Criminal Law
Levine
Fall 2013
[Chapter 1: Introduction: Setting the Stage]
Criminal Law is a process, a way of doing something.
The form of punishment is different in criminal law than it is in other areas of law. How is it different?
The primary punishment in criminal law is imprisonment. Why is it different and in what ways? When it comes to imprisonment it differs in kind from other forms of remedies. A persons personal freedom, or taking away potentially in some jurisdictions someone’s life are “remedies”. In criminal law there is the potential of taking away someone’s freedom and liberty.
There is no plaintiff (π) v. defendant (∆)
When it comes to criminal law rather that People v. ∆… State v. ∆…
US v. ∆. The people as a whole must be represented. Criminal law crimes affect society
Someone who commits a tort we want to make the compensate those they wronged.
We consider crimes to represent a harm against society, which justifies that the People bring the case, that society as a whole bring the case, although there are going to be a group of individuals typically harmed, it is society that brings against the defendant.
IE regarding TORTS: someone is playing catch and throws a ball into another yard and breaks a window. Neighbor turns out to be friendly and says “eh its okay, don’t worry about it”. Does a prosecutor step in and say “These kids are ruining the neighborhood, we’re not going to drop the case”? No, not likely.
What are the characteristics of this method?
– The method operates by means of a series of directions or commands, formulated in general terms, telling people what they must or must not do. “Must-not’s = PROHIBITIONS”
IE: do not murder, rape, or rob.
There are MUST’s, affirmative requirements.
IE: Support your wife and children, and file your income tax return
These commands are taken as valid and binding upon all those who fall within their terms. The commands are subject to one or more sanctions for disobedience which the community is prepared to enforce.
The civil law is framed and interpreted and enforced with a constant eye to societies interests.
What distinguishes criminal from a civil sanctions?
The judgment of community condemnation for which accompanies and justifies its imposition.
It is the expression of the community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment
Crime – is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
Criminal law involve more than just a threat, it involve the threat of unpleasant physical consequences commonly called punishment.
So what is crime then, and how is it defined?
-Two scholars have defined crime as “any social harm defined and made punishable by law”
Notes and Questions:
1. Is this definition of crime helpful?
– Yes, this definition has proven to be useful in my understanding of the concept of crime. It creates a laymen’s term of what the act of crime is and what the action of crime can produce (which is punishment to fit the criminal act as defined by our laws). Had the definition been elaborated more thoroughly, it would create confusion and the concepts of crime would become lost in thought.
2. What is it that distinguishes a crime and the criminal process, on the one hand, from other legal directives and the civil process, on the other hand?
– It is the judgment of community condemnation which accompanies and justifies its imposition. The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment than a state prison; death on the field of battle has the same physical characteristics as death by sentence of law. It is the expression of the community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment. The civil law is framed and interpreted and enforced with a constant eye to these social interests. The public officers may bring many kinds of “civil” enforcement actions – for an injunction, for the recovery of a “civil” penalty, or even for the detention of the defendant by public authority.
The Legislature’s Role in Criminal Law
Today, in every state and in the federal system, legislators, rather than judges, exercise primary responsibility for defining criminal conduct and for devising the rules of criminal responsibility.
The legislatures role deals with crimes not by condemnation and punishment but with the threat of condemnation and punishment to be imposed always by other agencies.
Primary parts of the directions have to always be interpreted and applied by private persons –potential offenders- to whom they are initially addressed
– In the event of breach or claims of breach, both primary and remedial parts must be interpreted and applied by various officials [I.E.: police, prosecuting attorneys, trial judges, jurors, etc.) responsible for the
oherence, the ALI [American Law Institute] developed the MPC in 1952
d. 1962- ALI adopted and published the Model Penal Code+ Commentaries
Criminal Law in a Procedural Context: Pre-Trial
a. Trials are the exception rather than the rule in the justice system
b. Criminal process beings with the alleged crime reported to the police
i. However, just because a crime is reported, it doesn’t ensure that an arrest will be made
c. Even if the police investigate a crime report thoroughly, insufficient evidence may exist to make an arrest…
i. The U.S. Constitution prohibits police from making an arrest without “Probable Cause”
d. If a suspect is arrested, the prosecutor must overcome various hurdles before a trial may be held:
i. In many states are, for example, the arrestee is entitled to a preliminary hearing, at which the proceeding judge must determine whether the arrest was justified
ii. If the judge determines that there is probable cause, the prosecutor must file (in some states)”Information” in the trial court to proceed to trial.
1. Information= document setting out the formal charges against the accused and basic facts relating to them
a. In some states, the accused cannot be brought to trial unless indicted by a grand jury
2. Grand Jury= consists of members of the community who consider evidence presented to them by the prosecutor
a. The grand jury issues an Indictment, similar to “information”
iii. But, even with an Indictment or an Information, a trial may not be held:
1. The accused is entitles to make various pre-trial motions, which, if successful, may require dismissal of charges.
2. The defendant may plead guilty
a. If so, this is almost always the result of bargaining between the prosecutor and the defendant’s lawyer (I.E. an incentive to reduce the charges, etc.)
iv. Many crimes go unreported or without arrest
1. However, with arrest, many are disposed prior to trial.
