CHAPTER TWO

CHAPTER TWOFOUNDATIONS AND FUNCTIONS OF LAW

Provides funding for criminal justice agencies

Creates criminal laws

Determines sentencing guidelines

Legislative Role

Pre-Historical Era (Earliest History-2000 B.C.)

Societies based upon clans, tribes, or kinship

Customary Laws based upon social norms

Informal but effective law enforcement

Chiefs or elders served as judges

Use of Irrational justice Reliance on religious, ethical, and mystical considerations

The Development of Law

Early Historical Era (2000 B.C.-1000 A.D.)

Development of Written Codes Egyptians, Babylonians, Hebrews Greeks and Romans

Significance of Early Historical Legal Systems Establishment of written codes Emergence of different roles in the legal system Great Influence on the legal systems of Europe and the

U.S. Influence of Canon Law (church law) on legal systems

The Development of Law

Modern Era (1000 A.D.-Present)

Renaissance (1300s to 1600s)

Age of Enlightenment (1700s)

Reemergence of natural law Belief that there is a divine source of law higher than

any other Absolute and unchangeable law that is applicable to

all people

The Development of Law

Penal Law Criminal actions that a society prohibits

Compensatory Law Civil law dispute among private individuals

Therapeutic Law Focus on helping and treating an offender’s criminal behavior

Conciliatory Law Focus on resolving conflict and providing a winning outcome for

both parties

Typologies of Law

Code law systems

Developed from Roman and Napoleonic Codes

Features No judge-made law Emphasis on the rights of the victimized community All laws are written in a complete code Inquisitorial legal system Decisions by judicial panels

Civil Law Legal Systems

Broad ruling documents are interpreted by judicial review

Judicial rulings are considered a source of law

Emphasis on the rights of the accused

Adversarial legal system

Decisions by juries

Common Law Legal Systems

Civil Law Disputes between private parties (plaintiff and defendant) Standard of persuasion is Preponderance of the Evidence Both parties may be at fault (contributory negligence) Attorneys may represent a client on a contingency fee Sanctions include monetary damages and injunctions

Criminal Law Offenses against society (prosecutor brings the case on behalf of

the government Standard of persuasion is Beyond a Reasonable Doubt Defendant has the right to counsel Sanctions include fines, probation, or jail/prison time

Civil and Criminal Law

Substantive Law Defines the acts that are crimes Defines the penalties for criminal acts

Procedural Law Defines how a case must be processed

Attorney appointment Jury selection Evidence admissibility Criminal investigation Sentencing

Substantive and Procedural Law

Common Law Based upon a community’s norms and values Applied through stare decisis, or application of prior judicial

rulings to similar cases

Constitutional Law All other laws must comport with the U.S. Constitution State laws must also comport with that state’s Constitution Constitutionality determined by appellate judges

Sources of Law

Statutory Law Written laws enacted by legislative bodies Encompasses almost all U.S. criminal laws

Case Law Judges create law by deciding constitutional law issues Judicial policymaking

Administrative Law Federal and state agency regulations have the force of law Published in the Federal Register

Sources of Law

Degree of Evilness Mala in se: action that is evil in and of itself Mala prohibita: action that is wrong because of a law prohibiting it

Offense Seriousness Felonies

most serious offenses include possibility of imprisonment for over one year

Misdemeanors lesser offenses include possibility of imprisonment for less that one year

Petty Misdemeanors potential sentence of fines only

Crime Classifications

Mens rea Criminal intent or motivation

Actus reus Criminal act Does not always have to be completed

Concurrence Mens rea and actus reus must be present at the same time Defendant must have criminal intent and must act upon that intent

Elements of a CrimeCorpus delicti: “body of a crime”

Conspiracy Two or more people form an agreement to commit a crime, and commit an overt act toward the completion of the crime

Solicitation One person tries to persuade another to commit a crime on their

behalf

Attempt A crime is started, but is not completed

Inchoate Offenses

Justification Defenses The defendant’s actions were not legally wrong

Excuse Defenses The defendant’s actions were legally wrong, but an

extenuating circumstance excuses the action

Defenses to Crime

Self-defense A person may use necessary force in an attack The person cannot be the initial aggressor

Necessity A person may commit a criminal act to save himself

from forces of nature Example: hikers break into a cabin to save

themselves from death in a snowstorm

Justification Defenses

Duress A person commits a crime due to threat of bodily harm

Entrapment A person commits a crime that was initiated by another person The person who committed the crime would not have done so otherwise

Infancy A person who committed a crime was too young to form criminal intent Minimum age is set by statute

Insanity A person was unable to form criminal intent due to mental illness

Intoxication A person was unable to form criminal intent due to involuntary intoxication

Alibi A person could not have committed a crime because they were somewhere else

Excuse Defenses

Classified by the FBI’s Uniform Crime Reports

Crimes against Persons

Crimes against Property

Crimes against Public Order

Other Offenses

Types of Crime

Aggravated Assault

Murder and Nonnegligent Manslaughter

Forcible Rape

Robbery

Crimes Against Persons

Larceny/Theft

Burglary

Motor Vehicle Theft

Arson

Crimes Against Property

Breach of the Peace Fighting/Affray Disorderly Conduct Public Drunkenness Unlawful Assembly Carrying Weapons Obstructing Traffic Animal Abuse

Crimes Against Public Order

Crimes against Public Welfare

Crimes against Public Morality

White Collar/Corporate Crimes

Modern Crimes

Crimes Against the Government

Other Offenses