Criminal Justice
Chapter 3: Criminal Law
Law: a rule of conduct generally found enacted in some form of a statute, which
prescribes and/or mandates certain forms of behavior. Regulate relationships between
people and parties.
Rule of Law: (Western Democratic Society) “the supremacy of law” – an orderly society
must be governed by established principles and known codes, which are applied
uniformly and fairly to all of its members. No one is above the law. Those who enforce
it, must abide by it.
The Functions of Law:
1. Laws maintain order in society.
2. Laws regulate human interaction.
3. Laws enforce moral beliefs.
4. Laws define the economic environment.
5. Laws enhance predictability.
6. Laws support the powerful.
7. Laws promote orderly social change.
8. Laws sustain individual rights.
9. Laws redress wrongs.
10. Laws identify evildoers.
11. Laws mandate punishment and retribution.
Major categories of law:
1. statutory law: written/codified law; the “law on the books,” enacted by a
governmental body or agency having the power to make the laws.
codification: the act or the process of putting laws in written form.
This is important because:
1. Everyone has no excuse not to know the law.
2. It helps for consistent enforcement of the law.
3. If there is ever a question of law, it can be looked up.
4. It makes them official and definite.
5. People know exactly what is forbidden and the consequences thereof.
2. case law: the body of judicial precedent, historically built upon legal reasoning and
past interpretations of statutory laws, which serve as a guide to decision making,
especially in the courts. Not all laws exist in the books and can be left up to the
interpretation of the court.
appellate courts – those that hear appeals, Supreme Court is the highest and make
many important case law decisions.
stare decisis – “the decision stands” the legal principle which requires that courts
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be bound by their own earlier decisions and by those of higher courts having
jurisdiction over them regarding subsequent cases or similar issues of law and
fact.
1. vertical: decisions made by a higher court be taken into consideration
by lower courts in their deliberations.
2. horizontal: courts on the same level should be consistent in the
interpretation of the law.
Types of Law:
1. criminal law
2. civil law
3. administrative law
4. case law
5. procedural law
Criminal Law: “penal law” – body of rules and regulations which define and specify
punishment for offenses of a public nature or wrongs committed against the state or
society. Social order lessens whenever a criminal act occurs. In criminal proceedings,
the state, not the individual victim, becomes the plaintiff (injure society’s safety).
The purpose of punishment: to express society’s fundamental displeasure with
the offender and to hold the offender accountable for it.
criminal law

statutory law:
case law:
law on the books, written
precedents and interpretations of the law
law, “codified” criminal
law = penal code

substantive:
procedural:
defines a crime and specifies
specifies acceptable methods for dealing with
punishments
violations of substantive law, esp. in a judicial
setting: Rules of procedure (arrest, trial)
Burden of Proof: Beyond a reasonable doubt (98% sure)
Civil Law: non-criminal; governs the relationships between parties (individuals,
businesses, government agencies). Rules for contracts, divorce, child support, and
custody, wills, property transfers, negligence, libel, unfair hiring practices, hazards, etc.
Seek compensation rather than punishment.
1. tort: a wrongful act, damage, or injury not involving a breach of contract.
Private, civil wrong or injury.
2. contract violation
Parties:
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plaintiff: seeks relief, person bringing on the lawsuit
defendant: against who relief is being sought, person being sued
Consequences: (no jail time, monetary damages)
compensatory damages: money paid to reimburse one for the expenses occurred due to
the tort (hospital bills, cost of damaged property)
punitive damages: those intended to compensate for mental anguish, shame, hurt feelings
experienced by the plaintiff.
Civil Justice Fairness Act – Proposed legislation that limits the allowed punitive damages
to $250,000 or three times the plaintiff’s economic damages from loss of income/medical
expenses (whichever is greater). This was vetoed.
gross negligence: the intentional failure to form a required duty in reckless disregard of
the consequences as affecting the life or property of another. Can result in a civil suit
with punitive damages.
Burden of Proof: Preponderance of the evidence (more likely than not, the event in
question occurred (51% sure).
Double Jeopardy: The prosecution of a person for an offense for which he or she
has already been prosecuted. The Fifth Amendment to the Constitution states that
no person shall “be subject for the same offense to be put twice put in jeopardy of
life or limb.” The double jeopardy clause bars second prosecutions after either
acquittal or conviction (unless waived by appeal, and prohibits multiple
punishments for the same offense.
However, a person found to be innocent in a criminal trial can be sued under civil
law procedure fopr monetary damages without double jeopardy being violated, as
they have different burdens of proof, and a civil trial does not affect one’s liberty.
The cases can have different results (OJ Simpson).
Administrative Law: body of regulations which have been created by governments to
control the activities of industry, businesses, and individuals. Mostly issues settled out of
court.
EX: tax laws, health codes, pollution and waste disposal restrictions, vehicle
registration, building codes, customs, immigration
Procedural Law: body of rules that regulate the processing of an offender by the
criminal justice system. Methods of enforcing substantive law.
1. rules of evidence
2. search and seizure
3. arrest procedures
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General Categories of Crime
1. felonies: serious crimes; a criminal offense punishable by death or incarceration in a
prison facility for at least a year. EX: murder, rape, aggravated assault, robbery,
burglary, arson
2. misdemeanors: minor crimes, punishable by incarceration, in a local facility, for a
period of one year or less or another standard prescribed by statute. Usually punishable
by a fine or supervised probation, need a warrant for the arrest. EX: petty theft (the theft
of little items of no worth), simple assault (victim suffers no serious injury), breaking and
entering, possession of burglary tools, disorderly conduct, filing a false report, disturbing
the peace, writing a bad check
3. offenses/infractions: a violation of criminal law or a minor crime that is ticketable.
Court appearances are waived by paying a small fine, no incarceration. EX: jaywalking,
spitting on sidewalk, littering, traffic violations
4. treason: the act of a US citizen helping a foreign government to overthrow, make war
against, or seriously injure the United States (attempt to overthrow the government of the
society of which one is a member).
espionage: gathering, transmitting, or losing of information related to the national
defense in such a manner that the information becomes available to enemies of
the US and may be used to their advantage.
5. inchoate offenses (incomplete/partial): crimes not fully carried out, but their attempt
is chargeable.
a. conspiracy: when one intends on committing a crime. Plans to commit this
crime with others.
b. attempts at a crime (one not completed during the action due to circumstance)
Features of Crime:
Jurisprudence: philosophy, science, or study of law
What must be proven in court:
1. Actus Reus – “the criminal act” an act in violation of the law; a guilty act
one must commit a voluntary act (in violation of the law) before being subjected
to sanctions.
Includes:
1. omission to act: person in question is required by law to do
something, and does not do it. Ex: Child neglect laws
2. threatening to act: can be a criminal offense
3. attempted criminal activity: even though the act is not
completed, it can still be considered a crime.
4. actual act: actual physical act committed, in violation of the
law.
2. Mens Rea – “the guilty mind”; “criminal intent” the state of mind which accompanies
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a criminal act (the specific mental state of defendant as the crime is being
committed. The extent to which one can be held criminally responsible for
his/her actions depends on this.
Four Types:
1. purposeful/intentional: that which is undertaken to achieve some goal.
- Doctrine of transferred intent: (all U.S. jurisdictions): a person is
guilty of murder even if he/she took aim and shot at the intended
victim and missed, killing someone else instead. The purposeful
intent is transferred to the new victim.
2. knowing: action undertaken with awareness, almost certainty that the
behavior is wrong or harmful.
Ex: airline pilot that lets the flight attendant bring cocaine on a
flight in return for sex. Didn’t intent to smuggle drugs, but knew it
was wrong/harmful.
3. reckless: activity that increases the risk of harm, It is probable harm
will occur. Ex: reckless driving
4. negligent: person should have known better; acts carelessly and
endangers others; below a standard of care, a reasonable person standard.
Ex: Mom leaves infant in a tub of water and he or she drowns.
- Reasonable person standard: used by juries/judges to judge
situations in the criminal justice field  Would a reasonable
person, in the same situation, have known better and acted
differently than the defendant?
* Pure accident can’t serve as a basis for criminal liability. There is no
intent.
* Mens rea is hard to prove; it must be inferred from one’s actions and the
circumstances around the actions.
* Mens Rea ≠ Motive (one’s reason for committing the crime. Motive
need not be proven in court, mens rea does.
* Strict liability offense – An offense that requires no proof of mens rea/
guilty mental state. Only the actus reus is required. It is simply a crime to
do something, even if the offender never intended to violate the law. Ex:
traffic offenses, statutory rape
3. Concurrence: the actus reus and mens rea must occur together for a crime to take
place. One can’t occur before the other.
Ex: One may intend to harm someone, but later, on the way to commit the
crime, an accident happens, harming someone – it is not a crime. There is
no concurrence.
4. Elements of a Specific Offense: the basic components of a crime as defined by the
law. All of these must be proven beyond a reasonable doubt to obtain a conviction.
Ex: First Degree Murder
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Elements:
1. unlawful killing
2. of a human being
3. intentionally
4. with planning (malice aforethought)
* Corpus Delicti – “body of the crime”: Must be proven, as well.
1. a specific crime has occurred
2. a specific person’s criminal act caused the harm or injury
Ex: Arson – Must prove 1. a building was burned; 2. a specific person
caused the burning (not nature or an accident)
Defenses to a Criminal Charge
Defense = evidence and arguments offered by a defendant and his or her attorney to show
why that person should not be held liable for a criminal charge.
1. alibi: the defendant could not have committed a crime because he/she was somewhere
else with someone else at the time of the crime. This must be supported by witnesses and
documentation (Ex: hotel receipts, eyewitness identification, etc.)
2. justification: The defendant admits committing the crime in question, but there was a
valid reason (to avoid a greater evil) for him/her to commit it.
a. self-defense: it was necessary to harm another in order to ensure one’s own
safety in the face of near-certain injury or death. This is only valid where there is
no “path of retreat,” meaning no way to escape the situation, and when
“reasonable force” is used.
-reasonable force: the minimum degree of force needed to protect one’s
self, etc. Deadly force, the highest degree of force, is only reasonable
when the person is faced with deadly force or great bodily harm.
b. defense of others: the alter ego rule: a person can only defend a third party
under circumstances where it would be considered self defense for the third
person. (ie. you can’t defend someone that started the fight or is involved in a
consensual brawl and not be held criminally liable.)
c. Defense of home and property: Only nondeadly force can be used to protect
property.
-castle exception (in some jurisdictions) – a person can use deadly force in
order to protect one’s home, and he or she does not need to attempt an
escape or retreat in this situation.
d. consent: whatever harm was done occurred only after the injured person gave
his or her permission for the behavior in question.
e. resisting unlawful arrest: Most jurisdictions have laws that say a person may
use a reasonable amount of force, not deadly force, to resist an unlawful arrest or
search by a law enforcement officer. The law enforcement officer must first
initiate the force, not the person being arrested/searched. Not recommended.
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3. excuses: The person who engaged in the unlawful behavior was, at the time, not
legally responsible for his or her actions and should not be held accountable under the
law.
a. duress: any unlawful threat or coercion used by a person to induce another to
act in a way he or she otherwise would not. Ex: steal money to pay ransom to a
kidnapper holding someone’s kids
b. age: the defense of infancy includes those under the age of 18. They are
instead charged with a juvenile offense, rather than a crime. Children under the
age of 7 are not even held liable for juvenile offenses.
c. mistake:
i. mistake of law: rarely acceptable as it is your responsibility to know the
law. Ignorance of the law is not an excuse to a crime.
ii. mistake of fact: ex: you take a bag, thinking it was yours and it turns
out to be someone else’s that has contraband in it.
d. involuntary intoxication: when a person is tricked into consuming an
intoxicating substance. Voluntary intoxication rarely works as you know that the
substance produces intoxication and you voluntarily take it.
e. unconsciousness: An individual cannot be held responsible for anything he or
she does while unconscious (sleepwalking, seizures, etc.)
f. provocation: rarely accepted in serious offenses; recognizes a person can be
emotionally enraged by another who intends to elicit such a reaction. If he or she
strikes out, they may be held accountable for a lesser degree of criminality.
g. insanity: (actually used in less than 1% of cases, and only 26% of these were
successful); legal defense, not a psychiatric one; standard used is based upon the
jurisdiction. It is the burden of the defendant to prove he or she is insane as the
courts assume all defendants are sane.
i. M’Naghten Rule: (NJ) people are not guilty of a crime if, at the time of
the crime, they either didn’t know what they were doing or didn’t know
that what they were doing was wrong.
ii. irresistible impulse: (18 states) the person knew what they were doing
and knew it was wrong, but still could not stop themselves from doing this
wrong.
iii. The Durham Rule: Persons are not criminally responsible for their
behavior if the illegal actions were a result of some mental disease or
defect.
The result of successful insanity cases is that the judge orders the person to
undergo psychiatric treatment until cured. Sometimes this time may be longer
than if the person had been imprisoned for the crime.
h. diminished capacity: must show that the defendant’s mental state/mens rea
was impaired at the time of the crime. This will not result in a not guilty finding,
but instead would provide for a lesser charge for the defendant (from first degree
to second degree murder)
4. procedural defenses: claims that the defendant was discriminated against in some way
during the judicial process or that some official procedure was not properly followed and
as a result the person should not be held criminally liable.
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a. entrapment: improper or illegal inducement to crime by agents of
enforcement. The enforcement agents create a crime where their otherwise would
have been none and convinces the defendant to commit a crime that he or she
otherwise would not.
b. Double jeopardy: (5th Amendment to the U.S. Constitution) No one may be
tried twice for the same offense (excludes new trials for hung jury, appeals, civil
vs. criminal cases, and state vs. federal cases).
c. selective prosecution: when people are prosecuted unfairly on the basis of
some discriminatory attribute, such as race, sex, friendship, age, religion, etc.
(protected by the 14th amendment)
d. denial of a speedy trial: (6th Amendment) This is set by law and a trial usually
must occur 90-120 days following arrest, to insure that unconvicted and innocent
people do not sit in jail for an unnecessarily long time.
e. prosecutorial misconduct: the prosecutor behaved in a way that gave the
government an unfair advantage and prejudiced the rights of the defendant.
Prosecutors must uphold certain ethical rules. Ex: permit false testimony, hide
info helpful to the defense, make biased remarks to the jury.
f. police fraud: the police did something wrong (tampered or planted evidence)
5. innovative defenses – describes several types of defenses that can be considered
justification or excuses, but are fairly new defenses, not tried often in the courts.
a. the abuse defense  Battered Women’s Syndrome (BWS): in cases of longterm domestic violence where the woman is unable to escape from the situation.
She is driven temporarily insane and is driven to kill her abusive spouse.
- based on “learned helplessness” – the women are unable to leave the
abusive relationship and feel compelled to resort to violence to escape.
- has been extended to include homosexual lovers, children, husbands, etc.
- chronic abuse sufferers may have to defend themselves, especially if they
are weaker than the abuser. – basis of defense
- Ex: Lorena Bobbitt case (she got off), Lyle and Erik Menendez case
(they were convicted)
b. Premenstrual Syndrome (PMS): This syndrome makes the accused irritable,
aggressive, and confused, and causes a loss of self-control.
- not an officially acceptable defense in American criminal justice, was
used in Britain successfully in 1980.
c. Biological Defenses: a defense related to chemical imbalances in the human
body produced by the defendant’s eating habits (vitamin deficiencies, food
allergies, the consumption of stimulants, like nicotine or caffeine, and excessive
ingestion of sugar.
- Dan White “The Twinkie Defense” – White shot and killed a mayor and
city councilman Harvey Milk. He blamed the killings on the fact that eh
night before he excessively drank Coke and ate Twinkies. The huge
amount of sugar consumed prior to the crime altered his judgment and
ability to control his behavior. He got off on a lesser charge.
- Nicotine withdrawal has also been used to explain violent behavior and
false admissions.
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d. Black Rage: The individual (black person) in question was overcome with
rage resulting from society-wide mistreatment of blacks by whites. Basically a
claim of insanity.
- Colin Ferguson used it to defend why he killed 6 white/Asian
passengers, wounding 19 others, on a train. He was eventually convicted,
because he did not want to admit he may have been insane.
e. Urban Survival Syndrome: a tendency to engage in violence to protect oneself
from being victimized (due to prior victimization or threats, especially those
present on the urban streets). These people believe they must kill to insure their
own survival.
f. Cultural defenses: a defense to a criminal charge in which a defendant’s
culture is taken into account in assessing his/her culpability. Occurs when an
immigrant does something illegal in this country that is legal in his/her country.
- People v. Chen (1989): Chinese immigrant Chen killed his adulterous
wife with a hammer in NYC. In Chen’s Chinese community, it was
culturally appropriate to kill an unfaithful wife. He received a lesser
charge/sentence.
- People v. Kimura (1985): Shamed by husband cheating, she attempted
Japanese honorable suicide by wading into the ocean with her two
children. She was saved and her children drowned. She got off on a
lesser charge instead of first-degree murder.
- People v. Kong Moua (1985): Laotian tribal man was charged with
kidnapping and rape after practicing a Laotian tribal marriage ritual, where
the man appears to forcefully abduct his bride and she fights back. They
are then expected to consummate the marriage under her protests. He
received a light sentence only for false imprisonment.
g. Political defenses: the defendant’s actions stemmed from adherence to a set of
political beliefs and standards significantly different from those on which our
American style of government is based. They question the legitimacy and
purpose of all criminal proceedings against the defendant.
- Zacarias Mooussaoui – a terrorist from 9/11: claimed that he was an
enemy of the U.S. and that we were only using a trial as a sham in our
efforts to kill him. He refused a government appointed attorney, and
represented himself. Not yet been decided.
h. Other Innovative Defenses – constantly emerging
- failure to file syndrome: people who didn’t file income taxes escaped
IRS prosecution by arguing that traumatic life experiences gave them a
fear of forms.
- pseudologia fantastica: compulsive lying condition where the person
feels compelled to tell tales and mix fantasy with facts. (person didn’t get
off)
- Emergence of new defenses, many considered outrageous, could be due
to creative lawyering or used by attorneys that have nothing left to argue.
“new syndrome excuse syndrome” – new excuses are being offered on an
almost daily basis for criminal activity.
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