criminal justice 103 Intro to Law & Justice
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Crime and Criminal Law
Chapter 5
Crime and Criminal Law
• Criminal law (substantive law) – Law of crimes
• Defined by statute – Prescriptions – Proscriptions
• Code of conduct all are expected to follow – Enforced by state
• Primary purpose is protecting public from harm by punishing harmful acts that have occurred and forbidding conduct that may lead to it
What is Crime?
• Tappan (1947) – “…an intentional act in violation of the criminal law committed without defense or excuse, and penalized by the state”
1. An act in violation of 2. A criminal law for which 3. A punishment is prescribed 4. The person committing this action must have
intended to do so 5. And to have done so without any legally
acceptable defenses or justifications
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Crime as a Subset of Harmful Acts
Core offenses
All crimes
All social harm
All harms
Sources of Criminal Law
• State and federal constitutions
• State and federal statutes – New crimes added as circumstances warrant
• Common law – Codified in most states by mid‐1800s
• Federal law is growing source of criminal law
• Statutes define elements (various parts) of a crime more specifically than common law
Limitations on Criminal Law
• State cannot criminalize any conduct it chooses
• Substantive due process – There are limits to what conduct the law may seek to prohibit
• Forbids passage of laws that infringe on rights of individuals
– Free speech
– Assembly
• Is underlying theory for privacy rights
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Limitations on Criminal Law
• Overbreadth doctrine – Laws unconstitutional when they fail to narrowly define specific behavior to be restricted
• Void for vagueness – Laws unconstitutional when they fail to clearly define prohibited act and punishment in advance
• Fair notice – Letting people know what is and is not permitted
Limitations on Criminal Law
• Must not restrict due process – Must be enforced fairly and non‐arbitrarily
• Must not restrict equal protection – Laws cannot restrict rights of members of suspect classifications
• Cruel and unusual punishment – Punishments must be proportional to the crime – Jurisdictions not required to punish in same manner
Limitations on Criminal Law
• Ex post facto laws – Cannot be penalized for behavior that was not illegal at time they acted
– Penalties cannot be increased after crime has been committed
– Do apply retroactively if they are beneficial
• Bills of attainder – Cannot have laws that impose punishment without trial
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Elements of Criminal Offenses
• Elements that must be present for criminal liability to attach:
– Actus reus
– Mens rea
– Concurrence
– Causation
– Harm
• All make up corpus delecti
Actus Reus (Criminal Act)
• The guilty act
• Three forms – Voluntarily bodily movements
– An omission in the face of a duty to act • Failure to perform legal duty
• Failure to prevent harm when special relationship exists
– Possession • If person has some knowledge that his or her possession is illegal
Mens Rea (Criminal Intent)
• Guilty mind
• Inferred from circumstances surrounding criminal act
• Motive and intent not same thing – Intent
• Mental purpose or desire to commit certain act
– Motive • Refers to cause or reason why act was committed
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Mens Rea (Criminal Intent)
• Model penal code sets forth four levels: – Purposeful
– Knowing
– Reckless
– Negligent
• Doctrine of transferred intent
Concurrence
• Union of criminal act and criminal intent
• Intent must set act in motion – Those not generated by intent do not constitute criminal conduct
Causation
• Criminal act is the act that is the cause of the harm
• Two types: – Factual cause
• “But for” actor’s conduct, harm would not have occurred
– Legal cause • Also known as proximate cause
• Consequences of act not reasonably foreseeable to actor (intervening causes) relieve actor of some degree of criminal liability
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Harm
• The result of the act – Injury to another or to society
• There can be no liability without harm
• Occurs in all crimes – Can be focused on harm only to actor
• May be physical or mental
Liability Without Fault
• Strict liability – Imposes accountability without proof of criminal intent in situation where society deems it fair to do so
– Statutory rape
• Vicarious liability – Imputation of accountability from one person to another
– Based on relationship of individual to person committing illegal act
– Only in civil law
Inchoate Crimes
• Crimes that occur in preparation for an offense
• Basically incomplete crimes • Inchoate
– “To begin” or “to partially put into operation”
• Three types – Attempt – Solicitation – Conspiracy
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Parties to Crime
• Doctrine of complicity – More than one person may be held liable for criminal activity
• Requires all criminal elements be present • Common law recognizes four parties:
– Principles in the first degree – Principles in the second degree – Accessories before the fact – Accessories after the fact
Defenses to Criminal Liability
• Defense – Response made by defendant that allows them to avoid criminal liability
• Alibi – Form of defense where defendant asserts they are not the person who committed the act charged
• Affirmative defenses – Defendant admits they committed the act but denies criminal liability
• When defense is used burden of production shifts to defense (preponderance of evidence)
Justification Defenses
• Ones in which defendant admits they are responsible for act but claims that under the circumstances, the act was not criminal
• Three types: – Self‐defense
– Consent
– Execution of public duties
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Justification Defenses: Self‐Defense
• Use of force to repel imminent, unprovoked attack in which person reasonably believed he or she was about to be seriously injured
• May only use as much force as is necessary • Retreat doctrine
– Person must retreat rather than use deadly force if doing so is possible
• Castle doctrine – Persons attacked in their home need not retreat
• Can also apply to defense of others and property
Justification Defenses: Consent and Execution of Public Duties
• Consent – Persons may consent to suffer what otherwise would be an objectionable injury
– Must be voluntary, knowing, and intelligent
• Execution of public duties – Agents of state permitted to use reasonable force in the lawful execution of their duties
– Tennessee v. Garner (1984)
Excuse Defenses
• Ones in which defendant admits what he or she did was wrong but claims that under circumstances he or she is not responsible for improper conduct
• Four types: – Duress – Intoxication – Age – Insanity
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Excuse Defenses: Duress
• Situations involving threat of serious, imminent harm to oneself, where act is less serious than threatened harm
• Those forced to commit crime in such circumstances do not act voluntarily
– Eliminates actus reus
– Eliminates mens rea
Excuse Defenses: Intoxication and Age
• Intoxication – Voluntary
• Never leads to acquittal • May only mitigate
– Involuntary • May work as defense as person is not responsible for their actions
• Age – Persons below certain age lack capability to form mens rea
– Various jurisdictions define age parameters
Excuse Defenses: Insanity
• Legal term to describe mental illness • Mental illness and legal insanity are not same thing
• Impairs mens rea • Probably most controversial of all defenses • Rex v. Hadfield (1800)
– First successful case using defense
• Rex v. M’Naghten (1843) – Cemented modern insanity defense
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Excuse Defenses: Tests for Insanity
• M’Naghten rule‐right‐wrong test
• Durham rule‐product test
• Irresistible impulse test
• Substantial capacity test
• GBMI
Procedural Defenses: Entrapment
• One of number of procedural defenses • Increasingly being raised by those caught in drug stings and Internet sexual enticement stings
• Sherman v. U.S. (1958) – Court laid out two scenarios in which it occurs:
• Crime is result of creative activity of law enforcement • Prosecutor cannot prove beyond reasonable doubt that defendant was “independently predisposed” to commit the crime
Categories of Crime
• Crimes against the person
• Crimes against property
• Crimes against public order and morality
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Categories of Crime: Crimes Against the Person
• Include: – Murder
– Forcible rape
– Aggravated assault
– Robbery
Murder
• FBI definition – Murder is willful (non‐negligent) killing of one human being by another
• Common law definition – The killing of another with malice aforethought
• Model Penal Code – Distinguishes between lawful and unlawful killings – Unlawful killings are criminal homicides
• Three forms
Murder
• Today, murder defined by Model Penal Code as a killing that occurs: – Purposefully – Knowingly, or – Recklessly
• Murder graded into – First degree – Second degree
• States and courts differ on how to consider first degree murders
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Manslaughter
• Voluntary – An intentional killing that occurs:
• Under mistaken belief self‐defense is needed • Or in response to adequate provocation while in sudden heat of passion – Existence of adequate provocation does not eliminate criminal liability, only reduces charge and associate punishment
• Involuntary – Unintentional killing that occurs as result of reckless act
Negligent Homicide
• Unintentional killing in which defendant should have known they were creating substantial risk of death by their conduct
• Such conduct deviated from ordinary level of care owed to others
Felony Murder Rule
• Ranked as first degree murder in some states – Second degree in others
• Individual is held liable for unintended killing that occurs during the commission of a dangerous felony
• No requirement of intent to either kill or inflict serious harm
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Forcible Rape
• FBI definition – “Carnal knowledge of a female forcibly and against her will”
• Common law definition – “Carnal knowledge by a man of a woman who is not his wife, forcibly and without consent”
• Definitions created several loopholes • Modern day statutes have among other things:
– Removed gender specific language – Adopted marital rape exceptions
• Child sexual assault
Aggravated Assault
• FBI definition – “unlawful attack by one person upon another for purpose of inflicting severe or aggravated bodily injury”
• Involves use of weapons • Common law definition
– Assault: attempt or threat to inflict immediate harm – Battery: unjustified, offensive physical contact
• Modern statutes have merged assault with battery to fall under same name
Robbery
• FBI definition – Taking or attempted taking of anything of value from care, custody, and control of person or persons by force or threat of force or violence and/or putting victim in fear
• Often classified as violent crime
• Extortion – Taking of property accomplished by threat of future harm to person, property, or reputation
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Categories of Crime: Crimes Against Property
• Include: – Arson
– Burglary
– Larceny/Theft
Arson
• FBI definition – Any willful or malicious burning or attempting to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc
• First degree – Burning of an occupied structure
• Second degree – Burning of an unoccupied structure
• Third degree – Burning of personal property
• There must exist an intent to burn
Burglary
• FBI definition – Unlawful entry of structure to commit felony or theft
• Seventeenth century – Breaking and entering of dwelling of another at night with intention of committing felony inside dwelling
• Today burglary can occur during the day • Not entry alone
– Must be unlawful entry accompanied by intent to commit another crime inside
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Larceny/Theft
• FBI definition – Unlawful taking, leading, or riding away from the possession or constructive possession of another
• Graded depending on method of taking and the value of property taken – Grand theft versus petty theft (felony and misdemeanor)
• Crimes against property (theft) more common than crimes against person
Categories of Crime: Crimes Against Public Order
• Those in which injury is to the peace and order of society – Disorderly conduct – Unlawful assembly – Vagrancy
Categories of Crime: Crimes Against Morality
• Those in which the moral health of society is injured – Adultery – Prostitution – Obscenity