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Con  Volume No: 01 Chapter No: 01  Page i  Table of Contents
 
 
 

 

       

 

Criminal Law: A Basic Overview

The American judicial system distinguishes between civil and criminal law. In a civil action the action is prosecuted by the injured party seeking redress for the wrong committed against him./her. The action is generally titled "John Smith vs. Betty Jones." In a criminal proceeding the action is prosecuted by the state by and agent of the government -specifically the district attorney. In a criminal proceeding the injured or aggrieved party  is only a witness. The injured  person is not a party to the legal  proceedings. In a criminal  proceeding the parties are the state and the person or persons charged with a criminal offense. The action is generally entitled "The People vs. John Smith"

Generally law schools make a distinction between criminal law and criminal procedure and they are often taught as two separate courses. Criminal Law deals with the "elements" of the offense, the conduct of the perpetrator, (acteus reus) "mens rea.",  the necessary mental state of mind  "mens rea.", and the defenses. Criminal Law for example deals whether the essential that are necessary to constitute the a particular crime. Criminal procedure on the other hand deals with the process by which the criminal action is prosecuted through court process for the purpose of establishing and proving the existence of the elements of the particular crime in question beginning with arrest, trial and the appellate process..

Common Law Defined:  When lawyers  and judges speak of "common law," they may mean either the law as it existed during the Common Law period in England or law that is derived from a process of judicial development.  The intended meaning frequently is evident from the context.  For example, the "common law process" typically refers to the process of judicial law-making, whether or not it occurs during the Common Law period.  "The Common Law rule" usually refers to the legal rule that existed in England during the Eighteenth Century.  On the other hand, a minority of states continue to rely upon judicially-modified variations of the original Common Law rule.  Such rules may be referred to as "common law" rules even if they are significantly different from the rule described by Blackstone. Paul H. Robinson, Fundamentals of Criminal Law, 2d ed., pg. 61,  Little Brown And Company (1995).

Current Role of Common Law:  While no state continues to permit judges to create crimes, the common law continues to be important for several reasons.  Some state criminal codes incorporate common law offenses by name, without defining them.  Under so-called "reception" statutes, judicial decisions must be relied upon to determine the requirements of a common law offense.  In addition, because some codes are simply codifications of the previously-existing common law doctrine, ambiguity in code language that calls for an examination of the drafters' intent may require review of the cases in which the doctrine was developed.  Similarly, the common law cases may be referred to because they tend to explain the rationale behind the original rule, where the codification of the rule frequently does not.  An attorney seeking to persuade a court of the wisdom, or folly, of the policy behind a particular interpretation of a statute may look to common law cases to establish and explain the policy.  An excellent discussion of  the rules and techniques of statutory interpretation can be found in  in Chapter 5, covering The Legality Principle, Fundamentals of Criminal Law. Paul H. Robinson, Fundamentals of Criminal Law, 2d ed., Little Brown And Company (1995).

A "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Crimes include both felonies (more serious offenses -- like murder or rape) and misdemeanors (like petty theft, or jaywalking). No act is a crime if it has not been previously established as such either by statute or common law.

Historically, most crimes have been established by state law, with laws varying significantly state to state. There is, however, a Model Penal Code (MPC) which serves as a good starting place to gain an understanding of the basic structure of criminal liability.

In recent years the list of Federal crimes has grown.

All statutes describing criminal behavior can be broken down into its various elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or "actus reus" and a mental state, or "mens rea." Prosecutors have to prove each and every element of the crime to yield a conviction.

     

Basic sources of 
Criminal law

Federal Material

    Federal Constitution and Statutes
    Federal Agency Regulations
    Federal Judicial Decisions
State Material

    State Statutes
International Material
    Conventions and Treaties
Other References
    Key Internet Sources

Useful Offnet (or Subscription - $) Sources

  • Good Starting Point in Print: Wayne R. LaFave & Austin W. Scott, Hornbook on Criminal Law, West Group (2d ed. 1986 & Supp. 1998)

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Legal References

CRIMINAL LAW CASES AND MATERIALS
ARNOLD H. LOEWY
Graham Kenan Professor of Law 
University of North Carolina School of Law
CINCINNATI ANDERSON PUBLISHING CO.
© 1991 by Anderson Publishing Co. 
Library of Congress Cataloging-in-Publication Data
Loewy, Arnold H.
Criminal law: cases and materials / Arnold H. Loewy.p. cm.
Includes index.  ISBN 0-87084-544‑61
1. Criminal law-United States-Cases. Title
KF9218.165 1991
345.73‑dc20-[347.305]-91‑15528-CIP

 

CASES AND PROBLEMS IN CRIMINAL LAW
Myron Moskovitz
Professor of Law 
Golden Gate University, San Francisco
Third Edition, 1996
Anderson Publishing Co./Cinncinnati
© 1989, 1992, 1996 by Anderson Publishing Co. 
2035 Reading Road / Cincinnati, Ohio 45202 
800 582‑7295 / E‑mail: andpubco@aol.com / FAX: 513 562‑8110
Library of Congress Cataloging in Publication Data
Moskovitz, Myron.
Cases & problems in criminal law / Myron Moskovitz. ‑ 3rd ed. p.  cm.
ISBN 0-87084-563‑2
1. Criminal law-United States-Cases. I. Title.
KF9218.M67 1996
345.73-dc20  [347.305] 95-49865 CIP


California Judges benchbook
CRIMINAL PROCEEDINGS

Search and Seizure
Pretrial Proceedings 
Criminal Trials
(Posttrial Proceedings)
California Center For  Judicial Education And Research
Continuing Education of the Bar-California
Library of Congress Catalog Card Nos. 90‑86111 
(Search and Seizure) 90-82514 
(Pretrial Proceedings) 90-82512 
(Criminal Trials) 90-82513  ©1997, 1996, 1995, 1994, 1993, 1992, 1991, 1990 by 
Judicial Council of California 
Printed in the United States of America ISBN 0-7626-0122-1