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Law, Justice, and Society:
A Sociolegal Introduction
Crime and Criminal Law
Razulaw.wordpress.com
Crime and Criminal Law
Criminal law, a.k.a. 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
“[A]n 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
Mala in se
All crimes
Mala in se and mala prohibita
All social harm
Not regulated by
criminal law
All harms
Crime and Criminal Law
Mala in se: Crimes that are considered bad in
of themselves
 Part I offenses in the UCR are the major mala in se
crimes
Mala Prohibita: Crimes that are considered
crimes because we have placed restrictions on
them
 Listed in Part II of the UCR along with some other less
serious mala in se offenses
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 which 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 delicti
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 their
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
2 types:
1. Factual cause: “but for” the actor’s
conduct the harm would not have occurred
2. Legal cause: consequences of an act
which 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—where 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 is a response by the defendant
which allows them to avoid criminal liability
Alibi: defendant asserts that they did not
commit the crime
Affirmative defenses: defendant admits that
they committed the act, but deny 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
A defense in which the defendant admits they
are 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 they reasonably believed that
they were about to be seriously injured
May only use 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 content 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
One in which the defendant admits that what
they did was wrong but that under the
circumstances they are not responsible for
their 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 their 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 mpulse test
Substantial capacity test
GBMI- from Insanity Defense Reform Act of
1984
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 means the killing of another human
being
 what is a human being?
 When is someone alive or dead?
 What types of homicide deserve punishment?
3 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 which
occurs 1) purposefully, 2) knowingly, or 3)
recklessly
First-degree murder: deliberate and premeditated
Second-degree murder: any killings that are
intentional but not premeditated or planned
Murder
Crime and Criminal Law
Voluntary
 an intentional killing which 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 occurs as a result of a reckless
act
Manslaughter
Crime and Criminal Law
An unintentional killing in which the defendant
should have known that they were creating a
substantial risk of death by their 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 which 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
Account 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
“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
Burglary
Trespass
Theft
Crimes Against Property
Crime and Criminal Law
“[T]he 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
Crimes against property (theft) are more common
than crimes against the person
88.3 percent of crimes reported to the police
were property crimes (2005 UCR)
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 method of
taking and the value of the property taken
Grand theft vs. 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
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

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Crime and criminal law

  • 1. Law, Justice, and Society: A Sociolegal Introduction Crime and Criminal Law Razulaw.wordpress.com
  • 2. Crime and Criminal Law Criminal law, a.k.a. 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 “[A]n 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 Mala in se All crimes Mala in se and mala prohibita All social harm Not regulated by criminal law All harms
  • 5. Crime and Criminal Law Mala in se: Crimes that are considered bad in of themselves  Part I offenses in the UCR are the major mala in se crimes Mala Prohibita: Crimes that are considered crimes because we have placed restrictions on them  Listed in Part II of the UCR along with some other less serious mala in se offenses
  • 6. 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
  • 7. 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
  • 8. 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.)
  • 9. 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 which 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.)
  • 10. Crime and Criminal Law Elements must be present for criminal liability to attach Actus reus Mens rea Concurrence Causation Harm Make up the corpus delicti Elements of Criminal Offenses
  • 11. 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 their possession is illegal Actus Reus (Criminal Act)
  • 12. 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)
  • 13. Crime and Criminal Law The union of the criminal act and the criminal intent (actus reus and mens rea) Concurrence
  • 14. Crime and Criminal Law The criminal act is the act that is the cause of the harm 2 types: 1. Factual cause: “but for” the actor’s conduct the harm would not have occurred 2. Legal cause: consequences of an act which are not reasonably foreseeable to the actor (intervening causes) relieve the actor of some degree of criminal liability Causation
  • 15. Crime and Criminal Law The result of the act, the injury to another or to society Harm
  • 16. 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
  • 17. Crime and Criminal Law Crimes that occur in preparation for an offense Three types:  attempt  solicitation  conspiracy Inchoate Crimes
  • 18. Crime and Criminal Law Doctrine of complicity—where 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
  • 19. Crime and Criminal Law Defense is a response by the defendant which allows them to avoid criminal liability Alibi: defendant asserts that they did not commit the crime Affirmative defenses: defendant admits that they committed the act, but deny criminal liability Shifts both the burden of production and persuasion to the defense (preponderance of the evidence) Defenses to Criminal Liability
  • 20. Crime and Criminal Law A defense in which the defendant admits they are responsible for the act, but claims that under the circumstances the act was not criminal Self-defense Consent Execution of public duties Justification Defenses
  • 21. Crime and Criminal Law Use of force to repel an imminent, unprovoked attack, in which they reasonably believed that they were about to be seriously injured May only use 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
  • 22. Crime and Criminal Law Persons may content to suffer what otherwise would be an objectionable injury Consent must be voluntary, knowing, and intelligent Consent
  • 23. 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
  • 24. Crime and Criminal Law One in which the defendant admits that what they did was wrong but that under the circumstances they are not responsible for their improper conduct  duress  intoxication  age  insanity Excuse Defenses
  • 25. 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
  • 26. 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 their actions Intoxication
  • 27. Crime and Criminal Law Persons below a certain age lack the capability to form mens rea Age
  • 28. 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 mpulse test Substantial capacity test GBMI- from Insanity Defense Reform Act of 1984 Insanity
  • 29. 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
  • 30. Crime and Criminal Law Crimes against the person Crimes against property Crimes against society Crimes against morality Categories of Crime
  • 31. Crime and Criminal Law Homicide means the killing of another human being  what is a human being?  When is someone alive or dead?  What types of homicide deserve punishment? 3 forms of criminal homicide:  murder  manslaughter  negligent homicide Homicide and Manslaughter
  • 32. Crime and Criminal Law Common law: the killing of another person with malice aforethought Model Penal Code: murder is a killing which occurs 1) purposefully, 2) knowingly, or 3) recklessly First-degree murder: deliberate and premeditated Second-degree murder: any killings that are intentional but not premeditated or planned Murder
  • 33. Crime and Criminal Law Voluntary  an intentional killing which 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 occurs as a result of a reckless act Manslaughter
  • 34. Crime and Criminal Law An unintentional killing in which the defendant should have known that they were creating a substantial risk of death by their conduct Such conduct deviated from the ordinary level of care owed to others Negligent Homicide
  • 35. Crime and Criminal Law An individual is held liable for an unintended killing which occurs during the commission of a dangerous felony No requirement of intent to either kill or inflict serious harm Felony Murder
  • 36. 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
  • 37. 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 Account for 62.5 percent of all UCR Part I violent crimes Assault and Battery
  • 38. 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
  • 39. 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
  • 40. Crime and Criminal Law Burglary Trespass Theft Crimes Against Property
  • 41. Crime and Criminal Law “[T]he 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
  • 42. 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 (2005 UCR) Theft Offenses
  • 43. 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 method of taking and the value of the property taken Grand theft vs. petty theft (felony and misdemeanor) Larceny/Theft
  • 44. 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
  • 45. 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