Mainstream and Crosscurrents, Second Edition
Chapter 4
Criminal Law
Development of the criminal law

The development of the criminal law was
episodic, uneven, and political.

The US criminal justice system is a
mixture of other societies' attempts to
control conduct through the criminal law.
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Code of Hammurabi

The laws of the ancient Babylonian king
Hammurabi are the earliest known written
laws.

The laws followed the eye-for-an-eye
philosophy.
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The Magna Carta
“Great Charter”; a guarantee of liberties
signed by King John of England in 1215 that
influenced many modern legal and
constitutional principles.
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Common law

The common law is based on the
decisions of the judiciary, instead of
being specified by a legislature or
constitution.

Common law is based on the doctrine of
precedent.
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Common law
Common law is sometimes called:
 Case law
 Judiciary law
 Judge-made law
 Customary law
 Unwritten law
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Common law
Courts are generally bound by the
decisions of previous courts by the
doctrine of precedent or stare decisis,
the doctrine under which courts adhere to
legal precedent.
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Common law
Four issues guide precedent:
 Predictability
 Reliability
 Efficiency
 Equality
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Sources of law



Constitutions
Statutes
Administrative Rules
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Sources of law
Constitutions

The US Constitution binds
legislators, societal institutions,
and the citizens to a system of
government and laws.

Express the will of the people.
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Sources of law
Constitutions

The US Constitution does not proscribe
many behaviors, but sets out values that the
criminal law cannot abridge.

The Bill of Rights, the first 10 amendments
to the Constitution, dictates the basic
freedoms enjoyed by citizens.
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Sources of law
Statutes
Statute—A law enacted by a legislature.
Legislative bodies have developed the
common law into specific statutes
proscribing criminal behavior.
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Sources of law
Statutes
Published in penal codes, statutes fit
the principles of predictability,
reliability, efficiency, and equality
better than the doctrine of precedent.
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Sources of law
Administrative rules
Health, environment, customs, and parole
agencies have the authority to enact rules
that limit the freedoms of individuals
within their influence.
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Types of law





Criminal law
Civil law
Substantive law
Procedural law
Case law (common law)
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Types of law
Criminal Law
Three criteria determine which behaviors
are made criminal:
 The enforceability of the law
 The effects of the law
 The existence of other means to protect
society against undesirable behavior
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Types of law
Civil law

Cases are between two individuals.

Sentences involve money damages, not
incarceration.

Covers contracts, personal property,
maritime law, and commercial law
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Types of law
Civil law
Tort law covers personal wrongs and
damage and includes libel, slander,
assault, trespass, and negligence.
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Types of law
Civil law
Double jeopardy does not preclude a
victim from suing for private damages
after the criminal trial has concluded.
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CrossCurrents Types of law
Liable, but not guilty

The major difference between civil trials
and criminal trials is the threshold of guilt.

A finding of liability in a civil trial requires a
much lower threshold.

Civil trials can be a way for those who
believe they have been harmed by a
defendant’s action to recoup damages.
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Types of law
Substantive law

Found in the criminal codes of the state
and federal governments.

Specifies which behaviors are defined as
crime.
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Types of law
Procedural law

Specifies how the criminal justice system
may deal with those who break the law.

Specifies rules of arrest, search and
seizure, rights to attorneys, and
attorney/client privilege.
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Types of law
Case law

Depends on the principle of precedent
and influenced by jurisdiction.

Comes from previous judicial decisions.
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Types of crime



Felonies
Misdemeanors
Inchoate offenses
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Types of crime
Felonies

Incarceration is usually more than one
year and may specify life in prison or
capital punishment.

Considered to be the most serious type of
crime
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Types of crime
Misdemeanors

Less serious offenses than felonies and
subject to less severe penalties

Offenders are incarcerated in jails or
stockades rather than prison.
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Misdemeanors vs. felonies
A behavior may be a felony in one
jurisdiction and a misdemeanor, or not an
offense at all, in another.
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Types of crime
Inchoate offenses

Seeks to deter people from planning
and attempting to break the law

Examples involve conspiracy and
attempt
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Features of crime
Three elements must be present in
order for an act to be labeled a criminal
offense.
 The criminal act–actus reus
 The criminal intent–mens rea
 The relationship between actus reus
and mens rea–concurrence
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Features of crime
Actus reus

"Guilty mind"

Occurs when a person engages in a
behavior specified by the criminal law
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Features of crime
Mens rea

"Guilty deed"

Present when a person acts
purposefully, knowingly, recklessly, or
negligently
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Features of crime
Concurrence

Both actus reus and mens rea must be
present at the same time for a behavior to
be considered a criminal offense.

The exception is strict liability,
responsibility for a criminal offense
without intention to break the law.
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Features of crime
Strict liability

Offenses in which the public's welfare is
at issue

Narcotics violations, health & safety
regulations, traffic violations, or sanitation
violations
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Criminal responsibility and criminal defense
Six arguments can be employed
in the defense against a criminal
indictment…
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Criminal responsibility & criminal defense
Six arguments

My client did not do it.

My client did it, but is not responsible
because he/she is insane.

My client did it but has a good excuse
Criminal Justice: Mainstream and Crosscurrents, 2/e
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Criminal responsibility & criminal defense
Six arguments

My client did it but has a good reason.

My client did it but should be acquitted
because the police or prosecutor cheated.

My client did it but was influenced by outside
forces.
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CrossCurrents Criminal responsibility & criminal defense
The Twinkie Defense

Were California voters right to eliminate
the diminished-capacity defense?

Does the fact that the Twinkie defense is a
myth make you think differently about this
case?
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Some legal standards used to determine
insanity




M'Naghten Rule
Durham Rule
Appreciation Test


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Irresistible Impulse
Rule
Guilty but Mentally
Ill
Modern Penal Code
Test
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Questions

What four issues guide precedent?

What are the three sources of law?

What are the first 10 amendments to
the Constitution called?
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