Criminal Law Study

Law school study of criminal law falls into three categories: substantive, procedural, and constitutional. Substantively, you will be involved in determining what actually a crime is; procedurally, in the details of prosecution; constitutionally, in the protections set up for the defendant because the state or federal government is the plaintiff in the lawsuit.

Practically all intentional torts against individuals or property are crimes in most jurisdictions. Negligence too may be a crime under certain circumstances. Generally, you will be exposed to the idea that, if conduct is grossly without care (reckless), it may be a crime. Most students are unaware, however, that a great deal of all criminal business, in terms of arrest and action taken, is due to negligent conduct by the defendant. Consider for a moment how many traffic tickets have been received because people did not notice a speed limit or a stop sign, or unintentionally violated some other part of a state's Vehicle Code. These and other minor crimes are called misdemeanors; the more serious types of crimes are called felonies.


Classically, at common law, crimes were thought of as malum in se, those inherently wrong because of their evil nature, and malum prohibitum, those prohibited merely because of some statute. Malum in se crimes required the prosecution to prove a specific intent on the part of the defendant to commit the crime. Malum prohibitum only required proof that the defendant knowingly committed the prohibited act. Much of your first year will be spent grasping concepts like this.

You will spend several days studying the difference between attempts to commit crimes and actual commission of crimes. For example: A, clearly intending to kill B, hides along a lonely stretch of road one night, rifle in hand, waiting for several hours. Although no one is anywhere in the area, A mistakes a moving tree branch for B and shoots at it. Assuming that these facts could be proven, has A committed attempted murder? Change the facts just a little: C conies walking along and A shoots and kills him, thinking it is B. Change them again: B comes along alone, A points the rifle, but alters his plan and does not shoot. Let us try one more. A points the rifle but just as he shoots at B, a deer runs across the line of sight and is hit by the bullet.

The legal rule that ties these cases together (put into the verbose jargon of the law) is that an attempt is itself a crime if (1) there is a present intent coupled with an apparent or an actual ability to commit a crime; and (2) some overt act is done toward the actual commission of the crime. Generally, the punishment for an attempted crime is less severe than if the crime is actually committed. You might try testing each of the foregoing examples against this rule to see whether you think a conviction for attempted murder would stand up on appeal.

Opposite Verdicts

One of the reasons for the wordiness is the desire to be as precise as possible, so that at least those persons having to apply a rule will do so with consistency. Law is far from an exact science, however, and there frequently are opposite verdicts when two persons are charged with the same crime, and even when the same person is tried twice because of some procedural error in the first trial.

A, suspecting he is being set up for the sale of heroin to an undercover narcotics agent, passes ten bundles of a mixture of white flour and milk sugar in exchange for a purchase price agreed upon. Here there is an intent to cheat, not an intent to sell a narcotic substance (even though there was an intent to make a buy), and there is no present ability to consummate the transaction. (No contraband passed between the parties.) The traditional analysis would be that A could not be successfully prosecuted for an attempt to sell heroin. However, he could probably be prosecuted for obtaining money by false pretenses, or larceny by trick and device. Interestingly, because of this legal distinction, many states have passed "turkey laws" making it a narcotics crime to sell imitation narcotics to police agents.

Look for intent-ability questions on law school and bar exams, especially in a question such as, "What crime or crimes, if any, has A committed?" In this type of question, be aware that, if two or more people are engaged in a course of possible criminal conduct, the examiner may want you to discuss the existence of the crimes of solicitation (asking someone to commit a crime); conspiracy (agreeing with someone to commit a crime-conspiracy to commit a misdemeanor is a felony); aiding and abetting (being present and helping in some way but not actually taking part in the crime itself); accessory before or after the fact (being absent, but participating in the crime by ordering it to occur, advising in its commission, instigating it, or hiding the criminal afterwards); or compounding a felony (victim agreeing not to prosecute in exchange for reparation, or accepting a bribe not to testify).

In the substantive law of crimes, you will also be exposed to various crimes and the elements of each. You will find a number of crimes divided into degrees, first degree being the most serious.

The distinction between first- and second-degree murders gives some students trouble. Generally, first-degree murder requires (1) a specific intent to kill the victim, (2) deliberation (considering in advance whether to perform the deed), and (3) premeditation (making plans to act). Second-degree murder occurs when intent exists but deliberation or premeditation is lacking. Allied with these concepts is the felony murder rule: 11 during the commission of a felony, someone is killed, even unintentionally, each of the criminals involved can be charged with first- or second-degree murder, depending on the jurisdiction.

A, a burglar, is apprehended in an unlit store. As he is climbing to the roof trying to escape, an officer shoots at him. The bullet kills A's partner B, the lookout. A can be charged with felony-murder.

The next step down from second-degree murder is voluntary manslaughter. The intent to kill exists, deliberation and premeditation are absent, but mitigating circumstances (generally some provocation) exist which make for a lesser crime. If there is no intent to kill, but the defendant acts with extreme recklessness, he or she may be charged with involuntary manslaughter.

In summary:

First-degree Murder: intent, deliberation, and premeditation exist.

Second-degree Murder: intent exists; either deliberation or pre-meditation absent.

Voluntary Manslaughter: intent exists, but crime occurs during heat of passion.

Involuntary Manslaughter: no intent, but extreme recklessness.

Old courthouse habitués like to tell the story about the friend of a defendant in a famous murder case who bribed a juror to hold out for voluntary manslaughter. After several hours and many ballots, voluntary manslaughter became the verdict. As the juror was being paid off in the back of a nearby bar, he boasted, "This was really a tough one. The rest of the jury kept voting for acquittal, but I finally wore them down."

Aside from homicide, you will also study such crimes as assault, battery, robbery, mayhem, rape, kidnapping, and the various types of larceny (theft, embezzlement, and false pretense, trick).

Many people are unaware of the difference between burglary and robbery. Burglary is the entry of a building with the intent to commit some crime; robbery is theft from the person by force or violence. At common law, for burglary to occur there had to be a breaking and entering of a dwelling house in the nighttime. Today, in many jurisdictions, a burglary occurs if there is any entry into any building at any time with the intent to commit some crime. For example, people have been convicted of burglary for going into a department store with the intent to use a fraudulent credit card. Some states make breaking into a locked car to steal something burglary.

You will also learn certain substantive defenses for crimes. You may be surprised to learn that psychiatrists strongly object to the term "insanity" because it is a legal, not a psychiatric, concept. The legal insanity test, based on an old English case, is the "McNaghten Rule," which essentially inquires into the defendant's capacity to determine right from wrong.

A defense which is sometimes argued, but seldom successfully, is intoxication. If it was self-induced, the courts will usually say that a person is responsible for all acts committed while intoxicated. In recent years, however, probably because of strong arguments against the death penalty, courts are permitting a defense of diminished capacity (which may or may not result from intoxication) in murder cases.

An interesting defense is that of infancy: the person is too young to form a criminal intent. The common law conclusively presumed children under 7 years of age incapable of committing any crime, had a rebuttable presumption between 7 and 14, and treated them as adults if they were over 14. A rebuttable presumption is one that exists until facts are shown giving reason for its inapplicability.

The criminal procedure part of the crimes course is closely related to defendants' guaranteed constitutional protections. Criminal procedure is the process of trying and punishing the defendant for the crime. The Warren Court expanded criminal protection in a number of areas, some of which are now being retrenched by a Court composed of different justices. This is compatible with the history of the Supreme Court, where criminal defense protection has periodically expanded and contracted over the last two centuries.

Rigid Rule

One major contribution to legal analysis engendered by the Warren Court will, however, continue for many years. It had always been the rigid rule that, if something were declared unconstitutional, it was considered to be so from the beginning of the constitutional enactment on which it was based. Accordingly, when the Warren Court determined in Gideon v. Wainright, 372 U.S. 335 (1963), that it was a violation of due process and equal protection for a state to deny an indigent defendant the services of a lawyer at a felony trial, the Court concluded that it had to follow precedent in applying this new rule. The result was that, in every prior felony case in every state, every defendant who was convicted without the services of a lawyer because he could not afford to hire one to defend him at the trial was entitled to a retrial regardless of how long ago the trial had been held. Because of the staleness of the evidence, absence of witnesses, and inability of local district attorneys to handle the in-creased case loads, few of these retrials could take place. Thousands of hard-core criminals then in state prisons had to be released.

The public outcry was tremendous. And when the Court started defining other constitutional protections-such as prohibition of use of confessions made at time of arrest without warning against self-incrimination, right to a lawyer before having to answer any questions by the police, and the state duty to provide a lawyer for an indigent arrestee if one was requested-the clamor from the citizenry and law enforcement grew louder and louder. The Court stood fast, however, and retrials were ordered throughout the land. Evidence previously believed valid was found inadmissible, and again, numerous convicts who had confessed to their crimes were set free.

Gradually, without much public awareness even to this day, the Court started to erode the doctrine of retroactivity. By the time Chief Justice Warren retired, a new rule was established that a decision could be non-retroactive if the Court said so. It would not be applied to activities occurring before that time.

We now find some decisions even being made prospectively; the Court will sometimes give a new interpretation of the law which is not applied even to the case being decided but is set down to regulate future conduct. While this may make unnecessary the sudden release of large numbers of convicts, it has another effect which in the long run may be more dangerous. Prospective decision making is essentially judicial legislation. Five justices can now tell the entire country what the law will have to be in the future, thus clouding Congress's power to enact statutes which, under the former rule, would have been enacted before being passed upon by the Court. By proclaiming a rule to operate in the future, the Court is in effect telling Congress in advance not to enact a certain statute. Prospective decision making has also been picked up by several state supreme courts, and state legislatures are now coming under subtle restraint from judicial legislation.

Today, in every state, felony crimes are prosecuted either by indictment by a grand jury or an information filed by the prosecuting attorney. In the federal system, the Constitution requires an indictment.

Under the indictment system, outside the presence of the prospective defendant, the prosecutor presents only the government side of the case to the grand jury. (Some jurisdictions allow a prospective defendant to testify, too.) If they believe a crime has been committed, they issue an indictment accusing someone. This becomes the complaint in the criminal trial.

In the information method, some person files a complaint accusing an individual of committing a crime; a preliminary hearing is set before a magistrate; the prosecution has to put on enough evidence to show reasonable cause to believe that the defendant has committed the crime; the defendant can cross-examine witnesses and put on evidence if desired; the magistrate determines whether the defendant should be held to answer to the county court. If so, the prosecutor issues information accusing the defendant of the crime. This then becomes the complaint in the criminal trial. Several years ago, the United States Supreme Court decided that a preliminary hearing was also required in indictment cases, before the defendant could be brought to trial.

Plea to the Charge

Before trial, the defendant is given an opportunity to enter a plea to the charge. The customary pleas are Not Guilty, Not Guilty by Reason of Insanity, Guilty, or Nolo Contendere (no contest). For all practical purposes, the Nolo plea is similar to a Guilty plea. The difference is that the former may not be used to find liability in a civil case. A plea of Guilt or a finding of guilty on trial, may be used in a civil case in some states.

A is convicted of manslaughter in the drunk driving death of B. B's widow brings a civil wrongful death action for damages against A. The judgment of conviction in the criminal trial can be admitted in evidence in the civil case as proof that A was drunk when he was driving the car that hit B, and that the impact was the proximate cause of B's death. This use of the criminal conviction considerably cuts down on the time necessary to try the civil case and allows the parties to get down to deciding how much the damages should be.

All criminal defendants in felony cases are entitled to a jury trial. They are entitled to a lawyer at all stages of the proceedings; if they cannot afford one, the state must provide one at no cost. After arrest, and during trial, the defendant is entitled to be released on bail. The purpose of bail is to insure the defendant's presence during subsequent proceedings.

If the verdict is Not Guilty, the defendant is free. If it is Guilty, a probation and sentence report is ordered. Based upon this report and sometimes on other information, the defendant is put on probation or incarcerated for the term prescribed by law. A defendant may be paroled prior to expiration of sentence. Violation of parole may result in re-incarceration. When the sentence time ends, the individual is freed.

A defendant who is found guilty is entitled to appeal. Again, in felony cases, a lawyer is provided free if the defendant cannot afford to pay for the services. Normally, the prosecution may not appeal after a Not Guilty verdict.

Experience has shown that most career, paid, public defenders do an excellent job at both trial and appellate levels. Many people have the idea that these individuals are hack lawyers. That is not the case. Public defenders are specialists. All they do is try criminal cases. They have access to investigative sources a private paying client might not be able to afford. They have a daily working relationship with the judges. They go up against the same group of lawyers from the D.A.'s office all the time, are aware of the trial tactics these prosecutors personally use to sway juries, and know how to combat them. They know the ins and outs of plea bargaining. They know all the details of alternative sentencing. They know how to get the best possible deal for their clients. Most important, they are dedicated.

As you study crimes, you will get the deep feeling that our Constitution is a truly wonderful document and that the rights it provides all persons are simply spectacular. In your career as a law student and a lawyer you will get a new concept of the right of an individual not to be required to testify against himself or herself; the right to equal protection of the law; the right to be free from unreasonable or warrantless searches and seizures; the right to due process; the right to trial by jury, and all the other rights set forth.

You will gradually come to understand that, while it may sometimes seem bad for society to give criminals so many rights, it would be worse if those rights did not exist for anyone. Consider that every right which may be enforced to benefit some terrible criminal is also enforced to protect some innocent citizen when he or she gets into trouble for perhaps the first time. The existence of these constitutional rights is the protection we all have against the excessive use of power by agents of any governing body in the country.