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Walsh power point_chapter 5


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  • 1. Law, Justice, and Society: A Sociolegal Introduction Chapter 5 Crime and Criminal Law
  • 2. 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
  • 3. 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?
  • 4. Crime and Criminal Law Crime as a Subset of Harmful Acts Core offenses All crimes All social harm All harms
  • 5. 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
  • 6. 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
  • 7. 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.)
  • 8. 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.)
  • 9. 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
  • 10. 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)
  • 11. 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)
  • 12. Crime and Criminal Law
    • the union of the criminal act and the criminal intent ( actus reus and mens rea )
  • 13. 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
  • 14. Crime and Criminal Law
    • the result of the act, the injury to another or to society
  • 15. 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
  • 16. Crime and Criminal Law
    • crimes that occur in preparation for an offense
    • three types:
      • attempt
      • solicitation
      • conspiracy
    Inchoate Crimes
  • 17. 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
  • 18. 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
  • 19. 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
  • 20. 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
  • 21. Crime and Criminal Law
    • persons may consent to suffer what otherwise would be an objectionable injury
    • consent must be voluntary, knowing, and intelligent
  • 22. 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
  • 23. 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
  • 24. 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
  • 25. 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
  • 26. Crime and Criminal Law
    • persons below a certain age lack the capability to form mens rea
  • 27. 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
  • 28. 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
  • 29. Crime and Criminal Law
    • crimes against the person
    • crimes against property
    • crimes against society
    • crimes against morality
    Categories of Crime
  • 30. 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
  • 31. 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
  • 32. 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
  • 33. 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
  • 34. 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
  • 35. 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
  • 36. 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
  • 37. 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
  • 38. Crime and Criminal Law
    • burglary
    • trespass
    • arson
    • theft
    • forgery and uttering
    • receiving stolen property
    Crimes Against Property
  • 39. 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
  • 40. 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
  • 41. 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
  • 42. 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)
  • 43. 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
  • 44. 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
  • 45. 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
  • 46. 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