Chapter 4 notes

Law: a rule of conduct, generally found enacted in the form of a statute, that proscribes or mandates
certain forms of behavior.

What Do laws Do?

• Laws maintain order in society.

• Laws regulate human interaction.

• Laws enforce moral beliefs.

• Laws define the economic environment.

• Laws enhance predictability.

• Laws support the powerful.

• Laws promote orderly social change.

• Laws sustain individual rights.

• Laws redress wrongs.

• Laws identify wrongdoers.

• Laws mandate punishment and retribution.

Statutory law: written or codified law; the “law on the books,” as enacted by a government body or
agency having the power to make laws.

Penal code: the written, organized, and compiled form of the criminal laws of a jurisdiction.

Case law The body of judicial precedent, historically built on legal reasoning and past interpretations of
statutory laws, that serves as a guide to decision making, especially in the courts. The rule of law has
been called the greatest political achievement of our culture.

Common law: law originating from usage and custom rather than from written statutes. The term refers
to an unwritten body of judicial opinion, originally developed by English courts, that is based on
nonstatutory customs, traditions, and precedents that help guide judicial decision making.

Rule of law: the maxim that an orderly society must be governed by established principles and known
codes that are applied uniformly and fairly to all of its members.

Jurisprudence: the philosophy of law. Also, the science and study of the law.

Types of laws:

Criminal law: the body of rules and regulations that define and specify the nature of and punishments
for offenses of a public nature or for wrongs committed against the state or society. Also called penal
law.

Substantive criminal law The part of the law that defines crimes and specifies punishments.
Procedural law: the part of the law that specifies the methods to be used in enforcing substantive law

Civil law: the branch of modern law that governs relationships between parties.

Tort: a wrongful act, damage, or injury not involving a breach of contract. Also, a private or civil wrong
or injury.

Precedent: a legal principle that ensures that previous judicial decisions are authoritatively considered
and incorporated into future cases.

Stare decisis: a legal principle requiring that, in subsequent cases on similar issues of law and fact, courts
be bound by their own earlier decisions and by those of higher courts having jurisdiction over them

General categories of crimes

Felony: a criminal offense punishable by death or by incarceration in a prison facility for at least one
year.

Misdemeanor: an offense punishable by incarceration, usually in a local confinement facility, for a

period whose upper limit is prescribed by statute in a given jurisdiction, typically one year or less.

Offense: a violation of the criminal law. Also, in some jurisdictions, a minor crime, such as jaywalking,
that is sometimes described as ticketable.

Infraction: a minor violation of state statute or local ordinance punishable by a fine or other penalty or
by a specified, usually limited, term of incarceration.

Treason: a U.S. citizen’s actions to help a foreign government overthrow, make war against, or seriously
injure the United States. Also, the attempt to overthrow the government of the society of which one is a
member.

Espionage: the “gathering, transmitting, or losing”ii of information related to the national defense in
such a manner that the information becomes available to enemies of the United States and may be used
to their advantage.

Inchoate offense: an offense not yet completed. Also, an offense that consists of an action or conduct
that is a step toward the intended commission of another offense.

Actus reus: an act in violation of the law. Also, a guilty act.

Conventional legal wisdom holds that the essence of crime consists of three conjoined elements: (1) the
criminal act, which in legal parlance is termed the actus reus; (2) a culpable mental state, or mens rea;
and (3) a concurrence of the two.
Reckless behavior: activity that increases the risk of harm.

Criminal negligence: behavior in which a person fails to reasonably perceive the substantial and
unjustifiable risks of dangerous consequences.

Motive A person’s reason for committing a crime.

strict liability: liability without fault or intention. Strict liability offenses do not require mens rea.

Concurrence: the coexistence of (1) an act in violation of the law, and (2) a culpable mental state.

Legal cause: a legally recognizable cause. A legal cause must be demonstrated in court in order to hold
an individual criminally liable for causing harm.

In the United States, for example, the crime of first-degree murder involves four quite distinct elements:
1. An unlawful killing

2. Of a human being

3. Intentionally

4. With planning (or “malice aforethought”)

Types of defenses to a criminal charge

Defense (to a criminal charge) Evidence and arguments offered by a defendant and his or her attorney
to show why the defendant should not be held liable for a criminal charge.

Alibi: a statement or contention by an individual charged with a crime that he or she was so distant
when the crime was committed, or so engaged in other provable activities, that his or her participation
in the commission of that crime was impossible.

Justification: a legal defense in which the defendant admits to committing the act in question but claims
it was necessary in order to avoid some greater evil.

Excuse: a legal defense in which the defendant claims that some personal condition or circumstance at
the time of the act was such that he or she should not be held accountable under the criminal law.

Procedural defense: a defense that claims that the defendant was in some significant way discriminated
against in the justice process or that some important aspect of official procedure was not properly
followed in the investigation or prosecution of the crime charged.

Self-defense: the protection of oneself or of one’s property from unlawful injury or from the immediate
risk of unlawful injury.

Reasonable force: a degree of force that is appropriate in a given situation and is not excessive. Also, the
minimum degree of force necessary to protect oneself, one’s property

Alter ego rule: In some jurisdictions, a rule of law that holds that a person can defend a third party only
under circumstances and only to the degree that the third party could legally act on his or her own
behalf.
The retreat rule referred to earlier, which requires a person under attack to retreat when possible
before resorting to deadly force.

Necessity: the claim that some illegal action was needed to prevent an even greater harm, is a useful
defense in cases that do not involve serious bodily harm

Consent: the defense of consent claims that whatever harm was done occurred only after the injured
person gave his or her permission for the behavior in question.

Types of excuses:

The defense of duress depends on an understanding of the situation. Duress has been defined as “any
unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a
manner he or she otherwise would not (or would).

insanity defense: a legal defense based on claims of mental illness or mental incapacity

Unconsciousness: a very rarely used excuse is that of unconsciousness. An individual cannot be held
responsible for anything he or she does while unconscious.

Provocation: recognizes that a person can be emotionally enraged by another who intends to elicit just
such a reaction.

Insanity: from the point of view of the criminal law, insanity has a legal definition and not a medical one.

Types of insanity defenses:

M’Naghten: rule A rule for determining insanity, which asks whether the defendant knew what he or she
was doing or whether the defendant knew that what he or she was doing was wrong

Irresistible Impulse: defendants clearly knew what they were doing, and they knew it was wrong, their
defense that they couldn’t stop doing what they knew was wrong. Such people are said to suffer from
an irresistible impulse

The Durham rule: states that a person is not criminally responsible for his or her behavior if the person’s
illegal actions were the result of some mental disease or defect.

The Substantial-Capacity test: suggests that insanity should be defined as the lack of a substantial
capacity to control one’s behavior.

Temporary Insanity: the defendant is not guilty of the criminal action by virtue of having been insane at
the time.

Diminished capacity: a defense based on claims of a mental condition that may be insufficient to
exonerate the defendant of guilt but that may be relevant to specific mental elements of certain crimes
or degrees of crime.

Incompetent to stand trial: In criminal proceedings, a finding by a court that, as a result of mental illness,
defect, or disability, a defendant is incapable of understanding the nature of the charges and
proceedings against him or her.
Entrapment An improper or illegal inducement to crime by agents of law enforcement. Also, a defense
that may be raised when such inducements have occurred. a handcuffed man in police custody walks
away from the female police officer who arrested him while posing as a prostitute in Pomona, California.
How might entrapment be a defense in a case like this? How can police avoid claims of entrapment.

Double jeopardy: a common law and constitutional prohibition against a second trial for the same
offense.

Selective Prosecution: the procedural defense of selective prosecution is based on the Fourteenth
Amendment’s guarantee of “equal protection of the laws.”? This defense may be available where two or
more individuals are suspected of criminal involvement, but not all are actively prosecuted

The Sixth Amendment to the Constitution guarantees a right to a speedy trial.

 References

Schmalleger, F. J. (2017). Criminal justice today (14th ed.). Pearson.