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CHAPTER TWO

CHAPTER TWO. FOUNDATIONS AND FUNCTIONS OF LAW. Legislative Role. Provides funding for criminal justice agencies Creates criminal laws Determines sentencing guidelines. The Development of Law. Pre-Historical Era (Earliest History-2000 B.C.) Societies based upon clans, tribes, or kinship

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CHAPTER TWO

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  1. CHAPTER TWO FOUNDATIONS AND FUNCTIONS OF LAW

  2. Legislative Role • Provides funding for criminal justice agencies • Creates criminal laws • Determines sentencing guidelines

  3. The Development of Law • Pre-Historical Era (Earliest History-2000 B.C.) • Societies based upon clans, tribes, or kinship • Customary Laws based upon social norms • Informal but effective law enforcement • Chiefs or elders served as judges • Use of Irrational justice • Reliance on religious, ethical, and mystical considerations

  4. The Development of Law • Early Historical Era (2000 B.C.-1000 A.D.) • Development of Written Codes • Egyptians, Babylonians, Hebrews • Greeks and Romans • Significance of Early Historical Legal Systems • Establishment of written codes • Emergence of different roles in the legal system • Great Influence on the legal systems of Europe and the U.S. • Influence of Canon Law (church law) on legal systems

  5. The Development of Law • Modern Era (1000 A.D.-Present) • Renaissance (1300s to 1600s) • Age of Enlightenment (1700s) • Reemergence of natural law • Belief that there is a divine source of law higher than any other • Absolute and unchangeable law that is applicable to all people

  6. Typologies of Law • Penal Law • Criminal actions that a society prohibits • Compensatory Law • Civil law dispute among private individuals • Therapeutic Law • Focus on helping and treating an offender’s criminal behavior • Conciliatory Law • Focus on resolving conflict and providing a winning outcome for both parties

  7. Civil Law Legal Systems • Code law systems • Developed from Roman and Napoleonic Codes • Features • No judge-made law • Emphasis on the rights of the victimized community • All laws are written in a complete code • Inquisitorial legal system • Decisions by judicial panels

  8. Common Law Legal Systems • Broad ruling documents are interpreted by judicial review • Judicial rulings are considered a source of law • Emphasis on the rights of the accused • Adversarial legal system • Decisions by juries

  9. Civil and Criminal Law • Civil Law • Disputes between private parties (plaintiff and defendant) • Standard of persuasion is Preponderance of the Evidence • Both parties may be at fault (contributory negligence) • Attorneys may represent a client on a contingency fee • Sanctions include monetary damages and injunctions • Criminal Law • Offenses against society (prosecutor brings the case on behalf of the government • Standard of persuasion is Beyond a Reasonable Doubt • Defendant has the right to counsel • Sanctions include fines, probation, or jail/prison time

  10. Substantive and Procedural Law • Substantive Law • Defines the acts that are crimes • Defines the penalties for criminal acts • Procedural Law • Defines how a case must be processed • Attorney appointment • Jury selection • Evidence admissibility • Criminal investigation • Sentencing

  11. Sources of Law • Common Law • Based upon a community’s norms and values • Applied through stare decisis, or application of prior judicial rulings to similar cases • Constitutional Law • All other laws must comport with the U.S. Constitution • State laws must also comport with that state’s Constitution • Constitutionality determined by appellate judges

  12. Sources of Law • Statutory Law • Written laws enacted by legislative bodies • Encompasses almost all U.S. criminal laws • Case Law • Judges create law by deciding constitutional law issues • Judicial policymaking • Administrative Law • Federal and state agency regulations have the force of law • Published in the Federal Register

  13. Crime Classifications • Degree of Evilness • Mala in se: action that is evil in and of itself • Mala prohibita: action that is wrong because of a law prohibiting it • Offense Seriousness • Felonies • most serious offenses • include possibility of imprisonment for over one year • Misdemeanors • lesser offenses • include possibility of imprisonment for less that one year • Petty Misdemeanors • potential sentence of fines only

  14. Elements of a CrimeCorpus delicti: “body of a crime” • Mensrea • Criminal intent or motivation • Actusreus • Criminal act • Does not always have to be completed • Concurrence • Mensreaand actusreus must be present at the same time • Defendant must have criminal intent and must act upon that intent

  15. Inchoate Offenses • Conspiracy • Two or more people form an agreement to commit a crime, and • commit an overt act toward the completion of the crime • Solicitation • One person tries to persuade another to commit a crime on their behalf • Attempt • A crime is started, but is not completed

  16. Defenses to Crime • Justification Defenses • The defendant’s actions were not legally wrong • Excuse Defenses • The defendant’s actions were legally wrong, but an extenuating circumstance excuses the action

  17. Justification Defenses • Self-defense • A person may use necessary force in an attack • The person cannot be the initial aggressor • Necessity • A person may commit a criminal act to save himself from forces of nature • Example: hikers break into a cabin to save themselves from death in a snowstorm

  18. Excuse Defenses • Duress • A person commits a crime due to threat of bodily harm • Entrapment • A person commits a crime that was initiated by another person • The person who committed the crime would not have done so otherwise • Infancy • A person who committed a crime was too young to form criminal intent • Minimum age is set by statute • Insanity • A person was unable to form criminal intent due to mental illness • Intoxication • A person was unable to form criminal intent due to involuntary intoxication • Alibi • A person could not have committed a crime because they were somewhere else

  19. Types of Crime • Classified by the FBI’s Uniform Crime Reports • Crimes against Persons • Crimes against Property • Crimes against Public Order • Other Offenses

  20. Crimes Against Persons • Aggravated Assault • Murder and Nonnegligent Manslaughter • Forcible Rape • Robbery

  21. Crimes Against Property • Larceny/Theft • Burglary • Motor Vehicle Theft • Arson

  22. Crimes Against Public Order • Breach of the Peace • Fighting/Affray • Disorderly Conduct • Public Drunkenness • Unlawful Assembly • Carrying Weapons • Obstructing Traffic • Animal Abuse

  23. Other Offenses • Crimes against Public Welfare • Crimes against Public Morality • White Collar/Corporate Crimes • Modern Crimes • Crimes Against the Government

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