Criminal Law: Substance and Procedure

Chapter 4

Substantive Criminal Law:

A body of specific rules that declares what conduct is criminal

and prescribes the punishment to be imposed for such conduct

Procedural Law:

The rules that define the operation of criminal proceedings, from

obtaining a warrant or making an arrest through trial, sentencing

and appeal

Substantive and Procedural Law

Babylonian Code of Hammurabi (2000 B.C.)

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

Roman Twelve Tables (451 B.C.)

Corpus Juris Civilis (6th Century)

French Civil Code

Early Anglo-Saxon societies

wergild (monetary compensation) for criminal violations

guilt was determined by two methods:

compurgation

trial by ordeal

Historical Development of the Criminal Law

After the Norman conquest of England, the common law tradition

develops

Judges have the power to “interpret” acts according to customs,

traditions and previous legal decisions

Stare Decisis:

To stand by decided cases; the legal principle by which the

decision or holding in an earlier case becomes the standard by

which subsequent similar cases are judged

The Common Law Legal Tradition

Civil Law:

All law that is not criminal, including tort, contract, personal

property, maritime and commercial law

Tort Law:

The law of personal wrongs and damage; includes negligence,

libel, slander, assault, and trespass

Civil vs. Criminal Law

Exhibit 4.1 Common Law Crimes

Exhibit 4.2 A Comparison of Criminal and Tort Law

Common law, statutes and case decisions

Administrative rules and regulations

Constitutional laws

Sources of the Criminal Law

Group I

Felony - A more serious crime that carries a penalty of

incarceration in a state or federal prison usually for one year or

more

Misdemeanor - A less serious crime usually punishable by a fine

or incarceration in a local jail for less than one year

Violations

Group II – other statutory classifications such as:

Juvenile delinquency

Sex-offender categories

Multiple or first offender classifications

Classifying Crime – Two Primary Groups

A legal wrong

Prohibited by the criminal law

Prosecuted by the state in a formal court proceeding in which a

criminal sanction or sentence may be imposed

Legal Definition of Crime

Exhibit 4.3 Armed Burglary in Massachusetts

Mens Rea: A guilty mind; the intent to commit a criminal act

The intent to do an act

Knowledge of circumstances that make the act a criminal offense

Actus Reus: An illegal act, or failure to act, when legally required

Guilty Mind and Guilty Act

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A criminal violation (usually one that endangers the public welfare)

that is defined by the act itself, irrespective of intent

Examples include things like speeding and serving alcohol to a

minor because he/she looked older

Strict Liability Crime

Exhibit 4.4 New York State Law: § 270.10 Creating a Hazard

Individuals defend themselves against criminal charges by refuting one or

more elements of the case. For example, they can refute the:

Actus reus – claiming not to have committed the behavior

Mens rea – claiming not to have the necessary mental intent for the act

Justification – a defense that admits the criminal act but maintains that the

act was justified because of necessity, duress, self-defense or entrapment

Ignorance or Mistake – as a general rule ignorance is not an excuse;

however, in limited cases the court has recognized it as a defense

Insanity – a defense to a criminal prosecution in which the defendant’s state

of mind negates his or her criminal responsibility

Criminal Defenses

Exhibit 4.5 Various Insanity Defense Standards

Spurs crime

Releases criminal offenders

Requires extensive use of expert testimony

Commits more criminals to mental institutions than prisons

Criticisms of the Insanity Defense

Intoxication – Voluntary intoxication as a general rule is not

considered a defense. However, involuntary intoxication caused by

mistake or duress may be accepted as a defense.

Age – Common law established minimum age limits for a reliable

presumption of culpability. Today, state statutes have specified age

limits. The general trend is to lower the minimum age at which

criminal responsibility is presumed capable.

Other Defenses

A legal defense that maintains the police originated the criminal idea

or initiated the criminal action

Entrapment

An effort has been made by the federal and state governments to

update legal codes so that they may accurately reflect:

Public opinion

Social change

Technological innovation

Other important social issues

Substantive Criminal Law Reform

Procedural law consists of the rules and procedures that govern the

pretrial processing of criminal suspects and the conduct of criminal

trials.

First ten amendments to the U.S. Constitution

Purpose is to prevent government from usurping the personal

freedom of citizens

Applied to state actions through the use of the Due Process clause

of the 14th Amendment

Procedural Law and the Bill of Rights

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The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized

Key Constitutional Protections: The Fourth Amendment

No person shall be held to answer for a capital, or otherwise

infamous crime, unless of a presentment or indictment of a grand

jury, except in cases arising in the land or naval forces, or in the

militia, when in actual service in time of war or public danger; not

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; not shall private property be taken for public use,

without just compensation

Key Constitutional Protections: The Fifth Amendment

In all criminal proceedings, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him, to have compulsory process for obtaining

witnesses in his favor; and to have the assistance of counsel for his

defense

(The above excerpts from amendments modernize

spelling/capitalization, but retain outdated punctuation.)

Key Constitutional Protections: The Sixth Amendment

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted

Key Constitutional Protections: The Eighth Amendment

A view that all the provisions of the Bill of Rights are included in the

14th Amendment and are therefore applicable in state proceedings

Selective incorporation holds that provisions of the Bill of Rights must

be applied to states on a case-by-case basis

Incorporation Theory

Justice Felix Frankfurter emphasized the definition of due process in

Rochin v. California (1952):

“Due process of law requires an evaluation based on a disinterested

inquiry pursued in the spirit of science on a balanced order of facts,

exactly and clearly stated, on the detached consideration of

conflicting claims . . . on a judgment not ad hoc and episodic but duly

mindful of reconciling the needs both of continuity and of change in a

progressive society.”

The Meaning of Due Process