Chapter 1 Introduction to Criminal Law

Parties in Civil Litigation

In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or some sort of performance. Anyone who is injured—an individual, corporation, or other business entity—can sue civilly. In a civil litigation matter, the injured party that is suing is called the plaintiffThe individual suing in a civil litigation matter.. A plaintiff must hire and pay for an attorney or represent himself or herself. Hiring an attorney is one of the many costs of litigation and should be carefully contemplated before jumping into a lawsuit.

The alleged wrongdoer and the person or entity being sued are called the defendantThe alleged wrongdoer in a civil litigation matter and a criminal prosecution.. While the term plaintiff is always associated with civil litigation, the wrongdoer is called a defendant in both civil litigation and a criminal prosecution, so this can be confusing. The defendant can be any person or thing that has caused harm, including an individual, corporation, or other business entity. A defendant in a civil litigation matter must hire and pay for an attorney even if that defendant did nothing wrong. The right to a free attorney does not apply in civil litigation, so a defendant who cannot afford an attorney must represent himself or herself.

Goal of Civil Litigation

The goal of civil litigation is to compensate the plaintiff for any injuries and to put the plaintiff back in the position that person held before the injury occurred. This goal produces interesting results. It occasionally creates liability or an obligation to pay when there is no fault on behalf of the defendant. The goal is to make the plaintiff whole, not to punish, so fault is not really an issue. If the defendant has the resources to pay, sometimes the law requires the defendant to pay so that society does not bear the cost of the plaintiff’s injury.

A defendant may be liable without fault in two situations. First, the law that the defendant violated may not require fault. Usually, this is referred to as strict liabilityLiability without intent.. Strict liability torts do not require fault because they do not include an intent component. Strict liability and other intent issues are discussed in detail in Chapter 4 "The Elements of a Crime". Another situation where the defendant may be liable without fault is if the defendant did not actually commit any act but is associated with the acting defendant through a special relationship. The policy of holding a separate entity or individual liable for the defendant’s action is called vicarious liabilityThe transfer of a defendant’s liability based upon a special relationship.. An example of vicarious liability is employer-employee liability, also referred to as respondeat superiorA doctrine that holds the employer civilly liable for an employee’s conduct while on the job.. If an employee injures a plaintiff while on the job, the employer may be liable for the plaintiff’s injuries, whether or not the employer is at fault. Clearly, between the employer and the employee, the employer generally has the better ability to pay.

Example of Respondeat Superior

Chris begins the first day at his new job as a cashier at a local McDonald’s restaurant. Chris attempts to multitask and pour hot coffee while simultaneously handing out change. He loses his grip on the coffee pot and spills steaming-hot coffee on his customer Geoff’s hand. In this case, Geoff can sue McDonald’s and Chris if he sustains injuries. McDonald’s is not technically at fault, but it may be liable for Geoff’s injuries under a theory of respondeat superior.

Harm Requirement

The goal of civil litigation is to compensate the plaintiff for injuries, so the plaintiff must be a bona fide victim that can prove harm. If there is no evidence of harm, the plaintiff has no basis for the civil litigation matter. An example would be when a defendant rear-ends a plaintiff in an automobile accident without causing damage to the vehicle (property damage) or physical injury. Even if the defendant is at fault for the automobile accident, the plaintiff cannot sue because the plaintiff does not need compensation for any injuries or losses.

Damages

Often the plaintiff sues the defendant for money rather than a different, performance-oriented remedy. In a civil litigation matter, any money the court awards to the plaintiff is called damagesMoney the court awards the plaintiff in a civil litigation matter.. Several kinds of damages may be appropriate. The plaintiff can sue for compensatory damagesDamages that compensate the plaintiff for injury., which compensate for injuries, costsDamages that reimburse the plaintiff for money spent on the civil lawsuit., which repay the lawsuit expenses, and in some cases, punitive damagesDamages designed to punish the defendant.. Punitive damages, also referred to as exemplary damages, are not designed to compensate the plaintiff but instead focus on punishing the defendant for causing the injury.BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), accessed February 13, 2010, http://www.law.cornell.edu/supct/html/94-896.ZO.html.

Parties in a Criminal Prosecution

The government institutes the criminal prosecution, rather than an individual plaintiff. If the defendant commits a federal crime, the United States of America pursues the criminal prosecution. If the defendant commits a state crime, the state government, often called the People of the State pursues the criminal prosecution. As in a civil lawsuit, the alleged wrongdoer is called the defendant and can be an individual, corporation, or other business entity.

The attorney who represents the government controls the criminal prosecution. In a federal criminal prosecution, this is the United States AttorneyThe attorney representing the federal government in a federal criminal prosecution..United States Department of Justice, “United States Attorneys,” accessed February 15, 2010, http://www.justice.gov/usao. In a state criminal prosecution, this is generally a state prosecutorThe attorney representing the state government in a state criminal prosecution. or a district attorney.“United States’ Prosecuting Attorneys,” Galaxy.com website, accessed February 15, 2010, http://www.galaxy.com/dir968533/United_States.htm. A state prosecutor works for the state but is typically an elected official who represents the county where the defendant allegedly committed the crime.

Applicability of the Constitution in a Criminal Prosecution

The defendant in a criminal prosecution can be represented by a private attorney or a free attorney paid for by the state or federal government if he or she is unable to afford attorney’s fees and facing incarceration.Alabama v. Shelton, 535 U.S. 654 (2002), accessed August 16, 2010, http://www.law.cornell.edu/supct/html/00-1214.ZO.html. Attorneys provided by the government are called public defendersA government attorney who represents criminal defendants who cannot afford attorney’s fees and are facing incarceration..18 U.S.C. § 3006A, accessed February 15, 2010, http://www.law.cornell.edu/uscode/18/3006A.html. This is a significant difference from a civil litigation matter, where both the plaintiff and the defendant must hire and pay for their own private attorneys. The court appoints a free attorney to represent the defendant in a criminal prosecution because the Constitution is in effect in any criminal proceeding. The Constitution provides for the assistance of counsel in the Sixth Amendment, so every criminal defendant facing incarceration has the right to legal representation, regardless of wealth.

The presence of the Constitution at every phase of a criminal prosecution changes the proceedings significantly from the civil lawsuit. The criminal defendant receives many constitutional protections, including the right to remain silent, the right to due process of law, the freedom from double jeopardy, and the right to a jury trial, among others.

Goal of a Criminal Prosecution

Another substantial difference between civil litigation and criminal prosecution is the goal. Recall that the goal of civil litigation is to compensate the plaintiff for injuries. In contrast, the goal of a criminal prosecution is to punish the defendant.

One consequence of the goal of punishment in a criminal prosecution is that fault is almost always an element in any criminal proceeding. This is unlike civil litigation, where the ability to pay is a priority consideration. Clearly, it is unfair to punish a defendant who did nothing wrong. This makes criminal law justice oriented and very satisfying for most students.

Injury and a victim are not necessary components of a criminal prosecution because punishment is the objective, and there is no plaintiff. Thus behavior can be criminal even if it is essentially harmless. Society does not condone or pardon conduct simply because it fails to produce a tangible loss.

Examples of Victimless and Harmless Crimes

Steven is angry because his friend Bob broke his skateboard. Steven gets his gun, which has a silencer on it, and puts it in the glove compartment of his car. He then begins driving to Bob’s house. While Steven is driving, he exceeds the speed limit on three different occasions. Steven arrives at Bob’s house and then he hides in the bushes by the mailbox and waits. After an hour, Bob opens the front door and walks to the mailbox. Bob gets his mail, turns around, and begins walking back to the house. Steven shoots at Bob three different times but misses, and the bullets end up landing in the dirt. Bob does not notice the shots because of the silencer.

In this example, Steven has committed several crimes: (1) If Steven does not have a special permit to carry a concealed weapon, putting the gun in his glove compartment is probably a crime in most states. (2) If Steven does not have a special permit to own a silencer for his gun, this is probably a crime in most states. (3) If Steven does not put the gun in a locked container when he transports it, this is probably a crime in most states. (4) Steven committed a crime each time he exceeded the speed limit. (5) Each time Steven shot at Bob and missed, he probably committed the crime of attempted murder or assault with a deadly weapon in most states. Notice that none of the crimes Steven committed caused any discernible harm. However, common sense dictates that Steven should be punished so he does not commit a criminal act in the future that may result in harm.

Figure 1.2 Crack the Code

Example of Government and Private Action

Cora stands on a public sidewalk and criticizes President Obama’s health-care plan. Although other individuals may be annoyed by Cora’s words, the government cannot arrest or criminally prosecute Cora for her speech because the First Amendment of the US Constitution guarantees each individual the right to speak freely. On the other hand, if Cora walks into a Macy’s department store and criticizes the owner of Macy’s, Macy’s could eject Cora immediately. Macy’s and its personnel are private, not government, and they do not have to abide by the Constitution.

Exceptions to the Constitution

The federal and state constitutions are both written with words that can be subject to more than one interpretation. Thus there are many exceptions to any constitution’s protections. Constitutional protections and exceptions are discussed in detail in Chapter 3 "Constitutional Protections".

For safety and security reasons, we see more exceptions to constitutional protections in public schools and prisons. For example, public schools and prisons can mandate a certain style of dress for the purpose of ensuring safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and prevent prisoners from successfully escaping, the government can constitutionally suppress free speech in these locations.

Superiority of the Constitution

Of the three sources of law, constitutional law is considered the highest and should not be supplanted by either of the other two sources of law. Pursuant to principles of federal supremacy, the federal or US Constitution is the most preeminent source of law, and state constitutions cannot supersede it. Federal constitutional protections and federal supremacy are discussed in Chapter 2 "The Legal System in the United States" and Chapter 3 "Constitutional Protections".

Statutory Law’s Inferiority

Statutory law is inferior to constitutional law, which means that a statute cannot conflict with or attempt to supersede constitutional rights. If a conflict exists between constitutional and statutory law, the courts must resolve the conflict. Courts can invalidate unconstitutional statutes pursuant to their power of judicial review, which is discussed in an upcoming section.

Administrative Laws and Ordinances

Other written and published laws that apply to individuals are administrative lawsWritten, published law that an administrative agency enacts. and ordinancesWritten, published law that a city or county enacts.. Administrative laws and ordinances should not supersede or conflict with statutory law.

Administrative laws are enacted by administrative agenciesA government agency that regulates in a specific area., which are governmental agencies designed to regulate in specific areas. Administrative agencies can be federal or state and contain not only a legislative branch but also an executive (enforcement) branch and judicial (court) branch. The Food and Drug Administration (FDA) is an example of a federal administrative agency. The FDA regulates any food products or drugs produced and marketed in the United States.

Ordinances are similar to statutes, except that cities and counties vote them into law, rather than a state’s legislature or a state’s citizens. Ordinances usually relate to health, safety, or welfare, and violations of them are typically classified as infractions or misdemeanors, rather than felonies. A written law prohibiting jaywalking within a city’s or county’s limits is an example of an ordinance.

Model Penal Code

State criminal laws differ significantly, so in the early 1960s a group of legal scholars, lawyers, and judges who were members of the American Law Institute drafted a set of suggested criminal statutes called the Model Penal CodeSample criminal statutes written by legal scholars, lawyers, and judges.. The intent of the Model Penal Code was to provide a standardized set of criminal statutes that all states could adopt, thus simplifying the diversity effect of the United States’ legal system. While the Model Penal Code has not been universally adopted, a majority of the states have incorporated portions of it into their penal codes, and the Model Penal Code survives as a guideline and focal point for discussion when state legislatures modify their criminal statutes.

English Common Law

In Old England, before the settlement of the United States, case law was the most prevalent source of law. This was in contrast to countries that followed the Roman Law system, which primarily relied on written codes of conduct enacted by legislature. Case law in England was mired in tradition and local customs. Societal principles of law and equity were the guidelines when courts issued their rulings. In an effort to be consistent, English judges made it a policy to follow previous judicial decisions, thereby creating a uniform system of laws throughout the country for the first time. Case law was named common lawCase law of England that migrated to the United States. because it was common to the entire nation.Lloyd Duhaime, “Common Law Definition,” Duhaime.org website, accessed September 26, 2010, http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx.

The English system of jurisprudence made its way to the United States with the original colonists. Initially, the thirteen colonies unanimously adopted common law as the law of the land. All crimes were common-law crimes, and cases determined criminal elements, defenses, and punishment schemes. Gradually, after the Revolutionary War, hostility toward England and modern reform led to the erosion of common-law crimes and a movement toward codification. States began replacing common-law crimes with statutes enacted by state legislatures. Oxford professor Sir William Blackstone’s Commentaries on the Law of England, which interpreted and summarized English common law, became an essential reference as the nation began the process of converting common-law principles into written statutes, ordinances, and penal codes.Lloyd Duhaime, “Common Law Definition,” Duhaime.org website, accessed September 26, 2010, http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx.

Limitations on Common-Law Crimes

In modern society, in many states and the federal government,United States v. Hudson & Goodwin, 11 U.S. 32 (1812), accessed September 24, 2010, http://openjurist.org/11/us/32/the-united-states-v-hudson-and-goodwin. judges cannot create crimes. This violates notions of fairness. Making up a new crime and punishing the defendant for it does not provide consistency or predictability to our legal system. It also violates the principle of legality, a core concept of American criminal justice embodied in this phrase: “Nullum crimen sine lege, nulla poena sine crimen” (No crime without law, no punishment without crime).

In states that do not allow common-law crimes, statutes must define criminal conduct. If no statute exists to criminalize the defendant’s behavior, the defendant cannot be criminally prosecuted, even if the behavior is abhorrent. As the Model Penal Code states, “[n]o conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State” (Model Penal Code § 1.05(1)).

The common law still plays an important role in criminal lawmaking, even though most crimes are now embodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of English common law. Legislatures often create statutes out of former common-law crimes. Judges look to the common law when defining statutory terms, establishing criminal procedure, and creating defenses to crimes. The United States is considered a common-law country. Every state except Louisiana, which is based on the French Civil Code, adopts the common law as the law of the state except where a statute provides otherwise.Legal Definition, “Common Law,” Lectlaw.com website, accessed September 26, 2010, http://www.lectlaw.com/def/c070.htm.

Powerful Nature of Case Law

Generally, if there is a statute on an issue, the statute is superior to case law, just as the Constitution is superior to statutory law. However, judges interpret constitutional and statutory law, making case law a powerful source of law. A judge can interpret a constitution in a way that adds or creates exceptions to its protections. A judge can also interpret a statute in a way that makes it unconstitutional and unenforceable. This is called the power of judicial reviewA court’s power to invalidate a statute as unconstitutional..Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), accessed February 15, 2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html.

Example of Judicial Review

An example of judicial review is set forth in Texas v. Johnson, 491 U.S. 397 (1989). In Johnson, the US Supreme Court ruled that burning a flag is protected self-expression under the First Amendment to the US Constitution. Thus the Court reversed the defendant’s conviction under a Texas statute that criminalized the desecration of a venerated object. Note how Johnson not only invalidates a state statute as being inferior to the US Constitution but also changes the US Constitution by adding flag burning to the First Amendment’s protection of speech.

Figure 1.5 Diagram and Hierarchy of the Sources of Law

Stare Decisis and Precedent

Cases are diverse, and case law is not really law until the judge rules on the case, so there must be a way to ensure case law’s predictability. It would not be fair to punish someone for conduct that is not yet illegal. Thus judges adhere to a policy called stare decisisA court’s policy of following previous court decisions.. Stare decisis is derived from English common law and compels judges to follow rulings in previous cases. A previous case is called precedentA previous court decision followed in stare decisis.. Once judges have issued a ruling on a particular case, the public can be assured that the resulting precedent will continue to be followed by other judges. Stare decisis is not absolute; judges can deviate from it to update the law to conform to society’s modern expectations.

Case Citation

Cases must be published to become case law. A published case is also called a judicial opinionCase law that has been written and published.. This book exposes you to many judicial opinions that you have the option of reading on the Internet. It is essential to understand the meaning of the case citationInformation that identifies the location of a published judicial opinion.. The case citation is the series of numbers and letters after the title of the case and it denotes the case’s published location. For example, let’s analyze the case citation for Keeler v. Superior Court, 470 P.2d 617 (1970).

Figure 1.6 Keeler Case Citation

As you can see from the diagram, the number 470 is the volume number of the book that published the Keeler case. The name of that book is “P.2d” (this is an abbreviation for Pacific Reports, 2d Series). The number 617 is the page number of the Keeler case. The date (1970) is the date the California Supreme Court ruled on the case.

Case Briefing

It is useful to condense judicial opinions into case brief formatA way to reduce a judicial opinion to its essential components.. The Keeler case brief is shown in Figure 1.7 "Keeler Case Brief".

Figure 1.7 Keeler Case Brief

Read this case at the following link: http://scholar.google.com/scholar_case?case=2140632244672927312&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

Published judicial opinions are written by judges and can be lengthy. They can also contain more than one case law, depending on the number of issues addressed. Case briefs reduce a judicial opinion to its essentials and can be instrumental in understanding the most important aspects of the case. Standard case brief formats can differ, but one format that attorneys and paralegals commonly use is explained in the following paragraph.

Review the Keeler case brief. The case brief should begin with the title of the case, including the citation. The next component of the case brief should be the procedural facts. The procedural facts should include two pieces of information: who is appealing and which court the case is in. As you can see from the Keeler case brief, Keeler brought an application for a writ of prohibition, and the court is the California Supreme Court. Following the procedural facts are the substantive facts, which should be a short description of the facts that instigated the court trial and appeal. The procedural and substantive facts are followed by the issue. The issue is the question the court is examining, which is usually the grounds for appeal. The case brief should phrase the issue as a question. Cases usually have more than one issue. The case brief can state all the issues or only the issue that is most important. The substantive holding comes after the issue, is actually the case law, and answers the issue question. If more than one issue is presented in the case brief, a substantive holding should address each issue.

Figure 1.8 Example of a Substantive Holding

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html.

A procedural holding should follow the substantive holding. The procedural holding discusses what the court did procedurally with the case. This could include reversing the lower court’s ruling, affirming the lower court’s ruling, or adjusting a sentence issued by the lower court. This book discusses court procedure in detail in Chapter 2 "The Legal System in the United States". Last, but still vital to the case brief, is the rationale. The rationale discusses the reasoning of the judges when ruling on the case. Rationales can set policy, which is not technically case law but can still be used as precedent in certain instances.

One judge writes the judicial opinion. Judges vote how to rule, and not all cases are supported by a unanimous ruling. Occasionally, other judges will want to add to the judicial opinion. If a judge agrees with the judicial opinion, the judge could write a concurring opinion, which explains why the judge agrees. If a judge disagrees with the judicial opinion, the judge could write a dissenting opinion explaining why the judge disagrees. The dissenting opinion will not change the judicial opinion, but it may also be used as precedent in a future case if there are grounds for changing the law.

Key Takeaways

• The three sources of law are constitutional, statutory, and case law.
• The sources of law are ranked as follows: first, constitutional; second, statutory; and third, case law. Although it is technically ranked the lowest, judicial review makes case law an extremely powerful source of law.
• The purpose of the US and state constitutions is to regulate government action.
• One purpose of statutory law is to regulate individual or private action.
• The purpose of case law is to supplement the law when there is no statute on point and also to interpret statutes and the constitution(s).
• The court’s power to invalidate statutes as unconstitutional is called judicial review.

• The components of a case brief are the following:

  • The title, plus citation. The citation indicates where to find the case.
  • The procedural facts of the case. The procedural facts discuss who is appealing and in which court the case is located.
  • The substantive facts. The substantive facts discuss what happened to instigate the case.
  • The issue. The issue is the question the court is examining.
  • The substantive holding. The substantive holding answers the issue question and is the case law.
  • The procedural holding. The procedural holding discusses what the court did procedurally with the case.
  • The rationale. The rationale is the reason the court held the way it did.

Exercises

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Hal invents a new drug that creates a state of euphoria when ingested. Can Hal be criminally prosecuted for ingesting his new drug?
2. Read Shaw v. Murphy, 532 U.S. 223 (2001). Did the US Supreme Court allow prison inmates the First Amendment right to give other inmates legal advice? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
3. Read Justice Scalia’s dissenting opinion in Lawrence v. Texas, 539 U.S. 558 (2003). What is the primary reason Justice Scalia dissented to the US Supreme Court’s opinion in Lawrence? The dissenting opinion is available at this link: http://www.law.cornell.edu/supct/html/02-102.ZD.html. The judicial opinion in Lawrence v. Texas is available at this link: http://www.law.cornell.edu/supct/html/02-102.ZS.html.