Do Now Read the article silently to yourself and reflect on it by answering the questions

Criminal Justice ICriminal Law

Mr. Concannon Smith

Written Sources of American Criminal Law

American criminal law originally was uncodified, but has since been written down and made accessible to all

American criminal law is also referred to as “substantive” criminal law, and is available in several written sources The United States Constitution and various state

constitutions Statutes, or laws, passed by Congress and by state

legislatures, plus local ordinances Regulations created by regulatory agencies Case law (court decisions)

Constitutional Law The law as expressed in the United States Constitution

and the constitutions of various states

The U.S. Constitution is the supreme law of the land. Each state has its own constitution, which is the supreme

law of the respective state (but the US Constitution maintains supremacy over the state constitutions as stated above)

fornication |ˌfôrniˈkāSHən|noun

sexual intercourse between people not married to each other

Case Law Referring to MGL 272 section 18

Fort v. Fort, 12 Mass. App. Ct. 411 (1981). "The crimes of fornication, adultery, and lewd and lascivious cohabitation are never, or substantially never, made the subject of prosecution.”

Attorney Gen. v. Desilets, 418 Mass. 316 (1994). "This statute is of doubtful constitutionality, at least as applied to the private, consensual conduct of persons over the age of consent."

Do Now What is direct democracy?

Think back to your US History I course!

Why were the founders so wary of it?

Modern Code and Voter Made Law

Mr. Concannon Smith

Modern Penal Code First Model Penal Code was released in 1962.

(American Law Institute) The code defines the general principles of criminal

responsibility and codifies specific offenses

There are essentially fifty-two different criminal codes in the United States one for each state, the District of Columbia, and the

federal government

Ballot initiatives in 24 states allow voters to approve proposed measures that can be enacted into law

Ballot Initiatives At the state and local level, voters can write

or rewrite criminal statutes through a form of direct democracy known as a ballot initiative.

A group drafts a proposed law and gather signatures (petition) to get the proposal on that year’s ballot

If a majority of the voters approve the measure, it is enacted into law.

Currently, 24 states and the District of Columbia accept ballot initiatives

Example in MA 2008: Decriminalizing Small

Amounts of Marijuana Possession possession of one ounce or less

of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture

Referendum Popular referendum – The people may

challenge a law recently passed by the legislature. If enough signatures are gathered, the law will be put to a vote by the people who may vote to nullify the law or uphold the law.

Activity Death with Dignity

Administrative & Case LawMr. Concannon Smith

Administrative Law Rules, orders, and decisions of regulatory agencies

Regulatory agencies are federal, state, or local government agencies established to perform a specific function

Example: Occupational Safety and Health Administration (OSHA) oversees the safety and health of American workers

Food and Drug Administration (FDA) serves as another example

Disregarding certain laws created by regulatory agencies can result in criminal prosecution

Case Law Another basic source of American

criminal law consists of rules of law announced in court decisions

Case Law includes interpretations of constitutional provisions

Also referred to as common law or judge-made law

Precedents are judge-made decisions that may be used to help decide subsequent cases (stare decisis)

Precedent Definednoun |ˈpressid(ə)nt|

an earlier event or action (think preceding) that is regarded as a guide to be considered in subsequent circumstances (if something is unprecedented than nothing

like it has happened before)

IN LAW a PRECEDENT is a previous case or legal decision that may be or (binding precedent) must be followed in subsequent similar cases: the decision set a precedent for others to be sent to trial in the US.

Purposes of Criminal LawMr. Concannon Smith

The Purposes of Criminal Law

Protect and punish: the legal function of the law Primary function is to maintain social order by

protecting citizens from criminal harm

Variety of criminal harm can fall into two categories Harms to individual citizens’ physical safety

and property (murder, theft, arson) Harms to society’s collective interests (unsafe

food, consumer products, a polluted environ.)

Passed 1953 regulates the manufacture of highly flammable clothing and fabrics. The Consumer Protection Safety Commission can issue mandatory flammability standards.

Standards have been established for the clothing textiles, vinyl plastic film, carpets and rugs, children's sleepwear and mattresses and mattress pads.

Penalty: Imprisonment for not more than 5 years for a

knowing and willful violation

Flammable Fabrics Act

Social Functions of Criminal Law

Expressing public morality The main purpose of the criminal law is to reflect

the values and norms of society A SOCIETY’S VIEW OF MORALITY

CHANGE

Teaching societal boundaries Laws teach values that are the expressed

expectations of society Various laws also can teach society about the

consequences of non-compliance, thus reinforcing the social order

Teaching Through Punishment

Fining Speeders, Revoking License, Reckless Driving Criminal Record

VA example:

2 days in jail for every mph over 90 mph, and, if over 100 mph, add an additional 30 days in jail to that total.

Thus, someone convicted of doing 94 mph will get 8 days in jail, and someone doing 101 mph gets 52 days in jail! (crime = time ?)

Classification of Crimes

Civil Law and Criminal Law

*two categories of law distinguished by their primary

goals

Criminal Law Criminal justice system is concerned with

protecting society form harm by preventing and prosecuting crimes

Crime is an act so reprehensible that it is considered a wrong against society as a whole

State prosecutes a person who commits a criminal act

Persons found guilty of a crime will be punished by government by imposing fines or imprisonment or both

Civil Law Includes all types of law other than criminal law

Concerned with disputes between private individuals and between entities

Proceedings in civil lawsuits are normally initiated by private individuals and between entities

Torts, or “private wrongs” involve disputes between an “injured” party (the plaintiff) and the accused (the defendant)

Major DistinctionCriminal

A criminal court determines if a defendant is guilty of the criminal offense which he or she has been charged

Civil

A civil court is concerned with assigning responsibility for the plaintiff’s injury or loss

Much more flexible concept

Example 19 year old George Baldwin was paralyzed in

a car accident in 2011.

An Illinois judge partially blamed Laura Pfeifer

Baldwin had been drinking beer with Pfeifer’s underage daughters at Laura Pfeifer’s house before losing control of his car

Even though the mother was unaware of the teenagers’ activities, the judge decided that she was liable (legally responsible) for his injuries because she should have monitored her daughters behavior more closely.

Massachusetts Bullying Law Activity

Look over the handout and answer the following:

1. Compare the Florida case and the California case with MA Law.

2. Do you think this FL case meets the legal definition of bullying in Massachusetts? Use evidence from BOTH to support your answer

3. Do you think this CA case meets the legal definition of bullying in Massachusetts? Use evidence from BOTH to support your answer

4. Do you think the parents should be held liable? Teachers?1. Why/why not?

Felonies and Misdemeanors

Mr. Concannon Smith

Burden of Proof: Civil & Criminal Law

Both attempt to control behavior by imposing sanctions on those who violate the law

Often supplement each other, as a victim may file a civil suit against an individual who also is the target of criminal prosecution

Criminal Law

The burden of proof in criminal court is beyond a reasonable doubt, a much greater standard than that which is applied in civil court

Civil Law

The burden of proof in civil court is preponderance of the evidence, much less difficult to prove

Felony v. Misdemeanor Crimes are classified as felonies or misdemeanors

based on their degree of seriousness

Felonies Felonies are serious crimes punishable by death or

imprisonment in a federal or state penitentiary for one year or longer:

Capital offenses—the maximum penalty is death

First degree felonies—the maximum penalty is life imprisonment

Second degree felonies—the maximum is ten years imprisonment

Third degree felonies—the maximum is five years imprisonment

Degrees Vary State-to-State

Despite the minor variations: Murder in the first degree—when the crime is premeditated

and deliberate Murder in the second degree—occurs when there is no

premeditation or deliberation, but the perpetrator did have malice aforethought toward the victim

Homicide—without malice aforethought towards the victim, known as manslaughter Voluntary manslaughter occurs when the intent to kill was present, but

malice was lacking Involuntary manslaughter occurs when the actions of the defendant

were careless, but there was no intent to kill

Misdemeanors Punishable by a fine or by confinement for up to a year

If imprisoned, the guilty party goes to a local jail instead of a penitentiary

Gross misdemeanors—offenses punishable by thirty days to a year in jail

Petty misdemeanors—offenses punishable by fewer than thirty days in jail

Infractions—punishable only by a small fine and does not appear on a wrongdoer’s criminal record

Do NowFor an act to be a crime, do you think

the accused person must have intended to commit the crime (i.e. is it necessary for the person to have a “guilty mind”)?

Consider a situation where a person might have committed a criminal act without meaning to. Should the person be charged? Would it be fair to be convicted of the crime?

Elements of a CrimeMr. Concannon Smith

Mala in se Considered wrong even if there were

no law prohibiting it Said to go against “natural laws”

Against the “natural, moral, and public” principles of society

Examples include murder, rape, and theft

Mala prohibita Acts considered crimes only because they

have been codified as such through statute “Human-made” laws

Considered wrong only because it has been prohibited; it is not inherently wrong

Definitions can vary from country to country or state to state

The Elements of a Crime

Criminal law requires that the corpus delicti, “the body of the crime,” be proven before a person can be convicted of wrongdoing

Corpus delicti can be defined as “proof that a specific crime has actually been committed by someone”

Basic elements (criminal act and mental state) required

actus reus (criminal act) Guilty Act

The act of commission must be voluntary In some cases an act of omission can be a crime,

when the defendant had a legal duty to perform the omitted act

You can also be punished for: taking substantial steps towards the commission of an

offense attempting to commit the crime.

mens rea (mental state) Guilty mental state includes knowledge (desire), negligence

(know but don’t care), and recklessness (requisite intent) Ex: theft––taking another's property is the actus reus but doing so

while fully aware that the property is not yours is the mens rea.

A defendant has knowingly committed an illegal act when he or she is aware of the illegality, believes the illegality exists or suspects (correctly) the illegality, but fails to dispel his or her belief

Criminal negligence: defendant grossly deviates from the standard of care that a reasonable person would

Recklessness is “consciously disregarding a substantial code” and is more blameworthy than negligence

Banksy

“Some people become cops because they want to make the world a better place. Some people become vandals because they want to make the world a better looking place.”- Banksy (Wall and Piece)

Auctioned for $1,100,000 Dollars

MGL 263 Section 126A Section 126A. Whoever intentionally, willfully and

maliciously or wantonly, paints, marks, scratches, etches or otherwise marks, injures, mars, defaces or destroys the real or personal property of another including but not limited to a wall, fence, building, sign, rock, monument, gravestone or tablet, shall be punished by imprisonment in a state prison for a term of not more than three years or by imprisonment in a house of correction for not more than two years or by a fine of not more than fifteen hundred dollars or not more than three times the value of the property so marked, injured, marred, defaced or destroyed, whichever is greater, or both imprisonment and fine, and shall also be required to pay for the removal or obliteration of such painting, marking, scratching or etching, or to remove or obliterate such painting, marking, scratching or etching.

Liability (types) Mr. Concannon Smith

Criminal Liability Intent plays an important part in allowing the law to

differentiate varying degrees of criminal liability for similar––but not identical––guilty acts

A willful act implies the highest level of criminal liability precludes crime committed accidentally

Different degrees of criminal liability lead to different penalties A death that results from negligence or accident is

generally considered a private wrong and a matter for civil law (Zimmerman/Martin)

Strict Liability For certain crimes, criminal law holds the defendant

to be guilty even if intent to commit the offense is lacking (known as Strict Liability Crimes)

Generally involve protecting the public welfare in some way (or protecting minors)

Examples include: drug control statutes, health and safety regulations, statutory rape provisions, and traffic ordinances are all strict liability laws

Inconsistent with mens rea but necessary to protect the public from claims of ignorance by wrongdoers

Accomplice Liability Under certain circumstances, a person can be charged with

and convicted of a crime that he or she did not commit

Occurs when the suspect has acted as an accomplice to a crime Either in the physical sense (getaway car/safe-house) or

psychological sense (encouraging person to commit crime)

To be found guilty as an accomplice, suspect needs to have “dual intent”

1. To aid the person who committed the crime

2. Such aid would lead to the commission of the crime

Felony Murder (Acc. Liability)

Generally, intent to kill is unnecessary for felony-murder.

The rule becomes operative when there is a killing during or a death soon after the felony (w/some causal connection between the felony and the killing) Mostly limited by requiring that the felony must be

a dangerous one or that the killing is foreseeable, or both.

Restricted application to dangerous felonies usually enumerate the crimes. Burglary, Kidnapping, rape, and robbery are typical

felonies that invoke the rule. Under most statutes, the felony must be a proximate cause of the death.

Crime Considerations:Concurrence, Causation,

& Attendant Circumstances

Mr. Concannon Smith

Concurrence The criminal act and the guilty mind must be linked

in accordance with criminal law

The guilty act and the guilty intent must occur together (except in cases of strict liability)

Example:

A woman plans on poisoning her husband to collect his life insurance. On the day she plans on doing it she is driving home with her husband and she swerves to miss a deer, hitting a tree. He dies. Her intent was realized, but the incident would be considered an accidental death (no concurrence)

Causation A link between the act and the legal definition of the crime

also must be present in accordance with criminal law

Criminal law requires that the criminal act caused the harm suffered

Example:

In Michigan two defendants were charged with murder even though their victim died four years after the crime. In the course of the robbery, the defendants shot the victim in the heart and abdomen and left him in a sewer. The victim survived but with a very weak heart. Four years later he collapsed during a basketball game and died.

Attendant Circumstances

Attendant circumstances may be applicable in certain crimes (facts surrounding a case that that prosecutors must prove beyond a reasonable doubt)

Allow for differentiation among varying degrees of a crime (simple assault v. aggravated assault)

Sometimes, the attendant circumstance requirement can lead to unfairness:

Example: In October, 2009 a 15 year old girl was gang-raped for more than 2 hours outside a school dance in Richmond, CA. As many as 20 people witnessed the rape and did nothing. Attendant circumstances law in CA requires bystanders to report sexual assaults on children to police, but only if the child 14 or younger. Thus, these bystanders who failed to act, could not be charged.

Hate Crimes Hate crime laws consider a motive of bias an

attendant circumstance and increase the criminal penalty accordingly

In general, hate crime laws provide for greater sanctions against those who commit them (can be considered aggravated circumstance): race, religion, sexual orientation, disability or age.

gender, ethnicity

Defenses Under Criminal Law

Mr. Concannon Smith

Defenses Under Criminal Law

There are three main defenses taken:

1. The defendant is innocent of the crime (did not commit the crime for which he or she was accused)

2. The defendant is not responsible for the crime

3. The defendant was justified in committing the crime.

These bottom two are called “excuse defenses.”

Insanity 1. The defendant’s state of mind is such

that he or she cannot be held legally responsible for his or her actions He or she does not perceive the physical nature

or consequences of his or her conduct He or she does not know that his or her conduct

is wrong and/or criminal He or she is not sufficiently able to control his or

her conduct so as to be held accountable for it

2. Tests used to measure sanity have long been debated

1. The right-wrong test, or M’Naghten Rule (1843), states that a person is legally insane and therefore not criminally responsible if, at the time of the offense, he or she was not able to distinguish between right and wrong

2. The ALI/MPC test (1960s). Also known as the substantial-capacity test, the ALI/MPC requires that the defendant lack “substantial capacity” to either “appreciate the wrongfulness” of his or her conduct or conform that conduct “to the requirements of the law”

3. Irresistible-impulse test supplemented the M’Naghten Rule as a less restrictive option in which a person may be found insane even if he or she was aware that a criminal act was “wrong,” provided that some “irresistible impulse” resulting from a mental deficiency drove him or her to commit the crime

ALI/MPC The ALI Standard developed to soften the McNaughton

Rule

It was developed in 1962 It requires the defendant to have a lack of

understanding or appreciation for what they did, rather than absolute knowledge, like in the McNaughton Rule.

Another requirement is that the mental disease or defect must be a medical diagnosis (Modern Penal Code Test)

What is important to note about the ALI Standard is that it incorporates three aspects: There was knowledge of the difference between right and wrong

(M’Naughton) lack of control (Irresistible Impulse) diagnosis of mental defect (MPC).

3. Guilty but Mentally Ill

Allows a jury to determine that a defendant is “mentally ill” though not insane, and therefore criminally responsible for his or her actions Sound familiar? Kimberly Ferguson (state

rep. Holden) is pushing this legislation in MA currently)

Defendants found guilty but mentally ill spend the early years of their sentence in a psychiatric hospital or they receive treatment while in prison

Infancy & Intoxication Defenses

Mr. Concannon Smith

Infancy Under the earliest criminal codes of the United

States, children under seven years of age could never be held legally accountable for crimes The accused person’s wrongdoing is excused

because he or she is too young to fully understand the consequences of his or her actions

Today, states decide the age under which wrongdoers are sent to juvenile court and the juvenile detention centers (if necessary).

Intoxication1. Involuntary

Occurs when a person is physically forced to ingest or is injected with an intoxicating substance, or is unaware that a substance contains drugs or alcohol A viable defense to a crime if the substance leaves the

person unable to form the mental state necessary to understand that the act committed while under the influence was wrong

2. Voluntary Not a defense in itself. Many courts are reluctant to

allow voluntary arguments to be presented to juries Used when arguing that mens rea was negated and was

not in the right state of mind that a crime requires

Justification DefenseMr. Concannon Smith

Self Defense Generally people can use non-deadly force necessary to protect

themselves. Deadly force can be used if there is a reasonable belief that imminent death or bodily harm will otherwise result.

When outside the home or in a public space, some states assert there is a duty to retreat; in other words, deadly force cannot be used if there is an opportunity to “run away”

Defense of one’s dwelling “castle doctrine” usually expands self defense parameters justifying killing In MA only if person is unlawfully in home (i.e. break-in)

DTR not popular with many…spurred Stand Your Ground Legislation

Stand Your Ground Laws 2008

Duress Exists when the wrongful threat of one person induces

another person to perform an act that she or he would otherwise not perform

Requirements must be met

1. Threat must be of serious bodily harm

2. Harm threatened must be greater than the harm caused by the crime

3. Threat must be immediate and inescapable

4. Defendant must have become involved in the situation through no fault of his or her own

5. Never excuses killing another innocent human

Necessity Justifiable if “the harm or evil sought to be

avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged”

Used as a defense against criminal liability in which the defendant asserts that circumstances required him or her to commit an illegal act

Example: Fleeing the scene of a car accident your were a key participant in because you heard someone scream “I’m going to kill you, you _______ ________!”

Entrapment A justification defense that criminal law

allows when a police officer or government agent deceives a defendant into wrongdoing

Police cannot persuade a suspect in a criminal act, nor can they coerce a suspect into doing so, even if they are certain he or she is a criminal

Activity/Homework In a group of no more than FOUR,

come up with a scenario for DURESS NECESSITY or ENTRAPMENT that can be acted out in front of your classmates.

Be as detailed as you can about the specifics of your case.

Your classmates (as jury) will decide if the defense is legitimate.

Procedural Criminal LawMr. Concannon Smith

Substantive v. Procedural

1. Substantive criminal law—defines the acts that the government will punish Example: dealing drugs

2. Procedural criminal law—defines laws for criminal procedures (rules defining how the laws are enforced) Example: how to legally search a suspected

drug dealer

Procedural Law History Date back to 1789: Bill

of Rights Ten amendments

adopted into the Constitution in 1791

Have been interpreted by the United States Supreme Court

Serving as safeguards for those accused in this country

1. Freedom of Speech, Religion, Press, Petition

2. Bear Arms

3. Govt. cannot house troops in your house

4. SEARCH AND SEIZURE

5. Rights of the Accused

6. Speedy Trial

7. Jury Trials

8. Bails, Fines, and Punishment

9. Reserved Powers

10. Powers not enumerated to the States

Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to search, arrest & prosecute a person in criminal court.

Before a person can be arrested and prosecuted, police and prosecutor must have enough facts that would lead a reasonable person to believe that the claim or charge is true.1. Police must possess probable cause before they

may search a person or a person's property, and before they make an arrest.

2. The court must find that probable cause exists to believe that the defendant committed the crime before prosecuting

Reasonable Suspicion Police may briefly detain and conduct a

limited search of a person in a public place if they have a reasonable suspicion that the person may have committed a crime (involved in crime)

Reasonable suspicion is a level of belief that is less than probable cause (enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring/has occurred).

In practice this requirement means that an officer need not possess the measure of knowledge that constitutes probable cause to “Stop and Frisk” a person in a public place.

Stop and Frisk (Student)

Stop and Frisk (Police)

CJBill of Rights

Mr. Concannon Smith

Four Significant Rights

1. Fourth Amendment Protection from unreasonable searches and seizures Requirement that no warrants for a search or an arrest

can be issued without probable cause

2. Fifth Amendment Requirement that no one can be deprived of life,

liberty or property without “due process” of the law Prohibits against “double jeopardy”

the prosecution of a person twice for the same offense. Guarantees that no person can be required to be a

witness against himself or herself

3. Sixth Amendment Guarantees a speedy trial, a trial by jury, a

public trial Guarantees the right to confront witnesses, and

the right to a lawyer at various stages of criminal proceedings

4. Eighth Amendment Protects against excessive bail and fines Protects against cruel and unusual punishment

important in capital cases

Four Significant Rights

Riley v. California