Criminal Law Midterm Review

Punishment Basis of Criminal Law

1. Retribution
2. Incapacitation
3. Deterrence
4. Rehabilitation

What is Retribution?

The philosophy that offenders should receive the punishment that they deserve in light of the crimes they committed.
- legal revenge

What is Deterrence?

A punishment philosophy that assumes that behavior may be controlled and criminal behavior prevented by the threat of punishment. General deterrence strives to discourage criminality by other people by intimidating them with the punishment of an offender.


Within the criminal justice system, incapacitation is the response used when a person has committed a crime. By incapacitating the convicted offender, we prevent the individual from committing future crimes because he is removed from society and locked up

Reformation or Rehabilitation

Punishment philosophy that attempts to reform the offender through education, work, or other appropriate treatment modalities.

Mala in se

Evil in themselves
- Include crimes such as murder, forcible rape, robbery, aggravated assault, burglary, and arson-serious crimes that endanger human life or property directly.

Mala prohibita

Evil only because they are prohibited by law
- Acts that are considered criminal only because statutes have defined them as such.
- They are not universally regarded as criminal; they may not even be regarded as criminal by most people.
- Example: might b

3 branches of government

Executive, legislative, and Judicial.

Judicial Branch of Government

This branch has the power to try cases, as well as the power of JUDICIAL REVIEW, meaning that appellate courts may interpret the acts and events that occur in the other two branches, as well as in lower courts.

U.S. Court Systems

U.S. federal and state governments have separate courts . ( Look at chart in book). pg.9 Dual Court system


The lawful right of the legislative, executive, or judicial branch to exercise official authority .
- May be limited by geographical areas or by other classifications, such as subject matter, or crime categories.


Some courts may hear and decide only Misdemeanor (less serious - one year or less in prison) cases.


Some courts may decide only felony cases. (more serious and more than one year in prison).

Original Jurisdiction

A court may have original jurisdiction, which means that the specific court has the power to hear the case first.

Concurrent jurisdiction

Both courts have the power to try the case.

Appellate Jurisdiction

Some courts only have this jurisdiction and It is basically courts who hear cases that are on appeal from other courts.

Federal issue

A state court decision may not be appealed to a court in another state, but if it involves a federal issue, it may be appealed to a federal court and eventually to the U.S. Supreme Court.


In appeal court the Defendant is now called the appellant. He argues that the lower court made a mistake that prejudiced the appellant, who now deserves a reversal of the conviction (or a change in the sentence ).


The prosecutors label in appeal court. He/ she argues that no mistake was made at trial or, if it was, it did not prejudice the appellant.

Model Penal Code *

jurisdictions that have attempted a complete revision of their criminal statutes.

English Common Law

An understanding of English common law, from which many U.S. state and federal civil and criminal laws are obtained, is important to our understanding of U.S. laws. In general, the term common law refers to those customs, traditions, judicial decisions, a


Today most states have codified their criminal laws, meaning that they have reduced their customs, unwritten laws, and rules to written statutes. Thus they do not recognize an act as criminal unless it is included with the statutory law.

Substantive Law

Legal rights themselves are created and defined by Substantive Law

Procedural Law

The body of law that prescribes formal steps to be taken in enforcing legal rights.

Case Law

Case law is the body of available writings explaining the verdicts in a case. It is most often created by judges in their rulings, when they write their decisions and give the reasoning behind them, as well as citing precedents in other cases and statutes

Administrative Law

which consists of a body of regulations and rules that come from administrative agencies such as the Internal Revenue Service to which Congress and state legislatures have delegated the power to make and enforce rules and regulations. Mostly civil not cri


the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: 1) a judge may have discretion as to the a


Is the commission of an act prohibited by criminal law.

Two basic principles of U.S. criminal justice system

1. The government may not punish unless there is a law (statutory or common) providing that an act or a failure to act is a crime.
2. There is no crime without punishment.
There is no crime without punishment means that unless the state or the federal gov


a sanction is the punishment for a criminal offense. The criminal sanction for a criminal defendant varies according to the crime and includes such measures as death, incarceration, Probation, community service, and monetary fines.


An attempt to overthrow the government of which one is a member or a betrayal of the government to a foreign power. The betrayal of one's own country by waging war against it or by consciously or purposely acting to aid its enemies.

Petty Offenses (Petty Misdemeanors)

A minor crime, the maximum punishment for which is generally a fine or a short term in a prison or a house of correction.

Moral turpitude

which refers to acts that are base,vile, and immoral. A crime of moral turpitude is "an act or behavior that greatly violates moral sentiment or accepted moral standards of the community.

Bill of Attainder

define as a legislative act which inflicts punishment without a judicial trial. Only referred to the death penalty, and a bill of attainder involving lesser penalties was called a bill of pains and penalties.

Ex post facto act

in that the purpose o requiring sex offenders to register in the communities in which they live after they are released from prison to protect society, not to punish offenders.

Cruel and Unusual Punishment

The U.S. Supreme Court has interpreted it in numerous cases, particularly those involving capitol punishment. For example, when the punishment is not proportional to the crime for which it is imposed.

Due Process

This means that statues may not be defined or enforced in an unreasonable, capricious, or arbitrary manner. People charged with crimes have a right to be notified, to be hear, and to defend themselves against the charges.

Rights that are fundamental

Those include our most important rights, such as the right to free speech, to practice our religious beliefs and the right to privacy.

Equal Protection

Means that no person or class of persons may be denied the same protection of law that is provided to other persons or classes of persons.

Adversary system

In this system the prosecutor (representing the state and the victim) and the defense counsel (representing the defendant) oppose each other in trial if they are unable or unwilling to dispose of the case prior to a trial.

Inquisitorial System

is a characteristic of some countries, where defendants are presumed guilty and must be proven innocent. (In the U.S. it is innocent until proven guilty).

Burden of Proof

In trial on party has the burden of proof. In U.S. systems, in civil cases the person who brings the action must prove his or her case, usually by the standard of a preponderance of the evidence. However, the PROSECUTION must prove its allegations BEYOND



Elements of a Crime

In general, for an act to be a crime in U.S. criminal justice systems, 4 elements must be present.

4 Elements of a Crime

1. A criminal act
2. A criminal state of mind
3. Concurrence of a criminal act and a criminal state of mind.
4. Causation (one event will lead to the next)
When a criminal act or omission combines with a criminal state of mind to cause harm, criminal liab

Attendant Circumstances

Some crimes require this.
These circumstances are additional facts surrounding a crime.

Criminal Act (actus reus)
#1 criminal element

the term means a wrongful deed, that if combined with the other elements of crime, may result in the legal arrest, trial. and conviction of the accused. This definition eliminates the possibility of criminal punishment for one's thoughts.

A Crime Requires a Voluntary Act or Omission

a) A person commits an offense only if he is voluntarily engages in conduct, including an act, an omission, or possession.
b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of th

Corpus Delicti

which means, the body of the crime. It refers to the body or other material substance of a crime that constitutes the foundation of a particular crime.
The phrase corpus delicti might be used to mean the physical object upon which the crime was committed,

Corroborating Evidence

evidence which strengthens, adds to, or confirms already existing evidence.
Especially in cases like rape in which there were no witnesses to the alleged act, and it is crucial to proving a case.

Legal Duty

Legal duty is one imposed by statutory or case law or through an explicit or implied contract, such as the duty imposed on parents to come to the aid of their children, on physicians to aid their patients, or any duty imposed by such contracts as marriage


The state of mind referring to the willful commission of an act or the omission of an act one has a legal duty to perform.


Negligence refers to acts that a reasonable person would not do or the failure to do something that a reasonable person would do under the same similar circumstances. Negligence does not require a criminal intent.
-Ordinary negligence is sufficient to est

mens rea

is used even in popular writing to refer to criminal intent, yet it is one of the most debated and frequently litigate terms in criminal law. Its literal meaning is " a guilty mind".


Proving that a defendant intended to commit a crime is not always an easy task, but the law permits an inference or intent from relevant facts.

Circumstantial Evidence

If sufficient circumstantial evidence (Evidence of facts other than those on which proof is needed but from which deduction or inferences may be drawn concerning the facts in dispute) is presented, they jury may be permitted to infer intent from that evid


Intent must be distinguished from motive. Motive refers to the why of a defendant's actions. Example, hungry parents who steal bread from the local store may do so to feed their families, but that motive does not negate the crime, although in some case ne

Year-and- a- day rule

If a person with the requisite criminal mind struck a victim on the head with the intent to kill but death did not result until later, that person could be charged with murder (assuming sufficient evidence of all other elements of murder) as long as the v

Causation in Criminal Law*

a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the act

Substantial Factor

But if the crime is a substantial factor (one that a reasonable person might conclude was sufficient to support the resulting injury or death) contributing to that death, it may be judged the legal cause.

Intervening Act

The act of another person can be an intervening act (one that occurs after an alleged criminal act and the resulting injury) constituting the legal cause- or at least a contributing cause- of the death. For example, a person with menus rea for murder who

Attendant Circumstances

are facts surrounding an event. This mean that a criminal may not be prosecuted as a crime- even if the guilty mind is present and the act caused the injury, death, or property loss- unless the specified circumstances coexist with the act and guilty mind.

Three categories of liability without fault

Criminal culpability is imposed in some situations even though no fault or evil intent can be shown on the part of the accused. The three categories of lability without fault - strict liability, Vicarious liability, and enterprise liability are justified

Strict Liability

is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other

Statutory Rape

Statutory Rape (sexual intercourse, or, in some jurisdictions, other sexual acts as well, with an underage person even though that person allegedly consented) is also a strict liability offense in most jurisdictions.

Strict Liability crimes and crimes involving mental culpability

Voluntary act: The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If such conduct is all that is required

Vicarious Liability

In contrast to strict liability , dispenses with the requirement of the acts refs and imputes the the criminal act of one person to another.

Enterprise Liability

Under common law, cooperation could not be charged with crimes. This position rested on the argue,met that corporation has no mind (thus there could be no intent) and no bodies (thus there could be no imprisonment).

Chapter 3


Inchoate crimes

Anticipatory, uncompleted, or incipient crimes. These crimes are important not only because, in and of themselves, they are threatening but also because they may lead to other crimes. Because inchoate crimes are considered threats to society, it is import

Attempt Crime

An act involving a step toward the commission of a crime and a specific intent to commit that crime?


The asking, inciting, ordering, urgently requesting, or enticing of another person to commit a crime is known as solicitation. The solicited crime does not have to be committed for the crime of solicitation to occur. Perhaps the most familiar solicitation

Elements of Solicitation

the crime of solicitation has essentially two elements:
1. An act: commanding, encouraging, or demanding that another person engage in conduct that constitutes a crime.
2. An intent: having the purpose of promoting or facilitating that person to commit a

Defense to Solicitation

1. Notifying the person solicited
2. Giving a timely warning to law enforcement authorities or otherwise making a reasonable effort to "prevent the conduct or result solicited.

Difference between attempt and solicitation

An attempt crime requires that the actor go beyond mere preparation to commit a crime, and this is not true of solicitation. According to one court, " To constitute an attempt there must be an act of perpetration (to perform).

Elements of Attempt

1. A criminal intent
2. A criminal act

Difference between preparation and prepertration

is of critical legal significance in that, unless perpetration has occurs, there is no criminal attempt.

Aid and abet

assisting or facilitating the commission of a crime

Defense to Attempt

1. Abandonment
2. Impossibility

Factual Impossibility

A more plausible defense to attempt.
- Meaning that there are circumstances, unknown to the actor, that prevent the commission of an attempt.

Legal Impossibility

No crime would have been committed even if the defendant's intentions had been fully performed or set in motion.

Inherent Impossibility

usually illustrated by the hypothetical cause of the doctor who comes to the United States from another country and attempts to use voodoo to kill a person. Because murder by voodoo is impossible, the doctor should not be charged with attempted murder, ev


Like solicitation and attempt, conspiracy is an inchoate crime. Conspiracy means agreeing with another to join together for the purpose of committing an unlawful act or agreeing to use unlawful means to commit ab act that would otherwise be lawful. The un


An English lord stated that an indictment for conspiracy required that a defendant must be charged either with conspiracy "to do an unlawful act or a lawful act by unlawful means." Although the word unlawful could have been understood as meaning criminal,

Conspiracy in the first degree

A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class.
A felony (the most serious of felonies) be performed, he, being over eighteen years of age, agrees with one or more persons under 16 years of age to

Conspiracy in the 6th degree

A person is guilty of conspiracy in the 6th degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.