Criminal Law
1. Two functions of criminal law
2. Type of conduct that should be a crime
3. Theories of Punishment
4. Structure of Crimes
5. Defenses to Crime
Two functions of Law
Maintain public order and protect citizens
Protect citizens from repressive state powers
1. Functions of criminal law
Maintain public order and protect citizens by prohibiting conduct that
harms (or threatens to harm) the public safely
Protect citizens from repressive state powers by assuring that the
accused has certain rights
2. What type of conduct should be a crime?
Prohibit conduct that harms (or threatens to harm) the public safety
Should crimes be limited to conduct that concerns the community as a
whole?
What kinds of conduct concern the community as a whole?
Should all immoral things also be crimes?
Liberal morals
Conservative morals
Community morals
Religious morals
Which religion?
What keeps us in line (other than Crim.
Law)?
Morality Religion
Social convention Fear of civil lawsuits
Peer pressure
Is the fact that something is immoral reason enough to
criminalize it?
Religious sources for rules of behavior
Ten Commandments
Bible
Koran
Torah
Tells us that some things are “wrong” or “bad” or “immoral”
But many of those rules don’t concern the public safety or the
community as a whole
e.g., respect the Sabbath day, don’t commit
adultery, don’t eat certain foods
The “Harm Principle”
“The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others.” -- John Stuart Mill (1806-73) very influential English
philosopher, political economist, politician
Balance individual freedom against the common welfare
Something shouldn’t be criminal just because it violates morality or
paternalistic ideas, but only because the act is harmful to society.
“Minimalist Principle”
Criminal Law should be used only as a last resort
Only serious offenses that are adverse to society should be
criminalized, not trivial offenses
Adverse=harmful, unfavorable, preventing success of
Averse=having a strong dislike or distaste
Criminal cases are brought by the gov’t,
not the victim
If there is a crime that can also be a tort, like battery, the
victim can separately pursue an action for compensation
against the defendant
Smith v. Jones
Gov’t is not seeking compensation for the victim, but to call
the criminal to answer for his crimes
State v. Jones, or Country v. Jones, or Crown v. Jones
Criminal Law
1. Two functions of criminal law
2. Type of conduct that should be a crime
3. Theories of Punishment
4. Structure of Crimes
5. Defenses to Crime
Remember that
First function of criminal law is to maintain public order and protect
citizens by prohibiting conduct that harms (or threatens to harm) the
public safely
Remember what the second function is?
Protect citizens from repressive state powers by assuring that the
accused has certain rights
Law protects certain rights of the accused
Right to trial, right to an attorney, etc.
Criminal Procedure
3. Theories of Punishment
Utilitarian Theory focuses on social benefits that punishment can bring
to society, through:
Deterrence
Rehabilitation
Deterrence
If you know you’ll go to prison, maybe you won’t commit
a crime
General Deterrence
Individual Deterrence
Rehabilitation
Prevent future crime by convicted criminals by offering them treatment
and training so they can reform
Recidivism– Tendency of a convicted criminal to re-offend (re-violate
the law)
Retributive Punishment Theory
Retribution= Revenge
Defendant deserves a punishment
“An eye for an eye” in Biblical times
Is this actually Justice or is it just Vengeance?
Can the evil that occurred by removed by in inflicting a different evil on the defendant?
4. Structure of Crimes
Two Parts to a Crime
“Bi-Partrite System” in Common Law
Actus Reus
and
Mens Rea
“Actus Reus” and “Mens Rea”
Crime involves the Mind and the Body
Actus Reus has to do with the conduct (act) or omission (failure to act)
Mens Rea has to do with the intent (mental)
You can also think of it as:
The objective (actus reus), how one acts, what you can observe on the
outside)
The subjective (mens rea), what one is thinking on the inside
Commission and Omission
Actus Reus means an ACT
Not enough that a person exists and has thought about doing
something.
Needs to have done something
“Willed body movement”
But corporations can also commit crimes an they have no bodies
Omission
Act can include an omission to act
Usually involves a duty to do something and you don’t do
it
Failure to act when the law would have required you to
act
Example: Parents have a duty to feed their children
Mens Rea
Act isn't enough; must also have intent
Or recklessness or at least negligence
Rarely have strict liability (liability without fault)
Intentionally kill someone= murder
Accidentally (negligently) kill someone= manslaughter
Civil law idea of intent
Direct intent (dolus directus)
Defendant acts to achieve a desired result
Indirect intent (dolus indirectus)
Defendant acts knowing that the result will “almost certainly” happen even if
he doesn’t particularly desire it.
Example: He purposefully burns down a house (arson) and doesn’t care that
his dad is inside sleeping. Didn’t intend to kill the dad but doesn’t care either. Guilty
of arson and murder.
Conditional intent (dolus eventualis)
You know you’re doing something risky, and you go ahead and
act anyway, thereby accepting the possible outcome.
Example: You are a construction worker leaving the work site. You
know people occasionally walk through the site after work hours but
you leave a big pit uncovered, taking the risk that no one will step in in
it. Someone falls in and is hurt. You didn’t desire the person to get hurt,
and you didn’t know it was “almost certain” to happen.
Common law systems have three types of intent:
Intent
Recklessness
Negligence
Common law uses “recklessness”
“conditional intent” is more of a civil law concept
Common Law calls similar behavior “recklessness”
Reckless=acting in callous disregard of the potential consequences
In U.S., we call this conduct either negligent or “reckless” behavior
If they know people walk through regularly and they don’t take really
care and don’t take any precautions, that’s reckless.
If they tried to cover it up but didn’t do a very good job, that’s
negligence.
Point is that there are many ways to look at intent
Desire the result
Know the result is substantially certain to happen
Think the result might happen but you’re too reckless to care
Don’t pay attention and are careless but didn’t want to hurt anyone
Should have know there was a danger but you were oblivious
Motive not necessary
For a crime to be committed, all that is needed is the actus reus and the
mens rea.
But easier to convict if we can show motive
5. Defenses to Crime
Defenses to Murder?
Ever a justification for killing someone?
Self-defense?
Defenses
Justification
negates the wrongfulness
e.g., not wrongful to kill in self-defense
Excuses
negates the blameworthiness
act was wrongful but defendant should not be held liable
e.g., defendant not to blame if he/she is insane
What is “self-defense”?
Imminent attack
imminent=immediate
(actually happening, not just something you’re worried about)
On you or another person
Limits:
If you can retreat instead, you must do so
Exception:” Stand your ground” laws
No reasonable alternative is available
Can’t use unnecessary, disproportional, force
For only as long as you need to protect yourself
(no retaliation)
Insanity
Don’t punish those who are not responsible for their actions
Just having a mental illness isn’t enough
Just because you have a mental illness doesn’t mean you
don’t know what you’re doing
Excuse: Mental disorder that “substantially impaired
the defendant's capacity to be held responsible”
Actual brain damage or “cognitive impairment”
Psychosis that causes a distorted perception of reality so the
defendant cannot understand the nature of his act
Mental condition that prevents one from being able to
distinguish right from wrong
“Irresistible impulse” (knows it’s wrong but can’t stop himself)
Intoxication
Criminal Procedure
Constitutional Law
Defendant’s rights are protected
Question
Sometimes giving defendant his rights means that a guilty person goes
free
Which do you prefer:
A crime-fee system in which individuals have no civil liberties
A society affected by crime but able to enjoy civil liberties
Bill of Rights
First ten amendments to the U.S. Constitution
Some of the amendments relate specifically to the rights of criminal
defendants
FOURTH AMENDMENT TO U.S.
CONSTITUTION
No Unreasonable Searches and Seizures
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated . . . .”
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“reasonable”
Reasonable= Supported by probable cause and limited
in scope
Unreasonable= Not supported by probable cause
and/or not limited in scope
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What is a “search”?
What is a “seizure”?
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Is this a “search”?
Going through the contents of a garbage can out on the
street?
Wiretapping and other electronic surveillance?
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Definition of “search”
Test: U.S. Supreme Court ruled that a “search” occurs
only when
1) a person expects privacy in something, and
2) society believes that expectation is reasonable.
Katz v. United States, 389 U.S. 347 (1967).
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What is a “seizure”?
Seizure= capture, grab
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Definition of seizure of property
A seizure of property occurs when there is
government interference with a possessory interest in
property
Example: When police officers take personal property
away from an owner to use as evidence.
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Definition of seizure of a person
A seizure of a person occurs when
the person’s freedom of movement is restrained
by means of physical force or a show of
authority, and
a reasonable person would believe that he was
not free to leave.
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FOURTH AMENDMENT TO U.S.
CONSTITUTION
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .”
Generally means gov’t needs a warrant before
searching
Warrant Required
“no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.”
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BUT….Exceptions
Search incident to an arrest
Consent
Plain view / Open Fields
“Exigent” circumstances
Motor vehicle
Border 52
Search “incident” to an arrest
Related to or a part of the arrest
Can search the defendant (pat down) and the areas that he can
immediately reach (wingspan)
Consent
Understand what your rights are
Waive them knowingly
And voluntarily
Miranda rights
Miranda v. Arizona (1966)
Police must explain rights before custodial questioning
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Plain view / Open Fields
Evidence must be “readily apparent”
Police must be in a lawful vantage point
Can’t go peering into windows of a home
But OK if can see from sidewalk
Planes
Helicopters
“Navigable air space”
Drones?
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“Exigent” circumstances
Chance that evidence will be destroyed before warrant
can be obtained.
Blood sample
– Is it a search?
– Is it an exigent circumstance?
Exigent=urgent
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Motor vehicle
Police can search if they have a reasonable belief that
evidence or contraband is in the car
Contraband=illegal items
Why?
No reasonable expectation of privacy
Moveable
What about a motor home?
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Border search
Routine searches are considered reasonable and do
not require a warrant
-pat downs
-luggage inspection
-use of drug-sniffing dogs
Except no ”invasive body” searches without probable
cause
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Exclusionary Rule
Evidence obtained in violation of
the Constitution cannot be
introduced in court.
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Example
Police offer stops a young woman student for “rolling through” a
stop sign
Nothing indicates that the driver is impaired by drugs or alcohol,
and no other circumstances would lead a reasonable officer to
believe that the car contains evidence or contraband
Nevertheless, he decides to search the car
He finds cocaine in the vehicle
He arrests the driver for possession of cocaine
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Police can search a vehicle without a warrant if they have a
reasonable belief that evidence or contraband is in the car
This would be considered an unreasonable search
The cocaine evidence will be excluded from trial under the
exclusionary rule
And the criminal charges will be dismissed for lack of evidence.
Example: The police arrest a man who's suspected of committing an armed
bank robbery. The police begin questioning ("interrogating") the suspect, and
they tell him his rights, including his right to have an attorney present during
the questioning. The suspect immediately tells the police that he wants an
attorney, but the police continue to interrogate him anyway. After a few hours
of questioning, the suspect confesses to the crime and tells them that the
stolen money is hidden in his home. The police get a warrant, search the
home, and they find not only the money, but dozens of other stolen goods and
a large quantity of cocaine. The suspect is then charged with theft and drug
trafficking on top of the armed robbery charge.
Under the exclusionary rule, the suspect's confession to armed robbery can't be
used because it was obtained through an illegal interrogation. The money from
the bank, as well as the other stolen goods and cocaine found in his home, can't
be used against him, either, because they're all fruits of the illegal interrogation,
that is, the poisonous tree.
FIFTH AMENDMENT TO
U.S. CONSTITUTION
“Double Jeopardy” clause
“No person shall … be subject for the
same offence to be twice put in jeopardy
of life or limb."
Jeopardy = risk, danger.
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Meaning of “no double jeopardy”?
Once acquitted (found not guilty), a defendant may not
be retried for the same offense.
acquitted= found “not guilty”
What is the reason for this?
Five policy considerations for the double jeopardy doctrine:
(1) prevent the government from using its superior resources to wear
down and erroneously convict innocent persons;
(2) protect individuals from the financial, emotional, and social
consequences of successive prosecutions;
(3) preserve the finality and integrity of criminal proceedings, which
would be compromised if the government were allowed to arbitrarily
ignore unsatisfactory outcomes;
(4) restrict prosecutorial discretion over the charging process; and
(5) eliminate judicial discretion to impose cumulative punishments.
FIFTH AMENDMENT TO
U.S. CONSTITUTION
Freedom against Self-Incrimination
“I take the Fifth”
Right to refuse to incriminate oneself
Right to refuse to testify
Incriminate=make (someone) appear guilty of a crime or wrongdoing,
provide evidence of wrongdoing.
No one at the trial can comment about the defendant's failure to
testify nor argue that the defendant must be guilty or he would have
testified
Right to refuse to incriminate oneself doesn’t cover:
Being forced to give hair, blood, or handwriting samples.
Only applies to speech.
SIXTH AMENDMENT TO
U.S. CONSTITUTION
Right to:
Be informed of the nature of all accusations;
Have counsel (a lawyer);
Trial in a timely manner (“speedy trial”);
Trial by jury;
Confront witnesses; and
Compel witnesses to testify on your behalf.
Right to counsel
Means right to effective counsel…
Even if you are poor.
But defendant can choose to represent him/herself. Pro per. Court can deny
the waiver if it believes the accused is less than fully competent to adequately
proceed without counsel
Pro per (in propria persona)=“in their own person,” meaning representing
oneself.
Compel witnesses to testify
Means the defendant can require the judge to issue a subpoena
requiring a witness to show up at court to testify
Subpoena=a court order requiring a person to appear in court
Miranda rights
Right to remain silent;
Anything you say can and will be used against you in a court of
law;
Right to be represented by counsel; and
If you cannot afford an attorney, one will be appointed for you.
VOCABULARY WORDS Defenses (to a crime)
Self-defense
Averse Imminent
Adverse Bill of Rights (USA)
The Harm Principle Search
Minimalist Principle Seizure
Utilitarian Theory of Punishment Reasonable (re search)
Retributive Theory of Punishment Probable cause
Deterrence Warrant
Rehabilitation Wingspan search
Recidivism “Search incident to an arrest”
Actus Reus Plain view search
Mens Rea “Exigent” circumstances
Objective Exclusionary Rule
Subjective Jeopardy
Commission Double Jeopardy
Omission Acquitted
Direct intent Incriminate
Indirect intent Pro per
Conditional intent Subpoena
Recklessness Miranda rights
Justification (for a crime)
