The Nature of Criminal Law
To understand criminal law, it is necessary to distinguish criminal from civil law and to know the difference between substantive and procedural law.
Criminal law versus civil law
All law other than criminal law is known as civil law. It includes tort law (private wrongs and damages), property law, and contract law. Differences between criminal law and civil law are important because criminal proceedings are separate from civil actions. Table shows these differences.
Criminal law encompasses both substantive criminal law and criminal procedure. Substantive law defines proscribed behaviors and specifies penalties. Laws concerning murder, rape, and robbery are substantive in that they define unlawful acts. Procedural law consists of rules stating how the government proceeds against an individual accused of committing a crime. Trial by jury, the right to counsel, the right to appeal, and the right to face one's accusers are just a few examples of procedural law. Violations of these rights by the government are violations of due process. If the government violates procedural law, that violation can be grounds for appeal and for a reversal of a criminal conviction.
Functions of Criminal Law
Criminal law serves several purposes and benefits society in the following ways:
Maintaining order. Criminal law provides predictability, letting people know what to expect from others. Without criminal law, there would be chaos and uncertainty.
Resolving disputes. The law makes it possible to resolve conflicts and disputes between quarreling citizens. It provides a peaceful, orderly way to handle grievances.
Protecting individuals and property. Criminal law protects citizens from criminals who would inflict physical harm on others or take their worldly goods. Because of the importance of property in capitalist America, many criminal laws are intended to punish those who steal.
Providing for smooth functioning of society. Criminal law enables the government to collect taxes, control pollution, and accomplish other socially beneficial tasks.
Safeguarding civil liberties. Criminal law protects individual rights.
Legal Elements of a Crime
All crimes feature certain elements. Unless the government is able to prove the existence of these elements, it can't obtain a conviction in a court of law.
No crime without law
There can be no crime without law. If an act is to be prohibited, a legally authoritative body (such as Congress or a state legislature) must spell out in advance what behavior is banned. The U.S. Constitution forbids ex post facto laws, which declare certain acts to be illegal after the behavior occurs. The Constitution also requires that criminal laws be written in precise terms so that a citizen can determine what conduct is illegal.
No crime without a criminal act
In American criminal justice, the government punishes people for what they do rather than for what they think or say. The First Amendment protects an individual's freedom of thought and speech. The failure to act, however, can be a crime in situations in which an individual has a legal responsibility to do something. Tax laws and child‐neglect laws are two examples. Threatening to act and attempting a criminal act can both be criminal offenses. Similarly, conspiring to commit a crime is illegal. Conspiracy statutes criminalize taking steps to carry out a plan to commit a crime.
No crime without intent
Intent pertains to the state of mind or mental attitude with which a person does an act. A synonym for intent, mens rea, literally means “guilty mind”. The mental design or purpose to commit a crime is the essence of intent.
No crime without concurrence
For an act to be a crime, both the act and the intent must occur at the same time.
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