Chapter 4
The
Criminal
Law
1
Development of Law
Historical Sources
• Natural law
• Early Roman law
• Common law
• Old and New Testament
• Magna Carta
• Religious belief and practice
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Development of Law
Modern Sources of American Law
•
•
•
•
U.S. Constitution
Declaration of Independence
statutes
case law
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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”
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Roman Law
•
•
•
•
•
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
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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.
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English Common Law
based upon
non-statutory
customs,
traditions,
and
precedents
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Roman Law v. Common Law
Law and Procedure
Roman Law
Common Law
This system governed
by separate
comprehensive,
systematized codes,
which are forward
looking, wishing to
anticipate all new
problems.
This system governed
by laws and
precedents, which, if
codified at all, simply
organize past
experiences.
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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”
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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.
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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.
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Types of Law
• criminal law
• civil law
• administrative law
• case law
• procedural law
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Criminal Law
Crimes injure
not just
individuals,
but society
as a whole.
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Criminal Law
A branch of modern law that
concerns itself with offenses
committed against society,
members thereof, their
property, and the social order.
Another term for criminal law
is penal law.
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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.
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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.
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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.
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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.
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Categories of Crime
• felonies
• misdemeanors
• offenses
• treason
• inchoate offenses
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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.
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Misdemeanor
An 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.
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Misdemeanor
• 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.
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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.
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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.
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General Crime Features
• actus reus
• mens rea
• concurrence of
actus reus
and mens rea
• causation
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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
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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
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Concurrence
A guilty mind
and guilty act
must occur
together to be
able to obtain
a conviction.
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Causation
• It means there is a clear
link between crime and
harm.
• The offender’s
action or
inaction caused
harm.
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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
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Types of Defenses
• alibi
• justifications
• excuses
• procedural defenses
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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.
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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.
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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.
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Excuse: Mistake
mistake of law: Ignorance of
law is no excuse.
mistake of fact: Specific fact
about a case is incorrect.
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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.
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Excuse: Unconsciousness
Individual cannot be held responsible
for anything s/he does while
unconscious.
It’s rarely used as a defense.
Examples:
• sleepwalking
• epileptic seizures
• neurological dysfunction
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Excuse: Insanity
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
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Excuse: Provocation
• It’s more acceptable in
minor offenses.
• It’s sometimes used
in cases where a
wife kills her
husband or a child
kills her father
after claiming
years of abuse.
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Alibi
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.
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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.
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Justification
Types of Justifications:
•
•
•
•
•
self defense
defense of others
defense of home or property
necessity
consent
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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
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Justification: Self Defense
If the opportunity to flee
does not exist, then the
victim can use proportionate
force to defend him/herself.
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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.
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Justification:
Defense of Others
Defense of others does NOT
include entering an illegal
fight to help a
family member
or friend.
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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.
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Justification: Necessity
One can commit a crime
when the purpose of the
action is to prevent
even greater harm.
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Justification: Necessity
Courts have a difficult
time with this
defense, especially
when it results in the
death of an individual.
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Justification: Consent
If harm comes to an
individual after s/he
agreed to participate
in the activity, then
the question that is
raised is:
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Justification: Consent
Has there really been a
crime committed
if the victim gave
her/his consent?
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Justification:
Resisting Unlawful Arrest
A person has the right to
resist
arrest if the
arrest is
unlawful.
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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.
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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.
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Excuse: Durham Rule
• created 1871 by New
Hampshire Court
• adopted by Washington
D.C. judge who made
rule famous (1952)
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Excuse: Durham Rule
A person is not criminally
responsible for their
behavior if their illegal
actions were the
result of some
mental disease
or defect.
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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.
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Excuse: Guilty but Insane
• 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.
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Procedural Defenses
• entrapment
• double jeopardy
• collateral estoppel
• selective prosecution
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Procedural Defenses
• denial of a speedy trial
• prosecutorial
misconduct
• police fraud
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