Criminal Law and Criminal Procedure

The glamorous side of the law! Homicides; Miranda rights; Law & Order, O.J., Kato, and Lance. In fact, Criminal Law is so glamorous that it's actually two classes: Substantive Criminal Law and Criminal Procedure. In some schools, the two are taught as separate courses, but in others, they are combined (too bad, you still only get credit for one class). Think of the separation this way: Substantive Criminal Law, which is generally referred to simply as Criminal Law, is whether what you did was a crime (and if so, what crime); Criminal Procedure is, generally, what the government can do to prove it. Or think of it this way while you watch NYPD Blue: Substantive Criminal Law dictates what evidence the police need to find, while Criminal Procedure lets you tick off which constitutional rights Detective Andy Sipowicz has violated on the way there.

Substantive Criminal Law, in turn, has two aspects of its own. The first is more theoretical in nature and asks about the various doctrines that run throughout Substantive Criminal Law. For instance, one important theme is that of intent and its various forms. In one formulation concerning the killing of another person, the four forms of intent are purpose (that you meant to kill somebody), knowledge (that even if you did not intend to kill someone, you knew it would be a necessary consequence of your actions), recklessness (that you knew your actions would have a high risk of causing somebody's death), and negligence (that you did not know of such a risk, but should have). The crime for which you can be convicted may depend on which level of intent you possessed. Other issues in Substantive Criminal Law include causation (when the law blames someone for something that was not a direct result of that person's actions) and defenses (things that will excuse you or mitigate a crime-for instance, the famed insanity defense).

The other main portion of Substantive Criminal Law is more catalogue-like in nature: the list of crimes-murder, manslaughter, rape, robbery, burglary, arson, and many others. Under the common law, each of these crimes has certain elements that the prosecution must prove in order to convict someone. For instance, battery is the unauthorized, intentional, harmful physical contact or offensive touching of another person. Each of these terms has some ambiguity at the edges. In Substantive Criminal Law, you learn about the basic elements and about the fuzzy areas. For instance, under the common law definition of battery, a punch certainly fits, but how about an unauthorized kiss? (Technically yes, although try convincing the district attorney to bring a prosecution.)

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Criminal Procedure, by contrast, does not deal with what crime has been committed, but instead with what the government can do to prove it. Unlike Substantive Criminal Law, which is mainly driven by the common law, Criminal Procedure derives from cases by the Supreme Court interpreting the Constitution (and, in particular, the Fourth, Fifth, and Sixth Amendments). In Criminal Procedure, you learn about what types of searches and seizures the police can do; when and for what purposes criminal suspects are entitled to consult with counsel; and how a criminal investigation must proceed in order to be constitutional. (By the way, a good way to "study" Criminal Procedure is to watch cop shows and call out the constitutional violations as they go, but don't try to cite Hill Street Blues as a legal authority on your final.)

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Ah, Torts! Finally, Torts! All this time, you've been waiting for... what in God's name is a TORT? The other class names were at least words, you're thinking; "tort" sounds like a rude word (or a chocolate cake). Here's the first important rule, which you probably just learned: Jokes about the word "tort" are not funny. You should not hope to impress classmates with any material riffing on the word-that's buying yourself a one-way ticket to Camp Pariah.

A tort, loosely defined, is a common law wrong you can sue for that's not based directly on a contract or property rights. Thus, when you get punched in the nose, that's a tort. If you were paying attention before, you know that it's also the crime of battery; the distinction is that you, the one with the sore nose, sue the puncher for the tort in civil litigation (again, hope you were paying attention before), while the government (if it chooses) could prosecute the puncher for the crime of battery separately.

But torts encompass a much broader range of legal wrongs than punches in the nose. Fender bender? That's a tort. Suing someone maliciously and without legal basis? Also a tort. Deliberately printing falsehoods about someone in your local newspaper? Yep, tort. Spilling billions of gallons of oil on a precious nature reserve? Tort. Reneging on your contract to sing at the Metropolitan Opera House? Not a tort, but a claim in contract. (Paying attention?)

Much as in Substantive Criminal Law, Torts has an abstract theoretical side and a more pedantic listy side. There are a number of themes that run through Torts: intent, causation, standards of care, duty, and damages. There are also a number of specific torts whose definitions have already been established by the common law: libel and defamation, wrongful death, false imprisonment, and negligence. Of course, some wise guys might argue that subjecting students to law school is in itself tortious, but that's neither here nor there.