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CHAPTER TWO
FOUNDATIONS AND FUNCTIONS OF LAW
Provides funding for criminal justice agenciesCreates criminal lawsDetermines sentencing guidelines
Legislative Role
Pre-Historical Era (Earliest History-2000 B.C.)Societies based upon clans, tribes, or kinshipCustomary Laws based upon social normsInformal but effective law enforcementChiefs or elders served as judgesUse of Irrational justiceReliance on religious, ethical, and mystical considerations
The Development of Law
Early Historical Era (2000 B.C.-1000 A.D.)Development of Written CodesEgyptians, Babylonians, HebrewsGreeks and RomansSignificance of Early Historical Legal SystemsEstablishment of written codesEmergence of different roles in the legal systemGreat Influence on the legal systems of Europe and the U.S.Influence of Canon Law (church law) on legal systems
The Development of Law
Modern Era (1000 A.D.-Present)Renaissance (1300s to 1600s)Age of Enlightenment (1700s)Reemergence of natural lawBelief that there is a divine source of law higher than any otherAbsolute and unchangeable law that is applicable to all people
The Development of Law
Penal LawCriminal actions that a society prohibitsCompensatory LawCivil law dispute among private individualsTherapeutic LawFocus on helping and treating an offender’s criminal behaviorConciliatory LawFocus on resolving conflict and providing a winning outcome for both parties
Typologies of Law
Code law systemsDeveloped from Roman and Napoleonic CodesFeaturesNo judge-made lawEmphasis on the rights of the victimized communityAll laws are written in a complete codeInquisitorial legal systemDecisions by judicial panels
Civil Law Legal Systems
Broad ruling documents are interpreted by judicial reviewJudicial rulings are considered a source of lawEmphasis on the rights of the accusedAdversarial legal systemDecisions by juries
Common Law Legal Systems
Civil LawDisputes between private parties (plaintiff and defendant)Standard of persuasion is Preponderance of the EvidenceBoth parties may be at fault (contributory negligence)Attorneys may represent a client on a contingency feeSanctions include monetary damages and injunctionsCriminal LawOffenses against society (prosecutor brings the case on behalf of the governmentStandard of persuasion is Beyond a Reasonable DoubtDefendant has the right to counselSanctions include fines, probation, or jail/prison time
Civil and Criminal Law
Substantive LawDefines the acts that are crimesDefines the penalties for criminal actsProcedural LawDefines how a case must be processedAttorney appointmentJury selectionEvidence admissibilityCriminal investigationSentencing
Substantive and Procedural Law
Common LawBased upon a community’s norms and valuesApplied throughstaredecisis, or application of prior judicial rulings to similar casesConstitutional LawAll other laws must comport with the U.S. ConstitutionState laws must also comport with that state’s ConstitutionConstitutionality determined by appellate judges
Sources of Law
Statutory LawWritten laws enacted by legislative bodiesEncompasses almost all U.S. criminal lawsCase LawJudges create law by deciding constitutional law issuesJudicial policymakingAdministrative LawFederal and state agency regulations have the force of lawPublished in theFederal Register
Sources of Law
Degree of EvilnessMala in se: action that is evil in and of itselfMalaprohibita: action that is wrong because of a law prohibiting itOffense SeriousnessFeloniesmost serious offensesinclude possibility of imprisonment for over one yearMisdemeanorslesser offensesinclude possibility of imprisonment for less that one yearPetty Misdemeanorspotential sentence of fines only
Crime Classifications
MensreaCriminal intent or motivationActusreusCriminal actDoes not always have to be completedConcurrenceMensreaandactusreusmust be present at the same timeDefendant must have criminal intent and must act upon that intent
Elements of a CrimeCorpusdelicti: “body of a crime”
ConspiracyTwo or more people form an agreement to commit a crime,andcommit an overt act toward the completion of the crimeSolicitationOne person tries to persuade another to commit a crime on their behalfAttemptA crime is started, but is not completed
Inchoate Offenses
Justification DefensesThe defendant’s actions were not legally wrongExcuse DefensesThe defendant’s actions were legally wrong, but an extenuating circumstance excuses the action
Defenses to Crime
Self-defenseA person may use necessary force in an attackThe person cannot be the initial aggressorNecessityA person may commit a criminal act to save himself from forces of natureExample: hikers break into a cabin to save themselves from death inasnowstorm
Justification Defenses
DuressA person commits a crime due to threat of bodily harmEntrapmentA person commits a crime that was initiated by another personThe person who committed the crime would not have done so otherwiseInfancyA person who committed a crime was too young to form criminal intentMinimum age is set by statuteInsanityA person was unable to form criminal intent due to mental illnessIntoxicationA person was unable to form criminal intent due to involuntary intoxicationAlibiA person could not have committed a crime because they were somewhere else
Excuse Defenses
Classified by the FBI’s Uniform Crime ReportsCrimes against PersonsCrimes against PropertyCrimes against Public OrderOther Offenses
Types of Crime
Aggravated AssaultMurder andNonnegligentManslaughterForcible RapeRobbery
Crimes Against Persons
Larceny/TheftBurglaryMotor Vehicle TheftArson
Crimes Against Property
Breach of the PeaceFighting/AffrayDisorderly ConductPublic DrunkennessUnlawful AssemblyCarrying WeaponsObstructing TrafficAnimal Abuse
Crimes Against Public Order
Crimes against Public WelfareCrimes against Public MoralityWhite Collar/Corporate CrimesModern CrimesCrimes Against the Government
Other Offenses

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_-CHAPTER TWO - global.oup.com