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CHAPTER 3

INSIDE CRIMINAL LAW

Learning Objectives

After reading this chapter, students should:

1. List the four written sources of American criminal law.

2. Explain the two basic functions of criminal law.

3. Discuss the primary goals of civil law and criminal law and explain how these goals are realized.

4. Delineate the elements required to establish mens rea (a guilty mental state).

5. List and briefly define the most important excuse defenses for crimes.

6. Discuss a common misperception concerning the insanity defense in the United States.

7. Describe the four most important justification criminal defenses.

8. Explain the importance of the due process clause in the criminal justice system.

Lesson Plan

Correlated to PowerPoints

I. Written Sources of American Criminal Law

Learning Objective 1: List the four written sources of American criminal law.

A. American Criminal Law is codified, or written down and accessible to all

i. American Criminal Law is also referred to as “substantive” criminal law, which is available in several written sources

a. The U.S. Constitution and constitutions of the various states

b. Statutes passed by Congress and by state legislatures, plus local ordinances

c. Regulations created by regulatory agencies

d. Case law (court decisions)

Class Discussion/Activity Ask students to discuss the issue of authority. What happens if a judge makes a decision that is in violation of the current case law?

What If Scenario What if . . . your state legislature decided that it wanted to “regulate” personal and business behavior that has traditionally been within the province of the federal government. For example, your state legislature is about to pass laws limiting the number of Canadians who would be eligible to live and work in your state. You are asked to fashion an argument why the law is necessary, and why your state has the right to create and enforce such a law. What arguments would you make in light of a certain federal lawsuit? Use the controversial Arizona immigration laws as a guide.

B. Constitutional Law

i. The law as expressed in the U.S. Constitution and the constitutions of various states

ii. The U.S. Constitution is the supreme law of the land

iii. Each state has its own constitution, which is the supreme law of the respective state.

C. Statutory Law

i. Body of law enacted by legislative bodies

a. Federal statutes are laws enacted by the U.S. Congress

b. State statutes are laws enacted by state legislatures

c. Ordinances passed by cities and counties

ii. Legal Supremacy

a. There are essentially 52 different criminal codes in the United States –one for each state, the District of Columbia, and the federal government

b. Supremacy clause of the Constitution establishes that federal law is the supreme law of the land and shall prevail when in conflict with state constitutions or statutes.

Media Tool “Legalized Marijuana in Washington and Colorado May Be a Problem for Federal Government” · http://www.youtube.com/watch?v=n6wJEEo55fc · A short clip about the controversy of state drug laws and federal drug laws

iii. Ballot Initiatives

a. On a state and local level, voters can write or rewrite criminal statutes through a form of direct democracy known as the ballot initiative

b. If the majority of voters approve of a measure, it is voted into law

D. Administrative Law

i. Rules, orders, and decisions of regulatory agencies

a. Regulatory agencies are federal, state, or local government agencies established to perform a specific function

b. Example: Occupational Safety and Health Administration (OSHA) oversees the safety and health of American workers

ii. Disregarding certain laws created by regulatory agencies can be a criminal violation

E. Case Law

i. Rules of law announced in court decisions allowing precedent to stand from previous cases

ii. Includes interpretations of constitutional provisions, of statuses enacted by legislatures, and of regulations created by administrative agencies

iii. Also referred to as common law or judge-made law

II. The Purposes of Criminal Law

Learning Objective 2: Explain the two basic functions of criminal law.

A. Protect and Punish: The Legal Function of the Law

i. Primary function is to maintain social order by protecting citizens from criminal harm

a. Harms to individual citizens’ physical safety and property

b. Harms to society’s collective interests

B. Maintain and Teach: The Social Function of the Law

i. Expressing Public Morality

a. Reflect the values and norms of society

b. A society’s view of morality changes over time

c. Public morals are not uniform across the entire nation

ii. Teaching Societal Boundaries

a. Laws teach values as expressed expectations of society

b. Various forms of punishment can drive “social” order

III. Classification of Crimes

Learning Objective 3: Discuss the primary goals of civil law and criminal law and explain

how these goals are realized.

A. Civil Law and Criminal Law

i. Two categories of law distinguished by their primary goals

a. Criminal Law

1. Criminal justice system is concerned with protecting society form harm by preventing and prosecuting crimes

2. Persons found guilty of a crime will be punished by government with fines, imprisonment, or both

b. Civil Law

1. Includes all types of law other than criminal law

2. Concerned with disputes between private individuals and between entities

3. Proceedings in civil lawsuits are normally initiated by plaintiffs (the injured party) against defendants (the accused party)

4. Disputes may involve terms of a contract, ownership of property, or an automobile accident

ii. Guilt and Responsibility

a. A criminal court determines if a defendant is guilty of the criminal offense they have been charged with

b. A civil court is concerned with assigning responsibility, or liability, for the plaintiff’s injury or loss

iii. Burden of Proof

a. Two systems, criminal law and civil law, are completely separate in the modern legal system, but have similarities

1. Both attempt to control behavior by imposing sanctions on those who violate the law

2. Often supplement each other, because a victim may file a civil suit against an individual who is also the target of criminal prosecution

b. The burden of proof in criminal court is beyond a reasonable doubt, a much greater standard than what is applied in civil court

c. The burden of proof in civil court is preponderance of the evidence

B. Felonies and Misdemeanors

i. Crimes are classified as felonies or misdemeanors based on their degree of seriousness

a. Felonies are serious crimes punishable by death or imprisonment in a federal or state penitentiary for 1 year or longer

1. Capital offenses – maximum penalty is death

2. First degree felonies – maximum penalty of life imprisonment

3. Second degree felonies – maximum of 10 years of imprisonment

4. Third degree felonies – maximum of 5 years of imprisonment

ii. Types of Misdemeanors

1. Any crime that is not a felony

2. Punishable by a fine or imprisonment up to one year

3. Gross misdemeanors: punishable by thirty days to one year in jail

4. Petty misdemeanors: punishable by fewer than 30 days in jail

iii. Infractions

a. Petty offenses – punishable only by a small fine and does not appear on a wrongdoer’s criminal record

C. Mala in Se and Mala Prohibita

i. Mala in Se

a. Considered wrong even if there was no law prohibiting it

b. Said to go against “natural laws”

c. Against the “natural, moral, and public” principles of society

d. Examples include murder, rape, and theft

ii. Mala Prohibita

a. Refers to acts that are considered crimes only because they have been codified as such through statute

b. “Human-made” laws

c. Considered wrong only because it has been prohibited; it is not inherently wrong

d. Definitions can vary from country to country or state to state

IV. The Elements of a Crime

Learning Objective 4: Delineate the elements required to establish mens rea (a guilty mental state).

A. General Requirements

i. Criminal law requires that the corpus delicti, “the body of the crime” be proved before a person can be convicted of a wrongdoing

ii. Corpus delicti can be defined as “proof that a specific crime has actually been committed by someone”

iii. It consists of the basic elements of any crime, which include (1) actus reus, or a guilty act; (2) mens rea, or a guilty intent; (3) concurrence, or the coming together of the criminal act and the guilty mind; (4) a link between the act and the legal definition of the crime; (5) any attendant circumstances; and (6) the harm done, or the result of the criminal act.

B. Criminal Act: Actus Reus

i. Guilty or prohibited act

ii. The act of commission must be voluntary

iii. A Legal Duty

a. In some cases an act of omission can be a crime, when the defendant had a legal duty to perform the omitted act

iv. A Plan or Attempt

a. A person can be punished for taking substantial steps toward the commission of an offense, or attempting to commit the crime; the punishment for an attempt is generally less severe than for a completed act

C. Mental State: Mens Rea

i. Guilty intent or requisite intent

ii. Guilty mental state includes elements of purpose, knowledge, negligence, and recklessness

iii. Categories of Mens Rea

a. A defendant has purposely committed a crime when he or she desires to engage in certain criminal conduct or to cause a certain criminal result

b. A defendant has knowingly committed an illegal act when he or she is aware of the illegality, believes the illegality exists or suspects the illegality, but fails to do anything to dispel his or her belief

c. Negligence

1. Involves the mental state in which the defendant grossly deviates from the standard of care that a reasonable person would use under the same circumstances

d. Recklessness

1. “Consciously disregard[ing] a substantial and unjustifiable code”

iv. Degrees of Crime

a. Willful murder

1. First Degree Murder

i. Premeditation

ii. Deliberate – planned and decided on

2. Second Degree Murder

i. 15-25 years in prison

ii. There was no premeditation or deliberation

iii. The offender had malice aforethought towards the

b. Types of Manslaughter

1. Voluntary manslaughter – intent to kill may be present, but malice is lacking

2. Involuntary manslaughter – offender’s acts may have been careless, but he or she had no intent to kill

v. Strict Liability

a. General requirements

1. For certain crimes, criminal law holds the defendant to be guilty even if intent to commit the offense is lacking

2. Generally involves endangering the public welfare in some way

3. Drug control statutes, health and safety regulations, statutory rape provisions, and traffic ordinances are all strict liability laws

b. Protecting the Public

1. The goal of strict liability is to protect the public by eliminating the possibility that wrongdoers could claim ignorance or mistake to absolve themselves of criminal responsibility

c. Protecting Minors

1. Statutory rape is considered a strict liability crime even if the minor consents to the sexual act because the minors are considered incapable of making a rational decision on the matter

vi. Accomplice Liability

a. Under certain circumstances, a person can be charged with and convicted of a crime that he or she did not commit

b. Occurs when the suspect has acted as an accomplice to a crime

c. To be found guilty as an accomplice, suspect needs to have “dual intent”

1. To aid the person who committed the crime

2. Such aid would lead to the commission of the crime

What If Scenario What if . . . two men are facing the death penalty for the murder of a woman. Evidence shows that only one man, defendant A, struck the fatal blow with a hammer to the woman’s head, while the other man, defendant B, held her down while defendant A beat her to death. Should defendant B face the death penalty? What if the two men are tried separately, and the jury in the first trial spares the life of defendant A, but the jury in the second trial determines that defendant B should suffer the death penalty? Should that be permissible? Why or why not? Now, change the scenario, above. What if defendant B had merely been the “getaway driver.” Should he, also, face death for his part in the murder, even though he was not even in the room when the fatal blow was struck? Why or why not?

D. Concurrence

i. Coming together of the criminal act and the guilty mind

ii. The guilty act and the guilty intent must occur together

E. Causation

i. A link between the act and the legal definition of the crime

ii. Criminal law requires that the criminal act caused the harm suffered

F. Attendant Circumstances

i. General requirements

a. Any accompanying circumstances

b. Allow for differentiating among varying degrees of a crime

ii. Requirements of Proof and Intent

a. Attendant circumstances must be proved beyond a reasonable doubt

b. The means rea of the defendant regarding each attendant circumstance must be proved

iii. Hate Crime Laws

a. Hate crime laws consider a motive of bias an attendant circumstance and increase the criminal penalty accordingly

b. Hate crime laws provide greater sanctions against those who commit crimes motivated by bias against a person based on race, ethnicity, religion, gender, sexual orientation, disability, or age.

G. Harm

i. For a crime to occur, some harm must have been done to a person or to property

ii. A certain amount of crimes are categorized depending on the harm done to the victim, regardless of the intent behind the criminal act

iii. Many acts are deemed criminal if they could do harm that the laws try to prevent (inchoate offenses)

V. Defenses Under Criminal Law

Learning Objective 5: List and briefly define the most important excuse defenses for crimes.

Learning Objective 6: Discuss a common misperception concerning the insanity defense in the United States.

Learning Objective 7: Describe the four most important justification criminal defenses.

A. Criminal Responsibility and the Law

i. Infancy

a. Under the earliest criminal codes of the United States, children under 7 years of age could never be held legally accountable for crimes

b. The accused’s wrongdoing is excused because he or she is too young to fully understand the consequences of his or her actions

What If Scenario What if . . . a twelve year old boy, while imitating an action hero he saw on TV using a weapon owned by his dad, kills his best friend. As the twelve year old boy’s lawyer, what defense would you most likely use at his murder trial? At what age do you believe an “infant” is able to understand the consequences of his actions? Should there be an arbitrary age for every type of crime? Why or why not would this be appropriate?

ii. Insanity

a. When the defendant’s state of mind is such that he or she cannot claim legal responsibility for his or her actions

b. Measuring Sanity

1. A person is excused for his or her criminal wrongdoing if, as a result of mental disease or defect, he or she:

i. does not perceive the physical nature or consequences of his or her actions

ii. does not know that his or her conduct is wrong and/or criminal

iii. is sufficiently unable to control his or her conduct so as to be held accountable for it

2. Diverse tests employed to determine insanity

i. The right-wrong test, or M’Naughten Rule – a person is legally insane and therefore not criminally responsible if, at the time of the offense, he or she was not able to distinguish between right and wrong

ii. The substantial-capacity test, or ALI/MPC test – the defendant lacks “substantial capacity” to either “appreciate the wrongfulness” of his or her conduct or conform that conduct “to the requirements of the law”

iii. Irresistible-impulse test supplemented the M’Naughten Rule – a person may be found insane even if he or she was aware that a criminal act was “wrong” provided that some “irresistible impulse” resulting from a mental deficiency drove him or her to commit the crime

c. Guilty But Mentally Ill

1. Allows a jury to determine that a defendant is “mentally ill” though not insane, and therefore criminally responsible for his or her actions

2. Defendants found guilty but mentally ill spend the early years of their sentence in a psychiatric hospital

d. Determining Competency

1. Psychiatry is commonly used to determine the competency of a defendant to stand trial

2. Competency hearings reveal if the defendant is competent to understand the charges filed against him or her and cooperate with a lawyer presenting a defense

Media Tool “A Crime of Insanity” http://www.pbs.org/wgbh/pages/frontline/shows/crime/ · A website maintained by the Public Broadcasting System which delivers information about the insanity defense.

iii. Intoxication

a. Involuntary

1. Occurs when a person is physically forced to ingest or is injected with an intoxicating substance, or is unaware that a substance contains drugs or alcohol

2. A viable defense to a crime if the substance leaves the person unable to form the mental state necessary to understand that the act committed while under the influence was wrong

b. Voluntary

1. Not a defense in itself

2. Used when arguing that mens rea was negated and was not in the right state of mind that a crime requires

iv. Mistake

a. Mistake of Law

1. Ignorance of the law can be a modified defense

2. If the law was not published or reasonably known to the public

3. If the person relied on an official statement of the law that was erroneous

b. Mistake of Fact

1. Operates as a defense if it negates the mental state necessary to commit a crime

B. Justification Criminal Defenses and the Law

i. Duress

a. Exists when the wrongful threat of one person induces another person to perform an act that she or he would otherwise not perform

b. Requirements must be met:

1. Threat must be of serious bodily harm

2. Harm threatened must be greater than the harm caused by the crime

3. Threat must be immediate and inescapable

4. Defendant must have become involved in the situation through no fault of his or her own

ii. Justifiable Use of Force – Self-Defense

a. A person who believes he or she is in danger of being harmed by another is justified in defending himself or herself with the use of force

b. Defense of one’s dwelling, the defense of other property, and the prevention of a crime are also justified

c. The Amount of Force

1. Generally people can use the amount of nondeadly force necessary to protect themselves, their dwellings, or other property to prevent the commission of a crime

2. Deadly force can be used in self-defense if there is a reasonable belief that imminent death or bodily harm will otherwise result

d. The Duty to Retreat

1. When outside the home or in a public space, some states assert there is a duty to retreat; in other words, deadly force cannot be used if there is an opportunity to “run away” and avoid the conflict

e. The George Zimmerman case

1. Stand your ground law

2. Zimmerman shot and killed unarmed seventeen-year-old Travyon Martin

3. Zimmerman claimed that he had pulled the trigger only after being attacked by Martin

4. Zimmerman was later arrested and put on trial

5. He was not convicted by the jury because he had shown injuries sustained during the encounter with Martin that made his self-defense claims believable to the jury

Media Tool Texas Man Found Guilty of Murder in “Stand Your Ground” Shooting; CNN Video http://news.linktv.org/videos/texas-man-guilty-of-murder-in-stand-your-ground-shooting · A short clip about the stand your ground law and its issues

iii. Necessity

a. Justifiable if “the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged”

b. Used as a defense against criminal liability in which the defendant asserts that circumstances required him or her to commit an illegal act

iv. Entrapment

a. A justification defense that criminal law allows when a police officer or government agent deceives a defendant into wrongdoing

b. Police cannot persuade a suspect in a criminal act, nor can they coerce a suspect into doing so, even if they are certain he or she is a criminal

VI. Procedural Safeguards

Learning Objective 8: Explain the importance of the due process clause in the criminal justice system.

A. Substantive and procedural criminal law

i. Substantive criminal law – defines the acts that the government will punish

ii. Procedural criminal law – defines laws for criminal procedures

B. The Bill of Rights

i. Ten Amendments adopted into the Constitution in 1791

ii. Have been interpreted by the U.S. Supreme Court

iii. Serving as safeguards for those accused in this country

a. Fourth Amendment

1. Protection from unreasonable searches and seizures

2. Requirement that no warrants for a search or an arrest can be issued without probable cause

b. Fifth Amendment

1. Requirement that no one can be deprived of life, liberty, or property without “due process” of the law

2. Prohibits against double jeopardy

3. Guarantees that no person can be required to be a witness against himself or herself

c. Sixth Amendment

1. Guarantees a speedy trial, a trial by jury, a public trial

2. Guarantees the right to confront witnesses, and the right to a lawyer at various stages of criminal proceedings

d. Eighth Amendment

1. Protects against excessive bail and fines

2. Protects against cruel and unusual punishment

C. Due Process

i. General ideas

a. Due process clause, as expressed in the Fifth and Fourteenth Amendments, requires that the government not act unfairly or arbitrarily

b. The government cannot rely on individual judgment and impulse when making a decision, but must stay within the boundaries of reason and the law

ii. Procedural Due Process

a. Procedural due process mandates that law must be carried out by a method that is fair and orderly

b. It requires that certain procedures be followed in administering and executing law so that an individual’s basic freedoms are not violated

iii. Substantive Due Process

a. Substantive due process requires that laws themselves be reasonable

iv. The Judicial System’s Role in Due Process

a. U.S. Supreme Court plays an important role

b. Decides whether due process rights exist

D. Victim’s Rights in the Criminal Justice System

a. Congress proposed a Victim’s Rights Amendment to the U.S. Constitution

ii. Legislative Action

a. The right to be informed

b. The right to be present

c. The right to be heard

iii. Enforceability

a. Federal and state laws do not contain sufficient enforcement mechanisms

b. Victim’s rights legislation gives criminal justice officials the discretion to deny the very protection they contain

Lecture Notes

Chapter 3 introduces students to the four key sources of American criminal law: the U.S. Constitution and the state constitutions, federal and state statutes, administrative agency regulations, and case law. It also introduces the purposes of American criminal law. The primary function of law is to protect citizens from harm, but law also serves to maintain and teach social values and to establish social boundaries. It may be helpful to pause at this point in your lecture and allow students to brainstorm examples of laws that satisfy each of these functions. For example, laws that forbid bigamy and gambling are ensuring that social values are not breached, while laws that regulate driving both protect the safety of citizens and teach individuals the expectations of society.

Chapter 3 next introduces students to the classification of crime. There are three major ways that crime can be classified: (1) civil law and criminal law, (2) felonies and misdemeanors, and (3) crimes mala in se and mala prohibita. Begin by discussing with students the differences between criminal and civil law. Criminal law exists to protect society from crime by punishing criminal offenses. Civil law is designed to resolve disputes between two parties. While students are primarily interested in criminal law, there are occasions when criminal behavior is addressed in both courts. Explore with students the differences between the two systems of law and the occasions when they overlap. A second classification of crime refers to offenses that can be defined as either felonies or misdemeanors. Encourage students to explore the way offenses are classified in your area. Finally, a third classification involves determining whether offenses are sanctioned because they are inherently wrong, mala in se, or illegal because they conflict with our concept of public order, mala prohibita. Our views of morality are not fixed, but change depending on the era, or even the culture being considered. Encourage students to ponder these classifications and apply them to a variety of offenses. Stalking, for example, was criminalized as recently as 1990. Is this offense mala in se or mala prohibita? Why did behavior that was traditionally considered deviant become criminal?

Chapter 3 also introduces the concept of corpus delicti. This term refers to the body of circumstances that must exist for a crime to occur. The basic elements of any crime include actus reus (the guilty act), mens rea (criminal intent), concurrence, causation, attendant circumstances, and harm done. Students may not realize that factors beyond the criminal act must be established to support a criminal conviction. To illustrate the mechanics of building a criminal case, invite a local prosecutor to class to walk students through the process of establishing corpus delicti. Students should be encouraged to also ask about any of the previous material introduced in class regarding crime classifications.

Criminal defenses generally rely on one of two arguments, that the defendant is innocent, or that the defendant is guilty but justified in committing the criminal act. In some cases, the law “excuses” criminal defendants for their behavior. For example, criminal law recognizes that the very young do not have the ability to formulate mens rea. Likewise those who are intoxicated may lack intent, which is necessary for establishing corpus delicti. All states make some exception for those who are deemed criminally insane. It is important that students recognize that the legal definition of insanity is not consistent with the psychological definition of insanity. To be considered legally insane in most states, a defendant’s state of mind must be such that he or she did not understand their nature of his or her actions, or that those actions were wrong. A defendant can be diagnosed with mental illness and still be held criminally accountable. Justification defenses argue that the defendant committed the crime, but was justified in doing so. For example, a defendant who acts in self-defense, under duress, or out of necessity may have had no other choice that to commit the crime. A defendant who argues that he or she was the victim of entrapment asserts that they were deceived into offending by law enforcement. As with any abstract concept, criminal defenses make the most sense to students if they are anchored with real world case examples, so be sure to include them in your lecture for this chapter. This will also give students the opportunity to evaluate the validity of each of the justification and excuse defense strategies.

The final part of Chapter 3 addresses the procedural safeguards afforded to all citizens who are accused of a crime. In criminal justice, particular attention is paid to the Fourth, Fifth, Sixth, and Eighth Amendments. Explain to students that the Bill of Rights was designed to limit the power of government, rather than to protect individuals. As criminal justice practitioners they will need to operate within these confines.

Key Terms

Actus reus (pronounced ak-tus ray-uhs) - a guilty (prohibited) act. The commission of a

prohibited act is one of the two essential elements normally required for criminal liability, the

other element being the intent to commit a crime. (p. 80)

Administrative law - the body of law created by regulatory (administrative) agencies (in the

form of rules, regulations, orders, and decisions) in order to carry out their duties and

responsibilities. (p. 73)

Attempt - the act of taking substantial steps toward committing a crime while having the ability

and the intent to commit the crime, even if the crime never takes place. (p. 81)

Attendant circumstances - the facts surrounding a criminal event that must be proved to convict

the defendant of the underlying crime. (p. 85)

Ballot initiative - a procedure in which citizens, by collecting enough signatures, can force a

public vote on a proposed change to state or local law. (p. 72)

Beyond a reasonable doubt - the degree of proof required to find the defendant in a criminal

trial guilty of committing the crime. The defendant’s guilt must be the only reasonable

explanation for the criminal act before the court. (p. 77)

Bill of Rights - the first ten amendments to the U.S. Constitution. (p. 95)

Case law - the rules of law announced in court decisions. (p. 73)

Civil law - the branch of law dealing with the definition and enforcement of all private or public

rights, as opposed to criminal matters. (p. 76)

Competency hearing - a court proceeding to determine whether the defendant is mentally well

enough to understand the charges filed against her or him and cooperate with a lawyer in

presenting a defense. (p. 89)

Conspiracy – (p. 86)

Constitutional law - law based on the U.S. Constitution and the constitutions of the

various states. (p. 67)

Corpus delicti - the body of circumstances that must exist for a criminal act to have

occurred. (p. 79)

Defendant - in civil court, the person or institution against whom an action is brought. In

Criminal court, the person or entity who has been formally accused of violating a criminal law.

(p. 76)

Due process clause - the provisions of the Fifth and Fourteenth Amendments to the

Constitution that guarantee that no person shall be deprived of life, liberty, or property without

due process of law. (p. 95)

Duress - Unlawful pressure brought to bear on a person, causing the person to perform an act

that he or she would not otherwise perform. (p. 91)

Duty to retreat - the requirement that a person claiming self-defense prove that he or she

first took reasonable steps to avoid the conflict that resulted in the use of deadly force. (p. 92)

Entrapment - a defense in which the defendant claims that he or she was induced by a public

official – usually an undercover agent or police officer – to commit a crime that he or she would

otherwise have not committed. (p. 93)

Felony - a serious crime, usually punishable by death or imprisonment for a year or longer.

(p.77)

Felony-murder - an unlawful homicide that occurs during the attempted commission of a

felony. (p. 84)

Hate crime law - a statute that provides for greater sanctions against those who commit

crimes motivated by bias against an individual or a group based on race, ethnicity, religion,

gender, sexual orientation, disability, or age. (p. 85)

Inchoate offenses - conduct deemed criminal without actual harm being done, provided

that the harm that would have occurred is one the law tries to prevent. (p. 86)

Infancy - a condition that, under early American law, excused young wrongdoers of criminal

behavior because presumably they could not understand the consequences of their actions.

(p. 87)

Infraction - in most jurisdictions, a noncriminal offense for which the penalty is a fine

rather than incarceration. (p. 78)

Insanity - A defense for criminal liability that asserts a lack of criminal responsibility due to

mental instability. (p. 87)

Intoxication - a defense for criminal liability in which the defendant claims that the taking of

intoxicants rendered him or her unable to form the requisite intent to commit a criminal act. (p.

89)

Involuntary manslaughter - a negligent homicide, in which the offender had no intent to kill

his or her victim. (p. 82)

Irresistible-impulse test - a test for the insanity defense under which a defendant who knew his

or her action was wrong may still be found insane if he or she was unable, as a result of a mental

deficiency, to control the urge to complete the act. (p. 88)

Liability - in a civil court, legal responsibility for one’s own or another’s actions. (p.76)

Mala in se - a descriptive term for acts that are inherently wrong, regardless of whether they are

prohibited by law. (p. 78)

Mala prohibita - a descriptive term for acts that are made illegal by criminal statute and are not

necessarily wrong in and of themselves. (p. 78)

Mens rea (pronounced mehns ray-uh) - mental state, or intent. A wrongful mental state is usually

as necessary as a wrongful act to establish criminal liability. (p. 81)

Misdemeanor - a criminal offense that is not a felony; usually punishable by a fine and/or a jail

term of less than 1 year. (p. 78)

M’Naughten Rule - a common law test of criminal responsibility, derived from

M’Naghten’s Case in 1843, that relies on the defendant’s inability to distinguish right from

wrong. (p. 87)

Necessity - a defense against criminal liability in which the defendant asserts that circumstances

required him or her to commit an illegal act. (p. 92)

Negligence - a failure to exercise the standard of care that a reasonable person would exercise in

similar circumstances. (p. 81)

Plaintiff - the person or institution that initiates a lawsuit in civil court proceedings by filing a

complaint. (p. 76)

Precedent - a court decision that furnishes an example of authority for deciding subsequent

cases involving similar facts. (p. 73)

Preponderance of the evidence - the degree of proof required to decide in favor of one

side or the other in a civil case. In general, this requirement is met when a plaintiff proves that a

fact more likely than not is true. (p. 77)

Procedural criminal law - rules that define the manner in which the rights and duties of

individuals may be enforced. (p. 94)

Procedural due process - a provision in the Constitution that states that the law must be carried

out in a fair and orderly manner. (p. 95)

Recklessness - the state of being aware that risk does or will exist and nevertheless acting in a

way that consciously disregards this risk. (p. 81)

Self-defense - the legally recognized privilege to protect one’s self or property from injury by

another. (p. 91)

Statutory law - the body of law enacted by legislative bodies. (p. 72)

Statutory rape - a strict liability crime in which an adult engages in a sexual act with a minor.

(p. 83)

Strict liability crimes - certain crimes, such as traffic violations, in which the defendant is guilty

regardless of his or her state of mind at the time of the act. (p. 83)

Substantial-capacity test (ALI/MPC test) - from the Model Penal Code, a test for the insanity

defense that states that a person is not responsible for criminal behavior if when committing the

act “as a result of mental disease or defect he [or she] lacks substantial capacity either to

appreciate the wrongfulness of his [or her] conduct or to conform his [or her] conduct to the

requirements of the law.” (p. 88)

Substantive criminal law - law that defines the rights and duties of individuals with respect to

each other. (p. 94)

Substantive due process - the constitutional requirement that laws used in accusing and

convicting persons of crimes must be fair. (p. 96)

Supremacy clause - a clause in the U.S. Constitution establishing that federal law is the

“supreme law of the land” and shall prevail when in conflict with state constitutions or statutes.

(p. 72)

Voluntary manslaughter - a homicide in which the intent to kill was present in the mind of

the offender, but malice was lacking. Most commonly used to describe homicides in which the

offender was provoked or otherwise acted in the heat of passion. (p. 82)

Assignments

1. Ask students to research how felonies are graded in your state. If felonies are designated in degrees, what are the sentences associated with each degree? Likewise, how is murder classified in your state? If murder is designated in degrees, what factors determine whether a homicide is murder in the first, second, or third degree? (LO 3)

2. Research the differences between civil and criminal law. Research the O.J. Simpson case and explain the outcomes of the civil and criminal trials. Explain why the outcome of civil cases can be very different than the outcome of criminal trials even though they are about the same crime. You should include a discussion of the differences between civil and criminal trials, the burden of proof, guilt versus responsibility, etc. (LO 3)

3. Explain the concept of self-defense. Provide some examples of self-defense. Following, research the case of George Zimmerman. Do you agree that Zimmerman acted in self-defense? If so, explain why his actions met the requirements for self-defense. If you disagree, explain why his actions did not meet the requirements of self-defense. (LO 7)

4. Research the case of Tyler Clementi and read the article http://www.nytimes.com/2010/10/03/weekinreview/03schwartz.html. Prepare a discussion paper about this case. Imagine you were the prosecutor and you are planning to hold the bullies responsible. What would you charge them with and what punishment would you ask for? (LO 2-4)

5. Research the requirements of an insanity defense. Following, research how many defendants use the insanity defense each year and how many are successful. Prepare a short class presentation and two discussion questions for the class. (LO 6)

6. Assume for the sake of this exercise the following facts: The legislature debates and passes a law that requires all fast food restaurants to cease selling soft drinks and French fries in the United States, due to the negative impact on children’s health. Assume that the “negative impact” is scientifically proven, and assume that procedural due process rights to a hearing, etc, have been complied with. Is there a reasonable or rational basis for this law? Is eating French fries and drinking soda such basic freedoms that, although not explicitly protected in the constitution, is nonetheless protected by it? Have students openly debate this example and substantive due process rights in class. (LO 8)

Answers To Critical Thinking Questions In The Text

1. Give an example of a criminal law whose main purpose seems to be teaching societal boundaries rather than protecting citizens from harm. By searching the Internet, can you find examples of other countries where this behavior is not considered criminal? How is the behavior perceived in those countries?

ANS: An example would be the private use of marijuana. There is nothing “natural” about drug laws. Whereas alcohol is legal, marijuana is illegal – despite the fact that alcohol has been consistently linked to violence. Drunk drivers are also dangerous on the road. In other countries, such as the Netherlands, marijuana use is permitted. There are even differences within the United States; that is, some states like Colorado and Washington allow marijuana use, whereas other states only allow medical marijuana, and some states prohibit marijuana use per se.

2. Why is murder considered a mala in se crime?

ANS: Murder is considered “naturally wrong.” Murder is considered wrong across countries.

3. Nine-year-old Savannah lies to her grandmother Jessica about eating candy bars. As punishment, Jessica forces Savannah to run for three hours without a rest. Severely dehydrated, the girl has a seizure and dies. What should be the criminal charge against Jessica, and why?

ANS: Involuntary manslaughter: Jessica had no intent to kill Savannah, but she was careless in her actions.

4. Keith lends his car to Jermaine, who drives with two other friends to the home of a drug dealer, intending to steal a safe full of cash. The drug dealer is unexpectedly at home, however, and in a struggle Jermaine winds up murdering him. What rule allows local prosecutors to charge Keith with first degree murder? Why?

ANS: If Keith knew that the car was used for a crime then he can be charged with first

degree murder because he was an accomplice. He aided Jermaine in his criminal act.

Requirements:

1. The intent to aid the person who committed the crime

2. The intent that such aid would lead to the commission of the crime.

5. Suppose that Louisiana’s legislature passes a law allowing law enforcement officers to forcibly remove residents from their homes in the face of an imminent hurricane. Why might a court uphold this law even though, in most circumstances, such forcible removal would violate the residents’ due process rights? If you were a judge, would you uphold Louisiana’s new law?

ANS: I would uphold the law. Substantive due process requires that the law must be fair. In this case the law is supposed to prevent harm to citizens. Thus, even though people cannot usually be forcibly removed, the law is not a violation of due process rights because it is meant to save lives. For instance, people may risk the life of their children or other defendants by not evacuating. They could also risk the life of emergency personnel if they don’t evacuate on time, because the emergency personnel could be in danger later by trying to rescue them.

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