CRIMINAL LAW: The Issue of Public Wrongs

At earliest English law, because of a lack of legislative law and be­cause of a lack of a place and process to turn to, people were left to blood feuds for resolution of conflict. You hurt me, I killed you. Then your uncle killed me, so my dad killed your dad, etc.

The community got tired of this. The local baron was worried about the drain on his fighting force. And local religious leaders had a hard time putting a feud into theologically permissive behavior.

So, a "local law" began to appear, with an incentive to people to settle cases by compensation. People in conflict were "invited" to come and sit with others of a community to seek resolution of the conflict.

When the parties could not agree and no one could prove "truth", they were left without a remedy. To have a law is wonderful. To have a process is better. But no remedy means a law or process is of little value.

To determine truth, trial by "ordeal", "combat", or "oaths" was in­stituted. In "combat", each party got a sword, and fought it out under the theory that God would protect the innocent one. If a person was found "guilty", he, or his heirs, paid something to the injured party and sometimes something to the local baron.

With the Norman Conquest, the new king, intent upon consolidating power, established "King's Courts". Here an injured person (plaintiff) brought action against a wrongdoer (defendant). But all monies (fines) went to the king rather than to the victim; the king had to pay judges, keep an army (the police) fed and clothed, etc. Thus developed Crimi­nal Law, the key components of which are:

The king (state, people) is seen as victim. Crime is considered to be an act which the public desires not to be done, and which the public is willing to punish if it is done. It is a public wrong.

Because the remedy is punishment, some protections of the accused become necessary; we do not want to punish an innocent person. Thus, there can be no crime without a statute, and acts done before there is a statute are not criminal (ex post facto). The statute must set forth every material element of the criminal conduct (no punishment without a "knowledge"). However, we are all presumed to know the law.

The state must prove the defendant did the necessary acts (actus reus) beyond a reasonable doubt. This means that the balance scales must tip to their near maximum. Since punishment is the remedy, we want to be certain that we only punish the guilty, not the innocent.

Defendant must have done the acts with a level of knowledge (mens rea, guilty mind) declared in the statute. Over time, and in order of im­portance today, this necessary mental state was determined to be: inten­tional, reckless, or negligent conduct, or strict liability.

After conviction, the question is asked: What punishment should be to carry out the five purposes for punishment: reformation; restraint; retribution; and deterrence (individual or general).

Crime has three major parts: crime against person; crime against property; and crime against the public order.

A crime against person always involves force or threat of force against the body of another (murder, battery, rape, robbery, extortion, kidnapping, etc.).

Crimes against property are distinguished by an absence of force against a person and loss of property is the key (theft, embezzlement, false pretenses, forgery, burglary, arson, etc.).

Crimes against public order include rioting, treason, and most of the "victimless" crimes (prostitution, sale of pornography, drug deals, and, until recently, abortion). Violence to person or loss of property may or may not be present. What is present, is behavior seen harmful to the integrity of community to such an extent as to call for criminal punish­ment. Sometimes we see these as "moral crimes".

Intent has its own set of definitions:

Specific intent: Defendant has a determination of mind to commit at least one of the required elements of a criminal offense. Example: first degree murder normally requires proof of premeditation, which is a matter of intent found to be existent before picking up the gun, to do an act (shoot the gun) and bring about a result (kill the person).

Transferred intent convicts a person of a result, which they did not intend, but which was a result of the illegal act. Example: I intend to kill A by shooting, but miss and kill B, whom I love and would never kill. My intent to kill A is transferred to B; I am guilty of murder.

Implied intent: We are rational people, intelligent and understand­ing; so intent to do an act may be implied from doing of the act.

Strict liability: Here there is no need for a mental status. We are li­able for doing the act without defense. Example: sexual intercourse with a female under a specified age (statutory rape). Your belief con­cerning her age (even a reasonable belief) is no defense.

Let's look at some of the common criminal defenses. First, there are istakes of fact. I take a bag of yours at the airport thinking it is mine; we can say mistake of fact, but it really is lack of intent to steal. Or I buy an item not knowing it to be stolen, no intent, no crime. However, if its value is $100 and I pay $1 and the transaction is on a street corner, maybe I am unable to make the defense work for me. Any mistake of fact must be honest and reasonable.

Can my voluntary intoxication be a defense? Generally, no; it is an act of choice, negligent or reckless in character, so it is not allowed as a defense, involuntary intoxication may be a defense.

Another category of defenses is called justification. It includes self-defense, defense of others, defense of property, acts done under appar­ent authority, and consent. Self-defense is viewed from the mind and the person claiming the defense, not from the mind of a reasonable per­son. What this means is: we cannot second-guess the action after the fact; if there may have been several reasonable responses, and this was one of them then the defense is good. But the force I use in defense must be proportionate to the force you use against me. An aggressor cannot claim self-defense unless he terminates the conflict and then finds he must defend against the continuing attack of the other. Defense of others normally requires a prior relationship between the person be­ing attacked and the person claiming the defense. Defending one, who later proves to have been the aggressor, means you cannot claim the de­fense because that person could not claim the defense. Defense of prop­erty is very limited as to the amount of force you can use.

Acts done under apparent authority is a defense allowing public of­ficials (and those acting under their oversight) to possibly commit a crime and not be punished, if it was reasonably necessary to doing their job. Consent is a defense where the consent to act would have been il­legal, for example, I consent to your battery of me in a boxing match.

Another set of defenses is called excuse. Infancy, necessity entrapment and insanity are classic examples. Historically, infancy defense was avail­able to anyone under the age of 7; they were presumed incapable of form­ing the intent needed for a criminal act. From 7 to 14 it was presumed they could not, but the presumption could be overturned upon a showing of suf­ficient age and understanding. Above 14 they were presumed capable. To­day, in the U.S., we use Juvenile Courts to deal with people under the age of 18; however, for certain crimes, and at certain ages, youth can be re­moved from the juvenile system to the adult system.

Necessity (including compulsion, duress, coercion) is a defense where the act is acknowledged, and the criminality of the act is known in advance, but the person claims that they have no choice. The defense is not available in a homicide, very limited in crimes against persons, and normally only found in property offenses. There is involved a sense of emergency response to a situation, and the harm being prevented by the illegal act must be greater than the harm the illegal act causes.

Insanity only became a defense in 1843. It is a direct outgrowth of the issue of intent as is the defense of infancy. When first allowed it was only if one could not understand the difference between right or wrong, or did not have the ability to understand that an act was wrong because of mental disease or defect. It has since expanded to matters such as diminished capacity and irresistible impulse.

CRIMINAL PROCEDURE

In both criminal and civil proceedings, a document (Pleading) must be filed with the court to start a proceedings – called an Information in Criminal Law. The papers are filed for the State by a Prosecutor. The documents name a defendant, set forth the facts constituting the offense, the statute which has been violated, and the source of the information (confession, eyewitness, etc.).

The judge then issues a bench warrant to the sheriff for arrest of a defendant. The court cannot proceed further until the defendant is served with warrant plus information and affidavit service results in ar­rest, and the defendant is taken into custody.

Upon arrest, a day for the defendant to appear in court is set nor­mally within one week. At arrest, the defendant will be advised of: (1) the charge; (2) right to an attorney; (3) right to an appointed attor­ney at state expense if he can't afford an attorney; (4) does not have to say anything without an attorney present; (5) anything said can be used against him in court; and (6) right to bail, amount of bail, and way to post it. The defendant is allowed free phone calls to tell people where he is, and to arrange bail.

The defendant may be arrested before papers have been filed when the officer has probable cause to believe he has committed a crime. Then he will be told these same rights, except bail. But if a warrant is not secured from a judge filed within 72 hours, he must be released (he can be rearrested later, however).

At the first court hearing (arraignment) the court will:

Ask the defendant (1) if he has an attorney, intends to employ an attorney, or needs attorney appointed for him; (2) if he is prepared to enter a plea of guilty or not guilty; (3) advise defendant of his right to jury trial; (4) if the defendant says he wants to waive any right, court will examine him to see if he understands rights and effect of a waiver; (5) reconsider the matter of bail possibly by a pre-trial release report;(6) possibly set the matter for preliminary hearing or for omnibus hearing and/or set the case for trial.

If the defendant remains silent court will enter a plea of not guilty, set the case for jury trial, and appoint an attorney to meet and consult with the defendant.

Between arraignment and trial, the defendant has the right to dis­covery: to see investigatory file of prosecutor, take depositions of wit­nesses, view physical evidence, have special investigators appointed or expert witnesses hired to examine evidence and testify, right to compel people to come and testify (subpoenas), or produce tangible evidence, etc. He must tell prosecutor names and addresses of his witnesses, and certain special defenses (as alibi or self-defense). If the defendant is in­digent all necessary costs of defense will be paid by the state.

Between arraignment and trial, the prosecutor and defense attorney will engage in plea and/or sentence bargaining. There may be special pre-trial hearings on issues of the admissibility of evidence (such as a confession, evidence seized by a search warrant, etc.). There may be a preliminary hearing requested by the defendant to test the existence of probable cause. Court may set omnibus hearing with prosecutor and defense attorney to discuss if case is ready for trial. In criminal cases the judge keeps the case moving; in civil cases, the lawyers do.

If the defendant pleads guilty or is convicted at trial the court sets sentencing hearing and pre-sentence report (normally prepared by Pro­bation Department). The report will contain: criminal, educational, family and work histories of the defendant; statement of facts of the crime charged; and drug or psychological evaluations. The defendant gets to view report before hearing and can introduce evidence at hear­ing. Victims are often invited to hearing, and can give input on what they believe should happen. However, the court may be bound by a form of mandatory sentence.

If sentenced to prison, the defendant is sent to the Department of Corrections, which selects the actual prison. When released from prison he is placed on parole (likeprobation – periodic reporting to officer).

A purpose of jury was to keep citizenry informed about Tightness of the law as a check against tyranny of the law. That protection is break­ing down because of (1) inability of the jury to nullify the law; (2) fai­lure of the jury to know the penalty; (3) the dramatic increase of plea-bargaining; (4) the development of Administrative Law where there is no right to a jury trial. At the same time, confrontation of the offender is breaking down. Confrontation means: This is what you did; It was wrong; You chose to do it; Here is the hurt you caused; Here is what you must do to make the wrong right; Don't do it again. Without con­frontation there is little chance of reformation.

Problems are:

(1) lack of speed in the process; (2) plea bargaining; (3) lack of direct confrontation by victim; (4) prosecutor discretion; (5) change in defense attorney from counselor to upholder of rights rules, and process; (6) Ju­venile Justice System; and (7) highly adversarial nature of the process.

Results are: excuse, justification, rationalization and blame-casting of defendant rather than repentance.