Issues of the Law
History of US Law and Legal System
The United States was founded as a British colony, which profoundly shaped its foundational legal framework.
Consequently, the foundation of our legal system is directly built upon British common law principles and their understanding of law, rather than civil law systems prevalent in other European nations.
This inheritance includes concepts like judicial precedent, trial by jury, and individual rights as evolved under English law.
Common Law
Refers to a body of unwritten laws based on legal precedents established by the courts, meaning it was “common” throughout all of England.
Developed in England primarily from the 11th century through the 17th century, evolving incrementally through judicial decisions.
Judges played a central role: they wrote and refined “common” laws for various crimes (e.g., murder, arson, robbery, assault) through their rulings in specific cases.
Emphasis on precedent: These judicial decisions were meticulously recorded and served as binding precedent (or stare decisis), which critically guides future decision-making by judges in similar cases.
This principle ensures consistency, predictability, and fairness in the application of the law.
Adaptability: Common law is dynamic; it evolves over time as society changes and new legal challenges arise, allowing judges to adapt legal principles to modern circumstances.
Influence on US Law: Upon independence, the newly formed American states largely adopted the English common law system, adapting it to their unique circumstances and eventually incorporating it into state and federal statutes and constitutional law. Many legal concepts and terminology used today in the US originated directly from this common law tradition.
Sources of Law in the US
Constitutional Law
Laws found in the US Constitution or in a state’s constitution.
It is the supreme law of the land, establishing the framework for government and defining the rights and liberties of individuals.
Both federal and state constitutions delineate governmental powers and limitations, with the US Constitution taking precedence in cases of conflict.
Statutory Law
Statutes are created by state and federal legislatures.
These are written laws passed by legislative bodies (e.g., Congress, state legislatures) that declare, command, or prohibit something.
They cover a vast array of topics, from criminal offenses to environmental protection, and are codified into legal codes.
The hierarchy generally places federal statutes above state statutes, provided they are within the scope of federal power.
Administrative Law
Laws created and enforced by administrative bodies.
These bodies, such as the Environmental Protection Agency (EPA) or the Food and Drug Administration (FDA), are created by legislatures to implement and enforce specific statutes.
They issue regulations (rules), conduct investigations, and adjudicate disputes within their areas of expertise, acting as a critical component of modern governance.
Case Law
Laws created by judges through their interpretation of other types of laws.
Also known as common law or judicial precedent, it is derived from judicial opinions and rulings in specific cases.
When judges interpret a constitutional provision, a statute, or administrative regulation, their decisions set binding precedent (stare decisis) for future cases with similar facts.
This source of law ensures consistency and adaptability, allowing legal principles to evolve with societal changes.
Types of Criminal Laws
Criminal laws are either:
Substantive: Defines what constitutes a crime and the penalties for those crimes. It specifies the rights and duties of individuals within a legal system. It answers the question of "What is criminal and what is not?"
Examples:
Civil Laws: Govern disputes between individuals or organizations, focusing on remedies for wrongs rather than punishment. Examples include contracts, divorce, child custody, and wrongful injury (torts).
Criminal Laws: Define offenses against the state or society as a whole. They outline specific behaviors that are prohibited and prescribe punishments for those who violate them. These laws typically involve violating governmental statutes, such as statutes prohibiting murder, theft, or assault.
It includes defining the elements of specific crimes, such as actus reus (the criminal act) and mens rea (the criminal intent).
Procedural: Establishes the methods and processes by which substantive laws are made, administered, and enforced by the justice system. It dictates how legal proceedings are conducted, ensuring fairness and due process.
Examples:
Bill of Rights: Many provisions in the Bill of Rights outline procedural protections for individuals accused of crimes, such as the right to a speedy and public trial, protection against unreasonable searches and seizures, and the right to counsel.
Trial by jury for criminal proceedings: Guarantees that individuals facing serious criminal charges (typically those potentially leading to 6+ months of incarceration) have the right to be tried by an impartial jury.
Habeas Corpus: A legal action that allows a person to challenge the legality of their confinement by the government, demanding that a court determine whether their detention is valid.
Rules of evidence, arrest procedures, search and seizure protocols, and the appeals process.
Types of Other Laws
Civil Law:
Encompasses all laws that are not criminal in nature. This broad category includes areas such as contract law, property law, family law, commercial law, and tort law.
Primarily focuses on resolving or controlling relations between private parties, whether individuals, businesses, or other non-governmental entities. The goal is often to provide remedies for wrongs or to enforce rights, typically through monetary damages or specific performance, rather than punishment.
Contract Law: Deals with agreements between parties and the enforcement of those agreements.
Property Law: Governs ownership and transfer of real and personal property.
Family Law: Addresses matters such as marriage, divorce, child custody, and adoption.
Tort Law: Laws for personal injury or civil wrongs where one party's actions cause harm to another, leading to legal liability for damages.
Evidentiary standard is less than criminal court: In civil cases, the plaintiff (the party bringing the lawsuit) typically needs to prove their case by a preponderance of the evidence, meaning it is more likely than not (>50\% chance) that their claim is true. This is a lower standard than the "beyond a reasonable doubt" required in criminal cases.
Public Law:
Law that governs the administration and regulation of city, county, state, and federal government agencies. It defines the relationship between the government and its citizens and dictates the organization and operation of governmental bodies.
This area ensures that governmental actions are lawful and that citizens' rights are protected in interactions with the state.
Key branches of public law include:
Constitutional Law: Focuses on the interpretation and application of the US Constitution and state constitutions, establishing governmental structure and individual rights.
Administrative Law: Regulates the functions and powers of governmental administrative agencies (e.g., EPA, FDA), including their rule-making, enforcement, and adjudication processes.
Criminal Law: Although also a distinct category, it falls under public law because it involves the state (the public) prosecuting individuals for offenses against society. It defines prohibited conduct and prescribes penalties enforced by the government.
Two Elements of Crime
Actus Reus
The "guilty act" or physical act of the crime. It refers to the physical act or conduct that constitutes a crime. It is the objective component of a crime, requiring a voluntary physical movement or omission.
Must be voluntary - either a conscious choice to do something, or a failure to do something when there is a duty to act. This means the bodily movement must be a product of the actor's conscious decision and not a mere reflex or involuntary action.
Involuntary acts, such as reflexes, convulsions, or acts performed while unconscious (e.g., during sleepwalking or an epileptic seizure), generally do not constitute actus reus because they lack conscious volition. However, if the person voluntarily placed themselves in a state where a dangerous involuntary act could occur (e.g., driving after taking medication known to cause drowsiness), they might still be liable.
Failure to act can often result in criminal liability (an "omission")
This occurs when a person is required by law to act, but fails to do so. This legal duty to act can arise from several sources:
Special Relationships: Such as parent-child, spouse-spouse, or employer-employee, where one person has a legal obligation to care for another.
Statutory Duties: Laws or statutes that explicitly require specific actions (e.g., mandatory reporting of child abuse, filing tax returns, or a driver's duty to stop after an accident).
Contractual Duties: Professionals like lifeguards, doctors, or nursing home staff who have a contractual obligation to provide care or protection.
Voluntary Assumption of Care: If a person voluntarily begins to care for another and then abandons them in a worse position, a duty of care may arise.
Creation of a Risk: If a person creates a dangerous situation, they may have a duty to take steps to prevent harm from occurring.
The omission must directly cause the prohibited harm, and the defendant must have had the ability (capacity) to act.
Mens Rea
The "guilty mind" or the mental state accompanying the actus reus. It refers to the criminal intent or culpability that distinguishes an accidental act from a criminal one.
How “blameworthy” is the offender? This element determines the level of moral fault and is crucial for assigning criminal responsibility. A person is only deemed deserving of punishment if they acted with a guilty state of mind.
Often this distinguishes the degree of sentencing (ex. first vs. second degree murder) and can lead to different charges (e.g., murder vs. manslaughter).
In many jurisdictions, and specifically in the Model Penal Code (MPC), mens rea is categorized into four primary levels, from most to least culpable:
Purpose (or Intent): The highest level of culpability. The offender has a conscious objective to engage in conduct of a certain nature and/or to cause a specific result. (e.g., intentionally shooting someone with the goal of killing them).
Knowledge: The offender is aware that their conduct is practically certain to cause a particular result, even if that result is not their conscious objective. (e.g., planting a bomb, knowing it will kill people, even if the primary goal is to destroy a building).
Recklessness: The offender consciously disregards a substantial and unjustifiable risk that their conduct will cause a certain result or that a certain circumstance exists. (e.g., driving at a very high speed on a crowded street, being aware of the risk of an accident but proceeding anyway).
Negligence: The lowest level of mens rea. The offender should have been aware of a substantial and unjustifiable risk, but failed to perceive it. This involves a gross deviation from the standard of care a reasonable person would observe in the same situation. (e.g., a hunter who shoots at movement in bushes without identifying the target, accidentally killing another person).
**Strict Liability **Crimes - liability is imposed without need to prove *mens rea* for at least one element of the crime.
These crimes typically involve public welfare offenses where the legislature has decided that the societal interest in protecting the public from harm outweighs the need to prove a culpable mental state. The mere commission of the actus reus is sufficient for conviction.
Examples commonly include:
(Improperly) storing flammable liquids or other hazardous materials.
Statutory rape - sexual activity with someone below the age of consent, regardless of whether the perpetrator knew the victim's age or believed they were of age.
Felony murder - when a person kills in the commission of another dangerous felony (e.g., robbery), intent to kill is not required; the intent to commit the underlying felony is sufficient.
Product liability - manufacturers, sellers, or distributors can be held liable for injuries caused by defective products, even if they were not negligent in the manufacturing process.
Traffic offenses (e.g., speeding) and violations of sanitary regulations.
General Intent - Intent to commit an act without the intent to achieve a specific result.
For general intent crimes, the prosecution only needs to prove that the defendant intended to perform the physical act itself, not necessarily the specific outcome. The intent can be inferred directly from the act.
Example: Intending to get drunk and then getting into a fight (battery). The intent to strike or make harmful contact is present, even if the intent to commit a serious assault was not initially formed.
Specific Intent - Intent to commit an act AND achieve a specific result.
For specific intent crimes, the defendant must not only intend to perform the physical act but also have a further mental purpose or desire to achieve a particular result or to do something additional.
Example: Intending to buy a gun with the specific purpose to kill your ex (premeditated murder). Here, the intent to kill is the specific result targeted, distinguishing it from an act without such a defined objective.
These crimes often include the words "with the intent to," "for the purpose of," or involve offenses like burglary (intent to commit a felony therein), larceny (intent to permanently deprive owner), or assault with intent to commit a serious felony.
Additional Considerations
Causation
In criminal law, causation establishes the link between a defendant's actions (the actus reus) and the resulting harm or prohibited outcome. It is a fundamental element that the prosecution must prove beyond a reasonable doubt.
Factual Causation (Cause-in-Fact): Also known as "but-for" causation. The harm would not have occurred but for the defendant's actions. If the result would have happened anyway, the defendant's act is not a cause in fact.
Example: If a person shoots another, and that person dies, the death would not have occurred but for the shooting.
Legal Causation (Proximate Cause): This is a more complex concept that determines whether it is fair to hold the defendant criminally responsible for the harm. It considers whether the harm was a foreseeable result of the defendant's actions.
Direct Cause: Occurs when an individual’s behavior directly causes harm, without any significant intervening factors breaking the chain of causation. The defendant's act is the immediate cause of the injury.
Intervening Causes: These are events that occur between the defendant's act and the harm. An intervening cause can break the chain of proximate causation, relieving the defendant of liability, if it is unforeseeable and sufficiently independent.
Concurrent Cause: Involves situations where multiple potential causes contribute to the crime or harm. If two independent acts occur, and either alone would have been sufficient to cause the harm, both actors can be held liable.
Foreseeability: A key aspect of proximate cause. The harm must have been a reasonably foreseeable consequence of the defendant's actions. If the harm is too remote or unexpected, proximate cause may not be established.
Harm
A particular harm, injury, or potential for harm generally needs to be present for criminal liability to attach. The law does not typically punish thoughts or acts that cause no actual or potential detriment.
Engaging in an actus reus must cause some sort of harm to a protected person, place, or thing. This harm can be:
Physical Harm: Injury to a person's body (e.g., assault, battery).
Property Harm: Damage to or loss of property (e.g., theft, vandalism).
Psychological/Emotional Harm: Though harder to quantify, some crimes recognize psychological distress as harm (e.g., stalking, harassment).
Societal Harm: Harm to the collective well-being, public order, or moral fabric of society, even if no individual victim is directly identifiable.
Victimless Crimes: These are offenses where harm is not done directly to an identifiable individual or their property, but are nonetheless criminalized based on the societal harm they are perceived to cause.
Examples commonly include:
Drug Use/Possession: While the user might not perceive themselves as a victim, society may justify criminalization on grounds of public health risks, potential for addiction, strain on public resources, or associated criminal networks.
Gambling (Illegal): Seen as potentially harmful to families, individuals (leading to financial ruin), and as susceptible to organized crime.
Prostitution/Sex Work/Solicitation: Often criminalized due to concerns about exploitation, human trafficking, public morality, and the potential for related criminal activity.
The justification for criminalizing these acts often rests on the idea that they negatively impact public order, safety, governmental integrity, or collective moral values, even if a direct, consenting "victim" is absent.
Defenses to Criminal Liability
Justification Defenses
Necessity
Self Defense
Defense of Others/Property
Consent
Law Enforcement
Excuse Defenses
Intoxication
Infancy/Age
Duress (under coercion or force)
Entrapment
Mistake of Fact
Mental Capacity (Diminished Capacity, Insanity)
Justification Defenses
Justification Defenses - also known as Affirmative Defenses
These defenses assert that while the defendant committed the prohibited act, the act itself was not wrongful under the specific circumstances, but rather socially acceptable or even desirable.
They focus on the act and whether the (criminal) act was socially acceptable under the circumstances.
The defense effectively argues, “My client did it but has a good reason that makes the act permissible.”
**Necessity **- Used when people break the law in order to save themselves or prevent some greater harm.
This defense requires that the defendant was faced with a real, imminent threat of harm, had no reasonable legal alternative to violating the law, and the harm avoided was greater than the harm caused by their illegal act.
Example: A person who speeds through a red light to get an injured child to the hospital could claim to be violating the law out of necessity, as the immediate harm (child's life) outweighs the traffic violation.
Self Defense
A person who is in immediate danger of being harmed by another person may ward off an attack in self-defense.
This defense typically requires a reasonable belief that force is necessary to prevent imminent serious bodily harm or death. The force used must be proportional to the threat.
The laws of most states recognize the right to defend others from attack, to protect property, and to prevent a crime.
The level of force used in self-defense cannot exceed the person’s reasonable perceptions of threat. Deadly force is generally only permissible when facing a threat of deadly force.
The "retreat rule" varies by jurisdiction: some require a person to retreat if safely possible before using deadly force, while "stand your ground" laws permit the use of force without retreating.
Consent
This defense argues that the victim consented to being a victim of the crime, thereby negating an element of the crime (e.g., battery requires non-consensual touching).
Because they consented, there is no crime that occurred, or the element of non-consent is missing.
Questions to determine valid consent:
Age: Minors are generally presumed incapable of consenting to certain acts, especially sexual acts.
Mental Capacity: Individuals with severe cognitive impairments (e.g., advanced Alzheimer’s disease, profound intellectual disability) may lack the capacity to give informed consent.
Coercion/Fraud: Consent obtained through force, threats, or deception is not valid.
Questions regarding limits of consent:
Not all harms can be legally consented to (e.g., one cannot consent to serious bodily injury or death).
Consent to an act without knowing the full consequences or material facts may not be valid.
Consent can be withdrawn at any time.
**Law Enforcement (and Other Public Officials) - **Crime committed while on duty as a first responder.
This defense applies when public officials, acting within their lawful authority, commit actions that would otherwise be criminal (e.g., using force during an arrest, driving above the speed limit).
For qualified immunity (which typically applies more broadly to civil liability but can influence criminal cases):
Actions must be objectively reasonable and within the scope of their official duty.
Their actions are protected unless some type of gross negligence or malicious intent can be proven.
This defense is also typical for criminal charges and civil cases, shielding officers from liability if their actions were objectively reasonable in light of clearly established law and the information they possessed at the time.
Excuse Defenses
Excuse defenses
Unlike justification defenses, excuse defenses do not claim the act was right, but rather that the actor should not be held responsible due to a personal disability or circumstance that prevents culpability.
They focus on the actor and whether the actor fulfilled all the required mental elements of a crime (e.g., mens rea).
Typically emphasize a lack of mens rea (intent) - which is intended to emphasize that they are not morally culpable and thus not liable.
The defense effectively argues, “My client did it but has a good excuse for why they shouldn't be blamed.”
Elements considered: An excuse defense argues that one or more of the fundamental elements of a crime were not present, particularly the mental state:
Actus reus (the guilty act)
Mens rea (the guilty mind/intent)
Attendant Circumstances (facts surrounding the event)
Causation (link between act and harm)
Harm (the resulting injury or damage)
Duress (or Coercion)
A person commits a crime, but had no other choice due to an immediate and unavoidable threat of serious harm from another person.
Often, they were trying to prevent harm to or death of themselves or others, acting under compulsion.
This defense can be used when:
Crime is committed after being coerced by another person where there is an imminent threat of death or serious bodily injury.
Usually requires the person to have tried to escape from the situation if possible and safe to do so, and the threat must be ongoing and inescapable.
Typically, the defendant lacks the required mens rea as their will is overborne by the threat.
Example: If during a bank robbery, an armed robber was to force one of the bank’s customers at gun point to drive the getaway car, the customer would be able to claim duress, as they acted under an immediate threat to their life.
Entrapment
An excuse defense that claims someone was induced by law enforcement to commit the criminal act, and they would not have committed it otherwise.
The use of extreme means by law enforcement to pressure an otherwise innocent person to break the law.
This defense raises questions of police misconduct and due process.
Case law examples: Courts use either a subjective test (focusing on the defendant's predisposition to commit the crime) or an objective test (focusing on whether the police conduct would have induced a normally law-abiding person to commit the crime).
“My client did it, but should be acquitted because the police or prosecutor cheated by creating the crime.”
Example: Police pose as a sex worker and aggressively solicit someone who shows initial reluctance, eventually persuading them to pay for (intended) sexual activity, where the person had no prior inclination to commit such an act.
Infancy/Age
Criminal acts of children are excused on the grounds of their infancy, or immaturity, and lack of responsibility for their actions (doli incapax).
Typically, only for juveniles under the age of 14, though specific age cutoffs vary by jurisdiction. Often, there is a rebuttable presumption that children under a certain age cannot form criminal intent.
Recognizes that children do not yet have the capacity to understand appropriate behavior, comprehend the wrongfulness of their actions, or fully appreciate the consequences of behavior.
A child is considered incapable of forming mens rea (criminal intent) for serious offenses, leading to cases being handled in juvenile courts or defenses against adult charges.
Mistake of Fact
This defense occurs when someone does not understand the full nature of their action or genuinely believes a certain fact to be true, which, if true, would mean their actions were not criminal.
They committed the act, but due to a genuine misunderstanding or ignorance of a material fact, the act lacks the required mens rea.
Ignorance of the law is generally not an excuse, but some extenuating circumstances in the form of ignorance of fact may serve as an excuse for the crime.
Example: You buy a car from someone you believe to be the rightful owner of the car. A few days later, you are stopped by the police while driving. The police tell you the car is stolen. Here, you could potentially use the excuse defense because you lacked the mens rea (intent to permanently deprive the owner) for theft, as you genuinely did not know the car was stolen.
Crucially, they never had the required mens rea—the specific criminal intent is missing because of the factual error.
Intoxication
Generally, intoxication (by alcohol or drugs) does not automatically relieve a defendant of responsibility, especially if voluntary.
This defense argues that because of severe intoxication, the defendant did not:
Understand the nature of their actions (e.g., they thought they were playing, not hitting).
Know what they were doing or form the specific intent required for certain crimes.
Involuntary Intoxication: Occurs when a person has been tricked, forced, or unknowingly consumed substances. This can be a complete defense if it negates mens rea for any crime, as the intoxication was not self-induced.
Voluntary Intoxication: Occurs when a person intentionally consumes substances. While it's generally not a defense for general intent crimes (since the intent to become drunk is usually sufficient for the physical act), it can be a defense for specific intent crimes if the intoxication was so severe that it prevented the defendant from forming the necessary specific intent (e.g., intent to kill in premeditated murder).
Mental Capacity: Diminished Capacity
This is a partial defense where certain people are incapable of reaching the specific mental state (mens rea) required to commit a particular specific intent crime due to a mental impairment.
The defendant can't form the specific mens rea for the crime (e.g., intent to kill in first-degree murder, but may still possess the mens rea for a general intent crime like manslaughter).
This inability stems from underlying mental impairment, mental illness, or disorder, but it does not rise to the level of legal insanity.
Typically results in the defendant being convicted of a lesser offense (e.g., second-degree murder or manslaughter instead of first-degree murder) because a higher degree of intent could not be proven.
Mental Capacity: Insanity
This is a legal defense (not a medical one) that attempts to provide physical or psychological reasons that a defendant, at the time of the crime, cannot comprehend their criminal actions, the harm they caused, or their punishment, due to a severe mental disease or defect.
Case Law examples are crucial in defining the scope and application of insanity defenses.
U.S. courts use five main tests, or standards, to determine criminal responsibility for insanity.
Each state may adopt a different standard or test, or a combination of standards or tests, to determine whether criminal acts were the product or consequence of insanity, reflecting varied legal philosophies on mental culpability.
Insanity Defenses Tests and Rules
M’Naghten Rule (Right-from-Wrong Test)
Did the defendant, at the time of committing the act, labor under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong?
This test has two prongs: (a) the defendant did not know the nature and quality of his act (e.g., believed he was squeezing a lemon, not a neck), or (b) the defendant knew the act but did not know it was wrong (morally, or legally in some interpretations).
Irresistible Impulse Test
The person could not control their conduct because of a mental illness, even if they knew what they did was wrong. While they understood the wrongfulness of their act, their mental disease prevented them from resisting the impulse to commit it.
This test addresses situations where mental disease compels an individual to act, essentially overriding their free will.
Durham Rule (Product Test)
The act was caused by a mental illness or defect.
This rule is very broad, stating that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. It sparked controversy due to its vagueness and the influence it gave to psychiatric testimony.
Moral Penal Code’s Substantive Capacity Test
The person was not responsible for the act if, as a result of mental disease or defect, they lacked substantial capacity either to appreciate the criminality (wrongfulness) of their conduct or to conform their conduct to the requirements of the law.
This test combines elements of M'Naghten and irresistible impulse, seeking a middle ground by focusing on a substantial lack of capacity rather than a complete one.
Comprehensive Crime Control Act of 1984
Enacted federally after the acquittal attempt of John Hinckley, Jr. for the shooting of President Reagan. This act significantly narrowed the federal insanity defense.
The person accused of a crime must prove, by clear and convincing evidence, that they lacked the capacity to appreciate the wrongfulness of their conduct due to a severe mental disease or defect.
This standard is often seen as a stricter version of the M'Naghten Rule. If found not guilty because of insanity, the defendant must be sentenced to a psychiatric hospital until they are deemed to no longer be a threat to society.