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Criminal Law

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Criminal law is comprised of rules and statutes intended to dictate parameters of conduct that will prevent harm to society. Criminal law differs from criminal procedure. Criminal law is concerned with defining crimes and setting punishment, while criminal procedure refers to the process by which those lawsare enforced. For example, substantive criminal law is used to determine whether someone has committed arson. Criminal procedure guides the prosecution of the arsonist, from evidence gathering to trial and beyond. Criminal procedure encompasses constitutional protections such as the right to be free from unreasonable searches and seizures, the right to counsel, the right against self-incrimination, and the right to trial by jury.
In England criminal law arose from case law, rather than from codified laws.Known as part of the common law, these rules formed the foundation of U.S. criminal laws. Some crimes are still defined by their common law meanings, butmuch of this common law has been codified in statutes. Other crimes, such asembezzlement and receiving stolen property, are wholly statutory creations.
The Necessary and Proper Clause of the Constitution grants Congress the authority to denominate certain conduct illegal. States may make laws prohibitingand punishing certain acts, so long as the law does not contravene the U.S. Constitution or state constitutions, and so long as the conduct prohibited isreasonably related to protecting the welfare and safety of society. Municipalities may also designate illegal behavior, based upon limited powers delegated to them by the state legislature.
Categories of Criminal Conduct
Under federal law and most state statutes, a felony is a crime punishable bydeath or imprisonment for more than one year. Felonies are usually divided into several classes, grouped by perceived severity and applicable punishment.Misdemeanor offenses are less serious than felonies. They are generally punishable by nonpenitentiary confinement for less than one year, by imposition ofa fine, or both imprisonment and fine. Petty offenses are typically crimes with potential imprisonment not to exceed six months, a fine of not more than$500, or both. If a violation of a statute provides only for the imposition of a fine, the law is called an infraction. Infractions, such as traffic and parking violations, are generally not considered part of criminal law.
Criminal conduct has traditionally been divided into two broad categories: crimes against the person and property crimes. Crimes against the person include murder, battery, assault, rape, kidnapping, and false imprisonment. Property crimes include larceny, arson, criminal trespass, criminal mischief, and burglary, to name a few. Modern-day categories often group statutes according to: 1) those that affect public order, health, and morals; 2) offenses involving trade, business and professions; and 3) offenses against the family.
Elements of a Crime: Mens Rea and Actus Reus
Most crimes consist of two broad elements: mens rea and actus reus. Mens rea means to have "a guilty mind." The rationale behind therule is that it is wrong for society to punish those who innocently cause harm. Actus reus literally means "guilty act," and generally refers to anovert act in furtherance of a crime. Requiring an overt act as part of a crime means that society has chosen to punish only bad deeds, not bad thoughts.
To constitute criminal behavior, the actus reus and the mens rea must occur simultaneously. For example, suppose John Doe shoots Bob Roe with the intent to kill, but misses completely. Doe later accidentally runs overRoe, resulting in Roe's death. Doe is not guilty of murder.
Different crimes require different degrees of intent. For example, to prove larceny, the prosecution must establish that the defendant intentionally tookproperty to which he knows he is not entitled, intending to deprive the ownerof possession permanently. Negligent homicide, on the other hand, involves thoughtlessness, inadvertence, or inattention in a person's duty to exercise due care toward others. A drunk driver who kills another is often charged withcriminal negligent homicide.
Specific intent and general intent are other terms used to describe a person's state of mind. General intent means the intent to do something that the lawprohibits; the prosecution does not need to establish that the defendant actually intended the precise result. Specific intent designates a special element above and beyond the actus reus, of the crime, and generally signifies an intentional or knowing state of mind. For example, in the case of larceny, the prosecution must establish the defendant's intent to steal the property. Statutes frequently employ terminology such as purposeful, knowing, reckless, or negligent to describe differing gradations of intent.
Intent is irrelevant in proving a strict liability crime. For a strict liability crime, a prosecutor need only prove that the forbidden act occurred. Statutory rape is a strict liability crime. Only the actus reus, a defendant's non-forcible sexual intercourse with a minor, is needed to establish criminal responsibility. The fact that a defendant might have made an honest andreasonable mistake as to the age of the victim is not a defense. Restrictions on the sale of alcohol are also strict liability offenses.
Intent on the part of the defendant is also often lacking in certain vicarious liability offenses. Vicarious liability offenses occur where a defendant'scriminal liability is predicated upon the actions of another, often based upon an employer/employee relationship. For example, a bartender who serves alcohol to minors may, by his actions, make the bar owner criminally responsible.This may be true whether the bartender was acting on orders, or deliberatelydisobeying orders.
Actus reus requires a voluntary act. An epileptic who strikes anotherduring a seizure has not committed a battery. On the other hand, an epilepticwho knows he should not drive but does and causes injury, may be guilty of reckless criminal behavior because he created the dangerous situation. Moreover, a failure to act may also constitute a guilty act. Failure to fill out anincome tax return is a violation of law. A lifeguard who allows a child to drown would almost certainly face criminal charges.
A person may escape criminal responsibility by successfully tendering a legally recognized defense to conduct that is otherwise criminal. Some defenses, such as insanity, infancy, and intoxication, are based on the defendant's lackof capacity to be held legally responsible. Other defenses such as duress, coercion, or necessity, stem from undue pressure or unusual circumstances outside of a defendant's control. An entrapment defense serves as a limitation onthe powers of the government to manufacture criminal behavior.
An insane person may be unable to form the requisite intent necessary to commit a crime. Over the years a number of different approaches have been devisedto determine when criminal intent is negated by insanity. The M'Naghten testis named for a delusional Englishman who believed the prime minister was trying to kill him; he mistakenly killed the prime minister's secretary instead.The psychotic M'Naghten was acquitted by an English jury in 1843 based on his insanity defense. The test requires that "at the time of the committing ofthe act, the party accused was labouring under such a defect of reason, froma disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."
A limited number of jurisdictions employ the irresistible impulse test to determine sanity for purposes of criminal liability. If a person's disease of mind prevents him from controlling his conduct, he may be found not guilty by reason of insanity. This defense may be used even where a person was able to distinguish between right and wrong at the time of the offense. For example, if an otherwise-sane father kills the person who molested his child, the father might claim that he was unable to control his actions because of his outrage at the molester's heinous conduct. The irresistible impulse defense fell into disfavor following John Hinckley's acquittal by reason of insanity for his1981 attempt to assassinate President Ronald Reagan.
Also used in some jurisdictions is the Model Penal Code test of insanity (first used at large in 1960). It provides that a person is not responsible for his conduct if at the time of the conduct the he lacks the substantial capacity, because of a mental disease or defect, either to appreciate the criminality or wrongfulness of the conduct or to conform the conduct to the requirements of the law. In 1984 in response to Hinckley's acquittal, Congress passed the Insanity Defense Reform Act. The Insanity Act employs language similar to the Model Penal Code test.
Trial must be rescheduled if a defendant is insane at the time of trial. TheSupreme Court has ruled that a defendant must have the present ability to consult with a lawyer with a reasonable degree of rational understanding, and must have a rational and a factual understanding of the proceeding against him.A convict who goes insane after imposition of a death sentence is entitled to a stay of execution until adjudged sane.
Infancy is a lack of legal capacity to be held responsible for a crime due tothe age of the perpetrator. At common law, a child under the age of seven was presumed incapable of committing a crime. Between ages seven and 14, a rebuttable presumption existed that a juvenile was incapable of committing a crime. This presumption weakened progressively as the child approached age 14. Presently, most states define juveniles as persons under the age of 18, although a some states denominate 17 or 16. Juvenile cases are handled under a different system than adult criminal cases. After a certain age, typically set between 13 and 15, a juvenile who commits a serious crime may have his case transferred to adult court and tried as an adult.
Voluntary intoxication caused by drugs or alcohol is permitted as a defense only in very rare instances. It may be allowed as a defense in some situationswhere specific intent is required; the intoxication may negate the requisitemental state required to establish the offense. Involuntary intoxication, where a defendant is forced to take intoxicants or imbibes without knowledge orreason to know of the intoxicating character, is treated much like an insanity defense.
Duress and coercion are defenses seldom used. These ask the court to treat analleged perpetrator as a victim, as when a bank robber says he had to do itor his partner would have killed him. A successful defense usually requires athreat of death or serious bodily harm to oneself (or sometimes to a close relative); most states do not recognize duress or coercion to excuse murder charges. Patricia Hearst unsuccessfully invoked this defense in a widely-followed case during the 1970s. Hearst, daughter of wealthy newspaper owners, was kidnapped by social revolutionaries, then later participated with her captorsin an armed bank robbery.
Necessity differs from coercion in that it provides an excuse from criminal liability where, in order to protect life or limb, a person reasonably has noother acceptable choice than to commit a criminal act. For example, a defendant who is fleeing a gun-toting criminal may invoke a defense of necessity ifwhen fleeing, the defendant had to break and enter into the dwelling of another.
Entrapment is a defense developed to prevent government officials from inducing a person to commit a crime, where that person was not previously disposedto commit the crime. Entrapment as a defense does not rule out some deceptionon the part of the police. A person who was planning or willing to commit acrime may generally not invoke an entrapment defense where officials merely create an opportunity for commission of the crime.
A person may use the amount of force reasonably necessary to prevent immediate unlawful imposition of harm to oneself. In addition, a defendant generallymust not be the provoker. Deadly force may be used to repel someone when it reasonably appears necessary to prevent imminent death or serious injury. Somejurisdictions require a defendant to retreat before using deadly force, if it can be done safely.
Inchoate or Prepatory Crimes: Attempt, Conspiracy, and Aiding and Abetting
Attempt was not recognized in very early common law, but now is universally recognized. It means a substantial but unsuccessful effort to commit a particular crime. It usually requires one or more affirmative steps toward the commission of a crime beyond mere preparation. Attempt typically warrants less severe punishment than would the completed crime.
Conspiracy is an agreement between two or more persons to commit an unlawfulact or a lawful act which becomes unlawful when done by the concerted actionof the conspirators. Some jurisdictions require an overt act in furtherance of the crime to constitute a conspiracy; other jurisdictions hold that the conspiracy agreement constitutes the actus reus. Conspiracy is separate and distinct from any underlying crime. A defendant may be guilty of arson andconspiracy to commit arson if she conspires with another to commit the crimeand then does so.
An aider and abettor helps, assists, or facilitates the commission of a crimeby words or conduct. An aider and abettor need not be present when the crimeis committed, although she must share the criminal intent of the principal (the chief perpetrator). An aider and abettor who is present during commissionof a crime may be charged as a principal; otherwise he may be charged as anaccomplice before or after the fact.
Limitations on Criminal Laws
Ex post facto laws are laws that work to retroactively make conduct previously legal illegal, retroactively increase a punishment, retroactively change the rules of evidence in a criminal case, or retroactively alter the definition of a crime. Ex post facto laws are prohibited by the Constitution. The framers believed it was imperative to provide citizens with some idea of what behavior could be punished, and that it was important to prevent tyranny by those in power.
Criminal statutes also need to be understandable to persons of ordinary intelligence. If a reasonable person cannot determine what a law is trying to command or prohibit, that law will be struck down as being void for vagueness. The doctrine of vagueness comes from the Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution. Laws prohibiting vagrancy have sometimes come under attack as being void because of language that fails to provide an adequate warning as to the type of conduct that might offend the law.
The Eighth Amendment's prohibition against cruel and unusual punishment prohibits punishment which is cruelly disproportionate to the crime. The Supreme Court has ruled that a sentence of 15 years of hard labor was a constitutionally prohibited punishment for a pubic official who falsified a minor document.Likewise, a death sentence for a convicted rapist has also been ruled to constitute cruel and unusual punishment.

Further Readings

  • Loewy, Arnold H. Criminal Law in a Nutshell. St. Paul, MN: West Publishing Co. 1987.
  • West's Encyclopedia of American Law (various sections). St. Paul,MN: West Publishing Co. 1997.
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