Criminal Law

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Criminal Law

Substantive criminal law

Criminal procedure

Criminal law and welfare law


Criminal law, in the substantive sense, is a body of norms, formally promulgated through specified governmental organs, contravention of which warrants the imposition of punishment through a special proceeding maintained in the name of the people or the state. Criminal procedure is formalized official activity that authenticates the fact of commission of a crime and authorizes punitive treatment of the offender. These are at best core definitions; they do not comprehend all legal systems, all stages in the development of a legal system, or all elements within a given legal system.

Substantive criminal law

Substantive criminal law embodies both specific prohibitions and the general principles within which those prohibitions are construed. From the specific prohibitions one may glean the particular problems about which the society that produced them is concerned or at least has been concerned in the past. From the penalty provisions one can ascertain whether the community believes that punishments should be meted out in exact retribution for harm done or believes that flexible periods of segregation suit its needs best. From the statement of general principles in a penal code one can learn the factors or circumstances that the lawmakers view as significant in deciding whether punishment shall be mitigated or eliminated entirely in an individual case.

Moreover, how one views the context of a penal code depends on his view of law in general. Typically, legislators and judges appear to believe that legal norms are self-executing, so that the important thing is enactment of a law on any subject about which there is current concern. To make certain that citizens listen to it, the legislature usually attaches relatively heavy penalties to its enactments. The fact of enactment is usually equated with actual control.

At the other end of the philosophical spectrum, however, stand those who maintain that legal norms, including those embodied in the criminal law, are valid only to the degree that they express the generally accepted values in the community and thus are enforceable only for whatever period of time the community’s attitudes toward these values remain basically unchanged. In support of this approach, one need only cite the mass of outmoded sections or statutes that are typically part of a state’s legislation. The traditionalist will insist that statutes like these are still law, while the functionalist will say that they are not law at all because they are never invoked.

Furthermore, when law is viewed as a pragmatic effort to cope with contemporary problems, the primary problem is less that of identifying what must be controlled than that of ascertaining the most effective means of achieving control over that minority in the group which does not conform through group pressures or inculcation of group standards. Therefore, according to the functional approach, controls in the nature of license revocation, administrative penalties, and, in some instances, preventive detention are usually far more efficient means of control than are criminal penalties. There is implicit, if not explicit, in this view a repudiation of the classical deterrent theory, according to which the threat of future harshness administered through legal agencies outweighs the immediate sense of pleasure or benefit that the actor contemplates as a result of his act. In short, in a society-oriented framework of criminal law, one identifies first the interest or value that the group wishes to promote, second the most efficient means of effecting promotion of the value, and last the most effective methods of either rehabilitating the offender or segregating him indefinitely from the community.

Criminal codes are generally organized according to one of two patterns. One is an alphabetical listing of offenses. This has the advantage of any good index, that is, ease of access from a known starting point; but it places definitions in strange contexts. The other, and more common, arrangement involves a division into general principles and specific problems, under the established headings “The General Part,” “The Special Part,” and a further categorization of specific crimes according to the type of harm sought to be prevented. Each crime, therefore, appears in an identifiable context that facilitates its application to concrete problems. Though in form the general part precedes the special part, a layman often finds it less difficult to comprehend criminal law concepts if he first considers concrete problems; for that reason we will start with the special part.

The special part

One primary aim of the special part is to protect the existence of government itself and its ordinary operations. Laws evidencing this aim include those against treason, sedition, counterfeiting, theft and intentional destruction of government property, obstruction of public officials in the exercise of their office, bribery, and official oppression or coercion. In addition, prohibitions against perjury safeguard the investigative functions of government.

A second major category of crimes includes crimes against public order, health, and morals: unlawful assembly, riot, interference with lawful group meetings, vagrancy, public intoxication, solicitation to sexual acts, prostitution, and traffic in obscene materials. Public health considerations underlie prohibitions against prostitution and traffic in narcotics and, to a degree, support regulation of traffic in alcoholic beverages and tobacco products. The latter two commodities, however, have such revenue potential that it is usually only the traffic in which the state has no financial interest that is outlawed.

A third very important grouping comprises crimes against the person, including intentional homicide or murder, manslaughter, assaults of various kinds, and rape; the last often includes intercourse obtained through fraud or misrepresentation of identity, as well as sexual activity with certain classes of women who are viewed as incapable of consent, such as mentally ill persons or girls below a certain age.

A fourth category is that of offenses against property. It includes theft or larceny, burglary or other criminal intrusion into premises, arson, malicious destruction of property, robbery, extortion, and forgery. In some of these offenses (e.g., arson, burglary, and robbery) protection of life and limb looms as large as or larger than protection of property, while in others (e.g., theft) only property interests are protected.

A fifth category of offenses against family relationships is common to all codes: bigamy and polygamy, incest, extramarital and nonmarital intercourse, homosexuality, abortion, infanticide, and child abuse and nonsupport.

A final grouping comprises crimes relating to businesses and occupations, including public health controls. There are few occupations that are not subjected to controls through criminal law penalties, at least in form.

The general part

The general part provides the framework into which the particular offense must fit. In some applications it indicates when the court is competent to act or has jurisdiction. It states whether the legislature has intended citizens or aliens to be penalized for acts done outside the geographical limits of the state in which trial is held (the forum state). It decrees when the state has lost the power to prosecute because of certain limitations: that is, because the period of prescription or the statute of limitations has run, or because a prior prosecution by the same state, or perhaps by another state, requires application of either the double-jeopardy concept (in Anglo-American law) or the principle of non bis in idem or that of non bis poena in idem (in the civil law).

Retroactive punishment prohibited. The general part, in civil-law codes at least, also requires that all crimes be stated in law before penalties may be imposed (the principle of nullum crimen, nulla poena sine lege). Anglo-American statutes sometimes state the same principle, but equivalent control is usually achieved indirectly through the constitutional requirement that criminal statutes not be vague and indefinite, so that a man may be apprised of the legality of projected activity before he engages in it. The common-law tradition of judge-created criminal law, however, transgresses this principle. An expansion of criminal law by judicial decision is retroactive in the case in which the decision is given. What is forbidden to the legislature is thus assumed proper for a court. Perhaps all one can say in justification of this is that the extension of doctrine is usually so gradual that there may be very little hardship in most cases and that in fact the same process occurs in civil law, in which the broad terms of a statute are often expanded by judicial interpretation. The conceptual difference, however, is still appreciable. What is common to both systems is the difficulty of developing a meaningful application and adaptation of succinct formulations of law to the amorphous context of the society within which legal rules are to be utilized.

Elements of an offense. The general part defines the structure of a crime: it requires that there be an act, including an omission or failure to act— accompanied by a certain subjective state of mind (intent, or mens rea)—by a person, including legal entities like corporations or associations, that causes a specified harm or injury for which penalties may be imposed through prosecution. This provides a guide to interpretation of each crime in the special part.

Intent element of crimes. The sections on intent, or mens rea, embody the greatest verbal differences between the Anglo—American and the Roman-derived systems of law. Both systems punish acts done purposely to inflict any injury that the penal statute is designed to prevent. The act may warrant punishment if the actor knows there is a substantial likelihood that the harm or injury delineated in the statute will be inflicted if he acts; this principle is embodied in the dolus eventualis concept of the civil law and the “reckless disregard of known consequences” of Anglo-American law. But the systems diverge in the matter of whether (a) “negligence” can be the basis for exacting criminal penalties or (b) “strict” or “absolute” liability can be imposed for the doing of an act, despite the actor’s unawareness of its dangerousness or undesirability. Anglo-American common law has long utilized negligence as a basis of criminal liability in manslaughter and certain other offenses against the person, but it has not used it in property crimes, even serious crimes like arson. Legislatures, however, have increasingly included negligence as a basis for imposing punishment for property crimes and offenses involving government activities. Moreover, “strict liability” is a common ingredient of crimes regulating the economy. An entrepreneur, for example, may be liable to criminal penalties if the commodity that he produces does not meet statutory requirements, though he may in good faith have believed that it does. In contrast, most civil-law commentators deny that strict liability is either possible under their law or compatible with criminal-law theory, penalizing as it does ignorance and not purpose.

Is the civil-law position preferable? As a matter of abstract criminal-law theory, the careless person is certainly not as “evil” as one who either intends harm or is willing to ignore the almost certain consequences of his activity, that is, consequences of which he is fully aware. Criminal penalties are crude instruments to promote knowledge or caution. If, however, enforcement is stressed, strict liability may be necessary in some cases. In most serious offenses, purpose may be inferred from activity. For example, if a man stabs another, he usually does so with intent to kill or severely injure. But one who sells a commodity may not know that it is adulterated or mislabeled; common experience may not equate act with intent. To require the state to prove “intent” in the first instance may not significantly impair the enforceability of the statute, because the act usually purports intent. A similar requirement, however, may render the second statute totally unenforceable. If a standard of “strict liability” is imposed, by which knowledge of impropriety is rendered superfluous, prosecutions are easy; this position assumes that most persons in fact know what they are doing, and therefore only a few “innocent” criminals are numbered among the many “guilty.”

Nevertheless, to give the “innocent” an opportunity to explain, should the legislature, as an alternative, make the doing of an act “prima-facie evidence” of the required intent, and permit the defendant to persuade the tribunal that he did not in fact have the mens rea (guilty mind) which merits imposition of criminal penalties? Certainly many American statutes embody this compromise between the ideals of pure legal theory and the realities of law enforcement.

Furthermore, many civil-law scholars in effect evade the issue by equating “penal law” with the “penal code,” thus completely ignoring a broad array of penal legislation (outside the penal code) that imposes strict liability or a separate code of “economic offenses” that parallels Anglo-American strict liability legislation. Though comparison of the two systems, civil and common-law, is rendered difficult because Anglo-American law embodies the jury system and the complicated doctrines of evidence law, including presumptions, which it has engendered, and the civil law does not, there is still a decided similarity in penal economic legislation in legal systems the world over, whatever the theoretician may say.

Legal significance of mistake. The general part also lists special states of mind that affect criminal responsibility. One is ignorance or mistake, of either fact or law. Mistake of fact, which means nonknowledge of a factor or circumstance known to others, affects the mental element of the crime, not the objective elements. If the actor’s error suggests lack of purpose to inflict harm, but he is punished anyway, he is punished for his ignorance only. But this can hardly be distinguished from negligence, which embodies a failure to know what the “reasonable man” would know. Therefore, if only “reasonable” mistakes of fact are taken into account as extenuating, negligence extends to all crimes. Civil-law codes usually recognize this by saying that any “honest,” that is, nonperjured, claim of mistake is to be considered in its impact on the required state of mind, unless the crime is based on negligence, in which case only a “reasonable” mistake excuses. Anglo—American law is somewhat more ambivalent: some judicial interpretations require that all mistakes be “reasonable,” but others recognize “good faith” claims of mistake.

Mistake of law involves either ignorance of the existence of the statute under which the prosecution is maintained or ignorance of a collateral doctrine of law affecting, for example, property, contracts, or marriage. Few systems permit an absolute defense based on ignorance of the existence of the criminal law under which the defendant is prosecuted, but civil-law codes commonly authorize mitigation of penalty. Collateral mistake of law that negates a required specific intent warrants acquittal, if not under a general provision to that effect, then because the trier cannot find that intent to have existed as a fact.

Mental conditions negating criminality. The other most important states of mind affecting criminal responsibility are unconsciousness, insanity, and intoxication. Civil-law codes usually state only that if a person is either unconscious or irresponsible because of insanity, mental illness, mental deficiency, and the like when he commits a criminal act, he is not to be punished. Expert data are received as a matter of course, but courts do not generally explain in detail what underlies their use of code labels of unconsciousness, mental illness, or mental deficiency.

Anglo-American law, however, has had to formulate legal tests for insanity, primarily because the jury must be formally instructed as to what “insanity” is. That term, it must be noted, is a legal, not a medical, term. The prevailing test is the so-called M’Naghten Rules, under which a man is deemed insane if he does not know that he is performing an act or, assuming he has that awareness, if he does not know that the act is “wrong,” which traditionally means legally rather than morally wrong. The original formulation of this test also included a third alternative—”insane delusion”— according to which a defendant is excused if the facts as he deludedly believed them to be would have justified an acquittal; it might be called an “insane mistake of fact” test. This test lingers on in a handful of American states. Many states have added the alternative of “irresistible impulse”: that is, if the defendant was uncontrollably impelled by his mental condition to do the act with which he is charged, he is to be viewed as non-accountable.

These tests have been violently criticized by behavioral scientists as scientifically outmoded and as embodying value judgments that a psychiatrist or psychologist cannot be called upon to make in his professional capacity. It is indisputable that expert testimony is distorted, in the typical case, because of insistence that the expert testify in conelusory terms. The emphasis on “right-wrong” and “knowledge-nonknowledge” has caused medical opinion and lay opinion to be used indiscriminately, which in turn has prevented the development of a scientifically sound concept of legal insanity. Accordingly, several new tests have been formulated, though as yet they have not been widely adopted. They stress mental defect or disorder, beyond the actor’s control, that causes the act on which the criminal charge is based. All demand qualified expert data and exclude lay opinion.

The value of these modern tests does not rest on the legal terms in which they are couched but on the freedom which they offer the expert to describe the defendant in scientific terms. A change in terminology is useful chiefly because it requires judges and lawyers to re-evaluate what they do. Statutory changes may, therefore, be in order in civil-law countries; however, there the problem in regard to the concept of legal insanity arises from legislative understatement rather than from outmoded overstatement, as in common-law countries.

Intoxication and criminal responsibility. Intoxication and the broader problem that it presents, namely addiction, are ambivalently dealt with in both civil-law and common-law systems. Whenever the defendant is identified only circumstantially, evidence of intoxication is always relevant to prove that he was not physically able to commit the crime with which he is charged. However, intoxication is relevant as a matter of formal law only when the defendant is admittedly the actor and the issue is that of his intent. Logically, if the defendant is unable because of intoxication or addiction to entertain the required state of mind, he ought not to be punished. His addiction as such would be more appropriately controlled through protective custodial treatment than through punishment. But most codes view intoxication and addiction as, if anything, aggravating factors; and thus they either require increased punishment for intoxicated persons or demand that the judge exclude from consideration the actual impact of intoxication on the defendant’s state of mind and decide the case on the assumption that the defendant was in full control of his acts.

Defenses to criminality. The general part also takes account of external circumstances that affect criminality, including duress, consent of the victim, defense of self or others, defense or protection of property, the needs of law enforcement, and other extraordinary circumstances, such as famine or extreme peril to life, that can be avoided only by acts against the life or property of others. These concepts most commonly apply to homicide and assault, though some defenses based on necessity affect property crimes. In effect, the actor’s motive for forming an otherwise prohibited intent or purpose serves to eliminate or mitigate the criminal punishment provided for the act and intent in the special part. Common-law courts recognize only certain stereotypes of necessity, like self-defense. Codes, however, may include a more general clause on necessity based on a “choice of evils,” so that the harshness of the standards in the special part may be tempered in unusual cases.

Punishable attempts. Yet another function of the general part is to identify preparatory conduct which, though it does not eventuate in the ultimate harm prohibited by one or more criminal provisions, comes close enough to warrant punishment. This is called “attempt.” Though efforts are made to develop legal standards to control its application, the concept of attempt is simply a device for extending the coverage of a criminal statute beyond its literal scope. It may be applied if the actor has done enough to evidence his criminal purpose, if his attitude and purpose suggest that he is likely to try again in the future with perhaps greater success, and if the harm which he sought to inflict is of appreciable gravity. The decision is basically one for the individual case. Conspiracy is also penalized as one form of preparatory activity, that of agreement to commit a crime.

Punishment of accomplices. The general part authorizes imposition of punishment on others than the actor himself, by imposing vicarious responsibility for the acts of the principal on those who have induced him to act, conspired with him in the conception of the act, or aided or encouraged him in its commission. Some codes reach backward into a criminal transaction to punish unsuccessful solicitation to commit a crime, and some reach forward in time to punish those who, as accessories after the fact, harbor or aid the criminal actor after the specific crime has been committed. The latter, however, is a special crime of obstructing the administration of criminal justice.

Disposition of offenders. Last, the general part grades offenses according to seriousness and creates standards by which sentence is determined in the individual case. Some civil-law codes include in this portion of the general part the so-called protective or security measures, by which a defendant is channeled into special institutions for mentally ill persons, alcoholics, or youthful offenders. Recidivism may also call for special forms of incarceration as well as increased maximum and minimum terms of imprisonment.

Criminal procedure

It is difficult to equate and compare civil-law and common-law proceedings on the basis of the legal terms that each embodies. But there are certain stages and functions common to both, even though the details of procedure differ.


The first function of criminal procedure is investigation. Civil-law codes of criminal procedure delineate fairly precisely the relative roles of police and prosecutor in investigations of crime. The primary responsibility to investigate is with the police, but the public prosecutor has power to supervise and intervene. The police have only a limited power to arrest; advance judicial authorization is required unless the offender is caught in the act or unless there are special circumstances that make it difficult or impossible to obtain judicial permission to arrest beforehand. Special statutes or regulations may permit “preventive detention,” but they are usually comprehended as one aspect of administrative law.

Civil-law codes strictly limit the period for which an arrested person can be held in police custody. A judicial order of detention is required after a few hours; this order is valid for only a brief period while a formal charge is prepared. After the filing of the formal charge, a court through a more formal proceeding may authorize continued detention pending trial. Bail or some other form of provisional release may be proper after the suspect or accused has been detained on judicial authority, but this tends to be limited to the period after formal accusation and then is at the discretion of the court.

In civil-law codes judicial control extends not only to arrest and detention but also to acquisition of evidence. Police and public prosecutors have limited power to search for and seize contraband and evidentiary material, but for the most part they must seek a judicial warrant before entering buildings or seizing matter in the hands of third parties. In some systems a special investigating judge takes the initiative of ferreting out evidence, while in other systems it is incumbent on the public prosecutor or command police officers to apply for authorization to search, specifying what is sought. Acquisition of evidence includes formal questioning of witnesses, whose statements under oath are preserved for later use. In some civil-law codes the defense may also ask that evidence be preserved for its benefit, but in others the defense may only inspect whatever the state has taken the initiative in gathering.

The Anglo-American system places much greater responsibility on the police and makes relatively little use of warrants. Warrants are available for arrest, search, or seizure, but there is no duty to apply for them. Police are authorized to arrest without warrant if they “reasonably believe” that a felony has been committed by the arrestee or if any offense is committed in their presence. If a valid arrest has been made, the arrested person and his immediate surroundings may be searched and evidentiary matter seized. If an arrest is made, the police must produce the arrestee before a magistrate within a short period of time; delays for the purpose of interrogation are usually viewed as contravening this requirement. The magistrate may then commit the arrested person, pending a preliminary hearing to determine if there is some basis for the charge levied against him. In most American jurisdictions bail must be set in all but very serious cases. Anglo—American law has done very little to develop a systematic means of impounding evidentiary material under judicial supervision. The preliminary examination or grand jury proceeding may be used for this purpose by the state, but it is not often useful to the defense. Discovery, by which one or both parties are required by court order to make evidence in its hands accessible to the opponent before trial, is in a rudimentary stage but may in time serve to permit acquisition and preservation of evidence for later trial use by either the state or the defense.

Preparation of the formal charge

The second function of criminal procedure is preparation of the formal charge. Here, too, one must identify where discretion to charge lies, for not all arrested or suspected persons are brought to trial. In some systems the police have sole control, and in all systems they in fact dispose of many cases without trial or other formal proceedings. Private citizens control some prosecutions; if, for example, prompt complaint of rape must be made by the victim, or if only the offended spouse can complain of adultery, nonaccusation by the citizen for whose benefit the criminal statute exists bars all proceedings. In most countries the public prosecutor has discretion whether to press charges, though in some instances he may have to obtain judicial concurrence. In those parts of the Anglo-American world where the grand jury survives, that body exercises substantial discretion to refuse prosecution. In some civil-law countries the police and public prosecutor are required to refer the material they have gathered, together with the draft of a pleading, to a judge or court, which then determines whether the trial shall occur. In the lastmentioned system, a person moves from “suspect” status to “accused” status to “defendant” status; where discretion is vested in police or public prosecutor, only “suspect” and “defendant” statuses are formally recognized.

If discretion is acknowledged in a legal system, controls must be placed on its exercise. Thus, though a private citizen may determine that certain cases shall not be pursued, the public prosecutor has discretion over those prosecutions which are desired by private citizens, some of which will not be carried through. A grand jury indictment can be dismissed on motion of the district attorney; on the other hand, a refusal to indict can be circumvented by presenting the same matter to another, presumably more tractable, grand jury. Sometimes a judge may order the institution of prosecution despite the prosecutor’s refusal to do so, or an advisory body of citizens may be called upon to review that refusal. Whatever the primary allocation of discretion, however, at some point the judiciary has the final word.

The code of criminal procedure also specifies the contents of the pleading. Legal rules differ primarily as to how much detailed information the defendant requires to prepare an adequate defense and as to the extent to which the pleading can be amended during the proceedings. Civil-law pleadings are usually more detailed than common-law pleadings but may also be amended and changed with greater freedom; this comparison suggests a balance of function at about the same point in each system. The defendant is not usually required to submit a formal answering pleading, but this may be modified in the case of certain special defenses, such as insanity or alibi.

Trial procedure

The third major phase of criminal procedure is trial. In each system the place of trial must be fixed. Civil-law codes permit one case to be brought simultaneously in more than one court, based on place of the crime, residence of the defendant, or place of arrest; one court is then selected on the basis of convenience. Common-law crimes are to be prosecuted where they are committed; in theory this means one court only, but in practice it permits some choice of court. The civil law provides for further transfer of a case for reasons both of convenience and of bias, while the common law usually acknowledges only the latter, and then often only if the defendant asserts it. However, the differences between the systems are less in application than they are in theory. Another factor involved in properly assigning a case for trial is the gravity of the offense: the court that is selected must, of course, be authorized by law to adjudicate criminal cases of the gravity of the offense charged.

Lay participation in criminal trials. The civil law and the common law differ in outward form in the degree of lay participation in trials. In some legal systems, particularly after a revolution, all judges are laymen; at times, indeed, the community as a group both accuses and tries, as it is reputed to have done in more primitive eras. In most modern systems, however, the judiciary is a professionally trained career group, and the issue is one of whether judges are to be joined by laymen. Some countries place sole responsibility on the judge or on a multiple-judge, or collegiate, court. Others utilize lay assessors who sit with judges over a period of weeks or months while many cases are tried. At times laymen join judges to try one case only, as voting members of the tribunal.

The Anglo-American system relies on a lay jury selected by lot to hear the particular case and to make a “final” determination of guilt. The judge supervises the conduct of the trial and instructs the jury about relevant law, while the jury determines the facts and whether, under the judge’s instructions, the defendant is guilty. However, the jury is not necessarily as independent as commonlaw tradition would have it. In minor cases there is no jury. Moreover, even if a jury sits and convicts, the trial judge may repudiate its verdict and either discharge the defendant or order retrial. Only an acquittal is final. This, however, is a safeguard to the citizen which should not be underestimated, for acquittal and the protection of the double-jeopardy concept which it produces have been very strong protections against overzealous public officials who have prosecuted minorities for their beliefs.

Procedural guarantees to the defendant. The outward trappings of the trial are also important. There has been a strong reaction in most countries against secret proceedings, so that most codes require public trial. Some civil-law statutes permit in absentia proceedings, though it is usually possible for the defendant to procure a rehearing that he can attend. In absentia proceedings are prohibited in common-law countries, except perhaps for minor traffic offenses. Moreover, the trier must be impartial. Therefore, most codes permit challenge of prejudiced judges, assessors, or jurors. It is important, at least in theory, that a defendant be represented by counsel. Certainly common-law lawyers are vocal in urging this as a primary factor in assuring fairness of trial. Whether representation by counsel is important, however, cannot be determined solely by whether a lawyer attends and participates. He may not be trained as an advocate and may view himself only as a special attaché to the court. The primary responsibility for interrogating witnesses and evaluating data may rest with the court or with the court and public prosecutor, so that defense counsel has little to do. Sometimes the controlling stage of the proceeding is at an earlier time, when evidentiary material is assembled and a decision reached whether to carry forward the prosecution. If defense counsel does not participate at this earlier stage, then his activity in the later “formal” trial has little impact on the formal adjudication of guilt by the court. The heavy reliance by the court on the data presented to it by the prosecutor at the time he institutes prosecution means that the decision to prosecute in effect guarantees a judgment of guilt. At best defense counsel may be able to call extenuating circumstances to the attention of the court. In this field, also, function and not form is important.

The two major systems differ in regard to the material received to support the final adjudication and in regard to the responsibility to marshal and present it. The common law embodies elaborate rules of evidence, by which some data can be utilized only for limited purposes and other matter cannot be used at all. The responsibility to gather and present evidence is on the person who wishes to make affirmative use of it. Evidence must be presented either through witness testimony given in open court or through documents, the authenticity and contents of which are vouched for by witnesses testifying under oath. The opponent must be given an opportunity to cross-examine the proponent’s witnesses; the defendant’s right of confrontation ensures that this be done by him or in his presence in the case of prosecution witnesses. The judge is a neutral arbiter, who intervenes in the questioning only to clarify the testimony.

In contrast, in civil-law systems the judge plays the predominant role in the trial; he weighs evidence solely in terms of its probative value, not its adrnissibility. However, whether the systems are as dissimilar in function as in form is doubtful. Strict as common-law rules of evidence may appear, most evidence can in fact be submitted either under one of the many exceptions to the rule forbidding hearsay or as “lay” opinion evidence. Though the judge may caution the jury to consider evidence for a limited purpose only, there is neither guarantee nor probability that jurors will so limit their use of it. Moreover, strict invocation of rules of evidence characterizes only the portion of the trial in which the jury participates. Strict rules of evidence do not apply to pretrial and procedural matters. No limitations apply to material bearing on sentence; the judge relies principally on hearsay documents. In the civil-law tradition, the trial aims primarily at final approval of the material gathered through earlier proceedings and at pronouncement of sentence. Thus, rules of evidence play no more useful a role in civil-law trial procedure than they do in American pretrial and postconviction proceedings; the opportunity to contest and offer counterdata is what matters most. Lay participation is also a less critical part of the system; and perhaps the distrust of the jury is less prevalent than it has been in the common-law system, so that little purpose is served by creating rules of evidence. Here, too, the differences are probably greater in form than in application.

When fact-finding ends—which in some systems, such as that of the Japanese, may be after a series of intermittent hearings—the case proceeds to judgment. In all modern systems the burden is heavily on the state to establish guilt. In the common-law tradition the jury is told that it must be persuaded of the defendant’s guilt “beyond a reasonable doubt,” while the classical statement in the civil law is that “all doubts are resolved in favor of the accused” (in dubio pro reo). Neither term is capable of precise definition, but both are similar in application, in that a man acquitted under one system would very probably have been acquitted under the other.

The form of the judgment differs in the two traditions. The common-law judgment records the bare conclusion of guilt or innocence and the sentence; no explanations of any kind are appended by either jury or judge. The civil-law judgment, in contrast, contains a fairly elaborate recital of the facts that suggest guilt, the statutory provisions that have been invoked, and the factors that have led the court to impose the particular sentence. This difference in the form of the judgment in turn indicates a functional difference. In the civil law there is no division of the proceedings into guiltascertainment and sentence-assessment; both are done simultaneously and embodied in the same judicial document. In the common-law tradition the jury ascertains guilt, and the judge then assesses sentence.


The final major phase of judicial proceedings is appeal, including extraordinary remedies after the time for ordinary appeal has elapsed. Appeals may be designed to relieve the defendant or the state from prejudicial error in earlier proceedings, to ensure procedural regularity by dictating compliance with law on the part of lower courts, or to perform a didactic function of instructing the population concerning their rights and duties under law. Anglo-American law places formal emphasis only on the first, and then solely for the defendant’s benefit. Civil-law appeals permit one review for relief against hardship, but review beyond that point promotes only regularity and purity in legal processes themselves. Both systems formally disclaim any purely didactic purpose, but in practice many American and Japanese opinions are judicial essays intended for public edification.

After judicial activity is exhausted, there may still be administrative relief against court-imposed penalties, in the form of pardon, amnesty, or parole. It is usually through these devices that society adapts its simple but sweeping rules of law to the requirements of common sense and justice in the individual case, and works a meaningful integration between criminal law and other relevant areas of law.

Criminal law and welfare law

Traditional criminal law and procedure presuppose a rational actor who exercises considerable free will. The legal order encourages acceptable choices of conduct; it contemplates that the criminal will cooperate in his own rehabilitation. If, however, the actor is totally or substantially incapable of cooperation, criminal-law processes falter and must be either adjusted or replaced. Three problems—mental disorder, addiction, and immaturity—account for much of the current difficulty in administering traditional criminal-law machinery.

Criminal law and mental illness

Mental disorder manifests itself in many ways, some of which concern only a diagnostician but others of which affect the peace and order of the community. When a mentally ill person injures other people or their property, disturbs the peace, offends community sensibilities, or acts so as to imperil himself, official activity almost certainly results. That activity becomes stereotyped, and new legal doctrines develop. Most systems of law recognize voluntary hospitalization as legal; in others the family acknowledges a responsibility to control its own mentally ill members. Some mentally ill persons, however, must be coerced into hospitalization. All legal systems, therefore, recognize some form of civil commitment, either judicial or administrative, resulting in hospitalization of the afflicted person until he may safely be released.

Nevertheless, a number of mentally ill persons will have been apprehended as “criminals” before their mental abnormality is recognized. Since their acts have already been tentatively characterized as “crimes,” ordinary civil commitment proceedings are considered inappropriate, and special procedures based on their mental condition are developed within criminal procedure itself. The defendant may be characterized as “incompetent to stand trial” because of his inability to comprehend the nature of the proceedings against him and to participate in his own defense, and thus he may be confined indefinitely in a mental institution for the “criminally insane” until an administrator certifies him “competent” and returns him for trial on the original charge. Or he may be denominated a “criminal sexual psychopath” or a “defective delinquent” under a special statute and confined to an institution, again usually a hospital for the “criminally insane.” If he is tried, he may be found “not guilty by reason of insanity” or, in some systems, “guilty but insane,” in which case, too, under a special statute he is committed to the same facility for the “criminally insane” that receives men in the preceding two categories. In yet other cases, the defendant may be found “sane” in the legal sense and sent to prison. However, from the prison he may be administratively transferred to the same institution for the “criminally insane” to which he would have gone if he had been acquitted by reason of insanity, though he remains there only for the maximum term of his sentence.

Mental abnormality ought always to be ascertained through a civil commitment proceeding, which should supplant criminal proceedings if the defendant’s otherwise criminal act is symptomatic of a pattern of activity that is caused by mental illness or abnormality. If that activity endangers public safety or order, the actor should be committed to a treatment-oriented hospital or, if no treatment is possible, to some form of custodial institution. A person too disoriented to stand trial manifests a mental condition that probably accounted for his “criminal” activity. Only the accident of arrest may explain why no civil commitment proceedings have been undertaken. To permit criminal charges to sleep while the defendant is hospitalized as “incompetent to stand trial” makes a fair trial at a later time almost impossible; prosecutorial or judicial discretion is probably not a sufficient safeguard to him. Moreover, a mentally abnormal person in a prison disrupts prison administration. Much wasted activity would be avoided if final disposition were made soon after the mentally abnormal actor has been first placed under restraint.

Reform, however, is difficult. For one thing, it is less expensive to maintain a “hospital” prison than a treatment hospital. For another, lawyers, judges, and private citizens fear any system in which psychiatrists, psychologists, and social workers make the critical diagnosis; thus, instead of supporting modifications in traditional procedure or the development of new but fair procedures, they oppose change altogether. Moreover, a treatment-oriented hospital system requires open institutions and outpatient treatment. Most citizens are apprehensive enough about “lunatics” who have been civilly committed; to contemplate that “criminal” mentally ill persons may be placed in ordinary hospitals with “civil” patients and released on outpatient status is almost unbearable.

Nonetheless, the older traditions are beginning to crumble; in many jurisdictions efforts are under way to develop a single state hospital system and early, final coordination of criminal prosecutions and civil commitments. Success, however, will require major capital expenditures, for to relabel a “prison” a “hospital” makes no major difference so far as the average inmate is concerned.

Criminal law and addiction

Another dilemma for traditional law is drug or alcohol addiction. Indeed, since addiction is increasingly viewed as symptomatic of serious mental disturbance, it may be that this is ultimately a specific instance of the broader problem of mental illness. But other explanations of addiction stress socioeconomic factors, so that addiction may have to be viewed as an independent problem in itself. Criminal law, particularly in the United States, has considered narcotics addiction a result of free choice and has relied on increasingly heavy penalties to deter citizens from using narcotics, particularly from trafficking in them. The legal significance of intoxication has already been touched on. But repression achieves only the illusion of control. Narcotics users and alcoholics constitute a fairly constant percentage of the populace, whatever the legal prohibitions may be. Prohibition, however, forces the price of narcotics upward, so that the addict must commit crime to obtain money to buy narcotics through illicit channels. Therefore, the system developed in England and western Europe, by which addicts receive drugs under medical supervision, makes pragmatic sense, if only because crimes committed by addicts for gain tend to diminish under that system. If addiction is a symptom and not a separate condition, then the causes of addiction must be isolated before addiction itself can be controlled. Exclusive reliance on the criminal law not only produces hardship in particular cases, except as unfettered police and prosecutor discretion may invisibly ameliorate it, but also fosters in the community an illusion of effective control that militates against developing more efficient means of control. Here, also, there are some signs of change, but the successful integration of criminal law processes with administrative public health and economic measures lies further in the future than integration of criminal-law and mental-health procedures.

Criminal law and immaturity

There was a time when immaturity had only limited significance in traditional criminal law: one who had not reached a certain chronological age at the time he acted was either not within the coverage of the criminal law or was presumed incapable of forming the requisite criminal intent. But the age at which full criminal responsibility was imputed was so low (usually 13 to 15 years) that many adolescents were processed through the courts and incarcerated or executed with adult criminals. The reaction to this was the creation of special juvenile courts and treatment facilities.

The new system, however, has proved at best a mixed blessing. Special detention facilities are often nothing more than juvenile prisons, in some instances with fewer educational or vocational facilities than adult prisons. In the enthusiasm for eliminating the grosser aspects of a criminal trial, important safeguards have also been discarded. Minors are often given no notice of the allegations against them, are at times not permitted to be present in court or represented by counsel, are usually not given even a summary of the data on which the court’s findings are based, and are often consigned to a custodial institution for a longer period than an adult would be for the same act. In general, there is also a failure to differentiate between juvenile neglect cases, in which some in-formality is perhaps in order, and juvenile delinquency cases, in which specific acts form the basis for an adjudication against the minor. Even in neglect proceedings the procedural rights of the parents or custodian of the child are minimized and the child disposed of on the basis of anonymous reports or the recommendations of welfare agencies whose representatives either do not appear or are not required to substantiate their reports.

A countertrend has appeared, however; there is increasing judicial scrutiny of juvenile court proceedings. This has brought about insistence on advance notice of the allegations against the parent or juvenile, participation by attorneys in the adjudicative process, and appellate review of findings, which themselves must be specific and supported by relevant data. Nevertheless, even this measure of reform is ineffective if the community does not provide adequate treatment facilities. The past history of juvenile court practice and standards forecasts the direction that new efforts to dispose of the mentally ill and the addicted may take, as well as the resources that must be expended and the procedural standards that must be created if unfairness and hardship are to be avoided.

B. J. George, Jr.

[See alsoCrime; Law; Legal systems; Penology; Punishment.]


In 1966 the American Law Institute in Philadelphia was known to be preparing a model penal code, publication of which was expected in 1967.

American Bar Foundation 1961 The Mentally Disabled and the Law: The Report on the Rights of the Mentally III. Edited by Frank T. Lindman and Donald M. Mclntyre. Univ. of Chicago Press.

The American Series of Foreign Penal Codes. Edited by Gerhard O. W. Mueller. 1961— Hackensack, N.J.: Rothman; London: Sweet & Maxwell. → Each volume contains an introductory essay by an authority on the law of the individual country concerned.

Andenaes, Johannes (1956) 1965 The General Part of the Criminal Law of Norway. Hackensack, N.J.: Rothman; London: Sweet & Maxwell. →• First published as Alminnelig strafferett.

Archbold, John F. (1853) 1962 Criminal Pleading, Evidence and Practice. 35th ed. London: Sweet & Maxwell.

Berman, Harold J. 1966 Soviet Criminal Law and Procedure; the RSFSR Codes: Introduction and Analysis. Harvard University, Russian Research Center, Study No. 50. Cambridge, Mass.: Harvard Univ. Press.

Crime and the American Penal System. 1962 American Academy of Political and Social Science, Annals 339.

Dando, Shigemitsu 1965 Japanese Law of Criminal Procedure. Hackensack, NJ.: Rothman.

Eldridge, William B. 1962 Narcotics and the Law: A Critique of the American Experiment in Narcotic Drug Control. New York: American Bar Foundation.

Feldbrugge, F. J. 1964 Soviet Criminal Law: The General Part. Volume 9: Law in Eastern Europe. Leiden (Netherlands): Sythoff.

Hall, Jerome (1935) 1952 Theft, Law and Society. 2d ed. Indianapolis, Ind.: Bobbs-Merrill.

Hall, Jerome (1947) 1960 General Principles of Criminal Law. 2d ed. Indianapolis, Ind.: Bobbs-Merrill.

International Conference on Criminal Law Administration, Chicago, 1960 1962 Police Power and Individual Freedom: The Quest for Balance. Chicago: Aldine.

Moreland, Roy 1952 The Law of Homicide. Indianapolis, Ind.: Bobbs-Merrill.

Moreland, Roy 1959 Modern Criminal Procedure. Indianapolis, Ind.: Bobbs-Merrill.

Morris, Norval; and Howard, Colin 1964 Studies in Criminal Law. Oxford: Clarendon.

Mueller, Gerhard O. W. (editor) 1961 Essays in Criminal Science. Hackensack, N.J.: Rothman; London: Sweet & Maxwell.

Perkins, Rollin M. 1957 Criminal Law. Brooklyn, N.Y.: Foundation Press.

Williams, Glanville (1953) 1961 Criminal Law: The General Part. 2d ed. London: Stevens.

Criminal Law

views updated May 21 2018


A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.

The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punishments. In contrast, criminal procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which government enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter.

Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infractions, are often called violations and are considered a part of criminal law.

The power to make certain conduct illegal is granted to Congress by virtue of the necessary and proper clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.

State legislatures have the exclusive and inherent power to pass a law prohibiting and punishing any act, provided that the law does not contravene the provisions of the U.S. or state constitution. When classifying conduct as criminal, state legislatures must ensure that the classification bears some reasonable relation to the welfare and safety of society. Municipalities may make designated behavior illegal insofar as the power to do so has been delegated to them by the state legislature.

Laws passed by Congress or a state must define crimes with certainty. A citizen and the courts must have a clear understanding of a criminal law's requirements and prohibitions. The elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness.

In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms. A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void. Courts will not hold a person criminally responsible for conduct that could not reasonably be understood to be illegal. However, mere difficulty in understanding the meaning of the words used, or the ambiguity of certain language, will not nullify a statute for vagueness.

A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute is expressly repealed by the legislature, but some of its provisions are at the same time re-enacted, the re-enacted provisions continue in force without interruption. If a penal statute is repealed without a saving clause, which would provide that the statute continues in effect for crimes that were committed prior to its repeal, violations committed prior to its repeal cannot be prosecuted or punished after its repeal.

The same principles govern pending criminal proceedings. The punishment that is provided under a repealed statute without a saving clause cannot be enforced, nor can the proceeding be prosecuted further, even if the accused pleads guilty. A court cannot inflict punishment under a statute that no longer exists. If a relevant statute is repealed while an appeal of a conviction is pending, the conviction must be set aside if there is no saving clause. However, once a final judgment of conviction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is based does not require reversal of the judgment.

Generally, two elements are required in order to find a person guilty of a crime: an overt criminal act and criminal intent. The requirement of an overt act is fulfilled when the defendant purposely, knowingly, or recklessly does something prohibited by law. An act is purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result. To act knowingly means to do so voluntarily and deliberately, and not owing to mistake or some other innocent reason. An act is reckless when a person knows of an unjustifiable risk and consciously disregards it.

An omission, or failure to act, may constitute a criminal act if there is a duty to act. For example, a parent has a duty to protect his or her child from harm. A parent's failure to take reasonable steps to protect a child could result in criminal charges if the omission were considered to be at least reckless.

Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal. However, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges. negligence gives rise to criminal charges only if the defendant took a very unreasonable risk by acting or failing to act.


Criminal intent must be formed before the act, and it must unite with the act. It need not exist for any given length of time before the act; the intent and the act can be as instantaneous as simultaneous or successive thoughts.

A jury may be permitted to infer criminal intent from facts that would lead a reasonable person to believe that it existed. For example, the intent to commit burglary may be inferred from the accused's possession of tools for picking locks.

Criminal intent may also be presumed from the commission of the act. That is, the prosecution may rely on the presumption that a person intends the natural and probable consequences of his or her voluntary acts. For example, the intent to commit murder may be demonstrated by the particular voluntary movement that caused the death, such as the pointing and shooting of a firearm. A defendant may rebut this presumption by introducing evidence showing a lack of criminal intent. In the preceding example, if the murder defendant reasonably believed that the firearm was actually a toy, evidence showing that belief might rebut the presumption that death was intended.

Proof of general criminal intent is required for the conviction of most crimes. The intent element is usually fulfilled if the defendant was generally aware that he or she was very likely committing a crime. This means that the prosecution need not prove that the defendant was aware of all of the elements constituting the crime. For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that the defendant knew the precise quantity. Other examples of general-intent crimes are battery, rape, kidnapping, and false imprisonment.

Some crimes require a specific intent. Where specific intent is an element of a crime, it must be proved by the prosecution as an independent fact. For example, robbery is the taking of property from another's presence by force or threat of force. The intent element is fulfilled only by evidence showing that the defendant specifically intended to steal the property. Unlike general intent, specific intent may not be inferred from the commission of the unlawful act. Examples of specific-intent crimes are solicitation, attempt, conspiracy, first-degree premeditated murder, assault, larceny, robbery, burglary, forgery, false pretense, and embezzlement.

Most criminal laws require that the specified crime be committed with knowledge of the act's criminality and with criminal intent. However, some statutes make an act criminal regardless of intent. When a statute is silent as to intent, knowledge of criminality and criminal intent need not be proved. Such statutes are called strict liability laws. Examples are laws forbidding the sale of alcohol to minors, and statutory rape laws.

The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and arson.

Felony-murder statutes evince a special brand of transferred intent. Under a felony-murder statute, any death caused in the commission of, or in an attempt to commit, a predicate felony is murder. It is not necessary to prove that the defendant intended to kill the victim. For example, a death resulting from arson will give rise to a murder charge even though the defendant intentionally set the structure on fire without intending to kill a human being. Furthermore, the underlying crime need not have been the direct cause of the death. In the arson example, the victim need not die of burns; a fatal heart attack will trigger a charge of felony murder. In most jurisdictions, a death resulting from the perpetration of certain felonies will constitute first-degree murder. Such felonies usually include arson, robbery, burglary, rape, and kidnapping.


Malice is a state of mind that compels a person to deliberately cause unjustifiable injury to another person. At common law, murder was the unlawful killing of one human being by another with malice aforethought, or a predetermination to kill without legal justification or excuse. Most jurisdictions have omitted malice from statutes, in favor of less-nebulous terms to describe intent, such as purpose and knowing.

Massachusetts, for example, has retained malice as an element in criminal prosecutions. Under the General Laws of the Commonwealth of Massachusetts, Chapter 265, Section 1, malice is an essential element of first- and second-degree murder. According to the Supreme Judicial Court of Massachusetts malice is a mental state that "includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow" (Commonwealth v. Huot, 403 N.E.2d 411 [1980]).


Motives are the causes or reasons that induce a person to form the intent to commit a crime. They are not the same as intent. Rather, they explains why the person acted to violate the law. For example, knowledge that one will receive insurance funds upon the death of another may be a motive for murder, and sudden financial difficulty may be motive for embezzlement or burglary.

Proof of a motive is not required for the conviction of a crime. The existence of a motive is immaterial to the matter of guilt when that guilt is clearly established. However, when guilt is not clearly established, the presence of a motive might help to establish it. If a prosecution is based entirely on circumstantial evidence, the presence of a motive might be persuasive in establishing guilt; likewise, the absence of a motive might support a finding of innocence.


Defenses Negating Criminal Capacity To be held responsible for a crime, a person must understand the nature and consequences of his or her unlawful conduct. Under certain circumstances, a person who commits a crime lacks the legal capacity to be held responsible for the act.

Examples of legal incapacity are infancy, incompetence, and intoxication.

Children are not criminally responsible for their actions until they are old enough to understand the difference between right and wrong and the nature of their actions. Children under the age of seven are conclusively presumed to lack the capacity to commit a crime. Between the ages of seven and 14, children are presumed to be incapable of committing a crime. However, this presumption is not conclusive; it can be rebutted by the prosecution through the admission of evidence that the child knew that what he or she was doing was wrong. Anyone over the age of 14 is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity.

Should More Crimes Be Made Federal Offenses?

Enforcement of criminal laws in the United States has traditionally been a matter handled by the states. The federal government, conversely, has typically limited itself to policing only crimes against the federal government and interstate crime. This is just one expression of the U.S. system of federalism, the notion that the federal government exists in tandem with the states and does not, without necessity, deprive states of their powers. The tenth amendment to the U.S. Constitution is an example of federalism at work. That amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Near the end of the twentieth century, however, Congress passed a host of federal laws that directly overlap with existing state criminal laws. Such laws include the Anti-Car Theft Act of 1992, the Child Support Recovery Act of 1992, the Animal Enterprise Protection Act of 1992, and new criminal laws on arson, narcotics and dangerous drugs, guns, money laundering and reporting, domestic violence, environmental transgressions, career criminals, and repeat offenders. As a result, in 1998, the number of criminal prosecutions in federal courts increased by 15 percent. The increase was nearly three times the increase in federal criminal prosecutions in 1997.

In a Report of the Federal Judiciary issued at the end of 1998, U.S. Supreme Court Chief Justice william h. rehnquist criticized the congressional movement toward federalizing the criminal justice system. "Federal courts were not created to adjudicate local crimes," Rehnquist instructed, "no matter how sensational or heinous the crimes may be." Rehnquist noted the tremendous toll that federalization of crime was exacting on the federal judiciary, and he decried the damage it was doing to the concept of federalism: "The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system." According to Rehnquist, the problem was political in nature; senators and representatives in Congress were using the act of lawmaking to win or keep their seats: "The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in this particular area and, ultimately, whether we want most of our legal relationships decided at the national rather than local level."

In his 1998 report, Rehnquist cited a report on federal courts issued by the 1995 judicial conference of the united states. The Judicial Conference recommended that federal courts be used for only five types of cases: 1) offenses against the government or its inherent interests; 2) criminal activity with substantial multi-state or international aspects; 3) criminal activity involving complex commercial or institutional enterprises most effectively prosecuted under federal resources or expertise; 4) serious high level or widespread state or local government corruption; and 5) criminal cases raising highly sensitive local issues. "Although Congress need not follow the recommendations of the Judicial Conference," Rehnquist wrote, "this Long-Range Plan is based not simply on the preference of federal judges, but on the traditional principle of federalism that has guided the country throughout its existence."

Concern over the federalization trend spread during the late 1990s. The Criminal Justice Section of the american bar association (ABA) organized a task force—the Task Force on the Federalization of Criminal Law—to look into the matter. In 1998, the task force issued a report in which it criticized the trend. Victor S. (Torry) Johnson, a representative of the National District Attorneys Association (NDAA) on the task force, declared in Prosecutor, "By trying to fight street crime through federal legislation, Congress misleads the public into believing that a national response will be effective and that the problem will be solved with federal intervention." Congress then fails to provide enough federal funding to prosecute all the new laws, creating a situation in which the efforts of local law enforcement "are undermined by the unrealistic expectations created by Congress' well-publicized enactments."

In his 1999 article for Corrections Today, James A. Gondles Jr., executive director of the American Correctional Association, lamented the introduction of low-level, local criminals into the federal system. According to Gondles, mixing such prisoners with big-time federal criminals blurs the jurisdictional line and makes it "more difficult for those at the state and local levels to do their jobs."

Not everyone is troubled by the federalization of criminal law enforcement. Proponents of federal criminal laws argue that they are necessary in an increasingly mobile society. Crime tends to span more than one state and even local crime can have effects which cross state boundaries. In his article for the Hastings Law Journal, Rory K. Little, a professor of law at the University of California, Hastings College of Law, defended the increase in federal crimes as a protection against the inability of states to catch and prosecute all criminals. If the quality of justice is better in the federal courts, Little opines, "then problems of crime cannot be ignored federally while state criminal justice systems slowly sink and justice fails."

A U.S. Supreme Court decision in March 1999 constituted an approval of increased federal authority over crime. In United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), Jacinto Rodriguez-Moreno kidnapped a drug associate and took him from Texas to New Jersey, then to New York, and finally to Maryland. Rodriguez-Moreno was charged with, among other crimes, kidnapping and using and carrying a firearm in relation to a kidnapping, an act that violated 18 U.S.C.A. § 924(c)(1). Section 924(c)(1) makes it a crime to use or carry a firearm during, and in relation to, any crime of violence. Rodriguez-Moreno was tried in New Jersey on the charges, even though he did not have a gun in New Jersey.

Rodriguez-Moreno, who did not want to be tried in New Jersey, argued that the statute did not allow the federal government to prosecute him for the § 924 crime in New Jersey because he did not commit the crime in that state. The Court rejected the argument, holding that because the crime of violence (kidnapping) continued through several states, prosecution was proper in any district where the crime of violence was committed, even if the firearm was used or carried in only one state. The decision made it easier for federal prosecutors to pick and choose the venues for their cases.

further readings

"Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes." 1999. Prosecutor (March/April).

"Federalization of Crimes: NDAA's Representative Reports on ABA's Federalization Task Force." 1999. Prosecutor (March/April).

Gondles, James A. 1999. "The Federalization of Criminal Justice." Corrections Today (April).

Little, Rory K. 1995. "Myths and Principles of Federalization." Hastings Law Journal (April).


Federal Courts; State Courts; States' Rights.

All states have juvenile courts, which are separate from criminal courts. Juveniles who are accused of a crime are tried in these courts as delinquent children, rather than as criminal defendants. This alternative prevents children from invoking the defense of infancy. In juvenile courts, criminal charges lead to an adjudication rather than prosecution, because the aim of juvenile courts is to rehabilitate, rather than to punish. In the 1990s, some state legislatures passed laws to make it easier to prosecute juveniles in adult courts, especially in cases involving violent crimes.

Insane persons cannot, in a legal sense, form the intent necessary to commit a crime. They are not, therefore, criminally responsible for their actions. Courts have applied a variety of legal tests to determine the mental state of a criminal defendant who claims that he or she was insane at the time of the alleged crime. One test is the m'naghten rule, which was originally used by an English court in the criminal prosecution of Daniel M'Naghten.

M'Naghten had an insane delusion that the prime minister of England, Sir Robert Peel, was trying to kill him. Mistaking the prime minister's secretary, Edward Drummond, for the prime minister, M'Naghten killed the secretary. At his trial, M'Naghten asserted that he had been insane when he committed the crime. The jury accepted his argument and acquitted him. From that decision evolved the M'Naghten test, under which, in order to disclaim criminal responsibility, a defendant must be affected by a disease of the mind at the time he or she commits the act. The disease must cause the ability to reason to become so defective that the person does not know the nature and quality of the act or else does not know that the act is wrong. A successful invocation of the M'Naghten defense results in commitment to a mental institution for treatment, rather than imprisonment.

A number of states prefer the "irresistible impulse" test as the standard for determining the sanity of a criminal defendant. If the defendant is suffering from a mental disease that prevents control of personal conduct, he or she may be adjudged not guilty by reason of insanity, even if he or she knows the difference between right and wrong.

The model penal code of the American Law Institute established another test of insanity that has been adopted by almost all of the federal courts and by numerous state legislatures. Under the Model Penal Code test, a person is not responsible for criminal conduct if, at the time of such conduct, he or she lacks the capacity either to appreciate the criminality or the wrongfulness of the conduct, or to conform his or her conduct to the requirement of law. This lack-of-capacity excuse does not apply to abnormalities demonstrated by a repetitive pattern of illegal or violent acts.

Some states employ the "lack-of-substantial-capacity" test. The phrase "lacks substantial capacity" is a qualification of the M'Naghten rule and the irresistible-impulse test, both of which require the total absence of capacity. This test also requires a showing of causality. The defense is not established merely by a showing of a mental disease; rather, it is established only if, as a result of the disease, the defendant lacks the substantial capacity that is required in order to hold him or her criminally responsible. For example, pyromania may be a defense to a charge of arson, but it is no defense to a charge of larceny. An irresistible impulse arising from anger, jealousy, or a desire for revenge does not excuse a defendant from criminal responsibility unless such emotions are part of the mental disease that caused the crime.

Generally, voluntary intoxication from drugs or alcohol does not excuse a criminal act. Involuntary intoxication is, however, a valid defense. It occurs when a person is forced to take an intoxicating substance against his or her will, or does so by mistake. If a defendant's involuntary intoxicated condition causes a criminal act, the defendant will not be convicted if, because of the intoxication, he or she is unable to appreciate the criminality of the conduct.

Fair Warning Defense The due process Clauses contained in the Fifth and Fourteenth Amendments to the U.S. Constitution require that before a defendant may be prosecuted for criminal conduct, the law must make clear which conduct is criminal. Justice oliver wendell holmes articulated the standard when he wrote that a criminal statute must give "fair warning … in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L. Ed. 816 (1931)."

The U.S. Supreme Court had the opportunity to revisit the fair-warning requirement in United States. v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). Lanier was a case involving a prosecution under 18 U.S.C.A. § 242, a Reconstruction-era civil rights law that makes it a federal crime to deprive another of "any rights, privileges, or immunities secured or protected by the constitution or laws of the United States" while acting "under color of any law."

Congress originally passed the law to afford a federal right in federal courts for situations when, by reason of prejudice, passion, neglect, intolerance, or otherwise, state courts might not be as vigilant as federal courts in protecting the rights that are guaranteed by the fourteenth amendment to the U.S. Constitution.

Traditionally, Section 242 had been primarily invoked against police officers and prison guards. The Lanier case arose from allegations of sexual misconduct against the sole state Chancery Court judge for two rural counties in western Tennessee, David Lanier. The trial record shows that from 1989 to 1991, while Lanier was in office, he sexually assaulted several women in his judicial chambers.

Lanier's most serious assault involved a woman whose divorce proceedings had come before his chancery court and whose daughter's custody remained subject to his jurisdiction. When the woman applied for a secretarial job at Lanier's courthouse, Lanier interviewed her. As the woman got up to leave, Lanier grabbed her, sexually assaulted her, and finally committed oral rape.

On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Youth Services officer, and a local coordinator for a federal program who had been in Lanier's chambers to discuss a matter affecting the same court.

Lanier was later charged with 11 violations of Section 242. Each count of the indictment alleged that Lanier, acting willfully and under color of Tennessee law, had deprived the victims of the right to be free from willful sexual assault. Before trial, Lanier moved to dismiss the indictment on the ground that Section 242 is void for vagueness. The district court denied the motion.

The jury returned verdicts of guilty on seven counts, and not guilty on three (one count having been dismissed at the close of the prosecution's case). Lanier was then sentenced to consecutive maximum terms totaling 25 years.

A panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the convictions and sentence, United States v. Lanier, 33 F.3d 639 (6th Cir. 1994), but the full court vacated that decision and granted a rehearing en banc. United States. v. Lanier, 43 F.3d 1033 (1995). On rehearing, the full court set aside Lanier's convictions for "lack of any notice … that this ambiguous criminal statute [i.e., Section 242] includes simple or sexual assault crimes within its coverage." United States v. Lanier, 73 F.3d 1380 (6th Cir. 1996).

Specifically, the Sixth Circuit held that criminal liability may be imposed under Section 242 only if the constitutional right said to have been violated is first identified in a decision of the U.S. Supreme Court (not any other federal or state court), and only when that right has been held to apply in "a factual situation fundamentally similar to the one at bar."

The Sixth Circuit then said it could not find any decision of the U.S. Supreme Court that recognized, under Section 242, a right to be free from unjustified assault or invasions of bodily integrity in a situation "fundamentally similar" to those circumstances under which Lanier was charged.

In the absence of such a decision, the Sixth Circuit said that Tennessee had violated Lanier's due process right to be fairly warned that particular conduct is prohibited and carries with it the possibility for criminal punishment. Accordingly, the Sixth Circuit reversed the judgment of conviction and instructed the trial court to dismiss the indictment.

The state of Tennessee appealed, and the U.S. Supreme Court reversed the Sixth Circuit, observing that there are three manifestations of the "fair warning requirement." First, the "vagueness doctrine" bars enforcement of statutes that either forbid or require an act in terms that are so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. Second, the Court wrote that the "canon of strict construction of criminal statutes" ensures fair warning by limiting application of ambiguous criminal statutes to conduct that is clearly covered. Third, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. In other words, a trial court cannot "clarify" a statute by supplying terms through its own interpretation of the law, when those terms were not clearly contemplated by the statutory language chosen by the legislature.

However, the Court emphasized that the due process fair-warning requirement does not require that prohibited criminal conduct be previously identified by one of its own decisions and held to apply in a factual situation "fundamentally similar" to the defendant's case at bar. Instead, the Court wrote, "all that can usefully be said about criminal liability under [Section 242] is that [liability] may be imposed for deprivation of constitutional right if, but only if, in light of preexisting law, unlawfulness under the constitution is apparent."

The Court then remanded the case to the Sixth Circuit for further proceedings in light of its opinion. After reading the high court's opinion, the Sixth Circuit vacated its earlier decision and ordered Lanier to begin serving his sentence. One Sixth Circuit judge dissented, criticizing the U.S. Supreme Court for not writing a clearer opinion that articulated what constituted "apparent" unlawful conduct.

Exculpatory Defenses Exculpatory defenses are factors that excuse a competent person from liability for a criminal act. Duress is an exculpatory defense. One who commits a crime as a result of the pressure of an unlawful threat of harm from another person is under duress and may be excused from criminal liability. At trial, whether the defendant was under duress is a question of fact for the judge or jury. The defense of duress was invoked in the 1976 trial of Patricia Campbell Hearst, the young daughter of wealthy newspaper owners Randolph A. Hearst and Catherine C. Hearst. On February 4, 1974, Patricia Hearst was kidnapped by the Symbionese Liberation Army (SLA) and held for the unusual ransom of food distribution to the poor. Shortly after the abduction, Hearst sent a recorded message to her parents, in which she announced that she had become a social revolutionary.

On April 15, Hearst participated in a bank robbery with members of the SLA. She was arrested in September 1975 and tried for armed bank robbery. At trial, Hearst's lawyers argued, in part, that Hearst's participation in the robbery had been caused by duress. Hearst testified that she had feared for her life as she had stood inside the Hibernia Bank. On cross-examination, Hearst invoked her fifth amendment privilege against self-incrimination 42 times. The refusal to answer so many prosecution questions might have damaged Hearst's credibility, and the jury did not accept her argument of duress. Hearst was convicted and sentenced to seven years in prison. (President jimmy carter commuted her sentence on February 1, 1979, and ordered her release from prison.)

entrapment is another exculpatory defense to criminal charges. Entrapment exists if a law enforcement officer induces a person to commit a crime, for the purpose of instituting a criminal prosecution against that person. It is not available if law enforcement merely provides material for the crime.

Mistakes of law or fact are seldom successful defenses. Generally, a mistake of law is applicable only if the criminal statute was not published or made reasonably available prior to the act; the accused reasonably relied on the contrary teaching of another statute or judicial decision; or, in some jurisdictions, the accused reasonably relied on contrary official advice or a contrary official interpretation. A mistake of fact may excuse a defendant if the mistake shows that the defendant lacked the state of mind required for the crime. For example, in a specific-intent crime such as embezzlement, evidence that the accused was unaware of transfers into his or her own bank account would negate the specific criminal intent required for conviction.

Justification defenses include necessity, self-defense, defense of others, and defense of property. If a person acts to protect the life or health of another in a reasonable manner and with no other reasonable choice, that person may invoke the defense of necessity. According to the Model Penal Code, self-defense and defense of others are permissible when it reasonably appears necessary that force is required to defend against an aggressor's imminent use of unlawful force. Nondeadly force may be used in order to retain property, and deadly force may be used only to prevent serious bodily harm.


Under common law, when a person committed a major crime that included a lesser offense, the latter merged with the former. This meant that the accused could not be charged with both crimes. The modern law of merger applies only to solicitation and attempt. One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Likewise, a person who attempts and completes a crime may not be convicted of both the attempt and the completed crime.


An attempt to commit a crime is conduct intended to lead to the commission of the crime. It is more than mere preparation, but it falls short of actual commission of the intended offense. An intent to commit a crime is not the same as an attempt to commit a crime. Intent is a mental quality that implies a purpose, whereas attempt implies an effort to carry that purpose or intent into execution. An attempt goes beyond preliminary planning and involves a move toward commission of the crime.

As a general rule, an attempt to commit a crime is a misdemeanor, whether the crime itself is a felony or a misdemeanor. However, in a case of violent crime, an attempt may be classified as a felony. Attempted murder and attempted rape are examples of felonious attempts. In an attempt case, the prosecution must prove that the defendant specifically intended to commit the attempted crime that has been charged. General intent will not suffice. For example, in an attempted-murder case, evidence must show a specific intent to kill, independent from the actual act, such as a note or words conveying the intent. In a murder case, intent may be inferred from the killing itself.


When two or more persons act together to break the law, conspiracy is an additional charge to the intended crime. For example, if two persons conspire to commit robbery, and they commit the robbery, both face two charges: conspiracy to commit robbery and robbery.

further readings

Jonathan Clough, and Carmel Mulhern. 1999. Criminal Law. Sydney: Butterworths.

Kaplan, John, and Robert Weisberg. 1991. Criminal Law: Cases and Materials. 2d ed. Boston: Little, Brown.

McMahon, Katherine E. 1993. "Murder, Malice, and Mental State: A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama." Massachusetts Law Review (June).


Juvenile Law.

Criminal Law

views updated May 11 2018

Criminal Law

A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.

Whorton v. Bockting

The U.S. Supreme Court periodically announces a new rule of criminal law or procedure that could affect thousands of persons previously convicted under the old rule of law. The Court has established standards for determining whether those previously convicted, and whose direct appeals had been exhausted before the date of the ruling, may seek to reverse their convictions. The Supreme Court, in Whorton v. Bockting, __U.S.__, 127 S.Ct. 1173, __L.Ed.2d __ (2007), held that a 2004 rule dealing with the Sixth Amendment's Confrontation Clause was not a "watershed rule" that implicated the fairness and accuracy of criminal proceedings. Therefore, those persons convicted under the old rule could not collaterally attack their convictions using the new rule.

Marvin Bockting collaterally attacked his conviction for the sexual assault of the six-year-old daughter of his wife. Bockting and his wife Laura lived in Las Vegas, Nevada with their three-year-old daughter Honesty and Laura's daughter Autumn. Autumn told her mother that Bockting had forced her to engage in numerous sex acts with him. Laura kicked Marvin out of the house and took Autumn to the hospital for a physical examination. The Las Vegas police de-partment's investigator for sexual assaults tried to interview Autumn but found her too upset to talk about the assaults. The officer then ordered a rape examination, which revealed strong physical evidence of sexual assault. Two days later the investigator interviewed Autumn in the presence of her mother. This time she gave detailed descriptions of the sexual assaults committed by Bockting. The police then arrested him for sexual assault. At the preliminary hearing Autumn testified but she became upset when asked about the assaults. She first said that Bockting had touched her in way that was wrong but then backtracked, saying she couldn't remember how he had touched her or what she had told the mother or the investigator. The court was persuaded by the testimony of the mother and the investigator to hold Bockting for trial.

At trial the judge determined that Autumn was too distressed to testify. Under Nevada state law the judge found sufficient evidence of reliability to allow the investigator and Laura Bockting to recount Autumn's statements. Marvin Bockting's lawyer had objected, arguing that the Confrontation Clause barred the admission of this evidence. The defendant took the stand in his own defense and denied that he had assaulted Autumn. He claimed that Autumn had acquired some knowledge about sexual acts because she had seen him and her mother engaging in sexual intercourse and had become familiar with sexual terms. The jury convicted Bockting on three counts of sexual assault on a minor under the age of 14 and he was given a life sentence.

Bockting's conviction was upheld by the Nevada Supreme Court in 1993. The court applied a U.S. Supreme Court precedent concerning the admission of out-of-court statements. This precedent held that the Confrontation Clause permitted the admission of a hearsay statement where the circumstances surrounding the making of the statements provided "particularized guarantees of trustworthiness." The Nevada Supreme Court believed Autumn's initial statements to her mother, her recitations to the investigator, and her use of anatomically correct dolls to demonstrate the assaults justified the admission of the statements. Bockting then filed for a writ of habeas corpus in federal court, again arguing that the state court decision violated his Confrontation Clause rights. The district court rejected his argument and Bockting appealed to the Ninth Circuit Court of Appeals. While his appeal was pending the Supreme Court overruled its Confrontation Clause precedent in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court held that "statements of witnesses absent from trial" were admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." Bockting argued to the Ninth Circuit that if Crawford had been applied to his case Autumn's out-of-court statements would not have been admitted and the jury would not have convicted him. The Ninth Circuit ruled that Crawford could be applied retroactively to cases on collateral review and granted Bockting his petition. The Supreme Court agreed to review this decision because it conflicted with every other circuit court of appeals and every state supreme court that had addressed the issue.

The Court, in a unanimous decision, reversed the Ninth Circuit. Justice Samuel Alito, writing for the Court, noted that the Court had laid out a framework for determining whether a rule should be applied retroactively to judgments in criminal cases that are already final on direct review. A new rule is generally applicable only to cases that are still on direct review. In this case Crawford was a new rule because "it was not dictated by the governing precedent at the time when the respondent's conviction became final." Having established that Crawford was a new rule, Alito stated that under the framework the rule cannot be applied to a collateral attack on a Bockting's conviction unless it is a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Since the framework had been established no new rule had achieved watershed status.

The Crawford rule failed to satisfy the requirement that it prevent an "impermissibly large risk of an inaccurate conviction." It was not enough if the rule improved the accuracy of trial or enhanced the reliability of evidence. In this case Crawford had overruled the prior precedent because the old rule was "inconsistent with the original understanding of the meaning of the Confrontation Clause." The Court did not make the new rule to improve the "accuracy of fact finding in criminal trials. The Crawford rule also did not change the Court's "bedrock procedural elements essential to the fairness of a proceeding." A new procedural rule could not meet this requirement if it was based on a "bedrock" right. Though this new rule was "certainly important" it did not approach the establishment of the right of indigents charged with felonies to have a court-appointed lawyer announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Therefore the new rule in Crawford could not be applied to Bockting's case.

Law Enforcement Using YouTube to Catch Criminals

Law enforcement officials in some areas are taking advantage of the popularity of online video sites, such as YouTube, to catch criminals. These officials post such information as the clips of surveillance cameras, and then send the link to groups of people who might be able to identify suspects that have been captured on the video. In some instances, several thousand people have seen the video clips, and the tactic has led to successful arrests.

The founders of YouTube launched the site in February 2005, and it was an instant hit on the Internet. The site allows user to upload video clips, which are then processed and converted to a format that can be seen on most Web browsers. By some estimates, the site has more than 70 million unique viewers per day. YouTube became so popular that Internet giant Google bought the company in October 2006 for $1.65 billion. Dozens of clone sites have also popped up on the Internet since the birth of YouTube.

Postings of mug shots and other pictures of suspects for the public to see is, of course, a tactic long used by law enforcement. It is also common for police to share videos and photos between departments. However, broadcasts of these videos and photos on the Internet has not been a common practice. In such places as Franklin, Massachusetts, which has a population of about 30,000, the Internet can broaden the range of people who might be able to identify suspects in videos shot by security cameras.

In December 2006, the Franklin police department posted on YouTube one of these videos showing two suspects in a stolen credit card case. The clip shows the two men standing in line at a Home Depot less than an hour after stealing a credit card from a car parked outside a fitness center. The faces of the two men are not clear on the 30-second clip, but it provides enough detail that the men are identifiable. After posting the clip, officers emailed the link to the clip to about 300 people and organizations, indicating that the department sought these men in connection with the crime.

"You don't have to be a technology wizard to figure out how to watch a video on YouTube," said officer Brian Johnson of the Franklin Police Department. He also noted, "You never know who is going to say, 'Hey, I know that guy."' The suspects in the case were ultimately arrested, though officers credited old-fashioned police work for the capture.

Franklin's use of the Internet in that case was relatively small-scale compared with departments elsewhere. In Hamilton, Ontario, offices posted a 72-second surveillance video on YouTube after a fatal shooting outside of a hip-hop concert. The clip attracted about 35,000 hits, and the police had enough information within two weeks to arrest a suspect. A detective working on the case sought to increase awareness by placing an announcement on websites that are visited by hip-hop fans. According to the detective, "We hoped there would be enough buzz created that people on their own would go to YouTube."

YouTube allows officers to post a description of the scene on the site, along with the telephone number of the department. In a video posted by the Billerica, Maine police department, the clip contains the following description: "Suspects smash the front window of the convenient store and steal some beer. Incident occurred on 3/14/07 in Billerica, MA. This appears to be very similar to another incident which occurred on 12/25/06 of last year. We believe the vehicle to be a dark Toyota Matrix or similar small wagon. Anyone who may know anything about the suspect sin the video, please call the Billerica Police Department…."

Despite the promise, some commentators have expressed concern about the use of sites such as YouTube for these purposes. A video that is viewed by several thousand people might lead to numerous false leads, thus hampering the ability of police officers to track down legitimate leads. One detective noted, "There is a concern that if we use this option often that we would unnecessarily tie up our investigators who'd be looking into hundreds or thousands of leads that would be produced." Others have expressed privacy concerns. For instance, some have noted that victims and innocent bystanders should consent before the videos are posted. Similarly, some experts have said that the videos should be removed once the court proceedings have closed.

One irony in the use of the videos is that police are using a medium that has been employed to demonstrate police misconduct. Some groups and users use YouTube and other sites to post videos showing instances of police abuse or excessive force. In one instance, a clip on YouTube showed an officer punching a suspect repeatedly in the face, prompting an investigation by the Federal Bureau of Investigation.

A growing number of departments now consider YouTube as one of many options that may be used during investigations. Departments are also using other popular sites for a similar purpose. For example, social networking sites such as MySpace have been used to benefit investigations due to the type of information that can be exchanged there.

Criminal Law

views updated Jun 11 2018


A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.

U.S. v. Kreisel

Law enforcement gained a powerful tool with the introduction of DNA testing. Because DNA has proved to be very effective in criminal prosecutions, Congress has enacted laws that require persons convicted of federal criminal offenses to provide a DNA sample that will go into a federal criminal database. By doing so, law enforcement will be able to match more easily DNA from offenders who go on to commit new crimes. The first federal law was enacted in 2000 and applied only to federal offenders who committed violent offenses. However, in 2004 Congress broadened the law to include all federal offenders. Offenders lost constitutional challenges to the 2000 act in federal courts but the 2004 law led to another round of challenges. The federal circuit courts of appeals have addressed these challenges and the Ninth Circuit, in U.S. v. Kreisel, 508 F.3d 941 (2007), followed the lead of other circuits in rejecting the challenge of a felon that the law violated his Fourth Amendment rights.

In March 1999, Thomas Kreisel, Jr. pleaded guilty to a federal drug charge involving the distribution of methamphetamine. He was sentenced to 30 months in prison and three years of supervised release. After Kreisel was placed on supervised release, his probation officer scheduled him for DNA testing. Kreisel objected in principle to the government's collection and permanent storage of his DNA. The probation department petitioned the district court to revoke Kreisel's supervised release because he failed to report for DNA testing. Under the DNA Backlog Elimination Act's 2004 amendments (42 U.S.C. 4135a(d)), the conviction for conspiracy to distribute methamphetamine was a “qualifying Federal offense.” At the revocation hearing, Kreisel's lawyer contended that the regulation promulgated by the Attorney General to govern the collection of DNA was procedurally defective and that the DNA act itself violated the Fourth Amendment's prohibition on unreasonable searches and seizures. The district court rejected both arguments and upheld the validity of the regulation and the law.

A three-judge panel of the Ninth Circuit voted 2–1 to uphold the district court ruling. Judge M. Margaret McKeown, writing for the majority, noted that the Ninth Circuit had, in 2004, upheld the original DNA act which covered only felons who had committee violent offenses. The 2004 amendment made anyone convicted of a federal felony subject to DNA collection. The Attorney General promulgated a regulation to carry out this new mandate, which requires that probation officers collect DNA samples from felons on probation, parole, or supervised release. The samples are furnished to the Federal Bureau of Investigation (FBI), which analyzes the DNA and includes the results in CODIS (Combined DNA Index System), a centrally-managed database linking DNA profiles gathered from federal, state and territorial DNA collection programs. Both the 2000 and 2004 laws included privacy protection standards, making the unauthorized collection, use or disclosure of a DNA sample a crime. A person convicted of violating these standards is subject to a $25,000 fine and one year in prison.

Judge McKeown first considered whether the Attorney General had properly managed the way the regulation was implemented. Under federal administrative procedure law, a proposed regulation is published to give notice to the public and a comment period follows where objections can be made to the proposal. Kreisel argued that the Attorney General had failed to follow this process. McKeown pointed out that the notice and comment process applies to substantive or legislative rules but not to “interpretive rules.” The 2004 regulation was a “classic interpretive rule: it is a rule ‘issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.”’ The 2004 amendment dictated the basis for the revision of the regulation, which mirrored the statute by designating “any felony” as a qualifying offense.

As to Kreisel's Fourth Amendment challenge, Judge McKeown noted that every circuit court of appeals that had considered the 2004 act had found it constitutional. The majority of the circuits used a “totality of the circumstances” test to review the constitutionality of the provision. This test pitted the degree to which the law intruded upon an individual's privacy against the degree to which the law is needed to promote legitimate governmental interests. Kreisel's privacy interest was severely diminished because he was a convicted felon on supervised release. The collection of the blood sample implicated his interest in bodily integrity but the court concluded it was no more intrusive than fingerprinting. In contrast, the government's interest in collecting DNA data from convicted felons was substantial. The data established a means of making releases comply with the conditions of their release, it acted as a deterrent to future crimes, and it helped solve past crimes. Therefore, the balance tipped in favor of the government's interest.

Judge Betty Fletcher dissented, arguing that the law was unconstitutional. In her view the law was too broad, as it mandated testing of felons regardless of their offense or their likelihood to re-offend. She pointed out that the Ninth Circuit decision upholding the 2000 act contained language that cautioned the ruling was of a “limited nature.” Judge Fletcher believed that the “expediency” infected the majority's analysis. There seemed to be “no limiting principle beyond what the government says it needs.”

Watson v. United States

Criminals who use firearms during the commission of their crimes are subjected to enhanced criminal penalties for doing so. Laws that reflect this policy seemingly are directed at a criminal who brandishes a firearm at a victim or who carries a weapon during a criminal transaction, such as a drug deal. However, the courts have been confronted with arguments from prosecutors who contend that such a law is applicable to a person who trades his firearm for drugs; he has “used” the firearm in the commission of the crime. This argument has proven successful, leading prosecutors to seek enhanced sentencing penalties for a person who is given a firearm in exchange for illegal drugs. The U.S. Supreme Court, in Watson v. United States,—U.S.—, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007), rejected this argument, finding that the federal statute could not be stretched in such a way as to go beyond the ordinary meaning of the word “used.”

Michael Watson told a government informant that he wanted to acquire a gun. The informant suggested that he would barter a gun in return for narcotics. Watson agreed and met the informant and an undercover law enforcement officer posing as a firearms dealer. Watson gave the informant 24 doses of the narcotic Oxy-Contin and received a .50 caliber semiautomatic pistol. When officers later arrested Watson, they found the pistol in his car. He told officers he needed the firearm to protect his drugs and other firearms he kept at his house. Watson was charged distributing a Schedule II controlled substance and for “using” the pistol during and in relation to that crime in violation of 18 U.S.C § 924(c)(1)(A). This law sets a mandatory minimum sentence for a defendant who, “during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm.” Watson pleaded guilty to all charges but reserved the right to appeal the gun charge. His sentence was enhanced by 5 years for using the gun. The Fifth Circuit Court of Appeals upheld the validity of the sentence, ruling that he had “used” the firearm but other circuits have taken the opposite view. Therefore, the Supreme Court accepted Watson's appeal to resolve the conflict in the circuits.

The Supreme Court, in a unanimous decision, overruled the Fifth Circuit's decision and its reading of the term “used” in §924(c)(1)(A). Justice DAVID SOUTER, writing for the Court, noted that in a 1993 decision the Court had held that a criminal who traded his firearm for drugs “used” it within the meaning of the statute. In that case the Court relied on the “ordinary or natural meaning” of the verb “uses” in context. It was “both reasonable and normal” to say the person “used” his firearm by trading it for cocaine. However, Justice Souter pointed out a 1995 decision in which the Court held that merely possessing a firearm kept near the scene of drug trafficking did not amount to “use.” There must be evidence sufficient to show an “active employment” of the firearm by the defendant.

Turning to Watson's case, Justice Souter found that the government's argument lacked authority in “either precedent or regular English.”As to precedent, the 1993 and 1995 decisions were not precedential. The 1993 case addressed the trader who swaps guns for drug, not the trading partner who ends up with the gun. The 1995 decision was of no value because it required that a gun be used actively as an “operative factor” to the drug offense. The question at issue before the Court was whether “it makes sense to say that Watson employed the gun at all.” The 1995 decision did not answer that question.

Therefore, the case had to turn on the meaning of the language and the verb “uses” as “we normally speak it.” With no statutory definition of the word, the Court was required to look for the “everyday meaning” of words, revealed in “phraseology that strikes the ear as ‘both reasonable and normal.”’ Viewed this way, the government did not, in Souter's view, have much of a case. In this case the informant or undercover agent “used” the pistol to get drugs, but “regular speech would not say that Watson himself used the pistol in the trade.” The government had argued that such a conclusion would create “unacceptable asymmetry” with the 1993 decision, penalizing one side of a drugs-for-guns transaction but not the other. Justice Souter was unconvinced, noting that Congress has 14 year to resolve this asymmetry but had failed to do so. This long period of “congressional acquiescence” enhanced Souter's reading of the statute. Finally, if there was a tension between the 1993 case and Watson's, “respect for the language” would be furthered by amending the law rather than by “racking statutory language to cover a policy it fails to reach.” Justice Ruth Bader Ginsburg filed a concurring opinion, agreeing with the result but finding the 1993 decision wrong. She concluded the Court should have overruled it.

criminal law

views updated Jun 08 2018

criminal law. In Anglo-Saxon and Norman England, there was no distinction between criminal and civil law. Violence, or the causing of damage or harm to another's person or property, was subject to savage penalties if the offender was caught red-handed, but other cases, including homicide, were dealt with by a system of compensation whereby, according to a tariff, wrongs were recompensed by money payments. Where the offence was serious, in addition to the bot (compensation for injury) or wergeld (payment to the kin of a murdered person), a payment (the wite) was made to the king.

Certain offences which were especially serious were the ‘pleas of the crown’, declared by the Anglo-Saxon kings to affect the king's interests especially, such as a breach of the king's peace. The Normans adopted these notions and extended the pleas of the crown, as well as introducing the concept of felony. These pleas came to be dealt with by the king's own justice—i.e. by the king or his justices.

In the Assizes of Clarendon and Northampton (1166 and 1176), Henry II introduced a system of presentment, under which twelve men of each hundred were to present to the justices of the curia regis those suspected of serious crime (pleas of the crown). Some see this as the beginning of a true ‘criminal law’, since it acknowledged that it is the role of government in the person of the king to ensure that crime is dealt with. Those presented might then be put to the ordeal to ascertain their guilt or innocence. When the clergy were forbidden to participate in ordeals by the Lateran Council of the church in 1215, the justices turned to the verdict of a jury to decide guilt or innocence. Presentment soon superseded the appeal of felony as the principal means of bringing criminals to justice.

Lesser offences were presented to the sheriff at the periodic session of the hundred court (held four times a year), which was known as the ‘sheriff's tourn’. Where the lord of the manor held a court leet, the jurisdiction of the hundred was exercised in that court, and the fines collected were payable to the lord. Later, after the introduction of the justices of the peace, and especially after their jurisdiction was extended in 1361, lesser offences were tried by the JPs in petty sessions or quarter sessions.

The pleas of the crown became the basis of the English criminal law, which was administered in the sheriff's tourn and the court leet, and later in the courts held by the JPs (for minor crimes), and at quarter sessions, and before the judges of assize, where serious cases were heard with a jury. This system of criminal justice remained until the 19th cent. and was little changed until the 1971 Courts Act. In 1971 the assizes were abolished, as were quarter sessions. Serious criminal cases (indictable offences) are now tried in the crown court with a jury. Less serious cases (summary) are dealt with by magistrates sitting without a jury, or by a stipendiary magistrate. The ancient classification of crimes into treasons, felonies, or misdemeanours was abolished in 1967, and the law now divides crimes into indictable or summary (for purposes of trial) and into arrestable and non-arrestable.

The 18th and 19th cents. saw the introduction of large numbers of capital offences, partly in response to fear of revolution among the ruling élite. The so-called ‘bloody code’ imposed savage penalties for many offences and, even when transportation was introduced as an alternative to the death penalty, punishments remained severe. The severity of the penal system was modified by the use of fictions, especially the undervaluing of goods stolen at less than a pound; by the use of benefit of clergy to enable a defendant who had been found guilty to evade the death penalty; by the reluctance of juries to convict; and by the very widespread use of the power of pardon. Gradually, under the influence of reformers such as Bentham, Romilly, Mackintosh, and Peel, the ferocity of the penal code was mitigated.

Appeals against conviction could only be to the Court for Crown Cases Reserved, set up in 1848, and it was not until 1907 that a proper system of criminal appeals was introduced with the creation of the Court of Criminal Appeal. In 1966 the Court of Appeal was divided into the criminal and civil divisions, and there is a right of appeal to that court from the crown court.

Maureen Mulholland

Criminal Law

views updated May 18 2018

criminal law

views updated May 23 2018

criminal law Body of law that defines crimes, lays down rules of procedure for dealing with them, and establishes penalties for those convicted. Broadly, a crime is distinguished from a tort by being deemed injurious to the state. In many countries the criminal law has been codified. Among the best-known modern codes are the Constitutio Criminalis Carolina (1532) promulgated by Charles II for the Holy Roman Empire, Joseph II's code for Austria (1786), and the Code Napoléon. Criminal law remains part of common law, although since the 18th century it has been greatly added to by statute law.

Criminal Law

views updated May 29 2018

Criminal Law ★★ 1989 (R)

An ambitious young Boston lawyer gets a man acquitted for murder, only to find out after the trial that the man is guilty and renewing his killing spree. Realizing he's the only one privy to the killer's trust, the lawyer decides to stop him himself. A white-knuckled thriller burdened by a weak script. 113m/C VHS . Kevin Bacon, Gary Oldman, Karen Young, Joe Don Baker, Tess Harper; D: Martin Campbell; W: Mark Kassen; C: Phil Meheux; M: Jerry Goldsmith.

criminal law

views updated May 11 2018

crim·i·nal law • n. a system of law concerned with the punishment of those who commit crimes.Contrasted with civil law. ∎  a law belonging to this system.

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