Essentials of Criminal Justice - 6e - c 03, Angielskie [EN](4)(2)
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C
HAPTER
3
72
THE POLICE AND LAW ENFORCEMENT
Criminal Law: Substance
and Procedure
Chapter Outline
Historical Development of
The Criminal Law
Common Law and the Principle of Stare
Decisis
Criminal Defenses
Excuse Defenses
Justification Defenses
Reforming the Criminal Law
Creating New Crimes
Changing Defenses
Sources of the Criminal Law
Constitutional Limits
Crimes and Classifications
Constitutional Criminal Procedure
The Legal Definition of a Crime
Actus Reus
Mens Rea
The Relationship of Mens Rea and
Actus Reus
Strict Liability
Due Process of Law
The Meaning of Due Process
72
53247_03_Ch03_p072-101 pp3.indd 72
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73
POLICE IN SOCIETY: HISTORY AND ORGANIZATION
Learning Objectives
1. Know the similarities and differences
between criminal law and civil law
2. Understand the concept of substantive
criminal law and its history
3. Discuss the sources of the criminal law
4. Be familiar with the elements of a crime
5. Define the term “strict liability”
6. Be able to discuss excuses and justifica-
tion defenses for crime
7. Discuss the concept of criminal procedure
8. Describe the role of the Bill of Rights in
shaping criminal procedure
9. Know which amendments to the Consti-
tution are the most important to the justice
system
10. List the elements of due process of law
Key Themes
The law is multifaceted and controls inter-
actions between and among individuals
and organizations, (civil), and between
individuals and the state (criminal). It
therefore controls both public and private
interactions.
The law is not constant but has evolved
over time, reflecting moral, practical, and
political influences.
As the law evolved, it recognized that
most crimes have both mental and physi-
cal elements. To commit crime, not only
must a person engage in a harmful act
but he or she must intend to do so.
Individuals may engage in forbidden acts
but can defend themselves by denying
their criminal intent. Under most circum-
stances, if they have a valid excuse or
justification, they cannot be found guilty
of crime.
The Constitution sets out the principles
that control both the content of the law
(substance) and how the justice system
is administered (procedure).
COBL
Profile
A
FTER getting her law degree at St. John’s
University School of Law, Janine Ferraro
started her career as an assistant district
attorney in the Kings County (Brooklyn, New
York) DA’s office. In the DA’s office, she worked
very closely with the NYPD in narcotics prose-
cutions and that association piqued her inter-
est in police work. When an opportunity arose
to work for the NYPD she jumped at the chance
and was hired to work in the department’s Legal
Bureau, Criminal Division.
The Legal Bureau was staffed by attorneys
and law students. The attorneys were evenly
divided between in-service police officers who
held law degrees and civilian attorneys. The law
73
53247_03_Ch03_p072-101 pp3.indd 73
11/12/07 9:56:33 PM
74
PART 1
THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE
students were all police officers and were assigned to
the Legal Bureau usually as a condition of having
received a law school scholarship from the NYPD. This
combination of officers and civilians, attorneys and law
students, made for some interesting workplace dynam-
ics. Janine had to face such issues as whether a law
student who is a lieutenant has “rank,” or supervisory
authority, over a civilian attorney, and what dangers in
the field should a civilian attorney be expected to face?
Working in the police Legal Bureau is challenging. Duties
include counseling high-ranking members of the NYPD on
constitutional and criminal law matters and providing legal
advice, via memoranda and personal consultation, on a variety
of issues raised by members of the NYPD in the course of
their duties. Topics range from long-term strategic planning
to on-the-scene requests for legal advice from police officers
engaged in investigations and arrests. A police attorney is
required to assist in the arrest processing of high-profile cases
and mass arrests. A police attorney may also be called upon
to develop and deliver training for police officers, detectives,
and superior officers on a variety of constitutional and crimi-
nal law topics. In a typical day, a police department attorney
might be asked to make instant decisions on a variety of topics:
Can an officer execute a search warrant without actually having
one on his person? Can a parent consent to the search of a
teenage child’s bedroom? Is it a crime to have a crossbow in your
car? What can be done when a suspect has swallowed the
evidence?
If Janine Ferraro’s work in the NYPD Legal Bureau
sounds fascinating, it’s because the criminal law is a
fascinating subject. And because crime and justice are
essentially entwined with the criminal law, a working
knowledge of the law is critical for the criminal justice
practitioner in our modern society.
substantive criminal law
A
body of specific rules that de-
clare what conduct is criminal
and prescribe the punishment to
be imposed for such conduct.
criminal procedure
The rules
and laws that define the opera-
tion of the criminal proceedings.
Procedural law describes the
methods that must be followed
in obtaining warrants, investigat-
ing offenses, effecting lawful
arrests, conducting trials, intro-
ducing evidence, sentencing
convicted offenders, and review-
ing cases by appellate courts.
Today, the rule of law governs almost all phases of human enterprise, includ-
ing crime, family life, property transfer, and the regulation of interpersonal
conflict. It can generally be divided into three broad categories:
Substantive criminal law
. The branch of the law that defines crimes and
their punishment. It involves such issues as the mental and physical ele-
ments of crime, crime categories, and criminal defenses. Exhibit 3.1 sets
out the main goals of the
substantive criminal law
.
Procedural criminal law
. Those laws that set out the basic rules of prac-
tice in the criminal justice system. Some elements of the law of
criminal
procedure
are the rules of evidence, the law of arrest, the law of search
and seizure, questions of appeal, jury selection, and the right to counsel.
53247_03_Ch03_p072-101 pp3.indd 74
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75
CHAPTER 3
CRIMINAL LAW: SUBSTANCE AND PROCEDURE
3.1
The Goals of the Substantive Criminal Law
Exhibit
Enforce social control
The substantive criminal law
is the main instrument of control at the disposal of an
existing government. The criminal law can be used by
those who hold political power to eliminate behaviors
they believe pose a threat to society or challenge the
government’s authority. The law prevents actions that
challenge the legitimacy of the government, such as
planning its overthrow, collaborating with its enemies,
committing terrorist acts, or engaging in espionage.
Deter criminal behavior
Criminal law is designed
through its application of punishment to control,
restrain, and deter illegal acts before they actually
occur. During the Middle Ages, public executions
drove this point home; today long prison sentences
and an occasional execution are designed to achieve
the same result.
Punish wrongdoing
If the deterrent power of crim-
inal law fails to prevent crime, the law gives the state
the right to sanction or punish offenders. Those who
violate criminal law are subject to physical coercion
and punishment.
Distribute retribution
By punishing people who
infringe on the rights, property, and freedom of others,
the law shifts the burden of revenge from the individual
to the state. Although the thought of state-sponsored
retribution may be offensive to some, it is greatly
preferable to a system in which the injured party or
their friends and relatives seek to redress their injuries
through personal vengeance or revenge.
Maintain social order
All legal systems are designed
to support and maintain the boundaries of the social
system they serve. The free enterprise system is sup-
ported and sustained by criminal laws that protect
property transfer and control market operations.
Express public opinion and morality
Criminal law
reflects public opinions and moral values. Although some
crimes, such as murder and forcible rape, are almost
universally prohibited, others, such as substance abuse
and those involving sex and gambling, reflect contempo-
rary moral values and may undergo change according to
social conditions and attitudes. The criminal law is used
to codify changing social values and educate the public
about what is expected of them and their behavior.
Restoration
Victims deserve restitution or compen-
sation for their pain and loss. The criminal law can
be used to restore to the victims what they have lost.
Because we believe in equity and justice, it is only
fair that the guilty help repair the harm they have
caused others by their crimes. Punishments such as
fines, forfeiture, and restitution are connected to this
legal goal.
Civil law
. The set of rules governing relations between private parties,
including both individuals and organizations (such as business enterprises
and/or corporations).
Civil law
is used to resolve, control, and shape such
personal interactions as contracts, wills and trusts, property ownership,
and commerce. The element of civil law most relevant to criminal justice is
torts
, or the law of personal injuries. (Exhibit 3.2 sets out the various types
of torts.) If you are interested in becoming involved in this process and
want to become an attorney, read the Careers in Criminal Justice feature.
In some instances, a person who has been the victim of a criminal act may
also sue the perpetrator for damages in a civil tort; some crime victims may
forgo criminal action and choose to file a tort claim alone. It is also possible to
seek civil damages from a perpetrator even if he or she is found not guilty of
crime, because the evidentiary standard in a tort action is less than is needed
for a criminal conviction (preponderance of the evidence compared to beyond
a reasonable doubt). In an infamous case, the families of Nicole Brown and
civil law
All law that is not crim-
inal, including torts (personal
wrongs), contract, property,
maritime, and commercial law.
tort
A personal injury or wrong
for which an action for damages
may be brought.
3.2
Three Categories of Torts
Exhibit
Intentional torts
Injury that the person knew or
should have known would occur through his or her
actions—a person attacks and injures another
(assault and battery) after a dispute.
Strict liability torts
A particular action causes
damage prohibited by statute—a victim is injured
because a manufacturer made a defective product.
Negligent torts
Injuries caused because a person’s
actions were unreasonably unsafe or careless—a
traffic accident is caused by a reckless driver.
53247_03_Ch03_p072-101 pp3.indd 75
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76
PART 1
THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE
CAREERS in
Criminal Justice
Attorney
Duties and
Characteristics
of the Job
Attorneys use their experience and extensive knowledge of the law and the legal sys-
tem to defend the rights of their clients and protect their best interests either in a legal
setting, during a trial, or by settling their grievances in or out of court.
They also act as a legal advisor and engage in such activities as drawing up and/or inter-
preting a legal document or contract, and they advise clients of changes in existing laws.
Attorneys will often choose a field of specialization such as tax law or intellectual
property and typically work in firms or start their own practice.
Some work for the federal, state, or local government; others take advantage of
increasing opportunities for employment within businesses.
Attorneys work long hours; especially if a case goes to trial, a 60+ hour work week is
not uncommon.
Job Outlook
Job opportunities are expected to grow at an average rate for the next several years.
A good academic record from a prestigious law school, as well as work experience,
mobility, and additional education in a field of specialty, are especially helpful.
Jobs will be most plentiful in urban areas, where there tend to be more law firms, big
businesses, and government offices.
Salary
Attorneys have a median annual salary of about $95,000.
The majority of attorneys earn between $64,620 and $143,620.
Partners in large national firms in Chicago or New York may have an annual salary in
the millions.
An attorney’s salary will depend on type of employer, experience, region, and type of
law being practiced. Extremely successful sole practitioners can win millions in tort
actions.
Opportunities
Competition for jobs with prestigious firms is fierce because there are more graduating
lawyers than there are job positions.
Making the law review, publishing law review articles while in school, and obtaining
prestigious internships can be helpful in securing coveted jobs.
Many lawyers use their education and experience as a means of launching careers
in business, politics, government, or academe.
Qualifications
Gaining entrance to a law school not only takes hard work and discipline but also
good grades and a desirable score on the Law School Admissions Test.
A bachelor’s degree in a program that provides strong analytical and writing skills is
recommended for preparation for law school.
Graduating from an accredited law school and passing the bar are required.
Education and
Training
Attorneys must stay informed of the latest developments in law and often attend
conferences; many states have continuing legal education (CLE) requirements
that must be met.
Some positions such as law school professor, and specialty areas such as patent law,
may require further experience and education.
53247_03_Ch03_p072-101 pp3.indd 76
11/12/07 9:56:34 PM
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C
HAPTER
3
72
THE POLICE AND LAW ENFORCEMENT
Criminal Law: Substance
and Procedure
Chapter Outline
Historical Development of
The Criminal Law
Common Law and the Principle of Stare
Decisis
Criminal Defenses
Excuse Defenses
Justification Defenses
Reforming the Criminal Law
Creating New Crimes
Changing Defenses
Sources of the Criminal Law
Constitutional Limits
Crimes and Classifications
Constitutional Criminal Procedure
The Legal Definition of a Crime
Actus Reus
Mens Rea
The Relationship of Mens Rea and
Actus Reus
Strict Liability
Due Process of Law
The Meaning of Due Process
72
53247_03_Ch03_p072-101 pp3.indd 72
11/12/07 9:56:32 PM
73
POLICE IN SOCIETY: HISTORY AND ORGANIZATION
Learning Objectives
1. Know the similarities and differences
between criminal law and civil law
2. Understand the concept of substantive
criminal law and its history
3. Discuss the sources of the criminal law
4. Be familiar with the elements of a crime
5. Define the term “strict liability”
6. Be able to discuss excuses and justifica-
tion defenses for crime
7. Discuss the concept of criminal procedure
8. Describe the role of the Bill of Rights in
shaping criminal procedure
9. Know which amendments to the Consti-
tution are the most important to the justice
system
10. List the elements of due process of law
Key Themes
The law is multifaceted and controls inter-
actions between and among individuals
and organizations, (civil), and between
individuals and the state (criminal). It
therefore controls both public and private
interactions.
The law is not constant but has evolved
over time, reflecting moral, practical, and
political influences.
As the law evolved, it recognized that
most crimes have both mental and physi-
cal elements. To commit crime, not only
must a person engage in a harmful act
but he or she must intend to do so.
Individuals may engage in forbidden acts
but can defend themselves by denying
their criminal intent. Under most circum-
stances, if they have a valid excuse or
justification, they cannot be found guilty
of crime.
The Constitution sets out the principles
that control both the content of the law
(substance) and how the justice system
is administered (procedure).
COBL
Profile
A
FTER getting her law degree at St. John’s
University School of Law, Janine Ferraro
started her career as an assistant district
attorney in the Kings County (Brooklyn, New
York) DA’s office. In the DA’s office, she worked
very closely with the NYPD in narcotics prose-
cutions and that association piqued her inter-
est in police work. When an opportunity arose
to work for the NYPD she jumped at the chance
and was hired to work in the department’s Legal
Bureau, Criminal Division.
The Legal Bureau was staffed by attorneys
and law students. The attorneys were evenly
divided between in-service police officers who
held law degrees and civilian attorneys. The law
73
53247_03_Ch03_p072-101 pp3.indd 73
11/12/07 9:56:33 PM
74
PART 1
THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE
students were all police officers and were assigned to
the Legal Bureau usually as a condition of having
received a law school scholarship from the NYPD. This
combination of officers and civilians, attorneys and law
students, made for some interesting workplace dynam-
ics. Janine had to face such issues as whether a law
student who is a lieutenant has “rank,” or supervisory
authority, over a civilian attorney, and what dangers in
the field should a civilian attorney be expected to face?
Working in the police Legal Bureau is challenging. Duties
include counseling high-ranking members of the NYPD on
constitutional and criminal law matters and providing legal
advice, via memoranda and personal consultation, on a variety
of issues raised by members of the NYPD in the course of
their duties. Topics range from long-term strategic planning
to on-the-scene requests for legal advice from police officers
engaged in investigations and arrests. A police attorney is
required to assist in the arrest processing of high-profile cases
and mass arrests. A police attorney may also be called upon
to develop and deliver training for police officers, detectives,
and superior officers on a variety of constitutional and crimi-
nal law topics. In a typical day, a police department attorney
might be asked to make instant decisions on a variety of topics:
Can an officer execute a search warrant without actually having
one on his person? Can a parent consent to the search of a
teenage child’s bedroom? Is it a crime to have a crossbow in your
car? What can be done when a suspect has swallowed the
evidence?
If Janine Ferraro’s work in the NYPD Legal Bureau
sounds fascinating, it’s because the criminal law is a
fascinating subject. And because crime and justice are
essentially entwined with the criminal law, a working
knowledge of the law is critical for the criminal justice
practitioner in our modern society.
substantive criminal law
A
body of specific rules that de-
clare what conduct is criminal
and prescribe the punishment to
be imposed for such conduct.
criminal procedure
The rules
and laws that define the opera-
tion of the criminal proceedings.
Procedural law describes the
methods that must be followed
in obtaining warrants, investigat-
ing offenses, effecting lawful
arrests, conducting trials, intro-
ducing evidence, sentencing
convicted offenders, and review-
ing cases by appellate courts.
Today, the rule of law governs almost all phases of human enterprise, includ-
ing crime, family life, property transfer, and the regulation of interpersonal
conflict. It can generally be divided into three broad categories:
Substantive criminal law
. The branch of the law that defines crimes and
their punishment. It involves such issues as the mental and physical ele-
ments of crime, crime categories, and criminal defenses. Exhibit 3.1 sets
out the main goals of the
substantive criminal law
.
Procedural criminal law
. Those laws that set out the basic rules of prac-
tice in the criminal justice system. Some elements of the law of
criminal
procedure
are the rules of evidence, the law of arrest, the law of search
and seizure, questions of appeal, jury selection, and the right to counsel.
53247_03_Ch03_p072-101 pp3.indd 74
11/12/07 9:56:34 PM
75
CHAPTER 3
CRIMINAL LAW: SUBSTANCE AND PROCEDURE
3.1
The Goals of the Substantive Criminal Law
Exhibit
Enforce social control
The substantive criminal law
is the main instrument of control at the disposal of an
existing government. The criminal law can be used by
those who hold political power to eliminate behaviors
they believe pose a threat to society or challenge the
government’s authority. The law prevents actions that
challenge the legitimacy of the government, such as
planning its overthrow, collaborating with its enemies,
committing terrorist acts, or engaging in espionage.
Deter criminal behavior
Criminal law is designed
through its application of punishment to control,
restrain, and deter illegal acts before they actually
occur. During the Middle Ages, public executions
drove this point home; today long prison sentences
and an occasional execution are designed to achieve
the same result.
Punish wrongdoing
If the deterrent power of crim-
inal law fails to prevent crime, the law gives the state
the right to sanction or punish offenders. Those who
violate criminal law are subject to physical coercion
and punishment.
Distribute retribution
By punishing people who
infringe on the rights, property, and freedom of others,
the law shifts the burden of revenge from the individual
to the state. Although the thought of state-sponsored
retribution may be offensive to some, it is greatly
preferable to a system in which the injured party or
their friends and relatives seek to redress their injuries
through personal vengeance or revenge.
Maintain social order
All legal systems are designed
to support and maintain the boundaries of the social
system they serve. The free enterprise system is sup-
ported and sustained by criminal laws that protect
property transfer and control market operations.
Express public opinion and morality
Criminal law
reflects public opinions and moral values. Although some
crimes, such as murder and forcible rape, are almost
universally prohibited, others, such as substance abuse
and those involving sex and gambling, reflect contempo-
rary moral values and may undergo change according to
social conditions and attitudes. The criminal law is used
to codify changing social values and educate the public
about what is expected of them and their behavior.
Restoration
Victims deserve restitution or compen-
sation for their pain and loss. The criminal law can
be used to restore to the victims what they have lost.
Because we believe in equity and justice, it is only
fair that the guilty help repair the harm they have
caused others by their crimes. Punishments such as
fines, forfeiture, and restitution are connected to this
legal goal.
Civil law
. The set of rules governing relations between private parties,
including both individuals and organizations (such as business enterprises
and/or corporations).
Civil law
is used to resolve, control, and shape such
personal interactions as contracts, wills and trusts, property ownership,
and commerce. The element of civil law most relevant to criminal justice is
torts
, or the law of personal injuries. (Exhibit 3.2 sets out the various types
of torts.) If you are interested in becoming involved in this process and
want to become an attorney, read the Careers in Criminal Justice feature.
In some instances, a person who has been the victim of a criminal act may
also sue the perpetrator for damages in a civil tort; some crime victims may
forgo criminal action and choose to file a tort claim alone. It is also possible to
seek civil damages from a perpetrator even if he or she is found not guilty of
crime, because the evidentiary standard in a tort action is less than is needed
for a criminal conviction (preponderance of the evidence compared to beyond
a reasonable doubt). In an infamous case, the families of Nicole Brown and
civil law
All law that is not crim-
inal, including torts (personal
wrongs), contract, property,
maritime, and commercial law.
tort
A personal injury or wrong
for which an action for damages
may be brought.
3.2
Three Categories of Torts
Exhibit
Intentional torts
Injury that the person knew or
should have known would occur through his or her
actions—a person attacks and injures another
(assault and battery) after a dispute.
Strict liability torts
A particular action causes
damage prohibited by statute—a victim is injured
because a manufacturer made a defective product.
Negligent torts
Injuries caused because a person’s
actions were unreasonably unsafe or careless—a
traffic accident is caused by a reckless driver.
53247_03_Ch03_p072-101 pp3.indd 75
11/12/07 9:56:34 PM
76
PART 1
THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE
CAREERS in
Criminal Justice
Attorney
Duties and
Characteristics
of the Job
Attorneys use their experience and extensive knowledge of the law and the legal sys-
tem to defend the rights of their clients and protect their best interests either in a legal
setting, during a trial, or by settling their grievances in or out of court.
They also act as a legal advisor and engage in such activities as drawing up and/or inter-
preting a legal document or contract, and they advise clients of changes in existing laws.
Attorneys will often choose a field of specialization such as tax law or intellectual
property and typically work in firms or start their own practice.
Some work for the federal, state, or local government; others take advantage of
increasing opportunities for employment within businesses.
Attorneys work long hours; especially if a case goes to trial, a 60+ hour work week is
not uncommon.
Job Outlook
Job opportunities are expected to grow at an average rate for the next several years.
A good academic record from a prestigious law school, as well as work experience,
mobility, and additional education in a field of specialty, are especially helpful.
Jobs will be most plentiful in urban areas, where there tend to be more law firms, big
businesses, and government offices.
Salary
Attorneys have a median annual salary of about $95,000.
The majority of attorneys earn between $64,620 and $143,620.
Partners in large national firms in Chicago or New York may have an annual salary in
the millions.
An attorney’s salary will depend on type of employer, experience, region, and type of
law being practiced. Extremely successful sole practitioners can win millions in tort
actions.
Opportunities
Competition for jobs with prestigious firms is fierce because there are more graduating
lawyers than there are job positions.
Making the law review, publishing law review articles while in school, and obtaining
prestigious internships can be helpful in securing coveted jobs.
Many lawyers use their education and experience as a means of launching careers
in business, politics, government, or academe.
Qualifications
Gaining entrance to a law school not only takes hard work and discipline but also
good grades and a desirable score on the Law School Admissions Test.
A bachelor’s degree in a program that provides strong analytical and writing skills is
recommended for preparation for law school.
Graduating from an accredited law school and passing the bar are required.
Education and
Training
Attorneys must stay informed of the latest developments in law and often attend
conferences; many states have continuing legal education (CLE) requirements
that must be met.
Some positions such as law school professor, and specialty areas such as patent law,
may require further experience and education.
53247_03_Ch03_p072-101 pp3.indd 76
11/12/07 9:56:34 PM
[ Pobierz całość w formacie PDF ]