Criminal Law

What Are Laws?

Though laws themselves can sometimes be complicated, defining them is actually pretty simple:

Laws are a formal means of social control. They are rules that societies use to regulate and control

citizens’ behaviors. They are formal because they are created, interpreted, and ultimately enforced

by society through its government.

Though we have laws, it’s important to realize that most of our individual and collective behavior

is controlled informally, through the processes of socialization and enculturation. From the time

we are born until the day we die, appropriate behavior is taught, modeled, and continually

reinforced by our parents, relatives and friends; at school; through organized religion, organized

sports, and various media—informal social control is literally being applied all around us, all the

time. As a result, informal social control has a tremendous influence on, how we think, what we

value, how we behave and interact with others, and even what we wear.

Still, laws are important. This is especially true in this age of nation-states where a “society” like

the United States may comprise hundreds of millions of people with very different cultural

outlooks. It would be simpler for if everyone in a defined society was successfully conditioned

from birth to think and act the same way. All societies, by definition, try to accomplish just that.

In theory, laws are designed to back-up informal social control mechanisms and reflect societal

norms, mores, and traditions. In reality, however, societies are dynamic. Demographic shifts and

generational change ensure that societies can rarely claim to share a single common culture.

Moreover, the larger and more diverse a society, the more difficult it is to ensure a functional level

of conformity. That’s why laws exist.

Laws promote social control by resolving basic value conflicts, settling individual disputes, and

making rules that even our rulers must follow. Law professor, Hazel B. Kerper recognized the

advantages of law in fostering social control and identified four major limitations of the law. First,

she noted, the law often cannot gain community support without support of other social

institutions.1 (Consider, for example, the United States Supreme Court (Court) case of Brown v.

Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), which declared racially segregated

schools unconstitutional. The decision was largely unpopular in the southern states, and many had

decided to not follow the Court’s holding. Ultimately, the Court had to call in the National Guard

to enforce its decision requiring schools to be integrated.) Second, even with community support,

the law cannot compel certain types of conduct contrary to human nature. Third, the law’s

1 Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.

resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally,

the law changes slowly.2

It should also be noted that the law does not always achieve its purposes of social control, dispute

resolution, and social change, but rather can harm society, a condition Matthew Lippman refers to

as the “dysfunctions of law.”

“Law does not always protect individuals and result in beneficial social progress.

Law can be used to repress individuals and limit their rights. The respect that is

accorded to the legal system can mask the dysfunctional role of the law.

Dysfunctional means that the law is promoting inequality or serving the interests of

a small number of individuals rather than promoting the welfare of society or is

impeding the enjoyment of human rights.”3

Law professor and legal historian Lawrence Friedman identified a number of these dysfunctions.

Legal actions may be brought to harass individuals or to gain revenge rather than redress a

legal wrong. the law may reflect biases and prejudices or reflect the interest of powerful

economic interests.

The law may be used by totalitarian regimes as an instrument of repression.

The law can be too rigid because it is based on a clear set of rules that don’t always neatly

fit the facts of a case (for example, Lawrence Friedman notes that the rules of self-defense

do not apply in situations in which battered women use force to repel consistent abuse

because of the law’s requirement that the threat be immediate).

The law may be slow to change because of its reliance on precedent (Friedman also notes

that judges are also concerned about maintaining respect for the law and hesitate to

introduce change that society is not ready to accept).

The law denies equal access to justice because of inability to pay for legal services;

courts are reluctant to second-guess the decisions of political decision-makers, particularly

in times of war and crisis.

Reliance on law and courts can discourage democratic political activism because

individuals and groups, when they look to courts to decide issues, divert energy from

lobbying the legislature and from building political coalitions for elections.

Law may impede social change because it may limit the ability of individuals to use the

law to vindicate their rights and liberties.4

Public vs. Private Law

U.S. law is divided into two broad categories: public law and private law. Public law governs the

relationship between private entities (individuals, groups, organizations) the government. It

regulates societal conduct generally as well as behavior that is deemed to have an effect on the

2 Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company. 3 Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications. 4 Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.

general public or state. Private law, more commonly referred to as civil law, governs relationships

between and among private entities. It is concerned with the rights and obligations of individuals,

groups, and organizations and assists them in disputes that involve private matters.

Public law can further be broken down into three types of law, all of which are important to the

criminal justice system. These are Constitutional law, criminal law, and administrative law.

All acts that violate the law are called legal wrongs—legal in the sense that such acts constitute

violations of the law and wrong in the sense that they “wrong” (harm or injure) another party;

however, in keeping with the idea that law can be classified as either public or private, legal wrongs

can similarly be divided into public and private wrongs.

This chapter is about the criminal law; however, before we can turn our full attention to it, we need

to look briefly at the other major types of law that play a role in the criminal justice system

Constitutional Law Constitutional law refers to the body of law that develops from the text of the U.S. Constitution.

Constitutional law defines the government’s form and organization and identifies the principles by

which government is to function. It further defines the authority and responsibility of the

legislative, executive, and judicial branches of government and the nature of the relationship of

states to the federal government. Perhaps most importantly, constitutional law interprets the rights

and protections afforded to both citizens and residents.

Civil Law Civil Law refers to the body of laws that define private rights and remedies and provides the legal

mechanism by which one individual can settle disputes with another individual—for instance,

enforcing a contract between a tenant and a landlord. Civil law covers many types of civil actions

or suits including: contracts, property or real estate disputes, family law (including divorces,

adoptions, and child custody matters), intellectual property claims (including copyright,

trademark, and patent claims), and trusts and estate laws (which covers wills and probate).

The area of civil law that we are concerned with, however, involves “torts.” Torts are civil wrongs

that involve personal injury or harm—terms that are broadly defined to include physical injury or

any type of financial loss, including losses that result from damage to one’s reputation or dignity,

loss of a legal right, or breach of contract. Torts are a lot like crimes. In fact, an act can sometime

be both a violation of criminal law and a violation of civil law. For example, if Bluto punches

Popeye in the face, Popeye may sue Bluto civilly for civil assault and battery, and the state may

also prosecute Bluto for criminal assault and battery. Consider the case involving O.J. Simpson.

Simpson was first prosecuted in 1994 for killing his ex-wife and her friend (the criminal charges

of murder). After the criminal trial in which the jury acquitted Simpson, the Brown and Goldman

families filed a wrongful death action against Simpson for killing Nicole Brown and Ronald

Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive

damages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve

injuries inflicted upon a person and are the types of civil claims or civil suits that most resemble

criminal wrongs.

This isn’t always the case. Sometimes criminal behavior has no civil law counterpart. For example,

the crime of possessing burglary tools does not have a civil law equivalent. Conversely, many civil

actions do not violate criminal law. For example, civil suits for divorce, wills, or contracts do not

have a corresponding criminal wrong. Even though there is certainly an overlap between criminal

law and civil law, it is not a perfect overlap.

Under civil law, the injured party’s remedy is to sue the party who caused the wrong/injury for

general damages (money). The plaintiff (the injured party) sues or brings a civil suit (files an

action in court) against the defendant (the party that caused the harm). Plaintiffs can be

individuals, businesses, classes of individuals (in a class action suit), or government entities.

Defendants in civil actions can also be individuals, businesses, multinational corporations,

governments, or state agencies. Regardless of where the plaintiff is an individual or group, the

plaintiff brings the suit in their own name (e.g., Popeye the Sailor versus Bluto the Terrible).

The primary purpose of a civil suit is to financially compensate the injured party. The amount of

damages is theoretically related to the amount of harm done by the defendant to the plaintiff.

Sometimes, when the jury finds there is particularly egregious harm, it will decide to punish the

defendant by awarding a monetary award called punitive damages in addition to general damages.

Plaintiffs may also bring civil suits called injunctive relief to stop or “enjoin” the defendant from

continuing to act in a certain manner.

In a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the

injury and the harm. To meet this burden, the plaintiff will call witnesses to testify and introduce

physical evidence. In a civil case, the plaintiff must convince or persuade the jury that it is more

likely than not that the defendant caused the harm. This level of certainty or persuasion is known

as preponderance of the evidence. Another feature in a civil suit is that the defendant can cross-

sue the plaintiff, claiming that the plaintiff is actually responsible for the harm.

Administrative Law Administrative law refers to the body of laws, created and enforced by government agencies, to

regulate both the internal operations of government as well as the general conduct of society.

Government agencies sometimes create criminal law, but mostly they create all of the rules that

govern society on a day-to-day basis. Administrative law, in fact, is more commonly referred to as

administrative rules or regulations. It comprises the majority of all laws that govern our lives, from

establishing requirements for a professional license to governing amusement park rides to

mandating leash laws. Unlike criminal law, where a certified and commissioned law enforcement

officer may have the authority to broadly enforce all criminal laws within his or her jurisdiction,

enforcement of administrative law is nearly always carried out by the same agency that

promulgated the rules and specifically by government employees with no special law enforcement

status. Administrative law defines violations and provides for penalties such as fines or revoked

status or license.

There are exceptions to these basic definitions that are beyond the scope of this introduction, but

it is important to remember that there is often significant overlap in the type of conduct governed

by each of these three categories of law. In some cases, an individual’s actions may simultaneously

be considered a crime, an administrative violation, and a tort. Moreover, each could be separately

addressed and penalized, meaning that an individual could theoretically receive three punishments

for a single act. Indeed, multiple punishments arising out of the same set of facts is not uncommon.

Though the criminal justice system exists, primarily, to enforce the criminal law using criminal

processes and sanctions, law enforcement agencies sometimes instead invoke administrative law

or initiate civil lawsuits to address criminal behavior. Likewise, administrative and civil laws are

sometimes used to limit how criminal justice agencies carry out their responsibilities.

Criminal Law Criminal law refers to the system of legal rules that define what conduct is classified as a crime,

what the punishments for specific crimes will be, and how the government may prosecute those

who commit crimes.

Criminal wrongs, also known as crimes, are behaviors that are deemed harmful to all of society—

not just the direct victim of the behavior. Because of this, the potential sanctions for committing a

criminal wrong are greater than for civil wrongs. In fact, the most obvious difference between

crimes and all other acts that violate the law, is that crimes are the only violations that can result

in a loss of personal liberty—either imprisonment or in some instances, for the most serious

offenses, death. The criminal law also commonly sanctions offenders with fines.

A crime is an act, or a failure to act, that violates society’s rules. The government, on behalf of

society, is the plaintiff. A criminal wrong can be committed in many ways by individuals, groups,

or businesses against individuals, businesses, governments or with no particular victim.

Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its

government agents, holds criminal wrongdoers accountable for their actions. Sanctions or

remedies such as incarceration, fines, restitution, community service, and restorative justice

program are used to express societal condemnation of the criminal’s behavior. Government

attorneys prosecute, or file charges against, criminal defendants on behalf of society, not

necessarily to remedy the harm suffered by any particular victim. The title of a criminal

prosecution reflects this: “State of Oregon v. Bluto the Terrible,” “The Commonwealth v. Bluto

the Terrible,” or “People v. Bluto the Terrible.”

Whether a criminal case is tried before a panel of citizens in a jury trial or a just a judge in a

bench trial, the process is the same. The prosecutor representing the government has the burden

of proof to demonstrate the defendant’s guilt. In a criminal trial, the standard of proof necessary

to demonstrate guilt in a criminal trial is much higher than what must be met in a civil trial. In a

criminal trial the prosecutor must prove the defendant’s guilt “beyond a reasonable doubt.” To

meet this burden, the prosecutor will call upon witnesses to testify and may also present physical

evidence suggesting the defendant committed the crime. Just as a private individual may decide

that it is not worth the time or effort to file a legal action, the state may decide not to use its

resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot

force the state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–

for example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek

monetary damages against the defendant.

Moral Wrongs One of the dysfunctions of law is that it does not, and arguably cannot, address every purposeful

act that causes harm. This reality gives rise to the concept of the moral wrong. In the United

States, moral wrongs differ from legal wrongs in that they technically cannot be addressed by the

law. Moral wrongs involve actions that violate generally accepted rules of morality as established

by the cultural norms of the community.5 Because there is so much overlap between our laws and

our shared concept of morality, it isn’t always easy to see the distinction between moral and legal

wrongs. But one should not make the mistake of conflating law with morality. Most of our current

laws are pragmatic and have little to no basis in morality. Conversely, many behaviors that we

deem immoral are nonetheless perfectly legal.

5 Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.

Criminal and Civil Law Compared

Substantive vs. Procedural Law All law, public and private, consists of two parts: The first part, called substantive law, tells us

how to behave. It defines the rights and obligations of individuals in society. Criminal statutes,

ordinances, rules, and civil responsibilities are all examples of substantive law. The second part,

procedural law, tells the government how to behave. It defines and regulates the processes

through which the government carries out enforcement of substantive law.

Normally, when people talk about criminal law, what they mean is substantive criminal law. To

avoid confusion, people often refer to the procedural portion of criminal law as criminal

procedure. Likewise, it is common to refer to administrative procedure and civil procedure.

Substantive criminal law tends to gets most of the attention. Based on their consumption of

televisions shows, movies, books, and other media, Americans have a fascination with both crime

and punishment. Procedural law? Not so much. Even so-called “police procedural and legal

dramas,” like the Law and Order franchise, tend to focus their story lines on “substance” of that

week’s crime than on the procedural framework of the justice system. To the extent that procedural

law makes an appearance, it is normally depicted as a bureaucratic obstacle that stands in the way

of solving the crime or prosecuting the bad guy.

Criminal prosecution Civil litigation

Can only be initiated by the government on

behalf of the public

Can be initiated by any person or entity on

his/her/its own behalf

The state files charges against a defendant The plaintiff files a civil complaint against a

defendant

Standard of proof: Beyond a reasonable

doubt

Standard of proof: Preponderance of the

evidence

Defendant has a right to an attorney Defendant has no right to an attorney

Defendant has a right to a speedy trial Defendant has no right to a speedy trial

Significant procedural protections for

defendant

Limited procedural protections for

defendant

Does not require a victim* Victim always required

Does not require injury or harm Injury or harm is always required

Intentional act is almost always required The harm need not be intentional

Goal: to punish the offender Goal: to compensate the injured party

* Certain crimes, like illicit drug use, are considered by many to be “victimless” crimes in the sense that

they do not have a clearly identifiable victim or tangible harm.

In reality, criminal procedure is an equally important if not more important part of the criminal

justice system in the United States. In fact, the procedural component is what truly distinguishes

criminal from administrative or civil law. In governing the process by which the state carries out

enforcement of the law, procedural law offers those accused of violating the law a number of

protections against governmental abuse of power. Those protections increase based on the severity

of the potential consequences. Criminal law regulates the most harmful conduct and provides for

the harshest potential punishments. Crimes are the only violations of law that may be punished by

incarceration—confinement in a jail or prison for some specified term—or in some cases, death

by execution, also known capital punishment. For that reason, procedural protections under

criminal law are very robust.

Perhaps the most important protection available to criminal defendants is a legal principle known

as the presumption of innocence, which requires the government to operate from the premise that

the accused is innocent and requires the government to prove its allegations. The government’s

obligation in this sense is known as a burden of proof. The term burden of proof refers generally

to any party’s obligation under the law to prove its assertions. In criminal cases, where the

government accuses an individual of violating the law, it is always the government that must

specifically prove its allegations. The government, moreover, must prove its allegations to a certain

degree or standard of proof. Just as with other procedural protections, the standard of proof is

much higher under criminal law than in administrative or civil law. These concepts will be

discussed in great detail later on.

Sources of Criminal Law

Now that you have an idea of what makes criminal law different from (and in some cases, similar

to) other types of law, it’s a good time to point out that criminal law can also be understood and

defined by its source—that is, how it was created. Criminal law comes from four places: the U.S.

By virtue of its authority to define and enforce law, the government wields a

great deal of power over members of the public. The authors of the U.S.

Constitution recognized this and many were concerned with placing limits

on that power. As a consequence, they designed a system of government

with three, roughly co-equal, branches of government (executive,

legislative, and judicial), each with separate functional responsibilities but

overlapping authority. The so-called “checks and balances” that each

branch exercised over the others was designed to allow for a strong,

effective government while simultaneously protecting citizens from

government tyranny. The principle that law should govern a nation, as

opposed to being governed by arbitrary decisions of individual government

officials is known as the rule of law. The emphasis on rule of law can be

found throughout the U.S. legal system in the form of procedural law.

Constitution, legislative statutes and ordinances, administrative rules and regulations, and case law

precedent.

The Constitution The federal Constitution (more commonly referred to as the U.S. Constitution) is the source of

all law in the United States. It both establishes and serves to regulate the federal government of

the United States. Each state also has its own state constitution that regulates the government of

that state and which is subordinate to the federal constitution. It’s important to remember that the

federal and state constitutions only regulate government and by extension, the actions of public

officials. Other than three notable exceptions (treason, piracy, and counterfeiting), the U.S.

Constitution does not directly regulate the conduct of private individuals or entities.6 There is

nothing in the U.S. Constitution (or any of the state constitutions), for instance, that prohibits

people from committing murder, robbery, assault, or theft. Instead, the Constitution provides for

and specifically defines a governmental framework and process through which criminal laws may

be created and enforced. Put another way, the Constitution gives us the authority to and a defines

a process by which to create a criminal justice system.

At the same time, the Constitution also places limits on governmental authority. The drafters of

the Constitution were so concerned about two historic cases of abuse by English Parliament (ex

post facto laws and bills of attainder) that they prohibited Congress from passing these types of

laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post

facto laws are laws that are retroactively applied, or punishments retroactively increased, or

changes in the amount and types of evidence that is required of the government in order to

successfully prosecute an individual. Bills of attainders are laws that are directed at named

individual or group of individuals and has the effect of declaring them guilty without a trial. Most

of the other limitations are found within the first ten amendments to the U.S. Constitution, which

are collectively known as the Bill of Rights.

Statutory Law Whereas the Constitution is the existential foundation of all law in the United States, the legislative

branch is its practical source. The U.S. Constitution specifically envisioned a system in which one

of the government’s co-equal branches—specifically the legislative branch—would have primary

responsibility for drafting and enacting laws (a process known as legislating) on behalf of the

public it represents. Such laws begin as proposals or bills, which, after a period of discussion and

revision, may be voted on by elected members of the legislative body. Those that are passed into

law—that is to say, approved by the legislative body—are published as statutes.

At the federal level, the legislative branch is referred to as the U.S. Congress and is further divided

into two representative bodies known as the Senate and the House of Representatives. To become

6 For example, the 1st Amendment to the U.S. Constitution prohibits the government from interfering with a private

citizen’s free speech, but it cannot prohibit a private company from do so.

law, bills must be approved by both houses of Congress as a means of ensuring the nation’s laws

have broad support and reflect the will of the people. All but one of the states have similar

bicameral (two-house) state legislatures and create statutory law through a similar process.7 It

should be noted, however, that about half of the states also provide a method by which citizens of

the state can directly vote state statutes into law. For example, Oregon’s Measure 11 was a citizens'

initiative, passed in 1994, that established mandatory minimum sentencing for several serious

crimes.

Local governments also have legislative bodies that vary in terms of organization and authority.

Counties generally have “commissions” and municipalities (cities) generally have “councils” that

pass ordinances. Ordinances usually relate to health, safety, or welfare, and typically represent

less serious violations. A law enacted by a city council and which prohibiting jaywalking within a

city limits is an example of an ordinance. Because ordinances come into being through a similar

legislative process, they are considered part of statutory law. Most substantive criminal law is

statutory law.

Though statutes are written and published so that they are accessible to the public and may be

referenced or researched, statutes are quite inconvenient. Statutes, after all, are ordered

chronologically. And since the purpose of most statutes is to revise the language of previous

statutes, a person trying to look up a single law might have to search through dozens of statutes

over multiple years. To make it easier, the federal government and each of the states further codify

their statutes—that is, organize and publish their statutes into a more usable format. The portion

of that code that collects the criminal statutes together is known as a criminal code (or penal code

in some states). These are called by a variety of different names. Oregon’s code, for instance, is

called the Oregon Revised Statutes.

Because each state is responsible for enacting its own statutes, criminal laws often differ

significantly from state to state. In the early 1960s, the American Law Institute, an organization

made up legal scholars, lawyers, and judges, published a set of suggested criminal statutes called

the Model Penal Code. The intent of the Model Penal Code was to provide a standardized set of

criminal statutes that all states could adopt, thus simplifying the diversity effect of the United

States’ legal system. While the Model Penal Code has not been universally adopted, a majority of

the states have incorporated portions of it into their penal codes, and the Model Penal Code

survives as a guideline and focal point for discussion when state legislatures modify their criminal

statutes.

Administrative Law Administrative laws form the third source of criminal law. Though most administrative law is not

criminal law, there are nonetheless a significant number of administrative regulations that carry

criminal sanctions. Unlike statutes, administrative laws (more commonly called rules or

regulations) are enacted by constitutionally or statutorily created executive branch agencies.

7 Nebraska has a unicameral or single chamber, legislature.

These administrative agencies exist at both the federal and state levels and are granted varying

degrees of authority to create regulations (as well as carry out some judicial functions). The Food

and Drug Administration (FDA) is an example of a federal administrative agency. It was created

by federal statute—the Federal Food, Drug, and Cosmetic Act—to regulate food, drugs, and

cosmetics in the United States. The same statute that created the agency also grants it authority to

create administrative regulations to carry out its mission. Because administrative law derives its

authority from statutory law, administrative laws can, in theory at least, never supersede or conflict

with statutory law. Administrative laws that carry criminal penalties are sometimes called

regulatory crimes or criminal regulations.

Case Law The fourth source of law is case law, a form of law based on judicial opinions (so-called because

it develops case by case). Case law effectively allows courts the flexibility to fill gaps in the law,

add specificity to an otherwise vague law or procedure, and tailor generic statutes and legal

principles to a unique set of facts. To ensure consistency in the law, judges adhere to a policy

called stare decisis—a legal principle derived from English common law that compels judges to

follow rulings in previous cases. Such rulings are referred to as precedent. Once judges have

issued a ruling on a particular case, the public can be assured that the resulting precedent will

continue to be followed by other judges.

The strength of this system is that it increases efficiency, equality, stability, and predictability in

the law. It is more efficient because each trial judge and the appellate judge does not have to work

out a solution to every legal question. Greater equality results when one rule of law is applied to

all persons in the same setting. The idea is that identical cases, even when brought before different

judges, should produce identical results. Stare decisis increases predictability in that the police,

the prosecutor, the accused and his defense counsel all have access to past decisions and call all

operate on the premise that past rules will define the present case. In addition, stare decisis

increases the collective wisdom and experiences of judges, past and present, bringing their shared

knowledge to bear on each case. Combined, each of these strengths, has the additional benefit of

enhancing the image of the courts as an impartial interpreter of the law.

As a general rule, judges tend to follow precedent that is newer, from a higher court, and from the

same court system, either federal or state. Though stare decisis is an important principle, it is not

absolute; judges can deviate from it to update the law to conform to society’s modern expectations.

English Common Law

U.S. law, of course, was not invented in 1789. Just as the Constitution was influenced by

developing philosophies about government and law, U.S. law had its origins in English common

law. Case law, in fact, is an extension of English common law.

On the European continent, long before the settlement of the American colonies that would

ultimately become the United States, most kingdoms followed the system of Roman law, which

primarily relied on written codes of conduct. In England, however, case law was the most prevalent

source of law. Case law in England was mired in tradition and local customs and both processes

and outcomes differed from region to region and town to town. In the 12th century, in an effort to

consolidate his authority, King Harold II instituted a system of judges who would annually travel

the kingdom to hear disputes and dispense rulings. As they did so, they brought with them the legal

precedents of the central court in Westminster and tended to overrule local customs in most cases.

Still, the itinerant nature of their work made it difficult to keep track of the myriad rulings in every

locale. Eventually, in an attempt to be more efficient, the judges began to write down their

judgements and bring them back, where they were consolidated into a developing body of case

law which served as precedent for future rulings and created a uniform system of laws throughout

the country. This English form of case law came to be called common law because it was common

to the entire nation. Common law had no basis in legislation and was created entirely by the courts.

The English system made its way to the United States with the original colonists. Initially, the

thirteen colonies unanimously adopted common law as the law of the land. Virtually all crimes

were common-law crimes, which along with their associated punishments and defenses, were

defined by rulings in previous cases. Over time, due to differences in the social and economic

conditions between the United States and the United Kingdom, common law in the United States

began to develop some differences. Following the Revolutionary War, hostility toward England

and modern reform led to the gradual erosion of common-law crimes and a movement toward

codification. States began replacing common-law crimes with statutes enacted by state legislatures.

Oxford professor Sir William Blackstone’s Commentaries on the Law of England, which

interpreted and summarized English common law, became an essential reference as the nation

began the process of converting common-law principles into written statutes, ordinances, and

penal codes.

Limitations on Common-Law Crimes In the present day United States, most criminal laws are statutory. Though judges interpret the

criminal law, federal judges and those in the many states that do not allow common-law crimes

cannot create crimes. Instead, statutes must define criminal conduct. If no statute exists to

criminalize the defendant’s behavior, the defendant cannot be criminally prosecuted, even if the

behavior is abhorrent.

This prohibition is based on notions of fairness as well as practicality. After all, inventing new

crimes from the bench and then punishing defendants for them can lead to inconsistency and

unpredictability and hence, go against the very purpose of law and punishment. Common-law

crimes also violate the principle of legality, a core concept of American criminal justice embodied

in this phrase: “Nullum crimen sine lege, nulla poena sine crimen” [No crime without law, no

punishment without crime]. Some have argued, as well, that common-law crimes exceed the

courts’ functional authority under the Constitution and directly violate the Constitution’s

prohibition against ex post facto laws.

Nonetheless, the common law still plays an important role in criminal lawmaking, even though

most crimes are now embodied in statutes. The classification of crimes as felonies and

misdemeanors is a reflection of English common law and legislatures often create statutes out of

former common-law crimes. Judges, moreover, look to the common law when defining statutory

terms, establishing criminal procedure, and creating defenses to crimes. The United States, in fact,

is still considered a common-law country. Every state except Louisiana, which is based on the

French Civil Code, adopts the common law as the law of the state except where a statute provides

otherwise.

The Hierarchy of Law

Superiority of the Constitution Of the four sources of law, constitutional law is the highest and cannot, in theory, be superseded

by any one of the other three sources of law. It is, in fact, the source of all other laws under the

United States legal system. Sometimes, statutory and administrative laws are enacted that appear

to conflict with constitutional law. In those cases, the courts must resolve the conflict. If the

conflict is real, courts can invalidate the statutes and administrative laws as unconstitutional and

unenforceable. This authority is known as the power of judicial review. Judicial review, in theory,

also renders any conflict between constitutional law and case law impossible since the Constitution

ultimately means what the courts say it means. Because the Constitution is a brief document that

only outlines the most basic structure, function, and limits of the government, the courts have been

able to interpret the Constitution in ways that carve out some exceptions to constitutional law in

the name of public safety. For example, public schools and prisons can mandate a certain style of

dress for the purpose of ensuring safety. Technically, forcing an individual to dress a specific way

could violate the right to self-expression, which the First Amendment guarantees. However, if

wearing a uniform can lower gang-related conflicts in school and prevent prisoners from

successfully escaping, the government can constitutionally suppress free speech in these locations.

The Principle of Federalism The United States’ system of government is called federalism. Federalism, as set forth in the US

Constitution, divides governmental power between the federal government and each of the states.

This prevents a concentrated source of governmental power in one individual or small group of

individuals. Because of federalism, the United States has one federal legal system, and each state

has its own state legal system.

The Scope of Federal Law The federal government’s power to regulate comes from Article I, § 8 of the Constitution, which

discusses Congress’s exclusive or delegated powers. These include the power to regulate currency

and coin, establish a post office, promote science and art by regulating the rights to discoveries

and writings, declare war and raise armies, conduct foreign affairs, regulate interstate and foreign

commerce, and make laws necessary and proper to execute other powers expressly granted in the

Constitution. Courts have interpreted the “commerce clause” and the “necessary and proper

clause” to be the broadest sources of federal regulatory authority.

Federal laws are meant to regulate in two areas. First, federal laws regulate issues that concern the

country, rather than just one city, county, or state. The federal government regulates in the area of

foreign affairs, for example, because this affects the United States of America, not just one

particular region. Second, federal laws regulate interstate commerce, which is economic activity

that crosses from state to state. Some common examples are television broadcasts, the Internet,

and any form of transportation such as the airlines.

The original intent was for the federal government to be a limited government, leaving most

governing power in the hand of the states. As was noted above, the Constitution only identified

three crimes that may be specifically punished by the federal government: piracies and felonies on

the high seas, counterfeiting, and treason—and even these, the Constitution fails to define. Case

law, however, has tremendously expanded the federal government’s power to enact criminal laws

based on the aforementioned commerce and necessary and proper clauses. In general, federal

criminal laws target conduct that occurs on federal property or conduct involving federal

employees, currency, coin, treason, national security, rights secured by the Constitution, or

commerce that crosses state lines. Currently, over five hundred crimes are listed in Part I, Title 18

of the United States Code, which codifies criminal laws for the federal government. Still other

crimes can be found scattered throughout the rest of the code.

The Scope of State Law The US Constitution designates the states as the primary regulatory authority. This is clarified in

the Tenth Amendment, which reads, “The powers not delegated to the United States by the

Constitution, nor prohibited to it by the States, are reserved to the States respectively, or the

people.” State laws are also supposed to regulate in two areas. First, state laws regulate issues of a

local character or concern. A state may regulate, for example, state resources such as timber on

state lands. Second, state laws regulate issues or things that remain within a state’s border. A state

generally regulates, for example, the operation of a small business whose products are only sold

locally and not shipped out of the state.

Federal laws are the same in every state, but state laws differ from state to state. Something that is

legal in one state may be illegal in another state. This inconsistency makes our system of federalism

complicated. However, with a country as large and varied as the United States, it is sensible to

allow each state to choose for itself which laws will be most suitable.

Because the Constitution provides for only a few areas in which the federal government can

regulate the behavior of citizens, the power to enact criminal laws belongs almost exclusively to

the states. Approximately 90 percent of all criminal laws are state, rather than federal. Often,

federal crimes are also state crimes and can be prosecuted and punished by both the state and

federal government.

Federal Supremacy Our legal system is divided up to conform to the principle of federalism, so a potential exists for

conflict between federal law and state law. A federal law may make something illegal; a state law

may insist that it is legal. Whenever a conflict occurs between federal and state law, courts must

follow the federal law. This is called federal supremacy. As the Supremacy Clause of Article VI

of the federal Constitution states,

This Constitution, and the Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

Classification of Crimes

In this next section, we turn to the various ways that criminal law has been classified. Classification schemes

allow us to discuss aspects or characteristics of the criminal law. Some classifications have legal

significance, meaning that how a crime is classified may make a difference in how the case is

processed or what type of punishment can be imposed. Some classifications had legal significance

in the past but no longer have much consequence. Finally, some classifications have no legal

significance, meaning the classification exists only to help us organize our laws.

In common law, conduct was classified into two types based on its perceived morality. Malum in

se crimes (a Latin phrase that translates to “evil in itself”) involve conduct that is considered

inherently evil or wrong. Malum prohibitum crimes (a Latin phrase that translates to “wrong as

prohibited”) involve conduct that is considered wrong only because it is prohibited. Crimes like

murder, rape, and robbery are malum in se crimes because they are considered evil, immoral acts

across all cultures. Conversely, some behaviors, like failing to pay one’s taxes, are only crimes

because the law makes them so. Malum prohibitum crimes are generally regulatory in nature.

Classifications Based on Seriousness of Offense Under current U.S. law, crimes are generally “graded” based on the severity or seriousness of the

harm inflicted on the victim as well as the criminal’s intent and then classified into two basic

categories: felonies or misdemeanors. Felonies are the most serious crimes. They are either supported

by a heinous intent, like the intent to kill, or accompanied by an extremely serious result, such as

loss of life, grievous injury, or destruction of property. Misdemeanors are less serious than

felonies, either because the crime requires less intent or because the result is less extreme.

The federal government defines additional grades within each category to further distinguish

crimes by their severity. The federal model identifies five classes of felonies (A, B, C, D, and E)

and three classes of misdemeanors (A, B, and C) with “Class A” representing the most serious

offenses, “Class B” the next most serious, and so on. Many states, including Oregon, classify

crimes in a similar manner though some states refer to “Levels” or “Degrees” rather than “Classes”

and use numbers instead of letter grades (e.g. Level 1 Felony, 2nd Degree Misdemeanor, etc.). The

Model Penal Code, for instance, uses a numbered classification system and refers to the levels as

“degrees.”

Under this approach, the legislature also typically sets a maximum punishment or punishment

range for each offense class. This prevents lawmakers from having to separately define specific

punishments for each and every crime in the criminal statutes and prevents those who participate

in sentencing negotiations or determinations from potentially having to spend a great deal of time

memorizing or researching individual statutes. See the table below for Oregon’s classification

scheme.

Criminal Penalties under Oregon Law

Maximum Term

of Imprisonment

Maximum

Fine

Murder or Aggravated Murder $500,000

Class A Felony 20 years $375,000

Class B Felony 10 years $250,000

Class C Felony 5 years $125,000

Class A Misdemeanor 364 days $6,250

Class B Misdemeanor 6 months $2,500

Class C Misdemeanor 30 days $1,250

Source: ORS 161.605-635 (2017)

It’s use as a punishment scale raises the question of whether the classification system is based on

the seriousness of the offense or rather on the seriousness of the punishment. Obviously, the

punishments themselves are set based on the seriousness of the offense. However, judging the

“seriousness” of an offense is quite subjective whereas fines and terms of imprisonment provide

clear, objective measurements. As a result, the line between felonies and misdemeanors is, more

often than not, defined by the potential term of incarceration. In line with federal law, felonies are

generally defined as crimes punishable by imprisonment for more than one year or by death while

misdemeanors are defined as crimes punishable by imprisonment of a year or less. Another

distinction involves where that imprisonment is to take place. With few exceptions, felons serve

their time in prison while misdemeanants serve their time in a jail. The difference between prisons

and jails will be discussed in greater detail in a later chapter.

In some states, there exists a third ambiguous category of crimes known as “wobblers” or Felony-

misdemeanors. These are crimes that the government can prosecute and punish as either a felony

or a misdemeanor, depending on the particular circumstances of the offense or the offender’s

criminal history, as defined by the statute. The discretion whether to prosecute the crime as a felony

or misdemeanor usually belongs to the judge, but in some instances, the prosecutor can make the

decision. This category is important because the difference between being charged with a felony

or misdemeanor may have legal implications beyond the length of the offender’s sentence and in

what type of facility an offender will be punished. For example, in some jurisdictions, the authority

of a police officer to arrest may be linked to whether the crime is considered a felony or a

misdemeanor. In many states the classification impacts which court will have the authority to hear

the case. In some states, the felony-misdemeanor classification determines the size of the jury.

Finally, it is important to remember that criminal law in the United States is far from uniform or

consistent. Some states do not use such sub-categories, and instead, enact a specific punishment

range into the statute for each individual crime. Even jurisdictions that employ this classification

system make exceptions and define punishments for certain crimes directly within the criminal

statute.

While most all crimes are either felonies or misdemeanors, the felony/misdemeanor classification

does not account for all offenses that occupy the resources of the criminal justice system. Another

class of offenses, often called infractions or simply violations, encompass a whole range of minor

behaviors that are considered public wrongs but which are not serious enough to be classified as

Felonies and Misdemeanors as Defined by Oregon Law

"Except as provided [elsewhere in the statutes] a crime is a felony if it is so designated

in any statute of this state or if a person convicted under a statute of this state may be

sentenced to a maximum term of imprisonment of more than one year." 2017 ORS

161.525

"A crime is a misdemeanor if it is so designated in any statute of this state or if a

person convicted thereof may be sentenced to a maximum term of imprisonment of not

more than one year." 2017 ORS 161.545

At one time, all felonies were punishable by death and forfeiture of goods, while misdemeanors

were punishable by fines alone. Laws change over time, and as capital punishment became

limited to only certain felonies (like murder and rape), new forms of punishment developed.

Today, felonies and misdemeanors alike are typically punished with fines, incarceration (i.e., a

period of confinement) or a combination of both.

misdemeanors. Examples include jaywalking, littering, and traffic offenses. Under federal law and

the law of some states, infractions may be criminal. In many states, however, infractions are not

crimes but rather administrative violations. Whether an infraction is a crime or not depends, again,

on the potential punishment. Crimes can result in a term of imprisonment, administrative violations

cannot. Infractions are generally punishable by a fine or alternative sentencing such as traffic

school.

Classifications Based on the Type of Harm Inflicted Almost all state codes classify crimes according to the type of harm inflicted. The Model Penal

Code uses the following classifications:

Offenses against persons (e.g., homicide, assault, kidnapping, and rape)

Offenses against property (e.g., arson, burglary, and theft)

Offenses against family (e.g., bigamy and adultery)

Offenses against public administration (e.g., bribery, perjury, escape)

Offenses against public order and decency (e.g., fighting, breach of peace, disorderly

conduct, public intoxication, riots, loitering, prostitution)

Classifications based on the type of harm inflicted may be helpful for the purpose of an

organization, but some crimes such as robbery may involve both harms to a person and property.

Whether a crime is a person or property crime may not have any legal implications when a person

is convicted, but it may matter if and when the person commits a new crime. Most sentencing

guidelines treat individuals with prior person-crime convictions more harshly than those

individuals with prior property-crime convictions. That said, it is likely that the defense will argue

that it is the facts of the prior case that matter not how the crime was officially classified.

Applying Criminal Law

Now that you have a basic understanding of the origins and development of U.S. criminal law, it

functional purpose and the ways in which it is organized and classified, we will turn to the more

practical subject of how the criminal law is applied. Recall that in a criminal trial, the defendant is

presumed innocent until proved guilty and that the government bears the burden of proof—that is,

a government prosecutor must demonstrate the defendant’s guilt, at trial, to the satisfaction of a

judge or jury. Because the defendant will, in most cases, denying any involvement or responsibility

for the conduct under question, the prosecutor has to demonstrate the defendant’s guilt using

evidence from other sources.

Evidence Evidence is classified into two basic types—direct and circumstantial. Direct evidence proves or

disproves an assertion directly. The most common type of direct evidence is witness testimony in

which a witness tells the court what he or she saw. Direct evidence can also be physical evidence,

such as illegal drugs found in the possession of the accused, or documentary evidence, such as a

photograph or video that shows the accused committing assault. Circumstantial evidence, on the

other hand, does not directly prove or disprove an assertion. Rather, it can only indirectly support

or contradict an assertion through inference. For instance, finding the defendant’s fingerprints at

the scene of a burglary does not prove that the defendant committed the burglary, but it does

indicate that the defendant was probably there at some point and thus could have done so. Taken

in concert with other circumstantial evidence, we may be able to infer from the evidence that the

defendant probably committed the crime. Witness testimony and documentary evidence can also

be circumstantial—as when, for example, a witness testifies that he sold the defendant the gun that

was ultimately used in a criminal homicide. Physical evidence—such as the gun in the previous

example—is often circumstantial. Neither the witness testimony nor the gun directly proves that

the defendant committed murder, but we may infer from that evidence that he did.

We generally go about our day-to-day existence without demanding proof. We usually take people

at their word until they give us a reason not to. We also rely almost exclusively on inferences to

navigate life. Think about the simple act of ordering a hamburger. You have a general idea that a

hamburger will consist of a beef patty in between two halves of a bread bun. It probably has some

other ingredients as well—perhaps lettuce, tomato, cheese, onion, and some condiments. Even if

you have never eaten a hamburger before or seen one made, you probably assume that the

hamburger you order will have these items on it because you are familiar with the concept of a

hamburger, perhaps from its depiction in advertisements or from other people have told you. Even

if you have eaten hamburgers all your life or you work as a short-order cook in a restaurant that

exclusively makes hamburgers, when you order your hamburger, you are relying on inference. No

one demands that the restaurant prove that the hamburger patty was cooked or that it was cooked

recently. We infer that it was because it is warm. No one requires laboratory testing to certify that

the patty is actually beef. We infer it from what we have been told.

Because we operate this way in our daily lives, most people tend to apply the same approach to

their understanding of criminal law. We all have a pretty good idea, for instance, of what murder

involves, so when we see something that looks like murder, we tend to call it that, and when

presented with other facts we associate with murder, we tend to jump to conclusions. Consider the

following scenario. The police arrest a man on suspicion of murder. From newspaper reports, we

learn that the suspect was “known to law enforcement” and that the suspect had been involved in

a fight with the victim the night before. Perhaps we hear from a friend who tells us that he knows

someone who used to hang out with the suspect and said that he had been in prison. Most of us

will infer from such information that the suspect is guilty of murder even though none of the

information is truly evidence that supports that inference.

Thankfully, criminal law is more methodical and requires that inferences be logically supported.

Criminal Elements

The burden of proof really requires that prosecutors prove two separate but connected things. They

must prove that the defendant committed the act for which they are accused. Prosecutors must also

prove that the act constituted a crime, as defined by the statute. Moreover, the text of a statute is

broken down into a number of separate definitional requirements—known as elements of the

crime—that must be present in the facts for a violation of the statute to have occurred.

A bicycle is commonly defined as a two-wheeled vehicle that you sit on and propel forward by

turning two pedals. If we applied that definition to other forms of transportation, we would quickly

see that the definition of a bicycle is quite specific. Many conveyances have more than two wheels.

Some two-wheeled conveyances (like motorcycles, Segways, and hover boards) are powered by

motor. A unicycle, like a bicycle, is something you sit on and pedal, but unlike a bicycle, only has

one wheel. If we were trying to determine if some object was a bicycle, we would have to apply

every part of the definition. Similarly, if we were trying to determine if some act was criminal, we

would have to apply every element of the definition. Understanding these elements is fundamental

to understanding how criminal law works at the operational level. In order to demonstrate that a

defendant violated a criminal statute, the prosecutor must prove each element of the offense

beyond a reasonable doubt.

Sometimes, no matter how clear and specific the definition, it may not be obvious whether the

definition applies. To continue with the bicycle analogy, is a bicycle with an added electric motor

no longer a bicycle? What about a bicycle with two additional training wheels? Does it qualify as

a bicycle if rather than sitting upright, the rider has to lie horizontally? Definitions of crimes are

no different in this respect. When the prosecution and defense differ over whether specific behavior

constitutes a crime (and they often do), it is ultimately up to the court to interpret the law. In doing

so, the court creates a precedent that future courts are obligated to follow.

Most every crime has at least three elements: a criminal act, criminal intent on the part of the

offender, and concurrence of the two. Not all crimes require that the actions of the offender produce

a tangible harm to the victim, but some do. In such statutes, there is an additional element that

must be proved that is known collectively as causation and harm. Many statutes also require other

presence of other specific factors such as a specific location, specific victim characteristics, or the

manner in which the crime was carried out. These elements are called attendant circumstances.

Familiarity with how criminal statutes are constructed is the key to understanding what defines a

given crime. Knowledge of the elements of specific crimes and the ability to apply those elements

to specific conduct is critical to determining what crimes have been committed and, indeed,

whether any crime has been committed. Delving into the elements of specific crimes is beyond the

scope of this book but the basic overview of criminal elements that this section provides will serve

as a basic building block for understanding the complexities of law enforcement, criminal

prosecution and defense, and adjudication.

To prove this second piece requires a close reading of the relevant statute and an understanding of

how the courts have interpreted that statute.

Remember that there can be no crime without a law. No matter how offensive a person’s conduct,

it cannot be considered criminal—and the person cannot be punished—without a law specifically

prohibiting it. By extension, vague statutes violate this principle because they make it difficult for

a reasonable person to understand what the law requires of them. To be valid, criminal statutes

must specifically define the conduct that is prohibited or required. To distinguish crimes from

accidents, most criminal statutes also require that the conduct be accompanied by a specific mental

state on the part of the offender. Reflecting our culture, U.S. criminal law distinguishes between

those acts that are purely accidental and those that are intentional. These two aspects—the act and

the mental state of the actor—are required elements for nearly every crime. A third element

The Criminal Act All crimes require a criminal act, or actus reus—a Latin phrase we borrow from common law

that means “guilty act.” In criminal law, an act is generally defined as voluntary or involuntary

bodily movement.8 To be considered a criminal act, however, the person must perform it

voluntarily. It would not serve the policy of specific deterrence to punish a person for acts over

which he or she had no control. Reflexes, convulsions, bodily movements during unconsciousness

or sleep, conduct during hypnosis or resulting from hypnotic suggestion, and subconscious or

habitual bodily movements are all examples of acts that are involuntary and thus not criminal.9 A

single voluntary act is enough to fulfill the voluntary act requirement so even if a voluntary act is

followed by an involuntary one, the person who performed the act might still be criminally liable.

Some things can never be acts. A person’s thoughts, for instance, are not acts and cannot be

criminalized. Similarly, a person’s status in society is not a criminal act. Status is who the person

is, not what the he or she does. As with an involuntary act, if the government punishes an individual

for status, it is essentially targeting that individual for circumstances that are outside his or her

control. For example, in Robinson v. California, the US Supreme Court held that it is

unconstitutional to punish an individual for the status of being a drug addict—even if the drugs to

which the person is addicted are illegal. 10 The Court compared drug addiction to an illness, such

as leprosy or venereal disease. Punishing a person for being sick not only is inhumane but also

does not specifically deter, similar to a punishment for an involuntary act.

On the other hand, if a person can control the actions at issue in spite of his or her status, the

person’s conduct can be constitutionally criminalized and punished. In Powell v. Texas, the US

Supreme Court upheld the defendant’s conviction for “drunk in public,” in spite of the defendant’s

status as an alcoholic. 11 The Court held that it is difficult but not impossible for an alcoholic to

resist the urge to drink, so the behavior the statute criminalized was voluntary. The Court also

8 Model Penal Code § 1.13(2) 9 Model Penal Code § 2.01(2) 10 Robinson v. California, 370 U.S. 660 (1962). 11 Powell v. Texas, 392 U.S. 514 (1968).

ruled that the state has an interest in treating alcoholism and preventing alcohol-related crimes that

could injure the defendant and others.

To determine whether specific behavior constitutes a criminal act, we look to the criminal statute,

or to common law in some jurisdictions, where such acts are described. For the majority of crimes,

an act involves an act or commission, which implies bodily movement. The “commission” of some

crimes, however, actually involves omission or possession.

An omission to act is a person’s failure to act under certain circumstances and it provides an

exception to the requirement that actus reus involve an act; however, an omission can only be

criminal when the law imposes a duty to act. This legal duty to act becomes an element of the

crime, and the prosecution must prove both existence of a duty to act as well as the offender’s

inaction under the circumstances. Omission to act is only criminal in three situations: (1) when

there is a statute that creates a legal duty to act, (2) when there is a contract that creates a legal

duty to act, or (3) when there is a special relationship between the parties that creates a legal duty

to act. Legal duties to act vary from state to state and from state to federal.

Duty to act based on a statute—When a duty to act is statutory, it usually concerns a government

interest that is paramount. Some common examples of statutory duties to act are the duty to file

state or federal tax returns, the duty of health-care personnel to report gunshot wounds, and the

duty to report child abuse. Under common law, it was not criminal to stand by and refuse to help

someone in danger. Some states, however, have enacted Good Samaritan statutes that create a duty

to assist those involved in an accident or emergency situation. Good Samaritan statutes typically

contain provisions that insulate the actor from liability exposure when providing assistance.

Duty to act based on a contract—A duty to act can be based on a contract between two parties.

The most prevalent examples would be a physician’s contractual duty to help a patient or a

lifeguard’s duty to save someone who is drowning. Keep in mind that experts who are not

contractually bound can ignore an individual’s pleas for help without committing a crime, no

matter how morally abhorrent that may seem. For example, an expert swimmer can watch someone

drown if there is no statute, contract, or special relationship that creates a legal duty to act.

Duty to act based on a special relationship—A special relationship may also be the basis of a

legal duty to act. The most common special relationships are parent-child, spouse-spouse, and

employer-employee. Often, the rationale for creating a legal duty to act when people are in a

special relationship is the dependence of one individual on another. A parent has the obligation by

law to provide food, clothing, shelter, and medical care for his or her children, because children

are dependent on their parents and do not have the ability to procure these items themselves. In

addition, if someone puts another person in peril, there may be a duty to rescue that person.

Although this is not exactly a special relationship, the victim may be dependent on the person who

created the dangerous situation because he or she may be the only one present and able to render

aid. On a related note, some jurisdictions also impose a duty to continue to provide aid, once aid

or assistance has started. Similar to the duty to rescue a victim that a person has put in peril, the

duty to continue to provide aid is rooted in the victim’s dependence on the person providing

assistance and the unlikelihood that anyone else will stop to assist because that assistance is already

being provided.

Though possession, like omission, involves no act, it too is considered a criminal act. The most

common objects that are criminal to possess are illegal contraband, drugs, and weapons. There are

two types of possession: actual possession and constructive possession. Actual possession

indicates that an individual has the item on or very near his or her person. Constructive possession

indicates that the item is not on the individual’s person, but is within the individual’s area of

control, such as inside a house or automobile with the individual. More than one person can be in

possession of the same object, although this would clearly be a constructive possession for at least

one of them.

Possession should be “knowing”—meaning that the individual is aware that he or she possesses

the item. In the vast majority of states, a statute that permits a conviction for possession without

this knowledge or awareness lacks criminal intent element and would therefore be unenforceable.

Criminal Intent Criminal intent, also called mens rea—a Latin phrase that means “guilty mind”—is an essential

element of most crimes. Under the common law, all crimes consisted of an actus reus carried out

with mens rea. It is important to remember that intent is not the same thing as motive. Motive is

the offender’s rationale for committing the criminal act. For instance, a person may be motivated

to commit murder in order to collect on a life insurance policy. Motive can trigger intent. It can

also support a defense and inform a judge’s sentence order. Investigators also rely on motive to

help identify potential suspect. Motive alone, however, does not constitute mens rea and does not

act as a substitute for criminal intent.

Jurisdictions vary in their approach to defining criminal intent but many jurisdictions use a

combination of common law and model penal code definitions.

Common-law criminal intent has three levels. Statutes and cases use many different words to

indicate the appropriate level of intent for specific criminal offenses. It would not be helpful or

practical to cover them all, so what follows is a basic description of three common-law intent

definitions that many jurisdictions use.

Malice aforethought is a special common-law intent designated for only one crime: murder. The

definition of malice aforethought is “intent to kill.” Society considers intent to kill the most evil of

all intents, so malice aforethought crimes such as first- and second-degree murder generally

mandate the most severe of punishments, including the death penalty in jurisdictions that allow for

it.

Specific intent is the intent with the highest level of culpability for crimes other than murder.

Unfortunately, criminal statutes rarely describe their intent element as “specific” or “general,” and

it must be inferred from the language of the statute, common law, or case law precedent. Typically,

specific intent means that the offender acts with a more sophisticated level of awareness. Crimes

that require specific intent usually fall into one of three categories: either the offender intends to

cause a certain tangible harm, the offender intends to do something more than simply commit the

criminal act, or the offender acts with knowledge that his or her conduct is illegal.

General intent is less sophisticated than specific intent. Thus general intent crimes are easier to

prove and can also result in a less severe punishment. A basic definition of general intent is the

intent to perform the criminal act. If the offender acts intentionally but without the additional desire

to bring about a certain result, or do anything other than the criminal act itself, the offender has

acted with general intent.

The Model Penal Code divides criminal intent into four states of mind listed in order of culpability:

purposely, knowingly, recklessly, and negligently.

A person who acts purposely intends to engage in conduct of that nature and intends to cause a

certain result. Purposeful criminal intent resembles specific intent to cause harm. For example, if

John shoots Brian with the goal of killing Brian, then John can be said to have acted purposely.

Knowingly indicates that the offender is aware of the nature of the act and its probable

consequences. Knowingly differs from purposely in that the offender is not acting to cause a certain

result but is acting with the awareness that the result is practically certain to occur. If we find out

that John was not trying to kill Brian, that he only shot Brian to scare him, then John can be said

to have acted knowingly.

Recklessly is a lower level of culpability than knowingly, and reckless intent crimes are not as

common as offenses criminalizing purposeful, knowing conduct. The degree of “risk awareness”

is key to distinguishing a reckless intent crime from a knowing intent crime. A person acts

recklessly if he or she consciously disregards a substantial and unjustifiable risk that the bad result

or harm will occur. This is different from a knowing intent crime, where the offender must be

“practically certain” of the bad results. The reckless intent test is two pronged. First, the offender

must consciously disregard a substantial risk of harm. Second, the offender must take an

unjustifiable risk, meaning that no valid reason exists for the risk. If, for instance, John, who only

wants to scare Brian and knows that shooting Brian is practically certain to maim or kill him, John

might instead choose to shoot his gun in the air. But since all reasonable people understand that a

bullet fired into the air must inevitably come back down somewhere, there is always the substantial

risk that the bullet will maim or kill someone. Moreover, this risk is unjustifiable so John’s actions

are reckless.

Negligently is the lowest level culpability and the least common. The difference between reckless

and negligent intent is the offender’s lack of awareness. While offenders who commit negligent

intent crimes are also faced with a substantial and unjustifiable risk, they are unaware of it, even

though a reasonable person would be. If John keeps a loaded weapon in his house, in an area

accessible to his young daughter, who then finds it and accidently shoots herself, John’s actions

could meet the threshold of criminal negligence.

Intent is a notoriously difficult element to prove because it involves the mindset of the offender.

Ordinarily, the only direct evidence of intent is an offender’s confession, which the government

cannot forcibly obtain because of the Fifth Amendment privilege against self-incrimination.

Witnesses who hear the offender express intent are often unable to testify about it because of

evidentiary rules prohibiting hearsay. However, many jurisdictions allow an inference of general

intent based on the criminal act. For example, in the case of a shooting death, a judge may instruct

the jury that they can infer that a defendant intended the consequences of the criminal act—

specifically death—when he or she decided to use a deadly weapon in the commission of the crime.

If the jury accepts the inference, the prosecution does not have the burden of proving intent for a

general intent crime.

Under the common law, every offense had just one criminal intent. Under modern criminal law,

every offense has one criminal intent unless a statute specifies otherwise. Some offenses contain

multiple criminal intents that support the various elements of an offense. In those cases, each

criminal intent must be proved beyond a reasonable doubt for each element. For example, a

robbery statute might define that crime as “taking, with the intent to steal, the personal property of

another, from his or her person, by violence, intimidation or the threat of force.” A successful

conviction of an offender under that statute would require that the prosecution demonstrate both

the offender’s intent to steal as well as the offender’s intent to use violence, intimidation, or the

threat of force for the specific purpose of stealing. A purse-snatcher who resorts to violence after

being caught in the act may not meet the intent requirement for robbery.

Not all crimes require criminal intent. Strict liability offenses have no intent element. Sometimes

the rationale for strict liability crimes is the protection of the public’s health, safety, and welfare.

Thus strict liability offenses are often vehicle code or tax code violations, mandating a less severe

punishment. With a strict liability crime, the prosecution has to prove only the criminal act and

possibly causation and harm or attendant circumstances, depending on the elements of the offense.

Occasionally, an offender’s criminal intent is not directed toward the actual victim. An offender,

for example, might intend to kill one person, but miss their intended target and kill and innocent

bystander instead. Depending on the jurisdiction, this may result in a transfer of the offender’s

intent from the intended victim to the eventual victim, for the purpose of obtaining a just result.

This is called transferred intent and is only relevant in crimes that require a bad result or victim.

In cases where intent is transferred, offenders can receive more than one criminal charge for the

same set of facts, such as a charge for “attempting” to commit a crime against the intended victim.

In the above example, the offender could be charged with the murder of the innocent bystander as

well as attempted murder for shooting at the intended victim.

Concurrence of Act and Intent Another element of most criminal offenses is the requirement that the criminal act and criminal

intent exist at the same moment. This element is called concurrence. Concurrence is rarely an

issue in a criminal prosecution because the criminal intent usually generates the bodily response

(criminal act). However, in some rare instances, the criminal act and intent are separated by enough

time that concurrence is absent. A person, for instance, may intend to kill their boss but never go

through with the crime, then later, unintentionally kill their boss in a traffic crash.

Causation and Harm As stated previously, causation and harm can also be elements of a criminal offense if the offense

requires a bad result. In essence, if injury is required under the statute, or the case is in a jurisdiction

that allows for common-law crimes, the offender must cause the requisite harm. Many incidents

occur when the offender technically initiates circumstances that result in harm, but it would be

unjust to hold the offender criminally responsible. To ensure fairness in such cases, the trier of fact

must perform a two-part causation analysis, consisting of an analysis of both the factual and legal

causation.

First, the offender must be the “factual cause” of the victim’s harm. Basically, the offender is the factual

cause of the victim’s harm if the offender’s act starts the chain of events that leads to the eventual result.

It is the second part of the analysis that ensures fairness in the application of the causation element.

The offender must also be the legal or proximate cause of the harm. Proximate means “near,” so

the offender’s conduct must be closely related to the harm it engenders. The test for legal causation

is objective foreseeability. The trier of fact must be convinced that at the time of the act, a

reasonable person could have foreseen or predicted that the end result would occur.

A person may be the factual but not the legal cause of the harm if something or someone interrupts

the chain of events started by the person. This is called an intervening superseding cause.

Typically, an intervening superseding cause cuts the person off from criminal liability because it

is much closer, or proximate, to the resulting harm. If an intervening superseding cause is a

different individual acting with criminal intent, the intervening individual is criminally responsible

for the harm caused.

Breaking Down a Crime into its Individual Elements

A statute might define burglary as

“breaking and entering into a residence at nighttime with the intent to commit a felony.”

The elements of burglary would be:

1) breaking criminal act [+ general intent to “break”]

2) and entering criminal act [+ general intent to “enter”]

3) into a residence attendant circumstances

4) at nighttime attendant circumstances

5) with the intent to commit a felony specific intent

There are two criminal act elements: the prosecutor must prove that the defendant engaged in both

breaking and entering.

General intent is not specifically listed in the definition (it rarely is) but it is nonetheless required:

the prosecutor must show that the defendant intended to break and intended to enter

There is one specific intent criminal intent requirement: the prosecutor must show that the

defendant committed the act with the specific intent to commit a felony (usually felony theft but it

could be any felony).

There is a requirement that the offender break and enter a residence and that he do so at night.

These are attendant circumstances.

In criminal homicide cases, the causation analysis can be complicated by a victim’s survival for

an extended time period. Because of modern technology, victims often stay alive on machines for

many years after they have been harmed. However, it may be unreasonable to hold an offender

responsible for a death that occurs several years after the offender’s criminal act. A few states have

rules that solve this dilemma.

Some states have either a “one year and a day rule” or similar requirement in which the victim

of a criminal homicide must die within the specified time limits for the offender to be criminally

responsible. If the victim does not die within the time limits, the offender may be charged with

attempted murder, rather than criminal homicide. Death timeline rules are often embodied in a

state’s common law and have lost popularity in recent years. Thus, many states have abolished

arbitrary time limits for the victim’s death in favor of ordinary principles of legal causation. Death

timeline rules are not to be confused with the statute of limitations, which is the time limit the

government has to prosecute a criminal defendant.

Criminal Responsibility

Often more than one offender plays a role in the commission of a crime. Offenders working

together with a common criminal purpose or design are acting with complicity. When the

participation and criminal conduct varies among the offenders, an issue arises as to who is

responsible for which crime and to what degree.

Parties to Crime In early common law, parties to crime were divided into four categories. A principal in the first

degree actually committed the crime. A principal in the second degree was present at the scene of

the crime and assisted in its commission. An accessory before the fact was not present at the scene

of the crime, but helped prepare for its commission. An accessory after the fact helped a party to

the crime after its commission by providing comfort, aid, and assistance in escaping or avoiding

arrest and prosecution or conviction.

However, in modern times, most states and the federal government divide parties to crime into just

two categories: principals and accessories. The person who commits the criminal act is referred to

as the principal. Any person who helped prepare for its commission (like the common law

“accessory before the fact,” is called an accomplice and bears equal criminal responsibility for

the crime—that is, both can be prosecuted for the same offense. An accessory, on the other hand,

is any person who helped the principal avoid detection after the principal committed the crime

(like the common law “accessory after the fact”). Accessory is a separate and distinct offense.

Some states still call the crime of accessory “accessory after the fact” or “hindering prosecution.”

The difference between an accomplice and an accessory is crucial. An accomplice is responsible

for the offense the principal commits. An accessory, on the other hand, is guilty of a separate crime

that is almost always a misdemeanor.

Accomplice Liability An accomplice does not actually have to commit the crime to be responsible for it. The policy

supporting accomplice liability is based on the idea that an individual who willingly participates

in furthering criminal conduct should be accountable for it to the same extent as the person who

commits the crime. The degree of participation is often difficult to quantify, so statutes and cases

attempt to segregate blameworthy accomplices based on their level of involvement and intention.

In the majority of states and federally, an accomplice must voluntarily act in some manner to assist

in the commission of the offense. Examples of actions that qualify include helping plan the crime,

driving a getaway vehicle after the crime’s commission, and luring a victim to the scene of the

crime.

In many states, a person’s words are enough to constitute participation in a crime. On the other

hand, mere presence at the scene of the crime, even the act of fleeing from the scene, is not

sufficient to turn a bystander into an accomplice. However, if there is a legal duty to act, a person

who is present at the scene of a crime without preventing its occurrence could be liable as an

accomplice in many jurisdictions.

In many jurisdictions, in addition to aiding the principle, the accomplice must specifically desire

the principal to commit the crime. In some jurisdictions, however, a person can be held criminally

liable as an accomplice even without this desire as long as the resulting crime was foreseeable.

This is known as the natural and probable consequences doctrine.

Though equally responsible, a convicted accomplice might be sentenced more leniently based on

his or her criminal record or other extenuating circumstances. Occasionally a situation arises where

the principal is not prosecuted or is acquitted because of a procedural technicality, evidentiary

problems, or a plea bargain. In many jurisdictions, however, a person can be convicted as an

accomplice even if the principal is not prosecuted or has been tried and acquitted for the offense.

Accessories In the majority of jurisdictions, an accessory is someone who aids or assists a principal to evade

arrest, prosecution, or conviction after the principal commits a felony. In most, though not all

states, the law does not allow for a person to be an accessory to a misdemeanor. The offender,

however, has to have been aware of the original crime and intend to help the principle. As with

accomplices, in many states, words are enough to meet the definition of an accessory.

Accessories, in general, are not treated as severely as accomplices. Often special categories of

individuals are exempted from liability as an accessory, typically family members by blood or

marriage. The crime of Accessory is typically graded as a misdemeanor.

Vicarious Liability Vicarious liability is a legal doctrine that transfers an offender’s responsibility to another person

or entity that did not commit the act, but has some special legal relationship with the offender.

Vicarious liability is common between employers and employees. Corporate liability is a type of

vicarious liability that allows a corporation to be prosecuted for a crime apart from its owners,

agents, and employees. Under common law, corporations were not criminally prosecutable as

separate entities—most likely because in England, corporations were owned and operated by the

government. In modern times, American corporations are private enterprises, thus a corporation

can be held criminally responsible if an agent or employee commits a crime during the agent or

employee’s scope of employment. The criminal punishment for a corporation is generally payment

of a fine.

Vicarious liability should not be confused with accomplice liability. Accomplice liability is based

on the offender’s participation in a criminal enterprise and complicity with the principal, whereas

vicarious liability transfers an offender’s criminal responsibility for the crime to a person with no

involvement in the act. It is also important to note that vicarious liability does not remove blame

from the person who actually commits the act; he or she is also criminally responsible.

Defenses

Assuming the government has proven all the elements of a crime, defendants may nevertheless

raise defenses that may result in their acquittal. A successful defense has the ability to completely

exonerate the defendant. This is known as a perfect defense. Even if a defense is successful, the

defendant may still be convicted on a less serious charge. This is referred to as an imperfect

defense.

Parties to a Crime

Actions Common Law

Modern

Statutory Law

Criminal

Responsibility

Committed the crime Principal in the first

degree

Principal Can be prosecuted for

the criminal act.

Present at the scene of the crime and

assists in its commission

Principal in the

second degree

Principal

Not present at the scene of the crime,

but helped prepare for its commission

Accessory before the

fact

Accomplice

Helped a party to the crime after its

commission by providing comfort, aid,

and assistance in escaping or avoiding

arrest and prosecution or conviction

Accessory after the

fact

Accessory Can be prosecuted for

being an Accessory (a

separate offense)

Negative Defenses Sometimes the government is unable to prove all the elements of the crime charged. When this

happens, the defendant may raise a negative defense claim. The defendant doesn’t have to prove

anything, instead, he or she just argues that something is missing in the state’s case, that the state

did not prove everything the statute said it had to prove, and therefore the jury should find him or

her not guilty. For example, when charging a defendant with theft, the state must prove that the

defendant intentionally took the property of another. If the jury finds that the defendant did not

intend to take the property, or took property that that was rightfully his or hers, then it should find

the defendant not guilty. Negative defenses at their essence are claims that there are “proof

problems” with the state’s case. The defendant’s claim that the state failed to prove its case does

not depend on whether the defendant has put on any evidence or not.

Affirmative Defenses An affirmative defense requires the defendant to put on evidence that will persuade the jury that

he or she should either be completely exonerated (for a perfect defense) or be convicted only of a

lesser crime (for an imperfect defense). The defendant can meet this requirement by calling

witnesses to testify or by introducing physical evidence. Because of the presumption of innocence,

the burden of proof (the requirement that the party put on evidence and persuade the fact-finder)

cannot switch completely to the defendant. The state must ultimately bear the burden of proving

defendant’s guilt by putting on enough evidence that defendant has committed the crime by

proving each and every material element of the crime, and it must convince the jury of this guilt

beyond a reasonable doubt. However, when the defendant raises an affirmative defense, the burden

of production or persuasion switches, at least in part and temporarily, to the defendant. The

defendant’s burden is limited, however, to prove the elements of the defense he or she asserts.

There are two types of affirmative defenses: justifications and excuses.

Justifications Sometimes doing the right thing results in harm. Society recognizes the utility of doing some acts

in certain circumstances that unfortunately result in harm. In those situations, the defendant can

raise a justification defense. Justification defenses allow criminal acts to go unpunished because

they preserve an important social value or because the resulting harm is outweighed by the benefit

to society. For example, if a surgeon cuts someone with a knife to remove a cancerous growth, the

act is a beneficial one even though it results in pain and a scar. In raising a justification defense,

the defendant admits he did a wrongful act, such as taking someone’s life, but argues that the act

was the right thing to do under the circumstances. At times, the state’s view differs from the

defendant’s view of whether the act was, in fact, the right thing to do. In those cases, the state files

charges to which the defendant raises a justification defense.

Justification defenses include self-defense, defense of others, defense of property, defense of

habitation, consent, and necessity, also called, choice of evils. Justifications are affirmative

defenses. The defendant must produce some evidence in support of these defenses. In most cases,

the defendant must also convince the jury that it was more likely than not (a preponderance of the

evidence) that his or her conduct was justified. For example, the defendant may claim that he or

she acted in self-defense and at trial would need to call witnesses or introduce physical evidence

that supports the claim of self-defense, that it was more likely than not that his or her actions were

ones done in self-defense. State law may vary about how convinced the jury must be (called the

standard of proof) or when the burden switches to the defendant to put on evidence, but all states

generally require the defendant to carry at least some of the burden of proof in raising justification

defenses.

Excuses Excuses are defenses to criminal behavior that focus on some characteristic of the defendant. With

excuses, the defendant is essentially saying, “I did the crime, but I am not responsible because I

was . . . insane (or too young, intoxicated, mistaken, or under duress).” Excuses include insanity,

diminished capacity, automatism, age, involuntary intoxication, duress, mistake of fact, and then

a variety of non-traditional syndrome excuses. Like justifications, excuses are affirmative defenses

in which the defendant bears the burden of putting on some evidence to convince the jury that he

or she should not be held responsible for his or her conduct.

Procedural Defenses Procedural defenses are challenges to the state’s ability to bring the case against the defendant for

some reason. These defenses point to some problem in the process or the state’s lack of authority

to bring the case rather than facts surrounding the crime or the criminal. Procedural defenses

include: double jeopardy (a defense in which the defendant claims that the government is

repeatedly and impermissibly prosecuting him or her for the same crime), speedy trial (a defense

in which the defendant claims the government took too long to get his or her case to trial),

entrapment (a defense in which the defendant claims the government in some way enticed him

or her into committing the crime), the statute of limitations (a defense in which the defendant

claims the government did not charge him or her within the required statutory period), and several

types of immunity (a defense in which the defendant claims he or she is immune from being

prosecuted). Although procedural defenses are considered procedural criminal law, many states

include the availability of these defenses in their substantive criminal codes.