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CRIMINAL JUSTICE TODAY, 9E PRENTICE HALLBy Frank Schmalleger ©2007 Pearson Education, Inc. 1

Criminal Law

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A law is a rule of conduct, generallyfound enacted in the form of a statute,that proscribes or mandates certainforms of behavior.

Laws channel human behavior while theysimultaneously constrain it, and theyempower individuals while contributingto public order.

Law


Laws maintain order in society. Laws regulate human interaction. Laws enforce moral beliefs. Laws define the economic environment. Laws enhance predictability. Laws support the powerful. Laws promote orderly social change. Laws sustain individual rights. Laws redress wrongs. Laws identify wrongdoers. Laws mandate punishment and retribution.

What Do Laws Do?


Laws are found in statutory provisions andconstitutional enactments, as well as hundredsof years of rulings by courts at all levels.

Statutory law is the written or codified law: the“law on the books,” as enacted by a governmentbody or agency having the power to make laws.

The written form of criminal law is called the penal code.

Where are our laws?


Courts interpret the statutory laws. Case law—law that results from judicial decisions.

Judicial precedent Built on legal reasoning and past interpretations of statutory law Guides decision making, especially in the courts.

Common law—the traditional body of unwrittenhistorical precedents created from everydaysocial customs, rules, and practices, which may besupported by judicial decisions.

Interpreting Statutory Law


The rule of law holds that an orderly societymust be governed by established principlesand known codes that are applied uniformlyand fairly to all of its members.

The Rule of Law

A cornerstone of our Western way of life.


The philosophy of the law. Also, the scienceand study of the law, including the rule of law.

Jurisprudence


Types of Law

Criminal law Civil law Administrative law Case law Procedural law


Criminal LawCriminal law (also known as penal law) is a branch of modern law that concerns itself with offenses committed against society, its members, their property, and the social order.

Crimes injure not just individuals, but society as a whole. Punishment for violators of criminal law is justified by the fact that the offender intended the harm and is responsible for it.


Written Criminal LawThere are two types of written criminal law:

1. Substantive law—describes which acts constitute crimes and specifies punishments for those acts.

2. Procedural law—specifies the rules that determine how those who are accused of crimes are to be treated by the judicial system.


Civil LawCivil law governs relationships between parties and provides a formal way to regulate non-criminal relationships between people, businesses, other organizations, and agencies of government.

A violation of this law is often called a tort. Civil law includes breaches of contract, contested wills, trusts, etc. The result is often only loss of money.

- Compensatory damages- Punitive damages (in cases of gross negligence)


Administrative LawAdministrative law is the body of regulations that governments create to control the activities of businesses, industry, and individuals.

This type of law is not usually directed at criminal violations, though at times criminal and administrative law do overlap. Regulatory boards are given authority to make rules and to set standards. Administrative agencies will sometimes arrange settlements that are binding on those who violated an administrative law.


Case Law

Case law comes from judicial decisions. It is referred to as the law of precedent.

Under stare decisis, the courts recognize previous decisions and precedents to guide future deliberations.

Requires that courts in subsequent cases on similar issues of law and fact be bound by their own earlier decisions and by those of higher courts within their jurisdiction. Creates predictability in the law.


Procedural law is a type of statutory law that regulates the processing of an offender by the criminal justice system. It includes:

General rules of evidenceSearch and seizure Procedures following an arrest

Procedural laws protect the rights of suspects while establishing a clear-cut series of formal proceeding through which substantive criminal law can be enforced.

Procedural Law


General Categories of Crimes

There are many different types of crimes,which vary in severity. Five categories oflaw violations are:

1. Felonies2. Misdemeanors3. Offenses4. Treason and espionage5. Inchoate offenses


Felonies

Felonies are serious crimes that are punishable by a year or more in prison or by death.

Often, convicted felons lose certain privileges, such as being able to practice medicine or carry a gun.


Misdemeanor

Misdemeanors are less serious crimes that are punishable by up to a year in a local correctional facility.

Most misdemeanants receive a fine and probation.


Offenses

Offenses are violations of the criminal law.

Though technically all crimes are offenses, the term can also be used specifically to refer to minor violations of the law that are less serious than misdemeanors. Another word for such minor law violations is infraction.


Treason and EspionageTreason and espionage are among the most serious felonies.

Treason refers to a U.S. citizen’s action to help a foreign government overthrow, make war against, or seriously injure the United States. Espionage is similar, but can be committed by non-citizens as well. It refers to gathering, transmitting, or losing information relating to national defense in such a manner that the information becomes available to enemies of the U.S. and may be used to their advantage.


Inchoate Offenses

Inchoate offenses are offenses not yet completed.

Consists of an action or conduct that is a step toward the intended commission of another offense. Examples: conspiracies and attempts.


General Features of Crime

The essence of crime consists ofthree elements:

1. Actus reus (the criminal act)2. Mens rea (a culpable mental state)3. Concurrence of the two


The Criminal Act (Actus Reus)

Actus reus—the guilty act There has to be an act. Thoughts alone are not sufficient to constitute a crime. To be something (like a drug addict) is not enough. In some instances, speech can constitute a crime even though there is no specific physical action (i.e. yelling “fire” in a crowded theater when there is no fire).


A Guilty Mind (Mens Rea)

Mens rea refers to a person’s mental stateat the time the act was committed.

There are four levels of mens rea:1. Purposeful2. Knowing3. Reckless4. Negligent

Mens rea is not the same as motive.


Strict Liability and Mens Rea

Strict liability offenses are a special category of crime that require no culpable mental state.

The purpose of these absolute liability offenses is to protect the public.

Examples include:• Traffic laws • Narcotics laws• Health and safety regulations


Concurrence

Concurrence requires that the guilty mind and guilty act occur together for a crime to take place.


Other Features of a CrimeTo fully appreciate contemporaryunderstanding of crime, some scholarsrecognize five additional principles ofcrime:

1. Causation2. Resulting harm3. Legality principle (includes the notion that ex post facto laws are not allowed)4. Punishment principle5. Necessary attendant circumstances


Elements of a specific crime are the essentialfeatures of a given crime, as specified by law orstatute.

For example, the elements of first-degree murdermight be: 1) an unlawful killing, 2) of a humanbeing, 3) intentionally, 4) by another person, and5) with malice.

To convict someone of a particular crime, eachelement must be proven beyond a reasonabledoubt.

Elements of a Specific Crime


The Corpus Delicti of a Crime

Corpus delicti literally means the “bodyof crime.”

A person cannot be tried for a crimeunless it can first be proven that:

A criminal law has been violated, and A person is criminally responsible.


Types of Defenses to a Criminal Charge

Those who are charged with a crime typicallyoffer some defense attempting to show whythey should no be liable for a criminal charge.

There are four broad categories of defenses:1. Alibi2. Justifications3. Excuses4. Procedural defenses


Alibi

An alibi is a statement or contention by the defendant stating that he or she could not have committed the crime in question because he or she was somewhere else at the time of the crime.


Justification

With justification defenses, defendants admit committing the offense, but believes that they should not be held criminally responsible because of a legally sufficient justification for their actions (lesser of two evils).Examples: Self-defense NecessityDefense of others ConsentDefense of home and property

Resisting unlawful arrest


Self-defense makes the claim that it wasnecessary to inflict pain on another to ensureone’s own safety in the face of near-certaininjury or death.

Retreat rule—If the opportunity to escape exists, then the courts require that the victim take that opportunity and flee. If the opportunity to flee does not exist, then the victim can use reasonable force to defend herself.

Self-Defense


You may use reasonable force to defendothers who are or who appear to be inimminent danger.

Sometimes called the alter ego rule. Defense of others does NOT include entering an illegal fight to help a family member or friend.

Defense of Others


Most jurisdictions allow for the use ofreasonable, non-deadly force in defense ofone’s property.

If that property is one’s home, the castleexception to the retreat rule applies.

It is not necessary to retreat from one’s own home before resorting to deadly force in the face of an immediate threat. A “home” is one’s dwelling, whether owned, rented, or borrowed.

Defense of Home and Property


One can sometimes violate the law whenthe purpose of the action is to preventeven greater harm.

Courts have a difficult time with thisdefense, especially when it results in aperson’s death.

Necessity


If harm comes to an individual after sheagreed to participate in the activity, thenthe question that is raised is this:

Was a crime committed if the victim gave her consent?

Example: victim dies during “rough sex.”

Consent


A person has the right to resist arrestif the arrest is unlawful.

Resisting Unlawful Arrest


ExcusesWith excuse defenses, defendants admit committing the offense, but believe that they should not be held criminally responsible because of some personal condition or circumstance at the time of the act.Examples:

Duress ProvocationAge Insanity

Mistake Diminished capacity

Involuntary intoxication Mental incompetence

Unconsciousness


Duress is an unlawful threat or coercionthat induces a person to act in a way theynormally would not act.

Often not a useful defense when serious physical harm ensues.

Duress


Age

Age is an excuse defense commonly called “infancy.” It is rooted in the belief that children cannot logically reason until around age seven. Therefore, only older children may be held responsible for crimes.


Mistake

Two types of mistakes serve as defenses: 1. Mistake of law

- Rarely acceptable2. Mistake of fact

- Understanding of facts is incorrect


Involuntary Intoxication

Sometimes, people are tricked into consuming intoxicating substances.

Drugs or alcohol (though being “tricked” into consuming alcohol may be difficult to prove)


Unconsciousness

A person cannot be held responsible for anything he or she does while unconscious.Examples:

Sleepwalking Epileptic seizures Neurological dysfunction


Provocation

Provocation recognizes that a person can be emotionally enraged by another who may intend to elicit just such a reaction.

It is more acceptable in minor offenses. Sometimes used in cases where a wife kills her husband or a child kills her father after claiming years of abuse.


M’Naghten ruleIrresistible impulseDurham ruleSubstantial capacity testBrawner ruleGuilty, but mentally illTemporary insanityDiminished capacity

InsanityInsanity is a legal definition, not a psychiatric one. Several different interpretations of insanity exist, for example:


Standards for Insanity Determinations by Jurisdiction

Source: Bureau of Justice Statistics, State Court Organization 1998.


M'Naghten Rule

According to the M'Naghten Rule a person is not guilty of a crime if, at the time of the event, they either did not know what they were doing, or did not know that what they were doing was wrong.


Irresistible Impulse

… defendant knows what he is doing and knows that it is wrong, but cannot help himself.


Durham Rule

… a person is not criminally responsible for their behavior if their illegal action was the result of some mental disease or defect.


Brawner Rule

The Brawner Rule places responsibility for deciding insanity squarely on the shoulders of the jury.

The jury decides if a defendant can be justly held responsible for a criminal act.


Guilty but Mentally IllThe public is not always satisfied that justice has been served in cases where the defendant was determined not criminally responsible due to insanity. “Guilty but mentally ill” was created in response to this frustration. This can be established if:

1. Every element necessary for a conviction has been proven beyond a reasonable doubt;

2. Defendant is found mentally ill at time of offense; and

3. Defendant is found NOT to have been legally insane at time crime was committed.


Temporary Insanity

Offender claims to only have been insane at the time of the offense.


The Insanity Defense under Federal Law

The federal Insanity Defense Reform Act (IDRA) was passed in 1984. IDRA places the burden of proof of insanity on the defendant. Insanity is defined as:

a condition in which the defendant can be shown to have been suffering under a “severemental disease or defect” and as a result, “was unable to appreciate the nature and quality or the wrongfulness of his acts.”


Consequences of an Insanity Ruling

An insanity ruling is not an “easy way out.” The judge may order the person to undergo treatment until he or she is cured.


Diminished Capacity

Diminished capacity, or diminished responsibility, is based on claims of a mental condition that may be insufficient to exonerate the defendant of guilt but that may be relevant to specific mental elements of certain crimes or degrees of crimes.


Mental Incompetence

Sometimes courts find suspects “incompetent to stand trial.”

as a result of mental illness, defect, or disability, a defendant in incapable of understanding the nature of the charges and proceeding against him or her, of consulting with an attorney, and of aiding in his or her own defense.


Procedural DefensesWith procedural defenses, defendants claim that they were in some way discriminated against in the justice process or that some important aspect of official procedure was not properly followed in the investigation or prosecution of the crime charged.

Examples: Entrapment Denial of speedy trialDouble jeopardy Prosecutorial misconductCollateral estoppel Police fraudSelective prosecution


Entrapment

Entrapment occurs when agents of law enforcement improperly or illegally induce a person to commit a crime that he or she would not otherwise have committed.


Double Jeopardy

The Fifth Amendment prohibits double jeopardy. A person cannot be tried twice for the same crime.

Double jeopardy does not apply: In cases of trial error When there’s been a hung jury When it has been declared a mistrial

One may still be tried: In both federal and state courts In both civil and criminal courts


Collateral Estoppel

Similar to double jeopardy. Facts that have already been determine by a “valid and final judgment” cannot become the object of a new litigation.


Selective Prosecution

Based on the Fourteenth Amendment’s equal protection clause, selective prosecution may be used in cases where more than one person was suspected but not actively pursued.


Denial of a Speedy Trial

The Sixth Amendment guarantees the right to a speedy trial.

The federal government and most states have laws (speedy trial acts) that set a reasonable period for a trial to be considered speedy. If the limit is exceeded, the person is set free and no trial can occur.


Prosecutorial Misconduct

Acts of prosecutorial misconduct are those undertaken by prosecutors that give the government an unfair advantage or that prejudice the rights of a defendant or a witness.


Police Fraud

Police fraud include allegations that the police violated the law, as with planting evidence.

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