What Do Laws Do? Laws help to: Regulate human interaction. Enforce moral beliefs. Define the economic environment. Enhance predictability. Support the powerful. Sustain individual rights. Redress wrongs. Identify wrongdoers. Mandate punishment and retribution.

Where are our laws? Laws are found in statutory provisions and constitutional enactments, as well as hundreds of years of rulings by courts at all levels. Statutory law is the written or codified law: the “law on the books,” as enacted by legislative action. The written form of criminal law is called the penal code.

Interpreting Statutory Law Courts interpret the statutory laws. Case law—law that results from judicial decisions. Common law—the traditional body of unwritten historical precedents created from everyday social customs, rules, and practices, which may be supported by judicial decisions.

The Rule of Law The rule of law holds that an orderly society must be governed by established principles and known codes that are applied uniformly and fairly to all of its members.

Jurisprudence The philosophy of the law or the science and study of the law, including the rule of law.

Types of Law Criminal law Civil law Administrative law Case law Procedural law

Criminal Law Criminal law – The body of rules and regulations that define and specify the nature of, and punishments for, offenses of a public nature or wrongs committed against the state or society Crimes injure not just individuals, but society as a whole. Punishment for violators of criminal law is justified by the fact that the offender intended the harm and is responsible for it.

Written Criminal Law There are two types of written criminal law: Substantive law—describes which acts constitute crimes and specifies punishments for those acts. Procedural law—specifies the rules that determine how those who are accused of crimes are to be treated by the judicial system.

Civil Law Civil law governs relationships between and among people, businesses and other organizations, and agencies of government A violation of this law is often called a tort. Civil law is concerned more with liability than intent. The result can be an injunction or a loss of money.

Administrative Law Administrative law is the body of regulations that governments create to control the activities of businesses, industry, and individuals. Can overlap with criminal law.

Case Law Case law comes from judicial decisions. It is referred to as the law of precedent. Under stare decisis, the courts recognize previous decisions and precedents to guide future deliberations. Precedent operates along two dimensions, the vertical and the horizontal.

Procedural Law Procedural law is a type of statutory law that regulates the processing of an offender by the criminal justice system. It includes: General rules of evidence Search and seizure Procedures to be followed during and after an arrest Procedural laws balance suspects’ rights against the state’s interested in speedy and efficient case processing.

General Categories of Crimes There are many different types of crimes, which vary in severity. Five categories of violations are: Felonies Misdemeanors Offenses (infractions) Treason and espionage Inchoate offenses

Felonies Felonies are serious crimes that are punishable by a year or more in prison or by death. Convicted felons may lose certain privileges Many states and the federal government use a number or letter scheme to differentiate among the varying degrees of severity of felony crimes.

Misdemeanor Misdemeanors are less serious crimes that are punishable by up to a year in a local correctional facility. Most misdemeanants receive a fine and probation.

Offenses Offenses are violations of the criminal law. Technically all crimes are offenses, but the term “offense” is also used specifically to refer to minor violations of the law that are less serious than misdemeanors. Another word for such minor law violations is infraction. People committing infractions are usually given a ticket and released until court.

Treason and Espionage Treason and espionage are serious felonies. Treason—a U.S. citizen’s action to help a foreign government overthrow, make war against, or seriously injure the United States. Espionage—gathering, transmitting, or losing information relating to national defense in such a manner that the information becomes available to enemies of the U.S. and may be used to their advantage.

Inchoate Offenses Inchoate offenses are offenses not yet completed. Consists of an action or conduct that is a step toward the intended commission of another offense. Examples: conspiracies and attempts.

General Features of Crime The essence of crime consists of three elements: Actus reus (the criminal act) Mens rea (a culpable mental state) Concurrence of the two

The Criminal Act Actus reus—the guilty act There has to be an act. Thoughts alone are not sufficient to constitute a crime. To be something (like a drug addict) is not enough. Actus reus can include: Threats Omission to act Attempted criminal acts Conspiracies

A Guilty Mind (Mens Rea) Mens rea refers to a person’s mental state at the time the act was committed. There are four levels of mens rea: Purposeful Knowing Reckless Negligent Mens rea is not the same as motive.

Strict Liability and Mens Rea Strict liability offenses are a special category of crime that require no culpable mental state. The purpose of these absolute liability offenses is to protect the public. Examples include: Traffic laws Narcotics laws

Concurrence Concurrence requires that the guilty mind and guilty act occur together for a crime to take place.

Other Features of a Crime To fully appreciate contemporary understanding of crime, some scholars recognize five additional principles of crime: Causation Resulting harm Legality principle (includes the notion that ex post facto laws are not allowed) Punishment principle Necessary attendant circumstances

Elements of a Specific Crime Elements of a crime are specific legal aspects that the prosecution must prove beyond a reasonable doubt to obtain a conviction. For example, the elements of first-degree murder might be: An unlawful killing Of a human being, Intentionally By another person With malice

The Corpus Delicti of a Crime Corpus delicti literally means the “body of crime.” A person cannot be tried for a crime unless it can first be proven that: A criminal law has been violated, and A person is criminally responsible.

Types of Defenses to a Criminal Charge Those who are charged with a crime typically offer some defense attempting to show why they should not be liable for a criminal charge. There are four broad categories of defenses: Alibi Justifications Excuses Procedural defenses

Types of Defenses

Alibi An alibi is a statement or contention by the defendant stating that he or she could not have committed the crime in question because he or she was somewhere else at the time of the crime.

Justifications With justification defenses, defendants admit committing the offense, but believes that they should not be held criminally responsible because of a legally sufficient justification for their actions (lesser of two evils). Examples: Self-defense Defense of others Defense of home and property Necessity Consent Resisting unlawful arrest

Self-Defense Self-defense makes the claim that it was necessary to inflict harm on another to ensure one’s own safety in the face of near-certain injury or death. Retreat rule—If the opportunity to escape exists, then the courts require that the victim take that opportunity and flee. If the opportunity does not exist, then the victim can use reasonable force to defend herself.

Defense of Others You may use reasonable force to defend others who are or who appear to be in imminent danger. Sometimes called the alter ego rule. Defense of others does NOT include entering an illegal fight to help a family member or friend.

Defense of Home and Property Most jurisdictions allow for the use of reasonable, non-deadly force in defense of one’s property. If that property is one’s home, the castle exception to the retreat rule applies. It is not necessary to retreat from one’s own home before resorting to deadly force in the face of an immediate threat.

Necessity One can sometimes violate the law when the purpose of the action is to prevent even greater harm. Crown v. Dudley & Stephens

Consent If harm comes to an individual after she agreed to participate in the activity, then the question that is raised is this: Was a crime committed if the victim gave her consent? Example: victim dies during “rough sex.”

Resisting Unlawful Arrest A person has the right to resist arrest if the arrest is unlawful.

Excuses With excuse defenses, defendants admit committing the offense, but believe that they should not be held criminally responsible because of some personal condition or circumstance at the time of the act. Examples: Duress Age Mistake Involuntary intoxication Unconsciousness Provocation Insanity Diminished capacity Mental incompetence

Duress Duress is an unlawful threat or coercion that induces a person to act in a way they normally would not act. Often not a useful defense when serious physical harm ensues.

Age Age is an excuse defense commonly called “infancy.” It is rooted in the belief that children cannot logically reason until around age seven. Therefore, only older children may be held responsible for crimes.

Mistake 1. Mistake of law 2. Mistake of fact Two types of mistakes serve as defenses: 1. Mistake of law Rarely acceptable 2. Mistake of fact Understanding of facts is incorrect

Involuntary Intoxication Sometimes, people are tricked into consuming intoxicating substances. Drugs or alcohol (though being “tricked”into consuming alcohol may be difficult to prove)

Unconsciousness A person cannot be held responsible for anything he or she does while unconscious. Examples: Sleepwalking Epileptic seizures Neurological dysfunction

Provocation Provocation recognizes that a person can be emotionally enraged by another who may intend to elicit just such a reaction. It is more acceptable in minor offenses. Sometimes used in cases where a wife kills her husband or a child kills her father after claiming years of abuse.

Insanity Insanity is a legal definition, not a medical one. Several different interpretations of insanity exist. M’Naghten rule Irresistible impulse Durham rule Substantial capacity test Brawner rule Guilty, but mentally ill Temporary insanity Diminished capacity

FIGURE 4–1 Standards for insanity determinations by jurisdiction.

M'Naghten Rule According to the M'Naghten Rule a person is not guilty of a crime if, at the time of the event, they either did not know what they were doing, or did not know that what they were doing was wrong.

Irresistible Impulse … defendant knows what he is doing and knows that it is wrong, but cannot help himself.

Durham Rule … a person is not criminally responsible for their behavior if their illegal action was the result of some mental disease or defect. Durham v. U. S. (1954)

The Substantial Capacity Test … a person lacked the substantial capacity to control his or her behavior. Found in the Model Penal Code of the American Law Institute

Brawner Rule The Brawner Rule places responsibility for deciding insanity squarely on the shoulders of the jury. The jury decides if a defendant can be justly held responsible for a criminal act. U. S. v. Brawner (1972)

Guilty but Mentally Ill (GBMI) “Guilty but mentally ill” was created in response to public frustration with the insanity and responsibility issue. This can be established if: Every element necessary for a conviction has been proven beyond a reasonable doubt; Defendant is found mentally ill at time of offense; and Defendant is found NOT to have been legally insane at time crime was committed.

Temporary Insanity Offender claims to only have been insane at the time of the offense.

The Insanity Defense under Federal Law The federal Insanity Defense Reform Act (IDRA) was passed in 1984. IDRA places the burden of proof of insanity on the defendant.

The Insanity Defense under Federal Law Insanity is defined as: a condition in which the defendant can be shown to have been suffering under a “severe mental disease or defect” and as a result, “was unable to appreciate the nature and quality or the wrongfulness of his acts.”

Consequences of an Insanity Ruling An insanity ruling is not an “easy way out.” The judge may order the person to undergo treatment until he or she is cured. In cases of a GBMI ruling, a judge may impose any sentence legally valid for the crime, though often psychiatric treatment is included.

Diminished Capacity Diminished capacity, or diminished responsibility, is based on claims of a mental condition that may be insufficient to exonerate the defendant of guilt but that may be relevant to specific mental elements of certain crimes or degrees of crimes.

Mental Incompetence Sometimes courts find suspects “incompetent to stand trial.” A person deemed competent to stand trial must be capable of understanding the nature of the proceeding and must be able to assist in his or her own legal defense. Assesses the suspect’s condition immediately before trial.

Procedural Defenses With procedural defenses, defendants claim that they were in some 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. Examples: Entrapment Double jeopardy Collateral estoppel Selective prosecution Denial of speedy trial Prosecutorial misconduct Police fraud

Entrapment Entrapment occurs when agents of law enforcement improperly or illegally induce a person to commit a crime that he or she would not otherwise have committed.

Double Jeopardy The Fifth Amendment prohibits double jeopardy. Double jeopardy does not apply: In cases of trial error When there’s been a hung jury When it has been declared a mistrial One may still be tried: In both federal and state courts In both civil and criminal courts

Collateral Estoppel Similar to double jeopardy. Facts that have already been determined by a “valid and final judgment” cannot become the object of a new litigation.

Selective Prosecution Based on the Fourteenth Amendment’s equal protection clause, selective prosecution may be used in cases where more than one person was suspected but not actively pursued.

Denial of a Speedy Trial The Sixth Amendment guarantees the right to a speedy trial. The federal government and most states have laws (speedy trial acts) that set a reasonable period for a trial to be considered speedy. If the limit is exceeded, the person is set free and no trial can occur.

Prosecutorial Misconduct Acts of prosecutorial misconduct are those undertaken by prosecutors that give the government an unfair advantage or that prejudice the rights of a defendant or a witness.

Police Fraud Police fraud include allegations that the police violated the law, as with planting evidence.