Discussion 2
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Lecture3.Justiceandthelaw1.pptx
CHAPTER 3: JUSTICE AND THE LAW
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These are the slides for Chapter 3. The slides provide a brief overview of the chapter. Please be sure to read the corresponding chapter in our Rennison and Dodge (2021) text.
Chapter Summary
This chapter provides a broad overview of criminal justice and the law. It traces the history of laws through the ages and differentiates between types of laws as well as types of crimes. Finally, it discusses defenses available to the accused and the vital role of the victim in the American criminal justice system.
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The Development of Law
“Equal justice under the law.”
Inscribed on the front of the U.S. Supreme Court in Washington, D.C.
Laws change according to:
Societal norms.
Cultural shifts.
Technology.
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
Equality and justice are the driving concepts behind the U.S. criminal justice system, but in reality, these goals are often not met.
As we discussed in previous lectures, we know that laws are constantly changing depending on context. Laws can change according to societal norms (e.g., past definitions of rape), cultural shifts (e.g., decriminalization of marijuana), and technology (e.g., cybercrime, which wasn’t a law until technological development).
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History of Law
Codes of conduct
E.g., Code of Hammurabi.
A New Age of Reason
Age of Enlightenment: New ways of thinking and reforms
Before the French Revolution in the late 18th century.
Trial by ordeal: Primitive trial in which God was expected to protect the innocent.
https://www.youtube.com/watch?v=tEI8SnEA7B8
Abolished in the Age of Enlightenment.
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
Early examples of codes of conduct:
Code of Hammurabi: The oldest known legal code, it established approximately 300 provisions for family, trade, real property, personal property, and labor
Bible, Mosaic Code of the Israelites, Roman Twelve Tables
Early forms of trial and punishment were often harsh and sometimes bizarre
Trial by ordeal: Primitive form of trial in which the outcome rested in the hands of God to determine guilt or innocence by protecting an innocent person from some or all the consequences of the test.
To learn more about trial by ordeal: https://www.youtube.com/watch?v=tEI8SnEA7B8
However, during the Age of Enlightenment, scholars began to think of human behavior differently. They no longer viewed human behavior (and notably, criminal behavior) as rooted in witchcraft. Instead, they began to recognize that people have free will, logic, and are rational beings.
Age of Enlightenment: Brought about new ways of thinking, including reforms arising from outrage against the barbaric system of law and punishment just before the French Revolution in the late 18th century
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History of Law
Cesare Beccaria:
“The Classical School.”
On Crime and Punishment (1764).
Emphasized rationalism, intellectualism, and humanitarianism.
Believed free will, logic, and rationality were central in decisions to commit crime.
Promoted the idea of deterrence.
PUNISHMENT should be…
Swift: aka“celerity”. Punishment should follow the criminal act immediately
Time in between punishments can’t be long
Certain: you will get punished
Proportional: the punishment should fit the crime
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
In 1964, Cesare Beccaria develops the foundation for what we now recognize as the “The Classical School of Thought”.
In his seminal piece, On Crime and Punishment, he described how human beings are rational people. In all of their thought processes, people were acting on free will, logic, and rationality. These thought processes can apply to all behavior, including criminal behavior.
So, offenders were believed to engage in crime because to them, the benefits of crime outweighed the punishment.
Beccaria’s work on crime and punishment was seen as a humanitarian approach to apprehend offenders. In the past, he disliked the notion of trial by ordeal (e.g., burning offenders or drowning them to see if they would float). Instead of using trial by ordeal, Beccaria proposed that punishment should be swift, certain, and proportional to the crime.
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History of Law
DETERRENCE
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Specific Deterrence
General Deterrence
FEAR!
PUNISH!
Punishment > Benefits of crime
3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
Deterrence is the basic assumption of the legal system. There are two types of deterrence. Your textbook describes these two in more detail but I wanted to provide a visual representation.
On one side, you have specific deterrence. Specific deterrence targets an individual offender and the goal is to stop bad behavior for that individual. This may be, for example, trying to reduce the likelihood that a former offender will re-offend. So how do we do that? Through several means such as instill fear of punishment and actual punishment.
On the other side, you have general deterrence. General deterrence is aimed at the mass public. In general deterrence, the overall goal is to instill the THREAT of punishment to scare the public into consensus and conformity. This is to reduce or inhibit criminal behavior in all members of society.
Essentially, the foundation of deterrence is to have the punishment outweigh the benefits of the crime. When this occurs, it is argued to make people think before engaging in crime.
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Specific Deterrence
Directed toward the individual offender to stop bad behavior. It may be accomplished through restitution or incapacitation.
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
Here is another way to look at it.
Specific deterrence: The notion that punishment serves to deter the individual being punished from committing crime in the future. In order to be effective, Beccaria believed punishment must be swift, certain, and proportional.
One example would be if an offender is let back out into society, but rather than learning his lesson, we continues to sell drugs on the street. In this case, the second stint in prison is supposed to serve as a specific deterrence to reduce the likelihood of the individual offending once again.
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General Deterrence
Perceived negative consequences of being caught and thus, the threat of punishment will inhibit criminal behavior in all members of society.
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
And here is general deterrence, in more detail.
General deterrence: The notion that the general populace will be deterred from committing crimes based on the perceived negative consequences of being caught.
One example of this would be a speeding ticket. We are all familiar with the consequences of speeding. We know that if we hit above a certain speed limit, we have to pay a minimum amount of dollars, if we are caught.
So, what do most of us do? We abide by the speeding limits to avoid that speeding ticket. Some of us may drive faster than the limit, but once we see a police officer, we tend to hit the brakes because the likelihood of getting caught has substantially increased.
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Bentham and Rational Choice Theory
Jeremy Bentham
Stressed rationality in the legal system and opposed brutal methods of punishment.
Hedonistic calculus: people weigh the costs and benefits of their actions in order to maximize pleasure and minimize pain.
Utilitarianism: greatest good for the greatest number.
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
By extension, Bentham extends the idea of the Classical School of Thought to introduce Rational Choice Theory. Bentham opposed brutal and primitive punishment. He then develops the Felicitous or hedonistic calculus.
Felicitous or hedonistic calculus: A measure indicating how much pleasure an individual gains from a specific act
Utilitarianism: A doctrine stating that an action is morally right as long as the behavior is a benefit for the majority of a society. This is the concept of the “greatest good for the greatest number.”
He believed in a utilitarianism perspective such that laws and punishment need to be set in place to yield the greatest good (or cohesion) for the greatest number of people.
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What Drives Crime?
Pros
Cons
If pros are the causes of crime, to prevent crime there needs to be an increase in cons (or the cost of crime)
Here is another way to visually see what Bentham argues.
The hedonistic calculus can be thought of as a teeter totter.
If pros are the causes of the crime, to prevent crime there needs to be an increase in cons (or the cost of crime).
Once the cons of committing that crime outweighs the pros, that is likely to result in deterrence. So, in other words, the offender decides it is not worth the effort, time or risk to engage in criminal behavior.
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Bentham and Rational Choice Theory
Jeremy Bentham
Panopticon prison design: served as blueprint for current incarceration facilities.
Self-regulate
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3.1 Summarize the historical development of the law and explain the reforms introduced by the Classical School.
Bentham also developed the panopticon prison design, which is still used in several facilities. If you have ever been able to go on a prison tour, this design may look familiar. In the middle is the tower where prison officials would oversee the individual prison cells. The point was to make inmates feel as though they are being watched at all times. As a result of the constant supervision, inmates were expected to self-regulate their own behavior for fear of punishment. ß
Panopticon: An architectural design developed by Jeremy Bentham that allows a single person to watch others in a prison setting without those incarcerated knowing they are being watched
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Role and Purpose of Law – The Rule of Law
The Rule of Law
Rule of Law: mandates the application of known legal principles in governmental decision-making and establishes the premise that every citizen should obey laws.
World Justice Project
5 basic principles to ensure citizens and governments abide by the laws
Federalism: refers to how power and authority is DIVIDED to ensure federal, state, and local municipalities can function as one nation with shared responsibilities.
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3.2 Identify the basic principles and goals associated with the rule of law.
Rule of law: A fundamental principle in the criminal justice system in the United States according to which all government officers: including those in the criminal justice system: pledge to uphold the Constitution and to follow the Constitution, not any particular human leader
In addition, we have the Word Justice Project that is discussed in greater detail in your textbook. Specifically,
World Justice Project identifies four principles associated with the rule of law:
Members of government are accountable under the law
Laws must be clear, publicized, stable, and fair, and they must protect fundamental rights
Laws are enacted, administered, and enforced in a fair and efficient manner
Access to justice is denied to no one
So how should these laws be applied and enforced? Well, there are 5 basic principles to ensure that citizens and governments abide by the laws.
Laws should be prospective, not retroactive: meaning that laws need to prevent crime, not be developed in response to crime.
Laws should remain stable: this is to ensure stability and education of the law. If laws are changing every year, how are citizens expected to understand their consequences?
Rules and procedures for making the law should be well-defined: laws need to be clear with clear parameters for behavior.
The judiciary must remain above external influences and politics: laws need to be objective from political influences.
Discretion in the system must be used fairly: this is important. Discretion essentially refers to the individual decisions that governmental authorities can use when applying/enforcing the law. Discretion is necessary to maintain the criminal justice system; however, it must be applied fairly. For example, let’s say you were pulled over for speeding. You were driving 20 miles above the speed limit. However, when you were pulled over, you explained to the officer that you were on your way to the hospital for an emergency. The officer takes this into consideration and let’s you go on account of your emergency. This would be an example of police discretion. You were technically supposed to get a speeding ticket, but due to the circumstances and the police officer’s decision, you were let go free of a speeding ticket.
To ensure that there are checks and balances between all forms of government, we have in place a federalism system.
Federalism: Refers to the relationships between the highest level of government and the lowest on how power and authority are divided to ensure federal, state, and local municipalities can function as one nation with shared responsibilities.
Tenth Amendment: 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.
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Role and Purpose of Law – 5 Goals
5 Goals of the Law
Deterrence: law is created to deter people from committing crimes using the threat of punishment.
Retribution: offenders deserve to be punished for criminal behavior.
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3.2 Identify the basic principles and goals associated with the rule of law.
There are 5 roles and purposes of the laws. These are not mutually exclusive goals; however, it is important to understand the differences between these distinct goals.
Specific and general deterrence: Law is created to deter people from committing crimes using the THREAT of punishment.
Retribution: A goal of law that states that punishment is deserved or morally right. In addition, it is a goal of sentencing that seeks to punish the offender for criminal behavior.
Lex talionis: Latin for “the law of retribution” and commonly referred to as “an eye for an eye.” This philosophy calls for retaliation in which the punishment received should fit the crime committed.
Restitution: Repayment as part of a punishment for injury or loss.
Rehabilitation: Sentencing goal that seeks to reduce chances of future offenders through education, alcohol or drug programs, psychological programs, and other treatments.
Incapacitation: Sentencing goal that isolates the offender from the public and takes away their ability to commit a crime against those in the public.
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Role and Purpose of Law – 5 Goals
5 Goals of the Law
Restitution: repayment as part of a punishment for injury or loss.
Rehabilitation: means of providing education and treatment for offenders.
Incapacitation: isolates the offender from the public to protect the public.
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3.2 Identify the basic principles and goals associated with the rule of law.
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Sources of Criminal Law
Common Law
Developed by case law from court decisions and opinions.
These court decisions are then applied to subsequent similar cases.
Example: Brown vs. Board of Education
If you would like to watch a short video summarizing the key points in Brown vs. Board of Education, please watch: https://www.youtube.com/watch?v=1siiQelPHbQ
Critical legal scholars argue that laws continue to be used by the rich and powerful to control behavior.
Example: William Chambliss, who studied rule of law as is applied to vagrancy.
Example 2: Crack vs. Cocaine punishments
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3.3 Compare the two main sources of criminal law: common law and constitutional law.
Let’s now dive into the sources of criminal law. In particular, we have common law and constitutional law. Let’s first focus on Common Law.
Common Law: A type of legal system originally developed in England whereby the courts define the law and determine how to apply the law. This is the body of law derived from judicial opinions.
The U.S. legal system is based on common law to inform how court decisions and opinions should be formed as we move forward in society. These common laws set precedents and in some cases, become landmark cases. For example, Brown vs. Board of Education is considered a landmark case because it overturned the prior ruling of Plessy v. Ferguson (1896).
In addition, some scholars who have studied the legal system contend that the rule of law serves the wealthy and powerful. For example, sociologist William Chambliss argued that the rule of law was dictated according the needs of the wealthy. He observed this phenomenon through the study of vagrancy laws. In particular, he found that vagrancy laws were primarily focused on citizens who were homeless, vagabonds, or rouges. Punishment for these individuals tend to be harsher than other types of laws which included whippings and sometimes the death penalty. Moreover, other legal scholars, such as Randall Kennedy, found a similar finding with respect to Black slaves. In times during white employer labor shortages, police officers would arrest unemployed Black individuals to develop pool so labor. To learn more, please refer back to Chapter 3’s reading.
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Sources of Criminal Law
Constitutional Law
Basis of all U.S. laws.
Establishes the fundamental rules and relationships between judiciary, legislative, and executive branches at state and federal level.
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3.3 Compare the two main sources of criminal law: common law and constitutional law.
The second sources of criminal law refers to Constitutional Law.
Constitutional Law: A major source of law that establishes the fundamental rules and relationships among the judicial, legislative, and executive branches at the state and federal levels.
Constitutional law primarily deals with:
Governmental power
Civil rights
Civil liberties
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Types of Law – Criminal law
Types of laws can be divided in 2 key areas:
1. Procedural law
2. Substantive law
What do they mean?
1. Procedural law: determines how people are treated in the system.
Bill of Rights: First 10 amendments to the U.S. Constitution.
2. Substantive law: designates what conduct is considered criminal.
Laws must be specific to let the accused know exactly what behavior is considered legally criminal
Remember, one of the goals of general deterrence is education of the punishment!
**Both procedural and substantive laws are written statutory laws that are adopted by legislatures.
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3.4 Explain the differences between the different types of law.
When we think of the types of laws that are available, we can divide them into 2 key areas. The first is procedural law, which determines how people are treated in the system. The Bill of Rights, for example, would fall under this procedural law category. This would include laws that govern arrests, warrants, search/seizure, and trial.
The second type of law is substantive law. Substantive law defines what constitutes first-degree homicide as opposed to manslaughter. These types of laws are designed to put people on notice of what types of conduct can be charged criminally.
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Types of Law – Criminal law
Criminal Law
Preemption doctrine: Federal law is the “supreme law of the land.”
Marijuana status: prohibited by federal law.
Gateway drug: a drug that leads to the use o more serious substances.
Cole memo: outlined state guidelines for marijuana use (especially use by minors, DUI, and trafficking).
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3.4 Explain the differences between the different types of law.
Next, let’s focus on what constitutes procedural criminal law.
The preemption doctrine is the idea put forth in the Constitution that federal law is the “supreme law of the land.” In other words, federal law usually overrides conflicting state laws.
What happens when there is conflict between the federal and state laws? One example is medical and recreational use of marijuana.
Marijuana status: some states have legalized or decriminalized it; federal law still prohibits it. Marijuana has been seen by many to be a gateway drug.
Gateway drug: A drug (e.g., pot) that leads to the use of more serious substances (e.g., heroin)
However, after August 2016, the Drug Enforcement Administration (DEA) determined in their final report that marijuana is no longer seen as a gateway drug. Although still illegal at the federal level, many states, as shown in Figure 3.1 in your textbook, have decriminalized possession and recreational use of marijuana.
The passage of the Cole Memo; however, outlined state guidelines for marijuana use.
Cole memo: Named after former deputy attorney general James Cole, it outlined guidelines for states related to marijuana, including use by minors, driving under the influence, and out-of-state trafficking
In 2018, Attorney General Jeff Sessions, appointed by President Donald Trump, announced his intent to rescind the Cole memo. In summer 2018, Trump announced his support for federal legislation that would protect states that legalized marijuana; he later reportedly changed positions and may still pursue the matter while in office.
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Types of Law – Criminal law
Statutes: Formal rules adopted by a governing body.
Example: tax evasion or price fixing. Can’t engage in either of these behaviors and there are known consequences if you were to avoid paying taxes.
Ordinances: Municipal and city rules.
Example: DUIs, zoning, dogs without leashes
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3.4 Explain the differences between the different types of law.
Next, let’s focus on these other types of criminal law, including statutes, ordinances, and case law. You may be familiar with some of the types of laws or have heard of them. Let’s take a closer look to what these terms actually mean in a criminal legal setting.
First, are statutes. Statues refer to formal rules, or law, adopted by a governing body such as a state legislature
Contain both procedural and substantive elements
Second, there are ordinances. Ordinances refer to rules and laws at the municipal or city level.
Examples include zoning laws (e.g., can’t have a pool or liquor store within certain area), disturbing the peace (e.g., noise level), dog leashes (e.g., dogs must be on leash in public areas or sidewalks).
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Types of Law – Criminal law
Case law: based on previous court decisions.
Precedent: Establishes prior case decisions as binding.
Stare decisis: Latin for “let the decision stand,” principle that requires judges to respect precedent.
Landmark cases: Cases that establish precedent which changes interpretation of a prior law.
Example: Dred Scott (1857) case, which found that people of African descent were neither U.S. citizens nor protected by the Constitution
Upheld until 1869 after the Fourteenth Amendment was passed to ensure equal protection under the law
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3.4 Explain the differences between the different types of law.
Third, there are case laws. Case law is based on previous court decisions or precedents
Precedent: The legal principle of stare decisis, Latin for “let the decision stand,” it establishes prior case decisions as binding precedent
Stare decisis: Latin for “let the decision stand,” meaning that judges must respect precedents set in previous court cases
Landmark cases: Establish precedent that markedly changes the interpretation of a prior law or establishes new case law (Ex: Miranda v. Arizona)
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Types of Law – Civil law
Civil Law
Concerned with formal laws imposed by the state rather than moral laws.
Addresses torts, estates, contracts, defamation, and property.
Example: Amber Heard vs. Johnny Depp trial
Burden of proof is preponderance of the evidence.
***Easier to determine in court vs. criminal court.
A lot of white-collar crimes are handled via civil court due to this lower burden of proof.
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3.4 Explain the differences between the different types of law.
We just covered criminal law, and now I want to focus on civil law. Very generally, civil laws are more concerned with formal laws imposed by the state, rather than moral laws. So, these laws do NOT cover homicide, robbery etc. In contrast, civil laws primarily deal with disputes between individuals or organizations and typically seeks some type of compensation for the harmed party. For example, let’s say you purchased a car from your neighbor. You came to an agreement, signed the legal documents, and started making payments to your neighbor. However, your neighbor fails to give you the car. What do you do? You can sue this individual, and it will fall under the civil law category.
Civil Law
Civil law: Law that deals with disputes between individuals or organizations and typically seeks some type of compensation for the harmed party
Derived from Roman law and deals with matters of law imposed by the state rather than moral law
Civil law includes:
Tort actions: may be intentional (involving a party who acted purposefully to cause harm), negligence (involving a party who failed to prevent harm), or strict liability (involving a corporation, agency, or person responsible for any harm, whether intentional or negligent). Many times, this may be due a faulty product that has caused some type of bodily harm to a consumer.
Estates: For example, after a contested will is read and who takes ownership of the property.
Contracts : For example, breaking a legal and binding contract such as a car lease or apartment housing lease.
Defamation (damaging the good reputation of another): For example, the Amber Heard vs. Johnny Depp trial
Property: For example, damage to another person’s property.
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Types of Law – Civil law
Civil Law
Small claims courts: Limited jurisdiction to settle minor disputes below a certain dollar threshold.
Compensatory damages: Money awarded for loss.
Punitive damages: Money awarded as a punishment to the defendant.
Class action lawsuits: Large number of victims.
Typically, what we think when we hear the terms, “settlement” or “settled in court”
Still, obstacles and challenges
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3.4 Explain the differences between the different types of law.
In addition, civil law also encompasses small claims courts, compensatory damages, punitive damages, and class action lawsuits.
Small claims courts: Courts of limited jurisdiction with the authority to settle minor disputes below a certain dollar threshold
Civil courts have a lower threshold of proof than criminal courts
To be determined guilty, the court only needs to show a preponderance of the evidence. Note, this is DIFFERENT than to criminal law, which requires ”beyond a reasonable doubt”. Oftentimes, if a citizen or lawyer may not think a criminal case can be won via criminal court, they may take the case to a civil court instead due to the lower burden of proof requirement. This is also why you tend to see more white-collar crimes, corporate crimes and healthcare crimes handled in civil court as opposed to criminal court.
Compensatory damages: Money awarded in a civil lawsuit for loss or injury suffered as a result of unlawful conduct. For example, if we bring back the Amber Heard vs. Johnny Depp trial, the guilty parties (which were both of them) had to pay each other compensatory damages; although the amount varied depending on the party.
Punitive damages: Money awarded in addition to compensatory damages to punish the defendant for recklessness, malice, or deceit.
Class action lawsuits: Civil cases involving large numbers of victims in which courts authorize a single individual or small faction to represent the interests of the larger group
Example 1: $25 million settlement to some of the 5,000 students of the now-defunct Trump University, which was found to be engaging in deceptive and illegal acts.
Example 2: $7.5 billion settlement with Visa and MasterCard, overpaying fees and having accounts opened without the owner’s consent.
Despite the lower standard of evidence that needs to be proven, there are still some obstacles and challenges of civil law cases. Notably, here are some examples below:
Obstacles in pursuing civil cases:
High cost of legal representation
Investment of time away from work and family
The idea that class action lawsuits will result in adequate compensation for losses
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Types of Law – Administrative law
Administrative Law
Derives from a legislative body’s delegation of authority to commissions or boards to regulate activities controlled by written statutes.
E.g., Workers’ Compensation Act.
Federal organizations like the Food and Drug Administration are given authority to develop rules and regulations to ensure compliance with the law.
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3.4 Explain the differences between the different types of law.
Let’s now turn to administrative law. Administrative Law derives from a legislative body’s delegation of authority over commissions or boards to regulate activities controlled by written statutes. This would be, for example, workers compensation. Workers compensation is regulated and enforced via each state’s division of workers compensation and their administrative rules and regulations. There are other federal organizations that are given power and authority to create rules and regulations that better protect people, and minimizes harm. For example, the Food and Drug Administration is there to regulate the food and pharmaceutical industry to ensure that all companies that are creating food and drugs for consumption meet certain standards. This is to prevent food poisoning or drug poisoning for consumers such as us.
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Legal Definitions – Elements of crime
Elements of a Crime
Three primary elements:
Actus reus: the physical act or “guilty act”
Mens rea: criminal intent or “guilty mind”
Causation: that act and intent has caused the injury or crime
Other elements:
Concurrence: guilty act and mind must occur simultaneously.
Harm.
Attendant circumstances: external factors.
Evidence: beyond a reasonable double
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3.5 Define the elements of a crime and two main classifications of crime.
Now, we are going to go back into the study of criminal law. What are the necessary elements of a crime?
Well, there are three primary elements.
Elements of a Crime
1. Actus reus: Latin for “guilty act,” used to indicate the physical act of the crime. Usually paired with mens rea to show criminal liability.
2. Mens rea: Latin for “guilty mind,” used in court to prove criminal intent
3. Causation
In addition to these three elements, prosecutors must also deal with:
1. Concurrence: concurrence requires that the guilty act and mind occurred simultaneously
2. Harm : was someone injured?
3. Attendant circumstances: external factors surrounding the case
With respect to evidence, the standard is beyond a reasonable double. Moreover, the burden of proof is on the prosecution to show the elements of the crime have been met. Although, keep in mind that the wording/elements of a crime may vary from jurisdiction to jurisdiction.
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Legal Definitions – Classifying crimes
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3.5 Define the elements of a crime and two main classifications of crime.
So those prior three elements are what constitutes a crime. However, we can also understand crime via classifications. Notably, these classifications are set by the seriousness of the crime. For example,
Misdemeanor: A less serious crime punishable by fine, forfeiture, or short-term confinement, though in some jurisdictions gross, aggravated, or serious misdemeanors may be charged
Wobblers: Crimes that can be charged as either felonies or misdemeanors
Felony: A criminal offense (e.g., murder, robbery, rape) that is more serious and generally results in more severe punishment than a misdemeanor
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Classifying Crimes:
1. Misdemeanor: less serious crimes punishable by fine, forfeiture, or short confinement.
2. Wobblers: felony crimes that may be reduced to a misdemeanor.
3. Felony: more serious and generally results in more severe punishment.
Criminal Defenses
Excuse: Mitigating factors that explain why the person committed crime.
Relates to status or capacity/incapacity of the accused, like duress.
Example: insanity
Justification: The quality of the fact.
Self-defense is a justification.
Example: home intruder
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3.6 Review the types of criminal defenses available to defendants.
After a crime is classified and goes forward in the process, there comes the criminal defense. For the criminal defense, there are a number of different types. For example, a defendant may have an excuse or justification for committing such crimes.
Legal Defenses:
Excuse: provides mitigating factors that explain why the person engaged in criminal activity and relates to the status or capacity (or lack thereof) of the accused
Ex: duress (like insanity)
Justification: refers to the quality of the act
Ex: self-defense (from an intruder, attacker, etc.)
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Criminal Defenses - Types
Legal Defenses
Alibi: defendant was not present
Automatism: PTSD, severe mental disability
Consent: victim gave permission (not valid against assisted suicide in most states)
Double jeopardy: once a person is tried and acquitted of a criminal act, he or she or they can’t be taken to trial again
Duress: a person is forced or coerced
Entrapment: law enforcement officer tricks or manipulates the situation
Infancy: children (<7 years old) who are unable to grasp consequences of their actions
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3.6 Review the types of criminal defenses available to defendants.
Your textbook goes into more details about the legal defenses and the types of excuses and justifications and defendants may use. Below are some more commonly used criminal defenses that you may have heard of, or be familiar with than other defenses.
Alibi: defendant was not present at the scene and therefore could not be the person who committed the crime
Automatism: dreamlike states, posttraumatic stress, or severe mental disability may result in a criminal action that is unavoidable
Consent: the victim gave permission to the defendant to act in an illegal manner against him or her
Not a valid defense against assisted suicide in most states
Double jeopardy: once a person is tried and acquitted of a criminal act, he or she cannot be taken to trial again
Duress: when a person is forced or coerced into committing a crime
Entrapment: occurs when a law enforcement officer convinces someone, whether through trickery or manipulation, to commit a criminal act he or she would not otherwise have committed
Ex: John DeLorean
Infancy: a defense in criminal law for children who are unable to grasp the consequence of their actions, usually under the age of 7
Can’t form mens rea
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Criminal Defenses - Types
Legal Defenses
Intoxication: voluntary and involuntary (e.g., hazing, drugged)
Mistake of fact: ignorance of facts or misunderstanding with no intent to commit a crime
Necessity: no-win situation and “lesser of two evils” (e.g., speeding vs. giving birth in the car)
Restraint: external forces prevented them from controlling their actions
Self-defense: protection of self (or third party) from harm with a reasonable use of force
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3.6 Review the types of criminal defenses available to defendants.
Intoxication
Voluntary intoxication (many states have eliminated voluntary intoxication as a defense)
Involuntary intoxication: when a person is forced to consume or inject alcohol or drugs or unknowingly takes a substance
Mistake of Fact: ignorance of facts or misunderstanding with no intent to commit a crime
Necessity: no-win situation and “lesser of two evils”. For example, trespassing to save a person’s life.
Restraint: external forces prevented them from controlling their actions
Self-defense: a person may protect himself or herself (or a third party) from harm with a reasonable use of force
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Criminal Defenses - Insanity
Legal Defenses
Insanity defense standards:
M’Naghten standard: “right-wrong” test.
Durham test: determine if a mental defect was the reason for criminal behavior.
Brawner rule: Appreciating the difference between right and wrong.
Irresistible impulse test: Did mental disease prevent person from controlling their behavior?
Battered woman syndrome: Developed to excuse or mitigate actions of women who kill their abusers.
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3.6 Review the types of criminal defenses available to defendants.
What about claiming insanity? This concept is a bit more convoluted and so there are insanity defense standards that have to be met, in order to claim insanity. Below are some example standards.
M’Naghten standard
The right-wrong test requires the jury to consider:
Did the defendant understand what he was doing when he committed the crime?
Did the defendant know that his actions were wrong?
Durham test: Determines whether a criminal act was a product of mental disease or defect. This requires that jurors determine whether a defendant had a mental disease or defect and if the condition was the reason for the criminal behavior.
Brawner rule: Also called the ALI rule, it reduced “knowing right from wrong” to the capacity to appreciate the difference between the two. In other words, a defendant must possess an “understanding of his conduct” and be able to “control his actions.”
Irresistible impulse test: A defense that fails to find a person criminally responsible if mental disease prevents the person from controlling his or her behavior (e.g., Lorena Bobbitt)
Battered woman syndrome: A criminal defense developed to excuse or mitigate the actions of women who kill their abusers in cases of domestic violence despite a lack of imminent danger
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Evolving Standards and Practices
Technology
Law enforcement may use technology unconstitutionally.
Example: U.S. v. Jones: GPS monitor
Ex Post Facto Laws
Laws passed after a crime.
Example: sex offender registry laws
White-Collar Crimes
Many criminals use technology to commit offenses.
Example: UC Irvine fertility clinic. Instead of getting in trouble for allegedly misusing women’s eggs in fertility treatment, the doctors were charged with wire, mail, and insurance fraud. In 1995, there were no laws about the “theft of human eggs.”
Outdated Laws
Difficult to get rid of outdated laws.
Example: Plessy vs. Ferguson (1896), illegal businesses in fortune-telling, astrology or palmistry
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3.7 Discuss how legal standards and practices have evolved in recent history.
If we recall last week’s lecture, we know that laws are constantly changing and evolving. Earlier in this presentation, we know that laws change based on societal norms, cultural shifts, as well as technology. With technology specifically, we sometimes find our CJS to be more reactive rather than proactive. This is because criminals may use technology in ways that the CJS may not have been able to predict. For example, computer hacking and the use of viruses are just some examples of how computers and technology are evolving and as a result, new laws are passed after these types of crimes have permeated into society.
Evolving Standards and Practices
Technology
Criminals use technology in many different ways, and the law has to try keep pace
Law enforcement use of technology may be unconstitutional
U.S. v. Jones: GPS monitor attached to a car is a search under the Fourth Amendment
Kyllo v. United States: Using thermal imaging to locate marijuana grown in a home was a violation of privacy
Other uses of technology in the criminal justice system
Body cameras, CCTV, drones, efiling court documents, etc.
Ex Post Facto Laws
Ex Post Facto Laws: Laws passed by a legislature after a crime is committed. At the time the person committed the action, it was legal, and only later was the act deemed criminal.
Some would argue that many laws dealing with sex offenders are essentially ex post facto laws, although the courts have disagreed with this assertion
White-Collar Crimes
Many criminals use technology to commit offenses like fraud or theft
Outdated Laws
Once laws have been passed and/or precedent has been established, it is often difficult to get rid of the outdated law
Plessy v. Ferguson (1896): found “separate but equal” doctrine to be constitutional
Brown v. Board of Education (1954): racial segregation violated the equal protection clause of the Fourteenth Amendment
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The Rights of Victims
Victims’ Rights Amendment (VRA).
Modern trend: increase victims’ rights.
Right to fairness, respect, and dignity.
Right to reasonable notice of and the right not to be excluded from public proceedings related to the offense.
Right to be heard at any release, plea, and sentencing court session.
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3.8 Distinguish the importance of victim rights and their role in the criminal justice system.
So we have been focusing a lot on criminals and criminal law as well as civil law. But where do victims come into play? Currently, the modern trend is toward victims’ rights, and some states have enacted legislation defining their rights. For example, most states have created statutes defining basic rights and protections for crime victims.
These rights include, but are not limited to:
Right to attend the criminal trial
Right to apply for compensation
Right to participate in criminal proceedings
Right to be informed of proceedings and events in the process
And in 2013, House of Representatives’ Committee on the Judiciary held a hearing on proposed Victims’ Rights Amendment (VRA)
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The Rights of Victims
Right to notification of release or escape of the accused.
Right to due consideration of the crime victim’s safety and privacy.
Right to restitution.
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3.8 Distinguish the importance of victim rights and their role in the criminal justice system.
So we have been focusing a lot on criminals and criminal law as well as civil law. But where do victims come into play? Currently, the modern trend is toward victims’ rights, and some states have enacted legislation defining their rights. For example, most states have created statutes defining basic rights and protections for crime victims.
These rights include, but are not limited to:
Right to attend the criminal trial
Right to apply for compensation
Right to participate in criminal proceedings
Right to be informed of proceedings and events in the process
And in 2013, House of Representatives’ Committee on the Judiciary held a hearing on proposed Victims’ Rights Amendment (VRA)
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