PART 1 - CHAPTER 2 Basic Principles of Criminal Law

• Jurisdiction: United States

Chapter 2 Basic Principles of Criminal Law

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ Explain what the "rule of law" is and why it is such an important part of our legal system.
■ List the primary sources of federal and state laws and explain how they differ.
■ Describe the major classifications used for identifying different types of criminal law.
■ Distinguish between actus reus and mens rea.
■ Explain the differences between a principal, an accomplice, and an accessory, and why it matters.

INTRODUCTION

Before jumping into the details of criminal law and criminal procedure, we need to examine some of the basic concepts upon which our criminal law is based. One of the most important principles is adherence to the rule of law.

A. RULE OF LAW

The rule of law is a collection of legal principles that all relate to the placement of limitations on the exercise of political power and the operation of government. These principles include: (1) government must follow its own rules; (2) government must apply the law impartially; and (3) government must provide due process for those accused of breaking the rules.

To achieve the rule of law, the laws must:

■ Be enacted in accordance with preexisting legal rules (e.g., be constitutionally authorized)
■ Be made public
■ Be reasonably clear in meaning
■ Be capable of being followed
■ Be applied prospectively, not retroactively
■ Be applied in an impartial manner consistent with their meaning
■ Remain in force for a reasonable period of time

B. SOURCES OF LAW

You probably remember something from a high school civics class about the legislature making the law, the executive branch enforcing the law, and the courts applying it. The truth, however, is that the legislative, executive, and judicial branches are all involved in creating the law. Their specific roles depend in part upon the type of law that is being promulgated.

When people think about a law, they usually envision what is formally classified as statutory law. Statutes appear as you would expect a law should appear. They spell out rules that apply to general categories of people, businesses, etc. Statutes are enacted by a majority of an official legislative body, such as the U.S. Congress or a state legislature. These laws are given specific names and citations and are usually incorporated into an official code. (A code is a compilation of statutes, ordinances, or regulations that is organized by subject matter rather than by the date of its enactment.) When local governmental units such as county boards, city councils, and sanitary districts pass laws, they are usually called ordinances rather than statutes but are still categorized as a type of statutory law.

If all of these statutes were written in such a way that their meaning was clear to everyone, we could apply the conventional wisdom that the legislative branch makes the law, the executive branch enforces it, and the judicial branch applies it. However, statutes and ordinances frequently contain ambiguous language and therefore are not clear to all who read them. In these situations, the executive branch has some degree of discretion over how it chooses to interpret statutes. Similarly, a judge cannot reach a decision as to whether someone is guilty of breaking the law without clarifying what behavior the law actually requires or prohibits. In these situations, the executive branch and the judicial branch are clearly involved in "making" the law.

Administrative law is similar to statutory law in that it usually consists of fairly specific regulations that are written in a form similar to statutes. In effect, the legislative branch intentionally leaves it to the executive branch and to independent regulatory agencies to "fill in the details" of the law within a general structure set down by the legislature. Through the process of filling in these details, the executive branch, rather than the legislature, is crafting the exact wording of the law. And to the extent that there is some degree of ambiguity in these administrative regulations, the courts are drawn into the lawmaking process when they are called upon to resolve that ambiguity.

A third major category of law is constitutional law. This type of law is based on the texts of the constitutions of the United States and of the 50 states. Because constitutions include provisions that speak in general and broad language, the judicial branch has to interpret the meaning of these terms in the context of the facts of the case. Therefore, one cannot understand what a constitution requires without reviewing how it has been applied in the written opinions of the U.S. Supreme Court and of those of the highest courts of the states. These decisions are published in court reporters.

Constitutions define how the government is organized and the powers given to the various governmental institutions. Most also contain a "Bill of Rights" section that enumerates specific rights of the government's citizens. Constitutional law is therefore frequently used to challenge a statute or administrative regulation on the basis that it is prohibited by one or more provisions in the constitution.

While the U.S. Constitution is pretty clear about things like the age requirements for representatives, senators, and the president, it contains many broad, sweeping phrases, such as "interstate commerce," "establishment of religion," "freedom of speech and press," and "unreasonable searches and seizures." These somewhat ambiguous phrases open the door for the judicial branch to play a key role in the development of constitutional law. Based on the principle of judicial review as it was enunciated by Chief Justice John Marshall in Marbury v. Madison,² the judicial branch has the power to strike down statutes and void other government actions that are not consistent with the Court's interpretation of the Constitution. State courts also employ judicial review to invalidate statutory and administrative laws that conflict with state constitutions.

A fourth source of law is what is referred to as the common law. Common law is the body of law derived from judges' decisions rather than from the other three sources of law. The common law, which originated in England and continues to evolve in the United States, applies to legal disputes involving subjects that are not addressed by the other three types of law. In other words, in the absence of pronouncements from the constitution or a legislative or administrative body, the judge looks to the earlier decisions of other judges in similar circumstances. An earlier judicial decision relied upon in deciding a case is called judicial precedent.

Over time, statutory law has superseded much of the common law. This is especially true in the area of criminal law, which is now almost entirely statutory. However, while Section 1.05(1) of the Model Penal Code of the American Law Institute (ALI) states: "No conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State,"³ there are still a few states that recognize some common law crimes. For instance, as recently as 1999, the Rhode Island Supreme Court upheld convictions on the basis of common law crimes.⁴ The common law continues to play its most prominent role in the area of tort law.

In addition to classifying law based on its being found in constitutions, statutes, administrative regulations, or past court decisions, it can also be classified as to whether it is federal, state, or local law. Federal laws consist of laws made by Congress, federal executive agencies, and the rulings of federal courts. State laws are created by state legislatures, state executive agencies, and state court rulings. Local laws are made by local legislative bodies such as city councils and county boards, by local administrative agencies, and by courts interpreting those laws. Whereas federal laws apply nationwide, state laws pertain only to the state in which they were made, and local laws apply only to selected local areas. It is left to the state courts to settle any conflicts between state and local laws and to the federal courts to resolve conflicts between federal and state laws. In some cases, the federal law preempts the state law; in others, both federal and state laws may be enforced simultaneously.

The executive order is not technically considered a law but has the same effect as law. At the federal level, this is a directive from the president that is enforceable by members of the executive branch of government. Although there is no specific provision in the U.S. Constitution authorizing the issuance of executive orders, the president has general authority to issue these directives as the commander- in-chief and as the official charged with taking care that the laws be faithfully executed. Governors may also issue executive orders at the state level. Executive orders do not criminalize conduct but rather may give direction on enforcement of statutory laws.

While most criminal law comes from state statutes, certain types of crimes are found only in federal statutes. State and federal regulations can also play a role in criminal prosecutions. Federal and state statutes, regulations, court rules, and constitutional law are also involved in questions of criminal procedure. Constitutional guarantees such as protection against double jeopardy, the right to counsel, the privilege against self-incrimination, the right to confront witnesses, and the right to a jury trial also play a key role in the criminal law.

Although the common law does not play much of a role in criminal law, one frequently needs to refer to case law interpreting constitutional rights and the statutes being applied.

Figure 2.1 summarizes the sources of criminal law; Figure 2.2 lists rights guaranteed to criminal defendants by the U.S. Constitution.

C. CLASSIFICATIONS OF CRIMES

Crimes are generally classified as either...