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CHAPTER TWOFOUNDATIONS AND FUNCTIONS OF LAW
Provides funding for criminal justice agencies
Creates criminal laws
Determines sentencing guidelines
Legislative Role
Pre-Historical Era (Earliest History-2000 B.C.)
Societies based upon clans, tribes, or kinship
Customary Laws based upon social norms
Informal but effective law enforcement
Chiefs or elders served as judges
Use of Irrational justice Reliance on religious, ethical, and mystical considerations
The Development of Law
Early Historical Era (2000 B.C.-1000 A.D.)
Development of Written Codes Egyptians, Babylonians, Hebrews Greeks and Romans
Significance of Early Historical Legal Systems Establishment of written codes Emergence of different roles in the legal system Great Influence on the legal systems of Europe and the
U.S. Influence of Canon Law (church law) on legal systems
The Development of Law
Modern Era (1000 A.D.-Present)
Renaissance (1300s to 1600s)
Age of Enlightenment (1700s)
Reemergence of natural law Belief that there is a divine source of law higher than
any other Absolute and unchangeable law that is applicable to
all people
The Development of Law
Penal Law Criminal actions that a society prohibits
Compensatory Law Civil law dispute among private individuals
Therapeutic Law Focus on helping and treating an offender’s criminal behavior
Conciliatory Law Focus on resolving conflict and providing a winning outcome for
both parties
Typologies of Law
Code law systems
Developed from Roman and Napoleonic Codes
Features No judge-made law Emphasis on the rights of the victimized community All laws are written in a complete code Inquisitorial legal system Decisions by judicial panels
Civil Law Legal Systems
Broad ruling documents are interpreted by judicial review
Judicial rulings are considered a source of law
Emphasis on the rights of the accused
Adversarial legal system
Decisions by juries
Common Law Legal Systems
Civil Law Disputes between private parties (plaintiff and defendant) Standard of persuasion is Preponderance of the Evidence Both parties may be at fault (contributory negligence) Attorneys may represent a client on a contingency fee Sanctions include monetary damages and injunctions
Criminal Law Offenses against society (prosecutor brings the case on behalf of
the government Standard of persuasion is Beyond a Reasonable Doubt Defendant has the right to counsel Sanctions include fines, probation, or jail/prison time
Civil and Criminal Law
Substantive Law Defines the acts that are crimes Defines the penalties for criminal acts
Procedural Law Defines how a case must be processed
Attorney appointment Jury selection Evidence admissibility Criminal investigation Sentencing
Substantive and Procedural Law
Common Law Based upon a community’s norms and values Applied through stare decisis, or application of prior judicial
rulings to similar cases
Constitutional Law All other laws must comport with the U.S. Constitution State laws must also comport with that state’s Constitution Constitutionality determined by appellate judges
Sources of Law
Statutory Law Written laws enacted by legislative bodies Encompasses almost all U.S. criminal laws
Case Law Judges create law by deciding constitutional law issues Judicial policymaking
Administrative Law Federal and state agency regulations have the force of law Published in the Federal Register
Sources of Law
Degree of Evilness Mala in se: action that is evil in and of itself Mala prohibita: action that is wrong because of a law prohibiting it
Offense Seriousness Felonies
most serious offenses include possibility of imprisonment for over one year
Misdemeanors lesser offenses include possibility of imprisonment for less that one year
Petty Misdemeanors potential sentence of fines only
Crime Classifications
Mens rea Criminal intent or motivation
Actus reus Criminal act Does not always have to be completed
Concurrence Mens rea and actus reus must be present at the same time Defendant must have criminal intent and must act upon that intent
Elements of a CrimeCorpus delicti: “body of a crime”
Conspiracy Two or more people form an agreement to commit a crime, and commit an overt act toward the completion of the crime
Solicitation One person tries to persuade another to commit a crime on their
behalf
Attempt A crime is started, but is not completed
Inchoate Offenses
Justification Defenses The defendant’s actions were not legally wrong
Excuse Defenses The defendant’s actions were legally wrong, but an
extenuating circumstance excuses the action
Defenses to Crime
Self-defense A person may use necessary force in an attack The person cannot be the initial aggressor
Necessity A person may commit a criminal act to save himself
from forces of nature Example: hikers break into a cabin to save
themselves from death in a snowstorm
Justification Defenses
Duress A person commits a crime due to threat of bodily harm
Entrapment A person commits a crime that was initiated by another person The person who committed the crime would not have done so otherwise
Infancy A person who committed a crime was too young to form criminal intent Minimum age is set by statute
Insanity A person was unable to form criminal intent due to mental illness
Intoxication A person was unable to form criminal intent due to involuntary intoxication
Alibi A person could not have committed a crime because they were somewhere else
Excuse Defenses
Classified by the FBI’s Uniform Crime Reports
Crimes against Persons
Crimes against Property
Crimes against Public Order
Other Offenses
Types of Crime
Aggravated Assault
Murder and Nonnegligent Manslaughter
Forcible Rape
Robbery
Crimes Against Persons
Larceny/Theft
Burglary
Motor Vehicle Theft
Arson
Crimes Against Property
Breach of the Peace Fighting/Affray Disorderly Conduct Public Drunkenness Unlawful Assembly Carrying Weapons Obstructing Traffic Animal Abuse
Crimes Against Public Order
Crimes against Public Welfare
Crimes against Public Morality
White Collar/Corporate Crimes
Modern Crimes
Crimes Against the Government
Other Offenses
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