Unit 4 Criminal Law

Criminal law may be defined as the branch of the formalized codes that identifies crimes and their punishments. A crime is an act or omission prohibited by law that may be prosecuted by the state. If one is found guilty of violating the law, the individual may be formally punished. Typical forms of punishment include death, imprisonment, fine, removal from public office or disqualification from holding public office, probation, and restitution.

Civil and Criminal Law

Important distinctions exist between civil and criminal laws. Civil violations are often referred to as torts（the French word meaning wrong）. Torts involve negligent as well as intentional harm to an individual or to the property of another. Thus, if because of the negligence of a homeowner a chimney was to fall onto the property of another causing damage to a car and harm to several people, a civil wrong has occurred. However, if the homeowner intentionally pushes the chimney onto another or that person's property, then a crime and a tort have resulted. This example illustrates the primary distinguishing feature between crimes and torts:A crime is considered to be a wrong against all of society, whereas a tort is considered to be a private matter between the parties directly involved. If the person whose car was damaged by the chimney declines to press charges in civil court, the homeowner will be free of any responsibility. However, if the chimney was intentionally pushed, the state could prosecute even if the party harmed refuses to bring charges.

The second distinction involves the persons who actually prosecute the case. A specially designated state prosecutor or federal official directs the proceedings when crimes are involved. However, in tort actions the individual against whom the wrong has been committed generally hires an attorney to process the claim.

Third, although one who commits a crime may be required to provide some form of monetary restitution to society or to the victim, additional punishments are also readily available. These include fines, probation, jail sentences, removal from public office, and even execution. Excepting fines, these latter remedies are not available in tort law. Rather, tort restitution relies primarily on monetary compensation. 59

Finally, compensation paid individuals who have sued others in civil courts is called damages. Civil damages are categorized as general, special, and punitive. General damages compensate for any specific and demonstrable harm that has been caused. Special damages involve compensation for“conscious pain and suffering. ”Finally, although it is extremely rare, civil courts occasionally award what was known as punitive or exemplary damages to a harmed party. Punitive damages are awarded at the discretion of the jury, or as required by statute, if it is found that the behavior of the actor was the result of an intentional disregard for the safety or well-being of others.

In many cases a person's behavior may bring about both criminal and tort liability. As a general rule, any time an individual has been intentionally and physically harmed by another, the state may prosecute and punish, and the injured individual may also sue to recover civil damages. For example, if one individual intentionally punches another and breaks that person's jaw, a crime has been committed（assault and battery）. Moreover, the injured party may sue the defendant in a civil action for（1）the medical costs to repair the jaw, （2） conscious pain and suffering, and（3）perhaps even punitive damages.

Substantive and Procedural Criminal Law

Two broad areas of the law are readily distinguishable:substantive and procedural. Substantive criminal law defines crimes and establishes punishments. These laws are commonly found in statutes and ordinances that are written by local, state, or federal legislatures. Criminal procedural law outlines the procedures that must be followed during the investigation of crimes, in the apprehension of offenders, and in the determination of the individual's innocence or guilt. Thus, substantive law informs society as to what behavior is acceptable or unacceptable, whereas procedural law directs the state as to the proper methods for apprehension and adjudication. For example, the so-called Miranda warnings（Miranda v. Arizona） represent procedural law because the police have been directed by that famous U. S. Supreme Court case to advise the suspect of a variety of legal rights that he or she has. Until the Miranda warnings have been given, however, an individual cannot be lawfully arrested unless the police have probable cause to believe a crime has been or is being committed:That is, a particular substantive law must first be violated before the state will begin its investigation.

Felonies, Misdemeanors, and Infractions

The distinction between felonies, misdemeanors, and infractions generally centers on the seriousness of the crime committed, the subsequent punishment allowed by 60 law, and/or the place of confinement of the convicted defendant. The grounds for the distinction often vary considerably from state to state. In some jurisdictions imprisonment for any period of time at hard labor attaches only if a felony has been committed. In other jurisdictions a felony and possible incarceration result only if a so-called infamous crime has occurred. Indeed, some state statutes simply designate some crimes as felonies and others as misdemeanors. However, a review of the applicable state statutes reveals a more common test:The length or place of punishment often distinguishes a felony from a misdemeanor. Thus, any crime generally punishable by more than six months in prison is considered to be a felony （although many jurisdictions fix the length of incarceration at more than one year）, whereas a crime requiring punishment of less than six months is a misdemeanor. However, it is important not to be confused by the length of the sentence given by the judge or jurors. For example, assume a judge sentences the defendant to five months imprisonment. Has a felony or a misdemeanor been committed by the accused? That would depend on whether or not the judge sentenced the individual to the greatest maximum term imposed by law. Thus, if the greatest maximum sentence was five months, then clearly a misdemeanor has been committed. However, if the judge had the discretion to sentence the individual to six months or more imprisonment, even though he or she decided not to do so, a felony has been committed.

Another way to distinguish felonies from misdemeanors is by the so-called in presence rule. Most states maintain that a police officer cannot arrest an individual for a misdemeanor unless the misdemeanor is committed in the officer's presence. When the offense is a felony, however, the police office must arrest the individual if he or she reasonably believes the crime was committed by that person（even though the transgression was committed out of the presence of the officer）.Even reasonable belief by a police officer that a misdemeanor has been committed does not constitute a valid reason for making an arrest without corroboration by a witness or without the signing of a complaint and the issuance of an arrest warrant.

Infractions are considered be to“petty”offenses. As with misdemeanors, a jury trial is not guaranteed if an infraction has been committed, and the person committing infractions may never receive a jail sentence as punishment. Typically, infractions involve violations of the motor vehicle code, but not all violations designed in the vehicle code are considered infractions. Indeed, there are many instances in which the driver of an automobile may receive a harsh jail sentence if found guilty of involuntary manslaughter for driving while intoxicated and causing the death of another.

Motive and Intent

Persons unfamiliar with the law often use the words motive and intent as if they were interchangeable legal concepts. It is also commonly believed that the state must prove the actor's motive in order to establish guilt. However, motive and intent have completely different legal meanings. Motive is defined as the“cause or reason that moves the will and induces action. ”It represents the stimulus for behavior. Thus, one may kill another because of hatred, jealousy, revenge, spite, loathing, or even love. But the fact that one may have the motive to kill another does not necessarily mean that one harbors the intent to injure or kill. Intent relates to the state of mind at the time of the commission of the unlawful act. As illustration, a seemingly proper motive for killing one's criminal law professor may result from lengthy homework assignments and difficult examinations. But these are only reasons（i. e. , motives）why the killing should occur. They do not necessarily represent an individual's mental design or resolve to actually commit the act. The statement“I hate Professor Smith because he failed me”may represent a motive for future action. Coupling the“I hate”phrase with“and I now intent to kill him”establishes motive and intent, respectively.

Perhaps the confusion concerning motive and intent exists because of the extensive use of motive, or lack thereof, in criminal proceedings by both prosecutors and defense counsel. Although the state is not required to prove the defendant's motive for behavior, such proof can help convince the jury that the accused is guilty as charged. People generally do not act without reason, and the jurors typically want to know the“why”of the crime. Failure on the part of the state to establish the why does not necessarily mean the jury will vote for acquittal. And with the exception of strict liability offenses, failure to establish an unlawful intent （state of mind, or mens rea）must result in acquittal.

Defense attorneys may discuss their clients'motives in an attempt to establish a justifiable reason for the otherwise illegal behavior. That Smith has the intent to kill Jones and in fact kills Jones does not necessarily mean Smith is guilty of any crime. The motive for the homicide may overcome all criminal charges. For example, if Smith can establish that the motive for the killing was self-defense or an attempt to prevent Jones from killing another, an acquittal results because the killing will be considered to be a justifiable homicide.

Motive falls short of action, and with the exception of the crimes of omission there can be no criminal liability without some overt behavior（e. g. , firing the pistol at the victim）. In the same vein a“good”motive does not necessarily absolve the actor of criminal responsibility. A number of cases serve as illustrations. In one 62 instance a father was not able to provide his child with enough food to prevent starvation and ended the son's life by drowning him. The father was convicted of murder. In the case of People v. Roberts,178 N. W.690（1920）, the defendant's wife asked the husband to kill her because of the physical pain she was suffering because of an incurable disease, and the husband provided her with poison. A first degree murder charge was upheld. Indeed, the ineffectiveness of establishing a“good”motive for most criminal behavior is accurately depicted by Professors Smith and Hogan:“The mother who kills her imbecile and suffering child out of motives of compassion is just as guilty of murder as is the man who kills for gain, since each intentionally takes another human life. ”

At what point does a person becomes criminally liable for his or her actions? The answer to the question is not particularly difficult:Specifically, one is liable if one commits a violation of the law. The difficulty is ascertaining what the law considers to be the meaning of the word commit. It is generally recognized that three legal elements must be proved before one is declared to have committed a crime. These elements are referred to as（1）mens rea, （2）actus reus, and（3）causation.

The mere fact that a harm occurs does not necessarily mean a crime has been committed. For example, if one shoots and kills what he believes to be a burglar, but the deceased is actually the individual's wife, has the crime of first degree murder occurred? The answer depends on the husband's unlawful intention, or mens rea, at the time of the pulling of the trigger. If the husband truly believed that his wife was a burglar, then he did not act with a criminal intent（i. e. , mens rea）. However, if he was criminally negligent in his belief and behavior, then the law may nonetheless conclude that the unlawful mens rea was present. That is, the intent is inferred from the grossly negligent behavior of the accused.

The actus reus element relates to the“doing”part of the crime. Thus, if a person does not have a legal duty to act and in fact does not act, then that person cannot be held legally accountable for the unlawful acts of others. As illustration, if a citizen watches another rob a bank, the citizen will not be liable unless he or she had a legal duty to prevent the crime—for example, if he or she was an officer of the law. The robber, however, would have satisfied the actus reus element upon entering the bank and declaring, “This is a hold-up. Give me the money. ”

Finally, causation is considered to be the logical coming together of the mens rea and actus reus, resulting in a criminal wrong. Thus, if a wife fires a shot at her husband but just prior to the striking of the bullet the husband dies of a brain tumor, is the wife criminally liable for the death? The answer is no, even though there is a mens rea（the intent to kill）as well as an actus reus（the firing of the gun in the direction of the husband）. The death was not the logical result of the intention and the action. Thus causation does not exist, and there is no criminal liability. （Paul E. Dow, Criminal Law）

Legal Terms

restitution n．赔偿；返还原物；恢复原状

probation n．缓刑

tort n．侵权

negligence n．过失

prosecute v．提起公诉

compensation n．赔偿

damages n．损害赔偿金

punitive damages n．惩罚性损害赔偿

exemplary damages n．惩罚性损害赔偿

assault n.（侵权法）（刑法）威胁；恐吓；意图侵犯身体；（刑法）企图伤害罪

battery n.（刑法）殴击罪；（侵权法）非法侵犯

apprehension n．逮捕

adjudication n．审判

probable cause n．合理根据，充分理由

felony n．重罪

misdemeanor n．轻罪

infraction n．违反（指违约、违法、违章、违纪，尤指违反地方法令或规章）

confinement n．限制；监禁

imprisonment n．监禁；拘押；限制人身自由

incarceration n．监禁；关押

infamous crime n．不名誉罪

arrest warrant n．逮捕令

jail sentence n．监狱刑

manslaughter n．非预谋杀人

involuntary manslaughter n．过失杀人

motive n．犯罪动机

intent n．犯罪故意

strict liability offenses n．严格责任犯罪

justifiable reason n．正当理由

acquittal n．无罪判决

homicide n．杀人

justifiable homicide n．正当杀人

mens rea n．犯意

actus reus n．犯罪行为

causation n．因果关系

deceased n．死者

burglary n．夜盗罪；入室行窃罪

Notes

1. This article is chosen and adapted from Criminal Law by Paul E. Dow.

2. Miranda Warnings

On June 13,1966, the Supreme Court of the United States, in a five to four decision in Miranda v. Arizona,384 U.S.436（1966）, established a requirement that before anyone in police custody may be interrogated, the interrogator must advise the suspect that:A. he has a right to remain silent; B. anything he says may be used against him;C. he has a right to a lawyer; and D. if he cannot afford a lawyer one will be provided free. It became known as the doctrine of Miranda Warnings later.

As the Miranda Warnings suggest, a suspect may waive the right to remain silent, as well as the right to have an attorney present during interrogation, but such a waiver must be knowing and voluntary. Studies show that most suspects do choose to talk. But a voluntary waiver of the right to remain silent is one made without threats, trickery, or cajoling by the police.

3. Probable cause

Probable cause generally refers to the requirement in criminal law that police have adequate reason to arrest someone, conduct a search, or seize property relating to an alleged crime. The probable cause requirement comes from the Fourth Amendment of the U.S. Constitution, which states that:“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched. ”

4. assault and battery

At common law, and in a minority of state jurisdictions today, assault and battery are separate and distinct crimes. However, some states, and as illustrated in the Model Penal Code, no longer employ the term battery and instead favor the more generic term assault.

5. actus reus and mens rea

In his treatise The Common Law, Oliver Wendell Holmes noted, “Even a dog distinguishes between being stumbled over and being kicked. ”The act of stumbling implies negligent behavior, whereas kicking indicates a voluntary and intended result. The Latin phrase actus not facit reum, nisi mens sit rea（an act does not make one guilty unless the mind is guilty）accurately identifies the problem. （Paul E. Dow, Criminal Law）

Exercises