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FSU / Law and Process / CJL 4110 / What are the two sources of criminal law?

What are the two sources of criminal law?

What are the two sources of criminal law?


Exam 1 Study Guide

What are the two sources of criminal law?

Substantive Criminal Law

1. Sources of Criminal Law: Statute versus Common Law

o Common Law: (judicial)  

 Most serious crime are ancient

 Judges have defined them over hundreds of years for  

deciding particular cases

 Stare Decisis = principle to follow past court decisions.  o Statutory Law: (legislature/executive)

 Law that is codified by statute (i.e. written law)

 State criminal codes, US Criminal Code, and municipal  

codes (city/town councils)

 More democratic but may lead to “too much law” (i.e. over criminalization)

2. Structure of Court System (Trail and Appeals)

o Trial Courts

 Judges = “legal umpire”

What happens during trial courts?

∙ Rules on admissibility of evidence, manages legal If you want to learn more check out What is howard aiken's contribution on online education?


∙ Provides jury instructions on law

o Judge explains every legal rule relevant to the

case at hand.

 Juries = “fact finders”

∙ Hear evidence and decide facts

∙ Makes final decision

o Is the defendant guilty beyond a reasonable


o Appellate Courts

 Defendants can appeal guilty verdict

∙ So, a “not guilty” verdict is the end of the case

 Appeal must be based on legal errors made at trial  

∙ Not based on factual errors

∙ Trial court record is taken as the “factual record”

What are the three aspects observed in burdens at trial?

3. Definition of “Criminal Conduct” & “Criminal Liability”

o MPC attaches criminal liability to “conduct that unjustifiably and inexcusably inflicts or threaten substantial harm to individual or public interests.”  

o 4 elements in this definition: We also discuss several other topics like What were the demographics of chinese like during the exclusion movement?
We also discuss several other topics like How is sample size used in research?

 Conduct

 Unjustifiably and inexcusably

 Inflicts or threatens to inflict substantial harm

 To individual or public interests

4. Burdens at Trial (Proof, Production, Persuasion)

 Burdens at Trial

∙ Burden of proof

o Prosecution must prove every element of the

alleged crime beyond a reasonable doubt

 Factual burden (jury)

 In re Winship (1970)

o Presumption of innocence guaranteed by

5th/14th amendments (due process)

o Blackstone’s ratio (1760)

 “It is better that ten guilty persons go

free than that one innocent suffer.”

 Ben Franklin modifies it to 100/1  

 Burden of production

∙ Prosecutor has to produce evidence against defendant

∙ Defendant has burden of production for affirmative defenses We also discuss several other topics like When was the english bill of rights written?

∙ Legal burden (judge)

 Burden of persuasion

∙ Defendants may have to persuade jury of defense by a “preponderance of evidence” (i.e., >50% likely)

∙ Factual burden (jury) We also discuss several other topics like What is the goal of self-presentation?

5. Constitutional Limitations on Criminal Law

o Three applications to criminal law:

 1. Government cannot criminalize an act that was not  criminal when it was committed

∙ E.g. State passes a law-making alcohol illegal, then  We also discuss several other topics like What do federal courts have jurisdiction over?

arresting a person for sale of alcohol a day before  

law goes into effect

 2. Government cannot increase the punishment for a crime after the was committed

∙ E.g. state passes “three strikes” law and tries to  

apply it to offender who committed 3rd offense before

law goes into effect

 3. Government cannot take away a valid defense that was  available when the crime was committed  

∙ E.g. state removes “stand your ground” law and tries to prohibit defendant from using defense at trial for  

homicide that occurred before law going into effect.  

6. Ex post facto

o Ex post facto = “after the fact”

 Law passed after the prohibited activity occurs

7. Due Process

o 5th Amendment (1789)

 “…nor shall any person be subject for the same offense to  be twice put in jeopardy of life or limb; nor shall be  

compelled in any criminal case to be a witness against  

himself, nor be deprived of life, liberty, or property, without due process of law.  

o 14th Amendment (1868)

 “No State shall make or enforce any law which shall  

abridge the privileges or immunities of citizens of the  

United Sates; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  

8. Bill of Rights

o Right to Free Speech (1st)

 Even unprotected speech must be content-neutral  

∙ RAV v City of St. Paul (1992)

o “Fighting words” ordinance was content-based

 Even if law aimed at unprotected expression, must not  have chilling effect 

∙ Laws that are overbroad and may chill protected  

expression are also unconstitutional

 When does free speech become harassment?

∙ Commonwealth v. Johnson & Johnson  

o Right to Bear Arms (2nd)  

 “A well-regulated Militia, being necessary to the security of  a free state, the right of the people to keep and bear arms,  shall not be infringed.”

 Two major interpretations:

∙ 1. An individual right to own/possess firearms

o Main clause = “the right of the people”

∙ 2. A state militia right to own/possess firearms

o “well-regulated militia” preface cannot be  


 No standing army when written  

o Right to Privacy

 Does the constitution provide an individual right to  


∙ Not explicitly (i.e., word “privacy” absent)

 But… substantive due process

∙ Due process may limit substantive power of states to regulate certain areas of human life/liberty

o Originally this applied to “economic rights”

 Until 1934 (Nebbia v. New York), Court  

struck down lots of economic regulations  

as violating people’s “liberty of contract”

 Court has not struck down economic  

regulation via substantive due process  

since 1937

o Recent Court has limited to non-economic  

“fundamental” rights  

 Whether a right is considered  

“fundamental” by Court is now the main  


 Mostly involve personal, privacy issues  

involving intimate relationships.  

9. Cruel and Unusual Punishment (8th)  

o “Excessive bail shall not be required, now excessive fines  imposed, nor cruel and unusual punishments inflicted.”

o Government prohibited from imposing criminal punishment that  is BOTH:

 Cruel  

 Unusual

o What does this mean?

o No “barbaric” punishments

o Original meaning = medieval-style punishments

 Burning criminals at stake, crucifixion, beheading, torture ∙ This was only limit on punishment for 100+ years

o Death should be “instant and painless”

 Toward end of 19th century, some states began questioning other forms of punishment

∙ Hanging eliminated by NY in 1885 (replaced by  

electric chair)

o Not limited to what was considered “cruel and unusual” in 1789  SCOTUS looks at “evolving standards of decency that mark the progress of a maturing society”

10. Elements of Criminal Liability

o First principle of criminal liability  

 Crime must consist of:

∙ Criminal act (actus reas)

∙ Criminal mind (mens rea)

∙ Cause  

∙ Harm

11. Actus Reas

o There must be a “bad act”

 What does this mean

o Crime must be voluntary act

 What is “voluntary”?

 What is an “act”?

12. Voluntary  

o People only deserve to be punished for voluntary acts  Also, cannot deter involuntary acts

o What is voluntary

 Most acts presumed voluntary (i.e. “narrow” meaning) o MPC defines “involuntary act” as

 “a bodily movement that otherwise is not a product of the  effort or determination of the actor, either conscious or  habitual?

∙ “Involuntary acts include: convulsions, reflexes,  

sleepwalking, or acts under hypnosis”

o “One voluntary act is enough”

 IF conduct involves both voluntary and involuntary acts, it  may still be deemed voluntary  

∙ Ex. Epileptic has seizure while driving may be held  


13. Act

o A crime must be an “act”

 What is an “act”

o First, cannot punish thoughts

 Not sufficient to think about committing crime

∙ What about crime of conspiracy?  

o Second, cannot punish “status” or “condition”

 Ex. It is unfair to punish someone for being addicted to  illegal drugs

∙ In fact, it is “cruel and unusual”

 Only applies to pure status offenses

∙ Ex. Does not apply to “drunk in public”

14. Criminal Omissions

o What about causing harm by failing to act?

 Failure to report

 Failure to intervene

o Is there a duty to prevent harm to others?

 NO

 American Bystander Rule

∙ No legal duty to rescue a stranger in danger, even if  there is no risk

o Compare this to “Good Samaritan doctrine”  

which creates a legal duty to help (in case of  

low risk)

 Omission to act only a crime where there is a legal duty to  act.

o Criminal omissions: 4 kinds of legal duties

 Statutory

∙ Duties written down in the law

o Ex. Duty to report child abuse, duty to file  

income, duty to register firearms  

 Contractual  

∙ Duties established by private contracts

o Ex. Lifeguard duty to watch swimmers on  

beach, babysitter duty to look after child

 Special relationship

∙ Duties established by special relationship (common  


o Ex. Parent-child, doctor-patient, carrier

passenger, employer-employee

o Can special relationships be temporary?

 Omission following act

∙ Creation of risk

o Ex. If person accidentally starts fire, then does  

nothing to stop it.  

∙ Voluntary assistance

o Ex. If person begins rescue attempt, then  


o Failing to act can give rise to criminal liability  

15. Criminal Possession

o Is possession an “act”?

 Technically, possession is passive condition

o But possession does not violate actus reas  

 “legal fiction”

∙ It is necessary to “pretend” that possession is an act ∙ Otherwise could not prosecute drug/weapon crimes

 More than million possession arrests each year

∙ “Possession does the crime war’s dirty work”

o Types of possession

 Actual possession

∙ Physical possession of banned substance

 Constructive possession

∙ Banned substance “within control”  

 Possession standards

∙ Knowing possession  

o Awareness of possession (actual or  


 Most states require knowing possession

∙ Mere possession

o Possession without knowing

 Some states only require mere  


16. Mens Rea: Mental Culpability

o “An act doesn’t make the actor guilty, unless his mind is guilty”  We don’t punish people for accidents

∙ Exception: strict liability  

o “Culpable mind”

 What level of culpability is involved in the crime?

17. Mens Rea vs. Motive

o Mens rea is not motive

 Motive is the “why” of the crime

∙ Doctor kills patient to end suffering = noble intent

∙ Husband kills wife to end nagging = not noble intent   Both cases = intentional killing

o Motive is not an element of the crime

 But may provide evidence of other elements

∙ Ex. Husband claims that he accidently kills wife

o Evidence shows that he was aware of wife’s  

extramarital affair

o This provides reason that he might have  

intentionally killed her

∙ Also, may provide defense

o Ex. Man kills daughter who is suffering  

debilitating disease  

 He intentionally killed her (murder), but  

“noble intent” may cause lighter  


18. General vs. Specific Intent Crimes

o General intent crime

 Person intends to commit the criminal act but not  

necessarily the specific result

∙ Battery is a general intent crime

o The act of intentionally touching someone  

without permission is battery regardless why  

(“I only meant to stun him with a quick sucker  

punch, not to break his jaw in 4 places!”)

 Specific intent crimes

∙ Some specific intent triggers the criminal act (such  

as a specific motive)

o Burglary is specific intent crime

 The intent to commit the criminal act of  

breaking and entering (general intent)  

plus the specific intent to commit a crime

once inside (such as the crime of larceny)

19. “Purposely”

o Person has the commission of the criminal act as conscious  object

 In other words, “you did it on purpose”

o This is most blameworthy or culpable state of mind  o 1st degree  

20. “Knowingly”

o The keyword is awareness of near certainty of harm  o Person is aware – they know – that the act they commit will  probably cause a bad result.  

o 2nd degree  

21. “Recklessly”

o Person is aware that criminal act creates a substantial and  unjustifiable risk of harm  

 Substantial risk may be justifiable (doctor performing life saving surgery)

 Unjustifiable risk may not be substantial (dropping water  balloons on people on the street)

o Conscious disregard of risk  

 Keyword is awareness of risk of harm  

o This is a subjective test.  

o 3rd degree  

22. “Negligently”

o Person is not aware that criminal act creates a substantial and  unjustifiable risk, but should be aware.  

 Reasonable person test

∙ Would a reasonable person have known they were  

creating substantial and unjustifiable risk

o Gross deviation from reasonable person

 Criminal negligence > ordinary negligence

o Unconscious disregard of risk  

 Keyword is unaware of risk creation

 But should they have been aware?  

o This is an objective test

o One step above an accident

o (Strict liability): a crime does not involve mens rea at all.  23. Strict Liability  

o Liability without fault

 Sometimes legislature passes law with no mens rea  requirements

∙ Strict liability laws arose during the industrial  


o Usually target very dangerous activities

 Ex. Owning dangerous pets, bringing  

guns on airplane, selling mislabeled  


 Punishment usually mild

∙ MPC says strict liability crimes must be “violations”  


∙ Exception: statutory rape

 Strict liability crimes prohibit accidents

∙ Is this constitutional

o So long as people on fair notice (laws not  


24. Legal Causation

o Two aspects of causation for criminal law

 Factual cause

∙ First, we can ask whether X was the factual cause of  


o Did X contribute to Y? Would Y have occurred  

without X?

∙ “But for’ test

o But for X, would Y have happened?

 Every event (Y) have lots of but-for  

causes (Xs)

∙ Ex. But-for my cutting the brakes  

on your car (X), you would not have

been killed (Y)

 X was necessary for Y to occur

∙ But maybe not sufficient

∙ Substantial factor test

o Was X a substantial factor in bringing about Y?

 In some cases, Y may have happened  

without X, but X was still a “substantial  


 Proximate cause

∙ Second, we can ask whether X was the proximate  

cause of Y

o Is it fair to hold X responsible for Y?  

∙ MPC definition:

o An act is proximate cause of resulting harm if it

is “not too remote or accidental in its  

occurrence to have a just bearing on the  

actor’s liability or on the gravity of his offense.”

∙ Basically, is it fair to hold the actor responsible for  

the harm?

o Is the harm a foreseeable consequence of the  


25. Mistake of Fact

o Mistakes of fact

 Defendant commits criminal act, but makes factual mistake  Is this a defense?  

∙ Often, yes

∙ Mistake can prevent requisite mens rea from forming  This is a “failure of proof” by prosecution

∙ Ex. A bartender is arrested for “knowingly selling  

alcohol to a minor” when he mistakenly thought  

minor was 21 based on fake ID

o His reasonable mistake of fact about age  

negates crime

26. Mistake of Law

o Mistake of law

 Defendant ignoring of law

∙ Ex. A man is arrested for texting while driving in NY;  

the man just crossed border from MA and did not re.  

 This is generally NOT a defense to crime

∙ Exception is where the defendant’s mistake of law  

negates the mens rea

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