History of Criminal Law
The first civilizations generally did not distinguish
between civil law and criminal law. The first written
codes of law were designed by the Sumerians.
Around 2100-2050 BC Ur-Nammu, the NeoSumerian king of Ur, enacted the oldest written legal
code whose text has been discovered: the Code of
Ur-Nammu although an earlier code of Urukagina of
Lagash ( 2380-2360 BC ) is also known to have
existed. Another important early code was the Code
Hammurabi, which formed the core of Babylonian
law. Only fragments of the early criminal laws of
Ancient Greece have survived, e.g. those of Solon
and Draco.
Cont……………

In Roman law, Gaius's Commentaries on the Twelve
Tables also conflated the civil and criminal aspects,
treating theft (furtum) as a tort. Assault and violent
robbery were analogized to trespass as to property.
Breach of such laws created an obligation of law or
vinculum juris discharged by payment of monetary
compensation or damages. The criminal law of imperial
Rome is collected in Books 47-48 of the Digest.[3] After
the revival of Roman law in the 12th century, sixthcentury Roman classifications and jurisprudence
provided the foundations of the distinction between
criminal and civil law in European law from then until
the present time.
Cont…………….

The first signs of the modern distinction between crimes
and civil matters emerged during the Norman Invasion
of England. The special notion of criminal penalty, at
least concerning Europe, arose in Spanish Late
Scolasticism (see Alfonso de Castro), when the
theological notion of God's penalty (poena aeterna)
that was inflicted solely for a guilty mind, became
transfused into canon law first and, finally, to secular
criminal law. The development of the state dispensing
justice in a court clearly emerged in the eighteenth
century when European countries began maintaining
police services. From this point, criminal law had
formalized the mechanisms for enforcement, which
allowed for its development as a discernible entity.
What Is Criminal law?

Criminal law refers to:-
-The branch of modern law that concerns itself with
offenses committed against society, its members, their
property, and the social order.
-The body of rules and regulations that define and
specify the nature of and punishments for offenses of a
public nature or for wrongs committed against the
state or society. Also called penal law.

Penal code refers to:
The written, organized, and compiled form of the
criminal laws of a jurisdiction.
What Is Crime?

1.
2.
3.
4.
5.
An intentional act in violation of the criminal law committed
without defense or excuse, and penalized by the state.
An act in violation
Of a criminal law for which
A punishment is prescribed;
The person committing this action must have intended to
do so
And to have done so without any legally acceptable
defenses or justifications
Cont…..


Mala in se: Crimes that are considered bad in of
themselves
Mala Prohibita: Crimes that are considered crimes
because we have placed restrictions on them
Cont…..

MALA INSE VS MALA PROHABITA:
While crimes are typically broken into degrees
or classes to punish appropriately, all offenses
can be divided into 'mala in se' and 'mala
prohibita' laws. Both are Latin legal terms,
mala in se meaning crimes that are thought to
be inherently evil or morally wrong, and thus
will be widely regarded as crimes regardless
of jurisdiction.

Mala in se offenses are felonies, property crimes, immoral
acts and corrupt acts by public officials.
Cont…………….

Mala prohibita, on the other hand, refers to
offenses that do not have wrongfulness associated
with them. Parking in a restricted area, driving the
wrong way down a one-way street, jaywalking or
unlicensed fishing are examples of acts that are
prohibited by statute, but without which are not
considered wrong. Mala prohibita statutes are
usually imposed strictly, as there does not need to
be mens rea component for punishment under those
offenses, just the act itself. For this reason, it can be
argued that offenses that are mala prohibita are
not really crimes at all.
Cont…..
The Need for Criminal Law:
 helps to keep order in society
 penalties help to deter (prevent) people from committing
crimes
 emphasizes prevention and penalties
 does not place much emphasis on compensating victims
for the losses suffered because of a crime
The Nature of Criminal Law



parliament decides what is a crime and regularly passes laws
to change the Criminal Code
Criminal Code reflects the values of society
reform of the Criminal Code usually reflects a shift in values
and may occur because of public pressure
Objective of criminal law

Criminal law is distinctive for the uniquely serious potential
consequences or sanctions for failure to abide by its rules.
Every crime is composed of criminal elements. Capital
punishment may be imposed in some jurisdictions for the most
serious crimes. Physical or corporal punishment may be
imposed such as whipping or caning, although these
punishments are prohibited in much of the world. Individuals
may be incarcerated in prison or jail in a variety of conditions
depending on the jurisdiction.
Cont……….

Confinement may be solitary. Length of
incarceration may vary from a day to life.
Government supervision may be imposed, including
house arrest, and convicts may be required to
conform to particularized guidelines as part of a
parole or probation regimen. Fines also may be
imposed, seizing money or property from a person
convicted of a crime.
Limitations on the Criminal Law
1. Substantive due process: There are limits to what
conduct the law may seek to prohibit
2. Forbids passage of laws that infringe on the rights of
individuals


free speech
assembly
3. Over- breadth doctrine: Laws are unconstitutional
when they fail to narrowly define the specific behavior
to be restricted
Cont…………
4.Void for vagueness: laws are unconstitutional if they
fail to clearly define the prohibited act and the
punishment in advance
5. Fair notice: letting people know what is and is not
permitted
6. Must not restrict due process: laws must be
enforced fairly and non-arbitrarily
7. Must not restrict equal protection: laws cannot
restrict the rights of members of suspect classifications
Cont…………
8.Cruel and unusual punishment: punishments must be
proportional to the crime
9.Ex post facto laws: people cannot be penalized for
behavior which was not illegal at the time they acted;
penalties cannot be increased after the crime has been
committed

ex post facto laws do apply retroactively if they are
beneficial
10.Bills of attainder: laws that impose punishment
without trial
Elements of Criminal Offenses








Elements must be present for criminal liability to
attach
Actus reus
Mens rea
Concurrence
Causation
Harm
Principle of Legality
Principle of Punishment
Actus Reus (Criminal Act)




A:An act in violation of the law. Also, a guilty act.
The guilty act; three forms:
Voluntary bodily movements
An omission in the face of a duty to act




failure to perform a legal duty
Threatening to act. Attempting criminal activity
Conspiring to commit a crime; and failure to prevent serious
harm when a special relationship exists
Possession

if the person has some knowledge that their possession is
illegal
Mens Rea (Criminal Intent)
Mens rea refers to: The state of mind that accompanies a
criminal act. Also, a guilty mind.
 The guilty mind: Elements of purpose, knowledge,
negligence, recklessness

 Purposefully
committed a criminal act
 Knows of the illegality of the act
 Criminal negligence is the deviation of what a reasonable
person would have done.
 Criminal reckless is “consciously disregarding a substantial
and unjustifiable risk.
Cont…………..
Reckless behavior refers to:
Activity that increases the risk of harm.
 Criminal negligence refers to:
Behavior in which a person fails to reasonably perceive
substantial and unjustifiable risks of dangerous
consequences.
 Motive refers to
A person’s reason for committing a crime.
For most crimes there is a motive and it has to be
accompanied by a guilty state of mind

Concurrence



The union of the criminal act and the criminal intent
(actus reus and mens rea)
Concurrence refers to:
The coexistence of (1) an act in violation of the law
and (2) a culpable mental state.
Causation
The criminal act is the act that is the cause of the harm
Two types:
1. Factual cause: “but for” the actor’s conduct the harm
would not have occurred.
In other word: Proximate cause---”but for” the actions of the
defendant, the harm would not have occurred.
2. Legal cause: consequences of an act which are not
reasonably foreseeable)predictable) to the actor
(intervening causes) relieve the actor of some degree of
criminal liability.
Liability differences lead to different penalties

Harm
The result of the act, the injury to another or to society
 Harm to a person or property
 The degree of the harm done – stole $5000.00 rather
than $500.00
 Hit a person in the back of their head with a tire iron

--He/she dies vs.
--He/she is knocked unconscious
General Considerations






Crimes are made up of elements
All elements of a crime must be proven in court for a
person to be convicted of that crime
Example – Elements of Robbery
1. the taking and carrying away of goods or money
2. the taking from someone’s person
3. use of force or intimidation
Cont………….



Element (of a crime) refers to:
In a specific crime, one of the essential features of that crime, as
specified by law or statute.
Example: Murder
 An unlawful killing
 Of a human being
 Intentionally
 With planning (or “malice aforethought”)
Strict Liability and Mens Rea
Strict liability refers to: Liability without fault or intention. Strict
liability offenses do not require mens rea.
Strict liability: imposes accountability without proof of criminal
intent in situations where society deems it fair to do so. The classic
example of a strict liability law is that a cashier does not need to
know that he is selling alcohol to a minor to be found guilty
Based on the presumption that causing harm is in itself
blameworthy.
Other Example - Traffic violations - I need not know what the
speed limit was; or
---that I was not paying any attention and have no idea how
fast I was going; or,
---that my speedometer was off.

Parties to Crimes
There are also four types of parties to
crimes:
1. A principal: is the person who commits the
crime.
2. Accomplice: is someone who helps
another person commit a crime
3. An accessory before the fact: is someone
who helps plan a crime or orders the crime
but is not there at the time the crime is
committed.
4. An accessory after the fact: is a person that
helps the principal or an accomplice avoid
being captured or escape.

The Corpus Delicti of a Crime
Corpus delicti refers to:
The facts that show that a crime has occurred.
 A person cannot be tried for a crime unless it
can first be shown that the offense has
occurred.


That a certain result has been produced.

That a person is criminally responsible for its
production.
Preliminary Crimes
•





Preliminary crimes, are behaviors
that happen before a crime is
committed but are a crime themselves:
certain behaviors are take place before
the commission of a crime, but are crimes
themselves
Solicitation
Conspiracy
Attempt
All of these behaviors can be punished
even if the planned crime never occurred
Solicitation
Solicitation


Most states make it illegal to solicit (ask, command,
urge, or advise) another person to commit a crime
Even if the person refuses to commit the crime,
soliciting someone is still a crime.
What is wrong with this picture?
Conspiracy


Conspiracy is an agreement between two or more
persons to commit a crime
Making conspiracy illegal is meant to prevent other
crimes and to strike against criminal activity by
groups
Attempt


In most states an attempt to commit a crime is a
crime itself
To be guilty of the crime of attempt one must both
intended to commit a crime and taken some
substantial step toward committing the crime
General Categories of Crime

Felonies

Misdemeanors

Treason and espionage

Inchoate offenses
Felonies
Felony refers to:
A criminal offense punishable by death or by
incarceration in a prison facility for at least one year.
 There is a move to a scheme of classifying the
seriousness of felonies
 Crime classified as a felony in one part of the
country may be a misdemeanor in another.

Misdemeanors(misdhimeenar)
Misdemeanors refer to:
An offense punishable by imprisonment (, usually in a local
confinement facility, for a period whose upper limit is
prescribed by statute in a given jurisdiction, typically one
year or less. Or a crime that is not very serious
Most receive suspended sentences involving a fine and
supervised probation.
Normally, an officer cannot arrest for a misdemeanor
unless it was committed in the officer’s presence.

Offenses
Offense refers to:
A violation of the criminal law.
 Infraction refers to:
A minor violation of state statute or local ordinance
punishable by a fine or other penalty or by a specified,
usually limited, term of incarceration.

Treason and Espionage(esbiinooj)
Treason refers to:
the crime of being disloyal to your country or its
government, especially by helping its enemies or trying to
remove the government using violence.
A Somali’ citizen’s actions to help a foreign government
overthrow, make war against, or seriously injure the Somali
people.”
Espionage refers to: The “gathering, transmitting, or losing”
of information related to the national defense in such a
manner that the information becomes available to enemies
of the Somalia and may be used to their advantage, or
(the activity of secretly finding out secret information and
giving it to a country's enemies=spying).

Inchoate Offenses
Inchoate offense refers to:
An offense not yet completed. Also, an offense that consists
of an action or conduct that is a step toward the intended
commission of another offense.




Conspiracy
Attempt
Solicitation
Types of Defenses to a Criminal Charge
Defense is a response by the defendant which allows them to
avoid criminal liability
 Defense (to a criminal charge) refers to:
Evidence and arguments offered by a defendant and his or
her attorney to show why the defendant should not be held
liable for a criminal charge.
Categories of defense:
 Alibi
 Excuses
 Justification
 Procedural defenses

Types of Defenses to a Criminal liability
A. ALIBI
Alibi refers to:
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
or her participation in the commission of that crime was
impossible.
An alibi is supported by witnesses and documentation –
hotel receipts, eyewitness identification
 Affirmative defenses: defendant admits that they committed
the act, but deny criminal liability
 Shifts both the burden of production and persuasion to the
defense (preponderance of the evidence)
B. JUSTIFICATIONS
Justification refers to:
A legal defense in which the defendant admits to
committing the act in question but claims it was necessary in
order to avoid some greater evil.
Example: a firefighter who sets a “control” fire to create a
firebreak to save the town; The setting of the fire is arson,
but the intent was to save the town.
Categories of justifications:
 Self-defense
 Consent
 Execution of public duties
1 . Self-Defense





Use of force to repel an imminent, unprovoked
attack, in which they reasonably believed that they
were about to be seriously injured
May only use as much force as is necessary
Retreat doctrine: a person must retreat rather than
use deadly force if doing so is possible
Castle doctrine: persons attacked in their home need
not retreat
Can also apply to the defense of others and
property
Cont…………




You must use only the force necessary to protect
yourself, your dwelling, your property, or to prevent
a crime.
Deadly force can only be used to protect you from
imminent death or bodily harm.
You must not have provoked the attack, and there
must be no alternative.
You must have a reasonable belief that death or
bodily harm will otherwise occur.
2. Consent


Persons may consent to suffer what otherwise would
be an objectionable injury
Consent must be voluntary, knowing, and intelligent
3. Execution of Public Duties
Agents of the state are permitted to use reasonable
force in the lawful execution of their duties
C. EXCUSES


Excuses – the person who engaged in the
unlawful behavior was, at the time, not
legally responsible for his/her actions
Recognized excuses include:
 Duress
- Involuntary
 Intoxication
 Age
- Unconsciousness
 Mistake
- Provocation
 Insanity
-Diminished capacity
 Mental incompetence
 Necessity
1. Duress


Situations involving the threat of serious, imminent
harm to oneself, where the act is less serious than the
threatened harm
The wrongful threat of one person induces another
person to perform an act that she or he would
otherwise not perform.
 you
help the friend to commit a robbery as he
threatens to kill you and your family.

The threat must be immediate and inescapable
2. Intoxication



Voluntary and Involuntary
Voluntary never leads to acquittal; may only
mitigate
Involuntary may work as a defense as the person is
not responsible for their actions
3. Age (infancy):
Persons below a certain age lack the capability to
form mens rea.
Under a certain statutory definition you do not meet
the maturity level to make the decisions necessary to
commit a crime.
4. Insanity

Insanity is a legal defense based on claims of mental
illness or mental incapacity.
- M’Naghten rule: A rule for determining insanity,
which asks whether the defendant knew what he or
she was doing or whether the defendant knew that
what he or she was doing was wrong.
 Irresistible impulse:
 The defendant knew what he or she was doing and
that it was wrong, but could not stop the act.

Cont……
Durham rule: A person is not criminally
responsible for his or her behavior if the person’s
illegal actions were the result of some mental
disease or defect.
 Substantial capacity test



Found in the Model Penal Code, it suggests that
insanity should be defined as the lack of a
substantial capacity to control one’s behavior.
Brawner rule: Places responsibility for deciding
insanity squarely with the jury.
Cont……
Guilty but mentally ill (GBMI)


Every statutory element necessary for a conviction
has been proved beyond a reasonable doubt.

The defendant is found to have been mentally ill at
the time the crime was committed.

The defendant was not found to have been legally
insane at the time the crime was committed.
Cont……




Other insanity defenses include:
Temporary Insanity – Insane only at the time of the
criminal act
Diminished Capacity – Used not to be declared not
guilty, but a lesser sentence; from Murder 1st degree
to Murder 2nd
Mental Incompetence – Incapable of understanding the
charges against them, consulting with attorney, or in
aiding in their own defense
5. Mistake


Ignorance of the law is not a valid excuse
Mistake of fact – getting into a car that looks just
like yours and putting the key in the ignition and it
works and you drive away is not a crime.
6. Necessity (Lesser evils)
A defense against criminal liability in which the
defendant asserts that the circumstances
required her or him to commit an illegal act.
 Justifiable if harm avoided by your illegal
conduct was greater than that sought to be
prevented in the offense charged
 Violating a restraining order to save your
former spouse from drowning would avoid the
greater evil

D. PROCEDURAL DEFENSES
Procedural defense refers to:
A defense that claims that the defendant was in some
significant 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.

Categories of procedural defense:


It is claimed that the defendant’s due process rights
were violated
Such as:
 Double
jeopardy
 police fraud
 selective prosecution
 denial of speedy trial
 Prosecutorial misconduct
Cont……
Entrapment refers to:
An improper or illegal inducement to crime by agents
of law enforcement.
 When police deceives defendant into wrongdoing
 Defendant would not otherwise have committed
crime
 Police cannot “plant the idea” in defendant
 Defense used in some undercover drug cases
CONT……….
Double jeopardy refers to:
A common law and constitutional prohibition against
a second trial for the same offense.
Categories of Crime




Crimes against the person
Crimes against property
Crimes against society
Crimes against morality
I.
Crime against the person
Homicide and Manslaughter
 Homicide means the killing of another human being




what is a human being?
When is someone alive or dead?
What types of homicide deserve punishment?
3 forms of criminal homicide:



murder
manslaughter
negligent homicide
1. Murder





Common law: the killing of another person
with malice aforethought
Model Penal Code: murder is a killing which
occurs
1) purposefully, 2) knowingly, or 3) recklessly
First-degree murder: deliberate and
premeditated
Second-degree murder: any killings that are
intentional but not premeditated or planned
2. Manslaughter

Voluntary
an intentional killing which occurs under a mistaken
belief that self-defense is needed
 or in response to adequate persuasion while in the
sudden heat of passion


Involuntary

an unintentional killing occurs as a result of a
reckless act
3. Negligent Homicide


An unintentional killing in which the defendant
should have known that they were creating a
substantial risk of death by their conduct
Such conduct deviated from the ordinary level of
care owed to others
4. Felony Murder


An individual is held liable for an unintended
killing which occurs during the commission of a
dangerous felony
No requirement of intent to either kill or inflict
serious harm
5. Assaultive Offenses

Direct harm to a person inflicted by the actor
include:




assault and battery
robbery
sexual offenses
child sexual abuse
6. Assault and Battery

Common law:



Modern assault and battery:


assault: an attempt or a threat to inflict immediate
harm
battery: an unjustified, offensive physical contact
assault and battery have been merged as
“assault”
Aggravated assault: serious injury or assault with
an item
7. Sexual Offenses



Rape
 common law: carnal knowledge by a man of a
woman who is not his wife, forcibly and without her
consent
 modern day: eliminated marital rape exception,
neutralized gender specificity, relaxed resistance
requirements, and created rape shield laws during
criminal court
Child sexual abuse
Death penalty cannot be used in rape cases, except
in some states where capital punishment for raping
children is allowed
8. Arson




Any willful or malicious burning or attempting to
burn, with or without intent to defraud, a dwelling
house, public building, motor vehicle or aircraft,
personal property of another, etc.
First degree: burning of an occupied structure
Second degree: burning of an unoccupied
structure
Third degree: burning of personal property
II. Crimes Against Property



Burglary
Trespass
Theft
1. Burglary




The unlawful entry of a structure to commit a
felony or theft. The crime of getting into a
building to steal things.
Seventeenth century: the breaking and entering
of the dwelling of another at night with the
intention of committing a felony inside the
dwelling.
Today: burglary can occur during the day
Not entry alone -- must be unlawful entry
accompanied by intent to commit another crime
inside
2. Theft Offenses

Crimes against property (theft) are more common
than crimes against the person
3. Larceny/Theft



The unlawful taking, leading, or riding away of
the possession or constructive possession of
another
Larceny is graded depending on method of
taking and the value of the property taken
Grand theft vs. petty theft (felony and
misdemeanor)
4. Robbery



The taking or attempted taking of anything of
value from the care, custody, or control of a
person or persons by force or threat of force or
violence and/or putting the victim in fear.
Often classified as a violent crime
Extortion: a taking of property accomplished by
the threat of future harm to person, property, or
reputation
Crimes against public order and Morality

Crimes against public order are those in which the
injury is to the peace and order of society




disorderly conduct
unlawful assembly
vagrancy
Crimes against morality are those in which the moral
health of society is injured



adultery
prostitution
Obscenity(sexually offensive language or behavior,
especially in a book, play, film etc.).