2. Crime and Criminal Law
Criminal law (substantive law)
Law of crimes
Defined by statute
Prescriptions
Proscriptions
Code of conduct all are expected to follow
Enforced by state
Primary purpose is protecting public from harm by
punishing harmful acts that have occurred and
forbidding conduct that may lead to it
3. What is Crime?
Tappan (1947)
“An intentional act in violation of the criminal law
committed without defense or excuse, and penalized by
the state”
1. An act in violation of
2. 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
4. Crime as a Subset of
Harmful Acts
Core offenses
All crimes
All social harm
All harms
5. Sources of Criminal Law
State and federal constitutions
State and federal statutes
New crimes added as circumstances warrant
Common law
Codified in most states by mid-1800s
Federal law is growing source of criminal law
Statutes define elements (various parts) of a crime
more specifically than common law
6. Limitations on Criminal Law
State cannot criminalize any conduct it chooses
Substantive due process
There are limits to what conduct the law may seek to
prohibit
Forbids passage of laws that infringe on rights of
individuals
Free speech
Assembly
Is underlying theory for privacy rights
7. Limitations on Criminal Law
Overbreadth doctrine
Laws unconstitutional when they fail to narrowly define
specific behavior to be restricted
Void for vagueness
Laws unconstitutional when they fail to clearly define
prohibited act and punishment in advance
Fair notice
Letting people know what is and is not permitted
8. Limitations on Criminal Law
Must not restrict due process
Must be enforced fairly and non-arbitrarily
Must not restrict equal protection
Laws cannot restrict rights of members of suspect
classifications
Cruel and unusual punishment
Punishments must be proportional to the crime
Jurisdictions not required to punish in same manner
9. Limitations on Criminal Law
Ex post facto laws
Cannot be penalized for behavior that was not illegal at
time they acted
Penalties cannot be increased after crime has been
committed
Do apply retroactively if they are beneficial
Bills of attainder
Cannot have laws that impose punishment without trial
10. Elements of Criminal
Offenses
Elements that must be present for criminal liability to
attach:
Actus reus
Mens rea
Concurrence
Causation
Harm
All make up corpus delecti
11. Actus Reus (Criminal Act)
The guilty act
Three forms
Voluntarily bodily movements
An omission in the face of a duty to act
Failure to perform legal duty
Failure to prevent harm when special relationship exists
Possession
If person has some knowledge that his or her possession is
illegal
12. Mens Rea (Criminal Intent)
Guilty mind
Inferred from circumstances surrounding criminal act
Motive and intent not same thing
Intent
Mental purpose or desire to commit certain act
Motive
Refers to cause or reason why act was committed
13. Mens Rea (Criminal Intent)
Model penal code sets forth four levels:
Purposeful
Knowing
Reckless
Negligent
Doctrine of transferred intent
14. Concurrence
Union of criminal act and criminal intent
Intent must set act in motion
Those not generated by intent do not constitute criminal
conduct
15. Causation
Criminal act is the act that is the cause of the harm
Two types:
Factual cause
“But for” actor’s conduct, harm would not have occurred
Legal cause
Also known as proximate cause
Consequences of act not reasonably foreseeable to actor
(intervening causes) relieve actor of some degree of
criminal liability
16. Harm
The result of the act
Injury to another or to society
There can be no liability without harm
Occurs in all crimes
Can be focused on harm only to actor
May be physical or mental
17. Liability Without Fault
Strict liability
Imposes accountability without proof of criminal intent in
situation where society deems it fair to do so
Statutory rape
Vicarious liability
Imputation of accountability from one person to another
Based on relationship of individual to person committing
illegal act
Only in civil law
18. Inchoate Crimes
Crimes that occur in preparation for an offense
Basically incomplete crimes
Inchoate
“To begin” or “to partially put into operation”
Three types
Attempt
Solicitation
Conspiracy
19. Parties to Crime
Doctrine of complicity
More than one person may be held liable for criminal
activity
Requires all criminal elements be present
Common law recognizes four parties:
Principles in the first degree
Principles in the second degree
Accessories before the fact
Accessories after the fact
20. Defenses to Criminal
Liability
Defense
Response made by defendant that allows them to avoid
criminal liability
Alibi
Form of defense where defendant asserts they are not
the person who committed the act charged
Affirmative defenses
Defendant admits they committed the act but denies
criminal liability
When defense is used burden of production shifts to
defense (preponderance of evidence)
21. Justification Defenses
Ones in which defendant admits they are responsible
for act but claims that under the circumstances, the act
was not criminal
Three types:
Self-defense
Consent
Execution of public duties
22. Justification Defenses:
Self-Defense
Use of force to repel imminent, unprovoked attack in
which person reasonably believed he or she was about
to be seriously injured
May only use as much force as is necessary
Retreat doctrine
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 defense of others and property
23. Justification Defenses: Consent
and Execution of Public Duties
Consent
Persons may consent to suffer what otherwise would be
an objectionable injury
Must be voluntary, knowing, and intelligent
Execution of public duties
Agents of state permitted to use reasonable force in the
lawful execution of their duties
Tennessee v. Garner (1984)
24. Excuse Defenses
Ones in which defendant admits what he or she did
was wrong but claims that under circumstances he or
she is not responsible for improper conduct
Four types:
Duress
Intoxication
Age
Insanity
25. Excuse Defenses: Duress
Situations involving threat of serious, imminent harm to
oneself, where act is less serious than threatened
harm
Those forced to commit crime in such circumstances
do not act voluntarily
Eliminates actus reus
Eliminates mens rea
26. Excuse Defenses:
Intoxication and Age
Intoxication
Voluntary
Never leads to acquittal
May only mitigate
Involuntary
May work as defense as person is not responsible for their
actions
Age
Persons below certain age lack capability to form mens
rea
Various jurisdictions define age parameters
27. Excuse Defenses: Insanity
Legal term to describe mental illness
Mental illness and legal insanity are not same thing
Impairs mens rea
Probably most controversial of all defenses
Rex v. Hadfield (1800)
First successful case using defense
Rex v. M’Naghten (1843)
Cemented modern insanity defense
28. Excuse Defenses: Tests for
Insanity
M’Naghten rule-right-wrong test
Durham rule-product test
Irresistible impulse test
Substantial capacity test
GBMI
29. Procedural Defenses:
Entrapment
One of number of procedural defenses
Increasingly being raised by those caught in drug
stings and Internet sexual enticement stings
Sherman v. U.S. (1958)
Court laid out two scenarios in which it occurs:
Crime is result of creative activity of law enforcement
Prosecutor cannot prove beyond reasonable doubt that
defendant was “independently predisposed” to commit the
crime
30. Categories of Crime
Crimes against the person
Crimes against property
Crimes against public order and morality
31. Categories of Crime: Crimes
Against the Person
Include:
Murder
Forcible rape
Aggravated assault
Robbery
32. Murder
FBI definition
Murder is willful (non-negligent) killing of one human
being by another
Common law definition
The killing of another with malice aforethought
Model Penal Code
Distinguishes between lawful and unlawful killings
Unlawful killings are criminal homicides
Three forms
33. Murder
Today, murder defined by Model Penal Code as a
killing that occurs:
Purposefully
Knowingly, or
Recklessly
Murder graded into
First degree
Second degree
States and courts differ on how to consider first degree
murders
34. Manslaughter
Voluntary
An intentional killing that occurs:
Under mistaken belief self-defense is needed, or
In response to adequate provocation while in sudden heat
of passion
Existence of adequate provocation does not eliminate criminal
liability, only reduces charge and associate punishment
Involuntary
Unintentional killing that occurs as result of reckless act
35. Negligent Homicide
Unintentional killing in which defendant should have
known they were creating substantial risk of death by
their conduct
Such conduct deviated from ordinary level of care
owed to others
36. Felony Murder Rule
Ranked as first-degree murder in some states
Second degree in others
Individual is held liable for unintended killing that
occurs during the commission of a dangerous felony
No requirement of intent to either kill or inflict serious
harm
37. Forcible Rape
FBI definition
“Carnal knowledge of a female forcibly and against her
will”
Common law definition
“Carnal knowledge by a man of a woman who is not his
wife, forcibly and without consent”
Definitions created several loopholes
Modern day statutes have among other things:
Removed gender specific language
Adopted marital rape exceptions
Child sexual assault
38. Aggravated Assault
FBI definition
“Unlawful attack by one person upon another for purpose
of inflicting severe or aggravated bodily injury”
Involves use of weapons
Common law definition
Assault: attempt or threat to inflict immediate harm
Battery: unjustified, offensive physical contact
Modern statutes have merged assault with battery to
fall under same name
39. Robbery
FBI definition
Taking or attempted taking of anything of value from
care, custody, and control of person or persons by force
or threat of force or violence and/or putting victim in fear
Often classified as violent crime
Extortion
Taking of property accomplished by threat of future harm
to person, property, or reputation
40. Categories of Crime: Crimes
against Property
Include:
Arson
Burglary
Larceny/Theft
41. Arson
FBI definition
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.
First degree
Burning of an occupied structure
Second degree
Burning of an unoccupied structure
Third degree
Burning of personal property
There must exist an intent to burn
42. Burglary
FBI definition
Unlawful entry of structure to commit felony or theft
Seventeenth century
Breaking and entering of dwelling of another at night with
intention of committing felony inside dwelling
Today burglary can occur during the day
Not entry alone
Must be unlawful entry accompanied by intent to commit
another crime inside
43. Larceny/Theft
FBI definition
Unlawful taking, leading, or riding away from the
possession or constructive possession of another
Graded depending on method of taking and the value
of property taken
Grand theft versus petty theft (felony and misdemeanor)
Crimes against property (theft) more common than
crimes against person
44. Categories of Crime: Crimes
against Public Order
Those in which injury is to the peace and order of
society
Disorderly conduct
Unlawful assembly
Vagrancy
45. Categories of Crime: Crimes
against Morality
Those in which the moral health of society is injured
Adultery
Prostitution
Obscenity
