Legal Studies 160 - Midterm 1

What is a narrative?

The representation of an event or a series of events

What does a narrative distinguish?

The event itself and its representation

In a narrative, is the representation always the same as the event itself?

No

What is an event?

A story

Are events factual or imagined?

Both

Are events an action or static?

An action

How many events must take place in an event?

At least 1

What is a story?

Neither words nor images, nor gestures, but the events, situations, and behaviors signified by the words, images, and gestures (the representation of the event)

What is a representation?

Recounting or telling of events

What is the difference between presentation and re-representation?

Presentation is acting

Re-representation is telling

What is narrative discourse?

• The method by which a story is told, encompassing the structure, language, and devices used to present a sequence of events, conveying meaning, and engaging an audience, that results in:

  • 2 kinds of time, 2 kinds of order

  • Time of the plot, time of representation

  • An essay has only 1 temporal dimension

What is narrativity?

Sense that a story is being told

What is a nonreferential narrative?

• Fictitious

• Doesn’t need to refer to the real world (accurately)

• Unverifiable

• Complete

What is a referential narrative?

• Nonfiction

• Are subject to judgments of truth or falsity (affirms accuracy and doesn’t claim knowledge of what cannot be known, like thoughts)

• Verifiable

• Incomplete

Narrative tropes

• Recurring plot device, incident, or character type

• Examples:

  • Incompetent police

  • Amateur detective

  • Unassuming suspect

  • Villainous victim

  • Killer plays with the detective

  • Nosy reporter, neighbor, etc.

  • Early suspect

  • Flawed victim

  • Unreliable narrator

Narrative contestation

• The active competition between different stories or interpretations of events, identities, and issues

• How stories are told

Structure of narrative contestation

Beginning, middle, end

Normalization

Narrative makes things normal for us, makes them plausible, and “belong”

Post hoc ergo propter hoc

“After this therefore because of this”

Framing/frame narrative

Introductory main story for the purpose of setting the stage for organizing a set of shorter stories

Narrative satellites

Narratives that never make it into the sphere of judicially acceptable evidence

Shadow narratives/stories

Story/narrative that is incomplete, missing key elements (“Shadow of possible worlds”)

Paratext

Narrative is not allowed to be part of the long narrative that the jury hears

Reflexive narratives

The dynamic narrative of the trial itself

Motives

• Fills narrative gaps

• Narrativizing personality (motive alone doesn't help)

Caveat

Civil and criminal courts; mens rea and motive

Master plots

• Recurrent skeletal stories, told over and over again

• Examples:

  • Cinderella = neglect, injustice, rebirth

  • Masterplots tend to create credibility

  • Rodney King and O.J. Simpson

Cultural masterplots

Cultural background

Character types

Recurring type of character

Genre

Recurrent literary form (Epic, tragedy; essay [non-narrative])

Diegesis

The relaying of information in a fictional work (such as a film or novel) through a narrative

Extradiegetic level

• External to (not part of) any diegesis

• Existing or occurring outside the fictional world of a story

• Narrator who isn’t part of the story universe

• Outside narrator

Intradiegetic level

• Level of the characters, their thoughts, and their actions

• Existing or occurring within the fictional world of a story

• Narrator is inside the story

Metadiagetic/hypodiegetic level

Diegesis that’s embedded in another one and is often understood as a story within a story, as when a diegetic narrator tells a story

Homodiegetic narrator

A character within the story tells their story

Heterodiegetic narrator

• Narrator who isn’t a character in the story, but in a way hovers above it and knows everything about it

• A narrator who is outside the main story and is not a participant in the events

• Relationship to others:

  • A heterodiegetic narrator is a type of intradiegetic narrator if they are a character but not the protagonist

  • However, often when used, it is meant as a separate category referring to the narrator's role in the story

Narrative blueprint

A preordained mold of a legal story that every criminal justice system provides

Inquisitorial system

• No juries

• Judges

Deviance

• Behavior that violates social norms and arouses negative social reactions

• Examples:

  • Lateness, rudeness, wearing inappropriate (or no) clothing

Crime

• A violation of a statute of a state in which there is a joint (concurrence) operation of an act or omission to act (criminal act) and intention or criminal negligence (criminal intent)

• Behavior that is considered so serious that it violates formal laws prohibiting such behavior

• Any behavior can be made a crime

Criminal elements are outlined in:

Criminal statutes or cases in jurisdictions that allow for common-law crimes

With exceptions, every crime has at least 3 elements:

1. A criminal act, also called actus reus

2. A criminal intent, also called mens rea

3. Concurrence of the 2

Conduct

• Often used to reflect the criminal act and intent elements

• An action or omission and its accompanying state of mind

Attendant circumstances

• Another requirement of some crimes

• Specified factors that must be present when the crime is committed

  • Could include the crime’s methodology, location or setting, and victim characteristics, among others

2 elements of actus reus

1. Human conduct

2. Voluntariness (controllability)

Human conduct

• Speech

• Attempt

• Doing vs. being

• Failure to act can be conduct

Voluntariness (controllability)

Not including a reflex

Mens rea

• State of mind

• Blameworthiness

• “Guilty mind” that accompanies a criminal act

• Complex

  • Varies by crime

Degrees of mens rea

• Purpose

• Knowledge

• Recklessness

• Negligence

Mens rea: purpose

The defendant has a conscious objective to engage in the conduct or achieve a particular result

Mens rea: knowledge

The defendant is aware that their conduct is of a criminal nature or that it is practically certain that their conduct will cause a specific result

Mens rea: recklessness

• The defendant consciously disregards a substantial and unjustifiable risk that their conduct will cause a certain result

• Doing a harmful action

Mens rea: negligence

• The defendant should have been aware of a substantial and unjustifiable risk, but failed to recognize it, and their conduct deviates from the standard of care a reasonable person would observe

• Lack of an action

The concurrence of the 4 degrees of mens rea makes someone:

Guilty

What is the exception to mens rea?

Strict liability

Strict liability

• Offenses hold an individual accountable for a prohibited act regardless of their intent or mental state

• A legal offense for which guilt can be established without proof of the defendant's intent, knowledge, or recklessness

• In these cases, the act (actus reus) alone is sufficient for conviction, such as in traffic offenses, statutory rape, or certain public welfare offenses, as the goal is to protect public safety

Why does strict liability exist?

• Public safety:

  • Strict liability is often applied to offenses deemed inherently dangerous or involving public safety, such as regulating hazardous industries or traffic violations.

• Deterrence:

  • The principle aims to deter harmful behavior by making it easier to prosecute and hold individuals accountable for actions that could otherwise be difficult to prove intent.

• Administrative efficiency:

  • In some cases, it simplifies prosecution by removing the burden of proving a guilty mental state

Examples of strict liability offenses

• Traffic violations:

  • Speeding or driving with worn tires often falls under strict liability, as proof of intent to speed is not required.

• Statutory rape:

  • The age of the victim is the focus, not the defendant's knowledge of the victim's age.

• Possession of illicit substances:

  • Possessing certain drugs or weapons may be a strict liability offense.

• Public welfare offenses:

  • These can include food safety violations, pollution, or certain corporate violations where public safety is at stake

Concurrence

The act and state of mind for any given crime must occur at the same time

Factual causation

“But for the actor's conduct, the harm would not have occurred.

“But for” test of factual causation

• Courts use this test to determine factual causation, asking: "But for the defendant's actions, would the harm have occurred?"

• If the answer is no, then factual causation is established

Factual causation is not given when:

• There is no scientific proof for the connection

• Action was no substantive factor in causing the harm

Legal causation

Focuses on whether the harm was a reasonably foreseeable result of the defendant's conduct

What is the main element of legal causation?

Forseeability

What is the purpose of legal causation?

Limit the scope of factual causation

Intervening/superseding causes

Events that happen between the defendant's actions and the resulting harm can complicate proximate cause

Intervening causes

• An event that occurs after the defendant's action and before the harm, potentially altering the natural course of events

• A new intervening event breaks the chain of causation

Types of intervening causes (2)

• Human agency

• Natural causes

Superseding cause

A particularly severe or unforeseeable intervening event that is significant enough to "break" the causal chain, relieving the original defendant of liability.

Forseeability

• Asks if a reasonable person would have anticipated that the defendant's actions could lead to the harm that occurred

• An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act

What is harm?

Loss, disadvantage, or injury to a victim

Inchoate crimes

• "Incomplete" or "preparatory" offenses that involve planning to commit a crime but not completing it

• These crimes are prosecuted to deter individuals from completing criminal acts, and they criminalize taking steps toward, agreeing to, or encouraging the commission of a crime

• Crime of preparing for or seeking to commit another crime

• Lacks the actual crime

Do inchoate crimes have mens rea?

Yes

Do inchoate crimes have actus reus?

No

Examples of inchoate crimes

• Attempt

• Conspiracy

• Solicitation

What are defenses?

Defense is a factor that justifies or excuses the actor’s responsibility

Types of defenses (2)

1. Justification

2. Excuse

Justification defense

• The act itself is not wrong

• Example:

  • Self-defense

Excuse defense

• The actor cannot be held (fully) accountable

• Examples:

  • Insanity

  • Young age

  • Intoxication

Procedural criminal law

A set of rules governing the process by which criminal law is implemented by the various government agencies

Procedural criminal law balances 2 goals of the criminal justice system:

1. Public safety

2. Individual rights

The Bill of Rights

• The criminal justice process is governed by reasonable and lawful procedures

  • The “minicode of criminal procedure”

• Restriction of governmental action

• Over time, the Bill of Rights became incorporated into state law

• Procedural law is shaped by courts

4th Amendment

Right to privacy

Why is the 4th Amendment/the right to privacy important?

• It's a fundamental protector of personal privacy and liberty against arbitrary government intrusions, stemming from historical abuses under English rule

• Ensures that government searches of a person's property, person, or effects require probable cause and a judicially authorized search warrant, which is crucial for preventing the "evils of general warrants" and safeguarding individual autonomy and security

• Its importance is underscored by its role in allowing for individual freedom and limiting governmental power through judicial oversight.

Who is the 4th Amendment speaking to? Who is the audience? Who is bound by the amendment?

• Binds government agents, not private people

  • Journalists

  • Podcasters

  • Suspicious roommates

  • Influencers

4th Amendment reasonableness clause

• Refers only to searches and seizures

• What is unreasonable?

  • Expectation of Privacy

  • Objective Test

• No expectation of privacy

4th Amendment warrant clause

• If the expectation of privacy is reasonable, then:

  • Warrant

    • Oath or affirmation

    • Probable Cause = more than 50%

    • Particular description of the place to be searched, items to be seized

    • Issued by a “neutral and detached magistrate”

Exceptions to the warrant clause

• Extenuating circumstances

  • Public safety, hot pursuit, safety of individuals

• Plain view

• Traffic stops

• Consent

  • As soon as consent is given, no warrant is needed

  • Ex) Being invited into a house

• Airport/border security

5th Amendment

Right against self-incrimination

Double jeopardy

• Only one prosecution or punishment for 1 offense

• Same offense, only if not an additional element needs to be proved

• Doesn’t apply to different jurisdictions

Privilege against self-incrimination

• Protection of Suspects from physical torture (e.g., Brown v. Mississippi)

• No protection from deceit by the police

• Psychological pressure (not all)

• Supreme Court started applying the “totality of circumstances” test (Fikes v. Alabama)

Miranda v. Arizona

• Right to counsel “suspects”

• 5th Amendment requires that law enforcement officials advise suspects of their right to remain silent and to obtain an attorney during interrogations while in police custody

• Applied to uncharged suspects

• Can be waived

6th Amendment

Speedy, public jury trial by impartial jury, confrontation clause, assistance of counsel

8th Amendment

Prohibition against cruel and unusual punishment

Police procedural

• A subgenre of crime/detective fiction and drama that focuses on the meticulous, step-by-step process of police investigations, rather than solely on the crime or the criminal

• These stories often provide a behind-the-scenes look at police work, including the daily routines, procedures, and challenges faced by law enforcement officers

The Dragnet Era (1950s)

• The TV procedural is born: Inspired by the semi-documentary films, Jack Webb created the radio series Dragnet in 1949, which moved to television in 1951

• Dragnet is arguably the most famous and influential police procedural of all time

Shifting perceptions (1980s)

• Hill Street Blues (1981-1987) introduced a new level of moral complexity and realism to the genre.

• Handheld cameras

• Overlapping, serialized story arcs

• Police officers are portrayed as flawed, human characters struggling with bureaucracy, addiction, and racism in a decaying city

The Modern Era (1990s-present)

• Law & Order and the dual narrative:

  • Beginning in 1990, Law & Order innovated the procedural format by splitting each episode into 2 distinct halves:

    • A police investigation

    • A legal prosecution

• CSI: Crime Scene Investigation (2000-2015) popularized the use of cutting-edge forensic technology

  • The show created the "CSI effect."

Markers of police procedural

• Emphasis on investigation

• Realistic portrayal of police work

• Focus on process

• Story engine

Police procedural’s emphasis on investigation

The core of the story lies in the detailed investigation of a crime, often following detectives as they gather evidence, interview witnesses, and analyze clues.