Karen Mazo
CJ 203-B4
05/17/2012
Criminal Law
The study of criminal law is actually a study of human behavior. It is more than a study of specific crimes; it is also an examination of the rules of human behavior and criminal responsibility.Criminal law is based on moral values, and many of our crimes are also violations of our moral standards.People in all societies have the inherit right to protect their society and those living in that society from acts that threaten either the society or the people. And for this reason we have written or unwritten laws forbidding and punishing acts considered harmful to the group or the individual.
The Colonial period in America saw changes to the English Common Law which reflected the cultural and social differences that were developing in the new nation. In many ways the law in America became more complex, reflecting the influence of “enlightenment” philosophy and, at the same time, reacting to the concentration of power in the hands of the leaders.Conflicting ideologies and shifting demographics resulted in a natural state of checks and balances in the criminal justice system. The power of the jury to decide both “the facts and the law” acted as an informal reform of the system.
As criminal law developed in the 20th century, American Jurisprudence moved further and further away from common law principle that a crime consisted of two elements, a guilty deed Actus Reus plus a guilty mind Mens Rea. The requirement of an act is one that is evidence of a choice being made and choice, of course, brings into question the state of mind. Prosecutors have to prove each and every element of the crime to yield a conviction. Furthermore, the prosecutor must persuade the jury or judge “beyond a reasonable doubt” of every fact necessary to constitute the crime charged.In an effort to make the criminal justice system more uniform and predictable, judges and legal theorists sought to marginalize the element of “intent”. They sought to blur the lines between criminal law and civil law by minimizing, or eliminating altogether, the requirement of mensrea.To understand our criminal law, it is necessary to focus on the one characteristic that differentiates it from civil law. That characteristic is punishment.
The American Constitution was written in 1787. The United States Constitution is the supreme law of the United States. It’s preamble states that the purposes of the United States Constitution are to “establish Justice, insure domestic tranquility,… promote the general Welfare and secure the Blessing of Liberty to ourselves and our property.”(textbook) On December 15, 1791, ten amendments were added to the Constitution. The first ten amendments of the United States Constitution compose our federal Bill of Rights. These amendments guarantee certain freedoms and rights and they also protect individual rights against government intrusion.
There are, however, constitutional limits on the power of government officials in order to prevent them from abusing the rights of individuals, including those accused of criminal behavior. The constitutional rights of the accused are the following.The Fourth amendment protects individuals against unreasonable and unwarranted searches and seizures of their property. In order for there to be a search of your private propertythere must be a probable causefor issuing a warrant to authorize a search or arrest.The Fifth Amendment basically means the right to a fair trial. It also states that a person has the right to not speak. In other words, no person will be forced to confess wrongdoing or say anything that might get them into trouble.The Sixth Amendment to the U.S. Constitution affords criminal defendants seven discrete personal liberties which are the right to a Speedy Trial; the right to a public trial; the right to an impartial jury; the right to be informed of pending charges; the right to confront and to cross-examine adverse witnesses; the right to compel favorable witnesses to testify at trial through the subpoena power of the judiciary; and the right to legal counsel. The Eighth amendment protects individuals from overly harsh punishments and excessive fines and bail which is the amount of money required to secure a person’s release from custody while awaiting trial. The Fourteenth amendment prohibits states from denying the equal protection of their laws. This constitutional right implies that all persons will be treated with substantially equality.
American ideas about the rights of the accused can be traced to the great English documents of liberty, such as the Magna Carta in 1215, and the English Bill of Rights 1689. These documents embodied the principles of limited government and the rule of law, which all were bound to obey. These ideas were developed in England and brought to the North American colonies in the 1600s. American colonists expanded their English legal heritage to provide new and higher levels of protection for the rights of the accused.
Homicide encompasses much more than premeditated murder. It is a generic term meaning the killing of one human being by another. While the killing of a human being has been recognized for centuries as prohibited conduct, the exact nature of the crime was not clearly defined during early historical times. Sir William Blackstone stated that there were three kinds of homicide: justifiable, excusable and criminal.All three of these were the killing of another human being and the distinction between them involved the circumstances surrounding the killing. Sir Williams added that the first one involved no guilt, the second involved little guilt and the third was by far the worse crime that humans were capable of committing against the law of nature.
Justifiable homicide is killing under circumstances of necessity or duty without any evil intent; for example state executions. Excusable homicide occurs when one kills another by mistake or in self-defense. Criminal homicide is when a person unlawfully and knowingly causes death to another person and is considered one of the most serious crimes in our society.Homicide is a common law crime crated by English judges rather than the English legislature. The early common law decisions have in some instances been translated into statues in many of our states. These statues have broken down the crime of homicide into graded levels: murder, voluntary and involuntary manslaughter, and negligent manslaughter. The most serious type of homicide is a murder. Penalties are more severe when the killing was intentional rather than a result recklessness or negligence.
Historically, the term public morals originated in medieval days when the monarchs and the churches were jostling for jurisdiction over nonviolent sexual conduct; the churches, which considered themselves the guardians of public morals, labeled certain activities offensive and claimed jurisdiction over these violations.The laws regarding public morals are generally justified as attempts to protect traditional values. Presently, crimes against public morals include prostitution and rape.
Prostitution is said to be the world’s “oldest profession.”In the United States, the act of intercourse is not a crime by itself. It is the act of solicitation and payment for sexual services that is regulated.The crime includes masturbation, sexual intercourse, sodomy, and any other physical sexual activity between members of the same or different sexes.The crime of prostitution has three elements: soliciting or engaging in, any sexual activity including deviate sex, and for the purpose of commercial gain.Members of either sex may now be convicted of prostitution, as distinguished in the past when only women could be convicted. However, males who offer to pay a woman to engage in sex acts may also be charged with the crime. Most states punish prostitution as a misdemeanor, and prostitutes rarely spend any length of time in jail if convicted of plying their trade. Prostitution is an age-old activity and is still considered a crime. Even with society’s modern morals regarding sexual activity, prostitution still flourishes.
On the other hand, of the best known and publicized sex offenses is rape. Rape is the unlawful act of sexual intercourse with another person against that person’s will by force, fear, or trick. For purposes of rape, sexual intercourse requires penetration of the penis into the vagina. Penetration does not have to result in a completed act of sexual intercourse. There is no requirement for ejaculation or emission by the male for the crime to complete. The classic defense in most rape cases is that the victim consented to sexual intercourse. However, many rapes involve the use of threats or slight force that will result in overcoming the victim’s initial resistance. In these cases, , the defendant will argue that the victim consented, and therefore it was not rape but consensual sexual activity between adults.
Domestic violencealso known as domestic abuse is defined as a pattern of abusive behaviors by one partner against another in an intimate relationship such as marriage, dating, family, or cohabitation. The definition adds that domestic violence can happen to anyone regardless of race, age, sexual orientation, religion, or gender.In addition, a person can commit the crime of domestic violence in many forms, including physical abuse, sexual abuse, emotional, economic, and psychological abuse. Domestic violence results in physical injury, psychological trauma, and sometimes death.A recent study said that men who as children witnessed their parent’s domestic violence are twice more likely to abuse their own wives than sons of nonviolent parents.According to Richard J. Gelles in his recent published book Domestic Violence Factoids he stated that domestic violence is the leading cause of injury to women between the ages of fifteen and forty-four in the United States. More than car accidents, mugging, and rapes combined.
Kidnapping, is the willful and unlawful seizing, confining, and carrying away of another person by either force, threat of force, fraud or deception. Kidnapping requires intent to act without the authority of the law. A person is guilty of kidnapping if he/she unlawfully removes another from its residence or business, or if he/she unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes: to hold for ransom or reward, or as a shield or hostage; or to inflict bodily injury on or to terrorize the victim or another; or to interfere with the performance of any governmental or political function. Kidnapping is one of the few crimes that are investigated by the federal government. Federal authority is based on the assumption that the victim will be taken across state boundaries.
Bribery is the best known crime involving official corruption. It is bribery to give a public official money or property of any value in exchange for an agreement by the official to do or refrain from doing something that is against or in contradiction to an official duty. The key element in bribery is the agreement, not the act or the failure to act. The crime is completed when the agreement is made, even if it never takes place. At common law, the bribe must have directed toward a public official. Statutes have expanded the scope of bribery to include agreements to fix sports events, shave points on ball games, and to influence members of a jury or witnesses.
Conspiracy is a crime that occurs in secret. The critical part of this crime is the agreement between two or more persons to commit a crime or to achieve a lawful objective in an unlawful manner. There are numerous variations of the crime of conspiracy. Some states require an overt act; other states have degrees of conspiracies, while others require an unlawful objective or an attempt to commit a substantive crime. Each member of the conspiracy is liable for all crimes committed by other members of the conspiracy. Withdrawal from the conspiracy after an overt act has been committed is no defense. Conspiracy is a crime that requires more acts than solicitation does, but it does not require the defendant to come as close to the commission of the substantive crime as attempt does. The offense imposes liability on the defendant for crime committed by co-conspirators. Conspiracy combines spoken words with an overt act but does not require the commission of the planned unlawful object.
In the United States, larceny is a common law crime involving theft.Larceny is a crime directed against the possession, not ownership, of property. It involves those who take personal property and carry it away from the person who has the right of possession. The actusreusof the crime is the taking and carrying away. The offense is completed when personal property is taken and carried away. At early common law, there were no degrees of larceny. All larcenies were felonies. By statutes in most states larceny has been divided into grand larceny which is a felony and a petty larceny which is a misdemeanor.
Assaultis a crime which involves causing a victim to apprehend violence.In some jurisdictions assault is defined as the threat of bodily harm that reasonably causes fear of harm in the victim while battery is the actual physical impact on another person. If the victim has not actually been touched, but only threatened or someone attempted to touch them, then the crime is assault. If the victim has been touched in a painful, harmful, violent, or offensive way by the person committing the crime, this might be battery.
On the other hand, Battery is a criminal offence involving unlawful physical contact, distinct from assault which is the apprehension, not fear, of such contact. In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact. It is a specific common law misdemeanor, although the term is used more generally to refer to any unlawful offensive physical contact with another person, and may be a misdemeanor or a felony, depending on the circumstances. Battery was defined at common law as “any unlawful touching of the person of another by the aggressor himself, or by a substance put in motion by him.” In most cases, battery is now governed by statute, and its severity is determined by the law of the specific jurisdiction.
In conclusion, the idea of law includes fundamental rules of behavior, as well as institutions and devices for changing, clarifying, refining, and applying the rules. Law is a natural outcome of people living and working together. If people are to live among others, there must be a way to resolve the inevitable disputes. Law can be seen as the activity of subjecting human conduct to the governance of rules. Law is a systemic discovery process involving the historical experiences of successive generations. Law reflects and embodies the experiences of all men who have ever lived. Our Government has come a long way to be what it is today. However, without the sweat, blood, and tears that have been shed, our nation would not be as great as it is at present. America, started with a bold but bare Roman Code and has concluded to a revamped and refurbished Constitution.
Roberson, C., &Wallece, H. (2007).Principles of Criminal Law (4thed). Boston: Allyn& Bacon Publishers.
Anderson, T, & Gardener, T. (2008). Criminal law (10thed). STATE:Cengage Learning Publishers.
Law & Liberty <http://www.lawandliberty.org/justice.htm>
Ibid.
Cornell University <http://www.law.cornell.edu/wex/criminal_law>
Arnold H. Loewy.(1987). Criminal Law. St. Paul, MN: west.
Roberson, C., &Wallece, H. (2007).Principles of Criminal Law (4thed). Boston: Allyn& Bacon Publishers.
Anderson, T, & Gardener, T. (2008).Criminal law (10thed).STATE:Cengage Learning Publishers.
LaFave, W, & Scott, A. (1986).Criminal law (2nded). St. Paul, MN: west.
Anderson, T, & Gardener, T. (2008).Criminal law (10thed). STATE:Cengage Learning Publishers.
Roberson, C., &Wallece, H. (2007).Principles of Criminal Law (4thed). Boston: Allyn& Bacon Publishers.
Ibid.
Ibid.
Anderson, T, & Gardener, T. (2008).Criminal law (10thed).STATE:Cengage Learning Publishers.
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