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Chapter 4
Criminal Law: Substance and Procedure
Substantive and Procedural Law

Substantive Criminal Law:

A body of specific rules that declares what conduct is criminal and
prescribes the punishment to be imposed for such conduct

Procedural Law:

The rules that define the operation of criminal proceedings, from
obtaining a warrant or making an arrest through trial, sentencing
and appeal
Historical Development of the Criminal Law

Babylonian Code of Hammurabi (2000 B.C.)

Mosaic Code of the Israelites (1200 B.C.)

Roman Twelve Tables (451 B.C.)

Corpus Juris Civilis (6th Century)

French Civil Code

Early Anglo-Saxon societies

wergild (monetary compensation) for criminal violations

guilt was determined by two methods:

compurgation

trial by ordeal
The Common Law Legal Tradition

After the Norman conquest of England, the common law tradition
develops

Judges have the power to “interpret” acts according to customs,
traditions and previous legal decisions

Stare Decisis:

To stand by decided cases; the legal principle by which the
decision or holding in an earlier case becomes the standard by
which subsequent similar cases are judged
Civil vs. Criminal Law

Civil Law:

All law that is not criminal, including tort, contract, personal
property, maritime and commercial law

Tort Law:

The law of personal wrongs and damage; includes negligence,
libel, slander, assault, and trespass
Sources of the Criminal Law

Common law, statutes and case decisions

Administrative rules and regulations

Constitutional laws
Classifying Crime – Two Primary Groups

Group I

Felony - A more serious crime that carries a penalty of
incarceration in a state or federal prison usually for one year or
more

Misdemeanor - A less serious crime usually punishable by a fine
or incarceration in a local jail for less than one year


Violations
Group II – other statutory classifications such as:

Juvenile delinquency

Sex-offender categories

Multiple or first offender classifications
Legal Definition of Crime

A legal wrong

Prohibited by the criminal law

Prosecuted by the state in a formal court proceeding in which a
criminal sanction or sentence may be imposed
Guilty Mind and Guilty Act


Mens Rea: A guilty mind; the intent to commit a criminal act

The intent to do an act

Knowledge of circumstances that make the act a criminal offense
Actus Reus: An illegal act, or failure to act, when legally required
Strict Liability Crime

A criminal violation (usually one that endangers the public welfare)
that is defined by the act itself, irrespective of intent

Examples include things like speeding and serving alcohol to a
minor because he/she looked older
Criminal Defenses

Individuals defend themselves against criminal charges by refuting one or
more elements of the case. For example, they can refute the:


Actus reus – claiming not to have committed the behavior

Mens rea – claiming not to have the necessary mental intent for the act
Justification – a defense that admits the criminal act but maintains that the
act was justified because of necessity, duress, self-defense or entrapment

Ignorance or Mistake – as a general rule ignorance is not an excuse;
however, in limited cases the court has recognized it as a defense

Insanity – a defense to a criminal prosecution in which the defendant’s state
of mind negates his or her criminal responsibility
Criticisms of the Insanity Defense

Spurs crime

Releases criminal offenders

Requires extensive use of expert testimony
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Commits more criminals to mental institutions than prisons
Other Defenses

Intoxication – Voluntary intoxication as a general rule is not
considered a defense. However, involuntary intoxication caused by
mistake or duress may be accepted as a defense.

Age – Common law established minimum age limits for a reliable
presumption of culpability. Today, state statutes have specified age
limits. The general trend is to lower the minimum age at which
criminal responsibility is presumed capable.
Entrapment

A legal defense that maintains the police originated the criminal idea
or initiated the criminal action
Substantive Criminal Law Reform

An effort has been made by the federal and state governments to
update legal codes so that they may accurately reflect:

Public opinion

Social change

Technological innovation

Other important social issues
Procedural Law and the Bill of Rights

Procedural law consists of the rules and procedures that govern the
pretrial processing of criminal suspects and the conduct of criminal
trials.

First ten amendments to the U.S. Constitution

Purpose is to prevent government from usurping the personal
freedom of citizens

Applied to state actions through the use of the Due Process clause of
the 14th Amendment
Key Constitutional Protections:
The Fourth Amendment

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized
Key Constitutional Protections:
The Fifth Amendment

No person shall be held to answer for a capital, or otherwise
infamous crime, unless of a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; not
shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; not shall private property be taken for public use,
without just compensation
Key Constitutional Protections:
The Sixth Amendment

In all criminal proceedings, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him, to have compulsory process for obtaining
witnesses in his favor; and to have the assistance of counsel for his
defense

(The above excerpts from amendments modernize
spelling/capitalization, but retain outdated punctuation.)
Key Constitutional Protections:
The Eighth Amendment
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Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted
Incorporation Theory
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A view that all the provisions of the Bill of Rights are included in the
14th Amendment and are therefore applicable in state proceedings
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Selective incorporation holds that provisions of the Bill of Rights must
be applied to states on a case-by-case basis
The Meaning of Due Process

Justice Felix Frankfurter emphasized the definition of due process in
Rochin v. California (1952):
“Due process of law requires an evaluation based on a disinterested
inquiry pursued in the spirit of science on a balanced order of facts,
exactly and clearly stated, on the detached consideration of
conflicting claims . . . on a judgment not ad hoc and episodic but duly
mindful of reconciling the needs both of continuity and of change in a
progressive society.”