Unit 6 Criminal law and Procedure

To Do list Read Chapters 4 and 10 in your textbook Review the additional websites in the unit Participate on the classroom Discussion Board Attend Lecture #1 Attend Lecture #2 Take the Unit 6 Quiz Practice your vocabulary

Plan for this seminar Distinguish substantive criminal law from procedural criminal law Short history of criminal law Answer the question what is a crime and who determines that in our law? The Constitution and criminal law Review some of the basic requirements for crimes Discuss the basic procedures used in a criminal case

Substantive v. procedural Substantive defines what is a crime and establishes the penalties Crimes such as murder, robbery, theft or even that simple parking ticket are examples of substantive crimes Procedural law regulates the enforcement of the substantive law. It is the process used by the courts to establish guilt. Substantive then is the crime itself and procedural is the process use to prove that guilt

History Crimes are offenses against society In a criminal case the role of the victims' is that of a witness. Victims do not control how or when charges are filed or how a case is pursued. The purpose of the law is not to get “revenge” for the victim but to protect the rules of society. Criminal law rests on the theory that individuals are responsible for their actions and accountable for their actions

History Initially crimes came to us from English common law Felonies were considered mala in se or evils in and of themselves. When you think of felonies like murder, rape and robbery you can easily see the connection. Mala prohibita were what today we would consider a misdemeanor. They are crimes because society has said they are crimes like minor traffic offenses, possession of marijuana etc You get some cross over between the two for example theft might be a felony or a misdemeanor, as might drug possession.

History Today, however, we do not rely on common law to tell us what is or is not a crime The legislative branch, both federal and state pass laws that it classifies as crimes When researching criminal law in our society today you must always start with a written statute Judges can not make up a new criminal law on the spot in a case, that would amount to a violation of Constitutional “Due Process”

So what is a crime? The simple answer is a crime is whatever the legislature has said is a crime. We are assumed to know what the law is with respect to crimes and it is possible to violate the law, ( commit a crime) without knowing Criminal law also has a lot of discretion at various levels from the initial contact with police all the way through the process How necessary is this discretion in the criminal system?

Constitutional impact The Constitution has a tremendous impact on criminal law, primarily affecting the procedural side of the law which we will talk more about later in this lecture But the Constitution can also impact substantive criminal law For example Brandenburg v. Ohio struck down an Ohio statute that made it a crime to advocate violence as a means of political change. The Court rules it unconstitutional to punish someone for merely advocating violence if there was no imminent threat. Here you see a balance with the 1 st Amendment right of free speech

Constitution Reno v. American Civil Liberties Union which struck down a federal congressional law that made it a crime to display “indecent” material on the internet in a manner that might make available to minors. The Court found this law too broad and an impingement on free speech Texas v. Johnson, which we talked about in unit 4, struck down criminal laws making it unlawful to burn a flag as a protest

Crimes Each crime has a series of “elements” or steps that a prosecutor must prove By starting with the statute we have our outline as well as our organization for seeing what has to be done to prove the crime These provide a very methodical way to approach a criminal case when you are analyzing a factual case

Crimes To constitute a crime there must be a wrongful act or omission ( actus reas) and criminal intent ( mens rea) It is not enough to just think about a crime Intent can be specific or general Different criminal statutes might require different types of intent.

Crimes We can also distinguish types of crime by Inchoate which means we are taking steps but have not yet completed the crime as in attempt, solicitation or conspiracy Crimes against persons like assaultive actions, rape, murder, false imprisonment etc Property crimes like theft, burglary, fraud, forgery

Crimes White collar crimes which occur during a person’s occupation or profession Organized crime Vice crimes like prostitution, illegal gambling Offenses against public order and safety like motor vehicle crimes, weapons

Crimes Offenses against the administration of justice like perjury, resisting arrest, flight to avoid prosecution Environmental crimes

Crimes There are numerous defenses to crimes which may apply depending on the facts Infancy Intoxication but note that voluntary intoxication generally will not help you Insanity Automatism like sleep walking

Crimes Duress Necessity Consent, but this is a limited defense because a victim can not “consent” to a criminal act Mistake of law or fact when specific intent is required. As with consent these defenses are very limited

Crimes Self Defense Defense of others Defending your property is much more limited in criminal law Immunity Double jeopardy Statute of limitations

Crimes Entrapment Selective prosecution is when prosecution is based on impermissible grounds like race, religion, etc Novel defenses that have not gained much ground PMS, PTSS, compulsions like gambling, junk food, ( Twinkie defense) Don’t expect these to become acceptable defenses anytime soon

Crimes Punishment is set by the statute. It may be mandatory or may involve some discretion Goals include retribution, deterrence and rehabilitation Types of penalties fines, probation, incarceration, parole, boot camps, community service, restitution and sentencing often involves use of more than one of these

Criminal Procedure The general course of a criminal case is as follows Police Arrest; traffic citation, police citation or citizen information starts the process in most cases Information is then sent to the prosecuting attorney who decides what charges if any to bring In some instances a grand jury may be used for this purpose

Criminal Procedure Once charges are filed in court based on the type of charge there will be an initial appearance by the defendant At the initial appearance the defendant is informed of the charges and may plead guilty or not guilty A guilty plea takes the case to the sentencing phase A not guilty plea takes the case down the trial route

Criminal Procedure In a criminal case discovery is essentially one sided. The government is required to turn over the information it has to the defendant and the defendant for the most part is not required to turn information over to the government. There are some defenses, in particular insanity, which the government must be notified of

Criminal Procedure Assuming no plea agreement is reached the case proceeds to trial A jury is guaranteed but that right can be waived by the defendant In a criminal case it is the government’s responsibility to prove the case beyond a reasonable doubt The defendant does not have to prove that he/she did not commit the crime and all juries are instructed on this issue

Criminal Procedure At the start of trial a jury is selected Opening statements are made The prosecution puts its case on first The defense then has an opportunity to present what case it so chooses Closing arguments Case is submitted to a jury In a criminal case the verdict must be unanimous

Criminal procedure If the verdict is “not guilty” meaning the state did not prove its case, the case ends. The government can not appeal a “not guilty” verdict If the verdict is guilty then sentencing in accordance with the applicable statute is set The defendant does have a right to appeal a guilty verdict

Criminal law Next lecture we will specifically look at some Constitutional decisions that impact criminal procedure We will also continue our case study using the Applegate’s and how the criminal law might apply to their situation with the school board