Sources of Criminal Law

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Updated: Mar 28, 2022
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Chapter One: Introduction

A. In General

– A crime is an act or omission prohibited by law for the protection of the public

– Sources of criminal law come from:

(i) English common law developed decisions of the English courts and became part of the common law

(ii) Statutory codes- many jurisdictions have comprehensive criminal codes that define basic principles of liability, specific crimes and defenses

(i) Model penal Code- developed by the American Law Institute code has served as the basis for almost all 1962 post criminal statues (Dix, 2016)

B. Classifications of Crimes

– Felonies and misdemeanors and their distinctions are often cited by modern statutes

– Malum in se crimes that are inherently dangerous or immoral in themselves usually felonies

– Malum prohibitum not inherently dangerous but because they are prohibited by law regulate the general welfare of the population

C. Burden of Proof and Related Matters

– Prosecution has the burden of proof and must prove all elements of the crime beyond a reasonable doubt

– Constitutional considerations maintain due process rights, and right to a trial by jury

– Due process rights at the 6th amendment gives the defendant a right to have a jury determine the facts

– Burden maybe imposed on the defendant in example in murder burden of proof in self-defense can be placed on defendant

Conclusion: Codified law or legislation of the books maintains certain classifications to maintain justice. Common law, Statutory law, and Model Penal code. These laws are different and deliver different meanings of the rule of law. Offenders must then battle for their freedom in the court room where they are given certain due process rights to be heard by a jury. The burden of proof is placed on the prosecution to prove elements of the charge and by the defendant to collaborate any defenses. Whether felony or misdemeanor malum in se or malum prohibitum the offender will have his day in court and justice will be determined.

Chapter Two: The Criminalization Decision

A. Justification for Punishment

– Deterrence- imposing penalty on the offender may cause them to fear penalty for future crime and thus deter them from committing them

– Incapacitation- punishment often involves restriction to offenders liberty thus making it virtually impossible for them to engage in criminal behavior during restriction

– Treatment- punishment allows authorities to treat and rehabilitate offender

– Retribution- the commission of past offenses itself justifies punishment rests solely on the notion that that an offender does was wrong

B. Costs v Benefits

1. Benefits- the benefits gained from making conduct criminal turn to the extent to which the social interest justify criminalization which is furthered

2. Costs- the cost of criminalization are reflected in terms of impact upon those who commit the acts

Conclusion: Punishment is the final and complete word in criminal law. It is when the offender has gone through the court process and the jury has reached a determined the guilt of the defendant. When this occurs there are certain costs and benefits of putting a defendant behind bars. Usually society stays safe from the offender reoffending by placing restraint on the liberty of the offender. Through deterrence, incapacitation, rehabilitation, and retribution forms of punishment; the social world frees itself from the weight of criminal activity.

Chapter Three: Basic Legal Limit upon Criminal Law

A. Constitutional Right to Privacy

– Certain conduct is protected by the right of privacy and persons may not be convicted of a crime for engaging in protected conduct

– The following examples include the right to privacy:

(i) Contraceptive Information

(ii) Private Possession of Obscenity

(iii) Private Participation of Homosexual Activity

B. Due Process Prohibition Against Vagueness

– A criminal statute is vague if it fails to define the offenses with definiteness

(i) So that ordinary people can understand

(ii) So as to discourage arbitrary and discrimination

C. Cruel and Unusual Punishment

– Some punishment are so inherently barbaric or degrading and therefore disproportionate to defendants

– Some penalties are not inherently cruel and unusual but are prohibited because they are inherently disproportionate to the defendants conduct

– The death penalty is not inherently excessive and if adhered to the proper procedure may be carried out

– In some cases the death penalty does not adhered to the 8th amendment and may not be carried out (Dix, 2016)

D. Multiple Liability for Identical or Related Criminal Acts

– Criminal defendants may incur overlapping liability in several ways

(i) The same act constitutes several crimes

(ii) Different acts constituting different crimes may be committed closely together and for related reasons

(iii) Differently acts committed closely together and perhaps for related reasons may be processed as several commissions for the same crime

Conclusion: Criminal statutes need to be clear in order for people to obey the law. If they are not clear and the laymen could not understand them, how ae they to obey the law and know what or what not to do? As far as vagueness is concerned there are certain acts proscribed by law and certain act not. However, some punishments are so unusual as to not fit the crime or the defendants conduct. When this occurs the punishment is determined to be cruel and unusual. According to the 8th amendment cruel and usual punishment is prohibited by law. Some states have even gone as far as to ban certain types of punishments because they are too barbaric.

Chapter Four: Elements of Crime

A. Identifying, Distinguishing, and categorizing elements of crime

– Elements of crimes may be underlined into four categories:

(i) Act- act of omission or the part where the defendant does something

(ii) Results- some proof that a result occurred on the part of the defendant

(iii) Circumstance- some circumstance existed at the time of the defendants conduct

(iv) Mens Rea- defendant have consciously desired or have been aware of the certain matters of the crime

B. Criminal Acts- Actus Reus

– To be convicted of a crime defendant must have completed some criminal act

– If not act is required, punishment would be imposed on the basis of mere intent

– The act required to support conviction varies with the given crime itself it may be one of the commission affirmatively to do something or omission failing to do something

– Act or omission must demonstrate that the defendant made a conscious volitional movement:

(i) Movement-physical movement of defendant’s body

(ii) Act must be volitional- physical movement must be conscious

– Acts of omission- must be one of the defendant failure to act

(i) Defendant was under a legal duty to act

(ii) Defendant had necessary knowledge

(ii) It would have been possible for the defendant to act (Dix, 2016)

C. Attendant Circumstance

– Proof of certain circumstances that existed at the time of the act in question

– Attendant circumstances differ from results required by the crime in that the circumstances need not have been caused by the defendants conduct

– The defendant must have been aware of the circumstances existed in the crime

D. Criminal State of Mind- Mens Rea

– Crimes generally require Mens Rea- culpable mental state- what the defendant was actually thinking when engaged in the crime

– There are two basic reasons for Mens Rea:

(i) Demonstrates moral culpability

(ii) Filters out those dangerous to society

– Some of the courts decisions suggest that minimal awareness of the crime is required for criminal liability

E. Concurrence of Actus Reus and Mens Rea

– There must be some co-occurrence of the actus reus and mens reus this means the act or result must be attributed to the culpable state of mind

F. Causation

– The prosecution must prove that the defendants conduct was the legal cause of the result

– Causation is direct if the defendant acts causes the result without the involvement of any intervening factors or cause

Conclusion: There are four components of a crime: Act, result, circumstance, and mens rea. The two most important elements are the criminal act itself and subsequent mens rea of the crime. The act is the failure to obey the proscribe law or the acting out in a criminal act blatantly. A bodily movement by the defendant that makes a crime be committed or the act of omission failing to act in accordance with law. Anyway you put it the act must result in the breaking of a law. The second most important aspect of the crime is the mens rea or the intent of the defendant when he commits the crime. The defendant must be aware that the end result of the crime was likely to occur from his actions. When you have the act and the mens rea you will find the end result of the criminal act and the circumstances leading up to the criminal act.

Chapter Five: Scope of Criminal Liability

A. – liability for a crime is not limited to the person who actually commits the proscribed act

– Liability extends to anyone who has encouraged or assisted the perpetrator in the crime

– Parties to a crime are classified as

(i) Parties to felonies-principal in the first degree those who perpetrate crimes by their own acts

(ii) Principal in the Second Degree- those who either invite or abet the commission of the crime and where present at the commission

(iii) Accessory before the fact- those who invite or abet but where not present at the act

(iii) Accessory after the fact- these who assist others and hinder the prosecution and conviction of the perpetrators (Dix, 2016)

– In accordance with mens rea the abettor must act with purpose

– Under the model penal code, and accomplice may withdraw and avoid liability if:

(i) Wholly depriving his prior assistance with effectiveness

(ii) Providing timely warning to law enforcement authorities

(iii) Making proper effort to prevent commission of crime

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Sources of criminal law. (2019, Mar 20). Retrieved from