Criminal Justice

1. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
Chapter 3
Policing:
Criminal Law
Scott Moller, JD
Introduction to Administration of Justice

2. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
3.1 Explain the nature and purpose of law.
Discuss the nature of the rule of law, and describe
its importance in Western democratic societies.
Describe the five categories of crime.
CHAPTEROBJECTIVES
Identify the various categories or types of law, and
explain the purpose of each.
3.2
3.3
3.4
Describe the eight general features of crime.
Discuss the four broad categories of criminal
defenses that our legal system recognizes.
Explain what is meant by the elements of a specific
criminal offense.
3.5
3.6
3.7

3. 3.1
Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes:
Summarize the purpose, primary
sources, and development of law.

4. Laws regulate relationships, channel and constrain human
behavior, contribute to public order, maintain values, sustain
power, and punish and rehabilitate offenders.
What do laws do?3.1
1. Maintain order in society
2. Regulate human interaction
3. Enforce moral beliefs
4. Define the economic environment
5. Support the powerful
6. Promote orderly social change
7. Sustain individual rights
8. Redress wrongs
9. Identify wrongdoers
10. Mandate punishment & retribution

5. Definitions
5
Law - A rule of conduct, generally found enacted in the form of a
statute, that proscribes or mandates certain forms of behavior
Statutory law - The written or codified law; the “law on the books,” as
enacted by a government body or agency having the power to make
laws
Penal code - The written, organized, and compiled form of the criminal
laws of a jurisdiction
Case law - The body of judicial precedent, historically built on legal
reasoning and past interpretations of statutory laws, that serve as a
guide to decision making, especially in the courts
Common law - The body of law originating from usage and custom
rather than from written statutes. The term refers to an unwritten body
of judicial opinion, originally developed by English courts.
3.1

6. US Constitution – Art. VI
Supremacy Clause
State constitutions – can
give more rights, not less,
than US Constitution
Statutes – federal and state
codes
Agency Regulations –
administrative codes, e.g.,
DOT, IRS
Case law – courts interpret
codes and past decisions
Common law – unwritten,
judge-made law; underlies
many US legal doctrines
Where do our laws come from?3.1

7. 7
Common Law3.1
• Originally unwritten – Based on customs and traditions handed down
from generation to generation, rather than from written statutes
• Judge-made – English judges created, refined and changed the law
through actual decisions, ruling on cases before them
• Eventually written, including the rationale for the decision, for other
courts to handle future similar cases in the same way, as legal
precedent.
• Precedent – A legal principle that previous judicial decisions are
authoritatively considered and incorporated into future cases. Lower
courts must follow precedent. Higher courts can overrule or modify
lower courts’ decisions.
• Stare decisis - “standing by decided matter,” is a legal principle
binding courts, in subsequent cases on similar issues of law and fact,
to follow their earlier decisions, and those of higher courts having
jurisdiction over them, as precedent.

8. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
3.2
Define the rule of law, including its
importance in Western democratic
societies.

9. The Rule of Law
9
Rule of law
– The maxim that an orderly society must be governed by
established principles and known codes that are applied uniformly
and fairly to all of its members
– Sometimes referred to as the supremacy of law
– The greatest political achievement of our culture
– The foundation of liberties in the Western world
ABA notes that the rule of law includes these elements:
– Freedom from private lawlessness/anarchy
– Highly objective formulation of legal norms
– Even-handed application
– Legal devices for the attainment of individual and group
objectives
– Substantive and procedural limitations on governmental power
3.2
Jurisprudence – The philosophy of law or the science and study of the
law, including the rule of law

10. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
3.3
Summarize the various categories of
law, including the purpose of each.

11. 11
Types of Law: Criminal vs. Civil Law3.3
Criminal law addresses wrongs committed
against society, compromising public order.
Civil law governs relations between parties
(between and among people and/or
entities).
1. Civil Rights
2. Contracts
3. Employment Law
4. Environmental Law
5. Family Law – divorce, child support, etc.
6. Real Property
7. Wills & Estates
8. Torts

12. 12
Types of Law: Administrative3.3
Administrative Law
– The body of regulations that governments create to
control the activities of industries, businesses, and
individuals
– Tax laws, health codes, vehicle registration laws, etc.

13. 13
Types of Law: Criminal Law3.3
• Criminal Law – The body of rules and regulations (statutes,
interpreted by courts) that define the nature of, and
punishments for, wrongs committed against the state or
society. Also called penal law.
• Substantive Criminal Law –defines crimes and specifies
punishments, e.g., murder, rape, robbery, assault; deals
with the conduct of the offender
• Procedural Criminal Law – The part of the law that
specifies methods for enforcing substantive law; deals
with the conduct of the state, to ensure compliance with
the US Constitution, e.g., search and seizure, arrest, etc.,
particularly found in the 4th, 5th, 6th and 8th
Amendments. For more info, see: FRCP, FRE

14. Types of Law: Civil Law – Torts
14
• Torts (Civil Wrongs)
– Not a crime, so no state prosecution – plaintiff sues
defendant
– A private or civil wrong or injury
– A wrongful act, damage, or injury not involving a
breach of contract
3.3

15. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
3.4 Describe the five categories of
crimes and their characteristics.
1. Felony
2. Misdemeanor
3. Offense
4. Inchoate Offense
5. Treason & Espionage

16. 16
Types of Law: Felony, Misdemeanor,
Offense3.4
Felony
• Felony – A crime punishable by death or at least one year of
imprisonment. Convicted felons typically lose the right to vote,
hold public office, enter certain professions, possess a firearm,
serve on a federal jury, or enlist in the armed forces.
• Misdemeanor – A crime punishable by one year or less of
imprisonment. Sometimes divided into gross (6-12 mos) and
petty (<6 mos) misdemeanors. A misdemeanor must generally
take place in front of an officer or a civilian witness who signs a
complaint for the arrest to occur
• Offenses/Violations/Infractions – Minor offenses usually
ticketable and punishable by a fine only.
CA law allows felons to vote after release from probation
or parole. (CA Const., art 11, sec 4.) CA Penal Code sec.
17(b)(3) allows some felons (alternate felony/misdemeanor
and granted probation) to later petition the court to have
the conviction declared a misdemeanor for all purposes.

17. 17
Types of Law: Treason and Espionage3.4
• Treason – A US citizen’s acts to help
a foreign government overthrow,
make war against, or seriously injure
the US. The attempt to overthrow
the government of the society of
which one is a member.
• Espionage – Gathering,
transmitting, or losing information
related to the national defense, in
such a manner that the
information becomes available to
enemies of the US.
Treason is the only crime
specifically mentioned in the US
Constitution.

18. 18
Types of Law: Inchoate Offenses3.4
• Inchoate (incomplete/partial) offense – An offense not yet
completed. An offense that consists of conduct that is a
step toward the intended commission of a crime.
• Conspiracy – When one conspires to commit a crime;
an act undertaken in furtherance of the conspiracy is
basis for arrest and prosecution.
• Attempt – Example: a person wearing a ski mask and
carrying a crow bar, flashlight and gun, while peering
into the back door of a stranger’s house may be
arrested for attempted burglary.

19. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
3.5
Describe the eight general
features of crime.

20. Eight General Features of Crime3.5
CausationConcurrenceMens ReaActus Reus
Necessary
Attendant
Circumstances
PunishmentLegality
Resulting
Harm

21. 21
3.5
• The criminal act (Actus Reus)
1. A guilty act or omission
• Crime of commission – murder, assault, rape, etc.
• Crimes of omission – child neglect, failure to
comply with tax filings, etc.
2. that causes or creates imminent threat of
3. a social harm condemned by statute
– Note: To be something is not a crime; to do something
may be. Thus, being addicted to methamphetamine is
not a crime; actively possessing or using it is.
– Threatening to act can be a criminal offense
– Conspiracies are another criminal act
Actus Reus

22. Mens Rea (Guilty Mind)3.5
22
Guilty mind (Mens Rea) – The state of mind that accompanies a criminal
act. Required element in all but strict liability crimes. Typically must be
inferred from defendant’s words & acts. May be:
1. Purposeful – intentional
• Transferred intent – bad aim = bad act
2. Knowing – aware to near certainty, e.g., pilot
allows stewardess to smuggle cocaine on plane.
HIV-infected person knowingly has unprotected
sex w/another
3. Reckless – activity increases probability of harm.
Driver speeding through school zone hits a child.
4. Criminal negligence – one fails to reasonably
perceive substantial, unjustifiable risks of
dangerous consequences
• Strict liability crimes (e.g., traffic, statutory rape)
require no mens rea.
Note: Motive is different from Mens Rea.
Motive is the REASON someone committed a crime.

23. Examples of Mens Rea3.5

24. Concurrence3.5
Crime
Actus Reus
Mens ReaConcurrence
1. Actus reus –
an act in
violation of
the law; and
2. Mens rea – a
culpable
mental state
• Concurrence – The coexistence (at the same time) of:

25. 25
3.5
• Causation
For guilt to exist, the concurrence of a guilty mind and a
criminal act must cause harm
– Legal cause
•Must be demonstrated in court in order to hold an
individual criminally liable for causing harm
• Harm
– Not all harms are crimes
– What about attempts?
• Consider potential for harm
– What about so-called “victimless” crimes?
•Consider social harm caused by the behavior
Causation and Harm

26. 26
3.5
• Legality
– Laws and their punishments must be in writing before
an offense occurs to make it illegal
– Highlights the fact that a behavior cannot be criminal if
no law exists that defines it as such
– Includes the notion of ex post facto laws
•Latin for “after the fact”
•Laws are binding only from the date of their creation
• Punishment
– No crime can be said to occur where punishment has
not been specified in the law
– nullem crimen sine lege, nulla poena sine lege (“no
crime without law, no punishment without law”)
Legality and Punishment

27. 27
3.5
• Necessary attendant circumstances
– The facts surrounding an event
– Includes such things as time and place
– May be classified as aggravating or mitigating
circumstances
– Aggravating and mitigating circumstances are not
elements of an offense
– Some crimes exist or may be aggravated, due to
circumstances
– Examples:
– lewd & lascivious behavior in the presence of a
child
– selling drugs within 1,000 feet of a school
Necessary Attendant Circumstances

28. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
3.6
Explain what is meant by
the elements of a specific
criminal offense.

29. Statutory Elements of an Offense3.5
29
To satisfy the conceptual
elements and features just
discussed, courts will instruct
juries as to the specific
elements required to prove a
particular crime. Jury
instructions are an excellent
resource to understand what is
necessary for conviction, and
to understand the law.
These practical elements of
the crime are critically
important for the state, the
defense, and the police.
CA Criminal Jury Instructions

30. Actus Reus + Mens Rea = Corpus Delicti3.6
30
The corpus delicti of a crime literally means “the body of the
crime.” These are the facts that show that a crime has occurred.
Two aspects to
the corpus
delicti of a
crime:
1. A certain
result has
been
produced
2. A person is
criminally
responsible for
its production

31. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
3.7
Compare and contrast the
four general categories of
accepted criminal defense.
1.Alibi
2.Justifications
3.Excuses
4.Procedural Defenses

32. 4 Defenses to a Criminal Charge3.7
32
– D denies committing crime, claims s/he could not have
committed the crime, as s/he was elsewhere
– D admits committing the crime, to avoid a greater evil
1. Self-defense, home/property – when cornered, reasonable force
2. Defense of others – alter ego rule – person cannot exceed legal
rights of person s/he was defending
3. Necessity – The Crown v. Dudley & Stephens
4. Consent – incidental contact battery, sex assault
5. Resisting unlawful arrest – in some jurisdictions
– D admits crime, but claims that a condition or
circumstance then existing means s/he should not be held
accountable
1. Duress/coercion – e.g., steals payroll to pay ransom
2. Age – most jurisdictions hold <7 cannot form criminal intent
3. Mistake of law/fact – statutory rape
4. Involuntary intoxication
5. Unconsciousness – sleepwalking, hypnosis
6. Provocation – generally may only justify minor offenses
7. Insanity/Diminished Capacity/Incompetence

33. Mental defenses
Defense claims inability to meet mens rea3.7
33
1. M’Naghten Rule – Dan M’Naghten, suffering vague delusions of Tory
Party persecution tried to assassinate British Prime Minister Peel, killed
Peel’s secretary. Rule: A defendant (D) who does not know what
s/he is doing or that it is wrong lacks mens rea, thus is not guilty (NG)
2. Irresistible Impulse – D knows right from wrong but can’t stop. NG
3. Durham Rule – D’s crime is the product/result of mental defect. NG
4. Substantial Capacity Test – D lacked substantial capacity to know
right from wrong or to stop. NG of charged offense – perhaps lesser
5. Brawner Rule – Jury relies on its own sense of fairness to decide
whether to hold D responsible. US v Brawner (1972)
6. Guilty But Mentally Ill Verdict – If state proves case, D is mentally ill
but not legally insane at time of crime, G. Ford v Wainwright (1976)
7. Temporary Insanity – D only insane at time of crime. Legislatures
have limited this defense.
8. Diminished Capacity/Responsibility – defect not enough to
exonerate, but might reduce penalty, e.g., 1st deg to 2nd deg murder
Mental Incompetence – Defendant is unable to assist in his/her own
defense.

34. Procedural Defenses
3.7
34
1. Entrapment – where agents initiate the idea or improperly
induce one to commit a crime
2. Double Jeopardy – the 5th Amendment and common
law prohibit trying a person twice for the same crime
3. Collateral Estoppel – akin to double jeopardy, collateral
estoppel holds that once facts have been judicially
determined, they cannot be relitigated with the same
parties
4. Selective Prosecution – prosecution of one class and not
another with a discriminatory effect and discriminatory
purpose violates the 14th Am. Equal Protection clause
5. Denial of Speedy Trial – the 6th Am. guarantees speedy
trial; typically within 90-120 days of demand
6. Prosecutorial/Police Misconduct – D claims deceit, etc.

35. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
3.1
3.2
3.3
3.4
Types of laws include criminal, civil, administrative, case,
and procedural.
The rule of law provides that an orderly society must be
governed by established principles applied fairly.
Laws are rules of conduct that regulate relationships
between parties.
Violations of criminal law vary in type and severity.
CHAPTERSUMMARY
3.5
3.6
3.7
Our legal system recognizes 4 categories of defenses: alibi,
justifications, excuses, and procedural defenses.
Written laws specify what constitutes an offense.
From the perspective of Western jurisprudence, all crime
can be said to contain certain characteristics.