some cases by death. People convicted of felonies also frequently suffer other punishments, such as not being able to vote and not being allowed to own or possess a firearm. Fifth Amendment right against selfincrimination: The constitutional right of every person to remain silent when being questioned by the police and—as a criminal defendant—to not take the witness stand at trial or other court proceedings. Forfeiture: Forfeiture laws authorize the government to seize property that was used in connection with certain kinds of criminal activity. For instance, the government may take away the boat a drug dealer used to transport heroin. Forgery: The act of altering or falsifying a document with the intent to defraud someone. For example, Chipeco committed forgery by altering her birth certificate in order to secure a fake ID. Foundation: A set of facts explaining the origin of evidence such as documents and photographs, thereby establishing their authenticity. Before admitting these and

Chapter 27: Looking Up the Law

similar items into evidence, the judge will require that the party trying to admit them establish an adequate foundation. Frivolous motion: A motion that is made without legally valid grounds, such as a motion that is designed solely to delay proceedings. Grand jury: A group of 15–23 citizens selected for court service to decide, based on the prosecutor’s evidence, whether or not there is probable cause to charge a defendant with a crime or crimes. Guilty: (1) One of the pleas a defendant may enter in response to being charged with a crime. A guilty plea admits the charges and subjects the defendant to punishment for them. (2) The state of being found guilty (culpable, the opposite of innocent) by a judge or jury. Habeas corpus: Literally means “you have the body.” A habeas corpus writ (court order) is an order by a court ordering the governmental authority (for example, a prison warden) holding a person in custody to bring that person into court so that the person may challenge the legality of the custody. Harmless error: A trial judge’s mistake that an appellate court decides did not have an impact on a case’s outcome. Hearing: A court proceeding before a judge, typically much shorter than a trial. (“Judge Doherty told her clerk that she had four hearings scheduled before 10 A.M., an arraignment, a preliminary hearing, a hearing on a motion to exclude illegally seized evidence, and an ex parte hearing for the police requesting a warrant for the arrest of one Gil Davids.”) Hearsay: An out-of-court statement offered in court to prove the truth of what

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that statement asserts. As a general rule, hearsay cannot be used as evidence. However, there are so many exceptions to the hearsay rule that many knowledgeable observers comment that “hearsay is admissible unless there is no exception to the general rule.” Holding: The rule for which an appellate court opinion stands. Holding pens or holding cells: Courthouse jail cells (also called lockups and sometimes bullpens) where defendants who are in custody and who are appearing in court are forced to wait. After their court appearance, such defendants are taken back to the regular jail where they are being held. Hostile witness (sometimes called an adverse witness): A witness so hostile to the party who called him or her that crossexamination is permitted. ID: Identification. Can be used as a verb (for example, to ID the perpetrator) or as a noun (for example, the victim made a positive ID). Immunity: Freedom from prosecution. Prosecutors often grant (give) one defendant immunity as an incentive to testify against another defendant. Prosecutors can also force immunized defendants to testify because if they don’t, they can be held in contempt of court. Impanel (sometimes spelled empanel): The act of assembling a panel (group) of prospective jurors for jury selection. Impeach: To discredit. To “impeach a witness’s credibility,” for instance, is to discredit that person’s believability.

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In camera: Court session that is closed to the public, not in open court, often conducted in the judge’s chambers. Inadmissible: When evidence offered by a party is ruled inadmissible by the judge, that means it is not allowed to become a part of the court record and may therefore not be considered as evidence against the defendant. Incompetence to stand trial: Lacking the mental ability to understand or participate in legal proceedings. A defendant may be sane at the time a crime was committed yet incompetent to stand trial, or vice versa. Indeterminate sentences: Sentences for an unfixed period of time, such as “five years to life.” A parole board often decides how long an offender given an indeterminate sentence actually serves in prison. Indigent (indigency): Poor. In criminal cases, the court will appoint a public defender or private lawyer to represent defendants who are so poor that they do not have the money to hire their own private lawyers. In some courts, defendants who have too much money to qualify for a public defender or court-appointed counsel but not enough money to hire a private lawyer may be considered “partially indigent” and allowed appointed counsel for a reduced fee. Information: The term commonly used for the initial document filed in court by the prosecutor that charges a defendant with one or more crimes. Inquest: Investigation. Coroners, fire marshals, and legislative agencies, for example, all may have authority to investigate criminal cases, conducting what are known as “inquests.” (“When arson was suspected at the Grand Theater, the fire

marshal was called in to conduct an inquest to determine the cause of the fire.”) Insanity: A mental disease or defect that sufficiently interferes with a defendant’s ability to control his actions or appreciate the nature of his act that the defendant is not considered to be legally responsible for his criminal acts. Interrogatory: Question. The term “interrogatories” usually refers to a set of questions a party to a lawsuit asks of the other party, witnesses, or other people who might have helpful information during the period of time before trial called “discovery.” Interrogatories are more commonly used in civil cases. Irrelevant: Not related to. Information that is not logically related to the main issues in the case may not be considered by the judge or jury—whichever is hearing and deciding the case—and may not therefore be introduced into evidence. Jail: The place where people convicted of minor crimes and defendants awaiting trial are held in custody. Those convicted of more serious crimes usually end up in prison. Jeopardy: Subject to being convicted of a crime. The Constitution prohibits being twice placed in jeopardy for the same crime. See double jeopardy. Judge: A public officer who presides over court hearings and trials. Sometimes the words “bench” and “court” are used to mean “judge.” Jurisdiction: A court’s geographic power and legal authority to hear a particular type of case. (“In California, the Superior Courts for each county are authorized to grant divorces if at least one of the divorcing

Chapter 27: Looking Up the Law

parties is a legal resident of the county.”) Often the term is used interchangeably with state. (“In some jurisdictions all felonies are initiated by grand jury proceedings, while in other jurisdictions they are initiated by a prosecutor’s information or complaint.”) Juror: A person selected to serve on a jury. Jury: A group of people who decide the facts of the case and render a verdict, typically guilty or not guilty, on specific criminal charges defined by the judge in jury instructions. (See also grand jury.) Jury instructions: Legal rules given by the judge to the jury. The judge typically gets some of these rules from jury instruction books—which contain the standard rules given by other criminal courts in that state— and rules that are custom-drafted by the prosecution and defense for the particular facts of the case. Jury selection: See voir dire. Juvenile: A minor, typically a person under 18, although for criminal law purposes, some states consider juveniles to be 16 and under and decide on a caseby-case basis whether people between ages 16–18 are juveniles entitled to special treatment as such. Juvenile court: Special court where actions involving juveniles are handled. (See Chapter 25 for more on this subject.) Larceny: Another word for theft. Although the definition of this term differs from state to state, it typically means the taking of property belonging to another with an intent to permanently deprive the owner of the property of its possession. (“Joe was originally charged with larceny, but he escaped conviction when he convinced the

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jury that he had just borrowed the car and was intending to return it. He was, however, convicted of joyriding, which doesn’t require an intent to permanently deprive the car’s owner of the car’s possession.”) Law clerk: An assistant to a judge, typically a recent law school graduate, who helps the judge with tasks like researching the issues and drafting court opinions or decisions. Some lawyers also hire law students or recent law graduates whom they call “law clerks” to assist with research, witness interviewing, and other tasks. Lawyer (also called attorney): Person who speaks and acts on behalf of a party. In every state, lawyers are either licensed or certified by a state organization typically consisting of and run by lawyers. With some exceptions, only lawyers may appear in criminal courts to represent defendants. The exceptions consist of programs that allow law students—under supervision of a lawyer—to represent people accused of minor crimes. Lawyers are sometimes called “counsel.” (“Judge Fels announced that she would continue the arraignment so that the accused may consult counsel before entering a plea.”) Leading question: A question that suggests the answer, often a statement asked as a question. (Wanting to make sure the witness provided the right answer, the lawyer asked the witness, “That was your coat tangled in the bush when the murder was committed, wasn’t it?”) Legal Aid lawyers: See public defenders. Lesser included offense: A crime that is made up of some but not all of the elements of a more serious crime. For example, residential burglary (a felony) typically is

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defined as breaking and entering into the home of another with the intent to commit a crime inside. Trespass (a misdemeanor) is the unauthorized entry onto the property of another. Since every burglary necessarily involves a trespass, trespass is a lesserincluded offense of burglary. Liable: A legal conclusion that an offender is civilly responsible for a victim’s losses, the civil equivalent of “guilty” in the criminal justice system. (“Bob not only was convicted of aggravated assault, but he also was found liable civilly and ordered to pay the plaintiff $10,000 in damages.”) Lineup: A procedure in which the police place a suspect in a line with a group of other persons and ask an eyewitness to the crime to pick the person he saw at the crime scene out of the group. If the suspect is selected and later charged with the crime, the fact of the lineup identification may be introduced as evidence. Local rules: Rules adopted by specific courts or specific regions regulating aspects of case administration. Local rules sometimes modify state and federal rules. They can affect how plea bargaining happens, how hearings are conducted, and the procedures used at trial. Understanding them may be critical to presenting an effective defense. Loitering: A crime best understood as just hanging out. (“The police instituted a policy of arresting all those people hanging around the boardwalk after 9:00 P.M., for either curfew or loitering violations.”) L.W.O.P.: A life prison sentence, literally “life without parole.” Magistrate: A court official who acts as a judge in certain (often lower level) court proceedings. (“Officer Edwin Barry went

before Magistrate Talia Nin to request a warrant for Mimi’s arrest.”) Malice: Typically, a willful or intentional state of mind to bring about some injury or wrongdoing. Malice can sometimes be found in other ways, such as where someone’s actions show recklessness (extreme lack of care). To be found guilty of certain crimes, such as murder, the state must prove malice or (for first degree murder) malice aforethought. Manslaughter: The crime of killing a person but without the malice (evil intent) required to classify the killing as murder. Marshal (sometimes spelled marshall): A law officer who is empowered to enforce certain court rulings and orders. The federal government has U.S. marshals, and some states have marshals (similar to sheriffs). Memorandum of Points and Authorities: See brief. A document that cites (refers to) legal authorities such as statutes and court cases, and explains how those authorities support the position advocated by the party who wrote the memorandum. Often written to support a motion. Mens rea: Mental component of criminal liability. Typically, to be guilty of a crime, a defendant must be found to have committed the act (called “actus reus”), and to have the requisite (required) criminal intent or mens rea (mental component such as recklessness or malice). Miranda warning: A warning that the police must give to a suspect in custody before interrogating (questioning) the suspect if the police want to use the suspect’s answers as evidence in a trial. The Miranda warning requires that the suspect be told that she has the right to remain silent, the right to have an

Chapter 27: Looking Up the Law

attorney present when being questioned, the right to a court-appointed attorney if a private attorney is unaffordable, and the fact that any statements made by the suspect can be used against her in court. Misdemeanors: Crimes, less serious than felonies, punishable by no more than one year in jail. (The defense lawyer told the defendant, You were, as you know, originally charged with possession and sale of marijuana, a felony, but I got the D.A. to agree to simple possession, a misdemeanor—time served, a fine, and a couple hundred hours of community service—if you plead today. What do you think?’”) Mistrial: A trial that ends before the full proceeding has been completed because of some prejudicial error or wrong that has occurred. (“When the judge heard evidence that the D.A. had spoken with several jurors during court recesses, the judge declared a mistrial, and the defendant’s case was reset for trial.”) Motion: A request to the court for an order or ruling. Some motions are made orally, others in writing. Depending on the ruling sought, a motion can be made before, during, or after trial. (“The defense made a motion to suppress the lineup based on the grounds that police conduct made the identification impermissibly suggestive.”) Motion for a continuance: See continuance. (“The D.A. and defense lawyer, still engaged in plea negotiations, jointly made a motion to the court for a continuance, which the court immediately granted. The trial was consequently recalendared approximately 45 days later.”)

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Motion in limine: A request for a court order excluding irrelevant or prejudicial evidence in advance of it being offered in open court, typically made in jury trials. Movant: Party making or bringing a motion. Moving party: See movant. Mug shot: Photo taken of the defendant, typically by police, during the booking proceeding after arrest. Mugging: To be mugged has two meanings: (1) to be robbed, or (2) to have your “mug shot” or photo taken during booking. Murder: The unlawful killing of another person when the killing (1) was deliberate and lacked legal justification, or (2) the result of wilful behavior that disregarded the inherent risk to human life (such as shooting a firearm into an inhabited building), or (3) occurred while the defendant was committing an inherently dangerous felony (called the “felony-murder rule”). Most states divide murder into three degrees, with first degree murder being the most serious offense and third degree murder (often called manslaughter) being the least serious of the three. No contest: A plea entered by the defendant in response to being charged with a crime, whereby the defendant neither admits nor denies guilt of the crime, but agrees to submit to punishment (usually a fine or jail time) as if guilty. The reason why this sort of plea is typically entered is that it often can’t later be used as an admission of guilt if a civil trial is held after the criminal trial.

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Nolo contendere: See no contest. Comes from the Latin meaning, “I will not contest it.” Not guilty: A verdict that the defendant has not been proven guilty of the offense charged—issued by a judge or jury after trial. Although a not guilty verdict is often taken to mean that the judge or jury finds the person innocent, it really only means that the judge or jury were unable to find the defendant guilty. Notice: Notification. To give someone notice of a court hearing is to let them know when and where it will take place and other basic information they need to adequately prepare for it. Notice of Motion: A document that notifies an adversary about when and where a motion will be made, what the reason for the motion is, and what supporting documentation will be relied on in making the motion. Objection: Taking exception to or not agreeing with some statement made by or document filed by an adversary. Typically refers to the response the prosecution or defense makes in court when they don’t want some testimony or exhibit admitted into evidence during trial: they then “make an objection.” Off-the-record remarks: Comments by judges and/or lawyers made in court or in other formal settings such as depositions that are intended to be private and therefore do not become part of a case’s official record. Opening statement: A statement made by an attorney or self-represented defendant before the evidence is actually introduced to preview the evidence and set the stage for the trial. Many people think of the opening

statement as a kind of roadmap to the rest of the proceedings. Opinions: Appellate court judges’ written explanations for and justifications of their decisions. O.R. (own recognizance): A way the defendant can get out of jail, without paying bail money, on the defendant’s promise to appear in court when next required to be there. Sometimes called “personal recognizance.” Order: A ruling or decision by a court. A court order can be made orally or in writing. In a judge trial, a verdict of guilty may be written up as a court order. Overrule: Deny. When the judge overrules an objection, the judge denies the objection and the evidence objected to is allowed in. Own recognizance: See O.R. Party (parties): The prosecution and the defendant or defendants are the parties to a criminal case. Percipient witness: A witness who perceived the facts she testifies about. A percipient witness is an ordinary witness, as contrasted with an expert witness who may testify—because of the wittness’s special knowledge or training—about things she did not actually observe. Peremptory challenge: An opportunity to challenge (dismiss or excuse) a potential juror during jury selection without having to give a reason. Parties each get a limited number of peremptory challenges. (“The defense lawyer, Loretta Nay, used one of her three peremptory challenges to excuse (dismiss) Juror number 1, Janet Alan, because of a hunch that Janet would be sympathetic to the police.”)

Chapter 27: Looking Up the Law

Perjury: A crime committed by lying while under oath (while testifying during trial, on a sworn affidavit or in a deposition or interrogatories). Petitioner: A party who makes a formal written request to a higher court asking it to review the ruling of a lower court. Petty theft: Taking property valued less than a certain amount specified by statute (in some states $500). Where the property is worth more than that amount, the crime would be considered “grand theft.” Plea: The defendant’s formal answer to criminal charges. Typically, defendants enter one of the following pleas: guilty, not guilty, or no contest. Although this plea may be entered at any time during the case, or not at all, it usually comes shortly before the case is scheduled to come to trial. Plea bargaining: The negotiation between defense and prosecution (and sometimes the judge) of the settlement of a criminal case. (“Defendant Charlie Keith got a lighter sentence when prosecutor Ronnie Mick agreed to plea bargain the assault charges to disturbing the peace (a less serious offense) in exchange for Keith’s guilty plea.”) Pleading: Written document setting out the criminal charges. Points and Authorities: See Memorandum of Points and Authorities. Prejudice: Bias or discrimination. Prejudicial error: A wrong decision by the judge that in retrospect deprived a convicted defendant of a fair trial and therefore justifies a reversal of the case by an appellate court. (“Judge Pickholtz made a prejudicial error by allowing Officer Janus to describe the cocaine that he had seized from the defendant’s apartment. The

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seizure had previously been found to be an unconstitutional violation of the defendant’s Fourth Amendment rights, and therefore no mention of the illegally-seized evidence at trial should have been permitted. Because the jury’s verdict may have been influenced by the mention of the cocaine, the error was prejudicial and the verdict should be reversed and a new trial ordered.”) Preliminary hearing: A court proceeding in which the prosecution must present enough evidence for the judge to justify holding the defendant to answer for the crime(s), or the case is dismissed. If the case is dismissed, charges may be refiled. Preponderance of the evidence: The burden of proof in most civil actions (amounting to something more than 50%). Contrasted with the much higher prosecution burden in criminal cases, beyond a reasonable doubt. Present sense impression: An exception to the hearsay rule that finds out-of-court statements presumptively reliable and therefore admissible if they are made about an event while or just after the event occurs (since the party making the statements wouldn’t have time to fabricate them). Presentence report: A written summary of an investigation conducted by a probation officer, social worker, or psychologist working to help the judge determine a defen­dant’s sentence. (“At the direction of Judge Shelly, the probation officer Nettie Solomon prepared a presentence report that included the circumstances of the crime, the defendant’s personal history, including past criminal record, and statements from the victims and one witness.”)

596 Criminal Law Handbook: Know Your Rights, survive the system

Presumption of innocence: One of the most sacred principles in American criminal justice, which holds that a defendant is innocent until the prosecution proves each element of the crime charged beyond a reasonable doubt. Pretrial conference: A meeting between the prosecutor, the defense, and (usually) the judge before trial to identify undisputed facts, share witness lists or any other required reciprocal discovery, and sometimes try to settle (plea bargain) the case. Pretrial conferences may be conducted by the judge in or out of court. Pretrial motion: A request to the court made before trial for an order or ruling. Typical pretrial motions include a motion for continuance, motion to strike a prior conviction, motion to exclude evidence that was illegally seized, or evidence of lineup that was unfairly conducted. Prior inconsistent statement: A procedural rule that allows certain out-ofcourt statements to be admitted into evidence for the purpose of discrediting a witness by showing that the witness gave a contradictory account of something on a prior occasion. (“The defense lawyer impeached (discredited) the witness at trial with a prior inconsistent statement the witness made under oath at the preliminary hearing.”) Priors: Past convictions, no matter how old. Privileged: Confidential. (“Counsel objected to the prosecutor’s asking the witness, Dr. Davids, to reveal a discussion he had with his patient, the defendant Madhu Rose, on the grounds that the conversation was ‘privileged.’”)

Privileges: Legal rules and principles that keep certain information confidential and thus out of court or discovery proceedings. Some common privileges include confidential communications made to a spouse, doctor, lawyer, psychotherapist, or clergyperson. Pro bono: Legal services performed pro bono or on a pro bono basis are done for free or a reduced fee. (Comes from the Latin “pro bono publico,” meaning “for the good of the public.”) Because most criminal defendants are entitled to be represented by lawyers paid by the state, few lawyers offer pro bono criminal defense services. However, if the media takes an interest in a case, private lawyers will sometimes step forward and offer pro bono representation because of the media exposure they’ll receive. Pro per (also pro se): Self-represented. A Latin term used by lawyers and court personnel for someone who represents him or herself in court without a lawyer. Pro se (pronounced “pro say”): Same as pro per. Probable cause: Reasonable basis or justification for certain actions by the police that occur early on in the criminal process. Probable cause is more than a mere hunch but not so much as to be convinced beyond a reasonable doubt (the greater standard for conviction at trial). (“Even though Officer Charles was not convinced that Sally Victors murdered Greta Gaspar, the fact that she had the opportunity to do so and owned a handgun of the same type as that used in the murder provided probable cause to arrest Sally on murder charges.”)

Chapter 27: Looking Up the Law

Probative: Probative evidence is evidence that tends to prove or disprove some contested issue. The terms probative and relevant are very close in meaning, but as a general rule evidence that arguably is relevant may still be considered not probative because it doesn’t really help the judge or jury decide contested facts. Procedural law (also called procedure): Laws or rules that govern the method of how a criminal case is administered and tried in court. Procedural rules are contrasted with rules of “substantive law” that define the rights and duties of parties, and the elements of particular crimes and defenses. Prosecution: (1) To prosecute, or the prosecution of a case, means to bring a criminal case against a defendant. (“Upon the capture of the serial killer A. Tilla, D.A. Shelly Shulam announced that her office would prosecute Tilla swiftly and to the limits of the law.”) (2) The prosecution can also refer to the government’s team (the defense team’s adversary). (“Judge Diana Rogers said that after h ­ earing the defense argument on the motion in limine, she wanted to hear the prosecution’s response.”) Prosecutors (often called D.A.s): Lawyers who work for the government to bring and litigate criminal cases. Public defenders (in some jurisdictions called Legal Aid lawyers): Lawyers paid by the state or county to work full time representing indigent or poor clients who are assigned to them by the local courts. Quash: Nullify. (“The prosecutor moved to quash (requested that the judge render null and void) the defendant’s subpoena of breathalyzer calibration records from the lab.”)

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Rap sheet: A defendant’s arrest and conviction record as maintained by one or more criminal justice agencies. (“At the defendant’s sentencing hearing, the prosecutor argued that the punishment should be severe in part because the defendant’s rap sheet stretches from his arm (held high above the prosecutor’s head) to the floor.”) Reasonable doubt: Lingering doubt following serious consideration of a matter; not just any possible doubt. (“The jury refused to convict defendant Sims, contending that despite significant prosecution evidence, they still had reasonable doubt that he committed the murders.”) Reasonable doubt is the same thing as not being convinced of a defendant’s guilt beyond a reasonable doubt. Rebuttal evidence: Evidence offered to contradict evidence presented by the adversary. Recess: A break in a hearing or trial. Reciprocal discovery: Laws in some states that require the prosecution and defense to exchange certain information before trial, such as lists of all witnesses to be called at trial and reports of any expert witnesses. As a general rule, the prosecution has to give the defense more than the defense has to give the prosecution, because the defense’s right to not turn over evidence is to some extent protected by the Fifth Amendment right against self-incrimination. Reckless (or child) endangerment: A crime consisting of putting another person at risk of serious injury or death. Record: The official written transcript of court proceedings and evidence in a

598 Criminal Law Handbook: Know Your Rights, survive the system

case. When something goes on the record, it appears in the official transcript. If some aspect of the case is off the record, such as a brief procedural question at sidebar (the judge’s bench), it will not appear in the official transcript. Recross-examination: Additional crossexamination of witnesses called by an adversary on redirect examination. Recuse or recusal: When a judge takes herself off a case because of a conflict of interest, the judge is said to recuse herself and the act is considered a recusal. Redact: To delete or cover up part of a document because it refers to inadmissible evidence. Redirect examination: Additional direct examination questions of a witness by the party who called that witness just after that witness has been cross-examined by the adversary. Regulations: Rules made by administrative agencies. Relevancy: A connection or applicability to the issues in the case. Relevant evidence is evidence that helps to prove or disprove some fact in connection with the case. Relief: A party’s desired legal remedy. (“The prisoner sought relief in the form of an order requiring the prison cafeteria to provide vegetarian meals.”) Respondent: The name for the defendant (responding party) in cases where the plaintiff is called a “petitioner.” Response (or Responsive Pleading): A general term for a legal document in which a party responds to an adversary’s pleading, motion, or brief. Retainer agreement: Contract between a lawyer and client.

Sanctions (to sanction): Penalties (often fines) imposed by the court on one or both of the parties for improper conduct during the case. Seal: To conceal from public record. In some instances, for example, a person’s arrest or criminal records may be sealed, meaning without a court order to inspect them they may not be viewed. (“The criminal record of crimes defendant Cyndi Summer committed as a juvenile was sealed.”) Sentence: The full panoply of punishments that a judge metes out in a criminal case. (“Judge Deyda sentenced Defendant Laney Su to five years in state prison after the jury convicted Su on drug charges.”) Sentencing guidelines: Laws that either suggest (permissive) or dictate (mandatory) the sentence a judge is required to give for specific crimes. Standing: To have legal standing is to have a sufficient stake in a legal dispute to have a right to go to court and ask for legal relief. (“The passengers in Rich’s car did not have standing to complain about the way that the police officer searched Rich’s pockets.”) Statute: Law enacted by a legislature, often contrasted with common law (judgemade law). Statute of limitations: The legal time limit in which criminal charges can be filed against a defendant for a particular crime. A few crimes, such as murder, do not have a statute of limitations, and the statute of limitations for criminal acts against children typically is much longer than for crimes against adults.

Chapter 27: Looking Up the Law

Stipulation: An agreement between parties. For example, the prosecution and defense may stipulate to the admissibility of certain testimony or an exhibit. (“Defense and prosecution lawyers met to negotiate a plea bargain and stipulated to continue the next scheduled court hearing to permit further discussions.”) Stop and frisk: A police officer’s brief and limited pat down of a person’s outer clothing; an intrusion that is less invasive than a full-scale “search.” Strike: To delete testimony from the official court record. (“In the rape trial of defendant, when the witness began recounting the victim’s past sexual history, the prosecutor immediately moved to strike the witness’s testimony, and the motion was granted.”) S.U.: Straight up. When a prosecutor writes “s.u.” on a defendant’s file, it may mean the prosecutor will not plea bargain the case. Subpoena (subpena): A court order compelling someone to appear in court. Subpoena duces tecum: A court order compelling someone to appear in court and bring along with them certain tangible objects or documents. Substantive law: Rules defining crimes and rights and duties of parties (as opposed to procedural laws, which govern case administration). Suspended sentence: A sentence (punishment) that the judge hands down but does not require the defendant to serve right away or at all if certain conditions—such as successfully completing probation—are met.

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Sustain: Uphold. When a judge sustains an objection, it is upheld and the evidence objected to is not allowed in. Testify: To give testimony. Testimony: Evidence given under oath, in court or in a deposition. Time served: The time a defendant spends in jail awaiting resolution of his or her case. If convicted, the time served may be credited toward the ultimate sentence. Tort: A legal claim of civil (noncriminal) wrong (other than a breach of contract), often referred to as a personal injury. Some actions, such as assault and battery, can be both crimes and torts. Transcript: A written record of a court proceeding or deposition. Treatise: A legal reference book, usually covering an entire legal subject. (“As part of preparing the defense case, the defense lawyer consulted a respected treatise on drunk driving defense.”) Trial: The in-court examination and resolution of a criminal case. (“My lawyer, Kate Johnson, told me that my case probably won’t go to trial because more than 90% of criminal cases are settled by plea bargains before they go to trial.”) Trial notebook: A notebook or binder lawyers set up to help them organize their case. U.S. attorneys: Prosecutors for the federal government. Vacate: To overturn a lower court’s decision. (“The state Supreme Court vacated the guilty verdict after deciding that the trial judge had not allowed the defendant a sufficient opportunity to cross-examine the police officer.”)

600 Criminal Law Handbook: Know Your Rights, survive the system

Venue: The geographic area in which a court has authority to hear a case. Verdict: The jury’s (or judge’s in a judge trial) final decision in a criminal case: guilty or not guilty. Voir dire: The process of questioning and selecting a jury. The judge, the prosecution, and the defense all question potential jurors for the purpose of deciding whether the jurors will render a fair verdict. Waive: Give up. (“Marguerite Lorenzo waived her right to a jury trial after deciding a judge would likely be more sympathetic than a jury would be to her defense that the breathalyzer machine malfunctioned.”) Waive time: Give up one’s rights to have a criminal case against him be prosecuted according to speedy trial rules. (“My lawyer said I should waive time, that it’s routine to do so, and that I will not suffer any ill consequences by doing so.”)

Warrant: Order from a judge or magistrate authorizing the police to arrest someone (arrest warrant) or to search a particular location for evidence (search warrant). White collar crime: A name for a type of crime that typically involves money or property gotten through deception, including fraud, forgery, embezzlement, counterfeiting, and computer tampering. Witness: A person who testifies in court. Wobbler: A crime that can be charged as either a misdemeanor or a felony. Writ: A court order directed by a higher court to a lower court or governmental official ordering some type of action to be taken. ■

Index

A Absence, being tried “in absentia,” 347 Accessory after the fact, 255 Accessory before the fact, 254 Accomplices, 252–54 testimony by, 255 ADA protections for prisoners, 553 Adjudication, 524 Administrative regulations, researching, 577–78 Admission of petition, 524 Admissions by the defendant, 375 “Admit and explain” story, 230–31 Adults, trying juveniles as, 532–35 Aggravating factors and harsher sentences, 461–62 Aiders and abettors, 254 Airports, warrantless searches in, 69 Alibi defense, 295–96 Allegheny Academy, 538 Allocution, 463, 467–68 All-purpose judge system, 9 Alternate jurors, 433 Alternative sentences, 479–80 Americans with Disabilities Act, 553 Appeals, 490–95 brief for, 495 defined, 490 of diversion program denials, 145 “good trial record” for, 492–94 juvenile offenders, 540 length of appeal process, 492

summary of process, 500 time for filing, 491–92 writ compared to, 496 Appellate courts, trial courts compared to, 205 Argumentative questions, 380–81 Arraignments, 215–25 delay due to bail and release, 216 dismissal of case at, 219–21 DUI cases, 511 pleas made at, 218, 222 procedures, 217–18 self-representation at, 223–25 speedy arraignments, 215 timing of, 215–23 trial compared to, 216–17 Arrest, 74–89 Arrest Report sample, 89 citation procedures, 76 citizens’ arrests, 86–88 consequences of, 74 Constitutional limits on, 76 custody order (for juvenile), 524 general legal principles, 75–79 improper arrests, 78–79 material witnesses, 75 probable cause and, 77–78 use of force, 83–86 warrantless arrests, 80–82 warrantless searches incident to, 53–55 warrants for, 79–80 Assertions of state of mind, 375–76 Assuming facts not in evidence, 381

602 Criminal Law Handbook: Know Your Rights, survive the system

Attorneys. See Defense attorneys; Prosecutors Attorney work product, raw information distinguished from, 306–7 Automatic transfer laws, 533 Autos. See Motor vehicles

B BAC. See Blood alcohol content Backyard privacy, warrantless searches and, 65–66 Badgering the witness, 380–81 Bail, 114–24 amount of, 116–20 changing amount of, 122 conditions of bail, 122–23 court-financed, 115 failure to appear in court and, 123 limits on amount of, 121–22 lowering of, 120–21 minors have no right to, 528 Motion to Reduce Bail, 396 posting and arraignment delays, 216 serving time instead of, 123–24 what is accepted as, 114 Bail bonds cash bail compared to, 115 collateral for, 114 Bailiff, duties of, 206 Bankruptcy fraud, 276 Bar, in courtroom, 202 Battered wife syndrome, 295 Behavior in court, 210–11 Bench, in courtroom, 202–3 Beyond a reasonable doubt, 341 Bill of Particulars, Motion for, 397 Biological or chemical weapons, possessing, 274 Blended sentences for minors, 539 Blood alcohol content (BAC) illegal per se laws and, 503 refusing to take a test, 506 tests for, 505, 507 Body searches, booking process and, 112

Booking process, 111–14 Borders, car searches near, 63 Boston Offender Project, 538 Briefs, appellate, 495 Burden of proof in juvenile cases, 531 prosecutor’s, 340–42 Burglary, 264–67 Business records, exceptions to hearsay rule, 376

C California Evidence Code, 363 Cameras (closed-circuit) in dressing rooms, 68 Camp for juvenile offenders, 524 Carelessness and mens rea, 246–47 Cars. See Motor vehicles Case files, 206 Case law, researching, 575–77 Case loads, public defenders and, 158–59 Cash bail, bail bond compared to, 115 Chain of custody, and evidence rules, 378–79 Challenges for cause, 432, 433 Challenging potential jurors, 432–34 Chambers, of the judge, 203 Change of Venue, Motion for, 398 Character evidence rules about, 369–70 witnesses and, 371 Charges civil compromise instead of, 138 Criminal Complaint sample, 147–48 criminal records and, 139, 140 deciding not to file, 137–38 deciding on, 133–34 dismissal of and agreement not to sue, 136 dismissing by prosecutor, 139 mechanics of charging, 139–42 Motion for Bill of Particulars, 397 Motion to Reduce Charges, 397–98 overcharging, 141–42 plea bargains, 409

Index

political considerations and, 135 statutes of limitations, 131–32 time for charging after arrest, 133 victim’s influence on, 136 who decides on, 132–33 See also Dismissal of charges Checkpoints, 59 Child custody rights, of prisoners, 555 Children consent to search and, 51 mens rea (guilty mind) and, 247, 522 See also Sexual assault cases Child support payments, prisoners and, 555 Chokeholds, 86 Citation procedures, 76 Citizens’ arrests, 86–88 Civil compromise, 138 Civil forfeiture proceedings guilty pleas and, 153 not treated as double jeopardy, 476 Civil tort actions criminal cases compared to, 129–30 double jeopardy and, 359 for improper arrest, 79 for questioning by police, 16–17 Clerks. See Courtroom clerks Client-centered decision making, defense attorneys and, 185–91 Closed-circuit cameras in dressing rooms, 68 Closing arguments, 444–45 Coercion involuntary confessions and, 30 involuntary consent to search and, 48–49 Common law, researching, 575–77 Communication between attorney and client, 191–92 Community service, 478–79 Competence to stand trial, 299 Competent clients, 194–95 “Complete denial” story, 230 Concealment and white collar crimes, 280

603

Concurrent jurisdiction, state and federal, 9 Concurrent sentences, 471–72 Conditions of bail, 122–23 Confessions “confession” story, 230 intoxication or mental limitations and, 31 involuntary, 30 Confidential information, evidence rules, 387–90 Confidentiality, attorney-client relationship and, 181–85 Conflict of interest attorney’s duty of loyalty, 168–70 public defenders and, 157 Consecutive sentences, 471–72 Consent searches, 46–51 admissibility of evidence seized, 47 intimidated by police, 49–50 involuntary consent, 48 landlord and, 50 limited consent, 49 right to refuse, 47–48 shared residence and, 50 Conspirators, 256–58 Constitution. See U.S. Constitution Constitutional law, researching, 577 Contingency fees, 166–67 Court-appointed attorneys, 154–60 for minors, 530 See also Defense attorneys Court-appointed psychiatrists, 298 Court cases, researching, 575–77 Court-financed bail, 115 Courthouse, organization of, 199–200 Court reports, 206 Courtroom behavior in, 210–11 layout and organization, 200–203 Courtroom clerks Clerk’s Office, 199 duties of, 205–6 obtaining help from, 571 Credit card fraud, 276

604 Criminal Law Handbook: Know Your Rights, survive the system

Crimes, 130–31 Crime Scene, Motion to Allow Jury to View, 401 Crime victims. See Victims Criminal cases, civil cases compared to, 129–30 Criminal complaints, 139, 147–48 Criminal defense lawyers. See Defense attorneys; Private defense attorneys Criminal procedure rules, finding, 569 Criminal records charges and, 139, 140 consequences of having, 458–59 juvenile court proceedings, 539–40 Motion to Strike a Prior Conviction, 398–99 obtaining, 311 sealing (expungement), 460 Cross-examination of witnesses, 441–42 Cruel and unusual punishment, 457, 545 “CSI” effect, 385 “Custodial” questioning requirement, Miranda warning, 24–25 Custody order, 524 Cyber sleuthing, 275 Cyberterrorism, committing, 274

D Day fine, 474 Deadlocked jury, 450 Deadly force, 84–86 citizens’ arrests and, 87 Death penalty, 481–87 Defense attorneys for appeals, 490 case-in-chief, 442–43 client-centered decision making, 185–91 communicating with client, 191–92 competent clients, 194–95 confidentiality, 181–85 court-appointed, 154–60 courtroom duties, 208–9 defendant’s right to, 352–55

for DUI cases, 510–11 duty of loyalty, 168–70 and guilty clients, 192–94 incompetence and conviction, 354–55 as legal coaches, 175, 571 minors’ right to, 529–30 need for, 151–54 perjured testimony and ethics rules, 235 presence at lineup, 101–2 presentence reports and, 466–67 private attorneys, 160–70 state and federal systems, 9 “Waiver of Attorney” at lineup, 102–3 Defenses to charges alibi, 295–96 entrapment, 302 guilt not proved, 285–89 insanity, 296–300 intoxication, 300–301 jury nullification, 302–4 partial defenses, 289–92 self-defense, 292–95 Defense strategy, 229–40 “admit and explain” story, 230–31 coaching to develop story, 235–37 “complete denial” story, 230 “confession” story, 230 defendant’s version of events, 229–33 honesty and, 238–40 ignoring defendant’s version of events, 237–38 perjury and, 233–35 Delayed Miranda warning, 26 Denver Project New Pride, 538 Depositions, prosecution witnesses, 318 Derivative criminal responsibility, 252–58 Detention order, 524 Dictionaries (legal), 571–72 Diminished capacity as partial defense, 300 Direct examination of witnesses, 438–39 Disclose Identity of a Confidential Informant, Motion to, 399

Index

Discovery process, 306–13 attorney work product distinguished from, 306–7 finding harmful information, 309–12 finding helpful information, 307–9 Motion for Discovery, 399 overview, 306–7 reciprocal discovery, 312–13 Dismissal of charges and agreement not to sue, 136 at arraignment, 219–21 Motion to Dismiss after prosecutor ends case, 286, 402, 442 Motion to Dismiss Based on Improper Jurisdiction, 397 Motion to Dismiss for Vagueness, 397 by prosecutor (nolle prosequi), 139 Disposition, 524, 535–40 Dispositional hearing, 524 Diversion programs, 144–46 DNA evidence, 384 DNA tests, to challenge conviction, 563 Document authenticity, evidence rules, 386 Domestic terrorism, committing, 273–74 Domestic violence, battered wife syndrome, 295 Double jeopardy, 357–59, 402–3 Dressing for court, 210 Driving under the influence (DUI), 502–11 case examples, 511–18 checkpoints, 59 conviction and driving privileges, 505 illegal per se laws, 503 overview, 502–3 plea bargaining and, 504 refusing to answer questions, 16 sentences, 509–10 tests for sobriety, 505–7 trials for, 508 Driving While Black, 61 “Dropsy” cases, 52 Drug courts, 481

605

Drug tests federal job applicants, 67 pregnant women and, 67 public school students, 66–67 Drunk driving. See Driving under the influence Due process of law defendant’s right to, 337–40 Due Process clause, 285 DUI/DWI. See Driving under the influence Duty judges, 116 Dying declarations, 375

E Eighth Amendment, cruel and unusual punishment, 457, 545 Embezzlement, 276 Emergency (exigent) circumstances warrantless arrests and, 82 warrantless searches and, 63–64 Employers, warrantless searches and, 51 Encyclopedias (legal), 572–73 Entrapment defense, 302 Evidence consent searches and, 47 DUI trials, 508 illegal seizure of, 38–41 jury nullification and, 304 Motions in Limine, 400–401, 435–36 Motion to Preserve Evidence, 399 Motion to Suppress, 400 nontestimonial evidence, 99 in rape cases, 263 rebuttal evidence, 443 self-defense claims and expanding scope of, 294 Evidence minitrial, 365 Evidence rules, 363–90 content of testimony, 367–79 limiting instructions, 365–66 manner of testimony, 379–82 overview, 363–66

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privileged (confidential) information, 387–90 researching, 570 scientific evidence, 382–87 Excessive force, 86 Excited utterances, 375 Exclusionary rule evidence seized illegally, 38–39 improper arrests, 79 knock and notice violations, 46 Exculpatory information, prosecutor’s duty to disclose, 307 Exigent circumstances warrantless arrests and, 82 warrantless searches and, 63–64 Expert testimony, evidence rules, 377–78 Expungement, 460 juvenile court records, 540–42 Eyewitness identification, 93–107 lineups, 98–103 mistaken identifications, 96–97 motions to suppress, 105–6 photo identifications, 104–5 pretrial procedures overview, 93–95 psychology of, 96–98 showups, 103–4

F Fact-finding hearing, 524 Failure to appear in court, and bail, 123 Federal Rules of Evidence, 363 Federal system Patriot Act expands agents’ power, 274–75 sentencing procedures, 462 state system compared to, 9 Felonies, 131 charging process, 139 “Feloniously,” 251–52 Felons, consequence of being, 458–59 Fields around rural house, warrantless searches and, 66

Field sobriety tests (FSTs), 505, 507 Fifth Amendment, 144, 337–38 double jeopardy clause, 357 Final judgment rule, 491 Financial assistance to terrorist organization, giving, 274 Financial Eligibility Questionnaire, for courtappointed attorney, 154–55 Fines, 474–76 Fingerprints booking process and, 112 fingerprint evidence, 386–87 Fitness hearing. See Transfer hearings Force when making arrests, 83–86 Forensic pathologists, 387 Form books, 573–74 Foundational evidence, 365 Fourth Amendment arrest limitations, 76–78 provisions of, 37–38 search and seizure limits, 337 text of, 37 Fraud schemes, avoiding, 280–81 Free legal assistance, 157 Frisk, search compared to, 57 FSTs (field sobriety tests), 505, 507

G General acceptance rule, scientific evidence, 384 Glossary criminal law terms, 579–600 juvenile court terms, 524 “Good trial record” for appeal, 492–94 Government records, exceptions to hearsay rule, 376 Grand juries discovery and transcripts, 311 felony indictment and, 139 Fifth Amendment privilege, 144

Index

overview, 142 proceedings of, 142–43 prosecutor’s advantage at, 328–29 testifying before, 143 Grand theft, 269 Grant of clemency, 481, 562–63 “Great Writ” (habeas corpus), 497–98 Guest in the home, privacy protections for, 55 Guidelines Manual, federal sentencing, 462 Guilt, prosecution’s failure to prove, 285–89 Guilty defendants, defense attorneys and, 192–94 Guilty mind. See Mens rea Guilty pleas at arraignment, 218, 222 hidden costs of, 153 nolo contendere plea compared to, 410

H Habeas corpus, 497–98 Hallway hearings, motions, 395 Handwriting analysis, evidence rules, 386 Hate crimes, 271–73 Health screening, booking process and, 113 Hearsay confrontation clause and, 346 evidence rules, 372–76 inadmissibility exceptions, 375–76 High-speed car chases, deadly force and, 86 Home repair fraud, 276 Homicide, 258 Hotel room, warrantless searches and, 51 House arrest, 480 Hung jury, 450 Hypnosis, evidence rules, 385

I Identification requests by police, refusing, 13–14 Illegal immigrant checkpoints, 59 Immigrant detention, 275

607

Immunity for testimony, 345 Imperfect self-defense, 294 Implied consent laws, DUI cases and, 506 Incarceration, 469–74 See also Jails; Prisons Income tax crimes, 277 Incompetence of attorney, 354–55 Infant, 524 Informants, Motion to Disclose Identity of a Confidential Informant, 399 Infractions, 131 Innocence Project, 563 Innocent people, answering police questions and, 17–19 Insanity defense, 296–300 Insider trading, 276, 277 “Intelligence Court,” 275 Intentionality “knowing” or “knowingly,” 247–49 lack of as partial defense, 290 “malicious,” 250 and mens rea, 245–46 specific intent crimes and, 249–50 “willfully,” 250–51 Interpreters in court, 207 Interrogation. See Questioning by police Intoxication confessions and, 31 as partial defense, 300–301 Intoxication and driving. See Driving under the influence Investigators, interviewing prosecution witnesses, 317–18 Investigatory checkpoints, 59 Involuntary confessions, 30, 338–39 Involuntary consent to a search, 48 Involved, juvenile court, 524 Irresistible impulse, insanity defense, 297–98

608 Criminal Law Handbook: Know Your Rights, survive the system

J Jails minors put in, 529 overcrowding and early release, 472–73 prison compared to, 470–71 private jails, 480 Judges addressing of, 211 duties of, 203–5 duty judges, 116 reasons for choosing trial by, 429–31 state and federal systems, 9 Junk science, 383 Jurisdiction, state and federal, 9 Jury box, in courtroom, 202 Jury consultants, 434 Jury instructions, lesser crime instruction, 291–92 Jury nullification, 302–4 Jury trials alternate jurors, 433 challenging potential jurors, 432–34 deadlocked jury, 450 defendant’s right to, 351–52 deliberations and verdict, 448–51 duties of jurors, 207–8 instructing the jury, 446–48 juvenile courts and, 531 lesser crimes and, 290–92 minors tried as adults, 534–35 misconduct during trial, 448–49 Motion to Allow Jury to View the Crime Scene, 401 “penalty” for choosing, 430 reasons for choosing, 429–31 rules for, 451 sequestering jurors, 449 voir dire process, 431–35 Juvenile courts and procedures, 521–42 adults, trying juveniles as, 532–35 appeals and altering a decision, 540 filing of charges, decisions about, 524–27 glossary of terms, 524

history of, 521–22 jurisdiction of, 523 paternalism of, 522 rights of minors, 527–31 sealing court records, 540–42 sentencing (disposition) options, 535–40 Juvenile hall, 524

K Knock and notice laws arrests and, 83 searches and, 46 “Knowing and intelligent” plea, 416–18 “Knowing” or “knowingly,” 247–49

L Landlords, consent searches and, 50 Larceny (theft), 268–71 Law librarians, 570–71 Law libraries, 578 Lawsuits. See Civil tort actions Lawyers. See Defense attorneys; Prosecutors Legal coaches, 175, 571 Legal research administrative regulations, 577–78 constitutional law, 577 court cases, 575–77 dictionaries, 571–72 DUI laws, 511 encyclopedias, 572–73 evidence rules, 570 form books, 573–74 law libraries, 578 local court rules, 569 numbering system for reporters, 576 online resources, 578–79 people who can help, 570–71 practice guides, 574 procedural rules, 569 state vs. federal crimes, 569

Index

statutes, state and federal, 574–75 substantive law, 566–68 Lesser crimes, jury and, 290–92 Licenses (professional/business), incarceration and, 554 Lie detector tests evidence rules, 384–85 suspects should refuse, 19 Limiting instructions, evidence, 365–66 Limits on arrests, 76 Lineups, 98–103 defense attorney’s presence at, 101–2 sequential lineups, 98 suspect may demand, 99 suspects required to participate, 99 unfair procedures, 100–101 “Waiver of Attorney” at, 102–3 who may be present, 98 Local court rules, finding, 569 Loitering laws, 15–16 Los Angeles Juvenile Traffic Court, 538 Lost property and theft, 269–70 Lying to the police, 20

M Malice aforethought, murder and, 258 “Malicious,” 250 Mandamus, writ of, 499 Mandatory sentences, 458 Manslaughter, 259–62 Martindale-Hubbell, 162 Mass transit systems, warrantless searches in, 69 Material witnesses, arresting, 75 Media rights public trials, 348–49 restrictions on, 350–51 Megan’s Law, 480 Memorandum of Points and Authorities, 400 Mens rea (guilty mind), 244–47 accomplices and, 253–54

609

children and, 247, 522 See also Intentionality Mental limitations, confessions and, 31 Mercy rule, character evidence, 369–70 Minute Order form, 537 Miranda warning arrestees and, 20–22 “custodial” questioning requirement, 24–25 delayed warning, 26 dismissal of case and, 24 effects of, 27–29 failure to give, 22 inadmissible statements, 23–24 minors and, 529 the Miranda case, 22 obtaining without giving, 22–23 people not in custody and, 17 private individuals as police agents, 29 waiving rights to, 27 Misdemeanors, 131 criminal complaint filing, 139 sample of criminal complaint, 147–48 Misquoting witness testimony, 381 Mistake of law vs. mistake of fact, 246 Mistakes and mens rea, 245–46 Mistrials, deadlocked juries and, 450 Mitigating factors and lighter sentences, 460 M’Naghten rule, insanity definition, 297 Money laundering, 276 Motions, 393–405 to Allow Jury to View the Crime Scene, 401 for Bill of Particulars, 397 for Change of Venue, 398 to Disclose Identity of a Confidential Informant, 399 for Discovery, 399 to dismiss after prosecution presents case, 286, 402, 442 to Dismiss Based on Improper Jurisdiction, 397 to Dismiss for Vagueness, 397 to Examine Police Officer’s Personnel File, 399–400

610 Criminal Law Handbook: Know Your Rights, survive the system

hallway hearings, 395 Motions in Limine, 400–401, 435–36 for a New Trial, 403, 404 to Preserve Evidence, 399 pretrial motions, 396–400 procedures, 393–96 to Reduce Bail, 396 to Reduce Charges, 397–98 for a Speedy Trial, 400 stipulations instead of, 395 to Strike a Prior Conviction, 398–99 to Strike Testimony, 401–2 to Suppress, 400 suppress identifications, 105–6 after trial, 402–5 during trial, 400–402 verdict, changing, 403, 404–5 Motive, 252 Motor vehicles car and occupant searches, 58–63 high-speed car chases, 86 police officers shooting into, 84 See also Driving under the influence (DUI); Traffic violations Mug shots for photo identifications, 104–5 taken during booking, 112 Murder, 258–59

N NAA results, evidence rules, 385–86 Narcotics checkpoints, 59 National Security Administration, warrantless searches and, 65 Negotiation strategies, for plea bargains, 419–23 Neutron activation analysis, evidence rules, 385–86 New Trial, Motion for, 403, 404 No-bill, 142 No contest plea. See Nolo contendere plea Nolle prosequi, 139

Nolo contendere plea at arraignment, 218, 222 effect of in criminal cases, 224 guilty plea compared to, 410 plea bargain and, 410 Nontestimonial evidence, 99 Notice of Motion, 393–95 Nullification by judge, 303 by jury, 302–4

O Oath to tell the truth, 439 On-the-street questioning by police, 13 Opening statements, 436–37 O.R. release, 124–26 Out-of-court statements, and hearsay rules, 372–76 Overcharging, 141–42 Overcrowding and early release, 472–73 Own Recognizance Release, 124–26

P Panel attorneys, 156–60 See also Defense attorneys Pardons, 481, 562–63 Parole, 481, 560–62 Parolees, arrests and, 78 Partial defenses, 289–92 diminished capacity and, 300 intoxication, 300–301 Patriot Act new crimes created by, 273–75 warrantless searches and, 65 Perjury defendant’s version of events and, 233–34 defense attorney and, 235 witnesses and, 439 Personal knowledge rule, and testimony, 368–69

Index

Personnel files, Motion to Examine Police Officer’s Personnel File, 399–400 Petition, juvenile court, 524 Petty offenses, 131 Petty theft, 269 Photo identifications, 104–5 Pigeon drop schemes, 280 Plea bargains, 409–23 advantages and disadvantages, 410–14 attorney-client decisions about, 187–88 charge bargaining, 409 disregarded by sentencing judge, 457 DUI cases, 504 incentives for, 410–12 “knowing and intelligent” plea, 416–18 negotiation strategies, 419–23 probation revocation charge, 478 procedures for, 414–18 prosecution and, 412–13 sentence bargaining, 409 “standard deal,” 420 time for making, 409–10 Pleas at arraignment, 218, 222 attorney-client decisions about, 188–90 plea bargains and, 410 Police dogs, traffic violation stops and, 63 Police officers Motion to Examine Police Officer’s Personnel File, 399–400 state and federal, 9 See also Questioning by police Polygraph evidence, 384–85 Postconviction remedies. See Appeals; Writs Practice guides, 574 Preadjudication detention or release, 528 Preemptory challenges, 432, 433 Pregnant women, drug testing of, 67 Preliminary hearings, 324–34 defendant’s rights during, 329–31 description of, 325 outcomes of, 326

611

rules during, 326 strategies at, 332–34 as substitute for trial, 327 time for, 324–25 trial compared to, 325–26 waiver by defense, 334 Prescribed sentences. See Statutory sentencing provisions Presentence report, 464–67 Pretrial motions, 396–400 Principals, 254 Prior inconsistent statements, 376 Priors. See Criminal records Prisoners’ rights, 545–55 attacks by other inmates, 548–49 child custody rights, 555 child support, 555 courts, access to, 556–59 exercise of religion, 547 food, withholding, 548 lawsuits, 556–59 legal resources, 555–59 mail privileges, 552 marriage while in prison, 553 medical treatment, 547 outdoor exercise, 549 physical force used by guards, 548 reasonable accommodation rights, 553 rehabilitation of inmates, 551 search and seizure, 549–50 security classification status, 546–47 transfers between facilities, 551–52 violations of prison rules and, 555–56 visitation rights, 550–51 voting rights, 554 working in prison, 553–54 Prison Litigation Reform Act (PLRA), 559 Prisons adequate conditions at, 545–46 conditions as cruel and unusual, 457, 545 jail compared to, 470–71 mistreatment in, 474 number of people in prison, 546

612 Criminal Law Handbook: Know Your Rights, survive the system

overcrowding and early release, 472–73 Privacy, legitimate expectation of, 38 Private defense attorneys, 160–70 changing, 167–68 cost of hiring, 165–66 duty of loyalty, 168–69 locating, 161–64 negotiating reduced fee, 168 Retainer Agreement (sample), 176–78 retainer fee, 166 Private individuals as police agents, for purposes of Miranda, 29 Private investigators, interviewing prosecution witnesses, 317 Private security guards arrest powers of, 88 searches by, 68 Privileged (confidential) information, evidence rules, 387–90 Probable cause arrests and, 77–78 searching a car and occupants, 62–63 searching and arresting minors, 528 search warrants and, 42–43 warrantless arrests and, 81–82 Probable cause hearing. See Preliminary hearings Probation, 476–78 for juveniles, 536–37 Probationers arrests and, 78 warrantless searches of, 68–69 Probation officers, presentence report prepared by, 464–66 Probation revocation hearing, 478 Procedural due process, 337 Procedural rules, finding, 569 Prohibition, writ of, 498–99 Pro per defendant, 208 See also Self-representation Prosecution’s burden of proof, 340–42 Prosecution witnesses attacking testimony of, 286–87

interviewing by defense, 316–19 See also Witnesses Prosecutors case-in-chief, 437–38 death penalty charging decisions, 484–85 incentives for plea bargains, 412–13 rebuttal evidence offered by, 443 state and federal, 9 See also Charges Psychiatrists, insanity defense and, 298 Public defenders, 155–60, 530 See also Defense attorneys Public restrooms, privacy rights, 67 Public school officials drug testing requirements, 66–67 searching students, 66 Public trial rights, 348–51

Q Questioning by police arrestees, 20–31 people not in custody, 13–20

R Rape, 262–64 in prison, 549 See also Sexual assault cases Rape shield laws, 263, 372 Reasonable accommodation rights of prisoners, 553 Receipts for personal property, taken during booking, 112 Receiving stolen good, 270–71 Recording statements made to police, insisting on, 19 Redirect examination, 441–42 Reduce Charges, Motion to, 397–98 Referee, 524 Rehabilitation of inmates, 551 Release O.R., 124–26

Index

Relevance and evidence admissibility, 367–68 Remorse, sentencing and, 466 Reporters for case law, 576–77 Reporting a crime, duty to report, 14 Respondent, juvenile court, 524 Restitution, 474–75 Retainer fee private defense attorneys, 166 Retainer Agreement (sample), 176–78 Reverse transfer hearings, 533 Revocation of probation, 478 Robbery, 267–68 Robbery case, sample prosecution, 4–8 Roving wiretaps, 274

S “Same offense,” double jeopardy and, 358 Scared Straight program, 536 Scientific evidence, evidence rules, 382–87 Sealing arrest and conviction records (expungement), 460 juvenile court records, 540–42 Search and seizure, 37–71 Affidavit for Search Warrant, 70 car and occupant searches, 58–63 consent searches, 46–51 constitutional background, 37–41 emergency (exigent) circumstances, 63–64 illegal seizure of evidence, 38–41 minors and, 528 miscellaneous types of warrantless searches, 64–69 plain view doctrine and, 51–52 prisoners and, 549–50 search warrants, 41–46 Search Warrant (sample), 71 “sneak and peek” searches, 275 stop and frisk searches, 55–58 warrantless searches incident to arrest, 53–55 Search warrants, 41–46 anticipatory warrants, 42

613

described, 41–42 invalid warrant and validity of search, 43–44 items not listed in warrant, 44–45 knock and notice laws, 46 probable cause and, 42–43 Securities fraud, 276 Self-defense claims, 292–95 Self-incrimination, grand juries and, 144 Self-representation, 170–75 appeals and, 491 at arraignment, 223–25 plea bargaining and, 421 as pro per defendant, 208 qualified right to, 355 sentencing hearings and, 464 untruthful testimony, 234 version of events, developing, 232–33 Sense-enhancing technology, warrantless searches and, 67–68 Sentencing, 456–87 aggravating factors and, 461–62 allocution, 463, 467–68 alternative sentences, 479–80 community service, 478–79 death penalty, 481–87 DUI convictions, 509–10 federal Guidelines Manual, 462 fines, 474–76 incarceration, 469–74 juvenile court options, 535–40 limits on, 457 mandatory sentences, 458 mitigating factors and, 460 options, 469–81 overview, 456–62 plea bargains, 409, 457 presentence report, 464–67 probation, 476–78 procedures for, 463–69 “standard sentence,” 174 statutory sentencing provisions, 456, 458 three strikes laws, 459 victim’s role, 469

614 Criminal Law Handbook: Know Your Rights, survive the system

Sequential lineups, 98 Sequestering jurors, 449 Sequestering witness, 348, 382 Sexual assault cases character evidence, 371 children and confrontation rules, 348 Megan’s Law, 480 privileged communications, 390 See also Rape Shooting into moving vehicles, 84 Showups, 103–4 Silence asserting right to, 24 defendant’s right to, 342–45 Sixth Amendment defendant’s right to a jury trial, 351 defendant’s right to confront witnesses, 345–48 hearsay and, 346 right to counsel, 353 speedy trial rights, 355 “Sneak and peek” searches, 275 Sniffer dogs, traffic violation stops and, 63 Spam and committing crimes, 276 “Special circumstances” death penalty and, 483–84 Specialized judges, 9 Specific intent crimes, 249–50 Speculation, 381–82 Speedy trial arraignments and, 215 defendant’s right to, 355–56 filing of charges and, 133 Motion for a Speedy Trial, 400 Spouses, privileged communications, 389–90 “Standard deal,” plea bargains, 420 State systems, federal system compared to, 9 Statutes, state and federal, researching, 574–75 Statutes of limitations, 131–32 Statutory rape, 264 Statutory sentencing provisions, 456, 458 Stipulations, instead of motions, 395 Stop and frisk searches, 55–58

Stop and identify laws, 13–14 Strict liability laws, 245 Strike a Prior Conviction, Motion to, 398–99 See also Criminal records Strip searches booking process and, 112 of prisoners, 550 Students (public school) drug testing of, 66–67 searching of, 66 “Submit on the record” cases, 327 Subpoena prosecution witness deposition, 318 subpoenas duces tecum, 320–21, 440, 452 Substantive due process, 337 Substantive law, 566–68 Subways, warrantless searches in, 69 Suing a police officer. See Civil tort actions Suitable placement, 524 Suspended sentence, 473 Sustained/not sustained finding, juvenile court, 524

T Talking to police. See Questioning by police Tax crimes, 277 Teen courts, 538 Telemarketing fraud, 276 Telephone calls after booking, 113 prisoners’ right to make, 551 Telephone conversations roving wiretaps, 275 warrantless searches and, 65 Terrorism Patriot Act, 65, 273–75 warrantless searches and, 69 Testimony evidence rules about content of, 367–79 evidence rules about manner of, 379–82 Motion to Strike Testimony, 401–2

Index

of prosecution witnesses, attacking, 286–87 See also Witnesses Theft, 268–71 Three strikes laws, 459 “Time served,” 473 Traffic violations checkpoints, 59 Driving While Black, 61 frisking of people, 60 Miranda warning, 25–26 ordering people out of the car, 59–60 police dogs and, 63 probable cause to search, 62–63 search of car and occupants, 58–59 See also Driving under the influence (DUI); Motor vehicles Transactional immunity, 345 Transcript of trial, obtaining, 494 Transfer hearings, for trying juvenile as adult, 532–34 Trash, warrantless searches and, 65 Trial courts appellate courts compared to, 205 state and federal systems, 9 Trial process, 428–52 closing arguments, 444–45 cross-examination of witnesses, 441–42 defense case, 442–43 direct examination of witnesses, 438–39 “good trial record” for appeal, 492–94 judge or jury trial, choosing, 429–31 jury deliberations and verdict, 448–51 jury instructions, 446–48 jury voir dire process, 431–35 Motions in Limine, 435–36 Motion to Dismiss, 442 opening statements, 436–37 prosecutor’s case, 437–38 rebuttal evidence, 443 summary, 428–29 Trial rights of the defense confrontation of witnesses, 345–48

double jeopardy and, 357–59 due process, 337–40 jury trial rights, 351–52 prosecution’s burden of proof, 340–42 public trial rights, 348–51 representation by an attorney, 352–55 silent, right to remain, 342–45 speedy trial, 355–56 True bill, 142 TV cameras in the courtroom, 350

U U.S. Constitution death penalty law validity, 482–83 due process, 285, 337–38 Patriot Act and, 275 rights of minors, 527–28 search and seizure provisions, 37–41 writ of habeas corpus, 497, 498 Use immunity, 345 Use of force when making arrests, 83–86

V Venue, Motion for Change of, 398 Verdicts, motions to change, 403, 404–5 Version of events defendant’s, 229–33 ignoring defendant’s version, 237–38 perjury and, 233–34 Victim Impact Statements, 469 Victims benefits of plea bargain, 414 restitution for, 474–75 role in plea bargaining, 415–16 sentencing hearing and, 469 Violation of probation, 477–78 Voir dire process, 431–35 Voting rights, prisoners, 554

615

616 Criminal Law Handbook: Know Your Rights, survive the system

W Waiver hearing. See Transfer hearings Waivers Miranda rights, 27 of preliminary hearing, 334 Waive of Rights sample, 107 “Waiver of Attorney” at lineup, 102–3 Walking away from a police officer, 14–15 Ward of the court, 524 Warrantless arrests, 80–82 Warrantless searches car and occupant searches, 58–63 consent searches, 46–51 emergency (exigent) circumstances, 63–64 incident to arrest, 53–55 miscellaneous types of, 64–69 plain view doctrine and, 51–52 stop and frisk searches, 55–58 Whistle-blowers, 277, 278, 279 White collar crimes, 276–81 “Willfully,” 250–51 Wiretaps, 274 Witnesses arresting material witnesses, 75

character evidence, 371 cross-examination of, 441–42 defendant’s right to confront, 345–48 direct examination of, 438–39 eyewitness identification, 93–107 immunity offers, 345 interviewing defense witnesses, 319 oath to tell the truth, 439 redirect examination, 441–42 sequestration of, 348, 382 Subpoena Duces Tecum, 320–21, 440, 452 tips for testifying, 440 See also Prosecution witnesses; Testimony “Wobbler” crimes, 131 Work product, raw information distinguished from, 306–7 Writ coram nobis, 405 Writs, 496–500 appeal compared to, 496 habeas corpus, 497–98 juvenile offenders, 540 of mandamus, 499 of prohibition, 498–99 time for filing, 499 in trial court, 405 n

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would accept (M) understood in a vaguer, meta-ethically neutral sense. The answer, I believe, is Yes. When so understood, (M) is a substantive normative claim that, in ideal conditions, everyone would accept. It might be objected: ‘(M) cannot state a normative truth. Norms must be able to be breached or contravened. It would be impossible to know that some belief must be true without also having this belief.’ This objection is, I believe, mistaken. People sometimes know that some belief must be true, without really believing this truth, because they continue to think and act as if this belief were false. It is a normative claim that what these people know gives them a decisive epistemic reason to have this belief. My claims about (M) could, however, be applied to other normative epistemic truths. One example is (P) If we know that, given what we know, there is a chance of 99 in 100 that some belief is true, this fact gives us a strong epistemic reason, by counting strongly in favour of our having this belief. (P) is a substantive normative claim that, in ideal conditions, nearly everyone would accept. Consider next (Q) The nature of agony gives us a reason to want to avoid future agony. This claim is not, I believe, a conceptual truth. It does not follow from the meaning of the word ‘agony’ and the phrase ‘a reason’ that we have such an object-given reason to want to avoid agony. (Q) is another example of an intuitively recognizable normative truth. I believe that, as Nagel claims, (Q) is intrinsically more plausible than any argument that we might give in (Q)’s defence. Many people either do not have the concept of a purely normative, object-given reason, or believe that there could not be any such reasons, or normative truths. But if we set aside such meta-ethical disagreements, and another distorting in?uence to which I shall return, few people who understood (Q) would

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seriously doubt that they have such a reason to want to avoid being in agony. We can now turn to moral disagreements. When we discuss moral beliefs, we cannot hope to show that the Convergence Claim is true. Nor, however, could skeptics show that this claim is false. We can reasonably predict or hope that, in ideal conditions, we would nearly all have suf?ciently similar moral beliefs. Though there have been many moral disagreements, most of these disagreements do not, I believe, count strongly against this prediction. In most cases, some of the ideal conditions are not met. First, when different people have con?icting moral beliefs, that is often because these people have con?icting non-moral beliefs, or because they do not know all of the relevant non-moral facts. Some examples are disagreements about distributive justice. There have been many con?icting beliefs about people’s property rights, or the inheritance of wealth, or whether some people ought to be paid much more than others, or about which areas of land, natural resources, or man-made goods ought to be privately or publicly owned. These disagreements are often ignored by moral theories. But compared with many questions about which acts are right or wrong, such as questions about when it is right to lie or break some promise, it is more important to ask which inequalities in wealth and income can be morally justi?ed. These inequalities have much more signi?cant effects on people’s lives. Disagreements about these questions often depend on people’s having con?icting beliefs about human nature, and about the likely effects of different policies or institutions. Similar remarks apply to many other moral disagreements, such as many disagreements about sexual morality, or about our obligations to our close relatives, or about which acts should be illegal, and when and how people ought to be punished. When such disagreements depend in part on con?icting non-moral beliefs, it may be true that, if we all knew the relevant non-moral facts, we would come to have similar moral beliefs. Many other moral disagreements depend on people’s having con?icting religious beliefs. Such disagreements cast little doubt on the Convergence Claim. Most of us would agree, for example, that if the

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Universe was created by an omniscient, omnipotent, and wholly good God, we ought to obey this God’s commands. In many other cases, our moral beliefs are affected by distorting in?uences. That is often true when we have con?icting interests. If we ask whether people should be paid much higher salaries when their innate abilities make them more productive, our answer may depend on whether we ourselves have such abilities. If we ask how much of their income the world’s rich people ought to give to those who are poor, our answer may depend on whether we are rich or poor. When our moral beliefs are affected by our knowing such facts about ourselves, we are more likely to make mistakes. These facts ought not to in?uence us, since they are irrelevant to the truth of these moral beliefs. There are other distorting in?uences. Many disagreements cannot be ended, for example, because some people become committed to their beliefs, and are unwilling to admit that they have been mistaken. In another large class of cases, moral disagreements are super?cial, since they are about different ways of applying some more fundamental principle. When Mackie defend his error theory, he appeals to the fact that people in some societies believe in monogamy, but people in others believe in polygamy. This disagreement is not disturbing. Consider next the belief that parents have special obligations to care for their children. Since this belief is almost universal, it does not support the Argument from Disagreement. But even this belief is not, for most of us, fundamental. That is shown by how we would respond if we considered those actual or imagined communities, such as some Israeli kibbutz or Plato’s Republic, in which children are communally reared. We would not believe that, in such communities, parents were simply acting wrongly in failing to care for their own children. Most of us would believe that (1) people ought to play their part in whatever, in their society, is the established system of bringing up the next generation, and that (2) in the best system parents would care for their own children. Any disagreements about (2) would mostly depend on people’s having con?icting non-moral beliefs. There are other ways in which people may only seem to disagree. In some cases, people use words like ‘ought’ and ‘wrong’ in different

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senses. Sidgwick, for example, claims that he ought not to prefer his own lesser good to the greater good of others. This may suggest that, on Sidgwick’s view, he would be acting wrongly if he saved his own life rather than the lives of several strangers. Most of us would reject that view. But Sidgwick seems to be using ‘ought’ in what I call its impartial-reason-implying sense. He seems to mean that, if he assessed his reasons from an impartial point of view, he would have more reason to prefer the greater good of others. We would not reject that claim. Some other moral disagreements are not about which acts are wrong, but about why these acts are wrong, or what makes them wrong. Different answers are given by different systematic theories, such as those developed by Kantians, Contractualists, and Consequentialists. Such disagreements do not directly challenge the view that we are able to recognize some moral truths. In defending this view, it is enough to defend the claim that, in ideal conditions, there would be suf?cient agreement about which acts are wrong. Though we also have intuitive beliefs about why many acts are wrong, and about the plausibility of different systematic theories, we would expect there to be more disagreement about these other questions. As I have also argued, however, when the most plausible systematic theories are developed further, as they need to be, these theories cease to con?ict. If that is true, these theoretical wars would end. Many other disagreements are about borderline cases. Such disagreements do not count against the view that there are some moral truths. Even when we all agree that acts of some kind are wrong, we should expect that we would sometimes disagree about which acts are of the relevant kind. We may agree, for example, that it is wrong to kill innocent human beings, but disagree about the status of a human embryo or foetus. There are two main ways in which we can use the phrase ‘a human being’. On one use, a fertilized ovum counts as a living member of the species homo sapiens, and is therefore a human being. This is like the claim that, when the ?rst green shoot emerges from an acorn, this acorn is already an oak tree. We may instead use different concepts of a tree and a human being, claiming that such a sprouting acorn is not yet an oak tree, and that a fertilized ovum or embryo is not yet a human being. When

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people’s concepts differ in this way, that may lead them to disagree about the wrongness of abortion. It is a dif?cult question whether and how this disagreement could be resolved. But since this disagreement is about borderline cases, it does not cast doubt on the view that it is wrong to kill innocent human beings. There are similar disagreements about which acts count as killing someone, or merely as a failure to save someone’s life. These cases illustrate another kind of disagreement. When we ask whether acts of some kind are wrong, many people assume that the answer must be all-or-nothing. In many cases, however, the morally relevant facts are matters of degree. If an embryo or foetus turns slowly into a human being, the moral objection to an abortion may similarly grow in strength. Nor should we give equal weight to the saving of each person’s life. Compared with giving someone ?fty more years of life, it is very different to give someone else only a single extra month, or one extra week, or day. Return next to the question of what we rich people ought to give to those who are very poor. If we assume that wrongness is all-or-nothing, we shall be most unlikely to agree on how much we ought to give. And it is hard to believe that there could be a de?nite answer here, so that what is wrong might be giving less than a tenth of our income, or less than a ?fth, or less than half. For most of us, the truth is rather that we shall be acting less wrongly the more we give. When people have con?icting moral beliefs because they mistakenly assume that wrongness cannot be a matter of degree, these disagreements do not count against the Convergence Claim. If these people gave up this assumption, that would end such disagreements. Many people also fail to see that, in many cases, normative truths are imprecise. One example is the question of how it would be best for someone’s life to go. When we are making decisions that will greatly affect the rest of our lives, such as choosing between two possible careers, or deciding whether to have children, the truth is often that neither of these possible futures would be better for us, or would make our lives more worth living. We should not assume that, when neither of two possible lives would be better, these lives must be precisely equally good. Two very different lives could not, I believe, have such precisely related values. These lives would be only imprecisely equally

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good, and this imprecision would often be great. Similar claims apply when we ask which people are worse off than others, in morally relevant senses. People in very different circumstances could not be precisely equally well off. But these questions have answers, since some lives are more worth living, and some people are better off than others. These differences are matters of degree. One life might be somewhat better than another, which is much better than a third, and one of two people might be either somewhat worse off, or much worse off. Such comparisons involve what we can call imprecise cardinal comparability. It is easy to think about such cases in ways that lead us astray. When some things can be better or worse than others, and by more or less, it is natural to use what we can call the Linear Model. The goodness of these things, we may assume, involves a dimension, which we can think of as if it were a line, or scale of value. Something’s goodness corresponds to its position on this line. Suppose next that, of two things, X is now worse than Y, and is therefore lower down on the line that represents our scale of value. X starts to get better in some gradual way, and ends up higher on this line than Y, thereby being better than Y. If that is how we think about such cases, we cannot help believing in precision. Since X has moved up this line from being lower than Y to being higher, there must have been a time when X was at the same point as Y, thereby being precisely equally good. In most important cases, that conclusion would be false. Suppose, for example, that X and Y are Shakespeare’s drafts of two new plays. Because Shakespeare knows that one of these drafts is worse, he rewrites more than a thousand lines, thereby turning the worse play into the better play. There would be no point, during this rewriting, when these two plays were precisely equally good. To understand these cases, we must reject this Linear Model, which unavoidably implies precision. Nor should we think in terms of numbers, since these would also imply precision. It would not be enough to use the idea of a range of value, by saying, for example that, rather than having a value of 90, something’s value ranges from 85 to 95. Such a thing would be only slightly worse than something else whose value ranges from 86 to 96. When we think about cases that involve imprecise cardinal comparisons, we should deliberately avoid thinking in either

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spatial or numerical terms?except as a form of shorthand that we should remember to be seriously misleading. A scienti?c analogy may be helpful here. Before Einstein’s great discoveries, many people thought of time as if it were a line, with each moment having some position on this line. On this view, if neither of two events occurs before the other, these events must be simultaneous. No third possibility makes sense. Einstein discovered that, given the surprising ways in which time is related to space and to the speed of light, we must cease to think of the different moments of time as if they all had some position on a single line. When two events occur in suf?ciently distant places, if neither event occurs before the other, that does not imply that these events are simultaneous. These events are related in a third way, which is sometimes called being in each other’s elsewhere. This analogy is only partial, since Einsteinian space-time involves relations that are precise. But it may help to remember the fact that, for many centuries, it seemed to many people to be certain that time could be represented as a line. This assumption, we have learnt, was a mistake. It may now seem similarly certain that, when some things can be better than others, and by more or less, such differences in value can be represented as if they involved different positions on a line, or scale of value. When such differences are imprecise, as they very often are, this assumption is also a mistake. It is sometimes claimed that, to persuade people that differences in value can be imprecise, we can show these people that they already recognize this truth in making some of their decisions. Suppose that you have been offered two jobs, A and B, which would involve very different kinds of work, and would involve living in very different cities. You ?nd it hard to choose between these offers, which seem to you equally good. The salary for job B is then signi?cantly raised, making this offer seem much better than it was before. But this improvement doesn’t solve your problem, since you still ?nd it hard to choose between job A and this better version of B. Your continuing indecision may seem to show that you earlier believed that jobs A and B were only imprecisely equally good. It may seem that, if you had earlier believed that A and B were precisely equally good, you would have decided that this improved version of B must be better than A. But this reasoning is mistaken. You

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may have earlier assumed that, though there must be some precise truth about the relative goodness of A and B, you knew only very roughly how good these jobs would be. That would be enough to explain how, when B is improved, that does not solve your problem. This improvement may be well within your assumed margin of error. There are other ways to defend the view that there can be such imprecise differences in value. Consider ?rst comparisons of a different kind. Suppose that someone asks whether Einstein or Bach was a greater genius, or had greater achievements. We may think this a pointless question, since we cannot possibly compare the greatness of scientists and composers, or their achievements. But this response would be a mistake. Einstein was clearly a greater genius than any untalented ?fth-rate composer, and Bach was clearly a greater genius than any incompetent ?fth-rate scientist. As this shows, there are truths about the relative greatness of scientists and composers, and their achievements. If we had earlier believed that there could not be any such truths, it would be implausible to move now to the opposite extreme, believing not only that there are such truths, but also that such truths must be precise. Given the very great differences between music and physics, it could not be true, I believe, that Bach and Einstein, or their achievements, were precisely equally great. Nor could it be true that either was slightly greater than the other. Though there can be differences in the greatness of achievements of such very different kinds, these differences must be imprecise. Since these claims about greatness are evaluative, we can next point out that there is similar imprecision in many non-evaluative and nonnormative facts. If we are comparing two very different pieces of mechanical equipment, for example, there may be no precise truth about which of these pieces of equipment is more unwieldy, or awkward to use. And there would often be no precise truths about which of two rooms is more untidy, or which of two theories is more complicated, or which of two mountains it would be harder to climb. Similar claims apply to the goodness of outcomes. Suppose we believe that it would be in one way better if some group of people received a greater sum of bene?ts, and in another way better if these bene?ts were more equally distributed between these people. There would often be no precise truths either about which of two sums of bene?ts would be

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greater, or about which of two patterns of distribution would be less unequal. Nor could there be precise truths about the relative importance of how great the sum of bene?ts would be, and how equally these bene?ts would be distributed. In such cases, the truth would often be that (1) neither of two outcomes would be better, and that (2) these outcomes would be very far from being precisely equally good. Though we can call such outcomes equally good, it is clearer to say that neither would be better. Similar claims apply to questions about the wrongness of acts, and about what we ought to do, or have most reason to do. There are often no precise truths either about which acts would do more good, or about the relative importance of other moral considerations, or reasons for acting. There are no such truths, for example, about the relative strengths of our reasons to keep some promise, or to help some stranger who is in distress. When different people have con?icting beliefs about which of two outcomes would be better, or which of two acts would be wrong, that is often because these people mistakenly assume that such normative truths are more precise than they really are. If these people realized that many such truths are very imprecise, they would often cease to disagree. These people would come to see that neither of two outcomes would be better, or that neither of two acts would be wrong. There is another way in which these facts about imprecision support the view that there are some normative truths. If such truths had to be precise, it would often be hard to believe that there are such truths. It would be hard to believe, for example, that one of two possible lives could be 23.7% more worth living, or that one of two people could be, in some morally relevant sense, 3.16 times better off. When we see that such truths would be very imprecise, it is easier to recognize that some lives are more worth living than others, and that some people are better off. We can next brie?y consider another, similar, but more puzzling kind of case. Some questions may be indeterminate, in the sense that they have no answer. That is sometimes true, for example, of the question ‘Is he bald?’ If some man has no hair, he is bald. If some man has a full head of hair, he is not bald. But we cannot plausibly assume that, in all

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cases between these two extremes, any man must either be, or not be, bald. In many cases, though it is not true that some man is bald, it is also not true that this man is not bald. Similar claims might apply to normative questions. One example is the wrongness of abortion. Suppose that ® it is not true that there is any moral objection to early abortion. This may seem to imply that (S) there is no moral objection to early abortion. But that may not be so. When it is not true that some man is bald, we cannot conclude that it is true that this man is not bald. In the same way, we might be right to believe both ® and (T) it is not true that there is no moral objection to early abortion. It might not be true either that there is a moral objection to early abortion, or that there isn’t. There are other dif?cult moral questions, such as some questions about the ethics of population or the morality of war, which may have no answer. It may seem a trivial fact that, when we ask whether someone is bald, this question may have no answer. But when we ask normative questions, this possibility can be more puzzling, and disturbing. We may ?nd it hard to give up the assumption that, if it is not true that some act is wrong, this act must be morally permitted. We may think that, if it isn’t true that some act is wrong, it must be true that this act isn’t wrong. But if every act must either be, or not be, wrong, must it not be similarly true that every man must either be, or not be, bald? And that is not true. Cases of this kind raise several dif?cult questions, which partly overlap with questions about imprecision. It is sometimes claimed, for example, that indeterminacy is entirely linguistic or conceptual. On this view, though our words or concepts may be vague, reality could not be vague, and we could always make our concepts more precise so that we could

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give fuller descriptions of the facts. But this view is too simple. There are indeed many cases of this kind. There are always precise truths, for example, about how many hairs there are, at any time, on some man’s head. Though the concept bald is vague, we could introduce a more precise concept, which referred to these numbers of hairs. Questions that used this revised concept might all have answers. But there are many other cases to which this view does not apply. In such cases, there is no acceptable way of making some concept precise, since such revised precise concepts would lead us to draw distinctions and make claims which don’t ?t the facts. These concepts and claims would treat these facts as being more precise than they really are. This is Sen’s objection, for example, to all of the criteria that economists have proposed about the relative badness of different patterns of economic inequality. Similar remarks apply to claims about which lives are more worth living, or about the relative strength of many con?icting reasons. If we tried to make such claims more precise, that would often make these claims false. As before, similar remarks apply to non-normative claims. We might, for example, truly claim that one of two theories was about twice as complicated, or that one of two mountains was about twice as hard to climb. But if we said that this theory was 2.17 times as complicated, or that this mountain was 2.17 times as hard to climb, these claims could not possibly be true. There are also some powerful arguments against most accounts of indeterminacy. We may assume, for example, that if some man is not bald, no removal of any single hair could make this man bald. But that seems to imply that, even if we removed every hair from this man’s head, one by one, we could not thereby make this man bald. That conclusion is clearly false. It is highly controversial how we should respond to such sorites arguments. These are like Zeno’s arguments, in ancient Greece, for the impossibility of motion. These were excellent arguments, which were answered only several centuries later when mathematicians reached a better understanding of in?nite sequences. But even before these arguments were answered, the ancient Greeks rightly assumed that these arguments must be unsound. It is clear that some things move. Similar claims may apply to sorites arguments, and to other arguments against the possibility of indeterminacy.

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If some normative questions are indeterminate, having no answer, this would provide another explanation of some normative disagreements. When people disagree about whether some act is wrong, they may mistakenly assume that this act must either be, or not be, wrong. If these people gave up this assumption, they might often cease to disagree. Such indeterminacy may also partly solve another problem. Return to the question of how much we rich people ought to give to those who are very poor. Now that each of us can so easily save so many other people from death, disablement and painful diseases, all plausible moral views require us to give a great deal. These views may seem too demanding. If I am regularly giving substantial amounts to some aid agency, I may think that I am doing well enough. But I could save some young mother’s life, at very little cost to myself. And save another’s, and save another’s. We can be knocked over or pulled apart by such thoughts. For most readers of this book, this will be their greatest moral challenge. Most of us will not give enough, and will fail in one of two ways. We may have defensible moral beliefs, but only at the cost of breaking the link between our moral beliefs and our intentions. We must then admit that we intend to act wrongly. Or we may keep this link, intending never to act wrongly, but only at the cost of having indefensible moral beliefs. There is, however, another possibility. If we give to the world’s poorest people one hundredth of our income, that is too little, and we are acting wrongly. If we gave nearly everything, that would be enough, and we would not be acting wrongly. But this question may sometimes have no answer. If we give certain proportions of our income, such as one tenth, or one quarter, it may not be true that we are not acting wrongly. But it may also not be true that we are acting wrongly. The Argument from Disagreement is sometimes claimed to have most force when it appeals to history. As Nietzsche writes: because our moral philosophers … were poorly informed and not even very curious about different peoples, times, and past ages?they never laid eyes on the real problems of morality; for these emerge only when we compare many moralities.

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It is true that, in the more distant past, people held moral beliefs that con?ict more strongly with our present beliefs. This fact would count against the view that we all have moral knowledge, since everyone’s conscience infallibly tells us which acts are wrong. But that view is clearly false. Even in ideal conditions we might all make some mistakes. Our claim should be only that, in ideal conditions, we would nearly all have suf?ciently similar moral beliefs. This Convergence Claim is not threatened by the fact that, in earlier ages, people held moral beliefs that con?ict more strongly with our present beliefs. On the contrary, this fact supports this claim. As Nietzsche admits, the earliest known moral concepts and moral codes were primitive and crude. When we look at the history of morality, we do not ?nd mere variation, or a jumble of different moralities. We ?nd a series of challenges to established beliefs, which lead to plausible revisions, and to greater agreement. One example are beliefs about the scope of the moral community. In many of the earliest moralities, this community excluded slaves and people in other tribes or cities, and gave a lesser status to serfs, peasants, people in lower castes, or women. As I have said, there has been slow but accelerating progress towards the beliefs that everyone’s well-being matters equally, and that everyone has equal moral claims. I have now described many ways in which, when different people seem to have con?icting normative beliefs, these cases may not involve pure normative disagreements. These people may be considering borderline cases, or they may not know all of the relevant facts, or they may have con?icting non-normative or meta-ethical beliefs, or they may not understand the relevant arguments, or they may be using different concepts, or be affected by some distorting in?uence, or they may fail to realize that many normative truths are matters of degree, or that many of these truths are very imprecise, or that some normative questions may not have answers. We can also plausibly believe that, partly by learning from these disagreements, we are making normative progress. These facts do not show that, in ideal conditions, we would nearly all have suf?ciently similar normative beliefs. But when we consider most actual disagreements, these disagreements do not, I believe, count strongly against this Convergence Claim.

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We can next note that, when we consider some important questions, we already have suf?ciently similar normative beliefs. With some fairly trivial exceptions, Williams assumes that we cannot claim to have made moral progress, and that there are no moral truths. In defending this skeptical view, Williams appeals to the fact that there have been deep moral disagreements. At one point, Williams writes: No doubt there are some ethical beliefs, universally held and usually vague … that we can be sure will survive at the re?ective level. But they fall far short of any adequate, still less systematic body of ethical knowledge … As Williams himself points out, however, ethical knowledge does not have to be systematic. Williams rightly criticizes Sidgwick for making that assumption. It would matter if, as Williams claims, the universally held beliefs that survived re?ection would not even give us an adequate body of ethical knowledge. But that is not, I believe, true. When Williams concedes that there are some vague, universally held moral beliefs, his example is (U) One has to have a special reason to kill someone. We can make this claim less vague. It has long been almost universally believed that (V) except in certain special cases, it is wrong to kill any innocent human being who is a member of our moral community. It is now almost universally believed that (W) this community at least includes all human beings. There is some disagreement about which are the special cases in which it is not wrong to kill some innocent human being. There are also disagreements about what counts as a living human being, about which human beings are, in the relevant sense, innocent, and about what counts as a killing. But these are all disagreements about borderline cases. Many thousands of innocent people are intentionally killed each

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year. In nearly all these kinds of case, if everyone knew the relevant facts, we would nearly all agree about whether these acts are wrong. Similar claims apply to many other kinds of act. There are several other important moral beliefs that are nearly universal. Many people act in ways that we nearly all believe to be wrong, and such acts would be much more common if they were not believed to be wrong. Though these beliefs are vague, and there is disagreement about borderline cases, we can justi?ably believe that most of these acts are wrong.

122 The Double Badness of Suffering There are some other normative beliefs which are not vague, and on which we have already reached suf?cient agreement. Few people have denied that (A) it is in itself bad to suffer. All suffering is, in this sense, bad for the sufferer. Of those who believe that events can be impersonally bad, or bad, period, few have denied that (B) it is bad when people suffer in ways that they do not deserve. These claims describe what we can call the double badness of suffering. Though suffering is always in itself bad, some suffering has good effects which may make it on the whole good, as when the pain that is caused by some injury prevents us from acting in ways that would increase this injury. Some people believe that © suffering is in itself impersonally good, or is at least not in itself bad, when and because this suffering is deserved. This belief does not con?ict with (A), since such suffering is thought to be deserved as a punishment, which it could not be if it was not, at least in one way, bad for the sufferer. Though some people have seemed to deny the double badness of suffering, these people were either not really denying (A) or (B), or they

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were under the in?uence of some distorting factor, or both. The Stoics, for example, wanted to believe both that (D) everything is for the best, and that (E) those who were virtuous and wise would have a kind of happiness that did not depend on luck, or on how these people were treated by others. These claims could not be true if it is bad to suffer. The Stoics therefore claimed that suffering is not bad, and that a wise and virtuous man would be happy even while he was being tortured on a rack. Though they made such claims, the Stoics did not really deny that it is bad to suffer. These people distinguished two kinds of badness, or disvalue, to one of which they gave a misleading name. Pain and suffering were called dispreferred indifferents. Though these states were called indifferent in the sense that they had no disvalue of the more important kind, they were called dispreferred in the sense that a wise man would try to avoid these states, when such attempts were compatible with virtue. When the Stoics called pain and suffering dispreferred, they really meant that these states were dispreferable, or non-morally bad in the reason-implying sense. That is why a wise man would try to avoid these states. As Williams points out, there was another tension in the Stoic view. If pain and suffering are not bad, why is cruelty, as the Stoics claimed, a vice? Many later thinkers have claimed, mostly as one part of a theistic view, that everything is for the best. On one version of this view, held for example by Albertus Magnus, the concepts real, good and created by God are quite different, since these concepts are expressed by words with quite different meanings, but these concepts all refer to the same property. This view is a ?ne precursor of Non-Analytical Naturalism. Of these three concepts, the concept real is the one that most clearly refers to a property that we can recognize, and that we know some things to have. When we are in great pain, for example, we know what it is for our painful sensation to be real. We also know that some innocent beings suffer in ways that are undeserved, as is true when a trapped fawn is

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burnt by some forest ?re. This fawn’s suffering cannot be bad, Albertus Magnus would have claimed, since this suffering is real and is therefore good. But on this view, when we have claimed that this fawn’s suffering is real, we cannot claim that this suffering has the different property of being good, since there is no such different property. Since this view denies that there are any such independent normative properties, it does not seriously challenge the belief that undeserved suffering is bad. On a closely related view, the privation theory, evil is claimed to be merely the absence of good. Undeserved suffering is bad only in the sense that being in agony is not better than being unconscious. When people make these implausible claims, they are trying to explain why an omniscient, omnipotent, and wholly good God allows what seem to be pointless evils. If undeserved suffering is bad, it is hard to understand why God allows such suffering to occur. Since these people deny that such suffering is bad because this denial seems to them the only solution to this problem of evil, these are not clear cases of undistorted disagreement with the view that suffering is bad. Discussing the many weaknesses and errors in our philosophical and other theoretical beliefs, Hume writes two thousand years with such long interruptions and under such mighty discouragements are a small space of time to give any tolerable perfection to the sciences. It is one such interruption to our moral thinking that, for many centuries, many people have believed that everything must be, in some way, good. Of those who hold such views, as I have said, some use normative words in unusual and irrelevant senses. Another example is Kant’s early defence of Alexander Pope’s claim ‘Whatever is, is right’. This claim was mistranslated into German as: ‘Whatever is, is good’. Schneewind writes: Kant … takes perfection to be the relation between the conscious desire to bring some state of affairs into being and the existence of a state of affairs that fully realizes this desire … it is plain that … Pope’s thesis is true, since

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34 Agreement whatever is, is as a result of God’s willing and so is perfect by de?nition … The problem of physical evil [or the badness of pain] is resolved: there simply is none.

Kant’s de?nition does not, however, provide a solution. The problem of evil is in part that (F) God seems to will the existence of a world in which there are some things that are in themselves bad, such as undeserved suffering. If Kant claimed that such suffering was good or perfect in his special sense, he would mean only that (G) undeserved suffering that is willed by God is willed by God. This claim cannot show that such suffering is not bad. Though Kant elsewhere warns that concealed tautologies are trivial, he forgot that here. There is another way in which, when people deny that suffering or pain is bad, they may not be using words like ‘bad’ in relevant senses. Kant was not doing that, for example, when he later defended the Stoic view that physical pain is not bad. Kant meant only that such pain is not morally bad, in the sense in which people and their acts can be bad. Kant is not denying that physical pain is bad in the non-moral sense of being a state that we have reasons to want not to be in. Ross uses ‘bad’ in another irrelevant sense. When Ross denies that his own pain is bad, he means only that his pain is not something that he has a prima facie duty to prevent. There are some other people who seem to deny that suffering is bad. One example is Nietzsche. But as I argue in the next chapter, this is not really Nietzsche’s view. There are also some meta-ethical skeptics, whose doubts are irrelevant here. I know of no one who has both understood the claim that suffering is doubly bad, in the reason-implying senses, and also in an undistorted and unbiased way rejected this claim. The double badness of suffering is already, I believe, very close to being a universally recognized truth.

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Though my examples have involved physical pain, these claims also apply to mental suffering. Such suffering can be much worse than much physical pain. Of those who have never been severely depressed, for example, many do not realize how awful this state of mind can be. And many of those who kill themselves are not trying to avoid physical pain. When we ask which things can be very bad, the only plausible answers are: great suffering and morally bad people, mental states, and acts. There are many things that may be in themselves good, but the absence of these things is not in itself bad. Friendship, love, knowledge, and various achievements may be in themselves good, but solitude, ignorance, and inactivity are not in themselves bad. False beliefs have been claimed to be bad, but they could not be, in themselves, great evils. And when Moore claims that it is in itself very bad to enjoy looking at ugly things, that is mere aesthetic snobbery. Though I have claimed only that (B) undeserved suffering is in itself impersonally bad, I believe that (H) no one could ever deserve to suffer, so that (I) all suffering is in itself both bad for the sufferer and impersonally bad. Unlike (B), however, (H) and (I) are not yet universally recognized truths. And unlike those who believe that everything is for the best, some of those who have rejected (H) have not been obviously affected by some distorting in?uence. I can only hope that, in ideal conditions, these people would accept both (H) and (I). There may be some undiscovered argument by which, at last, such people will be convinced.

35 Nietzsche 123 Revaluing Values Though we nearly all believe in the double badness of suffering, that does not answer the Argument from Disagreement, since there are other normative questions on which many people have con?icting beliefs. We can justi?ably reject this argument if we can justi?ably believe that, in ideal conditions, we would nearly all reach suf?cient agreement. According to this Convergence Claim: If everyone knew all of the relevant non-normative facts, used the same normative concepts, understood and carefully re?ected on the relevant arguments, and was not affected by any distorting in?uence, we would have similar normative beliefs. I cannot hope to prove that, in these ideal conditions, we would have suf?ciently similar beliefs. Nor, however, could others prove that we would not have such beliefs. We can at most hope to answer particular challenges to these predictions. I shall here discuss one such challenge. Nietzsche seems to disagree deeply with some of the normative beliefs on which I predict that most of us would agree. It may seem implausible to claim that, in ideal conditions, we and Nietzsche would have agreed. Nor can I simply ignore Nietzsche, since he is the most in?uential and admired moral philosopher of the last two centuries. Though Sidgwick tells us more of the truth, Nietzsche has been read by about a thousand times as many

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people. So I shall brie?y defend my view that Nietzsche’s claims and arguments do not count strongly against my prediction. If you do not admire Nietzsche, being in this way unlike me, you may prefer to skip this chapter. Nietzsche sometimes claims that pain and suffering are good. In most cases, Nietzsche means only that pain and suffering are necessary parts of what is on the whole good, either as causes or as effects. He writes, for example, that ‘profound suffering makes noble’, and is the source of all great achievements. Such suffering would be instrumentally good, by having good effects. That is compatible with the view that all suffering is intrinsically or in itself bad. But in some passages Nietzsche seems to reject this view. For example, Nietzsche writes that ‘pain does not count as an objection to life’, and he suggests that pain and suffering ‘are not only necessary but also desirable for their own sake’. These claims seem to con?ict deeply with what most of believe. There is, however, no deep disagreement here. Nietzsche ?rst accepted Schopenhauer’s pessimistic view that, given the suffering of human beings and other animals, it would be better if the Universe did not exist. Though Nietzsche later rejected this view, and tried to believe that suffering is not bad, he did not succeed. When Nietzsche claims that suffering is in itself good, he is defending the wider view that everything is good. In his words: everything actually happens as it should happen … every kind of ‘imperfection’ and the suffering that result are also part of the highest desirability. In defending this view, Nietzsche claims that we can make any event good by affirming or welcoming this event. He even suggests that, if we welcome anything that happens, we thereby make everything that happens, or the whole history of the Universe, as good as it could possibly be. If we say Yes to a single moment, Nietzsche writes, we have said Yes to all existence … in that one moment of our saying Yes, all eternity was welcomed, redeemed, and justi?ed.

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This thrilling claim is clearly false. More cautiously, Nietzsche elsewhere writes: My formula for greatness in a human being is love of fate: that one wants nothing other than it is, not in the future, not in the past, not in all eternity. Though he rejected the Buddhist advice that we should try to reduce our suffering by having fewer desires, Nietzsche here implausibly suggests that we should try to have only one desire, by wanting the whole of reality to be just as it is. Like theistic versions of the view that everything is for the best, Nietzsche’s claims about welcoming reality do not strongly challenge the belief that suffering is bad. Nietzsche seems to concede this point when he calls his view ‘the pessimism of strength’, and refers to his ‘attempt to acquiesce in the world as it is’. Of Nietzsche’s reasons for making this attempt, one was the fact that his bad health gave him frequent, prolonged, and intense pain. When he tried to believe that everything is good, including all his suffering, this was in part what Nietzsche calls a rational response to his condition, by making his suffering easier to bear. This response was rational because Nietzsche’s suffering was bad. Nietzsche also claims that we should change our view about our responses to the suffering of others. To give a brief description of postKantian German ethics: Schopenhauer rejected Kant’s moral theory, appealing instead to the value of compassion, and Nietzsche rejected Schopenhauer’s theory, by denying the value of compassion. Since Nietzsche makes some harsh and brutal claims, we can ?rst note that he was highly compassionate, in a way that he feared would disable him. In Nietzsche’s words: my greatest dangers lie in pity … I imagine the sufferings of others as far greater than they really are … I only need to expose myself to the sight of some genuine distress, and I am lost.

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When Nietzsche collapsed into madness in a street in Turin, he was putting his arms around a tired cart horse to protect it from a further beating. In denying the value of pity or compassion, Nietzsche nearly always means that this attitude or emotion, and the acts to which it leads, have bad effects. For example, Nietzsche writes: pity increases the amount of suffering in the world. Some of Nietzsche’s claims are plausible, as when he writes that misery is more contagious than happiness. When someone else’s depression makes us deeply depressed, that is in itself bad, and makes us less able to help this other person. But Nietzsche makes some other, implausible claims. For example, he claims that pity and compassion involve a tremendous danger to man … . mankind is in danger of perishing through an ideality hostile to life. In explaining this danger, Nietzsche writes: That the sick should not make the healthy sick … should surely be our supreme concern on Earth; but this requires above all that the healthy should be segregated from the sick, and he urges us to grasp in all its profundity?and I insist that this matter requires profound understanding?how it cannot be the task of the healthy to nurse the sick and make them well. These claims are not profound. Nietzsche is not referring here to contagious physical illness. He had no reason to believe that, if the healthy spend some time nursing the sick, that would disable these healthy people. Nietzsche also had eugenic worries about the degeneration of the species man, or homo sapiens. By caring for the weak and the sick, Nietzsche feared, we shall bring ‘evolution to a standstill’ and ‘thwart natural selection’. But such fears cannot explain the strength of some of Nietzsche’s claims, as when he writes that ‘a philosophy of pity … would destroy us, and in a very short time’.

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Nietzsche’s claims are best explained, I suggest, as responses to his own sensitivity to suffering. To live cheerfully and with a good conscience, Nietzsche claims, each of us needs to have some horizon around ourselves. Though our immediate surroundings can be bright, the rest of the world must seem dark to us. If instead we were fully aware of the sufferings of others, we would be ‘overwhelmed by compassion’, and would not want to live. As these remarks show, Nietzsche’s claims about pity did not involve indifference to the suffering of others. Nietzsche feared that, after losing belief in God, Europeans would become pessimistic Buddhists; but in one of his brief lists of virtues, Nietzsche includes the two supreme Buddhist virtues: insight and compassion. As well as denying that pain is bad, Nietzsche sometimes seems to deny that pleasure and happiness are good. Describing a kind of person whom he admires, Nietzsche writes that this person doesn’t give a damn about whether he will achieve bliss?he has no such interest in happiness in any form whatsoever. But this remark is misleading. There are many passages in which Nietzsche’s claims imply that some kinds of joy and happiness are great goods. His ideal human beings would have, he writes, an ‘extraordinary happiness’ and ‘the highest and most illustrious human joys’. Since Nietzsche makes many con?icting claims, it is never enough to quote a few remarks. Nietzsche did express contempt for some pleasures, and he claimed that pain is not an objection to life. But in most of what he writes, Nietzsche assumes that pain and suffering are bad, and that joy and happiness are good. In one of his last notebooks, for example, Nietzsche describes existence as being ‘blissful enough to justify even monstrous suffering’. Nietzsche gives many other descriptions of his ideal human beings. Some of his words and phrases are: having the highest power, the glory of life and force, the greatest magni?cence, splendour, inexhaustible fruitfulness, creative, healthy, rich, noble, enterprising, profound, independent, brave, strong, triumphant, aggressive, destructive, overthrowing, capable of arousing fear.

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What is most distinctive here is Nietzsche’s emphasis on what he calls ‘manly and warlike virtues’. Some of Nietzsche’s claims have been widely misunderstood. Of those who know something of Nietzsche’s views, many would be surprised to learn that he detested both militarists and anti-semites, and proposed that, after its victory over France, the new German Empire should unilaterally disarm. When Nietzsche seems to be glorifying physical power, or war, that is sometimes not what he is doing. He uses metaphors of physical strength and struggle to describe the efforts that are needed to make scienti?c or philosophical discoveries, or to create great works of art. There are, however, many other claims which are not metaphorical. Some of these claims are not serious, as when Nietzsche suggests, as a promising remedy for the weaknesses of ‘tame domestic men’: universal military service, with real wars and no more joking. Other claims are serious. When explaining why he opposes the virtues of compassion and the relief of suffering, Nietzsche writes: Nothing would be more expensive than virtue: for in the end it would give us the Earth as an in?rmary, and ‘Everyone to be everyone else’s nurse’ would be the pinnacle of wisdom. True, the much-desired ‘peace on Earth’ would have been achieved! But how little ‘good will among men’! How little beauty, exuberance, daring, danger! How few ‘works’ for whose sake it would still be worth living on the Earth! And oh! absolutely no more ‘deeds’ whatsoever! All the great works and deeds which have remained standing and not been washed away by the waves of time?were they not all, in the deepest sense, great immoralities? Nietzsche cannot be thinking here of the great works of writers, composers, and artists. Most of these works were not, and did not depend upon, great immoralities. Some of Nietzsche’s claims may be as harmless as Siegfried’s declaration, when leaving Brunnhilde, that he is off to perform some new deeds. Siegfried’s hope may be only to ?nd another dragon whom he can kill.

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Nietzsche recommends that we live dangerously, by building our cities on the slopes of a volcano. Such pointless risk-taking might not involve great immorality. Nietzsche also welcomes the prospect of future wars. This attitude was common when Nietzsche wrote, since no long European war had been fought for 70 years, and Europeans had learnt little from the horrors of the American Civil War. The outbreak of the First World War was later widely greeted with joy. War was welcomed because it would allow men to display the virtues of heroism, idealism, and comradeship. William James therefore argued that we need some moral equivalent of war, in which these virtues could be used in better ways. What Nietzsche welcomes, however, is the prospect of ‘the greatest and most terrible wars’. And he writes: Think of what is owed to Napoleon: almost all the higher hopes of this century … . For a similar prize one would have to wish for the anarchic collapse of our whole civilization. Though Nietzsche would not have regarded Hitler as a similar prize, there is too little difference between these two aggressive warlords, for whose glory millions died. Nietzsche makes other ominous claims. He hopes that there will be a master race, the future ‘masters of the earth’?a new, tremendous aristocracy built upon the harshest self-legislation, in which the will of philosophical men of violence and artist tyrants is made to last for thousands of years. He also writes: A masterful race can only grow up out of dreadful and violent beginnings. Problem: where are the barbarians of the twentieth century? I know my fate. One day there will be associated with my name the recollection of something frightful.

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Nietzsche’s name is rightly associated with some events that are, in some ways, even worse than two terrible world wars. When Nietzsche writes that churches have ‘the bad odor of death chambers’, that phrase is a grim coincidence. But he makes some other, appalling claims. In most books about Nietzsche, these claims are either ignored, or presented or described as less monstrous than they really are. Safranski writes that, on Nietzsche’s view, it is permissible to use mankind as material for the production of genius, masterpieces, or even the Ubermensch. But Nietzsche does not merely write ‘use’. A healthy aristocracy, he writes, accepts with good conscience the sacri?ce of untold human beings who, for its sake, must be reduced and lowered to incomplete human beings, to slaves, to instruments. Safranski continues: And if the masses are more of a hindrance, space has to be created?by getting rid of the ‘degenerates’, if necessary. Even in his fantasies of annihilation, however, Nietzsche was still a highly sensitive soul and hence more amenable to the option that the ‘mis?ts’ could offer to ‘sacri?ce’ themselves willingly. Though Nietzsche was a highly sensitive soul, that is not shown by the remark that Safranski quotes. When he carried out Hitler’s order that millions of people be killed, Himmler would have preferred it if these people had willingly sacri?ced themselves. Foot similarly writes that some passages in Nietzsche ‘seem to license injustice’, and Schacht writes that he has chosen to ignore Nietzsche’s ‘rhetorical excesses’. But Nietzsche refers to ‘the remorseless destruction of all degenerate and parasitic elements’, and he claims that, ‘in order to shape the man of the future through breeding’, we should be ready to annihilate millions of failures, and not to be overcome by the suffering that we create, though nothing like it has ever existed!

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These claims are not mere rhetorical excesses, nor do they merely seem to license injustice. Nietzsche also writes: The weak and the failures shall perish: ?rst principle of our love of man. And they shall even be given every possible assistance. That second sentence could be Hitler speaking. When we encourage people to read Nietzsche’s books, we should admit that Nietzsche made some utterly appalling claims. Anscombe writes that, if someone accepts Sidgwick’s moral beliefs, ‘I do not want to argue with him; he shows a corrupt mind’. Given some of the claims that I have just quoted, Nietzsche’s mind may similarly seem too corrupt for his beliefs to be worth considering. But that response would be a mistake. When we ask whether normative disagreements count decisively against the view that there are some normative truths, we cannot simply ignore some of the people with whom we disagree. We should ask why these people hold their views, and whether and how we and they might reach agreement. Anscombe’s view provides one example. Anscombe believed that certain acts would always be wrong, whatever their consequences. It would be wrong, for example, either to convict and execute some person whom we knew to be innocent, or to commit adultery or sodomy, even if we knew that our act would prevent some nuclear war that would kill millions of people. Some people would ignore these beliefs as too obviously mistaken. But if instead we consider Anscombe’s view, we discover how we might resolve this disagreement. Anscombe believed that such acts are wrong because they are forbidden by God. If we and Anscombe had the same beliefs about God, we might then have the same moral beliefs. Similar remarks apply to Nietzsche’s views. Rather than simply ignoring these views, we should ask why Nietzsche held them. I have quoted James’s remark: Sidgwick displayed that re?ective candour that can at times be so irritating. A man has no right to be so fair to his opponents.

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We cannot be too fair to our opponents. But our main aim is not fairness, but to reach the truth. Nietzsche was a brilliant thinker, who made many claims that are original, important, and true. We should ask whether our disagreements with Nietzsche give us reasons to doubt our own views. The appalling claims that I have quoted give us no such reasons. Our problem is only to explain why, given Nietzsche’s sensitivity to the suffering of others, he made such claims, and had such murderous fantasies. Since Nietzsche made these claims in his last productive years, they may be the ?rst signs and effects of his approaching madness. There seem to be other such effects. In Ecce Homo, for example, Nietzsche writes: I am mild and benevolent towards everyone … It is my fate to have been the ?rst decent human being … I am a bringer of good tidings such as there as never been … only after me is it possible to hope again. But he also writes: I am by far the most terrible human being there has ever been … a fearful explosive material from which everything is in danger … . I know joy in destruction … and am the destroyer par excellence … I promise a tragic age. When Nietzsche made these extreme and con?icting claims, his mind was starting to disintegrate, thereby freeing what he earlier called the savage beast which, locked in the cellars beneath the foundations of culture, howls and rages. Nietzsche also makes some remarks which seem to exult in cruelty. For example: Let us not be gloomy as soon as we hear the word torture’ … . Today, when suffering is brought forward as the principle argument against existence … one does well to recall the

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35 Nietzsche ages in which the opposite opinion prevailed, because men were unwilling to refrain from making suffer and saw it as an enchantment of the ?rst order.

When referring to the Greek God whom he most admired, Nietzsche writes: ‘Dionysus: sensuality and cruelty’. And when describing ‘the oldest festal joys of mankind’, Nietzsche lists ‘three principal elements: sexuality, intoxication, cruelty’. These passages suggest that Nietzsche had sadistic sexual fantasies. Such fantasies are had by some highly considerate and conscientious people. Nietzsche does not endorse these fantasies, and he writes: We should regard men who are cruel as stages of earlier cultures which have remained behind … they show us what we all were, and ?ll us with horror. In listing Nietzsche’s descriptions of his ideal man, I left out two words. Nietzsche calls this man wicked and evil. He also claims that ‘everything evil, terrible, tyrannical in man … serves the enhancement of the species’, and he describes one of his books as ‘pouring its light, its love, its tenderness upon nothing but evil things’. These claims are intended to be shocking. Though Nietzsche tried hard to reach the truth, he also had other, con?icting aims. Nietzsche says many things for the sake of paradox, as when he inverts the claim that a good cause can justify even war, declaring instead that a good war justi?es any cause. That could be a witticism by Oscar Wilde. Nietzsche also describes himself as reversing Christian values. He claims to be seeking everything strange and questionable in existence, all that has hitherto been placed under a ban by morality, and he writes I recognize virtue by … its doing precisely everything that is otherwise forbidden. If we merely praise whatever Christian morality condemns, we cannot hope to reach the truth. We would be relying, not on our ability to

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get things right, but on the ability of Christian moralists to get things wrong. Describing the new philosophers whom he hopes to inspire, Nietzsche similarly writes: it must offend their pride, also their taste, if their truth is supposed to be a truth for every man. One must shed the bad taste of wanting to agree with many. ‘Good’ is no longer good when one’s neighbour mouths it. When we ask what is good, we cannot aim both at the truth and at disagreeing with our neighbour. Our neighbour’s beliefs might be true. These remarks illustrate a wider point. I am asking whether, in ideal conditions, we and Nietzsche would have had suf?ciently similar normative beliefs. When Nietzsche is not aiming only at the truth, these ideal conditions are not met. Nietzsche often has other aims. When he writes ‘Not for a single hour of my life have I been a Christian’, Nietzsche must have remembered that this claim was false. After calling some of Wagner’s music ‘the greatest masterpiece of the sublime I know’, Nietzsche claims that Wagner wrote ‘perhaps the worst music ever written’. He calls Germans ‘this utterly irresponsible race which has on its conscience all the great disasters of civilization’. And he writes ‘Let us remove the highest goodness from the concept of God: it is unworthy of a god.’ These are not the claims of someone who always asks, when a thought occurs to him, ‘Is that really true?’ Nietzsche admits that he is not always aiming at the truth. He calls his reversal of Christian morality ‘playful’ and ‘an act of willfulness, and pleasure in willfulness’. Discussing those whom he calls we immoralists, Nietzsche writes: we would gain power and victory even without truth. The magic that ?ghts for us, the eye of Venus that ensnares and blinds even our opponents, is the magic of the extreme, the seduction that every extreme exercises … we are extreme. Nietzsche tried to combine a bold and exuberant spirituality that runs presto and a dialectical severity and necessity that never takes a false step.

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We should expect that, in some cases, Nietzsche achieves only the ?rst of these aims. Nietzsche himself writes that, when we cease to be Christians, for a while we don’t know which way to turn. We rush headlong into the opposite valuations. In other passages, rather than claiming that his ideal man would always do whatever Christian morality claims to be evil, Nietzsche proposes a less implausible view. His ideal man, he writes, would be beyond good and evil, in the sense of ignoring these moral categories. This allows Nietzsche to make claims about what is good or bad in other, non-moral senses. Many of the same acts, Nietzsche claims, ought to be done, but for other, non-moral reasons. So we can now turn to Nietzsche’s rejection of morality, and his proposed alternatives.

124 Good and Evil ‘What de?nes me’, Nietzsche writes, ‘ … is that I have unmasked Christian morality.’ Nietzsche claims that God is dead, by which he means that Europeans are ceasing to believe that God exists. Without the support of this belief, Nietzsche argues, morality as understood by Europeans will not be able to survive. Before I discuss that argument, I shall comment brie?y on some of Nietzsche’s other arguments. Though Nietzsche’s main target is Christian morality, he rejects all moralities, including those of atheists, or the ancient Greeks. ‘As the Sophists claimed’, he writes, ‘it is a swindle to talk of moral truths’. He also writes: Moral judgments are … never to be taken literally: so understood they contain mere absurdity. There are no moral facts, only moral interpretations of the facts. I deny morality as I deny alchemy, that is, I deny what they presuppose.

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One such presupposition, Nietzsche claims, is that we are morally responsible in ways that can make us guilty, and deserve to suffer. Nietzsche denies that we have the kind of freedom that such responsibility requires. In his words: the history of the moral sensations is the history of an error, the error of responsibility, which rests on the error of free will. Nietzsche is right, I believe, to deny that we can deserve to suffer. Many people accept Nietzsche’s claim that, without such responsibility, morality is undermined. That is why Kant argues that, since we have moral duties, we must have some kind of incomprehensible freedom in a timeless noumenal world. But as Sidgwick and others claim, Nietzsche’s claim is a mistake. Even if no one could ever deserve to suffer, we can have moral duties, and our acts can be right or wrong. Nietzsche also argues that morality presupposes a false psychology. We act morally, Nietzsche assumes, only when we act on some purely altruistic desire, or we are moved purely by the belief that some act is our duty. Nietzsche claims that there are no such acts. In his words this whole species of intentions and actions is imaginary; the world to which alone the moral standard can be applied does not exist at all?there are neither moral nor immoral actions. Nietzsche’s psychological claims are, I believe, false, and even if they were true, morality would not be undermined. Morality does not presuppose any such psychology. Nietzsche makes some fascinating claims about the origins of morality, especially Christian morality, and he sometimes suggests that these claims undermine morality. But as Nietzsche himself points out, that is not so. When we learn about the origins of morality, or of many other features of human life, we learn very little about the present state, or value, of these things. In Nietzsche’s words, ‘The more insight we possess into an origin the less signi?cant does the origin appear.’ Nietzsche’s rejection of morality also depends in part on his awareness of the differences between the moralities of different cultures and ages.

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‘The real problems of morality emerge’, Nietzsche writes, ‘only when we compare many moralities.’ But Nietzsche does not discuss what such moral disagreements show. He does not, for example, consider and criticize the view that we are resolving our disagreements, and making moral progress. What is most relevant here is another way in which Nietzsche was led to assume that there are no moral truths. In all English translations of Kant’s Groundwork, Kant is presented as claiming that (A) all imperatives, or commands, are expressed with an ‘ought’. This claim is false, since no imperatives could be expressed with an ‘ought’. But Kant did not make this claim. All imperatives, Kant writes in German, are expressed with the word ‘sollen’. That is slightly inaccurate. What Kant could have truly claimed is that (B) all imperatives in German could be expressed with the word ‘sollen’. This German word can be used like the English words ‘shall’ or ‘shalt’ in commands like © Thou shalt not kill! which means the same as (D) Don’t kill! But the word ‘sollen’ has another sense. This word can also be used like the English word ‘ought’ in normative claims like (E) You ought not to kill. Unlike commands such as © and (D), which could not be either true or false, claims like (E) might be true or false. © and (E) have quite different meanings, even if we believe that God’s command ‘Thou shalt not kill!’ makes it true that we ought not to kill. Unlike the German word ‘sollen’, the English word ‘ought’ cannot be used both to express commands and to state normative claims. Nor does any other English

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word have this double use, or these two senses. This fact makes it impossible to translate Kant’s German sentence into English, except as a sentence like (B) which is about the word ‘sollen’. The facts that I have just mentioned may seem unimportant, except for those who are translating certain German sentences into English. But that is not so. Though German-speakers can understand the difference between commands and normative claims, this double use of ‘sollen’ makes it easier to overlook this distinction. Some Germans have been led to assume that moral claims are commands. And that assumption can make a great difference. We cannot ask whether commands are true or false. When people in positions of authority tell us to act in certain ways, we may then be more likely to obey these commands, because we cannot believe that such obedience would be wrong. In German history between around 1850 and 1945, this failure to distinguish between commands and normative claims had many bad effects. (Germany is quite different now.) This double use of ‘sollen’ also had some bad effects on post-Kantian German moral philosophy. When moral claims are taken to express commands, that encourages the view that morality essentially depends on God. Kant rightly rejects this view. When Kant ?rst states his Formula of Universal Law, he may mean that we ought to act only on maxims that we could rationally will to be universal. But Kant nearly always states his formula as an unambiguous command, the Categorical Imperative. For more than half a century, Schopenhauer writes, ethics has been reclining on the comfortable cushion that Kant had arranged for it, namely the categorical imperative of practical reason. In our day, however, this imperative is often introduced under the name of ‘the moral law’, which is less ostentatious but smoother and more current. Under this name the imperative slips unobserved into the house after making a slight bow to the faculty of reason and experience; but when once in, there is no end to its orders and commands, without its ever being further called to account.

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Schopenhauer elsewhere uses the word ‘sollen’, which I shall here mistranslate as ‘ought’, so that we can see more clearly what difference it makes that the word ‘sollen’ can also express commands. Schopenhauer writes: Who tells you that there are laws to which our conduct ought to be liable? … What justi?cation have you for forcing on us, as the only possibility, a system of ethics framed in the legislative imperative form? Every ought derives all sense and meaning simply and solely in reference to threatened punishment or promised reward … the concept of ought, the imperative form of ethics, applies solely to theological morality, and … outside this it loses all sense and meaning. Since Schopenhauer does not believe that there is a God who makes commands backed up with threats and promises, he concludes that there is nothing that we ought morally to do. Rather than discussing such oughts, Schopenhauer claims, philosophers should aim to understand how people are motivated to act morally, and to describe the place of morality in human life. On Kant’s view, Schopenhauer also writes, a moral law ought to imply ‘absolute necessity’. But such necessity is everywhere characterized by the inevitability of the resulting effect. Now how can we speak of absolute necessity in the case of these alleged moral laws, as an example of which he mentions Thou shalt not lie? For as we know and as he himself admits, they remain frequently, indeed as a rule, ineffective. These remarks assume that, if we claim it to be morally necessary not to lie, we are claiming that no one ever tells lies. Schopenhauer here fails to distinguish between normative and psychological claims. Like Schopenhauer, Nietzsche both assumes that morality depends on God, and denies that God exists. Nietzsche therefore writes:

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there is no ‘ought’ any more. Morality … has been destroyed by our way of re?ection every bit as much as religion. Some of the English, Nietzsche remarks, have a different view. These people believe that they know ‘intuitively’ what is good and evil … and they therefore suppose that they no longer require Christianity as the guarantee of morality. Nietzsche here correctly describes what some of his English contemporaries believed. An acquaintance of George Eliot writes I walked with her once in the Fellows’ Garden … on an evening of rainy May … taking as her text … the words God, Immortality, Duty?she pronounced with terrible earnestness, how inconceivable was the first, how unbelievable the second, and yet how … absolute the third. Moral philosophers like Mill and Sidgwick also denied that God exists. These English moralists, Nietzsche writes, continue to believe in good and evil, and feel the victory of the good and the annihilation of the evil to be a task. Nietzsche calls this view na¨?ve. Morality cannot survive, he writes, when the sanctioning God is gone … The ‘hereafter’ is absolutely necessary if belief in morality is to be upheld. Nietzsche here assumes that, without God’s threats of punishments in a future life, people would not be motivated to act morally. The English moralists had such fears. But as they rightly claimed, we can have other motives for acting morally, some of which do not depend on belief in God. There are other ways in which morality might depend on God. If the moral use of ‘ought’ expresses God’s commands, morality would directly depend on God. In Dostoyevsky’s phrase, if God does not exist, everything is permitted. Nietzsche also writes that, when our conscience speaks,

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35 Nietzsche an authority speaks?who speaks? One may forgive human pride if it sought to make this authority as high as possible … Therefore?God speaks!

Only God, Nietzsche assumes, would be a high enough authority. If morality merely expressed the commands of our society, or ancestors, or tradition, we would not have suf?cient reason to obey these commands. The English moralists would reject these claims, since these people deny that morality consists of commands. When these people claim that we ought to act in certain ways, they are stating what they believe to be moral truths. Nor do Nietzsche’s claims about authority apply to such truths. This point may be clearer with non-moral normative truths. If I claim that you ought to believe Darwin’s theory, or that you ought to stop smoking, you could not object that I do not have the authority to issue these commands. These claims aren’t commands. In one passage, Nietzsche writes: This morality is by no means self-evident: this point has to be exhibited again and again, despite the English dimwits … For the English, morality is not yet a problem. Since it is only beliefs that could be self-evident, this remark seems to allow that moral claims state beliefs, which might be true. But Nietzsche does not try to show that no such beliefs are true. Nietzsche’s aims are to describe our existing moral beliefs, to explain their origin, and to assess their effects. Like Schopenhauer, Nietzsche writes To determine what is, what it’s like, appears unutterably higher and more serious than any ‘it ought to be’. There is another passage in which Nietzsche may seem to be discussing whether there are moral truths. Schopenhauer appeals to a fundamental principle on which all teachers of ethics really agree, though they state it in different ways: Harm no one, help everyone when you can. In one such different statement:

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We ought not to harm people, and we ought to help them when we can. Nietzsche rejects this principle, calling it ‘insipidly false and sentimental’. But this use of ‘false’ is misleading. Nietzsche does not ask whether it is true that we ought not to harm people, and that we ought to help them when we can. Frivolously, Nietzsche merely writes: whoever has once felt deeply how insipidly false and sentimental this principle is in a world whose essence is will to power, may allow himself to be reminded that Schopenhauer, though a pessimist, really ?played the ?ute. Every day, after dinner; one should read his biography on that. And incidentally: a pessimist, one who denies God and the world but comes to a stop before morality?who af?rms morality and plays the ?ute?the harm no one morality? what? Is that really?a pessimist? There are hints of two arguments here. As before, Nietzsche assumes that morality depends on God. He also suggests that, since our deepest motive is a will to power, it is sentimental to be morally opposed to acts that harm other people. For this objection to be good, Nietzsche would have to assume that, given our nature, we would seldom be able to refrain from harming other people. That assumption would be clearly false. I am asking whether, in ideal conditions, we and Nietzsche would have had suf?ciently similar normative beliefs. That question applies only when we and Nietzsche use the same normative concepts. Since Nietzsche assumes that moral claims express commands, he seldom if ever uses the concept that we can express in English with the phrase ought morally. So Nietzsche’s claims cannot straightforwardly con?ict with our beliefs about what we ought morally to do. There can be disagreements of less straightforward kinds, since different normative concepts and beliefs may partly overlap. Given some of Nietzsche’s claims, we can try to predict whether, if we and

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Nietzsche had used the same concepts, and the other ideal conditions were met, we would have had similar normative beliefs. The ‘herd-morality’ that Nietzsche rejects has, he claims, two main doctrines: pity for all that suffers and equality of rights. As we have seen, Nietzsche objects that pity increases the amount of suffering in the world. We would agree that, if that implausible claim were true, pity would have bad effects. There is no normative disagreement here. When Nietzsche rejects equality of rights, this disagreement is, in part, normative. Since Nietzsche gives supreme weight to the greatest creative achievements in art, science, and philosophy, he also gives supreme value to the existence and well-being of the few people who are capable of these achievements. Nietzsche believes that these few people, whom we can call the creative elite, should be given special rights. When he makes such claims, Nietzsche may seem to be denying that everyone’s well-being matters equally. That would be a deep disagreement with what most of us now believe. This disagreement is, however, less deep than it seems. Though Nietzsche’s main concern is for these creative achievements, and the conditions that make them possible, he believes that other, uncreative people can bene?t from these achievements. ‘The artist creates his work’, Nietzsche writes, ‘for the good of other men.’ Since Nietzsche fears that such great achievements will become impossible in an egalitarian society, he predicts that our happiness will soon have to depend on the glorious works of art that we have inherited from the past. In such a world, Nietzsche gloriously writes, the sun would have set, but the sky of our life would still glow with its light. These claims do not give less weight to the well-being of uncreative people. Nietzsche also believes that, though his creative elite should be given special privileges, such as leisure and freedom, such inequalities are, in a way, unfair, and impose responsibilities on this elite. In his words:

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This freedom is in fact a heavy debt which can be discharged only by means of great deeds. In truth, every ordinary son of the earth has the right to regard with resentment a man favoured in this way. To justify their privileges, the elite must create the works and produce the achievements that will bene?t others. Only then, Nietzsche writes, could these creative people say Look after me, for I have something better to do, namely to look after you. Though Nietzsche makes some rude and dismissive remarks about people who are mediocre, he also writes: Hatred of mediocrity is unworthy of a philosopher … Precisely because he is the exception, he must take the rule under his wing, and must help everything average to keep up its faith in itself. When the exceptional human being treats the mediocre more tenderly than himself and his peers, this is not mere courtesy of the heart?it is simply his duty. Nietzsche often refers to the ‘extent to which to live and to be unjust are one and the same thing’. Discussing inequalities of wealth, he writes: What is needed is not a forcible redistribution but a gradual transformation of the mind: the sense of justice must grow greater in everyone, the instinct for violence weaker. When we interpret Nietzsche, as I have said, nothing can be proved by quoting a few claims. Nietzsche makes some other, strongly antiegalitarian claims. But these quotations show that Nietzsche had some strongly egalitarian beliefs. There is no straightforward disagreement here. Nietzsche, I suggest, was an egalitarian about the badness of suffering. He does not seem to believe that suffering is in itself less bad when it is

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endured by mediocre human beings. Nietzsche also claims that, when we consider the lives of non-rational animals, we should be ‘profoundly indignant’ about their ‘senseless suffering’. Most of us believe that, even if the suffering of other animals can be as bad as ours, what is best in human lives has much greater value. When Mill discusses such value, he distinguishes between lower pleasures and those pleasures that involve our higher mental faculties. Mill also claims that, if we know what both kinds of pleasures are like, we would not give up such higher pleasures, even if they involved great discontent, for the sake of any amount of the lower pleasures. We would regard these higher pleasures as having in?nitely greater value. Mill therefore writes It is better to be a human being dissatis?ed than a pig satis?ed; better to be Socrates dissatis?ed than a fool satis?ed. Nietzsche similarly claims that, when compared with mediocre pleasures, what is best in the lives of his creative elite has such in?nitely greater value. Mill is a utilitarian egalitarian, and Nietzsche is a perfectionist anti-egalitarian. But as these quotations show, these views are much closer than these labels suggest. There is no deep disagreement here. Though Nietzsche often expresses contempt for Utilitarians, there are some other striking similarities between these people’s views. Nietzsche writes: Nowadays there is a thoroughly erroneous moral theory which is celebrated especially in England: it claims that judgments of ‘good’ and ‘evil’ sum up experiences of what is ‘useful’ and ‘unuseful’; that what is called good preserves the species while what is called evil harms it. In truth, however the evil drives are just as useful, species-preserving, and indispensable as the good ones?they just have a different function. Nietzsche fails to see that this English theory overlaps with Nietzsche’s own view. Like Nietzsche, Bentham, Mill, and Sidgwick challenged conventional morality, arguing that some acts and motives that are claimed to be bad are in fact good, because they have good effects. These

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Utilitarians would accept Nietzsche’s claim that, when what are called evil drives are just as useful, these drives are not evil, but good. Nietzsche’s main questions, he writes, are these: Under what conditions did man devise these value-judgments good and evil? And what value do they themselves possess? Have they hitherto hindered or furthered human prosperity? Are they a sign of distress, impoverishment, of the degeneration of life? Utilitarians similarly ask whether these value-judgments have hindered or furthered human happiness. Nietzsche refers, not to happiness, but to prosperity. But he is not referring to material wealth, for which he often expresses contempt, and he also mentions distress. So there is little difference here. There are other similarities. Nietzsche believes that no one could deserve to suffer. Utilitarians agree. Nietzsche denies that our acts have supreme value when we act for duty’s sake, or act with purely altruistic motives. Utilitarians agree. Since many people believe that we can deserve to suffer, we have not yet reached agreement on this question. But we can reasonably hope that, in ideal conditions, we would all have suf?ciently similar normative beliefs. When Nietzsche defends his belief that no one can deserve to suffer and to be punished, he expresses one such hope. Nietzsche describes one of the greatest ideas that mankind can have, the idea of progress to excel all progress. Let us go forward a few thousand years together, my friends. There is a great deal of joy still reserved for mankind of which men of the present day have not had so much as a scent! And we may promise ourselves this joy … only provided that the evolution of human reason does not stand still! One day we shall not be able to ?nd it in our heart to commit the logical sin that lies concealed in wrath and punishment … I am more optimistic. We can hope to reach such agreement, I believe, in fewer than a thousand years.

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We can now turn from morality to reasons. Nietzsche refers to ‘the Socratic equation of reason, virtue, and happiness’. He means, presumably, not that reason = virtue = happiness, but something like: If we respond to reason, by doing what we have most reason to do, we shall achieve both virtue and happiness. Sidgwick quali?es this equation, since he believes that, without God and a future life, happiness and virtue do not always coincide. In such cases, Sidgwick believes, reason gives us no guidance. Nietzsche rejects the Socratic equation in a more sweeping way, calling it ‘the most bizarre of all equations’. The acceptance of this equation, Nietzsche writes, resulted in the creation of a degenerating type of man?the good man, the happy man, the wise man. Socrates is a moment of the deepest perversity in the history of men. Nietzsche seems here to disagree deeply with nearly everyone. We nearly all believe that it would not be degenerate, or bad, to be good, happy, and wise. As before, however, Nietzsche makes con?icting claims. He earlier wrote: Socrates had the wisdom full of roguishness that constitutes the ?nest state of the human soul … I admire the courage and wisdom of Socrates in everything he did, said, and did not say. When Nietzsche later discusses ‘whether instinct has more value than reasoning’, he writes that Socrates ‘naively placed himself on the side of reason’. On this rationalist view, one must imitate Socrates and counter the dark appetites with a permanent daylight?the daylight of reason … One must

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be clever, clear, bright at any price: any concession to the instincts, to the unconscious, leads downward … Nietzsche comments: all this too was a mere disease … To have to ?ght the instincts, that is the formula of decadence: as long as life is ascending, happiness equals instinct … All that is good is instinct?and hence easy, necessary, free. But Nietzsche earlier wrote that, if we merely follow instinct or tradition, we thereby ?ee into the dark precisely when reason ought to be taking as clear and cold a view as possible! A good philosopher is ‘reason-thirsty’, thinks with the rigour of a scientist, and wants to live in ‘clear’, ‘bright, transparent, electric air’, with sunlight around him. Discussing ‘religion-founders’, Nietzsche objects that they do not ask ‘Was my reason bright enough?’ We should prepare the earth, Nietzsche writes, for the production of the greatest and most joyful fruitfulness?a task for reason on behalf of reason! He even writes The only happiness lies in reason: all the rest of the world is dismal. When he made these earlier, better claims, Nietzsche could have agreed that, we should not follow reason at any price. We can have reasons to make some concessions to our instincts. But reason should govern our dark appetites, and may tell us to investigate the unconscious sources of these appetites, as Nietzsche’s admirer Freud rationally tried to do. Though Nietzsche makes several claims that contradict what most of us believe, Nietzsche himself contradicts these claims. When he disagrees with himself, he does not clearly disagree with us.

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Nietzsche and Sidgwick were both greatly disturbed by their loss of belief in God. Nietzsche remained more religious. The most fundamental questions, Nietzsche assumed, were not about what we ought to do, or what is good or bad, but about why we exist, and whether the answer can give meaning to our lives.

125 The Meaning of Life In asking what is good or evil, Nietzsche writes, we are asking why mankind is here, its goal, its destiny. That means wanting to know that mankind has a goal, or destiny. If we were created by God for some purpose, Nietzsche assumes, the meaning of our life would be given by the goal that God gave to us. But we are now losing our belief in God, and in what Nietzsche calls ‘a moral world order’. This raises ‘a terrifying question: Has existence any meaning at all?’ We no longer know what this tremendous process was actually for … A new What for??that is what mankind needs. We shall otherwise ‘tip over into nihilism’, believing that nothing matters. Nietzsche struggled to ?nd ‘a new What for?’ He writes: One interpretation has perished, but because it was regarded as the interpretation, there now seems to be no meaning at all in existence, everything seems to be in vain. There are, he suggests, other possibilities. If we were created by Life, or Nature, to achieve some purpose, that would give a meaning to our lives. Life’s purpose in creating us might also give a meaning to our suffering. Nietzsche then claims that consciousness is just a tool … our becoming conscious is only one more means in Life’s unfolding and the expansion of its power.

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Since Life gave us consciousness as a means, Nietzsche argues, we have ‘no right’ to regard any kind of desirable or undesirable consciousness as having value or disvalue as an end. In Nietzsche’s words: A kind of means has been misunderstood as an end: conversely, life and the enhancement of its power have been demoted to a means … agreeable or disagreeable feelings are just a means! If we condemn Life because our lives involve suffering, we are assuming that this ‘disagreeable means’ is more important than the end. We are thinking: How can it be a good end that makes use of such a means! Such reasoning, Nietzsche objects, mistakenly presupposes that Life or Nature’s end or purpose must exclude the use of pain and suffering as a means. We ought instead to look for an end to whose achievement our pain and suffering would be a necessary means. We would then understand that our pain and suffering are not bad. In these and similar passages, Nietzsche makes two mistakes. First, we should not assume that either Life or Nature has any end or purpose. Second, even if Life or Nature did have some end or aim, this fact would not imply that we should also have this aim. Perhaps we ought to have some aim if this aim were given to us by a good God. But Nietzsche recognizes what he calls ‘Nature’s magni?cent indifference to good or evil’. Nietzsche also suggests that Life is, fundamentally, the Will to Power, and that this fact both gives us our aim, and determines what has value. In his words: What is the objective yard-stick of value? Only the quantum of enhanced and organized power. Nietzsche sometimes claims that our aim must be given by the Will to Power. Since we are a part of Life, or Nature, we must have Life’s aims, and do what the Will to Power commands. Nietzsche even claims that we must do what this Will commands ‘because we are this commandment’. Nietzsche concludes:

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35 Nietzsche There is nothing to life that has value except the degree of power … The animal functions are a million times more important than all beautiful states and heights of consciousness … What has been called ‘body’ and ‘?esh’ is unutterably more important: the remainder is just a minor accessory.

Kant memorably wrote that two things ?lled his mind with everincreasing reverence and awe: the starry heavens and the moral law. Nietzsche replies, ‘Digestion is more venerable’. As before, we should reject these claims. There is no such Will to Power whose commandments we are forced to obey, or ought to obey. Nor should we regard our bodies as, in themselves, unutterably more important than our conscious minds. Compared with our most valuable conscious states and activities, our animal functions, such as digestion or excretion, do not matter a million times more. Darwin’s champion Huxley saw things more clearly here. The cosmic process of natural selection is wholly amoral, and causes great suffering. Given this fact, Huxley writes: Let us understand, once for all, that the ethical progress of society depends, not on imitating the cosmic process … but in combating it. Nietzsche sometimes saw that we cannot appeal to any aim or purpose had by Life or Nature. As he remarks: This is still the old religious way of thinking and wishing, a kind of longing to believe that in some way or other the world does, after all, resemble the beloved old … creative God. What these ideas have in common is that the process aims to achieve something?and now it is realized that this process aims for nothing, and achieves nothing … the world has no goal and no ?nal state … we have sought in everything a ‘meaning’ that it doesn’t contain.

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In a note to himself, Nietzsche asks whether we ourselves could give the cosmic process meaning. In his words: Question: once morality becomes impossible, does the pantheistic af?rmative stance towards all things become impossible as well? After all, fundamentally it’s only the moral God that has been overcome. Does it make sense to conceive of a God ‘beyond good and evil’? Would a pantheism in this sense be possible? Can we remove the idea of a goal from the process and then af?rm the process in spite of this? In some passages, as we have seen, Nietzsche answers Yes. By welcoming or af?rming the cosmic process, Nietzsche suggests, we can make this process good. In his words: To redeem the past and to transform every ‘It was’ into an ‘I wanted it thus’?that alone I would call redemption. But this claim expresses an incoherent fantasy. We cannot now bring it about that we did want every past event to happen, nor could such desires make everything good. In other passages, Nietzsche returns to the aim of revaluing all values. We need, he claims, new values. But Nietzsche says little about these values. In his last published attempt to revalue values, The Anti-Christ, Nietzsche merely returns to attacking Christian values. Nietzsche hopes for ‘a new nobility’, whose ‘formula for happiness’ would be ‘a Yes, a No, a straight line, a goal’. That is not a helpful formula. Nietzsche also writes: We need an af?rming race which grants itself every great luxury?strong enough not to need the tyranny of the virtue-imperative, rich enough not to need thrift and pedantry, beyond good and evil; a hot-house for strange and exquisite plants. That is not an inspiring ideal.

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Nietzsche’s problem is, in part, that he does not have the reason-implying concepts of what is in itself non-morally good or bad. In this respect he is too in?uenced by Kant. On Kant’s view, we do not have non-moral reasons to promote our own well-being. The principle of prudence is a merely hypothetical imperative, which applies to us only if, and because, we want to be happy. Normativity takes two main forms: the categorical imperatives of morality, and the hypothetical imperatives of instrumental, desire-based or aim-based rationality. Since Nietzsche starts with similar assumptions, but rejects morality, he is left with nothing but instrumental rationality. The rejection of morality, Nietzsche assumes, undermines all values. In his words: He who unmasks morality has thereby unmasked the valuelessness of all values which are or have been believed in. On this view, nothing is in itself good or bad. All value must derive from us. Nietzsche writes: Whatever has value in our world does not have value in itself, according to its nature?nature is always valueless?but has rather been given value, and we were the givers. He also writes: Knowledge and wisdom have no value as such; nor does goodness: one must always ?rst have a goal that confers value or disvalue on these qualities. Moral philosophers, Nietzsche claims, have two tasks. Lesser philosophers should describe people’s values, and assess their effects. Another, much smaller group have a much greater task, since they must create new values. Nietzsche writes: the real philosophers command and legislate, they say: This is how it shall be! It is they who determine the Where to and the What for of man.

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We cannot, however, make things good by commanding or willing that they be good. Though we can sometimes change people’s evaluative beliefs, that is not a way of creating new values. Nor can we make anything matter. When something matters to us, in the sense that we care about this thing, that is a merely psychological fact. Something matters only when, and in the sense that, we have object-given reasons to care about this thing. In some passages, Nietzsche seems to see that we cannot create values. He writes: Looked at more subtly, ‘That is wrong’ really means only, ‘I feel nothing of myself in it’, ‘I don’t care about it’ … When we evaluate, Nietzsche suggests, we are merely expressing our desires or preferences. ‘Every kind of action’, Nietzsche writes, ‘is identical in value.’ If that were true, there would be no point in trying to decide what to do. He also writes: A man as he ought to be, that sounds as preposterous to us as ‘A tree as it ought to be’. The world has equal value at every moment … in other words it has no value. As a result, everything seems to be in vain … Mistrust of our previous valuations intensi?es until it arrives at the question ‘Are not all ‘‘values’’ just decoys that prolong the comedy without getting any closer to a denouement?’ Continuing with an ‘in vain’, without aim and purpose, is the most paralyzing thought, especially when one realizes that one is being fooled. We believe we are important, but that is only how we feel: if we could communicate with the mosquito, we would learn that it ?oats through the air with the self-same importance, feeling within itself the ?ying center of the world.

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Nietzsche concludes: One should at last put human values nicely back in the corner where alone they have any right to be: as personal little values. Many species of animal have already disappeared: if man disappeared as well, nothing would be lacking in the world. One must be enough of a philosopher to admire even this nothingness. In his early essay ‘A Free Man’s Worship’, Russell claims that, though we were not created for any purpose, we can truly judge that some parts of the world are bad, and others good, and we should try to make the lives of conscious beings go better. Russell’s essay, Williams writes, involves the kind of muddle that is called sentimentality. Nietzsche by contrast got it right when he said that once upon a time there was a star in a corner of the universe, and a planet circling that star, and on it some clever creatures who invented knowledge; and then they died, and the star went out, and it was as though nothing had happened. Nietzsche got things right, Williams assumes, because Nietzsche saw that nothing is in itself good or bad. Nothing matters. Nietzsche’s struggle to avoid Nihilism failed. I shall now summarize some of these claims. Nietzsche ?rst assumed that, to know what is good or evil, we must know why humanity exists, since that would tell us what to do, and would also give our lives meaning. In Nietzsche’s words: Just this I seek, some reason for it all. When Nietzsche concluded that we were not created for some purpose by either God or Nature, he feared that our lives are meaningless, and have no value. He therefore struggled to ?nd values which could give our lives meaning. Nietzsche’s normative concepts made this aim harder to achieve. Nietzsche’s conception of normativity we can call imperatival, or command-implying. He seldom if ever uses the concept of what we

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ought morally to do. Nietzsche assumes that morality consists of commands. And he believes that, since God does not exist, there is no commander whose authority is high enough for us to have reasons to obey. Nor did Nietzsche have the concept of what is intrinsically good or bad, in reason-implying senses. Nietzsche assumed that new non-moral values could be created by valuings, which he took to involve commands. In a Godless world, we need new philosophers to create values, by willing ‘Thus shall it be!’ Since Nietzsche’s normative concepts were command-implying, rather than reason-implying, it is not surprising that his attempt to ?nd values failed. In response to the Argument from Disagreement, I have claimed that, in ideal conditions, we would nearly all have suf?ciently similar normative beliefs. I have mainly discussed beliefs that involve the concept ought morally, and the reason-implying concepts good and bad. Since Nietzsche seldom if ever uses these concepts, he seldom disagrees directly with these beliefs. I have also asked whether, if Nietzsche had used these concepts, his normative beliefs would have been, in ideal conditions, suf?ciently like ours. We have, I believe, several reasons to think that the answer would have been Yes. Though Nietzsche makes some normative claims that most of us would strongly reject, some of these claims are not wholly sane, and others depend on ignorance or false beliefs about the relevant non-normative facts. And Nietzsche often disagrees with himself, making other con?icting claims that we would accept. Our disagreements with him are less clear and deep than they seem. In one of his brilliant early books, Nietzsche writes: Of two very exalted things?measure and moderation?it is best never to speak. A few people know their signi?cance and power … they revere in them something divine … the rest hardly listen when they are spoken of, and confuse them with boredom and mediocrity. A good thinker, he also writes, knows that the talent for having ideas … must be rigorously curbed by the spirit of science. Not that which glitters, shines,

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35 Nietzsche excites, but often insigni?cant-seeming truth is the fruit he wishes to shake down from the tree of knowledge.

Nietzsche changed. In his last few books, the sun of Nietzsche’s life began its accelerating journey downward into night. These books gave Nietzsche most of his astonishing posthumous in?uence and fame. But they are also what Mann calls ‘snow-covered peaks of grotesque error’, some of whose appalling claims show the disintegration of his noble mind. Of the false ideas that merely glitter, shine and excite, one example is Schopenhauer’s idea that the whole of reality, is, fundamentally, the Will to Existence. Nietzsche called this idea ‘a mythology’ and ‘a disaster for science’, which results from ‘the philosopher’s rage for generalization’, and promotes ‘all kinds of mystical mischief’. But Nietzsche himself later wrote: Do you know what ‘the world’ is to me? … this, my Dionysian world of the eternally self-creating, the eternally self-destroying, this mystery world of the twofold voluptuous delight, my ‘beyond good and evil’ … This world is the Will to Power?and nothing else! And you yourselves are also this Will to Power?and nothing else! Similar remarks apply. Nietzsche earlier predicted how a great thinker might change in such a way. When this person comes to believe himself to be a genius, he ceases to criticize himself. He considers himself ‘permitted to promulgate decrees rather than demonstrate’. This thinker drifts imperceptibly into so wretchedly close an approximation to the excesses of priests and poets that one hardly dares to remember his wise and rigorous youth, the strict intellectual morality he then practised, and his … dread of inspirations and fantasies. When in earlier years he compared himself with other, older thinkers, it was so as to seriously measure his weakness against their strength and to

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grow colder and freer towards himself: now he does it only so as to intoxicate himself in his own delusions. Nietzsche here describes his own earlier years. This older thinker, Nietzsche adds, has come to a halt … he is past the peak of his powers and is very weary, very close to the setting of his sun. Given his father’s early death, Nietzsche often feared that he did not have long to live, and he sometimes feared the madness into which he fell. Nietzsche also writes: A thoughtful man, if he is sure of his reason, can pro?t by going among fantasists for a decade and within this torrid zone surrendering himself to a modest degree of folly. Nietzsche’s journey did not go well, since he lost his reason before he could return from the torrid zone and free himself from his fantasies and follies. Wondering how he will die, Nietzsche writes: will I have my storm in which I perish? … Or will I go out like a light that no wind blows out, but that grew tired and sated with itself?a burned-out light? Or will I blow myself out lest I burn out? Nietzsche describes how a thinker’s life could best end. He would reach a high, wide mountain plateau wafted by a fresh breeze, above it a clear cloudless sky which gazes down all day and into the night with the same unchanging gentleness: the time of harvest and the heartiest cheerfulness?it is the autumn of life. Addressing himself, he writes: the same life that has its summit in old age also has its summit in wisdom, in that gentle sunshine of a continual

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35 Nietzsche spiritual joyousness; both of them, old age and wisdom, you will encounter on the same mountain ridge of life … Then it is time, and no cause for anger, that the mists of death should approach. Towards the light?your last motion; joyful shout of knowledge?your last sound.

He should have had such an end.

36 What Matters Most 126 Has It All Been Worth It? The badness of suffering casts doubt on the goodness of the world. Despite making some brutal claims, Williams writes, Nietzsche had a hyper-sensitivity to suffering. It was linked to a total refusal to forget, not only the existence of suffering, but the fact that suffering was necessary to everything that he and anyone else valued. ‘All good things come from bad things’ is one of his fundamental tenets. On this view, since the world’s achievements and glories?art, selfunderstanding, nobility of character?cannot in common honesty be separated from the knowledge of the horrors that have been involved in bringing these things about … there is a question that cannot, Nietzsche supposed, simply be ignored: whether it has all been worth it. In asking whether human history has been worth it, we are asking whether the horrors and the suffering have been outweighed, so that human history has been, on the whole, good. Pessimists answer No. On their view, human existence is on the whole bad, or worse than nothing. Buddha’s first noble truth is that life is mostly suffering, and Silenus said ‘It is best not to be born’.

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Nietzsche sometimes makes such claims. If someone had full knowledge of the conscious lives of others, Nietzsche writes, he would ‘despair of the value of life’ and ‘collapse with a curse on existence’. Williams similarly writes that, if we had such knowledge, this would be an ultimate horror, an unendurable nightmare … if for a moment we got anything like an adequate idea of it … and we really guided our actions by it, then surely we would annihilate the planet, if we could: and if other planets containing conscious creatures are similar to ours in the suffering they contain, we would annihilate them as well. Nietzsche later struggled to avoid this form of Pessimism. One of Nietzsche’s responses was his attempt to make the world good, by saying Yes to everything. In other passages, Nietzsche claims instead that we cannot intelligibly ask whether it has all been worth it. In his words: Judgments of value concerning life, for it or against it, can never be true … the value of life cannot be estimated. Not by the living, for they are an interested party … not by the dead, for a different reason. Nietzsche here assumes that, if we try to estimate the value of our lives, our judgment would be distorted by self-interest. That may sometimes happen. When Nietzsche tried to believe that suffering is good, so that his own suffering would be easier to bear, Nietzsche’s judgment was distorted by self-interest. But when we believe that suffering is bad, our judgment is not distorted in this way. The world, Nietzsche also writes, has no value at all, for there is nothing against which it could be measured and in relation to which the word ‘value’ would have meaning. The total value of the world is unevaluable, consequently philosophical pessimism is among the comical things.

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This argument assumes that, when we ask whether something’s existence is good, we can only compare this thing’s existence with the existence of something else, and ask which is better. That is not so. We can ask whether something’s existence is in itself good. Such judgments are comparative only in the minimal sense that we compare this thing’s existence with its non-existence, which we can regard as nothing and as having no value. Something’s existence is in itself good if it is better than nothing, and bad if it is worse than nothing. We can also reach such judgments with a series of comparisons. If someone dies a slow and painful death, it would have been both better for this person, and impersonally better, if this person’s life had ended earlier. The last part of this person’s life was worse than nothing, or in itself bad. We can reach similar conclusions about the whole of someone’s life. If someone’s life contains much prolonged suffering, and nothing or little that is good, it would have been both better for this person, and impersonally better, if this person’s life had ended just after it started. Things may be in one way different if we suppose instead that this person’s life had never even started. Perhaps we could not claim that this alternative would have been better for this person. But when we ask which alternative would have been impersonally better, there is little difference between these two comparisons. Since it would have been better if this person’s life had stopped just after it started, it would also have been better if this person’s life had never started. In other words, it would have been impersonally better if this wretched person had never existed. And since such claims make sense when applied to one person, they also make sense when applied to all conscious beings, or to the whole of reality. In considering such wider claims, we can ?rst ask Q1: Has the past been in itself worth it? To focus on this question, we can imagine learning that some massive asteroid will soon hit the Earth, thereby ending human history. We can then ask whether, compared with what has actually happened, it would have been either better or worse if human history had never occurred, because no human beings had ever existed.

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Of those who have asked Q1, some Optimists believe the answer to be clearly Yes, since these people are con?dent that human history up to now has been in itself good, or better than nothing. Some Pessimists believe the answer to be clearly No. To some of us, including me, the answer seems less clear. According to Hedonistic Utilitarians, the past has been in itself good if there has been, in the lives of all conscious beings, a positive total sum of happiness minus suffering. To explain such claims, we must explain the sense in which some amount of happiness might be greater than some amount of suffering. This sense of ‘greater’ is normative, in a way that is often overlooked. We can ?rst consider brief pleasures and pains. Some pleasure would be in itself greater than some pain if the nature of these two experiences would on balance give us reasons to choose to have both rather than neither. It might, for example, be worth enduring intense cold on some mountain’s summit for the sake of seeing a sublime view. When some pleasure is in this sense greater than some pain, these experiences would together give us a positive sum of pleasure minus pain, or as we can say more brie?y a net sum of pleasure. Such claims need more explanation, and should be quali?ed in various ways. The relative value of such experiences would be very imprecise. Despite these facts, we can often truly believe that some pleasure is greater than some pain. In some longer part of our life, or our life as a whole, we might similarly have a positive sum of happiness minus suffering. That would be true if it would be worth enduring this suffering for the sake of this happiness. We can next ask whether some group of people might together have some net sum of happiness. It may help to suppose that a single person could have a series of experiences that were just like all of the experiences in these different people’s lives, and we can ask whether this person would have suf?cient reasons to endure the suffering in this super-life for the sake of the happiness. If the answer is Yes, this sum of happiness would again be greater than this sum of suffering. This question is in one way misleading. If we imagine that a single person would have all the experiences in these many lives, we may be led to ignore the distinctions between these lives, or the separateness

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of persons. When we ask whether human history has been in itself worth it, or on the whole good, we should also consider questions about distributive justice. When someone suffers, this person’s suffering cannot be straightforwardly compensated by bene?ts to other people. If human history had involved a net sum of happiness which was equally distributed between different people, there would also have been a net sum of happiness within each person’s life, and this might have made human history in itself good. But, as we know, this distribution has been very unequal. There have been some people whose lives contained more suffering than happiness, and this fact may have made these people’s lives worse than nothing. Some Pessimists have been Utilitarians who believed that the sum of happiness has been clearly smaller than the sum of suffering. But other Pessimists appeal to claims about the world’s injustice. These people might believe that, though most people’s lives have been well worth living, and the sum of happiness has been greater than the sum of suffering, history has been on the whole bad, because there has been uncompensated suffering in lives that were worse than nothing. As Schopenhauer writes: that thousands had lived in happiness and joy would never do away with the anguish and death-agony of one individual. The suffering in these people’s lives, these Pessimists may believe, would be decisive. These Pessimists may not be Hedonists. They might believe that even if most people’s lives contained great non-hedonic goods, these goods could not outweigh the badness and injustice of some people’s uncompensated suffering. On this view, it would have been in itself better if no one had ever lived. Such views, I believe, are too extreme. To consider a simpler example, suppose there have been many wretched people whose lives were worse than nothing, but whose lives were not very bad, since they did not involve long periods of intense suffering. Suppose next that, for each one person who has lived such a life, there have been at least a hundred people whose lives were very well worth living. The answer to Q1 would then, I believe, be Yes, since the past would have been in itself worth it. The uncompensated suffering of the unfortunate minority would have been outweighed by the much greater

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happiness, and other non-hedonic goods, had by these many other people. We have other reasons to doubt these Pessimistic views. Though it might be true that past suffering has not been outweighed, such truths are very imprecise. We may also know too little about what has happened. Great suffering was necessary, Nietzsche claims, for all of the things that are good, and all the world’s great achievements and glories. That is an overstatement. The building of St Petersburg involved much suffering, and the building of the Pyramids may have involved much more. But such claims may not apply to the building of the Parthenon or Venice, and they clearly do not apply to much of the greatest music, art, or literature, such as that produced by Mozart, Monet, and Goethe, or, we can plausibly assume, Bach, Rembrandt, and Shakespeare. When I consider the parts of the past of which I have some knowledge, I am inclined to believe that, in Utilitarian hedonistic terms, the past has been worth it, since the sum of happiness has been greater than the sum of suffering. But I also believe that, when we ask how well history has gone, these hedonic sums are not all that matter, and that the badness of uncompensated suffering cannot be easily outweighed. I am weakly inclined to believe that the past has been in itself worth it. But this may be wishful thinking. Human history, however, is not yet over.

127 The Future We can ask Q2: Will the future be worth it? Q3: Will human history have been, on the whole, worth it? Even if the past has been in itself bad, the future may be in itself good, and this goodness might outweigh the badness of the past. Human history would then be, on the whole, worth it. We could also truly claim that the past was worth it, not in itself, but as a necessary part of a greater good. On this view, the past would be like an unhappy childhood in some life that is on the whole worth living.

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It would be worth enduring this childhood for the sake of the rest of this life. No such claim, we can note, applies to the future. If what happens later will be in itself bad, this bad future could not be worth it as a part of the whole of history, since this bad future would not be a necessary part of this larger whole. It would be better if history ended now. In the same way, unlike a wretched childhood, a wretched old age could not be worth it as a necessary part of a life that is on the whole worth living. In another way, however, the analogy with a single life fails. It might be worth enduring a wretched childhood for the sake of the rest of a good life, since our past suffering might be fully compensated by this good future. The people who suffered in the past, however, would not be compensated by what is good in the lives of future people. We might therefore believe that, even if the future will be in itself very good, this fact could not outweigh the badness of the past. Though we know little about most of the past, we know even less about the future. If we are doubtful whether the past was in itself good, we may ?nd it hard to predict or even guess whether the future is likely to make history, on the whole, worth it. When we ask whether the existence of human beings will have been, on the whole, good, we may not believe that either answer is more likely to be true. Given what some animals endure, we may have similar doubts about whether it is good that there are other conscious beings on this planet. We don’t yet know whether there is conscious life elsewhere. We may thus have no idea whether the existence of the Universe is on the whole good. This ignorance, however, would have little practical importance. Our practical question is Q4: What ought we to do? To answer this question, we don’t need to know either whether the past was worth it, or whether the whole of history will have been worth it. Suppose that the past was in itself so bad that, even if the future will be very good, human history will not have been worth it. If that were true, it would have been better if human beings had never existed. But

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that truth would have no practical implications. If the future would be worth it, we should not give up now. As before, the point is clearer within one life. If my past life has been worse than nothing, my future may not be good enough to make my life as a whole worth living, and it would then be true that it would have been better if I had never existed. But it might be better if I continue to exist from now on. Even if my past has not been worth it, and my life as a whole will not have been worth it, my future may be worth it. If we were trying to decide whether the existence of conscious beings will have been on the whole good, we would need to compare the past and the future. For practical purposes, however, we can ignore the horrors of the past. It is enough to ask some questions about the future. It might be objected that we should not ignore these past horrors, by thinking only about how we might help to give humanity a good future. That may seem like building a dance hall or comedy theatre on the site of Auschwitz, or of some other massacre. But of the people who have suffered in lives that were worse than nothing, many suffered in attempts to help to give humanity a good future. These people would have wanted us to try to achieve their aims; and, if we succeed, some of their suffering may not have been in vain. In deciding what we ought to do, we don’t need to know whether the future will be worth it, or is likely to be worth it. It may be enough to ask Q5: Might the future be worth it? It may even be enough to ask Q6: Will the near future be in itself worth it? This second question is easier to answer. If the answer is Yes, we need not ask whether the rest of the future might be, or is likely to be, worth it. We could leave those questions to our descendants. Suppose instead that the near future will not be in itself worth it, but will be worse than nothing. That might become true, for example, if we in?ict great damage on the biosphere, by global overheating or in some other way, so that, for this and the next few generations, life would be bleak. We would then need to ask whether the rest of the future might

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be worth it. If the answer was No, it would be best if human history ended soon. We would not need, in Williams’s phrase, to annihilate the planet. It would be enough if none of us had children. It is clear, however, that the further future might be worth it. Partly for this reason, even if the near future would be very bleak, we should not end human history. It might be claimed that, if our children’s lives would be likely to be worse than nothing, we ought not to impose such burdens on them. But that is not, I believe, true. Even if our children’s lives would be worse than nothing, they might decide to bear such burdens, as many people have earlier done, for the sake of helping to give humanity a good future. We could justi?ably have children, letting them decide whether to act in this noble way, rather than making this decision on their behalf, by never having children. If I believed only that the further future might be worth it, I might not make these claims. But we can also ask Q7: Might the future be, on the whole, very good? When Pessimism was most discussed, in the late nineteenth century, some Pessimists claimed that hardly anyone could have a life that was worth living. Some of these people assumed that their personal experience gave them suf?cient evidence for this claim. That is not so. The evidence more plausibly supports the view that, though many people have such wretched lives, many others have lives that are well worth living. Schopenhauer gives some arguments for his Pessimistic view, but these arguments are weak. Just as the privation theory claims that evil is merely the absence of good, Schopenhauer claims that most pleasure and happiness is merely the absence of pain. That is not true. And Schopenhauer makes two curiously inconsistent claims about the wretchedness of human existence. We can object, he claims, both that our lives are ?lled with suffering which makes them worse than nothing, and that time passes so swiftly that we shall soon be dead. These are like Woody Allen’s two complaints about his hotel: ‘The food is terrible, and they serve such small portions!’ Many Pessimists assumed that the nature of human life is ?xed, so that what is true now will always be true. For the earliest Pessimists, such

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as Buddha and some ancient Greeks, that may have been a reasonable assumption. By the mid nineteenth Century, however, it should have been clear that human existence could be radically transformed. Though the world started to become uglier, anaesthetics were discovered. We shall soon be able to prevent most human suffering. We live during the hinge of history. Given the scienti?c and technological discoveries of the last two centuries, the world has never changed as fast. We shall soon have even greater powers to transform, not only our surroundings, but ourselves and our successors. If we act wisely in the next few centuries, humanity will survive its most dangerous and decisive period. Our descendants could, if necessary, go elsewhere, spreading through this galaxy. Compared with the possible future, the past is very short. I remember hearing Bertrand Russell describe his memories of his grandfather, who was born in 1792. Known history is a mere six or eight thousand years. The Earth may remain inhabitable for at least a billion years. What has occurred so far is at most a tiny fraction of possible human history. Nor should we restrict this question to the lives of future human beings. Just as we had ancestors who were not human, we may have descendants who will not be human. We can call such people supra-human. Our descendants might, I believe, make the further future very good. But that good future may also depend in part on us. If our sel?sh recklessness ends human history, we would be acting very wrongly. Such acts might be worse for no one; but, as I have argued, that fact could not justify these acts. Williams doubts whether it has all been worth it. He contrasts two attitudes to ‘Western ethical experience’. According to progressivists, who include Plato, Aristotle, Kant, and Hegel: the universe or history or the structure of human reason can, when properly understood, yield a pattern that makes sense of human life and human aspiration … somehow or other, in this life or the next, morally if not materially, as individuals or as an historical collective, we shall be safe; or, if not safe, at least reassured that at some level of the world’s constitution

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there is something to be discovered that makes ultimate sense of our concerns. Sophocles and Thucydides, by contrast, are alike in leaving us with no such sense. Each of them represents human beings as dealing sensibly, foolishly, sometimes catastrophically, sometimes nobly, with a world that is only partially intelligible … [and not] well adjusted to ethical aspirations. These more pessimistic Greeks, Williams believes, were right. But I believe that, if we recognize certain truths about reasons, we can make suf?cient sense of our concerns. There is one concern of which we can easily make sense. We can try to prevent or relieve suffering, and that is enough to give our lives some meaning. As Nagel writes: There is a great deal of misery in the world, and many of us could easily spend our lives trying to eradicate it … one advantage of living in a world as bad as this one is that it offers the opportunity for many activities whose importance can’t be questioned. Here is one way in which you could do something to relieve suffering. You could form a group of friends who commit themselves to give to some aid agency, like Oxfam, some proportion of their future income. Once each year, this group’s newsletter would report whether everyone was still making contributions. It would be hard to admit to the others that you had stopped contributing, so by forming or joining such a group you would make it easier to live up to your ideals. You and the others would need to decide how much of your income you commit yourselves to give. If you aim too high, this plan would be more likely to fail. I suggest one tenth?or, more cautiously, one twentieth. Nagel also writes: But how could the main point of human life be the elimination of evil? Misery, deprivation, and injustice

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36 What Matters Most prevent people from pursuing the positive goods which life is assumed to make possible. If all such goods were pointless and the only thing that really mattered was the elimination of misery, that really would be absurd. The same could be said of the idea that helping others is the only thing that really gives meaning to life. If no one’s life has any meaning in itself, how can it acquire meaning through devotion to the meaningless lives of others?

These claims are, I believe, too strong. If all that really mattered was preventing suffering, our lives could all have meaning, since we could all devote our lives to this aim. Nagel’s claim should instead be that, if there were no great positive goods which could outweigh the suffering in people’s lives, it would not be worth continuing human history. There would be another, more effective way to prevent suffering. We should all have no children. For it to be worth our staying alive and having children, we and they must be able to have lives that are not only meaningful, but good. That is clearly possible. Life can be wonderful as well as terrible, and we shall increasingly have the power to make life good. Since human history may be only just beginning, we can expect that future humans, or supra-humans, may achieve some great goods that we cannot now even imagine. In Nietzsche’s words, there has never been such a new dawn and clear horizon, and such an open sea. In these chapters I have defended the view that (A) there are some irreducibly normative reason-involving truths. Most recent writers reject such views, appealing to metaphysical and epistemic objections, or to normative disagreements. I have suggested how we might answer these objections. Such normative truths, I have claimed, are not about entities or properties that exist in some ontological sense. Natural selection could explain how, without being causally affected by any such normative properties, we are able to understand and recognize such truths. And we can reasonably believe that, in ideal

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conditions, we would nearly all have suf?ciently similar normative beliefs. I have also claimed that (B) we could not have reasons to believe that there are no irreducibly normative truths, since the fact that we had such reasons would itself have to be one such truth. This claim does not imply that there are such truths. But we can add that © if we ought to have some belief about this question, this is what we ought to believe. If we believe that there are some irreducibly normative truths, we might be believing what we ought to believe. If there are such truths, one of these truths would be that we ought to believe that there are such truths. If instead we believe that there are no such truths, we could not be believing what we ought to believe. If there were no such truths, there would be nothing that we ought to believe. Since (D) it might be true that we ought to believe that there are some irreducibly normative truths, and (E) it could not be true that we ought not to have this belief, we can conclude that (F) we have unopposed reasons or apparent reasons to believe that there are such truths, so that (G) this is what, without claiming certainty, we ought rationally to believe. If there were no such normative truths, nothing would matter, and we would have no reasons to try to decide how to live. Such decisions

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would be arbitrary. We would not be the animals that can understand and respond to reasons. In a world without reasons, we would act only on our instincts and desires, living as other animals live. The Universe would not contain rational beings. Some things, I have claimed, matter, and there are better and worse ways to live. After many thousands of years of responding to reasons in ways that helped them to survive and reproduce, human beings can now respond to other reasons. We are a part of the Universe that is starting to understand itself. And we can partly understand, not only what is in fact true, but also what ought to be true, and what we might be able to make true. What now matters most is that we avoid ending human history. If there are no rational beings elsewhere, it may depend on us and our successors whether it will all be worth it, because the existence of the Universe will have been on the whole good.

APPENDICES

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APPENDIX D

Why Anything? Why This? Why does the Universe exist? There are two questions here. First, why is there a Universe at all? It might have been true that nothing ever existed: no living beings, no stars, no atoms, not even space or time. When we think about this possibility, it can seem astonishing that anything exists. Second, why does this Universe exist? Things might have been, in countless ways, different. So why is the Universe as it is? These questions, some people believe, may have causal answers. Suppose ?rst that the Universe has always existed. Some believe that, if all events were caused by earlier events, everything would be explained. That, however, is not so. Even an in?nite series of events cannot explain itself. We could ask why this series occurred, rather than some other series, or no series. Of the supporters of the Steady State Theory, some welcomed what they took to be this theory’s atheistic implications. They assumed that, if the Universe had no beginning, there would be nothing for a Creator to explain. But there would still be an eternal Universe to explain. Suppose next that the Universe is not eternal, since nothing preceded the Big Bang. That ?rst event, some physicists suggest, may have obeyed the laws of quantum mechanics, by being a random ?uctuation in a vacuum. This would causally explain, they say, how the Universe came into existence out of nothing. But what physicists call a vacuum isn’t really nothing. We can ask why it exists, and has the potentialities it does. In Hawking’s phrase, ‘What breathes ?re into the equations?’ Similar remarks apply to all suggestions of these kinds. There could not be a causal explanation of why the Universe exists, why there are any laws of nature, or why these laws are as they are. Nor would it make a difference if there is a God, who caused the rest of the Universe to exist. There could not be a causal explanation of why God exists.

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Many people have assumed that, since these questions cannot have causal answers, they cannot have any answers. Some therefore dismiss these questions, taking them to be not worth considering. Others conclude that they do not make sense, assuming that, as Wittgenstein wrote, ‘doubt can exist only where there is a question; and a question only where there is an answer’. These assumptions are, I believe, mistaken. Even if these questions could not have answers, they would still make sense, and they would still be worth considering. Such thoughts take us into the aesthetic category of the sublime, which applies to the highest mountains, raging oceans, the night sky, the interiors of some cathedrals, and other things that are superhuman, awesome, limitless. No question is more sublime than why there is a Universe: why there is anything rather than nothing. Nor should we assume that answers to this question must be causal. And, even if reality cannot be fully explained, we may still make progress, since what is inexplicable may become less baf?ing than it now seems.

1 One apparent fact about reality has recently been much discussed. Many physicists believe that, for life to be possible, various features of the Universe must be almost precisely as they are. As one example of such a feature, we can take the initial conditions in the Big Bang. If these conditions had been more than very slightly different, these physicists claim, the Universe would not have had the complexity that allows living beings to exist. Why were these conditions so precisely right? Some say: ‘If they had not been right, we couldn’t even ask this question.’ But that is no answer. It could be baf?ing how we survived some crash even though, if we hadn’t, we could not be baf?ed. Others say: ‘There had to be some initial conditions, and the conditions that make life possible were as likely as any others. So there is nothing to be explained.’ To see what is wrong with this reply, we must distinguish two kinds of case. Suppose ?rst that, when some radio telescope is aimed at most points in space, it records a random sequence of incoming waves. There might be nothing here that needed to be explained. Suppose next that, when the telescope is aimed in

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one direction, it records a sequence of waves whose pulses match the number π , in binary notation, to the ?rst ten thousand digits. That particular number is, in one sense, just as likely as any other. But there would be something here that needed to be explained. Though each long number is unique, only a very few are, like π , mathematically special. What would need to be explained is why this sequence of waves exactly matched such a special number. Though this matching might be a coincidence, which had been randomly produced, that would be most unlikely. We could be almost certain that these waves had been produced by some kind of intelligence. On the view that we are now considering, since any sequence of waves is as likely as any other, there would be nothing to be explained. If we accepted this view, intelligent beings elsewhere in space would not be able to communicate with us, since we would ignore their messages. Nor could God reveal himself. Suppose that, with some optical telescope, we saw a distant pattern of stars which spelled out in Hebrew script the ?rst chapter of Genesis. On this view, this pattern of stars would not need to be explained. That is clearly false. Here is another analogy. Suppose ?rst that, of a thousand people facing death, only one can be rescued. If there is a lottery to pick this one survivor, and I win, I would be very lucky. But there might be nothing here that needed to be explained. Someone had to win, and why not me? Consider next another lottery. Unless my gaoler picks the longest of a thousand straws, I shall be shot. If my gaoler picks that longest straw, there would be something to be explained. It would not be enough to say, ‘This result was as likely as any other.’ In the ?rst lottery, nothing special happened: whatever the result, someone’s life would be saved. In this second lottery, the result was special, since, of the thousand possible results, only one would save a life. Why was this special result also what happened? Though this might be a coincidence, the chance of that is only one in a thousand. I could be almost certain that, like Dostoyevsky’s mock execution, this lottery was rigged. The Big Bang, it seems, was like this second lottery. For life to be possible, the initial conditions had to be selected with great accuracy. This appearance of fine-tuning, as some call it, also needs to be explained.

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It may be objected that, in regarding conditions as special if they allow for life, we unjusti?ably assume our own importance. But life is special, if only because of its complexity. Even a squirrel’s brain is more complicated than a lifeless galaxy. Nor is it only life that requires this ?ne-tuning. If the Big Bang’s initial conditions had not been almost precisely as they were, the Universe would have either almost instantly recollapsed, or expanded so fast, and with particles so thinly spread, that not even stars or heavy elements could have formed. That is enough to make these conditions very special. It may next be objected that these conditions cannot be claimed to be improbable, since such a claim requires a statistical basis, and there is only one Universe. If we were considering all conceivable Universes, it would indeed be implausible to make judgments of statistical probability. But our question is much narrower. We are asking what would have happened if, with the same laws of nature, the initial conditions had been different. That provides the basis for a statistical judgment. There is a range of values that these conditions might have had, and physicists can work out in what proportion of this range the resulting Universe could have contained stars, heavy elements, and life. This proportion, it is claimed, is extremely small. Of the range of possible initial conditions, fewer than one in a billion billion would have produced a Universe with the complexity that allows for life. If this claim is true, as I shall here assume, there is something that cries out to be explained. Why was one of this tiny set also the one that actually obtained? On one view, this was a mere coincidence. That is conceivable, since coincidences happen. But this view is hard to believe since, if it were true, the chance of this coincidence occurring would be below one in a billion billion. Others say: ‘The Big Bang was ?ne-tuned. In creating the Universe, God chose to make life possible.’ Atheists may reject this answer, thinking it improbable that God exists. But God’s existence is much less improbable than the view that would require so great a coincidence. So even atheists should admit that, of these two answers to our question, the answer that invokes God is more likely to be true.

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This reasoning revives one of the traditional arguments for belief in God. In its strongest form, this argument appealed to the many features of animals, such as eyes or wings, that seem to have been designed. Paley’s appeal to such features much impressed Darwin when he was young. Darwin later undermined this form of the argument, since natural selection can explain this appearance of design. But natural selection cannot explain the appearance of ?ne-tuning in the Big Bang. This argument’s appeal to probabilities can be challenged in a different way. In claiming it to be most improbable that this ?ne-tuning was a coincidence, the argument assumes that, of the possible initial conditions in the Big Bang, each was equally likely to obtain. That assumption may be mistaken. The conditions that allow for complexity and life may have been, compared with all the others, much more likely to obtain. Perhaps they were even certain to obtain. To answer this objection, we must broaden this argument’s conclusion. If these life-allowing conditions were either very likely or certain to obtain, then?as the argument claims?it would be no coincidence that the Universe allows for complexity and life. But this ?ne-tuning might have been the work, not of some existing being, but of some impersonal force, or fundamental law. That is what some theists believe God to be. A stronger challenge to this argument comes from a different way to explain the appearance of ?ne-tuning. Consider ?rst a similar question. For life to be possible on the Earth, many of the Earth’s features have to be close to being as they are. The Earth’s having such features, it might be claimed, is unlikely to be a coincidence, and should therefore be regarded as God’s work. But such an argument would be weak. The Universe, we can reasonably believe, contains very many planets, with varying conditions. We should expect that, on a few of these planets, conditions would be just right for life. Nor is it surprising that we live on one of these few. Things are different, we may assume, with the appearance of ?netuning in the Big Bang. While there are likely to be many other planets, there is only one Universe. But this difference may be less than it seems. Some physicists suggest that the observable Universe is only one out of

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many different worlds, which are all equally parts of reality. According to one such view, the other worlds are related to ours in a way that solves some of the mysteries of quantum physics. On the different and simpler view that is relevant here, the other worlds have the same laws of nature as our world, and they are produced by Big Bangs that are broadly similar, except in having different initial conditions. On this Many Worlds Hypothesis, there is no need for ?ne-tuning. If there were enough Big Bangs, we should expect that, in a few of these, conditions would be just right to allow for complexity and life; and it would be no surprise that our Big Bang was one of these few. To illustrate this point, we can revise my second lottery. Suppose my gaoler picks a straw, not once, but very many times. That would explain his managing, once, to pick the longest straw, without that’s being an extreme coincidence, or this lottery’s being rigged. On most versions of the Many Worlds Hypothesis, these many worlds are not, except through their origins, causally related. Some object that, since our world could not be causally affected by such other worlds, we can have no evidence for their existence, and can therefore have no reason to believe in them. But we do have such a reason, since their existence would explain an otherwise puzzling feature of our world: the appearance of ?ne-tuning. Of these two ways to explain this appearance, which is better? Compared with belief in God, the Many Worlds Hypothesis is more cautious, since its claim is merely that there is more of the kind of reality that we can observe around us. But God’s existence has been claimed to be intrinsically more probable. According to most theists, God is a being who is omniscient, omnipotent, and wholly good. The uncaused existence of such a being has been claimed to be simpler, and less arbitrary, than the uncaused existence of many highly complicated worlds. And simpler hypotheses, many scientists assume, are more likely to be true. If such a God exists, however, other features of our world become hard to explain. It may not be surprising that God chose to make life possible. But the laws of nature could have been different, so there are many possible worlds that would have contained life. It is hard to

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understand why, out of all these possibilities, God chose to create our world. What is most baf?ing is the problem of evil. There appears to be much suffering which any good person, knowing the truth, would have prevented if he could. If there is such suffering, there cannot be a God who is omnipotent, omniscient, and wholly good. To this problem, theists have proposed several solutions. Some suggest that God is not omnipotent, or not wholly good. Others suggest that undeserved suffering is not, as it seems, bad, or that God could not prevent such suffering without making the Universe, as a whole, less good. We can ignore these suggestions here, since we have larger questions to consider. I began by asking why things are as they are. Before returning to that question, we should ask how things are. There is much about our world that we have not discovered. And, just as there may be other worlds that are like ours, there may be worlds that are very different.

2 It will help to distinguish two kinds of possibilities. Cosmic possibilities cover everything that ever exists, and are the different ways that the whole of reality might be. Only one such possibility can be actual, or be the one that obtains. Local possibilities are the different ways that some part of reality, or local world, might be. If some local world exists, that leaves it open whether other worlds exist. One cosmic possibility is, roughly, that every possible local world exists. This we can call the All Worlds Hypothesis. Another possibility, which might have obtained, is that nothing ever exists. This we can call the Null Possibility. In each of the remaining possibilities, the number of local worlds that exist is between none and all. There are countless of these possibilities, since there are countless combinations of possible local worlds. Of these different cosmic possibilities, one must obtain, and only one can obtain. So we have two questions: Which obtains, and Why? These questions are connected. If some possibility would be easier to explain, that may give us more reason to believe that this possibility obtains. This is how, rather than believing in only one Big Bang, we

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have more reason to believe in many. Whether we believe in one or many, we have the question why any Big Bang has occurred. Though this question is hard, the occurrence of many Big Bangs is not more puzzling than the occurrence of only one. Most kinds of thing, or event, have many instances. We also have the question why, in the Big Bang that produced our world, the initial conditions allowed for complexity and life. If there has been only one Big Bang, this fact is also hard to explain, since it is most unlikely that these conditions merely happened to be right. If instead there have been many Big Bangs, this fact is easy to explain, since it is like the fact that, among countless planets, there are some whose conditions allow for life. Since belief in many Big Bangs leaves less that is unexplained, it is the better view. If some cosmic possibilities would be less puzzling than others, because their obtaining would leave less to be explained, is there some possibility whose obtaining would be in no way puzzling? Consider ?rst the Null Possibility, in which nothing ever exists. To imagine this possibility, it may help to suppose ?rst that all that ever existed was a single atom. We then imagine that even this atom never existed. Some have claimed that, if there had never been anything, there wouldn’t have been anything to be explained. But that is not so. When we imagine how things would have been if nothing had ever existed, what we should imagine away are such things as living beings, stars, and atoms. There would still have been various truths, such as the truth that there were no stars or atoms, or that 9 is divisible by 3. We can ask why these things would have been true. And such questions may have answers. Thus we can explain why, even if nothing had ever existed, 9 would have been divisible by 3. There is no conceivable alternative. And we can explain why there would have been no such things as immaterial matter, or spherical cubes. Such things are logically impossible. But why would nothing have existed? Why would there have been no stars or atoms, no philosophers or bluebell woods? We should not claim that, if nothing had ever existed, there would have been nothing to be explained. But we can claim something less. Of all the cosmic possibilities, the Null Possibility would have needed the least explanation. As Leibniz pointed out, it is much the simplest,

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and the least arbitrary. And it is the easiest to understand. It can seem mysterious, for example, how things could exist without their existence having some cause, but there cannot be a causal explanation of why the whole Universe, or God, exists. The Null Possibility raises no such problem. If nothing had ever existed, that state of affairs would not have needed to be caused. Reality, however, does not take its least puzzling form. In some way or other, a Universe has managed to exist. That is what can take our breath away. As Wittgenstein wrote, ‘not how the world is, is the mystical, but that it is’. Or, in the words of a thinker as unmystical as Jack Smart: ‘That anything should exist at all does seem to me a matter for the deepest awe.’ Consider next the All Worlds Hypothesis, which claims that every possible local world exists. Unlike the Null Possibility, this may be how things are. And it may be the next least puzzling possibility. This hypothesis is not the same as?though it includes?the Many Worlds Hypothesis. On that more cautious view, the many other worlds have the same elements as our world, and the same fundamental laws, and differ only in such features as their constants and initial conditions. The All Worlds Hypothesis covers every conceivable kind of world, and most of these other worlds would have very different elements and laws. If all these worlds exist, we can ask why they do. But, compared with most other cosmic possibilities, the All Worlds Hypothesis may leave less that is unexplained. For example, whatever the number of possible worlds that exist, we have the question, ‘Why that number?’ That question would have been least puzzling if the number that existed were none, and the next least arbitrary possibility seems to be that all these worlds exist. With every other cosmic possibility, we have a further question. If ours is the only world, we can ask: ‘Out of all the possible local worlds, why is this the one that exists?’ On any version of the Many Worlds Hypothesis, we have a similar question: ‘Why do just these worlds exist, with these elements and laws?’ But, if all these worlds exist, there is no such further question. It may be objected that, even if all possible local worlds exist, that does not explain why our world is as it is. But that is a mistake. If all

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these worlds exist, each world is as it is in the way in which each number is as it is. We cannot sensibly ask why 9 is 9. Nor should we ask why our world is the one it is: why it is this world. That would be like asking, ‘Why are we who we are?’, or ‘Why is it now the time that it is?’ Those, on re?ection, are not good questions. Though the All Worlds Hypothesis avoids certain questions, it is not as simple, or unarbitrary, as the Null Possibility. There may be no sharp distinction between worlds that are and are not possible. It is unclear what counts as a kind of world. And, if there are in?nitely many kinds, there is a choice between different kinds of in?nity. Whichever cosmic possibility obtains, we can ask why it obtains. All that I have claimed so far is that, with some possibilities, this question would be less puzzling. Let us now ask: Could this question have an answer? Might there be a theory that leaves nothing unexplained?

3 It is sometimes claimed that God, or the Universe, make themselves exist. But this cannot be true, since these entities cannot do anything unless they exist. On a more intelligible view, it is logically necessary that God, or the Universe, exist, since the claim that they might not have existed leads to a contradiction. On such a view, though it may seem conceivable that there might never have been anything, that is not really logically possible. Some people even claim that there may be only one coherent cosmic possibility. Einstein suggested that, if God created our world, he might have had no choice about which world to create. If such a view were true, everything might be explained. Reality might be the way it is because there was no conceivable alternative. But for reasons that have been often given, we can reject such views. Consider next a quite different view. According to Plato, Plotinus and others, the Universe exists because its existence is good. Even if we are con?dent that we should reject this view, it is worth asking whether it makes sense. If it does, that may suggest other possibilities. This Axiarchic View can take a theistic form. We might claim that God exists because his existence is good, and that the rest of the Universe

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exists because God caused it to exist. But in that explanation God, qua Creator, is redundant. If God can exist because his existence is good, so can the whole Universe. This may be why some theists reject the Axiarchic View, and insist that God’s existence is a brute fact, with no explanation. In its simplest form, this view makes three claims: (1) It would be best if reality were a certain way. (2) Reality is that way. (3) (1) explains (2). (1) is an ordinary evaluative claim, like the claim that it would be better if there was less suffering. The Axiarchic View assumes, I believe rightly, that such claims can be in a strong sense true. (2) is an ordinary empirical or scienti?c claim, though of a sweeping kind. What is distinctive in this view is claim (3), according to which (1) explains (2). Can we understand this third claim? To focus on this question, we should brie?y ignore the world’s evils, and suspend our other doubts about claims (1) and (2). We should suppose that, as Leibniz claimed, the best possible Universe exists. Would it then make sense to claim that this Universe exists because it is the best? That use of ‘because’, Axiarchists should admit, cannot be easily explained. But even ordinary causation is mysterious. At the most fundamental level, we have no idea why some events cause others; and it is hard to explain what causation is. There are, moreover, non-causal senses of ‘because’ and ‘why’, as in the claim that God exists because his existence is logically necessary. We can understand that claim, even if we think it false. The Axiarchic View is harder to understand. But that is not surprising. If there is some explanation of the whole of reality, we should not expect this explanation to ?t neatly into some familiar category. This extra-ordinary question may have an extra-ordinary answer. We should reject suggested answers which make no sense; but we should also try to see what might make sense. Axiarchy might be expressed as follows. We are now supposing that, of all the countless ways that the whole of reality might be, one is both the

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very best, and is the way that reality is. On the Axiarchic View, that is no coincidence. This claim, I believe, makes sense. And, if it were no coincidence that the best way for reality to be is also the way that reality is, that might support the further claim that this was why reality was this way. This view has one advantage over the more familiar theistic view. An appeal to God cannot explain why the Universe exists, since God would himself be part of the Universe, or one of the things that exist. Some theists argue that, since nothing can exist without some cause, God, who is the First Cause, must exist. As Schopenhauer objected, this argument’s premise is not like some cab-driver whom theists are free to dismiss once they have reached their destination. The Axiarchic View appeals, not to an existing entity, but to an explanatory law. Since such a law would not itself be part of the Universe, it might explain why the Universe exists, and is as good as it could be. If such a law governed reality, we could still ask why it did, or why the Axiarchic View was true. But, in discovering this law, we would have made some progress. It is hard, however, to believe the Axiarchic View. If, as it seems, there is much pointless suffering, our world cannot be part of the best possible Universe.

4 Some Axiarchists claim that, if we reject their view, we must regard our world’s existence as a brute fact, since no other explanation could make sense. But that, I believe, is not so. If we abstract from the optimism of the Axiarchic View, its claims are these: Of the countless cosmic possibilities, one both has some very special feature, and is the possibility that obtains. That is no coincidence. This possibility obtains because it has this feature. Other views can make such claims. This special feature need not be that of being best. Thus, on the All Worlds Hypothesis, reality is maximal, or as full as it could be. Similarly, if nothing had ever existed, reality would have been minimal, or as empty as it could be. If the possibility that obtained were either maximal, or minimal, that fact, we might claim,

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would be most unlikely to be a coincidence. And that might support the further claim that this possibility’s having this feature would be why it obtained. Let us now look more closely at that last step. When it is no coincidence that two things are both true, there is something that explains why, given the truth of one, the other is also true. The truth of either might make the other true. Or both might be explained by some third truth, as when two facts are the joint effects of a common cause. Suppose next that, of the cosmic possibilities, one is both very special and is the one that obtains. If that is no coincidence, what might explain why these things are both true? On the reasoning that we are now considering, the ?rst truth explains the second, since this possibility obtains because it has this special feature. Given the kind of truths these are, such an explanation could not go the other way. This possibility could not have this feature because it obtains. If some possibility has some feature, it could not fail to have this feature, so it would have this feature whether or not it obtains. The All Worlds Hypothesis, for example, could not fail to describe the fullest way for reality to be. While it is necessary that our imagined possibility has its special feature, it is not necessary that this possibility obtains. This difference, I believe, justi?es the reasoning that we are now considering. Since this possibility must have this feature, but might not have obtained, it cannot have this feature because it obtains, nor could some third truth explain why it both has this feature and obtains. So, if these facts are no coincidence, this possibility must obtain because it has this feature. When some possibility obtains because it has some feature, its having this feature may be why some agent, or some process of natural selection, made it obtain. These we can call the intentional and evolutionary ways in which some feature of some possibility may explain why it obtains. Our world, theists claim, can be explained in the ?rst of these ways. If reality were as good as it could be, it would indeed make sense to claim that this was partly God’s work. But, since God’s own existence could not be God’s work, there could be no intentional explanation of why the whole of reality was as good as it could be. So we could reasonably conclude that this way’s being the best explained directly why reality was this way. Even if God exists, the intentional explanation

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could not compete with the different and bolder explanation offered by the Axiarchic View. Return now to other explanations of this kind. Consider ?rst the Null Possibility. This, we know, does not obtain; but, since we are asking what makes sense, that does not matter. If there had never been anything, would that have had to be a brute fact, which had no explanation? The answer, I suggest, is No. It might have been no coincidence that, of all the countless cosmic possibilities, what obtained was the simplest, and least arbitrary, and the only possibility in which nothing ever exists. And, if these facts had been no coincidence, this possibility would have obtained because?or partly because?it had one or more of these special features. This explanation, moreover, could not have taken an intentional or evolutionary form. If nothing had ever existed, there could not have been some agent, or process of selection, who or which made this possibility obtain. Its being the simplest or least arbitrary possibility would have been, directly, why it obtained. Consider next the All Worlds Hypothesis, which may obtain. If reality is as full as it could be, is that a coincidence? Does it merely happen to be true that, of all the cosmic possibilities, the one that obtains is at this extreme? As before, that is conceivable, but this coincidence would be too great to be credible. We can reasonably assume that, if this possibility obtains, that is because it is maximal, or at this extreme. On this Maximalist View, it is a fundamental truth that being possible, and part of the fullest way that reality could be, is suf?cient for being actual. That is the highest law governing reality. As before, if such a law governed reality, we could still ask why it did. But, in discovering this law, we would have made some progress. Here is another special feature. Perhaps reality is the way it is because its fundamental laws are, on some criterion, as mathematically beautiful as they could be. That is what some physicists are inclined to believe. As these remarks suggest, there is no clear boundary here between philosophy and science. If there is such a highest law governing reality, this law is of the same kind as those that physicists are trying to discover. When we appeal to natural laws to explain some features of reality, such as the relations between light, gravity, space, and time, we are not giving causal explanations, since we are not claiming that one part of reality

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caused another part to be some way. What such laws explain, or partly explain, are the deeper facts about reality that causal explanations take for granted. There would be a highest law, of the kind that I have sketched, if some cosmic possibility obtained because it had some special feature. This feature we can call the Selector. If there is more than one such feature, they are all partial Selectors. Just as there are various cosmic possibilities, there are various explanatory possibilities. For each of these special features, there is the explanatory possibility that this feature is the Selector, or is one of the Selectors. Reality would then be the way it is because, or partly because, this way had this feature. There is one other explanatory possibility: that there is no Selector. If that is true, it is random that reality is as it is. Events may be in one sense random, even though they are causally inevitable. That is how it is random whether a meteorite strikes the land or the sea. Events are random in a stronger sense if they have no cause. That is what most physicists believe about some features of events involving sub-atomic particles. If it is random what reality is like, the Universe not only has no cause. It has no explanation of any kind. This claim we can call the Brute Fact View. Few features can be plausibly regarded as possible Selectors. Though plausibility is a matter of degree, there is a natural threshold to which we can appeal. If we suppose that reality has some special feature, we can ask which of two beliefs would be more credible: that reality merely happens to have this feature, or that reality is the way it is because this way has this feature. If the second would be more credible, this feature can be called a credible Selector. Return for example to the question of how many possible local worlds exist. Of the different answers to this question, all and none give us, I have claimed, credible Selectors. If either all or no worlds existed, that would be unlikely to be a coincidence. But suppose that 58 worlds existed. This number has some special features, such as being the smallest number that is the sum of seven different primes. It may be just conceivable that this would be why 58 worlds existed; but it would be more reasonable to believe that the number that existed merely happened to be 58. There are, I have claimed, some credible Selectors. Reality might be some way because that way is the best, or the simplest, or the least

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arbitrary, or because its obtaining makes reality as full and varied as it could be, or because its fundamental laws are, in some way, as elegant as they could be. Presumably there are other such features, which I have overlooked. In claiming that there are credible Selectors, I am assuming that some cosmic and explanatory possibilities are more probable than others. That assumption may be questioned. Judgments of probability, it may again be claimed, must be grounded on facts about our world, so such judgments cannot be applied either to how the whole of reality might be, or to how reality might be explained. This objection is, I believe, unsound. When we choose between scienti?c theories, our judgments of their probability cannot rest only on predictions based on established facts and laws. We need such judgments in trying to decide what these facts and laws are. And we can justi?ably make such judgments when considering different ways in which the whole of reality may be, or might have been. Compare two such cosmic possibilities. In the ?rst, there is a lifeless Universe consisting only of some spherical iron stars, whose relative motion is as it would be in our world. In the second, things are the same, except that the stars move together in the patterns of a minuet, and they are shaped like either Queen Victoria or Cary Grant. We would be right to claim that, of these two possibilities, the ?rst is more likely to obtain. In making that claim, we would not mean that it is more likely that the ?rst possibility obtains. Since this possibility is the existence of a lifeless Universe, we know that it does not obtain. We would be claiming that this possibility is intrinsically more likely, or that, to put it roughly, it had a greater chance of being how reality is. If some possibility is more likely to obtain, that will often make it more likely that it obtains; but though one kind of likelihood supports the other, they are quite different. Another objection may again seem relevant here. Of the countless cosmic possibilities, a few have special features, which I have called credible Selectors. If such a possibility obtains, we have, I have claimed, a choice of two conclusions. Either reality, by an extreme coincidence, merely happens to have this feature, or?more plausibly?this feature is one of the Selectors. It may be objected that, when I talk of an extreme coincidence, I must be assuming that these cosmic possibilities are all equally likely

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to obtain. But I have now rejected that assumption. And, if these possibilities are not equally likely, my reasoning may seem to be undermined. As before, that is not so. Suppose that, of the cosmic possibilities, those that have these special features are much more likely to obtain. As this objection rightly claims, it would not then be amazing if such a possibility merely happened to obtain. But that does not undermine my reasoning, since it is another way of stating my conclusion. It is another way of saying that these features are Selectors. These remarks do show, however, that we should distinguish two ways in which some feature may be a Selector. Probabilistic Selectors make some cosmic possibility more likely to obtain, but leave it open whether it does obtain. On any plausible view, there are some Selectors of this kind, since some ways for reality to be are intrinsically more likely than some others. Thus of our two imagined Universes, the one consisting of spherical stars is intrinsically more likely than the one with the dancing stars that are shaped like Queen Victoria or Cary Grant. Besides Probabilistic Selectors, there may also be one or more Effective Selectors. If some possibility has a certain feature, this may make this possibility, not merely intrinsically more likely, but the one that obtains. Thus, if simplicity had been the Effective Selector, that would have made it true that nothing ever existed. And, if maximality is the Effective Selector, as it may be, that is what makes reality as full as it could be. When I talk of Selectors, these are the kind I mean.

5 There are, we have seen, various cosmic and explanatory possibilities. In trying to decide which of these obtain, or are actual, we can in part appeal to facts about our world. Thus, from the mere fact that our world exists, we can deduce that the Null Possibility does not obtain. And, since our world seems to contain pointless evils, we have reason to reject the Axiarchic View. Consider next the Brute Fact View, on which reality merely happens to be as it is. No facts about our world could refute this view. But some facts would make it less likely that this view is true. If reality is randomly selected, what we should expect to exist are many varied worlds, none

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of which had features that, in the range of possibilities, were at one extreme. That is what we should expect because, in much the largest set of cosmic possibilities, that would be what exists. If our world has very special features, that would count against the Brute Fact View. Return now to the question whether God exists. Compared with the uncaused existence of one or many complicated worlds, the hypothesis that God exists has been claimed to be simpler, and less arbitrary, and thus more likely to be true. But this hypothesis is not simpler than the Brute Fact View. And, if it is random which cosmic possibility obtains, we should not expect the one that obtains to be as simple, and unarbitrary, as God’s existence is claimed to be. Rather, as I have just said, we should expect there to be many worlds, none of which had very special features. Ours may be the kind of world that, on the Brute Fact View, we should expect to observe. Similar remarks apply to the All Worlds Hypothesis. Few facts about our world could refute this view; but, if all possible local worlds exist, the likely character of our world is much the same as on the Brute Fact View. That claim may seem surprising, given the difference between these two views. One view is about which cosmic possibility obtains, the other is about why the one that obtains obtains. And these views con?ict, since, if we knew that either view was true, we would have strong reason not to believe the other. If all possible worlds exist, that is unlikely to be a brute fact. But, in their different ways, these views are both non-selective. On neither view do certain worlds exist because they have certain special features. So, if either view is true, we should not expect our world to have such features. To that last claim, there is one exception. This is the feature with which we began: that our world allows for life. Though this feature is, in some ways, special, it is one that we cannot help observing. That restricts what we can infer from the fact that our world has this feature. Rather than claiming that being life-allowing is one of the Selectors, we can appeal to some version of the Many Worlds Hypothesis. If there are very many worlds, we would expect a few worlds to be life-allowing, and our world is bound to be one of these few. Consider next special features of another kind: ones that we are not bound to observe. Suppose we discover that our world has such a

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feature, and we ask whether that is no coincidence. It may again be said that, if there are many worlds, we would expect a few worlds to have this special feature. But that would not explain why that is true of our world. We could not claim?as with the feature of being life-allowing?that our world is bound to have this feature. So the appeal to many worlds could not explain away the coincidence. Suppose, for example, that our world were very good, or were wholly law-governed, or had very simple natural laws. Those facts would count against both of the unselective views: both the All Worlds Hypothesis and the Brute Fact View. It is true that, if all worlds exist, or there are very many randomly selected worlds, we should expect a few worlds to be very good, or wholly law-governed, or to have very simple laws. But that would not explain why our world had those features. So we would have some reason to believe that our world is the way it is because this way has those features. Does our world have such features: ones that count against the unselective views? Our world’s normative or evaluative features seem not to count against these views, since they seem the mixture of good and bad that, on the unselective views, we should expect. But our world may have two other special features: being wholly law-governed, and having very simple laws. Neither feature seems to be required in order for life to be possible. And, among possible life-containing worlds, a far greater range would not have these features. Thus, for each law-governed world, there are countless variants that would fail in different ways to be wholly law-governed. And, compared with simple laws, there is a far greater range of complicated laws. So, on both the unselective views, we should not expect our world to have these features. If it has them, as physicists might discover, that would give us reasons to reject both the All Worlds Hypothesis and the Brute Fact View. We would have some reason to believe that there are at least two partial Selectors: being law-governed and having simple laws. There may be other features of our world from which we can try to infer what reality is like, and why. But observation can take us only part of the way. If we can get further, that will have to be by pure reasoning.

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6 Of those who accept the Brute Fact View, many assume that this view must be true. According to these people, though reality merely happens to be some way, the fact that reality merely happens to be some way does not merely happen to be true. There could not possibly be an explanation of why reality is the way it is, since there could not be a causal explanation, and no other explanation would make sense. This assumption, I have argued, is mistaken. Reality might be the way it is because this way is the fullest, or the most varied, or obeys the simplest or most elegant laws, or has some other special feature. Since the Brute Fact View is not the only explanatory possibility, we should not assume that it must be true. When supporters of this view recognize these other possibilities, they may switch to the other extreme, claiming that their view’s truth is another brute fact. If that were so, not only would there be no explanation of reality’s being as it is, there would also be no explanation of there being no such explanation. As before, though this might be true, we should not assume that it must be true. If some explanatory possibility merely happens to obtain, the one that obtains may not be the Brute Fact View. If it is randomly selected whether reality is randomly selected, and there are other possibilities, random selection may not be selected. There is, moreover, another way in which some explanatory possibility may obtain. Rather than merely happening to obtain, this possibility may have some feature, or set of features, which explains why it obtains. Such a feature would be a Selector at a higher level, since it would apply not to factual but to explanatory possibilities. This feature would determine, not that reality be a certain way, but that it be determined in a certain way how reality is to be. If the Brute Fact View is true, it may have been selected in some such way. For example, of the explanatory possibilities, this view seems to describe the simplest, since its claim is only that reality has no explanation. This possibility’s being the simplest may make it the one that obtains. Simplicity may be the higher Selector, determining that there is no Selector between the ways that reality might be. Once again, however, though this may be true, we could not assume its truth. There may be some other higher Selector. Some explanatory

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possibility may obtain, for example, because it is the least arbitrary, or is the one that explains most. The Brute Fact View has neither of those features. Or there may be no higher Selector, since some explanatory possibility may merely happen to obtain. These alternatives are the different possibilities at yet another, higher explanatory level. So we have the same two questions: Which obtains, and Why? We may now become discouraged. Every answer, it may seem, raises a further question. But that may not be so. There may be some answer that is a necessary truth. With that necessity, our search would end. Some truth is logically necessary when its denial leads to a contradiction. It cannot be in this sense necessary either that reality is a brute fact, or that there is some Selector. Both these claims can be denied without contradiction. There are also non-logical necessities. The most familiar, causal necessity, cannot give us the truth we need. It could not be causally necessary that reality is, or isn’t, a brute fact. Causal necessities come lower down. Similar remarks apply to the necessities involved in the essential properties of particular things, or natural kinds. Consider next the metaphysical necessity that some writers claim for God’s existence. That claim means, they say, that God’s existence does not depend on anything else, and that nothing else could cause God to cease to exist. But these claims do not imply that God must exist, and that makes such necessity too weak to end our questions. There are, however, some kinds of necessity that would be strong enough. Consider the truths that undeserved suffering is bad, and that, if we know that some argument is valid and has true premises, we ought rationally to believe this argument’s conclusion. These truths are not logically necessary, since their denials would not lead to contradictions. But they could not have failed to be true. Undeserved suffering does not merely happen to be bad. When John Leslie defends the Axiarchic View, he appeals to this kind of non-logical necessity. Not only does value rule reality, Leslie suggests, it could not have failed to rule. But this suggestion is hard to believe. While it is inconceivable that undeserved suffering might have failed to be in itself bad, it is clearly conceivable that value might

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have failed to rule, if only because it seems so clear that value does not rule. Return now to the Brute Fact View, which is more likely to be true. If this view is true, could its truth be non-logically necessary? Is it inconceivable that there might have been some Selector, or highest law, making reality be some way? The answer, I have claimed, is No. Even if reality is a brute fact, it might not have been. Thus, if nothing had ever existed, that might have been no coincidence. Reality might have been that way because, of the cosmic possibilities, it is the simplest and least arbitrary. And as I have also claimed, just as it is not necessary that the Brute Fact View is true, it is not necessary that this view’s truth be another brute fact. This view might be true because it is the simplest of the explanatory possibilities. We have not yet found the necessity we need. Reality may happen to be as it is, or there may be some Selector. Whichever of these is true, it may happen to be true, or there may be some higher Selector. These are the different possibilities at the next explanatory level, so we are back with our two questions: Which obtains, and Why? Could these questions continue for ever? Might there be, at every level, another higher Selector? Consider another version of the Axiarchic View. Reality might be as good as it could be, and that might be true because its being true is best, and that in turn might be true because its being true is best, and so on for ever. In this way, it may seem, everything might be explained. But that is not so. Like an in?nite series of events, such a series of explanatory truths could not explain itself. Even if each truth were made true by the next, we could still ask why the whole series was true, rather than some other series, or no series. The point can be made more simply. Though there might be some highest Selector, this might not be goodness but some other feature, such as non-arbitrariness. What could select between these possibilities? Might goodness be the highest Selector because that is best, or non-arbitrariness be this Selector because that is the least arbitrary possibility? Neither suggestion, I believe, makes sense. Just as God could not make himself exist, no Selector could make itself the one that, at the highest level, rules. No Selector could settle whether it rules, since it cannot settle anything unless it does rule.

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If there is some highest Selector, this cannot, I have claimed, be a necessary truth. Nor could this Selector make itself the highest. And, since this Selector would be the highest, nothing else could make that true. So we may have found the necessity we need. If there is some highest Selector, that, I suggest, must merely happen to be true. Supporters of the Brute Fact View may now feel vindicated. Have we not, in the end, accepted their view? We have not. According to the Brute Fact View, reality merely happens to be as it is. That, I have argued, may not be true, since there may be some Selector which explains, or partly explains, reality’s being as it is. There may also be some higher Selector which explains there being this Selector. My suggestion is only that, at the end of any such explanatory chain, some highest Selector must merely happen to be the one that rules. That is a different view. This difference may seem small. No Selector could explain reality, we may believe, if it merely happened to rule. But this thought, though natural, is a mistake. If some explanation appeals to some brute fact, it does not explain this fact; but it may explain others. Suppose, for example, that reality is as full as it could be. On the Brute Fact View, this fact would have no explanation. On the Maximalist View, reality would be this way because the single highest law is that every local possibility is actual. If reality were as full as it could be, this Maximalist View would be better than the Brute Fact View, since it would explain reality’s being this way. And this view would provide that explanation even if it merely happened to be true. It makes a difference where the brute fact comes. Part of the difference here is that, while there are countless cosmic possibilities, there are few plausible explanatory possibilities. If reality is as full as it could be, that’s being a brute fact would be very puzzling. Since there are countless cosmic possibilities, it would be amazing if the one that obtained merely happened to be at the maximal extreme. On the Maximalist View, this fact would be no coincidence. And, since there are few explanatory possibilities, it would not be amazing if the Maximalist highest law merely happened to be the one that rules. We should not claim that, if some explanation rests on a brute fact, it is not an explanation. Most scienti?c explanations take this form. The

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most that might be true is that such an explanation is, in a way, merely a better description. If that were true, there would be a different defence of the kind of reasoning that we have been considering. Even to discover how things are, we need explanations. And we may need explanations on the grandest scale. Our world may seem to have some feature that would be unlikely to be a coincidence. We may reasonably suspect that this feature is the Selector, or one of the Selectors. That hypothesis might lead us to con?rm that, as it seemed, our world does have this feature. And that might give us reason to conclude either that ours is the only world, or that there are other worlds, with the same or related features. We might thus reach truths about the whole Universe. Even if all explanations must end with a brute fact, we should go on trying to explain why the Universe exists, and is as it is. The brute fact may not enter at the lowest level. If reality is the way it is because this way has some feature, to know what reality is like, we must ask why.

7 We may never be able to answer these questions, either because our world is only a small part of reality, or because, though our world is the whole of reality, we could never know that to be true, or because of our own limitations. But as I have tried to show, we may come to see more clearly what the possible answers are. Some of the fog that shrouds these questions may then disappear. It can seem astonishing, for example, how reality could be made to be as it is. If God made the rest of reality be as it is, what could have made God exist? And, if God does not exist, what else could have made reality be as it is? When we think about these questions, even the Brute Fact View may seem unintelligible. It may be baf?ing how reality could be even randomly selected. What kind of process could select whether, for example, time had no beginning, or whether anything ever exists? When, and how, could any selection be made? This is not a real problem. Of all the possible ways that the whole of reality might be, there must be one that is the way reality actually

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is. Since it is logically necessary that reality be some way or other, it is necessary that one way be picked to be the way that reality is. Logic ensures that, without any kind of process, a selection is made. There is no need for hidden machinery. Suppose next that, as many people assume, the Brute Fact View must be true. If our world has no very special features, there would then be nothing that was deeply puzzling. If it were necessary that some cosmic possibility be randomly selected, while there would be no explanation of why the selection went as it did, there would be no mystery in reality’s being as it is. Reality’s features would be inexplicable, but only in the way in which it is inexplicable how some particle randomly moves. If a particle can merely happen to move as it does, reality could merely happen to be as it is. Randomness may even be less puzzling at the level of the whole Universe, since we know that facts at this level could not have been caused. The Brute Fact View, I have argued, is not necessary, and may not be true. There may be one or more Selectors between the ways that reality might be, and one or more Selectors between such Selectors. But as I have also claimed, it may be a necessary truth that it be a brute fact whether there are such Selectors, and, if so, which the highest Selector is. If that is a necessary truth, similar remarks apply. On these assumptions, there would again be nothing that was deeply puzzling. If it is necessary that, of these explanatory possibilities, one merely happens to obtain, there would be no explanation of why the one that obtains obtains. But as before, that would be no more mysterious than the random movement of some particle. The existence of the Universe can seem, in another way, astonishing. Even if it is not baf?ing that reality was made to be some way, since there is no conceivable alternative, it can seem baf?ing that the selection went as it did. Why is there a Universe at all? Why doesn’t reality take its simplest and least arbitrary form: that in which nothing ever exists? If we ?nd this astonishing, we are assuming that these features should be the Selectors: that reality should be as simple and unarbitrary as it could be. That assumption has, I believe, great plausibility. But, just as

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the simplest cosmic possibility is that nothing ever exists, the simplest explanatory possibility is that there is no Selector. So we should not expect simplicity at both the factual and explanatory levels. If there is no Selector, we should not expect that there would also be no Universe. That would be an extreme coincidence.

APPENDIX E

The Fair Warning View Even if no one deserves to be punished, that does not imply that all punishment is wrong. Since the word ‘punishment’ is sometimes used in a retributive sense, I shall here use the more neutral word ‘penalty’. We can plausibly believe that, when certain acts have been made illegal, so that these acts are crimes, our community can be morally justi?ed in imposing certain penalties on those who knowingly commit these crimes. Such penalties, we can admit, need to be morally justi?ed, since they impose burdens on people, and such burdens are not deserved. But of the people who believe in retributive justice, nearly all believe that we are sometimes justi?ed in imposing undeserved penalties. That is true, for example, in cases that involve strict liability. There are various penalties that people can be justi?ably required to pay, even if they have not knowingly committed any crime, nor been negligent or to blame in other ways. Some examples are the ?nes or damages that some people are required to pay for harms that were caused by their young children. In most kinds of case, we can plausibly claim that (W) though penalties cannot be just or unjust in the desert-implying retributive sense, such penalties can be fair or unfair. When people knowingly commit some crime, or break some other rule or regulation, it may be fair to impose some penalties on these people, which may be either imprisonment or ?nes. Such penalties are, in some ways, like the prices that we know that we shall have to pay if we act in certain ways. In many cases, for example, we cannot reasonably expect to be permitted to take away someone’s property unless we pay some price, in a free exchange, so that this property ?rst becomes ours. In

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such cases, if we steal someone’s property, and we are caught, we cannot reasonably object to paying some greater price, which would here be imposed on us as a penalty. The extra payment would be intended in part to cover the costs of our being caught and convicted, and in part to deter similar future crimes. Even if such penalties are not deserved, they may not be unfair, since they are the penalties that these people knew would be imposed on them if they commit these crimes, and they are caught and convicted. If these penalties would also do enough good, by deterring other crimes, these facts may be enough to make these penalties justi?ed. These claims do not apply to people who have not committed any crime. Since these people have not chosen to act in some way for which they knew that penalties would be imposed, it would be unfair to impose any great penalties on them. This unfairness provides a strong moral objection to imposing such penalties. And unless these people were falsely believed to have committed some crime, these penalties would also do nothing to deter future crimes. These facts would always, or nearly always, make such treatment wrong. When we claim that it would be unfair to treat people in certain ways, we are not claiming that such treatment would be retributively unjust. This distinction is clearer in cases that don’t involve any penalty or reward. If you were made to pay for something that you hadn’t bought, or for some service that you hadn’t received, that treatment would be unfair, though you don’t deserve not to be treated in this way. This account of justi?ed punishment could be called the Fair Warning View. To illustrate this view, we can consider the importance of avoiding mistaken convictions. Suppose we knew that, if we had much stronger legal safeguards in the procedures of criminal trials, it would be true both that somewhat fewer innocent people would be mistakenly convicted and punished for murder, and that many murderers would not be convicted, and many people would not later be deterred from committing murders.

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We might be able to predict that, for each innocent person who is not mistakenly punished, at least two innocent people would later be murdered. It is often claimed that, if we believe in retributive justice, we shall give more weight to avoiding mistaken convictions, and less weight to deterring later murders. But that may not be true. If we are Retributivists, we shall believe it to be bad when any innocent person is punished, since this person is not then being treated as he deserves. But we shall also believe it to be bad when any guilty person is not punished, since this person is also not being treated as he deserves. If we have stronger legal safeguards, so that many fewer murderers are punished, we may on the whole be less successful in treating people as we believe that they deserve to be treated. If we are not Retributivists, we do not believe it to be in itself bad when murderers are not punished. Though we believe that innocent people do not deserve to be punished, we also believe that guilty people do not deserve to be punished. On our view, all punishment is in itself bad. We therefore have less reason for regret if, as one result of reducing the risks of mistaken convictions, we punish fewer murderers. We may also have a different reason to reduce these risks. On the Fair Warning View, it is in itself bad, because unfair, when anyone is punished for some crime that he or she has not committed. Even if these views gave similar weight to avoiding mistaken convictions, our attitudes to punishment, and to the people who are punished, would be transformed by disbelief in retribution. We often have more reason to be sorry, not for the victim of some crime, but for the criminal. Compared with their victims, criminals have often lived more deprived and wretched lives. When we imprison such people, in order to deter future crimes, we should greatly regret what we are doing. We should regard these criminals as like people who are quarantined, because they have some dangerous and infectious disease. Any criminal’s well-being matters just as much as ours.

APPENDIX F

Some of Kant’s Arguments for his Formula of Universal Law 1 In the second section of the Groundwork, Kant writes: (A) All imperatives command either hypothetically or categorically. The former represent the practical necessity of a possible action as a means of attaining something else that one wills (or might will). The categorical imperative would be one which represented an action as objectively necessary of itself, without reference to another end. (G 414) Kant here asserts that there are only two kinds of claim about what is practically necessary, or what we are required to do. Imperatives are hypothetical if they require us to do something as a means of achieving some end whose achievement we have willed. Imperatives are categorical if they require us to do something, not as a means of achieving any other end, but as an end, or for its own sake. These are not, as Kant asserts, the only two kinds of imperative. Kant’s remarks draw two distinctions, which combine to give us four possibilities. Some imperative may require us to act in some way either as a means or not as a means, of achieving but as an end or some end, for its own sake and either if we will this act or the achievement of this end,

(1)

(2)

(3)

(4)

or whatever we will

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All imperatives, Kant claims, are of types (1) or (4). Kant ignores (2) and (3). It does not matter if we ignore imperatives of type (2), which require us to do something for its own sake, if and because we will this act. It matters greatly, however, if we ignore imperatives of type (3). Categorical imperatives are unconditional, in the sense that they apply to us whatever we want or will. All such imperatives, Kant’s remarks imply, require us to act in some way, not as a means of achieving some end, but only as an end, or for the sake of acting in this way. That is not true. Of the imperatives which apply to us whatever we want or will, some might require us to act in some way as a means of achieving some unconditionally required end. At one point, Kant seems to acknowledge that there might be such imperatives. He writes: What serves the will as the objective ground of its selfdetermination is an end, and this, if it is given by reason alone, must hold equally for all rational beings … The subjective ground of desire is an incentive; the objective ground of volition is a motive, hence the distinction between subjective ends, which rest on incentives, and objective ends, which depend on motives, which hold for every rational being. (G 427?8) Kant here claims that, while some ends are subjective, there are also objective ends, which reason gives to all rational beings. Some of these might be ends in the ordinary sense: something that we might try to achieve. These are what Kant calls ends-to-be-produced. Since Kant distinguishes between such objective ends and merely subjective ends, we would expect that, after describing a class of imperatives which are hypothetical, because they appeal to our subjective ends, Kant would describe a class of imperatives that are categorical, because they give us objective ends-to-be-produced. But Kant claims instead that all categorical imperatives declare some act to be necessary of itself, without reference to another end. This claim implies that there are no objective ends-to-be-produced given by reason to all rational beings. And in both the Groundwork and the Second Critique, Kant assumes that there

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are no such ends. Kant’s formal Categorical Imperative may indirectly require us to try to achieve certain ends, as when Kant argues that his Formula of Universal Law implies that we are required to develop our talents. But that does not make this formula an imperative of type (3). Only ten years later, in his Metaphysics of Morals, does Kant claim that there are two such ends: our own perfection and the happiness of others. Since Kant later claimed that there are two such objective ends-to-beproduced, it may seem not to matter that, in the Groundwork and the Second Critique, Kant assumes that there are no such ends. But this does matter. Kant’s assumption makes a great difference to his arguments in these earlier, more important books. To help us to assess these claims and arguments, we can next distinguish various senses in which Kant uses two of his most important terms: ‘material’ and ‘formal’. These senses partly overlap with Kant’s uses of ‘hypothetical’ and ‘categorical’. In his most explicit de?nition, Kant writes: Practical principles are formal when they abstract from all subjective ends; they are material when they are grounded upon subjective ends, and hence on certain incentives (G 427?8). Some imperative or principle ‘abstracts’ from our subjective ends, if this principle applies to us, or requires something from us, whatever we want or will. We can call such principles normatively formal in sense 1. Other principles apply to us only if we have certain desires, or subjective ends. We can call such principles normatively material in sense 1. When some principle is in this sense normatively material, we can be moved to act on this principle, Kant assumes, only by a desire to achieve some subjective end. So we can also call such principles motivationally material. But when some principle is normatively formal in sense 1, because it applies to us whatever we want or will, our acceptance of this principle can move us to act, Kant claims, without the help of any the ordinary desires that Kant calls ‘incentives’. We can call such principles motivationally formal.

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We can call principles teleological if they require us to act in certain ways as a means of achieving some end. Kant sometimes uses the word ‘matter’ to refer, not only to subjective ends, but to any end-tobe-produced. Thus he de?nes the ‘matter’ of an action as ‘what is to result from it’ (G 428). Since teleological principles have a ‘matter’ in this wider sense, we can call such principles normatively material in sense 2. There are also principles which are not teleological. Since these principles are not normatively material in sense 2, we can call them normatively formal in sense 2. These principles are deontological if they require us to act in some way as an end, or for its own sake, rather than as a means of achieving some other end. Two examples might be requirements not to lie, and not to injure anyone as a means of bene?ting others. Some principles are neither purely teleological nor purely deontological, since these principles require us to act in certain ways partly as an end, or for its own sake, and partly as a means of achieving some other end. That is true, for example, of the principles that require us to keep our promises, and pay our debts. Such principles are often called ‘deontological’ in a different sense that means ‘not purely teleological’. There is another kind of non-teleological principle. Rather than requiring us to act in certain ways, some principles impose some merely formal constraint on our decisions and our acts. One example is Kant’s Formula of Universal Law, which requires us to act only on maxims that we could will to be universal laws. We can call such principles normatively formal in sense 3. Principles that are not, in this sense, normatively formal we can call substantive, or normatively material in sense 3. Deontological principles, we should note, are in this sense material, since they require us to act in certain ways. Kant claims that his formula requires ‘mere conformity to law as such, without appeal to any law that requires acting in certain ways’ (G 402). Deontological principles are, precisely, laws that require us to act in certain ways. We have, then, three normative senses of both ‘formal’ and ‘material’, and one motivational sense. When applied to principles, these senses can be summed up as follows:

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motivationally material: motivates us only with the help of some desire

motivationally formal: motivates us all by itself

normatively material in sense 1, or hypothetical: applies to us only if and because there is something that we want or will

normatively formal in sense 1, or categorical: applies to us whatever we want or will

normatively material in sense 2, or teleological: tells us to act in a certain way as a means of achieving some end

normatively formal in sense 2: not teleological

normatively material in sense 3, or substantive: tells us to act in a certain way

normatively formal in sense 3: imposes only a general constraint on our maxims or our acts.

2 We can now turn to some of Kant’s arguments for his Formula of Universal Law, which Kant also calls his Formal Principle, as I shall sometimes do below. One of Kant’s arguments, in Groundwork 2, assumes one of the claims that I have already discussed. Kant writes: all imperatives command either hypothetically or categorically. The former represent the practical necessity of a possible action as a means of achieving something else that one wills (or might will). The categorical imperative would be one which represented an action as objectively necessary of itself, without reference to another end. (G 414)

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Kant later writes: we want ?rst to enquire whether the mere concept of a categorical imperative may not also provide its formula containing the proposition which alone can be a categorical imperative … When I think of a hypothetical imperative in general I do not know before hand what it will contain … But when I think of a categorical imperative, I know at once what it contains. For since the imperative contains, beyond the law, only the necessity that the maxim be in conformity with this law, while the law contains no condition to which it would be limited, nothing is left with which the maxim of the action should conform but the universality of a law as such, and this conformity alone is what the imperative properly represents as necessary. Hence there is only one categorical imperative, and it is this: Act only in accordance with that maxim through which you can at the same time will that it become a universal law. (G 420?1) In these passages, Kant argues: (1) All principles or imperatives are either hypothetical, requiring us to act in some way as means of achieving some end that we have willed, or categorical, requiring us to act in some way as an end, or for its own sake only, rather than as a means of achieving any other end. (2) Categorical imperatives impose only a formal constraint on our maxims and our acts, since these imperatives require only conformity with the universality of a law as such. Therefore There is only one categorical imperative, which requires us to act only on maxims that we could will to be universal laws. This argument fails. Kant’s premises are false, and even if they were true, Kant’s conclusion would not follow.

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Both of Kant’s premises, as we have seen, overlook those categorical imperatives which are teleological, requiring us to try to achieve some objective end-to-be-produced. Kant’s second premise also overlooks those categorical imperatives which are deontological, requiring us to act in some way partly or wholly for its own sake. Two examples would be requirements to keep our promises and not to lie. Such imperatives do not impose only a formal constraint. As several writers note, Kant’s conclusion involves a third mistake. Kant assumes that, if some imperative imposes only a formal constraint, this imperative must be his Formula, which requires us to act only on maxims that we could rationally will to be universal laws. That is not true, since there are other possible formal constraints. One example is a requirement to act only in ways in which we believe that it would be rational for everyone to act. This requirement is quite different from Kant’s Formula. If we are Rational Egoists, for example, we shall believe that everyone is rationally required to try to do whatever would be best for themselves, though we could not rationally will it to be true that everyone acts in this way. This mistake might be reparable. Kant might argue that, of the possible formal constraints, only his Formula of Universal Law meets some further requirement that any acceptable principle must meet. But this argument’s other premises cannot be repaired. There is no hope of showing that, if some imperative is categorical, it must impose only a formal constraint. Why did Kant make these mistakes? He may have had in mind, but failed to distinguish, the three senses in which imperatives can be normatively formal. If Kant had distinguished these senses, he would have seen that his argument assumes that being formal in sense 1 implies being formal sense 2, which implies being formal in sense 3. Kant could not have believed that these inferences are valid. The ?rst inference assumes that, if some imperative applies to us whatever we want or will, it cannot require us to act in some way as a means of achieving some required end. That is obviously false. The second inference assumes that, if some imperative does not require us to try to achieve some end, it cannot require us to act in certain ways, but

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must impose only a formal constraint. That is also obviously false. Kant’s failure to notice these points may be due to his preference for thinking at the most abstract level. Only that could explain how, in giving this argument, Kant overlooks the possibility of both teleological and deontological categorical imperatives. Kant thereby overlooks most of the moral principles that other people accept. We can turn next to Groundwork 1. Consider ?rst these remarks: an action from duty has its moral worth … in the principle of volition in accordance with which the act is done without regard for any object of the faculty of desire … For the will stands between its a priori principle, which is formal, and its a posteriori incentive, which is material, as at a crossroads; and since it must still be determined by something, it must be determined by the formal principle of volition if it does an action from duty, since every material principle has been withdrawn from it … [Hence] mere conformity to law as such, without having as its basis some law determined for certain actions, is what serves the will as its principle, and must so serve it if duty is not to be everywhere an empty delusion … (G 399?402) Kant’s argument here is this: (1) An act has moral worth only when the agent’s motive is to do his duty. (2) Such an agent acts on a principle which is not material, since it does not appeal to any of his desires. (3) Such a principle must be formal, requiring mere conformity to law as such. Therefore (4) This requirement is the only moral law. In explaining his ?rst premise, Kant compares two philanthropists (398). The ?rst helps other people out of sympathy, or because he

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wants to make them happy. The second helps others because he believes that to be his duty. Of these people, Kant claims, the ?rst is lovable, and deserves praise, but only the acts of the second have moral worth. This may be Kant’s least popular claim, damaging his reputation even more than his claim that we should not lie to prevent a murder. Kant’s view about moral worth has, however, been well defended. And we don’t need to consider such defences, since Kant’s argument need not appeal to Kant’s view about moral worth. Kant’s ?rst two premises could become (5) When we act in some way because we believe this act to be our duty, we are acting on some principle which does not appeal to our desires. With some quali?cations which we can here ignore, this claim is true. According to this argument’s other premise, if some principle does not appeal to our desires, it must require what Kant calls mere conformity to law. That is not true. Such a principle might require us either to try to achieve some end, or to act in certain ways. Kant’s argument again overlooks all teleological or deontological principles. Why did Kant assume that, if some principle does not appeal to our desires, it must require mere conformity to law? He may again have been misled by his failure to distinguish between his different uses of the words ‘material’ and ‘formal’. The will, Kant writes: must be determined by the formal principle of volition if it does an action from duty, since every material principle has been withdrawn from it … Kant here assumes that, if some principle is not normatively material in sense 1, because it does not appeal to our desires, this principle must be normatively formal in sense 3, imposing only a formal constraint on what we will. That is not true. Though such a principle must be normatively formal in sense 1, it might not be normatively formal in either sense 3, or sense 2. Kant’s use of the word ‘formal’ blurs these distinctions.

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There is another way in which Kant may have gone astray. In the same passage, Kant writes: the purposes we may have for our actions, and their effects as ends and incentives of the will, can give no actions unconditional and moral worth … In what, then, can this worth lie … ? It can lie nowhere else than in the principle of the will without regard for the ends that can be brought about by such an action. (G 399?400) In the ?rst sentence here, Kant’s use of the word ‘ends’ must refer to our subjective or desire-based ends. An act’s moral worth lies, Kant claims, not in the agent’s subjective end, but in the agent’s motive, which is to do his duty. But when Kant later writes ‘without regard for the ends that can be brought about by such an action’, he seems to shift, without noticing this, to the wider use of ‘end’ that would cover all possible ends-to-be-produced, including ends that are objective, or categorically required. This may be why Kant mistakenly concludes that the moral law must be formal in the sense of having no ‘regard for the ends’ that our acts might bring about. Groundwork 1 suggests another argument. Kant writes: … an action from duty is to put aside entirely the in?uence of inclination and with it every object of the will; hence there is left for the will nothing that could determine it except objectively the law and subjectively pure respect for this practical law … But what kind of law can that be, the representation of which must determine the will, even without regard for the effect expected from it … ? Since I have deprived the will of every impulse that could arise for it from obeying some law, nothing is left but the conformity of actions as such with universal law, which alone is to serve the will as its principle, that is: I ought never to act except in such a way that I could also will that my maxim should become a universal law. (G 400?2) Kant here argues:

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Therefore (4) This requirement is the only moral law. Kant’s ?rst premise here is true. Humeans might claim that, when our motive in acting is to do our duty, we must be moved by a desire to do our duty. But even if that were true, we would not be being moved by a desire for our act’s effects. Premise (2), however, is false. Return to Kant’s philanthropist who promotes the happiness of others, not because he wants to make them happy, but because he believes this act to be his duty. Kant’s argument implies that, since this person is not moved by a desire for his act’s effects, he must be acting on some principle which is purely formal, requiring only that our acts conform with universal law. That is not so. This person might be acting on a principle that requires us to promote the happiness of others. Premise (3), as we have seen, is also false, since a principle could be purely formal without requiring that we act on universalizable maxims. Though premise (3) might be repaired, nothing can be done with premise (2). There is no hope of showing that, when our motive is to do our duty, we must be acting on some principle which is purely formal. Why did Kant make this assumption? When our motive is to do our duty, this motive is purely formal in the sense that it does not involve, or abstracts from, the content of our duty. This feature of our motive Kant may have mistakenly transferred to the principle on which we act. Jerome Schneewind writes that, on Kant’s view, a moral agent acts on principle, and that

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the only principle available, because she is not moved by the content of her action, must be formal. The agent of good will must therefore be moved by the bare lawfulness of the act. Though such a person may be, in one sense, moved by ‘the bare lawfulness’ of her act, this sense is only that this person’s motive is to do her duty. That leaves it open what this person believes her duty to be. She may be acting on some principle which is not formal, since it requires her either to try to achieve some end, or to act in some way for its own sake. Kant may also be again misled by overlooking his distinctions between different kinds of end. In another summary of Kant’s argument, Nelson Potter writes: All action to which we are determined by some subjective end … is action whose maxim is without ‘moral content’ … So the maxim of action from duty must be a maxim which is determined by no such end … The only other thing which could determine us to action would be some ‘formal’ principle, i.e. a principle containing no reference to any end. As Potter fails to note, there is here a fatal slide from the claim that acts from duty must not be determined by subjective ends, to the claim that such acts must be determined by a principle which does not refer to any end, not even an objectively required end-to-be-produced. Schneewind similarly writes: Given Kant’s claim that means-ends necessity is inadequate for morality, it is plain that he must think there is another law of rational willing, and so another kind of ‘ought’ or ‘imperative’. The kind of ‘ought’ that does not depend on the agent’s ends arises from the moral law … [This law] Kant holds, can only be the form of lawfulness itself, because nothing else is left once all content has been rejected. There is here the same unnoticed slide. If some law does not depend on the agent’s ends, it may still have content, requiring more than the

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mere form of lawfulness. And this law might require the agent to try to achieve some end. Mary Gregor similarly writes: [if] principles of reason based on a desire for some end are all conditioned principles, the unconditioned necessity of duty implies that the principle prescribing duty must be a merely formal principle … it follows … that this principle says nothing at all about our ends. It neither commands nor forbids the adoption of any end, but merely sets a limiting condition on our actions … These claims assume that, if some principle does not appeal to our desire for some subjective end, it cannot say anything about our ends, and can neither command nor forbid the adoption of any end. That does not follow. It may be suggested that, in making these remarks, I have misinterpreted Kant. When Kant claims that moral principles must be purely formal, he may not mean that these principles cannot be material in the sense of requiring us to try to achieve certain ends. Kant may be making some other point. Consider, for example, these remarks in the Second Critique: a free will must ?nd a determining ground in the law but independently of the matter of the law. But besides the matter of the law, nothing further is contained in it than the lawgiving form. (CPR 29) Kant may seem here to assume that any practical law has matter, which is what this law tells us to try to achieve. His point may seem to be only that, though any law is, in this sense, ‘material’, our motive in following this law?or the determining ground of our will?should be provided not by this law’s matter, but by the fact that it has the form of a moral law. And this may seem to be Kant’s point, in the Groundwork, when he discusses his unsympathetic philanthropist. When Kant claims that, to act out of duty, we must be moved by a principle’s law-giving form, he may mean only that we must be moved by our belief that our act is a duty. That could be true of Kant’s philanthropist even if this person is

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acting on a principle which has ‘matter’ in the sense that it requires him to promote the happiness of others. This suggested reading seems to me doubtful. Nor could this suggestion repair Kant’s arguments. After discussing this philanthropist, Kant takes his argument to show that his Formal Principle is the only moral law. That could not be shown if Kant meant only that this man is moved by a belief that his act is a duty. Consider next another passage in the Second Critique: The matter of a practical principle is the object of the will. This is either the determining ground of the will or it is not. If it is the determining ground of the will, then the rule of the will is subject to an empirical condition … and so is not a practical law. Now if we abstract from the law everything material, that is, every object of the will (as its determining ground), all that remains is the mere form of giving universal law. Therefore, either a rational being cannot think of his … maxims, as being at the same time universal laws, or he must assume that their mere form, by which they are ?t for a giving of universal law, of itself and alone makes them practical laws. (CPR 27) When Kant refers here to ‘the mere form of giving universal law’, he cannot mean ‘the mere form of a moral law’. His point cannot be that, if principles have the form of a moral law, that alone makes them practical laws. Kant takes this argument to show that, since we must ‘abstract from the law everything material’, we ought to act only on maxims that we could will to be universal, because only these maxims ‘are ?t for a giving of universal law’. Kant must be referring here to his Formula of Universal Law. In the paragraph just quoted, Kant comes close to seeing that his argument is invalid. The Second Critique was the fastest written of Kant’s major works, and this paragraph shows the speed with which Kant wrote. What Kant calls the ‘matter’ of a principle, or the ‘object of the will’, is the object or aim which this principle tells us to try to achieve. This object would be the will’s ‘determining ground’ if we were moved to act upon this principle by a desire to achieve this object.

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After remarking that this object either is or is not the will’s determining ground, Kant claims that, if we abstract from the law every object of the will which is its determining ground, we are left only with the mere form of giving universal law. That is not so, as Kant’s earlier remark implies. We may be left with some object of the will which is not the will’s determining ground. One such object might be the happiness of others. We might be moved to try to achieve this object, not because we want to make others happy, but out of duty and our belief that the happiness of others is a categorically required end. We would not then be acting on a principle that was purely formal. So Kant’s argument again fails to support his conclusion. Consider next Kant’s summary of his view: The sole principle of morality consists in independence from all matter of the law (i.e. a desired object) and in the accompanying determination of choice by the mere form of giving universal law which a maxim must be capable of having. (CPR 33) Kant here forgets the difference between his two uses of the phrase ‘the matter of the law’. On Kant’s narrower use, this ‘matter’ is a desired object. On Kant’s wider use, a law’s ‘matter’ is whatever this law tells us to try to achieve, which might be some categorically required end. Kant assumes that, if some moral principle does not have ‘matter’ in his narrower sense, it cannot have ‘matter’ in this wider sense. This leads him to conclude that, if some moral principle does not appeal to a desired object, it must require the mere form of giving universal law. That is not true. As before, Kant overlooks all substantive categorical principles.

3 Near the end of Groundwork 2, Kant reviews all possible alternatives to his Formula of Universal Law. Some of these principles Kant calls ‘empirical’ in the sense that they appeal to our desires. Other principles he calls ‘rational’ in the sense that they appeal to ‘grounds of morality’

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which are ‘based on reason’. Kant gives, as one example, a principle that requires us to promote our own perfection. Kant defends his Formula by arguing against all other principles. The concept of perfection, he objects, is too vague. But Kant could not claim that all principles which are ‘based on reason’ must be too vague; so he must give some other argument against these other principles. At this critical point, Kant writes: I believe that I may be excused from a lengthy refutation of all these doctrines. That is so easy … that it would be merely super?uous labour. (G 443) Kant’s ‘refutation’ of all other principles takes only one paragraph. This begins: Whenever an object of the will has to be laid down as the basis for prescribing the rule that determines the will, there the rule is none other than heteronomy; the imperative is conditional, namely: if or because one wills this object, one ought to act in such or such a way; hence it can never command morally, that is, categorically. Whether the object determines the will by means of inclination, as with the principle of one’s own happiness, or by means of reason directed to objects of our possible volition in general, as with the principle of perfection, the will never determines itself directly, just by the representation of an action, but only by means of an incentive that the anticipated effect of the action has upon the will … (G 444) Kant here claims that all other principles can provide only hypothetical imperatives. To defend this claim, Kant ?rst repeats his distinction between the two ways in which we can be moved to act on these other principles. When we are moved to act on these principles, Kant writes, our will may be determined either by means of inclination, as in the case of empirical principles, ‘or by means of reason’, as in the case of rational principles. But Kant then forgets this second possibility, since he goes on to claim that, in both these cases, our will would be determined by means of an ‘incentive’ which the anticipated effect of our act had upon

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our will. Kant distinguished earlier between incentives, which he de?nes as the ‘subjective grounds of desire’, and motives, which he de?nes as ‘objective ends’ or ‘grounds of volition’, which are ‘given by reason alone’ to all rational beings. So, when Kant claims that it can be only some incentive which moves us to act on these rational principles, he is inconsistently denying that, as he has just conceded, we could be moved to act on such principles not by an inclination but by reason. Kant’s argument requires him to deny that, when acting on such a rational principle, we could be moved by reason. To justify this denial, Kant might claim that reason does not give us any objective ends-tobe-produced. But though Kant’s arguments in the Groundwork assume that reason gives us no such ends, Kant says nothing that supports this claim. And if some rational principle requires us to try to achieve such an objective end, we could act upon this principle in the same reasonprovided way in which we can act upon Kant’s Formula of Universal Law. The Second Critique contains another version of Kant’s ‘refutation’. Kant writes: If we now compare our formal supreme principle of pure practical reason … with all previous material principles of morality, we can set forth all the rest, as such, in a table in which all possible cases are actually exhausted, except the one formal principle … Practical Material Determining Grounds in the principle of morality: External Education (Montaigne) The civil constitution (Mandeville) External Perfection (Wolff and the Stoics)

Subjective Internal Physical feeling (Epicurus) Moral feeling (Hutcheson) Objective Internal The will of God (Crusius and others)

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Those in the ?rst group are without exception empirical and obviously not at all quali?ed for the universal principle of morality. But those in the second group are based on reason… . the concept of perfection in the practical sense is the ?tness or adequacy of a thing for all sorts of ends. This perfection, as a characteristic of the human being … is nothing other than talent and … skill. The supreme perfection in substance, that is, God … is the adequacy of this being to all ends in general. Now, if ends must ?rst be given to us, in relation to which alone the concept of perfection … can be the determining ground of the will; and if an end as an object which must precede the determination of the will … is always empirical; then it can serve as the Epicurean principle of the doctrine of happiness but never as the pure rational principle of the doctrine of morals … so too, talents and their development … or the will of God if agreement with it is taken as the object of the will without an antecedent practical principle independent of this idea, can become motives of the will only by means of the happiness we expect from them; from this it follows, first, that all the principles exhibited here are material; second, that they include all possible material principles; and, ?nally … that since material principles are quite un?t to be the supreme moral law … the formal practical principle of pure reason … is the sole principle that can possibly be ?t for categorical imperatives … (CPR 39?41) In this passage, Kant argues: There are only two material principles which might be objective and based on reason: the principles of perfection and of obedience to God’s will. The concept of perfection is the concept of something’s ?tness or adequacy as a means of achieving ends. God is supremely perfect because he is an adequate means to every end.

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Appendix F: Kant’s Arguments for his Formula Since the idea of perfection cannot move us to act unless we have some end to which this perfection is a means, and since all such ends are empirical, or given by our desires, the principle of perfection cannot be moral, but can serve only as the Epicurean principle of pursuing our own happiness. The principle of obeying God’s will also cannot move us to act except through the expectation of our own happiness.

Therefore These principles are material, and are the only possible material principles. Material principles cannot be moral laws. Therefore Kant’s Formula is the only moral law. Kant’s premises are all false; and even if they were true, Kant’s conclusions would not follow. Kant writes, rather charmingly, that his table ‘proves visually’ that there are no other possible objective material principles; but ‘possible’ does not mean ‘shown in Kant’s table’. Perfection is not all instrumental. God’s perfection could not be that of an ideal Swiss army knife, or all-purpose tool. It is not true that all of our ends are given by our desires, since we can have objective ends that are given to us by reason. If we act on some principle either of perfection or of obedience to God’s will, our motive can be something other than a desire for our own happiness. Even if our motive would have to be this desire, that would not show that these are the only possible material principles. It is not true that material principles cannot be moral laws. And even if that were true, Kant’s Formula is not the only formal principle, so this argument could not show that Kant’s Formula is the only moral law. Kant gives some other arguments for his Formula of Universal Law. These other arguments, I believe, also fail. But that does not matter. Moral principles can be justi?ed by their intrinsic plausibility,

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and by their ability to support and guide our other moral beliefs. I have argued that, with some revisions, Kant’s Formula provides a remarkably successful version of Contractualism, which Kant could defensibly, though not undeniably, claim to be the supreme moral law.

APPENDIX G

Kant’s Claims about the Good The Latin language has a defect, Kant writes, since it uses the words bonum and malum in two senses, which German distinguishes. Kant’s claims can also be applied to the English words good and bad. When widened in this way, Kant’s claims would be these. Where Latin has to use the same word bonum, and English has to use the same word good, German distinguishes between das Gute and das Wohl. And, where Latin has to use malum, and English has to use bad, ¨ German distinguishes between das B¨ose and das Ubel (or das Weh). (CPR 59?60) These claims are mistaken. Latin and English have words whose meaning is similar to ‘das Wohl’. Two such words in English are ‘well-being’ and ‘happiness’. And Latin and English have words whose ¨ meaning is similar to ‘das Ubel’ and ‘das Weh’. Three such words in English are ‘ill-being’, ‘suffering’, and ‘woe’. The language which is impoverished is not, as Kant claims, Latin, or English, but Kant’s own version of German. Kant uses ‘Gute’ and ‘B¨ose’ to mean only ‘morally good’ and ‘morally bad’. In English and other versions of German, we can express the thought that, if someone suffers, that is both bad for this person, and a bad event. Kant’s version of German cannot express such thoughts, and Kant seems not to understand them. Consider, for example, Kant’s remarks about the Latin sentence: Nihil appetimus nisi sub ratione boni, nihil aversamur nisi sub ratione mali, or, in English, We want nothing except what we believe to be good, and we try to avoid nothing except what we believe to be bad.

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Kant complains that, given the ambiguity of the words ‘boni’ and ‘mali’, this ‘scholastic formula’ is ‘detrimental to philosophy’. This formula, Kant writes, is at least very doubtful if it is translated as: we desire nothing except with a view to our well-being or woe, whereas if it is translated: we will nothing under the direction of reason except insofar as we hold it to be morally good or bad, it is indubitably certain and at the same time quite clearly expressed. Kant’s translations are both incorrect. This ‘scholastic formula’ does not use ‘boni’ and ‘mali’ to mean ‘well-being’ and ‘woe’. Nor does it use these words to mean only ‘morally good’ and ‘morally bad’. This formula rightly assumes that we want many things because we believe them to be either morally or non-morally good. On Kant’s second proposed translation, this formula would not be, as Kant claims, ‘indubitably certain’. It would be seriously mistaken. That is well shown by the case of woe, or suffering. On Kant’s proposal, for us to have a reason to want ourselves not to suffer?or, in his words, for us to ‘will’ this ‘under the direction of reason’?our suffering would have to be morally bad. Since suffering is not morally bad, Kant’s view implies that we have no such reason. It might be suggested that I am misreading Kant, since Kant may use ‘das B¨ose’ in a way that covers non-moral badness. The word ‘evil’ is so used in many discussions of the problem of evil, since most theologians rightly regard suffering as part of this problem. My reading, however, seems to be correct. Kant continues: … good or evil is, strictly speaking, applied to actions, not to the person’s state of feeling … Thus one may always laugh at the Stoic who in the most intense pains of gout cried out, ‘Pain, however you torment me, I will still never admit that

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As Irwin notes, Kant misunderstands this Stoic claim. This Stoic didn’t mean that the pains of gout aren’t morally bad, in the sense that applies only to agents and to acts. That claim would be trivial, since no one believes that pain is in that sense bad. The Stoic was making the controversial claim that his pain isn’t even non-morally bad for him, or a bad state to be in. Consider next Kant’s remarks about Hedonism. Kant writes that, since good and evil must always be appraised by reason and hence through concepts, which can be universally communicated, not through mere feeling … a philosopher who believed that he had to put a feeling of pleasure at the basis of his practical appraisal would have to call that good which is a means to the agreeable, and evil that which is a cause of disagreeableness and of pain; for appraisal of the relation of means to ends certainly belongs to reason. (CPR 58) Kant’s thinking here is close to Hume’s. Kant assumes that, since pleasure and pain are feelings, they cannot be appraised by reason, and judged to be good or bad. The most that hedonists could claim, he says, is that things are good if they produce pleasure, and bad if they produce pain, since reason is capable of judging that one thing produces another. Kant understates the implications of this view. If pleasure cannot be in itself good, hedonists could not call something good because it produces pleasure. For something to be good because of its effects, its effects must be good. Hedonists could at most claim that some things are good, because they are effective, as a means of producing pleasure. But Hedonists would have to admit that other things are in the same sense good as a means of producing pain. So, on Kant’s view, no form of normative Hedonism would make sense.

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Why does Kant believe that, since pleasure and pain are feelings, they cannot be appraised by reason? Kant writes: the usage of language … demands that good and evil be judged by reason and thus through concepts which alone can be universally communicated and not by mere sensation which is limited to individual subjects and their susceptibility. (CPR 58) This remark suggests that we could not rationally judge that it was bad to be in pain, since such a judgment would have to be made with public and communicable concepts, and not with a private sensation. But when we judge that pain is bad, that judgment is not a sensation. It is a judgment about a sensation, made with the communicable concepts pain and bad. Nor could Kant be assuming that, since the word ‘pain’ refers to a private sensation, this word has no communicable meaning. Kant does not deny that we can refer to pain. Kant’s point must be that the concept bad cannot be applied to a sensation. As he explicitly claims, good or evil is, strictly speaking, applied to actions, not to the person’s state of feeling. (CPR 60) Kant seems to make this claim because he either lacks, or rejects, the concept of something’s being in itself non-morally good or bad. If we believe that events or states can be non-morally bad, we have no reason to deny that it can be bad to be in pain. Nothing is more clearly bad, in this non-moral sense, than being in great agony. Kant’s views about what is good or bad may be in part explained by the fact that he makes little use of the concept of a normative reason. Kant’s main normative concepts are required, permitted, and forbidden. These concepts cannot express the thought that some things are in themselves good, or worth achieving, and others are in themselves bad, or worth avoiding or preventing. Kant says that he uses ‘good’ to mean ‘practically necessary’. That is not what ‘good’ means. Something can be good, even though some available alternative would be even better. To understand this kind of goodness, or badness, we must be able to have the thought that certain properties or facts give us reasons, by counting

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in favour of our having some desire, or acting in some way. Pain is bad in the sense that its nature gives us reasons to want and to try to avoid being in pain. Kant may, at certain points, have such thoughts. Thus he writes: What we are to call good must be an object of the faculty of desire in the judgment of every reasonable human being, and evil an object of aversion in the eyes of everyone. (CPR 61) And he writes: Someone who submits to a surgical operation feels it no doubt as an ill, but through reason he and everyone else pronounces it good. (CPR 61) Kant is unlikely to mean that such an operation is morally good, and he may not mean only that this operation is, like a murderer’s poison, good as a means. Kant may mean that this operation has effects which are good in the non-moral sense, since it saves this person’s life. And in writing ‘feels it … as an ill, but through reason … pronounces it good’, Kant seems to suggest that, in being an ill, this pain is bad. But despite such passages, Kant often claims that ‘good’ or ‘evil’ cannot be applied to states of feeling, and that well-being and woe cannot be in themselves good or bad. Thus he writes: The end itself, the enjoyment that we seek, is … not a good but a state of well-being, not a concept of reason but an empirical concept of an object of feeling … (CPR 62) This feature of Kant’s view is well shown by his claims about the principle of prudence. Kant often calls this principle a merely hypothetical imperative, assuming that it applies to us only because we want to promote our own future happiness. In its only important form, the principle of prudence is not hypothetical. According to this principle, even if we don’t care about some act’s likely effects on our future happiness?as some young smokers don’t care about the cancer they may cause themselves to have in forty years?we have reasons to care, and we ought rationally to care. Dying early from lung cancer

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is not morally bad. But such deaths, and the suffering they cause, are in themselves bad for people, and impersonally bad. In much of his writing, as I have said, Kant seems not to have recognized these kinds of badness, and our non-moral reasons to care about them, and to prevent them if we can. This creates a huge gap in Kant’s view. Practical reason, Kant suggests, makes only two kinds of claim. At one extreme, there is moral duty; at the other, instrumental rationality. There is little but a wasteland in between. If we are taught such a view, but we then cease to believe in moral duty, we shall believe only in instrumental rationality. That is the only kind of rationality in which many people now believe.

APPENDIX H

Autonomy and Categorical Imperatives The moral law, Kant claims, is a categorical imperative. We are subject to this law, Kant also claims, only if we give it to ourselves. If these claims are taken seriously, they cannot both be true. Kant writes: If we look back upon all previous efforts that have ever been made to discover the principle of morality, we need not wonder why all of them had to fail. It was seen that the human being is bound to laws by his duty; but it never occurred to them that he is subject only to laws given by himself but still universal and that he is obligated only to act in conformity with his own will … I shall call this basic principle the principle of the autonomy of the will in contrast with every other, which I accordingly count as heteronomy … (G 432?2) According to this ‘basic principle’, which we can call Kant’s Autonomy Thesis: We are subject only to principles that we give to ourselves as laws, and obligated only to act in conformity with our own will. There are two other relevant possibilities. According to Nihilists, we are not subject to any principles, even if we give them to ourselves as laws. We can ignore that possibility here. According to what we can call The Heteronomy Thesis: We are subject to certain principles, and obligated to act in conformity with them, whether or not we give these principles to ourselves as laws, and whatever we will.

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Though Kant does not explicitly refer to this thesis, he says that he will ‘count as heteronomy’ all principles which are not compatible with his Autonomy Thesis, and the Heteronomy Thesis is what all such other principles have in common. We are subject to some principle when this principle applies to us. So we can call principles autonomous when they apply to us only if we give them to ourselves as laws, and heteronomous when they apply to us whether or not we give them to ourselves as laws. I shall return to the question of what Kant means by our giving ourselves some principle as a law. As we have seen, Kant draws another, partly similar distinction. Principles are hypothetical imperatives if they require us to act in some way as a means of achieving some end whose achievement we have willed, and categorical imperatives if they require us to act in some way whether or not we have willed the achievement of some end. Hypothetical imperatives, Kant also writes, say that I ought to do something because I will something else. The moral and therefore categorical imperative in contrast says: I ought to do something even though I have not willed anything else. (G 441) Kant’s second sentence is ambiguous. He may mean that a categorical imperative applies to us unconditionally, whatever we have willed. But this sentence could be read more literally. Kant may instead mean

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that, though a categorical imperative applies to us only because we have willed that to be so, this imperative applies to us even if we have not also willed something else. On this reading, unlike hypothetical imperatives, a categorical imperative applies to us even if we have not also willed the achievement of some end. With these distinctions we can describe four kinds of imperative. Some imperative may apply to us either only if and because we have willed that to be so

or

whether or not we have willed that to be so

and either only if and because we have willed the achievement of some end

strongly hypothetical

weakly hypothetical

weakly categorical

strongly categorical

or whether or not we have willed the achievement of some end

According to Kant’s Autonomy Thesis, we are subject only to principles or imperatives that we give to ourselves as laws, and obligated only to act in conformity with our own will. This thesis implies that (1) hypothetical imperatives are strongly hypothetical, since these imperatives apply to us only if and because we have both willed them to apply to us, and willed the achievement of some end, and that (2) categorical imperatives are weakly categorical, since these imperatives apply to us only if and because we have willed that to be so.

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According to the Heteronomy Thesis, we are subject to certain principles or imperatives, and obligated to act in conformity with them, whether or not we give these imperatives to ourselves as laws. This thesis implies that (3) hypothetical imperatives are weakly hypothetical, since these imperatives apply to us only if and because we have willed the achievement of some end, and that (4) categorical imperatives are strongly categorical, since these imperatives apply to us unconditionally, whatever we have willed. We can now return to Kant’s claim that the moral law is a categorical imperative. If Kant means that the moral law is a strongly categorical imperative, Kant must reject his Autonomy Thesis. As we have just seen, only heteronomous imperatives can be strongly categorical. Kant may instead mean that the moral law is a weakly categorical imperative. But as I shall now argue, we ought to reject this claim, because we ought to reject Kant’s Autonomy Thesis. Kant writes: reason commands what ought to happen (G 408). reason alone … gives the law … (G 457) we stand under a discipline of reason, and in all our maxims we must not forget our subjection to it, or … detract anything from the authority of the law … (CPR 82) Such remarks con?ict with Kant’s Autonomy Thesis. If reason alone gives the law, and we are subject to reason’s laws, we are not subject only to laws that we give to ourselves. Kant saw no con?ict here. He assumes that, just as each of us has a will, each of us has, or is, a reason. He writes, for example, ‘one cannot possibly think of a reason that would consciously receive direction

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from any other quarter with respect to its judgments …’ (G 448). Kant therefore claims The law by virtue of which I regard myself under obligation … proceeds from my own pure practical reason, and in being constrained by my own reason, I am also the one constraining myself. (MM 418) Such claims, I believe, are indefensible. Consider ?rst the laws that govern theoretical reasoning. Such reasoning, it is sometimes said, should obey the laws of logic. But we need a distinction here. Consider, for example, two logical laws: Non-Contradiction: No proposition can be both true and false. Modus Ponens: If it is true both that P and that If P, then Q, it must be true that Q. These laws are not normative, nor could our reasoning obey these laws. What we can obey are two closely related epistemic principles or laws. According to the Non-Contradiction Requirement: We ought not to have contradictory beliefs. According to the Modus Ponens Requirement: We ought not to believe both that P, and that If P, then Q, without also believing Q. Kant claims that, since reason is subject only to laws which it gives to itself, reason must regard itself as the source or author of such requirements. We can accept these metaphorical claims if Kant means only that these laws are rational requirements. According to Kant’s Autonomy Thesis, I am subject to these requirements because I give them to myself as laws. I, Derek Par?t, give myself the law that requires me to avoid contradictory beliefs. Only a madman could think that. Nor would it help to say that it is my reason which requires that I avoid such beliefs. Kant’s phrase ‘my reason’ could refer only to my rationality. My epistemic rationality is my ability to be aware

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of epistemic reasons and requirements, and to respond to both of these in my beliefs. There is no sense in which these abilities could be the source or author of these reasons and requirements. Nor could I or my rationality be the source or author of practical imperatives, such as the moral law. It may be objected that, in making these remarks, I am not discussing Kant in his own terms. For example, Kant writes: to think of a human being who is accused by his conscience as one and the same person as the judge is … absurd … a human being’s conscience will, accordingly, have to think of someone other than himself (i.e. other than the human being as such) as the judge of his actions … This requires clari?cation, if reason is not to fall into self-contradiction. I, the prosecutor and yet the accused as well, am the same human being (numerically identical). But the human being as the subject of the moral lawgiving which proceeds from the concept of freedom and in which he is subject to a law that he gives himself (homo noumenon) is to be regarded as another (of a different kind) from the human being as a sensorily affected being endowed with reason, though only in a practical respect … (MM 438 and note) In this passage, Kant claims that the human being both is and is not one and the same person or human being as his inner judge and prosecutor, since as a sensorily affected being endowed with reason he both is the same as?but ought also to be regarded (though only practically) as being not the same as?his noumenal self. A philosopher who could make such claims might seem likely to dismiss as quibbling my claim that I am not pure reason. Kant, I believe, would not have responded in this way. Kant was rightly proud of having created what he called ‘the critical philosophy’; and such philosophy, he writes, ‘must proceed as precisely … as any geometer in his work’ (CPR 92). Given Kant’s great originality, and the dif?culty of many of the questions which he tried to answer, it is not surprising that he often failed to be precise. And the answers to some of Kant’s questions could not be precise. But to take Kant seriously in

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his own critical terms, we should try to state his ideas, and to assess his arguments, as clearly and carefully as we can. Kant would not have believed that I, Derek Par?t, am pure reason. So, if pure reason gives me certain laws, I do not give myself these laws. And in being subject to these laws, I am not subject only to laws which I give myself. These truths, which Kant would have accepted, contradict Kant’s Autonomy Thesis. Some writers suggest that, when Kant talks of our giving ourselves some law, he uses ‘give’ in a different sense from that in which he claims that ‘reason alone … gives the law’. Kant could then without contradiction claim that we give ourselves the laws that, in a different sense, reason alone gives. On the most plausible suggestion of this kind, when Kant talks of our giving ourselves some law, he means only that we accept this law, believing it to be a rational or moral requirement. Hill, for example, writes: The sense in which the principles of autonomy are ‘imposed on oneself by oneself’ is puzzling, but at least it is clear that Kant did not regard this as an arbitrary, optional choice but as a commitment that clear thinking reveals, implicit in all efforts to will rationally, the way one may think that commitment to basic principles of logic is implicit in all efforts to think and understand … a will with autonomy accepts for itself rational constraints independently of any desires and other ‘alien’ in?uences. Korsgaard similarly writes: you might pay your taxes … because you think everyone should pay their share, or because you think that people should obey laws made by popular legislation. These would be, in an ordinary sense, examples of autonomy?of giving the law to yourself because of some commitment to it or belief in it as a law. On this reading, Kant’s Autonomy Thesis could be restated as The Endorsement Thesis: We are subject only to principles that we ourselves accept.

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According to this version of Kant’s view, there are some principles which reason gives to us as laws, in the sense that these principles are rational requirements. But we are subject to such principles, and obligated to think and act in conformity with them, only if and because we accept these principles, or believe them to be true. This version of the Autonomy Thesis, though more modest, has striking implications. On this view, when applied to Korsgaard’s example, people ought to pay their share only if they themselves believe that they ought to pay. If we don’t accept Kant’s Formula of Universal Law, this formula does not apply to us. And if we accepted no moral principles, we would have no obligations, nor could any of our acts be wrong. These would be unacceptable conclusions. The moral law, Kant claims, is a categorical imperative. I suggested earlier that, if Kant keeps his Autonomy Thesis, he might claim that the moral law is at least weakly categorical. We are subject to Kant’s Formula, he might say, if we accept this formula. But Kant’s Formula would not then be a categorical imperative. Moral laws, Kant claims, apply to all rational beings. If Kant’s Formula did not apply to those rational beings who don’t accept this formula, this formula could not be a moral law. Kant might reply that everyone accepts his formula. This formula, Kant claims, ‘is the sole law which the will of every rational being imposes on itself’ (G 444). Since this claim cannot be an empirical generalization, Kant must mean that all rational beings necessarily accept this formula. In what sense might it be necessary that everyone accepts Kant’s Formula of Universal Law? At one point, Kant asks But why, then, ought I to subject myself to this principle? (G 449) Kant then writes that, unless we can answer this question, we shall not have shown the moral law’s ‘validity and the practical necessity of subjecting oneself to it’. These remarks suggest that, for Kant’s Formula to be valid, it must be normatively necessary that we accept this formula. Given Kant’s Autonomy Thesis, this suggestion raises two problems. First, even if we ought to accept Kant’s Formula, that does not imply

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that we do accept this formula. And on both readings of the Autonomy Thesis, if we don’t accept Kant’s Formula, it does not apply to us. Second, if we don’t accept Kant’s Formula, Kant’s Autonomy Thesis undermines the claim that we ought to accept, or are required to accept, this formula. According to Kant’s Thesis, we are required to accept Kant’s Formula only if we ourselves accept this requirement. If we do not accept this requirement, it does not apply to us. Nor would it help to claim that we are required to accept this requirement to accept Kant’s Formula. That could not be true unless we accept this second requirement, and so on for ever. There is an in?nite regress here, of the kind that is vicious rather than benign. Given these problems, Kant might appeal instead to some kind of non-normative necessity. Return to the principles that govern theoretical reasoning, such as the Non-Contradiction and Modus Ponens Requirements. On Kant’s Autonomy Thesis, if we did not accept these requirements, they would not apply to us. But Kant might reject this counterfactual, on the ground that what it requires us to suppose is too deeply impossible. As Hill suggests and Kant might claim, all thinkers necessarily accept these requirements, since their acceptance is necessarily involved in, or in part constitutes, thinking. If we didn’t believe that we ought not to believe both P and not P, we couldn’t even count as believing P. In believing something, we are committed to disbelieving the negation of our belief. Similarly, if we really believed both P and If P, then Q, we couldn’t fail to believe that we ought either to believe Q, or give up one of these other beliefs. Kant might make similar claims about the principles that govern instrumental rationality, such as the general Hypothetical Imperative that requires us not to will some end without at the same time willing what we believe to be the necessary means to this end. If we didn’t accept this requirement, Korsgaard suggests, we couldn’t even count as willing some end. The acceptance of such principles may be necessarily involved in being an agent. This defence of Kant’s Autonomy Thesis would, however, undermine this thesis. According to the rival, Heteronomy Thesis, we are subject to various requirements whether or not we accept these requirements. To use the same examples, we are rationally required to avoid contradictory

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beliefs, and to take the necessary and acceptable means to our ends, and these requirements do not depend on our acceptance of them. For Kant’s view to be different from the Heteronomy Thesis, and to be an assertion of autonomy, Kant must claim that these requirements, or their normativity, in some sense derive from or depend on us. He might claim that, if we did not accept these requirements, they would not apply to us. But as I have said, that would be very implausible. On the suggestion we are now considering, we can ignore this possibility, since the acceptance of these requirements is necessarily involved in our even being thinkers and agents. If that is true, however, there is no sense in which these requirements, or their normativity, could be claimed to derive from us. There is another problem. These claims could not be applied to Kant’s Formula of Universal Law. There is no hope of showing that, if we didn’t believe that we ought to act only on universalizable maxims, we couldn’t be agents, since we would be unable to act. There are many successful agents who have considered and rejected Kant’s Formula. Kant might claim that, even if we reject his formula, and believe it to be false, there is some other sense in which we do accept this formula, and give it to ourselves as a law. But when applied to us as human beings, this claim would either be false, or would have to be given some sense which made it trivial. Kant might claim instead that we all necessarily accept his formula as noumenal beings in a timeless world. But such a claim would be open to decisive objections. Since Kant cannot defensibly claim that everyone does accept his Formula of Universal Law, Kant’s claim could at most be that, if we were fully rational, we would all accept this formula. According to Kant’s Autonomy Thesis, if we do not accept Kant’s Formula, it does not apply to us. To defend his view that his formula applies to all rational beings, Kant must revise his thesis. And as I have just argued, Kant’s claim could at most be that we are subject only to those principles or requirements that we either do accept, or would accept if we were fully rational. We would be subject to these requirements even if, because we were not fully rational, we did not accept them.

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Kant’s Thesis, so revised, would cease to make any distinctive claim. On the rival, Heteronomy Thesis, we are rationally or morally required to have certain beliefs and to act in certain ways, and these requirements apply to us whether or not we accept them. Heteronomists could agree that, if we were fully rational, we would accept these requirements. If we did not accept these requirements, we would be failing to respond to our reasons for accepting them. So the difference between these views would disappear. There is, I conclude, no defensible and non-trivial version of Kant’s Autonomy Thesis. Kant claims, I believe rightly, that there are some categorical imperatives. We are often rationally or morally required to have certain beliefs, or to act in certain ways. And such requirements are unconditional, since they apply to us whether or not we accept them, and whatever we want or will. So we should reject what Kant calls his ‘basic principle’, according to which morality is grounded in the autonomy of the will. In arguing against Kant’s Autonomy Thesis, I have ignored one complication. In many passages, including some from which I have quoted, Kant uses the word ‘heteronomy’ in a different sense. When Kant talks of self-legislation, he means in part self-determination. Reason gives a law, Kant writes, when it determines the will (CPR 31). Since Kant often identi?es reason with the will, he often assumes that, when reason determines the will, the will is determining itself. Kant also assumes that, since we are rational beings, it is our reason, or our will, which is our authentic self, or what is most truly us. So Kant believes that we are autonomous, or self-determining, when our acts are motivated by our reason, or our will. This can be called motivational autonomy. There is heteronomy in this motivational sense when our acts are motivated by something other than our reason, or our will. That is true, Kant claims, when our acts are motivated merely by some desire. Kant claims that, since our desires are non-voluntary products of our natural constitution, they are alien to our true self. In his words, when we merely try to ful?l some desire, the will does not give the law to itself, but an alien impulse gives it by means of the subject’s nature (G 444).

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When our acts are motivated merely by our desires, rather than by our reason or our will, we can call these acts motivationally heteronomous. Kant’s claims about motivational heteronomy contain, I believe, some important truths. But this other use of ‘heteronomy’ can cause confusion. For example, Kant writes: if the will does not give itself the law … heteronomy always results … only hypothetical imperatives become possible (G 441). Our will does not give itself some law when our will is subject to some law that is not given by itself. That is so when we are subject to some valid imperative which is strongly categorical. When we act on some moral imperative, Kant claims, our reason can by itself motivate us without the help of any desire, so our act is motivationally autonomous. In the sense in which this claim is true, it would apply to our acting on imperatives which are strongly categorical, and in that sense normatively heteronomous. When we act on such imperatives, our acts need not be heteronomous in the quite different sense of being motivated by our desires. And when we are subject to strongly categorical heteronomous imperatives, we are not subject only to hypothetical imperatives. So Kant should not claim that, when there is normative heteronomy, only hypothetical imperatives are possible. By using the word ‘heteronomy’ in both normative and motivational senses, which he fails to distinguish, Kant con?ates two very different things: motivation by desire, and strongly categorical requirements. Like many other people, Kant often con?ates normative and motivational claims. This has regrettable effects, some of which I discuss in Appendix I.

APPENDIX I

Kant’s Motivational Argument 1 Near the start of Groundwork 2, Kant de?nes imperatives as hypothetical when they ‘represent the practical necessity of a possible act as a means of achieving something else that one wills (or might will)’, and categorical when they ‘represent an act as objectively necessary of itself, without reference to another end’ (G 414). If we claim some act to be necessary as a means of achieving some end, we may mean only that this act is a causally necessary means. And Kant later writes that hypothetical imperatives say ‘what one must do in order to attain some end’ (G 415). But when Kant de?nes these imperatives as representing some act’s ‘practical necessity’, this necessity may be partly normative, since Kant may mean that we are rationally required to take the means to our ends. And when Kant de?nes categorical imperatives as claiming some act to be ‘necessary of itself’, this necessity seems purely normative. These imperatives, we can assume, are unconditional requirements. Unlike hypothetical imperatives, which apply to us only if and because we will the achievement of some end, categorical imperatives apply to us whatever we want or will. After de?ning these two kinds of imperative, Kant asks how such imperatives are possible. Hypothetical imperatives, he answers, need no explanation or defence. If we know some act to be the only means of achieving some end, it is analytically true that we cannot fully will this end without willing this necessary means, ‘insofar as reason has decisive in?uence on us’. Surprisingly, Kant then writes:

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(1) On the other hand, the question of how the imperative of morality is possible is undoubtedly the only one needing a solution … It cannot be made out by means of any example, and so empirically, whether there is any such imperative at all, but it is rather to be feared that all imperatives which seem to be categorical may yet be in some hidden way hypothetical. For example, when it is said ‘you ought not to promise anything deceitfully’, and one assumes that … an action of this kind must be regarded as in itself evil and that the imperative of the prohibition is therefore categorical: one still cannot show with certainty in any example that the will is here determined merely through the law, without any other incentive, although it seems to be so; for it is always possible that covert fear of disgrace, perhaps also obscure apprehension of other dangers, may have had an in?uence on the will … In such a case … the so-called moral imperative, which as such appears to be categorical and unconditional, would in fact be only a pragmatic precept that makes us attentive to our advantage … (G 417) These remarks are puzzling. After asking how there can be categorical imperatives, Kant turns to the prior question of whether there are any such imperatives. When Kant writes that this question is not empirical, he might seem to mean that unconditional requirements, since they are normative, are not empirically observable, as detectable features of the world around us. Kant then remarks, however, that ‘all imperatives which seem to be categorical may yet be in some hidden way hypothetical.’ For example, there may seem to be a categorical imperative which forbids lying. But when someone refrains from lying, Kant points out, we cannot be certain that this person’s motives were purely moral. This person’s act may have been partly motivated by some self-interested fear or desire. In such a case, Kant concludes, the imperative not to lie, which seemed to be moral and categorical, would really be only pragmatic and hypothetical. Suppose that, in stating this conclusion, Kant were using ‘categorical’ in the sense that he has just de?ned. Kant’s claim would then be

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Appendix I: Kant’s Motivational Argument (A) If this person’s motive for acting was not purely moral, the imperative not to lie would not here be an unconditional requirement, since this imperative would not apply to this person. Given this person’s motives, he was not morally required not to lie.

This cannot be what Kant means. Kant did not have the strange belief that, if we conform to some moral requirement for motives that are not purely moral, this requirement does not apply to us. (A) is both clearly false, and inconsistent with many of Kant’s other claims. For example, Kant often claims that we can ful?l duties of justice whatever our motive. He did not mean that, when we ful?l some duty of justice for self-interested motives, this duty did not apply to us. Kant’s view is only that, if we do our duty for non-moral motives, our act does not have moral worth. Since Kant cannot mean (A), he seems to have shifted to other senses of ‘hypothetical’ and ‘categorical’. And Kant does use these words in other senses. Near the start of the Second Critique, he writes Imperatives themselves, when they are conditional?that is, when they do not determine the will simply as will but only with respect to a desired effect, that is, when they are hypothetical … Imperatives are hypothetical, in the sense Kant here de?nes, when they determine our will, or motivate us, only with the help of a desire for some effect. Imperatives would be categorical, in a corresponding sense, when they motivate us all by themselves, without the help of any such desire. As Kant elsewhere writes Categorical imperatives differ essentially from [those that are hypothetical], in that the determining ground of the action lies solely in the law of moral freedom, whereas in the others it is the associated ends that bring the action to reality … (L 486) Kant de?nes a ‘determining ground’ as ‘the motivating cause’ of an act (L 493, 268, 582). To express these senses, we can call imperatives

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motivationally hypothetical when their acceptance motivates us only with the help of a desire for some end, and motivationally categorical when their acceptance motivates us all by itself, or without the help of any such desire. We can similarly say that, on Kant’s other, normative de?nitions, imperatives are normatively hypothetical if they require us to act in some way as a means of achieving something that we want or will, and normatively categorical if they require us to act in some way unconditionally, or whatever we want or will. We can now suggest another reading of the end of passage (1). Kant imagines someone who conforms to the moral imperative not to lie, but who acts for some non-moral motive, such as fear of disgrace. Kant then comments that, if (B) this person’s act was not motivated by his acceptance of this imperative, it would be true that © this imperative was not, as it seemed, categorical. If Kant meant that this imperative would not be normatively categorical, or an unconditional requirement, Kant’s comment would, as I have said, be baf?ing. But Kant may mean that this imperative would not be motivationally categorical. © would then be another way of stating (B). Though this suggestion would explain this part of passage (1), it would give us another problem. Shortly before this passage, Kant has presented and discussed his normative de?nitions of ‘hypothetical’ and ‘categorical’. Near the start of (1), Kant asks Q1: Are there any categorical imperatives?

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On the de?nition that Kant has just given, this should mean Q2: Are there any unconditional requirements? Are we required to act in certain ways, whatever we want or will? But what Kant then discusses is Q3: Are there any requirements whose acceptance motivates us all by itself, or without the help of a self-interested desire? Why this sudden, unexplained shift? On what we can call the conflationist reading, Kant takes Q3 to be another way of asking Q2. Though Kant uses ‘categorical’ in both a normative and a motivational sense, he fails to distinguish these senses. Kant assumes that, if some imperative motivates us all by itself, that’s what it is for this imperative to be an unconditional normative requirement. Though there are some passages in which Kant seems not to draw this distinction, it is hard to believe that he was not aware of it. So we might next suggest another, non-conflationist reading of passage (1). Kant may assume that (D) if no one ever acted for purely moral motives, no one would be subject to categorical moral requirements. On this view, moral imperatives must have the power to motivate us all by themselves. Passage (1) might be a misleading statement of (D). Kant claims that, if his imagined person did not act for purely moral motives, this person had no duty not to lie. But this may not be what he intended to say. He may have intended to claim that, if all cases were of this kind, there would be no categorical imperatives. When we consider only passage (1), this suggestion seems fairly plausible. A few pages earlier, however, Kant explicitly claims that (E) even if no one has ever acted for purely moral motives, obedience to the moral law would still be ‘in?exibly commanded by pure reason’. (D) and (E) cannot both be true.

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We might next suggest, however, that (E) is not really Kant’s view. Though Kant claims that we can never know that anyone has acted for purely motives, he also writes: the pure thought of duty … has by way of reason alone … an in?uence on the human heart [that is] much more powerful than all other incentives (G 410?11). If Kant thought it possible that no one has ever acted for purely moral motives, it is hard to see how he could also believe that the pure thought of duty is much more powerful than all other motives. So Kant may assume that, since we can act for purely moral motives, we are subject to categorical requirements. We have other reasons to believe that Kant assumes (D). There are many passages in which Kant seems to assume that (F) we cannot be subject to a categorical imperative unless this imperative motivates us all by itself. Return for example to Kant’s question ‘How are all these imperatives possible?’ Kant says that he is asking (2) how the necessitation of the will, which the imperative expresses … can be thought … We shall thus have to investigate entirely a priori the possibility of a categorical imperative, since we do not here have the advantage of its reality being given in experience, so that what would be necessary would not be to establish this possibility but merely to explain it. (G 420) The reality of a categorical imperative, Kant seems here to assume, might have been given in experience, in which case this reality would have needed only to be explained. Kant seems to mean, by this imperative’s ‘reality’, its ability to motivate us all by itself. He goes on to write (3) … how such an absolute command is possible, even if we know its tenor, will still require special and dif?cult toil, which, however, we postpone to the last section.

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In the last section of the Groundwork, Kant argues that pure reason can by itself motivate us, and much of Kant’s Second Critique has the same aim. In passages (2) and (3), Kant seems either to con?ate the normative and motivational senses of ‘categorical’, or to assume that these two senses go together, since an unconditional moral requirement must be able to motivate us all by itself. In another passage, Kant writes that moral laws must hold not only for human being but for all rational beings as such, not merely under contingent conditions and with exceptions but with absolute necessity (G 408). Kant here asserts that (G) true moral laws must be both universal and normatively categorical, applying to all rational beings whatever they want or will. Kant continues … it is clear that no experience could give occasion to infer even the possibility of such laws. For by what right could we bring into unlimited respect, as a universal precept for every rational nature, what is perhaps valid only under the contingent conditions of humanity? And how should laws of the determination of our will be taken as laws of the determination of the will of rational beings as such … if they were merely empirical and did not have their origin completely a priori in pure but practical reason? When Kant claims that moral laws must hold for all rational beings, this claim seems normative. But Kant then turns to motivation. If ‘the laws of the determination of our will’ were merely empirical, Kant writes, we could not assume that the same laws would apply to all rational beings. The laws to which Kant here refers cannot be normative requirements, since such requirements are not empirical, and we could assume that such normative requirements apply to all rational beings. Kant must be referring to laws about how our wills are determined, or how we can

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be moved to act. Only such laws might be merely empirical in a way that prevents our assuming that they apply to all rational beings. So, in asking whether there are moral laws which hold for all rational beings, Kant takes himself to be asking whether there are necessary truths about what motivates all such beings. On the non-con?ationist reading, Kant here assumes that (H) No principle can be a true moral law unless all rational beings would necessarily be motivated to act upon it. When Kant claims that reason, or the moral law, must determine the will of all rational beings, he does not mean that this law must always move these beings, guaranteeing that their do their duty. Imperfectly rational beings can fail to do what morality requires. That is why, unlike God or other beings who are wholly good, imperfectly rational beings have duties. But the moral law, Kant may assume, must at least motivate all rational beings in the sense of making them to some extent disposed to do their duty. We can be motivated to do our duty, even when we are not moved to act in this way. ((H), we can note, allows that we can do our duty for non-moral motives, so (H) does not implausibly imply that, when we act for non-moral motives, we are not subject to the moral law.) Kant elsewhere writes: The question is therefore this: is it a necessary law for all rational beings always to appraise their actions in accordance with such maxims as they themselves could will to serve as universal laws? If there is such a law, then it must already be connected (completely a priori) with the concept of the will of a rational being as such … since if reason entirely by itself determines conduct (and the possibility of this is just what we want now to investigate), it must necessarily do so a priori. (G 426?7) When Kant asks whether it is necessary for all rational beings to act only on universalizable maxims, his question again seems to be normative. But Kant then takes his question to be whether reason all by itself can

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determine conduct. Kant does not say that, to answer his normative question, we must answer another, motivational question. He treats these as a single question. This passage gives some support to the con?ationist reading. But Kant may again be assuming here that the moral law cannot be normatively categorical, making unconditional requirements, unless this law is motivationally categorical, motivating us all by itself.

2 In Groundwork 3 and elsewhere, Kant argues at length that his Formula of Universal Law, which I shall here call Kant’s Formal Principle, is motivationally categorical. There are two ways to interpret these arguments. On one reading, Kant believes that he has already shown in Groundwork 2 that, if there is a supreme moral principle, this must be Kant’s Formal Principle. Kant then assumes that, to show that there is such a supreme principle, we must show that this principle meets one further requirement, by being motivationally categorical. In many passages, however, Kant seems to suggest a more ambitious argument, which might show in a different way that Kant’s Formal Principle is the supreme moral law. Kant seems to argue: (G) True moral laws must be both universal and normatively categorical, applying to all rational beings whatever they want or will. (H) No principle could be such a moral law unless the acceptance of this principle would necessarily motivate all rational beings. (I) No principle could have such necessary motivating force, and thus be able to be a true moral law, unless this principle can motivate us all by itself, without the help of any desire. (J) Only Kant’s Formal Principle has such motivating force. (K) There must be some moral law.

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Therefore Kant’s Formal Principle is the only true moral law, and is thus the supreme principle of morality. We can call this Kant’s Motivational Argument for his Formal Principle. Premise (I) may explain more fully why Kant assumes that, for some law to be normatively categorical, this law must also be motivationally categorical. Kant seems to assume that, unless some law motivates us all by itself, it could not be necessary that this law would motivate all rational beings, and thereby be able to be a categorical requirement. One objection to this argument is posed by Moral Belief Internalism or MBI: No one could accept some moral principle without being, to some degree, motivated to act upon it. If MBI were true, Kant’s argument would be undermined, or made trivial. Premise (H) lays down a test that every possible principle would pass. It would be true of every moral principle that its acceptance would necessarily motivate all rational beings. Kant could not then defend premise (J), which claims that only Kant’s Formal Principle has such necessary motivating power. Nor would Kant need to argue that his Formal Principle motivates us all by itself. Suppose next that MBI is false. If we could accept moral principles without always being motivated to act upon them, (H) may seem too strong. As Kant often says, we are not always fully rational. It may seem implausible to claim that, for some principle to be a moral law, there must never be anyone who, even when being irrational, fails to be motivated by their acceptance of this principle. We might suggest that Kant should appeal instead to (H2) No principle can be a true moral law unless its acceptance would necessarily motivate all rational beings insofar as they were rational. This is like the claim which, given our imperfect rationality, Kant makes about hypothetical imperatives. If we will some end, Kant writes, we

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would will what we know to be the necessary means ‘insofar as reason has decisive in?uence’ on us (G 417). If Kant rejects MBI and appeals to (H2), however, his argument would face another, similar objection. On some views, even if we are fully rational, we might fail to be motivated to act on our moral beliefs. But this is not Kant’s view. Kant clearly assumes that (L) if we were fully rational, we would be motivated to do what we believed to be our duty. Given (L), if Kant appealed to (H2), his argument would again be trivial. All moral principles would motivate all rational beings, insofar as they were rational. So Kant’s argument must appeal to the bolder premise (H). That may be in one way an advantage. Since (H) states a requirement that is harder to meet, there is more hope of defending the claim that only Kant’s Formal Principle meets this requirement. Could Kant defend this claim? Kant assumes that (M) all rational beings accept his Formal Principle, and give this principle to themselves as a law. For example, Kant writes: Common human reason … always has this principle before its eyes (G 402). Everyone does in fact appraise actions as morally good or evil by this rule (CPR 69). If all rational beings necessarily accept Kant’s Formal Principle, that would provide one sense in which this is the only principle that necessarily motivates all these beings. That would be true even if, as MBI claims, no one could accept any principle without being motivated to act upon it. (M), however, is clearly false. And Kant could not, I believe, defend (M) without assuming that his Formal Principle is the true moral law. Nor could this assumption be one premise of an argument that is intended to show that Kant’s Principle is the true moral law.

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For Kant’s argument to be worth giving, he must reject MBI, claiming that we could accept some moral principles without being motivated to act upon them. But Kant might claim that, while we could accept false moral principles without being motivated to act upon them, moral knowledge necessarily motivates. This defence of (J) would appeal to we can call the Platonic view: If some moral principle is true, that gives it the power to motivate all rational beings. If Kant appeals to this view, however, he could not defend (J) except by appealing to his argument’s conclusion. If it is a principle’s truth that gives this principle such necessary motivating power, Kant could not show that only his Formal Principle has such power except by showing that only his Formal Principle is true. There is another way in which Kant’s argument might support its conclusion. Rather than assuming that a principle’s truth gives it the power to motivate all rational beings, Kant might run this inference the other way. Kant may assume that (N) if some principle has the power to motivate all rational beings, that makes this principle true. If Kant could independently defend (N), he could then conclude that his Formal Principle is the one true moral law. Kant, I suggest, did argue in this way. What is most relevant here is Kant’s discussion, in the Second Critique, of what he calls ‘the method of ultimate moral inquiry’. In such inquiry, Kant claims, the concept of good and evil must not be determined before the moral law (for which, as it would seem, this concept would have to be made the basis) but only (as was done here) after it and by means of it (CPR 62?3). Failure to grasp this truth has led, Kant writes, to all the errors of philosophers with respect to the supreme principle of morals … The ancients revealed this error

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Appendix I: Kant’s Motivational Argument openly by directing their moral investigation entirely to the determination of the concept of the highest good, and so of an object which they intended afterwards to make the determining ground of the will in the moral law … they should ?rst have searched for a law that determined the will a priori and directly, and only then determined the object …

These claims can be given two readings. On a normative interpretation, Kant’s claims are these. When these ancient philosophers asked what was the highest good, they were asking what we had most reason to want, or what was most worth achieving, or something of this kind. Their mistake was to assume that we should ?rst try to decide what is the highest good, and could then conclude that this good end is what we ought to try to achieve. On this reading, Kant claims that we should reverse this procedure. We should start by asking what we ought to do, or what is right, and only then draw conclusions about what is good. In Rawls’s phrase, rather than the good’s being prior to the right, the right is prior to the good. What Kant writes, however, is that these philosophers should ?rst have searched for a law that determined the will. This seems to mean that, rather than asking Q4: What is the highest good? we should ask Q5: How are rational beings moved to act? If we can ?nd some law that necessarily determines the will, Kant remark suggests, we could then draw conclusions about both the right and the good. On this reading, rather than morality’s being prior to, and thus in one sense determining, the motivation of rational beings, it is the motivation of such beings which is prior to, and determines, morality. The moral law must be founded, not on truths about the highest good, but on truths about motivation. Kant makes several other claims which seem to express this second view. Thus, after claiming that the concept good must not be determined before the moral law, Kant continues:

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That is to say: even if we did not know that the principle of morality is a pure law determining the will a priori, we would at least have to leave it undecided in the beginning whether the will has only empirical or else pure determining grounds a priori … since it is contrary to all basic rules of philosophical procedure to assume as already decided the foremost question to be decided. (CPR 63) The ‘foremost question’, Kant here assumes, is about motivation. And Kant writes that, on the view that he is rejecting, … it was thought to be necessary ?rst of all to ?nd an object for the will, the concept of which, as that of a good, would have to constitute the universal though empirical determining ground of the will. Kant claims that, on this mistaken view, the good is whatever empirically determines the will. On the true view, Kant then writes, the concepts of good and evil are ‘consequences of the a priori determination of the will’. Both views, on Kant’s account, describe the good in motivational terms. Consider next this claim: Suppose that we wanted to begin with the concept of the good in order to derive from it laws of the will … since this concept had no practical a priori law for its standard, the criterion of good and evil could be placed in nothing other than the agreement of the object with our feeling of pleasure or unpleasure. Since this claim is about the criterion of good and evil, it may seem to be normative. Kant may seem to mean that, if we start by asking what is good, in the sense of what we have reason to try to achieve, our answer would have to be: only whatever gives us pleasure. But as the context shows, Kant’s claim is again about motivation. If we start with the concept of the good, Kant writes,

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He also writes If the concept of the good is not to be derived from an antecedent practical law but, instead, is to serve as its basis, it can only be the concept of something whose existence promises pleasure and thus determines the causality of the subject, that is the faculty of desire, to produce it. (CPR 58) Kant seems here to claim that, if the concept of the good is not derived from the moral law, we would have to regard the good as whatever motivates us, and our answer would have to be: whatever gives us pleasure. On this account, when hedonists say that pleasure is the only good, their claim is psychological. Kant’s account is too narrow, since Greek Hedonism often took a normative form. When Epicurus claimed that what is best is a life without pain, he meant that having such a life is what is most worth achieving. And when other writers claimed that pleasure is not the only good, they did not mean that things other than pleasure can motivate us. When Kant claims that the concept of the good should be derived from the moral law, he may mean in part that, in Rawls’s phrase, the right is prior to the good. But as these other passages suggest, Kant seems to hold another, more radical view. The ‘foremost question’, Kant claims, is whether there is some law that necessarily determines the will. If there is such a law, Kant seems to assume, this law will tell us both what is right and what is good. When Kant refers to a law ‘that determines the will’, Rawls takes this to mean that such a law ‘determines … what we are to do’, i.e. what we ought to do. But this cannot be all that Kant means. When Kant asks ‘whether the will has only empirical or also pure determining grounds’ (CPR 63), he is asking what motivates us. And he writes:

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Either a rational principle is … in itself the determining ground of the will … in which case this principle is a practical law a priori … the law determines the will directly and the action is in itself good … or else a determining ground of the faculty of desire precedes the maxim of the will … in that case such maxims can never be laws. (CPR 62) These remarks suggest that, on Kant’s view, if there is some principle that necessarily determines the will of all rational beings, this principle’s motivating power makes it the true moral law.

3 We can now ask whether Kant’s Motivational Argument could succeed. Could Kant show, or give us reason to believe, that only his Formal Principle would necessarily motivate all rational beings? Kant believed that, when we act on his Formal Principle, our motivation takes a unique form. It is often claimed that, in his account of non-moral motivation, Kant is a psychological hedonist. That claim, however, is misleading. Except when he discusses his Formal Principle, Kant is a hedonist about even moral motivation. Hence Kant’s surprising claim that all material practical principles … are, without exception, of one and the same kind and come under the general principle of self-love or of one’s own happiness (CPR 22). After noting that we can be happy to have done our duty, Kant writes: Now a eudaimonist says: this delight, this happiness, is really his motive for acting virtuously. The concept of duty does not determine his will directly; he is moved to do his duty only by means of the happiness he anticipates. (MM 378) This is just what Kant claims about how we can be moved to act on all material or substantive principles, such as requirements to promote our own perfection or the happiness of others. Kant writes that, even when our will is determined

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Appendix I: Kant’s Motivational Argument by means of reason … as with the principle of perfection, the will never determines itself directly, just by the representation of an act, but only by means of an incentive that the anticipated effect of the action has upon the will (G 444).

Though Kant admits that such principles have ‘determining grounds’ that are ‘objective and rational’, he claims that such principles can become motives of the will only by means of the happiness we expect from them (CPR 41). We can be moved to act, Kant often says, in only two ways. Either our will is determined by ‘the mere lawful form’ of our maxim, since we are acting on his Formal Principle, or else a determining ground of the faculty of desire precedes the maxim of the will, which presupposes an object of pleasure or displeasure and hence something that gratifies or pains (CPR 62). He also writes: all determining grounds of the will except the one and only pure practical law of reason (the moral law) are without exception empirical and so, as such, belong to the principle of happiness … (CPR 93) The direct opposite of the principle of morality is the principle of one’s own happiness made the determining ground of the will; and … whatever puts the determining ground that is to serve as a law anywhere else than in the lawgiving form of the maxim must be counted in this. (CPR 25) In these and other passages, Kant assumes that (O) when we act on Kant’s Formal Principle, reason directly and by itself motivates us. In all other cases, our motivation takes a hedonistic form.

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When Kant claims that ‘material principles’ are ‘quite un?t’ to be moral laws, he seems to be appealing to (O). His objection seems to be that, since such principles motivate us in this hedonistic way, they cannot be guaranteed to motivate all rational beings. Even if we all got pleasure from acting?or from the thought of acting?on some material principle, that would be a contingent fact, which depended on our natural constitution. We cannot assume that all rational beings would get similar pleasure, and would thus be motivated to act upon this principle (CPR 34). For some principle to be guaranteed to motivate all rational beings, as is required of any moral law, this principle must motivate us in a different, non-hedonistic way. And that is true, Kant claims, only of his Formal Principle. Kant did not always assume (O). In one passage in the Groundwork, Kant writes: In order for a sensibly affected rational being to will that for which reason alone prescribes the ‘ought’, it is admittedly required that his reason have the capacity to induce a feeling of pleasure or of delight in the ful?lment of duty … (G 460) This remark implies that (P) even when we act on Kant’s Formal Principle, our motivation must be hedonistic. Kant seems to be assuming here that, when we accept his Formal Principle, reason always produces in us the needed feeling of pleasure or delight. If we accepted other principles, Kant might claim, reason would not produce in us this feeling. This could be how, compatibly with (P), only Kant’s Formal Principle would necessarily motivate all rational beings. Kant’s accounts of motivation are too hedonistic. Even when applied to non-moral motivation, Psychological Hedonism is mistaken. But Kant’s distinction could be revised. He might claim that (Q) when we accept his Formal Principle, reason always directly motivates us to act upon it. To act on any other

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Appendix I: Kant’s Motivational Argument principle, we must be motivated by some desire, and we may not have any such desire.

Kant might even allow that all acts are motivated by desires. He could then claim that ® when we accept his Formal Principle, reason always produces in us a desire to act upon it. When we accept other principles, we may not have such a desire. Since these claims are not hedonistic, they are in one way easier to defend. Both claims raise the same questions. Does reason by itself motivate us only when we accept Kant’s Formal Principle? If so, why is that true? Kant may be right to claim that, when we act on his Formal Principle, we are motivated by reason, or by our moral beliefs. And he may be right to distinguish between this kind of motivation and some kinds of motivation by desire. But Kant’s Motivational Argument requires him to distinguish between two kinds of moral motivation. His claim must be that, if we accept his Formal Principle, our moral beliefs motivate us in a special and uniquely reliable way. That would be so if it was only moral knowledge that had such special motivating power, and only Kant’s Formal Principle was true. But as I have said, Kant’s argument cannot assume that his Formal Principle is true, since that is what this argument is intended to show. For Kant’s argument to support his principle, it must be the content of Kant’s Formal Principle, not its truth, which gives this principle its unique motivating power. Kant must claim that, if we believe that we ought to act only on universalizable maxims, this belief necessarily motivates us. If we accept any other moral principle, our moral beliefs would not have such power. Kant often seems to make this claim. For example, he writes: Only a formal law, that is, one that prescribes to reason nothing more than the form of this universal lawgiving as the supreme condition of maxims, can be a priori a determining ground of practical reason (CPR 64).

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Kant’s defences of this claim are surprisingly oblique. He is more concerned to show that pure reason can be practical, by determining our will. Kant takes it for granted that, if pure reason is practical, it moves us to act on his Formal Principle. He even writes: pure reason must be practical of itself and alone, that is, it must be able to determine the will by the mere form of a practical rule … (CPR 24) Kant here identi?es reason’s being practical with its determining the will by a rule’s mere form. That is a slip, since reason might move us to act on one or more substantive principles. As this slip suggests, Kant assumes that his claim is uncontroversial. Thus, when introducing his Formula of Universal Law, Kant writes The most ordinary attention to oneself con?rms that this idea is really, as it were, the pattern for the determinations of our will. (CPR 44) We can easily be directly aware, this remark implies, that our acceptance of Kant’s formula motivates all our moral acts. That is not, however, true. Kant’s claim, as he often says, cannot appeal to empirically established psychological laws. The Universe may contain non-human rational beings, and we have no evidence about the motivation of such beings. It must be an a priori truth that all rational beings would be motivated by Kant’s Formal Principle. And for Kant’s argument to succeed, there must be no such truth about any other moral principle. Kant assumes that there are such a priori truths about the motivating power of the moral law. For example, he writes: we can see a priori that the moral law, as the determining ground of the will, must by thwarting all our inclinations produce a feeling that can be called pain … (CPR 73) the moral law … in as much as it even strikes down self-conceit, that is humiliates it, is an object of the greatest

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Appendix I: Kant’s Motivational Argument respect, and so too the ground of a positive feeling that is not of empirical origin and is cognized a priori … .

Similarly, after mentioning our boundless esteem for the pure moral law stripped of all advantage … Kant writes … one can yet see a priori this much: that such a feeling is inseparably connected with the representation of the moral law in every ?nite rational being (CPR 80). But Kant does not defend these implausible claims, nor do they imply that the moral law must be his Formal Principle. There are other features of Kant’s view that may have led him to believe that only his Formal Principle necessarily determines the will. He may again be in?uenced by a failure to distinguish between his uses of the words ‘material’ and ‘formal’. Thus Kant writes: all that remains of a law if one separates from it everything material, that is, every object of the will (as its determining ground), is the mere form of giving universal law (CPR 27). If a rational being is to think of his maxims as practical universal laws, he can think of them only as principles that contain the determining ground of the will not by their matter but only by their form. These remarks seem to assume that, if some principle is not motivationally material, because it can motivate without the help of a desire, this principle must be normatively formal in sense 3, imposing a merely formal constraint. As I have claimed, that does not follow. Kant may also have assumed that, since pure reason determines our will as noumenal beings in the supersensible timeless world, reason must determine our will with some principle which, because it is merely formal, has the abstract purity of that world. Consider, for example, these remarks:

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The will is thought as independent of empirical conditions and hence, as a pure will, as determined by the mere form of law … It is a question only of the determination of the will … whether it is empirical or whether it is a concept of pure reason (of its lawfulness in general). (CPR 31) Reason takes an immediate interest in an action only when the universal validity of the maxim of the action is a suf?cient determining ground of the will. Only such an interest is pure. (G 460 note) Some passages involve both these assumptions. Thus Kant writes: Since the matter of a practical law … can never be given otherwise than empirically … a free will, as independent of empirical conditions (i.e. conditions belonging to the sensible world) … must ?nd a determining ground in the law but independently of the matter of the law … The lawgiving form … is therefore the only thing that can constitute a determining ground of the will. (CPR 29) Kant here argues that, since a moral will must be free from empirical conditions, and cannot be determined by anything material, such a will must be determined by Kant’s Formal Principle. As before, that does not follow. Kant was inclined to group together, like opposing armies, several pairs of contrasting concepts and properties: material empirical pleasure-based heteronomous phenomenal contingent conditional impure

formal a priori duty-based autonomous noumenal necessary unconditional pure

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The ?rst of these distinctions, however, is not exhaustive. Some substantive principles are not, in the senses Kant intends, either material or formal. And such principles can be a priori, duty-based, necessary, unconditional, and, in the relevant senses, pure. When Kant rejects all ‘material’ moral principles, he gives no example of what is claimed by such principles, saying only that they appeal to such things as happiness, perfection, or God’s commands. As we have seen, in giving some of the arguments of the Groundwork, Kant seems to overlook those substantive principles that make categorical requirements. For Kant’s Motivational Argument to succeed, however, his claims must apply to all such principles. Kant must claim that his Formal Principle differs from all such ‘material’ or substantive principles in being the only principle that would necessarily motivate all rational beings. Kant could not defend this claim. Our moral beliefs do not have special motivating force if and because we derive them from Kant’s Formal Principle. Compared with substantive moral beliefs?such as the beliefs that it is wrong to kill, or that we have a duty to care for our children?there is no magic in the thought that we should act only on universalizable maxims. Kant’s Motivational Argument, I conclude, cannot support his principle. Since Kant appeals to this argument so often, he seems to have found it especially convincing. It is not easy to explain why. Of Kant’s reasons for believing that his Formal Principle is the supreme moral law, one seems to have been his belief that his Formal Principle has unique motivating force. But Kant, I suspect, had this second belief only because he believed that his Formal Principle is the supreme law.

4 Kant’s argument is open, I believe, to other objections. This argument assumes that (H) no principle can be a true moral law unless its acceptance would necessarily motivate all rational beings.

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As we have seen, there are two ways to defend this claim. On the Platonic view, moral knowledge necessarily motivates. If some moral principle is true, that gives it the power to motivate all rational beings. On Kant’s view, it seems, this dependence goes the other way. Rather than assuming that a principle’s truth gives it such motivating power, Kant seems to assume that (S) if some principle has the power to motivate all rational beings, that makes this principle a true moral law. This view we can now call Kant’s Moral Internalism. Remember next that, on my proposed revision of Kant’s Formal Principle, acts are wrong unless they are permitted by principles whose universal acceptance everyone could rationally will. Though Kant appeals only to what we ourselves could rationally will, that is because he assumes that what each of us could rationally will is the same as what everyone could will. And Kant appeals to ‘the idea of the will of every rational being as a will giving universal law’ (432). So we can assume that Kant would accept (T) moral principles are true only if and because these are the principles whose universal acceptance everyone could rationally will. This claim is intuitively plausible. We can see how some principle’s truth might depend on its acceptability, which might in turn depend on whether we could rationally will it to be true that everyone accepts this principle. Kant’s Moral Internalism could instead be stated as (U) moral principles are true only if and because their acceptance would necessarily motivate all rational beings. This claim is much less plausible. Why should a principle’s truth depend, not on its acceptability, but on its motivating power? Kant himself writes Nothing is more reprehensible than to derive the laws prescribing what ought to be done from what is done (First Critique, A/319/B 375).

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We can add, ‘or from what moves us to do it’. I have rejected Kant’s claim that we are autonomous, in the sense of being subject only to requirements that we give ourselves. We are subject, I believe, to several rational and moral requirements, whose truth and normative force do not in any way derive from us. But I believe that, unlike us, morality is autonomous in a sense that is close to Kant’s. Moral requirements are not determined from outside, or by something other than morality itself. Morality’s autonomy is denied by Kant’s form of Moral Internalism. Rather than ?rst asking what is good, Kant claims, we should ?rst search for the law that determines the will of all rational beings. We can then derive, from this motivational truth, truths about what ought to be done. This heteronomous account of morality is, I believe, deeply ?awed. One way to bring that out is this. According to what Kant calls the principle of self-love, we ought rationally to promote our own happiness. Since Kant believes that all rational beings necessarily want their own happiness, he must agree that this principle would necessarily motivate all these beings. Given Kant’s Moral Internalism, he ought to conclude that the principle of self-love is a true moral law. Perhaps because he sees the problem I have just described, Kant rejects the principle of self-love in a way that is curiously inconsistent with his rejection of other material principles. Kant claims both that (V) these other principles cannot be true moral laws because it is not a necessary truth that all rational beings would be motivated to act upon them, and that (W) the principle of self-love cannot be a true moral law because it is a necessary truth that all rational beings would be motivated to act upon it. If these objections were both good, we would have to conclude that there cannot be any true moral laws. Neither objection, I believe, is good. Unlike (V), which assumes Kant’s Moral Internalism, (W) goes to the opposite extreme. (W) assumes that,

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if some principle would necessarily motivate all rational beings, that disqualifies this principle from being a true moral law. In rejecting the principle of self-love on this ground, Kant misapplies another, less implausible view. On that other view, since the concept of duty is the concept of a constraint, those who would be certain to act in some way, because they had no contrary temptations, could not have a duty to act in this way. Beings who were wholly good, Kant claims, could not have any duties. This view does not imply, however, that the principle of self-love cannot be a moral law. As Kant himself points out, most of us sometimes fail to act on this principle, as when we fail to resist the temptation of some immediate pleasure, at a foreseen and greater cost to our future happiness. So Kant should not reject this principle on the ground that all rational beings would necessarily have some motivation to act upon it. Though Kant seems right to say that the principle of self-love is not a true moral law, he must reject this principle with some claim about its content, rather than its motivating power. The same applies to other principles. Just as Kant should not reject the principle of self-love on the ground that its acceptance would necessarily motivate all rational beings, he should not reject other principles on the ground that their acceptance would not necessarily motivate all such beings. When we ask which moral principles are true, or what is right and what is good, we should not follow Kant’s proposed ‘method of ultimate moral inquiry’. We should not search for some law that necessarily determines the will. Perhaps, as Platonists believe, true moral laws would necessarily motivate all rational beings. But if that were so, it would be a consequence of the truth of these moral laws, and the rationality of these beings. If moral knowledge would necessarily motivate all rational beings, that would not be because it is the power to motivate these beings which makes a principle a true moral law. Motivation is not, in that sense, prior to morality. In some passages, Kant’s Moral Internalism seems to take a more extreme, reductive form. He seems to accept (X) If some principle would necessarily motivate all rational beings, that does not merely make this principle a true moral

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This view is suggested by several of the passages quoted above. Thus, after claiming that moral laws must hold … for all rational beings as such … Kant continues how should laws of the determination of our will be taken as laws of the determination of the will of rational beings as such … if they were merely empirical and did not have their origin completely a priori in pure but practical reason? (G 408) Moral laws, Kant here suggests, are not merely the laws that necessarily determine the will. They are laws of the determination of the will. He also writes: the good (the law) … which objectively, in its ideal conception, is an irresistible incentive… . So here we lack the ground of duty, moral necessitation; we lack an unconditioned imperative, no coercion can be thought of here that enjoins immediate obligation. (L 497) Such a being has no need of any imperative, for ought indicates that it is not natural to the will, but that the agent has to be coerced. (L 605) Ideal normativity, Kant here assumes, involves an irresistible coercive incentive. Kant similarly writes that, to prove that there are categorical imperatives, we must show that there is a practical law which by itself commands absolutely and without all incentives (G 425). A law commands absolutely, this remark suggests, if this law moves us to act without the aid of other incentives. As Kant also says

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The practical rule, which is here a law, absolutely and directly determines the will objectively, for pure reason, practical in itself, is here directly law-giving. (CPR 31) Reason gives a law, Kant here assumes, by determining the will. Or consider Kant’s remark that moral imperatives have no regard either for skill, or prudence, or happiness, or any other end that might bring the actions into effect; for the necessitation to act lies purely in the imperative alone (L 487). Though Kant describes necessitation as the relation which is expressed by ‘ought’, this remark treats this relation as the bringing about of an act. Consider next Kant’s claim that imperatives are categorical when they assert the practical necessity of the action in an absolute sense, without the motivating ground being contained in any other end (L 606). This de?nition con?ates normativity and motivation. Similarly Kant writes: Human actions … if they are to be moral, have need of practical imperatives, i.e. of practical determinations of the will to an action. (L 486) duty … lies … in the idea of a reason determining the will by means of a priori grounds (G 408). Practical good … is that which determines the will by means of representations of reason … (G 413) The concepts of good and evil … are … modi of a single category, namely that of causality … (CPR 65) On such a view, I believe, normativity disappears. I have been discussing only some of Kant’s claims. Kant himself distinguishes between normativity and motivating force, as when he writes:

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9 Appendix I: Kant’s Motivational Argument Guideline and motive have to be distinguished. The guideline is the principle of appraisal, and the motive that of carrying out the obligation; in that they have been confused, everything in morality has been erroneous. (L 274)

In some passages, Kant seems to forget this warning. But consistency is not, as Kant claimed, a philosopher’s greatest duty. It is more important to have, as Kant often did, new ideas that take us closer to the truth.

APPENDIX J

On What There Is 1 Rather than being Actualists, who believe: There is nothing except what actually exists, we ought, I have claimed, to be Possibilists, who believe: There are some things that are merely possible. I have also made some conceptual claims. According to the Plural Senses View: There is one wide, general sense in which we can claim that there are certain things, or that such things exist. We can also use these words in other, narrower senses. For example, if we say that certain things exist in what I call the narrow actualist sense, we mean that these things are, at some time, actually existing concrete parts of the spatiotemporal world. As Possibilists, we should claim: There are in the wide sense some possible things that never exist in this actualist sense. There are also, I have claimed, some abstract entities, such as some logical and normative truths, which exist in a distinctive, non-ontological sense. I shall here develop and defend these claims. In defending Possibilism, my main aims are to defend the Plural Senses View, and the implications of both views. Possibilism is the thin end of a wider wedge. Some Actualists say: Nothing actually exists except what actually exists.

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But Possibilists would accept this trivial claim. For Actualism to be a signi?cant view, Actualists must claim: Nothing exists in any sense except what actually exists. Many Actualists would deny that there is any other sense in which things might exist. These people assume the Single Sense View: The words ‘there are’ and ‘exist’ must have only the same single sense. Plantinga, for example, writes that, when Possibilists say that (A) there is some entity that is merely possible and never actually exists, this claim is ‘monumentally perplexing’, since (A) means that (B) there ‘is a thing such that there is no such thing’. This remark is surprising, since Plantinga earlier wrote: What might it mean to say that there are some individuals that do not exist? … Perhaps we can say something about what is not meant. It is not suggested, of course, that there exist some things that do not exist, ‘exist’ being taken the same way in each occurrence. When Plantinga discusses (A), he seems to forget this earlier claim, since he assumes that Possibilists are making the contradictory suggestion that there exist some things that, in the same sense of ‘exist’, do not exist. Few people give arguments for the Single Sense View. When he defends this view, for example, Quine merely writes: There are philosophers who stoutly maintain that ‘exists’ said of numbers, classes, and the like and ‘exists’ said of material objects are two uses of an ambiguous term ‘exists’. What mainly baf?es me is the stoutness of their maintenance. What can they possibly count as evidence? Why not view [‘exists’] as unambiguous but very general . . ?

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If there could be no evidence for the view that ‘exists’ can have two senses, there could also be no evidence against this view, and Quine should also be baf?ed by the stoutness with which some people defend the Single Sense View. There is, however, some evidence for the Plural Senses View. Quine himself writes that, if some word or phrase ‘can be clearly true or false of one and the same thing’, that is ‘the nearest we have to a clear condition of ambiguity’. Quine’s example is the claim that © dark feathers are light. Since dark feathers are light in weight but not in colour, © is in one sense true and in another sense false. As this example shows, the word ‘light’ is ambiguous, having two senses. Return next to (D) There was a palace designed by Wren to replace the burnt Palace of Whitehall. This claim is also in one sense true and in another sense false. We can truly say (E) There was such a possible palace designed by Wren, but this palace was not built and never actually existed. This example shows that, on Quine’s proposed criterion, the phrase ‘there was’ has at least two different senses. There was such a palace in the wide sense, but not in the narrow actualist sense. Single Sense Theorists might reply: (F) What makes (D) ambiguous is not the phrase ‘there was’ but the word ‘palace’. This word has two senses, since it can mean either ‘possible palace’ or ‘actual palace’. On this view, we should replace (E) with (G) There was such a possible palace designed by Wren, but since this palace was not built, there was no actual palace designed by Wren.

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But (F) is implausible, and (G) supports both Possibilism and the Plural Senses View. (G) tells us that there was a palace that was merely possible, because this palace never became actual. That is another way of claiming that there was such a possible palace, though this palace never existed in the actualist sense. In the passage quoted above, Quine is defending the view that (H) material objects and abstract entities can both be claimed to exist in the same ‘very general’ sense. It is often assumed that, if we accept (H), we thereby accept the Single Sense View. But that is not so. We could accept both (H) and the Plural Senses View. We could claim (I) There are, in the wide sense, both material objects and abstract entities. But we would add: (J) As well as existing in this wide sense, many material objects also exist in the actualist sense, by being actual concrete parts of the spatio-temporal world. Abstract entities do not exist in this narrower sense, nor do material objects that are merely possible. Quine’s remarks provide no argument against this view. Other writers deny the distinction drawn by (J). that, as an Actualist, he believes that

Stalnaker writes

(K) ‘existing and actually existing are the same thing. There exists nothing that is not actual.’ This claim, Stalnaker remarks, should not be understood as ‘a restrictive metaphysical thesis’. This remark suggests that (K) does not con?ict with any metaphysical view. That would be true if there was a difference

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between the meanings of the phrase ‘there are’ and the word ‘exist’, so that Possibilists could accept (K) but add that (L) there are, in the wide sense, some things that are merely possible, and never actually exist. Stalnaker also calls (K) ‘a trivial consequence of the meaning of the word ‘‘actual’’ ’. This remark again suggests that (K) and (L) do not con?ict. It could not be a consequence of the meaning of ‘actual’ that the phrase ‘there are’ cannot be used in this wide sense. When Stalnaker calls (K) a trivial consequence of the meaning of ‘actual’, his point may be that ‘actually’ can be used, like ‘truly’, in a way that reinforces any indicative statement or assertion, without adding anything to its meaning. Instead of saying ‘X’, we could always say ‘Actually X’. But this fact does not support Actualism. Possibilists could use this sense of ‘actually’, and restate (L) as (M) There actually are, in the wide sense, some things that are merely possible and never exist in the actualist sense. Stalnaker’s Actualism seems, however, to be a metaphysical view, so he might reject both (L) and (M). When he claims that (K) is not a restrictive metaphysical thesis, Stalnaker may mean that, though (K) makes a metaphysical claim, there is no other intelligible or coherent metaphysical view. He may assume that (N) the words ‘there are’ and ‘exist’ must have only the same single sense, which means ‘actually exist’. We can call (N) the Actualist Single Sense View. If ‘there are’ must mean ‘there actually exist’, Possibilists could not coherently claim that there are some things that are merely possible, and never actually exist. Though (N) could not follow from the meaning of the word ‘actually’, many Actualists assume (N). Rather than merely assuming the Single Sense View, van Inwagen vigorously defends this view. Van Inwagen rejects the very idea of a

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merely possible concrete object, such as a merely possible horse, or human being. ‘Like ‘‘round square’’,’ he writes, ‘ ‘‘non-actual horse’’ is a contradiction in terms.’ But if we say (O) There was a possible palace that was never actual, that is not a contradiction. Van Inwagen might reply (P) Nothing that isn’t actual could be a palace. But in the sense in which (P) is true, (P) means that nothing that isn’t actual could be an actual palace. This claim does not con?ict with (O), which isn’t a claim about an actual palace. Like Stalnaker, Van Inwagen seems to assume that (Q) since the word ‘actually’ adds nothing to the content of any assertion, we can truly assert that everything that exists actually exists. But (Q) does not support the Single Sense View. If the word ‘exists’ can be used in both the wide and actualist senses, we could claim ® Everything that exists in the wide sense actually exists in this sense, and everything that exists in the actualist sense actually exists in this sense. What (Q) shows is that, in explaining the actualist sense, it is not enough to say Something exists in the actualist sense if this thing actually exists. That is why I claimed Something exists in the narrow actualist sense if this thing is an actual concrete part of the spatio-temporal world. Return now to the claim that (E) There was a possible palace designed by Wren, but this palace was not built so that it never actually existed.

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If the Single Sense View were true, (E) would mean (S) There actually existed such a possible palace, but this palace was not built so that, in the same sense of ‘exists’, this possible palace never actually existed. This claim is a contradiction, which could not possibly be true. But (E) does not mean (S). If we use my de?nitions and the redundant sense of ‘actually’, (E) could be more fully stated as (T) There actually existed in the wide sense such a possible palace, but this palace was not built so that it never actually existed in the actualist sense. Unlike the contradictory (S), this claim is coherent and might be true. Van Inwagen might object that (E) and (T) are not coherent, because the words ‘there are’ and ‘exist’ cannot have two such different senses. There are, van Inwagen writes, ‘two clear and compelling arguments’ for the Single Sense View. According to one of these arguments: When we say ‘There are some Xs’, we mean ‘The number of Xs is greater than zero’. The phrase ‘The number of … is greater than zero’ has only one sense. Therefore The phrase ‘There are some Xs’ has only one sense. But if ‘there are’ has two senses, A and B, we could coherently claim both The number of Xs that there are, in sense A, is greater than zero, and The number of Ys that there are, in sense B, is greater than zero.

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For example: The number of possible buildings that there are in the wide sense is greater than zero, and The number of actual buildings that there are in the actualist sense is greater than zero. These claims conform to van Inwagen’s second premise, since they both use the phrase ‘The number of … is greater than zero’ in the same sense. But these claims use the phrase ‘there are’ in two different senses. So this argument does not show that this phrase has only one sense. Van Inwagen also argues: When we say ‘There exists an F’ what we mean is equivalent to ‘It is not the case that everything is not an F’. The word ‘not’ has only one sense. Therefore The phrase ‘There exists an F’ has only one sense. We could reply: It is not the case that everything is not a possible building, nor is it the case that everything is not an actual building. As these facts might show, there is one wide sense in which there are both possible and actual buildings. But some of the possible buildings do not also exist in the actualist sense. Van Inwagen suggests another argument, which takes the form of a funny story. He is discussing Meinong’s view that words like ‘there are’ and ‘exist’ can have one sense when they are applied to abstract entities, such as numbers or mythical beings, and can have another sense when they are applied to physical objects, such as buildings or rocks. On this view, we might say that there are some

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abstract objects which do not, in the other sense, exist. Van Inwagen’s story goes: One day my friend Wyman told me that there was a passage on page 253 of Volume IV of Meinong’s Collected Works in which Meinong admitted that his theory of objects was inconsistent. Four hours later, after considerable fruitless searching, I stamped into Wyman’s study and informed him with some heat that there was no such passage. ‘Ah’ said Wyman, ‘you’re wrong. There is such a passage. After all, you were looking for it: there was something that you were looking for. I think I can explain your error; although there is such a passage, it doesn’t exist. Your error lay in your failure to appreciate this distinction.’ I was indignant. My refusal to recognize a distinction between existence and being is simply my indignation, recollected in tranquillity and generalized. Though this joke is funny, it does not apply to Meinong’s view. Since Wyman accepts Meinong’s view, he would not have claimed that there was such a passage, in the sense that applies to abstract entities. Such a passage in a printed book would not have been an abstract entity but a sequence of visible marks on a physical object. Wyman would have claimed only that no such passage existed. Van Inwagen’s indignation was not justi?ed. I shall now tell another story, about the view that Plantinga asserts and van Inwagen defends. My story goes: As Plantinga leaves the room, he tells me that one actually existing state of affairs is that my wife is dead. I am struck with horror and grief. Four hours later, when he returns, Plantinga says: ‘Don’t worry. Though this state of affairs actually exists, it isn’t actual. Your wife is alive and well.’ After my needless hours of grief, my indignation would be justi?ed. On Plantinga’s view, merely possible states of affairs actually exist, and they exist ‘just as serenely as your most solidly actual state of affairs’. But these actually existing states are not, Plantinga claims, actual, in the sense of being actualized, or obtaining. Given Plantinga’s de?nitions,

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his claims are coherent. But when my wife is alive and well, it may be misleading to claim that one actually existing state of affairs is that my wife is dead. Unlike my wife’s actual state of being alive, her possible state of being dead is not real, or is at least less real, and can therefore be plausibly claimed to exist only in the wide sense. That is why it matters whether someone is actually or merely possibly dead. As Fine writes: there is an ontological difference between actual objects and merely possible objects … We might call someone who takes actuality seriously an actualist. Possibilists like me are also, in this sense, actualists. We believe that being actual is ontologically very different from being merely possible. That is why we claim that, though there is one wide sense in which there are both actual objects and objects that are merely possible, it is only the actual objects that also exist in the narrower, actualist sense. There is also an ontological difference between concrete objects, such as rocks and stars, and abstract entities, such as numbers and logical truths. We can therefore defensibly claim that, though both kinds of entity exist in the same wide sense, these kinds of entity also exist in different, narrower senses. I shall return to this claim. Van Inwagen’s arguments for the Single Sense View do not, I conclude, succeed. Nor, I believe, could any such argument succeed. Such arguments could at most show that everything that exists should be claimed to exist in the same wide sense. These arguments could not show that we cannot also intelligibly use other, narrower senses. To illustrate this point, we can turn from the concept being or existing to the concept doing. Consider: accidentally killing someone, stumbling over a hidden stone, forgetting something, digesting food, growing older, contracting measles. These can all be claimed to be things that, in a wide sense, we do. But we can also use the word ‘do’ in a narrower sense, which applies only to voluntary and intentional acts. The things just listed are not, in this sense, things that we do. No argument could show that the word ‘do’ cannot be intelligibly used in such different senses. Nor could

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any argument show that the words ‘there are’ and ‘exist’ cannot have similarly different senses. Some Actualists reject Possibilism with surprisingly extreme remarks. Plantinga calls this view ‘monumentally perplexing’, and Lycan calls it ‘literally gibberish or mere noise’. These people may be misled by the fact that (U) the word ‘actually’ adds nothing to the content of an assertion. This fact may suggest that Possibilism is false, since everything that exists actually exists. But as Plantinga points out, the word ‘actually’ can be misleading. (U) could not show that the words ‘there are’ and ‘exist’ cannot be intelligibly used in different senses. (U) could show only that (V) when something exists in any of these senses, this thing actually exists in this sense. It could still be true that (W) though something actually exists in one of these senses, this thing does not actually exist in some other sense. In my example: (X) There actually was, in the wide sense, a possible palace designed by Wren to replace the Palace of Whitehall. This possible palace was not built and therefore never actually existed in the actualist sense. (X) is not ‘monumentally perplexing’ or ‘literally gibberish’, but a clear and coherent claim.

2 According to Possibilism: There are, in the wide sense, some things that are merely possible, and never actually exist.

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Since Actualists cannot appeal to the Single Sense View, they cannot reject Possibilism as incoherent, or self-contradictory. But they might claim that Possibilism is false. Actualists might say: It could not be in any sense true that there are some things that are merely possible. In discussing this view, we can ?rst consider, not persisting things such as buildings or people, but acts and other events. Many Actualists ignore events. When these people deny that there are any merely possible entities, they often discuss farfetched examples. Quine suggests that, when people claim that there are such entities, their ‘main motive’ is to be able to make claims about mythical beings, such as the winged horse Pegasus. And Burgess and Rosen write: Among wilder metaphysical entities are possibilia, unactualized possible worlds and the unactualized possible entities that inhabit them. But such entities include anything that we could have done, such as the knock that we should have knocked before opening someone else’s bedroom door. There is nothing mythical or wild in such merely possible events. Rather than merely ignoring events, some Actualists claim: (A) There are no events. There are only persisting things, such as people, rocks, and stars. Some of these people argue: (B) We cannot justi?ably believe that there are entities of some kind unless there are facts that we cannot adequately describe except in ways that refer to such entities. © Whenever someone makes some true claim which seems to refer to some event, we can restate this claim, or adequately redescribe the relevant facts, without referring to any event.

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Therefore We cannot justi?ably believe that there are any events. We ought, I believe, to reject (B). Consider, for example, the facts that (D) there are some happily married couples, mountain ranges, and clusters of stars. We could redescribe such facts in ways that referred only to the relations between various people, mountains, and stars. So (B) mistakenly implies that we could not justi?ably believe (D). Though we can truly claim that there are such happy couples, mountain ranges, and clusters of stars, we should admit that these composite entities are not fundamental. Actualists might similarly claim: (E) When we describe what fundamentally exists, we need not mention events. It is enough to refer only to persisting things. If (E) seems plausible, that may be because in ordinary English we do not say that events exist. We would not, for example, say that the First World War came into existence in 1914, continued to exist for four years, and then ceased to exist. We would say instead that this war occurred during these four years. But there was a First World War, and a Second World War, and we can hope that there will not be a Third World War. Nor are events less fundamental than persisting things. When some persisting thing hardly changes, as when some rock stays on the surface of the Moon for a million years, we might call this thing a very boring event. That claim would be a category mistake, since it is really this thing’s history that is very boring. But such claims provide a different and acceptable way of redescribing some parts of reality. Though the Sun is a persisting object, and the Great Fire of London was an event, we could think of the Sun in a different way, as a much greater and longer lasting ?re. When things change, in contrast, we cannot redescribe these changes as persisting things. If I jump into some river and save your life, this act is not remotely like some rock or other unchanging persisting thing. If there were no events, because nothing ever happened, the

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Universe would have no history, nor could we exist. We live lives, and each life is a series of events. In living our lives, and thinking about what happens, we must also think about many possible events. When we are deciding what to do, we must choose between different possible acts, often by considering the possible outcomes of these acts. And there are other ways in which we should try to have true beliefs about many possible events. Without such beliefs, for example, we could not give causal explanations, since such explanations appeal to facts about what would have happened, if things had been in some ways different. Actualists cannot defensibly deny that there are acts, and other events. To defend Actualism, however, these people must deny that there are any merely possible events. When we are deciding what to do, Possibilists like me believe, (F) there are, in the wide sense, different possible acts between which we choose. Since only one of these acts will be actual, the other acts are merely possible. Actualists must claim: (G) There are only actual acts. It could not be in any sense true that there are some acts that are merely possible. Since Actualists must reject (F), they must give a different account of what is involved when we decide what to do. Some Actualists claim (H) There actually exist the possibilities that we shall act in any of several ways, and we choose between these possibilities. These Actualists might say that, unlike (F), (H) does not assert or imply that there is anything that is merely possible. There is, I believe, no such difference between (F) and (H). Though (H) claims that there actually exist these different possibilities, these Actualists must admit that only one of these possibilities will be actualized, in the sense of being what actually happens. When we are deciding what to do, we choose which of these possibilities will be what actually happens. The other possibilities will not actually happen,

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but will remain mere possibilities. Though (F) claims that there are, in the wide sense, some acts that are merely possible, and (H) claims instead that there actually exist these unactualized possibilities, these are different ways of stating the same fact. If those who claim to be Actualists accept (H), these people are not, I shall argue, really Actualists. Some other Actualists claim (I) There actually exist several ways in which we might act, and we choose in which of these ways we shall act. Similar remarks apply. Of these ways in which we might act, only one will be the actual way in which we act. The unactualized ways in which we might act do not relevantly differ from what Possibilists call merely possible acts. Other Actualists deny that there exist such abstract entities as possibilities or ways of acting. When these people describe what is involved in our making some decision, some of them claim (J) It might be true that we shall act in any of several ways, and we choose which of these things will be true. Others claim (K) We think thoughts about the different ways in which we could act, and we choose which of these actual thoughts will guide our actual future act. Similar remarks apply. Like (H) and (I), these claims imply that, when we are deciding what to do, we have different possible alternatives. When we choose which alternative will be actual, the other alternatives will be merely possible. Actualists might reply that, when they say that (L) we could act in several different ways, this claim does not imply that (M) there are such entities as different possible alternatives.

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But there is no relevant difference between (L) and (M). We do not state a different metaphysical view merely by using the verb ‘could’ and the adverb ‘in different ways’, rather than the adjective and noun ‘possible alternatives’. These alternatives are the different ways in which we could act. If Actualists make any of claims (H) to (L), they cannot defensibly deny that (N) there are, in the wide sense, such merely possible alternatives. Since these people cannot deny (N), they should become Possibilists, who believe that (O) there are, in the wide sense, some things that are merely possible. It is irrelevant whether we can describe such cases without explicitly referring to such possible alternatives. As Church pointed out, misogynists might adequately describe the world without claiming that there any women, but that would not show that there are no women. We are asking whether, in our thoughts about our lives and other features of the world, it is enough to think only about what actually happens or will happen. And that is not enough. To make good decisions, or understand what causes what, we should try to form true beliefs about what might happen, or what would have happened. If there was no sense in which there are such merely possible events, we could not form such true beliefs. Some Actualists would reply that we can form true beliefs about some things that don’t exist. One such belief is (P) Pegasus, the winged horse, doesn’t exist. In believing (P), we need not be believing that there exists a winged horse, Pegasus, that doesn’t exist. To avoid the appearance of selfcontradiction, we could restate (P) as (Q) There is no such winged horse. In the same way, these Actualists would say, we can have some true beliefs about merely possible events, even though there are no such events.

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This reply overlooks the difference between negative and positive beliefs. When we believe that certain things do not exist, this belief could be true even though there are no such things. But for us to have true positive beliefs about certain things, there must be such things. We could not truly believe that ® some horses run faster than others unless there are some horses. I have claimed that (S) when we are deciding what to do, we should try to form true positive beliefs about some events that are merely possible, such as beliefs about the possible outcomes of different possible acts, most of which will not be actual. We could not form such true beliefs unless there are, in the wide sense, such merely possible events. When we claim that there are such events, we do not mean that such events actually occur. As Possibilists, we distinguish between what is actual and what is merely possible. When we are in great pain, for example, our painful conscious state is actual and real. This pain is very different from the merely possible pain that someone who is not in pain might now be in. This great difference can make Actualism seem undeniably true. There may seem to be no sense in which there could be pain or suffering that is merely possible, rather than actual and real. There is, I am arguing, such a sense. We ought, when we can, to prevent suffering. But we can prevent suffering only if there is a sense in which there is some possible suffering that we are preventing. That is why it could not be true that we have prevented the suffering of some rock. But though there is a sense in which there can be possible suffering that we prevent, this sense is very different from the thicker actualist sense in which there is actual suffering that we fail to prevent. That is why we should try to prevent suffering. Only actual suffering matters. Suppose next that I let you die, though there was something that I could have done which would have saved your life. We can claim that (T) though there was this possible act, this act did not exist in the thicker sense of being actual.

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When we make such claims, we need not mean that, since determinism is false, some other act would have been causally possible. It is enough that I would have saved your life if I had chosen to act in this way. For Actualists to reject our view, they must claim that (U) it is never in any sense true that there was something else that we could have done, or any possible suffering that we could prevent, or anything else that might happen, but does not in fact happen. This claim, I believe, is clearly false. Of those who accept Actualism, most assume the Single Sense View. These people believe that, when we say that there are certain things, we must mean that these things actually exist. If that were true, Possibilists could not coherently claim that (V) there are some events that are merely possible, and never actually exist or occur. As I have now argued, since this claim uses ‘there are’ in the wide sense and uses ‘exist’ in the actualist sense, (V) is coherent, true, and not in any way metaphysically misleading. Of those who once defended Actualism, some would now reject (U) and accept (V). Though many people still claim to be Actualists, most of these people, I shall argue, misdescribe their real view. When such people cease to be Actualists, they could revise some of their arguments so that these arguments support a partly similar view. According to this view, which I call Actualist Foundationalism: Though there are some things that are merely possible, and never actually exist, all truths about what is possible are in some way grounded on truths about what is actual. It is of great importance whether this view is true. Many truths about what is possible are grounded, as these people claim, on truths about what is actual. This view could not, I believe, cover all such truths, but I shall not defend this belief here.

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3 We can now turn from events to persisting things, which raise some different questions. In some cases, Possibilists could claim (A) There is a possible person who would become actual if a certain actual ovum and actual sperm cell were united and successfully implanted in some woman’s womb. Actualists might reject (A), claiming instead (B) There actually exists a pair of reproductive cells which, if united, would later become an actual person. Possibilists could reply that, though this pair of cells actually exists, this person does not actually exist, and that, if these cells are never united, this person will never actually exist. It would then be true, I believe, that there was a merely possible person. Though such cases support Possibilism, they also support Actualist Foundationalism. This truth about this possible person is grounded on truths about these actual reproductive cells. Such cases are, in this respect, unusual, and misleading. Some writers suggest that © a possible person is something that is possibly a person. In cases of the kind described by (A), we might claim that there is indeed such a thing. This pair of actually existing cells, we might say, is possibly a person. But many claims about possible people should not take this form. Suppose that, as members of some community, we are choosing between two energy policies which will have signi?cant effects in the further future. We might then truly claim that (D) there are many possible future people whose well-being might be seriously affected by our choice between these policies. But we should not, I believe, claim that there are or will be some actually existing entities which are possibly these people, or which

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might become these people. Rather than claiming ©, we should claim that (E) a possible person is a person who might be, or become, actual. Return to Jane, my imagined 14-year-old girl who intends to have a child. We might truly claim that (F) if Jane has a child now, she would give to this particular child a worse start in life than she could later give to any of the children whom she might have if she waited for several years before having children. This claim is about a very large number of possible particular people, who are the many children some of whom Jane might have in the next ten or twenty years. We should not regard Jane’s possible children as actually existing entities that are not people but that might be people. Such claims should take a simpler form. We should claim that (G) there are many possible children whom Jane might have, in the sense that, (H) of the possible events that might occur, many would involve Jane’s having some particular child. There are these possible people in the sense that there might later actually exist one or more of these people. If it is true that (I) Jane might have a certain child, it is true that (J) there is this possible child whom Jane might have. These are two ways of stating the same fact. When we claim that there are many possible children whom Jane might have, or that there are many possible future people whose well-being might be affected by our choice between two energy policies, we mean that there might in the future actually exist such people.

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Of those who claim to be Actualists, some would accept (I). Plantinga, for example, claims that, as an Actualist, he believes that ‘there are no things that do not exist’. But he also claims that (K) there could exist things that do not actually exist. Suppose that some woman, Sarah, is being treated for infertility, and doctors have obtained from Sarah and her husband an actual ovum and sperm cell. Plantinga would then accept that (L) there could exist the child whom Sarah would have if this pair of cells were united and successfully implanted in Sarah’s womb. What Plantinga rejects is only the claim that (M) there is this possible child whom Sarah could have. Someone might now object: There is no real disagreement here. If we would all agree that this child could exist, it is unimportant whether we claim that there is this possible child. And if we would all agree that we could act in different ways, it is unimportant whether we claim that there are different possible acts between which we must choose. There is, indeed, no real disagreement here. But that is because, though Plantinga claims to be an Actualist, that is not really true. We can ?rst return to Plantinga’s view about states of affairs. Possibilists like me claim (N) There are some possible states of affairs that are never actual. Plantinga claims (O) There actually exist some possible states of affairs that are never actual. These claims do not state signi?cantly different views. Like Possibilists, Plantinga claims that there are some states of affairs that are merely possible, since they are never actual.

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Plantinga might reply that he is defending Actualism. Unlike Possibilists, Plantinga claims that these merely possible states of affairs actually exist. But since we can use the word ‘actually’ in a sense that does not change the meaning of an assertion, Possibilists could restate (N) as (P) There actually are, in the wide sense, some possible states of affairs that are never actual. As this restatement helps to show, (N) and (O) are not relevantly different claims. And Plantinga’s use of ‘actually exist’ may, as I have said, be misleading. If Plantinga claimed that one actually existing state of affairs is that the USA has declared war on China, we might take him to mean that the USA has actually declared war on China. Since Plantinga accepts that there are some states of affairs that are possible but are never actual, he is really a Possibilist about such states of affairs. We cannot defend Actualism by saying that such merely possible states of affairs actually exist. We can now return to possible people. On Plantinga’s view, the word ‘actual’ has different meanings when applied to states of affairs and persisting things. While states of affairs can be actual in the sense that they obtain, persisting things can be actual in the different sense that they exist. Plantinga therefore claims that, though we should believe that (Q) there actually exist some states of affairs that are never actual in the sense that these states never obtain, we cannot coherently believe that ® there actually exist some persisting things that are never actual in the sense that these things never exist. There cannot be such merely possible persisting things, Plantinga assumes, because claims like ® imply that there ‘is a thing such that there is no such thing’. I have argued that, since Plantinga accepts (Q), he is really a Possibilist about states of affairs. But Plantinga might reply that, since he rejects ®, he is an Actualist about persisting things.

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This hybrid view is not, I believe, defensible. In the case described above, Plantinga would accept that (S) if some pair of actually existing cells were united and successfully implanted in Sarah’s womb, a certain child would be conceived and come into existence. Suppose next that Sarah will never actually have this child. Plantinga would then accept that (T) there is a possible state of affairs in which this child would exist, but this state of affairs will never be actual, in the sense that it will never obtain. This claim does not relevantly differ from the Possibilist claim that (U) there is a possible child whom Sarah might have, but this child will never actually exist. These claims are both about some possible child, and tell us that this child will never actually exist. We cannot defensibly accept (T) but reject (U). Plantinga would reject (U) because he believes that such claims involve a contradiction. The words ‘there are’ and ‘exist’, he assumes, both have only the same single sense. If that were true, and we use the word ‘actually’ in the sense that adds nothing, we could restate (U) as (V) There actually exists a possible child whom Sarah might have, but in the same sense of ‘actually exist’ this child will never actually exist. This claim would indeed be a contradiction. As I have argued, however, we should reject the Single Sense View. If we use my de?nitions, and add the word ‘actually’, (U) could be more fully stated as (W) There actually is, in the wide sense, a possible child whom Sarah might have, but this child will never be actual, by existing in the actualist sense.

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Such claims are coherent, and in this imagined case (U) and (W) would be true. Of those who claim to be Actualists, some would reject Plantinga’s view that there exist such abstract entities as merely possible states of affairs. If they considered Sarah’s possible child, many of these people would use one of the following phrases: It might be true that such a child will exist, There might exist such a child, Such a child might exist, Possibly: Such a child will exist, It is possible that such a child will exist, There could be such a child, adding: But there will actually be no such child. But these are not ways of avoiding the Possibilist claim that there are some things that are merely possible. These are merely other ways of stating the fact that (U) there is a possible child whom Sarah might have, but this child will never actually exist. The difference is only that, instead of using the non-modal verb ‘is’ and the modal adjective ‘possible’, these other claims use the modal verb ‘might’, or the modal adverb ‘possibly’, or the modal phrase ‘It is possible that’. These claims would all be about the possible event in which Sarah has this child, and would tell us that this possible event will not occur, so that this possible child will not actually exist. To defend Actualism, we would have to defend the claim that (W) it is in no sense true that there is such a possible event, and such a possible child whom Sarah might have. And (W) would be clearly false. There would be, in the wide sense, both such a possible event and such a possible child. There are other ways in which, in our abstract thinking, we can be misled by such grammatical differences. When we discuss normative

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reasons, for example, we can say that certain facts are reasons to act in some way. This way of talking treats these facts as having the property of being reasons. We can also say that these facts give us reasons to act in this way, thereby treating reasons as entities which are distinct from the reason-giving facts. We can also say that these facts count in favour of acting in this way, thereby treating reasons as activities, or as what facts do when they count in favour of some act. But we need not ask whether reasons really are properties, or entities, or activities. These are merely different ways of making the same claims. Just as it makes no difference whether we say that certain facts are reasons, or give us reasons, or count in favour of some act, it makes no difference whether we say that it might be true that certain people will exist, or that there are these possible people. These are two ways of stating the same Possibilist view. Though we should often try to be more precise, and draw new distinctions, we should also try to avoid distinctions which are merely linguistic. We should not think, like the English speaker: ‘The French call it a couteau, and the Germans call it a messer, but we call it a knife, which is, after all, what it really is’. Nor should we think: ‘When others say that there is some possible child whom Sarah might have, we say that there could be such a child, which is what is really true.’ We should not mistake these differences in wording for differences in meaning, and differences in the beliefs that these different words express.

4 I have defended Possibilism for several reasons. First, if we are Actualists, that may lead us to fail to recognize, or to deny, some important truths. I have claimed that (A) when we are deciding what to do, we should try to form true beliefs about our different possible acts, and their possible effects. Though Actualists deny that there are any such merely possible acts and other events, (A) is so obviously true that Actualists are unlikely to be

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led astray. Things are different, however, when we turn from possible events to possible people. Scanlon writes: … the beings whom it is possible to wrong are all those who do, have, or will actually exist. Many other writers make such claims. These claims may suggest that (B) our acts cannot be wrong unless there is or will be, at some time, some actual person whom we have wronged, and to whom we owed it not to act in this way. And many people have believed that © we cannot be acting wrongly if we know that there will never be any actual person whom our act will affect for the worse, or whose rights our act would violate. These claims are, I believe, mistaken. As I have argued: (D) When we are making certain choices that will have effects in the further future, such as choices between two energy policies, we should consider the possible effects of our different choices, not only on actual future people, but also on the many possible people who, if we had acted differently, would have later existed. And we should believe that (E) our choice of one of two policies may be wrong, because it will greatly lower the future quality of people’s lives, even though we know that, because our choice will affect who it is who later lives, this choice will never be worse for any actual future person. If people in every generation chose such policies, the quality of future lives would steadily decline. The world would be slowly wrecked. To recognize that, in choosing such policies, we have acted wrongly, we must consider the ways in which, if we had acted differently, our acts would have affected some people who never actually exist, but were

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merely possible. It will be easier to ignore such facts if we are Actualists, since we shall then believe that (F) there is no sense in which there are any such merely possible people. If there was no sense in which there are such people, we couldn’t think about them, since such thoughts would be about nothing. Possibilism, I have also claimed, is the thin end of a wider wedge. As the arguments for Possibilism help to show, we should reject the Single Sense View. And if we believe that there are, in the wide sense, some merely possible entities and events, we should believe that there are entities of many other kinds. Some examples are: words, meanings, philosophical theories, nations, human needs, overdrafts, symphonies, courage, ?ctional characters, literary styles, problems, explanations, numbers, logical truths, duties, and reasons. Since such entities are abstract, they do not exist in the narrow actualist sense as concrete parts of the spatio-temporal world. But unlike entities that are merely possible, some of these abstract entities can be claimed to be actual in another, wider sense. There are, for example, many actual words, with actual meanings, and many actual philosophical theories, nations, and symphonies. When people cease to be Actualists, they might turn to another view. According to what we can call Alethic Realism: There cannot be anything that is not part of reality. Nor can any claim be true unless there is some part of reality to which this claim corresponds, and which makes this claim true. Alethic Realists can believe that there are some abstract entities of the kinds just mentioned. These entities are created by us, or depend on the activities of human beings. By using language, we make it true that there are certain actual words, with actual meanings. And there are some

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actual symphonies, theories, and nations because some people have composed these symphonies, developed these theories, or lived together in certain ways. These facts are enough to make these abstract entities part of reality. Alethic Realists can also claim that, since we know how we create these entities, and what their existence involves, these entities are not metaphysically mysterious. There is nothing puzzling in the existence of these words, meanings, symphonies, and nations. Alethic Realism can also be applied to some entities and events that are merely possible. It may seem that, since these entities and events never actually exist or occur, they cannot be in any sense part of reality. But that is not so. What actually happens depends in part on what might have happened. If I lose some game of chess, for example, by failing to make some move that would have won this game, my mistake was a part of reality. Since my actual move was a mistake only because I could have made a different, winning move, the fact that such a move was possible can also be claimed to be a fact about reality. Compared with Actualism, Alethic Realism covers more of the truth. But we ought, I believe, to reject this view. In cases of the kind just mentioned, facts about what is possible depend on facts about what is actual. I could have made some winning move only because the rules of chess allowed such a move, given the actual position of the chess pieces on the board. Similar remarks apply when there is some merely possible person who would have existed if some actual ovum and sperm cell had been successfully united. But there are countless other ways in which things could have gone differently, so that different people and other entities would have existed, and these possibilities cannot all depend on facts about what is actual. There are also countless other more remote possibilities. Reality might have contained entities of very different kinds, and the laws of nature might have been very different. These facts about how reality might have been cannot all depend upon, or be made true by, facts about how reality actually is. Nor can Alethic Realism be defensibly applied to some other kinds of abstract entity, and to some necessary truths, such as certain logical, mathematical and normative truths. One example is (G) there are prime numbers greater than 100.

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Though we created the phrase ‘prime number’, and the meaning of this phrase, we did not create prime numbers, nor did we make (G) true. Even if we had never existed, there would have been prime numbers greater than 100. Similar remarks apply to: (H) No proposition can be both wholly true and wholly false. (I) If P implies Q, and P is true, Q must be true. (J) If we know both that P implies Q, and that P is true, we have decisive reasons to believe Q. (K) We have reasons to prevent or relieve the suffering of any conscious being, if we can. We did not create these truths, nor does their truth in any way depend on us. Since we did not create these necessary truths, or make them true, these truths raise some deep and dif?cult questions. But these truths are not, I believe, metaphysically mysterious. When we claim that there are such truths, we can use the phrase ‘there are’ not only in the wide sense, but also in a narrow non-ontological sense. On the view that I believe we should accept, which I call Non-Metaphysical Cognitivism, these necessary truths are not made to be true by there being some part of reality to which these truths correspond. Since any truth can be said to be really true, there is a trivial sense in which these truths can be said to be about reality. But these truths are not about metaphysical reality, since they do not imply that certain things exist in some ontological sense. This form of Cognitivism cannot con?ict with what Russell calls our ‘robust sense of reality’, since these claims are not about metaphysical reality. When some view has no metaphysical implications, it cannot be open to metaphysical objections. Alethic Realists may object that the words ‘there are’ and ‘exist’ cannot be used in any such relevant non-ontological sense. If we say that there are certain truths, but we deny that these truths exist in

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any ontological sense, our claim may seem to be a contradiction. In considering this objection, it may help to compare Alethic Realism with two other similar views. According to Spatialism: Nothing can exist that is not in space. On this view, there can’t be any thing that isn’t anywhere. But that is not so. Though the Eroica Symphony was composed in Vienna, and has been performed in many places, this symphony itself, as an abstract entity, couldn’t be anywhere. Nor could many other abstract entities, such as the meanings of our words, philosophical theories, jokes, overdrafts, or the rhyme scheme of a Petrarchan sonnet. These entities could not exist anywhere in space. But there are such entities, since there are, in the wide sense, many actual words, meanings, symphonies, and many abstract entities of many other kinds. According to Temporalism: Nothing can exist that is not in time. As Temporalists could point out, though most abstract entities could not exist anywhere in space, some of these entities do exist only at certain times. Symphonies exist only after they have been composed, and before there were any language users, there were no words, or meanings. Other abstract entities, Temporalists might claim, exist at all times. If we use a language with tensed verbs, such as English, we may assume that Temporalism must be true. Temporalists might say that, when we claim that there are prime numbers greater than 100, we must mean that there are now such prime numbers, though we can add that these numbers always have existed, and always will. We ought, I believe, to reject this view. We cannot defensibly claim that, though many abstract entities could not exist in space, all such entities must exist in time. When we claim that there are prime numbers greater than 100, we should use ‘there are’ in a tenseless and timeless sense. Mathematical claims are not about what is always true. We should not, for example, claim that we know some facts about the future, because we know that there will always be prime numbers, and that two plus two will always equal four.

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Return now to Alethic Realism. I have claimed that (L) there are, in the wide sense, certain necessary truths, such as those stated by (G) to (K). Though such truths are about certain abstract entities and properties, they have no ontological implications. These truths are not about metaphysical reality. Alethic Realists might object: (M) When you claim that there are these necessary truths, that must be a claim about reality. To be is to be real. If they are Nominalists, these Realists might claim: (N) Since such truths and abstract entities could not exist in space or time, there cannot be any such truths. Some Platonists would reply: (O) These truths and entities exist in some part of reality that is not in space or time. When they make such claims, these Platonist Realists are, I believe, too close to their Nominalist opponents. These truths and entities don’t have to exist in any part of reality, not even a special non-spatio-temporal Platonic realm. These truths are real only in the trivial sense that they are really true. And, since these truths are necessary, they do not have to be made true by there being some part of reality to which they correspond. This dependence goes the other way. It is reality that must correspond to these truths.

End Notes Some of these notes can be read on their own, since I quote enough of the passages to which these notes apply. In other notes I quote the ?rst words of some block of text and some relevant later words. I give references in a later set of notes. 156 I have learnt a great deal from Allen Wood’s fascinating books. And from the many comments that, with great generosity, he has given me. I shall here discuss only the Kantian part of Wood’s commentary. 158 This claim is another version of my Kantian Contractualist Formula. My version of this formula appeals, not to what it would be rational for everyone to choose, but to what everyone could rationally choose. It would be harder to defend the claim that there is some set of principles that it would be uniquely rational for everyone to choose, so that this choice would be rationally required. 174 As these and many other passages together show … Herman herself elsewhere writes: ‘On a Kantian account, we say that an action is contrary to duty when its maxim cannot be willed to be a universal law’ (Herman (1993) 89). 190 If we appeal. . ‘Then I am not a Kantian’. I am grateful to Herman for correcting several mistakes in an early draft of this chapter. Herman’s commentary makes several other very interesting, subtle, and plausible claims. I do not attempt to discuss these claims, in part because they are not directly relevant to my claims and arguments. 193 Case One involves … So Scanlon’s view implies, implausibly … When Scanlon discusses this example, he suggests that, just as White could reasonably reject any principle that permitted Grey not to give his organ to White, Grey could reasonably reject any principle that required him to make this gift. If that were true, Scanlon writes, there would be ‘a moral standoff’, in which there was ‘no right answer’ to the question of what Grey ought to do (138). This claim, I have argued, understates the problem raised by this example. There would not be a moral standoff, since White could appeal to the Greater Burden Claim, and on Scanlon’s assumptions Grey would have no reasonable reply.

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198 the Telic Priority View … According to Telic Egalitarians, inequality is in itself bad. When bene?ts come to people who are worse off, that is in one way better because it reduces the inequality between different people. This view is open to the Levelling Down Objection, which I discuss in Par?t (1991). Suppose that those who are better off suffer some misfortune, and become as badly off as everyone else. Telic Egalitarians must admit that, on their view, these events would be in one way a change for the better, because there would no longer be any inequality, even though these events would be worse for some people and better for no one. Many people ?nd that hard to believe. The Priority View avoids this objection. Because this view does not assume that inequality is in itself bad, this view does not imply that it would be in any way better if those who are better off became as badly off as everyone else. When they consider the Levelling Down Objection many people conclude that they were not, as they assumed egalitarians, since their real view is that bene?ts or burdens matter more when they come to people who are worse off. 200 Because Utilitarians believe … And, as Scanlon now agrees, we ought to reject these conclusions. Scanlon writes: ‘where the base line is equal, bene?ting only Blue seems objectionable, because all have the same claim to some bene?t’ (in Stratton-Lake (2004) 131)… . These cases show, I believe, that Scanlon ought to drop his Individualist Restriction. My claims apply only to cases in which both (1) the baseline is equal and (2) we can give much greater bene?ts to some people than to others. If the baseline is equal, and we could give equal bene?ts to each person, as is often true, no one could reasonably reject a principle requiring us to give everyone such bene?ts. But cases in which (1) and (2) are true, though they are much less common, help us to see more clearly the implications of Scanlon’s Individualist Restriction. 202 In his book, however … Scanlon imagines a case in we have to choose between these outcomes: Future months of pain for A for B (1) 61 0 (2) 60 2 Scanlon then writes: ‘the way in which A’s situation is worse strengthens her claim to have something done about her pain, even if it is less than could be done for someone else’ (WWO 227). Since he refrains from saying that we ought to give A her lesser bene?t, though A’s situation is much worse than B’s, Scanlon here gives very little weight to distributive principles. 212 We can next ask whether … we would all have stronger reasons to want to be given many more years of life. It might be objected that the burden of

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acting wrongly, if we were in Grey’s position, would outweigh the burden of not receiving the many more years of life if we were in White’s position. But this principle would not impose on us the burden of acting wrongly. We could avoid that burden by giving away our organ, and thereby losing a few years of life. That would be a smaller burden than White’s loss of many years of life. 214 Scanlon now accepts that his Contractualist theory should take some such form. He writes: ‘I should have avoided describing Contractualism as an account of the property of moral wrongness … This claim … can be dropped from my account without affecting the other claims I make for Contractualism’ (Stratton-Lake (2004) 137). He also writes: ‘The fact that an action would cause harm may make it reasonable to reject a principle that would permit that action, and thus make that action wrong in the Contractualist sense I am describing. It is also true that an action’s being wrong in this sense makes it morally wrong in the … general sense of that term’ (Stratton-Lake (2004) 136). For a longer discussion, see Scanlon (2007B). 222 In considering these effects … And all of the children who will be conceived will be born and become adults. To avoid irrelevant complications, we can also suppose that, if we cancel Program A, the children who could have been cured would not later know this fact. 224 the Pareto Principle … This principle implies … This problem is in one way like the Paradox of Voting. According to the Majority Criterion: It is wrong to follow some policy when some other policy is preferred by a majority of the relevant people. When we are choosing between three or more policies, this criterion can fail. Suppose that one third of us prefer A to B and B to C, another third prefer B to C and C to A, and another third prefer C to A and A to B. Two thirds of us prefer A to B, another two thirds prefer C to A, and another two thirds prefer B to C. The Majority Criterion therefore mistakenly implies that, whichever policy we follow, we shall be acting wrongly, since some other policy is preferred by a majority of the relevant people. As such examples show, we should reject the Majority Criterion, which cannot be a fundamental moral principle. (Arrow later widened this conclusion with his famous Impossibility Theorem, but this shows only that there is no good way to choose our social policies if we ignore almost all the relevant facts.)

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… These are unacceptable conclusions … we must revise this view, so that it ceases to have these implications. There is another way to avoid such conclusions. We might claim that, if some act would indirectly cause someone to exist who would have a life worth living, this act would thereby bene?t this person. I defend this claim in RP, Appendix G. According to what we can call the Wide Person-Affecting View: Other things being equal, one of two acts would be wrong if it would bene?t people less. If causing someone to exist can bene?t this person, this view rightly implies that, in Case Four, our three possible acts are morally equivalent. The bene?ts to Tom and Dick of our doing A would be equal to the bene?ts to Tom and Harry of our doing B, which would be equal to the bene?ts to Dick and Harry of our doing C. Though the Wide Person-Affecting View provides one fairly plausible answer to the Non-Identity Problem, this view is irrelevant here. First, if we appealed to this view, we would not be revising but be abandoning the Two-Tier View. The Wide Person-Affecting View has the same implications as the No Difference View. This view implies both that, in Case One, the two medical programs are equally worthwhile, since both programs would give the same sum of bene?ts to future people, and that, in Case Two, we ought to choose Program B, since this program would give greater bene?ts to future people. Second, we are here discussing Scanlonian Contractualism, which appeals to the principles that no one could reasonably reject. Suppose that, in Case Two, we choose Program A, thereby failing to give these greater bene?ts to these future people. We cannot claim that any principle that permits this choice could be reasonably rejected by these people. The people who might have received these greater bene?ts would never actually exist. Scanlon’s Formula condemns some act only when, if we acted in this way, there would be some actual person who could reasonably reject any principle that permits such acts. In Case Two, if we chose Program A, there would be no such people. 228 As I explain in a note … If we do A rather than B, Bernard would lose 50, and there would be an impersonal gain of only 10, so Bernard’s personal loss would not be outweighed. In the same way, if we do B rather than C, Charles would lose 40, and there would be an impersonal gain of only 30, so Charles’s personal loss would not be outweighed. But if we do C rather than A, there would be an impersonal loss of 40 and no personal gain, so this impersonal loss would not be outweighed. The Two-Tier View therefore implies that, whatever we do, we shall be acting wrongly.

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230 On some other versions … who would live for 65 and 35 years. Suppose that our alternatives are these: A Adam lives Bernard lives ? ? for 70 years for 40 years B ? Bernard lives Charles lives ? for 80 years for 20 years C ? ? Charles lives David lives for 65 years for 35 years

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If we do A, Bernard will have a complaint of 40, if we do B Charles will have a complaint of 45, and if we do C no one will have any complaint. The impersonal totals are: A: 110, B: 100, C: 100. If personal complaints count for only a third as much as impersonal losses, the deducted totals would then be: A: 97, B: 85, and C: 100. So Temkin’s view would imply that we ought to choose C. Scanlonians cannot, however, make such claims … Nor would it help to appeal to the non-comparative account of bene?ts and burdens. On this account, A and B would be morally equivalent, since cancelling either program would impose on equal numbers of people the burden of living for only 40 years. Nor would it help to appeal to people’s rights. General people are not individuals … . Kumar suggests that, to solve the Non-Identity Problem, Scanlon should appeal to claims about what could be reasonably rejected, not by particular people, but by a type of person, which Kumar de?nes as a normatively signi?cant set of characteristics (Kumar (2003) 111). But sets of characteristics can’t reject principles, nor could we owe anything to them… . there is no sense in which our doing A was worse for Dick. This point is even clearer when we consider cases in which different numbers of people might exist. Scanlon includes, among the acts that his formula condemns, irresponsible procreation. He may be thinking only of cases like that of Jane, who chooses to have a child when she is too young to give this child a good start in life. But he may also have in mind some of those poor people who have many children, with the result that their children are very badly off. We may believe that it would be better if, instead of having ten children, some couple had only two or three children. But if this couple have ten children, we should not claim that it would have been, in any relevant sense, better for these ten children if there had been only two of them. We ought … to choose Program B. And not merely because of the bad effects on others of there being many people who die at 40 rather than many others who die at 80. There may be other cases … Another example is Murphy’s view about the demandingness of morality. When he asks what we rich people ought to

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give to those who are very poor, Murphy argues that we ought to give our fair share, which is roughly the proportion of our wealth or income that it would be best for people like us to give (Murphy (2000)). On this view, we are not morally required to give more than our fair share, merely because other rich people fail to give what they ought to give. This view is more easily defended if we appeal, not to the principles whose general acceptance would make things go best, but to the principles that no one could reasonably reject. Even if we could make things go better by giving much more than our fair share, the principle of fair shares, we can plausibly argue, could not be reasonably rejected. Some of these people are Nihilists, or Error Theorists … Though these people are often called ‘Cognitivists’, that name is misleading. The word ‘Cognitive’ refers to knowledge, and these people believe that we have no normative knowledge. These people are Semi-Cognitivists in the sense that they accept a Cognitivist account of the meaning of normative claims. (2) this act maximizes happiness … This claim uses the word ‘happiness’ in some naturalistic sense which involves no normative judgment, such as the judgment that egoists or sadists cannot be truly happy. I shall argue later that we ought to reject Metaphysical Naturalism. In Sections 112, 113, 115, and Appendix J. This, I shall argue … My claims would not then be normative in the reasonimplying sense. There are other claims which use normative concepts, but are not in this sense normative. One example is the claim that acts are right if they are not wrong. This claim merely tells us how these concepts are related, and neither states nor implies that anyone has any reason to act in some way. Though in one sense normative, this is not a substantive normative claim. On Williams’s account … we often mean something like … As Williams writes, ‘I think that the sense of a statement of the form ‘A has a reason to do X’ is given by the internalist model’ (Williams (1995) 40, with ‘do X’ in place of ‘phi’). See also ‘Internal and External Reasons’, in Williams (1981). These articles contain many similar remarks. In some passages I shall later quote, Williams discusses how we should de?ne the term ‘reason’ and what claims about reasons mean. He also writes: ‘What are we saying when we say that someone has a reason to do something? … we do have to say that in the internal sense he indeed has no reason to pursue these things … . if we become clear that we have no such thought, and persist in saying that the person has this reason, then we must be speaking in another sense, and this is the external sense … What is that sense? … In considering what the external reason statement might mean … .’ See also the endnote below about page 437.

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270 These we can call the external senses … If we used ‘external’ merely to mean ‘not internal’, there might be other external senses of the phrase ‘has a reason’. Some of these might be naturalistic senses. If Analytical Naturalists were Hedonistic Rational Egoists, for example, they might claim that, when we say that we have decisive reasons to act in some way, we mean that this act would maximize our own happiness. But such senses are seldom proposed, and have little importance. I shall use ‘external reason’ in the inde?nable, irreducibly normative sense. 280 Whenever some natural fact gives us a reason … The same distinction applies when some normative fact, such as the fact that some act is unjusti?able to others, gives us a reason. 294 Williams’s objection should instead be that, as he often says, he doesn’t understand such claims … See also Sections 107?8 below. 295 Most Naturalists assume that, if there are any moral properties and facts, these would have to be natural properties and facts. I use the word ‘property’ in the wide non-metaphysical sense with which we can restate any claim that is, or might be, true. Whenever someone ought to act in some way, for example, we could say either that this act has the property of being what this person ought to do, or that this person has the property of being someone who ought to act in this way. We can similarly say that some fact has the property of being, or giving someone, a reason. For an account of such claims, see Schiffer (2003). 296 This Co-extensiveness Argument … For one version of this argument, see Jackson (1998) 122?129. 297 being the only even prime number cannot be the same as being the positive square root of 4 … When Jackson gives this argument, he claims that, since triangles are equilateral just when they are equiangular, these concepts refer to the same property. When applied to this example, Jackson’s view has some plausibility. These triangles have a single shape that can be described in these two ways. But no such claim applies to the concepts of being the only even prime number and being the positive square root of 4. These concepts don’t refer to a single property which could be described in both these ways. 298 This claim would use a normative concept … This concept is normative because it refers to the property that makes acts right. If this concept were not normative, (G) would not be a normative claim, as (G)’s restatability as (F) shows it to be. 300 These claims are, I believe, seriously mistaken … When certain natural properties of acts would make these acts right, the rightness of these acts is often claimed to supervene on these natural properties. Mental states, it is similarly claimed, supervene on states of the brain. Though these two kinds of supervenience are in some ways similar, they also differ greatly, I believe, in other ways. Normative supervenience should be considered on its own.

Notes to pages 304?314

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304 since identity is a symmetrical relation … It is worth noting that, though identity is a symmetrical relation, claims about the identity of some property often involve an asymmetrical relation. When we claim that heat is the same as molecular kinetic energy, we can add that, when the molecules in some object move more energetically, that’s what it is for this object to be hotter. It is less plausible to claim that, when some object is hotter, that’s what it is for the molecules in this object to move more energetically. Moral Naturalists might appeal to this asymmetry in answering some objections to their view. 307 There is another, more straightforward reason … Since Wide Naturalists would accept this claim, their views do not seriously conflict with NonNaturalist Cognitivism. Some Wide Naturalists might claim that, though normative facts are irreducibly normative, they are like other natural facts in being contingent, empirically discoverable facts about the world. This view, which would seriously con?ict with Non-Naturalist Cognitivism, I shall not consider here. 309 Some legal theorists … claim … that acts cannot be illegal if the law that forbids such acts is morally unacceptable. And some laws may be partly stated in moral terms. 311 It will be enough to consider Searle’s claim that (B) implies ©. One claim implies another when, if the ?rst claim is true, so is the second. When some argument’s premises imply its conclusion, we can derive this conclusion from these premises. 313 Searle’s argument. . If we believe that promises create obligations, but that such sworn oaths do not, this would have to be a substantive moral view, which could not be true by definition. There are other, similar rule-involving social practices. When British children are out walking, and they see a shining conker from a chestnut tree, the ?rst child who points and says ‘Bags I that’ thereby acquires ownership of this conker. Similar remarks apply to adults, as when Columbus said something that meant ‘Bags I this continent for the King of Spain’, or when explorers in the early American West staked out claims to a plot of land. In the case of British children it is also true by de?nition that, when some parent says, ‘All of you should help with the washing up’, the ?rst child who says, ‘Fains I do that’ thereby escapes this obligation. Adults might say ‘You can’t escape such an obligation merely by saying ‘‘Fains I do that’’ ’. Act Consequentialists could similarly say ‘You can’t give yourself an obligation merely by saying ‘‘I promise to do that’’ ’. 314 But (G) is not a normative claim. As I argue on pages 505?6 below. (G) may be in Searle’s sense ‘evaluative’; but this sense, as I explain in a note, is irrelevant here. Searle has in mind the sense of ‘evaluative’ in which, when we say that some knife is sharp or that some poison is effective, we may be evaluating this knife or poison. When we know which non-normative

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Notes to pages 314?349 properties would make something relevantly good, we can recommend this thing by claiming that it has these properties. That does not make such claims normative… . the non-normative fact that is stated by (S). When I claim that this fact is not normative, I do not mean that this fact is unimportant. Nonnormative facts can have great importance. But we should distinguish between (S) itself and the normative fact that (S) is important. The Injustice Argument may seem to be of this kind … Similar remarks apply, I believe, to all such arguments. Things would be different if we had no thin, or purely normative concepts, such as the concepts wrong or a reason. We could not then claim that, though some thick concept applies to some act, that does nothing to show that this act is wrong, or that we have some reason not to act in this way. This may be why Anscombe recommends that we stop using such thin concepts (Anscombe (1958) 13?14)… . justice could not be?as some Pythagoreans were said to have believed? the number 4. But they chose the right number, as when we speak of a square deal. No one could have believed that justice was the number 13. Like Non-Naturalists … Non-Cognitivists believe that normative claims are in a separate, distinctive category, so that natural facts could not be normative. This is how Moore’s famous argument against Naturalism led several people to accept, not Moore’s Non-Naturalist view, but various forms of Non-Cognitivism. Such analogies can seem to support the view that some form of Naturalism is true. These analogies can at least be claimed to show that some form of Naturalism might be true, since these analogies suggest that normative concepts might refer to natural properties. As I have said, however, we don’t need to appeal to such analogies to defend this claim. It is enough to cite the normative concept of the natural property, whichever it is, that makes acts rig