Criminal Justice Exam Notes
Social Contract Theory
Based on the idea that individuals willingly give up some freedoms and follow rules to benefit their lives.
Forms the foundation of societal rules and laws.
Rousseau’s Insistence on the Individual in the Social Contract
Rousseau viewed people as free individuals born with a tabula rasa.
The surrender of freedoms to a sovereign is a gift from the people.
Emphasized the importance of recognizing ourselves as "a people" before surrendering to a sovereign.
Considering living together signifies recognizing ourselves as a people, creating a relationship.
Rousseau’s Concept of the General Will
The "general will" represents the collective interest of society, a shared idea of the common good.
It is not simply the sum of individual wills but emerges when people agree to live under shared laws, realizing the social contract.
Legitimate political authority must be based on the consent of the governed, protect individual freedom while maintaining social order, and derive from the general will of the people.
The Latin phrase “e pluribus unum” (one out of many) on the greater coat of arms of the United States of America symbolizes this concept.
Criminal Law and Civility
Criminal law is central to creating obligations in modern practices.
It links civic obligations with a person’s subjective understandings of responsibility.
Civility is our personal obligation to one another and must not be seen as simply a "virtue."
Focus should be on institutions and practices that offer ways to adjust our conduct towards each other and provide ways to think about our collective self-consciousness.
Criminal law provides the space for us to define our civility—our “basic” mutual obligations to one another.
Civility needs to be actively maintained as it shapes our actual definition as a society and retains our mutual obligations.
Criminal justice systems are an essential part of our social consciousness, shaping and influencing how we see each other and providing a degree of understanding for how we are to be treat one another.
Modernity and Risk
Modern society is more dynamic than previous social orders due to reflexivity, time-space distanciation, individualisation, and gender shifts.
Trust in abstract systems is the condition of time-space distanciation.
Risk is a predominant focus on the future brought about by human activity.
The future is seen as a territory to be conquered or colonised, yet often seems out of control due to the dynamic nature of modern institutions.
Beck’s Conception of the Risk Society
Modern societies are shaped by the production and management of risks.
This contrasts with traditional societies primarily concerned with managing natural risks.
Risks are predominantly manufactured and widespread across spatial and social boundaries.
Citizen’s Arrest in Hong Kong
In Hong Kong, the citizen’s arrest power is also called the “101 power” because it is found in Section 101 of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong).
One can only arrest for an “arrestable offence,” which is defined as an offence for which the sentence is fixed by law or for which a person may be sentenced to imprisonment for more than 12 months. This includes attempts to commit such offences (Section 3 of the Interpretation and General Clauses Ordinance, Cap. 1).
The person making the arrest must have reasonable suspicion that the individual has committed or is committing an arrestable offence. This suspicion must be based on facts and circumstances that would lead a reasonable person to believe an offence has occurred.
General Conceptions of Police Around the World
Policing is one of the most important functions undertaken by every sovereign state and government.
Police ensure maintenance of law and order and are the first link to the criminal justice system for most people in a sovereign state.
The police are representations of a civil body politic, the power and sanctity of a state’s political order, the means by which political authorities maintain status quo, the capacity of the state of deter people from acts of social disorder, and a corporate identity of police officers.
Overall Goals of Police Forces Around the World
Enforce a state’s laws.
Preserve peace and the social order.
Prevent crimes within society.
Protect civil rights and liberties.
Provide services where use of force may be required.
Policing by Consent: Peel’s 9 Principles of Policing
Prevent crime and disorder as an alternative to the use of the military.
Recognise police power is dependent on public approval.
Secure and maintain the respect and approval of the public to secure cooperation.
Understand cooperation of the public diminishes proportionally to police use of force.
Preserve public favour through constant demonstration of impartial service to the law.
Use physical force only where all other means have failed to secure public cooperation.
Maintain a relationship to makes real the history tradition that the public are the police and the police are the public.
Always strictly adhere to police-executive functions, and not go beyond those functions.
Know that the test for police efficient is absence of crime and disorder, not the appearance of dealing with those issues.
Classifying Police Organisations by Command Structure
Single police force with centralised command: State has one police force with localised representatives and a clear command hierarchy that comes under a single commander.
Multiple police forces with a coordinated command structure: State has multiple police forces in clearly defined jurisdictions. Centralised forces are organised through a larger command while decentralise forces have no clear central command structure.
Multiple police forces with individual command structures: State has multiple police forces and jurisdictions of those forces can potentially overlap. Each force has its own command structure but there is no larger form of command structure beyond the legal and constitutional framework of the state.
Command Structure of the Hong Kong Police Force (HKPF)
Controlled by the Hong Kong Government’s Security Bureau, which is part of Hong Kong’s Executive Branch.
Part of 6 Disciplined Services that report to the Bureau.
“One Country, Two Systems” Principle: HKPF is independent of China’s Ministry of Public Security
All officers are civil servants and pledge allegiance to the Hong Kong Basic Law
Structure: Overall commander in the Commissioner of Police who reports to the Secretary of Security and the Chief Executive.
Three Deputy Commissioners of Police: Operations, Management and National Security.
HKPF’s Operations see Hong Kong divided into 6 regions: 5 land regions and 1 marine region.
Policing in the Risk Society
Policing in modern societies is preoccupied with risk and is best understood through the practice of risk communication.
Policing consists of police force coordinating with security entities in other institutions to provide a society-wide basis for risk management (governance) and security (guarantees against loss).
Risk communication comes with its own logics and autonomous processes because communication systems themselves have their own rules that are used to make things real.
Understanding police work in the risk society requires examination of the communication systems that police are a part of in order to understand how those communication systems direct police organisation and assessment.
Quinney’s Thesis on the Social Reality of Crime
Crime is not solely an individual act but rather a result of broader social factors, such as economic inequality, social arrangements that hinder individual and collective potential, and participatory injustice.
Media plays a role in influencing public perceptions of crime and justice, which in turn shape societal responses to crime.
This is the study of "newsmaking criminology", which studies the media’s role in the framing of crime.
Quinney’s 6 Propositions on the Social Reality of Crime
Crime is a product of legal definitions.
Crime is behaviour that conflicts with the interests of segments that have the power to shape policy.
Powerful segments enforce and administer the law.
People in less powerful segments of societies are more likely to have their behaviour criminalised.
Conceptions of crime are constructed and diffused into different segments of society by the mass media.
Social reality of crime is constructed by formulation and application of criminal definition.
Merton and How Deviance Is Made
Merton’s main contribution to the study of deviance and crime is found in his proposition of strain theory.
Strain theory explains the relationship between the social structure and individual deviant behaviour.
Anomie: a state of normlessness or breakdown of social norms, which is when, individuals experience a difference between culturally prescribed goals and the means to achieve them.
Anomie then creates strain upon the individual.
When individuals experience strain, they are required to adapt to continue functioning in society.
Merton and the Social’s Process of Creating Deviance
Conformity: when individuals accept the cultural goals and have the means to achieve them.
Innovation: when individuals accept the cultural goals but use deviant means to achieve them.
Ritualism: when individuals cannot achieve the cultural goals but continue to obey the means.
Retreatism: when individuals reject the cultural goals and reject the means and withdraw from society.
Rebellion: when individuals reject the cultural goals and reject the means and seek to replace them.
Merton notes that not all social structures equally distribute strain throughout society, and that certain social structures—such as poverty and inequality—increase the likelihood of individuals in them to experience strain and thus increases deviant behaviour.
Key Difference in Legal Systems
Common law systems are adversarial:
The defendant is accused of crime by the state, embodied by the prosecutor, and the case is adjudicated by an impartial judge or jury in a highly structured system (due process).
Rules of evidence are based on a system of objections by the adversaries and what items may lean the judge or jury to determine the decide one way or another.
Cases are not decided by the truth but by the game of evidence, argument and objections.
The game is over when the defendant confesses to a crime and the case can progress to sentencing.
In these systems, defendants may plead guilty for reduced sentences, which is known as plea bargaining.
In adversarial systems, prosecutors bring the force of the state’s law into the court and work to prejudice judge or jury towards a guilty verdict against the defendant.
Civil law systems are inquisitorial:
This means the court is actively involved in finding out the facts of the case.
Hong Kong is the only East Asian society that does not adopt a civil law system.
Judges actively participate in fact-finding through assessing and questioning the police and prosecutors as well as defence lawyers and witnesses.
Inquisitorial system applies to the way in which criminal inquiries and trials are conducted, not what crimes should be prosecuted. It generally believes that conclusions are natural if rules are followed.
Cases are decided on a case-by-case basis and a code of law is used to determine the truth of the matter.
Even when the defendant pleads guilty, the case is not immediately done since the prosecutor still has to independently prove that the defendant is, indeed, guilty.
In these systems, plea bargaining is not a common concept.
In inquisitorial systems, prosecutors represent the force of the state’s law and work to explain the state’s case for punishing the defendant.
The Increasing Power of Prosecutors
United States are dedicated public servants whose primary aim is to bring criminals to justice.
Within the adversary system, however, they represent only one point of view, and under that system, we let neutral players—judges—resolve competing points of view.
When advocates of one side are given near-total power over the resolution of such disputes, then balance is lost and abuses are inevitable.
Plea bargaining is the source of this increasing prosecutorial power but it lacks both constitutional and historical grounding.
To deal with an overload in the criminal justice system, prosecutors increasingly offered criminal defendants the opportunity to plead to lesser charges, hence the “plea bargain” was born.
Through the decades, there a shift in sentencing power has gone towards prosecutors as plea bargaining is increasingly how cases are decided.
The Influence of Body Camera Evidence on Prosecutors’ Decisions
Prosecutor may choose not to prosecute based on “downstream” concerns regarding anticipated moves by defence, and judge and juror responses to testimony, especially with regard to victim credibility.
This is especially noted in sexual assault cases where victim character and behaviour were particularly noted in non-stranger assaults.
Prosecutors had an expectation of how the jury may evaluate information or the absence of information to decide where to prosecute or not.
One factor that influenced these decisions was that jurors relied more heavily on body camera evidence in comparison to testimony, especially when video footage should be available
Juries may acquit or even refuse to indict a defendant on the grounds that no body camera footage was there to corroborate the statement and claims of witnesses and victims.
The Impact of Widespread Body Camera Technology
Widespread body camera technology in American policing has led to the perception that juries favoured video evidence over testimony.
Prosecutors were more concerned than police when video footage was not available perhaps because the lack of video weakens the prosecution’s narrative and increases uncertainty about case outcomes.
Prosecutors and police commented that jurors speculated, inquired about, or asked if video existed in post-deliberation debriefings and absence of video change the way bargains can be reached, cases filed, and their resolutions.
Summary of Key Points About Body Camera Footage
Prosecutors and police understand how absence of video is perceived to influence jurors and negotiations between defence and prosecution.
The anticipation of the “video CSI-effect”, given the jury’s role in establishing bargaining expectations and the uncertainty they introduce, has developed into concrete responses in dismissals, negotiations, and presentations to the jury.
Having the jury as a referential backdrop for case negotiations illustrates the importance of body cameras on the anticipated change for local adjudication. These cameras are now a vital addition to the “reality” that makes up the story-telling of a case and a check on police reports.
Common Law Characteristics
Judicial discretion: judges have a certain degree of discretion in interpreting and applying the law. This discretion allows judges to consider the unique circumstances of each case and make fair and just decisions. However, it also means that law can be subject to varying interpretations and outcomes.
Stare decisis: principle that courts should adhere to established precedents and not disturb settled legal principles. This principle promotes consistency and stability in the legal system by discouraging frequent changes in legal interpretation.
Role of juries: often involves the use of juries in certain types of cases, such as criminal trials. Juries are responsible for determining questions of fact, while judges provide guidance on matters of law.
Emphasis on individual rights: places a strong emphasis on protecting individual rights and liberties. It seeks to ensure fairness and justice in legal proceedings and provides avenues for individuals to seek redress for grievances.