Criminal Law. Criminal Law. Substantive criminal law defines what types of conduct are criminal and prescribes the penalties to be imposed for engagement in that conduct.
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Criminal Law Substantive criminal law defines what types of conduct are criminal and prescribes the penalties to be imposed for engagement in that conduct. Procedural criminal law involves the rules designed to implement the substantive law. It is concerned with the criminal process, the legal steps through which an accused offender passes.
Western Criminal Law • Sumerian Codes (3500 BC) • Codes of Hammurabi (2000 BC) • Egyptian laws • Hebrew Law • Greco/Roman Law (Justinian I – 534 AD • Medieval Era • Magna Carta (1215 AD)
American Substantive Law • U.S. Constitution • State Constitutions • Federal, State, County, City Laws/Codes • Federal, State, County, City Regulatory Agency Rules and Regulations • Executive Orders • Federal and State Court Decisions
Crime A crime is an act or an omission prohibited by law, the violation of which is prosecuted by the state in a judicial proceeding in its own name. It is a public wrong as distinguished from a private wrong.
Standards of Proof 5% 20% 33% 51% 67% 90% Shred Reasonable Probable Preponderance Clear & Beyond Suspicion Cause Convincing Reasonable Doubt
Corpus Delicti • Actus Reus • Commission – movement, verbal, possession 2. Omission – failure to act when had a legal duty to do so (Writ of demurrer) • Mens rea (intent) • Reasonable Man Test
Mens Rea Lowest Highest General Recklessness General Specific Premeditation Negligence Intent Malice
Mens Rea • Insanity – lacks the capacity to appreciate the wrongfullness of their conduct. • Under the influence – vountariness is the key
Reasonable Man Test • An individual is not liable in a criminal court for remote, unforseeable, or indirect consequences which a reasonable person would not have foreseen as likely to have flowed from the act. There is a liability for the direct results of the act, but a diminished/no criminal liability for remote, unforseeable, or indirect consequences.
Civil vs Criminal Criminal LawCivil Law Public offense Private wrong Punishment Monetary damages State brings the action Individual brings the action Limited state appeals Both parties can appeal Fine goes to the state Individual compensation Beyond Reasonable Doubt Preponderance Reasonable Man Test No Reasonable Man Test Higher levels of intent Lower levels of intent Unanimous jury Non-unanimous jury
Homicide The killing of a human being, caused by the act of another. Justifiable A - Court order: 1 - execution 2 - hospital/comatose situation B - Necessary to suppress a legally defined riot setting. C - Necessary when law enforcement agents are dealing with a felon. D - Necessary when in defense of self or others. When you or a member of your party face a real and immanent threat of death or serious injury, deadly force may be utilized in a justifiable manner and no criminal liability will be forthcoming. E - Necessary when protecting your personal property (Make My Day Laws)
Homicide The killing of a human being, caused by the act of another. Excusable A - By an individual incapable of crime (account of 2 or 3 year old who pounded nail in ear of his 4 or 5 day old sister) B - Result of an accident or mistake as a result of ordinary negligence
Criminal Homicide Homicide that was neither justifiable nor excusable. - First degree murder (premeditation) - Second degree murder (malice) - Voluntary manslaughter (general intent) - Involuntary manslaughter (recklessness) - Statutory manslaughter (general negligence)
Felony Murder Rule Any death which occurs during the commission of a felony can be considered murder (usually 1st degree murder), and all participants in that felony or attempted felony can be so charged as long as there is a causal connection between the felony and the killing (proximate cause). This rule broadens the crime of murder in two ways: • Even if there was no intent to kill, if a death occurs during the commission or attempted commission of a felony, murder can be charged as long as there is a causal connection between the felony and the killing (proximate cause). • All participants in the felony can be held equally culpable, including those who did no harm, possessed no weapon, and did not intend to hurt anyone.
Assault Any un-consented touching of another, no matter how slight the injury. • Knowledge of the victim is essential • Words are sufficient – the accused’s conduct must have created an apprehension of immediate un-consented touching
Assault Categories • Simple assault • Aggravated assault • Verbal assault • Assault with a dangerous weapon • Assault with a deadly weapon • Assault on a law enforcement officer • Stalking • Domestic assault • Sexual assault
Sexual Assault Sexual assault (traditional definition) – the unlawful carnal knowledge of a woman by force without consent.
Unlawful Carnal Knowledge • No spousal exemption. • Spousal exemption only if living apart under or pursuant to a court order of divorce. • Blanket spousal exemption.
Carnal Knowledge • The slightest sexual penetration of intimate parts is sufficient to constitute a crime. • Most states have scaled out sexual assault along a gradient from level 1 (un-consented kissing) up to step 7 (sexual intercourse).
Of a Woman • No longer. Men may now be raped (gender neutral). • Done generally in response to homosexual scenarios.
By Force and Without Consent • What is force? Must the victim physically resist? • What is consent? Can there be any level of victim precipitation? If there is, is there a mitigating level of criminal liability on the part of the assailant?
Sexual Assault • Few cases are reported to the police. Officially there are 100,000 cases reported each year, but the actual number is likely closer to 3 million – 4 million. • Around 5% of cases reported are total fabrications. • An unknown number of cases involve a rape that has actually occurred and a purposeful false indentification of an offender by the victim.
Sexual Assault • Non-chastity of a woman is not a defense • Courtroom paradox • Rape Shield laws • Post sexual assault, assaults • Hollywood vs reality
Sexual Assault • Statutory Rape • Incest • Traditional Male Sex Crimes • Prostitution • Obscenity • Child Sexual Abuse
Child Sexual Abuse There is no firm definition, but in general, it is carnal knowledge of an individual under a designated age by someone who is over a designated age. Generically speaking of adults who engage in sexual activities with children, but, the legal definitions of “adult” and “child” in this context are somewhat asymmetric.
Child Sexual Abuse • Megan’s Law (SORIS) • Human trafficking • 20 million worldwide • 8 million in sex trade • 1.8 million children in sex trade • Protect Act • Extra-territoriality
Robbery Robbery – the taking and carrying away of the property of another, by force or the threat thereof; involves a fear factor • Simple “robbery” • Armed robbery (aggravated robbery) • Robbery with a dangerous weapon • Robbery with a deadly weapon • Bank robbery (typically a federal offense)
Crimes Against Property • Burglary – the breaking and entering into the dwelling of another with the intent to commit a felony
Crimes Against Property • Larceny/Theft – the taking and carrying away of the property of another by one who has no right to possession and/or ownership (intent is permanent deprivation of ownership); it is a trespass against the possession of another. • Grand theft • Petty theft • Shoplifting • Auto theft • Embezzlement (taking by one already in lawful possession; it is a trespass against the ownership, rather than the possession of, another)
Crimes Against Property:White Collar Crimes • Planned bankruptcy • Savings and Loan scams • Check kiting • Stock and bond fraud • Land fraud • Oil fraud • Tax fraud • Health care fraud • Price fixing and bid rigging • Illegal campaign contributions • Computer fraud • Communications fraud • Identity theft
Crimes Against Property:White Collar Crimes • Corporate Crime • Bid rigging/price fixing • Sale of defective merchandise • Dumping of defective merchandise • Illegal disposal (dumping) of toxic products • Hazardous working conditions • Filing false financial reports • Governmental Misconduct (white collar and beyond) • Watergate • Iran/Contra • Guantanamo/Abu Ghriab • Genocides
Crimes Against Property • Arson • Forgery • Counterfeiting products • Art crime • Receiving stolen property • Governmental Misconduct (white collar and beyond) • Watergate • Iran/Contra • Guantanamo/Abu Ghraib • Genocides
Crimes Involving Weapon Possession • Carrying a concealed weapon • Minors in possession of weapons • Possessing a weapon (D.C. v Heller) • Waiting periods • Restrictions • Registration • Permits and licenses • Bans
Other Crimes • Theft of services • Kidnapping/False imprisonment • Traffic violations • Bribery (offering or accepting a bribe) • the offer of anything of value to any person holding public office with the intent of influencing the official performance of their duty • the receipt of anything of value by a public official with the intent of being influenced in the official performance of their duty (what is lobbying?)
Drug Crimes It is a crime to knowingly and intentionally possess and/or distribute controlled substances with authorization. The big four at present are: - marijuana - cocaine/crack - methamphetamines - heroin
Other Street Drugs - LSD - Ecstasy - GHB - Dilaudid - Bufotenine - Ritalin - Rohypnol - Ketamine/Special K - Oxycontin (percocet/percodan) - Vicodin - Cheese (3% heroin and cold medication) - Khat - Salvia/Sally D
Biggest Problem Drugs • Tobacco (45 M deaths in U.S. by 2100; 1 B deaths worldwide) • Purchase underage • Provide to a minor • Smoke in public places • Tax avoidance • Alcohol (10 M deaths in U.S. by 2100) • Purchase underage • Possess underage • Provide to a minor/contributing to the delinquency of a minor • Public intoxication • Tax avoidance • DWI
Gold Collar Crime If you wish to break the law with impunity, become the law (Hitler, Stalin, Marcos, etc). Those who make the laws are far more dangerous to us than those we lock away. The great criminals we know of are the major corporations and their governmental partners who, in collusion, pass laws to make their illicit behaviors legal. We receive law enforcement attention in inverse proportion to our power and influence. “All governments that have flourished since the beginning of time have been nothing more than a conspiracy of the rich to perpetuate themselves under the guise of statecraft.” Thomas More “Anything that is economically right, is morally right.” Henry Ford Role model theory and the market economy (C. Wright Mills)
Role Model Theory and the Market Economy • Money is the measure of self-worth. • Money gives the power to change reality. • Money brings a measure of immunity from wrongdoing. • Unto those who acquire, less is required. • Definitions of crime (which are controlled by the elite), provide an ideology to justify their retention of power/the status quo. • The focus on street crime deflects attention away from the more serious crimes. • Our behaviors tend to reflect those in the higher social strata.