The Rule of Law Lecture Notes

The Rule of Law

I. Two Types of Law: Criminal Law and Civil Law

  • Criminal Law Definition: A formal means of social control involving enforceable rules by courts of a political community, setting limits on conduct and defining deviance.

    • A crime is a violation of the criminal law or penal code of a jurisdiction.

    • A tort is a violation of civil law and is considered a private matter between individuals.

A. Substantive versus Procedural Law

  • Substantive Law: Defines criminal offenses and their associated penalties, governing allowable conduct as found in penal codes.

  • Procedural Law: Governs how substantive laws are administered; focuses on due process rights for those suspected or charged with crimes.

B. Ideal Characteristics of the Criminal Law

  1. Politicality: Only violations of the state's rules are considered crimes; crimes must originate from a legitimate political authority.

  2. Specificity: Laws must provide clear definitions of criminal acts to avoid ambiguity.

  3. Regularity: Laws should apply equally to all persons, irrespective of their social status.

  4. Uniformity: Criminal laws must be enforced consistently, ensuring equal administration regardless of social standing.

  5. Penal Sanction: Violators are subject to punishment by the state; including five types of sanctions: punishment, restitution, compensation, regulation, and rehabilitation.

C. Criminal Law as a Political Phenomenon

  • Criminal law is crafted by humans to control behaviors within society; its definitions are politically constructed.

  • Crime is not inherently defined; it arises from the state's actions and perceptions.

D. Origins of Laws

  • Formal laws emerged around 5,000 years ago, tied to property and governance.

  • The first written laws around 3000 B.C. were from Ur in Sumeria.

  • Hammurabi (1792–1750 B.C.): Noted for the first significant code of laws.

E. England’s Contribution to American Criminal Law

  • Magna Carta (1215): Forced King John to adhere to law, establishing checks on royal power, due process and the rule of law, fundamentally affecting American legal principles.

F. Creating Criminal Laws in the United States

  • U.S. criminal laws arise from both constitutional authority and legislative enactments.

  • Influences include common law and regulatory agency decisions.

G. Native American Criminal Law and Its Administration

  • The first criminal justice practiced was among Native Americans, with the Cherokee nation having an early legal system focused on restorative justice rather than punitive measures.

  • Cherokees adapted to colonial laws by the 18th century.

H. Constitutions and Legislative Bodies

  • Constitutions empower the creation of legislative bodies responsible for enacting laws and limiting crime definitions.

    • Federal laws are enacted by Congress; state laws by legislatures; municipal laws (ordinances) by local councils.

I. Common Law

  • Common Law: Evolved from judicial decisions and precedents; serves as a basis for future case rulings (stare decisis).

J. Administrative or Regulatory Agency Decisions

  • Agencies following statutory guidelines create rules and render decisions with legal authority.

II. Procedural Law: Rights of the Accused

  • Most procedural rights for suspects arise from the Bill of Rights, with additional rights in state constitutions and laws.

A. The Bill of Rights

  • Initially applied only to the national government; most provisions now applicable to the states through Supreme Court rulings, except for the grand jury indictment which remains federal only.

B. The Fourteenth Amendment and Selective Incorporation

  • Fourteenth Amendment (1868): A significant legal concept that aimed to extend Bill of Rights protections to state-level criminal cases.

  • Selective incorporation began in the 1960s, extending many rights to defendants at the state level.

C. The Fourth Amendment

  • Text: Protects against unreasonable searches/seizures and requires warrants based on probable cause.

  • Searches: Inspections by law enforcement for evidence of crimes.

  • Seizures: Taking persons or property into custody due to law violations.

  • Warrants: Written orders from courts needed to conduct searches or make arrests, based on probable cause.

D. Searches and Seizures with a Warrant

  • Requires probable cause: evidence must suggest that specific objects linked to criminal activity will be found in the searched area.

E. Arrests with a Warrant

  • Most arrests occur without a warrant; warrants granted based on substantial evidence of law violations.

F. Searches and Seizures Without a Warrant

  • Warrantless searches permissible under specific circumstances, e.g., valid consent or exigent circumstances.

  • Suspects arrested without a warrant must receive a judicial review of probable cause.

G. Standards of Proof

  • Varied levels of evidence required for legal actions:

    • Mere suspicion: least certainty, cannot legally stop a suspect.

    • Reasonable suspicion: requires a tangible basis for suspicion.

    • Frisking: searching for weapons palpably on suspect.

    • Probable cause: reasonable belief a crime occurred.

    • Preponderance of evidence: more likely than not.

    • Clear and convincing evidence: highly probable.

    • Beyond a reasonable doubt: standard for criminal guilt.

    • Proof evident, presumption great: needed for bail denials in capital felony cases.

H. The Exclusionary Rule

  • Established to exclude illegally obtained evidence from trials to deter police violations of Fourth Amendment rights with recognized exceptions (e.g., good faith, inevitable discovery).

I. The USA PATRIOT Act

  • Passed after 9/11, expanded law enforcement's surveillance capabilities significantly with fewer checks/balances, creating the new crime of "domestic terrorism," and reauthorized multiple times since.

J. The Fifth Amendment

  • Text: Protects against facing charges without grand jury indictment, being tried for the same offense twice (double jeopardy), self-incrimination, and ensures due process.

    • Right to grand jury indictment has yet to be applied at the state level but protections against double jeopardy have.

K. Protection Against Self-Incrimination

  • Significant safeguard from forced confessions; the Miranda v. Arizona case mandated specific rights advisement to suspects.

L. The Sixth Amendment

  • Text: Guarantees rights to a speedy and public trial, impartial jury, notice of charges, confrontation of witnesses,
    compulsory process for obtaining witnesses, and assistance of legal counsel.

M. The Eighth Amendment

  • Text: Prohibits excessive bail/fines and cruel/unusual punishment, with specific interpretations concerning capital punishment.

III. Protecting the Accused from Miscarriages of Justice

  • Procedural rights aim to prevent wrongful convictions and ensure the presumption of innocence until proven guilty.

  • Eyewitness misidentification is a major contributor to wrongful convictions; defendants may admit guilt for immediate release, reflecting the complexities in proving innocence.

  • Exonerations: Instances where individuals previously convicted are found innocent based on new evidence, a rare outcome in the larger context of wrongful convictions.