Chapter 3 Criminal Law: Substance and Procedure

1
Chapter 3Criminal Law Substance and Procedure
2
The Multiple Social Functions of Law

• What purposes or functions does the law serve?
• Enforce social control
• Enact retribution
• Express public opinion and morality
• Deter criminal behavior
• Punish wrongdoing
• Maintain social order
• Restore social relations
• Help establish a just society

3
An Example of Goals Stated in Law

• Section 9.94A.010 of the Washington State
  Criminal Code The purpose of criminal justice is
  to
• Ensure that punishment is proportionate to the
  seriousness of the offense
• Promote respect for law by providing punishment
  that is just
• Have similar punishments for similar offenses
• Protect the public
• Offer offenders an opportunity to improve
  themselves (rehabilitation)
• Make frugal use of the states resources

4
Law and Criminal Justice

• Law enables and also restricts government
  authority and power
• Law changes over time, it has a history
• Law is a public decision by legislatures,
  courts, administrative agencies, public demands
  (moral entrepreneurs)
• Law is not self-executing it is a human process
  - legal words have to be interpreted and applied

5
Definitions Types of Law

• Substantive criminal law
• law that defines crime and punishment (penal
  codes)
• spells out the powers and authority of CJ
  officials
• establishes penalties for crime
• the government deals with crimes, even those
  against persons (victims cannot take the lake
  into their own hands - have to take their case to
  the government which then deals with the
  offenders)

6
Procedural Law

• Procedural law
• The rules designed to implement substantive law
  (code of criminal procedures)
• Is based on Bill of Rights
• Defines justice
• Requires due process in criminal justice
  decision-making
• Limits power of government
• Protects individual rights

7
Civil Law

• Civil law
• Law governing phases of human enterprise,
  including commerce, family life, property
  transfer, and regulation of interpersonal
  conflict
• Deals with conflicts between individuals or
  groups
• State/government merely provides the arena and
  legal rules for arguing and resolving
  inter-personal conflicts

8
Historical Development of Criminal Law

• Babylonian Code of Hammurabi (2000 B.C.)
• Mosaic Code of the Israelites (1200 B.C.)
• Roman Twelve Tables (451 B.C.)
• Justinians Corpus Juris Civilis
• German Wergild
• Canon (Church) Law
• State centered law common law in England civil
  law in Europe

9
Sources of Criminal Law USA

• The USA was a British colony followed British
  legal traditions
• Common Law Incorporated customs, traditions,
  practices, and common behavior into a
  standardized law.

10
Sources of Criminal Law USA (cont.)

• Legal practices and sayings under common law
• Stare Decisis To stand by decided cases.
  Decisions in earlier cases become the standard by
  which subsequent similar cases should be judged.
• Sine lege, sine poena no punishment without a
  law conduct not prohibited by law is allowed
• Mala in se crimes that are inherently evil (i.e.
  murder)
• Mala prohibita prohibited wrongs (failure to pay
  taxes)

11
Legal Principles

• Why stare decisis, or precedent?
• In common law, courts have great power
• They are the ultimate interpreters of the law,
  including its constitutional standing
• Stare decisis/precedent developed to ensure
  consistency and continuity in how common law was
  interpreted by the courts

12
Sources of Criminal Law

• Constitutional laws and provisions Bill of
  Rights
• Common law practices (e.g., contempt of court)
• Statutes written by legislatures (the most common
  source of law)
• Case decisions, most importantly those by the
  Supreme Court
• Administrative rules and regulations

13
Prohibited laws under the Constitution

• Ex Post Facto Laws
• Punish conduct committed before passage of the
  law criminalizing that conduct
• Makes a crime more serious and authorizes greater
  punishment than the law existing at the time of
  the act
• Makes it easier to convict the offender than the
  law existing at the time of the act

14
Prohibited Laws under the Constitution

• Bill of Attainder
• A legislative act punishing someone for treason
  without a trial
• Punishing someone for conduct committed by
  someone else (e.g., a member of the family
  corruption of blood)

15
Crimes and Classifications

• Felony Serious crime punishable by imprisonment
  in a penitentiary or death.
• Misdemeanor A less serious crime punishable by
  fine or imprisonment for less than a year.
• Infraction Violations of a city or county
  ordinance normally punished by a fine. Some
  states consider infractions to be civil rather
  than criminal.

16
Legal Definition of a Crime

• Actus reus
• An illegal act
• A failure to act when the law requires you to do
  so
• Act must be voluntary
• Negligent acts can result in criminal liability

17
Legal Definition of a Crime (cont.)

• Mens rea
• Guilty mind or intent. The mental element of a
  crime
• Intent is implied if the results of an act are
  certain to occur.
• Crimes may require different levels of intent
  ranging from purpose (homicide) to negligence
  (manslaughter a reasonable person should have
  know that someone could be killed by ones
  conduct)

18
Legal Definition of Crime (cont.)

• Connection between act (actus reus) and harm
  done
• The illegal act must be the cause of the harm

19
Legal Definition of a Crime (cont.)

• Exceptions to mens rea strict liability
  offenses
• Illegal acts that do not require a showing of
  intent
• Examples
• Speeding
• Serving a minor alcohol because he/she looked
  older

20
Criminal Defenses

• A person can commit an act that would ordinarily
  be a crime but they are not held criminally
  liable because there is a recognized defense or
  justification for their act under the law.
• Criminal defenses are a core aspect of common law
  thinking.
• Most criminal defenses are based on the mens rea
  element in definitions of crime.

21
Criminal Defenses (cont.)

• Ignorance or mistake
• As a general rule ignorance of the law is not a
  defense.
• Mistake of fact may be a defense if it shows a
  lack of intent.
• Examples
• Taking someone elses coat when you leave a
  restaurant because you believed it was yours
• Taking a suitcase from the airline belt, which
  looks just like yours, but which does not belong
  to you

22
Criminal Defenses (cont.)

• Insanity
• Relies on a legal rather than medical definition
• Defendants who are legally insane are found not
  guilty by reason of insanity.
• Insane persons lack the capacity to form legal
  intent, or mens rea.
• Cannot distinguish between right and wrong, or
  cannot control their conduct

23
Criminal Defenses (cont.)

• Intoxication
• Voluntary intoxication is not normally a defense.
• Involuntary intoxication may be a defense
• E.g., someone gave you a drink you did not know
  or could not reasonably know contained alcohol.

24
Criminal Defenses (cont.)

• Age
• A child is not criminally responsible for actions
  committed at an age that precludes a full
  realization of gravity of certain types of
  behavior.
• Under the common law a child under the age of
  seven was presumed to be incapable of forming
  intent.
• Today state statutes establish the age of
  responsibility.

25
Criminal Defenses (cont.)

• Consent
• A person may not be convicted of a crime if the
  victim consented to the act.
• A forcible rape does not occur if person consents
  to sexual relations it is love
• But a statutory rape does occur, even if the
  parties consent, because the law assumes not all
  persons (juveniles, mentally challenged,
  intoxicated persons) are competent to give
  consent.
• Competent to give consent means voluntary and
  informed consent (understanding the consequences
  of consenting)

26
Criminal Defenses (cont.)

• Self-defense
• Must have acted under reasonable belief that
  he/she was in danger of death or great harm, and
  had no means of escape
• May only use such force as is reasonable
  necessary to prevent personal harm or imminent
  harm to others

27
Criminal Defenses (cont.)

• Recent changes in state law have made it easier
  to claim self defense
• E.g., stand your ground laws mean you do not
  have to attempt to escape to argue self defense
• E.g. make my day laws mean you can shoot
  someone who you think threatens you in your home
  you did not know the person was delivering
  pizza and got the address wrong
• The threat must be immediate
• But hard to define (e.g., battered women who kill
  their spouses while they are asleep)

28
Criminal Defenses (cont.)

• Entrapment
• The police may not induce someone to commit a
  crime they otherwise would not have done through
  the use of traps, decoys, and deception.
• The motive for committing a crime originates with
  the police, not the offender
• But police may provide someone with the
  opportunity to commit a crime.
• Setting up a sting operations means gives someone
  a chance to commit a crime, not the motive to
  commit it

29
Criminal Defenses (cont.)

• Duress
• Person is forced to commit a crime in order to
  prevent death or serious physical harm to
  themselves or someone else
• E.g., being told to rob a store or a family
  member will be hurt.
• The threat of duress must be reasonable
• Generally may not claim duress as a defense or
  justification to the crime of murder.

30
Criminal Defenses (cont.)

• Necessity
• In order to prevent a greater harm a crime is
  committed. Must be able to show that any
  reasonable person would have done so
• E.g. someone without a cell phone breaking into a
  closed store to call an ambulance
• Generally does not apply to social or moral
  agendas
• Shutting down nuclear power plants or abortion
  clinics

31
Reforming Criminal Law

• The federal and state governments consistently
  make efforts to reform the law to ensure it
  reflects the needs of society.
• Advances in technology or new social factors
  require creation of additional laws
• E.g., computer crimes or child pornography on the
  internet
• Changes in society may dictate decriminalization
  or criminalization of certain acts
• E.g., stalking
• Defenses and justifications undergo similar
  changes.

32
Example of new law

• Underneath
• What brought about this new law? And why now?

33
Constitutional Criminal Procedure

• Substantive criminal law primarily defines
  crimes.
• Procedural criminal law consists of the rules and
  procedures that govern the pretrial processing of
  criminal suspects and the conduct of criminal
  trials.
• Main source of procedural law is the Bill of
  Rights, especially amendments four, five, six,
  eight and fourteen to the Constitution.

34
Constitutional Criminal Procedure (cont.)

• 4th Amendment Regulates searches and seizures.
• 5th Amendment Protects against
  self-incrimination, double jeopardy, and
  guarantees right to grand jury.
• 6th Amendment Right to a speedy and public trial
  by an impartial jury, right to counsel, notice of
  charges, and confrontation of witnesses.
• 8th Amendment Prohibits excessive bail,
  excessive fines, and cruel and unusual
  punishment.
• 14th Amendment makes Bill of Rights applicable
  to the states.

35
Important Constitutional Phrases

• Due Process of the Law
• Found in both the 5th and 14th Amendments
• Refers to the essential elements of fairness
  under law
• Substantive due process protects against laws
  that are unfair.
• Procedural due process ensures no one is deprived
  of life, liberty, or property without proper and
  legal criminal process.

36
Important Constitutional Phrases (cont.)

• Equal Protection of the Law
• Found in the 14th amendment
• Law cannot treat people in same situations or for
  the same conduct differently, on the basis of
  race, gender, or other group memberships
  recognized as suspect in law (religion,
  national origin, etc)
• Prohibits discrimination and arbitrariness by
  practitioners in how the law is applied

37
Due Process of Law in Policing

• Found in 4th and 5th Amendments
• No intrusion by police into privacy of persons or
  property without proper legal cause (search and
  seizure of evidence, warrant requirement)
• Persons in police custody must be informed of
  their right against self incrimination (Miranda
  warning) confessions cannot be compelled

38
Due Process of Law in Courts

• Notice of charges accusation
• A formal hearing
• The right to counsel/representation
• Opportunity to respond to charges
• Opportunity to confront and cross-examine
  witnesses
• Free from self-incrimination take the fifth
• Opportunity to present ones own witnesses
• A decision made on the basis of substantial
  evidence and facts produced at hearing
• Written statement of reasons for the decision
• An appellate review procedure

39
Due Process of Law in Corrections

• Found in 8th Amendment
• Punishment cannot be cruel and unusual by
  prevailing moral standards of the society
• Convicted offenders under control of the state
  (probation, parole, prison, jail) are entitled to
  minimal conditions of human dignity (safety,
  food, health care, access to communications,
  practice of established religion, access to
  rehabilitation services)

40
Fourteenth Amendment

• Guarantees equal protection of the law and due
  process
• Passed after the civil, applied to federal cases
  only
• Was applied to state and local courts
  (incorporated into state law) by the Supreme
  Court, mainly during the 1960s
• Big case Mapp v Ohio, 1961 (applied the
  exclusionary rule to state courts)
• Other Bill of Rights protection incorporated
  piecemeal to state levels