CRIMJ100:
Lesson 2 - Criminal Law and Procedure
Introduction
Lesson Overview
The overall purpose of this lesson is to introduce the major concepts associated with criminal law and procedures situated within the American system of justice. How law has evolved over time will be addressed along with a discussion of the major elements of a crime and differences between criminal and civil law. A clear distinction will be made between procedure and substance with an emphasis on the due process of law. Students will become familiar with the constitutional rights of Americans as embedded in the first ten amendments to the U.S. constitution (the Bill of Rights). As pointed out by Siegel in Chapter 3, there should be a recognition that the rule of law governs all aspects of human interactions and enterprises, including crime, family life, property transfer and the regulation of interpersonal conflict.
Lesson Objectives
By the end of this lesson, you should be able to:
- Discuss the historical roots of the modern day legal system and rule of law
- Identify sources of law in modern day society
- Explain the differences between substantive law, procedural law, and civil law
- Define the major concepts embedded within the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution
- Describe the various defenses available to an alleged criminal defendant
- Define the terms: common law, stare decisis, precedence, mala in se, mala prohibitum, actus reus, mens rea, and due process
Readings and Assignments
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Read Chapter 3 in the course textbook.
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Complete the Thought Provoking Exercise and post your thoughts to the discussion board.
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Actively engage in a discussion with your student peers in the Thought Provoking Exercise discussion space, but only after you have posted your initial thoughts first.
- Take the weekly quiz after completing the lesson.
Thought-Provoking Exercise
In T.L.O. vs. New Jersey (1985) the U.S. Supreme Court considered the issue of reasonable searches and seizures on school property. An adolescent female (a.k.a. T.L.O.) was caught smoking in the restroom at her high school. She was taken to the Principal’s office where she denied the allegations. The Principal then asked to see her purse and proceeded to go into the purse to look for cigarettes. As he was looking through the purse, he came across drug paraphernalia and upon closer inspection, found what appeared to be a list of names of people who owed T.L.O. money in exchange for drugs. The police were called to the scene, T.L.O. was taken into custody, and was subsequently adjudicated a delinquent. She appealed her case on the basis of a Fourth Amendment violation. Within that amendment, some argue that the founding fathers established a “right to privacy” through the prohibition against unreasonable searches and seizures by government of a person or his/her property. The key word here is unreasonable. The amendment also has language that makes it clear that not only can unreasonable searches and seizures not occur, but also that a search cannot occur without a warrant. The U.S. Supreme Court sided with the government in this particular case, reasoning that: 1. the school officials are in fact considered to be agents of the government (this occurred in a public school) and thus the Fourth Amendment applies to them; and, 2. school officials have the responsibility of ensuring order and the safety of staff and students; 3. the principal acted in a way that any layperson would agree was reasonable; and, 4. the privacy rights of students must be weighed against the need of school officials to ensure order on school property as well keep staff and students safe.
Not all agree with the Court’s decision in this case. What do you think? When composing your response, think about these questions: Should students have a right to privacy when on school property? Did a violation of the Fourth Amendment occur in T.L.O.’s case? Why or why not?
Post your thoughts to the Lesson 02 Thought Provoking Exercise discussion forum in the Lesson 2 folder. Be sure to return later in the week to respond to other students' posts.
Historical Development of the Criminal Law
As the textbook author states (Siegel 2009), we can trace modern-day law back to 2000 B.C. to the Babylonian Code of Hammurabi. In fact, the term lex talionis, which means an eye for an eye, is an Hammaurabi concept. That concept today can be found in the concept of retributive punishment or ensuring that the punishment fits the crime. The Mosaic Code of the Israelites (1200 B.C.) is another example of how earlier codes among groups of people have influenced law in today’s society. Within the Ten Commandments, after all, is found a list of prohibitions against such behavior as stealing and violent acts. During the Byzantine Empire, emperor Justinian created Corpus Juris Civilis, a body of codes that were enacted to uphold order within the empire and provided a foundation for future civil and criminal legal classifications. In fact, French Emperor Napoleon I used those codes to establish the civil codes (1769-1821) of France. After the fall of the Roman Empire and through the Dark Ages (500-1000 A.D.), the earlier legal codes were lost and emerged again in Germanic societies. Under the concept of wergild (a term that means worth), e.g. “what is this crime worth,” the accused person underwent one of two methods for determining guilt. One, the individual was brought before a 12-14 panel of individuals who would speak on behalf of the defendant and during which time the defendant would swear an oath of innocence. Two, an ordeal could take place through which the accused person could prove his/her innocence. This entailed various torture techniques based on the concept that Divine forces would ensure that an innocent person would not be harmed. Punishments were harsh and included public flogging, branding, beheading, and burning.
Thinking about these early approaches to developing legal codes and punishment techniques, it is not difficult to see how they influenced the modern day legal system. Although early Americans did engage in similar harsh punishment techniques, those techniques were replaced by what is considered to be a more humane approach to punishment.
The Three Categories of Law in Today's Legal System
We can think about modern-day law in three main ways:
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Substantive criminal law is composed of legal statutes that define certain behaviors as criminal in nature, and that outline the punishment for those offenses. In other words, these systems of laws (at the state and Federal level) outline the “substance” of the law. The main purpose of substantive law is to deter criminal behavior and punish offenders such that social order can be maintained.
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Procedural law is associated with the process in place to deal with citizens who break the law and is concerned wit such issues as due process, rules of evidence, and all other matters that are considered to be the rights of U.S. citizens under several amendments contained in the nation’s constitution (see a discussion on this below).
- Civil law is not concerned with government action against a citizen, but with actions between private parties (individuals and organizations). We are most familiar with civil law in terms of wills, contracts, torts (the law of personal injury).
Sources of the Criminal Law
As stated earlier, there are criminal statutes both at the state and federal level. These laws are thought to express the will of the people and arose out of what is referred to as the common law:
That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was later adopted in the U.S. that is based on precedent instead of statutory laws.
The notion of stare decisis is very much a part of common law and basically means that “we will stand by the decision of others.” So too are the terms mala in se (crimes that we all agree are egregious behaviors and deserve strict punishment, such as murder, rape, assault, etc.) and mala prohibitum (behaviors that are prohibited by law but are not as serious as the former and thus change over time to reflect the times, such as so-called victimless crimes like consuming alcohol, drug use, prostitution, gambling, etc.).
A second source of law is referred to as case law. Judges continually decide on cases as criminal offenders are processed through the court system. Often judges are seen as overreaching, or going beyond the intent of the substantive criminal law. Nevertheless, when an attorney is preparing a case, he/she usually looks not only at the actual wording of the statute, but will examine the case law (that established by jurisprudence) to see how the law has been applied or interpreted by the judicial system.
A final source of law is constitutional law and is embodied within the Bill of Rights and the Fourteenth Amendment of the U.S. constitution.
The Elements of a Crime
When a person is accused of a criminal act, government must prove, beyond a reasonable doubt, that: a crime did occur and that it is the accused who committed the act (actus reus) and that the offender intended to and purposefully committed the act (guilty mind or mens rea).
On the other hand, there are some instances when a person can be accused of a crime if they fail to commit an act. Good Samaritan-type legislation, for example, holds a citizen accountable if they do not stop and lend assistance when they see that someone has been injured (such as in an automobile accident). Another example is finding that your roommate has attempted suicide by taking a bottle of sleeping pills and is unconscious on the living room sofa. Under some state laws, you could be charged with failure to lend assistance if you did not call 911 and get her medical assistance.
In sum, an act is not always necessary for a person to be charged with a crime, but the majority of laws are built upon the notion that an act occurred and that the offender intended to commit it.
Criminal Defenses
When individuals are arrested for a crime their thoughts often turn to defending themselves against the accusation. Ask police officers, for example, what they hear from alleged offenders during the arrest. They may here, “But I didn’t do anything,” or “I was defending myself.” During a routine traffic stop, the officer may hear “Officer, I honestly did not know that the speed limit dropped from 65 to 55!” Thus, offenders may argue that they are absolutely innocent, that they were defending themselves against another person’s actions, or they may claim ignorance. In some cases, offenders may use intoxication as a defense; in domestic violence cases this often occurs. The offender will express remorse (at least at times) and beg to be forgiven, blaming his (or her) actions on the fact that he was intoxicated at the time and point to the fact that he does not engage in abusive behavior against his significant other when he has not been drinking.
Sometimes offenders and their attorneys will claim that their actions were justified based on the consent of the victim (e.g. in a rape case) or that they were being blackmailed and their family members threatened by someone else who was leaning on them to commit a crime (e.g. taking funds from one’s employer, such as bank employee).
The well-known insanity defense is based on the notion that a person was not capable of forming mens rea (intent to commit the offense; or, guilty mind). There are many types of defenses under the more general umbrella of “insanity”, including:
- The irresistible impulse test (1834) says that a person may have known that the act that he/she was about to commit was wrong, but was unable to control the behavior nonetheless; and,
- The substantial capacity test (American Law Institute) – “the lack of substantial capacity to control one’s behavior….not having the mental capacity needed to understand the wrongfulness of an act…”
We can trace the insanity defense back to England and the 1843 M’Naghten rule that defined a person as insane if at the time the act was committed, the person was laboring under a defect of reason that resulted from having a diseased mind. This rule has come to be thought of as the basic question of, “Did the person know that what he/she was doing was wrong?”
How often is the insanity defense in the U.S. successful in getting offenders acquitted? According to the Washington Post (see the link below), only in 1% of cases (based on a study that included evidence from eight states in the U.S.) is the insanity defense used. In those cases, only about 25% are successful.
Summary
The United States system of justice functions based on established legal regulations that are codified via the criminal law, all of which have deep historical roots. These statutes are found at both the state and federal level and should be written in such a way as the lay person on the street would not have a problem understanding their meaning (substantive law). That is not the end of it, however, because the written law has to be interpreted by the triers of fact (judges) and the collective decisions from the courts form the basis of the case law. Further, before government can take a person’s liberty, property, or life, it must ensure that due process is followed (procedural law). In the adversarial system of justice, the government must prove that an act actually occurred (actus reus) and that the alleged offender intended to commit the act (mens rea). There are several possible defenses against a criminal charge and the defendant works closely, at least in most cases, to determine the best option for him/her.
There continues to be a debate as to which behaviors should and should not be criminalized, although there is agreement that the more egregious acts of murder, assault, rape, arson, burglary, robbery, etc. should be legislated against. These debates will continue into the future with some behaviors perhaps being decriminalized (e.g. drug use) while others may be added, by law, to the list of already-existing statutes.