Criminal Law and Penal Law - Essay Example

CRIMINAL LAW Criminal law (also known as penal law) is the body of law that punishes criminals for committing offences against the There are four theories of criminal justice: punishment, deterrence, incapacitation, and rehabilitation. It is believed that imposing sanctions for the crime, society can acheive justice and a peacable social order. This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern (Johanson 12). The process begins, obviously, with an alleged crime. A complainant makes an accusation, which is investigated by the police, acting as agents of the government. The police file a document, in most jurisdictions known as a complaint, with a court in the appropriate jurisdiction. The interests of the state are represented by a prosecuting attorney, while the interests of the defendant are represented by his or her attorney. While the specific process varies according to the local law, in virtually every jurisdiction the process culminates with a trial, followed by appeals to higher courts (Frey, H. & Wellman, 75). Criminal statutes spell out the exact circumstances which constitute a crime. These circumstances are known as the elements of the offense. Unless all the elements are proven by the proscuting authority, the defendant is not guilty of the offense. There are three kinds of elements: the act itself, the actus reus, guilty act; the requisite mental state, the mens rea, guilty mind; and the attendant circumstances. Criminal law in most jurisdictions both in the common and civil law traditions is divided into two fields: Criminal procedure regulates the process for addressing violations of criminal law Substantive criminal law details the definition of, and punishments for, various crimes. Criminal law distinguishes crimes from civil wrongs such as tort or breach of contract. Criminal law has been seen as a system of regulating the behavior of individuals and groups in relation to societal norms at large whereas civil law is aimed primarily at the relationship between private individuals and their rights and obligations under the law. Although many ancient legal systems did not clearly define a distinction between criminal and civil law, in England there was little difference until the codification of criminal law occurred in the late nineteenth century. In most U.S. law schools, the basic course in criminal law is based upon the English common criminal law of 1750 (with some minor American modifications like the clarification of mens rea in the Model Penal Code). Criminal procedure refers to the legal process for adjudicating claims that someone has violated the criminal law. Currently, in all countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution - that is, it is up to the prosecution to prove that the defendant is guilty, as opposed to having the defendant prove that he is innocent; any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, may in practice operate somewhat differently in different countries (Ethics 563-85). Similarly, all such jurisdictions allow the defendant the right of a counsel and provide defendants that cannot afford to have their own lawyer some lawyer at the public expense (which is in some countries called a "court-appointed lawyer"). Again, the efficiency of this system depends greatly on the jurisdictions. In some jurisdictions, the lawyers provided to indigent defendants are often overworked or incompetent, or may not take much interest in the cases they have to defend. In a criminal case, the government generally brings charges in one of two ways: either by accusing a suspect directly in a "bill of information" or other similar document, or by bringing evidence before a grand jury to allow that body to determine whether the case should proceed. If there is, then the defendant is indicted. In the federal system, a case must be brought before a grand jury for indictment if it is to proceed; some states, however, do not require indictment. Once charges have been brought, the case is then brought before a petit jury, or is tried by a judge if the defense requests it. The jury is selected from a pool by the prosecution and defense. The burden of proof is on the prosecution in a criminal trial, which must prove beyond a reasonable doubt that the defendant is guilty of the crime charged. The prosecution presents its case first, and may call witnesses and present other evidence against the defendant. After the prosecution rests, the defense may move to dismiss the case if there is insufficient evidence, or present its case and call witnesses. All witnesses may be cross-examined by the opposing side. The defendant is not required to testify under the Fifth Amendment to the United States Constitution, but must answer the prosecution's questions if he or she takes the stand. After both sides have presented their cases and made closing arguments, the judge gives the jury legal instructions and they adjourn to deliberate in private. The jury must unanimously agree on a verdict of guilty or not guilty (Levy 57). If a defendant is found guilty, sentencing follows, often at a separate hearing after the prosecution, defense, and court have developed information based on which the judge will craft a sentence. In capital cases, a separate "penalty phase" occurs, in which the jury determines whether to recommend that the death penalty should be imposed. As with the guilt phase, the burden is on the prosecution to prove its case, and the defendant is entitled to take the stand in his or her own defense, and may call witnesses and present evidence. After sentencing, the defendant may appeal the ruling to a higher court. American appellate courts do not retry the case; they only examine the record of the proceedings in the lower court to determine if errors were made that require a new trial, resentencing, or a complete discharge of the defendant, as is mandated by the circumstances. The prosecution may not appeal after an acquittal, although it may appeal under limited circumstances before verdict is rendered, and may also appeal from the sentence itself (Law & Philosophy 493-524). ELEMENTS OF ALL CRIMES Ignorantia juris non excusat or Ignorantia legis neminem excusat (Latin for "ignorance of the law is no excuse") is a legal doctrine holding that a person who is unaware of a law may not escape punishment for violating the law merely because they were unaware of the law; that is, persons have presumed knowledge of the law. The rationale behind the doctrine is that if ignorance was an excuse, persons charged with criminal offenses would merely claim they were unaware of the law in question to escape punishment. As such, from the standpoint of the law, all persons are aware of all laws, even though from a practical standpoint this would be impossible, even for someone with substantial legal training. However, it is well settled that persons engaged in undertakings outside what is common for a normal person, such as running a nuclear power plant, will make themselves aware of the laws necessary to engage in that undertaking. The doctrine assumes that the law in question has been properly promulgated, for example, by being printed in a government gazette. However, although ignorance may not go to guilt, it can be a consideration in sentence, particularly where the law is unclear or the defendant sought advice from law enforcement or regulatory officials. For example, in one Canadian case, a person was charged with being in possession of gambling devices after they had been advised by customs officials that such devices were legal to import into Canada. Although the defendant was found guilty of the crime, in the circumstances they were granted an absolute discharge. In addition, there were, particularly in the days before satellite communication and cellular phones, persons who could genuinely be ignorant of the law due to distance or isolation. For example, in a case in British Columbia, a pair of hunters were acquitted of game offenses where the law was changed during the period of time they were in the wilderness hunting (UCLA Law Review 1719-26). The actus reus - sometimes called the external elements of a crime - is the criminal act which, in combination with the mens rea, produces criminal liability in common law based criminal law jurisdictions such as the United States, Australia, Canada and the United Kingdom. According to criminal jurisprudence, there must be a concurrence of both actus reus and mens rea for a crime to have been committed. The phrase derives from a quotation from Edward Coke actus non facit reum nisi mens sit rea,1 which roughly translated means "an act does not make someone a criminal unless (their) mind is guilty." (Utah Law Review 319-42) The external elements of a crime generally come in four broad categories. There is the conduct, circumstances, consequence, and cause. The wording of charge is made up of any number of these types of elements. For example, in the crime of Burglary ("breaking and entering the dwelling of another during the night with the intention to commit a felony therein") has the prohibited conduct of "breaking" and "entering", and the circumstance "of another" and "during the night". The prosecution must prove all theses elements beyond a reasonable doubt in order to establish the actus reus. When the charge contains a "consequence" element there must be an additional "causation" element to connect the conduct to the consequence (UCLA Law Review 1063-148). At common law, the failure to act does not attract criminal liability. Typically, an act described in a charge is assumed to be a positive act. This presumption is rebutted where the criminal provision explicitly states that that the act consists of any "act or omission". Equally, there can often be provisions or legislation that imposes a duty upon the public. Mens rea is a criminal law concept which focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness, or willful blindness. In jurisdictions with due process, some level of mens rea is almost always a required element of the crime with which the defendant is charged, and must be proven by the prosecution, the exception being strict liability crimes or torts. Most civil law claims also incorporate some level of mens rea as a required element. An illustration of mens rea would be the difference between hurting someone voluntarily and accidentally; in the first case, the mens rea, the intention to hurt, is present but not in the second one. Another example: if the intention to kill or to act in a way that can predictably lead to the death is not proved, one can not be found guilty of the crime of murder because the definition of this crime includes this condition (to be convicted, you need both the mens rea and the Actus reus, also known as the "psychological" and "material" elements); without the mens rea for murder, the accusation will usually turn into manslaughter, a different but similar crime that does not require the same mens rea. Prior to the 1960s, mens rea was a very slippery, vague and confused concept. Since then, the formulation of mens rea set forth in the Model Penal Code has been highly influential throughout North America in clarifying the discussion of the different levels of mens rea (Florida Law Review 421-39). The four levels of mens rea set forth in the MPC are: (1) Purposely - Express purpose to commit a specific crime against a particular person; for example, to shoot an arrow at someone and hit him. (2) Knowingly - Knowledge that one's actions would certainly result in a crime against someone, but did not specifically intend to commit that crime against the particular victim which one is accused of injuring; for example, to shoot an arrow at A but hit B. This also covers the concept of willful blindness. Willful blindness is where a person knows that something is very probable, but avoids investigating to gain that knowledge. Often used against drug mules, who knew that it was highly likely that there was contraband in the vehicle, but refused to look. (3) Recklessly - Knowledge that one's actions had an unjustifiable risk of leading to a certain result, but did not care about that risk ("reckless disregard"), and acted anyway; for example, to shoot an arrow in the air in a crowded place. It should be noted that under the MPC, barring contradictory statutory language, recklessness is the minimum mens rea that will lead to criminal liability. This covers the "depraved heart" state of mens rea, which is an extreme disregard for human life. Examples include playing Russian Roulette, street racing, and other highly dangerous activities. (4) Negligently - Did not intend to cause the result that happened, but failed to exercise a reasonable duty of care to prevent that result (which includes failing to become aware of the risk of that result.) The above is the tort standard of negligence. In general this is not enough for criminal liability. Criminal negligence is a "gross deviation" from the standards of normal conduct and includes a substantial and unjustifiable risk. For example, one might be negligent for failing to put up a fence to keep children away from your pool. This will not lead to criminal charges. Criminal negligence might include keeping a vicious dog tied to a tree with twine. Some commentators like to add on a fifth uncodified level, which exists in practice if not in the idealized Model Penal Code, which is, after all, merely a guide for states to follow in the development of their own criminal code. It should be kept in mind that the MPC is, in and of itself, not the law of the land anywhere, though many states have followed it to some degree or another. (5) Strict liability - Strict liability is usually for "public welfare" offenses, like parking tickets, environmental regulations, and other such things. It is where the mental state of the defendant bears no relevance to the prosecution of the crime; the act itself is enough for conviction. Strict liabilty is rather rare in criminal law, but it does happen. For instance, statutory rape is a strict liability crime. Even if the defendant believed the girl to be over the age of consent, he is still guilty of statutory rape. As with all statements of the law, there are some jurisdictions that modify or ignore this rule. They are a minority. In most jurisdictions you are strictly liable for the age of the girl, even if she lied about it. The same is true for other forms of child molestation (Journal of Criminal Law & Criminology 546-601). Criminal jurisdiction is a term used in the law of criminal procedure to describe the power of a court to hear a case brought by the state accusing a criminal defendant of a violation of the law of the geographic area in which the court is located. In the United States, federal courts have jurisdiction to hear charges alleging federal crimes, and state courts have jurisdiction to hear charges alleging violations of state law. In order for a federal court to properly have jurisdiction, the crime being prosecuted must either have been created pursuant to an express or implied constitutional grant of authority, or must have been committed in an area owned by or under the exclusive control of the federal government. Examples of crimes that are based on constitutional grants of authority include tax evasion (implied from the Article I grant of power in the Taxing and Spending Clause); possessing illegal substances (under the Commerce Clause), and conspiring to violate civil rights (under the Fourteenth Amendment). Examples of crimes that are based on areas owned by or under the exclusive control of the federal government include crimes committed in the District of Columbia, in U.S. Territories, in U.S. National Parks, in federal courthouses and federal prisons, and aboard airplanes (regulated by the Federal Aviation Administration) and ocean-going vessels. Federal courts can also assert jurisdiction to hear cases brought against U.S. citizens based on their illegal activities in other countries. The courts of the U.S. states only have jurisdiction over cases brought under the law of their own state. They have no authority to provide a forum for the prosecution of violations of U.S. federal laws, or the laws of another state. References: 1. Alschuler's "Path," 49 Florida Law Review , 1997. 2. Frey, H. and Wellman, E. Malden State Punishment and the Death Penalty, in A Companion to Applied Ethics. Oxford: Blackwell Publishers, 2003. 3. How to Criticize the Death Penalty, 77 Journal of Criminal Law & Criminology, 1986. 4. Is There a Rationale for the Privilege Against Self-Incrimination UCLA Law Review, 1986. 5. Johanson, T. The history of criminal law. New York, 1995. 6. Justice in the Age of Sentencing Guidelines, 110 Ethics, 2000. 7. Levy, L.W. et al. Encyclopedia of the American Constitution: Supplement I. New York: Macmillan, 1992. 8. Mismeasuring "Unfair Advantage": A Response to Michael Davis, 13 Law & Philosophy 493-524, 1994. 9. Morris on Paternalism and Punishment, 18 Law & Philosophy, 2000. 10. Restorative Justice and the Justification of Punishment. Utah Law Review, 2003. 11. The Future of Punishment. UCLA Law Review, 1999. Read More