Criminology Notes PDF

8/29 Criminology: 3parts Criminalization -- study of creation and application of criminal law without violation as a criminal law, there is no crime covers, legislatures passage of criminal codes, criminal courts; determination of guilt, police; determination of whether a criminal law was broken ,...

8/29 Criminology: 3parts Criminalization -- study of creation and application of criminal law without violation as a criminal law, there is no crime covers, legislatures passage of criminal codes, criminal courts; determination of guilt, police; determination of whether a criminal law was broken , which law was broken, and whether probable cause exists for the breaking of law and whether probable cause exists for arresting a suspect Criminality - the study of criminals and the correlates and causes of their criminality Corrections -- the study of the punishment and rehabilitation of criminals - people who have been guilty of convicting crimes corrections is divided into two. Parts: community corrections 1. Probation and parole 2. Correctional institutions (total institutions) a. Jails divided into men/women/juvenile b. Prisons divided into minimum/medium/max/super-max security Sources (origin) of our criminal laws 1. Constitution: written document which sets general organization of gov a. (Executive legislative to judicial branches to the authority granted to them. US or federal constitution is law of the land in special sense that it is highest court in the nation, which is higher than state supreme court, constitution creates from constitutional convention b. Article 1, section 9, which prohibits the passage of ex post facto of criminal's laws c. Void law for vagueness, can't understand application 9/3 Sources of Criminal Laws 1. US Constitution: created during special constitutional conscience, constitution includes "Bil of Rights" -- first 10 amendments to our constitution are the sources of our criminal procedures 2. Legislation: federal legislation (congress) passes federal laws, state legislation or assembly pass state laws 3. Administrative regulations: where federal or states legislative houses delegates authority to their governmental agencies to create written regulations for operating their specific agencies 4. Case law are decisions made in state or federal appeals courts that are published in federal or state case books. These decisions supplement the legal codes published by state or federal government 5. Criminal law: the original or early case law developed from great rings books Codification Movement 1. Displacement of common laws by penal codes, in some states case law remains, even though a penal code exists. Just in case, a crime was overlooked in early penal code (common state law). In most states, all crimes are stated in penal codes (non-common law states) 2. Creation of model penal: an ideal statement as penal laws, which serves as a legal reverence for state legislative drafting committees Basic divisions of law: - Civil vs criminal law - Torts: civil violations, dual violations of laws, unlawful acts which are both criminal to civil of senses Dual Violations - Actions which are simultaneously both tort (civil law) & crime (violation of criminal law) 9/5 Criminal vs Civil Law Criminal Law - State vs. defendant - Essex county V Atkins - State represented public official: district attorney (prosecutor) - Defendant represented by private attorney - Purpose: punish people for engaging in wrongful activities that deserve higher condemnation Civil Case - Citizen v. citizen - Complainant v. defendant - Both parties are represented by private attorneys - Purpose: resolves conflicts between citizens to where appropriate; compensates wronged parties for any damage suffered to their property or selves: "award danger" - Judge serves as neutral judger of facts and interpreter of civil bearing on case Classification of Crimes - Federal vs. state crimes determine both by geography or subject matter Federal Crimes 1. Misuse with federal services which can cut across state lines 2. Protect private institutions in which federal government has special interest: Banks defense industries 3. Infringement as federal regulations -- interstate commerce includes criminal enterprises Types of Crimes - Felonies vs. misdemeanors - 1\. Affects court in which crimes are true - 2\. Affects size as jury - 3\. Affects steps in criminal procedure , \# of separate steps - 4\. Affects length of potential punishment - 5\. Affects criminal record - Hierarchy of punishment more serious crime, the higher potential punishment, felonies higher more potential punishment, misdemeanor lower the punishment. Punishment includes fine, probations, incarceration - Mala in se crime inherently wrong or evil - Mala -- prohibitor crime, not inherently wrong or evil 9/10 3 Specific legal elements of crime. - All crimes have specific elements, which the state must prove beyond a reasonable doubt existed for a defendant can be found guilty of its commission. Of course, crimes can vary on the basis of what constitutes each element in their case (for murder vs. theft or forcible rape) - Each Is necessary for finding guilt, but all elements must be present to be sufficient for this finding - Element "Actus Reus" Latin for act of criminal that is the doing of the prohibited. However acting reus can include a act of commission as prohibited act (as an motive act) but in some special cases acts of - failure to commit a proscribed act, so strictly speaking you can be found for committing a proscribed act or failure to commit a proscribed act. Something that you should have not done or something you should have done, but did not do 3 key features 1. Includes deeds, but not mere thoughts a. 3 justifications i. It is difficult to determine people's thoughts reliably ii. Even if you determine this it would remain to further determine whether thought was serious or idle thought iii. Mere thoughts do not harm anyone, thereby it would violate 3^rd^ element of crime (harm & causation) iv. Must be stated in the law that you have had that duty to act v. Must be stated in law which relationships required you to perform that duty 1. Contractual relationship/familiar relationship 2. Its inclusion of acts of commission or omission, the former is most common 3. To establish actus reus. The act must have been voluntarily, not involuntary act in which person did not exercise conscious control over. Voluntary induced involuntary act-which could be found guilty Voluntary act: The act committed must be a volunteer act over which the defendant had conscious control over; otherwise it is involuntary act 1. Reflex act: movements during a seizure 2. Act committed which under hypnosis, or while asleep II\. Mensrea: second necessary element of crime - Mind of criminal. Old legal maximum: the of doer is also need to make them culpable (blameworthy of the crime) Degrees of Mensrea: 1. Purposefully acted to bring about the harm 2. Knowingly acted to bring about harm 3. Recklessly acted to bring about harm 4. Negligently acted to bring about harm 9/12 Element 1 Mens Rea - Latin men's = mind, rea = state of - So, "state of mind" - degree required varies from crime to crime, only exception: "strict liability crime" does not refer to "motive" -- reason for committing of crime as used in case "motive, opportunity, to unity" used in narratives of crime "used in opening and closing arguments". Today 4 different degrees of men rea are recognized (evil mind); purposefully, knowingly, recklessly, to negligently, but earlier there were only 2 degrees recognized. Specific to general intent crime Active purposefully/acting knowingly -- specific intent Acting recklessly/acting negligently -- general intent 3 questions must be asked to answer to determine 1. was person aware of his immediate physical actions 2. the immediate operating circumstances surrounding commission of crime 3. " " " " of the harm that his physical actions would cause? Higher degree of mens rea the " " of culpability or blameworthiness for criminal to consequently the greater the punishment deserved for acts commission 1. Acting purposefully a. Aware of his physical conduct b. "Circumstances surrounding her physical conduct c. Knew harm that her conduct would cause to that harm was her conscious objective, transferred intent rule, the harm person intended need not been done to specific person intended to perceive that harm but to anyone 2. Acting knowingly d. Aware of her physical conduct e. A " " of circumstance surrounding her conduct f. A had practical certainly that her conduct would cause that harm, but that harm was not their exploit objective 3. Acting Reckless g. Defendant was aware of her physical conduct h. Defendant was aware of the risk that circumstances surrounding her conduct, but nevertheless she engaged in that conduct, which a reasonable person not have engaged in under the same circumstances 4. Acting negligently i. defendant were aware of his physical conduct j. defendant was not aware of the risky circumstances surrounding that conduct, which a reasonable person under those same risky circumstances so defendant acting acted negligently which a reasonable person would have been aware of 9/17 3^rd^ element of crime Harm and Causation Required Injury - in order for an act or an omission to be a crime it must harm subject matter protected under the law (recoiled actus reus). - 5 protected subject matters: - Bodies of citizens - Property of citizens - Government - Community - Person himself (victim less crimes, Types of inchoate crime 1. Solicitation to commit 2. Conspiracy to commit 3. Attempt to commit a. 3 elements b. Intent (on purpose to commit) c. Sufficient overt act or pursuance of intentions) d. Failure to commit test for attempt to commit e. "Person must engage in a action that goes beyond there preparation to tends to effect the commission of crime intended" must avoid criminalizing mere thoughts Causal relationship: must be shown that person conduct brought about the harm to protected subject matter. More precisely that person conduct was "close enough in time & space" to be considered as cause of the harm, determining "proximate cause" 1. test one: "but for person conduct harm would not have occurred" 2. sufficiently close in time and space to be considered proximate cause of harm 5 typical facts that courts rely on to make this decision 1. whether person intended to inflict serious harm 2. whether serious harm was foreseeable from persons actions 3. whether person conduct inflicted actual harm 4. whether an intervening harmful event was a product of natural processes or actions of a third party 5. whether harm inflicted by intervening event acted of its own force or in conjunction with original in causing serious harm Accomplice liability: refer to the aiding or abetting the person who brought about the harm Under common law - 4 degrees: special provision: person who cause the harm, the principal must be conducted before his accomplices could be tried - 1^st^ person who actually committed crime - 2^nd^ person present at scene who aided/avoided its commission - 3^rd^ person who aided or abetted was not present at the scene - 4^th^ accessory asserts the fact who knew crime had been committed Under modern law 2 degrees. No special provision - accomplice in first degree - combines all three felons to subject to same degree of crime and punishment (exception for trigger man in capital cases) - misdemeanor accessory after the fact 9/19 Defense - defenses relieve people of criminal liability despite state demonstration beyond reasonable doubt of existence of all elements of crimes. State not required to negate a defense unless person raises it. there are 2 types of defenses, these based on person mental conditions - age, intoxication, mistake and extenuating circumstances a) consent b) duress c)entrapment d) violation of statute of limitations - defenses based on neutral condition: lack of person capacity to understand what he was doing at time of defense to control conduct (voluntary) 1. age: because of lack of mental maturity to understand actions that person did -- he/she should release of criminal liability because the required means rea was absent a. under common law: child under 7 could not found guilty of a crime: non-rebuttal b. 7-14: adolescent could not be found guilty of crime, but assumption was rebuttal c. Modern law: creation of juvenile ct. statue which gave jurisdiction of children uner age usually 18 to juvenile court i. Exception is child 14 or over committed serious felony, jurisdiction could be waved to adult court. ii. No child under 18 could be charged in capital murder 2. Insanity defense: covers usually both mental illness to defense d. 1^st^ wild beas 1 test: to escape punishment must be shown person knew no more than a wild beast would" mental retardation e. 2^nd^ M 1 Naughten rule: person knew nature, quality, to wrong of act, but by person of f. Could not distinguish between right and wrong at time of act irresistible impulse test may be used to supplement m1naghten rule in some jurisdiction standard, person knew nature, quality to wrongfulness of act, but because of mental disease lost the power to resist committing crime -- loss free will number of times that you commit the offense can no longer be used as 9/24 Durham Rule for Insanity (1954) - If unlawful act was a product of mental disease or defect at time of the crime, then person was not guilty by reason of insanity. - Standard: product of mental illness favored by psychiatrists/disfavored by judges + prosecutors - The rationale for this standard insanity should be determined by functionality of personality, not operation of cognition or interact or impulse control only. Overturned MPC Rule (1972) 1. A person is not responsible for criminal conduct if at time of such conduct as a result of mental disease or defect, he/she could not appreciate (or understand) wrongfulness of conduct or conform his conduct to law. 2. Repeated commission of crime alone cannot prove mental illness or disease. Most states today use a combination of M'Naught rule to Irresistible Impulse Test Intoxication Defense - Under original common law, intoxication was not recognized as defense or excuse for crime, but only as an aggravating factor to enhance punishment for another crime. - Modern day: 2 types unvoluntary Intoxication (non-self-induced) where person was tricked (deceived) or physically forced to ingest alcohol. Possible for all crimes no matter mens rea as long as it fulfilled (insanity requirement under MPC formulation) - Voluntary Intoxication: (self-induced) defense or excuse for only crimes requiring person to purposefully or knowingly commit crimes, not a defense for crimes only requiring people to Mistake Fact Defense - Honest, reasonable mistake negates mens rea for all crimes - Dishonest mistake does not negate mens rea for any crime - Honest, but unreasonable mistake only a defense for crimes requiring person to have acted purposefully or knowingly, but not recklessly to negligently - Mistake of haw: Ignorance of law of was not a defense under original common law, but under model penal code (modern) law it is a defense where law is not known to person, to has not published or otherwise, made public, or where person relied on a mistake statue law or legal instruction stated in statues administrative order or 9/26 Defenses based on the pros of the existence of special extenuating circumstances person argues that I admit doing the prohibited act, but bc I committed under special extenuating recognized under law, I should be relieved of criminal liability for my actions. 4 such defenses 1. Consent Defense: a consent defense is possible only when affective defense is given to when it negates the harm which offense was designed to prevent ineffective consent, is when it given by person who is a. Legally incompetent b. Underage, suffer from mental disease or defect or intoxication c. Subjected to force, duress, or deception - Exceptions - No serious injury - Person conduct has beneficial results - Society condones activity, even if serious harm results 1\. Duress (compulsion) defense which includes necessity. When person is threatened w serious physical harm by another(which may include "nature" unless he/she commits the crime, 5 prerequisites must be satisfied - Threaten harm must always be great bodily harm - Threaten harm must always be \> than harm committed by performing crime (lesser of 2 evils) - Threaten harm must have be substantial enough to induce a reasonable person to committed crime under same circumstances - Threaten bodily harm must be imminent ruling out escape or official intervention - Person must not have recklessly or negligently placed himself in situation where it was probable that he/she could be subject to threaten bodily harm Entrapment: where a person committed crime as a result of encouragement of an under cover gov agent posing as a willing participant in criminal act. (roughly analogous, where gov agent applies duress) two prong test that requires prongs be satisfied 1. Idea for committing crime must have originated from gov agent 2. Agent subsequently used tactics to induce person to commit crime that he/she was not otherwise disposed to commit It is legal to furnish opportunity for a person to commit a crime that he/she was already pre-disposed to commit. Statue of limitations has been exceeded for prosecution of person for crime. (criminal prosecution is "out lawed") Time clock starts with time crime was committed (or discovered) until grand jury indicts person or prosecutor files an information with trial court, tolling period: time not counted bc person cannot be located. Not same as the violation of right to speedy trial granted under bill of rights, more serious the crime = the longer statute of limitations 10/1 Major Crimes Against Person - Homicide derived from Latin - "homo" means human, "cide" means to kill, so term means killing of one human being by another - Non-criminal homicides: all homicides do not people criminal liable: 2 kinds of non-criminal homicides - 1\. Excused. A killing which is not intentional and for which there is no criminal recklessness or negligence involved - 2\. Justified. A killing which was intentionally committed, but is justified under law (ex: self-defense, which requires stringent requirement be satisfied. Criminal Homicides: 3 elements 1. Death of human being 2. At hands of another 3. Without legally excuse or justified under law - Three elements constitute "corpse delicti" of the crime (not body as deceased) all crimes have corpse delicti, but they differ in context. More precisely, refers to "actus reus" to "harm causation of crime" - Death now defined as cessation of brain waves, not stoppage of heartbeat Key Questions of Medical Inquest - Not whether victim died, but whether his loss of life was result of his own actions or someone else's actions that were not justifiable or excusable under life. - 5 types of criminal homicide: - Capital murder, 1^st^ degree murder, 2^nd^ degree murder, voluntary manslaughter, involuntary manslaughter - Body not required to proceed with case, but it is advisable. If body is available, then C.O.D. must be determined - Assault and battery under original common law, 2 separate crimes 1. Battery: intentional or recklessly touching of another without excuse or justification law. It includes a. Any offensive touching b. No significant blow required c. Need not be done by body part (projectiles) d. Need not be intentional or purposefully done 2. Assault: an attempt plus present ability to commit a battery (ex: missed punch) e. 3 factors used to raise simple a+b (misdemeanor) to aggravated a+b (felony) i. Severity of injury ii. Use of dangerous weapon iii. More capable mental state: from reckless to intentional Refinements added: "menacing" which is where person intended to frighten victim "mayhem" which is where battery disfigures victim or causes them to lose a body part or function of body part Legal principles governing use of non-deadly force excused under law is 1. Consent granted to no serious injury is caused 2. Consent is not granted but touching not offensive justified under law 1. For prevention of felony 2. For 3. For protection of property (both personal to real) including trespassing 10/3 Under original common law forcible rape has 3 elements 1. Sexual intercourse by a male with a female 2. Against will of female(without consent) 3. Achieved by force or threat of force First element: sexual intercourse: defined as penetration of female reproductive organ by male member or organ, slightest penetration suffices to no emission required Excludes forcible intercourse between husband to wife (aka: marital exception rule) Rationale for marital exception 1. When women marries, she consents to sex on husband demand 2. Permitting rape within marriage encourages unhappy wives to press false charges against husband 3. State's intervention in sexual intercourse between husband to wife discourage reconciliation 2^nd^ element: Against will of woman, le without effective consent: Rules for determining: 1. Utmost resistance rule within inch of life 2. Resistance must be only appropriate to circumstances as defined by a. Relative strength b. Display of weapon c. Futility of persistence 3. No physical resistance needed, if it is self-evident that it would be futile under circumstances Special corroboration requirements 1. Medical evidence of penetration 2. Physical signs of struggle 3. Timely reporting to emotional condition of victim at time of reporting Evidence of consent: - Victims attire, past history of sex outside of marriage, past consensual sex with offender Mens rea of Rape - US: person acted recklessly or negligently with regard to obtaining victim's consent - In Britain, mens rea is that person acted purposely or knowingly, regina v morgan Element 3 - The use of force beyond needed for mere penetration to achieve sexual intercourse force maybe "actual" or constructive "constructive" = threats to kill, seriously injure or kidnap victim Present day reforms 1. Abolish marital immunity (NJ) 2. ex: no corroboration requirement required (but recommended) 3. enactment of rape shield laws 4. includes all sexual penetrations -- oral, anal, vagina 5. shift emphasis from consent to use of force Statutory rape 1. proof of sexual intercourse 2. age of victim prevents affective consents (no force necessary) Aggravating factors - age difference between victim and offender -- larger more serious Under original law 1. female under 12 Other sexual were consent is given to no force used 1. incest 2. prostitution 3. adultery 4. soliciting prostitution sex crimes less serious than rape - indecent liberties with minor fondling of private parts without valid consent or use pf actual or constructive force 10/8 Under Original Common Law, False imprisonment had 3 elements 1. person secretly confined or restrained liberty or freedom of movement of person 2. act done without consent of another 3. person had no lawful authority to confine or restraint victim kidnapping had 5 elements 1. seizing, 2. Confining, 3. Asportation (carring away), 4. Another, 5. By source, sarod, or deception Under MPE Kidnapping 1^st^ person if person 1. holds victim for ransom reward 2. to facilitate commission any felony or flight there after 3. to inflict bodily injury or terrorize victim 4. to interfere performance of governmental function Kidnapping 2^nd^ person is person voluntarily release person alive to in safe place before trial. Kidnapping 3^rd^ is person 1. restrains another unlawfully in circumstances to risk of serious injury or (2) holds another involuntary servitude Major Crimes Against Property Preliminary Distinctions 1. Real property (unmovable personal property (normally movable) (one can be converted into other), property crimes can refer to real or personal property (sometimes both) 2. Ownership v. possession, theft crimes are crimes against possession. Possession refers to right to exercise control over property whether or not owned by person. Possession can be actual or constrictive, Actual possession: when owner exercises dominion over property. Constructive possession: when, property is outside of owner's immediate control, but he returns right to control or exercise dominion over it. Possession can be transferred to another person including actual possession for a period of time owner can steal own property. Theft offenses 1. Larceny (personal property) Under common law, three elements 1. Taking of personal property 2. From actual or constructive possession of another 3. With knowledge that property belongs to another with intent to permanently deprive person permanently of that property 10/8 Robbery: crime against property Under original common robbery it had 3 elements: 1. Larceny 2. With property taken from the victim or immediate vicinity of victim 3. With taking accomplished by mens of force or threat of force With respect to element 1, larceny must be completed, but claim of right defense to mistake of fact maybe thereby used as a defense 2. Property need to be on or attached to person 3. Threat of or actual serious bodily injury not required. If force was used after taking to ensure escape with property -- it fulfills use of force requirement Aggravating factors 1. Person armed with dangerous weapon 2. Person intended to wound or kill victim if resistance was encountered 3. Person actually killed or wounded victim Burglary, under original common law, 4 elements 1. Breaking and entering 2. A residence 3. In night time 4. With intent to commit a felony Under modern statue, burglary has only 3 elements 1. Knowing entering or illegal trespass 2. Building or similar structure (usually requires 4 walls to roof) 3. With intent (purposefully or knowingly) to commit another crime, which maybe a felony or misdemeanor With respect to element 2. May include watercraft or motor vehicle, if designed for over nigh lodging With respect to element 1, knowingly refers to person knowing that he did not have a right to enter building. (without authorization. Unauthorized entry must be done with intent to commit another , so burglary is a dual crime) Degrees of Burglary (aggravating factors) 1. If done at a dwelling whether or not occupied at time or any lodging place: hotel/motel 2. If done at night 3. If done while armed Arson: under original common law 1. Intentional burning 2. Dwelling or home belonging to another Under modern law 10/17 Arson: Common Elements under Original common law 1. Intentional burning of a dwelling of another (real property) Under modern law 1. Intentional or reckless burning or explosion 2. Building of another (definition similar to burglary) 3. Under limited circumstances of building owned by person (if done for insurance fraud) Arson is considered dangerous felony and if someone killed, it converts the killing to a felony murder which makes person guilty of 1^st^ degree murder to eligible for capital Aggravating factors 1. Occupied building or one likely to occupied 2. Fire or explosive set purposefully 3. Burning or explosion designed to defraud insurance carrier Mitigating factor 1. Explosion or fire set recklessly Exam tips: 1. Look for questions asking about elements of crimes to differences between original common law to modern law 2. Look for correct element of a law, but not for law questioned about 3. Look for questions in which you are asked to place your self in shoes of D.A. or defense attorney and asked about best defense to raise on behalf of person or highest crime that person can be charged with given the fact situation under consideration. 4. Look for distinctions between basic criminal law concepts such as felony, misdemeanor, mala In Se, Mala Prohibit crimes degrees of crimes, aggravating to mitigating factors, to torts and crimes. Defense which would impossible raise on behalf of person under fact situation