Criminal Law
Criminal 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.
Investigation
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.
Appeal
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.]
BIBLIOGRAPHY
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