History of Criminal Law

1. History of Criminal Law The first civilizations generally did not distinguish between civil law and criminal law. The first written codes of law were designed by the Sumerians. Around 2100-2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text has been discovered: the Code of Ur-Nammu although an earlier code of Urukagina of Lagash ( 2380-2360 BC ) is also known to have existed. Another important early code was the Code Hammurabi, which formed the core of Babylonian law. Only fragments of the early criminal laws of Ancient Greece have survived, e.g. those of Solon and Draco.

2. Cont…………… • In Roman law, Gaius's Commentaries on the Twelve Tables also conflated the civil and criminal aspects, treating theft (furtum) as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation or damages. The criminal law of imperial Rome is collected in Books 47-48 of the Digest.[3] After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law in European law from then until the present time.

3. Cont……………. • The first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scolasticism (see Alfonso de Castro), when the theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law. The development of the state dispensing justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law had formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.

4. What Is Criminal law? • Criminal law refers to:- -The branch of modern law that concerns itself with offenses committed against society, its members, their property, and the social order. -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. • Penal code refers to: The written, organized, and compiled form of the criminal laws of a jurisdiction.

5. What Is Crime? • An intentional act in violation of the criminal law committed without defense or excuse, and penalized by the state. • An act in violation • Of a criminal law for which • A punishment is prescribed; • The person committing this action must have intended to do so • And to have done so without any legally acceptable defenses or justifications

6. Cont….. • Mala in se: Crimes that are considered bad in of themselves • Mala Prohibita: Crimes that are considered crimes because we have placed restrictions on them

7. Cont….. • MALA INSE VS MALA PROHABITA: While crimes are typically broken into degrees or classes to punish appropriately, all offenses can be divided into 'mala in se' and 'mala prohibita' laws. Both are Latin legal terms, mala in se meaning crimes that are thought to be inherently evil or morally wrong, and thus will be widely regarded as crimes regardless of jurisdiction. • Mala in se offenses are felonies, property crimes, immoral acts and corrupt acts by public officials.

8. Cont……………. • Mala prohibita, on the other hand, refers to offenses that do not have wrongfulness associated with them. Parking in a restricted area, driving the wrong way down a one-way street, jaywalking or unlicensed fishing are examples of acts that are prohibited by statute, but without which are not considered wrong. Mala prohibita statutes are usually imposed strictly, as there does not need to be mens rea component for punishment under those offenses, just the act itself. For this reason, it can be argued that offenses that are mala prohibita are not really crimes at all.

9. Cont….. The Need for Criminal Law: • helps to keep order in society • penalties help to deter (prevent) people from committing crimes • emphasizes prevention and penalties • does not place much emphasis on compensating victims for the losses suffered because of a crime

10. The Nature of Criminal Law • parliament decides what is a crime and regularly passes laws to change the Criminal Code • Criminal Code reflects the values of society • reform of the Criminal Code usually reflects a shift in values and may occur because of public pressure

11. Objective of criminal law • Criminal law is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction.

12. Cont………. • Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

13. Limitations on the Criminal Law 1. Substantive due process: There are limits to what conduct the law may seek to prohibit 2. Forbids passage of laws that infringe on the rights of individuals • free speech • assembly 3. Over- breadth doctrine: Laws are unconstitutional when they fail to narrowly define the specific behavior to be restricted

14. Cont………… 4.Void for vagueness: laws are unconstitutional if they fail to clearly define the prohibited act and the punishment in advance 5. Fair notice: letting people know what is and is not permitted 6. Must not restrict due process: laws must be enforced fairly and non-arbitrarily 7. Must not restrict equal protection: laws cannot restrict the rights of members of suspect classifications

15. Cont………… 8.Cruel and unusual punishment: punishments must be proportional to the crime 9.Ex post facto laws: people cannot be penalized for behavior which was not illegal at the time they acted; penalties cannot be increased after the crime has been committed • ex post facto laws do apply retroactively if they are beneficial 10.Bills of attainder: laws that impose punishment without trial

16. Elements of Criminal Offenses • Elements must be present for criminal liability to attach • Actus reus • Mens rea • Concurrence • Causation • Harm • Principle of Legality • Principle of Punishment

17. Actus Reus (Criminal Act) • A:An act in violation of the law. Also, a guilty act. • The guilty act; three forms: • Voluntary bodily movements • An omission in the face of a duty to act • failure to perform a legal duty • Threatening to act. Attempting criminal activity • Conspiring to commit a crime; and failure to prevent serious harm when a special relationship exists • Possession • if the person has some knowledge that their possession is illegal

18. Mens Rea (Criminal Intent) • Mens rea refers to: The state of mind that accompanies a criminal act. Also, a guilty mind. • The guilty mind: Elements of purpose,knowledge, negligence, recklessness • Purposefully committed a criminal act • Knows of the illegality of the act • Criminal negligence is the deviation of what a reasonable person would have done. • Criminal reckless is “consciously disregarding a substantial and unjustifiable risk.

19. Cont………….. • Reckless behavior refers to: Activity that increases the risk of harm. • Criminal negligence refers to: Behavior in which a person fails to reasonably perceive substantial and unjustifiable risks of dangerous consequences. • Motive refers to A person’s reason for committing a crime. For most crimes there is a motive and it has to be accompanied by a guilty state of mind

20. Concurrence • The union of the criminal act and the criminal intent (actus reus and mens rea) • Concurrence refers to: • The coexistence of (1) an act in violation of the law and (2) a culpable mental state.

21. Causation • The criminal act is the act that is the cause of the harm Two types: 1. Factual cause: “but for” the actor’s conduct the harm would not have occurred. In other word: Proximate cause---”but for” the actions of the defendant, the harm would not have occurred. 2. Legal cause: consequences of an act which are not reasonably foreseeable)predictable) to the actor (intervening causes) relieve the actor of some degree of criminal liability. Liability differences lead to different penalties

22. Harm • The result of the act, the injury to another or to society • Harm to a person or property • The degree of the harm done – stole $5000.00 rather than $500.00 • Hit a person in the back of their head with a tire iron --He/she dies vs. --He/she is knocked unconscious

23. General Considerations • Crimes are made up of elements • All elements of a crime must be proven in court for a person to be convicted of that crime • Example – Elements of Robbery • 1. the taking and carrying away of goods or money • 2. the taking from someone’s person • 3. use of force or intimidation

24. Cont…………. • Element (of a crime) refers to: • In a specific crime, one of the essential features of that crime, as specified by law or statute. • Example: Murder • An unlawful killing • Of a human being • Intentionally • With planning (or “malice aforethought”)

25. Strict Liability and Mens Rea • Strict liability refers to: Liability without fault or intention. Strict liability offenses do not require mens rea. Strict liability: imposes accountability without proof of criminal intent in situations where society deems it fair to do so. The classic example of a strict liability law is that a cashier does not need to know that he is selling alcohol to a minor to be found guilty Based on the presumption that causing harm is in itself blameworthy. Other Example - Traffic violations - I need not know what the speed limit was; or ---that I was not paying any attention and have no idea how fast I was going; or, ---that my speedometer was off.

26. Parties to Crimes • There are also four types of parties to crimes: 1. A principal: is the person who commits the crime. 2. Accomplice:is someone who helps another person commit a crime 3. An accessory before the fact: is someone who helps plan a crime or orders the crime but is not there at the time the crime is committed. 4. An accessory after the fact: is a person that helps the principal or an accomplice avoid being captured or escape.

27. The Corpus Delicti of a Crime • Corpus delicti refers to: The facts that show that a crime has occurred. • A person cannot be tried for a crime unless it can first be shown that the offense has occurred. • That a certain result has been produced. • That a person is criminally responsible for its production.

28. Preliminary Crimes • Preliminary crimes, are behaviors that happen before a crime is committed but are a crime themselves: • certain behaviors are take place before the commission of a crime, but are crimes themselves • Solicitation • Conspiracy • Attempt • All of these behaviors can be punished even if the planned crime never occurred

29. Solicitation

30. Solicitation • Most states make it illegal to solicit (ask, command, urge, or advise) another person to commit a crime • Even if the person refuses to commit the crime, soliciting someone is still a crime.

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32. Conspiracy • Conspiracy is an agreement between two or more persons to commit a crime • Making conspiracy illegal is meant to prevent other crimes and to strike against criminal activity by groups

33. Attempt • In most states an attempt to commit a crime is a crime itself • To be guilty of the crime of attempt one must both intended to commit a crime and taken some substantial step toward committing the crime

34. General Categories of Crime • Felonies • Misdemeanors • Treason and espionage • Inchoate offenses

35. Felonies • Felony refers to: A criminal offense punishable by death or by incarceration in a prison facility for at least one year. • There is a move to a scheme of classifying the seriousness of felonies • Crime classified as a felony in one part of the country may be a misdemeanor in another.

36. Misdemeanors(misdhimeenar) • Misdemeanors refer to: An offense punishable by imprisonment (, 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. Or a crime that is not very serious Most receive suspended sentences involving a fine and supervised probation. Normally, an officer cannot arrest for a misdemeanor unless it was committed in the officer’s presence.

37. Offenses • Offense refers to: A violation of the criminal law. • Infraction refers to: 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.

38. Treason and Espionage(esbiinooj) • Treason refers to: the crime of being disloyal to your country or its government, especially by helping its enemies or trying to remove the government using violence. A Somali’ citizen’s actions to help a foreign government overthrow, make war against, or seriously injure the Somali people.” Espionagerefers to: The “gathering, transmitting, or losing” of information related to the national defense in such a manner that the information becomes available to enemies of the Somalia and may be used to their advantage, or (the activity of secretly finding out secret information and giving it to a country's enemies=spying).

39. Inchoate Offenses • Inchoate offense refers to: 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. • Conspiracy • Attempt • Solicitation

40. Types of Defenses to a Criminal Charge • Defense is a response by the defendant which allows them to avoid criminal liability • Defense (to a criminal charge) refers to: 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. Categories of defense: • Alibi • Excuses • Justification • Procedural defenses

41. Types of Defenses to a Criminal liability A. ALIBI Alibi refers to: 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. An alibi is supported by witnesses and documentation – hotel receipts, eyewitness identification • Affirmative defenses: defendant admits that they committed the act, but deny criminal liability • Shifts both the burden of production and persuasion to the defense (preponderance of the evidence)

42. B. JUSTIFICATIONS Justification refers to: 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. Example: a firefighter who sets a “control” fire to create a firebreak to save the town; The setting of the fire is arson, but the intent was to save the town. Categories of justifications: • Self-defense • Consent • Execution of public duties

43. 1 . Self-Defense • Use of force to repel an imminent, unprovoked attack, in which they reasonably believed that they were about to be seriously injured • May only use as much force as is necessary • Retreat doctrine: a person must retreat rather than use deadly force if doing so is possible • Castle doctrine: persons attacked in their home need not retreat • Can also apply to the defense of others and property

44. Cont………… • You must use only the force necessary to protect yourself, your dwelling, your property, or to prevent a crime. • Deadly force can only be used to protect you from imminent death or bodily harm. • You must not have provoked the attack, and there must be no alternative. • You must have a reasonable belief that death or bodily harm will otherwise occur.

45. 2. Consent • Persons may consent to suffer what otherwise would be an objectionable injury • Consent must be voluntary, knowing, and intelligent 3. Execution of Public Duties Agents of the state are permitted to use reasonable force in the lawful execution of their duties

46. C. EXCUSES • Excuses – the person who engaged in the unlawful behavior was, at the time, not legally responsible for his/her actions • Recognized excuses include: • Duress - Involuntary • Intoxication • Age - Unconsciousness • Mistake - Provocation • Insanity -Diminished capacity • Mental incompetence • Necessity

47. 1. Duress • Situations involving the threat of serious, imminent harm to oneself, where the act is less serious than the threatened harm • The wrongful threat of one person induces another person to perform an act that she or he would otherwise not perform. • you help the friend to commit a robbery as he threatens to kill you and your family. • The threat must be immediate and inescapable

48. 2. Intoxication • Voluntary and Involuntary • Voluntary never leads to acquittal; may only mitigate • Involuntary may work as a defense as the person is not responsible for their actions 3. Age (infancy): Persons below a certain age lack the capability to form mens rea. Under a certain statutory definition you do not meet the maturity level to make the decisions necessary to commit a crime.

49. 4. Insanity • Insanity is a legal defense based on claims of mental illness or mental incapacity. • - 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: • The defendant knew what he or she was doing and that it was wrong, but could not stop the act.

50. Cont…… • Durham rule: 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. • Substantial capacity test • Found in the Model Penal Code, it suggests that insanity should be defined as the lack of a substantial capacity to control one’s behavior. • Brawner rule:Places responsibility for deciding insanity squarely with the jury.