© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

Chapter 3Policing:

Criminal Law

Scott Moller, JD

Introduction to Administration of Justice

© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

3.1 Explain the nature and purpose of law.

Discuss the nature of the rule of law, and describe its importance in Western democratic

societies.

Describe the five categories of crime.

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ESIdentify the various categories or types of law,

and explain the purpose of each.

3.2

3.3

3.4

Describe the eight general features of crime.

Discuss the four broad categories of criminal defenses that our legal system recognizes.

Explain what is meant by the elements of a specific criminal offense.

3.5

3.6

3.7

3.1

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes:

Summarize the purpose, primary sources, and development of law.

Laws regulate relationships, channel and constrain human behavior, contribute to public order, maintain values, sustain power, and punish and rehabilitate offenders.

What do laws do?3.1

1. Maintain order in society2. Regulate human interaction3. Enforce moral beliefs4. Define the economic

environment5. Support the powerful6. Promote orderly social change7. Sustain individual rights8. Redress wrongs9. Identify wrongdoers10.Mandate punishment &

retribution

Definitions

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Law - A rule of conduct, generally found enacted in the form of a statute, that proscribes or mandates certain forms of behavior

Statutory law - The written or codified law; the “law on the books,” as enacted by a government body or agency having the power to make laws

Penal code - The written, organized, and compiled form of the criminal laws of a jurisdiction

Case law - The body of judicial precedent, historically built on legal reasoning and past interpretations of statutory laws, that serve as a guide to decision making, especially in the courts

Common law - The body of law originating from usage and custom rather than from written statutes. The term refers to an unwritten body of judicial opinion, originally developed by English courts.

3.1

US Constitution – Art. VI Supremacy Clause

State constitutions – can give more rights, not less, than US Constitution

Statutes – federal and state codes

Agency Regulations – administrative codes, e.g., DOT, IRS

Case law – courts interpret codes and past decisions

Common law – unwritten, judge-made law; underlies many US legal doctrines

Where do our laws come from?3.1

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Common Law3.1• Originally unwritten – Based on customs and traditions handed

down from generation to generation, rather than from written statutes

• Judge-made – English judges created, refined and changed the law through actual decisions, ruling on cases before them

• Eventually written, including the rationale for the decision, for other courts to handle future similar cases in the same way, as legal precedent.

• Precedent – A legal principle that previous judicial decisions are authoritatively considered and incorporated into future cases. Lower courts must follow precedent. Higher courts can overrule or modify lower courts’ decisions.

• Stare decisis - “standing by decided matter,” is a legal principle binding courts, in subsequent cases on similar issues of law and fact, to follow their earlier decisions, and those of higher courts having jurisdiction over them, as precedent.

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

3.2Define the rule of law, including its importance in Western democratic societies.

The Rule of Law

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Rule of law– The maxim that an orderly society must be governed by

established principles and known codes that are applied uniformly and fairly to all of its members

– Sometimes referred to as the supremacy of law– The greatest political achievement of our culture– The foundation of liberties in the Western worldABA notes that the rule of law includes these elements:– Freedom from private lawlessness/anarchy– Highly objective formulation of legal norms– Even-handed application– Legal devices for the attainment of individual and group

objectives– Substantive and procedural limitations on governmental

power

3.2

Jurisprudence – The philosophy of law or the science and study of the law, including the rule of law

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

3.3Summarize the various categories of law, including the purpose of each.

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Types of Law: Criminal vs. Civil Law3.3Criminal law addresses wrongs committed against society, compromising public order.

Civil law governs relations between parties (between and among people and/or entities).

1. Civil Rights2. Contracts3. Employment Law4. Environmental Law5. Family Law – divorce, child support,

etc.6. Real Property7. Wills & Estates8. Torts

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Types of Law: Administrative3.3

Administrative Law– The body of regulations that governments create to

control the activities of industries, businesses, and individuals

– Tax laws, health codes, vehicle registration laws, etc.

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Types of Law: Criminal Law3.3• Criminal Law – The body of rules and regulations

(statutes, interpreted by courts) that define the nature of, and punishments for, wrongs committed against the state or society. Also called penal law.

• Substantive Criminal Law –defines crimes and specifies punishments, e.g., murder, rape, robbery, assault; deals with the conduct of the offender

• Procedural Criminal Law – The part of the law that specifies methods for enforcing substantive law; deals with the conduct of the state, to ensure compliance with the US Constitution, e.g., search and seizure, arrest, etc., particularly found in the 4th, 5th, 6th and 8th Amendments. For more info, see: FRCP, FRE

Types of Law: Civil Law – Torts

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• Torts (Civil Wrongs)– Not a crime, so no state prosecution – plaintiff sues

defendant– A private or civil wrong or injury– A wrongful act, damage, or injury not involving a

breach of contract

3.3

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

3.4 Describe the five categories of crimes and their characteristics.

1. Felony2. Misdemeanor3. Offense4. Inchoate Offense5. Treason & Espionage

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Types of Law: Felony, Misdemeanor, Offense3.4

Felony• Felony – A crime punishable by death or at least one year

of imprisonment. Convicted felons typically lose the right to vote, hold public office, enter certain professions, possess a firearm, serve on a federal jury, or enlist in the armed forces.

• Misdemeanor – A crime punishable by one year or less of imprisonment. Sometimes divided into gross (6-12 mos) and petty (<6 mos) misdemeanors. A misdemeanor must generally take place in front of an officer or a civilian witness who signs a complaint for the arrest to occur

• Offenses/Violations/Infractions – Minor offenses usually ticketable and punishable by a fine only.

CA law allows felons to vote after release from probation or parole. (CA Const., art 11, sec 4.) CA Penal Code sec. 17(b)(3) allows some felons (alternate felony/misdemeanor and granted probation) to later petition the court to have the conviction declared a misdemeanor for all purposes.

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Types of Law: Treason and Espionage3.4

• Treason – A US citizen’s acts to help a foreign government overthrow, make war against, or seriously injure the US. The attempt to overthrow the government of the society of which one is a member.

• Espionage – Gathering, transmitting, or losing information related to the national defense, in such a manner that the information becomes available to enemies of the US.

Treason is the only crime specifically mentioned in the US Constitution.

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Types of Law: Inchoate Offenses3.4• Inchoate (incomplete/partial) offense – An offense

not yet completed. An offense that consists of conduct that is a step toward the intended commission of a crime.

• Conspiracy – When one conspires to commit a crime; an act undertaken in furtherance of the conspiracy is basis for arrest and prosecution.

• Attempt – Example: a person wearing a ski mask and carrying a crow bar, flashlight and gun, while peering into the back door of a stranger’s house may be arrested for attempted burglary.

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

3.5Describe the eight general features of crime.

Eight General Features of Crime3.5

CausationConcurrenceMens ReaActus

Reus

Necessary Attendant

Circumstances

PunishmentLegality

Resulting Harm

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3.5• The criminal act (Actus Reus)

1. A guilty act or omission• Crime of commission – murder, assault, rape,

etc.• Crimes of omission – child neglect, failure to

comply with tax filings, etc.2. that causes or creates imminent threat of3. a social harm condemned by statute– Note: To be something is not a crime; to do

something may be. Thus, being addicted to methamphetamine is not a crime; actively possessing or using it is.

– Threatening to act can be a criminal offense– Conspiracies are another criminal act

Actus Reus

Mens Rea (Guilty Mind)3.5

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Guilty mind (Mens Rea) – The state of mind that accompanies a criminal act. Required element in all but strict liability crimes. Typically must be inferred from defendant’s words & acts. May be:

1. Purposeful – intentional• Transferred intent – bad aim = bad act

2. Knowing – aware to near certainty, e.g., pilot allows stewardess to smuggle cocaine on plane. HIV-infected person knowingly has unprotected sex w/another

3. Reckless – activity increases probability of harm. Driver speeding through school zone hits a child.

4. Criminal negligence – one fails to reasonably perceive substantial, unjustifiable risks of dangerous consequences

• Strict liability crimes (e.g., traffic, statutory rape) require no mens rea.

Note: Motive is different from Mens Rea. Motive is the REASON someone committed a crime.

Examples of Mens Rea3.5

Concurrence3.5

Crime

Actus Reus

Mens ReaConcurrence

1. Actus reus – an act in violation of the law; and

2. Mens rea – a culpable mental state

• Concurrence – The coexistence (at the same time) of:

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3.5• CausationFor guilt to exist, the concurrence of a guilty mind and a criminal act must cause harm

– Legal cause• Must be demonstrated in court in order to hold an

individual criminally liable for causing harm• Harm

– Not all harms are crimes– What about attempts?

• Consider potential for harm– What about so-called “victimless” crimes?

• Consider social harm caused by the behavior

Causation and Harm

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3.5• Legality

– Laws and their punishments must be in writing before an offense occurs to make it illegal

– Highlights the fact that a behavior cannot be criminal if no law exists that defines it as such

– Includes the notion of ex post facto laws• Latin for “after the fact”• Laws are binding only from the date of their

creation

• Punishment– No crime can be said to occur where punishment has

not been specified in the law– nullem crimen sine lege, nulla poena sine lege (“no

crime without law, no punishment without law”)

Legality and Punishment

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3.5• Necessary attendant circumstances

– The facts surrounding an event– Includes such things as time and place– May be classified as aggravating or mitigating

circumstances– Aggravating and mitigating circumstances are not

elements of an offense– Some crimes exist or may be aggravated, due to

circumstances– Examples:

– lewd & lascivious behavior in the presence of a child

– selling drugs within 1,000 feet of a school

Necessary Attendant Circumstances

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

3.6Explain what is meant by the elements of a specific criminal offense.

Statutory Elements of an Offense3.5

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To satisfy the conceptual elements and features just discussed, courts will instruct juries as to the specific elements required to prove a particular crime. Jury instructions are an excellent resource to understand what is necessary for conviction, and to understand the law.

These practical elements of the crime are critically important for the state, the defense, and the police.CA Criminal Jury Instructions

Actus Reus + Mens Rea = Corpus Delicti3.6

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The corpus delicti of a crime literally means “the body of the crime.” These are the facts that show that a crime has occurred.Two aspects to the corpus delicti of a crime:

1. A certain result has been produced

2. A person is criminally responsible for its production

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

3.7Compare and contrast the four general categories of accepted criminal defense.

1.Alibi2.Justifications3.Excuses4.Procedural Defenses

4 Defenses to a Criminal Charge3.7

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1. Alibi – D denies committing crime, claims s/he could not have committed the crime, as s/he was elsewhere

2. Justification – D admits committing the crime, to avoid a greater evil1. Self-defense, home/property – when cornered, reasonable

force2. Defense of others – alter ego rule – person cannot exceed

legal rights of person s/he was defending3. Necessity – The Crown v. Dudley & Stephens4. Consent – incidental contact battery, sex assault5. Resisting unlawful arrest – in some jurisdictions

3. Excuse – D admits crime, but claims that a condition or circumstance then existing means s/he should not be held accountable1. Duress/coercion – e.g., steals payroll to pay ransom2. Age – most jurisdictions hold <7 cannot form criminal intent3. Mistake of law/fact – statutory rape4. Involuntary intoxication5. Unconsciousness – sleepwalking, hypnosis6. Provocation – generally may only justify minor offenses7. Insanity/Diminished Capacity/Incompetence

4. Procedural – D claims the state failed to follow proper procedures

Mental defensesDefense claims inability to meet mens rea3.7

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1. M’Naghten Rule – Dan M’Naghten, suffering vague delusions of Tory Party persecution tried to assassinate British Prime Minister Peel, killed Peel’s secretary. Rule: A defendant (D) who does not know what s/he is doing or that it is wrong lacks mens rea, thus is not guilty (NG)

2. Irresistible Impulse – D knows right from wrong but can’t stop. NG

3. Durham Rule – D’s crime is the product/result of mental defect. NG

4. Substantial Capacity Test – D lacked substantial capacity to know right from wrong or to stop. NG of charged offense – perhaps lesser

5. Brawner Rule – Jury relies on its own sense of fairness to decide whether to hold D responsible. US v Brawner (1972)

6. Guilty But Mentally Ill Verdict – If state proves case, D is mentally ill but not legally insane at time of crime, G. Ford v Wainwright (1976)

7. Temporary Insanity – D only insane at time of crime. Legislatures have limited this defense.

8. Diminished Capacity/Responsibility – defect not enough to exonerate, but might reduce penalty, e.g., 1st deg to 2nd deg murder

Mental Incompetence – Defendant is unable to assist in his/her own defense.

Procedural Defenses3.7

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1. Entrapment – where agents initiate the idea or improperly induce one to commit a crime

2. Double Jeopardy – the 5th Amendment and common law prohibit trying a person twice for the same crime

3. Collateral Estoppel – akin to double jeopardy, collateral estoppel holds that once facts have been judicially determined, they cannot be relitigated with the same parties

4. Selective Prosecution – prosecution of one class and not another with a discriminatory effect and discriminatory purpose violates the 14th Am. Equal Protection clause

5. Denial of Speedy Trial – the 6th Am. guarantees speedy trial; typically within 90-120 days of demand

6. Prosecutorial/Police Misconduct – D claims deceit, etc.

© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

3.1

3.2

3.3

3.4

Types of laws include criminal, civil, administrative, case, and procedural.

The rule of law provides that an orderly society must be governed by established principles applied fairly.

Laws are rules of conduct that regulate relationships between parties.

Violations of criminal law vary in type and severity.

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3.5

3.6

3.7Our legal system recognizes 4 categories of defenses: alibi, justifications, excuses, and procedural defenses.

Written laws specify what constitutes an offense.

From the perspective of Western jurisprudence, all crime can be said to contain certain characteristics.