Criminal Law Defined

It Commands

• The criminal law is a lost of commands, of dos and don’ts telling people what they must do or refrain from doing.
• We most often think of the criminal law as prohibiting certain acts—don’t rape, rob, murder, or steal.
• Omissions are also covered – If you fail to pay your taxes, support your children, report child abuse and so forth, you’ve committed a crime.

Enacted Into Law

• The commands must be enacted into law by the legislature or developed by the courts.
• Court developed law is called common law.

A Punishment is Prescribed

Apply to Everyone

• According to jurisprudential theory, the law gets its power from the people.
• It must apply to all people equally if it is to function at all.

The Injury is to Society

• While most crimes involve victims, they also put the whole community in fear of victimization.
• This is why criminal charges are brought by the state.

Formal Public Condemnation

Classifying Crimes

• We need to be able to classify laws.
• It is just too big to know all the specifics; we have to be able to think about the law generally.
• These schemes are also the basis for looking up the law in the Criminal Codes.

The Bigger Picture

• The criminal law is an element in the bigger legal picture.
• The two most general classifications of law are the Civil Law and the Criminal Law.
• Civil law is most often seen in the form of a suit brought by one private party (plaintiff) against a defendant to collect money (damages).
• These types of law suits are called torts.
• Damages are not the same as fines; they are compensation paid to an individual for their injuries.

Crimes Harm Society

• Unlike civil law, criminal law considers society to be the injured party.
• This is because crimes not only hurt the victim, but undermines everyone's sense of security and well-being.
• The titles of criminal cases—which involve the state as a party—denote the social nature of criminal prosecutions (e.g., State v. Smith, Commonwealth v. Jones).

Civil and Criminal Actions are Not Mutually Exclusive

• The same act can result in a criminal prosecution by the state and the injured party may sue.
• Most crimes are also torts.
• The double jeopardy (5^th Amendment) clause does not prohibit this because the defendant is not "twice put in jeopardy of life and limb"—defendants in civil cases only stand to lose money (property).
• The O.J. Simpson case is an example of this.

General and Specific Parts

• The criminal law can be divided into two classes.
• The General Part of the criminal law covers principles that apply to all crimes such as the guilty act and the guilty mind.
• The Special Part of the criminal law defines specific crimes, such as murder, rape, robbery, theft, and disturbing the peace.
• Definitions in the special part must agree with the general principles of the General Part.

Grading Scheme: Punishments

• One way to grade the law is to concentrate on punishments.

Crimes can be organized as follows:

1. Capital felonies
2. Felonies
3. Gross misdemeanors
4. Petty misdemeanors
5. Violations

Felony v. Misdemeanor

• The difference between a felony and a misdemeanor has to do with the length and place of imprisonment.
• Felonies are crimes punishable by a minimum of 1 year in state prisons
• Misdemeanors are generally punished by imprisonment in local jails for less than 1 year.
• Many misdemeanors are punished by fine.

Violations

• Violations are violations of the law that aren't designated as criminal convictions and don’t go on an offenders criminal record.
• E.g., speeding, littering.

Classification Scheme: Degree of Evil

• Another grading system divides crimes into two groups:
• Acts that are inherently evil—called Mala in Se
• Acts that are merely prohibited by law but not evil—called Mala Prohibita

Classification Scheme: Subject

This type of grouping is important because most criminal codes are arranged this way.

1. Crimes against the state—treason
2. Crimes against the person—murder, rape, assault, battery, kidnapping
3. Crimes against habitation—burglary and Arson
4. Crimes against property—embezzlement, theft, malicious mischief
5. Crimes against public order—disorderly conduct, public drunkenness
6. Crimes against the administration of justice—obstruction of justice, bribery
7. Crimes against public morals— including prostitution, fornication, and profanity

Punishment

• Imposes pain or unpleasant consequences
• Prescribed by law
• Administered intentionally
• Be administered by the state

Purposes of Punishment

• General deterrence
• Special (or specific) deterrence
• Incapacitation
• Rehabilitation

Determinism v. Free Will

• Our system of laws is contrary to many modern scientific theories because it takes for granted that humans have free will.
• When social, psychological, or physiological forces shape our behavior, then our behavior is said to be determined—free will has not acted.
• Since the law is based on free will, it takes for granted that people choose to commit crimes.
• Because people make these choices, we can lay blame on them for making the wrong ones.
• This blameworthiness is called culpability.
• Culpability means that offenders are responsible for their actions and must suffer the consequences if they act against the law.
• This is why we don’t generally punish accidents and mistakes, even when the consequences are terrible and otherwise might be crimes—our sense of justice dictates we must have a will to commit wrong before we can be blamed.

Retribution

• Retribution justifies punishment on the grounds that it is right to hurt criminals—they "eye for an eye" doctrine of the old testament.
• Prevention inflicts pain not for its own sake, but to prevent future crimes.
• General deterrence aims to prevent crime by threat of punishment—the example of those who are punished affects us all.
• Special deterrence aims to prevent a specific offender from reoffending because of the punishment inflicted on him or her.

Bentham and Deterrence

• Jeremy Bentham was an eighteenth-century philosopher and legal reformer who promoted deterrence as the only purpose of punishment in a civilized society.
• The important thinkers of his day believed that natural laws governed the physical universe and society.
• An important natural law for Bentham was Hedonism—The idea that, like animals, people tend to seek out pleasure and avoid pain.
• A related law—rationalism—says that people make their decisions on how to act based on an effort to maximize pleasure and minimize pain. [this process is called the criminal calculus].
• It follows from this we can deter crime by attaching to it a punishment that causes more pain than is gained by committing the crime.
• People who thought like Bentham are known as utilitarians. The principle of utility suggests that the state can only inflict enough pain to prevent crime (no cruel and unusual punishment)

Incapacitation

• No one will argue that the dead don’t commit crimes; neither do those locked up in jails or prisons.
• Most people do feel that this, as the sole goal of punishment, can lead to severe injustice and bankrupt state governments.
• This is the basis of "lock ‘em up and throw away the key" philosophies, such as "three strikes"

Rehabilitation

Criminal Law in a Federal System

The Federal System

Sources of Criminal Law

The main sources of criminal law include:

1. U.S. Constitution
2. State Constitutions
3. U.S. Criminal Code
4. State criminal codes
5. Municipal ordinances
6. Common law of England and the U.S.
7. Judicial interpretations of the codes and common law.

Crime is Overwhelmingly State Controlled

• Most criminal law is state criminal law, consisting of definitions of crimes and punishments in state criminal codes and in state court decisions.
• The federal criminal law, however, is rapidly growing.

Common Law Origins

• State legislatures didn’t sit down and come up with the criminal law off the top of their heads.
• The modern statutory law evolved from a long history of offenses called the common-law crimes.
• Long before legislatures existed, people existed together by following unwritten rules based on local customs—the lex non scripta.
• Common-law crimes originated in the ancient customs of the English people.
• Eventually, when literacy spread, these local customs were written down in court decisions.
• The incorporation of these unwritten rules into court decisions became the common law.
• As judges decided more and more cases, the common law became much more detailed.
• The prior decisions that judges relied on to interpret new situations came to be called precedent.
• Common law judges devised the doctrine of stare decisis that bound them to follow these precedents.

The Limits of Stare Decisis

• Stare decisis doesn’t absolutely prohibit courts from ever changing precedent.
• Precedent only binds courts in cases with similar facts.
• One way to get around precedent is to distinguish cases; that is to decide that the facts in the prior case aren’t similar enough to the one being decided to bind the court.
• Courts can also throw out a precedent directly, although they do it rarely and reluctantly; this is called overruling a case.

Common and Modern Criminal Law

• About half the states have abolished the criminal law, relying strictly on penal codes.
• The other half of states recognize the common law, at least in parts.
• Even those states who do away with the common law offenses still rely on the it for defenses or definitions.

Legal Research

• The U.S. is a common law country.
• That means that the law of the land is an evolving body of doctrine determined by judges.
• This judge made law comes from the cases that they decide.
• The law grows and evolves and old principles are adapted to new situations.

Primary Sources

• Primary sources are legal materials that are legally binding, not merely analytical or descriptive.
• Published court cases are primary authority.
• Another type of primary source is statutory law.

Statutes v. Cases

• The interplay between statutes and cases can be confusing.
• Some areas of law are determined wholly by case law
• Some wholly by statute
• And some a mix of the two
• Statutes have become more important in the criminal law in recent years; Procedural law is still dominated by case law.

Administrative Law

• Agencies are given power to make rules by congress—such as the FCCs power to regulate the air waves.
• These regulations have the force of law, and are thus a primary source of the law.
• Agencies also have a "quasi-judicial" authority to hear cases involving those rules.

The Doctrine of Precedent

• A fundamental principle of our legal system is stare decisis—the doctrine that precedent should be followed.
• The concept is based on the principle of fairness—people in similar circumstances should be treated the same way by the law.
• You can predict how you will be treated in a particular case by how another was treated in the past under similar circumstances.

The Appellate Function

• An important function of appellate courts in both state and federal systems is to establish rules of conduct for society—the creation of case law.
• A lower court in a jurisdiction is BOUND to follow a rule of law announced by a higher court in that jurisdiction in a similar case.

Cases in Point

• A case decided by a high court that deals with the issue at hand is called a "case in point."
• A case in point must have material facts very similar to the issue at hand.
• We also must check to see if the case in point has been overruled or modified by the courts.

Mandatory Authority

• Only decisions from the same jurisdiction are binding on a lower court.
• These binding decisions of the higher court in the same jurisdictions are called mandatory authority—the lower court has no choice but to follow the rule set forth by the higher court.
• Decisions from other jurisdictions are not binding and need not be followed.

Persuasive Authority

• Cases decided by courts in other jurisdictions sill may be useful to the court in determining how it will rule on a particular issue.
• This sort of guidance is known as persuasive authority—the court may be persuaded to follow it, but it may also decide to go with a completely different rule.

Statutes

• Statutes are an important source of law; research on any legal issue should consider statutory provisions.
• Statutes rarely stand alone as authority.
• It has often been necessary for the courts to interpret, clarify, and explain statutory language while resolving legal controversies.

Judicial Interpretation of Statutes

• Good legal research must include judicial opinions which have interpreted and applied the statute
• It is the courts interpretation of that statute that is binding law under the doctrine of stare decisis.

Characteristics of Primary Sources

• Chronological Publication—both case law and statutory law are published chronologically; That is, they are published in the order they were made.
• Statutes as passed by a legislative body are published in chronological order and are called session laws.

Subject Access

• To make legal research possible, we need a way to search these chronologically organized materials by subject.
• Statutes make subject access easy: Most statutes are rearranged by subject and indexed—these are usually called codes.
• Cases remain arranged chronologically and we have to have special finding tools to use them.

Official and Unofficial Publication

• The primary sources are often published both officially and commercially.
• The edition published by the government is the official version of an opinion or statute—this is the one that must be cited in legal documents.

Commercial books are more popular for two reasons:

1. They come out much quicker
2. They have handy tools that make legal research easier

Our Hierarchical Court System

• "case law" refers to the written opinions of appellate courts on specific issued raised in legal disputes.
• Only a tiny fraction of court cases result in such opinions.

The Trail Court

• The trial court is the first level of any court system.
• Every jurisdiction has a trail court of general jurisdiction at which most disputes, both civil and criminal, are initially tried.
• Trial courts are finders of fact: Unless there is a procedural problem with the fact finding process (a legal problem with the way information was arrived at), there is no appeal of matters of fact—only matters of law.

Appeals Courts

• A trail judge’s ruling on an issue of law can be appealed to a higher court.
• The next court level in most jurisdictions is an intermediate appellate court.
• An appellate court usually consists of three or more judges, who vote on the legal issue at hand after careful consideration and debate.

The Opinion

• When an appellate court decides a case, one of the judges usually writes an opinion summarizing the question, station the determination (holding) of the court, and setting for the reasoning behind the decision.
• We usually mean this type of written determination when refer to "cases" in the context of legal research.

Appeal of the Appeal

• If the losing parties in an appeal continue to believe that their opinion is legally correct, then the decision of that court can frequently be appealed to a still higher court.
• The highest court in a jurisdiction is known as the court of last resort—there is no appeal beyond this court.
• On the federal level and most states, this court is called the Supreme Court.
• This courts rulings are binding on all other courts in that jurisdiction.

Which Cases Get Published?

• Not all appellate decisions make it into the books—the decisions are selective.
• Virtually all decisions, however, of the courts of last resort are published, both state and federal.
• Often the case is a refusal to hear the case—very few types of cases get an automatic review by the Supreme Court of the United States.

Writ of Certiorari

• When the SC of the US refuses to hear a case, its action is known as "denying a petition for writ of certiorari." This is commonly abbreviated to "cert. denied."
• If the high court refuses to hear a case, it has the same effect of endorsing the lower courts ruling.

Holding and Dictum

• Under the doctrine of precedence, the holding in a case will govern other cases in the same jurisdiction when the facts and issues are substantially similar to those of the case that generated the rule of law.
• The holding (ratio decidendi) can usually be summed up in a single sentence. Everything else in the courts opinion is dicta.

Obiter Dicta

• Legal Latin for "said by the way."
• The importance of the distinction between holding and dictum is that only the holding is binding law.
• It would be unfair to use obiter dicta opinions as law because it was not argued in adversarial proceedings.
• Only issues argued before the court—the holding—should have the force of law.
• Dicta can be VERY strong persuasive authority.

Electronic Access

• LEXIS
• WESTLAW

Advantages of Electronic Access

• The primary advantage of electronic access is the ability to do full text searches.
• This removes the constraint of using publisher indexes and digests.
• It can be argued that the professional editorial treatment found in the bound volumes keep them from becoming obsolete.

Components of A Decision

• There is some variation between how cases look in print depending on the publisher.
• There are some elements of almost universal utility.

The Caption

• The caption (also called the name or style) of a case gives the names of the parties involved in the case.
• The most common form is X v. Y.
• The first party listed is usually the party bringing the suit to court—the plaintiff.
• In criminal matters, this will usually be the state.
• The second party listed is usually the defendant.

Caption Flip-Flop

• If the case is an appeal, then the first name with be the appellant or petitioner and the second is the appellee or respondent.
• This means that when a trial court decision is appealed in a criminal case, the names will be reversed: State v. Smith becomes Smith v. State on appeal.

Cases With Only One Party

• In matters concerning juveniles (and estates in civil law) the phrase In re is often used followed by the name of the party the case concerns.
• Short for "in regard to" or concerning.
• Example: In re Adoption of Baby Boy

Docket Number

• The docket number (sometimes called a record number) is assigned by the court clerk to the case when it is filed initially for the court’s consideration.
• It is the number the court uses to keep track of documents related to the case.
• This is useful in legal research for following a case before it is decided.
• Slip opinions are usually cited by docket number.

Citation

• Published opinions are cited by the reporter volume in which they appear and the page number on which the caption appears.
• The citation does not always appear, but can be readily determined by reference to the bound volume.
• Citations should include the year of the decision.
• E.g., 450 U.S. 200 (1980).
• Supreme court reporters published by private companies always cite the competition and the official citation.

Syllabus

• A summary of the case’s facts and holdings.
• In some jurisdictions, the syllabus is prepared by the court.
• Note that a court may dispose of several issues in one case.

Headnotes

• Material that describes the various points decided by the court.
• Headnotes are not a part of the holding—only the opinion itself is binding.
• If the headnotes conflict with the opinion, then the opinion prevails—use these only as finding aids.
• Most headnotes are prepared by legal experts working for the publishers.
• They are designed to help researchers locate relevant legal material.

Attorneys

• The names of the attorneys representing the parties to a case usually appear before the opinion.

Opinion

• The name of the judge actually writing the opinion appears at the beginning.
• Appeals courts will usually have more than one judge hearing a case.
• If the judges cannot agree on a decision, more than one opinion may result.
• The official opinion of the court is the one agreed on by a majority of judges, and appears first.
• If a judge is not expressly listed in a concurring or dissenting opinion, it is implied that the judge agreed with the opinion of the court.

The U.S. Supreme Court

• The Supreme Court is the court of last resort in any federal case and has final authority in federal issues raised in state courts.
• The first reports were compiled by individuals and were known as nominative reporters.
• These first ninety volumes of U.S. Reports are still cited by the name of the individual reporter.

U.S. Reports

• The official reporter for the Supreme Court of the United States is the United States Reports.
• Cited as U.S.
• This official reporter includes a syllabus—preliminary paragraphs that summarize the case and presenting the holding of the court.
• These official reports are notoriously slow, taking around three years to appear in a bound volume.

U.S. Supreme Court Reports, Lawyers’ Edition

• Published by the Lawyers Co-operative publishing company.
• Commonly referred to as "Lawyers’ Edition", it is cited as L.ed.
• After the one-hundredth volume, Lawyers’ Edition was split into a second volume.
• The second volume is cited L.Ed.2d
• The editors publish a summary of the case as well as their own headnotes.

Lawyers’ Edition Feature

• Short summaries of the briefs of counsel-these permit study on each side’s line of reasoning.
• Lawyers’ Edition is part of the "Total Client-Service Library" a name of the research system developed by the publisher which links them to other publications dealing with the same issue.

West’s Supreme Court Reporter

• Like lawyers’ co-op, West prepares its own summary, called a synopsis, and headnotes for each case.
• West’s "key number" system links cases with all other cases on the same topic in the national reporter system.

WESTLAW and LEXIS

• These are the most popular computerized databases of opinion texts.
• Computers allow for keyword searches and do not limit the researcher to the publishers’ subject headings.

Lower Federal Courts

• Below the SC in the federal system are the intermediate appellate courts and trial courts.
• Congress was given the power to create the lower federal courts by the constitution.
• There are now 13 US Courts of Appeal, consisting of the first through eleventh Circuits, the District of Columbia Circuit, and the federal circuit.
• Each court of Appeals hears cases from trial courts within its circuit, and its decisions are binding on those lower courts.

Federal Trial Courts

• The trial courts in the federal system are the United States District Courts.
• Arkansas is in the Eighth District.

Federal Reporter

• West began publishing Federal Reporter in 1880, which reports cases decisions for both circuit (appeal) and district (trial) courts.
• Cited as F. and sometimes Fed. in older works.
• Later on, it was decided that this system was too unwieldy, and the federal district courts came to be published in a set known as Federal Supplement, F.Supp.
• Only a very few of cases result in a written opinion.

Courts: Operating Principles

Jurisdiction over the Person

Geographic Jurisdiction

Venue

• Venue refers to the geographical location of the trial.
• Changing courts in the same jurisdiction does not usually raise questions of proper venue.
• The proper venue in a criminal matter is the county (in state cases) or district (in federal cases) where the crime took place.

Change of Venue

• The accused can request a change of venue.
• Appropriate grounds must exist before a judge will approve the change—usually the defendant must have no chance at a fair trial in the first location for the court to move the trail.
• The prosecution never has the right to change venue.
• Some states merely select the jury in another county and transport them to the trial.

Proving Venue

• The prosecution must show that the crime took place in the proper county or district.
• This, however, us usually only a preponderance of the evidence test.
• Venue can be proven by circumstantial evidence.

Federal v. State Issues

Appeals

• State supreme courts are the final say unless there are federal issues involved, such as constitutional rights violations.
• Courts generally do not have the right to give advisory opinions—decisions must be made by the adversarial process.

Dual Federalism

• Term used to describe the concept of two complete court systems.
• Over 95% of criminal cases are tried in state courts.
• Some counties prosecute more criminal cases per year than the entire federal system—LA County for example.

The USSC

• The US Supreme Court is the highest court in the federal system.
• The court is made up of one chief justice and eight associate justices.
• Justices are appointed by the president with the advise and consent of the senate.
• Justices may be removed only by impeachment
• The supreme court acts as a supervisory body over the entire federal system

Effects of Judicial Decisions

• In our system of justice, no one is guaranteed a perfect trail, only that it is substantially correct.
• A miscarriage of justice occurs only if, based on the entire record, the appellate court concludes that it is probable that a result more favorable to the defendant would have been reached in the absence of error.

Miscarriage of Justice

What doe Reversal Mean?

Article 1, Section 9

• The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.
• The writ of habeas corpus is literally a request for the court to order the warden or jailer to produce the prisoner and justify why he is being detained.
• The writ is often used by prisoners to attack their prison sentences.

Habeas Writ Requirements

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