Criminal Law
The Program of Study in Criminal Law will help prepare students to participate in the crucial work of ordering society and protecting the vulnerable. Prosecutors and law-enforcement agents, acting on behalf of the entire community, vindicate the rule of law and the dignity of crime victims. Defense attorneys vigorously work to make sure that both individual rights and limits on government power are respected.
Consistent with the high stakes involved, the criminal law is administered through complex and highly regulated processes in the United States and, in cases involving offenses against international law, in international tribunals, such as the International Criminal Court. Students who are interested in pursuing careers in criminal justice should take an array of courses and clinical offerings designed to develop the knowledge and skills necessary for success in the prosecution and defense of criminal charges.
These offerings include lecture courses and seminars in (1) substantive criminal law and the law of sentencing; (2) criminal procedure and constitutional remedies; (3) the litigation process; and (4) social justice.
Students are also encouraged to participate in one or more clinics or externships involving criminal justice or related issues.
Please explore the sections below:
Foundational Courses
First, students must take the basic required course in Criminal Law. We recommend that before taking additional courses in substantive criminal law (that is courses that consider the rules that define crimes and punishments), students take a basic survey course in criminal procedure, such as Constitutional Criminal Procedure: Adjudication, or Federal Criminal Procedure. These courses are designed to introduce students to the rules that the government must follow in order to charge, convict, and punish persons suspected of criminal activity.
Given the prominent and expanding role that federal law plays in efforts to combat major crimes such as drug trafficking, corruption, and corporate frauds, we also recommend that students take Federal Criminal Law, Federal Criminal Practice, White Collar Crime, or some combination of these courses. Although these foundational courses focus on federal criminal enforcement, they are useful for those who intend to practice in state court as well.
ADVANCED COURSES
Students interested in studying crimes against humanity, or international law more generally, might wish to take International Criminal Law and one or more related courses. Such related courses would include International Law, Introduction to International Human Rights, and Human Rights Practice. Similarly, students with special interests in national security issues might take Law Enforcement & the Challenge of Terrorism or International Law & Use of Force (or both), just as students interested in technology issues or computer crime would do well to take Cyberlaw, Information Technology Law, and related courses.
Many students, however, lack concrete areas of interest within criminal law, especially early in their law school careers. These students should view courses devoted to particular fields of criminal law as opportunities to explore potential areas of interest.
Students who aspire to be prosecutors, public defenders, or defense attorneys in state court should take a range of courses exploring special issues that tend to arise mostly in state criminal prosecutions. These courses would include, for example, Juvenile Law and Law and Mental Health.
Students who intend to practice criminal law plan in medium-to-large law firms that tend to represent business clients rather than individuals are advised to take courses involving fraud and other offenses that typically are charged in corporate criminal prosecutions. A prime example of such a course is White Collar Crime, which explores in detail the criminal liability of corporations and corporate officers for mail and wire fraud and other “white collar” offenses. All students interested in doing criminal defense work in larger law firms would be well-advised to take White Collar Crime or Federal Criminal Law, which covers the most commonly charged fraud crimes. Other relevant courses for these students would include courses like Securities Regulation, basic business courses such as Business Associations, and, depending on student interest, specialized courses like Antitrust Law or Banking Law.
Although this might seem counterintuitive, we recommend that students thinking about white collar defense work at larger firms and federal prosecution jobs take Administrative Law. Particularly at the federal level, an increasing number of prosecutions in the corporate context are premised upon violations of rules, regulations, and licenses issued by administrative agencies. A solid grounding in Administrative Law would thus be valuable to those who anticipate handling corporate criminal cases at the federal level.
Regardless of the type of criminal practice a student intends to pursue after graduation, sentencing will be an important issue. We recommend that students take one or more courses that will expose them to the important and changing law and practice governing the sentencing of convicted offenders.
Federal Criminal Law and Constitutional Criminal Procedure: Adjudication are examples of courses that include significant coverage of the law of sentencing and the federal constitutional requirements applicable to sentencing. In light of current budget pressures that are causing state governments to explore less costly alternatives to imprisonment, students planning to pursue careers in criminal justice (and especially those who are interested in sentencing policy or academic careers in criminal justice) might wish to take Criminal Justice Policy – Restorative Justice, a seminar that explores restorative justice as an alternative to traditional approaches to criminal punishment.
On the procedural side, once students have acquired a basic understanding of the process through which criminal charges are lodged and adjudicated, we recommend that they consider taking Constitutional Criminal Procedure: Investigations, Post-Conviction Remedies, or both.
Constitutional Criminal Procedure: Investigations explores the complicated constitutional requirements that apply to various means by which prosecutors and law enforcement agents obtain evidence against criminal suspects and the remedies that are available when law enforcement violates constitutional limits on searches, seizures, and interrogation. Post-Conviction Remedies canvasses the law governing the availability of federal habeas corpus and other post-conviction remedies as means by which prisoners (and even “enemy combatants” in America’s war against terrorism) can challenge their detention.
Students interested in more in-depth exploration of the remedies that are available for violations of criminal procedure rights might also wish to take Civil Rights and Constitutional Law II. Civil Rights looks at damages and other remedies available under federal law for violations of federal constitutional rights, including the rights of criminal defendants. Constitutional Law II covers concepts, such as equal protection and due process, which are often invoked in criminal prosecutions. It also deepens students’ familiarity with the competing methods and theories of constitutional interpretation, which is quite helpful in criminal practice because the rights of criminal defendants and other questions of criminal procedure usually require constitutional interpretation.
Related Courses
LITIGATION
Along with courses in criminal law and procedure, students interested in criminal prosecution or defense should take at least two courses in the litigation process. Most of these courses are devoted to litigation-related topics and skills in general, as opposed to criminal litigation specifically. One exception is Criminal and Forensic Evidence. Students who want to be prosecutors or defense attorneys should consider taking this course in addition to the basic Evidence course, which we recommend for all students interested in litigation practices.
After taking Evidence, we recommend that students take one or more litigation skills courses. For example, students might decide to take a course in Trial Advocacy, and students interested in appellate practice or building upon their briefing and oral-argument skills should also consider taking a course in Appellate Advocacy. Students who want more intensive opportunities to hone their litigation skills may be interested in taking Trial Advocacy Intensive Workshops & Trials or participating in moot court competitions through Moot Court – Trial, or Moot Court – Appellate. Through these kinds of courses, students will learn the litigation methods and skills that are used in the prosecution and defense of criminal cases at the trial level, on appeal, and on post-conviction review.
Some students (particularly those considering academic careers) might wish to study the role of the judge in the litigation process. These students should consider taking Judicial Process. This seminar course takes a jurisprudential and practical approach to judicial decision-making, exploring how, in a variety of different types of cases, judges reach – and should reach – decisions.
SOCIAL JUSTICE
As the term “criminal justice system” implies, the enforcement of the criminal law is closely tied to broader issues of social justice. Students preparing for careers in criminal justice are therefore encouraged to take at least one course, beyond the required Jurisprudence course, involving social justice concerns.
Given the correlation that exists between crime and poverty – not to mention the special solicitude that Catholics and other people of goodwill have for the least fortunate – we believe that all students interested in state criminal law should participate in Galilee. The goal is for students to understand both the problems facing the poor and the contributions that lawyers can make through pro bono work or public service careers to address their needs. Students who desire to study poverty more comprehensively in a structured academic setting are encouraged to take Law and Poverty. This is an especially worthwhile course for future criminal prosecutors, as an appreciation of the problems facing the poor is critical to the exercise of sound prosecutorial discretion.
More philosophically inclined students may also be interested in courses that undertake broad explorations of the social justice issues that are central (but by no means limited) to the criminal law. For these students, we recommend the Mercy & Justice Seminar. Catholic and other students who are interested in learning more about Catholic teaching on the proper relationship between the individual and the state, on the one hand, and between individuals, on the other, should consider enrolling in courses such as the Catholic Social Thought Seminar.
CLINICS AND EXTERNSHIPS
Clinical courses and externships offer students valuable opportunities to gain real-world experience in criminal cases under the supervision of experienced attorneys and to develop mentoring relationships with prosecutors, defense attorneys, and judges. Clinical courses also allow students to develop the practical lawyering skills that attorneys must master in order to excel in the investigation, prosecution, and defense of criminal charges.
In the Legal Aid I and Ethics courses, students have the opportunity, under the supervision of experienced Notre Dame clinical faculty, to represent indigent clients charged with minor felonies in Indiana state courts. The clinic also has an ethics component in which students learn to navigate ethical issues of particular relevance to criminal defense. Students who enjoy Legal Aid I and wish to continue handling cases for a second semester can do so by enrolling in Legal Aid II.
Legal Externship – Public Defender I is similar to Legal Aid I and II. Externs work under the supervision of local public defenders representing indigent clients in the Trials and Misdemeanor section of the local state court. The course also has an ethics component taught by a faculty member. Students who successfully complete the public defender externship can continue for a second semester by taking Legal Externship – Public Defender II. Another externship offered to students is the Wrongful Conviction Externship, which provides students real-world lawyering experience representing and advising clients believed to have been wrongfully convicted of serious crimes. These lawyering tasks are conducted under the supervision of a staff attorney with the Exoneration Project in Chicago, Illinois.
Students who seek to become prosecutors after graduation also benefit greatly from exposure to defense representation skills. The same basic legal and investigative skills are involved on the defense side as on the prosecution side. In our experience, prosecutors with experience on the defense side may be less likely to be overzealous in their advocacy for the government and more likely to be fair and equitable in their exercises of discretion.
To the extent students have other specialized criminal practice preferences (such as cases involving sex offenses, juveniles, or domestic abuse), we can help them devise their own externships by advising them how to find appropriate professionals in the local community and faculty members to supervise their work. These self-designed externships can be taken either over the summer or during the academic year for volunteer legal work in a court, agency, or law office (public or private).
Students also may want to consider taking a clinic that does not focus on criminal cases yet nevertheless develops skills that are relevant to criminal practice. Two examples are Alternative Dispute Resolution and Negotiation. These clinics involve skills that are involved in plea bargaining between prosecutors and defense attorneys.
By following the course pathways we have recommended, students will graduate with a strong foundation in criminal law and procedure and in the lawyering skills that prosecution and defense work demands. With this foundation, students will be well prepared to perform the important functions that criminal-justice careers require, and to do so in a way that promotes justice for all.
Core Faculty
Gerard Bradley
Professor of Law
Richard W. Garnett
Paul J. Schierl/Fort Howard Corporation Professor
Jimmy Gurulé
Professor of Law
Marah Stith McLeod
Associate Professor of Law
Stephen F. Smith
Professor of Law
O. Carter Snead
Associate Professor of Law
Affiliated Faculty
A.J. Bellia
O’Toole Professor of Constitutional Law
Patricia L. Bellia
William J. and Dorothy K. O’Neill Professor of Law
Paolo G. Carozza
Professor of Law
Concurrent Professor of Political Science
Director, Helen Kellogg Institute for International Studies
Michael Jenuwine
Associate Clinical Professor of Law
William K. Kelley
Associate Professor of Law
Jennifer Mason McAward
Associate Professor of Law
Vincent Phillip Muñoz
Tocqueville Associate Professor of Religion & Public Life
Mary Ellen O’Connell
Robert and Marion Short Professor of Law and
Research Professor of International Dispute Resolution
James H. Seckinger
Professor of Law
Contact
For more information about this Program of Study or the field of Criminal Law, please contact Professor Stephen Smith.