Chapter 3Criminal Law: Substance and Procedure

Definitions

Substantive criminal law: refers to a type of law that defines crime

and punishment (penal codes)

Procedural Criminal law: the rules designed to implement

substantive law (code of criminal procedures)

Civil law: rule of law governing phases of human enterprise,

including commerce, family life, property transfer and regulation of

interpersonal conflict.

Historical Development of Criminal Law

Babylonian Code of Hammurabi (2000 B.C.)

Mosaic Code of the Israelites (1200 B.C.)

Roman Twelve Tables (451 B.C.)

Justinian’s Corpus Juris Civilis

German Wergild

Historical Development of Criminal Law (cont.)

Common Law: Incorporated customs, traditions, practices, and

common behavior into a standardized law.

Stare Decisis: To stand by decided cases. Decisions in earlier

cases become the standard by which subsequent similar cases are

judged.

Mala in se: crimes that are inherently evil (i.e. murder)

Mala prohibita: prohibited wrongs (failure to pay taxes)

Sources of Criminal Law

Common law, statutes, and case decisions

Administrative rules and regulations

Constitutional laws

Sources of Criminal Law (cont.)

Ex Post Facto Laws

Punish an act committed before the passage of the law

criminalizing it.

Makes a crime more serious and authorizes greater punishment

than the law existing at the time of the act.

Makes it easier to convict the offender than the law existing at the

time of the act.

Crimes and Classifications

Felony: Serious crime punishable by imprisonment in a penitentiary

or death.

Misdemeanor: A less serious crime punishable by fine or

imprisonment for less than a year.

Infraction: Violations of a city or county ordinance normally punished

by a fine. Some states consider infractions to be civil rather than

criminal.

Legal Definition of a Crime

Actus reus

An illegal act.

A failure to act when the law requires you to do so.

Act must be voluntary.

Negligent acts can result in criminal liability.

Legal Definition of a Crime (cont.)

Mens rea –

Guilty mind or intent. The mental element of a crime.

Intent is implied if the results of an act are certain to occur.

Crimes may require different levels of intent ranging from

purposely to negligently.

Legal Definition of a Crime (cont.)

Strict liability offenses:

Illegal acts that do not require a showing of intent.

Examples:

Speeding.

Serving a minor alcohol because he/she looked older.

Criminal Defenses

A person can commit an act that would ordinarily be a crime but they

are not held criminally liable because there is a recognized defense

or justification for their act under the law.

Criminal Defenses (cont.)

Ignorance or Mistake

As a general rule ignorance of the law is not a defense.

Mistake of fact may be a defense if it shows a lack of intent.

Taking someone else’s coat because you believed it was

yours.

Criminal Defenses (cont.)

Insanity

Relies on a legal rather than medical definition.

Defendants who are legally insane are found not guilty by reason

of insanity.

Criminal Defenses (cont.)

Intoxication

Voluntary intoxication is not normally a defense.

Involuntary Intoxication may be a defense.

Criminal Defenses (cont.)

Age

A child is not criminally responsible for actions committed at an

age that precludes a full realization of gravity of certain types of

behavior.

Under the common law a child under the age of seven was

presumed to be incapable of forming intent.

Today state statutes establish this age.

Criminal Defenses (cont.)

Consent

A person may not be convicted of a crime if the victim consented

to the act.

A forcible rape does not occur if person consents to sexual

relations.

A statutory rape does occur, even if the parties consent

because the law assumes not all persons are capable of

giving consent.

Criminal Defenses (cont.)

Self-defense

Must have acted under reasonable belief that he/she was in

danger of death or great harm, and had no means of escape

May only use such force as is reasonable necessary to prevent

personal harm

Criminal Defenses (cont.)

Entrapment

Police may provide someone with the opportunity to commit a

crime.

May not induce someone to commit a crime they otherwise would

not do through the use of traps, decoys, and deception.

Criminal Defenses (cont.)

Duress

Person is forced to commit a crime in order to prevent death or

serious physical harm to themselves or someone else.

Generally may not claim duress as a defense or justification to

the crime of murder.

Criminal Defenses (cont.)

Necessity

In order to prevent a greater harm a crime is committed. Must be

able to show that any reasonable person would have done so.

Breaking into a closed store to call an ambulance.

Generally does not apply to social or moral agendas.

Shutting down nuclear power plants or abortion clinics.

Reforming Criminal Law

The federal and state governments consistently make efforts to

reform the law to ensure it reflects the needs of society.

Advances in technology or new social factors require creation of

additional laws.

Changes in society may dictate decriminalization of certain acts.

Defenses and justifications undergo similar changes.

Constitutional Criminal Procedure

Substantive criminal law primarily defines crimes.

Procedural criminal law consists of the rules and procedures that

govern the pretrial processing of criminal suspects and the conduct

of criminal trials.

Main source of procedural law is the Bill of Rights (1st ten

amendments to the Constitution).

Constitutional Criminal Procedure (cont.)

Fourth Amendment: Regulates searches and seizures.

Fifth Amendment: Protects against self-incrimination, double

jeopardy, and guarantees right to grand jury.

Sixth Amendment: Right to a speedy and public trial by an impartial

jury, right to counsel, notice of charges, and confrontation of

witnesses.

Eight Amendment: Prohibits excessive bail, excessive fines, and

cruel and unusual punishment.

Fourteenth Amendment: Makes Bill of Rights applicable to the

states.

Due Process of Law

Found in both the 5th and 14th Amendments.

Refers to the essential elements of fairness under law.

Substantive due process protects against laws that are unfair.

Procedural due process ensures no one is deprived of life, liberty, or

property without proper and legal criminal process.

Due Process of Law (cont.)

Notice of charges

A formal hearing

The right to counsel/representation

Opportunity to respond to charges

Opportunity to confront and cross-examine witnesses

Free from self-incrimination

Opportunity to present one’s own witnesses

A decision made on the basis of substantial evidence and facts produced at

hearing

Written statement of reasons for the decision

An appellate review procedure