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What purposes or functions does the law
serve?
◦ Enforce social control
◦ Enact justice
◦ Express public opinion and morality
◦ Deter criminal behavior
◦ Punish wrongdoing
◦ Maintain social order
◦ Restore social relations
◦ Help establish a just society
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Section 9.94A.010 of the Washington State
Criminal Code: The purpose of criminal
justice is to:
Ensure that punishment is proportionate to the
seriousness of the offense
Promote respect for law by providing punishment
that is just
Have similar punishments for similar offenses
Protect the public
Offer offenders an opportunity to improve
themselves (rehabilitation)
Make frugal use of the state’s resources
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Law enables and also restricts government
authority and power
Law changes over time, it has a history
Law is a public decision: by legislatures,
courts, administrative agencies, public
demands (moral entrepreneurs)
Law is not self-executing: it is a human
process - legal words have to be interpreted
and applied
Substantive criminal law:
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law that defines crime and punishment (penal
codes)
spells out the powers and authority of CJ
officials
establishes penalties for crime
the government deals with crimes, even those
against persons
(victims cannot take the
lake into their own hands - have to take their
case to the government which then deals with
the offenders)
Procedural law
 The rules designed to implement
substantive law (code of criminal
procedures)
 Is based on Bill of Rights
 Defines justice
 Requires due process in criminal justice
decision-making
 Limits power of government
 Protects individual rights
Civil law:
 Law governing phases of human enterprise,
including commerce, family life, property
transfer, and regulation of interpersonal
conflict;
 Deals with conflicts between individuals or
groups
 State/government merely provides the
arena and legal rules for arguing and
resolving inter-personal conflicts
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Babylonian Code of Hammurabi (2000 B.C.)
Mosaic Code of the Israelites (1200 B.C.)
Roman Twelve Tables (451 B.C.)
Justinian’s Corpus Juris Civilis
German Wergild
Canon (Church) Law
State centered law: common law in England;
civil law in Europe
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The USA was a British colony: followed British
legal traditions
Common Law: Incorporated customs,
traditions, practices, and common behavior
into a standardized law.
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Legal practices and sayings under common
law:
◦ Stare Decisis: To stand by decided cases.
Decisions in earlier cases become the standard by
which subsequent similar cases should be
judged.
◦ Sine lege, sine poena: no punishment without a
law; conduct not prohibited by law is allowed
◦ Mala in se: crimes that are inherently evil (i.e.
murder)
◦ Mala prohibita: prohibited wrongs (failure to pay
taxes)
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Why stare decisis, or precedent?
In common law, courts have great power
They are the ultimate interpreters of the law,
including its constitutional standing
Stare decisis/precedent developed to ensure
consistency and continuity in how common
law was interpreted by the courts
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Constitutional laws and provisions: Bill of
Rights
Common law practices (e.g., contempt of
court)
Statutes written by legislatures (the most
common source of law)
Case decisions, most importantly those
by the Supreme Court
Administrative rules and regulations
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Ex Post Facto Laws
◦ Punish conduct committed before passage of the
law criminalizing that conduct
◦ Makes a crime more serious and authorizes greater
punishment than the law existing at the time of the
act
◦ Makes it easier to convict the offender than the law
existing at the time of the act
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Bill of Attainder
◦ A legislative act punishing someone for treason
without a trial
◦ Punishing someone for conduct committed by
someone else (e.g., a member of the family –
“corruption of blood”)
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Felony: Serious crime punishable by
imprisonment in a penitentiary or death.
Misdemeanor: A less serious crime
punishable by fine or imprisonment for less
than a year.
Infraction: Violations of a city or county
ordinance normally punished by a fine. Some
states consider infractions to be civil rather
than criminal.
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Actus reus
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An illegal act
A failure to act when the law requires you to do so
Act must be voluntary
Negligent acts can result in criminal liability
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Mens rea
◦ Guilty mind or intent. The mental element of a
crime
◦ Intent is implied if the results of an act are certain
to occur.
◦ Crimes may require different levels of intent
ranging from purpose (homicide) to negligence
(manslaughter – a reasonable person should have
know that someone could be killed by one’s
conduct)
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Connection between act (actus reus) and
harm done
The illegal act must be the cause of the harm
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Exceptions to mens rea: strict liability
offenses:
◦ Illegal acts that do not require a showing of intent
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Examples:
◦ Speeding
◦ Serving a minor alcohol because he/she looked
older
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A person can commit an act that would
ordinarily be a crime but they are not held
criminally liable because there is a recognized
defense or justification for their act under the
law.
Criminal defenses are a core aspect of
common law thinking.
Most criminal defenses are based on the
mens rea element in definitions of crime.
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Ignorance or mistake
◦ As a general rule ignorance of the law is not a
defense.
◦ Mistake of fact may be a defense if it shows a lack
of intent.
◦ Examples
 Taking someone else’s coat when you leave a
restaurant because you believed it was yours
 Taking a suitcase from the airline belt, which looks just
like yours, but which does not belong to you
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Insanity
◦ Relies on a legal rather than medical definition
◦ Defendants who are legally insane are found not
guilty by reason of insanity.
◦ Insane persons lack the capacity to form legal
intent, or mens rea.
◦ Cannot distinguish between right and wrong, or
cannot control their conduct
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Intoxication
◦ Voluntary intoxication is not normally a defense.
◦ Involuntary intoxication may be a defense
 E.g., someone gave you a drink you did not know or
could not reasonably know contained alcohol.
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Age
◦ A child is not criminally responsible for actions
committed at an age that precludes a full
realization of gravity of certain types of behavior.
◦ Under the common law a child under the age of
seven was presumed to be incapable of forming
intent.
◦ Today state statutes establish the age of
responsibility.
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Consent
◦ A person may not be convicted of a crime if the
victim consented to the act.
 A forcible rape does not occur if person consents to
sexual relations – it is love
 But a statutory rape does occur, even if the parties
consent, because the law assumes not all persons
(juveniles, mentally challenged, intoxicated persons)
are competent to give consent.
◦ Competent to give consent means voluntary and
informed consent (understanding the
consequences of consenting)
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Self-defense
◦ Must have acted under reasonable belief that
he/she was in danger of death or great harm, and
had no means of escape
◦ May only use such force as is reasonable necessary
to prevent personal harm or imminent harm to
others
◦ Recent changes in state law have made it easier to
claim self defense
 E.g., “stand your ground” laws mean you do not have
to attempt to escape to argue self defense
 E.g. “make my day laws” mean you can shoot someone
who you think threatens you in your home – you did
not know the person was delivering pizza and got the
address wrong
◦ The threat must be immediate
 But hard to define (e.g., battered women who kill their
spouses while they are asleep)
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Entrapment
◦ The police may not induce someone to
commit a crime they otherwise would not
have done through the use of traps, decoys,
and deception.
◦ The motive for committing a crime originates
with the police, not the offender
◦ But police may provide someone with the
opportunity to commit a crime.
 Setting up a sting operations means gives someone a
chance to commit a crime, not the motive to commit it
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Duress
◦ Person is forced to commit a crime in order to
prevent death or serious physical harm to
themselves or someone else
 E.g., being told to rob a store or a family member will
be hurt.
 The threat of duress must be reasonable
◦ Generally may not claim duress as a defense or
justification to the crime of murder.
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Necessity
◦ In order to prevent a greater harm a crime is
committed. Must be able to show that any
reasonable person would have done so
 E.g. someone without a cell phone breaking into a
closed store to call an ambulance
◦ Generally does not apply to social or moral agendas
 Shutting down nuclear power plants or abortion clinics
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The federal and state governments
consistently make efforts to reform the law
to ensure it reflects the needs of society.
◦ Advances in technology or new social factors
require creation of additional laws
 E.g., computer crimes or child pornography on the
internet
◦ Changes in society may dictate decriminalization
or criminalization of certain acts
 E.g., stalking
◦ Defenses and justifications undergo similar
changes.
Underneath
 What brought about this new law? And why
now?
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Substantive criminal law primarily defines
crimes.
Procedural criminal law consists of the rules
and procedures that govern the pretrial
processing of criminal suspects and the
conduct of criminal trials.
Main source of procedural law is the Bill of
Rights, especially amendments four, five, six,
eight and fourteen to the Constitution.
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4th Amendment: Regulates searches and seizures.
5th Amendment: Protects against selfincrimination, double jeopardy, and guarantees
right to grand jury.
6th Amendment: Right to a speedy and public trial
by an impartial jury, right to counsel, notice of
charges, and confrontation of witnesses.
8th Amendment: Prohibits excessive bail, excessive
fines, and cruel and unusual punishment.
14th Amendment: makes Bill of Rights applicable
to the states. Equal protection under the law.
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Due Process of the Law
◦ Found in both the 5th and 14th Amendments
◦ Refers to the essential elements of fairness under
law
◦ Substantive due process protects against laws
that are unfair.
◦ Procedural due process ensures no one is
deprived of life, liberty, or property without
proper and legal criminal process.
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Equal Protection of the Law
Found in the 14th amendment
Law cannot treat people in same
situations or for the same conduct
differently, on the basis of race, gender,
or other group memberships recognized
as “suspect” in law (religion, national
origin, etc)
Prohibits discrimination and arbitrariness
by practitioners in how the law is applied
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Found in 4th and 5th Amendments
No intrusion by police into privacy of persons
or property without proper legal cause
(search and seizure of evidence, warrant
requirement)
Persons in police custody must be informed
of their right against self incrimination
(Miranda warning); confessions cannot be
compelled
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Notice of charges – accusation
A formal hearing
The right to counsel/representation
Opportunity to respond to charges
Opportunity to confront and cross-examine
witnesses
Free from self-incrimination – “take the fifth”
Opportunity to present one’s own witnesses
A decision made on the basis of substantial
evidence and facts produced at hearing
Written statement of reasons for the decision
An appellate review procedure
Found in 8th Amendment
 Punishment cannot be cruel and
unusual by prevailing moral standards
of the society
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Convicted offenders under control of the
state (probation, parole, prison, jail) are
entitled to minimal conditions of human
dignity (safety, food, health care, access to
communications, practice of established
religion, access to rehabilitation services)
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Guarantees equal protection of the law and
due process
Passed after the civil, applied to federal cases
only
Was applied to state and local courts
(“incorporated” into state law) by the Supreme
Court, mainly during the 1960s
Big case: Mapp v Ohio, 1961 (applied the
exclusionary rule to state courts)
Other Bill of Rights protection incorporated
piecemeal to state levels