1. Unit 2: An American Perspective on Criminal Law CJ106 Foundations of International and Comparative Criminal Justice

2. Unit 2 Assignments Read (eBook): Chapters 3 and 4 Extra Extra! (readings) Graded Work: -- Discussion Board (25 pts) -- Seminar (15 pts) -- Quiz (30 pts) 70 Points Total

3. Discussion Boards Follow “The Rule of Threes”: – Three (3) responses minimum – Three (3) different days – Three (3) responses express critical thought and advance the discussion

4. Quizzes Unlimited retakes (within unit) Unlimited time (within unit) Conclusion: go slow, and retake the quiz until you answer every question correctly and collect the full 30 points.

5. Seminar Topics: Tonight Substantive and Procedural (criminal law) The crime control model and the due process model The four legal traditions The impact the war on terrorism has had on issues of safety and liberty Balancing security and personal liberties.

6. Substantive Criminal Law What is substantive criminal law? Give an example.

7. Substantive Criminal Law Substantive criminal law defines the conduct that qualifies as a crime. An example of substantive criminal law is the Illinois the Criminal Code. It contains definitions of all conduct that constitutes a crime, such as robbery, murder, theft, and kidnapping.

8. Procedural Criminal Law What is procedural criminal law? Give an example.

9. Procedural Criminal Law Procedural criminal law involves the rules that govern the enforcement of criminal laws. (Think of our constitutional protections in the Bill of Rights.) Examples: -- Search and Seizure (4 th Amendment) -- Privilege Against Self-Incrimination (5 th Amendment) -- Right to Counsel (6 th Amendment) -- No Cruel and Unusual Punishment (8 th Amendment

10. Models of Criminal Process Due Process model Criminal Control model

11. Due Process Model What is the due process model? Examples?

12. Due Process Model Assumes freedom is so important that every that every effort must be made to ensure that government intrusion follows legal procedure Seeks to make decisions that identify legal guilt Follows rules that emphasize containing the government’s level of intrusion into citizens’ lives Emphasizes legitimacy of action Insists on a formal, adjudicative, adversarial fact-finding process, even though such restraints, may keep the process from operating with maximal efficiency

13. Due Process Model Examples Legal guilty (versus factual guilt) – See example on pp. 83-84 Warrantless searches and seizures presumed unreasonable

14. Crime Control Model What is the crime control model? Examples?

15. Crime Control Model Assumes freedom so important that every effort must be made to repress crime Seeks to make decisions what will identify factual guilt Follows rules that emphasize the repression of criminal activity Emphasizes efficiency of action (i.e., speed and finality) Requires a high rate of apprehension and conviction by early exclusion of those not likely to be guilty

16. Crime Control Model Examples – Guilty pleas (barest form of adversarial process) – Probable cause to detain (Gerstein) – Finality of Conviction: constitutional right to only one appeal after conviction; no constitutional right to collaterally attack conviction

17. Due Process vs. Crime Control Who is the greatest threat to our freedom? – government agents, like police or prosecutors -OR- – the criminal trying to harm us * How would each model answer the question? * Can both government and criminals deprive of property, liberty, and life? * Who do you think is the greater threat? *Which model does the United States follow?

18. Balancing Due Process and Crime Control Due process = liberty Crime control = safety/security Liberty and safety are always at odds. How do we balance our values of liberty and safety?

19. Balancing Due Process and Crime Control Benjamin Franklin’s once said: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Do you agree or disagree with the quote? Explain.

20. Four Legal Traditions Identify the four legal traditions we see in the world today?

21. Four Legal Traditions Common Civil Socialist Islamic (religious/philosophical)

22. Common Law (Origins) Feudal practices (historical base) Custom (common legal tradition with principles) Equity (a sense of fairness) – Law is binding because it is based on custom

23. Civil Law (Origins) Roman Law (written worldly law) Canon Law (written spiritual law) Codification (written and revolutionary) – Written: law enacted by recognized authority – Revolutionary: abolishes all prior laws Law is binding because it was appropriately authorized and record. **Note: common law countries have codified laws, but they supplement (not replace) prior laws.

24. Socialist (Origins) Russian law – primary: decisions by princes acting as judges – Secondary: customs and Byzantine law Law as artificial – Law is an arbitrary product of autocratic sovereigns (“Law is like a wagon tongue, it goes wherever you turn it.”) Marxism-Leninism – law is subordinate to policy (i.e., the policy that a collectivized economy and social state is above the idea of law or individual rights). Law is a tool (to assist in achieving a communist state), not an absolute value. Law will ultimately be irrelevant.

25. Islamic or Shari’a Law (Origins) Qur’an and Sunna (primary law) – Qur’an: contains rules of God for human behavior (religious, social, personal, economic) – Sunna: living by the example of the prophet Muhammad (do as he said, did, or approved). The Sunna explains, clarifies, and amplifies the Qur’an. (Sunna recorded in the hadiths) ijma and qiyas (secondary law) – Ijma: the process whereby legal scholars reach an agreement (consensus) on questions not answered by Qur’an or Sunna)—a gap filler. – qiyas: the process of reasoning by analogy (in order to reach a consensus) Schools of law (variations in interpreting/applying Qur’an and Sunna) – Sunni: Hanafi, Maliki, Shafi’i, and Hanbali – Shi’a: Ja’afari No distinction b/w legal system and other controls on a person’s behavior. Islamic law intrinsic to Islamic faith and life.

26. Cultural Comparisons What is the position of the judiciary in relation to other government branches? – Common: courts share in balancing power – Civil: courts have equal but separate power – Socialist: courts inferior to legislature – Islamic: courts and other gov’t branches subordinate to the Shari’a

27. Substantive Comparisons What is the source of law, or where do laws come from? – Common: custom – Civil: written code (provided by rulers or legislators) – Socialist: principles of the socialist revolution – Islamic: divine revelation

28. Procedural Comparisons How is flexibility provided in each tradition when the source (e.g., custom or written code) doesn’t answer a question? – Common: judge-made law and particularization – Civil: different judges define and interpret written codes differently; identifying issues as questions of law – Socialist: principles of analogy and directions from higher- level courts (punish conduct not covered in criminal code by analogizing to conduct outlawed in the code) – Islamic: Mazalim courts and process and ijtihad

29. Unit 3 Project Relying heavily on the course material from Units 1 and 2, as well as outside research, create a 6-8 slide PowerPoint presentation (excluding the title and reference slides) that addresses the following: Identify the sources and foundations of international criminal justice – Discuss and explain the four legal traditions that are identifiable today – How are the traditions similar? – How do the traditions differ?