1 Chapter 4 The Criminal Law. © 2003 Prentice-Hall, Inc. 2 Development of Law Historical Sources Natural law Early Roman law Common law Old and New Testament

1

Chapter 4

TheCriminal

Law

© 2003 Prentice-Hall, Inc. 2

Development of LawHistorical Sources

• Natural law

• Early Roman law

• Common law

• Old and New Testament

• Magna Carta

• Religious belief and practice


Modern Sources of American Law

• U.S. Constitution

• Declaration of Independence

• statutes

• case law

Development of Law


Code of Hammurabi• about 2000 B.C.E.

• developed by King Dungi of Sumner

• adopted by Hammurabi (6th King of Babylon)

• lists crimes and punishments

• concept of “lex talionis”


• Roman law of Twelve Tables• 451 - 450 B.C.E.• response to pressure from plebeians• not satisfied with existing unwritten law• original code written on bronze plaques

Roman Law


English Common Law

• The English common law originated from usage and custom rather than from written statutes. • It is an unwritten body of judicial opinion developed by English courts.


based upon non-statutory

customs, traditions,

and precedents

English Common Law


Roman Law

This system governed by separate comprehensive, systematized codes, which are forward looking, wishing to anticipate all new problems.

Common Law This system governed by laws and precedents, which, if codified at all, simply organize past experiences.

Law and ProcedureLaw and Procedure

Roman Law v. Common Law


Magna Carta• signed by King John

of England- 1215

• basic liberties for all British citizens

• support of individual rights

• concept of “due process of law”


U.S. Constitution

It is the final authority in all questions pertaining to the rights of individuals, power of the federal government and the states to create laws.


Natural Law

• mala in se: Behaviors that are wrong in themselves, i.e., murder, rape, and assault.

• mala prohibita: Behaviors that are wrong only because they are

prohibited by law.


Types of Law

• criminal law

• civil law

• administrative law

• case law

• procedural law


Criminal Law

Crimes injure not just individuals, but society as a whole.


A branch of modern law that concerns itself with offenses committed against society, members thereof, their property, and the social order.

Criminal Law

Another term for criminal law is penal law.


Civil Law

• Civil law covers legislated rules that govern private wrongs.

• An individual is the plaintiff.• A violation of this law is often called a

tort.• Civil law includes breaches of contract,

contested will, trusts, etc.• The result is often loss of money only.


Administrative Law• Rulings are made by

government agencies.• This type of law is not usually

directed at criminal violations

• Regulatory boards are given authority to make rules

and to set standards.


Case Law• The body of judicial precedent

that is historically built upon legal reasoning and past interpretations of statutory laws.

• Case law serves as a guide to decision making, especially in the courts.


Procedural Law• Procedural law is the body of

rules that regulates the processing of an offender by the criminal justice system.

• It includes general rules of evidence, search and seizure, and procedures following an arrest.


Categories of Crime• felonies

• misdemeanors

• offenses

• treason

• inchoate offenses


Felony • It’s more serious

than a misdemeanor.• Felonies are

punishable by a year and a day or more in a state prison.

• Fines can be levied.• Capital punishment

exists in most states for specific felony offenses.


MisdemeanorAn offense, which is punishable by incarceration, usually in a local confinement facility, for a period of which the upper limit is prescribed by statute in a given jurisdiction, typically limited to a year or less.


• It is less serious than a felony.

• It is usually punishable by up to a year in a county jail (some states allow sentences for misdemeanors up to two years).

• Fines can also be levied.

Misdemeanor


Treason

“A U.S. citizen’s action to help a foreign government overthrow, make war against, or seriously injure the United States.”

Also, the attempt to overthrow the government of the society of which one is a member.

It’s the only crime specifically mentioned in the United States Constitution.


Inchoate Offenses • An offense not yet

completed.• An offense that

consists of an action or conduct that is a step toward the intended commission of another offense.


General Crime Features

• actus reus

• mens rea

• concurrence ofactus reus and mens

rea

• causation


Actus Reus • It means“the guilty act.”• Thoughts alone are not

sufficient to make a crime.

• In some instances, speech can constitute a crime even though there is no specific physical action.

• yelling “fire” in a theater


Mens Rea

• “guilty mind”• intent to commit a crime• based on assumption that

people have the ability to make reasonable decisions about right and wrong


Concurrence

A guilty mind and guilty act must occur together to be able to obtain a conviction.


Causation

• It means there is a clear link between crime and harm.

• The offender’s action or

inaction caused harm.


Strict Liability• Occurs in cases where guilty mind is not

required.• justification - Proving intent in these types

of cases is nearly impossible.• purpose - To protect the public.• Some examples include:

• traffic laws • narcotics laws• health and safety regulations


Types of Defenses

• alibi

• justifications

• excuses

• procedural defenses


Excuse• Some particular personal

condition was occurring at the time, such that the defendant should not be held

responsible.

• Judges and jurors must decide if harm committed outweighed the coercive influence.


Excuse: Duress• It’s often called “coercion.”

• Duress is an unlawful threat that induces a person to act in a way they normally do

not act.

• It is often not a useful defense when used to commit serious physical harm.


Excuse: Age• Typically, children under age 7

are deemed not to form reason of intent.

• Therefore, children under age 7 cannot be charged with an offense.

• When individuals are above age 7 and below age 18, they are typically charged as a juveniles.

• When individuals are above age 18, they are charged as adults.


Excuse: Mistakemistake of law: Ignorance of law is no excuse.

mistake of fact: Specific fact about a case is incorrect.


Excuse: Involuntary Intoxication

• Drugs or alcohol may produce intoxication.

• People can be “tricked” into consuming alcohol or drugs.

• It can be used as a defense to

exonerate.


Excuse: UnconsciousnessIndividual cannot be held responsible for anything s/he does while unconscious. It’s rarely used as a defense.

Examples:

• sleepwalking• epileptic seizures• neurological dysfunction


Excuse: InsanityLegal definition of insanity, not a

psychiatric one:Legal definition of insanity, not a

psychiatric one:

• M’Naghten rule• irresistible impulse• Durham rule• substantial capacity test• Brawner rule• guilty but insane• temporary insanity• diminished capacity


Excuse: Provocation

• It’s sometimes used in cases where

a wife kills her husband or

a child kills her father after claiming years of abuse.

• It’s more acceptable in minor offenses.


A statement or contention by an individual charged with a crime that he or she was so distant when the crime was committed, or so engaged in other provable activities, that his/her participation in the commission of that crime was impossible.

Alibi


Justification

A person admits that s/he

committed the crime, however, s/he

believes s/he should not be held

responsible because s/he has a

justification for why s/he did what

s/he did.


Types of Justifications:

• self defense• defense of others• defense of home or property• necessity• consent

Justification


Justification: Self Defense

retreat rule - If the opportunity to escape the situation exists, then the courts require that the victim take that opportunity and flee.

THIS WAY OUT


If the opportunity to flee does not exist, then the victim can use proportionate force to defend him/herself.

Justification: Self Defense


Justification:Defense of Others

You have the option of defending another if the person you are defending is a victim and is free from fault.


Defense of others does NOT include entering an illegal fight to help a family member or friend.

Justification:Defense of Others


Justification:Defense of Home & Property

• Most jurisdictions allow for the defense of property.

• The use of deadly force is not allowed when it comes to the defense of property.


Justification: Necessity

One can commit a crime when the purpose of the action is to prevent even greater harm.


Courts have a difficult time with this defense, especially when it results in the death of an individual.

Justification: Necessity


Justification: Consent

If harm comes to an individual after s/he agreed to participate in the activity, then the question that is raised is:


Has there really been a crime committed if the victim gave her/his consent?

Justification: Consent


Justification:Resisting Unlawful Arrest

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


Excuse: M’Naghten Rule• 1844 - The first person found not guilty

by reason of insanity was Daniel M’Naghten.

• A person is not guilty of a crime if, at the time of the crime, they

either did not know what they were doing, or did not know what they were doing was wrong.


Excuse: Irresistible Impulse

• Defendant knows what he/she is doing, knows it is wrong, but cannot help her/himself.

• Approximately 18 states use this rule.


Excuse: Durham Rule

• created 1871 by New Hampshire Court

• adopted by Washington D.C. judge who made

rule famous (1952)


A person is not criminally responsible for their behavior if their illegal actions were the result of some mental disease

or defect.

Excuse: Durham Rule


Excuse: Brawner Rule• The rule was created in 1972 by

same Washington, D.C. judge who made Durham Rule famous.

• It 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.


• This excuse is possible in 11 states.• The jury must return a finding of “guilty

but mentally ill” if:• every element necessary for a

conviction has been proven beyond a reasonable doubt;

• defendant found mentally ill at time of offense; and

• defendant found NOT to be legally insane at time crime was committed.

Excuse: Guilty but Insane


Procedural Defenses

• entrapment

• double jeopardy

• collateral estoppel

• selective prosecution


• denial of a speedy trial

• prosecutorial misconduct

• police fraud

Procedural Defenses

Documents

1 Chapter 4 The Criminal Law. © 2003 Prentice-Hall, Inc. 2 Development of Law Historical Sources Natural law Early Roman law Common law Old and New Testament