It's a living legal community making laws accessible and interactive. Click Here to get Started »
A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punishments. In contrast, Criminal Procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which government enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter.
Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infractions, are often called violations and are considered a part of criminal law.
The power to make certain conduct illegal is granted to Congress by virtue of the necessary and proper clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.
State legislatures have the exclusive and inherent power to pass a law prohibiting and punishing any act, provided that the law does not contravene the provisions of the U.S. or state constitution. When classifying conduct as criminal, state legislatures must ensure that the classification bears some reasonable relation to the welfare and safety of society. Municipalities may make designated behavior illegal insofar as the power to do so has been delegated to them by the state legislature.
Laws passed by Congress or a state must define crimes with certainty. A citizen and the courts must have a clear understanding of a criminal law's requirements and prohibitions. The elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness.
In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms. A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void. Courts will not hold a person criminally responsible for conduct that could not reasonably be understood to be illegal. However, mere difficulty in understanding the meaning of the words used, or the ambiguity of certain language, will not nullify a statute for vagueness.
A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute is expressly repealed by the legislature, but some of its provisions are at the same time re-enacted, the re-enacted provisions continue in force without interruption. If a penal statute is repealed without a saving clause, which would provide that the statute continues in effect for crimes that were committed prior to its repeal, violations committed prior to its repeal cannot be prosecuted or punished after its repeal.
The same principles govern pending criminal proceedings. The punishment that is provided under a repealed statute without a saving clause cannot be enforced, nor can the proceeding be prosecuted further, even if the accused pleads guilty. A court cannot inflict punishment under a statute that no longer exists. If a relevant statute is repealed while an appeal of a conviction is pending, the conviction must be set aside if there is no saving clause. However, once a final judgment of conviction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is based does not require reversal of the judgment.
Generally, two elements are required in order to find a person guilty of a crime: an overt criminal act and criminal intent. The requirement of an overt act is fulfilled when the defendant purposely, knowingly, or recklessly does something prohibited by law. An act is purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result. To act knowingly means to do so voluntarily and deliberately, and not owing to mistake or some other innocent reason. An act is reckless when a person knows of an unjustifiable risk and consciously disregards it.
An omission, or failure to act, may constitute a criminal act if there is a duty to act. For example, a parent has a duty to protect his or her child from harm. A parent's failure to take reasonable steps to protect a child could result in criminal charges if the omission were considered to be at least reckless.
Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal. However, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges. Negligence gives rise to criminal charges only if the defendant took a very unreasonable risk by acting or failing to act.
Criminal intent must be formed before the act, and it must unite with the act. It need not exist for any given length of time before the act; the intent and the act can be as instantaneous as simultaneous or successive thoughts.
A jury may be permitted to infer criminal intent from facts that would lead a reasonable person to believe that it existed. For example, the intent to commit burglary may be inferred from the accused's possession of tools for picking locks.
Criminal intent may also be presumed from the commission of the act. That is, the prosecution may rely on the presumption that a person intends the natural and probable consequences of his or her voluntary acts. For example, the intent to commit murder may be demonstrated by the particular voluntary movement that caused the death, such as the pointing and shooting of a firearm. A defendant may rebut this presumption by introducing evidence showing a lack of criminal intent. In the preceding example, if the murder defendant reasonably believed that the firearm was actually a toy, evidence showing that belief might rebut the presumption that death was intended.
Proof of general criminal intent is required for the conviction of most crimes. The intent element is usually fulfilled if the defendant was generally aware that he or she was very likely committing a crime. This means that the prosecution need not prove that the defendant was aware of all of the elements constituting the crime. For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that the defendant knew the precise quantity. Other examples of general-intent crimes are battery, rape, kidnapping, and false imprisonment.
Some crimes require a specific intent. Where specific intent is an element of a crime, it must be proved by the prosecution as an independent fact. For example, robbery is the taking of property from another's presence by force or threat of force. The intent element is fulfilled only by evidence showing that the defendant specifically intended to steal the property. Unlike general intent, specific intent may not be inferred from the commission of the unlawful act. Examples of specific-intent crimes are solicitation, attempt, conspiracy, first-degree premeditated murder, assault, larceny, robbery, burglary, forgery, false pretense, and embezzlement.
Most criminal laws require that the specified crime be committed with knowledge of the act's criminality and with criminal intent. However, some statutes make an act criminal regardless of intent. When a statute is silent as to intent, knowledge of criminality and criminal intent need not be proved. Such statutes are called strict liability laws. Examples are laws forbidding the sale of alcohol to minors, and statutory rape laws.
The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and arson.
Felony-murder statutes evince a special brand of transferred intent. Under a felony-murder statute, any death caused in the commission of, or in an attempt to commit, a predicate felony is murder. It is not necessary to prove that the defendant intended to kill the victim. For example, a death resulting from arson will give rise to a murder charge even though the defendant intentionally set the structure on fire without intending to kill a human being. Furthermore, the underlying crime need not have been the direct cause of the death. In the arson example, the victim need not die of burns; a fatal heart attack will trigger a charge of felony murder. In most jurisdictions, a death resulting from the perpetration of certain felonies will constitute first-degree murder. Such felonies usually include arson, robbery, burglary, rape, and kidnapping.
Malice is a state of mind that compels a person to deliberately cause unjustifiable injury to another person. At common law, murder was the unlawful killing of one human being by another with malice aforethought, or a predetermination to kill without legal justification or excuse. Most jurisdictions have omitted malice from statutes, in favor of less-nebulous terms to describe intent, such as purpose and knowing.
Massachusetts, for example, has retained malice as an element in criminal prosecutions. Under the General Laws of the Commonwealth of Massachusetts, Chapter 265, Section 1, malice is an essential element of first- and second-degree murder. According to the Supreme Judicial Court of Massachusetts malice is a mental state that "includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow" (Commonwealth v. Huot, 403 N.E.2d 411 ).
Motives are the causes or reasons that induce a person to form the intent to commit a crime. They are not the same as intent. Rather, they explains why the person acted to violate the law. For example, knowledge that one will receive insurance funds upon the death of another may be a motive for murder, and sudden financial difficulty may be motive for embezzlement or burglary.
Proof of a motive is not required for the conviction of a crime. The existence of a motive is immaterial to the matter of guilt when that guilt is clearly established. However, when guilt is not clearly established, the presence of a motive might help to establish it. If a prosecution is based entirely on circumstantial evidence, the presence of a motive might be persuasive in establishing guilt; likewise, the absence of a motive might support a finding of innocence.
Defenses Negating Criminal Capacity To be held responsible for a crime, a person must understand the nature and consequences of his or her unlawful conduct. Under certain circumstances, a person who commits a crime lacks the legal capacity to be held responsible for the act.
Examples of legal incapacity are infancy, incompetence, and intoxication.
Children are not criminally responsible for their actions until they are old enough to understand the difference between right and wrong and the nature of their actions. Children under the age of seven are conclusively presumed to lack the capacity to commit a crime. Between the ages of seven and 14, children are presumed to be incapable of committing a crime. However, this presumption is not conclusive; it can be rebutted by the prosecution through the admission of evidence that the child knew that what he or she was doing was wrong. Anyone over the age of 14 is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity.
All states have juvenile courts, which are separate from criminal courts. Juveniles who are accused of a crime are tried in these courts as delinquent children, rather than as criminal defendants. This alternative prevents children from invoking the defense of infancy. In juvenile courts, criminal charges lead to an adjudication rather than prosecution, because the aim of juvenile courts is to rehabilitate, rather than to punish. In the 1990s, some state legislatures passed laws to make it easier to prosecute juveniles in adult courts, especially in cases involving violent crimes.
Insane persons cannot, in a legal sense, form the intent necessary to commit a crime. They are not, therefore, criminally responsible for their actions. Courts have applied a variety of legal tests to determine the mental state of a criminal defendant who claims that he or she was insane at the time of the alleged crime. One test is the m'naghten rule, which was originally used by an English court in the criminal prosecution of Daniel M'Naghten.
M'Naghten had an insane delusion that the prime minister of England, Sir Robert Peel, was trying to kill him. Mistaking the prime minister's secretary, Edward Drummond, for the prime minister, M'Naghten killed the secretary. At his trial, M'Naghten asserted that he had been insane when he committed the crime. The jury accepted his argument and acquitted him. From that decision evolved the M'Naghten test, under which, in order to disclaim criminal responsibility, a defendant must be affected by a disease of the mind at the time he or she commits the act. The disease must cause the ability to reason to become so defective that the person does not know the nature and quality of the act or else does not know that the act is wrong. A successful invocation of the M'Naghten defense results in commitment to a mental institution for treatment, rather than imprisonment.
A number of states prefer the "irresistible impulse" test as the standard for determining the sanity of a criminal defendant. If the defendant is suffering from a mental disease that prevents control of personal conduct, he or she may be adjudged not guilty by reason of insanity, even if he or she knows the difference between right and wrong.
The Model Penal Code of the American Law Institute established another test of insanity that has been adopted by almost all of the federal courts and by numerous state legislatures. Under the Model Penal Code test, a person is not responsible for criminal conduct if, at the time of such conduct, he or she lacks the capacity either to appreciate the criminality or the wrongfulness of the conduct, or to conform his or her conduct to the requirement of law. This lack-of-capacity excuse does not apply to abnormalities demonstrated by a repetitive pattern of illegal or violent acts.
Some states employ the "lack-of-substantial-capacity" test. The phrase "lacks substantial capacity" is a qualification of the M'Naghten rule and the irresistible-impulse test, both of which require the total absence of capacity. This test also requires a showing of causality. The defense is not established merely by a showing of a mental disease; rather, it is established only if, as a result of the disease, the defendant lacks the substantial capacity that is required in order to hold him or her criminally responsible. For example, pyromania may be a defense to a charge of arson, but it is no defense to a charge of larceny. An irresistible impulse arising from anger, jealousy, or a desire for revenge does not excuse a defendant from criminal responsibility unless such emotions are part of the mental disease that caused the crime.
Generally, voluntary intoxication from drugs or alcohol does not excuse a criminal act. Involuntary intoxication is, however, a valid defense. It occurs when a person is forced to take an intoxicating substance against his or her will, or does so by mistake. If a defendant's involuntary intoxicated condition causes a criminal act, the defendant will not be convicted if, because of the intoxication, he or she is unable to appreciate the criminality of the conduct.
Fair Warning Defense The due process Clauses contained in the Fifth and Fourteenth Amendments to the U.S. Constitution require that before a defendant may be prosecuted for criminal conduct, the law must make clear which conduct is criminal. Justice Oliver Wendell Holmes articulated the standard when he wrote that a criminal statute must give "fair warning … in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L. Ed. 816 (1931)."
The U.S. Supreme Court had the opportunity to revisit the fair-warning requirement in United States. v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). Lanier was a case involving a prosecution under 18 U.S.C.A. § 242, a Reconstruction-era civil rights law that makes it a federal crime to deprive another of "any rights, privileges, or immunities secured or protected by the constitution or laws of the United States" while acting "under color of any law."
Congress originally passed the law to afford a federal right in federal courts for situations when, by reason of prejudice, passion, neglect, intolerance, or otherwise, state courts might not be as vigilant as federal courts in protecting the rights that are guaranteed by the Fourteenth Amendment to the U.S. Constitution.
Traditionally, Section 242 had been primarily invoked against police officers and prison guards. The Lanier case arose from allegations of sexual misconduct against the sole state Chancery Court judge for two rural counties in western Tennessee, David Lanier. The trial record shows that from 1989 to 1991, while Lanier was in office, he sexually assaulted several women in his judicial chambers.
Lanier's most serious assault involved a woman whose divorce proceedings had come before his chancery court and whose daughter's custody remained subject to his jurisdiction. When the woman applied for a secretarial job at Lanier's courthouse, Lanier interviewed her. As the woman got up to leave, Lanier grabbed her, sexually assaulted her, and finally committed oral rape.
On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Youth Services officer, and a local coordinator for a federal program who had been in Lanier's chambers to discuss a matter affecting the same court.
Lanier was later charged with 11 violations of Section 242. Each count of the indictment alleged that Lanier, acting willfully and under color of Tennessee law, had deprived the victims of the right to be free from willful sexual assault. Before trial, Lanier moved to dismiss the indictment on the ground that Section 242 is void for vagueness. The district court denied the motion.
The jury returned verdicts of guilty on seven counts, and not guilty on three (one count having been dismissed at the close of the prosecution's case). Lanier was then sentenced to consecutive maximum terms totaling 25 years.
A panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the convictions and sentence, United States v. Lanier, 33 F.3d 639 (6th Cir. 1994), but the full court vacated that decision and granted a rehearing en banc. United States. v. Lanier, 43 F.3d 1033 (1995). On rehearing, the full court set aside Lanier's convictions for "lack of any notice … that this ambiguous criminal statute [i.e., Section 242] includes simple or sexual assault crimes within its coverage." United States v. Lanier, 73 F.3d 1380 (6th Cir. 1996).
Specifically, the Sixth Circuit held that criminal liability may be imposed under Section 242 only if the constitutional right said to have been violated is first identified in a decision of the U.S. Supreme Court (not any other federal or state court), and only when that right has been held to apply in "a factual situation fundamentally similar to the one at bar."
The Sixth Circuit then said it could not find any decision of the U.S. Supreme Court that recognized, under Section 242, a right to be free from unjustified assault or invasions of bodily integrity in a situation "fundamentally similar" to those circumstances under which Lanier was charged.
In the absence of such a decision, the Sixth Circuit said that Tennessee had violated Lanier's due process right to be fairly warned that particular conduct is prohibited and carries with it the possibility for criminal punishment. Accordingly, the Sixth Circuit reversed the judgment of conviction and instructed the trial court to dismiss the indictment.
The state of Tennessee appealed, and the U.S. Supreme Court reversed the Sixth Circuit, observing that there are three manifestations of the "fair warning requirement." First, the "vagueness doctrine" bars enforcement of statutes that either forbid or require an act in terms that are so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. Second, the Court wrote that the "canon of strict construction of criminal statutes" ensures fair warning by limiting application of ambiguous criminal statutes to conduct that is clearly covered. Third, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. In other words, a trial court cannot "clarify" a statute by supplying terms through its own interpretation of the law, when those terms were not clearly contemplated by the statutory language chosen by the legislature.
However, the Court emphasized that the due process fair-warning requirement does not require that prohibited criminal conduct be previously identified by one of its own decisions and held to apply in a factual situation "fundamentally similar" to the defendant's case at bar. Instead, the Court wrote, "all that can usefully be said about criminal liability under [Section 242] is that [liability] may be imposed for deprivation of constitutional right if, but only if, in light of preexisting law, unlawfulness under the constitution is apparent."
The Court then remanded the case to the Sixth Circuit for further proceedings in light of its opinion. After reading the high court's opinion, the Sixth Circuit vacated its earlier decision and ordered Lanier to begin serving his sentence. One Sixth Circuit judge dissented, criticizing the U.S. Supreme Court for not writing a clearer opinion that articulated what constituted "apparent" unlawful conduct.
Exculpatory Defenses Exculpatory defenses are factors that excuse a competent person from liability for a criminal act. Duress is an exculpatory defense. One who commits a crime as a result of the pressure of an unlawful threat of harm from another person is under duress and may be excused from criminal liability. At trial, whether the defendant was under duress is a question of fact for the judge or jury. The defense of duress was invoked in the 1976 trial of Patricia Campbell Hearst, the young daughter of wealthy newspaper owners Randolph A. Hearst and Catherine C. Hearst. On February 4, 1974, Patricia Hearst was kidnapped by the Symbionese Liberation Army (SLA) and held for the unusual ransom of food distribution to the poor. Shortly after the abduction, Hearst sent a recorded message to her parents, in which she announced that she had become a social revolutionary.
On April 15, Hearst participated in a bank robbery with members of the SLA. She was arrested in September 1975 and tried for armed bank robbery. At trial, Hearst's lawyers argued, in part, that Hearst's participation in the robbery had been caused by duress. Hearst testified that she had feared for her life as she had stood inside the Hibernia Bank. On cross-examination, Hearst invoked her Fifth Amendment privilege against self-incrimination 42 times. The refusal to answer so many prosecution questions might have damaged Hearst's credibility, and the jury did not accept her argument of duress. Hearst was convicted and sentenced to seven years in prison. (President Jimmy Carter commuted her sentence on February 1, 1979, and ordered her release from prison.)
Entrapment is another exculpatory defense to criminal charges. Entrapment exists if a law enforcement officer induces a person to commit a crime, for the purpose of instituting a criminal prosecution against that person. It is not available if law enforcement merely provides material for the crime.
Mistakes of law or fact are seldom successful defenses. Generally, a mistake of law is applicable only if the criminal statute was not published or made reasonably available prior to the act; the accused reasonably relied on the contrary teaching of another statute or judicial decision; or, in some jurisdictions, the accused reasonably relied on contrary official advice or a contrary official interpretation. A mistake of fact may excuse a defendant if the mistake shows that the defendant lacked the state of mind required for the crime. For example, in a specific-intent crime such as embezzlement, evidence that the accused was unaware of transfers into his or her own bank account would negate the specific criminal intent required for conviction.
Justification defenses include necessity, self-defense, defense of others, and defense of property. If a person acts to protect the life or health of another in a reasonable manner and with no other reasonable choice, that person may invoke the defense of necessity. According to the Model Penal Code, self-defense and defense of others are permissible when it reasonably appears necessary that force is required to defend against an aggressor's imminent use of unlawful force. Nondeadly force may be used in order to retain property, and deadly force may be used only to prevent serious bodily harm.
Under common law, when a person committed a major crime that included a lesser offense, the latter merged with the former. This meant that the accused could not be charged with both crimes. The modern law of merger applies only to solicitation and attempt. One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Likewise, a person who attempts and completes a crime may not be convicted of both the attempt and the completed crime.
An attempt to commit a crime is conduct intended to lead to the commission of the crime. It is more than mere preparation, but it falls short of actual commission of the intended offense. An intent to commit a crime is not the same as an attempt to commit a crime. Intent is a mental quality that implies a purpose, whereas attempt implies an effort to carry that purpose or intent into execution. An attempt goes beyond preliminary planning and involves a move toward commission of the crime.
As a general rule, an attempt to commit a crime is a misdemeanor, whether the crime itself is a felony or a misdemeanor. However, in a case of violent crime, an attempt may be classified as a felony. Attempted murder and attempted rape are examples of felonious attempts. In an attempt case, the prosecution must prove that the defendant specifically intended to commit the attempted crime that has been charged. General intent will not suffice. For example, in an attempted-murder case, evidence must show a specific intent to kill, independent from the actual act, such as a note or words conveying the intent. In a murder case, intent may be inferred from the killing itself.
When two or more persons act together to break the law, conspiracy is an additional charge to the intended crime. For example, if two persons conspire to commit robbery, and they commit the robbery, both face two charges: conspiracy to commit robbery and robbery.
Jonathan Clough, and Carmel Mulhern. 1999. Criminal Law. Sydney: Butterworths.
Kaplan, John, and Robert Weisberg. 1991. Criminal Law: Cases and Materials. 2d ed. Boston: Little, Brown.
McMahon, Katherine E. 1993. "Murder, Malice, and Mental State: A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama." Massachusetts Law Review (June).