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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.