homeword
asf1533
CRIM100Lecture4Summer20202.pptxCRIM 100 – Lecture 4
Criminal Law & the Courts
Please Note…
Warning: slides and hyperlinks include graphic, and sometimes disturbing images & content
Slides are for CRIM 100 internal use ONLY and may not be replicated, distributed or published by any means and are expressly for educational purposes by students officially registered in this course.
First things first…
Before we discuss Criminal Law and the Courts, it is important to present a brief history of criminology, so you understand how we make decisions today
A Brief History of Criminology
How does one understand the causes of crime?
4
Cause
Crime
Is it nature or is it nurture? In other words, is crime the result of genetics and biology, or the result of our upbringing and socialization?
5
Theories
All nine points above have the potential to explain the causes of crime. You will learn more about these theories in other courses you take in Criminology, such as Criminology 105: Psychological Explanations of Criminal and Deviant Behavior and Criminology 104: Sociological Explanations of Criminals and Deviant Behaviour.
For now, simply keep these in mind as we continue with this lecture.
6
Biology
Psychosis
Personality disorders
Social learning
Culture
Frustration
Moral development
Socialization
Trauma
Understanding the History of Crime and Punishment
Demonic Perspective (1200-1600)
”Demonology is one of the earliest theories in criminology. In ancient times, people believed that evil spirits or demons entered the human soul and made people commit sins. This was the earliest explanation given regarding crime and criminal behavior. Terms like demons, witches and windigo were used for people who had turned criminals under demonic influence. Society believed that this was the result of evil spirits. Supernatural powers were considered the best explanation behind crime and sin. It was believed that a person did not commit crimes of his own free will but because he was under the influence of evil” (Pratap, 2019; para 3).
9
People who violated social norms of religious practices were believed to be witches or possessed by demons
The prescribed method for dealing with the possessed was to burn them at the stake
Crime and punishment in Medieval England:
https://www.youtube.com/watch?v=3usxel3lK04
“The Classical School of Criminology emerged in response to the harsh, retributive nature of punishment inflicted on criminals in Europe into the eighteenth century.” (Siegel and McCormick, 2016 p: 99)
10
Classical School of Criminology (late 1700s and early 1800s)
A perspective premised on the belief that potential criminals, being rational beings capable of free will, will be deterred by the threat of swift, severe punishment.
“Emerged in response to the harsh, retributive nature of punishments in the 18th century. During the Enlightenment, the Renaissance brought the spread of more rational, scientific, and humanistic ways of thinking. By the 18th century, traditional doctrines of absolute obedience to authority were increasingly challenged, as were the prevailing concepts of justice” (Winterdyk, 2020 p: 99-100).
Beccaria embraced this concept, arguing that most potential offenders would be deterred if three basic conditions were met:
Certainty of punishment
Swiftness of justice
Fair penalties proportionate to the severity of the social harm done
11
A call for a more rational, utilitarian approach to crime
Operated under 5 basic principles:
1. Rationality
2. Hedonism
Beccaria and Bentham
3. Punishment
4. Human rights
5. Due process
https://www.youtube.com/watch?v=6b0L2tdRF1o
A school of criminological thought whose adherents use the scientific method to measure behaviour and advocate rehabilitation over punishment.
Embraced by Lombroso, the “father” of modern criminology, and his contemporaries Garofalo & Ferri. “The Italian positivists attempted to shift the focus away from the themes of free will and rational choice to focus on the individual biological and mental traits that may predispose people to crime.” (Winterdyk, 2020: 105).
12
Positivist Criminology
Scientific method to understanding crime (i.e. facts, proof)
There are mind and body differences in people
Behavior is a product of social, biological, psychological, and economic forces
Ceasare Lombrosso (1835-1909)
Biological determinism: a doctrine that denies free will while maintaining that our decisions are decided by predictable and/or inherited causes that act on our character.
Atavism: a biological condition supposedly rendering an individual incapable of living within the norms of a society; they were viewed as evolutionary throwbacks.
Lombroso believed that the cause of atavism was hereditary.
Source: Winterdyk 2020
14
Atavism and defective genes
Mental and physical inferiority
Inability to learn and follow legal rules
Criminal behavior
Lombroso Continued…
“Lombroso’s ideas regarding criminality were influenced by Charles Darwin’s theory of biological evolution. He used the term atavistic to characterize those who, due to some morphological (bodily) characteristics, were considered throwbacks to some earlier period in human evolution. The idea that some physical anomalies can indirectly contribute to criminal behaviour reflects Lombroso’s recognition that environment can play a role in an individual’s development. Although Lombroso found correlations between physical appearance and criminal activity, he did not consider the possible effects that social labeling might have in triggering anti-social behaviour among those “labelled” as different or even evil.” (Winterdyk, 2020:104).
15
Physiognomy- the belief that fixed aspects of physical appearance are indicative of the qualities of a person
Concluded that the criminal was distinguished by certain physical anomalies – flattened nose, large ears, big lips, mongolian eyes, big jaws, etc.
William Sheldon (1893-1977)
The Foundation of Biological Determinism
Biological determinism: the idea that individual physical and mental characteristics are governed solely by heredity.
Somatotyping: the practice of attempting to draw connections between a person’s behaviour or temperament and the individual’s body type or physique.
Body Types and Criminal Behaviour
William Herbert Sheldon tried to associate body type with temperament and described three types:
(a) Endomorphic: heavy-set, soft in appearance; smooth, soft skin; small bones. (b) Viscerotonic: extroverted, easy-going, fond of the “good life.”
(a) Mesomorphic: predominantly muscular, strong-boned, lean. (b) Somotonic: Assertive; quite active.
(a) Ectomorphic: thin, pale, delicate; small bones, fine hair, sharp noses. (b) Cerebrotonic: introverted complainers; troubled by insomnia and chronic fatigue.
Source (Winterdyk, 2020:130).
16
Endomorph
Endmorph = viscerotonic temperament (wider hips, narrower shoulder, round and extravert)
Ectomorph
Ectomorph = cerebrotonic temperament (narrow shoulders, narrow hips and frail, introverts, value their privacy)
Mesomorph
Mesomorph = somatotonic temperament (Broad shoulders, narrow hips, strong and firm, muscular, fit, risk taking and aggressive, extraverted)
Criminology Today
20
Theories still exist but in different forms
(Neo)classical and (neo)positivist principles are still dominant, and their influence is reflected in many criminological theories
Criminology has moved from being reactive to being proactive in its approach to crime
Biological and mental traits interact with environment
Criminological ideas are subject to change.
What may be “true” today may not be true in the future
Criminal Law and the Courts
D.Ristic
In addition to the pages in your coursepack, please read the additional chapter posted under “Course Material.”
22
The Origins of Law
The criminal law controls the definition and understanding of crime. Criminal law developed over several generations and incorporates historical traditions, social values, moral beliefs, and is heavily influenced by political and economic developments. The criminal law is constantly changing to reflect the state and attitudes of society. The criminal law governs all interactions. Crimes are viewed as personal wrongs and compensation was offered to victims. An important concept in law is called Stare Decisis – “the principle that the courts are bound to follow the law established in previously decided cases (precedent) unless the law was overruled by a higher authority.” (Siegel and McCormick, 2016 p:31)
23
The Common Law
Common law refers to “early English law that was developed by judges and incorporated Anglo-Saxon tribal custom, feudal rule and practices, and the everyday rules of behavior of local villages. Common law became the standardized law of the land in England, and eventually formed the basis of criminal law in Canada” (Siegel and McCormick, 2016 p:31).
24
The Development of Law in Canada
25
Classification of Law
Law can be divided into two broad categories: civil and criminal
Civil law is made up of property law (the law governing transfer and ownership of property) and contract law (the law of personal agreement).
Tort law is similar to criminal law in that it involves the law of personal wrongs and damages This can be physical or mental harm, and individuals can still proceed to sue even if acquitted criminally because the standards of evidence are lower in civil case.
Beyond a reasonable doubt versus a balance of probabilities:
Beyond a Reasonable Doubt. The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.
Balance of probabilities refers to burden of proof in civil trials. It is also known as preponderance of evidence. The common distinction is made with the burden of proof in a criminal trial, which is beyond a reasonable doubt. In a civil trial, one party's case need only be more probable than the other.
(Siegel and McCormick, 2016).
26
Principles of Criminal Law
27
Classification of Law
“Criminal laws can be classified as either indictable offences or offences punishable on summary conviction. An indictable offence is a serious offence, such as murder (section 231), whereas a summary offence, such as loitering (section 179 on vagrancy), is a minor or petty crime. The main differences involve procedure and penalty.
Mala in Se – crimes are rooted in the core values inherent in our culture and are designed to control such behaviours as inflicting physical harm on others. These crimes are deemed universal.
Male Prohibitum – crimes defined by current public opinion and social values, subject to change.”
(Siegel and McCormick, 2016:37).
28
The Legal Definition of a Crime
Actus Reus – An illegal act, such as taking money or shooting someone; also failure to act, such as not taking proper precautions while driving a car.
Mens Rea – The intent to commit the criminal act, need for most offences expect strict liability.
Intent – Carrying out an act intentionally, knowingly, and willingly.
(Siegel and McCormick, 2016:39)
29
Functions of the Criminal Law
The following text is from Siegel and McCormick, 2016 p: 37-39).
The criminal law is a written code defining crime and punishment, centralized under the jurisdiction of the federal government, which enable greater social control and perhaps higher respect for authority. From the consensus viewpoint, the law reflects the interests of the majority, whereas the conflict model sees the law reflecting the interests of the powerful
Providing social control – the first and foremost principle is to control people’s behavior. This is for officially recognized behavior that is prohibited by law and the power is given to political parties and enforced by its agents.
Discouraging revenge – to prevent the greater evil of private retribution. The criminal law controls an individuals need to seek revenge. If people took the law into their own hands, the risk would be arbitrary and excessive.
Expressing public opinion and morality – the third function of the law is to reflect constantly changing public opinion and moral values. This ties into our earlier discussion about crimes that are male in se and male prohibita (for example, murder and rape versus possession of marijuana or gambling violations
Deterring criminal behavior – the ability to deter potential law violators. Again, this is based on the idea that if people see or know what the punishment will be for a crime they commit, they will be less likely to commit it. This was the rationale behind executions in public places during the Middle Ages. Although we do not have public executions today, long prison sentences perform the function of general deterrence. This of course is based on the idea that people act rationally, and that they weight the costs and benefits of committing crimes beforehand. It would not then apply, to say, crimes of passion or a crime that is the result of impulsive behavior. Discuss general versus specific deterrence.
Maintaining the social order -
30
“The Charter of Rights and Freedoms is the ultimate arbiter of law and legal rights in Canada. The Charter is included in the Constitution Act, which was repatriated from Britain in 1982” (Siegel and McCormick, 2016 p:45).
31
The Canadian Charter of Rights and Freedoms
The Trial of Jian Ghomeshi
Read the Globe and Mail article on the Ghomeshi case, and then watch the video with his lawyer, Marie Henein (next slide).
33
Was Justice Served???
Now that you’ve read the article and watched the video, please answer the following questions:
In your mind, was justice served?
Explain what is meant by the presumption of innocence.
Explain what is meant by the burden of proof.
34
Thank you! Amy Prevost
