Chapter 1. Introduction and General Considerations 407 results (showing 5 best matches)
- The criminal law and the civil law have much in common. Criminal statutes have played a part in creating civil liability, while civil statutes have been important in the development of the substantive criminal law. There are, however, a number of differences between criminal law and civil law because of their different functions.
- The subject of criminal procedure is not dealt with in this Book. It is appropriate, however, to consider at this point some of the basic characteristics of the criminal process in order to understand the significance of the substantive criminal law in terms of day-to-day criminal justice administration. Without such an understanding, the discussion of the substantive criminal law might prompt the inappropriate conclusion that the law of crimes is extremely severe and technical. While it is true that many of the nice technicalities of the substantive criminal law have continued to exist long after the reasons for their existence have disappeared, many of these technicalities (and the severity of them) are overcome through law and practice in the realm of criminal procedure.
- The substantive criminal law and the substantive civil law (such as the law of torts, contracts, and property) have much in common. Civil law, like criminal law, aims to shape people’s conduct along lines that are beneficial to society—by preventing them from doing what is bad for society (as by imposing liability for damages upon those who commit torts or break contracts) or by compelling them to do what is good for society (as by decreeing specific performance of contracts for the sale of real property). Society has an interest in preventing killings and rapes; but it also wants to prevent automobile accidents and to discourage breaches of contracts. Civil law, like criminal law, is effective mainly because of the sanctions which the law imposes, through the courts, upon those who commit violations. Even these sometimes do not differ greatly as between the civil and the criminal law. Paying damages (especially “punitive damages”) for torts or contract breaches is not much...
- The final basic premise of the criminal law is that conduct is not criminal unless forbidden by law which gives advance warning that such conduct is criminal. This idea, sometimes termed “the principle of legality,” is often expressed by the Latin phrase (no crime or punishment without law). The various areas of the criminal law in which the principal of legality operates are treated at some length herein. It is reflected in the ex post facto prohibition, the rule of strict construction of criminal statutes, and the trend away from open-ended common law crimes.
- On the other hand, civil statutes have to some extent been important in the development of the substantive criminal law. Thus the common law rule that one cannot be guilty of larceny of his spouse’s property (since husband and wife are one individual) has generally been done away with by judicial decision because Married Women’s Property Acts (which do not speak of criminal liability at all) have made the wife, in property matters at least, an individual separate from her husband. The common law presumption of coercion, where a wife commits what would otherwise be a crime in her husband’s presence, has generally fallen the same way, although the civil statutes freeing the wife from her husband’s domination do not themselves directly deal with the matter of coercion as a criminal defense. The criminal law is slower to borrow from civil statutes than civil law is to borrow from criminal statutes, at least in the area of imposing criminal liability where none existed before. This is...law
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Chapter 4. Criminal Jurisdiction 212 results (showing 5 best matches)
- The word “jurisdiction” is used in two quite different senses in the field of criminal law: (1) the power to create criminal law; and (2) the power to enforce the criminal law thus created. The two meanings sometimes coincide: thus a state or nation which has no power to make certain conduct criminal has no power to enforce such conduct. But the power to create crimes is not always co-extensive with the power to enforce: thus a state or nation which has the power to enact a law making certain conduct criminal may lack the power in a particular situation to enforce that criminal law.
- For criticism of the increasing federalization of criminal law, see Task Force on the Federalization of Criminal Law, ABA Criminal Justice Section, The Federalization of Criminal Law (1998); Clymer,
- This is to be distinguished from “the spectacular rise in international criminal law and its claims to supra-national jurisdiction,” regarding which “the United States has consistently affirmed the prescriptive jurisdiction of international criminal law while refusing to allow its own citizens to be subject to supra-national enforcement or judicial jurisdiction for alleged violations of international criminal law.” Wolitz,
- The second category of federal criminal jurisdiction in Indian country is that created by what is usually referred to as the General Crimes Act, which provides: “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.” The critical words here are “sole and exclusive jurisdiction,” for the reference is not to the federal criminal law of general applicability discussed above, but rather to that federal criminal law applicable in certain places where federal law is exclusive and state law does not apply.
- Notwithstanding the limited character of this federal jurisdiction, the scope of federal substantive criminal law of this variety has been growing steadily since the nation was founded, so that at the present time there is a substantial amount of such federal criminal law. Federal criminal law of this type is employed, according to one observer, in three different ways. First, it is used to punish anti-social conduct primarily injurious to the federal government. In this classification fall crimes like treason, espionage, bribery of federal officers, tampering with federal juries, contempt of federal courts, failure to pay federal taxes, thefts from national banks, thefts of federal property, and murder of federal law enforcement officers.
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Chapter 6. Acts; Concurrence and Consequences 206 results (showing 5 best matches)
- For discussion of criminal liability based on omission to act, see J. Hall, General Principles of
- A Study of Criminal Violence in Sport, 11 Marq. Sports L.Rev. 87 (2000); Barry, Fox & Jones,
- But see Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, l82 Cal.L.Rev. 1181 (1994).
- For other discussions of “legal” or “proximate” cause in the criminal law, see J. Hall, General Principles of Criminal Law ch. 8 (2d ed.1960); H. Hart & A. Honore, Causation in the Law chs. 12–14 (1959); G. Williams, Criminal Law: The General Part ch. 4 (2d ed.1961); Kadish, ; Mueller, Causing Criminal Harm, in Essays in Criminal Science 169 (G. Mueller ed.1961); Ryu,
- The fact that the victim of a crime was himself engaged in criminal activity is not, in and of itself, a defense. As explained in the leading case of (whereby one party to a crime may not recover in a civil suit against another party thereto) has no place in the criminal law, for the purpose of the criminal law is the suppression of crime and the punishment of criminals. Criminal prosecutions are not brought for the protection and benefit of the victim, and thus the victim’s status as a criminal is not relevant.
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Chapter 2. Sources and General Limitations 346 results (showing 5 best matches)
- Today we find the substantive criminal law in several forms: (1) mostly in statutes; (2) not infrequently in administrative regulations passed pursuant to legislative delegation of authority to an administrative agency; and (4) sometimes in the common law of crimes. Since historically the substantive criminal law began as common law for the most part, and only later became primarily statutory, it will be well to begin with common law crimes, with a view especially to determining the place of such crimes in modern criminal law.
- It has long been settled that there are no federal common law crimes; if Congress has not by statute made certain conduct criminal, it is not a federal crime. In spite of this general proposition, Congress has provided for common law crimes in the District of Columbia, and Congress has provided that state criminal law (and this would include state criminal law of the common law variety in the states retaining common law crimes) applies (in the absence of a federal criminal statute) in those “federal enclaves,” or islands of federal territory (e.g., army posts, naval bases), located within states. Beyond this, there is a sense in which “federal criminal law is most appropriately viewed as a species of federal common law,” for it is “dominated by judge-made law crafted to fill the interstices of open-textured statutory provisions,” resulting from the fact that Congress has often “resort[ed] to highly general language that facilitates legislative consensus by deferring resolution of...
- The states which have received, into their criminal law, common law crimes have also adopted those English criminal statutes in aid of the common law which were enacted before 1607 (or, in some states, 1775). The interpretation put upon these English statutes by the English courts before 1607 (1775) is generally adopted along with the statute.
- Of course, on the civil side of the law we are used to the idea that the common law can grow to meet new situations and to accommodate changing customs and sentiments, but there are difficulties on the criminal side, bound up with the notion, discussed more fully below, that the public is entitled to fair warning of what conduct is criminal.
- The principal argument against common law crimes is expressed in the maxim the basis of which is that the criminal law ought to be certain, so that people can know in advance whether the conduct on which they are about to embark is criminal or not. “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” To require one who intends to tread close to the line of criminality (yet remaining on the side of legality) to study the criminal statutes (and the cases construing those statutes) may be fair enough; but to make him read the English and American cases on common law crimes and speculate on their scope is worse; and it is even more unfair (so the argument runs) to make him guess at his peril as to what a court will...
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Chapter 9. Excuses and Other Conditions 275 results (showing 5 best matches)
- Justification and Excuse, Law and Morality, 53 Duke L.J. 1 (2003)
- The preceding two chapters have to do with the substantive and procedural aspects, respectively, of one of the best known (albeit probably the least invoked) of all the defenses known in the criminal law: the insanity defense. The present chapter and the following chapter explore a great many other criminal law defenses. It is therefore appropriate at this point, before looking at the particulars of these other defenses, to examine in more general terms just what criminal law defenses are all about.
- At common law, children under the age of seven are conclusively presumed to be without criminal capacity, those who have reached the age of fourteen are treated as fully responsible, while as to those between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity. Several states have made some change by statute in the age of criminal responsibility for minors. In addition, all jurisdictions have adopted juvenile court legislation providing that some or all criminal conduct by those persons under a certain age must or may be adjudicated in the juvenile court rather than in a criminal prosecution.
- On the need for criminal prosecution of some quite young children, see Ward,
- See Bowman, Narcotic Addiction and Criminal Responsibility Under Durham, 53 Geo.L.J. 1017 (1965); Fingarette,
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Chapter 13. Parties; Liability for Conduct of Another 253 results (showing 5 best matches)
- 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 155–57 (1970). National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 401 (1971) expressly provides that if one is a co-conspirator he is also liable as an accomplice only if the usual requirements are met.
- See, e.g., Arlen, The Potentially Perverse Effects of Corporate Criminal Liability, 23 J.Leg.Studies 833 (1994); Brown,
- In the area of the civil law we are quite used to vicarious responsibility (the doctrine of respondeat superior), although in criminal law it is a departure from the basic premise of criminal justice that crime requires personal fault (once again, ). Said one court: “The distinction between respondeat superior in tort law and its application to the criminal law is obvious. In tort law, the doctrine is employed for the purpose of settling the incidence of loss upon the party who can best bear such loss. But the criminal law is supported by totally different concepts. We impose penal treatment upon those who injure or menace social interest, partly in order to reform, partly to prevent the continuation of the anti-social activity and partly to deter others. If a defendant has personally lived up to the social standards of the criminal law and has not menaced or injured anyone, why impose penal treatment?” ...crimes represent a use of the machinery of criminal justice to impose...
- The common law did not impose criminal liability upon a faultless employer for the unauthorized criminal conduct of his employee except in two isolated instances: nuisance and libel. An employer was criminally liable for the criminal nuisances and libels of his employees though he did not know of or authorize the conduct and may have even forbidden it. In other areas of conduct constituting common law crimes the employer is not liable for what the employee did without his knowledge or authorization, and even the two exceptions of nuisance and libel have seldom received recognition in this country.
- Furthermore, many laws and practices of enforcement openly tolerate and sometimes actively encourage private compromise of criminal liability. [P]rosecutors themselves are often content to drop criminal proceedings when the alleged offender agrees to make appropriate restitution to the victim.
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Chapter 11. Solicitation and Attempt 159 results (showing 5 best matches)
- Criminal Law 586–99 (2d ed.1960)
- In situations such as these, where the soliciting party would not be held guilty of the completed crime if it were committed as a result of the solicitation, the act of soliciting is itself not criminal. solicitation to commit a crime that if the criminal object were achieved, the solicitor would not be guilty of a crime under the law defining the offense or the law concerning accomplice liability. Were the rule otherwise, the law of criminal solicitation would conflict with the policies expressed in the definitions of the substantive criminal law. This does not mean, of course, that the mere fact the solicitor was legally incapable of committing the crime directly provides him with a defense when he solicits another to do it.
- National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 1005 (1971) provides that it is an affirmative defense to a solicitation charge “that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited.”
- The Court of Star Chamber was abolished in 1640, and its influence upon subsequent common law courts is a matter of dispute. But it is clear that many years elapsed after its abolition before a doctrine of criminal attempt was actually formulated. “[T]he language of the common law courts after 1640 continues to reflect the early common law views and statements antedating the Star Chamber; there is not a ripple in the calm surface to indicate that a new doctrine of criminal attempts had been suggested.” Most likely the development of the crime of attempt was retarded by the fact that other means often existed for dealing with unsuccessful or incompleted criminal schemes. Of particular significance is the accelerated growth of the aggravated assault type of crime during this period.
- The distinction might be important for several reasons, depending upon the law of the jurisdiction. If only solicitation of felonies has been made criminal, then has not committed a criminal solicitation. If the penalties for solicitation are determined by the seriousness of the crime solicited then
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Chapter 5. Mental States 296 results (showing 5 best matches)
- others have relied upon many of the defense-to-liability general principles of criminal law to support the proposition that good motives are sometimes a defense. Thus it is noted that one who commits what is otherwise a crime may have the defense of necessity if his conduct, though it literally violates the law, avoids an immediate harm greater than the harm which the criminal law in question seeks to prevent—as where he steals food because he is starving and will soon die without the food; or where he breaks out of prison, which is on fire, in violation of a statute against prison-breaking, in order to save himself from the fiery death which awaits him if he stays. He has the mental state which the crime in question requires (an intent to deprive the foodowner of his property; an intent to break out of prison); nevertheless, he is not guilty of the crime because his conduct, though literally forbidden by the criminal law, is justified by the policy of the criminal law which, in...
- Why is it that neither ignorance of the criminal law (in the sense that the defendant is unaware of the statute proscribing his conduct ) nor mistake of the criminal law (in the sense that the defendant has mistakenly concluded that the relevant statute does not reach his conduct) is a defense? Upon the early notion that the law is “definite and knowable,” one common explanation is provided by the maxim that everyone is presumed to know the law. But even if there was once a time when the criminal law was so simple and limited in scope that such a presumption was justified, it is now an “obvious fiction” No person can really “know” all of the statutory and case law defining criminal conduct. Indeed, the maxim has never served to explain the full reach of the ignorance-of-the-law-is-no-excuse doctrine, for the doctrine has long been applied even when the defendant establishes beyond question that he had good reason for not knowing the applicable law.
- Whatever the merit of these several arguments in support of the general rule that ignorance or mistake as to the penal law is no defense, several commentators have expressed concern with the harshness of the rule when applied to the lesser regulatory The early criminal law was “well integrated with the mores of the time,” so that “a defendant’s mistake as to the content of the criminal law * * * would not ordinarily affect his moral guilt.” But the vast network of regulatory offenses which make up a large part of today’s criminal law does not stem from the mores of the community, and so “moral education no longer serves us as a guide as to what is prohibited.” Under these circumstances, where one’s moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law to recognize ignorance or mistake of the criminal law as a defense.criminal an individual who has not demonstrated any degree of social dangerousness, ...criminal, and (...
- Criminal Law 70 (2009)
- Criminal Law 376 (2d ed.1960)
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Chapter 12. Conspiracy 158 results (showing 5 best matches)
- Compare Rosenberg, Several Problems in Criminal Conspiracy Laws and Some Proposals for Reform, 43 Criminal Law Bull. 427 (2007), proposing a requirement of an overt act by each defendant.
- Such would no longer be the case under the proposed new federal code, which gives distinct treatment to the jurisdictional and behavioral content of the law. National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 201 (1971).
- The Court explained that knowledge by the conspirators “that their planned joint venture violates federal as well as state law seems totally irrelevant to that purpose of conspiracy law which seeks to protect society from the dangers of concerted criminal activity,” and also to that purpose of allowing intervention of the criminal law when “the likelihood of a commission of an act is sufficiently great and the criminal intent sufficiently well formed.”
- The generally accepted common law definition of conspiracy is “a combination of two or more persons * * * to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.” Not every unlawful purpose is criminal and thus acts lawful when performed by an individual may become criminal when the object of an agreement by many to perform them. Although the common law rule is based on what is probably an incorrect reading But most states provide that the object of a criminal conspiracy must be some crime
- For more detailed accounts of the history of conspiracy, see P. Winfield, History of Conspiracy and Abuse of Legal Procedure (1921); R. Wright, The Law of Criminal Conspiracies and Agreements (1887); Harno, Intent in Criminal Conspiracy, 89 U.Pa.L.Rev. 624 (1941); Pollack, Common Law Conspiracy, 35 Geo.L.J. 328 (1947); Sayre,
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Chapter 16. Physical Harm and Apprehension Thereof 85 results (showing 5 best matches)
- See § 5.2(d), for a discussion of the general principle of criminal law that, with all crimes requiring a specific intent, the defendant intends to do the forbidden thing, for purposes of criminal law, though he intends to do it only if the victim fails to comply with a condition the defendant has no legal right to impose.
- More accurately, “legally causes,” since it is not always enough, in criminal law, that the defendant’s conduct cause the injury in a “but for” sense. For a discussion of “legal cause” in criminal law, see § 6.4(c).
- For the effect of consent, generally, in criminal law, see § 6.5(a). For consent in the assault and battery area, see Puttkammer, Consent in Criminal Assault, 19 Ill.L.Rev. 617 (1925);
- Shen, Mind, Body, and the Criminal Law, 97 Minn.L.Rev. 2036, 2112 (2013)
- The question arises: on principle, should criminal assault be defined in terms of attempted battery, or of intentional successful frightening, or of both? One who fires at another with intent to hit him, though he misses, is, of course, a far more dangerous person than his milder counterpart who goes about intending only to frighten and not to injure. Therefore, the criminal law properly first singles out for punishment the man of violence who attempts a battery. Of course, the person who successfully frightens others, though not so bad a person as the unsuccessful attacker, is not altogether admirable—so that the view of the majority of states, which include him in the net comprising the crime of assault, is not necessarily wrong, though the minority view is to leave such minor bad conduct to the civil law to discourage. But that limitation has been rejected in most of the modern criminal codes.
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Chapter 7. Insanity Defense 134 results (showing 5 best matches)
- Criminal Law 24–25 (1964)
- Criminal Law 268 to 269 (9th ed.1923)
- There exist in the criminal law a number of substantive defenses to a charge of criminal conduct. These defenses are usually defined in terms of unusual circumstances which, when raised by the defendant, evidence a situation in which the purposes of the criminal law would not be served by conviction of the defendant. For example, take the defense of self-defense. is murder, and the various purposes of the criminal law from killing him, then the defense of self-defense comes into play because the purposes of the criminal law are better served by
- “[E]liminating the insanity defense would remove from the criminal law and the public conscience the vitally important distinction between illness and evil, or would tuck it away in an administrative process.” So the argument goes, it is extremely important that we retain the concept of responsibility in the criminal law and “that ‘blame’ be retained as a spur to individual responsibility.” Moreover, we would rebel at the notion of labeling as criminal those who are generally conceded not to be blameworthy.
- Psychiatry and Criminal Responsibility, 65 Yale L.J. 761 (1956)
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Chapter 21. Real Property Crimes 128 results (showing 5 best matches)
- While “any unauthorized entry on the land of another or unlawfully remaining on the premises of another is a trespass for which the law provides a civil remedy,” “trespass was not a crime at common law * * * unless it was accompanied by or tended to create a breach of the peace.” Criminal trespass as now defined in the law of most states is considerably broader than at common law, more generally covering “unwanted intrusion” onto real property. In large measure, the modern statutes serve a purpose much like that underlying the common law offense; just as “the criminal sanctions of the common law [offense] were imposed for the protection of public safety,” so too trespass statutes criminalizing refusal to leave another’s property when ordered to do so are directed at “the prevention of violence or threats of violence.” But today’s criminal trespass statutes are also intended to afford “protection to property rights” ..., which is itself “a proper subject for the imposition of criminal...
- The intrusive act required for the crime of criminal trespass is an entering of or remaining within or upon the specified premises in circumstances where such action is in fact contrary to law. The “enters or remains” language of the Model Penal Code is used in the great majority of the state criminal trespass statutes, and elsewhere very similar language is employed.law burglary is neither an additional requirement for a criminal trespass
- Although the requirement that the acts be committed in the night may not have been required in the ancient common law, Indeed, this element became one of the theoretical bases for the offense, as the night was considered the time when honest men might fall prey to criminals.
- Criminal Law 771 (1997), in discussing the Model Penal Code’s definition, which in the Code itself is so classified.
- One group of states, numbering only half a dozen, has adopted the Model Penal Code position, namely, that it is an “affirmative defense” under the criminal trespass law that “the premises were at the time open to members of the public The “primary objective of the defense is to exclude criminal prosecution for mere presence of a person in a place where the public generally is invited,” and would not foreclose prosecution of persons “who become undesirable due to disorderly conduct or other misbehavior [which] itself amounts to another criminal offense.”
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Preface 12 results (showing 5 best matches)
- The reach of the substantive criminal law is constantly expanding, and thus today’s law student is much more likely than his counterpart of some years ago to find himself engaged to some extent in the practice of criminal law after graduation. This practice may involve the prosecution of or defense against charges of such familiar crimes as robbery, battery, and rape; it may instead or in addition be concerned with the increasing body of regulatory crimes which have been enacted in response to such contemporary concerns as consumer protection and environmental control. An adequate preparation for such practice requires an of the fundamental bases of our system of substantive criminal law, rather than knowledge of the precise definitions of the growing list of crimes. Consequently, the major emphasis in this text is upon what is usually referred to as the ‘‘general part’’ of the criminal law (Part II), having to do with such matters as acts and omissions, mental state, causation,...law
- lawlawthat lawsubstantive criminal law oftencriminallawcriminallaw,’’criminallaw
- Criminallawcriminal law or
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Chapter 8. Insanity—Procedural Considerations 101 results (showing 5 best matches)
- Indeed, “[m]ental disorder among criminal defendants affects every step of the criminal justice process.” Morse, Mental Disorder and Criminal Law, 101 J.Crim.L. & Criminology 885 (2011) (assessing significance of mental disorder at
- “Almost every State that has considered the question under its Constitution has concluded that due process of law does not require that the prosecution assume the burden of proving a criminal defendant’s criminal responsibility.”
- The Court noted: “Here, in contrast, the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.”
- Whether such cases are appropriate for plea negotiations is a matter of dispute. Compare Enker, Perspectives on Plea Bargaining, in President’s Comm’n on Law Enf’t and Admin. of Justice, Task Force Report: The Courts 108, 113 (1967), with Griffiths, Ideology in Criminal Procedure, or a Third Model of the Criminal Process, 79 Yale L.J. 359, 398–99 (1970).
- Criminal Law 3 (1967);
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Chapter 3 Constitutional Limits on Power to Create Crimes 230 results (showing 5 best matches)
- Courts dealing with case law, and legislatures with statute law, have frequently created presumptions in aid of one side of a legal dispute, both in the civil and criminal fields of law. Given the long-accepted notion that the prosecution in a criminal case must prove all elements of the charge and that it must prove its case beyond a reasonable doubt, the constitutional validity of these presumptions is most likely to be challenged on the criminal side of the law. Moreover, these challenges are most likely to be directed to presumptions created by the legislature, apparently because legislatures have been less restrictive than courts in creating rebuttable presumptions.
- The United States Constitution forbids both the federal government and the states to deprive any person of life, liberty, or property without due process of law. Most state constitutions also contain a due process clause in identical or similar form. Although the term “due process” might appear to refer only to matters of procedure—requiring that certain procedures be followed and prohibiting others—it is also a substantive limitation on the powers of government. This is as true in the realm of criminal law as elsewhere; the constitutional requirement of due process looms large in criminal procedure, and is also important as a limitation on the manner and extent to which conduct may be defined as criminal in the substantive criminal law. We have already seen, for example, that due process requires that the Congress and the state legislatures be reasonably definite in declaring what conduct is criminal.
- The proposed new federal criminal code expressly provides that the “existence of federal jurisdiction over an offense shall not, in itself, prevent any state or local government from exercising jurisdiction to enforce its own laws applicable to the conduct in question.” National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 206 (1971). As to the resulting risk of prosecutions on both the state and federal level, this is dealt with by (a) authorizing federal agencies “to decline or discontinue federal enforcement efforts whenever the offense can effectively be prosecuted by nonfederal agencies and it appears that there is no substantial Federal interest in further prosecution or that the offense primarily affects state, local or foreign interests,” id. at § 207; (b) making a previous state prosecution a bar to a federal prosecution for the same conduct under certain circumstances, one exception being where the state law “is intended to...
- A state criminal law, otherwise within the police power of the state, may be invalid because a federal law on the subject has “preempted” (or “occupied”) the field to the exclusion of state law. “In the complex system of polity which prevails in this country, the powers of government may be divided into four classes:  Those which belong exclusively to the states;  Those which belong exclusively to the national government;  Those which may be exercised concurrently and independently by both;  Those which may be exercised by the states, but only until Congress shall see fit to act upon the subject.” The sometimes difficult problem in this area of constitutional law is whether to place a particular state criminal statute within category 3 or category 4, when both a federal and state criminal statute deal with the same subject matter. The problem would be easier to solve if Congress expressly provided that its statute was to be exclusive or not; but it seldom does so.
- The United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself,” This privilege against self-incrimination has had the greatest significance in the area of criminal procedure; its most obvious application is to allow a defendant in a criminal case a free choice as to whether to take the stand in his defense, Even more recently, however, the privilege has been recognized as a limitation upon the permissible reach of the substantive criminal law.
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Chapter 10. Justification 175 results (showing 5 best matches)
- The defense of necessity applies when the defendant is faced with this choice of two evils: he may either do something which violates the literal terms of the criminal law and thus produce some harm, or not do it and so produce a greater harm. If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law. So in the case of the criminal statute which forbade taking intoxicating liquor to church, wherein the defendant took whiskey there for medicinal purposes, the court, rejecting his defense of necessity, pointed out the alternative of staying at home or of bringing some other kind of medicine. ...cases of trespass on government property or similar criminal protest activity purportedly undertaken to terminate some dangerous governmental action, “a defendant’s legal alternatives will rarely, if ever, be deemed exhausted when the harm of which he complains can be palliated by political...
- , Comment (1985); G. Williams, Criminal Law: The General Part ch. 17 (2d ed.1961); J. Hall, General Principles of Criminal Law ch. 12 (2d ed.1960); Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & C. 289 (1974); Bergelson, Choice of Evils: In Search of a Viable Rationale, 6 Crim.Law & Philos. 289 (2012); Cotton,
- It might be argued that intentional homicide is a moral wrong, even when done to save life, so that necessity cannot justify intentional killings, yet the law does not and should not undertake to punish all acts that might be considered immoral. G. Williams, Criminal Law: The General Part § 237 (2d ed.1961).
- The matter is often expressed in terms of choice of evils: When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil. Thus the evil involved in violating the terms of the criminal law (taking another’s property; even taking another’s life) may be less than that which would result from literal compliance with the law (starving to death; two lives lost).
- Shoot to Kill: A Critical Look at Stand Your Ground Laws, 67 U.Miami L.Rev. 827, 850 (2013)
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Chapter 14. Murder 100 results (showing 5 best matches)
- The foregoing history is contained in N.Y. State Law Revision Commission, Communication to the Legislature, Legislative Doc. No. 65, 536–540 (1937), reprinted in L. Hall & S. Glueck, Criminal Law & Its Enforcement 37–39 (2d ed. 1958). See also R. Moreland, The Law of Homicide chs. 1–3 (1952); 1 J. Stephen, A History of the Criminal Law of England (1883).
- 3 J. Stephen, A History of the Criminal Law of England, 22 (1883).
- Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U.Pa.L.Rev. 1497 (1974)
- The leading general discussions of murder and manslaughter are: G. Fletcher, Rethinking Criminal Law chs. 4 & 5 (1978); R. Moreland, The Law of Homicide (1952); Wechsler & Michael, A Rationale of the Law of Homicide, 37 Colum.L.Rev. 701, 1261 (1937); Perkins, The Law of Homicide, 36 J.Crim.L. & Crim. 391 (1946);
- Tomkovicz, The Endurance of the Felony Murder Rule: A Study of the Forces That Shape Our Criminal Law, 51 Wash. & Lee L.Rev. 1429 (1994)
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Chapter 15. Manslaughter; Suicide Assistance 138 results (showing 5 best matches)
- The modern criminal law problems relating to suicide concern the criminal liability of (1) one who unsuccessfully attempts to commit suicide, causing harm to no one else; (2) one whose unsuccessful attempt kills or injures someone else—a would-be rescuer or innocent bystander; and (3) one who persuades or aids or forces another to commit a successful suicide.
- See H. Weihofen, Mental Disorder as a Criminal Defense 189–92 (1954). Compare S. Glueck, Mental Disorder and the
- Criminal Law 259–60 (2d ed. 1960)
- Centuries ago it was stated to be the law that an unintended homicide in the commission of an unlawful act constituted criminal homicide; and later, when criminal homicide was subdivided into the separate crimes of murder and manslaughter, this type of criminal homicide was assigned to the (involuntary) manslaughter category. As time passed it came to be considered too harsh a rule, and the courts began to place limitations upon it.
- Doubtless it is better policy not to make such conduct criminal. Certainly one bent upon a successful suicide will not be deterred by thoughts of possible punishment. Moreover, “intrusion of the criminal law into such tragedies is an abuse. There is a certain moral extravagance in imposing criminal punishment on a person who has sought his own self-destruction * * * and who more properly requires medical or psychiatric attention.”
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Chapter 17. Rape 134 results (showing 5 best matches)
- While this Book is about substantive criminal law and not criminal procedure or evidence, sometimes consideration of the latter cannot be ignored. Such is the case with respect to the crime of rape, which traditionally has been attended by unique and especially demanding procedural and evidentiary rules. They are examined in Section 17.5, along with the matter of punishment.
- Certainly one basic concern by many feminists and others seeking law reform in this area was that distinctions drawn in the substantive and procedural law regarding the crime of rape reflected perspectives about the crime that had no contemporary legitimacy. Some of these distinctions, most especially the marital exemption rule, reflected the ancient notion that rape was a property crime and that violation was of the property rights of the woman’s father or husband. Another take on the situation was that many rape doctrines reflected not so much a special hostility toward women by the law, but rather the law’s hostility toward those seeking to be excused from criminal liability, which the rape complainant ordinarily was back when rape resided alongside adultery and fornication as criminal offenses. ...virtual disappearance of the latter offenses from the law. A variety of more modern justifications for the crime of rape were put forward, which explains why it is said that rape “is...
- Criminal Law 520 (1987)
- Criminal Law 219 (3d ed.1982)
- Criminal Law 525 (1987)
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Chapter 20. Other Personal Property Crimes 60 results (showing 5 best matches)
- , Comment at 128 (1980), dealing with the “long history of expansion of the role of the criminal law in protecting property. That history begins with a concern for crimes of violence—in the present context, the taking of property by force from the possession of another, i.e., robbery. The criminal law then expanded, via the ancient quasi-criminal writ of trespass, to cover all taking of another’s property from his possession without his consent, even though no force was used. This misconduct was punished as larceny.” The scope of robbery grew gradually: “formerly the offense seems to have been confined to cases of actual violence to the person; but in later times it has been extended to constructive violence by putting in fear, and not only to cases where property has been taken or delivered under a threat of bodily violence to the party robbed, or some other person, but also where the fear has resulted from apprehension of violence to the habitation and property, or has been...
- See J. Hall, Theft, Law and Society ch. 5 (2d ed.1952); Blakey & Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich.L.Rev. 1511 (1976) (discussing the sophisticated fencing systems now in operation and what changes in the substantive law are necessary to deal with them effectively).
- A strong plea for criminal statutes which distinguish between the professional receiver and the lay receiver is found in J. Hall, Theft, Law & Society ch. 5 (2d ed.1952). Nevertheless, few jurisdictions make the distinction which Professor Hall recommends.
- The common-law misdemeanor of extortion consists of the corrupt taking of a fee by a public officer, under color of his office, where no fee is due, or not so large a fee is due, or the fee is not yet due. Modern statutes continue to make such conduct by public officials criminal, generally under the name of “extortion”;
- American statutes do not generally spell out the eight elements; they define the crime of robbery in different ways, often in the somewhat undetailed language used by Blackstone, Hawkins, Hale and East in defining common-law robbery, e.g., “the felonious and violent taking of goods or money from the person of another by force or intimidation.” Some statutes specify a taking from the person of another “or in his presence.” Some states, especially those which have recently enacted comprehensive criminal codes, add more detail—e.g., concerning the type of fear that will suffice. At the other extreme, a number of statutes punish robbery without defining it, leaving the definition to the common law. Almost all states distinguish between simple robbery and aggravated robbery (e.g., armed robbery), the latter carrying a heavier penalty upon conviction.
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Table of Contents 54 results (showing 5 best matches)
Chapter 18. Confinement 59 results (showing 5 best matches)
- Kidnapping is also a very important crime in the federal criminal law. The discussion which follows centers around the general kidnapping statute, commonly known as the “Lindbergh law,” and the much more recent International Parental Kidnapping Crime Act of 1993.
- With the virtual disappearance of common law crimes in this country, the offense of false imprisonment came close to disappearing with it. By the time the Model Penal Code was promulgated, only a small minority of states had such a statutory offense. It is not entirely clear why this was so, but apparently it manifested a pervasive legislative judgment that wrongdoing of this general type need not be addressed by the criminal law except as it might fall within such offenses as kidnapping and assault. The Code draftsmen obviously disagreed with that conclusion and felt that substantial interferences with liberty, even when not attended by physical harm or even the risk thereof, were a proper subject for the criminal law. Hence there was included in the Code the offense of false imprisonment, simply defined as the situation where one “knowingly restrains another unlawfully so as to interfere substantially with his liberty.” ...thereafter adopting new criminal codes included an offense...
- The crime of kidnapping was not a significant offense at common law, but in its American statutory form came to be a quite broadly-defined offense carrying high penalties. The Model Penal Code approach to that situation was “designed to effect a major restructuring of the law of kidnapping” carrying lower punishment. The emphasis herein is upon the extent to which reform of the law of kidnapping along those lines has occurred in the state criminal codes.
- Perkins & Boyce, Criminal Law (3d ed.1982).
- . The Act looks to state family law for purposes of determining “parental rights,” and thus it is not necessary that the defendant’s conduct was in violation of the state’s criminal law. cannot be convicted of parental kidnapping” under state law no bar to defendant’s conviction under IPKCA, as family law of the state “recognizes both parents’ equal rights to custody of their children”).
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Index 74 results (showing 5 best matches)
Chapter 19. Theft 92 results (showing 5 best matches)
- For more on this history, see G. Fletcher, Rethinking Criminal Law chs. 1–2 (1978); J. Hall, Theft, Law and Society chs. 1–4 (2d ed.1952); Brickey,
- There is a split of authority as to whether a false statement of law (rather than of fact) will do for false pretenses—as where one induces another to buy stock by making the representation, which he knows to be false, that the stock is not subject to assessment. No doubt a clever criminal can accomplish a fraud as well by misrepresenting the law as by misrepresenting a fact; so that the better view is that intentional misrepresentations of law, done with intent to defraud, will do for the crime of false pretenses.
- For this basic premise of the criminal law, see § 6.3.
- that property may be the subject of theft even though the “victim” is a person whose interest in the property is unlawful. This is as it should be. “It is inconsistent with the objectives of the criminal law of theft to permit one who wrongfully appropriates wealth to escape from liability merely because the victim of the misappropriation has also incurred criminal liability of forfeiture of his rights with respect to the property.”
- And a clever criminal can defraud his victim about as well with a false promise as with other types of false statement of fact. —has been countered by the argument that the mental state involved in a false promise is as easily discoverable as many other states of mind recognized by the criminal and civil law, The modern prevailing view, by case law
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: June 30th, 2017
- ISBN: 9781683288817
- Subject: Criminal Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Major emphasis is placed on the basic premises of criminal law, including its sources and general limitations. This Hornbook provides detailed discussion on the topics of responsibility, justification and excuse, inchoate crimes, accomplice, and liability. Attention is also given to subjects such as causation, insanity, and conspiracy.