1 Book Cover Here Copyright © 2010, Elsevier Inc. All rights Reserved Chapter 1 Defining Crime Criminal Law Ninth Edition

2 Copyright © 2010, Elsevier Inc. All rights Reserved Definitions of Crime and Criminal Law What is a crime? Blackstone, a famous English jurist, defined crime as “an act committed or omitted in violation of public law, either forbidding or commanding it.” “A crime may be generally defined as the commission or omission of an act which the law forbids or commands under pain of punishment to be imposed by the state by a proceeding in its own name." 1.2

3 Definitions of Crime and Criminal Law What is a crime? “A crime is a violation or a neglect of legal duty, of so much public importance that the law, either common or statute, provides punishment for it.” “An offense defined by this code (Model Penal Code) or by any other statute of this state, for which a sentence of death or of imprisonment is authorized, constitutes a crime.” Copyright © 2010, Elsevier Inc. All rights Reserved 1.2

4 Definitions of Crime and Criminal Law Criminal Law The branch or division of law that defines crimes and provides for their punishment. In a criminal case, the sovereign, or state, is the plaintiff, and the purpose of the prosecution is to preserve the public peace, or redress an injury to the public at-large. Copyright © 2010, Elsevier Inc. All rights Reserved 1.2

5 Definitions of Crime and Criminal Law Substantive Criminal Law Declares what acts are crimes and prescribes the punishment for committing them. Is concerned with the definition of homicide and the elements that distinguish homicide from manslaughter. Copyright © 2010, Elsevier Inc. All rights Reserved 1.2

6 Definitions of Crime and Criminal Law Procedural Criminal Law Regulates the steps by which one commits a crime is to be punished. Is concerned with whether or not the due process steps required during the pretrial period and during trial were followed before a conviction. Copyright © 2010, Elsevier Inc. All rights Reserved 1.2

7 Definitions of Crime and Criminal Law Objectives of Criminal Law Make it possible for individuals to coexist in society, Define the wrongs that are considered necessary to protect the individuals, Define the method of determining guilt or innocence, and Designate the type of punishment or treatment following conviction for violating the laws of society. Copyright © 2010, Elsevier Inc. All rights Reserved 1.2

8 The Purpose of Criminal Law The purpose of criminal law is to protect society so that members of that society can be reasonably secure in carrying out their constructive activities. Social contract Originating with Thomas Hobbes and John Locke. Laws resulted from the combination of men who agreed, for mutual protection, to surrender individual freedom of action. Copyright © 2010, Elsevier Inc. All rights Reserved 1.3

9 The Purpose of Criminal Law Three forms of harm that criminal law protects against: Protection from the harm caused by others, Protection from the harm caused by ourselves, and Protection of societal morals. The most obvious protection that the criminal law provides is protection against harm caused by others. Copyright © 2010, Elsevier Inc. All rights Reserved 1.3

10 The Purpose of Criminal Law In 1933, Michael and Adler listed three factors that should be considered when deciding whether a harmful behavior should be made criminal: The enforceability of the law, The effects of the law, and The existence of other means to protect society against undesirable behavior. Copyright © 2010, Elsevier Inc. All rights Reserved 1.3

11 Common Law Crimes Common Law Is the accumulation of early English case law (except for those cases from equity and ecclesiastical courts). Origin of American laws. Copyright © 2010, Elsevier Inc. All rights Reserved 1.4

12 Common Law Crimes William the Conquerer (1066) and his son, Henry I (1100–1135) were responsible for the development of a national court system. The effect of the national court system was a gradual consistency in court decisions that led to the establishment of common decisions in similar cases. Copyright © 2010, Elsevier Inc. All rights Reserved 1.4

13 Common Law Crimes By 1400, judges held themselves bound to decide the cases that came before them according to established principles. Eventually, legislation supplemented common law, but common law still continued as a body of authoritative material. Copyright © 2010, Elsevier Inc. All rights Reserved 1.4

14 Common Law Crimes William Blackstone published Commentaries on the Laws of England (1765). Became the starting point for American criminal law. Copyright © 2010, Elsevier Inc. All rights Reserved 1.4

15 Statutory Crimes Most state law is now statutory law rather than common law. In the federal system, there are no common law crimes, because the federal government has only the power that is delegated to it by the Constitution. Statutory Law Law created by, or depending upon, a statute, as distinguished from equitable or common law rules. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

16 Statutory Crimes When a legislative body (federal or state) determines that certain conduct is undesirable and should be forbidden, a bill is prepared describing what conduct should be prohibited. This is introduced in the House and Senate and is voted upon by the elected members. If both houses approve the bill, it then goes to the governor or president for consideration or approval. If the chief executive signs the legislation, the bill becomes a law. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

17 Statutory Crimes State Legislation The primary police power lies with the state. Police Power The 10th Amendment to the U.S. Constitution confers upon the individual states the power to enact laws for the comfort, safety, morals, health, and prosperity of their citizens. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

18 Statutory Crimes The 10th Amendment Added to the Constitution to ensure that powers not delegated to the United States by the Constitution would remain in the states, respectively and the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

19 Statutory Crimes State Legislation State legislative bodies do have limitations when enacting laws. The laws must comply with the state constitution. Laws must also comply with the federal Constitution as interpreted by the U.S. Supreme Court. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

20 Statutory Crimes Federal Legislation The federal government has no inherent police power. The enumerated powers granted to the federal government to enact and enforce criminal laws are found primarily in article I, section 8 of the Constitution. Delegated 17 specific powers and 1 of general nature. Congress is limited by the provisions of the Constitution and especially by the Bill of Rights, the first 10 amendments. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

21 Statutory Crimes Legislation by Political Subdivision Cities, counties, townships, and municipal corporations, also have limited authority to make and enforce rules and regulations prohibiting acts or penalizing the failure to act. Municipal ordinances and the laws of other political subdivisions are subject to the same state and federal constitutional limitations and restrictions as state laws. Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

22 Statutory Crimes Model Penal Code The Model Penal Code is not the law in any state, but rather serves as a guide to state lawmakers. Created by the American Law Institute in 1962 with revisions in Copyright © 2010, Elsevier Inc. All rights Reserved 1.5

23 Constitutional Challenges The federal government does not have the power to pass a law that violates one of the rights granted by the U.S. Constitution. We are protected against laws that are vague, that punish behavior after the fact (ex post facto laws), or that infringe upon our freedom of expression, association, or religion. Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

24 Constitutional Challenges Bill of Rights 1 st Amendment—Freedom of religion, expression, association, press 2 nd Amendment—Right to bear arms as a civilian militia 3 rd Amendment—Right not to have soldiers quartered in peoples’ homes 4 th Amendment—Right to be free in person and home from unreasonable governmental search and seizure 5 th Amendment—Right to be free from compulsory self-incrimination, federal right to grand jury, protection against double jeopardy, due process 6 th Amendment—Right to an impartial jury trial that is speedy and public with specified due process elements 7 th Amendment—Right to trail in suit at common law, jury to be trier of fact 8 th Amendment—Right against excessive bail, right to be free from cruel and unusual punishment 9 th Amendment—States “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 10 th Amendment—Reserves all other powers not specifically delegated in the Constitution for the states Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

25 Constitutional Challenges Due Process and Vagueness Challenges Legislation must not be vague and must not be so uncertain as to leave doubt as to its meaning. The right to be free from vague and overbroad laws comes from the 5 th and 14 th Amendments. Due process Includes the right to notice (to know what we are being accused of). Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

26 Constitutional Challenges Equal Protection Challenges Laws that treat “similarly situated” people differently also violate the 14 th Amendment’s “equal protection” clause. Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

27 Constitutional Challenges Ex Post Facto Challenges The U.S. Constitution and provisions of the constitutions of the various states specifically prohibit ex post facto laws. Two critical elements are necessary to establish an ex post facto claim: The law must be retrospective It must disadvantage the offender affected by it Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

28 Constitutional Challenges First Amendment Challenges If the legislation infringes on rights protected by the 1 st Amendment, the legislation is unconstitutional and unenforceable. The government has a right to pass laws that do not unduly interfere with these rights. Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

29 Constitutional Challenges Privacy Challenges The right to privacy is not identified specifically in the Constitution, but has been recognized by the Supreme Court as existing based on their interpretation of what the framers meant by such rights as those previously discussed. Copyright © 2010, Elsevier Inc. All rights Reserved 1.6

30 Construction of Criminal Law Statutes Criminal law statutes are not always clear to those who interpret them. Many who are charged with criminal violations are released when their attorney convinces the court that the construction given to the statute by the state is inaccurate. Copyright © 2010, Elsevier Inc. All rights Reserved 1.7

31 Construction of Criminal Law Statutes When the meaning of the statute is doubtful, the court may take into consideration the purpose of its enactment when construing it and give effect to the intent of the legislature. The intent of the legislature is not to be ascertained from any particular expression or section but from the whole act. Copyright © 2010, Elsevier Inc. All rights Reserved 1.7

32 Classification of Crimes Classification According to the Nature of the Crime Mala in se These are acts that are immoral or wrong in themselves, or acts that are naturally evil. Mala in se crimes are considered wrong in any society and include the common law crimes of murder, rape, arson, burglary, and larceny. Copyright © 2010, Elsevier Inc. All rights Reserved 1.8

33 Classification of Crimes Classification According to the Nature of the Crime Mala prohibita These crimes are not naturally evil, but are prohibited by statute because they infringe upon the rights of others. It is wrong because it is prohibited by statute. Copyright © 2010, Elsevier Inc. All rights Reserved 1.8

34 Classification of Crimes Classification According to Degree Felonies Crimes punishable by death or imprisonment in a state prison or penitentiary are felonies. A crime may be made a felony by reference to the punishment attached or it may be made a felony by a statute that specifically says that it is a felony. Felonies are punishable by at least one year in prison. Copyright © 2010, Elsevier Inc. All rights Reserved 1.8

35 Classification of Crimes Misdemeanors Misdemeanors are offenses for which the punishment is other than death or imprisonment in a state prison, or that have not been designated felonies by statute. A person convicted of a misdemeanor will ordinarily be incarcerated in a local jail or be required to pay a fine, but ordinarily will not be sent to a state penitentiary. Copyright © 2010, Elsevier Inc. All rights Reserved 1.8

36 Classification of Crimes Treason Treason is the only crime that is described in the Constitution. Those who commit treason threaten the very existence of the nation, it is given a higher classification than a felony. The Constitution also provides that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. Copyright © 2010, Elsevier Inc. All rights Reserved 1.8

37 Classification of Crimes Classification Based on Punishment States often choose to distinguish, or classify, their criminal statutes based on the range of possible sentences available upon conviction. Copyright © 2010, Elsevier Inc. All rights Reserved 1.8

38 Distinction between Crimes and Torts When one person is wronged by another, he or she may seek a remedy against the wrongdoer by bringing what is known as a civil action. The state may also initiate a criminal action against that person for the same wrongful act. The process by which a person initiates an action against another is known as the law of torts. A function of tort law is to compensate an injured person for the harm he or she has suffered. Copyright © 2010, Elsevier Inc. All rights Reserved 1.9

39 Distinction between Crimes and Torts Civil law resolves the conflicting interest of individuals. Criminal law deals with public wrong doings and views a crime as a violation of the public’s rights and as an injury to the whole community. Copyright © 2010, Elsevier Inc. All rights Reserved 1.9

40 Distinctions between Torts and Crimes Torts Private wrong Action initiated by an individual Private attorney represents plaintiff Action for money damages Unanimous verdict of jury not usually required Proof by a preponderance of the evidence Crimes Public wrong Action taken by the state Prosecutor represents the state Punishment by fine or imprisonment Unanimous verdict of jury usually required Proof beyond a reasonable doubt Copyright © 2010, Elsevier Inc. All rights Reserved 1.9

41 Burden of Proof—Prosecution Criminal Cases In a criminal case, the state has the burden of proving the guilt of the accused beyond a reasonable doubt. The prosecution has the responsibility to prove each element of the crime with which the accused is charged. These elements must be proved in accordance with the definition of each element as described by the court. If any element is not proved beyond a reasonable doubt, the person charged cannot be convicted of the crime charged. Copyright © 2010, Elsevier Inc. All rights Reserved 1.10

42 Burden of Proof—Prosecution Civil Cases The degree of proof is a “preponderance of the evidence.” Copyright © 2010, Elsevier Inc. All rights Reserved 1.10

43 Burden of Proof—Prosecution The “beyond a reasonable doubt” standard is a constitutional requirement. In 1970, the Supreme Court left no doubt about the requirement in its holding in In re Winship. Copyright © 2010, Elsevier Inc. All rights Reserved 1.10

44 Burden of Proof—Defendant The burden to prove an affirmative defense such as insanity or self-defense is by a preponderance of the evidence and not by evidence beyond a reasonable doubt. In 1984, Congress enacted the Insanity Defense Reform Act of Copyright © 2010, Elsevier Inc. All rights Reserved 1.11

45 Burden of Proof—Defendant The standard of proof—clear and convincing evidence—is a higher standard than a mere preponderance of the evidence, but is less than beyond a reasonable doubt. In other situations in which the defendant claims an affirmative defense, the state may require that the defense be proven by either a preponderance or clear and convincing evidence. Copyright © 2010, Elsevier Inc. All rights Reserved 1.11