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Chapter 1. Fundamentals of Criminal Law and Procedure. Introduction. Constitutional supremacy – constitution is the supreme law of the land and that all actions and policies of government must be consistent with it. Federalism.

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Chapter 1

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Chapter 1

Fundamentals of Criminal Law and Procedure


  • Constitutional supremacy–constitution is the supreme law of the land and that all actions and policies of government must be consistent with it.


  • Federalism – constitutional distribution of government power and responsibility between the national government and the states.

Separation of powers

  • Separation of powers – constitutional assignment of legislative, executive, and judicial powers to different branches of government.

What is Crime?

  • A crime is defined as a wrong against society

  • A strictly defined behavior which is prohibited by law.

Elements to a Crime

  • All crimes involve two components:

    • Actus reus – wrongful act

    • Mens rea – wrongful act accompanied by criminal intent.


  • If it is defined as a crime (strictly prohibited behavior) does that make the prohibited conduct wrong?

Felonies and Misdemeanors

  • Felony – serious crimes. Can be imprisoned for more than 1 year. (ex: murder, rape, kidnapping, robbery, grand larceny, arson).

  • Misdemeanors –less serious offenses. Jail terms of less than 1 year. (ex: petit theft, public drunkenness, disorderly conduct, prostitution, gambling, simple assault and battery).

Crime: An Injury against Society

  • Our legal system regards crimes no merely as wrongs against particular victims but as offenses against the entire society.

  • The government, who is society’s legal representative, brings charges against persons accused of committing crimes.

Criminal Responsibility

  • Criminal law is predicated on the concept that individuals are responsible for their actions and must be accountable for them.

  • Society also recognizes that certain individuals, such as children, lack the capacity to appreciate the wrongfulness of their conduct.

  • Factors beyond individuals’ control may lead them to commit criminal acts.

  • There are situations in which acts that would otherwise be criminal might be justified (ex: self-defense).

Civil and Criminal Law

  • Breach of Contract – When a party to a contract violates the terms of the agreement.

  • Tort – A wrongful act that does not violate any enforceable agreement but violates a legal right of the injured party (ex: wrongful death, wrongful destruction of property, trespass, and defamation of character).

Substantive and Procedural Criminal Law

  • Substantive Criminal Law – defines criminal offenses, defenses, and specifies criminal punishments.

  • Procedural Criminal Law – regulates the enforcement of the substantive law, determination of guilt, and punishment of those found guilty of crimes.

Origins and Sources of theCriminal Law

  • Mala in se – inherent wrongs (ex: murder, rape, robbery, & arson).

  • Mala prohibita – these are offenses only because they are defined by law.

Development of the English Common Law

  • English common law – American criminal law is derived from English common law. This dates from the eleventh century.

  • Stare decisis – deciding cases based on precedent.

State and Local Authority

  • Statutes – applicable law enacted by legislature.

    They are the principal actors in defining crimes and punishments.

  • Ordinances – enactment of a local governing body (city council or commission).

Model Penal Code

  • Model Penal Code – consists of general provisions concerning criminal liability, sentences, defenses, and definitions of specific crimes. MPC is not law, it is designed as a model code of criminal law for all states.

Role of Courts in Developing Criminal Law

  • Decisional Law – Law declared by appellate courts in their written decisions and opinions.

  • Error Correction Function – The task to correct errors of a lower tribunal.

  • Lawmaking Function – This is not the principal function of an appellate court, referred to as the law development function.

Constitutional Limitations on the Criminal Justice System

  • An expost facto law is a law which:

    • Retroactively makes a previously innocent act illegal

    • Retroactively increase the punishment for a specific crime

    • Retroactively decreases the burden of proof required for conviction of a crime

Bill of Rights

  • Bill of Rights – a written document of basic rights. The first ten amendments to the Constitution adopted by Congress in 1789 and ratified by the states in 1791.

Due Process

  • Due Process of Law – those procedural and substantive safeguards necessary to ensure the fundamental fairness of a legal proceeding.

  • Requires fair notice and fair hearing

  • What else might be required?

Presumption of Innocence

  • Reasonable doubt – defendant is presumed innocent and that the prosecution must establish the defendant’s guilt.

  • Presumption of innocence – presumed is innocent until proven guilty.

The Goals of Sentencing

Retribution – criminal must pay for wrongs against society. Criminals given their “just deserts”.

Deterrence – punishing criminal for their crimes can prevent others from committing the same offenses.

Incapacitation – prevent the criminal from committing additional crimes.

Rehabilitation – changing the offender so they can function in civil society without resorting to criminal behavior.

Criminal Punishment

Types of Criminal punishment:

Death Penalty – reserved for most aggravated murders.

Incarceration – for persons convicted of felonies. Imprisoned from one year to life.

Monetary fines – most common punishment for misdemeanors.

Criminal Punishment

Restitution – criminals paying sums of money to their victims.

Probation – usually for first time offenders. Conditional release of a convicted criminal in lieu of incarceration.

House arrest – offender is allowed to leave home only for employment and approved community service activities.

Types of Criminal punishment continued:

Community Service – criminal performs specific service to the community for a period of time.

Pretrial diversion program – criminal completes a program of counseling or service.

Loss of Civil Rights – losing the right to vote and to hold public office. They can keep theirfundamental constitutional rightssuch as expressing their religious beliefs.

Should Morality, in and of itself, be considered as a sufficient basis for defining particular conduct as criminal?

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