What purposes or functions does the law serve?◦Enforce social control ◦Enact justice ◦Express public opinion and morality ◦Deter criminal behavior ◦Punish wrongdoing ◦Maintain social order ◦Restore social relations ◦Help establish a just society

Section 9.94A.010 of the Washington State Criminal Code: The purpose of criminal justice is to:

1. Ensure that punishment is proportionate to the seriousness of the offense

2. Promote respect for law by providing punishment that is just

3. Have similar punishments for similar offenses4. Protect the public5. Offer offenders an opportunity to improve

themselves (rehabilitation)6. Make frugal use of the state’s resources

Law enables and also restricts government authority and power

Law changes over time, it has a history Law is a public decision: by legislatures,

courts, administrative agencies, public demands (moral entrepreneurs)

Law is not self-executing: it is a human process - legal words have to be interpreted and applied

Substantive criminal law: law that defines crime and punishment (penal

codes) spells out the powers and authority of CJ

officials establishes penalties for crime the government deals with crimes, even

those against persons (victims cannot take the lake into their own hands - have to take their case to the government which then deals with the offenders)

Procedural law The rules designed to implement

substantive law (code of criminal procedures)

Is based on Bill of Rights Defines justice Requires due process in criminal justice

decision-making Limits power of government Protects individual rights

Civil law: Law governing phases of human

enterprise, including commerce, family life, property transfer, and regulation of interpersonal conflict;

Deals with conflicts between individuals or groups

State/government merely provides the arena and legal rules for arguing and resolving inter-personal conflicts

Babylonian Code of Hammurabi (2000 B.C.) Mosaic Code of the Israelites (1200 B.C.) Roman Twelve Tables (451 B.C.) Justinian’s Corpus Juris Civilis German Wergild Canon (Church) Law State centered law: common law in

England; civil law in Europe

The USA was a British colony: followed British legal traditions

Common Law: Incorporated customs, traditions, practices, and common behavior into a standardized law.

Legal practices and sayings under common law: ◦ Stare Decisis: To stand by decided cases.

Decisions in earlier cases become the standard by which subsequent similar cases should be judged.

◦ Sine lege, sine poena: no punishment without a law; conduct not prohibited by law is allowed

◦ Mala in se: crimes that are inherently evil (i.e. murder)

◦ Mala prohibita: prohibited wrongs (failure to pay taxes)

Why stare decisis, or precedent? In common law, courts have great power They are the ultimate interpreters of the

law, including its constitutional standing Stare decisis/precedent developed to

ensure consistency and continuity in how common law was interpreted by the courts

Constitutional laws and provisions: Bill of Rights

Common law practices (e.g., contempt of court)

Statutes written by legislatures (the most common source of law)

Case decisions, most importantly those by the Supreme Court

Administrative rules and regulations

Ex Post Facto Laws◦ Punish conduct committed before passage of the

law criminalizing that conduct◦ Makes a crime more serious and authorizes

greater punishment than the law existing at the time of the act

◦ Makes it easier to convict the offender than the law existing at the time of the act

Bill of Attainder◦ A legislative act punishing someone for treason

without a trial◦ Punishing someone for conduct committed by

someone else (e.g., a member of the family – “corruption of blood”)

Felony: Serious crime punishable by imprisonment in a penitentiary or death.

Misdemeanor: A less serious crime punishable by fine or imprisonment for less than a year.

Infraction: Violations of a city or county ordinance normally punished by a fine. Some states consider infractions to be civil rather than criminal.

Actus reus◦ An illegal act◦ A failure to act when the law requires you to do so◦ Act must be voluntary◦ Negligent acts can result in criminal liability

Mens rea ◦ Guilty mind or intent. The mental element of a

crime◦ Intent is implied if the results of an act are certain

to occur.◦ Crimes may require different levels of intent

ranging from purpose (homicide) to negligence (manslaughter – a reasonable person should have know that someone could be killed by one’s conduct)

Connection between act (actus reus) and harm done

The illegal act must be the cause of the harm

Exceptions to mens rea: strict liability offenses:◦ Illegal acts that do not require a showing of intent

Examples:◦ Speeding◦ Serving a minor alcohol because he/she looked

older

A person can commit an act that would ordinarily be a crime but they are not held criminally liable because there is a recognized defense or justification for their act under the law.

Criminal defenses are a core aspect of common law thinking.

Most criminal defenses are based on the mens rea element in definitions of crime.

Ignorance or mistake◦ As a general rule ignorance of the law is not a

defense.◦ Mistake of fact may be a defense if it shows a lack

of intent. ◦ Examples

Taking someone else’s coat when you leave a restaurant because you believed it was yours

Taking a suitcase from the airline belt, which looks just like yours, but which does not belong to you

Insanity◦ Relies on a legal rather than medical definition◦ Defendants who are legally insane are found not

guilty by reason of insanity.◦ Insane persons lack the capacity to form legal

intent, or mens rea.◦ Cannot distinguish between right and wrong, or

cannot control their conduct

Intoxication◦ Voluntary intoxication is not normally a defense.◦ Involuntary intoxication may be a defense

E.g., someone gave you a drink you did not know or could not reasonably know contained alcohol.

Age◦ A child is not criminally responsible for actions

committed at an age that precludes a full realization of gravity of certain types of behavior.

◦ Under the common law a child under the age of seven was presumed to be incapable of forming intent.

◦ Today state statutes establish the age of responsibility.

Consent◦ A person may not be convicted of a crime if the

victim consented to the act. A forcible rape does not occur if person consents

to sexual relations – it is love But a statutory rape does occur, even if the parties

consent, because the law assumes not all persons (juveniles, mentally challenged, intoxicated persons) are competent to give consent.

◦ Competent to give consent means voluntary and informed consent (understanding the consequences of consenting)

Self-defense◦ Must have acted under reasonable belief that

he/she was in danger of death or great harm, and had no means of escape

◦ May only use such force as is reasonable necessary to prevent personal harm or imminent harm to others

◦ Recent changes in state law have made it easier to claim self defense E.g., “stand your ground” laws mean you do not

have to attempt to escape to argue self defense E.g. “make my day laws” mean you can shoot

someone who you think threatens you in your home – you did not know the person was delivering pizza and got the address wrong

◦ The threat must be immediate But hard to define (e.g., battered women who kill

their spouses while they are asleep)

Entrapment◦The police may not induce someone to

commit a crime they otherwise would not have done through the use of traps, decoys, and deception.

◦The motive for committing a crime originates with the police, not the offender

◦But police may provide someone with the opportunity to commit a crime. Setting up a sting operations means gives someone a

chance to commit a crime, not the motive to commit it

Duress◦ Person is forced to commit a crime in order to

prevent death or serious physical harm to themselves or someone else E.g., being told to rob a store or a family member will

be hurt. The threat of duress must be reasonable

◦ Generally may not claim duress as a defense or justification to the crime of murder.

Necessity◦ In order to prevent a greater harm a crime is

committed. Must be able to show that any reasonable person would have done so E.g. someone without a cell phone breaking into a

closed store to call an ambulance◦ Generally does not apply to social or moral

agendas Shutting down nuclear power plants or abortion

clinics

The federal and state governments consistently make efforts to reform the law to ensure it reflects the needs of society.◦ Advances in technology or new social factors

require creation of additional laws E.g., computer crimes or child pornography on the internet

◦ Changes in society may dictate decriminalization or criminalization of certain acts E.g., stalking

◦ Defenses and justifications undergo similar changes.

Underneath What brought about this new law? And why

now?

Substantive criminal law primarily defines crimes.

Procedural criminal law consists of the rules and procedures that govern the pretrial processing of criminal suspects and the conduct of criminal trials.

Main source of procedural law is the Bill of Rights, especially amendments four, five, six, eight and fourteen to the Constitution.

4th Amendment: Regulates searches and seizures. 5th Amendment: Protects against self-incrimination,

double jeopardy, and guarantees right to grand jury. 6th Amendment: Right to a speedy and public trial by

an impartial jury, right to counsel, notice of charges, and confrontation of witnesses.

8th Amendment: Prohibits excessive bail, excessive fines, and cruel and unusual punishment.

14th Amendment: makes Bill of Rights applicable to the states. Equal protection under the law.

Due Process of the Law◦ Found in both the 5th and 14th Amendments◦ Refers to the essential elements of fairness

under law◦ Substantive due process protects against laws

that are unfair.◦ Procedural due process ensures no one is

deprived of life, liberty, or property without proper and legal criminal process.

Equal Protection of the Law Found in the 14th amendment Law cannot treat people in same

situations or for the same conduct differently, on the basis of race, gender, or other group memberships recognized as “suspect” in law (religion, national origin, etc)

Prohibits discrimination and arbitrariness by practitioners in how the law is applied

Found in 4th and 5th Amendments No intrusion by police into privacy of

persons or property without proper legal cause (search and seizure of evidence, warrant requirement)

Persons in police custody must be informed of their right against self incrimination (Miranda warning); confessions cannot be compelled

Notice of charges – accusation A formal hearing The right to counsel/representation Opportunity to respond to charges Opportunity to confront and cross-examine

witnesses Free from self-incrimination – “take the fifth” Opportunity to present one’s own witnesses A decision made on the basis of substantial

evidence and facts produced at hearing Written statement of reasons for the decision An appellate review procedure

Found in 8th Amendment Punishment cannot be cruel and

unusual by prevailing moral standards of the society

Convicted offenders under control of the state (probation, parole, prison, jail) are entitled to minimal conditions of human dignity (safety, food, health care, access to communications, practice of established religion, access to rehabilitation services)

Guarantees equal protection of the law and due process

Passed after the civil, applied to federal cases only

Was applied to state and local courts (“incorporated” into state law) by the Supreme Court, mainly during the 1960s

Big case: Mapp v Ohio, 1961 (applied the exclusionary rule to state courts)

Other Bill of Rights protection incorporated piecemeal to state levels