Criminal Justice: A Brief Introduction

Thirteenth Edition

Chapter 3
Criminal Law

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The Nature and Purpose of Law (1 of 2)
• Law
– A rule of conduct, generally found enacted in
the form of a statute, that proscribes or
mandates certain forms of behavior
• Laws regulate relationships between people and
between parties

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The Nature and Purpose of Law (2 of 2)
• Statutory law—the “law on the books,” written or
codified law resulting from legislative action
• Penal code—the written form of the criminal law.
• Case law—law resulting from judicial decisions.
• Common law—traditional body of law originating
from usage and custom rather than from written
statutes

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Table 3.1 What Do Laws Do?

• Laws maintain order in society.

• Laws regulate human interaction.
• Laws enforce moral beliefs.
• Laws define the economic environment.
• Laws enhance predictability.
• Laws support the powerful.
• Laws promote orderly social change.
• Laws sustain individual rights.
• Laws redress wrongs.
• Laws identify wrongdoers.
• Laws mandate punishment and retribution.
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The Rule of Law (1 of 2)
• The belief that an orderly society must be governed by
established principles and known codes that are applied
uniformly and fairly to all of its members
• No one is above the law; those who make or enforce the
law must also abide by it
• Sometimes referred to as the supremacy of law
• Jurisprudence-the philosophy of law, the science and study
of the law, including the rule of law

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The Rule of Law (2 of 2)
• Key elements of the rule of law:
– Freedom from private lawlessness
– High degree of objectivity in formulating legal
norms and evenhandedness in their application
– Legal ideas/devices for attaining individual and
group objectives within bounds of ordered
liberty
– Substantive and procedural limitations on
governmental power

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Criminal Law
• 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
• Includes statutory (written law) and case law

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Statutory Law
• Substantive criminal law
– The part of the law that defines crimes and
specifies punishments
• Procedural law
– The part of the law that specifies the methods
to be used in enforcing substantive law
– Balance suspect’s rights against the state’s
interests in the speedy and efficient processing
of defendants

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Civil Law (1 of 2)
• Governs relationships between and among parties
• Includes rules for contracts, divorces, child support
and custody, wills, libel, etc.
• Civil suits typically seek compensation, not
punishment

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Civil Law (2 of 2)
• Violation of civil law is not a crime
• May be a contract violation or a tort
– Tort—a wrongful act, damage, or injury not
involving a breach of contract (personal wrong,
not a crime)
• Parties to a civil suit
– Plaintiff: Seeks relief
– Defendant: Against whom relief is sought

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Administrative Law
• Body of regulations governments create to control
the activities of industries, businesses, and
individuals
• Includes tax laws, health codes, vehicle
registration laws
• Most breaches of administrative law are not
crimes, but criminal law and administrative
regulations may overlap

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Case Law
• Law of precedent, comes from judicial decisions
• Precedent
– A legal principle that ensures that previous
judicial decisions are authoritatively considered
and incorporated into future cases
• Stare decisis
– A legal principle that requires that in
subsequent cases on similar issues of law and
fact, courts be bound by their own earlier
decisions and by those of higher courts having
jurisdiction over them
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Felonies
• A criminal offense punishable by death or by incarceration
in a prison facility for at least one year
• Serious crimes such as murder, rape, aggravated assault,
robbery, burglary, and arson
• Convicted felons typically lose certain privileges upon
release from prison

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Misdemeanors
• An offense punishable by incarceration, 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
• Relative minor crimes such as petty theft, simple
assault, breaking and entering, disturbing the
peace, etc.
• Most offenders receive suspended sentences
involving a fine and supervised probation

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Infractions
• 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
• Typically includes things like jaywalking, spitting on
the sidewalk, littering, and certain traffic offenses
• Offenders are normally ticketed and released

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Treason
• A U.S. citizen’s actions to help a foreign
government overthrow, make war against, or
seriously injure the United States
• The attempt to overthrow the government of the
society of which one is a member

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Espionage
• The “gathering, transmitting, or losing” of
information related to the national defense in a
manner that the information becomes available to
enemies of the United States and may be used to
their advantage
• The key difference between treason and espionage
is that espionage may be committed by non-U.S.
citizens

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Inchoate Offenses
• An incomplete offense—one that has not been fully
carried out
• An offense that consists of an action or conduct
that is a step toward the intended commission of
another offense
• Includes conspiracies and attempts to commit a
crime

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General Features of Crime
• The essence of crime consists of three conjoined
elements
– Actus reus
– Mens rea
– Concurrence

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Figure 3.3 Features of a Crime

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The Criminal Act (Actus Reus)
• “Guilty act”
• Person must commit a voluntary act for it to be
considered a crime
• To be something is not a crime; to do something
may be.
– An omission to act can be a crime
– Threatening to act can be a crime
– Conspiracy can be a crime

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A Guilty Mind (Mens Rea) (1 of 5)
• The state of mind that accompanies a criminal act;
the defendant’s mental state at the time of the
crime
• Types or levels of mens rea
– Purposeful or intentional
– Knowing
– Reckless
– Negligent

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A Guilty Mind (Mens Rea) (2 of 5)
• Purposeful or intentional action
– Undertaken to achieve some goal
– Transferred intent—if harm resulting from an
intentional action is unintended, criminal
liability is not reduced
• Knowing behavior
– Undertaken with awareness, although the
intended purpose of acting in a knowingly
criminal way may not be criminal intent
– Involves near certainty

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A Guilty Mind (Mens Rea) (3 of 5)
• Reckless behavior
– An activity that increases the risk of harm
– Lacks the certainty of knowing behavior
• Criminal negligence
– A behavior in which a person fails to reasonably
perceive substantial and unjustifiable risks of
dangerous consequences
– No negative consequences need to be intended

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A Guilty Mind (Mens Rea) (4 of 5)
• Mens rea is not the same thing as motive
• Motive
– A person’s reason for committing a crime
– Motive is not an essential element of a crime
• Mens rea must generally be inferred from a
person’s actions and from all circumstances

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A Guilty Mind (Mens Rea) (5 of 5)
• Strict liability crimes do not require mens rea
– Also called absolute liability offenses
– Make it a crime simply to do something, even if
there is no intent to violate the law
– Routine traffic offenses, statutory rape

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Concurrence
• Requires that the act and the mental state occur
together in order for a crime to take place
• If one occurs before the other, the requirements of
the criminal law have not been met

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Other Features of Crime (1 of 3)
• Causation
– The concurrence of a guilty mind and a criminal
act may cause harm
– Legal cause—must be demonstrated in court to
hold an individual criminally liable for causing
harm
• Harm
– Harm occurs in all crimes but not all harms are
crimes
– Harm subsumed under notion of guilty act in a
criminal prosecution
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Other Features of Crime (2 of 3)
• Legality
– A behavior cannot be criminal if no law exists
that defines it as such
– Ex post facto laws (“after the fact”) are not
binding
 Laws cannot be binding prior to the date of
their creation
• Punishment
– No crime can be said to occur where
punishment has not been specified in the law

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Other Features of Crime (3 of 3)
• Necessary attendant circumstances
– The facts surrounding an event
– Additional elements that must be present for a
conviction to be obtained
– May increase the degree, or level of
seriousness, of an offense

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Elements of a Specific Criminal
Offense
• Element of a crime
– In a specific crime, one of the essential features
of that crime, as specified by law or statute
• Elements of first-degree murder
– Unlawful killing
– Of a human being
– Intentionally
– With planning (or “malice aforethought”)

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The Corpus Delicti of a Crime
• “The body of the crime” or the facts that show that
a crime has occurred
• A person cannot be tried for a crime until it has
been shown the crime occurred
• Two key aspects:
– A certain result has been produced
– A person is criminally responsible for its
production
• The identity of the perpetrator is not an element of
the corpus delicti of an offense

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Figure 3.4 Body of Crime

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Types of Defenses to a Criminal
Charge
• Defense
– Evidence and arguments offered by the
defendant to show why he or she should not be
held liable for a criminal charge
• Four categories of defenses
– Alibi
– Justification
– Excuse
– Procedural defenses

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Alibi
• The claim that the defendant could not have
committed the crime because he or she was
elsewhere at the time
• Based upon the premise that the defendant is truly
innocent
• Denies that the defendant committed the crime
• Best supported by witnesses and documentation

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Justifications (1 of 6)
• The defendant admits to committing the act but
claims that it was necessary to avoid some greater
evil
• Claiming a moral high ground
• Conduct that a person believes is necessary to
avoid harm to himself or herself is justifiable if the
harm the person is trying to avoid is greater than
the harm that may be caused by his or her conduct

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Justifications (2 of 6)
• Self-defense
– The defendant needed to inflict harm on
another to ensure his or her own safety in the
face of near-certain injury or death
– Amount of defensive force must be proportional
to that being faced
– Reasonable force
 The degree of force that is appropriate in a
given situation and that is not excessive

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Justifications (3 of 6)
• Defense of others
– Extension of self-defense to the use of
reasonable force to defend others
– Alter ego rule
 A person can only defend a third party under
circumstances, and only to the degree that
the third party could legally act on his or her
own behalf

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Justifications (4 of 6)
• Defense of home and property
– Most jurisdictions allow property owners to use
reasonable nondeadly force to protect property
– Castle exception: There is no duty to retreat
from one’s own home in the face of an
immediate threat, even if retreat is possible,
before using deadly force to protect the home

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Justifications (5 of 6)
• Necessity
– The claim that some illegal action was needed to
prevent an even greater harm
– A useful defense in cases that do not involve
serious bodily harm.
• Consent
– Defense that claims that whatever harm was
done occurred only after the injured person gave
his or her permission for the behavior in
question

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Justifications (6 of 6)
• Resisting unlawful arrest
– Resisting arrest is a crime in all jurisdictions
– Resistance may be justifiable, especially if the
arresting officer uses excessive force
– Laws generally say that a person may use a
reasonable amount of force, other than deadly
force, to resist arrest or an unlawful search if the
officer uses greater than necessary force

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Excuses (1 of 11)
• Defenses claiming that the individual engaging 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
• Criminal liability may be negated on the basis of
some personal disability the individual has or some
special circumstances characterizing the situation

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Excuses (2 of 11)
• Duress
– Any unlawful threat or coercion used by a
person to act (or refrain from acting) in a
manner he or she otherwise would not (or
would)
– Generally not a useful defense when the crime
involves serious physical harm
• Age
– In most jurisdictions, children below age 7
cannot be charged even with juvenile offenses

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Excuses (3 of 11)
• Mistake
– Mistake of law is rarely an acceptable defense
(“Ignorance of the law is no defense”)
– Mistake of fact may be a useful defense
• Involuntary intoxication
– The claim that the person was tricked into
consuming an intoxicating substance, which
created an altered mental condition
– Voluntary intoxication is rarely a defense

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Excuses (4 of 11)
• Unconsciousness
– An individual cannot be held responsible for
anything he or she does while unconscious
– Rarely used
• Provocation
– A person can be emotionally enraged by
another who intends to elicit this reaction
– Generally more acceptable in minor offenses

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Excuses (5 of 11)
• Insanity
– Insanity is a legal concept, not a medical one
– Defense based on claims of mental illness or
mental incapacity
– Rarely used and even more rarely successful

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Excuses (6 of 11)
• M’Naghten Rule—did the defendant know what he
or she was doing or that the behavior was wrong
• Irresistible Impulse—defendant unable to stop
doing what he or she knew was wrong
• Durham Rule—a person is not criminally
responsible if his or her actions resulted from
mental disease or defect
• Substantial-Capacity Test—defendant lacked the
mental capacity to understand the wrongfulness of
his act or conform his behavior to the requirements
of law
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Excuses (7 of 11)
• Difficulties with the insanity defense
– Psychiatric testimony is expensive and expert
witnesses often contradict each other
– Society often not satisfied that justice is served
when findings of “not guilty due to insanity” are
made
• Four states have barred the use of the insanity
defense (Kansas, Montana, Idaho, Utah)

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Excuses (8 of 11)
• Guilty but mentally ill verdict (G BMI)
– Some states use “guilty but insane” finding
– A verdict, equivalent to a finding of “guilty” that
establishes that the defendant, although
mentally ill, was in sufficient possession of his
or her faculties to be morally blameworthy for
his or her acts
– Judge may impose any sentence possible under
the law but usually also mandates psychiatric
treatment

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Excuses (9 of 11)
• Temporary insanity
– The offender claims to have been insane only at
the time of the crime
• The insanity defense under federal law
– Insanity Defense Reform Act (1984) uses a
definition of insanity similar to that used in
M’Naghten
– Places the burden of proving insanity defense
on the defendant

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Excuses (10 of 11)
• The consequences of an insanity ruling
– Judge may order the defendant to undergo
psychiatric treatment until “cured”
– Defendants may spend more time in a
psychiatric institution than would have been
spent in prison
• Diminished capacity
– A defense claiming a mental condition that may
be insufficient to exonerate the defendant but
that may be relevant to specific mental
elements of a crime
– Abolished in some states
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Excuses (11 of 11)
• Mental incompetence
– Refers to the defendant’s condition immediately
before prosecution
– Incompetent to stand trial
 As a result of mental illness, the defendant is
incapable of understanding the nature of the
proceedings, of consulting with an attorney,
and of aiding in his or her own defense

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Procedural Defenses (1 of 5)
• Procedural defenses claim that the defendant was
in some manner discriminated against in the
justice process
• May also claim that some important aspect of
official procedure was not properly followed

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Procedural Defenses (2 of 5)
• Entrapment
– An improper or illegal inducement to crime by
agents of law enforcement
– Agents created a crime where there otherwise
would have been none
• Double jeopardy
– Prohibits a second trial for the same offense
– Does not apply in cases of trial error (hung jury,
etc.)
– Does not prevent someone from being tried in
both civil and criminal court
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Procedural Defenses (3 of 5)
• Collateral estoppel
– Facts that have been determined by a “valid
and final judgment” cannot become the object
of new litigation
• Selective prosecution
– 14th Amendment guarantees equal protection of
the laws
– Defense may apply if several individuals are
suspected of a crime but not all are actively
prosecuted

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Procedural Defenses (4 of 5)
• Denial of a speedy trial
– 6th Amendment guarantees the right to a
speedy trial
– State/federal laws define time limits necessary
for a trial to be “speedy”
– Does not include delays resulting from requests
by the defense
– If the legal time limit is exceeded, the
defendant must be released and no trial can
occur

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Procedural Defenses (5 of 5)
• Prosecutorial misconduct
– Actions by prosecutors that give the
government an unfair advantage or prejudice
the rights of a defendant or witness
• Police fraud
– Defense available to defendants victimized by
the police through planted evidence, fabrication
of facts, false arrests

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Copyright

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