Criminal law defines criminal conduct, specifies punishments, and regulates investigation and prosecution of suspected criminals. A crime requires both a wrongful act and criminal intent. Crimes are considered wrongs against society and are prosecuted by the government as the representative of society. The criminal law originated from primitive tribal customs and has developed through various legal codes, common law, and statutory law.

1. Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 1: Fundamentals of Criminal Law and Procedure

2. What is a Crime? A violation of the criminal law for which a party can be prosecuted and punished by the government. Nullen crimen, nulla poena, sine lege . (“There can be no crime and no punishment without law.”)

3. What is Criminal Law? Criminal law is the branch of the law that … defines criminal conduct specifies criminal punishments regulates the investigation, prosecution and punishment of suspected criminals

4. Elements of a Crime Under the traditional common-law definition of a crime there must be: a wrongful act ( actus reus ) accompanied by criminal intent ( mens rea ) The criminal law requires a wrongful act because it is concerned with infliction of harm and not simply with someone’s evil thoughts. The law normally requires criminal intent because we don’t normally punish people for accidents.

5. Crimes are Wrongs against Society Our legal system regards crimes not merely as wrongs against particular victims but as offenses against the entire society. There does not have to be an individual victim for there to be a crime. Because crime is an injury against society, it is government, as society’s legal representative, that brings charges against persons accused of committing crimes.

6. Societal Interests Served by the Criminal Law Protection of Persons against Violence Protection of Property and Economic Interests Maintenance of Standards of Decency Public Health and the Natural Environment Public Peace, Order, and Safety National Security Honest and Efficient Administration of Government and the Justice System

7. Criminal Responsibility The criminal law rests on the idea that individuals are responsible for their actions and must be accountable for them. This is the essential justification and rationale for imposing punishments on persons convicted of crimes. Society recognizes that certain individuals lack the capacity to appreciate the wrongfulness of their conduct. Factors beyond individuals’ control may lead them to commit criminal acts. In such instances the law exempts individuals from responsibility. Moreover, there are situations in which acts that would otherwise be crimes may be justified. The best example of this is committing a homicide in self-defense.

8. Parties to a Criminal Case The principal parties in a criminal case are: the prosecution (i.e., the government) the defendant (i.e., the accused person)

9. The Role of the Crime Victim Crime victims play a very limited role in the process of prosecution. Even where a crime victim files a complaint with a law enforcement agency that leads to prosecution, once the prosecution begins, the victim’s participation is primarily that of being a witness. Victims often complain that the system is insensitive to their interests.

10. Felonies and Misdemeanors The law distinguishes between serious crimes, known as felonies, and less serious offenses, called misdemeanors. The distinction between felonies and misdemeanors is that the former carry terms of incarceration for a year or more, whereas the latter usually are punishable by shorter terms of confinement.

11. Mala in se offenses Universal wrongs Murder Arson Rape Robbery Theft Burglary

12. Mala Prohibita Offenses Traffic offenses Drug and alcohol offenses Environmental crimes Regulatory offenses Public indecency

13. Crimes Distinguished from Other Legal Wrongs Torts—injuries inflicted on others intentionally or through negligence Remediable through civil suits for damages Regulatory offenses—noncriminal violations of government regulations Sanction is typically payment of a fine

14. Origin of the Criminal Law Primitive societies—no written law Ancient legal codes Code of Hammurabi Roman Law Ecclesiastical and scriptural authorities English common law Parliamentary enactments (statutes)

15. “ Crimes” in Primitive Societies Wrongs against the tribe, such as blasphemy or betrayal, were met with group sanctions including ridicule and hostility, and, the tribe members thought, with the wrath of the gods. Wrongs against individuals, such as murder, theft, adultery, or failure to repay a debt, were avenged by the family of the victim, often in actions against the family of the wrongdoer. Revenge of this kind was based on tribal custom, which became a major component of early legal systems.

16. The Code of Ur-Nammu Sumer, 2100-2050 BC “ If a man commits a murder, that man must be killed.” “ If a man commits a robbery, he will be killed.” “ If a man commits a kidnapping, he is to be imprisoned and pay 15 shekels of silver.” “ If a man has cut off another man’s foot, he is to pay ten shekels.” “ If a man knocks out a tooth of another man, he shall pay two shekels of silver.”

17. Code of Hammurabi Babylonia, 1700 BC “ If a man put out the eye of another man, his eye shall be put out.” “ If a man knock out the teeth of his equal, his teeth shall be knocked out.”

18. The Lex Talionis in Mosaic law 23 And if any mischief follow, then thou shalt give life for life, 24 Eye for eye, tooth for tooth, hand for hand, foot for foot, 25 Burning for burning, wound for wound, stripe for stripe. --Exodus 21:23-25

19. Roman Law The most significant example of ancient law is Roman law, which influenced most of the legal systems of the world. The Twelve Tables of Rome (5th century B.C.) and their successors, including the Justinian Code, led to legal codes that provide the main source of law in much of modern Europe, South America, and elsewhere. Napoleonic Code of 1804

20. Natural Law Law that is presumed to flow from man’s “natural” condition, that is the social condition existing prior to the emergence of government. In De Republica , the ancient Roman orator Cicero (106-43 B.C.) defined natural law as “right reason in agreement with nature.” In Summa Theologica , Thomas Aquinas (1224-1274) viewed natural law as the “participation in the Eternal Law by rational creatures.” The 17th century Dutch jurist Hugo Grotius defined natural law as rules of human conduct that can be discovered solely by the use of reason.

21. English Common Law William the Conqueror (1066-87) strengthened the royal courts established by his Anglo-Saxon predecessors. King Henry I (1100-35), dispatched royal judges to preside in county courts. Henry II (1154-89) dispatched judges to travel throughout the kingdom, taking jurisdiction in cases formerly under the province of feudal and local courts. The judges settled disputes based on the customs of the people and the well-established principles of feudal society. Out of the decisions of these courts grew a law common to the entire kingdom, hence the term “common law.”

22. Civil and Criminal Law Early on the common law developed a distinction between civil law and criminal law. The criminal law sought to punish people for offenses against the Crown; the civil law provided remedies for essentially private wrongs. Criminal prosecutions were brought by the Crown in cases styled, for example, Rex v. Jones or Regina v. Smith In criminal cases the sovereign was always the plaintiff, that is, the party initiating the legal action. The accused offender was always the defendant, the party against whom legal action has been brought.

23. The Common-Law (Judicial) Felonies Murder Manslaughter Mayhem Arson Burglary Robbery Larceny Rape

24. Penalties for Common-Law Felonies Death Dismemberment Forfeiture

25. The Role of Parliament Parliament came to play a significant role in the formation of the law by adopting statutes that revised and supplemented the common law. Example: the offense of statutory rape originated in an act of Parliament in the 13 th century!

26. Reception of the Common Law in America Common Law in Effect in the Colonies American Revolution (1776) Reception statutes Congress did not adopt the common law Common Law Modified by State Legislation

27. Development of the Criminal Law American criminal laws basically came from the English common law as it existed in 1776. Of the fifty states in the Union, Louisiana is the only one whose legal system is not based on the common law. Rather, it is based on the Napoleonic Code of France. The federal government did not adopt the common law of crimes. From the outset, statutes passed by Congress defined federal crimes.

28. Codification of the Criminal Law U.S. Code Tennessee Code Colorado Revised Statutes Code of Iowa Consolidated Laws of New York South Dakota Codified Laws etc.

29. Codification of the Criminal Law United States Code The codification by subject matter of the general and permanent laws of the U.S. It is divided by broad subjects into 50 titles. Title 18 Crimes and Criminal Procedure

30. Tennessee’s criminal code was revised and modernized in 1989. Title 39 of the Tennessee Code Annotated (T.C.A.) General offenses Offenses against the person Offenses against property Offenses against the family Offenses against the administration of government Offenses against the public health, safety and welfare

31. The Role of Courts in Developing the Criminal Law Statutory interpretation Judicial review “ It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” Chief Justice John Marshall, Marbury v. Madison (US Sup Ct, 1803)

32. The Role of Courts in Developing the Criminal Law Statutory interpretation What did the legislature mean? Constitutional interpretation What does the Constitution mean? In rendering interpretations of the law, courts follow precedent, in keeping with the common-law doctrine of stare decisis.

33. Substantive and Procedural Law Substantive criminal law defines crimes and establishes penalties. Procedural criminal law regulates the enforcement of the substantive law, the determination of guilt, and the punishment of those found guilty of crimes.

34. Constitutional Considerations Separation of Powers Federalism Constitutional Limitations on the Enactment and Enforcement of Criminal Laws Rights of the Accused Due Process of Law

35. Due Process of Law The single most important legal concept in the realm of criminal procedure. Arguably the most important concept in American law!

36. The Idea of Due Process is Deeply Rooted in English Common Law “ No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.” Magna Carta (1215)

37. Due Process is Required by all Fifty State Constitutions “… [N]o man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” Tennessee Constitution, Art. I, Sec. 8

38. Due Process Required by State Constitutions (cont.) “ No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land … . ” New York Constitution, Art. I, Sec. 1

39. Due Process Required by the Federal Constitution “ No person shall be … deprived of life, liberty, or property, without due process of law….” U.S. Constitution, Amendment V “… nor shall any State deprive any person of life, liberty, or property, without due process of law….” U.S. Constitution, Amendment XIV, Sec. 1

40. Procedural Due Process Refers to procedural protections that apply to any government action that deprives an individual of life, liberty, or property. In cases where an individual has claimed a violation of due process rights, the courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" that individual.

41. Substantive Due Process Under the concept of substantive due process , government is barred from enforcing policies that are irrational, unfair, unreasonable, or unjust, even if such policies do not run counter to other specific constitutional prohibitions. It may be broadly defined as the constitutional guarantee that no person shall be arbitrarily deprived of his life, liberty or property. The essence of substantive due process is protection from arbitrary and unreasonable action.

42. The Vagueness Doctrine The law must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” “ A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned v. City of Rockford (U.S. Supreme Court, 1972)

43. Essential Elements of Procedural Due Process Timely notice The opportunity to be heard The opportunity to defend oneself in a fair and orderly proceeding

44. Classic Elements of Procedural Due Process in Criminal Cases Protection from unwarranted prosecution Protection against unlawful confinement Presumption of innocence Burden of proof rests with the prosecution Reasonable doubt standard of proof

45. Standards of Criminal Justice and Judicial Federalism Today, with few exceptions, policies of state and local governments are subject to judicial scrutiny under the same standards that the Bill of Rights imposes on the federal government. Still, under our federal system, state courts may interpret their respective state constitutions as granting higher levels of protections to civil liberties than are granted by the U.S. Constitution as interpreted by the federal courts.

46. Briefing Cases The name of the case and the date of the decision The essential facts of the case The key issue(s) of law involved (or those applicable to a point of law being considered) The holding of the court A brief summary of the court’s opinion, especially as it relates to key issue(s) in the case Summaries of concurring and dissenting opinions, if any A statement commenting on the significance of the decision

47. The Criminal Process Investigation / Search and Seizure Arrest, Interrogation and Identification Procedures Formal Charging Process Plea Bargaining Trial Sentencing Appeal

48. Criminal Sanctions Death Penalty Incarceration Monetary Fines Probation Restitution Pretrial Diversion