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Criminal Law: A Basic OverviewThe 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" 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). 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.
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Legal References
CRIMINAL
LAW
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