CCJS 100 - Criminal Law Discussion - DUE TOMORROW

Introduction to Criminal Justice

Section 3.1: Sources of Criminal Law

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

Clearing Up Some Confusion

The term criminal law can be confusing.

This is because some sources use it in a very general way to describe the entire spectrum of laws dealing with the criminal justice system;

others use it as a shorthand way of referring to what is also known as the substantive criminal law.

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How We Will Approach It

We will follow the latter approach by using the heading “criminal law” to refer to the substantive criminal law, which is the part of the law that describes what acts are prohibited and what punishments are associated with those acts.

Also included are legal defenses (such as the insanity defense) that apply in criminal cases.

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Felonies and Misdemeanors

This distinction depend largely on the seriousness of the offense and the type of punishment associated with the offense.

Things like petty thefts, simple assault, disorderly conduct, and public drunkenness are relatively nonserious crimes classified as misdemeanors.

Misdemeanors are usually only punishable by fine and imprisonment in a local jail for a period less than a year.

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Felonies

Felonies are serious crimes (e.g., rape, murder, burglary, kidnapping) where the punishment can be death or a long period (at least a year) of incarceration in a state-run prison.

Note that this distinction depends on the sentence; some convicts go to prison for less than a year because of early release programs such as “good time” and parole.

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Illegal v. Evil

There is also a distinction between types of criminal law based upon the inherent evil of the act.

If the act is "wrong in itself," it is considered a mala in se offense.

If an act is not necessarily evil and is only considered criminal because it is prohibited by the government, it is considered a mala prohibita offense.

Most so-called "victimless crimes" are mala prohibita offenses.

Because people's views vary so widely as to the inherent wrongness of an act, there is no absolute standard for classification.

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Visible Crime

Criminal acts that are highly visible to the public are often referred to as visible crime, ordinary crime, or street crime.

The overt nature of such crimes makes notice by police more likely, and thus prosecution more likely.

Murder is a common example: Most murders come to the attention of the police, and prosecution is more likely than for most other offenses.

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Occupational Crimes

Occupational crimes are less obvious.

These are crimes that a particular job provides the criminal opportunity for.

The most common example is embezzlement.

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Organized Crime

Crimes committed by groups with a discernable organization structure are classified as organized crime.

Organized crime is considered especially heinous because groups can cause more criminal damage, and the groups make for more difficult investigations and prosecutions.

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Cybercrime

A large swath of criminal offenses involving computers and related technologies are collectively known as cybercrime.

Cybercrime involves disparate acts such as distributing child pornography, sending out mass emails in an attempt to obtain identifying information (phishing), distributing viruses designed to damage computer systems, hacking into business computers to steal money, and so forth.

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Hate Crimes

Crimes that are motivated by bias toward a particular race, religion, ethnicity, or sexuality are known as hate crimes.

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Civil Law

At civil law, a wrong done to another person is called a tort.

When a harmed individual (the plaintiff) wins a tort case in civil court, they may also win a money award referred to as damages.

In other words, torts are private wrongs.

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Criminal Law Theory

A criminal prosecution operates under a different legal theory.

A crime, the theory holds, may harm the individual, but it also harms all of society.

Since the people are represented by the state, all criminal prosecutions are brought forward in the name of the state.

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Who Brings Criminal Charges?

What the “state” calls itself can vary from state to state; some prosecutions are done in the name of the “people”, and some are done in the name of the “commonwealth.”

Regardless of how the case is named, a prosecutor working for the government on behalf of society brings it forward.

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Criminal and Civil Interaction

It is important to note that the criminal system and the civil system sometimes interact.

A person can be found guilty of a crime in criminal court, and found liable for a tort for the exact same behavior.

In addition, individuals that have suffered losses due to criminal actions can sometimes use the civil courts to recoup their losses.

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A Matter of Statute

While the United States is a common law country, most criminal laws are a matter of statutes today.

An essential difference between a state criminal statute and a federal criminal statute is that federal laws will usually contain a jurisdictional element.

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Federal Crimes

Because of the constitutional limits placed on the authority of Congress to make criminal laws, federal criminal statutes must be tailored to a particular power delegated to Congress, such as the power to regulate interstate commerce.

Most criminal laws exist on the state level because of this limitation.

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Overlapping Jurisdiction

When a particular act is criminal on both the state and federal level, there is overlapping jurisdiction in the case.

As a matter of constitutional law, the person could be prosecuted at both the state and federal levels.

In practice, this rarely happens.

In a few high-profile cases, federal prosecutors have taken up a case when the public widely perceived that justice was not done in the state court.

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The Common Law

The term common law can be disturbingly vague for the student.

That is because different sources use it in several different ways with subtle differences in meaning.

The best way to get a grasp on the term’s meaning is to understand a little of the history of the American legal system.

Common law, which some sources refer to as “judge-made” law, first appeared when judges decided cases based on the legal customs of medieval England at the time.

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An Oral Tradition

It may be hard for us to imagine today, but in the early days of English common law, the law was a matter of oral tradition.

That is, the definitions of crimes and associated punishments were not written down in a way that gave them binding authority.

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Reporters

By the end of the medieval period, some of these cases were recorded in written form.

Over a period, imported judicial decisions became recorded on a regular basis and collected into books called reporters.

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Blackstone’s Commentaries

The English-speaking world is forever indebted to Sir William Blackstone, an English legal scholar, for collecting much of the common law tradition of England and committing it to paper in an organized way.

His four-volume set, Commentaries on the Laws of England, was taken to the colonies by the founding fathers.

The founding fathers incorporated the common law of England into the laws of the Colonies, and ultimately into the laws of the United States.

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The Modern Link to Common Law

In modern America, most crimes are defined by statute.

These statutory definitions use ideas and terms that come from the common law tradition.

When judges take on the task of interpreting a statute, they still use common law principles for guidance.

The definitions of many crimes, such as murder and arson, have not deviated much from their common law origin.

Other crimes, such as rape, have seen sweeping definitional changes.

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The Doctrine of Precedent

One of the primary characteristics of the common law tradition is the importance of precedent.

Known by the legal Latin phrase stare decisis, the doctrine of precedence means that once a court makes a decision on a particular matter, they are bound to rule the same way in future cases that have the same legal issue.

This is important because a consistent ruling in identical factual situations means that everyone gets the same treatment by the courts.

The doctrine of stare decisis ensures equal treatment under the law.

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Constitutions When the founding fathers signed the Constitution, they all agreed that it would be the supreme law of the land; the Framers stated this profoundly important agreement in Article VI.

After the landmark case of Marbury v. Madison (1803), the Supreme Court has had the power to strike down any law or any government action that violates constitutional principles.

This precedent means that any law made by the Congress of the United States or the legislative assembly of any state that does not meet constitutional standards, is subject to nullification by the Supreme Court of the United States.

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State Constitutions

Every state adopted this idea of constitutional supremacy when creating their constitution.

All state laws are subject to review by the high courts of those states.

If a state law or government practice (e.g., by the police, courts, or corrections) violates the constitutional law of that state, then it will be struck down by that state’s high court.

Local laws are subject to similar scrutiny.

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Statutes

Statutes are written laws passed by legislative assemblies.

Modern criminal laws tend to be a matter of statutory law.

In other words, most states and the federal government have moved away from the common-law definitions of crimes and established their own versions through the legislative process.

Thus, most of the criminal law today is made by state legislatures, with the federal criminal law being made by Congress.

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Codification

Legislative assemblies tend to consider legislation as it is presented, not in subject order.

This chronological ordering makes finding the law concerning a particular matter very difficult.

To simplify finding the law, almost all statutes are organized by subject in a set of books called a code.

The body of statutes that comprises the criminal law is often referred to as the criminal code, or less commonly as the penal code.

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Administrative Law

The clear distinction between the executive, legislative, and judicial branches of government becomes blurry when U.S. governmental agencies and commissions are considered.

These types of bureaucratic organizations can be referred to as semi-legislative and semi- judicial in character.

These organizations have the power to make rules that have the force of law, the power to investigate violations of those laws, and the power to impose sanctions on those deemed to be in violation.

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Who Makes these “Laws?”

Examples of such agencies are the Federal Trade Commission (FTC), the Internal Revenue Service (IRS), and the Environmental Protection Agency (EPA).

When these agencies make rules that have the force of law, the rules are collectively referred to as administrative law.

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Case Law

When the appellate courts decide a legal issue, the doctrine of precedence means that future cases must follow that decision.

This means that the holding in an appellate court case has the force of law: Such laws are often referred to as case law.

The entire criminal justice community depends on the appellate courts, especially the Supreme Court, to evaluate and clarify both statutory laws and government practices against the requirements of the Constitution.

These legal rules are all set down in court cases.

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Introduction to Criminal Justice

Section 3.2: Substantive Criminal Law

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

Defining Criminal Law

The criminal law in its broadest sense encompasses both the substantive criminal law and criminal procedure.

In a more limited sense, the term criminal law is used to denote the substantive criminal law, and criminal procedure is considered another category of law.

Most college criminal justice programs organize classes this way.

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Substantive Criminal Law

Recall that the substantive law defines criminal acts that the legislature wishes to prohibit, and specifies penalties for those that commit the prohibited acts.

For example, murder is a substantive law because it prohibits the killing of another human being without justification.

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No Crime Without Law

It is fundamental to the American way of life that there can be no crime without law. This concept defines the idea of the Rule of Law.

The rule of law is the principle that the law should govern a nation, not an individual.

The importance of the rule of law in America stems from the colonial experience with the English monarchy.

It follows that, in America, no one is above the law.

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Constitutional Limits

Unlike the governments of other countries, the legislative assemblies of the United States do not have unlimited power.

The power of Congress to enact criminal laws is circumscribed by the U.S. Constitution.

These limits apply to state legislatures as well.

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Bills of Attainder and Ex Post Facto Laws

A bill of attainder is an enactment by a legislature that declares a person (or a group of people) guilty of a crime and subject to punishment for committing that crime without the benefit of a trial.

An ex post facto law is a law that makes an act done before the legislature enacted the law criminal and punishes that act.

Both of these types of laws are strictly prohibited by the U.S. Constitution.

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Fair Notice and Vagueness

The due process clauses of the Fifth and Fourteenth Amendments mandate that the criminal law afford fair notice.

The idea of fair notice is that people must be able to determine exactly what is prohibited by the law, and so vague and ambiguous laws are prohibited.

If a law is determined to be unclear by the Supreme Court, it will be struck down and declared void for vagueness.

Such laws would allow for arbitrary and discriminatory enforcement if allowed to stand.

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The First Amendment

The First Amendment to the United States Constitution guarantees all Americans the “freedom of expression.”

Among these “expressions” are the freedom of religion and the freedom of speech.

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The First Amendment and Criminal Law

Any criminal law passed by the legislature that infringes on these rights would not withstand constitutional scrutiny.

There are, however, some exceptions.

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Clear and Present Danger

When the health and safety of the public are at issue, the government can curtail the freedom of speech.

One of the most commonly cited limiting principles is what has been called the clear and present danger test.

This test, established by the Supreme Court in Schenck v. United States (1919), prohibits inherently dangerous speech, such as falsely shouting “fire!” in a crowded theater.

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Fighting Words

Another prohibited type of speech has been referred to as fighting words.

This means that the First Amendment does not protect speech calculated to incite a violent reaction.

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Other Unprotected Speech

Other types of unprotected speech include hate speech, profanity, libelous utterances, and obscenity.

These latter types of speech are very difficult to regulate by law because they are very hard to define and place limits on.

The current trend has been to protect more speech that would have once been considered obscene or profane.

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Freedom of Religion

The freedom to worship as one sees fit is also enshrined in the Constitution.

Appellate courts will strike down statutes that are designed to restrict this freedom of religion.

The high court has protected door-to-door solicitations by religious groups and even ritualistic animal sacrifices.

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Limits on Religious Freedom

The Court, however, has not upheld all claims based on the free exercise of religion.

Statutes criminalizing such things as snake handling, polygamy, and the use of hallucinogenic drugs have all been upheld.

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The Freedom of Assembly

The First Amendment protects the right of the people to assemble publicly, but it is not absolute.

The courts have upheld restrictions on the time, place, and manner of public assemblies, so long as those restrictions were deemed reasonable.

The reasonableness of such restrictions usually hinges on a compelling state interest.

The freedom of assembly does not protect conduct that jeopardizes the public health and safety.

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The Second Amendment

The constitutionally guaranteed “right to keep and bear arms” in the Second Amendment is by no means absolute, has been the source of much litigation and political debate in recent years.

The Supreme Court has established that the second Amendment confers a right to the carrying of a firearm for self-defense, and that right is applicable via the Fourteenth Amendment to the states.

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Restrictions on the Second Amendment

Typical restrictions include background checks and waiting periods.

Some jurisdictions highly regulate the concealing, carrying, and purchase of firearms, and many limit the type of firearms that can be purchased.

Many criminal laws have enhanced penalties when they are committed with firearms.

Most gun laws and concealed carry laws vary widely from jurisdiction to jurisdiction.

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Eighth Amendment

The Eighth Amendment to the United States Constitution prohibits the imposition of Cruel and Unusual Punishments.

Both the terms cruel and unusual do not mean what they mean in everyday usage; they are both legal terms of art.

The Supreme Court has incorporated the doctrine of proportionality into the Eighth Amendment.

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Doctrine of Proportionality

Proportionality means that the punishment should fit the crime, or at least should not be grossly disproportionate to the offense.

The idea of proportionality has appeared in cases that considered the grading of offenses, the validity of lengthy prison sentences, and whether the imposition of the death penalty is constitutional.

The legal controversies of “three strikes laws” and the death penalty will be discussed at greater length later in the course.

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The Right to Privacy

Most American’s view the right to privacy as a fundamental human right.

It is shocking, then, to find that the U.S. Constitution never expressly mentions a right to privacy.

The Supreme Court agrees that such a right is fundamental to due process, and has established the right as being inferred from several other guaranteed rights.

Among these are the right of free association, the prohibition against quartering soldiers in private homes, and the prohibition against unreasonable searches and seizures.

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The Right to Privacy and Criminal Law

The right to privacy has been used to protect many controversial practices that were (at least at the time) socially unacceptable to large groups of people.

For example, early courts decided that laws prohibiting single people from purchasing contraceptives were unconstitutional based on privacy rights arguments.

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Case Law

The right to an abortion established in Roe v. Wade (1973) hinged primarily on a privacy rights argument.

More recently, in Lawrence v. Texas (2003), the court ruled that laws prohibiting private homosexual sexual activity were unconstitutional, and in the Lawrence case, privacy rights were the deciding factor.

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Introduction to Criminal Justice

Section 3.3: Elements of Crimes

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

The Importance of Elements of Crimes

The legal definitions of all crimes contain certain elements.

If the government cannot prove the existence of these elements, it cannot obtain a conviction in a court of law.

Other elements are not part of all crimes, but are only found in crimes that prohibit a particular harm.

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Distinguishes Between Offenses

Often, a difference in one particular element of a crime can distinguish it from another related offense, or a particular degree of the same offense.

At common law, for example, manslaughter was distinguished from murder by the mental element of malice aforethought.

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The Actus Reus

The First Amendment permits people to say pretty much whatever they want.

What you think and say (within limits) is protected. It is what you do—your behaviors—that the criminal law seeks to regulate.

Lawyers use the legal Latin phrase actus reus to describe this element of a crime.

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“Act” is a verb!

It is commonly translated into English as the guilty act.

The term act can be a bit confusing.

Most people tend to think of the term act as an action verb—it is something that people do.

The criminal law often seeks to punish people for things that they did not do.

When the law commands people to take a particular action and they do not take the commanded action, it is known as an omission.

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Threats and Attempts

Threatening to act or attempting an act can also be the actus reus element of an offense.

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Possession

In addition to acts and omissions, possession of something can be a criminal offense.

The possession of certain weapons, illicit drugs, burglary tools, and so forth are all guilty acts as far as the criminal law is concerned.

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Types of Possession

Actual possession is the legal idea that most closely coincides with the everyday use of the term.

Actual possession refers to a person having physical control or custody of an object.

In addition to actual possession, there is the idea of constructive possession.

Constructive possession is the legal idea that the person had knowledge of the object, as well as the ability to exercise control over it.

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Criminal Intent

A fundamental principle of law is that to be convicted of a crime, there must be a guilty act (the “actus reus”) AND a culpable mental state (the “mens rea” – which means guilty mind).

Therefore: Criminal liability = Actus Reus (Act) + Mens Rea (Intent).

Recall that culpability means blameworthiness.

In other words, there are literally hundreds of legal terms that describe mental states that are worthy of blame.

The most common is intent.

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The Model Penal Code

The Model Penal Code boils all of these different terms into four basic culpable mental states:

1. PURPOSELY 2. KNOWINGLY 3. RECKLESSLY 4. NEGLIGENTLY

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Purposely

According to the Model Penal Code, a person acts purposely when “it is his conscious objective to engage in conduct of that nature….”

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Knowingly

A person acts knowingly if “he is aware that it is practically certain that his conduct will cause such a result.”

In other words, the prohibited result was not the actor’s purpose, but he knew it would happen.

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Recklessly

A person acts recklessly if “he consciously disregards a substantial and unjustifiable risk.”

Further, “The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law- abiding person would observe in the actor’s situation.”

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Negligently

A person acts negligently when “he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.”

The idea is that a reasonably carefully person would have seen the danger, but the actor did not.

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Strict Liability

At times, the legislature will purposely exclude the mens rea element from a criminal offense.

This leaves only the guilty act to define the crime.

Crimes with no culpable mental state are known as strict liability offenses.

Most of the time, such crimes are mere violations such as speeding.

An officer does not have to give evidence that you were speeding purposely, just that you were speeding.

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Strict Liability and Seriousness

If violations such as this had a mental element, it would put an undue burden on law enforcement and the lower courts.

There are a few instances where serious felony crimes are strict liability, such as the statutory rape laws of many states.

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Concurrence

For an act to be a crime, the act must be brought on by the criminal intent.

In most cases, concurrence is obvious and does not enter into the legal arguments.

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Concurrence Example

An individual who breaks into a cabin in the woods to escape the deadly cold outside.

After entering, the person decides to steal the owner’s property.

This would not be a burglary (at common law) since burglary requires a breaking and entering with the intent to commit a felony therein.

Upon entry, the intent was to escape the cold, not to steal.

Thus, there was no concurrence between the guilty mind and the guilty act.

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Criminal Harm and Causation

In criminal law, causation refers to the relationship between a person’s behavior and a negative outcome.

Some crimes, such as murder, require a prohibited outcome.

There is no murder if no one has died (although there may be an attempt).

In crimes that require such a prohibited harm, the actus reus must have caused that harm.

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Introduction to Criminal Justice

Section 3.4: Legal Defenses

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

The Role of Defenses in Court

To successfully obtain a conviction, the prosecutor must prove all of the elements of the crime beyond a reasonable doubt in criminal court.

This is not the end of it in some cases.

It must also be shown (if the issue is raised) that the actus reus and the mens rea were present, but also that the defendant committed the act without justification or excuse.

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Types of Legal Defenses

Both justifications and excuses are types of legal defenses.

If a legal defense is successful, it will either mitigate or eliminate guilt.

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Justifications

A justification consists of a permissible reason for committing an act that would otherwise be a crime.

For example, it would be a crime to shoot a man dead on the street.

If, however, the man was a mugger and had the shooter at knifepoint, then the justification of self-defense could be raised.

A justification means that an act would normally be wrong, but under the circumstances it was the right thing to do.

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Excuse

When a criminal defendant uses an excuse, this means that the act was not the right thing to do, but society should nevertheless hold the actor less culpable because of some extenuating circumstance.

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Insanity

The term insanity under the law can be extremely misleading.

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Not All Mental Diseases Qualify

At law, merely having a mental disease or mental defect is not adequate to mitigate guilt.

It must be remembered that Jeffery Dahmer was determined to be legally sane, even though everyone who knows the details of his horrible acts knows that he was seriously mentally ill.

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Legal Requirements

To use insanity as a legal excuse, the defendant has to show that he or she lacked:

1. The capacity to understand that the act was wrong, or 2. The capacity to understand the nature of the act

Some jurisdictions have a not guilty by reason of insanity (mental disease or defect) plea.

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Logic of the Insanity Defense

The logic of the insanity defense goes back to the idea of mens rea and culpability.

We as a society usually only want to punish those people who knew what they were doing was wrong.

The logic is that blameworthiness rests on the ability to foresee and understand the nature and consequences of the act.

If a person is so mentally ill that they do not understand that what they are doing is wrong, it is morally wrong to punish them for it.

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M’Naghten Rule

Over the years, different courts in different jurisdictions have devised different tests to determine systematically if a criminal defendant is legally insane.

One of the oldest and most enduring tests is the M’Naghten rule, handed down by the English court in 1843.

The basis of the M’Naghten test is the inability to distinguish right from wrong.

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Irresistible Impulse Test

The Alabama Supreme Court, in the case of Parsons v. State (1887), first adopted the Irresistible Impulse Test.

The basic idea is that some people, under the duress of a mental illness, cannot control their actions despite understanding that the action is wrong.

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Substantial Capacity Test (MPC)

A person is not culpable for a criminal act:

“If at the time of the crime as a result of mental disease or defect the defendant lacked the capacity to appreciate the wrongfulness of his or her conduct or to conform the conduct to the requirements of the law.”

In other words, this test contains the awareness of wrongdoing standard of M’Naghten as well as the involuntary compulsion standard of the irresistible impulse test.

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Myth v. Reality

It is a Hollywood myth that many violent criminals escape justice with the insanity defense.

In fact, the insanity defense is seldom attempted by criminal defendants and is very seldom successful when it is used.

Of those who do successfully use it, most of them spend more time in mental institutions than they would have spent in prison had they been convicted.

The insanity defense is certainly no “get out of jail free card.”

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Entrapment

Entrapment is a defense that removes blame from a person who commits a criminal act when convinced to do so by law enforcement.

In other words, people have the defense of entrapment available to them when police lure them into committing a crime.

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Elements of Entrapment

A valid entrapment defense has two related elements:

1. There must be a government inducement of the crime, and 2. The defendant's lack of predisposition to engage in the criminal conduct

Mere solicitation, however, to commit a crime is not inducement.

Inducement requires a showing of at least persuasion or mild coercion.

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Self-defense

As a matter of political theory, the right to use force is handed over to the government via the social contract.

This power to use force is entrusted to law enforcement.

Thus, when force is called for to end a confrontation, people should call the police.

There are times, however, when the police are not available in emergencies.

In these rare instances, it is permissible for the average citizen to use force to protect themselves and others from violent victimization.

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The Legality Test

The legality of using force in self-defense hinges on reasonableness.

Whether a use of force decision was a reasonable one will always depend on the circumstances of each individual situation.

The amount of force used should be the minimum likely to repel the attack.

The defense also requires that the danger be imminent.

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Deadly Force Limits

The use of force cannot be preemptive or retaliatory.

Generally, deadly force can only be used to prevent loss of life.

Some jurisdictions allow the use of non-deadly force to prevent thefts.

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Voluntary Intoxication

While there is some logic to the idea that being intoxicated diminishes a person’s capacity to develop mens rea, it usually serves to enhance rather than mitigate criminal culpability.

There are some jurisdictions that allow voluntary intoxication as a factor that mitigates culpability, such as when murder in the first degree is reduced to murder in the second degree.

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Involuntary Intoxication

If a defendant has been given a drug without their knowledge, then a defense of involuntary intoxication may be available.

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Mistakes of Fact

It is often said, “Everybody makes mistakes.”

The law recognizes this, and mistake can sometimes be a defense to a criminal charge.

Mistakes made because the situation was not really the way the person thought it was are known as mistakes of fact.

These can be a criminal defense.

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Mistakes of Law

Mistakes as to matters of law (mistakes of law) can never be used as a criminal defense.

There is a presumption in American law that everyone knows the criminal law.

If a defendant could mount a defense by claiming that he or she did not know the act was criminal, then everyone could commit every crime at least once and get away with it by claiming that they did not know.

For this reason, the law has to presume that everybody knows the law.

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Necessity

The defense of necessity is based on the idea that it is sometimes necessary to choose one evil to prevent another, such as when property is destroyed to save lives.

The necessity defense is sometimes referred to as the lesser of two evils defense because the evil that he actor seeks to prevent must be a greater harm that the evil that he or she does to prevent it.

In most jurisdictions, the defense will not be available if the person created the danger they were avoiding.

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Duress

Duress, sometimes known as coercion, means that the actor did the criminal act because they were forced to do so by another person by means of a threat.

The idea is that while the actor commits the actus reus of the offense, the mens rea element was that of the person that coerced the actor to commit the crime.

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Limits of Duress

The effect of a successful duress defense is a matter of state law, so may be different in different jurisdictions.

Most jurisdictions require that the actor have no part in becoming involved in the situation.

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Introduction to Criminal Justice

Section 3.5: Substantive Offenses

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

1

Elements of Offenses

Unlike the social scientific definitions of crime that essentially consider only the act, legal definitions of crimes are more complex.

An important aspect of understanding these legal definitions is understanding the common elements that constitute each crime.

Once the essential elements of crimes are understood, it is a relatively easy matter to consider the elements that must be proven in court in order to obtain a conviction.

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Common Law Murder

At common law, murder was defined as killing another human being with malice aforethought.

Malice aforethought is a legal term of art that goes beyond the obvious meaning of the two terms:

1. The term malice means the intention to do evil; sometimes defined as “ill will.” 2. Aforethought means thought about or planned beforehand.

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Not Always the Literal Meaning

“Malice Aforethought” suggests that the plan to cause harm was premeditated.

This “murder with intent to kill” is one legal way to look at it, but at common law, malice aforethought could be satisfied in other ways.

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Grievous Bodily Harm

An alternative was a murder committed when the intent was only to cause grievous bodily harm.

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Felony Murder Rule

A person was guilty of murder if someone else was killed while committing a felony.

This is known as the felony murder rule.

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Depraved Heart Murder

Most murders require the specific intent to harm the person that dies.

When someone does something that kills somebody but there was no specific target, then there is a depraved heart murder.

A classic example of this is firing a rifle into a passenger train car.

No specific victim was intended, but it was highly likely that someone would die.

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Modern Statutes

While there are some differences in these common law classifications of murder and the modern statutory classifications, their underlying prohibitions are the same.

The Model Penal Code, for example, prohibits purposefully or knowingly killing another human being.

This functions in a nearly identical way to the common law rule against intentional murder.

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Common Law Parallels

The Model Penal Code punishes killings that come from “extreme recklessness” in a way that mimics the depraved heart murder of common law.

The Model Penal Code creates a rebuttable presumption that a killing committed during the commission of certain felonies shows extreme recklessness.

This provision mimics the felony murder rule in function.

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Assault and Battery

In everyday language, assault and battery are used interchangeably.

In many jurisdictions, however, they are two distinct offenses.

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Assault

An assault is an act that creates an imminent fear that the victim will be harmed, but no actual harm occurs.

In other words, an assault is a threat of force.

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Battery

A battery is the physical act that results in some actual harm to the victim.

Some jurisdictions include any offensive touching in the definition of battery.

Many jurisdictions define an unwanted touching of the sexual organs of another person as a sexual battery.

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Lesser Included Offense

Note that in most cases, the assault is a lesser-included offense of the battery.

That means that in jurisdictions that have both assault and battery statutes, both offenses cannot be charged against the same person for the same act.

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Common Law Rape

Rape is a crime that has evolved dramatically over time.

At common law, rape was defined as the unlawful carnal knowledge of a female without her consent.

In this common law context, the term unlawful means that law did not authorize the act.

Historically, this precluded applying the rape law to a husband who forced his wife to have sex (now known as marital rape).

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Carnal Knowledge

Carnal knowledge is synonymous with sexual intercourse.

Thus, the law was very specific; many violent sexual acts (such as those perpetrated against men) did not fit the legal definition of rape.

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Outdated Elements

Historically, rape has been a very difficult crime for the state to prove.

The most difficult element to prove in court tends to be the fact that the woman did not consent to the act.

Many jurisdictions required that the victim offer forceful resistance to the perpetrator.

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The Victim’s Character

In addition, many required that the victim be of "previously chaste character."

Defense attorneys would use this requirement to attack the victim on the witness stand, increasing the trauma of an already traumatic event.

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Rape Shield Laws

Most states have now passed what are known as rape shield laws.

These are laws designed to protect victims of rape from further trauma.

Most of these laws prohibit the introduction of evidence about the victim's past sexual history and reputation.

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Changes in the Law

The changing legal climate of rape law has influenced the definition used by the FBI's Uniform Crime Reports program.

The traditional UCR definition was “The carnal knowledge of a female forcibly and against her will.”

Many agencies interpreted this definition as excluding a long list of sex offenses that are criminal in most jurisdictions, such as offenses involving oral or anal penetration, penetration with objects, and rapes of males.

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The New FBI Definition

The new UCR definition of Rape created in 2011 is:

“Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

This language is very similar to that of the Model Penal Code's rape statute.

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Arson

Arson has always been considered a very serious crime.

At various times in history, the penalty under the common law for Arson was death by fire; and yes, it is interesting that the penalty for destroying something by fire was paradoxically, death by fire.

Common law arson was very narrowly defined as the malicious burning of the dwelling of another.

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Common Law Arson Elements

In the common law context, a malicious burning was one where the perpetrator had criminal intent.

The burning requirement did not mean that the dwelling had to be completely consumed by the fire.

Smoke and blackening were generally considered to be insufficient; some part of the structure (albeit a very small amount) must be destroyed by the fire.

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Modern Statutes

Modern statutory definitions have tended to expand on what is covered by arson.

Today, most all structures will qualify.

Many states include the burning of any valuable property in the definition of arson, setting the penalty based on the value of the property destroyed.

The model penal code requires that the arsonist have the purpose of destroying another person's building or other structure.

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Differentiating Robbery Robbery is the taking of the property of another by the use of force or threat of force.

Because of the force involved, most jurisdictions classify robbery as a crime against persons rather than a property crime.

For this reason, some force is required for a theft of property to amount to a robbery.

Purse snatching, for example, does not constitute a robbery in most jurisdictions because the only force involved was the amount necessary to acquire possession of the property.

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Grades of Robbery

Many states divide robbery into categories based on the seriousness of the offense.

The use of a weapon, especially a firearm, often elevates the crime to aggravated robbery or first-degree robbery, depending on the jurisdiction.

Most robbery statutes are state laws, but some robberies, notably those that affect interstate commerce or currency, are matters of federal law.

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Burglary

At common law, burglary required that the crime take place in the dwelling house of another at night.

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Modern Variations of Burglary

Most states have greatly broadened this requirement to include any structure at any time of day.

Many jurisdictions draw a distinction between residential burglary and commercial burglary, with the penalty being more severe for residential burglary.

Burglary is much more serious than a mere theft of property because it involves the home (which is sacred under the common law tradition), and the risk of violence is high, as most people will engage in violence to protect their homes and families.

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The Criminal Intent - Burglary

Most modern statutes require a breaking and entering into the home or other structure of another person with the intent to commit a crime therein.

Under most circumstances, the crime will be a theft.

Other offenses contemplated within the structure, such as rape, can also meet the requirements for burglary.

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