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Walsh power point_chapter 5
 

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    Walsh power point_chapter 5 Walsh power point_chapter 5 Presentation Transcript

    • Law, Justice, and Society: A Sociolegal Introduction Chapter 5 Crime and Criminal Law
    • Crime and Criminal Law
      • criminal law, aka substantive law, is the law of crimes
      • defined by statute
        • prescriptions
        • proscriptions
      • enforced by the state
      • primary purpose is to protect the public from harm by punishing harmful acts that have occurred and seeking to avoid harm by forbidding conduct that may lead to it
    • Crime and Criminal Law
      • “ . . . an intentional act in violation of the criminal law committed without defense or excuse, and penalized by the state ” (Tappan, 1947:100)
      • 1. An act in violation
      • 2. Of a criminal law for which
      • 3. A punishment is prescribed;
      • 4. The person committing this action must have intended to do so
      • 5. And to have done so without any legally acceptable defenses or justifications
      What Is Crime?
    • Crime and Criminal Law Crime as a Subset of Harmful Acts Core offenses All crimes All social harm All harms
    • Crime and Criminal Law
      • state and federal constitutions
      • state and federal statutes
      • common law
        • codified in most states mid-1800s
      • federal law is growing source of criminal law
      • statutes define elements (various parts) of a crime more specifically than common law
      Sources of Criminal Law
    • Crime and Criminal Law
      • substantive due process : there are limits to what conduct the law may seek to prohibit
      • forbids passage of laws that infringe on the rights of individuals
        • free speech
        • assembly
      • overbreadth doctrine : laws are unconstitutional when they fail to narrowly define the specific behavior to be restricted
      Limitations on the Criminal Law
    • Crime and Criminal Law
      • void for vagueness : laws are unconstitutional if they fail to clearly define the prohibited act and the punishment in advance
      • fair notice : letting people know what is and is not permitted
      • must not restrict due process: laws must be enforced fairly and non-arbitrarily
      • must not restrict equal protection: laws cannot restrict the rights of members of suspect classifications
      Limitations on the Criminal Law (cont.)
    • Crime and Criminal Law
      • cruel and unusual punishment : punishments must be proportional to the crime
      • ex post facto laws : people cannot be penalized for behavior that was not illegal at the time they acted; penalties cannot be increased after the crime has been committed
        • ex post facto laws do apply retroactively if they are beneficial
      • bills of attainder : laws that impose punishment without trial
      Limitations on the Criminal Law (cont.)
    • Crime and Criminal Law
      • elements must be present for criminal liability to attach
      • actus reus
      • mens rea
      • concurrence
      • causation
      • harm
      • make up the corpus delecti
      Elements of Criminal Offenses
    • Crime and Criminal Law
      • the guilty act; three forms:
      • voluntary bodily movements
      • an omission in the face of a duty to act
        • failure to perform a legal duty
        • failure to prevent serious harm when a special relationship exists
      • possession
        • if the person has some knowledge that his or her possession is illegal
      Actus Reus (Criminal Act)
    • Crime and Criminal Law
      • guilty mind; inferred from circumstances surrounding the criminal act
      • four levels:
      • 1. Purposeful
      • 2. Knowing
      • 3. Reckless
      • 4. Negligent
      • doctrine of transferred intent
      Mens Rea (Criminal Intent)
    • Crime and Criminal Law
      • the union of the criminal act and the criminal intent ( actus reus and mens rea )
      Concurrence
    • Crime and Criminal Law
      • the criminal act is the act that is the cause of the harm
      • two types:
      • 1. Factual cause: “but for” the actor’s conduct the harm would not have occurred
      • 2. Legal cause: consequences of an act that are not reasonably foreseeable to the actor (intervening causes) relieve the actor of some degree of criminal liability
      Causation
    • Crime and Criminal Law
      • the result of the act, the injury to another or to society
      Harm
    • Crime and Criminal Law
      • strict liability : imposes accountability without proof of criminal intent in situations where society deems it fair to do so
      • statutory rape
      • vicarious liability : (only civil law) the imputation of accountability from one person to another
      Liability Without Fault
    • Crime and Criminal Law
      • crimes that occur in preparation for an offense
      • three types:
        • attempt
        • solicitation
        • conspiracy
      Inchoate Crimes
    • Crime and Criminal Law
      • doctrine of complicity: more than one person may be held liable for criminal activity
      • requires that all criminal elements be present
      • common law recognizes four parties to a crime:
      • 1. Principles in the first degree
      • 2. Principles in the second degree
      • 3. Accessories before the fact
      • 4. Accessories after the fact
      Parties to Crime
    • Crime and Criminal Law
      • defense: a response by the defendant that allows him or her to avoid criminal liability
      • alibi: defendant asserts that he or she did not commit the crime
      • affirmative defenses: defendant admits that he or she committed the act but denies criminal liability
      • shifts both the burden of production and persuasion to the defense (preponderance of the evidence)
      Defenses to Criminal Liability
    • Crime and Criminal Law
      • defenses in which the defendant admits he or she is responsible for the act but claims that under the circumstances the act was not criminal
      • self-defense
      • consent
      • execution of public duties
      Justification Defenses
    • Crime and Criminal Law
      • use of force to repel an imminent, unprovoked attack in which a person reasonably believed that he or she was about to be seriously injured
      • may use only as much force as is necessary
      • retreat doctrine: a person must retreat rather than use deadly force if doing so is possible
      • castle doctrine: persons attacked in their home need not retreat
      • can also apply to the defense of others and property
      Self-defense
    • Crime and Criminal Law
      • persons may consent to suffer what otherwise would be an objectionable injury
      • consent must be voluntary, knowing, and intelligent
      Consent
    • Crime and Criminal Law
      • agents of the state are permitted to use reasonable force in the lawful execution of their duties
      Execution of Public Duties
    • Crime and Criminal Law
      • ones in which the defendant admits that what he or she did was wrong but claims that under the circumstances he or she is not responsible for improper conduct
        • duress
        • intoxication
        • age
        • insanity
      Excuse Defenses
    • Crime and Criminal Law
      • situations involving the threat of serious, imminent harm to oneself, where the act is less serious than the threatened harm
      • those forced to commit a crime in such circumstances do not act voluntarily
        • eliminates actus reus
        • eliminates mens rea
      Duress
    • Crime and Criminal Law
      • voluntary and involuntary
      • voluntary never leads to acquittal; may only mitigate
      • involuntary may work as a defense as the person is not responsible for his or her actions
      Intoxication
    • Crime and Criminal Law
      • persons below a certain age lack the capability to form mens rea
      Age
    • Crime and Criminal Law
      • impairs mens rea
      • mental illness and legal insanity are not the same
      • M’Naghten rule--right wrong rule
      • Durham test--product test
      • irresistible impulse test
      • substantial capacity test
      • GBMI
      Insanity
    • Crime and Criminal Law
      • it is claimed that the defendant’s due process rights were violated
      • double jeopardy, denial of speedy trial, use of illegally seized evidence
      • entrapment in one of two scenarios ( Sherman v. U.S. , 1958):
      • 1. The crime is the result of the “creative activity” of law enforcement
      • 2. The prosecutor cannot prove beyond a reasonable doubt that the defendant was “independently predisposed” to commit the crime
      Procedural Defenses
    • Crime and Criminal Law
      • crimes against the person
      • crimes against property
      • crimes against society
      • crimes against morality
      Categories of Crime
    • Crime and Criminal Law
      • homicide is the killing of another human being
        • what is a human being?
        • when is someone alive or dead?
        • what types of homicide deserve punishment?
      • three forms of criminal homicide:
        • murder
        • manslaughter
        • negligent homicide
      Homicide and Manslaughter
    • Crime and Criminal Law
      • common law: the killing of another person with malice aforethought
      • Model Penal Code: murder is a killing that occurs (1) purposefully, (2) knowingly, or (3) recklessly
      • first-degree murder: deliberate and premeditated
      • second-degree murder: any killing that is intentional but not premeditated or planned
      Murder
    • Crime and Criminal Law
      • voluntary
        • an intentional killing that occurs
          • under a mistaken belief that self-defense is needed
          • or in response to adequate persuasion while in the sudden heat of passion
      • involuntary
        • an unintentional killing that occurs as a result of a reckless act
      Manslaughter
    • Crime and Criminal Law
      • an unintentional killing in which the defendant should have known that he was creating a substantial risk of death by his conduct
      • such conduct deviated from the ordinary level of care owed to others
      Negligent Homicide
    • Crime and Criminal Law
      • an individual is held liable for an unintended killing that occurs during the commission of a dangerous felony
      • no requirement of intent to either kill or inflict serious harm
      Felony Murder
    • Crime and Criminal Law
      • direct harm to a person inflicted by the actor
      • include:
        • assault and battery
        • robbery
        • sexual offenses
        • child sexual abuse
      Assaultive Offenses
    • Crime and Criminal Law
      • common law:
        • assault: an attempt or a threat to inflict immediate harm
        • battery: an unjustified, offensive physical contact
      • modern assault and battery:
        • assault and battery have been merged as “assault”
      • aggravated assault: serious injury or assault with an item
      • assault accounts for 62.5 percent of all UCR Part I violent crimes
      Assault and Battery
    • Crime and Criminal Law
      • rape
        • common law: carnal knowledge by a man of a woman who is not his wife, forcibly and without her consent
        • modern day: eliminated marital rape exception, neutralized gender specificity, relaxed resistance requirements, and created rape shield laws during criminal court
      • child sexual abuse
      • death penalty cannot be used in rape cases, except in some states where capital punishment for raping children is allowed
      Sexual Offenses
    • Crime and Criminal Law
      • burglary
      • trespass
      • arson
      • theft
      • forgery and uttering
      • receiving stolen property
      Crimes Against Property
    • Crime and Criminal Law
      • “ the unlawful entry of a structure to commit a felony or theft” (FBI, 2005:45)
      • seventeenth century: the breaking and entering of the dwelling of another at night with the intention of committing a felony inside the dwelling
      • today burglary can occur during the day
      • not entry alone--must be unlawful entry accompanied by intent to commit another crime inside
      Burglary
    • Crime and Criminal Law
      • “ any willful or malicious burning or attempting to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.” (FBI, 2005:61)
      • first degree: burning of an occupied structure
      • second degree: burning of an unoccupied structure
      • third degree: burning of personal property
      Arson
    • Crime and Criminal Law
      • crimes against property (theft) are more common than crimes against the person
      • 88.3 percent of crimes reported to the police were property crimes (UCR, 2005)
      Theft Offenses
    • Crime and Criminal Law
      • “ the unlawful taking, leading, or riding away of the possession or constructive possession of another” (FBI, 2005:49)
      • larceny is graded depending on the method of taking and the value of the property taken
      • grand theft versus petty theft (felony and misdemeanor)
      Larceny/Theft
    • Crime and Criminal Law
      • “ the taking or attempted taking of anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or putting the victim in fear” (FBI, 2005:31)
      • often classified as a violent crime
      • extortion: a taking of property accomplished by the threat of future harm to person, property, or reputation
      Robbery
    • Crime and Criminal Law
      • forgery: false legal writing or altering of an existing legal document
      • uttering: passing of a false legal document to another, with knowledge of its falsity and the intent to defraud
      Forgery and Uttering
    • Crime and Criminal Law
      • created to deal with fences--persons who deal in stolen goods
      • a person must be in possession of property that she knows to be or has reason to believe was stolen
      • must have the intent to permanently deprive the rightful owner
      Receiving Stolen Property
    • Crime and Criminal Law
      • crimes against public order are those in which the injury is to the peace and order of society
        • disorderly conduct
        • unlawful assembly
        • vagrancy
      • crimes against morality are those in which the moral health of society is injured
        • adultery
        • prostitution
        • obscenity
      Crimes Against Public Order and Morality