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Criminal Law

l Introduction

Criminal

law

is

the

body

of

the

law

that

defines

criminal

offenses, regulates the apprehension, charging, and trial of suspected

offenders,and

fixes

punishment

for

convicted

persons.

Substantive

criminal

law

defines

particular

crimes,

and

procedural

law

establishes rules for the prosecution of crime. In a democratic society,

it

is

the

function

of

the

legislative

bodies

to

decide

what

behavior

will

be

made

criminal

and

what

penalties

will

be

attached

to

violations of the law.

Capital

punishment

may

be

imposed

in

some

jurisdictions

for

the

most

serious

crimes.

And

physical

or

corporal

punishment

may

still

be

imposed

such

as

whipping

or

caning,

although

these

punishments

are

prohibited in much of the world. A convict may be incarcerated in prison

or jail and the length of incarceration may vary from a day to life.

Criminal

law

is

a

reflection

of

the

society

that

produce

it.

In

an

Islamic

theocracy,

such

as

Iran,

criminal

law

will

reflect

the

religious

teachings of the Koran; in an Catholic country, it will reflect the tenets of

Catholicism. In addition, criminal law will change to reflect changes in

society,

especially

attitude

changes.

For

instance,

use

of

marijuana

was

once considered a serious crime with harsh penalties, whereas today the

penalties

in

most

states

are

relatively

light.

As

severity

of

the

penalties

was

reduced.

As

a

society

advances,

its

judgments

about

crime

and

punishment change.

ts of a Crime

Obviously, different

crimes require different behaviors, but there

are

common

elements

necessary

for

proving

all

crimes.

First,

the

prohibited behavior designated as a crime must be clearly defined so

that

a

reasonable

person

can

be

forewarned

that

engaging

in

that

behavior

is

illegal.

Second,

the

accused

must

be

shown

to

have

possessed the requisite intent to commit the crime. Third, the state

must

prove

causation.

Finally,

the

state

must

prove

beyond

a

reasonable doubt that the defendant committed the crime.

(1) actus reus

The

first

element

of

crime

is

the

actus

reus.

Actus

is an

act

or

action and

reus

is a person judicially accused of a crime. Therefore,

actus

reus

is

literally

the

action of

a

person

accused

of

a crime.

A

criminal

statute

must

clearly

define

exactly

what

act

is

deemed

“

guilty

”

---that is, the exact behavior that is being prohibited. That is

done

so

that

all

persons

are

put

on

notice

that

if

they

perform

the

guilty

act,

they

will

be

liable

for

criminal

punishment.

Unless

the

actus

reus

is

clearly

defined,

one

might

not

know

whether

or

not

on

e

’

s behavior is illegal.

Actus reus

may be accomplished by an action, by threat of action,

or exceptionally, by an omission to act, which is a legal duty to act.

For

example,

the

act

of

Cain

striking

Abel

might

suffice,

or

a

parent

’

s failure to give to a young child also may provide the

actus

reus

for a crime.

Where the

actus reus

is a failure to act, there must be a duty of

care. A duty can arise through contract, a voluntary undertaking, a

blood relation, and occasionally through one

’

s official position. Duty

also can arise from one

’

s own creation of a dangerous situation.

(2)

mens rea

A second element of a crime is mens

rea

. Mens

rea

refers to an

individual

’

s state of mind when a crime is committed. While

actus

reus

is proven by physical or eyewitness evidence, mens

rea

is more

difficult to ascertain. The jury must determine for itself whether the

accused had the necessary intent to commit the act.

A

lower

threshold

of

mens

rea

is

satisfied

when

a

defendant

recognizes an act is dangerous but decides to commit it anyway. This

is recklessness. For instance, if Cain tears a gas meter from a wall,

and knows this will let flammable gas escape into a neighbor

’

s house,

he could be liable for poisoning. Courts often consider whether the

actor

did

recognise

the

danger,

or

alternatively

ought

to

have

recognized

a

danger

(though

he

did

not)

is

tantamount

to

erasing

intent as a requirement. In this way, the importance of mens

rea

has

been reduced in some areas of the criminal law.

Wrongfulness

of

intent

also

may

vary

the

seriousness

of

an

offense.

A

killing

committed

with

specific

intent

to

kill

or

with

conscious recognition that death or serious bodily harm will result,

would be murder, whereas a killing affected by reckless acts lacking

such a consciousness could be manslaughter.

(3)

Causation

The

next

element

is

causation.

Often

the

phrase

“

but

for

”

is

used to determine whether causation has occurred. For example, we

might

say

“

Cain

caused

Abel

”

,

by

which

we

really

mean

“

Cain

caused

Abel

’

s

death.

”

In

other

words,

‘

but

for

Cain

’

s

act,

Abel

would still be alive.

”

Causation, then, means

“

but for

”

the actions of

A, B would not have been harmed. In criminal law, causation is an

element that must be proven beyond a reasonable doubt.

(4) Proof beyond a Reasonable Doubt

In view of the fact that in criminal cases we are dealing with the

life

and

liberty

of

the

accused

person,

as

well

as

the

stigma

accompanying

conviction,

the

legal

system

places

strong

limits

on

the

power

of

the

state

to

convict

a

person

of

a

crime.

Criminal

defendants

are

presumed

innocent.

The

state

must

overcome

this

presumption of innocence by proving every element of

the offense

charged

against

the

defendant

beyond

a

reasonable

doubt

to

the